/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/140819.mbx C L A S S A C T I O N R E P O R T E R Tuesday, August 19, 2014, Vol. 16, No. 164 Headlines 19TH STREET FOOD: Removed "Barrett" Class Suit to S.D. Florida ABAXIS INC: Shareholders Counsel Awarded $579,429 in Fees & Costs ABERCROMBIE & FITCH: Faces "Pelz" Class Suit in C.D. California ACURIAN INC: Faces "Lawson" Suit Alleging Violations of TCPA ALPHA MANAGEMENT: October 7 Settlement Claims Filing Deadline Set ALSON AUTO: Removed "Perez" Suit to Southern District of Florida ANHEUSER-BUSCH INBEV: Drivers Seek to Recover Unpaid Overtime APPLE INC: Court Refused to Certify ITunes Double-Billing Class ASSURANT INC: Faces Action Over Lender-Place Insurance Program AVIS BUDGET: Loses Bid to Dismiss Reward Program Class Action BERNARD MADOFF: Dismissal of Trustee's Claims vs. Deals Affirmed BEST BUY: Judge Certifies Investors' Securities Class Action BEYOND BROADWAY: Sued Over Marijuana-Infused Chocolate Bars BLUE SHIELD: Class Not Certified for Failing to Show Commonality CANADA: Court Panel Allows G20 Summit Class Actions to Proceed CHESAPEAKE ENERGY: Omissions Were Not Misleading, 10th Cir. Ruled CLIENT SERVICES: Accused of Violating Fair Debt Collection Act DANIEL C. CONSUEGRA: Sued for Violating Fair Debt Collection Act DOLGENCORP LLC: Removed "Vincino" Suit to Florida District Court DOLLAR TREE: Violates Americans with Disabilities Act, Suit Says DREAMWORKS ANIMATION: Robins Geller Files Class Action in Calif. E-TELEQUOTE & CASUALTY: Faces "Charvat" Class Suit in Florida EBAY INC: Court Refused to Dismiss Suit Over Listing Fee Refunds EL PASO PIPELINE: Dismissal of Unitholders' Suit on Appeal FACEBOOK INC: 25,000 Users Sign on to Privacy Class Action FOCUS RECEIVABLES: Faces Class Suit Alleging Violation of TCPA FORD MOTOR: Tailgate Complaint Must Be Amended Again, Court Ruled GAF BUILDING: Sold Defective Elk Cross Timbers Decking, Suit Says GENERAL MOTORS: Sued Over Antifreeze Leakage in Chevrolet Cruze GENJI LLC: Obtains Initial Approval of "Thio" Suit Settlement GLOBAL MARKETING: Faces "Walsh" Suit in Florida District Court GOOGLE INC: Consumer Advocacy Group Objects to $8.5-Mil. Deal GOOGLE INC: Privacy Suit Complaint Must Be Amended, Court Ruled GREATBANC TRUST: Money Manager Cherry-Picks Trades, Investors Say HARBOR FREIGHT: Accused of Violating Song-Beverly Credit Card Act HEARTLAND AUTOMOTIVE: Sued Over Unsolicited Advertising Calls HENRY MAYO: Removed "Vasserman" Suit to C.D. California HERTZ CORP: Managers Sue in Cal. Over Improperly Paid Bonuses HOECHST CELANESE: Judge Allows Pollution Class Action to Proceed IMPAX LABORATORIES: Sued Over Quality Control at Taiwan Facility IMPERIAL METALS: Faces Class Action Over Mount Polley Tailings JAG INDUSTRIAL: Suit Seeks Damages for Unpaid Overtime Under FLSA JOURNAL COMMUNICATIONS: Being Sold for Too Little, Suit Claims JUDY'S HOMES: Fails to Provide Itemized Wage Reports, Suit Claims KIMBERLY-CLARK: Complaint Over Toilet Paper Must Be Amended LONDON SILVER: Accused of Violating Antitrust Laws in New York LYFT INC: Drivers Must Amend Wage and Hour Complaint, Court Ruled MARK BOLAND: Faces Class Action Over Hepatitis, HIV Tests MARVEL ENTERTAINMENT: Former Intern Files Wage Class Action MEDTRONIC INC: Removed "Hattel" Suit to Tennessee District Court MONSTER BEVERAGE: "Marshall" Suit Transferred to C.D. California MONTEBELLO, CA: Bus Drivers File Class Action Over Meal Breaks MRS BPO: Accused of Violating Fair Debt Collection Act in N.Y. NATIONAL COLLEGIATE: Parties Seek Clarification of Court Order NATIONAL HOCKEY: Court Says Antitrust Immunity Excludes TV Rights NEW YORK CITY, NY: Falsely Arrested Innocent Vendor, Suit Claims NIKON CORP: Settles D600 Class Action Over Sensor Spec Issue OCEAN POWER: Faces Securities Class Actions in New Jersey OKLAHOMA CITY, OK: Nov. 13 Hearing Set for License Class Action PEPCO HOLDINGS: Faces Suit Over Proposed Biz Sale to Exelon PHILADELPHIA, PA: Unconstitutionally Seizes Property, Suit Claims PHILADELPHIA, PA: Property Owners' Class Action Appeal Dismissed PLACE ENTERTAINMENT: Fails to Pay Minimum and OT Wages, Suit Says PRO EXCAVATING: Accused of Failing to Pay Proper Overtime Wages QUAKER OATS: Settles Transfat Labeling Class Action for $1.4MM RECOLOGY INC: Bid to Remand "Coria" Wage and Hour Case Denied RED BULL: Settles False Advertising Class Action for $13 Mil. REGIONS FIN'L: Lower Court to Review Price Impact in Class Action RESTAURANT OPERATOR TWO: Suit Seeks to Recover Unpaid OT Wages REYNOLDS AMERICAN: 8 Tobacco Cases Served v. RJR in Q2 2014 REYNOLDS AMERICAN: 4,800 Engle Progeny Cases Pending at June 30 REYNOLDS AMERICAN: RJR Paid $186MM in 24 Engle Progeny Cases REYNOLDS AMERICAN: 67 Engle Progeny Cases for Trial by June 2015 REYNOLDS AMERICAN: 5 Engle Progeny Cases Tried in 2014 Q2 REYNOLDS AMERICAN: Briefing in W.Va. Appeals Court Now Complete REYNOLDS AMERICAN: Nov. 2014 Trial Set in "Sateriale" Action REYNOLDS AMERICAN: Decision in Philip Morris' Appeal Pending REYNOLDS AMERICAN: August 20 Status Conference in "Turner" Case REYNOLDS AMERICAN: No Activity in "Howard" Suit REYNOLDS AMERICAN: Feb 2015 Status Conference in "Collora" Action REYNOLDS AMERICAN: Feb. 2015 Status Conference in "Black" Action REYNOLDS AMERICAN: "Young" Suit v. American Tobacco Stayed REYNOLDS AMERICAN: "Parsons" Suit v. A C & S Remains Stayed REYNOLDS AMERICAN: No Activity in "Jones" Suit v American Tobacco REYNOLDS AMERICAN: British Columbia Case Being Actively Pursued REYNOLDS AMERICAN: Kansas Appeals Court Affirms Summary Judgment SANIMAX: Warshafsky Teams Up with Liddle & Dublin in Class Action SATINSKY GROUP: Court Reserves Judgment in R699 Car Scheme Suit SCHWAN'S HOME: Must Refund Staff for Using Own Phones, Court Says SHIRE US: Seeks Dismissal of Adderall Antitrust Class Action SPACE EXPLORATION: Faces Class Action in Calif. Over Mass Layoff STATE FARM: "Indiana" Suit Added to Auto Body Shop Antitrust MDL SUBURBAN RADIOLOGIC: Mag. Judge Report Adopted in "Hartley" Suit SUNRISE PROPANE: Judge Approves C$23-Mil. Class Action Settlement SWISHER HYGIENE: Wins Final OK of $5.5MM Securities Suit Deal T-MOBILE USA: Faces Suit Over Botched 911 Call Resulting in Death TENG SOUTH: Removed "Lopez" Suit to Southern District of Florida TEXAS GILA: Obtains Summary Judgment Ruling in TCPA Class Action THINKDIRECT MARKETING: Removed "Scali" Suit to M.D. Florida TRADER JOE'S: Court Suspended Trial in Mislabeling Class Suit TREASURY WINE: Seeks Transfer of Suit to Victoria High Court TRW AUTOMOTIVE: Settles Price-Fixing Suits by Vehicle Purchasers UNITED STATES: Tried to Remove Info From NSA Surveillance Case WELLS FARGO: Dist. Court Dismisses "Fiorilli" Case WHOLE FOODS: Accused of Understating Sugar Amount in Greek Yogurt YELP INC: Robins Geller Files Class Action in California YELP INC: Faces Shareholder Class Action in California ********* 19TH STREET FOOD: Removed "Barrett" Class Suit to S.D. Florida -------------------------------------------------------------- The class action lawsuit styled Barrett v. 19th Street Food Stop, Inc., et al., Case No. 14-CACE-003081, was removed from the Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida, to the United States District Court for the Southern District of Florida. The District Court Clerk assigned Case No. 0:14-cv-61813-KMW to the proceeding. In her complaint, Plaintiff Kerryann Barrett alleges that she was not paid overtime rate for all hours worked in excess of 40 per week. 19th Street Food Stop, Inc., is a Florida Profit Corporation having its main place of business in Broward County, Florida, where the Plaintiff worked for the Defendant. Joyce Raines is a corporate officer of, and exercised operational control over the activities of, the Company. The Plaintiff is represented by: Anthony M. Georges-Pierre, Esq. REMER & GEORGES-PIERRE, PLLC 44 West Flagler Street, Suite 2200 Miami, FL 33130 Telephone: (305) 416-5000 Facsimile: (305) 416-5005 E-mail: agp@rgpattorneys.com The Defendants are represented by: Peter T. Mavrick, Esq. Victor M. Velarde, Esq. MAVRICK LAW FIRM 1620 West Oakland Park Boulevard, Suite 300 Fort Lauderdale, FL 33311 Telephone: (954) 564-2246 E-mail: peter@mavricklaw.com vvelarde@mavricklaw.com ABAXIS INC: Shareholders Counsel Awarded $579,429 in Fees & Costs ----------------------------------------------------------------- Mike Heuer, writing for Courthouse News Service, reports that after settling a class action accusing it of issuing too many company shares to its executives, Abaxis must pay the attorneys for its shareholders more than a half million dollars. The St. Louis Retirement System led the 2012 federal class action, which accused the Abaxis board of directors of violating the company's 2005 Equity Incentive Plan in issuing more than 2 million restricted shares to company officers and other workers without shareholder approval. Though its plan limits the number of shares to only 500,000, shareholders cited the company's filings with the U.S. Securities and Exchange Commission in alleging that the board approved far more. In a Jan. 16, 2014, stipulation of settlement, Abaxis officials agreed to implement "corporate governance measures" relating to officer and director compensation and "equity award-granting procedures. The settlement also required Abaxis to pay up to $2 million in attorneys' fees and legal costs as determined by the federal court. After receiving approval of the deal in April, the St. Louis Retirement System sought $1.65 million in fees. U.S. District Judge Yvonne Gonzalez Rogers ordered Abaxis on August 11, 2014, to pay $579,429.53 as a partial award of attorneys' fees and expenses. "The court agrees that many of the claimed expenses here are excessive or inadequately supported," Rogers wrote. "The travel expenses for multiple attorneys to attend the mediation will not be allowed. However, the expenses for two attorneys to attend the hearings here were reasonable." The court used the lodestar method to determine the final amount for Abaxis to reimburse to St. Louis Police Retirement System. "In this case, since the settlement did not create a common fund, the court utilizes the lodestar method to determine reasonable attorneys' fees," Rogers said. "There is a strong presumption that the lodestar figure represents a reasonable fee." The shareholders' original complaint alleged that the company's annual SEC filing showed NASDAQ had sent a letter outlining how the company did not abide by its published equity compensation plan requiring stockholder approval before changing its terms. Instead, company officials made misleading statements during its September 2012 annual meeting of shareholders, according to the shareholder suit. During a 2012 shareholder meeting, company officials left shareholders "uninformed or misinformed" when they issued a proxy that omitted explaining "the basis for the compensation committee's decision to eliminate the Restricted Stock Limit -- e.g., that the grantor defendants had already violated the 2005 Plan by dramatically exceeding the restricted stock limit," the complaint said. St. Louis Police Retirement System is represented by: Ramzi Abadou, Esq. 79 Woodland Ave. San Francisco, CA 94117 E-mail: rabadou@gmail.com - and - Eric Zagar, Esq. James Miller, Esq. Matthew Goldstein, Esq. KESSLER TOPAZ MELTZER & CHECK LLP 280 King of Prussia Road Radnor, PA 19087 Telephone: (610) 667-7706 Facsimile: (610) 667-7056 E-mail: ezagar@ktmc.com jmiller@ktmc.com mgoldstein@ktmc.com The case is St. Louis Police Retirement System v. Abaxis, Inc., Clinton H. Severson, et al., Case No. 4:12-cv-05086-YGR, in the U.S. District Court for the Northern District of California. ABERCROMBIE & FITCH: Faces "Pelz" Class Suit in C.D. California --------------------------------------------------------------- Emily Pelz, an individual, and Jessica Valiente Chavarria, an individual, on behalf of themselves and all others similarly situated v. Abercrombie and Fitch Stores, Inc. dba Abercrombie & Fitch Stores, Inc., an Ohio corporation; and Does 1 through 10, inclusive, Case No. 2:14-cv-06327-DSF-JPR (C.D. Cal., August 12, 2014) arises from labor-related disputes. The Plaintiffs are represented by: Gene J. Stonebarger, Esq. Richard D. Lambert, Esq. STONEBARGER LAW APC 75 Iron Point Circle, Suite 145 Folsom, CA 95630 Telephone: (916) 235-7140 Facsimile: (916) 235-7141 E-mail: gstonebarger@stonebargerlaw.com rlambert@stonebargerlaw.com - and - Prescott Littlefield, Esq. Thomas A. Kearney, Esq. KEARNEY LITTLEFIELD LLP 633 West Fifth Street, 28th Floor Los Angeles, CA 90071 Telephone: (213) 473-1900 Facsimile: (213) 473-1919 E-mail: pwl@kearneylittlefield.com tak@kearneylittlefield.com ACURIAN INC: Faces "Lawson" Suit Alleging Violations of TCPA ------------------------------------------------------------ Tavia Lawson, Individually And On Behalf of All Others Similarly Situated v. Acurian Inc., Case No. 2:14-cv-06232-DDP-FFM (C.D. Cal., August 8, 2014) alleges violations of the Telephone Consumer Protection Act. The Plaintiff is represented by: Jason A. Ibey, Esq. Seyed Abbas Kazerounian, Esq. KAZEROUNI LAW GROUP APC 245 Fischer Avenue, Suite D1 Costa Mesa, CA 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 E-mail: jason@kazlg.com ak@kazlg.com - and - Joshua B. Swigart, Esq. HYDE AND SWIGART 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108-3609 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 E-mail: josh@westcoastlitigation.com - and - Todd M. Friedman, Esq. LAW OFFICES OF TODD M. FRIEDMAN PC 324 South Beverly Drive, Suite 725 Beverly Hills, CA 90212 Telephone: (877) 206-4741 Facsimile: (866) 633-0228 E-mail: tfriedman@attorneysforconsumers.com ALPHA MANAGEMENT: October 7 Settlement Claims Filing Deadline Set ----------------------------------------------------------------- COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT MIDDLESEX COUNTY 13-0560 PAUL RENIERE and WILLIAM LUCAS v. ALPHA MANAGEMENT CORPORATION AND URBAN HILLSIDE PROPERTIES, LLC SUMMARY NOTICE OF CLASS ACTION PROPOSED SETTLEMENT AND FINAL HEARING TO: ALL INDIVIDUALS WHO, AS OF APRIL 2012, WERE TENANTS AT: 17-19 WASHINGTON STREET, MALDEN, 86-96 MAPLE STREET, MALDEN 40 CEDAR STREET, MALDEN, OR 349 PLEASANT STREET, MALDEN A Class Action Lawsuit has been filed against Alpha Management Corporation and Urban Hillside Properties, LLC ("Defendants") on behalf of a class of tenants at the above-named properties who paid a "Key and Cleaning Deposit." The Plaintiffs contend that the Defendants mishandled the deposits. A proposed settlement has been reached that includes payment of approximately $105 to each class member. The Court has ordered the publication of this notice. If you resided at one of the addresses above as of April 2012 you may be a member of the class and may be entitled to payment. If you believe you may be a class member and you have not received a formal notice of class settlement in the mail (the "Mail Notice") you must first obtain a copy of the Mail Notice in order to receive payment or object to the settlement. You may obtain a Mail Notice by contacting Class Counsel: Josh Gardner Gardner and Rosenberg, P.C. 33 Mount Vernon St. Boston, MA 02108 (857) 225-2743 josh@gardnerrosenberg.com If you wish to file a claim, you must request a Mail Notice from Class Counsel, and fill out and return such Mail Notice to Class Counsel before October 7, 2014. If you wish to object to the settlement, you must request a Mail Notice from Class Counsel, which describes the process that must be followed to file an objection. All objections must be received by October 7, 2014. DO NOT ADDRESS ANY QUESTIONS ABOUT THE CASE TO THE CLERK OF THE COURT OR TO THE JUDGE. ALSON AUTO: Removed "Perez" Suit to Southern District of Florida ---------------------------------------------------------------- The class action lawsuit styled Perez v. Alson Auto, Inc., et al., Case No. 14-15341-CA-01, was removed from the 11th Judicial Circuit, Miami-Dade County, Florida, to the U.S. District Court for the Southern District of Florida (Miami). The District Court Clerk assigned Case No. 1:14-cv-22953-RNS to the proceeding. The lawsuit is brought pursuant to the Fair Labor Standards Act. The Plaintiff is represented by: Jeffrey Mitchell Goodz, Esq. REMER & GEORGES-PIERRE, PLLC 4901 Northwest 17th Way, Suite 505 Fort Lauderdale, FL 33309 Telephone: (954) 717-4500 Facsimile: (305) 416-5005 E-mail: jgoodz@rgpattorneys.com The Defendants are represented by: York Milligan Flik, Esq. ALLEN NORTON & BLUE 121 Majorca Avenue, Suite 300 Coral Gables, FL 33134 Telephone: (305) 445-7801 Facsimile: 442-1578 E-mail: yflik@anblaw.com ANHEUSER-BUSCH INBEV: Drivers Seek to Recover Unpaid Overtime ------------------------------------------------------------- Charles Hill, an individual; and Joe Correa, an individual, on behalf of themselves and all other similarly situated v. Anheuser- Busch Inbev Worldwide Inc., a Delaware corporation, Case No. 2:14- cv-06289 (C.D. Cal., August 11, 2014) alleges that the Company never paid any overtime to its drivers, including the Plaintiffs. Anheuser-Busch Inbev Worldwide Inc. is a Delaware corporation doing business in the county of Los Angeles, California. INBEV is a distributor of alcoholic beverages, primarily under the Anheuser-Bush name. The Plaintiffs are represented by: Michael L. Tracy, Esq. Megan E. Ross, Esq. LAW OFFICES OF MICHAEL TRACY 2030 Main Street, Suite 1300 Irvine, CA 92614 Telephone: (949) 260-9171 Facsimile: (866) 365-3051 E-mail: mtracy@michaeltracylaw.com mross@michaeltracylaw.com - and - Jose R. Garay, Esq. JOSE GARAY, APLC 9861 Irvine Center Drive Irvine, CA 92618 Telephone: (949) 208-3400 Facsimile: (949) 713-0432 E-mail: jgaray@garaylaw.com APPLE INC: Court Refused to Certify ITunes Double-Billing Class --------------------------------------------------------------- Apple need not face a class action for charging more than once for multiple iTunes downloads, a federal judge ruled, finding that each customer's particular allegations vary too much, reports Chris Marshall, writing for Courthouse News Service. Robert Herskowitz and Phoebe Juel hoped to represent a class of customers who made repeated downloads of the same song from iTunes, only to discover that Apple charged them every time. Juel said Apple charged her when she downloaded a song from Apple that she had already downloaded but could not locate on her computer. Herskowitz alleged he was charged more than once for the same product. A federal judge consolidated their cases, which allege breach of contract, bad faith, violation of the Consumers Legal Remedies Act, fraud and unjust enrichment. The plaintiffs filed a second amended consolidated complaint in May 2013 and moved to certify three classes in February 2014. The first class would include customers who were charged for a second download within 15 minutes of the first download, the second class would include those charged for a product they allegedly received in an improper format, and the third class would include members from the first two groups who also have an active e-Stores account. U.S. District Judge Lucy Koh found August 7, 2014, that particular questions about each plaintiff in each class foreclose class certification. She noted that it varies from customer to customer, for example, as to whether each plaintiff in the "15 Minute" class intended to buy the product a second time. Since their "breach of contract claim hinges on a question that can be resolved only on an individual basis, the court finds that common questions do not predominate," Koh wrote. In asking the court to presume that a customer who downloaded two copies of the same product within 15 minutes did not buy the second product in a valid manner, the plaintiffs said "it is unreasonable to conclude that class members gave their assent to purchase and pay for multiple copies of the same product." In addition to finding that the argument lacked any authority, Koh deemed the underlying presumption flawed to boot. "The court, observes, however, that there are several reasons why a customer might want to make two purchases of the same product in a short span of time," the 32-page ruling states. "For example, the customer may have bought the product twice on separate devices, lacking the time, ability or desire to copy the first purchase from one device to the other. Alternatively, the customer might have deleted or otherwise lost the first purchase after the file downloaded." Koh further noted that the proposed class would not exclude those who bought a product twice through two different e-Store accounts nor would it exclude those who bought songs for themselves and then again as a gift for someone else. In all these scenarios there is no question the customer wanted the second purchase. Furthermore, "even if the court were to accept plaintiffs' proposed presumption, individualized inquiries would still be required," the opinion states. Similar logic undermines the bid to certify other classes and for other claims, Koh said, noting, for example, that "the resolution of CLRA claims in this case will likely involve numerous individual questions that will overwhelm the common issues." "This is because there is no evidence that Apple has a common, let alone uniform, or 'blanket,' practice of denying refunds to customers who are charged twice for a single product," Koh added. Plaintiff Phoebe Juel is represented by: Christopher Land, Esq. LAW OFFICES OF JOHN A. KITHAS One Embarcadero Center, Suite 1020 San Francisco, CA 94111 Telephone: (415) 788-8100 Facsimile: (415) 788-8001 Plaintiff Robert Herskowitz is represented by: Joseph J. Tabacco, Jr., Esq. BERMAN DEVALERIO One California Street, Suite 900 San Francisco, CA 94111 Telephone: (415) 433-3200 Facsimile: (415) 433-6382 E-mail: jtabacco@bermandevalerio.com Defendant Apple Inc. is represented by: Penelope Preovolos, Esq. MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 94105-2482 Telephone: (415) 268-7000 Facsimile: (415) 268-7522 E-mail: ppreovolos@mofo.com The cases are: (1) Robert Herskowitz, individually and on behalf of all others similarly situated v. Apple, Inc., Case No. 12-CV-02131-LHK, in the U.S. District Court for the Northern District of California, San Jose Division; and (2) Phoebe Juel, individually and on behalf of all others similarly situated v. Apple, Inc., Case No. 12-CV-03124-LHK, in the U.S. District Court for the Northern District of California, San Jose Division. ASSURANT INC: Faces Action Over Lender-Place Insurance Program -------------------------------------------------------------- Assurant, Inc., is a defendant in class actions in a number of jurisdictions regarding its lender-placed insurance programs. These cases allege a variety of claims under a number of legal theories. The plaintiffs seek premium refunds and other relief. The Company continues to defend itself vigorously in these class actions. The Company has accrued an estimated loss for this litigation according to its Form 10-Q filed on July 29, 2014 with the Securities and Exchange Commission for the quarterly period ended June 30, 2014. "We have participated and may participate in settlements on terms that we consider reasonable given the strength of our defenses. However, the possible loss or range of loss resulting from such litigation and regulatory proceedings, if any, in excess of the amounts accrued is inherently unpredictable and involves significant uncertainty. Consequently, no estimate can be made of any possible loss or range of loss in excess of the above- mentioned accrual," according to the company. AVIS BUDGET: Loses Bid to Dismiss Reward Program Class Action ------------------------------------------------------------- Aebra Coe, Juan Carlos Rodriguez and Cara Salvatore, writing for Law360, report that a federal judge on Aug. 6 rejected car-rental giant Avis Budget Group Inc.'s bid to toss a class action accusing it of imposing a hidden surcharge on its travel reward program participants, saying the plaintiff has standing to pursue the suit. U.S. District Judge Jose L. Linares spurned Avis' argument that lead plaintiff Edward Schwartz lacks Article III standing because his employer paid his credit card bill and the fees in question. "Plaintiff was led to believe that he would be able to accrue frequent flyer miles for free. Instead, Defendant included a hidden fee in Plaintiff's total rental cost, charging Plaintiff for his ability to accrue those frequent flyer miles. This is sufficient to show that he has standing to sue for claims arising out of this contractual dispute," the order said. Additionally, although the plaintiff is not required to prove economic harm, Mr. Schwartz has shown he's out of cash because of the rental company's Travel Partners Program, Judge Linares said. "The $0.75 surcharge, though not a personal car rental cost, is not a valid business travel expense. Thus, assuming that the [fee] is contrary to New Jersey law, [Shwartz's employer] deserves to be reimbursed for that expense," the judge concluded. "This sufficiently satisfies the elements of 'ascertainable loss' and 'damages' of Plaintiff's claims." The class action, originally filed in 2011, alleges violations of the New Jersey Consumer Fraud Act, breach of contract, breach of the covenant of good faith and fair dealing, injunctive relief under New Jersey law and declaratory relief pursuant to the Declaratory Judgment Act. "We're very pleased with the decision by Judge Linares to deny summary judgment," Schwartz's attorney Bruce Greenberg of Lite DePalma Greenberg LLC told Law360 on Aug. 7. "Under the law, Mr. Schwartz plainly had standing to proceed, and he demonstrated an ascertainable loss under the New Jersey Consumer Fraud Act." The Aug. 6 victory is not the first for Mr. Schwartz. In 2012, the suit survived a motion to dismiss when Judge Linares rejected Avis' assertion that he had not adequately pled his claims under the NJCFA. Now that the court has resolved the summary judgment motion, it can turn to the question of class certification. In July, Avis said certification should be denied because the renters could plausibly have known of the surcharge, and most would have rented anyway. Customer expectations are individual, not class, issues, it said. Mr. Schwartz is represented by Bruce D. Greenberg, Jeffrey Shooman and Susana Cruz Hodge of Lite DePalma Greenberg LLC, Daniel R. Karon -- karon@gskplaw.com -- and Laura K. Mummert of Goldman Scarlato Karon & Penny PC and Jay R. Faeges -- Faeges@MGFL-law.com -- of Miller Goler Faeges Lapine LLP. Avis is represented by Philip R. Sellinger -- sellingerp@gtlaw.com -- Todd L. Schleifstein -- schleifsteint@gtlaw.com -- and Aaron Van Nostrand -- vannostranda@gtlaw.com -- of Greenberg Traurig LLP. The case is Schwartz v. Avis Rent A Car System LLC, case number 2:11-cv-04052, in the U.S. District Court for the District of New Jersey. BERNARD MADOFF: Dismissal of Trustee's Claims vs. Deals Affirmed ---------------------------------------------------------------- Victims of Bernard Madoff's massive Ponzi scheme can collect on a $410 million settlement despite obstruction from Madoff's bankruptcy trustee, reports Nick Divito at Courthouse News Service, citing a 2nd Circuit ruling. Irving Picard, as trustee for the liquidation of Bernard L. Madoff Investment Securities and Madoff's bankruptcy estate, launched "adversary proceedings" to block the settlement of three lawsuits on behalf of investors in "feeder funds" that funneled cash to perpetuate the scheme. Picard claimed that the settlements on those three cases would "hinder" his ability to recoup fraudulent transfers. Such concerns failed on August 8, 2014, however, to sway the 2nd Circuit on August 8. "The injuries alleged by the plaintiffs in both actions are alleged to have been caused directly by the non-debtor defendants -- not by Madoff or BLMIS," Judge Robert Sack wrote for a three- judge panel, abbreviating the name of Madoff's firm. "That renders them 'particularized' and outside the Trustee's purview. The actions are therefore not voided by, and the settlements are not subject to, the automatic stay." A group of investors brought one of the class actions at issue here in December 2008 on behalf of those who invested in four feeder funds run by Fairfield Greenwich Group, which invested their money in Madoff's company. A second, consolidated and amended complaint was filed in September 2009, citing securities violations. Separate federal judges shot down Picard's motions to dismiss the lawsuits. Settlement talks in 2010 led to a $50.2 million deal for the plaintiffs, with another $30 million escrow fund set up for future settlements or judgments. But the night before the courts were set to approve the proposal, Picard filed papers in U.S. Bankruptcy Court in Manhattan to block the settlement, arguing that it injured his own efforts to recover victims' money. "Pursuing a parallel strategy," Picard then asked the court to intervene directly. The courts declined, however, and New York's Attorney General Eric Schneiderman then sued in April 2009, claiming Ezra Merkin and his investment company, Gabriel Capital Corp., lied to several hundred investors in several feeder funds to take in $2 billion, "while turning all, or a substantial portion, of [investors'] funds over to Madoff and others." In September 2010, Bart Schwartz also filed suit against Merkin as a receiver of two Merkin funds, Ariel Fund Ltd. and Gabriel Capital. Schneiderman and Schwartz settled in June 2012 for $410 million as part of a joint settlement. Merkin agreed to pay $405 million over a three-year period, and $5 million to the state to cover fees and costs. Schneiderman's office said it was the first settlement stemming from a government's lawsuit against Merkin. Picard again sought to block the settlement, arguing that he had priority over Merkin's assets, and that distribution should await resolution of his separate claims against Merkin. In each case, the courts rejected his arguments. His appeal brought the case before the 2nd Circuit. Schneiderman hailed the circuit's decision on August 8, 2014, calling it a victory for "justice and accountability" "Many New Yorkers entrusted their investments to Mr. Merkin, who then steered money to Madoff and received millions of dollars in management and incentive fees," Schneiderman said in a statement. Victims "should begin receiving the money in the coming months," the AG added. Certain eligible investors, he said, can expect to recover 40 percent of their losses. Appellant Irving H. Picard is represented by: David J. Sheehan, Esq. Deborah H. Renner, Esq. Tracy L. Cole, Esq. Keith R. Murphy, Esq. BAKER & HOSTETLER LLP 45 Rockefeller Plaza New York, NY 10111-0100 Telephone: (212) 589-4200 Facsimile: (212) 589-4201 E-mail: dsheehan@bakerlaw.com drenner@bakerlaw.com tcole@bakerlaw.com kmurphy@bakerlaw.com - and - David B. Rivkin, Jr., Esq. Lee A. Casey, Esq. Mark W. DeLaquil, Esq. Andrew M. Grossman, Esq. BAKER & HOSTETLER LLP Washington Square, Suite 1100 1050 Connecticut Avenue, NW Washington, D.C. 20036-5304 Telephone: (202) 861-1500 Facsimile: (202) 861-1783 E-mail: drivkin@bakerlaw.com lcasey@bakerlaw.com mdelaquil@bakerlaw.com The Lead Plaintiffs-Appellees are represented by: Stuart H. Singer, Esq. BOIES, SCHILLER & FLEXNER LLP 401 East Las Olas Blvd., Suite 1200 Fort Lauderdale, FL 33301 Telephone: (954) 356-0011 Facsimile: (954) 356-0022 E-mail: ssinger@bsfllp.com - and - David A. Barrett, Esq. Howard L. Vickery, II, Esq. BOIES, SCHILLER & FLEXNER LLP 575 Lexington Avenue, 7th Floor New York, NY 10022 Telephone: (212) 446-2300 Facsimile: (212) 446-2350 E-mail: dbarrett@bsfllp.com hvickery@bsfllp.com - and - Robert C. Finkel, Esq. WOLF POPPER LLP 845 Third Avenue New York, NY 10022 Telephone: (212) 759-4600 Facsimile: (212) 486-2093 E-mail: rfinkel@wolfpopper.com - and - Victor E. Stewart, Esq. LOVELL STEWART HALEBIAN JACOBSON LLP 61 Broadway, Suite 501 New York, NY 10006 Telephone: (212) 608-1900 The Defendants-Appellees Fairfield Greenwich Limited, et al., are represented by: Marc G. Cunha, Esq. Peter E. Kazanoff, Esq. Jeffrey L. Roether, Esq. Jeffrey E. Baldwin, Esq. Nicholas S. Davis, Esq. SIMPSON THACHER & BARTLETT LLP 425 Lexington Avenue New York, NY 10017 Telephone: (212) 455-2000 Facsimile: (212) 455-2502 E-mail: mcunha@stblaw.com pkazanoff@stblaw.com jroether@stblaw.com jbaldwin@stblaw.com ndavis@stblaw.com Appellees Eric T. Schneiderman, Bart M. Schwartz and Ralph C. Dawson are represented by: James C. McCarroll, Esq. Jordan W. Siev, Esq. Michael J. Venditto, Esq. REED SMITH LLP 599 Lexington Avenue 22nd Floor New York, NY 10022 Telephone: (212) 521-5400 Facsimile: (212) 521-5450 E-mail: jmccarroll@reedsmith.com jsiev@reedsmith.com mvenditto@reedsmith.com - and - Judith A. Archer, Esq. David L. Barrack, Esq. Jami Mills Vibbert, Esq. FULBRIGHT & JAWORSKI LLP 666 Fifth Avenue New York, NY 10103-3198 Telephone: (212) 318-3000 Facsimile: (212) 318-3400 E-mail: judith.archer@nortonrosefulbright.com david.barrack@nortonrosefulbright.com jami.vibbert@nortonrosefulbright.com Defendants-Appellees J. Ezra Merkin and Gabriel Capital Corporation are represented by: Andrew J. Levander, Esq. Neil A. Steiner, Esq. DECHERT LLP 1095 Avenue of the Americas New York, NY 10036-6797 Telephone: (212) 698-3500 Facsimile: (212) 698-3599 E-mail: andrew.levander@dechert.com neil.steiner@dechert.com Intervenor Securities Investor Protection Corporation is represented by: Nathanael S. Kelly, Esq. Josephine Wang, Esq. Kevin H. Bell, Esq. SECURITIES INVESTOR PROTECTION CORPORATION 805 15th Street, Suite 800 Washington, D.C. 20005 Telephone: (202) 371-8300 Facsimile: (202) 371-6728 E-mail: nkelley@sipc.org jwang@sipc.org kbell@sipc.org The appellate cases are Picard v. Fairfield Greenwich, et al., Lead Case No. 13-1289-bk (consolidated with Case No. 13-1392-cv), in the United States Court of Appeals for the Second Circuit; and Picard v. Schneiderman, et al., Case No. 13-1785, in the United States Court of Appeals for the Second Circuit. BEST BUY: Judge Certifies Investors' Securities Class Action ------------------------------------------------------------ Stewart Bishop, writing for Law360, reports that a Minnesota federal judge on Aug. 6 certified a class of investors suing Best Buy Co. Inc. and top executives, alleging the company misled shareholders about performance and expectations resulting in artificially inflated share prices during a three-month period in 2010. U.S. District Judge Donovan W. Frank approved the class, which includes shareholders who purchased Best Buy common stock between 10:00 a.m. Sept. 14, 2010, and Dec. 13, 2010. The company's shares traded artificially high during the class period based on misstatements by Best Buy and several of its officers and directors, the complaint said. In his order, Judge Frank wrote that the class had successfully proven its members were entitled to the presumption of reliance, and had proposed a model that calculates damages caused by the alleged fraud on a classwide basis. The suit, filed in February 2011, alleged that Best Buy boasted a healthy demand for its electronic products and projected that its fiscal year 2011 earnings per share would hit $3.55-$3.70. As a result, Best Buy stock maxed out at $44.81 per share between Sept. 14 and Dec. 13, 2010, the suit claimed. When Best Buy released its third-quarter results, however, it revealed that its product sales were falling, a trend that began in June 2010, according to the plaintiffs. The company told investors that its growth assessments had been "too aggressive" and that certain new products had been slow to take hold, the complaint alleges. As a result, Best Buy lowered its earnings forecast to $3.20-$3.40 per share. When the news dropped, Best Buy's share price sank by 14 percent, closing at $34.52 on Dec. 14, 2010. The plaintiffs asserted that the company and its executives made numerous misstatements and omissions about its financial well- being in news releases, conference calls and public meetings, and that it acted with scienter, knowing or recklessly disregarding the truth about Best Buy's state. In August 2013, Judge Frank pared down the suit after finding some statements made in September 2010 were protected by the safe harbor provision under the Private Securities Litigation Reform Act. Judge Frank had originally thrown out the case with prejudice in March 2012, finding no evidence showed that the company had knowledge making its statements false or misleading, but revived the suit in October, agreeing with the plaintiffs that he had improperly treated their consolidated complaint as an amended complaint. In the Aug. 6 order, Judge Frank rejected the defense's contentions that the class members had failed to establish a presumption of reliance and that the members failed to prove damages could be proven on a classwide basis. The judge wrote that the plaintiffs showed that the stocks increased after the allegedly misleading statements were made and dropped after they were revealed to be untrue, and found the plaintiffs successfully proposed a model to calculate damages. The judge agreed with Best Buy's argument that the class as initially proposed could include some who bought the stock before the disputed statements were made. He narrowed the definition of the class, excluding those who bought or acquired the stock before the alleged false statements were made at 10 a.m. Sept. 14, 2010. Plaintiffs' attorney Shawn A. Williams -- shawnw@rgrdlaw.com -- told Law360 on Aug. 6 he was pleased with the court's decision. The plaintiffs are represented by lead counsel Shawn A. Williams, Daniel J. Pfefferbaum, Aelish M. Baig and Kenneth J. Black -- kennyb@rgrdlaw.com -- of Robbins Geller Rudman & Dowd LLP. Best Buy is represented by Michael V. Ciresi -- mvciresi@rkmc.com -- Stephen P. Safranski, David W. Beehler -- dwbeehler@rkmc.com -- and Amy E. Slusser of Robins Kaplan Miller & Ciresi LLP. The case is IBEW Local 98 Pension Fund et al. v. Best Buy Co. Inc. et al, case number 0:11-cv-00429, in the U.S. District Court for the District of Minnesota. BEYOND BROADWAY: Sued Over Marijuana-Infused Chocolate Bars ----------------------------------------------------------- Though a chocolatier at the Denver County Fair's Pot Pavilion assured a visitor there was no THC in its free samples, he got so high from them he projectile vomited on the way to a hospital, the man claims in a class action complaint, reports Megan Gallegos at Courthouse News Service. Jordan Coombs sued edible marijuana chocolatier Beyond Broadway dba Full Melt Chocolate and LivWell, in Denver County District Court. "This civil action is for personal injuries arising from the defendants' negligent distribution of marijuana-infused chocolate bars under the guise that they contained no Tetrahydrocannabinol (THC), the principal psychoactive constituent (or cannabinoid) of this cannabis plant," Coombs says in the lawsuit. "Plaintiff complains, inter alia, that Broadway gave him several pieces of chocolate at the Pot Pavilion at the Denver County Fair and was expressly told by Broadway representatives that the chocolate contained no THC. Upon ingesting the chocolate the plaintiff experienced and overdosed on THC causing him to become seriously and physically ill requiring treatment and evaluation at the emergency room." Coombs claims that after he ate the chocolate he felt so strange he had to leave the fair. His wife drove him to the hospital and "during the drive away from the Denver County Fair, the plaintiff became so sick that he projectile vomited uncontrollably in his car," the complaint states. The vomit was so bad that that car required "professional cleaning." Coombs claims physicians in the emergency room diagnosed him as overdosing on THC, which they detected in his blood. Coombs seeks class certification and damages for product liability, breach of warranty, negligence, failure to label and negligent misrepresentation. The Plaintiff is represented by: Corey Zurbuch, Esq. FRASCONA, JOINER, GOODMAN AND GREENSTEIN, P.C. 4750 Table Mesa Drive Boulder, CO 80305 Telephone: (303) 494-3000 Facsimile: (303) 494-6309 BLUE SHIELD: Class Not Certified for Failing to Show Commonality ---------------------------------------------------------------- Blue Shield customers who were denied coverage based on policy exclusions failed to show the commonality required for class certification, reports Maria Dinzeo at Courthouse News Service, citing a federal court ruling. The parents of a boy described only as Geoffrey F. brought the action in 2009, claiming Blue Shield denied coverage of Geoffrey's residential treatment for his "disruptive behavior disorder," as their plan didn't cover residential treatment for mental illnesses. Challenging the denied reimbursement under the California Mental Health Parity Act, Geoffrey's parents also brought a claim for breach of contract under the Employee Retirement Income Security Act. U.S. District Judge Yvonne Gonzalez Rogers denied the plaintiffs class certification on August 11, 2014, finding the proposed grouping too broad and ill-defined. "The proposed class appears to include every beneficiary/participant in a Blue Shield ERISA plan who was denied coverage, based on a policy exclusion, for any form of 'residential treatment' for any form of mental illness or behavioral disorder," Gonzalez wrote. She added: "The only constants appear to be beneficiaries who were insured in some capacity under a Blue Shield health insurance policy, and who received mental health treatment in a residential treatment facility, and who claim that Blue Shield improperly denied coverage. This failure to precisely define the proposed class creates a major barrier for certification." Whether each member's claims fall under the Parity Act would also raise too many individual issues, Gonzalez said. "In order to establish that his/her claim falls under the Parity Act, each purported class member would have to show that he/she has a Parity Act condition, that the residential care services he/she received were for treatment of that condition, that the services/treatment were covered by the Parity Act, and that the services/treatment were medically necessary (or that Blue Shield had waived that requirement by not raising it during the administrative proceeding when it had sufficient information in its possession to have evaluated medical necessity)," the 26-page opinion states. "Each of these questions may require an individualized inquiry, which defeats predominance." Gonzalez said it would be difficult to manage the case, as each class member would have to establish his own right to recovery. "Plaintiffs have made no attempt to explain how the court could possibly try this case as a class action given the number of individual issues involved," she wrote. The ruling concludes: "In light of plaintiffs' failure to articulate a definition of an ascertainable class, and in light of the fact that numerous individual issues predominate over any common issues, a class action is plainly not a superior method of adjudication of the controversy." The case is Daniel F., et al. v. Blue Shield of California, et al., Case No. 4:09-cv-02037-PJH, in the U.S. District Court for the Northern District of California. CANADA: Court Panel Allows G20 Summit Class Actions to Proceed -------------------------------------------------------------- Diana Mehta, writing for The Canadian Press, reports that an Ontario court has cleared the way for two class-action lawsuits by hundreds of people detained during the G20 summit in Toronto four years ago, saying it's important their allegations of police mistreatment be heard in court. A proposed class-action suit related to the summit was initially stalled last year when a judge ruled it couldn't proceed because its "broad, sweeping nature" was viewed as problematic. But a Divisional Court panel hearing an appeal of that ruling determined that the proceedings could move forward in two separate, but related, class-action lawsuits. One will deal with hundreds who were abruptly detained by police at five locations across Toronto, and another will deal with the treatment of those who were held at a "chaotic" detention center set up during the summit. "It is important to remember that the police cannot sweep up scores of people just in the hope that one of the persons captured is a person who they believe is engaged in criminal activity," Justice Ian Nordheimer wrote on behalf of the unanimous, three- member panel. "In essence, in this case, we have a broad class of persons who were allegedly arbitrarily detained in each instance by the police through the use of a single sweeping order." More than 1,000 people were detained by police during the G20 summit in June 2010 after protesters using so-called Black Bloc tactics broke away from a peaceful rally and ran through the downtown, smashing windows and burning police cruisers. The vast majority of those detained were released without charge within 24 hours. The class-action proceedings that will now proceed involve "a very serious issue of access of justice," noted Justice Nordheimer, adding that many of those involved may not be willing to put in the time and expense required for individual legal proceedings. "The damage was made to the liberty interests of these individuals where the harm is, perhaps, easier to ignore and easier to minimize," he wrote. "It is a harm, however, that is nonetheless real and it is harm, if proven, that should not go unremedied." None of the allegations made in the class-action lawsuits have been proven in court. Critics have denounced police actions in Toronto during the tumultuous G20 summit as one of the largest abuses of civil liberties in Canadian history. The Divisional Court ruling, released on Aug. 13, noted that the allegations of mistreatment by police that would be brought forward by the class-action proceedings were significant. "If the appellant's central allegation is proven, the conduct of the police violated a basic tenet of how police in a free and democratic society are expected to conduct themselves," Justice Nordheimer wrote. "If that view of the conduct in this instance is made out, an award of damages to the individual citizens affected may be the most telling and lasting expression that such conduct should never be tolerated." Sherry Good, an office administrator in her 50s who spearheaded the original class action, said she was grateful for the Divisional Court ruling. "When I was boxed-in by the police in the torrential rain at Queen and Spadina with hundreds of other ordinary citizens, I believed that what the police were doing was very wrong," she said in a statement. "The class action can now move forward and hopefully bring some measure of peace and comfort to the many people that suffered because of the police actions that weekend." Thomas Taylor, who is now the representative plaintiff for the second separate class-action lawsuit dealing with those held in the summit's sprawling makeshift detention center, also welcomed the ruling. "During the G20 weekend hundreds of people were arrested and taken to the makeshift G20 detention center, where many were held for 24 hours or more in overcrowded wire cages and in freezing temperatures without enough food or water," he said. "All of this just because we exercised our right to speak freely. Most Canadians that I have spoken with cannot believe that this happened here. It should not be allowed to happen again." CHESAPEAKE ENERGY: Omissions Were Not Misleading, 10th Cir. Ruled ----------------------------------------------------------------- Chesapeake Energy cannot be sued for securities fraud because its failed disclosure of hedging strategies to shareholders was not material or misleading, reports David Lee at Courthouse News Service, citing a 10th Circuit ruling. A United Food and Commercial Workers Union pension fund filed a proposed class action against the Oklahoma City-based company, its officers board of directors in federal court in 2009 for securities fraud. The fund claimed the company's stock plummeted after its initial public offering in July 2008 when natural gas prices tanked and the financial crisis rocked the economy. The fund argued the company should have disclosed that it had expanded a "risky gas-price hedging strategy" that put it in danger if natural gas prices fell. It also argued that former CEO Aubrey McClendon had pledge all of his stock as security for margin loans and lacked the money to meet margin calls. The trial court later granted Chesapeake summary judgment and entered judgment for the company in June 2013. On August 8, 2014, a three-judge panel with the Denver-based 10th Circuit affirmed the ruling. Writing for the court, Judge Harris L. Hartz agreed that there was no violation of disclosure duties. "We doubt that the registration statement was misleading," the 27- page opinion stated. "Certainly, plaintiff has failed to support its claim that Chesapeake changed its knockout hedging strategy in the second quarter of 2008." Hartz said that although the information on the complex knockout swaps are absent from the registration statement, they are found in the company's SEC filings within the registration statement. "Of those filings, the May 10-Q -- a quarterly report with data through March 2008 -- provided the most recent disclosures about Chesapeake's knockout swaps," he wrote. "It listed the volume of knockout swaps Chesapeake had entered into that would mature in 2008, 2009, and 2010, and stated the average fixed price and the average knockout price for the contracts." Hartz disagreed with the fund's argument that disclosures in a follow-up 8-K filing should not be considered because it was not part of the offering materials. "But the report is still relevant," he wrote. "The claim here is that Chesapeake failed to disclose material information, and '[m]ateriality . . . depends on the information that already exists in the market,'" the opinion stated. "Undisclosed information is material only if its disclosure would have 'significantly altered the total mix of information available' to a reasonable investor. Public documents are part of that total mix if an investor interested in a particular type of information about a company would know of the existence of the record and could readily access it." The appeals court also concluded the registration statement adequately disclosed McClendon's stock, rejecting arguments that it should have been more specific. "All shares held in margin accounts are vulnerable to margin calls, depending on movements in the market," the opinion stated. "The disclosure that plaintiff insists on -- listing exactly the number of shares serving as collateral at the moment of reporting -- can understate risk by obscuring the fact that other shares held in margin accounts might be needed as collateral in the future. Chesapeake's failure to specify how many of McClendon's shares actively served as collateral was not a material omission because, if anything, it provided an excessive warning of risk by overstating the number of collateralized shares." The union did not respond to a request for comment on August 11, 2014. Gordon Pennoyer, Chesapeake's strategic communications director, declined to comment on the ruling on August 12, 2014 morning. The Plaintiff-Appellant is represented by: Steven F. Hubachek, Esq. Eric Alan Isaacson, Esq. James I. Jaconette, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: (619) 231-1058 Facsimile: (619) 231-7423 E-mail: shubachek@rgrdlaw.com erici@rgrdlaw.com jamesj@rgrdlaw.com The Defendants-Appellees are represented by: Robert P. Varian, Esq. Kenneth Herzinger, Esq. M. Todd Scott, Esq. Christin J. Hill, Esq. Alexander K. Talarides, Esq. ORRICK, HERRINGTON & SUTCLIFFE LLP The Orrick Building 405 Howard Street San Francisco, CA 94105-2669 Telephone: (415) 773-5700 Facsimile: (415) 773-5759 E-mail: rvarian@orrick.com kherzinger@orrick.com tscott@orrick.com chill@orrick.com atalarides@orrick.com The appellate case is United Food and Commercial Workers Union Local 880 Pension Fund, individually and on behalf of all others similarly situated v. Chesapeake Energy Corporation, et al., Case No. 13-6165, in the United States Court of Appeals for the Tenth Circuit. CLIENT SERVICES: Accused of Violating Fair Debt Collection Act -------------------------------------------------------------- Patricia M. Milner, individually and on behalf of all others similarly situated v. Client Services, Inc., Case No. 1:14-cv- 00358-ML-PAS (D.R.I., August 8, 2014) alleges violations of the Fair Debt Collection Practices Act. The Plaintiff is represented by: John T. Longo, Esq. CITADEL CONSUMER LITIGATION, P.C. 681 Smith St., Suite 201 Providence, RI 02908 Telephone: (401) 383-7550 Facsimile: (401) 537-9185 E-mail: jtlongo@citadelpc.com DANIEL C. CONSUEGRA: Sued for Violating Fair Debt Collection Act ---------------------------------------------------------------- Richard Simpson, Jr., on behalf of himself and all others similarly situated v. Law Offices of Daniel C. Consuegra, P.L., a Florida Professional Limited Liability Company, and Dyck-O'Neal, Inc., a Texas Corporation, Case No. 8:14-cv-01946-VMC-AEP (M.D. Fla., August 12, 2014) alleges violations of the Fair Debt Collection Practices Act. The Plaintiff is represented by: Austin Tyler Brown, Esq. Earl Warren Parker, Jr., Esq. PARKER & DUFRESNE, PA 8777 San Jose Blvd., Suite 301 Jacksonville, FL 32217-4226 Telephone: (904) 733-7766 Facsimile: (904) 733-2919 E-mail: abrown@jaxlawcenter.com parker@jaxlawcenter.com - and - Brian W. Warwick, Esq. Janet R. Varnell, Esq. Steven Thomas Simmons, Jr., Esq. VARNELL & WARWICK, PA P.O. Box 1870 Lady Lake, FL 32158 Telephone: (352) 753-8600 Facsimile: (352) 753-8606 E-mail: bwarwick@varnellandwarwick.com jvarnell@varnellandwarwick.com simmons@varnellandwarwick.com DOLGENCORP LLC: Removed "Vincino" Suit to Florida District Court ---------------------------------------------------------------- The class action lawsuit titled Vincino v. Dolgencorp LLC, Case No. 2014-CA-517, was removed from the Circuit Court, Eighth Judicial Circuit, of Levy County, Florida, to the United States District Court for the Northern District of Florida, Gainesville Division. The District Court Clerk assigned Case No. 1:14-cv- 00142-RS-GRJ to the proceeding. In her complaint, Leslie Vincino asserts several individual claims under the federal Fair Labor Standards Act, as well as a handicap discrimination claim under Florida's Civil Rights Act. The Plaintiff is represented by: Edwin A. Green, III, Esq. BLANCHARD, MERRIAM, ADEL & KIRKLAND, P.A. Post Office Box 1869 Ocala, FL 34478 Telephone: (352) 732-7181 Email: tgreen@bmaklaw.com The Defendant is represented by: Paul A. Donnelly, Esq. DONNELLY & GROSS, P.A. 2421 Northwest 41st Street, Suite A-1 Gainesville, FL 32606 Telephone: (352) 374-4001 Facsimile: (352) 374-4046 E-mail: paul@donnellygross.com - and - Joel S. Allen, Esq. Melissa M. Hensley, Esq. Christopher L. Maberry, Esq. MORGAN LEWIS & BOCKIUS LLP 1717 Main Street, Suite 3200 Dallas, TX 75201 Telephone: (214) 466-4000 Facsimile: (214) 466-4001 E-mail: joel.allen@morganlewis.com melissa.hensley@morganlewis.com cmaberry@morganlewis.com DOLLAR TREE: Violates Americans with Disabilities Act, Suit Says ---------------------------------------------------------------- Christopher Mielo, individually and on behalf of all others similarly situated v. Dollar Tree, Inc., Case No. 2:14-cv-01062- LPL (W.D. Pa., August 8, 2014) is brought pursuant to The Americans with Disabilities Act of 1990. The Plaintiff is represented by: Benjamin J. Sweet, Esq. CARLSON LYNCH LTD PNC Park 115 Federal Street, Suite 210 Pittsburgh, PA 15212 Telephone: (412) 322-9243 Facsimile: (412) 231-0246 E-mail: bsweet@carlsonlynch.com DREAMWORKS ANIMATION: Robins Geller Files Class Action in Calif. ---------------------------------------------------------------- Robbins Geller Rudman & Dowd LLP on Aug. 7 disclosed that a class action has been commenced in the United States District Court for the Central District of California on behalf of purchasers of DreamWorks Animation SKG, Inc. common stock during the period between October 29, 2013 and July 29, 2014. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from August 1, 2014. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel, Darren Robbins of Robbins Geller at 800/449-4900 or 619/231-1058, or via e-mail at djr@rgrdlaw.com If you are a member of this class, you can view a copy of the complaint as filed or join this class action online at http://www.rgrdlaw.com/cases/dreamworksanimation/ Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. The complaint charges DreamWorks and certain of its officers and directors with violations of the Securities Exchange Act of 1934. DreamWorks creates entertainment, including CG animated feature films, television specials and series, and live entertainment properties, for audiences around the world. The complaint alleges that defendants issued materially false and misleading statements during the Class Period about the Company's business, operations, prospects and performance. Specifically, defendants failed to disclose that DreamWorks improperly accounted for its animated film, Turbo, prior to recording a $13.5 million impairment charge, improperly accounted for the impairment charge related to the Turbo movie, and lacked adequate internal control over financial reporting. The complaint alleges that following its commercially successful release of the movie The Croods in March 2013, DreamWorks released Turbo, an animated film about a snail whose dream to become the fastest snail in the world comes true. In North America, on its opening day, Turbo earned $5.8 million in 3,552 theaters, the third lowest all-time opening for a DreamWorks computer-animated film, and when adjusted for inflation and 3D prices, the smallest opening weekend audience ever for a DreamWorks picture. Turbo ultimately grossed $83 million in North America and $199 million in other countries, for a worldwide total of $282 million. The film cost $127 million to produce, but because DreamWorks spent between $150 million and $175 million to market it, the film had one of the lowest gross revenues in DreamWorks' history. On February 26, 2014, the Company filed its Annual Report on Form 10-K with the SEC in which it admitted that Turbo had not "recovered [its] production costs" and that due to Turbo's poor performance the Company had "recorded an impairment charge totaling $13.5 million." On July 29, 2014, during a conference call with analysts, DreamWorks revealed that the Company was under investigation by the SEC for the $13.5 million impairment charge the studio took in relation to the poor performance of the Turbo movie. The Company indicated that it was cooperating with the SEC, but would not elaborate on the scope or extent of the investigation. On this news, shares in DreamWorks fell $2.68 per share, or almost 12%, on extremely heavy trading volume, to close at $19.98 per share on July 30, 2014. Plaintiff seeks to recover damages on behalf of all purchasers of DreamWorks common stock during the Class Period. The plaintiff is represented by Robbins Geller, which has expertise in prosecuting investor class actions and extensive experience in actions involving financial fraud. With more than 200 lawyers in ten offices, Robbins Geller -- http://www.rgrdlaw.com-- represents U.S. and international institutional investors in contingency-based securities and corporate litigation. E-TELEQUOTE & CASUALTY: Faces "Charvat" Class Suit in Florida ------------------------------------------------------------- Philip Charvat, Individually, and on behalf of all others similarly situated v. E-Telequote & Casualty Company, Case No. 8:14-cv-01928-JSM-MAP (M.D. Fla., August 11, 2014) is brought over restrictions on use of telephone equipment. The Plaintiff is represented by: Phillip T. Howard, Esq. Scott Carruthers, Esq. HOWARD & ASSOCIATES, PA 2120 Killarney Way, Suite 125 Tallahassee, FL 32309 Telephone: (850) 298-4455 Facsimile: (850) 216-2537 E-mail: tim@howardjustice.com EBAY INC: Court Refused to Dismiss Suit Over Listing Fee Refunds ---------------------------------------------------------------- EBay must face claims that its policies are unfairly biased against sellers and allow dishonest buyers to defraud them, reports Rebekah Kearn at Courthouse News Service, citing a federal court ruling. Lead plaintiff Maggie Campbell hopes to represent a class of sellers suing eBay and its wholly owned payment processor, PayPal on the grounds that the companies' buyer-is-always-right policy exposes sellers to fraud. In her October 2012 complaint, Campbell, who says she uses eBay to sell bicycles and related parts, claims the site allows buyers who dispute a transaction to keep the items they purchased and gives them a refund through either eBay or PayPal. Not only does this policy deprive sellers of their goods and profits, she says, eBay also refuses to refund sellers the listing fees for disputed items. In its motion to dismiss, eBay claimed the class lacked standing and did not support their case with enough facts. U.S. District Judge Yvonne Gonzalez Rogers agreed and dismissed the complaint in September 2013 with leave to amend, directing Campbell to address "the nature of the restrictions that are the basis for her complaint and why those restrictions are not part of the agreement she acceded to as part of her user agreement." Campbell filed a third amended complaint for seven causes of action, including breach of contract, unfair business practices, fraud, and breach of fiduciary duty against PayPal only. EBay again sought dismissal for failure to make viable claims and lack of standing, arguing that its "contracts with her allow all the conduct alleged." Rogers's ruling on August 11, 2014, was a mixed bag, offering both parties some relief while ultimately denying eBay's motion to dismiss. Since Campbell did not oppose eBay's argument that her invasion of privacy claims against it were insufficient, and conceded that her claims for fraud and interference with contract should be dismissed outright, Rogers granted eBay's motions to dismiss those claims. Rogers ruled that Campbell's breach of contract claims against PayPal were not sufficiently alleged. Campbell argued that PayPal wrongfully refuses to force buyers to return items to sellers if the buyers say the item arrived "significantly not as described." For example, she says, she sold $300 worth of bicycle parts to a man in Tennessee who got to keep the items and was refunded his money after he complained that he had "not authorized payment" for them. Rogers was not convinced. "The TAC [third amended complaint] itself does not allege which portions of the agreement were breached on account of the alleged conduct," she wrote. "Moreover, the sections cited by plaintiff in opposition only undermine her claim, as they demonstrate that sellers like plaintiff agreed to these terms. . . . Thus, the PayPal agreement itself notified sellers that PayPal may require them to refund sales proceeds without requiring the buyer to return the item sold. In order to state a claim for breach of contract, plaintiff would have to plead these provisions in the PayPal agreement." Campbell found more relief with her related claims against eBay. She argued that eBay wrongfully refuses to credit final value fees back to sellers when sales are rescinded, in breach of its buyer protection policy; did not allow PayPal to accept money from potential international buyers on several occasions; and unfairly sides with "dishonest, deceptive" buyers during disputes rather than investigating each matter to determine who is right. In opposition, eBay argued that the buyer protection policy allows it to settle disputes any way it chooses, and claimed that Campbell signed an agreement that lets it limit acceptable payment methods, including international transactions. Rogers sided with Campbell on this one, stating that eBay's "arguments miss the point of the allegations." "Though the TAC is not a model of clarity, it states eBay's alleged unfair conduct in the exercise of its discretion under its agreements with plaintiff and others. While the court agrees that the implied covenant of good faith and fair dealing does not 'prohibit a party from doing that which is expressly permitted by an agreement,' it does prohibit a party vested with discretion from exercising that discretion in a manner that is 'contrary to the contract's purposes and the parties' legitimate expectations," the ruling states, citing the 4th Circuit's decision in Carma Developers Inc. v. Marathon Development California Inc. Rogers dismissed all of Campbell's fiduciary duty allegations against PayPal for failure to make a claim except her argument that PayPal arbitrarily put holds on her and other sellers' funds. Though sellers' user agreements with PayPal say it can put holds on funds during disputes with buyers or with risky sales, it cannot simply use its discretion to place holds on funds at random, according to the complaint. Campbell also prevailed on many of her claims that eBay intentionally interfered with sellers' contracts. Though Rogers agreed with eBay that Campbell cannot complain about her inability to enforce a "no returns allowed" term of sale after she signed the site's dispute resolution policy, it must face claims that it is unfairly biased against sellers in dispute resolution proceedings and refuses to let PayPal process international payments, the ruling states. Rogers dismissed Campbell's arguments that eBay arbitrarily forces sellers to add shipping costs to sale prices, arbitrarily changed the way it determines "top-rated sellers" to make gaining that distinction functionally impossible, and putting allegedly unfair restrictions on sellers' user accounts. However, she allowed the unfair competition claims that focused on arbitrary use of discretion to move forward, including PayPal's alleged use of arbitrary holds and eBay's "buyer-is-always-right" policy. A final, fourth amended complaint that alleges only the surviving claims is due within fourteen days of the order, and eBay and PayPal have fourteen days to respond. A case management conference is set for October 27. The case is Maggie Campbell v. EBay, Inc., and Paypal, Inc., Case No. 13-CV-2632 YGR, in the U.S. District Court for the Northern District of California. EL PASO PIPELINE: Dismissal of Unitholders' Suit on Appeal ---------------------------------------------------------- El Paso Pipeline Partners, L.P., said in a Form 10-Q Report filed with the Securities and Exchange Commission on July 29, 2014, for the quarterly period ended June 30, 2014, that in May 2012, a unitholder of EPB filed a purported class action in Delaware Chancery Court, alleging both derivative and non-derivative claims, against El Paso, and the company's general partner and its board. El Paso was named in the lawsuit as both a "Class Defendant" and a "Derivative Nominal Defendant." The complaint alleges a breach of the duty of good faith and fair dealing in connection with the March 2011 sale to El Paso of a 25% ownership interest in Southern Natural Gas Company, L.L.C. On June 20, 2014, defendants' motion for summary judgment was granted, dismissing the case in its entirety. Plaintiff filed a notice of appeal on July 28, 2014. FACEBOOK INC: 25,000 Users Sign on to Privacy Class Action ---------------------------------------------------------- Agence France-Presse reports that an Austrian waging a battle against Facebook's privacy policies says 25,000 users of the social networking giant have signed on to his class action lawsuit. The suit, filed by lawyer Max Schrems, claims a symbolic EUR500 per plaintiff from Facebook for several out of a "long list" of alleged violations of the law, his advocacy group Europe-v- Facebook said. These include its privacy policy, Facebook's alleged participation in the US National Security Agency's PRISM snooping program, and tracking users' visits to other websites with, for example, the 'Like' function. Media-savvy Schrems, who first took on Facebook several years ago as a student, filed the legal action in Vienna. He had to limit numbers signing on to it to 25,000 after some 7000 signed up every day. "With this number of participants we have a really excellent basis not just to complain about Facebook in Europe but actually to do something," Mr. Schrems said in a statement on his website. The suit is directed against Facebook's Ireland-based subsidiary, the US firm's headquarters for its overseas operations, and was not open to users from the United States and Canada. The subsidiary has to abide by EU data protection laws, which are more stringent than those in North America. The majority of those who signed up were from Europe, with the biggest numbers from Germany, Austria and the Netherlands. FOCUS RECEIVABLES: Faces Class Suit Alleging Violation of TCPA -------------------------------------------------------------- Corrie Zarakowski, Individually and On Behalf of All Others Similarly Situated v. Focus Receivables Management, LLC, and Does 1 through 10 inclusive and each of them, Case No. 2:14-cv-06262- FMO-JC (C.D. Cal., August 8, 2014) alleges violation of the Telephone Consumer Protection Act. The Plaintiff is represented by: Asaf Agazanof, Esq. ASAF LAW 8730 Wilshire Boulevard, Suite 310 Beverly Hills, CA 90211 Telephone: (424) 254-8870 Facsimile: (888) 254-2651 E-mail: asaf@lawasaf.com - and - Todd M. Friedman, Esq. Suren N. Weerasuriya, Esq. LAW OFFICES OF TODD M. FRIEDMAN PC 324 S Beverly Drive, Suite 725 Beverly Hills, CA 90212 Telephone: (877) 206-4741 Facsimile: (866) 633-0228 E-mail: sweerasuriya@attorneysforconsumers.com tfriedman@attorneysforconsumers.com FORD MOTOR: Tailgate Complaint Must Be Amended Again, Court Ruled ----------------------------------------------------------------- After three amended complaints, a class must again revise claims that tailgate panels crack on 2002-05 Ford Explorers and Mercury Mountaineers, and on 2003-05 Lincoln Aviators, reports Courthouse News Service, citing a federal court ruling. The case is In Re Ford Tailgate Litigation, Case No. 11-CV-2953- RS, in the U.S. District Court for the Northern District of California, San Francisco Division. GAF BUILDING: Sold Defective Elk Cross Timbers Decking, Suit Says ----------------------------------------------------------------- Frederick C. Robertie, and Veronica B. Robertie, individually and on behalf of all others similarly situated v. GAF Building Materials Corp., Case No. 4:14-cv-00145-FL (E.D.N.C., August 13, 2014) is brought on behalf of all other similarly situated persons and entities, who currently own GAF Elk Cross Timbers decking. The Plaintiffs allege that GAF's Cross Timbers Decking contain defects that allow water to penetrate and leak into the interior of structures and behind cladding, resulting in premature deterioration of building components and other physical damage to both the decking and the surrounding structure. GAF Building Materials Corporation is a Delaware corporation with its headquarters in Wayne, New Jersey. GAF is a leading manufacturer of residential exterior building products in North America. GAF designed, marketed, advertised, warranted, sold, distributed, and delivered Cross Timbers Decking in Indiana and throughout North Carolina and the United States. The Plaintiffs are represented by: Daniel K. Bryson, Esq. Scott C. Harris, Esq. Matthew E. Lee, Esq. WHITFIELD BRYSON & MASON LLP 900 W. Morgan Street Raleigh, NC 27603 Telephone: (919) 600-5000 Facsimile: (919) 600-5035 E-mail: dan@wbmllp.com scott@wbmllp.com matt@wbmllp.com GENERAL MOTORS: Sued Over Antifreeze Leakage in Chevrolet Cruze --------------------------------------------------------------- Sheilah Feliciano v. General Motors Company, Case No. 1:14-cv- 06374-AT (S.D.N.Y., August 11, 2014) arises from GM's alleged practice of engaging in unfair and deceptive trade practices in connection with the merchandising and sale of the Chevrolet Cruze. The Chevrolet Cruze has a serious mechanical defect that causes antifreeze to leak from the radiator, Ms. Feliciano alleges. She contends that the Antifreeze Leakage Defect can lead to mechanical troubles and can cause a malodorous smell in the passenger compartment. General Motors Company is a Delaware Corporation with its principal place of business in Detroit, Michigan. GM designs, manufactures, markets, distributes, and sells Chevrolet Cruzes in New York and throughout the United States. The Plaintiff is represented by: Paul C. Whalen, Esq. LAW OFFICES OF PAUL C. WHALEN, P.C. 768 Plandome Road Manhasset, NY 11030 Telephone: (516) 627-5610 E-mail: pcwhalen@gmail.com GENJI LLC: Obtains Initial Approval of "Thio" Suit Settlement ------------------------------------------------------------- Magistrate Judge Nathanael M. Cousins granted preliminary approval of a settlement in the case captioned NEN THIO, TJU TJIN LIEM and DENNY WIJAYA, individually and on behalf of all others similarly situated, Plaintiffs, v. GENJI, LLC, GENJI RETAIL SUPPORT, INC., GENJI, INC. and Doe 1 through and including Doe 10, Defendants, CASE NO. 12-CV-05756 NC, (N.D. Cal.). The Court granted preliminary approval of the settlement, and conditionally certified: * the class under Federal Rule of Civil Procedure 23 comprising of "[a]ll individuals employed within California as a Sushi Team Leader or Sushi Chef at any time from November 9, 2008 through the date of Preliminary Approval." * the collective action pursuant to Section 216(b) of the FLSA comprising of "[a]ll individuals employed within the United States as a Sushi Team Leader at any time from November 9, 2010 through the date of Preliminary Approval." The Court also approved appointment of Nen Thio, Tju Tjin Liem, and Denny Wijaya as class representatives for the Rule 23 class, and Thio and Liem as class representatives for the collective action class; and Alan Harris and Priya Mohan, Harris & Ruble, and David S. Harris, North Bay Law Group, as class counsel for the settlement classes. The $1,250,000 total settlement amount consists of two separate funds: the California payment and the FLSA payment. The total settlement amount will be used to pay: (1) attorneys' fees and costs of class counsel; (2) costs of settlement administration; (3) incentive payments to the class representatives; and (4) the PAGA payment, all subject to approval by the Court. The settlement agreement provides that the $150,000 FLSA payment will be allocated pro-rata among the collective action claimants based upon the number of hours of overtime worked as a Sushi Team Leader between the dates of November 9, 2010 and October 27, 2013, as compared to the total number of hours of time period. Under the terms of the settlement agreement, class counsel will apply for incentive awards to plaintiffs of $5,000, each, for their efforts in this case, which will be in addition to any payment plaintiffs may otherwise receive as class members. The Court will hold a final approval hearing on December 3, 2014, at 1:00 p.m. in Courtroom A, 15th Floor, U.S. District Court, 450 Golden Gate Avenue, San Francisco, California. A copy of Judge Cousin's August 7, 2014 order is available at http://is.gd/3LLQiLfrom Leagle.com. Nen Thio, Plaintiff, represented by Alan Dale Harris -- aharris@harrisandruble.com -- Harris & Ruble & David S. Harris, North Bay Law Group. Tju Tjin Liem, Plaintiff, represented by Alan Dale Harris, Harris & Ruble & David S. Harris, North Bay Law Group. Denny Wijaya, Plaintiff, represented by Alan Dale Harris, Harris & Ruble & David S. Harris, North Bay Law Group. Genji, LLC, Defendant, represented by Marlene S. Muraco -- mmuraco@littler.com -- Littler Mendelson & Elisa Nadeau -- ENadeau@littler.com -- Littler Mendelson, PC. Genji Retail Support, Inc, Defendant, represented by Marlene S. Muraco, Littler Mendelson & Elisa Nadeau, Littler Mendelson, PC. Genji, Inc, Defendant, represented by Marlene S. Muraco, Littler Mendelson & Elisa Nadeau, Littler Mendelson, PC. GLOBAL MARKETING: Faces "Walsh" Suit in Florida District Court -------------------------------------------------------------- Melanie Walsh, individually and on behalf of all others similarly situated v. Global Marketing Research Services, Inc., a Florida Corporation, and Anthony Diana, individually, Case No. 6:14-cv- 01290-GAP-KRS (M.D. Fla., August 11, 2014) is brought over restrictions on use of telephone equipment. The Plaintiff is represented by: Stefan Coleman, Esq. LAW OFFICES OF STEFAN COLEMAN, PLLC 201 S Biscayne Blvd., 28th Floor Miami, FL 33131 Telephone: (877) 333-9427 Facsimile: (888) 498-9827 E-mail: law@stefancoleman.com GOOGLE INC: Consumer Advocacy Group Objects to $8.5-Mil. Deal ------------------------------------------------------------- A federal judge should not let Google pay $8.5 million to settle multitrillion-dollar allegations over its leak of user information, a consumer advocacy group complained, reports Elizabeth Warmerdam at Courthouse News Service. The Center for Class Action Fairness, on behalf of objectors Melissa Holyoak and Theodore Frank, said "class members will see not one penny" of the settlement, which calls for the money to be donated to various nonprofits. Paloma Gaos led the class action, which claims that Google violated its privacy policy by sharing search queries with third parties without the user knowing or giving permission. The queries were included in referrer headers, which identify the page containing the link the user clicked on to request the webpage. Some of the information passed on to third parties can potentially offer clues to users' identities, the lawsuit said. The six cy pres organizations that will receive $6 million of the settlement are Carnegie Mellon University, World Privacy Forum, Chicago-Kent College of Law, Stanford Law, Harvard's Berkman Center and the AARP Foundation. Remaining funds would cover attorneys' fees, notice and administration costs, and incentive awards for the class representative. The settlement also pledges Google to disclose to users the way it treats queries entered into Google.com so that users can make informed choices about whether and how to use Google search. Holyoak and Frank's objection, entered on August 8, 2014, emphasizes that the complaint alleged "trillions of dollars in statutory damages on behalf of a class consisting of more than 100 million people, and then settled it for $8.5 million, of which the class members will not see one penny." Letting class members "recover through a claims-made process and/or a sampling lottery method" remains a practicable alternative, the objection states. The objectors also took issue with pre-existing relationships that some of the proposed cy pres recipients have with class counsel and Google. "Class counsel are alumni of several of the cy pres recipients," resulting in "the appearance of divided loyalties of class counsel," the 31-page filing states. Furthermore, "where the defendant is already an established donor to certain of the cy pres recipients, there is significant risk that the value of the settlement will be less beneficial to the class than it would appear," the objectors added. Notice to the class of the settlement was inadequate as well, the objectors claimed, saying that it failed to directly notify those class members for whom Google has contact information, thus depriving them of due process. "The settlement makes objecting or opting out of the settlement artificially and needlessly burdensome by requiring paper-mail printouts from a class of internet users," the objection states. If the settlement is approved, the objectors said the judge should strike the unreasonable request by class counsel for $2.125 million in attorneys' fees. Because a dollar that goes to a third party is less valuable than a dollar that goes directly to a class member, class counsel should not be awarded the 9th Circuit's 25 percent benchmark approach to settlements, according to the objection. "If this court endorses a rule that makes class counsel financially indifferent between a settlement that awards cash directly to class members and to a cy pres only settlement, the parties will always agree to the cy pres arrangement and unnamed class members will be permanently left out in the cold," the objectors said. The Objectors are represented by: Theodore H. Frank, Esq. CENTER FOR CLASS ACTION FAIRNESS 1718 M Street NW, No. 236 Washington, DC 20036 Telephone: (703) 203-3848 E-mail: tfrank@gmail.com The case is In re Google Referrer Header Privacy Litigation, Case No. 5:10-cv-04809-EJD, in the U.S. District Court for the Northern District of California, San Jose Division. GOOGLE INC: Privacy Suit Complaint Must Be Amended, Court Ruled --------------------------------------------------------------- A class must amend claims that Google provided third-party vendors with user information from its Google Wallet and Google Play apps, a federal judge ruled, reports Courthouse News Service. The case is Alice Svenson, individually and on behalf of all others similarly situated v. Google Inc., a Delaware Corporation, and Google Payment Corporation, a Delaware Corporation, Case No. 13-cv-04080-BLF, in the U.S. District Court for the Northern District of California, San Jose Division. GREATBANC TRUST: Money Manager Cherry-Picks Trades, Investors Say ----------------------------------------------------------------- A Chicago money manager cost his clients $2 million, which he pocketed himself, by cherry-picking securities trades after the fact, a class action claims in Illinois Federal Court, reports Jack Bouboushian at Courthouse News Service. Patricia Pomeroy and Enoch Anderson sued GreatBanc Trust Company, Capital Management Associates, Charles J. Dushek and his son, Charles S. Dushek, on Aug. 11. The plaintiffs were clients of Capital Management Associates, which managed their money in held GreatBanc accounts from 2003 to 2012. According to the lawsuit: "Charles Dushek Sr. is personal friends with management at GreatBanc. They would regularly attend social events together including parties that Charles Dushek Sr. and Marge Dushek threw at their luxury home." Given this close relationship, Dushek had a referral system with GreatBanc, and required his clients to deposit their money in a GreatBanc account. He also had at least five of his own accounts with the bank, and made day trades for his own benefit, according to the complaint. It adds: "GreatBanc, through its GreatBanc Master Account, permitted the Dusheks to make 'block' purchases without making a payment from specific individual accounts until trade had been allocated and settled. Trades entered by the defendants in the GreatBanc Master Account did not differentiate between purchases for the Dushek family accounts and purchases for other GreatBanc accounts. . . . "Use of the GreatBanc Master Account by the Dusheks allowed them to commingle client assets in unallocated trades with inadequate record keeping of the purchases." For almost a decade, the defendants abused this license to engage "in a fraudulent 'cherry-picking' scheme" by assigning profitable trades to the Dushek family accounts, and unprofitable trades to client accounts, the complaint states. "Instead of following industry standards and allocating trades at the point of sale, GreatBanc knowingly allowed and actively assisted Charles and Chas Dushek in allocating trades after several days had passed and the profitability of the trades had been determined," the class claims. From 2008 to 2012, the Dusheks allegedly made $2 million in profits using this scheme, and clients suffered a corresponding $2 million loss. "In 2011 alone, Charles Dushek Sr. used the cherry-picking scheme to obtain disbursements of up to ten times the amount of assets held in his personal GreatBanc account. "Many of the unfairly allocated trades were going through Charles and Marge Dushek's GreatBanc accounts with returns in those accounts being 25,000 percent or more over several years," the complaint states. The SEC charged Dushek with running a cherry-picking scheme in May 2013. It claimed that Dushek used the illicit profits to make mortgage payments on a 6,500-square-foot luxury home, to buy a Mercedes Benz SL550, membership in a luxury vacation resort, and vacations. The plaintiffs seek class certification, disgorgement, and damages for securities violations. The Plaintiffs are represented by: Vincent L. DiTommaso, Esq. DITOMMASO LUBIN 17W 220 22nd Street, Suite 410 Oakbrook Terrace, IL 60181 Telephone: (630) 333-0000 Facsimile: (630) 333-0333 E-mail: vdt@ditommasolaw.com HARBOR FREIGHT: Accused of Violating Song-Beverly Credit Card Act ----------------------------------------------------------------- Courthouse News Service reports that Harbor Freight will not process sales without first entering a customer's telephone number, violating the Song-Beverly Credit Card Act, a class claims. The case is Menoro Tan v. Harbor Freight Tools USA, in the Superior Court of the State of California for the County of Orange. HEARTLAND AUTOMOTIVE: Sued Over Unsolicited Advertising Calls ------------------------------------------------------------- Phillip Litchfield v. Heartland Automotive Services II, Inc., Case No. 1:14-cv-06228 (N.D. Ill., August 13, 2014) challenges Heartland's alleged practice of violating the Telephone Consumer Protection Act in furtherance of its marketing efforts by making unsolicited and unauthorized advertising calls to cellular phones without consent via an automatic dialing system. Heartland is a Delaware corporation headquartered in Irving, Texas. The Plaintiff is represented by: Vincent L. DiTommaso, Esq. Peter S. Lubin, Esq. John Auchter, Esq. DITOMMASO LUBIN P.C. 17W220 22nd Street, Suite 410 Oakbrook Terrace, IL 60181 Telephone: (630) 333-0000 Facsimile: (630) 333-0333 E-mail: vdt@ditommasolaw.com psl@ditommasolaw.com jauchter@ditommasolaw.com - and - Terrence Buehler, Esq. TOUHY, TOUHY & BUEHLER, LLP 55 W. Wacker Drive Suite 1400 Chicago IL, 60601 Telephone: (312) 372-2209 Facsimile: (312) 456-3838 E-mail: tbuehler@touhylaw.com HENRY MAYO: Removed "Vasserman" Suit to C.D. California ------------------------------------------------------- The class action lawsuit titled Vasserman v. Henry Mayo Newhall Memorial Hospital, Case No. BC549185, was removed from the Superior Court of the State of California for the County of Los Angeles to the U.S. District Court for the Central District of California (Los Angeles). The District Court Clerk assigned Case No. 2:14-cv-06245 to the proceeding. The lawsuit arises from labor-related issues. The Defendant is represented by: Michael S. Kun, Esq. EPSTEIN BECKER AND GREEN PC 1925 Century Park East, Suite 500 Los Angeles, CA 90067-2506 Telephone: (310) 556-8861 Facsimile: (310) 553-2165 E-mail: mkun@ebglaw.com HERTZ CORP: Managers Sue in Cal. Over Improperly Paid Bonuses ------------------------------------------------------------- Valerie Williams, an individual, on behalf of herself and all others similarly situated v. The Hertz Corporation, a Delaware corporation, Dollar-Thrifty Automotive Group, a Delaware corporation and Does 1 through 10, inclusive, Case No. 3:14-cv- 03661 (N.D. Cal., August 13, 2014) is brought on behalf of Hertz and Dollar-Thrifty managers, who were allegedly not properly paid bonuses which these managers earned and rely upon. The Hertz Corporation is a Delaware corporation headquartered in Estero, Florida, and is engaged in business in San Francisco County and throughout California. Dollar Thrifty Automotive Group is a Delaware corporation headquartered in Tulsa, Oklahoma, and is engaged in business in San Francisco County and throughout California. In November 2012, Hertz purchased Dollar-Thrifty. The Plaintiff is unaware of the true names and capacities of the Doe Defendants. The Plaintiff is represented by: Christopher J. Hamner, Esq. Amy T. Wootton, Esq. HAMNER LAW OFFICES, APC 555 W. 5th Street, 31st Floor Los Angeles, CA 90013 Telephone: (213) 533-4160 Facsimile: (213) 533-4167 E-mail: chamner@hamnerlaw.com awootton@hamnerlaw.com HOECHST CELANESE: Judge Allows Pollution Class Action to Proceed ---------------------------------------------------------------- Felicia Kitzmiller, writing for GoUpstate.com, reports that a class action pollution lawsuit by the Cannon's Campground community against Hoechst Celanese and other industrial companies will continue after a federal court judge denied a motion to dismiss the case. In the order issued on Aug. 5, Judge Timothy Cain rules in favor of plaintiff Jay Easler on several questions of law, and declines to issue a summary judgment on others. Judge Cain notes defendants have a heavy burden to bear when bringing a motion to dismiss, and while he directly refutes some statements made by defendants, he delays a decision on others and argues they are questions of fact to be decided later in the process. "When considering a motion to dismiss, the court should 'accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff,'" Judge Cain wrote in the order. In February, Mr. Easler filed suit against Hoechst Celanese and several companies that subsequently owned or operated on the same industrial site alleging companies released a list of chemicals, some known carcinogens, into the water system both by dumping into waterways and by seepage into the ground water. The suit claims the pollution has diminished property values and caused a variety of illnesses in residents over several decades. The suit seeks an injunction under federal environmental law, and damages under state laws regarding nuisance and negligence. Attorney Bert Louthian, whose law firm is working with the Harpootlian Law Firm to represent Mr. Easler, said the ruling means the case will continue, and he expects a scheduling order with a preliminary trial date to be issued "fairly quickly." Mr. Louthian declined to comment further, citing the pending litigation. A spokesman for Hoechst Celanese also declined to comment, citing pending litigation, other than to say "We are vigorously defending our position." Most of the defendants joined in a motion to dismiss by attorneys for Hoechst Celanese who argued Mr. Easler's case should be dismissed because he hadn't suffered harm from the alleged pollution, as required by the federal Resource Conservation and Recovery Act, and the medical monitoring program sought in the suit is not a permissible resolution under the law. Judge Cain's order rules it is not necessary for Mr. Easler to have already been harmed, but his demonstration of imminent impending harm is sufficient to bring the case. Judge Cain notes Mr. Easler's complaint "painstakingly details" in 58 pages "the site's history of pollution, including the exact chemicals discharged and where those chemicals have been found in the surrounding area . . . The clear presumption from the complaint's allegations is that over the years, the contamination from the site has migrated and continues to migrate toward Cannon's Campground and Easler's property." In the permissibility of medical monitoring under the Resource Conservation and Recovery Act, Cain states courts have ruled both ways depending on the specifics of the case, and arguments for and against the program should be heard. "The court finds only that Easler's claim for medical monitoring is not subject to summary dismissal," the order states. "The court offers no opinion at this point in the litigation as to whether it will withstand future scrutiny or prove an appropriate remedy . . ." The motion to dismiss also seeks to rebuff Mr. Easler's claim under state law by again stating no actual harm had come to Mr. Easler's property. "The court finds these arguments unavailing, especially at the motion to dismiss stage," Judge Cain wrote. ". . . As nuisance and negligence claims are both fact-intensive inquiries, the court is not convinced to discard these claims . . ." Attorneys for Hoechst Celanese also argued Mr. Easler had exceeded the three-year statute of limitations to bring state claims because the complaint notes the community first became aware of the problem during a 2010 series done by the local television news. Judge Cain, however, ruled the motion to dismiss did not demonstrate Mr. Easler or anyone else in the community was provided enough information by the television series to trigger the statute of limitations, and he declined to address the issue "at this juncture." IMPAX LABORATORIES: Sued Over Quality Control at Taiwan Facility ---------------------------------------------------------------- Linus Aruliah, Individually and On Behalf of All Others Similarly Situated v. Impax Laboratories, Inc., Larry Hsu, G. Frederick Wilkinson, and Bryan M. Reasons, Case No. 3:14-cv-03673 (N.D. Cal., August 13, 2014) alleges that throughout the Class Period, the Defendants made materially false and misleading statements regarding quality control matters at the Company's Taiwan production facility. Headquartered in Hayward, California, Impax is a specialty pharmaceutical company engaged in the development, manufacture and marketing of bio-equivalent pharmaceutical products in addition to the development of branded products. The Individual Defendants are directors and officers of the Company. The Plaintiff is represented by: Lionel Z. Glancy, Esq. Michael Goldberg, Esq. Robert V. Prongay, Esq. GLANCY BINKOW & GOLDBERG LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 Facsimile: (310) 201-9160 E-mail: lglancy@glancylaw.com mmgoldberg@glancylaw.com rprongay@glancylaw.com - and - Jeremy Alan Lieberman, Esq. Francis P. McConville, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (212) 661-8665 E-mail: jalieberman@pomlaw.com fmcconville@pomlaw.com - and - Patrick V. Dahlstrom, Esq. POMERANTZ LLP 10 South La Salle Street, Suite 3505 Chicago, IL 60603 Telephone: (312)377-1181 Facsimile: (312)377-1184 E-mail: pdahlstrom@pomlaw.com IMPERIAL METALS: Faces Class Action Over Mount Polley Tailings -------------------------------------------------------------- Siskinds LLP on Aug. 7 announced the commencement of an investor class action against Imperial Metals Corporation and certain of its directors, officers and related parties. The action relates to the circumstances surrounding the failure of the tailings facilities at Imperial's Mount Polley gold and copper mine near Likely, British Columbia on August 4, 2014. The action is brought to recover losses suffered by persons who acquired common shares or notes of Imperial between August 15, 2011 and August 4, 2014. If you acquired shares or notes of Imperial Metals Corporation between August 15, 2011 and August 4, 2014, please complete the online information form at http://www.classaction.ca/joinaction.aspx?action=impmetal Anyone with inquiries regarding this proceeding is invited to contact Nicole Young at Siskinds LLP at 1-800-461-6166, ex 2380 or nicole.young@siskinds.com About Siskinds LLP Siskinds LLP -- http://siskinds.com/-- is a full-service law firm headquartered in London, Ontario. Its class actions team has recovered over $450 million for investors over the last 10 years. In each of 2010, 2011, and 2013, Siskinds has been ranked the top Canadian firm in the SCAS 50, an annual global ranking of the world's 50 leading securities class action law firms published by Securities Class Action Services, a unit of Institutional Shareholder Services (ISS). JAG INDUSTRIAL: Suit Seeks Damages for Unpaid Overtime Under FLSA ----------------------------------------------------------------- Jeremy Hughes v. Jag Industrial Services, Inc., a Delaware corporation, Douglas Huff, and Tim Jagielski, Case No. 3:14-cv- 02892-M (N.D. Tex., August 12, 2014) seeks damages for unpaid overtime, liquidated damages, and a reasonable attorney's fee and costs pursuant to the Fair Labor Standards Act. Jag Industrial Services, Inc., is a Delaware corporation and maintains offices in Alpharetta, Georgia; Jonesville, Michigan; Erie, Pennsylvania; Bremerton, Washington; and Fairhope, Alabama. Jag provides Turnkey Project Management skilled labor and quality assurance for marine repair, shipbuilding and a wide range of industrial manufacturing projects. Jag provides services throughout the United States and has supported multiple projects abroad. The Individual Defendants acted directly or indirectly in the interest of Jag. The Plaintiff is represented by: Charles L. Scalise, Esq. Daniel B. Ross, Esq. ROSS LAW GROUP 1104 San Antonio Street Austin, TX 78701 Telephone: (512) 474-7677 Facsimile: (512) 474-5306 E-mail: Charles@rosslawgroup.com - and - Vijay A. Pattisapu, Esq. 540 East Pleasant Run Road Desoto, TX 75115 Telephone: (214) 716-4597 Facsimile: (855) 867-4455 JOURNAL COMMUNICATIONS: Being Sold for Too Little, Suit Claims -------------------------------------------------------------- Courthouse News Service reports that directors are selling Journal Communications too cheaply through an unfair process to Scripps Media, in a stock swap, shareholders claim in a class action in Milwaukee County Court. JUDY'S HOMES: Fails to Provide Itemized Wage Reports, Suit Claims ----------------------------------------------------------------- Nestor Esman, Elsa Esman, Woodrow Esman, Aurora Salazar, Josefina Bentulan and Rey L. Mateo v. Judy's Homes for the Elderly, Inc., Juvenalia Roias, Maria Roias, Michelle Roias and Mercy Roias- Moreira, Case No. 3:14-cv-03675 (N.D. Cal., August 13, 2014) alleges that the Defendants knowingly and intentionally failed to provide the Plaintiff and other similarly situated employees with accurate, itemized wage statements in compliance with the Labor Code. Judy's Homes for the Elderly, Inc., is a California corporation headquartered in San Mateo County. The Individual Defendants are residents of San Mateo County. The Plaintiffs are represented by: Tomas E. Margain, Esq. Huy Tran, Esq. Phung H. Truong, Esq. JUSTICE AT WORK LAW GROUP 84 West Santa Clara Street, Suite 790 San Jose, CA 95113 Telephone: (408) 317-1100 Facsimile: (408) 351-0105 E-mail: Tomas@JAWLawGroup.com Huy@JAWLawGroup.com Phung@JAWLawGroup.com KIMBERLY-CLARK: Complaint Over Toilet Paper Must Be Amended ----------------------------------------------------------- A woman making a federal case out of the "flushability" of Kimberly-Clark disposable wipes must amend her consumer fraud claims, reports William Dotinga at Courthouse News Service, citing a federal court ruling. Jennifer Davidson's 2013 class action against Kimberly-Clark and its subsidiaries is underway in the Northern District of California after the manufacturer claimed federal jurisdiction under the Class Action Fairness Act. Davidson said she bought the Scotts Naturals Flushable Moist Wipes from a San Francisco supermarket based on her belief that they were "specially designed to be suitable for flushing down her toilet without causing problems in her plumbing or at the water treatment plant." She "began to seriously doubt that they were truly flushable," however, after "several uses of the wipes." Though Davidson stopped using the wipes and did not purchase additional flushable Kimberly-Clark products, she said the company falsely advertises four of its products -- including Cottonelle Fresh Care wipes and cleansing cloths, Huggies Pull-Ups Flushable Moist Wipes, U by Kotex Refresh wipes and the aforementioned Scotts product -- as flushable, despite causing problems in septic tank and at sewage treatment plants. In its bid to dismiss the complaint, Kimberly Clark said Davidson's injury is abstract since nothing bad happened to her when she flushed the wipes. U.S. District Judge Phyllis Hamilton acknowledged on August 8, 2014, however, that at this stage of the case, Davidson sufficiently pleaded that she paid a premium for the wipes over normal toilet paper on the allegedly false promise that the wipes were indeed flushable. "Here, plaintiff has not alleged that the Scott Naturals product did not work as promised, or that her own pipes or septic system or her local waste water treatment plant was harmed by her use of the wipes," Hamilton wrote. "Plaintiff has, however, alleged that she suffered economic harm because she would not have paid a premium for the Scott Naturals wipes had defendants not misrepresented the product as 'flushable.' Whether that was in fact a misrepresentation cannot be determined at this stage of the case, but the court finds that plaintiff has satisfied both Article III and statutory standing as to that one product." Davidson needs to show that she relied on something more than the wipes' packaging to show fraud in advertising, the ruling continues. "Here, plaintiff does not allege that she saw any of defendants' advertisements or websites -- let alone that she relied on them in deciding to make her purchase," Hamilton wrote. "She alleges only that she based her decision to purchase the Scott Naturals wipes on the representation on the package that the wipes were 'flushable.' Thus, as to the element of reliance, plaintiff has not pled facts showing that she relied on any representation except as to the 'flushable' designation on the Scott Naturals packaging. In addition, plaintiff has not alleged facts showing how she came to believe that the Scott Naturals wipes were not 'flushable.' She does not allege that she was unable to flush the product down the toilet, or that the product caused any problems with her pipes, just that after several uses of the wipes she 'began to seriously doubt that they were truly flushable.'" The judge declined to get involved at this stage with what "flushable" means, whether the wipes should totally disperse by the time they arrive at the sewage-treatment facility, and if Kimberly-Clark should put that the wipes "can be flushed even if not suitable for flushing" on the packaging as Davidson suggested. "That argument is based on a premise that, if not exactly faulty, is at a minimum unsupported," Hamilton wrote. "Strictly speaking, something is 'flushable' if it is 'able to be flushed.' Plaintiff's argument appears to be that the definition of 'flushable' necessarily includes what happens to the item that is flushed, from the time it is flushed until it reaches its ultimate destination (septic system or waste-water treatment plant). Because of the dispute regarding the definition of 'flushable,' the court is unable to determine whether the 'omissions' claim is or is not viable at this stage of the litigation." References that Davidson made to Internet articles and websites discussing the harm caused by flushable wipes to municipal treatment plants must be stricken as well, since Davidson never said she relied on the articles or even read them before deciding to stop using the wipes, the court found. Davidson has 28 days to fix her complaint, Hamilton concluded. The case is Jennifer Davidson v. Kimberly-Clark Corporation, Case No. C 14-1783 PJH, in the U.S. District Court for the Northern District of California. LONDON SILVER: Accused of Violating Antitrust Laws in New York -------------------------------------------------------------- American Precious Metals Ltd. and Steven E. Summer, on behalf of themselves and all others similarly situated v. The London Silver Market Fixing, Ltd., The Bank of Nova Scotia, Deutsche Bank AG, HSBC Holdings PLC, John Does 1-50, HSBC Bank PLC and HSBC Bank U.S.A., Case No. 1:14-cv-04724-DLI-MDG (E.D.N.Y., August 8, 2014) alleges violations of the antitrust laws. The Plaintiffs are represented by: Patricia I. Avery, Esq. WOLF POPPER LLP 845 Third Avenue, 12th Floor New York, NY 10022 Telephone: (212) 759-4600 Facsimile: (212) 486-2093 E-mail: pavery@wolfpopper.com LYFT INC: Drivers Must Amend Wage and Hour Complaint, Court Ruled ----------------------------------------------------------------- California-based drivers for the ride-sharing service Lyft cannot represent workers outside the Golden State in a labor class action, reports Philip A. Janquart at Courthouse News Service, citing a federal court ruling. Lyft, a Delaware corporation headquartered in San Francisco, uses smartphone software to connect passengers with rides. The company operates in several states. Lead plaintiffs Patrick Cotter and Alejandra Maciel brought a federal class action against Lyft in Oakland, Calif., alleging the company inappropriately classifies drivers as independent contractors. The misclassification, they say, allows the company to skirt state minimum wage and wage statement laws. "Because drivers are in fact Lyft employees, this action also challenges Lyft's policy of taking 20 percent of gratuity payments given by riders to Lyft's drivers, an illegal practice under California Labor Code . . . which prohibits an employer from taking any amount of gratuity given to an employee," a second- amended complaint from December 2013 states. U.S. District Judge Vince Chhabria struck the class allegations on August 7, 2014, however, because California law does not apply to people working exclusively in other states. "Because California's wage and hour provisions do not create a cause of action for work performed exclusively outside the state, and because parties cannot create a cause of action under the wage and hour statutes where none exist, the plaintiffs cannot seek to enforce those provisions on behalf of a nationwide class," Chhabria wrote. A "choice of law" provision contained within the employment agreement does not apply because "although the agreement will likely be used as evidence to support their statutory claims, their claims do not arise out of the contract, involve the interpretation of any contract terms, or otherwise require there to be a contract in the first place," the nine-page ruling states. The plaintiffs have 21 days to amend the struck-out claims. The case is Patrick Cotter, et al. v. Lyft, Inc., Case No. 3:13cv04065VC, in the U.S. District Court for the Northern District of California. MARK BOLAND: Faces Class Action Over Hepatitis, HIV Tests --------------------------------------------------------- David Wenner, writing for PennLive.com, reports that a class action lawsuit has been filed against a Lower Paxton Township plastic surgeon who recently wrote to patients to recommend they be tested for Hepatitis and HIV. According to the lawsuit filed in Dauphin County Court of Common Pleas, Dr. Mark Boland recently mailed the letters after the Pennsylvania Department of Health "expressed concern" about whether some of the practice's infection control practices were adequate. The lawsuit filed by McCarthy Weisberg Cummings, P.C. of Harrisburg says the plaintiffs are aware of no one becoming ill. However, it seeks reimbursement for the cost of the tests. The law firm's Derrek Cummings said the tests cost $499.70 at the testing facility where patients were advised to obtain them. Boland's letter says bills will be submitted to the patient's health insurer, and lists sources of possible financial assistance for those without insurance. Mr. Cummings said the plaintiffs also will seek damages for emotional suffering, although it's too early to name an amount. He didn't know how many people received letters. A spokeswoman for the Pennsylvania Department of Health said it "is unable to provide details regarding the investigation and there is no threat to the general public." She said any patients with concerns should call Dr. Boland's toll free hotline at 1-844- 420-2971. His letter said "We have fully evaluated our procedures and enhanced our protocols in compliance with the most current recommendations of the Centers for Disease Control and Prevention." Mr. Cummings said it was too early to know what portion of an award or settlement his firm would request to cover legal fees. In personal injury cases, which are handled differently than class action suits, lawyers typically receive between about 33 percent and 40 percent of the award. The letter from Dr. Boland recommends tests for Hepatitis C and B, and for HIV, which is the virus that causes AIDs. MARVEL ENTERTAINMENT: Former Intern Files Wage Class Action ----------------------------------------------------------- Travis Reilly, writing for The Wrap, reports that a former intern filed a class action lawsuit against Marvel Entertainment, LLC on Aug. 5 in the Supreme Court of the State of New York, claiming he was "wrongfully" classified and unfairly denied "minimum wages" while working for the company. According to the documents obtained by TheWrap, Kenneth Jackson of Lancaster, Pennsylvania, says he worked at Marvel from August 2008 through December of 2008. During that four-month period, Jackson claims the company incorrectly classified him as an intern and now owes him back pay. Mr. Jackson's motion seeks to "recover unpaid minimum wages owed" and extends to "all similarly situated persons who are presently or formerly employed by Marvel Entertainment, LLC." The documents claim all of Marvel's New York interns were subjected to the same faulty "employment practices, policies, and procedures" as Jackson, and includes "in excess of 100 individuals." The lawsuit says, "during his employment with Marvel, the Named Plaintiff worked from approximately 9:00 a.m. to 5:00 p.m. five days per week." Mr. Jackson is seeking "all compensation, including minimum wages, which [he was] deprived," as well as court costs and attorneys fees, the documents say. According to New York labor law, its minimum wage structure is as follows: (1) $7.15 per hour on and after January 1, 2007; (2) $7.25 per hour on and after July 24, 2009; (3) $8.00 per hour on and after December 31, 2013; (4) $8.75 per hour on and after December 31, 2014, according to the lawsuit. Marvel Entertainment oversees both its Marvel Comics subsidiary and Marvel Studios. In 2009 the Walt Disney Company purchased the company for $4.64 billion dollars. MEDTRONIC INC: Removed "Hattel" Suit to Tennessee District Court ---------------------------------------------------------------- The lawsuit captioned Hattel, et al. v. Medtronic, Inc., et al., Case No. CT-003447-14, was removed from the Circuit Court of Shelby County, Tennessee, for the Thirtieth Judicial District at Memphis, to the United States District Court for the Western District of Tennessee. The District Court Clerk assigned Case No. 2:14-cv-02625-JTF-cgc to the proceeding. The Plaintiffs allege that they were injured by Plaintiff Julia Spurlock's physician's off-label use of Medtronic and Medtronic Sofamor Danek USA, Inc.'s Infuse(R) Bone Graft device. Infuse is a Class III medical device whose design, manufacturing method, and labeling were specifically approved by the Food and Drug Administration pursuant to the agency's Premarket Approval process. The Plaintiffs are represented by: Kevin J. Renfro, Esq. BECKER LAW OFFICE 9300 Shelbyville Rd., Suite 215 Louisville, KY 40222 Telephone: (502) 581-1122 E-mail: krenfro@beckerlaw.com The Defendants are represented by: Leo M. Bearman, Esq. Robert F. Tom, Esq. BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC First Tennessee Building 165 Madison Avenue, Suite 2000 Memphis, TN 38103 Telephone: (901) 526-2000 Facsimile: (901) 577-0818 E-mail: lbearman@bakerdonelson.com rtom@bakerdonelson.com - and - Andrew E. Tauber, Esq. MAYER BROWN, LLP 1999 K Street, NW Washington, DC 20006 Telephone: (202) 263-3324 Facsimile: (202) 263-5324 E-mail: atauber@mayerbrown.com - and - Daniel L. Ring, Esq. MAYER BROWN, LLP 71 S. Wacker Drive Chicago, IL 60606 Telephone: (312) 701-8520 Facsimile: (312) 706-8675 E-mail: dring@mayerbrown.com - and - Sean P. Fahey, Esq. PEPPER HAMILTON, LLP 3000 Two Logan Square Eighteenth and Arch Streets Philadelphia, PA 19103-2799 Telephone: (215) 981-4000 Facsimile: (215) 981-4750 E-mail: faheys@pepperlaw.com MONSTER BEVERAGE: "Marshall" Suit Transferred to C.D. California ---------------------------------------------------------------- The class action lawsuit titled Osie Marshall, et al. v. Monster Beverage Corporation, Case No. 3:14-cv-02203, was transferred from the U.S. District Court for the Northern District of California to the U.S. District Court for the Central District of California. The Central California District Court Clerk assigned Case No. 2:14-cv-06311-MMM-PLA to the proceeding. The Plaintiffs are represented by: Anthony Joshua Orshansky, Esq. Alexandria Rose Kachadoorian, Esq. COUNSELONE, PC 9301 Wilshire Boulevard, Suite 650 Beverly Hills, CA 90210 Telephone: (310) 277-9945 Facsimile: (424) 277-3727 E-mail: anthony@counselonegroup.com alexandria@counselonegroup.com The Defendant is represented by: David F. McDowell, Esq. Dan Edward Marmalefsky, Esq. Purvi G. Patel, Esq. MORRISON & FOERSTER LLP 707 Wilshiire Boulevard, Suite 6000 Los Angeles, CA 90017-3543 Telephone: (213) 892-5200 Facsimile: (213) 892-5454 E-mail: dmcdowell@mofo.com dmarmalefsky@mofo.com ppatel@mofo.com MONTEBELLO, CA: Bus Drivers File Class Action Over Meal Breaks -------------------------------------------------------------- Mike Sprague, writing for Whittier Daily News, reports that three bus drivers have filed a class-action lawsuit on behalf of an estimated 167 drivers, claiming the city has denied them their lawfully required meal breaks and rest breaks. "The city has been relying on a practice of claiming that multiple breaks that add up to 30 minutes meet the requirements under California law," said Hunter Pyle, attorney for drivers Rachel Burciaga, Cecilia Lopez and Ernesto Suazo, who filed the lawsuit on July 29. "The problem is the law is clear that the breaks have to be uninterrupted so that people will have a meaningful opportunity to get a break," Mr. Pyle said. Mr. Pyle said the city typically provides 10 six-minute breaks in an eight-hour shift, claiming the 60 minutes is more than the 30-minute meal and two 10-minute rest-breaks drivers are entitled to have. But you can't do much in six minutes, he said. "You can't do anything but run off the bus, run into a store, use the bathroom and grab a snack," Mr. Pyle said. "That's very different from a 30-minute break when you can relax and take care of personal business." The bus drivers are asking for one hour of pay for every day they missed a meal break and the same for missing a rest break, Mr. Pyle said. How many days still has to be determined, he said. Montebello City Administrator Francesca Tucker-Schuyler refused to comment on the lawsuit. "We -- the city -- haven't received the suit," Ms. Tucker-Schuyler said. "I don't know what the assertions are because we haven't been served." The lawsuit -- filed July 29 -- comes at a time when bus drivers and the city are at odds over pay. During the last year the city has paid its nontransit employees' share of their pension costs but not for bus drivers, mechanics and service operators. The latter still pay what amounts to 8 percent of their pay. Ms. Tucker-Schuyler said transit employees are paid from a different pot of money than what provides for the rest of the city. The bus system receives its money from bus riders as well as special state, federal and Los Angeles County funds. Ms. Lopez, who is chairwoman for the Local 1701 of the Montebello SMART United Transportation Union, said the city's policy on breaks creates hardships for the drivers. "Our schedule is so crunched and with traffic and other incidents, you go without a meal for five to six hours," she said. "You can't get out and stretch your legs. It causes neck, back and kidney problems." MRS BPO: Accused of Violating Fair Debt Collection Act in N.Y. -------------------------------------------------------------- Yitzchok Stern, on behalf of himself and all other similarly situated consumers v. MRS BPO, L.L.C., Case No. 1:14-cv-04772 (E.D.N.Y., August 11, 2014) alleges violations of the Fair Debt Collection Practices Act. The Plaintiff is represented by: Maxim Maximov, Esq. MAXIM MAXIMOV, LLP 1701 Avenue P Brooklyn, NY 11229 Telephone: (718) 395-3459 Facsimile: (718) 408-9570 E-mail: m@maximovlaw.com NATIONAL COLLEGIATE: Parties Seek Clarification of Court Order -------------------------------------------------------------- Maria Dinzeo, writing for Courthouse News Service, reports that attorneys for a class of former college athletes joined with the NCAA in asking Chief U.S. Judge Claudia Wilken on August 12, 2014, to clarify her order prohibiting payments to players for the use of their names, images and likenesses. The injunction issued on August 8, 2014, prevents the NCAA "from enforcing any rules or bylaws that would prohibit its member schools and conferences from offering their FBS [Football Bowl Subdivision] football or Division I basketball recruits a limited share of the revenues generated from the use of their names, images, and likenesses in addition to a full grant-in-aid." Wilken added: "the injunction does not [yet] prohibit the application of the current NCAA rules with respect to student- athletes who were enrolled or will enroll in college before July 1, 2016." Former UCLA star Ed O'Bannon led 20 student athletes in a 2009 class action against the governing body for college athletics for the right to a share in the television broadcast revenue for their names, images and likenesses. A two-week bench trial occurred in June. Lawyers for the players disagree with the NCAA's belief that the injunction is limited only to prospective student athletes who enroll in college on or after July 1, 2016. In a motion for clarification filed on August 12, 2014, Sathya Gosselin with Hausfeld LLP wrote: "That exclusion of thousands of current student-athletes (operating under one-year renewable scholarships or multi-year scholarships) is plainly inconsistent with the court's injunction, which twice identifies the 'licensing or use of prospective, current, or former' student-athlete NILs, as even the NCAA acknowledges." "And it could lead to inadvertent disparities among teammates, despite the court's repeated emphasis on equal sharing among student-athletes," Gosselin added. The injunction should begin applying to student-athletes during the next recruiting cycle, which begins on Aug. 1, 2015, the motion states. The Plaintiffs are represented by: Michael D. Hausfeld, Esq. Hilary K. Scherrer, Esq. Sathya S. Gosselin, Esq. Swathi Bojedla, Esq. HAUSFELD LLP 1700 K Street, NW, Suite 650 Washington, DC 20006 Telephone: (202) 540-7200 Facsimile: (202) 540-7201 E-mail: mhausfeld@hausfeldllp.com hscherrer@hausfeldllp.com sgosselin@hausfeldllp.com sbojedla@hausfeldllp.com - and - Michael P. Lehmann, Esq. Bruce J. Wecker, Esq. HAUSFELD LLP 44 Montgomery St., 34th Floor San Francisco, CA 94104 Telephone: (415) 633-1908 Facsimile: (415) 358-4980 E-mail: mlehmann@hausfeldllp.com bwecker@hausfeldllp.com - and - William A. Isaacson, Esq. BOIES, SCHILLER & FLEXNER LLP 5301 Wisconsin Ave. NW Washington, DC 20015 Telephone: (202) 237-5607 Facsimile: (202) 237-6131 E-mail: wisaacson@bsfllp.com - and - Renae D. Steiner, Esq. HEINS MILLS & OLSON PLLC 310 Clifton Avenue Minneapolis, MN 55403 Telephone: (612) 338-4605 Facsimile: (612) 338-4605 E-mail: rsteiner@heinsmills.com - and - Seth A. Rosenthal, Esq. VENABLE LLP 575 7th Street, NW Washington, DC 20004 Telephone: (202) 344-4741 Facsimile: (202) 344-8300 E-mail: sarosenthal@venable.com - and - Steven J. Greenfogel, Esq. LITE DEPALMA GREENBERG LLC 1521 Locust Street - 7th Floor Philadelphia, PA 19102 Telephone: (267) 519-8306 Facsimile: (215) 569-0958 E-mail: sgreenfogel@litedepalma.com The case is Edward C. O'Bannon, Jr. on behalf of himself and all others similarly situated v. National Collegiate Athletic Association (NCAA), et al., Case No. 4:09-cv-3329 CW, in the U.S. District Court for the Northern District of California, Oakland Division. NATIONAL HOCKEY: Court Says Antitrust Immunity Excludes TV Rights ----------------------------------------------------------------- Major League Baseball's and the National Hockey League's antitrust exemptions do not extend to TV broadcast rights, a federal judge ruled, refusing to dismiss a class action from fans who say broadcasters' anticompetitive rules prevent them from watching, or force them to pay more, to watch "out-of-market" games, according to Nick Divito at Courthouse News Service. U.S. District Judge Shira A. Scheindlin found that the lawsuits, filed in Manhattan Federal Court in 2012 and later consolidated, have "produced sufficient evidence that a reasonable fact-finder" could find Comcast and DirecTV to be "complicit in the alleged conspiracy." In a 59-page ruling on Aug. 8, Scheindlin allowed the lawsuit to proceed despite the leagues' attempt to invoke the antitrust exemption known as the Sports Broadcasting Act, passed by Congress in 1961. The Act created an antitrust exemption for certain types of professional sports broadcasting agreements, "particularly league-wide contracts for over-the-air broadcasts." Scheindlin found that in Flood v. Kuhn, the U.S. Supreme Court in 1972 "expressly questioned the logic of the baseball exemption, calling it 'at best of dubious validity' and refusing to extend it to other professional sports.'" She added that if the court were considering the question of baseball "'for the first time upon a clean slate,' it would not adopt an antitrust exemption.'" "I therefore decline to apply the exemption to a subject that is not central to the business of baseball, and that Congress did not intent to exempt -- namely baseball's contracts for television broadcast rights," Scheindlin wrote. The consolidated lawsuits accuse the Office of the Commissioner of Baseball and various baseball and hockey teams, several sports networks, and specifically Comcast and DirecTV, of conspiring to eliminate competition over the airwaves and on the Internet to restrict programming and hang on to their regional monopolies. The structure of the "territorial broadcasting system is largely uncontested," Scheindlin found. By agreement with their leagues, each sports club licenses its games to be aired only in certain each teams' general area, but not nationally. What cannot be broadcast outside of a certain territory is then blacked out, in accordance with the agreements. Fans can watch these "out-of-market" games only when certain games with broadcasters such as ESPN or Fox are contracted to be broadcast nationally. The second way to watch "out-of-market" sporting events is through the leagues' packages for TV and the Internet, which are purchasable through Comcast and DirecTV. However, such purchases require the buyer to pay for an entire slate of out-of-market games, whether they want them or not. Such packages "do not show in-market games to avoid competition," Scheindlin said. "Additionally, the territorial broadcast restrictions allow each [broadcaster] to largely avoid competing with out-of-market games produced by other RSNs [regional sports networks]." Meanwhile, Internet streaming of in-market games "remains largely unavailable to consumers," the judge said. The leagues tried to argue that the federal Curt Flood Act reveals a "congressional consensus that sports broadcasting agreements are covered by the exemption, and that using it allows for 'league expansion, franchise location, the amateur draft and broadcast rights.'" But Scheindlin nor persuaded, saying a "cost estimate is not persuasive evidence of congressional intent." The judge said that an expert testifying on plaintiffs' behalf attested to the fact that consumers pay more for live games but have fewer choices available than if the restrictions were lifted. She also seemed to agree that lifting the restrictions would drop package-prices by half. The leagues argued that the territorial restrictions maintain a competitive balance. But Scheindlin saw things both ways: "On the one hand, the restrictions protect less popular clubs from competition with more popular teams in their home" turfs, she said. "On the other hand, the system requires small market teams to refrain from broadcasting in larger, more populous markets, while big market teams forego only smaller, less populous markets. "It is not immediately clear whether the restrictions help or harm competitive balance overall," she wrote. She refused all four of the leagues' motions for summary judgment, and set a conference for Aug. 20 at 4:30 p.m. The Plaintiffs are represented by: Edward A. Diver, Esq. Howard I. Langer, Esq. Peter E. Leckman, Esq. LANGER GROGAN & DIVER, P.C. Three Logan Square, Suite 4130 1717 Arch Street Philadelphia, PA 19103 Telephone: (215) 320-5663 E-mail: ndiver@langergrogan.com hlanger@langergrogan.com pleckman@langergrogan.com - and - Kevin M. Costello, Esq. Gary E. Klein, Esq. KLEIN KAVANAGH COSTELLO, LLP 85 Merrimac St., 4th Floor Boston, MA 02114 Telephone: (617) 357-5034 E-mail: costello@kkcllp.com klein@kkcllp.com - and - Michael Morris Buchman, Esq. John A. Ioannou, Esq. POMERANTZ HAUDEK BLOCK GROSSMAN & GROSS LLP 600 Third Avenue New York, NY 10016 Telephone: (212) 661-1100 - and - Alex Schmidt, Esq. Mary Jane Fait, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 270 Madison Avenue New York, NY 10016 Telephone: (212) 545-4600 E-mail: schmidt@whafh.com - and - Robert LaRocca, Esq. KOHN, SWIFT & GRAF, P.C. One South Broad Street, Suite 2100 Philadelphia, PA 19107 Telephone: (215) 238-1700 E-mail: rlarocca@kohnswift.com - and - J. Douglas Richards, Esq. Jeffrey Dubner, Esq. COHEN, MILSTEIN, SELLERS & TOLL, PLLC 88 Pine Street New York, NY 10005 Telephone: (212) 838-7797 E-mail: jdubner@cohenmilstein.com drichards@cohenmilstein.com Defendants Office of the Commissioner of Baseball, Major League Baseball Enterprises Inc., MLB Advanced Media L.P., MLB Advanced Media, Inc., Athletics Investment Group, LLC, The Baseball Club of Seattle, L.L.P., Chicago White Sox, Ltd., Colorado Rockies Baseball Club, Ltd., The Phillies, Pittsburgh Baseball, Inc., and San Francisco Baseball Associates, L.P., are represented by: Bradley I. Ruskin, Esq. Carl Clyde Forbes, Esq. Helene Debra Jaffe, Esq. Jennifer R. Scullion, Esq. Robert Davis Forbes, Esq. PROSKAUER ROSE LLP 11 Times Square New York, NY 10036 Telephone: (212) 969-3465 E-mail: bruskin@proskauer.com CForbes@proskauer.com hjaffe@proskauer.com jscullion@proskauer.com - and - Thomas J. Ostertag, Esq. SENIOR VICE PRESIDENT AND GENERAL COUNSEL OFFICE OF THE COMMISSIONER OF BASEBALL 245 Park Avenue New York, NY 10167 Telephone: (212) 931-7855 Defendants National Hockey League, NHL Enterprises, L.P., NHL Interactive Cyberenterprises, LLC, Chicago Blackhawk Hockey Team, Inc., Comcast-Spectacor, L.P., Hockey Western New York LLC, Lemieux Group, L.P., Lincoln Hockey LLC, New Jersey Devils LLC, New York Islanders Hockey Club, L.P. and San Jose Sharks, LLC are represented by: Shepard Goldfein, Esq. James A. Keyte, Esq. Paul M. Eckles, Esq. Matthew M. Martino, Esq. SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP Four Times Square New York, NY 10036-6522 Telephone: (212) 735-3000 E-mail: shepard.goldfein@skadden.com james.keyte@skadden.com peter.neckles@skadden.com matthew.martino@skadden.com Defendants DIRECTV, LLC, DIRECTV Sports Networks, LLC, DIRECTV Sports Net Pittsburgh, LLC a/k/a Root Sports Pittsburgh, DIRECTV Sports Net Rocky Mountain, LLC a/k/a Root Sports Rocky Mountain, and DIRECTV Sports Net Northwest, LLC a/k/a Root Sports Northwest are represented by: Andrew E. Paris, Esq. Joann M. Wakana, Esq. Louis A. Karasik, Esq. ALSTON & BIRD LLP 333 South Hope Street Los Angeles, CA 90071 Telephone: (213) 576-1000 E-mail: drew.paris@alston.com lou.karasik@alston.com Defendants Comcast Corporation, Comcast SportsNet Philadelphia, L.P., Comcast SportsNet Mid-Atlantic L.P., Comcast SportsNet California, LLC, and Comcast SportsNet Chicago, LLC, are represented by: Arthur J. Burke, Esq. James W. Haldin, Esq. DAVIS POLK & WARDWELL 450 Lexington Avenue New York, NY 10017 Telephone: (212) 450-4000 E-mail: arthur.burke@davispolk.com james.haldin@davispolk.com For Yankees Entertainment and Sports Networks, LLC and New York Yankees Partnership are represented by: Jonathan D. Schiller, Esq. Alan Vickery, Esq. Christopher Duffy, Esq. BOIES, SCHILLER & FLEXNER LLP 575 Lexington Avenue, 7th Floor New York, NY 10022 Telephone: (212) 446-2300 E-mail: jschiller@bsfllp.com avickery@bsfllp.com cduffy@bsfllp.com Defendants The Madison Square Garden Company and New York Rangers Hockey Club are represented by: Stephen R. Neuwirth, Esq. Richard I. Werder, Jr., Esq. Ben M. Harrington, Esq. QUINN EMANUEL URQUHART OLIVER AND SULLIVAN LLP 51 Madison Avenue, 22nd Floor New York, NY 10010 Telephone: (212) 849-7000 E-mail: stephenneuwirth@quinnemanuel.com rickwerder@quinnemanuel.com The two cases are Thomas Laumann, Robert Silver, Garrett Traub, and Da Yid Dillon, representing themselves and all other similarly situated v. National Hockey League, et al., Case No. 12-cv-1817 (SAS), in the U.S. District Court for the Southern District of New York; and Marc Lerner, Derek Rasmussen, and Garrett Traub, representing themselves and all other similarly situated v. Office of the Commissioner of Baseball, et al., Case No. 12-cv-3704 (SAS), in the U.S. District Court for the Southern District of New York. NEW YORK CITY, NY: Falsely Arrested Innocent Vendor, Suit Claims ---------------------------------------------------------------- Ousseynou Lam v. The City of New York, Police Officer/Detective Del La Mota Shield No. 943137, John and/or Jane Doe Numbers 1-10 and Nogaye Lo, Case No. 1:14-cv-06328-ER (S.D.N.Y., August 8, 2014) alleges that New York City failed to stop the illegal conduct of its officers and agents in falsely arresting innocent males for allegedly harassing and assaulting females even though the evidence and quick and timely investigation or proper police training would show to the contrary. The City of New York is a municipal corporation duly organized and existing under and by virtue of the laws of the state and city of New York. The City, its agents, servants and employees operated, maintained and controlled the Police Department of the City of New York, and all police officers thereof, including the Defendant Police Officers. Nogaye Lo is a resident of the city and state of New York being a licensed street Vendor. She is a woman, who had been harassing him for quite some time and he had a restraining order against her, Mr. Lam tells the Court. The Plaintiff is represented by: Ronald Paul Hart, Esq. 225 Broadway, Suite 2515 New York, NY 10007 Telephone: (212) 766-1443 Facsimile: (212) 766-0943 E-mail: ronaldphartesq@gmail.com NIKON CORP: Settles D600 Class Action Over Sensor Spec Issue ------------------------------------------------------------ DL Cade, writing for PetaPixel, reports that at least one of the class action lawsuits against Nikon about the sensor spec issue found on some D600 cameras has been settled, and settled in the best possible way for the users participating in this suit. According to an email posted to a fredmiranda forum, D600 users who were part of the Zimmerman & Reed lawsuit have until November 30, 2014 to complete a few simple steps and get a brand new D610 completely free. OCEAN POWER: Faces Securities Class Actions in New Jersey --------------------------------------------------------- Ocean Power Technologies, Inc. said in a Form 10-K Report filed with the Securities and Exchange Commission on July 29, 2014, for the fiscal year ended April 30, 2014, that the Company and its former Chief Executive Officer Charles Dunleavy on June 13, 2014, were named as defendants in a putative securities class action filed in the United States District Court for the District of New Jersey captioned Roby v. Ocean Power Technologies, Inc., et al., Case No. 3:14-cv-03799-FLW-LHG. The complaint is brought on behalf of a putative class of investors who purchased the Company's common stock during the period January 14, 2014 through June 9, 2014. The complaint alleges claims for violations of Sec. 10(b) and Sec. 20(a) of the Securities Exchange Act of 1934 arising out of public statements regarding an agreement between Victorian Wave Partners Pty. Ltd., a project-specific operating entity owned by the Company's subsidiary, Ocean Power Technologies (Australasia) Pty. Ltd., and the Australian Renewable Energy Agency for the development of a wave power station (the "VWP Project"). On June 13 and June 20, 2014, two additional putative securities class actions captioned Chew, et al. v. Ocean Power Technologies, Inc. et. al., Case No 3:14-cv-03815-MAS-DEA, and Konstantinidis v. Ocean Power Technologies, Inc., et al., Case No. 3:14-cv-04015- FLW-DEA, were filed in the same federal court alleging substantially similar claims. The Chew complaint also names as a defendant Chief Financial Officer Mark Featherstone. On July 22, 2014, a fourth securities class action complaint was filed against the Company, Mr. Dunleavy, and Mr. Featherstone in federal court in New Jersey, captioned Turner v. Ocean Power Technologies, Inc., et al., Case No. 3:14-cv-04592. The Turner complaint is filed on behalf of a putative class of investors who purchased the Company's common stock during the period January 14, 2014 to July 14, 2014 and also makes allegations relating to the VWP Project. All four complaints seek unspecified monetary damages and other relief. The cases are still in their preliminary stages and defendants have not yet responded to the complaints. On July 10, 2014, the Company received a demand letter ("Demand Letter") from an attorney claiming to represent a shareholder demanding that the Company's Board of Directors establish an independent committee to investigate and remedy alleged breaches of fiduciary duties by the Board of Directors and management relating to the VWP Project. The Board of Directors will address the Demand Letter at their next scheduled meeting in August or September and respond as appropriate to the allegations in the Demand Letter. The company is developing and seeking to commercialize proprietary systems that generate electricity by harnessing the renewable energy of ocean waves. OKLAHOMA CITY, OK: Nov. 13 Hearing Set for License Class Action --------------------------------------------------------------- Phillip Slavin, writing for FOX25, reports that the Aug. 7 hearing for a class action over revoked licenses has been canceled. Lawyers for both sides have agreed that the case meets the criteria for class action status The next hearing is now scheduled for November 13. Oklahoma City attorney John Hunsucker says once they have certification and discovery, they will then contact drivers who fall into the class action lawsuit. A lawsuit involving drivers whose licenses were revoked because of a faulty affidavit, was set to go before a judge on Aug. 7. An Oklahoma county district judge will decide if the case deserves class action status. The suit seeks refunds for an estimated 40- thousand drivers. Their licenses were revoked after being cited for alcohol-related offenses between 2003 and 2008. Last year, a court ruled that an affidavit used by the department of public safety did not comply with state law. The affidavits have since been changed, but the drivers could receive refunds of fees related to the reinstatement of their driver's licenses. According to the Tulsa World, the refund could total as high as $11 million. PEPCO HOLDINGS: Faces Suit Over Proposed Biz Sale to Exelon ----------------------------------------------------------- Marc Alan Reichbart, Individually and on Behalf of All Others Similarly Situated v. H. Russell Frisby, Jr., Patrick T. Harker, Jack B. Dunn, IV, Terence C. Golden, Barbara J. Krumsiek, Paul M. Barbas, Patricia A. Oelrich, Lawrence C. Nussdorf, Joseph M. Rigby, Lester P. Silverman, Pepco Holdings Inc., Exelon Corporation, and Purple Acquisition Corp., Case No. 1:14-cv-01039 (D. Del., August 12, 2014) arises from the proposed sale of Pepco to Exelon. Pepco Holdings Inc. is a Delaware corporation headquartered in Washington, DC. The Company specializes in the delivery of electricity and natural gas energy in the Mid-Atlantic region. The Individual Defendants are directors and officers of the Company. Exelon Corporation is a Pennsylvania corporation headquartered in Chicago, Illinois. Exelon is a utility services holding company engaged in the energy generation and energy delivery businesses. Purple Acquisition Corp. is a Delaware corporation and a wholly owned subsidiary of Exelon established to facilitate the Proposed Sale. The Plaintiff is represented by: Richard H. Cross, Jr., Esq. Christopher Page Simon, Esq. CROSS & SIMON, LLC 1105 North Market Street, Suite 901 Wilmington, DE 19801 Telephone: (302) 777-4200 Facsimile: (302) 777-4224 E-mail: rcross@crosslaw.com csimon@crosslaw.com - and - Louis Boyarsky, Esq. Leanne E. Heine, Esq. GLANCY BINKOW & GOLDBERG LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 Facsimile: (310) 201-9160 E-mail: Lboyarsky@glancylaw.com lheine@glancylaw.com PHILADELPHIA, PA: Unconstitutionally Seizes Property, Suit Claims ----------------------------------------------------------------- Andrew Thompson, writing for Courthouse News Service, reports that the Philadelphia District Attorney's Office unconstitutionally seizes property without a hearing and sells it without due process, to raise millions of dollars to pay its employee's salaries, a class action claims in Pennsylvania Federal Court. Lead plaintiff Christos Sourovelis claims Philadelphia abuses the process of civil asset forfeiture, in which property used in a crime is charged with the crime and seized. Most states have such laws. But the Philadelphia District Attorney's Office has used civil asset forfeiture so wantonly and has made reclaiming the property so onerous that it outstrips the value of property seized, the complaint states. Philadelphia seizes an average of $5.8 million worth of assets every year, compared to Kings County (Brooklyn) in New York and Los Angeles County, which, while both larger than Philadelphia, brought in $1.2 million in assets, according to the lawsuit. Half of this money has gone to pay District Attorney's Office salaries, the complaint says. "In statistical terms, the amount of Philadelphia's forfeiture revenue is almost 8 standard deviations above the mean," according to the complaint. "In laymen's terms, Philadelphia is as aberrant as a 7-foot-tall woman or an 8-foot-tall man." Sourovelis and two named co-plaintiffs claims they all had property taken from them and were forced to navigate the DA's labyrinthine process to get it back. Sourovelis's house was seized by the DA after his son, identified in the complaint as YS, was arrested for possessing drugs. After YS's arrest, while Sourvoelis was driving him to a drug rehabilitation program, the DA obtained an ex parte order to take possession of the home, the complaint states. Sourovelis was evicted and a lock was placed on the door. To re-enter his home, Sourvelelis and his wife were brought to a hearing without a judge or jury and told by an assistant district attorney that they would have to relinquish any defense that they were innocent owners of the property and would have to bar YS from entering the home, the complaint states. They have been allowed back into the home while they await another hearing. His two co-plaintiffs both face loss of their homes, though they did not a commit any crime, according to the complaint. The plaintiffs claim the city systematically violates the Due Process clause of the 14th Amendment. They seek declaratory judgment that the way Philadelphia does this is unconstitutional, and injunction, return of all seized property and nominal damages of one dollar, plus attorney's fees. Defendants include Mayor Michael Nutter, the Philadelphia District Attorney's Office, District Attorney R. Seth Williams, and Police Commissioner Charles Ramsey. The Plaintiffs are represented by: David Rudovsky, Esq. KAIRYS RUDOVSKY MESSING & FEINBERG The Cast Iron Building 718 Arch Street, Suite 501 South Philadelphia, PA 19106 Telephone: (215) 925-4400 E-mail: drudovsky@krlawphila.com PHILADELPHIA, PA: Property Owners' Class Action Appeal Dismissed ---------------------------------------------------------------- Claudia Vargas, writing for Philly.com, reports that former Philadelphia property owners who lost their homes to a sheriff's sale must claim sale proceeds, if any, individually, Commonwealth Court ruled, dismissing a class action suit appeal. Joseph O'Hara and his company Finn Land Corp., the representatives in the class in the 2011 lawsuit, sued the Philadelphia Sheriff's Office for failure to distribute millions of dollars to former property owners who were owed proceeds. The lawsuit was based on a City Controller's audit of the sheriff's office that questioned the use of $53 million in custodial funds. A later forensic audit concluded that the "primary source" of $5.2 million in unclaimed bank balances between 2006 and 2010 were undistributed excess sale proceeds. The complaint stated that excess proceeds remained with the sheriff's office after the liens were paid and that, despite numerous requests, the sheriff's office did not distribute the monies. "The basis of our lawsuit was distribute the money instead of having every individual file a lawsuit," said Christy Adams, the lawyer who represented Mr. O'Hara. The plaintiffs were also seeking the interest on the unclaimed funds. Philadelphia Common Pleas Court ruled against Mr. O'Hara and on July 31 a three-judge Commonwealth Court panel released an opinion agreeing with the lower court's ruling. "The major issue was whether class is an appropriate way to distribute this money," said Stephanie Kosta -- skosta@duanemorris.com -- a Duane Morris attorney who represented the state in the matter. The Department of Treasury intervened in the lawsuit against the Sheriff's office, citing its responsibility in holding the sale proceed funds once they have gone uncollected for five years. Commonwealth Court Judge Anne E. Covey, who wrote the opinion, said there was already a structure in place for people to request monies owed to them by the sheriff or state and that the classes were not defined with "sufficient precision." Ms. Adams said she will be appealing to state Supreme Court. "For $500, $1,000 or $2,000 that they are owed, many don't have resources to hire an attorney," Ms. Adams said. "Most people just give up." But Pennsylvania Treasury Chief Counsel Christopher Craig said people don't need to hire an attorney to claim money due to them once it is in the state's possession. (The city turns over unclaimed sheriff's sale funds to state Treasury after five years.) "Property held by the State Treasurer remains, in perpetuity, available to be claimed by the lawful property owner," Craig said. "It only requires downloading a form, completing it, and submitting it for approval." That form can be found at: http://patreasury.gov/Unclaimed/Search.html PLACE ENTERTAINMENT: Fails to Pay Minimum and OT Wages, Suit Says ----------------------------------------------------------------- Lindsey Riley v. Place Entertainment, LLC, Michael Redmond, Molly Wellman, Jeffrey M. Brandt, John E. Back, Jr., and The Gadsden, LLC, Case No. 1:14-cv-00639-SJD (S.D. Ohio, August 11, 2014) alleges that during her employment with the Defendants, the Plaintiff was treated differently than similarly-situated male employees. Ms. Riley also contends that the Defendants failed to pay her minimum and overtime wages in violation of the Fair Labor Standards Act. Place Entertainment, LLC holds itself out as a limited liability company, Ms. Riley says. She notes that Place is registered as a foreign entity with the Commonwealth of Kentucky, but, according to the Ohio Secretary of State's Web site, is not registered to do business in Ohio and is not an Ohio entity. The Gadsden, LLC is a Kentucky limited liability company, which purports to be a member or owner of Place. The Individual Defendants are owners or proprietors of Place and Gadsden. The Defendants own and operate a group of bars and restaurants in the Cincinnati, Ohio area. The Plaintiff is represented by: David A. Eberly, Esq. Theodore C. Copetas, Esq. EBERLY MCMAHON LLC 2321 Kemper Lane, Suite 100 Cincinnati, OH 45206 Telephone: (513) 533-9898 Facsimile: (513) 533-3554 E-mail: deberly@emh-law.com tcopetas@emh-law.com PRO EXCAVATING: Accused of Failing to Pay Proper Overtime Wages --------------------------------------------------------------- Felipe Herrera, individually and on behalf of other employees similarly situated v. Pro Excavating, Inc., and David McCallion, individually, Case No. 1:14-cv-06219 (N.D. Ill., August 13, 2014) alleges that the Defendants willfully failed to compensate employees their earned overtime wages for all hours worked in excess of 40 hours per week. Pro Excavating, Inc., Defendant PEI is an "enterprise" that owned and operated in Illinois by its owner, David McCallion. The Plaintiff is represented by: Valentin T. Narvaez, Esq. CONSUMER LAW GROUP, LLC 6232 N. Pulaski, Suite 200 Chicago, IL 60646 Telephone: (312) 878-1302 E-mail: vnarvaez@yourclg.com QUAKER OATS: Settles Transfat Labeling Class Action for $1.4MM -------------------------------------------------------------- Kyla Asbury, writing for Legal Newsline, reports that The Quaker Oats Co. has agreed to a $1.4 million settlement in a class action lawsuit claiming it mislabeled its products as transfats free when they weren't. The Quaker Oats Co.'s products were allegedly labeled as having zero transfats, when they contained partially hydrogenated oil, which can cause heart disease, cancer and Type 2 Diabetes. Quaker agreed to remove the partially hydrogenated oil by Dec. 31, 2015, from the Oatmeal to Go and Instant Quaker Oatmeal products that currently contain PHOs and not to reintroduce PHOs into those products for a period of ten years, according to the settlement documents filed June 12 and finalized on July 29. Quaker also agreed not to introduce PHOs for a period of 10 years into Quaker Chewy Bars, as well as the Instant Quaker Oatmeal products that do not currently contain PHOs. "The estimated cost of reformulating these products is approximately $1.4 million," the settlement document states. Attorneys fees and costs in the amount of $760,000 will be awarded to class counsel, according to the document. Each of the three settlement class representatives will receive a $750 incentive award. Quaker Oats "vigorously denies" the allegations and "stands by its products and marketing," according to the plaintiffs' motion for preliminary settlement approval. The company nonetheless agreed to injunctive relief at a cost of approximately $1.4 million, and U.S. District Judge Richard Seeborg preliminary approved the deal Feb. 12, under which Quaker must pay up to $120,000 to cover the cost of notifying all potential class members. By the end of this year, the company must "cease making the statement 'contains a dietarily insignificant amount of trans fat' on the label of any product containing 0.2 grams or more of artificial trans fat per serving,'" the motion states. Judge Seeborg approved the final settlement, finding that it is "fair, reasonable, and adequate, with terms that are within the range of reasonableness. The settlement agreement was entered into at arms'-length by experienced counsel and after extensive negotiations spanning months. The settlement agreement is not the result of collusion." The lawsuit was first filed on Feb. 3, 2010, and the settlement was preliminarily approved on Feb. 12. Victor Guttmann, Sonya Yrene and Rebecca Yumul claimed Quaker falsely labeled its products and caused them harm in the process. "Quaker falsely markets its products as healthful, despite the fact that they have dangerous levels of artificial trans fat, a toxic food additive banned in many parts of the world," the complaint stated. U.S. District Court for the Northern District of California case number: 5:10-cv-00502 RECOLOGY INC: Bid to Remand "Coria" Wage and Hour Case Denied ------------------------------------------------------------- In JAVIER CORIA, Plaintiff, v. RECOLOGY, INC., Defendant, CASE NO. 14-CV-01536-JD, (N.D. Cal.), before the Court was plaintiff's motion for an order remanding the case to state court and awarding costs and attorneys' fees to plaintiff. The Plaintiff filed this wage-and-hour class action against his former employer, Recology, Inc., in the California Superior Court for the County of San Francisco. Plaintiff was a truck driver for Recology, a waste management company. Among other things, plaintiff alleges that defendant had "a continuous policy of not paying Plaintiffs and those similarly situated for all hours worked. In an order dated August 7, 2014, a copy of which is available at http://is.gd/xnrajDfrom Leagle.com, District Judge James Donato denied the motion to remand. Javier Coria, Plaintiff, represented by David Thomas Mara -- dmara@tudeylawfirm.com -- The Turley Law Firm, APLC & William David Turley -- bturley@turleylawfirm.com -- The Turley Law Firm A Prof Law Corp. Recology, Inc., Defendant, represented by Rod M. Fliegel -- rfliegel@litter.com -- Littler Mendelson, Yves Nguyen -- ynguyen@littler.com -- Littler Mendelson & Alison S. Hightower -- ahightower@littler.com -- Littler Mendelson. RED BULL: Settles False Advertising Class Action for $13 Mil. ------------------------------------------------------------- Kyla Asbury, writing for Legal Newsline, reports that Red Bull has agreed to a $13 million settlement in a class action lawsuit that came about from its allegedly false advertising of Red Bull having more benefits than coffee. Benjamin Careathers, David Wolf and Miguel Almaraz sued Red Bull North America Inc., Red Bull GMbH and Red Bull Distribution Company Inc. because they claim the defendants' labeling and marketing has deceived consumers. The plaintiffs claim Red Bull falsely marketed its energy drinks as providing certain functional benefits and thereby induced consumers into purchasing and/or paying a price "premium" for those drinks over alternate sources of caffeine, according to the settlement document filed July 31 in the U.S. District Court for the Southern District of New York. Red Bull denies all wrongdoing or liability, and is prepared to vigorously defend its marketing claims if the litigation proceeds, according to the document. "Notwithstanding, following extensive, good-faith and arms' length negotiations between experienced counsel, and under the auspices of a respected mediator, the parties have agreed to settlement terms that they believe will fairly resolve this action, avoid protracted, expensive and uncertain litigation, and reasonably and adequately provide prompt effective relief for putative class members," the settlement document says. The parties agree that an appropriate settlement class would be comprised of persons who purchased at least one Red Bull beverage dating back to Jan. 1, 2002. All members of this settlement class who submit a valid and timely claim will have a choice of receiving either a $10 cash reimbursement or free Red Bull products with an approximate retail value of $15. Product packaging and sizing shall be determined by Red Bull at its discretion after the final value of the product option has been determined. Class counsel will receive an amount not to exceed $4.75 million for attorneys' fees, costs and expenses, according to the document. Messrs. Careathers, Wolf and Almaraz will receive an amount not to exceed $5,000 each. The plaintiffs are also asking that the alleged false advertising campaign by Red Bull be discontinued. "Beyond monetary relief, although Red Bull denies wrongdoing and believes that its marketing materials and advertising have always been truthful and accurate, it has voluntarily withdrawn or revised the marketing claims challenged by plaintiffs, and will confirm that all future claims about the functional benefits from consuming its products will be medically and/or scientifically supported," the settlement document states. Mr. Careathers filed his class action against Red Bull on Jan. 16, 2013, in the U.S. District Court for the Southern District of New York, and Messrs. Wolf and Almaraz filed theirs on Feb. 27, 2013, in the U.S. District Court for the Central District of California. The cases were later consolidated. The plaintiffs are represented by Benedict Morelli, David Ratner, Adam Deutsch, Jeremy Alters and Matthew Moore of Morelli Alters Ratner LLP; and Frederic Fox -- ffox@kaplanfox.com -- Justin Farar, Laurence King and Linda Fong -- lfong@kaplanfox.com -- of Kaplan Fox & Kilsheimer LLP. The defendants are represented by Kenneth Plevan -- kenneth.plevan@skadden.com -- Jordan Feirman -- jordan.feirman@skadden.com -- Jason Russell and Hillary Hamilton of Skadden Arps Slate Meagher & Flom LLP. The case has been assigned to District Judge Katherine Polk Failla. U.S. District Court for the Southern District of New York case number: 1:13-cv-00369 REGIONS FIN'L: Lower Court to Review Price Impact in Class Action ----------------------------------------------------------------- Stephanie Russell-Kraft and Amanda Bransford., writing for Law360, report that in light of the U.S. Supreme Court's recent Halliburton decision, the Eleventh Circuit on Aug. 13 asked a lower court to give Regions Financial Corp. a chance to prove that alleged misrepresentations related to its 2006 acquisition of AmSouth Bancorp did not actually affect the price of its stock. The appellate court vacated an Alabama district court's 2012 decision to certify a class against Regions and asked it to consider Region's evidence that a January 2009 stock price decrease could not be linked to an announcement that $6 billion in so-called goodwill asset estimates from the $10 billion AmSouth deal were seriously impaired. Regions appealed the class certification after the Supreme Court on June 23 unanimously declined to overturn Basic Inc. v. Levinson, which established the fraud-on-the-market theory of reliance, but ruled that securities defendants may rebut the fraud-on-the-market presumption of reliance before the class certification stage by showing a lack of price impact. "Halliburton II by no means holds that in every case in which such evidence is presented, the presumption will always be defeated," Circuit Judge Beverly B. Martin wrote in the opinion for the Eleventh Circuit. "But in any event, because the district court is in the best position to review all the facts and conduct the inquiry now required in the wake of Halliburton II, we vacate and remand this case for that purpose." According to the plaintiffs' complaint, Regions misrepresented millions of dollars in loans to keep the value of goodwill reflected in quarterly reports artificially high. Regions represented that its goodwill had been repeatedly tested during 2007 and 2008 and was properly calculated, even though the value of its real estate investments was steadily dropping, the shareholders claim. On January 20, 2009, the company made a substantial corrective disclosure, reporting $5.6 billion in losses, according to court documents. That day, its stock tumbled to $4.60 per share, down from $23.33 per share the previous February. In June 2012, an Alabama district judge certified the class for the period from Feb. 27, 2008, to Jan. 20, 2009. Regions argues, however, that the decline was not caused by fraud or other misdeeds on its part, but rather by other market factors. It also claims the market was aware Regions would be increasing its loan loss reserves and writing down the value of its goodwill, and so was not relying on the high numbers. Maibeth Porter, counsel for Regions, welcomed the Eleventh Circuit's decision on Aug. 7. "Regions looks forward to demonstrating to the trial court the lack of price impact on Regions' stock, both at the time of the alleged misrepresentations and at the alleged corrective disclosure date," she told Law360. Circuit Judges William H. Pryor Jr. and Beverly B. Martin and District Judge Charlene Edwards Honeywell sat on the panel for the Eleventh Circuit. The plaintiffs are represented by Joseph David Daley, Eric Alan Isaacson, Matthew Isaac Alpert, Andrew Joseph Brown and Tricha L. McCormick of Robbins Geller Rudman & Dowd LLP and Patrick C. Cooper and James S. Ward of Ward & Wilson LLC. The defendants are represented by Maibeth J. Porter -- mporter@maynardcooper.com -- John Norman Bolus and Richard Jon Davis -- rdavis@maynardcooper.com -- of Maynard Cooper & Gale PC; Julian D. Butler -- jbutler@sirote.com -- of Sirote & Permutt PC; and Walker Steven Stewart -- walkerstewart@hbgm.com -- of Burr & Forman, LLP. The case is Local 703 I.B. Of T. Grocery and Food Employees Welfare Fund et al. v. Regions Financial Corp. et al., case number 12-14168, in the United States Court of Appeals for the Eleventh Circuit. RESTAURANT OPERATOR TWO: Suit Seeks to Recover Unpaid OT Wages -------------------------------------------------------------- Francisco Garcia, and other similarly situated individuals v. Restaurant Operator One, LLC d/b/a Latin America Cafeteria and Restaurant, a Florida limited liability company; Restaurant Operator Two, LLC d/b/a Latin America Cafeteria and Restaurant, a Florida limited liability company; Renzo Renzi, an individual, Vande Corp. d/b/a Latin America Cafeteria and Restaurant, a Florida corporation, Pasquale Renzi, an individual, Case No. 1:14- cv-22969-CMA (S.D. Fla., August 13, 2014) sees to recover money damages for unpaid overtime and straight wages under the Fair Labor Standards Act. Restaurant Operator One, LLC, Restaurant Operator Two, LLC and Vande Corp are Florida companies doing business as Latin America Cafeteria and Restaurant, with their main place of business in Miami-Dade County, Florida, where the Plaintiff worked for the Defendants as waiter/server. The Individual Defendants are Florida residents. The Plaintiff is represented by: R. Martin Saenz, Esq. SAENZ & ANDERSON, PLLC 20900 NE 30th Avenue, Suite 800 Aventura, FL 33180 Telephone: (305) 503-5131 Facsimile: (888) 270-5549 E-mail: msaenz@saenzanderson.com REYNOLDS AMERICAN: 8 Tobacco Cases Served v. RJR in Q2 2014 ----------------------------------------------------------- Reynolds American Inc. said in its Form 10-Q quarterly report filed with the Securities and Exchange Commission for the period ended June 30, 2014, that during the second quarter of 2014, eight tobacco-related cases were served against RJR Tobacco or its affiliates or indemnitees. On June 30, 2014, there were 170 cases pending against RJR Tobacco or its affiliates or indemnitees: 154 in the United States and 16 in Canada, as compared with 159 total cases on June 30, 2013. The U.S. case number does not include the approximately 564 individual smoker cases pending in West Virginia state court as a consolidated action, 4,865 Engle Progeny cases, involving approximately 5,973 individual plaintiffs, and 2,572 Broin II cases, pending in the United States against RJR Tobacco or its affiliates or indemnitees. Of the U.S. cases pending on June 30, 2014, 16 are pending in federal court, 137 in state court and 1 in tribal court, primarily in the following states: Maryland (28 cases); Florida (25 cases); Missouri (19 cases); New York (14 cases); and Louisiana (10 cases). The Company also said that these cases against RJR Tobacco and Brown & Williamson Holdings, Inc., have attracted significant attention: the Florida state court class-action case, Engle v. R. J. Reynolds Tobacco Co. and the related Engle Progeny cases; and the case brought by the U.S. Department of Justice under the federal Racketeer Influenced and Corrupt Organizations Act, referred to as RICO. REYNOLDS AMERICAN: 4,800 Engle Progeny Cases Pending at June 30 --------------------------------------------------------------- In 2000, a jury in Engle v. Liggett Group, a class action brought against the major U.S. cigarette manufacturers by Florida smokers allegedly harmed by their addiction to nicotine, rendered a $145 billion punitive damages verdict in favor of the class. In 2006, the Florida Supreme Court set aside that award, prospectively decertified the class, and preserved several of the Engle jury findings for use in subsequent individual actions to be filed within one year of its decision. The preserved findings include jury determinations that smoking causes various diseases, that nicotine is addictive, and that each defendant sold cigarettes that were defective and unreasonably dangerous, committed unspecified acts of negligence and individually and jointly concealed unspecified information about the health risks of smoking. In the wake of Engle, thousands of individual progeny actions were filed in federal and state courts in Florida. Such actions are commonly referred to as "Engle Progeny" cases. Reynolds American Inc. said in its Form 10-Q quarterly report filed with the Securities and Exchange Commission for the period ended June 30, 2014, that as of June 30, 2014, 1,744 Engle Progeny cases were pending in federal court, and 3,121 of them were pending in state court. These cases include approximately 5,973 plaintiffs. According to the Company, as of June 30, 2014, RJR Tobacco was aware of 17 additional Engle Progeny cases that had been filed but not served. Ninety-nine Engle Progeny cases have been tried in Florida state and federal courts since 2011, and numerous state court trials are scheduled for 2014. The number of pending cases fluctuates for a variety of reasons, including voluntary and involuntary dismissals. Voluntary dismissals include cases in which a plaintiff accepts an "offer of judgment," referred to in Florida statutes as "proposals for settlement," from RJR Tobacco and/or its affiliates. An offer of judgment, if rejected by the plaintiff, preserves RJR Tobacco's right to recover attorneys' fees under Florida law in the event of a verdict favorable to RJR Tobacco. Such offers are sometimes made through court-ordered mediations. In Engle Progeny cases tried to date, a central issue has been the proper use of the preserved Engle findings. RJR Tobacco has argued that use of the Engle findings to establish individual elements of progeny claims (such as defect, negligence and concealment) is a violation of federal due process. In 2013, however, both the Florida Supreme Court and the U.S. Court of Appeals for the Eleventh Circuit, referred to as the Eleventh Circuit, rejected that argument. In addition to this global due process argument, RJR Tobacco raises many other factual and legal defenses as appropriate in each case. These defenses may include, among other things, arguing that the plaintiff is not a proper member of the Engle class, that the plaintiff did not rely on any statements by any tobacco company, that the trial was conducted unfairly, that some or all claims are barred by applicable statutes of limitation or statutes of repose, or that any injury was caused by the smoker's own conduct. REYNOLDS AMERICAN: RJR Paid $186MM in 24 Engle Progeny Cases ------------------------------------------------------------ Reynolds American Inc. said in its Form 10-Q quarterly report filed with the Securities and Exchange Commission for the period ended June 30, 2014, that 24 Engle Progeny cases have become final to date. These cases resulted in aggregate payments by RJR Tobacco of $186.4 million ($140.1 million for compensatory and punitive damages and $46.3 million for attorneys' fees and statutory interest). The Company said that during the second quarter of 2014, an aggregate payment of $72.4 million ($56.1 million for compensatory and punitive damages and $16.3 million for attorneys' fees and statutory interest) was made in satisfaction of the adverse judgments in the Jimmie Lee Brown, Koballa, Duke, Walker, Kirkland, Sury, Mack, Emmon Smith and Townsend cases. Based on RJR Tobacco's evaluation, an accrual of $2.4 million ($780,000 for compensatory damages and $63,000 for attorneys' fees and statutory interest for Hiott and Starr-Blundell and $1.56 million for attorneys' fees and statutory interest for Ward, the judgment of which was paid in January 2014) was recorded in RAI's condensed consolidated balance sheet (unaudited) as of June 30, 2014. As of June 30, 2014, outstanding judgments in favor of the Engle Progeny plaintiffs have been entered and remain outstanding against RJR Tobacco in the amount of $120,681,200 in compensatory damages (as adjusted) and in the amount of $23,698,465,000 in punitive damages, for a total of $23,819,146,200. Excluding the Robinson case, where a jury awarded $16.9 million in compensatory damages and $23.6 billion in punitive damages and where post-trial motions are pending before the trial court, outstanding judgments in favor of the Engle Progeny plaintiffs have been entered and remain outstanding against RJR Tobacco in the amount of $103,781,200 in compensatory damages (as adjusted) and in the amount of $98,465,000 in punitive damages, for a total of $202,246,200. All of these verdicts are at various stages in the appellate process. RJR Tobacco continues to believe that it has valid defenses in these cases, including case-specific issues beyond the due process issue discussed above. It is the policy of RJR Tobacco and its affiliates to vigorously defend all smoking and health claims, including in Engle Progeny cases. Should RJR Tobacco not prevail in any particular individual Engle Progeny case or determine that in any individual Engle Progeny case an unfavorable outcome has become probable and the amount can be reasonably estimated, a loss would be recognized, which could have a material adverse effect on earnings and cash flows of RAI in a particular quarter or year. This position on loss recognition for Engle Progeny cases as of June 30, 2014, is consistent with RAI's and RJR Tobacco's historic position on loss recognition for other smoking and health litigation. It is also the policy of RJR Tobacco to record any loss concerning litigation at such time as an unfavorable outcome becomes probable and the amount can be reasonably estimated on an individual case-by-case basis. REYNOLDS AMERICAN: 67 Engle Progeny Cases for Trial by June 2015 ---------------------------------------------------------------- Reynolds American Inc. said in its Form 10-Q quarterly report filed with the Securities and Exchange Commission for the period ended June 30, 2014, that there are five cases, exclusive of Engle Progeny cases, scheduled for trial as of June 30, 2014 through June 30, 2015, for RJR Tobacco or its affiliates and indemnitees: one non-smoking and health case, three individual smoking and health cases and one class action. There are 67 Engle Progeny cases against RJR Tobacco and/or Brown & Williamson Holdings, Inc., set for trial through June 30, 2015, but it is not known how many of these cases will actually be tried. The Company also said that from January 1, 2011 through June 30, 2014, 105 smoking and health, Engle Progeny and health-care cost recovery cases in which RJR Tobacco or B&W were defendants were tried, including six trials for cases where mistrials were declared in the original proceedings. Verdicts in favor of RJR Tobacco, B&W and, in some cases, RJR Tobacco, B&W and other defendants, were returned in 54 cases, including 14 mistrials, tried in Florida (51), Missouri (1) and West Virginia (2). Verdicts in favor of the plaintiffs were returned in 47 cases tried in Florida and one in New York. Three cases in Florida were dismissed during trial. REYNOLDS AMERICAN: 5 Engle Progeny Cases Tried in 2014 Q2 --------------------------------------------------------- Reynolds American Inc. said in its Form 10-Q quarterly report filed with the Securities and Exchange Commission for the period ended June 30, 2014, that in the second quarter of 2014, five Engle Progeny cases in which RJR Tobacco was a defendant were tried: -- In Dupre v. Philip Morris USA, Inc., the court declared a mistrial because the jury was unable to reach a unanimous verdict. -- In Burkhart v. R. J. Reynolds Tobacco Co., the jury returned a verdict in favor of the plaintiff, found the plaintiff to be 50% at fault, RJR Tobacco to be 25% at fault, and the remaining defendants to collectively be 25% at fault, and awarded $5 million in compensatory damages. The jury also awarded $1.25 million in punitive damages against RJR Tobacco and $1.25 million collectively against the remaining defendants. -- In Starbuck v. R. J. Reynolds Tobacco Co., the court declared a mistrial because the jury was unable to reach a unanimous verdict. -- In Bakst v. R. J. Reynolds Tobacco Co., the jury returned a verdict in favor of the plaintiff, found the decedent, Juanita Thurston, to be 25% at fault and RJR Tobacco to be 75% at fault, and awarded $6 million in compensatory damages plus $4,209 for funeral expenses. The jury also awarded $14 million in punitive damages. -- In Davis v. R. J. Reynolds Tobacco Co., the jury returned a verdict in favor of the defendants, including RJR Tobacco. In addition, since the end of the second quarter of 2014, decisions were entered in the following Engle Progeny case: -- In Robinson v. R. J. Reynolds Tobacco Co., the jury returned a verdict in favor of the plaintiff, found the decedent, Michael Johnson, Sr., to be 29.5% at fault and RJR Tobacco to be 70.5% at fault and awarded $16.9 million in compensatory damages and $23.6 billion in punitive damages. REYNOLDS AMERICAN: Briefing in W.Va. Appeals Court Now Complete --------------------------------------------------------------- Reynolds American Inc. reported in its Form 10-Q quarterly report filed with the Securities and Exchange Commission for the period ended June 30, 2014, that In re: Tobacco Litigation Individual Personal Injury Cases began in 1999, in West Virginia state court, as a series of roughly 1,200 individual plaintiff cases making claims with respect to cigarettes manufactured by Philip Morris, Lorillard, RJR Tobacco, Brown & Williamson Holdings, and The American Tobacco Company. The cases were consolidated for a Phase I trial on various defense conduct issues, to be followed in Phase II by individual trials of any claims left standing. Over the years, approximately 600 individual plaintiff claims were dismissed for failure to comply with the case management order, leaving 564 individual cases pending as of April 2013. On April 15, 2013, the Phase I jury trial began and ended with a virtually complete defense verdict on May 15, 2013. The jury found that cigarettes were not defectively designed, were not defective due to a failure to warn prior to July 1, 1969, that defendants were not negligent, did not breach warranties and did not engage in conduct which would warrant punitive damages. The only claim remaining after the verdict was the jury's finding that all ventilated filter cigarettes manufactured and sold between 1964 and July 1, 1969 were defective for a failure to instruct. The defendants believe that there are only 30 plaintiffs remaining who arguably claim to have smoked a ventilated filter cigarette during the relevant period. The court initially entered judgment on the verdict identifying the 30 plaintiffs remaining, but vacated those orders as premature (leaving to a later day the task of identifying the plaintiffs who might be able to assert a ventilated filter failure to instruct claim during the narrow relevant period). The court entered a new judgment in October 2013, dismissing all claims lost by the plaintiffs and purporting to make those claims and all of the jury rulings immediately subject to appeal. The plaintiffs filed a notice of appeal to the West Virginia Supreme Court of Appeals in November 2013. Briefing is complete. The defendants reserved the right to challenge the ventilated filter claim in the event any plaintiff pursues and succeeds on such a claim. REYNOLDS AMERICAN: Nov. 2014 Trial Set in "Sateriale" Action ------------------------------------------------------------ Reynolds American Inc. reported in its Form 10-Q quarterly report filed with the Securities and Exchange Commission for the period ended June 30, 2014, that in Sateriale v. R. J. Reynolds Tobacco Co., a class action filed in November 2009 in the U.S. District Court for the Central District of California, the plaintiffs brought the case on behalf of all persons who tried unsuccessfully to redeem Camel Cash certificates from 1991 through March 31, 2007, or who held Camel Cash certificates as of March 31, 2007. The plaintiffs allege that in response to the defendants' action to discontinue redemption of Camel Cash as of March 31, 2007, customers, like the plaintiffs, attempted to exchange their Camel Cash for merchandise and that the defendants, however, did not have any merchandise to exchange for Camel Cash. The plaintiffs allege unfair business practices, deceptive practices, breach of contract and promissory estoppel. The plaintiffs seek injunctive relief, actual damages, costs and expenses. In January 2010, the defendants filed a motion to dismiss, which prompted the plaintiffs to file an amended complaint in February 2010. The class definition changed to a class consisting of all persons who reside in the U.S. and tried unsuccessfully to redeem Camel Cash certificates, from October 1, 2006 (six months before the defendant ended the Camel Cash program) or who held Camel Cash certificates as of March 31, 2007. The plaintiffs also brought the class on behalf of a proposed California subclass, consisting of all California residents meeting the same criteria. In May 2010, RJR Tobacco's motion to dismiss the amended complaint for lack of jurisdiction over subject matter and, alternatively, for failure to state a claim was granted with leave to amend. The plaintiffs filed a second amended complaint. In July 2010, RJR Tobacco's motion to dismiss the second amended complaint was granted with leave to amend. The plaintiffs filed a third amended complaint, and RJR Tobacco filed a motion to dismiss in September 2010. In December 2010, the court granted RJR Tobacco's motion to dismiss with prejudice. Final judgment was entered by the court, and the plaintiffs filed a notice of appeal, in January 2011. In July 2012, the appellate court affirmed the dismissal of the plaintiffs' claims under the Unfair Competition Law and the Consumer Legal Remedies Acts and reversed the dismissal of the plaintiffs' claims for promissory estoppel and breach of contract. RJR Tobacco's motion for rehearing or rehearing en banc was denied in October 2012. RJR Tobacco filed its answer to the plaintiffs' third amended complaint in December 2012. Trial is scheduled for November 4, 2014, the Company said. REYNOLDS AMERICAN: Decision in Philip Morris' Appeal Pending ------------------------------------------------------------- Reynolds American Inc. reported in its Form 10-Q quarterly report filed with the Securities and Exchange Commission for the period ended June 30, 2014, that the "lights" class-action cases are pending against RJR Tobacco or Brown & Williamson Holdings in Illinois (2) and Missouri (2). The classes in these cases generally seek to recover $50,000 to $75,000 per class member for compensatory and punitive damages, injunctive and other forms of relief, and attorneys' fees and costs from RJR Tobacco and/or B&W. In general, the plaintiffs allege that RJR Tobacco or B&W made false and misleading claims that "lights" cigarettes were lower in tar and nicotine and/or were less hazardous or less mutagenic than other cigarettes. The cases typically are filed pursuant to state consumer protection and related statutes. Many of these "lights" cases were stayed pending review of the Good v. Altria Group, Inc. case by the U.S. Supreme Court. In that "lights" class-action case against Altria Group, Inc. and Philip Morris USA, the U.S. Supreme Court decided that these claims are not preempted by the Federal Cigarette Labeling and Advertising Act or by the Federal Trade Commission's historic regulation of the industry. Since this decision in December 2008, a number of the stayed cases have become active again. The seminal "lights" class-action case involves RJR Tobacco's competitor, Philip Morris, Inc. Trial began in Price v. Philip Morris, Inc. in January 2003. In March 2003, the trial judge entered judgment against Philip Morris in the amount of $7.1 billion in compensatory damages and $3 billion in punitive damages. Based on Illinois law, the bond required to stay execution of the judgment was set initially at $12 billion. Philip Morris pursued various avenues of relief from the $12 billion bond requirement. On December 15, 2005, the Illinois Supreme Court reversed the lower court's decision and sent the case back to the trial court with instructions to dismiss the case. On December 5, 2006, the trial court granted the defendant's motion to dismiss and for entry of final judgment. The case was dismissed with prejudice the same day. In December 2008, the plaintiffs filed a petition for relief from judgment, stating that the U.S. Supreme Court's decision in Good v. Altria Group, Inc. rejected the basis for the reversal. The trial court granted the defendant's motion to dismiss the plaintiffs' petition for relief from judgment in February 2009. In March 2009, the plaintiffs filed a notice of appeal to the Illinois Appellate Court, Fifth Judicial District, requesting a reversal of the February 2009 order and remand to the circuit court. On February 24, 2011, the appellate court entered an order, concluding that the two-year time limit for filing a petition for relief from a final judgment began to run when the trial court dismissed the plaintiffs' lawsuit on December 18, 2006. The appellate court therefore found that the petition was timely, reversed the order of the trial court, and remanded the case for further proceedings. Philip Morris filed a petition for leave to appeal to the Illinois Supreme Court. On September 28, 2011, the Illinois Supreme Court denied Philip Morris's petition for leave to appeal and returned the case to the trial court for further proceedings. In December 2012, the trial court denied the plaintiffs' petition for relief from the judgment. The plaintiffs filed a notice of appeal to the Illinois Appellate Court, Fifth Judicial District. In April 2014, the appellate court reinstated the 2003 verdict. In May 2014, Philip Morris filed a petition for leave to appeal to the Illinois Supreme Court and a motion for supervisory order. Philip Morris has requested the Illinois Supreme Court to direct the Fifth Judicial District to vacate its April 2014 judgment and to order the Fifth Judicial District to affirm the trial court's denial of the plaintiff's petition for relief from the judgment, or in the alternative, grant its petition for leave to appeal. A decision is pending. REYNOLDS AMERICAN: August 20 Status Conference in "Turner" Case --------------------------------------------------------------- Reynolds American Inc. reported in its Form 10-Q quarterly report filed with the Securities and Exchange Commission for the period ended June 30, 2014, that in Turner v. R. J. Reynolds Tobacco Co., a case filed in February 2000 in Circuit Court, Madison County, Illinois, a judge certified a class in November 2001. In June 2003, RJR Tobacco filed a motion to stay the case pending Philip Morris's appeal of the Price v. Philip Morris, Inc. case, which the judge denied in July 2003. In October 2003, the Illinois Fifth District Court of Appeals denied RJR Tobacco's emergency stay/supremacy order request. In November 2003, the Illinois Supreme Court granted RJR Tobacco's motion for a stay pending the court's final appeal decision in Price. On October 11, 2007, the Illinois Fifth District Court of Appeals dismissed RJR Tobacco's appeal of the court's denial of its emergency stay/supremacy order request and remanded the case to the Circuit Court. A status conference is scheduled for August 20, 2014. REYNOLDS AMERICAN: No Activity in "Howard" Suit ----------------------------------------------- In Howard v. Brown & Williamson Tobacco Corp., a case filed in February 2000 in Circuit Court, Madison County, Illinois, a judge certified a class in December 2001. In June 2003, the trial judge issued an order staying all proceedings pending resolution of the Price v. Philip Morris, Inc. case mentioned above. The plaintiffs appealed this stay order to the Illinois Fifth District Court of Appeals, which affirmed the Circuit Court's stay order in August 2005. There is currently no activity in the case, Reynolds American Inc. reported in its Form 10-Q quarterly report filed with the Securities and Exchange Commission for the period ended June 30, 2014. REYNOLDS AMERICAN: Feb 2015 Status Conference in "Collora" Action ----------------------------------------------------------------- Reynolds American Inc. reported in its Form 10-Q quarterly report filed with the Securities and Exchange Commission for the period ended June 30, 2014, that a "lights" class-action case is pending against each of RJR Tobacco and Brown & Williamson Holdings, in Missouri. In Collora v. R. J. Reynolds Tobacco Co., a case filed in May 2000 in Circuit Court, St. Louis County, Missouri, a judge in St. Louis certified a class in December 2003. In April 2007, the court granted the plaintiffs' motion to reassign Collora and the following cases to a single general division: Craft v. Philip Morris Companies, Inc. and Black v. Brown & Williamson Tobacco Corp. In April 2008, the court stayed the case pending U.S. Supreme Court review in Good v. Altria Group, Inc. A nominal trial date of January 10, 2011 was scheduled, but it did not proceed at that time. A status conference is scheduled for February 2, 2015. REYNOLDS AMERICAN: Feb. 2015 Status Conference in "Black" Action ---------------------------------------------------------------- Reynolds American Inc. reported in its Form 10-Q quarterly report filed with the Securities and Exchange Commission for the period ended June 30, 2014, that in Black v. Brown & Williamson Tobacco Corp., a case filed in November 2000 in Circuit Court, City of St. Louis, Missouri, B&W removed the case to the U.S. District Court for the Eastern District of Missouri. The plaintiffs filed a motion to remand, which was granted in March 2006. In April 2008, the court stayed the case pending U.S. Supreme Court review in Good v. Altria Group, Inc. A nominal trial date of January 10, 2011, was scheduled, but it did not proceed at that time. A status conference is scheduled for February 2, 2015. REYNOLDS AMERICAN: "Young" Suit v. American Tobacco Stayed ---------------------------------------------------------- Reynolds American Inc. reported in its Form 10-Q quarterly report filed with the Securities and Exchange Commission for the period ended June 30, 2014, that in Young v. American Tobacco Co., Inc., a case filed in November 1997 in Circuit Court, Orleans Parish, Louisiana, the plaintiffs brought an ETS class action against U.S. cigarette manufacturers, including RJR Tobacco and Brown & Williamson Holdings, and parent companies of U.S. cigarette manufacturers, including RJR, on behalf of all residents of Louisiana who, though not themselves cigarette smokers, have been exposed to secondhand smoke from cigarettes which were manufactured by the defendants, and who allegedly suffered injury as a result of that exposure. The plaintiffs seek to recover an unspecified amount of compensatory and punitive damages. In March 2013, the court entered an order staying the case, including all discovery, pending the implementation of the smoking cessation program ordered by the court in Scott v. The American Tobacco Co. REYNOLDS AMERICAN: "Parsons" Suit v. A C & S Remains Stayed ----------------------------------------------------------- Reynolds American Inc. reported in its Form 10-Q quarterly report filed with the Securities and Exchange Commission for the period ended June 30, 2014, that in Parsons v. A C & S, Inc., a case filed in February 1998 in Circuit Court, Ohio County, West Virginia, the plaintiff sued asbestos manufacturers, U.S. cigarette manufacturers, including RJR Tobacco and Brown & Williamson Holdings, and parent companies of U.S. cigarette manufacturers, including RJR, seeking to recover $1 million in compensatory and punitive damages individually and an unspecified amount for the class in both compensatory and punitive damages. The class was brought on behalf of persons who allegedly have personal injury claims arising from their exposure to respirable asbestos fibers and cigarette smoke. The plaintiffs allege that Mrs. Parsons' use of tobacco products and exposure to asbestos products caused her to develop lung cancer and to become addicted to tobacco. In December 2000, three defendants, Nitral Liquidators, Inc., Desseaux Corporation of North America and Armstrong World Industries, filed bankruptcy petitions in the U.S. Bankruptcy Court for the District of Delaware, In re Armstrong World Industries, Inc. Pursuant to section 362(a) of the Bankruptcy Code, Parsons is automatically stayed with respect to all defendants. REYNOLDS AMERICAN: No Activity in "Jones" Suit v American Tobacco ----------------------------------------------------------------- Reynolds American Inc. reported in its Form 10-Q quarterly report filed with the Securities and Exchange Commission for the period ended June 30, 2014, that in Jones v. American Tobacco Co., Inc., a case filed in December 1998 in Circuit Court, Jackson County, Missouri, the defendants removed the case to the U.S. District Court for the Western District of Missouri in February 1999. The action was brought against the major U.S. cigarette manufacturers, including RJR Tobacco and Brown & Williamson Holdings, and parent companies of U.S. cigarette manufacturers, including RJR, by tobacco product users and purchasers on behalf of all similarly situated Missouri consumers. The plaintiffs allege that their use of the defendants' tobacco products has caused them to become addicted to nicotine. The plaintiffs seek to recover an unspecified amount of compensatory and punitive damages. The case was remanded to the Circuit Court in February 1999. There is currently no activity in this case. REYNOLDS AMERICAN: British Columbia Case Being Actively Pursued --------------------------------------------------------------- Reynolds American Inc. reported in its Form 10-Q quarterly report filed with the Securities and Exchange Commission for the period ended June 30, 2014, that the following seven putative Canadian class actions were filed against various Canadian and non-Canadian tobacco-related entities, including RJR Tobacco and one of its affiliates, in courts in the Provinces of Alberta, British Columbia, Manitoba, Nova Scotia, Ontario and Saskatchewan, although the plaintiffs' counsel have been actively pursuing only the action pending in British Columbia at this time: -- In Adams v. Canadian Tobacco Manufacturers' Council, a case filed in July 2009 in the Court of Queen's Bench for Saskatchewan against Canadian and non-Canadian tobacco-related entities, including RJR Tobacco and one of its affiliates, the plaintiff, an individual smoker, alleging her own addiction and chronic obstructive pulmonary disease resulting from the use of tobacco products, is seeking compensatory and unspecified punitive damages on behalf of a proposed class comprised of all individuals who were alive on July 10, 2009, and who have suffered, or who currently suffer, from chronic obstructive pulmonary disease, emphysema, heart disease or cancer, after having smoked a minimum of 25,000 cigarettes designed, manufactured, imported, marketed or distributed by the defendants, as well as disgorgement of revenues earned by the defendants. RJR Tobacco and its affiliate have brought a motion challenging the jurisdiction of the Saskatchewan court. -- In Dorion v. Canadian Tobacco Manufacturers' Council, a case filed in June 2009, in the Court of Queen's Bench of Alberta against Canadian and non-Canadian tobacco-related entities, including RJR Tobacco and one of its affiliates, the plaintiff, an individual smoker, alleging her own addiction and chronic bronchitis resulting from the use of tobacco products, is seeking compensatory and unspecified punitive damages on behalf of a proposed class comprised of all individuals, including their estates, dependents and family members, who purchased or smoked cigarettes designed, manufactured, marketed or distributed by the defendants, as well as restitution of profits and reimbursement of government expenditure for health-care benefits allegedly caused by the use of tobacco products. -- In Kunka v. Canadian Tobacco Manufacturers' Council, a case filed in 2009 in the Court of Queen's Bench of Manitoba against Canadian and non-Canadian tobacco-related entities, including RJR Tobacco and one of its affiliates, the plaintiff, an individual smoker, alleging her own addiction and chronic obstructive pulmonary disease, severe asthma and lung disease resulting from the use of tobacco products, is seeking compensatory and unspecified punitive damages on behalf of a proposed class comprised of all individuals, including their estates, and their dependents and family members, who purchased or smoked cigarettes manufactured by the defendants, as well as restitution of profits and reimbursement of government expenditure for health-care benefits allegedly caused by the use of tobacco products. -- In Semple v. Canadian Tobacco Manufacturers' Council, a case filed in June 2009 in the Supreme Court of Nova Scotia against Canadian and non-Canadian tobacco-related entities, including RJR Tobacco and one of its affiliates, the plaintiff, an individual smoker, alleging his own addiction and chronic obstructive pulmonary disease resulting from the use of tobacco products, is seeking compensatory and unspecified punitive damages on behalf of a proposed class comprised of all individuals, including their estates, dependents and family members, who purchased or smoked cigarettes designed, manufactured, marketed or distributed by the defendants for the period from January 1, 1954, to the expiry of the opt-out period as set by the court, as well as restitution of profits and reimbursement of government expenditure for health-care costs allegedly caused by the use of tobacco products. -- In Bourassa v. Imperial Tobacco Canada Limited, a case filed in June 2010 in the Supreme Court of British Columbia against Canadian and non-Canadian tobacco-related entities, including RJR Tobacco and one of its affiliates, the plaintiff, the heir to a deceased smoker, alleging that the deceased was addicted to and suffered emphysema resulting from the use of tobacco products, is seeking compensatory and unspecified punitive damages on behalf of a proposed class comprised of all individuals, including their estates, who were alive on June 12, 2007, and who have suffered, or who currently suffer from chronic respiratory diseases, after having smoked a minimum of 25,000 cigarettes designed, manufactured, imported, marketed, or distributed by the defendants, as well as disgorgement of revenues earned by the defendants from January 1, 1954, to the date the claim was filed. RJR Tobacco and its affiliate have filed a challenge to the jurisdiction of the British Columbia court. The plaintiff filed a motion for certification in April 2012, and filed affidavits in support in August 2013. -- In McDermid v. Imperial Tobacco Canada Limited, a case filed in June 2010 in the Supreme Court of British Columbia against Canadian and non-Canadian tobacco-related entities, including RJR Tobacco and one of its affiliates, the plaintiff, an individual smoker, alleging his own addiction and heart disease resulting from the use of tobacco products, is seeking compensatory and unspecified punitive damages on behalf of a proposed class comprised of all individuals, including their estates, who were alive on June 12, 2007, and who have suffered, or who currently suffer from heart disease, after having smoked a minimum of 25,000 cigarettes designed, manufactured, imported, marketed, or distributed by the defendants, as well as disgorgement of revenues earned by the defendants from January 1, 1954, to the date the claim was filed. RJR Tobacco and its affiliate have filed a challenge to the jurisdiction of the British Columbia court. -- In Jacklin v. Canadian Tobacco Manufacturers' Council, a case filed in June 2012 in the Ontario Superior Court of Justice against Canadian and non-Canadian tobacco-related entities, including RJR Tobacco and one of its affiliates, the plaintiff, an individual smoker, alleging her own addiction and chronic obstructive pulmonary disease resulting from the use of tobacco products, is seeking compensatory and unspecified punitive damages on behalf of a proposed class comprised of all individuals, including their estates, who were alive on June 12, 2007, and who have suffered, or who currently suffer from chronic obstructive pulmonary disease, heart disease, or cancer, after having smoked a minimum of 25,000 cigarettes designed, manufactured, imported, marketed, or distributed by the defendants, as well as restitution of profits, and reimbursement of government expenditure for health-care benefits allegedly caused by the use of tobacco products. In each of these seven cases, the plaintiffs allege fraud, fraudulent concealment, breach of warranty, breach of warranty of merchantability and of fitness for a particular purpose, failure to warn, design defects, negligence, breach of a "special duty" to children and adolescents, conspiracy, concert of action, unjust enrichment, market share liability, joint liability, and violations of various trade practices and competition statutes. Pursuant to the terms of the 1999 sale of RJR Tobacco's international tobacco business, RJR Tobacco has tendered the defense of these seven actions to JTI. Subject to a reservation of rights, JTI has assumed the defense of RJR Tobacco and its current or former affiliates in these actions. REYNOLDS AMERICAN: Kansas Appeals Court Affirms Summary Judgment ---------------------------------------------------------------- Reynolds American Inc. reported in its Form 10-Q quarterly report filed with the Securities and Exchange Commission for the period ended June 30, 2014, that a number of tobacco wholesalers and consumers have sued U.S. cigarette manufacturers, including RJR Tobacco and Brown & Williamson Holdings, in federal and state courts, alleging that cigarette manufacturers combined and conspired to set the price of cigarettes in violation of antitrust statutes and various state unfair business practices statutes. In these cases, the plaintiffs asked the court to certify the lawsuits as class actions on behalf of other persons who purchased cigarettes directly or indirectly from one or more of the defendants. As of June 30, 2014, all of the federal and state court cases on behalf of indirect purchasers had been dismissed. In Smith v. Philip Morris Cos., Inc., a case filed in February 2000, and pending in District Court, Seward County, Kansas, the court granted class certification in November 2001, in an action brought against the major U.S. cigarette manufacturers, including RJR Tobacco and B&W, and the parent companies of the major U.S. cigarette manufacturers, including RJR, seeking to recover an unspecified amount in actual and punitive damages. The plaintiffs allege that the defendants participated in a conspiracy to fix or maintain the price of cigarettes sold in the United States. In an opinion dated March 23, 2012, the court granted summary judgment in favor of RJR Tobacco and B&W on the plaintiffs' claims. On July 18, 2014, the Court of Appeals of the State of Kansas affirmed the granting of summary judgment. SANIMAX: Warshafsky Teams Up with Liddle & Dublin in Class Action ----------------------------------------------------------------- Jake Kurtz, writing for DeForest Time-Tribune, reports that two law firms have teamed with a handful of Green Bay area residents to file a class action lawsuit against Sanimax on claims that the rendering plant's emissions have made life difficult for home owners there. The DeForest Times-Tribune first reported on June 19 that Warshafsky Law Firm of Milwaukee and Detroit-based Liddle & Dublin, P.C. had mailed surveys to residents in both DeForest and Howard (northwest of Green Bay) to gauge interest in possible legal action against Sanimax. Filed in Dane County Circuit Court on July 31, the complaint alleges that residential neighborhoods within two miles of Sanimax's Howard operation have been blanketed by offensive odors and the plaintiffs have a goal of "obtaining compensation for the odors they have endured." A complaint pertaining to Sanimax's DeForest operation had not been filed as of Aug. 5. The DeForest plant differs from Howard in that it offers used grease recycling and biodiesel services. "Animal rendering plants have the potential to produce some of the strongest foul odors of any type of industrial facility," Liddle & Dubin attorney Laura Sheets said in a release. "This is especially true where the facility doesn't take the proper precautions to protect their neighbors from odor emissions." According to Liddle & Dublin, Brown County officials received about 50 complaints in 2012 regarding Sanimax and higher totals in subsequent years. "When the odor is present, you can't stand to be outside and we can't open our windows at night without waking up and gagging from the horrific smell," one of the plaintiffs said. "[The odor] makes you feel like a prisoner in your home." Sanimax issued a response on Aug. 1 in light of the Howard lawsuit that said the company has invested almost $3 million in odor- reduction improvements over the years and that the lawsuit "is being driven by out-of-state lawyers and was not even filed in Brown County." Sanimax also said it does not comment on pending litigation and "intends to defend itself vigorously." SATINSKY GROUP: Court Reserves Judgment in R699 Car Scheme Suit --------------------------------------------------------------- Sithandiwe Velaphi, writing for The New Age, reports that lawyers representing three banking institutions against the controversial R699 car scheme argued in the Port Elizabeth High Court on Aug. 7 that the action against their clients should be struck off the roll. This after hundreds of disgruntled consumers approached a Port Elizabeth-based law firm, Pieterse Cary Finlaison, for relief after their deal collapsed last month leaving Absa, Standard Bank and Nedbank to ask for a full payment for consumers who were told their car payments would be reduced by R699 if they drove around pasting the advertisement on their cars. The application has been brought to court for it to certify a class action against banks in a bid to have thousands of contracts declared null and void. Senior counsel Wim Trengove, representing Absa Bank, argued that there was no meaningful commonality between the different cases and the matter concerned did not satisfy the requirements for a class certification. The judgment on the matter was on Aug. 7 reserved by the court. An affected consumer said all he wanted was the banks to take responsibility for the R699 deal. SCHWAN'S HOME: Must Refund Staff for Using Own Phones, Court Says ----------------------------------------------------------------- Food-delivery giant Schwan's must reimburse staff for using their own cellphones for work, a California appeals court ruled on August 12, 2014, reports William Dotinga at Courthouse News Service. Colin Cochran filed a class action against Schwan's Home Service Inc. -- the largest direct-to-home food delivery service in the United States -- on behalf of other customer-service managers who were not being reimbursed for work-related use of their own cellphones. The case went to the Second Appellate District after the Los Angeles County Superior Court found that a lack of commonality foreclosed class certification. Judge Teresa Sanchez-Gordon had said that a class action was not the best way to resolve the issue, noting that examination was required to resolve the question of whether Cochran or his live-in girlfriend paid his cellphone bill. She predicted that similar individual issues would exist across the 1,500-member class. In reversing on August 12, 2014, a three-judge panel for the Second Appellate District found that state labor law requires that employers always reimburse their workers for reasonable expenses related to mandatory personal cellphone use, regardless of the situation. "If an employee is required to make work-related calls on a personal cell phone, then he or she is incurring an expense for purposes of labor law," Judge Judith Ashmann-Gerst wrote for the court. "It does not matter whether the phone bill is paid for by a third person, or at all. In other words, it is no concern to the employer that the employee may pass on the expense to a family member or friend, or to a carrier that has to then write off a loss. It is irrelevant whether the employee changed plans to accommodate worked-related cell phone usage. Also, the details of the employee's cell phone plan do not factor into the liability analysis. Not only does our interpretation prevent employers from passing on operating expenses, it also prevents them from digging into the private lives of their employees to unearth how they handle their finances vis-a-vis family, friends and creditors. To show liability under the labor code, an employee need only show that he or she was required to use a personal cell phone to make work-related calls, and he or she was not reimbursed. Damages, of course, raise issues that are more complicated." The trial court must reconsider certifying the class in light of this interpretation of the labor code, as well as whether statistical sampling will answer the commonality question, Ashmann-Gerst concluded. The appellate case is Colin Cochran v. Schwan's Home Service, Inc., Case No. B247160, in the Court of Appeal of the State of California, Second Appellate District, Division Two. The trial court case is Colin Cochran v. Schwan's Home Service, Inc., Case No. BC449547, in the Superior Court of the State of California for the County of Los Angeles. SHIRE US: Seeks Dismissal of Adderall Antitrust Class Action ------------------------------------------------------------ Allissa Wickham and Melissa Lipman, writing for Law360, report that Shire U.S. Inc. urged a Florida federal judge on Aug. 5 to dismiss a putative class action accusing the company of scheming to delay generic versions of its attention-deficit-hyperactivity drug Adderall XR, arguing that their antitrust theory is "simply implausible." In its dismissal bid, the drugmaker argued that although the consumer plaintiffs contend that Shire conspired to delay generic competition to Adderall, they also acknowledge that the pharmaceutical giant supplied generic versions of the Adderall to other companies for sale in Florida beginning in 2009. "The first amended complaint fails to set out any coherent, plausible theory as to how this alleged conduct injured consumers," Shire claimed in its motion. The company further asserted that the plaintiffs' pre-April 2009 claims are blocked by the statute of limitations, and alleged that the consumers failed to factually back up their claim that Shire's patent suits were sham litigation meant to delay competition. Along with its dismissal bid, Shire also sought summary judgment on all of the plaintiffs' claims on Aug. 5, arguing they lacked standing. Specifically, Shire claimed that regarding the plaintiffs' pre-April 2009 claims, the company never "forced" them to purchase branded Adderall rather than generic versions. "Instead, no generic company could have lawfully sold generic Adderall prior to the April 1, 2009, launch of Shire-supplied generic [Adderall XR] because the U.S. Food and Drug Administration had not approved any generic [Adderall XR] products," the company argued. As for conduct occurring after April 2, 2009, Shire alleged that the named plaintiffs bringing the suit were not injured for reasons the company redacted in its public version of the brief. The consumers brought the suit in April 2013, alleging that Shire inked so-called pay-for-delay settlements with Teva Pharmaceuticals USA Inc. and Impax Laboratories Inc. to resolve allegations that their efforts to market a generic version of Adderall would violate Shire's patents. According to the plaintiffs, those infringement cases were a sham -- part of a broader scheme to first delay the entry of generic competition, and then to restrict generic rivals by failing to supply Teva and Impax with as much of its authorized generic version of the drug as promised under the settlements. The suit brought claims under the Florida Deceptive and Unfair Practices Act, and premised several of the claims on state and federal antitrust law. Michael Brockmeyer -- mbrockmeyer@flhlaw.com -- an attorney with Frommer Lawrence & Haug LLP who is representing Shire, told Law360 on Aug. 6 that with respect to the dismissal motion, the defendants believe the suit fails to state a claim consistent with several recent rulings in Shire's favor in similar cases. As for the summary judgment bid, Brockmeyer said that the case should be axed because Shire's conduct did not bar the plaintiffs from receiving Adderall generics. "We believe that the court should dismiss the case because none of Shire's alleged conduct prevented the plaintiffs from receiving generic Adderall XR and in fact it was Shire's supply of Adderall XR AG product to Teva and Impax that enabled the plaintiffs to obtain generic Adderall XR," Mr. Brockmeyer said. Shire's motions in the Florida suit come roughly two months after the Second Circuit found that company didn't block generic competition for Adderall XR, saying a lower court was correct to dismiss a consolidated class action because Shire's patent licensing agreements didn't raise an antitrust issue. The plaintiffs are represented by Brian Tse-Hua Ku and M. Ryan Casey of Ku & Mussman PA and Alan Kanner, Conlee Whiteley, Cynthia St. Amant, John R. Davis and Brittney N. Bullock of Kanner & Whiteley LLC. Shire is represented by Michael F. Brockmeyer, David A. Zwally -- dzwally@flhlaw.com -- John F. Collins and Edgar H. Haug of Frommer Lawrence & Haug LLP and Eric C. Christu and Daniel J. Barsky -- dbarsky@shutts.com -- of Shutts & Bowen LLP. The case is Barba et al. v. Shire U.S. Inc. et al., case number 1:13-cv-21158, in the U.S. District Court for the Southern District of Florida. SPACE EXPLORATION: Faces Class Action in Calif. Over Mass Layoff ---------------------------------------------------------------- Kurt Orzeck, writing for Law360, reports that Space Exploration Technologies Corp. is facing a putative class action in California court accusing it of not properly notifying its former employees of a mass layoff of up to roughly 400 workers in the state, and not paying them wages earned before termination. The proposed class action, filed on Aug. 4, alleged that SpaceX ordered the mass layoffs of between 200 and 400 workers on or about July 21 without giving advance notice to them, in violation of California's Worker Adjustment and Retraining Notification Act. The putative class comprises all nonexempt employees working at SpaceX facilities in California at any time within four years before the filing of the initial complaint through the date notice is mailed to a certified class who were subject to a mass layoff and didn't receive proper notice. A second proposed class includes employees who weren't paid wages after their termination. "Plaintiffs and other similarly situated employees also seek recovery of waiting time penalties as a result of defendants' failure to pay employees all wages due and owing at the time of their termination," the complaint says. The Cal WARN Act requires employers to provide 60 days' written notice to affected employees of layoffs involving 50 or more employees in a 30-day period, according to the complaint. Employers who fail to do so must pay the affected employees up to 60 days of average regular rate of compensation or final rate of compensation, whichever is higher, the suit says. Among the fired workers were plaintiffs Bobby R. Lee and Bron Gatling, who worked as structural technicians in the company's Hawthorne facility. They claimed SpaceX's failure to pay the fired employees all wages earned before termination in accordance with the California Labor Code was willful. They also accused SpaceX of violating California's Unfair Competition Law through the alleged conduct. In addition to damages in the amount of 60 days' pay and benefits, the suit seeks the value of the cost of any benefits to which the employees would have been entitled had their employment continued, either of them continuing up to 60 days or one-half the number of days SpaceX employed plaintiffs and the Cal WARN class. The suit also seeks pre- and post-judgment interest, as well as attorneys' fees and costs of the suit. Messrs. Lee and Gatling are represented by Lee R. Feldman, Alicia Olivares and Leonard H. Sansanowicz of Feldman Browne Olivares APC. The case is Bobby R. Lee et al. v. Space Exploration Technologies Corp., case number BC552901, in the Superior Court of the State of California, County of Los Angeles. STATE FARM: "Indiana" Suit Added to Auto Body Shop Antitrust MDL ---------------------------------------------------------------- Indiana Autobody Association, Inc., et al v. State Farm Mutual Automobile Insurance Company, et al., Case No. 1:14-cv-00507, was transferred from the U.S. District Court for the Southern District of Indiana to the U.S. District Court for the Middle District of Florida (Orlando). The Florida District Court Clerk assigned Case No. 6:14-cv-06001-GAP-TBS to the proceeding. The lawsuit is included in the multidistrict litigation known as In Re: Auto Body Shop Antitrust Litigation, MDL No. 2557, and Lead Case No. 6:14-md-02557-GAP-TBS. Collectively, there are more than 80 insurers named as defendants in the actions. The Plaintiffs allege a conspiracy in the automobile insurance industry to suppress the reimbursement rates for automobile collision repairs, in violation of the Sherman Antitrust Act and various state laws. The Plaintiffs in the "Indiana" case are represented by: Allison P. Fry, Esq. John Arthur Eaves, Jr., Esq. JOHN ARTHUR EAVES ATTORNEYS AT LAW 101 North State Street Jackson, MS 39201 Telephone: (601) 355-7961 Facsimile: (601) 355-0530 E-mail: allison@eaveslaw.com johnjr@eaveslaw.com - and - Mark W. Sniderman, Esq. SNIDERMAN NGUYEN LLP 47 S. Meridian Street, Suite 400 Indianapolis, IN 46204 Telephone: (317) 361-4700 Facsimile: (317) 464-5111 E-mail: mark@snlawyers.com Defendants State Farm Mutual Automobile Insurance Company, State Farm Fire and Casualty Company and State Farm General Insurance Company are represented by: Brent R. Austin, Esq. Michael L. McCluggage, Esq. EIMER STAHL LLP 224 S Michigan Avenue, Suite 1100 Chicago, IL 60604 Telephone: (312) 660-7684 E-mail: baustin@eimerstahl.com mmccluggage@eimerstahl.com - and - John B. Drummy, Esq. KIGHTLINGER & GRAY 211 North Pennsylvania Street One Indiana Square, Suite 300 Indianapolis, IN 46204 Telephone: (317) 638-4521 Facsimile: (317) 636-5917 E-mail: jdrummy@k-glaw.com - and - Michael Kenny, Esq. ALSTON & BIRD LLP One Atlantic Center 1201 West Peachtree Street Atlanta, GA 30309 Telephone: (404) 881-7179 Facsimile: (404) 253-8682 E-mail: mike.kenny@alston.com Defendants Progressive Casualty Insurance Company, Progressive American Insurance Company, Progressive Classic Insurance Company, Progressive Direct Insurance Company and Progressive Max Insurance Company are represented by: Michael R. Nelson, Esq. Kymberly Kochis, Esq. NELSON LEVINE DE LUCA & HAMILTON, LLC 17 State Street, 29th Floor New York, NY 10004 Telephone: (212) 233-0130 Facsimile: (212) 233-0172 E-mail: mnelson@nldhlaw.com kkochis@nldhlaw.com - and - Christine A. Hopkinson, Esq. Jeffrey S. Cashdan, Esq. KING & SPALDING, LLP 1180 Peachtree St NE Atlanta, GA 30309-3521 Telephone: (404) 572-3560 Facsimile: (404) 572-5139 E-mail: chopkinson@kslaw.com jcashdan@kslaw.com - and - Eric C. McNamar, Esq. John Carl Trimble, Esq. LEWIS WAGNER LLP 501 Indiana Avenue, Suite 200 Indianapolis, IN 46202 Telephone: (317) 237-0500 Facsimile: (317) 630-2790 E-mail: emcnamar@lewiswagner.com jtrimble@lewiswagner.com - and - Kimberly E. Howard, Esq. SMITH FISHER MAAS & HOWARD, P.C. 7209 N. Shadeland Ave. Indianapolis, IN 46250 Telephone: (317) 578-1900 Facsimile: (317) 578-1330 E-mail: khoward@smithfisher.com Defendant Indiana Farmers Mutual Insurance Company is represented by: Brian Scott Jones, Esq. Curtis T. Jones, Esq. Joel T. Nagle, Esq. BOSE MCKINNEY & EVANS, LLP 111 Monument Circle, Suite 2700 Indianapolis, IN 46204 Telephone: (317) 684-5462 Facsimile: (317) 223-0462 E-mail: b.jones@boselaw.com cjones@boselaw.com jnagle@boselaw.com Defendants Allstate Indemnity Company, Allstate Insurance Company, Allstate Property and Casualty Insurance Company and Allstate Vehicle And Property Insurance Company are represented by: Bonnie Lau, Esq. DENTONS US LLP 525 Market Street, 26th Floor San Francisco, CA 94105 Telephone: (415) 882-5083 Facsimile: (415) 882-0300 E-mail: bonnie.lau@dentons.com - and - Richard L. Fenton, Esq. DENTONS US LLP 233 S Wacker Dr., Suite 7800 Chicago, IL 60606 Telephone: (312) 876-8000 Facsimile: (312) 876-7934 E-mail: richard.fenton@dentons.com - and - Rebecca Jean Maas, Esq. SMITH FISHER MAAS & HOWARD 7209 North Shadeland Avenue Indianapolis, IN 46250 Telephone: (317) 578-1900 Facsimile: (317) 578-1330 E-mail: rmaas@smithfisher.com Defendants GEICO General Insurance Company and Geico Indemnity Company are represented by: Dan W. Goldfine, Esq. Ian M. Fischer, Esq. SNELL & WILMER, LLP 400 E Van Buren, Suite 1900 Phoenix, AZ 85004-2202 Telephone: (602) 382-6282 Facsimile: (602) 382-6070 E-mail: dgoldfine@swlaw.com ifischer@swlaw.com - and - Debra H. Miller, Esq. MILLER & FISHER LLC 8900 Keystone Crossing, Suite 1080 Indianapolis, IN 46240 Telephone: (317) 536-7577 Facsimile: (317) 536-7579 E-mail: miller@millerfisher.com Defendants Shelter General Insurance Company and Shelter Mutual Insurance Company are represented by: Julia E. Dimick, Esq. ALERDING CASTOR HEWITT LLP 47 S. Pennsylvania Street, Suite 700 Indianapolis, IN 46204 Telephone: (317) 829-1910 Facsimile: (317) 423-2089 E-mail: jdimick@alerdingcastor.com Defendants Nationwide Mutual Insurance Company, Nationwide Property and Casualty Insurance Company and Nationwide Assurance Company are represented by: Kathleen Ann DeLaney, Esq. DELANEY & DELANEY LLC 3646 North Washington Blvd. Indianapolis, IN 46205 Telephone: (317) 920-0400 Facsimile: (317) 920-0404 E-mail: kathleen@delaneylaw.net - and - Michael Beekhuizen, Esq. Michael Carpenter, Esq. CARPENTER LIPPS & LELAND LLP 280 North High Street, Suite 1300 Columbus, OH 43215 Telephone: (614) 365-4100 Facsimile: (614) 365-9145 E-mail: beekhuizen@carpenterlipps.com carpenter@carpenterlipps.com - and - Peter T. Snow, Esq. FARUKI, IRELAND & COX, PLL 500 Courthouse Plaza SW 10 N Ludlow St. Dayton, OH 45402 Telephone: (614) 365-4117 Facsimile: (614) 365-9145 E-mail: snow@carpenterlipps.com Defendant American Family Mutual Insurance Company is represented by: Heather Carson Perkins, Esq. Michael S. McCarthy, Esq. FAEGRE BAKER & DANIELS LLP 3200 Wells Fargo Center 1700 Lincoln Street Denver, CO 80203-4532 Telephone: (303) 607-3703 Facsimile: (303) 607-3600 E-mail: heather.perkins@faegrebd.com michael.mccarthy@faegrebd.com - and - Kathy Lynn Osborn, Esq. Ryan Michael Hurley, Esq. Sarah Jenkins, Esq. FAEGRE BAKER DANIELS LLP 300 North Meridian Street, Suite 2700 Indianapolis, IN 46204 Telephone: (317) 237-0300 Facsimile: (317) 237-1000 E-mail: kathy.osborn@faegrebd.com ryan.hurley@FaegreBD.com sarah.jenkins@FaegreBD.com Defendants Zurich American Insurance Company and Zurich American Insurance Company of Illinois are represented by: Cynthia M. Locke, Esq. CANTRELL STRENSKI & MEHRINGER, LLP 150 W. Market Street, Suite 800 Indianapolis, IN 46204 Telephone: (317) 352-3500 Facsimile: (317) 352-3501 E-mail: clocke@csmlawfirm.com Defendant Liberty Mutual Insurance Company is represented by: Dennis F. Cantrell, Esq. CANTRELL, STRENSKI & MEHRINGER, LLP 150 West Market Street, Suite 800 Indianapolis, IN 46204 Telephone: (317) 352-3500 Facsimile: (317) 352-3501 E-mail: dcantrell@csmlawfirm.com - and - Ernest E. Vargo, Esq. Michael E. Mumford, Esq. BAKER & HOSTETLER, LLP 3200 National City Center 1900 E 9th St. Cleveland, OH 44114-3485 Telephone: (216) 621-0200 Facsimile: (216) 696-0740 E-mail: evargo@bakerlaw.com mmumford@bakerlaw.com SUBURBAN RADIOLOGIC: Mag. Judge Report Adopted in "Hartley" Suit ---------------------------------------------------------------- District Judge John R. Tunheim entered an order adopting the report and recommendation of the United States Magistrate Judge in the case captioned KEITH HARTLEY, on behalf of himself and all others similarly situated, Plaintiff, v. SUBURBAN RADIOLOGIC CONSULTANTS, LTD. And CT INC. SERVICES, and assumed name for Colltech Inc., Defendants, CIVIL NO. 11-2664 (JRT/JJG), (D. Minn.). According to Judge Tunheim's August 7, 2014 order, a copy of which is available at http://is.gd/GUgXv2from Leagle.com, the Joint Motion for Final Approval of Class Action Settlement Agreement and Plaintiff's Unopposed Motion for Attorney's Fees & Costs are granted. The Settlement Class is defined as: all persons/consumers residing in Minnesota to whom letters/message alerts, similar to Exhibit 1, were sent during the Class Period. The Court awarded reasonable and necessary attorneys' fees and expenses to Class Counsel in the amount of $87,500.00. The Court further awarded Plaintiff Keith Hartley a class representative award of $7,000.00. Mark L Vavreck -- mvavreck@mgvlawfirm.com -- MARTINEAU, GONKO & VAVRECK, PLLC, 401 North Third Street, Suite 600, Minneapolis, MN 55401, Thomas J Lyons -- tlyons@lyonslawfirm.com -- LYONS LAW FIRM, P.A., 367 Commerce Court, Vadnais Heights, MN 55127, for plaintiff. Matthew R Doherty -- mdoherty@brutlaw.com -- Ryan Trucke -- rtrucke@brutlaw.com -- BRUTLAG, HARTMANN & TRUCKE, PA, 3555 Plymouth Boulevard, Suite 117m Plymouth, MN 55447, for defendants. SUNRISE PROPANE: Judge Approves C$23-Mil. Class Action Settlement ----------------------------------------------------------------- Alyshah Hasham and Tara Deschamps, writing for Toronto Star, report that a settlement in a class action over explosions at the Sunrise Propane plant has been approved. The early morning explosions at the Sunrise Propane plant sounded like bombs. The ceilings in Josephine Schieda's Downsview home collapsed, and as dark mushroom clouds rained poisonous asbestos, thousands were forced to evacuate the area. Almost exactly six years later, the compensation battle for 6,000 residents, including Ms. Schieda, is over. On Aug. 7, Superior Court Justice Barbara Conway approved the C$23-million settlement in the class-action lawsuit reached during mediation led by former Chief Justice of Ontario Warren Winkler. The settlement was "fair, reasonable and in the best interest of the class," ruled Justice Conway. "We are just delighted and we know that the class will be very grateful to know the claims procedure can start," said Harvin Pitch, one of the lawyers representing the residents. Ms. Schieda and her home have never been quite the same since Aug. 10, 2008. The house, where she and her husband have lived since 1977 and raised their children, is still undergoing repairs. "Yeah, that's great that they come with this settlement, but it's not going to heal the wounds. I will always have (emotional) scars. I don't want this to happen to some other poor soul in another area," the 57-year-old told the Star through tears. "Even the money is not going to make everybody feel better, based on what happened." What she wanted -- and didn't get -- was someone taking responsibility for what happened. "I still haven't heard anyone say, 'Yeah, it was our fault. Yeah, we did it.'" The settlement sets aside C$7,909,500 for about 6,000 residents living in the area within Keele St., Dufferin St., Highway 401 and Sheppard Ave. Class members will be compensated for the number of days they were forced to leave their homes, and for personal injuries, out-of- pocket expenses, loss of income and damages not covered by insurance, said lawyer Ted Charney, who also represented the residents. "We think the money is going to be quite good in terms of compensating everyone for their individual losses," he said. Residents will be able to file claims in the coming months and should have money in their pockets within a year, Mr. Charney said. The settlement also gives the same amount -- C$7,909,500 -- to insurance companies and the City of Toronto. The remainder of the settlement will go towards legal fees and costs incurred by the several law firms representing the residents, as well as administrative costs for processing the claims. Mr. Pitch noted that eight property insurance companies objected to the legal fees outlined in the settlement and argued for more money to be allocated to them. "The judge said that's ridiculous," Mr. Pitch said. Sunrise Propane, which is now defunct, contributed its maximum insurance amount of C$9 million. Twelve other defendants, including hose companies and the industry's self-regulating body, the Technical Standards and Safety Authority, contributed unspecified sums to make up the C$23 million. Parminder Singh Saini, a 25-year-old worker killed during the blast, was an employee of Sunrise and therefore not eligible to be part of the class-action lawsuit, Mr. Charney said. The explosion also claimed the life of off-duty firefighter Bob Leek, who died of a heart attack while responding to the fire. Last year, Sunrise Propane and two of its directors, Shay Ben-Moshe and Valery Belshov, were found guilty of breaching environmental and worker safety regulations. The court found that the explosions occurred during an illegal truck-to-truck propane transfer. A sentencing hearing continues. SWISHER HYGIENE: Wins Final OK of $5.5MM Securities Suit Deal ------------------------------------------------------------- District Judge Graham C. Mullen entered an order and final judgment approving the settlement in IN RE SWISHER HYGIENE, INC. SECURITIES AND DERIVATIVE LITIGATION, DOCKET NO. 3:12-MD-2384-GCM, (W.D. N.C.). A copy of Judge Mullen's August 6, 2014 Order is available at http://is.gd/pzgSBSfrom Leagle.com. The Court found the Settlement to be fair, reasonable, adequate, and in the best interests of the Class. Judge Mullen dismissed with prejudice in their entirety the Consolidated Class Action and related Putative Securities Actions as to Defendants and against Lead Plaintiffs and all other members of the Class on the merits and without costs. The Court dismissed the Consolidated Class Action with prejudice, and ordered the settlement and release of any and all claims against the Defendants. Plaintiffs' Counsel were awarded attorneys' fees of 25% of the Settlement Payment and reimbursement of expenses in the amount of $61,111.92. In making this award of attorneys' fees and reimbursement of expenses to be paid from the Settlement Fund, the Court has considered and found, among other things, that: a. the Settlement has created a fund of $5,500,000 in cash, plus interest, and that numerous Class Members who submit acceptable Proofs of Claim will benefit from the Settlement created by Lead Counsel; b. Over 35,677 copies of the Notice were disseminated to putative Class Members indicating that Plaintiffs' Counsel was moving for attorneys' fees in the amount of up to 25% of the Settlement Payment and for reimbursement of expenses in an amount of approximately $85,000 and no objections were filed against the terms of the proposed Settlement or the ceiling on the fees and expenses requested by Plaintiffs' Counsel contained in the Notice; and c. Lead Counsel has devoted 1,671.05 hours, with a lodestar value of $859,909, to achieve the Settlement. Norman Russell, Plaintiff, represented by Gary W. Jackson, The Jackson Law Group, PLLC & Jeremy Allan Lieberman, Pomerantz Haudek Grossman & Gross LLP. Michael C. Birch, Case No. 3:12cv221, Plaintiff, represented by Gary W. Jackson, The Jackson Law Group, PLLC. Lisa M. Birch, Plaintiff, represented by Gary W. Jackson, The Jackson Law Group, PLLC. Michael B. Cohen, Plaintiff, represented by Gary W. Jackson, The Jackson Law Group, PLLC. Timothy J. Falk, Plaintiff, represented by Gary W. Jackson, The Jackson Law Group, PLLC. Bruce James, Plaintiff, represented by Brian Philip Murray, Murray Frank LLP, Lionel Z. Glancy, Glancy Binkow & Goldberg LLP, Michael Goldberg, Glancy Binkow & Goldberg LLP & Robert V. Prongay, Glancy Binkow & Goldberg LLP. Tom Borthwick, Plaintiff, represented by Norris Arden Adams, II. Glen Miller, Plaintiff, represented by Alfred J. Bennington, Jr., Shutts & Bowen LLP, Eric C. Christu, Shutts & Bowen LLP & Krista Sue Kovalcin, Shutts & Bowen LLP. Neal Rodrigue, Plaintiff, represented by Alfred J. Bennington, Jr., Shutts & Bowen LLP, Eric C. Christu, Shutts & Bowen LLP & Krista Sue Kovalcin, Shutts & Bowen LLP. The Hermine Rodrigue Testamentary Trust for Kera Rodrigue, Plaintiff, represented by Alfred J. Bennington, Jr., Shutts & Bowen LLP, Eric C. Christu, Shutts & Bowen LLP & Krista Sue Kovalcin, Shutts & Bowen LLP. The Robert Rodrigue Testamentary Trust for Hayden Rodrigue, Plaintiff, represented by Alfred J. Bennington, Jr., Shutts & Bowen LLP, Eric C. Christu, Shutts & Bowen LLP & Krista Sue Kovalcin, Shutts & Bowen LLP. 14cv2387 Miller Plaintiffs, Plaintiff, represented by Alfred J. Bennington, Jr., Shutts & Bowen LLP, Eric C. Christu, Shutts & Bowen LLP & Krista Sue Kovalcin, Shutts & Bowen LLP. Robert Harris, Plaintiff, represented by Ejola Christlieb Cook, The Ticktin Law Group, P.A.. Swisher Hygiene, Inc., Defendant, represented by James Patrick McLoughlin, Jr., Moore & Van Allen, Jay B. Kasner, Skadden, Arps, Slate, Meagher & Flom LLP, Jonathan Michael Watkins, Moore & Van Allen, PLLC, Paul J. Lockwood, Skadden, Arps, Slate, Meagher & Flom LLP, Scott D. Musoff, Skadden, Arps, Slate, Meagher & Flom LLP, Stanley H. Wakshlag, Kenny Nachwalter, P.A., Stuart Harold Singer, Boies, Schiller & Flexner & Valecia M. McDowell, Moore & Van Allen. Steven R. Berrard, Defendant, represented by David Nelson, Boies Schiller & Flexner, Stanley H. Wakshlag, Kenny Nachwalter, P.A. & Stuart Harold Singer, Boies, Schiller & Flexner. Michael J. Kipp, Defendant, represented by Eric Bruce, Kobre & Kim, LLP, Justin Sommers, Kobre & Kim, LLP & Sean Casey, Kobre & Kim, LLP. Clarence Arsenault, Defendant, represented by Daniel Isaac Wolf, Brower Piven, Patrick W. Powers, Powers Taylor LLP, Peyton J. Healey, Powers Taylor LLP & Willie Charles Briscoe, The Briscoe Law Firm, PLLC. H. Wayne Huizenga, Defendant, represented by Stanley H. Wakshlag, Kenny Nachwalter, P.A. & Stuart Harold Singer, Boies, Schiller & Flexner. Hugh H Cooper, Defendant, represented by Cory Hohnbaum, King & Spalding LLP, James Andrew Pratt, King & Spalding LLP, Michael R. Smith, King & Spalding & Bradley Jason Lingo, King & Spalding LLP. The Robert Rodrigue Testamentary Trust for Kera Rodrigue, Defendant, represented by Alfred J. Bennington, Jr., Shutts & Bowen LLP, Eric C. Christu, Shutts & Bowen LLP & Krista Sue Kovalcin, Shutts & Bowen LLP. John Nobel, Movant, represented by Joseph R. Seidman, Jr., Bernstein Liebhard, LLP, Paul Robert Dickinson, Jr, Lewis & Roberts, PLLC & Uri Seth Ottensoser, Bernstein Liebhard LLP. Bryan T. McMahon, Movant, represented by Joseph R. Seidman, Jr., Bernstein Liebhard, LLP, Paul Robert Dickinson, Jr, Lewis & Roberts, PLLC & Uri Seth Ottensoser, Bernstein Liebhard LLP. Joseph Meives, Movant, represented by Joseph R. Seidman, Jr., Bernstein Liebhard, LLP, Paul Robert Dickinson, Jr, Lewis & Roberts, PLLC & Uri Seth Ottensoser, Bernstein Liebhard LLP. James F. Caird, Movant, represented by Gary W. Jackson, The Jackson Law Group, PLLC, Jason Mathew Leviton, Block & Leviton LLP & Jeffrey C. Block, Block & Leviton LLP. Harry F. Noyes, Movant, represented by Gary W. Jackson, The Jackson Law Group, PLLC, Jason Mathew Leviton, Block & Leviton LLP & Jeffrey C. Block, Block & Leviton LLP. Eugene W. Stranch, Movant, represented by Gary W. Jackson, The Jackson Law Group, PLLC, Jason Mathew Leviton, Block & Leviton LLP & Jeffrey C. Block, Block & Leviton LLP. Raymond D Curtin, Movant, represented by Jeremy Allan Lieberman, Pomerantz Haudek Grossman & Gross LLP. Alan Rubin, Movant, represented by Jeremy Allan Lieberman, Pomerantz Haudek Grossman & Gross LLP. Gus Gambatese, Movant, represented by Kim Elaine Miller, Kahn Swick & Foti, LLC. T-MOBILE USA: Faces Suit Over Botched 911 Call Resulting in Death ----------------------------------------------------------------- Vickie Cook, Individually and As Natural Mother to Deanna Cook, N.W., a Minor, By and Through Her Grandparent and Guardian Vickie Cook, A.W., a Minor, By and Through Her Grandparent and Guardian Vickie Cook and Karletha Cook-Gundy, Individually and As Representative of the Estate of Deanna Cook, Deceased v. T-Mobile USA, Inc., MetroPCS Communications, Inc., Samsung Electronics Co., Ltd., Samsung Telecommunications America, LLC, The City of Dallas, and Angelia Herod-Graham, Case No. 3:14-cv-02907-G (N.D. Tex., August 13, 2014) alleges that the Plaintiffs were intentionally treated differently from others similarly situated. On August 17, 2012, Deanna Cook, a person known to police to have been involved in, and seemingly escaped, a domestically violent relationship, cried out to the Dallas Police Department for assistance and to save her life. Ms. Cook died as the 9-1-1 operator and police dispatcher were unable timely to obtain her Cook's home address, leading to a delay in responding to her life- threatening 9-1-1 call, the Plaintiffs contend. They allege that this delay prohibited police and first responders from timely providing police protection and medical attention to Ms. Cook, thus, allowing her to die. Vickie Cook is a resident of Dallas County, Texas, and the mother of Deanna Cook. Plaintiffs N.W. and A.W. are minors residing in Dallas and bring this action by and through their grandmother/guardian, Vickie Cook and Karletha Cook-Gundy. Ms. Cook-Gundy is the Independent Administrator of the Estate of Deanna Cook. T-Mobile USA, Inc. is a Washington corporation that provides wireless voice, messaging and data services in the U.S., Puerto Rico, and the U.S. Virgin Islands. MetroPCS is a Delaware corporation headquartered in Richardson, Texas. MetroPCS provides wireless voice, messaging and data services in the United States. Samsung Electronics is a global company involved in technology encompassing televisions, smartphones, personal computers, printers, cameras, home appliances, LTE systems, medical devices, semiconductors and LED solutions. Samsung Mobile, a Dallas-based subsidiary of Samsung Electronics, researches, develops and markets wireless handsets, wireless infrastructure and other telecommunications products throughout North America. The City of Dallas is a municipality of the state of Texas. The City funds and operates the City of Dallas Police Department. The City is also responsible for ensuring that all of its facilities, including the 9-1-1 call center, where Angelia Herod-Graham worked, are in compliance with federal and state law, department or agency policies, rules, and regulations, and related standards of care. The Plaintiffs are represented by: Aubrey "Nick" Pittman, Esq. THE PITTMAN LAW FIRM, P.C. 100 Crescent Court, Suite 700 Dallas, TX 75201-2112 Telephone: (214) 459-3454 Facsimile: (214) 853-5912 E-mail: pittman@thepittmanlawfirm.com TENG SOUTH: Removed "Lopez" Suit to Southern District of Florida ---------------------------------------------------------------- The class action lawsuit captioned Lopez v. Teng South III, LLC, Case No. 14009922, was removed from the 17th Judicial Circuit, in and for Broward County, Florida, to the U.S. District Court for the Southern District of Florida (Ft. Lauderdale). The District Court Clerk assigned Case No. 0:14-cv-61839-CMA to the proceeding. The Complaint includes a count for alleged failure to pay the Plaintiff's overtime in accordance with the Fair Labor Standards Act. The Plaintiff is represented by: Anthony Georges-Pierre, Esq. REMER & GEORGES-PIERRE, PLLC 44 West Flagler St., Suite 2200 Miami, FL 33130 Telephone: (305) 416-5000 Facsimile: (305) 416-5005 E-mail: agp@rgpattornevs.com The Defendant is represented by: Carmen Rodriguez, Esq. LAW OFFICES OF CARMEN RODRIGUEZ, P.A. Palmetto Bay Centre 15715 South Dixie Highway, Suite 411 Miami, FL 33157 Telephone: (305)254-6101 Facsimile: (305) 254-6048 E-mail: crlaborlaw@gmail.com TEXAS GILA: Obtains Summary Judgment Ruling in TCPA Class Action ---------------------------------------------------------------- In the putative class action captioned Brian Ranwick, on behalf of himself and all others similarly situated, Plaintiff, v. Texas Gila, LLC, a Texas limited liability corporation d/b/a Municipal Services Bureau, Defendant, CIV. NO. 13-2792 (RHK/SER), (D. Minn.), the Plaintiff alleges Texas Gila called his cellular phone to collect a debt he owed to the Minnesota Department of Revenue (DOR) using an automated or prerecorded voice, in violation of the Telephone Consumer Protection Act, 47 U.S.C. Section 227 (TCPA). The first phase of discovery is complete and Texas Gila moved for summary judgment. District Judge Richard H. Kyle granted the motion in a memorandum opinion and order dated August 7, 2014, a copy of which is available at http://is.gd/6Gn7g0from Leagle.com. Judge Kyle pointed out that on May 25, 2012, Mr. Ranwick contacted the DOR regarding the fines he owed for the two parking citations. During that phone call, he confirmed his contact information for the DOR -- including his cell phone number. The DOR then informed him that it had placed the debt with a collection agency, and it gave him a number at which he could reach Texas Gila to resolve the matter. "As Ranwick provided his cell phone number to the DOR in connection with the same debt about which Texas Gila called him and Ranwick never attempted to revoke his consent or limit the DOR's or Texas Gila's use of his cell phone number, Texas Gila did not violate the TCPA and is entitled to summary judgment on Ranwick's claim," Judge Kyle concluded. The Complaint is dismissed with prejudice and Mr. Ranwick's motion to certify a class is denied as moot. Nicholas R. Nowicki -- nik@mcnowick.com -- Brandon T. McDonough -- brandon@mcnowick.com -- McDonough & Nowicki PLLC, Minneapolis, Minnesota, for Plaintiff. Issa K. Moe -- Issa.Moe@lawmoss.com -- Michael S. Poncin -- Mike.Poncin@lawmoss.com -- James R. Bedell -- Jim.Bedell@lawmoss.com -- Moss & Barnett, PA, Minneapolis, Minnesota, for Defendant. THINKDIRECT MARKETING: Removed "Scali" Suit to M.D. Florida ----------------------------------------------------------- The class action lawsuit styled Scali v. Thinkdirect Marketing Group, Inc., et al., Case No. 14-004693-CI, was removed from the 6th Judicial Circuit, in and for Pinellas 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-01919-JDW-TBM to the proceeding. The lawsuit is brought under the Fair Labor Standards Act. The Plaintiff is represented by: Christopher D. Gray, Esq. Rachael Lynne Wood, Esq. FLORIN ROEBIG, PA 777 Alderman Rd. Palm Harbor, FL 34683 Telephone: (727) 786-5000 Facsimile: (727) 772-9833 E-mail: cdg@FlorinRoebig.com rwood@florinroebig.com The Defendants are represented by: Jonathan Wayne Oliff, Esq. Kevin E. Hyde, Esq. FOLEY & LARDNER, LLP 1 Independent Dr., Suite 1300 PO Box 240 Jacksonville, FL 32201-0240 Telephone: (904) 359-2000 Facsimile: (904) 359-8700 E-mail: joliff@foley.com khyde@foley.com - and - Reed Russell, Esq. PHELPS DUNBAR, LLP 100 S Ashley Dr., Suite 1900 Tampa, FL 33602-5311 Telephone: (813) 472-7550 Facsimile: (813) 472-7570 E-mail: reed.russell@phelps.com TRADER JOE'S: Court Suspended Trial in Mislabeling Class Suit ------------------------------------------------------------- A federal judge has suspended proceedings on a class action that accuses Trader Joe's of violating food labeling regulations, particularly in using the phrase "evaporated cane juice," according to Arvin Temkar, writing for Courthouse News Service. U.S. District Judge Vince Chhabria ruled on Aug. 8 that claims by Amy Gitson et al. should be stayed while the Food and Drug Administration reviews its position on the term "evaporated cane juice." The plaintiffs claimed in their March 2013 lawsuit that Trader Joe's products are misleadingly labeled. As evidence, the plaintiffs submitted warning letters to Trader Joes from the Food and Drug Administration that said ingredients should be listed by their common names -- "evaporated cane juice," for instance, is a sweetener derived from sugar cane syrup. Chhabria ruled that because the FDA is reviewing its guidelines on the term for the first time since 2009, the court should withhold judgment. If the FDA does not make a decision or if the process takes too long, the court will reconsider its stay. "Because it would be a waste of judicial and party resources to carry out this lawsuit piecemeal, the plaintiff's other claims are also stayed," he wrote. The judge also denied an interlocutory appeal filed in March by Trader Joe's. The company took issue with the plaintiffs' decision to make claims based on foods they didn't purchase, but are similar to ones they did. Chhabria ruled that because the case is focused on labels, which take a common form, establishing any of the labels as misleading would suffice. The plaintiffs will be allowed to continue with class allegations. The case is Amy Gitson, et al. v. Trader Joe's Company, Case No. 3:13-cv-01333-VC, in the U.S. District Court for the Northern District of California. TREASURY WINE: Seeks Transfer of Suit to Victoria High Court ------------------------------------------------------------ Katherine Towers, writing for The Australian, reports that Maurice Blackburn and lawsuit funder IMF could be forced to deal with litigation maverick Mark Elliott over the Treasury Wine Estate class action, after the besieged global wine giant applied to have two separate class actions against it heard together. Treasury applied to the Federal Court to have the Sydney-based class action being run by Maurice Blackburn transferred to the Victorian Supreme Court, where Mr. Elliott is running a second class action. If successful, Maurice Blackburn and IMF, who have launched a closed class action worth tens of millions of dollars on behalf of 619 TWE shareholders, would be forced to deal with Mr. Elliott, who is running an open class action on behalf of all the shareholders for an unspecified sum. Both class actions allege that current takeover target Treasury breached continuous disclosure laws and misled the market over last year's profit downgrade. Treasury, makers of Penfolds, Wolf Blass, Rosemount and Beringer, has vowed to fight both actions that flowed from its spectacular AUD160 million July 2013 writedown and revelations that AUD33 million of wine would have to be poured down the drain. Mr. Elliott said it was "inevitable" the two class actions would be brought together because they alleged the same factual circumstances and made the same complaints. "It seems logical that the two cases should come together and I would welcome the big end of town in Maurice Blackburn backed by IMF assisting my lawyers to hold Treasury accountable for their scandalous behavior," Mr. Elliott said. "Whether Maurice Blackburn and IMF are sitting at the bar table next to my barrister and solicitor or whether ultimately we might even joint venture -- it's all a positive step." Maurice Blackburn principal Rebecca Gilsenan said a decision had yet to be made on whether to fight the transfer application. "We will assess whether a transfer to the Victorian Supreme Court is in the interests of our clients regardless of Mr. Elliott's perspective," she said. The Federal Court will hear the application to have the matter moved to the Victorian Supreme Court on September 10. Mr. Elliott suffered a blow in the Treasury class action last month when the Victorian Supreme Court ruled against his controversial litigation model, where the former Minter Ellison partner was acting as solicitor in the case and his private company, Melbourne City Investments, was lead plaintiff. He was personally funding the case on a no-win, no-fee basis. TRW AUTOMOTIVE: Settles Price-Fixing Suits by Vehicle Purchasers ---------------------------------------------------------------- TRW Automotive Holdings Corp. has settled, for an amount that is immaterial to the Company, certain purported class action lawsuits on behalf of vehicle purchasers, lessors and dealers, alleging that the Company and certain of its competitors conspired to fix and raise prices for Occupant Safety Systems products, according to its Form 10-Q filed on July 29, 2014 with the Securities and Exchange Commission for the quarterly period ended July 27, 2014. These lawsuits were filed on various dates from June 2012 through July 2013 and were consolidated in the United States District Court for the Eastern District of Michigan. Once the court approves the settlements, those cases will be dismissed. Class action lawsuits filed against the Company on various dates from June 2012 through May 2014 in the United States District Court for the Eastern District of Michigan on behalf of direct purchasers and in various courts in Canada on behalf of vehicle purchasers, lessors, dealers and direct purchasers remain pending, which the Company intends to vigorously defend. Management believes that the ultimate resolution of those cases will not have a material adverse effect on the Company's financial condition, results of operations or cash flows. TRW Automotive Holdings Corp. is among the world's largest and most diversified suppliers of automotive systems, modules and components to global automotive original equipment manufacturers ("OEMs") and related aftermarkets. The Company conducts substantially all of its operations through subsidiaries. UNITED STATES: Tried to Remove Info From NSA Surveillance Case -------------------------------------------------------------- The federal government in June asked to secretly remove information from a high-profile NSA spying case, prompting outrage from privacy experts and attorneys, reports Arvin Temkar at Courthouse News Service, citing certain unsealed court documents. The documents recently released by the Electronic Frontier Foundation detail a government request to remove information from the transcript of a June 6 hearing in Jewel v. NSA, a case fighting the NSA's surveillance of U.S. Internet and phone records. The documents, available on EFF's website , include a government letter to the Northern District of California asking for permission to change the transcript and a judge's final ruling to make the secret proceedings public. A week after the June 6 hearing, the government said the NSA was worried that classified information may have been revealed in court. "We request that an advance copy of the transcript be provided . . . to make a determination as to whether the transcript in fact contains classified information," government attorney Marcia Berman wrote in a letter to U.S. District Judge Jeffrey White. "If it does we would then request an opportunity to remove any classified material by revising the transcript before it is provided to any of the parties or made publicly available." The government wanted to make these changes privately, before the plaintiffs or plaintiffs' attorneys with the Electronic Frontier Foundation could look at the transcripts, court documents show. "That's an improper request," said EFF Legal Fellow Andrew Crocker. "This is a transcript of a hearing that was held in open court. There was press there, our lawyers were there, the public was there. It was a serious First Amendment concern to make that kind of request." White decided the plaintiffs had a right to know about the government's request and alerted EFF. The organization responded on June 20, contesting the government's proposal on First Amendment grounds. "The Supreme Court [has] repeatedly rejected attempts to prohibit or punish the publication of confidential material when that material was inadvertently disclosed to the public," the EFF said in a statement. The privacy advocates also argued that the government should not be allowed to "remove" information without at least marking where things have been changed, a process known as redaction. In mid-July White granted the government 2 1/2 weeks to review the transcript and to make a case for what, if any, information should be removed. On July 28, after going over the papers, the government said it found that no classified information had accidentally been leaked. Crocker said he could not speculate as to what specific information the government was concerned about. The June hearing was about whether the NSA could destroy information it collected related to the Jewel case. The next week the judge granted EFF's motion to unseal the records, after which the group posted all of the information, including the disputed transcript, on its Web site. "The public has the right to know what was said in these briefs," Crocker said. "Part of our goal as an organization is to bring transparency to these issues and the way these courts operate." Jewel v. NSA was filed in 2008, long before whistleblower Edward Snowden directed the world's attention to the government agency's spying practices. It stems from a 2006 revelation by another whistleblower, former AT&T telecommunications technician Mark Klein, who showed that AT&T was routing copies of emails, Web browsing data and other Internet information to a secret NSA- controlled location in San Francisco. The class action suit filed by EFF on behalf of AT&T customers aims to end mass surveillance techniques such as collecting Internet content and phone records. A breakthrough for EFF came a year ago when the court rejected the government's attempt to invoke a "state secrets" privilege that could have gotten the case dismissed. White ruled that the case should be litigated under the Foreign Intelligence Surveillance Act, which allows people who have been spied on electronically to sue, the EFF said. But the case was sidetracked in March, when EFF discovered that the government may have been illegally destroying surveillance records related to the Jewel case, Crocker said. EFF filed an emergency motion to force the government to preserve these records, but the government argued it would be too burdensome and could affect national security . The NSA's databases are programmed to automatically delete raw data after a certain time, the government said. Significantly changing the databases could force a large-scale shutdown that would affect the NSA's other intelligence operations. On June 6 White sided with the government, allowing the destruction of records to continue. Crocker said the EFF hopes to prove that the government destroyed records in the Jewel case, which could bolster the plaintiffs' legal argument. Meanwhile, the organization is preparing to argue that government surveillance violates the Fourth Amendment. "We've seen a lot of movement in the last year or so," Crocker said. "Polls have shown that people do care quite a bit about this and are on our side." WELLS FARGO: Dist. Court Dismisses "Fiorilli" Case -------------------------------------------------- In the class action captioned as, In re Wachovia Corp."Pick-A- Payment" Mortgage Marketing And Sales Practices Litigation, No. 5:09-md-02015, the plaintiffs attacked the defendants' "Pick-A- Payment" mortgage loans, which allowed borrowers to choose a minimum payment for their loan and to make those payments for a limited amount of time and subject to specific terms. Ultimately, the parties to the Class Action entered into a written class action settlement agreement (MDL-SA). Carol A. Fiorilli alleges that she is a class member of the Class Action, such that she and Wells Fargo are subject to the MDL-SA. Ms. Fiorilli claims that Wells Fargo failed to follow the MDL-SA in (1) not staffing the help line adequately, (2) inconsistently assigning primary points of contact, (3) not issuing written notifications, and (4) denying her application without evidence that Defendant applied a "financial waterfall" analysis. In addition, Mr. Fiorilli asserted that Wells Fargo made false, deceptive, and/or misleading statements in phone conversations with her, such as requiring a $20,000 payment from her for the loan modification. On February 6, 2014, Ms. Fiorilli filed the lawsuit captioned CAROL A. FIORILLI, Plaintiff, v. WELLS FARGO BANK, N.A., Defendant, NO. C-14-CV-00557 (DMR), (N.D. Cal.), bringing two claims: (1) breach of the MDL-SA and (2) violation of the Fair Debt Collection Practices Act (FDCPA) 15 U.S.C. Section 1692e in the assessment of her loan modification application. Wells Fargo filed a motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). In an order dated August 7, 2014, a copy of which is available at http://is.gd/ILG1YTfrom Leagle.com, Magistrate Judge Donna M. Ryu granted Wells Fargo's motion and dismissed the case. Judge Ryu granted with prejudice, Defendant's motion to dismiss the plaintiff's breach of contract claim, and granted, with leave to amend, the Defendant's motion to dismiss the FDCPA claim. "At oral argument, Plaintiff proffered that she can amend the complaint to add factual support for her allegation that Wells Fargo is a "debt collector," as well as additional details regarding the conduct by Defendant that constitutes a violation of the FDCPA, and also falls outside the jurisdictional clause of the MDL-SA," said Judge Ryu. "Plaintiff may file an amended complaint to address the deficiencies in her FDCPA claim by no later than August 14, 2014." Carol A. Fiorilli, Plaintiff, represented by Andrew Vaughn Winchell -- andy@winchlaw.com -- Law Offices of Andy Winchell, P.C. Wells Fargo Bank, N.A., Defendant, represented by Leigh Otsuka Curran -- lcurran@afrct.com -- Anglin, Flewelling, Rasmussen, Campbell & Trytten LLP. WHOLE FOODS: Accused of Understating Sugar Amount in Greek Yogurt ----------------------------------------------------------------- Whole Foods Market understates the amount of sugar in its house brand Greek yogurt by 82 percent, a class action claims in the Philadelphia County Court of Common Pleas, according to Courthouse News Service. YELP INC: Robins Geller Files Class Action in California -------------------------------------------------------- Robbins Geller Rudman & Dowd LLP on Aug. 6 disclosed that a class action has been commenced in the United States District Court for the Northern District of California on behalf of purchasers of Yelp Inc. common stock during the period between October 29, 2013 and April 3, 2014. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from August 6, 2014. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel, Darren Robbins of Robbins Geller at 800-449-4900 or 619-231-1058, or via e-mail at djr@rgrdlaw.com If you are a member of this class, you can view a copy of the complaint as filed or join this class action online at http://www.rgrdlaw.com/cases/yelp/ Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. The complaint charges Yelp and certain of its officers and directors with violations of the Securities Exchange Act of 1934. Yelp is an online networking platform that connects people with local businesses. The Company generates revenue primarily from the sale of advertising on its website and mobile app to local businesses of all sizes that seek to reach its growing audience of consumers. The complaint alleges that during the Class Period, defendants made materially false and misleading statements concerning the Company's true business and financial condition, including but not limited to the true nature of the so-called "firsthand" experiences and reviews appearing on the Company's website, the robustness of its processes and algorithms purportedly designed to screen unreliable reviews, and the Company's forecasted financial growth prospects and the extent to which they were reliant upon undisclosed business practices, including but not limited to requiring business customers to pay to suppress negative reviews. Defendants' false and misleading statements during the Class Period caused the Company's stock to trade at artificially inflated prices, reaching a high of over $98.00 per share on March 4, 2014, and allowed Company insiders to sell more than 1.16 million shares of Yelp stock at prices as high as $98.99 per share for insider trading proceeds of more than $81.5 million. According to the complaint, as the true facts concerning the Company's business practices began to be revealed to the market through a series of articles and disclosures starting on March 31, 2014, the Company's stock price declined, falling from a close of $80.18 per share on April 1, 2014 to a close of $65.76 per share on April 4, 2014. Plaintiff seeks to recover damages on behalf of all purchasers of Yelp common stock during the Class Period. The plaintiff is represented by Robbins Geller, which has expertise in prosecuting investor class actions and extensive experience in actions involving financial fraud. With more than 200 lawyers in ten offices, Robbins Geller -- http://www.rgrdlaw.com-- represents U.S. and international institutional investors in contingency-based securities and corporate litigation. YELP INC: Faces Shareholder Class Action in California ------------------------------------------------------ Stewart Bishop, Juan Carlos Rodriguez, Lance Duroni and Pete Brush, writing for Law360, report that Yelp Inc. on Aug. 6 was hit with a shareholder class action lawsuit in California federal court by investors claiming the online business review platform kept its stock artificially inflated by making false claims about the authenticity of its "firsthand" reviewers. Named plaintiff Joseph Curry says that Yelp stock was inflated based on false claims that the "word of mouth" reviews of businesses posted on its website were written by people with firsthand information about the companies, and that its algorithmic software successfully screened out unreliable reviews. Following multiple press reports beginning in early 2014, the investors say it became clear that many reviews were fraudulent posts written by people without any direct experience with the subject businesses, and the San Francisco-based company allowed many such negative reviews to remain prominent while it tried to sell companies services designed to suppress these disparaging accounts. The Los Angeles Times on March 31 published an article describing a purported extortion scheme in which Yelp had threatened to run negative reviews more prominently if business owners didn't pay for advertising, according to the complaint. Days later the U.S. Federal Trade Commission disclosed that it had received more than 2,000 complaints about Yelp since 2008, often from businesses targeting the anonymity of the commenters or challenging an increase in negative reviews when they decided not to advertise on the site. Following these reports, Yelp's stock price dropped sharply, from a close of $80.18 per share on April 1 to $65.76 per share on April 4, the investors say. "Defendants made false and misleading statements about the strength of the company's business and prospects and engaged in a scheme to deceive the market," the complaint says. "This artificially inflated Yelp's stock price and operated as a fraud or deceit on class period purchasers of Yelp common stock." In addition to Yelp, the suit names Yelp Chairman and CEO Jeremy Stoppelman, Chief Financial Officer Robert J. Krolik and Chief Operating Officer Geoff Donaker, all of whom are accused of making millions of dollars by selling off company stock while it was inflated. Yelp said in a statement it hasn't been served with this lawsuit. "The allegations you describe are without merit and, assuming we are served, we will vigorously contest them," the company said. Many businesses themselves have been accused of cheating the system to attain more positive reviews. Through a method known as astroturfing, business can illegally buy fake online praise. After a yearlong undercover investigation, New York Attorney General Eric T. Schneiderman in September said 19 companies such as Amherst, N.Y.-based Mainstreethost and New York City-based Webtools LLC agreed to pay $350,000 to settle allegations they took money from business owners to write fake glowing reviews. At the time, the attorney general's office noted that it had cooperated extensively with online consumer review giants including Yelp. In other recent legal action for Yelp, the Virginia Supreme Court is weighing whether to overturn a ruling forcing the site to unmask the seven unknown posters to Hadeed Carpet Cleaning Inc., which claims the reviewers weren't actually customers, thereby rendering the posts defamatory. In July, a California appeals court revived a restaurant owner's lawsuit alleging that Yelp's review filter, which supposedly removes reviews of questionable legitimacy from the main business page, doesn't work as advertised. Plaintiff James Demetriades, who operates restaurants in Mammoth Lakes, filed a complaint seeking an injunction under the state's Unfair Competition Law and False Advertising Law to prevent Yelp from making claims about the accuracy and efficacy of its filter. A trial judge tossed the suit, finding the Yelp's statements at issue were matters of public interest, but an appeals panel said a commercial speech exemption applies. The investors are represented by Shawn A. Williams, Darren J. Robbins and David C. Walton of Robbins Geller Rudman & Dowd LLP and Frank J. Johnson -- frankj@johnsonandweaver.com -- and Nathan Hamler -- nathanh@johnsonandweaver.com -- of Johnson & Weaver LLP. The case is Joseph Curry v. Yelp Inc. et al., case number 3:14-cv- 03547, in the U.S. District Court for the Northern District of California. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Ma. Cristina 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. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. 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