/raid1/www/Hosts/bankrupt/CAR_Public/150519.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, May 19, 2015, Vol. 17, No. 99
Headlines
151 MULBERRY: Faces "Bermeo" Suit Over Failure to Pay Overtime
A10 NETWORKS: Intends to Defend Warren Police Lawsuit
ASSEMBLY BIOSCIENCES: Lead Plaintiffs Did Not File Appeal
BANK OF AMERICA: Sued in Cal. Over Unlawful Foreclosure Policies
BANK OF MARIN: Responsible for Some Shares in VISA Litigation
BARCLAYS BANK: Sued Over Alleged LIBOR Rate Manipulation
BCB BANCORP: May 22 Fairness Hearing on Proposed Settlement
BIG ROY: "McLaurin" Suit Seeks to Recover Unpaid Overtime Wages
BREAKROOM BURGERS: Faces "Felix" Suit Over Failure to Pay OT
CHARLES HUGGINS: Gets 10-Year Sentence for Duping Investors
CHRYSLER LLC: TRW Wins Summary Judgment Over Class Action Claims
CONSOLIDATED WORLD: Has Made Unsolicited Calls, Suit Claims
COSTCO WHOLESALE: Court Denied Plaintiffs' Motion for Fee Award
DELCATH SYSTEMS: Parties Filed Class Certification Pleadings
EBAY INC: Judge Tosses 2014 Data Breach Class Action
FIAT CHRYSLER: Seeks New Trial in Jeep Fire Suit
FIRST NATIONAL: Plaintiffs Nixed State Court Complaint v. US Bank
FREEDOM INDUSTRIES: Judge Rejects $6.7MM Bankruptcy Plan
GERON CORPORATION: Hearing Scheduled on Bid to Dismiss Class Suit
HEWLETT-PACKARD: Removed "Adkins" Suit to N.D. California
HEWLETT-PACKARD: June 8 Final Approval Hearing in Cunningham Case
HEWLETT-PACKARD: "Karlbom" Case Parties Engaged in Discovery
HEWLETT-PACKARD: "Benedict" Case Parties Engaged in Discovery
HEWLETT-PACKARD: Oral Argument Not Scheduled in Cement & Concrete
HEWLETT-PACKARD: Hearing Held on Cert. Bid in Securities Case
HEWLETT-PACKARD: Awaits Ruling on Bid to Dismiss ERISA Litigation
HILLS BANCORPORATION: Parties Put Case Against Hills Bank on Hold
ITRO TRUCKING: Fails to Pay Employees Overtime, Suit Claims
JOLIET STAFFING: Faces "Creal" Suit Over Failure to Pay Overtime
KRAFT FOODS: Faces "Klocke" Suit in Va. Over Illegal Company Sale
LA TAPATIA: Falsely Marketed Tortilla Products, Action Claims
LAKES ENTERTAINMENT: Faces Shareholder Class Action Lawsuits
MARBAR VENTURE: Faces "Fleener" Suit Over Failure to Pay Overtime
MASTEC NORTH: Faces "Lockett" Suit Over Failure to Pay Overtime
MATHEWS PRIME: Delivery Workers Win Favorable Ruling in OT Suit
MATTRESS FIRM: Fails to Pay Managers OT, "Maurici" Suit Claims
MAYWEATHER PROMOTIONS: Faces "Baker" Suit Over Pacquiao's Injury
MGA RESEARCH: "Schultz" Suit Seeks to Recover Unpaid OT Wages
NVIDIA CORPORATION: Plaintiffs File Certiorari Petition
PFIZER INC: Plaintiff's Expert Witness Can Testify in Zoloft Suit
PHP ENTERPRISES: Faces "Emlmerdi" Suit Over Failure to Pay OT
PIEDMONT PETROLEUM: "Asamoah" Suit Seeks to Recover Unpaid OT
PREMERA BLUE: Faces "Eykel" Suit Over Alleged Data Breach
QC HOLDINGS: Expects Execution of Settlement to Continue
QC HOLDINGS: California Case Trial Scheduled for Early 2016
RCS CAPITAL: Court Issues Final Judgment in Summit Litigation
RCS CAPITAL: Continues to Defend Against ARCH Trust Litigation
RCS CAPITAL: To Defend Against Weston Shareholder Class Action
RCS CAPITAL: To Defend Against Teachers Insurance Class Action
SEPTA: Arbitrator Must Handle Arbitration Agreement Dispute
SO-BEE INC: Faces "Rashid" Suit Over Failure to Pay Overtime
STERLING JEWELERS: Court Explores EEOC Duty to Probe Bias Claims
SUDAN: Hires White & Case to Fight Judgments in Kenya Bombing
TAM ENTERPRISES: "Duncan" Suit Seeks to Recover Unpaid OT Wages
TOP RANK: Faces "Barrios" Suit in E.D.N.Y. Over Pacquiao's Injury
TOP RANK: Faces "Braunstein" Suit in N.Y. Over Pacquiao's Injury
TOP RANK: Faces "Craig" Suit in E.D. Texas Over Pacquiao's Injury
TOP RANK: Faces "Jackson" Suit in Fla. Over Pacquiao's Injury
TOP RANK: Faces "Johnson" Suit in D. Md. Over Pacquiao's Injury
TOP RANK: Faces "McDonald" Suit in Cal. Over Pacquiao's Injury
TRUECAR INC: Named as Defendant in Class Action Lawsuit
UMH PROPERTIES: Litigation Related to Flooding Ongoing
UNITED HEALTHCARE: Faces "Foucher" Suit Over Failure to Pay OT
VIASYSTEMS GROUP: Parties to TTM Merger Entered Into MOU
VOCERA COMMUNICATIONS: Court Won't Dismiss Exchange Act Claims
XPRESSPA AT TERM.4JFK: Suit Seeks to Recover Unpaid OT Wages
* Mortgage Foreclosure Proceeding Pleading Rules Favor Borrowers
*********
151 MULBERRY: Faces "Bermeo" Suit Over Failure to Pay Overtime
--------------------------------------------------------------
Marcello Bermeo, Victor Gonzalez, Roman Vazquez, Melesio Leon,
Juan Castro, and Javier Maldonado, individually and on behalf of
all others similarly situated v. 151 Mulberry Street Corp. d/b/a
II Palazzo, Annetie Sabatino a/k/a Annette Criscitelli, and Perry
Criscitelli, Case No. 1:15-cv-03552 (S.D.N.Y., May 6, 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 II Palazzo restaurant located at
134 Mulberry Street and 151 Mulberry Street, New York, New York
10013.
The Plaintiff is represented by:
John J. P. Howley, Esq.
LAW OFFICES OF JOHN HOWLEY
350 5th Avenue, 59th Floor
New York, NY 10118
Telephone: (212) 601-2728
Facsimile: (347) 603-1328
E-mail: jhowley@johnhowleyesq.com
A10 NETWORKS: Intends to Defend Warren Police Lawsuit
-----------------------------------------------------
A10 Networks, Inc. said in its Form 10-K Report filed with the
Securities and Exchange Commission on March 11, 2015, for the
fiscal year ended December 31, 2014, that the Company intends to
vigorously defend the lawsuit filed by the City of Warren Police
and Fire Retirement System.
The Company said, "On January 29, 2015, the Company, the members
of our Board of Directors, our Chief Financial Officer, and the
underwriters of our March 21, 2014, initial public offering were
named as defendants in a putative class action lawsuit filed in
the Superior Court of the State of California, County of Santa
Clara, captioned City of Warren Police and Fire Retirement System
v. A10 Networks, Inc., et al., 1-15-CV-276207. The complaint seeks
to allege violations of the federal Securities Act of 1933 on
behalf of a putative class consisting of purchasers of our common
stock pursuant or traceable to the registration statement and
prospectus for the initial public offering, and seeks unspecified
compensatory damages and other relief. We intend to vigorously
defend this lawsuit. Based on information currently available, we
are unable to reasonably estimate a possible loss or range of
possible loss, if any, in regards to this lawsuit; therefore, no
accrued litigation expense has been recorded in the accompanying
Consolidated Balance Sheets."
ASSEMBLY BIOSCIENCES: Lead Plaintiffs Did Not File Appeal
---------------------------------------------------------
Assembly Biosciences, Inc., formerly Ventrus Biosciences, Inc.,
said in its Form 10-K Report filed with the Securities and
Exchange Commission on March 12, 2015, for the fiscal year ended
December 31, 2014, that lead plaintiffs did not file an appeal on
the dismissal of a class action lawsuit.
In June 2012, the Company announced that its product iferanserin
(VEN 309), failed to meet its end point at the completion of its
Phase III clinical trial. In May 2013 two purported class action
lawsuits alleging violations of the federal securities laws were
filed in New York against the Company, two of its executive
officers and the lead underwriter of its initial public offering.
The lawsuits included allegations that, during the class period
between December 17, 2010 and June 25, 2012, the Company and its
executive officers and underwriter made various statements related
to the Company's product, iferanserin (VEN 309), including but not
limited to, the market for the product, the potential competitors,
and the results of clinical trials, thereby inflating the price of
our common stock. The complaints sought unspecified damages,
interest, attorneys' fees, and other costs. On July 23, 2013, the
Court consolidated the actions and appointed lead plaintiffs and
lead counsel. On September 16, 2013, lead plaintiffs filed a
consolidated amended complaint. On November 22, 2013, the Company
filed a motion to dismiss the consolidated amended complaint (the
"Motion to Dismiss").
On May 5, 2014, the Court granted the Motion to Dismiss and
dismissed the class action with prejudice.
On May 19, 2014, lead plaintiffs filed a Motion for
Reconsideration of the Court's order dismissing the class action
with prejudice (the "Motion for Reconsideration"). On July 2,
2014, the Court entered an order denying the Motion for
Reconsideration. Lead plaintiffs had until August 2, 2014 to file
notice of an appeal, but no appeal was filed.
BANK OF AMERICA: Sued in Cal. Over Unlawful Foreclosure Policies
----------------------------------------------------------------
Sharon Flores, an individual, and on behalf of herself of the
class of all others similarly situated v. Bank of America, N.A.,
Case No. 3:15-cv-01014-BAS-BGS (S.D. Cal., May 6, 2015), is an
action for damages as a proximate result of the Defendant's
inaccuracies in executing and recording various foreclosure-
related documents and for failing to verify competent and reliable
evidence supporting their right to foreclose prior to recording
notices of default and sale.
Bank of America, N.A. is a National Banking Association licensed
with a principal place of business in the State of North Carolina.
The Plaintiff is represented by:
Matthew E. Faler, Esq.
LAW OFFICES OF MATTHEW E. FALER, P.C.
8840 Warner Ave., Ste 301
Fountain Valley, CA 92708
Telephone: (714)465-4433
Facsimile: (714)842-2288
E-mail: mfaler@mfaler-law.com
BANK OF MARIN: Responsible for Some Shares in VISA Litigation
-------------------------------------------------------------
Bank of Marin Bancorp said in its Form 10-K Report filed with the
Securities and Exchange Commission on March 12, 2015, for the
fiscal year ended December 31, 2014, that, "We are responsible for
our proportionate share of certain litigation indemnifications
provided to Visa U.S.A. ("Visa") by its member banks in connection
with lawsuits related to anti-trust charges and interchange fees
("Covered Litigation"). On December 13, 2013, the district court
issued a memorandum and order approving Visa's definitive class
settlement agreement in the interchange multidistrict litigation
("Settlement Agreement") with the class plaintiffs. According to
the latest SEC filing by VISA, Inc. dated January 29, 2015, on
January 14, 2015, following a Court-approved process to give class
members who previously opted out of the damages portion of the
class settlement an option to rejoin it, the class administrator
submitted a report stating that it had received 1,179 requests by
merchants to rejoin the cash settlement class, some of which may
include multiple merchants. In addition, on November 26, 2014, in
the putative class action filed on behalf of an alleged class of
Visa and MasterCard payment cardholders, the court dismissed the
plaintiffs' federal law claim and declined to exercise
jurisdiction over plaintiffs' state law claim. Both sides have
asked the court to reconsider aspects of its decision, and have
filed notices of appeal. The conversion rate of Visa Class B
common stock held by us to Class A common stock may reduce if Visa
makes more Covered Litigation settlement payments in the future
and the full impact to member banks is still uncertain. However,
we are not aware of significant future cash settlement payments
required by us on the Covered Litigation."
BARCLAYS BANK: Sued Over Alleged LIBOR Rate Manipulation
--------------------------------------------------------
Sonterra Capital Master Fund, Ltd., on behalf of itself and all
others similarly situated v. Barclays Bank PLC, et al., Case No.
1:15-cv-03538-VSB (S.D.N.Y., May 6, 2015), arises from the
Defendant's unlawful combination, agreement, and conspiracy to fix
and restrain trade in, and the intentional manipulation of, the
Sterling London Interbank Offered Rate (Sterling LIBOR), and the
prices of Sterling LIBOR-based derivatives during the period of at
least January 1, 2005 through at least December 31, 2010.
Barclays Bank PLC is a United Kingdom banking and financial
services that operates a New York branch located in this District
at 745 Seventh Avenue, New York, New York.
The Plaintiff is represented by:
Geofrey M. Horn, Esq.
Vincent Briganti, Esq.
Peter St. Philip, Esq.
Raymond Gimys, Esq.
Christian P. Levis, Esq.
LOWEY DANNENBERG COHEN & HART, P.C.
One North Broadway
White Plains, NY 1060 1
Telephone: (914) 997-0500
Facsimile: (914) 997-0035
E-mail: ghom@lowey.com
vbriganti@lowey.com
pstphilip@lowey.com
rgimys@lowey.com
clevis@lowey.com
BCB BANCORP: May 22 Fairness Hearing on Proposed Settlement
-----------------------------------------------------------
BCB Bancorp, Inc. said in its Form 10-K Report filed with the
Securities and Exchange Commission on March 12, 2015, for the
fiscal year ended December 31, 2014, that a "Fairness Hearing" to
determine if a proposed settlement is fair, reasonable and
adequate has been scheduled by the court for May 22, 2015.
The Company, as the successor to Pamrapo Bancorp, Inc., and in its
own corporate capacity, is a named defendant in a shareholder
class action lawsuit, Kube v. Pamrapo Bancorp, Inc., et al., filed
in the Superior Court of New Jersey, Hudson County, Chancery
Division, General Equity (the "Action'). On May 9, 2012, the
Company obtained partial summary judgment, dismissing three of the
five Counts of the plaintiff's Complaint. On May 9, 2012,
plaintiff's counsel was awarded interim legal fees of
approximately $350,000. The Company's obligation to pay that
amount has been stayed.
The Company filed a motion for summary judgment, seeking the
dismissal of the remaining two Counts of the plaintiff's
Complaint. That motion was denied, without prejudice, on February
19, 2014.
Since that date, the parties have conferred in an effort to
resolve the Action. The terms of a proposed Stipulation of
Settlement ("Stipulation") have been agreed to by the plaintiff
class and the Company. In consideration for the full settlement
and release of all Released Claims (as that term is defined in the
Stipulation), and the dismissal of the Action with prejudice, the
Company has agreed to pay $1,950,000 to the Class. This amount,
less any insurance reimbursements, has been accrued for as of
December 31, 2014.
On January 9, 2015, the court entered an Order Granting
Preliminary Approval of the Proposed Class Settlement and
Authorizing the Dissemination of Notice to the Class. Pursuant to
the court rules, a "Fairness Hearing" to determine if the proposed
settlement is fair, reasonable and adequate has been scheduled by
the court for May 22, 2015.
BIG ROY: "McLaurin" Suit Seeks to Recover Unpaid Overtime Wages
---------------------------------------------------------------
Jesse McLaurin, individually and on behalf of all others similarly
situated v. Big Roy Trucking Inc., Case No. 4:15-cv-00054-CSM
(D.N.D., May 6, 2015), seeks to recover unpaid overtime wages and
damages pursuant to the Fair Labor Standard Act.
Big Roy Trucking Inc. owns and operates a trucking company with a
principal place of business located at 122 E. Broadway Ave.,
Bismarck, North Dakota 58501.
The Plaintiff is represented by:
Andrew Lawrence Mintz, Esq.
ANDREW L. MINTZ, PLLC
2603 Augusta, Suite 880
Houston, TX 77057
Telephone: (713) 780-7100
E-mail: andrew@almintzlawfirm.com
BREAKROOM BURGERS: Faces "Felix" Suit Over Failure to Pay OT
------------------------------------------------------------
Ramon Felix, individually, on behalf of all others similarly
situated and as class representative v. Breakroom Burgers & Tacos,
M & C Food and Beverage LLC d/b/a Breakroom Burgers & Tacos,
Michael Tang, Christopher Wong, Case No. 1:15-cv-03531 (S.D.N.Y.,
May 6, 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 a restaurant and bar in New York.
The Plaintiff is represented by:
Eric Peter Dawson, Esq.
ROSS & ASMAR LLC
499 Seventh Avenue
23rd Floor, South Tower
New York, NY 10018
Telephone: (516) 524-7239
Facsimile: (212) 736-2873
E-mail: edawson@rossasmar.com
- and -
Steven Benjamin Ross, Esq.
LAW OFFICE OF STEVEN B. ROSS
270 Madison Avenue, Suite 1203
New York, NY 10016
Telephone: (212) 736-4201
Facsimile: (212) 736-2873
E-mail: steven@rossasmar.com
CHARLES HUGGINS: Gets 10-Year Sentence for Duping Investors
-----------------------------------------------------------
Tom Hays, writing for The Associated Press, reports that a former
music producer who helped launch acts like Kenny G and Whitney
Houston was sentenced on May 13 to 10 years behind bars for duping
investors out of millions by claiming he had ties to West African
diamond mines.
Prosecutors in federal court in Manhattan had sought more than two
decades in prison for Charles Huggins in a scheme to steal more
than $8 million from investors. They portrayed the 69-year-old
defendant as a remorseless con man.
Mr. Huggins diverted investor money to one of his record labels
and used it to pay for his $7,200-a-month Manhattan apartment,
upkeep on a Mercedes Benz, restaurant tabs and clothes from
expensive boutiques, according to court papers.
Mr. Huggins, of Edgewater, New Jersey, "acted out of pure greed,
out of a desire to spend other people's hard-earned money on
himself," said Assistant U.S. Attorney Edward Imperatore.
The defense argued that the loss was really about $2.3 million,
and that Mr. Huggins deserved no more than six years in prison.
U.S. District Judge Sidney Stein agreed that evidence at Mr.
Huggins' 2014 trial exposed how he had done grievous harm to
honest investors. But he called the government's request for a
sentence between 22 and 27 years excessive and instead imposed the
10-year term.
The judge had received several defense submissions supporting
Huggins, including a video from his ex-wife, soul singer Melba
Moore. Asked on May 13 if he wanted to speak for himself,
Mr. Huggins stood briefly and responded, "Your honor, at this time
I have nothing to say."
Mr. Huggins once managed Hush Productions and Orpheus Inc. in New
York and worked with Houston and Kenny G early in their careers.
When his music ventures hit hard times, he cooked up a scheme to
convince dozens of investors across the United States that they
would profit by letting him invest their savings in gold or
diamonds mined in West Africa.
At his trial, one investor testified that she and her family
invested $1.6 million after seeing his lavish apartment and
meeting him at a hotel, where he described a personal relationship
with the president of Liberia and showed her diamonds. Ex-NFL
player Ken Hamlin also testified about being among the victims.
Besides funding his luxury lifestyle, a portion of the proceeds
also "was used to make payments to other investors, as in a
classic Ponzi scheme," court papers said.
CHRYSLER LLC: TRW Wins Summary Judgment Over Class Action Claims
----------------------------------------------------------------
Bankruptcy Judge Stuart M. Bernstein granted Summary Judgment in
favor of Plaintiffs TRW Automotive US, LLC and TRW Automotive
Holdings Corp ("TRW") in the case docketed as TRW AUTOMOTIVE US,
LLC, and TRW AUTOMOTIVE HOLDINGS CORP., Plaintiffs, v. OLD CARCO
LIQUIDATION TRUST and RHONDA MASQUAT, Defendants, CASE NO. 09-
50002 (SMB), (JOINTLY ADMINISTERED), ADV. PROC. NO. 14-02055
(SMB).
TRW Automotive US, LLC and TRW Automotive Holdings Corp. initiated
the adversary proceeding against Old Carco Liquidation Trust
seeking a declaration that rights purportedly assigned by the
Liquidation Trust to the defendant, Rhonda Masquat, the class
representative in an Oklahoma class action, had already been
extinguished by prior agreement or assigned to New Chrysler, the
purchaser of substantially all of the debtors' assets. Masquat
moved to intervene and to dismiss the adversary proceeding
pursuant to FED. R. CIV. P. 12(b)(6), made applicable to this
proceeding by FED. R. BANKR. P. 7012(b). Upon notice to the
parties, the Court converted the motion to one for summary
judgment, and granted summary judgment to TRW.
Judge Bernstein concluded that TRW is entitled to Summary
Judgment, as the "unknown" claims excluded from the release in
paragraph 5 of the Cure Agreement (the "Excepted Claims") were
assigned to New Chrysler. Judge Bernstein stated that the
conclusion he made in the prior TRW Decision, where he intimated
that Old Carco LLC f/k/a Chrysler LLC ("Old Chrysler") retained
the Indemnification Claim against TRW, as he was not aware of the
Cure Agreement.
The Court directed the parties to settle an order on notice and
schedule a conference to discuss the disposition of the third-
party claim.
From 1993 to 2001, Old Chrysler manufactured and sold certain
motor vehicles known as the "LH platform vehicles" that
incorporated steering components manufactured by TRW. In 2005,
Rhonda Masquat initiated a class action against Old Chrysler in
Oklahoma state court for breach of express and implied warranties,
alleging that the LH platform vehicles were equipped with
defective power rack and pinion steering systems. Old Chrysler and
affiliated entities filed chapter 11 petitions in this Court on
April 30, 2009, automatically staying the Oklahoma Litigation.
A copy of Judge Bernstein's April 13, 2015 Memorandum Decision
Granting Summary Judgment to Plaintiff, is available at
http://is.gd/vFq2IWfrom Leagle.com.
KLESTADT & WINTERS, LLP Sean C. Southard, Esq. --
ssouthard@klestadt.com -- Maeghan J. McLoughlin, Esq. --
mmcloughlin@klestadt.com -- New York, NY, and BROOKS WILKNS
SHARKEY & TURCO, PLLC Herbert C. Donovan, Esq. -- donovan@bwst-
law.com -- Michael R. Turco, Esq. -- turco@bwst-law.com --
Birmingham, MI, Attorneys for Plaintiffs.
OLSHAN FROME WOLOSKY LLP Michael S. Fox, Esq. --
mfox@olshanlaw.com -- Jordanna L. Nadritch, Esq. --
jnadritch@olshanlaw.com -- Matteo J. Rosselli, Esq. --
mrosselli@olshanlaw.com -- New York, NY, Attorneys for Defendant
Rhonda Masquat.
JONES DAY, Corrine Ball, Esq. -- cball@jonesday.com -- Jeffrey B.
Ellman, Esq. -- jbellman@jonesday.com -- Brett J. Berlin, Esq.,
New York, NY, Attorneys for Defendant Old Carco Liquidation Trust.
CONSOLIDATED WORLD: Has Made Unsolicited Calls, Suit Claims
-----------------------------------------------------------
Julie Herrera, individually and on behalf of all others similarly
situated v. Consolidated World Travel, Inc. d/b/a Holiday Cruise
Line, Case No. 1:15-cv-04030 (N.D. Ill., May 6, 2015), seeks to
stop the Defendant's practice of making unsolicited phone calls to
the wireless telephones of the Plaintiff and each of the members
of the Class without prior express written consent.
Consolidated World Travel, Inc. is a national cruise line with its
principal place of business located 2121 W. Oakland Park Blvd.,
Suite 1, Fort Lauderdale, Florida 33311.
The Plaintiff is represented by:
Katrina Carroll, Esq.
Kyle A. Shamberg, Esq.
LITE DEPALMA GREENBERG, LLC
Chicago Office
211 West Wacker Drive, Suite 500
Chicago, IL 60606
Telephone: (312) 750-1265
E-mail: kcarroll@litedepalma.com
kshamberg@litedepalma.com
COSTCO WHOLESALE: Court Denied Plaintiffs' Motion for Fee Award
---------------------------------------------------------------
Costco Wholesale Corporation said in its Form 10-Q Report filed
with the Securities and Exchange Commission on March 11, 2015, for
the fiscal year ended December 31, 2014, that the motion filed by
Plaintiffs for an award of $10 million in attorneys' fees has been
denied.
Numerous putative class actions have been brought around the
United States against motor fuel retailers, including the Company,
alleging that they have been overcharging consumers by selling
gasoline or diesel that is warmer than 60 degrees without
adjusting the volume sold to compensate for heat-related expansion
or disclosing the effect of such expansion on the energy
equivalent received by the consumer. The Company is named in the
following actions: Raphael Sagalyn, et al., v. Chevron USA, Inc.,
et al., Case No. 07-430 (D. Md.); Phyllis Lerner, et al., v.
Costco Wholesale Corporation, et al., Case No. 07-1216 (C.D.
Cal.); Linda A. Williams, et al., v. BP Corporation North America,
Inc., et al., Case No. 07-179 (M.D. Ala.); James Graham, et al. v.
Chevron USA, Inc., et al., Civil Action No. 07-193 (E.D. Va.);
Betty A. Delgado, et al., v. Allsups, Convenience Stores, Inc., et
al., Case No. 07-202 (D.N.M.); Gary Kohut, et al. v. Chevron USA,
Inc., et al., Case No. 07-285 (D. Nev.); Mark Rushing, et al., v.
Alon USA, Inc., et al., Case No. 06-7621 (N.D. Cal.); James
Vanderbilt, et al., v. BP Corporation North America, Inc., et al.,
Case No. 06-1052 (W.D. Mo.); Zachary Wilson, et al., v. Ampride,
Inc., et al., Case No. 06-2582 (D.Kan.); Diane Foster, et al., v.
BP North America Petroleum, Inc., et al., Case No. 07-02059 (W.D.
Tenn.); Mara Redstone, et al., v. Chevron USA, Inc., et al., Case
No. 07-20751 (S.D. Fla.); Fred Aguirre, et al. v. BP West Coast
Products LLC, et al., Case No. 07-1534 (N.D. Cal.); J.C. Wash, et
al., v. Chevron USA, Inc., et al.; Case No. 4:07cv37 (E.D. Mo.);
Jonathan Charles Conlin, et al., v. Chevron USA, Inc., et al.;
Case No. 07 0317 (M.D. Tenn.); William Barker, et al. v. Chevron
USA, Inc., et al.; Case No. 07-cv-00293 (D.N.M.); Melissa J.
Couch, et al. v. BP Products North America, Inc., et al., Case No.
07cv291 (E.D. Tex.); S. Garrett Cook, Jr., et al., v. Hess
Corporation, et al., Case No. 07cv750 (M.D. Ala.); Jeff Jenkins,
et al. v. Amoco Oil Company, et al., Case No. 07-cv-00661 (D.
Utah); and Mark Wyatt, et al., v. B. P. America Corp., et al.,
Case No. 07-1754 (S.D. Cal.). On June 18, 2007, the Judicial Panel
on Multidistrict Litigation assigned the action, entitled In re
Motor Fuel Temperature Sales Practices Litigation, MDL Docket No
1840, to Judge Kathryn Vratil in the United States District Court
for the District of Kansas.
On April 12, 2009, the Company agreed to settle the actions in
which it is named as a defendant. Under the settlement, which was
subject to final approval by the court, the Company agreed, to the
extent allowed by law and subject to other terms and conditions in
the agreement, to install over five years from the effective date
of the settlement temperature-correcting dispensers in the States
of Alabama, Arizona, California, Florida, Georgia, Kentucky,
Nevada, New Mexico, North Carolina, South Carolina, Tennessee,
Texas, Utah, and Virginia. Other than payments to class
representatives, the settlement does not provide for cash payments
to class members.
On September 22, 2011, the court preliminarily approved a revised
settlement, which did not materially alter the terms. On April 24,
2012, the court granted final approval of the revised settlement.
A class member who objected has filed a notice of appeal from the
order approving the settlement.
Plaintiffs have moved for an award of $10 million in attorneys'
fees, as well as an award of costs and payments to class
representatives. The Company has opposed the motion. On March 20,
2014, the Company filed a notice invoking a "most favored nation"
provision under the settlement, under which it seeks to adopt
provisions in later settlements with certain other defendants, an
invocation that class counsel has opposed. The motion was denied
on January 23, 2015.
DELCATH SYSTEMS: Parties Filed Class Certification Pleadings
------------------------------------------------------------
Delcath Systems, Inc. said in its Form 10-K Report filed with the
Securities and Exchange Commission on March 11, 2015, for the
fiscal year ended December 31, 2014, that the parties filed all
class certification pleadings with the Court in the case In re
Delcath Systems, Inc. Securities Litigation, United States
District Court for the Southern District of New York (Case No. 13-
cv-3116).
On May 8, 2013, a purported stockholder of the Company filed a
putative class action complaint in the United States District
Court for the Southern District of New York, captioned Bryan
Green, individually and on behalf of all others similar situated,
v. Delcath Systems, Inc., et al. ("Green"), Case No. 1:13-cv-
03116-LGS. On June 14, 2013, a substantially similar complaint was
filed in the United States District Court for the Southern
District of New York, captioned Joseph Connico, individually and
on behalf of all others similarly situated, v. Delcath Systems,
Inc., et al. ("Connico"), Case No. 1:13-cv-04131-LGS.
At a hearing on August 2, 2013, the Court consolidated the Green
and Connico actions under the caption In re Delcath Systems, Inc.
Securities Litigation, No. 13-cv-3116, appointed Lead Plaintiff,
Delcath Investor Group, and approved Pomerantz Grossman Hufford
Dahlstrom & Gross LLP as Lead Plaintiff's choice of counsel.
On September 18, 2013, Lead Plaintiff filed a consolidated amended
complaint, naming the Company and Eamonn P. Hobbs as defendants
(the "Defendants"). The consolidated amended complaint asserts
that Defendants violated Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934 by allegedly making false and
misleading statements or omissions regarding the Company's New
Drug Application for its Melblez Kit (Melblez (melphalan) for
Injection for use with the Delcath Hepatic Delivery System), for
the treatment of patients with unresectable metastatic ocular
melanoma in the liver. The putative class period alleged in the
amended complaint is April 21, 2010 through and including
September 13, 2013. Lead Plaintiff seeks compensatory damages,
equitable relief, and reasonable attorneys' fees, expert fees and
other costs. On October 31, 2013, Defendants filed their motion to
dismiss, which was subsequently denied on June 27, 2014. On July
25, 2014, Defendants filed their respective answers to Lead
Plaintiff's consolidated amended complaint. On July 29, 2014, the
Court held a scheduling conference setting forth a case management
plan. The parties are proceeding with discovery. On October 15,
2014, Lead Plaintiff served Defendants with a Motion for Class
Certification to which Defendants served an opposition on December
16, 2014. On February 4, 2015, Lead Plaintiff served Defendants
with a reply in support of the Motion for Class Certification and
the parties filed all class certification pleadings with the
Court.
The Company believes that the In re Delcath Systems, Inc.
Securities Litigation action lacks merit and intends to defend the
case vigorously.
EBAY INC: Judge Tosses 2014 Data Breach Class Action
----------------------------------------------------
Ross Todd, writing for The Recorder, reports that a federal judge
in New Orleans on May 4 knocked out a proposed class action
against eBay Inc. stemming from a 2014 data breach at the auction
website.
Siding with the company's lawyers at Cooley, U.S. District Judge
Susie Morgan of the Eastern District of Louisiana found eBay
customer Collin Green lacked standing because his claims were tied
to an increased risk of future identity theft rather than any
ongoing fraud.
"The mere fact that plaintiff's information was accessed during
the data breach is insufficient to establish injury-in-fact,"
Judge Morgan wrote in a 14-page decision. "Thus, the potential
threat of identity theft or identity fraud, to the extent any
exists in this case, does not confer standing on plaintiff to
pursue this action in federal court."
Judge Morgan's decision runs counter to an opinion issued last
September by U.S. District Judge Lucy Koh of the Northern District
of California. Judge Koh allowed a lawsuit stemming from a 2013
data breach at Adobe Systems Inc. to move forward finding that
plaintiffs had alleged "a concrete and imminent threat of future
harm."
Judge Morgan noted Judge Koh's Adobe decision in a footnote along
with two other cases where federal judges found plaintiffs in such
cases had standing to sue. But Judge Morgan concluded that her
decision was "in line with the weight of authority" that the risk
of future harm arising from a data breach is not sufficient to
establish standing.
EBay advised users to change their passwords last May after
unknown individuals accessed files containing their names,
encrypted passwords, birthdates, email addresses, addresses and
phone numbers. EBay users' credit card and bank information was
not subject to the breach. Mr. Green's lawyers at O'Bell Law Firm
in Metairie, La., sued eBay in July alleging negligence,
violations of the Stored Communications Act and the Fair Credit
Reporting Act, breach of contract, and state law privacy claims.
Mr. Green's lawyer, Charles Zimmer II, said on May 4 that he was
reviewing the decision. He said the ruling is part of a "wave" of
decisions that read the U.S. Supreme Court's 2013 decision in
Clapper v. Amnesty International as foreclosing damages claims
from the threat of future identity theft.
"It's hard to convince courts that there's value there, even
though people are risking jail time to steal this information and
governments and companies are spending lots of money to prevent
it," Mr. Zimmer said.
Cooley partner Michael Rhodes -- rhodesmg@cooley.com -- is eBay's
lead lawyer.
FIAT CHRYSLER: Seeks New Trial in Jeep Fire Suit
------------------------------------------------
Tom Krisher, writing for The Associated Press, reports that Fiat
Chrysler has asked a Georgia judge for a new trial a month after a
jury awarded $150 million to the family of a 4-year-old Georgia
boy killed in a crash and fire involving a Jeep.
The company, which makes Jeeps, says the jury's award of $120
million for the life of Remington Walden and $30 million for his
pain and suffering are "grossly excessive" and illegal under
Georgia law. Fiat Chrysler, formally known as FCA US LLC, also
contends the amounts are far higher than the largest awards in
Georgia history that have been upheld on appeal.
The jury in Decatur County has ruled that Fiat Chrysler was 99
percent responsible for Walden's death and that it acted with
reckless disregard for human life in selling a 1999 Jeep Grand
Cherokee to his family. Walden burned to death when the Jeep was
hit from behind in March of 2012. The Jeep had a plastic gas tank
mounted behind its rear axle which ruptured and leaked gasoline,
causing a fire.
The company's motion contends that the "astonishing" size of the
jury award was improperly swayed by passion and prejudice and
should be set aside. It also asks the judge to reduce the award
and require a new trial if the plaintiffs don't accept the lower
amount.
Jim Butler, a Walden family attorney, called the grounds for the
motion "nonsense." He says Fiat Chrysler is after reduced
damages, which he expects the judge to grant. He also says his
clients will accept that amount. Mr. Butler says the verdict was
based on evidence, not on passion and prejudice.
In its motion May 7, Fiat Chrysler said the wrongful death award
is more than 11 times the largest such award upheld on appeal in
Georgia.
Fiat Chrysler also argues that Remi's suffering was brief, and
that previously, the largest pain-and-suffering award in Georgia
was $7 million for a person who was hospitalized for months,
paralyzed and endured severe pain. "A $30 million pain-and-
suffering award for what plaintiffs acknowledge was at most one
minute of suffering is irrational," the motion said.
The company says the Waldens' attorneys made improper appeals to
the jury, urging it to act as a safety regulator and punish the
company with big damages. The attorneys told the jury to base the
amount of the award on Fiat Chrysler CEO Sergio Marchionne's total
compensation of $68 million, the motion stated.
"Where such plainly improper arguments are immediately followed by
irrational and stunningly excessive damage awards, there can be no
doubt that the jury acted from passion and prejudice," the motion
stated.
Carl Tobias, a law professor at the University of Richmond,
suspects that Fiat Chrysler is trying to reduce the award so it
can negotiate a settlement. It's difficult to show that a jury
was inflamed by passion and prejudice, he said. But he also noted
that the numbers are large compared to other Georgia verdicts.
"It might convince an appellate court in Georgia to alter
something or even order a new trial," he said.
The April 2 verdict came nearly two years after Fiat Chrysler
compromised with U.S. safety regulators and agreed to a scaled-
down recall of 1.56 million older Jeeps with rear-mounted tanks.
The tanks have little structure to protect them if struck from
behind, making them susceptible to punctures and fires.
Federal documents show that at least 75 people have died in post-
crash fires due to the tanks.
The jury deliberated less than two hours, ruling after a seven-day
trial that Chrysler was 99 percent at fault for the crash and the
pickup driver who hit the Jeep was 1 percent at fault.
Chrysler has long contended that the Jeeps were no more dangerous
than comparable SUVs built at the time.
But Mr. Butler called the claim that the Jeeps are safe a "big
lie."
FIRST NATIONAL: Plaintiffs Nixed State Court Complaint v. US Bank
-----------------------------------------------------------------
First National Master Note Trust said in its Form 10-K Report
filed with the Securities and Exchange Commission on March 12,
2015, for the fiscal year ended December 31, 2014, that U.S. Bank
National Association, in its capacity as Indenture Trustee,
provided information for the purposes of complying with the
requirements of Regulation AB:
In June 2014, a civil complaint was filed in the Supreme Court of
the State of New York, New York County, by a group of
institutional investors against U.S. Bank National Association
("U.S. Bank"), in its capacity as trustee or successor trustee (as
the case may be) under certain residential mortgage backed
securities ("RMBS") trusts. The plaintiffs are investment funds
formed by nine investment advisors (AEGON, BlackRock, Brookfield,
DZ Bank, Kore, PIMCO, Prudential, Sealink and TIAA) that purport
to be bringing suit derivatively on behalf of 841 RMBS trusts that
issued $771 billion in original principal amount of securities
between 2004 and 2008. According to the plaintiffs, cumulative
losses for these RMBS trusts equal $92.4 billion as of the date of
the complaint. The complaint is one of six similar complaints
filed against RMBS trustees (Deutsche Bank, Citibank, HSBC, Bank
of New York Mellon and Wells Fargo) by certain of these
plaintiffs. The complaint against U.S. Bank alleges the trustee
caused losses to investors as a result of alleged failures by the
sponsors, mortgage loan sellers and servicers for these RMBS
trusts and asserts causes of action based upon the trustee's
purported failure to enforce repurchase obligations of mortgage
loan sellers for alleged breaches of representations and
warranties concerning loan quality. The complaint also asserts
that the trustee failed to notify securityholders of purported
events of default allegedly caused by breaches by mortgage loan
servicers and that the trustee purportedly failed to abide by
appropriate standards of care following events of default. Relief
sought includes money damages in an unspecified amount and
equitable relief. In November 2014, the plaintiffs sought leave to
voluntarily dismiss their original state court complaint and filed
a substantially similar complaint in the United States District
Court for the Southern District of New York. The federal civil
complaint added a class action allegation and a change in the
total number of named trusts to 843 RMBS trusts. In December 2014,
the plaintiffs' motion to voluntarily dismiss their original state
court complaint was granted. Other cases alleging similar causes
of action have previously been filed against U.S. Bank and other
trustees by RMBS investors in other transactions.
There can be no assurances as to the outcome of the litigation, or
the possible impact of the litigation on the trustee or the RMBS
trusts. However, U.S. Bank denies liability and believes that it
has performed its obligations under the RMBS trusts in good faith,
that its actions were not the cause of losses to investors and
that it has meritorious defenses, and it intends to contest the
plaintiffs' claims vigorously.
FREEDOM INDUSTRIES: Judge Rejects $6.7MM Bankruptcy Plan
--------------------------------------------------------
The Associated Press reports that a judge has rejected a $6.7
million bankruptcy plan by the company behind a January 2014
chemical spill in West Virginia.
In a federal bankruptcy court filing on May 13, Judge Ronald
Pearson said Freedom Industries and state environmental regulators
haven't agreed on cleanup terms at the Charleston spill site.
Judge Pearson ordered Freedom to comply with state cleanup orders.
Freedom's plan would have offered spill victims $2.7 million.
The spill contaminated 300,000 residents' tap water for days.
Businesses that couldn't operate without water, including
restaurants, and individuals are seeking compensation.
Professionals hired for the bankruptcy case would have received
$2.2 million. Among other distributions, $150,000 would go toward
spill site cleanup. Regulators want $1 million.
An insurance settlement would provide $3.2 million. Ex-Freedom
officials would contribute $3.1 million, which Judge Pearson said
initially seems inadequate.
GERON CORPORATION: Hearing Scheduled on Bid to Dismiss Class Suit
-----------------------------------------------------------------
Geron Corporation said in its Form 10-K Report filed with the
Securities and Exchange Commission on March 11, 2015, for the
fiscal year ended December 31, 2014, that the court hearing for
the motion to dismiss a class action lawsuit was scheduled for
April 10, 2015.
The Company said, "On March 14, 2014, a purported securities class
action lawsuit was commenced in the United States District Court
for the Northern District of California, or the California
District Court, naming as defendants us and certain of our
officers. The lawsuit alleges violations of the Securities
Exchange Act of 1934 in connection with allegedly false and
misleading statements made by us related to our Phase 2 trial of
imetelstat in patients with ET or PV. The plaintiff alleges, among
other things, that we failed to disclose facts related to the
occurrence of persistent low-grade LFT abnormalities observed in
our Phase 2 trial of imetelstat in ET or PV patients and the
potential risk of chronic liver injury following long-term
exposure to imetelstat. The plaintiff seeks damages and an award
of reasonable costs and expenses, including attorneys' fees."
"On March 28, 2014, a second purported securities class action
lawsuit was commenced in the California District Court, and on
June 6, 2014, a third purported securities lawsuit, not styled as
a class action, was commenced in the United States District Court
for the Southern District of Mississippi, or the Mississippi
District Court, naming as defendants us and certain of our
officers. These lawsuits, which are based on the same factual
background as the purported securities class action lawsuit that
commenced on March 14, 2014, also allege violations of the
Securities Exchange Act of 1934 and seek damages and an award of
reasonable costs and expenses, including attorneys' fees.
"On June 30, 2014, the California District Court consolidated both
of the purported class actions filed in the California District
Court and appointed a lead plaintiff and lead counsel to represent
the purported class. On July 21, 2014, the California District
Court ordered the lead plaintiff to file its consolidated amended
complaint, which was filed on September 19, 2014. On August 11,
2014, we filed a motion to transfer the purported securities
lawsuit filed in the Mississippi District Court to the California
District Court. On November 4, 2014, the Mississippi District
Court granted our motion and transferred the case to the
California District Court, which was thereafter consolidated with
the class actions.
"We filed our motion to dismiss the consolidated amended complaint
on November 18, 2014. The plaintiff's opposition was filed on
January 20, 2015, and we filed our reply on February 25, 2015. The
court hearing for the motion to dismiss has been scheduled for
April 10, 2015. It is possible that additional suits will be
filed, or allegations made by stockholders, with respect to these
same or other matters and also naming us and/or our officers and
directors as defendants. We believe that we have meritorious
defenses and intend to defend against these lawsuits vigorously."
HEWLETT-PACKARD: Removed "Adkins" Suit to N.D. California
---------------------------------------------------------
Hewlett-Packard Company removed the class action lawsuit entitled
Maury Adkins v. Hewlett-Packard Company, Case No. 115CV278849,
from the Superior Court of the State of California to the U.S.
District Court California Northern District (San Jose). The
District Court Clerk assigned Case No. 5:15-cv-02035-PSG.
The Plaintiff asserts causes of action under the California's
Consumers Legal Remedies Act, California Unfair Competition Law,
and the Massachusetts Consumer Protection Act. The Plaintiff
contends that Hewlett-Packard violated state laws by failing to
provide repairs for HP computers sold through third party
retailers that would have been covered the one-year Limited
Warranty period prior to the purchase date.
The Plaintiff is represented by:
Adam Gutride, Esq.
Marie Ann McCrary, Esq.
Seth Adam Safier, Esq.
GUTRIDE SAFIER LLP
100 Pine Street, Suite 1250
San Francisco, CA 94111
Telephone: (415) 789-6390
Facsimile: (415) 449-6469
E-mail: adam@gutridesafier.com
marie@gutridesafier.com
seth@gutridesafier.com
The Defendant is represented by:
Franco A. Corrado, Esq.
MORGAN, LEWIS AND BOCKIUS LLP
1701 Market Street
Philadelphia, PA 19103
Telephone: (215) 963-5000
E-mail: fcorrado@morganlewis.com
- and -
Lucy Han Wang, Esq.
Donn P. Pickett, Esq.
MORGAN, LEWIS & BOCKIUS LLP
One Market, Spear Street Tower
San Francisco, CA 94105
Telephone: (415) 442-1132
Facsimile: (415) 442-1001
E-mail: lucy.wang@morganlewis.com
donn.pickett@morganlewis.com
HEWLETT-PACKARD: June 8 Final Approval Hearing in Cunningham Case
-----------------------------------------------------------------
Hewlett-Packard Company said in its Form 10-Q Report filed with
the Securities and Exchange Commission on March 11, 2015, for the
quarterly period ended January 31, 2015, that the final approval
hearing is scheduled for June 8, 2015, in the Cunningham class
action.
Cunningham and Cunningham, et al. v. Electronic Data Systems
Corporation is a purported collective action filed 0on May 10,
2006 in the United States District Court for the Southern District
of New York claiming that current and former EDS employees
allegedly involved in installing and/or maintaining computer
software and hardware were misclassified as exempt employees.
Another purported collective action, Steavens, et al. v.
Electronic Data Systems Corporation, was filed on October 23, 2007
in the same court alleging similar facts. The Steavens case has
been consolidated for pretrial purposes with the Cunningham case.
On December 14, 2010, the court granted conditional certification
of a class consisting of employees in 20 legacy EDS job codes in
the consolidated Cunningham and Steavens matter. On December 11,
2013, HP and plaintiffs' counsel in the consolidated
Cunningham/Steavens matter, and the Salva matter, mediated these
cases and reached a settlement agreement. The court preliminarily
approved the settlement on November 4, 2014. The final approval
hearing is scheduled for June 8, 2015.
Salva v. Hewlett-Packard Company is a purported collective action
filed on June 15, 2012 in the United States District Court for the
Western District of New York alleging that certain information
technology employees allegedly involved in installing and/or
maintaining computer software and hardware were misclassified as
exempt employees under the Fair Labor Standards Act. On December
11, 2013, HP and plaintiffs' counsel in the consolidated
Cunningham/Steavens matter and the Salva matter mediated these
cases and reached a settlement agreement. The court consolidated
the Salva matter into the Cunningham/Steavens matter and
preliminarily approved the settlement on November 4, 2014. The
final approval hearing is scheduled for June 8, 2015.
HEWLETT-PACKARD: "Karlbom" Case Parties Engaged in Discovery
------------------------------------------------------------
Hewlett-Packard Company said in its Form 10-Q Report filed with
the Securities and Exchange Commission on March 11, 2015, for the
quarterly period ended January 31, 2015, that Karlbom, et al. v.
Electronic Data Systems Corporation is a class action filed on
March 16, 2009 in California Superior Court alleging facts similar
to the Cunningham and Steavens matters. The parties are engaged in
discovery.
HEWLETT-PACKARD: "Benedict" Case Parties Engaged in Discovery
-------------------------------------------------------------
Hewlett-Packard Company said in its Form 10-Q Report filed with
the Securities and Exchange Commission on March 11, 2015, for the
quarterly period ended January 31, 2015, that parties in the case
Benedict v. Hewlett-Packard Company are engaged in discovery.
Benedict v. Hewlett-Packard Company is a purported collective
action filed on January 10, 2013 in the United States District
Court for the Northern District of California alleging that
certain technical support employees allegedly involved in
installing, maintaining and/or supporting computer software and/or
hardware for HP were misclassified as exempt employees under the
Fair Labor Standards Act. The plaintiff has also alleged that HP
violated California law by, among other things, allegedly
improperly classifying these employees as exempt. On February 13,
2014, the court granted the plaintiff's motion for conditional
class certification. The parties are engaged in discovery.
HEWLETT-PACKARD: Oral Argument Not Scheduled in Cement & Concrete
-----------------------------------------------------------------
Hewlett-Packard Company said in its Form 10-Q Report filed with
the Securities and Exchange Commission on March 11, 2015, for the
quarterly period ended January 31, 2015, that oral argument has
not yet been scheduled in the appeal in the case filed by Cement &
Concrete Workers District Council Pension Fund.
Cement & Concrete Workers District Council Pension Fund v.
Hewlett-Packard Company, et al. is a putative securities class
action filed on August 3, 2012 in the United States District Court
for the Northern District of California alleging, among other
things, that from November 13, 2007 to August 6, 2010 the
defendants violated Sections 10(b) and 20(a) of the Exchange Act
by making statements regarding HP's Standards of Business Conduct
("SBC") that were false and misleading because Mr. Hurd, who was
serving as HP's Chairman and Chief Executive Officer during that
period, had been violating the SBC and concealing his misbehavior
in a manner that jeopardized his continued employment with HP. On
February 7, 2013, the defendants moved to dismiss the amended
complaint. On August 9, 2013, the court granted the defendants'
motion to dismiss with leave to amend the complaint by September
9, 2013. The plaintiff filed an amended complaint on September 9,
2013, and the defendants moved to dismiss that complaint on
October 24, 2013. On June 25, 2014, the court issued an order
granting the defendants' motions to dismiss and on July 25, 2014,
plaintiff filed a notice of appeal to the United States Court of
Appeals for the Ninth Circuit. On November 4, 2014, the plaintiff-
appellant filed its opening brief in the Court of Appeals for the
Ninth Circuit. HP filed its answering brief on January 16, 2015
and the plaintiff-appellant's reply brief was filed on March 2,
2015. Oral argument has not yet been scheduled.
HEWLETT-PACKARD: Hearing Held on Cert. Bid in Securities Case
-------------------------------------------------------------
Hewlett-Packard Company said in its Form 10-Q Report filed with
the Securities and Exchange Commission on March 11, 2015, for the
quarterly period ended January 31, 2015, that the hearing on the
motion for class certification was scheduled for March 20, 2015,
in the case HP Securities Litigation.
In re HP Securities Litigation consists of two consolidated
putative class actions filed on November 26 and 30, 2012 in the
United States District Court for the Northern District of
California alleging, among other things, that from August 19, 2011
to November 20, 2012, the defendants violated Sections 10(b) and
20(a) of the Exchange Act by concealing material information and
making false statements related to HP's acquisition of Autonomy
and the financial performance of HP's enterprise services
business. On May 3, 2013, the lead plaintiff filed a consolidated
complaint alleging that, during that same period, all of the
defendants violated Sections 10(b) and 20(a) of the Exchange Act
and SEC Rule 10b-5(b) by concealing material information and
making false statements related to HP's acquisition of Autonomy
and that certain defendants violated SEC Rule 10b-5(a) and (c) by
engaging in a "scheme" to defraud investors. On July 2, 2013, HP
filed a motion to dismiss the lawsuit. On November 26, 2013, the
court granted in part and denied in part HP's motion to dismiss,
allowing claims to proceed against HP and Margaret C. Whitman
based on alleged statements and/or omissions made on or after May
23, 2012. The court dismissed all of the plaintiff's claims that
were based on alleged statements and/or omissions made between
August 19, 2011 and May 22, 2012. The lead plaintiff filed a
motion for class certification on November 4, 2014 and, on
December 15, 2014, defendants filed their opposition to the
motion. The hearing on the motion for class certification was
scheduled for March 20, 2015.
HEWLETT-PACKARD: Awaits Ruling on Bid to Dismiss ERISA Litigation
-----------------------------------------------------------------
Hewlett-Packard Company said in its Form 10-Q Report filed with
the Securities and Exchange Commission on March 11, 2015, for the
quarterly period ended January 31, 2015, that HP is awaiting a
ruling from the court on its move to dismiss the second amended
complaint in the HP ERISA Litigation.
In re HP ERISA Litigation consists of three consolidated putative
class actions filed beginning on December 6, 2012 in the United
States District Court for the Northern District of California
alleging, among other things, that from August 18, 2011 to
November 22, 2012, the defendants breached their fiduciary
obligations to HP's 401(k) Plan and its participants and thereby
violated Sections 404(a)(1) and 405(a) of the Employee Retirement
Income Security Act of 1974, as amended, by concealing negative
information regarding the financial performance of Autonomy and
HP's enterprise services business and by failing to restrict
participants from investing in HP stock. On August 16, 2013, HP
filed a motion to dismiss the lawsuit.
On March 31, 2014, the court granted HP's motion to dismiss this
action with leave to amend. On July 16, 2014, the plaintiffs filed
a second amended complaint containing substantially similar
allegations and seeking substantially similar relief as the first
amended complaint. HP moved to dismiss the second amended
complaint and a hearing on the motion was held on February 13,
2015. HP is awaiting a ruling from the court.
HILLS BANCORPORATION: Parties Put Case Against Hills Bank on Hold
-----------------------------------------------------------------
Hills Bancorporation said in its Form 10-K Report filed with the
Securities and Exchange Commission on March 11, 2015, for the
fiscal year ended December 31, 2014, that parties have put the
case against Hills Bank and Trust Company on hold pending a ruling
by the Iowa Supreme Court in an appeal filed by West Bank on a
similar issue under dispute in the Hills Bank case.
On April 24, 2014, a suit was filed against the Bank in the Iowa
District Court for Johnson County by a customer alleging that the
fees associated with the Bank's automated overdraft program in
connection with its debit and ATM cards constitute unlawful
interest in violation of Iowa's usury laws and that the collection
of such interest violates the Iowa Debt Collection Practices Act.
The suit seeks class-action status for Bank customers who have
paid overdraft fees arising from debit or ATM card transactions on
their consumer accounts. The Bank filed a motion to dismiss the
case, which the Court denied. The Bank filed an application for
interlocutory appeal to the Iowa Supreme Court, which the Court
denied. The parties and District Court have put the case on hold
pending a ruling by the Iowa Supreme Court in an appeal filed by
West Bank on a similar issue under dispute in the Hills Bank case.
At this stage of the proceedings, it is not possible for
management of the Bank to determine the probability of a material
adverse outcome or reasonably estimate the amount of any potential
loss.
ITRO TRUCKING: Fails to Pay Employees Overtime, Suit Claims
-----------------------------------------------------------
Jose De La Cruz and Thomas Delgado, on behalf of themselves and
all others similarly situated v. Itro Trucking, LLC f/k/a Ortiz
Trucking and Alma Ortiz, Case No. 5:15-cv-00367 (W.D. Tex., May 6,
2015), is brought against the Defendants for failure to pay
overtime wages for work performed in excess of 40 hours per week.
The Defendants provide products and services to the pressure
pumping segment of the oil and gas industry.
The Plaintiff is represented by:
Allen R. Vaught, Esq.
BARON AND BUDD PC
3102 Oak Lawn Ave-Ste 1100
Dallas, TX 75219
Telephone: (214) 521-3605
Facsimile: (214) 520-1181
E-mail: avaught@baronbudd.com
JOLIET STAFFING: Faces "Creal" Suit Over Failure to Pay Overtime
----------------------------------------------------------------
Kyle Creal and Lawana Sterret, on behalf of themselves and all
other persons similarly situated, known and unknown v. Joliet
Staffing LLC, Case No. 1:15-cv-04013 (N.D. Ill., May 6, 2015), is
brought against the Defendants for failure to pay overtime wages
for work performed in excess of 40 hours per week.
Joliet Staffing LLC is engaged in the business of employing day or
temporary laborers to provide services, for a fee, to third party
client companies.
The Plaintiff is represented by:
Christopher J. Williams, Esq.
Alvar Ayala, Esq.
WORKERS' LAW OFFICE, PC
53 W Jackson Blvd., Suite 701
Chicago, IL 60604
Telephone: (312) 795-9121
Facsimile: (312) 929-2207
E-mail: cwilliams@wagetheftlaw.com
aayala@wagetheftlaw.com
KRAFT FOODS: Faces "Klocke" Suit in Va. Over Illegal Company Sale
-----------------------------------------------------------------
John Klocke and Michael Reed, individually and on behalf of all
others similarly situated v. Kraft Foods Group, Inc., et al., Case
No. 3:15-cv-00281-JRS (E.D. Va., May 6, 2015), arises out of the
Defendant's breaches of fiduciary duties in connection with the
planned acquisition of the Company by H.J. by means of an unfair
process and for inadequate consideration.
Kraft Foods Group, Inc. is a consumer packaged goods company which
maintains its principal executive offices at Three Lakes Drive,
Northfield, Illinois, 60093.
The Plaintiff is represented by:
Elizabeth Kathleen Tripodi, Esq.
LEVI & KORSINSKY LLP
1101 30th Street NW, Suite 115
Washington, DC 20007
Telephone: (202) 524-4290
Facsimile: (202) 333-2121
E-mail: etripodi@zlk.com
LA TAPATIA: Falsely Marketed Tortilla Products, Action Claims
-------------------------------------------------------------
Victor Guttmann, on behalf of himself and all others similarly
situated v. La Tapatia Tortilleria, Inc., Case No. 3:15-cv-02042
(N.D. Cal., May 6, 2015), arises out of the Defendant's false and
misleading claims that its Trans Fat Tortilla products are
healthful and not harmful to the cardiovascular system, when in
fact the products contain dangerous levels of PHO.
PHO is a food additive banned in many parts of the world due to
its artificial trans-fat content, which is known to be a toxic
carcinogen.
The Plaintiff is represented by:
Gregory S. Weston, Esq.
Paul K. Joseph, Esq.
THE WESTON FIRM
1405 Morena Blvd., Suite 201
San Diego, CA 92110
Telephone: (619) 798-2006
Facsimile: (480) 247-4553
E-mail: greg@westonfirm.com
paul@westonfirm.com
LAKES ENTERTAINMENT: Faces Shareholder Class Action Lawsuits
------------------------------------------------------------
Lakes Entertainment, Inc. said in its Form 10-K Report filed with
the Securities and Exchange Commission on March 12, 2015, for the
fiscal year ended December 28, 2014, that on February 6, 2015,
Lakes, the members of the Lakes' Board of Directors, LG
Acquisition Corporation, Sartini Gaming, Inc., and the Blake L.
Sartini and Delise F. Sartini Family Trust were named as
defendants in two complaints filed in the District Court of the
State of Minnesota, Fourth Judicial District in Hennepin County.
The cases are captioned James Orr, Individually and on Behalf of
All Others Similarly Situated, as Plaintiff, vs. Lakes
Entertainment, Inc., LG Acquisition Corporation, Sartini Gaming,
Inc., Lyle A. Berman, Timothy J. Cope, Larry C. Barenbaum, Neil I.
Sell, Ray M. Moberg, and the Blake L. Sartini and Delise F.
Sartini Family Trust, as Defendants, and Anthony Dacquisito, On
Behalf of Himself and All Others Similarly Situated vs. Larry
Barenbaum, Lyle Berman, Neil Sell, Ray Moberg, Timothy Cope, LG
Acquisition Corporation, Sartini Gaming, Inc., and the Blake L.
Sartini and Delise F. Sartini Family Trust, as Defendants. These
are purported shareholder class action lawsuits brought by two of
Lakes' shareholders on behalf of themselves and others similarly
situated, alleging that in entering into the proposed transaction
with Golden Gaming, the Defendants have breached their fiduciary
duties of good faith, loyalty and due care, and/or have aided and
abetted such breaches. The Plaintiffs seek, among other things, to
enjoin the transactions contemplated by the Merger Agreement and
attorney's fees. An unfavorable outcome in these lawsuits could
prevent or delay the consummation of the Merger, result in
substantial costs to Lakes, or both. It is also possible that
other lawsuits may yet be filed and Lakes cannot estimate any
possible loss from this or future litigation at this time.
MARBAR VENTURE: Faces "Fleener" Suit Over Failure to Pay Overtime
-----------------------------------------------------------------
Meagan Fleener, on behalf of herself individually, and all others
similarly situated v. Marbar Venture Corp., Case No. 4:15-cv-01206
(S.D. Tex., May 6, 2015), is brought against the Defendant for
failure to pay overtime wages in violation of the Fair Labor
Standard Act.
Marbar Venture Corp. owns and operates a bar and club located at
2810 Gulf Freeway, Suite L, Webster, Texas 77598.
The Plaintiff is represented by:
Joe Micah Williams, Esq.
THE LAW OFFICES OF JOE M. WILLIAMS & ASSOCIATES
810 Highway 6 South, Ste 111
Houston, TX 77079
Telephone: (832) 230-4125
Facsimile: (832) 230-5310
E-mail: jwilliams10050@gmail.com
MASTEC NORTH: Faces "Lockett" Suit Over Failure to Pay Overtime
---------------------------------------------------------------
David K. Lockett v. Mastec North America, Inc. a/k/a Mastec, Inc.,
and Jose R. Mas, Case No. 1:15-cv-21717-JEM (S.D. Fla., May 6,
2015), is brought against the Defendant for failure to pay
overtime wages in violation of the Fair Labor Standard Act.
The Defendants offer satellite and direct television installation
services.
The Plaintiff is represented by:
Jodi J. Jaffe, Esq.
Andrew Ira Glenn, Esq.
JAFFE GLENN LAW GROUP PA
Lawrence Office Park
168 Franklin Corner Road
Building 2, Suite 220
Larenceville, NJ 08648
Telephone: (305) 726-0060
Facsimile: (305) 726-0046
E-mail: Jaffe.glenn@me.com
aglenn@jaffeglenn.com
MATHEWS PRIME: Delivery Workers Win Favorable Ruling in OT Suit
---------------------------------------------------------------
Andrew Keshner, writing for New York Law Journal, reports that a
food distribution company failed to convince a judge that delivery
workers who claim they are owed overtime pay fall within
exemptions to the Fair Labor Standards Act's overtime rules.
Citing issues of fact, Eastern District Judge Arthur Spatt on
April 28 denied a summary judgment motion filed by Mathews Prime
Meats.
"At this stage of the litigation, the court finds that the
defendants cannot avoid [Fair Labor Standards Act] overtime
liability, as a matter of law, by virtue of the motor carrier
exemption," Judge Spatt wrote in Osorio v. Mathews Prime Meats,
13-cv-1292.
Delivery workers Jose Osorio and Roman Xolocotzi filed a putative
class action suit against Mathews Prime Meats and its owner,
Mathew Koinis, seeking to recover overtime pay.
The defense said the plaintiffs fell under the motor carrier
exemption to the labor law's rules on overtime. The exemption
provides that the Fair Labor Standards Act's overtime provision
does not apply "to any employee with respect to whom the Secretary
of Transportation has power to establish qualifications and
maximum hours of service."
For an employee to be exempt, Judge Spatt said, the employer had
to be under the "jurisdiction of the Secretary of Transportation
by virtue of operating as a motor carrier or motor private
carrier."
Moreover, the employee had to be "engaged in activities that
affect the safety of operation of motor vehicles transporting
property in interstate commerce," he said.
The parties dispute whether plaintiffs engaged in activities
connected to what could be deemed interstate commerce. For
purposes of the exemption, the interstate commerce requirement is
met if goods transported within a state are "involved in a
practical continuity of movement in the flow of interstate
commerce."
But the exemption does not apply when items are delivered from out
of state to an in-state destination such as a warehouse, for
future delivery to a yet-unidentified customer.
Along those lines, it was not disputed that any transport within
the state of goods ordered by out-of-state customers amounted to
"interstate commerce" for the motor carrier exemption.
But the two sides disagreed on how much of the plaintiff's
activities within the state "were of this character, and whether
this quantum of activities was sufficient to bring them under the
[Department of Transportations's] jurisdiction."
Judge Spatt said there were factual issues pertaining to the
method by which the company "assigned the interstate and
intrastate activity to the plaintiffs."
Another factual issue dealt with weighing the frequency of one
sort of route versus another, he said. One of the sorts of routes
were those within the state that were "based on products ordered
from out of state to be delivered to specific customers."
The other routes were those within the state that were "filled
based on products from Mathew Prime's inventory."
Though the defense offered a list of some 100 "special orders"
from out-of-state entities to be delivered in-state, Judge Spatt
said the document was "short on detail, including dates and
costs."
Moreover there was no indication the list was made "in the
ordinary course of business," which would make it admissible at
trial as an exception to the rule against hearsay.
"In the court's view, the motor carrier exemption does not
'plainly and unmistakably' apply at this time," Judge Spatt said.
The plaintiffs are represented by Jose Santiago and Alireza
Hedayati, both of Hauppauge. Santiago said he was "excited the
judge took the time to really look at the nuances of this case."
He estimated each of the plaintiffs were owed more than $60,000.
The defendants are represented by Robert Lipman and David Robins
of Lipman & Plesur in Jericho, as well as James O'Brien of
Jericho.
Mr. Lipman declined to comment.
MATTRESS FIRM: Fails to Pay Managers OT, "Maurici" Suit Claims
--------------------------------------------------------------
Ryan Maurici, on behalf of himself and on behalf of all others
similarly situated v. Mattress Firm, Inc., Case No. 8:15-cv-01083
(M.D. Fla., May 6, 2015), is brought against the Defendant for
failure to pay its Managers on Duty overtime compensation as
required by the Fair Labor Standard Act.
Mattress Firm, Inc. is a specialty bedding company with its
headquarters located at 5815 Gulf Freeway, Houston, Texas.
The Plaintiff is represented by:
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: lcabassa@wfclaw.com
MAYWEATHER PROMOTIONS: Faces "Baker" Suit Over Pacquiao's Injury
----------------------------------------------------------------
Spencer Barker and Brigette Barker individually, and on behalf of
others similarly situated, et al. v. Mayweather Promotions, LLC et
al, Case No. 0:15-cv-60949 (S.D. Fla., May 6, 2015), is an action
for damages as a proximate result of the Defendants' failure to
disclose the Nevada Athletic Commission the injuries suffered by
Pacquiao prior to the fight between Manny Pacquiao and Floyd
Mayweather held May 2, 2015.
Mayweather Promotions, LLC is a Nevada limited liability company
that owns and operates a boxing promotional firm with its
principal place of business at 4616 West Sahara Avenue, #290, Las
Vegas, Nevada 89102.
The Plaintiff is represented by:
Gregg Adam Schlesinger, Esq.
Sheldon J. Schlesinger, Esq.
Jeffrey Louis Haberman, Esq.
SCHLESINGER LAW OFFICE, P.A.
1212 SE 3rd Avenue
Fort Lauderdale, FL 33316
Telephone: (954) 467-8800
Facsimile: 523-4803
E-mail: gschlesinger@schlesingerlaw.com
sschlesinger@schlesingerlaw.com
JHaberman@schlesingerlaw.com
- and -
Thomas Peter Angelo, Esq.
Eric Corey Edison, Esq.
ANGELO & BANTA, P.A.
515 East Las Olas Boulevard, Suite 850
Fort Lauderdale, FL 33301
Telephone: (954) 766-9930
Facsimile: (954) 766-9937
E-mail: tpa@angelolaw.com
ece@angelolaw.com
- and -
Jonathan Gdanski, Esq.
SHELDON J. SCHLESINGER PA
1212 SE 3rd Avenue
Fort Lauderdale, FL 33316
Telephone: (954) 467-8800
Facsimile: (954) 523-4803
E-mail: Jonathan@schlesingerlawoffices.com
MGA RESEARCH: "Schultz" Suit Seeks to Recover Unpaid OT Wages
-------------------------------------------------------------
Jelena Schultz and Thomas Miller, on behalf of himself and others
similarly situated v. MGA Research Corporation, Case No. 1:15-cv-
00594-TSE-MSN (E.D. Va., May 6, 2015), seeks to recover unpaid
overtime wages, liquidated damages and attorneys' fees pursuant to
the Fair Labor Standard Act.
MGA Research Corporation is engaged in the business of providing
crash testing equipment and services doing business in Virginia,
New York, Alabama, Wisconsin, Michigan, South Carolina, and
Canada.
The Plaintiff is represented by:
Craig Alan Brown, Esq.
Virginia Rae Diamond, Esq.
ASHCRAFT & GEREL LLP
4900 Seminary Rd, Suite 650
Alexandria, VA 22311
Telephone: (703) 931-5500
E-mail: cbrown@ashcraftlaw.com
vdiamond@ashcraftlaw.com
NVIDIA CORPORATION: Plaintiffs File Certiorari Petition
-------------------------------------------------------
Nvidia Corporation said in its Form 10-K Report filed with the
Securities and Exchange Commission on March 12, 2015, for the
fiscal year ended January 25, 2015, that Plaintiffs in a class
action lawsuit filed a petition for writ of certiorari to the
United States Supreme Court.
The Company said, "In September 2008, three putative securities
class actions were filed in the United States District Court for
the Northern District of California arising out of our
announcements on July 2, 2008, that we would take a charge against
cost of revenue to cover anticipated costs and expenses arising
from a weak die/packaging material set in certain versions of our
previous generation MCP and GPU products and that we were revising
financial guidance for our second quarter of fiscal year 2009. The
actions purport to be brought on behalf of purchasers of NVIDIA
stock and assert claims for violations of Sections 10(b) and 20(a)
of the Securities Exchange Act of 1934, as amended."
"On January 22, 2010, Plaintiffs filed a Consolidated Amended
Class Action Complaint, asserting claims for violations of Section
10(b), Rule 10b-5, and Section 20(a) of the Securities Exchange
Act and seeking unspecified compensatory damages. We moved to
dismiss the consolidated complaint and on October 19, 2010, Judge
Seeborg granted our motion with leave to amend. On December 2,
2010, Plaintiffs filed a Second Consolidated Amended Complaint. We
again moved to dismiss and on October 12, 2011, Judge Seeborg
again granted our motion to dismiss, this time denying Plaintiffs
leave to amend. On November 8, 2011, Plaintiffs filed a Notice of
Appeal to the Ninth Circuit. Oral argument was held on January 14,
2014. On October 2, 2014, the Ninth Circuit issued an order
affirming the dismissal. On October 16, 2014, Plaintiffs requested
a rehearing or en banc review of the Ninth Circuit's opinion
affirming the dismissal. Plaintiffs' request was denied on
November 10, 2014. On February 9, 2015, Plaintiffs filed a
petition for writ of certiorari to the United States Supreme
Court."
PFIZER INC: Plaintiff's Expert Witness Can Testify in Zoloft Suit
-----------------------------------------------------------------
P.J. D'Annunzio, writing for The Legal Intelligencer, reports that
a medical expert in a state-court Zoloft case has been allowed by
a Philadelphia judge to testify the drug can increase the risk of
heart-related birth defects when taken by pregnant women.
Philadelphia Court of Common Pleas Judge Mark I. Bernstein ruled
Dr. Nicholas Jewell's testimony on causation in Robinson v.
Wolters Kluwer Health was permissible, despite the defendants'
claims that the methodology of Dr. Jewell's conclusions about
prenatal heart defects and its connection to the drug was flawed.
Judge Bernstein's ruling comes before a federal judge has had the
chance to determine whether Jewell can testify in the Zoloft MDL
in the Eastern District of Pennsylvania. A hearing on that issue
is scheduled for June 1. His testimony in both courts would seek
to prove that Zoloft, made by Pfizer, causes heart defects in
babies born to mothers who take the drug rather than all of the
various defects that other expert testimony would have sought to
link to the drug.
The defense argued Dr. Jewell improperly lumped birth-defect data
together when coming to his conclusions on general causation
instead of looking at instances of heart defects, specifically the
plaintiff's condition: transposition of the great arteries or TGA.
However, in his memorandum, Bernstein said TGA is an
"exceptionally rare brith defect," and that there are only a small
number of studies published on it in medical literature.
Therefore, lumping it with other studies is not inappropriate.
"Dr. Jewell conceded that there is insufficient information to
isolate TGA birth defects," Judge Bernstein said. "Likewise, the
defense agrees that the TGA brith defects isolated in the studies
are too few for statistically significant associations to be
found. The failure to find statistically significant results is
because of the size of the populations in the studies and the
infrequency with which TGA birth defects occur. Specific birth
defects can be so finely isolated that insufficient numbers exist
to ever demonstrate statistically significant results."
Judge Bernstein said Dr. Jewell used the appropriate methodology
when examining the studies.
"Under those circumstances, logic dictates and proper scientific
methodology approves the necessity of grouping results,"
Judge Bernstein said. "Not only was this methodology used by
Dr. Jewell, but also used by investigators in peer reviewed
published studies, defendants' experts, and Pfizer's employees."
If adverse consequences are finely differentiated, Mr. Bernstein
added, statistical significance cannot be found due to the
insufficient number of examples.
"Sometimes proper scientific conclusions must be extrapolated from
the available data," Judge Bernstein said.
Judge Bernstein pointed to the Superior Court case of Trach v.
Fellin as an example of making cause-and-effect conclusions when
data is limited.
In Trach, the plaintiff was given the wrong medication by a
pharmacy, and ingested six times the maximum allowable dosage of
an antidepressant.
"Of course there never could be any studies to determine the long-
term effects of taking six times the maximum permissible dosage of
an antidepressant medication," Judge Bernstein said. "Plaintiff's
expert testified by extrapolating from the known side effects of
the medication taken to opine as to the long-term effects."
The Superior Court had decided the method was logical to infer
that which is unknown from that which is known.
As for specific causation, another of the plaintiff's experts
ruled out other medications, diabetes, gestational diabetes,
obesity, smoking, alcohol use, illegal drug use and secondhand
smoke as the cause of Mia Robinson's cardiac birth defects.
Judge Bernstein said the clinical judgment of the expert,
identified as Dr. Abdullah in the opinion, was permissible
testimony.
"Since this court has found that the opinion that Zoloft can cause
heart birth defects is permissible, it is logically and
necessarily permissible that the specific causation experts be
permitted to testify and plaintiff permitted to argue that the
ingestion of Zoloft during pregnancy increased the risk of birth
defects of the heart," Mr. Bernstein said.
Robert Heim of Dechert, representing the defense, did not return a
call seeking comment, nor did the plaintiff's attorney, Rosemary
Pinto of Feldman & Pinto.
In an email to The Legal, a Pfizer spokesperson wrote, "The ruling
is procedural and not a determination on the merits of the claims,
which the plaintiffs must ultimately prove at trial. Pfizer
remains confident that there is no reliable scientific evidence
demonstrating that Zoloft causes the injuries alleged by the
plaintiffs. This position is supported by a range of independent
expert organizations, such as the American Psychiatric
Association, American College of Obstetricians and Gynecologists
and the American Heart Association, all of whom have found that
Zoloft's use during pregnancy is not associated with birth
defects."
PHP ENTERPRISES: Faces "Emlmerdi" Suit Over Failure to Pay OT
-------------------------------------------------------------
Ikrame Elmerdi, on behalf of herself and all others similarly
situated v. PHP Enterprises, Inc., and Prakash Patel, Case No.
1:15-cv-01604 (N.D. Ga., May 6, 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 three hotels in Atlanta, Georgia.
The Plaintiff is represented by:
Amanda A. Farahany, Esq.
Victor Severin Roberts, Esq.
BARRETT & FARAHANY, LLP
1100 Peachtree Street, NE, Suite 500
Atlanta, GA 30309
Telephone: (404) 214-0120
Facsimile: (404) 214-0125
E-mail: amanda@bf-llp.com
vsroberts@bf-llp.com
PIEDMONT PETROLEUM: "Asamoah" Suit Seeks to Recover Unpaid OT
-------------------------------------------------------------
Bettie Asamoah, on behalf of herself and all others similarly
situated v. Piedmont Petroleum Corp. and Kenneth C. Cosgrove, Case
No. 2:15-cv-01914 (D.S.C., May 5, 2015), seeks to recover unpaid
minimum wages, liquidated damages, and other relief under the Fair
Labor Standards Act.
The Defendants own and operate numerous service stations across
the State of South Carolina.
The Plaintiff is represented by:
Bruce E. Miller, Esq.
BRUCE E MILLER LAW OFFICE
147 Wappoo Creek Drive, Suite 603
Charleston, SC 29412
Telephone: (843) 579-7373
E-mail: bmiller@brucemillerlaw.com
PREMERA BLUE: Faces "Eykel" Suit Over Alleged Data Breach
---------------------------------------------------------
Erwin Eykel, individually and on behalf of all others similarly
situated v. Premera Blue Cross, Case No. 2:15-cv-00709 (W.D.
Wash., May 6, 2015), is brought against the Defendant for failure
to properly secure and protect its users' sensitive, personally-
identifiable information and personal health information from data
breach.
Premera Blue Cross is a health plan provider headquartered in
Montlake Terrace, Washington.
The Plaintiff is represented by:
Duncan C. Turner, Esq.
BADGLEY MULLINS TURNER PLLC
19929 Ballinger Way NE, Suite 200
Shoreline, WA 98155
Telephone: (206) 621-6566
Facsimile: (206) 621-9686
E-mail: dturner@badgleymullins.com
- and -
John G. Emerson, Esq.
EMERSON POYNTER LLP
830 Apollo Lane
Houston, TX 77058-2610
Telephone: (281) 488-8854
Facsimile: (281) 488-8867
E-mail: jemerson@emersonpoynter.com
- and -
Scott E. Poynter, Esq.
Will T. Crowder, Esq.
EMERSON POYNTER LLP
1301 Scott Street
Little Rock, AR 72202
Telephone: (501) 907-2555
Facsimile: (501) 907-2556
E-mail: scott@emersonpoynter.com
wcrowder@emersonpoynter.com
QC HOLDINGS: Expects Execution of Settlement to Continue
--------------------------------------------------------
QC Holdings, Inc. said in its Form 10-K Report filed with the
Securities and Exchange Commission on March 12, 2015, for the
fiscal year ended December 31, 2014, that the Company expects that
the execution of the requirements of the settlement in a class
action in Canada will continue throughout the remainder of 2015.
The Company said, "On September 30, 2011, we acquired all the
outstanding shares of Direct Credit, a British Columbia company
engaged in short-term, consumer Internet lending in certain
Canadian provinces. On October 18, 2011, Matthew Lee, an alleged
Alberta, Canada resident sued Direct Credit, all of its
subsidiaries and three former directors of those subsidiaries in
the Supreme Court of British Columbia in a purported class action.
The plaintiff alleges that Direct Credit and its subsidiaries
violated Canada's criminal usury laws by charging interest on its
loans at rates higher than 60%. The plaintiff purports to
represent all Canadian borrowers of the subsidiary who resided
outside of British Columbia."
"The parties have executed a written settlement of this matter,
subject to an audit verification of proposed settlement amounts
and receipt of required court approval of the settlement terms.
Our share of the settlement amount and ancillary expenses, net of
indemnification from the prior owners of Direct Credit, is
$500,000 (Canadian). In June 2014, our share of the settlement and
the indemnification amount due from the prior owners of Direct
Credit, were funded into a settlement trust held by an independent
third party trustee. It is expected that the settlement will be
finalized by the end of first quarter 2015, with execution of its
requirements to continue throughout the remainder of 2015."
QC HOLDINGS: California Case Trial Scheduled for Early 2016
-----------------------------------------------------------
QC Holdings, Inc. said in its Form 10-K Report filed with the
Securities and Exchange Commission on March 12, 2015, for the
fiscal year ended December 31, 2014, that the California class
action case has moved to the discovery phase with a trial
tentatively scheduled for early 2016.
The Company said, "On August 13, 2012, we were sued in the United
States District Court for the South District of California in a
putative class action lawsuit filed by Paul Stemple. Mr. Stemple
alleges that we used an automatic telephone dialing system with an
"artificial or prerecorded voice" in violation of the Telephone
Consumer Protection Act, 47 U.S.C. 227, et seq. The complaint does
not identify any other members of the proposed class, nor how many
members may be in the class."
"On September 5, 2014, the district court granted Plaintiff's
Motion for Class Certification. The certified class consists of
persons and/or entities who were never our customers, but whose
10-digit California area code cell phone numbers were listed by
our customers in the "Employment" and/or "Contacts" fields of
their loan applications, and who we allegedly called using an
Automatic Telephone Dialing System for the purpose of collecting
or attempting to collect an alleged debt from the account holder,
between August 13, 2008 and August 13, 2012. We have asked the
court to reconsider its ruling, and we expect a decision on this
motion by the end of first quarter 2015.
"While that reconsideration is pending, the case has moved to the
discovery phase with a trial tentatively scheduled for early
2016."
RCS CAPITAL: Court Issues Final Judgment in Summit Litigation
-------------------------------------------------------------
RCS Capital Corporation said in its Form 10-K Report filed with
the Securities and Exchange Commission on March 11, 2015, for the
fiscal year ended December 31, 2014, that the Court has issued a
Final Judgment and Order of Dismissal in the Summit Litigation.
The Company said, "Summit, its board of directors, the Company and
a wholly owned subsidiary formed by our company in connection with
the Summit acquisition are named as defendants in two purported
class action lawsuits (now consolidated and amended) filed by
alleged Summit shareholders on November 27, 2013 and December 12,
2013 in Palm Beach County, Florida challenging the Summit
acquisition. These lawsuits alleged, among other things, that: (i)
each member of Summit's board of directors breached his fiduciary
duties to Summit and its shareholders in authorizing the Summit
acquisition; (ii) the Summit acquisition did not maximize value to
Summit shareholders; and (iii) we and our acquisition subsidiary
aided and abetted the breaches of fiduciary duty allegedly
committed by the members of Summit's board of directors."
"On May 9, 2014, the plaintiff shareholders moved for leave to
file an amended complaint under seal. The amended complaint
asserted claims similar to those in the original complaint, added
allegations relating to the amendment of the Summit merger
agreement on March 17, 2014, and also challenged the adequacy of
the disclosures in the registration statement related to the
issuance of shares of our Class A common stock as consideration in
the Summit acquisition, the background of the transaction, the
fairness opinion issued to the Summit special committee, and
Summit's financial projections. The consolidated lawsuits sought
class-action certification, equitable relief, including an
injunction against consummation of the Summit acquisition on the
agreed-upon terms, and damages.
"On May 27, 2014, the parties to the consolidated action entered
into a Memorandum of Understanding setting forth their agreement
in principle to settle the consolidated action and, on September
15, 2014, the parties signed a stipulation of settlement and the
Company recorded a provision, for its portion of the negotiated
attorney's fees payment. The same day, plaintiffs filed a motion
seeking preliminary approval of the settlement and, on October 6,
2014, the Court entered the preliminary approval order. The Final
Judgment and Order of Dismissal were issued by the Court on
January 9, 2015.
RCS CAPITAL: Continues to Defend Against ARCH Trust Litigation
--------------------------------------------------------------
RCS Capital Corporation said in its Form 10-K Report filed with
the Securities and Exchange Commission on March 11, 2015, for the
fiscal year ended December 31, 2014, that defendants continue to
defend against the American Realty Capital Healthcare Trust
Litigation.
In connection with the proposed acquisition by Ventas, Inc.
("Ventas") of all the outstanding stock of American Realty Capital
Healthcare Trust, Inc. ("ARCH"), purported shareholders of ARCH
have filed multiple class action lawsuits in the Circuit Court for
Baltimore City, Maryland and other jurisdictions. Two of these
actions named Realty Capital Securities among others, as a
defendant. The actions are: Shine v. American Realty Capital
Healthcare Trust, Inc. et al filed June 13, 2014 and Abbassi, et
al. v. American Realty Capital Healthcare Trust, Inc. et al. filed
July 9, 2014. The actions also assert derivative claims on behalf
of ARCH against Realty Capital Securities.
On October 10, 2014, lead plaintiffs in the Maryland state court
action filed a "Consolidated Amended Derivative and Direct Class
Action Complaint," asserting direct and derivative claims of
aiding and abetting a breach of fiduciary duty against multiple
defendants, including Realty Capital Securities, arising from
their roles providing services to ARCH in connection with the
proposed acquisition of ARCH by Ventas and seek (i) to enjoin the
proposed acquisition and (ii) recover damages if the proposed
acquisition is completed. A similar shareholder action, Rosenzweig
v. American Realty Capital Healthcare Trust, Inc. et al, 1:14-cv-
02019-GLR, was filed in federal court for the District of
Maryland.
On January 2, 2015 and January 5, 2015, the parties to the
consolidated state court action and the Rosenzweig action executed
separate memoranda of understanding regarding settlement of all
claims asserted on behalf of each alleged class of ARCH
stockholders in each case. In connection with the settlement
contemplated by that memoranda of understanding, each action and
all claims asserted therein will be dismissed, subject to approval
by each applicable court. Pursuant to the executed memoranda of
understanding, ARCH made certain additional disclosures related to
the Ventas transaction. The memoranda of understanding further
contemplate that the parties will enter into a stipulation of
settlement, which will be subject to customary conditions, upon
the conclusion of confirmatory discovery and court approval
following notice to ARCH's stockholders. If the parties enter into
a stipulation of settlement, a hearing will be scheduled at which
the court will consider the fairness, reasonableness and adequacy
of the settlement. There can be no assurance that the parties will
ultimately enter into a stipulation of settlement, that the
applicable court will approve any proposed settlement, or that any
eventual settlement will be under the same terms as those
contemplated by the memorandum of understanding.
The Company believes that such lawsuits are without merit, but the
ultimate outcome of the matter cannot be predicted with certainty.
Neither the outcome of the lawsuits nor an estimate of a probable
loss or any reasonable possible losses is determinable at this
time. No provisions for any losses related to the lawsuits have
been recorded in the accompanying consolidated financial
statements for the year ended December 31, 2014. An adverse
judgment for monetary damages could have a material adverse effect
on the operations and liquidity of the Company. All defendants
have stated in court filings that they believe that the claims are
without merit and are defending against them vigorously.
RCS CAPITAL: To Defend Against Weston Shareholder Class Action
--------------------------------------------------------------
RCS Capital Corporation said in its Form 10-K Report filed with
the Securities and Exchange Commission on March 11, 2015, for the
fiscal year ended December 31, 2014, that the Company intends to
vigorously defend itself against the Weston Shareholder Class
Action Litigation.
On or about December 29, 2014, a securities law class action
lawsuit was filed in federal court in the Southern District of New
York (Weston v. RCS Capital Corporation et al, 14 CV 10136)
against the Company and certain former or current officers and
directors of the Company. The lawsuit asserts the Company and the
individual defendants violated Section 10(b) and 20(a) of the
Securities Exchange Act of 1934 by making materially false and
misleading public statements pertaining to the Company's financial
position and future business and acquisition prospects.
Specifically, plaintiffs allege that defendants made false and/or
misleading statements and/or failed to disclose that: (i) the
financial statements of ARCP were material false and misleading as
a result of accounting irregularities that were disclosed by ARCP
on October 29, 2014; (ii) the Company's announced acquisition of
Cole Capital Partners LLC and Cole Capital Advisors was at serious
risk due to the accounting issues at ARCP; and (iii) the Company's
revenue stream from its relationship with ARCP was in jeopardy as
a result of the accounting issues at ARCP announced on October 1,
2014. There have not been any other material court filings
involving the Company or Realty Capital Securities, LLC. The
Company believes the Weston complaint is without merit and intends
to vigorously defend itself against its allegations.
RCS CAPITAL: To Defend Against Teachers Insurance Class Action
--------------------------------------------------------------
RCS Capital Corporation said in its Form 10-K Report filed with
the Securities and Exchange Commission on March 11, 2015, for the
fiscal year ended December 31, 2014, that the Company intends to
vigorously defend itself against the Teachers Insurance Class
Action Litigation.
The Company was named as a defendant in a consolidated federal
securities law class action (Teachers Insurance and Annuity
Association of America, et al. v. American Realty Capital
Properties, Inc. et al, Civ. A. 15-cv-00421) filed in federal
court in New York on January 21, 2015 brought on behalf of all
persons who purchased or otherwise acquired securities of ARCP
between May 6, 2013 and October 29, 2014, including ARCP common
stock, preferred stock and debt securities. The lawsuit's claims,
premised on Sections 11, 12 and 15 of the Securities Act of 1933
and Sections 14(a), 10(b) and 20(a) of the Securities Exchange Act
of 1934, allege generally that defendants issued or assisted in
the issuance of false and misleading statements to the investing
public, including in registration statements, prospectuses,
proxies and other public statements and press releases, concerning
ARCP's financial results as part of a scheme to artificially
inflate the value of ARCP's securities.
More specifically, the complaint alleges that the Company is a
"control person" of ARCP under the securities laws and thus
plaintiffs seek to hold the Company responsible for the alleged
misstatements of ARCP and its officers and directors. The Company
is also alleged to be a "structuring advisor" to ARCP. Realty
Capital Securities, LLC, a subsidiary of the Company is named as a
defendant based on its role as a co-manager of ARCP's July 2013
convertible notes offering.
There have not been any other material court filings involving the
Company or Realty Capital Securities, LLC.
The Company believes the Teachers complaint is without merit and
intends to vigorously defend itself against the allegations
contained in the complaint.
SEPTA: Arbitrator Must Handle Arbitration Agreement Dispute
-----------------------------------------------------------
Gina Passarella, writing for The Legal Intelligencer, reports that
if a court finds an arbitration agreement valid, any dispute over
its terms must be handled by the arbitrator, the Commonwealth
Court has ruled.
In a published decision in Hammond v. SEPTA, a split three-judge
panel said the question of whether plaintiff Laurence Hammond
properly revoked an agreement to arbitrate his workplace injury
suit with the Southeastern Pennsylvania Transportation Authority
was for the arbitrator, and not the trial court, to decide.
Judge Mary Hannah Leavitt said in the majority opinion that the
trial court is authorized to answer two questions at the outset of
a dispute stemming from an arbitration: whether an agreement to
arbitrate was entered into and whether the dispute comes within
the ambit of the arbitration provision.
"Because both questions were answered affirmatively, the trial
court's analysis should have concluded," Judge Leavitt said.
"Instead, the trial court went on to consider 'whether [Hammond]
properly revoked the arbitration agreement pursuant to' the
agreement's revocation clause. This required the trial court to
engage in arbitration agreement interpretation, which is a job for
the arbitrator."
Mr. Hammond had argued that, because the issue of revocation goes
to the existence of whether there is an arbitration agreement in
the first instance, the trial court has the authority to determine
if an agreement had been revoked.
"Hammond's argument is flawed because it requires a determination
that the arbitration agreement was 'properly revoked,'" Judge
Leavitt said. "Whether the arbitration agreement was properly
revoked requires an interpretation of the arbitration agreement,
and such questions are for arbitrators, not the courts, to
resolve."
In so holding, Judge Leavitt reversed the trial court's order in
favor of Hammond and sustained SEPTA's preliminary objection to
Hammond's filing of his Federal Employers Liability Act complaint
in the Philadelphia Court of Common Pleas.
In her dissent, Senior Judge Rochelle S. Friedman said that
because the arbitration was revoked, there was no valid
arbitration agreement, making the dispute properly placed before
the trial court.
Judge Friedman said she also agreed with the trial court's
subsequent decision that the arbitration agreement's revocation
clause was ambiguous, and would therefore have resolved that
ambiguity in favor of Mr. Hammond, as the nondrafting party.
Mr. Hammond was working as a SEPTA conductor in April 2012 when he
injured his shoulder in the course of his employment. The parties
agreed to resolve Hammond's resultant FELA claim through
arbitration. The agreement contained a revocation clause that
said either party could revoke the agreement if, by the close of
discovery, the parties did not agree on the high-low amounts of
the award, "'and, if [Hammond] claims a permanent disability that
precludes his return to work at SEPTA, [Hammond] does not agree to
resign from the employ of SEPTA and release future medical
payments and future indemnity payments under the Workers'
Compensation Act,'" according to the opinion.
The arbitrator set a Feb. 28, 2014, deadline for the close of
discovery. On March 19, 2014, Mr. Hammond said he was revoking
the arbitration agreement. And, for the first time, Mr. Hammond
claimed a permanent disability that precluded his return to work,
even though he was still working at SEPTA, Judge Leavitt said. A
day later, Mr. Hammond filed the FELA complaint in the
Philadelphia Court of Common Pleas.
SEPTA filed preliminary objections, arguing the court lacked
jurisdiction because Mr. Hammond did not properly revoke the
arbitration agreement. SEPTA said Mr. Hammond did not prove the
existence of a permanent disability "by the close of discovery."
Mr. Hammond argued the by-the-close-of-discovery requirement only
attached to the setting of the high-low amounts. He said there
was no time limit to his ability to revoke based on a permanent
disability. SEPTA responded that Hammond's argument was an
"absurd construction" of the revocation clause, because it would
have allowed Hammond to revoke the arbitration agreement even
after the arbitration hearing if he didn't like the outcome.
In an Aug. 11, 2014, opinion, the trial court said the clause was
ambiguous and the deadline only applied to the high-low agreement.
Voci R. Bennett of Keller & Goggin in Philadelphia represented
Mr. Hammond. Richard E. Stabinski -- rstabinski@wglaw.com -- of
Weber Gallagher Simpson Stapleton Fires & Newby in Philadelphia
represented SEPTA.
Mr. Stabinski said SEPTA was pleased with the ruling. He said the
case now goes back to the arbitrator for an interpretation of what
the parties' dispute means.
Mr. Bennett was not available for comment by press time.
SO-BEE INC: Faces "Rashid" Suit Over Failure to Pay Overtime
------------------------------------------------------------
Didar Rashid a/k/a "Sammy" and all others similarly situated under
29 U.S.C. 216(b) v. So-Bee, Inc., Dipak Mallik, Sebastian
Dominguez, Gulliemro Padron, Constanza Lovera, Case No. 1:15-cv-
21724 (S.D. Fla., May 6, 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 a grocery store in Miami Dade
County, Florida.
The Plaintiff is represented by:
K. David Kelly, Esq.
Rivkah Fay Jaff, Esq.
Jamie H. Zidell, Esq.
J.H. ZIDELL, PA
300 71st Street, Ste. 605
Miami Beach, FL 33141
Telephone: (305) 865-6766
E-mail: david.kelly38@rocketmail.com
Rivkah.Jaff@gmail.com
ZABOGADO@AOL.COM
STERLING JEWELERS: Court Explores EEOC Duty to Probe Bias Claims
----------------------------------------------------------------
Scott Flaherty, writing for Law.com, reports that Kay Jewelers is
one of the brands of Sterling Jewelers, which had been accused of
shortchanging women in pay and promotions.
After the U.S. Supreme Court ruled that judges can review the U.S.
Equal Employment Opportunity Commission's efforts to resolve
employment bias disputes before suing, a federal appeals court
will weigh another aspect of the agency's pre-suit obligations.
The U.S. Court of Appeals for the Second Circuit was set to hear
arguments on May 5 in an EEOC gender bias case against Kay
Jewelers' parent company, Sterling Jewelers Inc. The appeal --
which has attracted attention from the U.S. Chamber of Commerce,
the Equal Employment Advisory Council and other groups -- explores
the extent to which a court can review the EEOC's investigation of
employment bias claims before filing suit.
Seyfarth's Gerald Maatman Jr., who's built a reputation for
challenging the EEOC, is expected to argue for Sterling, pitted
against EEOC staff attorney Barbara Sloan.
The EEOC accused Sterling of a nationwide pattern of
discrimination against female employees, claiming that the company
provided women worse pay and fewer opportunities for promotion
than their male counterparts. A federal district judge in
Buffalo, New York, dismissed the case in March 2014, finding that
the agency failed to conducted a national investigation before
leveling its claims.
The EEOC has argued at the Second Circuit that there was no
precedent for the district court's decision. The courts, the
agency maintains, are generally prohibited from inquiring into the
sufficiency of EEOC investigations into alleged violations of
Title VII of the Civil Rights Act of 1964.
Sterling counters that the district court acted within its
authority -- and in alignment with other courts -- when it
reviewed evidence about the agency's investigation and determined
that the EEOC failed to meet one of its pre-suit requirements.
Hanging over the Sterling case is the Supreme Court's April 29
ruling in Mach Mining v. EEOC, another lawsuit involving the
agency's obligations before suing an employer.
Mach Mining explored whether the EEOC's efforts in pre-suit
conciliation -- informal attempts the agency is required to make
to resolve a dispute before suing -- should be subject to judicial
review. The justices ruled that courts could, in fact, review the
EEOC's conciliation efforts, but on a limited basis.
The EEOC and lawyers for Sterling both alerted the Second Circuit
to the high court's ruling, arguing that Mach Mining helps their
cause -- or, at the very least, doesn't hurt it.
The EEOC picked up on the Supreme Court's holding that in cases
where a district court judge finds that the agency hasn't made
enough of an attempt to conciliate, the appropriate remedy is to
put the court proceedings on hold and order the EEOC to further
engage with the employer. Under that standard, the EEOC argued in
an April 30 letter, the district court in Sterling went too far
when it granted the jeweler summary judgment based on the EEOC's
investigation efforts.
Sterling's lawyers, led by Seyfarth's Maatman, argued in a May 1
letter that the decision doesn't back the EEOC's position, and
actually highlights differences between the agency's conciliation
and investigation efforts.
"Negotiations can always be resumed, whereas investigations
cannot," wrote Mr. Maatman.
In addition to Mr. Maatman, Sterling's appellate team includes
Jeffrey Klein -- jeffrey.klein@weil.com -- of Weil, Gotshal &
Manges, as well as Seyfarth's David Ross and William Dugan.
SUDAN: Hires White & Case to Fight Judgments in Kenya Bombing
-------------------------------------------------------------
Zoe Tillman, writing for The National Law Journal, reports that
Sudan, which denies any involvement in the 1998 bombing of the
U.S. embassy in Nairobi, Kenya, was largely absent from litigation
in the United States.
For almost a decade, Sudanese officials largely ignored lawsuits
in the United States that accused the country of aiding terrorists
who bombed two U.S. embassies in 1998. Billions of dollars in
damages were awarded to victims and their families.
Sudan last year jumped back in, hiring a lawyer in Washington to
pursue appeals. In April, Sudan hired a team from White & Case --
the same team that helped Libya settle terrorism claims several
years ago -- to fight default judgments entered against Sudan when
the country was absent from court.
Sudan's decision to get involved now will draw out the litigation,
but victims' lawyers seemed positive about the developments.
"I always welcome competent counsel coming into a case to advise
and represent a sovereign," said Crowell & Moring partner Stuart
Newberger, who represents a group of plaintiffs in one of the
cases. "It's better than a default. I think it's healthier for
the system."
Sudan, in papers filed in the U.S. District Court for the District
of Columbia, said its renewed involvement was part of efforts "to
follow more pragmatic foreign policies." That could be good news
for the plaintiffs. Even if Sudan loses, its commitment to
participating in the U.S. legal process -- at least for now --
means victims might stand a better chance of getting paid.
Terrorism judgments are notoriously difficult to satisfy if the
defendant won't pay. Iran, which is also a defendant in the
embassy bombing cases and rarely participates in terrorism-related
litigation, owes tens of billions of dollars to terrorism victims.
Plaintiffs lawyers must hunt for assets they can seize in the
United States and abroad.
Some money may become available soon for victims of the bombings.
After BNP Paribas S.A. pleaded guilty last year to processing
financial transactions for countries subject to sanctions,
including Sudan, the bank, represented by Sullivan & Cromwell's
Karen Seymour, agreed to pay an $8.9 billion penalty. The U.S.
Department of Justice has said in court that victims of crimes can
petition for compensation from the $3.8 billion that will go to
the federal government. A DOJ spokesman declined to comment. The
petition process is confidential.
YEARS OF UNREST
Sudan denies any involvement in the 1998 bombings at the U.S.
embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania. The
attacks killed hundreds of people and injured thousands. Sudan's
ambassador to the United States, Maowia Khalid, said in court
papers that the country stayed out of the litigation for so long
due to "civil unrest and political turmoil," as well as natural
disasters.
Sudan has been on the U.S. list of state sponsors of terrorism
since 1993 and is subject to economic sanctions. The country can
hire counsel to defend against lawsuits, however, and its lawyers
in the United States can accept payment as long as they get a
license from the U.S. Department of Treasury's Office of Foreign
Assets Control. A Treasury spokeswoman said the agency does not
comment on individual licenses.
White & Case partner Christopher Curran, a lead attorney for
Sudan, declined to comment. Asim Ghafoor, the Washington attorney
hired by Sudan last year to pursue appeals, did not return
requests for comment.
With Sudan contesting the embassy bombing claims, it's unclear
whether its leaders are open to taking the same path as Libya,
which reached a billion-dollar settlement in 2008 to resolve
terrorism claims. The Libya deal was part of broader efforts to
restore diplomatic ties. The U.S. Department of State declined to
comment on Sudan's participation in terrorism cases.When the first
embassy bombing case was filed in D.C. in 2001, Sudan hired
lawyers and fought the claims.
By 2005 a rift emerged between Sudan and its lawyers at Hunton &
Williams. In January 2005, the firm asked the court to allow it
to withdraw. Sudanese officials were not communicating and owed
hundreds of thousands of dollars in legal bills, the firm said.
U.S. District Judge John Bates, who has presided over the embassy
bombing cases, didn't let Hunton formally withdraw until 2007.
Former Hunton partner Douglas "Knox" Bemis Jr., a lead attorney
for Sudan who in 2007 moved to the now-defunct Dewey & LeBoeuf,
wasn't allowed to withdraw until early 2009. Bemis declined an
interview request.
Between 2008 and 2012, another six cases were filed against Sudan
in D.C. related to the embassy bombings. Sudan did not
participate in any of them. In 2014, Bates awarded more than $7.7
million in the seven cases to U.S., Kenyan and Tanzanian citizens
injured in the attacks or who lost family members. Mr. Ghafoor
entered appearances last year in each of those cases and appealed
the judgments to the U.S. Court of Appeals for the D.C Circuit,
which consolidated the appeals. Sudan's brief was due May 11.
Sudan hired White & Case in early April, according to court
papers. By the end of the month, the firm had filed motions to
vacate default judgments in all of the seven cases on appeal.
DIFFICULT COMMUNICATIONS
Hunton partner Jay Range, who was part of the efforts to withdraw
as counsel for Sudan, said representing foreign governments
presents unique challenges.
"One of the most difficult things you have with any representation
of a sovereign is having a prompt and efficient line of
communication," Mr. Range said. "We've represented many
sovereigns in developing countries and the governments have a very
thin line of professional civil servants to handle matters of this
nature."
Mr. Range declined to comment about whether Sudan has paid the
firm's outstanding legal bills. Generally, he said, foreign
governments are no more or less likely to pay than other clients.
"Clients are clients. They have all sorts of individual problems
that may cause a nonpayment situation," Mr. Range said.
"Obviously, lawyers always like to get funds up front or they like
to have some guarantee or bank credit or something like that. But
that's not always possible."
TAM ENTERPRISES: "Duncan" Suit Seeks to Recover Unpaid OT Wages
---------------------------------------------------------------
Mark Duncan, individually and on behalf of all others similarly
situated v. Tam Enterprises and Anthony Lasponara, Case No. 7:15-
cv-03500 (S.D.N.Y., May 5, 2015), seeks to recover unpaid overtime
wages and damages pursuant to the Fair Labor Standard Act.
The Defendants are in the water and wastewater excavation,
industrial tank pumping, video inspection, infrastructure
rehabilitation and emergency utility services business.
The Plaintiff is represented by:
Brent Edward Pelton, Esq.
Taylor Bell Graham, Esq.
PELTON & ASSOCIATES, P.C.
111 Broadway, Suite 1503
New York, NY 10000
Telephone: (212) 385-9700
Facsimile: (212) 385-0800
E-mail: pelton@peltonlaw.com
graham@peltonlaw.com
TOP RANK: Faces "Barrios" Suit in E.D.N.Y. Over Pacquiao's Injury
-----------------------------------------------------------------
Enrique Barrios, individually and on behalf of all others
similarly situated v. Top Rank, Inc., et al., Case No. 1:15-cv-
02606 (E.D.N.Y., May 6, 2015), is an action for damages as a
proximate result of the Defendants' failure to disclose the Nevada
Athletic Commission the injuries suffered by Pacquiao prior to the
fight between Manny Pacquiao and Floyd Mayweather held May 2,
2015.
Top Rank, Inc. is a Nevada corporation engaged in the business of
producing, promoting, and selling tickets to fighting events.
The Plaintiff is represented by:
David S. Ratner, Esq.
Adam Deutsch, Esq.
MORELLI ALTERS RATNER P.C.
777 Third Avenue, 31st floor
New York, NY 10017
Telephone: (212) 751-9800
Facsimile: (212) 751-0046
E-mail: dratner@morellialters.com
adeutsch@morellialters.com
TOP RANK: Faces "Braunstein" Suit in N.Y. Over Pacquiao's Injury
----------------------------------------------------------------
David Braunstein, on behalf of himself, and all others similarly
situated v. Top Rank, Inc., et al., 1:15-cv-03572-SAS (S.D.N.Y.,
May 6, 2015), is an action for damages as a proximate result of
the Defendants' failure to disclose the Nevada Athletic Commission
the injuries suffered by Pacquiao prior to the fight between Manny
Pacquiao and Floyd Mayweather held May 2, 2015.
Top Rank, Inc. is a Nevada corporation engaged in the business of
producing, promoting, and selling tickets to fighting events.
The Plaintiff is represented by:
Gregory Mark Nespole, Esq.
Matthew Moylan Guiney, Esq.
Robert Yael Altchiler, Esq.
WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP
270 Madison Avenue
New York, NY 10016
Telephone: (212) 545-4657
Facsimile: (212) 545-4693
E-mail: nespole@whafh.com
guiney@whafh.com
altchlaw@aol.com
TOP RANK: Faces "Craig" Suit in E.D. Texas Over Pacquiao's Injury
-----------------------------------------------------------------
Devarious Craig, in his individual capacity, and on behalf of all
others similarly situated v. Top Rank, Inc., et al., Case No.
2:15-cv-00629-JRG (E.D. Tex., May 5, 2015), is an action for
damages as a proximate result of the Defendants' failure to
disclose the Nevada Athletic Commission the injuries suffered by
Pacquiao prior to the fight between Manny Pacquiao and Floyd
Mayweather held May 2, 2015.
Top Rank, Inc. is a Nevada corporation engaged in the business of
producing, promoting, and selling tickets to fighting events.
The Plaintiff is represented by:
Eric M. Albritton, Esq.
Anthony K. Bruster, Esq.
Shawn A. Latchford, Esq.
ALBRITTON LAW FIRM
P.O. Box 2649
Longview, TX 75606
Telephone: (903) 757-8449
Facsimile: (903) 758-7397
E-mail: ema@emafirm.com
akb@emafirm.com
sal@emafirm.com
TOP RANK: Faces "Jackson" Suit in Fla. Over Pacquiao's Injury
-------------------------------------------------------------
Terrence Jackson, on behalf of himself and all others similarly
situated v. Top Rank, Inc., et al., Case No. 1:15-cv-00089-RS-GRJ
(N.D. Fla., May 6, 2015), is an action for damages as a proximate
result of the Defendants' failure to disclose the Nevada Athletic
Commission the injuries suffered by Pacquiao prior to the fight
between Manny Pacquiao and Floyd Mayweather held May 2, 2015.
Top Rank, Inc. is a Nevada corporation engaged in the business of
producing, promoting, and selling tickets to fighting events.
The Plaintiff is represented by:
Zachary West, Esq.
THE BERMAN LAW GROUP
626 NE 1st St
Gainesville, FL 32601
Telephone: (352) 289-1682
E-mail: zdwest@gmail.com
TOP RANK: Faces "Johnson" Suit in D. Md. Over Pacquiao's Injury
---------------------------------------------------------------
Bonnie Johnson and Bonnie Davis, on behalf of themselves and all
others similarly situated v. Top Rank, Inc., Case No. 8:15-cv-
01307-GJH (D. Md., May 6, 2015), is an action for damages as a
proximate result of the Defendants' failure to disclose the Nevada
Athletic Commission the injuries suffered by Pacquiao prior to the
fight between Manny Pacquiao and Floyd Mayweather held May 2,
2015.
Top Rank, Inc. is a Nevada corporation engaged in the business of
producing, promoting, and selling tickets to fighting events.
The Plaintiff is represented by:
April Teniade Ademiluyi, Esq.
THE LAW OFFICE OF APRIL ADEMILUYI
10411 Motor City Dr, Suite 750
Bethesda, MD 20817
Telephone: (443) 393-3984
Facsimile: (443) 393-0416
E-mail: lawofficeata@gmail.com
TOP RANK: Faces "McDonald" Suit in Cal. Over Pacquiao's Injury
--------------------------------------------------------------
Heather McDonald, Payman Shahin, individually and on behalf of all
others similarly situated v. Top Rank, Inc., et al., Case No.
3:15-cv-01006 (S.D. Cal., May 5, 2015), is an action for damages
as a proximate result of the Defendants' failure to disclose the
Nevada Athletic Commission the injuries suffered by Pacquiao prior
to the fight between Manny Pacquiao and Floyd Mayweather held May
2, 2015.
Top Rank, Inc. is a Nevada corporation engaged in the business of
producing, promoting, and selling tickets to fighting events.
The Plaintiff is represented by:
Abbas Kazerounian, Esq.
KAZEROUNI LAW GROUP, APC
245 Fischer Avenue, Unit D1
Costa Mesa, CA 92626
Telephone: (800) 400-6808
Facsimile: (800) 520-5523
E-mail: ak@kazlg.com
- and -
Sina Rezvanpour, Esq.
Seyed Kazerouni, Esq.
RKR LEGAL, APC
245 Fischer Ave, Suite D1
Costa Mesa, California 92626
Telephone: (866) 502-0787
Facsimile: (866) 502-5065
E-mail: sr@rkrlegal.com
mk@rkrlegal.com
- and -
Joshua B. Swigart, Esq.
HYDE & SWIGART
2221 Camino Del Rio South, Suite 101
San Diego, CA 92108
Telephone: (619) 233-7770
Facsimile: (619) 297-1022
E-mail: josh@westcoastlitigation.com
TRUECAR INC: Named as Defendant in Class Action Lawsuit
-------------------------------------------------------
TrueCar, Inc. said in its Form 10-K Report filed with the
Securities and Exchange Commission on March 12, 2015, for the
fiscal year ended December 31, 2014, that the Company was named as
a defendant in a lawsuit filed on March 9, 2015, in the United
States District Court in the Southern District of New York. The
complaint, purportedly filed on behalf of numerous automotive
dealers who are not on the TrueCar platform, alleges that the
Company has violated the Lanham Act as well as various state laws
prohibiting unfair competition and deceptive acts or practices
related to the Company's advertising and promotional activities.
The complaint seeks injunctive relief in addition to over $250
million in damages as a result of the alleged diversion of
customers from the plaintiffs' dealerships to TrueCar Certified
Dealers. While the Company has not yet been formally served with
the complaint and continues to evaluate the claims, it believes
that the complaint is without merit and it intends to vigorously
defend itself in this matter. Based on the preliminary nature of
the proceedings in this case, the outcome of this legal
proceeding, including the anticipated legal defense costs, remains
uncertain; accordingly, the Company cannot predict the ultimate
outcome, or reasonably estimate the probability of or the range of
loss, if any, for this action. As a result, no amounts have been
recorded in the Company's consolidated financial statements
related to this matter. If this matter is not resolved in the
Company's favor, losses arising from the results of litigation or
settlements, as well as ongoing defense costs, could have a
material adverse effect on the Company's business, financial
condition, results of operations and cash flows.
UMH PROPERTIES: Litigation Related to Flooding Ongoing
------------------------------------------------------
UMH Properties, Inc. said in its Form 10-K Report filed with the
Securities and Exchange Commission on March 11, 2015, for the
fiscal year ended December 31, 2014, that litigation related to
flooding is ongoing.
In 2010, a rainstorm bringing 13 inches of rain in a two-hour
period caused flooding at Memphis Mobile City. All homes owned by
the Company were fully restored as were the homes of all residents
who elected to make repairs. On May 9, 2011, the Company was
notified that a lawsuit had been filed in the United States
District Court for the Western District of Tennessee on behalf of
a purported class of all individuals of Mexican national origin
who are current or former residents of Memphis Mobile City. The
complaint alleges various claims based on federal and state
discrimination and consumer protection laws, seeking monetary
damages and injunctive relief.
The magistrate judge ruled that plaintiffs who had signed a
security agreement with an arbitration clause would be obligated
to arbitrate while the other plaintiffs would not. The Company
filed a Motion to Dismiss plaintiffs' amended Complaint which
plaintiffs opposed. The District Judge issued a decision granting
the Company's motion in part and denying it in part. This
litigation is ongoing.
The Company continues to believe the action to be without merit.
The Company's insurance company is supporting our defense of this
action. The Company is working on redeveloping this property as a
manufactured home community, using fill from adjacent land that we
have purchased in order to comply with current codes. The
adjacent parcel is also slated for manufactured home development
upon receipt of appropriate permits. The Company has received
approval from the municipality for the first phase of the
development and is currently obtaining bids for the construction
work.
UNITED HEALTHCARE: Faces "Foucher" Suit Over Failure to Pay OT
--------------------------------------------------------------
Sharon Foucher on behalf of herself and others similarly situated
v. United Healthcare Services, Inc., Case No. 3:15-cv-00525 (M.D.
Tenn., May 6, 2015), is brought against the Defendant for failure
to pay overtime wages for work in excess of 40 hours per week.
United Healthcare Services, Inc. owns and operates a health care
company with a place of business located in Williamson County,
Tennessee.
The Plaintiff is represented by:
Emily S. Emmons, Esq.
Michael L. Russell, Esq.
GILBERT RUSSELL MCWHERTER PLC
341 Cool Springs Boulevard, Suite 230
Franklin, TN 37067
Telephone: (615) 354-1144
E-mail: eemmons@gilbertfirm.com
mrussell@gilbertfirm.com
VIASYSTEMS GROUP: Parties to TTM Merger Entered Into MOU
--------------------------------------------------------
Viasystems Group, Inc. said in its Form 10-K Report filed with the
Securities and Exchange Commission on March 12, 2015, for the
fiscal year ended December 31, 2014, that the parties to the
litigation relating to the TTM merger have entered into a
Memorandum of Understanding, documenting the agreement-in-
principle for the settlement of the Missouri Lawsuit.
On September 21, 2014, Viasystems Group, Inc. announced that it
had entered into a merger agreement with TTM Technologies, Inc.
("TTM") and a wholly owned subsidiary of TTM.
Viasystems said, "Since the public announcement on September 22,
2014, of the proposed Merger with TTM, we, the Company's board of
directors, TTM and Merger Sub, have been named as defendants in
two putative class action complaints challenging the Merger. The
first lawsuit, filed on September 30, 2014, in the Circuit Court
of St. Louis County, Missouri (the "Missouri Lawsuit"), and the
second lawsuit, filed on October 13, 2014, in the Court of
Chancery of the State of Delaware (the "Delaware Lawsuit" and,
together with the Missouri Lawsuit, the "Lawsuits"), generally
allege, among other things, that the Merger fails to properly
value our company, and that the individual defendants breached
their fiduciary duties in approving the merger agreement and that
those breaches were aided and abetted by TTM, Merger Sub and the
Company."
"The Delaware Lawsuit specifically alleges, among other
allegations, that (1) the Company's board of directors breached
its fiduciary duties by: (a) agreeing to the Merger for grossly
inadequate consideration, (b) agreeing to lock up the Merger with
deal protection devices that prevent other bidders from making a
successful competing offer for Viasystems, and (c) participating
in a transaction where the loyalties of the Company's board of
directors and management are divided; (2) the Voting Agreements
prevent the Company's stockholders from providing a meaningful
vote on the proposal to adopt the Merger; and (3) that those
breaches of fiduciary duties were aided and abetted by TTM, Merger
Sub, and the Company.
"Further, the Missouri Lawsuit specifically alleges, among other
allegations, that (1) the Merger is the result of an unfair and
flawed process because TTM's financial advisor conspired with the
Company's two largest stockholders and their affiliates to sell
the Company to TTM without the knowledge of the Company's board of
directors; (2) the Merger is unfair because it undervalues
Viasystems; (3) the Company's board of directors and the Company's
management have a conflict of interest due to the cash pool bonus
and change in control payments to be made to certain executive
officers and key employees if the Merger is consummated; (4) the
Merger is unfair because the Merger Agreement contains preclusive
deal protection devices that prevent other bidders from making a
successful competing offer for Viasystems and prevent the
Company's stockholders from providing a meaningful vote on the
proposal to adopt the Merger Agreement; and (5) the definitive
Proxy Statement/Prospectus mailed on or about November 10, 2014 to
the Company's stockholders of record as of November 6, 2014 (the
"Proxy Statement") failed to provide the Company's stockholders
with material information regarding the Merger. The Lawsuits seek,
among other things, injunctive relief to enjoin the defendants
from completing the Merger on the agreed-upon terms, rescinding,
to the extent already implemented, the Merger Agreement or any of
the terms therein, costs and disbursements and attorneys' and
experts' fees and costs, as well as other equitable relief as the
court deems proper. Viasystems believes the Lawsuits are without
merit.
"On December 8, 2014, the parties to the Missouri Lawsuit agreed
in principle to resolve all claims against the Company, the
members of the Company's board of directors, TTM, and Merger Sub.
The agreement contemplated a release and settlement by the
Company's stockholders of all claims against the Company, the
members of the Company's board of directors, TTM, and Merger Sub,
and in exchange Viasystems would promptly make certain agreed-upon
supplemental disclosures regarding the Merger that the plaintiff
in the Missouri Lawsuit alleged were material to the Company's
stockholders considering whether to vote to adopt the Merger
Agreement. On December 9, 2014, in accordance with the parties'
agreement, Viasystems filed with the SEC on Form 8-K the agreed-
upon supplemental disclosures regarding the Merger (the
"Supplemental Disclosures").
"On January 6, 2015, the parties entered into a Memorandum of
Understanding, documenting the agreement-in-principle for the
settlement of the Missouri Lawsuit. The settlement will not affect
the merger consideration to be received by the Company's
stockholders pursuant to the Merger Agreement. There can be no
assurance that the parties will ultimately enter into a definitive
settlement agreement, or that the court will approve the
settlement even if the parties were to enter into such definitive
settlement agreement. In the event that the parties enter into a
definitive settlement agreement, a hearing will be scheduled,
following notice to the Company's stockholders, at which the court
will consider the fairness, reasonableness, and adequacy of the
settlement. If the settlement is finally approved by the court, it
will resolve and release all claims in all actions (including the
Delaware Lawsuit) that were or could have been brought challenging
or otherwise relating to any aspect of the Merger, the Merger
Agreement, and any disclosure made in connection therewith. The
defendants to the Lawsuits deny all fault or liability, and deny
that they have committed any of the unlawful or wrongful acts
alleged in the Lawsuits or otherwise in relation to the Merger,
the Merger Agreement, or any of the events/actions related
thereto, and specifically deny that any further disclosure was
required to supplement the Proxy Statement under any applicable
rule, statute, regulation or law. The Company agreed to provide
the Supplemental Disclosures solely to minimize the cost of
defending the Lawsuits and to permit the stockholder vote on the
Merger Agreement to proceed without delay."
VOCERA COMMUNICATIONS: Court Won't Dismiss Exchange Act Claims
--------------------------------------------------------------
Vocera Communications, Inc. said in its Form 10-K Report filed
with the Securities and Exchange Commission on March 12, 2015, for
the fiscal year ended December 31, 2014, that the Court has denied
Defendants' motion to dismiss the Exchange Act claims in a class
action, but granted with leave to amend Defendants' motion to
dismiss the Securities Act claims.
The Company said, "On August 1 and 21, 2013, two putative
securities class action suits were filed in the United States
District Court for the Northern District of California against us
and certain of our officers, our board of directors, a former
director and the underwriters for the initial public offering. On
November 20, 2013, the court consolidated the actions as In re
Vocera Communications, Inc. Securities Litigation and appointed
Lead Plaintiffs. Lead Plaintiffs filed their consolidated
complaint on September 19, 2014."
"The consolidated complaint names certain current and former
officers and directors and the underwriters for our initial public
offering and secondary offering and alleges claims under Sections
11, 12(a)(2) and 15 of the Securities Act of 1933, as amended
(Securities Act) and Section 10(b) and 20(a) of the Exchange Act
based on allegedly false and materially misleading statements and
omissions in the registration statement for our initial public
offering and secondary offering and in communications regarding
its business and financial results. The suit is purportedly
brought on behalf of purchasers of our securities between March
28, 2012 and May 2, 2013, and seeks compensatory damages,
rescission, fees and costs, as well as other relief.
"On November 3, 2014 Defendants moved to dismiss the consolidated
complaint. On January 15, 2015, the Court denied Defendants'
motion to dismiss the Exchange Act claims, but granted with leave
to amend Defendants' motion to dismiss the Securities Act claims.
The time for Lead Plaintiffs to amend the consolidated complaint
has not yet passed.
"Due to the inherent uncertainties of litigation, we cannot
accurately predict the ultimate outcome of this matter. We are
unable at this time to determine whether the outcome of the
litigation would have a material impact on our results of
operations, financial condition or cash flow. We have not
established any reserve for any potential liability relating to
this lawsuit."
XPRESSPA AT TERM.4JFK: Suit Seeks to Recover Unpaid OT Wages
------------------------------------------------------------
Stephanie Montenegro, Kathleen Castillo, and Vanessa Barrett, on
behalf of themselves, FLSA Collective Plaintiffs and Class Members
v. Xpresspa At Term.4JFK, LLC, et al., Case No. 1:15-cv-03539
(S.D.N.Y., May 6, 2015) seeks to recover unpaid overtime
compensation, liquidated damages and statutory penalties, and
attorneys' fees and costs pursuant to the Fair Labor Standard Act.
Xpresspa At Term.4JFK, LLC operates a chain of spas located in
airports throughout the United States and also in foreign
countries.
The Plaintiff is represented by:
Brian Scott Schaffer, Esq.
Jeffrey Hill Dorfman, Esq.
FITAPELLI & SCHAFFER, LLP
475 Park Avenue South, 12th Floor
New York, NY 10016
Telephone: (212) 300-0375
Facsimile: (212) 481-1333
E-mail: bschaffer@fslawfirm.com
jdorfman@fslawfirm.com
- and -
C.K. Lee, Esq.
LEE LITIGATION GROUP, PLLC
30 East 39th Street, 2nd Floor
New York, NY 10016
Telephone: (212) 465-1188
Facsimile: (212) 465-1181
E-mail: cklee@leelitigation.com
* Mortgage Foreclosure Proceeding Pleading Rules Favor Borrowers
----------------------------------------------------------------
Christopher A. Gorman, writing for Law.com, reports that
practitioners in the area of mortgage foreclosures know that for
the past several years at the center of virtually every contested
mortgage foreclosure proceeding is a defense founded upon the
plaintiff's alleged lack of standing. Where a defendant-borrower
puts the plaintiff-lender's standing into issue, it is the lender
that has the burden of proving its standing in order to be
entitled to relief. See Bank of New York v. Silverberg, 86 A.D.3d
274, 926 N.Y.S.2d 532 (2d Dept. 2011) ("Where . . . the issue of
standing is raised by a defendant, a plaintiff must prove its
standing in order to be entitled to relief.").
Until recently, lenders could generally rest assured that, if a
borrower in a mortgage foreclosure action did not specifically
plead the affirmative defense of lack of standing in its answer,
standing was not in issue in the proceeding and the lender did not
have the burden of establishing its standing. Indeed, generally
speaking, courts have held that, where the borrower did not
specifically plead standing as an affirmative defense, the defense
was deemed waived pursuant to CPLR 3018(b). See CPLR 3018(b)
(titled "responsive pleadings" and providing that "[a] party shall
plead all matters which if not pleaded would be likely to take the
adverse party by surprise or would raise issues of fact not
appearing on the face of a prior pleading," and providing a non-
exhaustive list of defenses which must be pleaded in an answer).
But the Appellate Division, Second Department, has recently issued
a decision that would appear to conflict with precedent as to what
exactly a borrower must do in order to effectively raise the issue
of standing in a mortgage foreclosure proceeding. That decision,
U.S. Bank National Association v. Faruque, 120 A.D.3d 575, 991
N.Y.S.2d 630 (2d Dept. 2014), may very well result in standing
being made an issue in even more mortgage foreclosure proceedings
-- including in mortgage foreclosure actions where the defendant-
borrower did not plead standing as an affirmative defense in an
answer or raise it in a pre-answer motion to dismiss.
As detailed below, until further guidance is provided by the
Second Department or the New York Court of Appeals, the parties in
mortgage foreclosure proceedings must assume that previously well-
settled pleading rules in such cases have been changed to the
detriment of lenders and in favor of borrowers.
'Mastropaolo'
The decision that is most often cited in support of the
proposition that a standing defense not pleaded in the answer to
the complaint or in a pre-answer motion to dismiss is waived is
Wells Fargo Bank Minnesota, National Association v. Mastropaolo,
42 A.D.3d 239, 837 N.Y.S.2d 247 (2d Dept. 2007). In Mastropaolo,
following the borrower's default, the plaintiff-lender commenced a
mortgage foreclosure action. The defendant-borrower served an
answer to the complaint in which he "rais[ed] five affirmative
defenses, none of which related to lack of standing or lack of
capacity to sue."
The lender moved for summary judgment and an order appointing a
referee. In opposition, the borrower alleged that the motion
should be denied because the lender lacked standing to commence
the action. The Supreme Court denied the lender's motion for
summary judgment, citing the fact that the plaintiff "was not the
legal titleholder to the mortgage on the day the action was
commenced."
In Mastropaolo, the Second Department reversed the Supreme Court,
framing the issue presented on appeal as "whether a party's
alleged lack of standing to commence the action is a defense that
is waived if not raised in an answer or in a pre-answer motion to
dismiss." In Mastropaolo, the Second Department held that "lack
of standing is such a defense, and that it was waived in this case
where the defendant raised the standing issue for the first time
in an attorney's affirmation submitted in opposition to the
plaintiff's motion for summary judgment." In other words, the
Mastropaolo court concluded that "[s]ince the defendant did not
raise the standing issue in his answer or in a pre-answer motion
to dismiss the complaint," the lender correctly argued that the
borrower "did, in fact, waive any defense based on a lack of
standing, pursuant to CPLR 3211(e)."
CPLR 3211(e), which was relied upon by the Mastropaolo court,
provides that, "[a]t any time before service of the responsive
pleading is required, a party may move for dismissal on one or
more of the grounds set forth in CPLR 3211(a), and that "[a]ny
objection or defenses based upon a ground set forth in paragraphs
one, three, four, five and six of subdivision (a) is waived unless
raised either by such motion or in the responsive pleading." See
CPLR 3211(e). The Mastropaolo court interpreted CPLR 3211(e) to
mean that "any objection or defense based on a ground set forth in
subdivision (1), (3), (4), (5) or (6) of CPLR 3211(a) must be
raised in an answer or in a motion made before the answer is due,
or it is waived." The court in Mastropaolo likened a standing
defense to a defense alleging lack of legal capacity to sue, as
provided for in CPLR 3211(a)(3), and therefore concluded that a
defense that the plaintiff lacks standing "if not asserted in the
defendant's answer or in a pre-answer motion to dismiss the
complaint, is waived pursuant to CPLR 3211(e)." The Mastropaolo
court concluded that "a lack of standing is not such a fundamental
defect that it cannot be waived," such that "where a defendant
does not challenge a plaintiff's standing, the plaintiff may be
relieved of its obligation to prove that it is the proper party to
seek the requested relief."
The court in Mastropaolo then went on to conclude that the lender
made out its prima facie case for summary judgment and that
"defendant's responsive submission, consisting solely of his
assertion that [the lender] lacked standing, failed to raise a
triable issue of fact." Thus, the Mastropaolo court concluded
that the lender "was entitled to summary judgment on the
complaint."
'Faruque'
In Faruque, the Second Department appears to have departed from
its decision in Mastropaolo without discussing or even citing to
it.
In Faruque, following a default, the plaintiff-lender commenced a
mortgage foreclosure action. The borrower answered the lender's
foreclosure complaint and, among other things, "specifically
denied that the note was delivered to the plaintiff or that an
assignment" from the originating lender to the plaintiff "had been
recorded," although apparently the borrower did not specifically
plead lack of standing as an affirmative defense in the answer.
The lender moved for summary judgment and an order appointing a
referee, and the borrower cross-moved to dismiss the complaint
pursuant to CPLR 3211(a)(3) on the grounds that the plaintiff
lacked standing. The Supreme Court denied the plaintiff's motion
for summary judgment and granted the defendant's cross-motion to
dismiss the complaint "on the ground that the plaintiff lacked
standing to commence the action."
The Second Department affirmed in part and reversed in part the
Supreme Court's decision in an order that appears to directly
contradict its prior holding in Mastropaolo.
In Faruque, the court held that, in order for the plaintiff in a
foreclosure action to have the burden of proving its standing, all
that a defendant's answer must do is "put into issue" the
plaintiff's standing, as opposed to having to specifically plead
standing as an affirmative defense. The court held that the
borrower had sufficiently put "the plaintiff's standing into issue
by the specific denials in her answer regarding the note and
mortgage." As a result, the court held, citing CPLR 3018(b), that
the borrower "was not required to plead lack of standing as an
affirmative defense." Based upon the specific denials in the
answer, therefore, the borrower had sufficiently raised the issue
of standing such that, "in order for the plaintiff to be entitled
to relief, it had to prove its standing."
The Faruque court went on to conclude that the lender had failed
to meet its burden under the circumstances of that case because,
among other reasons, the lender "did not establish that the note
was physically delivered to it prior to the commencement of the
action." The court also concluded, however, that the Supreme
Court erred in granting the borrower's cross-motion to dismiss the
complaint pursuant to CPLR 3211(a)(3) because "a question of fact
remains with respect to the issue of whether the plaintiff was the
lawful holder of the note when it commenced the action."
*********
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 * * *