/raid1/www/Hosts/bankrupt/CAR_Public/140625.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, June 25, 2014, Vol. 16, No. 125
Headlines
ABBVIE INC: Faces ANDROGEL(R) Products Suit in E.D. La.
ABBVIE INC: Faces AndroGel Suit in Cook County Court in Ill.
ANNIE'S INC: Glancy Binkow Files Investor Class Action in Calif.
ARTDALE INC: Violates Fair Labor Standards Act, Class Claims
BAE SYSTEMS: Judge Tosses Bid to Pare Down Sex Bias Class Action
BANK OF NEW YORK: Investors Sue Over Mortgage Securities Losses
BIO-ENGINEERED SUPPLEMENTS: Moved "Conde" Suit to C.D. California
BIOZOOM INC: Peiffer Rosca Law Firm Files Investor Class Action
BRIDGETON LANDFILL: Opt-In Deadline Extended to July 18
BUSINESS DELIVERY: "Fletcher" Class Suit Removed to N.D. Texas
CAPITAL ONE: Removed "Van Dyke" Class Suit to M.D. Florida
CB RESTAURANTS: Accused of Violating Fair Labor Standards Act
CEDAR FAIR: Still Faces Suit Over Park Employee Check-Out Process
CENTURION AIR: Removed "Marin" Suit to S.D. Florida
CITIBANK NA: Judge Rejects Arbitration Bid in Miles Reward Suit
COLORADO OIL: Lafayette Citizens' Class Action Seeks Fracking Ban
CSX TRANSPORTATION: Files Motion to Dismiss Class Action
DAIRY FARMERS: Judge Allows Antitrust Class Action to Proceed
DELTA HEALTH: Accused of Violating Fair Credit Reporting Act
DOLE PACKAGED: Mislabeled Products as "All Natural," Suit Claims
ELECTROLUX: Dec. 15 Settlement Claim Form Submission Deadline Set
EVERBANK NA: Faces "Wilson" Suit in Southern District of Florida
FAIRWAY GROUP: Faces FLSA Violations Lawsuit in N.Y. Court
FAIRWAY GROUP: Still Faces Securities Lawsuits in New York Court
FOREST LABORATORIES: Has Settlement in Suit Over Actavis Sale
GE CAPITAL: Settles Credit Card Marketing Suit for $225 Million
GENERAL MOTORS: 2007 Report Shows Evidence of Ignition Defect
GENERAL MOTORS: Recalls 3 Million Cars Over Ignition Switch Issues
GENERAL MOTORS: Legal Team Under Spotlight Over Recall Controversy
GENERAL MOTORS: To Create New Industry Safety Standard, CEO Says
GOOGLE INC: Judge Expresses Doubts on Fairness of Settlement
HAWAII: State Hospital Employees to File Class Action
HEALTH MATTERS: Salmonella Outbreak Linked to Chia Powder
HULU: Judge Tosses Video Privacy Class Action
JOE ARPAIO: Faces Another Suit Over Arrest of Immigrant Workers
KANGADIS FOOD: Files Bankruptcy Petition to Halt Class Action
KEURIG GREEN: "Gray" Suit Consolidated in Single-Serve Coffee MDL
KEURIG GREEN: "Hudson" Suit Included in Single-Serve Coffee MDL
KEURIG GREEN: "Major" Suit Included in Single-Serve Coffee MDL
KEURIG GREEN: "Nelson" Suit Included in Single-Serve Coffee MDL
KEURIG GREEN: Purchaser Suit Included in Single-Serve Coffee MDL
KEURIG GREEN: "Rehma" Suit Included in Single-Serve Coffee MDL
KING PHARMACEUTICALS: Sept. 22 Settlement Fairness Hearing Set
KRAFT: Recalls Velveeta Cheese Over Food Borne Illness Risk
LAKEVIEW LOAN: Violates Fair Debt Collection Act, Class Claims
LOS ANGELES CLIPPERS: Interns File Wage Class Action in California
LOWE'S: Settles Installers' Class Action for $6.5 Million
MEDTRONIC INC: Sued for Misrepresenting Bone-Graft Device
MERCK & CO: Judge Tosses Bellwether Case in Fosamax Litigation
MIDLAND CREDIT: Accused of Violating Fair Debt Collection Act
NAT'L COLLEGIATE: "Jenkins" Suit Joined in Grant-In-Aid Cap MDL
NAT'L COLLEGIATE: "Lauricella" Suit Joined in Grant-In-Aid Cap MDL
NAT'L COLLEGIATE: Defends System Against Antitrust Litigation
NAT'L COLLEGIATE: President to Testify in O'Bannon Trial
NAT'L COLLEGIATE: Electronic Arts EVP Testifies in Likeness Suit
NATROL INC: "Nowicki" Suit Moved to Glucosamine/Chondroitin MDL
NOTRE DAME DES NEIGES: Settles Cemetery Class Action for $1.2MM
PETSMART INC: Wins Prelim. Approval of Labor Suit Settlement
PETSMART INC: Discovery Ongoing in "McKee" FLSA Violations Suit
PETSMART INC: Jerky Treats Suit v. Nestle Purina in Mediation
PETSMART INC: Certification Sought in "Pace" Suit by Ex-Employee
PROGRESSIVE NORTHERN: Faces "DeCastro" Insurance Suit in Nevada
QBE FIRST: Faces "Bloom" Suit in Southern District of Florida
QUALITY SYSTEMS: Faces Securities Lawsuit in California Court
SANDERSON FARMS: 11th Cir. Affirms Dismissal of Labor Suit
SYMANTEC CORP: Judge Dismisses Class Action Over Norton Antivirus
TEXAS: LULAC Files Class Action Over Deficient Language Programs
TOYOTA MOTOR: Faces "Emerson" Suit Over Defective Rear Doors
UNITED STATES: Individual Indian Landowners File Class Action
VIBRAM: September Deadline Set for FiveFingers Claims
XANDOYNE PHARMACEUTICALS: Challenges Class Action Fairness Act
*********
ABBVIE INC: Faces ANDROGEL(R) Products Suit in E.D. La.
-------------------------------------------------------
Wayne Morgan v. Abbvie, Inc. and Abbott Laboratories, Inc., Case
No. 2:14-cv-01432 (E.D. La., June 19, 2014), is an action for
damages suffered by the Plaintiff allegedly caused by testosterone
therapy ANDROGEL(R).
The Defendants design, manufacture, and market prescription drugs,
including the testosterone therapy ANDROGEL(R). ANDROGEL(R) is a
form of testosterone replacement therapy, indicated for the
treatment and prevention of low testosterone levels caused by
hypogonadism. Hypogonadism is a specific condition of the sex
glands which, in men, may result in the diminished production or
nonproduction of testosterone.
The Plaintiff alleges that the Defendants fraudulently concealed
and intentionally omitted certain material information from the
Plaintiff, prescribing physicians, healthcare providers, the U.S.
Food and Drug Administration, consumers, and the general public
that, among other things, ANDROGEL(R) is unsafe and dangerous to
users and that the risk of adverse events with ANDROGEL(R) was
higher than represented.
Abbvie Inc., is an Illinois corporation headquartered in North
Chicago, Illinois. Abbott Laboratories, Inc. is an Illinois
corporation headquartered in Abbott Park, Illinois.
The Plaintiff is represented by:
Allan Berger, Esq.
Andrew J. Geiger, Esq.
ALLAN BERGER & ASSOCIATES PLC
4173 Canal Street
New Orleans, LA 70119
Telephone: (504) 486-9481
Facsimile: (504) 483-8130
E-mail: aberger@allan-berger.com
ageiger@allan-berger.com
ABBVIE INC: Faces AndroGel Suit in Cook County Court in Ill.
------------------------------------------------------------
Annie Cosby, writing for The Cook County Record, reports that the
manufacturer of a testosterone gel is facing another suit in
Chicago over claims its product is unsafe.
Richard A. Martin filed a lawsuit June 3 in the Cook County
Circuit Court against Abbvie Inc., citing product liability.
According to the suit, Mr. Martin, of Iowa, suffered a stroke on
Jan. 11 after being prescribed and taking AndroGel, a prescription
drug the defendant manufactures and distributes with the purpose
of providing men a boost of testosterone.
Mr. Martin accuses AbbVie of failing to warn the public of the
health hazards associated with the drug, as well as negligence,
breach of implied warranty, breach of express warranty and
negligent misrepresentation.
Mr. Martin is seeking more than $50,000 in damages. He is being
represented in the case by attorneys Gary D. McCallister of Gary
D. McCallister & Associates LLC and George M. Fleming and Rand P.
Nolen of Fleming, Nolen & Jez LLP.
This marks at least the second suit filed in the Cook County
Circuit Court since April over AndroGel. A Pennsylvania woman
filed suit April 18 against AbbVie and others, claiming her
husband died after using the drug.
Cook County Circuit Court Case No. 2014L005860.
ANNIE'S INC: Glancy Binkow Files Investor Class Action in Calif.
----------------------------------------------------------------
Glancy Binkow & Goldberg LLP, representing investors of Annie's,
Inc., has filed a class action lawsuit in the United States
District Court for the Northern District of California on behalf
of a class comprising all purchasers of Annie's, Inc. securities
between August 8, 2013 and June 3, 2014, inclusive.
Please contact Glancy Binkow & Goldberg LLP, toll-free at (888)
773-9224 or at (212) 682-5340, or by email to
shareholders@glancylaw.com to discuss this matter.
Annie's, Inc. produces, markets and distributes natural and
organic food products, including meals, snacks, dressings,
condiments and other products. The Complaint alleges that
defendants misrepresented and/or failed to disclose material
adverse facts about the Company's operations and financial
performance, including that:
-- The Company's historical methodology for estimating certain
trade allowances did not include all related trade promotion
costs.
-- The Company's controls over accounting for contract
manufacturing did not sufficiently evaluate the valuation
and accuracy of all contract manufacturing receivables and
payables.
-- The Company had a material weakness in its ability to detect
misstatements as a result of its insufficient controls.
-- As a result of its inadequate internal and financial
controls, the Company's financial statements were materially
false and misleading at all relevant times.
On June 2, 2014, Annie's, Inc. disclosed that the Company had
identified a material weakness in its internal control over
financial reporting that was not effective as of March 31, 2014.
According to the Company, the material weakness related to "an
insufficient complement of finance and accounting resources . . .
resulting in design deficiencies in certain areas in which our
controls were not precise enough to detect misstatements that in
the aggregate could be material to the consolidated financial
statements." Then, on June 3, 2014, after the market close,
Annie's announced that its independent registered public
accounting firm, PricewaterhouseCoopers LLP, was resigning
effective the earlier of August 11, 2014, or the completion of the
Company's filing with the SEC of the Form 10-Q for the period
ending June 30, 2014.
If you are a member of the Class described above, you may move the
Court no later than 60 days from the date of this Notice to serve
as lead plaintiff, if you meet certain legal requirements. To be
a member of the Class you need not take any action at this time;
you may retain counsel of your choice or take no action and remain
an absent member of the Class. If you wish to learn more about
this action, or have any questions concerning this announcement or
your rights or interests with respect to these matters, please
contact Michael Goldberg, Esquire, of Glancy Binkow & Goldberg
LLP, 1925 Century Park East, Suite 2100, Los Angeles, California
90067, Toll Free at (888) 773-9224, or contact Gregory Linkh,
Esquire, of Glancy Binkow & Goldberg LLP at 122 E. 42nd Street,
Suite 2920, New York, New York 10168, at (212) 682-5340, by e-mail
to shareholders@glancylaw.com or visit our website at
http://www.glancylaw.com
If you inquire by email please include your mailing address,
telephone number and number of shares purchased.
ARTDALE INC: Violates Fair Labor Standards Act, Class Claims
------------------------------------------------------------
Raeisha Wilson, Louis Shalo and Gregory Jackson, Individually and
on Behalf of All Other Similarly Situated v. Artdale Inc., David
Fernandez and Daniel Fernandez, Case No. 3:14-cv-00201 (S.D. Tex.,
June 19, 2014), alleges violations of the Fair Labor Standards
Act.
The Plaintiffs are represented by:
Martin A. Shellist, Esq.
SHELLIST LAZARZ SLOBIN LLP
11 Greenway Plaza, Suite 1515
Houston, TX 77046
Telephone: (713) 621-2277
Facsimile: (713) 621-0993
E-mail: mshellist@eeoc.net
BAE SYSTEMS: Judge Tosses Bid to Pare Down Sex Bias Class Action
----------------------------------------------------------------
Alex Lawson, writing for Law360, reports that a Virginia federal
judge on June 10 shot down a BAE Systems subsidiary's bid to pare
down a proposed class action alleging rampant discrimination
against female employees, ruling that the complaint withstood the
higher bar for class allegations laid out by the U.S. Supreme
Court three years ago.
U.S. District Judge Arenda L. Wright Allen discarded BAE Systems
Norfolk Ship Repair's arguments that the class discrimination
claims of Janet Aviles and eight other woman were barred by the
high court's 2011 watershed decision in the Wal-Mart v. Dukes
case.
Specifically, Judge Allen said Ms. Aviles and the other women have
alleged that BAE's senior management publicly demonstrated
discriminatory behavior, amounting to far more specific charges
than those in Dukes, which relied on what the court deemed an
inconclusive study and anecdotal data points on employment
decisions.
"Such allegations, coupled with the fact that the managers in this
case . . . are concentrated in one location, make it plausible
that defendants have encouraged a company-wide attitude of
discrimination that has 'manifested itself in hiring and promotion
practices in the same general fashion' with respect to all
prospective class members," the judge wrote.
The women filed suit against the BAE shipping unit last year,
claiming their supervisors were "indifferent" to complaints that
they were repeatedly passed over for promotions, were denied
access to overtime and endured inappropriate sexual comments and
behavior from their male counterparts. The complaint also accused
BAE of fostering a hostile work environment, sexual discrimination
and gender-based harassment.
BAE soon filed parallel motions to partially dismiss the suit on
procedural grounds and also strike the class allegations, both of
which were felled by Judge Allen's order on June 10.
Along with its failure to dismiss the claims under Dukes, BAE was
also unable to rule that the proposed class claims of
discriminatory hiring were time-barred. Judge Allen found that
even if the hiring claims could not hold up on their own, they
eventually could be used to support other components of the case,
such as their claims of discriminatory pay.
"Specifically, it is possible that defendants will respond to
named plaintiffs' discriminatory pay claims by arguing that
plaintiffs' pay is based on gender-neutral pay scales,"
Judge Allen said. "Named plaintiffs' discriminatory hiring
allegations help to rebut this argument by asserting that women
are placed at lower ranks on these scales than equally qualified
men, resulting in women receiving lower pay despite the facial
neutrality of the pay system."
The plaintiffs are represented by Patricia Ann Melochick --
pmelochick@pwhd.com -- Jason Eric Messersmith --
jmessersmith@pwhd.com -- and James Harrell Shoemaker Jr. --
jshoemaker@pwhd.com -- of Patten Wornom Hatten & Diamonstein LC,
Joshua Friedman and Giselle Schuetz of the Law Offices of Joshua
Friedman PC and Jennifer Abby Reisch, Joelle Elise Emerson,
Keasara Maree Williams and Monali Sheth of Equal Rights Advocates.
BAE is represented by Carson Hobbs Sullivan --
carsonsullivan@paulhastings.com -- Barbara Berish Brown --
barbarabrown@paulhastings.com -- and William Cory Barker --
corybarker@paulhastings.com -- of
Paul Hastings LLP.
The case is Aviles et al. v. BAE Systems Norfolk Ship Repair Inc.,
case number 2:13-cv-00418, in U.S. District Court for the Eastern
District of Virginia.
BANK OF NEW YORK: Investors Sue Over Mortgage Securities Losses
---------------------------------------------------------------
Karen Freifeld, writing for Reuters, reports that institutional
investors including BlackRock Inc. and Allianz SE's Pimco on
June 18 sued six of the largest bond trustees, accusing them of
failing to properly oversee more than $2 trillion in mortgage-
backed securities issued in the run-up to the 2008 financial
crisis.
The lawsuits, filed in New York state court, claim the trustees
breached their duties to investors by failing to force lenders and
sponsors of the securities to repurchase defective loans, the
suits claim. The investors are seeking damages for losses that
exceed $250 billion and relate to over 2,200 residential mortgage-
backed securities trusts issued between 2004 and 2008, according
to a person familiar with the cases.
The trustees that were sued include units of U.S. Bank, Citibank,
Deutsche Bank, Wells Fargo & Co., HSBC, and Bank of New York
Mellon. Representatives for the banks declined comment or did not
immediately respond to requests for comment.
The lawsuits come after a New York appeals court ruling in
December that determined the six-year statute of limitations to
bring breach-of-contract cases against the issuers of mortgage
securities began when the transactions were executed. The ruling
means that for many cases it is too late to sue.
The lawsuits claim the trustees disregarded their duties to
protect investors despite knowing that the trusts held a large
number of loans that did not meet their contractual obligations.
The trustees were aware of an "industrywide abandonment of
underwriting guidelines" for the loans and "pervasive and systemic
deficiencies infecting the trusts' collateral," as the complaint
against Citibank says.
Banks have paid billions of dollars in lawsuits and settlements
since being accused of packaging shoddy mortgages into securities
that helped lead to the financial crisis.
The bonds at issue have not been included in similar cases
including an $8.5 billion accord between investors and Bank of
America Corp. and a $4.5 billion deal between investors and
JPMorgan Chase & Co. over mortgage-backed securities, the person
familiar with the lawsuits said.
In addition to BlackRock and Pimco, the lawsuits were filed on
behalf of Charles Schwab Co, DZ Bank AG and other institutional
investors.
The cases were filed on behalf of the investors by Bernstein
Litowitz Berger & Grossmann.
The cases are BlackRock Allocation Target Shares, et al v Bank of
New York Mellon, Blackrock Balanced Capital Portfolio, et al, v
Deutsche Bank National Trust Company, BlackRock Allocation Target
Shares v. U.S. Bank National Association; BlackRock Balanced
Capital Portfolio, et al v Citibank N.A.; BlackRock Core Active
Libor Fund B v HSBC Bank USA; and BlackRock Allocation Target
Shares et al, v Wells Fargo Bank, New York State Supreme Court,
New York County.
BIO-ENGINEERED SUPPLEMENTS: Moved "Conde" Suit to C.D. California
-----------------------------------------------------------------
The class action lawsuit styled Martin Conde v. Bio-Engineered
Supplements and Nutrition Inc., et al., Case No. 30-2014-00718438,
was removed from the Orange County Superior Court to the U.S.
District Court for the Central District of California (Santa Ana).
The District Court Clerk assigned Case No. 8:14-cv-00945-DOC-DFM
to the proceeding.
Mr. Conde notes that the Company manufactures, markets and sells
its Nitrix product as an "Advance Strength" "Dietary Supplement"
and advertises that the product contains the chemical compound
Arginine Ethyl Esther. He alleges that based upon a recent
laboratory analysis, the Nitrix product contains no detectable
amount of Arginine Ethyl Esther and, therefore, the Company has
misrepresented what ingredients are actually present in Nitrix.
The Plaintiff is represented by:
Richard H. Hikida, Esq.
Scott J. Ferrell, Esq.
Victoria C. Knowles, Esq.
NEWPORT TRIAL GROUP APC
4100 Newport Place Drive, Suite 800
Newport Beach, CA 92660
Telephone: (949) 706-6464
Facsimile: (949) 706-6469
E-mail: rhikida@trialnewport.com
sferrell@trialnewport.com
vknowles@trialnewport.com
The Defendants are represented by:
Kathy J. Huang, Esq.
Robert D. Phillips, Jr., Esq.
REED SMITH LLP
355 South Grand Avenue, Suite 2900
Los Angeles, CA 90071-1514
Telephone: (213) 457-8000
Facsimile: (213) 457-8080
E-mail: khuang@reedsmith.com
rphillips@reedsmith.com
- and -
Thomas A. Evans, Esq.
REED SMITH LLP
101 Second Street, Suite 1800
San Francisco, CA 94105
Telephone: (415) 543-8700
Facsimile: (415) 391-8269
E-mail: tevans@reedsmith.com
BIOZOOM INC: Peiffer Rosca Law Firm Files Investor Class Action
---------------------------------------------------------------
The Peiffer Rosca law firm on June 11 disclosed that it has filed
a class action on behalf of certain investors who have purchased
the common stock of Biozoom, Inc. between May 16, 2013 and June
25, 2013, inclusive.
The Peiffer Rosca lawyers have been investigating the Biozoom
alleged "pump-and-dump" scheme on behalf of BIZM investors and are
preparing to join additional defendants to the class action they
filed. The Peiffer Rosca law firm has launched a website with
information about the Biozoom class action it filed:
www.biozoomclassaction.com
Biozoom investors who have purchased their Biozoom shares from the
named defendant between May 16, 2013 and June 24, 2013 may seek
appointment as lead plaintiff by the Court, by no later than
July 21, 2014.
Investors' share of any recovery in the Biozoom class action filed
by the Peiffer Rosca law firm will not be affected by their
decision regarding seeking appointment as lead plaintiff.
Investors may retain the Peiffer Rosca law firm, which has filed
this class action, or other counsel of their choice.
To learn more about the class action filed by the Peiffer Rosca
law firm on behalf of certain Biozoom investors, please email
Alan Rosca at arosca@praclawfirm.com or call the Peiffer Rosca law
firm toll-free at 888-998-0520.
Biozoom Lawsuit Filed by the Peiffer Rosca Law Firm: Case
Information
The Biozoom class action filed by the Peiffer Rosca law firm on
behalf of certain Biozoom investors seeks to hold the defendant
liable for alleged violations of certain provisions of the
Securities Act of 1933, in connection with the sales of BIZM
shares to investors. The Biozoom shares were the object of an
alleged pump-and-dump scheme between May-June 2013.
About Peiffer Rosca Law Firm
The Peiffer, Rosca, Abdullah, Carr & Kane, LLC law firm, with
offices in New Orleans, Cleveland, and New York state, represents
investors who lose their savings as a result of investment-related
fraud or misconduct. The firm has represented investors across
the country who lost money in fraudulent investment schemes, Ponzi
schemes, or because of misconduct by financial industry members.
BRIDGETON LANDFILL: Opt-In Deadline Extended to July 18
-------------------------------------------------------
Joe Harris, writing for Courthouse News Service, reports that a
federal judge extended the opt-in deadline for neighbors of a
landfill who were exposed to noxious odors to join a class action
settlement, and clarified that joining the agreement does not wave
rights to sue if contamination continues.
More than 600 neighbors of the Bridgeton Landfill, a subsidiary of
Republic Services, filed a class action in October 2013. An
underground fire at the defunct landfill was reported more than
three years ago. The fire brought noxious odors to neighboring
homes and businesses, with concerns about the fire's proximity to
radioactive waste at the adjacent West Lake Landfill, also owned
by Republic Services.
Bridgeton is a suburb of St. Louis.
In April, Republic entered into a $6.8 million settlement to
compensate the neighbors for lost property value due to the odors.
U.S. District Judge Thomas C. Mummert III granted motions amending
the settlement on June 13. Mummert's ruling reserves the right
for residents to sue Republic later for any radiation exposure.
Residents are concerned that the underground fire could spread to
the West Lake Landfill, which has radioactive waste. Elevated
levels of benzene were detected along West Lake's perimeter on
June 1, drawing the ire of the Missouri attorney general.
Mummert also extended the deadline to opt in to July 18.
"The judge's order provides a welcomed clarification for our
clients and allows them more time to make a decision," said Ted
Gianaris, a lawyer for The Simmons Law Firm, who represents the
residents, in a statement. "All class members, even those who may
have previously opted out or objected to the lawsuit, may still
participate in the settlement."
Both sides consented to the amendments.
"The addendum gives class members the assurance they deserve,"
Gianaris said in the statement. "If folks are sick or lose value
due to radiation contamination, their legal rights will still be
intact."
Bridgeton, pop. 11,630, is next to Lambert International Airport
in northwest St. Louis County.
BUSINESS DELIVERY: "Fletcher" Class Suit Removed to N.D. Texas
--------------------------------------------------------------
Defendant GE Healthcare, Inc., removed the class action lawsuit
captioned Fletcher v. Business Delivery Systems Inc., et al., Case
No. DC-14-05251, from the 44th-B Judicial District Court, Dallas
County, Texas, to the U.S. District Court for the Northern
District of Texas in Dallas. The District Court Clerk assigned
Case No. 3:14-cv-02229-P to the proceeding.
In his Petition, Milton Fletcher pleads various causes of action,
including one for an alleged violation of federal law under the
Fair Labor Standards Act of 1938.
In its notice of removal, GE stated that it was improperly named
in the Plaintiff's Petition and Jury Demand as "GE Healthcare,
Inc." GE contends that there is no known entity; the proper
entity should be named as "Medi-Physics, Inc. dba GE Healthcare,
Inc."
The Plaintiff is represented by:
Joshua Charles Borsellino, Esq.
BORSELLINO, P.C.
1020 Macon St., Suite 15
Fort Worth, TX 76102
Telephone: (817) 908-9861
Facsimile: (817) 394-2412
E-mail: josh@dfwcounsel.com
Defendant Business Delivery Systems Inc. is represented by:
Janice S. Parker, Esq.
Angella H. Myers, Esq.
THE MYERS LAW GROUP LLP
8144 Walnut Hill Lane, Suite 390
Dallas, TX 75231
Telephone: (972) 781-2400
Facsimile: (972) 781-2401
E-mail: jparker@myerslawllp.com
amyers@myerslawllp.com
Defendant GE Healthcare Inc. is represented by:
Kimberly Rives Miers, Esq.
Allan G. King, Esq.
Russell R. Zimmerer, Esq.
LITTLER MENDELSON PC
2001 Ross Ave., Suite 1500 LB 116
Dallas, TX 75201-2931
Telephone: (214) 880-8115
Facsimile: (214) 880-0181
E-mail: kmiers@littler.com
agking@littler.com
rzimmerer@littler.com
CAPITAL ONE: Removed "Van Dyke" Class Suit to M.D. Florida
----------------------------------------------------------
The class action lawsuit titled Van Dyke, et al. v. Capital One
Services LLC, Case No. 14-CA-004854, was removed from the 13th
Judicial Circuit in and for Hillsborough County, Florida, to the
U.S. District Court for the Middle District of Florida (Tampa).
The District Court Clerk assigned Case No. 8:14-cv-01466-SCB-MAP
to the proceeding.
The lawsuit is brought pursuant to the Fair Labor Standards Act
relating to the Company's alleged denial of overtime compensation.
The Plaintiffs are represented by:
Angela E. Outten, Esq.
REESER, RODNITE, OUTTEN & ZDRAVKO, LLC
3411 Palm Harbor Blvd., Suite A
Palm Harbor, FL 34683
Telephone: (727) 787-5919
Facsimile: (727) 787-6685
E-mail: aoutten@rrozlaw.com
The Defendant is represented by:
Jay P. Lechner, Esq.
JACKSON LEWIS, PC
100 S Ashley Dr., Suite 2200
Tampa, FL 33607
Telephone: (813) 513-3218
Facsimile: (813) 512-3211
E-mail: jay.lechner@jacksonlewis.com
CB RESTAURANTS: Accused of Violating Fair Labor Standards Act
-------------------------------------------------------------
Alexis Alex, Individually and On Behalf of All Others Similarly
Situated v. C.B. Restaurants, Inc. d/b/a Sugar's and Glenn L.
Williams, Case No. 5:14-cv-00550-DAE (W.D. Tex., June 18, 2014),
alleges violations of the Fair Labor Standards Act.
The Plaintiff is represented by:
Ricardo Jose Prieto, Esq.
Robert R. Debes, Jr., Esq.
SHELLIST LAZARZ SLOBIN LLP
11 Greenway Plaza, Suite 1515
Houston, TX 77046
Telephone: (713) 621-2277
Facsimile: (713) 621-0993
E-mail: rprieto@eeoc.net
bdebes@eeoc.net
CEDAR FAIR: Still Faces Suit Over Park Employee Check-Out Process
-----------------------------------------------------------------
Cedar Fair, L.P. continues to face a class action lawsuit filed by
Frank Ortegon-Ramirez in California state court, claiming damages
and injunctive relief for claims related to pay practices
applicable to the check-out process for park employees when
leaving work in certain California locations, according to the
company's May 29, 2014, Form 8-K filing with the U.S. Securities
and Exchange Commission.
On May 29, 2014, Cedar Fair, L.P. ("Cedar Fair") issued a news
release announcing that it, together with its wholly owned
subsidiaries Magnum Management Corporation ("Magnum") and Canada's
Wonderland Company ("Cedar Canada"), intends to commence a private
offering of $450 million aggregate principal amount of senior
unsecured notes due 2024 (the "Notes") for issuance in a private
placement, not registered under the Securities Act of 1933, as
amended. Additionally, Cedar Fair disclosed a class action lawsuit
filed by Frank Ortegon-Ramirez in California state court against
Cedar Fair, L.P. and Cedar Fair Management, Inc. for damages and
injunctive relief for claims related to pay practices applicable
to the check-out process for park employees when leaving work in
certain California locations. The defendants filed their answer on
November 21, 2013 denying the allegations in the complaint and
requesting a dismissal of all claims. The class has not been
certified and Cedar Fair and Cedar Fair Management, Inc. believe
they have substantial procedural and substantive defenses to the
asserted claims and class certification, and they intend to
vigorously defend against these claims.
CENTURION AIR: Removed "Marin" Suit to S.D. Florida
---------------------------------------------------
The purported class action lawsuit entitled Jhonyer F. Marin, on
behalf of himself and all those similarly situated v. Centurion
Air Cargo, Inc., Case No. 2014-13783-CA-01, was removed from the
Eleventh Judicial Circuit, Miami-Dade County, Florida, to the
United States District Court for the Southern District of Florida.
The District Court Clerk assigned Case No. 1:14-cv-22284-MGC to
the proceeding.
In his complaint, Mr. Marin accuses the Defendant of unlawfully
failing to pay overtime compensation as required by the Fair Labor
Standards Act.
The Plaintiff is represented by:
Roderick V. Hannah, Esq.
RODERICK V. HANNAH, P.A.
4018 Sheridan Street
Hollywood, FL 33021
Telephone: (954) 362-3800
Facsimile: (954) 362-3779
E-mail: rhannah@rhannahlaw.com
- and -
Pelayo M. Duran, Esq.
LAW OFFICE OF PELAYO M. DURAN, P.A.
4640 NW 7th Street
Miami, FL 33126
Telephone: (305) 266-9780
Facsimile: (305) 269-8311
E-mail: Assistant@pelayoduran.com
The Defendant is represented by:
Steven A. Siegel, Esq.
FISHER & PHILLIPS LLP
450 East Las Olas Boulevard, Suite 800
Fort Lauderdale, FL 33301
Telephone: (954) 525-4800
Facsimile: (954) 525-8739
E-mail: ssiegel@laborlawyers.com
CITIBANK NA: Judge Rejects Arbitration Bid in Miles Reward Suit
---------------------------------------------------------------
Bertram Hirsch and Igor Romonav sued Citibank, N.A., in a
nationwide class action in the United States District Court,
Southern District of New York, charging that the bank wrongfully
reported to the IRS that customers had received income as a result
of accepting American Airlines miles reward offers for opening up
certain Citibank accounts. United States Federal Judge Deborah A.
Batts is presiding over the case. The plaintiffs allege that
Citibank failed to disclose that it would report receipt of
airline miles to the IRS. In addition, they allege that Citibank
failed to disclose they would report the value of the airline
miles received at 150% more than the actual value of the airline
miles.
Citibank moved to stay the class action and compel arbitration,
claiming that plaintiffs entered into a contract with Citibank,
when they opened up their accounts, which contained a provision
requiring all disputes to go to mandatory binding arbitration if
any party so elected, and contained clauses which voided
customers' rights to a jury trial and to participate in a class
action.
On March 28, 2013, Judge Batts denied Citibank's motion to compel,
finding that there was no evidence before her to show that there
was a meeting of the minds. Citibank appealed Judge Batts'
decision to the Second Circuit Court of Appeals, where the Second
Circuit Court requested, among other things, that Judge Batts
oversee a trial to determine if the parties entered into a binding
arbitration agreement.
After reviewing extensive discovery, including witness testimony
before Judge Batts, depositions in New York and Los Angeles,
California, and document discovery, Judge Batts found that the
plaintiffs did not agree to arbitration.
The case is being prosecuted by James C. Kelly, from The Law
Office of James C. Kelly, and Samuel P. Sporn, from Schoengold &
Sporn, P.C.
The class action against Citibank is now entering discovery
concerning the merits of plaintiffs' allegation, which Judge Batts
ordered to be completed by October 31, 2014. Plaintiffs'
attorneys will announce updates as the lawsuit continues.
If you have any information or questions you can contact James C.
Kelly or Samuel Sporn at jkelly@jckellylaw.com or
sporn@spornlaw.com
COLORADO OIL: Lafayette Citizens' Class Action Seeks Fracking Ban
-----------------------------------------------------------------
Cliff Willmeng, writing for Pagosa Daily Post, reports that
Lafayette, Colorado, citizens have filed a class action lawsuit
against the Colorado Oil and Gas Association, the State of
Colorado, and Colorado Governor Hickenlooper, requesting immediate
enforcement of the Lafayette Community Rights Charter Amendment to
ban fracking.
In November of 2013, a 60% majority of Lafayette voters asserted
their right to local, community self-government by enacting the
Community Rights Amendment. The Community Rights Amendment
protects Lafayette residents' health, safety and welfare by
enumerating certain fundamental rights and prohibiting harmful
activities, such as fracking. It is the position of the Lafayette
citizens that the oil and gas industry, aided by Governor
Hickenlooper and the State of Colorado, interferes with the
fundamental rights described in, and protected by, the Charter
Amendment, and guaranteed by the Colorado and United States
Constitutions.
Following the passage of the Lafayette Community Rights Amendment,
the Colorado Oil and Gas Association (COGA), sued the City of
Lafayette, claiming that a State law -- the Colorado Oil and Gas
Act -- trumps the people's right to self-determination and to
protect themselves from oil and gas activities impacting their
local community. East Boulder County United, the local
organization that wrote and successfully campaigned for the
Lafayette Community Rights Charter Amendment, attempted to join
COGA's lawsuit. But, the court refused to allow East Boulder
County United to participate because, it said, the group's
arguments about people's fundamental rights would expand the scope
of the case.
Long-time Lafayette resident, East Boulder County United member,
and named plaintiff Ann Griffin stated, "I stand with the people
of Lafayette who voiced their support for this charter amendment
by an overwhelming majority. What is democracy without this
voice? Our rights are inalienable, and not up for negotiation by
any Governor, Congressman or corporation."
Ms. Griffin worked on the campaign for the Charter Amendment's
enactment, and currently enjoys its provisions, detailing her
right to clean air and water, to self-determination, and to be
free from chemical trespass. In a city that neighbors the
thousands of oil and gas wells in Weld County, the Community
Rights Charter Amendment stands between a massive
industrialization of her community and the preservation of quality
of life and public safety.
This suit enforces Lafayette residents' fundamental rights, which
are being directly threatened by the Colorado Oil and Gas
Association, said the other named plaintiff Cliff Willmeng, who is
also a Registered Nurse, Lafayette resident, and father of two.
The new class action lawsuit comes on the heels of the Colorado
Supreme Court's decision to give the green light to ballot
initiative No. 75, the Colorado Community Rights Amendment, for
signature gathering.
According to initiative proponents, which include Colorado
Community Rights Network and East Boulder County United, ballot
initiative No. 75 will clarify that Colorado communities have the
right to local self-government and the authority to protect
people's fundamental rights from corporate interference.
Proponents are working to gather over 86,000 signatures to ensure
the initiative's placement on the November ballot.
CSX TRANSPORTATION: Files Motion to Dismiss Class Action
--------------------------------------------------------
WCIV reports that CSX Transportation has filed a motion to have
dismissed a class action lawsuit stemming from the Cypress Gardens
Road bridge collapse.
According to the filing, the rail company says the plaintiffs do
not have personal or property injuries, just a "temporary
inconvenience due to the temporary bridge outage."
The motion argues the plaintiffs have not shown enough evidence to
support their claim.
But CSX says it has already accepted fault and made plans to pay
for the full cost of repairing the bridge.
A month ago, a train derailment knocked out the small bridge that
Department of Transportation records show is traveled by 6,200
cars every year. The outage resulted in a 22-mile detour around
the area, which in turn caused traffic back-ups in other areas in
the county. In some instances, people reported their travel time
to and from work more than doubled.
The Department of Transportation recently announced it had awarded
a $3 million contract to a Wando-based contractor to rebuild the
bridge by the end of October.
DAIRY FARMERS: Judge Allows Antitrust Class Action to Proceed
-------------------------------------------------------------
David McAfee, Bill Donahue and Megan Leonhardt, writing for
Law360, report that a Vermont federal judge on June 11 ruled that
Dairy Farmers of America Inc. and Dairy Marketing Services LLC
could not escape a consolidated antitrust class action brought by
dairy farmers over an alleged pricing conspiracy in the Northeast,
instead trimming some of the plaintiffs' claims.
U.S. District Judge Christina Reiss granted in part and denied in
part the defendants' motion for summary judgment in the suit,
which was brought by dairy farmers over DFA and DMS' alleged
conspiracy with major food companies to drive down prices in the
Northeast. The judge rejected defendants' argument that
plaintiffs cannot establish a relevant geographic market, which
would have meant an end to plaintiffs' antitrust claims.
There is sufficient admissible evidence to support Federal Milk
Market Order 1 -- covering areas in Connecticut, Delaware, the
District of Columbia, Maryland, Massachusetts, New Hampshire,
New Jersey, New York, Pennsylvania, Rhode Island, Vermont and
Virginia -- as the relevant geographic market, the judge held.
"Plaintiffs may present evidence to the jury in support of Order I
as a relevant geographic market," Judge Reiss wrote in the 45-page
decision. "They may not, however, present to the jury a market
definition of Order 1 that requires a dairy farmer to be
physically located within Order 1's geographic boundaries in order
to be considered a supplier of milk to that market."
The judge further refused to toss the plaintiffs' claims that the
defendants violated the Sherman Act by engaging in an attempted
monopsony of raw Grade A milk in Order 1 and that they already
possess the monopsony power, but Judge Reiss dismissed the
plaintiffs' price-fixing claim in Count 4 of the complaint. In a
monopsony, many sellers face a dominant buyer who can manipulate
prices by asserting its outsized control on demand.
The June 11 ruling in the most recent development in the long-
running case, in which the judge said isolating the undisputed
facts is "no easy task." In November 2012, Judge Reiss granted
the farmers class certification in the suit.
That order certified two subclasses of Northeast farmers who
produced raw Grade A milk from Jan. 1, 2002, to the present. One
group is made up of members of DFA, while the other is made up of
producers outside the cooperative.
The dairy farmers first filed their case in October 2009, claiming
DFA, Dean Foods Co. and DFA affiliate DMS conspired with
nondefendant companies like Kraft Foods Inc. and Land O'Lakes Inc.
to stifle competition in the supply and purchase of raw Grade A
milk in the Northeast.
The defendants' conspiratorial conduct created a monopsony in the
purchase of milk from farmers in the region, and the restraints on
competition translated to windfalls for the defendants and
co-conspirators that came at the expense of farmers, according to
the suit.
Dean Foods reached its own $30 million settlement to exit the case
in May 2011.
The non-DFA/DMS subclass is represented by Robert G. Abrams --
rabrams@bakerlaw.com -- Robert J. Brookhiser --
rbrookhiser@bakerlaw.com -- Gregory J. Commins Jr. --
gcommins@bakerlaw.com -- Terry L. Sullivan --
tsullivan@bakerlaw.com -- and Danyll W. Foix -- dfoix@bakerlaw.com
-- of Baker & Hostetler LLP; and Emily J. Joselson --
ejoselson@langrock.com -- and Lisa B. Shelkrot --
lshelkrot@langrock.com -- of Langrock Sperry & Wool LLP.
The DFA/DMS subclass is represented by Kit Pierson, Benjamin D.
Brown, Brent W. Johnson and Emmy L. Levens of Cohen Milstein
Sellers & Toll PLLC; David A. Balto of The Law Offices of David A.
Balto; and Andrew D. Manitsky -- amanitsky@gravelshea.com -- of
Gravel & Shea PC.
The defendants are represented by Ian P. Carleton and R. Jeffrey
Behm -- jbehm@sheeheyvt.com -- of Sheehey Furlong & Behm PC;
Steven R. Kuney -- skuney@wc.com -- Kevin Hardy -- khardy@wc.com
-- and Carl R. Metz -- cmetz@wc.com -- of Williams & Connolly LLP;
and W. Todd Miller -- tmiller@bakerandmiller.com -- of Baker &
Miller PLLC.
The case is Allen et al. v. Dairy Farmers of America Inc. et al.,
case number 5:09-cv-00230, in the U.S. District Court for the
District of Vermont.
DELTA HEALTH: Accused of Violating Fair Credit Reporting Act
------------------------------------------------------------
Stephanie LaFollette, on behalf of herself and all others
similarly situated v. Delta Health Care Management Corporation
d/b/a Delta Homecare, Case No. 3:14-cv-00103-TCB-RGV (N.D. Ga.,
June 18, 2014), alleges violations of the Fair Credit Reporting
Act.
The Plaintiff is represented by:
Andrew Weiner, Esq.
Jeffrey Sand, Esq.
THE WEINER LAW FIRM, LLC
3525 Piedmont Road
7 Piedmont Center, 3rd Floor
Atlanta, GA 30305
Telephone: (404) 254-0842
Facsimile: (866) 800-1482
E-mail: aw@atlantaemployeelawyer.com
js@atlantaemployeelawyer.com
DOLE PACKAGED: Mislabeled Products as "All Natural," Suit Claims
----------------------------------------------------------------
Christopher Kinney, individually and on behalf of all others
similarly situated v. Dole Packaged Foods, LLC 5:14-cv-05182-TLB
(W.D. Ark., June 18, 2014), is brought on behalf of a class of
Arkansas residents, who purchased any Dole fruit products, labeled
as "All Natural."
Dole represents that its products are "All Natural, which they are
not because the Dole Fruit Products contain citric acid and
ascorbic acid, Mr. Kinney alleges. He contends that using the
terms is illegal to describe products, which contain unnatural
ingredients under Arkansas law.
Dole Packaged Foods, LLC is a California limited liability company
doing business in the state of Arkansas with its principal place
of business in Westlake Village, California. Dole is a leading
producer of retail food products, including the Dole Fruit
Products. The Company sells its food products to consumers
through grocery and other retail stores throughout the State of
Arkansas.
The Plaintiff is represented by:
Kenneth R. Shemin, Esq.
SHEMIN LAW FIRM, PLLC
3333 Pinnacle Hills Parkway, Suite 603
Rogers, AR 72758
Telephone: (479) 845-3305
Facsimile: (479) 845-2198
E-mail: ken@sheminlaw.com
ELECTROLUX: Dec. 15 Settlement Claim Form Submission Deadline Set
-----------------------------------------------------------------
If you purchased or currently own a clothes dryer manufactured by
Electrolux (includes Frigidaire) between January 1, 2002, and
December 31, 2011, you could get benefits from a class action
settlement.
Includes Frigidaire, White Westinghouse, Kelvinator, Gibson,
Tappan, Crosley, and Kenmore Brands
A Settlement has been reached with Electrolux Home Products, Inc.
about whether the company manufactured freestanding clothes dryers
that contain a defect which may cause lint to build up and catch
fire. Electrolux denies all of the claims in the lawsuit and
maintains that its dryers are not defective. The Court has not
decided who is right. Instead, both parties have agreed to settle
the case. This is only a summary of your legal rights. For more
information, visit www.DryerSettlement.com
What is the class action about? The lawsuit claims that the Dryers
contain defects that can cause them to catch on fire
due to a buildup of lint inside them. The lawsuit further claims
that Electrolux breached warranties, was negligent, violated
various state consumer protection statutes and unlawfully profited
from the sale of the Dryers. Electrolux denies that there
is any defect in its Dryers or that the Dryers pose any
unreasonable fire hazard to consumers. Electrolux also denies
that it violated any law or engaged in any wrongdoing.
Who is included in the Settlement? Electrolux's records show that
you may be a member of the Settlement Class. The "Settlement
Class" or "Class Members" include all U.S. residents who, for
personal or household use, purchased or currently own a
Frigidaire, Kenmore, White Westinghouse, Kelvinator, Gibson,
Crosley, or Tappan-brand "ball-hitch" freestanding clothes dryer
manufactured by Electrolux in Webster City, Iowa, between
January 1, 2002 and December 31, 2011 (these types of dryers have
serial numbers beginning with "XD," and can be identified by the
design of the Dryers' drum -- go to www.DryerSettlement.com to see
if you have one of these Dryers). The Settlement also includes
two smaller Settlement Subclasses consisting of Class Members who
(a) have experienced a Dryer fire, or (b) experience a Dryer fire
in the future.
What does the Settlement provide? The Settlement provides a
variety of benefits including free dryer cleaning services
to remove lint build-up in the Dryers that may cause fires, up to
$1,300 in cash reimbursements for past or future dryer
fires, a rebate of up to $350 off the purchase of a new Frigidaire
or Electrolux brand clothes dryer (which do not contain
the alleged defects) or home appliance, and up to $350 off the
purchase of new products from www.ElectroluxAppliances.com
Electrolux will not cap or limit the benefits available under this
Settlement. The Settlement also requires Electrolux to publish a
customer safety notice informing customers and Settlement Class
Members that lint in dryers may build up and increase the risk of
fires. The Settlement does not require you to release any
personal injury or property damage claims, other than damage to
the Dryer itself, you have against Electrolux.
How do you ask for benefits? You must complete and submit a Claim
Form with any required documents by December 15, 2014. You can
complete and submit your Claim Form online at
www.DryerSettlement.com or print one from the website and mail it
to the address on the form. Claim Forms are also available by
calling 1-888-541-4923, sending an email to
Administrator@DryerSettlement.com or writing to the Electrolux
Dryer Settlement Administrator.
Your other options in this Settlement. If you do nothing, your
rights will be affected and you will not get any settlement
benefits beyond receiving Electrolux's customer safety notice. If
you do not want to be legally bound by the Settlement, you must
exclude yourself from it by sending a letter to the Electrolux
Dryer Settlement Administrator by July 28, 2014. Unless you
exclude yourself, you will not be able to sue or continue to sue
Electrolux for any claim resolved by the Settlement or released by
the Settlement Agreement. If you exclude yourself, you cannot get
any benefits from the Settlement. If you stay in the Settlement
(i.e., don't exclude yourself), you may object to it by July 28,
2014 by filing a written objection with the Court, Class Counsel,
and Defense Counsel.
The Court's Fairness Hearing. The U.S. District Court for the
Central District of California, located at 312 North Spring
Street, Los Angeles, California 90012, will hold a hearing in this
case (Roberts v. Electrolux Home Products, Inc., Case
No. SACV12-1644-CAS(VBKx)) on August 18, 2014, at 10:00 a.m. PDT
in Courtroom 5. At the fairness hearing the Court will decide
whether to approve: (1) the Settlement; (2) Class Counsel's
request for an award of attorneys' fees and reimbursement of costs
-- which will include at least $583,000 in costs incurred to-date
and that continue to accrue, and the total amount of fees and
costs requested will not exceed $8,000,000; and (3) incentive
awards of $3,000 to each of the five Class Representatives. If
approved, these fees, expenses and awards will be paid separately
by Electrolux and will not reduce the benefits available to Class
Members. You may appear at the hearing, but you do not have to.
You may also hire your own attorney, at your own expense, to
appear or speak for you at the hearing.
More information. For more information, including specific
information on the proposed Settlement, filing a claim,
excluding yourself, or filing objections, visit
www.DryerSettlement.com send an email to
Administrator@DryerSettlement.com or write to Electrolux Dryer
Settlement Administrator, PO Box 43268, Providence,
RI 02940-3268 or Class Counsel at 55 West Monroe Street,
Suite 3300, Chicago, IL 60603 or call 1-888-541-4923.
Do not contact the Court, Electrolux, or any appliance retailer or
dealer for information about the Settlement.
EVERBANK NA: Faces "Wilson" Suit in Southern District of Florida
----------------------------------------------------------------
Dwight Wilson, Jesus A. Avelar-Lemus, Jessie Cross and Mattie
Cross, on behalf of themselves and all others similarly situated
v. Everbank, N.A., Everhome Mortgage, Assurant, Inc., Standard
Guaranty Insurance Company and American Security Insurance
Company, Case No. 1:14-cv-22264-MGC (S.D. Fla., June 18, 2014),
arises from contract-related disputes.
The Plaintiffs are represented by:
Aaron Samuel Podhurst, Esq.
John Gravante, III, Esq.
Matthew Weinshall, Esq.
Peter Prieto, Esq.
PODHURST ORSECK, P.A.
City National Bank Building
25 W Flagler Street, Suite 800
Miami, FL 33130-1780
Telephone: (305) 358-2800
Facsimile: (305) 358-2382
E-mail: apodhurst@podhurst.com
jgravante@podhurst.com
mweinshall@podhurst.com
pprieto@podhurst.com
- and -
Adam M. Moskowitz, Esq.
Rachel Sullivan, Esq.
Thomas A. Tucker Ronzetti, Esq.
Robert J. Neary, Esq.
KOZYAK TROPIN & THROCKMORTON
2525 Ponce de Leon Boulevard, Suite 900
Coral Gables, FL 33134-6036
Telephone: (305) 372-1800
Facsimile: (305) 372-3508
E-mail: AMM@kttlaw.com
rs@kttlaw.com
TR@kttlaw.com
rn@kttlaw.com
- and -
Howard Mitchell Bushman, Esq.
Lance August Harke, Esq.
Sarah Clasby Engel, Esq.
HARKE CLASBY & BUSHMAN LLP
9699 NE Second Avenue
Miami Shores, FL 33138
Telephone: (305) 536-8220
Facsimile: (305) 536-8229
E-mail: hbushman@harkeclasby.com
lharke@harkeclasby.com
sengel@harkeclasby.com
- and -
John Scarola, Esq.
SEARCY DENNEY SCAROLA BARNHART & SHIPLEY
2139 Palm Beach Lakes Boulevard
PO Drawer 3626
West Palm Beach, FL 33402-3626
Telephone: (561) 686-6300
Facsimile: (561) 383-9451
E-mail: mep@searcylaw.com
FAIRWAY GROUP: Faces FLSA Violations Lawsuit in N.Y. Court
----------------------------------------------------------
Fairway Group Holdings Corp. faces a purported wage and hour class
action lawsuit in the United States District Court for the
Southern District of New York, according to the company's May 29,
2014, Form 10-K filing with the U.S. Securities and Exchange
Commission for the fiscal year ended March 30, 2014.
In May 2014, a purported wage and hour class action lawsuit was
filed in the United States District Court for the Southern
District of New York against the company and certain of the
company's current and former officers and employees. This suit
alleges, among other things, that certain of the company's past
and current employees were not properly compensated in accordance
with the overtime provisions of the Fair Labor Standards Act.
FAIRWAY GROUP: Still Faces Securities Lawsuits in New York Court
----------------------------------------------------------------
Fairway Group Holdings Corp. continues face securities lawsuits in
the United States District Court for the Southern District of New
York, according to the company's May 29, 2014, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended March 31, 2014.
In February and March 2014, three purported class action lawsuits
alleging violation of the federal securities laws were filed in
the United States District Court for the Southern District of New
York against the company and certain of the company's current and
former officers, certain of the company's directors and the
underwriters for the company's initial public offering. The suits
assert claims for allegedly misleading statements in the
registration statement for the company's initial public offering
and in subsequent communications regarding the company's business
and financial results.
In April 2014, a purported stockholder derivative action was filed
against certain of the company's directors in New York state court
asserting claims for breach of fiduciary duties and gross
mismanagement arising from substantially similar allegations as in
the securities class actions.
FOREST LABORATORIES: Has Settlement in Suit Over Actavis Sale
-------------------------------------------------------------
Forest Laboratories, Inc. reached an agreement in principle to
settle two lawsuits in Delaware and New York Action over its sale
transaction with Actavis plc, according to Forest's May 29, 2014,
Form 8-K filing with the U.S. Securities and Exchange Commission
for the quarter ended March 31, 2014.
As disclosed at page 137 of the definitive joint proxy
statement/prospectus dated May 5, 2014 (the "Definitive Joint
Proxy Statement/Prospectus") under the heading "Litigation
Relating to the Transaction," certain actions have been filed by
putative stockholders of Forest Laboratories, Inc. "Forest")
alleging that the members of the Forest board of directors
breached their fiduciary duties by agreeing to sell Forest for
inadequate consideration and pursuant to an inadequate process,
and that Actavis plc ("Actavis"), Tango U.S. Holdings Inc., Tango
Merger Sub 1 LLC, and Tango Merger Sub 2 LLC aided and abetted
these alleged breaches. As disclosed in the Definitive Joint Proxy
Statement/Prospectus, these actions include purported consolidated
stockholder class actions in the Delaware Court of Chancery (the
"Delaware Action") and in the Supreme Court of the State of New
York (the "New York Action," together with the Delaware Action,
the "Actions").
On May 28, 2014, the defendants reached an agreement in principle
with plaintiffs in the Delaware Action and the New York Action
regarding a settlement of both Actions, and that agreement is
reflected in a memorandum of understanding. In connection with the
settlement contemplated by the memorandum of understanding, Forest
agreed to make certain additional disclosures related to the
proposed transaction with Actavis, which are contained in the Form
8-K. The memorandum of understanding contemplates that the parties
will enter into a stipulation of settlement.
The stipulation of settlement will be subject to customary
conditions, including court approval. In the event that the
parties enter into a stipulation of settlement, a hearing will be
scheduled at which the Court of Chancery will consider the
fairness, reasonableness, and adequacy of the settlement. If the
settlement is finally approved by the court, it will resolve and
release all claims in all actions that were or could have been
brought challenging any aspect of the proposed transaction, the
merger agreement, and any disclosure made in connection therewith,
including in the Definitive Joint Proxy Statement/Prospectus,
pursuant to terms that will be disclosed to stockholders prior to
final approval of the settlement. In addition, in connection with
the settlement, the parties contemplate that the parties shall
negotiate in good faith regarding the amount of attorneys' fees
and expenses that shall be paid to plaintiffs' counsel in
connection with the Actions. There can be no assurance that the
parties will ultimately enter into a stipulation of settlement or
that the Court of Chancery will approve the settlement even if the
parties were to enter into such stipulation. In such event, the
proposed settlement as contemplated by the memorandum of
understanding may be terminated.
Supplement to Definitive Proxy Statement
In connection with the settlement of certain outstanding
stockholder suits as described in the Form 8-K, Forest has agreed
to make these supplemental disclosures to the Definitive Joint
Proxy Statement/Prospectus dated May 5, 2014. This supplemental
information should be read in conjunction with the Definitive
Joint Proxy Statement/Prospectus, which should be read in its
entirety.
GE CAPITAL: Settles Credit Card Marketing Suit for $225 Million
---------------------------------------------------------------
Jenna Greene, writing for Legal Times, reports that in the federal
government's largest credit card discrimination settlement in
history, GE Capital Retail Bank, now known as Synchrony Bank, will
pay $225 million to credit card customers harmed by deceptive
marketing or discrimination.
The Consumer Financial Protection Bureau and the U.S. Department
of Justice charged the bank with deceptively marketing credit card
add-on products that provided debt cancellation in the event of
certain hardships, and discriminating against Hispanic customers
by refusing to extend special offers to people who lived in Puerto
Rico or preferred to communicate in Spanish.
"This kind of conduct has no place in the consumer marketplace,"
CFPB Director Richard Cordray told reporters on a conference call.
"No one should be excluded from credit opportunities simply
because of where they live or the language they speak."
Jocelyn Samuels, the acting head of DOJ's Civil Rights Division
added, "The blatant discrimination that occurred here is unlawful
and will not be tolerated."
Synchrony, which until June 2 was known as GE Capital, in a
statement said that it self-identified the discriminatory practice
and took corrective actions. "The bank regrets this error. Its
priority is treating customers fairly and when issues are
identified, it is committed to making it right. The CFPB
recognized the bank's response to this matter as 'responsible
business conduct,' including the 'self-identification of the
matter through self-policing, prompt reporting, self-initiation of
consumer remediation, and full and timely cooperation with
regulators.'"
Covington & Burling partner D. Jean Veta represented GE. She did
not immediately respond to a request for comment.
According to the government, GE Capital offered five debt
cancellation add-on products, which let consumers off the hook for
a portion of their credit card balance in the event of certain
hardships such as involuntary unemployment or disability. But
telemarketers wrongly led consumers to believe that they would not
have to pay for the add-on products so long as they paid off their
balances, and they also sold the add-ons to people who were
ineligible.
The CFPB uncovered the practices when it examined GE in December
2012. The consent decree calls for GE to refund $56 million to
638,000 consumers, and to pay a $3.5 million penalty.
The Justice Department charged GE with violating fair lending laws
by discriminating against 108,000 Hispanic customers, suing the
company in Utah federal court.
GE had special promotions that allowed consumers with delinquent
accounts to settle their balances by paying off part of their
debt, but did not extend the offer to eligible Hispanic customers.
The settlement, which is subject to court approval, calls for GE
to provide $169 million in relief.
The CFPB has brought a series of cases against credit card issuers
for deceptive marketing. In 2012, Discover Financial Services
paid $214 million and Capital One Bank paid $210 million to settle
CFPB charges of deceptively marketing credit card add-on services.
GENERAL MOTORS: 2007 Report Shows Evidence of Ignition Defect
-------------------------------------------------------------
Amanda Bronstad, writing for The National Law Journal, reports
that when forensics expert Erin Shipp began looking into the cause
of an accident in West Virginia involving a 2005 Chevy Cobalt, she
turned to an obvious source: The U.S. National Highway Traffic
Safety Administration. On its website, she found a 2007 research
report concluding that, in a similar crash in Wisconsin, the
ignition switch might have disabled the airbags. Ms. Shipp, hired
by the plaintiffs attorney in a lawsuit, thought the same thing
might have happened in her case.
To her surprise, General Motors Co.'s attorneys, when informed of
her finding, appeared to have been caught completely off guard.
They quickly settled the case.
"My hope was maybe this will have a little impact on them,"
Ms. Shipp said. "But I didn't realize at all what sort of an
impact it did create."
The case is one of about a dozen that led GM's lawyers to realize
they had a serious problem with the ignition switch -- the subject
of recalls totaling 2.6 million vehicles this year, according to a
June 5 internal report conducted for the automaker by Jenner &
Block chairman Anton Valukas. The defects, which can shut down
engines, disabling airbags, power steering and other electrical
systems, have been linked to 13 deaths and dozens of crashes. On
June 16, GM recalled another 3.36 million vehicles over similar
ignition problems.
Plaintiffs lawyers claiming to represent hundreds of victims are
skeptical of GM's 315-page report, which concluded that top
officials were unaware of the defect and blamed the problems on
incompetence by many of its employees. Mr. Valukas and chief
executive officer Mary Barra were expected to appear on Capitol
Hill on June 18 to discuss the report's findings.
The first cases
According to the Valukas report, neither Ms. Barra nor general
counsel Michael Millikin knew about the first lawsuits that
emerged over disabled airbags, later linked to the ignition
defect. In fact, senior product liability attorney William Kemp,
the liaison between GM's legal staff and engineers, couldn't
explain why he didn't tell Mr. Millikin about the problem until
earlier this year. Mr. Kemp is among 15 people GM has since
fired.
In 2003, according to the Valukas report, GM's engineers began
looking into complaints from customers about ignitions turning off
-- although they failed to realize that such a stall would disable
an airbag. GM's lawyers, meanwhile, faced lawsuits over accidents
in which airbags didn't go off.
Plaintiffs lawyer Mark Robinson, senior partner at Robinson
Calcagnie Robinson Shapiro Davis in Newport Beach, Calif., called
those cases "red flags."
"These accidents," he said, "are important evidence of knowledge
at very high levels of the company."
Regarding the first two lawsuits cited in the report, GM concluded
that the airbags wouldn't have deployed based on the nature of the
accidents. But in a third case, the airbags should have worked.
That involved a July 4, 2004, crash by a 2004 Saturn Ion. The
driver's name is redacted in the report, but Shara Lynn Towne, one
of the 13 deaths GM has linked to its ignition-switch defect, died
from a crash the same day in the same make and model vehicle in
Visalia, Calif.
During a 2006 internal meeting about the case, a GM attorney said
that engineers had "no solid technical explanation" for why the
airbags didn't deploy. The case settled.
Ms. Towne's attorney, Brian Chase, did not return a call for
comment. But on his firm's website, he called Ms. Towne "the
first known victim" of the ignition-switch defect. "GM knew of
this defect back then and yet made a decision to quietly settle
out of court so there would be no media or government attention,"
wrote Chase of Bisnar Chase in Newport Beach, Calif.
In 2007, GM's outside counsel submitted an evaluation of a crash
involving a 2004 Saturn Ion on Nov. 15, 2004. Again, the names
were redacted, but Gene Mikale Erickson, who died on that date in
a 2004 Saturn Ion, is one of the 13 known deaths. Mr. Erickson
died when his girlfriend, who was driving, slid off a road in
eastern Texas, slamming into a tree. The airbags didn't go off.
Hartline Dacus Barger Dreyer, GM's outside counsel in Dallas,
called the crash "unusual."
"That's code for 'You're fucked,' " said Robert Hilliard of
Hilliard Munoz Gonzales in Corpus Christi, who now represents
Mr. Erickson's family and the girlfriend, Candice Anderson, in a
new lawsuit they filed on June 9.
In its evaluation, Hartline Dacus attributed the airbag failure to
some kind of power loss but concluded "a jury will find that the
vehicle was defective." The case settled in 2008.
Hartline Dacus partner Darrell Barger did not respond to a request
for comment. Another lawyer who represented GM in the case, J.
Karl Viehman, managing partner of Minneapolis-based Bowman and
Brooke, referred requests for comment to GM.
GM spokesman Greg Martin declined to comment for this story.
Warning: punitive damages
By 2009, GM's outside lawyers, faced with a string of accidents,
began to raise the prospect that the company faced substantial
punitive damages.
King & Spalding's evaluation of a case arising from the Dec. 31,
2009, crash of a 2006 Chevy Cobalt was the first to warn GM that a
jury might award such damages, according to the Valukas report.
The report doesn't give the name of the victim, but Seyde
Chansuthus, one of the 13 people known to have died in an
ignition-related crash, was killed on the same day in her 2006
Cobalt.
During a 2010 evaluation of the case, King & Spalding cited a
"sensing anomaly" in the vehicle, according to the Valukas report,
that "could provide fertile ground . . . for an award of punitive
damages, resulting in a significantly larger verdict."
GM settled the case in 2011. Atlanta's Butler, Wooten & Fryhofer,
which represented the Chansuthus family, did not respond to a
request for comment.
GM's outside counsel in that case, Harold Franklin, a partner at
Atlanta's King & Spalding, did not respond to a request for
comment. Les Zuke, a spokesman for King & Spalding, referred
requests for comment to GM. (King & Spalding also assisted in the
Valukas report.)
Then the West Virginia case was filed. The victim, an injured
passenger, wasn't identified in the Valukas report, but the
Dec. 13, 2009, crash involved a 2005 Chevy Cobalt that slid on
black ice, swerving off the road and into a tree.
"My initial impression was, gee, it looks like they were going
fast enough, they should have gotten air bags in this," said
Ms. Shipp, an associate specializing in vehicle engineering at
Robson Forensic Inc. in Lancaster, Pa.
The 2007 report she discovered, commissioned by the National
Highway Traffic Safety Administration and conducted by Indiana
University's Transportation Research Center, concluded that the
ignition switch in the Wisconsin crash had stuck in the accessory
position, possibly preventing the airbags from deploying. The
crash killed two passengers and injured the driver.
Ms. Shipp cited the report in coming to the same conclusion in the
West Virginia case. "I didn't realize what I found was anything
unique," she said. "It was all in the public record."
But nobody at GM -- engineers or lawyers -- knew about the
research, even though they were aware of the Wisconsin crash,
according to the Valukas report. GM's lawyers at Eckert Seamans
Cherin & Mellott warned that the automaker could face punitive
damages at trial. Edward Gray, co-chairman of Eckert's products
liability group, who handled the case, did not respond to a
request for comment.
Even after learning of the research, GM's engineers didn't accept
the findings until more than a year later -- after the plaintiffs
attorney in another case involving a 2005 Cobalt dropped a
"bombshell" during the deposition of one of its engineers.
Although the victim's name was redacted, the case presents
identical facts and circumstances as one filed on behalf of
Brooke Melton, who died on March 10, 2010. That case is largely
credited with prompting GM's recalls.
Mr. Kemp told GM's investigators that it is "always disappointing
when someone outside the company knows more about your product
than you do." But not everyone believes GM's story.
"GM is very sophisticated in trolling for their own accidents and
getting there first and collecting the information," said
Hilliard, who filed a lawsuit against GM on March 21 on behalf of
the victims of the Wisconsin crash. "How possibly can the same
company say they did not know NHTSA found out about an accident?
That's like a blind hog finding an acorn."
GENERAL MOTORS: Recalls 3 Million Cars Over Ignition Switch Issues
------------------------------------------------------------------
Reuters reports that General Motors Co. recalled three million
more cars for ignition switch issues on June 16, roughly doubling
the number of GM vehicles with known switch problems in a crisis
that has defined the automaker and new Chief Executive Mary Barra
this year.
GM on June 16 recalled 3.36 million midsize and fullsize cars
globally with ignition switches that can be jarred out of the
"run" position, potentially affecting power steering, power brakes
and air bags. The switch issue is similar to the defect linked to
at least 13 deaths in an earlier, 2.6-million vehicle recall of
Chevrolet Cobalts and other small cars.
GM engineers first noted the Cobalt problem more than a decade
ago, and GM's slow response to the switch issue triggered
investigations within the company and by Congress and federal
agencies.
"The recall is just sort of the tip of the iceberg in terms of
what has to be done" at GM, Senator Richard Blumenthal, a Democrat
from Connecticut and one of GM's more vocal critics in Congress,
said after the June 16 recall.
GM said the engineer who designed the defective Cobalt switches,
Ray DeGiorgio, also designed the switches on the latest batch of
recalled cars. Mr. DeGiorgio was fired after the earlier recall.
He could not be reached for comment.
GM has issued 44 recalls this year totaling about 20 million
vehicles worldwide, which is more than total annual U.S. vehicle
sales. Of the recalls this year, nearly 6.5 million of the
vehicles were recalled for ignition switch-related issues,
including more than half a million Chevrolet Camaros on June 13.
The automaker raised a recall-related charge for the second
quarter to $700 million from $400 million. That takes GM's total
recall-related charges this year to $2 billion.
Despite the rash of recalls this year, GM U.S. sales rose in May
to the highest level since August 2008.
GM's high profile problem this year has catalyzed recalls at other
automakers, said David Cole, chairman emeritus of the Center of
Automotive Research in Ann Arbor. He described the recent flurry
of activity as "recall spring."
"If it were unique to GM, I would say it is a much more serious
problem," said Mr. Cole.
Clarence Ditlow, Executive Director Center for Auto Safety of the
June 13 recall, said GM could not afford to take a chance on not
recalling a car. "Their calculus has totally changed," he said.
GM said it was aware of eight crashes and six injuries related to
the latest recall, and that there were no fatalities. The
automaker on June 16 said it would replace or rework ignition keys
to eliminate a slot in the end of the key. The slot allows a
dangling key ring to slip to one side and pull the ignition key
out of run position.
"The use of a key with a hole, rather than a slotted key,
addresses the concern of unintended key rotation due to a jarring
road event, such as striking a pothole or crossing railroad
tracks," it said.
A spokesman said the ignition switches did not need to be
replaced, even though they were "slightly" below the company
specification for torque -- the force needed to move the switch
out of the run position.
The latest recall includes Buick LaCrosse, Chevrolet Impala,
Cadillac DeVille and several other models, though only the Impala
is currently in production. The cars cover model years 2000
through 2014.
The June 16 recall comes two days before CEO Barra is due to
return to Congress to testify about the earlier Cobalt recall.
Ms. Barra will be joined by Anton Valukas, chairman of GM's
outside law firm Jenner & Block, who conducted a months-long
investigation that detailed deep flaws in GM's internal decision-
making process.
The so-called Valukas report triggered the departures of 15 GM
employees, including several high-ranking executives in the legal,
engineering and public policy groups, as well as Mr. DeGiorgio.
GM said Ms. Barra wants to update Congress on the actions the
company has taken in response to the switch recall crisis,
including fixing the failures outlined in the company's internal
report, announcing plans to establish a victims' compensation fund
and setting up a structure at the company to ensure vehicle
safety.
The U.S. National Highway Traffic Safety Administration, which
administers vehicle recalls, said on June 16 that it would
"monitor the pace and effectiveness" of the latest GM recall and
"take necessary action as warranted."
GENERAL MOTORS: Legal Team Under Spotlight Over Recall Controversy
------------------------------------------------------------------
Sue Reisinger, writing for Corporate Counsel, reports that the
deadly ignition switch fiasco at General Motors Co. has spawned a
remarkable breadth of legal issues, ranging from the law
department's role in recalls to the company's duty, if any, to
compensate victims after it declared bankruptcy. Indeed, seldom
has a legal department been thrust into such a high-profile role
in a huge public controversy.
The ignition switch debacle inevitably cast the legal team in a
harsh light and led to the oft-repeated phrase: Where were the
lawyers? Well, they were right here.
GM's legal department has had three different, and impressive,
leaders since the defective switch was uncovered. Any one of them
might have led the company down a very different path, and perhaps
saved lives along the way. But they didn't. Instead they allowed
the company to waste nearly 10 years. That's 10 years of
committee meetings and haggling and ignoring possible solutions.
And 10 years of not issuing a recall while GM cars crashed and
people died.
The recall delay appears unprecedented. Allan Kam, who spent 25
years as an enforcement attorney with the National Highway Traffic
Safety Administration (NHTSA) and now operates a consulting firm
called Highway Traffic Safety Associates in Bethesda, says most
delays involve a few months or maybe even a year. But a decade?
Mr. Kam explained, "I've seen hundreds of safety defect
investigations at NHTSA, and I can't say this is the most severe
defect I've ever seen. But it is among the most severe delays in
conducting a recall. A 10-year delay is extraordinary."
In Mr. Kam's mind there was no good reason for the delay. After
recently examining GM's filings with NHTSA, Mr. Kam said the
company knew enough by 2004, or early 2005 at the latest, to know
it had a problem and should have issued a recall then. But it
didn't.
So now 13 people -- investigators suggest that number will rise --
are dead, and hundreds are injured because of the defect. The
flaw involves a small, malfunctioning spring-like device in
several models that lets the key fall back to an off or accessory
position while the car is running. This switch-off can disable
air bags, impair systems such as power brakes and steering, and
startle drivers, who sometimes crash. The ignition issue, and how
it was mishandled, has nearly brought GM to its knees.
The company has suffered a massive blow to its reputation. It
faces dozens of lawsuits carrying billions of dollars in potential
liability. GM conducted an internal investigation, and a report
was released in early June. At least four in-house lawyers, one a
vice president, lost their jobs -- though not general counsel
Michael Millikin. No former or current GM lawyer responded to
requests for comment for this story.
The Valukas report made several recommendations to reform how the
legal department works. The U.S. Department of Justice is
conducting a criminal investigation, and several state attorneys
general were also investigating the matter. And Congress is
looking into why the recall took so long. Since February the
company has agreed to recall 2.6 million vehicles over the defect
and to pay a $35 million settlement to NHTSA -- the maximum civil
penalty allowed by law.
At the heart of it all is a legal department of about 200
attorneys who failed to communicate. And that's putting their
failure in the best possible light. Some observers prefer the
phrase "cover-up." At least one class action suit over the defect
clearly points at the lawyers' role in not disclosing the truth
during GM's 2009 bankruptcy proceedings.
First the complaint offers a detailed timeline of GM actions,
along with emails that show the company knew about the defect for
over a decade. Then the complaint states that it is
"inconceivable that individuals within GM's upper management and
general counsel's office did not know about the ignition switch
defect in GM vehicles, or the attendant contingent liabilities,
when GM entered bankruptcy in June 2009."
Some U.S. senators were incredulous too. At a hearing in April,
they voiced similar concerns about what the lawyers knew. After
all, GM's attorneys worked on cases over the years involving
crashes caused by the defective switch. But as GM chief executive
Mary Barra tried to explain to the senators: "Within GM there were
silos, where information was known in one part of the business,
for instance in the legal team, but was not communicated to the
engineers."
GC Millikin has been taking the brunt of the scrutiny. But so far
he's not talking. One plaintiffs attorney, Robert Hilliard of
Hilliard Munoz Gonzales in Corpus Christi, is trying to depose
Mr. Millikin. Mr. Hilliard told The Detroit News in May: "As soon
as I ask for GM to make its general counsel, Mr. Millikin,
immediately available for deposition to get to the bottom of this
cover-up and to hopefully shed some light on the issue of whether
and for how long GM's legal department delayed immediate and
forthright disclosure of the defect so as to buy more time to
circle the wagons, GM delays the litigation."
But Mr. Millikin wasn't the only legal chief to miss the problem.
To fully understand decisions that GM made, it helps to review the
three general counsel during this time period and the legal and
other issues flying around them. Mr. Millikin took over in 2009;
the others are Thomas Gottschalk, who served from 1994 to 2007,
and Robert Osborne, who had the job from 2006 to 2009, overlapping
Gottschalk's final months.
If early responsibility falls on any GC's shoulders, it is
Mr. Gottschalk's. He was in charge of the legal department when
the pre-2007 decisions were made about how to handle the defect.
The first ignition-related lawsuits hit in 2004 and 2005, both
involving cars in which air bags didn't deploy. If he did not
know about his lawyers' ensuing discussions -- which carried high
legal risk for the company -- then why didn't he?
His own policies, quoted in the internal report, stated that
lawyers were to inform him of such matters. The report doesn't
say what precise questions Gottschalk was asked by the internal
investigator, or even if he was asked if he knew about the deadly
defect at the time.
Mr. Gottschalk referred all questions to the company. GM
spokesman Greg Martin referred questioners to the internal report.
Tom Gottschalk's history with GM goes back to before he joined the
company. While a litigation partner at Kirkland & Ellis in
Washington, D.C., in the mid-1970s, Gottschalk served GM as
outside counsel. In that role he successfully defended the
automaker against several high-profile cases, including
allegations that it fixed prices in one action, and that it
covered up brake defects in another. GM was so taken with him
that it hired him as general counsel in 1994.
So Mr. Gottschalk was there for the great explosive gas tank legal
battle in the mid-90s. The truth came out only after GM sued the
Ralph Nader-founded Center for Auto Safety over the Center's
claims that side-mounted gas tanks on GM trucks were dangerous and
prone to explode on impact. The company denied there was a
problem, and there was no public record of any crash victims suing
GM.
But the Center found out otherwise. In 1996 the Center obtained
through the court the names of 245 gas tank defect cases that had
been filed starting in 1973. And it later came out in 2003 that
GM had settled 297 gas tank cases for $495 million, demanding
confidentiality as part of the settlements.
It was the same legal strategy that GM's legal team would follow
in the ignition switch cases. And the same "safety" lawyer,
William Kemp, was involved in both the gas tank and the faulty
ignition cases. Mr. Kemp, a 30-year GM veteran, was one of the
in-house lawyers who was let go in early June.
Still, Mr. Gottschalk was always highly regarded in legal circles.
He strived for diversity and a strong in-house pro bono program.
In 1997 he convinced lawyers at Ford Motor Company and other local
companies to join GM in forming a pro bono legal clinic to serve
Detroit's poor. GM lawyers, including Gottschalk, voluntarily
handled everything from wills to dog bites for clinic clients.
Today he leads the pro bono program at Kirkland & Ellis, where he
is of counsel.
Right after Mr. Gottschalk became GM's general counsel, he decided
to restructure its legal department. By creating a global law
department, the GC arranged for in-house attorneys to report to
his office rather than to business leaders. As he told Corporate
Board Member magazine earlier this year, the change allowed his
attorneys "some professional independence within the company so
they could be objective legal advisers and counsel on risk and
. . . not be overruled by nonlawyers."
In 2000 GM brought on a new CEO, Richard "Rick" Wagoner. Such a
switch can sometimes mean turmoil for a general counsel.
Gottschalk navigated the change, however, and in May 2001 the
company gave him a promotion and an additional title: executive
vice president for law and policy.
But that same year, the first problems with the ignition switch
were noted, according to a document GM just filed in March with
NHTSA. The document states that a 2001 preproduction report on
the Saturn Ion "addressed an issue relating to the ignition
switch's 'passlock' system." The issue involved the same defect
that eventually led to the 2014 recalls.
And there were more red flags during Mr. Gottschalk's tenure. In
2003 NHTSA received the first complaint about the defect. A year
later GM opened its first inquiry into the ignition problem, which
it closed in early 2005 because "none of the solutions represents
an acceptable business case," according to GM documents. After
consumer suits were filed and there were more field reports about
vehicles losing power, an engineer proposed that GM redesign the
key. Though initially approved, GM admitted to NHTSA that the
idea was later canceled. Still, neither GM nor NHTSA ordered a
recall.
At the time GM labeled the problem one of "inconvenience" to
drivers, and not a safety issue. With a safety issue, cost is not
a determining factor. But the internal report explained that the
failure to understand that a stalling car might be a hazard meant
that the issue was put into a different category of problems --
and cost was a relevant consideration for problems of mere
"convenience."
And cost was on everyone's mind at the time. The company was
hemorrhaging money, suffering quarter after quarter of
multimillion-dollar losses. In June of that year, Mr. Gottschalk
pulled Mr. Millikin out of his role as coordinator of global legal
services and named him associate general counsel, presumably
grooming him for the top job.
Then, what is believed to be the first crash death related to the
ignition switch occurred in July 2005 in Maryland. Six months
later, in December, the company issued a service bulletin to
dealers alerting them to a faulty ignition problem, but still
didn't recall any vehicles.
What GM did do was delete a reference to "stalling" in the
proposed service bulletin language. The report states that
employee Steve Oakley, who drafted the language, explained that
"the word 'stall' is a 'hot' word that GM generally does not use
in bulletins because it may raise a concern about vehicle safety,
which suggests GM should recall the vehicle, not issue a
bulletin."
Also the company had warned employees not to use sensitive words
that could be turned against them in later lawsuits. "A number of
GM employees reported that they did not take notes at all at
critical safety meetings because they believed GM lawyers did not
want such notes taken," the internal report notes.
Or perhaps the wording decision was related to cost. The company
posted a $4.8 billion loss in the fourth quarter of 2005, and a
$10.6 billion loss for the entire year. By early 2006,
shareholders were calling for CEO Rick Wagoner's head.
Still more ignition complaints poured in. Seven sour quarterly
earnings were stated and later restated downward. The losses
grew, and rumors of bankruptcy circulated. At one point the GM
board of directors called a secret meeting to talk about firing
Mr. Wagoner, according to a Wall Street Journal report, but he
confronted the directors and talked them out of the action.
Amid this raging firestorm, Gottschalk announced his pending
retirement. And during the turmoil, the GM design engineer who
first approved the ignition switch -- which never met GM specs in
the first place -- quietly signed a form that authorized the
supplier to change the defective switch.
But that change wouldn't occur until later models in 2007. And he
never told anyone at GM nor documented the change. The internal
report would blame his lack of communication for leaving others
stumbling in the dark for years as they searched for the defect's
cause. The engineer was recently fired.
The general counsel's job was also storm-tossed. Mr. Gottschalk
left the role in September 2006, but stayed at GM under his other
title as executive VP for law and policy until April 2007. Rather
than promote Mr. Gottschalk's number two, Mr. Millikin, GM brought
in a short-term expert to restructure the company.
That expert was outside counsel Robert Osborne, who became GC in
September 2006. Mr. Osborne had worked for 23 years at
Mr. Gottschalk's old firm, Kirkland & Ellis, before joining Jenner
& Block in 2002, where he chaired its corporate practice. He also
had served for a time as general counsel to Lands' End Inc.
Considered a whiz at mergers, acquisitions and spinoffs,
Mr. Osborne had represented GM in the 1995 sale of National Car
Rental, the later sale of Hughes Electronics, and various spinoffs
and public offerings of stock and debt, according to the company.
His work was cut out for him. Osborne and the CEO were clearly
focused on how to save the company in 2007, and probably not on
product problems. At the same time, NHTSA officials cited 29 more
complaints about the bad switches, four fatal crashes and 14 field
reports. In addition, in 2007 GM learned of four more crashes
when the engine turned off and air bags did not deploy, according
to NHTSA documents. But still no one at GM or NHTSA insisted on a
recall.
The following year things only got worse. While the ignition
complaints and crashes continued, NHTSA responded to one victim,
"There is insufficient evidence to warrant opening a safety defect
investigation." In addition, the global economic crisis of 2008
doomed GM's financial health. Mr. Osborne, with Mr. Millikin's
help, focused on planning for bankruptcy and receiving a
government bailout. Meanwhile, others at GM still studied data
from more crashes. In May of 2009 the company found that seven of
14 crashes showed the ignition switch had jumped to the
"accessory" position while the car was running.
But that fact may have been temporarily lost in the financial
abyss. The company filed for Chapter 11 bankruptcy the following
month, June, citing nearly $173 billion of debt. Thanks to the
planning, the so-called New GM quickly exited bankruptcy in July.
His main assignment over, Mr. Osborne left GM two months later and
in 2010 became general counsel at consulting firm Booz Allen
Hamilton. Today he is retired but of counsel at Jenner & Block,
and he writes a conservation blog.
So in mid-2009 Mr. Millikin finally took control of the post he
was groomed for. The former federal prosecutor had joined GM's
legal department in Detroit in 1977, and 10 years later became
head of in-house litigation. In Gottschalk's restructuring,
Mr. Millikin headed the global litigation practice. Two years
later, in 1997, Gottschalk moved him to Zurich to be general
counsel of GM's burgeoning international operations as well as GC
of General Motors Europe. In an interview with Corporate Counsel
magazine after returning to Detroit and becoming associate GC,
Mr. Millikin fondly recalled his days abroad and shook his head in
mock disbelief at his decision to return to Detroit.
Mr. Millikin had little time to celebrate his promotion to GC. A
month after taking the job, the company underwent a series of
leadership shockwaves and revolving CEOs. First CEO Wagoner was
ousted, to be replaced by the chief operating officer, Fritz
Henderson. That move lasted only a few months, when newly named
board chairman Edward Whitacre Jr. shifted to the CEO post in
December.
Though GM was finally seeing financial daylight, the year 2009
ended dismally otherwise. Around the time Mr. Whitacre took over
the CEO role in December, a Chevy Cobalt crashed, killing its
occupant when the air bags did not deploy. And 2010 brought more
turmoil. The lawsuits over crashes due to the defective switches
kept growing.
Outside the litigation efforts, the company wanted to pursue an
IPO in 2010. Mr. Whitacre, unwilling to make a long-term
commitment to the CEO job that an IPO would require, felt he had
to step aside. So board member Daniel Akerson took the reins.
Mr. Akerson seemed to bring some stability. In 2011 the company
was making a solid profit, and the legal department began quietly
settling lawsuits over crashes due to defective switches.
But there was a problem: The internal report states, "By 2011,
outside counsel, privy to . . . engineers' data, had repeatedly
warned GM in-house counsel that GM could be accused of egregious
conduct due to its failure to address the problem of airbag
nondeployment [due to faulty ignitions], and that such conduct
might subject GM to liability, including punitive damages."
So in July, GM called a meeting involving people from legal and
two other departments to authorize a new probe into crashes. But
the investigation, an analysis of its data, then more analyses
would continue for nearly three years. And there was still no
recall.
Meanwhile GM was handling the ignition suits in a structured way.
In-house product litigation attorneys had authority to settle
cases up to $100,000, according to the internal report. Cases
over $100,000 and up to $1.5 million required approval of a
committee called the Roundtable, which met weekly and was led by
the litigation practice area manager. All product litigation
staff attorneys were invited to attend and chime in.
Cases settling for $2 million to $5 million required approval of a
higher-level Settlement Review Committee, which met monthly and
was chaired by the head of global litigation. Members included
both the general counsel for North America and Mr. Kemp, the
safety lawyer. Cases over $5 million required the approval of the
general counsel. No faulty ignition cases settled for that much,
according to the report.
At both settlement committees, member attorneys would vote on
outcomes. But the committee chair was the ultimate decision-maker.
Litigation manager Michael Gruskin chaired both committees from
mid-2007 to March 2012. Lawrence Buonomo, who was also let go
last week, replaced him beginning March 8, 2012. The report said
the Roundtable considered an average of 3.4 cases per meeting in
2012, and 3.76 in 2013. The Settlement Review Committee averaged
1.4 cases in 2012 and 1.3 in 2013.
Then came the litigation "bombshell." In 2013, in one key case
involving a fatal crash, plaintiffs' attorneys learned of the
secretly replaced switch. King & Spalding attorney Philip
Holladay wrote an almost desperate letter saying, "This case needs
to be settled . . . There is little doubt that a jury here will
find that the ignition switch used on [a certain] 2005 Cobalt was
defective and unreasonably dangerous, and that it did not meet
GM's own torque specifications."
Mr. Holladay's April 2013 letter said the plaintiffs' lawyer would
cite the fact of "an investigation [of faulty switches] that has
now been dragging on for almost two years as proof positive of
GM's conscience [sic] indifference and willful misconduct when it
comes to the safety of its vehicles' occupants."
But no one reportedly told the boss. The internal report says that
no GM lawyer "elevated Holladay's letter or specific issues
related to the case to general counsel Michael Millikin prior to
the settlement." So still there was no recall.
The revolving CEO door continued. Mr. Akerson retired in January
2014, to be replaced by current CEO Mary Barra. Then in February
the engineers' analysis finally reached a conclusion, and GM began
the first of what became a series of recalls. The action set off
what became a chain reaction of government investigations and
media scrutiny of why the recall took so long.
That's when GM and Mr. Millikin countered with their own internal
inquiry. The company announced in March that Mr. Millikin and
outside counsel Anton Valukas of Jenner & Block would cohead the
internal investigation, with help from another law firm often used
by GM, King & Spalding. Both Jenner & Block and King & Spalding
were longtime GM defense counsel. But critics claimed that the
probe needed independent leaders, not GM insiders. As Mr. Kam,
the ex-NHTSA attorney, put it: "You sort of think they may be part
of the problem, rather than part of the solution."
In a strategic move, Mr. Valukas brought in another firm to
interview Gottschalk and Osborne for the report. Mr. Osborne had
worked for Jenner & Block, the report explains, and GM wanted to
avoid the appearance of a conflict of interest. A GM spokesman
refused to identify the firm, but it is named in a footnote in the
report: defense law firm Cotsirilos, Tighe, Streicker, Poulos &
Campbell of Chicago. Presumably Mr. Valukas saw no conflict in
Jenner & Block interviewing Mr. Millikin, who hires the law firm.
The report also names only Mr. Valukas, and not Mr. Millikin, as
sole author.
Not surprisingly, critics have lambasted the 325-page Valukas
report. For example, it offers meticulous details about facts and
events that support the report's theory that GM was negligent but
not maliciously or criminally so. But it offers scant details on
questions like: What did Gottschalk and Osborne know, if anything,
about the defect? Who did Buonomo and Kemp tell about the
settlement cases and what did they say? What was Lucy Clark
Dougherty's role in the defect decisions, if any, when she was
North American GC, when Kemp and Buonomo reported to her?
One senator called it "the best report money can buy." The
activist Center for Auto Safety labeled it an "elaborate
whitewash." The Center mocked GM's contention that the ignition
switch wasn't considered a safety issue. "Stalling has been the
subject of over 300 safety recalls," it said in a statement. "GM
is certainly aware that stalling is a safety defect because it
litigated and lost the issue in a seminal case that established
loss of vehicle power on the road as a safety defect" [in U.S. v.
General Motors Corp., 1976].
GM disagreed. "Most people who read the report objectively
consider it thorough and brutally tough," company spokesman Greg
Martin told Corporate Counsel.
But some plaintiffs' attorneys, who asked not to be named because
they are actively litigating GM cases, were also critical. They
called the report a clever defense strategy that tries to spin the
story. It creates a scripted "company line" for future GM
witnesses to follow in any investigations, they said, as it simply
blames poor communication and a lax culture that lacked urgency.
Now GM, Mr. Millikin and the legal department face an uncertain
future. Auto industry gadfly Peter DeLorenzo, writing about the
recall mess, said in an April blog post: "GM's legal staff needs
to be blown up, starting with a regime change at the top and a
thorough purging of any and all who have enthusiastically taken
their marching orders from the current chief counsel."
Some media have speculated on whether Mr. Millikin will be ousted.
But GM issued a statement saying the general counsel, who turns 66
in August, has no plans to retire and will remain in his position.
Elsewhere the U.S. bankruptcy court in Manhattan is considering
whether some suits against GM over the defects should be removed
from bankruptcy protection. Under terms of the 2009 bankruptcy,
the so-called New GM (a new entity created by the bankruptcy) was
given protection against all liabilities that arose prior to the
bankruptcy, including crashes due to defects.
But attorney Alexander Schmidt, who brought an action in
bankruptcy court on behalf of eight plaintiffs, argued that GM
knew, or should have known, about the massive potential for
liabilities over the defect "and failed to disclose that
information to the court or other interested parties" during the
2009 proceedings. Mr. Schmidt, of Wolf Haldenstein Adler Freeman
& Herz, told Corporate Counsel that GM "pulled the wool over the
eyes of the government when it fraudulently induced the government
to support it during bankruptcy."
Harry Wilson, an Obama administration adviser to the 2009 auto
task force, confirmed the lack of knowledge. Mr. Wilson said in
May that the task force was unaware of the switch problems when it
crafted the $49.5 billion bailout for GM five years ago, according
to a Detroit News story. The issue, Mr. Wilson said in the
article, "sadly is emblematic of the cultural problems" at the
automaker.
Now GM says it's changed. And it's looking for a way to
compensate crash victims. It hired Kenneth Feinberg, the victim
compensation expert who administered the September 11 Victim
Compensation Fund and One Fund Boston, arising out of the Boston
Marathon bombings, to come up with a plan to address hundreds of
damage claims filed against the automaker. The company, however,
appears to continue fighting economic claims that seek loss of
value of defective vehicles, according to its bankruptcy court
filings.
And then there are the ongoing multiple investigations. Both
houses of Congress have held hearings on the recall delay and
intend to hold more. In fact, Ms. Barra and Mr. Valukas appeared
before the House Energy and Commerce Committee's Oversight and
Investigations subcommittee for further questioning on June 18.
Legal observers wonder how much information, beyond the report,
Congress will demand. For example, in the Hewlett-Packard Company
pretexting scandal in 2007, the lawmakers demanded and got
executives' emails and transcripts of internal investigative
interviews, including with the general counsel. Will GM face
similar demands?
The U.S. Securities and Exchange Commission is looking into GM as
well. But perhaps most worrisome to the automaker is a criminal
probe by the Justice Department. Neither GM nor the DOJ will
discuss it, but the investigation has been widely reported. Some
government officials already accused the company of committing a
crime by not reporting the defect years ago.
Mr. Kam said he expects Justice to use its March settlement with
Toyota Motor Corporation as a model. In that deal, Toyota agreed
to pay a record $1.2 billion penalty for concealing deadly
accelerator problems, admitted that it misled consumers, signed a
deferred prosecution agreement for criminal wire fraud and
accepted an independent monitor to oversee its safety procedures.
But at least one law professor wondered if the Toyota model can
work for GM. Peter Henning, a professor at Wayne State University
Law School, told Corporate Counsel that the Valukas report will
make it difficult for prosecutors.
Mr. Henning explained that Toyota saw red flags but made false
statements about the problem being solved when it wasn't. He said
that doesn't appear to be the case at GM, "which had red flags and
didn't act. How can [prosecutors] get them on what they didn't
do?"
Mr. Henning said it would be a better case if prosecutors can show
that someone lied or deliberately turned a blind eye. But the
Valukas report makes it sound like the engineers and lawyers were
"too stupid" to say or do anything, he said. "They were so
clueless that they didn't even get to the point of lying."
Meanwhile, within GM some changes are evident. Some safety
officials reportedly have retired, left the company or moved to
other jobs. GM created a new job of vice president of global
vehicle safety. And Mr. Millikin named Dougherty, the GC of GM
North America, to be the company's chief legal adviser for global
vehicle safety, even though she was Kemp's and Buonomo's
supervisor.
The Valukas report recommended some 10 other changes in the legal
department. Most have to do with better communication and an
improved culture of accountability. Besides Messrs. Kemp and
Buonomo, the company let go Jennifer Sevigny, an attorney who led
GM's field product assessment group. As head of this group,
Ms. Sevigny worked with the litigation staff on lawsuits and legal
claims. She is mentioned numerous times in the report as having
worked on assessments of the ignition problem.
And it removed Michael Robinson, vice president for environmental,
sustainability and regulatory affairs since 0ctober 2009, and
previously general counsel for GM North America for one year.
Mr. Robinson joined General Motors in 1984 and held a number of
positions on the legal staff, according to a previous GM press
release. Before assuming the North America GC role in 2008, he
served as a practice area manager on the legal staff and then
managing attorney responsible for a variety of regulatory
functions. Prior to that, he was responsible for GM compliance
activities and led development of the GM "Guidelines for Employee
Conduct."
In other GM moves, the Detroit News reported that the company is
more than doubling the number of engineers who look at safety
issues. With all this emphasis on safety, GM so far has recalled
a record 15.8 million vehicles worldwide for various unrelated
reasons -- about 20 times as many vehicles as it recalled last
year. And on June 17 it announced it would recall another 3.4
million for unrelated ignition problems.
The company said it expects to take recall-related charges of $700
million in the second quarter, up some $300 million from an
earlier estimate. And GM now expects to spend some $2 billion on
recalls in the first half of 2014 alone.
But some critics still want more. In May, Sens. Richard
Blumenthal, D-Conn., and Lindsey Graham, R-S.C., introduced a
sunshine-in-litigation bill. The bipartisan bill would require
federal judges to consider public health and safety in product
liability cases before agreeing to seal court records. The
senators said sealed settlements in GM lawsuits since 2005
prevented the public from having earlier knowledge of the
defective ignition switches. But such legislative efforts have
failed in the past.
Safety expert Kam would like to see Congress do one more thing.
"We need criminal penalties in the Safety Act," he said.
Mr. Kam explained that now a company executive considering a
recall that could cost hundreds of millions of dollars might
choose to wait, "and they just might get away with it. Or at
worst they face having to do a recall down the road and pay a
civil penalty to NHTSA . . . It's a cold cost-benefit analysis."
But, Mr. Kam continued, "imagine if in that hypothetical case,
instead of saying, 'Let's wait and save money,' the manager says,
'But I can go to jail if I don't do this recall as the law
requires.' Then it's a different equation."
GENERAL MOTORS: To Create New Industry Safety Standard, CEO Says
----------------------------------------------------------------
Andrew Ramonas, writing for The National Law Journal, reports that
General Motors Co. will create "a new norm and a new industry
standard" for safety and quality, the automaker's chief executive
officer, Mary Barra, said on June 18 in her first public
appearance on Capitol Hill since the publication of a critical
report of the company's handling of an ignition-switch defect.
Appearing with former U.S. attorney Anton Valukas, the Jenner &
Block chairman who wrote the report, Ms. Barra tried to convince
skeptical House panel members that GM's efforts to address the
findings is "more than a campaign" and is intended to change the
way company employees think and act.
Although the investigation led by Mr. Valukas didn't find an
overarching conspiracy to conceal switch-defect information from
the public, the probe discovered a "pattern of incompetence and
neglect." The report includes recommended changes for GM's legal
department.
GM this year has recalled about 6 million vehicles with ignition
problems and tied 13 deaths to the faulty switches, prompting
litigation and congressional hearings.
The company first notified the U.S. National Highway Traffic
Safety Administration about the problem on Feb. 7 and began
announcing recalls three days later -- despite receiving
complaints from customers about switch defects for a decade. The
NHTSA in May announced that GM would pay the maximum $35 million
for failing to promptly tell the public about the problem.
Ms. Barra, who became GM's CEO in January, said her company
already has reformed the safety-decision making process, created a
vice president of global safety position and initiated a program
to encourage employees to quickly report possible safety issues.
She said she also will address cultural problems that the Valukas
report discovered.
"I will not rest until these problems are resolved," she said
during the hearing held by the House Energy and Commerce
Committee's oversight and investigations subcommittee. "As I told
our employees, I'm not afraid of the truth."
House members expressed dismay with a company culture that allowed
a safety problem to go unresolved for years. Some lawmakers took
particular issue with the "GM nod" and the "GM salute," which were
uncovered by Mr. Valukas. The nod was used among managers who
agreed something had to be done, but didn't take action. The
salute was done by employees who tried to put responsibilities on
others instead of themselves.
"I just find it hard to believe that [with] 210,000 employees, not
a single one in that company had the integrity to say, 'I think
we're making a mistake,'" said Tim Murphy, R-Pa., the
subcommittee's chairman. "Not a single one. That's puzzling."
Rep. Diana DeGette of Colorado, the top Democrat on the panel,
said she isn't sure if GM can change its culture, noting that the
automaker has work to do. But Congress also needs to take action,
she said.
Lawmakers introduced the Early Warning Reporting System
Improvement Act in the Senate and the Motor Vehicle Safety Act in
the House in an effort to address concerns raised by the GM
incident.
The Senate legislation from Democrats Edward Markey of
Massachusetts and Richard Blumenthal of Connecticut and the House
bill from Rep. Henry Waxman, D-Calif., would direct automakers to
report to the National Highway Traffic Safety Administration more
information about potential defects and direct the agency to make
the information it receives about safety problems easier for the
public to view.
"This committee should get to work on legislation to address the
findings of our investigation," Ms. DeGette said.
Ms. Barra didn't comment on any particular bill. But she said she
supports efforts to make it easier for the public to see
information submitted to the agency.
GM spent $2.9 million on federal government advocacy during the
first quarter of this year, according to the company's most recent
lobbying activity report. For its advocacy efforts, the company
uses its own employees, as well as several outside lobbyists,
including some from Holland & Knight.
Plaintiffs Lawyers Skeptical
Plaintiffs lawyers remained skeptical following the June 18
hearing, insisting that lawsuits against GM will uncover the truth
about the recalls.
"After the hearing [Wednes]day, I don't believe that we are
getting the complete truth," said Jere Beasley --
jere.beasley@beasleyallen.com -- founding shareholder of Beasley,
Allen, Crow, Methvin, Portis & Miles in Montgomery, Ala. "To
finally get the full truth about the safety culture and
performance at GM, it will require the total involvement of the
civil and criminal justice systems. I don't trust GM to do the
right thing to the hundreds of families who have buried loved ones
who are killed because of GM's wrongdoing and massive cover-up."
The American Association for Justice, which has pushed to pass the
Sunshine in Litigation Act -- to make it harder for judges to seal
settlements in product liability defects cases -- released a
report on June 18 outlining the role that lawyers have played in
uncovering GM's ignition issues and other auto safety problems.
"Then and now, the civil justice system has helped to create and
enforce safety standards, revealed previously concealed defects,
and deterred manufacturers from cutting corners on safety for the
sake of greater profits," the association's president, Burton
LeBlanc, said.
On June 18, plaintiffs attorney Steve Berman, whose firm has filed
several class actions against GM on behalf of consumers over the
recalls, filed a new case seeking damages of up to $10 billion.
The case, which seeks to certify a nationwide class, claims the
automaker's recalls this year of more than 20 million vehicles
have tarnished its reputation so much that 15 million customers
have lost resale values on their cars. A woman in La Quinta,
Calif., who owns a 2010 Buick LaCrosse, filed the suit.
Mr. Berman, managing partner of Seattle's Hagens Berman Sobol
Shapiro, who was co-lead counsel of the class actions filed
against Toyota Motor Corp. over its sudden acceleration recalls,
estimated that GM vehicles have decreased in value from $500 to
$2,600 each. The class action in U.S. District Court for the
Central District of California was filed on behalf of anyone who
owned or leased a GM vehicle between July 10, 2009, and April 1,
2014. The class excludes owners or lessees of vehicles that were
subject to the ignition switch recalls.
"The economic reality is that all GM owners are bearing the costs
of GM's actions," Mr. Berman said in a written statement.
GOOGLE INC: Judge Expresses Doubts on Fairness of Settlement
------------------------------------------------------------
Marisa Kendall, writing for The Recorder, reports that U.S.
District Judge Lucy Koh expressed serious doubts on June 19 as to
whether $324.5 million is fair compensation for Silicon Valley
workers who claim their wages were suppressed by anticompetitive
hiring practices.
She grilled plaintiffs attorney Kelly Dermody, a partner with
Lieff Cabraser Heimann & Bernstein, who said her firm accepted the
settlement after weighing the significant risks of trial.
"You really think the damages would have been zero if this had
gone through trial?" Judge Koh asked. "I just think that's such a
stretch."
Lieff Cabraser and the Joseph Saveri Law Firm submitted the
proposed settlement last month, which, if accepted by Judge Koh,
would free Google Inc., Intel Corp., Adobe Systems Inc. and Apple
Inc. from antitrust claims that they kept down salaries by
conspiring not to recruit each others' employees. Former named
plaintiff Michael Devine, who worked as an engineer for Adobe, has
objected to the settlement and called it inadequate.
Discovery in the case generated pages of well-publicized emails in
which executives discussed the alleged "no-poach" agreements, and
the need to keep them quiet. That evidence led some to question
why plaintiffs would concede to settle, especially with trial a
month away.
But for plaintiffs to succeed, a jury would have had to find that
all seven defendants (including Lucasfilm, Pixar Animation Studios
Inc. and Intuit Inc., which settled claims last year for a
combined $20 million) were part of an overarching conspiracy,
Ms. Dermody said.
She called that a "very real risk" for plaintiffs.
Questions had also been raised as to whether research done by
plaintiffs' damages expert was statistically significant, Google
attorney Robert Van Nest of Keker & Van Nest said, adding there
was a significant chance a jury would have awarded low or no
damages.
"We think we paid a premium," he said. "You have Mr. Devine
saying it should have been a little bit more. Baloney."
If the court uses as a benchmark last year's $20 million
settlement, which encompassed 8 percent of the class, this
settlement should be in the $250-$280 million range, Van Nest
said.
In addition to Keker & Van Nest, Google turned to Mayer Brown.
O'Melveny & Myers represents Apple; Jones Day is counsel to Adobe;
and Munger, Tolles & Olson is defending Intel.
Judge Koh didn't seem to buy the lawyers' arguments regarding the
huge risks of trial.
"I wish you had told me how weak your case was for class cert,"
she said. "If I had known what a loser this was . . . perhaps it
shouldn't have gotten as much of the court's resources as it did."
Plaintiffs counsel had submitted a damages estimate of $3 billion,
which would have been trebled to $9 billion had the case been
successful. That's a far cry from the proposed settlement, under
which each class member would receive an average of about $3,900.
"You're almost now a victim of your own success," Judge Koh told
Ms. Dermody. "You're the one who put out the $3 billion number.
That's what's gotten everyone's expectations so high."
With the extensive email evidence in this case, and the proximity
to trial, Judge Koh said, it seemed the settlement value should be
proportionately much higher than the Lucasfilm-Pixar-Intuit deal.
Girard Gibbs partner Daniel Girard, who is challenging the
settlement on behalf of Mr. Devine, asked Judge Koh to send both
sides back to mediation to see if they can come up with a larger
number. He wouldn't specify how much more money his client wants.
As questions from the bench heated up, Ms. Dermody and Van Nest's
answers became increasingly impassioned.
Ms. Dermody said she has always been one of the attorneys most
zealous about taking this case to trial. But as someone who has
"lived and breathed" this case, and "sacrificed and sweated" for
it, she said, it seems unethical to leave so much money on the
table and instead face the risks of trial.
Mr. Girard was feeling optimistic following the hearing.
"She seemed to be sympathetic to some of the arguments we advanced
on Michael's behalf," he said.
Plaintiffs attorney Joseph Saveri said he wasn't too concerned
about Judge Koh's line of questions. "I think it's part of the
process," he said.
If Judge Koh blesses the deal, a final approval hearing will be
set for Nov. 6.
HAWAII: State Hospital Employees to File Class Action
-----------------------------------------------------
Keoki Kerr, writing for HawaiiNewsNow, reports that a class-action
lawsuit representing hundreds of State Hospital employees will be
filed in the next several weeks, as the acting head of the
troubled hospital announced he plans to retire after two decades
there.
The class-action lawsuit will be filed on behalf of hundreds of
front-line staff at the State Hospital, who work directly with the
mentally ill.
Attorney Michael Green is representing them.
"Every week, there's somebody getting punched or kicked or their
heads are getting slapped into the walls," Mr. Green said. "This
is really bad. It's like One Flew Over the Cuckoo's Nest."
The lawsuit will seek financial damages from the state and changes
in procedures, training and equipment for employees who are
routinely getting attacked by the mentally ill patients at the
hospital.
"I've got people in here that will never work again because of
brain injuries. People that are getting more medication than the
patients ever got in there," Mr. Green said. "The intention now
is to represent all of them and hopefully make a change. And the
state's self- insured. The money can be used for much better
things than lawsuits."
Some state hospital employees spend weeks, months and even longer
on workers compensation because of on-the-job injuries.
"The people I spoke to are all on worker's comp. And there must
be another 25 percent who don't go out because they're told 'If
you go out, you ain't coming back,'" Mr. Green said.
Dr. Scott Miscovich, the Kaneohe private physician who's treated
more than six state hospital employees for on-the-job attacks in
the last year, including four employees who first spoke to Hawaii
News Now in November.
Dr. Miscovich said he hoped the lawsuit will force the state to
screen all injured employees for Post Traumatic Stress Disorder.
"When you're in a work environment where you're assaulted or you
may have the potential to get assaulted every time you go to work,
it has the potential to wear on your psychologically. It affects
their home life, it affects their ability to deal with their
families," Dr. Miscovich said.
Dr. Miscovich said the state should also test state hospital
employees who've been struck in the head for traumatic brain
injuries.
"This may manifest its self as early as the 30s, 40s, 50s in these
people and they may not be aware that it's happening to them after
being hit in the head numerous times," Dr. Miscovich said.
Meanwhile, Bill Elliott, who has been acting administrator at the
hospital since March 2013, announced he will retire from the
hospital after 20 years on Aug. 1.
Mr. Elliott will retire about three weeks after a new
administrator, William May, takes over at the hospital. Mr. May
currently works as superintendent of the Colorado Mental Health
Institute.
Last November, a Hawaii News Now investigation first revealed that
State Hospital employees were suffering an average of one assault
every three days. Employees came forward to complain about
assaults, mismanagement, nepotism and a lack of training and short
staffing at the facility.
The State Senate then convened a special investigation,
subpoenaing documents and witnesses and held numerous hearings so
far this year.
State Health Department officials said they are working to improve
problems at the facility, including upgrading training.
HEALTH MATTERS: Salmonella Outbreak Linked to Chia Powder
---------------------------------------------------------
Centers for Disease Control on June 11 disclosed that as of
June 9, a total of 21 persons infected with the outbreak strains
of Salmonella Newport, Salmonella Hartford, or Salmonella
Oranienburg have been reported from 12 states.
Two ill persons infected with a strain of Salmonella Oranienburg
have been identified in two U.S. states. No deaths have been
reported. Through product testing and interviews with ill people,
these illnesses have been combined with the Salmonella Newport and
Salmonella Hartford infections previously identified as part of
this investigation.
Collaborative investigation efforts of state, local, and federal
public health and regulatory agencies indicate that organic
sprouted chia powder is the likely source of this outbreak. Chia
powder is made from ground dried chia seeds.
On June 4, Health Matters America Inc. recalled products that
contain sprouted chia seed powder and sprouted chia/flax seed
powder due to possible Salmonella contamination. On June 6,
Navitas Naturals expanded their existing recall to include
additional expiration dates of products containing organic
sprouted chia powder.
The Public Health Agency of Canada continues to investigate
similar cases of Salmonella infection in several Canadian
provinces. Several Canadian companies have recalled products
containing sprouted chia powder or chia seeds.
CDC recommends that consumers do not eat any of the recalled
products containing chia. These products have a long shelf-life
and may still be in people's homes. The recalled products were
available for purchase in many retail stores nationwide and
online.
HULU: Judge Tosses Video Privacy Class Action
---------------------------------------------
Julia Love, writing for The Recorder, reports that with eye-
popping damages at stake, a federal judge has refused to allow
plaintiffs to move forward as a class with claims that Hulu
violated their privacy by sharing the videos they viewed.
In a 38-page order issued on June 17, U.S. Magistrate Judge Laurel
Beeler dismissed without prejudice plaintiffs' motion to certify a
class of Hulu users. Plaintiffs filed their claims under the
Video Privacy Protection Act, a 1980s law that provides for
statutory damages of $2,500 per violation. Hulu had warned the
court that it might have to pay billions in damages if a class
were certified.
Without a detailed proposal for verification from the plaintiffs,
Beeler concluded that she would likely have to rely on self-
reporting to determine who belonged in the class. She insisted
that class members should be subjected to greater scrutiny before
cashing in on such a large award.
"The claims apparently are not amenable to ready verification,"
she wrote. "And at $2,500 per class member, they are not small."
Beeler seconded Hulu's concerns that the handsome damages at stake
could entice Hulu users to try to join the class, regardless of
whether their privacy had been violated.
"That incentive and the vagaries of subjective recollection make
this case different than the small-ticket consumer protection
class actions that this district certifies routinely," she wrote.
Hulu lawyer Robert Schwartz of O'Melveny & Myers declined to
comment on the order, and a spokesman for the video-streaming site
did not respond to a request for comment. Plaintiffs lawyer Scott
Kamber of New York's KamberLaw said plaintiffs still hope to
proceed as a class.
"Plaintiffs appreciate Judge Beeler's thoughtful opinion, which we
are continuing to review in detail," he said. "We have every
intention of taking any additional discovery that may be necessary
and following the decision in order to renew our motion for class
certification."
Plaintiffs in In re Hulu Privacy Litigation, 11-3764, claimed that
Hulu trampled their right to privacy by sharing the titles of
videos they viewed on the site with Facebook and data analytics
firm comScore. The VPPA was enacted by Congress in 1988 after a
newspaper published a list of videos rented by U.S. Supreme Court
nominee Robert Bork.
Ruling on Hulu's motion for summary judgment in April, Judge
Beeler found that Hulu was not liable for sharing information with
comScore but refused let the company off the hook for information
it shared with Facebook.
Hulu installed a Facebook "like" button on its video pages in
2010. But even if a user didn't click on the button, Hulu sent
the title of the video and other information back to the social
networking company, according to plaintiffs.
Judge Beeler noted that many people block or delete cookies,
meaning the court would have to launch a complex inquiry to
determine which Hulu users had actually been harmed.
"Objective criteria . . . are important to establishing class
membership as opposed to relying only on potential members' say so
and subjective memories that may be imperfect," Judge Beeler
wrote. Subclasses might address the issue, but plaintiffs had not
proposed any tools for narrowing down the pool, she added.
Plaintiffs limited their potential damages haul somewhat by
seeking just one violation per class member. Still, Hulu argued
that it could invoke the due process clause if the court found it
must pay billions for sharing viewers' information. The concern
seemed to resonate with Judge Beeler.
"That award is wildly disproportionate to any adverse effects
class members suffered, and it shocks the conscience," Judge
Beeler wrote.
JOE ARPAIO: Faces Another Suit Over Arrest of Immigrant Workers
---------------------------------------------------------------
Two Arizona laws unconstitutionally allow Sheriff Joe Arpaio's
deputies to raid businesses to arrest immigrant workers using fake
IDs to work, a class action claims in Federal Court, reports Jamie
Ross, writing for Courthouse News Service.
Three named plaintiffs and Puente Arizona, a human rights group,
sued Arpaio, Maricopa County Attorney Bill Montgomery, Maricopa
County, and Robert Halliday, director of the Arizona Department of
Public Safety.
"This action challenges two state laws, Arizona House Bill 2779
('H.B. 2779'), passed in 2007, and Arizona House Bill 2745 ('H.B.
2745'), passed in 2008, which sought, in relevant part, to
criminally punish individuals who do not have federal
authorization to work in the United States for the act of securing
employment. Both measures were promulgated as part of a broader
platform favored by Arizona nativists to make life so difficult
for immigrants coming from Mexico and Latin America that they
would 'self-deport,'" the 35-page lawsuit begins.
"The effect of these measures has been to turn individuals such as
plaintiff Sara Cervantes Arreola -- who worked for years at a
grocery store on Phoenix's west side to support her young son --
into convicted felons. Ms. Cervantes Arreola was arrested at work
in January 2013 for using identifying information of a fictitious
person, something she needed to do in order to get the job.
"Arizona entered uncharted territory as a state when it revised
its identity theft laws to achieve this aim. Specifically, H.B.
2779, also called the 'Legal Arizona Workers Act,' created a new
offense of aggravated identity theft to use the information of
'another person, including a real or fictitious person, with the
intent to obtain employment.' A.R.S. Section 13-2009(A)(3). H.B.
2745 supplemented the Legal Arizona Workers Act by defining the
offense of identity theft to include use of another's information,
real or fictitious, 'with the intent to obtain or continue
employment.' Section 13- 2008(A)."
Arpaio has used those laws for six years "to carry out a campaign
of workplace raids targeting undocumented immigrants," the
complaint states. The raids have "separated breadwinners from
their families, suppressed workers' rights, eroded the social
fabric of the community, and ultimately harmed many U.S. citizens
as well as immigrants."
The plaintiffs claim Arpaio's raid improperly divert taxpayers'
funds from essential public safety and services to prosecute
workers. They add: "Arizona's effort to single out employment by
undocumented workers intrudes upon an area of exclusive federal
control. The worker identity provisions interfere and conflict
with federal laws established by Congress and implemented by the
executive branch regulating immigration and employment, and thus
violate the Supremacy Clause. They also discriminate on the basis
of alienage in violation of the Fourteenth Amendment of the U.S.
Constitution."
Cervantes Arreola was arrested and convicted of felony aggravated
identity theft for using fake identification to get a job at a
grocery store.
"Cervantes feels as if her felony conviction has marked her life
forever. She believes that people in her community now look at
her differently," the complaint states. "She worries that the
conviction will negatively impact her in the event she is ever
stopped or detained by police in the future, and may impact her
chances for future immigration relief."
Cervantes is joined by Guadalupe Arredondo -- who was convicted of
felony identity theft after she was arrested while working at a
paper factory -- and Susan Frederick-Gray, as individual
plaintiffs.
Frederick-Gray is the lead minister of the Unitarian Universalist
Congregation of Phoenix, and "is challenging the enforcement of
these statutes as an illegal expenditure of county taxpayer
funds."
"Maricopa County is the only jurisdiction systematically enforcing
these tools given to it by the state Legislature," said Dan
Pochoda, legal director of the ACLU of Arizona and co-counsel for
plaintiffs, in a statement. "We know from past experience that
when the MCSO gets into the business of immigration enforcement,
it's a recipe for discrimination and abuse."
A federal judge found in 2013 that the Arpaio's Maricopa County
Sheriff's Office violated the civil rights of Latinos by racially
profiling them and subjecting them to traffic stops and arrests
without probable cause.
The class seeks a declaration stating that its civil rights were
violated, and an injunction to stop the agencies from enforcing
the state laws. It is represented by Anne Lai of the University
of California-Irvine School of Law Immigrant Rights Clinic.
Arpaio has been sued more than 350 times, often on civil rights
claims, and in class actions, according Courthouse News database.
He is serving his sixth 4-year term as sheriff of Maricopa County,
which includes Phoenix.
KANGADIS FOOD: Files Bankruptcy Petition to Halt Class Action
-------------------------------------------------------------
Sara Randazzo, writing for The Wall Street Journal's Bankruptcy
Beat, reports that a Long Island olive importer is asking a
bankruptcy judge to decide how much it owes customers for
allegedly selling processed olive oil as pure.
Kangadis Food Inc., which is fighting claims that it improperly
marketed a chemically treated olive byproduct as "100% pure olive
oil," recently sought bankruptcy protection in an attempt to put
the brakes on a class-action suit over the alleged mislabeling.
The family-owned company filed for Chapter 11 on June 6 in U.S.
Bankruptcy Court in Central Islip, New York, saying the
approximately $1.4 million in legal fees it has racked up over the
past year and a half have hurt what is otherwise a profitable
business.
The goal of the filing, according to Kangadis Food's bankruptcy
lawyer, is to avoid paying an estimated $750,000 to $1 million
more to defend itself in a class-action suit scheduled to go to
trial in September. Under the Bankruptcy Code, a company can ask
the bankruptcy court to estimate the damages that it would incur
in a civil suit, in lieu of litigating the case to its conclusion.
That estimation is then used to create a creditor-repayment plan
in the bankruptcy.
"The company just couldn't afford it," SilvermanAcampora LLP
partner Adam Rosen told Bankruptcy Beat. Spending more cash on
the trial "would only make us go into bankruptcy later," Mr. Rosen
said, "and at that time it'll be a liquidation."
Plaintiffs' lawyers pushing the class action on behalf of Kangadis
Food customers and the judge overseeing the case are already
opposing the bankruptcy filing.
U.S. District Judge Jed Rakoff in New York ruled that a related
suit against members of the Kangadis family -- who haven't filed
for bankruptcy -- that had been dismissed in April can be refiled
immediately and go to trial in September.
Plaintiffs' lawyer Scott Bursor says that his clients have a
"constitutional right to a jury trial" and that having a
bankruptcy court estimate the damages "is an impossibility."
Mr. Bursor argues Kangadis Food "is neither bankrupt nor
insolvent," pointing to filings listing its assets at roughly
$12.3 million against liabilities of $6.1 million. "The desire of
a solvent and profitable company to avoid the costs of a jury
trial is not a proper ground for a Chapter 11 petition,"
Mr. Bursor wrote.
The pending class action follows another suit brought in February
2013 by North American Olive Oil Association. In the suit, the
trade association alleged that products Kangadis Food sold under
its Capatriti brand labeled as "100% pure olive oil" were actually
made of a byproduct called olive pomace oil.
Kangadis Food settled the trade association suit without admitting
liability. In a recent press release, the company's CEO,
Themas Kangadis, said all of its products "meet all applicable
regulatory standards" and "are randomly tested for quality"
throughout the year.
KEURIG GREEN: "Gray" Suit Consolidated in Single-Serve Coffee MDL
-----------------------------------------------------------------
The purported class action lawsuit captioned Gray, et al. v.
Keurig Green Mountain, Inc., et al., Case No. 3:14-cv-00696, was
transferred from the U.S. District Court for the Southern District
of California to the U.S. District Court for the Southern District
of New York (Foley Square). The New York District Court Clerk
assigned Case No. 1:14-cv-04398-VSB to the proceeding.
The United States Judicial Panel on Multidistrict Litigation
assigned the case to Judge Vernon S. Broderick for coordinated or
consolidated pretrial proceedings in the multidistrict litigation
captioned In re: Keurig Green Mountain Single-Serve Coffee
Antitrust Litigation, MDL No. 1:14-md-02542-VSB, which is
currently pending in the Southern District of New York.
The actions in the litigation primarily involve allegations that
Keurig Green Mountain, Inc., and its predecessors Green Mountain
Coffee Roasters and Keurig Incorporated have engaged in
anticompetitive conduct with respect to the Keurig single-serve
brewer and single-serve coffee packs utilized in the Keurig
brewer.
The Plaintiffs are represented by:
Betsy Carol Manifold, Esq.
Francis M. Gregorek, Esq.
Marisa C. Livesay, Esq.
Rachele R. Rickert, Esq.
WOLF HALDENSTEIN ADLER FREEMAN AND HERZ LLP
750 B Street
Symphony Towers, Suite 2770
San Diego, CA 92101-5050
Telephone: (619) 239-4599
Facsimile: (619) 234-4599
E-mail: manifold@whafh.com
gregorek@whafh.com
livesay@whafh.com
rickert@whafh.com
- and -
Frederick T. Isquith, Esq.
WOLF HALDENSTEIN ADLER FREEMAN AND HERZ LLP
270 Madison Avenue
New York, NY 10016
Telephone: (212) 545-4600
E-mail: isquith@whafh.com
The Defendants are represented by:
George Stephen Cary, Esq.
CLEARY GOTTLIEB STEEN & HAMILTON LLP
2000 Pennsylvania Avenue, NW
Washington, DC 20006
Telephone: (202) 974-1920
Facsimile: (202) 974-1999
E-mail: gcary@cgsh.com
KEURIG GREEN: "Hudson" Suit Included in Single-Serve Coffee MDL
---------------------------------------------------------------
The purported class action lawsuit styled Hudson, et al. v. Keurig
Green Mountain, Inc., et al., Case No. 3:14-cv-00976, was
transferred from the U.S. District Court for the Southern District
of California to the U.S. District Court for the Southern District
of New York (Foley Square). The New York District Court Clerk
assigned Case No. 1:14-cv-04399-VSB to the proceeding.
The United States Judicial Panel on Multidistrict Litigation
assigned the case to Judge Vernon S. Broderick for coordinated or
consolidated pretrial proceedings in the multidistrict litigation
captioned In re: Keurig Green Mountain Single-Serve Coffee
Antitrust Litigation, MDL No. 1:14-md-02542-VSB, which is
currently pending in the Southern District of New York.
The actions in the litigation primarily involve allegations that
Keurig Green Mountain, Inc., and its predecessors Green Mountain
Coffee Roasters and Keurig Incorporated have engaged in
anticompetitive conduct with respect to the Keurig single-serve
brewer and single-serve coffee packs utilized in the Keurig
brewer.
The Plaintiffs are represented by:
Rachele R. Rickert, Esq.
WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP
Symphony Tower
750 B Street, Suite 2770
San Diego, CA 92101
Telephone: (619) 239-4599
Facsimile: (619) 234-4599
E-mail: rickert@whafh.com
- and -
Frederick T. Isquith, Esq.
WOLF HALDENSTEIN ADLER FREEMAN AND HERZ LLP
270 Madison Avenue
New York, NY 10016
Telephone: (212) 545-4600
E-mail: isquith@whafh.com
The Defendants are represented by:
George Stephen Cary, Esq.
CLEARY GOTTLIEB STEEN & HAMILTON LLP
2000 Pennsylvania Avenue, NW
Washington, DC 20006
Telephone: (202) 974-1920
Facsimile: (202) 974-1999
E-mail: gcary@cgsh.com
KEURIG GREEN: "Major" Suit Included in Single-Serve Coffee MDL
--------------------------------------------------------------
The purported class action lawsuit styled Major v. Keurig Green
Mountain Inc., et al., Case No. 1:14-cv-00348, was transferred
from the U.S. District Court for the District of Delaware to the
U.S. District Court for the Southern District of New York (Foley
Square). The New York District Court Clerk assigned Case No.
1:14-cv-04407-VSB to the proceeding.
The United States Judicial Panel on Multidistrict Litigation
assigned the case to Judge Vernon S. Broderick for coordinated or
consolidated pretrial proceedings in the multidistrict litigation
captioned In re: Keurig Green Mountain Single-Serve Coffee
Antitrust Litigation, MDL No. 1:14-md-02542-VSB, which is
currently pending in the Southern District of New York.
The actions in the litigation primarily involve allegations that
Keurig Green Mountain, Inc., and its predecessors Green Mountain
Coffee Roasters and Keurig Incorporated have engaged in
anticompetitive conduct with respect to the Keurig single-serve
brewer and single-serve coffee packs utilized in the Keurig
brewer.
The Plaintiff is represented by:
Jeffrey S. Goddess, Esq.
Jessica Zeldin, Esq.
Peter Bradford deLeeuw, Esq.
ROSENTHAL, MONHAIT & GODDESS, P.A.
Mellon Bank Center, Suite 1401
P.O. Box 1070
919 Market Street
Wilmington, DE 19899-1070
Telephone: (302) 656-4433
Facsimile: (302) 658-7567
E-mail: jgoddess@rmgglaw.com
jzeldin@rmgglaw.com
bdeleeuw@rmgglaw.com
The Defendants are represented by:
Geoffrey Graham Grivner, Esq.
BUCHANAN INGERSOLL & ROONEY P.C.
919 North Market Street, Suite 1500
Wilmington, DE 19801
Telephone: (302) 552-4207
Facsimile: (302) 552-4295
E-mail: geoffrey.grivner@bipc.com
KEURIG GREEN: "Nelson" Suit Included in Single-Serve Coffee MDL
---------------------------------------------------------------
The class action lawsuit styled Nelson v. Keurig Green Mountain,
Inc., et al., Case No. 3:14-cv-01143, was transferred from the
U.S. District Court for the Southern District of California to the
U.S. District Court for the Southern District of New York (Foley
Square). The New York District Court Clerk assigned Case No.
1:14-cv-04403-VSB to the proceeding.
The United States Judicial Panel on Multidistrict Litigation
assigned the case to Judge Vernon S. Broderick for coordinated or
consolidated pretrial proceedings in the multidistrict litigation
captioned In re: Keurig Green Mountain Single-Serve Coffee
Antitrust Litigation, MDL No. 1:14-md-02542-VSB, which is
currently pending in the Southern District of New York.
The actions in the litigation primarily involve allegations that
Keurig Green Mountain, Inc., and its predecessors Green Mountain
Coffee Roasters and Keurig Incorporated have engaged in
anticompetitive conduct with respect to the Keurig single-serve
brewer and single-serve coffee packs utilized in the Keurig
brewer.
The Plaintiff is represented by:
Rachele R. Rickert, Esq.
WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP
Symphony Tower
750 B Street, Suite 2770
San Diego, CA 92101
Telephone: (619) 239-4599
Facsimile: (619) 234-4599
E-mail: rickert@whafh.com
- and -
Frederick T. Isquith, Esq.
WOLF HALDENSTEIN ADLER FREEMAN AND HERZ LLP
270 Madison Avenue
New York, NY 10016
Telephone: (212) 545-4600
E-mail: isquith@whafh.com
The Defendants are represented by:
George Stephen Cary, Esq.
CLEARY GOTTLIEB STEEN & HAMILTON LLP
2000 Pennsylvania Avenue, NW
Washington, DC 20006
Telephone: (202) 974-1920
Facsimile: (202) 974-1999
E-mail: gcary@cgsh.com
KEURIG GREEN: Purchaser Suit Included in Single-Serve Coffee MDL
----------------------------------------------------------------
The consolidated class action lawsuit styled In Re Keurig K-Cup
Indirect Purchaser Antitrust Litigation, Case No. 3:14-cv-00678,
was transferred from the U.S. District Court for the Southern
District of California to the U.S. District Court for the Southern
District of New York (Foley Square). The New York District Court
Clerk assigned Case No. 1:14-cv-04391-VSB to the proceeding.
The United States Judicial Panel on Multidistrict Litigation
assigned the consolidated lawsuit to Judge Vernon S. Broderick for
coordinated or consolidated pretrial proceedings in the
multidistrict litigation captioned In re: Keurig Green Mountain
Single-Serve Coffee Antitrust Litigation, MDL No. 1:14-md-02542-
VSB, which is currently pending in the Southern District of New
York.
The actions in the multidistrict litigation primarily involve
allegations that Keurig Green Mountain, Inc., and its predecessors
Green Mountain Coffee Roasters and Keurig Incorporated have
engaged in anticompetitive conduct with respect to the Keurig
single-serve brewer and single-serve coffee packs utilized in the
Keurig brewer.
The Plaintiffs are represented by:
Betsy Carol Manifold, Esq.
Francis M. Gregorek, Esq.
Marisa C. Livesay, Esq.
Rachele R. Rickert, Esq.
WOLF HALDENSTEIN ADLER FREEMAN AND HERZ LLP
Symphony Towers
750 B Street, Suite 2770
San Diego, CA 92101-5050
Telephone: (619) 239-4599
Facsimile: (619) 234-4599
E-mail: manifold@whafh.com
gregorek@whafh.com
livesay@whafh.com
rickert@whafh.com
- and -
Frederick T. Isquith, Esq.
WOLF HALDENSTEIN ADLER FREEMAN AND HERZ LLP
270 Madison Avenue
New York, NY 10016
Telephone: (212) 545-4600
E-mail: isquith@whafh.com
The Defendants are represented by:
George Stephen Cary, Esq.
CLEARY GOTTLIEB STEEN & HAMILTON LLP
2000 Pennsylvania Avenue, NW
Washington, DC 20006
Telephone: (202) 974-1920
Facsimile: (202) 974-1999
E-mail: gcary@cgsh.com
KEURIG GREEN: "Rehma" Suit Included in Single-Serve Coffee MDL
--------------------------------------------------------------
The purported class action lawsuit titled Rehma, et al. v. Keurig
Green Mountain, Inc., et al., Case No. 3:14-cv-01131, was
transferred from the U.S. District Court for the Southern District
of California to the U.S. District Court for the Southern District
of New York (Foley Square). The New York District Court Clerk
assigned Case No. 1:14-cv-04405-VSB to the proceeding.
The United States Judicial Panel on Multidistrict Litigation
assigned the case to Judge Vernon S. Broderick for coordinated or
consolidated pretrial proceedings in the multidistrict litigation
captioned In re: Keurig Green Mountain Single-Serve Coffee
Antitrust Litigation, MDL No. 1:14-md-02542-VSB, which is
currently pending in the Southern District of New York.
The actions in the litigation primarily involve allegations that
Keurig Green Mountain, Inc., and its predecessors Green Mountain
Coffee Roasters and Keurig Incorporated have engaged in
anticompetitive conduct with respect to the Keurig single-serve
brewer and single-serve coffee packs utilized in the Keurig
brewer.
The Plaintiffs are represented by:
Rachele R. Rickert, Esq.
WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP
Symphony Tower
750 B Street, Suite 2770
San Diego, CA 92101
Telephone: (619) 239-4599
Facsimile: (619) 234-4599
E-mail: rickert@whafh.com
- and -
Frederick T. Isquith, Esq.
WOLF HALDENSTEIN ADLER FREEMAN AND HERZ LLP
270 Madison Avenue
New York, NY 10016
Telephone: (212) 545-4600
E-mail: isquith@whafh.com
The Defendants are represented by:
George Stephen Cary, Esq.
CLEARY GOTTLIEB STEEN & HAMILTON LLP
2000 Pennsylvania Avenue, NW
Washington, DC 20006
Telephone: (202) 974-1920
Facsimile: (202) 974-1999
E-mail: gcary@cgsh.com
KING PHARMACEUTICALS: Sept. 22 Settlement Fairness Hearing Set
--------------------------------------------------------------
The Law Offices of Gordon Ball and Hausfeld LLP on June 11 issued
a statement regarding the Skelaxin Proposed Class Action
Settlement.
What is this about?
Subject to Court Approval, a Settlement has been reached in a
class action lawsuit claiming that King Pharmaceuticals conspired
to prevent and delay generic competition to its brand-name drug,
Skelaxin, resulting in artificially high prices. The lawsuit is
called Jabo's Pharmacy, Inc. v. King Pharmaceuticals, Inc. and is
pending in the Circuit Court for Cocke County, Tennessee.
King denies it did anything wrong, and the Court has not decided
who is right. The Court still has to decide whether to approve
the Settlement. If it does, eligible Class Members may receive
cash benefits.
Who is a Class Member?
You are a Class Member if you operate a business in Tennessee and
indirectly purchased Skelaxin for resale since November 4, 2005.
Purchasing "indirectly" means that you purchased Skelaxin from a
wholesaler or distributor, rather than directly from the
manufacturer. Purchasing "for resale" means that you resold the
Skelaxin you purchased to consumers. Excluded from the Settlement
Class are Defendant's employees, officers, directors, agents, and
representatives.
What are the benefits?
King has agreed to pay $2.4 million in exchange for a release of
claims asserted in this case. Subject to Court approval, the
settlement funds will first be used to pay attorneys' fees,
expenses, and an incentive award. The remaining amount will be
distributed to Class Members who submit valid Claim Forms in
proportion to their relevant purchases of Skelaxin in Tennessee,
up to the amount of damages suffered. Any remaining or unclaimed
funds will be distributed to charitable or not-for-profit
organizations as directed by the Court. If you wish to object,
you must file your objection by August 1, 2014.
How do I receive benefits?
To receive benefits you must submit a Claim Form. File online at
the website below or request one by calling 1-844-491-5742,
contacting us through the website below, or writing to Skelaxin
Settlement Administrator, P.O. Box 550, Philadelphia, PA 19105-
0550. Claim Forms submitted by mail must be postmarked on or by
September 15, 2014.
What are my rights?
Submit a claim -- to receive benefits, you must submit a Claim
Form by the deadline. Do nothing -- if you do nothing, you will
not receive benefits. You will be bound by the decisions of the
Court and will not be able to sue King. Exclude yourself -- if
you exclude yourself, you will not receive benefits, but you can
pursue a lawsuit against King on your own. The exclusion deadline
is August 1, 2014. Complete details of your rights and how to
exclude yourself are found on the website.
The Court has scheduled a hearing to determine the fairness of the
Settlement, attorneys' fees and expenses, and an incentive award.
The motion for attorneys' fees and expenses and an incentive award
will be filed by July 17, 2014 and will be posted on the website
below. The Hearing will be held on September 22, 2014 at 9:00
a.m., in the Circuit Court for Cocke County, Tennessee at 111
Court Avenue, Newport, Tennessee. You may appear at the Hearing,
but you don't have to. Payments to valid Claimants will be made
only after the Court approves the Settlement and after any appeals
are resolved, which may take time.
This is only a summary. Visit the website
www.SkelaxinTennesseeSettlement.com for more detailed information.
KRAFT: Recalls Velveeta Cheese Over Food Borne Illness Risk
-----------------------------------------------------------
Samantha Bomkamp, writing for Chicago Tribune, reports that Kraft
is recalling a batch of Velveeta cheese shipped to Walmart in the
Midwest because it doesn't contain enough of a specific
preservative and can spoil too fast, potentially causing a food
borne illness.
The cheese product was shipped to three Walmart distribution
centers and may have been redistributed to stores in as many as 12
states, including Illinois. The recall includes one batch made on
a single manufacturing line over a few hours of production.
The recalled product is in 32-ounce containers. They will have a
"Best Used By" date of Dec. 17, 2014 and consumer package code
between 09:34 and 13:15 next to the date.
Consumers who have bought the product should return them to the
store for a full refund, or call Kraft Foods Consumer Relations at
(800) 310-3704 between 8:00 a.m. and 5:00 p.m. Central time.
This recall affects one batch of product made on one manufacturing
line during a few hours of production. The product was shipped to
three Walmart distribution centers and may have been redistributed
to stores in up to 12 Midwest states.
The affected products may have been shipped to Walmart stores in
Colorado, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota,
Nebraska, North Dakota, Ohio, South Dakota and Wisconsin. These
products were not shipped outside of the U.S.
LAKEVIEW LOAN: Violates Fair Debt Collection Act, Class Claims
--------------------------------------------------------------
Mica M. Morgan and Gerald M. Vaiden, on behalf of themselves and
all others similarly situated v. Lakeview Loan Servicing, LLC and
McCabe Weisberg & Conway, LLC, Case No. 3:14-cv-00444-REP (E.D.
Va., June 19, 2014), alleges that the Defendants violated the Fair
Debt Collection Practices Act.
The Plaintiffs are represented by:
James Wilson Speer, Esq.
VIRGINIA POVERTY LAW CENTER
700 E Franklin St., Suite 14T1
Richmond, VA 23219
Telephone: (804) 782-9430
E-mail: jay@vplc.org
- and -
Andrew Joseph Guzzo, Esq.
Kristi Cahoon Kelly, Esq.
KELLY & CRANDALL PLC
4084 University Drive, Suite 202A
Fairfax, VA 22030
Telephone: (703) 424-7576
Facsimile: (703) 591-0167
E-mail: aguzzo@kellyandcrandall.com
kkelly@kellyandcrandall.com
- and -
Leonard Anthony Bennett, Esq.
Susan Mary Rotkis, Esq.
CONSUMER LITIGATION ASSOCIATES
763 J Clyde Morris Boulevard, Suite 1A
Newport News, VA 23601
Telephone: (757) 930-3660
Facsimile: (757) 930-3662
E-mail: lenbennett@clalegal.com
srotkis@clalegal.com
LOS ANGELES CLIPPERS: Interns File Wage Class Action in California
------------------------------------------------------------------
Aaron Vehling, Karlee Weinmann and Kat Greene, writing for Law360,
report that a former employee of the Los Angeles Clippers on
June 10 hit the basketball team with a proposed wage-and-hour
class action in California federal court, accusing the Clippers
and beleaguered owner Donald Sterling of misclassifying him and
others as unpaid interns as part of a pattern to illegally reduce
labor costs.
Named plaintiff Frank Cooper, a former fan relations staffer,
filed suit on behalf of himself and all similarly situated,
accusing the Clippers and Sterling's family trust, which
technically owns the team, of violating the Fair Labor Standards
Act and California Labor Law by requiring interns to perform the
work of paid employees without compensation.
"Plaintiff's unpaid work for defendants is part of a broader trend
where employees are being misclassified as unpaid 'interns' in an
effort by employers to avoid paying wages as required by state
laws and FLSA," the lawsuit says. "These programs purport to be
training programs, but provide little value to the worker while
enriching the employer through the provision of free labor."
Mr. Cooper seeks certification of FLSA and California Labor Law
subclasses of interns who were unpaid for their work from
Sept. 28, 2012, through the present, according to the suit. He
seeks unpaid minimum wages, damages, restitution and an accounting
of the Clippers' records for the liability period, among other
things.
Maurice Pianko of the Pianko Law Group, one of the firms
representing Mr. Cooper, told Law360 in a statement on June 11
that the "lure of working with a popular brand such as the
Clippers draws many young people in, in the hopes of finding a
job, but they're ultimately utilized in a way that's illegal and
unfair, and unfortunately, ultimately their work is beneficial to
the corporation, but not to the intern."
Mr. Cooper, who now lives in Houston, Texas, worked for the
Clippers just shy of two months in 2012, during which he was a fan
relations intern. He organized basketball clinics for fans and
camps for children, supervised autograph sessions with players and
performed office work such as distributing gifts and prizes and
mailing season tickets, among other similar tasks, according to
the suit. All of these tasks were similar to those paid employees
performed, according to the suit.
He and other interns did not have a set schedule, but they worked
between 40 and 50 hours a week, the suit says. Although the front
office considered their positions as part of a vocational training
program and as a result did not pay them, Cooper and others were
actually performing tasks recognized as actual work under federal
and state labor laws, the suit says.
Mr. Cooper said in the suit that without his and others'
contributions to the organization, the team would have had to hire
additional employees or require current staff to work additional
hours.
"The employer cannot derive any immediate advantage from the
intern's work or require the intern to do the work of regular
employees," the suit says. "Defendants' failure to pay interns
for years runs afoul of basic wage-and-hour laws."
Mr. Cooper's suit arrives at a time when Mr. Sterling, whom the
National Basketball Association banned for life for racist remarks
he made that were recorded, has renewed his push to sue the NBA
for $1 billion on antitrust claims less than a week after he
agreed to approve his wife Shelly's plan to sell the franchise to
former Microsoft Corp. CEO Steve Ballmer. The transaction was a
compromise after the NBA made clear it would try to force a
Clippers sale. In response to Mr. Sterling's suit revival, Shelly
has sought emergency measures to preserve the sale.
On top of that litigation, this is not the first employment-
related suit the team has faced recently. On June 2, a former
assistant to Donald Sterling said her former boss withheld pay and
eventually fired her when she refused to perform sex acts and
complained about racist remarks he made about her children.
Mr. Cooper is represented by Nicholas Ranallo of Nicholas Ranallo
Law Offices and Maurice Pianko of the Pianko Law Group PLLC.
The case is Frank Cooper v. LAC Basketball Club Inc. and The
Sterling Family Trust, case number 2:14-cv-04445, in the U.S.
District Court for the Central District of California.
LOWE'S: Settles Installers' Class Action for $6.5 Million
---------------------------------------------------------
Jenna Reed, writing for glassBYTEs.com, reports that Lowe's
management recently agreed to pay $6.5 million to settle a
California class action complaint in which former independent
contractors installing garage doors allege they were treated like
company employees without the benefits, violating state labor law.
The settlement could have implications for the AGRR industry, as
many collision repair shops outsource automotive glass
installation work to independent sub-contractors.
The legal dispute began when two former contractors -- Ronald
Shephard and Henry Romines -- filed a complaint alleging Lowe's
violated California labor law to install garage doors.
Mr. Romines later voluntarily dismissed claims; however, Shephard
continued on with his attorneys arguing in favor of class action
status. The court certified a class of: "All persons who
installed products for Lowe's or performed services for Lowe's in
the State of California and who were treated as independent
contractors by Lowe's but over whom Lowe's exercised control and
discretion in the performance of their installation services."
Lowe's attorneys continued to argue against class action status
and the court set a hearing date of September 19, 2014.
"Specifically, plaintiffs assert that Lowe's had the right to
control, and in fact did control all aspects of installation
services performed by Shephard and all other Type 1 and general
contractor installers," according to the settlement for
preliminary approval proposed to the U.S Northern District Court
of California, Oakland division.
"Plaintiffs further allege that Lowe's misclassification of the
installers caused harm not only to the installers who did not
receive the benefits attendant with being treated as employees,
but also resulted in harm to the installation companies that
contracted with Lowe's," the attorneys allege in the documents.
In discussing the proposed settlement, Shephard's attorneys write,
"Shephard determined that if this action proceeded to trial and if
Shephard prevailed on all of his claims, the maximum amount
recoverable for the class would have been approximately $33
million. Shephard submits that a recovery of $6.5 million, or
approximately 20 percent of the recoverable damages, is an
eminently fair and reasonable recovery."
Approximately 4,029 individual installers and 949 installation
companies are eligible to receive payment from the proposed
settlement.
"The maximum settlement amount equates to about $1,613.30 per
settlement class member," according to court documents.
The class action complaint was originally filed on June 15, 2012.
The certified class period runs from 2008 to the present.
While pre-trial discovery occurred, the parties entered private
alternative dispute resolution.
"Plaintiffs believe that their claims are meritorious and that, at
trial, they could prove that Lowe's misclassified Shephard and all
other installers because Lowe's had the right to control the
performance of the installers' work and other secondary indicia of
an employment relationship are present. Moreover, this conduct
harmed MGDI and all other installation companies," plaintiffs'
attorneys claim.
"[H]owever, despite plaintiffs' confidence in the merits of their
claims, they recognize that an outcome in their favor is far from
a certainty. . . . Plaintiffs recognize that Lowe's would assert
strong factual and legal defenses to the claims alleged herein and
that plaintiffs and the class prevailing in this action was far
from certain. Lowe's asserted that each installation company
operated their own separate business, hired their own employees,
paid their employees' wages and benefits and made all decisions
relating to employment matters and issues relating to their
employees so they could not possibly be deemed employees of
Lowe's. . . . Therefore, plaintiffs' submit that the proposed
settlement is in the best interests of the settlement class
members because it provides a certain favorable outcome,"
attorneys explain.
MEDTRONIC INC: Sued for Misrepresenting Bone-Graft Device
---------------------------------------------------------
Jef Feeley, writing for Bloomberg News, reports that Medtronic
Inc., one of the world's largest medical-device makers, was sued
by Humana Inc. for allegedly marketing its Infuse bone-graft
product for uses that weren't approved by regulators and duping
the insurer into covering those claims.
Medtronic paid doctors hundreds of millions of dollars to tout the
safety and effectiveness of the Infuse product for a variety of
spinal surgeries even though the U.S. Food and Drug Administration
had limited its use to lower-back procedures, Humana said in a
complaint filed May 30 in federal court in Tennessee.
The suit comes less than a month after Minneapolis-based Medtronic
agreed to pay $22 million to settle 950 lawsuits over the
bone-graft system and said it was taking a charge of as much as
$140 million to cover litigation costs linked to the product.
Medtronic officials "misrepresented the safety, efficacy and
necessity of Infuse through fraudulent studies and peer-reviewed
publications," Humana's attorneys said. "Humana justifiably
relied on the misrepresentations" in paying claims on the product.
Medtronic called Humana's claims "baseless," saying the company
listed health risks linked to Infuse on the product's label since
it went on sale in the U.S. in 2002.
$900 Million
"Medtronic does not compensate physicians for the use or
endorsement of our products, and disagrees with any suggestion to
the contrary," Eric Epperson, a company spokesman, said in an
e-mailed statement.
Medtronic generated about $900 million in Infuse sales in 2011
alone, according to Louisville, Kentucky-based Humana's complaint.
"The vast majority" of Infuse sales were for unapproved, or off-
label uses, according to the complaint.
The product accounted for $471 million in sales in fiscal year
2014, according to a company earnings report.
Studies have shown that Infuse, which helps help bones heal after
spinal surgery, has been found to pose an increased risk of cancer
along with infections and male sterility. FDA officials warned
surgeons not to use the product in cervical-spine procedures in
July 2008 after learning of complications in dozens of patients.
In 2012, a U.S. Senate committee found Medtronic officials paid
doctors who marketed Infuse to their colleagues in speeches or
articles more than $200 million in consulting fees and royalties.
Senate investigators also determined that company officials
ghost-wrote sections of medical papers touting the product.
Medtronic agreed last week to pay $9.9 million to settle U.S.
government claims that it paid doctors kickbacks to implant its
heart-rhythm devices such as defibrillators and pacemakers.
The case is Humana Inc. (HUM) v. Medtronic Sofamor Danek USA Inc.,
14-cv-02405, U.S. District Court, Western District of Tennessee.
MERCK & CO: Judge Tosses Bellwether Case in Fosamax Litigation
--------------------------------------------------------------
Charles Toutant, writing for New Jersey Law Journal, reports that
a federal judge in New Jersey has dismissed on summary judgment a
bellwether case against Merck & Co. in the mass litigation over
Fosamax, an osteoporosis treatment that can lead to femur
fractures.
U.S. District Judge Joel Pisano on June 17 found that plaintiff
Barbara Gaynor's claims fail because she took the drug after Merck
revised its labeling in 2010 to fully convey the potential for
fractures, and she did not set forth sufficient evidence that
Merck did not give her doctor adequate notice.
Merck suggested Mrs. Gaynor's case for trial as representative of
the interests of plaintiffs in the multidistrict litigation who
attribute fractured femurs to use of the drug after the label
change.
Plaintiff counsel resisted, citing incomplete discovery, which
prompted Merck's motion for summary judgment.
The ruling comes a year after a defense verdict in another Fosamax
suit, brought by a user of the drug before the labeling change.
Following that decision, in Glynn v. Merck, Judge Pisano dismissed
roughly 650 similar cases.
Another 215 cases pending in the MDL were brought by users of the
drug after the label change.
Plaintiff counsel Paul Pennock of Weitz & Luxenberg in New York
said he expects Pisano to issue an order to show cause why those
cases should not be dismissed in light of the Gaynor ruling.
Mrs. Gaynor, of Hicksville, N.Y., took Fosamax from 1996 until she
fractured her right femur in September 2011. She claimed her
long-term use of the drug made the relabeling immaterial, saying,
"Merck has submitted no evidence that Mrs. Gaynor's use of Fosamax
in 2011 was a substantial factor in causing her femur fracture."
Judge Pisano said that argument confused the proper analysis of a
failure-to-warn claim by expecting that Merck first prove that no
issue of fact concerning proximate cause existed.
Judge Pisano called Gaynor's contention that Merck should be
liable for failing to warn of Fosamax's dangers in the late 1990s
and the early 2000s "baffling," because he had ruled in Glynn that
such claims are preempted. Merck maintained that it had sought
Food & Drug Administration approval of a stronger warning but it
was rejected.
Judge Pisano said Gaynor "re-characterized" her suit's claim that
Merck's warnings about the side effects of Fosamax were inadequate
when she later contended that the court should not decide that
claim because it was not a proximate cause of her injury. He said
she "cannot have it both ways."
Her lawyer, Mr. Pennock, said the decision was "clearly wrong"
because her fractured femur was "a fait accompli" by the time
Merck changed the label.
Merck spokeswoman Lainie Keller said on June 18: "We are pleased
with the court's ruling that the updates to the Fosamax label in
2011 were adequate as a matter of law and that Merck adequately
communicated those changes to others. The company provided
appropriate and timely information about Fosamax to consumers and
to the medical, scientific and regulatory communities. We remain
confident in the efficacy and safety profile of Fosamax and will
continue to always act in the best interest of patients."
Merck's lawyers are from Venable in Baltimore, King & Spalding in
Atlanta, Skadden, Arps, Slate, Meagher & Flom in Washington, D.C.,
and Fox Rothschild in Lawrenceville, N.J.
An appeal of the Glynn ruling on preemption is pending before the
U.S. Court of Appeals for the Third Circuit.
All told, Merck has been named in 4,430 suits claiming Fosamax
caused femur fractures. Of those, 2,785 are in state court in New
Jersey, pending before Superior Court Judge Carol Higbee. Another
525 femur cases were filed in state court in California, and 1,120
went to the MDL.
The company also was named in about 1,150 suits claiming that
Fosamax caused necrosis of the jawbone, most of which have
settled.
MIDLAND CREDIT: Accused of Violating Fair Debt Collection Act
-------------------------------------------------------------
Paul A. Hnatow, an individual, on behalf of himself and all others
similarly situated v. Midland Credit Management, Inc., Midland
Funding, LLC, a delaware limited liability company, and John and
Jane Does Numbers 1 through 25, Case No. 5:14-cv-03784-EGS (E.D.
Pa., June 19, 2014), alleges violations of the Fair Debt
Collection Practices Act.
The Plaintiffs is represented by:
Amy L. Bennecoff, Esq.
KIMMEL & SILVERMAN, P.C.
30 East Butler Pike
Ambler, PA 19002
Telephone: (215) 540-8888
E-mail: abennecoff@lemonlaw.com
NAT'L COLLEGIATE: "Jenkins" Suit Joined in Grant-In-Aid Cap MDL
---------------------------------------------------------------
The class action lawsuit titled Jenkins, et al. v. National
Collegiate Athletic Association, et al., Case No. 3:14-cv-01678,
was transferred from the U.S. District Court for the District of
New Jersey to the U.S. District Court for the Northern District of
California (Oakland). The California District Court Clerk
assigned Case No. 4:14-cv-02758-CW to the proceeding.
The United States Judicial Panel on Multidistrict Litigation
assigned the lawsuit to the Honorable Claudia Wilken for
coordinated or consolidated pretrial proceedings in the
multidistrict litigation known as In Re: National Collegiate
Athletic Association Athletic Grant-In-Aid Cap Antitrust
Litigation, MDL No. 2541.
The antitrust litigation challenges to the National Collegiate
Athletic Association's bylaws that limit athletic grants-in-aid
(also known as athletic scholarships) to tuition and fees, room
and board, and required course-related books.
The Plaintiffs are represented by:
James S. Richter, Esq.
Melissa Steedle Bogad, Esq.
WINSTON & STRAWN LLP
The Legal Center
One Riverfront Plaza, Suite 730
Newark, NJ 07102
Telephone: (973) 848-7676
Facsimile: (973) 848-7650
E-mail: jrichter@winston.com
mbogad@winston.com
- and -
Jeffrey L. Kessler, Esq.
David G. Feher, Esq.
David L. Greenspan, Esq.
Timothy M. Nevius, Esq.
Joseph A. Litman, Esq.
WINSTON & STRAWN LLP
200 Park Avenue
New York, NY 10166
Telephone: (212) 294-6700
E-mail: jkessler@winston.com
dfeher@winston.com
dgreenspan@winston.com
tnevius@winston.com
jlitman@winston.com
Defendant National Collegiate Athletic Association is represented
by:
Anthony Joseph Dreyer, Esq.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
4 Times Square
New York, NY 10036
Telephone: (212) 735-3000
Facsimile: (212) 735-2000
E-mail: adreyer@skadden.com
Defendant Atlantic Coast Conference is represented by:
Duvol M. Thompson, Esq.
Sean C. Sheely, Esq.
HOLLAND & KNIGHT LLP
31 West 52nd Street
New York, NY 10019
Telephone: (212) 513-3200
Facsimile: (212) 385-9010
E-mail: duvol.thompson@hklaw.com
sean.sheely@hklaw.com
Defendant Big 12 Conference is represented by:
Matthew P. O'Malley, Esq.
TOMPKINS MCGUIRE WACHENFELD & BARRY LLP
Four Gateway Center, 5th Floor
100 Mulberry Street
Newark, NJ 07102-4070
Telephone: (973) 622-3000
Facsimile: (973) 623-7780
E-mail: momalley@tompkinsmcguire.com
Defendant Big Ten Conference is represented by:
Michael Martinez, Esq.
MAYER BROWN LLP
1675 Broadway
New York, NY 10019
Telephone: (212) 506-2514
E-mail: michael.martinez@mayerbrown.com
Defendant Pac-12 Conference is represented by:
Joseph C. O'Keefe, Esq.
Lawrence R. Sandak, Esq.
Wanda L. Ellert, Esq.
PROSKAUER ROSE LLP
One Newark Center
Newark, NJ 07102-5211
Telephone: (973) 274-3200
E-mail: jokeefe@proskauer.com
lsandak@proskauer.com
wellert@proskauer.com
Defendant Southeastern Conference is represented by:
John A. Boyle, Esq.
Kevin Harry Marino, Esq.
MARINO TORTORELLA & BOYLE PC
437 Southern Boulevard
Chatham, NJ 07928-1488
Telephone: (973) 824-9300
Facsimile: (973) 824-8425
E-mail: jboyle@khmarino.com
kmarino@khmarino.com
NAT'L COLLEGIATE: "Lauricella" Suit Joined in Grant-In-Aid Cap MDL
------------------------------------------------------------------
The class action lawsuit styled Lauricella v. National Collegiate
Athletic Association, et al., Case No. 2:14-cv-01220, was
transferred from the U.S. District Court for the Eastern District
of Louisiana to the U.S. District Court for the Northern District
of California (Oakland). The California District Court Clerk
assigned Case No. 4:14-cv-02756-CW to the proceeding.
The United States Judicial Panel on Multidistrict Litigation
assigned the lawsuit to the Honorable Claudia Wilken for
coordinated or consolidated pretrial proceedings in the
multidistrict litigation known as In Re: National Collegiate
Athletic Association Athletic Grant-In-Aid Cap Antitrust
Litigation, MDL No. 2541.
The antitrust litigation challenges to the National Collegiate
Athletic Association's bylaws that limit athletic grants-in-aid
(also known as athletic scholarships) to tuition and fees, room
and board, and required course-related books.
The Plaintiff is represented by:
James R. Dugan, II, Esq.
Chad Joseph Primeaux, Esq.
David Baylis Franco, Esq.
THE DUGAN LAW FIRM
365 Canal St., Suite 1000
New Orleans, LA 70130
Telephone: (504) 648-0180
Facsimile: (504) 648-0181
E-mail: jdugan@dugan-lawfirm.com
cprimeaux@dugan-lawfirm.com
dfranco@dugan-lawfirm.com
Defendant Southeastern Conference is represented by:
Robert Evans Harrington, Esq.
ROBINSON BRADSHAW & HINSON, PA
101 N. Tryon St., Suite 1900
Charlotte, NC 28246
Telephone: (704) 377-2536
E-mail: rharrington@rbh.com
NAT'L COLLEGIATE: Defends System Against Antitrust Litigation
-------------------------------------------------------------
Maria Dinzeo at Courthouse News Service reports that as the
antitrust trial over profits from college sports reached its
midpoint on June 18, 2014, NCAA attorneys claimed that student-
athletes would neglect their studies if they are paid for
televised games, and that the money they exact will force
universities to cut funding for less profitable sports.
Rather than raise tuition, which University of South Carolina
President Harris Pastides said would be "unacceptable," the
college would take the money from the budgets for other sports.
"We would look to cutting programs within athletics to make up for
that shortfall, as objectionable and distasteful as that might
be," Pastides said.
Pastides said paying student-athletes a $9.5 million share for
having their names, images and likenesses shown on TV "would be a
very serious challenge," even though the school made $19.7 million
last year from broadcast revenue from football and men's
basketball alone.
Plaintiffs' attorney Michael Hausfeld pointed to a chart showing a
dramatic increase in head football coach Steve Spurrier's salary
from 2006-2013, topping out at $5.5 million last year. Pastides
disputed that amount, saying he believed Spurrier makes $4
million.
The NCAA has been sued by a class of college football and men's
basketball players led by former UCLA basketball player Ed
O'Bannon. The student athletes seek a share in the revenues from
television broadcasts.
In testifying before U.S. District Judge Claudia Wilken, Pastides
said paid student-athletes would be nothing short of disastrous
for students and sports alike.
"It would create a new and unique relationship for a small
minority of students that would be viewed as apart from the
student body and a part from the university. It would create a
wedge between those student athletes who receive the funds and
those who don't," Pastides said. "It would offer them a license
to not follow the rules of the university and encourage them to
have one foot in some prof world and diminish the intrinsic value
of them receiving a great education and graduating."
Pastides added: "It would render the student athletes who don't
receive these monetary awards as second-class citizens. They
would feel worse about themselves and their relationships with
players that do receive payments. There would be an increased
gulf between them."
Under cross-examination from Hausfeld, Pastides said he supports
some kind of increased compensation for college athletes but
added: "It's completely a matter of degree." What Pastides would
like to see, he said, is a bigger financial aid package for
players.
Stanford athletic director Bernard Muir echoed Pastides' comments,
saying students would turn their focus away from academics.
"If we go down that path to paying for name, image and likeness,
that takes away from why our students are there, for the
education. The focus could be on driving resources in that regard
and that would concern me," Muir said.
NAT'L COLLEGIATE: President to Testify in O'Bannon Trial
--------------------------------------------------------
The Associated Press reports that NCAA President Mark Emmert was
set to take the stand to defend his organization in a landmark
antitrust case that could one day lead to players getting paid a
portion of the billions of dollars in television money flowing
into big-time college athletics.
Emmert was scheduled to testify on June 19 in a much anticipated
appearance as the NCAA tries to convince a federal judge that its
system of so-called "amateurism" is not anti-competitive and is
the best model for regulating college sports.
Plaintiffs led by former UCLA basketball star Ed O'Bannon are
seeking an injunction that would allow players to band together
and sell the rights to their names and likenesses in broadcasts.
They envision a system in which players can get money when they
leave college for their play.
NAT'L COLLEGIATE: Electronic Arts EVP Testifies in Likeness Suit
----------------------------------------------------------------
Marisa Kendall, writing for The Recorder, reports that Electronic
Arts Inc.'s chief legal officer took the stand on June 18 in
Oakland federal court, testifying his company's video game
production was stunted by NCAA restrictions on the use of college
athletes' names and likenesses.
Joel Linzner, EA's executive vice president of business and legal
affairs, said his company tried for years to develop college
sports games featuring specific football and men's basketball
players but ran up against the National Collegiate Athletic
Association's blanket prohibition on players licensing and earning
money off their names and likenesses. NCAA executives told
Mr. Linzner that athletes who appeared in EA games would be at
risk of losing their eligibility to play, he said.
"Consumers like having the real players in the simulated sports
that we develop and publish," Mr. Linzner told U.S. District Chief
Judge Claudia Wilken during the second week of the antitrust bench
trial. A class of Division I football and men's basketball
players is fighting for the right to enter into licensing
agreements and collect royalties based on the use of their names
and likenesses.
Lead plaintiffs attorney Michael Hausfeld of the Washington, D.C.-
based Hausfeld firm said after court on June 18 that Mr. Linzner's
testimony is crucial because it shows there is a market for that
information.
The most common request EA consumers made of the company's college
games was to include the real athletes, as it does for its
professional sports games, Mr. Linzner testified. EA values
producing realistic sports games, and abides by the slogan, "if
it's in the game, it's in the game," he said.
Mr. Linzner and his team met multiple times with NCAA executives
in an attempt to convince them to change their rules. In a report
produced for one such meeting, EA executives listed those rules as
the No. 1 factor holding back their company's video game growth.
After more than a decade of consistent releases, EA discontinued
its college basketball game in 2009 and abandoned its college
football game this year. Mr. Linzner said the company still would
be interested in relaunching the games and obtaining licensing for
the players' avatars once this litigation comes to a close.
Talking to reporters outside the courthouse, NCAA spokesman
Bob Williams said Mr. Linzner's testimony affirms the NCAA's
position that its rules never wavered, even under pressure from EA
to make an exception. "The NCAA and its membership refused," he
said. "That's very, very clear."
Plaintiffs attorneys have questioned the NCAA's commitment to
rules prohibiting the payment of student athletes. Last week, the
NCAA settled a similar suit, agreeing to pay $20 million to
current and former student athletes who claim they were depicted
in NCAA-licensed video games without their consent. The NCAA
claimed the settlement did not amount to paying athletes for their
performance, but plaintiffs attorneys disagreed.
Last year, plaintiffs also settled claims against EA and the
Collegiate Licensing Company for $40 million. Plaintiffs had
accused EA of misappropriating student athletes as avatars in its
games, something EA maintains it did not do.
NCAA attorney Glenn Pomerantz -- Glenn.Pomerantz@mto.com -- a
partner with Munger, Tolles & Olson, brought up the point during a
brief cross-examination of Mr. Linzner.
"Our view was that we did not use the name, face, or likeness of
any athlete, but there's lots of plaintiffs lawyers here who
claimed otherwise," Mr. Linzner said.
While Hausfeld handled every witness examination on June 18,
Munger Tolles cycled through a roster of litigators, including
Pomerantz, Rohit Singla, Kelly Klaus and Carolyn Hoecker Luedtke.
Due to a scheduling conflict, Mr. Linzner, a plaintiffs' witness,
testified during the defense case. University of Chicago
economist James Heckman, University of South Carolina President
Harris Pastides and Stanford University athletic director Bernard
Muir testified about the ways in which college sports benefit
student athletes.
Mr. Pastides testified his school would be in trouble if
plaintiffs prevail and athletes are allowed to share in
universities' licensing revenue. The University of South Carolina
brings in about $19.7 million a year in royalties from the
broadcast of its football and men's basketball games. If
plaintiffs win, they will take about $9.5 million of that revenue,
he said.
"That would be a very serious challenge," Mr. Pastides said. "We
would look to cutting programs within athletics to make up for
that shortfall."
NATROL INC: "Nowicki" Suit Moved to Glucosamine/Chondroitin MDL
---------------------------------------------------------------
The class action lawsuit titled Nowicki v. Natrol, Inc., Case No.
1:13-cv-03882, was transferred from the U.S. District Court for
the Northern District of Illinois to the U.S. District Court for
the District of Maryland (Baltimore). The District Court Clerk
assigned Case No. 1:14-cv-01870-JFM to the proceeding.
The United States Judicial Panel on Multidistrict Litigation
assigned the lawsuit to the Honorable J. Frederick Motz for
coordinated or consolidated pretrial proceedings in the
multidistrict litigation known as In Re: Natrol, Inc.,
Glucosamine/Chondroitin Marketing and Sales Practices Litigation,
MDL No. 1:14-md-02528-JFM.
The Defendants distribute, market, and sell Natrol Glucosamine
Chondroitin supplements a line of Glucosamine and Chondroitin
based supplements that purportedly provides a variety of health
benefits focused on improving joint health, mobility, flexibility,
and lubrication.
The lawsuit challenges the Defendant's claims as to the efficacy
of the Products.
NOTRE DAME DES NEIGES: Settles Cemetery Class Action for $1.2MM
---------------------------------------------------------------
CTV Montreal reports that hundreds of Montreal families will
finally earn some peace of mind, seven years after a labor dispute
that found them caught between a cemetery and its workers.
A lockout at the Notre Dame des Neiges cemetery in 2007 meant
their loved ones could not be buried as long as four months after
their deaths.
Now, a class action lawsuit with the cemetery has been settled,
though families who led the charge say it's not about the money
it's about respect.
"It was a terrible experience but we had to go through it," said
Paul Caghassi, who helped lead the charge following the death of
his mother.
He and other grieving families formed an association and launched
a class action suit against the cemetery.
Hundreds of bodies were kept in storage as burials were halted.
At one point the cemetery was receiving 50 bodies a week and even
considered using refrigerated food trucks for extra storage.
The Charest government finally stepped in and threatened to send
in an arbitrator if the workers and management couldn't come to an
agreement. The labor dispute was settled. But the class action
case took years.
Mr. Caghassi revealed to CTV Montreal they've won $1.2 million.
"Thirty per cent, or approximately $350,000 will be going back
directly to the families so each family will be able to claim
about $400 maximum," he said.
About $850,000 will be put into a cemetery maintenance fund.
Representatives from the association will sit on the committee.
It wasn't about the money; it was about the hurt, said
Mr. Caghassi.
One more challenge remains: the group of families will mobilize
again to try and persuade the government to make burial an
essential service in Quebec.
PETSMART INC: Wins Prelim. Approval of Labor Suit Settlement
------------------------------------------------------------
The United States District Court for the Northern District of
California granted preliminary approval to a settlement reached in
the labor suit Moore, et al. v. PetSmart, Inc., et al., according
to the company's May 29, 2014, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended May 4,
2014.
In May 2012, the company was named as a defendant in Moore, et al.
v. PetSmart, Inc., et al., a lawsuit originally filed in the
California Superior Court for the County of Alameda. PetSmart
removed the case to the United States District Court for the
Northern District of California. The complaint brings both
individual and class action claims, first alleging that PetSmart
failed to engage in the interactive process and failed to
accommodate the disabilities of four current and former named
associates. The complaint also alleges on behalf of current and
former hourly store associates that PetSmart failed to provide pay
for all hours worked, failed to properly reimburse associates for
business expenses, failed to properly calculate and pay vacation,
failed to provide suitable seating, and failed to provide timely
and uninterrupted meal and rest periods. The lawsuit seeks
compensatory damages, statutory penalties, and other relief,
including attorneys' fees, costs, and injunctive relief. In
January 2014, the parties entered a proposed settlement agreement
to resolve this matter in line with reserves that were established
for this case in the first and second quarters of 2013. The motion
for preliminary approval of the settlement was filed on January
31, 2014. In March 2014, the court heard oral arguments on the
motion for preliminary approval of the proposed settlement. In May
2014, the court approved the motion.
PETSMART INC: Discovery Ongoing in "McKee" FLSA Violations Suit
---------------------------------------------------------------
Discovery is ongoing in the suit McKee, et al. v. PetSmart, Inc.,
according to the company's May 29, 2014, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended May
4, 2014.
In September 2012, a former associate named the company as a
defendant in McKee, et al. v. PetSmart, Inc., which is currently
pending before the United States District Court for the District
of Delaware. The case seeks to assert a Fair Labor Standards Act
collective action on behalf of PetSmart's operations managers
nationwide. The complaint alleges that PetSmart has misclassified
operations managers as exempt and as a result failed to pay them
overtime for hours worked in excess of forty hours per week. The
plaintiffs seek compensatory damages, liquidated damages, and
other relief, including attorneys' fees, costs, and injunctive
relief. The plaintiffs filed a motion for conditional
certification in September 2013, which was granted. The court
conditionally certified a collective action consisting of all
current and former operations managers employed by PetSmart at any
time in the preceding three-year period. Notices were sent to
potential class members in February 2014, and the 60-day period
within which recipients may consent to join the lawsuit closed in
April 2014. Discovery is ongoing.
PETSMART INC: Jerky Treats Suit v. Nestle Purina in Mediation
-------------------------------------------------------------
Mediation discussions are ongoing in a consolidated case against
Nestle Purina PetCare Company on behalf of a nationwide class of
consumers who purchased jerky treats containing duck or chicken
imported from China, according to PetSmart Inc.'s May 29, 2014,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended May 4, 2014.
On December 22, 2012, a customer filed a lawsuit against the
company captioned Matin, et al. v. Nestle Purina PetCare Company,
et al. in the United States District Court for the Northern
District of California. The plaintiff claims he purchased jerky
treats containing duck or chicken imported from China that caused
injury to his pet, and he seeks to assert claims on behalf of a
nationwide class of consumers. The company tendered the claim to
Nestle Purina, and Nestle Purina is currently defending the case
on the company's behalf. In May 2013, the case was transferred to
the Northern District of Illinois and consolidated with another
case involving the same products, Adkins, et al. v. Nestle Purina
PetCare Company, et al. Mediation discussions are ongoing.
PETSMART INC: Certification Sought in "Pace" Suit by Ex-Employee
----------------------------------------------------------------
Certification is being sought in a case filed against PetSmart,
Inc. by a former groomer in California, according to the company's
May 29, 2014, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended May 4, 2014.
On February 20, 2013, a former groomer in California filed a
complaint in the Superior Court of California for the County of
Orange captioned Pace v. PetSmart, Inc. PetSmart removed the case
to the United States District Court for the Central District of
California. The plaintiff seeks to certify a class of all former
PetSmart employees in California since February 20, 2010, who were
not paid all wages owed within 72 hours of their separations. The
plaintiff challenges PetSmart's use of pay cards for separation
payments and seeks waiting time penalties, attorneys' fees, and
other relief. The plaintiff also asserts claims under California's
Private Attorney General Act as well as individual claims for
wrongful termination and disability discrimination. The plaintiff
filed a motion for class certification on January 31, 2014, and a
hearing was held in March 2014.
PROGRESSIVE NORTHERN: Faces "DeCastro" Insurance Suit in Nevada
---------------------------------------------------------------
Desiree DeCastro v. Progressive Northern Insurance Company, Case
No. 2:14-cv-00983-APG-VCF (D. Nev., June 18, 2014) arises from
insurance-related disputes.
The Plaintiff is represented by:
David Birka-White, Esq.
Mindy M. Wong, Esq.
BIRKA-WHITE LAW OFFICES
65 Oak Court
Danville, CA 94526
Telephone: (925) 362-9999
E-mail: dbw@birka-white.com
mwong@birka-white.com
- and -
Ines Olevic-Saleh, Esq.
Jesse M. Sbaih, Esq.
JESSE SBAIH & ASSOCIATES, LTD
170 S. Green Valley Parkway, Suite 280
Henderson, NV 89012
Telephone: (702) 896-2529
Facsimile: (702) 896-0529
E-mail: iolevic@sbaihlaw.com
jsbaih@sbaihlaw.com
QBE FIRST: Faces "Bloom" Suit in Southern District of Florida
-------------------------------------------------------------
Scott H. Bloom and Rebecca A. Bloom, on behalf of themselves and
all others similarly situated v. QBE First Insurance Agency, Inc.,
and QBE Specialty Insurance Company, Case No. 0:14-cv-61398-WJZ
(S.D. Fla., June 18, 2014), arises from insurance-related
disputes.
The Plaintiffs are represented by:
Edward Herbert Zebersky, Esq.
ZEBERSKY & PAYNE, LLP
110 S.E. 6th Street, Suite 2150
Fort Lauderdale, FL 33301
Telephone: (954) 989-6333
Facsimile: (954) 989-7781
E-mail: ezebersky@zpllp.com
- and -
Jeffrey N. Golant, Esq.
LAW OFFICES OF JEFFREY N. GOLANT, P.A.
1000 W McNab Road, Suite 150
Pompano Beach, FL 33069
Telephone: (954) 942-5270
Facsimile: (954) 942-5272
E-mail: Jgolant@aol.com
- and -
Mark S. Fistos, Esq.
Seth Michael Lehrman, Esq.
Steven R. Jaffe, Esq.
FARMER, JAFFE,WEISSING, EDWARDS, FISTOS & LEHRMAN, P.L.
425 N. Andrews Avenue, Suite 2
Fort Lauderdale, FL 33301
Telephone: (954) 524-2820
Facsimile: (954) 524-2822
E-mail: mark@pathtojustice.com
seth@pathtojustice.com
steve@pathtojustice.com
QUALITY SYSTEMS: Faces Securities Lawsuit in California Court
-------------------------------------------------------------
Quality Systems, Inc. is facing a securities lawsuit in the United
States District Court for the Central District of California,
according to the company's May 29, 2014, Form 10-K filing with the
U.S. Securities and Exchange Commission for the fiscal year ended
March 31, 2014.
The company faces risks related to litigation advanced by a former
director and shareholder of ours, a putative class action and a
shareholder derivative claim. On October 7, 2013, a complaint was
filed against the company and certain of the company's officers
and directors in the Superior Court of the State of California for
the County of Orange, captioned Ahmed D. Hussein v. Sheldon Razin,
Steven Plochocki, Quality Systems, Inc. and Does 1-10, inclusive,
No. 30-2013-00679600-CU-NP-CJC, by Ahmed Hussein, a former
director and significant shareholder of ours. The complaint
generally alleges fraud and deceit, constructive fraud, negligent
misrepresentation and breach of fiduciary duty in connection with
statements made to the company's shareholders regarding the
company's financial condition and projected future performance. On
November 19, 2013, a complaint was filed against the Company and
certain of the Company's officers and directors in the United
States District Court for the Central District of California,
captioned Deerfield Beach Police Pension Fund, individually and on
behalf of all others similarly situated, v. Quality Systems, Inc.,
Steven T. Plochocki, Paul A. Holt and Sheldon Razin, No. SACV13-
01818-CJC-JPRx, by the Deerfield Beach Police Pension Fund, a
shareholder of the Company. The complaint is a putative class
action filed on behalf of the shareholders of the Company other
than the defendants. The complaint, which is substantially similar
to the complaint filed by Mr. Hussein, generally alleges that
statements made to the Company's shareholders regarding the
Company's financial condition and projected future performance
were false and misleading in violation of the Exchange Act, and
that the individual defendants are liable for such statements
because they are controlling persons under Section 20(a) of the
Exchange Act. On January 24, 2014, a complaint was filed against
the Company and certain of the Company's officers and current and
former directors in the United States District Court for the
Central District of California, captioned Timothy J. Foss,
derivatively on behalf of himself and all others similarly
situated, vs. Craig A. Barbarosh, George H. Bristol, James C.
Malone, Peter M. Neupert, Morris Panner, D. Russell Pflueger,
Steven T. Plochocki, Sheldon Razin, Lance E. Rosenzweig and
Quality Systems, Inc., No. SACV14-00110-DOC-JPPx, by Timothy J.
Foss, a shareholder of the Company. The complaint arises from the
same allegations related to the complaints filed by Mr. Hussein
and the Deerfield Beach Police Pension Fund and generally alleges
breach of fiduciary duties, abuse of control and gross
mismanagement by the Company's directors, in addition to unjust
enrichment and insider selling by individual directors.
SANDERSON FARMS: 11th Cir. Affirms Dismissal of Labor Suit
----------------------------------------------------------
The United States Court of Appeals for the Eleventh Circuit
affirmed the dismissal of the suit filed by hourly employees that
worked at the Moultrie plant of Sanderson Farms, Inc., according
to the company's May 29, 2014, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended April 30,
2014.
As reported in Item 3 of the Company's Form 10-K for the fiscal
year ended October 31, 2013, and in its Form 10-Q for the quarter
ended January 31, 2014, two of the company's former employees
filed a complaint on February 16, 2012, alleging violations of the
federal and State of Georgia's Racketeer Influenced and Corrupt
Organizations ("RICO") Acts against the company and seven of the
company's current and former employees in the United States
District Court for the Middle District of Georgia. The plaintiffs
contend in their complaint that the Company conspired to knowingly
hire undocumented immigrants at the Moultrie plant to "save
Sanderson millions of dollars in labor costs because illegal
aliens will work for extremely low wages". The action is brought
as a class action lawsuit on behalf of all legally authorized
hourly employees that worked at the Moultrie plant in the four
years before the filing of the case. The plaintiffs are suing for
money damages, injunctive relief and revocation of the company's
license to conduct business in the State of Georgia.
On September 13, 2012, the Court entered an Order granting a
motion to dismiss the Complaint, but provided the plaintiffs an
opportunity to file an Amended Complaint on one of the alleged
violations. After an Amended Complaint was filed by the plaintiffs
on October 5, 2012, the Company filed a motion to dismiss the
Amended Complaint on October 29, 2012. On February 5, 2013, the
Court granted the Company's motion to dismiss and entered an Order
dismissing the Amended Complaint with prejudice. The plaintiffs
filed a notice of appeal with the United States Court of Appeals
for the Eleventh Circuit on February 8, 2013. The Brief for
Plaintiffs-Appellants was filed on March 19, 2013, and the Brief
for Defendants-Appellees was filed on April 22, 2013. The
Plaintiffs-Appellants' Reply Brief was filed May 6, 2013. Oral
argument was held on November 20, 2013. On March 7, 2014, the
United States Court of Appeals for the Eleventh Circuit affirmed
the dismissal of the suit.
SYMANTEC CORP: Judge Dismisses Class Action Over Norton Antivirus
-----------------------------------------------------------------
Marisa Kendall, writing for The Recorder, reports that in a win
for Symantec Corp. and its lawyers at Fenwick & West, a federal
judge has dismissed a putative class action accusing the company
of promoting and selling antivirus software executives knew had
been rendered unreliable by a data breach.
U.S. District Judge Jon Tigar ruled plaintiffs did not provide
enough specific information to back up their claims that the
Mountain View software company engaged in fraudulent business
practices and deceptive advertising. Judge Tigar, who had
dismissed two prior complaints, denied plaintiffs leave to amend
the complaint earlier this month and granted final judgment in
Symantec's favor on June 16.
"Plaintiff responded to each dismissal by advancing essentially
the same legal arguments and alleged no new facts necessary to
state a claim," Judge Tigar wrote. "Plaintiff has given the court
no reason to believe additional facts not heretofore alleged might
be forthcoming in any fifth complaint."
Plaintiffs alleged Symantec was hacked in 2006, potentially
rendering Norton Antivirus and other related software ineffective
and putting customers' personal information at risk. Symantec
executives suspected hackers had stolen their source code soon
after the attack, according to the complaint, but they did not
publicly announce the breach until 2012. An India-based hacking
group, known as the Lords of Dharmaraja, forced executives' hands
by posting the confidential information on Pastebin.com, according
to plaintiffs attorneys with Blood Hurst & O'Reardon in San Diego,
The Coffman Law Firm in Texas and Barnow and Associates in
Chicago. The data pertains to 2006 versions of the software, but
elements remain relevant on June 17, they wrote.
"Significant potential exists for the hackers to use the stolen
source code to discern how to defeat the computer data security
protections built into the now compromised Symantec products,"
plaintiffs attorneys wrote.
Instead of coming clean to consumers about the potential dangers,
Symantec continued its advertising campaigns, making claims such
as, "Symantec and Norton have created the most trusted global
brand for protecting information and identities online," according
to the complaint.
But Judge Tigar handed a win to the Fenwick litigation team, led
by partners Laurence Pulgram -- lpulgram@fenwick.com -- and Tyler
Newby -- tnewby@fenwick.com
The judge faulted the complaint because it failed to specify which
advertisements, if any, named plaintiff Kathleen Haskins relied on
when making her purchases.
"It is plain from the numerous iterations of the complaint in this
action that plaintiff cannot allege that she saw any specific
representation," Judge Tigar wrote.
Attorneys with Fenwick, as well as Blood Hurst, did not
immediately return calls requesting comment.
TEXAS: LULAC Files Class Action Over Deficient Language Programs
----------------------------------------------------------------
The Associated Press reports that a national advocacy group has
filed a class-action, federal civil rights lawsuit against Texas,
alleging that Hispanic English language learners aren't receiving
adequate instruction in high schools across the state.
The League of United Latin American Citizens sued on June 10 in
the Eastern District of Texas. Its complaint named Texas
Education Commissioner Michael Williams as chief defendant.
LULAC argues Texas is violating the Equal Educational
Opportunities Act of 1974. That says no state can deny students
educational opportunities by failing to "take appropriate action
to overcome language barriers that impede equal participation" in
instructional programs.
The suit singles out two San Antonio school districts, but says
similar problems persist in high schools statewide.
It says English language learners "continue to perform abysmally"
thanks to "grossly deficient language programs" in many areas.
TOYOTA MOTOR: Faces "Emerson" Suit Over Defective Rear Doors
------------------------------------------------------------
Annita Emerson, individually and on behalf of all others similarly
situated v. Toyota Motor North America, Inc., and Toyota Motor
Sales, U.S.A., Inc., Case No. 3:14-cv-02842-NC (N.D. Cal.,
June 19, 2014), arises from alleged defect in certain Toyota
vehicles.
According to Top Class Actions, the Plaintiff contends that Toyota
was aware of an alleged problem with the rear power-operated doors
in its sports utility vehicles but continued to sell them to
consumers without disclosing the defect.
The Plaintiff is represented by:
Tina Wolfson, Esq.
Robert Ahdoot, Esq.
AHDOOT & WOLFSON, P.C.
1016 Palm Avenue
West Hollywood, CA 90069
Telephone: (310) 474-9111
Facsimile: (310) 474-8585
E-mail: twolfson@ahdootwolfson.com
rahdoot@ahdootwolfson.com
UNITED STATES: Individual Indian Landowners File Class Action
-------------------------------------------------------------
Timber Lake South Dakota reports that individual Indian
landowners, whose earlier lawsuit seeking compensation for land
taken when the Missouri River was dammed was dismissed, are going
back to court. Their complaint, Casimir LeBeau et al vs. United
States of America, was filed April 14, 2014 in US District Court
in Sioux Falls. The civil class action suit alleges that the
government breached its trust responsibility by failing to provide
adequate compensation to individual land owners when their land
was taken for the Missouri River dams more than 70 years ago.
VIBRAM: September Deadline Set for FiveFingers Claims
-----------------------------------------------------
Lori Tucker, writing for WATE, reports that people who have worn
FiveFingers have until September to make a claim if they had
problems resulting from the running shoes.
Jeff McPherson gave these barefoot running shoes a try for nine
months. As clinic director for Tennessee Orthopaedic Clinics, he
was careful to follow instructions on shoemaker Vibram
FiveFingers' website. It says to "listen to your feet," take it
slow, and "stop if your arches or top of foot hurt." Despite
following those instructions, Mr. McPherson says he still had
problems.
"The more I did it, it didn't feel right," said Mr. McPherson.
Dr. Tracy Pesut of TOC isn't surprised by the class action
lawsuits, three in all, that claim the company falsely advertised
the potential health and fitness benefits of the footwear. She
has treated patients for problems resulting from the shoes.
"I see a lot of plantar fasciitis is probably what I've seen with
those shoes, in the patients I've seen, and the surprising thing
is that's one of the things it's supposed to help with," said
Dr. Pesut.
She says if you want to transition to this shoe from a typical
running shoe, you must change the way you run.
"The problem is people use those shoes inappropriately. Just like
training for anything, it's like starting from scratch, because if
you're a heel striker and you're used to running in normal shoes,
you make the transition to the barefoot running or the minimalist
shoe, then you've got to totally change the way you run," she
said.
Mr. McPherson says he's through with the FiveFingers shoes.
"I went back to tennis shoes, and the pain went away in almost two
weeks," he said.
You may be eligible for just under $100 if you purchased those
shoes and didn't like them.
XANDOYNE PHARMACEUTICALS: Challenges Class Action Fairness Act
--------------------------------------------------------------
Amanda Bronstad, writing for The National Law Journal, reports
that two pharmaceutical drug manufacturers told a federal en banc
appeals panel on June 19 that plaintiffs were trying to circumvent
the U.S. Class Action Fairness Act, which requires that "mass
actions" be tried in federal court, by coordinating dozens of
cases in California state court.
The U.S. Court of Appeals for the Ninth Circuit panel, hearing
arguments in Seattle on an issue of first impression, appeared
reluctant to accept the drugmakers' view, since doing so could
force California's judicial branch or legislators to change the
language of a common court procedure used in mass torts.
But they were quick to defend the purpose of CAFA, which was to
concentrate class actions and other mass litigation in federal
court.
CAFA defines a "mass action" as a civil case in which claims by
100 or more people are "proposed to be tried jointly." CAFA
excludes cases coordinated or consolidated for pretrial purposes.
But that exception didn't apply here, because the plaintiffs
sought to coordinate the cases for "all purposes," according to
the language of their petition, said Jay Lefkowitz --
lefkowitz@kirkland.com -- a partner in the New York office of
Kirkland & Ellis.
"What this request is saying -- the issues we're concerned about
-- go well beyond pretrial," said Mr. Lefkowitz, speaking on
behalf of Xandoyne Pharmaceuticals Inc., maker of the painkillers
Darvon and Darvocet, and Teva Pharmaceuticals USA Inc., which
makes the generic equivalents. "They go through issues that are
necessarily trial issues, like punitive damages."
The petition, filed under California's Code of Civil Procedure, is
part of a Judicial Council Coordinated Proceedings procedure --
the state's version of the federal multidistrict litigation
process.
Plaintiffs attorney Louis Bograd, chief litigation counsel for the
Center for Constitutional Litigation, an appellate law firm in
Washington, told the panel that the defendants' arguments are
based on a "false premise."
"They want this court to believe that a petition for coordination
under California civil procedure code section 404 is a proposal
that the claims of plaintiffs in the coordinated actions be tried
jointly," he said. "It is not."
Messrs. Bograd and Lefkowitz previously took opposing roles in the
U.S. Supreme Court's Pliva v. Mensing case. That 2011 decision,
which expanded protections for generic drug manufacturers from
products-liability lawsuits, obliterated most of the litigation
over Darvon and Darvocet, in which the majority of patients took
generics. Most of the cases were part of a related MDL before
U.S. District Judge Danny Reeves in Frankfort, Ky. Mr. Bograd has
appealed those dismissals to the Sixth Circuit.
The hearing before the Ninth Circuit involved two of about 40
lawsuits filed on behalf of more than 1,500 individuals in
California's state courts alleging they suffered heart
abnormalities after taking the drugs.
On Oct. 23, 2012, the plaintiffs sought to coordinate the
litigation. Teva, citing CAFA's "mass action" provision, removed
its case to federal court on Nov. 20, 2012. On Feb. 20, 2013,
U.S. District Judge Philip Gutierrez remanded that case, which was
brought by 50 individuals. Xanodyne appealed over a similar case.
On Sept. 24, 2013, a panel of three judges on the Ninth Circuit
found that the plaintiffs' petition for coordination didn't
violate CAFA because it wasn't, by its language, a proposal to
have all the cases get tried jointly. In a 2-1 opinion, Circuit
Judge Johnnie Rawlinson wrote that the case differed from the
Seventh Circuit's precedential 2012 decision in In re Abbott
Laboratories Inc. because the plaintiffs were seeking coordination
for pretrial purposes, not consolidation "through trial."
In a dissent, Circuit Judge Ronald Gould, calling Abbott
"persuasive and relevant," said the majority opinion would create
a circuit split.
The appeal invited numerous amicus groups, including the U.S.
Chamber of Commerce and the American Association for Justice.
Several of the 11 judges on the en banc panel asked whether the
petition, by its language, necessarily meant that all the cases
would be tried together. They also raised questions about how
much authority California's coordination judges enjoy, such as
whether their rulings are binding or whether plaintiffs attorneys
could challenge their decisions to hear joint trials.
Circuit Judge Richard Clifton, taking a broader view, asked why
the parties had been fighting for two years over whether the cases
should be in state court or federal court.
"We have a case here with one defendant from California and very
few plaintiffs in California," Mr. Lefkowitz said. "They could
have availed themselves of different state regimes. California
really only provides this one alternative."
Mr. Bograd was blunter: "In the federal MDL, plaintiffs have not
met with a fair deal of success."
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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Canson, Noemi Irene A. Adala, Joy A. Agravante, Valerie Udtuhan,
Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A.
Chapman, Editors.
Copyright 2014. All rights reserved. ISSN 1525-2272.
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