/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/140828.mbx C L A S S A C T I O N R E P O R T E R Thursday, August 28, 2014, Vol. 16, No. 171 Headlines 9032-1076 QUEBEC: Recalls Patisserie Cream Mille Feuilles ACROPOLIS LTD: Does Not Pay OT Properly, "Rodea" Suit Says ADVANCED MICRO: $5.4-Mil. Settlement Gets Final Approval ALIMENTS GENESIS: Recalls Genesis Food Organic Brown Flax ALLIED CONCRETE: Faces "Gonzalez" Suit Over Failure to Pay OT AT&T MOBILITY: Settles Wage-and-Hour Class Action for $5 Million AUTOMATIC DATA: Faces Class Action Over TotalPay Debit Card Fees BARRACO'S PIZZA: Faces "Salois" Suit Over Failure to Pay Overtime BEXCO ENTERPRISES: Recalls Franklin & Ben Mason Convertible Cribs BIRRIERIA OCOTLAN: Sued Over Failure to Pay Overtime Wages BLUE BIRD: Recalls 13 All American Non-School Buses BLUE BIRD: Recalls 44 All American School Buses BLUE CROSS: Accused of Cheating by Four SoCal Medical Centers BOEHRINGER INGELHEIM: Providio to Administer Pradaxa Settlement BUILDING MATERIALS: Sued in Ill. for Concealing Product Defects BUSINESS TO BUSINESS: Unsolicited Fax Class Action Can Proceed CAESARS ENTERTAINMENT: "Huddy" Suit Seeks to Recover Unpaid OT CARE SPECIALISTS: Sued in Ill. Over Failure to Pay Overtime Wages CLIC ROYAL: Recalls "Seven Spices" Due to Undeclared Sesame COMENITY LLC: Has Made Unsolicited Calls, "Lewis" Suit Claims CONTINENTAL GENERAL: Recalls Multiple Tire Models COURIER EXPRESS: Removed "Salzone" Suit to S.D. Florida DOLLARAMA: Recalls Child's Plastic Patio Chairs EZCORP INC: Glancy Binkow Files Securities Class Action in N.Y. FIRSTSOURCE ADVANTAGE: Violates FDCPA, New York Class Suit Says FISKARS CANADA: Recalls "Pink" Pigment Ink Cartridge (291C) FLORIDA TURNPIKE: Sued Over Breach of Fair Labor Standards Act FORD MOTOR: Recalls Escape & Focus Due to Wiring Splice Defects GAF BUILDING: Faces "Robertie" Suit for Concealing Product Defect GENERAL MOTORS: Podhurst Orseck Named to MDL Executive Committee GENWORTH FINANCIAL: Sued Over Misleading Financial Reports GOLDEN ARTIST: Recalls QoR Synthetic Ox Gall GOOGLE INC: Says Class Claims vs. AdSense a "Legal Jujitsu" GREAT-WEST LIFE: "Teets" ERISA Suit Moved From Cal. to Colorado HARRISON HOTEL: Fails to Pay Overtime Hours, "Huembes" Suit Says HONDA MOTOR: Recalls 50,000 Civic, Civic Hybrid, CSX & Fit Cars HURRICANE LOUNGE: Sued in Fla. Over Failure to Pay Overtime Wages IL GUSTO: "Saracho" Suit Seeks to Recover Unpaid Overtime Wages INTERLOGIX: Recalls Security System Smoke Detectors INTERNATIONAL AUTO: Faces Class Action Over Undelivered Vehicles INTERTEK: Recalls Heating Pad Due to Counterfeit Cert. Mark INTUITIVE SURGICAL: Judge Trims Claims in Securities Class Action KENT HERITAGE: Recalls Chicken Burgers Due to Undeclared Egg KOOMA INC: Sued Over Failure to Pay Overtime Pursuant to FLSA LES ALIMENTS: Recalls Shan Pickle Products LIFE TIME FITNESS: Faces "Chrispens" Suit Over Deduction of Wages LIONS GATE: Pomerantz Law Firm Files Class Action in New York LOUISIANA LIQUID: Fails to Pay Drivers Overtime, Action Claims LOWE'S HOME: Settles HR Managers' OT Class Action for $9.5 Million M&T BANK: "Schaefer" Suit Seeks to Recover Unpaid OT Compensation MAGANA ASSOCIATION: Florida Suit Seeks to Recover Unpaid OT Wages MARANATHA: Peanut Butter Products Recalled Due to Salmonella MAXIMUM TITLE: Has Made Unsolicited Calls, "Parker" Suit Claims MAZDA MOTOR: Faces Class Action Over Engine Design Defect MODERN FURNITURE: Faces "Aponte" Suit Over Failure to Pay OT NATIONAL COLLEGIATE: Has Appealed Injunction in "O'Bannon" Suit NEW YORK, NY: Denial of Bid to Dismiss Protesters Suit Affirmed OCWEN FINANCIAL: Sued Over Violation of Securities Exchange Act OEUF: Recalls Sparrow Cribs Due to Fall Hazard ONEWEST BANK: 9th Cir. Remanded "Doyle" Suit to C.D. California PACIFIC BELL: Removed "Lefevre" Class Suit to N.D. California PAN ASIA: Recalls Wang Korepab Seaweed Crackers PELLA CORPORATION: Sued Over Failure to Disclose Window Defects PFIZER INC: 300 Canadian Women to Join Premplus Class Action PIONEER CORPORATION: Accused of Wrongful Conduct Over ODD Price PIZZA HUT: Franchisees File Class Action Over Price War RAMA AUTOMOTIVE: "Shaw" Suit Seeks to Recover Unpaid OT Wages RELIANT CAPITAL: Accused of Violating Fair Debt Collection Act ROY POPE: Recalls Belleisle Farms Cole Slaw Due to Listeria SALEM BROTHERS: Recalls Kaak Crispy Baked Bread SOLARWORLD: Recalls Solar Systems With Copper Grounding Lugs SCOOP CAFE: Suit Seeks to Recover Unpaid Overtime Wages & Damages SCOTT SPORTS: Recalls Bicycles with SR Suntour Front Forks SON-KWAN GROCERY: Suit Seeks to Recover Unpaid Wages & Penalties STRICK CORP: Recalls Trailer Model Due to Rear Impact Guards SURVEY SAMPLING: Faces Suit Brought Under Telecommunications Act SUTTON PLACE: "Mourabity" Seeks to Recover Unpaid Overtime Wages TD AMERITRADE: Violated Promises and Took Kickbacks, Class Claims TD BANK: Class Seeks to Recover Unpaid Overtime Compensation TD BANK: Settles Store Managers' OT Class Action for $9.9 Million TREK BICYCLE: Recalls Bicycles with SR Suntour Front Forks TYSON FOODS: 10th Cir. Affirmed $4-Mil. Verdict and Counsel Fees UNITED STATES: Denied Due Process to Refugees, D.C. Suit Claims VISA INC: MDL Panel Agrees to Sever Claims in Data Breach Suit WALGREEN CO: Faces "Short" Suit Over Failure to Pay Overtime WEISS-ROHLIG: "Pereira" Suit Seeks to Recover Unpaid OT Wages YAHYA TRADING: "Rivas" Suit Seeks to Recover Unpaid OT Wages * Two Rulings Limit Scope of Stay on Discovery in Securities Suit ********* 9032-1076 QUEBEC: Recalls Patisserie Cream Mille Feuilles --------------------------------------------------------- Starting date: August 14, 2014 Type of communication: Recall Alert sub-type: Food Recall Warning (Allergen) Subcategory: Allergen - Milk, Allergen - Wheat Hazard classification: Class 2 Source of recall: Canadian Food Inspection Agency Recalling firm: 9032-1076 Quebec Inc. Distribution: National Extent of the product distribution: Retail CFIA reference number: 9161 Affected products: 300 g. Patisserie Les Fantaisies Cream Mille Feuilles ACROPOLIS LTD: Does Not Pay OT Properly, "Rodea" Suit Says ---------------------------------------------------------- Lucia Rodea and Ariadna Valenzuela, on behalf of themselves and all others similarly situated v. Acropolis, Ltd. d/b/a Best Western Medical Center Inn and Dinesh Patel, Case No. 2:14-cv- 00178 (N.D. Tex., August 19, 2014), is brought against the Defendants for their failure to pay and properly calculate overtime compensation as required by the Fair Labor Standards Act. Acropolis, Ltd. owns and operates a hotel located in Amarillo, Texas. The Plaintiff is represented by: Jeremi K. Young, Esq. Rachael Victoria Rustmann, Esq. THE YOUNG LAW FIRM 1001 S. Harrison, Suite 200 Amarillo, TX 79101 Telephone: (806) 331-1800 E-mail: jyoung@youngfirm.com rachael@youngfirm.com - and - Timothy D. Newsom, Esq. LOVELL LOVELL NEWSOM & ISERN Eagle Centre Bldg, 112 W 8th Ave, Suite 1000 Amarillo, TX 79101-2314 Telephone: (806) 373-1515 Facsimile: (806) 379-7176 E-mail: tim@lovell-law.net ADVANCED MICRO: $5.4-Mil. Settlement Gets Final Approval -------------------------------------------------------- Beth Winegarner and Ben James, writing for Law360, report that a California judge granted final approval on Aug. 22 to a $5.4 million deal between Advanced Micro Devices Inc. and a class of employees who said AMD violated state labor code by failing to pay them for sabbaticals they had earned but not yet used when they left their jobs. Santa Clara Superior Court Judge Peter Kirwan approved the settlement during a hearing on Aug. 22, putting the lid on lead plaintiff Eric Paton's long-running case that was revived by a California appeals court in 2011. Under the deal, plaintiffs' attorneys will receive $1.7 million and Paton will receive $10,000, according to the ruling. Judge Kirwan said in his ruling that all aspects of the deal appeared fair and reasonable, noting "the case has been vigorously litigated over the course of many years, with significant discovery, law and motion practice, and appellate work." Plaintiffs' attorney Chris Banys of Banys PC celebrated the resolution of the case. "This was a tough, seven-year battle, and we are very proud of the result we were able to achieve for these high-tech California workers," he told Law360 on Aug. 22. More than 1,800 potential class members received notice of the settlement, and none objected to the proposed deal, according to Judge Kirwan's ruling. Mr. Paton sued AMD in April of 2007. He worked at the computer graphics card maker from June 1997 to July 2005, working as a senior process development engineer for much of that time. When he left, he said AMD refused to cash out an eight-week sabbatical he had earned but hadn't taken, according to the ruling. Mr. Paton claimed that AMD's sabbatical program was really just extra vacation time, so AMD couldn't require him to forfeit it. Pursuant to AMD policy, salaried employees who worked for the company for seven years earned a fully paid eight-week sabbatical, but lost it if they didn't take advantage of it before their employment ended. Mr. Paton's complaint listed six "class-related" causes of action in addition to one independent claim. All the class claims depend on the first cause of action -- for nonpayment of wages under Section 227.3 -- and the assertion that the sabbatical is in fact vacation time that can't be forfeited. Mr. Paton's individual claim was for breach of contract. In 2008, the Santa Clara Superior Court certified a class of more than 1,400 AMD workers who were terminated after April 27, 2003, who didn't sign a release, and who weren't paid for unused sabbatical time. In 2009, the court later granted AMD summary adjudication on most of Paton's claims, which he appealed. In a published opinion in 2011, a three-judge appellate panel reversed a trial court decision that had granted AMD's bid for summary adjudication and found that the sabbatical program at issue offered a "true sabbatical" that wasn't subject to Section 227.3 of the California Labor Code, which says that a terminated worker must be paid for all vested vacation time. The plaintiffs are represented by Christopher Banys, Eric Sidebotham, Richard Lin and Jennifer Gilbert of Banys PC and by Edward M. Gergosian, Robert J. Gralewski Jr. of Gergosian & Gralewski. AMD is represented by Lynne Hermle -- lchermle@orrick.com -- and Julia Reichert -- jriechert@orrick.com -- of Orrick Herrington & Sutcliffe LLP. The case is Paton v. Advanced Micro Devices Inc., case number 107CV084838, in the Superior Court for the State of California, County of Santa Clara. ALIMENTS GENESIS: Recalls Genesis Food Organic Brown Flax --------------------------------------------------------- Starting date: August 8, 2014 Type of communication: Recall Alert sub-type: Notification Subcategory: Extraneous Material Hazard classification: Class 2 Source of recall: Canadian Food Inspection Agency Recalling firm: Aliments Genesis Distribution: British Columbia, Manitoba, New Brunswick, Ontario, Quebec Extent of the product distribution: Warehouse CFIA reference number: 9122 Affected products: 50 Pound Genesis Food Organic Brown Flax ALLIED CONCRETE: Faces "Gonzalez" Suit Over Failure to Pay OT ------------------------------------------------------------- Trinidad Gonzalez, individually and on behalf of others similarly situated v. Allied Concrete Industries Inc., Allied Concrete Structures, Inc., Americo Magalhaes and Manuel Magalhaes, Case No. 2:14-cv-04771 (E.D.N.Y., August 11, 2014), is brought against the Defendant for failure to pay proper overtime wages under the Fair Labor Standards Act. Allied Concrete Industries Inc. is a concrete work contractor in New York. The Plaintiff is represented by: Scott A. Wolinetz, Esq. SCOTT A. WOLINETZ, P.C. 233 Broadway, 18th Floor New York, NY 10279 Telephone: (212) 962-1133 Facsimile: (212) 962-1144 E-mail: swol@verizon.net AT&T MOBILITY: Settles Wage-and-Hour Class Action for $5 Million ---------------------------------------------------------------- Scott Flaherty, writing for Law360, reports that AT&T Mobility LLC has agreed to pay $5 million to resolve a putative class action brought by employees at the company's retail stores who alleged they were shortchanged on overtime and other wages, according to a filing on Aug. 21 in California federal court. Andrew Prizler, who sued AT&T on behalf of a putative class of employees in California, asked a judge to grant final approval to a settlement that would resolve wage and hour allegations leveled against the mobile phone company. Under the agreement, which secured preliminary court approval in March, AT&T would pay $5 million that would go toward costs, attorneys fees and payouts to more than 2,600 employees, according to the filing. "The settlement provides the class members with prompt relief, whereas continued litigation would both increase costs and drag the possibility of recovery into the distant future," the employees said in a memorandum arguing for final approval of the deal. "The certain and monetary benefits provided by the settlement warrant its final approval." The settlement, if approved, would put to rest a case first brought against AT&T in June 2012. The suit was initially filed in California state court, but later removed to federal court. In the case, Mr. Prizler alleged on behalf of a proposed class that AT&T violated the California Private Attorney General Act and other portions of the state's labor code on several fronts. Specifically, the suit alleged that AT&T failed to pay the full minimum and overtime wages owed to employees, and failed to pay wages owed to employees once their employment was terminated, according to court filings. Though Mr. Prizler at first sought to represent a class that would include workers for AT&T retail stores starting in 2008, the two sides later agreed to limit the case to claims starting in October 2010, the Aug. 21 settlement filing said. The two sides began settlement talks a few months after the suit was filed, first attending a mediation session in December 2012. After about six months of negotiations, the two sides reached a deal, and in December 2013 presented the settlement to the court for preliminary approval, which was granted in March. The $5 million AT&T agreed to pay includes $1.25 million that would go toward attorneys fees, a $10,000 award to Mr. Prizler for serving as the named plaintiff in the suit, and other costs. The remainder -- about $3.7 million -- would be distributed to participating class members if the agreement receives final approval, the Aug. 21 settlement filing said. The settlement class would include all AT&T retail sales consultants who worked for the company between Oct. 19, 2010, and Oct. 27, 2012. The class would be limited to those employees who worked overtime during any given week, and earned commissions as part of their pay that week, the settlement filing said. The Aug. 21 filing estimates that the approximately 2,600 employees participating in the settlement would receive an average payout about $1,400 under the terms of the agreement. AT&T is represented by Matthew C. Kane, Michael D. Mandel, Sabrina A. Beldner -- sbeldner@mcguirewoods.com -- and Christopher A. Killens -- ckillens@mcguirewoods.com -- of McGuireWoods LLP. The employees are represented by Matthew Righetti, John Glugoski and Michael Righetti of Righetti Glugoski PC. The case is Prizler v. AT&T Mobility Services Inc. et al., case number 2:12-cv-06016, in the U.S. District Court for the Central District of California. AUTOMATIC DATA: Faces Class Action Over TotalPay Debit Card Fees ---------------------------------------------------------------- Matt Fair, writing for Law360, reports that Payroll processing giant Automatic Data Processing Inc. was slapped with a putative class action in Pennsylvania federal court on Aug. 22 alleging that it deducted illegal fees from debit cards issued to its clients' employees in lieu of paychecks. The suit accuses New Jersey-based ADP of charging fees in violation of the Pennsylvania Wage Payment & Collection Law to workers who were issued so-called TotalPay cards by employers who had contracted with the company. "Employees who are paid waves via the ADP TotalPay card, including plaintiff and the class, are charged, among other things, an enrollment fee, account maintenance fees, automatic teller machine withdrawal fees, balance inquiry fees, point of sale purchase fees, and an account closure fee," the complaint said. "Deduction of these unavoidable fees results in employees, including plaintiff and the class, receiving less than the full amount of wages owed to them and constitutes an unauthorized deduction from wages in violation of the WPCL," it added. The suit was filed on behalf of Joshua Silfee, a former employee of ERG Staffing Service LLC. According to the complaint, ERG contracted with ADP to pay its employees with the Visa-branded TotalPay cards. While the cards would be loaded each pay period with the employee's net earnings, the complaint alleges that workers were faced with fees when they went to withdraw money or to make direct purchases with the card. The complaint claims that ADP could be named as a defendant in the suit due to its work as an agent of ERG responsible for crafting policy and making decisions on how wages would be distributed through the TotalPay system. The complaint says that while the WPCL and the state's Department of Labor & Industry outlined deductions that employers are authorized to take from their workers' paychecks and allowed workers to authorize other deductions deemed permissible by the state, there was no evidence that regulators had ever signed off on the type of fees included in the TotalPay cards. "On information and belief, the Pennsylvania Department of Labor & Industry has never evaluated and authorized ADP's TotalPay Card fee deduction as in conformity with the intent and purpose of the WPCL," the complaint said. "ADP's failure to pay the full amount of wages due, as required by Pennsylvania law, represents a violation of their unwritten agreement with plaintiff and the members of the proposed class." The complaint says that Mr. Silfee was unsure the exact amount that had been illegally deducted from his paychecks but that the figure would be determined during the course of discovery. Mr. Silfee is represented by Gary Lynch -- glynch@carlsonlynch.com -- of Carlson Lynch LTD. The case is Silfee v. Automatic Data Processing Inc., case number 2:14-cv-04908, in the U.S. District Court for the Eastern District of Pennsylvania. BARRACO'S PIZZA: Faces "Salois" Suit Over Failure to Pay Overtime ----------------------------------------------------------------- Lynn Salois, Joshua Chapan and Henry Kobiela, individually and on behalf of all others similarly situated v. Barraco's Pizza, Inc., Salvatore Barraco, Nicholas Barraco, Vincent Barraco, Sr., Francesca M. Barraco, Vito Barraco, Nick Baracco, Francesca P. Barraco, Vincent Barraco, Jr. and Daniela Barraco, Case No. 1:14- cv-06362 (N.D. Ill., August 18, 2014), is brought against the Defendant for failure to pay overtime wages under the Fair Labor Standards Act. The Defendants own and operate a pizzeria within the State of Illinois. The Plaintiff is represented by: James B. Zouras, Esq. Ryan F. Stephan, Esq. Andrew C. Ficzko, Esq. Teresa M. Becvar, Esq. STEPHAN ZOURAS, LLP 205 N. Michigan Ave., Suite 2560 Chicago, IL 60601 Telephone: (312) 233-1550 Facsimile: (312) 233-1560 E-mail: jzouras@stephanzouras.com rstephen@stephanzouras.com aficzko@stephanzouras.com tbecvar@stephanzouras.com BEXCO ENTERPRISES: Recalls Franklin & Ben Mason Convertible Cribs ----------------------------------------------------------------- Starting date: August 19, 2014 Posting date: August 19, 2014 Type of communication: Consumer Product Recall Subcategory: Children's Products Source of recall: Health Canada Issue: Fall Hazard Audience: General Public Identification number: RA-41057 Affected products: Franklin & Ben Mason 4-in-1 Convertible Cribs The recall includes Franklin & Ben Mason style 4-in-1 style cribs model number 5601 that were manufactured from January 2012 through August 2012. The model number and the date of manufacture are printed on a label on the inside of a side panel of the crib. Listed on the label as a "serial number," the following purchase order numbers are included in the recall: H004522, H004546, H004548 or H004777. The cribs have solid wood sideboards and wood rails on the front and back of the crib in varying heights and can convert to a daybed, toddler bed or full-sized bed. There is a storage drawer at the base of the crib with two metal knobs. The recalled cribs were sold in weathered grey and rustic brown, and measure 145 centimetres (57 inches) long by 84 centimetres (33 inches) wide by 130 centimetres (51 inches) high. The crib front can separate from the side panels and create a hazardous gap that can allow a child to fall out or become entrapped between the front and side panels. Franklin & Ben has received 14 reports in the United States of the front separating from the side panels of the crib. No reports of incidents have been received from Canada. Health Canada has not received any reports of consumer incidents or injuries related to the use of these products. For more information on crib safety, visit the Healthy Canadians cribs, cradles and bassinets page. Approximately 103 of the recalled cribs were sold in Canada and 1,000 in the United States. The recalled cribs were manufactured in Taiwan and sold from Jan. 2012 to June 2014 in Canada and the United States at various retailers. Companies: Distributor Bexco Enterprises, Inc. Montebello California United States Consumers should immediately stop using the recalled cribs and contact Franklin & Ben for a free repair kit. In the meantime, parents are urged to find an alternate, safe sleeping environment for the child. BIRRIERIA OCOTLAN: Sued Over Failure to Pay Overtime Wages ---------------------------------------------------------- Noe Acuna-Mederos, Elvia Susana Gomez-Zavala, individually and on behalf of other employees similarly situated v. Birrieria Ocotlan, Inc. dba Birrieria Reyes de Ocotlan, and Ramon Reyes, individually, Case No. 1:14-cv-06379 (N.D. Ill., August 18, 2014), is brought against the Defendant for failure to pay overtime wages for all hours worked in excess of 40 hours per week. Birrieria Ocotlan, Inc. owns and operates a restaurant within the State of Illinois. The Plaintiff is represented by: Valentin Tito Narvaez, Esq. CONSUMER LAW GROUP, LLC 6232 N. Pulaski, Suite 200 Chicago, IL 60646 Telephone: (877) 509-6422 Facsimile: (888) 270-8983 E-mail: consumerlawgroupllc@gmail.com BLUE BIRD: Recalls 13 All American Non-School Buses --------------------------------------------------- Type of communication: Recall Subcategory: Bus Notification type: Safety Mfr System: Fuel Supply Units affected: 13 Source of recall: Transport Canada Identification number: 2014351 TC ID number: 2014351 Manufacturer recall number: R14XCM-C On certain vehicles equipped with Cummins ISB and ISL engines, the fuel filter shell and nut plate could separate, causing a fuel leak and also causing the engine to stall. Stalling would result in a loss of motive power, increasing the risk of a crash resulting in injury and/or damage to property. Dealers will replace the fuel filter. Affected products: Maker Model Model year(s) affected ----- ----- ---------------------- BLUE BIRD ALL AMERICAN NON-SCHOOL BUS 2014, 2015 BLUE BIRD VISION NON-SCHOOL BUS 2014, 2015 BLUE BIRD: Recalls 44 All American School Buses ----------------------------------------------- Starting date: August 12, 2014 Type of communication: Recall Subcategory: School Bus Notification type: Safety Mfr System: Fuel Supply Units affected: 44 Source of recall: Transport Canada Identification number: 2014350 TC ID number: 2014350 Manufacturer recall number: R14XM-C On certain vehicles equipped with Cummins ISB and ISL engines, the fuel filter shell and nut plate could separate, causing a fuel leak and also causing the engine to stall. Stalling would result in a loss of motive power, increasing the risk of a crash resulting in injury and/or damage to property. Dealers will replace the fuel filter. Affected products: Maker Model Model year(s) affected ----- ----- ---------------------- BLUE BIRD ALL AMERICAN SCHOOL BUS 2014, 2015 BLUE BIRD VISION SCHOOL BUS 2014, 2015 BLUE CROSS: Accused of Cheating by Four SoCal Medical Centers ------------------------------------------------------------- Four Southern California medical centers sued Anthem Blue Cross on August 20, 2014, claiming the giant insurer refuses to pay for medical care it pre-authorized, and underpays "out-of-network" providers when it does pay, reports Courthouse News Service. Orthopedic Specialists of Southern California, Integrated Surgery Center Number 101, San Diego Advanced Orthopedic Center and Inland Valley Surgery Center sued Anthem Blue Cross Life and Health Insurance Co. dba Blue Cross of California, in Superior Court. "This complaint arises out of the failure of Blue Cross to pay orthopedic specialists in the amounts required by law to be paid for services rendered by orthopedic specialists; in the amounts promised to be paid by Blue Cross during conversations and interactions with orthopedic specialists; in the amounts required to be paid to orthopedic specialists as set forth in the applicable written agreements with Blue Cross' members and insureds; and in the amounts historically, ordinarily, customarily and routinely paid to out-of network providers such as orthopedic specialists for surgical care, treatments and procedures provided to numerous patients, all of whom were insureds, members, policyholders, certificate-holders or were otherwise covered for health, hospitalization and major medical insurance through policies or certificates of insurance issued and underwritten by defendant Blue Cross," the medical centers say in the 29-page lawsuit. Anthem Blue Cross has been sued repeatedly on similar charges. The medical centers claim that Blue Cross "pre-authorized" the medical procedures, which the medical centers' doctors performed, after which anthem Blue Cross stiffed them. "In recent years, Anthem's contracted rates for in-network providers have been so meager, one-sided and onerous, that many providers like orthopedic specialists have determined that they cannot afford to enter into in-network contracts with Blue Cross," the complaint states. "As a result, a growing number of medical providers have become non-contracted or out-of-network providers, refusing to contract with Blue Cross. "For non-contracted, out-of-plan, or out-of-network providers, Blue Cross has unlawfully underpaid these providers for the medically necessary and appropriate services they have rendered to insureds of Blue Cross. Blue Cross has used flawed databases and systems to unilaterally determine what amounts it pays to medical providers and has colluded with other insurers to artificially underpay, decrease, limit and minimize the reimbursement rates paid for services rendered by non-contracted providers. This issue has been investigated by the U.S. Congress and New York Attorney General and has been the source of numerous lawsuits and class action suits filed in connection with the databases utilized by Blue Cross." The medical centers claim that "Among other flaws, Blue Cross: "a. Does not determine the numbers or types of providers in any geographic area; "b. Does not determine the actual types of procedures performed within a geographic area; "c. Collects charge data which is not representative of the actual number of procedures performed within a geographic area; "d. Does not collect sufficient data to enable its users to determine whether the data reflects the charges of providers with any particular degree of expertise or specialization; "e. Does not collect sufficient provider-specific data to enable its users to determine whether the charges are from one provider, from several providers, or from only a minority subset of the providers in a geographic area; "f. Fails to compare providers of the same or similar training and experience level and, instead, combines and averages all provider charges by procedure code without separating the charges of physicians and non-physicians; "g. Does not collect patient-specific information such as age or medical history or condition; "h. Does not ascertain the most common charge for the same service or comparable service or supply; "i. Does not determine the place of service or type of facility rendering services; "j. Does not collect sufficient data to enable it or its users to determine an appropriate medical market for comparing like charges; "k. Combines ZIP codes inappropriately, and uses ZIP code prefixes instead of appropriate medical markets; "l. Fails to compare procedures that use the same or similar resources (and other costs) to the provider, but rather, indiscriminately combines all provider charges by procedure code without regard to such factors; "m. Fails to compare procedures of the same or similar complexity by, among other things, failing to record of account for CPT code modifiers; "n. Does not use an appropriate statistical methodology; "o. Does not properly consider charging protocols and billing practices generally accepted by the medical community or specialty groups; "p. Does not properly consider medical costs in setting geographic areas; "q. Lacks quality control, such as basic auditing, to ensure the validity, completeness, representativeness, and authenticity of the data submitted; "r. Is subject to pre-editing by data contributors; "s. Reports charges that are systematically skewed downward; "t. Uses relative values and conversion factors to derive inappropriate usual, customary and reasonable amounts; "u. Uses a methodology that does not comply with Blue Cross' contractual definition of usual, customary and reasonable; "v. Calculates rates based upon Medicare and/or MediCal payments and/or computes rates based upon amount paid to preferred providers; and "w. Purports to be confidential and/or proprietary, which prevents access too, and scrutiny of, the data by members or their employers. "These and other flaws render defendants' use of its data system invalid and unlawful for determining usual, customary and reasonable rates. By systematically and typically making usual, customary and reasonable rate determination without compliant and valid data to substantiate its determinations, defendants have breached their obligation to reimburse orthopedic specialists for out-of-network services. Accordingly, all past usual, customary and reasonable rate determinations based on Blue Cross' data system should be overturned." The plaintiffs seek payment for services rendered and damages for breach of implied contract, breach of oral contract, legal violations, negligence and other charges. The Plaintiffs are represented by: Gary L. Tysch, Esq. LAW OFFICES GARY L. TYSCH 16133 Ventura Blvd. Encino, CA 91436 Telephone: (818) 995-9555 BOEHRINGER INGELHEIM: Providio to Administer Pradaxa Settlement --------------------------------------------------------------- Amaris Elliott-Engel, writing for The National Law Journal, reports that Providio MediSolutions LLC has been appointed to administer the $650 million settlement fund Boehringer Ingelheim GmbH agreed to over its blood-thinner Pradaxa. U.S. Chief District Judge David R. Herndon ordered $561 million of the settlement funds be segregated for the first phase of payments, and $50 million be segregated as the second phase supplemental payments. The presiding judge also ordered that $26 million be set aside to pay legal fees and $13 million for costs related to the work undertaken for the common benefit of the entire multidistrict litigation. Pradaxa is alleged to have caused bleed-out deaths among patients. In January, the U.S. Court of Appeals for the Seventh Circuit upheld an almost $1 million sanction Herndon issued because he found Boehringer's litigation hold was grossly inadequate. The total monetary sanction was $931,500. But the Seventh Circuit ruled that the drugmaker should not have been ordered to produce German-based employees for depositions in the United States as a discovery sanction. In February, Judge Herndon expressed further dismay with Boehringer's problems in abiding by discovery rules. Despite being ordered to produce some files by Feb.14, "defendants in the course of trying to download 6 TB (2,000,000 files) of data have found themselves having to purchase hard drives located some six hours from the headquarters," Judge Herndon said in a recent order. As of July 15, there were 2,481 Pradaxa lawsuits pending in the federal multidistrict litigation, according to court statistics. BUILDING MATERIALS: Sued in Ill. for Concealing Product Defects --------------------------------------------------------------- Jeff Ernst, individually and on behalf of all others similarly situated v. Corporation of America d/b/a/ GAF Materials Corporation, Case No. 3:14-cv-50182 (N.D. Ill., August 19, 2014), alleges that the Defendants conceals that the 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. Building Materials Corporation of America is a manufacturer of residential exterior building products in North America. The Plaintiff is represented by: Michael W. Duffy, Esq. Edward Eshoo Jr., Esq. CHILDRESS DUFFY, LTD. 500 North Dearborn Street, Suite 1200 Chicago, IL 60654 Telephone: (312) 494-0200 Facsimile: (312) 494-0202 E-mail: mduffy@childresslawyers.com eeshoo@childresslawyers.com BUSINESS TO BUSINESS: Unsolicited Fax Class Action Can Proceed -------------------------------------------------------------- Eric Convey, writing for Boston Business Journal, reports that the state Appeals Court ruled on Aug. 22 that plaintiffs suing a company that sent thousands of unsolicited faxes to Massachusetts recipients in 2006 can proceed with their case as a class action suit. Federal law entitles each recipient of an unsolicited fax to $500 in damages. Plaintiffs found 2,325 alleged violations by Business to Business Solutions of New York and wanted to bring their claims as a class. The faxes advertised a Super Bowl party at sea being put on by a Florida company called Around the World Travel Inc. A lower court judge found that the individuals and businesses suing the fax-marking company had met most of the requirements to bring a class action suit, but had failed to demonstrate that the matter was handled more appropriately as a class-action case than in small claims court. Specifically, the judge found that the size of a class action case award against the fax company would be excessive. "Violations would range from a minimum of over $1.1 million to over $3.4 million," the Appeals Court justices wrote. Despite the number, the Appeals Court found against Business to Business and ordered that the lower court certify the class. CAESARS ENTERTAINMENT: "Huddy" Suit Seeks to Recover Unpaid OT -------------------------------------------------------------- Phillip Huddy and Kenneth Klems, Individually and on behalf of all others similarly situated v. Caesars Entertainment Corp., a Delaware Corporation and Rock Ohio Caesars Cincinnati, LLC d/b/a Horsehoe Casino Cincinnati, Case No. 1:14-cv-00666 (S.D. Ohio, August 19, 2014), seeks to recover unpaid overtime compensation, liquidated damages, unlawfully withheld wages, statutory penalties and damages. The Defendants are engaged in the business of legalized gambling and, in connection with such business, engaged in interstate commerce by drawing patrons from outside the State of Ohio, and by purchasing gambling equipment from outside the State of Ohio. The Plaintiff is represented by: Claire W. Bushorn, Esq. Clement Tsao, Esq. David Marvin Cook, Esq. COOK & LOGOTHETIS, LLC 22 West 9th Street Cincinnati, OH 45202 Telephone: (513) 287-6992 Facsimile: (513) 721-1178 E-mail: cbushorn@econjustice.com ctsao@econjustice.com dcook@econjustice.com - and - Daniel K. Touhy, Esq. TOUHY, TOUHY, BUEHLER & WILLIAMS 55 West Wacker Drive, Suite 1400 Chicago, IL 60601 Telephone: (312) 372-2209 Facsimile: (312) 456-3838 E-mail: dtouhy@touhylaw.com CARE SPECIALISTS: Sued in Ill. Over Failure to Pay Overtime Wages ----------------------------------------------------------------- Norma Bolender, on behalf of herself and all other similarly situated persons, known and unknown v. Care Specialists, Inc., Case No. 1:14-cv-06416 (N.D. Ill., August 19, 2014), is brought against the Defendant for failure to pay overtime wages under the Fair Labor Standards Act. Care Specialists, Inc. is an enterprise engaged in commerce or in the production of goods for commerce The Plaintiff is represented by: Maureen Ann Salas, Esq. Sarah Jean Arendt, Esq. Zachary Cole Flowerree, Esq. Douglas M. Werman, Esq. WERMAN SALAS P.C. 77 W. Washington, Suite 1402 Chicago, IL 60602 Telephone: (312) 419-1008 E-mail: msalas@flsalaw.com sarendt@flsalaw.com zflowerree@flsalaw.com dwerman@flsalaw.com CLIC ROYAL: Recalls "Seven Spices" Due to Undeclared Sesame ----------------------------------------------------------- Starting date: August 15, 2014 Type of communication: Recall Alert sub-type: Food Recall Warning (Allergen) Subcategory: Allergen - Sesame Seeds Hazard classification: Class 3 Source of recall: Canadian Food Inspection Agency Recalling firm: AGT Clic Foods Inc. Distribution: Ontario, Quebec Extent of the product distribution: Retail CFIA reference number: 9156 Affected products: 100 g. Clic Royal Seven Spices with 0 58504 41440 3 UPC COMENITY LLC: Has Made Unsolicited Calls, "Lewis" Suit Claims ------------------------------------------------------------- Charissa Lewis, on behalf of herself, and all others similarly situated v. Comenity, LLC and Comenity Bank, Case No. 3:14-cv- 01934 (S.D. Cal., August 19, 2014), alleges that the Defendants made an unsolicited telephone call to the Plaintiff's wireless telephone, for which the Plaintiff provided no consent to call, in attempt to collect an alleged debt owed. Comenity, LLC provides customer service, billing, and collection services in the area of credit card receivables. Comenity Bank is a creditor and subsidiary of Comenity, LLC and maintains it principal place of business in Columbus, Ohio. The Plaintiff is represented by: Ronald Marron, Esq. LAW OFFICE OF RONALD MARRON 651 Arroyo Drive San Diego, CA 92103 Telephone: (619) 696-9006 Facsimile: (619) 564-6665 E-mail: ron@consumersadvocates.com - and - Daniel G. Shay, Esq. DAN SHAY, LAW 409 Camino del Rio South, Suite 101B San Diego, CA 92108 Telephone: (619) 222-7429 Facsimile: (866) 431-3292 E-mail: DanielShay@TCPAFDCPA.com CONTINENTAL GENERAL: Recalls Multiple Tire Models ------------------------------------------------- Starting date: August 12, 2014 Type of communication: Recall Subcategory: Tire Notification type: Safety Mfr System: Tires Units affected: 0 Source of recall: Transport Canada Identification number: 2014347 TC ID number: 2014347 On some motorcycle tires, the tire tread and/or belts may separate from the tire carcass, which could lead to a rapid loss of air pressure. Tire failure could cause the driver to lose vehicle control, which may result in a crash causing injury and/or property damage. Dealers will replace affected tires. Affected products: Maker Model Model year(s) affected ----- ----- ---------------------- CONTINENTAL CONTIATTACK SM 120/70R17 2011, 2012, 2013, 2014 CONTINENTAL CONTISPORTATTACK 120/70ZR17 2008, 2009, 2010, 2011, 2012, 2013, 2014 CONTINENTAL CONTISPORTATTACK 2 120/70ZR17 2011, 2012, 2013, 2014 CONTINENTAL CONTIRACEATTACK 120/70R17 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014 CONTINENTAL CONTIROADATTACK 2 GTZ 120/70ZR17 2013, 2014 COURIER EXPRESS: Removed "Salzone" Suit to S.D. Florida ------------------------------------------------------- The class action lawsuit titled Salzone v. Courier Express/Orlando, Inc., Case No. CACE 14-013946, was removed from the 17th Judicial Circuit in 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-61919-UU to the proceeding. The lawsuit alleges violations of the Fair Labor Standards Act. The Plaintiff is represented by: Jason Saul Remer, Esq. REMER & GEORGES-PIERRE, PLLC Court House Tower, Suite 2200 44 West Flagler Street Miami, FL 33130 Telephone: (305) 416-5000 Facsimile: (305) 416-5005 E-mail: jremer@rgpattorneys.com The Defendant is represented by: Pedro Albert Blanco, Esq. LAW OFFICES OF PETER A. BLANCO, PA 7700 N. Kendall Drive, Suite 306 Miami, FL 33156 Telephone: (305) 271-6963 Facsimile: (305) 271-6966 E-mail: pab@pablawpa.com DOLLARAMA: Recalls Child's Plastic Patio Chairs ----------------------------------------------- Starting date: August 21, 2014 Posting date: August 21, 2014 Type of communication: Consumer Product Recall Subcategory: Children's Products Source of recall: Health Canada Issue: Fall Hazard Audience: General Public Identification number: RA-41181 Affected products: child's plastic patio chairs The recall involves child's plastic patio chairs in a variety of colours, model number 3006952. The model number appears on the product label on the back of the chair. The chair legs may collapse under the weight of the child, causing a fall and injuries. Tests performed by Dollarama indicate that these products do not comply with the requirements of the ASTM F 1838-98 Standard Performance Requirements for Child's Plastic Chairs for Outdoor Use. Two incident reports involving four chairs were reported to Health Canada and Dollarama. Approximately 967,660 chairs were sold in Canada. The recalled chairs were manufactured in China and sold from Feb. 2009 to June 2014 in Dollarama stores across Canada. Companies: Manufacturer Star Glory Ltd. Hong Kong China Distributor Dollarama L.P/S.E.C. Montreal Quebec Canada Consumers should immediately stop using the product and return it to the store to obtain a refund. You may contact Dollarama online by clicking on "Contact Us" or by calling 1-888-755-1006, extension 1000, at any time. EZCORP INC: Glancy Binkow Files Securities Class Action in N.Y. --------------------------------------------------------------- Glancy Binkow & Goldberg LLP, representing investors of EZCORP, Inc., on Aug. 22 disclosed that it has filed a class action lawsuit in the United States District Court for the Southern District of New York on behalf of a class comprising purchasers of the Company's securities between April 30, 2013 and July 18, 2014, inclusive. Please contact Casey Sadler or Lesley Portnoy at (310) 201-9150 or (888) 773-9224, or at shareholders@glancylaw.com to discuss this matter. If you inquire by email, please include your mailing address, telephone number and number of shares purchased. EZCORP offers customers multiple ways to access instant cash, including pawn loans and consumer loans in the United States, Mexico, Canada and the United Kingdom. The Company offers these products through four primary channels: in-store, online, at the worksite, and through a mobile platform. The Complaint alleges that defendants made false and/or misleading statements and/or failed to disclose that: (i) the implementation of certain strategic and growth initiatives was less successful than represented; (ii) certain of the Company's business units and investments were not performing as well as represented; and (iii) as a result of the above, the Company's statements about its business and operations were materially false and misleading at all relevant times. On July 18, 2014, MS Pawn Corporation, the voting shareholder of EZCORP's Class B voting common stock, announced the removal from EZCORP of Paul Rothamel as director, President and Chief Executive Officer, William Love as Chairman of the Board of Directors, and Joseph Beal as director. Following this news, shares of EZCORP declined more than 12 percent on July 21, 2014. If you are a member of the Class described above, you may move the Court no later than sixty (60) days from the date of this Notice, to serve as lead plaintiff, if you meet certain legal requirements. To be a member of the Class you need not take any action at this time; you may retain counsel of your choice or take no action and remain an absent member of the Class. If you wish to learn more about this action, or if you have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Casey Sadler, Esquire, or Lesley Portnoy, Esquire, of Glancy Binkow & Goldberg LLP, 1925 Century Park East, Suite 2100, Los Angeles, California 90067, at (310) 201-9150 or (888) 773-9224, by e-mail to shareholders@glancylaw.com or visit our website at http://www.glancylaw.com If you inquire by email, please include your mailing address, telephone number and number of shares purchased. FIRSTSOURCE ADVANTAGE: Violates FDCPA, New York Class Suit Says --------------------------------------------------------------- Eli Reifer, on behalf of himself and all other similarly situated consumers v. Firstsource Advantage, LLC, Case No. 1:14-cv-04991 (E.D.N.Y., August 21, 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 FISKARS CANADA: Recalls "Pink" Pigment Ink Cartridge (291C) ----------------------------------------------------------- Starting date: August 19, 2014 Posting date: August 19, 2014 Type of communication: Consumer Product Recall Subcategory: Chemicals Source of recall: Health Canada Issue: Labelling and Packaging Audience: General Public Identification number: RA-41095 Affected products: Fiskars Pigment Ink Cartridge - Pink (291C) The recall involves the Fiskars Pigment Ink Cartridge - Pink (291C) used in the Continuous Stamp Wheel products. Only the pink cartridge is affected and not the stamping wheel. This does not affect any of Fiskars other ink cartridge colours. The cartridge is labelled with FISKARS Pink / Rose on one side and cartridge insertion instructions (Snap in place and remove lid and Rotate towards wheel) with pictorials on the other side. The Fiskars Model number is 01-005697 and the UPC is 020335037908. The Walmart Item number is 30333538. Health Canada and Fiskars Canada have established that this chemical product is not packaged in a child-resistant container and is also missing hazard labelling. Under Canadian law, this product must be packaged and labelled appropriately as it is classified as both toxic and corrosive. The lack of child- resistant packaging and labelling could result in unintentional exposure to the product and lead to serious illnesses, injuries, or death. Neither Health Canada, nor Fiskars Canada have received any reports of incidents or injuries related to the use of this product. Approximately 1,500 of the recalled product were sold in Canada. The recalled product was manufactured in China and sold from May, 2012 to June, 2014 in Canada. Companies: Distributor Fiskars Canada Inc. Markham Ontario Canada Retailer Wal-Mart Canada Corp. Mississauga Canada Consumers should immediately stop using the recalled color ink cartridge and return it to Wal-Mart for exchange of a different Fiskars colour ink cartridge or reimbursement. FLORIDA TURNPIKE: Sued Over Breach of Fair Labor Standards Act -------------------------------------------------------------- Rainier Cortes, Felix Perez Jr., Ronald Alegria, Sergio Bello, Conrad Garcia, Paul Vreones, and all others similarly situated under 29 U.S.C. 216(B) v. Florida Turnpike Services LLC, Case No. 1:14-cv-23062 (S.D. Fla., August 19, 2014), is brought against the Defendant for violation of the Fair Labor Standards Act. Florida Turnpike Services LLC owns and operates a convenient store in Miami-Dade County, Florida. The Plaintiff is represented by: David L. Markel, Esq. THE MARKEL LAW FIRM 3191 Grand Ave., #1531 Miami, FL 33133 Telephone: (305) 458-1282 Facsimile: (800) 407-1718 E-mail: david.markel@markel-law.com FORD MOTOR: Recalls Escape & Focus Due to Wiring Splice Defects --------------------------------------------------------------- Starting date: August 12, 2014 Type of communication: Recall Subcategory: Car, SUV Notification type: Safety Mfr System: Electrical Units affected: 25,382 Source of recall: Transport Canada Identification number: 2014349 TC ID number: 2014349 Manufacturer recall number: 14S17 On certain vehicles, defective engine wiring harness splices could affect engine function, causing reduced engine power and/or hesitation, and also cause the engine to stall. Stalling would result in a loss of motive power, increasing the risk of a crash resulting in injury and/or damage to property. Dealers will replace affected wiring splices. Affected products: Maker Model Model year(s) affected ----- ----- ---------------------- FORD FOCUS 2013, 2014 FORD ESCAPE 2013 GAF BUILDING: Faces "Robertie" Suit for Concealing Product Defect ----------------------------------------------------------------- Frederick C. Robertie and Veronica B. Robertie, individually and on behalf of all others similarly situated v. GAF Building Materials Corp., Case No. 7:14-cv-00165 (E.D.N.C., August 13, 2014), alleges that the Defendant conceals that the 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 Corp. is a Delaware corporation that manufactures and sells Cross Timbers Decking, with its headquarters in Wayne, New Jersey. The Plaintiff is represented by: Scott C. Harris, Esq. Daniel K. Bryson, Esq, Matthew E. Lee, Esq. WHITFIELD, BRYSON & MASON, LLP 900 W. Morgan St. Raleigh, NC 27603 Telephone: (919) 600-5000 Facsimile: (919) 600-5035 E-mail: scott@wbmllp.com dan@wbmllp.com matt@wbmllp.com GENERAL MOTORS: Podhurst Orseck Named to MDL Executive Committee ---------------------------------------------------------------- John Pacenti, Daily Business Review, reports that attorney Peter Prieto, a partner at Podhurst Orseck in Miami, has been named to the executive committee in the multidistrict litigation involving General Motors Corp.'s ignition switches. Mr. Prieto is the only Florida attorney on the national committee. More than 50 attorneys across the nation applied, and 10 were chosen, including such prominent litigators as Davis Boies, chairman at Boies, Schiller & Flexner in New York. Pretrial issues in lawsuits over the ignition switch are being handled in the MDL by U.S. District Judge Jesse Furman in New York. "I'm honored to have been selected by Judge Furman to be a part of the plaintiffs' leadership team and will work hard to ensure that those who bought defective vehicles from GM are compensated appropriately," Mr. Prieto said. Mr. Prieto has been involved in other high-profile MDL cases, including bank overdraft, forced-place insurance and Chinese drywall litigation. The ignition switch lawsuits claim a defect caused the vehicle to shut off, disabling the steering, brakes and airbags. The owners claim the problem has decreased the values of their automobiles. Others have brought wrongful death claims. GENWORTH FINANCIAL: Sued Over Misleading Financial Reports ---------------------------------------------------------- Manuel Esguerra, individually and on behalf of all others similarly situated v. Genworth Financial, Inc., Thomas J. Mcinerney, and Martin P. Klein, Case No. 1:14-cv-06639 (S.D.N.Y., August 19, 2014), alleges that the Defendants made false and misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Genworth Financial, Inc. offers life insurance, long term care insurance services through financial intermediaries, advisors, independent distributors and sales specialists. The Plaintiff is represented by: Ira M. Press, Esq. KIRBY MCINERNEY LLP 825 Third Avenue, 16th Floor New York, NY 10022 Telephone: (212) 371-6600 Facsimile: (212) 751-2540 - and - Howard G. Smith, Esq. LAW OFFICES OF HOWARD G. SMITH 3070 Bristol Pike, Suite 112 Bensalem, PA 19020 Telephone: (215) 638-4847 Facsimile: (215) 638-4867 GOLDEN ARTIST: Recalls QoR Synthetic Ox Gall --------------------------------------------- Starting date: August 19, 2014 Posting date: August 19, 2014 Type of communication: Consumer Product Recall Subcategory: Chemicals Source of recall: Health Canada Issue: Chemical Hazard Audience: General Public Identification number: RA-41105 Affected products: QoR Synthetic Ox Gall watercolour paint medium The recall involves QoR Synthetic Ox Gall which is designed to be used with artists' watercolour paints in small amounts to improve the flow and wetting. QoR Synthetic Ox Gall is clear with low viscosity and packaged in a 59 ml clear glass jar with a dropper lid. Product code of 7001000-2 appears on the label. The recall is isolated to product with one of the following lot numbers found on the bottom of the jar: 365254, 366319, 366405 or 366626. The product contains an excess of the preservative MIT (methylisothiazolinone) which can cause skin rash or blistering. Neither Health Canada nor Golden Artist Colours have received any reports of consumer incidents or injuries related to the use of this product. Approximately 91 units were sold in Canada at fine art supply stores. Approximately 470 units were sold in the United States at fine art supply stores. The affected products were manufactured in the United States and sold from June 1 - July 21, 2014 in Canada and the United States. Companies: Manufacturer Golden Artist Colors, Inc. New Berlin New York United States Consumers should immediately stop using the recalled QoR Synthetic Ox Gall and return it to Golden Artist Colors, Inc. for replacement. For more information, consumers may contact Golden Artist Colors Customer Service at 1-800-959-6543 from 8:30 a.m. to 5:00 p.m. ET Monday through Friday or visit QoR's website. GOOGLE INC: Says Class Claims vs. AdSense a "Legal Jujitsu" ----------------------------------------------------------- Slamming a class action as "legal jujitsu," Google urged a federal judge to nix claims that it routinely cancels AdSense accounts to avoid paying revenues, reports Mike Heuer at Courthouse News Service. Google AdSense pays Web site owners and publishers a percentage of revenues from ads that appear while people are browsing their sites. When visitors view the ads or click on them, Google is supposed to pay the Web site owners a portion of revenues from those ads. Free Range Content claimed in a May 2014 federal complaint, however, that Google purposely runs the program in way that Web site owners are paid nothing. Hoping to represent a class, the company said Google intentionally closes AdSense accounts to deny full payment to Web site owners. Account terminations can cost Web site owners and publishers anywhere from a couple hundred dollars to tens of thousands of dollars each year in lost revenues, according to the complaint. In a motion to dismiss filed on August 20, 2014, Google said it had every right to close Free Range's AdSense account and that the company's complaint would "turn contract law on its head." "After enjoying the benefits of participating in the AdSense program for a year-and-a-half, plaintiff, by its own admission, breached several explicit terms of that contract," Google said through its attorney Jeffrey Gutkin with Cooley LLP. "Google then did exactly what it said it would do in the contract -- it: closed plaintiff's AdSense account, did not make a payment to plaintiff that, pursuant to numerous contract provisions, plaintiff had no right to receive, and refunded the withheld payment (along with Google's revenue share) to advertisers." (Parentheses in original.) Google urged U.S. District Judge Beth Freeman to throw out the lawsuit. "This attempt legal jujitsu, in which a breaching party brings a suit for breach against the party that followed their agreement to the letter, must fail as a matter of law," attorney Gutkin wrote. Judge Freeman will hear the motion on or after Dec. 11 in San Jose. The Plaintiff is represented by: Jeff D. Friedman, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 715 Hearst Ave., Suite 202 Berkeley, CA 94710 Telephone: (510) 725-3000 Facsimile: (510) 725-3001 E-mail: jefff@hbsslaw.com The Defendant is represented by: Michael G. Rhodes, Esq. Jeffrey M. Gutkin, Esq. Kyle C. Wong, Esq. COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111-5800 Telephone: (415) 693-2000 Facsimile: (415) 693-2222 E-mail: rhodesmg@cooley.com jgutkin@cooley.com kwong@cooley.com GREAT-WEST LIFE: "Teets" ERISA Suit Moved From Cal. to Colorado --------------------------------------------------------------- The class action lawsuit styled John Teets v. Great-West Life & Annuity Insurance Company, Case No. 14-cv-01360, was transferred from the U.S. District Court for the Eastern District of California to the U.S. District Court for the District of Colorado (Denver). The Colorado District Court Clerk assigned Case No. 1:14-cv-02330-BNB to the proceeding. In his lawsuit, Mr. Teets alleges that Great-West breached its fiduciary duties, and engaged in transactions prohibited under the Employee Retirement Income Security Act of 1974, by unilaterally setting its own compensation and by charging excessive fees incident to administering certain contracts. Great-West operates the Great-West Key Guaranteed Portfolio Fund. Retirement plans in which the Plaintiff and the proposed class are participants and beneficiaries invest in the Fund pursuant to a Guaranteed Investment Contract that governs the relationship between the plans and Great-West. The Contract enables Great-West to set its own compensation as a service provider to the plans. The Plaintiff alleges that Great-West has exercised its discretionary authority to retain large profits rather than crediting the participants and beneficiaries of the plans with appropriate returns. Great-West is an indirect wholly-owned subsidiary of Great-West Lifeco, Inc. Great-West is headquartered in Greenwood Village, Colorado. The Plaintiff is represented by: Todd F. Jackson, Esq. Nina Wasow, Esq. Julie Wilensky, Esq. LEWIS, FEINBERG, LEE, RENAKER & JACKSON P.C. 476 9th Street Oakland, CA 94607 Telephone: (510) 839-6824 Facsimile: (510) 839-7839 E-mail: tjackson@lewisfeinberg.com nwasow@lewisfeinberg.com jwilensky@lewisfeinberg.com - and - Garrett W. Wotkyns, Esq. Michael McKay, Esq. SCHNEIDER WALLACE COTTRELL KONECKY LLP 8501 N. Scottsdale Rd., Suite 270 Scottsdale, AZ 85253 Telephone: (480) 428-0145 Facsimile: (866) 505-8036 E-mail: gwotkyns@schneiderwallace.com mmckay@schneiderwallace.com - and - Todd Schneider, Esq. Mark Johnson, Esq. SCHNEIDER WALLACE COTTRELL KONECKY LLP 180 Montgomery Street, Ste. 2000 San Francisco, CA 94104 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 E-mail: tschneider@schneiderwallace.com mjohnson@schneiderwallace.com - and - Scot Bernstein, Esq. LAW OFFICES OF SCOT D. BERNSTEIN, A PROFESSIONAL CORP 101 Parkshore Drive, Suite 100 Folsom, CA 95630 Telephone: (916) 447-0100 Facsimile: (916) 933-5533 E-mail: swampadero@sbernsteinlaw.com HARRISON HOTEL: Fails to Pay Overtime Hours, "Huembes" Suit Says ---------------------------------------------------------------- Guillermo O. Huembes and all others similarly situated under 29 U.S.C. 216(b) v. Harrison Hotel, Inc. and Michael Kadosh, Case No. 1:14-cv-23060 (S.D. Fla., August 19, 2014), is brought against the Defendant for failure to pay overtime wages for work performed in excess of 40 hours weekly. The Defendants own and operate a hotel located in Miami-Dade County, Florida. The Plaintiff is represented by: Jamie H. Zidell, Esq. J.H. ZIDELL, PA 300 71st Street, Suite 605 Miami Beach, FL 33141 Telephone: (305) 865-6766 Facsimile: 865-7167 E-mail: ZABOGADO@AOL.COM HONDA MOTOR: Recalls 50,000 Civic, Civic Hybrid, CSX & Fit Cars --------------------------------------------------------------- Type of communication: Recall Subcategory: Car Notification type: Safety TC System: Steering Units affected: 50,000 Source of recall: Transport Canada Identification number: 2014345 TC ID number: 2014345 On certain vehicles, a fault in the Electric Power Steering (EPS) system could result in an immediate loss of power steering assist without warning to the driver. This would unexpectedly increase the steering effort force necessary to steer the vehicle at lower vehicle speeds, which could increase the risk of a crash causing injury and/or damage to property. Vehicles will receive a special extended warranty coverage of 10 years/240,000 km from first registration. Under this special coverage program, vehicles which experience this condition will have the electric power steering module replaced. Affected products: Maker Model Model Year(s) Affected ----- ----- ---------------------- HONDA CIVIC 2006, 2007, 2008, 2009 HONDA CIVIC HYBRID 2006, 2007 ACURA CSX 2009 HONDA FIT 2007, 2008 HURRICANE LOUNGE: Sued in Fla. Over Failure to Pay Overtime Wages ----------------------------------------------------------------- Roberto Robbins, on his own behalf and others similarly situated v. Hurricane Lounge, Inc. d/b/a Hurricane Seafood Restaurant, Case No. 8:14-cv-02019 (M.D. Fla., August 19, 2014), is brought against the Defendant for failure to pay minimum and overtime wages pursuant to Fair Labor Standards Act. Hurricane Lounge, Inc. engaged in food and beverage services business under the trade name Hurricane Seafood Restaurant. The Plaintiff is represented by: Christina Jean Thomas, Esq. Morgan & Morgan, PA 20 N Orange Ave-Ste 1600, PO Box 4979 Orlando, FL 32801 Telephone: (407) 420-1414 Facsimile: (407) 245-3401 E-mail: cthomas@forthepeople.com - and - William John Gadd, Esq. W. JOHN GADD, ATTORNEY AT LAW Suite 250, 2727 Ulmerton Rd Clearwater, FL 33762 Telephone: (727) 524-6300 Facsimile: (727) 524-6330 E-mail: wjg@mazgadd.com IL GUSTO: "Saracho" Suit Seeks to Recover Unpaid Overtime Wages --------------------------------------------------------------- Mario Saracho, and other similarly situated individuals v. IL Gusto Italiano, LLC, Italian Food Marketing, Inc. d/b/a Il Gusto Italian Cafe and Mauro Megna, individually, Case No. 0:14-cv-61863 (S.D. Fla., August 18, 2014), seeks to recover unpaid overtime and straight wages under the Fair Labor Standards Act. The Defendants own and operate Gusto Italian Cafe in Miami-Dade, Florida. The Plaintiff is represented by: Ruben Martin Saenz, Esq. SAENZ & ANDERSON, PLLC 20900 N.E. 30th Avenue, Suite 800 Aventura, FL 33180 Telephone: (305) 503-5131 Facsimile: (888) 270-5549 E-mail: msaenz@saenzanderson.com INTERLOGIX: Recalls Security System Smoke Detectors --------------------------------------------------- Starting date: August 13, 2014 Posting date: August 13, 2014 Type of communication: Consumer Product Recall Subcategory: Household Items, Electronics Source of recall: Health Canada Issue: Product Safety Audience: General Public Identification number: RA-41065 Affected products: ESL and Interlogix branded 400 and 500 series smoke detectors for professionally installed fire and security systems in commercial and residential buildings Product description The recall involves the 2-wire and 4-wire models of the 400 and 500 series ESL Interlogix smoke detectors with manufacturing date codes 13084 (March 25, 2013) to 14059 (February 28, 2014). The initials ESL, the date code and the model number are printed on the back of the detector's cover and on the product's packaging. The affected model numbers are: 400 Series: 429AT, 429C, 429CAD, 429CRT, 429CST, 429CT, 429CTAD, 449AT, 449C, 449CRT, 449CSRH, 449CSRT, 449CST, 449CSTE, 449CT and 449CTE. 500 Series: 511C, 518C, 521B, 521BXT, 521B-10PKDMP, 521B-10PKG, 521BXT-10PKG, 521BXT-DMP-10PKG, 528B, 528CRXT, 541C, 541C-10PKG, 541CXT, 541-CXT-10PK, 548C, C2M-PD, C2M-PD1, C2M-PDC, C2M-PDHC and C2M-PDHRC. Since the product is found as part of an integrated security system, the model numbers and date codes are unlikely to be accessible to consumers. If consumers have detectors that they believe may be subject to this recall notice, they should contact their security system provider to obtain more information about the detectors used in their system. Radio frequency interference can cause the smoke detectors to become non-responsive to smoke. Neither Health Canada, nor Interlogix nor Chubb Edwards has received any reports of consumer incidents or injuries with these products. There were about 13,000 products sold in Canada, and about 141,000 units sold in the United States. These products were manufactured in China and sold to professional fire and security contractors and installers from March 2013 to February 2014. Companies: Manufacturer Fyrnetics Ltd. China These products were sold through Chubb Edwards and by various other alarm system, security equipment and electrical equipment distributors, dealers and installers throughout Canada. Consumers should contact Interlogix, Chubb Edwards or their professional security system provider for information about the detectors in their system, and to replace affected smoke detectors free of charge. Consumers should not remove or disable the units themselves. INTERNATIONAL AUTO: Faces Class Action Over Undelivered Vehicles ---------------------------------------------------------------- Capt. John McQuilliams, Capt. Jason Smith, MSgt. Patrick McKimmie, Nancy Swenson, Capt. Michael Cleveland and Debra Gilbertson, Individually, and on behalf of others similarly situated v. International Auto Logistics, LLC, Case No. 2:14-cv-00124-LGW-JEG (S.D. Ga., August 21, 2014) asserts claim for breach of contract. The Plaintiffs are represented by: C. Dorian Britt, Esq. TATE LAW GROUP, LLC P.O. Box 9060 Savannah, GA 31412 Telephone: (912) 234-3030 Facsimile: (912) 234-9700 E-mail: dbritt@tatelawgroup.com - and - Nathan T. Williams, Esq. THE WILLIAMS LITIGATION GROUP P.O. 279 Brunswick, GA 31520 Telephone: (912) 264-0848 Facsimile: (912) 264-6299 E-mail: nathan@williamslg.com * * * Adam L. Mathis, writing for Stars and Stripes, reports that former and current Defense Department employees who have not seen their personal vehicles in more than two months have filed a class- action lawsuit against the government's vehicle shipping contractor. Williams Litigation Group and Tate Law Group filed the suit against International Auto Logistics on Aug. 21 in Georgia on behalf of Air Force Capt. Jason Smith, at Joint Base San Antonio; Air Force Master Sgt. Patrick McKimmie, Fort Sam Houston, Texas; Nancy Swenson, recently retired from the Defense Department; Army Capt. Michael Cleveland; and Debra Gilbertson. The six claim that International took possession of their vehicles between June 1 and June 12 for shipping, but has failed to deliver them and has not provided accurate information about the vehicles' whereabouts, according to the complaint filed with the court and given to Stars and Stripes by one of their attorneys, Nathan T. Williams. If the court certifies that these six represent a group and they win their case, the award would go to anyone who fit the criteria for remuneration, Williams said. The damages are estimated at more than $5 million. Smith, one of the litigants, declined to be interviewed pending approval from his superior, but he posted on Facebook that he was participating in the lawsuit because International did not respond to his reimbursement claim and because he wants to hold the company accountable. The lawsuit was filed on the same day information was posted online indicating International was not meeting the 98 percent on-time delivery rate required in the government contract. A Facebook user posted an email from U.S. Army Command Sgt. Maj. James K. Sims, with U.S. Army Materiel Command, that said International, as of Aug. 19, had processed "27,358 vehicles: 14,154 vehicles are currently in transit with approximately 70 percent late in meeting the required delivery date." A spokesman for Sims confirmed the email was authentic. International assumed responsibility in May for the more than $957.5 million contract to ship Defense Department employees' personally owned vehicles when they change duty stations. U.S. Surface Deployment and Distribution Command, which oversees vehicle shipping, estimates that 68,000 vehicles are shipped each year. The Defense Department has received hundreds of complaints about International, and more than 3,000 people have joined "International Auto Logistics: Reviews, Complaints, and Inconveniences," a Facebook group. Many of the stories posted to the group's page complain of vehicles delivered late and inaccurate location information. "We shipped our vehicle on May 15 from Graf to Baltimore," one person posted on Aug. 15, referring to Grafenwoehr, Germany. She was told her vehicle "was in Norfolk, then Savannah. But the truth is, we have no idea where our car is and it has been 90 days since we sent it to sail on the boat to nowhere." Earlier this month, DOD officials investigated the situation and found that International was not properly documenting the transfer of vehicles from trucks to container ships. A spokesman for U.S. Transportation Command said he had not seen the lawsuit and did not immediately respond to a request for comment. Amanda Nunez, a spokeswoman for International, and a spokesman for U.S. Transportation Command did not immediately respond to a request for comment on the lawsuit. INTERTEK: Recalls Heating Pad Due to Counterfeit Cert. Mark ----------------------------------------------------------- Posting date: August 22, 2014 Type of communication: Consumer Product Recall Subcategory: Tools and Electrical Products Source of recall: Health Canada Issue: Product Safety Audience: General Public Identification number: RA-41183 Affected products: Heating pad The recall involves a heating pad manufactured by Ningbo Jinchun Electric Appliances Co. Ltd. identified by model F1494. The heating pad was manufactured in China has a counterfeit cETLus Certification Mark and has not been evaluated by Intertek. It is unknown if this product is in compliance with the applicable safety standard. Health Canada has not received any reports of consumer incidents or injuries related to the use of this product. The number of units sold is unknown but it was sold at CVS stores in the United States and other retail and secondary market outlets. Companies: Manufacturer Ningbo Jinchun Electric Appliance Co. Ltd. China Consumers should immediately stop using the recalled heating pads and dispose of them following municipal waste guidelines. INTUITIVE SURGICAL: Judge Trims Claims in Securities Class Action ----------------------------------------------------------------- Kurt Orzeck, writing for Law360, reports that a California federal judge on Aug. 21 trimmed claims alleging Intuitive Surgical Inc. made false financial reports amid a defect in its robotic surgical equipment, ruling such forward-looking statements are typically included in securities filings while preserving other claims alleging securities fraud. In an order partially granting Intuitive Surgical's motion to dismiss, U.S. District Judge Edward J. Davila said the State of Hawaii Employees' Retirement System failed to claim why statements in the company's accounting reports were inaccurate or actionable. The plaintiff claimed that the reports were misleading because Intuitive Surgical didn't disclose information that may have warned investors about the defect, which allegedly caused patients undergoing surgery to be electrocuted and spurred company stock to tumble. But Judge Davila found that the defendant's accounting reports hadn't provided inaccurate data over the company's financial performance. "In essence plaintiff argues that these historical statements are misleading because they do not account for or otherwise disclaim the potential forward-looking implications presented by the MDRs and product liability lawsuits," the Aug. 21 order said. "But because defendants' statements are literally true backward-looking financial reports, the type of which are typically included in SEC filings." The da Vinci line of robotic surgical systems for minimally invasive surgeries features monopolar scissors used to cut normally and to cauterize tissue through the application of monopolar electricity via an electrode, according to court papers. The defective devices were prone to tiny cracks, allowing electricity to enter into the patient's body and thus damaging tissue and internal organs, court filings said. The plaintiff alleged that Intuitive found out about the defect through medical device reports that it had received from hospitals treating injured patients. The company allegedly responded by issuing secret recalls, unbeknownst to the U.S. Food and Drug Administration, and misclassified or failed to file the MDRs. After the FDA allegedly met with Intuitive to discuss the misclassified or unfiled MDRs, the company reported a 40 percent higher number of MDRs, resulting in an FDA safety probe in January 2013 that caused company stock to drop 11 percent on Feb. 28, 2013, and 3 percent on Mar. 4 of that year. The plaintiff alleged that Intuitive didn't properly file the MDRs to investors, misleading them into believing the company's forecast was strong despite the da Vinci defect. While Judge Davila on Aug. 21 tossed some claims in the securities class action, he said the plaintiff had sufficiently alleged that statements the company made over the safety and efficacy of the surgical equipment -- while it was allegedly suppressing the MDRs -- were misleading. "Taking Plaintiff's contentions as true, the court concludes that it is plausible that the reasonable investor would find the existence of these numerous unreported MDRs to significantly alter the total mix of information available and that defendants' statements created an impression of da Vinci's safety that materially differed from reality," the judge held. Judge Davila dismissed the plaintiff claims with leave to amend to the extent that they are premised on statements made by Intuitive over financial data, risk factors disclosures and FDA compliance procedures. Serena P. Hallowell -- shallowell@labaton.com -- of Labaton Sucharow LLP, which is representing Employees' Retirement System of the State of Hawaii, told Law360 on Aug. 22, "On behalf of the class, we are pleased with the result and look forward to proceeding quickly to discovery and trial." The State of Hawaii Employees' Retirement System is represented by Eric J. Belfi -- ebelfi@labaton.com -- Jonathan M. Plasse and Serena P. Hallowell of Labaton Sucharow LLP and liaison counsel Arthur C. Leahy -- artl@rgrdlaw.com -- Danielle S. Myers, Susannah Conn and Shawn A. Williams -- shawnw@rgrdlaw.com -- of Robbins Geller Rudman & Dowd LLP. Intuitive is represented by Michael D. Celio -- mcelio@kvn.com -- Jo W. Golub and Cody S. Harris -- charris@kvn.com -- of Keker & Van Nest LLP. The case is In re: Intuitive Surgical Securities Litigation, case number 5:13-cv-01920, in the U.S. District Court for the Northern District of California, San Jose Division. KENT HERITAGE: Recalls Chicken Burgers Due to Undeclared Egg ------------------------------------------------------------ Starting date: August 15, 2014 Type of communication: Recall Alert sub-type: Food Recall Warning (Allergen) Subcategory: Allergen - Egg Hazard classification: Class 2 Source of recall: Canadian Food Inspection Agency Recalling firm: Kent Heritage Farms Distribution: Ontario Extent of the product distribution: Consumer CFIA reference number: 9157 Affected products: 2.27 kg. chicken burgers with all codes where egg is not declared on the label. KOOMA INC: Sued Over Failure to Pay Overtime Pursuant to FLSA ------------------------------------------------------------- Shannon Mackereth, Jonathan Young, and Alyssa Wetzel, on behalf of themselves and all others similarly situated v. Kooma, Inc. d/b/a Kooma, Kooma Viet Inc., Kooma Riverfront, Kooma II, LLC; Scott Kim, Jang Moon, Yung H. Kwun, Jin Y. Kim; and Doe Defendants 1-10, Case No. 2:14-cv-04824 (E.D. Pa., August 18, 2014), seeks to recover unpaid overtime wages, pursuant to the Fair Labor Standards Act. The Defendants own and operate a restaurant under the trade name Kooma. The Plaintiff is represented by: Arkady Eric Rayz, Esq. Demetri A. Braynin, Esq. KALIKHMAN & RAYZ LLC 1051 County Line Road, Suite A Huntingdon Valley, PA 19006 Telephone: (215) 364-5030 Facsimile: (215) 364-5029 E-mail: erayz@kalraylaw.com dbraynin@kalraylaw.com - and - Gerald D. Wells III, Esq. Robert J. Gray, Esq. CONNOLLY WELLS & GRAY, LLP 2200 Renaissance Blvd., Suite 308 King of Prussia, PA 19406 Telephone: (610) 822-3700 Facsimile: (610) 822-3800 Email: gwells@cwg-law.com rgray@cwg-law.com LES ALIMENTS: Recalls Shan Pickle Products ------------------------------------------ Starting date: August 15, 2014 Type of communication: Recall Alert sub-type: Food Recall Warning (Allergen) Subcategory: Allergen - Mustard Hazard classification: Class 3 Source of recall: Canadian Food Inspection Agency Recalling firm: Les Aliments Nutrifresh Ltee Distribution: Manitoba, New Brunswick, Nova Scotia, Ontario, Quebec, Saskatchewan Extent of the product distribution: Retail CFIA reference number: 9160 LIFE TIME FITNESS: Faces "Chrispens" Suit Over Deduction of Wages ----------------------------------------------------------------- John Chrispens, Gregory Gentile, and Mai Henry individually, and on behalf of all others similarly situated v. Life Time Fitness, Inc., a Minnesota corporation, LFT Club Management Company, LLC, a Delaware Limited Liability Company, Does 1 through 10, inclusive, Case No. 8:14-cv-01280 (C.D. Cal., August 12, 2014), is brought against the Defendant for unlawful deduction of wages, nonpayment of minimum and overtime wages, non provision of meal and rest breaks and forfeiture of vacation wages. The Defendants own and operate 106 fitness centers throughout the United States. The Plaintiff is represented by: Branigan Robertson, Esq. BRANIGAN ROBERTSON LLP 9891 Irvine Center Drive Suite 200 Irvine, CA 92618 Telephone: (949) 667-3025 Facsimile: (949) 242-9853 E-mail: branigan@brobertsonlaw.com - and - Brian D. Chase, Esq. Jerusalem F Beligan, Esq. BISNAR CHASE LLP 1301 Dove Street Suite 120 Newport Beach, CA 92660 Telephone: (949) 752-2999 Facsimile: (949) 752-2777 E-mail: bchase@bisnarchase.com jbeligan@bisnarchase.com LIONS GATE: Pomerantz Law Firm Files Class Action in New York ------------------------------------------------------------- Pomerantz LLP on Aug. 22 disclosed that it has filed a class action lawsuit against Lions Gate Entertainment Corp. and certain of its officers. The class action, filed in United States District Court, Southern District of New York, and docketed under 14-cv-5477, is on behalf of a class consisting of all persons or entities who purchased Lions Gate securities between February 11, 2013 and March 13, 2014, inclusive. This class action seeks to recover damages against Defendants for alleged violations of the federal securities laws under the Securities Act of 1933 and the Securities Exchange Act of 1934. If you are a shareholder who purchased Lions Gate securities during the Class Period, you have until September 9, 2014 to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at www.pomerantzlaw.com To discuss this action, contact Robert S. Willoughby at rswilloughby@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll free, x237. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and number of shares purchased. Lions Gate, an entertainment company, is engaged in motion picture production and distribution, television programming and syndication, home entertainment, family entertainment, digital distribution, new channel platforms, and international distribution and sales activities. The Complaint alleges that by the start of the Class Period, Lions Gate was under investigation by the U.S. Securities and Exchange Commission for making false and misleading statements and omissions concerning a series of transactions designed to prevent a takeover of the Company by Carl Icahn and his affiliates. During the Class Period, however, Lions Gate and the other defendants misrepresented and/or failed to disclose the existence of the SEC investigation, the prospect of legal proceedings associated with the misconduct under investigation, and the Company's exposure to loss in connection therewith. In March 2010, Carl Icahn commenced a series of tender offers intended to facilitate his takeover of the Company by increasing his ownership interest in Lions Gate and allowing him to designate his chosen representatives to the Company's Board of Directors. Threatened by the possibility of losing control of the Company or being replaced, Lions Gate's management and the Board sought to block Icahn's plans. On July 20, 2010, the Board -- with management's assistance -- approved and facilitated the Transactions, which resulted in placing over 16 million shares of common stock in the hands of director Mark Rachesky and/or entities he controlled while diluting the interests of other Lions Gate shareholders, including Icahn. Mr. Rachesky was a staunch supporter of Lions Gate management and the Board. Thereafter, Lions Gate publicly represented that the Transactions were "a key part of the Company's previously announced plan to reduce its total debt, as well as its nearer term maturities." In fact, the SEC found, Lions Gate had not announced any such debt- reduction plan. Moreover, Lions Gate failed to adequately disclose the true purpose of the Transactions: to stifle Icahn's takeover attempts. Following the public announcement of the Transactions, Lions Gate continued to misrepresent their true purpose to investors. On March 13, 2014, the SEC issued an Order Instituting Cease-and- Desist Proceedings Pursuant to Section 21C of the Securities Exchange Act of 1934, Making Findings, and Imposing a Cease-and- Desist Order, which memorialized the resolution of the investigation and charges against Lions Gate for making false and misleading disclosures regarding the Transactions. As detailed in the Order, Lions Gate settled the investigation by, among other things, agreeing to pay $7.5 million in fines and acknowledging that it had violated the federal securities laws. With offices in New York, Chicago, Florida, and San Diego, The Pomerantz Firm -- http://www.pomerantzlaw.com-- concentrates its practice in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, the Pomerantz Firm pioneered the field of securities class actions. Today, more than 70 years later, the Pomerantz Firm continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. The Firm has recovered numerous multimillion-dollar damages awards on behalf of class members. LOUISIANA LIQUID: Fails to Pay Drivers Overtime, Action Claims -------------------------------------------------------------- Juan Jaime Rodriguez, Armando Arellano, Jose Juan Arredondo, et al., on behalf of themselves and all others similarly situated v. Louisiana Liquid Services, LLC and Louisiana Crane & Construction, LLC, Case No. 5:14-cv-00739 (W.D. Tex., August 19, 2014), alleges that the Defendants did not pay their liquid disposal truck drivers proper overtime wages as required by the Fair Labor Standards Act. Louisiana Liquid Services, LLC and Louisiana Crane & Construction, LLC provide industrial construction and oilfield maintenance services in Texas. The Plaintiff is represented by: Michael M. Guerra, Esq. Michael K. Burke, Esq. LAW OFFICES OF MICHAEL M. GUERRA 3900 N. 10th St., Suite 850 McAllen, TX 78501 Telephone: (956) 682-5999 Facsimile: (888) 317-8802 E-mail: mike@mmguerra.com mburke@mmguerra.com LOWE'S HOME: Settles HR Managers' OT Class Action for $9.5 Million ------------------------------------------------------------------ Michael Lipkin, Kurt Orzeck and Abigail Rubenstein, writing for Law360, report that Lowe's Home Centers Inc. on Aug. 22 agreed to pay $9.5 million to end human resources managers' class action allegations that they were not actually managers and that Lowe's misclassified them as exempt from overtime pay requirements, according to documents filed in Florida federal court. In their motion seeking preliminary approval of the settlement, the plaintiffs said they expected Lowe's to argue they were properly classified because the HR managers interviewed potential hires, along with 20 other job roles. "The jury would have been presented with a very complex case where some employees apparently worked contrary to standard procedures, and will claim to have spent substantial amount of their work hours involved with many routine and repetitive, typical nonexempt job duties, while spending unknown percentages of time engaged in the alleged primary job duties," the motion said. The settlement fund includes up to $3.2 million in legal fees, with class members dividing the remaining fund amount between them. The method for the proportional allocation has not yet been determined, according to the settlement. A trial had been scheduled for June 2015. Lead plaintiff Lizeth Lytle's suit, initially lodged in August 2012, asserted that the company classified its human resources managers as exempt from the Fair Labor Standards Act's overtime requirements, but that their duties were not as sophisticated as their title suggested and they should not be classified as exempt. Although given the title of manager, Lowe's human resources managers, who number as many as 1,745, lack discretion to make meaningful decisions and do not supervise employees, the plaintiffs alleged. The managers maintained that the employees' duties actually include menial tasks such as operating cash registers, cleaning bathrooms, greeting customers and sweeping floors. The plaintiffs also said on Aug. 22 they expect Lowe's to contest that the HR managers were similarly situated and would attempt to decertify the class. "Many plaintiffs as well will move, and become unavailable, as has happened, some even withdrawing, such that the risks inherent in this case strongly support settlement at this stage of litigation," the motion said. In January, U.S. District Judge Virginia M. Hernandez Covington conditionally certified the suit as a collective action, for the purposes of the FLSA claims. In April, the judge trimmed the suit, ruling the plaintiffs did not, and could not, bring Employee Retirement Income Security Act claims. Judge Covington ruled the company did not violate ERISA by keeping improper records because contributions are based on the salary, wages, overtime premium pay, bonuses and commissions that are actually paid to employees, not the number of hours they worked. Ms. Lytle alleged that because Lowe's did not account for all hours that managers worked in excess of 40 hours per week without being paid overtime, the company failed to keep records that she and the prospective ERISA class members could use to determine their plan benefits. But Judge Covington decided that the number of hours worked was relevant only to determine whether an employee was correctly classified as exempt or nonexempt for purposes of receiving overtime compensation, thus siding with the defendants, which also include Lowe's retirement plan administrator and others. The plaintiffs are represented by Mitchell L. Feldman of Feldman Morgado PA. Lowe's is represented by Juan C. Enjamio of Hunton & Williams LLP. The case is Lytle et al. v. Lowe's Home Centers Inc., case number 8:12-cv-01848, in the U.S. District Court for the Middle District of Florida. M&T BANK: "Schaefer" Suit Seeks to Recover Unpaid OT Compensation ----------------------------------------------------------------- James Schaefer Jr., on behalf of himself and all others similarly situated v. M&T Bank Corporation, Case No. 1:14-cv-06622 (S.D.N.Y., August 19, 2014), seeks to recover overtime wages and other damages pursuant to the Fair Labor Standards Act. M&T Bank Corporation is a New York business corporation located at One M&T Plaza, 12th Fl, Buffalo, New York, 14203-2399. The Plaintiff is represented by: Joseph A. Fitapelli, Esq. Brian S. Schaffer, Esq. Eric J. Gitig, Esq. FITAPELLI & SCHAFFER, LLP 475 Park Avenue South, New York, NY 10016 Telephone: (212) 300-0375 - and - Richard J. Burch, Esq. BRUCKNER BURCH PLLC 8 Greenway Plaza, Suite 1500 Houston, Texas 77046 Telephone: (713) 877-8788 MAGANA ASSOCIATION: Florida Suit Seeks to Recover Unpaid OT Wages ----------------------------------------------------------------- Luis A. Milian, and other similarly situated individuals v. Magana Association, Inc. d/b/a Pedrito's Cafe Restaurant and Angel Magana, individually, Case No. 0:14-cv-61866 (S.D. Fla., August 18, 2014), seeks to recover unpaid overtime wages pursuant to the Fair Labor Standards Act. Magana Association, Inc. and Angel Magana own and operate Pedrito's Cafe Restaurant in Broward County, Florida. The Plaintiff is represented by: Ruben Martin Saenz, Esq. SAENZ & ANDERSON, PLLC 20900 N.E. 30th Avenue, Suite 800 Aventura, FL 33180 Telephone: (305) 503-5131 Facsimile: (888) 270-5549 E-mail: msaenz@saenzanderson.com MARANATHA: Peanut Butter Products Recalled Due to Salmonella ------------------------------------------------------------ Starting date: August 19, 2014 Type of communication: Recall Alert sub-type: Food Recall Warning Subcategory: Microbiological - Salmonella Hazard classification: Class 2 Source of recall: Canadian Food Inspection Agency Distribution: National Extent of the product distribution: Retail Industry is recalling MaraNatha and Trader Joe's brands almond butters and peanut butters from the marketplace due to possible Salmonella contamination. Consumers should not consume the recalled products. Check to see if you have recalled products in your home. Recalled products should be thrown out or returned to the store where they were purchased. Food contaminated with Salmonella may not look or smell spoiled but can still make you sick. Young children, pregnant women, the elderly and people with weakened immune systems may contract serious and sometimes deadly infections. Healthy people may experience short-term symptoms such as fever, headache, vomiting, nausea, abdominal cramps and diarrhea. Long-term complications may include severe arthritis. There have been no reported illnesses associated with the consumption of these products in Canada. The recall was triggered by a recall in another country. The Canadian Food Inspection Agency (CFIA) is conducting a food safety investigation, which may lead to the recall of other products. If other high-risk products are recalled, the CFIA will notify the public through updated Food Recall Warnings. The CFIA is verifying that industry is removing recalled product from the marketplace. MAXIMUM TITLE: Has Made Unsolicited Calls, "Parker" Suit Claims --------------------------------------------------------------- Michelle L. Parker, on behalf of herself and others similarly situated v. Maximum Title Loans, LLC, Case No. 2:14-cv-01828 (D. Ariz., August 18, 2014), alleges that the Defendant places non- emergency telephone calls to the cellular telephones of consumers using an automatic telephone dialing system, without the prior express consent of the consumers. Maximum Title Loans, LLC is an Arizona limited liability company with its principal office located at 2701 W. Northern Avenue, #102, Phoenix, AZ 85051 which provides loan application services. The Plaintiff is represented by: James Lee Davidson, Esq. GREENWALD DAVIDSON PLLC 5550 Glades Rd., Ste. 500 Boca Raton, FL 33431 Telephone: (561) 826-5477 Facsimile: (561) 961-5684 E-mail: jdavidson@mgjdlaw.com MAZDA MOTOR: Faces Class Action Over Engine Design Defect --------------------------------------------------------- David Gialanella, writing for New Jersey Law Journal, reports that a putative class action filed in federal court in Trenton, N.J., claims Mazda fits certain vehicles with shoddy engines, then refuses to foot the bill for necessary repairs, even if under warranty. The suit, filed Aug. 21 in the U.S. District Court for the District of New Jersey, claims the continuous variable valve timing engine, included in numerous models and model-year vehicles, was defectively designed. "Despite Mazda being aware of the . . . defect and devising its first repair procedure in 2007, [it] did not warn owners," and instead "restricted dissemination of this knowledge to its authorized dealer service departments," the suit claims. It alleges that the company "had a rational reason for not sharing with owners Mazda's knowledge of the . . . defect: repair of the defect is expensive." According to the complaint, the "L-series" engines have since 2001 been fitted to various models: CX-7, Mazdaspeed 3, Mazdaspeed 6, Mazda 6, Mazda3, Mazda5 and MX-5. The suit claims an engine component fails prematurely, causing the timing chain to stretch or break, which can result in total engine failure -- which allegedly has occurred as early as one year and with as few as 20,000 miles on the vehicle. The suit claims Mazda knew about the defect at least as early as November 2007, when the company issued a technical service bulletin to dealers warning of an engine tick. The bulletin was updated seven times, most recently in February 2011, throughout which the warning was expanded to include more models and model years. Mazda also had knowledge of the problem through customer complaints, according to the suit, which cites incident reports documenting engine failure. Mazda tried to address the problem by re-engineering the defective component four times, but was unsuccessful, according to the suit. The suit alleges Mazda kept owners in the dark about the problem, even after the original repair parts were also found to be inadequate. The company did ultimately send a letter in January 2012 warning of an engine tick, though the suit says the letter "seeks to dispel any sense of urgency[.]" The "misleading description of the . . . defect as a 'noise concern' is part of Mazda's policy of denying repairs to owners," and the company's "intent is that owners will delay presenting their vehicle for repairs until after the purported conclusion of the warranty period," the suit alleges. The suit also alleges that Mazda denies warranty coverage if full oil-change records aren't provided, and for other reasons, and that company personnel make subjective judgments on whether a vehicle has been properly maintained by the owner. Repairs typically cost "hundreds of dollars" and three hours of labor, while some owners were forced to pay upward of $8,000 for engine replacements, the suit alleges. The named plaintiff, James Stevenson of Bedminster, N.J., claims he bought a new 2008 Mazda CX-7 that was equipped with the engine at issue and received a letter in January 2012 informing him that the warranty on the troublesome components would be extended to seven years or 70,000 miles, whichever came first. In November 2013, at less than 64,000 miles, his engine failed, and Mazda declined warranty coverage, Stevenson claims in the suit. He allegedly incurred repair and rental car costs of about $4,300. The suit alleges violation of the state Consumer Fraud Act and the federal Magnuson-Moss Warranty Act, and common-law counts of breach of express warranty, breach of implied warranty and fraudulent concealment. It seeks class certification for those who bought or leased vehicles equipped with the allegedly defective engine, as well as compensatory damages, punitive damages, attorney fees and other relief. The matter was assigned to U.S. District Judge Freda Wolfson of the District of New Jersey. One of the attorneys for the plaintiffs, Mitchell Breit -- mbreit@simmonsfirm.com -- of Simmons Hanly Conroy in New York, also did not return a call. MODERN FURNITURE: Faces "Aponte" Suit Over Failure to Pay OT ------------------------------------------------------------ Charlie Aponte and Segundo Lazzo, individually and on behalf of all others similarly situated v. Modern Furniture Manufacturing Company, LLC, William Kearny and Anthony Solicito, Case No. 2:14- cv-04813 (E.D.N.Y., August 13, 2014), is brought against the Defendant for failure to pay overtime compensation under the Fair Labor Standards Act. Modern Furniture Manufacturing Company, LLC owns and operates a furniture store and maintains a place of business in Deer Park, New York. The Plaintiff is represented by: Justin M. Reilly, Esq. Neil H. Greenberg, Esq. LAW OFFICES OF NEIL H. GREENBERG & ASSOCIATES 900 Merchant Concourse, Suite 314 Westbury, NY 11590 Telephone: (516) 228-5100 Facsimile: (516) 228-5106 E-mail: justin@nhglaw.com ngreenberg@nhglaw.com NATIONAL COLLEGIATE: Has Appealed Injunction in "O'Bannon" Suit --------------------------------------------------------------- The NCAA on August 20, 2014, appealed a federal judge's injunction in the O'Bannon case, prohibiting the governing body for college athletics from enforcing rules against student-athletes being paid for the use of their names, images and likenesses, reports Maria Dinzeo, writing for Courthouse News Service. The appeal to the 9th Circuit, filed late on August 20, was expected after the NCAA announced its intention to appeal after Wilken's ruling was released on August 8. "As previously stated, we will appeal the court's decision because we do not believe the NCAA has violated any antitrust laws," NCAA Chief Legal Officer Donald Remy said in a statement on August 20. He said the NCAA continues "to evolve our rules and processes to better serve student-athletes." In the injunction, Chief U.S. District Judge Claudia Wilken found that the NCAA's rules on paying student-athletes "unreasonably restrain trade in the market for educational athletic opportunities for Division I colleges and universities." Led by former UCLA basketball star Ed O'Bannon, 20 student athletes sued the NCAA in a 2009 class action for the right to a share in the television broadcast revenue for their names, images and likenesses. A two-week bench trial was held in June. Wilken's 99-page ruling slammed the NCAA's primary justifications for not paying college athletes: amateurism, competitive balance and the integration of athletics and academics. "The historical record that the NCAA cites as evidence of its longstanding commitment to amateurism is unpersuasive," Wilken wrote. "This record reveals that the NCAA has revised its rules governing student-athlete compensation numerous times over the years, sometimes in significant and contradictory ways. Rather than evincing the association's adherence to a set of core principles, this history documents how malleable the NCAA's definition of amateurism has been since its founding." Her injunction blocks 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." She ordered it to take effect on August 1, 2015. The NCAA is represented by: Glenn D. Pomerantz, Esq. Kelly M. Klaus, Esq. Carolyn Hoecker Luedtke, Esq. Rohit K. Singla, Esq. MUNGER, TOLLES & OLSON LLP 560 Mission Street, 27th Floor San Francisco, CA 94105-2907 Telephone: (415) 512-4000 Facsimile: (415) 512-4077 E-mail: glenn.pomerantz@mto.com kelly.klaus@mto.com carolyn.luedtke@mto.com rohit.singla@mto.com - and - Gregory L. Curtner, Esq. Robert J. Wierenga, Esq. Kimberly K. Kefalas, Esq. SCHIFF HARDIN LLP 350 Main St., Suite 210 Ann Arbor, MI 48104 Telephone: (734) 222-1500 Facsimile: (734) 222-1501 E-mail: gcurtner@schiffhardin.com rwierenga@schiffhardin.com kkefalas@schiffhardin.com The case is Edward O'Bannon, et al. v. National Collegiate Athletic Association; Electronic Arts, Inc.; and Collegiate Licensing Company, Case No. 09-CV-3329-CW, in the United States District Court for the Northern District Of California, Oakland Division. NEW YORK, NY: Denial of Bid to Dismiss Protesters Suit Affirmed --------------------------------------------------------------- More than 700 Occupy Wall Street activists who were arrested on the Brooklyn Bridge can pursue a civil rights class action, Adam Klasfeld at Courthouse News Service, citing a 2nd Circuit ruling entered on August 21, 2014. On Oct. 1, 2011, thousands of demonstrators took to the streets in support of the Occupy Wall Street movement in lower Manhattan, and the court's 56-page opinion recounts much of what was said and heard on that day. A group of these protesters chanted "Take the bridge!" and "Whose streets? Our streets!" as they approached the vehicular entrance of the Brooklyn Bridge. Video footage of the demonstration shows an officer warning through his bullhorn that police will arrest those who enter, but the protesters have since said that the announcement was inaudible, and that the police understood this. Several protesters reported that they believed authorities had "led the march across the bridge." After 10 arrestees claimed in a class action that they never received "fair warning" that crossing the bridge would cause their arrest, a divided three-judge panel of the 2nd Circuit affirmed on August 21, 2014, that the lawsuit can advance. "Any driver knows that he may not ordinarily cross an intersection against a red light, but that an officer directing traffic can lawfully order him to ignore the red light and proceed," Judge Gerard Lynch wrote for the majority. The facts of the case that may be uncovered during discovery could be "far more complicated" than this example, he added. "Although we have recounted the facts by referring to 'the police' and 'the demonstrators,' we have done so only because the record is so undeveloped that we cannot specify the conduct or knowledge of particular named defendants," the 28-page opinion, joined by Judge Guido Calabresi, states. In a bitter dissent, Judge Debra Ann Livingston denied that the arrested protesters experienced "any indignity, that is, apart from the fact of arrest while obstructing all traffic on the Brooklyn Bridge." Advancing a class action against the arresting officers "threatens the ability of police departments in this circuit lawfully and reasonably to police large-scale demonstrations and to make the necessary on-the-spot judgments about whether arrests are required in the face of unlawful conduct threatening public safety," Livingston added. While Livingston mocked the notion of faulting police for failing to use "sound-amplifying equipment adequate to the majority's taste," the majority chided Livingston's focus on "various inflammatory facts gleaned from a viewing of the videotapes." In particular, the dissent repeatedly draws attention to "a shirtless protester with a large red star on his back" standing with a raised fist. Livingston also referred to the demonstrators as an "assembled throng" that can be seen "loudly and vigorously screaming." For the majority, the competing interpretations of the footage highlight the "Rashomon-like quality of this case." But Livingston ridiculed her colleagues' "attempts to weave 'Rashomon-like' complexity into the question whether police officers had probable cause to arrest unpermitted demonstrators who were wholly obstructing traffic on the Brooklyn Bridge." As the majority found that questions remain, the protesters will be able to gather evidence to support their allegations. "It may well be that no police officer, including those who made the critical tactical decisions in this case, was aware of the relevant facts," Lynch wrote. "It is impossible, however, to know that at this stage." The Plaintiffs-Appellees are represented by: Mara Verheyden-Hilliard, Esq. Andrea Hope Costello, Esq. Carl Messineo, Esq. PARTNERSHIP FOR CIVIL JUSTICE FUND 617 Florida Avenue NW Washington, DC 20001 Telephone: (202) 232-1180 The Defendants-Appellants Ronald E. Sternberg, Esq. Leonard Koerner, Esq. Arthur G. Larkin, Esq. Michael A. Cardozo, Esq. CORPORATION COUNSEL OF THE CITY OF NEW YORK New York, NY The case is Karina Garcia v. Jane and John Does 1-40, individually and in their official capacities v. Raymond W. Kelly, individually and in his official capacity, City of New York, Michael R. Bloomberg, in his official capacity and individually, Case No. 12- 2634-cv, in the United States Court of Appeals for the Second Circuit. OCWEN FINANCIAL: Sued Over Violation of Securities Exchange Act --------------------------------------------------------------- Gary Frechter, individually and on behalf of all others similarly situated v. Ocwen Financial Corporation, William C. Erbey, Ronald M. Faris and John V. Britti, Case No. 9:14-cv-81076 (S.D. Fla., August 18, 2014), is brought against the Defendant for violation of the Securities Exchange Act. Ocwen Financial Corporation is a financial services company that focuses on residential mortgages. The Plaintiff is represented by: Joseph E. White III, Esq. Lester Rene Hooker, Esq. SAXENA WHITE PA Boca Center, 5200 Town Center Circle, Suite 601 Boca Raton, FL 33486 Telephone: (561) 394-3399 Facsimile: 394-3382 E-mail: jwhite@saxenawhite.com lhooker@saxenawhite.com - and - Robert C. Finkel, Esq. Fei-Lu Qian, Esq. Matthew Insley-Pruitt, Esq. 845 Third Avenue New York, NY 10022 Telephone: (212) 759-4600 Facsimile: (212) 486-2093 E-mail: rfinkel@wolfpopper.com fqian@wolfpopper.com minsley-pruitt@wolfpopper.com OEUF: Recalls Sparrow Cribs Due to Fall Hazard ---------------------------------------------- Starting date: August 13, 2014 Posting date: August 13, 2014 Type of communication: Consumer Product Recall Subcategory: Children's Products Source of recall: Health Canada Issue: Fall Hazard Audience: General Public Identification number: RA-41029 Affected products: Sparrow Cribs The recall involves four models of Oeuf Sparrow cribs. The cribs were sold in the colours birch, grey, walnut and white. The recalled cribs were manufactured between July 2007 and Jan. 2014 and have one of the following model numbers: The manufacture date is in MM-YYYY format, and the model numbers are located on the warning label attached to the crib's mattress support. The slats/spindles and top rail can detach from the cribs and pose a strangulation, entrapment and fall hazard to a child. Health Canada has not received any reports of consumer incidents or injuries in Canada related to the use of these products. Oeuf has received four reports of the slats/spindles and the top rail detaching from the crib. No injuries have been reported. A total of 673 were sold in Canada at various speciality stores. The recalled product was manufactured in Latvia and sold in Canada between Feb 2009 and July 2014. Companies: Distributor Oeuf LLC Brooklyn New York United States Consumers should immediately stop using the recalled product and contact Oeuf toll-free at 1-844-653-8527 from 10:00 a.m. to 6:00 p.m. ET Monday through Friday or by email to obtain a free repair kit. Consumers can also visit Oeuf's website and click on Sparrow Recall. ONEWEST BANK: 9th Cir. Remanded "Doyle" Suit to C.D. California --------------------------------------------------------------- The United States Court of Appeals for the Ninth Circuit vacated an order entered by the United States District Court for the Central District of California remanding a class action lawsuit initiated by Geraldine Doyle to California Superior Court. The Panel remanded the lawsuit to the District Court to allow the District Court to determine whether, considering the Plaintiff Class as pleaded at the time of removal, any of the exceptions to Class Action Fairness Act jurisdiction applied. The Panel held that the District Court erred in determining the citizenship of the Plaintiff Class by considering the class as pleaded in the second amended complaint, which was filed in the District Court after the action had been removed from state court. The Panel held that for the purpose of considering the applicability of the exceptions to Class Action Fairness Act jurisdiction, the District Court should have determined the citizenship of the proposed Plaintiff Class based on the complaint as of the date the case became removable. The Plaintiff-Appellee is represented by: Michael C. Eyerly, Esq. DEBLASE BROWN EYERLY LLP 680 South Santa Fe Avenue Los Angeles, CA 90021 Telephone: (310) 575-9955 Facsimile: (310) 575-9919 E-mail: eyerly@dbelegal.com The Defendant-Appellant is represented by: Elizabeth L. McKeen, Esq. Danielle N. Oakley, Esq. O'MELVENY & MYERS LLP 610 Newport Center Drive, 17th Floor Newport Beach, CA 92660 Telephone: (949) 823-7150 Facsimile: (949) 823-6994 E-mail: emckeen@omm.com doakley@omm.com The appellate case is Geraldine Doyle v. OneWest Bank, FSB, Case No. 14-56075, in the United States Court of Appeals for the Ninth Circuit. The District Court case is Geraldine Doyle v. OneWest Bank, FSB, Case No. 2:13-cv-05951-SJO-JEM, in the United States District Court for the Central District of California. PACIFIC BELL: Removed "Lefevre" Class Suit to N.D. California ------------------------------------------------------------- The class action lawsuit captioned Justin Lefevre v. Pacific Bell Directory, et al., Case No. CGC-14-539958, was removed from the San Francisco County Superior Court to the United States District Court for the Northern District of California, San Francisco Division. The District Court Clerk assigned Case No. 4:14-cv- 03803-KAW to the proceeding. The Complaint includes eight causes of action, including alleged failure to pay overtime, to provide meal periods and to provide accurate itemized wage statements. The Plaintiff is represented by: William Anthony Baird, Esq. Stanley Donald Saltzman, Esq. MARLIN & SALTZMAN LLP 29229 Canwood Street, Suite 208 Agoura Hilla, CA 91301 Telephone: (818) 991-8080 Facsimile: (818) 991-8081 E-mail: tbaird@marlinsaltzman.com ssaltzman@marlinsaltzman.com - and - Robert Ira Spiro, Esq. SPIRO LAW CORP. 11377 W. Olympic Blvd., Fifth Floor Los Angeles, CA 90064 Telephone: (310) 235-2350 Facsimile: (310) 235-2351 E-mail: ira@spirolawcorp.com Defendants YP Western Directory LLC, formerly known as Pacific Bell Directory, and YP Holdings LLC are represented by: Julie A. Totten, Esq. ORRICK, HERRINGTON & SUTCLIFFE LLP 400 Capitol Mall, Suite 3000 Sacramento, CA 95814 Telephone: (916) 329-4908 Facsimile: (916) 329-4900 E-mail: jatotten@orrick.com - and - Joshua D. Kienitz, Esq. R. Keith Chapman, Esq. LITTLER MENDELSON, P.C. 650 California Street, 20th Floor San Francisco, CA 94108-2693 Telephone: (415) 433-1940 Facsimile: (415) 399-8490 E-mail: jkienitz@littler.com kchapman@littler.com PAN ASIA: Recalls Wang Korepab Seaweed Crackers ----------------------------------------------- Starting date: August 13, 2014 Type of communication: Recall Alert sub-type: Updated Food Recall Warning (Allergen) Subcategory: Allergen - Milk Hazard classification: Class 1 Source of recall: Canadian Food Inspection Agency Recalling firm: Pan Asia Food Co. Ltd. Distribution: Ontario, Possibly National, Quebec Extent of the product distribution: Retail CFIA reference number: 9145 The food recall warning issued on June 27, 2014 has been updated to include additional product information. This additional information was identified during the Canadian Food Inspection Agency's (CFIA) food safety investigation. Pan Asia Food Company Ltd. is recalling Wang Korepab - Seaweed crackers from the marketplace because they contain milk, which is not declared on the label. People with an allergy to milk, should not consume the recalled product described. Check to see if you have recalled product in your home. Recalled product should be thrown out or returned to the store where it was purchased. If you have an allergy to milk, do not consume the recalled product as it may cause a serious or life-threatening reaction. There have been no reported reactions associated with the consumption of this product. The recall was triggered by CFIA test results. The CFIA is conducting a food safety investigation, which may lead to the recall of other products. If other high-risk products are recalled, the CFIA will notify the public through updated Food Recall Warnings. The CFIA is verifying that industry is removing recalled product from the marketplace. Affected products: 56 g. Wang Korepab - Seaweed with all products where milk is not declared on the label PELLA CORPORATION: Sued Over Failure to Disclose Window Defects --------------------------------------------------------------- Enrique and K. Renee Palacios, on behalf of all others similarly situated v. Pella Corporation, Case No. 2:14-cv-01886 (E.D. La., August 18, 2014), is brought against the Defendant for failure to disclose the design and manufacturing defects of aluminum wood clad Windows. Pella Corporation is an Iowa Corporation that sells and manufactures aluminum wood clad Windows. The Plaintiff is represented by: Andrew Allen Lemmon, Esq. Irma L. Netting, Esq. LEMMON LAW FIRM 15058 River Rd., P. O. Box 904 Hahnville, LA 70057 Telephone: (985) 783-6789 Facsimile: (985) 783-1333 E-mail: andrew@lemmonlawfirm.com irma@lemmonlawfirm.com - and - Val Patrick Exnicios, Esq. LISKA, EXNICIOS & NUNGESSER 1515 Poydras St., Suite 1400 New Orleans, LA 70112 Telephone: (504) 410-9611 Facsimile: (504) 410-9937 E-mail: vpexnicios@exnicioslaw.com PFIZER INC: 300 Canadian Women to Join Premplus Class Action ------------------------------------------------------------ CBC News reports that three-hundred Canadian women will face a pharmaceutical giant arguing the company never disclosed the risks associated with their hormone therapy. They hope more women in Atlantic Canada will join their class action lawsuit against Pfizer. Between 1977 and 2003, all of the women were prescribed Premplus, or Premarin in combination with progestin, to treat symptoms of menopause. All of the 300 women were later diagnosed with breast cancer. A lawyer representing the women says it was announced in 2002 that those drugs caused breast cancer. "The complaint that our clients have is that the drug company knew or ought to have known many years before that and they should have given Canadians a proper warning," said Doug Lennox, a lawyer for Klein Lyons. The drug Premplus was made by Wyeth Pharmaceuticals, now owned by Pfizer, one of the world's biggest drug companies. Lawyers of the women believe there are more victims in this province but time is running out to join the case. "We think based on statistical information on the Canadian Cancer Registry that this drug was responsible for as many as 12,000 cancer cases in Canada and as many as a thousand in Atlantic Canada," said Lennox. But only nine women from the region have registered and the deadline to opt in was Aug. 25. In the U.S. Pfizer settled and paid more than a billion dollars to close to 10,000 women who had taken these drugs and suffered because of it. The lawyers at Klein Lyons don't see why it should be different in Canada. For women going through menopause now, hormone replacement therapy has changed dramatically. "In the past, the hormones were more synthetic hormones and today there are more hormones that are closer to our natural bodies hormones," said pharmacist Anastasia Hanias. She says women now have access to bio-identical hormones, patches and cream, less invasive treatments and natural options. PIONEER CORPORATION: Accused of Wrongful Conduct Over ODD Price --------------------------------------------------------------- JLK Systems Group, Inc., Jeff Kozik, Meijer, Inc., Meijer Distribution, Inc., Paul Nordine, Seneca Data Distributors, Inc., Ashley Tremblay, and Gregory Starrett, on behalf of themselves and others similarly situated v. Pioneer Corporation, Pioneer North America, Inc, Pioneer Electronics (USA) Inc., and Pioneer High Fidelity Taiwan Co., Ltd., Case No. 3:14-cv-03748 (N.D. Cal., August 18, 2014), alleges that the Defendants agreed among themselves to coordinate the prices of Optical Disk Drives sold in the United States with the objective of stabilizing the prices. The Defendants manufacture, sell, and distribute Optical Disk Drives throughout the United States. The Plaintiff is represented by: Richard Alexander Saveri, Esq. Cadio R. Zirpoli, Esq. Guido Saveri, Esq. SAVERI & SAVERI, INC. 706 Sansome Street San Francisco, CA 94111 Telephone: (415) 217-6810 Facsimile: (415) 217-6813 E-mail: rick@saveri.com zirpoli@saveri.com guido@saveri.com PIZZA HUT: Franchisees File Class Action Over Price War ------------------------------------------------------- Tom Cowie, writing for The Age, reports that a class action has erupted between angry Pizza Hut franchisees and the chain's head company in the wake of a fierce price war with competitor Domino's. The Pizza Hut franchisees say they will struggle to cover costs and earn profits after parent company Yum! Restaurants Australia ordered the chain's cheapest pizzas sell for $4.95 and its most expensive for $8.95. The move represents a price cut of as much as 50 per cent for some pizzas and signals a discounting battle with market leader Domino's, as the two takeaway giants fight for a bigger slice of Australia's $3.5 billion pizza industry. The class action comes after a group of 80 franchisees failed to get an injunction in the Federal Court in June to stop the price cuts, claiming the move could put some of them out of business. Since both Pizza Hut and Domino's lowered their prices on July 1, the companies have launched an advertising blitz to promote the low-cost pizzas and attract customers away from other cheap fast food options. According to an originating application filed with the Federal Court, the franchisees are seeking to find out if Yum! breached their franchise agreement and engaged in "unconscionable conduct" by cutting its prices. There are also claims over whether Yum! owed a duty of care to its franchisees when setting the reduced prices. The group is seeking damages from Yum! to cover the lost profits since the discounts were introduced. One Pizza Hut franchisee, who did not want to be named, has struggled to stay afloat and hoped the class action would get Yum! to "just listen to us for once". "Everyone's struggling, it's a financial nightmare," the franchisee said. "It's been ongoing since before the price cuts, this just puts the final nail in the coffin." The applicant of the class action is a company run by Sydney businessman Danny Diab, regarded as one of the leading Pizza Hut franchisees in Australia. The class action launched in the Federal Court is an opt-out, meaning it could engage hundreds of Pizza Hut franchises around the country in action against its own parent company. Australasian Pizza Association president Jim Kartsounis is acting as solicitor for the franchisees, however he and Yum! declined to comment on the action while it is before the courts. Last month, Pizza Hut general manager Graeme Houston said the court action was "not ideal" but hoped increased sales would prompt a change of heart from the franchisees. "Results will always be the ultimate scorecard," he said. Mr. Kartsounis argued in the previous injunction hearing that, while the discounted pizzas might increase sales, it would not increase profitability due to the reduction in sale price and increase in cost of sales. The franchises are not an insignificant investment. According to the Pizza Hut website, franchisees are required to invest as much as $300,000 to open a new store, plus a start-up fee. Franchisees are also required to pay a monthly royalty, advertising contribution and purchasing contribution to Yum!, which are based on a percentage of a store's sales. It's not the first time a major fast food company has found itself in a battle with its own franchisees over pricing strategies. In the United States, hundreds of Burger King franchisees took their head company to court over a requirement to sell a double cheeseburger for $1. A directions hearing has been set in the Federal Court for October. RAMA AUTOMOTIVE: "Shaw" Suit Seeks to Recover Unpaid OT Wages ------------------------------------------------------------- Robert Shaw, Individually, and On Behalf of All Others Similarly Situated v. Rama Automotive, Inc. d/b/a Any-Part Auto Stores, and Allen Vogel, Case No. 2:14-cv-04909 (E.D.N.Y., August 18, 2014), seeks to recover unpaid overtime wages, liquidated damages, interest and costs, and attorney's fees in violation of the Fair Labor Standards Act and the New York Labor Laws. The Defendants own and operate Any-Part Auto Stores and maintains its principal place of business at 35 Bay Shore Road, Bay Shore, NY, 11706. The Plaintiff is represented by: Jason T. Brown, Esq. JTB LAW GROUP, LLC 155 2nd Street, Suite 4 Jersey City, NJ 07302 Telephone: (201) 630-0000 Facsimile: (855) 582-5297 E-mail: jtb@jtblawgroup.com RELIANT CAPITAL: Accused of Violating Fair Debt Collection Act -------------------------------------------------------------- Kevin Jones, individually and on behalf of all others similarly situated v. Reliant Capital Solutions, LLC, an Ohio limited liability company, and Reliant Capital Solutions, LLC, Case No. 1:14-cv-01378-JMS-TAB (S.D. Ind., August 21, 2014) alleges violations of the Fair Debt Collection Practices Act. The Plaintiff is represented by: Angie K. Robertson, Esq. Mary E. Philipps, Esq. David J. Philipps, Esq. PHILIPPS AND PHLIPPS, LTD. 9760 S. Roberts Road, Suite One Palos Hills, IL 60467 Telephone: (708) 974-2900 Facsimile: (708) 974-2907 E-mail: angiekrobertson@aol.com mephilipps@aol.com davephilipps@aol.com - and - Steven James Halbert, Esq. 11805 N. Pennsylvania Street Americenters Building Carmel, IN 46032 Telephone: (317) 706-6762 Facsimile: (317) 706-6763 E-mail: shalbertlaw@aol.com ROY POPE: Recalls Belleisle Farms Cole Slaw Due to Listeria ----------------------------------------------------------- Starting date: August 19, 2014 Type of communication: Recall Alert sub-type: Food Recall Warning Subcategory: Microbiological - Listeria Hazard classification: Class 1 Source of recall: Canadian Food Inspection Agency Recalling firm: Roy Pope and Sons Distribution: Prince Edward Island, New Brunswick, Nova Scotia, Newfoundland and Labrador Extent of the product distribution: Retail Roy Pope and Sons is recalling Belleisle Farms brand cole slaw from the marketplace due to possible Listeria monocytogenes contamination. Consumers should not consume the recalled product described. Check to see if you have recalled products in your home. Recalled products should be thrown out or returned to the store where they were purchased. Food contaminated with Listeria monocytogenes may not look or smell spoiled but can still make you sick. Symptoms can include vomiting, nausea, persistent fever, muscle aches, severe headache and neck stiffness. Pregnant women, the elderly and people with weakened immune systems are particularly at risk. Although infected pregnant women may experience only mild, flu-like symptoms, the infection can lead to premature delivery, infection of the newborn or even stillbirth. In severe cases of illness, people may die. There have been no reported illnesses associated with the consumption of this product. The recall was triggered by Canadian Food Inspection Agency (CFIA) test results. The CFIA is conducting a food safety investigation, which may lead to the recall of other products. If other high- risk products are recalled, the CFIA will notify the public through updated Food Recall Warnings. The CFIA is verifying that industry is removing recalled product from the marketplace. Affected products: 227 g. Belleisle Farms Garden Fresh Cole Slaw with best before date of 2014-08-19 SALEM BROTHERS: Recalls Kaak Crispy Baked Bread ----------------------------------------------- Starting date: August 15, 2014 Type of communication: Recall Alert sub-type: Food Recall Warning (Allergen) Subcategory: Allergen - Sesame Seeds Hazard classification: Class 2 Source of recall: Canadian Food Inspection Agency Recalling firm: Salem Brothers Distribution: Alberta, Manitoba, Nova Scotia, Ontario, Saskatchewan Extent of the product distribution: Retail CFIA reference number: 9158 SOLARWORLD: Recalls Solar Systems With Copper Grounding Lugs ------------------------------------------------------------ Starting date: August 21, 2014 Posting date: August 21, 2014 Type of communication: Consumer Product Recall Subcategory: Specialized Products Source of recall: Health Canada Issue: Electrical Hazard, Fire Hazard Audience: General Public Identification number: RA-41103 Affected products: Solar Systems with copper grounding lugs The recall includes SolarWorld solar systems installed with bare- copper grounding lugs installed after June 1, 2010. These solar systems use energy from the sun to generate electricity within a system circuit. The installation instructions for SolarWorld solar systems sold after June 1, 2010 called for the use of GBL- 4DB lugs for grounding. SolarWorld has revised these installation instructions to explicitly call for tin-coated lugs, specifically Ilsco part number GBL-4DBT. "T" is for tin-coated and indicated by the silver color of the lug. SolarWorld solar panels installed with bare-copper grounding lugs can corrode which could result in a faulty ground circuit, posing an electric shock, electrocution or fire hazard. SolarWorld has received one report of corrosion related to the bare-copper lugs in the United States. No injuries have been reported. Health Canada has not received any reports of consumer incidents or injuries related to the use of these solar panel lugs. Approximately 210,000 units of the product were sold in Canada and approximately 1.3 million units in the United States through SolarWorld installers and distributors or other distribution companies. The recalled products were manufactured in the United States and sold from June 2010 through June 2014 in Canada and the United States. Companies: Manufacturer SolarWorld Americas LLC Hillsboro Oregon United States Customers may be able to identify from the ground whether a tin- coated lug (silver) or a bare-copper lug (brown) has been used on their solar panels. Consumers who can identify the improper lugs should contact SolarWorld for replacement. If customers cannot determine which grounding lugs were used, they should contact SolarWorld to have an authorized SolarWorld agent inspect the installation and replace the lugs with tin-coated grounding lugs or equally safe alternative remedy at no cost to consumers. SolarWorld is requesting that distributors and others remove SolarWorld's installation instructions dated before June 2014 from their websites or other commercial information sources. SCOOP CAFE: Suit Seeks to Recover Unpaid Overtime Wages & Damages ----------------------------------------------------------------- Maximo Garcia, on behalf of himself and others similarly situated v. John Dadourian d/b/a Scoop Cafe, Case No. 1:14-cv-06641 (S.D.N.Y., August 19, 2014), seeks to recover unpaid overtime, liquidated damages, and attorneys' fees and costs. John Dadourian owns and operates a food and beverage establishment called Scoop Cafe located at 659 W. 181st Street, New York, NY 10033. The Plaintiff is represented by: Robert L. Kraselnik(RK 0684) LAW OFFICES OF ROBERT L. KRASELNIK, PLLC 271 Madison Avenue, Suite 1403 New York, NY 10016 Telephone: (212) 576-1857 Facsimile: (212) 576-1888 SCOTT SPORTS: Recalls Bicycles with SR Suntour Front Forks ---------------------------------------------------------- Starting date: August 13, 2014 Posting date: August 13, 2014 Type of communication: Consumer Product Recall Subcategory: Sports/Fitness Source of recall: Health Canada Issue: Fall Hazard Audience: General Public Identification number: RA-40959 Affected products: SR Suntour Suspension Front Fork on SCOTT brand bicycles The recall involves SR Suntour front forks equipped on certain SCOTT Sportsterbikes of model year 2011 through 2013. Recalled SCOTT Sportster bicycles have 700cc wheels, disc brakes and a Suntour NEX or NCX front suspension fork. Bicycle model names and numbers can be found on the top tube near the head tube. The front fork's model name is printed on the outer sides of the fork. These are the SCOTT bicycles that are affected by the recall: Model Name Model Year SR Suntour Fork ---------- ---------- --------------- Sportster 10 2012 NCX Sportster 10 Men/Solution 2011 NCX Sportster 20 Men/Solution 2012 NCX Sportster 25 Men/Solution 2011 NCX Sportster 30 Men/Solution 2011 and 2012 NEX Sportster 55 Men/Lady 2011 and 2012 NEX Sportster X10 2013 NCX Sportster X20 Men/Solution 2013 NCX Sportster X30 Men/Solution 2013 NEX Sportster X40 Men/Lady 2013 NEX Sportster X50 Men/Lady 2013 NEX The front fork can break, posing a crash hazard. SCOTT has not received any reports of broken forks in Canada. Health Canada has not received any reports of consumer incidents or injuries related to the use of the forks. Approximately 1,316 of the SR Suntour front forks were sold in Canada on SCOTT bicycles at specialty bicycle retailers. The recalled bicycles were manufactured in Taiwan and China and sold from approximately Sept. 2010 to Nov. 2013. Companies: Manufacturer SCOTT Sports SA Givisiez Switzerland Manufacturer SR Suntour Inc. Chang Hua Taiwan, Province Of China Importer Mica Sports Canada Inc. Bracebridge Ontario Canada Consumers should immediately stop using the recalled bicycles and take them to an authorized SCOTT dealer for a free repair of affected NEX model front forks or a free replacement of the NCX model front fork. SON-KWAN GROCERY: Suit Seeks to Recover Unpaid Wages & Penalties ---------------------------------------------------------------- Pedro Corrales Lopez, on behalf of himself and others similarly situated v. Son-Kwan Grocery Inc. d/b/a Blue Valley Deli & Grocery and Son Kyu Kim, jointly and severally, Case No. 1:14-cv-06638 (S.D.N.Y., August 19, 2014), seeks to recover minimum wages, overtime pay and statutory penalties for notice-and-recordkeeping violations of the Fair Labor Standards Act. Son-Kwan Grocery Inc. and Son Kyu Kim own and operate a deli and grocery store located at 570 Avenue of the Americas, County of New York. The Plaintiff is represented by: Eugene G. Eisner, Esq. EISNER & ASSOCIATES, P.C. 113 University Place New York, NY 10003 Telephone: (212) 473-8700 Facsimile: (212)473-8705 E-mail: gene@eisnerassociates.com STRICK CORP: Recalls Trailer Model Due to Rear Impact Guards ------------------------------------------------------------ Starting date: August 11, 2014 Type of communication: Recall Subcategory: Heavy Trailer Notification type: Compliance Mfr System: Structure Units affected: 1 Source of recall: Transport Canada Identification number: 2014344 TC ID number: 2014344 Certain trailers may not comply with Canada Motor Vehicle Safety Standard 223 - Rear Impact Guards. The rear impact guard may not meet the requirements of the standard. This could increase the risk of injury and/or damage to property in a crash. The correction is to be determined. Affected products: 2014 Strick Trailer SURVEY SAMPLING: Faces Suit Brought Under Telecommunications Act ---------------------------------------------------------------- Diana Mey, individually and on behalf of a class of all persons and entities similarly situated v. Survey Sampling International, LLC, Case No. 3:14-cv-01214-JCH (D. Conn., August 21, 2014) is brought under the Telecommunications Act. The Plaintiff is represented by: Brian V. Altieri, Esq. LAW OFFICE OF BALZANO & TROPIANO, P.C. 321 Whitney Avenue New Haven, CT 06510 Telephone: (203) 891-6336 Facsimile: (203) 891-6136 E-mail: BrianAltieri@gmail.com SUTTON PLACE: "Mourabity" Seeks to Recover Unpaid Overtime Wages ---------------------------------------------------------------- Ali El Mourabity, on behalf of himself and others similarly situated v. Sutton Place Restaurant & Bar Inc. d/b/a Sutton Place, and Richard Kassis, Case No. 1:14-cv-06640 (S.D.N.Y., August 19, 2014), seeks to recover unpaid overtime, liquidated damages, and attorneys' fees and costs. The Defendants own and operate a food and beverage establishment located at 1015 Second Avenue, New York, NY 10022. The Plaintiff is represented by: Robert L. Kraselnik, Esq. LAW OFFICES OF ROBERT L. KRASELNIK, PLLC 271 Madison Avenue, Suite 1403 New York, NY 10016 Telephone: (212) 576-1857 Facsimile: (212) 576-1888 TD AMERITRADE: Violated Promises and Took Kickbacks, Class Claims ----------------------------------------------------------------- Courthouse News Service reports that TD Ameritrade violated promises to its customers and made $236 million last year from sending customers' trades to whichever exchange paid it the most kickbacks for the orders, a class action claims in court. Lead plaintiff Jay Zola sued TD Ameritrade and TD Ameritrade Clearing, on August 21, 2014, in Douglas County Court. In its uniform agreement with clients, TD Ameritrade "promises to 'consider a wide variety of factors in determining where to direct [client] orders, such as execution price, opportunities for price improvement (which is when an order is executed at a price that is more favorable than the displayed national best bid or offer), market depth, order size and trading characteristics of the security, efficient and reliable order handling systems and market center service levels, speed, efficiency, accuracy of executions, and the cost of executing orders at a market,'" the lawsuit states. (Brackets and parentheses in complaint.) But that's not what happens, Zola says: "TD Ameritrade neither 'consider[s] a wide variety of factors' in order-routing nor routes its orders in the manner that is best for its customers. Rather, as one of its own executives admitted in testimony before the United States Senate, TD Ameritrade routes 'virtually all' of its orders based on a single factor: what's best for TD Ameritrade. That is, the TD Ameritrade executive admitted (and the data confirms) that TD Ameritrade has been routing virtually all of its customers' orders through whichever order internalizer or exchange is willing to pay TD Ameritrade the most money to receive its order flow. In turn, those order internalizers and exchanges expose TD Ameritrade's customers to toxic trading. "TD Ameritrade calls the kickbacks that it receives from order internalizers and exchanges 'payment for order flow.' In 2013, the company earned $236 million from this practice." In a footnote, the complaint states: "Order internalizers are market makers who match some orders internally (either for their own book or for other market participants) before directing orders to public exchanges. As set forth in greater detail below, the primary order internalizers to whom TD Ameritrade directs its order flow are Citadel Execution Services and Citi Global Markets, a subsidiary of Citigroup." The lawsuit begins with a quotation from Michael Lewis's book "Flash Boys," which alerted the world to the practices of high- frequency traders. Zola seeks class certification, disgorgement of unjust profits, costs and damages for brief of contract. The Plaintiff is represented by: Matthew A. Lathrop, Esq. LAW OFFICE OF MATTHEW A. LATHROP, P.C. 2215 Harney St., Suite 200 Omaha, NE 68102 Telephone: (402) 614-7744 Facsimile: (402) 614-6960 E-mail: Matt@LathropLawOmaha.com TD BANK: Class Seeks to Recover Unpaid Overtime Compensation ------------------------------------------------------------ TD Bank withholds wages and denies overtime to employees who work more than 40 hours a week, a class claims, according to Courthouse News Service. The case is Nneka George and Brian Conzelman v. TD Bank NA; TD Auto Finance LLC; and TD Bank US Holding Co., Case No. 9259/2014, in the New York Civil Supreme Court, Monroe County. TD BANK: Settles Store Managers' OT Class Action for $9.9 Million ----------------------------------------------------------------- Jeff Sistrunk, writing for Law360, reports that TD Bank NA has agreed to pay $9.9 million to settle a class and collective action alleging that the bank has failed to pay assistant store managers overtime wages, according to court documents filed on Aug. 22 in New York federal court. Counsel for the plaintiffs filed a motion seeking a judge's preliminary approval for the deal, which would resolve the class members' claims that TD Bank had improperly classified them as exempt from federal and state overtime requirements. The maximum $9.9 million settlement amount includes service payments, attorneys' fees and costs and other expenses, according to settlement documents. About 2,600 class members have been identified, court papers show. "Weighing the benefits of the settlement against the available evidence and the risks associated with proceeding in the litigation, the settlement amount is reasonable," the brief said. The plaintiffs filed suit against TD Bank in February 2013 and subsequently filed two amended complaints, the most recent of which asserted claims for violations of the Fair Labor Standards Act and New York, New Jersey and Pennsylvania wage-and-hour laws. According to the suit, despite the class members' managerial job titles, they perform nonexempt, nonmanagerial duties, such as serving as bank tellers, counting money in the vault and opening and closing branches. In February, a magistrate judge granted the plaintiffs' motion for conditional certification as a collective action. After deciding to mediate, the parties reached an agreement in May on the settlement amount and other key terms and spent the next several months hammering out the remaining terms, according to court documents. Eligible employees include two groups: the Rule 23 class -- which consists of three subclasses of current and former TD Bank assistant store managers employed by the bank in New York, New Jersey and Pennsylvania during the period spanning from Feb. 4, 2007, to the court's entry of the preliminary approval order -- and the FLSA class, which includes all current and former assistant store managers who have worked for TD Bank from March 14, 2011, until the entry of the order, according to court documents. The class members will be paid according to an allocation formula based on the number of weeks for which they were employed during the relevant periods, and the estimated recovery for each member is about $2,791, settlement papers said. The settlement amount represents about 86 percent of the class's lost wages, according to court documents. A dozen plaintiffs will seek approval for service awards ranging from $7,000 to $15,000, according to court papers. Counsel for the plaintiffs will apply for up to a third of the settlement amount as attorneys' fees, court documents said. The plaintiffs are represented by Justin M. Swartz, Deirdre Aaron and Jennifer L. Liu of Outten & Golden LLP, Gregg I. Shavitz, Susan H. Stern and Keith M. Stern -- kstern@shavitzlaw.com -- of Shavitz Law Group PA, Troy L. Kessler and Marijana F. Matura of Shulman Kessler LLP and Peter Winebrake of Winebrake & Santillo LLC. TD Bank is represented by Kathleen McLeod Caminiti -- kcaminiti@laborlawyers.com -- Jason Alex Storipan, Steven Siegel and Jonathan Shapiro -- jshapiro@laborlawyers.com -- of Fisher & Phillips LLP. The case is Michael Puglisi et al. v. TD Bank NA, case number 2:13-cv-00637, in the U.S. District Court for the Eastern District of New York. TREK BICYCLE: Recalls Bicycles with SR Suntour Front Forks ---------------------------------------------------------- Starting date: August 13, 2014 Posting date: August 13, 2014 Type of communication: Consumer Product Recall Subcategory: Sports/Fitness Source of recall: Health Canada Issue: Fall Hazard Audience: General Public Identification number: RA-40963 Affected products: SR Suntour Suspension Front Fork on Trek brand bicycles The recall involves SR Suntour front forks equipped on certain 2011 through 2013 model year Trek bicycles. Recalled Trek bicycles have disc brakes and one of the following Suntour front fork models: NEX, NRX (with IS mounts), XCM (on bicycles with 29-inch wheels) or XCT (on bicycles with 29-inch wheels). Bicycle model names and numbers can be found on the top tube near the seat tube or near the head tube. The recalled bicycles will also have a serial number ending in F, G or H. The serial number is on the frame of the bicycle under the bottom bracket. The front fork's model name is printed on the outer sides of the fork. The front fork can break, posing a crash hazard. Trek has received 28 reports of broken forks, including three reports in Canada. One of the incidents in Canada reportedly resulted in a fractured arm. Health Canada has not received any reports of consumer incidents or injuries related to the use of the forks. Approximately 12,165 of the SR Suntour front forks were sold in Canada on Trek bicycles at specialty bicycle retailers. The recalled bicycles were manufactured in Taiwan and China and sold from approximately May 2010 to June 2014. Companies: Manufacturer SR Suntour Inc. Chang Hua Taiwan, Province of China Importer Trek Bicycle Corporation Waterloo Wisconsin United States Consumers should immediately stop using the recalled bicycles and take them to an authorized Trek dealer for a free repair of affected NEX, XCM (29-inch) and XCT (29-inch) model front forks or a free replacement of the NRX (IS mount only) model front fork. TYSON FOODS: 10th Cir. Affirmed $4-Mil. Verdict and Counsel Fees ---------------------------------------------------------------- Tyson Foods cannot wriggle out of a $4 million verdict and attorneys' fee award for underpaying employees for time spent donning and doffing protective clothes before and after their shifts, reports David Lee at Courthouse News Service, citing a 10th Circuit ruling. Lead plaintiff Adelina Garcia and several hundred other employees from a Tyson facility in Finney, County, Kansas, filed a proposed class action in Kansas federal court in 2006. They alleged violations of the Fair Labor Standards Act and Kansas Wage Protection Act for being underpaid for the putting on and taking off of shin guards, mesh aprons, belly guards, plexiglass arm guards and knocker vests, among other things. The jury awarded approximately $500,000 in actual damages and the trial court later awarded over $3.3 million in attorneys' fees under the FLSA. The trial court also denied Tyson's motion for judgment as a matter of law. The company then appealed the ruling and argued the fee award was excessive. Tyson said there was not enough evidence to support the verdict because the employees did not prove unpaid time on a class-wide basis. A three-judge panel with the 10th Circuit affirmed on August 19, 2014, concluding "a jury could have reasonably inferred class-wide liability based on the trial evidence." "We reject Tyson's contentions," wrote U.S. Circuit Judge Robert E. Bacharach. "The plaintiffs presented sufficient evidence of undercompensation and the district court acted within its discretion in setting the fee award." Tyson acknowledged its separate, K-Code category of pay was intended to compensate workers for donning and doffing activities, the 27-page opinion stated. "Thus, the jury could have inferred recognition by Tyson that until 2010, it had underestimated the time required to get in and out of the protective clothing and equipment and to walk to and from the work stations," Bacharach wrote. "We do not know how the jury ultimately decided to find class-wide liability. But we do know that there was a reasonable basis for the jury's finding of systematic undercompensation. Thus, the evidence was sufficient for the finding of class-wide liability." The appeals court also disagreed with Tyson's argument that the jury must have assessed liability for class members who were not underpaid because the jury awarded less than what the plaintiffs asked for. "We disagree because: (1) the evidence supported a finding of undercompensation for every class member, and (2) Tyson's argument rests on speculation about how the jury calculated damages," the opinion stated. The appeals court concluded the trial court did not abuse its discretion in allowing recovery of attorneys' fees for time spent on the state claims and unsuccessful federal claims. "Though the claims had some factual and legal differences, the court could reasonably conclude that the similarities justified an award for the time spent in meals and breaks," Bacharach wrote. "The court could reasonably conclude that a relation existed between: (1) the federal claims for pre- and post-shift activities, and (2) the state claims and the federal claims for underpayment involving meals and breaks." Tyson spokesman Gary Mickelson said the company will explore its legal options. "We're disappointed by the ruling and disagree with it, especially since most of the award is for attorneys' fees, not for the plant workers," Mickelson said on August 21, 2014. The Plaintiffs-Appellees are represented by: George A. Hanson, Esq. Todd M. McGuire, Esq. STUEVE SIEGEL HANSON LLP 460 Nichols Road, Suite 200 Kansas City, MO 64112 Telephone: (816) 714-7100 E-mail: hanson@stuevesiegel.com mcguire@stuevesiegel.com The Defendants-Appellants are represented by: Michael J. Mueller, Esq. HUNTON & WILLIAMS LLP 2200 Pennsylvania Avenue, NW Washington, DC 20037 Telephone: (202) 955-1500 Facsimile: (202) 778-2201 E-mail: mmueller@hunton.com - and - Craig S. O'Dear, Esq. Terence J. Thum, Esq. BRYAN CAVE LLP One Kansas City Place 1200 Main Street, Suite 3800 Kansas City, MO 64105-2122 Telephone: (816) 374-3200 Facsimile: (816) 374-3300 E-mail: csodear@bryancave.com tjthum@bryancave.com The appellate case is Adelina Garcia, et al. v. Tyson Foods, Inc.; Tyson Fresh Meats, Inc., Case No. 12-3346, in the United States Court of Appeals for the Tenth Circuit. The original case is Adelina Garcia, et al. v. Tyson Foods, Inc.; Tyson Fresh Meats, Inc., Case No. 2:06-CV-02198-JTM, in the United States District Court for the District of Kansas. UNITED STATES: Denied Due Process to Refugees, D.C. Suit Claims --------------------------------------------------------------- Ten mothers and children sued the United States on constitutional grounds on August 22, 2014, claiming their imprisonment in the government's new immigration center in Artesia, N.M., 200 miles from the nearest large city, denies them due process, intentionally denies them access to legal counsel, and that the Obama administration's "detain and deport" policy violates the Convention Against Torture. Major immigration law offices across the country signed the 60- page federal lawsuit, representing Honduran and Salvadoran mothers and children who are imprisoned at Artesia. Attorneys for the refuge-seekers claim that the Department of Homeland Security, the Department of Justice, and Immigration and Customs Enforcement deliberately chose the remote site to imprison immigrant mothers and children to deny them access to counsel, in violation of the Immigration and Nationality Act, the Convention Against Torture, the Administrative Procedure Act, and the Fifth Amendment. The Obama administration opened up the remote prison in response to a perceived influx of immigrant children, particularly at the Texas-Mexico border. Border Patrol statistics show that undocumented immigration actually is at a 40-year low; the only increase this year has been in the percentage of immigrants who are children, and/or from Honduras. Lack of prisons to hold children, and political protests against immigrants, led the Obama administration to open the Artesia center to hold children and mothers, and speed up adjudications on their requests for refugee status. Attorneys for the American Immigration Council, one of the law offices representing the mothers and children, said in a statement on August 22, 2014, that the Obama administration is systematically violating laws by policies that have: "Categorically prejudged asylum cases with a 'detain-and- deport' policy, regardless of individual circumstances. "Drastically restricted communication with the outside world for the women and children held at the remote detention center, including communication with attorneys. If women got to make phone calls at all, they were cut off after three minutes when consulting with their attorneys. This makes it impossible to prepare for a hearing or get legal help. "Given virtually no notice to detainees of critically important interviews used to determine the outcome of asylum requests. Mothers have no time to prepare, are rushed through their interviews, are cut off by officials throughout the process, and are forced to answer traumatic questions, including detailing instances of rape, while their children are listening. "Led to the intimidation and coercion of the women and children by immigration officers, including being screamed at for wanting to see a lawyer." American Immigration Council attorney Melissa Crow called it "an assault on due process." The 10 plaintiffs in the lawsuit, some of them widows, describe death threats from violent drug gangs who control neighborhoods in Honduras and El Salvador, whose notoriously corrupt police agencies allegedly told the mothers they could do nothing to protect them. The lawsuit states: "This is an immigration case involving life and death stakes. "Plaintiffs are mothers and children from El Salvador and Honduras who, like many other Central Americans, have fled persecution in their countries of origin. "The United States government arrested plaintiff mothers and children shortly after they crossed into the United States near the Rio Grande Valley in Texas, and brought them to a makeshift detention facility in Artesia, New Mexico. The detention facility is profoundly isolated, miles away from any major cities and lawyers. The closest major metropolitan area is El Paso, Texas, which is close to 200 miles away. "Under the Immigration and Nationality Act ('INA') and its implementing regulations- as well as under the Due Process Clause -- plaintiffs have an indisputable right to seek asylum and related relief, and to a fair hearing to present their claims. But that process at Artesia has been anything but fair, and falls far short of the government's obligations under existing law. Instead, the government has created what can only be described as a 'deportation mill' that is sending mothers and children back to their home countries to face serious harm without ever having given them a meaningful opportunity to present their claims." In response to the perceived "crisis," the administration "imposed a more stringent -- and unlawful -- standard to deny meritorious claims presented by mothers and children detained at Artesia," the complaint states. It continues: "Further, the government has instituted various procedural changes to the process, which are designed to limit the number of successful claims. The government's new policies make it much more difficult for detained women and children to present and substantiate their claims to asylum or other forms of immigration relief, and to seek the assistance of counsel in doing so. Under these new policies, families detained at Artesia are almost completely cut off from communications with the outside world, provided insufficient information and in some cases no information about their rights under the INA, affirmatively precluded from effectively contacting and receiving assistance from attorneys, and ultimately forced to navigate pro se a complex immigration process that is heavily weighted against them. Detained mothers are subjected to a highly truncated process in which they are provided virtually no notice of when critical proceedings are scheduled to occur; asylum officers and immigration judges rush them to answer questions regarding the violence, death threats, and sexual abuse they fear -- all while their children are listening; their children are ordered removed without being individually screened to determine whether they have a separate basis for fearing persecution; and their claims are denied for failing to properly respond to questions about their asylum claims phrased in complicated legal terminology. "The asylum process at Artesia and its consequence -- a dramatic drop in the number of families who are found eligible to apply for asylum -- is the direct result of policies announced at the highest levels of our government. As Department of Homeland Security Secretary Jeh Johnson has stated: '[O]ur message to this group is simple: we will send you back.' That sentiment has been echoed publicly by others in the administration, who have stated that the overwhelming majority of these Central American women and children do not have meritorious asylum claims -- a political and policy-level judgment they reached before the detainees had an opportunity to present their individual cases. Thus, rather than adjudicate these cases individually based on the actual facts presented at a fair asylum interview, the government has categorically prejudged the claims of these Central American women and children, and decided -- in advance -- that these cases are not meritorious and that these women and children must be deported. That message has been heard loud and clear in Artesia. As a result, plaintiffs and numerous other women and children with obviously credible claims have been ordered removed to countries where they face danger. Indeed, the passage rate for the Artesia families is 37.8 percent, compared with the nationwide average grant rate of 77 percent under the preexisting procedures. "The government's new asylum process at Artesia patently violates the INA and its implementing regulations, as well as the Due Process Clause of the Fifth Amendment." The lawsuit recapitulates major class actions filed 30 years ago, under the Reagan administration, which also built or contracted out immigration prisons to hold people fleeing the wars in Central America. One of those lawsuits -- American Baptist Churches v. Thornburgh -- overturned more judicial decisions than any other ruling in U.S. history. Then, as now, the Justice Department was accused of isolating refuge-seekers in remote prisons and using abusive processes to deny them legal counsel and speed up their deportation. Then, as now, attorneys who shuttled to the isolated prison to try to represent refugees on an emergency basis, described systematic abuses of due process. The Obama administration has barred reporters from court proceedings at Artesia, claiming that such a bar is standard procedure, though it is not. The plaintiffs seek declaratory judgment that the "system of expedited removal" at Artesia is illegal, an injunction prohibiting it and demanding corrective action, and an order directing the defendants to give the mothers and children "a meaningful opportunity to apply for asylum," with "a reasonable amount of advance time to obtain and meet with counsel" to prepare for their removal hearings, and an order that the government "return any deported plaintiff to the United States for new proceedings that comply with the law." The Plaintiffs are represented by: Matthew E. Price, Esq. JENNER & BLOCK LLP 1099 New York Avenue, NW, Suite 900 Washington, DC 20001 Telephone: (202) 639-6000 Facsimile: (202) 639-6066 E-mail: mprice@jenner.com - and - Gabriel A. Fuentes, Esq. JENNER & BLOCK LLP 353 N. Clark Street Chicago, IL 60654 Telephone: (312) 923-2808 E-mail: gfuentes@jenner.com - and - Jennifer Chang Newell, Esq. Cecillia D. Wang, Esq. Kate Desormeau, Esq. Stephen B. Kang, Esq. AMERICAN CIVIL LIBERTIES UNION FOUNDATION, IMMIGRANTS' RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 343-0774 E-mail: stephenbkang@gmail.com - and - Lee Gelernt, Esq. Judy Rabinovitz, Esq. Andre Segura, Esq. AMERICAN CIVIL LIBERTIES UNION FOUNDATION, IMMIGRANTS' RIGHTS PROJECT 125 Broad Street, 18th Floor New York, NY 10004 Telephone: (212) 549-2600 - and - Alexandra Smith, Esq. AMERICAN CIVIL LIBERTIES UNION OF NEW MEXICO 1410 Coal Avenue, SW Albuquerque, NM 87104 Telephone: (505) 266-5915 - and - Mitra Ebadolahi, Esq. Gabriela Rivera, Esq. AMERICAN CIVIL LIBERTIES UNION OF SAN DIEGO & IMPERIAL COUNTIES PO Box 92138-7131 San Diego, CA 92138-7131 Telephone: (619) 232-2121 Facsimile: (619) 232-0036 E-mail: mitra@nyu.edu grivera@aclusandiego.org - and - Arthur B. Spitzer, Esq. AMERICAN CIVIL LIBERTIES UNION OF THE NATION'S CAPITAL 4301 Connecticut Avenue, NW, Suite 434 Washington, D.C. 20008 Telephone: (202) 457-0800 - and - Trina Realmuto, Esq. NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD 14 Beacon Street, Suite 602 Boston, MA 02108 Telephone: (617) 227-9727 - and - Linton Joaquin, Esq. Karen C. Tumlin, Esq. Melissa Keaney, Esq. Alvaro Huerta, Esq. NATIONAL IMMIGRATION LAW CENTER 3435 Wilshire Boulevard, Suite 2850 Los Angeles, CA 90010 Telephone: (213) 639-3900 E-mail: tumlin@nilc.org keaney@nilc.org huerta@nilc.org - and - Melissa Crow, Esq. Beth Werlin, Esq. Emily Creighton, Esq. AMERICAN IMMIGRATION COUNCIL 1331 G Street, NW, Suite 200 Washington, D.C. 20005 Telephone: (202) 507-7523 - and - Zachary Nightingale, Esq. Lisa Knox, Esq. VAN DER HOUT, BRIGAGLIANO & NIGHTINGALE, LLP 180 Sutter Street, 5th Floor San Francisco, CA 94104 Telephone: (415) 981-3000 E-mail: zn@vblaw.com lkno@vblaw.com The case is M.S.P.C., et al. v. Jeh Johnson, Secretary of the Department of Homeland Security, in his official capacity, et al., Case No. 1:14-cv-01437, in the U.S. District Court for the District of Columbia. VISA INC: MDL Panel Agrees to Sever Claims in Data Breach Suit -------------------------------------------------------------- Brian Mahoney and Jonathan Randles, writing for Law360, report that the Judicial Panel on Multidistrict Litigation has agreed to sever claims against Visa Inc. and MasterCard Inc. in one of a group of class actions arising from Target Corp.'s disastrous 2013 data breach, saying the claims against the credit card companies and the retailer were sufficiently different. The panel agreed to sever claims against the credit card companies and transfer them back to the District of Utah, according to an Aug. 13 order. The claims had been transferred from a federal case in which Target and the credit card companies had both been defendants. The panel said there may be some "negligible overlap in discovery" but that the claims against the credit card companies do not share sufficient questions of fact to be joined to the MDL against Target. "The claims against Target will relate solely to the data security breach that occurred in 2013," the panel explained. "In contrast, the claims against Visa and MasterCard will focus on their development of chip and PIN technology, why they have declined to implement that technology in the U.S., and whether the technology would have prevented harm to plaintiffs and class members -- not just from the Target data breach, but from any number of data breaches in the last two decades," the panel said. Target announced the security breach in December, saying hackers had stolen information contained on customers' payment cards -- referred to as "track data" -- as cards were being swiped in its stores. It is believed that the personal information of up to 70 million Target customers may have been stolen, and as many as 40 million customers may have had their credit and debit card information stolen. The breach occurred between Nov. 27 and Dec. 15 and was disclosed by the company on Dec. 19. Target was the largest in a series of breaches that recently struck prominent U.S. retailers, including Neiman Marcus Group Ltd. Inc. and Michaels Stores Inc. In May, Target disclosed in regulatory filing that it had already incurred $35 million in direct expenses as a result of the breach. Target interim CEO John Mulligan has suggested that the company's liability stemming from the incident could continue to increase. Visa is represented by Robert L. Stolebarger -- robert.stolebarger@bryancave.com -- and Andres L. Carrillo -- andres.carrillo@bryancave.com -- of Bryan Cave LLP and by James Jardine -- jjardine@rqn.com -- and Adam Richards -- arichards@rqn.com -- of Ray Quinney & Nebeker. MasterCard is represented Kenneth A. Gallo -- kgallo@paulweiss.com -- Jacqueline V. Lueptow, Gary R. Carney -- gcarney@paulweiss.com -- of Paul Weiss Rifkind Wharton & Garrison LLP, and by George M. Haley and Stephen M. Sansom of Holland & Hart LLP. Target is represented by Wendy J. Wildung -- wendy.wildung@FaegreBD.com -- and Michael A. Ponto -- michael.ponto@FaegreBD.com -- of Faegre Baker Daniels LLP, and Harold J. McElhinny -- hmcelhinny@mofo.com -- Jack W. Londen, Michael J. Agoglia, Rebekah Kaufman and David F. McDowell -- dmcdowell@mofo.com -- of Morrison & Foerster LLP. The Utah case is Christensen et al. v. Target, case number 2:13- 01136, in the U.S. District Court for the District of Utah. The MDL case is In re: Target Corp. Customer Data Security Breach Litigation, case number 0:14-md-02522, in the U.S. District Court for the District of Minnesota. WALGREEN CO: Faces "Short" Suit Over Failure to Pay Overtime ------------------------------------------------------------ Debra Short, on behalf of herself, all others similarly situated v. Walgreen Co., an Illinois corporation, Walgreen National Corporation, an Illinois corporation; and Does 1-50, inclusive, Case No. 3:14-cv-03747 (N.D. Cal., August 18, 2014), is brought against the Defendant for failure to pay overtime wages under the Fair Labor Standards Act. Walgreen Co. and Walgreen National Corporation are Illinois corporation that do pharmacy business in California. The Plaintiff is represented by: Chaim Shaun Setareh, Esq. SETAREH LAW GROUP 9454 Wilshire Boulevard, Suite 711 Beverly Hills, CA 90212-2937 Telephone: (310) 888-7771 Facsimile: (310) 888-0109 E-mail: shaun@setarehlaw.com WEISS-ROHLIG: "Pereira" Suit Seeks to Recover Unpaid OT Wages ------------------------------------------------------------- Irene Pereira and all others similarly situated under 29 USC 216(b) v. Weiss-Rohlig USA, LLC, A Foreign Corporation, Case No. 1:14-cv-23040 (S.D. Fla., August 19, 2014), seeks to recover unpaid overtime wages due as a result of violation of the Fair Labor Standards Act. Weiss-Rohlig USA, LLC is a foreign corporation that provides air and sea freight services, which is authorized to transact and conduct business in Miami-Dade County, Florida. The Plaintiff is represented by: William Thomas Brady Jr., Esq. LAW OFFICES OF WILLIAM BRADY, P.A. 800 Brickell Avenue, Penthouse 2 Miami, FL 33131 Telephone: (305) 358-7688 Facsimile: (305) 358-4010 E-mail: wbrady@wbradylaw.com YAHYA TRADING: "Rivas" Suit Seeks to Recover Unpaid OT Wages ------------------------------------------------------------ Allan Mendoza Rivas and all others similarly situated under 29 U.S.C. 216(b) v. Yahya Trading Corp. and Noor Mohamed, Case No. 1:14-cv-23063 (S.D. Fla., August 19, 2014), seeks to recover unpaid overtime wages pursuant to the Fair Labor Standards Act. Yahya Trading Corp. and Noor Mohamed own and operate a grocery store in Dade County, Florida. The Plaintiff is represented by: Jamie H. Zidell, Esq. J.H. ZIDELL, PA 300 71st Street, Suite 605 Miami Beach, FL 33141 Telephone: (305) 865-6766 Facsimile: 865-7167 E-mail: ZABOGADO@AOL.COM * Two Rulings Limit Scope of Stay on Discovery in Securities Suit ----------------------------------------------------------------- Jared L. Kopel, writing for The Recorder, reports that two recent decisions -- one by the U.S. Court of Appeals for the Ninth Circuit and the other by a federal district court -- have narrowed the scope of the automatic stay on discovery at the pleading stage in securities fraud actions. Both decisions held that information or documents lawfully provided by third parties and used to support a securities fraud complaint do not violate the discovery stay imposed by the Private Securities Litigation Reform Act of 1995 (PSLRA). These decisions, if not quite prying open the door for plaintiffs to conduct discovery at the pleading stage, at least leave it slightly ajar. In Petrie v. Electronic Game Card Inc., No. 12-55620 (9th Cir. July 2014), investors filed a securities fraud action against the company, which engaged in electronic gaming; the company's former chief executive and chief financial officers; and other individuals, called the "control persons," who served as officers, directors or both. The plaintiffs asserted that the company's financial statements were fraudulent and defendants concealed the fact that the company might lose control of a profitable European subsidiary. Plaintiffs alleged violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder. When the control persons moved to dismiss plaintiffs' first amended complaint, the district court dismissed the Section 10(b) claim but not the claim under Section 20(a), which makes "control persons" liable for primary securities violations. The former CEO and CFO apparently lived abroad and were not served with the first amended complaint. Plaintiffs then filed a second amended complaint, containing similar allegations as the first amended complaint. After ruling on the motion to dismiss by one of the control persons, the district court entered a scheduling order for discovery. Plaintiffs served a third-party subpoena on the company's outside auditors. At some point, plaintiffs' attorneys contacted the former CEO, whose counsel advised that he intended to file a motion for judgment on the pleadings. Counsel also asserted that this notice gave rise to a discovery stay under the PSLRA, which plaintiffs disputed. Subsequently, plaintiffs received materials from the outside auditors pursuant to the subpoena. The former CEO filed a motion for judgment on the pleadings and the former CFO filed a motion to dismiss, which were both granted without prejudice. Plaintiffs then filed a third amended complaint that was much more detailed and relied extensively on the documents produced by the auditors. These materials, some of which were attached as exhibits, purportedly laid bare the fraudulent scheme of the former CEO and CFO. However, the district court held that the former CEO's announced intent to file a motion for judgment on the pleadings triggered the PSLRA's discovery stay. It invoked Rule 12(f) of the Federal Rules of Civil Procedure to strike all portions of the third amended complaint referring to or relying on the auditor's materials. The court also ruled that without the stricken materials, plaintiffs failed to state a claim for any violations of Sections 10(b) or 20(a), dismissed the third amended complaint with prejudice, and entered final judgment for defendants. Plaintiffs appealed. The PSLRA provides that in any private securities action, "all discovery and other proceedings shall be stayed during the pendency of any motion to dismiss," unless the court finds upon the motion of a party that particularized discovery is necessary to preserve evidence or prevent undue prejudice to that party (15 U.S.C. Sec. 78(u)-4(b)(3)(B); Section 21D(b)(3)(B) of the Exchange Act). As the Ninth Circuit previously observed, the discovery stay was intended to avoid the "unnecessary imposition of discovery costs on defendants." (SG Cowen Sec. Corp. v. U.S. District Court for N. Dist. of Cal., 189 F.3d 909, 911 (9th Cir. 1999)). In Petrie, the Ninth Circuit noted that the filing of a motion to dismiss also triggers the discovery stay as to an amended complaint. The court also assumed the discovery stay is triggered by a motion for judgment on the pleadings in the same manner as a motion to dismiss. But the court held that the PSLRA does not prohibit a plaintiff from accepting and using third-party responses to discovery requests that were permitted at the time they were served. After upholding part of the first amended complaint, the district court issued a scheduling order allowing the parties to proceed with discovery. None of the defendants objected to the discovery order or argued on appeal that the order was improperly entered. The parties, except for one defendant, exchanged the required initial disclosures consistent with the scheduling order. It was undisputed that there was no dispositive motion pending or any notice of intent to file such a motion when plaintiffs subpoenaed records from the auditors, and no defendant or the auditors objected to the subpoena. While the discovery stay is intended to protect defendants and third parties from the burden of discovery before the legal sufficiency of the complaint is determined, the district court here had upheld allegations in the first amended complaint and permitted discovery. The fact that the district court had not upheld every part of the complaint as to all parties was not relevant. Further, if the receipt of discovery did not violate the discovery stay, the use of the auditor's materials also could not be illegal. Reversing the district court's order striking portions of the third amended complaint that relied upon the discovery materials, the Ninth Circuit stated: "We hold that a party does not violate the PSLRA discovery stay by relying on materials provided by a third-party pursuant to a valid subpoena issued when no PSLRA discovery stay was in effect." Based on these materials, it was clear the third amended complaint plead sufficient allegations against the former CEO and CFO. Accordingly, the dismissal of these claims was reversed and the action remanded to the district court for further proceedings. It's interesting to note that in striking portions of the third amended complaint, the district court relied on Fed. R. Civ. P. 12(f), permitting a court to strike from a pleading any "redundant, immaterial, impertinent, or scandalous matter." The district court suggested that the auditor's discovery was rendered "immaterial" by plaintiffs' supposed violation of the discovery stay. The Ninth Circuit held that while a district court clearly could sanction a violation of a discovery stay, there was no need here to define the lower court's authority to strike pleadings because the discovery stay was not violated. On the same day as the Petrie decision, Judge Edward Chen of the U.S. District Court for the Northern District of California also addressed the scope of the PSLRA's discovery stay in Brado v. Vocera Communications Inc., No. C-13-3567 EMC (N.D. Cal. July 30, 2014), in which plaintiffs alleged that defendants violated the securities laws by overstating Vocera's profitability. In connection with the initial fact-finding effort, an investigator for plaintiffs' counsel interviewed and obtained documents from Vocera's former senior director of internal audit, finance and administration. The documents were provided to Vocera, prior to any examination by plaintiffs' counsel, for review to determine if any of the documents were privileged. Vocera asserted that the former employee misappropriated the documents and violated a confidentiality agreement with Vocera by providing the documents to the investigator. Vocera sought the return of the documents and objected to their use by plaintiffs in opposing any motion to dismiss as violating the PSLRA's discovery stay. Plaintiffs filed a motion requesting the district court to invalidate the confidentiality agreement to the extent it prevented the former employee from cooperating with plaintiffs and to permit plaintiffs to use the documents at the pleading stage. Judge Chen denied the request to limit the confidentiality order, but granted permission for plaintiffs to use the documents, subject to any privilege claims and a protective order. Judge Chen held that the former employee's alleged misappropriation of the documents did not bar plaintiffs' use of them because there was no improper conduct by plaintiffs' counsel in obtaining the documents; there was no direct benefit provided to the former employee; and there was no prejudice to Vocera. The court rejected Vocera's argument that the use of the documents at the pleading stage constituted "discovery" under the PSLRA because the company incurred "discovery costs" in opposing plaintiffs' motion. Rather, Judge Chen ruled, Vocera had not provided the documents in response to a document request; they were already in the possession of the former employee. Vocera's costs in opposing plaintiffs' motion and negotiating a protective order were "different in quantity and quality from the burdensome discovery costs Congress had in mind" in enacting the discovery stay. While Vocera would be placed at a disadvantage by plaintiffs' acquisition of the documents, the "truth-seeking value of [the] documents is not countervailed by any statutorily recognized interest" since the PSLRA was not violated. So what do Petrie and Brado teach? First, the PSLRA's discovery stay no longer applies when a district court upholds any part of a complaint as to any defendant even if the court does not expressly uphold every part of the complaint as to all parties. Second, the discovery stay is triggered by a motion for judgment on the pleadings as well as a motion to dismiss. But if after a court has upheld a portion of a complaint, a defendant intends to file a motion for judgment on the pleadings or a motion to dismiss an amended complaint, the defendant should: declare an intent to file such a motion prior to the entry of any scheduling order and the commencement of discovery; object to entry of a discovery scheduling order and the issuance of any discovery requests, including to third parties; and avoid engaging in discovery itself, such as exchanging initial disclosures. Finally, companies must realize that once departing employees take corporate documents with them, efforts to prevent non-privileged documents from being used by plaintiffs' counsel at the pleading stage may be futile -- assuming there is no wrongdoing by plaintiffs' counsel or its investigator. Thus companies must exercise every effort to ensure that employees do not misappropriate documents at or even before employment is terminated. ********* 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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