/raid1/www/Hosts/bankrupt/CAR_Public/141006.mbx
C L A S S A C T I O N R E P O R T E R
Monday, October 6, 2014, Vol. 16, No. 198
Headlines
10TH AVENUE FOOD: Suit Seeks to Recover Unpaid Overtime & Damages
ACCELERATED FINANCIAL: Faces "Shahan" FDCPA Suit in California
AMY'S KITCHEN: "Gilbert" Suit Transferred to N.D. California
ANTICO FOODS: Labor Department Seeks TRO to Enjoin Retaliation
AVON PRODUCTS: Judge Dismisses Class Action Over Alleged Bribery
AXCESS FINANCIAL: Sued Over Improper Use of Consumer Reports
BENDIGO & ADELAIDE: Great Southern Investors Reject Settlement
BESTWEB CORP: Fails to Pay Proper Wage and OT Premium, Suit Says
BLUE BUFFALO: Wants Pet-Food Advertising Claims Coordinated
BOLT TECHNOLOGY: "Linnemeyer" Merger Suit Removed to D. Conn.
BUREAUS INVESTMENT: Court Tosses All Claims in "Aker" Fraud Case
CALIFORNIA, USA: 9th Cir. Vacates Injunction in Prisoners Suit
COCA-COLA REFRESHMENTS: Removes "Condento" Suit to M.D. Florida
COLUMBUS ADVISORY: Places Illegal Telemarketing Calls, Suit Says
CONN'S INC: To Seek Dismissal of Consolidated Class Action
COTY INC: Motion to Dismiss Consolidated Securities Suit Due
DEALERSHIP MANAGEMENT: Removes "Thompson" Suit to M.D. Florida
DIRECTV LLC: "Miller" Suit Moved From S.D. to C.D. California
DOLLAR GENERAL: "Richter" Labor Suit Resolved for $8.5 Million
DOLLAR GENERAL: "Marcum" Labor Suit Settled for $4.08 Million
DOLLAR GENERAL: Ordered to Produce Docs in Lawsuit by EEOC
DOLLAR GENERAL: Oct. 21 Status Conference for "Varela" Suit
DOLLAR GENERAL: "Main" Suit Parties to Set Trial, Conference
DOLLAR GENERAL: Faces "Avila" Suit by "Key Holders" in California
DOLLAR GENERAL: Still Faces "Wass" Lawsuit in Missouri Court
DOLLAR GENERAL: "Buttry" Lawsuit Set for February 2015 Trial
DOLLAR GENERAL: Jan 7 Deadline to File Cert. Bid in "Harsey" Case
DOLLAR GENERAL: "Vincino" Suit by Store Employees Removed to Fla.
DUKE ENERGY: Wins Summary Judgment Ruling in "Johnson" ERISA Suit
DUNE ENERGY: Being Sold to Eos Petro Too Cheaply, Class Suit Says
ENZYMOTEC LTD: Faces "Moorefield" Securities Suit in New Jersey
FANNIE MAE: "Patel" Suit Removed to Middle District of Florida
FEDERAL EXPRESS: Removes "Curry" Suit to New York District Court
FEDEX CORP: Appeals Court Reverses Rulings in Contractor Cases
FLOWERS HOSPITAL: Must Face Class Action Over Patient Data Theft
FUMIZER LLC: Faces Class Action Over False E-Cigarette Claims
GOLDMAN SACHS: $197-Mil. Legal Fees Sought in LBO Class Action
GOOGLE INC: Android Users Voluntarily Dismiss Privacy Class Suit
GREENVILLE COUNTY, SC: Faces Suit Over Violation of Civil Rights
HAIN CELESTIAL: Denied Summary Judgment in Calif. Labeling Suit
HENKEL CORP: Court Certifies Class in Davidson's ERISA Suit
HERBALIFE LTD: Has Until Oct. 20 to Respond to Amended Suit
HIKO ENERGY: Sued for Deceiving Customers by Increasing Rates
HOME DEPOT: Faces "Sound" Class Suit in Georgia Over Data Breach
HUMANADENTAL INSURANCE: Loses Reconsideration Bid in Brodsky Case
JIMMY JOHN'S: Rosen Law Firm Initiates Class Action Investigation
JOHN B. SANFILIPPO: Ill. Labor Suit Settlement Process Continues
MAG BUILDERS: Class Seeks to Recover Unpaid Overtime and Damages
MCF CONSTRUCTION: Fails to Pay Proper Overtime Wages, Suit Claims
MEDTRONIC INC: Claims in Investors' Consolidated Suit Narrowed
MIDLAND FUNDING: Court Tosses Bid to Dismiss "Burch" FDCPA Suit
MITSUBISHI FUSO: Faces Q+Food Suit Over Emission Control Systems
MONTEREY, CA: Motions to Dismiss "Hernandez" Case Tossed
NET 1 UEPS: No Certification Motion Yet in N.Y. Securities Suit
NEW YORK, USA: Gov't Intervenes in Suit Over Inadequate Counsel
NIELSEN AUDIO: Faces TCPA Class Action in California
OSI SYSTEMS: Hearing on Motion to Junk Stock Suit Set for Nov.
PARTSSOURCE INC: Removes "Gembarski" Suit to Ohio District Court
PETSMART INC: Final Approval Hearing of "Moore" Settlement Set
PETSMART INC: Discovery Ongoing in Delaware "McKee" FLSA Suit
PETSMART INC: "Negrete" Case Management Conference in Nov. 2014
PETSMART INC: Dismissed in "Matin" Lawsuit Over Jerky Treats
PETSMART INC: Court Declined to Certify Larger Class in "Pace"
PREVUES PEEKABOO: Sued for Denying Equal Access to Disabled Guest
PRICEWATERHOUSECOOPERS LLP: NY Court Reinstates Lipper Claims
SAFEGUARD PROPERTIES: Judge Certifies FDCPA Class Action
SAKS FIFTH: Removes "Malik" Suit to California District Court
SAMSUNG TELECOM: Expert Report Blocked in "Random Shut Down" Case
SHORES & RUARK: Accused of Not Paying Mexican Workers Proper OT
TEMAK MEDICAL: Violates Fair Debt Collection Act, N.J. Suit Says
TRACY'S TREASURES: CMI's TCPA Case Returns to Circuit Court
TRINITY RIVER: Accused of Failing to Pay Overtime Under FLSA
UNITED STATES: Sued for Miscalculating VA Workers' Overtime Pay
VERIZON ENTERPRISE: Court Allows Arbitration in "Lenfest" Case
WALGREEN CO: Faces "Adams" Wage and Hour Suit in E.D. Wisconsin
WALGREEN CO: Faces "Moran" Suit in R.I. Over Unpaid Overtime
WALGREEN CO: Faces "Adjaye" Suit Alleging Violations of FLSA
WHISPERTEXT LLC: Wins Bid to Dismiss "McKenna" TCPA Class Action
WHOLE FOODS: Four Suits Consolidated in Greek Yogurt MDL in Mass.
* FINRA Proposal Confines Plaintiff Lawyers
*********
10TH AVENUE FOOD: Suit Seeks to Recover Unpaid Overtime & Damages
-----------------------------------------------------------------
Bella Ramas, on behalf of herself and FLSA Collective Plaintiffs
v. 10th Avenue Food Depot, Inc. and Dong Seob Kim, Case No. 1:14-
cv-07866-ALC (S.D.N.Y., September 29, 2014) alleges that, pursuant
to the Fair Labor Standards Act, the Plaintiff and the Class are
entitled to recover from the Defendants: (1) unpaid overtime, (2)
liquidated damages and (3) attorneys' fees and costs.
10th Avenue Food Depot, Inc., is a New York domestic business
corporation headquartered in New York City. Dong Seob Kim is a
company officer or manager.
The Plaintiff is represented by:
Anne Melissa Seelig, Esq.
C.K. Lee, Esq.
LEE LITIGATION GROUP, PLLC
30 East 39th Street, 2nd Floor
New York, NY 10016
Telephone: (212) 465-1124
Facsimile: (212) 465-1181
E-mail: anne@leelitigation.com
cklee@leelitigation.com
ACCELERATED FINANCIAL: Faces "Shahan" FDCPA Suit in California
--------------------------------------------------------------
John Shahan, an individual, on his own behalf and on behalf of all
others similarly situated v. Accelerated Financial Solutions, LLC,
a Virginia limited liability company, Dynamic Recovery Solutions,
LLC, a South Carolina limited liability company, and Does 1 to
100, inclusive, Case No. 8:14-cv-01577 (C.D. Cal., September 29,
2014) asserts that the Defendants' use of misleading language in
attempting to collect putative debts violates the federal Fair
Debt Collection Practices Act.
Accelerated Financial Solutions, LLC is a Virginia limited
liability company. Dynamic Recovery Solutions, LLC is a South
Carolina limited liability company. The Defendants are debt
collectors.
The Plaintiff is represented by:
Zack Broslavsky, Esq.
Jonathan A. Weinman, Esq.
BROSLAVSKY & WEINMAN, LLP
11755 Wilshire Boulevard, Suite 1250
Los Angeles, CA 90025
Telephone: (310) 575-2550
Facsimile: (310) 464-3550
E-mail: zbroslavsky@bwcounsel.com
jweinman@bwcounsel.com
- and -
Ethan Preston, Esq.
PRESTON LAW OFFICES
8245 North 85th Way
Scottsdale, AZ 85258
Telephone: (480) 269-9540
Facsimile: (866) 509-1197
E-mail: ep@eplaw.us
AMY'S KITCHEN: "Gilbert" Suit Transferred to N.D. California
------------------------------------------------------------
The class action lawsuit captioned Gilbert v. Amy's Kitchen, Inc.,
Case No. 1:13-cv-09004, was transferred from the U.S. District
Court for the Northern District of Illinois to the U.S. District
Court for the Northern District of California (San Francisco).
The California District Court Clerk assigned Case No. 3:14-cv-
04380-MEJ to the proceeding.
The Plaintiff is represented by:
Michael J. Malatesta, Esq.
MALATESTA LAW OFFICES, LLC
134 N. LaSalle Street, Suite 425
Chicago, IL 60602
Telephone: (312) 445-0514
Facsimile: (312) 264-0650
E-mail: mike@malatestalaw.com
The Defendant is represented by:
Andrea M. Weiss, Esq.
Dale J. Giali, Esq.
Michael L. Resch, Esq.
MAYER BROWN LLP
350 South Grand Avenue, 25th Floor
Los Angeles, CA 90071
Telephone: (213) 229-5123
Facsimile: (213) 625-0248
E-mail: aweiss@mayerbrown.com
dgiali@mayerbrown.com
mresch@mayerbrown.com
- and -
Matthew David Provance, Esq.
MAYER BROWN LLP
71 S. Wacker Dr.
Chicago, IL 60606
Telephone: (312) 701-8598
E-mail: mprovance@mayerbrown.com
ANTICO FOODS: Labor Department Seeks TRO to Enjoin Retaliation
--------------------------------------------------------------
Thomas E. Perez, Secretary of Labor, United States Department of
Labor v. Antico Foods, LLC, and Giovanni DiPalma, Case No. 1:14-
cv-03143-SCJ (N.D. Ga., September 30, 2014) seeks Temporary
Restraining Order enjoining the Defendants from engaging in and
threatening retaliation against the Company's current and former
employees.
The Wage and Hour Division, United States Department of Labor, is
currently investigating the Defendants to determine whether they
are in compliance with the Fair Labor Standards Act.
According to the Secretary of Labor's application for TRO, Mr.
DiPalma has unlawfully interfered with the federal investigation
in several ways by intimidating, terminating, and threatening to
terminate employees of the Company and threatening to call
immigration authorities concerning employees believed to have
cooperated in the Department of Labor investigation.
The Plaintiff is represented by:
M. Patricia Smith, Esq., Solicitor of Labor
Kristin R. Murphy, Esq., Attorney
Stanley E. Keen, Esq., Regional Solicitor
Robert L. Walter, Esq., Counsel
OFFICE OF THE SOLICITOR
U. S. Department of Labor
61 Forsyth Street, S.W., Room 7T10
Atlanta, GA 30303
Telephone: (678) 237-0613
Facsimile: (404) 302-5438
E-mail: murphy.kristin.r@dol.gov
AVON PRODUCTS: Judge Dismisses Class Action Over Alleged Bribery
----------------------------------------------------------------
Jan Wolfe, writing for Law.com, reports that allegations that
Avon Products Inc. bribed its way into the Chinese market sparked
a hugely expensive internal investigation, reams of bad press and
a settlement to resolve U.S. criminal claims. But a judge sent a
proposed securities class action over the scandal back to the
drawing board on Sept. 29, dealing a defeat to plaintiffs lawyers
at Motley Rice.
In a 59-page ruling, U.S. District Judge Paul Gardephe in
Manhattan dismissed without prejudice a class action alleging that
Avon's leadership lied to shareholders about its compliance with
the Foreign Corrupt Practices Act. Many of Avon's alleged
misstatements weren't materially misleading, Judge Gardephe
concluded, and the plaintiffs hadn't shown that Avon's leaders
knew about or consciously disregarded compliance failures by the
company.
The ruling is a victory for attorneys at Wachtell, Lipton, Rosen &
Katz and Kellogg, Huber, Hansen, Todd, Evans & Figel. Peter Hein
-- PCHein@wlrk.com -- and William Martin -- WJMartin@wlrk.com --
of Wachtell represented Avon and its former CEO Andrea Jung. Reid
Figel -- rfigel@khhte.com -- of Kellogg Huber represented former
Avon vice chairman Charles Cramb.
Avon uses a direct selling business model in which representatives
hawk its products door-to-door. The Chinese government lifted a
ban on direct selling in 2006 amid heavy lobbying by U.S.
companies. Avon was the first company to obtain a direct selling
license in the country.
In 2008, Avon disclosed that it was opening an internal
investigation to determine whether its employees bribed Chinese
government officials in order to expand in the country. The
internal investigation prompted Avon to suspend four employees in
2010, including the president of its Chinese unit. In May 2011,
The Wall Street Journal reported that Avon had expanded the scope
of its bribery probe.
Plaintiffs firms began targeting Avon in July 2011. They alleged
that Avon's leaders lied to the investing public for years about
the effectiveness of its internal controls and accounting systems.
Motley Rice was appointed to lead the case in September 2011,
besting bids by Wolf Popper and Berman DeValerio.
The Motley Rice attorneys on the case, led by Gregg Levin, had
some reason for optimism. By early this year, Avon had spent more
than $300 million on its internal investigation, which has been
conducted by attorneys at Mayer Brown, Cravath, Swaine & Moore and
other firms. In May, Avon agreed to pay the U.S. Department of
Justice and the U.S. Securities and Exchange Commission a combined
$135 million to resolve civil and criminal investigations into
alleged FCPA violations.
Despite the seriousness of Avon's FCPA woes, Judge Gardephe ruled
on Sept. 26 that plaintiffs hadn't established that the company
intended to deceive investors. The judge held that some alleged
misstatements, such as a 2004 claim by Avon that it "observes the
very highest standards of ethics," are too general to be
actionable.
Motley Rice's Levin didn't immediately return a call seeking
comment.
AXCESS FINANCIAL: Sued Over Improper Use of Consumer Reports
------------------------------------------------------------
Vontanise Poole, on behalf of herself and all others similarly
situated v. Axcess Financial Services, Inc. d/b/a Check 'N Go,
Case No. 1:14-cv-00765-MRB (S.D. Ohio, September 30, 2014) is
filed on behalf of job applicants, who were the subject of
consumer reports obtained by the Defendant as a precondition of
employment during the five-year period preceding the filing of the
action (the "Class Period") seeking remedies under the Fair Credit
Reporting Act.
Axcess Financial Services, Inc., doing business as Check 'n Go, is
an Ohio Corporation headquartered in Cincinnati.
The Plaintiff is represented by:
Anthony R. Pecora, Esq.
Matthew A. Dooley, Esq.
O'TOOLE, McLAUGHLIN, DOOLEY & PECORA, CO., LPA
5455 Detroit Road
Sheffield Village, OH 44054
Telephone: (440) 930-4001
Facsimile: (440) 934-7208
E-mail: apecora@omdplaw.com
mdooley@omdplaw.com
- and -
Andrew L. Weiner, Esq.
Jeffrey B. Sand, Esq.
THE WEINER LAW FIRM LLC
3525 Piedmont Road
7 Piedmont Center, 3rd Floor
Atlanta, GA 30305
Telephone: (404) 205-5029
Facsimile: (866) 800-1482
E-mail: aw@atlantaemployeelawyer.com
js@atlantaemployeelawyer.com
BENDIGO & ADELAIDE: Great Southern Investors Reject Settlement
--------------------------------------------------------------
Shaun Drummond, writing for The Sydney Morning Herald, reports
that clients will only get to share in AU$3.55 million, which
amounts to a "trifling" AU$16.79 per AU$10,000 invested.
Law firm DC Legal argues most of the 21,000 members of the Great
Southern class action will receive a pittance from the AU$23
million settlement agreed with Bendigo & Adelaide Bank in July.
So far more than 1000 investors in the agricultural scheme Great
Southern, which went bust in 2009, have objected to the payout,
although Great Southern liquidators have found 426 objections to
be invalid.
Most of them are among DC Legal's 2000 clients. The firm said its
clients will only get to share in $3.55 million, which amounts to
a "trifling" AUAU$16.79 per AU$10,000 invested. It argues they
are unfairly getting a much smaller amount than the clients of
lead plaintiff Macpherson + Kelley and want the Supreme Court of
Victoria to block the deal and allow the judgment that was
forestalled by the settlement to be given.
DC Legal argues the court must be satisfied the "settlement is
fair and reasonable and has been undertaken in the interests of
the group members as a whole".
Some class action litigants are also attempting to get out of the
settlement so they can still take separate action, which the
settlement rules out.
The deal done on July 23, two days before the Supreme Court of
Victoria was to give its decision after an eight-month long
hearing, confirmed that Bendigo & Adelaide Bank could pursue
investors for more than AU$300 million in unpaid loans it acquired
when it bought Adelaide Bank, which in turn had acquired most of
the loans previously held by Great Southern Finance.
The settlement also allows Javelin Asset Management, controlled by
the former managing director of Great Southern, John Young, to
enforce its claim to about AU$23 million in loans it bought from
Great Southern Finance for just AU$9 million before the investment
vehicle collapsed.
M+K, which also represents about 2000 clients, agreed to a
settlement of AU$20.25 million.
DC Legal principal director Bruce Dennis said the AU$20 million
payout to M+K's clients is low given a much smaller group of 800
Great Southern investors already received AU$20 million in an
action backed by law firm Solomon Brothers backed by litigation
funder Bentham IMF.
M+K argues there is no "premium" being paid to its clients. "It
simply returns the investors who funded the case to the same
position as those who did not fund the case but sought to benefit
from it."
Mr. Dennis argues non-M+K clients have also paid legal costs to
pursue the action. However, none have paid directly for the class
action that has led to the Deed of Settlement between M+K and
Bendigo & Adelaide Bank which is to be ruled on by the Supreme
Court of Victoria.
BESTWEB CORP: Fails to Pay Proper Wage and OT Premium, Suit Says
----------------------------------------------------------------
Michael DeVito, Individually and on Behalf of All Others Similarly
Situated v. Bestweb Corporation, Andrew Dickey and Mark Dickey,
Jointly and Severally, Case No. 7:14-cv-07872-KMK (S.D.N.Y.,
September 29, 2014) alleges that the Plaintiff was not paid
overtime premium pay for work performed in excess of 40 hours in a
given workweek and was not paid the appropriate prevailing wage
rates.
Bestweb Corporation is an active New York corporation
headquartered in Croton-On-Hudson, New York. Bestweb installs and
contracts Internet service and electrical and teledata network.
The Individual Defendants are owners or officers of the Company.
The Plaintiff is represented by:
Brent Edward Pelton, Esq.
Taylor Bell Graham, Esq.
PELTON & ASSOCIATES, P.C.
111 Broadway, Suite 1503
New York, NY 10000
Telephone: (212) 385-9700
Facsimile: (212) 385-0800
E-mail: pelton@peltonlaw.com
graham@peltonlaw.com
BLUE BUFFALO: Wants Pet-Food Advertising Claims Coordinated
-----------------------------------------------------------
Amanda Bronstad, writing for The National Law Journal, reports
that a federal panel of judges was set to hear oral arguments on
Sept. 25 about whether to coordinate at least nine class actions
filed by consumers of Blue Buffalo pet products.
The cases allege that Blue Buffalo Co. Ltd. made false statements
in advertising that its premium pet foods don't contain chicken
byproducts, grain or other preservatives.
Blue Buffalo, based in Wilton, Conn., has asked the U.S. Judicial
Panel on Multidistrict Litigation to coordinate pretrial
proceedings in the cases -- filed in California, Connecticut,
Florida, Illinois, Missouri and New York -- before U.S. District
Judge Stefan Underhill in Connecticut.
The MDL panel was set to hear arguments on the motion in
Louisville.
Nestle Purina PetCare Co., filed similar claims on May 6, saying
its laboratory test found that chicken and poultry byproducts made
up 20 percent of the ingredients in some of Blue Buffalo's
products. On May 14, Blue Buffalo filed a defamation suit against
Nestle Purina, a division of Nestle S.A. in Switzerland. Both
cases have been consolidated before U.S. District Judge Rodney
Sippel in the Eastern District of Missouri.
Blue Buffalo's attorney noted that the consumer class actions
mirror the allegations in the Nestle Purina complaint.
"Indeed, Nestle Purina's complaint and its claimed laboratory test
appear to be the basis of the follow-on class action in the
Eastern District of Missouri, as well as the six subsequently
filed class actions in Illinois, New York, Florida, Connecticut,
and Missouri," wrote Martin Flumenbaum, a senior partner at New
York's Paul, Weiss, Rifkind, Wharton & Garrison, in Blue Buffalo's
June 16 motion to coordinate the litigation.
Mr. Flumenbaum declined to comment.
Plaintiffs attorneys were divided as to whether to coordinate the
cases in Connecticut or in the Eastern District of Missouri, where
Nestle Purina is based in St. Louis. Some argued the litigation
between Nestle Purina and Blue Buffalo should be included.
"Purina is a case that arises from the same set of operative facts
regarding Blue Buffalo and the accuracy of its representations,"
said plaintiffs attorney Scott Kamber -- skamber@kamberlaw.com --
managing partner of Amber in New York.
Blue Buffalo has maintained in court papers that the Nestle Purina
case is dissimilar to the class actions, which focus on alleged
consumer fraud. Meanwhile, Blue Buffalo has sought to amend its
counterclaims to sue two advertising agencies behind Nestle
Purina's marketing campaign, which includes a website called
PetFoodHonesty.com. Nestle Purina, which opposes that request,
has sought to amend its complaint to include Blue Buffalo's claims
about the odor control of its cat litter and the vitamins and
nutrients contained in its pet food products.
Nestle Purina spokeswoman Evelyn Swiderski declined to comment.
Nestle Purina is represented by Carmine Zarlenga --
czarlenga@mayerbrown.com -- a partner in the Washington office of
Mayer Brown.
BOLT TECHNOLOGY: "Linnemeyer" Merger Suit Removed to D. Conn.
-------------------------------------------------------------
Defendants Teledyne Technologies Incorporated and Lightning Merger
Sub, Inc., removed the class action lawsuit styled Linnemeyer v.
Bolt Technology Corporation, et al., Case No. FST-CV-14-6023479 S,
from the Superior Court of the State of Connecticut, Judicial
District of Stamford-Norwalk at Stamford, to the United States
District Court for the District of Connecticut. The District
Court Clerk assigned Case No. 3:14-cv-01438-SRU to the proceeding.
The lawsuit arises out of the Defendants' alleged breaches of
fiduciary duty or the aiding and abetting of those breaches in
connection with the proposed acquisition of Bolt by Teledyne
through an unfair process and at an unfair price.
Bolt Technology Corporation is a Connecticut corporation with its
principal place of business in Connecticut. The Individual
Defendants are directors and officers of Bolt. Bolt is a leading
worldwide developer and manufacturer of marine seismic data
acquisition equipment used for offshore oil and natural gas
exploration.
Teledyne Technologies Incorporated is a Delaware corporation with
its principal place of business in California. Lightning Merger
Sub, Inc. is a Connecticut corporation.
The Plaintiff is represented by:
Timothy P. Moylan, Esq.
Jonathan P. Whitcomb, Esq.
DISERIO MARTIN O'CONNOR & CASTIGLIONI, LLP
One Atlantic Street
Stamford, CT 06901
Telephone: (203) 569-1105
Facsimile: (203) 348-2321
E-mail: jwhitcomb@dmoc.com
tmoylan@dmoc.com
- and -
Randall J. Baron, Esq.
Rick Atwood, Esq.
David T. Wissbroecker, Esq.
Edward M. Gergosian, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
655 West Broadway, Suite 1900
San Diego, CA 92101
Telephone: (619) 231-1058
Facsimile: (619) 231-7423
E-mail: randyb@rgrdlaw.com
ricka@rgrdlaw.com
DWissbroecker@rgrdlaw.com
EGergosian@rgrdlaw.com
- and -
Hamilton Lindley, Esq.
DUNNAM DUNNAM HARMON WEST LINDLEY & RYAN LLP
4125 W. Waco Drive
Waco, TX 76710
Telephone: (254) 753-6437
Facsimile: (254) 753-7434
E-mail: hlindley@dunnamlaw.com
Defendants Bolt Technology Corporation, Michael C. Hedger, Stephen
F. Ryan, Kevin M. Conlisk, Peter J. Siciliano, Gerald A. Smith,
Michael H. Flynn, George R. Kabureck, and Raymond M. Soto are
represented by:
Frank J. Silvestri, Jr., Esq.
LEVETT ROCKWOOD P.C.
33 Riverside Avenue
Westport, CT 06880
Telephone: (203) 222-3108
E-mail: fsilvestri@levettrockwood.com
- and -
John J. Tumilty, Esq.
Scott R. Magee, Esq.
EDWARDS WILDMAN PALMER LLP
111 Huntington Avenue
Boston, MA 02199
Telephone: (617) 239-0100
Facsimile: (617) 227-4420
E-mail: jtumilty@edwardswildman.com
smagee@edwardswildman.com
Defendants Teledyne Technologies Incorporated and Lightning Merger
Sub, Inc., are represented by:
James T. Shearin, Esq.
PULLMAN & COMLEY LLC
850 Main Street
P.O. Box 7006
Bridgeport, CT 06601
Telephone: (203) 330-2240
Facsimile: (203) 567-8888
E-mail: jtshearin@pullcom.com
- and -
Walter P. DeForest, Esq.
David J. Berardinelli, Esq.
Steven K. Schartup, Esq.
DEFOREST KOSCELNIK YOKITIS & BERARDINELLI
436 Seventh Avenue, 30th Floor
Pittsburgh, PA 15219
Telephone: (412) 227-3100
Facsimile: (412) 227-3130
E-mail: deforest@deforestlawfirm.com
berardinelli@deforestlawfirm.com
- and -
Shawn Fox, Esq.
Laurent S. Wiesel, Esq.
Kristina M. Allen, Esq.
MCGUIREWOODS LLP
1345 Avenue of the Americas, 7th Floor
New York, NY 10105
Telephone: (212) 548-2140
Facsimile: (212) 715-6281
E-mail: sfox@mcguirewoods.com
lwiesel@mcguirewoods.com
kallen@mcguirewoods.com
BUREAUS INVESTMENT: Court Tosses All Claims in "Aker" Fraud Case
----------------------------------------------------------------
District Judge John J. Tharp, Jr., dismissed all claims in SANDRA
AKER, on behalf of herself and the a class of similarly situated
persons, and STATE OF ILLINOIS ex rel. SANDRA AKER Plaintiffs, v.
BUREAUS INVESTMENT GROUP PORTFOLIO NO. 15 LLC, RIEXINGER &
ASSOCIATES LLC, and STEPHEN P. RIEXINGER., Defendants, NO. 12 C
03633, (N.D. Ill.).
The Amended Class Action Complaint alleges that Bureaus violated
the Illinois Collection Agency Act (ICAA) and the Illinois
Consumer Fraud Act (ICFA) by acting as an unlicensed collection
agency and misrepresenting its ability to collect a debt. The
complaint further alleges that Bureaus, the law firm of Riexinger
& Associates, and its principle, Stephen Riexinger, all violated
the Fair Debt Collection Practices Act, 15 U.S.C. Section 1692 et
seq., with respect to a dunning letter sent by Riexinger to
plaintiff Sandra Aker seeking to collect a debt allegedly owned by
Bureaus.
The defendants moved to dismiss all claims, and on September 29,
2014, the motion was granted. A copy of Judge Tharp's memorandum
opinion and order is available at http://is.gd/D1VAztfrom
Leagle.com.
Stephen P. Riexinger, Defendant, represented by David M Schultz --
dschultz@hinshawlaw.com -- Hinshaw & Culbertson & Justin M Penn --
jpenn@hinshawlaw.com -- Hinshaw & Culbertson.
CALIFORNIA, USA: 9th Cir. Vacates Injunction in Prisoners Suit
--------------------------------------------------------------
California's improvement of conditions for disabled prisoners
should not be measured by a court-appointed technical expert, the
9th Circuit ruled on September 26, 2014, according to Tim Hull at
Courthouse News Service.
The 26-page opinion vacates part of an injunction in a decades-
long case alleging that California has repeatedly ignored the
needs and rights of disabled persons behind bars.
A court-ordered remedial plan approved in 2001 established
California's obligations to such prisoners under federal law.
Allegations of the state's failure to comply have prompted
modifications twice. The most recent change, in 2012, established
new procedures for investigating and recording alleged violations
of court orders and the inmates' federal rights, and it sought to
enforce disciplinary actions and resolve disputes among the
parties.
A three-judge appellate panel rejected most of California's
challenges to the modified injunction on September 26, but did
find its terms unprecedented and improper in one respect. That
newly invalidated section empowered the court-appointed technical
expert in the case to resolve disputes and decide whether the
state has complied with the remedial plan, without further court
review. Such "Rule 706" experts usually act only as advisers in
cases with complex scientific and technical issues, the court
found. The power afforded the expert in this case far exceeds
what a "non-judicial officer" is typically given, the court found.
"We have never approved a Rule 706 expert to act in an
adjudicative capacity with such finality as prescribed in Sections
D.2 and D.3 of the Modified Injunction," Judge A. Wallace Tashima
wrote for a three-member panel. "While we have approved the
appointment of non-judicial officers to make recommendations and
resolve disputes ancillary to complex litigation, those
appointments specifically limited the expert to making
recommendations subject to review by the district court."
The panel rejected all of the state's other arguments against the
modified injunction, including that its terms are overly intrusive
and thus violated the Prison Litigation Reform Act (PLRA).
Noting that the "the core PLRA inquiry is 'whether the same
vindication of federal rights could have been achieved with less
involvement by the court in directing the details of defendants'
operations,'" the panel found the state's record spoke for itself.
"The state, through its conduct over the past twenty years, has
proven that the same vindication of federal rights cannot be
achieved with less involvement by the district court," the ruling
states. "The state has failed to suggest -- let alone implement
-- any viable means to ensure accountability and protect the
plaintiff class that is narrower or less intrusive than the
Modified Injunction, despite ample time and opportunity to do so."
The Plaintiffs-Appellees are represented by:
Donald Specter, Esq.
Warren George, Esq.
Rebekah Evenson, Esq.
Penny Godbold, Esq.
PRISON LAW OFFICE
1917 5th St.
Berkeley, CA 94710
Telephone: (510) 280-2621
Facsimile: (510) 280-2704
E-mail: warren.george@bingham.com
revenson@prisonlaw.com
- and -
Michael W. Bien, Esq.
Gay C. Grunfeld, Esq.
Lisa Ells, Esq.
Blake Thompson, Esq.
Michael Freedman, Esq.
ROSEN BIEN GALVAN & GRUNFELD LLP
315 Montgomery Street, Tenth Floor
San Francisco, CA 94104
Telephone: (415) 433-6830
Facsimile: (415) 433-7104
E-mail: mbien@rbgg.com
ggrunfeld@rbgg.com
lells@rbgg.com
bthompson@rbgg.com
mfreedman@rbgg.com
- and -
Linda Kilb, Esq.
DISABILITY RIGHTS EDUCATION & DEFENSE FUND, INC.
3075 Adeline Street, Suite 210
Berkeley, CA 94703
Telephone: (510) 644-2555
Facsimile: (510) 841-8645
The Defendants-Appellants are represented by:
Kamala D. Harris, Esq., Attorney General of California
Jonathan L. Wolff, Esq., Senior Assistant Atty. General
Jay C. Russell, Esq., Supervising Deputy Atty. General
Janelle M. Smith, Esq., Deputy Attorney General
Jay M. Goldman, Esq., Supervising Deputy Atty. General
San Francisco, CA
The appellate case is John Armstrong, et al. v. Edmund G. Brown,
et al., Case No. 12-17103, in the United States Court of Appeals
for the Ninth Circuit. The District Court case is John
Armstrong, et al. v. Edmund G. Brown, et al., Case No. 4:94-cv-
02307 CW, in the U.S. District Court for the Northern District of
California.
COCA-COLA REFRESHMENTS: Removes "Condento" Suit to M.D. Florida
---------------------------------------------------------------
The class action lawsuit styled Condento v. Coca-Cola Refreshments
USA, Inc., et al., Case No. 14-CA-4881, was removed from the
Thirteenth Judicial Circuit, in and for Hillsborouh County,
Florida, to the U.S. District Court for the Middle District of
Florida (Tampa). The District Court Clerk assigned Case No. 8:14-
cv-02453-CEH-MAP to the proceeding.
The lawsuit seeks relief under the Fair Labor Standards Act.
The Plaintiff is represented by:
Michael Schuette, Esq.
JOHN BALES ATTORNEYS
9700 Dr MLK Jr. St. N, Suite 400
St. Petersburg, FL 33702
Telephone: (727) 823-9100
E-mail: mschuette@johnbales.com
The Defendants are represented by:
Jonathan A. Beckerman, Esq.
Linda Noel, Esq.
LITTLER MENDELSON, PC
333 SE 2nd Ave., Suite 2700
Miami, FL 33131
Telephone: (305) 400-7500
Facsimile: (305) 418-7368
E-mail: jabeckerman@littler.com
lnoel@littler.com
COLUMBUS ADVISORY: Places Illegal Telemarketing Calls, Suit Says
----------------------------------------------------------------
Philip J. Charvat on behalf of himself and others similarly
situated v. Columbus Advisory Group, Ltd., Case No. 2:14-cv-01747-
GLF-EPD (S.D. Ohio, September 29, 2014) accuses the Defendant of
placing telemarketing calls to a telephone number the Plaintiff
had registered on the national Do Not Call Registry, in violation
of the Telephone Consumer Protection Act.
Mr. Charvat, a resident of Ohio, contends that he never consented
to receive these calls, and they were placed to him for
telemarketing purposes.
Columbus Advisory Group, LTD. is a New York corporation with its
principal office in New York City.
The Plaintiff is represented by:
Brian K. Murphy, Esq.
Joseph F. Murray, Esq.
Geoffrey J. Moul, Esq.
Jennifer A. Hemenway, Esq.
MURRAY MURPHY MOUL + BASIL LLP
1533 Lake Shore Drive
Columbus, OH 43204
Telephone: (614) 488-0400
Facsimile: (614) 488-0401
E-mail: murphy@mmmb.com
murray@mmmb.com
moul@mmmb.com
hemenway@mmmb.com
- and -
Edward A. Broderick, Esq.
Anthony I. Paronich, Esq.
BRODERICK LAW, P.C.
125 Summer St., Suite 1030
Boston, MA 02110
Telephone: (617) 738-7080
Facsimile: (617) 314-7783
- and -
Matthew P. McCue, Esq.
THE LAW OFFICE OF MATTHEW P. MCCUE
1 South Avenue, Suite 3
Natick, MA 01760
Telephone: (508) 655-1415
Facsimile: (508) 319-3077
E-mail: mmccue@massattorneys.net
- and -
Brian K. Murphy, Esq.
MURRAY MURPHY MOUL & BASIL
1533 Lake Shore Drive
Columbus, OH 43204
Telephone: (614) 488-0400
Facsimile: (614) 488-0401
E-mail: murphy@mmmb.com
CONN'S INC: To Seek Dismissal of Consolidated Class Action
----------------------------------------------------------
Conn's Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on September 2, 2014, for the quarterly
period ended July 31, 2014, that between March 5, 2014 and May 5,
2014, the Company and three of its current executive officers were
sued in three purported securities class action lawsuits, each
filed in the United States District Court for the Southern
District of Texas. Each of the complaints allege that the
defendants made false and misleading statements and/or failed to
disclose material adverse facts about the Company's business,
operations, and prospects. The complaints allege violations of
sections 10(b) and 20(a) of the Securities Exchange Act of 1934
and Rule 10b-5 promulgated thereunder. The complaints do not
specify the amount of damages sought.
On June 3, 2014, the court consolidated these three complaints
into a single, putative class action, In re Conn's, Inc.
Securities Litigation, Master File No. 14:14-CV-00548, and
appointed lead plaintiffs. On July 21, 2014, the lead plaintiffs'
filed an amended and consolidated complaint. The deadline for the
defendants to respond to the complaint was September 4, 2014.
The defendants intend file a motion to dismiss the consolidated
complaint and vigorously defend against these claims. It is not
possible at this time to predict the timing or outcome of the
litigation.
Conn's is a specialty retailer that offers a broad selection of
quality, branded durable consumer goods and related services in
addition to a proprietary credit solution for its core credit
constrained consumers.
COTY INC: Motion to Dismiss Consolidated Securities Suit Due
------------------------------------------------------------
Coty Inc. had a September deadline to file a motion to dismiss a
consolidated securities lawsuit pending against it in the United
States Southern District of New York, according to the company's
Aug. 28, 2014, Form 10-K filing with the U.S. Securities and
Exchange Commission for the fiscal year ended June 30, 2014.
Earlier this year, two putative class action complaints were filed
in the United States Southern District of New York against the
Company, the company's directors and certain of the company's
executive officers alleging violations of the federal securities
laws in connection with the company's initial public offering
("IPO"). The first complaint, filed on February 13, 2014, was
captioned Eugene Stricker vs. Coty Inc., et al. (the "Stricker
Action"), while the second complaint, filed on February 21, 2014,
was captioned Norman C. Carey vs. Coty Inc., et al. (the "Carey
Action").
The Stricker Action and the Carey Action have been consolidated
under the caption In re Coty Inc. Securities Litigation, and
following the court's appointment of lead plaintiffs and lead
counsel, a consolidated and amended complaint (the "Securities
Complaint") was filed on July 7, 2014. The Securities Complaint
asserts claims against Coty Inc., its directors, certain of its
executive officers, and the underwriters of the IPO under Sections
11, 12 and 15 of the Securities Act of 1933, as amended (the
"Securities Act"), and seeks, on behalf of persons who purchased
the company's Class A Common Stock in the IPO, damages of an
unspecified amount and equitable or injunctive relief.
The Company's motion to dismiss is due on September 23, 2014.
DEALERSHIP MANAGEMENT: Removes "Thompson" Suit to M.D. Florida
--------------------------------------------------------------
The class action lawsuit entitled Thompson, et al. v. Dealership
Management Services, Inc., et al., Case No. 05-2014-CA-38293, was
removed from the Brevard County Circuit Court to the U.S. District
Court for the Middle District of Florida (Orlando). The District
Court Clerk assigned Case No. 6:14-cv-01592-RBD-DAB to the
proceeding.
The lawsuit is brought under the Fair Labor Standards Act over
unpaid wages.
The Plaintiffs are represented by:
Hunter Alston Higdon, Esq.
CONNELL HIGDON
1775 W Hibiscus Blvd., Suite 102
Melbourne, FL 32901
Telephone: (321) 444-4444
Facsimile: (321) 802-5034
E-mail: hunter@connellhigdon.com
Defendants Dealership Management Services, Inc., and Timothy
Puffer are represented by:
Trizia Ginarella Eavenson, Esq.
MOORE EAVENSON BAUGHAN, PLC
895 Barton Blvd., Suite B
Rockledge, FL 32955
Telephone: (321) 636-2221
Facsimile: (321) 636-2224
E-mail: Trizia@MEBLawFirm.com
Defendants TT of Brevard, Inc., TT of Melbourne, Inc., Christopher
Heinze, T.R. Paige and Terry Taylor are represented by:
Scott W. Atherton, Esq.
ATHERTON LAW GROUP, P.A.
224 Datura St., #815
West Palm Beach, FL 33401-6151
Telephone: (561) 293-2530
Facsimile: (561) 293-2593
E-mail: scott@athertonlg.com
DIRECTV LLC: "Miller" Suit Moved From S.D. to C.D. California
-------------------------------------------------------------
The class action lawsuit captioned Tara Miller v. Directv, LLC,
Case No. 3:13-cv-02073, was transferred from the U.S. District
Court for the Southern District of California to the U.S. District
Court for the Central District of California (Los Angeles). The
Central District Court Clerk assigned Case No. 2:14-cv-07579-FMO-
SH to the proceeding.
The Plaintiff is represented by:
Joshua B. Swigart, Esq.
HYDE AND SWIGART
2221 Camino Del Rio South, Suite 101
San Diego, CA 92108
Telephone: (619) 233-7770
Facsimile: (619) 297-1022
E-mail: josh@westcoastlitigation.com
- and -
Seyed Abbas Kazerounian, Esq.
Matthew M. Loker, Esq.
KAZEROUNI LAW GROUP APC
245 Fischer Avenue, Unit D1
Costa Mesa, CA 92626
Telephone: (800) 400-6808
Facsimile: (800) 520-5523
E-mail: ak@kazlg.com
ml@kazlg.com
- and -
Todd M. Friedman, Esq.
LAW OFFICES OF TODD M. FRIEDMAN PC
324 South Beverly Drive, Suite 725
Beverly Hills, CA 90211
Telephone: (877) 206-4741
Facsimile: (866) 633-0228
E-mail: tfriedman@attorneysforconsumers.com
The Defendant is represented by:
James Scott Scheper, Esq.
SELTZER CAPLAN MCMAHON VITEK
750 B Street 2100 Symphony Towers
San Diego, CA 92101-8177
Telephone: (619) 685-3003
Facsimile: (619) 702-6835
E-mail: scheper@scmv.com
- and -
Rebecca J. Wahlquist, Esq.
SNELL AND WILMER LLP
350 South Grand Avenue, Suite 2600
Los Angeles, CA 90071
Telephone: (213) 929-2544
Facsimile: (213) 929-2525
E-mail: bwahlquist@swlaw.com
DOLLAR GENERAL: "Richter" Labor Suit Resolved for $8.5 Million
--------------------------------------------------------------
The parties in the lawsuit Cynthia Richter, et al. v. Dolgencorp,
Inc., et al. reached a preliminary agreement, which has been
formalized and submitted to the court for approval, to resolve the
matter for up to $8.5 million, according to Dollar General
Corporation's Aug. 28, 2014, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Aug. 1,
2014.
On August 7, 2006, a lawsuit entitled Cynthia Richter, et al. v.
Dolgencorp, Inc., et al. was filed in the United States District
Court for the Northern District of Alabama (Case No. 7:06-cv-
01537-LSC) ("Richter") in which the plaintiff alleges that she and
other current and former Dollar General store managers were
improperly classified as exempt executive employees under the Fair
Labor Standards Act ("FLSA") and seeks to recover overtime pay,
liquidated damages, and attorneys' fees and costs. On August 15,
2006, the Richter plaintiff filed a motion in which she asked the
court to certify a nationwide class of current and former store
managers. The Company opposed the plaintiff's motion. On March 23,
2007, the court conditionally certified a nationwide class. On
December 2, 2009, notice was mailed to over 28,000 current or
former Dollar General store managers. Approximately 3,950
individuals opted into the lawsuit, approximately 1,000 of whom
have been dismissed for various reasons, including failure to
cooperate in discovery.
On April 2, 2012, the Company moved to decertify the class. The
plaintiff's response to that motion was filed on May 9, 2012.
On October 22, 2012, the court entered a memorandum opinion
granting the Company's decertification motion. On December 19,
2012, the court entered an order decertifying the matter and
stating that a separate order would be entered regarding the opt-
in plaintiffs' rights and plaintiff Cynthia Richter's individual
claims. To date, the court has not entered such an order.
The parties agreed to mediate the matter, and the court informally
stayed the action pending the results of the mediation.
Mediations were conducted in January, April and August 2013. On
August 10, 2013, the parties reached a preliminary agreement,
which has been formalized and submitted to the court for approval,
to resolve the matter for up to $8.5 million. The Company has
deemed the settlement probable and recorded such amount as the
estimated expense in the second quarter of 2013.
DOLLAR GENERAL: "Marcum" Labor Suit Settled for $4.08 Million
-------------------------------------------------------------
The parties in Jonathan Marcum, et al. v. Dolgencorp. Inc. (Civil
Action No. 3:12-cv-00108-JRS) reached a preliminary agreement to
resolve the matter for up to $4.08 million, according to Dollar
General Corporation's Aug. 28, 2014, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended Aug.
1, 2014.
On April 9, 2012, the Company was served with a lawsuit filed in
the United States District Court for the Eastern District of
Virginia entitled Jonathan Marcum, et al. v. Dolgencorp. Inc.
(Civil Action No. 3:12-cv-00108-JRS) in which the plaintiffs, one
of whose conditional offer of employment was rescinded, allege
that certain of the Company's background check procedures violate
the Fair Credit Reporting Act ("FCRA"). Plaintiff Marcum also
alleges defamation. According to the complaint and subsequently
filed first and second amended complaints, the plaintiffs seek to
represent a putative class of applicants in connection with their
FCRA claims. The Company responded to the complaint and each of
the amended complaints. The plaintiffs' certification motion was
due to be filed on or before April 5, 2013; however, plaintiffs
asked the court to stay all deadlines in light of the parties'
ongoing settlement discussions. On November 12, 2013, the court
entered an order lifting the stay but has not issued a new
scheduling order in light of the parties' preliminary agreement to
resolve the matter.
The parties have engaged in formal settlement discussions on three
occasions, once in January 2013 with a private mediator, and again
in March 2013 and July 2013 with a federal magistrate. On February
18, 2014, the parties reached a preliminary agreement to resolve
the matter for up to $4.08 million, which must be submitted to and
approved by the court.
The Company's Employment Practices Liability Insurance ("EPLI")
carrier has been placed on notice of this matter and participated
in both the formal and informal settlement discussions. The EPLI
policy covering this matter has a $2 million self-insured
retention. Because the Company believes that it is likely to
expend the balance of its self-insured retention in settlement of
this litigation or otherwise, it accrued $1.8 million in the
fourth quarter of 2012, an amount that is immaterial to the
Company's consolidated financial statements as a whole.
DOLLAR GENERAL: Ordered to Produce Docs in Lawsuit by EEOC
----------------------------------------------------------
The United States District Court for the Northern District of
Illinois entered an order compelling Dollar General Corporation to
produce certain documents, information, and electronic data for
the period 2004 to present in relation to a suit filed by the
United States Equal Employment Opportunity Commission over its
criminal background check policy, according to the company's Aug.
28, 2014, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Aug. 1, 2014.
In September 2011, the Chicago Regional Office of the United
States Equal Employment Opportunity Commission ("EEOC" or
"Commission") notified the Company of a cause finding related to
the Company's criminal background check policy. The cause finding
alleges that the Company's criminal background check policy, which
excludes from employment individuals with certain criminal
convictions for specified periods, has a disparate impact on
African-American candidates and employees in violation of Title
VII of the Civil Rights Act of 1964, as amended ("Title VII").
The Company and the EEOC engaged in the statutorily required
conciliation process, and despite the Company's good faith efforts
to resolve the matter, the Commission notified the Company on July
26, 2012 of its view that conciliation had failed.
On June 11, 2013, the EEOC filed a lawsuit in the United States
District Court for the Northern District of Illinois entitled
Equal Opportunity Commission v. Dolgencorp, LLC d/b/a Dollar
General (Case No. 1:13-cv-04307) in which the Commission alleges
that the Company's criminal background check policy has a
disparate impact on "Black Applicants" in violation of Title VII
and seeks to recover monetary damages and injunctive relief on
behalf of a class of "Black Applicants." The Company filed its
answer to the complaint on August 9, 2013.
On January 29, 2014, the court entered an order, which, among
other things, bifurcates the issues of liability and damages
during discovery and at trial. Under this order, fact discovery
relating to liability is to be completed by September 15, 2014.
However, on August 1, 2014, the court ordered the parties to
submit a proposal for modification of the fact discovery deadline
by August 29, 2014. Additionally, the court scheduled a routine
status conference for September 3, 2014.
On July 29, 2014, the court entered an order compelling the
Company to produce certain documents, information, and electronic
data for the period 2004 to present.
DOLLAR GENERAL: Oct. 21 Status Conference for "Varela" Suit
-----------------------------------------------------------
A status conference has been scheduled by the Superior Court for
October 21, 2014 in the suit Juan Varela v. Dolgen California and
Does 1 through 50 (Case No. RIC 1306158), according to Dollar
General Corporation's Aug. 28, 2014, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended Aug.
1, 2014.
On May 23, 2013, a lawsuit entitled Juan Varela v. Dolgen
California and Does 1 through 50 (Case No. RIC 1306158) ("Varela")
was filed in the Superior Court of the State of California for the
County of Riverside in which the plaintiff alleges that he and
other "key carriers" were not provided with meal and rest periods
in violation of California law and seeks to recover alleged unpaid
wages, injunctive relief, consequential damages, pre-judgment
interest, statutory penalties and attorneys' fees and costs. The
Varela plaintiff seeks to represent a putative class of California
"key carriers" as to these claims. The Varela plaintiff also
asserts a claim for unfair business practices and seeks to proceed
under California's Private Attorney General Act ("PAGA").
The Company removed the action to the United States District Court
for the Central District of California (Case No. 5:13-cv-01172VAP-
SP) on July 1, 2013, and filed its answer to the complaint on July
1, 2013. On July 30, 2013, the plaintiff moved to remand the
action to state court.
On September 13, 2013, notwithstanding the Company's opposition,
the court granted plaintiff's motion and remanded the case. The
Company filed a petition for permission to appeal to the United
States Court of Appeals for the Ninth Circuit on September 23,
2013. Although the petition for permission to appeal remains
pending, based on the Ninth Circuit's denial of a similar petition
filed by the Company in the Main matter, the Company has filed a
petition for coordination of the Main and Varela matters. A status
conference has been scheduled by the Superior Court for October
21, 2014.
DOLLAR GENERAL: "Main" Suit Parties to Set Trial, Conference
------------------------------------------------------------
The parties in the lawsuit entitled Victoria Lee Dinger Main v.
Dolgen California, LLC and Does 1 through 100 (Case No. 34-2013-
00146129) are to advise the court of the date agreed upon for a
trial and settlement conference no later than January 30, 2015,
according to Dollar General Corporation's Aug. 28, 2014, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended Aug. 1, 2014.
Similarly, on June 6, 2013, a lawsuit entitled Victoria Lee Dinger
Main v. Dolgen California, LLC and Does 1 through 100 (Case No.
34-2013-00146129) ("Main") was filed in the Superior Court of the
State of California for the County of Sacramento. The Main
plaintiff alleges that she and other "key holders" were not
provided with meal and rest periods, accurate wage statements and
appropriate pay upon termination in violation of California wage
and hour laws and seeks to recover alleged unpaid wages,
declaratory relief, restitution, statutory penalties and
attorneys' fees and costs. The Main plaintiff seeks to represent
a putative class of California "key holders" as to these claims.
The Main plaintiff also asserts a claim for unfair business
practices and seeks to proceed under the PAGA.
The Company removed this action to the United States District
Court for the Eastern District of California (Case No. 2:13-cv-
01637-MCE-KJN) on August 7, 2013, and filed its answer to the
complaint on August 6, 2013. On August 29, 2013, the plaintiff
moved to remand the action to state court. The Company opposed
the motion. On October 28, 2013, the court granted plaintiff's
motion and remanded the case. The Company filed a petition for
permission to appeal to the United States Court of Appeals for the
Ninth Circuit on November 7, 2013. The plaintiff filed its
opposition brief on November 15, 2013. The Ninth Circuit denied
the petition for permission to appeal on April 10, 2014.
On February 6, 2014, the Superior Court referred the matter to the
trial setting process and ordered the parties to confer and agree
upon a date for trial and a mandatory settlement conference. The
parties are to advise the court of the date agreed upon for a
trial and settlement conference no later than January 30, 2015.
If the parties are unable to agree upon a date by such time, the
court will assign the next available dates.
On April 28, 2014, the Company filed a petition for coordination
of the Main and Varela matters. As no hearing date has been
scheduled, no deadline currently exists for either plaintiff's
response to the petition for coordination.
DOLLAR GENERAL: Faces "Avila" Suit by "Key Holders" in California
-----------------------------------------------------------------
A lawsuit entitled Oscar Avila v. Dolgen California, LLC and Does
1 through 50 (Case No. S-1500-CV-282549) ("Avila") was filed in
the Superior Court of the State of California for the County of
Kern on July 22, 2014, according to Dollar General Corporation's
Aug. 28, 2014, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended Aug. 1, 2014.
The Avila plaintiff alleges that he and other "key holders" were
not provided with meal and rest periods, accurate wage statements
and appropriate pay upon termination in violation of California
wage and hour laws and seeks to recover alleged unpaid wages,
declaratory relief, restitution, pre- and post- judgment interest,
statutory penalties and attorneys' fees and costs. The Avila
plaintiff seeks to represent a putative class of California "key
holders" as to these claims. The Avila plaintiff also asserts a
claim for unfair business practices.
DOLLAR GENERAL: Still Faces "Wass" Lawsuit in Missouri Court
------------------------------------------------------------
The suit Judith Wass v. Dolgen Corp, LLC continues the United
States District Court for the Western District of Missouri (Case
No. 6:113-cv-03267-JFM), according to Dollar General Corporation's
Aug. 28, 2014, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended Aug. 1, 2014.
On May 31, 2013, a lawsuit entitled Judith Wass v. Dolgen Corp,
LLC (Case No. 13PO-CC00039) ("Wass") was filed in the Circuit
Court of Polk County, Missouri. The Wass plaintiff seeks to
proceed collectively on behalf of a nationwide class of similarly
situated non-exempt store employees who allegedly were not
properly paid for certain breaks in violation of the FLSA. The
Wass plaintiff seeks back wages, injunctive and declaratory
relief, liquidated damages, pre- and post-judgment interest, and
attorneys' fees and costs.
On July 11, 2013, the Company removed this action to the United
States District Court for the Western District of Missouri (Case
No. 6:113-cv-03267-JFM). The Company filed its answer on July 18,
2013.
On March 28, 2014, the Wass plaintiff moved for conditional
certification of her FLSA claims. Shortly thereafter, on April 3,
2014, the plaintiff moved the court for permission to conduct
additional limited discovery and to file a supplemental brief in
support of her motion for conditional certification. By agreement
of the parties, the court permitted the limited discovery.
Plaintiff filed a supplemental brief in support of her motion for
conditional certification on June 20, 2014, to which the Company
filed its response on July 25, 2014. Plaintiff's reply brief in
further support of her motion for conditional certification is due
to be filed on or before September 18, 2014. The Company also
filed a motion for summary judgment as to plaintiff's individual
claims on July 25, 2014. Plaintiff's response deadline to the
Company's motion for summary judgment currently is September 18,
2014.
DOLLAR GENERAL: "Buttry" Lawsuit Set for February 2015 Trial
------------------------------------------------------------
The United States District Court for the Middle District of
Tennessee has set the suit Rachel Buttry and Jennifer Peters v.
Dollar General Corp. (Case No. 3:13-cv-00652) for trial on
February 17, 2015, according to the company's Aug. 28, 2014, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended Aug. 1, 2014.
Similarly, on July 2, 2013, a lawsuit entitled Rachel Buttry and
Jennifer Peters v. Dollar General Corp. (Case No. 3:13-cv-00652)
("Buttry") was filed in the United States District Court for the
Middle District of Tennessee. The Buttry plaintiffs seek to
proceed on a nationwide collective basis under the FLSA and as a
statewide class under Tennessee law on behalf of non-exempt store
employees who allegedly were not properly paid for certain breaks.
The Buttry plaintiffs seek back wages (including overtime),
injunctive and declaratory relief, liquidated damages,
compensatory and economic damages, "consequential" and
"incidental" damages, pre-judgment and post-judgment interest, and
attorneys' fees and costs.
The Company filed its answer on August 7, 2013. The plaintiffs
filed their motion for conditional certification of their FLSA
claims on December 5, 2013, to which the Company responded on
February 3, 2014. On April 4, 2014, the court denied plaintiffs'
certification motion. Plaintiffs filed a motion for
reconsideration or in the alternative for permission to seek
interlocutory appeal in the United States Court of Appeals for the
Sixth Circuit on April 18, 2014. The court denied the plaintiffs'
motion on April 24, 2014.
On July 11, 2014, the plaintiffs filed a petition for writ of
mandamus with the United States Court of Appeals for the Sixth
Circuit. The Company is not required at this time to file a
response to the petition for writ of mandamus. On August 18,
2014, the district court entered an order staying the proceedings
pending a decision by the appellate court regarding plaintiffs'
writ of mandamus.
The Buttry plaintiffs' motion for certification of their statewide
claims is due to be filed on or before September 22, 2014. The
court has set this matter for trial on February 17, 2015.
DOLLAR GENERAL: Jan 7 Deadline to File Cert. Bid in "Harsey" Case
-----------------------------------------------------------------
The United States District Court for the Middle District of
Florida required plaintiff in Danielle Harsey v. Dolgencorp, LLC
(Case No. 5:14-cv-00168-WTH-PRL) to file motions for class
certification of her statewide claims and conditional
certification of her claims under the FLSA on or before January 7,
2015, according to the company's Aug. 28, 2014, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended Aug. 1, 2014.
On March 19, 2014, a lawsuit entitled Danielle Harsey v.
Dolgencorp, LLC (Case No. 5:14-cv-00168-WTH-PRL) ("Harsey") was
filed in the United States District Court for the Middle District
of Florida. The Harsey plaintiff seeks to proceed on a nationwide
collective basis under the FLSA and as a statewide class under the
Florida Minimum Wage Act on behalf of all similarly situated non-
exempt store employees who allegedly were not paid for all hours
worked. The Harsey plaintiff seeks back wages (including
overtime), liquidated damages, pre- and post-judgment interest,
injunctive relief, and attorneys' fees and costs. The Company
filed its answer on May 7, 2014.
On August 19, 2014, the court entered a scheduling order, which
among other things, requires plaintiff to file motions for class
certification of her statewide claims and conditional
certification of her claims under the FLSA on or before January 7,
2015. The order further sets the matter for trial during the
weeks of November 2, 9, or 16, 2015.
DOLLAR GENERAL: "Vincino" Suit by Store Employees Removed to Fla.
-----------------------------------------------------------------
Dollar General Corporation removed the matter Leslie Vincino v.
Dolgencorp, LLC (Case No. 2014-CA-517) to the United States
District Court for the Northern District of Florida (Case No.
1:14-cv-142-RS-GRJ), according to the company's Aug. 28, 2014,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended Aug. 1, 2014.
On July 14, 2014, a lawsuit entitled Leslie Vincino v. Dolgencorp,
LLC (Case No. 2014-CA-517) ("Vincino") was filed in the Circuit
Court, Eight Judicial Circuit, for Levy County, Florida. The
Vincino plaintiff seeks to proceed on a nationwide collective
basis under the FLSA on behalf of all similarly situated non-
exempt store employees who allegedly were not paid for all hours
worked. The Vincino plaintiff seeks back wages (including
overtime), liquidated damages, pre-judgment interest, and
attorneys' fees and costs. The Vincino plaintiff also asserts
individual claims for violation of the Florida Civil Rights Act
for alleged discrimination based on alleged unidentified
disabilities. For the claims asserted under the Florida Civil
Rights Act, the Vincino plaintiff seeks compensatory damages, back
wages, front pay, punitive damages, attorneys' fees and costs. On
August 11, 2014, the Company removed this matter to the United
States District Court for the Northern District of Florida (Case
No. 1:14-cv-142-RS-GRJ). The Company filed its answer on August
18, 2014.
DUKE ENERGY: Wins Summary Judgment Ruling in "Johnson" ERISA Suit
-----------------------------------------------------------------
Before the court in the case captioned THOMAS JOHNSON, on behalf
of himself and on behalf of a class of persons similarly situated,
Plaintiff, v. DUKE ENERGY RETIREMENT CASH BALANCE PLAN and DUKE
ENERGY CORPORATION, Defendants, NO. 1:13CV156, (M.D. N.C.) are
cross motions for summary judgment.
The Plaintiff, Mr. Johnson, asserting a single claim under the
Employee Retirement Income Security Act (ERISA), 29 U.S.C. Section
1001 et seq., has filed a partial motion for summary judgment. The
Defendants have responded in opposition, and have filed their own
motion for summary judgment.
Chief District Judge William L. Osteen, Jr., granted the
Defendants' motion, and denied the Plaintiff's motion in a
memorandum opinion and order dated September 29, 2014, a copy of
which is available at http://is.gd/5Rp6XYfrom Leagle.com.
DUKE ENERGY CORPORATION, Defendant, represented by DONALD HUGH
TUCKER, JR. -- dtucker@smithlaw.com -- SMITH ANDERSON BLOUNT
DORSETT MITCHELL & JERNIGAN, L.L.P., JONATHAN TRAVIS HOCKADAY --
thockaday@smithlaw.com -- SMITH ANDERSON BLOUNT DORSETT MITCHELL &
JERNIGAN, MICHAEL W. MITCHELL -- mmitchell@smithlaw.com -- SMITH
ANDERSON BLOUNT DORSETT MITCHELL & JERNIGAN, ANNE E. REA --
area@sidley.com -- SIDLEY AUSTIN, LLP & STEVEN J. HOROWITZ --
shorowitz@sidley.com -- SIDLEY AUSTIN, LLP.
DUNE ENERGY: Being Sold to Eos Petro Too Cheaply, Class Suit Says
-----------------------------------------------------------------
Courthouse News Service reports that directors of Dune Energy
agreed to sell the company to Eos Petro for the "grossly
inadequate" price of $0.30 a share, a class claims.
The Plaintiff is represented by:
Sammy Ford IV, Esq.
ABRAHAM WATKINS NICHOLS SORRELS AGOSTO & FRIEND
800 Commerce Street
Houston, TX 77002
Telephone: (713) 222-7211
E-mail: sford@abrahamwatkins.com
The case is Thomas Whatley v. Dune Energy Inc., et al., Case No.
201455208, in the Texas District Court, Harris County.
ENZYMOTEC LTD: Faces "Moorefield" Securities Suit in New Jersey
---------------------------------------------------------------
Dennis W. Moorefield, Individually and On Behalf of All Others
Similarly Situated v. Enzymotec Ltd., Ariel Katz, Oren Bryan,
Jacob (Yaacov) Bachar, Nir Belzer, Yoav Doppelt, Steve Dubin, Dov
Pekelman, Yossi Peled, Michal Silverberg, Joseph Tenne, Imanuel
Wasserman, Yossi Ohana, Merrill Lynch, Pierce Fenner & Smith
Incorporated, Jefferies Llc, Canaccord Genuity Inc., Wedbush
Securities Inc. and Wells Fargo Securities, LLC, Case No. 2:14-cv-
06075-FSH-JBC (D.N.J., September 30, 2014) is a federal securities
class action accusing the Defendants of engaging in a fraudulent
scheme to artificially inflate Enzymotec's stock price.
The lawsuit is brought on behalf of all persons or entities, who
purchased or otherwise acquired Enzymotec securities pursuant or
traceable to the Company's Registration Statement and Prospectus
issued in connection with the Company's initial public offering on
September 27, 2013, and on behalf of all investors, who purchased
or otherwise acquired the Company's common stock between September
27, 2013, and August 4, 2014, inclusive.
Enzymotec, a global supplier of specialty lipid- based products
and solutions, is incorporated in Israel and maintains offices in
Morristown, New Jersey. The Individual Defendants are directors
and officers of the Company.
Merrill Lynch, Jefferies, Canaccord, Wedbush, and Wells Fargo
served as underwriters to Enzymotec in connection with the
Offering.
The Plaintiff is represented by:
James E. Cecchi, Esq.
Lindsey H. Taylor, Esq.
Zachary S. Bower, Esq.
CARELLA, BYRNE, CECCHI OLSTEIN, BRODY & AGNELLO, P.C.
5 Becker Farm Road
Roseland, NJ 07068
Telephone: (973) 994-1700
Facsimile: (973) 994-1744
E-mail: jcecchi@carellabyrne.com
LTaylor@carellabyrne.com
- and -
Joseph E. White, III, Esq.
Lester R. Hooker, Esq.
SAXENA WHITE P.A.
5200 Town Center Circle, Suite 601
Boca Raton, FL 33486
Telephone: (561) 394-3399
E-mail: jwhite@saxenawhite.com
lhooker@saxenawhite.com
- and -
Richard A. Maniskas, Esq.
Katharine Ryan, Esq.
RYAN & MANISKAS, LLP
995 Old Eagle School Rd., Suite 311
Wayne, PA 19087
Telephone: (484) 588-5516
E-mail: rmaniskas@rmclasslaw.com
kryan@rmclasslaw.com
FANNIE MAE: "Patel" Suit Removed to Middle District of Florida
--------------------------------------------------------------
Defendant SunTrust Mortgage, Inc., removed the class action
lawsuit titled Patel, et al. v. Federal National Mortgage
Association ("Fannie Mae"), et al., Case No. 2014-CA-8727-O, from
the Orange County Circuit Court to the U.S. District Court for the
Middle District of Florida (Orlando). The District Court Clerk
assigned Case No. 6:14-cv-01585-ACC-GJK to the proceeding.
The lawsuit asserts claims related to consumer credit.
The Plaintiffs are represented by:
George Michael Gingo, Esq.
James E. Orth, Jr., Esq.
GINGO & ORTH
400 Orange St.
Titusville, FL 32796
Telephone: (321) 264-9624
Facsimile: (866) 311-9573
E-mail: gingo.george@gmail.com
jamesorthlaw@gmail.com
Defendant SunTrust Mortgage, Inc., is represented by:
Christian Leger, Esq.
David Stockton Hendrix, Esq.
GRAYROBINSON, PA
401 E Jackson St., Suite 2700
Tampa, FL 33602
Telephone: (407) 244-5613
Facsimile: (407) 244-5690
E-mail: christian.leger@gray-robinson.com
dhendrix@gray-robinson.com
Defendant Seterus, Inc. is represented by:
Allen Paige Pegg, Esq.
MURAI, WALD, BIONDO & MORENO, PA
1200 Ponce de Leon Blvd.
Coral Gables, FL 33134
Telephone: (305) 444-0101
Facsimile: (305) 444-0174
E-mail: apegg@mwbm.com
- and -
Jason David Sternberg, Esq.
GREENBERG TRAURIG, LLP
333 SE 2nd Ave., Suite 4400
Miami, FL 33131
Telephone: (305) 579-0596
Facsimile: (305) 961-5346
E-mail: sternbergj@gtlaw.com
FEDERAL EXPRESS: Removes "Curry" Suit to New York District Court
----------------------------------------------------------------
The lawsuit captioned Curry v. Federal Express Corporation, Case
No. 23493/2014E, was removed from the Supreme Court of the State
of New York, County of Bronx to the U.S. District Court for the
Southern District of New York. The District Court Clerk assigned
Case No. 1:14-cv-07844 to the proceeding.
In his Complaint, Vaughn Curry asserts claims for age
discrimination and retaliation.
The Plaintiff is represented by:
Brittany Weiner, Esq.
IMBESI CHRISTENSEN
450 7th Avenue, Suite 1408
New York, NY 10123
Telephone: (646) 380-9555
Facsimile: (212) 658-9177
E-mail: brittany@lawicm.com
The Defendant is represented by:
Ian F. Harris, Esq.
NEWMAN MYERS KREINES GROSS HARRIS, P.C.
40 Wall Street, 26th Floor
New York, NY 10005
Telephone: (212) 619-4350
Facsimile: (212( 619-3622
E-mail: lawfirm@nmkgh.com
FEDEX CORP: Appeals Court Reverses Rulings in Contractor Cases
--------------------------------------------------------------
FedEx Ground, a subsidiary of FedEx Corporation, (NYSE: FDX)
reports on its Aug. 27, 2014 8-K Filing with the U.S. Securities
and Exchange Commission that a decision by a three-judge panel of
the United States Court of Appeals for the Ninth Circuit reversed
previous rulings by the District Court for the Northern District
of Indiana in three class action cases involving mostly former
independent contractors for FedEx Ground. The court held that
those independent contractors operating in California from 2000-
2007 and Oregon from 1999-2009 were employees according to the
panel's interpretation of state laws. The model that the court
reviewed is no longer in use. Since 2011, FedEx Ground has only
contracted with incorporated businesses, which treat their drivers
as their employees. FedEx Ground will seek review of these
decisions, including review by the entire Ninth Circuit.
"We fundamentally disagree with these rulings, which run counter
to more than 100 state and federal findings -- including the U.S.
Court of Appeals for the D.C. Circuit -- upholding the company's
contractual relationships with thousands of independent
businesses," said FedEx Ground Senior Vice President and General
Counsel Cary Blancett. "The operating agreement on which these
rulings are based has been significantly strengthened in recent
years, and we look forward to continuing to work with service
providers across our network to provide customers the industry's
most reliable service."
In light of legal and regulatory developments in several states,
FedEx Ground, a leader in cost-effective, small-package ground
shipping, has taken a number of steps in recent years to enhance
its operating agreements with the independent businesses that
contract with the company to provide transportation services. As
the latest step in this ongoing effort, FedEx Ground will
transition to new independent service provider (ISP) agreements in
the states of California, Oregon, Washington, and Nevada.
Currently, FedEx Ground contracts with more than 550 businesses
that provide pickup and delivery service in California. Those
businesses averaged nearly $500,000 in revenue last year, with
nearly 50 of them topping $1 million or more in earnings. In
Oregon, more than 100 independent businesses provide services for
FedEx Ground. More than one-third of the businesses in these two
states are minority or female-owned.
"Small businesses are the foundation and growth engine of the U.S.
economy, and we are proud of our long-standing contractual
relationship with these service providers -- each of which agrees
to treat their personnel as employees and to comply with all
applicable federal and state laws," said FedEx Ground Vice
President of Contractor Relations Sean O'Connor. "We remain
committed to maintaining a business model that has been proven
successful for our customers, service providers, and shareowners."
About FedEx Ground's Independent Business Network
FedEx Ground contracts for transportation, pickup and delivery
services with more than 8,200 service providers in the United
States and Canada whose operations employ more than 32,500 people
as drivers, managers, helpers and staff. Those businesses generate
more than $4 billion a year in revenue and average nearly $450,000
in annual revenue per business.
About FedEx Ground
FedEx Ground, a part of FedEx Corp. (NYSE: FDX), is a leader in
cost-effective, small-package ground shipping, offering dependable
service to businesses and residential customers throughout the
U.S. and Canada. FedEx Ground is faster to more locations than its
primary competitor and includes FedEx Home Delivery for
residential customers and FedEx SmartPost specializing in the
delivery of low-weight packages from businesses to residential
customers through a partnership with the U.S. Postal Service(R).
About FedEx Corp.
FedEx Corp. (NYSE: FDX) -- http://www.fedex.com/-- provides
customers and businesses worldwide with a broad portfolio of
transportation, e-commerce and business services. With annual
revenues of $46 billion, the company offers integrated business
applications through operating companies competing collectively
and managed collaboratively, under the respected FedEx brand.
Consistently ranked among the world's most admired and trusted
employers, FedEx inspires its more than 300,000 team members to
remain "absolutely, positively" focused on safety, the highest
ethical and professional standards and the needs of their
customers and communities.
FLOWERS HOSPITAL: Must Face Class Action Over Patient Data Theft
----------------------------------------------------------------
Erica Teichert and Lance Duroni, writing for Law360, report that
an Alabama federal judge on Sept. 26 refused to toss a putative
class action against Flowers Hospital over an employee's theft of
sensitive patient information, giving the plaintiffs an
opportunity to amend their claims.
In a short order to the parties, U.S. District Judge W. Keith
Watkins told the five named plaintiffs in the suit against the
Alabama hospital to file a second amended complaint with the court
over their allegations that an unidentified third party used their
Social Security numbers to file phony tax returns.
In July, Flowers Hospital urged Judge Watkins to dismiss the case
entirely, as the plaintiffs failed to link the crime to a
financial loss. Although the plaintiffs claimed the data breach
allowed identity thieves to file false tax returns in their names,
the hospital said they hadn't shown that they have been denied
their tax refunds or have incurred unreimbursed fees or expenses
from the alleged fraud, according to the denied motion.
Judge Watkins didn't expand on his reasoning for allowing the
plaintiffs to amend their complaint, but noted that Flowers
Hospital's motion to dismiss would not carry over to the updated
filing.
"Any motion to dismiss filed in response to plaintiffs' amended
complaint, and any response in opposition thereto, shall fully set
forth any arguments in support of or in opposition to such motion,
and shall not simply renew or incorporate arguments made in
previous motions and responses thereto," the judge wrote.
Flowers Hospital -- located in Dohan, Alabama -- discovered in
February that an employee, Kamarian D. Millender, had stolen a
trove of patient data, including names, addresses, Social Security
numbers and health insurance information. Mr. Millender has since
been arrested and charged with trafficking in stolen identities,
and the hospital has agreed to provide affected patients with free
credit monitoring.
The plaintiffs, led by Bradley S. Smith, lodged their complaint in
May, claiming the hospital "flagrantly disregarded" their privacy
rights by failing to safeguard their personal information. The
suit alleges that the hospital's failures violated the Fair Credit
Reporting Act and subjected them to increased risk of identity
theft and medical fraud.
However, citing the U.S. Supreme Court's 2013 decision in Clapper
v. Amnesty International USA, the hospital said on Sept. 22 that
the increased likelihood of identity theft in the future was not
enough to confer standing on the plaintiffs.
In addition to its standing challenge, the hospital argued that
several of the plaintiffs' claims should be dismissed for
independent reasons.
For example, the plaintiffs contend that Flowers Hospital was
negligent as a matter of law because it violated the Health
Insurance Portability and Privacy Act and Alabama law. But the
hospital pointed out on Sept. 22 that Alabama is one of the few
states in the U.S. that doesn't have a data breach notification
law or similar statute, questioning which state statute the
plaintiffs were referring to.
The hospital also said it "vehemently denies" that it violated
HIPPA, but added that such a violation wouldn't amount to
"negligence per se" anyway.
Flowers Hospital is represented by Richard E. Smith --
resmith@csattorneys.com -- Jonathan W. Macklem --
jwmacklem@csattorneys.com -- and J. Paul Zimmerman --
jpz@csattorneys.com -- of Christian & Small LLP.
The plaintiffs are represented by M. Adam Jones and Jordan S.
Davis of M. Adam Jones & Associates LLC and James M. Terrell of
McCallum Methvin & Terrell PC.
The case is Smith et al. v. Triad of Alabama LLC d/b/a Flowers
Hospital, case number 1:14-cv-00324, in the U.S. District Court
for the Middle District of Alabama.
FUMIZER LLC: Faces Class Action Over False E-Cigarette Claims
-------------------------------------------------------------
According to article posted at Troutman Sanders' Tobacco Law Blog,
a California consumer has filed a class action lawsuit against
Fumizer, LLC alleging the company made false claims that their
e-cigarettes can aid smokers in quitting cigarettes, while
neglecting to inform consumers of other alleged health risks.
The Plaintiff, Joseph Sheppard, is a California resident and
electronic cigarette user. He alleges that he bought a Fumizer
brand e-cigarette under the assumption that "Fumizer's products
did not carry danger or risk like traditional cigarettes do and
was safe to use." According to the suit, Fumizer's marketing
materials claimed its product is "healthy," ignoring studies
showing that e-cigarettes still contain some of the carcinogens
and toxins in tobacco cigarettes as well as other harmful
chemicals.
"There is widespread agreement in the scientific community that
further research is necessary before the full negative effects of
electronic cigarette use on users' health can be known and that
until then, manufacturers, sellers and distributors of electronic
cigarettes should not make any representations relating to the
safety, health or benefits, if any, of electronic cigarettes," the
suit said.
Sheppard further contends that Fumizer misrepresented consumers by
claiming that Fumizer's e-cigarette manual states it can "help you
quit smoking." The complaint states that "these representations
are contradictory and hypocritical because [the packaging] asserts
Fumizer e-cigarettes are 'neither intended nor marked as a quit
smoking aid.' As a result, consumers were led to believing that
"Fumizer E-Cigarettes can 'help you quit smoking.'"
The complaint additionally attacks claims allegedly made by
Fumizer that its devices could be used anywhere. Numerous cities
in California have banned e-cigarettes in public places, according
to the suit.
The suit comes just weeks after the Utah Department of Commerce
announced an enforcement action against three e-cigarette
companies for alleged violations of state consumer protection
laws. The Utah action pertains to advertising that the products
could be "smoked anywhere" in alleged violation of the State
Indoor Clean Air Act. Other claims by the Utah Department of
Commerce pertain to advertising that the products were healthier
alternatives to cigarettes and could reduce health risks. It
appears that one of the companies has settled the charges, with
charges pending against the other two.
Sheppard's complaint seeks unspecified damages for violations of
California's Consumer Legal Remedies Act, unfair competition,
deceptive advertising and breach of express warranty. The case is
Joseph Sheppard v. Fumizer LLC, case number BC558408, in the
Superior Court of California, County of Los Angeles.
GOLDMAN SACHS: $197-Mil. Legal Fees Sought in LBO Class Action
--------------------------------------------------------------
Jan Wolfe, writing for The Litigation Daily, reports that Scott &
Scott, Robins, Kaplan, Miller & Ciresi and Robbins Geller Rudman &
Dowd didn't end up getting the billions of dollars in damages they
were seeking in a class action alleging that private equity firms
fixed the prices of leveraged buyouts. But you wouldn't know it
from the bold attorney fee request they made on Sept. 26.
In an exhibit backing settlement motions now pending before U.S.
District Judge William Young in Boston, lawyers for the
shareholder plaintiffs said they're seeking $197 million in legal
fees in the case. That represents a 33 percent cut of the $590.5
million in combined settlements they wrested from defendants,
including Goldman Sachs Group Inc. and Blackstone Group. The
plaintiffs firms will also seek up to $15 million of the
settlement fund to cover court costs.
If granted, the fee request would be on the large side. In a
frequently cited 2010 study, Villanova University School of Law
professor Brian Fitzpatrick found that plaintiffs counsel get an
average cut of 15 percent in class action settlements, with mean
and median at around 25 percent.
The plaintiffs firms haven't yet filed a brief justifying the
request. When they do, they're likely to point out what a slog
the case has been. They brought the suit in 2007, about a year
after the U.S. Department of Justice began investigating whether
PE firms conspired to rig the prices they paid to acquire
companies during a buyout boom (the agency later dropped the
investigation). The settlements began piling up this past summer,
a few months before a scheduled trial date.
The lawyers may also argue that the fees are justified by the
sheer magnitude of their undertaking. The plaintiffs firms
initially alleged antitrust violations in connection with 27
corporate takeovers orchestrated by nearly a dozen private equity
firms, including the leveraged buyouts of Michaels Stores Inc. and
Sunguard Data Systems. Last year a judge limited the case to
claims relating to eight LBOs.
The plaintiffs ultimately reached settlements from seven
defendants: Bain Capital Partners LLC, Goldman Sachs, the
Blackstone Group, Kohlberg Kravis Roberts & Co., Silver Lake
Partners, TPG Capital and The Carlyle Group. The first defendants
to settle were Goldman Sachs and Bain, which agreed in June to pay
$67 million and $54 million, respectively. Silver Lake followed
suit in July, inking a $29.5 million deal. KKR, Blackstone and
TPG agreed in August to pay a combined $325 million. Carlyle
closed the door on the litigation with a Sept. 5 deal valued at
$115 million.
Plaintiffs counsel K. Craig Wildfang of Robins Kaplan and
Christopher Burke -- cburke@scott-scott.com -- of Scott & Scott
didn't return calls seeking comment.
The firms playing defense in the case included Simpson Thacher &
Bartlett (for KKR and Blackstone), Latham & Watkins (for Carlyle),
Jones Day (for Bain), Kirkland & Ellis (also for Bain) and Arnold
& Porter (for TPG).
GOOGLE INC: Android Users Voluntarily Dismiss Privacy Class Suit
----------------------------------------------------------------
Kira Lerner and Juan Carlos Rodriguez, writing for Law360, report
that a group of Android users have dropped their putative class
action accusing Google Inc. of collecting and sharing user data
through its Android mobile operating system without consent,
according to an order signed by a California federal judge
Sept. 26 that said no money has been exchanged for the dismissal.
Without offering further information, a group of the plaintiffs
stipulated the dismissal of their claims on Sept. 25 and U.S.
District Judge Jeffrey White signed off on the stipulation on
Sept. 26, just more than six months after he trimmed some claims
from the MDL. The plaintiffs were to produce discovery on their
claim that the mobile apps in question diminished their devices'
battery life at the time of the dismissal.
"All remaining constituent actions, along with this consolidated
multidistrict litigation action, are dismissed with prejudice with
each party bearing their own costs," Judge White stated in the
dismissal.
The MDL consists of eight separate suits that were consolidated
before Judge White. In March, he dismissed for a second time the
plaintiffs' claims that Google had violated the Computer Fraud and
Abuse Act by collecting users' data from third-party mobile apps
without their permission.
According to the judge, the plaintiffs' second amended complaint
still failed to show a damage or loss of at least $5,000 in value.
The plaintiffs had also alleged that they had paid for their data
plans, and that Google had "used or allowed the use of a finite
amount of" their data plans, but the judge said none of the named
plaintiffs alleged that they incurred any overage charges. He
said they only alleged that they were potentially exposed to
overage charges, and found that those losses would also fail to
meet the CFAA threshold.
The judge also tossed the plaintiffs' claim that Google had
violated the "unlawful" prong of California's Unfair Competition
Law, which prohibits unlawful practices.
The suit dates back to 2011 when the plaintiffs originally filed
the suit alleging that Google worked with phone application
developers, including Pandora Media Inc., to send Android users'
private information to third-party advertisers without notifying
consumers or obtaining their consent.
In August, Google argued in a case management order that the
plaintiffs lack standing to allege their theory of harm.
Google is represented by David H. Kramer -- dkramer@wsgr.com --
Michael H. Rubin -- mrubin@wsgr.com -- Evan M. W. Stern and Brian
M. Willen -- bwillen@wsgr.com -- of Wilson Sonsini Goodrich &
Rosati PC.
The plaintiffs are represented by William Audet and Jonas P. Mann
of Audet & Partners LLP and Robert K. Shelquist --
rkshelquist@locklaw.com -- of Lockridge Grindal Nauen PLLP, among
others.
The case is In re: Google Android Consumer Privacy Litigation,
number 3:11-md-02264, in the U.S. District Court for the Northern
District of California.
GREENVILLE COUNTY, SC: Faces Suit Over Violation of Civil Rights
----------------------------------------------------------------
CFRE LLC and Sherry T. Ray, individually and on behalf of others
similarly situated v. Debbie H. Adkins, individually and in her
official capacity as Greenville County Assessor; Real Property
Services; Jill Kintigh, in her official capacity as Greenville
County Treasurer; Joseph Kernell, in his official capacity as
Greenville County Administrator; and John/Jane Doe, individually
and in his/her/their official capacities, Case No. 8:14-cv-03825-
TMC (D.S.C., September 30, 2014) alleges violation of Civil
Rights.
The Plaintiffs are represented by:
James L Goldsmith, Jr., Esq.
GOLDSMITH LAW FIRM
PO Box 14186
Greenville, SC 29610
Telephone: (864) 232-9911
E-mail: skipgold@bellsouth.net
- and -
John William Ray, Esq.
J. WILLIAM RAY LAW OFFICE
700 E North Street
Greenville, SC 29604
Telephone: (864) 313-5332
Facsimile: (888) 633-1283
E-mail: jr@att.net
HAIN CELESTIAL: Denied Summary Judgment in Calif. Labeling Suit
---------------------------------------------------------------
The United States District Court for the Northern District of
California denied a motion for summary judgment filed by The Hain
Celestial Group, Inc. in a labeling suit against it, according to
the company's Aug. 27, 2014, Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended June
30, 2014.
On May 11, 2011, Rosminah Brown, on behalf of herself and all
other similarly situated individuals, as well as a non-profit
organization, filed a putative class action in the Superior Court
of California, Alameda County against the Company. The complaint
alleged that the labels of certain Avalon Organics brand and JASON
brand personal care products used prior to the Company's
implementation of ANSI/NSF-305 certification in mid-2011 violated
certain California statutes. Defendants removed the case to the
United States District Court for the Northern District of
California. The action was consolidated with a subsequently-filed
putative class action containing substantially identical
allegations concerning only the JASON brand personal care
products. The consolidated actions seek an award for damages,
injunctive relief, costs, expenses and attorneys' fees.
These consolidated lawsuits are currently at the discovery phase.
The Company filed a motion for summary judgment, which was heard
on February 6, 2014. On February 10, 2014, the court denied the
Company's motion for summary judgment.
HENKEL CORP: Court Certifies Class in Davidson's ERISA Suit
-----------------------------------------------------------
District Judge Gershwin A. Drain granted a motion for class
certification in the case captioned JOHN B. DAVIDSON, Plaintiff,
v. HENKEL CORPORATION, HENKEL OF AMERICA. INC., et al.,
Defendants, CASE NO. 12-CV-14103, (E.D. Mich.).
The proposed class is defined as: [A]ll persons who retired from
Henkel with vested nonqualified retirement benefits (or their
surviving spouses) who were subject to Defendants' Error in
failing to timely and correctly determine [Federal Income
Contributions Act] FICA taxes and apply the Special Timing and
Non-duplication Rules at the time of retirement to vested benefits
and whose benefits were reduced by the "correction" of the error
imposed by Henkel.
The Plaintiff have sought certification of all those affected by
Defendants' alleged error who participated in nonqualified
retirement plans and who retired before January 1, 2007.
"This Court certifies the proposed class with respect to both
liability and damages on both Counts; appoints Plaintiff John
Davidson as the Class Representative; and appoints The Miller Law
Firm P.C as Class Counsel," wrote Judge Drain in his September 29,
2014 opinion and order, a copy of which is available at
http://is.gd/jfV7fNfrom Leagle.com.
Committee as Administrator of the Henkel Corporation Deferred
Compensation and Supplemental Retirement Plan, Defendant,
represented by Amanda A. Sonneborn -- asonneborn@seyfarth.com --
Seyfarth Shaw LLP, Hans J. Massaquoi -- hmassaquoi@lewismunday.com
-- Lewis & Munday & Ian H. Morrison -- imorrison@seyfarth.com --
Seyfarth Shaw.
HERBALIFE LTD: Has Until Oct. 20 to Respond to Amended Suit
-----------------------------------------------------------
Natural Products Insider reports that Herbalife Ltd., the multi-
level marketer (MLM) of nutritional supplements and weight-loss
shakes, could be close to settling a class-action lawsuit filed by
former distributors, according to court papers filed in August.
Herbalife and the plaintiffs "have tentatively agreed on the
principal terms of a settlement," lawyers for both parties told a
California federal judge on Aug. 15.
"The parties believe they need additional time to complete the
mediation and settlement process and, if appropriate, file a joint
motion for preliminary approval of a settlement," the lawyers said
in a joint declaration.
At the parties' request, U.S. District Judge Beverly O'Connell
extended some deadlines in the case so the litigants could work on
a settlement. Herbalife has until Oct. 20 to respond to the
amended lawsuit, while plaintiffs have until Oct. 27 to file a
motion for class certification. The court has set Dec. 8 as the
deadline for a hearing on a motion for class certification.
Lawyers told the court a settlement meeting was scheduled for
Aug. 27 to continue the negotiations. For eight months, Herbalife
and the plaintiffs have engaged in roughly 75 hours of mediation
and settlement talks, according to the court papers.
Joseph Kroetsch -- jkroetsch@bsfllp.com -- a Boies, Schiller &
Flexner LLP lawyer representing Herbalife, declined to comment on
the scheduled meeting and whether the parties have moved closer to
a settlement. Jason Hardin -- jhardin@fabianlaw.com -- a Fabian &
Clendenin attorney representing the plaintiffs, did not respond to
an emailed request for comment.
Over the summer, Herbalife stipulated to the filing of an amended
complaint that added four former Herbalife distributors as
plaintiffs, provided the company could move to dismiss the lawsuit
or otherwise respond to it. The former distributors alleged
suffering losses after joining the company.
Dana Bostick, the original plaintiff and a former Herbalife
distributor, accused the company of running an unlawful pyramid
scheme, an allegation state and federal authorities including the
FTC are investigating.
Herbalife denied the pyramid scheme allegations, which have been
made repeatedly by billionaire Bill Ackman of the hedge fund
Pershing Square Capital Management. Mr. Ackman has bet against
Herbalife and stands to profit handsomely if its stock tanks.
Shares of Herbalife (HLF: NYSE) closed on Sept. 26 at $43.80, down
from $78.65 at the beginning of January.
The New York Post first reported on the settlement talks earlier
in August. Sources told the newspaper Herbalife appears willing
to accept a class-wide settlement that would cover roughly 1.5
million people.
Without a settlement, Herbalife faces the risk that the court
would certify a large class of former distributors, increasing the
company's exposure. On the other hand, denial of class
certification would limit the plaintiffs' potential recovery to
claims brought by the five distributors.
As of June 30, the company sold its products in 91 countries
through a network of 3.9 million independent members, formerly
known as distributors.
In April, a separate lawsuit was filed against Herbalife by a
shareholder, Abdul Awad. The complaint claimed Herbalife made
false and misleading statements and/or failed to disclose the
company is a pyramid scheme and inappropriately pressured its
members to buy more products to resell as a distributor, according
to documents filed in the U.S. District Court for the Central
District of California.
Herbalife said the lawsuit lacks merit, and the company intends to
vigorously defend itself.
"These unfounded claims, styled as a securities suit, are no more
than a recitation of ill-informed allegations about the company's
business model previously made by a hedge fund manager
orchestrating a campaign against our company in support of his
$1-billion reckless bet," Mr. Cacchioli said in April. "As we
have stated repeatedly, we are confident in our products and in
our compliance with all applicable laws."
HIKO ENERGY: Sued for Deceiving Customers by Increasing Rates
-------------------------------------------------------------
Michael Kantor, on behalf of himself and all others similarly
situated v. Hiko Energy, LLC, Case No. 2:14-cv-05585-TJS (E.D.
Pa., September 29, 2014) arises from an alleged fraudulent and
deceptive scheme perpetrated by Hiko.
According to the complaint, Hiko promises customers competitive
market-based rates and savings on their monthly energy bills if
they switch from their local utilities or other energy suppliers
to Hiko. However, these representations are a bait-and-switch
trap because within a few billing cycles, the Defendant routinely
increases its customers' rates well above the market, Mr. Kantor
alleges.
Hiko Energy, LLC, a New York limited liability company, is
licensed as an electricity supplier in the Commonwealth of
Pennsylvania.
The Plaintiff is represented by:
Richard M. Golomb, Esq.
Kenneth J. Grunfeld, Esq.
Steven D. Resnick, Esq.
GOLOMB & HONIK
1515 Market St., Suite 1100
Philadelphia, PA 19107
Telephone: (215) 985-9177
Facsimile: (215) 985-4169
E-mail: rgolomb@golombhonik.com
kgrunfeld@golombhonik.com
sresnick@golombhonik.com
HOME DEPOT: Faces "Sound" Class Suit in Georgia Over Data Breach
----------------------------------------------------------------
Sound Community Bank, on behalf of itself and all others similarly
situated v. The Home Depot, Inc., Case No. 1:14-cv-03148-ODE (N.D.
Ga., September 30, 2014) is brought on behalf of banks, credit
unions and other financial institutions that suffered injury as a
result of an alleged massive security breach, extending from April
2014 until mid-September 2014 that compromised the sensitive
financial data of at least 56 million Home Depot customers.
The Plaintiff is a state-chartered commercial bank headquartered
in Seattle, Washington. The Bank provides banking services for
both individual and business customers throughout the state of
Washington. The Plaintiff's customers had their personal and
financial information stolen as a result of the Home Depot Data
Breach.
The Home Depot, Inc. is a Delaware corporation with its principal
place of business located in Atlanta, Georgia. Home Depot
operates a chain of retail stores that sell a wide variety of
merchandise, including tools, home goods, and construction
supplies. Home Depot operates over 2,200 stores in the United
States.
The Plaintiff is represented by:
Thomas A. Withers, Esq.
GILLEN WITHERS & LAKE, LLC
8 East Liberty Street
Savannah, GA 31412
Telephone: (912) 447-8400
Facsimile: (912) 233-6584
E-mail: twithers@gwllawfirm.com
- and -
Hank Bates, Esq.
Allen Carney, Esq.
David Slade, Esq.
CARNEY BATES & PULLIAM, PLLC
11311 Arcade Drive
Little Rock, AR 72212
Telephone: (501) 312-8500
Facsimile: (501) 312-8505
E-mail: hbates@cbplaw.com
acarney@cbplaw.com
dslade@cbplaw.com
- and -
Jeffrey D. Boyd, Esq.
Deborah M. Nelson, Esq.
NELSON BOYD, PLLC
411 University Street, Suite 1200
Seattle, WA 98101
Telephone: (206) 971-7601
E-mail: boyd@nelsonboydlaw.com
nelson@nelsonboydlaw.com
HUMANADENTAL INSURANCE: Loses Reconsideration Bid in Brodsky Case
-----------------------------------------------------------------
Lawrense S. Brodsky filed an amended class action complaint
against HumanaDental Insurance Company (HDIC) that included three
counts: violation of the Telephone Consumer Protection Act (TCPA),
47 U.S.C. Section 227 (Count I); common law conversion (Count II);
and violation of the Illinois Consumer Fraud and Deceptive
Practices Act (ICFA), 815 ILCS 505/2 (Count III). HDIC moved for
summary judgment on all three counts. On June 12, 2014, the Court
granted summary judgment in favor of HDIC as to Counts II and III
but denied its motion as to Count I. HDIC has filed two motions in
response to the Court's order -- a motion for reconsideration, and
a motion to certify the issues for interlocutory appeal pursuant
to 28 U.S.C. Section 1292(b).
In a memorandum opinion and order dated September 29, 2014, a copy
of which is available at http://is.gd/SmvD0lfrom Leagle.com,
District Judge Thomas M. Durkin denied both motions.
The case is LAWRENCE S. BRODSKY, individually and as the
representative of a class of similarly-situated persons,
Plaintiff, v. HUMANADENTAL INSURANCE COMPANY d/b/a HUMANA
SPECIALTY BENEFITS, Defendant, NO. 10 C 3233, (N.D. Ill.).
HumanaDental Insurance Company, Defendant, represented by William
A. Chittenden, III -- wchittenden@cmn-law.com -- Chittenden,
Murday & Novotny, LLC, David Joseph Novotny -- dnovotny@cmn-
law.com -- Chittenden, Murday & Novotny, LLC, Joseph R. Jeffery --
jjeffery@cmn-law.com -- Chittenden, Murday & Novotny, LLC &
Vittorio Fiore Terrizzi -- vterrizzi@cmn-law.com -- Chittenden,
Murday & Novotny.
JIMMY JOHN'S: Rosen Law Firm Initiates Class Action Investigation
-----------------------------------------------------------------
The Rosen Law Firm, P.A. on Sept. 27 disclosed that it has
initiated a class action lawsuit investigation regarding a
potential credit card breach at Jimmy John's -- a national food
chain.
According to recent news reports, Jimmy John's is investigating a
computer security breach that may have resulted in stolen credit
card and debit card information during the time period between
June 16, 2014 and September 5, 2014. The listing of the affected
stores may be found here:
http://www.rosenlegal.com/newsroom-72.html
If you made credit card purchases at the affected stores or had
unauthorized charges appear on your card after recently using your
credit card or debit card at a Jimmy John's location, and would
like to participate in a class action lawsuit or discuss your
rights at no cost to you, please contact Phillip Kim, Esq. or
Christopher Hinton, Esq. of The Rosen Law Firm toll free at 866-
767-3653 or via e-mail at pkim@rosenlegal.com or
chinton@rosenlegal.com
The Rosen Law Firm focuses its practice on complex class actions
around the country.
JOHN B. SANFILIPPO: Ill. Labor Suit Settlement Process Continues
----------------------------------------------------------------
The settlement process for the labor suit Cardenas et al. v John
B. Sanfilippo & Son, Inc. continues, according to the company's
Aug. 27, 2014, Form 10-K filing with the U.S. Securities and
Exchange Commission for the fiscal year ended June 26, 2014.
In fiscal 2010, a class action wage and hour lawsuit was filed
against the company in the U.S. District Court for the Northern
District of Illinois (the "District Court") under the Illinois
Minimum Wage Law ("IMWL") and the Fair Labor Standards Act
("FLSA"). The plaintiffs claimed damages under the IMWL in an
amount equal to all unpaid back pay alleged to be owed to the
plaintiffs, prejudgment interest on the back pay, punitive
damages, attorneys' fees and costs, and an injunction precluding
the Company from violating the IMWL. The plaintiffs additionally
claimed damages under the FLSA in an amount equal to all back pay
alleged to be owed to the plaintiffs, prejudgment interest on the
back pay, liquidated damages equal to the amount of unpaid back
wages, and attorneys' fees and costs. In fiscal 2011, the
plaintiffs filed a second amended complaint in which they alleged
that the Company maintained and maintains a practice regarding the
rounding of employees' time entries which violates the IMWL and
the FLSA.
Following mediation during fiscal 2011 in order to cover an
expanded scope of wage and hour claims, plaintiffs and facilities,
the company agreed in principle to a $2,600 settlement (the
"Settlement Agreement"). In the fourth quarter of fiscal 2011, the
Settlement Agreement was finalized and preliminarily approved by
the District Court which included a provision allowing for a
reverter payment if all or some class members do not submit claim
forms. The company recorded an accrual of $1,950 in fiscal 2011
for the class action wage and hour lawsuit which was the company's
best estimate of the payout to class members who submitted claim
forms, net of any estimated reverter payout to the Company and
other agreed upon payouts pursuant to the settlement agreement.
During the first quarter of fiscal 2012, the Court issued a final
approval of the Settlement Agreement which did not have a material
impact on earnings during fiscal 2012. The case was closed and
formally dismissed by the Court during the fourth quarter of
fiscal 2012. Pursuant to the terms of the Settlement Agreement,
the company paid $2,600 to the claims administrator during the
first quarter of fiscal 2012 and received a reverter payment for
unclaimed settlement funds of approximately $665 during the fourth
quarter of fiscal 2012.
MAG BUILDERS: Class Seeks to Recover Unpaid Overtime and Damages
----------------------------------------------------------------
Edwin Ruiz, Juan Chacon and Marcelo Chacon, on behalf of
themselves and FLSA Collective Plaintiffs v. MAG Builders, Inc.
and Tomafz Skrovzki, Case No. 1:14-cv-07865-VEC (S.D.N.Y.,
September 29, 2014) alleges that the Plaintiffs, pursuant to the
Fair Labor Standards Act, are entitled to recover from the
Defendants: (1) unpaid overtime, (2) liquidated damages, and (3)
attorneys' fees and costs.
MAG Builders, Inc., is a New York domestic business corporation
headquartered in Liberty, New York. Tomafz Skrovzki is the
chairman or chief executive officer of MAG.
The Plaintiffs are represented by:
C.K. Lee, Esq.
Anne Seelig, Esq.
LEE LITIGATION GROUP, PLLC
30 East 39th Street, 2nd Floor
New York, NY 10016
Telephone: (212) 465-1180
Facsimile: (212) 465-1181
E-mail: cklee@leelitigation.com
anne@leelitigation.com
MCF CONSTRUCTION: Fails to Pay Proper Overtime Wages, Suit Claims
-----------------------------------------------------------------
Walter Sanchez v. M.C.F. Construction, Roofing, and Consultants,
Inc. and Kenneth J. Tafoya, Case No. 1:14-cv-23621-KMW (S.D. Fla.,
September 30, 2014) alleges that the Plaintiff earned but did not
receive from the Defendants overtime wages calculated at time and
one-half times his regular rate of pay for time spent working over
40 hours per week.
M.C.F. Construction, Roofing and Consultants, Inc., is a Florida
for-profit corporation. Kenneth J. Tafoya is the President of
M.C.F. The Company is in the business of commercial and
residential maintenance and construction in South Florida.
The Plaintiff is represented by:
Brian H. Pollock, Esq.
FAIRLAW FIRM
8603 S. Dixie Highway, Suite 408
Miami, FL 33143
Telephone: (305) 230-4884
Facsimile: (305) 230-4844
E-mail: brian@fairlawattorney.com
MEDTRONIC INC: Claims in Investors' Consolidated Suit Narrowed
--------------------------------------------------------------
WEST VIRGINIA PIPE TRADES HEALTH & WELFARE FUND, EMPLOYEES'
RETIREMENT SYSTEM OF THE STATE OF HAWAII, and UNION ASSET
MANAGEMENT HOLDING AG, Plaintiffs, v. MEDTRONIC, INC., WILLIAM A.
HAWKINS, GARY L. ELLIS, RICHARD E. KUNTZ, JULIE BEARCROFT, RICHARD
W. TREHARNE, MARTIN YAHIRO, THOMAS A. ZDEBLICK, J. KENNETH BURKUS,
and SCOTT D. BODEN, Defendants, CIVIL NO. 13-1686 (JRT/FLN), (D.
Minn.) is a consolidated class action brought by investor
plaintiffs alleging that the defendants issued false and
misleading statements and engaged in a scheme to mislead investors
regarding Medtronic's financial condition, particularly with
respect to the safety and efficacy of its product INFUSE.
Plaintiffs bring Count I for violation of Section 10(b) of the
Securities and Exchange Act of 1934 ("Exchange Act"), 15 U.S.C.
Section 78j(b) and Rule 10b-5, 17 C.F.R. Section 240.10b-5(b),
through false and misleading statements against Medtronic, several
of its executives, and a physician consultant named Dr. Thomas
Zdeblick. They also bring Count II for a scheme and course of
conduct intended to mislead in violation of Section 10(b) and Rule
10b-5 against all Defendants -- including two additional physician
consultants -- and Count III for violation of Section 20(a) of the
Exchange Act as control persons against Medtronic and the
individual Medtronic executives.
Defendants moved to dismiss all of Plaintiffs' claims.
District Judge John R. Tunheim, in a memorandum opinion and order
entered September 29, 2014, a copy of which is available at
http://is.gd/WtyX43from Leagle.com, granted the motion in part
and denied the motion in part. With respect to Count I, the Court
concluded that Plaintiffs fail to allege that Defendants made
materially false statements, with the exception of Defendant
William Hawkins' statements regarding ongoing work with the Food
and Drug Administration. With regard to Count II, the Court
concluded that Plaintiffs' claims against the physician Consultant
Defendants are barred by the statute of limitations, but will deny
the motion with respect to Count II against the Medtronic
Defendants. Because Count III for control person liability is
derivative of other violations of the Exchange Act and the Court
permits some claims to proceed against Medtronic and its officers,
the Court denied the motion with respect to Count III.
John W. Lundquist -- jlundquist@fredlaw.com -- Chelsea Brennan --
cbrennandesautels@fredlaw.com -- and Lousene Hoppe --
lhoppe@fredlaw.com -- FREDRIKSON & BYRON, PA, 200 South Sixth
Street, Suite 4000, Minneapolis, MN 55402, for defendants
Zdeblick, Burkus, and Boden.
MIDLAND FUNDING: Court Tosses Bid to Dismiss "Burch" FDCPA Suit
---------------------------------------------------------------
District Judge Sara L. Ellis denied a motion to dismiss the case
captioned TONI BURCH, individually and on behalf of all others
similarly situated, Plaintiff, v. MIDLAND FUNDING, LLC AND MIDLAND
CREDIT MANAGEMENT INC., Defendants, NO. 14-219, (N.D. Ill.).
The complaint alleges that Defendants violated the Fair Debt
Collection Practices Act, 15 U.S.C. Section 1692 et seq., by
sending Mr. Burch a letter that misrepresented the amount of the
debt Mr. Burch owed. The letter, dated January 14, 2013, indicated
that Burch owed $7,373.77, including $6.05 in accrued interest,
and noted that interest would continue to accumulate at an annual
rate of five percent. Mr. Burch contended that because Defendants
were not entitled to charge any interest, the January 14 letter
violated the FDCPA by containing false statements and constituting
an unfair practice. The Defendants contended that they were
entitled to collect interest -- both contractually and
statutorily. The Defendants filed a motion to dismiss the
complaint for failure to state a claim.
"The motion to dismiss is denied because the complaint plausibly
alleges that Defendants had no contractual right to assess five
percent annual interest and that Defendants failed to comply with
the state statute that would allow them to impose interest," ruled
Judge Ellis.
A copy of Judge Ellis' September 29, 2014 opinion and order is
available at http://is.gd/A77zT4from Leagle.com.
Midland Credit Management, Inc., Defendant, represented by David M
Schultz, Hinshaw & Culbertson, Justin M Penn, Hinshaw & Culbertson
& Jennifer W. Weller -- jweller@hinshawlaw.com -- Hinshaw &
Culbertson LLC.
MITSUBISHI FUSO: Faces Q+Food Suit Over Emission Control Systems
----------------------------------------------------------------
Q+Food LLC, on behalf of itself and all others similarly situated
v. Mitsubishi Fuso Truck of America, Inc., Case No. 1:14-cv-06046-
NLH-JS (D.N.J., September 29, 2014) asserts claims for breach of
contract.
According to Top Class Actions, the Plaintiff accuses Mitsubishi
of installing defective emissions control systems in some of its
diesel powered trucks.
The Plaintiff is represented by:
Natalie Finkelman Bennett, Esq.
James C. Shah, Esq.
SHEPHERD, FINKELMAN, MILLER & SHAH, LLP
475 White Horse Pike
Collingswood, NJ 08107-1909
Telephone: (856) 858-1770
Facsimile: (856) 858-7012
E-mail: jshah@sfmslaw.com
nfinkelman@sfmslaw.com
MONTEREY, CA: Motions to Dismiss "Hernandez" Case Tossed
--------------------------------------------------------
Magistrate Judge Paul S. Grewal denied motions to dismiss the case
captioned JESSE HERNANDEZ et al., Plaintiffs, v. COUNTY OF
MONTEREY, et al., Defendants, CASE NO. 5:13-CV-02354-PSG, (N.D.
Cal.).
The first motion before the court was a motion to dismiss filed by
Defendants County of Monterey and Monterey County Sheriff's
Office. The second motion to dismiss was filed by Defendant
California Forensic Medical Group, Incorporated.
A copy of Judge Grewal's order dated September 29, 2014, is
available at http://is.gd/MWuqrKfrom Leagle.com.
California Forensic Medical Group, Defendant, represented by Jemma
Allison Parker Saunders -- jps@bertling-clausen.com -- Bertling
and Clausen, LLP & Peter George Bertling -- pgb@bertling-
clausen.com -- Bertling and Clausen, LLP.
NET 1 UEPS: No Certification Motion Yet in N.Y. Securities Suit
---------------------------------------------------------------
No motion for class certification has yet been filed in a
securities suit against NET 1 UEPS Technologies, Inc. pending in
the United States District Court for the Southern District of New
York, according to the company's Aug. 28, 2014, Form 10-K filing
with the U.S. Securities and Exchange Commission for the fiscal
year ended June 30, 2014.
On December 24, 2013, Net1, the company's chief executive officer
and the company's chief financial officer were named as defendants
in a purported class action lawsuit filed in the United States
District Court for the Southern District of New York alleging
violations of the federal securities laws. The lawsuit alleges
that we made materially false and misleading statements regarding
the company's business and compliance policies in the company's
SEC filings and other public disclosures. The lawsuit was brought
on behalf of a purported shareholder of Net1 and all other
similarly situated shareholders who purchased the company's
securities between August 27, 2009 and November 27, 2013. The
lawsuit seeks unspecified damages. On July 23, 2014, the Court
appointed a lead plaintiff and lead counsel. No motion for class
certification has been filed.
NEW YORK, USA: Gov't Intervenes in Suit Over Inadequate Counsel
---------------------------------------------------------------
The Department of Justice on September 25, 2014, backed plaintiffs
in a class action that faults New York State for providing
inadequate counsel to poor defendants, reports Marlene Kennedy at
Courthouse News Service.
The Statement of Interest of the United States suggests a
framework by which the judge hearing the case can weigh
allegations that public defenders in the state are so overworked
and underfunded that they cannot effectively represent indigent
clients.
The Justice Department's Civil Rights Division filed the document
in Albany County Supreme Court, where the case will go to trial
Oct. 7.
Attorney General Eric Holder announced the filing on the day he
submitted his resignation as head of the Justice Department. He
will remain in office until a successor is named.
"America's indigent defense systems exist in a state of crisis,
and over 50 years after it was made, the promise of Gideon is not
being met," Holder said in a statement, referring to the U.S.
Supreme Court ruling in Gideon v. Wainwright.
The Sixth Amendment also guarantees the right to counsel, Holder
said.
The New York Civil Liberties Union and the New York City law firm
Schulte, Roth & Zabel filed the class-action in 2007, claiming
that inadequate funding, resources and oversight of the public
defense system threatened to deprive 20 named plaintiffs and the
class they represent of effective counsel in criminal proceedings.
According to the NYCLU, lead plaintiff Kimberly Hurrell-Harring, a
mother of two in Rochester, was sentenced to four months in jail
for a felony -- though she had committed a misdemeanor -- because
of the inadequacy of her public defense. She lost her job and
home as a result.
The complaint cited five counties as emblematic of New York's
"broken" public defense system, but one, Ontario County, was
dropped earlier this year after it set up a Public Defender's
Office. The four counties still in the class action are Onondaga,
Schuyler, Suffolk and Washington.
New York counties have been responsible for providing defense
services for the poor since 1965.
On September 25, 2014, the NYCLU said the Justice Department's
statement of interest underscored the importance of the class
action.
"The Department of Justice's statement sends a strong signal in
New York and across the nation that broken public defense systems
compromise the quality of justice in America and should not be
tolerated," NYCLU lead counsel Corey Stoughton said in a
statement.
In the document, the Justice Department said it was not taking a
stand on the merits of the lawsuit. The purpose of the statement
of interest is to provide the court with a structure with which to
assess the claims of constructive denial of counsel.
The document says constructive denial can occur in two "often
linked" circumstances. The first is when assigned counsel faces
"structural limitations," such as "severe lack of resources,
unreasonably high workloads, or critical understaffing of public
defender offices."
The second is when the "traditional markers of representation,"
such as timely meetings with clients, conducting discovery and
calling expert witnesses, are absent or "significantly
compromised."
"Under either or both of these circumstances, a court may find
that the appointment of counsel is superficial and, in effect, a
form of non-representation that violates the Sixth Amendment
guarantee of counsel," the 14-page document states.
The public defender system nationwide is chronically underfunded,
according to the document. A footnote points to reports from the
U.S. Bureau of Justice Statistics comparing 2007 data that show
$5.8 billion budgeted for prosecutors and $2.3 billion budgeted
for public defenders across the country.
Constructive denial can occur even when public defenders' offices
are not systematically underfunded "if the attorneys providing
defender services are unable to fulfill their basic obligations to
their clients," the document states.
That might happen when a defense attorney has insufficient time to
prepare a case -- a traditional marker of representation.
"These markers may be considered in conjunction with the
structural limitations placed on counsel to determine whether the
counties 'constructively' denied counsel to indigent defendants
during criminal proceedings," the Justice Department says.
"When assessing the merits of the case, this court may use this
framework to assess whether a systemic 'constructive' denial of
counsel in violation of Gideon and the Sixth Amendment occurred
from either factor, standing alone or in conjunction."
If the court finds constitutional violations, it has broad
injunctive authority to force a remedy, according to the Justice
Department.
The NYCLU said the statement of interest is the first time the
Justice Department has weighed in on a public defense complaint in
state court.
Last summer, Holder filed a statement in Seattle Federal Court in
a class action brought by the American Civil Liberties Union of
Washington that alleged two suburban cities provided inadequate
representation for indigent misdemeanor defendants.
In December, the judge found for the plaintiffs and ordered the
cities to hire independent monitors to oversee their public
defender systems. The New York class action was filed a year
after Judith Kaye, then chief judge of the state's high court, the
Court of Appeals, received the final report from a commission she
convened to look into defense services for the poor.
The Kaye Commission concluded that a crisis existed and
recommended a fully state-funded statewide defender system. That
has not happened, although a state Office of Indigent Legal
Services was established in 2011. The office makes grants to
counties to help them hire public defenders to meet caseload
demands.
On September 24, 2014, the office released a report assessing what
it would cost the 57 counties in upstate New York to comply with
national caseload limits. The counties spent $174.9 million in
2013 to provide required indigent services, according to the
report. But to get to the national limit of 367 new weighted
cases per attorney annually, they would have needed to spend an
additional $105.2 million last year. That mostly would have
covered the staff needed to reduce the 680 new weighted cases per
attorney handled last year, the report said.
The case is Kimberly Hurrell-Harring, et al. v. The State of New
York, et al., Case No. 8866-07, in the Supreme Court of the State
of New York, County of Albany.
NIELSEN AUDIO: Faces TCPA Class Action in California
----------------------------------------------------
Daily Research News Online reports that a suit filed in the U.S.
District Court of Northern California claims that Arbitron -- now
Nielsen Audio -- made calls and left messages for consumers,
contrary to the Telephone Consumer Protection Act (TCPA).
Nielsen completed its takeover of Arbitron exactly one year ago,
after a long wait for FTC approval. Inevitably perhaps given the
size of the two operations, the TV ratings and consumer data giant
has inherited a number of legal positions from the longtime radio
ratings leader, including cases against stations accused of using
its ratings info without paying.
The latest suit, filed in the name of Alfredo Leon Orea by
attorney Todd M. Friedman, says Orea was called a number of times,
and was left 'scripted messages' in automated / 'robotic' voices
inviting him to participate in TV and radio ratings research.
Orea's land line residential phone is on the Do Not Call list, and
the suit also refers to calls on his cell phone. The plaintiff
seeks damages and injunctive relief.
Just two weeks ago, Nielsen hired former Accenture exec Benjamin
Hayes as Chief Privacy Officer, overseeing its global privacy
program.
OSI SYSTEMS: Hearing on Motion to Junk Stock Suit Set for Nov.
--------------------------------------------------------------
The motion of OSI Systems, Inc. to dismiss an Amended Securities
Complaint is scheduled to be heard on November 3, 2014, according
to the company's Aug. 27, 2014, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended June 30,
2014.
On June 21, 2013, two of the company's subsidiaries -- Rapiscan
Systems, Inc. and Rapiscan Government Services, Inc. -- entered
into a 30-month Administrative Agreement with the U.S. Department
of Homeland Security. The Administrative Agreement resolved a
Notice of Proposed Debarment that was received from the U.S.
Department of Homeland Security on May 20, 2013. The notice
related to the Rapiscan Secure 1000SP Advanced Imaging Technology
system and associated Automated Target Recognition software, and
whether hardware defects existed and, if so, whether such defects
were properly communicated.
On December 12, 2013, a putative class action complaint was filed
against the Company and certain of its officers in the United
States District Court for the Central District of California (the
"Court") captioned Roberti v. OSI Systems, Inc., et al., Case No.
2:13-cv-09174-MWF-VBK (the "Securities Class Action"). The Amended
Complaint, filed on May 20, 2014, alleges that the Company and the
individual defendants violated the Securities Exchange Act of 1934
by misrepresenting or failing to disclose facts concerning the
status of Rapiscan's efforts to develop Automated Threat
Recognition software and the alleged use of unapproved parts in
its baggage scanning systems in violation of its contract with the
TSA. The Amended Complaint also asserts that the individual
defendants allegedly sold stock based on material non-public
information. Plaintiff demands a jury trial and seeks class
certification, unspecified damages, an award of pre-judgment and
post-judgment interest, attorneys' and experts' fees, costs, and
other unspecified relief. On July 18, 2014, the Company filed a
Motion to Dismiss the Amended Complaint. The Motion is scheduled
to be heard on November 3, 2014.
PARTSSOURCE INC: Removes "Gembarski" Suit to Ohio District Court
----------------------------------------------------------------
The class action lawsuit entitled Gembarski v. PartsSource, Inc.,
Case No. 2013-CV-00001, was removed from the Portage County Court
of Common Pleas to the U.S. District Court for the Northern
District of Ohio (Akron). The District Court Clerk assigned Case
No. 5:14-cv-02167-SL to the proceeding.
The Plaintiff is represented by:
Anthony J. Trzaska, Esq.
DUBYAK CONNICK THOMPSON & BLOOM
3401 Enterprise Parkway, Suite 205
Cleveland, OH 44122
Telephone: (216) 364-0500
Facsimile: (216) 364-0505
E-mail: atrzaska@dctblaw.com
- and -
Thomas J. Connick, Esq.
25201 Chagrin Blvd., Suite 375
Beachwood, OH 44122
Telephone: (216) 364-0500
Facsimile: (216) 364-0505
E-mail: tconnick@connicklawllc.com
The Defendant is represented by:
Helena Oroz, Esq.
Stephen S. Zashin, Esq.
ZASHIN & RICH-CLEVELAND
950 Main Avenue, 4th Floor
Cleveland, OH 44113
Telephone: (216) 696-4441
Facsimile: (216) 696-1618
E-mail: hot@zrlaw.com
ssz@zrlaw.com
PETSMART INC: Final Approval Hearing of "Moore" Settlement Set
--------------------------------------------------------------
A hearing on the final approval of the settlement in Moore, et al.
v. PetSmart, Inc., et al. is expected to be held in November 2014,
according to the company's Aug. 28, 2014, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
Aug. 3, 2014.
In May 2012, the company was named as a defendant in Moore, et al.
v. PetSmart, Inc., et al., a lawsuit originally filed in the
California Superior Court for the County of Alameda. PetSmart
removed the case to the United States District Court for the
Northern District of California. The complaint brings both
individual and class action claims, first alleging that PetSmart
failed to engage in the interactive process and failed to
accommodate the disabilities of four current and former named
associates. The complaint also alleges on behalf of current and
former hourly store associates that PetSmart failed to provide pay
for all hours worked, failed to properly reimburse associates for
business expenses, failed to properly calculate and pay vacation,
failed to provide suitable seating, and failed to provide timely
and uninterrupted meal and rest periods. The lawsuit seeks
compensatory damages, statutory penalties, and other relief,
including attorneys' fees, costs, and injunctive relief. In
January 2014, the parties entered a proposed settlement agreement
to resolve this matter in line with reserves that were established
for this case in the first and second quarters of 2013. The motion
for preliminary approval of the settlement was filed on January
31, 2014. In March 2014, the court heard oral arguments on the
motion for preliminary approval of the proposed settlement. In May
2014, the court approved the motion. Notices are expected to be
mailed to potential class members in August 2014. A hearing on the
final approval of the settlement is expected to be held in
November 2014.
PETSMART INC: Discovery Ongoing in Delaware "McKee" FLSA Suit
-------------------------------------------------------------
Discovery is ongoing in McKee, et al. v. PetSmart, Inc., which is
currently pending before the United States District Court for the
District of Delaware, according to the company's Aug. 28, 2014,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended Aug. 3, 2014.
In September 2012, a former associate named the company as a
defendant in McKee, et al. v. PetSmart, Inc., which is currently
pending before the United States District Court for the District
of Delaware. The case seeks to assert a Fair Labor Standards Act
collective action on behalf of PetSmart's operations managers
nationwide. The complaint alleges that PetSmart has misclassified
operations managers as exempt and as a result failed to pay them
overtime for hours worked in excess of forty hours per week. The
plaintiffs seek compensatory damages, liquidated damages, and
other relief, including attorneys' fees, costs, and injunctive
relief. The plaintiffs filed a motion for conditional
certification in September 2013, which was granted. The court
conditionally certified a collective action consisting of all
current and former operations managers employed by PetSmart at any
time in the preceding three-year period. Notices were sent to
potential class members in February 2014, and the 60-day period
within which recipients may consent to join the lawsuit closed in
April 2014. Several individuals have joined the case as party-
plaintiffs. Discovery is ongoing.
PETSMART INC: "Negrete" Case Management Conference in Nov. 2014
---------------------------------------------------------------
All deadlines in Negrete, et al. v. PetSmart, Inc. have been
stayed until the case management conference, which is currently
scheduled for November 2014, according to the company's Aug. 28,
2014, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Aug. 3, 2014.
Also in September 2012, a former groomer filed a lawsuit against
the company captioned Negrete, et al. v. PetSmart, Inc. in the
California Superior Court for the County of Shasta. The plaintiff
seeks to assert claims on behalf of current and former California
pet stylists that PetSmart failed to provide pay for all hours
worked, failed to properly reimburse associates for business
expenses, failed to provide proper wage statements, failed to
properly calculate and pay vacation, and failed to provide timely
and uninterrupted meal and rest periods. The lawsuit seeks
compensatory damages, statutory penalties, and other relief,
including attorneys' fees, costs, and injunctive relief. On June
14, 2013, we removed the case to the United States District Court
for the Eastern District of California and subsequently filed a
motion to transfer the case to the United States District Court
for the Northern District of California. On November 1, 2013, the
court deemed the Negrete and the Moore actions related and the
Negrete action was reassigned to the same judge overseeing the
Moore action. All deadlines have been stayed until the case
management conference, which is currently scheduled for November
2014.
PETSMART INC: Dismissed in "Matin" Lawsuit Over Jerky Treats
------------------------------------------------------------
Following mediation in Matin, et al. v. Nestle Purina PetCare
Company, et al., plaintiffs filed an amended complaint in May
2014, effectively dismissing the claims against PetSmart, Inc.,
according to PetSmart, Inc.'s Aug. 28, 2014, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
Aug. 3, 2014.
On December 22, 2012, a customer filed a lawsuit against the
company captioned Matin, et al. v. Nestle Purina PetCare Company,
et al. in the United States District Court for the Northern
District of California. The plaintiff claims he purchased jerky
treats containing duck or chicken imported from China that caused
injury to his pet, and he seeks to assert claims on behalf of a
nationwide class of consumers. The company tendered the claim to
Nestle Purina, and Nestle Purina defended the case on the
company's behalf. In May 2013, the case was transferred to the
Northern District of Illinois and consolidated with another case
involving the same products, Adkins, et al. v. Nestle Purina
PetCare Company, et al. Following a mediation, plaintiffs filed an
amended complaint in May 2014, effectively dismissing the claims
against PetSmart, as plaintiffs did not name PetSmart as a
defendant.
PETSMART INC: Court Declined to Certify Larger Class in "Pace"
--------------------------------------------------------------
The United States District Court for the Central District of
California declined to certify the larger proposed class of
associates in Pace v. PetSmart, Inc., according to the company's
Aug. 28, 2014, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended Aug. 3, 2014.
On February 20, 2013, a former groomer in California filed a
complaint in the Superior Court of California for the County of
Orange captioned Pace v. PetSmart, Inc. PetSmart removed the case
to the United States District Court for the Central District of
California. The plaintiff sought to certify a class of all former
PetSmart employees in California since February 20, 2010, who were
not paid all wages owed within 72 hours of their separations. The
plaintiff challenges PetSmart's use of pay cards for separation
payments and seeks waiting time penalties, attorneys' fees, and
other relief. The plaintiff also asserts claims under California's
Private Attorney General Act as well as individual claims for
wrongful termination and disability discrimination. The plaintiff
filed a motion for class certification on January 31, 2014, and a
hearing was held in March 2014. In June 2014, the court granted
the motion in part and certified a class of associates from
February 2010 to the present who elected to receive their pay
through check or direct deposit but received their final wages in
a pay card kit. The court declined to certify the larger proposed
class of associates who were purportedly paid wages more than 72
hours after their last date of employment. Notices were mailed to
potential class members in July 2014.
PREVUES PEEKABOO: Sued for Denying Equal Access to Disabled Guest
-----------------------------------------------------------------
Holly Cash v. Prevues Peekaboo Lounge; R. Michael McNally and
Linda Rae McNally, Trustees of the R. Michael McNally and Linda
Rae McNally Revocable Trust dated 6/6/1996, Case No. 2:14-cv-
02257-TLN-KJN (E.D. Cal., September 29, 2014) is a civil rights
action for discrimination against persons with physical
disabilities, including the Plaintiff, for failure to remove
architectural barriers at the Defendants' Prevues Peekaboo Lounge,
a place of public accommodation.
Holly Cash is a "physically handicapped person," who relies
primarily on a wheelchair for mobility, and on occasions, relies
on a cane or crutches.
Prevues Peekaboo Lounge, is a retail store, located in Sacramento,
California. The Individual Defendants are the owners of the real
property (land and building) where the Lounge is located.
The Plaintiff is represented by:
Thomas E. Frankovich, Esq.
THOMAS E. FRANKOVICH, A PROFESSIONAL LAW CORPORATION
4328 Redwood Hwy., Suite 300
San Rafael, CA 94903
Telephone: (415) 674-8600
Facsimile: (415) 674-9900
E-mail: tfrankovich@disabilitieslaw.com
PRICEWATERHOUSECOOPERS LLP: NY Court Reinstates Lipper Claims
-------------------------------------------------------------
In the case captioned MATTHEW SERINO, ET AL., Plaintiffs, v.
KENNETH LIPPER, Defendant-Appellant, PricewaterhouseCOOPERS LLP,
Defendant-Respondent, LIPPER & COMPANY, INC., ET AL., Defendants,
604396/02., Kenneth Lipper appeals from the judgment of the
Supreme Court, New York County entered May 10, 2013, dismissing
all of his cross claims against defendant PricewaterhouseCoopers
LLP (PwC), and from the order of the same court and justice,
entered April 25, 2013, which granted PwC's motion for summary
judgment dismissing Mr. Lipper's cross claims, and denied Mr.
Lipper's cross motion for partial summary judgment on his fraud
claim against PwC.
The Appellate Division of the Supreme Court of New York, First
Department ruled in an opinion dated September 30, 2014, a copy of
which is available at http://is.gd/90QeM8from Leagle.com, that
the judgment of the Supreme Court, New York County entered May 10,
2013, should be modified, on the law, to reinstate so much of Mr.
Lipper's cross claims for negligence/malpractice, breach of
contract and breach of fiduciary duty the recovery of gift taxes
paid as seek recovery of gift taxes paid, and otherwise affirmed,
without costs. The appeal from the order of the same court and
justice, entered April 25, 2013, should be dismissed, without
costs, as subsumed in the appeal from the judgment, the Appellate
Division added.
Orrick, Herrington & Sutcliffe LLP, New York (J. Peter Coll, Jr.
-- pcoll@orrick.com -- Steven J. Fink -- sfink@orrick.com -- and
Kristen R. Fournier -- kfournier@orrick.com -- of counsel), for
respondent.
SAFEGUARD PROPERTIES: Judge Certifies FDCPA Class Action
--------------------------------------------------------
Patrick Lunsford, writing for insideARM.com, reports that a
federal judge certified a class action that accuses a mortgage
services company of violating the FDCPA by leaving a message on a
door hanger for a consumer to call a specific number. The note
made no mention of the debt, although it was left specifically for
that purpose.
U.S. District Judge Joan Gottschall in the Northern District of
Illinois granted certification on Sept. 17 in Simpson v.
Safeguard. The main issue is that the door hanger messages did
not identify who left them or that the communication was in
connection with a debt.
The plaintiff claims that Safeguard Properties LLC left five
messages hung on the door knob of her home between Oct. 8, 2012
and Feb. 1, 2013. The property was attached to a mortgage for
which Safeguard was the servicer and that the mortgage holder
claims was delinquent (Simpson denies that she was even behind on
payments).
In addition to not properly disclosing that the communication was
in connection with a debt, Simpson claims that no validation
notice was sent after initial communication, also an FDCPA
violation.
But Safeguard contends that the FDCPA does not apply to the
company as it is not a debt collection agency. The firm's
argument states that it is hired by mortgage companies to inspect
foreclosed and abandoned homes and assist with evictions. As part
of its field agent services, it also performs "contact attempt
inspections" such as leaving door hangers asking the recipients to
call.
Judge Gottschall did not decide on the legal merits of the case,
writing "whether Safeguard violated the FDCPA . . . will
inevitably involve some individualized inquiry." But she
certified that the suit met the requirements for class
certification. It will be interesting to follow the case and see
if yet another form of communication falls under the FDCPA.
SAKS FIFTH: Removes "Malik" Suit to California District Court
-------------------------------------------------------------
The class action lawsuit titled Tova Malik v. Saks Fifth Avenue
LLC, et al., Case No. BC555134, was removed from the Superior
Court of the State of California for the County of Los Angeles to
the U.S. District Court for the Central District of California
(Los Angeles). The District Court Clerk assigned Case No. 2:14-
cv-07600 to the proceeding.
The Defendants are represented by:
Amy P. Lally, Esq.
SIDLEY AUSTIN LLP
555 West 5th Street, Suite 4000
Los Angeles, CA 90013-1010
Telephone: (213) 896-6000
Facsimile: (213) 896-6600
E-mail: alally@sidley.com
SAMSUNG TELECOM: Expert Report Blocked in "Random Shut Down" Case
-----------------------------------------------------------------
AMY ROTHBAUM, individually and on behalf of all others similarly
situated, Plaintiff, v. SAMSUNG TELECOMMUNICATIONS AMERICA, LLC,
Defendant, C.A. NO. 11-10509-MLW, (D. Mass.) is a putative class
action alleging that Samsung knowingly sold its Captivate,
Fascinate, Vibrant, and Epic 4G phones with a design defect that
causes the phones to shut down randomly (the "Random Shut Down
Defect"). Rothbaum alleges that Samsung was aware of this defect,
but continued to sell the defective phones, and its express
warranty provided an inadequate remedy because it only required
the defendant to exchange her defective phone for another
defective phone. Accordingly, Rothbaum alleges that Samsung
violated Massachusetts and Texas laws governing the implied
warranty of merchantability. Rothbaum also alleges a violation of
M.G.L. Chapter 93A. Rothbaum brings this action on behalf of a
putative class of all persons who purchased a new Samsung Phone
manufactured, distributed, or sold by Samsung from July 2010 to
present.
In a memorandum and order dated September 29, 2014, a copy of
which is available at http://is.gd/H0D1Oqfrom Leagle.com,
District Judge Mark L. Wolf allowed the defendant's motion to
preclude the expert report of Ken Thompson and the defendant's
motion for summary judgment.
"In essence, even when viewed in the light most favorable to
Rothbaum, the evidence is insufficient to permit a reasonable
factfinder to conclude that any Random Shut Down Defect caused
more than a mere inconvenience to Rothbaum, and such an
imperfection in a product does not violate the implied warranty of
merchantability," ruled Judge Wolf. "Nor does it permit a finding
that Chapter 93A has been violated. As Thompson's opinion that
100% of the Samsung Phones are defective is inadmissible under
Federal Rule of Evidence 702, and there is no other evidence to
support such a conclusion, Samsung at most failed to disclose a
potential problem and that would not constitute a violation of
Chapter 93A. Therefore, judgment will be entered for the
defendant," he added.
Samsung Telecommunications America, LLC, Defendant, represented by
Robert M. Buchanan, Jr. -- rbuchanan@choate.com -- Choate, Hall &
Stewart, Brian A. Davis -- BDavis@choate.com -- Choate, Hall &
Stewart, Jared M. Barnes -- jbarnes@choate.com -- Choate, Hall &
Stewart & Margaret E. Ives -- mives@choate.com -- Choate, Hall &
Stewart LLP.
SHORES & RUARK: Accused of Not Paying Mexican Workers Proper OT
---------------------------------------------------------------
Agustin Bojorquez-Moreno, Norberto Sepulveda-Cabrera, Alejandro
Saldana-Cota, Leonardo Verdugo-Santos, and Flavio Sepulveda-
Cabrera v. Shores & Ruark Seafood Company, Inc., Urbanna Seafood
Company, Inc., and Rufus H Ruark, Jr., Case No. 3:14-cv-00670-REP
(E.D. Va., September 30, 2014) is brought to secure and vindicate
the Plaintiffs' rights under the Fair Labor Standards Act, the
Migrant and Seasonal Agricultural Worker Protection Act, and
Virginia contract law.
The Plaintiffs are migrant agricultural workers employed by the
Defendants. The Defendants offered the Plaintiffs employment as
seafood processors under the H-2B work visa program, and the
Plaintiffs accepted the offers and traveled from Mexico to
Virginia to work for the Defendants.
The Plaintiffs allege that the Defendants failed to properly pay
the Plaintiffs minimum wages as required by the FLSA.
Shores & Ruark, and Urbanna are closely held Virginia corporations
that operates and maintains its principal address in Urbanna,
Middlesex County, Virginia. Rufus H. Ruark, Jr. is the president
of Shores & Ruark and an officer of Urbanna. The Defendants
operate and maintain an oyster processing plant that sold its
products to businesses in various states outside of Virginia.
The Plaintiffs are represented by:
Erin Trodden, Esq.
Tim Freilich, Esq.
LEGAL AID JUSTICE CENTER
1000 Preston Avenue, Suite A
Charlottesville, VA 22903
Telephone: (434) 977-0553
Facsimile: (434) 977-0558
E-mail: Erin@justice4all.org
Tim@justice4all.org
- and -
James M. Knoepp, Esq.
Eunice Hyunhye Cho, Esq.
SOUTHERN POVERTY LAW CENTER
1989 College Avenue NE
Atlanta, GA 30317
Telephone: (404) 521-6700
Facsimile: (404) 221-5857
E-mail: Jim.Knoepp@splcenter.org
Eunice.Cho@splcenter.org
TEMAK MEDICAL: Violates Fair Debt Collection Act, N.J. Suit Says
----------------------------------------------------------------
Lisa Klauber, on behalf of herself and all others similarly
situated v. Temak Medical Billing and Practical Management and
John Does 1-25, Case No. 3:14-cv-06054-MAS-DEA (D.N.J.,
September 29, 2014) alleges violations of the Fair Debt Collection
Practices Act.
The Plaintiff is represented by:
Ari Hillel Marcus, Esq.
MARCUS LAW LLC
1500 Allaire Avenue, Suite 101
Ocean, NJ 07712
Telephone: (732) 660-8169
E-mail: ari@marcuslawyer.com
TRACY'S TREASURES: CMI's TCPA Case Returns to Circuit Court
-----------------------------------------------------------
The Appellate Court of Illinois, First District, Third Division
entered a ruling in the case captioned CENTRAL MUTUAL INSURANCE
COMPANY, Plaintiff-Appellee and Cross-Appellant, v. TRACY'S
TREASURES, INC., and PAUL IDLAS, Defendants-Appellants and Cross-
Appellees, NO. 1-12-3339. 2014 IL App (1st) 123339, reversing the
order of the Circuit Court of Cook County granting summary
judgment to Central based on an intervening change in the law.
The Appellate Court also affirmed the orders denying Central's
motions for summary judgment and remanded for further proceedings.
This insurance declaratory action raises issues regarding: (1)
whether coverage is available for an underlying class action
alleging claims for unsolicited faxes in violation of the federal
Telephone Consumer Protection Act (TCPA) (47 U.S.C. Section
227(b)(1) (2006)); (2) the reasonableness of a settlement in the
underlying action between the insured and the underlying
plaintiffs, which those parties stipulated would be paid from the
proceeds of the insurance policies; and (3) whether the "buyout"
of coverage under the insurance policies, which resulted from a
settlement of a prior class action against the insured, precludes
claims under the "advertising injury" coverage of these policies.
A copy of the Illinois Appellate Court's September 30, 2014
opinion is available at http://is.gd/nJrhUefrom Leagle.com.
TRINITY RIVER: Accused of Failing to Pay Overtime Under FLSA
------------------------------------------------------------
Joseph Terras, and Bobby Tyler, as individual California
residents, on behalf of themselves and all others similarly
situated v. Trinity River Lumber Company, a California
corporation; and Does 1 through 100, inclusive, Case No. 2:14-cv-
02277-MCE-CMK (E.D. Cal., September 30, 2014) accuses the
Defendants of failing to pay overtime under the Fair Labor
Standards Act, among other allegations.
Trinity River Lumber Company is a California Corporation doing
business in the County of Trinity, state of California. TRLC is a
lumber mill business that produces timbers for home center
products, and maintains a lumber mill in Weaverville, California,
and has its corporate headquarters in Weaverville, California.
The true names and capacities of the Doe Defendants are currently
unknown to the Plaintiffs.
The Plaintiffs are represented by:
Jose R. Garay, Esq.
JOSE GARAY, APLC
9861 Irvine Center Drive
Irvine, CA 92618
Telephone: (949) 208-3400
Facsimile: (949) 713-0432
E-mail: jgaray@garaylaw.com
UNITED STATES: Sued for Miscalculating VA Workers' Overtime Pay
---------------------------------------------------------------
Charles Toutant, writing for New Jersey Law Journal, reports that
a suit filed in federal court in Trenton, N.J., on behalf of
hourly employees at U.S. Department of Veterans Affairs facilities
across the country claims the government is miscalculating
overtime pay.
VA workers covered under the Fair Labor Standards Act collective
action are wrongly denied overtime pay if they put in less than 15
minutes of overtime in a week, according to the suit. In
addition, the overtime pay rate is wrongly calculated based on
workers' base hourly rate only, and fails to factor in shift
differentials paid for nights, weekends and holidays, the suit
claims.
The collective action was filed on behalf of nurses, physician
assistants and dental assistants nationwide who worked for the VA
within the past three years and were governed by the same
employment manual issued to named plaintiff Annamma Samji. That
manual is believed to be in use in VA hospitals nationwide, but
it's unclear how many people are covered by it, plaintiffs counsel
Justin Swidler of Swartz Swidler in Cherry Hill, N.J., said.
Ms. Samji, a nurse, was paid at a base rate of $42.05 per hour,
but she worked the night shift and received a shift differential
of $4.21 per hour for working between 6 p.m. and 6 a.m. She
received an additional shift differential of $10.51 per hour when
she worked on weekends. But when she received overtime pay for
time worked in excess of 40 hours per week, time-and-a-half pay
was computed using her base hourly rate, instead of the actual pay
rate, the suit claims. Instead of basing overtime pay on a
worker's base hourly rate, the VA should add up all the
compensation received in a pay period and divide by the number of
hours worked to determine a base rate for calculating overtime
pay, the suit claims.
The law is well settled on the requirement that calculation of
overtime pay under the FLSA should take into account premiums that
increase a worker's hourly rate, Mr. Swidler said.
As an example, the complaint says Ms. Samji was shortchanged at
least $5.79 for the two-week pay period ending Sept. 21, 2013.
During that period, she worked a total of 82.75 hours, receiving
her regular hourly rate of $42.05 per hour for 80 hours plus a
differential of $4.21 per hour for working on the night shift on
all hours worked. She received an additional $10.51 per hour for
16 hours worked over the weekend. Ms. Samji also received $63.08,
which is one-and-a-half times her base hourly rate, for 2.75
hours.
The VA's pay statements to Ms. Samji do not reveal which shift
differentials applied to each week in her two-week pay period, so
the exact amount that she was shortchanged cannot be determined
without discovery, the suit claims. But Mr. Swidler estimates
that for the two weeks ending Aug. 24, 2013, in which Ms. Samji
worked 82.75 hours, her check was short by $5.79, and for the two
weeks ending Sept. 21, 2013, in which she worked 82 hours, she was
shorted by $4.21.
Ms. Samji worked at the hospital in Lyons, N.J., for nearly 14
months, from Sept. 9, 2012, until Oct. 31, 2013.
An exhibit to the complaint shows a page of the employee manual
issued to Ms. Samji, which states that "overtime must be at least
15 minutes duration in a calendar day to be creditable for
overtime purposes."
Mr. Swidler called it "ironic" that a U.S. government agency
failed to comply with the federal FLSA, but said the law applies
to government agencies in the same way that it applies to private
employers. However, state wage-payment laws that are typically
raised against private-sector employers in FLSA cases do not apply
to the VA, he said.
A representative for the VA declined to comment.
VERIZON ENTERPRISE: Court Allows Arbitration in "Lenfest" Case
--------------------------------------------------------------
In the putative class action captioned BRIAN LENFEST, individually
and on behalf of all others similarly situated, Plaintiff, v.
VERIZON ENTERPRISE SOLUTIONS, LLC, Defendant, CIVIL ACTION NO. 13-
11596-NMG, (D. Mass.), Mr. Lenfest claims that Verizon violated
the Massachusetts Consumer Protection Act, M.G.L. c. 93A, and was
unjustly enriched by failing to disclose minimum monthly charges
for long distance telephone service.
District Judge Nathaniel M. Gorton, in a memorandum & order dated
September 29, 2014, a copy of which is available at
http://is.gd/vKjJrqfrom Leagle.com, granted Verizon's motion to
compel arbitration, and stayed the case during its pendency.
Verizon's motion to dismiss was denied as moot. Judge Gorton
directed the parties to submit to the Court a joint status report
with respect to the progress of the arbitration proceeding on
March 31, 2015, and every six months thereafter.
Verizon Enterprise Solutions, LLC, Defendant, represented by
William A. Worth -- wworth@PrinceLobel.com -- Prince Lobel Tye
LLP.
WALGREEN CO: Faces "Adams" Wage and Hour Suit in E.D. Wisconsin
---------------------------------------------------------------
Lori Adams, Michael Adams, William Bartelt, Andrea Broker, Jaimie
Budzinski, Alfred Crane, James Currier, Nicole Davis, William
Flahive, Angela Gunkel, Jarmar Hardy, Timothy Hollan, Troy Kaun,
Charlotte Kroupa, Juli Millikin, Luke Misiak, Lynette Naumann,
Louis Olinger, Scott Ostrowski, Sarah Pohlman, Marc Schrader,
Richard Stoddard, Chad Tenpas, John Totz, Joseph Valentine, Brad
Wanta, Shaun Whatley, Tonya Williams, Rick Wysocki, Benjamin
Zawislan, Jennifer Zawislan, Thomas Zorzin v. Walgreen Co., d/b/a
Walgreens, Case No. 2:14-cv-01208-JPS (E.D. Wis., September 30,
2014) alleges that the Plaintiffs were denied overtime wages under
the Defendant's illegal pay policies and practices.
Within the relevant statutory period, the Plaintiffs were employed
as Executive Assistant Managers by Walgreen Co. The Plaintiffs
allege that they were not paid at one and one half times the
regular rate for hours worked over 40 per week.
Each Plaintiff filed a "Consent to Join" in a collective action
that was conditionally certified and then decertified in the
United States District Court for the Western District of Arkansas,
Kunio Teramura, et al. v. Walgreen Co., 5:12-cv-5244-JLH. The
Teramura Court tolled the Plaintiffs' statute of limitations until
September 30, 2014, allowing the Plaintiffs time to file a new
lawsuit in their own state.
Walgreens is a foreign for-profit corporation registered to
conduct business in the state of Wisconsin. The Defendant is a
national retailer of "pharmacy, health and wellness solutions, and
consumer goods and services," employing over 240,000 people and
operating approximately 8,000 stores across the country.
The Plaintiffs are represented by:
Summer H. Murshid, Esq.
Larry A. Johnson, Esq.
Timothy P. Maynard, Esq.
HAWKS QUINDEL, S.C.
PO Box 442
Milwaukee, WI 53201-0442
Telephone: (414) 271-8650
Facsimile: (414) 271-8442
E-mail: smurshid@hq-law.com
ljohnson@hq-law.com
tmaynard@hq-law.com
WALGREEN CO: Faces "Moran" Suit in R.I. Over Unpaid Overtime
------------------------------------------------------------
Theresa Moran, Jeffrey Bourget, Peter Bowman, and Zachary
Forsberg-Lary v. Walgreen Co. and Walgreen Eastern Co., Inc.,
d/b/a Walgreens, Case No. 1:14-cv-00429-ML-LDA (D.R.I.,
September 30, 2014) for declaratory judgment and damages as a
result of the Defendants' alleged failure to pay the Plaintiffs'
(a) overtime compensation for the hours that they worked over 40
for each single workweek, and (b) premium pay for hours that they
worked on Sundays and holidays for their work as Executive
Assistant Managers in Rhode Island.
Walgreen Co., doing business as Walgreens, is an Illinois
corporation, with its primary headquarters in Deerfield, Illinois.
Walgreen Eastern Co. Inc., doing business as Walgreens, is a New
York corporation, with its primary headquarters in Deerfield,
Illinois. Walgreen Sub is a wholly-owned subsidiary of Walgreen
Co. The Defendants operate retail stores that sell merchandise in
consumer goods categories, including pharmacy, health and hygiene,
beauty and cosmetics, grocery, vitamins and supplements, and other
consumer goods categories.
The Plaintiffs are represented by:
Chip Muller, Esq.
Nancy Sheinberg, Esq.
MULLER LAW, LLC
155 South Main Street, Suite 101
Providence, RI 02903
Telephone: (401) 256-5171
Facsimile: (401) 256-5178
E-mail: chip@chipmuller.com
nancy@sheinberg.org
WALGREEN CO: Faces "Adjaye" Suit Alleging Violations of FLSA
------------------------------------------------------------
Alfred Adjaye, et al. v. Walgreen Co., d/b/a Walgreens, Case No.
1:14-cv-03127-RWS (N.D. Ga., September 29, 2014) is brought
pursuant to the Fair Labor Standards Act for declaratory judgment,
monetary damages, liquidated damages, prejudgment interest, civil
penalties and costs, including reasonable attorneys' fees, as a
result of the Defendant's alleged failure to pay the Plaintiffs
overtime compensation for the hours they worked in excess of 40
either on or off the clock in single workweek.
The case arises from the matter of Teramura, et al. v. Walgreen
Co. d/b/a Walgreens, Civil Action No. 5:12-cv-05244-ELS, Docket
No. 284 (W.D. Ark. 2013). Pursuant to the Court's Order to
Decertify the Conditionally-Certified Collective Action the
Plaintiffs, all of whom were opt-in the Plaintiffs in Teramura,
file this Complaint against Walgreen.
The Teramura court, in its Order decertifying the conditionally-
certified class, tolled the statute of limitations for the
Plaintiffs until September 30, 2014, allowing the Plaintiffs time
to file a new lawsuit in their own state of residence.
The Plaintiffs are Alfred Adjaye, Jeremy Anderson, Tomeka Barnes,
Sonya Beal, John Bryant, Matt Comparato, Erin Conner, Jimmy Cox,
Quency Dudley, Kenneth Edwards, Raysa Figaro, Andrea Fisher-
Beckett, Tiffanie Gatling, Behzad Geraminejad, Jessie Goolsby,
III, Erika Green, Charonn Hamilton, Dorota Hang, Reginald Holmes,
Charlene James, Christina Johns, Lashunda Johnson, Syemeiko
Johnston, Andrew Jones, Dromeco Jones, Reginald Jones, Willie
Joines, Darian Kearney, Chevontaie Lewis, Samantha Lewis-Lee, Karl
Mangru, Carmyn Martin-Boone, Nicole Marzol, Tawanda Melvin,
Jhazsmin Moore, Jennifer Morilien, Courtney Morton, Steven Olson,
Patrick Parker, Heather Penney, Aliscia Pitts, Frederik Prosek,
Stacey Redd, Stephanie Ricks, Shondra Rooks, Devon Rutherford,
Elijah Sanders, III, Anwar Karim Shabazz, Margaret Stevens, Joanne
Sullivan, Althea Thompson, Diane Tinsley, Tasia Travicks, Jessica
Valentine, Linda Medley Watts, Antonio Williams, Justin Williams,
Vincent Wilson, Jeffery Wooley, Jr., Denny Wyatt, Javar Young and
Laurein Young.
Each of the Plaintiffs is an individual, who worked for the
Defendant as an Executive Assistant Manager, in Georgia within the
three years preceding the filing of their Consent to Join in
Teramura and or is a resident of Georgia.
Walgreens is a foreign, for-profit corporation registered to
conduct business in the state of Georgia and was the Plaintiffs'
employer. The Company operates retail stores that sell consumer
goods in categories including pharmacy, health and hygiene, beauty
and cosmetics, grocery, vitamins and supplements, and other
consumer goods categories.
The Plaintiffs are represented by:
James E. Rollins, Jr., Esq.
Debra Schwartz, Esq.
SCHWARTZ ROLLINS, LLC
945 E. Paces Ferry Road, Suite 2770
Atlanta, GA 30326
Telephone: (404) 844-4130
Facsimile: (404) 844-4135
E-mail: jer@gaemploymentlawyers.com
des@gaemploymentlawyers.com
WHISPERTEXT LLC: Wins Bid to Dismiss "McKenna" TCPA Class Action
----------------------------------------------------------------
Tony McKenna filed a class action complaint pursuant to the
federal Telephone Consumer Protection Act, 47 U.S.C.
227(b)(1)(A)(iii). Mr. McKenna brought suit against Defendants
WhisperText, LLC and WhisperText, Inc. for making unsolicited
"text message calls." In a motion to dismiss, WhisperText argued
that Mr. McKenna fails to sufficiently allege WhisperText made any
call using an "automatic telephone dialing system," a required
element of McKenna's claim. WhisperText alternatively argued this
lawsuit should be stayed to permit the Federal Communications
Commission to consider and rule on several pending petitions for
declaratory rulings seeking clarification of the TCPA's
contemporary definition of an ATDS. Mr. McKenna opposed.
In a hearing on September 9, 2014, the court denied WhisperText's
motion to stay and granted WhisperText's motion to dismiss with
leave to amend within 14 days of the written order.
"Because the court is not yet persuaded that no amendment could
save the claims dismissed, the court grants McKenna leave to
amend. Any amended complaint shall be filed no later than October
14, 2014," ruled Magistrate Judge Paul S. Grewal.
A copy of Magistrate Judge Grewal's opinion entered September 29,
2014, memorializing the September 9 order is available at
http://is.gd/TRWlAvfrom Leagle.com.
The case is TONY McKENNA, Plaintiff, v. WHISPERTEXT et al.,
Defendants, CASE NO. 5:14-CV-00424-PSG, (N.D. Cal.).
WhisperText, Inc., Defendant, represented by Rodger R. Cole --
rcole@fenwick.com -- Fenwick & West LLP, Bradley Thomas Meissner
-- bmeissner@fenwick.com -- Fenwick and West LLP & Tyler Griffin
Newby -- tnewby@fenwick.com -- Fenwick & West LLP.
WHOLE FOODS: Four Suits Consolidated in Greek Yogurt MDL in Mass.
-----------------------------------------------------------------
Plaintiffs Tracey Knox, Sarah McDonagh, Derek Guluba, and Barbara
Trevino sought and obtained acceptance from the United States
Judicial Panel on Multidistrict Litigation to transfer and
centralize the four federal actions to the United States District
Court for the District of Massachusetts. The actions are:
(1) Knox, et al. v. Whole Foods Market Group, Inc., et al.,
Case No. 1:14-cv-13185-RGS, pending in the District of
Massachusetts;
(2) Markley v. Whole Foods Market Group, Inc., et al.,
Case No. 8:14-cv-01892-CEH-MAP, pending in the Middle
District of Florida;
(3) Jackson, et al. v. Whole Foods Market Group, Inc., et al.,
Case No. 2:14-cv-06705-R-VBK, pending in the Central
District of California; and
(4) Grodnick, et al. v. Whole Foods Market Group, Inc., et
al., Case No. 1:14-cv-07035-ALC, pending in the Southern
District of New York.
The consolidated litigation is captioned IN RE: Whole Foods
Market, Inc., Greek Yogurt Marketing and Sales Practices
Litigation, MDL No. 2588.
There are three additional actions recently filed in state courts,
which the Defendants have stated they will remove to their
respective federal jurisdictions:
(1) Clemente, et al. v. Whole Foods Market Group, Inc., et
al., Case No. 140801271, pending in the Pennsylvania Court
of Common Pleas for the County of Philadelphia (within the
Eastern District of Pennsylvania);
(2) Bilder v. Whole Foods Market Group, Inc., et al.,
Case No. BUR-L-1904-14, pending in the New Jersey Superior
Court for the County of Burlington (within the District of
New Jersey); and
(3) Rodhouse v. Whole Foods Market, Inc.,
Case No. 1422-CC09626, pending in the Missouri Circuit
Court, City of St. Louis (within the Eastern District of
Missouri).
The actions involve common questions of fact that are sufficiently
numerous and complex to warrant centralization. All of the cases
are premised on similar factual allegations involving the sugar
content of Whole Foods 365 Everyday Value Plain Greek Yogurt,
which Defendants Whole Foods Market Group, Inc. and WFM Private
Label, L.P. advertise and market as containing less sugar per
serving than the Product actually does contain. The actions
involve similar class definitions (though they vary by state) and
bring many of the same causes of action.
Plaintiffs Tracey Knox, Sarah McDonagh, Derek Guluba, and Barbara
are represented by:
Tina Wolfson, Esq.
AHDOOT & WOLFSON, PC
1016 Palm Avenue
West Hollywood, CA 90069
Telephone: (310) 474-9111
Facsimile: (310) 474-8585
E-mail: twolfson@ahdootwolfson.com
- and -
William H. Anderson, Esq.
CUNEO GILBERT & LADUCA, LLP
507 C Street, NE
Washington, DC 20002
Telephone: (202) 789-3960
Facsimile: (202) 789-1813
E-mail: wanderson@cuneolaw.com
- and -
Charles J. LaDuca, Esq.
CUNEO GILBERT & LADUCA, LLP
8120 Woodmont Avenue, Suite 810
Bethesda, MD 20814
Telephone: (202) 789-3960
Facsimile: (202) 789-1813
E-mail: charlesl@cuneolaw.com
- and -
Erica C. Mirabella, Esq.
MIRABELLA LAW
132 Boylston Street, 5th Floor
Boston, MA 02116
Telephone: (617) 580-8270
Facsimile: (617) 583-1905
E-mail: erica@mirabellaLLC.com
- and -
Jon Herskowitz, Esq.
BARON & HERSKOWITZ
9100 South Dadeland Boulevard
Miami, FL 33156
Telephone: (305) 670-0101
Facsimile: (305) 670-2393
E-mail: jon@bhfloridalaw.com
- and -
Joseph Siprut, Esq.
SIPRUT PC
17 North State Street, Suite 1600
Chicago, IL 60602
Telephone: (312) 236-0000
Facsimile: (312) 546-9963
E-mail: jsiprut@siprut.com
* FINRA Proposal Confines Plaintiff Lawyers
-------------------------------------------
Miriam Rozen, writing for Texas Lawyer, reports that for some
veteran plaintiff lawyers, opportunities could be rarer to serve
on arbitration panels for disputes between investors and brokers.
That will be true if the Securities and Exchange Commission
approves a rule change proposed this summer by the Financial
Industry Regulatory Authority. The SEC has extended a comment
period until Oct. 1 on the FINRA proposal.
With that possible rule change and others in the same proposal,
FINRA, a broker-dealer self-regulating body, has misconstrued the
notion of what constitutes impartiality among arbitrators,
according to Houston's Tom Ajamie and other members of the Public
Investors Arbitration Bar Association (PIABA).
FINRA's proposal errs in that it threatens to allow more
arbitrators on panels who share the "mentality" of the securities
industry, rather than that of the investing public, argues
Mr. Ajamie, the managing partner of Houston's Mr. Ajamie, and
other plaintiff lawyers.
Not surprisingly though, a different opinion exists among Texas
lawyers who regularly defend brokers, including Houston's
Don Littlefield.
Mr. Littlefield believes that securities industry veterans often
make the most informed and objective arbitrators. "I think most
of the time investors would benefit from a person having industry
knowledge. I don't think industry knowledge creates a bias.
Knowledge is a good thing," said Mr. Littlefield, a partner in
Houston's Ballard & Littlefield.
Generally, most investor-broker disputes are resolved through
FINRA-governed arbitration panels since almost all brokerage
customer contracts in the United States contain a mandatory
arbitration clause. Under FINRA arbitration rules, both sides
select a three-person panel, picking from pools of "public"
arbitrators, ones without ties to the industry, and "non-public,"
ones with ties to the industry.
Under the FINRA proposal, attorneys, accountants and other
professionals who devote more than 20 percent of their
professional time to representing investors in securities claims
would be barred from entering the pool of "public" arbitrators and
confined to the "nonpublic" pool.
In a July 24 letter submitted to the SEC, PIABA president
Jason Doss -- jasondoss@dossfirm.com -- of The Doss Firm in
Marietta, Georgia wrote that his organization "takes issue with
proposed [changes] under which attorneys and other professionals
who service investors in securities disputes would be prevented
from serving . . . Such change would mark a radical departure from
the historical logic of designating arbitrators . . ."
Specifically, Doss wrote that PIABA objects to the exclusion of
attorneys who have previously represented investors in securities
disputes from the pool of potential "public" arbitrators. PIABA
objects to the FINRA proposal, Mr. Doss continued, because it
includes "additional categories of individuals with substantial
ties to the securities industry" who would "escape the proposed
'non-public' definition" and "be allowed to be classified as
'public,' despite having close ties to the financial services
industry."
FINRA spokeswoman Nancy Condon did not return a call by press
time.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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Chapman, Editors.
Copyright 2014. All rights reserved. ISSN 1525-2272.
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