/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/150212.mbx C L A S S A C T I O N R E P O R T E R Thursday, February 12, 2015, Vol. 17, No. 31 Headlines ADVANCED RECOVERY: Accused of Violating Fair Debt Collection Act ADVENTURE GUIDE: Recalls Outdoor BleacherBack Stadium Seats AGT CLIC: Recalls Clic Royal Couscous Spices ALORICA INC: Judge Grants Final Approval of Settlement Agreement ALTEC INDUSTRIES: Recalls A65 Model ARTHROCARE CORP: Judge Denied Claims of Violation of Fair Trial ATLANTA, GA: Lawyers Seek Attorney Fees in Pension Fund Suit AUSTRALIAN THERAPEUTIC: Recalls Zhansheng Weige Chaoyue Xilishi AVALON BAY: Sued by Tenants Displaced in Massive New Jersey Fire B&H EDUCATION: Benjamin, et al. May File 2nd Amended Complaint BANK OF AMERICA: Supreme Court Reverses Ruling in "Gelboim" Case BANK OF AMERICA: Loses Bid to Retry Countrywide Mortgage Case BARNES & NOBLE: Violates Disabilities Act, "Mielo" Suit Claims BEAUVAIS LTEE: Recalls Granny Smith Apples & Gala Apples BLOOMBERG LP: Removes "Harutyunyan" Suit to N.D. California BRIDGE TRANSPORT: Trial in "Hoa" Case Set for February 2016 C.H. ROBINSON: Bid to Compel Arbitration in "Poublon" Case Denied CALIFORNIA: Court Okays Class Settlement With Auditors CALIFORNIA: Bryd's Writ of Habeas Corpus Petition Dismissed CALIFORNIA: Judge Rejects Inmate's Equal Protection Claim CARRIER IQ: Bulk of Spying Claims vs. Smartphone Makers Dismissed CARRINGTON MORTGAGE: Faces "Santos" Class Suit in New Jersey CHRYSLER: Recalls Multiple Vehicle Models CLARK COUNTY, NV: 12 Constables and Servers Challenge Mass Firing COMPLETE PAYMENT: Class Allegations Stricken in "Zarichny" Case COOSEMANS MONTREAL: Recalls Granny Smith Apples & Gala Apples DELBERT SERVICES: Hayes et al., Compelled to Arbitration ENDO HEALTH: Removes "Mahaffay" Class Suit to N.D. California ENTERPRISE HOLDINGS: "Garcia" Suit May Be Amended in 21 Days EQUIFAX INFORMATION: Sued for Violating Fair Credit Reporting Act EQUIFAX INFORMATION: Cannot Reduce Information in Random Sampling FEDERAL EXPRESS: "Minor" Wrongful Termination Suit Dismissed FINISH LINE: "Arreola" Suit Moved From N.D. Cal. to C.D. Cal FORD: Recalls MKC Model Over Defective Powertrain Control Module GENERAL ELECTRIC: Opt-In Plaintiffs Not Required to Arbitrate GENERAL MOTORS: Recalls Cobalt, G5 and Pursuit Models GODADDY.COM INC: Summary Judgment Order in "Harris" Upheld GOOGLE INC: Sued Over Automatic Renewal of Google Drive Plan HEALTH CANADA: Recalls LX1 Due to Undeclared Substance IC SYSTEM: Accused of Violating Fair Debt Collection Act in N.Y. IKEA U.S.A.: Class in "Yeoman" Suit Decertified INTERTEK: Recalls Certain Crane Brand Wi-Fi Infrared Heaters J & G TRANSPORT: Fails to Sink "Collado" TILA Suit KELLOGG CANADA: Recalls MorningStar Farms Spicy Black Bean Burger KENT'S MEAT: Faces "Duckworth" Suit Alleging Job Discrimination LES PLATS: Recalls Cuisines Adventures Mini Sausages LOS ANGELES, CA: Ruling Over Document Production Affirmed LOUISVILLE DISTILLING: Removes "Aliano" Suit to N.D. Illinois MAPLE LEAF: Recalls Schneiders Deli Best Blue Ribbon Bologna MARVELL TECHNOLOGY: "Voss" Suit Dismissed With Leave to Amend MCKESSON CORP: N.D. Cal. Judge Resolves Discovery Issues MCKESSON CORP: Court Won't Split Discovery in "True Health" Suit NATIONAL FOOTBALL: NFL Retirees Ask 9th Cir. to Revive Class Suit NGS INC: "McCown" Suit Remanded to Putnam County Circuit Court NISOURCE CORPORATE: "Philibotte" TILA Suit Dismissed NORTHERN MEAT: Recalls Roland Bruschetta Due to Glass Pieces NOVO NORDISK: Obtains Final Court Approval of Antitrust Suit Deal NUVASIVE INC: "Mauss" Securities Fraud Suit Dismissed PALME D'OR: Recalls Duck Products Due to Container Issues PAPA JOHNS: Court Struck Down Bid to Dismiss "Schojan" Suit PATRICK CUDAHY: "Rangel" Suit Stays in E.D. Wis. Federal Court PGA TOUR: Caddies File Class Action Over Endorsement Policy PHILLIPS & COHEN: Accused of Illegally Contacting Class Members POLARIS: Recalls Multiple Vehicle Models PRESTIGE TRANSPORTATION: Suit Seeks to Recover Unpaid Wages & OT PRINCESS AUTO: Recalls Kitchener Meat Grinders RANGER CONSTRUCTION: Sued Over Retaliation and Wrongful Discharge REGENT MANAGEMENT: Faces Suit Alleging Disabilities Act Violation RHEEM MANUFACTURING: Sued Over Refrigerant Leak in HVAC Products ROC HOUSE: Suit Seeks to Recover Unpaid Wages, OT and Damages ROCKY MOUNTAIN: Recalls Caramel Apples Due to Listeria SAGE HOSPITALITY: Accused of Violating Disabilities Act in Colo. SHEARER'S FOODS: Court Narrows Claims in "Bohlke" False Ad Case SHERIDAN PRODUCTION: Removes "Whisenant" Suit to W.D. Oklahoma SINGAPORE HEALTH: Recalls Joint-Soft Kebigutaijiaonang STANDARD & POOR'S: Connecticut to Get $1.38 Mil. From Settlement SYNGENTA CORP: "Boatwright" Suit Consolidated in MIR162 Corn MDL TASTE CULINARY: Recalls Umi's Kitchen Butter Chicken Simmer Sauce THOR MOTOR: Recalls Chateau, Miramar, Palazzo & Windsport Models TOYOTA MOTOR: Must Pay $11 Million to 1996 Camry Crash Victims UNCLE T FOOD: Recalls Trung Nguyen G7 Black Instant Coffee 2-in-1 UNITED BANK: Harbortouch Gets OK to Amend Answer to "Corona" Suit UNITED STATES: Dist. Court Dismisses Class Action Suit vs. DOE UNITED STATES: Obamacare Improperly Taxes States, Ohio Claims US FOOD & DRUG: Recalls Natural Health Foreign Products VIVO BRAND: Forta for Men Due to Homosildenafil Recalled WAH LEE: Recalls FEEMA Cordless Electric Kettle WAL-MART INC: Judge Narrows Claims in "Cortina" Class Suit WESTON TRANSPORTATION: "Brown" Suit Transferred to W.D. Missouri WESTOWER COMMS: April 8 Final Settlement Approval Hearing ********* ADVANCED RECOVERY: Accused of Violating Fair Debt Collection Act ---------------------------------------------------------------- Wendy McWilliams, Individually and on behalf of others similarly situated v. Advanced Recovery Systems, Inc., and Young Wells Williams, P.A., Case No. 3:15-cv-00070-CWR-LRA (S.D. Miss., February 4, 2015) accuses the Defendants of violating the Fair Debt Collection Practices Act. The Plaintiff is represented by: Shireen Hormozdi, Esq. HORMOZDI LAW FIRM, LLC 1770 Indian Trail Lilburn Road, Suite 175 Norcorss, GA 30093 Telephone: (678) 395-7795 Facsimile: (866) 929-2434 E-mail: shireen@norcrosslawfirm.com ADVENTURE GUIDE: Recalls Outdoor BleacherBack Stadium Seats ----------------------------------------------------------- Starting date: December 31, 2014 Posting date: December 31, 2014 Type of communication: Consumer Product Recall Subcategory: Outdoor Living Source of recall: Health Canada Issue: Product Safety Audience: General Public Identification number: RA-43095 Affected products: GCI Outdoor BleacherBack stadium seats The recall involves GCI Outdoor BleacherBack stadium seats. The seats are made of a powder-coated steel frame, a stitched fabric backrest and a fabric-covered padded bottom. The backrest has a mesh pocket on the back side. The seat bottom has a strap that runs from one side through two D rings on the upper part of the backrest and back down to the other side. The strap has a yellow buckle. The backrest and seat bottoms were sold in the colours black, green, maroon, navy blue, red and royal blue. When open, the seats measure 41 centimetres (16 inches) wide x 30.5 centimetres (12 inches) deep x 44.5 centimetres (17.5 inches) high. The backrest folds forward to a height of 10 centimetres (4 inches). Recalled stadium seats have these purchase order (PO) numbers: 41223, 41269, 41273, 41332, 41348, 41367, 41368, 41371, 41372, 41379, 41380, 41390, 41401, 41515, 41520, 41537, 41538, 41539, 41540, 41541, 41542, 41627, 41628, 41629, 41630, 41631, 41632, 41633, 41634, 41635, 41636, 41639, 41640, 41641, 41642, 41643, 41644, 41645, 41646, 41647, 41648, 41649, 41668, 41715, 41716, 41717 and 41718. The PO number is on a small white tag under the product information label sewn onto the back of the chair inside the pocket. The backrest can fail, posing a risk of injury. Neither Health Canada nor Adventure Guide Inc. has received any reports of consumer incidents or injuries related to the use of this product. Approximately 9 units were sold at the Adventure Guide Inc. store in Canada. The recalled products were manufactured in China and sold from Jan. 1, 2013 to Aug. 30, 2014. Companies: Importer Adventure Guide Inc. Kitchener Ontario Canada Consumers should immediately stop using the recalled stadium chairs and contact Adventure Guide Inc. for a free strap repair kit that includes installation instructions, an additional safety strap and a new warning sticker. AGT CLIC: Recalls Clic Royal Couscous Spices -------------------------------------------- Starting date: January 8, 2015 Type of communication: Recall Alert sub-type: Food Recall Warning (Allergen) Subcategory: Allergen - Sesame Seeds Hazard classification: Class 3 Source of recall: Canadian Food Inspection Agency Recalling firm: AGT Clic Foods Inc. Distribution: Prince Edward Island, New Brunswick, Nova Scotia, Ontario, Quebec, Newfoundland and Labrador Extent of the product distribution: Retail CFIA reference number: 9569 Affected products: 100 g. Clic Royal Couscous Spices (Mild) and 100g. Clic Royal Couscous Spices (Hot) ALORICA INC: Judge Grants Final Approval of Settlement Agreement ---------------------------------------------------------------- District Judge James D. Whittemore of the Middle District of Florida, Tampa Division approved the agreement between defendant and the settlement class in the case LAQUISHA BANKS, MARY BEST, AUBREE BURRIS, JULIA DELCID, REBECCA HOWELL, ANGEL HULSBERG, ALEXANDRA MARCANO, JOAN THOMAS, SAMARIS TOLEDO, REBEKAH WEAVER, LAWANA WILLIAMS, WANDA WORKS, JASYLINE SMITH, ROBERT WOMACK, VICTOR HORRELL, RACHEL ANGLADA, IRMA LAUREANO, WALTER JACOBSEN, CARMEN MERCADO, NITOSHA DIAZ, SANDRA MORENO, LONETTE POSEY, CHERYL THORPE, CYNTHIA GORDON, MARCE A. RICE, and PLATO M. MATHIS on behalf of themselves and on behalf of a Class Comprised of other Similarly Situated Former Employees of Defendant, Plaintiffs, v. ALORICA INC., Defendant, Case No. 8:13-CV-00985-T27 TBM (M.D. Fla.). The Court noted that the alleged liability of the defendant was highly disputed and that the terms of the settlement and the settlement amount are fair, reasonable, and adequate, considering the strengths and weaknesses of plaintiffs' case; the risk, expense, complexity, and likely duration of litigation; the experience and views of counsel; and the amount of the settlement compared to the maximum amount of damages the class would be entitled to recover if successful at trial. The settlement negotiations were arm's-length and were not the result of fraud or collusion, and the settlement amount is fair and adequate in light of the potential outcome and the costs of litigation. The Plaintiffs filed an unopposed motion for an order approving the agreement between the defendant and the settlement class. For the purposes of the settlement, (i) the class, consisting of 82 settlement class members, is so numerous that joinder of all settlement class members is impracticable; (ii) there are questions of law or fact common to the settlement class; (iii) the claims of the class representatives are typical of the settlement class; (iv) plaintiffs' counsel, the law firm of Wenzel Fenton Cabassa, P.A. and Cynthia M. Gonzalez, have fairly and adequately protected the interests of the settlement class and have had experience handling class action litigation, collective actions, and multi-plaintiff employment cases; (v) the class representatives do not have interests antagonistic to those of the settlement class; (vi) questions of law or fact common to the settlement class members predominate over questions affecting only the individual settlement class members; and (vii) the class settlement mechanism is superior to other available methods of resolving the alleged WARN Act claims and the other claims released in the settlement agreement. Named Plaintiffs Mary L. Best, Samaris Toledo, and Robert Womack acted as class representatives, and the participation payment allocated to each class representative by the settlement agreement is fair and reasonable. Counsel for plaintiffs have vigorously protected, asserted, and prosecuted the interests of the class throughout this litigation. An attorney fee award in the maximum allowed under the settlement agreement is fair, reasonable, and justified considering the efforts put forth on behalf of the class, the experience of class counsel, the hours worked, and the other factors presented during the hearing and considered by the court. The court authorizes payments of the above fees to class counsel as provided in the parties' settlement agreement. Judge Whittemore granted plaintiffs' motion and the action is dismissed on the merits with prejudice. A copy of Judge Whittemore's order dated December 3, 2014, is available at http://is.gd/G1Ce0zfrom Leagle.com. Laquisha Banks, Mary Best, Aubree Burris, Julia Delcid, Rebecca Howell, Angel Hulsberg, Alexandra Marcano, Joan Thomas, Samaris Toledo, Rebekah Weaver, Lawana Williams, Wanda Works, Jasyline Smith,, Robert Womack, Victor Horrell, Rachel Anglada, Irma Laureano, Walter Jacobsen, Carmen Mercado, Nitosha Diaz, Sandra Moreno, Lonette Posey, Plato M. Mathis, Marce A. Rice, Plaintiffs, represented by: Cynthia M. Gonzalez, Esq. CYNTHIA GONZALEZ LAW OFFICES 6301 Memorial Highway, Suite 301 Tampa, FL 33615 Telephone: 813-952-0009 E-mail: cynthia@wagesdue.com - and - Luis A. Cabassa, Esq. WENZEL FENTON CABASSA, PA 1110 N Florida Ave, Ste 300 Tampa, FL 33602 Tel: 813-579-2483 Fax: 813-229-8712 Cynthia Gordon, Defendant, Plaintiff, represented by: Cynthia M. Gonzalez, Esq. CYNTHIA GONZALEZ LAW OFFICES 6301 Memorial Highway, Suite 301 Tampa, FL 33615 Telephone: 813-952-0009 E-mail: cynthia@wagesdue.com - and - Luis A. Cabassa, Esq. WENZEL FENTON CABASSA, PA 1110 N Florida Ave, Ste 300 Tampa, FL 33602 Tel: 813-579-2483 Fax: 813-229-8712 Cheryl Thorpe, Plaintiff, represented by: Cynthia M. Gonzalez, Esq. CYNTHIA GONZALEZ LAW OFFICES 6301 Memorial Highway, Suite 301 Tampa, FL 33615 Telephone: 813-952-0009 E-mail: cynthia@wagesdue.com - and - Luis A. Cabassa, Esq. WENZEL FENTON CABASSA, PA 1110 N Florida Ave, Ste 300 Tampa, FL 33602 Tel: 813-579-2483 Fax: 813-229-8712 Alorica, Inc., Defendant, represented by Allegra J. Lawrence-Hardy -- allegra.lawrence-hardy@sutherland.com -- Amelia T. Rudolph -- amelia.rudolph@sutherland.com -- Laurance J. Warco -- laurance.warco@sutherland.com -- Sorelle B. Brown -- sorelle.brown@sutherland.com -- at Sutherland, Asbill & Brennan, LLP; Dineen Pashoukos Wasylik -- dineen.wasylik@ip-appeals.com -- at Dineen Pashoukos Wasylik, PA ALTEC INDUSTRIES: Recalls A65 Model ----------------------------------- Starting date: January 8, 2015 Type of communication: Recall Subcategory: Equipment Notification type: Safety Mfr System: Brakes Units affected: 64 Source of recall: Transport Canada Identification number: 2015004 TC ID number: 2015004 Manufacturer recall number: 14V-745 On certain aerial devices installed on utility service vehicles (to elevate personnel in order to facilitate working on overhead service lines, for tree trimming, etc.), unintended boom movement could occur in severe cold temperature operation if hydraulic oil warm-up procedures are not followed. This could allow the aerial device to move unexpectedly, which could result in property damage and/or personal injury. Preset pressure transducers will be added or updated as necessary. Owners may contact Altec at 1-877-462-5832. Affected products: 1999 ALTEC A65 ARTHROCARE CORP: Judge Denied Claims of Violation of Fair Trial --------------------------------------------------------------- District Judge Sam Sparks of the U.S. District Court for the Western District of Texas, Austin Division, ruled on defendants' motions in the case entitled UNITED STATES OF AMERICAN, v. MICHAEL BAKER (1) MICHAEL GLUK (2), CAUSE No. A-13-CR-346-SS (W.D. Tex.) Michael Gluk and Michael Baker are the CEO and CFO of ArthroCare Corporation, a medical device company founded in Austin, Texas, which grew from a small business into a publicly-traded corporation and employed many residents of the Austin area. Preceding Baker and Gluk's case were two national class action suits, one against ArthroCare's Board of Directors and one against the corporation itself; an action against ArthroCare filed by the SEC; and a criminal action against two ArthroCare officers who pleaded guilty one day before their trial was set to begin. Baker and Gluk's indictments followed. The jury returned a unanimous verdict finding both guilty of all counts charged in the Superseding Indictment. Both Baker and Gluk now contend their Sixth Amendment right to a public trial, as articulated by the Supreme Court in Presley v. Georgia, 558 U.S. 209 (2010) (per curiam), was violated during their criminal proceedings, entitling them to a reversal of their convictions and a new trial. Specifically Baker filed a motion for new trial under F.R.C.P. 33(b)(1), Gluk filed a joinder of Baker's motion for new trial. Judg Sparks granted Gluk's motion for joinder of Baker's motion for new trial but denied Baker's motion for new trial in which Gluk joins. A copy of Judge Sparks's order dated December 4, 2014, is available at http://is.gd/S1gEFxfrom Leagle.com Arthrocare Corporation, Movant, represented by Benjamin I. Koplin -- ben.koplin@nortonrosefulbright.com -- R. Jeffrey Layne -- jeff.layne@nortonrosefulbright.com -- at Fulbright & Jaworski, LLP United States Securities and Exchange Commission, Movant, represented by: Juanita C. Hernandez U.S. Securities and Exchange Commission 100 F Street, NE Washington, DC Telephone: 202-942-8088 USA, Plaintiff, represented by: Joseph H. Gay, Jr. - Assistant U.S. Attorney Benjamin D. Singer Darrin L. McCullough Henry Parker Van Dyck William S.W. Chang U.S. Department of Justice Criminal Division 950 Pennsylvania Avenue, NW Washington, DC 20530-0001 Telephone: 202-353-4641 E-mail: Criminal.Division@usdoj.gov ATLANTA, GA: Lawyers Seek Attorney Fees in Pension Fund Suit ------------------------------------------------------------ Greg Land, writing for Daily Report, reports that the city of Atlanta says lawyers who launched an unsuccessful challenge to Mayor Kasim Reed's 2011 pension fund reform should pay the city more than $400,000 in attorney fees and expenses because the lawsuit was frivolous. John Bell Jr. -- john@bellbrigham.com -- and Lee Brigham -- lee@bellbrigham.com -- of Augusta's Bell & Brigham, who brought the suit on behalf of city workers, have appealed a judge's dismissal of the suit to the Supreme Court of Georgia. In a response to the city's motion, Messrs. Bell and Brigham wrote that the suit involves "question of first impression about which reasonable minds might disagree," and asked the court to defer any ruling until the appeal has played out. "The city's been represented by very competent counsel, and I have great respect for them," said Mr. Bell in an interview. "But I don't think, by any stretch of the imagination, our claims are frivolous." The case raises serious constitutional questions and was destined to go to the Supreme Court no matter how Judge John Goger of Fulton County Superior Court ruled, Mr. Bell said. "Of course, they have a right to file [the fee motion]," said Mr. Bell. "I've been trying cases for 40 years, and I've never filed one of these." Last November, Judge Goger dismissed the putative class action, filed on behalf of seven members of the city police, firefighters and general employees' pension funds. In December, Atlanta Chief Counsel Robin Shahar and Assistant City Attorney Seth Eisenberg said that they warned the plaintiffs' lawyers about attorney fees in January 2014. That's when the city sent a formal notice to the plaintiffs' counsel that the lawsuit "lacked substantial justification." At the same time, it said, they filed a motion for summary judgment containing the same law and facts Judge Goger relied upon in dismissing the case. "Defendants' formal notice afforded plaintiffs the opportunity to dismiss their case by Jan. 17, 2014, to avoid defendants' request for attorney fees," the motion said. Instead, they pursued the litigation and "continue to ignore the frivolity of this lawsuit as evidence by their notice of appeal," it said. The suit sought to reverse changes to the city's pension plan that increased the amount employees pay into their plans by 5 percentage points. Before the revision, employees were required to contribute 7 or 8 percent of their salary to the pension, depending upon whether they had a designated beneficiary. In mid- 2011, the City Council increased those percentages to 12 and 13 percent. The plaintiffs sued in 2013, arguing that the change violated the Georgia Constitution's impairment clause, which bars the passage of any "laws impairing the obligation of contract." According to the suit, Georgia law mandates that a government employee's pension plan is part of his employment contract; unless there is a specific provision allowing his employer to change the terms of the plan, it may not be changed if it reduces the value of the employee's benefits. The city argued that several prior cases have made clear that public employees do not have a constitutionally protected interest in their pension benefits if the plans expressly authorize their employer to make future changes to those plans. The pension cards Atlanta employees signed specified that they had given their "irrevocable consent" to participate in the plan, "as amended, or as may hereinafter be amended." Messrs. Bell and Brigham brought the putative class action in 2013, seeking declaratory and injunctive relief stopping the city from collecting the additional payments and demanding that any sums collected above the pre-revision rates be refunded. Their suit and subsequent filings argued that, unlike the other pension plans that Georgia courts have ruled were allowed to be changed, Atlanta pension plan enrollment documents did not include "necessary" language warning employees that they had no vested rights in their pensions or that their benefits were subject to future revision. In November, Judge Goger granted summary judgment to the city, writing that in prior cases upholding pension changes, the plans' language had varied widely and no particular language warned that their terms might be altered. "The courts in each of those cases evaluated a different pension plan and, importantly, the wording of each plan is unique," Judge Goger wrote. "No 'necessary' language is referenced and the court finds nothing in those decisions suggesting that the holding was based on the exact language of the amendment provisions at issue." The plaintiffs' lawyers file a notice of appeal, and on Dec. 26 the city filed a motion seeking $400,091 in attorney fees and $35,656 for legal expenses. The figures were tabulated from Jan. 17, 2014, the deadline the city's notice had given the plaintiffs to dismiss the complaint or face action to recover fees and expenses. Although as salaried city attorneys Ms. Shahar and Mr. Eisenberg earn only $49 an hour, they calculated their fee demand based on rates of private attorneys with comparable education, background and experience. They deemed Ms. Shahar's time worth $540 an hour, Mr. Eisenberg's at $375, and that of a paralegal at $150 per hour. The motion noted that, had the plaintiffs' class action been successful, the amount of compensatory damages due to them would have been about $36.6 million, of which Messrs. Bell and Brigham would have likely billed one-third, or $12 million. "An award of attorney fees to defendants for a fraction of this amount is completely reasonable and justified under Georgia law," the city's motion said. Ms. Shahar and Mr. Eisenberg said they had to file the motion for fees within 45 days after Judge Goger's ruling to preserve the city's right to seek fees under the Rules of Civil Procedure. Asked why the city is seeking fees only from the plaintiffs' lawyers and not the city workers who are plaintiffs, the city attorneys said the plaintiffs' lawyers were the ones who should have known to drop the suit. "We think this is really about the lawyers' due diligence," said Mr. Eisenberg. "After we provided our summary judgment [brief] that provided all the law, they had all they needed to dismiss the case. It's really a due diligence question for them, not the plaintiffs -- the plaintiffs aren't lawyers." "The city did not charge for any time prior to submitting our motion for summary judgment," said Ms. Shahar. "The reason for that goes back to legal due diligence. Giving those attorneys the benefit of the doubt, we actually performed their legal analysis for them, and handed them a brief containing the case law. So our point in our letter was, 'Here's the law, if you drop the suit we won't go forward [with a fee demand].'" A Jan. 16 response brief from the plaintiffs said the facts of the Atlanta case differ significantly from those Judge Goger cited in his order. It also quotes a Georgia law barring fee recovery against a lawyer or party making "a good faith attempt to establish a new theory of law in Georgia if such new theory of law is based on some recognized precedential or persuasive authority." Mr. Bell and the city lawyers said they had discussed asking Judge Goger to withhold ruling on the fee motion until after the Supreme Court decides the case, but on Feb. 2 the judge notified the attorneys that he intended to stay the fee request until after the high court rules. Ms. Shahar said that decision should bolster the city's case for fees if, as she predicts, it goes against the plaintiffs. "The city is confident we will win on appeal and that Judge Goger's order will be upheld," said Ms. Shahar. "It seems logical that the appeal will factor into [the fee] case." Mr. Bell, reached in Augusta office, joked about the hefty fee request. "I've told my wife to start looking for a double-wide for us to move into," he said with a laugh. "Something on the South Carolina side, where they can't attach it." The case is Borders v. City of Atlanta, No. 2013CV239021. AUSTRALIAN THERAPEUTIC: Recalls Zhansheng Weige Chaoyue Xilishi --------------------------------------------------------------- Starting date: December 30, 2014 Type of communication: Foreign Product Alert (FPA) Subcategory: Natural health products Source of recall: Health Canada Source of alert: Australian Therapeutic Goods Administration United States Food and Drug Administration These products are not authorized for sale in Canada and have not been found in the Canadian marketplace, but it is possible they may have been brought into the country by travellers or purchased over the Internet. Affected products: Zhansheng Weige Chaoyue Xilishi, Chong Cao Zhag Bian Bao, Night Man, MMC Sex Men capsules, O.M.G., Arize, Herbal Vigor Quick Fix, Zhansheng Weige Chaoyue Xilishi, Chong Cao Zhag Bian Bao, Night Man, MMC Sex Men capsules, and O.M.G. These products are promoted for sexual enhancement. The Australian Therapeutic Goods Administration (TGA) warned consumers not to use the products Zhansheng Weige Chaoyue Xilishi, Chong Cao Zhag Bian Bao, Night Man, and MMC Sex Men capsules and the United Stated Food and Drug Administration (FDA) warned consumers not to use the product O.M.G. after they were found to contain sildenafil. Sildenafil is a prescription drug used to treat erectile dysfunction and should only be taken under the supervision of a healthcare professional. Sildenafil should not be used by individuals taking any kind of nitrate drug (e.g., nitroglycerine) as it can cause potentially life-threatening low blood pressure. Individuals with heart problems are at increased risk of cardiovascular side effects such as heart attack, stroke, chest pain, high blood pressure and abnormal heartbeat. Other side effects include headache, facial flushing, indigestion, dizziness, abnormal vision, and hearing loss. This product is promoted for sexual enhancement. The United Stated Food and Drug Administration (FDA) warned consumers not to use the product Arize after it was found to contain sulfoaildenafil. Sulfoaildenafil is an unauthorized substance similar to sildenafil, a prescription drug used to treat erectile dysfunction and may pose similar health risks. Sildenafil should only be taken under the supervision of a healthcare professional. Place of origin Sildenafil should not be used by individuals taking any kind of nitrate drug (e.g., nitroglycerine) as it can cause potentially life-threatening low blood pressure. Individuals with heart problems are at increased risk of cardiovascular side effects such as heart attack, stroke, chest pain, high blood pressure and abnormal heartbeat. Other side effects include headache, facial flushing, indigestion, dizziness, abnormal vision, and hearing loss. This product is promoted for sexual enhancement. The United Stated Food and Drug Administration (FDA) warned consumers not to use the product Herbal Vigor Quick Fix after it was found to contain tadalafil. Tadalafil is a prescription drug used to treat erectile dysfunction and should only be taken under the supervision of a healthcare professional. Tadalafil should not be used by individuals taking any kind of nitrate drug (e.g., nitroglycerine) as it can cause potentially life-threatening low blood pressure. Individuals with heart problems are at increased risk of cardiovascular side effects such as heart attack, stroke, chest pain, high blood pressure and abnormal heartbeat. Other side effects include headache, facial flushing, indigestion, dizziness, abnormal vision, and hearing loss. AVALON BAY: Sued by Tenants Displaced in Massive New Jersey Fire ---------------------------------------------------------------- Chris Fry at Courthouse News Service reports that tenants displaced from a massive residential apartment fire along the Hudson River in Edgewater, N.J., claim in court that the lack of sprinklers in attics of their complex and use of lightweight wood construction "may have accelerated the spread of the fire." The class action against Avalon Bay Communities in Bergen County Superior Court comes just days after a Jan. 21 fire burned to the ground the 408-unit luxury housing complex known as Avalon Bay at Edgewater, constructed in 2002. Citing New York Times coverage of the fire, the residents say maintenance workers sparked the fire while using a blowtorch in the basement of the complex to fix a plumbing issue. The fire displaced more than 1,000 people, half of them permanently, and completely destroyed 230 units, according to the complaint. Both of the class action's named plaintiffs, Robert Loposky and Richard Kemp, say all of his personal belongings they kept in their apartments, including Loposky's dogs, were lost in the fire. The fire started at around 4:30 in the afternoon and continued overnight, drawing response from more than 35 different local fire departments in New York and New Jersey, including the FDNY, according to the complaint. Though no person died in or because of the fire, two residents and two firefighters were reportedly treated for minor injuries, and others like Loposky lost pets, the complaint states. The residents blame Avalon for ignoring that "the risk was increased when using lightweight wood construction and/or in allowing a blowtorch to be used in close proximity to flammable materials." While local and state authorities have noted that the building was up to code, the class quotes Edgewater's Fire Chief Tom Jacobson as saying in a press conference after the fire: "If [the building] was made out of concrete and cinder block, we wouldn't have this sort of problem." The class also faults Avalon for initially downplaying the fire. "At approximately 6:25 p.m., two hours after the fire was first reported, a mass email was sent to tenants of the Avalon advising them that there was a 'minor fire' at the complex," the comlaint states. This description was false since "this was, in fact, a devastating fire that, at its peak, emitted smoke that was visible from across the Hudson River in Manhattan," the complaint states. The class faults Avalon's developers for moving ahead with the project after settling lawsuits associated with a different fire at the same location 15 years earlier. New York Times reporting on that earlier incident quotes fire officials as calling it "the worst blaze they had seen in decades," according to the complaint. Avalon used lightweight wood construction that is "faster to build with, but also more flammable," the class says. "It has also been reported that the Avalon apartments did not have sprinklers in the attics or concealed spaces," possibly accelerating the spread of the fire, according to the 21-page complaint. Other Avalon properties have also allegedly experienced safety issues. In 2012, a fire broke out at the company's Avalon Garden City complex in Garden City, N.Y., while it was still under construction, the complaint says. Maryland-based Avalon Bay has ownership interests in 274 apartment communities across the country and reported $1.4 billion in revenue for 2013, the class notes. Edgewater, thrust into the regional spotlight on account of the Avalon fire, is a small borough just south of the George Washington Bridge across from Manhattan's Upper West Side. The borough and the surrounding area have seen a huge construction boom the last 20 years, with Edgewater more than doubling in size, going from about 5,000 residents in 1990 to just over 12,000 in 2010. Pressed for an interview, Avalon Bay said it had "no comment at this time." The company's chief construction officer, Michael Feigin, said in a statement after the fire, however that the wood-frame construction used on the project is "a standard, common, and safe construction method for multifamily housing used throughout the United States." "The community was built in accordance with the fire and safety codes applicable at the time," Feigin said. NJ Advance Media has also reported that AvalonBay has pro-rated all of January leases of its Edgewater tenants, returned security deposits to permanently displaced tenants and offered $1,000 to help tenants find short-term accommodations. Multiple media sources have additionally reported that Avalon Bay did require that tenants obtain renter's insurance as a condition of the lease. The class, represented by Bruce Greenberg, Esq., at Lite DePalma & Greenberg, in Newark, New Jersey -- bgreenberg@litedepalma.com -- seeks damages for negligence and nuisance. Greenberg told the Newark Star Ledger that "at this point we don't have a specific amount in damages, but that will come out as the case proceeds." B&H EDUCATION: Benjamin, et al. May File 2nd Amended Complaint -------------------------------------------------------------- District Judge Vince Chhabria signed on January 21, 2015, a joint stipulation pursuant to Fed. R. Civ. P. 15(a)(2) regarding the filing of a second amended collective and class action complaint in JACQUELINE BENJAMIN, BRYAN GONZALEZ, and TAIWO KOYEJO, on behalf of themselves and classes of those similarly situated, Plaintiffs, v. B&H EDUCATION, INC., a corporation, dba "MARINELLO SCHOOLS OF BEAUTY"; and DOES 1 through 100, Defendants, CASE NO. CV 13-04993-VC, (N.D. Cal.). The Plaintiffs and Defendant, through their respective counsel of record, agreed that Plaintiffs may file a proposed Second Amended Collective and Class Action Complaint, which will be deemed filed as of the date of filing of the Stipulation and Defendant will file its responsive pleading to the Second Amended Collective and Class Action Complaint no later than 30 days from the date of filing of the Stipulation. A copy of the court-approved stipulation is available at http://is.gd/pmPF1g from Leagle.com. LEON GREENBERG -- leongreenberg@overtimelaw.com -- DANA SNIEGOCKI -- dana@overtimelaw.com -- LAW OFFICE OF LEON GREENBERG, Las Vegas, NV, BRYAN J. SCHWARTZ -- bryan@bryanschwartzlaw.com -- ADETUNJI OLUDE -- adetunji@bryanschartzlaw.com -- BRYAN SCHWARTZ LAW, Oakland, CA, Attorneys for Plaintiffs. KEITH ZAKARIN -- KZakarin@duanemorris.com. Keith -- JULIE A. VOGELZANG -- jvogelzang@duanemorris.com -- COURTNEY L. BAIRD -- CLBaird@duanemorris.com -- DUANE MORRIS LLP, San Diego, CA, DAVID A. LOWE -- dal@rezlaw.com -- CHAYA M. MANDELBAUM -- cmm@rezlaw.com -- MICHELLE G. LEE, RUDY, EXELROD, ZIEFF & LOWE, LLP, San Francisco, CA, Attorneys for Defendant B&H Education, Inc. BANK OF AMERICA: Supreme Court Reverses Ruling in "Gelboim" Case ---------------------------------------------------------------- Ellen Gelboim and Linda Zacher filed in the United States District Court for the Southern District of New York a class-action complaint raising a single claim. They alleged that a number of banks, acting in concert, had violated federal antitrust law. Their case was consolidated for pretrial proceedings together with some 60 other cases, commenced in different districts, raising "one or more common questions of fact," Section 1407(a). The defendant banks moved to dismiss the Gelboim-Zacher complaint on the ground that the plaintiffs had suffered no antitrust injury. The District Court granted the motion, denied leave to amend the complaint, and dismissed the case in its entirety. Other cases made part of the multidistrict pretrial proceedings, however, presented discrete claims and remained before the District Court. The Court of Appeals for the Second Circuit, acting on its own motion, dismissed the appeal filed by Gelboim and Zacher for want of appellate jurisdiction. The Supreme Court of the United States, in an opinion entered January 21, 2015, a copy of which is available at http://is.gd/SiasLK from Leagle.com, reversed the Second Circuit's judgment and held that the Gelboim-Zacher complaint retained its independent status for purposes of appellate jurisdiction under Section 1291. The Supreme Court said the Petitioners' right to appeal ripened when the District Court dismissed their case, not upon eventual completion of multidistrict proceedings in all of the consolidated cases. The Supreme Court remanded the case for further proceedings consistent with its opinion. The case is ELLEN GELBOIM, ET AL., PETITIONERS v. BANK OF AMERICA CORPORATION ET AL., NO. 13-1174. BANK OF AMERICA: Loses Bid to Retry Countrywide Mortgage Case ------------------------------------------------------------- Scott Flaherty, writing for The Litigation Daily, reports that never one to mince words, U.S. District Judge Jed Rakoff in Manhattan had a few harsh ones for Bank of America Corp. on Feb. 3, ruling that it "utterly failed" to offer a compelling reason to retry a mortgage fraud case that put the bank on the hook for $1.27 billion. In a 15-page decision, Judge Rakoff rejected a motion for judgment as a matter of law or a new trial lodged by Bank of America's lawyers at Williams & Connolly. "The jury's conclusion that this was a massive and intentional fraud was amply supported by the evidence," Judge Rakoff wrote. The ruling marks the latest win for the U.S. Department of Justice in the civil fraud case, which accuses the bank's Countrywide Financial unit and former Countrywide executive Rebecca Mairone of duping Fannie Mae and Freddie Mac into buying shoddy mortgages. The case was first brought in 2012 by whistleblower Edward O'Donnell, a former Countrywide Home Loans vice president. A jury found against the bank in October 2013, determining that Countrywide misrepresented to Fannie and Freddie the quality of mortgages it originated through a program known internally as high-speed swim lane (HSSL), or "hustle." In July, Judge Rakoff leveled a fine of $1.27 billion against BofA and hit Ms. Mairone with a $1 million penalty for her role in the scheme. (Mr. O'Donnell, a key witness in the government's case, eventually raked in a $57.7 million whistleblower award.) In the wake of Judge Rakoff's July decision, the bank asked for a new trial and asserted that there wasn't enough evidence of a "material misrepresentation" on Countrywide's part to support the jury's fraud findings. Judge Rakoff sniped at that argument in the Feb. 3 ruling, writing that it "borders on the frivolous." A BofA spokesman confirmed on Feb. 3 that the company will appeal. The bank's legal team includes Williams & Connolly's Brendan Sullivan -- bsullivan@wc.com -- and Enu Maingini -- emainigi@wc.com Marc Mukasey -- marc.mukasey@bgllp.com -- of Bracewell & Giuliani, who represents Ms. Mairone, said he was "quite optimistic" about the prospects for a successful appeal. "Remember, the government's case was built on the testimony of a witness who was a willing participant in the High Speed Swim Lane process and who, unbeknownst to us during trial, will recover $58 million dollars for turning on his former colleagues," Mr. Mukasey said. BARNES & NOBLE: Violates Disabilities Act, "Mielo" Suit Claims -------------------------------------------------------------- Christopher Mielo, individually and on behalf of all others similarly situated v. Barnes & Noble, Inc., Case No. 2:15-cv- 00148-CRE (W.D. Pa., February 4, 2015) alleges violations of the Americans with Disabilities Act. The Plaintiff is represented by: R. Bruce Carlson, Esq. CARLSON LYNCH 115 Federal Street, Suite 210 Pittsburgh, PA 15212 Telephone: (412) 322-9243 E-mail: bcarlson@carlsonlynch.com BEAUVAIS LTEE: Recalls Granny Smith Apples & Gala Apples -------------------------------------------------------- Starting date: January 7, 2015 Type of communication: Recall Alert sub-type: Updated Food Recall Warning Subcategory: Microbiological - Listeria Hazard classification: Class 1 Source of recall: Canadian Food Inspection Agency Recalling firm: Beauvais Ltee., Courchesne Larose Distribution: Ontario, Quebec Extent of the product distribution: Retail CFIA reference number: 9575 The food recall warning issued on Dec. 24, 2014 has been updated to include additional product information. Industry is recalling Granny Smith apples and Gala apples exported by Bidart Bros. in the United States (US) from the marketplace due to possible Listeria monocytogenes contamination. Identified importers of the recalled products include Beauvais Ltee. and Courchesne Larose. Consumers should not consume and retailers, restaurants and institutions should not sell or use the recalled products. Furthermore, recalled products were imported by and sold at Coosemans Montreal Inc., located at 1605 rue de Beauharnois Ouest, Montreal, QC. BLOOMBERG LP: Removes "Harutyunyan" Suit to N.D. California ----------------------------------------------------------- The lawsuit entitled Harutyunyan v. Bloomberg L.P., et al., Case No. CGC-14-543337, was removed from the Superior Court of the State of California for the County of San Francisco to the U.S. District Court for the Northern District of California (San Francisco). The District Court Clerk assigned Case No. 3:15-cv- 00388-EDL to the proceeding. The Plaintiff is Armenian and his national origin/ancestry is Armenia. The Plaintiff brings the action to obtain relief and damages under California law and alleges certain causes of action, including National Origin/Ancestry Discrimination, Disability/ Medical Condition Discrimination and Harassment and Hostile Work Environment. The Plaintiff is represented by: John Akopian, Esq. JOHN AKOPAIN & ASSOCIATES 1101 E. Broadway, Suite 200 Glendale, CA 91205 Telephone: (818) 244-0050 Facsimile: (818) 244-0051 E-mail: john@akopianlaw.com The Defendants are represented by: Margaret A. Keane, Esq. DLA PIPER LLP (US) 555 Mission Street, Suite 2400 San Francisco, CA 94105-2933 Telephone: (415) 836-2500 Facsimile: (415) 836-2501 E-mail: margaret.keane@dlapiper.com - and - Yin Zheng, Esq. DLA PIPER LLP (US) 2000 University Ave. East Palo Alto, CA 94303-2214 Telephone: (650) 833-2000 Facsimile: (650) 833-2001 E-mail: lily.zheng@dlapiper.com BRIDGE TRANSPORT: Trial in "Hoa" Case Set for February 2016 ----------------------------------------------------------- District Judge Edward M. Chen of the Northern District of California approves the parties' joint case management and proposed order in the case PAUL HOA, an individual, Plaintiff, v. RICHARD RILEY, an individual; RONALD CHAN, an individual; DAVID MOORE, an individual; RAYMOND MATTEUCCI, an individual; THOMAS ALIOTO, an individual; GEORGE MOON, an individual; TAMMY FOSS, an individual, DAVID F. LOPEZ, an individual; T. GREGORY STAGNITTO, an individual; BRIDGE TRANSPORT, an entity of unknown form; STAG LEASING, INC., a California corporation; and DOES 1 to 20, Inclusive. Defendants, Case No. 3:12-CV-02078-EMC (N.D. Cal.) The plaintiff Paul Hoa was a prisoner in the custody of California Department of Corrections and Rehabilitation (CDCR). Plaintiff was expected to be paroled in April 2012. Plaintiff, as part of his prison work duties, was working between a raised loading dock and commercial containers trucks at Waterfront Warehouse, without any reasonable safety precautions. On July 27, 2011, plaintiff met an accident while performing the dangerous task of opening the doors on the container prior to it approaching the raised loading dock, surged towards him in moments. Plaintiff was crushed between the back of the container and the raised loading dock. As a result, plaintiff was pinned against the wall by the commercial vehicle, which continued to back up as the driver was unaware that plaintiff was pinned. Plaintiff suffered permanent and catastrophic injuries to his spinal column at the neck, leaving him permanently paralyzed from the neck down. Plaintiff also suffered a fractured jaw, severed nerves, crushed tissue, and deep lacerations. Plaintiff sued T. Gregory Stagnitto, Bridge Transport, Stag Leasing, Inc. and David F. Lopez, the driver of the vehicle for negligence. Plaintiff filed a workers' compensation action and the Claim number is 05721930. Defendants Bridge Transport, LLC, Stag Leasing, David F. Lopez, and T. Gregory Stagnitto dispute liability for the incident and contend that fault rests exclusively with plaintiff, CDCR, State of California, State employees, and potentially other unknown entities/persons. State defendants Richard Riley, Thomas Alioto, Tammy Foss, George Moon, David Moore, Ronald Chan, and Raymond Matteucci disputes liability for the incident and contend that fault rests exclusively with Plaintiff, Bridge Transport, LLC, Stag Leasing, David F. Lopez, and T. Gregory Stagnitto, and potentially other unknown entities/persons. The parties jointly submit a Joint Case Management Statement and proposed order pursuant to the Standing Order for All Judges of the Northern District of California and Civil Local Rule 16-9. Judge Chen approved the Joint Case Management Statement and Proposed Order as the Case Management Order for the case and re- set the case management for January 2, 2015. The Joint CMC statement was due January 22/2015, or the court has adopted and affirmed this schedule: "Action Plaintiff Defendant State Defendant Non-State ADR completion date October 30, 2015 Expert Witness disclosure Supplemental expert disclosure Discovery cut off Pretrial motion cut off November 2, 2015 Filing of Joint Pretrial January 26, 2016 conference statement due 21 days before Joint Pretrial Conference date Lodging of Exhibits January 26, 2016 Serving and filing brief January 26, 2016 of disputed issues of law: Procedural and evidence Serving Jury January 26, 2016 Instructions and proposed findings of fact Serving and filing January 26, 2016 statements from designating information from discovery Objections due January 26, 2016 proposed information from discovery or evidence Final Pretrial February 16, 2016 Conference (Tuesday at 2:30 PM) Trial Date (Thursday is February 22, 2016 dark)" A copy of Judge Chen's approved case management order dated December 5, 2014, is available at http://is.gd/EkCpzgfrom Leagle.com. Gene H. Shioda, James A. Kim, Jason Y. Lie, LAW OFFICE OF GENE H. SHIODA, Los Angeles, California, Attorneys for PLAINTIFF PAUL HOA. John F. Geary, Raymond J. Fullerton, Robert W. Henkels, GEARY, SHEA, O'DONNELL, GRATTAN, AND MITCHELL, Santa Rosa, CA, Attorneys for David F. Lopez, T. Gregory Stagnitto, Bridge Transport Stag Leasing, Inc. KAMALA D. HARRIS, Attorney General of California, MARISA Y. KIRSCHENBAUER, Supervising Deputy Attorney General, EDWARD R. FLUET, MANEESH SHARMA, Deputy Attorney General, San Francisco, CA, Attorneys for R. Riley, T. Alioto, T. Foss, G. Moon, D. Moore, R. Chan, and R. Matteucci. C.H. ROBINSON: Bid to Compel Arbitration in "Poublon" Case Denied ----------------------------------------------------------------- Lorrie Poublon filed a putative class action against C.H. Robinson Company, C.H. Robinson Worldwide, Inc., and Does 1 through 50 on June 13, 2012. Defendants removed the action to federal court on August 1, 2012. Plaintiff filed the operative First Amended Complaint ("FAC") on September 7, 2012. Plaintiff alleges that defendants, her former employers, misclassified her and other employees as exempt from overtime pay requirements. The FAC asserts claims under California's Unfair Competition Law, Cal. Bus. & Prof. Code Sections 17200, et seq., and several provisions of the California Labor Code. Plaintiff brings these claims on behalf of herself and a class of similarly situated employees, as well as on behalf of the State of California pursuant to the Private Attorneys General Act ("PAGA"), California Labor Code Sections 2698, et seq. On November 5, 2012, defendants filed a motion to compel arbitration of plaintiff's individual claims, stay this litigation, and dismiss plaintiff's class and representative allegations pursuant to the arbitration agreement. The plaintiff filed an opposition, arguing that the arbitration provision is unenforceable. District Judge Christina A. Snyder agreed with the plaintiff saying the arbitration agreement is unenforceable. Accordingly, the Court denies defendants' motion to compel arbitration, stay proceedings, and dismiss class and representative allegations and claims. A copy of the Court's January 12, 2015 ruling is available at http://is.gd/FLVPIyfrom Leagle.com. The case is LORRIE POUBLON v. C.H. ROBINSON COMPANY, ET AL., CASE NO. 2:12-CV-06654-CAS(MANX), (C.D. Cal.). Piya Mukherjee Attorneys Present for Plaintiffs. Christopher Decker -- christopher.decker@ogletreedeakins.com -- Jack Sholkoff -- jack.sholkoff@ogletreedeakins.com -- Attorneys Present for Defendants. CALIFORNIA: Court Okays Class Settlement With Auditors ------------------------------------------------------ Courthouse News Service reports that a federal judge on Jan. 26 approved settlement of 255 auditors' overtime lawsuit against the (California) State Compensation Insurance Fund, with $304,000 in attorneys' fees and expenses. The Plaintiffs are represented by: Mary-Alice Coleman, Esq. Michael S. Ahmad, Esq. LAW OFFICE OF MARY-ALICE COLEMAN 1109 Kennedy Place, Suite #2 Davis, CA 95616 Telephone: (916) 498-9131 Facsimile: (916) 304-0880 E-mail: lawoffice@maryalicecoleman.com mike.ahmad@lawofficemac.com - and - Harvey Sohnen, Esq. Patricia Kelly, Esq. LAW OFFICES OF SOHNEN & KELLY 2 Theatre Square, Suite 230 Orinda, CA 94563-3346 Telephone: (925)258-9300 Facsimile: (925) 258-9315 The Defendant is represented by: Brandon R. McKelvey, Esq. MEDINA MCKELVEY LLP 983 Reserve Dr. Roseville, CA 95678 Telephone: (916) 960-2211 Facsimile: (916) 742-5151 E-mail: brandon@medinamckelvey.com - and - Mark P. Grajski, Esq. Julie G. Yap, Esq. SEYFARTH SHAW LLP 400 Capitol Mall, Suite 2350 Sacramento, CA 95814 Telephone: (916) 498-7025 E-mail: mgrajski@seyfarth.com jyap@seyfarth.com The case is Andrea Sewell, Conrad Silva, and Edith Viera, individually and on behalf of all others similarly situated v. State Compensation Insurance Fund, Case No. 3:13-cv-00588-TEH, in the U.S. District Court for the Northern District of California (San Francisco Division). CALIFORNIA: Bryd's Writ of Habeas Corpus Petition Dismissed ----------------------------------------------------------- Magistrate Judge Barbara A. McAuliffe dismissed state prisoner Kenneth R. Bryd's petition for writ of habeas corpus without leave to amend. Mr. Bryd alleges that his claim comes within the Coleman v. Brown litigation and that he is a member of the class. The Coleman v. Brown lawsuit (Case No. 2:90-cv-00520-LKK-JFM, E.D. Cal.) is a class action involving prison conditions. Defendants include the California Department of Corrections and Rehabilitation, California Department of Mental Health, and the State of California. Plaintiffs in the case refer to "All inmates with serious mental disorders who were or would be confined within the California Department of Corrections." On review, Judge McAuliffe opined that Bryd's petition is premature because he has not obtained a decision from the California Supreme Court on his claim. Therefore, Petitioner failed to meet his burden to establish exhaustion of state court remedies, the judge held. Accordingly, the petition will be dismissed without prejudice for failure to exhaust state court remedies, the judge ruled. The District Court also declined to issue a certificate of appealability on the Bryd matter. The Court Clerk is directed to close the case because dismissal will terminate the proceeding in its entirety. The case is KENNETH R. BYRD, Petitioner, v. DAVE DAVIES, Respondent, Case No. 1:14-CV-02022-BAM-HC (E.D. Cal.). A copy of the District Court's Jan. 21, 2015 is available for free at http://is.gd/Y0xrVefrom Leagle.com. CALIFORNIA: Judge Rejects Inmate's Equal Protection Claim --------------------------------------------------------- District Judge Ralph R. Beistline denied Plaintiff's Motion for Reconsideration in the case captioned ROBERT COLEMAN, Plaintiff, v. CALIFORNIA DEPARTMENT OF CORRECTIONS and REHABILITATION, et al., Defendants Case No. 1:11-cv-01587-RRB (E.D. Cal.). Coleman is state prisoner who filed a motion for reconsideration of the Court's Order dismissing his complaint without leave to amend by arguing that (1) because he is a member of a class action brought against officials of the State, he is a member of a protected class within the scope of the Fourteenth Amendment and (2) the Court erred in not permitting him to amend to correct the deficiencies in his Complaint. In denying Coleman's motion, Judge Beistline held that the mere fact that a plaintiff may properly be a member of the class bringing a class action lawsuit does not also make that person a member of a protected class within the scope of the Fourteenth Amendment. To be a member of a class for the purpose of a class action lawsuit, the person need only hold a claim that involves questions of law and fact common to the class and is typical of the class as a whole. In rejecting Coleman's equal protection claim, Judge Beistline determined that Coleman was neither a member of a protected class for the purpose of the Fourteenth Amendment nor, under the facts pleaded, was he being treated differently than other similarly situated prisoners. Nothing in Coleman's motion addresses the determination, let alone meets the requirement for reconsideration. Moreover, nothing in the clinical documentation provided, whether originally or in conjunction with the pending motion, comes close to establishing that the Court's prior disposition was clearly erroneous and, if uncorrected, would work a manifest injustice. A copy of the Order dated December 9, 2014, is available at bit.ly/1vPBu0D from Leagle.com. CARRIER IQ: Bulk of Spying Claims vs. Smartphone Makers Dismissed ----------------------------------------------------------------- William Dotinga at Courthouse News Service reports that a federal judge has dumped the bulk of a sprawling class action accusing smartphone makers of installing software that spies on customers, logs keystrokes and other data, sends information to telecom providers and drains batteries -- in violation of federal and state wiretap laws. Carrier IQ and various telecoms were hit in 2011 with a raft of class actions alleging that it used a device called IQRD to access smartphones while hiding its presence and subverting standard operating system functions or other applications. A consolidated amended class action in San Francisco federal court alleges violations of the Federal Wiretap Act, the Computer Fraud and Abuse Act, and the Stored Communications Act, as well as multiple federal and state-law warranty and consumer-protection claims. Carrier IQ agreed in principle to settle the class action this past November, leaving smartphone makers HTC, Huawei, LG and Samsung on the hook. The manufacturers moved to dismiss the action this past summer, arguing that consumers had failed to show that information had been illegally acquired and that the smartphone makers had only installed Carrier IQ on the phones and sold them. In a 96-page ruling issued Jan. 21, U.S. District Judge Edward Chen agreed that none of the manufacturers -- save HTC -- had ever received customers' text messages or data from Internet searches. And in HTC's case, receipt of text messages through an error- reporting tool on Android operating systems was not intentional as required to prove federal wiretap law violations, the judge said. Instead, the plaintiffs only showed that smartphone makers provided a conduit through which cellular providers and Carrier IQ could intercept data -- by making the phones. "Plaintiffs have failed to cite any case that would support the imposition of Wiretap Act liability on a party who merely provided a means through which a third party subsequently intercepts communications," Chen wrote. "To the contrary, authority has consistently rejected such a theory of liability." Chen also dismissed most of the state-law eavesdropping and data- protection claims, but afforded the plaintiffs another chance to make their case with more specificity. And he declined to address the issue of standing -- with claims brought under 35 state laws by named plaintiffs from 13 different states -- until the group brings forth more plaintiffs from states not currently represented. "The court has reservations of subjecting the device manufacturers to the expense and burden of nationwide discovery without plaintiffs first securing actual plaintiffs who clearly have standing and are willing and able to assert claims under these state laws," Chen wrote. Plaintiffs have until March 23 to find new representatives and file a third amended complaint, the judge concluded. The multidistrict litigation is captioned In re Carrier IQ, Inc., Consumer Privacy Litigation, Case No. C-12-md-2330 EMC, in the U.S. District Court for the Northern District of California. CARRINGTON MORTGAGE: Faces "Santos" Class Suit in New Jersey ------------------------------------------------------------ Pedro Santos, on behalf of himself and all others similarly situated v. Carrington Mortgage Services, LLC, American Modern Insurance Group, American Modern Home Insurance Company, Midwest Enterprises, Inc. d/b/a Ameritrac Business Solutions, and Southwest Business Corporation, Case No. 2:15-cv-00864-WHW-CLW (D.N.J., February 4, 2015) is brought over alleged breach of contract. The Plaintiff is represented by: Roosevelt N. Nesmith, Esq. LAW OFFICE OF ROOSEVELT N. NESMITH, LLC 363 Bloomfield Avenue, Suite 2C Montclair, NJ 07042 Telephone: (973) 259-6990 Facsimile: (866) 848-1368 E-mail: roosevelt@nesmithlaw.com CHRYSLER: Recalls Multiple Vehicle Models ----------------------------------------- Starting date: January 6, 2015 Type of communication: Recall Subcategory: Car, Light Truck & Van, SUV Notification type: Service Campaign Mfr System: Airbag Units affected: 258600 Source of recall: Transport Canada Identification number: 2015003 TC ID number: 2015003 Chrysler Canada is conducting a voluntary Safety Improvement Campaign concerning the driver's airbag inflator on certain vehicles equipped with Takata airbags. Chrysler Canada will replace the driver's inflator on affected vehicles. This action is not being conducted under the requirements of the Motor Vehicle Safety Act. Affected products: Maker Model Model year(s) affected ----- ----- ---------------------- DODGE CHARGER 2005, 2006, 2007 CHRYSLER ASPEN 2007 DODGE MAGNUM 2005, 2006, 2007 DODGE RAM 2004, 2005, 2006, 2007 DODGE DAKOTA 2004, 2005, 2006, 2007 DODGE DURANGO 2004, 2005, 2006, 2007 CHRYSLER 300 2005, 2006, 2007 CLARK COUNTY, NV: 12 Constables and Servers Challenge Mass Firing ----------------------------------------------------------------- In a federal class action, 12 deputy constables and process servers say Clark County officials conspired to abolish the Las Vegas Township Constable's Office and fire them unconstitutionally, reports Mike Heuer at Courthouse News Service. Lead plaintiff Austin Dowd claims that the class of deputy constables and process servers are "victims of what can only be properly termed as a systematic 'shakedown' and conspiracy against the elected constable perpetrated by defendants under the pretext of authority and enforcement of an unconstitutional statute, NRS 258.010(3), (3)(b)." The statute allows a county board of commissioners to determine if a township constable is necessary and to appoint a replacement when there is a township constable vacancy. The Clark County Board of Commissioners in March 2013 voted to abolish the constable's office. The vote came after a reality TV pilot episode depicted "foul-mouthed deputies," conflicts with county officials over financial matters and jurisdictional arguments with other constables, the Las Vegas Review Journal reported. Constable John Bonaventura challenged the commission's decision in Clark County Court but lost. He claimed the commission had violated the Open Meetings Act by agreeing before its March meeting to abolish the office to get rid of him, and intended to restore it afterward, the Review Journal reported. In the new lawsuit, filed Jan. 23, Dowd "seeks redress for the defendants' unlawful oppression under color of law, due process and civil rights violations." He says "oppression" includes violations of Nevada's Peace Officers Bill of Rights, which requires cause to remove a peace officer. He seeks class certification declaratory judgment that NRS 258.010(3), (3)(b) is unconstitutional, and an injunction. He claims that Bonaventura's removal cost the plaintiffs "meaningful constitutional property interests in their employment and pay," in violation of the Fourth, Fifth and 14th Amendments, and that the commissioners and other county officials conspired to remove Bonaventura and keep him off the November ballot, which caused his term as constable to end on Jan. 4. "It is this very conspiracy," Dowd says, that deprived the class of "substantial constitutionally protected interests in their employment and income without due process rights." The Clark County Board of Commissioners and Las Vegas Metropolitan Police Department announced on Jan. 2 that the constable's office would become part of the police department's Detention Services Division. Dowd says the deputy constables and process servers received emails from the police department stating that they no longer were qualified for employment based on undisclosed issues with their backgrounds, and that none were notified of any cause for their removal, as required by Nevada law. The Plaintiff is represented by: Robert B. Pool, Esq. ROBERT B. POOL, PC 7472 W. Sahara Ave., Suite 102B Las Vegas, NV 89117 Telephone: (702) 834-5602 Facsimile: (702) 834-5601 COMPLETE PAYMENT: Class Allegations Stricken in "Zarichny" Case --------------------------------------------------------------- In the case, SANDRA ZARICHNY v. COMPLETE PAYMENT RECOVERY SERVICES, INC et al., CIVIL ACTION NO. 14-3197, (E.D. Penn.), District Judge Stewart Dalzell ruled on defendants' motion to dismiss and/or strike plaintiff Sandra Zarichny's first amended complaint and the defendants' motion for leave to file a reply brief. Specifically, Judge Dalzell ordered that: 1. Defendants' motion for leave to file a reply brief is granted; 2. Defendants' motion to dismiss is granted in part and denied in part; 3. Defendants' motion to dismiss defendant Fidelity National Information Services (FIS) is granted; 4. Defendants' motion to dismiss plaintiff's claim against defendant Complete Payment Recovery Services, Inc. (CPRS) pursuant to the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. Section 227 et seq., is denied; 5. Defendants' motion to dismiss plaintiff's claim against CPRS pursuant to the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. Sections 1692c, 1692d, and 1692f is granted; 6. Defendants' motion to dismiss plaintiff's claim against CPRS pursuant to the FDCPA, 15 U.S.C. Sections 1692g, is denied; 7. Defendants' motion to strike plaintiff's class action allegations is granted; 8. Parties must jointly inform the Court whether they agree that settlement discussions before the Honorable Jacob P. Hart would likely be productive; and 9. Further scheduling will abide the parties' communication. A copy of the Court's order dated on January 21, 2015, is available at http://is.gd/yvw8mJfrom Leagle.com. SANDRA ZARICHNY, Plaintiff, represented by ARKADY ERIC RAYZ -- erayz@kalraylaw.com -- KALIKHMAN & RAYZ LLC & GERALD D. WELLS III -- gwells@cwg-law.com -- CONNOLLY WELLS & GRAY, LLP. COMPLETE PAYMENT RECOVERY SERVICES, INC., Defendant, represented by GERALD E. ARTH -- garth@foxrothschild.com -- FOX ROTHSCHILD O'BRIEN & FRANKEL LLP, JOSHUA HORN -- jhorn@foxrothschild.com -- FOX ROTHSCHILD O'BRIEN & FRANKEL LLP & NICHOLAS T. SOLOSKY -- nsolosky@foxrothschild.com -- FOX ROTHSCHILD LLP. COOSEMANS MONTREAL: Recalls Granny Smith Apples & Gala Apples ------------------------------------------------------------- Starting date: January 9, 2015 Type of communication: Recall Alert sub-type: Updated Food Recall Warning Subcategory: Microbiological - Listeria Hazard classification: Class 1 Source of recall: Canadian Food Inspection Agency Recalling firm: Beauvais Ltee., Coosemans Montreal Inc., Courchesne Larose, Fruits et Legumes Gaetan Bono Inc. Distribution: New Brunswick, Newfoundland and Labrador, Nova Scotia, Ontario, Prince Edward Island, Quebec Extent of the product distribution: Retail CFIA reference number: 9575 The food recall warning issued on January 8, 2015 has been updated to include additional information. This additional information was identified during the Canadian Food Inspection Agency's (CFIA) food safety investigation. Industry is recalling Granny Smith apples and Gala apples exported by Bidart Bros. in the United States (US) from the marketplace due to possible Listeria monocytogenes contamination. Identified importers of the recalled products include Beauvais Ltee., Courchesne Larose, Coosemans Montreal Inc. and Fruits et Legumes Gaetan Bono Inc. Consumers should not consume and retailers, restaurants and institutions should not sell or use the recalled products. Check to see if you have recalled products. Recalled products should be thrown out or returned to the location where they were purchased. If you are unsure as to whether products are included in this recall, contact the location where they were purchased. Food contaminated with Listeria monocytogenes may not look or smell spoiled but can still make you sick. Symptoms can include vomiting, nausea, persistent fever, muscle aches, severe headache and neck stiffness. Pregnant women, the elderly and people with weakened immune systems are particularly at risk. Although infected pregnant women may experience only mild, flu-like symptoms, the infection can lead to premature delivery, infection of the newborn or even stillbirth. In severe cases of illness, people may die. PHAC is monitoring the US outbreak investigation. For more information see the Public Health Notice issued by PHAC dated Dec. 28, 2014. The recall was triggered by a recall initiated by the US producer which may be related to a foodborne illness outbreak. The CFIA is working with its federal partners, the Public Health Agency of Canada (PHAC) and Health Canada, and the United States Food and Drug Administration and is conducting a food safety investigation, which may lead to the recall of other products. If other high- risk products are recalled, the CFIA will notify the public through updated Food Recall Warnings. The CFIA is verifying that industry is removing recalled product from the marketplace. DELBERT SERVICES: Hayes et al., Compelled to Arbitration -------------------------------------------------------- Borrowers from Internet payday lender Western Sky Financial, LLC, led by James Hayes commenced an action on behalf of themselves and others similarly situated against Delbert Services Corporation, a third-party debt collector. Hayes, et al., allege that Delbert violated the Fair Debt Collection Practices Act (FDCPA) and the Telephone Consumer Protection Act (TCPA) in the course of its collection efforts. Delbert moved to dismiss based on the Loan Agreements' forum- selection clause or on the basis of the tribal exhaustion doctrine. Alternatively, Delbert moved to compel arbitration. In an Jan. 21, 2015 Opinion available at http://is.gd/KapO6Gfrom Leagle.com, District Judge John A. Gibney, Jr., granted the motion to compel arbitration under the terms of the Loan Agreement and dismissed the claims without prejudice. The judge opines that the arbitration agreement controls the present dispute between the plaintiffs and Delbert. James Hayes, Plaintiff, represented by Dale Wood Pittman -- dale@pittmanlawoffice.com -- The Law Office of Dale W. Pittman, P.C., Andrew Joseph Guzzo -- aguzzo@kellyandcrandall.com -- Kelly & Crandall PLC, Casey Shannon Nash -- casey@clalegal.com -- Consumer Litgation Associates PC, James Wilson Speer, Virginia Proverty Law Center, Kristi Cahoon Kelly -- kkelly@kellyandcrandall.com -- Kelly & Crandall PLC, Leonard Anthony Bennett -- leonard@clalegal.com -- Consumer Litigation Associates, Matthew James Erausquin -- matt@clalegal.com -- Consumer Litgation Associates PC & Susan Mary Rotkis -- susan@clalegal.com -- Consumer Litigation Associates. Debera Grant, Plaintiff, represented by Dale Wood Pittman, The Law Office of Dale W. Pittman, P.C., Andrew Joseph Guzzo, Kelly & Crandall PLC, Casey Shannon Nash, Consumer Litgation Associates PC, James Wilson Speer, Virginia Proverty Law Center, Kristi Cahoon Kelly, Kelly & Crandall PLC, Leonard Anthony Bennett, Consumer Litigation Associates, Matthew James Erausquin, Consumer Litgation Associates PC & Susan Mary Rotkis, Consumer Litigation Associates. Herbert White, Plaintiff, represented by Andrew Joseph Guzzo, Kelly & Crandall PLC, Casey Shannon Nash, Consumer Litgation Associates PC, Dale Wood Pittman, The Law Office of Dale W. Pittman, P.C., Matthew James Erausquin, Consumer Litgation Associates PC, Susan Mary Rotkis, Consumer Litigation Associates & Kristi Cahoon Kelly, Kelly & Crandall PLC. Delbert Services Corporation, Defendant, represented by Julie Moore Carpenter -- jcarpenter@jenner.com -- Jenner & Block LLP & Brian Jason Fischer -- bfischer@jenner.com -- Jenner & Block. ENDO HEALTH: Removes "Mahaffay" Class Suit to N.D. California ------------------------------------------------------------- The class action lawsuit captioned Mahaffay v. Endo Health Solutions Inc., et al., Case No. HG14752254, was removed from the Superior Court of the State of California for the County of Alameda to the U.S. District Court for the California Northern District (Oakland). The District Court Clerk assigned Case No. 4:15-cv-00387-DMR to the proceeding. The lawsuit is brought on behalf of a proposed class of end- payors, who indirectly purchased, reimbursed or otherwise paid for all dosage strengths of extended release oxymorphone hydrochloride tablets, which Endo has sold under the brand name Opana ER and which Actavis and Impax have sold in generic form. Opana ER is used to treat moderate to severe pain in patients requiring continuous around-the-clock opioid treatment for an extended period. The Plaintiff is represented by: Joseph R. Saveri, Esq. Andrew M. Purdy, Esq. James Dallal, Esq. Ryan J. McEwan, Esq. JOSEPH SAVERI LAW FIRM, INC. 505 Montgomery Street, Suite 625 San Francisco, CA 94111 Telephone: (415) 500-6800 Facsimile: (415) 395-9940 E-mail: jsaveri@saverilawfirm.com apurdy@saverilawfirm.com jdallal@saverilawfirm.com rmcewan@saverilawfirm.com Defendants Endo Health Solutions Inc. and Endo Pharmaceuticals Inc. are represented by: Joshua D.N. Hess, Esq. DECHERT LLP One Bush Street, Suite 1600 San Francisco, CA 94104 Telephone: (415) 262-4500 Facsimile: (415) 262-4555 E-mail: joshua.hess@dechert.com Defendants Actavis, Inc. and Actavis South Atlantic LLC are represented by: James P. Schaefer, Esq. SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 525 University Avenue Palo Alto, CA 94301 Telephone: (650) 470-4500 Facsimile: (650) 470-4570 E-mail: james.schaefer@skadden.com Defendant Impax Laboratories, Inc. is represented by: Susan Harriman, Esq. Benedict Hur, Esq. KEKER & VAN NEST LLP 633 Battery Street San Francisco, CA 94111 Telephone: (415) 391-5400 Facsimile: (415) 397-7188 E-mail: sharriman@kvn.com bhur@kvn.com - and - Kenneth R. O'Rourke, Esq. Anna Fabish, Esq. Stephen McIntyre, Esq. O'MELVENY & MYERS LLP 400 South Hope Street Los Angeles, CA 90071 Telephone: (213) 430-6000 Facsimile: (213) 430-6407 E-mail: korourke@omm.com afabish@omm.com smcintyre@omm.com ENTERPRISE HOLDINGS: "Garcia" Suit May Be Amended in 21 Days ------------------------------------------------------------ Plaintiffs have 21 days to amend a federal class action accusing Zimride and Lyft of selling customers' personal information to marketers, or it will be dismissed with prejudice, a federal judge ruled on January 23, according to Courthouse News Service. The case is Miguel Garcia, individually and on behalf of all others similarly situated v. Enterprise Holdings, Inc., d/b/a Zimride, a Missouri corporation, and Lyft Inc., a Delaware corporation, Case No. 4:14-cv-00596-SBA, in the U.S. District Court for the Northern District of California (Oakland Division). EQUIFAX INFORMATION: Sued for Violating Fair Credit Reporting Act ----------------------------------------------------------------- Anthony Rivera, on behalf of himself and all others similarly situated v. Equifax Information Services, LLC, Experian Information Solutions, Inc. and Trans Union LLC, Case No. 1:15-cv- 00137-CKK (D.D.C., January 27, 2015) alleges violations of the Fair Credit Reporting Act. The Plaintiff is represented by: Jeffery Warren Styles, Esq. THE WASHINGTON LEGAL GROUP, LLC 1990 M Street, NW, Suite 200 Washington, DC 20036 Telephone: (202) 503-1708 Facsimile: (202) 503-1708 E-mail: jstyles@washlegal.com EQUIFAX INFORMATION: Cannot Reduce Information in Random Sampling ----------------------------------------------------------------- Accused of reporting released water liens as unpaid, Equifax Information Services cannot reduce how much information it must provide in a random sampling of 100 customers, a federal judge ruled, according to Courthouse News Service. The case is Albert C. Ceccone v. Equifax Information Services, LLC, Case No. 13-1314 (KBJ/AK), in the U.S. District Court for the District of Columbia. FEDERAL EXPRESS: "Minor" Wrongful Termination Suit Dismissed ------------------------------------------------------------ District Judge Lucy h. Koh granted a motion to dismiss in its entirety, without leave to amend, the case GARY MINOR, Plaintiff, v. FEDEX OFFICE AND PRINT SERVICES, INC., FEDERAL EXPRESS CORPORATION, and DOES 3 to 50, Defendants, CASE NO. 14-CV-01117- LHK, (N.D. Cal.). Mr. Minor filed this action against his former employer, FedEx Office, as well as Federal Express Corporation. He asserts five claims under California's Fair Employment and Housing Act ("FEHA"), Cal. Gov. Code Sections 12900 et seq., and a sixth claim for wrongful termination in violation of public policy. In his order entered January 16, 2015, a copy of which is available at http://is.gd/c8xdV2 from Leagle.com, Judge Koh held that "the Court previously granted Minor leave to amend to allege (1) that Minor exhausted administrative remedies as to his FEHA claims; and (2) additional facts indicating that either the general release provision did not bar Minor's wrongful termination claim, or that FedEx Office obtained Minor's consent to the general release provision by fraud or misrepresentation. Minor has failed to correct any of these defects. Nor does Minor, in his opposition, claim that he could allege additional facts to salvage his claims. Therefore, granting leave to amend would likely be futile. Accordingly, all of Minor's claims are dismissed with prejudice." Gary Minor, Plaintiff, represented by Barbara Emily Cowin Figari -- barbara@figarilaw.com -- The Figari Law Firm. Fedex Office and Print Services, Inc., Defendant, represented by Brooke Sikora Purcell -- brooke.purcell@ogletreedeakins.com -- Ogletree Deakins Nash Smoak & Stewart, P.C. & Gregory Clement Cheng -- gregory.cheng@ogletreedeakins.com -- Ogletree Deakins Nash Smoak & Stewart, P.C. FINISH LINE: "Arreola" Suit Moved From N.D. Cal. to C.D. Cal ------------------------------------------------------------ District Judge Lucy H. Koh granted Finish Line's Motion to Transfer in the case captioned HERIBERTO ARREOLA, an individual, on behalf of himself, and all others similarly situated, Plaintiff, v. THE FINISH LINE, Defendant, Case No. 14-CV-03339- LHK) (N.D. Cal.). Finish Line is a retailer of athletic shoes, apparel, and accessories, with its headquarters in Indiana. Arreola, a former hourly employee of The Finish Line, being a Sales Lead, filed an action in Santa Clara Superior Court, alleging wage and hour violations under various provisions of the California Labor Code and Business and Professions Code. Arreola alleges that, among others, Finish Line failed to pay regular and overtime wages; failed to compensate its hourly employees for certain tasks; and failed to maintain adequate time records and itemized wage statements. Finish Line removed Arreola's complaint to the Northern District of California based on three reasons: (1) Arreola's complaint meets the requirements of Class Action Fairness Act because Arreola seeks to represent a class of over 100 individuals; (2) a labor class action lawsuit regarding wages, hours, or working conditions is preempted by the National Labor Relations Act; (3) the Court has diversity jurisdiction because Arreola and Finish Line are citizens of different states, and Arreola's individual claim puts at least $75,000 at issue. Arreola filed a motion to remand the action back to state court. Finish Line filed a motion to transfer venue to the Central District of California. In his Order granting Finish Line's Motion to Transfer, District Judge Koh ruled that Finish Line has carried its burden to show that it would be more convenient for non-party witnesses to testify in the Central District and in light of the fact that Arreola is not a resident of the Northern District, his claim stems from conduct that did not occur in this District, and that Arreola seeks to bring a class action on behalf of individuals dispersed throughout the state, the Court accords Arreola's choice of forum minimal deference. Moreover, Judge Koh held that Finish Line has shown by a preponderance of the evidence that Arreola's claim for unpaid wages and overtime satisfies CAFA's minimum amount-in-controversy requirement. Hence, denied Arreola's motion to remand. A copy of the Order dated December 9, 2014, is available at bit.ly/1BNp5T8 from Leagle.com. Heriberto Arreola, Plaintiff, represented by Eric B. Kingsley -- eric@kingsleykingsley.com -- Kingsley & Kingsley, APC, Liane Katzenstein Ly -- liane@kingsleykingsley.com -- Kingsley & Kingsley, APC & Sahag Majarian, II, Law Office of Sahag Majarian II. The Finish Line, Inc.,, Defendant, represented by Scott J. Witlin -- Scott J. Witlin - switlin@akingump.com -- Barnes & Thornburg, LLP, Steve Lou Hernandez, Barnes & Thornburg LLP & Tiffany L Koenig -- tiffany.koenig@jacksonlewis.com -- BARNES and THORNBURG LLP. FORD: Recalls MKC Model Over Defective Powertrain Control Module ---------------------------------------------------------------- Starting date: January 9, 2015 Type of communication: Recall Subcategory: SUV Notification type: Safety Mfr System: Powertrain Units affected: 2033 Source of recall: Transport Canada Identification number: 2015007 TC ID number: 2015007 Manufacturer recall number: 14S29 On certain vehicles equipped with Push-to-Start/Stop (PTS) switch located at the bottom of the transmission shift controls, the switch could be inadvertently actuated, unintentionally causing the engine to shut off. An inadvertent actuation of the PTS switch would result in an audible chime through the radio speakers and a "Vehicle Switched Off" message on the vehicle information display. If the PTS switch is inadvertently actuated while driving, the restraint system may not perform as intended during a crash, which would increase the risk of injury and/or property damage. Dealers will reprogram the powertrain control module (PCM), and replace the Gear Shift Module (GSM), which relocates the PTS switch. Affected products: 2015 Lincoln MKC GENERAL ELECTRIC: Opt-In Plaintiffs Not Required to Arbitrate ------------------------------------------------------------- Senior District Judge Joseph E. Irenas of the New Jersey federal district court denied defendant's Motion to Compel Arbitration in the lawsuit MADDY v. GENERAL ELECTRIC COMPANY. The Defendant sought to compel arbitration of claims asserted by two opt-in Plaintiffs, Jeremy Gifford and Jesse Guerra, who are not represented by unions. The District Court finds that Gifford and Guerra are not "Covered Employees" under GE's "Solutions" program -- an alternative dispute resolution procedure -- and therefore not bound by the Solutions procedure. The complaint is DONALD MADDY, KURT FREDRICK, FREDRICK R. SHELLHAMMER, III, FRANK MICHIENZI, MARIO LAUREANO, ANOTHONY CHELPATY, WILLIAM MADDEN, STEVEN LE BLANC, JEFFREY SCOTT WILKERSON, JEFFREY NACARETTE, PHILLIP ERIC BENSON, BRADLEY PALMER, THOMAS KISS, Individually, and on behalf of all others similarly situated, Plaintiffs, v. GENERAL ELECTRIC COMPANY, a New York corporation, Defendant, Civil Action No. 14-0490 (JEI/KMW) (D. N.J.). Plaintiffs, service technicians for General Electric Company's Appliances Division, brought the putative collective action pursuant to Sec. 216(b) of the Fair Labor Standards Act (FLSA) to recover allegedly unpaid overtime compensation from Defendant. A copy of the District Court's Jan. 21, 2015 Opinion is available at http://is.gd/g1ed0Bfrom Leagle.com. Counsel for Plaintiffs: SWARTZ SWIDLER, LLC Justin L. Swidler, Esq. Richard S. Swartz, Esq. 1101 Kings Hwy N, Suite 402 Cherry Hill, NJ 08034 Tel: (856) 685-7420 Fax: (856) 685-7417 - and - ROBERT D. SOLOFF, P.A., Robert D. Soloff, Esq. -- soloffpa@bellsouth.net -- Plantation, Florida. - and - ALLEN EICHENBAUM, Allen Eichenbaum, Esq., Plantation, Florida. Counsel for Defendant General Electric Company are: LITTLER MENDELSON, P.C., Nina Markey, Esq. -- nmarkey@littler.com , Rachel Fendell Satinsky, Esq. -- rsatinsky@littler.com , Aaron Reed, Esq. (pro hac vice) -- areed@littler.com , Daniel B. Boatright, Esq. (pro hac vice) -- dboatright@littler.com , Philadelphia, Pennsylvania. GENERAL MOTORS: Recalls Cobalt, G5 and Pursuit Models ----------------------------------------------------- Starting date: January 9, 2015 Type of communication: Recall Subcategory: Car Notification type: Safety Mfr System: Steering Units affected: 1988 Source of recall: Transport Canada Identification number: 2015010 TC ID number: 2015010 Manufacturer recall number: 14115 Certain vehicles equipped with electric power steering may experience a sudden loss of power steering assist that could occur at any time while driving. If the power steering assist is lost, a message is displayed on the Driver Information Centre and a chime sounds to inform the driver. Steering control can be maintained, as the vehicle will revert to a manual steering mode, but will require greater driver effort. The sudden change in steering may increase the risk of a crash causing injury and/or property damage. Dealers will affect repairs as necessary. Note: This recall is an expansion of recall 2014-104 for vehicles that may have received defective parts through prior servicing for recall 2010-059. Affected products: Maker Model Model year(s) affected ----- ----- ---------------------- PONTIAC PURSUIT 2005, 2006 CHEVROLET COBALT 2005, 2006, 2007, 2008, 2009, 2010 PONTIAC G5 2007, 2008, 2009, 2010 GODADDY.COM INC: Summary Judgment Order in "Harris" Upheld ---------------------------------------------------------- Toby Harris, a former employee of defendant GoDaddy.Com, Inc., appeals the superior court's decision granting GoDaddy's motion for summary judgment on Harris's claims related to his employment termination. Finding no error, the Court of Appeals of Arizona affirms the superior court order. GoDaddy hired Harris in November 2009 as a sales and support representative. In February 2010, GoDaddy dismissed Harris for security breaches that violated GoDaddy's policies. One of the breaches occurred when Harris transmitted to his personal e-mail account a "CRM screenshot" depicting confidential information regarding Harris's sales over a ten-day period. Harris and other plaintiffs filed a putative class action in superior court, alleging (in one federal law claim and various Arizona law claims) GoDaddy failed to compensate them for overtime work and pay bonuses, and as to Harris, wrongfully terminated him. The case is TOBY HARRIS, Plaintiff/Appellant, v. GODADDY.COM, INC., an Arizona corporation, Defendant/Appellee, Case No. 1-CA- CV-14-0151. Judge Michael J. Brown delivered the decision of the Court, in which Presiding Judge Samuel A. Thumma and Judge Patricia A. Orozco joined. A copy of the Court's Jan. 22, 2015 is available at http://is.gd/YZQH0Ifrom Leagle.com. Toby Allen Harris, Phoenix, Plaintiff/Appellant in Propria Persona. BurnsBarton LLP, Phoenix, By David T. Barton -- David@burnsbarton.com , C. Christine Burns -- Christine@burnsbarton.com , Benjamin J. Naylor -- Ben@burnsbarton.com , Counsel for Defendant/Appellee. GOOGLE INC: Sued Over Automatic Renewal of Google Drive Plan ------------------------------------------------------------ Google fails to make consumers aware that paid subscriptions to its data-storage service Drive are renewed automatically, a class action alleges, reports Barbara Leonard, writing for Courthouse News Service. Eric Mayron, the North Hollywood-based lead plaintiff behind the complaint filed in Santa Clara County Superior Court, says he has been paying for Google Drive since 2014. Though Google offers 15 gigabytes of Google Drive storage for free, subscribers can upgrade their memberships to store more files by purchasing a storage plan, according to the Jan. 23 complaint. The two most basic paid subscription plans run $1.99 a month for 100 GB and $9.99 a month for a terabyte. But Mayron says Google failed to clearly present the terms of its automatic renewal offer, and charges the credit or debit cards of its subscribers every month without affirmative consent. Google also fails to provide subscribers with acknowledgement that includes the offer terms for continuous service, or a cancelation policy and information regarding how to cancel, according to the complaint. The terms are buried in a "vague and ambiguous" Terms of Service agreement for Google Wallet, the company's service for storing credit card information, Mayron says. "These Google Wallet Terms of Service are accessible via an inconspicuous hyperlink at the bottom of the Google Wallet webpage," the complaint states. "The font of the hyperlink itself is smaller and lighter in color than the remainder of the website. In addition, the disclosures that are actually provided are hidden in the lengthy, 30-page, densely-worded, single-spaced Google Wallet Terms of Service. And the disclosures are buried in the middle of the Google Wallet Terms of Service itself." Mayron says Google failed within its TOS pages to state its continuous-service terms "in clear and conspicuous language, i.e., in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from the surrounding text of the same size by symbols or other marks, in a manner that clearly calls attention to the language." The complaint goes on to describe an online-checkout odyssey that never mentions "the automatic renewal offer terms or continuous service offer terms." "After plaintiff and class members clicked on the 'buy' hyperlink, plaintiff's and class members' storage plans commenced and defendant charged plaintiff's and class members' payment method on a recurring, monthly basis," the complaint states. "The disclosures that defendant made on the above-shown 'review your purchase' page are in smaller font than the rest of the 'review your purchase page' for the item and price descriptions." Mayron says the failure "to present the automatic renewal offer terms, or continuous service offer terms, in a clear and conspicuous manner before the subscription or purchasing agreement was fulfilled and in visual proximity to the request for consent to the offer" violates the California Business & Professional Code. The complaint notes that Google Drive, available via Google Apps, had 190 million monthly active users as of June 2014, a rise of 85 percent in the past year. Google, valued at $400 billion as of July 2014, reports that 8 percent of Fortune 500 companies used Google Drive, according to the complaint. Mayron wants to represent a class of California residents who bought subscriptions to Google Drive since April 24, 2012, the date that Google launched the service. He seeks restitution and injunction for such violations and unfair competition. The Plaintiff is represented by: Todd Seaver, Esq. BERMAN DEVALERIO One California Street, Suite 900 San Francisco, CA 94111 Telephone: (415) 433-3200 Facsimile: (415) 433-6382 E-mail: tseaver@bermandevalerio.com HEALTH CANADA: Recalls LX1 Due to Undeclared Substance ------------------------------------------------------ Starting date: December 30, 2014 Type of communication: Foreign Product Alert (FPA) Subcategory: Natural health products Source of recall: Health Canada Source of alert: United States Food and Drug Administration These products are not authorized for sale in Canada and have not been found in the Canadian marketplace, but it is possible they may have been brought into the country by travellers or purchased over the Internet. LX1 is promoted for weight loss. The United States Food and Drug Administration (FDA) warned consumers not to use this product after it was found to contain undeclared 1,3-dimethylamylamine (DMAA). DMAA is a drug that is not approved for sale in Canada. Side effects associated with DMAA include high blood pressure, shortness of breath, chest pain, stroke and psychiatric disorders. Health Canada advises Canadians to contact the Health Products and Food Branch Inspectorate at 1-800-267-9675 if they find the products in the Canadian marketplace. Canadians who have these products are advised not to use them, and should consult with a healthcare professional if they have concerns about their health related to the use of these products. IC SYSTEM: Accused of Violating Fair Debt Collection Act in N.Y. ---------------------------------------------------------------- Nathan Spira, on behalf of himself and all similarly situated consumers v. I.C. System, Inc., Case No. 1:15-cv-00412 (E.D.N.Y., January 27, 2015) accuses the Defendant of violating the Fair Debt Collection Practices Act. The Plaintiff is represented by: Adam Jon Fishbein, Esq. ADAM J. FISHBEIN, ATTORNEY AT LAW 483 Chestnut Street Cedarhurst, NY 11516 Telephone: (516) 791-4400 Facsimile: (516) 791-4411 E-mail: fishbeinadamj@gmail.com IKEA U.S.A.: Class in "Yeoman" Suit Decertified ----------------------------------------------- District Judge Cynthia Bashant of the Southern District of California granted defendant's motion to decertify the class in the case REID YEOMAN, ET AL., Plaintiffs, v. IKEA U.S.A. WEST, INC., Defendant, CASE NO. 11-CV-00701-BAS(BGS) (S.D. Cal.) Plaintiff Reid Yeoman initiated a complaint against defendant Ikea U.S. West, Inc. (IKEA), in the Superior Court of California for the County of San Diego, containing a claim for violations of the Song-Beverly Credit Card Act of 1971. The case was removed to the Southern District of California court by the defendant. Plaintiff subsequently filed a first amended class action complaint and added plaintiff Rita Medellin. Plaintiff filed a motion for class certification. The motion was granted on May 4, 2012. IKEA subsequently moved to decertify the class, which the court granted in part. The parties agreed to a bench trial before the Court. The Court granted IKEA's motion in limine to bifurcate the liability phase on plaintiff's class action claim from the damages phase. The proceedings on the liability phase took place on November 12-13, 2014. The Court heard and weighed the testimony and evidence presented by plaintiff. Following plaintiff's presentation of evidence in the liability phase of the trial, IKEA moved for judgment on partial findings pursuant to Rule 52(c) of the Federal Rules of Civil Procedure, or, in the alternative, to decertify the class. Judge Bashant granted IKEA's motion to decertify the class. As the class has been decertified, IKEA's motion pursuant to Rule 52(c) for judgment on partial findings as to the class is moot. However, Ikea's Rule 52(c) motion is denied as to plaintiff. Plaintiff has established liability as to her transactions. The damages phase of the trial on plaintiff's individual claim was set for January 27, 2015. A copy of Judge Bashant's order dated December 4, 2014, is available at http://is.gd/0CgEDxfrom Leagle.com Reid Yeoman, Plaintiff, represented by Gene J. Stonebarger -- gstonebarger@stonebargerlaw.com -- at Stonebarger Law, APC; Leslie E. Hurst -- lhurst@bholaw.com -- Paula M. Roach -- proach@bholaw.com -- Thomas Joseph O'Reardon, II -- toreardon@bholaw.com -- Timothy Gordon Blood -- tblood@bholaw.com -- at Blood Hurst & O'Reardon LLP Rita Medellin, Plaintiff, represented by Elaine W. Yan -- Gene J. Stonebarger -- gstonebarger@stonebargerlaw.com -- Richard D. Lambert -- rlambert@stonebargerlaw.com -- at Stonebarger Law, AP; Hallie Von Rock -- hallievonrock@yahoo.com -- at Aiman-Smith & Marcy; and Timothy Gordon Blood -- tblood@bholaw.com -- at Blood Hurst & O'Reardon LLP Ikea U.S.A. West, Inc., Defendant, represented by Ashkan Matthew Soleimanpour -- Kenneth Shoji Kawabata -- ksk@manningllp.com -- at Manning & Kass Ellrod Ramirez Trester LLP; Jill S. Casselman -- jscasselman@rkmc.com -- Michael A Geibelson -- mageibelson@rkmc.com -- at Robins Kaplan Miller and Ciresi. INTERTEK: Recalls Certain Crane Brand Wi-Fi Infrared Heaters ------------------------------------------------------------ Starting date: December 31, 2014 Posting date: December 31, 2014 Type of communication: Consumer Product Recall Subcategory: Tools and Electrical Products Source of recall: Health Canada Issue: Electrical Hazard Audience: General Public Identification number: RA-43083 Affected products: Crane brand Wi-Fi Infrared Heaters The recall involves Crane brand Wi-Fi infrared heaters manufactured by Wachsmuth & Krogmann. The heaters are identified by model EE-8077xxxxx, where "x" means A-Z, 0-9, symbols or blanks spaces. The date codes included in this recall are 0814, 0914 and 1014. The infrared heater bears an unauthorized ETLus and cETLus Certification Mark. It is unknown if this product is in compliance with the applicable safety standard. Additionally, the label on the product references incorrect Standards, cautionary markings are missing from the product and cautionary markings are missing from the cordset. Health Canada has not received any reports of consumer incidents or injuries related to the use of this product. Approximately 2,500 units were distributed to Wachsmuth & Krogmann facilities in the United States, along with 483 units to unknown US locations; however, some units may have been sold in Canada. The units were manufactured in China and sold from August 2014 to October 2014 at various retailers. Companies: Manufacturer Wachsmuth & Krogmann Hamburg Germany Consumers should immediately stop using the recalled infrared heaters. J & G TRANSPORT: Fails to Sink "Collado" TILA Suit -------------------------------------------------- Magistrate Judge Goodman of the Southern District of Florida, Miami Division, declined to dismiss the case ENRIQUE COLLADO, and others similarly situated, Plaintiffs, v. J. & G. TRANSPORT, INC. et al., Defendants, Case No. 14-80467-CIV-GOODMAN (S.D. Fla.) Plaintiffs Enrique Collado and Juan Giron were employed by defendant J & G Transport Inc. as truck drivers. J & G Transport is a Florida corporation that transports garbage, debris, mulch, sugar, sugar cane, and molasses exclusively within the State of Florida. Collado filed his amended complaint alleging that defendant failed to pay him and other similarly situated employees the overtime rate for hours worked over forty hours a week and/or a minimum wage, in violation of the Fair Labor Standards Act, 29 U.S.C. Section 201, et seq., he was later joined by Giron as named plaintiffs. Collado and Giron allege that J & G Transport intentionally misclassifies all of its truck drivers as independent contractors. Plaintiffs further allege that all similarly situated truck drivers routinely work more than forty hours per week and are not paid overtime or a minimum wage. Plaintiffs amended their joint statement of claim, stating that Collado is owed $4.078.12 in unpaid overtime wages, and $2,805.00 for unpaid minimum wages. Giron allegedly is owed $2,966.40 for unpaid overtime. Giron does not have an unpaid minimum wage claim. Magistrate Judge Goodman issued an order granting a motion for conditional class certification on October 23, 2014. That Order required, among other things, that defendants provide plaintiffs with an excel spreadsheet detailing certain contact information of putative class members no later than November 7, 2014. Defendants instead filed on November 6, a Motion to Dismiss and Stay Discovery. Two days later, plaintiffs filed an Expedited Motion to Compel production of the list of putative class members. Magistrate Judge Goodman denied defendant's motion to dismiss and granted plaintiffs' motion to compel discovery. Defendants were to provide plaintiffs, in excel format, with a list of names, addresses, telephone numbers, fax numbers, e-mail addresses and dates of birth of all putative class members on or before December 10, 2014 and potential opt-in, similarly situated plaintiffs must consent to opt into this litigation no later than February 9, 2015 and those opt-in notices must be filed with the Court no later than February 16, 2015. A copy of Magistrate Judge Goodman's order dated December 5, 2014, is available at http://is.gd/DRWnJdfrom Leagle.com. Juan Giron, Enrique Collado, and others similarly situated, Plaintiffs, represented by, Christopher Francisco Zacarias -- czacarias@zacariaslaw.com -- at Law Offices of Christopher F. Zacarias, P.A. Defendants, represented by Charles Robert Pickett -- rpickett@taylorattorneys.net -- at Taylor & Associates, Attorneys at Law, P.L. KELLOGG CANADA: Recalls MorningStar Farms Spicy Black Bean Burger ----------------------------------------------------------------- Starting date: January 9, 2015 Type of communication: Recall Alert sub-type: Food Recall Warning (Allergen) Subcategory: Allergen - Peanut Hazard classification: Class 1 Source of recall: Canadian Food Inspection Agency Recalling firm: Kellogg Canada Inc. Distribution: Alberta, British Columbia, Manitoba, New Brunswick, Nova Scotia, Ontario, Quebec, Saskatchewan Extent of the product distribution: Hotel/Restaurant/InstitutionalCFIA reference number: 9591 Affected products: 48 count (93 g) MorningStar Farms Spicy Black Bean Burger KENT'S MEAT: Faces "Duckworth" Suit Alleging Job Discrimination --------------------------------------------------------------- Theresa Duckworth, on behalf of herself, all others similarly situated, and the general public, and as an "aggrieved employee" on behalf of other "aggrieved employees" under the Labor Code Private Attorneys General Act of 2004 v. Kent W. Pfrimmer, Kent's Meat & Groceries, Inc., a California Corporation and Jerry Wobbe, Case No. 2:15-cv-00292-TLN-CMK (E.D. Cal., February 4, 2015) asserts claims arising from alleged job discrimination. The Plaintiff is represented by: David Glenn Spivak, Esq. THE SPIVAK LAW FIRM 9454 Wilshire Boulevard, Suite 303 Beverly Hills, CA 90212 Telephone: (310) 499-4730 Facsimile: (310) 499-4739 E-mail: david@spivaklaw.com LES PLATS: Recalls Cuisines Adventures Mini Sausages ---------------------------------------------------- Starting date: January 2, 2015 Type of communication: Recall Alert sub-type: Notification Subcategory: Extraneous Material Hazard classification: Class 3 Source of recall: Canadian Food Inspection Agency Recalling firm: Les Plats du Chef Inc. Distribution: National Extent of the product distribution: Retail CFIA reference number: 9558 Affected products: 1.2 kg. Cuisine Adventures Mini Sausages with Best Before 2015AU16 / 3534 LOS ANGELES, CA: Ruling Over Document Production Affirmed --------------------------------------------------------- Justice Earle Jeffrey Burke, Judge of the Superior Court of San Luis Obispo County, assigned by the Chief Justice pursuant to art. 6, Sec. 6 of the Cal. Const., affirmed a trial court judgment over document production in the case captioned ESTUARDO ARDON, Plaintiff and Respondent, v. CITY OF LOS ANGELES, Defendant and Appellant, No. 2d Civil No. B252476 (Cal. App.). Ardon claimed that the City of Los Angeles improperly collected a Telephone Users Tax ('TUT') excluding from taxation all services not subject to taxation under a similar Federal Excise Tax ('FET'). Further, he contended that the TUT was tied to the scope of the federal tax and that the City did not have legal authority to collect taxes on long distance telephone service charged solely by the minute and that the 2007 amendment was illegal because it expanded an excise tax that required approval by a majority of voters. Rachele R. Rickert, Ardon's counsel, requested from the City documents pertaining to the subject matter of the complaint which was eventually given to the former after paying the required payment. The City demanded from Ms. Ricket to return the documents to the City asserting that it had been inadvertently produced in response to the request but the latter declined to do so contending that the City had waived any claim of privilege. The City moved to compel the return of the three documents claimed to be privileged and to disqualify Ms. Rickert. However, the trial court denied the City's motion concluding that the City's production of the documents in response to Ms. Rickert's Public Records Act (PRA) request waived any privilege that previously attached to the records whether or not the document production was the product of mistake, inadvertence or excusable neglect. The City filed an appeal. In affirming the trial court's judgment, Justice Burke ruled that the City's position finds no support in the statute or the legislative history that surrounds the enactment of the PRA, and held that disclosures pursuant to the PRA that are made inadvertently, by mistake or through excusable neglect are not exempted from the provisions of section 6254.5 that waive any privilege that would otherwise attach to the production. Further, Justice Burke held that nothing in the PRA gives the entity producing it either the right to recover it or a mechanism to seek its return. Furthermore, because the documents were disclosed to Ms. Rickert, the City is precluded from denying disclosure to anyone who asks. Also, there is no basis to disqualify her or any members of her law firm under Rule of Professional Conduct 2-100. A copy of the Order dated December 10, 2014, is available at bit.ly/1Aat3Bt from Leagle.com. Colantuono, Highsmith & Whatley, Holly O. Whatley -- hwhatley@chwlaw.us -- Amy C. Sparrow -- asparrow@chwlaw.us -- Tiana J. Murillo -- tjm@msk.com -- Office of the City Attorney, Noreen S. Vincent, Beverly A. Cook -- Beverly.Cook@lacity.org -- for Defendant and Appellant. Dennis J. Herrera, San Francisco City Attorney, Christine Van Aken -- christine.van.aken@sfgov.org -- Chief of Appellate Litigation and Warren Metlitzky, Deputy City Attorney for Amicus Curiae The League of California Cities and the California State Association of Counties on behalf of Defendant and Appellant. Wolf Haldenstein Adler Freeman & Herz, Francis M. Gregorek, Rachele R. Rickert, Marisa C. Livesay; Chimicles & Tikellis, Timothy N. Mathews; Cuneo Gilbert & Laduca, Sandra W. Cuneo; Tostrud Law Group, Jon A. Tostrud for Plaintiff and Respondent. LOUISVILLE DISTILLING: Removes "Aliano" Suit to N.D. Illinois ------------------------------------------------------------- The lawsuit titled Aliano, et al. v. Louisville Distilling Company, LLC, Case No. 2014 CH 17428, was transferred from the Circuit Court of Cook County, Illinois, to the U.S. District Court for the Northern District of Illinois (Chicago). The District Court Clerk assigned Case No. 1:15-cv-00794 to the proceeding. The Plaintiffs allege that the Defendant's marketing and advertising of Angel's Envy Rye Whiskey Finished in Caribbean Rum Casks is "intentionally false and misleading." The Plaintiffs purport to bring this action on behalf of "[a]ll persons and entities who purchased a bottle or bottles of Angel's Envy." The Plaintiffs are represented by: Thomas A. Zimmerman, Jr., Esq. Adam M. Tamburelli, Esq. Frank J. Stretz, Esq. ZIMMERMAN LAW OFFICES, P.C. 77 West Washington St., Suite 1220 Chicago, IL 60602 Telephone: (312) 440-0020 Facsimile: (312) 440-4180 - and - Francis A. Citera, Esq. Thomas E. Dutton, Esq. GREENBERG TRAURIG, LLP 77 W. Wacker Drive, Suite 3100 Chicago, IL 60601 Telephone: (312) 456-8400 Facsimile: (312) 456-8435 E-mail: citeraf@gtlaw.com duttont@gtlaw.com MAPLE LEAF: Recalls Schneiders Deli Best Blue Ribbon Bologna ------------------------------------------------------------ Starting date: December 31, 2014 Type of communication: Recall Alert sub-type: Notification Subcategory: Extraneous Material Hazard classification: Class 2 Source of recall: Canadian Food Inspection Agency Recalling firm: Maple Leaf Foods Inc. Distribution: Ontario, Quebec Extent of the product distribution: Retail CFIA reference number: 9550 Affected products: 4.8 kg. Schneiders - Deli Best Blue Ribbon Bologna MARVELL TECHNOLOGY: "Voss" Suit Dismissed With Leave to Amend ------------------------------------------------------------- Arvin Temkar, writing for Courthouse News Service, reports that a federal judge on January 26 dismissed a securities class action against semiconductor developer Marvell Technology Group. U.S. District Judge Lucy Koh granted Marvell's motion to dismiss the April 2014 lawsuit filed by lead plaintiff Lee Voss on behalf of company shareholders. Koh found the plaintiffs did not satisfy requirements for bringing derivative claims under the laws of Bermuda, where Marvell is incorporated. Koh also ruled that even if the plaintiffs could make a claim under Bermuda law, the shareholders' claimed injury was too speculative. The lawsuit stems from a 2014 judgment of $1.5 billion against Marvell for a patent infringement against Carnegie Mellon University. Marvell staff referred to their own chips as "coffee warmers" because of their ineffectiveness, and used Carnegie Mellon's technology without licensing it for nearly a decade, according to a Courthouse News report. The company sold more than 2 billion chips at a profit margin of more than $2 a chip using the university's technology. Named as defendants in the shareholders' lawsuit were company founders Sehat and Pantas Sutardja, Sehat's wife Weili Dai, and several members of the company's board. Voss et al. claimed the defendants made false and misleading statements to shareholders about the patent infringement and made money from revenue inflated by the scandal. They also claimed that the huge judgment could make it difficult for the company to pay dividends to shareholders. The company has continued to pay dividends to shareholders since the judgment, Koh noted in her order. The case is Lee Voss, et al. v. Marvell Technology Group, Ltd., et al., Case No. 14-CV-01581-LHK, in the U.S. District Court for the Northern District of California (San Jose Division). MCKESSON CORP: N.D. Cal. Judge Resolves Discovery Issues -------------------------------------------------------- Magistrate Judge Donna M. Ryu of the Northern District of California ruled on the joint discovery letter submitted by the parties in the case TRUE HEALTH CHIROPRACTIC, Plaintiff(s), v. McKESSON CORPORATION, Defendant(s), No. C-13-02219-JST (DMR) (N.D. Cal.) Plaintiffs brought a putative class action under the Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Prevention Act of 2005, 47 U.S.C. Section 227 (TCPA), challenging defendants' alleged practice of sending unsolicited facsimile advertisements, or so-called junk faxes. On November 13, 2014, the court held a hearing on the parties' three previous disputes and issued an order the following day compelling defendants to produce discovery after meeting and conferring with plaintiffs to narrow the scope of discovery. Plaintiffs moved to compel defendants to produce exemplars of all fax advertisements that did not include an opt-out notice that defendants sent during the class period. Plaintiffs also moved to compel documents showing that the recipients of fax advertisements sent by Defendants had given Defendants prior express permission to send those faxes, and to compel the production of documents containing information about recipients of the fax ads sent by Defendants during the class period, including their identities and fax numbers, and the dates and times they received transmissions. Magistrate Judge Ryu said the plaintiffs' proposal is reasonable in that it describes the relevant documents while also incorporating measures likely to reduce burden and weed out non- responsive documents. The court also found the information to be relevant to class certification issues, and further held that defendants' concerns about the recipients' confidential information are adequately addressed by the parties' protective order and therefore granted plaintiffs' motion to compel. A copy of Magistrate Judge Ryu's order dated December 5, 2014, is available at http://is.gd/b6lFINfrom Leagle.com. True Health Chiropractic Inc, an Ohio Corporation, Individually and as the Representative of a class of similarly situated persons, Plaintiff, represented by Robert C. Schubert -- rschubert@schubertlawfirm.com -- Willem F. Jonckheer -- wjonckheer@schubertlawfirm.com -- Dustin Lamm Schubert -- dschubert@schubertlawfirm.com -- at Schubert Jonckheer & Kolbe LLP; Brian John Wanca - Bwanca@andersonwanca.com -- Glenn L. Hara -- Ghara@andersonwanca.com -- Ross Michael Good -- Rgood@andersonwanca.com -- Ryan Michael Kelly -- Rkelly@andersonwanca.com -- at Anderson + Wanca; George Demetrios Jonson -- gjonson@mrjlaw.com -- Matthew Elton Stubbs -- mstubbs@mrjlaw.com -- at Montgomery Rennie Jonson McLaughlin Chiropractic Associates, Inc., Plaintiff, represented by Brian John Wanca -- Bwanca@andersonwanca.com -- Glenn L. Hara -- Ghara@andersonwanca.com -- Ross Michael Good -- Rgood@andersonwanca.com -- at Anderson + Wanca; Dustin Lamm Schubert -- dschubert@schubertlawfirm.com -- Willem F. Jonckheer -- wjonckheer@schubertlawfirm.com -- at Schubert Jonckheer & Kolbe LLP McKesson Corporation, Defendant, represented by Tyree P. Jones, Jr. -- tpjones@reedsmith.com -- Andrew Amoroso -- aamoroso@reedsmith.com -- David S. Reidy -- dreidy@reedsmith.com -- at Reed Smith LLP McKesson Technologies, Inc., Defendant, represented by Andrew Amoroso -- aamoroso@reedsmith.com -- Tyree P. Jones Jr. -- tpjones@reedsmith.com -- at Reed Smith, LLP UNITED STATES OF AMERICA, Intervenor, represented by Warren Metlitzky -- AskDOJ@usdoj.gov -- at United States Attorney MCKESSON CORP: Court Won't Split Discovery in "True Health" Suit ---------------------------------------------------------------- A California district court denied a motion to bifurcate discovery in the class action TRUE HEALTH CHIROPRACTIC INC v. McKESSON CORPORATION, CASE NO. 13-CV-02219-JST (N.D. Cal.). The lawsuit was commenced in 2013, where plaintiffs allege defendants sent to them unsolicited faxes in violation of the Telephone Consumer Protection Act (TCPA). Defendants asked the Court to bifurcate discovery so as to allow the parties to resolve whether the named class representatives, True Health Chiropractic Inc. and McLaughlin Chiropractic Associates, Inc., received unsolicited faxes (as opposed to solicited ones), and therefore whether they are able to represent a class of individuals, each of whom allegedly received unsolicited faxes. Defendants ask for a 45-day period in which to conduct discovery regarding the individual named plaintiffs and then to file a motion for partial summary judgment as to True Health and McLaughlin's adequacy as class representatives. Defendants effectively seek to stay class discovery during this period. In a Jan. 20, 2015 Order available at http://is.gd/OOpFkMfrom Leagle.com, District Judge Jon S. Tigar cites that (1) facts that are relevant to class determination overlap between individual and class discovery, (2) discovery bifurcation would not promote class certification at "an early practicable time," and (3) discovery bifurcation will not have streamlined anything or otherwise served the interest of judicial economy. Having weighed these factors, Judge Tigar finds that bifurcation of discovery at this time is not warranted. Accordingly, the Court denies Defendants' motion and orders the parties to proceed with both class and individual discovery. True Health Chiropractic Inc, Plaintiff, represented by Robert C. Schubert -- rschubert@schubertlawfirm.com -- Schubert Jonckheer & Kolbe LLP, Willem F. Jonckheer -- wjonckheer@schubertlawfirm.com -- Schubert Jonckheer & Kolbe LLP, Brian John Wanca -- BWanca@andersonwanca.com -- Anderson + Wanca, Dustin Lamm Schubert -- dschubert@schubertlawfirm.com -- Schubert Jonckheer & Kolbe LLP, George Demetrios Jonson -- gjonson@mrjlaw.com -- Montgomery Rennie Jonson, Glenn L. Hara, Anderson + Wanca, Matthew Elton Stubbs -- mstubbs@mrjlaw.com -- Montgomery Rennie Jonson, Ross Michael Good -- RGood@andersonwanca.com -- Anderson + Wanca & Ryan Michael Kelly -- RKelly@andersonwanca.com McLaughlin Chiropractic Associates, Inc., Plaintiff, represented by Brian John Wanca, Anderson + Wanca, Dustin Lamm Schubert, Schubert Jonckheer & Kolbe LLP, George Demetrios Jonson, Montgomery Rennie Jonson, Glenn L. Hara, Anderson + Wanca, Ross Michael Good, Anderson + Wanca & Willem F. Jonckheer, Schubert Jonckheer & Kolbe LLP. McKesson Corporation, Defendant, represented by Tyree P. Jones, Jr. -- tpjones@reedsmith.com -- Reed Smith LLP, Andrew Amoroso -- aamoroso@reedsmith.com -- Reed Smith LLP & David S. Reidy -- dreidy@reedsmith.com -- Reed Smith LLP. McKesson Technologies, Inc., Defendant, represented by Andrew Amoroso, Reed Smith LLP & Tyree P. Jones, Jr., Reed Smith, LLP. UNITED STATES OF AMERICA, Intervenor, represented by Warren Metlitzky, United States Attorney -- warren.metlitzky@sfgov.org NATIONAL FOOTBALL: NFL Retirees Ask 9th Cir. to Revive Class Suit ----------------------------------------------------------------- NFL retirees appealed to the 9th Circuit on January 27 to save their class action over painkillers allegedly doled out to mask serious injuries, reports Maria Dinzeo, writing for Courthouse News Service. Lead plaintiff Richard Dent, a former Chicago Bear, says the league treated players' injuries on the field for decades with nonprescription opioids, nonsteroidal anti-inflammatory drugs and local anesthetics, with little regard for the side effects or the players' medical histories. U.S. District Judge William Alsup dismissed the action in December 2014, finding the lawsuit must be settled under the collective bargaining agreements between the NFL and the players' union, as the crux of the claim is that players' teams mistreated them, and that the league did nothing to stop it. Alsup said the players' retired statuses should not prevent them from arbitrating their grievances, and cited the NFL's long history of trying to address player medical care through provisions in the collective bargaining agreements. Steven Silverman, an attorney for the retirees, said his clients' claims are not covered. "The tortious conduct as alleged in the second amended complaint is not something that is subject to a CBA under any circumstances," Silverman said in an interview. "These are allegations that the NFL Players Association clearly stated were not grieve able under the bargaining agreement." He added: "we believe there is precedent in the circuit which is consistent with our views and we're looking forward to briefing the issues." The Plaintiffs-Appellants are represented by: William N. Sinclair, Esq. Steven D. Silverman, Esq. Andrew G. Slutkin, Esq. Stephen G. Grygiel, Esq. Joseph F. Murphy, Jr., Esq. Phillip J. Closius, Esq. SILVERMAN THOMPSON SLUTKIN WHITE LLC 201 N. Charles St., Suite 2600 Baltimore, MD 21201 Telephone: (410) 385-2225 Facsimile: (410) 547-2432 E-mail: bsinclair@mdattorney.com ssilverman@mdattorney.com aslutkin@mdattorney.com sgrygiel@mdattorney.com JosephMurphy@mdattorney.com pclosius@mdattorney.com - and - Thomas J. Byrne, Esq. Mel T. Owens, Esq. NAMANNY, BYRNE & OWENS, P.C. 2 South Pointe Drive, Suite 245 Lake Forest, CA 92630 Telephone: (949) 452-0700 Facsimile: (949) 452-0707 E-mail: tbyrne@nbolaw.com mowens@nbolaw.com - and - Stuart A. Davidson, Esq. Mark J. Dearman, Esq. Kathleen B. Douglas, Esq. Janine D. Arno, Esq. 120 East Palmetto Park Road, Suite 500 Boca Raton, FL 33432 Telephone: (561) 750-3000 Facsimile: (561) 750-3364 E-mail: SDavidson@rgrdlaw.com mdearman@rgrdlaw.com kdouglas@rgrdlaw.com jarno@rgrdlaw.com The Defendant-Appellee is represented by: Allen J. Ruby, Esq. Jack P. DiCanio, Esq. Timothy A. Miller SKADDEN ARPS SLATE MEAGHER & FLOM LLP 525 University Avenue Palo Alto, CA 94301 Telephone: (650) 470-4500 Facsimile: (650) 470-4570 E-mail: allen.ruby@skadden.com jack.dicanio@skadden.com timothy.miller@skadden.com NGS INC: "McCown" Suit Remanded to Putnam County Circuit Court -------------------------------------------------------------- In STACEY F. McCOWN, individually and on behalf of all others similarly situated, Plaintiffs, v. NGS, INC., a West Virginia Corporation, NGS, INC., a West Virginia Corporation d/b/a BUDGET INN, NGS, INC., a West Virginia Corporation d/b/a AMERICAN INN, NAVNIT G. SANGANI, individually and as officer of NGS, INC., and John Doe Corporations, Defendants, CIVIL ACTION NO. 3:14-27719, (S.D. W.Va.), pending before the Court is Plaintiff's Motion to Remand for lack of subject matter jurisdiction pursuant to 28 U.S.C. Sections 1441 and 1447. On January 16, 2015, Chief District Judge Robert C. Chambers, in a memorandum opinion and order, ruled that Plaintiff's Motion to Remand is granted in part and denied in part. The Court granted Plaintiff's request to remand and denied Plaintiff's request for reasonable costs and attorney fees incurred as a result of Defendant's improper removal. The Court remands the matter to the Circuit Court of Putnam County, West Virginia. A copy of the Court's ruling is available at http://is.gd/5Pde2V from Leagle.com. Stacy F. McCown, Plaintiff, represented by: Matthew Stonestreet, Esq. Troy N. Giatras, Esq. THE GIATRAS LAW FIRM 118 Capitol Street, Suite 400 Charleston, WV 25301 Telephone: 888-819-1281 NGS, Inc., Defendant, represented by Patrick C. Timony -- ptimony@bowlesrice.com -- BOWLES RICE, Stuart A. McMillan -- smcmillan@bowlesrice.com -- BOWLES RICE, Patrick C. Timony, BOWLES RICE, Stuart A. McMillan, BOWLES RICE, Patrick C. Timony, BOWLES RICE & Stuart A. McMillan, BOWLES RICE. Navnit G. Sangani, Defendant, represented by Patrick C. Timony, BOWLES RICE & Stuart A. McMillan, BOWLES RICE. NGS, Inc., Defendant, represented by Patrick C. Timony, BOWLES RICE & Stuart A. McMillan, BOWLES RICE. NISOURCE CORPORATE: "Philibotte" TILA Suit Dismissed ---------------------------------------------------- District Judge Mark G. Mastroianni granted Defendant's Motion to Dismiss in the case captioned KIM PHILIBOTTE, individually and as a representative of other persons similarly situated, Plaintiff, v. NISOURCE CORPORATE SERVICES COMPANY, d/b/a Nisource Services Inc., d/b/a Bay State Gas Company, d/b/a Northern Utilities, Inc., d/b/a Columbia Gas of Massachusetts, and AGL RESOURCES INCORPORATED, d/b/a Nicor Energy Services Company, d/b/a Columbia Home Solutions, Defendants, Civil Action No. 14-11300-MGM (D. Mass.). Kim filed a putative class action against Nisource Corporate Services Company and AGL Resources Incorporated claiming that the purported lease of a water heater was actually a disguised credit sale and, therefore, Defendants were required to make certain disclosures under the Truth In Lending Act ("TILA"), the Massachusetts Consumer Credit Cost Disclosure Act ("CCCDA"), and the Massachusetts Retail Installment Sales and Services Act ("RISSA"). Also, Kim asserted claims for unjust enrichment and violations of Mass. Gen. Laws ch. 93A (Count IV). Defendants filed a Motion to Dismiss arguing that Plaintiff's complaint fails to state a claim upon which relief maybe granted pursuant to CCCDA, TILA, RISSA. In addition, Defendant alleged that the water heater lease was not a credit sale for purposes of CCCDA and TILA or a retail installment sale for purposes of RISSA. Further, Defendants argued that Plaintiff's unjust enrichment claim is not viable because of the existence of a contract. Plaintiff, in response, argued that unjust enrichment claims are available even though a contract exists if the contract is invalid due to fraud, misrepresentation, mistake, illegality, indefiniteness, or incapacity. Hence, Plaintiff contended that the contract falls within exceptions. In granting Defendants' Motion to Dismiss, Judge Mastroianni ruled that Kim failed to state claims pursuant to CCCDA, TILA, and RISSA and concluded that Kim's Chapter 93A claim is subject to dismissal. Judge Mastroianni held that although Kim contended that the agreement constitutes a fake lease, she did not set forth affirmative claims or allegations demonstrating that the contract is otherwise unenforceable due to freestanding fraud, misrepresentation, mistake, illegality, indefiniteness, or incapacity. Moreover, Judge Mastroianni agreed with Defendants that Kim has not sufficiently alleged that any of these unjust enrichment exceptions apply through the existence of an express contract which precluded Plaintiff's claim for unjust enrichment. A copy of the Memorandum and Order dated December 9, 2014, is available at bit.ly/1wxmyrZ from Leagle.com. Kim Philibotte, Plaintiff, represented by Valeriano Diviacchi -- val@diviacchi.com -- Diviacchi Law Office. Nisource Corporate Services Company, Defendant, represented by J. Christopher Allen, Jr. -- cpallen@sianalaw.com -- Nixon & Peabody, LLP, and Troy K. Lieberman, Nixon Peabody LLP. AGL Resources Inc., Defendant, represented by J. Christopher Allen, Jr., Nixon & Peabody, LLP, and Troy K. Lieberman, Nixon Peabody LLP. NORTHERN MEAT: Recalls Roland Bruschetta Due to Glass Pieces ------------------------------------------------------------ Starting date: December 30, 2014 Type of communication: Recall Alert sub-type: Notification Subcategory: Extraneous Material Hazard classification: Class 2 Source of recall: Canadian Food Inspection Agency Recalling firm: Northern Meat Service Distribution: Manitoba Extent of the product distribution: Hotel/Restaurant/Institutional CFIA reference number: 9553 Affected products: 340 g. Roland Bruschetta with 0 41224 46740 8 UPC NOVO NORDISK: Obtains Final Court Approval of Antitrust Suit Deal ----------------------------------------------------------------- District Judge Avern Cohn issued a final judgment approving the class action settlement in IN RE PRANDIN DIRECT PURCHASER ANTITRUST LITIGATION, C.A. NO. 2:10-CV-12141-AC-DAS, (E.D. Mich.). The class is defined as "All persons and entities in the United States and its Territories who purchased Prandin directly from Defendants from May 6, 2009 until the June 30, 2014. Excluded from the Class are Defendants and their parents, employees, subsidiaries, and affiliates, and all federal governmental entities." The Settlement provides a recovery for the class in the amount of $19 million in cash. The Court awards Class Counsel attorneys' fees in the amount of $6,333,000.00 or one third of the $19 million Settlement Fund, and approves reimbursement of $147,975.82 in expenses, which expenses were reasonable and necessary to the representation of the Class. The Class Representatives American Sales Company, LLC and Rochester Drug Co-Operative, Inc. are each granted an award of $50,000 each, payable from the Settlement Fund, for their role in bringing about this recovery on behalf of the Class. A copy of the Court's January 20, 2015 order is available at http://is.gd/oe7eFH from Leagle.com. American Sales Company, Inc., Plaintiff, represented by David S. Nalven -- davidn@hbsslaw.com -- Hagens Berman Sobol Shapiro LLP, J. Douglas Richards -- drichards@cohenmilstein.com -- Cohen Milstein Sellers & Toll PLLC & Patrick E. Cafferty -- pcafferty@caffertyclobes.com -- Cafferty Clobes Meriwether & Sprengel LLP. Rochester Drug Co-Operative, Inc., Plaintiff, represented by Archana Tamoshunas -- atamoshunas@tcllaw.com -- Taus, Cebulash & Landau, LLP, David F. Sorensen -- dsorensen@bm.net -- Berger & Montague, P.C., Patrick E. Cafferty, Cafferty Clobes Meriwether & Sprengel LLP & Peter R. Kohn -- pkohn@faruqilaw.com -- Faruqi & Faruqi, LLP. American Sales Company, Inc., Plaintiff, represented by J. Douglas Richards, Cohen Milstein Sellers & Toll PLLC & Patrick E. Cafferty, Cafferty Clobes Meriwether & Sprengel LLP. Novo Nordisk A/S, Defendant, represented by David A. Ettinger -- dettinger@honigman.com -- Honigman, Miller, Schwartz and Cohn LLP, David B. Tulchin -- tulchind@sullcrom.com -- Sullivan & Cromwell LLP, Herschel P. Fink -- hfink@freepress.com -- Detroit Free Fress, Marc De Leeuw -- deleeuwm@sullcrom.com -- Sullivan & Cromwell LLP, Michael S. Royall -- sroyall@gibsondunn.com -- Gibson, Dunn & Crutcher & Michael A. Sitzman -- msitzman@gibsondunn.com -- Gibson, Dunn & Crutcher LLP. Novo Nordisk, Incorporated, Defendant, represented by David A. Ettinger, Honigman, Miller, Schwartz and Cohn LLP, David B. Tulchin, Sullivan & Cromwell LLP, Herschel P. Fink, Detroit Free Fress, Michael S. Royall, Gibson, Dunn & Crutcher & Michael A. Sitzman, Gibson, Dunn & Crutcher LLP. Novo Nordisk A/S, Defendant, represented by David A. Ettinger, Honigman, Miller, Schwartz and Cohn LLP, David B. Tulchin, Sullivan & Cromwell LLP, Herschel P. Fink, Detroit Free Fress, Michael S. Royall, Gibson, Dunn & Crutcher & Michael A. Sitzman, Gibson, Dunn & Crutcher LLP. Novo Nordisk, Incorporated, Defendant, represented by David A. Ettinger, Honigman, Miller, Schwartz and Cohn LLP, David B. Tulchin, Sullivan & Cromwell LLP, Herschel P. Fink, Detroit Free Fress, Marc De Leeuw, Sullivan & Cromwell LLP, Michael S. Royall, Gibson, Dunn & Crutcher & Michael A. Sitzman, Gibson, Dunn & Crutcher LLP. NUVASIVE INC: "Mauss" Securities Fraud Suit Dismissed ----------------------------------------------------- District Judge Jeffrey T. Miller of the Southern District of California granted Defendant's Motion to Dismiss in the case captioned BRAD MAUSS, individually and on behalf of all other persons similarly situated, Plaintiff, v. NUVASIVE, INC.; ALEXIS V. LUKIANOV; KEVIN C. O'BOYLE; and MICHAEL J. LAMBERT, Defendants Case No. 13-cv-2005 JM (JLB) (S.D. Cal.). Plaintiff, a purchaser of NuVasive securities filed a putative class action against the Company but was eventually dismissed by the court for failure to state a claim and not meeting the heightened requirements for pleading falsity and scienter in a securities-fraud case. Plaintiff alleged that NuVasive failed to disclose the following: (1) that it used kickbacks in violation of federal and state laws and regulations; (2) that it submitted false or otherwise improper claims to Medicare and Medicaid; (3) that it advised customers on how to code NuVasive products and procedures in order to take advantage of loopholes and maximize reimbursement; and (4) that its earnings and revenues were earned, in part, as a result of violations of healthcare fraud and abuse laws. Plaintiff filed a second amended complaint asserting two causes of action: (1) securities fraud, in violation of Section 10(b) of the Securities Exchange Act of 1934 and Securities and Exchange Commission ("SEC") Rule 10b-5, against all Defendants; and (2) control-person liability, pursuant to Section 20(a) of the Securities Exchange Act. Further, Plaintiff alleges the Defendants engaged in these practices knowing that the resulting increases in sales and revenues would be paid, in part, by government healthcare programs, including Medicare and Medicaid. The Defendants moved for the dismissal of Plaintiff's Section 10(b) claim on the grounds that Plaintiff did not adequately plead loss causation, falsity, or scienter and asserted that dismissal should be without leave to amend because Plaintiff's case is fundamentally defective. Further, the Defendants contended that such is premised on the announcement of an investigation which cannot be the basis for loss causation, falsity, or scienter. In granting the Defendant's Motion to Dismiss, Judge Miller ruled that in the absence of some further disclosure to the market substantiating Plaintiff's allegations of fraud, Plaintiff has not adequately alleged loss causation. In addition, Judge Miller held that because Plaintiff has not adequately pleaded falsity, he has also not adequately pleaded scienter. However, Judge Miller granted Plaintiff's request for leave to amend because according to him, dismissal with prejudice and without leave to amend is not appropriate unless it is clear that the complaint could not be saved by amendment. A copy of the Order dated December 9, 2014, is available at bit.ly/16n17RO from Leagle.com. Danny Popov, Plaintiff, represented by Cheryl D. Hamer -- chamer@pomlaw.com -- Pomerantz LLP, Lionel Z Glancy -- info@glancylaw.com -- Glancy Binkow and Goldberg & Jeremy A. Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP. Brad Mauss, Plaintiff, represented by Cheryl D. Hamer, Pomerantz LLP, Lionel Z Glancy, Glancy Binkow and Goldberg, Michael M Goldberg, Glancy Blinkow & Goldberg LLP & Jeremy A. Lieberman, Pomerantz LLP. Nuvasive, Inc., Defendant, represented by Robert W Brownlie -- robert.brownlie@dlapiper.com -- DLA Piper LLP, Kellin Maurine Chatfield, DLA Piper LLP & Noah A Katsell -- nkatsell@graycary.com -- DLA Piper LLP. Alexis V. Lukianov, Defendant, represented by Robert W Brownlie, DLA Piper LLP, Kellin Maurine Chatfield, DLA Piper LLP & Noah A Katsell, DLA Piper LLP. Kevin C. O'Boyle, Defendant, represented by Robert W Brownlie, DLA Piper LLP, Kellin Maurine Chatfield, DLA Piper LLP & Noah A Katsell, DLA Piper LLP. Michael J. Lambert, Defendant, represented by Robert W Brownlie, DLA Piper LLP, Kellin Maurine Chatfield, DLA Piper LLP & Noah A Katsell, DLA Piper LLP. PALME D'OR: Recalls Duck Products Due to Container Issues --------------------------------------------------------- Starting date: January 7, 2015 Type of communication: Recall Alert sub-type: Notification Subcategory: Microbiological - Other Hazard classification: Class 3 Source of recall: Canadian Food Inspection Agency Recalling firm: Elevages Perigord (1993) Inc. Distribution: National Extent of the product distribution: Retail CFIA reference number: 9284 PAPA JOHNS: Court Struck Down Bid to Dismiss "Schojan" Suit ----------------------------------------------------------- District Judge Virginia M. Hernandez Covington of the Middle District of Florida, Tampa Division, denied defendant's motion to dismiss counts III, IV and V in the case BRUCE SCHOJAN, individually and on behalf of all others similarly situated, ET AL., Plaintiffs, v. PAPA JOHNS INTERNATIONAL, INC., ET AL., Defendants, Case No. 8:14-CV-1218-T-33MAP (M.D. Fla.) Bruce Schojan filed a suit against defendant Papa John's International, Inc., alleging that defendant negligently misrepresented a sales tax for food delivered to customers that included a sales tax on the Papa John's delivery fee. Plaintiff allege that Papa John's included in the base amount upon which the tax was calculated a $3.00 delivery fee that Plaintiff claims is exempt from taxation under Florida law because it is not part of the sales. The suit was filed in the state court but was removed by the defendant to the federal court. The parties filed agreed motions to seal the motion for summary judgment and motion for class certification. The court, however, denied the parties' request to seal documents. Plaintiff then filed a motion to certify class, in which the court denies without prejudice and granted plaintiff leave to amend the complaint and directed that the motion to certify class could be refiled in conjunction with the new complaint. Papa John's filed its response in opposition to the motion and simultaneously, Papa John's filed a motion to dismiss the Second Amended Class Action Complaint and Strike Demand for Injunctive and Declaratory Relief. Specifically defendant seeks to dismiss counts III, IV and V of the Second Amended Complaint. Judge Covington denied defendant's request for dismissal. The defendant's answer to the second amended complaint was due December 15, 2014. A copy of Judge Covington's order dated December 8, 2014, is available at http://is.gd/KhUKb6from Leagle.com. Bruce Schojan, Sean Timmons, Christopher Tollerton, individually and on behalf of all others similarly situated, Plaintiff, represented by: Alan Frederick Wagner, Esq. Jason Kyle Whittemore, Esq. WAGNER, VAUGHAN & MCLAUGHLIN, PA 601 Bayshore Blvd., Suite 910 Tampa, FL 33606 Telephone: 813-225-400 Facsimile: 813-225-4010 Papa John's International, Inc. and Papa John's USA, Inc., Defendants, represented by: Andrew J. Patch, Esq. David Barnett Weinstein, Esq. GREENBERG TRAURIG, LLP Court House Plaza 625 East Twiggs Street Tampa, FL 33602 Telephone: 813-318-5700 Facsimile: 813-318-5900 Email: patcha@gtlaw.com weinsteind@gtlaw.com Peter J. Grilli, Mediator, represented by: Peter John Grilli, Esq. PETER J. GRILLI, PA 3001 West Azeele Street Tampa, FL 33609 Telephone: 813-874-1002 PATRICK CUDAHY: "Rangel" Suit Stays in E.D. Wis. Federal Court -------------------------------------------------------------- District Judge Rudolph T. Randa of the Eastern District of Wisconsin denied plaintiff's request to remand the case MARTHA RANGEL, MARIA GUADALUPE MOLINA, ROXANA HERRARA, and ALICIA BEDOLLA, on behalf of themselves and similarly situated employees, Plaintiffs, v. PATRICK CUDAHY, LLC, Defendant, CASE NO. 14-C-799 (E.D. Wis.) The named plaintiffs seek to represent a class consisting of all current and former hourly production employees required to don and doff personal protection equipment (PPE) at the Patrick Cudahy processing plant in Cudahy, Wisconsin within two years preceding the filing of the action. The suit against Cudahy is for unpaid wages pursuant to Wisconsin's wage payment and overtime laws. Plaintiffs allege that there are 1,000 members of the putative class seeking overtime compensation. Plaintiffs do not allege how much time they are seeking compensation for, but Cudahy posits that it is reasonable to assume that plaintiffs seek at least 20 additional minutes of compensation each day. Using an average overtime rate over a two-year period brings the claim to just under $4 million; plaintiffs' claim for a 50% civil penalty pushes the claim over the requisite jurisdictional amount. Cudahy removed the suit from Milwaukee County Circuit Court and the plaintiffs move to remand. Cudahy's first ground for removal is that the plaintiffs' state law claims are completely preempted by Section 301 of the Labor Management Relations Act. Cudahy also removed pursuant to the Class Action Fairness Act (CAFA) 28 U.S.C. Section 1332(d); 28 U.S.C. Section 1453. For CAFA purposes, Lisa Swaney declared that Cudahy is a citizen of Delaware and Wisconsin. In her initial declaration, Swaney stated that there are multiple former employees who, according to their addresses on record with the Company, are in states other than Wisconsin and Delaware, including Arizona, Florida, Michigan, Mississippi, and Pennsylvania, as well as Puerto Rico. Swaney later clarified that those employees were employed within the two year period prior to the filing of this lawsuit. Finally, Swaney explained that all references to employees in her prior declarations included only hourly employees. Defendant filed a motion for leave to file the third Declaration of Swaney, while plaintiffs filed a motion to remand the case to Milwaukee County Circuit Court. Judge Randa granted defendant's motion and denied plaintiffs' motion to remand the case and plaintiffs must, within 60 days of the date of the order, they must file a motion to remand or a statement indicating that they will not be pursuing remand. A copy of Judge Randa's decision and order dated December 5, 2014, is available at http://is.gd/0uChgkfrom Leagle.com. Plaintiffs, represented by: Kurt C Kobelt, Esq. Victor M Arellano, Esq. ARELLANO & PHEBUS SC 1468 North High Point Road, Suite 202 Middleton, WI 53562 Telephone: 608-509-9374 Facsimile: 608-827-7681 Patrick Cudahy LLC, Defendant, represented by D. Christopher Lauderdale -- LauderdC@jacksonlewis.com -- L Dale Owens -- OwensD@jacksonlewis.com -- Brian A Price -- Brian.Price@jacksonlewis.com -- at Jackson Lewis PC. PGA TOUR: Caddies File Class Action Over Endorsement Policy ----------------------------------------------------------- Marisa Kendall, writing for The Recorder, reports that a group of professional golf caddies have taken aim at the PGA Tour in a class action claiming the organization forces them to serve as walking billboards without compensation. The caddies say PGA Tour Inc. violated federal antitrust law by making them wear colorful bibs that display advertisements for tournament sponsors. The bibs brings in about $50 million a year, according to the complaint filed in the Northern District of California on Feb. 3, but the caddies never see a penny. "It's essentially theft," said the caddies' lawyer, Eugene Egdorf of The Lanier Law Firm in Houston. "The caddies are making them millions upon tens of millions of dollars, and the PGA treats them like second-class citizens." A PGA Tour spokesman declined to comment on Feb. 3, citing company policy. The caddies are employed as contractors by the professional golfers they serve -- not by PGA Tour -- but they are governed by the company's endorsement policy. That policy allows caddies to wear and be compensated for sponsor logos on their clothing, as long as the logos are "in accordance with the standards of decorum expected of professional golf," according to the plaintiffs lawyers. Nevertheless, the lawyers say PGA Tour has threatened to prevent plaintiffs from caddying at tournaments unless they wear the pre-approved bibs, and has asked professional golfers if they would be willing to fire caddies who refused to wear the bibs. "Defendant constricts plaintiffs' endorsement potential and usurps plaintiffs' endorsement opportunities," the plaintiffs' lawyers wrote. Requiring caddies to wear the bibs not only limits their potential to make money, but it also illegally restricts the endorsement market, according to plaintiffs lawyers. Without the bibs, caddies could advertise a broader scope of products and services. Plaintiffs also accuse the PGA Tour of misappropriation of likeness, claiming the company uses their images to promote products advertised on the bibs. The Lanier Law Firm, which represents more than 80 caddies who have signed on to the suit as plaintiffs, says the allegations stem from a larger, systemic problem inside the PGA Tour. The company has created a culture that mistreats and undervalues its caddies, according to the lawyers. The caddies are denied access to necessary areas of tournament venues, are forced to use portable lavatories without running water, and are denied basic health coverage and pension plans, according to the complaint. Mr. Egdorf said the firm is not bringing legal claims based on those problems, but mentions them in the complaint to put the antitrust and misappropriation-of-likeness claims in context. "These caddies are not treated fairly as a whole," Mr. Egdorf said. "The best financial opportunity for them to take care of themselves and their families is the money they would make from those bibs." Plaintiffs lawyers also say PGA Tour clearly understands the need to compensate for advertising opportunities, as the company pays caddies who opt to wear Nature Valley caps during tournaments. "Defendant cannot reasonably deny knowing that plaintiffs expect to be paid to endorse sponsors on their other attire," the lawyers wrote. Plaintiffs have demanded damages, an injunction prohibiting PGA Tour from forcing caddies to wear bibs and disgorgement of the money the company has made from the allegedly illegal advertising. Contact the reporter at mkendall@alm.com PHILLIPS & COHEN: Accused of Illegally Contacting Class Members --------------------------------------------------------------- April Dyer, on behalf of herself and all others similarly situated v. Phillips & Cohen Associates, Ltd., Case No. 2:15-at-00177 (E.D. Cal., February 4, 2015) seeks damages and other remedies resulting from the alleged illegal actions of the Defendant in negligently communicating with the Plaintiff, in violation of the Fair Debt Collection Practices Act. Phillips & Cohen Associates, Ltd. is a company engaged in the business of collecting debts alleged to be due another. The Plaintiff is represented by: G. Thomas Martin, III, Esq. Nicholas J. Bontrager, Esq. MARTIN & BONTRAGER, APC 6565 W. Sunset Blvd., Suite 410 Los Angeles, CA 90028 Telephone: (323) 940-1700 Facsimile: (323) 238-8095 E-mail: tom@mblawapc.com nick@mblawapc.com POLARIS: Recalls Multiple Vehicle Models ---------------------------------------- Starting date: December 30, 2014 Type of communication: Recall Subcategory: Motorcycle Notification type: Safety Mfr System: Fuel Supply Units affected: 401 Source of recall: Transport Canada Identification number: 2015001 TC ID number: 2015001 Manufacturer recall number: V-15-01 A/B On certain motorcycles, the fuel pump body may have been incorrectly crimped during assembly. This could result in the fuel pump seizing due to insufficient clearance within the fuel pump, which could cause the engine to stall, increasing the risk of a crash causing injury and/or damage to property. Dealers will replace the fuel pump. Affected products: Maker Model Model year(s) affected ----- ----- ---------------------- VICTORY JACKPOT 2014 VICTORY CROSS COUNTRY 2013, 2014 VICTORY CROSS ROADS 2013 VICTORY HARD BALL 2013 VICTORY VEGAS 8 BALL 2013, 2014 VICTORY HAMMER 8 BALL 2013, 2014 VICTORY HIGH BALL 2014 VICTORY CROSS COUNTRY 8-BALL 2014 VICTORY CROSS COUNTRY TOUR 2013, 2014 VICTORY CROSS ROADS 8-BALL 2014 PRESTIGE TRANSPORTATION: Suit Seeks to Recover Unpaid Wages & OT ---------------------------------------------------------------- Gelacio Mas v. Prestige Transportation Service, LLC, A Florida Profit Corporation, and Ricardo Hernandez, Individually, Case No. 1:15-cv-20297-CMA (S.D. Fla., January 27, 2015) seeks to recover money damages for alleged unpaid wages and overtime wages. Prestige is a Florida Corporation with its principal place of business located in Miami, Florida. Ricardo Hernandez is a corporate officer, owner or manager of the Company. The Plaintiff is represented by: Ricardo Corona, Esq. Krista Bordatto, Esq. CORONA LAW FIRM, P.A. 3899 NW 7th Street, 2nd Floor Miami, FL 33126 Telephone: (305) 266-1150 Facsimile: (305)266-1151 E-mail: kbordatto@coronapa.com rcorona@coronapa.com PRINCESS AUTO: Recalls Kitchener Meat Grinders ---------------------------------------------- Starting date: January 7, 2015 Type of communication: Consumer Product Recall Subcategory: Household Items Source of recall: Health Canada Issue: Product Safety Audience: General Public Identification number: RA-43185 Affected products: Kitchener Manual Meat Grinders, #32 and #10 Product may introduce metal shavings into the meat it grinds, posing an ingestion hazard to the consumer. Health Canada has received one report of metal shavings coming off the meat grinder. No consumer injuries have been reported. Princess Auto has not received any reports of consumer incidents or injuries related to the use of these meat grinders. Approximately 2,890 of the #32 meat grinders and 7,142 of the #10 meat grinders were sold at Princess Auto stores across Canada. The recalled meat grinders were manufactured in China and sold between January 2007 and November 2014. Companies: Manufacturer Intradin Machinery Company Limited Shanghai China Importer Princess Auto Ltd. Winnipeg Manitoba Canada Consumers should immediately stop using the recalled product and return it to a Princess Auto store for a refund. RANGER CONSTRUCTION: Sued Over Retaliation and Wrongful Discharge ----------------------------------------------------------------- Ben F. Jenkins v. Ranger Construction Industries, Inc., a Florida profit corporation, Case No. 2:15-cv-14036-RLR (S.D. Fla., February 4, 2015) is an action for discrimination, retaliation and wrongful discharge under the Florida Civil Rights Act. The Plaintiff is a resident of Indian River County, Florida, but at all times was employed with the Defendant in Saint Lucie County, Florida. Ranger has a principal location in West Palm Beach, Florida, but operates a facility in Saint Lucie County. The Plaintiff is represented by: Cathleen Scott, Esq. CATHLEEN SCOTT & ASSOCIATES, P.A. Jupiter Gardens, Suite 104-A 250 South Central Boulevard Jupiter, FL 33458 Telephone: (561) 653-0008 Facsimile: (561) 653-0020 E-mail: CScott@floridalaborlawyer.com REGENT MANAGEMENT: Faces Suit Alleging Disabilities Act Violation ----------------------------------------------------------------- Lawrence Feltzin, Individually v. Regent Management, Inc., a New York Corporation, Case No. 2:15-cv-00545 (E.D.N.Y., February 4, 2015) is brought against the Defendant for injunctive relief, and attorney's fees, litigation expenses, and costs pursuant to the Americans with Disabilities Act. Mr. Feltzin, a Florida resident, is a paraplegic and uses a wheelchair to ambulate. Regent Management, Inc., a New York Corporation, owns, leases, leases to, or operates a shopping center located in New Hyde Park, New York. The Plaintiff is represented by: Asaad K. Siddiqi, Esq. WALDER HAYDEN, P.A. 5 Becker Farm Road Roseland, NJ 07068 Telephone: (973) 992-5300 Facsimile: (973) 436-4226 E-mail: aksiddiqi@walderhayden.com - and - Lawrence A. Fuller, Esq. FULLER, FULLER & ASSOCIATES, P.A. 12000 Biscayne Blvd., Suite 502 North Miami, FL 33181 Telephone: (305) 891-5199 Facsimile: (305) 893-9505 E-mail: Lfuller@fullerfuller.com RHEEM MANUFACTURING: Sued Over Refrigerant Leak in HVAC Products ---------------------------------------------------------------- Craig Adelman, On behalf of himself and all others similarly situated v. Rheem Manufacturing Company, Case No. 2:15-cv-00190- JWS (D. Ariz., February 4, 2015) is brought on behalf of persons or entities, who purchased air conditioners, air handlers and heat pumps manufactured by Rheem, or who own or have owned a home or other structure in which the Rheem Products have been installed, and who suffered damages related to leakage of refrigerant from the Rheem copper evaporator or condenser coil products. Rheem is a Delaware corporation with its corporate headquarters located in Atlanta, Georgia. Rheem is in the business of engineering, manufacturing, distributing and marketing heating, ventilation and air conditioning products for residential, manufactured homes and structures, and light commercial use. Rheem designs, manufactures, markets, and distributes HVAC products under these brand or trade names in the United States: Rheem, Ruud and WeatherKing. The Plaintiff is represented by: B. Lance Entrekin, Esq. THE ENTREKIN LAW FIRM One E. Camelback Road, Suite 710 Phoenix, AZ 85012 Telephone: (602) 954-1123 Facsimile: (602) 682-6455 E-mail: Lance@entrekinlaw.com - and - Gregory F. Coleman, Esq. Lisa A. White, Esq. GREG COLEMAN LAW PC 550 Main Avenue, Suite 600 Knoxville, TN 37902 Telephone: (865) 247-0080 Facsimile: (865) 522-0049 E-mail: greg@gregcolemanlaw.com lisa@gregcolemanlaw.com - and - Shanon J. Carson, Esq. Russell D. Paul, Esq. BERGER & MONTAGUE, P.C. 1622 Locust Street Philadelphia, PA 19103 Telephone: (215) 875-3000 Facsimile: (215) 875-4604 E-mail: scarson@bm.net rpaul@bm.net ROC HOUSE: Suit Seeks to Recover Unpaid Wages, OT and Damages ------------------------------------------------------------- Lachandra Mackey v. ROC House Fitness Spa, LLC, Larry Hughes, Tynetta Ali, Case No. 1:15-cv-00253-LMM (N.D. Ga., January 27, 2015) seeks payment for alleged unpaid wages, overtime wages, liquidated damages, actual damages, and compensatory damages, for the Defendants' violation of the Fair Labor Standards Act. ROC House Fitness Spa, LLC, is a foreign Limited Liability Corporation registered in the state of Missouri, with a principal place of business in St. Louis, Missouri, and conducts business within the state of Georgia in Atlanta. ROC describes its business as a unique concept in women's fitness and wellness, with a mission to physically, spiritually and emotionally eliminate the stress of its customer's daily lives. The Plaintiff is represented by: Christopher D. Vaughn, Esq. A. Brian Henson, Esq. THE VAUGHN LAW FIRM, LLC 246 Sycamore Street, Suite 150 Decatur, GA 30030 Telephone: (404) 378-1290 Facsimile: (404) 378-1295 E-mail: cvaughn@thevaughnlawfirm.com bhenson@thevaughnlawfirm.com - and - Frank DeMelfi, Esq. DEMELFI LAW GROUP, LLC 4651 Woodstock Road, Suite 208-103 Roswell, GA 30075 Telephone: (678) 948-7808 Facsimile: (866) 674-7808 E-mail: fdemelfi@gmail.com ROCKY MOUNTAIN: Recalls Caramel Apples Due to Listeria ------------------------------------------------------ Starting date: January 9, 2015 Type of communication: Recall Alert sub-type: Food Recall Warning Subcategory: Microbiological - Listeria Hazard classification: Class 1 Source of recall: Canadian Food Inspection Agency Recalling firm: Rocky Mountain Chocolate Factory Distribution: Newfoundland and Labrador Extent of the product distribution: Retail CFIA reference number: 9579 Rocky Mountain Chocolate Factory, St. John's, NL, is recalling caramel apples that used recalled apples sourced from the United States (US) from the marketplace due to possible Listeria monocytogenes contamination. Consumers should not consume the recalled products described below. The products were sold at Rocky Mountain Chocolate Factory, 23 Rowan St., St. John's, NL. Check to see if you have recalled products in your home. Recalled products should be thrown out or returned to the store where they were purchased. Food contaminated with Listeria monocytogenes may not look or smell spoiled but can still make you sick. Symptoms can include vomiting, nausea, persistent fever, muscle aches, severe headache and neck stiffness. Pregnant women, the elderly and people with weakened immune systems are particularly at risk. Although infected pregnant women may experience only mild, flu-like symptoms, the infection can lead to premature delivery, infection of the newborn or even stillbirth. In severe cases of illness, people may die. There have been no reported illnesses associated with the consumption of these products. The recall was triggered by the Canadian Food Inspection Agency's (CFIA) inspection activities related to the recall of Granny Smith and Gala apples exported by Bidart Bros. in the US. The CFIA is conducting a food safety investigation, which may lead to the recall of other products. If other high-risk products are recalled, the CFIA will notify the public through updated Food Recall Warnings. The CFIA is verifying that industry is removing recalled product from the marketplace. SAGE HOSPITALITY: Accused of Violating Disabilities Act in Colo. ---------------------------------------------------------------- The Civil Rights Education and Enforcement Center, on behalf of its members, and Margaret Denny, on behalf of herself and a proposed class of similarly situated persons v. Sage Hospitality Resources LLC, Case No. 1:15-cv-00236-REB-MEH (D. Colo., Feb. 4, 2015) alleges violations of the Americans with Disabilities Act. The Plaintiffs are represented by: Timothy Patrick Fox, Esq. Sarah Marie Morris, Esq. CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER 104 Broadway, Suite 400 Denver, CO 80203 Telephone: (303) 757-7901 Facsimile: (303) 595-9705 E-mail: tfox@creeclaw.org smorris@creeclaw.org - and - Bill Lann Lee, Esq. Joshua T.K. Davidson, Esq. Julie Hayden Wilensky, Esq. LEWIS FEINBERG LEE RENAKER & JACKSON, P.C. 476 9th Street Oakland, CA 94607 Telephone: (510) 839-6824 Facsimile: (510) 839-7839 E-mail: blee@lewisfeinberg.com jdavidson@lewisfeinberg.com jwilensky@lewisfeinberg.com - and - Julia Campins, Esq. CAMPINS BENHAM-BAKER, LLP 8 California Street, Suite 703 San Francisco, CA 94111 Telephone: (415) 373-5333 Facsimile: (415) 373-5334 E-mail: julia@cbbllp.com - and - Kevin William Williams, Esq. COLORADO CROSS-DISABILITY COALITION 655 Broadway, #775 Denver, CO 80203 Telephone: (303) 839-1775 Facsimile: (303) 839-1782 E-mail: kwilliams@ccdconline.org SHEARER'S FOODS: Court Narrows Claims in "Bohlke" False Ad Case --------------------------------------------------------------- District Judge Robin L. Rosenberg granted in part and denied in part a motion to dismiss the case captioned ELIZABETH BOHLKE, as an individual and on behalf of all others similarly situated, Plaintiffs, v. SHEARER'S FOODS, LLC, formerly known as SHEARER'S FOODS, INC., an Ohio limited liability company, Defendant, CASE NO. 9:14-CV-80727-ROSENBERG/BRANNON, (S.D. Fla.). A copy of the Court's January 20, 2015 order is available at http://is.gd/mzZG3g from Leagle.com. The parties to this action are Plaintiff Elizabeth Bohlke, as an individual and on behalf of all others similarly situated, and Defendant Shearer's Foods, LLC. Defendant makes Riceworks Gourmet Brown Rice Crisps, which are available in several different flavor varieties. Plaintiff purchased three varieties of Riceworks: the Sweet Chili Flavor, the Sea Salt Flavor, and the Salsa Fresca Flavor. The Products' packaging states that the Products are "All Natural" and contain "No Artificial Ingredients." However, the Products contain unnatural, synthetic, and/or artificial ingredients such as Masa Corn Flour, Canola Oil, Maltodextrin, and Caramel Color. Accordingly, the Plaintiff alleges that Defendant's "All Natural" and "No Artificial Ingredients" claims are untrue, misleading, and likely to deceive reasonable consumers, such as Plaintiff and members of the proposed Classes. The Plaintiff has asserted these causes of action against Defendant: (1) Violations of Florida's Deceptive and Unfair Trade Practices Act ("FDUTPA"); (2) Negligent Misrepresentation; (3) Breach of Express Warranty; (4) Violation of the Magnuson-Moss Warranty Act ("MMWA"); and (5) Unjust Enrichment. The Defendant filed a motion to dismiss the case requesting that the Court strike Plaintiff's nationwide class-action allegations and dismiss all counts. Judge Rosenberg held that: (1) Plaintiff's claims are limited to the flavors of Riceworks that she herself purchased, and her claims as to the flavors she did not purchase (Tangy Barbeque and Parmesan & Sundried Tomato) are dismissed without prejudice, and (2) in all other respects, Defendant's Motion is denied. Elizabeth Bohlke, Plaintiff, represented by Howard Weil Rubinstein, The Law Offices of Howard W. Rubinstein, P.A., Michael James Pascucci, The Eggnatz Law Firm & Joshua Harris Eggnatz, The Eggnatz Law Firm, P.A.. Shearer's Foods, LLC, Defendant, represented by Kelly A. Kosek -- kkosek@hahnlaw.com -- Hahn Loeser & Parks LLP, Michael B. Pascoe -- mpascoe@hahnlaw.com -- Hahn Loeser & Parks, LLP, Royce R. Remington -- rrremington@hahnlaw.com -- Hahn Loeser & Parks, LLp, Scott J. Kelly -- skelly@hahnlaw.com -- Hahn Loeser & Parks, LLP & Justin Benjamin Mazzara -- jmazzara@hahnlaw.com -- Hahn Loeser & Parks LLP. SHERIDAN PRODUCTION: Removes "Whisenant" Suit to W.D. Oklahoma -------------------------------------------------------------- The class action lawsuit entitled Whisenant v. Sheridan Production Company LLC, Case No. CJ-14-19, was removed from the District Court of Beaver County, Oklahoma, to the U.S. District Court for the Western District of Oklahoma (Oklahoma City). The Western District Court Clerk assigned Case No. 5:15-cv-00081-HE to the proceeding. The Plaintiff brings claims based upon the Defendant's alleged prior underpayment or nonpayment of royalties on natural gas and for constituents of the gas stream produced from wells in Oklahoma through improper accounting methods. The Plaintiff has a royalty interest in wells in Beaver County, Oklahoma. The Defendant owned a part of the working interest in and paid royalty to the Plaintiff on the wells. During some or all of the relevant times, the Defendant operated the wells. The Plaintiff is represented by: Rex A. Sharp, Esq. GUNDERSON SHARP, LLP 5301 W. 75th Street Prairie Village, KS 66208 Telephone: (913)901-0500 Facsimile: (913) 901-0419 E-mail: rsharp@midwest-law.com The Defendant is represented by: John J. Griffin, Jr., Esq. L. Mark Walker, Esq. Erin Potter Sullenger, Esq. CROWE & DUNLEVY, A PROFESSIONAL CORPORATION Braniff Building 324 North Robinson Avenue, Suite 100 Oklahoma City, OK 73102 Telephone: (405) 235-7700 Facsimile: (405) 239-6651 E-mail: john.griffin@crowedunlevy.com mark.walker@crowedunlevy.com erinpotter.sullenger@crowedunlevy.com SINGAPORE HEALTH: Recalls Joint-Soft Kebigutaijiaonang ------------------------------------------------------ Starting date: December 30, 2014 Type of communication: Foreign Product Alert (FPA) Subcategory: Natural health products Source of recall: Health Canada Source of alert: Singapore Health Sciences Authority These products are not authorized for sale in Canada and have not been found in the Canadian marketplace, but it is possible they may have been brought into the country by travellers or purchased over the Internet. Affected products: JOINT-SOFT KEBIGUTAIJIAONANG Pil Raja Urat Asli JOINT-SOFT The product is promoted for joint pain relief. The Singapore Health Sciences Authority warned consumers not to use the product JOINT-SOFT after it was found to contain piroxicam and dexamethasone. Piroxicam is a prescription drug in the family known as non- steroidal anti-inflammatory drugs (NSAIDs) and is used to treat pain, fever and inflammation. Dexamethasone is a steroidal prescription drug used to treat inflammatory conditions such as arthritis and allergic reactions. Prescription drugs such as piroxicam and dexamethasone should only be taken under the supervision of a healthcare professional. Place of origin Side effects associated with piroxicam include changes in blood pressure, gastrointestinal disorders (with or without bleeding), anemia, kidney failure and reduced blood-clotting ability. Side effects associated with dexamethasone include irregular heartbeat; increased blood pressure; stomach ulcer; blood disorders; skin, muscle and bone damage; and nervous system disorders. Consult with your healthcare professional prior to stopping use, as sudden discontinuation of dexamethasone may cause symptoms of withdrawal. KEBIGUTAIJIAONANG is promoted for joint pain relief. The Singapore Health Sciences Authority warned consumers not to use the product KEBIGUTAIJIAONANG after it was found to contain piroxicam, hydrochlorothiazide, and prednisone. Piroxicam is a prescription drug in the family known as non- steroidal anti-inflammatory drugs (NSAIDs) and is used to treat pain, fever and inflammation. Hydrochlorothiazide is a diuretic (water pill) prescription drug used to remove excess fluid from the body. Prednisone is a steroidal prescription drug used to treat inflammatory conditions such as arthritis and allergic reactions. Prescription drugs such as piroxicam, hydrochlorothiazide, and prednisone should only be taken under the supervision of a healthcare professional. Place of origin Side effects associated with piroxicam include changes in blood pressure, gastrointestinal disorders (with or without bleeding), anemia, kidney failure and reduced blood-clotting ability. Side effects associated with hydrochlorothiazide include changes in electrolytes (specifically potassium), muscle cramps, dizziness, low blood pressure, headache and nausea. Side effects associated with prednisone include irregular heartbeat; increased blood pressure; stomach ulcer; blood disorders; skin, muscle and bone damage; and nervous system disorders. Consult with your healthcare professional prior to stopping use, as sudden discontinuation of prednisone may cause symptoms of withdrawal. Pil Raja Urat Asli is promoted for pain relief. The Singapore Health Sciences Authority warned consumers not to se the product Pil Raja Urat Asli after it was found to contain piroxicam and indomethacin. Piroxicam and indomethacin are prescription drugs in the family known as non-steroidal anti-inflammatory drugs (NSAIDs) and are used to treat pain, fever and inflammation. Piroxicam and indomethacin should only be taken under the supervision of a healthcare professional. Side effects associated with piroxicam and indomethacin include changes in blood pressure, gastrointestinal disorders (with or without bleeding), anemia, kidney failure and reduced blood- clotting ability. Health Canada advises Canadians to contact the Health Products and Food Branch Inspectorate at 1-800-267-9675 if they find the products listed above in the Canadian marketplace. Canadians who have these products are advised not to use them, and should consult with a healthcare professional if they have concerns about their health related to the use of these products. STANDARD & POOR'S: Connecticut to Get $1.38 Mil. From Settlement ---------------------------------------------------------------- Jay Stapleton, writing for The Connecticut Law Tribune, reports that in 2010, during the depths of the financial crisis, then- Connecticut Attorney General Richard Blumenthal filed a lawsuit against securities- and bond-rating company Standard & Poor's, accusing it of inflating ratings of risky, mortgage-backed investments whose collapse helped trigger the Wall Street meltdown. Now that litigation has paid off for Connecticut, the federal government and the other 18 states that joined in. Connecticut will receive $36 million from a national settlement that will total $1.38 billion. Half the national settlement total will go to the 19 states and the District of Columbia and the other half to the federal government. Mr. Blumenthal is now in the U.S. Senate. His successor, George Jepsen, and Mr. Jepsen's staf pursued the litigation after taking office in 2011 and announced the settlement on Feb. 3. The settlement reportedly came after months of negotiations. "The settlement is the product of years of hard-fought litigation and reflects the strength of the cases developed by our coalition of states with the Department of Justice," Mr. Jepsen said during a conference call. "We alleged that S&P's ratings of structured finance securities, including risky mortgage-backed securities, were directly influenced by the demands of the powerful investment banking clients who issued the securities and paid S&P to rate them. In effect, S&P considered its own business interests, contrary to its public statements that its ratings were objective." The faulty ratings, Mr. Jepsen said, "had a very direct and serious impact on our national economy that is still being felt in communities and households in Connecticut and across our country." Under the agreement, S&P admitted that it issued and confirmed positive ratings from 2004 to 2007 despite knowing that those assessments were unjustified and, in many cases, assigned to packages of mortgages that it knew were likely to default. Not only was Connecticut the first in the nation to bring a lawsuit against S&P for its ratings, but it also found a way to get around a key legal defense the S&P had relied on to fend off similar lawsuits. "That legal theory was developed right here in our office," Mr. Jepsen said. Essentially, Assistant Attorney General Matthew Budzik explained, lawyers for S&P had relied on a First Amendment argument to stave off lawsuits, stating it had a "right" to say what they wanted about their business, including their ratings. But Connecticut attacked how the ratings were obtained, rather than the ratings themselves. "What we did is we said, 'We're not going to complain about the ratings, we're going to complain about how you did your analysis,'" Mr. Budzik said. That paved the way for an unfair trade practices claim that alleged the S&P used the ratings to secure "their own business interests" rather than to inform the public. "We were able to obviate the defense, in a very hard-fought argument," Mr. Budzik said. The Justice Department and other states latched onto the Connecticut theory, which put pressure on S&P and led to the settlement. As part of the deal, S&P also agreed to retract its earlier allegation that the U.S. Department of Justice had joined the action in retaliation for its downgrade of the United States' credit rating in 2011. Company executives "complained that the company declined to downgrade underperforming assets because it was worried that doing so would hurt the company's business," Attorney General Eric Holder said Feb. 3. "While this strategy may have helped S&P avoid disappointing its clients, it did major harm to the larger economy, contributing to the worst financial crisis since the Great Depression. The Justice Department filed its own civil fraud charges against S&P two years ago last week. At that time, it demanded $5 billion in penalties. The $1.38 billion payment represents a little more than half of S&P's 2013 revenues of $2.27 billion. S&P initially disputed the government's allegations, calling the legal action "meritless" and the claims "simply not true." The company insisted its ratings were based on a good-faith assessment of the performance of home mortgages during a time of market turmoil. On Feb 3, McGraw Hill Financial Inc., the parent company of S&P, said in a statement that the settlement contains no findings of violations of law by itself, S&P Financial Services or Standard & Poor's Ratings Services. The three big rating agencies -- S&P, Moody's Investors Service and Fitch Ratings -- have been blamed for helping fuel the 2008 crisis by giving high ratings to high-risk mortgage securities. The high ratings made it possible for banks to sell trillions of dollars' worth of those securities. Some investors, such as pension funds, can only buy securities that carry high credit ratings. Those investments soured when the housing market went bust in 2006. Experts say the Justice Department's lawsuit against S&P could serve as a template for action against Fitch and Moody's. Last month, S&P agreed to pay the federal government, New York state and Massachusetts more than $77 million to settle separate charges by the Securities and Exchange Commission related to its ratings of high-risk mortgage securities after the crisis. The SEC had accused S&P of fraudulent misconduct, saying the company loosened standards to drum up business in 2011 and 2012. SYNGENTA CORP: "Boatwright" Suit Consolidated in MIR162 Corn MDL ---------------------------------------------------------------- The class action lawsuit styled Boatwright Farms Partnership v. Syngenta Corporation, et al., Case No. 5:15-cv-00018, was transferred from the U.S. District Court for the Western District of Kentucky to the U.S. District Court for the District of Kansas (Kansas City). The Kansas District Court Clerk assigned Case No. 2:15-cv-02323-JWL-JPO to the proceeding. The lawsuit is consolidated in the multidistrict litigation known as In re: Syngenta AG MIR162 Corn Litigation, MDL No. 2:14-md- 02591-JWL-JPO. The cases concern the Syngenta defendants' alleged decision to commercialize corn seeds containing a genetically modified trait, known as "MIR162," that reportedly controls certain insects. Corn with this trait has entered U.S. corn stocks but has not been approved for import by the Chinese government, which has imposed a complete ban on U.S. corn with this trait. The Plaintiffs are corn growers and grain exporters, who allegedly suffered economic losses resulting from China's refusal to accept MIR162 corn. The Plaintiff is represented by: Adam J. Levitt, Esq. Edmund S. Aronowitz, Esq. GRANT & EISENHOFER, PA 30 North LaSalle Street, Suite 1200 Chicago, IL 60602 Telephone: (312) 214-0000 Facsimile: (312) 214-0001 E-mail: alevitt@gelaw.com earonowitz@gelaw.com - and - James J. Pizzirusso, Esq. Mindy Pava, Esq. HAUSFELD LLP 1700 K. Street Northwest, Suite 650 Washington, DC 20006 Telephone: (202) 540-7154 Facsimile: (202) 540-7201 E-mail: jpizzirusso@hausfeldllp.com mpava@hausfeld.com - and - Mark P. Bryant, Esq. BRYANT LAW CENTER, PSC 601 Washington Street Paducah, KY 42003 Telephone: (270) 442-1422 Facsimile: (270) 443-8788 E-mail: mark.bryant@bryantpsc.com - and - Thomas V. Bender, Esq. WALTERS BENDER STROHBEHN & VAUGHAN, PC 2500 City Center Square 1100 Main Street Kansas City, MO 64105 Telephone: (816) 421-6620 Facsimile: (816) 421-4747 E-mail: tbender@wbsvlaw.com TASTE CULINARY: Recalls Umi's Kitchen Butter Chicken Simmer Sauce ----------------------------------------------------------------- Starting date: January 7, 2015 Type of communication: Recall Alert sub-type: Notification Subcategory: Extraneous Material Hazard classification: Class 3 Source of recall: Canadian Food Inspection Agency Recalling firm: Taste Culinary Solutions Inc. Distribution: British Columbia Extent of the product distribution: Retail CFIA reference number: 9560 Affected products: 450 ml. Umi's Kitchen Butter Chicken Simmer Sauce THOR MOTOR: Recalls Chateau, Miramar, Palazzo & Windsport Models ---------------------------------------------------------------- Starting date: January 8, 2015 Type of communication: Recall Subcategory: Motorhome Notification type: Safety Mfr System: Accessories Units affected: 8 Source of recall: Transport Canada Identification number: 2015006 TC ID number: 2015006 On certain motorhomes outfitted with Carefree awnings, the screws that secure the awning to the mounting bracket can break. If the mounting bracket assembly were to break apart, the awning can collapse, which could strike another vehicle, a stationary object, or a bystander, causing injury and/or property damage. Dealers will replace the defective screws. Affected products: Maker Model Model year(s) affected ----- ----- ---------------------- THOR MOTOR COACH CHATEAU 2015 THOR MOTOR COAC WINDSPORT 2015 THOR MOTOR COACH PALAZZO 2015 THOR MOTOR COACH MIRAMAR 2015 TOYOTA MOTOR: Must Pay $11 Million to 1996 Camry Crash Victims -------------------------------------------------------------- Amy Forliti, writing for The Associated Press, reports that a federal jury decided on Feb. 3 that the design of the 1996 Toyota Camry had a dangerous defect that was partly to blame for a fatal 2006 crash, and the automaker must pay nearly $11 million to victims. Jurors said the company was 60 percent to blame for the accident, which left three people dead and two seriously injured. But they also found that Koua Fong Lee, who has long insisted he tried to stop his car before it slammed into another vehicle, was 40 percent at fault. Mr. Lee, his family members, the family of a girl who died, and two people who were seriously injured sued Toyota Motor Corp. in U.S. District Court in Minneapolis. The lawsuit alleged the crash was caused by an acceleration defect in Mr. Lee's vehicle, but Toyota argued there was no design defect and that Mr. Lee was negligent. "No amount of money . . . will bring my life back, my life is not the same anymore," Mr. Lee said after the verdict, adding that he wanted the victims and their families to know: "I tried everything I could to stop my car." Toyota released a statement saying the company respects the jury's decision but believes the evidence clearly showed the vehicle wasn't the accident's cause. The company said it will study the record and consider its legal options going forward. After the 2006 wreck, Mr. Lee was convicted of vehicular homicide and sentenced to prison. He won a new trial after reports surfaced about sudden acceleration in some Toyotas, and questions were raised about the adequacy of his defense. Prosecutors opted against a retrial and he went free after spending 2 1/2 years behind bars. He later sued. The civil trial lasted three weeks, and jurors spent four full days deliberating. Under Minnesota law, the way the jury allocated fault means Toyota is responsible for paying all damages, minus 40 percent of the amount awarded to Mr. Lee, said Mr. Lee's attorney, Bob Hilliard. That brings Toyota's total liability to $10.94 million. Mr. Lee will receive $750,000 of that total. During the trial, Mr. Hilliard, told jurors there was a defect in the car's design. He said the Camry's auto-drive assembly could stick, and when tapped or pushed while stuck, it could stick again at a higher speed. He also accused Toyota of never conducting reliability tests on nylon resin pulleys that could be damaged under heat and cause the throttle to stick. "This is what makes the car go. This is what turns it into a torpedo, a missile, a deadly weapon," Mr. Hilliard said during his closing argument. Toyota said there was no defect in the design of the 1996 Camry. The company's attorney, David Graves, suggested that Mr. Lee was an inexperienced driver and mistook the gas pedal for the brake. Toyota also noted that Mr. Lee's car was never subject to the recalls of later-model Toyotas. Mr. Hilliard said the verdict means that other 1996 Toyota Camrys have defects, and perhaps the National Highway Traffic Safety Administration needs to take a look at the car, while owners of those vehicles need to make sure they are safe. "I am 100 percent convinced in my heart and mind that there is a defect in this Camry, and that this defect caused this accident," he said. The crash killed the driver of the other vehicle, Javis Trice- Adams Sr., and his 9-year-old son, Javis Adams Jr. They were not part of this case. Trice-Adams' 6-year-old niece, Devyn Bolton, was paralyzed and died in October 2007. The jury awarded her estate $4 million. Trice-Adams' daughter, Jassmine Adams, who was 12 at the time, was seriously injured, as was his father, Quincy Ray Adams. Jassmine Adams was awarded $4 million, and Quincy Adams was awarded $1.25 million. Lesser damages were awarded to Mr. Lee and four family members who were in his car at the time. Terrell Damar Adams, a cousin of Javis Adams Sr., called the verdict a blessing. "I think it's kind of amazing that they found Toyota at fault," he said, but added that the monetary award "doesn't bring back our family." UNCLE T FOOD: Recalls Trung Nguyen G7 Black Instant Coffee 2-in-1 ----------------------------------------------------------------- Starting date: January 8, 2015 Type of communication: Recall Alert sub-type: Food Recall Warning (Allergen) Subcategory: Allergen - Milk Hazard classification: Class 2 Source of recall: Canadian Food Inspection Agency Recalling firm: Uncle T Food Ltd. Distribution: Alberta, British Columbia Extent of the product distribution: Retail CFIA reference number: 9570 Affected products: 15 x 16 g. Trung Nguyen G7 Black Instant Coffee 2-in-1 with all codes where milk is not declared on the label UNITED BANK: Harbortouch Gets OK to Amend Answer to "Corona" Suit ----------------------------------------------------------------- AMADOR L. CORONA, Attorney at Law, individually and on behalf of all other similarly situated persons, Plaintiff, v. UNITED BANK CARD, INC., a corporation, Defendant, NO. 8:12CV89, (D. Neb.) is before the Court on Defendant Harbortouch Payments, LLC's Motion for Leave to File Amended Answer. "[T]he Court will grant Defendant leave to amend its answer," ruled Magistrate Judge F.A. Gossett in an order dated January 21, 2015, a copy of which is available at http://is.gd/z4a1Hs from Leagle.com. "Through its amendment, Defendant is attempting to make clear its contention that any merchant having a contract with a New Jersey forum selection clause is not part of Plaintiff's proposed class and is bound by the terms of a recent settlement reached in a New Jersey lawsuit involving similar issues. The New Jersey settlement was given preliminary approval on or about September 24, 2014. Defendant notified Plaintiff of its desire to amend its answer on or about October 17, 2014, and Plaintiff was provided a copy of Defendant's proposed answer on November 5, 2014. Defendant filed its motion to amend on November 17, 2014. Granting Defendant leave to amend at this time would not prejudice Plaintiff because, in accordance with the parties' agreement, the class certification phase of discovery has just begun and no dates, including a trial date, have been set that might be affected by the proposed amendment," Mag. Judge Gossett added. Amador L. Corona, Plaintiff, represented by Christopher J. Roberts, ROBERTS LAW FIRM, Gary R. Pearson -- pearsonlaw@neb.rr.com -- PEARSON LAW FIRM, Joel J. Ewusiak -- joel@ewusiaklaw.com -- EWUSIAK LAW FIRM & Scott E. Schutzman -- schutzy@msn.com -- LAW OFFICES OF SCOTT E. SCHUTZMAN. United Bank Card, Inc., Defendant, represented by J. Scott Paul -- spaul@mcgrathnorth.com -- MCGRATH, NORTH LAW FIRM & Michaela A. Smith -- msmith@mcgrathnorth.com -- MCGRATH, NORTH LAW FIRM. UNITED STATES: Dist. Court Dismisses Class Action Suit vs. DOE -------------------------------------------------------------- District Judge Robert W. Sweet granted a motion to dismiss an amended class action complaint in ANA SALAZAR, MARILYN MERCADO, ANA BERNARDEZ, JEANNETTE POOLE, EDNA VILLATORO, LISA BRYANT and CHERRYLINE STEVENS, on behalf of themselves and all others similarly situated, Plaintiffs, v. ARNE DUNCAN, in his official capacity as Secretary of the United States Department of Education, Defendant, NO. 14 CIV. 1230 (RWS), (S.D. N.Y.). "While the spirit behind the enactment of 20 U.S.C. [Section] 1087(c) arguably supports Plaintiffs cause, the statute and its implementing regulations' construction do not. Defendant's arguments regarding injunctive relief and motion for class certification are denied as moot in light of the dismissal of the Plaintiffs' [Amended Complaint]," wrote Judge Sweet in an opinion dated January 9, 2015, a copy of which is available at http://is.gd/Sd8buM from Leagle.com. Yisroel Schulman, Esq. -- yschulman@nylag.org -- Jane Greengold Stevens, Esq. -- jstevens@nylag.org -- Michelle Movahed, Esq., Eileen Connor, Esq. -- econnor@nylag.org -- NEW YORK LEGAL ASSISTANCE GROUP, New York, NY, Attorneys for the Plaintiffs. Christine S. Poscablo, Esq., Ellen London, Esq., PREET BHARARA, United States Attorney for the Southern District of New York, New York, NY, Attorneys for the Defendant. UNITED STATES: Obamacare Improperly Taxes States, Ohio Claims ------------------------------------------------------------- Kevin Koeninger at Courthouse News Service reports that the program used to fund Obamacare improperly taxes states and local governments, a federal class action led by the state of Ohio alleges. Ohio filed the complaint on January 26 alongside Warren County, the Ohio Department of Administrative Services, the University of Akron, Shawnee State University, Bowling Green State University and Youngstown State University. It says that, by implementing the Patient Protection and Affordable Care Act's "Transitional Reinsurance Program," the federal government has "assessed and now collected mandatory monetary 'contributions' not only from insurance companies and certain private self-insured health care plans, but also directly from state and local governments that provide self-insured health care plans for their employees." "The federal bureaucracy overreaches and acts beyond its statutory authority in purporting to apply these taxes to plaintiff the State of Ohio and its instrumentalities including the Ohio Department of Administrative Services, plaintiff universities, and Warren County," the complaint continues. Ohio says there is a reason Congress limited the mandatory contributions to administrators of welfare-benefit plans under the Employee Retirement Income Security Act. That is because, if applied to state governments, "such taxation would alter radically the balance of authority between the federal government and the states: it would violate important federalism protections of the United States Constitution, including the Tenth Amendment and the related Anti-Commandeering doctrine and the doctrine of Intergovernmental Tax Immunity," the complaint states. Ohio also accuses Uncle Sam of misusing the funds collected under the "Transitional Reinsurance Program." "The federal government has acknowledged . . . that a significant portion of the monies so collected will not fund 'transitional reinsurance,' but instead will be directed into the general fund of the United States Treasury," the complaint states. "Thus, not only is the federal government purporting to tax the states and their instrumentalities directly, but it is doing so in part to fund federal programs unrelated to the specified objects of the tax and its central stated purpose," Ohio notes. A letter Ohio Attorney General Mike DeWine sent to the U.S. Department of Health and Human Services, informing it that the reinsurance tax does not apply to state and local government entities, has allegedly gone unanswered. "Defendants have responded to that letter only by proceeding to collect the disputed taxes from the state of Ohio and its instrumentalities," the complaint states. Ohio and the other plaintiffs want all money collected by the U.S. government for the Reinsurance Program, a figure they put at more than $6.3 million, refunded. They are represented by Frederick Nelson, Esq., senior adviser to Ohio Attorney General Mike DeWine. The United States of America is names as a defendant, as are the Department of Health and Human Services and its secretary, Sylvia Mathews Burwell. US FOOD & DRUG: Recalls Natural Health Foreign Products ------------------------------------------------------- Starting date: December 30, 2014 Type of communication: Foreign Product Alert (FPA) Subcategory: Natural health products Source of recall: Health Canada Source of alert: United States Food and Drug Administration, Hong Kong Department of Health, Australian Therapeutic Goods Administration These products are not authorized for sale in Canada and have not been found in the Canadian marketplace, but it is possible they may have been brought into the country by travellers or purchased over the Internet. Affected products: Slim Perfect Arm Slim Perfect Legs Lingzhi Cleansed Slim Tea Trim-Fast Slimming Softgel Sliming Diet By Pretty White Lipo 8 Burn Slim Best Line Suplemento Alimenticio Capsules Slyn Both Green capsules Mezo Mix Fruit Slimming Slim Perfect Arm, Slim Perfect Legs, Lingzhi Cleansed Slim Tea, Trim-Fast Slimming Softgel, Sliming Diet By Pretty White, Lipo 8 Burn Slim, Best Line Suplemento Alimenticio Capsules, Slyn Both Green capsules, and Mezo These products are promoted for weight loss. The United States Food and Drug Administration (FDA) warned consumers not to use the products Lingzhi Cleansed Slim Tea, Trim- Fast Slimming Softgel, Sliming Diet By Pretty White, Lipo 8 Burn Slim, and Best Line Suplemento Alimenticio Capsules. The Hong Kong Department of Health warned consumers not to use the products Slim Perfect Arm and Slim Perfect Legs and the Australian Therapeutics Goods Administration (TGA) warned consumers not to use the product Slyn Both Green capsules after they were found to contain undeclared sibutramine. The United States Food and Drug Administration (FDA) also warned consumers not to use the product Mezo after it was found to contain benzylsibutramine. Sibutramine was previously used to treat obesity but is no longer authorized for sale in Canada because of its association with an increased risk of cardiovascular sideeffects such as heart attack and stroke. Benzylsibutramine is an unauthorized substance similar to sibutramine and may pose similar health risks. Place of origin In addition to heart attack and stroke, side effects associated with sibutramine include increased blood pressure and heart rate, dry mouth, difficulty sleeping and constipation. This product is promoted for weight loss. The United States Food and Drug Administration (FDA) warned consumers not to use this product after it was found to contain undeclared sibutramine and phenolphthalein. Sibutramine was previously used to treat obesity but is no longer authorized for sale in Canada because of its association with an increased risk of cardiovascular side effects such as heart attack and stroke. Phenolphthalein was previously used as a laxative but is no longer authorized for sale in Canada because it may cause cancer. Place of origin In addition to heart attack and stroke, side effects associated with sibutramine include increased blood pressure and heart rate, dry mouth, difficulty sleeping and constipation. Additional side effects associated with phenolphthalein include decreased blood pressure, skin rash and gastrointestinal bleeding. Health Canada advises Canadians to contact the Health Products and Food Branch Inspectorate at 1-800-267-9675 if they find the products listed above in the Canadian marketplace. Canadians who have these products are advised not to use them, and should consult with a healthcare professional if they have concerns about their health related to the use of these products. VIVO BRAND: Forta for Men Due to Homosildenafil Recalled -------------------------------------------------------- Starting date: December 30, 2014 Posting date: December 31, 2014 Type of communication: Drug Recall Subcategory: Natural health products Hazard classification: Type I Source of recall: Health Canada Issue: Product Safety Audience: General Public, Hospitals, Healthcare Professionals Identification number: RA-43169 Recalled products: Forta for Men Product was found to be adulterated with undeclared unauthorized homosildenafil. Affected products: A. Forta for Men DIN, NPN, DIN-HIM NPN 80045132 Strength: Cinnamomum aromaticum 70.0 mg Epimedium brevicornu 130.0 mg Lycium barbarum 80.0 mg Ophiocordyceps sinensis 120.0 mg Panax ginseng 100.0 mg Lot or serial number: 318 Companies: Recalling Firm Vivo Brand Management 830 Campbell St. Cornwall K6H 6L7 Ontario Canada WAH LEE: Recalls FEEMA Cordless Electric Kettle ----------------------------------------------- Starting date: December 30, 2014 Posting date: December 30, 2014 Type of communication: Consumer Product Recall Subcategory: Tools and Electrical Products Source of recall: Health Canada Issue: Electrical Hazard Audience: General Public Identification number: RA-43059 Affected products: FEEMA 1.5L Cordless Electric Kettle This voluntary recall involves FEEMA 1.5L cordless electric kettles identified by model number FM1500 and UPC number 4893153394579. The product has an auto shut off function and boil dry protection. The kettles are made of stainless steel with dimensions measuring 21 centimetres in height and 14.5 centimetres in diameter. The kettles are lacking an approved certification mark and it is unknown if they are in compliance with the applicable electrical safety standard. Neither Health Canada nor Wah Lee Household has received any reports of consumer incidents or injuries related to the use of these kettles. Approximately 23 units of the recalled kettles were sold in Canada. The units were manufactured in China and sold from September 2014 to November 13, 2014. Companies: Importer Wah Lee Household Products Inc. Toronto Ontario Canada Images (select thumbnail to enlarge) Consumers should immediately stop using the affected FEEMA cordless electric kettles and return them to Wah Lee Household. WAL-MART INC: Judge Narrows Claims in "Cortina" Class Suit ---------------------------------------------------------- In the action THAMAR SANTISTEBAN CORTINA, on behalf of herself, all others similarly situated, and the general public, Plaintiff, v. WAL-MART, INC., Defendant, Case No. 13-CV-2054 BAS (DHB) (S.D. Cal.), District Judge Cynthia Bashant entered an order (1) granting in part and denying in part Defendant's Motion to Dismiss, and (2) Terminating in part and Denying in part Defendant's Motion to Strike. Plaintiff Thamar Cortina alleges Wal-Mart's coenzyme Q10 supplement, sold under its "Equate" brand, was deceptively advertised under various common law and statutory provisions. Defendant moved to dismiss the Plaintiff's First Amended Complaint. The judge notes: "Now, Plaintiff again seeks to assert a claim under the [Arkansas Deceptive Trade Practices Act -- "ADTPA"] on behalf of a nationwide class. However, Plaintiff's injuries occurred in California, and California's interest in protecting customers in this state outweighs Arkansas' interests. Similarly, all other states have a superior interest in asserting their laws to protect transactions taking place in their state, whether or not their law conflicts with Arkansas'. At this point, Plaintiff cannot possibly allege any facts consistent with the First Amended Complaint that could give rise to a cause of action under Arkansas law for plaintiffs who did not purchase Equate in Arkansas." Accordingly, the Court grants in part the motion to dismiss insofar as it is seeks to dismiss the ADTPA claim, and the Court dismisses the Plaintiff's second claim for relief under the ADTPA without leave to amend to assert it on behalf of a nationwide class. In a separately-noticed "Motion to Strike", Defendant moved to dismiss the causes of action Plaintiff has asserted on behalf of a prospective nationwide class. Defendant asserted the Court should "strike" the causes of action both by restating the previously asserted grounds for dismissal and contending that the Magnuson- Moss Warranty Act (MMWA) "cannot support certification of a national class[.]" The Court holds that insofar as this motion seeks to dismiss the ADTPA claim, it is terminated as moot because that claim has been dismissed. As to the prospective nationwide class, the Court determines they are not "redundant, immaterial, impertinent, or scandalous" such that they may be stricken under Rule 12(f). Further, at this point a motion opposing class certification is premature. For those reasons, the remainder of the motion to strike is denied, the Court rules. A copy of the District Court's Jan. 20, 2015 Order is available at http://is.gd/byZwzdfrom Leagle.com. Thamar Santisteban Cortina, Plaintiff, represented by Jack Fitzgerald, IV -- jack@jackfitzgeraldlaw.com -- The Law Office of Jack Fitzgerald, PC, Ronald Marron, Law Office of Ronald Marron, Alexis M. Wood, Law Offices of Ronald A. Marron, Beatrice Skye Resendes, Law Offices of Ronald A. Marron APLC & Trevor Flynn -- trevor@jackfitzgeraldlaw.com -- Hillcrest Professional Building. Wal-Mart, Inc., Defendant, represented by David C Allen -- dallen@btlaw.com -- Barnes & Thornburg LLP, Jade Jurdi -- jade.jurdi@btlaw.com -- Barnes & Thornburg LLP, Kevin Dale Rising -- kevin.rising@BTLaw.com -- Barnes & Thornburg LLP & Sarah Elizabeth Johnston -- sjohnston@btlaw.com -- Barnes & Thornburg LLP. WESTON TRANSPORTATION: "Brown" Suit Transferred to W.D. Missouri ---------------------------------------------------------------- The lawsuit styled Ronald Brown v. Weston Transportation, Case No. 2:14-cv-02456, was transferred from the U.S. District Court for the District of Kansas to the U.S. District Court for the Western District of Missouri (Kansas City). The Missouri District Court Clerk assigned Case No. 4:15-cv-00073-HFS to the proceeding. Mr. Brown, proceeding pro se and in forma pauperis, filed the action alleging violations under the Civil Rights Act of 1964, and the Age Discrimination in Employment Act of 1967, and a claim for retaliation based on his complaint about disparate treatment. The Defendant is represented by: Jacob L. Kurtz, Esq. Kevin D. Case, Esq. Michael C. Skidgel, Esq. CASE LINDEN, PC 2600 Grand Blvd., Suite 300 Kansas City, MO 64108 Telephone: (816) 979-1500 Facsimile: (816) 979-1501 E-mail: jacob.kurtz@caselinden.com kevin.case@caselinden.com mike.skidgel@caselinden.com WESTOWER COMMS: April 8 Final Settlement Approval Hearing --------------------------------------------------------- District Judge John A. Mendez of the Eastern District of California granted the motion for preliminary approval of class action settlement, conditional certification, approval of class notice, and setting of final approval hearing in the case TROY CRAYTHORN, individually, and on behalf of all others similarly situated, Plaintiff, v. WESTOWER COMMUNICATIONS, INC., a Delaware Corporation, Defendant, No. 2:12-CV-01328-JAM-EFB (E.D. Cal.) The Court notes that defendant has agreed to pay the Gross Settlement Amount of $1,140,000 in full satisfaction of the claims as specifically described in the Settlement Agreement. The court finds the settlement as fair and reasonable to class members when balanced against the probable outcome of further litigation relating to class action certification, liability and damages issues, and potential appeals of rulings. The Court finds that settlement at this time will avoid substantial costs, delay and risks that would be presented by the further prosecution of the litigation, and that the proposed Settlement has been reached as the result of intensive, informed and non-collusive and arm's- length negotiations between the parties. The court conditionally certified these classes for settlement purposes only: (1) The "Roseville Class": all non-exempt field civil technicians, tower technicians, electricians, and foremen employed by WesTower and who worked out of a Northern California location at any time during the period of March 9, 2008 through July 30, 2014. a. "Roseville Subclass": all Roseville Class members employed at any time on or after March 9, 2009 and who were no longer employed as of July 30, 2014; (2) The "Los Angeles Class": all non-exempt Foremen employed by WesTower and who worked out of a Southern California location at any time during the period of March 9, 2008 through July 30, 2014. a. "Los Angeles Subclass": all Los Angeles Class members employed at any time on or after March 9, 2009 and who were no longer employed as of July 30, 2014. The Court approves and appoints Plaintiff Troy W. Craythorn as the Class Representative and approves and appoints Cohelan Khoury & Singer and Vaughan & Associates as Class Counsel. The Court approves and appoints CPT Group, Inc., as the Claims Administrator to administrate the Settlement pursuant to the terms of the Settlement Agreement. The Final Approval hearing shall be held before Judge Mendez at 9:30 a.m. on April 8, 2015 in Courtroom 6, located at the Robert I. Matsui United States Courthouse, 501 I Street, 14th Floor, Sacramento, California 95814, to consider the fairness, adequacy and reasonableness of the proposed Settlement preliminarily approved by this Order of Preliminary Approval, and to consider the application of Class Counsel Cohelan, Khoury & Singer and Vaughan & Associates for an award of reasonable attorneys' fees and litigation expenses, Class Representative service payment to Plaintiff, and for the Claims Administration expenses incurred. All briefs in support of the proposed Settlement and the Final Approval hearing shall be served and filed with the Court on or before March 20, 2015 and that all briefs in support of Class Counsels' requests for awards of attorneys' fees and litigation costs, Class Representative service payment and Claims Administration expenses shall be filed with the Court on or before March 20, 2015. A copy of Judge Mendez's order dated December 5, 2014, is available at http://is.gd/4BNXSvfrom Leagle.com. Troy Craythorn, on behalf of himself and those similarly situated, Plaintiff, represented by Diana Marie Khoury -- dkhoury@ckslaw.com -- James Jason Hill -- jhill@ckslaw.com -- Kimberly Dawn Neilson -- kneilson@ckslaw.com -- Michael D. Singer -- msinger@ckslaw.com -- at Cohelan Khoury and Singer; Cris C. Vaughan -- ccvaughan@sbcglobal.net -- at Vaughan & Associates WesTower Communications, Inc., a Delaware Corporation, Defendant, represented by Jennifer M. Holly -- hollyj@gtlaw.com -- James M. Nelson -- nelsonj@gtlaw.com -- at Greenberg Traurig, LLP; Angela Lee Diesch -- adiesch@kmtg.com -- at Kronick, Moskovitz, Tiedemann & Girard ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Ma. Cristina Canson, Noemi Irene A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2015. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000 or Nina Novak at 202-362-8552. * * * End of Transmission * * *