/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/150513.mbx C L A S S A C T I O N R E P O R T E R Wednesday, May 13, 2015, Vol. 17, No. 95 Headlines AARON'S INC: "Byrd" Spyware Suit Fit for Class, 3rd Circuit Rules ACME ENERGY: Faces "Haynes" Suit Over Failure to Pay Overtime ALMA LASERS: Ill. Court Denies Class Action in "Fax Blast" Suit APPLE HOSPITALITY: Dismissal of Claims in Apple REITS Case Sought APPLE HOSPITALITY: Class Action Claims in DCG&T Case Dismissed APPLE HOSPITALITY: To Defend Against "Moses" Case APPLE HOSPITALITY: "Wenzel" Case Plaintiff Filed Amended Complaint ARIZONA: "Parsons" Prisoners Suit Inspires 9th Cir. Dissent ASSOCIATED ESTATES: Sued Over Alleged Breach of Fiduciary Duties ATEECO INC: Faces "Steinberg" Suit Over Product Misbranding AUDIENCE INC: Class Action Trial Scheduled for September 15 AVEO PHARMACEUTICALS: Intends to Defend Against 2 Class Actions AVON PRODUCTS: Court Certifies Class of District Sales Managers BABOLAT VS NORTH: Judgment Entered on "Ahdoot" Suit Settlement BAKER HUGHES: Faces "Williams" Suit Over Failure to Pay Overtime BAYOU WELL: Doesn't Pay Operator Properly, "Bittner" Suit Says BETTER FAMILIES: "Tarrago" Suit Seeks to Recover Unpaid OT Wages BIOLASE INC: Settlement Subject to Negotiation of Definitive Deal BLUE WORLD: Removed "Roberts" Class Suit to W.D. Kentucky CAB LOGISTICS: Faces "Travis" Suit Over Failure to Pay Overtime CARNE CHOP: "Yucha" Suit Seeks to Recover Unpaid Overtime Wages CEPHALON INC: Judge Dismisses Unjust Enrichment Class Action CHERRY CONCRETE: "Johnson" Suit Seeks to Recover Unpaid OT Wages CHICO'S FAS: Class Action Settlement Preliminarily Approved CHIQUITA BRANDS: Pesticide Showers Poison Villagers, Suit Says CIMAREX ENERGY: Administration of Settlement Ongoing CINEMARK USA: Joseph Amey Case in Pretrial Discovery CIRQUE DU SOLEIL: Waiters File Class Action Over Tip Policy CITIGROUP INC: Faces "Korenblum" Suit Over Failure to Pay OT CLUB EXPLORIA: Has Made Unsolicited Calls, "Miller" Suit Claims COLONIAL FINANCIAL: Faces Action Related to Cape Bancorp Merger CROSS COUNTRY HEALTHCARE: Paid $0.8 Million to Plaintiff DENDREON CORPORATION: Settlement Approval Hearing Held DEUTSCHE BANK: Court Tosses Lorenz's Renewed Motion for TRO DOMEX USA: "Abreu" Suit Seeks to Recover Unpaid Overtime Wages E*TRADE FINANCIAL: Rayner Suit Stayed Pending PFOF Action Rulings ENERGY RECOVERY: Faces "Sabatino" and "Mowdy" Actions EPIC WIRELINE: Faces "Herrera" Suit Over Failure to Pay Overtime FALCON SKYCAP: Faces "Fisch" Suit Over Failure to Pay Overtime FORMFACTOR INC: Mediation Did Not Result in Settlement FURMANITE AMERICA: Faces "Christian" Suit Over Failure to Pay OT GENTIVA HEALTH: Settles Investor Class Action for $6.5 Million GIGA LTD: Faces "Cardona" Suit Over Failure to Pay Overtime Wages GMRI INC: Faces "Tyczynski" Suit Over Failure to Pay Overtime GOOGLE INC: Plaintiffs Drop Android Monopoly Class Action GOOGLE INC: Judge Tosses Class Action Over In-App Purchases GREAT LAKES DREDGE: Parties Reached Deal in Securities Class Suit HIGHER ONE: Consumer Class Action Settlement Becomes Final HIGHER ONE: Deadline to Respond to Securities Action Due HUGOTON ROYALTY: No Updates in Roderick Trust Action HUGOTON ROYALTY: No Updates in Chieftain Royalty Action HYBRID CONCRETE: Faces "Bello" Suit Over Failure to Pay Overtime IBEX GLOBAL: Call Center Workers File Class Action in Tennessee INFORMATICA CORP: Being Sold for Too Little to Italics, Suit Says INNERWORKINGS INC: Motion to Dismiss Van Noppen Complaint Pending INTERNATIONAL INTERACTIVE: Has Made Unsolicited Calls, Suit Says INTUIT INC: Faces "Diaz" Class Suit Over Lax Security at TurboTax K&K ASSISTED: Faces "Williams" Suit Over Failure to Pay Overtime KRAFT FOODS: Faces Class Action Over Alleged Market Manipulation LIBERTY TAX: ERC Class Action in Early Procedural Stage LIBERTY TAX: TCPA Case Settlement Subject to Final Negotiations MACHINE ZONE: Faces "Mason" Class Suit Over Loss in Game of War MARICOPA, AZ: Sheriff Joe Arpaio Faces Civil Contempt Hearing MEDI-WHEELS: "Balde" Suit Seeks to Recover Unpaid Wages & Damages MEDTRONIC INC: MiniMed Insulin Pump Blamed for Death of NJ Man MONSANTO CO: Falsely Advertised Roundup Weed-Killer, Suit Claims MULTICARE HEALTH: Sued Over Excessive Medical Record Fees NATIONAL SECURITIES: NY Sup. Court Dismisses "Vasquez" Action NEWARK, NJ: Judge Stays Class Action v. Watershed Agency OMIMEX CANADA: 9th Cir. Upholds Judgment in S Bar Branch Case OMNIVISION TECHNOLOGIES: June Final Settlement Approval Hearing ORBITZ WORLDWIDE: Hotel Booking Antitrust Case Officially Ended ORBITZ WORLDWIDE: Facing Delaware Actions Relating Expedia Deals PVH CORP: Faces Class Action Over Unrequested Text Messages QUIKSILVER INC: Faces Securities Class Action in California RANDSTAD US: Blumenthal, Nordrehuag & Bhomik Files Class Action RAYONIER ADVANCED: Sued in Fla. Over Misleading Financial Reports RESIDENTIAL MANAGEMENT: "Mosquea" Suit Seeks to Recover Unpaid OT REXFORD INDUSTRIAL: Motion to Dismiss Class Action Pending SAKS & CO: Obtains Favorable Ruling in Return Policy Class Action SIMPLEXGRINNELL LP: Wins Prelim. Certification of Labor Class SKY BAR: Faces "Flores" Suit Over Failure to Pay Overtime Wages SPIRIT AEROSYSTEMS: Awaits Judge's Decision on Motion to Dismiss TAKEDA PHARMACEUTICALS: Faces Cherokee Suit Over Actos(R) Drugs TEXTURA CORPORATION: Deadline to File Motion to Dismiss Due TRUMP UNIVERSITY: Directed by Court to Pay $798,000 in Legal Fees VICTORY PLANNING: Has Sent Unsolicited Fax Ads, Sabon Suit Says WALT DISNEY: Judge Dismisses Anti-Poaching Class Action WASHINGTON HOSPITAL: Claim for "Uniform Maintenance" Work Tossed WELLS FARGO: Accused of Breaching Deal in "Pick-a-Payment" Suit XENCOR INC: Defendant in "DePinto v. John S. Stafford" Class Suit YELP INC: Court Dismisses Suit Alleging Manipulation of Reviews * Fla. Sup. Court Sides with Smokers in Jury Instructions Dispute ********* AARON'S INC: "Byrd" Spyware Suit Fit for Class, 3rd Circuit Rules ----------------------------------------------------------------- A couple's spyware claims against computer-rental company Aaron's are enough to warrant class certification, reports Andrew Thompson at Courthouse News Service, citing a 3rd Circuit ruling. The couple in question, Brian and Crystal Byrd of Wyoming, say that a franchisee of Aaron's used spyware software installed on its computers to log Brian's keystrokes and web traffic on a product he rented. The spyware even allegedly took pictures of Brian using the computer's webcam. Evidence showed that the franchisee, Aspen Way, accessed the Byrd's computer 347 times over 11 days. The Byrds seek to represent a class of customers "who leased and/or purchased one or more computers from Aaron's, Inc., and their household members, on whose computers DesignerWare's Detective Mode [the spyware] was installed and activated without such person's consent on or after January 1, 2007." Alternatively, they proposed to include customers "who leased and/or purchased one or more computers from Aaron's, Inc. or an Aaron's, Inc. franchisee, and their household members, on whose computers DesignerWare's Detective Mode was installed and activated without such person's consent on or after January 1, 2007." The case faced an appellate hearing of the 3rd Circuit earlier this year after a federal judge handling the case in Pittsburgh shot down the motion for class certification, based on a magistrate's finding that the class was defined too broadly and that its members were not "ascertainable," or objectively identifiable. A three-judge panel reversed on April 16, finding that the lower court misapplied precedent. "First, the District Court abused its discretion by misstating the rule governing ascertainability," Judge D. Brooks Smith wrote for the panel. "Second, the District Court engrafted an 'underinclusive' requirement that is foreign to our ascertainability standard. Third, the District Court made an errant conclusion of law in finding that an 'overly broad' class was not ascertainable. And fourth, the District Court improperly applied the legal principles from Carrera to the issue of whether 'household members' could be ascertainable." Published in 2013, Carrera v. Bayer Corp. expanded on some of the concerns relating to a defendant's "due process right to challenge the proof used to demonstrate class membership." Smith emphasized that objective records exist for the plaintiffs to "readily identify" members of owner or lessee classes. The District Court itself explained that "Aaron's own records reveal the computers upon which Detective Mode was activated, as well as the full identity of the customer who leased or purchased each of those computers," according to the 45-page lead opinion. ACME ENERGY: Faces "Haynes" Suit Over Failure to Pay Overtime ------------------------------------------------------------- Kerry S. Haynes, James Thompson, & Robert Subia, on behalf of themselves and others similarly situated v. Acme Energy Services, Inc. d/b/a Big Dog Drilling, Case No. 1:15-cv-00349 (W.D. Tex., April 30, 2015), is brought against the Defendant for failure to pay overtime wages in violation of the Fair Labor Standard Act. Headquartered in Midland, Texas Acme Energy Services, Inc. is in the business of drilling for oil. The Plaintiff is represented by: Robert Wayne Cowan, Esq. AILEY PEAVY BAILEY PLLC 440 Louisiana Street, Suite 2100 Houston, TX 77002 Telephone: (713) 425-7100 Facsimile: (713) 425-7101 E-mail: rcowan@bpblaw.com ALMA LASERS: Ill. Court Denies Class Action in "Fax Blast" Suit --------------------------------------------------------------- The National Law Review reports that a court in the Northern District of Illinois recently denied class certification in a "fax blast" case because the plaintiff failed to meet its burden of proof in showing that the putative class was ascertainable where there was no evidence identifying the recipients of the faxes. Physicians Healthsource, Inc. v. Alma Lasers, Inc., et al., No. 12-4978, 2015 U.S. Dist. LEXIS 41339 (N.D. Ill. Mar. 31, 2015). From the perspective of defense counsel, this case is a reminder of the importance of holding plaintiffs to their burden proof in showing that all of Rule 23's requirements are satisfied when opposing a motion for class certification. Plaintiffs face a hurdle in showing a class is ascertainable where there is no objective criteria establishing the identities of recipients of a particular communication. According to the court's opinion, Defendant Alma Lasers, Inc. ("Alma") is a manufacturer of laser devices used in noninvasive, aesthetic medical procedures such as hair removal and leg vein treatment. To promote its products, Alma schedules seminars for medical professionals throughout the country. In generating potential clients to attend its seminars, Alma purchased contact lists of medical professionals from BrightPath Marketing Services, LLC ("BrightPath"), and it entered that contact information into its general customer list. To promote its seminars, it then contracted with another third party, WestFax, Inc. ("WestFax"), to fax flyers to individuals on its contact list. It did not, however, send the contact lists generated by BrightPath directly to WestFax, so there was never a specific list used for the sole purpose of contacting potential customers by fax. In addition, Alma did not maintain the lists of customers contacted for particular seminars, and the invoices from WestFax only included aggregate data, listing the total number of faxes sent but not the particular numbers to which they were sent. In a putative class action complaint alleging a violation of the TCPA, Plaintiff Physicians Healthsource, Inc. ("Physicians") claimed that it received three identical faxes in July and August 2008 promoting an Alma seminar taking place in Columbus, Ohio, in October 2008. The faxes' headers included the name of M. Raza Khan, M.D., a doctor who had left Physicians a year earlier, but the headers did not include the name of Physicians or its fax number. The faxes had a manual date stamp that Physician said it applied when it received the faxes, but Physicians did not have any other record of an incoming fax from Alma or WestFax. Alma also did not have any contact information for Physicians or Dr. Khan in its marketing database or other records. Alma argued that the putative class was not ascertainable because Physicians did not provide an objective way of determining which Alma customers received the faxes. Noting that Alma did not maintain a list of individuals who were contacted solely by fax, the court found that, "[a]bsent a 'master list' of fax numbers, there is no evidence in the record that establishes which customers were sent Alma seminar faxes." Physicians also could not overcome the fact that it was not included on any list of fax numbers possessed by Alma, WestFax, or BrightPath. Alma also argued that Physicians did not have standing to pursue its TCPA claim, because there was insufficient evidence that it had received the fax. The court agreed: "Although the physical possession of Alma's advertisement suggests the receipt of an Alma fax, the exact recipient of the fax remains in question despite Physicians' possession of the three faxes." The fact that there was no record of the fax transmission led the court to conclude that Physicians failed to establish that it had suffered an injury under the TCPA. APPLE HOSPITALITY: Dismissal of Claims in Apple REITS Case Sought ----------------------------------------------------------------- Apple Hospitality REIT, Inc., said in its Form 10-K Report filed with the Securities and Exchange Commission on March 6, 2015, for the fiscal year ended December 31, 2014, that following remand, defendants have moved to dismiss plaintiffs' remaining claims in the Apple REITS Litigation. On December 13, 2011, the United States District Court for the Eastern District of New York ordered that three putative class actions, Kronberg, et al. v. David Lerner Associates, Inc., et al., Kowalski v. Apple REIT Ten, Inc., et al., and Leff v. Apple REIT Ten, Inc., et al., be consolidated and amended the caption of the consolidated matter to be In re Apple REITs Litigation. The District Court also appointed lead plaintiffs and lead counsel for the consolidated action and ordered lead plaintiffs to file and serve a consolidated complaint by February 17, 2012. The Company was previously named as a party in all three of the class action lawsuits. On February 17, 2012, lead plaintiffs and lead counsel in the In re Apple REITs Litigation, Civil Action No. 1:11-cv-02919-KAM-JO, filed an amended consolidated complaint in the United States District Court for the Eastern District of New York against the Company, ASRG, Apple Eight Advisors, Inc., A9A, A10A, AFM, Apple Six, Apple Seven, Apple Eight and Apple Ten, their directors and certain officers, and David Lerner Associates, Inc. and David Lerner. The consolidated complaint, which was dismissed in April 2013, was purportedly brought on behalf of all purchasers of units in the Company and the other Apple REIT Entities, or those who otherwise acquired these units that were offered and sold to them by David Lerner Associates, Inc., or its affiliates and on behalf of subclasses of shareholders in New Jersey, New York, Connecticut and Florida, and alleged that the Apple REIT Entities "misrepresented the investment objectives of the Apple REITs, the dividend payment policy of the Apple REITs, and the value of their Apple REIT investments." The consolidated complaint asserted claims under Sections 11, 12 and 15 of the Securities Act of 1933, as well as claims for breach of fiduciary duty, aiding and abetting breach of fiduciary duty, negligence, and unjust enrichment, and claims for violation of the securities laws of Connecticut and Florida. The complaint sought, among other things, certification of a putative nationwide class and the state subclasses, damages, rescission of share purchases and other costs and expenses. On April 18, 2012, the Company and the other defendants moved to dismiss the consolidated complaint in the In re Apple REITs Litigation. By Order entered on March 31, 2013 and opinion issued on April 3, 2013, the Court dismissed the consolidated complaint in its entirety with prejudice and without leave to amend. Plaintiffs filed a Notice of Appeal to the Second Circuit Court of Appeals on April 12, 2013, and filed their Brief for Plaintiffs- Appellants on July 26, 2013. Defendants-Appellees filed their Briefs on October 25, 2013. In response to the Defendants- Appellees Briefs, the Plaintiffs-Appellants filed a Reply Brief with the court on November 15, 2013. On April 23, 2014, the United States Court of Appeals for the Second Circuit (the "Second Circuit") entered a summary order in the consolidated class action referred to in the In re Apple REITs Litigation matter. In the summary order, the Second Circuit affirmed the dismissal by the United States District Court for the Eastern District of New York (the "District Court") of the plaintiffs' state and federal securities law claims and the unjust enrichment claim. The Second Circuit also noted that the District Court dismissed the plaintiffs' remaining state common law claims based on its finding that the complaint did not allege any losses suffered by the plaintiff class, and held that, to the extent that the District Court relied on this rationale, its dismissal of the plaintiffs' state law breach of fiduciary duty, aiding and abetting a breach of fiduciary duty, and negligence claims is vacated and remanded for further proceedings consistent with the summary order. Following remand, on June 6, 2014, defendants moved to dismiss plaintiffs' remaining claims. The Company will defend against the claims remanded to the District Court vigorously. At this time, the Company cannot reasonably predict the outcome of these proceedings or provide a reasonable estimate of the possible loss or range of loss due to these proceedings, if any. APPLE HOSPITALITY: Class Action Claims in DCG&T Case Dismissed -------------------------------------------------------------- Apple Hospitality REIT, Inc., said in its Form 10-K Report filed with the Securities and Exchange Commission on March 6, 2015, for the fiscal year ended December 31, 2014, that the court dismissed each of Plaintiffs' class action claims in the case DCG&T et al. v. Knight, et al. On January 31, 2014, two shareholders of the Company commenced a purported class action against the Company and its directors (the "Defendants") in the United States District Court for the Eastern District of Virginia (DCG&T, et al. v. Knight, et al., No. 3:14cv67, E.D. Va.). An amended complaint was filed on March 24, 2014. The amended complaint alleges (i) that the A7 and A8 mergers are unfair to the Company's shareholders, (ii) various breaches of fiduciary duty by the Company's directors in connection with the A7 and A8 mergers, (iii) that the A7 and A8 mergers provide a financial windfall to insiders, and (iv) that the Joint Proxy Statement/Prospectus mailed to the Company's shareholders in connection with the A7 and A8 mergers contains false and misleading disclosures about certain matters, and adds as parties certain Company management employees. The amended complaint demands (i) an order stating that the action may be maintained as a class action, certifying plaintiffs as class representatives, and that the action may be maintained as a derivative action, (ii) that the merger and the conversion of common and preferred shares be rescinded, (iii) an award of damages, and (iv) reimbursement of plaintiffs' attorneys' fees and other costs. On May 5, 2014, the Defendants moved to dismiss the amended complaint and filed an answer. On December 18, 2014, the United States District Court for the Eastern District of Virginia issued an order granting the Defendants' motion to dismiss in part and denying it in part. Specifically, the court dismissed each of Plaintiffs' class action claims, but held that Plaintiffs could bring derivative claims for breach of fiduciary duties of care and loyalty and for conflicts of interest. The Company believes that plaintiffs' claims are without merit and intends to defend these cases vigorously. At this time, the Company cannot reasonably predict the outcome of these proceedings or provide a reasonable estimate of the possible loss or range of loss due to these proceedings, if any. APPLE HOSPITALITY: To Defend Against "Moses" Case ------------------------------------------------- Apple Hospitality REIT, Inc., said in its Form 10-K Report filed with the Securities and Exchange Commission on March 6, 2015, for the fiscal year ended December 31, 2014, that the Company intends to defend the case Moses, et al. v. Apple Hospitality REIT, Inc., et al. On April 22, 2014, Plaintiff Susan Moses, purportedly a shareholder of Apple Seven and Apple Eight, now part of the Company, filed a class action against the Company and several individual directors on behalf of all then-existing shareholders and former shareholders of Apple Seven and Apple Eight, now part of the Company, who purchased additional shares under the Apple REITs' Dividend Reinvestment Plans ("DRIP") between July 17, 2007 and February 12, 2014 (Susan Moses, et al. v. Apple Hospitality REIT, Inc., et al., No. 503487/2014, N.Y. Sup. (Kings County)). Plaintiff brought suit in the Supreme Court of the State of New York in Kings County (Brooklyn) and alleged claims under Virginia law for breach of fiduciary duty against the individual directors, and constructive trust and unjust enrichment claims against the Company. Plaintiff alleges that the prices at which Plaintiff and the purported class members purchased additional shares through the DRIP were artificially inflated and not indicative of the true value of units in Apple Seven and Apple Eight. On May 19, 2014, defendants removed the action to the United States District Court for the Eastern District of New York. Following the filing of defendants' motion to dismiss and strike on June 6, 2014, Plaintiff filed an amended complaint on June 27, 2014 adding a claim for breach of contract. On July 14, 2014, defendants moved to dismiss and strike Plaintiff's amended complaint. The Company believes that Plaintiff's claims are without merit and intends to defend this case vigorously. At this time, the Company cannot reasonably predict the outcome of these proceedings or provide a reasonable estimate of the possible loss or range of loss due to these proceedings, if any. APPLE HOSPITALITY: "Wenzel" Case Plaintiff Filed Amended Complaint ------------------------------------------------------------------ Apple Hospitality REIT, Inc., said in its Form 10-K Report filed with the Securities and Exchange Commission on March 6, 2015, for the fiscal year ended December 31, 2014, that the Plaintiff in the case Wenzel v. Knight et al. has filed an amended complaint. On June 16, 2014, Plaintiff Dorothy Wenzel, purportedly a shareholder of Apple Seven and Apple Eight, now part of the Company, filed a class action against Apple Seven Advisors, Inc., Apple Eight Advisors, Inc., AFM and several officers and directors of the Company on behalf of all then-existing shareholders and former shareholders of Apple Seven and Apple Eight, now part of the Company, who purchased additional shares under the Apple REITs' Dividend Reinvestment Plans ("DRIP") between July 17, 2007 and June 30, 2013 (Wenzel v. Knight, et al., Case No. 3:14-cv- 00432-REP, E.D. Va.). Plaintiff brought suit in the United States District Court for the Eastern District of Virginia and alleged claims under Virginia law for breach of fiduciary duty against the individual directors, as well as aiding and abetting a breach of fiduciary duty and negligence against Apple Seven Advisors, Inc., Apple Eight Advisors, Inc., and AFM. Plaintiff alleges that the prices at which Plaintiff and the purported class members purchased additional shares through the DRIP were artificially inflated and not indicative of the true value of units in Apple Seven and Apple Eight. On July 18, 2014, defendants moved to dismiss the complaint or to transfer the action to the Eastern District of New York to be consolidated with the Moses action. On January 14, 2015, the United States District Court for the Eastern District of Virginia denied defendants' motions to transfer and consolidate. Also on January 14, 2015, the United States District Court for the Eastern District of Virginia issued an order granting the defendants' motion to dismiss each count alleged by the Plaintiff. Specifically, the court dismissed each of Plaintiffs' class action claims, but granted Plaintiff leave to amend its complaint to bring derivative claims for breach of fiduciary duties of care and loyalty and for conflicts of interest. The court also dismissed Plaintiff's claims against Apple Seven for lack of standing. On February 4, 2015, Plaintiff filed an amended complaint against the Company, Apple Eight Advisors, Inc., AFM, and several officers and directors of the Company alleging breach of contract, tortious interference with contract, fraud, negligence and violation of the Virginia Securities Act. The Company believes that Plaintiff's claims are without merit and intends to defend this case vigorously. At this time, the Company cannot reasonably predict the outcome of these proceedings or provide a reasonable estimate of the possible loss or range of loss due to these proceedings, if any. ARIZONA: "Parsons" Prisoners Suit Inspires 9th Cir. Dissent ----------------------------------------------------------- Tim Hull at Courthouse News Service reports that in declining to reconsider a class action by 33,000 Arizona prison inmates, the 9th Circuit has let stand "serious misinterpretations" of federal law, a dissent warns April 21. The plaintiffs in Parsons v. Ryan claimed in 2012 that critically inadequate medical, dental and mental health care in Arizona's prisons had exposed them to "preventable injury, amputation, disfigurement, and death," in violation of the Eighth Amendment. In addition to delaying or denying emergency treatment and other medical care, Arizona allegedly made it difficult for inmates to secure medications and medical devices, and provided substandard dental care that focused largely on extracting rather than healing offending teeth. Arizona complained to the 9th Circuit that the inmates had failed to demonstrate the "commonality and typicality" required for class certification, but a three-judge panel sided with the inmates last year, finding evidence of "the existence of the statewide ADC policies and practices that allegedly expose all members of the putative class to a substantial risk of serious harm." The state asked the federal appeals court to reconsider the issue before an 11-judge, en banc panel, but the parties reached a settlement just before the case went to trial. The agreement requires the Arizona Corrections Department to, among other things, request more funding from the Arizona Legislature -- funds it must use to better staff medical and mental health positions, an ongoing problem for the ADC. The 9th Circuit denied the state's motion to vacate the opinion in February, and, on April 21, refused to reconsider the issue en banc. In a long dissent, Judge Sandra Ikuta, joined by Judges Alex Kozinski, Diarmuid O'Scannlain, Consuelo Callahan, Carlos Bea and Milan Smith, argued that the denial violates "two straightforward principles" established by the U.S. Supreme Court. "First, before certifying a class, a court must ensure that all members of the potential class have the same sort of claim, and that the claim is susceptible to classwide resolution," she wrote. "Second, a prisoner does not have an Eighth Amendment claim merely because the prisoner is incarcerated in a prison with a defective medical system." Ikuta argued that, "because the proposed class here includes healthy prisoners who do not have an Eighth Amendment claim (or a nonexistent institutional reform Eighth Amendment claim)," the action does not meet the "commonality requirement." Mootness issues aside, Ikuta said the court should vacate class certification in the case to "avoid having the panel's serious misinterpretations of Supreme Court Eighth Amendment and class action jurisprudence become the law of our circuit." ASSOCIATED ESTATES: Sued Over Alleged Breach of Fiduciary Duties ---------------------------------------------------------------- Anne Cutler, on behalf of herself and all others similarly situated, and derivatively on behalf of other Associated Estates Realty Corporation v. Associated Estates Realty Corporation, et al., Case No. 1:15-cv-00857-DCN (N.D. Ohio, April 30, 2015), is a class action brought to enjoin the Defendants from further breaching their fiduciary duties in connection with the sale of the Company under pressure from an activist investor and through an unfair price. Associated Estates Realty Corporation is an Ohio corporation with its principal offices located at 1 AEC Parkway, Richmond Heights, Ohio. Associated Estates is a real investment trust with a portfolio of 56 apartment communities containing 15,004 units. The Plaintiff is represented by: Andrew S. Goldwasser, Esq. CIANO & GOLDWASSER 1610 Midland Bldg. 101 Prospect Avenue, W Cleveland, OH 44115 Telephone: (216) 658-9900 Facsimile: (216) 658-9902 E-mail: asg@c-g-law.com - and - Stephen J. Oddo, Esq. Edward B. Gerard, Esq. Justin D. Rieger, Esq. ROBBINS ARROYO LLP 600 B. Street, Suite 1900 San Diego, CA 92101 Telephone: (619) 525-3990 Facsimile: (619) 525-3991 E-mail: brobbins@robbinsarroyo.com soddo@robbinsarroyo.com egerard@robbinsarroyo.com jrieger@robbinsarroyo.com ATEECO INC: Faces "Steinberg" Suit Over Product Misbranding ----------------------------------------------------------- Amy Steinberg, on behalf of herself and all others similarly situated v. Ateeco, Inc., Case No. 0:15-cv-60912-WJZ (S.D. Fla., April 29, 2015), alleges that the Defendant made misrepresentations on the labels of Mrs. T's Pierogies products, specifically by understating the actual amount of calories, fat, and sodium contained in the Products. Ateeco, Inc. is a Pennsylvania corporation based in 600 East Centre Street, Shenandoah, Pennsylvania 17976. Ateeco promotes, markets, distributes, and sells Pierogies throughout the United States. The Plaintiff is represented by: Nathan C. Zipperian, Esq. SHEPHERD, FINKELMAN, MILLER & SHAH, LLP 1640 Town Center Circle Suite 216 Weston, FL 33326 Telephone: (954) 515-0123 Facsimile: (866) 515-0124 E-mail: nzipperian@sfmslaw.com - and - Scott R. Shepherd, Esq. James C. Shah, Esq. SHEPHERD, FINKELMAN, MILLER & SHAH, LLP 35 E. State Street Media, PA 19063 Telephone: (610) 891-9880 Facsimile: (866) 300-7367 E-mail: sshepherd@sfmslaw.com jshah@sfmslaw.com AUDIENCE INC: Class Action Trial Scheduled for September 15 ----------------------------------------------------------- Audience, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on March 9, 2015, for the fiscal year ended December 31, 2014, that trial has been scheduled for September 15, 2015, in a class action complaint. The Company said, "On September 13, 2012, a purported shareholder filed a class action complaint in the Superior Court of the State of California for Santa Clara County against us, the members of our board of directors, two of our executive officers and the underwriters of our IPO. An amended complaint was filed on February 25, 2013, which purports to be brought on behalf of a class of purchasers of our common stock issued in or traceable to the IPO. On April 3, 2013, the outside members of the board of directors and the underwriters were dismissed without prejudice. The amended complaint added additional shareholder plaintiffs and contains claims under Sections 11 and 15 of the Securities Act. The complaint seeks, among other things, compensatory damages, rescission and attorney's fees and costs. On March 1, 2013, defendants responded to the amended complaint by filing a demurrer moving to dismiss the amended complaint on the ground that the court lacks subject matter jurisdiction. The court overruled that demurrer. On March 27, 2013, defendants filed a demurrer moving to dismiss the amended complaint on other grounds. The Court denied the demurrer on September 4, 2013. On January 16, 2015, the court granted plaintiff's motion to certify a class. A trial has been scheduled for September 15, 2015." "We believe that the allegations in the complaint are without merit and intend to vigorously contest the action. However, there can be no assurance that we will be successful in our defense and we cannot currently estimate a range of any possible losses we may experience in connection with this case. Accordingly, we are unable at this time to estimate the effects of this complaint on our business, financial condition, operating results or cash flows." AVEO PHARMACEUTICALS: Intends to Defend Against 2 Class Actions --------------------------------------------------------------- Aveo Pharmaceuticals, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on March 6, 2015, for the fiscal year ended December 31, 2014, that the Company intends to vigorously defend against two class action lawsuits. Two class action lawsuits have been filed against the Company and certain present and former officers and members of the Company's board of directors, (Tuan Ha-Ngoc, David N. Johnston, William Slichenmyer and Ronald DePinho), in the United States District Court for the District of Massachusetts, one captioned Paul Sanders v. Aveo Pharmaceuticals, Inc., et al., No. 1:13-cv-11157- JLT, filed on May 9, 2013, and the other captioned Christine Krause v. AVEO Pharmaceuticals, Inc., et al., No. 1:13-cv-11320- JLT, filed on May 31, 2013. On December 4, 2013, the District Court consolidated the complaints as In re AVEO Pharmaceuticals, Inc. Securities Litigation et al., No. 1:13-cv-11157-DJC, and an amended complaint was filed on February 3, 2014. The amended complaint purports to be brought on behalf of shareholders who purchased the Company's common stock between January 3, 2012 and May 1, 2013. The amended complaint generally alleges that the Company and certain of its present and former officers and directors violated Sections 10(b) and/or 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by making allegedly false and/or misleading statements concerning the phase 3 trial design and results for our TIVO-1 study in an effort to lead investors to believe that the drug would receive approval from the FDA. The amended complaint seeks unspecified damages, interest, attorneys' fees, and other costs. On April 4, 2014, the Company filed a motion to dismiss the consolidated class action complaint with prejudice. Lead plaintiffs filed an opposition to the motion to dismiss on June 10, 2014, and the Company filed a reply to the opposition on July 10, 2014. The Court heard oral argument on the Company's motion to dismiss on July 22, 2014. The Company denies any allegations of wrongdoing and intends to vigorously defend against this lawsuit. However, there is no assurance that the Company will be successful in our defense or that insurance will be available or adequate to fund any settlement or judgment or the litigation costs of the action. Moreover, the Company is unable to predict the outcome or reasonably estimate a range of possible loss at this time. AVON PRODUCTS: Court Certifies Class of District Sales Managers --------------------------------------------------------------- Courthouse News Service reports that a federal judge certified a class of Avon district sales managers, who claim they've been stiffed for overtime since April 2009. BABOLAT VS NORTH: Judgment Entered on "Ahdoot" Suit Settlement -------------------------------------------------------------- District Judge Virginia A. Phillips entered on April 29, 2015, a judgment with respect the stipulation and settlement agreement in the case captioned PAYAM AHDOOT, on behalf of himself and all others similarly situated, and the general public, Plaintiff, v. BABOLAT VS NORTH AMERICA, INC., a Colorado Corporation and DOES 1 through 10, inclusive, Defendants. BRANDON CLARK, on behalf of himself and all others similarly situated, and the general public, Plaintiff, v. BABOLAT VS NORTH AMERICA, INC., a Colorado Corporation and DOES 1 through 10, inclusive, Defendants, CASE NO. CV13-02823 VAP, CONSOLIDATED WITH NO. CV13-7898 VAP, (C.D. Cal.). The judgment, a copy of which is available at http://is.gd/bftmbX from Leagle.com, provides, among other things, that Defendant Babolat VS North America, Inc. will pay $4,500,000 in total settlement funds into the Gross Settlement Fund (with credit for funds previously paid into the Gross Settlement Fund by Babolat) pursuant to the procedure and timing set forth in the Settlement Agreement after which Babolat and the Babolat Releasees will have no further liability for costs, expenses, interest, attorney's fees, or for any other charge, expense, or liability for the Released Claims. The Court approved these payments to be made by the Settlement Administrator pursuant to the terms of the Settlement Agreement and the Final Approval Order: Plaintiffs' Attorneys Fees: $1,125,000 Plaintiffs' Litigation Costs: $78,134.65 Plaintiffs' Incentive Awards: $5,000 to Plaintiff Ahdoot $5,000 to Plaintiff Clark Settlement Administration Costs: $194,524.78 After which the remainder of the Gross Settlement Fund (the "Net Settlement Fund") will be paid to Settlement Class Members with respect to Valid Claims, and to the extent settlement funds remain in the Net Settlement Fund after full payment to Settlement Class Members, the remainder, if any, distributed cy pres fifty percent (50%) to St. Jude's Children's Research Hospital and fifty percent (50%) to USTA Serves. The payments to be made by the Settlement Administrator will be made (unless stayed by Appeal) in respect of: Settlement Administration Costs: As incurred; Plaintiffs' Attorneys Fees, Plaintiffs' Litigation Costs and Plaintiffs' Incentive Awards: Within 7 business days after the 60th calendar day after entry of this judgment; Payments to Settlement Class Members: Within 81 calendar days after entry of this judgment; and Cy Pres Distribution: As soon as practical after the Settlement Administrator determines that the period for Settlement Class Members to negotiate their checks has ended and the sum remaining in the Net Settlement Account can be accurately ascertained. The Complaint is dismissed in its entirety, with prejudice. Payam Ahdoot, Plaintiff, represented by Amy Tai Wootton -- awootton@hamnerlaw.com -- Hamner Law Offices APC, Christopher J Hamner -- chamner@hamnerlaw.com -- Hamner Law Offices APC, Chad B Wootton -- chadwootton@woottonlawgroup.com -- Wootton Law Group LLP & Christopher Alexander Olsen -- caolsen@caolsenlawoffices.com -- Olsen Law Offices. Brandon Clark, Plaintiff, represented by Amy Tai Wootton, Hamner Law Offices APC, Christopher J Hamner, Hamner Law Offices APC, Chad B Wootton, Wootton Law Group LLP & Christopher Alexander Olsen, Olsen Law Offices. Babolat VS North America Inc, Defendant, represented by Brent E Johnson -- bjohnson@hollandhart.com -- Holland and Hart LLP. BAKER HUGHES: Faces "Williams" Suit Over Failure to Pay Overtime ---------------------------------------------------------------- Jonathan G. Williams, individually and on behalf of all other similarly situated v. Baker Hughes Oilfield Operations, Inc., Case No. 1:15-cv-00049-CSM (D.N.D., April 30, 2015), is brought against the Defendant for failure to pay overtime wages for work more than 40 hours in a workweek. Baker Hughes Oilfield Operations, Inc. is an oilfield services company that designs, manufactures, and supplies wellbore-related products and services for drilling, formation evaluation, completion and production, and reservoir technology. The Plaintiff is represented by: Steven A. Smith, Esq. Paul J. Lukas, Esq. Carl F. Engstrom, Esq. NICHOLS KASTER, PLLP 4600 IDS Center 80 South 8th Street Minneapolis, MN 55402 Telephone: (612) 256-3200 E-mail: smith@nka.com lukas@nka.com cengstrom@nka.com BAYOU WELL: Doesn't Pay Operator Properly, "Bittner" Suit Says -------------------------------------------------------------- Jason Bittner, Matthew Reynolds Jr. and Royce Wheatley Jr., on behalf of themselves and all others similarly situated v. Bayou Well Services, LLC, Case No. 4:15-cv-01142 (S.D. Tex., April 30, 2015), is brought against the Defendant for failure to pay its Equipment Operators proper overtime wages as required by the Fair Labor Standards Act. Bayou Well Services, LLC is a Texas limited liability company with its principal place of business in Houston, Harris County, Texas. Bayou provides Frac Crew services to oilfield owners and operators in Texas, Louisiana, Colorado, Wyoming and North Dakota. The Plaintiff is represented by: Michael Kevin Burke, Esq. LAW OFFICES OF MICHAEL M. GUERRA, BURKE & KHIRALLAH, LLP 3900 N. 10th St., Suite 850 McAllen, TX 78501 Telephone: (956) 682-5999 Facsimile: (888) 317-8802 E-mail: mburke@mmguerra.com BETTER FAMILIES: "Tarrago" Suit Seeks to Recover Unpaid OT Wages ---------------------------------------------------------------- Elio Tarrago, Eugenia Tarrago and other similarly situated individuals v. Better Families Through Tae Kwon Do, Inc., Mary Beth Klock-Perez, Diego Perez, and Karen E. Klock-Perez, Case No. 1:15-cv-21645 (S.D. Fla., April 30, 2015), seeks to recover unpaid overtime wages and damages pursuant to the Fair Labor Standard Act. The Defendants own and operate a martial arts school in Miami Dade County, Florida. The Plaintiff is represented by: Anaeli Caridad Petisco, Esq. Anthony Maximillien Georges-Pierre, Esq. REMER & GEORGES-PIERRE, PLLC Court House Tower Suite 2200, 44 West Flagler Street Miami, FL 33130 Telephone: (305) 416-5000 Facsimile: (305) 416-5005 E-mail: apetisco@rgpattorneys.com agp@rgpattorneys.com BIOLASE INC: Settlement Subject to Negotiation of Definitive Deal ----------------------------------------------------------------- Biolase, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on March 6, 2015, for the fiscal year ended December 31, 2014, that the settlement in a class action lawsuit is subject to the negotiation of a definitive settlement agreement and preliminary and final approval of the court. On August 23, 2013, a purported class action lawsuit entitled Brady Adams v. Biolase, Inc., et al., Case No. 13-CV-1300 JST (FFMx) was filed in the United States District Court for the Central District of California against BIOLASE and its then Chief Executive Officer, Federico Pignatelli, and its then Chief Financial Officer, Frederick D. Furry. On August 26, 2013, a purported class action lawsuit entitled Ralph Divizio v. Biolase, Inc., et al., Case No. 13-CV-1317 DMG (MRWx) was filed in the same court against BIOLASE, Messrs. Pignatelli and Furry, and its then President and Chief Operating Officer, Alexander K. Arrow. Each of the lawsuits alleges violations of the federal securities laws and asserts causes of action against the defendants under Sections 10(b) and 20(a) of the Exchange Act. In accordance with the Private Securities Litigation Reform Act of 1995, on December 10, 2013, the court entered an order consolidating the lawsuits, appointing a lead plaintiff and approving the lead plaintiff's selection of lead counsel. On February 24, 2014, the lead plaintiff filed a consolidated complaint against BIOLASE and Messrs. Pignatelli, Furry, and Arrow, alleging violations of the federal securities laws and asserting causes of action against the defendants under Sections 10(b) and 20(a) of the Exchange Act. The Company said, "On November 19, 2013, our Board received a letter from attorneys for purported shareholder David T. Long, demanding that our Board investigate, institute litigation, and take measures to redress and prevent alleged wrongdoing concerning the dissemination of certain allegedly false and misleading public disclosures made by BIOLASE between January 2013 and August 2013." "We believe that the claims contained in the lawsuits are without merit and we intend to vigorously defend against the claims. During the year ended December 31, 2013, we paid $250,000 for legal costs incurred in connection with these matters. No legal costs were incurred by us in connection with these matters during the year ended December 31, 2014. "The parties have reached an agreement in principle to settle the consolidated securities class action lawsuit, which is subject to the negotiation of a definitive settlement agreement and preliminary and final approval of the court. Although there can be no assurance that such agreement will be finalized, as of the date of the filing of this Form 10-K, management does not expect the Company to incur additional expenses related to this matter due to certain insurance coverage in place." BLUE WORLD: Removed "Roberts" Class Suit to W.D. Kentucky --------------------------------------------------------- The class action lawsuit styled Andrew Roberts, Stephanie Roberts, Leroy Brown, and Linda Brown, individually and on behalf of classes similarly situated persons v. Blue World Pools, Inc., Case No. 15-CI-01630, was removed from Jefferson County Circuit Court, Division 4 of Louisville, Kentucky to the U.S. District Court for the Western District of Kentucky, Louisville Division. The District Court Clerk assigned Case No. 3:15-cv-00335-TBR to the proceeding. The lawsuit is brought under the Truth in Lending Act. The Plaintiff is represented by: Aaron J. Bentley, Esq. James Robert Craig, Esq. CRAIG HENRY PLC 239 S. Fifth Street, Suite 1400 Louisville, KY 40202 Telephone: (502) 614-5962 x3 Facsimile: (502) 614-5968 E-mail: abentley@craighenrylaw.com jcraig@craighenrylaw.com The Defendant is represented by: Gregory E. Mayes Jr., Esq. STEPTOE & JOHNSON, PLLC 700 N. Hurstbourne Parkway, Suite 115 Louisville, KY 40222 Telephone: (502) 423-2061 Facsimile: (502) 423-2001 E-mail: gregory.mayes@steptoe-johnson.com - and - Nora C. Currens, Esq. STEPTOE & JOHNSON, PLLC 2525 Harrodsburg Road, Suite 300 Lexington, KY 40504 Telephone: (859) 255-7080 Facsimile: (859) 255-6903 E-mail: norrie.currens@steptoe-johnson.com CAB LOGISTICS: Faces "Travis" Suit Over Failure to Pay Overtime --------------------------------------------------------------- William Travis, individually and for others similarly situated v. Cab Logistics, Inc., Case No. 5:15-cv-00351 (W.D. Tex., April 30, 2015), is brought against the Defendants for failure to pay overtime wages for work performed in excess of 40 hours weekly. Cab Logistics, Inc. owns and operates an oil field services company doing business in Texas and New Mexico. The Plaintiff is represented by: Richard J. Burch, Esq. BRUCKNER BURCH PLLC 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Telephone: (713) 877-8788 Facsimile: (713) 877-8065 E-mail: rburch@brucknerburch.com CARNE CHOP: "Yucha" Suit Seeks to Recover Unpaid Overtime Wages --------------------------------------------------------------- Annette Yucha, on behalf of herself and on behalf of all others similarly situated v. Carne Chop House, Inc., Case No. 8:15-cv- 01038-EAK-TGW (M.D. Fla., April 30, 2015), seeks to recover unpaid overtime wages and damages pursuant to the Fair Labor Standard Act. Carne Chop House, Inc. owns and operates a restaurant in Florida. The Plaintiff is represented by: Brandon J. Hill, Esq. Luis A. Cabassa, Esq. WENZEL FENTON CABASSA, PA Suite 300, 1110 N Florida Ave Tampa, FL 33602 Telephone: (813) 224-0431 Facsimile: (813) 229-8712 E-mail: bhill@wfclaw.com lcabassa@wfclaw.com CEPHALON INC: Judge Dismisses Unjust Enrichment Class Action ------------------------------------------------------------ William B. Freeman, Esq. of Katten Muchin Rosenman LLP, in an article for The National Law Review, reports that the US District Court for the Eastern District of Pennsylvania recently denied class certification to a proposed class of third-party payors of prescription drugs. The plaintiffs brought a class action for unjust enrichment, claiming that Cephalon, Inc. improperly marketed a drug with limited approval by the US Food and Drug Administration (FDA), resulting in excessive payments for drugs that should not have been prescribed to the plaintiffs' members. Cephalon, a pharmaceutical company, purchased drug developer Anesta Corporation in 2000. One of the drugs Anesta developed was Actiq, a pain-reliever for cancer patients. Actiq was approved by the FDA, but only under Subpart H, a special categorization for effective but risky drugs, and only for certain cancer patients not effectively treated by other drugs. Manufacturers of Subpart H drugs are required to follow a Risk Management Program (RiskMAP) designed to ensure compliance with the limited approval. When Cephalon bought Anesta it amended the marketing plan for Actiq, which an internal audit by Cephalon determined was contrary to the RiskMAP (Cephalon later pleaded guilty to off-label promotion). The plaintiffs allege that by marketing outside what was allowed by the RiskMAP, Cephalon caused doctors to overprescribe Actiq, even though more effective and/or less expensive alternatives were available. Third-party payor plaintiffs sued Cephalon in 2007 alleging unjust enrichment. The District Court held that the plaintiffs' class of third-party payors could not be certified because individualized issues predominate for two reasons. First, the court determined that the unjust enrichment law of each plaintiffs' home state would apply, and not all states apply the same law to unjust enrichment claims. Second, the court held that the determination of unjust enrichment is, by nature, a fact-sensitive question because, under an unjust enrichment theory, all facts and circumstances of the case must be considered. Although the plaintiffs could allege certain elements commonly, they could not allege that each payment was unjust absent specific individualized facts. Because of differences in each physician's familiarity with Cephalon's marketing, physician judgment, patient response, and plaintiff decision-making, individual issues of fact predominated, and the plaintiffs' motion to certify the class was denied. In re Actiq Sales and Mktg. Practices Litig., Civil Action No. 07- 4492 (E.D. Pa. Mar. 23, 2015) CHERRY CONCRETE: "Johnson" Suit Seeks to Recover Unpaid OT Wages ---------------------------------------------------------------- Marcus Johnson and Stephen Pipersburgh, on behalf of themselves and all others similarly situated v. Cherry Concrete Removal, Ltd., and Cherry Companies Management, Inc., Case No. 4:15-cv- 01134 (S.D. Tex., April 29, 2015), seeks to recover unpaid overtime compensation, liquidated damages, attorneys' fees and costs, pursuant to the Fair Labor Standards Act. The Defendants own and operate a trucking business in Texas. The Plaintiff is represented by: Austin W. Anderson, Esq. ANDERSON2X, PLLC 819 N. Upper Broadway Corpus Christi, TX 78401 Telephone: (361) 452-1279 Facsimile: (361) 452-1284 E-mail: austin@a2xlaw.com CHICO'S FAS: Class Action Settlement Preliminarily Approved ----------------------------------------------------------- Chico's FAS, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on March 9, 2015, for the fiscal year ended January 31, 2015, that the Company was named as a defendant in a putative class action filed in February 2014 in the Superior Court of the State of California for the County of Sacramento: Toni Delfierro, et al, v. White House Black Market, Inc. The Complaint alleges numerous violations of California law related to wages, meal periods, rest periods, wage statements, and failure to reimburse business expenses, among other things. The Company denies the material allegations of the Complaint and believes that its policies and procedures for paying its employees comply with all applicable California laws. In mid-October, the Company and the plaintiffs agreed to settle this matter. The settlement has been preliminarily approved by the Court but is still subject to the review and final approval of the Court, which is not expected to occur until approximately mid-fiscal 2015. If finally approved by the Court, the settlement amount will not have a material adverse effect on the Company's consolidated financial condition or results of operations. CHIQUITA BRANDS: Pesticide Showers Poison Villagers, Suit Says -------------------------------------------------------------- Courthouse News Service reports that Chiquita continues to poison Guatemalan villages with "pesticide showers" and environmental destruction despite corporate claims that the company has become environmentally responsible, a customer claims in a federal class action. Tania Campbell sued Chiquita Brands International on April 17 in Federal Court. She seeks punitive damages for fraud by concealment, unjust enrichment, unfair competition and consumer law violations. Campbell claims that Chiquita advertises its bananas with a well- known blue Chiquita sticker, and advertises its "corporate social responsibility" and "code of conduct," through a slew of misrepresentations, among them: "We will protect natural ecosystems, including water, soil and air, by implementing sound and safe operating practices;" We will also work with suppliers to ensure that they adopt environmental practices when providing goods or services, and will incorporate environmental considerations into our purchase decisions;" "Planting tree 'screens' to help to keep agrichemicals where they need to be and away from people;" "Reforesting any land not used for banana production to eliminate soil erosion;" "We have discontinued routine, blanket applications, and we now apply pesticides only when and where necessary;" "We apply pesticides in ways that protect the health, safety, and well-being of our workers and the environment;" "We apply fertilizers only in small amounts." Campbell disputes all these claims, and others. She claims that in 2012 alone, Chiquita bought 639 million lbs. of bananas from the Guatemalan company COBIGUA -- approximately 95 percent of all the bananas COBIGUA sold that year. Her 39-page complaint names five Guatemalan villages, or "communities" that allegedly "suffer from water pollution and airborne exposure to toxic chemicals that are the result of defendant's production practices." She claims that "COBIGUA contaminates rivers and drinking water in the affected area with fertilizers, pesticides, fungicides, and organic matter;" That "COBIGUA mixes fertilizers into its irrigation system every 14 to 21 days and aerial fumigates its banana fields every 6 to 8 days using toxic chemicals like dithane, paraquat (gramoxone), and mocap (ethoprop);" She claims that "COBIGUA uses no buffer zone for aerial fumigation of plants that border schools and homes." In fact, Campbell says, COBIGUA's aerial fumigation and failure to respect buffer zones "results in toxic chemical residues visibly seen on the communities' school's roof and playground," that the airborne toxic chemicals have given children nausea, dizziness, vomiting, skin rashes, and other health problems, and that one study reported that "60 percent of those interviewed in the communities stated they have received an actual 'pesticide shower' during aerial fumigation with visible indication of white particulates on their arms and legs." She seeks class certification and punitive damages. The Plaintiff is represented by: Elaine Byszewski, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 301 North Lake Ave., Suite 203 Pasadena, CA 91101 Telephone: (213) 330-7149 Facsimile: (213) 330-7152 E-mail: elaine@hbsslaw.com CIMAREX ENERGY: Administration of Settlement Ongoing ---------------------------------------------------- Cimarex Energy Co. said in its Form 10-K/A Amendment No. 1 filed with the Securities and Exchange Commission on March 9, 2015, for the fiscal year ended December 31, 2014, that administration of the settlement is ongoing in the case, Hitch Enterprises, Inc. et al. v. Cimarex Energy Co. On December 11, 2012, Cimarex entered into a preliminary resolution of the Hitch Enterprises, Inc., et al. v. Cimarex Energy Co., et al. (Hitch) litigation matter for $16.4 million. Hitch is a statewide royalty class action pending in the Federal District Court in Oklahoma City, Oklahoma. The settlement was reached at a mediation, which occurred after the parties began to exchange information, including damage analyses, on November 16, 2012. On July 2, 2013, the Court entered a judgment approving the parties' settlement. The judgment became final and unappealable on August 2, 2013. Cimarex distributed the settlement proceeds pursuant to the Court's order in September 2013 and the administration of the settlement is ongoing. In the fourth quarter of 2012, we accrued $16.4 million for this matter. CINEMARK USA: Joseph Amey Case in Pretrial Discovery ---------------------------------------------------- Cinemark USA, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on March 6, 2015, for the fiscal year ended December 31, 2014, that the case Joseph Amey, et al. v. Cinemark USA, Inc., Case No. 3:13cv05669, In the United States District Court for the Northern District of California, San Francisco Division, is in pretrial discovery and no class action has been certified. The case presents putative class action claims for damages and attorney's fees arising from employee wage and hour claims under California law for alleged meal period, rest break, reporting time pay, unpaid wages, pay upon termination, and wage statements violations. The claims are also asserted as a representative action under the California Private Attorney General Act ("PAGA"). "We deny the claims, deny that class certification is appropriate and deny that a PAGA representative action is appropriate, and are vigorously defending against the claims," the Company said. "The case is in pretrial discovery, no class action has been certified, and no representative action has been quantified or recognized. We deny any violation of law and plan to vigorously defend against all claims. We are unable to predict the outcome of the litigation or the range of potential loss, if any; however, we believe that our potential liability with respect to such proceeding is not material in the aggregate to our financial position, results of operations and cash flows. Accordingly, we have not established a reserve for loss in connection with this proceeding." CIRQUE DU SOLEIL: Waiters File Class Action Over Tip Policy ----------------------------------------------------------- Julia Marsh, writing for New York Post, reports that around 40 waiters are suing Cirque du Soleil, claiming the performance company has stiffed them on tips at catered events. The lead plaintiff in the proposed class-action suit, Marshall Maor, says Cirque has relied on a "policy of unlawfully retaining employees gratuities" since 2009. The company charges customers a 7 to 20 percent mandatory fee for functions and then pockets the money, the suit says. But it doesn't use a disclaimer notifying customers that the service charge is not a gratuity for staff, according to the legal filing. "A reasonable customer would believe that the service charge was in fact a gratuity for [Maor] and [other] employees," according to the new Manhattan Supreme Court suit. Mr. Maor, who worked at Cirque's Randall's Island location in 2009, only made $11 an hour and didn't see a dime of gratuity, the suit says. The 33-year-old Bronx man primarily served food for the entertainment company for only one month, according to court papers. The case is for unspecified damages. The lawyers in the class action say they are still trying to find other servers, bussers, bartenders, food runners and hosts to join the case. A spokeswoman for Cirque du Soleil did not immediately comment. Cirque is also fending off a federal lawsuit filed last year in California by billionaire Alki David, who claims the company ripped off his hologram patent for the show "Michael Jackson: One." In 2004, Cirque paid an HIV-positive acrobat $600,000 after he filed a case claiming he was booted from the circus for fear the disease would spread to other performers. The gymnast, Matthew Cusick, said he had notified his employer he was HIV positive and rehearsed for months before getting canned. CITIGROUP INC: Faces "Korenblum" Suit Over Failure to Pay OT ------------------------------------------------------------ Paulina Korenblum, Fredy Giron, and Kenneth M. Webb, on behalf of themselves and all others similarly situated v. Citigroup, Inc., Case No. 1:15-cv-03383-JMF (S.D.N.Y., April 30, 2015), is brought against the Defendant for failure to pay overtime wages for work more than 40 hours per week. Citigroup, Inc. is a Delaware banking and financial services corporation with its headquarters located in New York, New York. The Plaintiff is represented by: Adam T. Klein, Esq. Christopher McNerney, Esq. Molly Anne Brooks, Esq. OUTTEN & GOLDEN, LLP 3 Park Avenue, 29th Floor New York, NY 10016 Telephone: (212) 245-1000 Facsimile: (212) 977-4005 E-mail: atk@outtengolden.com cmcnerney@outtengolden.com mbrooks@outtengolden.com - and - David J. Cohen, Esq. KOLMAN ELY PC 414 Hulmeville Ave Penndel, PA 19047 Telephone: (215) 750-3134 Facsimile: (215) 750-3138 E-mail: dcohen@kolmanlaw.net - and - Ryan F. Stephan, Esq. STEPHAN ZOURAS LLP 205 North Michigan Avenue, Suite 2560 Chicago, IL 60601 Telephone: (312) 233-1550 Facsimile: (312) 233-1560 E-mail: rstephan@stephanzouras.com CLUB EXPLORIA: Has Made Unsolicited Calls, "Miller" Suit Claims --------------------------------------------------------------- Mitchell Miller, individually and on behalf of all others similarly situated v. Club Exploria, LLC, d/b/a Exploria Resorts, Case No. 3:15-cv-00965-AJB-NLS (S.D. Cal., April 30, 2015), seeks to put an end on the Defendant's practice of placing unsolicited calls on the Plaintiff's cellular telephone using an automatic telephone dialing system, without prior written express consent. Club Exploria, LLC owns and operates a hotel-resort located at 25 Town Center Boulevard, Suite C, Clermont, Orlando, Florida, 34714. The Plaintiff is represented by: Abbas Kazerounian, Esq. Mona Amini, 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 mona@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 COLONIAL FINANCIAL: Faces Action Related to Cape Bancorp Merger --------------------------------------------------------------- Colonial Financial Services, Inc. said in its Form 8-K Report filed with the Securities and Exchange Commission on March 9, 2015, that on February 24, 2015, a complaint was filed against the Company and the members of its Board of Directors in the Superior Court of New Jersey, Law Division, Cumberland County, seeking class action status and asserting that the Company and the members of its Board had violated their duties to the Company's shareholders in connection with the proposed merger with Cape Bancorp, Inc. Cape Bancorp, Inc. was also sued, for supposedly aiding and abetting these alleged fiduciary breaches. On or about February 27, 2015, the complaint was supplemented to seek a temporary restraining order and preliminary injunction prohibiting consummation of the merger. The litigation is in its very early stages, and the Company's time to answer has not yet run. The Company believes the complaint and other applications are without merit, and intends to vigorously defend them. CROSS COUNTRY HEALTHCARE: Paid $0.8 Million to Plaintiff -------------------------------------------------------- Cross Country Healthcare, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on March 6, 2015, for the fiscal year ended December 31, 2014, that the Company paid $0.8 million to the plaintiff. On December 4, 2012, the Company's subsidiary, CC Staffing, Inc. (now known as Travel Staff, LLC) became the subject of a purported class action lawsuit (Alice Ogues, on behalf of herself and all others similarly situated, Plaintiffs, vs. CC Staffing, Inc., a Delaware corporation; and DOES 1-50, inclusive, Defendants) filed in the United States District Court, Northern District of California. Plaintiff alleged that traveling employees were denied meal periods and rest breaks, that they should have been paid overtime on reimbursement amounts, various other wage and hour claims, and that they are entitled to associated penalties. In 2013, the parties agreed to settle this lawsuit for $0.8 million with the understanding that such settlement is not an admission by the Company of any liability, negligence or wrong doing. The Court granted final approval of the settlement in September 2014 and during the fourth quarter of 2014 the Company paid $0.8 million to the plaintiff. DENDREON CORPORATION: Settlement Approval Hearing Held ------------------------------------------------------ Dendreon Corporation said in its Form 10-K Report filed with the Securities and Exchange Commission on March 6, 2015, for the fiscal year ended December 31, 2014, that the Delaware Court of Chancery entered an order that, among other things, scheduled a hearing on the proposed settlement for March 30, 2015 at 2:00 p.m. in Wilmington, Delaware and directed that notice of that hearing be given to stockholders. On November 6, 2014, Dendreon Corporation (the "Company") entered into a stipulation to settle certain stockholder class action and derivative litigation, subject to court approval. On January 16, 2015, the Delaware Court of Chancery entered an order that, among other things, scheduled a hearing on the proposed settlement for March 30, 2015 at 2:00 p.m. in Wilmington, Delaware and directed that notice of that hearing be given to stockholders, including by the filing of a Current Report on Form 8-K ("Form 8-K"). On January 22, 2015, the Company filed a Form 8-K reporting those developments, but the Form 8-K failed to attach the Notice of Pendency of Settlement of Action (the "Notice"). A copy of the Stipulation of Settlement, and its exhibits is available on the Company's website at: http://is.gd/ClIcwA DEUTSCHE BANK: Court Tosses Lorenz's Renewed Motion for TRO ----------------------------------------------------------- In CINDY KAY LORENZ and DAVID BRYAN LORENZ, Plaintiffs, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for MORGAN STANLEY ABS CAPITAL INC. TRUST 2006-HE4, et al., Defendants, CASE NO. 3:15-CV-00680-SI, (D. Ore.), the Court has reviewed Plaintiffs' Notice of Appeal for Relief from Stay Regarding Bankruptcy Appeal; Plaintiffs' First Amended Complaint; Plaintiffs' Renewed Motion for Temporary Restraining Order; Defendant Deutsche Bank's Objection to Plaintiff's Motion for TRO; and the Declaration of Robert E. Maloney in Support of Deutsche Bank's Objection. The Court construes Plaintiffs' Notice of Appeal for Relief from Stay Regarding Bankruptcy Appeal as seeking, in essence, the same relief that is sought in Plaintiffs' Renewed Motion for Temporary Restraining Order, and the Court said it will consider them together. In addition, in Plaintiffs' Renewed Motion for Temporary Restraining Order, the Plaintiffs asked the Court to consider their request in light of the putative class action lawsuit in the case of Paulson v. Fairway America Corp., et al., Case No. 1:14- cv-1544-CL (D. Or.), which is currently on appeal before the U.S. Court of Appeals for the Ninth Circuit. The Court has done so. Specifically, the Court has read U.S. District Judge Panner's Order dated February 11, 2015, adopting the Report and Recommendation of U.S. Magistrate Judge Clarke and dismissing Mr. Paulson's lawsuit with prejudice. The Court noted that the Ninth Circuit has not yet issued its decision in that appeal. Concerning Plaintiffs' Renewed Motion for Temporary Restraining Order, in order to show that a plaintiff is entitled to a temporary restraining order or other preliminary injunctive relief, a plaintiff must show, among other things, either that he or she is likely to succeed on the merits, Winter v. Natural Resources Defense Council, 555 U.S. 7, 22 (2008), or, alternatively, that there are serious questions going to the merits. "Based on the record herein, Plaintiffs have failed to make either showing," ruled District Judge Michael H. Simon in an order dated May 4, 2015, a copy of which is available at http://is.gd/LsZi9n from Leagle.com. Judge Simon held that Plaintiffs' Renewed Motion for Temporary Restraining Order is denied. To the extent that Plaintiffs' Notice of Appeal for Relief from Stay Regarding Bankruptcy Appeal is properly considered to be a motion for immediate relief, it is denied for the same reasons, he added. Cindy Kay Lorenz, Plaintiff, Pro Se. David Bryan Lorenz, Plaintiff, Pro Se. Deutsche Bank National Trust Company, Defendant, represented by Robert E. Maloney, Jr. -- maloneyr@lanepowell.com -- Lane Powell, PC & Skyler M. Tanner -- tanners@lanepowell.com -- Lane Powell, PC. DOMEX USA: "Abreu" Suit Seeks to Recover Unpaid Overtime Wages -------------------------------------------------------------- Jorge L. Abreu and other similarly-situated individuals v. Domex USA LLC and Roberto Lebron, Case No. 1:15-cv-21654-CMA (S.D. Fla., April 30, 2015), seeks to recover unpaid overtime wages and damages pursuant to the Fair Labor Standard Act. The Defendants own and operate a courier service company doing business in Miami-Dade County, Florida. The Plaintiff is represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 3100 South Dixie Highway, Suite 202 Miami, FL 33133 Telephone: (305) 446-1500 Facsimile: (305) 446-1502 E-mail: zep@thepalmalawgroup.com E*TRADE FINANCIAL: Rayner Suit Stayed Pending PFOF Action Rulings ----------------------------------------------------------------- District Judge Ronald M. Whyte signed a stipulation on May 4, 2015, staying the case captioned TY RAYNER, on Behalf of Himself and All Others Similarly Situated, Plaintiff, v. E*TRADE FINANCIAL CORPORATION and E*TRADE SECURITIES LLC, Defendant, CASE NO. 15-CV- 01384-RMW, (N.D. Cal.). The Plaintiff filed his Complaint on March 25, 2015. These cases (which were brought by different plaintiffs against different defendants than the Parties) contain allegations with respect to payment for order flow: Zola v. TD Ameritrade, Inc., D. Neb., 8:14-cv-288; Verdieck v. TD Ameritrade, Inc., D. Neb., 8:14-cv- 289; Lerner v. TD Ameritrade, Inc., D. Neb., 8:14-cv-325; Sarbacker v. TD Ameritrade Holding Corporation; D. Neb., 8:14-cv- 341; Lewis v. Scottrade, Inc., S.D. Cal. 3:14-cv-02926 (collectively, the "PFOF Actions"). Motions to dismiss are pending in each of the PFOF Actions. The court-approved stipulation, a copy of which is available at http://is.gd/InucBGfrom Leagle.com, provides that neither Party will be prejudiced by a stay pending resolution of the motions to dismiss in the PFOF Actions. The action will be stayed until decisions on the motions to dismiss are entered in each of the PFOF Actions. Defendants need not answer or otherwise respond to the Complaint during the pendency of the motions to dismiss in the PFOF Actions. Defendants will have 20 days to answer or otherwise respond to Plaintiff's Complaint following the issuance of decisions on the motions to dismiss in the PFOF Actions. The Parties will jointly advise the Court of the issuance of decisions on the motions to dismiss in the PFOF Actions within 5 days of the written decisions. The Case Management Conference currently set for July 14, 2015, is also vacated until the stay is lifted. TIMOTHY G. BLOOD -- tblood@bholaw.com -- THOMAS J. O'REARDON II -- toreardon@bholaw.com -- BLOOD HURST & O'REARDON, LLP, San Diego, CA. BRIAN J. ROBBINS -- brobbins@robbinsarroyo.com -- KEVIN A. SEELY -- kseely@robbinsarroyo.com -- ASHLEY P. PALMER -- apalmer@robbinsarroyo.com -- LEONID KANDINOV -- lkandinov@robbinsarroyo.com -- ROBBINS ARROYO LLP, San Diego, CA. JOHN K. LANDAY, MALCOLM B. ROBERTS, LANDAY ROBERTS LLP, San Diego, CA, Attorneys for Plaintiff. Faith Gay -- faithgay@quinnemanuel.com -- (Pro Hac Vice Appl. Pending), Marc Greenwald -- marcgreenwald@quinnemanuel.com -- R. Corey Worcester -- coreyworcester@quinnemanuel.com -- (Pro Hac Vice Appl. Pending), Julia Beskin -- juliabeskin@quinnemanuel.com -- (Pro Hac Vice Appl. To Be Filed), QUINN EMANUEL URQUHART & SULLIVAN, LLP, New York, New York. Patrick Doolittle -- patrickdoolittle@quinnemanuel.com -- QUINN EMANUEL URQUHART & SULLIVAN, LLP, San Francisco, California, Attorneys for Defendants. ENERGY RECOVERY: Faces "Sabatino" and "Mowdy" Actions ----------------------------------------------------- Energy Recovery, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on March 6, 2015, for the fiscal year ended December 31, 2014, that in January 2015, two stockholder class action complaints were filed against the Company in the Northern District of California, on behalf of Energy Recovery stockholders under the captions, Joseph Sabatino v. Energy Recovery, Inc. et al. and Thomas C. Mowdy v. Energy Recovery, Inc. et al. The complaints allege violations of Section 10(b), Rule 10b-5, and Section 20(a) of the Securities Exchange Act of 1934 and seek the recovery of unspecified monetary damages. "We are not able to estimate the loss, if any, due to the early state of this matter and the Company has not been served with these complaints," the Company said. EPIC WIRELINE: Faces "Herrera" Suit Over Failure to Pay Overtime ---------------------------------------------------------------- Justin Herrera, individually and on behalf of all others similarly situated v. Epic Wireline Services, LLC, Case No. 5:15-cv-00346 (W.D. Tex., April 29, 2015), is brought against the Defendant for failure to pay overtime wages for the hours worked in excess of 40 in a single workweek. Epic Wireline Services, LLC owns and operates a wireline services company that serves exploration and production companies throughout the Permian and Eagle Ford Shale regions. The Plaintiff is represented by: Andrew W. Dunlap, Esq. Lindsay R. Itkin, Esq. Michael A. Josephson, Esq. FIBICH, LEEBRON, COPELAND, BRIGGS & JOSEPHSON 1150 Bissonnet Houston, TX 77005 Telephone: (713) 751-0025 Facsimile: (713) 751-0030 E-mail: ADunlap@fibichlaw.com litkin@fibichlaw.com mjosephson@fibichlaw.com FALCON SKYCAP: Faces "Fisch" Suit Over Failure to Pay Overtime -------------------------------------------------------------- Rolando J. Fisch, individually and on behalf of all similarly situated v. Falcon Skycap Services Corp., Case No. 6:15-cv-00687 (M.D. Fla., April 29, 2015), is brought against the Defendant for failure to pay overtime wages in violation of the Fair Labor Standard Act. Falcon Skycap Services Corp. is a Florida corporation that is in the business of handling passengers' luggage at the airport. The Plaintiff is represented by: Bernard R. Mazaheri, Esq. Christina Jean Thomas, Esq. MORGAN & MORGAN, PA Ste 1600,20 N Orange Ave Orlando, FL 32802-4979 Telephone: (407) 420-1414 Facsimile: (954) 333-3515 E-mail: bmazaheri@forthepeople.com cthomas@forthepeople.com FORMFACTOR INC: Mediation Did Not Result in Settlement ------------------------------------------------------ FormFactor, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on March 6, 2015, for the fiscal year ended December 31, 2014, that parties in a class action lawsuit participated in a mediation during the third quarter of fiscal 2014, which did not result in a settlement. In August 2013, a former employee ("Plaintiff") filed a class action lawsuit against the Company in the Superior Court of California, alleging violations of California's wage and hour laws and unfair business practices on behalf of himself and all other similarly situated current and former employees at the Company's Livermore facilities from August 21, 2009 to the present. In February 2014, the Court granted the Company's motion to strike portions of Plaintiff's first amended complaint, clarifying the scope of the putative class. A second amended complaint has also been filed. Procedurally, the case is in the early stages of litigation and no defined class has been certified. The parties participated in a mediation during the third quarter of fiscal 2014, which did not result in a settlement. The Company currently believes that any settlement reached would be in an amount that is not material to the Company's financial statements. The Company denies the allegations contained in the lawsuit and, based on available information, believes it has significant defenses to the allegations of the lawsuit. If the matter is not settled, the Company could incur material attorneys' fees in defending the lawsuit. FURMANITE AMERICA: Faces "Christian" Suit Over Failure to Pay OT ---------------------------------------------------------------- Scott Christian, on behalf of himself and all others similarly situated v. Furmanite America, Incorporated, Case No. 2:15-at- 00524 (E.D. Cal., April 30, 2015), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standard Act. Furmanite America, Incorporated is a Virginia Corporation that provides a variety of products and services in the machining, piping, and customer engineering fields. The Plaintiff is represented by: Michael Lion Tracy, Esq. LAW OFFICE OF MICHAEL TRACY 2030 Main Street, Suite 1300 Irvine, CA 92614 Telephone: (949) 260-9171 Facsimile: (866) 365-3051 E-mail: mtracy@michaeltracylaw.com GENTIVA HEALTH: Settles Investor Class Action for $6.5 Million -------------------------------------------------------------- Michael Lipkin, writing for Law360, reports that home care company Gentiva Health Services Inc. agreed on April 3 to pay $6.5 million to settle a proposed investor class action accusing its executives of inflating Gentiva stock prices by overbilling Medicare, more than a year after a New York federal judge dismissed all but one defendant. The Los Angeles City Employees' Retirement System, the lead plaintiff, asked the court to preliminarily approve the settlement, which would free Gentiva and top former executives from liability. GIGA LTD: Faces "Cardona" Suit Over Failure to Pay Overtime Wages ----------------------------------------------------------------- Abraham Cardona, on behalf of himself and all those similarly situated v. Giga Ltd. d/b/a Ciao Bella Ristorante, Case No. 2:15- cv-00170 (N.D. Ind., April 30, 2015), seeks to recover unpaid overtime wages and damages pursuant to the Fair Labor Standard Act. The Defendants own and operate a restaurant located at 1514 U.S. 41, Schererville, IN 46375. The Plaintiff is represented by: Robert A. Hicks, Esq. MACEY SWANSON AND ALLMAN 445 N Pennsylvania St Suite 401 Indianapolis, IN 46204-1800 Telephone: (317) 637-2345 Facsimile: (317) 637-2369 E-mail: rhicks@maceylaw.com GMRI INC: Faces "Tyczynski" Suit Over Failure to Pay Overtime ------------------------------------------------------------- Karol Tyczynski, individually, and on behalf of other members of the general public similarly situated v. GMRI, Inc., d/b/a Red Lobster, Darden Restaurants, Inc., and Does 1 through 10, Case No. 1:15-at-00354 (E.D. Cal., April 30, 2015), is brought against the Defendants for failure to pay overtime wages in violation of the California Labor Code. The Defendants own and operate several restaurants in California and throughout the United States. The Plaintiff is represented by: Robert J. Drexler Jr., Esq. Matthew T. Theriault, Esq. Stan Karas, Esq. Bevin Pike, Esq. Jonathan LEE, Esq. CAPSTONE LAW APC 1840 Century Park East, Suite 450 Los Angeles, CA 90067 Telephone: (310) 556-4811 Facsimile: (310) 943-0396 E-mail: Drexler@capstonelawyers.com Matthew.Theriault@Capstonelawyers.com Stan.Karas@capstonelawyers.com Bevin.Pike@capstonelawyers.com Jonathan.Lee@CapstoneLawyers.com GOOGLE INC: Plaintiffs Drop Android Monopoly Class Action --------------------------------------------------------- Mikey Campbell, writing for Apple Insider, reports that plaintiffs in a class-action lawsuit against Google voluntarily dropped allegations that the company illegally created an Internet and mobile search monopoly through Android terms of use agreements. Law firm Hagens Berman filed notice with the Northern California District Court on April 3, announcing plaintiffs have withdrawn their antitrust suit against Google without prejudice. The original complaint dates back to May 2014, when two Android device owners sued Google over claims that its "secret" Mobile Application Distribution Agreements (MADA) restrictions artificially inflated smartphone costs by stifling competition. These distribution agreements were highly confidential and meant only to be viewed by attorneys. Further, MADA terms impeded growth in the U.S. search industry by snuffing out competing technologies, plaintiffs argued. Google allegedly forced manufacturers to bundle built-in Android apps like YouTube and GooglePlay under strict "all-or-nothing" conditions. The suit sought injunctive relief and damages under violation of both federal and state antitrust laws, including the Sherman Act, the Clayton Antitrust Act, California Cartwright Act and the California Unfair Competition Law. In February, however, Google successfully mounted arguments to dismiss an amended version of the complaint, a move that likely led to the April 3 voluntary withdrawal. An order handed down by Judge Beth Labson Freeman at the time agreed with Google's assertion the plaintiffs' claims were deficient on multiple counts, including a distinct lack of evidence supporting the theory that MADAs restricted consumer choice and hindered innovation. "For one, accepting Plaintiffs' argument would permit any consumer of Internet search to have standing to sue for injunctive relief, as the proposed class of Android OS device consumers is no different from the Apple device user or the computer search user when it comes to innovation and choice in the market for Internet search products," Judge Freeman wrote, adding later in her decision, "Defendant uses the MADAs to capitalize on the preference of consumers (like Plaintiffs) for the status quo, but this does not victimize them or restrict their ability to 'mak[e] free choices between market alternatives.'" After Google's motion to dismiss was granted, plaintiffs were left to rework claims under narrow constraints addressing only the Sherman Act and California's Unfair Competition Law. April 3 was the prescribed due date to file a second amended complaint. GOOGLE INC: Judge Tosses Class Action Over In-App Purchases ----------------------------------------------------------- Y. Peter Kang, Joe Van Acker and Allison Grande, writing for Law360, report that a California federal judge on April 3 refused to certify a proposed class action accusing Google Inc. of enticing kids into making in-app purchases without their parents' permission, ruling that plaintiffs failed to show that a class action was the best way to resolve their claims. Google had argued the putative class action brought by Ilana Imber-Gluck in March 2014 should be denied certification because relief through the tech giant's settlement with the U.S. Federal Trade Commission was already available and pursuit of a class action would likely result in a reduced recovery because of administrative costs and attorneys' fees. The plaintiffs argued in March that while some potential class members would receive a full refund from Google under the FTC deal and would therefore be ineligible for compensatory damages, that shouldn't affect members who weren't part of the settlement. U.S. District Judge Ronald M. Whyte sided with Google, saying the company's arguments were more persuasive. "Because the FTC settlement provides nearly all, if not all, of the possible relief sought in the [first amended complaint], maintaining a class action for those class members who opt-out of the FTC refunds in order to pursue the possibility of punitive damages is not 'superior to other available methods for fairly and efficiently adjudicating the controversy,'" the judge wrote in the seven-page order. The April 3 ruling effectively brings an end to a suit that Google said was filed well after the FTC had already launched an industrywide investigation and months after Apple Inc. reached a $32.5 million settlement with the agency over the same issues raised in this case. Google had suggested that the plaintiffs simply copied the FTC's allegations and said its "comprehensive" settlement with the government already provides full restitution to consumers whose children made unauthorized purchases through Google Play. The company had also argued that the Ninth Circuit 's 1975 ruling in Kamm v. California City Development Co. established that the proposed class shouldn't be certified because a "prolonged and expensive" class action isn't a better means of resolving their claims than its settlement. The plaintiffs countered that Google's interpretation of the case was overreaching and claimed that discovery is necessary to determine whether the company's conduct warrants punitive damages. On April 3 Judge Whyte said plaintiffs did not present any argument as to why Kamm shouldn't be applied in this case. "The only factor plaintiffs do quibble with is the 'expense to defendants,'" the judge wrote. "The court finds that it is appropriate to consider the duplicative cost to Google of defending against this class action in addition to the FTC investigation, as explicitly directed by the Ninth Circuit." Google is represented by John E. Schmidtlein and James H. Weingarten -- jweingarten@wc.com -- of Williams & Connolly LLP and Corey W. Roush -- corey.roush@hoganlovells.com -- J. Robert Robertson -- robby.robertson@hoganlovells.com -- Logan M. Breed and Megan Dixon of Hogan Lovells. The plaintiffs are represented by Todd D. Carpenter of Carpenter Law Group, James R. Patterson of Patterson Law Group, Benjamin J. Sweet and Edwin J. Kilpela Jr. of Carson Lynch Ltd., and Shannon J. Carson -- scarson@bm.net -- and Patrick F. Madden -- pmadden@bm.net -- of Berger & Montague PC. The case is Imber-Gluck et al. v. Google Inc., case number 5:14- cv-01070, in the U.S. District Court for the Northern District of California. GREAT LAKES DREDGE: Parties Reached Deal in Securities Class Suit ----------------------------------------------------------------- Great Lakes Dredge & Dock Corporation said in its Form 10-K Report filed with the Securities and Exchange Commission on March 6, 2015, for the fiscal year ended December 31, 2014, that parties have reached an agreement in principle to settle a securities class action. On March 19, 2013, the Company and three of its current and former executives were sued in a securities class action in the Northern District of Illinois captioned United Union of Roofers, Waterproofers & Allied Workers Local Union No. 8 v. Great Lakes Dredge & Dock Corporation et al., Case No. 1:13-cv-02115. The lawsuit, which was brought on behalf of all purchasers of the Company's securities between August 7, 2012 and March 14, 2013, primarily alleges that the defendants made false and misleading statements regarding the recognition of revenue in the demolition segment and with regard to the Company's internal control over financial reporting. This suit was filed following the Company's announcement on March 14, 2013 that it would restate its second and third quarter 2012 financial statements. Two additional, similar lawsuits captioned Boozer v. Great Lakes Dredge & Dock Corporation et al., Case No. 1:13-cv-02339, and Connors v. Great Lakes Dredge & Dock Corporation et al., Case No. 1:13-cv-02450, were filed in the Northern District of Illinois on March 28, 2013, and April 2, 2013, respectively. These three actions were consolidated and recaptioned In re Great Lakes Dredge & Dock Corporation Securities Litigation, Case No. 1:13-cv-02115, on June 10, 2013. The plaintiffs filed an amended class action complaint on August 9, 2013, which the defendants moved to dismiss on October 8, 2013. After briefing and oral argument by the parties, the court entered an order on October 21, 2014 denying that motion to dismiss. The parties have reached an agreement in principle to settle this action. Once finalized, the settlement will be presented to the court for preliminary approval. The settlement is expected to be paid by insurance. HIGHER ONE: Consumer Class Action Settlement Becomes Final ---------------------------------------------------------- Higher One Holdings, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on March 6, 2015, for the fiscal year ended December 31, 2014, that no appeals of the Court judgement were filed and the settlement has now become final in the Consumer Class Action. HOI and HOH were defendants in a series of putative class action lawsuits filed in 2012. The Judicial Panel on Multidistrict Litigation transferred all of these cases to the District of Connecticut for coordinated or consolidated pretrial proceedings. The proceedings are referred to as the "In re Higher One OneAccount Marketing and Sales Practices Litigation" or the "MDL." Plaintiffs filed a consolidated amended complaint in the MDL that generally alleged, among other things, violations of state consumer protection statutes (predicated, in part, on alleged violations of ED rules and violations of the federal Electronic Funds Transfer Act) and various common law claims. The Company said, "On April 22, 2013, we filed a motion to dismiss the case, which the court denied as moot on March 11, 2014 in light of the parties' settlement." "In October 2013, we reached an agreement in principle on the key terms of a settlement that would resolve all of the above class action litigation that was filed against us in 2012. In February 2014, we executed a settlement agreement, the terms of which included a payment of $15.0 million to a settlement fund, an agreement to pay the cost of notice to the class, and an agreement to make and/or maintain certain practice changes. We made the payment of $15.0 million to the settlement fund in February 2014. On June 2, 2014, the court issued an order preliminarily approving the settlement, directing that notice of the settlement be sent to the class, setting relevant filing deadlines, and scheduling a final fairness hearing for November 24, 2014. On December 15, 2014, the Court granted final approval of the settlement. The Court also entered judgment on that day. No appeals of the judgment were filed, and the settlement has now become final. "During the year ended December 31, 2013, we recorded an accrual of $16.3 million to reflect the estimated cost of the resolution, inclusive of additional legal and other administrative costs, based on the agreement in principle. This estimate is consistent with our current cost estimate based on the final, approved settlement agreement." HIGHER ONE: Deadline to Respond to Securities Action Due -------------------------------------------------------- Higher One Holdings, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on March 6, 2015, for the fiscal year ended December 31, 2014, that deadline to respond to the Securities Class Action was March 20, 2015. On May 27, 2014, a putative class action captioned Brian Perez v. Higher One Holdings, Inc., No. 3:14-cv-755-AWT, was filed by HOH shareholder Brian Perez in the United States District Court for the District of Connecticut. On December 17, 2014, Mr. Perez was appointed lead plaintiff. On January 20, 2015, Mr. Perez filed an amended complaint. HOH former shareholder Robert Lee was added as a named plaintiff in the amended complaint. HOH and certain employees and board members have been named as defendants. Mr. Perez and Mr. Lee generally allege that HOH and the other named defendants made certain misrepresentations in public filings and other public statements in violation of the federal securities laws and seek an unspecified amount of damages. Mr. Perez and Mr. Lee seek to represent a class of any person who purchased HOH securities between August 7, 2012 and August 6, 2014. For each defendant that has been served the deadline to respond to the complaint currently is March 20, 2015. HOH intends to vigorously defend itself against these allegations. HOH is currently unable to predict the outcome of this lawsuit and therefore cannot determine the likelihood of loss nor estimate a range of possible loss. HUGOTON ROYALTY: No Updates in Roderick Trust Action ---------------------------------------------------- In September 2008, a royalty class action lawsuit was filed against XTO Energy styled Wallace B. Roderick Revocable Living Trust, et al. v. XTO Energy Inc. in the District Court of Kearny County, Kansas. The case was removed to federal court in Wichita, Kansas. The plaintiffs allege that XTO Energy has improperly taken post production costs from royalties paid to the plaintiffs from wells located in Kansas, Oklahoma, and Colorado; later reduced to Kansas. The case was certified as a class action in March 2012. XTO Energy filed an appeal of the class certification to the 10th Circuit Court of Appeals on April 11, 2012 which was granted on June 26, 2012. The court reversed the certification of the class and remanded the case back to the trial court for further proceedings. In its pleadings, the plaintiff has alleged damages in excess of $42.5 million. No updates were provided in Hugoton Royalty Trust's Form 10-K Report filed with the Securities and Exchange Commission on March 6, 2015, for the fiscal year ended December 31, 2014. HUGOTON ROYALTY: No Updates in Chieftain Royalty Action ------------------------------------------------------- In December 2010, a royalty class action lawsuit was filed against XTO Energy styled Chieftain Royalty Company v. XTO Energy Inc. in Coal County District Court, Oklahoma. XTO Energy removed the case to federal court in the Eastern District of Oklahoma. The plaintiffs allege that XTO Energy wrongfully deducted fees from royalty payments on Oklahoma wells, failed to make diligent efforts to secure the best terms available for the sale of gas and its constituents, and demand an accounting to determine whether they have been fully and fairly paid gas royalty interests. The case was certified as a class action in April 2012. XTO Energy filed an appeal of the class certification to the 10th Circuit Court of Appeals on April 26, 2012 which was granted on June 26, 2012. The court reversed the certification of the class and remanded the case back to the trial court for further proceedings. No updates were provided in Hugoton Royalty Trust's Form 10-K Report filed with the Securities and Exchange Commission on March 6, 2015, for the fiscal year ended December 31, 2014. HYBRID CONCRETE: Faces "Bello" Suit Over Failure to Pay Overtime ---------------------------------------------------------------- Miguel Antonio Jarquin Bello, Cesar Augosto Matute, and all others similarly situated v. Hybrid Concrete Structures, LLC, Gerry P. Harkins, Case No. 1:15-cv-21629 (S.D. Fla., April 29, 2015), is brought against the Defendants for failure to pay overtime wages for work performed in excess of 40 hours weekly. The Defendants own and operate a construction company that regularly transacts business within Dade County, Florida. The Plaintiff is represented by: Jamie H. Zidell, Esq. J.H. ZIDELL, PA 300 71st Street, Suite 605 Miami Beach, FL 33141 Telephone: (305) 865-6766 Facsimile: 865-7167 E-mail: ZABOGADO@AOL.COM IBEX GLOBAL: Call Center Workers File Class Action in Tennessee --------------------------------------------------------------- Torsten Ove, writing for Pittsburgh Post-Gazette, reports that several thousand people who work or used to work at a call center in Moon operated by Washington, D.C.-based IBEX Global could be eligible for money as part of a federal class-action suit in Tennessee. Workers at the marketing company's call center in Spring Hill, Tenn., sued IBEX in October, alleging that the company made them work extra time without being paid. The suit has been designated a nationwide class-action since IBEX has call centers around the country and some 20,000 workers could be part of the class, said David Garrison, a Nashville attorney representing the plaintiffs. Mailings were sent to them in March to ask if they wanted to join the suit. Mr. Garrison said the center in Pittsburgh is one of the largest in the company and the affected class is about 4,000 former and current employees. Call centers typically have high turnover, so many of those who might join the suit likely worked there for a short time. Those eligible had to have worked at IBEX from Oct. 9, 2011, to now. The original complaint was filed on behalf of Mary Andrews, Earvin Kyles and others against TRG Customer Solutions, which was IBEX's earlier name. The workers said IBEX had a companywide policy that forced them to come in 15 minutes early to boot up computers and check emails, but they weren't paid for that time. Making the employees work without paying them violates the Fair Labor Standards Act of 1938, according to the suit. The plaintiffs are seeking unpaid wages and damages, and the parties are in talks. "Hopefully the company will be willing to negotiate a settlement," Mr. Garrison said. Nashville lawyer Andrew Naylor, who represents IBEX, said his client doesn't discuss pending litigation. In court papers, the company argued that it has paid all of its employees fairly for all time worked. INFORMATICA CORP: Being Sold for Too Little to Italics, Suit Says ----------------------------------------------------------------- Courthouse News Service reports that directors are selling Informatica too cheaply through an unfair process to Italics Inc., for $48.75 a share or $5.3 billion, shareholders claim in Delaware Chancery Court. INNERWORKINGS INC: Motion to Dismiss Van Noppen Complaint Pending ----------------------------------------------------------------- InnerWorkings, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on March 6, 2015, for the fiscal year ended December 31, 2014, that the motion to dismiss the Van Noppen complaint for failure to state a claim is currently pending. In February 2014, following the Company's February 2014 announcement of its intention to restate certain historical financial statements, an individual filed a putative securities class action complaint in the United States District Court for the Northern District of Illinois entitled Van Noppen v. InnerWorkings et al. The complaint, as amended in July 2014, alleges that the Company and certain executive officers violated federal securities laws by making materially false or misleading statements or omissions, and by engaging in a scheme to defraud purchasers of securities, relating to the Company's financial results and prospects. The purported misstatements and scheme relate to the Company's inside sales initiative and the Productions Graphics business based in France. The complaint seeks unspecified damages, interest, attorneys' fees and other costs. The Company and individual defendants dispute the claims and intend to vigorously defend the matter. On September 29, 2014, the Company and individual defendants filed a motion to dismiss the complaint for failure to state a claim, and this motion is currently pending. INTERNATIONAL INTERACTIVE: Has Made Unsolicited Calls, Suit Says ---------------------------------------------------------------- Mitchell Miller, individually and on behalf of all others similarly situated v. International Interactive Group, Inc. d/b/a Travel IIG, Case No. 3:15-cv-00966-LAB-JLB (S.D. Cal., April 30, 2015), seeks to put an end on the Defendant's practice of placing unsolicited calls on the Plaintiff's cellular telephone using an automatic telephone dialing system, without prior written express consent. International Interactive Group, Inc. is a Florida Corporation with a headquarters at 2013 Kensington Run Drive. International provides promotional vacation packages. The Plaintiff is represented by: Abbas Kazerounian, Esq. Mona Amini, 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 mona@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 INTUIT INC: Faces "Diaz" Class Suit Over Lax Security at TurboTax ----------------------------------------------------------------- Arvin Temkar at Courthouse News Service reports that TurboTax maker Intuit may have allowed cybercriminals to file "thousands of fraudulent tax returns" for "billions of dollars" by hacking into efilings, a class action claims in California Federal Court. Lead plaintiffs Christine Diaz and Michelle Fugatt claim Intuit did not take reasonable security measures to prevent criminals from filing fake tax returns using stolen information. According to the April 20 complaint, the IRS paid $5.8 billion in tax refunds in 2013 that it later discovered were filed fraudulently. The plaintiffs claim security experts for years called upon Intuit to enhance its security features by implementing a two-step authentication process, but the company didn't do so until February this year, when a spike in fraudulent e-filings forced TurboTax to halt transmission of state tax returns for 24 hours. They claim Intuit did not implement cyber security measures to combat data breaches into its own systems, despite the publicity of recent hacks to other companies. One of the plaintiffs' attorneys, David Wright with McCuneWright in Redlands, said it's not yet clear whether any fraudulent filings stemmed from hacks into Intuit's system. But the plaintiffs cite whistleblower reports that "the company had made millions of dollars in knowingly processing state and federal tax refunds" filed by thieves. "Further, in March 2015, Intuit announced that it had also received inquiries from the U.S. Department of Justice and Federal Tax Commission regarding the sudden surge in fraudulent filings submitted through TurboTax," according to the complaint. The plaintiffs seek damages for unfair competition, violation of California's Customer Records Act, aiding and abetting fraud, negligent enablement of third-party imposter fraud, negligence and breach of contract. An Intuit spokeswoman said the company does not comment on pending litigation. K&K ASSISTED: Faces "Williams" Suit Over Failure to Pay Overtime ---------------------------------------------------------------- Charles Williams, George Ruffin, and Wanda Turner, on behalf of themselves and all others similarly situated v. K&K Assisted Living LLC, K&K Assisted Living #1 LLC, K&K Assisted Living #2 LLC, and K&K Assisted Living #6 LLC, Case No. 2:15-cv-1156-GAD-EAS (E.D. Mich., April 30, 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 multiple group homes where mentally disabled individuals live and receive 24-hour care. The Plaintiff is represented by: Philip J. Goodman, Esq. PHILIP J. GOODMAN, PC 280 N. Old Woodward Avenue Suite 407 Birmingham, MI 48009-5394 Telephone: (248) 647-9300 Facsimile: (248) 647-8481 E-mail: pjgoodman1@aol.com KRAFT FOODS: Faces Class Action Over Alleged Market Manipulation ---------------------------------------------------------------- Ed Beeson, writing for Law360, reports that Kraft Foods Group Inc. and Mondelez Global LLC on April 2 were hit with a class action claim accusing the global food giants of harming futures traders through an alleged market manipulation scheme spelled out in a recent U.S. Commodity Futures Trading Commission lawsuit. In a complaint filed in Chicago federal court, plaintiff Harry Ploss of Addison, Texas, says he is suing Kraft and Mondelez, and is seeking to represent others who are similarly situated, over their alleged scheme to manipulate the price of wheat commodities and futures in late 2011, during a period when the grain was commanding high market prices. As first detailed in a CFTC suit filed on April 1, officials at Kraft and Mondelez -- then a single company called Kraft Foods Inc. -- allegedly engineered a scheme aimed at driving down the cash price for a variety of soft red winter wheat while widening the spreads between futures contracts expiring in December 2011 and March 2012. The alleged scheme involved Kraft taking a $90 million long position on wheat futures expiring December 2011, despite the fact that it did not have the capacity to take delivery of such quantities of wheat and despite the fact that only the wheat available in the cash market met the company's strict manufacturing and transportation standards, Mr. Ploss said in his complaint. "In stark contrast to its prior history and to commercially sound conduct, defendants plunged into the December 2011 futures contract and took substantial deliveries," attorneys for Mr. Ploss wrote in their complaint. "As defendants well knew, the deliveries they took on the December 2011 wheat futures contracts would not and did not provide Kraft with the right wheat, at the right time, in the right place." But, according to the CFTC and Mr. Ploss, the strategy nonetheless worked, as it enabled Kraft to earn profits or see savings worth $5.4 million. On the flipside, Mr. Ploss claims he lost some $12,250 because of Kraft and Mondelez's alleged misconduct, which involved the wheat variety used in the manufacture of products such as Oreos, Ritz crackers and Wheat Thins. Mr. Ploss claims that on Nov. 29, 2011, when Kraft's long position on wheat futures had reached its "zenith" and had "seriously distorted prices," he himself closed out a spread position by buying up 20 wheat futures contracts for December 2011 delivery and selling 20 contracts for March 2012 delivery. "That is, plaintiff's small spread position was the opposite of defendants' huge spread position, and plaintiff liquidated just as defendants' opposite position reached its greatest size," Mr. Ploss wrote. "Defendants' unlawful conduct proximately caused injury and actual damages to plaintiff and class members." Mr. Ploss alleges Kraft and Mondelez violated Commodity Exchange Act rules against market manipulation and unjustly enriched themselves. He says he believes there may be hundreds, if not thousands or more members of the potential class, and that he is seeking class certification, plus damages and prejudgment interest for their alleged violations of the law and unjust enrichment, as well as attorney fees. Representatives for Kraft and Mondelez declined to comment on the lawsuit. Kraft Foods split into two in October 2012, spinning off its snack food lines into the newly formed Mondelez. In a February U.S. Securities and Exchange Commission filing, the company said it expects to bear the vast majority of any financial sanction the CFTC may impose in its case. Mr. Ploss is represented by Marvin A. Miller of Miller Law LLC and Christopher Lovell -- CLovell@lshllp.com -- Christopher M. McGrath -- CMcGrath@lshllp.com -- and Amanda N. Miller of Lovell Stewart Halebian Jacobson LLP. The case is Harry Ploss v. Kraft Foods Group Inc. et al, case number 1:15-cv-02937, in U.S. District Court for the Northern District of Illinois Eastern Division. LIBERTY TAX: ERC Class Action in Early Procedural Stage ------------------------------------------------------- Liberty Tax, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on March 6, 2015, for the quarterly period ended January 31, 2015, the ERC class action litigation is at an early procedural stage. The Company was sued in November 2011 in federal courts in Arkansas, California, Florida, and Illinois, and additional lawsuits were filed in federal courts in January 2012 in Maryland and North Carolina, in February 2012 in Wisconsin, and in May 2012 in New York and Minnesota. In April 2012, a motion to consolidate all of the then-pending cases before a single judge in federal court in the Northern District of Illinois was granted, and in June 2012, the plaintiffs filed a new complaint in the consolidated action. The Company said, "The consolidated complaint alleges that our refund transfer products formerly called electronic refund checks ("ERC") represent a form of refund anticipation loan ("RAL") because the taxpayer is "loaned" the tax preparation fee, and that the refund transfer product is, therefore, subject to federal truth-in-lending disclosure and state law requirements regulating RALs. The plaintiffs also allege disclosure violations related to the ERC fees paid by RAL customers. The plaintiffs, therefore, allege violations of state-specific RAL and other consumer statutes. The lawsuit purports to be a class action, and the plaintiffs allege potential damages in excess of $5.0 million, but the Company may seek damages from one of the providers of financial products that designed the programs and related disclosures that are the subject of the active claims that have not been found subject to arbitration." "The Company is aware that virtually identical lawsuits have been filed against several of its competitors. The Company has concluded that a loss related to this case is probable and, as such, it has accrued a loss contingency related to this matter. The Company believes it has meritorious defenses to the claims in this case and intends to defend the case vigorously, but there can be no assurances as to the outcome or the impact on the Company's consolidated financial position, results of operations, and cash flows. The case is at an early procedural stage, and the Company is presently appealing a ruling related to the ability to arbitrate certain of the claims. The parties are presently engaged in mediation as part of the process required by the appellate court." LIBERTY TAX: TCPA Case Settlement Subject to Final Negotiations --------------------------------------------------------------- Liberty Tax, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on March 6, 2015, for the quarterly period ended January 31, 2015, that the settlement in the TCPA class action litigation remains subject to the final negotiation of a settlement agreement. The Company was sued in September 2013 in federal court in Illinois in connection with alleged violations of the Telephone Consumer Protection Act. Plaintiff alleges that the Company inappropriately made auto dialed telephone calls to cellular telephones, seeks the certification of a nationwide class action, and claims statutory damages of $500-$1,500 per violation. The Company tendered the defense of this litigation to a third party entity that had contracted with the Company to solicit potential franchisees, and that third party entity acknowledged its defense and indemnification obligations to the Company. However, because the third party contractor may not have the financial resources to satisfy its defense and indemnity obligations, the Company concluded that it could not rely fully upon the fulfillment of those obligations. In September 2014, the parties reached a tentative settlement of this litigation for $3.0 million, but that settlement remains subject to the final negotiation of a settlement agreement, approval of the court, and other conditions typical in a class action. The Company believes that the net impact of the settlement will be reduced by payments made and expected to be made by principals of the third party contractor. MACHINE ZONE: Faces "Mason" Class Suit Over Loss in Game of War --------------------------------------------------------------- Thousands of video game players have lost millions of dollars in a casino component of Machine Zone's popular mobile-device app "Game of War," a federal class action alleges, reports Daniel W. Staples at Courthouse News Service. Though the app is "free-to-play" on Android and Apple mobile devices, it has generated more than $600 million in revenue for Delaware-based Machine Zone. Lead plaintiff Mia Mason, a Maryland resident, claims to have downloaded the game early last year. By January 2015, she "lost more than $100 wagering at defendant's casino," the complaint states. Other players get soaked for more, Mason says, pointing to a report that says one child "lost over 25,000 (approximately $27,000) of his parents' money by playing 'Game of War' and wagering at the Casino." The "casino" is a game of chance in which players can wager "gold" and "chips" that are purchased at a starting price of $4.99, Mason says. Though "players can use gold to improve their virtual towns and hasten their advancement in the game, these benign uses of gold merely obfuscate the unlawful game of chance Machine Zone operates," the complaint alleges. "Players routinely wager hundreds of dollars for the chance of winning valuable prizes," Mason adds. Prizes allegedly "vary in value from 'resources' that can be used to advance game play (e.g., wood or stone) to high-value items such as additional casino chips or gold." Once a player wins something of value in the casino, he can "cash out" by listing his "Game of War" accounts on eBay, PlayerAuctions.com or another secondary market, according to the complaint. Mason says many "Game of War" accounts are selling there for hundreds or even thousands of dollars. "Free-to-play" games of chance allow app developers like Machine Zone to exploit "the same psychological triggers as casino operators," the complaint states. Mason points to an article on Badgeronline.com that says, "games may influence 'feelings of pleasure and reward' . . . similar to that which you could develop in casinos and betting shops." Like casinos, "the free-to-play developers rely on a small portion of their players to provide the majority of their profits," the complaint states. "These 'whales,' as they're known in casino parlance, account for just '0.15 percent of players,'" but provide "over 50 percent of mobile game revenue." Mason notes that one member of the Belgian Gaming Commission "recently decried 'Game of War's' Casino as illegal gambling, stating that Machine Zone was targeting underage consumers and encouraging them to gamble due to the 'casino elements' within the game." "Unfortunately, such games have eluded regulation in the United States," the complaint continues. "As a result, . . . defendant's 'Game of War' Casino has thrived and thousands of consumers have lost millions of dollars by unwittingly gambling in defendant's unlawful game of chance." Mason notes that "free-to-play games" encourage consumers to download and play games for free while selling many low-cost items within the game itself. "Developers aim to recoup their costs (and make a profit) by selling thousands of 'in-game' items that start at $0.99 (purchases known as 'micro-transactions') instead of charging an up-front fee," the complaint states. "In 2012, free-to-play games of chance generated over $1.6 billion in worldwide revenue and are expected to grow to over $2.4 billion by the end of 2015." Alleging unfair competition, unjust enrichment and other claims, the class seeks to recover ill-gotten gains, damages and losses. The class's attorney did not return a call seeking comment. Machine Zone also did not return a request for comment. The class is represented by: Maria Simon, Esq. GELLER LAW GROUP 4000 Legato Road, Suite 1100 Fairfax, VA 22033 Telephone: (703) 687-6188 Facsimile: (703) 259-8584 E-mail: rgeller@thegellerlawgroup.com MARICOPA, AZ: Sheriff Joe Arpaio Faces Civil Contempt Hearing ------------------------------------------------------------- Jamie Ross at Courthouse News Service reports that Sheriff Joe Arpaio faces a civil contempt hearing on the week of April 20 on allegations that "America's Toughest Sheriff" violated a court order requiring him to stop racially profiling Latinos. The hearings were to examine whether Maricopa County Sheriff Joe Arpaio and four of his officers misrepresented the content of the court order, which required the Sheriff's Office to turn over data from traffic stops and to train deputies not to make unconstitutional stops. In 2007, five Latinos and the organization Somos America filed a class action against Arpaio and the Sheriff's Office after five people said they were racially profiled by deputies and detained during traffic stops or crime suppression sweeps. U.S. District Judge G. Murray Snow agreed, finding in 2013 that Arpaio and the agency's actions violated the plaintiffs' Fourth Amendment rights. "The MCSO did not understand [racial profiling], in an immigration context, to prohibit the use of race as a factor among others in making a law enforcement decision," Snow wrote. "Thus, MCSO deputies could consider race as one factor in stopping a vehicle or initiating an investigation so long as race was not the sole basis on which deputies made that decision." A court-appointed monitor, Robert Warshaw, was ordered to work with the plaintiffs and the Sheriff's Office to bring it into compliance with Snow's order. The agency's practices were questioned again when Chief Deputy Jerry Sheridan was videotaped during an October 2013 training session for deputies "where he referred to this court's order as 'ludicrous' and 'crap,' and incorrectly stated that this court had found only a small number of officers had unconstitutionally used race as a factor in traffic stops," Snow wrote in an order to show cause why the hearing should not be held. The recording, which did not surface until 2014, also showed Sheridan and Arpaio "directing deputies not to take seriously the court's requirement that they track the race and ethnicity of individuals whom they stop." Also uncovered in 2014 was information that former deputy Ramon "Charley" Armendariz secretly recorded thousands of traffic stops and confiscated identification cards, drugs and license plates from the stops, which he then stored in his home. Warshaw found that the Sheriff's Office's investigation of Armendariz was flawed because it did not track what deputies had body cameras or track all of the evidence found in Armendariz's home after he hanged himself in May 2014. "As a result, witnesses were subject to secondary interviews and the cataloging of evidence has remained in constant turmoil," Warshaw wrote in an October filing. "The turmoil has caused extensive investigatory delays in attempts to correlate multiple items of seized evidence with individuals, property and audio and/or video recordings." Armendariz testified in the racial profiling trial in 2013 after two plaintiffs -- Velia Meraz and Manuel Nieto Jr. -- said deputies followed them to their family business after Armendariz threatened to charge them with disorderly conduct for refusing to leave a gas station. The hearing will also look into Arpaio's statement to The Associated Press on a 2008 immigration raid in Guadalupe, Ariz. that "with the same circumstances, I'd do it all over again." In a report issued April 16, Warshaw found that the Sheriff's Office lacked competent leadership, especially in the upper ranks of the organization. "Incumbents in command positions are quick to blame their predecessors for misdeeds, be they acts of commission or omission," Warshaw wrote. "This is done while completely ignoring their own complicity during the events which led to this litigation and throughout the duration of the court proceedings." Arpaio and Sheridan admitted violating Snow's order in an attempt to cancel the hearing. "Defendants acknowledge and appreciate that they have violated the court's orders and that there are consequences for these violations," Arpaio and Sheridan said in a March filing with the court. "There is nothing defendants can do to change what has already been done, but through the entry of an order finding them in civil contempt and by implementing remedies discussed herein, defendants can express sincere remorse to the court and to plaintiffs, begin to make amends to those who have been injured and take affirmative steps to ensure nothing like this occurs in the future." Three other current and former Arpaio officers also are accused of violating the order, but deny the allegations. The plaintiffs did not find the admission to be enough to stop the hearing, however, and Snow agreed. "(T)he motion should be denied because defendants have not yet provided full discovery on why and how they violated the court's orders," wrote Cecillia Wang of the ACLU Foundation Immigration Rights Project. "Material issues of fact, crucial for determining the proper remedies for defendants' contempt of this court's orders, remain unresolved, and therefore the process set by the court for discovery and an evidentiary hearing should go forward." The 9th Circuit on the third week of April upheld Snow's reforms for the Sheriff's Office, finding that defendants' policy of racial profiling "applied across-the-board to all law enforcement decisions." The court found that while Warshaw should have authority related to constitutional violations, he should not have the discretion to consider disciplinary outcomes for any violations. "Sheriff Joe Arpaio has continually tried to dodge responsibility for his unconstitutional actions, and once again the courts have rebuffed his attempts," Wang said in a statement. "It's time for Sheriff Arpaio and the Maricopa County Sheriff's Office to face the facts and accept responsibility for violating the Constitution and the public trust. They should focus now on fixing the serious problems that fostered this illegal and discriminatory conduct." If Snow finds Arpaio in civil contempt, he may face criminal contempt charges. Attorneys for the Maricopa County Sheriff's Office declined to comment until after the hearing. MEDI-WHEELS: "Balde" Suit Seeks to Recover Unpaid Wages & Damages ----------------------------------------------------------------- Getro Balde, on his own behalf and others similarly situated v. Medi-Wheels Of The Palm Beaches, Inc. and Maria Vega-Herklotz, Case No. 9:15-cv-80553-DMM (S.D. Fla., April 30, 2015), seeks to recover overtime compensation, liquidated damages, and costs and reasonable attorney's fees under the Fair Labor Standards Act. The Defendants own and operate an ambulance service company in Palm Beach County, Florida. The Plaintiff is represented by: Camar Ricardo Jones, Esq. THE SHAVITZ LAW GROUP, P.A. 1515 South Federal Hwy., Suite 404 Boca Raton, FL 33432 Telephone: (561) 447-8888 Facsimile: (561) 447-8831 E-mail: cjones@shavitzlaw.com MEDTRONIC INC: MiniMed Insulin Pump Blamed for Death of NJ Man -------------------------------------------------------------- A New Jersey man who relied on a Medtronic device to administer the proper dose of insulin while he slept slipped into a fatal diabetic attack, his estate claims in court, reports Julie Baker- Dennis, writing for Courthouse News Service. Diagnosed with Type 1 diabetes mellitus in the 1970s, Charles Slack Jr. had always been conscientious about monitoring his diet, visiting his doctor on a regular basis and keeping careful control over his insulin levels, according to the federal complaint filed April 20. For the last several years of his life, Slack had relied on tried Medtronic's products to control his diabetes, his estate claims. On April 15, 2013, Slack suffered a diabetic attack while he slept because "failed to receive the correct dose of insulin," the complaint states. Though Slack had been correctly using the MiniMed insulin pump and the MiniMed Paradigm Quick-Set Infusion Sets in the days before that attack, his estate says "the pump, set and reservoir failed to take the necessary, expected and warranted steps to alert [Slack] of the failure." The attack allegedly caused Slack's "body and mind to slowly and through intense agony, crawl into unconsciousness, with a lack of responsiveness and with a complete loss of control over his body." Slack "was found, lying in his urine drenched bed, in a state of unconsciousness and unresponsiveness, yet alive," the complaint states. The 57-year-old allegedly spent the next several weeks hospitalized in a coma but died on April 30. Joann Hassan, as executrix of Slack's estate notes that the decedent's specific insulin pump was the "MiniMed Paradigm Real- Time Revel 523 System." Medtronic touts its infusion sets as able to regulate the blood- sugar levels of diabetic consumers with accurate doses of insulin in "a steady trickle," according to the complaint. The product is said to weigh only a few ounces and can be worn on a belt since the pump is about the size of a deck of cards. Medtronic's purported integrity flies in the face, however, of criticism it received in 2009 from the Food and Drug Administration, for not reporting an insulin pump malfunction that caused an individual to be hospitalize, Hassan says. The FDA also investigated and cited Medtronic for many problems at its manufacturing facility in Puerto Rico, including issues with its product testing, according to the complaint. Hassan says Medtronic had been relying on individuals with high school educations and "some in-house training" to conduct such testing, and they were not adhering the necessary stringent testing procedures to determine product reliability. Medtronic issuing its first Class 1 recall in June 2009 at the FDA's insistence, according to the complaint, but it issued more recalls over the next two years since there continued to be problems with the insulin-pump products that had the likelihood to cause serious injury or death if consumers continued to use the pumps. Along with Medtronic Inc., Hassan's complaint names as defendants Medtronic Mini Med Inc., Unomedical Devices SA de CV, Unomedical A/S and Convatec Inc. Hassan seeks punitive damages for breach of warranty, negligence, wrongful death and other claims. She is represented by Daniel Baurkot with Pinczewski & Baurkot of Easton, Pa. MONSANTO CO: Falsely Advertised Roundup Weed-Killer, Suit Claims ---------------------------------------------------------------- Courthouse News Service reports that a class action claims in California Superior Court that Monsanto falsely advertised that Roundup (glyphosate), the world's most popular weed-killer, targets an enzyme not found in humans. MULTICARE HEALTH: Sued Over Excessive Medical Record Fees --------------------------------------------------------- Adam Lynn, writing for The News Tribune, reports that lawyers for a Pierce County woman contend in a lawsuit that MultiCare Health System is employing a vendor that charges illegal and excessive fees for providing patients with copies of their medical records. The lawsuit filed on behalf of Pauline Dickman asks a judge to stop MultiCare and its vender, IOD Inc., from continuing the practice and also seeks unspecified monetary damages. Ms. Dickman's attorneys, Ashton Dennis and Loren Cochran, also filed notice with the court that they hope to have the lawsuit declared a class action. "It is believed that there are hundreds of individuals who have requested medical bills, health information, records and (protected health information) from IOD via the federal regulations . . ., and it has blatantly disregarded those regulations and continued to charge excess amounts for the records to 'deliver a competitive advantage' for its client, MultiCare . . .," the lawsuit states. MultiCare spokeswoman Maura Hallam provided a written statement on April 3. "The Dickman lawsuit concerns how much plaintiffs' lawyers are required to pay for medical records," the statement reads. "The question turns on the interpretation of a federal regulation. We will ask the federal court to decide whose interpretation is correct. At the same time, we will be reviewing all of our procedures to confirm that we are in complete compliance with all applicable regulations." Efforts to reach an attorney for IOD were unsuccessful on April 3. The lawsuit was filed in February in Pierce County Superior Court. It was moved to U.S. District Court at the request of MultiCare and IOD on April 1. Ms. Dickman's lawsuit contends that federal regulations prohibit health care providers from charging a per-page fee for copying and providing a person his or her medical records. A health care provider is allowed to charge a fee, but it can include only "the cost of copying (including supplies and labor) and postage if the patient requests that the copy be mailed," the lawsuit states. "The fee may not include costs associated with searching for and retrieving the requested information." Ms. Dickman, through her attorneys, requested copies of her records in November after receiving treatment at a MultiCare facility. IOD, which handles requests for records made by MultiCare patients, sent her a letter quoting her a $500 charge to produce her 503 pages of records, according to documents filed as part of her lawsuit. That charge included a basic fee of $24, a copying charge of $1.09 per page for the first 30 pages and 82 cents per page for the rest. Shipping was estimated at $12.35 and sales tax at $43.41. Ms. Dickman complained, but IOD later notified her that the final bill would be $488.93 for the compact disc containing her records. Her lawsuit contends that IOD knows it is not allowed to charge a per-page fee but "continually does so in an attempt to increase profits for itself and for MultiCare." Wisconsin-based IOD faces a similar lawsuit in the state of New York, according to federal records. IOD lawyers have made a motion to dismiss that action, which was filed in October. NATIONAL SECURITIES: NY Sup. Court Dismisses "Vasquez" Action ------------------------------------------------------------- In CHRISTOPHER VASQUEZ, INDIVIDUALLY AND ON BEHALF OF OTHER PERSONS SIMILARLY SITUATED WHO WERE EMPLOYED BY NATIONAL SECURITIES CORPORATION, AND/OR ANY OTHER ENTITIES AFFILIATED WITH OR CONTROLLED BY NATIONAL SECURITIES CORPORATION AND/OR MARK GOLDWASSER, Plaintiff, v. NATIONAL SECURITIES CORPORATION, MARK GOLDWASSER, AND/OR ANY OTHER ENTITIES AFFILIATED WITH OR CONTROLLED BY NATIONAL SECURITIES CORPORATION AND/OR MARK GOLDWASSER, Defendants, 155613/2014. 2015 NY Slip Op 25143, Defendants National Securities Corporation (NSC) and Mark Goldwasser moved to dismiss the putative class action for lack of standing on the ground that Mr. Vazquez has been paid the entire amount of his individual claim. The Plaintiff does not oppose dismissal, but contends that notice to the putative class must be given pursuant to CPLR 908. The Plaintiff also moved for approval of his proposed class notice. Defendants opposed on the ground that notice under CPLR 908 is not required. Judge Shirley Werner Kornreich of the Supreme Court of New York County, granted in part and denied in part the motions, in an opinion entered May 1, 2015, a copy of which is available at http://is.gd/PWC48cfrom Leagle.com. The motion by defendants National Securities Corporation and Mark Goldwasser to dismiss the complaint is granted, without opposition. The Plaintiff's motion to compel notice to the class is granted, but the court reserves judgment on the manner and substance of the notice. Judge Kornreich directed the parties to meet and confer to (1) reach an agreement on the language to be included in the notice; and (2) ensure that a means to electronically notify the class, such as by email, is feasible. A telephone conference will be held on May 18, 2015, at 4:30 pm, at which time the parties will report the outcome of the meet and confer. The Clerk will not be directed to enter judgment and this action will not be marked disposed until after the class notice is issued. Virginia & Ambinder LLP, for plaintiff. Baker & Hostetler LLP, for defendants. NEWARK, NJ: Judge Stays Class Action v. Watershed Agency -------------------------------------------------------- Bill Wichert, writing for NJ.com, reports that a class-action lawsuit filed by two former employees of the Newark Watershed Conservation and Development Corp. cannot move forward while the agency's bankruptcy process is underway, a judge has ruled. The employees filed the lawsuit last year to recover money allegedly stolen from the now-defunct agency, which has been dogged by allegations of criminal wrongdoing and misappropriation of city funds. But U.S. Bankruptcy Judge Vincent F. Papalia said on March 31 that he would not partially lift the stay placed on the lawsuit after the agency's trustees filed for bankruptcy in January. Since money was allegedly stolen from the corporation, the judge decided the agency should be the entity to pursue any litigation, not the former employees, according to attorneys involved in the matter. Daniel Stolz, an attorney representing the agency in the bankruptcy case, said the judge's decision was based on applicable law that holds that if there is "direct harm" to a company in bankruptcy, that company should be the only one to pursue litigation. The trustees and their attorneys are "the best qualified people to pursue the claim," Mr. Stolz said. The litigation pursued by the agency would include negligence claims against law firms that had represented the agency and claims against people who wrongfully took money from the corporation, according to Mr. Stolz. "We're certainly not going to drag our feet," said Mr. Stolz, referring to the pending litigation, adding that "we understand that this is an issue that needs to be addressed." The corporation had treated and delivered water for 500,000 customers in northern New Jersey until its watershed operations were transferred to city control in 2013. After a separate legal battle, city and agency officials reached an agreement late last year on moving forward with shutting down the corporation. The class-action lawsuit was initially filed on July 9 in New Jersey Superior Court in Essex County. Named as defendants were various individuals, law firms and other companies associated with the agency. The lawsuit involves two main components -- a claim on behalf of Newark residents to recover the allegedly stolen funds, and a claim on behalf of former agency employees to receive their benefits, including money for their pensions, severance pay and unused sick and vacation time, according to David Hoffman, the attorney representing the former employees. While the employees' claim would remain part of the bankruptcy case, Mr. Hoffman said he was looking to remove the stay in regard to the residents' claim and move forward with that part of the lawsuit. Mr. Hoffman said "my contention was that the theft was essentially from Newark, even though it was through the NWCDC." In light of the judge's ruling, Mr. Hoffman said he doesn't know how or when he could pursue his lawsuit. "It means I'm in limbo," Hoffman said. "I'm not sure what'll happen." The lawsuit was based in large part on a scathing report issued in February 2014 by the New Jersey Comptroller's Office, alleging rampant mismanagement, corruption and abusive spending practices at the agency. At the center of those allegations is the agency's former executive director, Linda Watkins-Brashear, who received more than $600,000 in severance packages, and wrote more than $200,000 in unauthorized checks to herself, the investigation found. The report also asserts that Ms. Watkins-Brashear awarded millions of dollars' worth of no-bid contracts to her ex-husband, close personal associates and agency employees. One of the agency employees who allegedly received those no-bid contracts -- Donald Bernard Sr. -- and a contractor, Giacomo "Jack" DeRosa, are now facing federal criminal charges for allegedly participating in a kickback scheme at the agency. Bernard is accused of accepting at least $730,000 in kickbacks from DeRosa and other contractors, authorities said. Another former contractor, James Porter, pleaded guilty in January to his role in the scheme. OMIMEX CANADA: 9th Cir. Upholds Judgment in S Bar Branch Case ------------------------------------------------------------- The United States Court of Appeals, Ninth Circuit affirmed a district court judgment entered in S BAR BRANCH, a Montana corporation, Plaintiff-Appellant, v. OMIMEX CANADA, Ltd., a Delaware corporation, Defendant-Appellee, NO. 13-35466. S Bar B Ranch appealed the judgment in favor of Omimex Canada, Ltd., which followed the district court's grant of summary judgment on the contract and fraud based claims brought by S Bar B. S Bar B had sought to recover damages from Omimex on the basis that Omimex had improperly determined the royalty amount that it was required to pay to S Bar B for natural gas obtained from wells on S Bar B's property. S Bar B also sought class action certification for itself and others similarly situated. According to the Ninth Circuit, the law of the State of Montana applies in this diversity action. At the district court, S Bar B conceded that its claims failed if Montana applies the "at the well" rule to determine the royalties rather than the "first marketable product" rule. The district court determined that Montana applied the "at the well" rule. The Ninth Circuit agrees. As the Montana Supreme Court has said, "[t]he price to be paid is not to be an arbitrary price fixed by the lessee but the price actually given in current market dealings." The court explained, "lessor should receive no less and lessee pay no more than the current selling price of the gas." Moreover, it declared, "[w]here no market exists in the field, . . . royalty may be computed upon receipts from the marketing outlet for the products, less the costs and expenses of marketing and transportation." Those statements, especially when taken with others in the court's discussion, show that the court adopted the "at the well" rule, held the Ninth Circuit. It does not appear that the Montana courts have applied a different rule over the ensuing years. As the parties have acknowledged, that disposes of this case; thus the Ninth Circuit says it need not and do not address the other issues raised before it on appeal. Omimex is awarded its costs on appeal. A copy of the Ninth Circuit's May 4, 2015 memorandum is available at http://is.gd/DrYNkgfrom Leagle.com. OMNIVISION TECHNOLOGIES: June Final Settlement Approval Hearing --------------------------------------------------------------- Omnivision Technologies, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on March 6, 2015, for the quarterly period ended January 31, 2015, the court scheduled a June 2015 hearing regarding final approval of the settlement in a class action. On October 26, 2011, the first of several putative class action complaints was filed in the United States District Court for the Northern District of California against the Company and three of its executives, one of whom is a director. All of the complaints alleged that the defendants violated the federal securities laws by making misleading statements or omissions regarding the Company's business and financial results, in particular regarding the use of its imaging sensors in Apple Inc.'s iPhone. These actions have been consolidated as In re OmniVision Technologies, Inc. Litigation, Case No. 11-CV-5235 (RMW) (the "Securities Case"). On April 23, 2012, plaintiffs filed a consolidated complaint on behalf of a purported class of purchasers of the Company's common stock between August 27, 2010 and November 6, 2011, seeking unspecified damages. On March 29, 2013, the court denied the defendants' motion to dismiss. On December 30, 2014, the parties entered into a stipulation and agreement of settlement to resolve the litigation, which was then submitted to the court for preliminary approval. The stipulation and agreement of settlement provides for a payment of $12.5 million to the plaintiff class, which is funded solely by the Company's insurance carriers. The Company also entered into a mutual release agreement with one of its insurance carriers. In March 2015, the court entered an order granting preliminary approval of the settlement and ordering notice to the putative plaintiff class. The court also scheduled a June 2015 hearing regarding final approval of the settlement. With the execution of the stipulation agreement and the release agreement, the Company believes that ultimate settlement is probable, at the currently estimated amount. Consequently, as of January 31, 2015, on the condensed consolidated balance sheet, the Company recorded $12.5 million in Recoverable insurance proceeds within Total current assets, and $12.5 million in Litigation settlement accrual within Total current liabilities. Notice of the settlement must be provided to the putative shareholder class, and the court must grant final approval of the settlement. There is no assurance that the court will grant such approval, or that the settlement will become final. If the settlement does not occur and litigation against the Company continues, the Company believes that it has meritorious defenses and intends to defend the case vigorously. ORBITZ WORLDWIDE: Hotel Booking Antitrust Case Officially Ended --------------------------------------------------------------- Orbitz Worldwide, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on March 9, 2015, for the fiscal year ended December 31, 2014, that Plaintiffs in the On- Line Travel Company Hotel Booking Antitrust Litigation did not file a notice of appeal, thereby officially ending the case. On August 20, 2012, a putative consumer class action was filed in the United States District Court for the Northern District of California against certain hotel chains and the major OTCs, including Orbitz. The complaint alleged that the hotel chains and several major OTCs, including Orbitz, violated the antitrust and consumer protection laws by entering into agreements in which OTCs agree not to facilitate the reservation of hotel rooms at prices that are less than what the hotel chain offers on its own website. Following the filing of the initial complaint, several dozen additional putative consumer class action complaints were filed in federal courts across the country. On December 11, 2012, the Judicial Panel on Multidistrict Litigation issued an order consolidating these cases in the United States District Court for the Northern District of Texas. On May 1, 2013, the plaintiffs filed a consolidated amended complaint. On July 1, 2013, the defendants moved to dismiss the Complaint. On December 17, 2013, the District Court heard oral argument on Defendants' motion to dismiss. On February 16, 2014, the District Court granted the Defendants' motion to dismiss on all claims without prejudice. On October 27, 2014, the District Court denied Plaintiffs leave to amend their complaint. Plaintiffs did not file a notice of appeal, thereby officially ending the case. ORBITZ WORLDWIDE: Facing Delaware Actions Relating Expedia Deals ---------------------------------------------------------------- Orbitz Worldwide, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on March 9, 2015, for the fiscal year ended December 31, 2014, that the Company is facing Delaware Actions relating to Expedia transaction. Since the announcement of the merger on February 12, 2015, six putative shareholder class action lawsuits have been filed against Orbitz and its directors, among other parties, in the Court of Chancery of the State of Delaware. The specific cases are: (i) Irving Feldbaum v. Barney Harford, et al., No. 10692, filed on February 19, 2015; (ii) Tonya Diamond v. Orbitz Worldwide, Inc., et al., No. 10703, filed on February 23, 2015; (iii) Jonathan Shiller v. Orbitz Worldwide, Inc., et al., No. 10704, filed on February 23, 2015; (iv) Suresh Rijhwani v. Barney Harford, et al., No. 10711, filed on February 24, 2015; Mathew Sciababucch v. Orbitz Worldwide, Inc. et al, No. 10726, filed on February 26, 2015; and (vi) Douglas Carlson v. Barney Harford, et al, No. 10736, filed on March 3, 2015. In the Delaware Actions, plaintiffs allege that the individual director defendants breached their fiduciary duties to Orbitz shareholders in negotiating and approving the merger agreement, that the merger consideration negotiated in the merger agreement undervalues Orbitz, that Orbitz shareholders will not receive fair value for their Orbitz common stock in the merger, and that the terms of the merger agreement impose improper deal-protection devices that purportedly preclude competing offers. The complaints further allege that Orbitz, Expedia and Merger Sub aided and abetted the alleged breaches of fiduciary duty by the Orbitz directors. Plaintiffs seek injunctive relief, including enjoining or rescinding the merger, an award of unspecified attorneys' fees, and other relief. The outcome of the Delaware Actions cannot be predicted with certainty. A preliminary injunction could delay or jeopardize the completion of the merger, and an adverse judgment granting permanent injunctive relief could indefinitely enjoin completion of the merger. Additional lawsuits arising out of or relating to the merger agreement or the merger may be filed in the future. Defendants intend to vigorously defend against these lawsuits PVH CORP: Faces Class Action Over Unrequested Text Messages ----------------------------------------------------------- Joe Van Acker and Allison Grande, writing for Law360, report that PVH Corp., better known as Tommy Hilfiger, violated the Telephone Consumer Protection Act by sending thousands of unrequested text messages promoting sales and discounts, according to a proposed class action filed in California federal court on April 2. James Nelson's complaint said the clothing retailer sent him several SMS text messages without ever obtaining his written consent and claimed the messages, which he had to pay his cellular service provider to receive, were sent through an automatic telephone dialing system. "By sending such SMS text messages to consumers, defendant has caused consumers actual harm, including the aggravation and privacy invasion that accompanies receiving unsolicited text messages," the complaint said. Aside from the financial cost of receiving the calls, Mr. Nelson said the company's messages drained his battery and took up data storage space on his phone. Tommy Hilfiger sent its mass text messages using a five- or six- digit number called a "short code" instead of a standard 10-digit phone number, the complaint said. The short codes are provided by Neustar Inc., which is not a party in the suit. According to the complaint, Mr. Nelson received seven messages from Tommy Hilfiger from September through November of 2014. Mr. Nelson proposed a nationwide class of all people who received phone calls or text messages from the company from Oct. 16, 2013, until notice is mailed to the class. The class is estimated to include "tens of thousands" of members, according to the complaint. Mr. Nelson said he's seeking $500 for each TCPA violation, which the complaint said could number in the thousands, but asked the court to award greater damages if it finds Tommy Hilfiger "willfully" violated the law. Marketers who have felt "stymied" by federal and state laws are increasingly relying on text messages to reach consumers, and said SMS marketing has become a "billion-dollar industry," the complaint said. On April 1, a U.S. Federal Communications Commission official urged the agency to address a backlog of TCPA petitions to clarify its regulations to advertisers. FCC Commissioner Michael O'Reilly said the agency shouldn't treat every call from a private company as "a form of harassment," and said some businesses avoid contacting their customers even when they simply want to provide helpful information. Mr. Nelson is represented by Gregory H. D. Alumit of Howard Law PC and David M. Arbogast of Arbogast Law PC. The case is Nelson v. PVH CORP., D/B/A Tommy Hilfiger et al., case no. 8:15-cv-00512 in the U.S. District Court for the Central District of California. QUIKSILVER INC: Faces Securities Class Action in California ----------------------------------------------------------- Beth Winegarner, writing for Law360, reports that Quiksilver Inc. was hit with a securities class action in California federal court on April 2 accusing the surf clothing maker of hiding revenue reporting problems from investors, leading to sharp stock losses when the truth was revealed and followed by the abrupt departure of its CEO and CFO. The lawsuit, filed by lead plaintiff Leiland Stevens, claimed Quiksilver's stock lost more than 15 percent of its value in late March when the company came clean about the fact that it was investigating a "revenue cut-off issue." RANDSTAD US: Blumenthal, Nordrehuag & Bhomik Files Class Action --------------------------------------------------------------- Blumenthal, Nordrehuag & Bhomik on April 3 disclosed that a proposed class action lawsuit was filed on February 13, 2015, against Randstad US, L.P. by the San Francisco employment law attorneys at Blumenthal, Nordrehaug & Bhowmik. The complaint alleges that Randstad US, L.P. failed to provide their security guard employees with the legally required thirty minute uninterrupted meal periods. The Randstad US, L.P. class action lawsuit, Case No. RG15758487, is currently pending in the Alameda County Superior Court for the State of California. The Complaint claims that Randstad US, L.P. failed to provide their California Security Guards paid on an hourly basis the legally required meal and rest breaks. California law requires employers to provide their non-exempt employees paid on an hourly basis with thirty minute meal periods before the employee works five hours. The penalty for failing to provide adequate meal breaks is one hour of pay under the California Labor Code. As a result, the class action lawsuit alleges that the company's employees forfeited meal and rest periods without additional compensation. Furthermore, the complaint alleges that Randstad US, L.P. did not reimburse their Security Guards for required business expenses incurred while discharging their job duties. The Complaint claims that during the course of their employment, Randstad US, L.P. required its employees to travel between job sites as a result of and in furtherance of their job duties but failed to reimburse these employees for the costs associated with traveling to these job sites. The California Labor Code Section 2802 requires all employers to idemnify their employees for all expenses incurred during the scope and course of their employment. For more information about the class action lawsuit against Randstad US, L.P. call (866) 771-7099. Blumenthal, Nordrehaug & Bhowmik is a San Francisco employment law firm that represents employees in California who have been wrongfully terminated, denied proper overtime pay, denied payment of earned commission wages, and also employees who have been improperly denied their meal and rest breaks. RAYONIER ADVANCED: Sued in Fla. Over Misleading Financial Reports ----------------------------------------------------------------- Oklahoma Firefighters Pension & Retirement Systems, Individually and on Behalf of all Others Similarly Situated v. Rayonier Advanced Materials, Inc. et al, Case No. 3:15-cv-00546 (M.D. Fla., April 30, 2015), alleges that the Defendants made false and misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Rayonier Advanced Materials, Inc. is a Delaware corporation with its principal place of business located at 1301 Riverplace Boulevard, Suite 2300, Jacksonville, Florida, 32207. Rayonier is a producer of specialty cellulose fibers. The Plaintiff is represented by: Joseph E. White III, Esq. Lester R. Hooker, Esq. SAXENA WHITE, PA 5200 Town Center Cir. Ste 601 Boca Raton, FL 33486-1033 Telephone: (561) 394-3399 Facsimile: (561) 394-3382 E-mail: jwhite@saxenawhite.com lhooker@saxenawhite.com - and - Jay W. Eisenhofer, Esq. James J. Sabella, Esq. GRANT & EISENHIFER, P.A 485 Lexington Avenue New York, NY 10017 Telephone: (646) 722-8500 Facsimile: (646) 722-8501 E-mail: jeisenhofer@gelaw.com jsabella@gelaw.com RESIDENTIAL MANAGEMENT: "Mosquea" Suit Seeks to Recover Unpaid OT ----------------------------------------------------------------- Victoriano Mosquea and Abel Nunez, on behalf of themselves and all others similarly situated v. Residential Management (NY), Inc., et al., Case No. 1:15-cv-03342-PAE (S.D.N.Y., April 29, 2015), seeks to recover unpaid overtime wages and damages pursuant to the Fair Labor Standard Act. Residential Management (NY), Inc. owns and operates a property management business with its principal place of business located at 1651 Coney Island Ave, 4th Floor, Brooklyn, New York. The Plaintiff is represented by: Francisco Castillo, Esq. CASTILLO STEPHENS LLP 305 Broadway, Ste 1400 New York, NY 10007 Telephone: (646) 434-0049 Facsimile: (212) 214-0301 E-mail: cslawyers@attomey1.com REXFORD INDUSTRIAL: Motion to Dismiss Class Action Pending ---------------------------------------------------------- Rexford Industrial Realty, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on March 9, 2015, for the fiscal year ended December 31, 2014, that Defendants' motion to dismiss a class action lawsuit is pending before the court. On October 3, 2013, two pre-IPO investors filed a putative class action purportedly brought on behalf of the investors in Rexford Industrial Fund III ("RIF III") in the Los Angeles County Superior Court. On February 14, 2014, a First Amended Complaint was filed adding an additional individual pre-IPO investor and putative class claims on behalf of investors in Rexford Industrial Fund IV, LLC ("RIF IV"). This complaint also alleged that the communication of the proposed accommodation (in which Messrs. Schwimmer, Frankel and Ziman, together with certain other pre-IPO owners of the pre-IPO management companies agreed to return up to $32.1 million that they received in connection with our IPO and formation transactions) was materially misleading by not including disclosures regarding the lawsuit and claims asserted by plaintiffs. On July 15, 2014, a Second Amended Complaint was filed withdrawing the class action allegations and the allegations concerning communication of the accommodation, and adding four additional plaintiff investors. During the third quarter of 2014, the Company entered into settlement agreements with three of these four additional plaintiffs. The aggregate amount paid by the Company in these settlements was not material. Plaintiffs assert claims against the Company, RIF III, RIF IV, Rexford Industrial, LLC and Messrs. Schwimmer, Frankel and Ziman for breach of fiduciary duty, violation of certain California securities laws, negligent misrepresentation, and fraud. Plaintiffs allege, among other things, that the terms of the Company's formation transactions were unfair to investors in RIF III and RIF IV, that the consideration received by investors in RIF III and RIF IV in the formation transactions was inadequate, that the pre-IPO management companies were allocated unfair value in the formation transactions and that the disclosure documents related to the formation transactions were materially misleading. Plaintiffs also request to inspect the books and records of RIF III and RIF IV, which entities no longer exist, and further seek declaratory relief, unspecified recessionary damages, disgorgement, compensatory, punitive and exemplary damages, an accounting for unjust enrichment, and an award of costs including pre-judgment interest, attorneys' and experts' fees, and other unspecified relief. Defendants have answered the Second Amended Complaint denying all allegations and asserting affirmative defenses. Defendants have also filed a motion to dismiss the case for forum non conveniens or, in the alternative, to compel the action to judicial reference, which the plaintiffs have opposed. Defendants' motion is pending before the court. The Company said, "While we believe that the action is without merit and intend to defend the litigation vigorously, we expect to incur costs associated with defending the action. At this early stage of the litigation, the ultimate outcome of the action is uncertain and we cannot reasonably assess the timing or outcome, or estimate the amount of loss, if any, or its effect, if any, on our financial statements." SAKS & CO: Obtains Favorable Ruling in Return Policy Class Action ----------------------------------------------------------------- Aebra Coe and Jonathan Randles, writing for Law360, report that Saks & Co. on April 2 beat a proposed class action in California after a federal judge found that a customer who sued the retailer hadn't shown she was damaged when her return privileges were cut off for buying more than $150,000 worth of merchandise and returning nearly all of it. U.S. District Judge Andre Birotte Jr. dismissed the suit with prejudice, saying plaintiff Jennifer Shaouli hadn't even claimed to attempt to return anything after Saks sent her a letter in February telling her she'd abused the return policy and wouldn't be allowed to return any more merchandise. As a result, Judge Birotte has not alleged she has been damaged, the judge concluded. "Shaouli has no standing . . . because she has not suffered any 'lost money or property' as a result of Saks' alleged unlawful acts," Judge Birotte said. Ms. Shaouli filed her proposed class action in December accusing the retailer of violating California unfair competition laws and the California Consumer Legal Remedies Act, negligent misrepresentation and breach of quasi-contract. According to the complaint, Ms. Shaouli purchased shoes at a Saks located in Beverly Hills in January 2014. Ms. Shaouli claims that Saks' return policy was not posted at the entrance to the store. A month later, Saks sent a letter to Ms. Shaouli informing her that it would no longer accept her returns because her account had a high return rate. "In the last 12 months you have made purchases of $161,151 and you have returned $149,245," the letter said. The company's policy is to restrict returns if it finds based on a customer's shopping history an "unreasonable return pattern." Ms. Shaouli filed the proposed class action in December. She sought to represent a nationwide class of Saks shoppers and a separate class of California shoppers. The company filed its motion to dismiss Ms. Shaouli's complaint in February. Her proposed class definition suffers from the same flaw that dooms each of her individual claims, Judge Birotte found. "Because Shaouli concedes that she never attempted to return any unreturned merchandise purchased before or after the Feb. 25 effective date for the return restrictions on her account, any amendment . . . would be futile," the order dismissing the suit with prejudice said. "This point is underscored by Shaouli's proposed class definitions, which include customers whose accounts were placed in 'negative status' without regard to whether those customers were denied an attempt to return unreturned merchandise before they were put on notice of return restrictions associated with their accounts," it said. "We're pleased with the result. We think the court correctly recognized that Saks' return policy is fair," Saks counsel Ken Kronstadt of Kelley Drye & Warren LLP told Law360 on April 3. Ms. Shaouli is represented by L. Paul Mankin of The Law Office of L. Paul Mankin IV and Arvin Ratanavongse of the The Law Offices of Todd M Friedman PC . Saks is represented by David Fink -- dfink@kelleydrye.com -- and Ken Kronstadt -- kkronstadt@kelleydrye.com -- of Kelley Drye & Warren LLP. The case is Jennifer Shaouli v. Saks Fifth Avenue Inc., case number 2:14-cv-09590, in the U.S. District Court for the Central District of California. SIMPLEXGRINNELL LP: Wins Prelim. Certification of Labor Class ------------------------------------------------------------- Courthouse News Service reports that a federal judge April 22 preliminarily certified a labor class action from California workers for SimplexGrinnell. SKY BAR: Faces "Flores" Suit Over Failure to Pay Overtime Wages --------------------------------------------------------------- Marcial Flores, individually and on behalf of others similarly situated v. Sky Bar Times Square Inc. d/b/a Sky Room & Bar, Norbert Gehr, Alfred M. Somekh and David Lifschitz, Case No. 1:15- cv-03387-RJS (S.D.N.Y., April 30, 2015), is brought against the Defendants for failure to pay overtime wages for work performed in excess of 40 hours weekly. The Defendants own and operate a bar located at 330 W. 40th Street, New York, New York 10018. The Plaintiff is represented by: Michael Antonio Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 2020 New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 E-mail: faillace@employmentcompliance.com SPIRIT AEROSYSTEMS: Awaits Judge's Decision on Motion to Dismiss ---------------------------------------------------------------- Spirit AeroSystems Holdings, Inc. said in its Form 10-K/A Amendment No. 1 filed with the Securities and Exchange Commission on March 6, 2015, for the fiscal year ended December 31, 2014, that the parties are currently awaiting a decision by the district judge on the motion to dismiss a class action lawsuit. On June 3, 2013, a putative class action lawsuit was commenced against the Company, Jeffrey L. Turner, and Philip D. Anderson in the U.S. District Court for the District of Kansas. The court- appointed lead plaintiffs - two pension funds that claim to represent a class of investors in the Company's stock - filed an amended complaint on April 7, 2014, naming as additional defendants Spirit's Vice President of the B787 Program Terry J. George and former Senior Vice President of Oklahoma Operations Alexander K. Kummant. The amended complaint alleges that defendants engaged in a scheme to artificially inflate the market price of the Company's stock by making false statements and omissions about certain programs' performance and costs. It contends that the alleged scheme was revealed by the Company's accrual of $590.0 million in forward loss charges on October 25, 2012. The lead plaintiffs seek certification of a class of all persons other than defendants who purchased Holdings securities between May 5, 2011 and October 24, 2012, and seek an unspecified amount of damages on behalf of the putative class. In June 2014, the defendants filed a motion to dismiss the claims set forth in the Amended Complaint. The parties have fully briefed the defendants' motion, presented oral arguments before the court on February 6, 2015 and are currently awaiting a decision by the district judge. The Company intends to vigorously defend against these allegations, and management believes the resolution of this matter will not materially affect the Company's financial position, results of operations or liquidity. TAKEDA PHARMACEUTICALS: Faces Cherokee Suit Over Actos(R) Drugs --------------------------------------------------------------- The Cherokee Nation, individually and on behalf of all others similarly situated v. Takeda Pharmaceuticals USA, Inc. f/k/a Takeda Pharmaceutical North America, Inc., et al., Case No. 6:15- cv-01485 (W.D. La., April 30, 2015), is an action for damages suffered by the Plaintiffs as a proximate result of the Defendant's alleged negligent and wrongful conduct in connection with the designing, developing, manufacturing, distributing, labeling, advertising, marketing, promoting, and selling of Actos(R) (pioglitazone Hcl). Actos(R) is a prescription medication used to improve blood sugar (glucose) control in adults with Type II diabetes. The Cherokee Nation is a federally recognized Indian tribe that operates the largest tribally running health care system in the United States. Takeda Pharmaceuticals USA, Inc. Delaware Corporation with its principal place of business located at One Takeda Parkway, Deerfield, Illinois 60015. Takeda is involved in the research, development, sales and marketing of pharmaceutical products. The Plaintiff is represented by: Curtis "Muskrat" Bruehl, Esq. THE BRUEHL LAW FIRM 14005 N. Eastern Ave. Edmond, OK 73013 Telephone: (405) 509-6300; Facsimile: (405) 509-6268 E-mail: curtbrue@gmail.com - and - Tracy D. Rezvani, Esq. REZVANI VOLIN P.C. 1050 Connecticut Ave, N.W., 10th Floor Washington, D.C. 20036 Telephone: (202) 350-4270 x 101 Facsimile: (202) 351-0544 E-mail: trezvani@rezvanivolin.com TEXTURA CORPORATION: Deadline to File Motion to Dismiss Due ----------------------------------------------------------- Textura Corporation said in its Form 10-K Report filed with the Securities and Exchange Commission on March 9, 2015, for the fiscal year ended December 31, 2014, that the Company had until April 27, 2015 to file a motion to dismiss. The Company said, "On October 7, 2014, a putative class action lawsuit alleging violations of federal securities laws was filed in the U.S. District Court for the Northern District of Illinois, naming as defendants us and certain of our executive officers. An amended complaint was filed on February 17, 2015. The amended complaint alleges violations of the Securities Exchange Act of 1934 by us and our executive officers for making allegedly materially false and misleading statements and by failing to disclose allegedly material facts regarding our business and operations between June 7, 2013 and September 29, 2014. The plaintiffs seek unspecified monetary damages and other relief. We believe the lawsuit is without merit and intend to defend the case vigorously. We have until April 27, 2015 to file a motion to dismiss." TRUMP UNIVERSITY: Directed by Court to Pay $798,000 in Legal Fees ----------------------------------------------------------------- Donald Trump's profit-seeking business college must pay $798,000 in legal fees to a former student, for filing an anti-SLAPP suit, reports Rebekah Kearn at Courthouse News Service, citing a federal court ruling. Tarla Makaeff sued Trump University and Donald Trump in 2010, in a proposed class action alleging deceptive business practices. Makaeff claimed she shelled out $60,000 for a real estate program that consisted of seminars that were little better than infomercials. Trump University countersued, accusing Makaeff of defaming it in online postings and elsewhere. Makaeff moved to strike the counterclaim under California's anti- SLAPP law. U.S. District Judge Irma Gonzalez denied the motion, but the 9th Circuit reversed in 2013. After the district court granted Makaeff's motion to strike in June 2014, she asked for $1.3 million in attorneys' fees and costs. Her attorneys claimed they'd spent 2,226 hours on the case, a number Trump's attorneys disputed. The case is no longer a class action and Donald Trump himself no longer is a defendant. U.S. District Judge Gonzalo Curiel on April 9 awarded Makaeff $798,779.24 in fees and costs. Makaeff's attorneys sought hourly rates of $250 to $440 for associates and $600 to $825 for partners, citing a 2007 survey in the National Law Journal and their experience handling class actions. Trump's attorneys called these rates unreasonable and pushed for a blended hourly rate of $300 on the grounds that Makaeff's attorneys had no anti-SLAPP litigation experience and assigned too many partners to a "simple motion." Curiel found the rate requests for associates and partners reasonable, but denied Makaeff's request for staff attorney and paralegal fees because she did not provide enough evidence to support the requested hourly rates or give enough background information to enable the court to determine an appropriate prevailing rate. Trump University argued that the hours submitted by Makaeff's attorneys should be reduced because they often lumped together multiple tasks, duplicated hours by appointing more than one partner to a task and committed staffing improprieties. Curiel scaled back the number of hours expended on most of the plaintiffs' 25 proceedings by 20 percent, others by 50 percent and some he declined entirely, reducing the fees award by $542,920.85 to $790,083.40. The judge also cut $513.46 in requested costs for an award of $8,695.81. Curiel denied Makaeff's motion to apply an upward multiplier to offset any reduction in fees because he said she "has not met her burden that a contingency fee enhancement is appropriate here." The Trump Organization told Courthouse News it will appeal. "Despite Trump University being rated as 'excellent' by 98% of its students and having an 'A' rating with the BBB [Better Business Bureau], Tarla Makaeff engaged in a campaign to defame it in her quest to obtain an unjustified refund. As a result, we believe that the court's most recent ruling was in error and plan to appeal," Trump's assistant general counsel Jill Martin said. The Plaintiff is represented by: Aaron M. Olsen, Esq. Amber Lee Yeck, Esq. ZELDES, HAEGGQUIST & ECK LLP 625 Broadway Suite 1000 San Diego, CA 92101 Telephone: (619) 342-8000 Facsimile: (619) 342-7878 E-mail: aarono@zhlaw.com ambere@zhlaw.com VICTORY PLANNING: Has Sent Unsolicited Fax Ads, Sabon Suit Says --------------------------------------------------------------- Sabon, Inc., a Florida corporation, individually and as the representative of a class of similarly-situated persons v. Victory Planning, Inc., Alian Moreno, Barbara Ianet Moreno and John Does 1-10, Case No. 0:15-cv-60917-BB (S.D. Fla., April 30, 2015), seeks to stop the Defendant's practice of sending unsolicited fax advertisements. Victory Planning, Inc. is a Nevada corporation that operates a financial service company. The Plaintiff is represented by: Ryan Michael Kelly, Esq. ANDERSON WANCA 3701 Algonquin Road, Suite 760 Rolling Meadows, IL 60008 Telephone: (847) 368-1500 Facsimile: (847) 368-1501 E-mail: rkelly@andersonwanca.com WALT DISNEY: Judge Dismisses Anti-Poaching Class Action ------------------------------------------------------- Michael Lipkin, Kurt Orzeck and Allissa Wickham, writing for Law360, report that a California federal judge on April 3 ruled that animators from The Walt Disney Co., Pixar Animation Studios Inc. and other studios had filed too late in a consolidated class action accusing the studios of conspiring to keep down wages, despite the plaintiffs' comparison to a price-fixing conspiracy. U.S. District Judge Lucy H. Koh granted a motion to dismiss from Disney, DreamWorks Animation SKG Inc., Lucasfilm Ltd. LLC and others after finding the four-year statute of limitations on the artists and production engineers' claims meant the allegations needed to cover activity after September 2010. The plaintiffs have 30 days to file an amended complaint. The plaintiffs argued that continuing violations from the studios extended their filing window, advancing a "novel theory" that because they entered employment agreements and received artificially depressed pay, they suffered new injuries for each paycheck received, according to the ruling. The injuries were no different than those suffered by consumers who pay artificially high prices for something due to a price-fixing conspiracy, they claimed. But Judge Koh found the reasoning unpersuasive, holding that the unique angle ignored the requirement for an overt act in order for the paychecks to be a continuing violation. There were no allegations the animation studios continued to enforce their alleged scheme after 2010, she held, adding the suit conspicuously lacked any specific dates for later conduct. "Plaintiffs have failed to allege any facts showing that their compensation was at all impacted at any point after September 8, 2010," Judge Koh wrote. "This is unsurprising in light of plaintiffs' failure to allege any wrongful conduct post-2009." The first suit in the consolidated class action was filed in September by Robert A. Nitsch Jr., a former character effects artist at DreamWorks and technical director at Sony Pictures Imageworks Inc. Mr. Nitsch claimed that the studios agreed not to actively solicit each others' employees and schemed to fix employee wages, as part of a conspiracy to suppress compensation. Roughly two weeks later, Judge Koh agreed to hear Mr. Nitsch's suit, finding it was related to an antitrust class action claiming Google Inc., Apple Inc. and other tech companies illegally agreed not to poach each other's engineers. Judge Koh recently approved a $415 million settlement in that case. The alleged anti-competitive practice at the heart of the lawsuit came to light after the U.S. Department of Justice launched a probe into the hiring practices of Silicon Valley businesses, including defendant Pixar Animation Studios Inc. In the April 3 ruling, Judge Koh held that the plaintiffs' claims began to accrue at the time of their injury, not when they discovered the alleged scheme, citing the Ninth Circuit's rulings since 1950. The plaintiffs were right in a "hypertechnical sense" that the appeals court never explicitly rejected using the discovery rule for Sherman Act claims, but that it made no difference. "In light of that established assumption, there has been no need for the Ninth Circuit to explain why a different accrual rule does not apply," Judge Koh wrote. Based on the complaint, the defendants also did not fraudulently conceal their actions, Judge Koh wrote, ruling that there were no allegations the studios took affirmative steps to mislead their employees. While they allegedly avoided writing terms of their deals down and attempted to keep their scheme a secret, that type of passive concealment was not enough, according to the ruling. The plaintiffs are represented by Daniel A. Small -- dsmall@cohenmilstein.com -- Brent W. Johnson -- bjohnson@cohenmilstein.com -- and Jeffrey B. Dubner of Cohen Milstein Sellers & Toll PLLC, Jeff D. Friedman, Shana E. Scarlett -- shanas@hbsslaw.com -- Steve W. Berman and Ashley A. Bede of Hagens Berman Sobol Shapiro LLP, and Marc M. Seltzer -- mseltzer@susmangodfrey.com -- Steven G. Sklaver -- ssklaver@susmangodfrey.com -- Matthew R. Berry, Jordan Talge and John E. Schlitz of Susman Godfrey LLP. Walt Disney, Lucasfilm, Pixar, ImageMovers and Two Pic MC LLC are represented by Emily Johnson Henn -- ehenn@cov.com -- of Covington & Burling LLP. DreamWorks Animation is represented by Rod J. Stone -- rstone@gibsondunn.com -- of Gibson Dunn. Sony Pictures Animation and Sony Pictures Imageworks are represented by Stephen V. Bomse -- sbomse@orrick.com -- of Orrick Herrington & Sutcliffe LLP. Blue Sky Studios is represented by John E. Schmidtlein -- jschmidtlein@wc.com -- of Williams & Connolly LLP and William Faulkner -- wfaulkner@mcmanislaw.com -- of McManis Faulkner. The case is In Re Animation Workers Antitrust Litigation, case number 5:14-cv-04062, in the U.S. District Court for the Northern District of California. WASHINGTON HOSPITAL: Claim for "Uniform Maintenance" Work Tossed ---------------------------------------------------------------- Employees cannot sue a hospital for not paying them for time spent disinfecting their uniforms, a federal judge in Washington ruled, reports Rose Bouboushian at Courthouse News Service. Peggy Dinkel, Valarie Gadson, and Deidre Beckford sued their employer Washington Hospital Center and its parent, MedStar Health Inc., in federal court in 2011. The plaintiffs claim the defendants didn't pay them for "meal break" and "uniform maintenance" work, in violation of the Fair Labor Standards Act and the District of Columbia Minimum Wage Act. U.S. District Judge Colleen Kollar-Kotelly conditionally certified the case as a collective action of two classes of non-exempt hourly employees in July 2012. The uniform maintenance class includes all those who worked at any of nine identified MedStar hospitals from May 26, 2008 to July 29, 2012 -- some 455 members as of Jan. 9, 2013. The meal break class includes those who have worked in Washington Hospital Center's emergency department or medical cardiology unit from May 26, 2008 to present. Ultimately, 292 employees opted in to the uniform maintenance class, and 15 opted in to the meal break class as of July 2013, though several were dismissed about a year later for failing to appear for deposition. The hospital recently filed a renewed motion for summary judgment, arguing that time used by hospital workers to maintain their uniforms is not compensable in light of the U.S. Supreme Court's recent ruling in Integrity Staffing Solutions Inc. v. Busk. In that case, the high court ruled that Amazon warehouse workers do not deserve payment for time spent waiting daily in long lines to undergo mandatory metal-detector scans. Relying on that ruling, Kollar-Kotelly partially granted Medstar's motion on April 16. "The test for a principal activity is whether a person is employed for the purpose of accomplishing a certain activity," Kollar- Kotelly wrote. "It is for this reason that the security screening in Integrity Staffing Solutions was not a principal activity even though those employees were required to participate in the screening. Because plaintiffs are not employed for the purpose of maintaining their own uniforms -- regardless of whether uniform maintenance activities are required by defendants -- those activities do not qualify as principal activities." The judge also relied on Steiner v. Mitchell, in which the Supreme Court ruled in 1956 that the time battery-plant employees spent showering and changing clothes was compensable because "the chemicals in the plant were 'toxic to human beings,'" the ruling states. "For the battery-plant employees, they themselves had to shower and change immediately at their workplace upon completing their other work," Kollar-Kotelly wrote. "By contrast, the parties do not dispute that plaintiffs conduct their uniform maintenance activities in a wide variety of ways-from the employees completing all cleaning activities themselves to sharing uniform maintenance responsibilities with family members to taking certain items to professional cleaners. Minimizing infection -- even accepting plaintiffs' experts' testimony regarding the importance of infection control -- does not reach the level of importance to plaintiffs' principal activities as the showering and changing of the battery-plant employees." The court denied the defendant's motion with respect to the Minimum Wage Act, however, finding that this question needs further briefing, and declined to rule on the hospital's request to exclude testimony of the plaintiffs' witnesses at this time. Neither the hospital nor its parent company had responded to requests for comment at press time. WELLS FARGO: Accused of Breaching Deal in "Pick-a-Payment" Suit --------------------------------------------------------------- Wells Fargo breached a class-action settlement agreement on "Pick- a-Payment" mortgage loan modifications, reports Philip A. Janquart at Courthouse News Service, citing a federal court ruling. Borrowers sued Wachovia Mortgage in 2009, alleging violation of state and federal law for failing to adequately disclose terms of Pick-a-Payment mortgage loans offered from 2003 to 2008. The loans allowed minimum payments for a limited time, under certain conditions. But Wachovia, a subsidiary of Wells Fargo, did not tell borrowers the minimum payments would not be enough to cover interest, which was tacked on to the loan balance, resulting in negative amortization, they claimed. Wachovia agreed to a $50 million settlement in February 2011, though it denied wrongdoing. Under the settlement, borrowers who still had Pick-a-Payment loans but were not yet in default were prospectively entitled to loan modification if they later defaulted on their loans or could demonstrate that they were at "imminent risk" of default. Wells Fargo, as the loan servicer, has discretion to determine which borrowers are eligible for one of two loan modification programs: the federal government's Home Affordable Mortgage Program (HAMP) and Wells Fargo's "MAP2R" program. Wells Fargo's determination on which borrowers are likely to default is based, in part, on guidance under the federal HAMP program. U.S. District Judge Richard Seeborg ruled on April 15 that his previous enforcement orders do not "delineate the precise extent to which HAMP guidance must bear on Wells Fargo's imminent default analysis" and that Wells Fargo has taken too much liberty in deciding when, and to what extent, it should apply the guidance. "It is true that the generous terms of the agreement ... imbue Wells Fargo with discretion to develop the exact contours of its imminent default test. But, again, its discretion is clearly cabined by the requirement that it arrive at standards 'in accordance with applicable HAMP guidance, as necessary.' That language does not confer upon Wells Fargo license to choose when reliance on HAMP guidance is necessary and, when necessary, the degree of such reliance," Seeborg wrote. He added: "Wells Fargo is not permitted to determine unilaterally when reliance on HAMP guidance is 'necessary'; the bounds of necessity are supplied by the terms of the federal guidelines themselves." Seeborg said Wells Fargo breached the settlement agreement in two ways. "First, it violated the agreement by failing to establish and apply equally across the class uniform written standards for its 'major change of circumstance' test. Second, it breached the agreement by applying the DTI (Debt to Income) threshold based on borrowers' monthly minimum payments in evaluating MAP2R applicants for imminent default." XENCOR INC: Defendant in "DePinto v. John S. Stafford" Class Suit ----------------------------------------------------------------- Xencor, Inc. said in its Form 8-K Report filed with the Securities and Exchange Commission on March 6, 2015, that on March 3, 2015, a complaint, captioned DePinto v. John S. Stafford, et al., C.A. No. 10742, was filed in the Court of Chancery of the State of Delaware against certain of the company's current and former directors on behalf of certain minority holders of the company's convertible preferred stock before its initial public offering ("IPO"). In general, the complaint alleges that the directors breached their fiduciary duties to these minority stockholders in connection with a recapitalization of the company that took place prior to its IPO. The complaint also claims that certain director and stockholder written consents connected with the recapitalization are invalid. The complaint has been brought as a purported class action and seeks unspecified monetary damages and other relief. The company believes that the class action lawsuit is without merit and intends to vigorously defend the action. YELP INC: Court Dismisses Suit Alleging Manipulation of Reviews --------------------------------------------------------------- A federal judge dismissed a class action accusing Yelp of manipulating businesses' reviews for money, reports Arvin Temkar, writing for Courthouse News Service. Lead plaintiff Joseph Curry sued Yelp and its executives in August 2014 for securities violations, claiming Yelp goosed its stock price through "false denials of the company's extortionlike practices." Curry claimed Yelp often did not screen or remove fake reviews of businesses that didn't advertise with Yelp, to coerce them into buying ads. U.S. District Judge Jon Tigar dismissed the case April 21, finding the consolidated class action "fails to satisfy the requirements for a securities fraud claim." The plaintiffs have 30 days to file an amended complaint. The Plaintiffs are 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 The Defendants are represented by: Gilbert Serota, Esq. ARNOLD AND PORTER LLP Three Embarcadero Center, 10th Floor San Francisco, CA 94111-4024 Telephone: (415) 471-3100 Facsimile: (415) 471-3400 E-mail: Gilbert.Serota@aporter.com * Fla. Sup. Court Sides with Smokers in Jury Instructions Dispute ----------------------------------------------------------------- Daily Business Review reports that the Florida Supreme Court sided on April 2 with smokers suing leading cigarette makers in a pivotal dispute over jury instructions. The court sided with the Third District Court of Appeal in Miami and against the Fourth District Court of Appeal in West Palm Beach, which review cases from the busiest trial courts hearing smoker cases. The decision written by Justice Peggy Quince resolves a key question that left both sides in the litigation wondering what kinds of jury questions would pass appellate muster when applying the fraud statute of repose. "This is a landmark decision. It's a major decision. It settles for good issues that have been raised in every" Florida smoker case, said winning attorney Philip Gerson. The unanimous court rejected jury instructions sought by Philip Morris USA Inc. and R.J. Reynolds Tobacco Co., ruling their wording would have kept juries from considering evidence of reliance on tobacco industry pronouncements before the 12-year repose period. In the case of Tina Russo, who pursued a lawsuit after the death of her mother Phyllis Frazier, that period ran from 1982 to 1994. While reports from the U.S. surgeon general's office warned of the health dangers of smoking since the 1960s, tobacco industry executives did not admit any health risks until 1999. "There just is no statute of repose issue at all," said Mr. Gerson of Gerson & Schwartz in Miami. Plaintiffs attorneys argued the statute of repose didn't kick in until the industry conspiracy ended, and he said the Florida Supreme Court agrees. The court sided with the Third DCA, which faulted the trial court for entering judgment in favor of the companies after denying Ms. Frazier's motion for directed verdict. About 4,000 individual smoker cases were filed on behalf of smokers in state courts after the Florida Supreme Court in 2006 disbanded a statewide class action named for a Miami Beach pediatrician, Dr. Howard Engle. The decision instantly excited the tobacco plaintiffs bar. "There's emails flying around just in the time I've been talking to you," Mr. Gerson said. "There's been 20 of them that came up on my screen." ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Ma. Cristina Canson, Noemi Irene A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2015. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000 or Nina Novak at 202-362-8552. * * * End of Transmission * * *