/raid1/www/Hosts/bankrupt/CAR_Public/150420.mbx
C L A S S A C T I O N R E P O R T E R
Monday, April 20, 2015, Vol. 17, No. 78
Headlines
ACB RECEIVABLES: Violates Fair Debt Collection Act, Suit Claims
ADVANTAGE RESOURCING: Accused of Firing Pregnant Senior Recruiter
AIR NEW ZEALAND: Price-Fixing Class Action May Take Two Years
ALABAMA: Gay Rights Group Balks at Davis' Same-Sex Case Order
ALCON LABORATORIES: Faces "Cunha" Antitrust Suit in California
ALLIED INTERSTATE: Faces "McNeil" Suit in Georgia District Court
AMERICAN EAGLE: "Wood" Suit Moved From Illinois to S.D. New York
AMERICAN IMPORT: "Andrew" Suit Remanded to Trial Court
ANDREU PALMA: Violates Fair Debt Collection Act, Class Suit Says
ANTHEM INC: Data Breach Sheds Light on Tax Fraud Problem
ARAKELIAN ENTERPRISES: Bid to Compel Arbitration Denied
ARBOR HEALTHCARE: Sued in N.D. Illinois for Firing Black Employee
ASSOCIATION LIEN: Accused of Violating Fair Debt Collection Act
BALDWIN MUTUAL: Certification Order in "McCain" Suit Reversed
BANK OF AMERICA: Removes "Cole" Suit to Maryland District Court
BANK OF AMERICA: Judge Dismissed "Costoso" Payday Loan Suit
BANKERS LIFE: Moves "Pedersen" Suit to California District Court
BARRETT BUSINESS: Painters Funds, Bernstein Litowitz to Lead Suit
BAYER AG: Wants False Ad Class Action Tossed Based on Preemption
BELFOR USA: Removes "Leff" Suit to New Jersey District Court
BLIMPIE INTERNATIONAL: Faces Class Action Over "Junk Faxes"
BLOOMBERG L.P.: Allowed to Contact Some Team Leaders in FLSA Suit
BOSTON SCIENTIFIC: Sanford Heisler Files Gender Bias Class Action
BRIAD RESTAURANT: Nevada Judge Won't Certify Class in "Hanks"
BRITT REALTY: Bid for Class Action Certification Granted
CASHCALL INC: Judge Allows Arbitration in "Kemph" Suit
CERTIFIED CREDIT: Accused of Violating Fair Debt Collection Act
CHINA BILINGUAL: Shareholders Sue Over Securities Act Violations
CHINA NATIONAL: "Amorin" Suit Consolidated in Chinese Drywall MDL
COLUMBIA PIPELINE: Antioch Residents Mull Pipeline Class Action
COMMUNITY HEALTH: Sued for Violating Fair Credit Reporting Act
COOK COUNTY: Appellate Court Affirmed Order in "Black" Suit
COXCOM INC: "Baker" Suit Returns to Sedgwick County Court
CREDIT CONTROL: Accused of Violating Fair Debt Collection Act
CTBC BANK: Appeals Court Upholds Order Denying Arbitration Bid
DEN-MAT HOLDINGS: Alan Laub Suit Transferred From Conn. to Calif.
DETROIT MEDICAL: Nurses Seek Trial Date in Wage Collusion Suit
DIRECTORY DISTRIBUTING: Non-Texas Opt-Ins Dismissed From Suit
E-TRADE SECURITIES: Judge Tosses Suit Over Unexercised Options
EAST BINGER: "Stephenson" Royalty Suit Removed to W.D. Oklahoma
EDEN MEMORIAL: Faces Second Suit Over Mishandled Burial Vaults
EDWARD T WEBER: Sued Over Violations of Fair Debt Collection Act
ELECTRONIC MERCHANT: CallFire Exempt from Liability under TCPA
ELS EDUCATIONAL: Idaho Judge Narrows Claims in "Barnes" Suit
ENCORE RECEIVABLE: Violates Fair Debt Collection Act, Suit Says
EVENFLO COMPANY: Sued Over Accident That Left Child Quadriplegic
EXXON MOBIL: Judge Dismisses 2013 Crude Oil spill Class Action
EZ-FLO INTERNATIONAL: Faces Class Action Over Defective Hoses
FIRST NATIONAL: 5th Cir. Affirmed Class Cert. in "Frey" Suit
FORT LAUDERDALE, FL: Wants to Keep Red Light Traffic Program
FREDERICK J HANNA: Violates Fair Debt Collection Act, Suit Says
FULL JEEP: Discriminates Against Disabled Persons, Suit Claims
GARLAND LODGE: Sued for Failing to Comply With ADA Requirements
GB COLLECTS: Removes "Gross" Suit to Southern District of Florida
GENCO IMPORTING: Suit Seeks to Recover Costs Over ADA Violations
GENCOR NUTRIENTS: "Ryan" Case Moved From N.D. Cal. to C.D. Cal.
GOODMAN MANUFACTURING: Removes "Van Kleef" Suit to E.D. Arkansas
GREEN & COHEN: Suit Seeks Damages Arising From Violation of FDCPA
HAMPTON CREEK: Faces Just Mayo False Advertising Class Action
HAYT HAYT: Sued in N.J. for Violating Fair Debt Collection Act
HERBALIFE LTD: Ad Watchdog Opposes Class Action Settlement
HMSHOST CORP: Faces "Migala" Wage and Hour Suit in New Jersey
HOME SWEET: Faces "Anderson" Suit Alleging Violations of FLSA
HUNTER WARFIELD: Accused of Violating Fair Debt Collection Act
IBM CORP: Faces N.Y. Securities Suit by Insulators Pension Fund
INOGEN INC: Pomerantz Law Firm Files Securities Class Action
INSTACART: Sued in California Over Employee Misclassification
JC PENNEY: Must Face Class Action Over Fake Prices
JOHNSON & JOHNSON: Faces Class Action Over Tylenol Packaging
LEIKIN INGBER: Case Nixed for Lack of Subject Matter Jurisdiction
LENTUO INTERNATIONAL: May 12 Lead Plaintiff Deadline Set
LEVEL 3: Plaintiff's Bid to Amend Complaint Partially Granted
LOGAN'S ROADHOUSE: Removes "Bush" Suit to Kentucky District Court
LUMBER LIQUIDATORS: Faces "Copenheaver" Suit Over Unsafe Flooring
LUMBER LIQUIDATORS: Faces "Bryant" Suit in S.D. Mississippi
LUMBER LIQUIDATORS: Faces "Bennett" Laminate Flooring Class Suit
LUMBER LIQUIDATORS: Faces "Oakes" Laminate Flooring Class Action
M&T BANK: Loses Bid to Stay Discovery in Mortgage Insurance Suit
MANUFACTURER'S LIFE: Supreme Court Tosses Class Action Appeal
MICROSOFT CORP: Must Face Class Action Over Xbox Defect
NBCUNIVERSAL INC: Former Intern Challenges Class Action Deal
NEWARK HOUSING: Accused of Mistreating Ex-Coordinator in N.J.
NEXTEL COMMUNICATIONS: 2nd Cir. Vacates Class Certification Order
NIAGARA CREDIT: Violates Fair Debt Collection Act, N.J. Suit Says
NNS TRADING: Fails to Pay Proper Overtime Wages, Fla. Suit Claims
NORTH CAROLINA: "Rutledge" Sex Discrimination Case Dismissed
NORTHLAND GROUP: Violates Fair Debt Collection Act, Suit Claims
NORTHWESTERN MUTUAL: Settles Annuities Class Action for $84 Mil.
NOVARTIS CORP: Faces $110MM Gender Discrimination Class Action
OHIO: Supreme Court Hears Oral Arguments in Speed Camera Case
OKLAHOMA STATE UNIVERSITY: Sued Over Discrimination Claims
PHILIP MORRIS: SC Won't Disqualify Karmeier from Tobacco Suit
PHILIP MORRIS: Class Certification Order in "Miner" Upheld
PHOTOMEDEX INC: July 20 Settlement Fairness Hearing Set
PICKVEST: Class Action Lawyers Defend Opt-Out Provision
PORTFOLIO RECOVERY: Accused of Violating Fair Debt Collection Act
PREMERA BLUE: Faces "Colcord" Class Suit in Oregon District Court
RECKITT BENCKISER: Judge Narrows Claims in "Petruska" Suit
RESONANT INC: Glancy Binkow Files Securities Class Action
RETRIEVAL-MASTERS CREDITORS: Accused of Violating FDCPA in N.J.
RR AUCTION: Class Action Over Fake Merchandise Tossed
RUBIN & ROTHMAN: Violates Fair Debt Collection Act, Suit Claims
SAKUMA BROTHERS: Supreme Court Hears Arguments in Rest Break Case
SANTA BARBARA, CA: Surcharge Is Illegal Tax, Appeals Court Says
SANTA CLARA VALLEY TRANS: Plaintiffs' Bid for Class Cert. Granted
SCHLUMBERGER TECHNOLOGY: Conditional Cert. Granted in "Boudreaux"
SENEX SERVICES: Accused of Violating Fair Debt Collection Act
SEPHORA U.S.A.: "Mies" Suit Won't Proceed as Class Action
SOUTHWEST CREDIT: Sued for Violating Fair Debt Collection Act
ST. GEORGE, UT: Fights Code Enforcement Program Class Action
STARBUCKS CORP: Deceives Frappuccino(R) Consumers, Class Claims
STATION CASINOS: Faces Suit Alleging Discrimination & Retaliation
SUBWAY SANDWICHES: Conditional Cert. Granted in "Bacon" Suit
SYNGENTA CORP: April 27 Hearing Scheduled for GMO Corn Suits
TARGET CORP: To Settle Data Breach Class Action for $10 Million
TRADER JOE'S: Faces Class Action High Arsenic Level in Wines
UNITED STATES: Cal. Judge Won't Certify Appeal on Venue Transfer
UNITED STATES: D.D.C. Judge Dismissed Farmer's Suit
UNIVERSITY OF NORTH CAROLINA: Settles Whistleblower's Suit
US ENGINEERING: JaxCo Asbestos Case Obtains Class-Action Status
VAN'S INT'L: "Campbell" Suit Moved From C.D. to N.D. California
VISA INC: Sued by Holiday Companies Over Antitrust Law Violations
WHITE CASTLE: N.D. Ill. Judge Denies Bid for Class Certification
XOOM CORP: July 2 Hearing Set for Motion to Remand Class Action
XTO ENERGY: Motion for Emergency Stay Granted in Part
YAHOO! INC: Seeks Dismissal of Email Scanning Class Action
YELLOWBOOK INC: Wins Summary Judgment in "Dubick" Suit
* Drug & Device Makers Face More Securities Fraud Class Actions
* In-House Counsel Face More Class Actions, Higher-Exposure Cases
*********
ACB RECEIVABLES: Violates Fair Debt Collection Act, Suit Claims
---------------------------------------------------------------
Jessica Napolitano, on behalf of herself and all others similarly
situated v. ACB Receivables Management, Inc. and John Does 1-25,
Case No. 3:15-cv-02308-MAS-LHG (D.N.J., April 2, 2015) alleges
violations of the Fair Debt Collection Practices Act.
The Plaintiff is represented by:
Ari Hillel Marcus, Esq.
MARCUS LAW LLC
1500 Allaire Avenue, Suite 101
Ocean, NJ 07712
Telephone: (732) 660-8169
E-mail: ari@marcuslawyer.com
ADVANTAGE RESOURCING: Accused of Firing Pregnant Senior Recruiter
-----------------------------------------------------------------
Roshni Ray v. Advantage Resourcing, Advantage Professional,
Advantage Staffing, Hire Thinking, Inc., Advantage United States
Service Center, Recruit Holdings Co. Ltd., David Rubenstein and
Andrew Smith, Case No. 1:15-cv-02355 (S.D.N.Y., March 27, 2015) is
a civil action for monetary damages and other relief based upon
the Defendants' alleged discrimination of the Plaintiff based on
pregnancy and sex, as well as their retaliation and wrongful
discharge of the Plaintiff.
Ms. Roshni Ray is a female citizen of the United States and a
resident of Ridgefield, New Jersey. She was formerly employed as
Senior Recruiter by Advantage Professional, which is now known as
Advantage Staffing. She was pregnant at all relevant times.
Advantage Resourcing is a New York business entity with
headquarters in Norwood, Massachusetts. AR is the parent company
of Defendants Advantage Professional and Advantage Staffing. The
Advantage Defendants are engaged in the placement of professional
and executive employees throughout the world.
Hire Thinking Inc. is a New York business entity with headquarters
in Norwood, Massachusetts. Advantage USSC is a New York entity
with headquarters in Norwood. Recruit Holdings Co. Ltd. is a New
York entity with headquarters in New York City. All of the
Corporate Entities are alter egos of each other. The Individual
Defendants are employees of the Corporate Defendants.
The Plaintiff is represented by:
Megan S. Goddard, esq.
NESENOFF & MILTENBERG, LLP
363 Seventh Avenue, Fifth Floor
New York, NY 10001
Telephone: (212) 736-4500
Facsimile: (212) 736-2260
AIR NEW ZEALAND: Price-Fixing Class Action May Take Two Years
-------------------------------------------------------------
Grant Bradley, writing for The New Zealand Herald, reports that
class action against Air New Zealand and other airlines accused of
price-fixing on flights across the Pacific could stretch on for
two more years.
Air New Zealand and four other airlines are fighting a case lodged
in California alleging they fixed basic fares and fuel surcharges
from 2000.
The national airline has branded the action "opportunistic",
although some other carriers have settled, paying out close to $40
million.
Court documents allege the airlines shared commercially sensitive
information at industry meetings. Lawyers taking the class action
advertised in the Herald on March 17 urging those who may have
been affected to register an interest.
The lawyers will seek up to a third of the eventual settlement
fund.
An Air New Zealand spokeswoman said the proceedings were filed in
2007.
"Air New Zealand, following thorough internal investigation, found
no basis for the claim which it considers to be entirely
opportunistic," she said.
"Airfares are highly competitive and very transparent to
travellers and travel agents and due to an efficient,
international distribution network."
San Francisco law firm Cotchett, Pitre & McCarthy says it does not
know how many claimants there will be among hundreds of thousands
of passengers who flew during the period. Payments would have to
be approved by a United States court and this might not happen
until later this year, said lawyer Adam Zapala.
"At this time, it is unknown how much each eligible member of the
classes will receive. In order to receive a payment you will need
to file a valid claim form. To save time and money, payments will
be made at the conclusion of the case," the lawyers say.
Air France, Cathay Pacific, Japan Airlines, Malaysia Airlines,
Qantas, Singapore Airlines, Thai Airways and Vietnam Airlines are
the "settling defendants" and agreed to pay before the case got to
trial, said the firm.
Mr. Zapala said they denied liability.
"They have paid out, they say they're not admitting liability but
are settling to avoid protracted litigation."
Air New Zealand, All Nippon Airlines, China Airlines, EVA Airlines
and Philippines Airlines have not settled.
Mr. Zapala said pretrial proceedings including taking of
depositions and discovery had taken place but a further appeal was
pending before any trial.
This meant the substantive hearing could be two years away, he
said.
"We believe we have a good case and we hope to bring some measure
of justice to people who feel fares were fixed."
The action is being taken under the umbrella of
AirlineSettlement.com and on its website it says one defendant --
ANA of Japan -- has pleaded guilty to fixing the prices of certain
discounted tickets sold in the United States from at least as
early as April 1, 2000, until at least April 1, 2004.
Mr. Zapala said the case was similar to the global cargo cartel
case that resulted in airlines paying hundreds of millions of
dollars as a result of action by regulators. Air New Zealand
fought that action for several years but agreed to settle two
years ago, paying out $7.5 million.
It has since successfully defended a cargo class action filed in
Australia and was awarded $3 million in costs. It won another
case brought by Australian regulators but that is now under
appeal.
ALABAMA: Gay Rights Group Balks at Davis' Same-Sex Case Order
-------------------------------------------------------------
Brendan Kirby, writing for al.com, reports that a gay rights group
on March 17 accused Mobile County Probate Judge Don Davis of
violating a federal court order regarding same-sex marriage that
the judge re-affirmed a day earlier.
U.S. District Judge Callie V.S. "Ginny" Grande, who struck down
the state's ban on same-sex marriage in January and specifically
ordered Judge Davis to comply with that ruling in February,
indicated on March 16 that she would not put her order on hold
while the U.S. Supreme Court considers the constitutionality of
gay marriage.
"Judge Granade has made it clear once again that same-sex couples
have the constitutional right to marry the person they love,"
Human Rights Campaign Alabama State Director R. Ashley Jackson
said in a prepared statement. "Anti-LGBT activists have led a
crusade to create unnecessary chaos, and time after time, the
federal court has instructed probate judges to follow the law. It
is time for the confusion to end and acknowledge the dignity and
worth of LGBT Alabamians."
After Judge Granade handed down her Feb. 12 order, Judge Davis
complied and reopened the marriage license office that had been
closed all week.
But Judge Davis closed the office again March 4, following a
ruling by the Alabama Supreme Court instructing probate judges to
stop issuing marriage licenses to gays. Attorneys for Davis had
argued that the Alabama Supreme Court changed the situation,
warranting a delay, or "stay," of Judge Granade's ruling.
She declined on March 16. That leaves Judge Davis in the same
position has been in -- caught between conflicting orders from two
different courts.
Heather Fann, an attorney representing gay couples along with the
National Center for Lesbian Rights, said on March 16 that she
believes Davis is not violating Judge Granade's order as long as
he keeps the office closed to all couples. Alabama law holds that
probate judges "may issue" licenses but does not require them to.
But Ms. Fann added that she does not believe halting marriages
indefinitely is a viable option politically.
Also on March 17, attorneys for Davis filed court papers opposing
an effort by plaintiffs in a federal suit to certify the complaint
as a class-action suit that could lead to an order specifically
ordering all probate judges not to discriminate against gay
couples seeking marriage licenses. They cited that fact that a
federal judge in Montgomery already has granted a delay in a same-
sex marriage case. Proceeding would increase confusion, the
lawyers wrote.
'That confusion is unnecessary in light of the Supreme Court's
imminent ruling, and it would be unfair to Alabama's probate
judges who, like Judge Davis, would be subject to conflicting
court orders," the document states.
The lawyers additionally maintain that the plaintiffs did not
properly define the class and that it would be unfair to make
Davis represent all probate judges when those judges have
expressed conflicting opinions about Judge Granade's ruling.
Judge Granade gave the Alabama Attorney General's Office until
March 23 to respond to the plaintiffs' request to amend the
complaint and certify it as a class-action suit.
ALCON LABORATORIES: Faces "Cunha" Antitrust Suit in California
--------------------------------------------------------------
Amanda Cunha, Individually and on Behalf of all others similarly
situated v. Alcon Laboratories, Inc., Bausch + Lomb, Johnson &
Johnson Vision Care, Inc., Coopervision, Inc., and ABB Optical
Group, Case No. 4:15-cv-01413-KAW (N.D. Cal., March 27, 2015)
alleges that the Defendants' minimum resale price maintenance
practices constitute unreasonable restraints of trade in violation
of the Sherman Act and state antitrust and unfair competition
laws.
Ms. Cunha asserts that the Manufacturer Defendants conspired with
each other and with Defendant ABB Optical Group, a wholesaler, as
well as independent eye care professionals represented by ABB and
their trade association, the American Optometric Association, to
impose minimum resale prices on certain contact lenses by
subjecting them to so-called Unilateral Pricing Policies and,
thereby, eliminating price competition on those products by "big
box" stores, including those owned by Wal-Mart Stores, Inc. and
Meijer, Inc.
Alcon is a United States company headquartered in Fort Worth,
Texas, and is a division of Novartis International AG. During the
Class Period, the Defendants or their predecessors, wholly-owned
or controlled subsidiaries or affiliates manufactured and sold
disposable contact lenses in interstate commerce in the United
States.
The Plaintiff is represented by:
Stephen R. Basser, Esq.
Samuel M. Ward, Esq.
BARRACK, RODOS & BACINE
600 West Broadway, Suite 900
San Diego, CA 92101
Telephone: (619) 230-0800
Facsimile: (619) 230-1874
E-mail: sbasser@barrack.com
sward@barrack.com
- and -
Gerald J. Rodos, Esq.
Jeffrey B. Gittleman, Esq.
Beth T. Seltzer, Esq.
BARRACK, RODOS & BACINE
Two Commerce Square
2001 Market Street, Suite 3300
Philadelphia, PA 19103
Telephone: (215) 963-0600
Facsimile: (215) 963-0838
E-mail: grodos@barrack.com
jgittleman@barrack.com
bseltzer@barrack.com
- and -
Ari Y. Basser, Esq.
BASSER LAW
1875 Century Park East, Suite 1000
Los Angeles, CA 90067
Telephone: (310) 788-8660
Facsimile: (866) 478-3454
E-mail: abasser@basserlaw.com
ALLIED INTERSTATE: Faces "McNeil" Suit in Georgia District Court
----------------------------------------------------------------
Aleda H. Smith McNeil, individually and on behalf of herself and
all others similarly situated v. Allied Interstate, LLC, Case No.
1:15-cv-00938-TWT (N.D. Ga., March 31, 2015) seeks relief under
the Electronic Funds Act.
The Plaintiff is represented by:
Shireen Hormozdi, Esq.
HORMOZDI LAW FIRM, LLC
1770 Indian Trail Lilburn Road, Suite 175
Norcross, GA 30093
Telephone: (678) 395-7795
Facsimile: (866) 929-2434
E-mail: shormozdi@consumerlawcenter.com
AMERICAN EAGLE: "Wood" Suit Moved From Illinois to S.D. New York
----------------------------------------------------------------
The class action lawsuit titled Wood v. American Eagle Outfitters,
Inc., et al., Case No. 1:15-cv-00570, was transferred from the
U.S. District Court for the Northern District of Illinois 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-
02370-DLC to the proceeding.
The Plaintiff is represented by:
Joseph Jeremy Siprut, Esq.
Ismael Tariq Salam, Esq.
SIPRUT PC
17 North State Street, Suite 1600
Chicago, IL 60602
Telephone: (312) 236-0000
Facsimile: (312) 878-1342
E-mail: jsiprut@siprut.com
isalam@siprut.com
The Defendants are represented by:
Paul Gamboa, Esq.
GORDON & REES LLP
One North Franklin, Suite 800
Chicago, IL 60606
Telephone: (312) 565-1400
E-mail: pgamboa@gordonrees.com
AMERICAN IMPORT: "Andrew" Suit Remanded to Trial Court
------------------------------------------------------
Chief Judge Eric T. Washington of the District of Columbia Court
of Appeals remanded the case of COLIN ANDREW, Appellant, v.
AMERICAN IMPORT CENTER, APPELLEE, AND DISTRICT OF COLUMBIA,
Intervenor, NO. 09-CV-893 (D.C.)
Tehran Ghasri, an American Import Center (AIC) salesman requested
Colin Andrew to help Baback Fadavi to purchase a vehicle. Fadavi
was 90% blind, such that he could not obtain a driver's license or
purchase a car, but he needed one so that his mother could drive
him around. Andrew alleged that Ghasri asked him to guarantee the
purchase of the vehicle, which Mrs. Fadavi would own. In reality,
the contract that Andrew signed listed him as the purchaser rather
than the guarantor of the vehicle. The vehicle was delivered to
Mrs. Fadavi, but the title was in Andrew's name. The vehicle was
later repossessed and sold, and Andrew filed a suit after a
deficiency of $8,817.50 was assessed against him.
Andrew brought a suit against AIC, Ghasri, and Wells Fargo Auto
Finance, alleging fraud, breach of contract, and violations of the
District of Columbia Consumer Protection Procedures Act, D.C. Code
Section 28-3901 et seq. (2012 Repl.). AIC and Wells Fargo moved to
dismiss Andrew's complaint and compel arbitration because there
was an arbitration clause in the finance contract he had signed.
Andrew moved for discovery on the issue of whether the arbitration
agreement was unconscionable. The trial court denied AIC's and
Wells Fargo's motion to dismiss but granted their motion to compel
arbitration, staying the proceedings in Superior Court pending
completion of arbitration. Andrew appealed.
Chief Judge Washington reversed the judgment and remanded the suit
to the Superior Court.
A copy of Chief Judge Washington's opinion dated February 26,
2015, is available at http://is.gd/MIAidA from Leagle.com.
Thomas C. Willcox for appellant
James C. McKay, Jr., with whom Irvin B. Nathan, then-Attorney
General for the District of Columbia, Todd S. Kim, Solicitor
General, and Loren L. Alikhan, Deputy Solicitor General, were on
the brief, for intervenor
V. David Zvenyach, with whom John Hoellen was on the brief, for
amicus curiae, District of Columbia Council
David R. Mahdavi filed a Statement in Lieu of Brief for appellee
The District of Columbia Court of Appeals panel consists of Chief
Judge Eric T. Washington and Judges Frank Q. Nebeker and Phyllis
D. Thompson.
ANDREU PALMA: Violates Fair Debt Collection Act, Class Suit Says
----------------------------------------------------------------
Jack D Kemper, on behalf of himself and others similarly situated
v. Andreu, Palma & Andreu, PL, Case No. 1:15-cv-21226-JEM (S.D.
Fla., March 30, 2015) is brought over alleged violations of the
Fair Debt Collection Practices Act.
The Plaintiff is represented by:
James Lee Davidson, Esq.
Jesse S. Johnson, Esq.
GREENWALD DAVIDSON PLLC
5550 Glades Road, Suite 500
Boca Raton, FL 33431
Telephone: (561) 826-5477
Facsimile: (561) 869-1919
E-mail: jdavidson@mgjdlaw.com
jjohnson@gdrlawfirm.com
ANTHEM INC: Data Breach Sheds Light on Tax Fraud Problem
--------------------------------------------------------
Matt Smith, writing for Fox59, reports that as tax day nears, a
growing number of Hoosiers are finding out they've become victims
of tax fraud.
The federal government reports the problem cost American taxpayers
$5.2 billion in 2013 and is expected to grow to $21 billion by
2016.
Indiana Attorney General Greg Zoeller said the recent Anthem data
breach shed light on the larger problem.
"We've talked about this as a problem that's going to gain
traction," Mr. Zoeller said. "It's unfortunate it's taken
something like the Anthem breach to get people's attention."
In February the second largest U.S. health insurer announced its
computers were hacked, compromising the data of as many as 80
million customers, including an estimated 4.5 million in Indiana,
according to the attorney general's office.
Mr. Zoeller recently returned from a nationwide meeting of
attorneys general, specifically addressing massive data breaches
from companies like Anthem, Target, Home Depot and JP Morgan
Chase.
Mr. Zoeller, though, is still careful not to directly link this
year's increase in tax fraud to the Anthem breach.
"Quite frankly I think by the time they steal 80 million data
points, it's going to take them a little while to synthesize," he
said. "So if they can turn it around that fast, they must have
been planning this for a good long time, but I don't know we
should make that assumption just yet."
But Lynn Toops, a class action attorney with Cohen & Malad, is
suing Anthem on behalf of customers in Indiana and across the
country.
"We certainly believe it's connected to Anthem," she said. "We
heard from an individual where the IRS itself told this individual
that Anthem was the cause."
In a statement, an Anthem spokesperson said in part, "We are
continuing to investigate along with the FBI and a cyber-security
firm. At this point, there is no evidence that would link the
Anthem cyber-attack with the filing of fraudulent tax returns."
The numbers in Indiana, Mr. Zoeller said are eye-opening: 395
reports of data breaches in Indiana last year alone.
"We're hoping we'll get something from the federal government
before too long," he said. "But in the meantime states aren't
really in a position to wait."
Mr. Zoeller said the best protection for consumers is to freeze
their credit.
Anthem is offering free credit monitoring for 24 months.
ARAKELIAN ENTERPRISES: Bid to Compel Arbitration Denied
-------------------------------------------------------
Justice Victoria Gerrard Chaney of the Court of Appeals of
California, Second District Division One reversed and remanded the
case EDIXON FRANCO, Plaintiff and Respondent, v. ARAKELIAN
ENTERPRISES, INC., Defendant and Appellant, NO. B232583 (Cal. Ct.
App.)
Athens Disposal Company, Inc., d/b/a Athens Services (Athens
Services) was in the business of trash removal, hauling, disposal,
and recycling, and that it was engaged in interstate commerce
within the meaning of the Federal Arbitration Act (9 U.S.C.
Sections 1-16).
Edixon Franco filed a lawsuit individually and on behalf of other
similarly situated current and former employees, alleging his
status as an employee of Athens Services. In the first through
fourth and sixth causes of action, Franco brought claims as an
individual and putative class representative, seeking relief
against Athens Services based on his employment as a nonexempt
hourly employee, alleging that Athens Services engaged in
systematic and illegal Labor Code and wage-order violations. In
the fifth cause of action, Franco sued in a representative
capacity under the Labor Code Private Attorneys General Act of
2004 (Lab. Code, Sections 2698-2699.5) (PAGA), seeking civil
penalties for Athens Services' violations of its Labor Code
obligations to Franco and other current and former employees. The
sixth cause of action alleged a violation of the California unfair
competition law.
Athens Services petitioned to compel arbitration, and to dismiss
or stay the civil action. The trial court granted the petition to
compel arbitration. Franco appealed.
The appellate court concluded that Athens Services' mutual
arbitration policy containing the provision requiring arbitration
and waiving class actions were unenforceable. The case was
returned to the trial court.
Counsel for Athens Services informed the court that Franco's suit
had named the wrong defendant: that Athens Disposal Company, Inc.,
doing business as Athens Services, was not in fact Franco's
employer; that Franco's actual employer was Arakelian, doing
business as Athens Services. Franco amended the complaint to add
Arakelian, doing business as Athens Services, as a Doe defendant.
Arakelian filed a second petition to compel arbitration, in which
the trial court denied. Arakelian appealed.
Justice Chaney reversed and remanded with directions the trial
court's order denying the petition of defendant Arakelian to
compel arbitration of the plaintiff's claims for individual and
class action relief, and for representative relief under PAGA.
A copy of Justice Chaney's opinion dated February 26, 2015, is
available at http://is.gd/o9AYISfrom Leagle.com.
Kyle D. Brown -- kbrown@hillfarrer.com -- James A. Bowles --
jbowles@hillfarrer.com -- E. Sean McLoughlin --
smcloughlin@hillfarrer.com -- at Hill, Farrer & Burrill, for
Defendant and Appellant
For Plaintiff and Respondent:
Matthew J. Matern, Esq.
Farzad Rastegar, Esq.
Thomas S. Campbell, Esq.
RASTEGAR & MATERN
1010 Crenshaw Boulevard #100
Torrance, CA 90501
Telephone: 310-218-5500
The California Court of Appeals panel consists of Presiding
Justice Frances Rothschild and Justices Victoria Gerrard Chaney
and Jeffrey Johnson.
ARBOR HEALTHCARE: Sued in N.D. Illinois for Firing Black Employee
-----------------------------------------------------------------
Gwendolyn Simms v. Arbor Healthcare Company, a Delaware
corporation, and Stay Care Management, Ltd., a Delaware
Corporation, Case No. 1:15-cv-02660 (N.D. Ill., March 30, 2015)
alleges employment discrimination based upon race and retaliation.
Ms. Simms is a citizen and resident of Wauconda, Lake County,
Illinois. She asserts that she was a member of protected classes
(Black, light skin) when the alleged unlawful employment practices
occurred.
Arbor is a Delaware corporation engaged in the business of health
care. Stay Care is a Delaware corporation engaged in the business
of health care.
The Plaintiff is represented by:
Eugene K. Hollander, Esq.
Paul W. Ryan, Esq.
Jonathan L. Hoeven, Esq.
THE LAW OFFICES OF EUGENE K. HOLLANDER
230 W. Monroe, Suite 1900
Chicago, IL 60606
Telephone: (312) 425-9100
E-mail: pryan@ekhlaw.com
ASSOCIATION LIEN: Accused of Violating Fair Debt Collection Act
---------------------------------------------------------------
Teresa Doskocz, Individually and on Behalf of All Others Similarly
Situated v. Association Lien Services, A California Corporation,
Case No. 3:15-cv-01525-LB (N.D. Cal., April 2, 2015) accuses the
Defendant of violating the Fair Debt Collection Practices Act.
The Plaintiff is represented by:
Arthur David Levy, Esq.
LAW OFFICE OF ARTHUR D. LEVY
445 Bush Street, 6th Floor
San Francisco, CA 94108
Telephone: (415) 702-4550
Facsimile: (415) 814-4080
E-mail: arthur@yesquire.com
BALDWIN MUTUAL: Certification Order in "McCain" Suit Reversed
-------------------------------------------------------------
Justice Lyn Stuart of the Supreme Court of Alabama reversed and
remanded the case of Baldwin Mutual Insurance Company, v. Gloria
Mitchell McCain, NO. 1131058 (Ala.) to the Montgomery Circuit
Court.
Mitchell McCain owned a house in Montgomery and was insured by
Baldwin Mutual Insurance Company. The insurance policy provides
that, any covered property losses would be settled at actual cash
value at the time of loss but not exceeding the amount necessary
to repair or replace the damaged property.
McCain's house was damaged by a windstorm in 2005 and by a
lightning strike in 2006. In both occasions, Baldwin Mutual
retained an independent adjuster to examine McCain's damage
property and to prepare an estimate to repair the damage and paid
McCain's claim in accordance with the estimate prepared by the
adjuster. Pursuant to a work-authorization form signed by McCain,
Baldwin Mutual paid the funds directly to McCain's contractor.
On September 29, 2010, McCain filed a complaint against Baldwin
Mutual. As subsequently amended, the complaint stated one claim of
breach of contract and another claim generally asserting
misrepresentation and suppression of material facts. Noting that
hundreds or thousands of Baldwin Mutual policyholders were likely
negatively affected by Baldwin Mutual's practices in this regard,
McCain also sought class-action certification of her claims.
Baldwin Mutual filed an answer denying that it had improperly
calculated what was owed McCain or any other policyholder under
the terms of its actual-cash-value policies, and it subsequently
moved for a summary judgment on the same basis, however, that
summary-judgment motion was ultimately denied. On June 3, 2014,
the trial court entered an order certifying the action as a class
action. Baldwin Mutual appealed the order.
Justice Stuart reversed the trial court's order certifying the
action and remanded the case to the Montgomery Circuit Court. A
copy of Justice Stuart's opinion dated February 20, 2015, is
available at http://is.gd/XTYpy7from Leagle.com.
The Supreme Court of Alabama panel consists of Chief Justice Roy
S. Moore and Justices Lyn Stuart, Greg Shaw, Alisa Kelli Wise and
Tom Parker.
BANK OF AMERICA: Removes "Cole" Suit to Maryland District Court
---------------------------------------------------------------
The class action lawsuit styled Cole v. Bank of America, N.A.,
Case No. CAE15-00508, was removed from the Circuit Court for
Prince George's County, Maryland, to the U.S. District Court for
the District of Maryland (Greenbelt). The District Court Clerk
assigned Case No. 8:15-cv-00904-PJM to the proceeding.
The complaint is based on an alleged mortgage loan extended to
Plaintiff Jennifer Cole on April 9, 2004, after which she alleges
that she obtained a refinance and the existing mortgage was
satisfied. She alleges that BANA failed to return the underlying
promissory note to her upon satisfaction of the mortgage and this
alleged failure damaged her.
The Defendant is represented by:
Craig Robert Haughton, Esq.
MCGUIREWOODS LLP
Seven Saint Paul St., Suite 1000
Baltimore, MD 21202
Telephone: (410) 659-4404
Facsimile: (410) 659-4472
E-mail: chaughton@mcguirewoods.com
BANK OF AMERICA: Judge Dismissed "Costoso" Payday Loan Suit
-----------------------------------------------------------
District Judge Arthur D. Spatt of the Eastern District of New York
granted defendant's motion to dismiss the case JEANETTE COSTOSO,
individually and on behalf of all others similarly situated,
Plaintiff, v. BANK OF AMERICA, N.A., Defendant, NO. 14-CV-4100
(ADS)(ARL) (E.D.N.Y.)
Jeanette Costoso has deposit accounts with the defendant Bank of
America, N.A.(BOFA), the terms of which are contained in a
standardized agreement. Plaintiff applied for and received a
payday loan from Mambo Cash in the amount of $500, on May 4, 2013,
from North Cash in the amount of $400 on May 17, 2013, from GTI
Holdings in the amount of $250 on May 22, 2013, from United
Holdings in the amount of $300 on June 10, 2013, from Hydra Fund
in the amount of $400 on June 6, 2013, and from Mass Street in the
amount of $300 on June 6, 2013. All payment was processed as a
debit by the defendant BOFA resulting in the defendant taking the
amounts from plaintiff's account.
The Plaintiff alleges that because Payday Lenders do not have bank
charters, their business model is based on high levels of loss and
high customer acquisition costs, requiring access to significant
lines of credit. Major banks such as the Defendant provide these
lines of credit to Payday Lenders. The plaintiff also alleges that
individuals with ties to the defendant sit on the Boards of
Directors of at least three of the nation's largest Payday
Lenders. The plaintiff filed a suit, individually and on behalf of
all others similarly situated, alleges that the Payday Loans
issued to her violated the provisions of New York Banking Law
Section 14-a, subdivision 2 and New York Penal Law Section 190.40.
The Defendant moved pursuant to Federal Rule of Civil Procedure
12(b)(6) to dismiss the complaint for failure to state a claim
upon which relief can be granted.
Judge Spatt granted defendant's motion pursuant to Fed. R. Civ. P.
12(b)(6) to dismiss the complaint for failure to state a claim
upon which relief can be granted.
A copy of Judge Spatt's memorandum of decision and order dated
February 24, 2015, is available at http://is.gd/MyKCtWfrom
Leagle.com
Darren T. Kaplan, Esq., Of Counsel, Darren Kaplan Law Firm, P.C.,
New York, NY, Attorneys for the Plaintiff
Hassan Zavareei, Esq. -- hzavareei@tzlegal.com -- Jeffrey D.
Kaliel, Esq. -- jkaliel@tzlegal.com -- at Tycko & Zavareei LLP,
Attorneys for the Plaintiff
Jason H. Alperstein, Esq., Of Counsel, Kopelowitz Ostrow P.A.,
Fort Lauderdale, FL, Attorneys for the Plaintiff
Gosselin Sathya, Esq. -- sgosselin@hausfeld.com -- at Hausfeld
LLP, Attorneys for the Plaintiff
Stephen N. Six, Esq. -- six@stuevesiegel.com -- at Stueve Siegel
Hanson LLP, Attorneys for the Plaintiff
Maria B. Earley, Esq. -- mearley@sidley.com -- Benjamin R. Nagin,
Esq. -- bnagin@sidley.com -- at Sidley Austin LLP, Attorneys for
the Defendant
BANKERS LIFE: Moves "Pedersen" Suit to California District Court
----------------------------------------------------------------
The lawsuit captioned Pedersen v. Bankers Life and Casualty
Company, et al., Case No. CIV 532000, was removed from the
Superior Court of the State of California for the County of San
Mateo to the U.S. District Court for the Northern District of
California.
The lawsuit asserts several causes of action, including
sex/pregnancy discrimination, violation of California Family
Rights Act and violation of FEHA/California Pregnancy Disability
Leave Act.
The Plaintiff is represented by:
Samuel Noah Kesten, Esq.
KESTEN-LAW
400 Redhill Ave.
San Anselmo, CA 94960
Telephone: (415) 497-3957
Facsimile: (888) 619-3210
E-mail: sam@kesten-law.com
- and -
Steven Mark Kesten, Esq.
KESTEN-LAW
PO Box 426
San Anselmo, CA 94979
Telephone: (415) 457-2668
Facsimile: (888) 619-3210
E-mail: stevekesten@gmail.com
- and -
Peter Francis Lacques, Esq.
LAW OFFICE OF PETER F. LACQUES
400 Red Hill Avenue
San Anselmo, CA 94960
Telephone: (415) 454-2100
Facsimile: (888) 848-9519
E-mail: placques@aol.com
The Defendants are represented by:
William Hays Weissman
Johanna R. Carney, Esq.
LITTLER MENDELSON, P.C.
Treat Towers
1255 Treat Boulevard, Suite 600
Walnut Creek, CA 94597
Telephone: (925) 932-2468
Facsimile: (925) 946-9809
E-mail: wweissman@littler.com
jcarney@littler.com
BARRETT BUSINESS: Painters Funds, Bernstein Litowitz to Lead Suit
-----------------------------------------------------------------
On November 11, 2014, plaintiffs Mitchell Arciaga, Joseph Masseli,
and Vimal Mathimaran (the Barrett Investor Group) filed a class
action complaint on behalf of themselves and others similarly
situated against defendants Barrett Business Services, Inc.
(Barrett Business), Michael L. Elich, and James D. Miller. The
Barrett Investor Group asserts two claims for violations of the
Securities Exchange Act of 1934. They alleged that defendants made
false statements, misleading statements, or material omissions
that resulted in the decline of the company's stock value,
injuring all investors.
On November 13, 2014, plaintiff Christopher P. Carnes filed a
complaint on behalf of himself and others similarly situated
against defendants asserting the same violations of the Exchange
Act. Cause No. C14-5903BHS. On November 17, 2014, plaintiff Shiva
Stein filed a complaint on behalf of herself and others similarly
situated against defendants asserting the same violations of the
Exchange Act. Cause No. C14-5912BHS.
On January 5, 2015, the Barrett Investor Group, Tulsa Municipal
Employees' Retirement Plan (Tulsa Plan), an interested party,
Bakers Local No. 433 Pension Fund (Bakers Fund), an interested
party, and Painters Funds, an interested party, all filed motions
for consolidation of related actions, for appointment as lead
plaintiff and for approval and selection of lead and liaison
counsel. On January 16, 2015, the Tulsa Plan, the Bakers Fund
withdrew their motions and stated its support for the Painters
Funds to be appointed lead plaintiff.
Before the court are the Barrett Investor Group's motion for
consolidation of related actions, for appointment as lead
plaintiff and for approval and selection of lead and liaison
counsel; and Painters & Allied Trades District Council No. 35
Pension and Annuity Funds' (Painters Funds) motion for
consolidation of related actions, for appointment as lead
plaintiff and for approval and selection of lead and liaison
counsel.
District Judge Benjamin H. Settle of the Western District of
Washington, Tacoma, granted in part and denied in part the Barrett
Investor Group's motion and granted Painters Funds' motion. The
Court denied the Barrett Investor Group's motion to appoint lead
plaintiff, and granted the Painters Funds' motion to be appointed
lead plaintiff. The Court also granted Painters Funds' motion to
appoint the firm Bernstein Litowitz Berger & Grossman, LLP as lead
counsel. The consolidated action shall be re-captioned as In re
Barrett Business Services Securities Litigation, Cause No. C14-
5884BHS.
The case was originally captioned: MITCHELL ARCIAGA, JOSEPH
MASSELI, and VIMAL MATHIMARAN, individually and on behalf of all
others similarly situated Plaintiffs, v. BARRETT BUSINESS
SERVICES, INC., MICHAEL L. ELICH, and JAMES D. MILLER, Defendants.
CHRISTOPHER P. CARNES, individually and on behalf of all others
similarly situated, Plaintiffs, v. BARRETT BUSINESS SERVICES,
INC., MICHAEL L. ELICH, and JAMES D. MILLER, Defendants. SHIVA
STEIN, individually and on behalf of all others similarly
situated, Plaintiffs, v. BARRETT BUSINESS SERVICES, INC., MICHAEL
L. ELICH, and JAMES D. MILLER, Defendants, CASE NOS. C14-5884 BHS,
C14-5903 BHS, C14-5912BHS (W.D. Wash.)
A copy of Judge Settle's order dated February 25, 2015, is
available at http://is.gd/5Hdxvm from Leagle.com
Mitchell Arciaga, Joseph Masseli, Vimal Mathimaran, Plaintiffs,
represented by:
Clifford A Cantor, Esq.
Law Offices of Clifford A. Cantor, P.C.
627 208th Ave. SE Sammamish, WA, 98074
Phones: (425) 868-7813
Fax: (425) 732-3752
- and -
Avi Wagner, Esq.
THE WAGNER FIRM
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: 310-491-7949
Facsimile: 310-491-7949
Shiva Stein, Plaintiff, represented by Dan Drachler --
ddrachler@zsz.com -- at ZWERLING SCHACHTER & ZWERLING; Jason T
Dennett -- jdennett@tousley.com -- at CARLSON & DENNETT; Jeremy A.
Lieberman -- jalieberman@pomlaw.com -- at POMERANTZ GROSSMAN
HUFFORD DAHLSTROM & GROSS LLP
Christopher P. Carnes, Plaintiff, represented by Dan Drachler --
ddrachler@zsz.com -- at ZWERLING SCHACHTER & ZWERLING
Barrett Business Services, Inc., Michael L. Elich and James D.
Miller, Defendants, represented by Diane M. Meyers --
diane.meyers@millernash.com -- Bruce Laird Campbell --
bruce.campbell@millernash.com -- Thomas C Sand --
tom.sand@millernash.com -- at MILLER NASH GRAHAM & DUNN LLP
Bakers Local No. 433 Pension Fund, Interested Party, represented
by Elizabeth Ann Leland -- bleland@kellerrohrback.com -- Lynn
Lincoln Sarko -- lsarko@kellerrohrback.com -- at KELLER ROHRBACK
Tulsa Municipal Employees' Retirement Plan, Interested Party,
represented by Jason T Dennett at CARLSON & DENNETT
Painters & Allied Trades District Council No. 35 Pension and
Annuity Funds, Interested Party, represented by Benjamin Galdston
-- beng@blbglaw.com -- Hannah Greenwald Ross -- hannah@blbglaw.com
-- at BERNSTEIN LITOWITZ BERGER & GROSSMANN; Bradley S Keller --
bkeller@byrneskeller.com -- John Arthur Tondini --
jtondini@byrneskeller.com -- at BYRNES KELLER CROMWELL LLP
Barrett Investor Group, Interested Party, represented by, Leanne E
Heine -- lheine@glancylaw.com -- Lionel Z Glancy --
lglancy@glancylaw.com -- Robert V Prongay --
RProngay@glancylaw.com -- at GLANCY BINKOW & GOLDBERG LLP;
Clifford A Cantor -- at Law Offices of Clifford A. Cantor, P.C.
BAYER AG: Wants False Ad Class Action Tossed Based on Preemption
----------------------------------------------------------------
Paul Seeley, Esq., of Mullin Richter & Hampton LLP, in an article
for National Law Review, reports that in the recent case of
Gallagher v. Bayer AG, Case No. 14-cv-04601-WHO (N.D. Cal. March
10, 2015), the plaintiffs asserted that the defendants Bayer AG
and related entities (collectively, "Bayer") engaged in false
advertising under California, New York, and Florida law. The
products in question were 20 varieties of One-A-Day vitamins that
each included advertising on their labels stating that they
supported "heart health," "immunity" and "physical energy." On
behalf of a putative class of purchasers, the plaintiffs alleged
that the statements were false, misleading, and constituted
illegal advertising under state law based on the regulations of
the Food & Drug Administration (the "FDA"). Bayer moved to
dismiss the complaint on multiple grounds, including the argument
that the claims satisfied federal law, thereby preempting the
plaintiffs' state law claims.
To understand Bayer's preemption argument, some context is
necessary. The FDA, through the Federal Food, Drug, and Cosmetic
Act ("FDCA"), is empowered to regulate the labeling of foods and
drugs. The FDCA expressly preempts state laws that purport to
impose "more or inconsistent burdens on manufacturers than the
burdens imposed by the FDCA." Bayer, p. 6. Thus, a manufacturer
that complies with the FDCA's labeling requirements need not also
comply with different labeling requirements established by 50
different states.
The other relevant statute to this case, the Dietary Supplement
Health and Education Act ("DSHEA"), defines the rules regarding
advertising and labeling for dietary supplements. DSHEA,
generally, defines two types of advertising claims: "disease"
claims and "structure/function" claims. "Disease" claims are
"express or implied claims 'to diagnose, mitigate, treat, cure, or
prevent a specific disease or class of diseases.'" Bayer, p. 6.
"Structure/function" claims, on the other hand, may ". . .
describe the role of a nutrient or dietary ingredient intended to
affect the structure or function in humans, [and/or] characterizes
the documented mechanism by which a nutrient or dietary ingredient
acts to maintain such structure or function." Bayer, pp. 5-6.
Importantly, while a supplement manufacturer must receive pre-
approval from the FDA before making any "disease" claims in its
advertising, a "structure/function" claim only requires that the
manufacturer make appropriate disclosures and submit the claim to
the FDA within 30 days of its first appearance. Bayer, p. 6 n. 2.
In this case, the plaintiffs argued that Bayer's advertising of
"heart health" and support for "immunity" were unapproved
"disease" claims (the plaintiffs conceded that the statement
"supports physical energy" was a structure/function claim). Thus,
if these claims were, in fact, "disease" claims that had not been
preapproved by the FDA, then Bayer could be liable for unlawful
advertising practices.
In addressing Bayer's motion to dismiss, the Court first found
that the express preemption language of the FDCA applied equally
to the supplement advertising rules set forth under DSHEA. Bayer,
pp. 7-8. The Court reasoned that, because DSHEA gives the FDA
authority to regulate the labeling of supplements, the language of
the FDCA must apply to the regulations of DSHEA such that no state
may impose burdens that "exceed or contradict the labeling
requirements" of the DSHEA. Bayer, pp. 8-9. Thus, if Bayer's
advertising claims were permissible under DSHEA, then they could
not be illegal under state law.
The Court then evaluated whether the alleged advertisements were
"disease" or "structure/function" claims. With respect to the
"supports heart health" claim, the Court relied on guidance and
regulations from the FDA that found that similar advertisements
(like "helps maintain cardiovascular function") were
structure/function claims. Bayer, pp. 9-10. For the "supports
immunity" claim, again, the Court relied on FDA guidance to note
that similar claims (like "supports the immune system") had been
determined to be structure/function claims. Bayer, p. 11. Thus,
because Bayer's advertising consisted of structure/function
claims, the express preemption of the FDCA prevented the
plaintiffs from using state law to impose liability against Bayer
for making illegal "disease" claims. The plaintiffs were given
leave to amend, however, to allege "by virtue of specifically
identified packaging or marketing" that Bayer was actually linking
these advertisements to the prevention or treatment of disease.
Bayer, p. 11.
Simply proving that the FDCA and DSHEA preempted the plaintiffs'
attempts to impose liability under state law was only half the
battle. Indeed, under both state law and DSHEA, advertisements
may not be false or deceptive, so state laws requiring truthful
advertising of supplements are not preempted. Bayer, p. 9. Thus,
as an alternative theory, the plaintiffs argued that the
statements "supports heart health," "supports immunity," and
"supports physical energy" were false and misleading even if they
were not illegal "disease" claims. Bayer, pp. 12-13.
BELFOR USA: Removes "Leff" Suit to New Jersey District Court
------------------------------------------------------------
The class action lawsuit styled Leff v. Belfor USA Group, Inc.,
Case No. L-006633-14, was removed from the Superior Court of New
Jersey, Middlesex County-Law Division, to the U.S. District Court
for the District of New Jersey (Newark). The District Court Clerk
assigned Case No. 2:15-cv-02275-SRC-CLW to the proceeding.
The lawsuit asserts fraud-related claims.
The Plaintiff is represented by:
Andrew R. Wolf, Esq.
THE WOLF LAW FIRM, LLC
1520 U.S. Highway 130, Suite 101
North Brunswick, NJ 08902
Telephone: (732) 545-7900
Facsimile: (732) 545-1030
E-mail: awolf@wolflawfirm.net
The Defendant is represented by:
F. Brenden Coller, Esq.
COZEN O'CONNOR
1900 Market Street
Philadelphia, PA 19103
Telephone: (215) 665-5518
E-mail: bcoller@cozen.com
BLIMPIE INTERNATIONAL: Faces Class Action Over "Junk Faxes"
-----------------------------------------------------------
Klein Moynihan Turco LLP on March 18 disclosed that on March 12,
2015, a class action lawsuit was filed against Blimpie
International, Inc. and other entities, alleging violations of the
Telephone Consumer Protection Act ("TCPA"). Specifically, the
complaint alleges that Blimpie violated the TCPA by sending
unsolicited "junk faxes" to businesses and individuals throughout
the country. The plaintiff seeks to certify a class of plaintiffs
composed of "[a]ny owner or lessee of a fax machine that was sent
one or more faxes in the last four years advertising Blimpie goods
or services."
TCPA Class Action Allegations against Blimpie
According to the complaint, a Blimpie franchisee used a fax
blasting company by the name of Faxertise, Inc. to send fax
advertisements promoting lunch specials "at the West New York
Blimpie." The complaint details that Faxertise advertised that it
can be hired to send between 500 and 800 client fax advertisements
per day, for a cost of $70 per week. The named plaintiff alleges
that between February 19, 2015 and March 12, 2015, he received
nine separate unsolicited Blimpie fax advertisements, containing
the Blimpie trademark and logo. The fax advertisements contained
opt-out notices with a telephone number registered to Faxertise.
The complaint seeks nationwide class certification, and
unspecified damages for both TCPA and state law conversion
violations.
Blimpie Protected by Taco Bell TCPA Decision?
Last year, the United States Court of Appeals for the Ninth
Circuit held that the franchisor Taco Bell Corp. cannot be held
liable for alleged TCPA violations by a franchisee. The Ninth
Circuit affirmed a dismissal of a TCPA class action against Taco
Bell because, among other reasons, the plaintiff did not "present
any evidence . . . demonstrating that Taco Bell [Corp.] controlled
the actions of [the franchisees] with respect to the campaign."
The class plaintiffs in the Blimpie action will face a similar
hurtle in their attempt to hold Blimpie vicariously liable for the
alleged junk fax campaign of a New Jersey State Blimpie
franchisee.
BLOOMBERG L.P.: Allowed to Contact Some Team Leaders in FLSA Suit
-----------------------------------------------------------------
Magistrate Judge Gabriel W. Gorenstein of the Southern District of
New York granted defendant's request in the case SHAVEZ JACKSON,
on behalf of herself, FLSA Collective Plaintiffs, and the Class,
Plaintiff, v. BLOOMBERG L.P., Defendant, NO. 13 CIV. 2001 (JPO)
(GWG) (S.D.N.Y.)
This lawsuit under the Fair Labor Standards Act (FLSA) and the New
York Labor Law has been certified as a class action with respect
to the New York claims and has been approved as a collective
action under the FLSA. The Rule 23 class was defined as: "Global
Customer Support (GCUS) Representatives working in New York who
worked more than 40 hours in a pay week without payment of
overtime at the rate of time and one-half at any time within the
six years preceding March 26, 2013."
Bloomberg seeks an order permitting it to contact 10 out of
approximately 482 class members in this case. Bloomberg makes this
application because these 10 individuals, who were direct
supervisors of GCUS representatives during the class period in a
job title called "team leader," are also class members themselves
based on their earlier jobs as GCUS representatives.
Plaintiffs opposed Bloomberg's request on the ground that it may
obtain the information it seeks from other individuals who are not
class members, such as Human Resources personnel, recruiters, opt-
outs, and non-employees.
Magistrate Judge Gorenstein granted defendant's request but only
as to seven out of ten employees. However, the Court placed
restrictions on this contact to minimize the potential that the
contacts could be perceived as coercive to the individual or
harmful to the class as a whole. First, any contact must not take
place until eight days after the date of the order so that
plaintiffs' counsel has an opportunity to contact the seven
employee-class members prior to any contact by Bloomberg. As for
Bloomberg's own contact, Bloomberg must make clear to each
employee class member, in writing, at least three business days in
advance of the first contact, that Bloomberg wishes to speak to
the employee only in his or her role as a team leader, trainer,
supervisor and/or manager in the GCUS department; that this
conversation and any similar future conversations are voluntary;
that there is a class action pending in federal court about wages
the employee may be due as a GCUS representative; that the
employee is represented by counsel with respect to his or her
employment as a GCUS representative; and that Bloomberg is not
seeking to have the employee opt out of the class. Bloomberg must
also affirmatively emphasize that the employee should not discuss
his or her experience as a GCUS representative, that the employee
should not discuss the lawsuit, and that the employee should not
reveal any discussions he or she may have had with class counsel.
A copy of Magistrate Judge Gorenstein's memorandum order dated
February 25, 2015, is available at http://is.gd/wyg9lk from
Leagle.com
Shavez Jackson, individually and on behalf of others similarly
situated, Plaintiff, represented by:
Dan Charles Getman, Esq.
LAW OFFICE OF DAN GETMAN
9 Paradies LN
New Paltz, NY 12561
Telephone: 845-255-9370
- and -
Lesley Anne Tse, Esq.
Manhattan Legal Services
90 John Street
New York, NY 10038
Telephone: 646-442-3100
Bloomberg L.P., Defendant, represented by Deirdre Norton Hykal --
dhykal@willkie.com -- at Willkie Farr & Gallagher LLP
BOSTON SCIENTIFIC: Sanford Heisler Files Gender Bias Class Action
-----------------------------------------------------------------
Sanford Heisler Kimpel LLP, a national public interest law firm,
on March 18 filed a $50 million nationwide class and collective
action against the Valencia, CA-based medical device manufacturer,
Boston Scientific Neuromodulation Corporation (BSNC), in U.S.
District Court for the Central District of California.
Felicia Medina, Sanford Heisler Kimpel's California Managing
Partner, and Xinying Valerian, Senior Litigation Counsel in the
firm's San Francisco office, represent Denise Fretter and
Maria Korsgaard, individually and on behalf of a class of
similarly situated female employees. Ms. Fretter is a Regional
Sales Manager at BSNC in Ohio, and Ms. Korsgaard was a Territory
Manager for the Company in Nevada.
"BSNC maintains an unfair system of gender-stratified
compensation," said Ms. Medina. "By assigning female sales
representatives to less profitable territories, higher quotas and
lower commission tiers, the company's upper management
artificially and discriminatorily caps their earning capabilities.
In effect, BSNC bars female employees from better and higher-
paying positions that have traditionally been held by male
employees. Its employment practices are illegal, morally wrong
and they must come to an end."
The Complaint details systemic violations of the Equal Pay Act,
Title VII of the Civil Rights Act and the Lilly Ledbetter Fair Pay
Act stemming from the company's treatment of the two plaintiffs
and class representatives who worked in its sales force hierarchy.
Boston Scientific Corporation acquired BSNC, formerly Advanced
Bionics, as a division in June 2007. The division specializes in
the sale of devices implanted in the human spine to treat chronic
pain. It has a national sales force of approximately 500
employees who are responsible for selling the devices and
educating patients and health care providers on their use.
According to the Complaint, BSNC routinely pays its female sales
representatives a lower base salary than its male sales
representatives and consistently offers female workers lower
starting or ongoing salaries and lower position assignments
compared to similarly situated male applicants. Even when female
sales representatives' sales performance is the same as or better
than that of males, male sales representatives are paid more.
The Complaint asserts upon information and belief that prior to
2013, BSNC rarely if ever assigned a female representative to the
company's highest commission tier; and that the company's
incentive reward structure of bonuses and stock options favors
male employees, as does its systems for career promotion and
advancement.
BSNC's decisions regarding sales representatives' territory
assignments, sales quotas, commission tiers and career promotion
and advancement opportunities -- all of which influence their
earning potential -- are made by the company's male-dominated
upper management team.
The March 18 Complaint describes how BSNC's work environment is
hostile to female employees, discourages them from complaining of
discrimination, and retaliates against those who do.
"Women at BSNC are warned that complaining about gender
discrimination is tantamount to committing 'career suicide,'" said
Ms. Valerian. "This has allowed the company to continue
discriminating for years, safe in the knowledge that its female
employees are unlikely to take action. Women who speak out
against disparate treatment despite this warning are punished.
When Ms. Fretter raised an allegation of gender discrimination,
the Company further reduced her territory and diminished her
ability to make sales."
Both Ms. Fretter and Ms. Korsgaard filed individual and class
charges of discrimination with the California Department of Fair
Employment and Housing and the U.S. Equal Employment Opportunity
Commission (EEOC) in November 2013. The EEOC issued right to sue
letters to both plaintiffs in December 2014.
The Complaint asks the court to certify the case as a class
action, with Ms. Fretter and Ms. Korsgaard as class
representatives, as well as designate it a collective action on
behalf of the proposed Equal Pay Act Collective Action ("EPA")
Plaintiffs, and to issue notice to potential EPA opt-ins, so these
women are notified of and can promptly join the class if they
wish.
The court is also asked to rule BSNC's employment policies,
practices and procedures that establish gender discrimination are
illegal and in violation of the rights of the Class
Representatives and Class members; to issue a permanent injunction
preventing the company from continuing to engage in these unlawful
practices; and to order BSNC to initiate and implement programs
that provide equal employment opportunities for female employees
and remedy the effects of its past and current gender
discrimination.
BSNC's implementation of training and other company practices to
promote gender parity, including establishing a task force on
equality and fairness to determine the effectiveness of the
requested changes is also requested.
In addition to an award of nominal, compensatory and punitive
damages to the Class representatives and Class members of more $50
million, the plaintiffs asked for back pay, front pay, lost
benefits, preferential rights to jobs, other damages for lost
compensation and job benefits with pre- and post-judgment interest
is requested and litigation costs and expenses. A jury trial is
requested.
In 2010, Sanford Heisler Kimpel successfully represented a class
of 5,600 female sales representatives of Novartis Pharmaceutical
Company in similar gender pay and promotion discrimination claims
in the largest U.S. gender discrimination case ever to go to
trial. A unanimous jury decision in the Southern District of New
York found the company liable and awarded 12 former Novartis sales
reps $3.36 million in compensatory damages and the class of 5,600
women an additional $250 million in punitive damages. The verdict
and the resulting monetary awards are the largest ever in the U.S
in an employment gender discrimination matter.
About Sanford Heisler Kimpel
Sanford Heisler Kimpel, LLP -- http://www.sanfordheisler.com-- is
a public interest class-action litigation law firm with offices in
New York, Washington, D.C., and San Francisco. The firm
specializes in civil rights and general public interest cases,
representing plaintiffs with employment discrimination, labor and
wage violations, predatory lending, whistleblower, consumer fraud,
and other claims.
BRIAD RESTAURANT: Nevada Judge Won't Certify Class in "Hanks"
-------------------------------------------------------------
Chief District Judge Gloria M. Navarro of the District of Nevada
ruled on the parties' motion in the case ERIN HANKS, et al.,
Plaintiffs, v. BRIAD RESTAURANT GROUP, L.L.C., Defendant, CASE NO.
2:14-CV-00786-GMN-PAL (D. Nev.)
Plaintiffs Erin Hanks, Deatra Enari, Jeffrey Anderson, Toby Earl,
Shyheem Smith, Robert Baker, James Skadowski, and Michelle
Pickthall are employees of the restaurant chain TGI Friday's, who
work at various locations throughout Nevada. Plaintiffs allege
that the action is a result of defendant Braid Restaurant Group,
LLC's failure to pay plaintiffs and other similarly-situated
employees who are members of the class the lawful minimum wage,
because defendant improperly claimed eligibility to compensate
employees at a reduced minimum wage rate under Nev. Const. art.
XV, Section 16. Plaintiffs filed an Amended Complaint, alleging
three claims for relief: (1) violation of Nev. Const. art. XV,
Section 16; (2) violation of Nev. Const. art. XV, Section 16 and
NAC 608.102; and (3) violation of Nev. Const. art. XV, Section 16
and NAC 608.104.
Defendant filed a motion to dismiss and a motion for leave to file
notice of new authority, while plaintiffs filed a motion for
partial summary judgment and a motion to certify a class.
Chief District Judge Navarro granted in part and denied in part
defendant's motion to dismiss and denied as moot defendant's
motion for leave to file notice of new authority. Plaintiffs'
motion for partial summary judgment and motion to certify class
are both denied.
A copy of Chief District Judge Navarro's order dated February 24,
2015, is available at http://is.gd/ML5mZS from Leagle.com
Plaintiffs, represented by Bradley Scott Schrager --
bschrager@wrslawyers.com -- Daniel Bravo -- dbravo@wrslawyers.com
-- Don Springmeyer -- dspringmeyer@wrslawyers.com -- at Wolf,
Rifkin, Shapiro, Schulman and Rabkin, LLP
Briad Restaurant Group, LLC, Defendant, represented by Kathryn
Blakey -- kblakey@littler.com -- Rick D Roskelley --
rroskelley@littler.com -- Roger L Grandgenett --
rgrandgenett@littler.com -- Montgomery Y Paek -- mpaek@littler.com
-- at Littler Mendelson, PC
BRITT REALTY: Bid for Class Action Certification Granted
--------------------------------------------------------
Justice Carolyn E. Demarest of the Supreme Court of Kings County
granted plaintiff's motion for class action certification in the
case ECD NY, INC., ON BEHALF OF ITSELF and ON BEHALF OF ALL
PERSONS ENTITLED TO SHARE IN THE FUNDS RECEIVED BY BRITT REALTY
LLC and NORTH 7-8 INVESTORS LLC IN CONNECTION WITH A PROJECT
IDENTIFIED AS 247-255 NORTH 7th STREET and 246-248 NORTH 8th
STREET, BROOKLYN, NEW YORK, Plaintiff, v. BRITT REALTY, LLC, NORTH
7-8 INVESTORS, LLC, BANK LEUMI USA, DAVID MAROM, OMRI SACHS, DVIR
COHEN HOSHEN, TOMER YOGEV, "JOHN DOE NO. 1" THROUGH "JOHN DOE NO.
10", defendants BEING FICTITIOUS and UNKNOWN TO plaintiff BUT
INTENDED TO BE THOSE PARTIES HAVING OR CLAIMING AN INTEREST IN OR
LIEN UPON THE IMPROVEMENT KNOWN AS 247-255 NORTH 7th STREET and
246-248 NORTH 8th STREET, BROOKLYN, NEW YORK, and "JANE DOE NO. 1"
THROUGH "JANE DOE NO. 10", DEFENDANTS BEING FICTITIOUS and UNKNOWN
TO PLAINTIFF BUT INTENDED TO BE PARTIES LIABLE FOR THE DIVERSION
OF TRUST FUNDS PURSUANT TO ARTICLE 3-A OF THE LIEN LAW,
Defendants, 504646/2014 (N.Y.)
North 7-8 Investors, LLC is the owner and developer of the project
located at North 7th Street and North 8th Street, in Brooklyn, New
York. Brit Realty, LLC is the general contractor and/or
construction manager, while Leumi USA is the construction lender
for the project.
Plaintiff ECD NY Inc. (ECD) entered into an agreement with North
7-8 and Britt in which ECD agreed to furnish excavation, sitework,
foundation, and structural concrete work for the project.
Plaintiff alleges that it performed all of its obligations
pursuant to the agreement and that North 7-8 and Britt have
breached the agreement by failing to pay ECD for all of the labor,
materials, and equipment furnished by ECD for the project.
Plaintiff moved for an order i) permitting its fourth and fifth
causes of action set forth in the complaint to be maintained as a
class action; ii) defining the class as "all beneficiaries of the
Lien Law Article 3-A trust funds received by Britt and North 7-8
in connection with the development project located at North 7th
Street and North 8th Street, in Brooklyn, New York; iii) directing
Britt and North 7-8 to provide a list of all Lien Law Article 3-A
trust beneficiaries to ECD; and iv) determining the method of
notice to the members of the class.
Plaintiff's fourth and fifth causes of action allege that the
defendants received funds in connection with the project for
labor, materials, and equipment furnished by contractors,
subcontractors, and suppliers, which constitute trust assets under
Article 3-A of the Lien Law, and that the defendants diverted
these trust assets. Plaintiff seeks an accounting of trust assets
and a judgment against North 7-8, Britt, and the individual
defendants that they are each a trustee of all trust assets
received in connection with the project, and that they are liable
to ECD and all other trust beneficiaries for all trust assets
received, together with punitive damages in the amount of $2
million.
Justice Demarest granted plaintiff's motion for class action
certification of its fourth and fifth causes of action. The class
is defined as all beneficiaries of the Lien Law Article 3-A trust
funds received by Britt Realty, LLC and North 7-8 Investors, LLC
in connection with the development project located at 247-255
North 7th Street and 246-248 North 8th Street, in Brooklyn, New
York. Following receipt of the verified statement required under
Lien Law Section 76, plaintiff is authorized to give notice of the
action to the individual class members by certified mail.
Defendants are directed to supply a verified statement of books
and records to the plaintiff, in conformity with the requirements
of Lien Law Sections 75 and 76.
A copy of Justice Demarest's order dated February 24, 2015, is
available at http://is.gd/H8YJaWfrom Leagle.com
Michael R. Wood, Esq. -- mwood@homlegal.com -- at Harrington Ocko
& Monk, Attorneys for Plaintiff
Ian Michael Forshner, Esq. -- ian.forshner@troutmansanders.com --
at Troutman Sanders, Attorney for Defendants
CASHCALL INC: Judge Allows Arbitration in "Kemph" Suit
------------------------------------------------------
District Judge Marvin E. Aspen of the Northern District of
Illinois, Eastern Division, granted defendants' motion to compel
arbitration in the case JENNAFER KEMPH, DAN DEHMLOW, and GLENN
ALLHOFF, for themselves and others similarly situated, Plaintiffs,
v. JOHN PAUL REDDAM, et al., Defendants, NO. 13 CV 6785 (N.D.
Ill.)
Jennafer Kemph, Dan Dehmlow and Glenn Allhoff are Illinois
residents. Plaintiffs each borrowed between $1,000 and $5,075 from
Western Sky Financial, Inc., a South Dakota law chartered
corporation, located on the Cheyenne River Sioux Tribe (CRST)
Reservation, and controlled by a CRST member, Martin A. Webb. The
agreements, which are form contracts, also purport to be subject
solely to the exclusive laws and jurisdiction of the Cheyenne
River Sioux Tribe, and provide that the Cheyenne River Sioux
Tribal Court has sole subject matter and personal jurisdiction
over the borrowers. At the same time, the contracts state that any
"Dispute" under the contract must be resolved through arbitration.
The agreements also contain a class action and class arbitration
waiver.
Cashcall, Inc., its subsidiaries WS Financial, LLC and WS Funding,
LLC, and its president and CEO John Paul Reddam, as well as
Delbert Services Corporation and four of its directors and
officers, Cesar Guzman, Sunshine Thayer, Greg Dalton, and Melissa
Dalton, are non-Illinois residents.
Plaintiffs alleged that Western Sky marketed and sold high-
interest loans to Illinois residents, including plaintiffs,
through their website, and television and radio advertising.
Cashcall, Funding, and Financial funded the loans entirely, and,
immediately after origination, Western Sky transferred them to
Financial or Funding. Cashcall and/or Delbert then serviced the
loans and collected payments.
In their complaint, plaintiffs allege that the loans are illegal
under Illinois' criminal and civil laws, and that the agreements
are unenforceable. Specifically, plaintiffs explain that an
Illinois unlicensed lender cannot issue loans with annual interest
rates higher than 9% under the Illinois Interest Act, 815 ILCS
205/4(1), and higher than 20% under the Illinois Criminal Code,
720 ILCS 5/17-59. Since Western Sky and defendants are not
licensed lenders under the Illinois Consumer Installment Loan Act
(CILA) and plaintiffs' loans well exceed 20% annual interest,
plaintiffs contend that the loans violate these state laws (Count
I) and the Federal Racketeer Influenced and Corrupt Organizations
Act (RICO) (Count IV). Further, they allege that because the loan
agreements violate Illinois law, they are null and void under CILA
(Count II). Finally, they claim that defendants' lending scheme
constitutes unfair and deceptive acts and practices under the
Illinois Consumer Fraud and Deceptive Business Practices Act (CFA)
(Count III).
Defendants seek to compel arbitration under both the Federal
Arbitration Act (FAA) and the terms of the plaintiffs' loan
agreements. In the alternative, they move to dismiss the case on
the basis of improper venue, lack of personal jurisdiction and
failure to state a claim.
Judge Aspen granted defendants' motion to compel arbitration and
denied defendants' motion to dismiss as moot. A copy of Judge
Aspen's memorandum opinion and order dated March 27, 2015, is
available at http://is.gd/oiSbS1from Leagle.com
Plaintiffs, represented by:
Daniel A. Edelman, Esq.
Cathleen M. Combs, Esq.
James O. Latturner, Esq.
Thomas Everett Soule, Esq.
EDELMAN, COMBS, LATTURNER & GOODWIN LLC
20 South Clark Street, Suite 1500
Chicago, IL 60603
Telephone: 312-739-4200
Facsimile: 312-419-0379
Defendants, represented by Michael Timothy Brody --
mbrody@jenner.com -- Barry Levenstam -- blevenstam@jenner.com --
Daniel Thomas Fenske -- dfenske@jenner.com -- at Jenner & Block
LLP
CERTIFIED CREDIT: Accused of Violating Fair Debt Collection Act
---------------------------------------------------------------
Kevin Brittain, on behalf of him and all others similarly situated
v. Certified Credit & Collection Bureau and John Does 1-25, Case
No. 3:15-cv-02353-FLW-TJB (D.N.J., April 2, 2015) accuses the
Defendants of violating the Fair Debt Collection Practices Act.
The Plaintiff is represented by:
Ari Hillel Marcus, Esq.
MARCUS LAW LLC
1500 Allaire Avenue, Suite 101
Ocean, NJ 07712
Telephone: (732) 660-8169
E-mail: ari@marcuslawyer.com
CHINA BILINGUAL: Shareholders Sue Over Securities Act Violations
----------------------------------------------------------------
Jinde Yang and John Ballard v. China Bilingual Technology and
Education Group, Inc., Ren Zhiqing, Pan Mingxiao, Ren Zudong, Jun
Zhang, Ying Fengmei and Does 1 through 30, inclusive, Case No.
3:15-cv-01517 (N.D. Cal., April 2, 2015) alleges violations of the
Securities Exchange Act of 1934.
In their scheme to deprive the Plaintiffs and other public
shareholders of the value of their shares, the Defendants
concealed their intention to cease filing reports with the
Securities and Exchange Commission and to forfeit China
Bilingual's corporate charter, and appropriate the assets of China
Bilingual to themselves, according to the complaint.
China Bilingual is a Nevada corporation. The Individual
Defendants are directors and officers of the Company.
The Plaintiffs are represented by:
Jehu Hand, Esq.
HAND & HAND
34145 Pacific Coast Highway, #379
Dana Point, CA 92629
Telephone: (949) 489-2400
Facsimile: (949) 489-0034
E-mail: jehu@jehu.com
CHINA NATIONAL: "Amorin" Suit Consolidated in Chinese Drywall MDL
-----------------------------------------------------------------
The class action lawsuit captioned Amorin, et al. v. China
National Building Materials Import and Export Corporation, et al.,
Case No. 3:15-cv-00184, was transferred from the U.S. District
Court for the District of Oregon to the U. S. District Court for
the Eastern District of Louisiana (New Orleans). The Louisiana
District Court Clerk assigned Case No. 2:15-cv-00455-EEF-JCW to
the proceeding.
The case is consolidated in the multidistrict litigation known as
In re: Chinese-Manufactured Drywall Products Liability Litigation,
MDL No. 2:09-md-02047-EEF-JCW.
The lawsuit is brought on behalf of similarly situated owners and
residents of real property containing alleged defective Chinese
manufactured drywall that was designed, manufactured, imported,
exported, distributed, delivered, supplied, inspected, marketed,
sold or installed by the Defendants.
The Plaintiffs are represented by:
Russ M. Herman, Esq.
HERMAN, HERMAN & KATZ, LLC
820 O'Keefe Avenue
New Orleans, LA 70113
Telephone: (504) 581-4892
E-mail: rherman@hhklawfirm.com
- and -
Arnold Levin, Esq.
Fred S. Longer, Esq.
LEVIN, FISHBEIN, SEDRAN & BERMAN
510 Walnut St., Suite 500
Philadelphia, PA 19106
Telephone: (215) 592-1500
Facsimile: (215) 592-4663
E-mail: alevin@lfsblaw.com
flonger@lfsblaw.com
- and -
Daniel H. Skerritt, Esq.
TONKON TORP LLP
1600 Pioneer Tower, Suite 1600
888 SW Fifth Avenue
Portland, OR 97204-2099
Telephone: (503) 802-2024
Facsimile: (503) 972-3724
E-mail: dan.skerritt@tonkon.com
COLUMBIA PIPELINE: Antioch Residents Mull Pipeline Class Action
---------------------------------------------------------------
Nick Caloway, writing for WKRN, reports that underground pipelines
have some Antioch residents considering legal action.
The natural gas pipelines, operated by Columbia Pipeline Group
(CPG), run through the Harbor Landing area. Residents have added
landscaping and built fences, trees, and even pools on their
properties, which happen to sit within the pipeline's right of
way.
Those residents have received a letter from CPG saying the company
would need access to the pipelines for maintenance. The letter
said the "Right-of-Way Agreement" prohibits the erection,
construction or placement of any building, fixture, tree, fence
not in compliance with Columbia's guidelines. The letter asked
homeowners to clear the right of way before April 6, 2015, adding
that the company would be willing to clear the area, but would not
be responsible for any damage to those items.
Many residents say they were given permission by CPG to erect some
fencing, building and landscaping, even within the easement area.
Scott Mitchell is rallying some neighbors together to consider a
class action lawsuit or other legal action to stop CPG from
clearing the area.
"They don't pay my mortgage. They don't pay my property taxes,"
said Mr. Mitchell. "But they can tell me what I can and cannot
have on my property."
Mr. Mitchell, who has fencing, landscaping and a shed within the
easement area, said he doesn't mind allowing access to the
pipelines. But he doesn't want CPG to destroy his property in the
process.
"As long as they put everything back the way they found it, as
long as they re-sod our land, as long as they put the sheds back
after they're done, as long as they put the fences back up the way
they found them, we're okay with that," he told News 2.
Columbia Pipeline Group sent the following statement to News 2
regarding the right of way issue:
"Columbia Pipeline Group is performing work consistent to our
Right of Way agreements with landowners. Residents who live
adjacent to CPG facility Rights of Way receive an annual mailing
with general guidelines for safety near natural gas pipelines.
This includes information as to what can be constructed on or near
a right of way, activities that can take place on a right of way,
etc. A sample of this brochure is attached for your reference.
During recent survey and maintenance work, CPG representatives
identified several encroachments on its Right of Way in Antioch,
Tenn. Residents were recently notified of these encroachments.
We take these situations very seriously as they are federally
mandated and pose potential risks to pipeline integrity and public
safety. We are committed to answering community members'
questions and working on acceptable resolutions. While we can't
get into specific claims on this project, I can tell you that we
try to accommodate certain landowner requests along Right of Way,
with the understanding that structures will be moved, or removed,
due to needs to maintain our facilities and for public safety."
COMMUNITY HEALTH: Sued for Violating Fair Credit Reporting Act
--------------------------------------------------------------
Mary Frances Jones, individually and on behalf of all others
similarly situated v. Community Health Systems, Inc., Community
Health Systems Professional Services Corporation and Triad of
Alabama, LLC, Case No. 1:15-cv-00201-TFM (M.D. Ala., March 27,
2015) alleges violations of the Fair Credit Reporting Act.
The Plaintiff is represented by:
James Michael Terrell, Esq.
Robert Gordon Methvin, Jr., Esq.
MCCALLUM METHVIN & TERRELL PC
2201 Arlington Avenue South
Birmingham, AL 35205
Telephone: (205) 939-0199
Facsimile: (205) 939-0399
E-mail: jterrell@mmlaw.net
rgm@mmlaw.net
COOK COUNTY: Appellate Court Affirmed Order in "Black" Suit
-----------------------------------------------------------
Presiding Justice Thomas E. Hoffman of the Appellate Court of
Illinois, First District, Sixth Division, affirmed the trial
court's order in the appealed case entitled JAMES BLACK,
Plaintiff-Appellant, v. TOM DART (COOK COUNTY SHERIFF), Defendant-
Appellee, NO. 1-14-0402 (Ill. App. Ct.)
James Black was arrested in April 2012 and was placed in Division
3 of the Count County Department of Corrections (DOC), from April
15, 2012 until April 21, 2012, at which point he was transferred
to DOC Division 5, where he remained until his release on May 1,
2012.
Plaintiff brought a pro se lawsuit against the defendant, Tom
Dart, Sheriff of Cook County, for damages resulting from the
alleged mistreatment while confined at the Count County Department
of Corrections. He alleged that during the time he was held in
Division 3, he was unable to take a daily shower, use the
telephone or purchase personal items from the commissary. He
further alleged that, upon his release, the DOC failed to return
his clothing to him.
The Sheriff asserted that his conduct was at all times reasonable
and not in violation of the plaintiff's constitutional rights and
also that the Sheriff was immune from suit under various sections
of the Local Governmental and Governmental Employee's Tort
Immunity Act. The Sheriff filed a motion for judgment on the
pleadings and also for involuntary dismissal.
The trial court granted summary judgment in favor of the Sheriff
under section 2-1005 of the Code of Civil Procedure (Code) (735
ILCS 5/2-1005 (West 2010)). The plaintiff made an appeals
contending that the court erred by rejecting undisputed evidence
that he had opted out of a pending federal class action suit based
upon the same subject matter and entertaining a motion for
involuntary dismissal under section 2-619(a)(3) of the Code (735
ILCS 5/2-619(a)(3) (West 2012)) which was filed after the time for
pleading had passed.
Presiding Justice Hoffman affirmed the trial court's order. A
copy of Presiding Justice Hoffman's opinion dated February 20,
2015, is available at http://is.gd/6dUIwbfrom Leagle.com.
The panel for the Appellate Court of Illinois, First District,
Sixth Division consists of Presiding Justice Thomas E. Hoffman and
Justices Shelvin Louise Marie Hall and Mary K. Rochford.
COXCOM INC: "Baker" Suit Returns to Sedgwick County Court
---------------------------------------------------------
District Judge Carlos Murguia of the District of Kansas granted
plaintiffs' motion to remand in the case DENNIS BAKER and LYNN
TALBOTT, on behalf of themselves and all others similarly
situated, Plaintiffs, v. COXCOM, INC., et al., Defendants, CASE
NO. 14-1324 (D. Kan.)
Plaintiffs filed a class action suit in the District Court of
Sedgwick County, Kansas, seeking a declaration that defendants
Coxcom, Inc., Coxcom, LLC, and Time Warner Entertainment-
Advance/Newhouse Partnership d/b/a/Time Warner Cable are liable
for wages plaintiffs' claim their former employer, Mill-Tel, Inc.
was required to pay them.
Defendants are cable companies who contracted their cable
television installation work to Mill-Tel, who in turn employed
plaintiffs to perform the work. Plaintiffs contend that Mill-Tel
wrongfully withheld compensation from them. Plaintiffs seek to
hold the defendant cable companies liable under Kan. Stat. Ann.
Section 44-317 for those wages Mill-Tel allegedly wrongfully
withheld.
Defendants removed the action to the federal district court.
Defendants argued that plaintiffs' right to recovery of
compensation from Mill-Tel or, derivatively, from defendants, if
any, turns on substantial questions of federal law under the Fair
Labor Standards Act (FLSA), 29 U.S.C. Sections 201-219. Plaintiffs
filed a motion to remand.
Judge Murguia granted plaintiffs' motion to remand and returned
the case to the District Court of Sedgwick County, Kansas.
A copy of Judge Murguia's memorandum and order dated February 20,
2015, is available at http://is.gd/04qB8W- from Leagle.com.
Plaintiff, represented by:
Donald N. Peterson, II
Sean M. McGivern
Withers, Gough, Pike, Pfaff & Peterson LLC
200 West Douglas, Suite 1010
Wichita, KS 67202
Telephone: 316-267-1562
Facsimile: 316-303-1018
Defendants, represented by Nathan D. Chapman --
nchapman@wargofrench.com -- at Wargo & French, LLP; Mark A. Kanaga
-- mark.kanaga@kutakrock.com -- at Kutak Rock LLP
CREDIT CONTROL: Accused of Violating Fair Debt Collection Act
-------------------------------------------------------------
Sarah Mendelsohn, on behalf of herself and all other similarly
situated consumers v. Credit Control Services, Inc. d/b/a Credit
Collection Services, Case No. 1:15-cv-01717 (E.D.N.Y., March 31,
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
CTBC BANK: Appeals Court Upholds Order Denying Arbitration Bid
--------------------------------------------------------------
Justice Laurie D. Zelon of the Court of Appeals of California,
Second District, Division Seven, affirmed the trial court's order
in the case KATHY PARK, Plaintiff and Respondent, v. CTBC BANK
CORP., Defendant and Appellant, NO. B255809 (Cal. Ct. App.)
Kathy Park received a job offer letter from the defendant CTBC
Bank Corp. in 2010, setting forth the proposed terms and
conditions of her employment. Among the information included in
the letter was an arbitration agreement.
On October 28, 2013, Park filed a complaint against CTBC for
racial discrimination in violation of the Fair Employment and
Housing Act (Gov. Code, Sections 12940); retaliation for refusal
to participate in illegal conduct (Labor Code, Section 1102.5,
subd. (c)); wrongful termination; failure to pay wages upon
termination (Labor Code, Sections 201, 203, 227.3); forcing an
employee to agree to an illegal condition of employment (Labor
Code, Section 432.5); and unfair business practices (Bus. & Prof.
Code, Section 17200). The complaint also alleged a representative
action under PAGA seeking to collect penalties on behalf of other
current and former 'aggrieved employees' who were employed by CTBC
and against whom one or more of the Labor Code violations alleged
in the foregoing causes of action was committed.
The complaint included allegations asserting that the arbitration
provisions Park had agreed to as a condition of her employment
were unenforceable under the doctrine of unconscionability. The
complaint asserted the agreement was procedurally unconscionable
because it had been presented as a non-negotiable condition of
employment and because CTBC never provided a copy of the AAA rules
that were to govern the arbitration.
CTBC filed a petition to compel arbitration arguing that all of
Park's claims were subject to mandatory arbitration under an
agreement she had signed as a condition of her employment. The
trial court denied the petition, concluding that the arbitration
agreement was unconscionable because it lacked mutuality. CTBC
appealed.
Justice Zelon affirmed the trial court's order denying CTBC's
motion to compel arbitration. A copy of Justice Zelon's
unpublished opinion dated February 25, 2015, is available at
http://is.gd/W1pf6F from Leagle.com
Bononi Law Group, William S. Waldo and Rafael N. Tumanyan for
Plaintiff and Respondent
Blank Rome, Mike B. Margolis, Howard M. Knee and Caroline P.
Donelan for Defendant and Appellant
The Appeals Court panel consists of Presiding Justice Dennis M.
Perluss and Justices Laurie D. Zelon and Feuer
DEN-MAT HOLDINGS: Alan Laub Suit Transferred From Conn. to Calif.
-----------------------------------------------------------------
The class action lawsuit styled Alan L. Laub, DDS, Inc. v. Den-Mat
Holdings, LLC, Case No. 3:15-mc-00019, was transferred from the
U.S. District Court for the District of Connecticut to the U.S.
District Court for the Central District of California (Western
Division - Los Angeles). The District Court Clerk assigned Case
No. 2:15-mc-00107-CBM-JC to the proceeding.
The Plaintiff is represented by:
Ryan M. Kelly, Esq.
ANDERSON AND WANCA
3701 Algonquin Road, Suite 760
Rolling Meadows, IL 60008
Telephone: (847) 368-1500
Facsimile: (846) 368-1500
E-mail: rkelly@andersonwanca.com
- and -
Aytan Y. Bellin, Esq.
BELLIN AND ASSOCIATES LLC
85 Miles Avenue
White Plains, NY 10606
Telephone: (914) 358-5345
Facsimile: (212) 571-0284
E-mail: aytan.bellin@bellinlaw.com
Movant Quick Link Information Services LLC is represented by:
Adam Michael Swanson, Esq.
BLANK ROME LLP
405 Lexington Ave.
New York, NY 10174-0208
Telephone: (212) 885-5568
Facsimile: (917) 332-3744
E-mail: aswanson@blankrome.com
Defendant Den-Mat Holdings, LLC is represented by:
Harrison Maxwell Brown, Esq.
BLANK ROME LLP
2029 Century Park East, 6th Floor
Los Angeles, CA 90067
Telephone: (424) 239-3400
Facsimile: (424) 239-3434
E-mail: hbrown@blankrome.com
- and -
Adam Michael Swanson, Esq.
BLANK ROME LLP
405 Lexington Avenue
New York, NY 10174-0208
Telephone: (212) 885-5568
Facsimile: (917) 332-3744
E-mail: aswanson@blankrome.com
DETROIT MEDICAL: Nurses Seek Trial Date in Wage Collusion Suit
--------------------------------------------------------------
Chad Halcom, writing for Crain's Detroit Business, reports that
Detroit Medical Center could go to trial this fall in a class
action lawsuit on behalf of metro Detroit hospital nurses over
alleged wage collusion after the hospital lost an appeals court
request in the court case.
Attorneys for more than 20,000 nurses plan to ask Chief U.S.
District Judge Gerald Rosen in Detroit at a status conference to
set a trial date in the nearly 9-year-old lawsuit. But the DMC,
which lost in its bid to appeal the certification of class action
status in February, has already asked the full court at the 6th
Circuit U.S. Court of Appeals in Cincinnati to rehear its request.
The nurses will also seek an order at the status conference to
distribute about $48 million in settlement funds from seven other
local hospital systems who already resolved their portions of the
case. That's according to partner Mark Griffin of Keller Rohrback
LLP in Washington, D.C., who relayed the status conference
information to Crain's in response to an email query.
The DMC brought a request about a year ago to the Cincinnati court
to appeal a Rosen order from 2013 certifying a class action. But
a three-judge panel on Feb. 3 found DMC had not proven Rosen
abused his discretion in making that ruling, and denied the
hospital's request.
The nurses' attorneys, meanwhile, want a trial date this fall, but
the DMC in a response to that request said it wants to wait and
discuss scheduling at the March 17 status conference.
A class of more than 20,000 registered nurses who provided direct
patient care in Detroit-area acute care hospitals between December
2002 and late 2006, alleges in the 2006 lawsuit that eight
regional hospital systems colluded to keep pay scales for RNs
artificially lower than market forces would provide for.
All but one of those hospitals, the DMC, has settled the suit for
a combined $48 million. That's really a net settlement of about
$31.5 million after deducting various attorney fees, incentive
awards, costs to send formal settlement notices and other
expenses.
Judge Rosen in October 2013 approved a settlement for Royal Oak-
based Beaumont Health, Detroit-based Henry Ford Health System, the
former Mt. Clemens General Hospital (now a part of McLaren Health
Corp.) and Livonia-based Trinity Health to settle for just under
$27 million. Other previous hospital settlements in the case date
back to 2009.
But the settling hospitals have since paid money into an interest-
bearing account, while the litigation continues against DMC as the
sole remaining defendant. So far, none of the funds have been
distributed to the nurses.
The DMC told the court it does not oppose a notice being issued to
inform nurses of the class action status and allowing them to opt
out of the case, if they want to sue DMC on their own or drop the
matter. But the hospital's attorneys on Feb. 17 also asked the
entire bench of judges at the 6th Circuit to rehear its challenge
to Rosen's certification ruling, and that request remains pending.
DIRECTORY DISTRIBUTING: Non-Texas Opt-Ins Dismissed From Suit
-------------------------------------------------------------
Chief Justice Kem Frost of the Court of Appeals of Texas,
Fourteenth District, Houston, affirmed the trial court's dismissal
in the case GARY AARONII, ET AL., Appellants, v. DIRECTORY
DISTRIBUTING ASSOCIATES, INC., RICHARD PRICE, STEVE WASHINGTON,
LAURA WASHINGTON, ROLAND E. SCHMIDT, SANDY SANDERS, AND AT&T
CORPORATION, Appellees, NO. 14-13-00784-CV (Tex. App.)
Various Harris County residents who delivered AT&T telephone
directories asserted claims in the trial court below against
Directory Distributing Associates, Inc., AT&T Corporation, and
five natural persons. Plaintiffs alleged that Directory
Distributing Associates, Inc. engaged in a pattern and practice of
classifying individuals as independent contractors, when the
individuals actually were employees of Directory Distributing
Associates, Inc., to avoid paying the individuals the minimum wage
and overtime wages to which they were entitled under the Act.
Plaintiffs made allegations seeking to invoke the collective
action procedure under the Act. See 29 U.S.C. Section 216(b).
The trial court conditionally certified a collective action and
ordered that notice be sent to all current and former individuals
hired by Directory Distributing Associates, Inc. during the period
from June 25, 2009, to November 26, 2012, who were classified as
independent contractors and hired to deliver telephone
directories. This notice allowed these individuals an opportunity
to "opt in" to the collective action by filing written consents.
Thousands of individuals, from at least 38 states, availed
themselves of this opportunity and filed written notices of
consent to participate as plaintiffs in the collective action,
thus opting in.
The defendants filed a motion to dismiss all Opt-In Plaintiffs who
are not Texas residents and who did not deliver telephone
directories in Texas. The defendants asserted that no Texas county
is a county of proper venue for the claims of any of these
plaintiffs and that, under section 15.003 of the Texas Civil
Practice and Remedies Code, entitled "Multiple Plaintiffs and
Intervening Plaintiffs," each of the Non-Texas Opt-In Plaintiffs
independently must establish proper venue.
The Non-Texas Opt-In Plaintiffs asserted that the collective-
action procedure under the Act preempts section 15.003 of the
Texas Civil Practice and Remedies Code. The trial court granted
the motion to dismiss, and dismissed all of the Non-Texas Opt-In
Plaintiffs without prejudice to the refiling of these claims in a
court of proper venue that has subject-matter jurisdiction over
the claims. The Non-Texas Opt-In Plaintiffs challenged the
dismissal.
Chief Justice Frost overruled the Non-Texas Opt-In Plaintiffs'
sole appellate issue and affirmed the trial court's order granting
the Defendants' motion to dismiss under section 15.003(a).
A copy of Chief Justice Frost's opinion dated February 26, 2015,
is available at http://is.gd/QdRLjt from Leagle.com
The Court of Appeals of Texas, Fourteenth District, Houston panel
consists of Chief Justice Kem Thompson Frost and Justices Martha
Hill Jamison and Ken Wise.
E-TRADE SECURITIES: Judge Tosses Suit Over Unexercised Options
--------------------------------------------------------------
Daniel Siegal and Kurt Orzeck, writing for Law360, report that a
California state judge on March 18 tossed a putative class action
alleging E-Trade Securities LLC falsely tells customers it will
automatically exercise in-the-money options on securities, ruling
the company's customer agreement contains a waiver barring the
claims.
E-Trade customer John Scranton contended that the stock trading
company advertised to customers that it would automatically
exercise their options if they would result in at least 1 cent in
profit from each option but that the company does not do so when
trading is suspended on the underlying securities, costing
customers their original investment plus the profit they could
have made.
Santa Clara Superior Court Judge Peter H. Kirwan, who heard
arguments March 6, entered an order on March 18 sustaining the
demurrer to Scranton's third amended complaint, ruling that a
disclaimer of liability in a customer agreement Scranton entered
into bars the plaintiffs' breach of fiduciary duty claim and
dismissing the suit.
"Plaintiff contends that ambiguities in the contract should be
construed against defendant," Judge Kirwan wrote. "The disclaimer
in the customer agreement, however, is not ambiguous."
E-Trade attorney Joseph Floren -- jfloren@morganlewis.com -- of
Morgan Lewis & Bockius LLP told Law360, "We're very pleased that
the court agreed with our position that the case is without
merit."
Leonard Aragon -- leonard@hbsslaw.com -- of Hagens Berman Sobol
Shapiro LLP, representing Mr. Scranton, told Law360 that the
plaintiffs "respectfully disagree with the trial court's decision
and will be filing an appeal."
Mr. Scranton filed suit in April in California state court. He
alleged that the company misrepresented through its website that
it would always automatically exercise options that were in-the-
money by $0.01 or more on expiration date.
But E-Trade doesn't tell customers that when trading is suspended
on the underlying securities, it requires customers to call the
company and expressly request that the option be exercised,
Scranton claimed. He said the company allowed their options to
expire without being exercised, depriving them of their investment
and potential profits.
The putative class action alleged violations of California state
laws as well as fraud, misrepresentation, negligent
misrepresentation and breach of fiduciary duty.
Judge Kirwan dismissed the fraud and misrepresentation claims in
October 2014 but granted leave to amend on the breach of fiduciary
duty claim.
On March 18, Judge Kirwan said that the disclaimer states E-Trade
will not bear liability for losses stemming from causes out of its
control, including suspension of trading, and rejected Scranton's
argument that this should not apply to his case.
"Plaintiff argues that the disclaimer in the customer agreement
should be restricted to an immediate cause of loss, and not
applied to a 'but-for' cause of loss, but there is nothing in the
customer agreement that indicates it should be restricted in such
a manner," he wrote.
The plaintiffs are represented by Stuart Paynter --
stuart@paynterlawfirm.com -- and Celeste Boyd --
cboyd@paynterlawfirm.com -- of the Paynter Law Firm and Leonard
Aragon, Robert Carey, and Shana Scarlett -- shanas@hbsslaw.com --
of Hagens Berman Sobol Shapiro LLP.
E-Trade is represented by Joseph Floren, Benjamin Smith and
Christina Ashba -- cashba@morganlewis.com -- of Morgan Lewis &
Bockius LLP.
The suit is John C. Scranton v. E-Trade Financial Corp. et al.,
case number 1:13-cv-245579, in the Superior Court of California,
County of Santa Clara.
EAST BINGER: "Stephenson" Royalty Suit Removed to W.D. Oklahoma
---------------------------------------------------------------
Defendant ConocoPhillips Company removed the class action lawsuit
styled Stephenson, et al. v. East Binger (Marchand) Unit, et al.,
Case No. CJ-2015-21, from the District Court of Caddo County,
state of Oklahoma, to the U.S. District Court for the Western
District of Oklahoma (Oklahoma City). The Western District Court
Clerk assigned Case No. 5:15-cv-00341-W to the proceeding.
The Plaintiffs purport to represent a putative class comprised of
royalty owners having royalty interests in the East Binger
(Marchand) Unit. The Plaintiffs allege that ConocoPhillips and
other Defendants failed to properly pay royalty owed to putative
class members.
The Plaintiffs are represented by:
G. Pat O'Hara, Esq.
Patrick O'Hara, Jr., Esq.
TISDAL & O'HARA
3847 S Boulevard, Suite 300
Edmond, OK 73013
Telephone: (405) 471-5226
Facsimile: (405) 705-2573
E-mail: gpohara@tisdalohara.com
pohara@tisdalohara.com
- and -
James M. Tisdal, Esq.
TISDAL LAW FIRM
P O Box 1387
814 Frisco Ave.
Clinton, OK 73601
Telephone: (580) 323-3964
Facsimile: (580) 323-3674
E-mail: marttisdal@cableone.net
- and -
William J. Hartwig, Esq.
HELMS & UNDERWOOD
One NE Second St., Suite 202
Oklahoma City, OK 73104
Telephone: (405) 319-0700
Facsimile: (405) 319-9292
E-mail: jhartwig@helmsunderwood.com
Defendant ConocoPhillips Company f/k/a Phillips Petroleum Company
is represented by:
Tammy D. Barrett, Esq.
Bradley Ward Welsh, Esq.
Terry D. Ragsdale, Esq.
GABLE & GOTWALS
100 W 5th St., Suite 1100
Tulsa, OK 74103-4217
Telephone: (918) 595-4851
Facsimile: (918) 595-4990
E-mail: tbarrett@gablelaw.com
bwelsh@gablelaw.com
tragsdale@gablelaw.com
Defendant Phillips 66 Company is represented by:
Mark D. Christiansen, Esq.
MCAFEE & TAFT
211 N Robinson Ave., 10th Floor
Oklahoma City, OK 73102
Telephone: (405) 552-2235
Facsimile: (405) 228-7435
E-mail: mark.christiansen@mcafeetaft.com
EDEN MEMORIAL: Faces Second Suit Over Mishandled Burial Vaults
--------------------------------------------------------------
Aron Chilewich, writing for Jewish Journal, reports that Jewish
cemetery Eden Memorial Park in Mission Hills is facing a new,
multimillion-dollar lawsuit related to allegations that it
mishandled burial vaults, threw disrupted human remains into a
pile on cemetery grounds and concealed potentially damaging
information from its existing and potential customers.
A civil suit filed Feb. 19 in Los Angeles Superior Court on behalf
of more than 50 people accuses Eden and its parent company,
Service Corporation International (SCI), of inflicting emotional
distress, negligence, interfering with dead bodies and violating
the rights of families over their deceased relatives.
This new suit comes just a year after SCI agreed to pay about $80
million to settle a 25,000-person class action lawsuit alleging
similar grievances. Many of the plaintiffs in this most recent
lawsuit were not eligible to participate in the original class
action suit, which only covered people affected between February
1985 and September 2009. Gary Praglin -- gpraglin@elllaw.com --
an attorney with Engstrom, Lipscomb & Lack, the firm representing
the plaintiffs, explained that this second suit includes
plaintiffs affected both before and after that time frame, as well
as people affected during those years who opted out of the class
action.
Steven H. Gurnee, a lawyer for SCI, said he believes those
plaintiffs whose complaints fall within the time period of the
previous class action suit are subject to that settlement, and
that their claims will be barred from this second suit. If that
were to occur, only 13 plaintiffs would remain in the current
case, he said.
The most recent suit claims that plots at Eden are so close
together that groundskeepers have difficulty digging new graves
without damaging the protective vaults of the graves on either
side. The suit alleges that the cemetery purposely plotted graves
1.5 to 3 inches apart to maximize profits.
Although not commenting on the Eden case in particular,
Russ Heimerich, a spokesperson for California's Department of
Consumer Affairs, told the Journal that some overlap is natural.
"You may find a vault or a coffin where you were digging that
shouldn't be there. A lot of times -- in California, anyway --
that is the result of seismic activity. When there are
earthquakes, things tend to shift around a little bit. We've seen
that at other places," Mr. Heimerich said.
When this occurs, cemeteries often will move the shifted grave
back to its intended location, he said, though Mr. Heimerich
admitted he is not knowledgeable on current best business
practices. The suit goes further, however.
"Even more shocking, current and former groundskeepers at the
cemetery have admitted that breaking burial vaults will often
cause human remains to spill out of the broken vaults," notes the
complaint, citing sworn testimony from cemetery employees. "In
such situations, the groundskeepers were instructed by their
supervisors to throw away the bones and other remains in the
cemetery dump located on the cemetery premises. According to the
evidence, this has occurred on likely thousands of occasions."
Gurnee denied that any such thing has occurred.
"There is no merit to these claims," he told the Journal. "There
has never been evidence discovered that people were thrown out in
bone piles, and there has never been evidence that people were
instructed to break vaults. Not one misplaced bone has been
found. There were two former disgruntled employees, and we think
they have been discredited."
The suit further alleges that family members who purchased plots
in the cemetery after the time SCI became aware of the negligent
burial practices were not informed of the potential for harm.
"Defendants further instructed the groundskeepers and their
supervisors not to tell anyone outside of the cemetery about these
problems, and threatened retaliation if they did so," asserts the
complaint.
Jean Bergman, a resident of Los Angeles County and one of the
plaintiffs, claims in the suit that she and her husband -- he was
buried in the cemetery in 2011 -- were not informed of the risks
prior to purchasing plots for themselves in 1990.
"[Bergman's husband] is buried in a section of the cemetery where
there have been a number of broken and damaged protective vaults
as well as disturbances of graves, all of which have scarred and
tainted the hallowed ground upon which the Plaintiff's loved one
has been buried since burial, and where the Plaintiff similarly
intended to be buried," the complaint states. "Ms. Bergman and
her husband would never have purchased property, funeral services
and burial services from Defendants had this information been
disclosed."
Eden has an active cemetery license and has never been subject to
disciplinary action, Mr. Heimerich said. The cemetery received a
citation in 2002 for failing to submit a legal document on time,
but that was not operational and is not uncommon in the industry,
he explained.
EDWARD T WEBER: Sued Over Violations of Fair Debt Collection Act
----------------------------------------------------------------
Robert Teegarden, Individually and on Behalf of All Others
Similarly Situated v. Law Offices of Edward T. Weber and Edward T.
Weber, Case No. 3:15-cv-00721-AJB-JLB (S.D. Cal., April 2, 2015)
is brought over alleged violations of the Fair Debt Collection
Practices Act.
The Plaintiff is represented by:
Christopher R. Dryden, Esq.
GLOBAL LEGAL RESOURCES, LLP
5411 Avenida Encinas, Suite 280
Carlsbad, CA 92008
Telephone: (888) 846-8901
Facsimile: (888) 846-8902
E-mail: cdryden@glrlegal.com
ELECTRONIC MERCHANT: CallFire Exempt from Liability under TCPA
--------------------------------------------------------------
District Judge John C. Coughenour of the Western District of
Washington, Seattle, ruled on the parties' motions in the case
RINKY DINK, INC., et al., Plaintiffs, v. ELECTRONIC MERCHANT
SYSTEMS, et al. Defendants, CASE NO. C13-1347-JCC (W.D. Wash.)
Jeffrey Gehrs is the president, founder and owner of Electronic
Merchant System (EMS), a company that identifies merchants who
want to enter into agreements with banks to handle the processing
and managing of the merchant's retail credit card transactions.
CallFire is a company that provides an online platform for voice
and text connectivity to thousands of customers who design calling
or texting campaigns through its website.
EMS chose to use CallFire's services to promote its business. EMS
created campaigns with CallFire by selecting a group of phone
numbers to be called, scheduled call times, as well as beginning
and ending dates for the campaign.
Plaintiffs Rinky Dink, Inc. and Frank Knott brought a proposed
class action suit against EMS, CallFire, Inc. and Gehrs, for
alleged telemarketing. Plaintiffs sue on their own behalf and as
class representatives for others similarly situated. Both
plaintiffs allege that, by using an Automatic Dialing and
Announcing Device (ADAD), defendants violated the Washington
Automatic Dialing and Announcing Device ("WADAD") statute, RCW
80.36.400, and -- by extension -- the Washington Consumer
Protection Act (WCPA), RCW 19.86 et seq. Plaintiff Knott alleges
that defendants violated the Telephone Consumer Protection Act
("TCPA"), 47 U.S.C. Sec. 227(b)(1)(A), by calling his cell phone.
CallFire moves the court for summary judgment on two grounds,
first, that as a common carrier, it is exempt from liability under
the TCPA, and second, that it did not initiate the calls to
plaintiffs and therefore cannot be liable under either the TCPA or
the WADAD as a matter of law. The parties also dispute whether or
not certain exhibits presented by plaintiffs are to remain filed
under seal, hence, plaintiff filed a motion to seal documents.
In an order dated February 24, 2015, available at
http://is.gd/jUVqsJfrom Leagle.com, Judge Coughenour granted
plaintiffs' motion to seal in part and granted CallFire's motion
for summary judgment. Specifically, Judge Coughenour said that as
a compelling reason has been put forth to preserve the
confidentiality of (1) the Expert Disclosure and Written Report of
Plaintiff's Expert Jeffrey Hansen, (2) CallFire's Response to the
FCC's letter of inquiry, (3) CallFire's Response to the FTC's
Civil Investigation Demand, and (4) the redacted portions of the
deposition transcript of CallFire COO Jaggannathan Thinakaran, the
motion to seal is granted in part.
Judge Coughenour also noted that CallFire is a common carrier
exempt from liability under the TCPA. Furthermore, CallFire did
not "initiate" the calls made to Plaintiffs and cannot be found in
violation of the WADAD statute. For these reasons, CallFire's
motion for summary judgment is granted.
Rinky Dink Inc, Plaintiff, represented by Beth E Terrell --
bterrell@tmdwlaw.com -- Adrienne McEntee -- amcentee@tmdwlaw.com
-- at TERRELL MARSHALL DAUDT & WILLIE PLLC; Kim Williams --
kim@williamslaw.com -- Roblin John Williamson --
roblin@williamslaw.com -- at WILLIAMSON & WILLIAMS
Frank Knott, Plaintiff, represented by Beth E Terrell --
bterrell@tmdwlaw.com -- Adrienne McEntee -- amcentee@tmdwlaw.com
-- at TERRELL MARSHALL DAUDT & WILLIE PLLC
Electronic Merchant Systems Inc., Defendant, represented by
Rachelle Elizabeth Hill -- rhill@beankinney.com -- William Francis
Krebs -- wkrebs@beankinney.com -- at BEAN KINNEY & KORMAN, PC;
Benjamin Halasz -- Michael K Vaska -- at FOSTER PEPPER LLC
Jeffrey Gehrs, Defendant, represented by Michael K Vaska -- at
FOSTER PEPPER LLC
Callfire, Inc., Defendant, represented by Adam D Bowser --
adam.bowser@arentfox.com -- at ARENT FOX LLP; Duncan Calvert
Turner -- dturner@badgleymullins.com -- at BADGLEY MULLINS TURNER
PLLC
ELS EDUCATIONAL: Idaho Judge Narrows Claims in "Barnes" Suit
------------------------------------------------------------
District Judge Edward J. Lodge of the District of Idaho granted in
part and denied in part defendants' motion in the case TRUDY
BARNES, HANNA GESHELIN, and RICHARD McOMBER, individually and on
behalf of the class of ELS employees that are similarly situated,
Plaintiffs, v. ELS EDUCATIONAL SERVICES, INC., dba and aka ELS
LANGUAGE CENTERS, and their parent and associated entities,
Defendants, CASE NO. 4:14-CV-00188-EJL-REB (D. Idaho)
Plaintiffs Trudy Barnes, Hanna Geshelin and Richard McOmber were
employed by ELS Educational Services, Inc. (ELS). Plaintiffs
taught English to students who did not speak English as their
primary language. They filed a complaint for both individual and
class action alleging that they were paid for a 30 hour workweek,
but at a minimum should have been paid for a 40 hour workweek.
Plaintiffs filed their action pursuant to the Fair Labor Standards
Act (FLSA), 29 U.S.C. Sections 206 and 207. Plaintiffs claim their
unpaid time included class preparation time, grading and entering
grades, staff meetings, graduation lunch and discussion of grading
reports.
Defendants filed a motion to dismiss claiming that plaintiffs'
cannot circumvent the FLSA by couching their cause of action as a
class action and the FLSA does not recognize a claim for gap time
unpaid wages for employees working up to 40 hours per week unless
plaintiffs were paid less than the minimum wage for 40 hours of
work $290. Alternatively, defendants argued that plaintiffs should
be required to comply with the requirements imposed by Ashcroft v.
Iqbal, 556 U.S. 662 (2009) and Atlantic Corp. v. Twombly, 550 U.S.
544 (2007) and plead more than a mere recitation of Rule 23 as a
basis for the relief requested. Plaintiffs argue it is premature
for the Court to address the motion to dismiss as discovery has
not begun and these matters should be raised in a motion for
summary judgment.
Judge Lodge granted in part and denied in part defendants' motion
to dismiss or in the alternative for a more definite statement.
The FLSA claim for "gap time" is dismissed. Plaintiffs are granted
leave to file an amended complaint to change their class action
from an action under Rule 23 to an action under Section 219 of the
FLSA and to amend their claims to include a state law action for
failure to pay non-overtime hours not paid under a breach of
express or implied contract theory. The amended complaint must
also provide a more definite statement of plaintiffs' specific
claims.
A copy of Judge Lodge's memorandum order dated February 19, 2015,
is available at http://is.gd/gbwHajfrom Leagle.com.
Plaintiffs, represented by:
Charles Johnson, Esq.
JOHNSON OLSON CHARTERED
419 West Benton Street
Pocatello, ID 83204
Telephone: 208-232-7926
ELS Educational Services Inc., Defendant, represented by Aubrey
Dean Lyon -- adlyon@careyperkins.com -- Hans A Mitchell --
hamitchell@careyperkins.com -- at Carey Perkins LLP
ENCORE RECEIVABLE: Violates Fair Debt Collection Act, Suit Says
---------------------------------------------------------------
Luis Rosa, on behalf of himself and all others similarly situated
v. Encore Receivable Management, Inc. and John Does 1-25, Case No.
3:15-cv-02311-MAS-TJB (D.N.J., April 2, 2015) alleges violations
of the Fair Debt Collection Practices Act.
The Plaintiff is represented by:
Ari Hillel Marcus, Esq.
MARCUS LAW LLC
1500 Allaire Avenue, Suite 101
Ocean, NJ 07712
Telephone: (732) 660-8169
E-mail: ari@marcuslawyer.com
EVENFLO COMPANY: Sued Over Accident That Left Child Quadriplegic
----------------------------------------------------------------
San Juan Arias, Individually and As Next Friend of RJA, his minor
daughter v. Evenflo Company, Inc., Case No. 4:15-cv-00863 (S.D.
Tex., April 2, 2015) is a product liability and negligence cause
of action arising out of a vehicular accident that occurred in the
Southern District of Texas.
Evenflo Company, Inc. is a Delaware corporation doing business in
Texas. Evenflo is the manufacturer of the Big Kid Sport booster
safety seat.
On April 26, 2013, a 2012 Dodge Journey was struck in the
passenger side by another vehicle, according to the complaint. At
the time of the collision, minor RJA, who weighed less than 40
pounds, was a properly restrained left rear seat passenger in the
Journey. During the accident, and although RJA was of a proper
height and weight to utilize the "Big Kid Sport" booster safety
seat in accordance with Evenflo's labeling, and was properly
belted into the Journey, deficiencies in the Big Kid in question
resulted in catastrophic injuries that have rendered the child a
ventilator-dependent quadriplegic, the Plaintiffs allege.
The Plaintiff is represented by:
Robert Earl Ammons, Esq.
Sydney Meriwether, Esq.
THE AMMONS LAW FIRM, L.L.P.
3700 Montrose Boulevard
Houston, TX 77006
Telephone: (713) 523-1606
Facsimile: (713) 523-4159
E-mail: rob@ammonslaw.com
sydney@ammonslaw.com
EXXON MOBIL: Judge Dismisses 2013 Crude Oil spill Class Action
--------------------------------------------------------------
The Associated Press reports that a federal class-action lawsuit
against Exxon Mobil Corporation over a 2013 crude oil spill in
central Arkansas has been dismissed by a federal judge, who
acknowledged in his ruling that his decision seems unfair.
U.S. District Judge Brian Miller on March 17 dismissed the lawsuit
with prejudice, meaning it cannot be refiled.
Judge Miller said in a 22-page ruling that he was incorrect in
granting class-action status in the case and concluded that the
easement contracts Exxon Mobil held with the property owners do
not require the company to maintain the pipeline.
Judge Miller said his task was to decide between two options,
neither of which seem desirable.
"If Exxon's position prevails, the message to easement grantors is
that they are helpless in attempting to avoid a pipeline oil
spill, and have no rights until after the oil starts spewing from
the pipeline. And, this does not seem fair," Judge Miller wrote.
"On the other hand, if plaintiffs' position prevails, easement
grantors would essentially be able to hold pipeline easement
holders hostage, threatening them with lawsuits or contract
rescission every time the easement grantors possess any notion
that the companies are not meeting the easement grantors' personal
safety standards. And, this appears to be neither fair nor
commercially acceptable."
Judge Miller agreed with Exxon Mobil, which argued that Arkansas
law interprets the easement contracts "as the mere granting of a
right of way, without any affirmative duty to maintain or repair."
He also noted a lack of similarities among class members, which
likely would have included thousands of people in Arkansas, Texas,
Illinois and Missouri, writing that an oil leak in Illinois "would
have no practical effect on a landowner in Texas."
Exxon Mobil spokesman Christian Flathman said in an email to the
Arkansas Democrat-Gazette that the company is "pleased with the
Court's ruling on March 18 and believe it properly applied the law
to the facts of this case."
Tom Thrash, an attorney for the two couples who filed the lawsuit,
told The Associated Press on March 18 that he could appeal.
"We're disappointed in the ruling and we just really haven't had a
chance to analyze it," Mr. Thrash said. "An appeal is certainly a
possibility."
The 850-mile-long Pegasus pipeline runs from Texas to Illinois and
was closed shortly after the oil spill. A just more than 200-mile
segment of the pipeline in Texas has been restarted.
The pipeline ruptured March 29, 2013, in Mayflower, spilling more
than 200,000 gallons of crude oil in the town about 25 miles
northwest of Little Rock.
EZ-FLO INTERNATIONAL: Faces Class Action Over Defective Hoses
-------------------------------------------------------------
Legal Newsline reports that EZ-Flo International, a manufacturer
of water hoses for household appliances, is being sued over
allegedly faulty products.
Roger Mihay filed the lawsuit on March 5 against EZ-Flo, alleging
the stainless-steel braided hoses the business manufactures for
appliances leak and burst, causing property damage and potential
hazards from electrical shorts. The lawsuit also alleges EZ-Flo
knew about the defects, but continued to sell the products, which
are made for household fixtures such as toilets, dishwashers,
washing machines and faucets. The suit said the defective hoses
create a potential "catastrophic" flood possibility, and possible
fire from electrical shorts.
Mr. Mihay said he had to pay nearly $2,000 in water-damage repairs
after a defective braided hose leaked in his home. EZ-Flo
products contain a lifetime guarantee, and the business advertises
that the products won't burst for the life of the appliance.
The lawsuit alleges the metallic insert that secures the coupling
nut to the rubber hose cuts the rubber when the water pressure
builds, causing the hose to leak and burst.
Mr. Mihay seeks class action status in the lawsuit and more than
$5 million in damages, plus court costs. He is represented by
Eric Gibbs, Dylan Hughes and Steve Lopez of Gibbs Law Group in
Oakland, Calif.; and Gregory Coleman, Mark Silvey and Lisa White
of Greg Coleman Law, PC, in Knoxville, Tenn.
United States District Court for the Central District of
California case number 5:15-cv-0041
FIRST NATIONAL: 5th Cir. Affirmed Class Cert. in "Frey" Suit
------------------------------------------------------------
The United States Court of Appeals, Fifth Circuit, affirmed the
district court's certification of a plaintiff class in the case
JAMES L. FREY, Plaintiff-Appellee v. FIRST NATIONAL BANK
SOUTHWEST, Defendant-Appellant, NO. 13-10375 (5th Cir.)
First National Bank Southwest operates an ATM in Plano, Texas. The
ATM charges a fee for use by those who are not account-holders at
First National.
The Electronic Funds Transfer Act (EFTA) requires that operators
of ATMs provide notice to consumers when a fee will be imposed for
use of the ATM. 15 U.S.C. Section 1693b(d)(3). EFTA required ATM
operators to give notice in two locations, both in a prominent and
conspicuous location on or at the automated teller machine at
which the electronic fund transfer is initiated by the consumer
and on the screen of the automated teller machine, or on a paper
notice issued from such machine, after the transaction is
initiated and before the consumer is irrevocably committed to
completing the transaction.
James Frey made a withdrawal from First National's ATM. While the
ATM had an on-screen notice advising him of the transaction fee,
Frey alleges that the ATM did not have the required exterior
notice of the fee. Frey was charged a $3.50 fee for withdrawing
cash from the ATM. On November 9, 2011, Frey instituted a class
action against First National because its ATM at a particular
location lacked a fee notice on the exterior of the machine, in
violation of the EFTA 15 U.S.C. Section 1693b(d)(3) (2011). His
complaint seeks statutory damages, costs, and attorney's fees.
The district court granted Frey's motion for class certification.
It certified a class of consumers who were charged withdrawal fees
from the allegedly non-compliant ATM machine between November 9,
2010 and April 26, 2012, the date First National posted a
compliant notice on the ATM. First National appeals the class
certification.
The Fifth Circuit affirmed the district court's certification of
the class. A copy of the 5th Circuit's per curiam decision dated
February 20, 2015, is available at http://is.gd/hfqvDg from
Leagle.com.
The Fifth Circuit panel consists of Circuit Judges Fortunato P.
Benavides, Edith Brown Clement and James E. Graves, Jr.
FORT LAUDERDALE, FL: Wants to Keep Red Light Traffic Program
------------------------------------------------------------
Cynthia Demos, writing for CBSMiami, reports that following Fort
Lauderdale's decision to suspend its red light traffic program,
city commissioners decided on March 17 they want to find a way to
keep it.
Fort Lauderdale suspended its red light traffic program on March
6th, after a Broward traffic court ruled that it violated a
statute which says only law enforcement agencies can issue
violations.
On March 17, the city commission discussed the matter saying they
realized the current situation did not comply with the law but
they will try to find a way to make it work since it saves lives.
The decision comes a day after, two county judges dismissed 24,000
pending red-light camera tickets, according to the Sun-Sentinel.
The citations, which came from just about every city in the
county, tallied up to more than $6 million.
The suit challenging the citations was brought by the Ticket
Clinic. They argued, and the judges agreed, that cities violated
the law when they sent video to be reviewed to Arizona based-
America Traffic Solutions (ATS). That's the same company that
installed and maintains the cameras.
The company would review the videos and report their findings to
the cities' police agencies for ticketing.
Ted Hollander with the Ticket Clinic. Has been heading the fight
against the cameras for four years. But the Fort Lauderdale city
commission said this fight is all about saving lives.
"They say it is for safety issues but it is to make money," said
Mr. Hollander.
"It has never been about finances. This program works," said Mayor
Jack Seiler.
The plan now is to try to get some kind of discount for their
existing $1.7 million deal left with ATS for the next 13 months
for the 23 cameras in town. They're trying to figure out how to
proceed with ATS whose representative at the March 17 meeting said
they're willing to work out something with the city.
The big question for most is if you recently got a ticket in the
mail do you pay it? You have to fight it. When it goes before a
magistrate, it should be dismissed. If you ignore it, the fine
will go up. If you've already paid a ticket in the past and you
want your money back, you can join a class action lawsuit fighting
to do just that.
The issue was set to go before Miami-Dade County on March 30th.
FREDERICK J HANNA: Violates Fair Debt Collection Act, Suit Says
---------------------------------------------------------------
Glenn D. Fenderson and Debra A. Miller, on behalf of themselves
and others similarly situated v. Frederick J. Hanna & Associates,
P.C., Case No. 1:15-cv-00964-MHS-WEJ (N.D. Ga., April 2, 2015)
alleges violations of the Fair Debt Collection Practices Act.
The Plaintiffs are represented by:
Jesse S. Johnson, Esq.
ROBBINS GELLER RUDMAN & DOWD, LLP
120 E. Palmetto Park Road, Suite 500
Boca Raton, FL 33432
Telephone: (561) 750-3000
E-mail: jjohnson@gdrlawfirm.com
- and -
Marques J. Carter, Esq.
LAW OFFICE OF MARQUES J. CARTER
3400 Chapel Hill Road, Suite 100
Douglasville, GA 30135
Telephone: (888) 595-9111
Facsimile: (866) 842-3303
E-mail: mjclawllc@comcast.net
FULL JEEP: Discriminates Against Disabled Persons, Suit Claims
--------------------------------------------------------------
Fredkiey Hurley, individually v. Full Jeep Corporation d/b/a
Peculier Bar, a New York for profit corporation, Case No. 1:15-cv-
02470-NRB (S.D.N.Y., April 1, 2015) alleges that the Defendant
violated the Americans with Disabilities Act and the Florida
Accessibility Code by discriminating against the Plaintiff and
other similarly situated disabled individuals by failing to
provide accessible facilities at its property located in New York
City.
Mr. Hurley suffers from a relatively rare genetic developmental
congenital disorder that he contracted at birth -- spina bifida
cystica with myelomeningocele. He is permanently disabled and is
confined to a wheelchair.
Full Jeep Corporation is a tenant on the Property and operates it
as a food service establishment known as Peculier Bar.
The Plaintiff is represented by:
Tara Anne Demetriades, Esq.
ADA ACCESSIBILITY ASSOCIATES
2076 Wolver Hollow Road
Oyster Bay, NY 11771
Telephone: (516) 595-5009
E-mail: TDemetriades@Aol.com
GARLAND LODGE: Sued for Failing to Comply With ADA Requirements
---------------------------------------------------------------
Michael Miles, Individually v. Garland Lodge & Resort LLC, a
Illinois Limited Liability Company, Case No. 1:15-cv-11256-TLL-PTM
(E.D. Mich., April 2, 2015) is brought for injunctive relief, and
attorney's fees, litigation expenses, and costs pursuant to the
Americans with Disabilities Act.
Mr. Miles is paraplegic and uses a wheelchair for mobility. He
alleges that he has encountered architectural barriers at the
Defendant's property, which barriers have endangered his safety.
The Defendant's property, Garland Lodge & Resort, is located in
Lewiston, Michigan, in Montmorency County. The Defendant owns,
leases, leases to, or operates the property as a place of public
accommodation as defined by the ADA.
The Plaintiff is represented by:
Owen B. Dunn, Jr., Esq.
LAW OFFICE OF OWEN B. DUNN, JR.
4334 W. Central Ave., Suite 222
Toledo, OH 43615
Telephone: (419) 241-9661
Facsimile: (419) 241-9737
E-mail: dunnlawoffice@sbcglobal.net
GB COLLECTS: Removes "Gross" Suit to Southern District of Florida
-----------------------------------------------------------------
The class action lawsuit styled Gross v. GB Collects, LLC, et al.,
Case No. 06-02015-CA-004025, was removed from the 15th Judicial
Circuit for Broward County, Florida, to the U.S. District Court
for the Southern District of Florida (Ft. Lauderdale). The
District Court Clerk assigned Case No. 0:15-cv-60641-JIC to the
proceeding.
The Plaintiff is represented by:
William R. Cohen, Esq.
LAW OFFICES OF WILLIAM R. COHEN, PA
1615 S. Congress Aveue, Suite 103
Delray Beach, FL 33445
Telephone: (561) 459-4400
Facsimile: (561) 459-4395
E-mail: wcohen@cptriallaw.com
Defendant GB Collects, LLC is represented by:
Dale Thomas Golden, Esq.
Charles James McHale, Jr., Esq.
GOLDEN SCAZ GAGAIN, PLLC
201 North Armenia Avenue
Tampa, FL 33609
Telephone: (813) 251-5500
Facsimile: (813) 251-3675
E-mail: dgolden@gsgfirm.com
cmchale@gsgfirm.com
GENCO IMPORTING: Suit Seeks to Recover Costs Over ADA Violations
----------------------------------------------------------------
Fredkiey Hurley v. Genco Importing Inc. d/b/a Manitoba's, a New
York for profit corporation, Case No. 1:15-cv-02334-LGS (S.D.N.Y.,
March 27, 2015) seeks to recover attorneys' fees, litigation
expenses and costs incurred in pursuing an action to enforce and
obtain compliance with provisions of the Americans with
Disabilities Act.
According to the complaint, the violative property is located at
99 Avenue B, in New York City. The Property is being operated as
a food service establishment, thus, qualifying as a "place of
public accommodation."
Mr. Hurley is permanently disabled and confined to a wheelchair as
a result of his disorder, which he contracted at birth.
Genco Importing Inc. d/b/a Manitoba's, a New York for profit
corporation, is the tenant on the Property operating the food
service establishment.
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
GENCOR NUTRIENTS: "Ryan" Case Moved From N.D. Cal. to C.D. Cal.
---------------------------------------------------------------
District Judge Jeffrey S. White of the Northern District of
California ruled on the parties' motions in the case MICHAEL RYAN,
et al., Plaintiffs, v. GENCOR NUTRIENTS, INC., et al., Defendants,
NO. C 14-05682 JSW (N.D. Cal.)
The plaintiffs filed a complaint against the Gencor defendants,
Truderma, and 14 other entities. Plaintiffs allege that the
defendants manufacture, market, and sell testofen or nutritional
supplements containing testofen. Defendants advertise and market
these products as testosterone boosters, representing that
testofen has been clinically proven to increase free testosterone
levels. Plaintiffs allege that the representations are false and
assert claims for civil violations of the Racketeering Influenced
Corrupt Organizations Act, breach of express and implied
warranties, as well as violations of unfair trade practices in
violation of California, Pennsylvania, and Arizona law.
On January 7, 2015, Plaintiffs filed a Notice of Pendency of Other
Action, in which they assert that this action is related to an
action that currently is pending in the United States District
Court for the District of Massachusetts, Camey, et al. v. Force
Factor, LLC, 1:14-cv-14717-RWZ (Camey).
Plaintiffs have filed a motion before the Judicial Panel on Multi-
District Litigation (JPML), in which they ask the JPML to transfer
Camey to this District for coordinated or consolidated
proceedings. The Gencor defendants contend that before plaintiffs
filed this case, plaintiffs' counsel filed a nearly identical
putative class action entitled O'Toole, et al., v. Gencor
Nutrients, Inc., et al., No. 14-cv-3754 in the Central District,
which was assigned to the Honorable Manuel L. Real.
Defendants filed a motion to transfer the action to the United
States District Court for the Central District of California.
Judge White vacated a scheduled hearing for March 6, 2015, and
denied plaintiffs' motion to stay and granted defendants' motion
to transfer the action to the United States District Court for the
Central District of California.
A copy of Judge White's order dated February 19, 2015, is
available at http://is.gd/ECnqA4from Leagle.com.
Plaintiffs, represented by Barry R. Himmelstein --
barry@himmellaw.com -- at HIMMELSTEIN LAW NETWORK
Gencor Nutrients, Inc., GE Nutrients, Inc., Jith Veeravalli,
Defendants, represented by Joshua G. Simon --
jsimon@calljensen.com -- Matthew Ryan Orr -- morr@calljensen.com
-- at Call & Jensen
General Nutrition Corporation, GNC Corporation, General Nutrition
Centers, Inc., S&G Properties, LLC, Force Factor LLC, Direct
Digital LLC, Pharmafreak Holdings Inc., Prevention, LLC,
Defendants, represented by Angel A. Garganta --
aagarganta@Venable.com -- Daniel Scott Silverman --
dssilverman@Venable.com -- Jasmine Kaur Singh --
jksingh@Venable.com -- Robert Leslie Meyerhoff --
rlmeyerhoff@Venable.com -- Sarah Sohyun Park -- spark@Venable.com
-- at Venable LLP
Truderma, LLC, Defendant, represented by David R. Koch --
dkoch@kochscow.com -- Steven Bradley Scow -- at Koch and Scow, LLC
Dreambrands, Inc., Defendant, represented by Angel A. Garganta --
aagarganta@Venable.com -- Robert Leslie Meyerhoff --
rlmeyerhoff@Venable.com -- Sarah Sohyun Park -- spark@Venable.com
-- at Venable LLP
NDS Nutrition Products, Inc., Defendant, represented by David
Robert Clark -- drclarklaw@att.net -- at The Clark Law Firm, APLC
Premium Nutraceuticals, LLC, Defendant, represented by Daniel F.
Crowley -- dcrowley@dcalaw.com -- Daniel Crowley & Associates &
Jeffrey Francis Peil -- packages@hugginsfirm.com -- at Charles T.
Huggins, Jr., P.C.
GOODMAN MANUFACTURING: Removes "Van Kleef" Suit to E.D. Arkansas
----------------------------------------------------------------
The class action lawsuit titled Van Kleef v. Goodman Manufacturing
Company LP, et al., Case No. CV-15-00047, was removed from the
Circuit Court of Pope County, Arkansas, to the U.S. District Court
for the Eastern District of Arkansas (Little Rock). The District
Court Clerk assigned Case No. 4:15-cv-00176-BSM to the proceeding.
Based on alleged defects in Goodman-and Amana-brand air
conditioning units, the Plaintiff seeks recovery for (1) breach of
express warranty, (2) breach of implied warranty of
merchantability, (3) breach of implied warranty of fitness for a
particular purpose, (4) violation of the Arkansas Deceptive Trade
Practices Act, and (5) negligence.
The Plaintiff is represented by:
James A. Streett, Esq.
Alex G. Streett, Esq.
Robert M. Veach, Esq.
STREET LAW FIRM, P.A.
107 West Main Street
Russellville, AR 72801
Telephone: (479)968-2030
Facsimile: (479) 968-6253
E-mail: james@streettlaw.com
alex@streettlaw.com
robert@streettlaw.com
- and -
Joe P. Leniski, Jr., Esq.
BRANNSTETTER, STRANCH & JENNINGS, PLLC
227 2nd Avenue North, 4th Floor
Nashville, TN 37201
Telephone: (615) 254-8801
E-mail: jleniski@branstetterlaw.com
The Defendants are represented by:
Kevin A. Crass, Esq.
FRIDAY, ELDREDGE & CLARK
400 West Capitol A venue, Suite 2000
Little Rock, AR 72201-3522
Telephone: (501) 376-2011
Facsimile: (501) 376-2147
E-mail: crass@fridayfirm.com
- and -
Theodore M. Grossman, Esq.
Sharyl A. Reisman, Esq.
JONES DAY
222 East 41st Street
New York, NY 10117
Telephone: (212) 326-3939
E-mail: tgrossman@jonesday.com
sareisman@jonesday.com
- and -
Richard J. Bedell, Jr., Esq.
Louis A. Chaiten, Esq.
JONES DAY
North Point, 901 Lakeside Avenue
Cleveland, OH 44114-1190
Telephone: (216) 586-3939
E-mail: rjbedell@jonesday.com
lchaiten@jonesday.com
- and -
Elizabeth G. Myers, Esq.
JONES DAY
717 Texas, Suite 3300
Houston, TX 77002
Telephone: (832) 239-3939
E-mail: egmyers@jonesday.com
GREEN & COHEN: Suit Seeks Damages Arising From Violation of FDCPA
-----------------------------------------------------------------
Iryna Charcot v. Mr. Jason M. Green, Green & Cohen, PC, & Mr.
Doron Kessel, Owner, 121 Realty (2013), LLC, GMK Management, Mr.
Pawel Batog, manager, Defendants, Individually & Severally, Case
No. 1:15-cv-02336 (S.D.N.Y., March 27, 2015) is an action for
damages and equitable relief under the Fair Debt Collection
Practice Act arising from alleged prohibitive debt collector
actions by the Defendants.
New York City-based Green & Cohen PC is a law firm and does debt
collection. 121 Realty (2013) LLC is a domestic limited liability
corporation, incorporated in the state of New York and
headquartered in New York City. The Individual Defendants are
owners or officers of the Corporate Defendants.
The Plaintiff is not represented by any law firm.
HAMPTON CREEK: Faces Just Mayo False Advertising Class Action
-------------------------------------------------------------
Carolina Bolado and Michael Lipkin, writing for Law360, report
that a putative class action filed in Florida state court claims
startup Hampton Creek Inc. falsely advertised and labeled its Just
Mayo vegan spread, which is made entirely of plant products, as
mayonnaise.
Plaintiff Leah Davis says in the March 13 complaint that she
bought Hampton Creek's Just Mayo believing that it was real
mayonnaise and would never have bought it had she known that it
was not.
"Despite its name, Just Mayo does not contain mayonnaise and is
not mayonnaise at all," Ms. Davis said in the complaint. "Hampton
Creek knew and purposely misrepresented and failed to disclose
this fact to consumers."
Beyond the misleading name, the label also features a "giant image
of an egg," according to the suit. The product does not perform
like real mayonnaise when it is heated, because it lacks the same
emulsifying ingredients, so when it is heated, its oils separate,
unlike real mayonnaise, Davis said.
"The name Just Mayo is literally false because it expressly
communicates that Just Mayo is mayonnaise, containing the
ingredients consumers expect to be found in mayonnaise, when, in
fact, it is not," Ms. Davis said.
Hampton Creek, which just announced $90 million in venture funding
in December, was founded in 2011 in San Francisco and has won the
support of technology executive including Bill Gates and Yahoo's
former CEO Jerry Yang with its eggless, plant-based foods.
"We started this because we believe it should be easier for folks
to eat better food, and 11 million people and the largest
companies in the world agree," Hampton Creek CEO Josh Tetrick
said. "Just this year, we'll eliminate the need for 4B quarts of
water. That's not a talking point. That is a fact. And we
believe that good people like Leah, similar to Unilever, feel that
too."
The company was hit last year with a false advertising suit by
Conopco Inc., which does business as Unilever and makes Best Foods
and Hellmann's mayonnaise. Unilever sued Hampton Creek in New
Jersey federal court alleging Just Mayo was falsely advertised as
real mayonnaise despite not having any eggs, which it said is a
required ingredient under U.S. Food and Drug Administration
standards.
But Unilever voluntarily dismissed the suit in December, saying it
was giving Hampton Creek a chance to consider possible label
changes with industry groups and regulators.
Ms. Davis is represented by Nathan C. Zipperian, Scott R. Shepherd
and James C. Shah of Shepherd Finkelman Miller & Shah LLP and
Jeffrey S. Goldberg and Todd B. Naylor -- tnaylor@gs-legal.com --
of Goldenberg Schneider LPA.
Counsel information for Hampton Creek was unavailable.
The case is Davis et al. v. Hampton Creek Inc., case number 2015-
5993-CA, in the Eleventh Judicial Circuit Court of Florida.
HAYT HAYT: Sued in N.J. for Violating Fair Debt Collection Act
--------------------------------------------------------------
Karreen M. Mann, on behalf of himself and all others similarly
situated v. Hayt, Hayt & Landau, LLC and John Does 1-25, Case No.
3:15-cv-02302-AET-TJB (D.N.J., April 1, 2015) is brought over
alleged violations of the Fair Debt Collection Practices Act.
The Plaintiff is represented by:
Ari Hillel Marcus, Esq.
MARCUS LAW LLC
1500 Allaire Avenue, Suite 101
Ocean, NJ 07712
Telephone: (732) 660-8169
E-mail: ari@marcuslawyer.com
HERBALIFE LTD: Ad Watchdog Opposes Class Action Settlement
----------------------------------------------------------
Seeking Alpha reports that ad watchdog truthinadvertising.org
filed a brief on March 16 with the U.S. District Court for the
Central District of California opposing Herbalife's proposed $17
million settlement of a class-action lawsuit filed in April 2013
by a former distributor.
A tentative settlement was reached in October 2014 whereby the
company would pay $17M to resolve the action and prevent the 1.3
million class members from ever suing it again.
In February, the plaintiffs stated that they intended to oppose
the settlement as well. Attorney Douglas Brooks claims that at
least $100M is necessary to adequately compensate the class.
If the proposed settlement goes through, most class members would
receive no more than $20 each, while attorneys who negotiated the
deal would pocket $5.25 million. A hearing on the proposed
settlement is scheduled for May 11.
HMSHOST CORP: Faces "Migala" Wage and Hour Suit in New Jersey
-------------------------------------------------------------
Eric Migala and Veronica Moody v. HMSHost Corporation and Host
International, Inc., Case No. 3:15-cv-02305-MAS-DEA (D.N.J.,
April 1, 2015) alleges that the Defendants misclassified the
Plaintiffs as exempt under federal and state overtime laws and
failed to pay them for all hours worked.
The Defendants are Delaware corporations with their principal
place of business located in Bethesda, Maryland. HMSHost
Corporation is wholly owned by Autogrill Group, Inc., a subsidiary
of Autogrill S.p.A., an Italian corporation. Directly or through
wholly owned subsidiaries, including Defendants Host
International, Inc., HMSHost Corporation manages and oversees the
operations of food and beverage concessions at numerous United
States airports and other travel facilities.
The Plaintiffs are represented by:
Seth R. Lesser, Esq.
Jeffrey A. Klafter, Esq.
Fran L. Rudich, Esq.
Michael H. Reed, Esq.
KLAFTER, OLSEN & LESSER LLP
Two International Drive, Suite 350
Rye Brook, NY 10573
Telephone: (914) 934-9200
Facsimile: (914) 934-9220
E-mail: slesser@klafterolsen.com
Jklafter@klafterolsen.com
frudich@klafterolsen.com
michael.reed@klafterolsen.com
- and -
Bradley I. Berger, Esq.
BERGER & ASSOCIATES
321 Broadway
New York, NY 10007
Telephone: (212) 571-1900
HOME SWEET: Faces "Anderson" Suit Alleging Violations of FLSA
-------------------------------------------------------------
Courtney Anderson, on behalf of himself and those similarly
situated v. Home Sweet Home Watch, LLC, a Florida limited
liability company, and Steven J. Sweet, Case No. 2:15-cv-00208-
JES-CM (M.D. Fla., March 31, 2015) is brought over alleged
violations of the Fair Labor Standards Act.
The Plaintiff is represented by:
Amanda E. Kayfus, Esq.
Andrew Ross Frisch, Esq.
MORGAN & MORGAN, PA
600 N Pine Island Rd., Suite 400
Plantation, FL 33324
Telephone: (954) 318-0268
Facsimile: (954) 333-3515
E-mail: akayfus@forthepeople.com
afrisch@forthepeople.com
HUNTER WARFIELD: Accused of Violating Fair Debt Collection Act
--------------------------------------------------------------
Christopher Massaro, on behalf of himself and all others similarly
situated v. Hunter Warfield, Inc., Case No. 8:15-cv-00756-JDW-TBM
(M.D. Fla., March 30, 2015) accuses the Defendant of violating the
Fair Debt Collection Practices Act.
The Plaintiff is represented by:
Shireen Hormozdi, Esq.
HORMOZDI LAW FIRM, LLC
1770 Indian Trail Lilburn Road, Suite 175
Norcross, GA 30093
Telephone: (678) 395-7795
Facsimile: (866) 929-2434
E-mail: shireen@norcrosslawfirm.com
IBM CORP: Faces N.Y. Securities Suit by Insulators Pension Fund
---------------------------------------------------------------
International Association of Heat and Frost Insulators and
Asbestos Workers Local #6 Pension Fund, Individually and on Behalf
of All Others Similarly Situated v. International Business
Machines Corporation, Virginia M. Rometty, Martin J. Schroeter and
James J. Kavanaugh, Case No. 7:15-cv-02492-VB (S.D.N.Y., April 1,
2015) is a federal securities class action lawsuit brought on
behalf of all persons or entities, who purchased or acquired the
publicly traded securities of IBM between
January 22, 2014, and October 17, 2014.
IBM is a global information technology company founded in 1911 and
based in Armonk, New York. The Company manufactures and sells
computer hardware and software, and offers a variety of technology
services. The Individual Defendants are officers or agents of
IBM.
The Plaintiff is represented by:
Christopher J. Keller, Esq.
Michael Walter Stocker, Esq.
Rachel Ann Avan, Esq.
LABATON SUCHAROW, LLP
140 Broadway
New York, NY 10005
Telephone: (212) 907-0700
Facsimile: (212) 818-0477
E-mail: ckeller@labaton.com
mstocker@labaton.com
ravan@labaton.com
INOGEN INC: Pomerantz Law Firm Files Securities Class Action
------------------------------------------------------------
Pomerantz LLP on March 19 disclosed that it has filed a class
action lawsuit against Inogen, Inc. and certain of its officers.
The class action, filed in United States District Court, Central
District of California, and docketed under 15-cv-02026, is on
behalf of a class consisting of all persons or entities who
purchased Inogen securities between November 12, 2014 and March
11, 2015, inclusive. This class action seeks to recover damages
against Defendants for alleged violations of the federal
securities laws under the Securities Exchange Act of 1934.
If you are a shareholder who purchased Inogen securities during
the Class Period, you have until May 12, 2015 to ask the Court to
appoint you as Lead Plaintiff for the class. A copy of the
Complaint can be obtained at www.pomerantzlaw.com
To discuss this action, contact Robert S. Willoughby at
rswilloughby@pomlaw.com or 888-476-6529 (or 888.4-POMLAW), toll
free, x237. Those who inquire by e-mail are encouraged to include
their mailing address, telephone number, and number of shares
purchased.
Inogen is a medical technology company that develops,
manufactures, and markets portable oxygen concentrators, which
deliver supplemental oxygen therapy to patients suffering from
chronic obstructive pulmonary disease and other respiratory
conditions.
The Complaint alleges that throughout the Class Period, Defendants
made false and misleading statements and/or failed to disclose
information about the accuracy of Inogen's financial statements
and the effectiveness of Inogen's disclosure controls and
procedures. Furthermore, Inogen failed to disclose material
weaknesses in its internal controls over financial reporting, and
as a result of the foregoing, the Company's financial statements
were materially false and misleading at all relevant times.
After trading closed on March 11, 2015, the Company announced that
management discovered potential violations of its internal
accounting policies, which prompted an internal investigation
conducted by the Audit Committee and independent advisors.
On this news, the Company's stock fell $4.24 per share, or over
11%, from its previous closing price to close at $33.10 per share
on March 12, 2015, damaging investors.
With offices in New York, Chicago, Florida, and San Diego, The
Pomerantz Firm -- http://www.pomerantzlaw.com-- concentrates its
practice in the areas of corporate, securities, and antitrust
class litigation.
INSTACART: Sued in California Over Employee Misclassification
-------------------------------------------------------------
Katy Steinmetz, writing for Time, reports that a case filed in
California's Northern District Court claims that the grocery
delivery service owes workers for expenses
A new lawsuit alleges that Instacart, an on-demand grocery
delivery service valued at $2 billion, misclassifies its workers
as independent contractors to avoid paying expenses like overtime,
reimbursements for gas and workers' compensation.
The class action complaint, which was filed on Jan. 9th but has
not been previously reported, describes Instacart's business
practices as "unethical, oppressive and unscrupulous" and seeks
damages for anyone who has worked as a "shopper delivery person"
for the company since 2012.
The complaint, which contains allegations similar to those in two
ongoing lawsuits also pending in California's Northern District
Court against ride-app companies Uber and Lyft, is the latest
potential legal hurdle for the surging on-demand economy.
"Instacart does all it can to distance itself from the employer-
employee relationship," says Bob Arns, whose San Francisco-based
Arns Law Firm brought the suit on behalf of workers including
Dominic Cobarruviaz, who was injured in an accident while
delivering groceries for Instacart. "Why does a company want to
do that? It's to keep the bottom line lower, to unfairly compete
against other companies. That's the crux of our case."
The suit contends that Instacart, which is two-and-a-half years
old and operates in 15 markets around the U.S., has violated labor
laws due to the workers' "misclassification, unpaid workers'
compensation insurance, unpaid tax contributions, unreimbursed
expenses, and related misconduct." The complaint also claims that
the company has committed fraud, knowing workers should be
classified as employees, and used unfair business practices.
"[There is] this narrative that I think companies like Instacart
and Uber and Lyft want to become more mainstream," says
Jonathan Davis, another lawyer for the plaintiffs, "that somehow
these antiquated laws don't apply to these types of work
relationships. And frankly it's ludicrous. Just because a worker
is directed and controlled by an algorithm that comes through a
phone as opposed to a foreman doesn't do anything to change the
fundamental relationship of employment."
Instacart has not responded to requests for comment. The case
names the company as Maplebear Inc., which does business as
Instacart.
Instacart customers order groceries through a smartphone app,
choosing items they want from their preferred store. The app then
relays grocery orders to workers, who shop for the products and
deliver them using their own vehicles in as little as an hour or
two. The company takes a cut from a delivery fee and gets an
undisclosed amount from retailers that customers buy groceries
from through the app.
In late February, the case was assigned to District Judge Edward
Chen, who is also hearing the Uber case, which claims that Uber
drivers are employees rather than independent contractors and
should be reimbursed for expenses like gas, insurance and vehicle
maintenance. On March 11, Chen denied Uber's request for a
summary judgment ruling that drivers are independent contractors,
saying that a jury would have to decide whether the drivers are
employees or "partners," as the company calls them. In his
ruling, the judge said Uber's claim that it is a "technology
company" and not a "transportation company" is "fatally flawed."
Instacart's CEO Apoorva Mehta has likewise said that Instacart is
a software company, not a grocery delivery company.
Arns believes that the terms the company sets out, which customers
must agree to, could pass liability along to the person ordering
groceries. If Instacart is "solely a communication platform" for
facilitating a connection between the customer and the shopper, he
says, damages from an accident or injury like the one Corbarruviaz
had could be the responsibility of the customer who started the
communication.
The suit rejects the idea that Instacart is simply a middle man,
claiming that the company "is in the business of providing online
grocery shopping and delivery service." The suit seeks to define
the class as everyone who "performed grocery delivery service" for
Instacart from Jan. 1, 2012 to the present. As of June 2014,
about 1,000 people were reportedly registered to shop and deliver
groceries for the company. Mr. Arns estimates that the size of
the class could be 10,000.
The growing independent-contractor workforce is a key reason that
companies like Instacart and Uber have been able to grow so
quickly. In January, Forbes put Instacart at the top of its
"America's Most Promising Companies" list. The cost of organizing
independent contractors is much less than hiring employees. The
companies who operate this way don't have to pay unemployment tax
or overtime, or ensure that workers are making at least minimum
wage. They don't have to pay for their own fleet of vehicles or
costs associated with operating them since the workers use their
personal cars. In many cases, they don't have to pay for the
smartphones or data plans workers need to do the jobs.
Mr. Arns and Mr. Davis say that after the costs of being a worker
for Instacart are added up, many of them are not making minimum
wage. Unlike drivers on platforms like Uber and Lyft, who can log
in to work and log out at any time, personal shoppers for
Instacart set their own hours in advance and work in shifts.
"We can't sacrifice the gains that have been made over time in
this country to create good, solid middle-class jobs simply at the
altar of expediency and technology," Mr. Davis says. They contend
that the lawsuit is beneficial for companies in the sharing
economy in the long run, even if it ends up costing them millions.
"We want to see Instacart succeed," says Mr. Arns, "and it can
succeed by complying with the law."
JC PENNEY: Must Face Class Action Over Fake Prices
--------------------------------------------------
Joe Van Acker, writing for Law360, reports that a California
federal judge on March 17 refused to dismiss a proposed class
action claiming J.C. Penney Corp. tricked customers with fake
prices, rejecting the company's argument that the plaintiff had
improperly accused it of reverting to the scheme after her
proposed class period ended.
In denying J.C. Penney's motion, U.S. District Judge Fernando M.
Olguin also declined to strike the post-February 2012 allegations
in plaintiff Cynthia E. Spann's fourth amended complaint. He said
that while the complaint did accuse J.C. Penney of going back to
scamming customers after the class period she proposed, she had
provided that information in order to justify her request for an
injunction requiring the company to follow the rules.
"However, in its briefing regarding defendant's post-February 2012
conduct, defendant appears to have overlooked that point," Judge
Olguin said. "When a plaintiff states a claim, the appropriate
form of relief is not to be decided upon a motion to dismiss."
Ms. Spann accused J.C. Penney in 2012 of putting up signs with
fake "original" and "sale" prices in order to dupe customers into
paying full price while thinking they were getting bargains, and
proposed a class period running from Nov. 5, 2010, to Jan. 31,
2012, in her fourth and latest amended complaint.
She said that the company had rolled out a "fair and square
pricing strategy" that proved disastrous for J.C. Penney, which
she claimed then returned to using fake sale signs after removing
former CEO Ron Johnson.
In its motion to dismiss, J.C. Penney pointed to the court's
decision to throw out claims from her previous amended complaint
to the extent that they involved the company's post-February 2012
conduct, and said the latest complaint still improperly attempted
to expand the scope of the class action.
The company said Ms. Spann had identified just two instances of
"false comparative price advertising" after the class period, and
said that isn't enough to justify an injunction because Spann
wasn't affected post-February 2012.
Ms. Spann countered that she didn't intend to show that she was
harmed by the company's conduct beyond the end-date of her
proposed class period, but sought to keep pace with J.C. Penney's
"flip-flopping" between its deceptive pricing and the fair-and-
square approach. She also said that the two instances she cited
involved J.C. Penney advertising fake sales for 90 consecutive
days and were proof that the company is likely to continue to
deceive customers.
Judge Olguin sided with Spann, ruling that he didn't have to find
that Spann is entitled to an injunction, only that she could
potentially be entitled to some relief.
J.C. Penney is represented by Moe Keshavarzi --
mkeshavarzi@sheppardmullin.com -- John Landry and Paul L. Seeley
-- pseeley@sheppardmullin.com -- of Sheppard Mullin Richter &
Hampton LLP.
Ms. Spann is represented by Matthew J Zevin of Stanley Law Group,
Derek J. Emge of Emge and Associates and David A. Huch of Law
Offices of David Huch.
The case is Cynthia E. Spann v. J.C. Penney Corp. Inc. et al.,
case number 8:12-cv-00215, in the U.S. District Court for the
Central District of California.
JOHNSON & JOHNSON: Faces Class Action Over Tylenol Packaging
------------------------------------------------------------
John O'Brien, writing for Legal Newsline, reports that the makers
of Tylenol were sued on March 9 over allegations the packaging
contains too much empty space and is deceiving to consumers.
Janckell Fermin, Josefina Valdez and Adriana Sousa filed the
lawsuit against Johnson & Johnson and McNeil-PPC alleging the
Tylenol products have "non-functional slack fill" that is
misleading to customers.
The lawsuit alleged seven products containing the pain medication
acetaminophen are packaged in similar containers leading some
customers to believe they are getting more than what is actually
in the container. The suit alleged the company does this in order
to "maximize the shelf presence" of the products compared to its
competitors.
The suit alleged the packaging is a violation of the federal Food,
Drug & Cosmetic Act and the company earned millions it wouldn't
have otherwise made if the packaging were accurate.
The lawsuit seeks class status for anyone who purchased the
Tylenol products, as well as more than $5 million in damages plus
court costs.
The plaintiffs are represented by C.K. Lee, of Lee Litigation
Group, PLLC of New York City.
United States District Court for the Eastern District of New York
case number 1:15-cv-01215.
LEIKIN INGBER: Case Nixed for Lack of Subject Matter Jurisdiction
-----------------------------------------------------------------
District Judge Patrick J. Duggan of the Eastern District of
Michigan, Southern Division ruled on the parties' motions in the
case CAROLYN A. SEBESTYEN, Plaintiff, v. LEIKIN, INGBER & WINTERS,
P.C., and PAUL M. INGBER, Defendants, CASE NO. 13-CV-15182 (E.D.
Mich.)
The defendant Leikin, Ingber & Winters, P.C. (LIW) is a Michigan
professional service corporation engaged in the business of
collecting consumer debts. Defendant Paul M. Ingber is an attorney
who regularly files debt collection lawsuits against consumers.
LIW sent a demand letter to the plaintiff Carolyn A. Sebestyen,
seeking to collect an alleged debt. The notice, which was signed
by Ingber, states that Plaintiff owes a debt to William Beaumont
Hospital in the amount of $6,839.35.
Prompted by a debt collection notice she received, plaintiff filed
a lawsuit under the Fair Debt Collection Practices Act (FDCPA), 15
U.S.C. Sections 1692-1692p, against the defendants. In addition to
seeking class relief, plaintiff's complaint requests statutory
damages, as well as attorney's fees, costs, and expenses.
Less than two months after plaintiff instituted the action,
defendants made plaintiff an offer of judgment pursuant to Federal
Rule of Civil Procedure 68. Plaintiff did not accept the offer and
subsequently filed a class certification motion pursuant to Rule
23. Defendants filed a motion to dismiss under Rule 12(b)(1) or,
in the alternative, a motion for summary judgment pursuant to Rule
56.
Judge Duggan granted defendants' motion to dismiss for lack of
subject matter jurisdiction and denied plaintiff's motion for
class certification without prejudice. Pursuant to the rule
articulated in O'Brien, 575 F.3d at 575, the court enters a
judgment in favor of plaintiff and against defendants in
accordance with the terms of defendants' Rule 68 Offer of
Judgment.
The Court, however, said Plaintiff may file a petition for costs
and/or attorney's fees.
A copy of Judge Duggan's opinion and order dated March 27, 2015,
is available at http://is.gd/0Vy8sNfrom Leagle.com
Carolyn Sebestyen, Plaintiff, represented by:
Adam S. Alexander, Esq.
Alexander Law Firm
17200 W 10 Mile Rd #200
Southfield, MI 48075
Telephone: 248-246-6353
- and -
Scott D. Owens, Esq.
Law Office of Scott D. Owens
3800 S. Ocean Dr., Suite #2335
Hollywood, FL 33019
Telephone: 844-736-5342
Facsimile: 954-337-0666
Defendants, represented by:
Charity A. Olson, Esq.
Olson Law Group
2723 S State St, #150
Ann Arbor, MI 48104
LENTUO INTERNATIONAL: May 12 Lead Plaintiff Deadline Set
--------------------------------------------------------
The Rosen Law Firm, P.A., a global investor rights law firm,
announces that it has filed a class action lawsuit on behalf of
purchasers of Lentuo International Inc. American Depository Shares
("ADS") between June 14, 2013 to March 9, 2015, inclusive. The
lawsuit seeks to recover damages for Lentuo investors under the
federal securities laws.
To join the Lentuo class action, go to the website at
http://www.rosenlegal.com/cases-545.htmlor call Phillip Kim, Esq.
or Kevin Chan, Esq. toll-free at 866-767-3653 or email
pkim@rosenlegal.com or kchan@rosenlegal.com for information on the
class action. The suit is pending in U.S. District Court for the
Central District of California.
NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A
CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU
RETAIN ONE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO
NOTHING AT THIS POINT. YOU MAY RETAIN COUNSEL OF YOUR CHOICE.
According to the lawsuit, Lentuo issued materially false and
misleading statements to investors and/or failed to disclose that:
(1) Beijing Lentuo Electromechanical Group Co., Ltd. ("Lentuo
Electromechanical") -- a related party of Lentuo -- anticipated
and issued RMB 250 million of debt in 2013 to finance the
construction of 4S dealerships; (2) the consolidation of Lentuo
Electromechanical into Lentuo's financial statement is required;
(3) Lentuo did not have sufficient working capital for 2015; and
(4) as a result of the foregoing, the Company's financial
statements and results were materially false and misleading at all
relevant times. When the truth was revealed to investors, the
price of Lentuo ADS fell, damaging investors.
A class action lawsuit has already been filed. If you wish to
serve as lead plaintiff, you must move the Court no later than May
12, 2015. If you wish to join the litigation go
http://www.rosenlegal.com/cases-545.htmlor to discuss your rights
or interests regarding this class action, please contact, Phillip
Kim, Esq. or Kevin Chan, Esq. of The Rosen Law Firm toll free at
866-767-3653 or via e-mail at pkim@rosenlegal.com or
kchan@rosenlegal.com.
The Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation.
LEVEL 3: Plaintiff's Bid to Amend Complaint Partially Granted
-------------------------------------------------------------
District Judge William Alsup of the Northern District of
California granted in part and denied in part plaintiff's motion
in the case TRACY TEMPLETON SMITH, Plaintiff, v. LEVEL 3
COMMUNICATIONS INC., Defendant, NO. C 14-05036 WHA (N.D. Cal.)
Tracey Templeton Smith was a director of large enterprise accounts
for defendant Level 3 Communications, but was terminated in 2013.
Plaintiff alleges defendant owed her approximately $30,000 in
unpaid commissions when defendant terminated her. Plaintiff
alleges that these commissions had been fully earned, and the only
requirement left to receive them was for plaintiff to be employed
at the end of the year. Plaintiff alleges Level 3 terminated her
shortly before the commissions were to be paid, in order to avoid
paying plaintiff the earned commissions.
A previous order dismissed plaintiff's original complaint because
she did not allege sufficient facts to make out any plausible
claims for relief. Plaintiff's proposed amended complaint has been
narrowed down to the following six claims: (1) violations of
California Labor Code Sections 201 and 203 for failing to pay
wages due upon termination; (2) violation of California Labor Code
Section 233 relating to Level 3's alleged harassment of plaintiff;
(3) violations of the CFRA relating to Level 3 allegedly forcing
plaintiff to use sick time before taking CFRA leave; (4) wrongful
termination in violation of public policy; and (5) unfair business
practices under Business and Professions Code Section 17200; and
(6) violation of California Labor Code Section 219 relating to
Level 3's commission plan.
Judge Alsup granted in part and denied in part plaintiff's motion
to amend her complaint. Plaintiff's motion to amend her
California Labor Code Sections 201 and 203 claims, only as to the
$30,000 she actually earned, is granted. Plaintiff's motion to
amend her wrongful termination in violation of public policy claim
is granted. Plaintiff's motion to amend her Business and
Professions Code Section 17200 claim is granted. Plaintiff's
motion to amend her CFRA and California Labor Code Sections 219
and 233 claims is denied.
A copy of Judge Alsup's order dated February 24, 2015, is
available at http://is.gd/PTZfnX from Leagle.com
Tracy Templeton Smith, Plaintiff, represented by:
Randall Marc Widmann, Esq.
LAW OFFICES OF RANDALL M. WIDMANN
2479 E Bayshore Rd #703
Palo Alto, CA 94303
Telephone: 650-424-8400
Facsimile: 650-617-6888
Level 3 Communications, Inc., Defendant, represented by Evan
Campbell Mix -- emix@mckennalong.com -- Jennifer Connors Hayes --
jhayes@mckennalong.com -- atMcKenna Long & Aldridge LLP
LOGAN'S ROADHOUSE: Removes "Bush" Suit to Kentucky District Court
-----------------------------------------------------------------
The class action lawsuit captioned Bush v. Logan's Roadhouse,
Inc., Case No. 15-CI-400387, was removed from the Fayette County
Circuit Court to the U.S. District Court for the Eastern District
of Kentucky (Lexington). The District Court Clerk assigned Case
No. 5:15-cv-00077-DCR to the proceeding.
The lawsuit seeks relief under the Fair Labor Standards Act.
The Plaintiff is represented by:
Robert L. Abell, Esq.
120 N. Upper Street
P.O. Box 983
Lexington, KY 40588-0983
Telephone: (859) 254-7076
Facsimile: (859) 281-6541
E-mail: robert@robertabelllaw.com
The Defendant is represented by:
Stanley E. Graham, Esq.
WALLER, LANSDEN, DORTCH & DAVIS, LLP
511 Union Street
Nashville Center, Suite 2700
P.O. Box 198966
Nashville, TN 37219-8966
Telephone: (615) 244-6380
Facsimile: (615) 244-6804
E-mail: stan.graham@wallerlaw.com
LUMBER LIQUIDATORS: Faces "Copenheaver" Suit Over Unsafe Flooring
-----------------------------------------------------------------
Bradley Copenheaver, Hope Copenheaver, Angel Molina, and Amanda
Molina, Individually and on behalf of all others similarly
situated v. Lumber Liquidators, Inc., a Delaware Corporation, Case
No. 1:15-cv-00959-MJG (D. Md., April 2, 2015) is brought against
the Defendants for selling to the Plaintiffs Chinese-made laminate
flooring containing hazardous levels of formaldehyde, a known
human carcinogen.
Lumber Liquidators, Inc. is a Delaware corporation headquartered
in Toano, Virginia. Lumber Liquidators supervises and controls
the manufacturing of its composite laminate wood flooring products
in several Chinese mills. Lumber Liquidators Inc., distributes,
markets, and sells laminate wood flooring products in Maryland.
The Plaintiffs are represented by:
Jay Miller, Esq.
Jeffrey J. Utermohle, Esq.
Craig M. Silverman, Esq.
LAW OFFICES OF PETER G. ANGELOS, P.C.
One Charles Center, 22nd Floor
100 North Charles Street
Baltimore, MD 21201
Telephone: (410) 649-2000
Facsimile: (410) 649-2101
E-mail: Jmiller@lawpga.com
Jutermohle@lawpga.com
Csilverman@lawpga.com
LUMBER LIQUIDATORS: Faces "Bryant" Suit in S.D. Mississippi
-----------------------------------------------------------
Colette Bryant and Gregory H. Bryant, individually and on behalf
of all others similarly situated v. Lumber Liquidators, Inc., a
Delaware corporation, Lumber Liquidators Leasing, LLC, a Delaware
limited liability corporation, Lumber Liquidators Holding, Inc., a
Delaware corporation, and Lumber Liquidators Services, LLC, a
Delaware limited liability corporation, Case No. 3:15-cv-00235-
WHB-JCG (S.D. Miss., March 27, 2015) alleges the Defendants
falsely advertised that their Chinese-manufactured laminate wood
flooring materials comply with the California Air Resources Board
regulations.
Lumber Liquidators is one of the largest specialty retailers of
hardwood flooring in the United States of America.
The Plaintiffs are represented by:
James R. Reeves, Jr., Esq.
Matthew G. Mestayer, Esq.
REEVES & MESTAYER, PLLC
P.O. Drawer 1388
Biloxi, MS 39533
Telephone: (228) 374-5151
Facsimile: (228) 374-6630
E-mail: jrr@rmlawcall.com
mgm@rmlawcall.com
LUMBER LIQUIDATORS: Faces "Bennett" Laminate Flooring Class Suit
----------------------------------------------------------------
Joe Bartels, writing for KLAS-TV Las Vegas, reports that a North
Las Vegas couple now has more reason to suspect their brand new
floors are making them sick after learning their flooring from
Lumber Liquidators tested beyond acceptable levels for a cancer-
causing chemical.
Noah Bennett's case gained national attention and he's now part of
a class action lawsuit against the discount flooring business.
Mr. Bennett said his family has been living in an RV behind their
house ever since they suspected their new floors were making them
sick. He says his health has improved and he's even gone back to
work.
Mr. Bennett's lawsuit, which was filed on March 17, is focused on
alleged fraud and deceptive trade practices on the part of Lumber
Liquidators. The brand new Chinese-made laminate flooring in his
home tested well above acceptable levels for formaldehyde.
"And then you find out that you put something in there that
possibly could hurt your family, so it does upset you a lot,"
Bennett said.
Formaldehyde is an ingredient in cheap glue that binds laminate
pieces together.
Experts say it can cause breathing problems, even cancer.
Mr. Bennett's lawyer couldn't say how much formaldehyde is in the
floors, but a CBS 60 Minutes investigation of similar flooring
from Lumber Liquidators showed -- in some cases -- it was
considerably above CARB 2 compliance.
CARB 2 is a standard that spells out how much formaldehyde is
acceptable.
"The product is marked as CARB 2 compliant, they make a
representation that it is CARB compliant and we're finding out
that it is not CARB compliant," attorney Adam Anderson said.
Mr. Bennett began installing the floors in February and within
days, he said, his family developed breathing problems and
infections. After seeing the 60 Minutes investigation two weeks
ago, he ordered air quality tests because he suspected his floors
were the reason for his family's illnesses. He also had the
floors tested.
"My emotions, once I saw that, were 'like is my floor bad? Or is
it good, do I keep doing it, do I stop?' So, it's a little
upsetting because you take a lot of pride in your home."
Armed with the new results, Mr. Bennett and his attorney filed a
federal class action lawsuit. It alleges Lumber Liquidators of
committing fraud and deceptive trade practices, among other
issues.
"I wanted this resolved," said Mr. Anderson. "The scope of
litigation is ever-changing and we really can't put a finger on
the time frame, but hopefully as quickly as possible."
Lumber Liquidators issued a statement on March 2 saying all of its
laminate flooring meets the safety standards set by regulators
throughout the U.S.
The company has about a month to respond to the federal class
action lawsuit.
LUMBER LIQUIDATORS: Faces "Oakes" Laminate Flooring Class Action
----------------------------------------------------------------
Jacqui Heinrich, writing for KTNV, reports that a valley woman
says she's out of her home over fears her floors could be
poisonous.
Rosie Oakes is suing Lumber Liquidators after seeing a report that
says she could be exposed to excessive levels of formaldehyde.
In an interview with Action News, Ms. Oakes could hardly make it
through a sentence describing her fear after she, her dog, and
husband all experienced health problems that her attorney says
could be linked to excessive levels of the chemical in her new
laminate floors.
"They're poisoning my family. I don't even know that I can stay
another day in my house," Ms. Oakes said.
It all started when Ms. Oakes saw a "60 Minutes" investigation
alleging the company's Chinese-manufactured floors have some 20
times the acceptable levels of formaldehyde, despite their
labeling which states otherwise.
Ms. Oakes had just installed nearly 700 feet of the flooring
herself without a respiratory mask, which she says she was never
told to use. Next thing she knows, her eyes are constantly
watering and so are her dog's eyes, and her husband is plagued
with respiratory problems.
Lumber Liquidators has received so much criticism since the report
that it posted a segment on it's website offering to test
formaldehyde levels for concerned customers. But Ms. Oakes'
attorney, Matthew Callister, says if Lumber Liquidators lied once,
they can't be trusted again.
"Any experienced plaintiff's council would have real trouble to
trust Lumber Liquidators to independently and accurately test,"
Mr. Callister said.
Mr. Callister and Oakes have started a class action lawsuit
against Lumber Liquidators, asking for the company to test, and if
necessary, remove and replace the tainted wood. They say there's
no telling just how many people may be affected, and have separate
sections within the lawsuit for homeowners, contractors and
installers.
Lumber Liquidators maintains on its website the allegations are
unfounded.
Customers are invited to call 1-800-366-4204 to request a kit and
have test results analyzed by an independent AIHA-accredited lab.
Customers can also contact customer relations representatives at
llcustomerrelations@lumberliquidators.com for help.
M&T BANK: Loses Bid to Stay Discovery in Mortgage Insurance Suit
----------------------------------------------------------------
Leonor Lagomasino, Esq. of Carlton Fields Jorden Burt, in an
article for JDSupra, reports that M&T Bank Corporation, M&T Bank,
and M&T Mortgage Reinsurance Company unsuccessfully sought to stay
all discovery in a suit brought against it in a putative class
action involving allegations that M&T violated the federal Real
Estate Settlement Procedures Act. The named plaintiffs were
individual borrowers who entered into loan transactions with M&T
and paid private mortgage insurance through M&T. M&T placed the
private mortgage insurance with certain insurers who then
reinsured the policies with M&T's captive reinsurer. This scheme
was allegedly an illegal sham because it did not create a bona
fide reinsurance relationship. Moving to dismiss, M&T argued the
entire case was barred under RESPA's one-year limitations period.
Plaintiffs countered that, under the doctrine of equitable
tolling, M&T's fraudulent conduct prevented them from discovering
the RESPA violation within the one-year period.
The court allowed the plaintiffs to conduct limited discovery
related to the equitable tolling argument. This ruling was in
part informed by the ruling from a different judge in a companion
case, Riddle v. Bank of America. The Riddle court subsequently
entered an order in favor of the defendants which the plaintiffs
in that case appealed. M&T thus moved for stay of all discovery
pending the outcome of the appeal of the Riddle case. The motion
was denied. Although some overlap existed, the court found that
the Riddle court had too narrowly limited the issue as to whether
plaintiffs in that case engaged in due diligence following
execution of their mortgages. Cunningham v. M&T Bank Corp., Case
No. 1:12-cv-1238 (USDC M.D. Pa. Jan. 14, 2015).
MANUFACTURER'S LIFE: Supreme Court Tosses Class Action Appeal
-------------------------------------------------------------
CanadianUnderwriter.ca reports that, after the federal government
published draft regulations on the demutualization of property &
casualty insurance companies, the Supreme Court of Canada has
dismissed an application, from plaintiffs who unsuccessfully sued
an insurer over its demutualization, for leave to appeal.
The Supreme Court of Canada dismissed an application from former
Manulife policyholders, for leave to appeal a court ruling where a
central question was rights of participating policyholders of a
mutual insurance company that demutualizes.
Last year, the Court of Appeal for Ontario upheld a 2012 decision
by the Ontario Superior Court of Justice, largely in favor of
Manufacturer's Life Insurance Company, which demutualized in 1999
and was the later the defendant in a class action lawsuit. Though
it is not a P&C firm, a "central question" in the lawsuit against
Manulife was the "rights of participating policyholders of a
mutual insurance company," the trial judge wrote.
"Such policyholders were described in various documents, including
documents published by Manulife, as the owners of the company,"
Mr. Justice Frank Newbould wrote in his 2012 ruling.
Manulife was sued by Richard Mandeville, Wismar Greaves, Marcus
Jordan and Anthony Bowen. The four plaintiffs represented about
8,000 people whose Manulife policies were transferred in 1996 to
Life of Barbados. Their lawsuit was dismissed in 2012 -- as was
their appeal to the Court of Appeal for Ontario. In September,
2014, Mandeville and his co-plaintiffs filed for leave to appeal
with the Supreme Court of Canada. They also filed for a motion to
extend the time to file and to serve the application for leave to
appeal.
On March 12, 2015, the Supreme Court of Canada announced it
granted the extension of time to serve and file the application
for leave to appeal, but dismissed with costs their leave to
appeal the ruling, by the Court of Appeal for Ontario, released
May 22, 2014.
In 1996, Manulife had sold its operations in Barbados, five years
after the federal government allowed life insurers to demutualize.
Manulife announced its intent to demutualize in 1997, two years
before it completed its demutualization. Manufacturer's Life,
which had mutualized in 1958, is now owned by Manulife Financial
Corp., which is publicly traded.
"When Manulife demutualized, its participating policyholders at
the time were paid the value of Manulife in shares or cash in the
amount of $9 billion," Justice Newbould wrote Aug. 1, 2012 of his
decision.
Canada does not currently have regulations in place for the
demutualization of P&C insurers, but it published draft
regulations Feb. 28 in the Canada Gazette.
Those regulations were published nearly a year after the ruling
Conservatives announced, in the 2014-15 budget document, that they
"would develop and consult on a proposed P&C demutualization
framework that would ensure the fair and equitable treatment of
policyholders and establish an orderly and transparent process for
demutualizing," according to a regulatory impact analysis
statement published Feb. 28.
"The federally regulated mutual P&C sector is narrow and consists
of seven companies, most of which operate rurally and regionally,"
the government stated Feb. 28 in its regulatory impact analysis
statement. "They are Wawanesa Mutual, Economical Insurance, Gore
Mutual, Portage La Prairie Mutual, North Waterloo Farmers Mutual,
Saskatchewan Mutual, and The Kings Mutual."
Wawanesa and Economical, the feds note, "rank among the top 10
largest P&C insurers in Canada, each having over $1 billion in
equity as of June 2014."
In the case of Mandeville vs. Manufacturers Life, the parties
disagreed on the plaintiffs' ownership rights, in Manulife, at the
time of the sale, of its business in Barbados, to Life of Barbados
(LOB).
"Their negligence claim was founded on their allegation that
Manulife knew it was likely going to demutualize when it
transferred its Barbados business to LOB and that it ought to have
structured the transfer in a way that protected or preserved the
class members' rights to share in the value of Manulife on
demutualization," wrote Madam Justice Eileen Gillese of the Court
of Appeal for Ontario in 2014.
Mandeville and his co-plaintiffs accepted that the rights of the
Barbados policyholders "were extinguished by the sanction of the
Supervisor of Insurance in Barbados, but contend that Manulife was
obliged before taking the steps leading to that sanction to take
steps to protect the rights of the plaintiffs," Justice Newbould
wrote in 2012.
But Justice Newbould dismissed the lawsuit based on his finding
that Manulife had no duty of care, to the Barbados policyholders,
"to take steps at the time of the transfer to LOB to enable them
to participate in the distribution of Manulife's value on a future
demutualization."
But he added that if Manulife did have a duty of care to protect
the Barbados policyholders' rights to participate in a future
demutualization, then Manulife "did not take reasonable steps to
protect those rights and breached the standard of care required."
Had he found Manulife liable, "the trial judge would have ordered
Manulife to pay damages of approximately $82 million, plus
interest," Justice Gillese wrote in 2014.
The Court of Appeal for Ontario found that members of the class
represented by the Mandeville and his four co-plaintiffs "had no
legally recognized right, claim or interest to share in the value
of Manulife on a future demutualization," Justice Gillese wrote.
"At most, they had a hope or mere expectancy that if and when
Manulife could and did demutualize, they would still be
participating policyholders and therefore have a right to share in
that value."
The other two appeal court judges hearing the case -- Chief
Justice George Strathy and Mr. Justice Robert Blair -- agreed.
MICROSOFT CORP: Must Face Class Action Over Xbox Defect
-------------------------------------------------------
Jonathan Stempel, writing for Reuters, reports that Microsoft Corp
must face class action claims by Xbox 360 owners who say the video
game console has a design defect that causes game discs to be
gouged, a federal appeals court ruled on March 18.
The 9th U.S. Circuit Court of Appeals in Seattle said a lower
court judge misapplied the law in finding that Xbox owners in the
United States could not sue for damages as a group. It did not
decide whether a class action should be certified.
Class actions can lead to larger damages or broader remedies than
individual lawsuits, which can be costly to pursue.
Microsoft has sold tens of millions of Xbox 360 consoles since
their Nov. 2005 launch.
But owners have claimed that the console's optical disc drive
cannot withstand even small vibrations. They said this causes
game discs to spin out of control and become scratched even under
normal playing conditions, rendering them unplayable.
Microsoft countered that class certification was improper because
just 0.4% of Xbox owners reported disc scratches, and that misuse
was the cause.
In March 2012, U.S. District Judge Ricardo Martinez in Seattle
dismissed the class-action claims. He relied on a 2009 ruling in
a similar case in which another judge said the dearth of
complaints ruled out class certification.
But the 9th Circuit reversed the decision underpinning that ruling
in 2010, in a case addressing whether a suspected defect caused
premature tire wear in Land Rover vehicles.
The appeals court said Martinez did not properly take this
reversal into account when he deferred to the 2009 ruling.
"Plaintiffs' breach of express warranty claim presents a common
factual question-is there a defect?-and a common mixed question of
law and fact-does that defect breach the express warranty?"
Circuit Judge Johnnie Rawlinson wrote for the appeals court. "The
district court erred in finding that individual issues of
causation predominate over these common questions."
The 9th Circuit returned the case to Martinez for further
proceedings.
"We've won in the lower court previously and believe the facts are
on our side," said a spokesman for Microsoft, which is based in
Redmond, Washington.
Benjamin Gould, a lawyer for the plaintiffs, said his clients are
pleased with the decision.
The case is Baker et al v. Microsoft Corp, 9th U.S. Circuit Court
of Appeals, No. 12-35946.
NBCUNIVERSAL INC: Former Intern Challenges Class Action Deal
------------------------------------------------------------
Matthew Bultman and Ben James, writing for Law360, report that a
former NBCUniversal Inc. intern blasted a proposed $6.4 million
deal to resolve a putative class and collective action claiming
unpaid interns at MSNBC and Saturday Night Live should have been
compensated, calling the settlement unfair and inadequate.
Dina Agusta said it "puzzles" her how attorneys for the class
thought the agreement was appropriate when it would pay about $500
for each internship in which a class member participated.
Ms. Agusta said she interned twice for NBCUniversal in
Connecticut, working a total of about 416 hours. At most, she
said she is in line to receive roughly $1,000 from the settlement,
which would amount to an hourly rate of about $2.40.
"If my counsel believes 'this settlement is fair and appropriate
under the circumstances, and in the best interests of the class
members,' . . . then I say its time to change counsel," she said.
NBCUniversal revealed in October court filings that it had reached
a deal to settle the 2013 lawsuit, paying just more than $6.4
million. That pot would be distributed to more than 7,700 class
members and cover the cost of attorneys' fees.
U.S. District Judge Ronald L. Ellis granted preliminary approval
of the settlement in December and a final approval hearing has
been set for May 4.
In her letter, Ms. Agusta said she doesn't want to opt-out because
she would lose her standing to object. But she said a deal that
would pay her about 29 percent of Connecticut's minimum wage was
woefully inadequate. She said her father, an attorney, plans to
represent her free of charge at the May hearing, adding she would
be willing to risk "the low ball offer" and go to trial.
"My father tells me that if he advised his clients (he has a small
collection practice) to accept less than one-third of the amount
due on 'strong claims' that he would be immediately fired (but
only after the clients stopped laughing long enough to catch their
breath to say 'you're fired')," she said.
When named plaintiffs Monet Eliastam and Jesse Moore filed the
suit, they added NBCUniversal to the list of media and
entertainment companies which had been targeted in a wave of cases
brought by interns over wages.
Their complaint pointed out that U.S. District Judge William
Pauley had granted class certification and held that two ex-
interns were employees protected by the Fair Labor Standards Act
and New York Labor Law the month before. That ruling is currently
on appeal to the Second Circuit.
Ms. Eliastam's duties on "Saturday Night Live" included obtaining
and completing paperwork for extras, filing, going on errands to
get props, food and coffee, and "locking down" sets to make sure
no one disturbed the shooting of scenes, the suit said.
From January to May 2012 she spent about two days per week working
a total of approximately 25 hours, and from September to December
2012 she spent about 3 days and 27 hours per week on the alleged
internship, she said.
Attorneys at Outten & Golden LLP represent the class in the
instant matter.
The plaintiffs are represented by Justin M. Swartz and Juno Turner
of Outten & Golden LLP.
NBCUniversal is represented by Sam Shaulson and Russell Bruch of
Morgan Lewis & Bockius LLP and in-house lawyer Hilary Lane.
The case is Moore v. NBCUniversal Inc., case number 1:13-cv-04634,
in the U.S. District Court for the Southern District of New York.
NEWARK HOUSING: Accused of Mistreating Ex-Coordinator in N.J.
-------------------------------------------------------------
Cheryl Goins v. Newark Housing Authority, Case No. 2:15-cv-02195-
KM-SCM (D.N.J., March 27, 2015) alleges violations of, among other
laws, the Fair Labor Standards Act.
Ms. Goins was employed by the NHA from October 9, 2012, until
September 2014. Her job was Coordinator of Operation Contracts.
She alleges that when she refused to gloss over the illegal
inadequacies in contracts, her boss Shari Hamilton mistreated her,
which mistreatment constitutes retaliatory harassment.
Newark Housing Authority is a government agency in Essex County,
New Jersey.
The Plaintiff is represented by:
Elizabeth T. Foster, Esq.
ELIZABETH T. FOSTER, ATTORNEY AT LAW, LLC
NJ Bar 009152006
22 E. Quackenbush Ave.
Dumont, NJ 07628
Telephone: (201) 290-5761
Facsimile: (201) 215 9574
E-mail: liztlaw@gmail.com
- and -
Gareth David deSantiago, Esq.
211 Graphic Boulevard
New Milford, NJ 07646
Telephone: (973) 689-5638
Facsimile: (201) 265-1204
E-mail: garethdes1980pennlawgrad@verizon.net
NEXTEL COMMUNICATIONS: 2nd Cir. Vacates Class Certification Order
-----------------------------------------------------------------
Clifton Gruhn, Esq., and Ben Seessel, Esq., of Carlton Fields
Jorden Burt, in an article for JDSupra, reports that the Second
Circuit vacated a class certification order issued by the Southern
District of New York, finding that Rule 23(b)(3)'s predominance
and superiority requirements could not be met given the necessity
of applying 27 states' laws to putative class claims for breach of
fiduciary duty, legal malpractice and breach of contract. The
case involved a "novel approach to dispute resolution that
continues to provoke a debate among experts in legal ethics." The
plaintiffs were 587 employees of Nextel Communications, Inc.,
hailing from 27 states, who entered into retainer agreements, most
of them in writing, with the law firm Leeds, Morelli & Brown
("LMB") regarding their employment discrimination claims against
Nextel. Rather than file suit, LMB arranged a dispute resolution
process to settle the plaintiffs' claims en masse with Nextel,
which, in turn, provided LMB certain monetary guarantees for
resolving the plaintiffs' claims within a specified time. LMB
obtained conflict of interest waivers from most of the plaintiffs
during the process of settling with Nextel.
Following conclusion of the dispute resolution process, the
plaintiffs, on behalf of all Nextel employees represented by LMB,
brought suit against LMB and Nextel. The plaintiffs in the
instant case, opt outs from other class action litigation that had
settled, alleged that LMB breached its fiduciary duties to the
class, committed malpractice, breached retainer agreements, and,
further, that Nextel aided and abetted LMB's misconduct. In
granting the plaintiffs' motion for class certification, the
district court found that New York law applied to all the
plaintiffs' claims. After the parties stipulated to dismissal
with prejudice of claims against LMB, Nextel appealed.
The Second Circuit found that "there are undoubtedly common issues
present in this case that will affect the liability determination
for all members of the class" including the nature of the
settlement agreement with plaintiffs and Nextel's role in
negotiating and executing it. Applying the Restatement's
"significant relationship" test, however, the court determined
that the laws of each class member's home state needed to be
applied to both the tort and contract claims. Given the need to
apply 27 different state laws, the court held that "the case for
finding the predominance of common issues and the superiority of
trying this case as a class action diminishes to the vanishing
point."
Regarding the tort claims for malpractice and breach of fiduciary
duty, the law of some class members' home state allowed the
plaintiffs to waive LMB's conflict, while the law of other class
members' home state did not. Moreover, determining whether a
waiver was legally effective in at least one state (where 25% of
the class members resided) would involve a factually intensive
inquiry with respect to each putative class member. According to
the court, such an inquiry was "so individualized and client-
specific" that even creating a subclass for problematic states
"would not achieve any economies of scale." The court further
held that the waiver issue was also critical to resolving the
plaintiffs' breach of retainer agreement claims given the law in
the various states and, as a result, individualized issues would
overwhelm common ones. The court thus concluded that common
issues do not predominate and that resolution by a class action is
not superior, vacated the district court's certification order and
remanded the case for further proceedings.
Johnson v. Nextel Commc'ns, Inc., No. 14-454 (2d Cir. Mar. 4,
2015).
NIAGARA CREDIT: Violates Fair Debt Collection Act, N.J. Suit Says
-----------------------------------------------------------------
Rachel Grandovsky, on behalf of herself and all others similarly
situated v. Niagara Credit Solutions, Inc., Case No. 3:15-cv-
02331-PGS-TJB (D.N.J., April 2, 2015) seeks relief under 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
NNS TRADING: Fails to Pay Proper Overtime Wages, Fla. Suit Claims
-----------------------------------------------------------------
Guesly Saint Hilaire v. NNS Trading Inc. and Ilan Shimon, Case No.
1:15-cv-21279-JAL (S.D. Fla., April 2, 2015) alleges that the
Plaintiff earned but did not receive overtime wages calculated at
time and one-half times his regular rate of pay for all time spent
working over 40 hours per week from the Defendants.
NNS Trading Inc. is a sui juris Florida for-profit business with
its principal place of business and registered agent in Miami-Dade
County, Florida. Ilan Shimon is the owner, operator or president
of the Corporate Defendant. The Defendants are engaged in the
business of retail sales of footwear and apparel.
The Plaintiff is represented by:
Brian H. Pollock, Esq.
FAIRLAW FIRM
8603 S. Dixie Highway, Suite 408
Miami, FL 33143
Telephone: (305) 230-4884
Facsimile: (305) 230-4844
E-mail: brian@fairlawattorney.com
NORTH CAROLINA: "Rutledge" Sex Discrimination Case Dismissed
------------------------------------------------------------
District Judge James A. Beaty, Jr. of the Middle District of North
Carolina granted defendant's motion in the case AMELIA H.
RUTLEDGE, Plaintiff, v. NORTH CAROLINA DEPARTMENT OF REVENUE,
Defendant, NO. 1:14CV45 (M.D.N.C.)
Amelia H. Rutledge was an employee of the defendant North Carolina
Department of Revenue. Plaintiff filed her original complaint on
December 19, 2012 and the same was amended alleging a claim for
sex discrimination and a hostile work environment claim under
Title VII of the Civil Rights Acts of 1964. Plaintiff's claims
arose from matters associated with her employment with defendant.
Specifically, plaintiff alleged that certain adverse employment
actions were taken against her when plaintiff complained about the
promotion of Scotty Miller, a male employee in her division.
Plaintiff asserted that after she complained to the director of
her division, Alan Woodard, she was demoted and became subject to
an increased level of hostility.
Plaintiff asserted that she was demoted because she no longer has
any supervisory responsibility. Plaintiff stated that prior to her
complaints concerning Miller's promotion, 60% of her job
description was in the form of providing supervision. In further
explanation of this alleged discrimination, plaintiff asserted
that the actions were taken against her because of her sex.
Defendant seeks dismissal of plaintiff's amended complaint
pursuant to Rule 12(b)(6), arguing that plaintiff has failed to
state sufficient facts to state a plausible claim for sex
discrimination or a hostile work environment claim.
District Judge Beaty granted defendant's motion to dismiss. A
copy of Judge Beaty's memorandum opinion and order dated February
25, 2015, is available at http://is.gd/JrFzhAfrom Leagle.com
AMELIA H RUTLEDGE, Plaintiff, represented by CARLOS DONNELL
WATSON, WATSON LAW FIRM
NORTH CAROLINA DEPARTMENT OF REVENUE, Defendant, represented by
PEGGY S. VINCENT, N. C. DEPARTMENT OF JUSTICE
NORTHLAND GROUP: Violates Fair Debt Collection Act, Suit Claims
---------------------------------------------------------------
Zissey Holczler, on behalf of herself and all other similarly
situated consumers v. Northland Group, Inc., Case No. 1:15-cv-
01747 (E.D.N.Y., April 1, 2015) alleges violations of 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
NORTHWESTERN MUTUAL: Settles Annuities Class Action for $84 Mil.
----------------------------------------------------------------
Ben Conarck, writing for Law360, reports that Northwestern Mutual
Life Insurance Co. ended a six-and-a-half-year class action legal
battle in Wisconsin federal court on March 16 when it agreed to a
preliminary $84 million settlement with annuities owners over
allegations that the company wrongfully tweaked the program in
1985, unfairly diminishing the value of the investments.
Class plaintiffs, consisting of 33,000 past and current owners of
Northwestern annuities, contended that a change in the way the
company determined dividends for the investments diminished their
value, in violation of Wisconsin law. Northwestern media director
Betsy Hoylman said that the lawsuit was settled to avoid legal
costs and the uncertainty of the legal process.
"This lawsuit was a case of a small group of customers seeking
more than their fair share of dividends, which would have come at
the expense of all our other policy owners," Ms. Hoylman said.
"We are proud of the significant dividends we have paid to this
group over the years, and believe our actions have been right,
fair and in the best interest of all of our policy owners,
including these annuity owners."
The $84 million sum would be split among class members after costs
for class notice, administration, attorneys' fees and expenses are
deducted, according to the plaintiff's memo in support of the
settlement. Eligible claimants will receive at least $250, though
"many claimants will receive substantially more," the memo said.
According to the memo, class members will be divided into three
groups based on how long they held their annuities during the
class period. Plaintiffs had estimated compensatory damages in the
range of $100 million to $278 million, the memo said.
George Kersten of Kersten & McKinnon SC, an attorney for the
plaintiffs, described the settlement as a "fair resolution of a
complex case.
"It will be especially beneficial to the majority of annuitants,
who are in or approaching retirement," Mr. Kersten said.
The first lawsuit to take aim at the 1985 policy tweak was brought
by Catherine and Daniel Noonan, who never won class certification,
according to the memo in support of the settlement. That case is
still pending in state court, but is stayed by an agreement, the
memo said.
The settlement stems from subsequent legal action initiated by
Marleen LaPlant, who commenced declaratory judgment in Wisconsin
state court in August 2008, according to the memo. After
plaintiffs in that suit won class certification, they moved to
expand the class, prompting Northwestern to remove the case to
federal court, the memo said.
Plaintiffs were granted a motion to remand, but that decision was
later reversed by the Seventh Circuit, the memo said.
Subsequently, plaintiffs and Northwestern were in dispute over
class certification, and set to argue on those grounds in May
2014, but the argument was stayed to allow mediation talks that
eventually led to the settlement, the memo said.
The negotiations stretched for more than four months before
leading to a memorandum of understanding in September 2014, which
led to six more months of negotiations before the current
settlement was reached, according to the memo.
Plaintiffs are represented by David Boies of Boies Schiller &
Flexner LLP, George P. Kersten, E. Campion Kersten and Kenan J.
Kersten of Kersten & McKinnon SC, David Boies III, Timothy D.
Battin and Christopher Le -- cle@straus-boies.com -- of Straus &
Boies LLP, Jeffrey A. Bartos -- jbartos@geclaw.com -- of Guerrieri
Clayman Bartos & Parcelli PC and Mark B. Pollack of Galanis
Pollack Jacobs & Johnson SC.
Northwestern is represented by John M. Hughes --
john.hughes@bartlit-beck.com -- Sean C. Grimsley --
sean.grimsley@bartlit-beck.com -- and Adam L. Hoeflich of Bartlit
Beck Herman Palenchar & Scott LLP and Joshua D. Maggard --
joshua.maggard@quarles.com -- and Eric J. Van Vugt of Quarles &
Brady LLP.
The case is LaPlant v. Northwestern Mutual Life Insurance Company,
case number 2:11-cv-00910, in the U.S. District Court for the
Eastern District of Wisconsin.
NOVARTIS CORP: Faces $110MM Gender Discrimination Class Action
--------------------------------------------------------------
Daniel Wiessner, writing for Reuters, reports that a $110 million
lawsuit filed on March 17 claims a U.S. division at Swiss
drugmaker Novartis has routinely denied female employees equal pay
and promotion opportunities, five years after the pharmaceutical
giant was hit with a nine-figure jury verdict over similar claims.
The proposed class action filed in U.S. federal court in Manhattan
says Texas-based Alcon Laboratories Inc, which was acquired by
Novartis in 2010, maintains a "boy's club atmosphere" that is
hostile to women and bars them from leadership positions.
Novartis spokeswoman Elizabeth Power said Alcon disagreed with the
allegations.
"The company is deeply committed to equal employment opportunity
for all employees and to preventing discrimination," Ms. Power
said.
A U.S. jury in 2010 ordered Novartis to pay more than $250 million
in a separate class action that alleged widespread gender
discrimination. At the time, it was the largest award in an
employment discrimination case in U.S. history.
The company at the time said it would adopt reforms to prevent
discrimination and retaliation against employees who complained.
The plaintiffs in the March 17 lawsuit, Elyse Dickerson and Susan
Orr, say the company violated Title VII of the Civil Rights Act of
1964, which prohibits gender discrimination by employers, and the
U.S. Equal Pay Act.
"For years, the company paid them less than similarly situated
men, discriminated against them in assignments and other career-
enhancing opportunities, and denied them promotions in favor of
. . . men," the lawsuit says.
Ms. Dickerson said she was fired from her post as a global
director for complaining about inequities at the company, and is
seeking $10 million and her job back.
Ms. Orr, a research scientist, said the lack of promotions forced
her to resign and is seeking at least $100 million on behalf of a
proposed class of thousands of female Alcon employees.
In its most recent annual report released in January, Novartis
said it has "continued to focus on the promotion of women." The
March 17 lawsuit, however, claims the company has no plan in place
to address gender issues at Alcon.
Ms. Dickerson and Ms. Orr are represented by the national class
action law firm Sanford Heisler Kimpel, which brought the earlier
lawsuit against Novartis.
The case is Dickerson v. Novartis Corp, U.S. District Court for
the Southern District of New York, No. 1:15-cv-1980.
OHIO: Supreme Court Hears Oral Arguments in Speed Camera Case
-------------------------------------------------------------
TheNewspaper.com reports that Ohio Supreme Court hears oral
arguments in a case over sending photo tickets to the drivers of
leased vehicles.
The Ohio Supreme Court is a big fan of red light cameras and speed
cameras. It ruled last year that cities could create their own
judicial panels and in 2008 that it did not matter that the
General Assembly refused to authorize speed cameras. Defense
attorneys think that they have finally found a case where the high
court justices cannot come to the rescue.
The justices heard oral arguments in a case that centers on
whether cities such as Cleveland can hold the "owner" of a leased
vehicle responsible for a photo ticket when the legal owner of the
vehicle is a financial institution.
Janine Lycan filed a class action lawsuit in 2009 over the $100
ticket that Affiliated Computer Services (ACS, now Xerox) mailed
to her claiming that she had to pay up. Ms. Lycan countered that
Cleveland's original camera ordinance only allows vehicle owners
to be fined, and she does not hold the title to the vehicle. City
officials insisted Ms. Lycan could not bring the case because she
and other leased vehicle drivers wrote a check to avoid having the
ticket sent to a collections agency.
"They voluntarily paid," Cleveland's chief counsel, Gary S.
Singletary, said. "They did not contest. They did not seek
administrative appeal."
Some of the justices wondered whether a ruling that individuals
could not sue after paying a ticket ends up granting a sort of
blanket immunity to localities.
"So there's no subset of individuals who could ever bring a class
action?" Justice Paul E. Pfeiffer asked. "We have those who waive
their right to appeal, they can't bring a class action. We have
those who exercise their appellate rights, and so there's finality
to those, and no class action there. So that leaves no one,
right?"
Paul W. Flowers, the lawyer for Ms. Lycan, quoted testimony from
the Cleveland official who admitted that the city knowingly
ticketed lessees without authority.
"Ms. Vargas said, very clearly in her deposition that everyone was
going to lose those administrative challenges because that was
their policy," Mr. Flowers said.
Mr. Flowers also argued that the arguments about the legality of
an ordinance cannot be made to the non-lawyer administrative
hearing officers who decide guilt in red light camera and speed
camera cases. Class action lawsuits, he said, are the only
realistic way to obtain justice in such cases.
"That's just fantasy to say that these people who owe $100 are
going to pay another $100 filing fee, they're going to hire a
lawyer, go through all that one at a time, and the courts are
going to be able to handle these one at a time, and that's how
we're going to get relief," Mr. Flowers said.
Ms. Lycan filed the lawsuit in the hopes of forcing cities to
abide by state law.
"This case really boils down to responsible government,"
Mr. Flowers said. "Are we going to expect municipalities to abide
by their own ordinances, cite people only when they're entitled to
cite people, and then expect them to issue refunds when they
exceed their authority. That's really what this case is about."
OKLAHOMA STATE UNIVERSITY: Sued Over Discrimination Claims
----------------------------------------------------------
United States of America v. Southeastern Oklahoma State
University, and The Regional University System of Oklahoma, Case
No. 5:15-cv-00324-C (W.D. Okla., March 30, 2015) is brought on
behalf of the United States to enforce the Civil Rights Act of
1964.
The United States alleges that the Defendants subjected Dr. Rachel
Tudor, a professor who is transgender, to unlawful sex
discrimination and retaliation in violation of the Civil Rights
Act.
Dr. Tudor is a male-to-female transgender English professor, who
worked for Southeastern as a tenure track Assistant Professor from
2004 to 2011. Dr. Tudor was the first transgender professor ever
to work at Southeastern.
Southeastern is a member of the Oklahoma state system of higher
education and is part of the Regional University System of
Oklahoma. RUSO's Board of Regents is the governing board for
several Oklahoma state universities, including Southeastern.
The Government is represented by:
Vanita Gupta, Esq.
Delora L. Kennebrew, Esq.
Meredith L. Burrell, Esq.
Allan K. Townsend, Esq.
EMPLOYMENT LITIGATION SECTION
CIVIL RIGHTS DIVISION
UNITED STATES DEPARTMENT OF JUSTICE
950 Pennsylvania Avenue, NW
Patrick Henry Building, Fourth Floor
Washington, DC 20530
Telephone: (202) 616-9100
Facsimile: (202) 514-1005
E-mail: meredith.burrell@usdoj.gov
delora.kennebrew@usdoj.gov
Allan.Townsend@usdoj.gov
PHILIP MORRIS: SC Won't Disqualify Karmeier from Tobacco Suit
-------------------------------------------------------------
Ann Maher and Bethany Krajelis, writing for Legal Newsline, report
that the Illinois Supreme Court has once again refused to
disqualify Justice Lloyd A. Karmeier from reviewing the $10.1
billion Price v. Philip Morris tobacco case.
In an announcement posted March 11, the Court denied a second
request made by St. Louis attorney Stephen Tillery to keep Justice
Karmeier from participating in impending proceedings of the
decade-old light cigarette labeling case. The Court also
indicated that a motion for his recusal has been referred to
Justice Karmeier.
The Price case has been bouncing between the state's courts ever
since former Madison County circuit judge Nicholas Byron in 2003
handed down a $10.1 billion bench verdict against Philip Morris in
a lawsuit Mr. Tillery brought in 2000 on behalf of consumers who
alleged they were deceived by the company's use of "light" and
"low tar" labeling.
Justice Karmeier was one of four justices who made up the majority
in the Price ruling. Two justices dissented and one did not
participate. In 2005, the Illinois Supreme Court threw out the
multi-billion dollar judgment after determining the tobacco giant
couldn't be held liable under the state's Consumer Fraud Act for
using those terms because the Federal Trade Commission (FTC)
allowed them.
On behalf of the plaintiffs, Mr. Tillery revived the case in 2008
by filing a petition under Section 2-1401 of the Illinois Code of
Civil Procedure, seeking relief from the Supreme Court's dismissal
of the verdict based on newly-discovered evidence.
Madison County Circuit Judge Dennis Ruth refused to reopen to the
case in late 2013, and after the high court rejected Philip
Morris' request for a direct appeal, the Fifth District Appellate
Court last April reversed Ruth's denial, effectively reinstating
the $10.1 billion bench verdict.
The high court in September granted the tobacco company's appeal
of the Fifth District ruling and on the same day it agreed to hear
arguments in the case, Justice Karmeier penned an order to explain
why he was denying the plaintiffs' recusal request.
In November, Justice Karmeier was retained by southern Illinois
voters to a second 10-year term, in spite of a last minute, $2
million negative campaign funded in large part by associates of
Mr. Tillery.
On Feb. 9, the plaintiffs filed a second request for the justice's
recusal or disqualification, alleging that comments attributed to
Justice Karmeier on election night in a downstate newspaper
article allegedly show he intends to vote against them and thus,
requires him to bow out of the court's impending review.
Philip Morris responded to Mr. Tillery's renewed motions for
recusal and disqualification on Feb. 26.
"Having failed to defeat Justice Karmeier at the polls, plaintiffs
have filed another motion to recuse or disqualify him that is just
as cynical and dishonest as their first motion was," Philip
Morris' memo stated. "Remarkably, plaintiffs say nary a word about
the $2 million campaign their lawyers spearheaded to defeat
Justice Karmeier's retention effort- a campaign so vicious and
deceptive that a federal judge described it as an 'affront to an
independent judiciary.'"
In Justice Karmeier's previous order he made it clear he wasn't
going to step aside because he believed the plaintiffs failed to
provide any evidence to back up their claims he voted to overturn
the verdict because Philip Morris funneled donations to his 2004
campaign coffers.
It is unclear when the Illinois Supreme Court will hear arguments
in the Price case.
Justice Karmeier and Justice Robert Thomas did not participate in
the decision denying disqualification.
Philip Morris' recent memo was filed by Chicago attorney
Michele Odorizzi -- modorizzi@mayerbrown.com -- of Mayer Brown,
who is representing the company along with James R. Thompson,
George C. Lombardi and Matthew R. Carter of Winston & Strawn in
Chicago; Larry Hepler -- lhepler@heplerbroom.com -- and Beth Bauer
of HeplerBroom in Edwardsville; Kevin M. Forde of Forde Law
Offices in Chicago and Washington D.C. attorneys Lisa S. Blatt and
Sarah M. Harris.
Besides Mr. Tillery, the plaintiffs in Price are being represented
by Robert L. King -- rking@koreintillery.com -- George A. Zeles,
Maximilian C. Gibbons and Matthew C. Davies --
mdavies@koreintillery.com -- of Korein Tillery in St. Louis;
Joseph A. Power Jr. of Power Rogers & Smith in Chicago; and South
Carolina attorneys Michael J. Brickman and Nina Hunter Fields.
PHILIP MORRIS: Class Certification Order in "Miner" Upheld
----------------------------------------------------------
Associate Justice Rhonda K. Wood of the Supreme Court of Arkansas
affirmed a circuit court order in the case PHILIP MORRIS
COMPANIES, INC., a corporation and PHILIP MORRIS INCORPORATED, a
corporation, APPELLANTS, v. WAYNE MINER and JAMES EASLEY,
individually and on behalf of all others FOX, similarly situated,
APPELLEES, NO. CV-14-193 (Ark.)
Wayne Miner and James Easley filed a class-action complaint
against Philip Morris Companies Inc. and Philip Morris
Incorporated. Plaintiffs alleged, on their behalf and for others
similarly situated, that Philip Morris violated the Arkansas
Deceptive Trade Practices Act (ADTPA) by falsely representing that
its Marlboro Lights cigarettes were healthier and contained less
tar and nicotine than regular cigarettes.
Plaintiffs argued that the circuit court should certify a class to
bring the ADTPA claim against Philip Morris. After a hearing, the
circuit court agreed with plaintiffs and certified the following
class:
All persons who purchased Defendants' Marlboro Light [or Ultra
Light] cigarettes in Arkansas for personal consumption from
November 1, 1971, through June 22, 2010. Excluded from the Class
are Defendants, any parents, subsidiary, affiliate, or controlled
person of Defendants, as well as the officers, directors, agents,
servants, or employees of Defendants, and the immediate family
members of such persons.
Philip Morris appealed.
Associate Justice Wood affirmed the circuit court's order
certifying the class, expressing that the circuit court did not
abuse its discretion in certifying the class. A copy of Associate
Justice Wood's opinion dated February 26, 2015 is available at
http://is.gd/v8GOx8from Leagle.com.
R.T. Beard, III -- rbeard@mwlaw.com -- at Mitchell, Williams,
Selig, Gates & Woodyard, P.L.L.C.; Lisa S. Blatt --
Lisa.Blatt@aporter.com -- John C. Massaro --
John.Massaro@aporter.com -- David E. Kouba --
David.Kouba@aporter.com -- at Arnold & Porter LLP, for appellants
Thomas P. Thrash -- Marcus Neil Bozeman -- at Thrash Law Firm,
P.A.; John W. "Don" Barrett -- Brian K. Herrington --
info@barrettlawgroup.com -- at Don Barrett, P.A.; Ben Barrow --
Erich Schork -- at Barnow & Associates, for appellees
Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for
amicus curiae Arkansas Trial Lawyers Association
Kitterman Law Firm, P.A., by: Gregory S. Kitterman; and Elliott &
Smith Law Firm, by: Don R. Elliott, Jr.,for amici curiae Tobacco-
Free Kids, American Lung Association, and American Cancer Society
Cancer Action Network
Kutak Rock LLP, by: Jess Askew III, for amicus curiae Arkansas
State Chamber of Commerce
PHOTOMEDEX INC: July 20 Settlement Fairness Hearing Set
-------------------------------------------------------
Shepherd, Finkelman, Miller & Shah, LLP on March 19 disclosed that
the United States District Court for the Eastern District of
Pennsylvania has approved the following announcement of a proposed
class action settlement that would benefit purchasers of
PhotoMedex, Inc. securities.
TO: ALL PERSONS OR ENTITIES WHO PURCHASED THE SECURITIES OF
PHOTOMEDEX, INC. BETWEEN NOVEMBER 6, 2012 AND NOVEMBER 5, 2013,
INCLUSIVE
YOU ARE HEREBY NOTIFIED, pursuant to an Order of the United States
District Court for the Eastern District of Pennsylvania, that this
case has been certified as a class action for settlement purposes
only, and a settlement with PhotoMedex, Dennis McGrath and Dolev
Rafaeli in the amount of $1,500,000 has been proposed by the
Settling Parties. A hearing will be held before the Honorable
Paul S. Diamond, United States District Court for the Eastern
District of Pennsylvania, 601 Market Street, Philadelphia, PA,
Courtroom 6613 at 9:30 a.m., on July 20, 2015 to determine, among
other things: (i) whether the proposed settlement of this class
action and the Plan of Allocation of settlement proceeds should be
approved by the Court as fair, reasonable, and adequate; (ii)
whether, thereafter, this Litigation should be dismissed with
prejudice as set forth in the Stipulation and Agreement of
Settlement, dated as of January 9, 2015; and (iii) to consider the
application of Plaintiffs' Counsel for attorneys' fees and
reimbursement of expenses, and to consider the application for
reimbursement of expenses (including lost wages) of the Lead
Plaintiff. The Court has reserved the right to reschedule the
hearing without further notice.
All capitalized terms not otherwise defined in this Summary Notice
shall have the meanings provided in the Stipulation.
IF YOU ARE A MEMBER OF THE CLASS DESCRIBED ABOVE, YOUR RIGHTS WILL
BE AFFECTED AND YOU MAY BE ENTITLED TO SHARE IN THE SETTLEMENT
FUND. If you have not yet received the full printed Notice of
Pendency and Proposed Settlement of Class Action and a Proof of
Claim form, you may obtain copies of these documents by calling
(866) 274-4004 or writing to the Claims Administrator at:
PhotoMedex Shareholder Litigation
Claims Administrator
c/o Strategic Claims Services
600 North Jackson Street, Suite 3
Media, PA 19063
You may also download a claim form from www.strategicclaims.net.
If you are a member of the Settlement Class and wish to share in
the Settlement proceeds, you must submit a proper Proof of Claim
to the Claims Administrator postmarked or received no later than
September 10, 2015 establishing that you are entitled to recovery.
As further described in the Notice, if you are a Class Member and
do not exclude yourself from the Class, you will be bound by the
Final Judgment of the Court regardless of whether you submit a
Proof of Claim. To exclude yourself from the Class, you must
submit a request for exclusion postmarked no later than June 18,
2015 to the Claims Administrator. If you are a Class Member and
do not submit a proper Proof of Claim or elect to exclude yourself
from the Class, you will not share in the Settlement, but you
nevertheless will be bound by the Final Judgment of the Court.
Any objection to the Settlement must be filed with the court at
the address below and served by hand or first class mail on the
attorneys listed below on or before June 18, 2015:
Court:
CLERK OF THE COURT
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
U.S. Courthouse
Room 2609
601 Market Street,
Philadelphia, PA 19106-1797
Lead Counsel for Plaintiffs:
James C. Shah
Shepherd, Finkelman, Miller & Shah, LLP
35 East State Street
Media, PA 19063
Counsel for the Defendants:
William P. Quinn, Jr.
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, PA 19103-2921
Further information may be obtained by directing your inquiry to
the Claims Administrator at the same address and telephone number
noted above.
PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE ABOUT THIS
NOTICE.
DATED: MARCH 11, 2015
BY ORDER OF THE COURT
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
PICKVEST: Class Action Lawyers Defend Opt-Out Provision
-------------------------------------------------------
Hanna Barry, writing for Moneyweb, reports that lawyers bringing
the class action application on behalf of the 18 000-odd investors
in Highveld Syndications 15 to 22, the property syndication
companies promoted by Pickvest, have defended their decision to
automatically include all investors in the application and require
individual investors to opt out should they not want to be a part
of the action.
Having debated with senior legal counsel and researched class
actions internationally, Theron & Partners -- the lawyers bringing
the application on behalf of investors -- say class actions are
rarely started on an opt in basis. In other words, where those
concerned must actively opt into the action before their claims
are included.
"We understand that such an option will be more suitable where the
class is not easily identifiable. In the Highveld Syndication
matters, the classes are easily identifiable," explains
Marina Verdoes of Theron & Partners.
All the individuals concerned in this matter invested some amount
of money -- an average of R250 000 per investor, according to the
attorneys -- in one or more of property syndication companies,
Highveld Syndications 15 to 22.
If a class action was certified, by way of example, for HS 19 to
22 (which collectively have 9 000 investors) and investors were
then given 30 days to opt in, Ms. Verdoes points out that this
would create an "administrative conundrum".
Perhaps more importantly, explains attorney and head of the class
action Jacques Theron, the claims of investors -- many of whom are
pensioners who may not yet be aware of the action -- might
prescribe before the message of the action reaches them.
On the other hand, notes Ms. Verdoes, "If opting out is
applicable, a few investors opting out over the period [30 days]
would be much easier to handle".
"If the certificate is granted and the court endorses the opt out
option, investors will be afforded 30 days within which to
indicate whether they do not want to join the class action," she
continues. "As part of the relief sought in the certification
application, we have requested a list of all investors from the
business rescue practitioner and will therefore be in a better
position to contact investors directly."
All this would seem to make the 'opt-out' basis of the class
action a much safer option.
'Investor support driving the action'
Reshana Pillay -- reshana.pillay@hoganlovells.com -- partner at
law firm Hogan Lovells, agrees the class action lawyers are
"playing it safe" by launching the action on an opt-out basis.
"It is however important for people to know whether or not they
fall within the class definition so that they know whether they
should either opt in or out," Ms. Pillay says.
"If they opt out there is nothing that prevents them from pursuing
their individual claim," she notes.
According to Ms. Verdoes, however, "a large number of the
claimants are pensioners who cannot afford to litigate in person
against large companies and/or wealthy respondents", which include
the likes of property mogul, Nic Georgiou.
Georgiou is MD of Orthotouch, which bought properties in the HS
companies on the grounds that it would maintain investors'
interest payments. It has failed to do so and recently had a new
scheme of arrangement sanctioned in court as a compromise with
investors.
Theron & Partners has applied to have this scheme rescinded.
Ms. Pillay, meanwhile, is not sure whether the court, when
deciding on whether or not to certify the class action, will be
keen on the R1 000 per-claim registration fee investors need to
pay to participate in the action. "This will be decided in the
certification hearing," she says, supporting Verdoes's comments
that ultimately the court has discretion to order which option is
more suitable.
"There is nothing in law that prevents the representative of the
class to require payment of an amount upfront, whether the amount
is fair and reasonable is debatable," Ms. Pillay adds.
While roughly 7 000 investors have joined a class action group,
the Highveld Syndication Action Group (HSAG), Mr. Theron confirms
that not everyone has paid the registration fee. "A lot of people
have promised their support and promised to pay over a few
months," he tells Moneyweb. "Investors are very much in favor of
this class action and the support of the investors is obviously
driving this certification application forward."
PORTFOLIO RECOVERY: Accused of Violating Fair Debt Collection Act
-----------------------------------------------------------------
Keith Cronin, on behalf of himself and all others similarly
situated v. Portfolio Recovery Associates, LLC, a foreign limited
liability company, Case No. 8:15-cv-00768-EAK-EAJ (M.D. Fla.,
April 1, 2015) accuses the Defendant of violating the Fair Debt
Collection Practices Act.
The Plaintiff is 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
PREMERA BLUE: Faces "Colcord" Class Suit in Oregon District Court
-----------------------------------------------------------------
Marshall Colcord, on his own behalf and on behalf of all others
similarly situated v. Premera Blue Cross, a Washington nonprofit
corporation, Case No. 3:15-cv-00516-BR (D. Or., March 27, 2015)
asserts claims for breach of contract.
The Plaintiff is represented by:
Kim D. Stephens, Esq.
Chase C. Alvord, Esq.
TOUSLEY BRAIN STEPHENS PLLC
1700 Seventh Avenue, Suite 2200
Seattle, WA 98101
Telephone: (206) 682-5600
Facsimile: (206) 682-2992
E-mail: kstephens@tousley.com
calvord@tousley.com
RECKITT BENCKISER: Judge Narrows Claims in "Petruska" Suit
----------------------------------------------------------
District Judge Claire C. Cecchi of the District of New Jersey
granted in part and denied in part defendant's motion to dismiss
in the case JOSEPH PETRUSKA, Plaintiff, v. RECKITT BENCKISER, LLC,
Defendant, 14-03663 (CCC) (D.N.J.)
The plaintiff Joseph Petruska was employed by Reckitt Benckiser,
LLC (RB) from 1994 to 2013 as Senior Project Engineer and was part
of RB's Packaging Development, Engineering and HSE Department,
managed by Sreenivas Rao since September 2012.
RB is a subsidiary of Reckitt Benckiser Group, PLC. In January
2012, RB group of companies reorganized its geographic areas,
which led to the previously separated North American and European
areas becoming part of the same geographic area. Following the
reorganization, RB eliminated the central engineering role.
In December 2012, management notified plaintiff that his position
was being eliminated and that his last day of employment was to be
January 31, 2013. Plaintiff was 56 years old when he was laid off
by RB. On December 4, 2012, plaintiff was given a severance
proposal and 21 days to accept or reject it. on December 17, 2012,
RB provided him with a second severance proposal, accompanied by
age and job related data about the positions being eliminated in
packaging.
Plaintiff alleges that his duties were taken over by Gary
Topoleski, despite the fact that Mr. Topoleski did not have the
skills plaintiff had as an industrial engineer skilled in
packaging systems. Mr. Topoleski was 48 years old at the time of
the layoff, around 8 years younger than plaintiff. Plaintiff
further alleges that Kevin Brincat, plaintiff's younger
supervisee, was not laid off. Mr. Brincat was 52 years old at the
time of the layoff, around 4 years younger than plaintiff.
Plaintiff filed suit alleging that defendant violated the Age
Discrimination in Employment Act, 29 U.S.C. Section 621 et. seq.
(ADEA) and the New Jersey Law Against Discrimination, N.J.S.A
10:5-1 et seq. (NJLAD). Plaintiff brings three counts under the
ADEA and four counts under the NJLAD. Defendant seeks to dismiss
the Amended Complaint, in its entirety, for failure to state a
claim upon which relief can be granted.
Judge Cecchi denied defendant's motion to dismiss plaintiff's
first amended complaint as to Counts III and IV, and wanted
without prejudice as to the remaining counts. Plaintiff is granted
30 days to reinstate the matter and file an amended complaint
solely for purposes of amending the dismissed claims.
A copy of Judge Cecchi's opinion dated March 26, 2015, is
available at http://is.gd/xoSsSKfrom Leagle.com
JOSEPH PETRUSKA, Plaintiff, represented by:
PETER VAN SCHAICK
26 Marston Pl
Glen Ridge, NJ 07028
Telephone: 973-509-2400
RECKETT BENCKISER LLC, Defendant, represented by VINCENT N.
AVALLONE -- vincent.avallone@klgates.com -- at K&L GATES LLP
RESONANT INC: Glancy Binkow Files Securities Class Action
---------------------------------------------------------
Glancy Binkow & Goldberg LLP, representing investors of Resonant
Inc., on March 19 disclosed that it has filed a class action
lawsuit in the United States District Court for the Central
District of California on behalf of a class comprising purchasers
of Resonant securities between November 6, 2014 and February 26,
2015, inclusive.
Please contact Casey Sadler at 888-773-9224 or 310-201-9150, or at
shareholders@glancylaw.com to discuss this matter. If you inquire
by email please include your mailing address, telephone number and
number of shares purchased.
Resonant is a development stage company, focused on creating
filter designs for radio frequency (RF) front-end circuitry that
processes analog signals in mobile devices. On February 26, 2015,
Resonant announced that the Company has "delivered a completed
duplexer design for consideration to our first customer" but the
delivered design "does not meet all the specifications in the
development agreement." The customer's decision whether to use
Resonant's design is uncertain and, according to the Company,
"based on a number of considerations, many of which are beyond our
control."
The Complaint alleges that during the Class Period the Company
issued false and/or misleading statements and/or failed to
disclose that: (1) the Company's duplexer design failed to meet
all of the agreed upon specifications with its first customer; (2)
the customer could refuse to accept the Company's design; and (3),
as a result of the foregoing, the Company's statements were
materially false and misleading at all relevant times.
If you are a member of the Class described above, you may move the
Court no later May 18, 2015, to serve as lead plaintiff, if you
meet certain legal requirements. To be a member of the Class you
need not take any action at this time; you may retain counsel of
your choice or take no action and remain an absent member of the
Class. If you wish to learn more about this action, or if you
have any questions concerning this announcement or your rights or
interests with respect to these matters, please contact Casey
Sadler, Esquire, of Glancy Binkow & Goldberg LLP, 1925 Century
Park East, Suite 2100, Los Angeles, California 90067, at 310-201-
9150, by e-mail to shareholders@glancylaw.com or visit our
website at http://www.glancylaw.com
If you inquire by email, please include your mailing address,
telephone number and number of shares purchased.
RETRIEVAL-MASTERS CREDITORS: Accused of Violating FDCPA in N.J.
---------------------------------------------------------------
Evelyn Missry, on behalf of herself and all others similarly
situated v. Retrieval-Masters Creditors Bureau, Inc. d/b/a AMCA
a/k/a American Medical Collection Agency, Case No. 3:15-cv-02185-
PGS-DEA (D.N.J., March 27, 2015) accuses the Defendant of
violating 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
RR AUCTION: Class Action Over Fake Merchandise Tossed
-----------------------------------------------------
Bob Sanders, writing for New Hampshire Business Review, reports
that a nasty class action suit filed against RR Auction Company
LLC, an Amherst, N.H., memorabilia company, has been tossed out in
California.
The New Hampshire company characterized the fraud suit as
"extortion by litigation."
But the plaintiff, Michael Johnson, said he would continue to
pursue the litigation to include charges of bid-rigging levied in
an affidavit signed in 2008 by RR's former bookkeeper. She signed
the document only a week after she was accused of embezzling
$450,000 from RR. The employee committed suicide a month later,
and her husband settled with the company.
Mr. Johnson filed the suit as an individual back in April 2012,
charging that the company sold him fake merchandise. He expanded
it to a class action in October of that year, demanding as much as
$5 million before the class certification ruling, according to a
settlement letter disclosed by RR.
The March 13 ruling by Santa Barbara, Calif., Judge Donna Geck,
however, ruled against class certification, noting that
Mr. Johnson has unable to come up with any people in California
with a similar grievance. Besides, she said, even finding out if
they were a member of the class would require showing that the
materials were fake on an individual basis, a time-consuming and
costly process.
The memorabilia in question in the lawsuit, according to Johnson's
website, include such items as a signed copy of Eric Clapton's
"Layla" LP, a signed postcard of Paul McCartney shown with the dog
who inspired the song, "Martha My Dear," and a drumhead signed by
all of the members of The Rolling Stones.
Success symbol
The company, which claims it has not been sued in its 35 years of
doing business, said that Mr. Johnson bought less than $100,000 in
merchandise from the company, had not specified which items were
not authentic, and has yet to identify any other customer with a
similar grievance.
RR also says that it has no way of knowing whether the items in
question were the actual ones that RR sold, or whether they are
similar items that were bought years later.
"We are going to fight for our reputation," said Bobby Livingston,
RR executive vice president, told NHBR. "These are the kind of
things you expect when you are successful. Call it a symbol of
our success."
That success includes the sales of a famous original signed photo
of Albert Einstein sticking out his tongue, President Kennedy's
1963 convertible and a pair of guns that once belonged to the
notorious outlaws Bonnie and Clyde, all authenticated by third
parties specializing in that type of collectable.
If a third party could not authenticate the items, RR promised a
lifetime money back guarantee.
Mr. Johnson, however, is challenging RR's very claim to
authenticity, alleging that one of its third party authenticators,
PSA/DNA Authentication Services, had ties to RR.
In his case, he charges, PSA/DNA reversed its determination of
about 20 items of the roughly 75 that he had bought from RR,
according to the deposition.
His website also lists 10 items with their original negative
determinations in May 2011. (One of those items, a Led Zeppelin
album cover signed by all of the members of the band, was sold to
him by an authenticator contracted by RR). The rest, Johnson told
NHBR, were sold to him by RR.
But, Mr. Johnson said, after contacting RR, Livingston and CEO Bob
Eaton -- then a PSA/DNA authenticator -- he had talked to PSA/DNA,
and the firm told him that the items were all good. And he
produced an email from Livingston to Eaton dated July 26, 2011
entitled:
"Re: PSA-now they are real.
"PSA should be should be REFUNDING all the money he spent to get
the rejecting letters and/or giving him LOA (letters of
authenticity) for his stuff that they are authentic NOW."
That implies that they weren't authentic before, Johnson said.
"It doesn't take a 2-year-old to figure out what is going on,"
Johnson said.
After that, Mr. Johnson said he wanted a refund for all his
merchandise.
(Mr. Johnson says the total is between $100,000 and $115,000. RR
claims he bought a total of $90,000 of which about $15,000 worth
was claimed inauthentic. But the items in question and the amount
paid for them are not listed in the legal complaint.)
RR complained they never got to examine the items to determine
their authenticity, or even if they had sold it, noting the large
time lag between the purchase of the first item in 2005 and his
first complaint in 2011.
When Mr. Johnson filed his class action suit he referred to the
statutory limit of $5 million, according to documents supplied to
NHBR. Then in Feb. 7, he offered to settle the case for $1.25
million, but that offer quickly escalated. At the end of March 6,
the offer was for $2.75 million, and by March 20, "when the class
action certified" the number will climb to $5 million.
When asked why the figure was set so high, Johnson stressed that
settlement offer was confidential and should not have been
released to the press.
Targeting credibility
Certifying a class is no easy task. The first step is for
Johnson's attorney to find other class members by publicizing the
lawsuit and contacting them directly.
After some legal wrangling, attorneys for RR said it sent letters
to all 393 of its California customers during that class period,
giving them the opportunity to opt out of being involved in such
litigation. RR sent the remaining customers to Johnson and his
attorneys, who sent them a letter inviting them to join the
lawsuit.
(In order to get beyond California, Mr. Johnson would have to move
his lawsuit to federal court, or other defendants would have to
file from other states.)
In opposing the class motion, RR put forward several arguments.
First, when it searched it records it was unable to come up with a
single person who claimed inauthenticity who did not receive a
refund. There were 12 California customers, nine of whom got
their money back, and the others were "resolved to their
satisfaction."
Second, there was an inherent conflict of interest because many
customers buy as well as sell, each vouching for the authenticity
of their items. Thus a member of the class could wind up suing
another member. (Indeed, Mr. Johnson himself sold items though
RR.)
Each side in the case has attacked the other's credibility.
Livingston told NHBR that Mr. Johnson has been involved in
numerous lawsuits, some involving family members and one against a
prior attorney. (Johnson admitted to five lawsuits in his
deposition.) But Mr. Johnson pointed to Eaton's deposition when he
said he couldn't recall facts of lawsuits in which he was a
plaintiff or defendant. He noted that NHBR had previously
reported a lawsuit filed by RR against a former bookkeeper --
Karen Burris -- who was charged embezzlement before committing
suicide in 2008.
"How could you not remember something like that?" Mr. Johnson
asked NHBR.
Shortly before the judge's ruling, Mr. Johnson filed Ms. Burris'
affidavit, in which she offered "evidentiary information" to
current and past clients "who may have been defrauded by RR's
pattern of unethical and illegal practices over the almost six
years of my employment there."
The statement alluded to a fake signature on an Elvis Presley
guitar and inauthentic signed Beatles albums. While the company
has issued refunds when asked, it allegedly did not follow up with
those who might have bought the items that did not complain, the
statement said.
Finally, Ms. Burris' statement detailed a system of bid-rigging
through the use of fake clients to jack up auction prices.
"There was a constant culture of cavalier bending of the laws of
New Hampshire," she charged in the statement.
RR said that Mr. Johnson failed to disclose that the Ms. Burris
statement came a week after RR fired her and filed the
embezzlement suit against her. The company attached various
checks and wire transfers to document its claim.
While Judge Beck found the affidavit "interesting," she noted that
it pertained to items sold before 2008, which was before the class
period.
RUBIN & ROTHMAN: Violates Fair Debt Collection Act, Suit Claims
---------------------------------------------------------------
Douglas J. Newhook, on behalf of himself and others similarly
situated v. Rubin & Rothman, LLC, Case No. 2:15-cv-01704-LDW-SIL
(E.D.N.Y., March 30, 2015) alleges violations of the Fair Debt
Collection Practices Act.
The Plaintiff is represented by:
Jeanne Lahiff, Esq.
WEISBERG & MEYERS, LLC
5025 North Central Ave., #602
Phoenix, AZ 85012
Telephone: (888) 595-9111
Facsimile: (888) 565-1327
E-mail: ecf@attorneysforconsumers.com
SAKUMA BROTHERS: Supreme Court Hears Arguments in Rest Break Case
-----------------------------------------------------------------
Don Jenkins, writing for Capital Press, reports that the
Washington Supreme Court grapples with whether piece-rate
farmworkers should be paid separately for rest breaks.
Washington Supreme Court justices on March 17 peppered lawyers
with questions about farm practices and economic theory in a
closely watched case that could dictate whether piece-rate
farmworkers in the state will be paid separately for rest breaks.
An attorney for berry pickers at Sakuma Brothers Farms argued that
workers should have an incentive to rest, knowing they will be
paid based on how much they normally pick in 10 minutes. Piece-
rate workers are paid based on how much they pick.
Sakuma, a berry growing and processing company in Burlington,
Wash., asserts piece-rate pay compensates workers for rest breaks.
A ruling would likely set a precedent for other agricultural
employers. Farm groups, business associations, labor
organizations and civil rights activists have filed briefs with
the court stating their positions.
The workers' attorney, Marc Cote, told justices that the rules
that ensure paid breaks for non-agricultural employees should
apply to piece-rate farmworkers.
Farm laborers in particular should have an incentive to rest
because they do "grueling, physical work in the elements for hours
at a time," Mr. Cote said.
Sakuma's lawyer, Adam Belzberg, said the company protects workers
by summoning them out of the fields for mandatory rest breaks.
Justice Charles Wiggins asked whether workers are ever asked to
skip breaks to get in rapidly ripening fruit.
"No, breaks are always taken," Mr. Belzberg said.
Mr. Cote said workers alleged in a federal class-action lawsuit
that breaks weren't made available.
The case was settled out of court before a trial. Sakuma admitted
to no labor violations.
Justices repeatedly turned to whether piece-rate pay actually
covers 10-minute breaks every four hours.
Mr. Belzberg said piece-rate workers were "absolutely" compensated
for rest breaks. He said paying workers separately would amount
to "extra pay."
Mr. Cote said that even if paid rest breaks were somehow
calculated into piece rates, workers still need separate
compensation to ensure breaks are taken.
The dispute over whether the company enforces rest breaks and
factors them in when calculating pieces-rates highlights that the
case went to the Supreme Court without an established body of
facts determined at a trial.
A federal judge presiding over the class-action lawsuit referred
the issue to the Supreme Court at the request of the workers.
Chief U.S. District Judge for Western Washington Marsha Pechman
ruled the question could impact thousands of workers and should be
decided by the state's high court.
Supreme Court Chief Justice Barbara Madsen called the lack of a
trial record "kind of a wrinkle in this case."
The court held the hearing at Heritage University in Toppenish.
The justices usually convene in Olympia, but occasionally travel
to give more people a chance to see a Supreme Court hearing.
If justices rule in favor of separately paid rest breaks, they
must decide how pay will be calculated. Mr. Cote argued in favor
of basing the pay on the speed of individual workers.
Mr. Belzberg argued in favor of paying the state's minimum wage,
or another wage set by the employers.
SANTA BARBARA, CA: Surcharge Is Illegal Tax, Appeals Court Says
---------------------------------------------------------------
Justice Steven Z. Perren of the Court of Appeals of California,
Second District, Division Six reversed and remanded the case
entitled ROLLAND JACKS et al., Plaintiffs and Appellants, v. CITY
OF SANTA BARBARA, Defendant and Respondent, 2D CIVIL NO. B253474
(Cal. Ct. App.)
The California Constitution, as amended by Proposition 218,
prohibits local governments from imposing new or increased taxes
without first obtaining voter consent.
Southern California Edison (SCE) has been providing electricity to
the City pursuant to a series of franchise agreements allowing SCE
to use the City's streets and other property. In November 2005,
following the Public Utilities Commission's (PUC) approval of the
1% surcharge, SCE began billing and collecting it from the City's
electricity users and remitting the revenues to the City. The 1%
surcharge was expected to generate approximately $600,000 in
revenue each year and increase the monthly electricity bill for a
typical residential customer by about 54 cents. It was never
submitted to or approved by City voters.
Jacks et al. filed a class action complaint. They sought an order
declaring that the 1% surcharge is invalid under Proposition 218
as a tax imposed without voter approval, enjoining the City from
its further collection, and requiring the City to repay the
revenues already collected. Appellants moved for summary
adjudication of the liability issues and the City sought summary
judgment. The court found that the 1% surcharge does constitute a
tax under the 2010 amendments to article XIII C of the California
Constitution brought about by Proposition 26. Ultimately, however,
the court ruled that Proposition 26's definition of "tax" does not
apply retrospectively to the 1999 franchise agreement. The court
entered judgment in favor of the City. Appellant appealed.
Justice Perren of the Court of Appeals of California, Second
District, Division Six, concluded that the 1% surcharge is an
illegal tax masquerading as a franchise fee. The judgment is
reversed and the matter is remanded to the trial court.
A copy of Justice Perren's opinion dated February 26, 2015, is
available at http://is.gd/DqQFzT from Leagle.com.
Huskinson, Brown & Heidenreich, David W.T. Brown, and Paul E.
Heidenreich for Plaintiffs and Appellants
Ariel Pierre Calonne, City Attorney, Tom R. Shapiro, Assistant
City Attorney; Jarvis, Fay, Doporto & Gibson, Benjamin P. Fay,
Rick W. Jarvis and Andrea Saltzman for Defendant and Respondent
Colantuono, Highsmith & Whatley, Michael G. Colantuono, and Ryan
Thomas Dunn for League of California Cities as Amicus Curiae on
behalf of Defendant
The Cal. Ct. App. panel consists of Presiding Justice Arthur
Gilbert and Justices Steven Z. Perren and Kenneth R. Yegan.
SANTA CLARA VALLEY TRANS: Plaintiffs' Bid for Class Cert. Granted
-----------------------------------------------------------------
Magistrate Judge Paul S. Grewal of the Northern District of
California, San Jose Division, granted plaintiffs' motion for
class certification in the case BALJINDER RAI, et al., Plaintiffs,
v. SANTA CLARA VALLEY TRANSPORTATION AUTHORITY, et al.,
Defendants, CASE NO. 5:12-CV-004344-PSG (N.D. Cal.)
Richard Rosa and Walter Silveira are system operators who allege
that from August 17, 2009 onward VTA subjected them to a common
and unlawful compensation scheme. Plaintiffs say that VTA required
them to work off-the-clock without compensation because VTA did
not compensate them for all hours worked performing compensable
work activities such as traveling to their routes and meeting with
their supervisors.
Plaintiffs allege that VTA's compensation system does not pay
operators for all (1) split-shift travel time, (2) turn-in time,
(3) bulletin time, (4) meeting time, (5) pre-departure time and
(6) all time actually spent driving. In the second and third
causes of their Fourth Amended Complaint, plaintiffs allege that
by not compensating operators for all hours worked, VTA has
violated California Industrial Wage Order No. 9, California Labor
Code Section 1194 and San Jose Municipal Code Chapter 4.100.
Plaintiffs request that the court certify a class with request to
these causes of action of all individuals who are currently
employed, or formerly have been employed, by the Santa Clara
Valley Transportation Authority as a bus or train operator at any
time on or after August 17, 2009. Plaintiffs also seek
authorization to send to all class members the class notice
attached to the declaration of Steven G. Tidrick, appointment of
plaintiffs Richard Rosa and Walter Silveira as representatives of
the class and appointment of the Tidrick Law Firm as class
counsel.
Magistrate Judge Grewal granted plaintiffs' motion for class
certification under Rule 23(b)(3) and appointed the named
plaintiffs as class representatives. The court also designated as
class counsel under Rule 23(g) The Tidrick Law Firm. The class is
defined as follows: "All individuals who are currently employed,
or formerly have been employed, by the Santa Clara Valley
Transportation Authority as a bus or train operator at any time on
or after August 17, 2009, excluding anyone employed by counsel for
Plaintiffs in this action, and any judge to whom this action is
assigned and his or her immediate family members."
A copy of Magistrate Judge Grewal's order dated February 24, 2015,
is available at http://is.gd/uIhZXD from Leagle.com
Plaintiffs Baljinder Rai, Ravi Lal, Tarandeep Singh, Lacreasha
Glasper, Jill Haeberle, Richard Rosa, Charlene Adams, Jian
Laracuente, Carolyn Thompkins, Jamaine Gibson, Thomas G. Smith,
Walter Silveira, are represented by:
Joel Benjamin Young, Esq.
Steven Gregory Tidrick, Esq.
THE TIDRICK LAW FIRM
2039 Shattuck Avenue #308
Berkeley, CA 94704
Telephone: 510-788-5100
Facsimile: 510-291-3226
Santa Clara Valley Transportation Authority, Defendant,
represented by Joseph Patrick Ryan, Santa Clara Valley
Transportation Authority
SCHLUMBERGER TECHNOLOGY: Conditional Cert. Granted in "Boudreaux"
-----------------------------------------------------------------
Magistrate Judge C. Michael Hill of the Western District of
Louisiana granted plaintiffs' motion for conditional certification
of a class in the case BROCK P. BOUDREAUX, ET AL. v. SCHLUMBERGER
TECHNOLOGY CORP., ET AL., CIVIL NO. 6:14-2267, (W.D. La.)
Plaintiffs are Directional Drillers, Measurement While Drilling
Operators and Logging While Drilling Operators under the employ of
Schlumberger Technology Corp. They alleged that Schlumberger
failed to pay them overtime as required by the Fair Labor
Standards Act (FLSA). The Putative Class Members consist of all
Drillers and Operators employed by Schlumberger during the past
three years.
Plaintiffs allege that they have been, and continued to be, denied
overtime pay as a result of a widespread corporate policy that
uniformly misclassifies them as exempt from the FLSA overtime
provisions, regardless of any individualized factor such as
experience, age, job duties, or geography. They assert that as a
result of Schlumberger's classification decision, it paid all
putative class members a salary plus day rate basis, with no
overtime pay.
Plaintiffs filed a motion to conditionally certify a collective
action under 29 U.S.C. Section 216(b) of the FLSA, and that
judicially-approved notice be sent to all putative class members
by first class mail and e-mail. Schlumberger denies the
plaintiffs' allegations and opposes collective action
certification under 29 U.S.C. Section 216(b). Its primary position
is that the plaintiffs are not similarly situated for purposes of
maintaining a collective action. More specifically, Schlumberger
claims that the different job classifications held by the
plaintiffs require case-by-case analysis, and are thus
inappropriate for a collective action.
Magistrate Judge Hill granted plaintiffs' motion for conditional
certification and two Putative Classes are conditionally
certified: (1) Directional Drillers, and (2) Operators. A copy of
Magistrate Judge Hill's memorandum dated February 25, 2015, is
available at http://is.gd/abX0iofrom Leagle.com
Brock P Boudreaux, Plaintiff, represented by Michael A Josephson,
Fibich Leebron et al, Andrew Dunlap, Fibich Leebron et al, Lindsay
R Itkin, Fibich Leebron et al, Richard J Burch, Bruckner Burch &
Kenneth W DeJean, Law Offices of Kenneth W DeJean
Khaled A Barake, Plaintiff, represented by Michael A Josephson,
Fibich Leebron et al, Andrew Dunlap, Fibich Leebron et al, Lindsay
R Itkin, Fibich Leebron et al, Richard J Burch, Bruckner Burch &
Kenneth W DeJean, Law Offices of Kenneth W DeJean
Kiel D Crabtree, Plaintiff, represented by Andrew Dunlap, Fibich
Leebron et al, Kenneth W DeJean, Law Offices of Kenneth W DeJean,
Lindsay R Itkin, Fibich Leebron et al & Richard J Burch, Bruckner
Burch
Michael Ainsworth, Plaintiff, represented by Michael A Josephson,
Fibich Leebron et al, Andrew Dunlap, Fibich Leebron et al, Lindsay
R Itkin, Fibich Leebron et al, Kenneth W DeJean, Law Offices of
Kenneth W DeJean & Richard J Burch, Bruckner Burch
Christopher J Lindley, Plaintiff, represented by Andrew Dunlap,
Fibich Leebron et al, Kenneth W DeJean, Law Offices of Kenneth W
DeJean, Lindsay R Itkin, Fibich Leebron et al & Richard J Burch,
Bruckner Burch
Leonard Rabin, Plaintiff, represented by Andrew Dunlap, Fibich
Leebron et al, Kenneth W DeJean, Law Offices of Kenneth W DeJean,
Lindsay R Itkin, Fibich Leebron et al & Richard J Burch, Bruckner
Burch
Rorary Darrell Cummings, Jr, Plaintiff, represented by Andrew
Dunlap, Fibich Leebron et al, Kenneth W DeJean, Law Offices of
Kenneth W DeJean, Lindsay R Itkin, Fibich Leebron et al & Richard
J Burch, Bruckner Burch
Maximo Roman, Plaintiff, represented by Andrew Dunlap, Fibich
Leebron et al, Kenneth W DeJean, Law Offices of Kenneth W DeJean,
Lindsay R Itkin, Fibich Leebron et al & Richard J Burch, Bruckner
Burch
Chris Miller, Plaintiff, represented by Andrew Dunlap, Fibich
Leebron et al, Kenneth W DeJean, Law Offices of Kenneth W DeJean,
Lindsay R Itkin, Fibich Leebron et al & Richard J Burch, Bruckner
Burch
William Nash, Plaintiff, represented by Andrew Dunlap, Fibich
Leebron et al, Kenneth W DeJean, Law Offices of Kenneth W DeJean,
Lindsay R Itkin, Fibich Leebron et al & Richard J Burch, Bruckner
Burch
Chadwick Austin Welty, Plaintiff, represented by Andrew Dunlap,
Fibich Leebron et al, Kenneth W DeJean, Law Offices of Kenneth W
DeJean, Lindsay R Itkin, Fibich Leebron et al & Richard J Burch,
Bruckner Burch
Nathaniel Baylen Morse, Plaintiff, represented by Andrew Dunlap,
Fibich Leebron et al, Kenneth W DeJean, Law Offices of Kenneth W
DeJean & Lindsay R Itkin, Fibich Leebron et al.
Manuel De Jesus Siliezar, Plaintiff, represented by Andrew Dunlap,
Fibich Leebron et al, Kenneth W DeJean, Law Offices of Kenneth W
DeJean & Lindsay R Itkin, Fibich Leebron et al.
Joseph Thibodeaux, III, Plaintiff, represented by Andrew Dunlap,
Fibich Leebron et al, Kenneth W DeJean, Law Offices of Kenneth W
DeJean & Lindsay R Itkin, Fibich Leebron et al.
Schlumberger Technology Corp, Defendant, represented by Brendan M
Greene, Kullman Firm, Robert P Lombardi, Kullman Firm & Sam Zurik,
III, Kullman Firm
SENEX SERVICES: Accused of Violating Fair Debt Collection Act
-------------------------------------------------------------
Rachel Grandovsky, on behalf of herself and al others similarly
situated v. Senex Services Corp. and Balekian Hayes, PLLC, Case
No. 3:15-cv-02351-MAS-TJB (D.N.J., April 2, 2015) accuses the
Defendants of violating 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
SEPHORA U.S.A.: "Mies" Suit Won't Proceed as Class Action
---------------------------------------------------------
Justice Kathleen M. Banke of the Court of Appeals of California,
First District, Division One, affirmed the order of the trial
court in the case EVA VIDAL MIES, Plaintiff and Appellant, v.
SEPHORA U.S.A., INC., Defendant and Respondent, NO. A139410 (Cal.
Ct. App.)
Sephora U.S.A., Inc. operates 47 retail cosmetics stores in
California. Each store has a store director, who runs the store,
and one to four specialists.
Eva Mies is a former specialist of Sephora. In February 2012, she
instituted a complaint alleging that Sephora has misclassified
specialists, like herself, as exempt and paid them lower wages
than required by law. She further alleges Sephora failed to pay
overtime wages in violation of Labor Code section 1194, and
engaged in unfair competition in violation of Business and
Professions Code section 17200 by failing to pay these overtime
wages, failing to provide specialists with meal periods or
compensating them for missed periods, improperly paying
specialists in accrued paid time off (PTO), and, as a result
failing to provide accurate wage statements. Mies additionally
seeks statutory penalties under the Labor Code Private Attorneys
General Act of 2004 (Lab. Code, Section 2698, et seq.). Mies seeks
to certify a class of the 99 California-based Specialists employed
between February 22, 2006 and the present.
The trial court denied class certification, concluding
individualized issues, not common ones, would predominate the
determination of liability. Mies appealed.
Justice Banke affirmed the order denying class certification and
concluded that the trial court did not abuse its discretion in
denying class certification.
A copy of Justice Banke's opinion dated February 26, 2015, is
available at http://is.gd/2i7KThfrom Leagle.com.
Robin G. Workman -- Aviva N. Roller - workmanlawfirm.com -- at
Workman Law Firm, PC, for Plaintiff and Appellant
Andrew R. Livingston -- alivingston@orrick.com -- Brooke D. Arena
-- Aubry R. Holland -- aholland@orrick.com -- at Orrick,
Herrington & Sutcliffe, for Defendant and Respondent
The Court of Appeals of California, First District, Division one
panel consists of Acting Presiding Justice Sandra L. Margulies and
Justices Kathleen M. Banke and Robert L. Dondero
SOUTHWEST CREDIT: Sued for Violating Fair Debt Collection Act
-------------------------------------------------------------
Josephtz Schwartz, on behalf of himself and all other similarly
situated consumers v. Southwest Credit Systems L.P., Case No.
1:15-cv-01796 (E.D.N.Y., April 2, 2015) seeks relief under 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
ST. GEORGE, UT: Fights Code Enforcement Program Class Action
------------------------------------------------------------
David DeMille, writing for The Spectrum, reports that the legal
fight continues over St. George code enforcement program.
Attorneys for the City of St. George are asking a federal court
judge to deny a request to have an ongoing civil case against the
city's code enforcement program certified as a class action,
contending that the main arguments being made have already been
tossed out in a previous ruling.
In a filing made in U.S. District Court, the defense team argues
that the sweeping allegations outlined in the suit don't apply
broadly to the code enforcement program as a whole, leaning on a
ruling made late last year when federal court Judge Dee Benson
dismissed a number of the causes outlined in the lawsuit,
including an allegation that the program as written is facially
unconstitutional.
He dismissed five of the seven causes listed in the suit, although
some were dismissed without prejudice.
"These claims are barred by the court's order, and plaintiffs'
proposed amendment to add these claims would be futile," according
to the memorandum sent to Judge Benson on March 13.
In a motion filed in February, attorneys for a pair of brothers
and former a city council candidate alleged the city's
administrative code enforcement program had violated the rights of
thousands of residents over the past 12 years.
Based on documentation obtained from the city, the complaint
argues that large numbers of residents were denied due process
rights -- it estimates 14,400 residents received courtesy notices
and took action to meet the city's demands and 1,600 were fined or
had liens put on their properties for not obeying.
The complaint also alleges, based on testimony given by a code
enforcement officer in a 2013 code enforcement hearing, that an
estimated 3,200 residents had their 4th Amendment protections
against unreasonable searches violated when enforcement officers
entered their properties.
The city is also asking for the denial of a request made by the
plaintiffs to submit another amended version of the complaint,
stating that the new complaint also relies on arguments made moot
by the dismissal of the facial challenges to the program.
The proposed amended complaint defines three new causes of action
and describes in further detail some of the accusations made by
the plaintiffs, including instances where former mayor Daniel
McArthur and city council members Gil Almquist and Jimmie Hughes
are alleged to have received special treatment from the program.
First filed in 2013, the lawsuit, which was already amended once
last year, names the city, code enforcement officers Malcom Turner
and Jeff Cottam, Mayor Jon Pike, City Manager Gary Esplin and
McArthur as defendants.
The plaintiffs include brothers Jake and John Rowley and former
city council candidate Tara Dunn, all of whom claim they were
unfairly targeted and denied due process when they were fined
through the code enforcement program.
Violations of city ordinances were prosecuted in the city justice
court system until 2003 when the administrative court process was
created.
The Code Enforcement Team, currently comprised of two officers,
was developed to investigate violations such as unkempt weeds,
trash, inoperable vehicles, sign violations and other issues that
might threaten safety, health, property values or other items
covered by the city code.
The city's legal department was tasked with overseeing the
program, while the mayor and city council are to appoint an
administrative law judge who then presides over the program and
hears challenges in open hearings.
Code enforcement officers continue to issue violation notices,
although Deputy City Attorney Paula Houston said residents who
contest the complaints are not being fined because they have no
one to take their challenges to -- the administrative court
hearings have been unavailable since August, when the judge
previously assigned to preside over the hearings stepped down.
Mr. Pike said the city has been interviewing potential candidates.
STARBUCKS CORP: Deceives Frappuccino(R) Consumers, Class Claims
---------------------------------------------------------------
Kyeong Jae Lee, Lingxi Kong, Neil Stevens, Shuting Huang, John Doe
(Illinois), John Doe (Michigan), John Doe (New Jersey), John Does
1-100, on behalf of themselves and others similarly situated v.
Starbucks Corporation d/b/a Starbucks Coffee Company, Case No.
1:15-cv-01634-CBA-VMS (E.D.N.Y., March 27, 2015) is a consumer
protection action arising out of the alleged deceptive and
otherwise improper business practices that Starbucks engaged in
with respect to the packaging of their bottled Frappuccino(R) and
Iced Coffee products, which are packaged in glass bottles and
regularly sold at pharmacies, convenience stores, grocery stores,
and Starbucks Coffee stores.
Starbucks Corporation is a Washington corporation headquartered in
Seattle. The Defendant manufactures, markets and sells the
Products with alleged non-functional slack-fill in violation of
the Federal Food Drug & Cosmetic Act, the Code of Federal
Regulations, as well as state laws prohibiting misbranded food of
the 50 states and the District of Columbia.
The Plaintiffs represented by:
C.K. Lee, Esq.
LEE LITIGATION GROUP, PLLC
30 East 39th Street, Second Floor
New York, NY 10016
Telephone: (212) 465-1188
Facsimile: (212) 465-1181
E-mail: cklee@leelitigation.com
STATION CASINOS: Faces Suit Alleging Discrimination & Retaliation
-----------------------------------------------------------------
Maria T. Rodriguez, an individual v. Station Casinos, LLC, a
domestic business entity d/b/a/ Boulder Station Casino; Does I
through X, inclusive; Roe Corporations I through X, inclusive,
Case No. 2:15-cv-00594-GMN-CWH (D. Nev., March 31, 2015) alleges
that the Plaintiff endured hostile work environment,
discrimination, disparate treatment and retaliation in her
workplace at the Company, in violation of the Civil Rights Act of
1964. She was terminated in 2014.
Station Casinos, LLC, doing business as Boulder Station Casino, is
a domestic entity conducting business in the state of Nevada. The
Company is engaged in the hotel and casino business. The true
names or capacities of the Doe and Roe Defendants are unknown.
The Plaintiff is represented by:
Trevor J. Hatfield, Esq.
HATFIELD & ASSOCIATES, LTD.
703 South Eighth Street
Las Vegas, NV 89101
Telephone: (702) 388-4469
Facsimile: (702) 386-9825
E-mail: thatfield@hatfieldlawassociates.com
SUBWAY SANDWICHES: Conditional Cert. Granted in "Bacon" Suit
------------------------------------------------------------
District Judge Pamela L. Reeves of the Eastern District of
Tennessee, Knoxville Division, ruled on the parties' motions in
the case Samantha Bacon, et al., Plaintiffs, v. Subway Sandwiches
& Salads LLC, et al., Defendants, NO. 3:14-CV-192-PLR-HBG (E.D.
Tenn.)
The plaintiffs are non-managerial employees at the defendants'
Subway restaurants. They alleged that the defendants have violated
the Fair Labor Standards Act (FLSA), 29 U.S.C. Section 205 et
seq., by failing to compensate them and other similarly situated
plaintiffs for all hours worked. In addition to the FLSA claims,
the plaintiffs assert conversion, civil conspiracy, breach of
contract, and unjust enrichment claims. Plaintiffs contend that
defendants are actually interrelated and constitute a single
employer for the purposes of the FLSA.
The defendants maintain that they operate separate and distinct
restaurants, and are not a joint employer for the purpose of the
FLSA.
The plaintiffs have moved for conditional class certification and
the magistrate judge issued a report and recommendation on motion.
The defendants have moved to dismiss the plaintiffs' claims under
Federal Rule of Civil Procedure 12(b)(6), and opposed the
conditional class certification as recommended by the magistrate
judge.
Judge Reeves granted in part and denied in part defendants' motion
to dismiss, overruled their objections to a report and
recommendation, and granted plaintiffs' motion for conditional
certification.
A copy of Judge Reeves's memorandum opinion and order dated
February 19, 2015, is available at http://is.gd/DbfYrCfrom
Leagle.com.
Plaintiffs, represented by:
James H Price, Esq.
Michael Ryan Franz, Esq.
W. Allen McDonald, Esq.
LACY, PRICE & WAGNER, P.C.
249 N Peters Rd #101
Knoxville, TN 37923
Telephone: 865-690-5028
Defendants, represented by Robert L Bowman --
rbowman@kramer-rayson.com -- George R Arrants, Jr --
garrants@kramer-rayson.com -- at Kramer, Rayson LLP
SYNGENTA CORP: April 27 Hearing Scheduled for GMO Corn Suits
------------------------------------------------------------
Patti Jo Peterson, writing for The Journal, reports that corn
producers with exported crops from 2011 through 2014 may have a
claim against Syngenta due to the MIR162 corn trait, according to
Dave Domina of Domina Law Group in Omaha.
Mr. Domina updated area farmers about lawsuits regarding MIR162
during an informational meeting in Weeping Water March 7.
"We are investigating claims against Syngenta and providing
services to all producers/sellers who need our help," Mr. Domina
said. "Every corn producer/seller is a potential claimant, and
these cases will either be resolved as 'mass actions' or in a
'class action' on behalf of U.S. corn producers and sellers."
MIR162 has been sold under the names Agrisure Viptera in 2009 and
recently as Agrisure Duracade.
"Syngenta's corn trait MIR162 makes plants resistant to certain
pests. While developing traits resistant to pests is not a bad
thing, if certain countries or world markets reject this type of
corn because of specific issues with this trait, the entire corn
market may be injured by limiting the number of markets and
potential buyers. Less markets equal lower prices," Mr. Domina
said.
The USDA approved MIR162 in 2008. The Environmental Protection
Agency and Brazil approved it in 2009 with Canada accepting it in
2010. China did not accept it until Dec. 17, 2014.
The corn market plummeted after China rejected all U.S. corn
exports in 2012 and 2013. "The National Grain and Feed
Association estimates that U.S. growers, grain handlers and
exporters suffered losses up to $2.9 billion. Any dollars that can
be recovered belong in the pockets of U.S. corn sellers," Mr.
Domina said.
The pending lawsuits claim Syngenta's marketing failed to warn
them about China's rejection. They have nothing to do with the
quality of the corn product with MIR162 trait, he said.
"It is thought Syngenta misinformed farmers, elevators and
exporters that MIR162 approval by China was imminent and posed no
problem for the corn market. However, even after Syngenta's upper
management knew better, Syngenta continued to offer more MIR162
lines without disclosures. Even if the grain is good for some
uses, it was not exportable on satisfactory terms," Mr. Domina
said.
Syngenta claims no market harm to U.S. farmers occurred. "The
financial problem came about because Syngenta decided to market
its MIR162 corn to American corn farmers without disclosing the
risk of losing the Chinese export market even though it knew China
had not approved the trait. The theory of the case is that all
U.S. corn producers suffer a loss if the nationwide price of corn
fell due to the loss of the Chinese market," Mr. Domina said.
China had a "no-MIR162 policy" when it rejected the shipments.
China gave no reason for the MIR162 ban. "When the first shipment
got there, they tested and rejected the loads," Mr. Domina
explained.
Mr. Domina said China possibly rejected the corn for health
concerns or in order to protect its own export market. "We
produce 32 percent of the corn in the world. China produces 24.5
percent," Mr. Domina said.
Because it has its own corn crops, China does not import the
lion's share of corn in the world. "At the 2012 year end, China
had imported five million metric tons from the world," he said.
"Since then they have imported half or less."
Mr. Domina stresses the rejection affected all corn producers.
"Chinese rejection of all U.S. corn caused an injury to the
market, which means even if you have never planted Syngenta corn
with the MIR162 trait, you may have suffered a financial loss.
Because MIR162 was mixed and combined with all other U.S. corn,
all non-MIR162 corn was contaminated and all U.S. corn shipments
were denied by China."
So far more than 760 separate lawsuits have been filed and more
are being filed.
"The claim in the suit is the market never recovered, not because
of the news but because of the reduced demand," he said.
Cases around the country have all been swept together and moved to
the Federal District Court in Kansas. "A single judge is to be
the shepherd over those cases," Mr. Domina said.
A hearing is scheduled for April 27. The judge will decide
whether the lawsuits will be dealt with as "mass action" or "class
actions."
Mass actions involve injuries to a distinct group of individuals
who may reside in the same geographical area. The number of
people injured in a mass action is usually less than those in a
larger class action.
In a class action the large group of plaintiffs is represented by
a class representative, who stands in for the rest of the class.
This means all members of the class are treated as one plaintiff,
not separately.
Most lawyers believe the judge will decide to make it a mass
action suit.
"A mass action is easier," Mr. Domina said. "It can require one
prototype case be filed. Syngenta would only have to answer to
one, so the number of claimants shrink. When the judge figures
out what issues are worth trying, he can chose a few to try. He
might choose the best 10."
Mr. Domina noted that Nebraska also has a four-year statute of
limitations on lawsuits. "Sometime in 2015 around harvest time,
2011 will disappear," he said.
Mr. Domina said he believes claims will receive a payout, but
warned farmers not to spend the money before it is awarded.
TARGET CORP: To Settle Data Breach Class Action for $10 Million
---------------------------------------------------------------
The Associated Press reports that Target Corp. has proposed to pay
US$10 million to settle a class-action lawsuit brought against the
retailer following a massive data breach in 2013.
Individuals affected by the breach could get up to a maximum of
US$10,000, the proposal says.
Target's data breach in 2013 exposed details of as many as 40
million credit and debit card accounts and hurt its holiday sales
that year. The company offered free credit monitoring for
affected customers and overhauled its security systems.
The proposed settlement would also require Minneapolis-based
Target Corp. to appoint a chief information security officer, keep
a written information security program and offer security training
to its workers. It would be required to maintain a process to
monitor for data security events and respond to such events deemed
to present a threat.
"We are pleased to see the process moving forward and look forward
to its resolution," Target spokeswoman Molly Snyder said in an
emailed statement.
The company said in court documents filed in Minnesota that the
funds for reimbursements will be kept in an interest bearing
escrow account. Claims will mostly be submitted and processed
online through a dedicated website.
The chain has worked hard to lure back customers that were
hesitant to shop there after the incident. Over the 2014 holiday
season, Target offered free shipping on all items. It recently
announced that it was cutting its minimum online purchase to
qualify for free shipping in half to US$25. And on March 18 the
retailer said it will now allow returns for up to a year for its
private and exclusive brands.
Target's bounce back from a turbulent stretch including the data
breach and exit from Canada has been met with optimism on Wall
Street. The retailer's stock traded above US$80 for the first
time Monday, reaching another in a string of all-time highs that
it began to log just before the crucial holiday shopping season
began in December.
Earlier in March, Target said it would lay off about 1,700 people,
eliminate another 1,400 unfilled positions and cut up to US$2
billion in costs. It will also focus more on technology to boost
online sales growth. The latter move will involve about US$1
billion aimed at beefing up business from shoppers who are more
likely to shop online.
A court hearing on the proposed settlement was set for March 19 in
St. Paul.
TRADER JOE'S: Faces Class Action High Arsenic Level in Wines
------------------------------------------------------------
CBS News reports that following recent warnings about the amount
of arsenic in apple juice and rice, a proposed class action
lawsuit was being filed on March 19 in California that claims some
of the country's top selling wines have high levels of the
element: up to four and five times the maximum amount the
Environmental Protection Agency (EPA) allows for drinking water,
reports CBS News correspondent Carter Evans.
There are almost no federal labeling requirements to tell you
what's really in wine, that's why a Denver laboratory started
running tests to find out.
After 15 years working in the wine distribution business,
Kevin Hicks started BeverageGrades, a laboratory that analyzes
wine. What he discovered shocked him.
"Some very, very high levels of arsenic," Mr. Hicks said.
He tested more than 1,300 bottles of wine. Almost a quarter of
them had levels higher than the EPA's maximum allowable amount of
arsenic in drinking water: 10 parts per billion. No one can say
for sure why, but Hicks noticed a pattern.
"The lower the price of wine on a per-liter basis, the higher the
amount of arsenic," he said.
They included Trader Joe's famed Two-Buck Chuck White Zinfandel,
which came in at three times the limit, a bottle of Menage a Trois
Moscato was four times the limit and a Franzia White Grenache had
five times the EPA limit for drinking water.
He took the test results to some of those wine companies.
"Most wine companies, when I mention arsenic and wine in the same
sentence, literally almost hung up the phone on me," he said.
The next step, he said, was to supply the data to a law firm.
"He was trying to get their attention; he was trying to blow the
whistle on them," attorney Brian Kabateck said.
On March 19, he planned to file a class action lawsuit in
California accusing more than 24 California winemakers and sellers
of misrepresenting their wine as safe.
"We've done testing with two separate labs," Mr. Kabateck said.
He said they've checked Hicks' results and they "absolutely" stand
up.
CBS News took those results to epidemiologist Allan Smith,
associate director of the Arsenic Health Effects research program
at U.C. Berkeley.
"These are about two to three times in this particular sample, the
drinking water standard, and they vary, they fluctuated, but some
of them were up to three, four or five times the drinking water
standard," Mr. Smith said.
Mr. Smith said 50 parts per billion of arsenic -- the highest
level found in one of the bottles Hicks tested -- can be deadly
over time.
Even though "parts per billion" seems like a very small amount,
Smith said "Arsenic is highly toxic; it's astonishing."
"It has as many effects inside the body as cigarette smoking
does," Mr. Smith said.
But he based that on studies of drinking water, which is the only
beverage with an arsenic limit set by the U.S. government.
"We estimate that approximately 1 in 100 people who drink water
like that throughout their life will die from the arsenic,
ultimately, due to mostly cancers from it," Mr. Smith said.
The federal government doesn't regulate wine like it does water,
and a spokesperson for The Wine Group, one of the companies named
in the lawsuit, told CBS News, "It would not be accurate or
responsible to use the water standard as the baseline" because
people generally drink more water than wine. He also pointed out
that the highest level of arsenic cited in the lawsuit is "only
half of Canada's standard for wine, of 100 parts per billion."
The FDA said it only handles contaminates in food and beverages on
a "case-by-case basis."
"The industry, we believe, is not properly regulated, but the
state of California has recognized the 10 parts per billion is a
dangerous amount," Mr. Kabateck said.
He's interpreting a California law that requires businesses to
warn consumers if their products contain "a chemical known to the
state to cause cancer." California's threshold for arsenic is 10
parts per billion, the same as the EPA's water standard, but The
Wine Institute, an advocacy group for California winemakers, said
the industry already provides warning signs to be posted in retail
stores.
The California attorney general's office confirmed that's all the
law requires, but some think that's not enough.
"I think that all beverages should aim to meet the drinking water
standard of 10 parts per billion," Mr. Smith said.
Two other defendants named in the lawsuit responded to CBS News'
request for comment. Treasury Wine estates said its "brands are
fully compliant with all relevant federal and state guidelines,"
and Trader Joe's, which sells Two Buck Chuck, said "the concerns
raised in your inquiry are serious and are being treated as such.
We are investigating the matter with several of our wine producing
suppliers."
Mr. Kabateck said his ultimate goal is "to get the winemakers to
recall these wines, to get them to refund the money that people
paid for these wines, and ultimately to clean up the wine industry
in California."
Mr. Smith said wine makers need to determine where the arsenic is
coming from, but in the meantime, "it ought to have on the wine,
'this wine contains arsenic.'"
"To most consumers, that may or may not help them, but it would
sure be a big incentive for the wine producer to get down to the
drinking water standard," he said.
CBS News also spot-checked and tested the four wines listed in the
lawsuit. They were not the same vintages, but the arsenic levels
were all considerably lower than BeverageGrades' results. One of
them, the Wine Group's Flip Flop Pinot Grigio, came in within the
acceptable federal arsenic levels for water.
The others were at or above that limit, including Trader Joe's Two
Buck Chuck White Zinfandel, which tested at more than twice that
standard.
UNITED STATES: Cal. Judge Won't Certify Appeal on Venue Transfer
----------------------------------------------------------------
District Judge Christina A. Syder of the Central District of
California denied plaintiffs' motion in the case MARZIEH ADAB, ET
AL. v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, ET AL.,
NO. 2:14-CV-04597-CAS (AGRX) (C.D. Cal.)
Plaintiffs Marzieh Adab, Ian Bowles, Bei Guo, Mohammad Saeid
Khorram, David Lawler, and Jing Zhangare are non-resident aliens
who applied for immigrant investor "EB-5" visas under a pilot
program established to encourage investors to pool their capital
through regional centers. The plaintiffs applied for EB-5 visas,
and were denied by defendant United States Citizenship and
Immigration Services (USCIS). Plaintiffs' petitions were submitted
to the USCIS California Service Center (CSC) in Laguna Nigel,
California, and involved investments in Riverside County,
California. Two of plaintiffs' petitions were rejected by the CSC
and four petitions were rejected by the USCIS Immigrant Investor
Program Office (IPO) located in Washington.
Plaintiffs assert claims against the USCIS; Jeh Johnson,
Secretary, U.S. Dept. Of Homeland Security; Nicholas Colucci,
Chief, Immigrant Investor Program, USCIS; and Lori Scialabba,
Acting Director, USCIS. The gravamen of plaintiffs' complaint is
that defendants acted arbitrarily and capriciously, and violated
plaintiffs' due process rights, in rejecting plaintiffs' petitions
for conditional legal residents status as alien entrepreneurs.
Defendants argued that (1) venue was improper in the Central
District of California under 28 U.S.C. Section 1406, and (2)
transfer to the United States District Court for the District of
Columbia was appropriate under 28 U.S.C. Section 1404(a). On
October 20, 2014, defendants filed a motion to transfer the action
to the United States District Court for the District of Columbia.
The Court heard oral argument, and on January 26, 2015, and
granted the motion to transfer. On February 17, 2015, plaintiffs
filed a motion to certify the transfer order for interlocutory
appeal pursuant to 28 U.S.C. Section 1292(b).
Judge Snyder denied plaintiffs' motion to certify the court's
prior transfer order for interlocutory appeal for lack of
jurisdiction. A copy of Judge Snyder's order dated March 23,
2015, is available at http://is.gd/RxaswXfrom Leagle.com
Plaintiffs, represented by Vera A Weisz -- vera@wilawgroup.com --
Weisz Immigration Law Group
- and -
Ira J Kurzban, Esq.
KURZBAN KURZBAN WEINGER TETZELI AND PRATT PA
Plaza 2650
2650 SW 27th Avenue, 2nd Floor
Miami, FL 33133-3003
Telephone: 305-444-0060
Facsimile: 305-444-3503
Defendants, represented by:
Geoffrey Forney, Esq.
Glenn M Girdharry, Esq.
Sarah Maloney, Esq.
US Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
Telephone: 202-353-1555
UNITED STATES: D.D.C. Judge Dismissed Farmer's Suit
---------------------------------------------------
District Judge Paul L. Friedman of the District of Columbia
granted defendant's motion in the case RONALD L. WHITE et al.,
Plaintiffs, v. TOM VILSACK, Secretary, United States Department of
Agriculture, Defendant, CIVIL ACTION NO. 14-0478 (PLF) (D.D.C.)
The named plaintiff Ronald L. White filed a putative class action
suit against the United States Department of Agriculture (USDA),
based on USDA's historical discrimination against African American
farmers in its provision of farming credit and benefits. Mr. White
invokes the Equal Credit Opportunity Act, Title VI of the Civil
Rights Act of 1964, the constitutional rights to equal protection
and due process protected by the Fifth Amendment, and 42 U.S.C.
Section 1983. Mr. White seeks on behalf of the putative class
unspecified damages, in excess of $75,000.00 each, plus paralegal
fees.
USDA filed a motion to dismiss the complaint under Rules 12(b)(1)
and 12(b)(6) of the Federal Rules of Civil Procedure, arguing that
Mr. White lacks standing, that his claims are otherwise
jurisdictionally barred by the United States' sovereign immunity,
and that his claims are untimely as well as precluded by the
doctrine of res judicata.
Judge Friedman granted USDA's motion to dismiss Mr. White's
complaint with prejudice.
A copy of Judge Friedman's memorandum opinion dated February 19,
2015, is available at http://is.gd/0PaekL from Leagle.com.
RONALD L. WHITE, Plaintiff, Pro Se
THOMAS J. VILSACK, Defendant, represented by:
Tamra Tyree Moore
U.S. DEPARTMENT OF JUSTICE
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
Telephone: 202-514-2000
UNIVERSITY OF NORTH CAROLINA: Settles Whistleblower's Suit
----------------------------------------------------------
Sara Ganim, writing for CNN, reports that the University of North
Carolina will pay whistleblower Mary Willingham $335,000 to settle
her lawsuit with the university, following the largest academic
fraud scandal in NCAA history.
Ms. Willingham is the former athletics literacy counselor who blew
the whistle about the fake classes that went on for nearly 20
years at the prestigious university. Ms. Willingham spent years
fielding attacks from university officials -- including
accusations that she was lying when she said that officials within
the athletic department steered underprepared athletes into the
fake classes to keep them eligible.
For nearly five years, UNC denied those claims, but Ms. Willingham
refused to keep quiet. She first told her story to the News &
Observer in Raleigh, and then to national media when the
university refused to admit that the classes were well-known to
faculty.
The added attention forced UNC to hire a new investigator and
launch a new probe in 2014. That latest review, led by Ken
Wainstein, a 19-year veteran of the U.S. Justice Department, found
exactly what Willingham had always claimed -- widespread and
systematic cheating.
Ms. Willingham left her job last spring after complaining that she
was being retaliated against.
"The University's settlement with Mrs. Willingham resolves all of
the outstanding legal issues in the case," said Rick White,
associate vice chancellor of communications and public affairs.
"We appreciate the efforts of the mediator to help us achieve a
successful and timely conclusion to the mediation . We believe the
settlement is in the best interest of the University and allows us
to move forward and fully focus on other important issues."
When she sued, Ms. Willingham said she hoped to accomplish what no
other investigation has done -- to subpoena documents and to
depose university officials under oath. Her lawsuit never got that
far.
Instead, she says she's hoping that will be accomplished by a
larger class-action lawsuit filed by powerhouse attorney Michael
Hausfeld on behalf of two former UNC athletes. Devon Ramsay and
Rashanda McCants both sued in January, saying they were promised
an education but didn't get one because of the paper class
scandal.
Mr. Hausfeld is the attorney who beat the NCAA last summer in
federal court on behalf of former UCLA player Ed O'Bannon, winning
a case that will forever change college sports by forcing the NCAA
to eliminate the rule that forbids schools from paying players.
That lawsuit is the reason Ms. Willingham says she was OK with
entering into mediation in her whistleblower suit. She shared the
settlement document with CNN.
"It's about the students and not about me. I don't need it to be
about me," Ms. Willingham said. "I got an education, but those
students left without one, and we still have a system that doesn't
work. And so I'm hopeful that (the Hausfeld lawsuit) will move
forward and prove that (NCAA Division I) schools all across the
country have a flawed system where a promise of an education isn't
happening, and therefore these students are getting nothing."
Ms. Willingham is co-founder of Paper Class Inc., which serves as
a portal and rallying point for the college sports reform movement
and includes a program to give students reading help in middle
school.
US ENGINEERING: JaxCo Asbestos Case Obtains Class-Action Status
---------------------------------------------------------------
James Dornbrook, writing for Kansas City Business Journal, reports
that the Missouri Court of Appeals reversed a ruling by a visiting
judge that denied class certification for a lawsuit by people
exposed to asbestos fibers at the Jackson County Courthouse.
The ruling announced on March 17 now allows anyone who worked
inside the courthouse for longer than two consecutive weeks or 80
hours annually since 1983 to join the case as part of a class
action. It overturns a Jackson County circuit court ruling made
in June 2014.
The lawsuit, which stems from a remodeling project at the
courthouse in 1983 and 1984, alleges that contractor U.S.
Engineering Co. didn't properly handle, remove or abate asbestos
fibers from insulation around fittings and pipes. The air
handling units were allegedly not turned off resulting in
witnesses describing seeing asbestos powder coating everything in
various offices and getting tracked through the common areas and
courtrooms. The plaintiffs allege the asbestos was never properly
cleaned up and since asbestos does not decay, it can remain a
danger for decades.
Expert witnesses for the plaintiffs testified that anyone
significantly exposed to asbestos in the courthouse is at a
significantly increased risk for latent disease caused by the
elevated asbestos exposure, "Either (a disease) they've got and
nobody knows about yet or one that will develop in the future."
The plaintiffs, represented by The Accurso Law Firm, seek damages
to set up a medical monitoring program for class members. They
did not list an overall amount of damages they're seeking at this
time.
Defendants in the case are the U.S. Engineering and Jackson
County.
VAN'S INT'L: "Campbell" Suit Moved From C.D. to N.D. California
---------------------------------------------------------------
The class action lawsuit titled Patricia Campbell v. Van's
International Foods Inc., Case No. 2:15-cv-00672, was transferred
from the U.S. District Court for the Central District of
California to the U.S. District Court for the Northern District of
California (Oakland). The Northern District Court Clerk assigned
Case No. 4:15-cv-01509-DMR to the proceeding.
The action is brought on behalf of a national class of consumers,
who have purchased food products made by Van's that were allegedly
falsely and misleadingly advertised, marketed, and labeled as
"totally natural" or "all natural" but which, in fact, contained
one or more synthetic ingredients.
The Plaintiff is represented by:
David C. Parisi, Esq.
Suzanne Havens Beckman, Esq.
PARISI & HAVENS LLP
212 Marine Street, Suite 100
Santa Monica, CA 90405
Telephone: (818) 990-1299
Facsimile: (818) 501-7852
E-mail: dcparisi@parisihavens.com
shavens@parisihavens.com
The Defendant is represented by:
Keri E. Borders, Esq.
Dale J. Giali, Esq.
MAYER BROWN LLP
350 South Grand Avenue, 25th Floor
Los Angeles, CA 90071-1503
Telephone: (213) 229-9500
Facsimile: (213) 625-0248
E-mail: kborders@mayerbrown.com
dgiali@mayerbrown.com
VISA INC: Sued by Holiday Companies Over Antitrust Law Violations
-----------------------------------------------------------------
Holiday Companies, Holiday Stationstores, Inc., Gander Mountain
Company, GMTN Tall Tales, LLC, Overton's, Inc. and Consumers
Marine Electronics, Inc. v. Visa, Inc., Visa U.S.A., Inc., Visa
International Service Association; Mastercard Incorporated, and
Mastercard International Incorporated, Case No. 1:15-cv-01644
(E.D.N.Y., March 27, 2015) seeks damages and injunctive relief for
alleged violations of federal and state antitrust laws.
The Plaintiffs seek injunctive relief to the extent that the
Defendants have not halted their alleged illegal conduct, either
pursuant to the class action settlement in In re Payment Card
Interchange Fee and Merchant Discount Antitrust Litig., Case No.
05-MDL-1720, or otherwise.
Holiday Companies, a Minnesota corporation, has its principal
place of business in Bloomington, Minnesota. Holiday
Stationstores, Inc., a Minnesota corporation, is a wholly-owned
subsidiary of Plaintiff Holiday Companies, and has its principal
place of business in Bloomington. Holiday Companies and Holiday
Stationstores, Inc. own and operate more than 500 fuel and
conveniences stores known as Holiday(R) and Holiday
Stationstores(R), and accept Visa and MasterCard payment cards as
payment for fuel, merchandise, car washes and other services.
Gander Mountain Company is a Minnesota corporation having its
principal place of business in St. Paul, Minnesota. Gander owns
and operates more than 150 outdoor lifestyle stores in 26. GMTN
Tall Tales, LLC, a wholly owned subsidiary of Gander Mountain, is
a Florida limited liability company having its principal place of
business in Palm Beach Gardens, Florida. GMTN owns and operates a
restaurant in Palm Beach Gardens. Overton's, Inc., a wholly owned
subsidiary of Gander Mountain, is a North Carolina corporation
headquartered in Greenville, North Carolina.
Overton's owns and operates boating and watersports stores in
North Carolina and sells boating and watersports merchandise
across the United States through its catalog and Internet
marketing operations. Consumers Marine Electronics, Inc., a
wholly owned subsidiary of Overton's, is a New Jersey corporation
headquartered in Greenville. Until 2009, it owned and operated a
marine electronics store in Wall, New Jersey.
Visa Inc. is a Delaware corporation headquartered in San
Francisco, California. Created through a corporate reorganization
in October 2007, its initial shareholders were Visa U.S.A. Inc.'s
member banks. MasterCard Incorporated, formed in 2001, is a
Delaware stock corporation having its principal place of business
in Purchase, New York.
The Plaintiffs are represented by:
Jason A. Zweig, Esq.
HAGENS BERMAN SOBOL SHAPIRO LLP
555 Fifth Avenue, Suite 1700
New York, NY 10017
Telephone: (212) 856-7227
Facsimile: (917) 210-3980
E-mail: jasonz@hbsslaw.com
- and -
Vincent J. Esades, Esq.
Dylan J. McFarland, Esq.
HEINS MILLS & OLSON, P.L.C.
310 Clifton Avenue
Minneapolis, MN 55403
Telephone: (612) 338-4605
Facsimile: (612) 338-4692
E-mail: vesades@heinsmills.com
dmcfarland@heinsmills.com
WHITE CASTLE: N.D. Ill. Judge Denies Bid for Class Certification
----------------------------------------------------------------
District Judge Joan B. Gottschall of the Northern District of
Illinois, Eastern Division, denied plaintiffs' motion in the case
JIMMY JENKINS and CANDICE ROBERTS, individually and on behalf of
all persons similarly situated, Plaintiffs, v. WHITE CASTLE
MANAGEMENT CO., Defendant, CASE NO. 12 CV 7273 (N.D. Ill.)
White Castle owns and operates "quick-service" restaurants
throughout the United States, including a location in Dolton,
Illinois. Staff is comprised of a General Manager and several
Assistant General Managers, Crew Managers, and Team Members.
Jimmy Jenkins joined the Dolton White Castle as a Team Member in
2006 and held the position until January 9, 2008, when he was
promoted to Crew Manager. Jenkins was suspended in August 2012,
after General Manager Sylvia Anderson suspected him of theft.
During a shift Jenkins supervised, a customer tendered a $20 bill
for an order costing $1.69 but did not receive any change. Jenkins
maintains that he did not steal the change but was nonetheless
ordered by General Manager Anderson to pay $20 back to the store.
Candice Roberts began work at the Dolton White Castle on July 5,
2008 as an Assistant General Manager. (Roberts Dep. at 14:11-
15:1.) She remained in that position until her termination on
December 23, 2013.
Plaintiffs Jenkins and Roberts brought an action on behalf of
themselves and all similarly situated individuals against White
Castle Management Company alleging, among other things, that White
Castle violated the Illinois Wage Payment and Collection Act, 820
ILCS 115/1 et seq. (IWPCA). Plaintiffs allege that they and other
employees made payments to offset drawer and safe shortages.
Plaintiffs further allege that White Castle required employees to
make these payments as a matter of policy.
Plaintiffs moved to certify a class action consisting of "all
persons employed at White Castle's Dolton, Illinois location from
September 2002 to present, who worked and were paid less than the
agreed-to wage rate under their IWPCA Agreement by the practice of
compelled payments."
Judge Gottschall denied plaintiffs' motion for class
certification. A copy of Judge Gottschall's memorandum opinion
and order dated February 25, 2015, is available at
http://is.gd/on8TMV from Leagle.com
Plaintiffs, represented by:
John Craig Ireland, Esq.
THE LAW FIRM OF JOHN C. IRELAND
636 Spruce St.
South Elgin, IL 60177
Telephone: 630-464-9675
White Castle Management Company, Defendant, represented by Edward
Michael Rossman -- emrossman@jonesday.com -- Elizabeth L. Dicus --
eldicus@jonesday.com -- Jonathan Matthew Linas --
jlinas@jonesday.com -- at Jones Day
XOOM CORP: July 2 Hearing Set for Motion to Remand Class Action
---------------------------------------------------------------
The Rosen Law Firm, P.A., a global investor rights firm, on
March 18 issued an update to purchasers of the common stock of
Xoom Corp. XOOM, +3.04% pursuant and/or traceable to its initial
public offering conducted on February 14, 2013. The lawsuit seeks
to recover investors' losses by asserting claims under the federal
securities laws.
The Rosen Law Firm filed the first class action lawsuit on behalf
of Xoom investors. The law firm issued this update to address
questions raised by investors. The Rosen Law Firm filed the class
action suit on behalf of Xoom shareholders in the Superior Court
of the State of California for the County of San Francisco on
January 6, 2015. On February 6, 2015, Xoom filed papers to have
the lawsuit heard in the U.S. District Court for the Northern
District of California. On February 27, 2015, the law firm filed
a motion in the U.S. District Court asking the Court to return the
case back to the Superior Court of San Francisco. That motion is
pending and set for hearing on July 2, 2015. To date, no similar
actions have been filed in U.S. District Court for the Northern
District of California.
NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS
IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN
ONE. YOU MAY CHOOSE TO DO NOTHING AT THIS POINT AND REMAIN AN
ABSENT CLASS MEMBER.
To join the Xoom class action, visit the firm's website at
http://www.rosenlegal.com/cases-504.htmlor contact Phillip Kim,
Esq. or Kevin Chan, Esq. toll-free at 866-767-3653 or via email at
email pkim@rosenlegal.com or kchan@rosenlegal.com for information
on the class action.
If you wish to join the litigation go to
http://www.rosenlegal.com/cases-504.htmlor to discuss your rights
or interests regarding this class action, please contact Phillip
Kim, Esq. or Kevin Chan, Esq. of The Rosen Law Firm toll-free at
866-767-3653 or via e-mail at pkim@rosenlegal.com or
kchan@rosenlegal.com
The Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation.
XTO ENERGY: Motion for Emergency Stay Granted in Part
-----------------------------------------------------
District Judge J. Thomas Marten of the District Court of Kansas
granted in part defendant's motion for emergency stay of the case
WALLACE B. RODERICK REVOCABLE LIVING TRUST, Trustee Amanda
Roderick on behalf of itself And all Others similarly Situated,
Plaintiffs, v. XTO ENERGY, INC., Defendant, CASE NO. 08-1330-JTM-
KMH (D. Kan.)
The plaintiff leases gas wells to XTO Energy, Inc. in exchange for
royalty payments on oil and gas products derived therefrom.
Plaintiff alleges that XTO improperly calculated the royalties
paid to plaintiff by, among other things, deducting costs of
making the gas marketable, deducting conservation fees, and basing
royalties on starting prices derived from sales to defendant's
affiliates. Plaintiff simultaneously filed a motion for class
certification and two motions for partial summary judgment.
XTO moved the court to stay consideration of plaintiff's motions
for partial summary judgment until after a ruling on plaintiff's
second motion for class certification or extend defendant's time
to respond to the partial summary judgment motions beyond the
December 23, 2014, deadline.
Judge Marten granted in part defendant's motion for emergency stay
of consideration to the extent that the court will stay its ruling
on plaintiff's motion for partial summary judgment until after
ruling on plaintiff's motion for class certification. XTO's
alternative request for an extension to reply to plaintiff's
motions for partial summary judgment is denied.
A copy of Judge Marten's memorandum and order dated February 25,
2015, is available at http://is.gd/6QXZDO from Leagle.com
Wallace B. Roderick Revocable Living Trust, Plaintiff, represented
by Barbara C. Frankland -- bfrankland@midwest-law.com -- David E.
Sharp -- dsharp@midwest-law.com -- Joseph R. Gunderson --
jgunderson@midwest-law.com -- Rex A. Sharp -- rsharp@midwest-
law.com -- at Gunderson Sharp, LLP
John W. Fitzgerald, Consol Plaintiff, represented by Barbara C.
Frankland --bfrankland@midwest-law.com -- Rex A. Sharp --
rsharp@midwest-law.com -- at Gunderson Sharp, LLP
Amanda Roderick, Consol Plaintiff, represented by Rex A. Sharp --
rsharp@midwest-law.com -- at Gunderson Sharp, LLP
XTO Energy, Inc., Defendant, represented by Christopher A. Brown
-- cabrown@winstead.com -- Jeffrey C. King -- jking@winstead.com
-- at Winstead PC; Douglas M. Crotty, III -- at Crotty Law Office;
Mark Banner -- mbanner@hallestill.com -- at Hall, Estill,
Hardwick, Gable, Golden & Nelson, PC
OXY USA, Inc., Consol Defendant, represented by Lisa T. Silvestri
-- lsilvestri@gablelaw.com -- Oliver S. Howard --
ohoward@gablelaw.com -- at Gable & Gotwals; Marcia A. Wood --
mawood@martinpringle.com -- Stanford J. Smith, Jr. --
sjsmith@martinpringle.com -- William Rick Griffin --
wrgriffin@martinpringle.com -- at Martin, Pringle, Oliver, Wallace
& Bauer, LLP
YAHOO! INC: Seeks Dismissal of Email Scanning Class Action
----------------------------------------------------------
Wendy Davis, writing for MediaPost, reports that Yahoo is asking a
judge to deny class-action status to a group of people who are
suing the company for scanning their email messages.
The company argues in new court papers that the lawsuit doesn't
lend itself to class-action treatment because one of the key
unresolved issues turns on whether Web users consented to the
scans. Yahoo says that users' consent needs to be litigated on a
case-by-case basis.
The court battle, which dates to October of 2013, stems from
allegations that Yahoo violates email users' privacy by scanning
their messages in order to surround them with ads. The lawsuit
was filed several days after U.S. District Court Judge Lucy Koh in
the Northern District of California ruled that a similar ad
program by Google potentially violates the federal Electronic
Communications Privacy Act. That law prohibits companies from
intercepting communications without users' consent.
The group of Web users suing Yahoo alleges that they didn't have
Yahoo email accounts themselves, and therefore never agreed to the
company's terms of service -- which provide that Yahoo analyzes
all communications in order to display relevant ads.
Yahoo has indicated that it will defend itself, in part, by
arguing that the plaintiffs implicitly consented to the scans,
regardless of whether they read Yahoo's terms of service.
"There is simply no way to determine with evidence common to the
class which nonusers have consented to scanning," Yahoo argues in
papers filed with Judge Koh.
The company says it posted information about its scanning
practices on publicly accessible Web sites, and that the practices
were discussed in news articles. If non-Yahoo accountholders read
those articles, or the publicly posted terms of service, they may
have "impliedly consented" to the scans, Yahoo argues.
If Judge Koh denies class-action status, the people who are suing
can still proceed as individuals, but doing so can be
prohibitively expensive.
Last year, even though Judge Koh ruled that Google's email scans
potentially violate the wiretap law, she refused to allow the
users to proceed as a class. The plaintiffs settled that matter
soon after Judge Koh's decision.
YELLOWBOOK INC: Wins Summary Judgment in "Dubick" Suit
------------------------------------------------------
District Judge Edmond E. Chang of the Northern District of
Illinois, Eastern Division, granted defendant's motion for summary
judgment in the case NORTHSIDE CHIROPRACTIC, INC., and MICHAEL
DUBICK, Plaintiff, v. YELLOWBOOK, INC., formerly known as Yellow
Book Sales and Distribution Company, Inc., Defendant, NO. 09 C
04468 (N.D. Ill.)
In August 2005, Dr. Michael Dubick was approached by sales
representatives from Yellowbook about advertising in Yellowbook's
directory. Until that time, Dubick had been running custom-
designed advertisements for Northside Chiropractic in the Chicago-
Lakeside Yellow Pages. Yellowbook's sales representatives told
Dubick that advertising in Yellowbook would generate far better
sales results than his Chicago-Lakeside advertisement. The sales
representatives promised Dubick that the layout and contents of
the Yellowbook advertisement would be substantially similar to the
custom-designed Chicago-Lakeside advertisement and that they would
send him proofs and final copy for approval before printing.
Dubick decided to go with Yellowbook and signed the form filled
out by the sales representative and paid a $549 deposit. Dubick
believed that the advertisement would be based on his artist-
designed copy and placed under particular headings in the
directory. When the advertisement was ultimately published,
however, it did not meet Dubick's expectations. Dubick filed a
class-action complaint in Illinois state court, alleging breach of
contract and violation of the Illinois Consumer Fraud and
Deceptive Business Practices Act, 815 ILCS 505/1, et seq.
Yellowbook removed the case to federal court based on the Class
Action Fairness Act (CAFA), 28 U.S.C. Section 1332(d). Dubick
moved to certify a class of those who were misled by Yellowbook's
sales tactics. Yellowbook moved for summary judgment.
Judge Chang granted defendant's motion for summary judgment. A
copy of Judge Chang's opinion and order dated March 6, 2015, is
available at http://is.gd/zo1ED0from Leagle.com.
Plaintiffs, represented by Peter A. Cantwell -- peterc@cc-
legal.com -- John William Kalich -- johnk@cc-legal.com -- at
Cantwell & Cantwell; Thomas John Nitschke -- at Blaise & Nitschke,
P.C.
Yellowbook Inc., Defendant, represented by Natalie J. Spears --
natalie.spears@dentons.com -- Tiffany L. Amlot --
tiffany.amlot@dentons.com -- at Dentons US LLP; John Mark Mattox,
II -- jmattox@shb.com -- Patrick L Kenney -- pkenney@shb.com --
Richard Francis Shearer -- rshearer@shb.com -- at Shook Hardy &
Bacon, LlP; Michael L. Starzec -- at Blitt and Gaines, P.C.
* Drug & Device Makers Face More Securities Fraud Class Actions
---------------------------------------------------------------
Ed Silverman, writing for The Wall Street Journal, reports that
shareholders routinely file lawsuits seeking class-action status
against companies alleging securities fraud, but the life sciences
industry is attracting more than its share, according to a new
analysis.
Last year, there were 38 such lawsuits filed against drug makers
and biotechs, along with their directors, officers and key
personnel, which was twice as many as the year before and
significantly higher than at any time in the past six years,
according to the Dechert law firm, which conducted the analysis.
Moreover, a hefty 23% of the 170 securities fraud class-action
lawsuits filed last year were brought against drug and device
makers, which was more than the proportion of such lawsuits filed
against any other industry. And in 2013, 11% of these lawsuits
were filed against life sciences companies.
"There was no regulatory change you could point to or any
suggestion drug makers are doing something wrong," says
David Kotler, a Dechert partner who specializes in securities and
commercial litigation. The law firm, by the way, defends drug
makers, as well as other companies, facing various types of
litigation.
"What we're looking at now, though, is that the stakes in early-
stage product development are so high. And any adverse news can
have a material impact on stock price. So in this environment,
you're more likely to see a securities fraud case."
Most of the litigation focused on companies with smaller market
capitalizations. In 2014, 57% of the life sciences companies sued
for shareholder securities fraud had market caps of less than $500
million. This is in line with previous years -- 61% in 2011, 50%
in 2012 and 63% in 2013. However, there were more lawsuits
involving companies with market caps of $250 million or less -- 15
lawsuits were filed.
The trend reflects how quickly perceptions can change of small
companies with only a few products or products under development,
which is especially true in a heavily regulated industry, says
Kevin LaCroix, an attorney and executive vice president at RT
ProExec, an insurance brokerage, who writes The D&O Diary, a blog
about insurance for company directors and officers.
"So many companies depend on the success or progress of a single
drug or device that if anything happens that harms its prospects
or undermines its commercial potential, the stock price just
plummets," says Mr. LaCroix, who notes that life sciences have
"pretty consistently" been targeted more than other companies with
these types of lawsuits.
But what specifically prompted the recent litigation? Dechert
tallied eight lawsuits citing financial reporting or accounting
improprieties and a similar number listing product safety. Seven
lawsuits cited a failure to disclose information, such as when
clinical trials were completed. Also mentioned was a failure to
disclose insider trading, manufacturing problems, marketing
practices and prospects for FDA approval.
Despite the number of lawsuits, Mr. Kotler says drug and device
makers have fared better than other industries in the early going.
"The cases are generally not as successful for the plaintiffs as
cases in other industries," he says. "Over the last five years,
there was a successful motion to dismiss [a lawsuit] in about 20%
to 25% [of the life sciences litigation]. In other industries, it
was about 10% to 15%."
* In-House Counsel Face More Class Actions, Higher-Exposure Cases
-----------------------------------------------------------------
Melissa Maleske, writing for Law360, reports that more than one in
three general counsel and senior in-house counsel report managing
multiple class actions on an ongoing basis, up from one in four
last year, and they contend with increasingly high-exposure cases,
according to a survey on corporate class action litigation.
Top legal counsel at nearly 350 companies managed on average five
class actions in 2014 and spent $2 billion on class actions. And
according to the survey commissioned by Carlton Fields Jorden Burt
LLP, bet-the-company and high-risk matters comprise 16.4 percent
of the class actions corporate counsel managed in 2014, more than
triple the figure they reported in 2011.
"The trend is toward plaintiffs lawyers filing higher-exposure
cases," says Chris Coutroulis -- ccoutroulis@cfjblaw.com -- a
shareholder at Carlton Fields. "As the law on class actions has
developed -- for the most part in a manner that's been favorable
to companies defending against these actions -- the more routine
cases are probably not as popular as the ones that the plaintiffs
bar view as having a greater possible upside for them."
A string of game-changing U.S. Supreme Court holdings, for
example, have made it more difficult for plaintiffs attorneys to
bring viable class actions. When asked to name the cases with the
greatest influence on class action management, three of the four
that counsel cited addressed certification issues, including Dukes
v. Wal-Mart, still the most influential case nearly four years
after the high court's holding in the case.
"Those cases are taking a harder, more stringent view of whether a
case can be certified, so these cases require a lot more time,
effort and investment," Mr. Coutroulis says. "And my view is that
causes the bigger cases to become more attractive, and we're
seeing more of them."
Corporate counsel reported managing bet-the-company cases that
ranged in exposure from $1 billion to $90 billion. Not
surprisingly, bigger risk equates to higher outside counsel
spending. In a quarter of bet-the-company matters, companies
spend more than $13 million per year per case; in 75 percent of
those cases they spend more than $5 million annually per case.
On average, companies dedicate six in-house individuals to class
action management, including four attorneys. "A handful" of
companies dedicate as many as 25 in-house attorneys -- typically
organizations that face "numerous, ongoing lawsuits," the survey
found. One management strategy that corporate counsel
increasingly favor is making a single individual responsible and
accountable for results. More than half of companies do so, and
the companies that do spend 12.2 percent less overall than other
companies and 14.5 percent less on outside counsel.
Companies are also fighting class actions more strategically. The
survey shows a dramatic drop in companies that take a "defend at
all costs" approach to class actions, with 13.6 percent reporting
they adopt such a philosophy, down from 31.4 percent last year.
"The survey seems to show that corporate counsel are looking at
cases on an individual basis and coming up with a philosophy and a
strategy that makes the most sense for that case," Mr. Coutroulis
says.
It's an approach reflected in companies' increasing reliance on
early case assessment: More than 86 percent of companies conduct
early case assessments, with outside counsel playing an
"essential" or "substantial" role in ECAs at 73 percent of
companies.
The most common class actions are consumer fraud, which comprise
29.6 percent of reported class actions, and labor and employment,
comprising 23.2 percent. But 29 percent of corporate counsel said
they anticipate data privacy will be the next wave of class action
litigation. When the survey was launched in 2012, 10 percent
pegged it as a future concern.
Survey administrators interviewed GCs and legal officers at
companies of a range of industries and sizes. The participants'
companies had average annual revenue of $18.2 billion and median
annual revenue of $4.6 billion.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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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.
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