/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/150428.mbx C L A S S A C T I O N R E P O R T E R Tuesday, April 28, 2015, Vol. 17, No. 84 Headlines ACCESS INSURANCE: Has Made Unsolicited Calls, "Flores" Suit Says AMERICAN ELECTRIC: Customers Can Pursue Price Fixing Claims ANGIE'S LIST: Settlement Terms in "Fritzinger" Case Okayed ANGIE'S LIST: Defendants to File Motion to Dismiss 2 Class Suits ANTHEM INC: Faces "Smith" Suit in Pa. Over Alleged Data Breach ASTROS FOOD: Faces "Perez" Suit Over Failure to Pay Overtime AT&T MOBILITY: Judge Refuses to Dismiss Antitrust Suit ATLANTIC POWER: Lead Plaintiff in Mass. Suit Filed Brief Letter ATLANTIC POWER: May 20 & 21 Hearings on Certification Motions AVIV REIT: Faces Four Putative Class Actions BANK OF NEW YORK: Class Suit Belongs in State Court, 9th Circuit BAXTER INTERNATIONAL: Recalls Multiple Intravenous Solutions BJ'S WHOLESALE: Improperly Charges Sales Tax in Fla., Suit Says BLOOMINGBURG, NY: Appeal in Catskills Annexation Deemed Untimely BOULDER BRANDS: Motion to Dismiss California Action Still Pending BOULDER BRANDS: All Activity in New York Action Stayed CARLYLE GROUP: Awaits Court Ruling on Class Action Settlement CASTLIGHT HEALTH: Faces Class Suit Related to Initial Offering CHAUFFEURED EXECUTIVE: Sued Over Failure to Pay Overtime Wages CHIQUITA BRANDS: Sued Over Damages Caused by Banana Production CORELOGIC INC: Final Fairness Hearing Held in RESPA Case Deal CRICKET WIRELESS: Misled Consumers Into Buying Phones, Suit Says DREAMWORKS ANIMATION: Suit Alleging Wage Suppression Dismissed ENTERGY CORP: Parties in Texas Power Price Lawsuit Await Ruling EXPRESS SCRIPTS: Faces "Infante" Suit Over Failure to Pay OT FACEBOOK INC: Faces Suit for Illegally Acquiring Biometric Data FIRST FINANCIAL: Sued Over Unlawful Telemarketing Practices FMS INVESTMENT: Sued Over Unlawful Telemarketing Practices FORCEFIELD ENERGY: Sued in N.Y. Over misleading Financial Reports FREDERICKSBURG CARE: Malpractice Arbitration Raises Concerns G4S SECURE: Face "Lubin" Suit Over Failure to Pay Overtime Wages GOGO LLC: Consumers Can Pursue Suit Over Automatic Renewals GOOGLE INC: Settles for $8.5MM With Class in Privacy Litigation GOOGLE INC: Court Refuses to Certify Class in Parents' App Suit GOVERNMENT SUPPORT: "Cardine" Suit Seeks to Recover Unpaid OT HAWAIIAN ELECTRIC: Faces 8 Class Actions on Merger Agreement HMSHOST CORPORATION: Faces "Reznik" Suit Over Failure to Pay OT INTERNAL REVENUE: Asked to Reveal Who Applied for Tax-Exempt INTERNATIONAL PAPER: Tennessee Class Action in Preliminary Stage INTERNATIONAL PAPER: Executed Settlement in Gypsum Class Action INTERNATIONAL PAPER: Canadian Class Actions in Preliminary Stage INTERTHINX INC: "Weber" Suit Seeks to Recover Unpaid Overtime KARESH GLASS: Faces "Gonzalez" Suit Over Failure to Pay Overtime KIND LLC: Faces "Kaufer" Suit Over Products Misbranding KIND LLC: Faces "McDonald" Suit in Cal. Over Product Misbranding LA GUADALUPANA: Recalls Hot Chicken, Hot Pork & Vegan Tamales LEGGETT & PLATT: No Ruling Yet on US Direct Purchaser Settlement LEGGETT & PLATT: Ohio Court Ordered Non-Binding Mediation LEGGETT & PLATT: US Direct Purchaser Cases to Be Tried in Ohio LEGGETT & PLATT: "Restraint of Trade Act" Cases to Be Remanded LEGGETT & PLATT: Provides Update on Canadian Class Actions LEGGETT & PLATT: No Ruling Yet on Class Cert Bid in Missouri Case LIVE NATION: Accrued $34.9MM Related to Ticketing Fees Settlement LONG ISLAND: "Guan" Suit Seeks to Recover Unpaid Overtime Wages MACHINE ZONE: Accused of Wrongful Conduct Over Mobile Application MARIO'S PIZZERIA: Faces "Gomez" Suit Over Failure to Pay Overtime MARRIOTT VACATIONS: Final Hearing Held to Approve "Benner" Accord MARRIOTT VACATIONS: Partial Judgment Motion Granted in Hoyt Case MARRIOTT VACATIONS: Court Dismissed "DeSantis" Case MARRIOTT VACATIONS: 9th Cir. Granted Motion to Expedite Appeal MICHAELS STORES: Class Actions Over Credit Checks Consolidated NETFLIX INC: 9th Circuit Affirms Dismissal of "Cullen" ADA Suit NOMAC DRILLING: Sued Over Failure to Provide Layoff Notice NOVAK HOSPITALITY: Faces "Galvan" Suit over Failure to Pay OT NOVARTIS: Bellwether Suit Over Bone Loss Drug Zometa Settled OASIS PETROLEUM: To Defend Claims Connected to Train Derailment PRINCIPAL LIFE: Sued in Iowa Over High Investment Products Fees PROCTOR & GAMBLE: Suit Claims Denture Cause Neurological Damage PROMPT MEDICAL: Faces "Schroers" Suit Over Failure to Pay OT PROTECTIVE LIFE: Four Lawsuits Filed on Dai-ichi Merger QC FINANCIAL: Sued in C.D. Cal. Over Alleged Invasion of Privacy RCI HOSPITALITY: Settles Labor Suit With Strippers for $15-Mil. REALOGY HOLDINGS: "Bararsani" Case in Discovery Phase RELIABLE RUNNERS: Faces "Walker" Suit Over Failure to Pay OT SABRA DIPPING: Recalls Classic Hummus Products Due to Listeria SKIPPY'S GYROS: Faces "Marquez" Suit Over Failure to Pay Overtime SMS MARKETING: Sued in N.D. Cal. for Making Unsolicited Calls SPANSION INC: Inks MOU in Class Action Over Cypress Deal SS&C TECHNOLOGIES: Millennium Class Action in NY Has Concluded ST. JUDE MEDICAL: Preliminary Approval Hearing Held in Settlement ST. JUDE MEDICAL: To File Response to Class Certification Bid STERLING JEWELERS: Class Arbitration Allows Disparate Impact TESLA MOTORS: Plaintiffs' Appeal in Class Action Still Pending TEXAS PECAN: Recall Macadamia Nuts Due to Salmonella TRANSOCEAN LTD: Plaintiffs File Opening Brief in Appeal TRINITY INFRASTRUCTURES: Homeowners Fight LBJ Highway Project TURN INC: Sued for Using Secret Zombie Cookies in Mobile Devices UBER TECHNOLOGIES: Has Sent Unsolicited Text Messages, Suit Says UBER TECHNOLOGIES: Retains Gibson as New Counsel as Trial Looms UNIVERSAL HEALTH: Posts $27.1MM After-Tax Charge From Accord WAL-MART STORES: Court Refuses to Junk Suit by Assistant Managers WEBPRESENCE INC: Has Made Unsolicited Calls, "Blotzer" Suit Says WEST EAST: "Mariscal" Suit Seeks to Recover Unpaid Overtime Wages WORLD WIDE GOURMET: Recalls Teriyaki Salmon Jerky Due to Wheat WPX ENERGY: Royalty Litigation Parties to Seek Stay of New Suit WPX ENERGY: Facing Class Action in New Mexico Court YOUNG HOSPITALITY: Faces "Venancio" Suit Over Failure to Pay OT * Plaintiffs Counsel Face Challenge in Filing Arbitration Claims * Recent Tobacco Ruling May Hit Florida Smokers' Tort Lawsuits * Tort Reforms Groups Back Asbestos Litigation Bill ********* ACCESS INSURANCE: Has Made Unsolicited Calls, "Flores" Suit Says ---------------------------------------------------------------- Ned Flores, individually and on behalf of all others similarly situated v. Access Insurance Company, Case No. 2:15-cv-02883-CAS- AGR (C.D. Cal., April 17, 2015), seeks to put an end on the Defendant's practice of making calls on the class members' cellular telephone for non-emergency purpose using an automatic dialing system. Access Insurance Company owns and operates an insurance company with a headquarters at 3 Ravinia Dr. NE, Suite 400, Atlanta, GA, 30346. The Plaintiff is represented by: Abbas Kazerounian, Esq. KAZEROUNI LAW GROUP, APC 245 Fischer Avenue, Unit D1 Costa Mesa, CA 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 E-mail: ak@kazlg.com - and - Joshua B. Swigart, Esq. HYDE & SWIGART 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108-3551 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 E-mail: josh@westcoastlitigation.com AMERICAN ELECTRIC: Customers Can Pursue Price Fixing Claims ----------------------------------------------------------- The Associated Press reports that the Supreme Court ruled on April 21 that energy companies can be sued under state antitrust laws for illegally manipulating natural gas prices more than a decade ago during California's energy crisis. The justices on April 21 ruled 7-2 against American Electric Power Co., Duke Energy Co. and other natural gas traders arguing that federal law precludes state law claims. Natural gas customers allege the companies falsely reported data to industry trade publications, leading to higher gas prices. A federal district court sided with the gas traders. But the 9th U.S. Circuit Court of Appeals in San Francisco reversed and said retail buyers of natural gas could go forward with their lawsuit. The Supreme Court agreed in an opinion by Justice Stephen Breyer, who wrote that the state claims at issue are directed at retail pricing within the province of states and not pre-empted by federal law. Among the consumers who sued over rise in gas prices are manufacturers Learjet, Inc., and Briggs & Stratton Corp., as well as a Colorado brewery, a Kansas school district, a Wisconsin college and a Missouri hospital. Chief Justice John Roberts and Justice Antonin Scalia dissented in Oneok v. Learjet, 13-271. ANGIE'S LIST: Settlement Terms in "Fritzinger" Case Okayed ---------------------------------------------------------- Angie's List, Inc. said in an exhibit to its Form 10-Q/A Report filed with the Securities and Exchange Commission on February 26, 2015, for the quarterly period ended September 30, 2014, that the court has issued an order approving the parties' proposed settlement terms in the case Fritzinger v. Angie's List, Inc. (Southern District of Indiana, Indianapolis). A federal class action lawsuit was filed against the Company by member Marie Fritzinger. The suit, while not about the Company's automatic renewal practices, alleges that the Company used its automatic renewal authority to take advantage of members, claiming it increases prices for subscriber renewals without informing them and uses confusing language on its website. The claims center around the Company's alleged breach of the "plain language of its Membership Agreement," by claiming that the Company automatically renews its members at a more costly fee. Before the date by which the court would have determined whether to certify the proposed class, the parties reached a tentative settlement. After the period of notice was exhausted and a Court Hearing held on September 17, 2014, on September 22, 2014 the court issued an Order approving the parties' proposed settlement terms. ANGIE'S LIST: Defendants to File Motion to Dismiss 2 Class Suits ---------------------------------------------------------------- Angie's List, Inc. said in an exhibit to its Form 10-Q/A Report filed with the Securities and Exchange Commission on February 26, 2015, for the quarterly period ended September 30, 2014, that Defendants will vigorously defend and intend to file a Motion to Dismiss the cases Baron v. Angie's List, Inc., Oesterle, Hicks, Hundt, Millard, Thapar, 1:13-cv-2032 (S.D. Ind., 2013); and Bartolone v. Angie's List, Inc., Oesterle, Hicks, Hundt, Millard, Thapar, 1:14-cv-0023 (S.D. Ind., 2014). Two nearly identical class action securities lawsuits have been filed against the Company and naming the CEO as a co-defendant. The suits allege that Defendants are liable for (1) making false statements or (2) failing to disclose adverse facts known to them about the Company. It further alleges that Defendants' fraudulent scheme was a success as it (a) deceived the investing public in regards to the Company's prospects and business; (b) artificially inflated the price of the Company's stock; (d) caused other members of the class to purchase ANGI stock at artificially inflated prices. The complaints request unspecified damages, interest, and costs, as well as ancillary relief. On June 16, 2014, the Court consolidated the two cases and appointed United Food & Commercial Workers Local 464A Pension Fund as lead plaintiff ("Local 464A"). On August 29, 2014, Lead Plaintiff filed its consolidated Amended Complaint (the "Amended Complaint"). Although the class period has not changed (February 13, 2013 through October 23, 2013), the allegations in the Amended Complaint, for the most part, are different from the original complaints filed in December 2013. The Amended Complaint alleges that the Company made material misrepresentations and omissions regarding its paid membership model ("PPM"). The Defendants believe this case to be without merit and will vigorously defend against them and intend to file a Motion to Dismiss. The Company, officers and directors are covered under the D&O insurance policies and notice has been provided to all carriers. The Company will closely monitor and work with the carriers to ensure coverage. ANTHEM INC: Faces "Smith" Suit in Pa. Over Alleged Data Breach -------------------------------------------------------------- David Smith, individually and on behalf of all others similarly situated v. Anthem, Inc., et al., Case No. 2:15-cv-00508-JFC (W.D. Pa., April 17, 2015), is brought against the Defendant for failure to provide adequate security and protection for its computer systems containing patient's personally identifiable information and personal health information. Anthem Inc. is an Indiana corporation that owns and operates a managed health care company. The Plaintiff is represented by: D. Aaron Rihn, Esq. ROBERT PEIRCE & ASSOCIATES, P.C. 2500 Gulf Tower, 707 Grant Street Pittsburgh, PA 15219 Telephone: (412) 281-7229 E-mail: arihn@peircelaw.com ASTROS FOOD: Faces "Perez" Suit Over Failure to Pay Overtime ------------------------------------------------------------ Maria Degabriel Perez v. Misael Hernandez and Astros Food Corp. d/b/a Athens Grill, Case No. 1:15-cv-02211 (E.D.N.Y., April 17, 2015), seeks to recover unpaid overtime wages in violation of the Fair Labor Standard Act. The Defendants own and operate a restaurant in Queens, New York. The Plaintiff is represented by: Lloyd Robert Ambinder, Esq. VIRGINIA & AMBINDER LLP 40 Broad Street, 7th Floor New York, NY 10004 Telephone: (212) 943-9080 Facsimile: (212) 943-9082 E-mail: lambinder@vandallp.com AT&T MOBILITY: Judge Refuses to Dismiss Antitrust Suit ------------------------------------------------------ Amanda Bronstad, writing for The National Law Journal, reports that in 2010, Circuit Judge Richard Posner refused to dismiss antitrust litigation filed over the price of text messages. On April 9, he struck down the same lawsuit. In an opinion, Judge Posner, of the U.S. Court of Appeals for the Seventh Circuit, wrote that the plaintiffs hadn't provided enough evidence that there was actual collusion in violation of the Sherman Act, the federal antitrust law. The four leading wireless carriers in the case -- AT&T Mobility LLC, Verizon Wireless Inc., Sprint Corp. and T-Mobile US Inc. -- might have raised prices at about the same time because they were competitors in a tight market, he said. "We hope this opinion will help lawyers understand the risks of invoking 'collusion' without being precise about what they mean," Judge Posner wrote. "Tacit collusion, also known as conscious parallelism, does not violate Section 1 of the Sherman Act. Collusion is illegal only when based on agreement." Plaintiffs attorney Patrick Coughlin -- patc@rgrdlaw.com -- of counsel at San Diego's Robbins Geller Rudman & Dowd, said he planned to petition a Seventh Circuit en banc panel for a rehearing or appeal to the U.S. Supreme Court. He said the opinion was "anything but illuminating." "Is that what you have to find? That one of these executives has to explicitly admit it?" he said. "If that's the standard . . . it really puts damage in private enforcement of antitrust laws, which are key to the enforcement scheme." Verizon attorney Aaron Panner -- apanner@khhte.com -- a partner at Washington's Kellogg, Huber, Hansen, Todd, Evans & Figel, who argued the case before the Seventh Circuit, did not respond to a request for comment. Dozens of lawsuits, later coordinated before U.S. District Judge Matthew Kennelly of the Northern District of Illinois, were brought against the four carriers, which owned 90 percent of the cellphone market at the time, and a trade association to which they belonged. The plaintiffs alleged the carriers conspired between 2005 and 2008 to increase the price of single text messages -- a marketing structure they eventually replaced with bundling plans. The case accompanied a U.S. Department of Justice probe, later dropped, into why the carriers had increased the price of a text message to 20 cents within weeks of each other. In 2010, the same panel, taking up an interlocutory appeal, refused to dismiss the lawsuit. That decision was closely watched for its application of the U.S. Supreme Court's heightened pleading standards in Bell Atlantic Corp. v. Twombly. At the time, Judge Posner wrote that the plaintiffs had several factors in their favor, including an alleged sudden price change. "What is missing, as the defendants point out, is the smoking gun in a price-fixing case: direct evidence, which would usually take the form of an admission by an employee of one of the conspirators, that officials of the defendants had met and agreed explicitly on the terms of a conspiracy to raise price," he wrote. "Discovery may reveal the smoking gun." But it did not. What the plaintiffs posited as a smoking gun -- a pair of emails between two T-Mobile executives -- wasn't enough to reverse the trial judge's grant of summary judgment in the case, Posner wrote on April 9. The plaintiffs' reliance on those emails, he wrote, demonstrates their "failure to understand the fundamental distinction between express and tacit collusion." "Competitors in concentrated markets watch each other like hawks," he wrote. "We can, moreover, without suspecting illegal collusion, expect competing firms to keep close track of each other's pricing and other market behavior." ATLANTIC POWER: Lead Plaintiff in Mass. Suit Filed Brief Letter --------------------------------------------------------------- Atlantic Power Corporation said in its Form 10-K Report filed with the Securities and Exchange Commission on February 26, 2015, for the fiscal year ended December 31, 2014, that in the Massachusetts District Court class action lawsuits, the Lead Plaintiff has filed a brief letter identifying supplemental authorities and Defendants have filed a response. On March 8, 14, 15 and 25, 2013 and April 23, 2013, five purported securities fraud class action complaints were filed by alleged investors in Atlantic Power common shares in the United States District Court for the District of Massachusetts (the "District Court") against Atlantic Power and Barry E. Welch, the Company's former President and Chief Executive Officer and a former Director of Atlantic Power, in each of the actions, and, in addition to Mr. Welch, some or all of Patrick J. Welch, the Company's former Chief Financial Officer, Lisa Donahue, the Company's former interim Chief Financial Officer, and Terrence Ronan, the Company's current Chief Financial Officer, in certain of the actions (the "Proposed Individual Defendants," and together with Atlantic Power, the "Proposed Defendants") (the "U.S. Actions"). The District Court complaints differed in terms of the identities of the Proposed Individual Defendants they named, the named plaintiffs, and the purported class period they alleged (July 23, 2010 to March 4, 2013 in three of the District Court actions and August 8, 2012 to February 28, 2013 in the other two District Court actions), but in general each alleged, among other things, that in Atlantic Power's press releases, quarterly and year-end filings and conference calls with analysts and investors, Atlantic Power and the Proposed Individual Defendants made materially false and misleading statements and omissions regarding the sustainability of Atlantic Power's common share dividend that artificially inflated the price of Atlantic Power's common shares. The District Court complaints assert claims under Section 10(b) and, against the Proposed Individual Defendants, under Section 20(a) of the Securities Exchange Act of 1934, as amended. The parties to each District Court action filed joint motions requesting that the District Court set a schedule in the District Court actions, including: (i) setting a deadline for the lead plaintiff to file a consolidated amended class action complaint (the "Amended Complaint"), after the appointment of lead plaintiff and counsel; (ii) setting a deadline for Proposed Defendants to answer, file a motion to dismiss or otherwise respond to the Amended Complaint (and for subsequent briefing regarding any such motion to dismiss); and (iii) confirming that the Proposed Defendants need not answer, move to dismiss or otherwise respond to any of the five District Court complaints prior to the filing of the Amended Complaint. On May 7, 2013, each of six groups of investors (the "U.S. Lead Plaintiff Applicants") filed a motion (collectively, the "U.S. Lead Plaintiff Motions") with the District Court seeking: (i) to consolidate the five U.S. Actions (the "Consolidated U.S. Action"); (ii) to be appointed lead plaintiff in the Consolidated U.S. Action; and (iii) to have its choice of lead counsel confirmed. On May 22, 2013, three of the U.S. Lead Plaintiff Applicants filed oppositions to the other U.S. Lead Plaintiff Motions, and on June 6, 2013, those three Lead Plaintiff Applicants filed replies in support of their respective motions. On August 19, 2013, the District Court held a status conference to address certain issues raised by the U.S. Lead Plaintiff Motions, entered an order consolidating the five U.S. Actions, and directed two of the six U.S. Lead Plaintiff Applicants to file supplemental submissions by September 9, 2013. Both of those U.S. Lead Plaintiff Applicants filed the requested supplemental submissions, and then sought leave to file additional briefing. The Court granted those requests for leave and additional submissions were filed on September 13 and September 18, 2013. On March 31, 2014, the Court entered an order consolidating the five individual U.S. Actions, appointing the Feldman, Shapero, Carter and Smith investor group (one of the six U.S. Lead Plaintiffs Applicants) as Lead Plaintiff and approving Lead Plaintiff's selection of counsel. The Court also granted the parties' joint motion regarding initial case scheduling and directed the parties to resubmit a proposed schedule that contains specific dates. In response to that directive, on April 7, 2014, Lead Plaintiff filed an application and proposed order, which sought an extension of the schedule contained in the joint motion. The application and proposed order requested that: (i) Lead Plaintiff be permitted to file an amended complaint on or before May 30, 2014, (ii) the Proposed Defendants be permitted to move to dismiss or otherwise respond to the amended complaint on or before July 29, 2014, (iii) Lead Plaintiff be permitted to file an opposition, if any, on or before September 24, 2014, and (iv) the Proposed Defendants be permitted to file a reply to Lead Plaintiff's opposition on or before November 13, 2014. Proposed Defendants did not object to the schedule proposed by Lead Plaintiff. On May 29, 2014, Lead Plaintiff filed a renewed application and proposed order, which sought another extension of the schedule, and on June 3, 2014, Lead Plaintiff and the Proposed Defendants jointly filed a stipulation and proposed order requesting the following revised schedule: (i) Lead Plaintiff be permitted to file an amended complaint on or before June 6, 2014, (ii) the Proposed Defendants be permitted to move to dismiss or otherwise respond to the amended complaint on or before August 5, 2014, (iii) Lead Plaintiff be permitted to file an opposition, if any, on or before October 6, 2014, and (iv) the Proposed Defendants be permitted to file a reply to Lead Plaintiff's opposition on or before November 20, 2014. On June 3, 2014, the Court entered an order setting this requested schedule. On June 6, 2014, Lead Plaintiff filed the amended complaint (the "Amended Complaint"). The Amended Complaint names as defendants Barry E. Welch and Terrence Ronan (the "Individual Defendants") and Atlantic Power (together with the Individual Defendants, the "Defendants") and alleges a class period of June 20, 2011 to March 4, 2013 (the "Class Period"). The Amended Complaint makes allegations that are substantially similar to those asserted in the five initial complaints. Specifically, the Amended Complaint alleges, among other things, that in Atlantic Power's press releases, quarterly and year-end filings and conference calls with analysts and investors, Defendants made materially false and misleading statements and omissions regarding the sustainability of Atlantic Power's common share dividend, which artificially inflated the price of Atlantic Power's common shares during the class period. The Amended Complaint continues to assert claims under Section 10(b) and, against the Individual Defendants, under Section 20(a) of the Securities Exchange Act of 1934, as amended. It also asserts a claim for unjust enrichment against the Individual Defendants. In accordance with the schedule referenced above, Defendants filed their motion to dismiss the consolidated (the "Motion to Dismiss") U.S. Action on August 5, 2014. On September 30, 2014, citing Atlantic Power's September 16, 2014 announcement of changes to its dividend and its President and CEO transition, Lead Plaintiff filed a motion (the "Extension Motion") requesting a thirty-day extension of its October 6, 2014 deadline for filing its brief in opposition to the Motion to Dismiss, in which to determine whether to file a second amended complaint. On October 2, 2014, the Court entered an order (i) extending Lead Plaintiff's deadline to file its opposition to the Motion to Dismiss to October 10, 2014 and (ii) requiring Defendants to file their opposition to the Extension Motion by October 2, 2014. In accordance with this order, on October 2, 2014, Defendants filed their opposition to the Extension Motion. On October 10, 2014, Lead Plaintiff filed its opposition to the Motion to Dismiss (the "Opposition") and also filed a motion for leave to amend the Amended Complaint, attaching a proposed second amended complaint. On October 21, 2014, Lead Plaintiff and Defendants filed a joint scheduling motion requesting (i) November 7, 2014 as the deadline for Defendants to file their opposition to Lead Plaintiff's motion for leave to amend the Amended Complaint; (ii) November 24, 2014 as the deadline for Defendants to file their reply in further support of the Motion to Dismiss; and (iii) November 24, 2014 as the deadline for Lead Plaintiff to file its reply in further support of its motion for leave to amend the Amended Complaint. On October 22, 2014, the Court entered an order setting this requested schedule. Pursuant to that order, the Motion to Dismiss and Extension Motion were fully briefed on November 24, 2014. On January 22, 2015, the Court held oral argument on the Motion to Dismiss and Extension Motion. On January 30, 2015, Lead Plaintiff filed a motion for leave to file a supplemental submission in opposition to Defendants' motion to dismiss (the "Motion for Leave"). The Court denied the Motion for Leave in an order entered on February 5, 2015, but permitted Lead Plaintiff to submit a brief letter identifying supplemental authorities. Lead Plaintiff filed that letter on February 9, 2015, and Defendants filed a response on February 10, 2015. Pursuant to the Private Securities Litigation Reform Act of 1995, all discovery is stayed in the U.S. Actions. Plaintiffs have not yet specified an amount of alleged damages in the U.S. Actions. ATLANTIC POWER: May 20 & 21 Hearings on Certification Motions ------------------------------------------------------------- Atlantic Power Corporation said in its Form 10-K Report filed with the Securities and Exchange Commission on February 26, 2015, for the fiscal year ended December 31, 2014, that in the Canadian securities class actions, a hearing of the Plaintiffs' leave and certification motions on May 20-21, 2015. On March 19, 2013, April 2, 2013 and May 10, 2013, three notices of action relating to Canadian securities class action claims against the Proposed Defendants were also issued by alleged investors in Atlantic Power common shares, and in one of the actions, holders of Atlantic Power convertible debentures, with the Ontario Superior Court of Justice in the Province of Ontario. On April 8, 2013, a similar claim issued by alleged investors in Atlantic Power common shares seeking to initiate a class action against the Proposed Defendants was filed with the Superior Court of Quebec in the Province of Quebec (the "Canadian Actions"). On April 17, May 22, and June 7, 2013 statements of claim relating to the notices of action were filed with the Ontario Superior Court of Justice in the Province of Ontario. On August 30, 2013, the three Ontario actions were succeeded by one action with an amended claim being issued on behalf of Jacqeline Coffin and Sandra Lowry. As in the U.S. Action, this claim names the Company, Barry E. Welch and Terrence Ronan as Defendants. The Plaintiffs seek leave to commence an action for statutory misrepresentation under the Ontario Securities Act and assert common law claims for misrepresentation. The Plaintiffs' allegations focus on, among other things, claims the Defendants made materially false and misleading statements and omissions in Atlantic Power's press releases, quarterly and year-end filings and conference calls with analysts and investors, regarding the sustainability of Atlantic Power's common share dividend that artificially inflated the price of Atlantic Power's common shares. The Plaintiffs seek to certify the statutory and common law claims under the Class Proceedings Act for security holders who purchased and held securities through a proposed class period of November 5, 2012 to February 28, 2013. On October 4, 2013, the Plaintiffs delivered materials supporting their request for leave to commence an action for statutory misrepresentations and for certification of the statutory and common claims as class proceedings. These materials estimate the damages claimed for statutory misrepresentation at $197.4 million. Between June 2014 and January 2015, the Defendants and Plaintiffs exchanged responding and reply materials. A schedule for the Plaintiffs' leave and certification motions was set in December 2014. It provides for a hearing of the Plaintiffs' motions on May 20-21, 2015. The proposed class action in Quebec is stayed until March 30, 2015. The plaintiffs in the Canadian Action have estimated their alleged statutory damages at $197.4 million. AVIV REIT: Faces Four Putative Class Actions -------------------------------------------- AVIV REIT, Inc., and AVIV Healthcare Properties Limited Partnership said in their Form 10-K Report filed with the Securities and Exchange Commission on February 26, 2015, for the fiscal year ended December 31, 2014, that four putative class actions have been filed by purported stockholders of AVIV against AVIV, its directors, Omega and Omega's merger sub challenging the merger of AVIV and Omega in the Circuit Court of Maryland, Baltimore County. The class actions were filed on November 10, 2014, November 17, 2014, November 24, 2014 and December 2, 2014. Each plaintiff filed an amended complaint on January 22, 2015. The lawsuits seek injunctive relief preventing the parties from consummating the merger, rescission of the transactions contemplated by the merger agreement, imposition of a constructive trust in favor of the class upon any benefits improperly received by the defendants, compensatory damages, and litigation costs including attorneys' fees. The four lawsuits were consolidated on January 28, 2015 under the title In Re Aviv REIT Inc. Stockholder Litigation, Case No. 24-C-14-006352. In addition, AVIV's Board of Directors has received a stockholder litigation demand letter dated November 17, 2014, from a law firm representing Gary Danley, who is the named plaintiff in the putative class action filed on November 24, 2014 in Circuit Court of Maryland, Baltimore County. The letter alleges that the directors of AVIV violated fiduciary duties to AVIV, and demands that the AVIV Board of Directors take action to ensure that the consideration provided in the merger is fair to AVIV and its stockholders and otherwise seek appropriate remedies for AVIV. "We believe that these actions have no merit and intend to defend vigorously against them," the Company said. BANK OF NEW YORK: Class Suit Belongs in State Court, 9th Circuit ---------------------------------------------------------------- Courthouse News Service reports that a class action against Bank of New York Mellon over its administration of $16 million in bonds earmarked for the Jensen River Ranch project belongs in state court because of the securities exception to the Class Action Fairness Act, the 9th Circuit ruled April 2. The Plaintiff-Appellee is represented by: Robert Branch, Esq. THORNTON LAW GROUP, P.C. 1725 N Fine Ave. Fresno, CA 93727 Telephone: (559) 400-8999 E-mail: rbranch@rbtlawfirm.com - and - Douglas V. Thornton, Esq. RUMMONDS THORNTON, LLP Central Valley 1725 North Fine Avenue Fresno, CA 93727 Telephone: (559) 400-8999 Facsimile: (559) 492-3385 The Defendant-Appellant is represented by: David J. Bird, Esq. James C. Martin, Esq. Eric A. Schaffer, Esq. Benjamin J. Sitter, Esq. REED SMITH LLP Reed Smith Centre 225 Fifth Avenue Pittsburgh, PA 15222 Telephone: (412) 288-3131 Facsimile: (412) 288-3063 E-mail: dbird@reedsmith.com jcmartin@reedsmith.com eschaffer@reedsmith.com bsitter@reedsmith.com - and - Donald H. Glasrud, Esq. DIETRICH, GLASRUD, MALLEK & AUNE Fig Garden Financial Center 5260 N. Palm Avenue, Suite 205 Fresno, CA 93704 Telephone: (559) 435-5250 Facsimile: (559) 435-8776 E-mail: dhg@dgmalaw.com The appellate case is Eminence Investors, L.L.L.P., an Arkansas Limited Liability Limited Partnership, Individually, and on behalf of all others similarly situated, Plaintiff-Appellee v. Bank of New York Mellon, a New York Banking Corporation, Defendant- Appellant, Case No. 15-15237, in the United States Court of Appeals for the Ninth Circuit. The District Court case is Eminence Investors, L.L.L.P. v. Bank of New York Mellon, Case No. 1:13-cv-02025-AWI-MJS, in the U.S. District Court for the Eastern District of California. BAXTER INTERNATIONAL: Recalls Multiple Intravenous Solutions ------------------------------------------------------------ Baxter International Inc. announced it is voluntarily recalling select lots of intravenous (IV) solutions to the hospital/user level due to the potential presence of particulate matter. Intravenous administration of a solution containing sterile particulate matter may lead to adverse health consequences. The extent and severity of harm depends on the size, number, and composition of the foreign material, and patient's underlying medical condition. In the absence of in-line filtration, these particles may cause: local vein irritation, inflammatory reaction, aggravation of preexisting infections, allergic reactions, and systemic embolization. In high-risk patients this may lead to serious adverse health consequences. While Baxter manufacturing personnel were performing routine maintenance, particulate matter was detected and identified as material from a solution transmission system pump. There have been no adverse events or product complaints associated with this issue reported to Baxter. Products affected by this recall are listed in the following table: Product NDC Product Lot Manufacturing Expiration Code Number Name Number Date Date ------- ------ ------- ------ ------------- ---------- 2B1322Q 0338- 0.9% Sodium C965038 01/20/2015 07/31/2016 0049-02 Chloride Injection, USP (250mL) 2B1322Q 0338- 0.9% Sodium C965293 1/22/2015 07/31/2016 0049-02 Chloride Injection, USP (250mL) 2B1322Q 0338- 0.9% Sodium C963785 01/09/2015 07/31/2016 0049-02 Chloride Injection, USP (250mL) 2B1322Q 0338- 0.9% Sodium C963884 01/10/2015 07/31/2016 0049-02 Chloride Injection, USP (250mL) 2B1322Q 0338- 0.9% Sodium C963660 01/08/2015 07/31/2016 0049-02 Chloride Injection, USP (250mL) 2B1322Q 0338- 0.9% Sodium C964320 01/14/2015 07/31/2016 0049-02 Chloride Injection, USP (250mL) 2B1322Q 0338- 0.9% Sodium C964486 01/15/2015 07/31/2016 0049-02 Chloride Injection, USP (250mL) 2B1322Q 0338- 0.9% Sodium C964890 01/19/2015 07/31/2016 0049-02 Chloride Injection, USP (250mL) 2B0162Q 0338- 10% Dextrose C965558 01/24/2015 07/31/2016 0023-02 Injection, USP (250mL) 2B0162Q 0338- 10% Dextrose C963520 01/07/2015 07/31/2016 0023-02 Injection, USP (250mL) 2B0062Q 0338- 5% Dextrose C963413 01/06/2015 07/31/2016 0017-02 Injection, USP (250mL) 2B0062Q 0338- 5% Dextrose C963413A 01/06/2015 07/31/2016 0017-02 Injection, USP (250mL) 2B2322Q 0338- Lactated C964619 01/16/2015 07/31/2016 0117-02 Ringer's Injection, USP (250mL) 2B2322Q 0338- Lactated C964056 01/12/2015 07/31/2016 0117-02 Ringer's Injection, USP (250mL) 2B2322Q 0338- Lactated C964163 01/13/2015 07/31/2016 0117-02 Ringer's Injection, USP (250mL) Sodium Chloride Injection, USP is indicated as a source of water and electrolytes and for use as a priming solution in hemodialysis procedures. Dextrose Injection, USP is indicated as a source of water and calories. Lactated Ringer's Injection, USP is indicated as a source of water and electrolytes, or as an alkalinizing agent. The lots being recalled were distributed to customers and distributors in the United States and Bermuda between January 14, 2015 and March 5, 2015. Baxter began the customer notification process on March 24, 2015. Customers have been directed not to use products from the recalled lots. Recalled products should be returned to Baxter for credit by contacting Baxter Healthcare Center for Service at 1-888-229-0001, Monday through Friday, between the hours of 7:00 a.m. and 6:00 p.m., Central Time. Unaffected lots of product are available for replacement. Consumers with questions regarding this recall can call Baxter at 1-800-422-9837, Monday through Friday, between the hours of 8:00 a.m. and 5:00 p.m. Central Time, or e-mail Baxter at onebaxter@baxter.com. Consumers should contact their physician or healthcare provider if they have experienced any problems that may be related to using these drug products. Adverse reactions or quality problems experienced with the use of these products may be reported to the FDA's MedWatch Adverse Event Reporting program either online, by regular mail or by fax. Complete and submit the report Online: www.fda.gov/medwatch/report.htm Regular Mail or Fax: Download form www.fda.gov/MedWatch/getforms.htm or call 1-800-332-1088 to request a reporting form, then complete and return to the address on the pre-addressed form, or submit by fax to 1-800-FDA-0178. This recall is being conducted with the knowledge of the U.S. Food and Drug Administration. Baxter International Inc., through its subsidiaries, develops, manufactures and markets products that save and sustain the lives of people with hemophilia, immune disorders, cancer, infectious diseases, kidney disease, trauma and other chronic and acute medical conditions. As a global, diversified healthcare company, Baxter applies a unique combination of expertise in medical devices, pharmaceuticals and biotechnology to create products that advance patient care worldwide BJ'S WHOLESALE: Improperly Charges Sales Tax in Fla., Suit Says --------------------------------------------------------------- BJ's Wholesale Club improperly charges its Florida members sales tax on amounts that are not properly taxable, a class action claims, reports Monica Pais at Courthouse News Service. BJ's has about 31 stores in the state of Florida where they serve thousands of customers or "members," the complaint states. Lead plaintiff Laura Bugliaro says that as a BJ's member she received discounts provided by BJ's and used them for her purchases at its stores. These special discounts under Florida law are known as "dealer's reductions." In such situations, "Florida law requires dealer retailers like BJ's to collect sales tax on only the discounted price . . . as opposed to collecting sales time on the item's full, undiscounted price," the complaint says. But in a lawsuit filed in Miami-Dade County circuit court, Bugliaro claims that BJ's charged Florida customers who use it discounts the sales tax on the full item price. On November 22, 2014, Bugliaro says that she purchased a 55-inch Samsung television at one of BJ's South Florida stores located in Cutler Bay for a discounted sales price of $769.99 without tax. However, she claims that BJ's inappropriately charged and collected from her sales tax on the full retail price of the television which was $1,399.99. She alleges that the same situation occurred on November 30, 2014, when she went to another BJ's Wholesale Club location in Miami and bought a different Samsung television. The original price of the item was $529.99, and she paid the promotional price of $329.99, but BJ's once again charged her sales tax on the full price. Bugliaro claims that since BJ's only has to report the sales tax on the discounted price to the state, the wholesaler is effectively pocketing the excess sales tax collected. Plaintiff claims that BJ's acts were fraudulent and deliberately done to induce her and other similarly situated individuals to pay more money than it was legally due when they purchased an item with a dealer discount. Bugliaro seeks unspecified damages on claims of violation of the Florida Deceptive and Unfair Trade Practices Act, fraudulent and negligent misrepresentation and unjust enrichment. The Plaintiff is represented by: Steve I. Silverman, Esq. KLUGER, KAPLAN, SILVERMAN, KATZEN & LEVINE PL 201 S. Biscayne Blvd., 27th Floor Miami, FL 33131 Telephone: (305) 379-9000 Facsimile: (305) 379-3428 E-mail: ssilverman@klugerkaplan.com BLOOMINGBURG, NY: Appeal in Catskills Annexation Deemed Untimely ---------------------------------------------------------------- Kevin Lessmiller at Courthouse News Service reports that a local coalition challenged the annexation of land for a Catskills housing project too late, a New York appellate judge ruled. Shalom Lamm and Kenneth Nakdimen and their development companies have been pursuing a townhouse project in the Village of Bloomingburg since 2006, and they were able to get a piece of land annexed, which Bloomingburg and the Town of Mamakating both agreed to, according to the ruling. Bloomingburg and Mamakating are rural communities in the foothills of the Catskill Mountains and were two of the Borscht Belt vacation sports frequented by New York City Jews in the 1940's, 50's and 60's, an era later recalled by the movie "Dirty Dancing." Both municipalities are located in Sullivan County. A group of Hasidic Jews filed a class action against the Sullivan County Board of Elections last month, claiming the board is trying to disenfranchise them by not allowing them to vote on housing, school and other projects. The class action alleges that a group called the Rural Community Coalition was formed to oppose the 396-unit townhouse project after it was rumored to have drawn substantial interest among local Hasidic Jews. "Simply stated, this action is not about borders, it is about development approvals given well after the annexation that the municipalities now regret granting, and which allegedly may have been obtained as a result of chicancery or worse conduct," wrote Judge John Lahtinen of the New York Supreme Court Appellate Division. In July, the New York Supreme Court ruled in favor of those opposing the townhouse project, holding that a local law authorizing the annexation was void. But the appellate division reversed on April 2, finding that the challenge to the local law allowing the 2006 annexation was untimely. "We conclude that the challenge to the annexation -- commenced over seven years after it was completed -- is barred by the statute of limitations," Lahtinen wrote for a four-judge panel. "The developer defendants' motion to dismiss plaintiffs' cause of action and the town's cross claims based upon the purportedly defective annexation should have been granted." Mamakating's attorney said in a statement that the town will appeal April 2's decision. "On behalf of the Town of Mamakating, we are very disappointed in the court's decision. In particular, the court did not address the primary issue in the case, which is that the state constitution explicitly states that there shall be no annexation of territory until a special election is held for the voters who reside in that territory," Mamakating Town Attorney Benjamin Gailey said. "The constitutionally mandated election was not held in this case. We intend to appeal the decision to the Court of Appeals." Lahtinen addressed the special election issue in April 2's ruling, saying that it does not represent "an ongoing or continuous wrong." "Here, the failure to conduct a secret ballot of residents on the annexation gave rise to a single, discrete wrong, which could have been challenged in a timely fashion," the judge wrote. Mamakating officials are also disputing the March 18 election of a Hasidic Jew to the Bloomingburg Board of Trustees, citing voter fraud. Aaron Rabiner beat incumbent Katherine Roemer for one open seat and the county elections board certified those results April 1, according to a Jewish Political News & Update report. A town press release says the elections board failed to implement the purge of 250 voters who were clearly not residents in time for the election. "At this point, the Village of Bloomingburg, which falls within the Town of Mamakating, will be taking the next steps necessary through legal action to overturn the invalid election, in order to protect the democratic process and preserve the integrity of governmental institutions," said Mamakating Town Supervisor Bill Herrmann in a statement April 3. The Appellants-Respondents are represented by: John J. Henry, Esq. WHITEMAN OSTERMAN & HANNA, LLP Albany Office One Commerce Plaza Albany, NY 12260 Telephone: (518) 487-7600 Facsimile: (518) 487-7777 E-mail: JHenry@woh.com The Respondents-Appellants are represented by: Kurt E. Johnson, Esq. MONTALBANO, CONDON & FRANK, PC 67 North Main Street, Third Floor New City, NY 10956 Telephone: (845) 521-7108 Facsimile: (845) 634-8993 The Respondents are represented by: J. Benjamin Gailey, Esq. JACOBOWITZ & GUBITS, LLP 158 Orange Avenue Walden, NY 12586 Telephone: (845) 764-4285 Facsimile: (845) 778-5173 E-mail: jbg@Jacobowitz.Com The appellate case is Rural Community Coalition, Inc., et al., Respondents-Appellants v. Village of Bloomingburg, et al., Defendants; Town of Mamakating, et al., Respondents; and Shalom Lamm, et al., Appellants-Respondents, Case No. 519346, in the State of New York Supreme Court, Appellate Division, Third Judicial Department. BOULDER BRANDS: Motion to Dismiss California Action Still Pending ----------------------------------------------------------------- Boulder Brands, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 26, 2015, for the fiscal year ended December 31, 2014, that the Company's motion to dismiss the Second Amended Complaint in the California class action lawsuit is pending. On July 28, 2012, a putative class action lawsuit was filed in the U.S. District Court for the Southern District of California claiming that the labeling and marketing of Smart Balance(R) Butter & Canola Oil Blend products is false, misleading and deceptive (the "California Case"). The plaintiffs filed a Second Amended Complaint and substituted a new plaintiff. The Company moved to dismiss the Second Amended Complaint. That motion is pending. BOULDER BRANDS: All Activity in New York Action Stayed ------------------------------------------------------ Boulder Brands, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 26, 2015, for the fiscal year ended December 31, 2014, that a substantially similar class action lawsuit related to the labeling and marketing of Smart Balance(R) Butter & Canola Oil Blend products was filed on August 9, 2012 in the Southern District of New York. In light of its similarity to the California Case, the Southern District of New York stayed all activity in that case pending a decision in the California Case on class certification. CARLYLE GROUP: Awaits Court Ruling on Class Action Settlement ------------------------------------------------------------- The Carlyle Group L.P. is awaiting the Court's ruling of the settlement in a class action lawsuit, the Company said in its Form 10-K Report filed with the Securities and Exchange Commission on February 26, 2015, for the fiscal year ended December 31, 2014. On February 14, 2008, a private class-action lawsuit challenging "club" bids and other alleged anti-competitive business practices was filed in the U.S. District Court for the District of Massachusetts (Police and Fire Retirement System of the City of Detroit v. Apollo Global Management, LLC, later renamed Kirk Dahl v. Bain Capital Partners LLC). The complaint alleged, among other things, that certain global alternative asset firms, including the Partnership, violated Section 1 of the Sherman Act by forming multi-sponsor consortiums for the purpose of bidding collectively in company buyout transactions in certain going private transactions and agreeing not to submit topping bids once such a consortium had announced a signed deal, which the plaintiffs allege constitutes a "conspiracy in restraint of trade." To avoid the risk and cost associated with continuing the litigation through trial, Carlyle entered into an agreement with plaintiffs on August 29, 2014 to settle all claims against Carlyle without any admission of liability. All of Carlyle's codefendants also reached settlement agreements with plaintiffs. The Court granted preliminary approval of all the defendants' settlements, including Carlyle's, on September 29, 2014. A hearing on final approval of the settlements was held on February 11, 2015 and the Company is awaiting the Court's ruling. Carlyle Partners IV, L.P. ("CP IV") and its affiliates will bear the costs of the settlement not covered by insurance. As a result, Carlyle's performance fees from CP IV were reduced by $19.3 million. CASTLIGHT HEALTH: Faces Class Suit Related to Initial Offering -------------------------------------------------------------- Barbara Leonard at Courthouse News Service reports that in the 13 months since Castlight Health went public, shares in the provider of cloud-based software have declined by more than 50 percent, a class of investors claims in the San Mateo County Superior Court. On its way to the market, according to the April 2 complaint filed in San Mateo County Superior Court, Castlight purported that its Enterprise Healthcare Cloud software could lower the health care spending of enterprises with which it did business by employing "risk reassessments, lower health care premiums, and cash kept through punitive-premium-reimbursement programs." Firerock Global Opportunity Fund LP claims that idea was an attractive one as federal health care reform drove up costs and "provided large companies with incentives to cut costs through benefits spending cuts, aggressive wellness programs, and increased reimbursement limits." When San Francisco-based Castlight went public on March 13, 2014, its "stock skyrocketed 145% on its first day of trading, closing near $40 per share -- and valuing the company at more than $4 billion," Firerock claims. Firerock says Castlight negligently prepared the prospectus that it filed with the Securities and Exchange Commission, however, because it concealed that the company's "backlog was growing because of implementation delays which reflected significant obstacles to scalability." The company had previously estimated that its "total backlog, which we define as including cancellable and non-cancellable portions of our customer agreements for which we have not yet billed, was $108.7 million as of December 31, 2013, compared to $44.0 million as of December 31, 2012," according to the complaint. Though Castlight had touted 109 percent "net dollar retention rate," Firerock says this statement failed to account for the "significant churn" that the company was experience with customers "not renewing at a high rate, let alone at an increasing rate." Castlight's upsells also "were not sufficient to offset the revenues lost from churn, as the company's net dollar retention rate materially declined from the 109% reported as of December 31, 2013." Firerock names as defendants in the complaint Castlight's underwriters: Venrock Partners LP; Goldman, Sachs & Co.; and Morgan Stanley & Co. LLC. These underwriters received $ 14.3 million in fees from the $204.2 million that the $204.2 million that the initial public offering generated in gross proceeds for the company, according to the complaint. "At the time of the filing of this action, Castlight stock is trading in the range of $7 -$8 per share, a decline of over 50% from the IPO price," the complaint states (emphasis in original). The class seeks rescission and damages for violations of the Securities Act. The class is represented by: Shawn A. Williams, Esq. ROBBINS GELLER RUDMAN & DOWD LLP Post Montgomery Center One Montgomery Street, Suite 1800 San Francisco, CA 94104 Telephone: (415) 288-4545 Facsimile: (415) 288-4534 E-mail: shawnw@rgrdlaw.com CHAUFFEURED EXECUTIVE: Sued Over Failure to Pay Overtime Wages -------------------------------------------------------------- Henry Negron, Harrison Osondu Iheke, Andres Morales, and Oleg Borukhov v. Chauffeured Executive Transportation LLC, and Benjamin Osiashvili, and Tom Osiashvili, Case No. 1:15-cv-02216 (E.D.N.Y., April 18, 2015), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standard Act. The Defendants are in the business of providing transportation services to customers in the New York City and Tri-state area. The Plaintiff is represented by: Abdul Karim Hassan, Esq. ABDUL HASSAN LAW GROUP, PLLC 215-28 Hillside Avenue Queens Village, NY 11427 Telephone: (718) 740-1000 Facsimile: (718) 740-2000 E-mail: abdul@abdulhassan.com CHIQUITA BRANDS: Sued Over Damages Caused by Banana Production -------------------------------------------------------------- Tania Campbell, on behalf of herself and all others similarly situated v. Chiquita Brands International, Inc., Case No. 2:15-cv- 02860 (C.D. Cal., April 17, 2015), alleges that the Defendants failed to disclose material information to consumers that its' bananas are produced in a way that destroys natural ecosystems, contaminates the drinking water of local communities, and poisons local residents. Chiquita Brands International, Inc. is New Jersey Corporation that is known to be one of the world's largest producers and marketers of high quality fresh fruits and fresh vegetables. The Plaintiff is represented by: Steve W. Berman, Esq. Tyler S. Weaver, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 1918 Eighth Avenue, Suite 3300 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594 E-mail: steve@hbsslaw.com tyler@hbsslaw.com - and - Elaine T. Byszewski, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 301 North Lake Avenue, Suite 203 Pasadena, CA 91101 Telephone: (213) 330-7150 Facsimile: (213) 330-7152 E-mail: elaine@hbsslaw.com CORELOGIC INC: Final Fairness Hearing Held in RESPA Case Deal ------------------------------------------------------------- CoreLogic, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 26, 2015, for the fiscal year ended December 31, 2014, that the final fairness hearing is set for April 24, 2015, in the Real Estate Settlement Procedures Act Class Action. On February 8, 2008, a purported class action was filed in the United States District Court for the Northern District of California, San Jose Division, against WaMu and eAppraiseIT alleging breach of contract, unjust enrichment, and violations of the Real Estate Settlement Procedures Act ("RESPA"), the California Unfair Competition Law and the California Consumers Legal Remedies Act. The complaint alleged a conspiracy between WaMu and eAppraiseIT to allow WaMu to direct appraisers to artificially inflate appraisals in order to qualify higher value loans that WaMu could then sell in the secondary market. Plaintiffs subsequently voluntarily dismissed WaMu on March 9, 2009. On August 30, 2009, the court dismissed all claims against eAppraiseIT except the RESPA claim. On July 2, 2010, the court denied plaintiff's first motion for class certification. On November 19, 2010, the plaintiffs filed a renewed motion for class certification. On April 25, 2012, the court granted plaintiffs' renewed motion and certified a nationwide class of all persons who, on or after June 1, 2006, received home loans from WaMu in connection with appraisals that were obtained through eAppraiseIT. On July 12, 2012, the Ninth Circuit Court of Appeals declined to review the class certification order. Following discovery, on July 1, 2014 the defendant filed motions for summary judgment and to decertify the class. On September 16, 2014 the trial court granted summary judgment against one named plaintiff but denied it as to the other, denied the motion to decertify the class, and bifurcated trial into two phases with the first phase to begin November 24, 2014. The parties thereafter conducted a court-ordered mediation and subsequently reached agreement, subject to court approval, to settle the case for a total of $9.9 million inclusive of attorney fees. This amount has been reserved and recorded within loss from discontinued operations, net of tax for the year ended December 31, 2014. On December 12, 2014 the court preliminarily approved the settlement. Notice to the class is underway and the final fairness hearing was set for April 24, 2015. CRICKET WIRELESS: Misled Consumers Into Buying Phones, Suit Says ---------------------------------------------------------------- Daniel W. Staples at Courthouse News Service reports that consumers were misled into buying cellphones from Cricket Wireless when the company knew those services would be rendered useless once its pending acquisition by AT&T became final, a class action claims. In a lawsuit filed in Baltimore Federal Court, lead plaintiff Tim Bond claims that when AT&T announced its agreement to acquire Cricket on July 12, 2013, it already knew it was going to discontinue all of the smaller firm's services and require its customers to use AT&T cellular network. Bond says Cricket had to have known this, but nevertheless failed to tell consumers that its handsets had an "artificially limited useful life" and would soon be rendered inoperable. His lawsuit claims the January 2015 phase out announcement prompted angry responses on an AT&T online forum. It quotes one Cricket customer wrote "AT&T is screwing over thousands of Cricket customers and they DON'T CARE ONE BIT!" The complaint goes on to say that many customers who had purchased expensive smartphones less than a year ago are now seeing their phones turned off for good. Along with Cricket customers in Maryland, customers in other major cities including Washington, D.C.; Little Rock, Fayetteville and Fort Smith, Arkansas; Wilmington, DE; Chicago; Atlantic City; Buffalo, NY and Philadelphia will see their service switched this month. The suit does not cite how many customers bought phones after July 2013, but said the names and addresses of all class members can be identified in the business records maintained by AT&T. Bond seeks actual and punitive damages and the free replacement of now defunct Cricket phones on behalf of himself and the class on claims of Breach of Implied Warranty, fraudulent concealment, unjust enrichment, negligent misrepresentation, fraud, and violations of the Maryland Consumer Protection Act. The Plaintiff is represented by: Cory Zajdel, Esq. Z LAW, LLC 301 Main St., Suite 2-D Reisterstown, MD 21136 Telephone: (443) 213-1977 DREAMWORKS ANIMATION: Suit Alleging Wage Suppression Dismissed -------------------------------------------------------------- A federal judge dismissed a consolidated class action that accused DreamWorks, Disney, Pixar and other animation studios of conspiring to suppress wages, reports Arvin Temkar, writing for Courthouse News Service. The lawsuits, brought by former animators and other employees, claimed the companies stifled competition by agreeing not to cold call each others' employees and by setting wage and salary ranges among themselves. The lawsuits are similar to a 2010 class action against Apple, Google and others, including Disney subsidiaries LucasFilm and Pixar, that claimed their CEOs made "gentleman's agreements" to eliminate competition by not poaching each others' employees. U.S. District Judge Lucy Koh, who is also overseeing the cartoon studio cases, preliminarily approved a $415 million settlement for the 2010 class in March. The defendants in the latest consolidated class action were DreamWorks Animation, the Walt Disney Company, Lucasfilm, Pixar, ImageMovers, Two Pic fka ImageMovers Digital, Sony Pictures Animation, Sony Pictures Imageworks and Blue Sky Studios. In a joint motion to dismiss, they argued among other things that the plaintiffs' claims have expired due to statute of limitations. Koh granted the motion, concluding that "the four-year statute of limitations ran on plaintiff's claims as early as 2008, and at best in 2011." She also found that the plaintiffs failed to "allege an essential element of fraudulent concealment." She gave the plaintiffs 30 days to file a second amended complaint. The consolidated case is captioned In re Animation Workers Antitrust Litigation, Master Docket No. 14-CV-04062-LHK, in the U.S. District Court for the Northern District of California, San Jose Division. ENTERGY CORP: Parties in Texas Power Price Lawsuit Await Ruling --------------------------------------------------------------- Entergy Corporation said in its Form 10-K Report filed with the Securities and Exchange Commission on February 26, 2015, for the fiscal year ended December 31, 2014, that parties in the Texas Power Price Lawsuit are awaiting the court ruling on the Plaintiffs' motion for rehearing and a motion for rehearing en banc. In August 2003, a lawsuit was filed in the district court of Chambers County, Texas by Texas residents on behalf of a purported class of the Texas retail customers of Entergy Gulf States, Inc. who were billed and paid for electric power from January 1, 1994 to the present. The named defendants include Entergy Corporation, Entergy Services, Entergy Power, Entergy Power Marketing Corp., and Entergy Arkansas. Entergy Gulf States, Inc. was not a named defendant, but was alleged to be a co-conspirator. The court granted the request of Entergy Gulf States, Inc. to intervene in the lawsuit to protect its interests. Plaintiffs allege that the defendants implemented a "price gouging accounting scheme" to sell to plaintiffs and similarly situated utility customers higher priced power generated by the defendants while rejecting less expensive power offered from off-system suppliers. In particular, plaintiffs allege that the defendants manipulated and continue to manipulate the dispatch of generation so that power is purchased from affiliated expensive resources instead of buying cheaper off-system power. Plaintiffs stated in their pleadings that customers in Texas were charged at least $57 million above prevailing market prices for power. Plaintiffs seek actual, consequential and exemplary damages, costs and attorneys' fees, and disgorgement of profits. The plaintiffs' experts have tendered a report calculating damages in a large range, from $153 million to $972 million in present value, under various scenarios as of the date of the report. The Entergy defendants have tendered expert reports challenging the assumptions, methodologies, and conclusions of the plaintiffs' expert reports. In March 2012 the state district court found that the case met the requirements to be maintained as a class action under Texas law. In April 2012 the court entered an order certifying the class. The defendants appealed the order to the Texas Court of Appeals - First District and oral argument was held in May 2013. In November 2014 the Texas Court of Appeals - First District reversed the state district court's class certification order and dismissed the case holding that the state district court lacked subject matter jurisdiction to address the issues. Plaintiffs filed a motion for rehearing and a motion for rehearing en banc. The Entergy defendants filed responsive briefings, and the parties are awaiting rulings by the Court. EXPRESS SCRIPTS: Faces "Infante" Suit Over Failure to Pay OT ------------------------------------------------------------ Jessilyn Infante, individually and on behalf of all similarly situated individuals v. Express Scripts, Inc. and Express Scripts Pharmacy, Inc., Case No. 0:15-cv-02049-JNE-SER (D. Minn., April 17, 2015), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standard Act. Express Scripts, Inc.is a Delaware corporation that is one of the nation's leading pharmacy benefit managers, managing prescription benefits for tens of millions of Americans on behalf of thousands of clients, including health plans and plan sponsors. Express Scripts Pharmacy, Inc. owns and operates a pharmacy with its principal address at 6625 West 78th Street, Bloomington, Minnesota 55439. The Plaintiff is represented by: Timothy J. Becker, Esq. Jacob R. Rusch, Esq. JOHNSON BECKER, PLLC 33 South Sixth Street, Suite 4530 Minneapolis, MN 55402 Telephone: (612) 436-1800 Facsimile: (612) 436-1801 E-mail: tbecker@johnsonbecker.com jrusch@johnsonbecker.com - and - Jason J. Thompson, Esq. Jesse L. Young, Esq. SOMMERS SCHWARTZ, P.C. One Towne Square, Suite 1700 Southfield, MI 48076 Telephone: (248) 355-0300 E-mail: jyoung@sommerspc.com jthompson@sommerspc.com FACEBOOK INC: Faces Suit for Illegally Acquiring Biometric Data --------------------------------------------------------------- Lisa Klein, writing for Courthouse News Service, reports that Facebook violated its users' privacy to acquire the largest privately held stash of biometric face-recognition data in the world, a class action claims in Illinois Chancery Court. Lead plaintiff Carlo Licata claims Facebook began violating the Illinois Biometric Information Privacy act of 2008 in 2010, in a "purported attempt to make the process of tagging friends easier." Through its "tag suggestions" program, Facebook scans all pictures uploaded by users and identifies any Facebook friends they may want to tag, according to the April 1 lawsuit in Cook County Court. Facebook got its facial recognition technology from the Israeli company Face.com, which Facebook later bought. Face.com is not a party to the lawsuit. Though it may seem at times that a major purpose of Facebook is to allow people to share too much information about themselves, Licata says this form of data mining violates users' privacy. He calls it a "brazen disregard for its users' privacy rights," through which Facebook has "secretly amassed the world's largest privately held database of consumer biometrics data." Sen. Al Franken, among others, has criticized Facebook for this, according to the complaint. The company identifies Facebook friends in photos by scanning their faces, extracting facial feature data and comparing it against their "faceprint database," or what it calls templates. But Licata claims Facebook "actively conceals" this from its users and "doesn't disclose its wholesale biometrics data collection practices in its privacy policies, nor does it even ask users to acknowledge them." That's illegal in Illinois, Licata says. The Illinois Biometrics Information Privacy Act made it unlawful to collect biometric data without written notice to the subject stating the purpose and length of the data collection, and without obtaining the subject's written release. The Federal Trade commission suggested that for private companies to use biometric data that they should provide clear notice of how the technology works, what they are collecting and why, and get consent. But this, Licata says, "is precisely what Facebook did not do when it rolled out its facial recognition program." Facebook "automatically enrolled its users into its facial recognition program to collect their biometric identifiers -- a practice that continues to this day," according to the complaint. Licata claims that Facebook was "calculatedly elusive" in explaining the program. At a 2012 Senate hearing on biometric technology, Facebook privacy and public policy manager Robert Sherman testified that the "tag suggestions" program is merely a "convenience feature" and that users' data is secure. The company's faceprint database works only with its own software, and "alone, the templates are useless bits of data," Sherman said. He said that users can opt out of the feature and their data will be deleted. Licata claims that due to lack of informed consent, users can opt out only after they have been unwittingly opted in. At the hearing, the panel discussed the fact that "Americans cannot take precautions to prevent the collection of their image," and that data can be used to identify and track people anywhere they go. "Your face is a conduit to an incredible amount of information about you," Sen. Franken said, adding that unlike a password, a face cannot be replaced or changed. "Unless you turn it off, it's already been used on you," Franken said of the Facebook program. Licata claims in the lawsuit that in 2011 the FTC worried about a "third party maliciously breaching a database of biometric information," and that because a person's face cannot be changed, "once exposed, a victim has no recourse to prevent becoming victim to misconduct like identity theft and unauthorized tracking." Licata seeks class certification and an injunction requiring Facebook to comply with the Illinois law, to "put a stop to its surreptitious collection, use and storage" of users' biometric data. The Plaintiff is represented by: Jay Edelson, Esq. EDELSON PC 350 North LaSalle Street, Suite 1300 Chicago, IL 60654 Telephone: (312) 589-6370 Facsimile: (312) 589-6378 E-mail: jedelson@edelson.com FIRST FINANCIAL: Sued Over Unlawful Telemarketing Practices ----------------------------------------------------------- John Mogannam, individually and on behalf of all others similarly situated v. First Financial Merchant Services, Case No. 2:15-cv- 00827 (E.D. Cal., April 17, 2015), seeks to put an end on the Defendant's practice of contacting the class members' cellular telephone in an attempt to solicit Plaintiff in using Defendant's services using an automatic telephone dialing system. First Financial Merchant Services owns and operates credit and debit card processing company. The Plaintiff is represented by: Todd M. Friedman, Esq. Suren N. Weerasuriya, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 324 S. Beverly Dr., #725 Beverly Hills, CA 90212 Telephone: (877) 206-4741 Facsimile: (866) 633-0228 E-mail: tfriedman@attorneysforconsumers.com sweerasuriya@attorneysforconsumers.com abacon@attorneysforconsumers.com FMS INVESTMENT: Sued Over Unlawful Telemarketing Practices ---------------------------------------------------------- Marlon Montoya, individually and on behalf of all others similarly situated v. FMS Investment Corp., Case No. 3:15-cv-01758 (N.D. Cal., April 17, 2015), seeks to put an end on the Defendant's practice of making calls on the class members' cellular telephone for non-emergency purpose using an automatic dialing system. FMS Investment Corp. is a Maryland corporation that provides receivables management solutions to financial service institutions in the government and private sector. The Plaintiff is represented by: Abbas Kazerounian, Esq. KAZEROUNI LAW GROUP, APC 245 Fischer Avenue, Unit D1 Costa Mesa, CA 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 E-mail: ak@kazlg.com - and - Joshua B. Swigart, Esq. HYDE & SWIGART 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108-3551 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 E-mail: josh@westcoastlitigation.com FORCEFIELD ENERGY: Sued in N.Y. Over misleading Financial Reports ----------------------------------------------------------------- Lori Atkinson, individually and on behalf of all others similarly situated v. ForceField Energy Inc., David Natan, Jason Williams, Richard St-Julien, The Dream Team Group, and Mission Investor Relations d/b/a Missionir, Case No. 1:15-cv-03020 (S.D.N.Y., April 17, 2015), alleges that the Defendants made materially false and misleading statements regarding the Company's business and operational and compliance policies. ForceField Energy Inc. is a Nevada corporation, which is a designer, distributor and licensee of alternative energy products and solutions. The Dream Team Group and Mission Investor Relations are securities advertisers and investor relations firms. The Plaintiff is represented by: Phillip Kim, Esq. Laurence M. Rosen, Esq. Kevin Chan, Esq. THE ROSEN LAW FIRM, P.A. 275 Madison Ave., 34th Floor New York, NY 10016 Telephone: (212) 686-1060 Facsimile: (212) 202-3827 E-mail: pkim@rosenlegal.com lrosen@rosenlegal.com kchan@rosenlegal.com FREDERICKSBURG CARE: Malpractice Arbitration Raises Concerns ------------------------------------------------------------ John Council, writing for Texas Lawyer, reports that the thought of moving medical malpractice litigation away from Texas state district courts and into arbitration disturbs some plaintiff and defense lawyers alike. Plaintiff lawyers fear the unseemly prospect of health care providers requiring patients to give up the right to a trial by jury before receiving treatment. And defense attorneys worry doctors could give up far too much in the way of their appellate rights if an arbitrator misapplies the state tort reform laws designed to protect their clients. Those are just some of the reasons why organizations representing both sides of the bar are now calling on the Texas Supreme Court to reconsider a recent decision they believe could open up those possibilities. The case that concerns the Texas Trial Lawyers Association, the Texas Association of Defense Counsel and the Texas Chapter of the American Board of Trial Advocates is Fredericksburg Care Company v. Perez. In that March 6 decision, the high court reversed two lower rulings denying a nursing home defendant's motion to compel arbitration in a wrongful death case -- even though an arbitration agreement between the defense and the plaintiffs did not comply with a notice provision found in Sec. 74.451 of the Texas Civil Practices & Remedies Code. That notice provision is part of the Texas Medical Liability Act, the 2003 omnibus tort reform law passed by the Texas Legislature. Specifically, Sec. 74.451 states that for an agreement to arbitrate a heath care liability claim to be valid, it must contain a warning in bold, 10-point type that it must be signed by an attorney of the patient's choosing. The high court ruled unanimously in Fredericksburg Care that the Federal Arbitration Act (FAA), which has no such notice provision, preempts Sec. 74.451. To arrive at his decision, Justice Paul Green rejected the plaintiffs' contention that the federal McCarran-Ferguson Act (MFA) applies in Fredericksburg Care. The MFA provides an exemption to federal preemption if a state statute was enacted for the "purpose of regulating the business of insurance." "Section 74.451 of the Texas Civil Practices & Remedies Code was not a law enacted by the Texas Legislature for the purpose of regulating the business of insurance," Justice Green wrote. "It simply applies to agreements to arbitrate health care liability claims between patients and health care providers. Accordingly, the MFA does not exempt Sec. 74.451 from preemption by the FAA, and the trial court should have granted Fredericksburg's motion to compel arbitration." The plaintiffs filed a motion for rehearing in Fredericksburg Care on March 24. It urges the court to follow a Colorado Supreme Court decision that reached the opposite conclusion about the MFA's application to Colorado's health maintenance organizations. The Texas Supreme Court has yet to rule on the motion for rehearing. The rehearing motion has drawn the amici support of both the Texas Association of Defense Counsel and TEX-ABOTA (Texas Chapters of the American Board of Trial Advocates), an organization comprised of both plaintiff and defense lawyers dedicated to the preservation of the right to a jury trial. TEX-ABOTA's March 27 amici brief argues that few patients can appreciate the effect of signing a pre-dispute arbitration clause when seeking health care and Fredericksburg Care "effectively sanctioned the unknowing waiver of Texas consumer's constitutional right to a jury trial." While Fredericksburg Care concerns a nursing home, Joe Hood -- hood@windlehood.com -- a partner in El Paso's Windle Hood Norton Brittain & Jay who wrote TEX-ABOTA's brief, fears the decision will encourage other health care providers -- such as doctors and hospitals -- to place arbitration agreements in their patient contracts to keep potential medical malpractice cases out of state court. "It will encourage a lot of providers to go in that direction. They perceive, incorrectly, that they are better off going to arbitration," said Mr. Hood, an appellate lawyer who defends medical malpractice cases. "But the reality is, when you go to arbitration you're going to have to live by it." David Chamberlain, the president of TEX-ABOTA and former president of the Texas Association of Defense Counsel, agrees with Mr. Hood. He filed his own brief before the high court urging it to withdraw the Fredericksburg Care decision. The Texas Legislature passed the 2003 tort reform measure as a way to reduce skyrocketing medical malpractice premiums, said Chamberlain, something he heard over and over as he monitored that legislation while serving as president of the defense counsel bar group. "To say Chapter 74 had nothing to do with the regulation of insurance is just flat wrong. It's like almost no one on the court was around at that time," said Mr. Chamberlain, a medical malpractice defense attorney and partner in Austin's Chamberlain McHaney. While doctors and hospitals may be tempted to sign arbitration agreements to keep litigation with patients out of a courtroom, that's not always a good idea, Mr. Chamberlain said. "A defense attorney will tell you there are a lot of protections in Chapter 74 that can be applied in arbitration and sometimes they're not," he said. "And then the physician has no right to appeal." Peter Kelly wrote an amicus brief on behalf of the Texas Trial Lawyers Association before the high court decided Fredericksburg Care advocating that the court reject the motion to compel arbitration. Now he represents the plaintiffs in Fredericksburg Care, and filed the motion for rehearing. Mr. Kelly said he is encouraged by the amici support the motion for rehearing has received. "On one hand the defense lawyers want to have the procedural protections for their doctor clients. And plaintiff lawyers want the procedural protections for their clients," said Mr. Kelly, a partner in Kelly, Durham & Pittard. "And all of these organizations . . . are deeply committed to the principle of a trial by jury." Shawn Golden, a partner in San Antonio's Golden & Barrera who represents Fredericksburg Care, said the amici are missing the point of the high court's decision. "I get where they're coming from, but this isn't a public policy case. It's a statutory interpretation case," Mr. Golden said. "Whether or not arbitration should be favored as a matter of public policy is not an issue that's before the court. Whether or not arbitration is a good or bad thing is not the issue before the court." He added, "And you know, it really is an issue of federal importance. If these people have a problem with arbitration, maybe they need to talk to Congress about the Federal Arbitration Act." G4S SECURE: Face "Lubin" Suit Over Failure to Pay Overtime Wages ---------------------------------------------------------------- Ronald Lubin, individually and on behalf of all others similarly situated v. G4S Secure Solutions (USA) Inc., Case No. 1:15-cv- 03027-WHP (S.D.N.Y., April 17, 2015), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standard Act. G4S Secure Solutions (USA) Inc. owns and operates a security company with a principle place of business located at 1395 University Blvd., Jupiter, Florida 33458. The Plaintiff is represented by: Alison Gayle Lobban, Esq. Brent Edward Pelton, Esq. Taylor Bell Graham, Esq. PELTON & ASSOCIATES, P.C. 111 Broadway, Suite 1503 New York, NY 10000 Telephone: (212) 385-9700 Facsimile: (212) 385-0800 E-mail: lobban@peltonlaw.com pelton@peltonlaw.com graham@peltonlaw.com GOGO LLC: Consumers Can Pursue Suit Over Automatic Renewals ----------------------------------------------------------- Mark Hamblett, writing for New York Law Journal, reports that consumers who bought Wi-Fi connections on domestic air flights from the company "Gogo" can pursue their claim that they were tricked into automatic monthly renewals billed to their credit cards, a federal judge has ruled. Eastern District Judge Jack Weinstein also said that plaintiffs seeking to prosecute a class action are not bound by mandatory arbitration and waiver of venue provisions merely because they signed up on the Gogo website to use the service. "Sometimes forgotten in the Internet Age, where contracts of adhesion are often the rule for online consumers, is the essential element of contract formation: mutual manifestation of assent," Judge Weinstein said in Berkson v. Gogo LLC, 14-CV-1199 Plaintiffs Adam Berkson and Kerry Welsh said the graphics and text in Gogo's website misled them into believing they were only signing up for one month when they bought the service. They were allegedly notified of the duration of their signup, and the provisions on venue and arbitration, when the "terms of use" came up while they were signing onto or logging into the website. Judge Weinstein agreed with the plaintiffs that they were not given effective notice that would have prompted a reasonable person to inquire further. The judge's ruling set the stage for a hearing on class certification on July 9. Judge Weinstein said the case raised important policy questions, including "how should courts deal with hybrid versions of 'browser wrap' and 'clickwrap' electronic contracts of adhesion" which he referred to as "sign-in wraps" that "do not provide Internet users with a compelling reason to examine terms favoring defendants?" The judge made his ruling after inferring the plaintiffs "average capacity and understanding as Internet users when they order Gogo's services," after relying on sociological research on average Internet users, "limited empirical studies conducted by legal scholars and economists and somewhat arbitrary assumptions by the court itself about the average Internet user." Included in his reference points were color-coded representations of the "eye-tracking tendencies" of the average user perusing a website page, the differences in reading comprehension between the printed page and computer screen and how the average user interacts with privacy policies, web-based advertisements and hyperlinks. Judge Weinstein also quoted comedian John Oliver on his HBO show "Last Week With John Oliver" as saying "If Apple put the entire text of Mein Kampf in their user agreement, you'd still click agree." The average Internet user, Judge Weinstein concluded, "would not have been informed, in the circumstances presented in this case, that he was binding himself to a sign-in-wrap." Gogo dominates the airline Wi-Fi market in the United States by providing exclusive service on 80 percent of flights. It charges about $40 per month and about $10 per day for the service. When Berkson and Kerry filed their lawsuit in 2014 alleging violations of various consumer protection statutes and breach of the implied covenant of good faith and fair dealing, Gogo moved to dismiss for failure to state a claim or, in the alternative, change of venue to the Northern District of Illinois. Judge Weinstein went through the four kinds of electronic adhesion contracts: browser wrap, where assent is given by merely using the site; clickwrap, where the user must click "I agree"; scrollwrap, where the user has to scroll down and click a separate "I agree" button; and sign-in-wrap, which "couples assent to the terms of a website with signing up for use of the site's services." and is the one used by Gogo. The judge called sign-in-wrap a "questionable form of Internet contracting" and noted that it is better to have "hard-edged rules of adhesion," because they reduce litigation costs. "But, until useful consumer studies demonstrate that average consumers using the computer understand what contract terms are being accepted when a purchase is made, preemptive rules in favor of vendors who do not forcefully draw purchasers' attention to terms disadvantageous to them should be rejected," Weinstein said. In this case, he said, "Neither Berkson nor Welsh can, at this stage of the litigation, be considered to have knowingly bound themselves to the purported terms of an agreement adverse to them." Berkson and Welsh are represented by George Granade and Michael Reese of Reese LLP. Gogo is represented by Anthony Laura -- alaura@ebglaw.com -- a member of Epstein Becker & Green. GOOGLE INC: Settles for $8.5MM With Class in Privacy Litigation --------------------------------------------------------------- Google will pay $8.5 million, most of it to nonprofit organizations, to settle a class action that claimed that it illegally divulged users' search information to third parties, reports Elizabeth Warmerdam at Courthouse News Service, citing a federal court ruling. U.S. District Judge Edward Davila granted final approval to the settlement on March 31, finding that distributing the money to nonprofits instead of class members was appropriate. Davila also found that the settlement was reasonable even though Google will not have to stop disclosing search queries. The consolidated class action accused Google of routinely passing on private information through "referrer headers," which provided the website the user was visiting with the URL of the referring page. The URL included the search terms typed in by the user. Personal information passed on through these referrer headers could include users' names, IP addresses, their confidential medical information, their race, or information about their religious beliefs and sexual orientation, according to the complaint. Such transmissions to third parties could involve millions of search queries a day. It was anticipated that the class would be consist of about 129 million people. Under the settlement, Google will pay $8.5 million for distributions to cy pres recipients, attorney fees and costs, incentive awards to the named plaintiffs, and administration costs. The nonprofit cy pres recipients are Carnegie Mellon University, the World Privacy Forum, Chicago-Kent College of Law Center for Information, Society and Policy, the Stanford Center for Internet Society, the Berkman Center for Internet and Society at Harvard University, and the AARP Foundation. Objectors to the settlement argued that the class should be decertified because class members will not receive any form of direct monetary compensation. The objectors claimed that if it is too costly to distribute settlement funds to class members, then a class action is not the best method of resolution. However, "the alternatives to a class action are not preferable since they involve either thousands of individual cases or a complete abandonment of millions of claims," Davila ruled. "Moreover, a class-wide resolution is not rendered inferior simply because the settlement agreement calls for an indirect rather than a direct benefit to the class." Davila found that a cy pres remedy is the "next best" result in this case. "First, the settlement fund, while sizeable, is 'non- distributable.' Since the amount of potential class members exceeds one hundred million individuals, requiring proofs of claim from this many people would undeniably impose a significant burden to distribute, review and then verify. Similarly, the cost of sending out very small payments to millions of class members would exceed the total monetary benefit obtained by the class," Davila wrote. The cy pres distribution also accounts for the nature of the lawsuits, meets the objectives of the class action and furthers the interests of class members, the judge said. The organizations receiving the money have a record of promoting privacy protection on the Internet and are capable of using the money to educate the class about online privacy risks. Google also will have to post disclosures on its website concerning user search queries, including information about whether users' search queries are transmitted to third parties. The disclosures must appear on Google's FAQs page, Key Terms page, and Privacy FAQ for Google Web History page. But Google will not be required to make changes to its homepage, google.com, or to practices of functionality of Google Search, Google AdWords, Google Analytics or Google Web History. Davila noted that this relief is not the best result, since the class sought to stop Google from disclosing search queries altogether. "At the same time, a class action settlement does not need to embody the best possible result to be approved. The court's role is not to advocate for any particular relief, but instead to determine whether the settlement terms fall within a reasonable range of possible settlements," Davila wrote. He found the compromise reasonable because the plaintiffs might not have obtained the result they wanted if the case were to proceed, and Google did agree to provide the privacy disclosures, Davila said. He awarded class counsel to $2.125 million in fees, 25 percent of the settlement fund. Counsel took the case on a contingent basis and spent considerable time and money with no guarantee of payment. The settlement was not reached easily and counsel had to defend the claims against three motions to dismiss. Furthermore, the requested award is not disproportionate to the class benefit and is comparable to awards approved in similar Internet privacy class actions, Davila said. The consolidated case is captioned In re Google Referrer Header Privacy Litigation, Case No. 5:10-cv-04809-EJD, in the U.S. District Court for the Northern District of California, San Jose Division. GOOGLE INC: Court Refuses to Certify Class in Parents' App Suit --------------------------------------------------------------- Google's multimillion-dollar settlement with the Federal Trade Commission over kids' inadvertent in-app purchases without parental permission dooms class certification in a companion lawsuit, reports William Dotinga at Courthouse News Service, citing a federal court ruling. Late last year, Google agreed to cough up no less than $19 million in refunds to customers whose children made in-app purchases without permission. The FTC had found that Google had been billing customers for inadvertent purchases made without passwords or any other form of authorization since 2011. Even after implementing a password requirement, the FTC said that Google never told parents that entering a password would open a 30-minute window during which children could make unlimited purchases -- often without parents' permission. Google has begun notifying its customers of the settlement, which requires the company to give refunds for all unauthorized in-app purchases made by children and to modify its billing practices to get express consent from customers before charging them for future purchases. But before the FTC intervened, New York resident Ilana Imber-Gluck slapped Google with a putative class action after discovering that one of her sons spent $70 to buy in-app currency for the 99-cent game "Run Jump Smash." Other parents have since joined the federal case, which was filed this past March in San Jose. Earlier this year, Google argued that Imber-Gluck's class couldn't be certified because the FTC settlement "affords plaintiffs all of the relief to which they would have been entitled if they succeeded in the litigation." But while Imber-Gluck countered that the FTC settlement didn't give them punitive damages they would have been entitled to in a jury trial on California consumer-law claims, U.S. District Judge Ronald Whyte found on April 3 that the agreement gave the class "nearly all, if not all, of the possible relief sought in the complaint." Whyte also dismissed claims that Google's notification and refund process was inadequate, cumbersome and therefore flawed. "These complaints appear unfounded given that Google has already refunded over $30 million to class members, and the settlement period continues through December 2015," Whyte wrote. "Furthermore, it is unlikely that a class notice and claims process achieved through this litigation would be much different than that under the FTC settlement. Notice would likely involve email notice and an online claim form, just as in the FTC settlement. Plaintiffs' suggestion that their notice would include a better email subject line than the FTC email is not sufficient to the superiority requirement." The case is Ilana Imber-Gluck, et al. v. Google Inc., Case No. 5:14-cv-01070-RMW, in the U.S. District Court for the Northern District of California. GOVERNMENT SUPPORT: "Cardine" Suit Seeks to Recover Unpaid OT ------------------------------------------------------------- Phillip Caradine, on behalf of himself and those similarly situated v. Government Support Services, Inc., Case No. 1:15-cv- 00129-LG-RHW (S.D. Miss., April 17, 2015), seeks to recover unpaid overtime wages and damages pursuant to the Fair Labor Standard Act. Government Support Services, Inc. is a Kentucky-based company that provides a wide-range of logistics management support services to both government and commercial clients for multiple job locations throughout the United States. The Plaintiff is represented by: Virginia Carothers LoCoco, Esq. LOCOCO AND LOCOCO, PA P.O. Box 6014 D'Iberville, MS 39532 Telephone: (228) 392-3799 E-mail: virginia.lococo@lococolaw.com HAWAIIAN ELECTRIC: Faces 8 Class Actions on Merger Agreement ------------------------------------------------------------ Hawaiian Electric Industries, Inc., and Hawaiian Electric Company, Inc., said in their Form 10-K Report filed with the Securities and Exchange Commission on February 26, 2015, for the fiscal year ended December 31, 2014, that since the December 3, 2014 announcement of the merger agreement, eight purported class action complaints were filed in the Circuit Court of the First Circuit for the State of Hawaii by alleged stockholders of HEI against HEI, Hawaiian Electric (in one complaint), the individual directors of HEI, NEE and NEE's acquisition subsidiaries. The lawsuits are captioned as follows: Miller v. Hawaiian Electric Industries, Inc., et al., Case No. 14-1-2531-12 KTN (December 15, 2014) (the Miller Action); Walsh v. Hawaiian Electric Industries, Inc., et al., Case No. 14-1-2541-12 JHC (December 15, 2014) (the Walsh Action); Stein v. Hawaiian Electric Industries, Inc., et al., Case No. 14-1-2555-12 KTN (December 17, 2014) (the Stein Action); Brown v. Hawaiian Electric Industries, Inc., et al., Case No. 14-1-2643-12 RAN (December 30, 2014) (the Brown Action); Cohn v. Hawaiian Electric Industries, Inc., et al., Case No. 14-1-2642- 12 KTN (December 30, 2014) (the Cohn State Action); Guenther v. Watanabe, et al., Case No. 15-1-003-01 ECN (January 2, 2015) (the Guenther Action); Hudson v. Hawaiian Electric Industries, Inc., et al., Case No. 15-1-0013-01 JHC (January 5, 2015) (the Hudson Action); Grieco v. Hawaiian Electric Industries, Inc., et al., Case No. 15-1-0094-01 KKS (January 21, 2015) (the Grieco Action). On January 12, 2015, plaintiffs in the Miller Action, the Walsh Action, the Stein Action, the Brown Action, the Guenther Action, and the Hudson Action filed a motion to consolidate their actions and to appoint co-lead counsel. On February 13, 2015, the Court held a hearing on this motion. On January 23, 2015, the Cohn State Action was voluntarily dismissed. Thereafter, the same alleged stockholder plaintiff filed a purported class action complaint in the United States District Court for the District of Hawaii against HEI, the individual directors of HEI, NEE and NEE's acquisition subsidiaries. The lawsuit is captioned as Cohn v. Hawaiian Electric Industries, Inc. et al., 15-cv-00029-JMS-KSC (January 27, 2015) (the Cohn Federal Action). All eight actions allege, among other things, that members of HEI's Board breached their fiduciary duties in connection with the proposed transaction, and that the Merger Agreement involves an unfair price, was the product of an inadequate sales process, and contains unreasonable deal protection devices that purportedly preclude competing offers. The complaints further allege that HEI, NEE and/or its acquisition subsidiaries aided and abetted the purported breaches of fiduciary duty. The plaintiffs in these lawsuits seek, among other things, (i) a declaration that the Merger Agreement was entered into in breach of HEI's directors' fiduciary duties, (ii) an injunction enjoining the HEI Board from consummating the Merger, (iii) an order directing the HEI Board to exercise their duties to obtain a transaction which is in the best interests of HEI's stockholders, (iv) a rescission of the Merger to the extent that it is consummated, and/or (v) damages suffered as a result of the defendants' alleged actions. In addition, the Cohn Federal Action alleges that the HEI board of directors violated its fiduciary duties and federal securities laws by omitting material facts from the Registration Statement on Form S-4. HEI and Hawaiian Electric believe the allegations of the complaints are without merit and intends to defend these lawsuits vigorously. HMSHOST CORPORATION: Faces "Reznik" Suit Over Failure to Pay OT --------------------------------------------------------------- Jon Reznik, Dian Lathan, Timothy Johnson, and Randall Johnson v. HMSHost Corporation and Host International, Inc., Case No. 4:15-cv-00648 (E.D. Mo., April 17, 2015), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standard Act. The Defendants are in the business of managing and oversees the operations of food and beverage concessions at numerous United States airports and other travel facilities. The Plaintiff is represented by: Ryan A. Keane, Esq. THE SIMON LAW FIRM, P.C. 800 Market Street, Suite 1700 St. Louis, MO 63101 Telephone: (314) 241-2929 Facsimile: (314) 241-2029 E-mail: rkeane@simonlawpc.com INTERNAL REVENUE: Asked to Reveal Who Applied for Tax-Exempt ------------------------------------------------------------ Accused of unfairly scrutinizing Tea Partiers, the Internal Revenue Service must reveal what groups applied for tax-exempt status and when, reports David Wells at Courthouse News Service, citing a federal court ruling. U.S. District Judge Susan Dlott's order April 1 comes in an ongoing class action against the IRS led by California-based NorCal Tea Party Patriots, which says the agency singled out groups like them based upon their names and political positions after they applied for tax-exempt status. For the IRS, political-sounding names that seemed to identify with the Tea Party "such as 'We the People' or 'Take Back the Country'" raised major red flags, according to the complaint. After considering the latest version of the complaint last year, the court has advanced claims that the IRS violated the First and Fifth Amendments to the U.S. Constitution and Section 6103 of Title 26, a statute that protects the confidentiality of tax- return information. With the IRS having presented a list of 298 applicants for tax- exempt status to the Treasury Inspector General for Tax Administration, the Tea Partiers seek to certify a class of "all dissenting groups targeted for additional scrutiny by the IRS from January 20, 2009, through July 15, 2013." The IRS has balked during discovery, however, claiming that the documents that the plaintiffs need to identify potential class members are exempt from discovery because the records appear on tax forms containing the very material that Section 6103 protects. Disagreeing that they are seeking the application files themselves, the plaintiffs said they only want the spreadsheets that the IRS created to track applicants. Judge Dlott agreed April 1 that such information is important to the proceedings and not exempt. "The Court concludes that the return information sought is directly related to the issue of class certification in this federal court proceeding," the ruling states. "Plaintiffs seek the return information of the putative class members to prove to the court that Federal Rule of Civil Procedure 23(a) and 23(b) requirements such as typicality, commonality, and whether the IRS acted on a grounds that applied generally to the putative class are satisfied." The Plaintiffs are represented by: David Langdon, Esq. LANGDON LAW LLC 8913 Cincinnati Dayton Rd. West Chester, OH 45069 Telephone: (513) 733-1038 Facsimile: (513) 577-7383 The case is NorCal Tea Party Patriots, et al. v. The Internal Revenue Service, et al., Case No. 1:13-cv-00341-SJD, in the U.S. District Court for the Southern District of Ohio, Western Division. INTERNATIONAL PAPER: Tennessee Class Action in Preliminary Stage ---------------------------------------------------------------- International Paper Company said in its Form 10-K Report filed with the Securities and Exchange Commission on February 26, 2015, for the fiscal year ended December 31, 2014, that the Tennessee class action is in a preliminary stage. In September 2010, eight containerboard producers, including International Paper and Temple-Inland, were named as defendants in a purported class action complaint that alleged a civil violation of Section 1 of the Sherman Act. The suit is captioned Kleen Products LLC v. International Paper Co. (N.D. Ill.). The complaint alleges that the defendants, beginning in February 2004 through November 2010, conspired to limit the supply and thereby increase prices of containerboard products. The alleged class is all persons who purchased containerboard products directly from any defendant for use or delivery in the United States during the period February 2004 to November 2010. The complaint seeks to recover an unspecified amount of treble actual damages and attorneys' fees on behalf of the purported class. Four similar complaints were filed and have been consolidated in the Northern District of Illinois. Moreover, in January 2011, International Paper was named as a defendant in a lawsuit filed in state court in Cocke County, Tennessee alleging that International Paper violated Tennessee law by conspiring to limit the supply and fix the prices of containerboard from mid-2005 to the present. Plaintiffs in the state court action seek certification of a class of Tennessee indirect purchasers of containerboard products, damages and costs, including attorneys' fees. The Company disputes the allegations made and is vigorously defending each action. "However, because the federal action is in the discovery stage and the Tennessee action is in a preliminary stage, we are unable to predict an outcome or estimate a range of reasonably possible loss," the Company said. INTERNATIONAL PAPER: Executed Settlement in Gypsum Class Action --------------------------------------------------------------- International Paper Company said in its Form 10-K Report filed with the Securities and Exchange Commission on February 26, 2015, for the fiscal year ended December 31, 2014, that the Company executed a definitive settlement agreement in the Gypsum class action, which is subject to court approval. Beginning in late December 2012, certain purchasers of gypsum board filed a number of purported class action complaints alleging civil violations of Section 1 of the Sherman Act against Temple- Inland and a number of other gypsum manufacturers. The complaints were similar and alleged that the gypsum manufacturers conspired or otherwise reached agreements to: (1) raise prices of gypsum board either from 2008 or 2011 to the present; (2) avoid price erosion by ceasing the practice of issuing job quotes; and (3) restrict supply through downtime and limiting order fulfillment. The alleged classes are all persons who purchased gypsum board and/or gypsum finishing products directly or indirectly from any defendant. The complainants seek to recover unspecified treble actual damages and attorneys' fees on behalf of the purported classes. On April 8, 2013, the Judicial Panel on Multidistrict Litigation ordered transfer of all pending cases to the U.S. District Court for the Eastern District of Pennsylvania for coordinated and consolidated pretrial proceedings, and the direct purchaser plaintiffs and indirect purchaser plaintiffs filed their respective amended consolidated complaints in June 2013. The amended consolidated complaints allege a conspiracy or agreement beginning in or before September 2011. "In September 2014, we reached an agreement in principle to settle these cases for an immaterial amount. In February 2015, we executed a definitive settlement agreement, which is subject to court approval," the Company said. INTERNATIONAL PAPER: Canadian Class Actions in Preliminary Stage ---------------------------------------------------------------- International Paper Company said in its Form 10-K Report filed with the Securities and Exchange Commission on February 26, 2015, for the fiscal year ended December 31, 2014, that the Canadian class action cases are in a preliminary stage. In September 2013, similar purported class actions were filed in courts in Quebec, Canada and Ontario, Canada, with each suit alleging violations of the Canadian Competition Act and seeking damages and injunctive relief. The Company intends to dispute the allegations made and to vigorously defend the litigation. "Because these Canadian cases are in a preliminary stage, we are unable to predict an outcome or estimate our maximum reasonably possible loss. However, we do not believe that any material loss is probable," the COmpany said. INTERTHINX INC: "Weber" Suit Seeks to Recover Unpaid Overtime ------------------------------------------------------------- John Weber, on behalf of himself and all others similarly situated v. Interthinx, Inc. and Verisk Analytics, Inc., Case No. 4:15-cv- 00646 (E.D. Mo., April 17, 2015), seeks to recover unpaid overtime wages, liquidated damages, attorneys' fees, costs, and pre- and post-judgment interest pursuant to the Fair Labor Standard Act. Interthinx, Inc. is a California corporation with its principal place of business in California. It provides risk mitigation solutions focusing on mortgage fraud, collateral risk and valuation, regulatory compliance, forensic loan audit services, loss mitigation, and loss forecasting. The Plaintiff is represented by: Rowdy B. Meeks, Esq. ROWDY MEEKS LEGAL GROUP, LLC 10601 Mission Rd., Suite 100 Leawood, MO 66206 Telephone: (913) 766-5585 Facsimile: (816) 875-5069 E-mail: rowdy.meeks@rmlegalgroup.com KARESH GLASS: Faces "Gonzalez" Suit Over Failure to Pay Overtime ---------------------------------------------------------------- Jorge Gonzalez, on behalf of himself and all other similarly situated persons, known and unknown v. Karesh Glass, LLC, and Jorge Diaz, Case No. 1:15-cv-03432 (N.D. Ill., April 18, 2015), is brought against the Defendants for failure to pay overtime wages for hours worked in excess of 40 in a week. The Defendants own and operate a glass installation and fabrication company located at 400 Frontier Way, Bensenville, Illinois. The Plaintiff is represented by: Raisa Alicea, Esq. CONSUMER LAW GROUP, LLC 6232 N Pulaski Rd, Ste. 200 Chicago, IL 60646 Telephone: (312) 800-1017 E-mail: ralicea@yourclg.com KIND LLC: Faces "Kaufer" Suit Over Products Misbranding ------------------------------------------------------- Brandon Kaufer, individually and on behalf of all similarly situated individuals v. Kind, LLC, Case No. 2:15-cv-02878 (C.D. Cal., April 17, 2015), arises out of the Defendant's marketing campaign claiming that its snack bars are healthy or contain healthy nutrients or ingredients. However, the products do not meet the requirements established by the U.S. Food and Drug Administration because they contain elevated levels of saturated fat, not enough nutrients to bear the terms +, plus, or other health related terms, and other ingredients or elements that indicate the product are not truly healthy. Kind, LLC is an international manufacturer, distributor, and seller of various snack products, including fruit & nut bars and granola bars with its principal place of business located in New York, New York. The Plaintiff is represented by: Daniel L. Warshaw, Esq. Alexander R. Safyan, Esq. Matthew A. Pearson, Esq. PEARSON, SIMON & WARSHAW, LLP 15165 Ventura Boulevard, Suite 400 Sherman Oaks, CA 91403 Telephone: (818) 788-8300 Facsimile: (818) 788-8104 E-mail: dwarshaw@pswlaw.com asafyan@pswlaw.com mapearson@pswlaw.com KIND LLC: Faces "McDonald" Suit in Cal. Over Product Misbranding ---------------------------------------------------------------- Charlie McDonald and Benjamin Karter, individually and on behalf of all others similarly situated and the general public v. Kind, LLC, 8:15-cv-00615-CJC-E (C.D. Cal., April 17, 2015), arises out of the Defendant's marketing campaign claiming that its snack bars are healthy or contain healthy nutrients or ingredients. However, the products do not meet the requirements established by the U.S. Food and Drug Administration because they contain elevated levels of saturated fat, not enough nutrients to bear the terms +, plus, or other health related terms, and other ingredients or elements that indicate the product are not truly healthy. Kind, LLC is an international manufacturer, distributor, and seller of various snack products, including fruit & nut bars and granola bars with its principal place of business located in New York, New York. The Plaintiff is represented by: Ronald A. Marron LAW OFFICES OF RONALD A. MARRON 651 Arroyo Drive San Diego, CA 92103 Telephone: (619) 696-9006 Facsimile: (619) 564-6665 E-mail: ron@consumersadvocates.com LA GUADALUPANA: Recalls Hot Chicken, Hot Pork & Vegan Tamales ------------------------------------------------------------- La Guadalupana Wholesale, a long time Mexican food producer based in Chicago, has taken an important action to protect its consumers in the Midwest. "April 8, 2015, we have issued a voluntary recall for our Hot Chicken, Hot Pork and Salsa Verde Vegan tamales sold throughout the Illinois, Wisconsin and Indiana between January 16, 2015 and April 8, 2015" said the Alejandro Castro, Vice-President of La Guadalupana. The measure came after finding the existence of the wrong corn starch in La Guadalupana's Salsa Verde Sauce that includes Egg white powder, which could affect a small segment of the population allergic to this ingredient. "We want to make it clear that this incident occurred when the company which provides us with the corn starch sent us the wrong corn starch that includes Egg white powder" said Alejandro Castro. Accordingly, our labels do not show that Egg white powder is in our Hot Chicken, Hot Pork and Salsa Verde Vegan tamales. "The inclusion of the egg white powder will only cause a health concern for those who are allergic to eggs. We do not want to take any chances." concluded Alejandro Castro. This recall only affects the Hot Chicken, Hot Pork and Salsa Verde Vegan Tamales, all other La Guadalupana products do not contain egg in it. We can assure you that our products are wholesome and clean. We can do this because of all the documentation that we do to assure this to our USDA inspector on a daily basis. Moreover, our last third party audit we scored a Superior rating, 98.46% out of 100%. All these records are open for review as well as our USDA factory if you may need to look over any additional support. Pictures of the Recalled Products available at: http://www.fda.gov/Safety/Recalls/ucm442190.htm LEGGETT & PLATT: No Ruling Yet on US Direct Purchaser Settlement ---------------------------------------------------------------- Leggett & Platt, Incorporated has not yet received a ruling on the settlement in the U.S. direct purchaser class action cases, the Company said in its Form 10-K Report filed with the Securities and Exchange Commission on February 26, 2015, for the fiscal year ended December 31, 2014. "We were named as a defendant in three pending direct purchaser class action cases (the first on November 15, 2010) on behalf of a class of all direct purchasers of polyurethane foam products. The direct purchaser class action cases were all filed in or were transferred to the U.S. District Court for the Northern District of Ohio under the name In re: Polyurethane Foam Antitrust Litigation, Case No. 1:10-MD-2196," the Company said. "The plaintiffs, on behalf of themselves and/or a class of direct purchasers, seek three times the amount of damages allegedly suffered as a result of alleged overcharges in the price of polyurethane foam products from at least 1999 to the present. Each plaintiff also seeks attorney fees, pre-judgment and post-judgment interest, court costs, and injunctive relief against future violations. We filed motions to dismiss the U.S. direct purchaser class actions in the consolidated case in Ohio, for failure to state a legally valid claim, which were denied by the Ohio Court. A motion for class certification was filed on behalf of the direct purchasers. A hearing on the motion was held and the Court certified the direct purchaser class. We filed a Petition for Permission to Appeal from Class Certification Order to the United States Court of Appeals for the Sixth Circuit which was denied. The Court ordered all parties to attend non-binding mediation with a mediator of their choosing. "We reached a tentative settlement in the U.S. direct purchaser class action cases on August 14, 2014, by agreeing to pay an aggregate amount of $39.8 million, inclusive of plaintiff attorneys' fees and costs. We continue to deny all allegations in the cases, but settled the direct purchaser class cases to avoid the risk, uncertainty, expense and distraction of litigation. The settlement is subject to Court approval. We recorded a $39.8 million (pre-tax) accrual for the settlement in the third quarter 2014. In the fourth quarter of 2014, we paid $4 million to the Court related to the tentative settlement. Since the accrual is partially attributable to our former Prime Foam Products business, which was sold in the first quarter of 2007, $8.3 million of expense is reflected in discontinued operations. The deadline for direct purchasers to exclude themselves from the litigation and settlement classes was January 26, 2015. A final fairness hearing was held on February 3, 2015, but we have not yet received a ruling." LEGGETT & PLATT: Ohio Court Ordered Non-Binding Mediation --------------------------------------------------------- Leggett & Platt, Incorporated said in its Form 10-K Report filed with the Securities and Exchange Commission on February 26, 2015, for the fiscal year ended December 31, 2014, that the Ohio Court ordered all parties to attend non-binding mediation with a mediator of their choosing in the U.S. indirect purchaser class action cases. "We were named as a defendant in an indirect purchaser class consolidated amended complaint filed on March 21, 2011 and were subsequently sued in an indirect purchaser class action case filed on May 23, 2011, in the U.S. District Court for the Northern District of Ohio under the name In re: Polyurethane Foam Antitrust Litigation, Case No. 1:10-MD-2196," the Company said. "The plaintiffs, on behalf of themselves and/or a class of indirect purchasers, bring damages claims under various states' antitrust and consumer protection statutes, and are seeking three times an amount of damages allegedly suffered as a result of alleged overcharges in the price of polyurethane foam products from at least 1999 to the present. Each plaintiff also seeks attorney fees, pre-judgment and post-judgment interest, court costs, and injunctive relief against future violations. "We filed motions to dismiss the indirect purchaser class action, for failure to state a legally valid claim. The Ohio Court denied the motions to dismiss. Discovery is substantially complete in this case. A motion for class certification was filed on behalf of the indirect purchasers. A hearing on the motion was held and the Court certified the indirect purchaser class. We filed a Petition for Permission to Appeal from Class Certification Order to the United States Court of Appeals for the Sixth Circuit, which was denied. On November 18, 2014, we filed a Petition for a Writ of Certiorari in the U.S. Supreme Court where it remains pending. The Ohio Court ordered all parties to attend non-binding mediation with a mediator of their choosing." LEGGETT & PLATT: US Direct Purchaser Cases to Be Tried in Ohio -------------------------------------------------------------- Leggett & Platt, Incorporated said in its Form 10-K Report filed with the Securities and Exchange Commission on February 26, 2015, for the fiscal year ended December 31, 2014, that once pretrial practice concludes, some of the individual direct purchaser cases are scheduled to be tried in the U.S. District Court for the Northern District of Ohio. "We have been named as a defendant in 35 individual direct purchaser cases filed between March 22, 2011 and October 16, 2013, which were filed in or transferred to the U.S. District Court for the Northern District of Ohio under the name In re: Polyurethane Foam Antitrust Litigation, Case No. 1:10-MD-2196," the Company said. "The claims in the individual direct purchaser cases are generally the same as those asserted in the direct purchaser class action case, with the exception of one case that also alleges an indirect purchaser claim. Additionally, several individual direct purchaser plaintiffs bring state claims under individual states' consumer protection and/or antitrust statutes in addition to their federal claims. Once pretrial practice concludes, some of the individual direct purchaser cases are scheduled to be tried in the U.S. District Court for the Northern District of Ohio and others will be remanded back to the federal district courts where the cases were originally filed for trial." LEGGETT & PLATT: "Restraint of Trade Act" Cases to Be Remanded -------------------------------------------------------------- Leggett & Platt, Incorporated said in its Form 10-K Report filed with the Securities and Exchange Commission on February 26, 2015, for the fiscal year ended December 31, 2014, that once pretrial practice concludes, the Kansas Restraint of Trade Act Cases will be remanded back to the District of Kansas federal district court for trial. "We have been named as a defendant in two individual cases alleging direct and indirect purchaser claims under the Kansas Restraint of Trade Act, one filed on November 29, 2012 and the other on April 11, 2013," the Company said. "These two cases were filed in the U.S. District Court for the District of Kansas and then transferred to the U.S. District Court for the Northern District of Ohio under the name In re: Polyurethane Foam Antitrust Litigation, Case No. 1:10-MD-2196. The claims and allegations of these plaintiffs are generally the same as the other direct and indirect purchaser plaintiffs, with the exception that the Kansas plaintiffs seek full consideration damages (their total purchase amounts for the allegedly price- fixed polyurethane foam products). Once pretrial practice concludes, this case will be remanded back to the District of Kansas federal district court for trial." LEGGETT & PLATT: Provides Update on Canadian Class Actions ---------------------------------------------------------- Leggett & Platt, Incorporated said in its Form 10-K Report filed with the Securities and Exchange Commission on February 26, 2015, for the fiscal year ended December 31, 2014, that no certification motions will be brought in the Ontario actions until after the British Columbia motions for certification have been determined. "We were named in two Canadian class action cases (for direct and indirect purchasers of polyurethane foam products), both under the name Hi Neighbor Floor Covering Co. Limited and Hickory Springs Manufacturing Company, et.al. in the Ontario Superior Court of Justice (Windsor), Court File Nos. CV-10-15164 (amended November 2, 2011) and CV-11-17279 (issued December 30, 2011)," the Company said. "In each of these Canadian cases, the plaintiffs, on behalf of themselves and/or a class of purchasers, seek from over 13 defendants restitution of the amount allegedly overcharged, general and special damages in the amount of $100 million, punitive damages of $10 million, pre-judgment and post-judgment interest, and the costs of the investigation and the action. The first issued class action is on behalf of a class of purchasers of polyurethane foam. The second issued class action is on behalf of purchasers of carpet underlay. We are not yet required to file our defenses in these or any other Canadian actions. "In addition, on July 10, 2012, plaintiff in a class action case (for direct and indirect purchasers of polyurethane foam products) styled Option Consommateurs and Karine Robillard v. Produits Vitafoam Canada Limitee, et. al. in the Quebec Superior Court of Justice (Montreal), Court File No. 500-6-524-104, filed an amended motion for authorization seeking to add us and other manufacturers of polyurethane foam products as defendants in this case, which was granted. This action has a pending motion for certification, which has been postponed indefinitely. "We also were notified in June 2014 of two motions to add us as parties to two class proceedings in British Columbia. Those proceedings are similar to the Ontario proceedings in that one proposes a class of purchasers of polyurethane foam (Majestic Mattress Mfg. Ltd. v. Vitafoam Products et al., No. VLC-S-S-106362 Vancouver Registry) and one proposes a class of purchasers of carpet underlay (Trillium Project Management Ltd. v. Hickory Springs Manufacturing Company et al., No.S106213 Vancouver Registry). The motion to add us as parties to these actions has been scheduled to be heard with the motions for certification in the two actions in April 2015. "The British Columbia actions involve British Columbia purchasers only whereas the Ontario actions propose classes of Canadian purchasers. No certification motions will be brought in the Ontario actions until after the British Columbia motions for certification have been determined." LEGGETT & PLATT: No Ruling Yet on Class Cert Bid in Missouri Case ----------------------------------------------------------------- Leggett & Platt, Incorporated has yet to receive any ruling on the Plaintiff's motion for class certification in the Missouri Class Action Case, the Company said in its Form 10-K Report filed with the Securities and Exchange Commission on February 26, 2015, for the fiscal year ended December 31, 2014. "On June 22, 2012, we were made a party to a lawsuit brought in the 16th Judicial Circuit Court, Jackson County, Missouri, Case Number 1216-CV15179 under the caption "Dennis Baker, on Behalf of Himself and all Others Similarly Situated vs. Leggett & Platt, Incorporated." The plaintiff, on behalf of himself and/or a class of indirect purchasers of polyurethane foam products in the State of Missouri, alleged that we violated the Missouri Merchandising Practices Act based upon our alleged illegal price inflation of flexible polyurethane foam products. The plaintiff seeks unspecified actual damages, punitive damages and the recovery of reasonable attorney fees. We filed a motion to dismiss this action, which was denied. Discovery has commenced and plaintiff has filed a motion for class certification. A hearing on the motion was held but we have yet to receive any ruling," the Company said. LIVE NATION: Accrued $34.9MM Related to Ticketing Fees Settlement ----------------------------------------------------------------- Live Nation Entertainment, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 26, 2015, for the fiscal year ended December 31, 2014, that as of that date, the Company has accrued $34.9 million related to the settlement in the Ticketing Fees Consumer Class Action Litigation. In October 2003, a putative representative action was filed in the Superior Court of California challenging Ticketmaster's charges to online customers for shipping fees and alleging that its failure to disclose on its website that the charges contain a profit component is unlawful. The complaint asserted a claim for violation of California's Unfair Competition Law ("UCL") and sought restitution or disgorgement of the difference between (i) the total shipping fees charged by Ticketmaster in connection with online ticket sales during the applicable period, and (ii) the amount that Ticketmaster actually paid to the shipper for delivery of those tickets. In August 2005, the plaintiffs filed a first amended complaint, then pleading the case as a putative class action and adding the claim that Ticketmaster's website disclosures in respect of its ticket order processing fees constitute false advertising in violation of California's False Advertising Law. On this new claim, the amended complaint seeks restitution or disgorgement of the entire amount of order processing fees charged by Ticketmaster during the applicable period. In April 2009, the Court granted the plaintiffs' motion for leave to file a second amended complaint adding new claims that (a) Ticketmaster's order processing fees are unconscionable under the UCL, and (b) Ticketmaster's alleged business practices further violate the California Consumer Legal Remedies Act. Plaintiffs later filed a third amended complaint, to which Ticketmaster filed a demurrer in July 2009. The Court overruled Ticketmaster's demurrer in October 2009. The plaintiffs filed a class certification motion in August 2009, which Ticketmaster opposed. In February 2010, the Court granted certification of a class on the first and second causes of action, which allege that Ticketmaster misrepresents/omits the fact of a profit component in Ticketmaster's shipping and order processing fees. The class would consist of California consumers who purchased tickets through Ticketmaster's website from 1999 to present. The Court denied certification of a class on the third and fourth causes of action, which allege that Ticketmaster's shipping and order processing fees are unconscionably high. In March 2010, Ticketmaster filed a Petition for Writ of Mandate with the California Court of Appeal, and plaintiffs also filed a motion for reconsideration of the Superior Court's class certification order. In April 2010, the Superior Court denied plaintiffs' Motion for Reconsideration of the Court's class certification order, and the Court of Appeal denied Ticketmaster's Petition for Writ of Mandate. In June 2010, the Court of Appeal granted the plaintiffs' Petition for Writ of Mandate and ordered the Superior Court to vacate its February 2010 order denying plaintiffs' motion to certify a national class and enter a new order granting plaintiffs' motion to certify a nationwide class on the first and second claims. In September 2010, Ticketmaster filed its Motion for Summary Judgment on all causes of action in the Superior Court, and that same month plaintiffs filed their Motion for Summary Adjudication of various affirmative defenses asserted by Ticketmaster. In November 2010, Ticketmaster filed its Motion to Decertify Class. In December 2010, the parties entered into a binding agreement providing for the settlement of the litigation and the resolution of all claims therein. In September 2011, the Court declined to approve the settlement in its then-current form. Litigation continued, and later that same month, the Court granted in part and denied in part Ticketmaster's Motion for Summary Judgment. The parties reached a new settlement in September 2011, which was preliminarily approved, but in September 2012 the Court declined to grant final approval. In June 2013, the parties reached a revised settlement, which was preliminarily approved by the Court in April 2014. Ticketmaster and its parent, Live Nation, have not acknowledged any violations of law or liability in connection with the matter. As of December 31, 2014, the Company has accrued $34.9 million, its best estimate of the probable costs associated with the settlement. This liability includes an estimated redemption rate. Any difference between the Company's estimated redemption rate and the actual redemption rate it experiences will impact the final settlement amount; however, the Company does not expect this difference to be material. LONG ISLAND: "Guan" Suit Seeks to Recover Unpaid Overtime Wages --------------------------------------------------------------- Chun Lan Guan, on behalf of herself and others similarly situated v. Long Island Business Institute, Inc. and Monica Foote, Case No. 1:15-cv-02215 (E.D.N.Y., April 18, 2015), seeks to recover unpaid overtime wages, liquidated damages, prejudgment and post-judgment interest, and attorneys' fees and costs. Long Island Business Institute, Inc.is a two-year, for-profit college of business and Career College, offering certificate and associate degree programs. The Plaintiff is represented by: John Troy, Esq. TROY & ASSOCIATES, PLLC 41-25 Kissena Blvd., Suite 119 Flushing, NY 11355 Telephone: (718) 762-1324 Facsimile: (718) 762-1342 E-mail: tsaihongjanq@hotmail.com MACHINE ZONE: Accused of Wrongful Conduct Over Mobile Application ----------------------------------------------------------------- Mia Mason, individually, and on behalf of all others similarly situated v. Machine Zone, Inc., Case No. 1:15-cv-01107 (D. Md., April 17, 2015), arises out of the Defendant's Game of War mobile application that is alleged to be a slot machine or device because it is a machine, apparatus, or device that has been adapted for use in a way that is operated through the insertion of money by electronic means, and by reason of chance the users may receive a thing of value that may be given in trade for money, credit, allowance, or a thing or value. Machine Zone, Inc. operates the popular Game of War videogame, which is available on Android and Apple iOS devices. The Plaintiff is represented by: Maria C. Simon, Esq. THE GELLER LAW GROUP 4000 Legato Road, Suite 1100 Fairfax, Virginia 22033 Telephone: (703) 679-7067 Facsimile: (703) 259-8584 E-mail: msimon@thegellerlawgroup.com - and - Rafey S. Balabanian, Esq. Benjamin H. Richman, Esq. Amir C. Missaghi, Esq. EDELSON PC 350 North LaSalle Street, Suite 1300 Chicago, IL 60654 Telephone: (312) 589.6370 Facsimile: (312) 589.6378 E-mail: rbalabanian@edelson.com brichman@edelson.com amissaghi@edelson.com MARIO'S PIZZERIA: Faces "Gomez" Suit Over Failure to Pay Overtime ----------------------------------------------------------------- Roberto Gomez, on behalf of himself and all others similarly situated v. Mario's Pizzeria of Seaford Corp., et al., Case No. 2:15-cv-02209 (E.D.N.Y., April 17, 2015), is brought against the Defendant for failure to pay overtime wages in violation of the Fair Labor Standard Act. Mario's Pizzeria of Seaford Corp. owns and operates a pizzeria located at 3842 Sunrise Highway, Seaford, New York 11783. The Plaintiff is represented by: Jose G. Santiago, Esq. THE SANTIAGO LAW FIRM, P.C. 201 Moreland Road, Suite 10 Hauppauge, NY 11788 Telephone: (631) 240-4355 Facsimile: (631) 406-4911 E-mail: jose@santiagolawfirm.com MARRIOTT VACATIONS: Final Hearing Held to Approve "Benner" Accord ----------------------------------------------------------------- Marriott Vacations Worldwide Corporation said in its Form 10-K Report filed with the Securities and Exchange Commission on February 26, 2015, for the fiscal year ended January 2, 2015, that a final hearing was scheduled for March 31, 2015, to approve settlement in the putative class action filed by Jon Benner. "On December 21, 2012, Jon Benner, an owner of fractional interests in The Ritz-Carlton Club and Residences, San Francisco (the "RCC San Francisco"), filed suit in Superior Court for the State of California, County of San Francisco against us and certain of our subsidiaries on behalf of a putative class consisting of all owners of fractional interests at the RCC San Francisco who allegedly did not receive proper notice of their payment obligations under the Mello-Roos Act," the Company said. The plaintiff alleges that the disclosures made about bonds issued for the project under this Act and the payment obligations of fractional interest purchasers with respect to such bonds were inadequate, and this and other alleged statutory violations constitute intentional and negligent misrepresentation, fraud and fraudulent concealment. The relief sought includes damages in an unspecified amount, rescission of the purchases, restitution and disgorgement of profits. This lawsuit is distinct from the other lawsuits relating to the RCC San Francisco because the disclosure process for the sale of fractional interests differs from that applicable to the sale of whole-ownership units. "On September 5, 2014, we reached an agreement in principle to settle the Benner action, which agreement was subject to court approval because the case is a putative class action. As a result of the agreement in principle, we recorded a charge of $3 million, which is included in the Litigation settlement line on the Statement of Income for the year ended January 2, 2015. The court preliminarily approved the settlement on November 7, 2014, and a final hearing is scheduled for March 31, 2015," the Company said. MARRIOTT VACATIONS: Partial Judgment Motion Granted in Hoyt Case ---------------------------------------------------------------- Marriott Vacations Worldwide Corporation said in its Form 10-K Report filed with the Securities and Exchange Commission on February 26, 2015, for the fiscal year ended January 2, 2015, that the court granted the Company's motion for partial judgment on the pleadings clarifying the scope of the single remaining claim in the case filed by Steven B. Hoyt and Bradley A. Hoyt. "On December 11, 2012, Steven B. Hoyt and Bradley A. Hoyt, purchasers of fractional interests in two of The Ritz-Carlton Destination Club projects, filed suit in the United States District Court for the District of Minnesota against us, certain of our subsidiaries and The Ritz-Carlton Hotel Company on behalf of a putative class consisting of all purchasers of fractional interests at The Ritz-Carlton Destination Club projects," the Company said. The plaintiffs allege that program changes beginning in 2009 caused an actionable decrease in the value of the fractional interests purchased. The relief sought includes declaratory and injunctive relief, damages in an unspecified amount, rescission of the purchases, restitution, disgorgement of profits, interest and attorneys' fees. "In response to our motion to dismiss the original complaint, plaintiffs filed an amended complaint. In response, we filed a renewed motion to dismiss. On February 7, 2014, the court issued an order granting that motion in part and denying it in part. On November 6, 2014, the court granted our motion for partial judgment on the pleadings clarifying the scope of the single remaining claim in the case. We continue to dispute the material allegations remaining in the amended complaint and intend to continue to defend against this action vigorously. Given the early stages of the action and the inherent uncertainties of litigation, we cannot estimate a range of the potential liability, if any, at this time," the Company said. MARRIOTT VACATIONS: Court Dismissed "DeSantis" Case --------------------------------------------------- Marriott Vacations Worldwide Corporation said in its Form 10-K Report filed with the Securities and Exchange Commission on February 26, 2015, for the fiscal year ended January 2, 2015, that the court granted the Company's motion to dismiss the case filed by Salvatore DeSantis. "On March 27, 2014, Salvatore DeSantis, an owner of a one-week vacation ownership interest at Marriott's Harbour Lake, a project within our North America segment, filed a complaint in Orange County, Florida, Circuit Court against us and certain of our subsidiaries on behalf of himself and a putative class consisting of all owners of weeks-based Marriott Vacation Club vacation ownership interests on June 20, 2010, the date of the launch of our North America points-based program, Marriott Vacation Club Destinations(TM) ("MVCD")," the Company said. The plaintiff alleges that the introduction of the MVCD program caused an actionable decrease in the value of his vacation ownership interest. The relief sought includes compensatory and exemplary damages, restitution, injunctive relief, interest and attorneys' fees pursuant to the Florida Unfair and Deceptive Trade Practices Act and common-law theories of breach of contract and breach of an implied covenant of good faith and fair dealing. "We removed the matter to the United States District Court for the Middle District of Florida. On May 30, 2014, we filed a motion to dismiss. In response, plaintiffs filed an amended complaint, to which we responded by filing a renewed motion to dismiss on July 31, 2014. On November 14, 2014, the court granted our motion and dismissed the case with prejudice," the Company said. MARRIOTT VACATIONS: 9th Cir. Granted Motion to Expedite Appeal -------------------------------------------------------------- Marriott Vacations Worldwide Corporation said in its Form 10-K Report filed with the Securities and Exchange Commission on February 26, 2015, for the fiscal year ended January 2, 2015, that the United States Court of Appeals for the Ninth Circuit granted the Company's motion to expedite an appeal. "On May 20, 2014, we received notices of intent to initiate litigation or arbitration from: Michael and Marla Flynn, owners of weeks-based Marriott Vacation Club vacation ownership products at two of our resorts in Hawaii; Norman and Carreen Abramson, owners of such products at one of our resorts in California; and William Sterman, an owner of such products at one of our resorts in Massachusetts," the Company said. "The claimants, all of whom are represented by a single law firm, make allegations similar to those alleged by Mr. DeSantis discussed above that the introduction of the MVCD program caused an actionable decrease in the value of their vacation ownership interests. The claimants stated that, if a satisfactory resolution of their concerns cannot be achieved, they would pursue their claims through litigation or arbitration, each on behalf of a putative class consisting of themselves and all others similarly situated. The notices indicated that the relief that would be sought would include compensatory and exemplary damages, restitution, injunctive relief, interest and attorneys' fees pursuant to applicable timeshare and unfair trade practices acts and common-law theories of breach of contract and breach of an implied covenant of good faith and fair dealing. "The Flynns and Mr. Sterman filed claims based on the allegations listed above with the American Arbitration Association on August 6, 2014, and August 19, 2014, respectively. We filed answering statements in each proceeding, and initiated declaratory judgment actions in the United States District Courts of Hawaii and the Middle District of Florida against the Flynns and Mr. Sterman, respectively, seeking to enjoin the arbitration proceedings. On December 11, 2014, the United States District Court for the District of Hawaii ruled that the arbitrability of the Flynns' claims must be resolved by an arbitrator. We appealed that decision and on January 16, 2015, the United States Court of Appeals for the Ninth Circuit granted our motion to expedite the appeal. The Flynns' moved to dismiss the appeal, and we have opposed that motion. "Also on January 16, 2015, the United States District Court for the Middle District of Florida ruled that the arbitrability of Mr. Sterman's claims must be resolved by an arbitrator. On January 29, 2015, the Abramsons filed an action in the United States District Court for the Central District of California based on the above allegations. We dispute the material allegations in the arbitration claims, as well as the allegations in the California action, and intend to defend against them vigorously. Given the early stages of the arbitration proceedings and the related litigation, we cannot estimate a range of potential liability, if any, at this time." MICHAELS STORES: Class Actions Over Credit Checks Consolidated -------------------------------------------------------------- Charles Toutant, writing for New Jersey Law Journal, reports that three class-action suits accusing crafts retailer Michaels Stores of failing to properly disclose to job applicants its use of their credit reports in employment decisions have been consolidated in federal court in Newark. The Judicial Panel on Multidistrict Litigation ordered April 2 that cases from the U.S. District Courts for the Northern District of Texas and the Western District of Missouri be transferred to New Jersey, where U.S. District Judge Kevin McNulty of the District of New Jersey has been hearing another such case. Michaels, headquartered in Irving, Texas, preferred the Texas venue but the panel picked New Jersey after noting that the defendant has a nationwide presence and that the case before McNulty was filed before the others. The suits claim that Michaels violates a requirement of the Fair Credit Reporting Act that requires employers intending to procure job applicants' credit reports to make "clear and conspicuous" disclosure of the practice in a stand-alone document that "consists solely of the disclosure." Michaels' online job application fails to comply because the disclosure is embedded in one long, continuous Web page, according to the suits. On the Michaels job application, a disclosure about the credit report being obtained for employment purposes appears on the same page with "numerous other pieces of extraneous information," including several multiparagraph notices relating to various state laws, the suits allege. Many of the extraneous pieces of information surrounding the credit reporting notice on the Michaels job application "are the subject of longstanding [Federal Trade Commission] and judicial guidance indicating that their presence alone is sufficient to render an otherwise compliant disclosure noncompliant," according to the complaint in the New Jersey case, Graham v. Michaels Stores. Michaels' application includes a purported liability waiver, which is "a particularly well-established violation of the Fair Credit Reporting Act," according to the complaint in Graham. Michaels violated the act even after the vendor that conducts its background reports, General Information Services of Chapin, South Carolina, repeatedly advised its clients that the background check disclosure must be in a stand-alone document, and Michaels certified to GIS that it would comply, the Graham complaint alleges. The suits seek statutory damages of up to $1,000 per class member, plus punitive damages and legal fees. In Graham and in Castro v. Michaels Stores, the case originating in Texas, the defendant has offered to settle the case with each named plaintiff for $12,000, plus attorney fees, according to court documents. Christina Graham, the New Jersey plaintiff, rejected the $12,000 offer but Michele Castro, the original Texas plaintiff, accepted the deal and was replaced with another plaintiff, Janice Bercut. Michaels has maintained in court papers that the plaintiffs' claims are moot under the Offer of Judgment Rule because the settlement offers fully satisfy plaintiffs' claims. The company also filed motions to dismiss in Graham and Castro and has claimed that its online job application did comply with the FCRA. The complaints failed to disclose that Michaels' website "included a clear and conspicuous hyperlink labeled 'click here for a printable copy of the disclosure form and Fair Credit Reporting Act.' The hyperlink is conspicuous and easily seen, as it is set apart from the paragraphs preceding it, the text is underlined, appears in blue instead of black like the other text near it," the defendant's brief states. Michaels has also argued in the filings that it did not commit a willful violation of the FCRA and the plaintiffs and class are therefore not entitled to statutory damages or attorney fees. The company also claimed in its motion to dismiss the New Jersey case that the plaintiff waived her right to sue because the online application form required her to click a box stating "I agree" and listing terms of use of the website. The terms of use state, in part, that Michaels and the designer of the site may not be held liable to users of the site. The lawyers for Michaels, Pamela Devata of Seyfarth Shaw in Chicago, and Robert Szyba of Seyfarth Shaw in New York, did not respond to requests for comment about the case. Jeffrey Gottlieb of Gottlieb & Associates in New York, who represents the plaintiff in Graham, declined to comment on the litigation. Other plaintiffs lawyers in the case did not return calls. NETFLIX INC: 9th Circuit Affirms Dismissal of "Cullen" ADA Suit --------------------------------------------------------------- The Americans with Disabilities Act does not apply to Netflix because the service is not connected to an "actual, physical place," reports Katherine Proctor at Courthouse News Service, citing a 9th Circuit ruling entered on April 2. In a short unpublished opinion, the three-judge panel held that Donald Cullen's claims for ADA violations "fail as a matter of law." The panel also ruled that Cullen's putative class action failed to allege any injury directly resulting from Netflix's business practices. It affirmed Northern District of California's dismissal. The appellate case is Donald Cullen, on behalf of himself and all others similarly situated v. Netflix, Inc., Case No. 13-15092, in the United States Court of Appeals for the Ninth Circuit. The District Court case is Donald Cullen, on behalf of himself and all others similarly situated v. Netflix, Inc., Case No. 5:11-cv- 01199-EJD, in the U.S. District Court for the Northern District of California. NOMAC DRILLING: Sued Over Failure to Provide Layoff Notice ---------------------------------------------------------- Gregory Thompson, Kevin Buck, and Christopher Deaver, on behalf of themselves and all others similarly situated v. Nomac Drilling, LLC, Case No. 2:15-cv-00526 (E.D. Tex., April 17, 2015), is brought against the Defendant for failure to provide 60 days' advance written notice in connection with recent a Mass Layoff and Plant Closing at the Defendant's Marshall, Texas, El Reno, Oklahoma and Mount Morris, Pennsylvania sites. Nomac Drilling, LLC operates drilling rigs in and around El Reno, Oklahoma. The Plaintiff is represented by: Allen Ryan Vaught, Esq. BARON & BUDD, PC 3102 Oak Lawn Avenue, Suite 1100 Dallas, TX 75219 Telephone: (214) 521-3605 Facsimile: (214) 520-1181 E-mail: avaught@baronbudd.com NOVAK HOSPITALITY: Faces "Galvan" Suit over Failure to Pay OT ------------------------------------------------------------- Marina Galvan, individually and on behalf of other employees similarly situated v. Novak Hospitality, Inc., Chiku Enterprises, Inc., and Jignesh Jagaria, Case No. 1:15-cv-03426 (N.D. Ill., April 17, 2015), is brought against the Defendants for failure to pay overtime wages for hours worked in excess of 40 in a week. The Defendants own and operate a hotel in Cook County, Illinois. The Plaintiff is represented by: David Erik Stevens, Esq. CONSUMER LAW GROUP, LLC 6232 N. Pulaski, Suite 200 Chicago, IL 60646 Telephone: (312) 307-0766 E-mail: Dave@StevensLawLLC.com NOVARTIS: Bellwether Suit Over Bone Loss Drug Zometa Settled ------------------------------------------------------------ Mary Pat Gallagher, writing for New Jersey Law Journal, reports that one of only two cases to go to trial in New Jersey in litigation involving the bone loss drug Zometa has been settled on unknown terms just before a state appeals court was scheduled to issue a ruling. A three-judge Appellate Division panel had been expected to decide whether to affirm or reverse the no-cause verdict won by Novartis against plaintiff Beverly Meng. The court announced April 9 that "the issues in the dispute have been amicably resolved." Attorneys on both sides declined to discuss the settlement terms in Meng v. Novartis, or the fate of the 119 Zometa/Aredia cases that remained in New Jersey as of April 1. The suits were designated as a mass tort in January 2008 and centralized in Middlesex County Superior Court. Prior to that, in April 2006, the Judicial Panel on Multidistrict Litigation had consolidated federal actions around the country in the U.S. District Court for the Middle District of Tennessee. The plaintiffs claim that the bisphosphonate drugs Aredia and Zometa, made by Novartis Pharmaceuticals Corp., of East Hanover, which are used to treat osteoporosis, caused osteonecrosis of the jaw, or "bone death," according to court documents. They allege pain and disfigurement as a result, from loss of teeth and the jaw bone itself, which in some cases has to be surgically removed and a metal plate or rod inserted. Similar allegations have been made about another bisphosphonate, Fosamax, which is manufactured by Merck. New Jersey's Fosamax litigation -- comprising 3,158 cases as of April 6 -- is also centralized in Middlesex County, before the same judge handling the Zometa/Aredia litigation, Jessica Mayer. In the recently settled Zometa case, Ms. Meng sued in 2007, alleging that, except for about six months in mid-2006, she had monthly intravenous infusions of Zometa from July 2002 until November 2006, according to court documents. It was prescribed to control bone metastases from breast cancer that had spread to her spine, court documents said. She stopped the Zometa in November 2006 around the time her dentist noticed exposed bone in her mouth. Osteonecrosis was diagnosed in February 2007. Before Ms. Meng's case went to trial in the spring of 2013 on a claim of failure to provide an adequate warning, Ms. Mayer dismissed other counts -- for strict liability, design defect, breach of express warranty and consumer fraud -- on a motion for summary judgment. Ms. Mayer applied the law of Mississippi, where Ms. Meng lived while taking Zometa. In allowing the failure-to-warn claim to proceed, Ms. Mayer discussed the warnings provided by Novartis regarding the bone death risk. The first mention was a September 2003 package insert stating that there had been reports of osteonecrosis but the condition had "other well-documented multiple risk factors" and it was not possible to determine if it was connected to Zometa, court documents said. A February 2004 revision of the warning added that most of the osteonecroses reported were in cancer patients who had other risk factors such as chemotherapy, corticosteroids, anemia and infection. It described those cases as "attendant to a dental procedure" and concluded "it is prudent to avoid dental surgery." An August 2004 update mentioned that the majority of instances were associated with tooth extraction and many people had signs of local infection, according to court documents. The warning recommended having a dental examination before taking the drug and avoiding invasive dental procedures while on it. That warning was the one in effect when Ms. Meng had the dental procedure that allegedly triggered osteonecrosis, according to Mayer's summary judgment opinion. Ms. Mayer found Ms. Meng's evidence sufficient to raise an issue of fact as to adequacy. Ms. Meng's labeling expert, Dr. Suzanne Parisian, criticized the warning as "'misleading'" because of the associations it drew to other risk factors, according to Mayer. In addition, Ms. Meng's doctor, Louis Puneky, testified that if he had better understood the risks, he would have prescribed the Zometa differently, according to Ms. Mayer. He said he would not have kept Ms. Meng on Zometa for four years and probably after two years would have "'backed down on the dosage to maybe every three months.'" Dr. Puneky indicated he would have taken the risk more seriously if it been a black box warning rather than an adverse event in the caution section of the label, according to Mayer. Despite surviving summary judgment, Ms. Meng's failure-to-warn claim did not convince a jury. At the end of a 13-day trial, the jury voted 7-1 on May 19, 2013, to answer "no" to the question: "Did Novartis fail to provide an adequate warning to Ms. Meng's prescribing physician concerning the risk of osteonecrosis of the jaw from Zometa that Novartis either knew or in light of the reasonably available knowledge should have known prior to Ms. Meng discontinuing use of the drug?" Novartis likewise prevailed at the first and only other Zometa trial in New Jersey, where the jury, by a 7-2 vote, answered "no" to the same question on Oct. 6, 2010. There, plaintiff Jane Bessemer, also a breast cancer patient with bone metastases, was treated intravenously with Aredia and Zometa from May 1999 to April 2004, to reduce the chance of spinal fracture and degeneration and also to alleviate bone pain, according to court documents. She alleged that a June 2000 tooth extraction triggered osteonecrosis and that dentists and oral surgeons who tried to help her only made it worse because they were unaware of the nature and cause of that type of jaw bone disease, court documents said. Ms. Bessemer sued under New Jersey's Product Liability and Consumer Fraud Acts. In the months leading up to trial, Ms. Mayer held that Novartis had no duty to warn nonprescribing dentists and oral surgeons and rejected Bessemer's contention that the learned intermediary defense should not apply because Novartis advertised directly to consumers. Those rulings were upheld on appeal on June 13, 2012, and the New Jersey Supreme Court denied Bessemer's petition for review five months later. There have been no New Jersey trials since Ms. Meng's and none are presently scheduled. In contrast to plaintiffs' lack of success in New Jersey, significant verdicts have been won in federal cases that the MDL judge has sent back to the courts of origin for trial. For example, in 2012, Herbert Fussman, as administrator for the estate of his wife, Rita Fussman, was awarded $287,000 in compensatory damages and $12.6 million in punitive damages in the U.S. District Court for the Middle District of North Carolina. The judge in that case cut the punitive damages to $861,000 because North Carolina law limits punitives to the greater of $250,000 or three times the compensatory amount. The final judgment of about $1.26 million, including prejudgment interest, was affirmed by the U.S. Court of Appeals for the Fourth Circuit on Feb. 8, 2013. Two other plaintiffs, Dianna Chiles and Nancy Guenther, respectively, obtained $250,000 and $1 million judgments in the U.S. District Court for the Middle District of Florida, both of which Novartis appealed to the U.S. Court of Appeals for the Eleventh Circuit. As in Meng, those appeals will not be decided because they were dismissed at the request of the parties within the last six weeks, according to court documents. Novartis' attorneys, Joe Hollingsworth, of Hollingsworth LLP in Washington, D.C., and Beth Rose -- brose@sillscummis.com -- of Sills Cummis & Gross in Newark, declined to comment. Also declining to comment was one of Ms. Meng's lawyers, John Vecchione of Fairfax, Virginia, who also represented Fussman, Chiles and Guenther. Two other lawyers representing Ms. Meng could not be reached: John Beins -- Jbeins@beinsgoldberg.com -- of Beins Goldberg in Chevy Chase, Maryland, and Terence Sweeney of Chatham. OASIS PETROLEUM: To Defend Claims Connected to Train Derailment --------------------------------------------------------------- Oasis Petroleum Inc. intends to vigorously defend against all claims in connection with the derailment of the Train in Lac- Megantic, Quebec, Oasis said in its Form 10-K Report filed with the Securities and Exchange Commission on February 26, 2015, for the fiscal year ended December 31, 2014. On July 6, 2013, a freight train operated by Montreal, Maine and Atlantic Railway ("MMA") carrying crude oil (the "Train") derailed in Lac-Megantic, Quebec. In March 2014, Oasis Petroleum Inc. and OP LLC were added to a group of over fifty named defendants, including other crude oil producers as well as the Canadian Pacific Railway, MMA and certain of its affiliates, owners and transloaders of the crude oil carried by the Train, several lessors of tank cars, and the Attorney General of Canada, in a motion filed in Quebec Superior Court to authorize a class-action lawsuit seeking economic, compensatory and punitive damages, as well as costs for claims arising out of the derailment of the Train (Yannick Gagne, etc., et al. v. Rail World, Inc., etc., et al., Case No. 48006000001132). The motion generally alleges wrongful death and negligence in the failure to provide for the proper and safe transportation of crude oil. "We believe that all claims against Oasis Petroleum Inc. and OP LLC in connection with the derailment of the Train in Lac- Megantic, Quebec are without merit and intend to vigorously defend against them," the Company said. PRINCIPAL LIFE: Sued in Iowa Over High Investment Products Fees --------------------------------------------------------------- Krystal M. Anderson, and all others similarly situated v. Principal Life Insurance Company, Benefits Plans Administrative Committee, Benefits Plans Investment Committee, Case No. 4:15-cv- 00119 (S.D. Iowa, April 17, 2015), alleges that the Defendants charge higher fees for investment products and plan administrative services than is typical of peer mega plans in violation of the Employee Retirement Income Security Act. Principal Life Insurance Company is a life insurance, retirement plan recordkeeping, and investment services company. The Plaintiff is represented by: Kay M. Johansen, Esq. THE LAW OFFICE OF KAY JOHANSEN 504 First Ave. S.E. Mount Vernon, IA 52314 Telephone: (319) 895-6540 Facsimile: (319) 895-6560 E-mail: kay.johansen@kjohansenlaw.com - and - Gregory Y. Porter, Esq. BAILEY & GLASSER LLP 910 17th Street, Suite 800 Washington, DC 20006 Telephone: (202) 463-2101 E-mail: gporter@baileyglasser.com PROCTOR & GAMBLE: Suit Claims Denture Cause Neurological Damage --------------------------------------------------------------- Scott Flaherty, writing for Law.com, reports that after chipping away for years at claims that Procter & Gamble's Fixodent denture glue can cause neurological damage, P&G's lawyers at Weil, Gotshal & Manges reached what looked like a breakthrough in late January, more than half a decade into the case. That ruling formally knocked out the last of the claims in the consolidated litigation, with the last of the dismissals lodged on April 9. On Jan. 28, U.S. District Judge Cecilia Altonaga in Miami found that plaintiffs lawyers had offered flawed evidence in support of a theory that the zinc in Fixodent has a causal link to neurological damage. The ruling kept the plaintiffs' causation expert from testifying and undermined the claims of injury in the denture cream case, which dates back to June 2009. It wasn't immediate, but the plaintiffs' lawyers, including Eric Chaffin of Chaffin Luhana, eventually conceded that without their causation expert, they didn't have a case. On March 28, the two sides stipulated that Judge Altonaga's ruling in January was "case-dispositive." The stipulation was followed by more than 60 docket entries dismissing individual cases with prejudice. In a statement, lead P&G counsel Edward Soto of Weil said the judge's causation ruling gave the plaintiffs no choice. "Plaintiffs had nowhere to go after Judge Altonaga's well-written decision," said Mr. Soto. "They certainly could not have gone to trial without any admissible general causation experts." In their March 28 stipulation, the plaintiffs' lawyers reserved their right to appeal to the U.S. Court of Appeals for the Eleventh Circuit. The dismissal comes in a case that has dragged on for nearly six years, despite favorable rulings for P&G along the way. Initially, the multidistrict litigation also targeted GlaxoSmithKline over its Super Poligrip denture cream. But GSK announced in 2010 it would stop using zinc in Poligrip, and later reached a series of settlements in the denture cream litigation, worth a reported $120 million. P&G and its legal team opted to keep fighting the claims. In June 2011, Weil convinced Judge Altonaga to find against the plaintiffs' causation theory in a ruling that the Eleventh Circuit later affirmed. But that didn't stop the plaintiffs, who insisted that they had found new evidence to support the claim that Fixodent could cause neurological damage known as copper deficiency myeloneuropathy. Judge Altonaga's ruling in January shot down the plaintiffs' revamped argument, ruling that the new evidence they presented might be promising on the surface, but was ultimately based on "factually inaccurate data and unsupported assumptions." In addition to Soto, Weil's Edward McCarthy and Lara Bach -- lara.bach@weil.com -- represent P&G, joined by lawyers at Dinsmore & Shohl and Goldberg Segalla. The lineup for the plaintiffs also includes Andres Alonso of Alonso Krangle and Melanie Muhlstock of Parker Waichman. PROMPT MEDICAL: Faces "Schroers" Suit Over Failure to Pay OT ------------------------------------------------------------ Steven Schroers, on behalf of himself and all other similarly- situated employees v. Prompt Medical Transportation, Inc. d/b/a Prompt Ambulance Service and Indiana EMS, Gary Miller, Shar Miller, and Joseph Merry, Case No. 2:15-cv-00153 (N.D. Ind., April 17, 2015), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standard Act. The Defendants own and operate an ambulance service company that contracts with municipalities in Northwest Indiana. The Plaintiff is represented by: Paul E. Luka, Esq. LAW OFFICE OF PAUL LUKA PC 120 S State St Suite 400 Chicago, IL 60603 Telephone: (312) 971-7309 Facsimile: (312) 236-9826 E-mail: paul@lukapc.com PROTECTIVE LIFE: Four Lawsuits Filed on Dai-ichi Merger ------------------------------------------------------- Protective Life Corporation said in its Form 10-K Report filed with the Securities and Exchange Commission on February 26, 2015, for the fiscal year ended December 31, 2014, that after the entry into the Merger Agreement on June 3, 2014, four lawsuits were filed against the Company, the Company's then current directors, Dai-ichi Life and DL Investment (Delaware), Inc. on behalf of alleged Company shareowners. The Company said, "On June 11, 2014, a putative class action lawsuit styled Edelman, et al. v. Protective Life Corporation, et al., Civil Action No. 01-CV-2014-902474.00, was filed in the Circuit Court of Jefferson County, Alabama. On July 30, 2014, the plaintiff in Edelman filed an amended complaint. Three putative class action lawsuits were filed in the Court of Chancery of the State of Delaware, Martin, et al. v. Protective Life Corporation, et al., Civil Action No. 9794-CB, filed June 19, 2014, Leyendecker, et al. v. Protective Life Corporation, et al., Civil Action No. 9931-CB, filed July 22, 2014 and Hilburn, et al. v. Protective Life Corporation, et al., Civil Action No. 9937-CB, filed July 23, 2014. The Delaware Court of Chancery consolidated the Martin, Leyendecker, and Hilburn actions under the caption In re Protective Life Corp. Stockholders Litigation, Consolidated Civil Action No. 9794-CB, designated the Hilburn complaint as the operative consolidated complaint (the "Delaware Action") and appointed Charlotte Martin, Samuel J. Leyendecker, Jr., and Deborah J. Hilburn to serve as co-lead plaintiffs. "These lawsuits allege that our Board of Directors breached its fiduciary duties to our shareowners, that the Merger involves an unfair price, an inadequate sales process, and unreasonable deal protection devices that purportedly preclude competing offers, and that the preliminary proxy statement filed with the SEC on July 10, 2014 failed to disclose purportedly material information. The complaints also alleged that the Company, Dai-ichi Life and DL Investment (Delaware), Inc. aided and abetted those alleged breaches of fiduciary duties. The complaints seek injunctive relief, including enjoining or rescinding the Merger, and attorneys' and other fees and costs, in addition to other relief. The Delaware Action also seeks an award of unspecified damages. "With respect to the Edelman lawsuit, on September 5, 2014, the court held a hearing to address motions to dismiss the lawsuit filed on behalf of the Company, the members of the Company's Board, and DL Investment (Delaware), Inc. On September 19, 2014, the court granted those motions and dismissed the Edelman lawsuit in its entirety and with prejudice, pending a possible appeal by the plaintiff. "With respect to the Delaware Action, on September 24, 2014, the Company, each of the members of the Company's Board, Dai-ichi Life, and DL Investment (Delaware), Inc. entered into a Memorandum of Understanding (the "MOU") with the plaintiffs in that case, which sets forth the parties' agreement in principle for a settlement of the Delaware Action. As set forth in the MOU, the Company, the members of the Company's Board, Dai-ichi Life, and DL Investment (Delaware), Inc. agreed to the settlement solely to eliminate the burden, expense, distraction, and uncertainties inherent in further litigation, and without admitting any liability or wrongdoing. The MOU contemplates that the parties will seek to enter into a stipulation of settlement providing for the certification of a mandatory non opt-out class, for settlement purposes only, to include any and all record and beneficial owners of shares (excluding the members of the Company's Board and their immediate family members, any entity in which any member of the Company's Board has a controlling interest, and any successors in interest thereto) that held shares at any time during the period beginning on June 3, 2014, through the date of consummation or termination of the Merger, including any and all of their respective successors in interest, successors, predecessors in interest, representatives, trustees, executors, administrators, heirs, assigns, or transferees, immediate and remote, and any person or entity acting for or on behalf of, or claiming under, any of them, together with their predecessors, successors and assigns, and a global release of claims relating to the Merger as set forth in the MOU. As part of the settlement, the Company agreed to make certain additional disclosures related to the Merger which are set forth in the Company's Form 8-K filed on September 25, 2014 and which supplement the information contained in the Company's definitive proxy statement filed with the SEC on August 25, 2014, as amended on August 27, 2014. Nothing in the Form 8-K or any stipulation of settlement shall be deemed an admission of the legal necessity or materiality of any of the disclosures set forth in the Form 8-K. The claims in the Delaware Action will not be released until the stipulation of settlement is approved by the Court of Chancery of the State of Delaware. The proposed settlement would have no effect on the consideration received by Company stockholders in connection with the completion of the Merger. "There can be no assurance, however, that the court will approve the proposed settlement, nor can there be any assurance as to the size of any award of attorneys' fees and expenses to the plaintiffs' counsel. The Company cannot provide assurances as to the ultimate settlement of the Delaware Action or with respect to any lawsuits regarding the Merger that may be filed in the future." QC FINANCIAL: Sued in C.D. Cal. Over Alleged Invasion of Privacy ---------------------------------------------------------------- Mike Marquez, individually and on behalf of all others similarly situated v. QC Financial Services, Inc. and QC Holdings, Inc., Case No. 2:15-cv-02884 (C.D. Cal., April 17, 2015), seeks to put an end on the Defendant's illegal practice of recording cellular telephone conversations without the knowledge or consent of the person being recorded. The Defendants are full service accounts receivable management companies in California. The Plaintiff is represented by: Todd M. Friedman, Esq. Suren N. Weerasuriya, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 324 S. Beverly Dr., #725 Beverly Hills, CA 90212 Telephone: (877) 206-4741 Facsimile: (866) 633-0228 E-mail: tfriedman@attorneysforconsumers.com sweerasuriya@attorneysforconsumers.com abacon@attorneysforconsumers.com RCI HOSPITALITY: Settles Labor Suit With Strippers for $15-Mil. --------------------------------------------------------------- Adam Klasfeld at Courthouse News Service reports that thousands of strippers represented in a class-action labor lawsuit against New York's Rick's Cabaret hope to end six years of protracted litigation by accepting a $15 million settlement. Filed in 2009, the lawsuit's lead plaintiff Sabrina Hart fought on behalf of nearly 2,300 current and former dancers who graced the Midtown Manhattan strip club's stage. U.S. District Judge Paul Engelmayer awarded the class $10.8 million late last year on three of the charges of the lawsuit, resolving minimum wage violations, unlawfully retained tips, and improper fees under state law. That partial judgment, however, did not stop the court wrangling. The club brought an interlocutory appeal to the 2nd Circuit, and the remaining claims still faced a trial. On April 1, the women's lawyer Anna Prakash asked the judge to approve a settlement between the parties. "The settlement agreement was reached on the eve of trial after almost six years of hard-fought litigation, full-blown discovery with over 30 depositions, including expert discovery, abundant motion practice including summary judgment on liability and damages, class certification, and pre-trial preparation including seventeen motions in limine," Prakash noted in a memorandum. A four-week trial had been slated to start on April 27. "Given the itinerancy and general makeup of the class," there are "fraud-protection measures" in place to prevent the wrong people from claiming their checks, Prakash wrote. Her co-counsel Michelle Drake, also from the firm Nichols Kaster, said in a statement that she was "pleased to have reached a fair and reasonable resolution of this matter." "This litigation has involved a number of hotly contested legal battles," she noted. "Had we not settled, trial and appeal would have been next and any recovery would have been even further delayed. The settlement will provide substantial and immediate relief to the dancers and we believe it is in the best interest of the class." A lawyer for Rick's Cabaret did not immediately respond to a request for comment. The Plaintiffs are represented by: Michele R. Fisher, Esq. Steven Andrew Smith, Esq. E. Michelle Drake, Esq. Anna P. Prakash, Esq. John G. Albanese, Esq. NICHOLS KASTER, PLLP 4600 IDS Center, 80 South 8th Street Minneapolis, MN 55402 Telephone: (612) 256-3200 Toll-Free: (877) 448-0492 Facsimile: (612) 338-4878 E-mail: fisher@nka.com smith@nka.com drake@nka.com aprakash@nka.com jalbanese@nka.com The case is Sabrina Hart and Reka Furedi, on behalf of themselves and all others similarly situated, and the New York Rule 23 Class v. RCI Hospitality Holdings, Inc. f/k/a Ricks's Cabaret International, Inc., RCI Entertainment (New York) Inc., Peregrine Enterprises, Inc., Case No. 1:09-cv-03043-PAE-RLE, in the U.S. District Court for the Southern District of New York. REALOGY HOLDINGS: "Bararsani" Case in Discovery Phase ----------------------------------------------------- Realogy Holdings Corp. and Realogy Group LLC said in their Form 10-K Report filed with the Securities and Exchange Commission on February 26, 2015, for the fiscal year ended December 31, 2014, that the case Bararsani v. Coldwell Banker Residential Brokerage Company is now in the discovery phase. On November 15, 2012, plaintiff Ali Bararsani filed a putative class action complaint in Los Angeles Superior Court, California, against Coldwell Banker Residential Brokerage Company ("CBRBC") alleging that CBRBC had misclassified current and former affiliated sales associates as independent contractors when they were actually employees. The complaint, as amended, further alleges that, because of the misclassification, CBRBC has violated several sections of the California Labor Code including one for failing to reimburse the plaintiff and purported class for business related expenses and a second for failing to keep proper records. The amended complaint also asserts an Unfair Business Practices claim for misclassifying the sales associates. The Plaintiff, on behalf of a purported class, seeks the benefit of the California labor laws for expenses and other sums, plus asserted penalties, attorneys' fees and interest. The Company believes that CBRBC has properly classified the sales associates as independent contractors and that it has and continues to operate in a manner consistent with applicable law, and longstanding, widespread industry practice for many decades. On July 31, 2013, CBRBC filed a Demurrer with the Court seeking to dismiss the amended complaint. The Demurrer asserted that the claims raised by the plaintiff were without basis under California law because the California Business and Professions Code sets out the applicable three-part test for classification of real estate sales associates as independent contractors and all elements of the test have been satisfied by CBRBC and the affiliated sales associates. Plaintiff filed an Opposition on August 12, 2013 and a hearing was held on August 28, 2013. The Court denied the Demurrer and stated that it would look to the more complex multi- factor common law test to determine whether the plaintiff was misclassified. CBRBC filed a Petition for a Writ of Mandate with the California Court of Appeal seeking its discretionary review of that decision on September 30, 2013 and on November 8, 2013, the Court of Appeal denied the Petition. On March 25, 2014, the Court denied plaintiff's ex parte application which sought, in part, to invalidate, for purposes of this litigation, arbitration clauses with class action waivers in independent contractor agreements executed by some putative members of the class following the commencement of the litigation. Plaintiffs filed a Writ of Mandate with the California Court of Appeal seeking its discretionary review of the Court's decision to deny plaintiff's application. On June 2, 2014, the Court of Appeal summarily denied the petition. The case is now in the discovery phase. The next case status conference was scheduled for March 2, 2015. "The case raises significant classification claims that potentially apply to the real estate industry in general and that have not been previously challenged in any significant manner in California or many other jurisdictions. As with all class action litigation, the case is inherently complex and subject to many uncertainties. We believe that CBRBC has properly classified the current and former affiliated sales associates. There can be no assurance, however, that if the action continues and a large class is subsequently certified, the plaintiffs will not seek a substantial damage award, penalties and other remedies. Given the stage of this case, the novel claims and issues presented and the great uncertainties regarding which sales associates, if any, may be part of a class, if one is certified, we cannot estimate a range of reasonably potential losses for this litigation. The Company believes it has complied with all applicable laws and regulations and will vigorously defend this action," the Company said. RELIABLE RUNNERS: Faces "Walker" Suit Over Failure to Pay OT ------------------------------------------------------------ William Walker and David Chovanek, on behalf of themselves and all others similarly situated v. Reliable Runners Courier Service, Inc., Case No. 1:15-cv-00760-PAG (N.D. Ohio, April 19, 2015), is brought against the Defendants for failure to pay overtime compensation in violation of the Fair Labor Standard Act. The Plaintiff is represented by: Ryan A. Winters, Esq. Joseph F. Scott, Esq. SCOTT & WINTERS LAW FIRM, LLC Ste. 1325, 815 Superior Avenue, E Cleveland, OH 44114 Telephone: (440) 498-9100 Facsimile: (216) 621-1094 E-mail: rwinters@ohiowagelawyers.com jfscld@yahoo.com - and - Thomas A. Downie, Esq. Ste. 104 46 Chagrin Falls Plaza Chagrin Falls, OH 44022 Telephone: (440) 973-9000 Facsimile: (440) 210-4610 E-mail: tom@chagrinlaw.com SABRA DIPPING: Recalls Classic Hummus Products Due to Listeria -------------------------------------------------------------- Sabra Dipping Co., LLC announced that it is voluntarily recalling approximately 30,000 cases of its Classic Hummus due to possible contamination with Listeria monocytogenes. This measure is limited to five SKUs of Classic Hummus sold nationwide. To date, no other Sabra product is affected by this recall. Listeria monocytogenes is an organism, which can cause serious and sometimes fatal infections in young children, frail or elderly people, and others with weakened immune systems. Although healthy individuals may suffer only short-term symptoms such as high fever, severe headache, stiffness, nausea, abdominal pain and diarrhea, Listeria infection can cause miscarriages and stillbirths among pregnant women. To date, there have been no reports indicating that these products have caused any illness. The products being recalled are listed below and were distributed to retail outlets, including food service accounts and supermarkets, in the U.S. Consumers can find code and use by dates on the top of each package. UPC/SKU Item Use by Dates Affected Areas ------- ---- ------------ -------------- 040822011143/ Sabra Classic 3 059 Best US 300067 Hummus 10 oz Before/Meilleur Avant 2015 May 11 3 060 Best Before/ Meilleur Avant 2015 May 15 040822014687/ Sabra Classic 3 059 Best US 300074 Hummus 30 oz Before/Meilleur Avant 2015 May 11 040822342049/ Sabra Classic 3 059 Best US 301216 Hummus without Before/Meilleur Garnish 32oz Avant 2015 May 11 040822017497/ Sabra Classic 3 058 Best 301290 Hummus 17oz Six Before/Meilleur US Pack Avant 2015 May 11 3 059 Best Before/Meilleur Avant 2015 May 11 040822342209/ Hummus Dual 3 058 Best US 301283 Pack Classic/ Before/Meilleur Garlic 23.5oz Avant 2015 May 11 The potential for contamination was discovered when a routine, random sample collected at a retail location on March 30th, 2015 by the Michigan Department of Agriculture and Rural Development, tested positive for Listeria monocytogenes. Consumers who have purchased any of these products are urged to dispose of or return it to the place of purchase for a full refund. Consumers with any questions may call toll free 1-888-957- 2272, Monday - Friday 9:00AM to 4:30PM Central Time. Pictures of the Recalled Products available at: http://www.fda.gov/Safety/Recalls/ucm442098.htm SKIPPY'S GYROS: Faces "Marquez" Suit Over Failure to Pay Overtime ----------------------------------------------------------------- Jose Marquez, individually and on behalf of other employees similarly situated v. Skippy's Gyros III, Inc. and Gus Volkos, Case No. 1:15-cv-03422 (N.D. Ill., April 17, 2015), is brought against the Defendants for failure to pay overtime wages for hours worked in excess of 40 in a week. The Defendants own and operate a restaurant in DuPage County, Illinois. The Plaintiff is represented by: David Erik Stevens, Esq. CONSUMER LAW GROUP, LLC 6232 N. Pulaski, Suite 200 Chicago, IL 60646 Telephone: (312) 307-0766 E-mail: Dave@StevensLawLLC.com SMS MARKETING: Sued in N.D. Cal. for Making Unsolicited Calls ------------------------------------------------------------- Joyce Cabalona, individually and on behalf of all others Similarly situated v. SMS Marketing Services, Inc. d/b/a Educationahead.Com, Case No. 3:15-cv-01757-EDL (N.D. Cal., April 17, 2015), seeks to put an end on the Defendant's practice of making calls on the class members' cellular telephone for non- emergency purpose using an automatic dialing system. SMS Marketing Services, Inc. is a marketing solutions company headquartered at 777 Terrace Avenue, Suite 401, Hasbrouck Heights, NJ 07604. The Plaintiff is represented by: Abbas Kazerounian, Esq. KAZEROUNI LAW GROUP, APC 245 Fischer Avenue, Unit D1 Costa Mesa, CA 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 E-mail: ak@kazlg.com - and - Joshua B. Swigart, Esq. HYDE & SWIGART 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108-3551 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 E-mail: josh@westcoastlitigation.com SPANSION INC: Inks MOU in Class Action Over Cypress Deal -------------------------------------------------------- Spansion Inc. said in its Form 8-K Current Report filed with the Securities and Exchange Commission on February 26, 2015, that on December 1, 2014, Spansion Inc., a Delaware corporation ("Spansion"), Cypress Semiconductor Corporation, a Delaware corporation ("Cypress"), and Mustang Acquisition Corporation, a Delaware corporation and a wholly owned subsidiary of Cypress ("Merger Sub"), entered into an Agreement and Plan of Merger and Reorganization (the "Merger Agreement"), pursuant to which Merger Sub will merge with and into Spansion (the "Merger"), with Spansion surviving the Merger as a wholly owned subsidiary of Cypress. On February 6, 2015 Cypress filed, and on February 10, 2015 Spansion filed, with the Securities and Exchange Commission (the "SEC") a definitive joint proxy statement/prospectus (the "Definitive Joint Proxy Statement/Prospectus") in connection with the Merger, which was mailed to the stockholders of each of Spansion and Cypress on or about February 10, 2015. Spansion is making this filing in connection with the execution of a memorandum of understanding, effective February 20, 2015, (the "MOU") regarding the settlement of certain litigation arising out of the announcement of the Merger Agreement. As disclosed in, among other places, the Definitive Joint Proxy Statement/Prospectus, Walter Jeter filed a class action complaint on December 17, 2014 in the Superior Court of the State of California, County of Santa Clara (No. 114CV274635) against Spansion Inc., its directors, Cypress Semiconductor Corporation, and Mustang Acquisition Corporation ("Jeter Action"). On December 24, 2014, Shiva Y. Stein filed a similar class action complaint in the Superior Court of the State of California, County of Santa Clara (No. 114CV274924) against the same defendants ("Stein Action"). On January 12, 2015, each of the plaintiffs filed substantially identical amended complaints. Both cases allege that the proposed merger was the result of a flawed process and provides insufficient value to Spansion's shareholders, and further allege that the disclosures in the Form S-4 Registration Statement filed with the Securities and Exchange Commission on December 19, 2014 are materially incomplete and misleading. Plaintiffs in both cases assert claims against Spansion's directors for a breach of fiduciary duty and, as to Cypress and Merger Sub, aiding and abetting a breach of fiduciary duty. The plaintiffs seek to enjoin the Merger Agreement between Spansion and Cypress which was announced on December 1, 2014, or alternatively, to rescind the transaction in the event the defendants are able to consummate it, along with damages, attorney fees and costs. On January 30, 2015, the court consolidated the two lawsuits into a single action, captioned Walter Jeter v. Spansion Inc., et al., Case No. 1-14-CV-274635 (the "Consolidated Action"). Pursuant to the MOU, Spansion has agreed to make the disclosures concerning the Merger. The MOU will be replaced by a Stipulation of Settlement to be negotiated and prepared by the parties, and submitted for court approval. The Stipulation of Settlement will include terms proposing the certification of a conditional non-opt out class for settlement purposes only. In addition, the MOU provides that, subject to approval by the court after notice to the members of the Class (the "Class Members"), the parties agree to the entry of a Final Order and Judgment in the Consolidated Action that shall provide that the Jeter Action, the Stein Action and the Consolidated Action are dismissed with prejudice and that all claims that the Class Members may possess with regard to the Merger will be released. In connection with the settlement, the Plaintiff's counsel has expressed its intention to seek an award by the court of attorneys' fees and expenses. The amount of the award to the Plaintiff's counsel will ultimately be determined by the court. This payment will not affect the amount of merger consideration to be received by any Spansion stockholder in the Merger. There can be no assurance that the parties will ultimately enter into a definitive settlement agreement or that the court will approve the settlement. The MOU and the settlement are contingent upon conditional class certification for the purpose of the settlement and final approval of the settlement by the court. The Defendants each have denied, and continue to deny, that they have committed or aided and abetted in the commission of any violation of law or breaches of duty or engaged in any of the alleged wrongful acts and the Defendants expressly maintain that they diligently and fully complied with their fiduciary, disclosure and other legal duties. Nothing in the MOU, any settlement agreement or any public filing, including the Current Report on Form 8-K ("Current Report"), is or shall be deemed to be an admission of the legal necessity of filing or the materiality under applicable laws of any of the additional information or in any public filing associated with the proposed settlement of the Jeter, Stein and Consolidated Actions. SS&C TECHNOLOGIES: Millennium Class Action in NY Has Concluded -------------------------------------------------------------- SS&C Technologies Holdings, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 26, 2015, for the fiscal year ended December 31, 2014, that several actions (the "Millennium Actions") have been filed in various jurisdictions against the Company's subsidiary, GlobeOp Financial Services S.A. ("GlobeOp"), alleging claims and damages with respect to a valuation agent services agreement performed by GlobeOp for the Millennium Global Emerging Credit Fund, L.P. and Millennium Global Emerging Credit Fund Ltd. (the "Millennium Funds"). These actions include (i) a putative class action in the U.S. District Court for the Southern District of New York (the "U.S. Class Action") on behalf of a putative class of investors in the Millennium Funds filed in May 2012 asserting claims of $844 million (the alleged aggregate value of assets under management by the Millennium Funds at the funds' peak valuation); (ii) an arbitration proceeding in the United Kingdom (the "UK Arbitration") on behalf of Millennium Global Investments Ltd. and Millennium Asset Management Ltd., the Millennium Funds' investment manager and administrative manager, respectively (together, the "Millennium Managers"), which commenced with a request for arbitration in July 2011, seeking an indemnity of $26.5 million for sums paid by way of settlement to the Millennium Funds in a separate arbitration to which GlobeOp was not a party, as well as an indemnity for any losses that may be incurred by the Millennium Managers in the U.S. Class Action; and (iii) a claim in the same arbitration proceeding by the liquidators on behalf of the Millennium Global Emerging Credit Master Fund Ltd. (the "Master Fund") against GlobeOp for damages alleged to be in excess of $160 million. These actions allege that GlobeOp breached its contractual obligations and/or negligently breached a duty of care in the performance of services for the Millennium Fund and that, inter alia, GlobeOp should have discovered and reported a fraudulent scheme perpetrated by the portfolio manager employed by the investment manager. The U.S. Class Action also asserts claims against SS&C identical to the claims against GlobeOp in that action. In the arbitration, GlobeOp has asserted counterclaims against both the Millennium Managers and the Master Fund for indemnity, including in respect of the U.S. Class Action. Hearings in the UK Arbitration were conducted in London in July and August 2013, September 2014 and December 2014. GlobeOp has secured insurance coverage that provides reimbursement of various litigation costs up to pre-determined limits. Since 2012, GlobeOp has been reimbursed for litigation costs under the applicable insurance policy. In January 2014, GlobeOp, SS&C, the Millennium Managers and the plaintiff in the U.S. Class Action entered into a settlement agreement resolving all disputes and claims between and among the parties (including a separate mutual release between and among GlobeOp and SS&C, on the one hand, and the Millennium Managers on the other that covers claims asserted in the UK Arbitration). The settlement agreement was approved by the United States District Court for the Southern District of New York on July 7, 2014 and consummated in August 2014. Accordingly, the U.S. Class Action matter has been dismissed with prejudice and is now concluded. GlobeOp's insurers funded the entirety of the settlement amount contemplated to be contributed by GlobeOp. The resolution of the U.S. Class Action does not affect the claims, counterclaims and/or defenses as between GlobeOp and the Master Fund that have been asserted in the UK Arbitration. The Company cannot predict the outcome of the UK Arbitration. The Company believes that it has strong defenses and is vigorously contesting the UK Arbitration (as described above, the U.S. Class Action has been concluded). The amount of any potential loss, if any at all, cannot be reasonably estimated at this time. In addition to the foregoing legal proceedings, from time to time, the Company is subject to other legal proceedings and claims. In the opinion of the Company's management, the Company is not involved in any other such litigation or proceedings with third parties that management believes would have a material adverse effect on the Company or its business. ST. JUDE MEDICAL: Preliminary Approval Hearing Held in Settlement ----------------------------------------------------------------- St. Jude Medical, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 26, 2015, for the fiscal year ended January 3, 2015, that Plaintiffs have scheduled a hearing for March 12, 2015 seeking the Court's preliminary approval of the settlement in the March 2010 securities class action litigation. In March 2010, a securities lawsuit seeking class action status was filed in federal district court in Minnesota against the Company and certain officers (collectively, the defendants) on behalf of purchasers of St. Jude Medical common stock between April 22, 2009 and October 6, 2009. The lawsuit relates to the Company's earnings announcements for the first, second and third quarters of 2009, as well as a preliminary earnings release dated October 6, 2009. The complaint, which seeks unspecified damages and other relief as well as attorneys' fees, alleges that the defendants failed to disclose that it was experiencing a slowdown in demand for its products and was not receiving anticipated orders for cardiac rhythm management devices. Class members allege that the defendant's failure to disclose the above information resulted in the class purchasing St. Jude Medical stock at an artificially inflated price. In December 2011, the Court issued a decision denying a motion to dismiss filed by the defendants in October 2010. In October 2012, the Court granted plaintiffs' motion to certify the case as a class action and the discovery phase of the case closed in September 2013. On October 15, 2013, the defendants filed a motion for summary judgment. A hearing concerning that motion took place with the Court in January 2014 and the Court issued an order on August 11, 2014 granting in part and denying in part defendants' motion for summary judgment. On November 7, 2014, the defendants filed a motion for leave to proceed with a motion to decertify the class, and on December 8, 2014, the Court denied that motion. Based on filings they have made, the class members claimed damages of approximately $475 million. On February 18, 2015, the parties entered into a written settlement agreement resolving the case, pending notification to class members and subject to court approval. Under the settlement, the Company agreed to make a payment of $50 million to resolve all of the class claims and recorded a charge of that amount during the fourth quarter of 2014. Plaintiffs' have scheduled a hearing for March 12, 2015 seeking the Court's preliminary approval of the settlement. Concurrent with recording the loss, the Company also recognized probable insurance recoveries of $30 million. The Company intends to pursue collection of additional insurance recoveries from certain of its insurance carriers. ST. JUDE MEDICAL: To File Response to Class Certification Bid ------------------------------------------------------------- St. Jude Medical, Inc. will be filing a response to plaintiffs' motion for class certification and a hearing before the Court on the plaintiffs' class certification is expected in the third quarter of 2015 in the December 2012 Securities Litigation, St. Jude said in its Form 10-K Report filed with the Securities and Exchange Commission on February 26, 2015, for the fiscal year ended January 3, 2015. On December 7, 2012, a putative securities class action lawsuit was filed in federal district court in Minnesota against the Company and an officer (collectively, the defendants) for alleged violations of the federal securities laws, on behalf of all purchasers of the publicly traded securities of the defendants between October 17, 2012 and November 20, 2012. The complaint, which sought unspecified damages and other relief as well as attorneys' fees, challenges the Company's disclosures concerning its high voltage cardiac rhythm lead products during the purported class period. On December 10, 2012, a second putative securities class action lawsuit was filed in federal district court in Minnesota against the Company and certain officers for alleged violations of the federal securities laws, on behalf of all purchasers of the publicly traded securities of the Company between October 19, 2011 and November 20, 2012. The second complaint alleged similar claims and sought similar relief. In March 2013, the Court consolidated the two cases and appointed a lead counsel and lead plaintiff. A consolidated amended complaint was served and filed in June 2013, alleging false or misleading representations made during the class period extending from February 5, 2010 through November 7, 2012. In September 2013, the defendants filed a motion to dismiss the consolidated amended complaint. On March 10, 2014, the Court ruled on the motion to dismiss, denying the motion in part and granting the motion in part. On October 7, 2014, the lead plaintiff filed a second amended complaint. Like the original consolidated amended complaint, the plaintiffs did not in the second amended complaint assert any specific amount of compensation that they seek. The plaintiffs' filed their motion for class certification on January 15, 2015. The Company will be filing a response and a hearing before the Court on the plaintiffs' class certification is expected in the third quarter of 2015. The Company intends to continue to vigorously defend against the claims asserted in this matter. STERLING JEWELERS: Class Arbitration Allows Disparate Impact ------------------------------------------------------------ Samuel Estreicher and Kristina A. Yost, writing for Law.com, report that in March 2008, claimants brought a class arbitration proceeding under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e, et seq. and the Equal Pay Act, 29 U.S.C. Sec. 206(d), alleging that women working in Sterling Jewelers' retail stores across the country were systematically denied the same level of pay and promotion opportunities as their male counterparts. At the time Laryssa Jock and others initiated the class arbitration, they also filed a lawsuit in federal court against Sterling. Claimants had entered into alternative dispute resolution agreements with Sterling in which they agreed to a three-step alternative dispute resolution program, called "RESOLVE," for raising employment disputes. The third step in the RESOLVE agreements provided for binding arbitration of employment disputes, with the arbitration to be conducted by the American Arbitration Association (AAA) and in accordance with AAA rules. Ultimately, both claimants and Sterling agreed that the RESOLVE arbitration agreements between them were enforceable, but disagreed over whether the agreements permitted the arbitrator to decide certain threshold questions, including whether class arbitration was available under the agreements. In July 2008, a district court issued an order compelling arbitration on the ground that, under the clear language of the agreements, such questions were for the arbitrator to decide. Kathleen A. Roberts, an arbitrator with JAMS and former U.S. magistrate judge, was designated as the arbitrator. She subsequently ruled that the arbitration agreements did not preclude class arbitration, a ruling that was ultimately upheld (over Judge Ralph Winter's strong dissent) by the U.S. Court of Appeals for the Second Circuit. The panel majority distinguished Jock from Stolt-Nielsen v. AnimalFeeds Int'l Corp., which had found that where an arbitration agreement is silent as to the availability of class arbitration, an arbitrator could not find that the agreement permitted class arbitration. Specifically, the appeals court determined that while in Stolt-Nielsen, the parties had agreed that the agreement was silent as to class arbitration, in Jock, they had not, but had submitted the issue to the arbitrator and were bound by her finding of authority. In the proceeding, the claimants sought to represent a class of approximately 44,000 women who worked in Sterling's retail stores. After the parties completed discovery and exchanged expert reports, claimants moved for certification of a class pursuant to American Arbitration Association (AAA) Supplementary Rule for Class Arbitration 4 (Supplementary Rule), which allows certification of a classwide arbitration proceeding if the plaintiffs meet requirements that generally mimic those set forth by Rule 23 of the Federal Rules of Civil Procedure, with a few additional requirements, including that each class member had entered into an agreement containing a similar arbitration clause. In one of the few arbitral awards to date on class certification, Arbitrator Roberts ruled that an opt-out class could be certified pursuant to AAA Supplementary Rule 4 and Federal Rule 23(b)(2) and (c)(4) for purposes of claimants' Title VII disparate impact claims, but not for their Title VII disparate treatment or Equal Pay Act claims. Claimants' Allegations The claimants alleged that Sterling's work force data showed that women were paid less and promoted less frequently than men and that the disparity could not be attributed to legitimate, non-discriminatory factors. More specifically, they claimed that Sterling based starting pay on at least one non-job-related factor -- having particular types of managerial job experience, even when applying for non-management roles -- that had an adverse impact on women, and, moreover, that subsequent raises were in the form of percentage increases to base pay, and thus magnified initial disparities in pay. Claimants further charged that Sterling's "Succession Planning" system operated to promote men both more frequently and quickly than similarly situated female employees. It was charged that Sterling did not post vacancies but considered only those candidates who had expressed interest in promotion. Claimants also pointed to evidence of inappropriate sexual conduct and stereotypes. Standards: Class Certification Claimants moved for class certification of both their disparate impact and disparate treatment claims under Title VII and the Equal Pay Act. In deciding the class certification motion, Arbitrator Roberts applied the requirements of AAA Supplementary Rule 4. Supplementary Rule 4(a) contains the requirements of numerosity, commonality, typicality and adequacy set forth by Fed. R. Civ. P. 23(a) and contains two additional requirements: (1) that "counsel selected to represent the class will fairly and adequately protect the interests of the class"; and (2) that "each class member has entered into an agreement containing an arbitration clause which is substantially similar to that signed by the class representative(s) and each of the other class members." AAA Supplementary Rule 4 does not have an analog to the issue- class provision of Federal Rule 23(c)(4). Despite the absence of an express provision, it was appropriate to apply Rule 23(c)(4) in Jock, the arbitrator determined, because Rule 4(a) provides that the arbitrator must consider "any law or agreement of the parties the arbitrator determines applies to the arbitration" and "[t]he AAA has stated that it intended its formulation of the Supplementary Rules to 'hew closely to Federal Rule 23.'"9 Certification of Title VII Claims Ms. Roberts proceeded to decide the class certification motion under the standards set forth by the Supreme Court in Wal-Mart Stores v. Dukes. In Dukes, the plaintiffs had sought certification of a class of women employed at Wal-Mart nationwide. The plaintiffs argued that local managers' discretion over pay and promotion decisions was the unlawful policy that formed the basis of their Title VII disparate impact and disparate treatment claims. The Supreme Court overturned the circuit court's approval of a nationwide class action. The majority found the certification void for lack of commonality under Federal Rule 23(b)(2). In order to establish commonality, Justice Antonin Scalia for the majority reasoned, plaintiffs' "claims must depend upon a common contention . . . capable of classwide resolution -- which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke." In an employment discrimination case seeking company- wide certification, plaintiffs must show that there is some type of discriminatory testing procedure or company-wide evaluation method or there must be "significant proof that an employer operated under a general policy of discrimination . . ." Local manager discretion on its own was not a discriminatory testing procedure or company-wide evaluation method to establish commonality, nor did plaintiffs' anecdotal evidence from 120 female employees and their expert witnesses' testimony about the company's culture and personnel practices make out a "general policy" of discrimination. In the Jock proceeding, Ms. Roberts found that as to the claimants' disparate impact claims, the numerosity, typicality, adequacy and similar arbitration clause requirements were met. Although commonality is the most difficult of the Rule 23(a)/AAA Supplementary Rule 4(a) criteria, it, too, was met. Unlike in Dukes, the claimants here had identified specific "challenged policies and procedures" that allegedly caused significant disparities, and "[c]lasswide adjudication of these questions will produce answers common to the class that are 'apt to drive the resolution of the litigation.'" Ms. Roberts determined that the lawfulness of the policies or practices of (1) using certain prior experience criteria, such as prior management experience and non-jewelry sales volume, (2) awarding merit increases as a percentage of base pay, and (3) using the Succession Planning program, whereby candidates had to express interest to be promoted, could "generate answers common to the class." On the other hand, the claimants' class-based disparate treatment showing did not satisfy the commonality requirement as articulated in Dukes. For the arbitrator, "[t]he critical element in Claimants' claim of intentional discrimination is the existence and influence of a corporate culture demeaning to women" and the "lynchpin in Claimants' proof of this element is the proposed expert testimony of Dr. Outtz," who provided testimony that Sterling's culture could lead to biased employment decisions. But the claimants' expert could not "answer the 'essential question' of what percent of the employment decisions at Sterling are determined by a gender-discriminatory corporate culture." Claimants have moved for reconsideration of the decision to deny certification of their disparate treatment claims, a motion that is still pending before the arbitrator. Equal Pay Act Claims Claimants had also requested that an opt-out class be certified to address their Equal Pay Act claims. The Equal Pay Act incorporates the enforcement provisions of Section 216(b) of the Fair Labor Standards Act, which requires that each potential plaintiff opt in to an action, rather than the opt-out mechanism provided by Federal Rule 23. Nonetheless, the claimants argued, certification of an opt-out Equal Pay Act class was appropriate given that the AAA Supplementary Rules did not expressly provide for opt-in arbitrations and the parties had incorporated the AAA rules in their agreements. Ms. Roberts rejected claimants' arguments, however, and denied the motion to certify an Equal Pay Act opt-out class, without prejudice to their ability to seek to certify an opt-in class (which they had not sought in their motion). Claimants moved to certify an opt-in class on March 6, 2015, and the motion is now being briefed. Standing Question Sterling also contended that claimants had no standing to represent putative class members who had not consented to allow the arbitrator to decide whether the arbitration agreements allowed class certification. This argument was premised on Justice Samuel Alito's concurring opinion in Oxford Health Plans v. Sutter,17 in which he maintained that "at least where absent class members have not been required to opt in, it is difficult to see how an arbitrator's decision to conduct class proceedings could bind absent class members who have not authorized the arbitrator to decide on a classwide basis which arbitration procedures are to be used." Because the absent class members had not so agreed, Alito reasoned, they could later argue that they were not bound by any unfavorable judgment, and, on the other hand, seek the benefit of a favorable judgment. Arbitrator Roberts determined that the concerns expressed by Alito were inapplicable because each of the absent class members had signed the RESOLVE arbitration agreement, which clearly incorporated the AAA rules, which in turn provide that the "arbitrator shall determine whether the applicable arbitration clause permits the arbitration to proceed on behalf of or against a class." Thus, "each of the absent class members agreed that the arbitrator would determine whether the RESOLVE arbitration agreement permits class arbitration." Sterling has filed a motion (still pending) to vacate the arbitration award, arguing that the arbitrator's decision would be subject to collateral attack by absent class members as outlined by Alito in Sutter because they had not agreed to allow the arbitrator to decide whether the agreements permitted class arbitration. Implications Despite the Second Circuit panel ruling in Jock, it is not clear under what circumstances arbitration agreements will be interpreted to allow for class arbitration, especially if they contain express class or collective action waiver provisions. The agreements in Jock did not. Nonetheless, Arbitrator Roberts' award is significant in that it is one of the first to reach the stage of deciding class certification. It may pave the way for classwide arbitration in a variety of matters brought under the AAA rules. If other arbitrators follow her lead on finding that the AAA rules allow for issue-only certification, it may be easier for plaintiffs to get certification of classes in arbitration at least as to limited issues. Depending on the outcome of Sterling's motion to vacate, other arbitrators also may follow Roberts' finding that absent class members consent to the arbitrator's authority to decide whether the agreement permits classwide arbitration by signing an agreement that incorporates the AAA rules but without spelling out whether class or collective actions are waived. TESLA MOTORS: Plaintiffs' Appeal in Class Action Still Pending -------------------------------------------------------------- Tesla Motors, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 26, 2015, for the fiscal year ended December 31, 2014, that an appeal by plaintiffs in a securities class action lawsuit is pending. In November 2013, a putative securities class action lawsuit was filed against Tesla in U.S. District Court, Northern District of California, alleging violations of, and seeking remedies pursuant to, Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5. The complaint, made claims against Tesla and its CEO, Elon Musk, sought damages and attorney's fees on the basis of allegations that, among other things, Tesla and Mr. Musk made false and/or misleading representations and omissions, including with respect to the safety of Model S. This case was brought on behalf of a putative class consisting of certain persons who purchased Tesla's securities between August 19, 2013 and November 17, 2013. On September 26, 2014, the trial court, upon the motion of Tesla and Mr. Musk, dismissed the complaint with prejudice, and indicated that a formal written order will be forthcoming. Following the trial court's decision, Tesla and Mr. Musk brought a motion for sanctions against the plaintiffs, and that motion is currently pending. The plaintiffs have also appealed from the trial court's order, and that appeal is pending, as well. TEXAS PECAN: Recall Macadamia Nuts Due to Salmonella ---------------------------------------------------- Texas Pecan Company Inc. of Dallas, Texas, is voluntarily recalling the items stated below; (refer to Table in Paragraph 3), because they have the potential to be contaminated with Salmonella, an organism which can cause serious and sometimes fatal infections in young children, frail or elderly people, and others with weakened immune systems. Healthy persons infected with Salmonella often experience fever, diarrhea (which may be bloody), nausea, vomiting and abdominal pain. In rare circumstances, infection with Salmonella can result in the organism getting into the bloodstream and producing more severe illnesses such as arterial infections (i.e., infected aneurysms), endocarditis and arthritis. The recalled packaged Macadamia Nuts and Gift Tins: The Executive, Junior Executive, Sweet-N-Salty and Mini Sweet-N-Salty were distributed nationwide in our retail store and through mail orders. The product comes in an 8 ounce and 16 ounce, clear plastic bags and in our gift tins identified by the name of The Executive, Junior Executive, Sweet-N-Salty and Mini Sweet-n-Salty, sold in the months of November and December 2014, with a pack date of 14320 through 14365, located on the bottom left hand corner of the label. UPC PRODUCT NAME PACK SIZE PACK DATE --- ------------ --------- ---------- 031 MACADAMIA, RAW WHOLE 16 OUNCE 14320 THRU 14365 032 MACADAMIA, RAW WHOLE 8 OUNCE 14320 THRU 14365 033 MACADAMIA, WHOLE *(R/S) 16 OUNCE 14320 THRU 14365 034 MACADAMIA, WHOLE *(R/S) 8 OUNCE 14320 THRU 14365 321-54 THE EXECUTIVE GIFT TIN 1 SECTION 14320 THRU 14365 OF 5 POUND TIN 320-34 JUNIOR EXECUTIVE TIN 1 SECTION 14320 THRU 14365 OF 3 POUND TIN 337-56 SWEET-N-SALTY TIN 1 SECTION 14320 THRU 14365 OF 5 POUND TIN 14320 MINI SWEET-N-SALTY TIN 1 SECTION 14320 THRU 14365 THRU OF 2 POUND 14365 TIN *NOTE: R/S means ROASTED AND SALTED No illnesses have been reported to date in connection with this problem, but we voluntarily ask that you discontinue use of the product, stated above, per date of this notification. The potential for contamination was noted after some routine sampling tests by the FDA revealed the presence of Salmonella in the Macadamia Nuts received from our supplier in November and December 2014. Production of the product has been suspended while the FDA and our supplier continue their investigation as to the source of the problem. Consumers who have purchased 8 ounce and 16 ounce bags of Macadamia Nuts, Executive, Junior Executive, Sweet-N-Salty and Mini Sweet-N-Salty are urged to return them to the place of purchase for a full refund. Consumers with questions may contact the company at 972-241-7878, Monday thru Friday between the hours of 8:30am to 5:00pm central time. Pictures of the Recalled Products available at: http://www.fda.gov/Safety/Recalls/ucm442043.htm TRANSOCEAN LTD: Plaintiffs File Opening Brief in Appeal ------------------------------------------------------- Transocean Ltd. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 26, 2015, for the fiscal year ended December 31, 2014, that Plaintiffs in the Federal securities class action have filed an opening brief to the U.S. Court of Appeals for the Second Circuit. "On September 30, 2010, a proposed federal securities class action was filed in the U.S. District Court for the Southern District of New York, naming us, former chief executive officers of Transocean Ltd. and one of our acquired companies as defendants," the Company said. "In the action, a former shareholder of the acquired company alleged that the joint proxy statement relating to our shareholder meeting in connection with the merger with the acquired company violated Section 14(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), Rule 14a-9 promulgated thereunder and Section 20(a) of the Exchange Act. The plaintiff claimed that the acquired company's shareholders received inadequate consideration for their shares as a result of the alleged violations and sought compensatory and rescissory damages and attorneys' fees on behalf of the plaintiff and the proposed class members. In connection with this action, we are obligated to pay the defense fees and costs for the individual defendants, which may be covered by our directors' and officers' liability insurance, subject to a deductible. On March 11, 2014, the District Court for the Southern District of New York dismissed the claims as time-barred. Plaintiffs appealed to the U.S. Court of Appeals for the Second Circuit ("Second Circuit") and filed an opening brief on December 19, 2014." TRINITY INFRASTRUCTURES: Homeowners Fight LBJ Highway Project ------------------------------------------------------------- David Lee, writing for Courthouse News Service, reports that homeowners and businesses along a massive LBJ Express highway project in North Dallas claim in a class action that the enormous excavations are damaging their foundations. Lead plaintiff Maria Cazares and 20 other homeowners sued 10 construction companies on March 30 in Dallas County Court. The plaintiffs live along the 13-mile stretch of Interstate 635 that is undergoing a five-year facelift. When completed, the LBJ Express will contain eight widened main highway lanes and six subsurface toll lanes, according to the Texas Department of Transportation, which is not party to the lawsuit. "The plaintiffs and class members have endured loss of use and enjoyment of their properties, nuisance, trespass, loss of market value, loss of lateral support, and destruction to their homes and businesses from defendants' construction activities from deep excavation and ground vibrations affecting the soil that supports their structures and/or by vibrating the structures," the 17-page complaint states. "Defendants' construction activities such as pile driving, boring, blasting, heavy traffic loads, deep excavation, and/or dewatering produced differential soil settlement and strong levels of vibration which caused damage to the plaintiffs' and the class members' structures and improvements -- in addition to the loss of lateral support from deep excavation through the class area and bordering many of the Plaintiffs and class members' homes." They claim the project was defectively designed, so that the defendants "are strictly liable for the losses and damages caused by their activities -- even if they exercised the utmost care to prevent the harm." Named as defendants are Trinity Infrastructures, Ferrovial Agroman U.S. Corp. and four Ferrovial subsidiaries, Webber LLC; Archer Western Contractors, Craig Olden Inc. and Texas Shafts Inc. LBJ Express and Trinity Infrastructure officials did not immediately respond to a request for comment April 2 evening. The plaintiffs seek actual and punitive damages for negligence, gross negligence, breach of contract, nuisance, trespass and water code violations. The Plaintiffs are represented by: R. Christopher Cowan, Esq. THE COWAN LAW FIRM One Meadows Building 5005 Greenville Avenue, Suite 200 Dallas, TX 75206 Telephone: (214) 826-1900 TURN INC: Sued for Using Secret Zombie Cookies in Mobile Devices ---------------------------------------------------------------- An online ad company used secret "zombie cookies" to track mobile device users' activities, a class action claims in California Federal Court, reports Arvin Temkar, writing for Courthouse News Service. Lead plaintiff Anthony Henson sued Turn Inc. on April 1, accusing it of turning Verizon customers' mobile devices into "tracking beacons" that monitor user behavior. Advertisers use bits of data called cookies to gather web information that could be used for personal targeted advertising. Henson claims that Turn's "zombie cookies" evaded detection and could not be deleted. Even if a person deleted Turn's cookie, the company has a process that will "respawn" the cookie, Henson says. "Turn's act of surreptitiously tracking people against their wishes, and of thwarting industry-standard consumer safeguards of privacy, is unconscionable," the complaint states. Turn stopped using zombie cookies after a ProPublica report on it in January. "It is our absolute desire to honor people's choices," a Turn spokesman told ProPublica. Henson seeks class certification, restitution and damages for trespass to chattels and business law violation. He also wants Turn ordered to provide "reasonable notice and choice" to users about its data collection practices. The Plaintiff is represented by: Michael W. Sobol, Esq. LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA 94111 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 E-mail: msobol@lchb.com UBER TECHNOLOGIES: Has Sent Unsolicited Text Messages, Suit Says ---------------------------------------------------------------- Asfike Kolloukian, on behalf of herself and those similarly situated v. Uber Technologies, Inc., Case No. 2:15-cv-02856 (C.D. Cal., April 17, 2015), arises out of the Defendants practice of sending numerous unsolicited text messages to the class members' cellular telephone. Uber Technologies, Inc. is a provider of transportation services which connects passengers to drivers via a cellular telephone application. The Plaintiff is represented by: Andre E. Jardini, Esq. K.L. Myles, Bar No. 243272 KNAPP, PETERSEN & CLARKE 550 North Brand Boulevard, Suite 1500 Glendale, CA 91203-1922 Telephone: (818) 547-5000 Facsimile: (818) 547-5329 E-mail: aej@kpclegal.com klm@kpclegal.com - and - Joseph S. Farzam, Esq. JOSEPH FARZAM LAWFIRM 11766 Wilshire Blvd, Suite 280 Los Angeles, California 90025 Telephone: (310) 226-6890 Facsimile: (310) 226-6891 E-mail: farzam@lawyer.com UBER TECHNOLOGIES: Retains Gibson as New Counsel as Trial Looms --------------------------------------------------------------- Marisa Kendall, writing for The Recorder, reports that Uber Technologies Inc. has retained new counsel in its fight over whether the company's drivers are employees or independent contractors. Lawyers with Gibson, Dunn & Crutcher have replaced Uber's prior team from Morgan, Lewis & Bockius, according to an April 13 filing in the Northern District of California. The swap comes a month after Uber lost its bid for summary judgment before U.S. District Judge Edward Chen. Plaintiffs argue Uber denied drivers proper wages and reimbursements for driving expenses by misclassifying them as contractors. Shannon Liss-Riordan of Boston-based firm Licthen & Liss-Riordan represents the plaintiffs. Uber has argued it is simply an app that matches independent drivers and customers in need of a ride -- the drivers don't work for Uber. Uber's new legal team includes Gibson Dunn partners Joshua Lipshutz -- jlipshutz@gibsondunn.com -- in San Francisco, and Theodore Boutrous Jr., Debra Wong Yang -- dwongyang@gibsondunn.com -- Marcellus McRae -- mmcrae@gibsondunn.com -- and Theane Evangelis in Los Angeles. Gibson Dunn also represents Uber in a case brought by a Delhi woman who says she was raped by an Uber driver while using the app. The plaintiff sued Uber for negligence and fraud in the Northern District of California. Uber, a frequent litigation target, has amassed a long and diverse list of outside counsel. Littler Mendelson is defending Uber against allegations that the company discriminated against blind passengers, Irell & Manella and Clarence Dyer & Cohen are fighting two sets of claims targeting Uber's driver background checks, and Fenwick & West represents Uber in a suit challenging the company's $4 surcharge for some trips to and from San Francisco International Airport. UNIVERSAL HEALTH: Posts $27.1MM After-Tax Charge From Accord ------------------------------------------------------------ Universal Health Services, Inc. said in an exhibit to its Form 8-K Current Report filed with the Securities and Exchange Commission on February 26, 2015, that as reflected on the Supplemental Schedule, included in the Company's reported results during the year ended December 31, 2014, "was a net aggregate unfavorable after-tax impact of approximately $36.4 million, or $.36 per diluted share, related to: * an after-tax charge of $27.1 million ($43.2 million pre-tax), or $.27 per diluted share, incurred in connection with the previously disclosed $65 million settlement of the Garden City Employees' Retirement System v. Psychiatric Solutions, Inc. ("Garden City"). This matter was a shareholder class action lawsuit filed in 2009 against Psychiatric Solutions, Inc. ("PSI") and certain of its former officers alleging their violations of federal securities laws and we assumed the defense and liability of this matter as a result of our acquisition of PSI in 2010. This charge is net of approximately $17 million of commercial insurance recoveries that we were entitled to and a previously recorded estimated reserve." WAL-MART STORES: Court Refuses to Junk Suit by Assistant Managers ----------------------------------------------------------------- A federal judge in Pennsylvania refused to dismiss a labor class action against Walmart claiming the retail giant doesn't pay its assistant managers overtime for working over 40 hours per week, reports Jane Casella at Courthouse News Service. The case involves a pair of putative class actions -- now consolidated -- in the Western District of Pennsylvania in which the now-former assistant managers are seeking to recover overtime pay under federal and state laws. Walmart moved to dismiss the action, arguing that the plaintiffs failed to plead that all assistant managers across Pennsylvania work more than 40 hours per week and thus entitled to overtime pay. But U.S. District Judge Mark Hornak said in a memorandum opinion issued March 31 that "even a cursory examination of the complaint reveals that the plaintiffs more than plead a plausible claim for relief" in their second amended complaint. "They plead with great detail their personal experiences while working at Walmart, that the work they did was generally representative of the work of assistant managers, that such work was not exempt from the overtime provision of the Pennsylvania Minimum Wage Act and that other assistant managers across Pennsylvania were in the same situation," Hornak wrote. The judge rejected Walmart's argument that the plaintiffs can't possibly know the working situations of the more than 1,000 assistant managers in Pennsylvania. "That is not what the second amended complaint says," Hornak wrote. "The complaint pleads that the plaintiffs attended a number of training and other business meetings of and for Walmart assistant managers (including them), and it appeared plain as day (to them) that there was a highly integrated, systemic approach to store operations as it affected the work of assistant managers such that it was not only plausible but likely that a single system of work assignments to them and their peers was in force." The plaintiffs also showed that Walmart's "comprehensive system" ensured that assistant managers were scheduled, assigned and paid in the same ways, the judge added -- noting that at this stage in the case he has to take the pleadings as true. "Perhaps, when the issue arrives at the decision point as to whether these cases can proceed to disposition as class or collective actions, or on the merits of the plaintiffs' claims and the defendant's defenses, the defendant will prevail," Hornak wrote. "At this point, however, that is not the question to be addressed. Now, the issue is whether the allegations of the second amended complaint, if true, are enough to get to the next step, and past a motion to dismiss. In the court's estimation, they are." The judge also extended a no-contact order forbidding lawyers on both sides from talking to current assistant managers, after Walmart's lawyers claimed they viewed them as clients. "If so, it would appear to the court that this could raise the specter of the disqualification of all counsel for Walmart in this action," Hornak wrote, suggesting that Walmart and its attorneys may eventually find their "prior observations about such matters were a bit extravagant" after some reflection on the prospect of being disqualified. The cases are Andrew Swank v. Wal-Mart Stores, Inc., Case No. 2:13-cv-01185-MRH, and James Paolicelli v. Wal-Mart Stores, Inc., Case No. 2:14-cv-00267, in the U.S. District Court for the Western District of Pennsylvania. WEBPRESENCE INC: Has Made Unsolicited Calls, "Blotzer" Suit Says ---------------------------------------------------------------- Casey Blotzer, individually and on behalf of all others similarly situated v. Webpresence, Inc. d/b/a Places Profile, Case No. 8:15- cv-00609 (C.D. Cal., April 17, 2015), seeks to put an end on the Defendant's practice of contacting the class members' cellular telephone in an attempt to solicit Plaintiff in using Defendant's services using an automatic telephone dialing system. Webpresence, Inc. is in the business of optimizing and maximizing the web presence for companies who seek services. The Plaintiff is represented by: Todd M. Friedman, Esq. Suren N. Weerasuriya, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 324 S. Beverly Dr., #725 Beverly Hills, CA 90212 Telephone: (877) 206-4741 Facsimile: (866) 633-0228 E-mail: tfriedman@attorneysforconsumers.com sweerasuriya@attorneysforconsumers.com abacon@attorneysforconsumers.com WEST EAST: "Mariscal" Suit Seeks to Recover Unpaid Overtime Wages ----------------------------------------------------------------- Javier Francisco Garcia Mariscal, on behalf of himself and others similarly situated v. West East Food Corp. d/b/a associated Supermarket, Abdullah Obeidat, and Yasin Abdelaziz, Case No. 1:15- cv-03009 (S.D.N.Y., April 17, 2015), seeks to recover unpaid overtime compensation, liquidated damages, prejudgment and post- judgment interest, and attorneys' fees and costs pursuant to the Fair Labor Standard Act. The Defendants own and operate a supermarket with a principal place of business at 3 Richman Plaza, Bronx, New York 10453. The Plaintiff is represented by: Giustino Cilenti, Esq. Peter Hans Cooper, Esq. CILENTI & COOPER, P.L.L.C. 708 Third Avenue, 6th Flr New York, NY 10017 Telephone: (212) 209-3933 Facsimile: (212) 209-7102 E-mail: jcilenti@jcpclaw.com pcooper@jcpclaw.com WORLD WIDE GOURMET: Recalls Teriyaki Salmon Jerky Due to Wheat -------------------------------------------------------------- World Wide Gourmet Foods of Woodinville, WA is recalling 2916 packages of Central Market Teriyaki Salmon Jerky because it may contain undeclared wheat and soy. People who have an allergy or severe sensitivity to wheat and soy run the risk of serious or life-threatening allergic reaction if they consume this product. The recall was initiated after it was discovered that some packages were mislabeled on the back side as Central Market Smoked Salmon Jerky which omits the presence of wheat and soy. Product was distributed to H.E.B retail stores in Texas between 2/27/15 and 4/3/2015. Product is identified by a purple Central Market Teriyaki Salmon Jerky front label with a back label indicating Central Market Smoked Salmon Jerky with a UPC of 0 41220 34270 9. The affected best by date is 08/25/2015. No illnesses have been reported to date. This recall is being made with the knowledge of the U.S. Food and Drug Administration and the Washington State Department of Agriculture. Consumers who have purchased Central Market Teriyaki Salmon Jerky with a back label Central Market Smoked Salmon Jerky are urged to return it to the place of purchase for a full refund. Consumers with questions may contact the company at 1-800-422-0852 from 07:00am to 04:00pm Pacific Standard Time, Monday through Friday. WPX ENERGY: Royalty Litigation Parties to Seek Stay of New Suit --------------------------------------------------------------- WPX Energy, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 26, 2015, for the fiscal year ended December 31, 2014, that the parties in the Royalty litigation have agreed to seek a stay of a new lawsuit pending resolution of the first lawsuit in the Colorado Court of Appeals. "In September 2006, royalty interest owners in Garfield County, Colorado, filed a class action suit in District Court, Garfield County, Colorado, alleging we improperly calculated oil and gas royalty payments, failed to account for proceeds received from the sale of natural gas and extracted products, improperly charged certain expenses and failed to refund amounts withheld in excess of ad valorem tax obligations," the Company said. "Plaintiffs sought to certify a class of royalty interest owners, recover underpayment of royalties and obtain corrected payments related to calculation errors. We entered into a final partial settlement agreement. The partial settlement agreement defined the class for certification, resolved claims relating to past calculation of royalty and overriding royalty payments, established certain rules to govern future royalty and overriding royalty payments, resolved claims related to past withholding for ad valorem tax payments, established a procedure for refunds of any such excess withholding in the future, and reserved two claims for court resolution. We have prevailed at the trial court and all levels of appeal on the first reserved claim regarding whether we are allowed to deduct mainline pipeline transportation costs pursuant to certain lease agreements. The remaining claim related to the issue of whether we are required to have proportionately increased the value of natural gas by transporting that gas on mainline transmission lines and, if required, whether we did so and are entitled to deduct a proportionate share of transportation costs in calculating royalty payments." "Plaintiffs had claimed damages of approximately $20 million plus interest for the period from July 2000 to July 2008. The court issued pretrial orders finding that we do bear the burden of demonstrating enhancement of the value of gas in order to deduct transportation costs and that the enhancement test must be applied on a monthly basis in order to determine the reasonableness of post-production transportation costs. Trial occurred in December 2013 on the issue of whether we have met that burden. Following that trial, the court issued its order rejecting plaintiffs' proposed standard and accepting our position as to the methodology to use in determining the standard by which our activity should be judged. We have completed the accounting process under the standard and have obtained the court's approval. "However, as we continue to believe our royalty calculations have been properly determined in accordance with the appropriate contractual arrangements and Colorado law, we have appealed this matter to the Colorado Court of Appeals. Plaintiffs have now filed a second class action lawsuit in the District Court, Garfield County containing similar allegations but related to subsequent time periods. The parties have agreed to seek a stay of this new lawsuit pending resolution of the first lawsuit in the Colorado Court of Appeals." WPX ENERGY: Facing Class Action in New Mexico Court --------------------------------------------------- WPX Energy, Inc. is facing potential class action filed in the United States District Court for the District of New Mexico by mineral interest owners in New Mexico and Colorado, WPX Energy said in its Form 10-K Report filed with the Securities and Exchange Commission on February 26, 2015, for the fiscal year ended December 31, 2014. "In October 2011, a potential class of royalty interest owners in New Mexico and Colorado filed a complaint against us in the County of Rio Arriba, New Mexico," the Company said. "The complaint presently alleges failure to pay royalty on hydrocarbons including drip condensate, breach of the duty of good faith and fair dealing, fraudulent concealment, conversion, misstatement of the value of gas and affiliated sales, breach of duty to market hydrocarbons in Colorado, violation of the New Mexico Oil and Gas Proceeds Payment Act, and bad faith breach of contract. Plaintiffs seek monetary damages and a declaratory judgment enjoining activities relating to production, payments and future reporting. This matter has been removed to the United States District Court for New Mexico." "In August 2012, a second potential class action was filed against us in the United States District Court for the District of New Mexico by mineral interest owners in New Mexico and Colorado. Plaintiffs claim breach of contract, breach of the covenant of good faith and fair dealing, breach of implied duty to market both in Colorado and New Mexico, violation of the New Mexico Oil and Gas Proceeds Payment Act and seek declaratory judgment, accounting and injunction. At this time, we believe that our royalty calculations have been properly determined in accordance with the appropriate contractual arrangements and applicable laws. We do not have sufficient information to calculate an estimated range of exposure related to these claims." YOUNG HOSPITALITY: Faces "Venancio" Suit Over Failure to Pay OT --------------------------------------------------------------- Roselio Venancio, individually and on behalf of other employees similarly situated v. Young Hospitality Staffing, Inc. and Roger Young, Case No. 1:15-cv-03417 (N.D. Ill., April 17, 2015), is brought against the Defendants for failure to pay overtime wages for hours worked in excess of 40 in a week. The Defendants own and operate a hotel in Cook County, Illinois. The Plaintiff is represented by: David Erik Stevens, Esq. CONSUMER LAW GROUP, LLC 6232 N. Pulaski, Suite 200 Chicago, IL 60646 Telephone: (312) 307-0766 E-mail: Dave@StevensLawLLC.com * Plaintiffs Counsel Face Challenge in Filing Arbitration Claims ---------------------------------------------------------------- Marisa Kendall, writing for The Recorder, reports that for plaintiffs attorneys who once made a living on consumer or employment class actions, arbitration is a dirty word. They divide the world into two eras -- pre-Concepcion, a happier time, and post-Concepcion. In the aftermath of that 2011 U.S. Supreme Court decision, class actions all but dried up and companies that once looked like rich targets shielded themselves with agreements providing that disputes with customers and employees must be resolved through arbitration. Most lawyers gave up challenging those agreements once the courts made it clear they would lose every time. "Arbitration is just the bane of my existence," said Mark Ankcorn, a consumer class action attorney based in San Diego. He said that 11-letter word has "completely eviscerated" his practice area. To adapt, plaintiffs lawyers say they are targeting new niches and diversifying their firms away from a focus on consumer class actions. On the employment side, a few lawyers are trying to beat companies at their own game by bombarding them with dozens of individual claims in arbitration. There are still options for plaintiffs lawyers, said Shannon Liss- Riordan, a Boston attorney currently litigating wage-and-hour claims against Lyft Inc. and Uber Technologies Inc. in California. "The door has not been completely shut," she said, "though it's definitely been narrowed." In California, plaintiffs lawyers find a measure of hope in the push and pull between the pro-arbitration U.S. Supreme Court and the California Supreme Court, which takes a more skeptical view. Earlier this month the state Supreme Court agreed to review in McGill v. Citibank whether consumers seeking injunctive relief under California law can be forced into arbitration. In May the justices will hear arguments in Sanchez v. Valencia Holding, and potentially lay out new grounds by which courts can reject unfair or one-sided arbitration agreements. The court's newest members, Mariano-Florentino Cuellar and Leondra Kruger, haven't yet shown their cards on the issue of arbitration. Employment lawyer Steven Zieff of plaintiffs firm Rudy, Exelrod, Zieff & Lowe, said he's hopeful the justices will use the upcoming cases to stop the law from shifting any further in favor of companies. "I like the new appointments," Mr. Zieff said. "So I think the odds of getting a more employee-favorable ruling are better now than they have been." POST-'CONCEPCION'WORLD The U.S. Supreme Court made history in 2011 with AT&T Mobility v. Concepcion, ruling the Federal Arbitration Act pre-empts more plaintiff-friendly state law. The ruling nullified California case law that had prohibited class arbitration bans, and made it more difficult for plaintiffs lawyers to challenge companies' arbitration agreements. In a post-Concepcion world, most banks and credit card companies, cellphone carriers, and Internet and cable providers have become largely untouchable for plaintiffs lawyers. Since customers aren't required to sign a contract before they tear into a bag of Doritos or pop open a Coke, some lawyers say it's no coincidence that cases over "100% Natural" and other food label claims have since flooded the Northern District of California. William Stern -- wstern@mofo.com -- a Morrison & Foerster partner who represents companies in consumer class actions, said five years ago almost all his clients were banks. Now he mostly defends food companies and brick-and-mortar retail stores. Brian Strange -- lacounsel@earthlink.net -- managing partner of plaintiffs class action firm Strange & Carpenter in Los Angeles, pointed out it's still possible to poke holes in a company's arbitration agreement. Online agreements can be weak, especially if a consumer isn't required to click to accept the terms. Last year Mr. Strange convinced the U.S. Court of Appeals for the Ninth Circuit to disregard Barnes & Noble Inc.'s agreement in a proposed class action over online computer purchases. A link to the website's terms and conditions was posted at the bottom of the screen and the court ruled there was no evidence the user had reviewed it. Still, Mr. Strange estimated his firm turns away 25 to 30 percent of potential clients with otherwise strong consumer claims, just because they're bound by arbitration agreements. "There's definitely been a significant drop in revenue for the consumer side," he said. As a result, Strange & Carpenter is focusing more on antitrust law. The firm recently hired two antitrust lawyers -- Keith Butler -- kbutler@strangeandcarpenter.com -- formerly of Proskauer Rose, and Cindy Reichline, who joined from Jones Day about four months ago. GOING IT ALONE Most arbitration agreements expressly prohibit class arbitration, a further roadblock for plaintiffs lawyers hoping for the efficiency -- and windfall recoveries -- that can come from jointly handling claims for hundreds or thousands of individuals. A class ban often prompts plaintiffs lawyers to abandon the case. But Ms. Liss-Riordan, the Boston-based employment attorney, is interpreting the ban as a challenge. She's filed the first few of more than 50 individual arbitration actions against Arise Virtual Solutions, a call-center outsourcing service. Ms. Liss-Riordan won the first action earlier this year, securing $11,600 for her client and $90,000 in attorney fees. The remaining actions, all alleging the same wage-and-hour claims, will take her all over the country. Arise's employment agreement requires workers to arbitrate their claims where they live, and the workers, who take calls from their homes, are spread out nationwide. Ms. Liss-Riordan is prepared to use the same tactic against Uber in the Northern District of California. Uber sent a new contract containing an arbitration agreement to its drivers in 2013, shortly after lawyers sued the company in Massachusetts and Illinois for wage-and-hour violations. Though the timing and wording of the agreement have already been contested in the California case, Uber's lawyers haven't yet moved to enforce it. Expecting they will, Ms. Liss-Riordan has started contacting drivers to file individual actions in case a federal judge pushes the case into arbitration. "We've had hundreds of drivers from around the country sign up already," she said. "I'm hoping to get thousands." Other employment attorneys are using the same strategy. Jennifer Liu, a San Francisco employment lawyer who left Outten & Golden to start her own firm in January, said she's in the process of filing "literally dozens" of arbitration claims against a Minnesota bank. The claims against parent company TCF Financial Corp. all allege the same wage-and-hour violations. When asked about the challenge of filing individual arbitration claims, Ms. Liu laughed. "Oh, where to start?" she asked. "It's not the most efficient way to seek recovery." A mass action may be inefficient but doable in the employment context. But it's often impossible in consumer cases, where individual damages generally are much smaller. A recent study of arbitration claims filed in 2010 and 2011 against credit card, pre-paid card and loan companies found the median relief awarded to consumers came to $2,700. The median fees granted to plaintiffs attorneys was $4,800, according to the report from the Consumer Financial Protection Bureau, which looked at outcomes from the American Arbitration Association (AAA). Matthew Edling -- medling@cpmlegal.com -- of Cotchett, Pitre & McCarthy said the arbitration fees alone are enough to chill potential claims. It cost him $400,000 to try a two-week arbitration before the AAA last year. "How does an individual have any chance of affording that?" he asked. CALIFORNIA CASES In June the California Supreme Court largely buckled to Concepcion but carved out an exemption for state labor code actions brought under the Private Attorney Generals Act. The ruling in Iskanian v. CLS Transportation, which buoyed plaintiffs lawyers, has already sparked a backlash in California's federal courts, with multiple judges concluding the carve-out is trumped under Concepcion by the Federal Arbitration Act. Orrick, Herrington & Sutcliffe secured victories for Sears, Roebuck and Co. and Kmart Corp. last year, by arguing, as partner Joseph Liburt put it, that Iskanian was "simply wrong." With two arbitration cases on the California Supreme Court docket, both plaintiffs and defense lawyers are watching for signs of whether the court intends to buck pressure from the U.S. Supreme Court or step more completely in line with federal rulings. In May the justices will hear arguments in Sanchez v. Valencia Holding, a case involving the arbitration provision in a contract for a car purchase. The court has asked the lawyers to weigh in on the current standard for invalidating an arbitration agreement, and likely will use the case to clarify what makes an arbitration agreement too unfair or one-sided to enforce. The case has drawn a host of amici curiae, including the Chamber of Commerce and Association of Global Automakers, represented by Mayer Brown; the finance arms of Nissan, Toyota, General Motors and Volt; and various consumer groups. In their brief, the Consumer Attorneys of California emphasized the need for a post-Concepcion safety valve. "Consider an arbitration agreement that required the arbitrator to refuse any evidence and decide all cases in favor of the drafting party," the lawyers wrote. "Or consider an arbitration agreement written in eight-point type in the middle of an adhesive, 30-page employment contract." On the other side, the U.S. Chamber of Commerce and automaker associations argue federal law prohibits subjecting arbitration clauses to more excessive scrutiny than any other contract. Earlier this month the California Supreme Court granted review of a Fourth District Court of Appeal ruling in McGill v. Citibank, which held that the Federal Arbitration Act nullifies California's Broughton-Cruz rule. The rule, already rejected by the U.S. Court of Appeals for the Ninth Circuit, provided that claims seeking injunctive relief are exempt from arbitration agreements. A lot could hinge on the decision, said Orrick partner Robert Varian. Even when consumers' damages claims are pushed into arbitration, he said, keeping even one injunctive relief claim in court could be a significant win for plaintiffs lawyers. "That would still give plaintiffs lawyers a lot of leverage," he said, "to force settlements." * Recent Tobacco Ruling May Hit Florida Smokers' Tort Lawsuits -------------------------------------------------------------- Alyson Palmer, writing for Daily Report, reports that a federal appeals court's ruling siding with tobacco companies on April 8 could be devastating to Florida smokers' tort lawsuits, says a Miami law professor following the cases. The ruling by the U.S. Court of Appeals for the Eleventh Circuit tossed a verdict won against tobacco companies by the estate of a Florida smoker. A three-judge panel held that the practice of using jury findings from an earlier tobacco class action conflicted with federal law on cigarettes. When the Florida Supreme Court in 2006 decertified the class and tossed its $145 billion punitive damages award in Engle v. Liggett Group Inc., it nonetheless allowed individual plaintiffs to rely in the future on the class action jury's findings about the dangers of cigarettes. Thousands of individuals subsequently filed suit, basing their claims on the jury findings from the initial class action. So the Eleventh Circuit's ruling, that federal law doesn't allow the use of those findings, "is almost like a neutron bomb for the Engle-type cases," said Sergio Campos, a law professor at the University of Miami who is not involved in the cases but has been following them closely. Mr. Campos, who is visiting at Harvard Law School right now, allowed that the Eleventh Circuit decision says plaintiffs may proceed on their claims as long as they do not rely on the class jury's findings. "But," he predicted, "a lot of cases are going to just disappear." Gregory Katsas -- ggkatsas@jonesday.com -- of Jones Day's Washington office, who argued for the defense, said in an email on April 8, "We are very pleased that our position was vindicated in such a strong opinion, and we are in the process of analyzing the opinion and our options." Jerome Mayer-Cantu of Lieff Cabraser Heimann & Bernstein in San Francisco argued for the plaintiff at the Eleventh Circuit. He couldn't be reached. New York University law professor Samuel Issacharoff, who is part of the team of lawyers representing the various plaintiffs, said the lawyers would seek the full Eleventh Circuit's review of the decision. "This is an unprecedented overreach in federal power," said Mr. Issacharoff. "It is quite a departure from pre-emption as we know it." Plaintiffs' lawyers in February announced they had reached a $100 million aggregate settlement with several tobacco companies for a subset of the Engle-progeny cases, approximately 400 that were pending in federal district court. According to Robert Nelson, a partner at Lieff Cabraser, that settlement included all of the cases pending in federal court that are yet to be tried. He said about a dozen cases that have been tried to verdict in federal court are on appeal, and the verdicts in four of those were based only on strict liability and negligence claims, the claims affected directly by the Eleventh Circuit ruling. He said additional cases pending in Florida state court may be affected, as well. Florida state appeals courts decertified the initial class on the grounds that individual determinations of specific causation and damages couldn't be established on a classwide basis. Attempting to avoid re-trying all liability issues in thousands of cases, however, the Florida Supreme Court found what it called a "pragmatic solution." The watershed 2006 decision, Engle v. Liggett Group Inc., permitted certain findings from the verdict to be retained in follow-on damage actions. Among those findings were: -- the jury's determination that the tobacco companies marketed cigarettes that were defective and unreasonably dangerous; -- that they concealed or omitted material information about the health and addictive effects of smoking; -- and that they failed to exercise the degree of care that a "reasonable cigarette manufacturer" would have exercised under similar circumstances. In previous cases, the Eleventh Circuit has rejected tobacco companies' arguments that using those findings in the subsequent individual trials violated their due process rights, and the U.S. Supreme Court declined to take up the issue on certiorari. But the tobacco makers had another argument in their pockets, that imposing tort liability based on the Engle findings was pre-empted by federal law. Their reason: Congress for decades had elected to regulate, but not ban, the sale of tobacco products, despite their known health risks and addictive properties -- so a jury couldn't be forced to accept findings such as the cigarettes were unreasonably dangerous. The issue came to the Eleventh Circuit in the case brought by the estate of Faye Graham, which was tried to a jury in a federal court in Jacksonville in 2013. In accordance with instructions by the Florida Supreme Court, jurors were told that they had to accept, based on the Engle jury's findings, that the defendants were negligent and had put a defective, unreasonably dangerous product on the market. Jurors were told to decide whether smoking cigarettes manufactured by each of the defendants was a legal cause of Graham's death. The jury awarded Graham's widower $2.75 million in damages, which was reduced to a verdict of $550,000 against R.J. Reynolds Tobacco Co. and $275,000 against Phillip Morris USA based on the jury's findings that Graham was 70 percent responsible for her own death. U.S. District Judge Marc Treadwell of Macon, who presided over the trial sitting by designation, denied the defendants' motion for judgment as a matter of law. A panel of the U.S. Court of Appeals for the Eleventh Circuit -- Judges Gerald Tjoflat and Jill Pryor and Senior Judge Emmett Ripley Cox -- reversed that decision on April 8, the appellate judges basing their ruling on the companies' pre-emption argument. Writing for the panel, Judge Tjoflat said that, as a consequence of the Florida Supreme Court's instructions on how to apply the Engle jury's findings combined with the Eleventh Circuit's ruling on due process, "the necessary basis for Graham's Engle-progeny strict-liability and negligence claims is that all cigarettes sold during the class period were defective as a matter of law. This, in turn, imposed a common-law duty on cigarette manufacturers that they necessarily breached every time they placed a cigarette on the market. Such a duty operates, in essence, as a ban on cigarettes. Accordingly, it conflicts with Congress's clear purpose and objective of regulating -- not banning -- cigarettes, thereby leaving to adult consumers the choice whether to smoke cigarettes or to abstain." Judge Tjoflat rejected the plaintiff's argument that applying pre- emption to do away with his strict liability and negligence claims would leave Engle-progeny plaintiffs without a remedy. He said the court was expressing no opinion on the validity of "other Engle claims," such as fraudulent concealment or conspiracy to conceal. He said the ruling did not necessarily prevent Engle- progeny plaintiffs from bringing state law strict-liability or negligence claims, as long as they don't rely on the Engle jury findings to do so. "The subtext of Graham's legal analysis seems to suggest that his claims are immune from pre-emption simply because the Engle litigation has managed to survive for 20 years and has now grown too big to fail," wrote Judge Tjoflat. "Thankfully, our constitution lends credence to no such argument." Mr. Campos, the Miami law professor, called the decision "very shocking," saying, "typically in strict liability you only have to prove causation in order to recover. . . . That has never been considered a ban, and in fact this type of tort liability is often seen as an alternative to a flat ban." He said the ruling "may require a lot of plaintiffs to reinvent the wheel every single time" and prove the dangers of cigarettes at each individual trial. * Tort Reforms Groups Back Asbestos Litigation Bill --------------------------------------------------- Texas Lawyer reports that tort reform groups are backing a bill to reform asbestos litigation procedures, while Bryan Blevins, president of the Texas Trial Lawyers Association, is criticizing it for creating a mismatch between plaintiffs and defendants. House Bill 1492 author Rep. Doug Miller, R-New Braunfels, told members of the House Judiciary and Civil Jurisprudence Committee there is a loophole in current law: Some asbestos plaintiffs first file a lawsuit, and, after that suit is resolved, they file a compensation claim with bankruptcy trusts. The practice creates an opportunity for fraud and "double dipping," said Mr. Miller, adding that his bill would address the issue by requiring a plaintiff to file a bankruptcy claim first. The Senate State Affairs Committee scheduled a public hearing on April 13 for a similar bill, Senate Bill 491, by Sen. Charles Schwertner, R-Georgetown. Nathan Horne of the U.S. Chamber of Commerce Institute for Legal Reform represents defendants in asbestos litigation. He said that if a defendant knew the amount a plaintiff stood to collect from bankruptcy trusts, the defendant would use the information in settlement talks. The defendant would also learn the plaintiff's exposure history, helping to show the defendant wasn't totally responsible for an injury. But Mr. Blevins, who represents asbestos plaintiffs, said some asbestos victims die within six to 18 months of diagnosis. If a client is dying, his lawyer's focus is to get his day in court, he said. The bill would allow a defendant to stop the trial, force a plaintiff to produce evidence in the bankruptcy trust claims and allow the defendant to use that evidence against the plaintiff, said Blevins. According to the National Cancer Institute at the National Institutes of Health, asbestos comes from naturally occurring minerals and is found in construction products like insulation and ceiling tiles. Asbestos exposure can cause cancer and lung disorders, among other ailments. Companies responsible for creating asbestos or silica products that have gone bankrupt create trusts to compensate people who became ill due to exposure. Bill's Provisions Under Committee Substitute House Bill 1492, a claimant would have to give notice of trust claims and documentation to each party in a lawsuit. If a plaintiff had already won a judgment but didn't give the notice, then the defendant could ask a court for a sanction, "including vacating the judgment and ordering a new trial." The bill would authorize a defendant to file a motion to stay proceedings in a court if he thought the claimant could make a trust claim instead. If a plaintiff were to argue it would cost more to make that claim than he stood to recover, the bill would allow the court to order the plaintiff to "provide the court with a verified statement of the exposed person's exposure history." The bill provides that a defendant can use a trust claim and documentation to argue that something else caused the injury and that others were responsible. In cases where a claimant had already won a judgment in court, a defendant could file a motion for the court to modify the judgment to subtract any later trust payments, according to the bill. Testimony Committee members called for testimony from Multidistrict Litigation Judge Mark Davidson, who sat in the audience waiting for another bill's hearing. He said he would answer questions but he did not take any position on CSHB 1492. Committee member Rep. Travis Clardy, R-Nacogdoches, who represents defendants in asbestos litigation, said he's practiced before Davidson. In his experience, Mr. Clardy said, if Davidson wanted a party to produce certain evidence, it happened. Mr. Clardy asked Davidson whether there was a problem that the bill would solve. Judge Davidson said state law mandates a trial within six months for asbestos cases. To comply, he created a 40-page case management order requiring a plaintiff to disclose his work and health records to start the clock for the six-month trial. The plaintiff must also disclose trust claims, he added. Judge Davidson said that allowing a defendant to stay a proceeding might conflict with the six-month trial requirement. Part of the bill that allows claims information to prove what caused an injury seems to overrule a Texas Supreme Court ruling, BorgWarner v. Flores, which requires plaintiffs to prove their dose of asbestos exposure. Judge Davidson said if lawmakers were trying to overrule BorgWarner, he would appreciate more details and commentary. "I will follow your policy but I would simply ask you to give me some clarification," said Judge Davidson. Mr. Blevins took issue with the same provision in the bill. He explained that BorgWarner makes a plaintiff prove a very high standard: the number of asbestos fibers that he breathed in from the defendants' product. Defendants currently must meet the same standard to bring in a responsible third party, he said. But the bill would change the standard for defendants by allowing them to use trust claims to prove causation, while plaintiffs would still have to meet the higher standard, said Mr. Blevins. It would create a great mismatch in the asbestos litigation system, he said. Texans for Lawsuit Reform and the Texas Civil Justice League also supported the bill in the hearing. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Ma. Cristina Canson, Noemi Irene A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2015. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. 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