/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/150312.mbx C L A S S A C T I O N R E P O R T E R Thursday, March 12, 2015, Vol. 17, No. 51 Headlines A & S CONTRACTING: Fails to Pay Overtime Wages, Ohio Suit Claims ACTIVISION BLIZZARD: Settles Shareholder Suit for $275 Million ALHADEFF LAW: Removes "Del Busto" Class Suit to S.D. Florida APOTHAKER SCIAN: Accused of Violating Fair Debt Collection Act APPLE INC: Kicks Off Repair Program After MacBook Pro Complaints ARAB ELECTRIC: Removes "Kritner" Suit to Alabama District Court ARIZONA PIPE TRADES: Class Certified in "Bryant" Action ASTRAZENECA: Class Certification in Nexium Drug Suit Affirmed AUTOZONERS LLC: Faces "Carr" Suit in Alabama Over FLSA Violations BRONX-LEBANON HOSPITAL: Removes "Recio" Suit to S.D. New York CANDICA LLC: Sued in Fla. for Violating Fair Debt Collection Act CARGILL INC: Accused of Harassment and Bias by Female Ex-Worker CBE GROUP: Violates Fair Debt Collection Act, "Shasho" Suit Says CHATTEM INC: Removes "Wiltz" Suit to California District Court CITIMORTGAGE INC: Removes "Kester" Suit to Arizona District Court COMMUNITY HEALTH: "Lutz" Suit Included in Security Breach MDL COMMUNITY HEALTH: "Maes" Suit Included in Security Breach MDL COMMUNITY HEALTH: "Murphy" Suit Included in Security Breach MDL COMPLETE PAYMENT: Judge Narrows Claims in "Zarichny" Suit CSX CORP: Faces Class Action Over Train Derailment Damages DANIEL C. CONSUEGRA: Sued for Violating Fair Debt Collection Act DIAMOND SUPPLY: Removes "Nall" Suit to California District Court DOLE FOOD: CEO Heads to Court to Defend 2013 Buyout DREAM ON ME: Recalls 2-in-1 Bassinet to Cradles EBAY INC: Faces New Class Suit for Collecting of Final Value Fees ENDO PHARMACEUTICALS: Sued for Misrepresenting Testosterone Drug ENTERPRISE HOLDINGS: Faces "Fisher" Suit Alleging FCRA Violations ENVISION HEALTHCARE: Faces Suit Over Patients' Records EQUINOX HOLDINGS: Settles Wage Class Action for $4 Million EVEREST COLLEGE: Ottawa Lawyer Mulls Class Action FLOW SPORTS: Recalls Snowboard Bindings Due to Fall Hazard FOOD SERVICE: Faces Class Action in Conn. Over FLSA Violations FOREST LABORATORIES: 1st Cir. Affirms Dismissal of Lexapro Suit FORTEGRA FINANCIAL: Settles Class Action Over Tiptree Merger FPI MANAGEMENT: Nordrehaug & Bhowmik Files Class Action in Calif. FRESENIUS USA: Suit Over GranuFlo & NaturaLyte Stays in Dist. Ct. GADSDEN, AL: Accused of Running a Debtor's Prison for Poor People GHIRARDELLI CHOCOLATE: $5.25MM Deal in Fake White Choco Suit OK'd GOOGLE INC: Suit Alleging Monopoly Dismissed With Leave to Amend GOOLE INC: Judge Approves $415MM No Poach Class Action Settlement HARTFORD ACCIDENT: Removes "O'Brien" Suit to District of Montana HAWAII: Discriminates Against Non-English Natives, Suit Says HOMELAND SECURITY: Ordered by Court to Stop Detaining Immigrants HONDA MOTOR: Faces Suit Over Faulty Transmissions in Acura TLX i4 HSBC BANK: Settlement in "Mills" Class Action Approved INTEGRATED TRANSPORTATION: Removes "Pace" Suit to C.D. California JB HUNT: Faces "Hyatt" Class Suit Alleging Violations of TCPA KOHLL'S PHARMACY: Sup. Court Agrees to Decide on Moot Class Claim KTM NORTH AMERICA: Recalls Children's Pajamas Due to Burn Risk L&L ENERGY: Class Action Settlement Awaits Final Court Approval LENOVO GROUP: Faces "Bennett" Suit Over Superfish Spyware MARSHALL-DEKALB ELECTRIC: Removes "Lake" Suit to N.D. Alabama MELVILLE DIRECT: Recalls Aquarium Motion Lamps Due to Fire Hazard MINNESOTA: Testimony Continues in Sex Offer Program Class Action MONARCH RECOVERY: Accused of Violating Fair Debt Collection Act NATIONAL RETAIL: Sued Over Accessibility Barriers at Facilities NEATO BURRITO: Employee Withdraws Wage Class Action NEW YORK, NY: 2nd Circuit Junks Occupy Marchers' Mass-Arrest Suit NORAMPAC HOLDINGS: May 21 Settlement Final Approval Hearing Set NORMARK CORPORATION: Recalls Lithium Lazer(TM) Ice Augers NORTHLAND GROUP: Accused of Violating Fair Debt Collection Act NVIDIA CORP: Faces GTX 970 False Advertising Class Action PACE UNIVERSITY: Moves "Williams" Suit to New York District Court PASADENA, CA: Officials Hid $6.4MM Embezzlement Scheme, Suit Says PARAMOUNT CITRUS: Faces Wage-and-Hour Class Action in California PATRIOT PAYMENT: Faces "Mey" Suit Over Unsolicited Phone Sales PICTORIAL OFFSET: New Jersey Suit Seeks to Collect Unpaid Wages PLY GEM HOLDINGS: Sued in Wisconsin for Trademark Infringement RALPH LAUREN: Removes "Polanco" Suit to Florida District Court REGIS CORP: Removes "Watson" Suit to California District Court RESURGENT CAPITAL: Sued for Violating Fair Debt Collection Act RJM ACQUISITIONS: Violates Fair Debt Collection Act, Suit Claims ROCHE: Homeowners Mull Class Action Over Environmental Issues ROYAL APPLIANCE: Recalls Hand Vac Turbo Tool Accessories RUSSELL SIGLER: Removes "Sanchez" Class Suit to C.D. California SCHIFF NUTRITION: Misrepresents MegaRed Supplement, Suit Claims SCM I INVESTMENTS: Faces Class Suit Alleging Job Discrimination SIOUX CITY, IA: Supreme Court Upholds Traffic Camera Ordinance SMARTHEAT INC: Class Certification Bid in "Sicav" Suit Denied SONIC AUTOMOTIVE: Removes "Esqueda" Class Suit to S.D. California SUCCESSFULMATCH.COM: Violates Confidentiality Promise, Suit Says TAKATA CORP: "Herring" Suit Consolidated in Airbag Products MDL TAKATA CORP: First Hearing Begins in Airbag Class Action TARGET CORP: Faces Suit for Misrepresenting Herbal Supplements TIME WARNER: Ruling in Dodgers-Lakers Bundling Suit Affirmed TOTAL WEALTH: Judge Appoints Receiver; Class Action Pending TOYS "R" US: Post-Appeal Settlement Approved in Consumer Suit TRANS-CONTINENTAL CREDIT: Sued in New Jersey for Violating FDCPA TREMCO INC: Ohio Appellate Court Flips Judgment in "Wholf" Suit TRUMP UNIVERSITY: Wants Judge to Decertify Fraud Class Action TULE RIVER: E.D. Cal. Judge Revives "Medina" Suit TYLER STAFFING: Accused of Violating Fair Credit Reporting Act UBER TECH: Lawsuits May Alter Sharing Economy UNITED STATES: Ruling in "Burwell" Medicare Suit Upheld in Part UNIVERSAL PROTECTION: "Franco" Case May Proceed; Stay Dissolved VIRTUS INVESTMENT: Faces Securities Class Action in New York VISA INC: Accused by Arizona of Restraining Trade & Fixing Prices WAL-MART STORES: Faces "Dubanoski" Suit Alleging TCPA Violations WATERFORD HARBOR: Tex. App. Rules in Lot Owner's Suit WCOU RADIO: Sued for Non-Compliance With ADA Standards WELLS FARGO: Removes "Eggers" Suit to Southern District of Iowa WHIRLY WEST: Suit Seeks to Recover Overtime Wages and Damages ********* A & S CONTRACTING: Fails to Pay Overtime Wages, Ohio Suit Claims ---------------------------------------------------------------- James M. Rosser v. A & S Contracting, Inc., Dave Sudlow, Adam Sudlow and Renee Sudlow, Case No. 2:15-cv-00711-EAS-NMK (S.D. Ohio, February 25, 2015) is a "collective action" brought as a result of the Defendants' alleges that the Defendants violated the Fair Labor Standards Act and the Ohio Minimum Fair Wage Standards Act by failing to pay non-exempt employees overtime compensation for hours worked in excess of 40 per workweek. Hocking County, Ohio-based A & S Contracting, Inc. is an Ohio for- profit corporation. A & S provides construction related services throughout the United States, including the installation of truck scale foundations, scale extensions, Pit scale foundations and extensions, above ground pier scales, floating slab scale foundations, axel scale foundations, and highway DOT weigh in motion scale foundations. The Individual Defendants are each incorporators of A & S. The Plaintiff is represented by: Joseph F. Scott, Esq. Ryan A. Winters, Esq. SCOTT & WINTERS LAW FIRM, LLC 815 Superior Ave. E., Suite 1325 Cleveland, OH 44114 Telephone: (440) 498-9100 E-mail: jfscld@yahoo.com ACTIVISION BLIZZARD: Settles Shareholder Suit for $275 Million -------------------------------------------------------------- Randall Chase, writing for The Associated Press, reports that a Delaware judge signaled on March 4 that he will approve a $275 million settlement in a shareholder lawsuit alleging that videogame maker Activision Blizzard was shortchanged in a $6 billion buyback of shares from French media conglomerate Vivendi SA in 2013. Following a hearing on March 4, Vice Chancellor J. Travis Laster said there are outstanding legal and procedural issues he needs to address, but that the settlement appears reasonable. "I'm viewing this settlement favorably in terms of ending the case," he said. The lawsuit alleged that Activision executives and directors, including Vivendi officials, breached their fiduciary duties by entering into a deal that improperly benefited CEO Bobby Kotick and co-chairman Brian Kelly. The two men formed a partnership that paid $2.3 billion for 172 million shares from Vivendi at the same discount price at which Activision acquired 429 million shares for $5.8 billion. The company paid an additional $675 million for certain favorable tax attributes. Joel Friedlander, an attorney for the lead shareholder plaintiff in the case, told Vice Chancellor Laster that the $275 million settlement is the largest ever in a derivative suit, in which shareholders sue on behalf of a company. "Any delay in its implementation will come at significant cost to Activision and its stockholders," he said. But Michael Hanrahan, an attorney for a shareholder who objected to the settlement, argued that stockholders were not receiving any consideration for the release of their damage claims because all the settlement money was going to the company itself, instead of shareholders. Mr. Friedlander argued that the settlement does indeed benefit shareholders of Santa Monica, Calif.-based Activision, maker of the popular "World of Warcraft" and "Call of Duty" games. He noted that the deal calls for the addition of two new independent directors to Activision's board and reduces the voting power of Messrs. Kotick and Kelly. The settlement calls for Vivendi to pay $67.5 million, with $207.5 million coming from the Activision defendants and their insurers. Plaintiffs' attorneys are seeking $72 million of the settlement proceeds for their fees and expenses, an amount that they negotiated with the defendants and are asking the judge to approve. ALHADEFF LAW: Removes "Del Busto" Class Suit to S.D. Florida ------------------------------------------------------------ The class action lawsuit titled Del Busto v. The Alhadeff Law Group, P.L., et al., Case No. 15-01042 CC 05, was removed from the County Court in and for Miami-Dade County, Florida, to the U.S. District Court for the Southern District of Florida (Miami). The District Court Clerk assigned Case No. 1:15-cv-20804-JAL to the proceeding. The lawsuit seeks relief pursuant to the Fair Labor Standards Act. The Plaintiff is represented by: Edilberto O. Marban, Esq. 1600 Ponce De Leon Boulevard, Suite 902 Coral Gables, FL 33134 Telephone: (305) 448-9292 Facsimile: (305) 448-9477 E-mail: marbanlaw@gmail.com The Defendants are represented by: Alexander Stephen Orlofsky, Esq. THE ORLOFSKY LAW FIRM, P.L. 767 Arthur Godfrey Road Miami Beach, FL 33140 Telephone: (305) 538-2344 Facsimile: (305) 907-5248 E-mail: alex@orlofskylawfirm.com APOTHAKER SCIAN: Accused of Violating Fair Debt Collection Act -------------------------------------------------------------- Simone Freeman, on behalf of herself and a class of similarly situated persons v. Apothaker Scian P.C., David J. Apothaker, Benjamin J. Cavallaro and Kimberly Scian, Case No. 2:15-cv-00981- NIQA (E.D. Pa., February 25, 2015) accuses the Defendants of violating the Fair Debt Collection Practices Act. The Plaintiff is represented by: Peter J. Kreher, Esq. KREHER & TRAPANI LLP 1325 Spruce Street Philadelphia, PA 19107 Telephone: (215) 907-7290 Facsimile: (215) 907-7287 E-mail: pete@krehertrapani.com APPLE INC: Kicks Off Repair Program After MacBook Pro Complaints ---------------------------------------------------------------- Ashleigh Allsopp, writing for MacWorld, reports that reports of failing MacBook Pros have been flooding in since 2013, with many owners of 2011 models with AMD graphics suffering from system crashes and hardware problems that have been described as "critical". After a long wait, Apple has finally announced a repair program. Apple kicks off MacBook Pro repair program (at last) Good news everyone! Apple on February 19, 2015 announced that it is kicking off a repair program for some MacBook Pro models suffering from the graphics issues we've described in this article. It's not officially a replacement program, but instead is titled "MacBook Pro Repair Extension Program for Video Issues." On its support page, Apple reveals that "it has determined that a small percentage of MacBook Pro systems may exhibit distorted video, no video or unexpected system restarts." Affected MacBook Pros were apparently sold between February 2011 and December 2013, so if your MacBook was purchased during that period of time then you may be eligible. The specific symptoms described by Apple include distorted or scrambled video on the computer screen, no video on the computer screen (or external display) even though the computer is on, and the computer restarts unexpectedly. So, if you've got a MacBook Pro (15-inch Early 2011), MacBook Pro (17-inch Early 2011), MacBook Pro (15-inch Late 2011), MacBook Pro (17-inch Late 2011), MacBook Pro (Retina, 15-inch, Mid 2012), MacBook Pro (Retina, 15-inch, Early 2013) then you're eligible to take part in the repair program. How to get your MacBook Pro repaired as part of Apple's program If your Mac is eligible, you'll now need to back up your MacBook Pro, and then bring it to an Apple Retail Store or Apple Authorised Service Provider. An Apple technician will then run a diagnostic test to verify eligibility, and let you know how long it'll take to repair. Note, though, that if there is other damage to your MacBook Pro that "prevents the repair" such as a cracked screen, they'll charge you for the replacement of that. Aside from that, though, the repair program is completely free (and so it should be!). You'll be notified when your MacBook Pro has been fixed and is ready to be collected, and fingers crossed the issue will have been resolved. The repair program kicks off in the US and Canada on February, 20 and in other countries from 27 February, and will run until February 27, 2016 or three years from its original date of sale, whichever of those provides longer coverage. Since first publishing this story, we've had more than 750 readers get in touch to let us know that they're experiencing the same issue. The huge thread on Apple's Support Communities has now been viewed more than 4 million times and has more than 12,100 replies. In August 2014, a petition that started last year urging Apple to recall the affected MacBook Pro laptops to fix the problem passed the 10,000-signature mark, and in October 2014 it soared past the 20,000 supporters mark, and it reached a total of 38,205 before Apple finally addressed the issue. It may in part also be due to the class action lawsuit Apple was hit with in October in a California court. The lawsuit claims that the defect in the 2011 MacBook Pro comes from the lead-free solder that's used to connect one of the processing chips to the main circuit board in the computer. According to the complaint, the frequent changes in temperature that occur while using the MacBook Pro cause the lead-free solder to crack, which in turn causes the graphics issues as described above. A very similar lawsuit was been filed in Canada, against Apple Canada. The problem, which first emerged in February 2013, escalated throughout 2014 as more and more owners of the affected models began to experience issues. While playing games, watching HD video or performing another graphics-intensive task, users have witnessed their displays distorting, or sometimes going completely blank. Rebooting the machine temporarily resolves the issue, but it almost always returns. Eventually, many users found that their MacBook boots to a blue or grey screen. Currently, the only permanent resolution is to get a replacement logic board, but that can prove quite costly without Apple Care. It's believed that overheating is to blame for the issue. Some of the readers who've been in touch have said that Apple has replaced their 2011 MacBook Pro's logic board thanks to Apple Care, with some customers even claiming to have had their logic board replaced multiple times. In the past, Apple has offered replacement hard drives for iMacs containing 1TB Seagate hard drives that have been known to fail, replacement MagSafe adapters, iBook logic board replacements back in 2004, and, most recently, a MacBook Air flash storage drive replacement program for June 2012 to June 2013 models. Concerned owners of afflicted MacBooks have even set up a website on which they've been sharing their photographs, plus a Facebook page and a petition. ARAB ELECTRIC: Removes "Kritner" Suit to Alabama District Court --------------------------------------------------------------- The class action lawsuit entitled Kritner v. Arab Electric Cooperative, Case No. 50-CV-2015-900035.00, was removed from the Marshall County Circuit Court to the U.S. District Court for the Northern District of Alabama (Middle). The District Court Clerk assigned Case No. 4:15-cv-00341-VEH to the proceeding. The lawsuit is brought over contract dispute claims. The Plaintiff is represented by: Andrew Phillip Campbell, Esq. John C. Guin, Esq. Stephen D. Wadsworth, Esq. CAMPBELL GUIN WILLIAMS GUY AND GIDIERE LLC 505 20th Street North, Suite 1600 Birmingham, AL 35203 Telephone: (205) 224-0750 E-mail: andy.campbell@campbellguin.com john.guin@campbellguin.com stephen.wadsworth@campbellguin.com The Defendant is represented by: Clint L. Maze, Esq. BURKE BEUOY & MAZE, PC 725 North Brindlee Mtn Parkway Arab, AL 35016 Telephone: (256) 586-9000 Facsimile: (256) 586-4162 E-mail: clmaze@charter.net ARIZONA PIPE TRADES: Class Certified in "Bryant" Action ------------------------------------------------------- District Judge G. Murrat Snow of the District of Arizona granted in part and denied in part plaintiff's motion for class certification in the case Wayne Bryant, Plaintiff/ Counterdefendant, v. Arizona Pipe Trades Pension Trust Fund, et al., Defendants/Counterclaimants, CV-13-01563-PHX-GMS (D. Ariz.) Plaintiff Wayne Bryant worked in the pipe trade profession subject to collective bargaining agreements. He is a member of the America Pipe Trades Pension Trust Fund (Pension Plan), a defined benefits plan, and the Arizona Pipe Trades Defined Contribution Plan (DC Plan). Pursuant to local union contracts, Mr. Bryant's employers were required to make contributions to the Plans on Mr. Bryant's behalf. Like many union members, Mr. Bryant's trade frequently required him to work for employers outside of his local jurisdiction, including in states such as Nevada and Colorado that are covered by the United Association Reciprocity Program for Pension Funds. In 2004, the Trustees of the Plans allegedly approved Amendment 1 to the pension Plans, which provided that, for employees on whose behalf reciprocal contributions were made at rates higher than those required under the collective bargaining agreements, any excess over the current hourly contribution rate would be paid into participants' individual accounts in the DC Plan and credit for the full amount of such excess contributions shall be given to the participant. In May of 2004, the Plans were purportedly amended again to provide that if a participant had not earned a full pension credit during a year that reciprocal contributions were paid on his behalf, all reciprocal contributions would be paid into the Pension Plan and no money would be paid into the DC Plan until after the participant had earned a full pension credit. As a result, excess contributions were withheld from the DC Plan for months longer than authorized under Amendment 1, without interest. Amendment 2 amended the Plans retroactively, the parties dispute whether it did so without notice to participants. On August 24, 2007, Mr. Bryant began receiving installment payments from the DC Plan. In January 2012, defendants asserted that it had overpaid Mr. Bryant and requested that he repay the alleged overpayments at eight percent interest. In July 2013, plaintiff filed a putative class action on behalf of participants in the Pension Plan for the Arizona Pipe Trades Defined Contribution Plan brought pursuant to the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. Section 1001 et seq., for miscalculations of pension contributions in accordance with the terms of the Plans, resulting in a loss of entitled benefits for participants, and for breaches of the fiduciary duty owed to the putative plaintiff class by defendants. Plaintiff proffers two classes and one sub-class for certification. Class 1 represents all DC plan participants who had accrued benefits on or after June 1, 2002 and their eligible spouses and beneficiaries. Sub-Class 1 includes all Class 1 members who had an account between June 1, 2002 and June 24, 2004, and for whom excess contributions were received by the Pension Plan on or after June 1, 2002. Class 2 comprises all participants in the DC Plan as of November 30, 2008, for whom contributions were received by Defendant Plans between June 1, 2008 and November 30, 2008 and their eligible spouses and beneficiaries. Plaintiff contends that his and others' future benefits were diminished as a result, and that the Defendants' actions violated various provisions of the Plans and ERISA, and amounted to a breach of the Trustees' fiduciary obligation. Judge Snow granted in part and denied in part plaintiff's motion for class certification, appointed Wayne Bryant as class representative and the law firm of Martin & Bonnett P.L.L.C. as class counsel. The following classes are certified under Federal Rule of Civil Procedure 23 for prosecution of Counts I, II, and III. 1. Class 1: All DC plan participants who had accrued benefits on or after June 1, 2002 and their eligible spouses and beneficiaries. 2. Sub-class 1: All Class 1 members who were DC Plan participants between June 1, 2002 and June 24, 2004, and for whom excess contributions were received by the Pension Plan on or after June 1, 2002. 3. Class 2: All participants in the DC Plan as of November 30, 2008 for whom contributions were received by the Plans between June 1, 2008 and November 30, 2008 and their eligible spouses and beneficiaries. A copy of Judge Snow's order dated January 22, 2015, is available at http://is.gd/hRTW8ifrom Leagle.com. Wayne Bryant, on his own behalf and on behalf of all others similarly situated, Plaintiff, represented by Jennifer Lynn Kroll, Martin & Bonnett PLLC & Susan Joan Martin, Martin & Bonnett PLLC Arizona Pipe Trades Pension Trust Fund, named as: Pension Plan for the Arizona Pipe Trades Pension Trust Fund, Defendant, represented by Jeffrey Dale Gardner, Jennings Strouss & Salmon PLC, Keith F Overholt, Jennings Strouss & Salmon PLC & Michael James Keenan, Ward Keenan & Barrett PC Arizona Pipe Trades Pension Trust Board of Trustees, Plan Administrator of the Pension Plan for the Arizona Pipe Trades Pension Plan, Defendant, represented by Jeffrey Dale Gardner, Jennings Strouss & Salmon PLC, Keith F Overholt, Jennings Strouss & Salmon PLC & Michael James Keenan, Ward Keenan & Barrett PC Arizona Pipe Trades Defined Contribution Plan, Defendant, represented by Jeffrey Dale Gardner, Jennings Strouss & Salmon PLC, Keith F Overholt, Jennings Strouss & Salmon PLC & Michael James Keenan, Ward Keenan & Barrett PC Arizona Pipe Trades Defined Contribution Plan Board of Trustees, Plan Administrator of the Arizona Pipe Trades Defined Contribution Plan, Defendant, represented by Jeffrey Dale Gardner, Jennings Strouss & Salmon PLC, Keith F Overholt, Jennings Strouss & Salmon PLC & Michael James Keenan, Ward Keenan & Barrett PC Arizona Pipe Trades Defined Contribution Plan, Counter Claimant, represented by Jeffrey Dale Gardner, Jennings Strouss & Salmon PLC, Keith F Overholt, Jennings Strouss & Salmon PLC & Michael James Keenan, Ward Keenan & Barrett PC Arizona Pipe Trades Pension Trust Fund, named as: Pension Plan for the Arizona Pipe Trades Pension Trust Fund, Counter Claimant, represented by Jeffrey Dale Gardner, Jennings Strouss & Salmon PLC,Keith F Overholt, Jennings Strouss & Salmon PLC & Michael James Keenan, Ward Keenan & Barrett PC Arizona Pipe Trades Defined Contribution Plan Board of Trustees, Plan Administrator of the Arizona Pipe Trades Defined Contribution Plan, Counter Claimant, represented by Jeffrey Dale Gardner, Jennings Strouss & Salmon PLC, Keith F Overholt, Jennings Strouss & Salmon PLC & Michael James Keenan, Ward Keenan & Barrett PC Arizona Pipe Trades Pension Trust Board of Trustees, Plan Administrator of the Pension Plan for the Arizona Pipe Trades Pension Plan, Counter Claimant, represented by Jeffrey Dale Gardner, Jennings Strouss & Salmon PLC, Keith F Overholt, Jennings Strouss & Salmon PLC & Michael James Keenan, Ward Keenan & Barrett PC Wayne Bryant, on his own behalf and on behalf of all others similarly situated, Counter Defendant, represented by Jennifer Lynn Kroll, Martin & Bonnett PLLC & Susan Joan Martin, Martin & Bonnett PLLC Arizona Pipe Trades Defined Contribution Plan, Counter Claimant, represented by Jeffrey Dale Gardner, Jennings Strouss & Salmon PLC, Keith F Overholt, Jennings Strouss & Salmon PLC & Michael James Keenan, Ward Keenan & Barrett PC Arizona Pipe Trades Pension Trust Board of Trustees, Plan Administrator of the Pension Plan for the Arizona Pipe Trades Pension Plan, Counter Claimant, represented by Jeffrey Dale Gardner, Jennings Strouss & Salmon PLC, Keith F Overholt, Jennings Strouss & Salmon PLC & Michael James Keenan, Ward Keenan & Barrett PC Arizona Pipe Trades Defined Contribution Plan Board of Trustees, Plan Administrator of the Arizona Pipe Trades Defined Contribution Plan, Counter Claimant, represented by Jeffrey Dale Gardner, Jennings Strouss & Salmon PLC, Keith F Overholt, Jennings Strouss & Salmon PLC & Michael James Keenan, Ward Keenan & Barrett PC Arizona Pipe Trades Pension Trust Fund, named as: Pension Plan for the Arizona Pipe Trades Pension Trust Fund, Counter Claimant, represented by Jeffrey Dale Gardner, Jennings Strouss & Salmon PLC,Keith F Overholt, Jennings Strouss & Salmon PLC & Michael James Keenan, Ward Keenan & Barrett PC Wayne Bryant, on his own behalf and on behalf of all others similarly situated, Counter Defendant, represented by Jennifer Lynn Kroll, Martin & Bonnett PLLC & Susan Joan Martin, Martin & Bonnett PLLC ASTRAZENECA: Class Certification in Nexium Drug Suit Affirmed ------------------------------------------------------------- Circuit Judge Timothy B. Dyk of the United States Court of Appeals, First District, affirmed a district court's decision granting class certification in the appealed case entitled IN RE NEXIUM ANTITRUST LITIGATION. ASTRAZENECA AB, et al., Defendants- Appellants, v. UNITED FOOD AND COMMERCIAL WORKERS UNIONS AND EMPLOYERS MIDWEST HEALTH BENEFITS FUND, et al., Plaintiffs- Appellees, NOS. 14-1521, 14-1522 (1st Cir.) AstraZeneca sells a heartburn drug called Nexium and owns several patents related to the Nexium compound, a method of using Nexium, and the process for manufacturing Nexium. Three generic drug companies, Ranbaxy, Teva, and DRL, sought to market generic forms of Nexium. AstraZeneca sued these generic companies for infringement of some of the Nexium patents. AstraZeneca eventually settled with each generic manufacturer. Under the settlement agreements, AstraZeneca paid the generic defendants significant sums in the form of cash or debt forgiveness in exchange for not challenging the validity of the Nexium patents and for delaying the launch of their respective generic products until the two main patents covering the drug product itself expired on May 27, 2014. Plaintiffs are union health and welfare funds that reimburse plan members for prescription drugs including Nexium. Plaintiffs alleged that the Nexium patents are invalid because they would have been obvious in light of earlier AstraZeneca patents and other references. The European Patent Office and the Canadian courts have held that the European and Canadian Nexium patents are invalid. Plaintiffs alleged that the settlement agreements between AstraZeneca and the 3 generic companies constituted unlawful agreements not to compete because of the likely invalidity of the Nexium patents, the size of AstraZeneca's payments to the generic defendants, and the fact that generic companies provided nothing to AstraZeneca other than an agreement not to compete. Plaintiffs contend that but for the 3 generic companies anti-competitive conduct, a generic version of Nexium would have been available as early as April 2008, thereby lowering the price through competition. They asserted that AstraZeneca overcharged for Nexium from April 14, 2008, to at least May 27, 2014. They claim damages under the antitrust and consumer protection laws of 24 states and the District of Columbia.6 The plaintiffs sought class certification for a class of third-party payors, such as the named plaintiffs, and individual consumers. The district count handling the case granted plaintiffs' motion for class certification. The defendants sought to appeal the class certification. Judge Dyke affirmed the decision of the district court in granting the motion for class certification, expressing that the lower court did not abuse its discretion in certifying the class and determining that at the certification stage, it had not shown that the future proceedings would not be manageable consistent with defendants' Seventh Amendment and due process rights. A copy of Judge Dyk's opinion dated January 21, 2015, is available at http://is.gd/28BD0Cfrom Leagle.com. Kannon K. Shanmugam, with whom Dane H. Butswinkas, Paul B. Gaffney, John E. Schmidtlein, Williams & Connolly LLP, Laurence A. Schoen, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., Jay P. Lefkowitz,Karen N. Walker, Kirkland & Ellis LLP, Kevin D. McDonald, Jonathan Berman, Jones Day, Timothy C. Hester, Covington & Burling LLP, Michael P. Kelly, William A. Zucker, McCarter & English, LLP, Leslie F. Su, Minerva Law, P.C., J. Douglas Baldridge, Lisa Jose Fales, Danielle R. Foley, Sarah Choi, and Venable LLP were on brief, for defendants-appellants Kenneth A. Wexler, with whom Wexler Wallace LLP, Steve D. Shadowen, Hillard & Shadowen LLC, J. Douglas Richards, Cohen Milstein Sellers & Toll, PLLC, Jayne A. Goldstein, Pomerantz Grossman Hufford, Dahlstrom & Gross LLP, Glen DeValerio, and Berman DeValerio were on brief, for plaintiffs-appellees Kathryn Comerfold Todd, Tyler R. Green, National Chamber Litigation Center, Inc., Jeffrey S. Bucholtz,Ashley C. Parrish, Karen F. Grohman, and King & Spaulding LLP, on brief for Chamber of Commerce of the United States of America, as amicus curiae in support of defendants-appellants Daniel E. Gustafson, Gustafson Gluek PLLC, Prof. Joshua P. Davis, Albert A. Foer, Richard Brunell, andRandy M. Stutz, on brief for American Antitrust Institute, as amicus curiae in support of plaintiffs-appellees Ellen Meriwether, Cafferty Clobes Meriwether & Sprengel, LLP, and David A. Balto, on brief for Community Catalyst, Inc., National Legislative Association for Prescription Drug Prices, United States Public Interest Research Group, and American Independent Business Alliance, as amici curiae in support of plaintiffs- appellees Scott L. Nelson and Julie A. Murray, on brief for Public Citizen Litigation Group, as amicus curiae in support of plaintiffs- appellees The First Circuit panel consists of Circuit Judges Timothy B. Dyk, Juan R. Torruella and William J. Kayatta, Jr. AUTOZONERS LLC: Faces "Carr" Suit in Alabama Over FLSA Violations ----------------------------------------------------------------- Hope M. Carr, Dwight Bryant, Jr., Allen S. Mobley, Jr., Mark W. Clark, Jr., and Paul Loy, on behalf of themselves and other persons similarly situated v. Autozoners LLC and AutoZone Stores Inc., Case No. 5:15-cv-00356-IPJ (N.D. Ala., February 27, 2015) seeks relief under the Fair Labor Standards Act. The Plaintiffs are represented by: John A. Wilmer, Esq. Walter A. Kelley, Esq. WILMER & LEE PA 100 Washington Street, Suite 200 P O Box 2168 Huntsville, AL 35804-2168 Telephone: (256) 533-0202 Facsimile: (256) 533-0302 E-mail: jwilmer@wilmerlee.com wkelley@wilmerlee.com - and - Kevin W. Jent, Esq. Rocco Calamusa, Jr., Esq. WIGGINS CHILDS PANTAZIS FISHER & GOLDFARB The Kress Building 301 19th Street North Birmingham, AL 35203-3204 Telephone: (205) 314-0549 Facsimile: (205) 254-1500 E-mail: kjent@wigginschilds.com rcalamusa@wigginschilds.com - and - Mitchell K. Shelly, Esq. ALEXANDER CORDER PLUNK & SHELLY, PC P O Box 1129 Athens, AL 35612 Telephone: (256) 232-1130 Facsimile: (256) 232-6699 E-mail: mshelly@acpbs.com BRONX-LEBANON HOSPITAL: Removes "Recio" Suit to S.D. New York ------------------------------------------------------------- The lawsuit styled Recio v. Bronx-Lebanon Hospital Center, Case No. 20059/2015E, was removed from the Supreme Court of the State of New York, County of the Bronx, to the U.S. District Court for the Southern District of New York (Foley Square). The District Court Clerk assigned Case No. 1:15-cv-01422-JGK to the proceeding. The action alleges race and national origin discrimination, disability discrimination and retaliation. Plaintiff Marlene Recio is a registered nurse licensed in the state of New York. She is a Latina female and a United States citizen of Dominican descent. The Plaintiff is represented by: Christine A. Rodriguez, Esq. LAW OFFICE OF CHRISTINE A. RODRIGUEZ 1350 Avenue of the Americas, 2nd Floor New York, NY 10019 Telephone: (212) 430-6525 Facsimile: (888) 349-2932 E-mail: christine@crodriguezlaw.com The Defendant is represented by: Roy W. Breitenbfich, Esq. Courtney A. Rogers, Esq. GARFUNKEL WILD, P.C. 111 Great Neck Road Great Neck, NY 11021 Telephone: (516) 393-2238 Facsimile: (516) 466-5964 E-mail: rbreitenbach@garfunkelwild.com crogers@garfunkelwild.com CANDICA LLC: Sued in Fla. for Violating Fair Debt Collection Act ---------------------------------------------------------------- Thomas Hansen, Beverly Hansen and Amy Lynn Mullins, on behalf of themselves and all others similarly situated v. Candica, LLC, a foreign limited liability company; Weinstein & Riley, P.S., Inc. f/k/a Weinstein, Pinson & Riley, P.S., Inc., a foreign profit corporation; Ophrys, LLC, a foreign limited liability company; and Antio, LLC, a foreign limited liability company, Case No. 8:15-cv- 00425-CEH-TGW (M.D. Fla., February 27, 2015) alleges violations of the Fair Debt Collection Practices Act. The Plaintiffs are represented by: Gregory Harrison Lercher, Esq. Ian Richard Leavengood, Esq. J. Andrew Meyer, Esq. LEAVENGOOD, DAUVAL, BOYLE & MEYER PA 3900 First St N, Suite 100 St. Petersburg, FL 33703-6109 Telephone: (727) 327-3328 Facsimile: (727) 327-3305 E-mail: glercher@leavenlaw.com ileavengood@leavenlaw.com ameyer@leavenlaw.com CARGILL INC: Accused of Harassment and Bias by Female Ex-Worker --------------------------------------------------------------- Rita Carey v. Cargill, Inc.; Cargill, Inc. dba Cargill Salt; and Does 1-50 inclusive, Case No. 3:15-cv-00922-WHO (N.D. Cal., February 27, 2015) alleges that for the duration of her employment, the Plaintiff experienced harassment and discrimination because she is a woman. Cargill, Inc., doing business as Cargill Salt, is a 150-year old multinational corporation that provides food, agriculture, financial and industrial products to the world. The Company does business as Cargill Salt in Newark, California. At the Newark facility, Cargill processes and packages food and industrial grade salt. The Plaintiff is represented by: Hunter Pyle, Esq. Tanya P. Tambling, Esq. SUNDEEN SALINAS & PYLE 428 Thirteenth Street, 8th Floor Oakland, CA 94612 Telephone: (510) 663-9240 Facsimile: (510) 663-9241 E-mail: hpyle@ssrplaw.com ttambling@ssrplaw.com CBE GROUP: Violates Fair Debt Collection Act, "Shasho" Suit Says ---------------------------------------------------------------- Ralph Shasho, on behalf of himself and all others similarly situated v. The CBE Group, Inc., John Does and John Does 1-25, Case No. 3:15-cv-01549-FLW-LHG (D.N.J., February 27, 2015) alleges violations of the Fair Debt Collection Practices Act. The Plaintiff is represented by: Yitzchak Zelman, Esq. LAW OFFICE OF ALAN J. SASSON PC 1669 East 12th Street Brooklyn, NY 11229 Telephone: (718) 339-0856 E-mail: yzelman@sassonlaw.com CHATTEM INC: Removes "Wiltz" Suit to California District Court -------------------------------------------------------------- The class action lawsuit styled Wiltz v. Chattem, Inc., et al., Case No. BC569573, was removed from the Superior Court of the State of California for the County of Los Angeles to the U.S. District Court for the Central District of California (Los Angeles). The District Court Clerk assigned Case No. 2:15-cv- 01352 to the proceeding. The lawsuit asserts fraud-related claims. Defendant Chattem, Inc. is represented by: Christopher M. Young, Esq. DLA PIPER LLP 401 B Street, Suite 1700 San Diego, CA 92101-4297 Telephone: (619) 699-2700 Facsimile: (619) 699-2701 E-mail: christopher.young@dlapiper.com CITIMORTGAGE INC: Removes "Kester" Suit to Arizona District Court ----------------------------------------------------------------- The class action lawsuit titled Kester v. CitiMortgage Incorporated, et al., Case No. CV2014-014330, was removed from the Maricopa County Superior Court to the U.S. District Court for the District of Arizona (Phoenix Division). The District Court Clerk assigned Case No. 2:15-cv-00365-NVW to the proceeding. The lawsuit is brought on behalf of "All property owners in Arizona whose properties were the subject of recordations by Defendants Citi and CR in the Office of the County Recorder during the applicable statutory limitations period that were notarized in the State of Arizona by employees of Defendants at a time when their Notary Licenses had been revoked or suspended." The Plaintiff is represented by: Andrew S. Friedman, Esq. Patricia Nicole Syverson, Esq. BONNETT FAIRBOURN FRIEDMAN & BALINT PC 2325 E Camelback Rd., Suite 300 Phoenix, AZ 85016 Telephone: (602) 776-5902 Facsimile: (602) 274-1199 E-mail: afriedman@bffb.com psyverson@bffb.com - and - David N. Lake, Esq. LAW OFFICES OF DAVID N LAKE 16130 Ventura Blvd., Suite 650 Encino, CA 91436 Telephone: (818) 788-5100 Facsimile: (818) 788-5199 E-mail: david@lakelawpc.com The Defendants are represented by: Lauren Elliott Stine, Esq. QUARLES & BRADY LLP Renaissance One Two North Central Avenue Phoenix, AZ 85004-2391 Telephone: (602) 229-5200 E-mail: lauren.stine@quarles.com - and - Lucia Nale, Esq. Thomas V. Panoff, Esq. Christopher S. Comstock, Esq. MAYER BROWN LLP 71 South Wacker Drive Chicago, IL 60606 Telephone: (312) 782-0600 Facsimile: (312) 701-7711 E-mail: lnale@mayerbrown.com tpanoff@mayerbrown.com ccomstock@mayerbrown.com COMMUNITY HEALTH: "Lutz" Suit Included in Security Breach MDL ------------------------------------------------------------- The class action lawsuit captioned Lutz v. Community Health Systems, Inc., et al., Case No. 2:14-cv-06433, was transferred from the U.S. District Court for the Eastern District of Pennsylvania to the U.S. District Court for the Northern District of Alabama (Southern). The Alabama District Court Clerk assigned Case No. 2:15-cv-00280-KOB to the proceeding. The lawsuit is included in the multidistrict litigation captioned In re: Community Health Systems, Inc., Customer Data Security Breach Litigation, MDL No. 2595. The actions in the litigation arose from the alleged electronic theft of personally identifiable information and personal health information of approximately 4.5 million customers or patients of common defendants Community Health Systems, Inc., and Community Health Systems Professional Services Corporation. The Plaintiff is represented by: Brian D. Penny, Esq. GOLDMAN SCARLATO KARON & PENNY PC 101 E. Lancaster Ave., Suite 204 Wayne, PA 19087 Telephone: (484) 342-0700 E-mail: penny@gsk-law.com Defendant Community Health Systems Inc. is represented by: Daniel A. Cutler, Esq. Stuart Turville O'Neal, III, Esq. BURNS WHITE LLC 100 Four Falls Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 Telephone: (484) 567-5700 E-mail: soneal@burnswhite.com dacutler@burnswhite.com Defendant Community Health Systems Professional Services Corporation is represented by: Theodore J. Kobus, III, Esq. BAKER & HOSTETLER LLP 45 Rockefeller Plaza New York, NY 10111 Telephone: (212) 589-4200 Facsimile: (212) 589-4201 E-mail: tkobus@bakerlaw.com COMMUNITY HEALTH: "Maes" Suit Included in Security Breach MDL ------------------------------------------------------------- The class action lawsuit entitled Maes, et al. v. Community Health Systems Professional Services Corporation, et al., Case No. 1:14- cv-01090, was transferred from the U.S. District Court for the District of New Mexico to the U.S. District Court for the Northern District of Alabama (Southern). The Alabama District Court Clerk assigned Case No. 2:15-cv-00317-KOB to the proceeding. The lawsuit is included in the multidistrict litigation captioned In re: Community Health Systems, Inc., Customer Data Security Breach Litigation, MDL No. 2595. The actions in the litigation arose from the alleged electronic theft of personally identifiable information and personal health information of approximately 4.5 million customers or patients of common defendants Community Health Systems, Inc., and Community Health Systems Professional Services Corporation. The Plaintiffs are represented by: Turner W. Branch, Esq. Margaret Moses Branch, Esq. Mary Lou Boelcke, Esq. BRANCH LAW FIRM 2025 Rio Grande Blvd. NW Albuquerque, NM 87104 Telephone: (505) 243-3500 Facsimile: (505) 243-3534 E-mail: tbranch@branchlawfirm.com mbranch@branchlawfirm.com mlboelcke@branchlawfirm.com Defendant Community Health Systems Professional Services Corporation is represented by: William C. Madison, Esq. Michael J. Dekleva, Esq. MADISON & MROZ PA 201 Third Street NW, Suite 1600 Albuquerque, NM 87102 Telephone: (505) 242-2177 Facsimile: (505) 242-7184 E-mail: wcm@madisonlaw.com mjd@madisonlaw.com - and - Daniel R. Warren, Esq. BAKER & HOSTETLER, LLP PNC Center, Suite 3200 1900 E. 9th Street Cleveland, OH 44114 Telephone: (216) 621-0200 Facsimile: (216) 696-0740 E-mail: dwarren@bakerlaw.com - and - Paul G. Karlsgodt, Esq. BAKER & HOSTETLER LLP 1801 California Street, Suite 4400 Denver, CO 80202 Telephone: (303) 861-0600 Facsimile: (303) 861-7805 E-mail: pkarlsgodt@bakerlaw.com COMMUNITY HEALTH: "Murphy" Suit Included in Security Breach MDL --------------------------------------------------------------- The class action lawsuit titled Murphy v. Community Health Systems, Inc., et al., Case No. 3:15-cv-00031, was transferred from the U.S. District Court for the Middle District of Tennessee to the U.S. District Court for the Northern District of Alabama (Southern). The Alabama District Court Clerk assigned Case No. 2:15-cv-00281-KOB to the proceeding. The lawsuit is included in the multidistrict litigation captioned In re: Community Health Systems, Inc., Customer Data Security Breach Litigation, MDL No. 2595. The actions in the litigation arose from the alleged electronic theft of personally identifiable information and personal health information of approximately 4.5 million customers or patients of common defendants Community Health Systems, Inc., and Community Health Systems Professional Services Corporation. The Plaintiff is represented by: Clinton H. Scott, Esq. GILBERT RUSSELL MCWHERTER PLC 101 North Highland Ave. Jackson, TN 38301 Telephone: (731) 664-1340 Facsimile: (731) 664-1540 E-mail: cscott@gilbertfirm.com - and - Edwin J. Kilpela, Jr., Esq. Gary F. Lynch, Esq. Jamisen A. Etzel, Esq. CARLSON LYNCH LTD PNC Park 115 Federal Street Suite 210 Pittsburgh, PA 15212 Telephone: (412) 322-9243 Facsimile: (412) 231-0246 E-mail: ekilpela@carlsonlynch.com glynch@carlsonlynch.com jetzel@carlsonlynch.com - and - Evan Buxner, Esq. THE BUXNER LAW FIRM 230 S Bemiston Avenue, Suite 500 St. Louis, MO 63105 Telephone: (314) 863-6000 - and - J. Douglas Gramling, Esq. ESTES, GRAMLING & ESTES PLC 19 E Dickson Street Fayetteville, AR 72701 Telephone: (479) 439-4124 Facsimile: (479) 521-6730 - and - Julia A. Beasley, Esq. BEASLEY ALLEN CROW METHVIN PORTIS & MILES PC PO Box 4160 Montgomery, AL 36103-4160 Telephone: (334) 269-2343 Facsimile: (334) 954-7555 E-mail: julia.beasley@beasleyallen.com - and - Karen Hanson Riebel, Esq. Kate M. Baxter-Kauf, Esq. LOCKRIDGE GRINDAL NAUEN PLLP 100 Washington Avenue South, Suite 2200 Minneapolis, MN 55401 Telephone: (612) 339-6900 Facsimile: (612) 339-0981 E-mail: khriebel@locklaw.com kmbaxter-kauf@locklaw.com COMPLETE PAYMENT: Judge Narrows Claims in "Zarichny" Suit --------------------------------------------------------- District Judge Stewart Dalzell of the Eastern District of Pennsylvania granted in part and denied in part defendants' motion in the case SANDRA ZARICHNY v. COMPLETE PAYMENT RECOVERY SERVICES, INC. et al., CIVIL ACTION NO. 14-3197 (E.D. Pa.) Plaintiff Sandra Zarichny is a college student who has on occasion rented course books from her college. Over a six-month period in 2013, she received 11 phone calls from the defendant Complete Payment Recovery Services, Inc. (CPRS) on her cell phone from (800) 873-5869, a number unknown to her that appeared to have been initiated by an automatic telephone dialing system, the last call made was on November 23, 2013. At the time she was receiving such call, she has no debt whatsoever. Following the November 23, 2013 phone call, Zarichny called the 800 number to inquire why she was receiving these calls. An unidentified female informed her that she owed money for two textbooks she had rented but not returned. Zarichny disputed that she owed money because she specifically remembered returning all of her rented course books, and contends no debt ever existed and she was never in default. Plaintiff filed a complaint against defendants Fidelity National Information Services (FIS) and CPRS, a wholly-owned subsidiary of Fidelity. Plaintiff made an amended complaint and alleges violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C., Section 1692 et se., and the Telephone Consumer Protection Act of 1991 (TCPA), 447 U.S.C. Section 227 et seq. Plaintiff seeks to bring this putative class action on behalf of herself and two classes of similarly situated individuals pursuant to Fed.R.Civ. P. 23. Defendants move to dismiss the first amended complaint and strike the putative class action claims. Defendants move to strike Zarichny's class action allegations and dismiss all claims asserted under the TCPA and FDCPA. They offer two reasons that Zarichny's allegations against FIS must be dismissed in their entirety. First, they contend that she failed to allege that FIS placed any calls to her as the TCPA requires or acted as a debt collector as the FDCPA defines that role. Second, they argue that CPRS's acts may not be imputed to its parent company because Zarichny has failed to allege that FIS dominates CPRS, or that CPRS is either an instrumentality of FIS or a sham corporation. Judge Dalzell granted in part and denied in part defendants' motion. Judge Dalzell granted defendants' motion to dismiss defendant FIS; and motion to strike the class allegations. He also granted their motion to dismiss plaintiff's claim against CPRS pursuant to the FDCPA, 15 U.S.C. Sections 1692c, 1692d and 1692f, but denied defendants' motion to dismiss plaintiff's claim against CPRS pursuant to the TCPA, 47 U.S.C. Section 227 et seq., and her claim against CPRS pursuant to the FDCPA, 15 U.S.C. Section 1692g. A copy of Judge Dalzell's memorandum dated January 21, 2015, is available at http://is.gd/7eO4mLfrom Leagle.com. SANDRA ZARICHNY, Plaintiff, represented by Arkady Eric Rayz, Esq. -- ERayz@kalraylaw.com -- at KALIKHMAN & RAYZ LLC - and - Gerald D. Wells, III, Esq. CONNOLLY WELLS & GRAY, LLP 2200 Renaissance Boulevard King of Prussia, PA 19406 Telephone: 610-822-3700 Facsimile: 610-822-3800 COMPLETE PAYMENT RECOVERY SERVICES, INC., Defendant, represented by Gerald E. Arth, Esq. -- garth@foxrothschild.com -- FOX ROTHSCHILD O'BRIEN & FRANKEL LLP, Joshua Horn, Esq. -- jhorn@foxrothschild.com -- FOX ROTHSCHILD O'BRIEN & FRANKEL LLP & Nicholas T. Solosky, Esq. -- nsolosky@foxrothschild.com -- at FOX ROTHSCHILD LLP. CSX CORP: Faces Class Action Over Train Derailment Damages ---------------------------------------------------------- Meghan Carr, writing for WNS-TV, reports that clean-up isn't the only thing the CSX Corporation is dealing with now, a class action lawsuit is filed against C-S-X and West Virginia American Water. On Feb. 16 a train derailed in Mount Carbon, WV, causing several towns surrounding the site to be evacuated immediately. "A lot of folks left with the clothes on their back which were pajamas and house slippers. So it wasn't a situation where anybody had any advanced warning and that's dramatic," said Anthony Salvatore, a lawyer in the class action lawsuit. As of Feb. 16 most of the residents affected by the train derailment were allowed to return to their homes, and now they begin to assess the damage done. On Feb. 18 a class action lawsuit was filed on behalf of Frank's Pizza and a resident in Fayette County. While there are only two named plaintiffs, hundreds of people could be affected. "The lawyers in the case will identify certain types of classes of the multitudes of people. Certain types of classes of claims for example property damage only, injury claims only, property and injury claims only," said Mr. Salvatore. Mr. Salvatore says he's not representing big businesses, instead small business owners and hardworking people. "It's the corner pizza shop, it's the lady down the street, it's the neighbor next door, it's average ordinary people that have been displaced and have suffered in some form or another," said Mr. Salvatore. Mr. Salvatore said one reason they have filed this class action suit is so they can bring in their own investigators to the site. The Federal Railroad Association has said the train that derailed was only going 33 mph in a 50 mph zone. They have not commented on whether the weather could have been a factor. DANIEL C. CONSUEGRA: Sued for Violating Fair Debt Collection Act ---------------------------------------------------------------- Ruben Cruz, on behalf of himself and all others similarly situated v. Law Office of Daniel C. Consuegra, P.L., a Florida Professional Limited Liablity Company, and Dyck-O'Neal, Inc., a Texas Corporation, Case No. 9:15-cv-80261-WPD (S.D. Fla., February 26, 2015) is brought over alleged violations of the Fair Debt Collection Practices Act. The Plaintiff is represented by: Brian William Warwick, Esq. Janet Robards Varnell, Esq. VARNELL & WARWICK, P.A. P.O. Box 1870 Lady Lake, FL 32158 Telephone: (352) 753-8600 Facsimile: (352) 753-8606 E-mail: bwarwick@varnellandwarwick.com jvarnell@varnellandwarwick.com - and - Austin Tyler Brown, Esq. PARKER , DUFRESNE, P.A. 8777 San Jose Blvd., Suite 301 Jacksonville, FL 32217 Telephone: (904) 733-7766 Facsimile: (904) 733-2919 E-mail: abrown@jaxlawcenter.com DIAMOND SUPPLY: Removes "Nall" Suit to California District Court ---------------------------------------------------------------- The class action lawsuit titled Marcus Nall v. Diamond Supply Company, et al., Case No. BC527457, was removed from the Superior Court of the State of California, County of Los Angeles, Central District, to the U.S. District Court for the Central District of California (Los Angeles). The District Court Clerk assigned Case No. 2:15-cv-01420-PA-PLA to the proceeding. The Plaintiff alleges a cause of action arising under the laws of the United States, including the Fair Labor Standards Act. The Plaintiff is represented by: D. Alan Harris, Esq. HARRIS AND RUBLE 4771 Cromwell Avenue Los Angeles, CA 90027 Telephone: (323) 962-3777 Facsimile: (323) 962-3004 E-mail: aharris@harrisandruble.com The Defendants are represented by: David H. Boren, Esq. Gregory N. Weisman, Esq. RITHOLZ LEVY SANDERS CHIDEKEL AND FIELDS LLP 421 South Beverly Drive, 8th Floor Beverly Hills, CA 90212 Telephone: (310) 282-9449 Facsimile: (310) 282-2549 E-mail: dboren@rlscf.com gweisman@rlscf.com DOLE FOOD: CEO Heads to Court to Defend 2013 Buyout --------------------------------------------------- Tom Hals, writing for Reuters, reports that Pineapple king David Murdock was set to head to a Delaware court on Feb. 23 to defend his 2013 buyout of Dole Food Co. Inc. against shareholders who claim they were short-changed and want more cash. Shareholders allege that Mr. Murdock, 91, drove down the value of Dole, the world's largest fruit and vegetable producer, through dealings that allowed him to buy the 60 percent of the company he did not own for $13.50 a share, or about $1.6 billion. Shareholders have taken aim at Mr. Murdock and Deutsche Bank, which provided financing and is alleged to have aided Murdock's scheme. Mr. Murdock's lawyers said in court papers he overpaid for Dole stock, and ran a fair and thorough sale process. The union pension funds that brought the Delaware case focused on the cozy relationship between Mr. Murdock and Deutsche Bank, which are alleged to have carried out his plan in a bid for financing fees. The bank financed Mr. Murdock's previous management buyout of Dole in 2003 and acted as an underwriter when he took the company public in 2009. Mr. Murdock, a self-made billionaire, was expected to testify on Feb. 23 about his relations with the special committee of Dole's board that was meant to negotiate for shareholders. "There is evidence that Murdock had previously threatened and taken punitive action against directors who did not accede to his wishes," wrote Travis Laster, the judge hearing the case, in a Feb. 5 order which sent the dispute to the nine-day trial. Mr. Laster of the Court of Chancery in Delaware, where Dole was incorporated, has earned a reputation for his tough line with conflicted advisers and bankers in the sales of the ambulance operator Rural/Metro and Del Monte Foods Co. Shareholders in both cases ended up recovering around $90 million, in part by showing bankers rigged the sale process to secure financing fees. Deutsche Bank declined to comment and Dole did not respond to a request for comment. The Dole trial will determine the outcome of two different lawsuits. One is a class action on behalf of all former Dole shareholders, which turns in part on whether the sale process was fair. Separately, several hedge funds have brought an appraisal action in which they asked Mr. Laster to determine a fair price for their Dole stock, regardless of the process. The cases are In re Dole Food Co Inc Stockholder Litigation and In re Appraisal of Dole Food Co Inc, Delaware Court of Chancery, Nos. 8703 and 9079. DREAM ON ME: Recalls 2-in-1 Bassinet to Cradles ----------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Dream on Me Inc., of South Plainfield, N.J., announced a voluntary recall of about 13,000 2-in-1 Bassinet to Cradle. Consumers should stop using this product unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The wire supports on the sides of the bassinet can disconnect causing the fabric sides to lower; posing a risk that infant can fall out or become entrapped and suffocate. This recall involves the 2-in-1 Bassinet to Cradle, sold in pink, blue, green, and white. The bassinet has metal frame supports and fabric sides with a removable half-canopy on the top. The frame can also be adjusted with two rocking legs on each end of the bassinet. It is designed with fabric handles and the option to remove the bassinet from the frame to use the bassinet portion as a "by the bed" sleeper product. The recalled model numbers are 439-A, 439-B, 439-G, 439-P and 439-W and can be found on a tag which is located under the mattress pad of the bassinet. This tag is a removable tag you see in the store but is removed prior to use. Dream on Me has received one incident of the wire frame support bracket failing and the fabric portion of the bassinet collapsing while an infant was asleep in the cradle. No injuries have been reported. Pictures of the Recalled Products available at: http://is.gd/vh9khW The recalled products were manufactured in China by Shanghaid Daafu Baby, of China and sold at Amazon.com, Walmart.com, Wayfair.com, ToysRUs.com and Kohls.com from May 2012 to October 2014 for about $60. Consumers should immediately stop using the product and contact Dream On Me to obtain a free repair. In the meantime, parents are urged to find an alternate, safe sleeping environment for the child, such as a crib that meets current safety standards or play yard depending on the child's age. EBAY INC: Faces New Class Suit for Collecting of Final Value Fees ----------------------------------------------------------------- EBay collects "final value fees" on unfinished transactions, despite assurances that it does not, a class alleges, echoing claims from ongoing federal litigation. The case is captioned Joel Duncan v. EBay Inc., in the Superior Court of the State of California for the County of Santa Clara. ENDO PHARMACEUTICALS: Sued for Misrepresenting Testosterone Drug ---------------------------------------------------------------- David Smith and Christina Smith v. Endo Pharmaceuticals Inc., Endo International, PLC, Watson Laboratories, and Actavis Pharma, Inc., Case No. 1:15-cv-01767 (N.D. Ill., February 27, 2015) is brought on behalf of the Plaintiff, who was prescribed and supplied with, received and who has taken and applied the prescription drug Testosterone Enanthate manufactured, produced and sold by the Defendants. The Plaintiffs allege that the Defendants misrepresented that Testosterone Enanthate is a safe and effective treatment for hypogonadism or "low testosterone," when in fact the drugs cause serious medical problems, including life threatening cardiac events, strokes, and thrombolytic events. Endo Pharmaceuticals, Inc., is a Delaware corporation headquartered in Malvern, Pennsylvania. Endo Pharmaceuticals, Inc. is a wholly owned subsidiary of Endo International PLC -- a corporation headquartered in Dublin, Ireland. Watson Laboratories, Inc., is a Nevada Corporation, a subsidiary of Watson Pharmaceuticals, with its principal place of business in Corona, California. Actavis Pharma, Inc., is a Delaware corporation headquartered in Parsippany, New Jersey. The Plaintiffs are represented by: Edward A. Wallace, Esq. Corey G. Lorenz, Esq. WEXLER WALLACE LLP 55 W. Monroe St. Suite 3300 Chicago, IL 60614 Telephone: (312) 346-2222 Facsimile: (312) 346-0022 E-mail: eaw@wexlerwallace.com cgr@wexlerwallace.com ENTERPRISE HOLDINGS: Faces "Fisher" Suit Alleging FCRA Violations ----------------------------------------------------------------- Keana Fisher, individually, and on behalf of of All Others Similarly Situated v. Enterprise Holdings, Inc., a Missouri Corporation, and Enterprise Rent-A-Car Company of Los Angeles, LLC, Case No. 4:15-cv-00372-AGF (E.D. Mo., February 26, 2015) alleges violations of the Fair Credit Reporting Act. The Plaintiff is represented by: J. Christopher Wehrle, Esq. WEHRLE LAW LLC 7750 Clayton Road, Suite 102 St. Louis, MO 63117 Telephone: (314) 614-4843 E-mail: chris@wehrlelaw.com ENVISION HEALTHCARE: Faces Suit Over Patients' Records ------------------------------------------------------ Writing for Courthouse News Service, Monica Pais reports that the operators of Aventura Hospital in Miami failed to safeguard patient records, leaving them vulnerable to identity theft and exposure of their personal health information, a class claims in court. In a complaint filed in Miami Federal Court, named plaintiff Kellie Lynn Case says she is one of thousands of current and former patients whose personal information was entrusted to defendants Hospital Corporation of America and Envision Healthcare Corporation. Unfortunately, she says, defendants failed to safeguard their patients' sensitive information, including their names, dates of birth, and protected health information as defined by the Health Insurance Portability and Accountability Act or HIPAA. Upon admission to their hospitals and facilities defendants provided patients with a "Notice of Privacy Practices" stating that they would keep their information confidential. This notice is also available on their websites. Case says that defendants used their data security and management practices statements through their privacy policies and public representations "to falsely inflate the advertised utility of their services, thus allowing Aventura Hospital to charge patients higher costs for treatment." On September 2014, Case claims that defendants told their patients that without authorization an employee managed to get access to over 85,000 patient records at the Aventura Hospital during a period of nearly two years, from September 13, 2012 thru June 9, 2014. "Unfortunately, it took a large-scale medical data breach to reveal -- for the third time -- that defendants failed to provide their patients with the level of data protection that they promised and paid for," the complaint says. The complaint claims that due to their lack of security services and failure to protect their patients' electronically-stored confidential information defendants violated the Health Insurance Portability and Accountability Act and the Industry Standard Data Protection Protocols. According to Florida Statutes the "patient's records are confidential and must not be disclosed without the consent of the patient or his or her legal representative." Defendants failed to properly train and supervise their employees who were in charge of viewing and accessing the records of their patients; making it easier for them to steal and misuse sensitive information, the complaint claims. Case says that she did not receive all of the services that she paid for in the Aventura Hospital, and that that if she would have known of defendants' failure to protect their patients information, she would have paid less for their services or would not have paid anything at all. She seeks compensatory damages for breach of express contract, breach of implied contract and unjust enrichment. The Plaintiff is represented by: Edmund Normand, Esq. NORMAND LAW PLLC 4381 New Broad Street Orlando, FL 32814-6045 Telephone: (407) 625-9043 E-mail: Ed@EdNormand.com EQUINOX HOLDINGS: Settles Wage Class Action for $4 Million ---------------------------------------------------------- Brandon Lowrey and Ben James, writing for Law360, report that Equinox Holdings Inc. will pay up to $4 million to settle claims that it failed to fully pay or provide breaks to more than 1,000 massage therapists, aestheticians and nail technicians in California under a deal preliminarily approved on Feb. 20, according to a court official. The proposed settlement includes a maximum payout of $4 million, including $1.2 million in attorney's fees, a Private Attorney General Act payment of $18,750 to the California Labor and Workforce Development Agency, and payments of $25,000 each to the three named plaintiffs. Up to $2.6 million will be available for class members' claims, and Equinox will pay class members at least $1.3 million, according to the motion for preliminary approval of the deal. Plaintiffs Nicole Leisinger-Reed, Tanya L. Fox and Ve Magni sued in March 2012, alleging Equinox failed to pay all wages owed to its non-exempt service providers at 18 California locations failed to provide meal and rest breaks. All three worked at Equinox's club in West Hollywood. The parties reached their agreement while the plaintiffs' motion for class certification was pending. The plaintiffs dropped the motion in October while negotiating the terms of the deal, according to court documents. The deal gives participating class members at least $22.94 for each shift worked during the class period from March 2008 to October 2014, according to the settlement motion. In exchange, the class will release Equinox of claims from March 29, 2008 through Oct. 7, 2014 that could reasonably have arisen from the same facts. Equinox recently settled another class action brought by California workers alleging labor law violations. In April 2014, Equinox paid $2.9 million to hundreds of membership sales advisers who said they weren't paid proper overtime wages or provided meal breaks. The class is represented by Michael D. Singer, Jeff Geraci and Kimberly D. Neilson -- kneilson@ckslaw.com -- of Cohelan Khoury & Singer, and Andrea L. Cook and Julie A. Langslet -- contactus@alcooklaw.com -- of Andrea Cook & Associates. Equinox is represented by Frank M. Liberatore -- LiberatF@jacksonlewis.com -- Chad D. Bernard -- BernardC@jacksonlewis.com -- Shagha Balali and Nancy Villarreal of Jackson Lewis LLP. The case is Nicole Leisinger-Reed et al. v. Equinox Holdings Inc. et al., case number BC481860, in the Superior Court of the State of California, County of Los Angeles. EVEREST COLLEGE: Ottawa Lawyer Mulls Class Action ------------------------------------------------- Meghan Hurley, writing for Ottawa Citizen, reports that on the same day Everest College filed for bankruptcy protection following the closure of its 14 Ontario campuses, an Ottawa lawyer says he's considering a class-action lawsuit against the school and its California-based parent company. Michael Crystal with Ottawa's Spiteri and Ursulak law firm said he's been in contact with several students since the Ministry of Training, Colleges and Universities suspended the career college's registration in the province. "(Students) should have been advised that there could be complications in completing their year," Mr. Crystal said. "It sounds like a number of them were caught off-guard and were about to graduate." Mr. Crystal said many of the students affected are single mothers who took out loans to pay for school and paid for their children to attend daycare while they completed their education. As Mr. Crystal investigated the impact of the school closure on potential clients, Everest College's parent company, Corinthian Colleges, said in a statement it was forced to file for bankruptcy protection when the Ministry of Training, Colleges and Universities suspended its registration. "We are extremely disappointed that the ministry has taken these abrupt actions," Jack Massimino, the chairman and CEO of Corinthian Colleges, said in a statement. "Our Canadian subsidiary had been working with the ministry for an extended period of time with the goal of achieving a satisfactory outcome for students, employees and other stakeholders in Canada." Reza Moridi, minister of Training, Colleges and Universities, released a statement on Feb. 20 on the Everest College situation. The minister said the province and the superintendent of private career colleges would "work to assess student access to training completion opportunities or refunds, depending on student choice. The Superintendent and Ministry staff will do everything they can to facilitate training completions. The government is also committed to helping displaced workers and affected communities get back on their feet as soon as possible." Corinthian Colleges said Everest College had about 2,450 students and 450 employees in Ontario at the time the campuses were closed. Shocked students gathered outside the St. Laurent Centre campus on Feb. 19, struggling to understand what happened. Students were told they might get only a partial refund of their tuition, which would make it almost impossible for many to switch to another school. On Feb. 20, some students seemed to catch a break. Michelle Scott, a single mother who was taking the personal support worker program, said she has enrolled in Herzing College's personal support worker program. The offer to transfer to Herzing College still stands even if Scott doesn't receive a full refund from Everest College, Scott said. "I've never had anybody in my entire life do something out of the kindness of their heart in such a great way," Scott said. "It's the most beautiful thing. I couldn't believe it." Dave McCormick, the president of Herzing College's St. Laurent Centre campus, said the school will absorb the cost of Scott's course if she isn't given a refund from Everest College. Mr. McCormick said Herzing College is trying to accommodate as many displaced students as they can by reducing tuition by whatever students have already paid to Everest College. When Algonquin College president Cheryl Jensen -- rachelj@rgrdlaw.com -- heard about the closure, she contacted the ministry to let them know the college is available to help. Ms. Jensen said a meeting will be planned so displaced students can get information about transferring to Algonquin College. Ms. Jensen said she encourages all students -- even those without a high school education -- to apply to a similar program at Algonquin College. As a mature student, they can still be considered for the program. Everest College was looking for a new owner last July after its parent, Corinthian Colleges, said it planned to sell or close all Ontario campuses. The company previously came under scrutiny when allegations that Corinthian Colleges falsified job-placement data in marketing claims led to an investigation by the U.S. Department of Education, which resulted in financial strains when federal funds were withheld. Corinthian Colleges then agreed to close about a dozen campuses in the U.S. and place the rest up for sale. In the Feb. 20 news release, the minister of Training, Colleges and Universities included "important facts" for students: * Affected students are encouraged to assemble and maintain detailed records regarding their progress in their program, and any payments they may have made to Everest College in relation to that program. * Students can contact the ministry by e-mail at TCAF-TCU@ontario.ca or at (416) 314-0500 or toll free 1-866-330- 3395. Staff of Everest College can call the Employment Ontario hotline at 1-800-387-5656 for assistance. * Information packages, including information on how to complete a TCAF student claim package, were distributed to students at Everest campuses on Feb. 19. Affected students who were not able to receive an information package, or have more questions related to TCAF, should contact the ministry at TCAF- TCU@Ontario.ca * It is the superintendent's role to arrange training completions. Students who make their own arrangements may inadvertently impact their eligibility for funding from the Training Completion Assurance Fund. * Students who are seeking training completions through the Training Completion Assurance Fund (TCAF) should ensure the superintendent has their contact information. They may also wish to collect the necessary documents and information in preparation for submitting their TCAF student claim package. They should contact the ministry if they need an information package or have any further questions. * For OSAP students who choose to complete their training at another institution, the government will ensure that their loans do not enter repayment until six months after the completion date of their new training. For students who choose not to complete their training at another institution, loans will not be due for repayment until six months after the date that they would have completed their program had Everest College not closed. FLOW SPORTS: Recalls Snowboard Bindings Due to Fall Hazard ---------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Flow Sports Inc., of San Clemente, Calif., announced a voluntary recall of about 10,400 Flow 2014 Flite-series snowboard bindings. Consumers should stop using this product unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. A pin can disengage and cause the binding to open, posing a fall hazard. This recall involves Flow 2014 Flite-series snowboard bindings with model names Flite, Haylo, Micron Youth, Flite LTD and Flite MTN. The bindings have a snaplock lever on the rear, a cable adjustment dial on the side of the baseplate, a matte texture finish on the baseplate and a glossy "Flow" and Flow's logo on the hiback. They are black; black and white; black, white and blue; or black, white, blue and yellow. "Flow" is printed on the side of the bindings. Flow Sports has received 30 reports of the pins disengaging from the bindings. No injuries have been reported. Pictures of the Recalled Products available at: http://is.gd/Has0fS The recalled products were manufactured in China and sold at Dick's Sporting Goods, EVO, SNSboards, Sport Chalet, The House, Wired Sport, Zumiez and other stores nationwide and online from July 2014 through February 2015 for between $110 and $150 for the bindings. Consumers should immediately stop using the recalled snowboard bindings and contact Flow Sports for a free repair or to return the bindings for free replacement bindings or a full refund. FOOD SERVICE: Faces Class Action in Conn. Over FLSA Violations -------------------------------------------------------------- Margaret Harding and Ben James, writing for Law360, report that a food service management company that serves 8 million meals a day is accused of shirking overtime pay by misclassifying assistant managers, in a Fair Labor Standards Act class action filed on Feb. 19 in a Connecticut federal court. Carla Rosario, who worked in a cafe in the Mohegan Sun Casino in Montville, Conn., accused Compass Group USA of classifying her and other assistant managers as exempt employees even though they regularly spend more than 50 percent of their time performing manual labor, including cooking, baking, replenishing the salad and soup bar, and washing dishes. "The primary value of assistant managers to defendant is not any managerial tasks they may perform, but rather the nonexempt, manual labor they perform for defendant," the complaint said. In addition to dining services in schools, arenas, museums and other locations, Compass also has provided catering services for the U.S. Open, the Academy Awards and the 2002 Olympic Winter Games, according to its website. According to the complaint, Ms. Rosario worked in the cafe from 11:00 p.m. to 9 a.m. five days per week, and frequently worked more than the 50 hours she was scheduled. "Assistant managers are paid on a salaried basis, at a flat weekly rate, regardless of how many hours they worked per week," the complaint said. "Assistant managers' compensation is comparable to that of defendant's nonexempt employees when the overtime they spend on the job is taken into account." Ms. Rosario said she did not have the authority to hire or fire employees without approval from the human resources department, was closely supervised by more senior employees, and did not have to "exercise discretion or independent judgment on matters of significance," the complaint said. She is seeking unpaid overtime wages, liquidated damages, pre- and post-judgment interest, and attorneys' fees and costs. The potential size of the class is not stated in the complaint. Compass employs more than 220,000 associates in North America, according to its website. In February 2014, Compass agreed to pay a maximum of $5 million to settle a class action brought on behalf of an estimated 22,000 current and former workers. A former baker filed the suit in a California court in 2010 accusing Compass of failing to pay hourly and overtime wages and failure to provide rest and meal periods. The plaintiffs claimed Compass' work demands led to employees working off the clock, which resulted in workers not getting the proper hourly and overtime pay. Ms. Rosario is represented by Richard E. Hayber -- rhayber@hayberlawfirm.com -- of Hayber Law Firm LLC. The case is Rosario v. Compass Group USA LLC, case number 3:15-cv- 00241, in the U.S. District Court for the District of Connecticut. FOREST LABORATORIES: 1st Cir. Affirms Dismissal of Lexapro Suit --------------------------------------------------------------- Parents in California cannot compel manufacturers to replace FDA- approved labels of antidepressant Lexapro, which they say overstates the effectiveness of the drug, reports Rose Bouboushian, citing a 1st Circuit ruling. Randy and Bonnie Marcus filed a class action in Los Angeles Federal Court in May 2013, claiming Forest Laboratories Inc. and Forest Pharmaceuticals Inc. falsely advertised antidepressant medication Lexapro, in violation of state consumer protection laws. The couple says they bought Lexapro to treat their adolescent son's depression in April 2009, based on its FDA- approved label, only to find it no more effective than a placebo. According to the complaint, the FDA's standards for approving antidepressants are "minimal," as the agency accepted "flawed" and "fraudulent" data from studies of Lexapro and Celexa, another selective serotonin reuptake inhibitor. The Marcuses say that "data was manipulated to create the appearance of statistical significance" in the Celexa study, while the Lexapro study showed a clinically insignificant difference between that drug and a placebo for acute treatment of depression in adolescents. The plaintiffs seek a permanent injunction on behalf of all Californians who purchased Lexapro for an adolescent from March 2009 to present, and assert violations of the state's Consumer Legal Remedies Act, False Advertising Law, and Unfair Competition Law. The Judicial Panel on Multidistrict Litigation transferred the case to Massachusetts as part of In re Celexa and Lexapro Marketing and Sales Practices Litigation. The Massachusetts court then granted Forest's motion to dismiss, relying on Federal Food, Drug, and Cosmetic Act preemption and California's safe harbor doctrine. The 1st Circuit affirmed the lower court's ruling February 20, finding that federal law impliedly preempts the Marcuses' claims because the Federal Food, Drug, and Cosmetic Act prohibits Forest from independently changing its FDA-approved label. The judge tossed aside the plaintiffs' request that Forest change Lexapro's label, which federal law says must reflect "newly acquired" information. "We find only two fleeting references to academic articles published after the FDA's approval of the Lexapro label," Judge William Kayatta, said, writing for the three-judge panel. "Plaintiffs make no claim that these two academic articles are based on new data. They instead contend that these two studies are metaanalyses that were not included in Forest's submission to the FDA." The judge later added: "We can find no precedent -- and plaintiffs point to none -- that would have allowed Forest to use the [changes being effected] CBE procedure to alter the FDA label in the manner that plaintiffs allege is necessary so as to render it not 'misleading.' Indeed, plaintiffs seem to concede this in their prayer for relief, as they ask the court to 'direct[] Forest to seek FDA approval of a new [drug] label.' "Plaintiffs are thus stymied: Forest could not independently change its label to read as plaintiffs say it should have read in order to comply with California law," the ruling continues. "That construction of California law upon which plaintiffs rely -- even assuming it is correct notwithstanding the safe harbor doctrine -- is therefore preempted by federal law." Actavis, which acquired Forest last year, reportedly earned more than $4.63 billion in revenue in 2014. The Appellant is represented by: R. Brent Wisner, Esq. BAUM, HEDLUND, ARISTEI & GOLDMAN, P.C. 12100 Wilshire Blvd., Suite 950 Los Angeles, CA 90025 Telephone: (310) 207-3233 E-mail: RBWisner@baumhedlundlaw.com The Appellee is represented by: Edwin G. Schallert, Esq. DEBEVOISE & PLIMPTON LLP 919 Third Avenue New York, NY 10022 Telephone: (212) 909-6000 Facsimile: (212) 909-6836 E-mail: egschall@debevoise.com The appellate case is Randy and Bonnie Marcus, on behalf of themselves and all other persons similarly situated Plaintiffs, Appellants v. Forest Laboratories, Inc. and Forest Pharmaceuticals, Inc., Defendants, Appellees, Case No. 14-1290, in the United States Court of Appeals for the First Circuit. The District Court case is Randy and Bonnie Marcus v. Forest Laboratories, Inc. and Forest Pharmaceuticals, Inc., Case No. 13-11343-NMG, in the U.S. District Court for the District of Massachusetts. FORTEGRA FINANCIAL: Settles Class Action Over Tiptree Merger ------------------------------------------------------------ The following statement is being issued by Schulte Roth & Zabel LLP regarding the Fortegra Financial Corporation Securities Litigation: IN THE CIRCUIT COURT FOR THE FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA IN RE FORTEGRA FINANCIAL CORPORATION SHAREHOLDER LITIGATION Case No. 16-2014-CA-005825-XXXX-MA SUMMARY NOTICE IF YOU HELD COMMON STOCK OF FORTEGRA FINANCIAL CORPORATION ON AUGUST 12, 2014, YOU COULD BE A CLASS MEMBER IN A CLASS-ACTION SETTLEMENT A settlement has been proposed in a class-action lawsuit pending in the Circuit Court for the Fourth Judicial Circuit, in and for Duval County, Florida between plaintiffs Shiva Y. Stein and Carol Hickey ("Plaintiffs"); Fortegra Financial Corporation ("Fortegra"); Tiptree Operating Company, LLC, Tiptree Financial Inc., Caroline Holdings, LLC, and Carolina Merger Sub, Inc. (together, "Tiptree"); and certain individual defendants that comprise Fortegra's Board of Directors (together, with Fortegra and Tiptree, the "Defendants"). If you are a class member in the class-action settlement (a "Settlement Class Member"), you (1) will be bound by any judgment entered in this Action whether or not you actually receive this Notice; and (2) may not opt out of the Settlement Class. Class Membership. You are a Settlement Class Member if you were a record holder or beneficial owner of common stock of Fortegra (together with its predecessors, successors, parents, subsidiaries, divisions, and affiliates) on August 12, 2014 and held such shares through and including December 4, 2014, the closing date of the merger. Subject Matter of Lawsuit. On August 11, 2014, Fortegra and Tiptree entered into an Agreement and Plan of Merger, pursuant to which Tiptree would acquire Fortegra for $10.00 per share of Fortegra common stock (the "Merger"). In connection with the execution of the Merger Agreement, certain majority stockholders executed a Written Consent of Stockholders in Lieu of Meeting, thereby approving the Merger and eliminating the need for a shareholder vote on it. Fortegra and Tiptree jointly announced the Merger the following day. The Plaintiffs challenged the merger on the grounds that, among other things, the Fortegra board of directors breached its fiduciary duties in connection with the Merger, the Agreement and Plan of Merger, and the disclosures made by Fortegra concerning the Merger. Settlement Terms. In consideration for the settlement and, among other things, the dismissal with prejudice of the class-action lawsuit, the Company and Tiptree agreed to make and made the Supplemental Disclosures regarding the Merger in a Form 8-K filed with the SEC on or about October 14, 2014. Options for Class Members. Any Settlement Class Member may, but is not required to, appear at the Settlement Hearing in person or by counsel and be heard in support of, or in opposition to, the Settlement, the entry of the Order and Final Judgment, or any other matter to be considered at the Settlement Hearing. If a Settlement Class Member wishes to oppose or contest the Settlement at the Settlement Hearing, the Settlement Class Member must follow the procedures set forth in the "Notice of the Settlement to Settlement Class Members," available on the website at www.fortegrafinancialshareholderlitigation.com. For more information: Call toll free 1-877-297-1200; visit the website at www.fortegrafinancialshareholderlitigation.com or write to Fortegra Financial Shareholder Litigation, c/o Gilardi & Co. LLC, P.O. Box 990 Corte Madera, CA 94976-0990. FPI MANAGEMENT: Nordrehaug & Bhowmik Files Class Action in Calif. ----------------------------------------------------------------- A class action lawsuit was filed on December 23, 2014 by the San Francisco employment attorneys at Blumenthal, Nordrehaug & Bhowmik against FPI Management, Inc. The complaint alleges that FPI Management, Inc. failed to compensate their California hourly employees the proper overtime wages and also allegedly failed to provide the proper meal and rest periods. The FPI Management class action, Case No. 34-2014-00173218 is currently pending in the Sacramento County Superior Court for the State of California. The class action lawsuit alleges that FPI Management, Inc. failed to provide their California employees paid on an hourly basis the correct overtime wages. The California Labor Code makes it mandatory for employers to pay their employees overtime wages at 1.5 times the employees' regular rate of pay when an employee works more than eight hours in a workday and/or in excess of forty hours in a workweek. Furthermore, the complaint alleges that FPI Management, Inc. did not provide their employees with thirty minute uninterrupted meal breaks prior to their fifth hour of work due to the company allegedly failing to have a proper meal break policy. In addition, the Class Action also asserts a claim for alleged unpaid reporting time wages stemming from Defendant's alleged requirement that their California employees respond to calls and engage in additional work performing various maintenance tasks and/or providing assistance to tenants who have been locked out of their apartments, among other things. California law requires an employer to pay an employee for two (2) hours at the employee's regular rate of pay when an employee is required to report to work for a second time in any one workday and is given less than two (2) hours of work on the second reporting. For more information about the class action lawsuit against FPI Management, Inc. call (866) 771-7099 to speak to an experienced San Francisco employment attorney today. Blumenthal, Nordrehaug & Bhowmik is a San Francisco employment law firm that represents employees in California who have been wrongfully terminated, denied proper overtime pay, denied payment of earned commission wages, and also employees who have been improperly denied their meal and rest breaks. FRESENIUS USA: Suit Over GranuFlo & NaturaLyte Stays in Dist. Ct. ----------------------------------------------------------------- Chief District Judge Jesus G. Bernal of the Central District of California denied plaintiffs' motion to remand the case Jeretha Baker, et al. v. Fresenius USA, Inc., et al., CASE NO. 14-9698-JGB (AGRX) (C.D. Cal.) Jeretha Baker and 49 other individuals filed a complaint against the defendants Fresenius USA, Inc., Fresenius USA Manufacturing, Inc., Fresenius Medical Care Holdings, Inc., Fresenius Medical Care North America, Inc., Fresenius USA Marketing, Inc., Walter L. Weisman, Ben Lipps, and fictitious persons in the Superior Court of California, County of Los Angeles, on June 27, 2014. The complaint asserted products liability claims related to personal injuries and death resulting from the use of defendants' products GranuFlo Dry Acid Concentrate and NaturaLyte Liquid Acid Concentrate. Numerous other "GranuFlo/NaturaLyte" cases were also filed in California state courts and on July 16, 2014, the plaintiffs filed a request to coordinate their claims into the judicial council coordinated proceedings (JCCP) in which the JCCP court granted the petition. Defendants filed their Notice of Removal on December 18, 2014. Plaintiffs moved to remand on January 20, 2015. Chief District Judge Bernal denied plaintiffs' motion to remand and vacated a March 2, 2015, hearing, expressing that the defendants timely removed within 30 days following the issuance of a case that changed the law so as to render removable a previously non-removable case. A copy of Chief Judge Bernal's order dated February 26, 2015, is available at http://is.gd/UHDlTyfrom Leagle.com. Jeretha Baker, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Johnnie Costello, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Sharon Burns, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Don'Nitta Carter, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Freida Jackson, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Reynaldo Echeverria, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Conrad Henderson, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Suzette Barnes, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Michael Barnett, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Carmen Carey, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Francisco J. Casarez, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Adam Chairez, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Edward Cherry, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Mary De La Paz, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Saul Evans, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Christine Faison, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Annette Alexander, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Fermin Flores, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Betty Gilbert, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Demetrice Walker, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Ramsey Hall, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Joy Cox, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Barbara Henry, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Amos Jackson, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP. George Jackson, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Patricia Jefferson, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Sharon Jones, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Trevor Jones, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Jarvis Jones, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Marilyn Kuilan, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Levi Lewis, II, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Jeff Lintz, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Onika Ford, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Delores Maxwell, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Michael Frenke, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Roosevelt Brim, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Shane Mosley, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Blanka Clare, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Rick Myers, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Rona Napier, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Rodney Newman, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Jaime Patrick, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Gloria Predregon, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Anthony Ferguson, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Tammy Ramey, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Mary Leavitt, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Cathy Schran, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Daniel Smith, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Paula Montgomery-Spencer, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Doris Vega, Plaintiff, represented by Baharak Dejban, Khorrami Boucher, LLP, Helen E Zukin, Kiesel Law LLP, Matthew A Young, Kiesel Law LLP, Paul R Kiesel, Kiesel Law LLP, Raymond Paul Boucher, Khorrami Boucher LLP & Shawn Khorrami, Khorrami Boucher, LLP Fresenius USA Manufacturing, Inc., Defendant, represented by David H Stern, Hughes Hubbard and Reed LLP, Juanita Rose Brooks, Fish and Richardson PC & Carolin Sahimi, Hughes Hubbard and Reed LLP Fresenius USA, Inc., Defendant, represented by David H Stern, Hughes Hubbard and Reed LLP, Juanita Rose Brooks, Fish and Richardson PC & Carolin Sahimi, Hughes Hubbard and Reed LLP Fresenius Medical Care Holdings, Inc., Defendant, represented by David H Stern, Hughes Hubbard and Reed LLP, Juanita Rose Brooks, Fish and Richardson PC & Carolin Sahimi, Hughes Hubbard and Reed LLP Fresenius USA Marketing, Inc., Defendant, represented by David H Stern, Hughes Hubbard and Reed LLP Ben Lipps, Defendant, represented by David H Stern, Hughes Hubbard and Reed LLP, Juanita Rose Brooks, Fish and Richardson PC & Carolin Sahimi, Hughes Hubbard and Reed LLP Walter L. Weisman, Defendant, represented by Colin H Murray, Baker and McKenzie LLP & Keith L Wurster, Baker and McKenzie LLP Fresenius Marketing USA, Inc., Defendant, represented by David H Stern, Hughes Hubbard and Reed LLP,Juanita Rose Brooks, Fish and Richardson PC & Carolin Sahimi, Hughes Hubbard and Reed LLP GADSDEN, AL: Accused of Running a Debtor's Prison for Poor People ----------------------------------------------------------------- Courthouse News Service reports that Gadsden, Ala. runs a "debtor's prison" by jailing people who are too poor to pay their traffic fines, a class action claims in Alabama Federal Court. GHIRARDELLI CHOCOLATE: $5.25MM Deal in Fake White Choco Suit OK'd ----------------------------------------------------------------- Writing for Courthouse News Service, Nick McCann reports that a federal judge approved a $5.25 million class action settlement that claims Ghirardelli's white chocolate chips do not contain any white chocolate. Lead plaintiff Scott Miller bought a package of Ghirardelli white chocolate chips in June 2012, and thought they did not taste like white chocolate. "He reviewed the ingredients list on the packaging and noticed that the white chips contained no white chocolate, cocoa, or cocoa butter," according to U.S. Magistrate Judge Laurel Beeler's summary of the complaint. The class accused Ghirardelli of misrepresenting the white chocolate content in its chocolate chips, wafers, white chocolate flavor, mocha mix and frappes. It alleged violations of U.S. Food and Drug Administration regulations, and state law infractions including false advertising, unfair competition and fraud. Miller, of Auburndale, Fla., sued in San Francisco, where Ghirardelli is based. The confectioner removed the case to Federal Court and sought dismissal, arguing that Miller lacks standing to sue over white chocolate products he did not buy. In April 2013, Beeler tossed all the allegations that did not pertain to white chocolate chips. The parties entered into mediation, and last year told the court they had settled the case. Beeler granted preliminary approval of the settlement in October, and after conducting a final fairness hearing, issued a final order approving the settlement on February 20. Ghirardelli will pay $5.25 million into a common fund to be distributed among the class and the plaintiffs' attorneys. Class members who make a claim will receive $1.50 for each purchase of the disputed white chocolate chips and 75 cents for each purchase of Ghirardelli products labeled "all natural." If there is money left over in the common fund, it will be donated equally to four organizations: Consumers Union, The National Consumer Law Center, and the food science departments at University of California-Davis, and Florida State University. Ghirardelli also agreed to not use the phrase "all natural" on its packages of white chocolate chips. The lead plaintiffs also will receive a $5,000 incentive award. Plaintiffs' attorneys were awarded more than $1.5 million in fees, and $87,000 in litigation costs. The case is Scott Miller, et al. v. Ghirardelli Chocolate Company, Case No. 3:12-cv-04936-LB, in the U.S. District Court for the Northern District of California, San Francisco Division. GOOGLE INC: Suit Alleging Monopoly Dismissed With Leave to Amend ---------------------------------------------------------------- Arvin Temkar at Courthouse News Service reports that a federal judge dismissed, with leave to amend, a class action claiming Google monopolizes the search engine market by making secret deals with cell phone manufacturers. Lead plaintiff Gary Feitelson claimed in May 2014 that manufacturers that want to preload Google apps such as YouTube and Google Play onto their devices must agree to make Google the default search engine on the phone. Feitelson claimed these confidential deals "quash competition for default search engine status" for competitors such as Bing and Yahoo "before it can even begin." Google sought dismissal in July 2014, claiming that the plaintiffs failed to state a claim, and that the Clayton Act applies only to "tangible commodities," which Google does not offer. U.S. District Judge Beth Freeman dismissed the case on Feb. 20, with leave to amend. Freeman said the plaintiffs need to "more plausibly allege the relationship between [the confidential agreements] and competition in the market for handheld general search." She gave them 21 days to amend "in order to adequately allege causal antitrust injury . . . in the relevant alleged markets." Freeman also dismissed plaintiffs' unfair competition claim, because neither of the named plaintiffs live in California. The amended complaint must include a plaintiff from California. The case is Gary Feitelson, et al. v. Google Inc., Case No. 5:14- cv-02007-BLF, in the U.S. District Court for the Northern District of California, San Jose Division. GOOLE INC: Judge Approves $415MM No Poach Class Action Settlement ----------------------------------------------------------------- The Associated Press reports that a federal judge has tentatively approved a $415 million settlement in a major class action lawsuit by Silicon Valley workers who accused Apple Inc., Google Inc. and other tech companies of making an illegal agreement not to hire each other's employees. Judge Lucy Koh had rejected an earlier settlement offer, saying it didn't offer enough compensation to about 64,000 workers affected by the case. She cited evidence of a corporate conspiracy to make it difficult for tech workers to negotiate better jobs at rival companies. Judge Koh said she was satisfied after the companies increased their earlier offer of $324.5 million. She invited final comments on the deal before she grants final approval at a hearing on June 9. If Judge Koh approves the latest settlement, it would avoid a potentially embarrassing trial for the companies The lawsuit also included Intel Corp. and Adobe Systems Inc. HARTFORD ACCIDENT: Removes "O'Brien" Suit to District of Montana ---------------------------------------------------------------- The class action lawsuit captioned O'Brien v. Hartford Accident and Indemnity Company, et al., Case No. DDV-2014-807, was removed from the 1st Judicial District Court, Lewis and Clark County, to the U.S. District Court for the District of Montana (Helena). The District Court Clerk assigned Case No. 6:15-cv-00014-CCL to the proceeding. The Plaintiff alleges that the Hartford Defendants have engaged in concerted action with each other in the procedures for collecting excessive premiums. The Plaintiff is represented by: Alan J. Lerner, Esq. LERNER LAW FIRM PO Box 1158 Kalispell, MT 59903-1158 Telephone: (406) 756-9100 Facsimile: (406) 756-9105 E-mail: lerner@lernerlawmt.com - and - John M. Morrison, Esq. MORRISON, SHERWOOD, WILSON & DEOLA, PLLP 401 N Last Chance Gulch PO Box 557 Helena, MT 59624 Telephone: (406) 442-3261 Facsimile: (406) 443-7294 E-mail: john@mmslawgroup.com - and - Michael A. Viscomi, Esq. VISCOMI & GERSH 121 Wisconsin Ave. Whitefish, MT 59937 Telephone: (406) 862-7800 Facsimile: (406) 862-7820 E-mail: viscomi@bigskyattorneys.com The Defendants are represented by: Peter F. Habein, Esq. CROWLEY FLECK PLLP PO Box 2529 490 N. 31st ST, Suite 500 Billings, MT 59103-2529 Telephone: (406) 252-3441 E-mail: phabein@crowleyfleck.com HAWAII: Discriminates Against Non-English Natives, Suit Says ------------------------------------------------------------ Courthouse News Service reports that Hawaii discriminates against people whose native language is not English, a class action claims in Hawaiian Federal Court. HOMELAND SECURITY: Ordered by Court to Stop Detaining Immigrants ---------------------------------------------------------------- Mothers and children held in immigration prisons since the summer of 2014 must be set free while the court decides the constitutionality of the policy that put them there, reports Amanda Loviza-Vickery at Courthouse News Service, citing a federal court ruling. The Department of Homeland Security expanded its detention policies last summer when increased violence and instability in Central America and Mexico led to a surge in immigration, particularly of children. DHS and its immigration enforcement arm stepped up detention to try to deter immigration, though many of the detainees were found to have a "credible fear" of persecution in their home country, which could qualify them for political asylum. On Feb. 20, U.S. District Judge James Boasberg ordered the DHS and its Immigration and Customs Enforcement arm to stop it. Boasberg found that detaining immigrants as a means of deterring others from crossing the border violates the Fifth Amendment, the Immigration and Nationality Act, the Administrative Procedure Act and DHS regulations. He granted an injunction in R.I. L-R et al. v Jeh Charles Johnson, et al., ordering the DHS director to release the detainees and stop the automatic detention policy while its merits are examined. The class action complaint was filed Jan. 6. Ten immigrant mothers and their minor children, the lead plaintiffs, claimed they all had been found to have a credible fear of persecution in their home country. None had a criminal history and all have family members in the United States who offered shelter and support while the families go through asylum proceedings, Boasberg wrote in his 40-page order. Each plaintiff was refused bond after establishing credible fear of persecution. Although they were eventually released, the families filed the class action to fight what they say is an illegal DHS policy. They claimed, and Boasberg agreed, that the DHS policy to detain immigrants despite their credible fears, in order to deter others from immigrating, violates the Immigration and Nationality Act, is arbitrary and capricious under the Administrative Procedure Act and ICE policies, and violates constitutional guarantees of due process. In Zadvydas v. Davis, Boasberg wrote, the court determined that "government detention violates [the Due Process Clause] unless the detention is ordered in a criminal proceeding with adequate procedural protections, or, in certain special and narrow non- punitive circumstances, where a special justification, such as harm-threatening mental illness, outweighs the individual's constitutionally protected interest in avoiding physical restraint." DHS and ICE argued that the plaintiffs are not U.S. citizens and entered the country illegally, so they have very few due process protections. But Boasberg found that courts have made it clear that once a person is in the United States, he or she has due process rights. "[A]liens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law," Boasberg wrote, citing Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953). As people apprehended within the United States and with the possibility of legitimate claims to asylum, Boasberg said, the plaintiffs have clear rights to due process. To justify the detention, the government must be "preventing flight" or "protecting the community." The government's interest in this case is particularly insubstantial, Boasberg wrote, because it argues only vague "national security interests" and complains that the influx of migrants "force[s] ICE to 'divert resources from other important security concerns' and 'relocate' their employees," but does not claim that the diversion or relocation will weaken the agency. "Defendants have not conjured up the specter of an influx's overwhelming the country's borders or wreaking havoc in southwestern cities," Boasberg wrote. "The simple fact that increased immigration takes up government resources cannot necessarily make its deterrence a matter of national security, with all the attendant deference such characterization entails." The government's power over immigration is subject to significant constitutional limitations, Boasberg said. The plaintiffs and their class suffer irreparable harm by the DHS's continued detention, and that harm is not balanced by the public interest in this case. As asylum-seekers, the plaintiffs have slightly different legal status than refugees. Refugees apply for protected status while outside of the United States; if accepted they enter the country legally as refugees. Asylum-seekers apply for the protection after having entered the United States, legally or illegally. Because the asylum process was set up to enable this protection, once an asylum-seeker has submitted an application, called an I-589, he or she is in the country legally, awaiting a decision. Immigration agencies customarily released asylum-seekers pending resolution of their case, until the Central American wars of the late 1970s and 1980s brought millions of asylum-seekers to the United States. The Reagan administration then began jailing the vast majority of them, to deter others. Though that policy eventually was found to be illegal, it took 10 years of litigation to establish. In 2014, faced with the influx of families, the Obama administration in effect reinstituted the Regan-era policies, opening new immigration prisons, often in remote places, expanding others, and handing out contracts to private agencies to act as jailers. The Obama administration made no secret of the fact that it was doing this for the deterrent effect. Boasberg enjoined the policy. The case is R. I. L-R, et al. v. Jeh Charles Johnson, et al., Case No. 15-11 (JEB), in the U.S. District Court for the District of Columbia. HONDA MOTOR: Faces Suit Over Faulty Transmissions in Acura TLX i4 ----------------------------------------------------------------- Courthouse News Service reports that Honda 2015 Acura TLX i4 vehicles have defective transmissions, a class action claims in California Federal Court. HSBC BANK: Settlement in "Mills" Class Action Approved ------------------------------------------------------ District Judge James S. Holderman of the Northern District of Illinois, Eastern Division, granted plaintiffs' motion for approval of class action settlement in the case MICHAEL WILKINS and KENNETH MILLS, on behalf of themselves and others similarly situated, Plaintiffs, v. HSBC BANK NEVADA, N.A. and HSBC CARD SERVICES, INC., Defendants, NO. 14 C 190 (N.D. Ill.) Plaintiffs filed a putative class action complaint against defendants HSBC Bank Nevada, N.A. and HSBC Card Services, Inc., alleging that between 2010 and 2014, HSBC contacted tens of thousands of other cardholders on their cell phones through the use of an automatic telephone dialing system or an artificial or prerecorded voice in violation of the Telephone Consumer Protection Act (TCPA). On July 25, 2014, the court granted Plaintiffs' unopposed request for preliminary approval of class settlement and entered an order conditionally certifying a settlement class, preliminarily approving the class action settlement, approving the notice plan, and appointing a claims and notice administrator. The parties estimate that the class includes 9,065,262 members and that HSBC made 344,351,123 phone calls in alleged violation of the TCPA. The Settlement Agreement requires HSBC to establish a non- reversionary settlement fund of $39,975,000. Plaintiffs now moved for the final approval of the class action settlement and for approval of attorneys' fees. Judge Holderman granted plaintiffs' motion for final approval of the class action settlement, expressing that the settlement is fair, reasonable, and adequate. Class Counsel's motion for approval of attorneys' fees is granted in part and denied in part. The court awards attorneys' fees and costs in the total amount of $9,495,000 (approximately 23.75% of the $39,975,000 settlement amount) and incentive awards of $5,000 to each of the two class representatives. A copy of Judge Holderman's Memorandum Opinion and Order dated February 27, 2015, is available at http://is.gd/dqmDQKfrom Leagle.com. Michael Wilkins, on behalf of himself and others similarly situated, Plaintiff, represented by Alexander Holmes Burke, Burke Law Offices, LLC, Beth Ellen Terrell, Terrell Marshall Daudt & Willie PLLC, Daniel M. Hutchinson, Lieff Cabraser Heimann & Bernstein Llp, Jonathan D. Selbin, Lieff, Cabraser, Heimann & Bernstein, Llp, Joshua Branden Swigart, Hyde & Swigart, Nicole Diane Sugnet, Lieff Cabraser Heimann & Bernstein Llp, Seyed Abbas Kazerounian, Kazerouni Law Group, Apc, Douglas J Campion, Law Offices of Douglas J Campion, APC, Jennifer Rust Murray, Terrell Marshall Daudt & Willie Pllc, Matthew R. Wilson, Meyer Wilson Co. LPA, Michael Joseph Boyle, Jr., Meyer Wilson Co., Lpa & Samuel Strauss, Terrell Marshall Daudt & Willie Pllc Kenneth Mills, Plaintiff, represented by Daniel M. Hutchinson, Lieff Cabraser Heimann & Bernstein Llp,Jonathan D. Selbin, Lieff, Cabraser, Heimann & Bernstein, Llp, Joshua Branden Swigart, Hyde & Swigart,Nicole Diane Sugnet, Lieff Cabraser Heimann & Bernstein Llp, Seyed Abbas Kazerounian, Kazerouni Law Group, Apc, Douglas J Campion, Law Offices of Douglas J Campion, APC, Jennifer Rust Murray, Terrell Marshall Daudt & Willie Pllc, Matthew R. Wilson, Meyer Wilson Co. LPA, Michael Joseph Boyle, Jr., Meyer Wilson Co., Lpa, Samuel Strauss, Terrell Marshall Daudt & Willie Pllc & Alexander Holmes Burke, Burke Law Offices, LLC HSBC Bank Nevada, N.A., Defendant, represented by Julia B Strickland, Stroock & Stroock & Lavan, LLP, Lisa Marie Simonetti, Vedder Price LLP, Angad Singh Nagra, Pilgrim Christakis LLP, Ani Azadian, Stroock & Stroock & Lavan Llp, Arjun Patibandla Rao, Stroock & Stroock & Lavan Llp & Jeffrey D. Pilgrim, Pilgrim Christakis LLP HSBC Card Services, Inc., Defendant, represented by Julia B Strickland, Stroock & Stroock & Lavan, LLP, Lisa Marie Simonetti, Vedder Price LLP, Angad Singh Nagra, Pilgrim Christakis LLP, Ani Azadian, Stroock & Stroock & Lavan Llp, Arjun Patibandla Rao, Stroock & Stroock & Lavan Llp & Jeffrey D. Pilgrim, Pilgrim Christakis LLP INTEGRATED TRANSPORTATION: Removes "Pace" Suit to C.D. California ----------------------------------------------------------------- The class action lawsuit styled Eric Pace v. Integrated Transportation Services, Inc., et al., Case No. BC570662, was removed from the Superior Court of the State of California, County of Los Angeles, to the U.S. District Court for the Central District of California (Los Angeles). The District Court Clerk assigned Case No. 2:15-cv-01416-MMM-E to the proceeding. The lawsuit alleges that the Defendants failed to pay the Plaintiff minimum wages and proper overtime compensation, in violation of among other laws, the Fair Labor Standards Act. The Plaintiff is represented by: Jonathan Ricasa, Esq. LAW OFFICES OF JONATHAN RICASA 2341 Westwood Boulevard, Suite 7 Los Angeles, CA 90064 Telephone: (424) 248-0510 Facsimile: (424) 204-0652 E-mail: jricasa@ricasalaw.com The Defendants are represented by: John L. Barber, Esq. Paul A. Mata, Esq. LEWIS BRISBOIS BISGAARD AND SMITH LLP 633 West 5th Street, Suite 4000 Los Angeles, CA 90071 Telephone: (213) 250-1800 Facsimile: (213) 250-7900 E-mail: john.barber@lewisbrisbois.com paul.mata@lewisbrisbois.com - and - Tracy Wei Costantino, Esq. LEWIS BRISBOIS BISGAARD & SMITH LLP 221 North Figueroa Street, Suite 1200 Los Angeles, CA 90012 Telephone: (213) 250-1800 Facsimile: (213) 250-7900 E-mail: tracy.costantino@lewisbrisbois.com JB HUNT: Faces "Hyatt" Class Suit Alleging Violations of TCPA ------------------------------------------------------------- David Hyatt, individually and on behalf of all others similarly situated v. J.B. Hunt Transport Services, Inc., an Arkansas corporation, and J.B. Hunt Transport, Inc., a Georgia corporation, Case No. 5:15-cv-05056-TLB (W.D. Ark., February 25, 2015) alleges violations of the Telephone Consumer Protection Act. The Plaintiff is represented by: David Westbrook Doss, Jr., Esq. DOSS LAW FIRM, PA 121 N. School Fayetteville, AR 72701 Telephone: (479) 303-5500 Facsimile: (800) 986-1136 E-mail: west@dosslaw.biz KOHLL'S PHARMACY: Sup. Court Agrees to Decide on Moot Class Claim ----------------------------------------------------------------- Kirk Jenkins of Sedgwick LLP in article for JDSupra reports that the plaintiff files a skeletal class certification motion the same day as his putative class complaint. Subsequently, the defendant tenders a check to the plaintiff representing everything the plaintiff could recover for his action. Is the plaintiff's class claim moot? That's the question that the Illinois Supreme Court agreed to decide in the closing days of its January term in Ballard RN Center, Inc. v. Kohll's Pharmacy and HomeCare, Inc., a decision of the First District, Division 4. The plaintiff's complaint alleged that he received an unsolicited fax advertisement from the defendant. The fax purportedly lacked the required "opt out" notice; the plaintiff had no prior relationship with the sender, and had not given general permission for such faxes to be sent. The complaint asserted that the fax sent to plaintiff was part of a mass broadcast of fax advertisements which had been received by at least forty other persons in Illinois. Plaintiff purported to state one claim for violation of the Telephone Consumer Protection Act, one for violation of the Illinois Consumer Fraud Act, and one for conversion. On the same day that the plaintiff filed its complaint, plaintiff filed a motion seeking certification of three classes. The motion contained no factual allegations justifying certification, and stated that plaintiff would file a memorandum of law "in due course." Defendant moved for partial summary judgment on Count I, the TCPA claim, alleging that on three separate occasions, it had made an unconditional tender of a sum covering all damages the plaintiff could possibly recover under the Act. The defendant argued that plaintiff had not filed a sufficient motion for class certification to satisfy the standard of Barber v. American Airlines, and his TCPA claim was therefore moot. The trial court denied the motion for summary judgment, holding that Barber merely requires the filing of some sort of motion for class certification; there are no particular prerequisites for the motion. The court subsequently certified a class, and defendant appealed. The Appellate Court found that commonality appeared to exist, as there were significant common issues of fact and law pertaining to all class members. The court declined to hold that evidence of consent among class members was sufficient to defeat certification, or that recipients whose faxes were routed straight to a computer, and thus had never printed the blast fax out, might present different issues. The court further found that a class action was appropriate, rejecting the defendants' view that there was something fundamentally wrong with notifying class members by unsolicited faxes that they were members of a class arising from sending of unsolicited faxes. Nevertheless, plaintiff's TCPA claim was moot, the Appellate Court held. Barber held that payment to the class representative doesn't moot a class claim when the class representative has filed a motion for certification sufficient to bring the interests of the class before the court. Accordingly, the Appellate Court held, a motion sufficient to satisfy Barber had to include sufficient factual allegations to bring the absent class members' interests before the court. The plaintiff's motion hadn't done that, the court found; the plaintiff had merely filed a "shell" motion, and if a shell motion was sufficient to block Barber mootness, then Barber means nothing. The Appellate Court reversed class certification as to the TCPA claim, but affirmed in all other respects. Sedgwick LLP expects Ballard RN to be decided in eight to ten months. KTM NORTH AMERICA: Recalls Children's Pajamas Due to Burn Risk -------------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with KTM North America, Inc., of Amherst, Ohio, announced a voluntary recall of about 2,800 Children's Pajamas. Consumers should stop using this product unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The pajamas fail to meet federal flammability standards for children's sleepwear, posing a risk of burn injuries to children. This recall involves children's onesies and two-piece KTM motocross pajamas. The Baby Racing Body onesies are 95% cotton and 5% elastane and were sold in three prints. One is orange with white sleeves and the KTM brand logo on the left chest. The second is white and orange with the KTM brand logo in bold orange printed on the center front of the chest and on the left and right hip. The third onesie is yellow with orange and black detailing and the KTM brand logo printed on the left. All onesies are long-sleeved and have snap closures from the neck to the left ankle and were sold in sizes 18 months to 2T. The two-piece, long-sleeve and pant pajama sets are 100% cotton and were sold in two prints. The Kids Racing Gear pajama is white with black, orange and grey detailing on the top and pant with a black elastic waistband and KTM printed on the left side of the chest. This set was sold in sizes 2T through 5T. The Kids Gravity Gear pajama two-piece set is white with blue, and orange detailing on the top and pant with an elastic waistband in orange and KTM printed on the left side of the chest and on the right hand wrist. This set was sold in sizes XXS through L No consumer incidents have been reported. Pictures of the Recalled Products available at: http://is.gd/DSiCmb The recalled products were manufactured in China and sold at authorized KTM motorcycle shops nationwide from August 2012 through January 2015 for between $28 and $32. Consumers should immediately take the recalled pajamas away from children, stop using them and return them to KTM North America, Inc. for a full refund. L&L ENERGY: Class Action Settlement Awaits Final Court Approval --------------------------------------------------------------- Joseph Ax, writing for Reuters, reports that the founder of coal company L&L Energy Inc was sentenced to five years in prison on Feb. 20 for lying to U.S. regulators about who was operating the company and issuing shares to Chinese investors without disclosing the existence of a regulatory probe. Dickson Lee, 66, pleaded guilty to two counts of securities fraud in September and was sentenced in federal court in Seattle, Washington. L&L Energy, which had all of its operations in China and Taiwan, also pleaded guilty in January. Prosecutors said Mr. Lee falsely reported in U.S. Securities and Exchange Commission filings that he had a chief financial officer in place, as well as adequate internal controls, in an effort to get the company listed on a national stock exchange. In addition, Mr. Lee issued 730,000 shares of stock to third-party investors whom Mr. Lee then instructed to sell the stock in order to generate revenue for the cash-strapped company, authorities said. Mr. Lee, however, failed to disclose that the SEC had already opened an investigation into the company, according to prosecutors. Mr. Lee's lawyer, Russ Aoki, said in an email that Mr. Lee had tried his best to make L&L successful and accepted his sentence with "his head up." "It was his creation, his job, and most of all his passion," Mr. Aoki said. "But Mr. Lee recognizes now that he did not have the experience to run a rapidly growing publicly traded company." Mr. Lee is facing a parallel civil case by the SEC. An investor class action filed against the company for false filings and other misconduct in New York federal court recently settled for $3.5 million and is awaiting final approval from a U.S. judge. The case is U.S. vs. Lee et al., U.S. District Court for the Western District of Washington, No. 14-24. LENOVO GROUP: Faces "Bennett" Suit Over Superfish Spyware --------------------------------------------------------- Lenovo loads computers with Superfish spyware that invades the privacy of customers by learning their Internet browsing habits, a class action claims, reports Jamie Ross, writing for Courthouse News Service. Lead plaintiff Jessica N. Bennett sued Lenovo and Superfish on Feb. 19 in Federal Court, alleging violations of the California Invasion of Privacy Act, the Federal Wiretap Act, trespass and unfair competition. A similar federal class action was filed on February 23 in San Jose. Bennett claims that the defendants "unlawfully used and damaged" her computer "to make money for themselves, while willfully disregarding plaintiff's rights to use and enjoy her personal property." Bennett bought a Lenovo Yoga 2 laptop in 2014 to use in her blogging business. She soon began to see pop-ups on Web sites, but initially thought the pop-ups were on Web sites that had been hacked. "Plaintiff was writing a blog post for a client when she noticed spam advertisements involving scantily clad women appearing on her client's website," the complaint states. "Plaintiff looked at a couple of other sites and did not see any advertisements, so she assumed the client's website was the problem." A few hours later, Bennett says she saw the same batch of scandalous ads on a different, well-known Web site and realized her laptop was infected with spyware. "Plaintiff searched web forums for help on removing the malicious spyware on her computer and learned that numerous other consumers were experiencing similar problems with the Superfish product on their recently purchased Lenovo laptop," the lawsuit states. "It was only after further research did plaintiff learn that the Lenovo laptops came pre-installed with the Superfish spyware." Bennett says the spyware slows down laptops because it "takes up bandwidth over an Internet connection, uses up memory on a computer, causes the loss of data, compromises computer security features and frustrates computer users." The life of a computer is also affected, because users are forced to run their computers longer due to slow performance time, which in turn uses more electricity. Bennett says the spyware tracked her Internet use and invaded her privacy. The U.S. Department of Homeland Security issued an alert on the third week of February claiming that Lenovo pre-installed the Superfish spyware on some of their computers beginning in September 2014. The alert detailed instructions for users who seek to remove the spyware from their computers. Lenovo issued a statement on the third week of February, claiming that in January it shut down server connections that enabled the software, and has since provided resources for users who want to remove the spyware. "We acted swiftly and decisively once these concerns began to be raised," Lenovo said. "We apologize for causing any concern to any users for any reason -- and we are always trying to learn from experience and improve what we do and how we do it." In the statement, Lenovo denied installing the software "on any ThinkPad notebooks, nor any desktops, tablets, smartphones or servers; and it is no longer being installed on any Lenovo device." Bennett seeks class certification, statutory damages, and disgorgement of profits. The Plaintiff is represented by: Alexander M. Schack, Esq. Natasha A. Naraghi, Esq. LAW OFFICES OF ALEXANDER M. SCHACK 16870 West Bernardo Drive, Suite 400 San Diego, CA 92127 Telephone: (858) 485-6535 Facsimile: (858) 485-0608 E-mail: amslawoffice@aol.com Ms. Bennett is also represented by Geoffrey J. Spreter of Spreter Legal Services APC and E. Elliot Adler of Adler Law Group APLC. The case is Jessica N. Bennett v. Lenovo (United States) Inc. et al., case number 3:15-cv-00368, in the U.S. District Court for the Southern District of California. MARSHALL-DEKALB ELECTRIC: Removes "Lake" Suit to N.D. Alabama ------------------------------------------------------------- The class action lawsuit captioned Lake v. Marshall-DeKalb Electric Cooperative, Case No. 50-CV-2015-900034.00, was removed from the Marshall County Circuit Court to the U.S. District Court for the Northern District of Alabama (Middle). The District Court Clerk assigned Case No. 4:15-cv-00339-VEH to the proceeding. The Plaintiff is represented by: Andrew Phillip Campbell, Esq. CAMPBELL GUIN WILLIAMS GUY AND GIDIERE LLC 505 20th Street North, Suite 1600 Birmingham, AL 35203 Telephone: (205) 224-0750 E-mail: andy.campbell@campbellguin.com The Defendant is represented by: Charles R. Hare, Jr., Esq. GULLAHORN & HARE PC 310 W Main Street Albertville, AL 35950 Telephone: (256) 878-1891 Facsimile: (256) 878-1965 E-mail: chare@gullahornhare.com MELVILLE DIRECT: Recalls Aquarium Motion Lamps Due to Fire Hazard ----------------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Melville Direct of Lawrenceburg, Indiana, announced a voluntary recall of about 3,600 Aquarium Motion Lamp. Consumers should stop using this product unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The lamp can overheat and spark when plugged in, posing a fire hazard. The Aquarium Lamp simulates a tropical coral reef. The plug-in lamp contains no water. Lights illuminate colorful fish and dolphins that swim back and forth with a 3D effect. The scene is framed by a beveled glass mirror frame. The lamp case and stand are made of plastic. The lamp measures 7 « inches tall x 12 ¬ inches wide x 3 inches deep. Style 45458 is printed on the original box. Eleven incidents have been reported of the item overheating or sparking when plugged in. No injuries have been reported. Pictures of the Recalled Products available at: http://is.gd/0AZhS6 The recalled products were manufactured in China and sold exclusively through the Bits and Pieces catalogue and online at www.bitsandpieces.com from September 1, 2014 through January 9, 2015 for about $30. Consumer should unplug the lamp. Melville Direct is contacting customers whose lamp shipped after September 1, 2014. The letter includes a return form and a merchandise return label. Customers should complete the return form and affix the postage-paid return label to the outside of the box. Customers may contact Melville Direct to receive the form and label. MINNESOTA: Testimony Continues in Sex Offer Program Class Action ---------------------------------------------------------------- Trisha Volpe, writing for KARE, reports that testimony continued on Feb. 19 in the case against Minnesota's sex offender treatment program. One of the 14 named plaintiffs suing the state alleging the program is unconstitutional, testified about feelings of hopelessness and years of treatment without, he believes, a chance to get out. Craig Bolte is one of several civilly committed sex offenders who committed their crimes -- in his case sexually assaulting young girls -- when they were just kids. Offenders with so-called 'juvenile-only' crimes are among those a group of court-appointed experts say should not have been civilly committed in the first place. More than 60 men who are committed to the state's sex offender treatment program in Moose Lake and St. Peter have no adult criminal convictions. Experts have suggested that most boys who commit sex offenses mature out of that behavior as adults. Mr. Bolte, who is now 27, told the court that he is not the violent kid he was, but feels hopeless about the treatment program. "All your hopes and dreams are taken away . . . you pretty much know you're going to die there . . . that's how you get out," Mr. Bolte testified. And that's a main issue in the class action lawsuit against the state, alleging the program unconstitutionally keeps people locked up indefinitely. Mr. Bolte detailed behavioral marks on this record during his time in the program. For example, he testified that he was punished for sharing food and attending a religious service without signing up first -- marks not related to sexual violence, but holding him back Mr. Bolte and his attorney believe from getting out. "The balance is tilted too much toward security and not enough toward therapy," plaintiff's attorney Dan Gustafson said. Minnesota is one of the only states to allow civil commitment of juveniles. Attorneys for the state have argued that the treatment program is constitutional and run by skilled professional. MONARCH RECOVERY: Accused of Violating Fair Debt Collection Act --------------------------------------------------------------- Esther Gluck, on behalf of herself and all others similarly situated v. Monarch Recovery Management, Inc., Case No. 2:15-cv- 01054-JHS (E.D. Pa., February 27, 2015) accuses the Defendant of violating the Fair Debt Collection Practices Act. The Plaintiff is represented by: Aryeh L. Pomerantz, Esq. POMERANTZ & POMERANTZ, PLLC 3 Whisper Lane Suffern, NY 10901 Telephone: (845) 547-2600 Facsimile: (845) 547-2601 E-mail: Aryeh@pom-law.com NATIONAL RETAIL: Sued Over Accessibility Barriers at Facilities --------------------------------------------------------------- Christopher Mielo and Joseph Snyder, individually and on behalf of all others similarly situated v. National Retail Properties, Inc. and National Retail Properties Trust, Case No. 2:15-cv-00263-CRE (W.D. Pa., February 25, 2015) alleges violations of the Americans with Disabilities Act and its implementing regulations, in connection with accessibility barriers at various properties owned, operated, controlled and leased by the Defendants. The Plaintiffs have mobility disabilities and are dependent upon wheelchairs for mobility. The Defendants are headquartered in Orlando, Florida. The Defendants own, operate, control and lease places of public accommodation. The Plaintiffs are represented by: R. Bruce Carlson, Esq. Benjamin J. Sweet, Esq. CARLSON LYNCH SWEET & KILPELA LLP PNC Park 115 Federal Street, Suite 210 Pittsburgh, PA 15212 Telephone: (412) 322-9243 Facsimile: (412) 231-0246 E-mail: bcarlson@carlsonlynch.com bsweet@carlsonlynch.com NEATO BURRITO: Employee Withdraws Wage Class Action --------------------------------------------------- Matt Miller, writing for PennLive, reports that little more than a month after she filed it, a former employee of Neato Burrito has withdrawn a federal fair wage lawsuit against the midstate restaurant chain. A one-sentence notice filed in U.S. Middle District Court by Arrianna Ruggiero, who also is identified in filings as Arrianna Applegate, states only that the case is to be marked "dismissed, withdrawn and settled." No details were available. Ms. Ruggiero's lawyer Jonathan M. Crist and Shayne Edmunds, one of Neato Burrito's owners, did not respond to inquiries about the case. Ms. Ruggiero, a former Neato Burrito store manager, claimed in the suit that managers for the company routinely were required to pick up supplies, do scheduling and perform other tasks on their own time without pay. She had sought to have the suit declared a class action so other workers could join it. The withdrawal notice was filed before Neato Burrito could file a response with the court concerning the allegations. NEW YORK, NY: 2nd Circuit Junks Occupy Marchers' Mass-Arrest Suit ----------------------------------------------------------------- Adam Klasfeld at Courthouse News Service reports that the same 2nd Circuit panel that allowed Occupy Wall Street protestors to sue New York City police for a mass arrest on the Brooklyn Bridge four years ago suddenly had a change of heart. Reversing a prior 2-to-1 holding, the judges dismissed the lawsuit without a hearing on February 23. Mara Verheyden-Hilliard, representing the protesters for the Washington-based group Partnership for Civil Justice, said in a phone interview that the judges did not give her clients a chance to argue their case before making their "extraordinary" decision and that the protestors are "evaluating all avenues of response" for an appeal. "I think it's a very telling ruling in the political context in America when the people of the country are crying out for police reform that the judiciary here is unwilling to hold the police accountable for the egregious violation of people's rights," the attorney said. The case stems from the NYPD's mass arrest of more than 700 protesters who had gathered on the Brooklyn Bridge on Oct. 1, 2011. Although police called it a clear-cut case of civil disobedience, protesters alleged in a federal class action that officers "led the march on the bridge" in order to arrest them for disorderly conduct. U.S. District Judge Jed Rakoff let the protesters take their case to discovery in 2012. Two years later, a majority of the 2nd Circuit panel affirmed that decision. In that opinion, U.S. Circuit Judge Gerard Lynch wrote that footage of the protest signaled a "Rashomon-like quality of the case." Together with his colleague Guido Calabresi, Lynch found it "impossible" to know "at this stage" whether police had probable cause to execute the mass arrest. In a scathing dissent, Judge Debra Ann Livingston warned that the ruling "threatens the ability of police departments in this circuit lawfully and reasonably to police large-scale demonstrations." Months after that decision, the refusals of grand juries across the United States to indict police officers for the killings of unarmed black men sparked large-scale protests like the one involved in this case. Shortly after those demonstrations snarled New York City traffic, Mayor Bill de Blasio's administration sought to rehear the case through in banc review, a rare maneuver that would have brought the appeal the entire 2nd Circuit. But the case never made it to the 14-judge panel and Lynch and Calabresi reversed their original ruling, finding that the officers deserved qualified immunity from the lawsuit. Where the majority previously spotted "Rashomon-like" complexity, the now-unanimous panel found stark simplicity. Speaking of the protesters, Lynch wrote for the panel: "They were also certainly aware that no official had expressly authorized the protesters to cross the bridge via the roadway. To the contrary, the officers would have known that a police official had attempted to advise the protestors through a bullhorn that they were required to disperse." Protesters contend that only demonstrators in the front of the crowd heard the warnings, an assertion the majority previously found credible. Verheyden-Hilliard called the about-face "extraordinary" and "shocking." "This is a message to the people of New York that if they participate in a police-led escorted march they can be suddenly kettled, corralled and mass-arrested," she said. City law department spokesman Nick Paolucci said that the evidence supported the police from the start. "The Second Circuit panel has properly recognized that the defendant officers are entitled to qualified immunity from damages in this case," he said. "As we have consistently maintained, the alleged facts and multiple videotapes of the events do not show that the plaintiffs were ever granted permission to march onto and block all vehicular traffic on the roadway of the Brooklyn Bridge." The Plaintiffs-Appellees are represented by: Mara Verheyden-Hilliard, Esq. Andrea Hope Costello, Esq. Carl Messineo, Esq. PARTNERSHIP FOR CIVIL JUSTICE FUND 617 Florida Avenue NW Washington, DC 20001 Telephone: (202) 232-1180 The Defendants-Appellants are represented by: Ronald E. Sternberg, Esq. Leonard Koerner, Esq. Arthur G. Larkin, Esq. Assistant Corporation Counsel NEW YORK CITY LAW DEPARTMENT 100 Church Street New York, NY 10007 Telephone: (212) 788-0303 Facsimile: (212) 788-0367 The appellate case is Karina Garcia, et al., Plaintiffs-Appellees, and Marcel Cartier, Plaintiff v. Jane and John Does 1-40, Defendants-Appellants, and Raymond W. Kelly, et al., Defendants, Case No. 12-2634-cv, in the United States Court of Appeals for the Second Circuit. NORAMPAC HOLDINGS: May 21 Settlement Final Approval Hearing Set --------------------------------------------------------------- If you purchased Containerboard Products in the United States from February 15, 2004 through November 8, 2010, your rights could be affected by a Proposed Settlement. What is This Case About? Plaintiffs allege that International Paper, Cascades Canada, ULC, Norampac Holdings U.S. Inc., Weyerhaeuser Company, Georgia Pacific LLC, Temple-Inland Inc., TIN Inc., and Smurfit-Stone Container Corporation (now known as RockTenn CP, LL) (collectively, "Defendants") conspired to fix the prices of Containerboard Products in violation of U.s. antitrust laws. A settlement was previously reached with Packaging Corporation fo America in the amount of $17,600,000. The Court granted final approval to that settlement on September 9, 2014. Defendants deny any liability and the Court has not ruled on the merits of the claims or defenses. What are Containerboard Products? "Containerboard Products" include linerboard, corrugated medium, corrugated sheets and corrugated products, including boxes and other containers. The Settlement A settlement has been reached with Defendants Cascades Canada, ULC/Norampac Holdings U.S., Inc. (collectively "Norampac"). Pursuant to the settlement, Norampac will pay the sum of $4,800,000 (four million eight hundred thousand dollars) and other consideration to the settlement class. Norampac denies liability but has settled to avoid further expense, inconvenience and distraction of the litigation. The litigation is continuing against the remaining Non-Settling Defendants: International Paper, Weyerhaeuser Company, Georgia Pacific LLC, Temple-Inland Inc., TIN Inc., Smurfit-Stone Container Corporation n/k/a RockTenn CP, LLC. Norampac has many customers in Canada, however this Settlement only applies to Containerboard Products that were directly purchased for use or delivery in the United States. Who is a Class Member? You are a class member if, at some point between February 15, 2004 and November 8, 2010, you purchased Containerboard Products directly from any of the Defendants in the litigation for use or deliver in the United States. Defendants in the litigation are: Packaging Corporation of America, International Paper, Norampac, Weyerhaeuser Company, Georgia Pacific LLC, Temple-Inland Inc., TIN Inc., or Smurfit-Stone Container Corporation in the United States. Additional information is contained in the full Notice, including information on who is or is not a Class Member. Will I Get a Payment? It is not anticipated that any distribution will be made to Class Members at this time from the proceeds of this settlement. Members of the Settlement Class may receive distributions in the future. See the full Notice for more details. What Are My Rights? If you do nothing, you will be considered part of the settlement class and you will release certain legal rights against the settling defendant, Norampac, as set forth in the settlement agreement. At a later date, you may be eligible to submit a claim to receive money. If you do not want to take part in the settlement, you have the right to opt out. To opt out of the settlement, you must do so by April 27, 2015. Class members also have the right to object to the settlement. If you object, you must do so by April 27, 2015. Additional information about your rights is contained in the full Notice. You may speak to your own attorney at your own expense for help. Final Approval Hearing A Final Approval Hearing is scheduled to be held at the United States District Court for the Northern District of Illinois in Courtroom 1941 on May 21, 2015 at 9:00 a.m. (Central Time). The date and location for this hearing may be changed on further Order of the Court. This is a Summary; Where Can I Get More Information? You can get complete Settlement information, including a copy of the full Notice, by visiting https://containerboardproductscase.com/ calling 888-764-8864, or writing to Container Products Class Action, c/o Rust Consulting, Inc., P.O. Box 1919, Faribault, MN 55021-1942. Do not contact the Court in connection with the Settlement. If you have any questions or comments you may contact Co-Lead Counsel for the Class: Michael J. Freed FREED KANNER LONDON & MILLEN, LLC 2201 Waukegan Rd., Suite 130 Bannockburn, IL 60015 Telephone: (224) 632-4500 Fax: (224) 632-4521 Daniel J. Mogin THE MOGIN LAW FIRM, P.C. 707 Broadway, Suite 1000 San Diego, CA 92101 Telephone: (619) 687-6611 Fax: (619) 687-6610 NORMARK CORPORATION: Recalls Lithium Lazer(TM) Ice Augers --------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Normark Corporation d/b/a Rapala USA of Minnetonka, Minn., announced a voluntary recall of about 3,000 StrikeMaster(R) Lithium Lazer(TM) Ice Augersin the United States and 60 in Canada. Consumers should stop using this product unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The trigger switch on the auger could fail and the unit will not turn off, posing an injury hazard. The Lithium Lazer(TM) ice auger is used by ice fishermen to cut circular holes in ice to access the water and fish below. The Lithium Lazer(TM) ice auger is a 24-pound black and red unit powered by an electric motor and a rechargeable 50-volt lithium ion battery. The auger has two handles, a power switch, a trigger switch and a drill, and is identified with the logo for StrikeMaster Ice Augers on the front of the powerhead. It also is identified as a Lithium Lazer(TM) on the top of the powerhead. No consumer incidents have been reported. Pictures of the Recalled Products available at: http://is.gd/AQUwZK The recalled products were manufactured in United States and sold at Cabela's, Gander Mountain, Joe's Sporting Goods, Kirkwood Scheels Sports, Reed's Sporting Goods and other sporting goods stores from September 2014 through January 2015 for about $600. Return to the place where purchased for a full refund, or return to Rapala for a full refund or $700 credit toward a new product on www.rapala.com NORTHLAND GROUP: Accused of Violating Fair Debt Collection Act -------------------------------------------------------------- Judy Kraus, on behalf of herself and all similarly situated consumers v. Northland Group, Inc., Case No. 1:15-cv-01005-ENV-LB (E.D.N.Y., February 26, 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 NVIDIA CORP: Faces GTX 970 False Advertising Class Action --------------------------------------------------------- James Niccolai, writing for PCWorld, reports that gaming enthusiasts have been griping for months that Nvidia's GeForce GTX 970 graphics chip doesn't operate up to snuff, and now someone has taken the company to court over it. Nvidia was hit with a class action lawsuit on Feb. 19 that claims it misled customers about the capabilities of the GTX 970, which was released in September. Nvidia markets the chip as having 4GB of performance-boosting video RAM, but some users have complained the chip falters after using 3.5GB of that allocation. The lawsuit says the remaining half gigabyte runs 80 percent slower than it's supposed to. That can cause images to stutter on a high resolution screen and some games to perform poorly, the suit says. It was filed in the U.S. District Court for Northern California and names as defendants Nvidia and Giga-Byte Technology, which sells the GTX 970 in graphics cards. Nvidia declined to comment on the lawsuit on Feb. 20 and Giga-Byte couldn't immediately be reached. Responding to the issue in January, Nvidia acknowledged that the GTX 970 uses a different memory subsystem design than its higher- end GTX 980, but it said that difference has a negligible impact on performance. It has also said that, due to an error, the original specifications it published for the GTX 970 were incorrect. Some gamers are unhappy and want their money back. A discussion thread about the topic at the GeForce.com website runs for 360 pages. There's also a petition at Change.org with more than 8,000 signatures asking regulators in Europe and the U.S. to force Nvidia to provide refunds. The Feb. 19 lawsuit seeks a jury trial and whatever damages apply under California law. It was filed on behalf of all consumers in the U.S. who bought graphics or video cards with the GTX 970. It will be up to the judge to decide whether the lawsuit can proceed as a class action. PACE UNIVERSITY: Moves "Williams" Suit to New York District Court ----------------------------------------------------------------- The lawsuit captioned Williams v. Pace University, Case No. 150707/2015, was removed from the Supreme Court of the State of New York, New York County, to the U.S. District Court for the Southern District of New York (Foley Square). The District Court Clerk assigned Case No. 1:15-cv-01424-PKC to the proceeding. Plaintiff Nicolette Williams alleges that Pace discriminated against her because she was given a failing grade on her comprehensive exam and denied her degree from the Dyson College of Arts and Sciences of Pace University on the basis of her race. The Plaintiff is represented by: Stewart Lee Karlin, Esq. THE LAW OFFICES OF STEWART L. KARLIN, P.C. 9 Murray Street, 4W New York, NY 10007 Telephone: (212) 792-9670 E-mail: slk@stewartkarlin.com The Defendant is represented by: Edward Cerasia II, Esq. Alison L. Tomasco, Esq. CERASIA & DEL REY-CONE LLP 150 Broadway, Suite 1517 New York, NY 10038 Telephone: (646) 525-4235 E-mail: ed@cdemploymentlaw.com alison@cdemploymentlaw.com PASADENA, CA: Officials Hid $6.4MM Embezzlement Scheme, Suit Says ----------------------------------------------------------------- Pasadena city officials kept a $6.4 million embezzlement scheme at City Hall under wraps for months, allowing three council members to run uncontested for their seats, a voter claims in a federal class action, reports Matt Reynolds at Courthouse News Service. James Lomako sued Pasadena and its council members on Feb. 20, asking a judge to stop the March primary election. Pasadenans were outraged when news of public works official Danny Ray Wooten's arrest broke late last year. Angry residents questioned how city officials had allowed a $6.4 million embezzlement scheme to go unnoticed for years. The city fired Wooten in June 2014 after uncovering his alleged 11-year scheme to embezzle $6,432,810.98 in public money. Lomako claims the city delayed going public for another six months, allowing council members Margaret McAustin, Gene Masuda and Steve Madison to run uncontested for their seats. Lomako says the city did not reveal details of the scheme until Dec. 30, 2014, about two weeks after the nomination period for city elections had closed. City officials said they did not want to compromise the Los Angeles County District Attorney's investigation. But Lomako claims that did not "provide a rational basis" for withholding details to Pasadenans before Wooten's Dec. 30, 2014 arrest. Lomako claims that as a prospective District Two Pasadena city councilman he would have "sought and received the nomination" had the city gone public before nominations closed. But city spokesman William Boyers told Courthouse News that Lomako is not on the March ballot because he missed the filing deadline by two months. Boyer forwarded a copy of a Feb. 17, 2015 letter addressed to Lomako. The letter says that Lomako asked for a blank nomination form on Feb. 13 this year, and returned it on Feb. 17 -- but the filing deadline was Dec. 12, 2014. The city clerk's letter also states that the clerk told Lomako on Feb. 13 that he could file a write-in candidate statement, but Lomako "declined to do so." As it stands, incumbent District Two Councilwoman Margaret McAustin is running for the seat unopposed. "The practical impact of the disclosure delay is that the public was kept unaware of vital public information during the nominations period," Lomako claims. "By the time it was disclosed to the public, the nominations period was closed and three incumbent council members -- defendants Margaret McAustin, Gene Masuda, and Steve Madison -- were running for their offices unopposed." Lomako, whom McAustin defeated when he ran in the 2007 election, claims the District Attorney's Office had asked that the city keep its involvement confidential to ensure the "integrity of the investigation and prosecution." City Manager Michael Beck and City Attorney Michele Bagneris in the summer of 2014 issued a gag order on the D.A.'s investigation to city department heads, Mayor Bill Bogaard and city councilmen and councilwomen, Lomako says. It was not until after the city commissioned firm KPMG to forensically audit Wooten that the city went public, according to the complaint. Wooten, formerly an analyst at Pasadena's public works department, is accused of falsifying invoices from 2004 until 2014 as he managed the task of moving all of the city's utility lines underground. He allegedly diverted $2 million in public money to the owner of an electric company, Tyrone Collins, and $40,000 in city money to Melody Jenkins, a temporary city employee. Collins and Jenkins were also charged in a 60-count criminal complaint with embezzlement, conflict of interest and grand theft. Prosecutors claim Wooten also diverted money to two churches he belonged to, the Southern California Evangelist Jurisdiction Center and the New Covenant Christian Fellowship Center in Pomona. Boyers told Courthouse News that the city had not been served with the lawsuit. "We can't really comment on something we haven't seen," Boyers said. "Since there was apparently a lawsuit filed, there probably won't be much more comment from the city beyond this letter [above]," Boyer said. Lomako wants the court to block the March 10 primary and the April 17 elections, calling them deprivation of rights under color of authority of law, interference with rights, and illegal expenditure or waste of taxpayer funds. The Plaintiff is represented by: Philip Koebel, Esq. KOEBEL LAW OFFICES 1015 N Lake Ave., Suite 210 PO Box 94799 Pasadena, CA 91109 Telephone: (626) 629-8199 Facsimile: (626) 410-1149 E-mail: LawOfPEK@gmail.com PARAMOUNT CITRUS: Faces Wage-and-Hour Class Action in California ---------------------------------------------------------------- Aaron Vehling, writing for Law360, reports that seasonal field workers on Feb. 19 hit Paramount Citrus Cooperative Inc. with a proposed class action in a California federal court, accusing the grower of failing to pay its migrant workers for non-harvesting tasks such as traveling between fields, which fall outside of their typical fruit-picking duties. The workers say that the nation's largest citrus grower failed to pay them minimum wage for work hours spent doing "non-piecework" -- waiting on standby before beginning to do piecework, time spent waiting before being sent home for a lack of work, traveling between fields during the work and for rest periods -- in violation of California Labor Code and the Migrant and Seasonal Agricultural Worker Protection Act. "To date, defendant has not paid plaintiffs any of the minimum wages still owed to them or any of the penalty wages owed to them under [California Labor Code]," the suit says. The six-count complaint also includes claims of unfair competition and violations of a failure to pay all wages upon termination and a failure to provide wage statements. The suit asks for damages, civil penalties for the wage statement claims and restitution, among other things. It also seeks certification of five classes each with more than 50 workers categorized by the claims in the complaint. The suit, brought by main plaintiffs Marcelina Peralta and Rigoberto Monjaraz, stems from seasonal field work undertaken each year at various locations affiliated with Paramount Citrus in Kern County, California, outside of Bakersfield, according to the complaint. The workers were required to report to work at a time of day specified by Paramount Citrus, and often had to wait an hour or more before starting work, the complaint says, noting that sometimes the workers would wait that duration before getting sent home for a lack of work. They were also required either to walk or drive from one field to another to conduct their piecework, but during that time they were not paid their piecework rates, the suit says. One of the co-op's constituent farms paid the workers only $2 an hour to pick fruit and $4 an hour to clean equipment during one point in the 2013-2014 season, according to the suit. The workers weren't compensated at all for the two 15-minute rest periods they would take during their shifts, the complaint says. After that season was over, and the workers laid off, the co-op failed to compensate the field workers for all hours worked, the suit says. Among Paramount Citrus' products are Halos-brand mandarin oranges and Blue Goose Minneola Tangelos, according to its website. The plaintiffs are represented by Gregory Karasik of Karasik Law Firm and Santos Gomez of the Law Offices of Santos Gomez. The case is Peralta et al. v. Paramount Citrus Cooperative Inc., case number 1:15-cv-00263, in the U.S. District Court for the Eastern District of California. PATRIOT PAYMENT: Faces "Mey" Suit Over Unsolicited Phone Sales -------------------------------------------------------------- Diana Mey, individually and on behalf of a class of all persons and entities similarly situated v. Patriot Payment Group, LLC, Case No. 5:15-cv-00027-FPS (N.D. W. Va., February 27, 2015) is brought over alleged unsolicited telephone sales. The Plaintiff is represented by: Anthony Paronich, Esq. Edward A. Broderick, Esq. BRODERICK LAW, P.C. 125 Summer St., Suite 1030 Boston, MA 02110 Telephone: (617) 738-7080 E-mail: anthony@broderick-law.com ted@broderick-law.com - and - John W. Barrett, Esq. Jonathan R. Marshall, Esq. BAILEY & GLASSER, LLP 209 Capitol St. Charleston, WV 25301 Telephone: (304) 345-6555 Facsimile: (304) 342-1110 E-mail: jbarrett@baileyglasser.com jmarshall@baileyglasser.com - and - Matthew P. McCue, Esq. LAW OFFICE OF MATTHEW P. MCCUE 1 South Avenue, Suite 3 Natick, MA 01760 Telephone: (508) 655-1415 Facsimile: (508) 319-3077 E-mail: mmccue@massattorneys.net PICTORIAL OFFSET: New Jersey Suit Seeks to Collect Unpaid Wages --------------------------------------------------------------- Dennis Domerstad, on behalf of himself and all others similarly situated v. Pictorial Offset Corporation, Case No. 2:15-cv-01457- KM-SCM (D.N.J., February 26, 2015) is brought to collect alleged unpaid wages. The Plaintiff is represented by: Paul A. Carbon, Esq. MARGOLIS EDELSTEIN 400 Connell Drive, Suite 5400 Berkeley Heights, NJ 07922 Telephone: (908) 790-7771 Facsimile: (908) 790-1486 E-mail: pcarbon@margolisedelstein.com PLY GEM HOLDINGS: Sued in Wisconsin for Trademark Infringement -------------------------------------------------------------- Aaron Kraemer, On behalf of himself and all others similarly situated v. Ply Gem Holdings, Inc. d/b/a Ply Gem Windows, Ply Gem Prime Holdings, Inc., Ply Gem Industries, Inc., MWM Holding, Inc., and MW Manufacturers, Inc., Case No. 3:15-cv-00127 (W.D. Wis., February 27, 2015) alleges claims for trademark infringement (Lanham Act). The Plaintiff is represented by: Michael J. Modl, Esq. AXLEY BRYNELSON, LLP Two East Mifflin Street, Suite 200 P.O. Box 1767 Madison, WI 53701 Telephone: (608) 257-5661 Facsimile: (608) 257-5444 E-mail: mmodl@axley.com RALPH LAUREN: Removes "Polanco" Suit to Florida District Court -------------------------------------------------------------- The class action lawsuit entitled Polanco v. Ralph Lauren Retail, Inc., et al., Case No. 14-29139CA01, was removed from the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, to the U.S. District Court for the Southern District of Florida (Miami). The District Court Clerk assigned Case No. 1:15-cv-20803-DPG to the proceeding. The action is brought for alleged unpaid wages under the Fair Labor Standards Act and for damages pursuant to the Civil Rights Act of 1866 to redress injuries resulting from the alleged unlawful, race and national origin-based discriminatory treatment of the Plaintiff. The Plaintiff is represented by: Peter Michael Hoogerwoerd, Esq. REMER & GEORGES-PIERRE, PLLC 44 West Flager Street, Suite 2200 Miami, FL 33130 Telephone: (305) 416-5000 Facsimile: (305) 416-5005 E-mail: pmh@rgpattorneys.com The Defendants are represented by: Susan N. Eisenberg AKERMAN LLP One Southeast Third Avenue, 25th Floor Miami, FL 33131 Telephone: (305) 374-5095 Facsimile: (305) 374-5600 E-mail: susan.eisenberg@akerman.com - and - Melissa S. Zinkil AKERMAN LLP 777 South Flagler Drive Suite 1110, West Tower West Palm Beach, FL 33401 Telephone: (561) 653-5000 Facsimile: (561) 659-6313 E-mail: melissa.zinkil@akerman.com REGIS CORP: Removes "Watson" Suit to California District Court -------------------------------------------------------------- The class action lawsuit styled Sheri Watson v. Regis Corporation, et al., was removed to the U.S. District Court for the Central District of California (Los Angeles). The District Court Clerk assigned Case No. 2:15-cv-01484-SVW-JC to the proceeding. The lawsuit arose from labor-related disputes. The Plaintiff is represented by: Kenneth H. Yoon, Esq. Stephanie Emi Yasuda, Esq. KENNETH H YOON LAW OFFICES One Wilshire Boulevard, Suite 2200 Los Angeles, CA 90017-3383 Telephone: (213) 612-0988 Facsimile: (213) 947-1211 E-mail: kyoon@yoon-law.com syasuda@yoonlaw.com The Defendants are represented by: Catherine M. Dacre, Esq. Emily Eschenbach Barker, Esq. SEYFARTH SHAW LLP 560 Mission Street, Suite 3100 San Francisco, CA 94105 Telephone: (415) 397-2823 Facsimile: (415) 397-8549 E-mail: cdacre@seyfarth.com ebarker@seyfarth.com RESURGENT CAPITAL: Sued for Violating Fair Debt Collection Act -------------------------------------------------------------- Thomas Hansen, Beverly Hansen and Amy Lynn Mullins, on behalf of themselves and all others similarly situated v. Resurgent Capital Services, L.P., A Delaware limited partnership; PYOD, LLC, a foreign limited liability company; and LVNV Funding, LLC, a foreign limited liability company, Case No. 8:15-cv-00426-JDW-TBM (M.D. Fla., February 27, 2015) alleges violations of the Fair Debt Collection Practices Act. The Plaintiffs are represented by: Gregory Harrison Lercher, Esq. Ian Richard Leavengood, Esq. J. Andrew Meyer, Esq. LEAVENGOOD, DAUVAL, BOYLE & MEYER PA 3900 First St N, Suite 100 St. Petersburg, FL 33703-6109 Telephone: (727) 327-3328 Facsimile: (727) 327-3305 E-mail: glercher@leavenlaw.com ileavengood@leavenlaw.com ameyer@leavenlaw.com RJM ACQUISITIONS: Violates Fair Debt Collection Act, Suit Claims ---------------------------------------------------------------- Abraham Stern, on behalf of herself and all others similarly situated v. RJM Acquisitions, LLC and John Does 1-25, Case No. 3:15-cv-01450-PGS-DEA (D.N.J., February 26, 2015) alleges violations of the Fair Debt Collection Practices Act. The Plaintiff is represented by: Yitzchak Zelman, Esq. LAW OFFICE OF ALAN J. SASSON PC 1669 East 12th Street Brooklyn, NY 11229 Telephone: (718) 339-0856 E-mail: yzelman@sassonlaw.com ROCHE: Homeowners Mull Class Action Over Environmental Issues ------------------------------------------------------------- Tony Gicas, writing for Clifton Journal, reports that homeowners neighboring Roche's Route 3 campus claim environmental issues have damaged their property values and, as a result, intend to file a class action lawsuit against the pharmaceutical giant as well as the City of Clifton, officials said. Because the confidential item was discussed during a closed session at the Feb. 17 Clifton City Council meeting, few details are currently available regarding the potential litigation. However, sources told Clifton Journal the lawsuit is imminent and will include a significant number of Clifton taxpayers, as many as 60 homeowners, whose homes are adjacent to the eastern side of the Roche property. The City has retained the Teaneck law firm of DeCotiis, Fitzpatrick & Cole, LLP to serve in an advisory capacity regarding such potential lawsuits. An official source said the municipal council will explore the possibility of hiring the firm to represent the City if the legal matter progresses from potential litigation to an actual lawsuit. The pharmaceutical giant has maintained plans to vacate the headquarters in 2015 for a property in New York City's East Side medical corridor. In preparing for the sale of the Route 3 site, the company tapped TRC Environmental Corp. to carry out an environmental investigation of the property. An inspection of the sewer last spring by engineering firm Paulus, Sokolowski & Sartor PC showed a substantial amount of underground chemical contaminants near the campus' Route 3 entrance which TRC said likely originated in areas north of the drug company's facility. The investigation revealed several cracks in the sewer line running beneath the Roche site which are believed to be responsible for contaminants making their way into the groundwater. The damaged sanitary sewer pipe beneath the Route 3 campus necessitated a multi-million dollar repair which the City plans to fund during its current budget season. Sources said the contamination discovered during Roche's environmental investigation occurred near the center of the site. On Feb. 18, Roche representatives said the company is aware of the class action lawsuit filed by two nearby residents regarding its environmental investigation. Although Darien Wilson, Roche's director of public affairs, said the drug maker has a long standing policy of not commenting about pending litigation, she did provide a company statement. "Since operations ceased on the Roche site at the end of 2013, the company has undertaken a comprehensive environmental investigation under the oversight of the New Jersey Department of Environmental Protection (NJDEP), U.S. Environmental Protection Agency (USEPA) and Licensed Site Remediation Professionals (LSRPs), licensed by the state of New Jersey," according to the statement. "Roche conducted investigations both on its site and in the surrounding area and remedial investigation reports were submitted to the NJDEP prior to May 2014 and accepted as complete. It should be noted, that Roche is in compliance with all state and federal regulatory guidelines and has already begun approved remediation on-site." Potential litigation can include an individual threatening to sue, filing a notice of claim against the City which preserves the right to sue or, in this case, a document filed against another party that Clifton's legal department projects will ultimately connect to the municipality. Potential only becomes actual litigation once the City is named in court papers. Officials said they do not believe Nutley will be named in the lawsuit because the area in question is Roche's property and the sanitary pipeline is owned by Clifton. In January, Roche held a press conference at the site to announce a deal between the Hackensack University Medical Network and Seton Hall University which would bring New Jersey's first private medical school to the vacated campus. City officials say they are optimistic the medical school will serve as the magnet which draws additional corporate entities to the 118-acre Roche property and ultimately reestablishes much of the tax ratable that has been lost in the drug maker's absence. According to Roche representatives, before the drug company began tearing down vacant buildings, it paid about $14 million in property taxes each year, with about $9 million going to Nutley and $4.5 million to Clifton. The Roche campus is fairly evenly split, with approximately 66 acres located within Clifton and 52 acres within Nutley. Including its U.S. sales force, at its peak, the site employed as many as 10,000 employees, officials said. ROYAL APPLIANCE: Recalls Hand Vac Turbo Tool Accessories -------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Royal Appliance Manufacturing Co., of Glenwillow, Ohio, announced a voluntary recall of about 22,000 Dirt Devil(R) Scorpion(R) Turbo Quick Flip Hand Vac Turbo Tool Accessory in the United States and about 2,500 in Canada. Consumers should stop using this product unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The interior fan of the Turbo Tool accessory can break and eject from the tool housing, posing a laceration hazard to the user or bystanders. The recalled Dirt Devil Turbo Tool attachment was sold as a vacuum accessory with the corded Dirt Devil Scorpion Turbo Quick Flip Hand Vac. The accessory tool is a plastic, clear yellowish green attachment with a black turbine fan and black brush roll with white bristles. "Royal," model number "08225" and a five-digit manufacture date code ending in 12A U, 13A U, 13B U or 14B U are printed on a label on the bottom of the hand vacuum. The Turbo Tool measures about 5-3/4 inches long by 4-1/2 inches wide. Consumers can continue to use the Dirt Devil hand vacuum without the turbo tool accessory attachment. Royal Appliance received six reports of the Turbo Tool accessory breaking. No injuries have been reported. Pictures of the Recalled Products available at: http://is.gd/UjwYin The recalled products were manufactured in China and sold at Home improvement stores nationwide and online at Amazon.com, Walmart.com and other online retailers from January 2012 through February 2015 for about $30 for the hand vac including the accessory tool. Consumers should immediately stop using the Turbo Tool accessory and contact the firm for instructions on receiving a free replacement tool accessory. RUSSELL SIGLER: Removes "Sanchez" Class Suit to C.D. California --------------------------------------------------------------- The class action lawsuit titled Steven Sanchez v. Russell Sigler, Inc., Case No. BC569545, was removed from the Superior Court of the State of California for the County of Los Angeles to the U.S. District Court for the Central District of California (Los Angeles)). The District Court Clerk assigned Case No. 2:15-cv- 01350 to the proceeding. The lawsuit alleges employment discrimination. The Defendant is represented by: William Hays Weissman, Esq. LITTLER MENDELSON PC 1255 Treat Boulevard, Suite 600 Walnut Creek, CA 94597 Telephone: (925) 927-4545 Facsimile: (925) 891-2551 E-mail: wweissman@littler.com SCHIFF NUTRITION: Misrepresents MegaRed Supplement, Suit Claims --------------------------------------------------------------- Seth Sultan, Individually and On Behalf of All Others Similarly Situated v. Schiff Nutrition International, Inc., a Delaware Corporation, Case No. 8:15-cv-00315-DOC-JCG (C.D. Cal., Feb. 25, 2015) arises from the Defendant's alleged false and fraudulent advertising of MegaRed Omega-3 Krill Oil, a dietary supplement. MegaRed's key ingredients are the omega-3 fatty acids eicosapentaenoic acid ("EPA") and docosahexaenoic acid ("DHA"), which some research has suggested may help reduce the risk of coronary heart disease. Schiff Nutrition International, Inc., is a Delaware corporation with its principal place of business in Utah. Schiff is a wholly owned subsidiary of the international consumer products conglomerate, Reckitt Benckiser Group. The Defendant manufactures, markets and distributes MegaRed, which is sold in retail stores across the United States. The Plaintiff is represented by: Lionel Z. Glancy, Esq. Mark S. Greenstone, Esq. GLANCY BINKOW & GOLDBERG LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 Facsimile: (310) 201-9160 E-mail: lglancy@glancylaw.com mgreenstone@glancylaw.com - and - Stuart E. Scott, Esq. Daniel Frech, Esq. SPANGENBERG SHIBLEY & LIBER LLP 1001 Lakeside Avenue East, Suite 1700 Cleveland, OH 44114 Telephone: (216) 696-3232 Facsimile: (216) 696-3924 E-mail: sscott@spanglaw.com dfrech@spanglaw.com SCM I INVESTMENTS: Faces Class Suit Alleging Job Discrimination --------------------------------------------------------------- Michaelene Rodrigues, an individual; Suzanne Forte, an individual; and Christiane Levesque, an individual, and other similarly situated individuals v. SCM I Investments, LLC d/b/a The Wine Loft of Naples, a Florida limited liability company, Case No. 2:15-cv- 00128-JES-CM (M.D. Fla., February 27, 2015) asserts claims over alleged job discrimination. The Plaintiffs are represented by: Sundeep K. Mullick, Esq. MCGLINCHEY STAFFORD, PLLC 1 E. Broward Blvd., Suite 1400 Ft. Lauderdale, FL 33301 Telephone: (954) 356-2516 Facsimile: (954) 252-3808 E-mail: smullick@mcglinchey.com SIOUX CITY, IA: Supreme Court Upholds Traffic Camera Ordinance -------------------------------------------------------------- Rick Smith, writing for KCRG.com, reports that the Iowa Supreme Court on Feb. 20 said local traffic camera ordinances in Iowa that hold the owner of a vehicle responsible for violations even if someone else is driving are not unconstitutional or in violation of law. The ruling addresses a fundamental design of the traffic enforcement camera industry as well as a complaint voiced by some in every community with the cameras in place, including Cedar Rapids. Mayor Ron Corbett on Feb. 20 said the court ruling was good news for Cedar Rapids because it appears to "negate" a different lawsuit brought against Cedar Rapids and the city's camera vendor that contends that the city's camera setup violates the constitutional rights of motorists. However, Jim Larew, the Iowa City attorney who has brought the class-action lawsuit, on Feb. 20 said the Iowa Supreme Court ruling involves some issues related to his case, but not other "substantially different" ones. "We will continue to advocate our clients' positions on those issues in state and federal courts," Mr. Larew said. Meanwhile, Cedar Rapids' more immediate concern is a pending decision on traffic enforcement cameras from the Iowa Department of Transportation, which is deciding which cameras can remain in place across Iowa and which can't. A couple of places where Cedar Rapids has some of its cameras are not in accord with new DOT rules on camera placement. "We worked with the DOT to place those cameras back in 2010, and so we feel we're on solid ground," Mayor Corbett said. In the Feb. 20 Iowa Supreme Court ruling, authored by Justice Brent Appel, the court affirmed an earlier ruling in Woodbury County where a magistrate and District Court judge found motorist Michael Jacobsma responsible for speeding in 2012 despite Mr. Jacobsma's claim that the city of Sioux City couldn't prove he was driving. In Justice Appel's ruling, the Iowa justice cited federal court rulings in similar cases in Chicago and Washington, D.C., in which courts found that the cities classified vehicles caught by enforcement cameras as civil cases, not criminal cases, and as a result had a different burden of proof. Mr. Jacobsma, a Sioux Center, Iowa, attorney, had argued that the burden of proof incorrectly had shifted to him to prove he was not driving, and instead should have remained with the city of Sioux City to prove that he actually was behind the wheel when a traffic camera caught his vehicle speeding in 2012. Justice Appel, though, cited the ruling in a Washington, D.C., case in which the court found that the motorist was not denied due process because there was a "rational connection" to presume that the owner of the vehicle caught on cameras was the violator. "(I) t is entirely rational to presume that a vehicle is in the care, custody, or control of its registered owner," the judge in the Washington, D.C., case said and Justice Appel wrote in his ruling. In the Chicago case, Justice Appel's ruling said the federal court similarly found the Chicago traffic cameras passed the "rational basis test." The Chicago ruling goes on to suggest that the cameras make law-enforcement sense. Justice Appel quoted the Chicago ruling, which in part stated, "(A) system of photographic evidence reduces the costs of law enforcement and increases the proportion of all traffic offenses that are detected (and that) these benefits can be achieved only if the owner is held responsible." The court in the Chicago case, said Justice Appel, "observed that vicarious liability is rational because it encourages owners to 'take more care when lending their cars, and often they can pass the expense on to the real wrongdoer.'" Justice Appel then states of the Chicago court ruling that "the take away point . . . is that even if an ordinance imposes liability on registered owners without an opportunity to show that someone else was driving the vehicle at the time of the infraction, such an ordinance would satisfy substantive due process under the United States Constitution." In an earlier case, Justice Appel said the Iowa Supreme Court itself found that the owner of a vehicle ticketed for a parking violation in Iowa City is responsible to pay the ticket, and that the city doesn't need to ticket the person, if other than the owner, who illegally parked it. In that case, Justice Appel said the Iowa Supreme found, in part, that "The inference created by (the ordinance) does not deny due process to the defendant by placing the burden upon him, but rather merely shifts to him the burden of going forward with evidence that the vehicle was not operated by one who the City has the right to presume was operating the automobile with its owner's consent." SMARTHEAT INC: Class Certification Bid in "Sicav" Suit Denied ------------------------------------------------------------- District Judge Paul A. Engelmayer of the Southern District of New York denied plaintiffs' motion for class certification in the case STREAM SICAV and TIEN CHLING, individually and on behalf of all others similarly situated, Plaintiffs, v. JAMES JUN WANG, SMARTHEAT, INC., and JOHN DOES 1-4, Defendants, NO. 13 CIV 6682 (PAE) (S.D.N.Y.) The plaintiffs claim that SmartHeat, Inc. violated federal securities laws by secretly amending a written lock-up agreement under which certain company insiders were barred from selling shares of SmartHeat stock until the start of 2012, and which SmartHeat had publicly touted as a sign of its executives' confidence in the company. Plaintiffs seek to certify a class of all persons who purchased or acquired shares of SmartHeat, Inc. stock between February 24, 2010 and May 30, 2012. On March l7, 2014, the Court issued an order denying, without prejudice, plaintiffs' motion for class certification. Plaintiffs filed a renewed motion for class certification. Judge Engelmayer denies plaintiffs' motion for class certification, on the grounds that plaintiffs' submission is insufficiently rigorous, and fails to satisfy multiple requirements for class certification set by Federal Rule of Civil Procedure 23, including those of typicality, adequacy, and predominance. Judge Engelmayer said the plaintiffs may move again for class certification. If the plaintiffs file a new certification motion, the defendants' opposition papers will be due March 16, 2015. A copy of Judge Englemayer's opinion and order dated January 21, 2015, is available at http://is.gd/r25zSZfrom Leagle.com. Stream Sicav, Lead Plaintiff, represented by Phillip C. Kim -- pkim@rosenlegal.com -- Jonathan Richard Horne -- jhorne@rosenlegal.com -- Kevin Koon-Pon Chan -- kchan@rosenlegal.com -- Laurence Matthew Rosen -- lrosen@rosenlegal.com -- at The Rosen Law Firm P.A. Stream Sicav, Plaintiff, represented by Jonathan Richard Horne-- jhorne@rosenlegal.com -- Laurence Matthew Rosen -- lrosen@rosenlegal.com -- Yu Shi -- yshi@rosenlegal.com -- at The Rosen Law Firm. P.A. Dharanendra Rai and Tien Chung, Plaintiffs, represented by Phillip C. Kim -- pkim@rosenlegal.com -- Jonathan Richard Horne -- jhorne@rosenlegal.com -- Kevin Koon-Pon Chan -- kchan@rosenlegal.com -- Laurence Matthew Rosen -- lrosen@rosenlegal.com -- Yu Shi -- yshi@rosenlegal.com -- at The Rosen Law Firm. P.A. Ben Sheng, Movant, represented by Thomas James McKenna -- tjmckenna@gme-law.com -- at Gainey McKenna & Egleston Smartheat, Inc., Defendant, represented by Alan Ross Pearlson -- rpearlson@wolffsamson.com - Marisa Ann Rauchway -- mrauchway@wolffsamson.com -- at Wolff & Samson, P.C.; James L. Kopecky -- jkopecky@ksblegal.com -- at Kopecky, Schumacher & Bleakley, P.C. SONIC AUTOMOTIVE: Removes "Esqueda" Class Suit to S.D. California ----------------------------------------------------------------- The class action lawsuit styled Esqueda v. Sonic Automotive, Inc., et al., Case No. 30-2014-00750850-CU-OE-CXC, was removed from the Superior Court of the State of California for the County of Orange, Central Justice Center, to the U.S. District Court for the Southern District of California (San Diego). The District Court Clerk assigned Case No. 3:15-cv-00444-JM-NLS to the proceeding. The lawsuit arose from labor-related issues. The Defendants are represented by: Ian Gregory Robertson, Esq. FINE, BOGGS & PERKINS LLP 111 West Ocean Blvd., 2425 Long Beach, CA 90802 Telephone: (714) 768-5135 Facsimile: (562) 490-8561 E-mail: irobertson@employerlawyers.com SUCCESSFULMATCH.COM: Violates Confidentiality Promise, Suit Says ---------------------------------------------------------------- Courthouse News Service reports that Successfulmatch.com dba PositiveSingles.com, a dating site for people with STDs, shares customers' information with other sites in violation of its promise of confidentiality, Jane Doe claims in a class action in California Superior Court. TAKATA CORP: "Herring" Suit Consolidated in Airbag Products MDL --------------------------------------------------------------- The class action lawsuit styled Herring v. Takata Corporation, et al., Case No. 4:15-cv-00056, was transferred from the U.S. District Court for the Northern District of Oklahoma to the U.S. District Court for the Southern District of Florida (Miami). The Florida District Court Clerk assigned Case No. 1:15-cv-20785-FAM to the proceeding. The lawsuit is included in the multidistrict litigation known as In re: Takata Airbag Products Liability Litigation, MDL No. 1:15- md-02599-FAM. The actions in the litigation share factual questions arising from allegations that certain Takata-manufactured airbags are defective in that they can violently explode and eject metal debris, resulting in injury or even death. The Plaintiffs allege that Takata and the various motor vehicle manufacturer defendants became aware of the defect years ago, but concealed their knowledge from safety regulators and the public. TAKATA CORP: First Hearing Begins in Airbag Class Action -------------------------------------------------------- CBS Miami reports that the first hearing was set for dozens of lawsuits filed around the country seeking damages for allegedly defective auto airbags made by Japan's Takata Corp. The lawsuits are being consolidated for pretrial rulings before U.S. District Judge Federico Moreno. Judge Moreno set the Feb. 20 hearing to set a schedule to discuss other issues. More than 70 potential class-action lawsuits claim the airbags are defective because they can explode and cause injury or death with flying debris. At least six deaths have been linked to Takata air bags, sparking federal investigations. The lawsuits mostly claim unspecified economic damages stemming from the lost value of the vehicles containing the airbags. None of the current cases seek damages for personal injury, but some could be added later. TARGET CORP: Faces Suit for Misrepresenting Herbal Supplements -------------------------------------------------------------- Linda Boss, individually and on behalf of all others similarly situated v. Target Corporation and Target Brands, Inc., Case No. 4:15-cv-00855-DMR (N.D. Cal., February 25, 2015) alleges that as a direct and proximate result of Target's false advertising, the Plaintiff and Class members have suffered injury in fact and lost money or property, in that they purchased certain herbal supplements when they otherwise would not have. As the second-largest discount retailer in the United States, Target has sold supplements under its store brand "up & up" for years, Ms. Boss says. In the case of at least three of these products, however -- Ginkgo biloba, St. John's wort, and valerian root -- Target has not been selling the supplement listed on the packages' label. Instead, she alleges, the packages contain fillers that are not believed to have the same properties or provide the same benefits as the marketed herbal supplements. Target Corporation is a Minnesota corporation that maintains its principal place of business in Minneapolis, Minnesota. Target conducts substantial business in the Northern District of California. There are 1,793 Target stores in the United States and 262 in California alone, representing Target's largest United States presence. Target Brands, Inc. is a Minnesota corporation also based in Minneapolis. Target Brands is owned by Target Corporation and it owns the trademark on many of Target's private brands, including its "up & up" line of herbal supplements. The Plaintiff is represented by: Daniel C. Girard, Esq. Eric H. Gibbs, Esq. Adam E. Polk, Esq. GIRARD GIBBS LLP 601 California Street, 14th Floor San Francisco, CA 94104 Telephone: (415) 981-4800 Facsimile: (415) 981-4846 E-mail: dcg@girardgibbs.com ehg@girardgibbs.com aep@girardgibbs.com TIME WARNER: Ruling in Dodgers-Lakers Bundling Suit Affirmed ------------------------------------------------------------ William Dotinga, writing for Courthouse News Service, reports that a fight over Time Warner Cable's price increases in Los Angeles -- allegedly to offset its $11 billion broadcast deals with the Lakers and Dodgers -- is a federal issue that can't be hashed out in state court, a California appeals court held February 23. The ruling comes nearly two years after Sherry Fischer and three other named plaintiffs filed an unfair business practices complaint against the cable giant, the Dodgers and the Lakers in L.A. Superior Court. They claimed Time Warner's $3 billion TV deal with the Lakers and an $8 billion deal with the Dodgers would end up costing subscribers upwards of $100 extra per year on their cable bills. Time Warner bundled the games into its "enhanced" basic cable service, the plaintiffs said -- charging subscribers for the programming whether they watched the games or not. They claimed surveys show that more than 60 percent of the population in the L.A. area does not follow either team and would opt out of the channels if they could. Both Time Warner and the teams filed objections to the lawsuit, with the Dodgers and Lakers pointing out they had not committed any unfair acts and could not be held liable. Time Warner argued that federal law allows cable companies to bundle channels, providing a "safe harbor" against the class's unfair competition claims. A trial court subsequently tossed the action, citing the express preemption of state law by federal statutes that govern the cable industry. On appeal, the subscribers argued that Time Warner's addition of three channels to its enhanced basic cable lineup -- along with the rate increases -- resulted in a "negative-option billing practice" that is prohibited by the Federal Communications Commission, the agency that oversees the cable industry. Accordingly, the Cable Act does not expressly prohibit enforcement of state consumer-protection laws in this case, the class claimed. But a panel for the Second Appellate District ruled on Feb. 23 that a 1995 decision by the 7th Circuit Court of Appeals -- in a Wisconsin consumer-law case also involving Time Warner and negative-option billing -- upheld the FCC's choice to preempt state challenges where rate structures are concerned. "With Time Warner Cable v. Doyle as a guide, we conclude that the Cable Act is a proper exercise of the FCC's regulatory authority and preempts appellants' unfair competition law claims," Judge Laurence Rubin wrote for the panel. "First, as in Doyle, appellants seek restitution of the rate hike fees, thereby retroactively affecting rates Time Warner has already charged its customers. "Second, the trial court took judicial notice of the channel lineups as they stood before and after the new sports channels were added. Only three of nearly 100 in the non-broadcast basic cable tier were affected," Rubin continued. "An FCC order interpreting the act states that tier changes of that nature are minor, not 'fundamental,' even if they are accompanied by a rate adjustment, and are therefore within the preemptive scope of the act. By contrast, deleting all existing channels from a particular tier and replacing them with an entirely new set of channels would constitute a fundamental change to a tier of channels. In that hypothetical setting, negative option billing would be implicated and state laws that addressed such changes would not be preempted," Rubin wrote. Forcing cable companies to notify customers every time they make minor changes to programming packages -- even when the changes are accompanied by small rate increases -- would be "seriously burdensome to cable operators," a fact that led the FCC to add the "fundamental change" rule that preempts this particular state- court action, the panel said. "In short, the FCC, pursuant to its statutory authority, has made it clear that state consumer protection laws are preempted in regard to negative option billing practices that result in rate hikes due to the addition of a small number of channels because those rate hikes do not represent a 'fundamental change' in service," Rubin wrote. "The essence of appellants' complaint is to the contrary -- nonfundamental changes are not preempted. Even though they seek leave to amend to allege that the three channel additions fundamentally altered the basic cable tier, such an allegation would not eliminate that defect, as the cited authorities indicate that such additions are not fundamental changes. We therefore hold that the action is necessarily preempted as to all respondents." The panel added in a footnote that they were "keenly aware" that the issue affects millions of Southern California residents who feel that "although they now receive 10 times 57 channels or more," there's still nothing to they want to watch on TV. "We simply hold that federal preemption principles bar application of state consumer protection laws in this case. Thus, consumers must present their complaints to Congress or the FCC," the panel concluded. The Plaintiffs and Appellants are represented by: Maxwell M. Blecher, Esq. Courtney A. Palko, Esq. BLECHER COLLINS PEPPERMAN & JOYE PC 515 S Figueroa St., Suite 1750 Los Angeles, CA 90071 Telephone: (213) 622-4222 Facsimile: (213) 622-1656 E-mail: mblecher@blechercollins.com cpalko@blechercollins.com Defendant and Respondent Time Warner Cable, Inc., is represented by: Daniel G. Swanson, Esq. Jay P. Srinivasan, Esq. Brandon J. Stoker, Esq. GIBSON, DUNN & CRUTCHER 333 South Grand Avenue Los Angeles, CA 90071-3197 Telephone: (213) 229-7430 Facsimile: (213) 229-6430 E-mail: dswanson@gibsondunn.com jsrinivasan@gibsondunn.com bstoker@gibsondunn.com Defendant and Respondent The Los Angeles Lakers, Inc. is represented by: Bryan A. Merryman, Esq. Rachel J. Feldman, Esq. Lauren M. Mutch, Esq. WHITE & CASE LLP 633 West Fifth Street, Suite 1900 Los Angeles, CA 90071-2007 Telephone: (213) 620-7700 Facsimile: (213) 452-2329 E-mail: bmerryman@whitecase.com rfeldman@whitecase.com lmutch@whitecase.com Defendants and Respondents Los Angeles Dodgers Holding Company and America Media Productions are represented by: Dan K. Webb, Esq. David B. Enzminger, Esq. Derek J. Sarafa, Esq. William C. O'Neil, Esq. WINSTON & STRAWN LLP 35 W. Wacker Drive Chicago, IL 60601-9703 Telephone: (312) 558-5600 Facsimile: (312) 558-5700 E-mail: dwebb@winston.com denzminger@winston.com dsarafa@winston.com woneil@winston.com The appellate case is Sherry Fischer, et al., Plaintiffs and Appellants v. Time Warner Cable Inc., et al., Defendants and Respondents, Case No. B254863, in the Court of Appeal of the State of California, Second Appellate District, Division Eight. The trial court case is Sherry Fischer, et al. v. Time Warner Cable Inc., et al., Case No. BC512259, in the Superior Court of the State of California for the County of Los Angeles. TOTAL WEALTH: Judge Appoints Receiver; Class Action Pending ----------------------------------------------------------- Tom Harvey, writing for The Salt Lake Tribune, reports that a federal judge has appointed a receiver to take over a company owned by a Utah man after regulators said he was trying to pay a fine for fraudulent activities with monies from clients of his hedge funds. Jacob Keith Cooper, of the southern Utah town of Washington and owner of Total Wealth Management Inc., also is alleged to have charge inflated fees to client accounts without telling them in order to pay legal and other expenses. Mr. Cooper could not be reached for comment on Feb. 20, and the case in federal court in San Diego, where Total Wealth is located, does not list any attorneys who represent him or the company. A phone once listed for the family home in Washington was disconnected. Total Wealth's and its pooled-investment funds that carry the name Altus had about $108 million under management in 773 client accounts at the end of last year, the agency said in its complaint. The Securities and Exchange Commission sued Total Wealth Management and Cooper earlier in February, alleging he was committing fraud on clients by trying to use $150,000 of their funds to pay a fine levied against him in a SEC administrative action last year. That action in April of last year named Cooper, company President Nathan McNamee of Hurricane and a California resident, David Shoemaker of San Diego, and accused them of violating federal laws though their use of unregistered investment funds, by not engaging independent auditors and failing to conduct due diligence before investing clients' monies. It also alleged the three did not disclose conflicts of interest created by fee-sharing agreements with funds in which most of their clients' money was placed. Under a proposed settlement, Mr. Cooper agreed to put $150,000 in escrow while the commission considered whether to approve the agreement. But he then admitted to the SEC that the $150,000 had come from a loan from one of the Wealth Management funds, according to the complaint. That breached his financial duty to his clients and showed there were inadequate financial controls to protect clients, the agency said. In asking a federal judge to appoint a receiver to take over the company, the agency also alleged that Total Wealth was charging inflated "administrative fees" of $3,500 to $7,500 per account without telling investors beforehand. In an email to those investors after the fees were taken from accounts, Total Wealth said that, among other things, the fees were funding the cost of defending it from a class action lawsuit pending in California state court, according to the SEC complaint. "Cooper has an inherent conflict of interest since he is using investors' money to defend himself in a lawsuit brought against him by his investors," the SEC complaint says. A related company, Metropolitan Coffee and Concession Co. LLC, which operated four Peet's Coffee & Tea outlets in Bay Area Rapid Transit stations in the San Francisco area, filed for bankruptcy reorganization in October. It listed assets of $423,000 and liabilities of $10.7 million. Mr. Cooper solicited clients for Total Wealth on a weekly radio show called "Minding Your Own Business," where he discussed investments, including in his own companies. He told listeners that Total Wealth's investments were safe even in an economic downturn and that returns had been up to 18 percent, according to the SEC. TOYS "R" US: Post-Appeal Settlement Approved in Consumer Suit ------------------------------------------------------------- District Judge Anita B. Brody of the Eastern District of Pennsylvania ruled on plaintiffs' request in the case CAROL M. McDONOUGH, et al., Plaintiffs, v. TOYS "R" US, INC., d/b/a Babies "R" Us, et al., Defendants. ARIEL ELLIOTT, et al., No. 2:09-cv- 06151-AB Plaintiffs, v. TOYS "R" US, INC., d/b/a Babies "R" Us, et al., Defendants, NO. 2:06-CV-0242-AB (E.D. Pa.) On January 19, 2006, a group of consumers brought a putative consumer class action for violations of Sections 1 and 2 of the Sherman Anti-Trust Act, 15 U.S.C. Sections 1, 2, against Babies "R" Us, Inc. (BRU), a national retail chain in the baby products market, and against a number of manufacturers of baby products. The consumers alleged that BRU conspired with defendant manufacturers to restrict competition by requiring all retailers to sell their goods at or above a minimum resale price. Plaintiff Consumers alleged that as a result they paid inflated prices for baby products manufactured by Defendant Manufacturers. On July 15, 2009, Judge Brody granted class certification under Federal Rule of Civil Procedure 23(b)(3) and created subclasses based on the different products the consumers purchased and the timeframe of those purchases. Shortly before trial was set to begin, the parties announced that they had reached a settlement. The Initial Settlement created a $35.5 million common fund. The parties estimated that after deduction of administrative expenses and attorneys' fees, the net settlement fund available to the class would total $21.5 million. Judge Brody approved the initial settlement. At the close of the Initial Settlement claims process in August 2011, class members' claims, trebled, totaled approximately $3 million. Three class members objected to the Initial Settlement. Kevin Young, Allison Lederer, and Clark Hampe appealed the final approval of the Initial Settlement to the Third Circuit. Young et al. raised three issues relating to cy pres on appeal: (1) that the settlement should distribute all of the funds to class members, rather than to cy pres recipients, to ensure full compensation for their losses; (2) that the court should have discounted the value of the cy pres distribution in determining class counsel's fee award; and (3) that the class notice was deficient because it did not identify the cy pres recipients. Young et al.'s main concern was the significant and unanticipated size of the cy pres award. On February 19, 2013, the Third Circuit vacated approval of the Initial Settlement. The Third Circuit's primary reasoning was that at the time of final approval of the Initial Settlement, the amount of compensation that would be distributed directly to the class was unknown. The Third Circuit concluded that there was no error in the notice provided to the class about the cy pres recipient selection process, the cause was remanded to Judge Brody. Following the Third Circuit's ruling, the parties restructured the settlement to address the Third Circuit's concerns and maximize the direct benefit to Settlement Class Members. On May 14, 2014, Judge Brody issued an order preliminarily approving the Post Appeal Settlement Agreement. Class counsel have filed petitions for final approval of the Post- Appeal Settlement Agreement, for attorneys' fees, expenses, and special incentive awards for class representatives and for final approval of the plan of allocation. Judge Brody granted plaintiffs' motion for final approval of class action settlement and certification of settlement subclasses. The Court also granted in part and denied in part plaintiffs' motion for award of attorneys' fees, expenses, and incentive awards for named plaintiffs. A copy of Judge Brody's memorandum dated January 21, 2015, is available at http://is.gd/vRlPYcfrom Leagle.com. TRANS-CONTINENTAL CREDIT: Sued in New Jersey for Violating FDCPA ---------------------------------------------------------------- Wayne Morello, on behalf of herself and all other similarly situated v. Trans-Continental Credit & Collection Corp. and John Does 1-25, Case No. 3:15-cv-01458-PGS-LHG (D.N.J., February 26, 2015) is brought over alleged violations of the Fair Debt Collection Practices Act. The Plaintiff is represented by: Joseph K. Jones, Esq. LAW OFFICES OF JOSEPH K. JONES, LLC 375 Passaic Avenue, Suite 100 Fairfield, NJ 07004 Telephone: (973) 227-5900 E-mail: jkj@legaljones.com TREMCO INC: Ohio Appellate Court Flips Judgment in "Wholf" Suit --------------------------------------------------------------- Judge Eileen T. Gallagher of the Court of Appeals of Ohio, Eighth District, Cuyahoga County, reversed the trial court's judgment in the case of WILLIAM WHOLF, PLAINTIFF-APPELLANT, v. TREMCO INCORPORATED, ET AL., DEFENDANTS-APPELEES, NO. 100771 (Ohio App.) Tremco manufactures and sells roofing installation and weatherproofing services for buildings such as schools, hospitals, and manufacturing facilities. As part of its warranty program, Tremco provides on-site roofing inspections and preventative maintenance services, which are supported through an Online Information System (OLI). William Wholf and his wife Melissa Wholf worked for Tremco Incorporated, the former being Tremco's primary online information system's trainer under the title OLI Sales/Customer Support Manager and the latter being a part time data entry encoder. Plaintiff reports to Edward Nowak, the Inspection and Maintenance Service Manager. Sometime after Nowak joined Tremco, some female employees complained that Nowak made sexually suggestive comments to them and stared inappropriately at their breasts. One of the alleged victims was plaintiff's wife. Wholf reported Nowak's conduct to Tremco's vice president, who reported the allegations to James Tierney, Tremco's former General Counsel and Vice President of Human Resources. Frustrated by what he believed was an inadequate investigation, Wholf reported the harassment to the NETWORK, an independent and autonomous service devoted to collecting and reporting employee complaints regarding practices and behaviors that may be unethical or in violation of Company policies. Wholf alleged that after he complained about Nowak's harassing behavior, he felt a backlash from Nowak. Wholf informed Todd Sworney, Tremco's Drafting Supervisor that he believed Nowak was retaliating against him for reporting his harassing behavior even though Nowak gave him a positive performance evaluation in late May 2010. Wholf submitted a two-week notice to Sworney in which he stated that the harassment and retaliation against him resulting from his complaints about Nowak forced him to leave the company. Following his resignation, Wholf filed a complaint against Tremco in which he asserted two claims. In Count 1, a retaliation claim brought pursuant to R.C. 4112.02(I), Wholf alleged that (1) he engaged in a protected activity when he reported sexual harassment to company managers, (2) the Company et al. were aware of the protected activity, (3) the Company et al. took adverse actions against him, and (4) the protected activity was the cause of Tremco's adverse actions against him. Count 2 alleged intentional infliction of emotional distress. The trial court granted defendants motion for summary judgment and found that Wholf failed to establish that the alleged retaliation was the "but-for" cause of defendants' adverse employment action. It also found there was no evidence to support his intentional infliction of emotional distress claim because defendants' alleged actions were not extreme and outrageous. Wholf does not appeal the judgment on his intentional infliction of emotional distress claim. He appeals the judgment in defendants' favor on his retaliation claim and raises two assignments of error. In the first assignment of error, Wholf argues the trial court erroneously applied the "but-for" causation standard articulated in Univ. of Texas S.W. Med. Ctr. v. Nassar, 570 U.S. ___, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013), to his retaliation claim. He contends the court should have applied the less stringent "motiving factor" [sic] causation standard that he claims courts applied prior to Nassar. In the second assignment of error, Wholf argues the trial court erred in summarily dismissing his retaliation claim because he produced sufficient evidence to establish a genuine issue of material fact that appellees retaliated against him because of his participation in protected activities in violation of R.C. 4112.02(I). Judge Gallagher finds merit to the appeal, the judgment of the trial court is reversed and the case is remanded to the trial court for further proceedings. A copy of Judge Gallagher's opinion dated January 22, 2015, is available at http://is.gd/GGFd9tfrom Leagle.com. Matthew D. Greenwell -- matt@cvlongolaw.com -- Charles V. Longo -- cvlongo@cvlongolaw.com -- at Charles V. Longo Co., L.P.A., Attorneys for Appellant Sue M. Douglas -- Amy Ryder Wentz -- awentz@littler.com -- Robert M. Wolff -- rwolff@littler.com -- at Littler Mendelson, P.C., Attorneys for Appellees The Court of Appeals of Ohio, Eighth District for Cuyahoga County panel consists of Judges Eileen T. Gallagher, Frank D. Celebrezze, Jr., and Melody J. Stewart. TRUMP UNIVERSITY: Wants Judge to Decertify Fraud Class Action ------------------------------------------------------------- Natalie Rodriguez and Michael Lipkin, writing for Law360, report that Trump University LLC has asked a California federal judge to decertify a class action accusing the school of fraudulently advertising its real estate seminars, arguing that the plaintiffs have failed to offer up a workable damages method and have not been diligent with class noticing, according to a motion filed on Feb. 19. Blasting the plaintiffs' full refund proposal as already having been rejected in similar cases where some value was gleamed from the contested product and alleging that plaintiffs' counsel has wrongfully delayed sending out notice of the class to the point that summary judgment may be decided before class members have to opt in, Trump University asked the court to decertify the class of former Trump University students from California, Florida and New York. "Having now completed discovery, it is abundantly clear that there are no facts to support any claim against Mr. Trump. Regardless, and despite having nearly five years to do so, the Plaintiffs have been unable to quantify any measure of damages. As a result, we believe that the classes should be decertified and the cases dismissed," Jill A. Martin, assistant general counsel for The Trump Organization, told Law360. The plaintiffs have asked for full refunds, but Trump University contends this method would be improper because certain class representatives have admitted to obtaining at least some value from Trump University. "Like In re Pom Wonderful, because TU programs had at least some value, Plaintiffs have failed to provide a workable damages model and therefore the California Classes must be decertified," Trump University argued in a memorandum to the motion. Trump University noted that California's definition of restitution is the "difference between what the plaintiff paid and the value of what the plaintiff received," and pointed out similar damages definitions under Florida and New York law. Further, Trump University contends that counsel for the class has wrongfully not yet sent out class notices, which given the standard 60-day response time could put class members in a position to not have to make an opt-out decision until after the school's motion for summary judgment is decided, Trump University argued. "A class member could elect to opt-out only after a motion is granted, thus avoiding being bound by any adverse decision on the motions. This would be a clear violation of the one-way intervention rule and the mandate of Rule 23 requiring that class membership be determined prior to any rulings on dispositive motions," Trump University argued. U.S. District Judge Gonzalo P. Curiel granted class certification last February for all persons in California, New York and Florida who hadn't received a full refund after paying for Trump University's live events. Lead plaintiff Tarla Makaeff, who lodged the suit in April 2010, claims she paid more than $35,000 for Trump's seminars and classes, but that the courses and events were not as advertised. A number of legal battles have ensued since the complaint was first filed. After Ms. Makaeff sued Donald Trump in 2010 for deceptive business practices, Trump counterclaimed for defamation, but the court struck the claim after an appeal to the Ninth Circuit. And in December, U.S. Magistrate Judge William V. Gallo denied Tarla Makaeff and other plaintiffs' bid to depose Trump University President Michael Sexton and Trump himself a second time, more than two years after initial depositions. The plaintiffs claimed Trump didn't turn over key documents until after the depositions and that they wanted to depose Sexton this time in his personal capacity, not as a representative of Trump University. But Judge Gallo held that the timing of depositions was a strategic decision and it was the plaintiffs' choice to hold them so early. In a separate action, Judge Curiel also granted class certification in a related racketeering suit last October, after finding that lead plaintiff and California businessman Art Cohen had provided sufficient evidence that the marketing of the allegedly fraudulent live events -- including mailers with prominent pictures and quotes from Trump, as well as a coat of arms and educational language -- caused thousands of student- victims to pay to attend. Trump is represented by Nancy L. Stagg -- nstagg@foley.com -- and Benjamin J. Morris -- bmorris@foley.com -- of Foley & Lardner LLP, and in-house counsel Jill A. Martin of Trump National Golf Club Los Angeles. The plaintiffs are represented by Jason A. Forge -- jforge@rgrdlaw.com -- and Rachel L. Jensen of Robbins Geller Rudman & Dowd LLP, and Amber L. Eck -- ambere@zhlaw.com -- Helen I. Zeldes, Alreen Haeggquist and Aaron M. Olsen -- aarono@zhlaw.com -- of Zeldes Haeggquist & Eck LLP. The case is Tarla Makaeff, et al., v. Trump University LLC, et al, case number 3:10-cv-00940, filed in the U.S. District Court for the Southern District of California. TULE RIVER: E.D. Cal. Judge Revives "Medina" Suit ------------------------------------------------- District Judge Lawrence J. O'Neill of the Eastern District of California reversed and remanded the case LUIS MEDINA, Appellant, v. WILLIAM P. VANDER POEL, Appellee, NO. 1:14-CV-01302 LJO, (E.D. Cal.) Luis Medina filed a lawsuit in federal court against William Vander Poel and Tule River Ranch, a company in which Vander Poel was a principal. The federal case was dismissed and Medina filed a similar case in state court in November of 2010, wherein he also asserted a California Private Attorney General Act (PAGA) claim, which authorizes the collection of civil penalties for alleged violations of the California labor code. Vander Poel filed for bankruptcy protection, and seeking resolution as to the PAGA suit, filed two adversary proceedings against Medina in bankruptcy court. Vander Poel sought a determination of dischargeability of any fines that might be levied in the PAGA case. The other proceeding, initially filed March 10, 2014, seeks sanctions against Medina for prosecuting the state law case in violation of the bankruptcy court's automatic stay order. Vander Poel moved for summary judgment on the basis that a) Medina failed to properly file an adversary proceeding in Vander Poel's bankruptcy case, b) all claims against Vander Poel had been discharged, and c) that Medina's claims could not be considered "nondischargeable" under 11 U.S.C. Section 523(a)(7). The bankruptcy court granted the motion in its entirety, holding that all claims asserted by Medina were discharged pursuant to 11 U.S.C. Section 727. Medina made a timely appeal, raising these issues: (1) Whether the bankruptcy court erred in concluding that civil penalties under the California Private Attorneys General Act (PAGA", Cal. Labor Code. Section 2699, et seq., do not fall within the exception to discharge set forth in 11 U.S.C. Section 523(a)(7)and; (2) Whether the Bankruptcy Court erred in granting summary judgment in favor of Vander Poel, on grounds that said claims were discharged under 11 U.S.C. Section 727. Judge O'Neill reversed the bankruptcy court's order holding that the bankruptcy court erred in concluding that the civil penalties under the California Private Attorneys General Act ("PAGA"), Cal. Labor Code. Sec. 2699, et seq., do not fall within the exception to discharge set forth in 11 U.S.C. Section 523(a)(7). Judge O'Neill held that the bankruptcy court also erred in granting summary judgment in favor of Vander Poel, on grounds that the claims were discharged under 11 U.S.C. Section 727. Case is remanded for further proceedings. A copy of Judge O'Neill's order dated January 20, 2015, is available at http://is.gd/SVeVGffrom Leagle.com Luis Medina, Appellant, represented by Joseph Donald Sutton -- jsutton@themmlawfirm.com -- Marco A. Palau -- mpalau@themmlawfirm.com -- Stanley S. Mallison -- stanm@themmlawfirm.com -- Eric Sebastian Trabucco -- etrabucco@themmlawfirm.com -- at Mallison & Martinez William P. Vander Poel, Appellee, represented by Riley C. Walter -- RileyWalter@W2LG.com -- at Walter & Wilhelm Law Group; Steven M. Crass -- scrass@bakermanock.com -- Andrea Marie Upton -- at Baker, Manock & Jensen, P.C. TYLER STAFFING: Accused of Violating Fair Credit Reporting Act -------------------------------------------------------------- Craig Smalls, individually and on behalf of a class of similarly situated individuals v. Tyler Staffing Services, Inc. d/b/a Chase Professionals, a Georgia corporation, Case No. 1:15-cv-00557-WSD- WEJ (N.D. Ga., February 25, 2015) alleges violations of the Fair Debt Collection Practices Act. The Plaintiff is represented by: Jennifer Auer Jordan, Esq. THE JORDAN FIRM, LLC 1447 Peachtree Street, N.E., Suite 880 Atlanta, GA 30309 Telephone: (404) 873-4720 Facsimile: (404) 872-3745 E-mail: jordan@ssjwlaw.com - and - Steven L. Woodrow, Esq. EDELSON PC 999 W. 18th Street, Suite 3000 Denver, CO 80202 Telephone: (303) 357-3877 E-mail: swoodrow@edelson.com UBER TECH: Lawsuits May Alter Sharing Economy --------------------------------------------- Kate Rogers, writing for NBC News, reports that hot start-ups Uber and Lyft have contributed substantially to the growth of the sharing economy that connects freelancers with available work projects. Now some drivers of those companies argue they've been misclassified as independent contractors and want full employee status. Uber and Lyft face two separate lawsuits in San Francisco federal court. The suits, filed in 2013, are seeking class-action status and now making their way through the courts. A ruling on full employee status for Uber and Lyft drivers could have wide-ranging implications for the collaborative consumption movement. The new economic model has been able to maximize start- ups' growth through a largely freelance workforce with few traditional, full-time benefits and lower costs for new businesses. Beyond full employee status, the plaintiffs are seeking reimbursement for expenses including gasoline and car maintenance costs, which they would normally receive if they had employee standing in California. Drivers for both companies currently are classified as freelancers, and drivers cover such costs themselves. Plaintiff attorney Shannon Liss-Riordan, partner at Boston-based Lichten & Liss-Riordan, said both companies are profiting "massively" from what she describes as a worker misclassification. "Companies like to convince their workers that it's good for them to be independent contractors because they have all of this flexibility," said Ms. Liss-Riordan, who is representing both Uber and Lyft drivers. "That's a lie because employees can also have flexibility, work part-time hours and pick their schedules. You can get all of those things and still get employee benefits." But didn't the Uber and Lyft drivers know they were signing up for freelance jobs -- without benefits -- from the get go? A matter of fairness Ms. Liss-Riordan argues the complaints basically come down to fairness for drivers. "There are basic labor protections in place to ensure companies do not take advantage of their workers," she said. "Why should Uber, valued at $40 billion, not have to pay for things that we as a society have deemed important?" Pinpointing the lawsuits' potential total cost, for Uber and Lyft, is difficult. The plaintiffs have not disclosed what they're seeking in damages. Neither start-up has revealed how many drivers it has on its payrolls. Lyft told CNBC by email it employs "thousands" of drivers in California, and declined to comment further on the lawsuits. Uber also declined to comment on the suits. Labor experts say it's challenging to put a dollar amount on how much full employee status would cost Uber and Lyft. The Society for Human Resource Management says the average premium for employee-only health-care coverage in 2014 was $882 per employee per month. Using that metric, health-care costs alone could run into the hundreds of thousands per month for the companies if they offered full-time benefits. Other potential costs could include fuel and related transportation costs for car- related start-ups. Dan, an Uber driver in Los Angeles -- who agreed to appear on camera on the condition his full name not be used -- said he's spending an average of $80 a week on gasoline, $30 a month on car washes and $300 a year on oil changes. His total, potential reimbursement costs could be near $5,000 a year, he estimated. "I think the sharing economy can and will survive; they just have to play by the same rules as everyone else." Aside from covering those costs himself, the driver claims Uber will not tell drivers where they're heading beforehand, and some drivers needing work feel pressured to accept faraway trips without full disclosure. Uber did not respond to emails requesting comment, including details on average driver costs, and whether drivers must accept jobs before full details and mileage are disclosed. On its website, Uber explained its strategy this way: "By seamlessly connecting riders to drivers through our apps, we make cities more accessible, opening up more possibilities for riders and more business for drivers." Some like it flexible Of course not all drivers want full employee status. Brooklyn, New York-based Lyft driver Robert Henderson recently made the job switch to Lyft from Uber. Mr. Henderson worked in nonprofit foster care for 25 years and says the freedom and flexibility of being an independent contractor lured him to the sharing economy. "[Becoming an employee] would feel like this is an obligation, and I don't want that obligation feeling. I like the fact that whenever I am ready to work, I could work," Mr. Henderson said. "The flexibility is amazing; it's something you just cannot buy." Mr. Henderson has health insurance through his wife, so pushing for benefits isn't a priority. However, reimbursement for costs including gasoline and car maintenance would be nice, he said. "But at the same time, you can make enough to cover your gas and expenses and still come home with a very decent paycheck," Henderson said. It is unclear when the judges will give their next rulings on the cases, which are still in early stages, attorney Liss-Riordan said. But given the high valuations for Uber and Lyft -- in the billions -- paying for benefits shouldn't be an issue, she said. "I think the sharing economy can and will survive; they just have to play by the same rules as everyone else," she said. UNITED STATES: Ruling in "Burwell" Medicare Suit Upheld in Part --------------------------------------------------------------- Judge Jose A. Cabranes of the United States Court of Appeals, Second Circuit, affirmed in part and vacated in part the judgment of the district court in the appealed case entitled LEE BARROWS, ET AL., individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. SYLVIA MATHEWS BURWELL, Secretary of Health and Human Services, Defendant-Appellee, NO. 13-4179-CV (2nd Cir.) Medicare is the federal government's health-insurance program for the elderly. It contains four distinct programs, which includes Medicare Part A and Medicare Part B. The first, Medicare Part A, is titled Hospital Insurance Benefits for Aged and Disabled. It provides basic protection against the costs of hospital, related post-hospital, home health services, and hospice care for, among others, eligible people over 65 years of age. Most relevant to this case, Part A creates an entitlement to coverage for inpatient hospital services and post-hospital extended care services. The second program, Medicare Part B, is titled Supplementary Medical Insurance Benefits for Aged and Disabled. It is a voluntary program offering supplemental insurance coverage for those persons already enrolled in the Medicare Part A program. Part B covers visits to doctors and certain other outpatient treatment. Because patients who are placed into observation status are treated as outpatients by the Centers for Medicare & Medicaid Services (CMS), their care is covered by Medicare Part B. The amount that a Medicare beneficiary pays out of pocket varies significantly based on whether the services provided were covered under Part A or Part B. On November 3, 2011, plaintiffs filed a putative class action complaint, which asserts that, the Secretary of Health and Human Services used of observation status deprived them of the Part A coverage to which they were entitled. Each named plaintiff alleges that they were charged hundreds of dollars in co-payments under Medicare Part B, as well as thousands of dollars more for their post-hospitalization skilled nursing facility (SNF) care, despite the fact that they received hospital services substantially similar to those provided to "inpatients" for three or more consecutive days. The complaint pleads nine causes of action against the Secretary, including violations of the Medicare Act, the Administrative Procedure Act, the Freedom of Information Act, and the Due Process Clause. The principal relief sought is a permanent injunction that would: (1) prohibit the Secretary from allowing Medicare beneficiaries to be placed on observation status and thus to deprive them of Medicare Part A coverage to which they are entitled; (2) direct the Secretary to provide written notification, or to ensure that written notification is provided, to any Medicare beneficiary who is placed on observation status of the nature of the action, of the consequences for Medicare coverage, and of the right to administrative and judicial review of that action; and (3) direct the Secretary to establish a procedure for administrative review of a decision to place a Medicare beneficiary on observation status, including the right to expedited review. The Secretary moved to dismiss the complaint in its entirety, and on September 23, 2013, the District Court granted the motion. On October 10, 2013, the District Court entered final judgment for the Secretary. Plaintiffs timely appealed the District Court's dismissal of claims six and seven of the complaint. Claim six asserts that the Secretary's failure to provide written notification to Medicare beneficiaries, or to require that they receive written notification, of their placement on observation status, of the consequences of that placement for their Medicare coverage, and of their right to challenge that placement violates the Medicare statute, 42 U.S.C. Sections 1395ff and 1395w-22(g), and the Due Process Clause of the Fifth Amendment. Claim seven asserts that the Secretary's policy of not providing Medicare beneficiaries with the right to administrative review, including expedited review, of their placement on observation status violates the Medicare statute, 42 U.S.C. Sections 1395ff and 1395w-22(g), and the Due Process Clause of the Fifth Amendment. The two claims appealed by plaintiffs allege that the Secretary's failure to provide an expedited system of notice and administrative review regarding the placement of Medicare beneficiaries into observation status violated: (1) the Medicare Act and (2) the Due Process Clause. Judge Cabranes affirmed the district court's October 10, 2013 judgment in part, in so far as it dismissed the plaintiffs' Medicare Act claims, and vacated in part, in so far as it dismissed the plaintiffs' due process clause claims, and remanded the cause to the District Court for further proceedings. A copy of Judge Cabranes' opinion dated January 22, 2015, is available at http://is.gd/PtITT2from Leagle.com. ALICE BERS (Gill Deford, Center for Medicare Advocacy, Inc., Willimantic, CT; Anna Rich, National Senior Citizens Law Center, Oakland, CA, on the brief), Center for Medicare Advocacy, Inc., Willimantic, CT, for Barrows, et al., Plaintiffs-Appellants JEFFREY A. CLAIR (Stuart F. Delery, Assistant Attorney General, Adam C. Jed, Michael S. Raab, United States Department of Justice, Civil Division, Appellate Staff, Washington, DC; Deirdre M. Daly, United States Attorney for the District of Connecticut, on the brief), United States Department of Justice, Civil Division, Appellate Staff, Washington, DC, for Burwell, Defendant-Appellee Mark G. Arnold, Husch Blackwell LLP, Clayton, MO, for Amicus Curiae American Health Care Association Edith M. Kalls, Whatley Kallas, LLP, New York, NY, for Amici Curiae American Medical Association, et al Catherine E. Stetson, Hogan Lovells US LLP, Washington, DC, for Amicus Curiae American Hospital Association The Court of Appeals of California Second Circuit panel consists of Circuit Judges Jose A. Cabranes, Ralph K. Winter and John M. Walker. UNIVERSAL PROTECTION: "Franco" Case May Proceed; Stay Dissolved --------------------------------------------------------------- Justice Terry B. O'Rourke's of the Court of Appeals of California, Fourth District, Division One, vacated a stay imposed on the case UNIVERSAL PROTECTION SERVICE, L.P., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent, FLORIDALMA FRANCO, Real Party in Interest, NO. D066919 (Cal. App.) Floridalma Franco was an employee of Universal Protection Service, L.P. She signed an arbitration agreement providing that she and Universal agreed, subject to some exceptions, to arbitrate any and all disputes or claims between them, including disputes relating to their employment relationship and its termination, and disputes over wage and hour violations. In March 2014, Franco on behalf of herself and others similarly situated filed a claim for arbitration with the AAA setting out 11 causes of action based on Universal's alleged violations of the Labor Code and wage orders for not paying its security guards wages for regular and overtime hours, not providing required meal and rest breaks, not reimbursing for employment related expenses, and not providing itemized wage statements. In part, Franco sought to recover civil penalties under the Private Attorneys General Act of 2004 (PAGA) (Lab. Code, Sec. 2698 et seq.). Universal responded to Franco's demand by filing a declaratory relief action in the San Diego Superior Court. It sought judicial declarations that (1) the court, not an arbitrator, decide whether class, collective or other representative arbitration is available under the arbitration agreement and (2) the arbitration agreement required Franco to arbitrate her claims on an individual basis only. The Superior Court granted Franco's petition to compel arbitration, and held that the arbitrator shall decide the issue whether the class action claims are arbitrable. Universal filed a petition for writ of mandate or prohibition seeking an immediate stay and requesting that the court issue an alternative writ directing the superior court to vacate its order, or show cause why it should not be ordered to do so, and, on return of that writ, issue a peremptory writ of mandate directing the court to enter a new order denying Franco's motion to compel arbitration. The court issued an order to show cause, stayed the trial court's order and the parties' arbitration, and deemed, absent objection, Franco's informal response a return to the petition. Justice O'Rourke denied Universal's petition and the stay issued on November 10, 2014, is vacated. A copy of Justice O'Rourke's opinion dated February 27, 2015, is available at http://is.gd/DNHsnifrom Leagle.com. Richard J. Simmons -- rsimmons@sheppardmullin.com -- Jason Wade Kearnaghan -- jkearnaghan@sheppardmullin.com -- Cassidy M. English -- cenglish@sheppardmullin.com -- Michael T. Campbell -- mcampbell@sheppardmullin.com -- at Sheppard, Mullin, Richter & Hampton, for Petitioner Peter R. Kindem -- peter@dion-kindemlaw.com -- at The Dion-Kindem Law Firm; Lonnie C. Blanchard -- lonnieblanchard@gmail.com -- Jeffrey D. Holmes -- at The Blanchard Law Group The Court of Appeals of California, Fourth District, Division One panel consists of Acting Presiding Justice Gilbert Nares and Justices James A. McIntyre and Terry B. O'Rourke. VIRTUS INVESTMENT: Faces Securities Class Action in New York ------------------------------------------------------------ Notice is hereby given a class action lawsuit has been filed on February 20, 2015, in the United States District Court, Southern District of New York by an investor individually and on behalf of all other investors who purchased or otherwise acquired common stock of Virtus Investment Partners Inc. between May 28, 2013 and December 22, 2014. The Class Action Complaint alleges that Virtus and certain of its officers and/or directors violated sections 10(b) and 20(a) of the Securities Exchange Act of 1934. Virtus is a mutual fund company based in Hartford, Connecticut, which is best known for its "AlphaSector Rotation" and "Premium AlphaSector" Funds. The Complaint alleges that since at least May 28, 2013, Virtus knew that its sales and marketing of the AlphaSector's past track record was based on false and misleading statements about its success against the S&P 500 index. Virtus's sales of its AlphaSector funds drove its increases in revenues and income, and caused substantial artificial appreciation in its stock price. On September 5, 2014, the Wall Street Journal first reported that the SEC was investigating F-Squared, a co-adviser responsible for Virtus's AlphaSector Funds, over alleged falsifications of its past track record. Following this disclosure, Virtus's stock fell by $37 per share, and lost more than 16 percent of its value within a few days. Subsequently, on December 22, 2014, the SEC announced its settlement of an administrative proceeding against F-Squared for a penalty of $35 million, revealing further details about the fraud. The Complaint alleges that Virtus concealed its knowledge and role in F-Squared's fraud from its investors, and knew that its stock price was artificially inflated. Plaintiff is represented by Zamansky LLC, a New York-based law firm with extensive experience in prosecuting securities fraud and financial services arbitration and litigation. To learn more about Zamansky LLC, please visit http://www.zamansky.com If you purchased Virtus's stock during the Class Period, you may, no later than 60 days from February 20, 2015, move the court to serve as lead plaintiff of the putative class, if you so choose. In order to serve as lead plaintiff, however, you must meet certain legal requirements. If you wish to discuss this action, or have any questions concerning this notice or your rights or interests, please contact: ZAMANSKY LLC Attention: JACOB H. ZAMANSKY jake@zamansky.com 50 Broadway, 32nd Floor New York, NY 10004 Tel: (212) 742-1414 Fax: (212) 742-1177 VISA INC: Accused by Arizona of Restraining Trade & Fixing Prices ----------------------------------------------------------------- Visa and MasterCard restrain trade and fix prices through their dominance in credit and debit cards, the Arizona attorney general claims in a federal antitrust complaint, reports Jamie Ross, writing for Courthouse News Service. Attorney General Mark Brnovich on February 19 sued the credit-card giants -- which issue the majority of credit and debit cards in the United States through banks and other financial institutions. In doing so, "each bank agrees to abide by the rules of Visa and MasterCard, including rules that restrain competition for merchant acceptance of the banks' credit and debit cards," the lawsuit states. Merchants suffer from it, Arizona says. It claims the companies "have exploited their market power in the markets for merchant acceptance of credit and debit cards by creating interchange fee schedules designed to increase the interchange fees issuing banks are able to obtain from merchants." Merchants must pay an interchange fee to the issuing banks when they accept a Visa or MasterCard credit or debit cards. The fees make up the largest portion of merchant costs when accepting the cards, Arizona says. The competitive restraints prevent merchants from "fostering competition among the issuing banks, and from offering their customers the benefits of using credit or debit cards that are less costly to the merchants," Brnovich says. Competitive restraints include the interchange fees, along with other rules that merchants must abide by, including honoring all cards presented regardless of acceptance fee and not charging a surcharge on transactions with Visa and MasterCard cards. "While Visa and MasterCard nominally refer to these as 'default' interchange fee schedules, suggesting it is possible for issuing banks and merchants to gain different interchange rates by entering agreements among themselves, the competitive restraints prevent such agreements," the lawsuit states. "The setting of 'default' interchange fees effectively fixes the price of acceptance at a supracompetitive level." Brnovich claims that Arizona, like merchants, must pay excessive interchange fees, costing it "significantly higher costs to accept Visa-branded and MasterCard-branded credit and debit cards than it would if Visa and MasterCard had not fixed interchange fees at a supracompetitive level and if member banks competed for merchant acceptance." Merchants cannot reject Visa or MasterCard cards because of their market dominance, the state says: "(T)hey would face serious economic and competitive consequences if they ceased to do so," Brnovich says. "A merchant's efforts to reduce the interchange fees it pays by accepting only cards with lower interchange fees would violate the competitive restraints." A federal court found in 2003 that Visa's credit card market share fluctuated from 43 to 47 percent, and MasterCard's fluctuated between 26 and 28 percent -- giving them two-thirds to three- fourths of the entire market. Since the finding, the two companies' shares have not changed significantly, Arizona says. In May 2013, Arizona opted out of a settlement in a 2005 class action alleging Visa and MasterCard fixed fees to generate more than $40 billion per year. The settlement came to $7.25 billion. Brnovich seeks declaratory judgment, an injunction and damages for violations of Section 1 of the Sherman Act. WAL-MART STORES: Faces "Dubanoski" Suit Alleging TCPA Violations ---------------------------------------------------------------- David Dubanoski, on behalf of himself and others similarly situated v. Wal-Mart Stores, Inc. dba Walmart, Case No. 4:15-cv- 00042-HLM (N.D. Ga., February 27, 2015) alleges violations of the Telephone Consumer Protection Act. The Plaintiff is represented by: Shireen Hormozdi, Esq. HORMOZDI LAW FIRM, LLC 10474 Santa Monica Blvd., Suite 405 Los Angeles, CA 90025 Telephone: (323) 988-2400 Facsimile: (866) 929-2434 E-mail: shormozdi@consumerlawcenter.com WATERFORD HARBOR: Tex. App. Rules in Lot Owner's Suit ----------------------------------------------------- Justice John Donovan of the Court of Appeals of Texas, Fourteenth District, in Houston, ruled on a motion in the appealed case WATERFORD HARBOR MASTER ASSOCIATION, Appellant, v. MICHAEL LANDOLT AND ANN WISMER, Appellees, NO. 14-13-00817-CV (Tex. App.) Waterford Harbor is a subdivision in Galveston County comprised of different types of residences, a marina, and parks. In 1991, the Landolts purchased a home in the Waterford Oaks section of Waterford Harbor. The Oaks is an exclusive, private section within Waterford Harbor, access to this section is through a second gate. Within the Oaks is a park area, which is accessible to residents of Waterford Harbor and the Oaks. The Landolts learned of a change to the Oaks square footage figures in 2002. The minutes of Waterford's board of directors reveal that in December 2002, the square footage of the Oaks was changed from the 394,254, to 594,254, as reflected on the Plat of the subdivision and in the sub-association Declaration. Beginning in 2003, Waterford calculated assessments using the 594,294 square feet figure. The Landolts claim their assessment increased 7% to 8%. Since that time, the Landolts have paid their assessments under protest. In May 2012, Waterford's Master Association called for a vote on three amendments. The first was to amend the Master Declaration to approve the 2002-2003 change to the total square footage of the Oaks. The second was to allow sub-associations to submit petitions to elect their own boards of directors. The third was to increase approval by membership required to amend the Master Declaration from 51% to 67% for purposes of the Pro Rata Share or termination of the covenants. In June 2012, the Landolts received a letter asking homeowners to verify the square footage of the owners' lot, explaining the figures used were taken from the records of the Galveston County Appraisal District (GCAD). The letter listed the square footage of the Landolts' property as 35,911. The Landolts sued Waterford under the Texas Declaratory Judgment Act, seeking a declaration that the Oaks Park be considered Common Facilities. This declaration, the Landolts urged, would result in a reduction in the amount of assessment because community facilities are exempt from inclusion in the calculation on which assessments are based. The Landolts also asked the court to declare that a particular section of property, Reserve A, is a common interest property for every resident of Waterford Harbor, arguing every resident should be allowed to vote a pro rata share of that property. They also asked the court to require Waterford to use the square footage listed on the Plat, and not that listed in the GCAD records, for voting purposes. Finally, the Landolts sought recovery of overpayments on assessments based on the increased square footage due to the 2002-2003 change to the square footage contained in the Plat. The trial court ordered that the 2002-2003 action of Waterford's board of directors changing the typographical error, correcting the square footage from 394,254 to 594,254, was invalid. The trial court further found the May 2012 vote was invalid because the numbers used were based on the "invalid" 2002-2003 voting numbers. The trial court declared that the Oaks park area is not a Common Facility and the trial court rejected that Reserve A should be allocated to the homeowners for purposes of voting. Finally, the trial court awarded the Landolts $16,218.24, along with attorneys' fees, pre and post-judgment interest. Waterford appealed. The appellate court reversed the trial court's judgment insofar as it provides that the 2002-2003 change and the May 2012 vote was invalid and reversed and rendered the award of monetary damages and attorneys' fees in favor of the Landolts. The appellate court affirmed the trial court's judgment declaring the Oaks park area is not a Common Facility, and rejecting the argument that Reserve A was to be allocated for voting. Waterford will recover attorneys' fees in the amount of $33,263.50, plus an additional $15,000.00 for a successful appeal to the court of appeals, and $15,000.00 for a successful appeal to the Supreme Court of Texas. A copy of Justice Donovan's substitute memorandum opinion dated January 22, 2015, is available at http://is.gd/jHg035from Leagle.com. The Court of Appeals of Texas, Fourteenth District panel consists of Chief Justice Kem Thompson Frost and Justices John Donovan and Brown. WCOU RADIO: Sued for Non-Compliance With ADA Standards ------------------------------------------------------ Fredkiey Hurley, individually v. WCOU Radio, Inc. d/b/a Tile Bar, a New York for profit corporation, Case No. 1:15-cv-01495-VSB (S.D.N.Y., February 27, 2015) alleges that the Defendant's property is not compliant with the accessibility requirement of the Americans with Disabilities Act. Mr. Hurley is permanently disabled and confined to a wheelchair. The property at issue is located at 115 1st Avenue, in New York City. The Property is being operated as a food service establishment -- a "place of public accommodation" -- by WCOU, who is a tenant on the Property. The Plaintiff is represented by: Tara Demetriades, Esq. ADA ACCESSIBILITY ASSOCIATES 2076 Wolver Hollow Road Oyster Bay, NY 11771 Telephone: (516)595-5009 E-mail: TDemetriades@Aol.com WELLS FARGO: Removes "Eggers" Suit to Southern District of Iowa --------------------------------------------------------------- The class action lawsuit entitled Eggers v. Wells Fargo Bank, N.A., et al., Case No. LACL131656, was removed from the Iowa District Court in and for Polk County to the U.S. District Court for the Southern District of Iowa (Central). The District Court Clerk assigned Case No. 4:15-cv-00064-JEG-CFB to the proceeding. Plaintiff Richard Eggers alleges violations of the Americans with Disabilities Act. The Plaintiff is represented by: Thomas Andrew Newkirk, Esq. Leonard E. Bates, Esq. NEWKIRK ZWAGERMAN, P.L.C. 515 East Locust, Suite 300 Des Moines, IA 50309 Telephone: (515) 883-2000 Facsimile: (515) 883-2004 E-mail: tnewkirk@newkirklaw.com lbates@newkirklaw.com The Defendants are represented by: Michael A. Giudicessi, Esq. FAEGRE BAKER DANIELS, LLP 801 Grand Avenue, 33rd Floor Des Moines, IA 50309-8011 Telephone: (515) 248-9000 Facsimile: (515) 248-9010 E-mail: michael.giudicessi@faegrebd.com WHIRLY WEST: Suit Seeks to Recover Overtime Wages and Damages ------------------------------------------------------------- Chasity Beasley v. Whirly West, Inc., d/b/a Whirlyball, and Samuel Elias, Case No. 1:15-cv-01738 (N.D. Ill., February 26, 2015) is brought to recover unpaid overtime compensation, liquidated damages, back pay, interest, other equitable and ancillary relief pursuant to the Fair Labor Standards Act. Whirly West, Inc., doing business as Whirlyball, is an Illinois corporation, which maintains offices and does business in the state of Illinois, including this judicial district. Samuel Elias is a shareholder, corporate officer and current director of Whirlyball. The Plaintiff is represented by: Jorge A. Gamboa, Esq. STEPHAN ZOURAS, LLP 205 N. Michigan Avenue, Suite 2560 Chicago, IL 60601 Telephone: (312) 233-1550 Facsimile: (312) 233-1560 E-mail: jgamboa@stephanzouras.com ********* 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 * * *