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/raid1/www/Hosts/bankrupt/CAR_Public/151026.mbx C L A S S A C T I O N R E P O R T E R Monday, October 26, 2015, Vol. 17, No. 213 Headlines ALL NATION: "Pampillo" Suit Alleges FLSA Violation AMAZON.COM INC: Background Check Summary Judgment Motion Denied AMAZON: Files Suit Against Over 1,000 Unidentified Reviewers BB&T CORP: Faces Suit in N.C. Over Alleged ERISA Violation BIG WATER: Class Cert. Bid in "Reed" Case Denied BOFI HOLDING: Kessler Topaz Files Shareholder Class Action BOFI HOLDING: Stull, Stull Files Securities Class Action in NY CANAL MANAGEMENT: "Joseph" Suit Alleges Labor Law Violation COAST TO COAST: Faces "Rivera" Suit Alleging Labor Laws Breach DEUTSCHE POST: Court Grants Final Approval of Marshall Suit Deal DIRECTV GROUP: Defending Against NFL Sunday Ticket Litigation DIRECTV GROUP: Trial Expected This Fall in MLB Litigation DISNEY: Lack of Captioning Prompts Civil Rights Class Action EMERGENT CAPITAL: Shareholder Class Action Dismissed ENHANCED RECOVERY: Faces "Miller" Suit Alleging FLSA Violations FACEBOOK: Austrian Student Loses Appeal in Privacy Class Action FANDUEL INC: Faces "Johnson" Suit Over Sports Website Operation FERGUSON, MO: Mulls Settlement of Civil Rights Suit FLEETCOR TECHNOLOGIES: Faces Suit in Ga. Over FLSA "Violations" GLAXOSMITKLINE: 3rd Cir. Vacates Dismissal of "King Drug" Case GLOBE ENERGY: Faces "Serrano" Suit Over FLSA Violations GOLD FIELDS: Silicosis Class Action Bludgeons Gold Mining Sector GOLDMAN SACHS: Wants 2nd Cir. to Hear Appeal in Securities Suit GOODYEAR TIRE: French Workers' Class Action Can't Proceed in U.S. GREATWIDE DEDICATED: Faces Suit for Unfair Business Practices HELP AT HOME: Faces Suit Over Alleged Labor Law Violations HIGHER ONE: Continues to Defend Securities Class Action JK & T WINGS: Faces Suit in Mich. for Alleged FLSA Violation JP MORGAN: To Pay Lion's Share of CDS Class Action Settlement KING CABLE: "Nasufi" Suit Alleges FLSA Violation MARINELLO SCHOOLS: Beauty School Students Lose Wage Class Action MAVERICK FUND: Court Partially Grants Motion to Dismiss TAC NAVY FEDERAL: "Munday" Suit Alleges TCPA Violation NBC: Faces Antitrust Class Action Over NFL TV Rights NEVADA PROPERTY 1: Awaits Approval of Class Action Settlement NEVADA PROPERTY 1: Deal in Wire Tap Case Under Consideration NISKA GAS: Plaintiffs to Seek Consolidation of Class Action O'FALLON, MO: May Face Class Action Over Towing Fees PORTFOLIO RECOVERY: Court Denies Motion in FDCPA Class Action PRO'S SPORTSBAR: Faces Suit in Ill. Over Alleged Labor Law Breach REVANCE THERAPEUTICS: Faces Warren Police Class Action RJ REYNOLDS: Faces Class Action Over Use of Nicotine in Vaping ROCKET FUEL: Defendants Moved to Dismiss Securities Litigation SAMARI LAKE: Faces "Mera" Suit Alleging FLSA Violations TAKATA CORP: Faces "Snyder's" Suit Over Defective Airbags STERNE AGEE: Settles Two Class Actions Over Botched IPO SUBWAY: Settles Class Action Over Footlong Sandwiches T-MOBILE US: Faces "Leitner" Suit Over Postpaid Services UBER TECHNOLOGIES: Faces Suit for Alleged Underpayment of Drivers UBER: Judge Dismisses Driver's Data Breach Class Action WILLBROS GROUP: Dismissal of Restatement Class Action Sought VOLKSWAGEN: Center for Auto Safety Files Dirty Diesel Suit VOLKSWAGEN GROUP: Faces "Mutari" Suit Over Fraud Allegations VOLKSWAGEN GROUP: "O'Leary" Suit Alleges Common Law Fraud VOLKSWAGEN GROUP: Faces Suit in Cal. Over "Clean" Diesel Vehicles VOLKSWAGEN GROUP: Faces "Killebrew" Suit Over "Defeat" Devices VOLKSWAGEN GROUP: Faces "Lawhon" Suit Over "CleanDiesel" Engine VOLKSWAGEN GROUP: Faces "Lively" Suit Over "Defeat Device" VOLKSWAGEN GROUP: Faces "Whitcomb" Suit Over Clean Diesel Cars WAL-MART STORES: Faces "Mullins" Suit Over Pork & Beans Product ********* ALL NATION: "Pampillo" Suit Alleges FLSA Violation -------------------------------------------------- Armando Pampillo, and all others similarly-situated v. All Nation Event Services Corp, and Wilfredo V. Leonardo, Case No. 1:15-cv- 23795 (S.D. Fla., October 11, 2015), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standard Act. The Defendants offer full service events planning, coordination, consultation and management. The Plaintiff is represented by: J.H. Zidell, Esq. J.H. ZIDELL, P.A. 300 71st Street, Suite 605 Miami Beach, FL 33141 Tel: (305) 865-6766 Fax: (305) 865-7167 E-mail: zabogado@aol.com AMAZON.COM INC: Background Check Summary Judgment Motion Denied --------------------------------------------------------------- Christina Davis, writing for Top Class Actions, reports that the plaintiff in the class action lawsuit accusing Amazon.com Inc. and a staffing company of violating federal law because they did not disclose the information found in a background check that was used to deny employment filed a motion to certify the proposed Class. In April, lead plaintiff Gregory Williams filed a class action lawsuit in Washington state federal court alleging that Amazon and Staff Management Solutions, which is also called SMX, violated the Fair Credit Reporting Act (FCRA). According to the Amazon background check lawsuit, Williams was denied employment at an Amazon warehouse based on an incorrect background check that was not disclosed to him. A summary judgment motion filed by Amazon.com, staffing agency SMX LLC and its affiliate Staff Management Solutions LLC was recently denied. In their motion for summary judgment, Amazon argued that the FCRA class action lawsuit should be dismissed because Amazon had offered him the Fair Credit Reporting Act's $1,000 statutory damages. U.S. District Judge Gary Feinerman denied Amazon's motion and noted that the plaintiff would be vulnerable to a "pick-off" until a motion to certify the proposed Class was filed. The attorney representing the plaintiff explained that the court should certify two nationwide Classes in order to avoid being "picked off" by a settlement offer. "Defendants, through their unsuccessful motion for summary judgment, have made clear that they will seek to decapitate the class by picking off Mr. Williams as a class representative through an offer of individual settlement," said the attorney for the plaintiff. "Plaintiff therefore submits this motion to remove all doubt that he seeks to represent classes of consumers subjected to defendants' common procedures." Mr. Williams proposed one Class that would include all unsuccessful Amazon applicants who were denied employment as a result of background reports without receiving a copy of that report, and another for those who applied through the staffing agency, SMX. According to the motion seeking certification of the Amazon class action lawsuit, the Classes would consist of those who were not offered jobs based on their background report over a five-year period ending this past April, when the complaint was filed. The proposed Classes could include up to hundreds of thousands, according to Mr. Williams, because SMX allegedly has a standardized procedure subject to error. Additionally, Amazon's size and use of SMX to fill positions over the holidays means that many job applicants were potentially affected by the alleged practice. Separate litigation has been initiated against Amazon and SMX over allegedly failing to compensate employees for time they spend passing through security checks. Mr. Williams is represented by Christopher Green of GreenLawFirm PS and James A. Francis and John Soumilas of Francis & Mailman PC. The Amazon Background Check Class Action Lawsuit is Gregory Williams v. Amazon.com Inc., et al., Case No. 2:15-cv-00542, in the U.S. District Court for the Western District of Washington. AMAZON: Files Suit Against Over 1,000 Unidentified Reviewers ------------------------------------------------------------ Corey Fedde, writing for The Christian Science Monitor, reports that Amazon is taking another crack at eliminating fake reviews. This time, through litigation aimed at individuals, not businesses. The online retail giant is taking legal action against over 1,000 unidentified reviewers, who Amazon says have been offering fake review writing services for money -- some for as little as $5 per review. The lawsuit follows an investigation conducted by Amazon itself. Undercover Amazon employees went to Fiverr, an online marketplace for individuals seeking to sell services to others, and looked for offers to write fake Amazon reviews. The Amazon investigators would contact the potential reviewers and even hired several of them. According to Geekwire, Fiverr user "bess98" offered to write from various computers to avoid detection by Amazon. "Verifiedboss," another user offered fake reviews for money, asked Amazon's investigators to write reviews themselves and send them to him or her. "Defendants are misleading Amazon's customers and tarnishing Amazon's brand for their own profit and the profit of a handful of dishonest sellers and manufacturers," Amazon's complaint reads. The lawsuit refers to the alleged reviewers as John Does, as their identities are unknown outside of online usernames. Fiverr.com, the online market place where many of the review services were offered, is not a target of the lawsuit. "We have worked closely together to remove services that violate our terms of use, and respond promptly to any reports of inappropriate content," Fiverr Spokesman Channing Barringer told Bloomberg. This isn't the first legal action Amazon has taken against fake reviews. The company filed a similar lawsuit in April 2015 against "BuyAmazonReviews.com" and other similarly named sites, seeking to shut them down. Online reviews are now widely utilized throughout the online retail and service industries. Even physical stores and restaurants are impacted by what customers and individuals post about them online. A Harvard study showed that an increase in a rating on Yelp corresponded with an increase in revenue for a company, according to Forbes. A one-star increase resulted in a 5 to 9 percent increase in revenue. The potential for such large financial impact from reviews has given way various problems, including bogus online feedmack, and prompted myriad lawsuits for false or negative reviews on Yelp!, Angie's List, Amazon, blogs, Facebook, and Twitter. In March, after an underwhelming experience with a dog obedience class, Virginian Jennifer Ujimori posted negative reviews on Yelp and Angie's List. The company, Dog Tranquility, responded with a defamation lawsuit for $65,000. "I do not believe a customer imagines that typing out a review of their experience followed by a few clicks can result in getting slapped with a $65,000 lawsuit," said Jonathan Phillips, Ms. Ujimori's attorney, to the Washington Post. Still, there is somewhat of a cottage industry building around online reviews that are bogus or, at minimum, a tad hyperbolic. A slew of Tumblrs and websites are dedicated to finding and glorifying the best and funniest reviews online, for example. Those, combined with users and sites profiting off fake posts, are part of what Amazon called a thriving "unhealthy ecosystem" of online reviews. Host sites themselves, however, aren't free of accusations of foul play when it comes to online reviews. A class-action lawsuit from August 2014 alleged that Yelp required small businesses to pay to cover up negative reviews on its site. BB&T CORP: Faces Suit in N.C. Over Alleged ERISA Violation ---------------------------------------------------------- Brewster Smith, Jr., Doris Kirouac, Christina Hawks, Regina Nickles, Deborah Riggs, and Patricia Wells, individually and as representatives of a class of similarly situated persons, and on behalf of the BB&T Corporation 401(k) Savings Plan v. BB&T Corporation, BB&T Corporation Employee Benefits Plan Committee, BB&T Corporation Board of Directors, Compensation Committee of the Board of Directors of BB&T Corporation, John A. Allison, IV, Jennifer S. Banner, K. David Boyer, Jr., Anna R. Cablik, Nelle R. Chilton, Ronald E. Deal, Tom D. Efird, James A. Faulkner, Barry J. Fitzpatrick, J. Littleton Glover, Jr., L. Vincent Hackley, Jane P. Helm, I. Patricia Henry, John P. Howe, III, Eric C. Kendrick, Kelly S. King, Valeria Lynch Lee, Louis B. Lynn, James H. Maynard, Albert O. McCauley, Edward C. Milligan, J. Holmes Morrison, Charles A. Patton, Nido R. Qubein, William J. Reuter, Tollie W. Rich, Jr., E. Rhone Sasser, Christine Sears, Thomas E. Skains, Thomas N. Thompson, Edwin H. Welch, Stephen T. Williams, Steven L. Reeder, Branch Banking and Trust Company, Sterling Capital Management LLC, and John Does 1-20, Case No. 1:15-cv-00841 (M.D.N.C., October 8, 2015), arises from alleged breaches of fiduciary duties by BB&T Corporation and its Board of Directors in the management of their employees' 401(k) plan (the BB&T Corporation 401(k) Savings Plan in violation of the Employee Retirement Income Security Act. BB&T Corporation is a financial holding company. The Plaintiffs are represented by: David B. Puryear, Jr., Esq. PURYEAR & LINGLE, PLLC 5501-E Adams Farm Lane Greensboro, NC 27407 Phone: (336) 218-0227 E-mail: puryear@puryearandlingle.com - and - Jerome J. Schlichter, Esq. Michael A. Wolff, Esq. Troy A. Doles, Esq. Heather Lea, Esq. Sean E. Soyars, Esq. SCHLICHTER, BOGARD & DENTON LLP 100 South Fourth Street St. Louis, MO 63102 Phone: (314) 621-6115 E-mail: jschlichter@uselaws.com mwolff@uselaws.com tdoles@uselaws.com hlea@uselaws.com ssoyars@uselaws.com BIG WATER: Class Cert. Bid in "Reed" Case Denied ------------------------------------------------- District Judge David C. Norton of the United States District Court for District of South Carolina adopted in part and denied in part the Report and Recommendation (R&R) issued by United States Magistrate Judge Mary Gordon Baker and denied Plaintiffs' motion to certify class without prejudice in the case captioned, WILLIAM REED, DONNA REED, BONNIE YOUMANS, JANE YATES, and PHILLIP CAULDER, all individually and for the benefit and on behalf of all others similarly situated, Plaintiffs, v. BIG WATER RESORT, LLC; TLC HOLDINGS, LLC; RICHARD CLARK; JAMES THIGPEN; JIMMY "STEVE" LOVELL; and OCOEE, LLC, Defendants. BIG WATER RESORT, LLC; TLC HOLDINGS, LLC; RICHARD CLARK; JAMES THIGPEN; JIMMY "STEVE" LOVELL; and OCOEE, LLC, Third-Party Plaintiffs, v. M.B. HUTSON, a/k/a M.B. HUDSON, Third-Party Defendant, Case No. 2:14-CV-1583-DCN. Plaintiffs all purchased memberships in the club known as Big Water Resort for approximately $8,400.00 per membership and were promised that they would have a membership in a private club operated at the Big Water Resort for their lifetime plus the life of one survivor. Plaintiffs further allege that the membership contract promised "hat the club would be members only" and that members "would have access to the land owned by TLC for the lives of each member and their survivor. Plaintiffs, taking issue with the state of their memberships, filed suit on April 22, 2014. In their amended complaint, plaintiffs allege the following causes of action: (1) declaratory and injunctive relief; (2) breach of contract; (3) tortious interference with contract; (4) fraudulent conveyance; (5) violation of time share statutes; (6) negligence per se; (7) negligence; (8) negligent misrepresentation; and (9) piercing the corporate veil. On January 1, 2015, plaintiffs filed a motion to certify class, seeking class certification of all of their claims, other than their claim for negligent misrepresentation. Defendants filed a response on March 13, 2015, to which plaintiffs replied on April 15, 2015. The magistrate judge issued an R&R on August 3, 2015, denying class certification under Rule 23(b)(2) and Rule 23(b)(3). Both parties object to the R&R. Plaintiffs argue that the magistrate judge erred in: (1) denying plaintiffs' motion for class certification; (2) "finding that common issues do not predominate solely because of a potential statute of limitations defense"; and (3) "finding that while the damages model presented is reliable on a class-wide basis, it is inappropriate because it omits too many relevant considerations to be a viable method." Defendants argue that the magistrate judge erred in finding that: (1) plaintiffs' proposed class is ascertainable; and (2) plaintiffs complied with Federal Rule of Civil Procedure 23(a). In his Order dated September 21, 2015 available at http://is.gd/zNU9Zufrom Leagle.com, Judge Norton found that plaintiffs' proposed class is ascertainable and have met the commonality requirement under Rule 23(a). The Court found that class certification is inappropriate under Rule 23(b)(2) because plaintiffs have admitted that their claims for declaratory and injunctive relief seek to facilitate a monetary judgment. The parties have 90 days from the issuance of the order to engage in discovery limited to the statute of limitations issue. At the close of discovery, if appropriate, plaintiffs may re-file their motion to certify class under Rule 23(b)(3). Plaintiffs are represented by Brady Ryan Thomas, Esq. -- bthomas@rpwb.com, Christopher James Moore, Esq. -- cmoore@rpwb.com & Terry Edward Richardson, Jr., Esq. -- trichardson@rpwb.com -- RICHARDSON PATRICK WESTBROOK AND BRICKMAN - and - William R. Padget, Esq. Carl David Hiller, Esq. Harry L. Goldberg, Esq. FINKEL LAW FIRM 1201 Main St #1800, Columbia, SC 29201 Tel: (803)470-0118 Defendants are represented by Carlyle Richardson Cromer, Esq. -- ccromer@turnerpadget.com, John Smith Wilkerson, III, Esq. -- jwilkerson@turnerpadget.com, Jon Rene Josey, Esq. -- rjosey@turnerpadget.com, Richard S. Dukes, Jr., Esq. -- rdukes@turnerpadget.com & R. Wayne Byrd, Esq. -- wbyrd@turnerpadget.com -- TURNER PADGET GRAHAM AND LANEY BOFI HOLDING: Kessler Topaz Files Shareholder Class Action ---------------------------------------------------------- The law firm of Kessler Topaz Meltzer & Check, LLP on Oct. 19 disclosed that a shareholder class action lawsuit has been filed against of BofI Holding, Inc. on behalf of purchasers of the Company's securities between September 4, 2013 and October 13, 2015, inclusive. BOFI shareholders who wish to discuss this action and their legal options are encouraged to contact Kessler Topaz Meltzer & Check, LLP (Darren J. Check, Esq., D. Seamus Kaskela, Esq. or Adrienne O. Bell, Esq.) at (888) 299-7706 or at info@ktmc.com. For additional information about this lawsuit, or to request information about this action online, please visit http://www.ktmc.com/new-cases/bofi-holding-inc BofI operates as the holding company for BofI Federal Bank, a provider of consumer and business banking products through the Internet in the United States. BofI Federal Bank's most significant business is providing mortgages to high-net worth individuals for the purchase of expensive properties though BofI Federal Bank's Bank of Internet USA brand. The Complaint alleges that BOFI and certain of its executive officers made a series of false and misleading statements during the Class Period, and failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, the defendants are alleged to have made false and misleading statements and/or failed to disclose that: (i) the Company's internal controls were frequently disregarded; (ii) Bank of Internet's borrowers included foreign nationals who should have been off-limits under federal anti-money-laundering laws; (iii) many Bank of Internet accounts lacked required tax identification numbers; (iv) Bank of Internet fired an internal auditor who raised the foregoing issues to management and to federal regulators; and (v) as a result, the Company's statements regarding its internal controls and other financial statements were materially false and misleading at all relevant times. As detailed more fully in the Complaint, on October 13, 2015, The New York Times reported that Matt Erhart, a former internal auditor at Bank of Internet, filed a lawsuit against the Company alleging that it violated federal laws designed to protect whistleblowers. The Ernhart Complaint alleged, among other things, that (i) Bank of Internet's borrowers "included foreign nationals who should have been off-limits under the federal anti- money-laundering laws," (ii) Bank of Internet "at times failed to provide full and timely information to regulators," and (iii) Erhart "was fired after he revealed wrongdoing at Bank of Internet to management and regulators." On this news, shares of BofI's common stock declined $42.87 per share, or 30.2%, to close on October 14, 2015 at $99.13 per share, on heavy trading volume. BOFI shareholders who purchased their securities during the Class Period may, no later than December 14, 2015, petition the Court to be appointed as a lead plaintiff of the class. A lead plaintiff is a representative party who acts on behalf of other class members in directing the litigation. In order to be appointed as a lead plaintiff, the Court must determine that the class member's claim is typical of the claims of other class members, and that the class member will adequately represent the class in the action. Your ability to share in any recovery is not affected by the decision of whether or not to serve as a lead plaintiff. Any member of the purported class may move the court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. Kessler Topaz Meltzer & Check -- http://www.ktmc.com-- prosecutes class actions in state and federal courts throughout the country. Kessler Topaz Meltzer & Check is a driving force behind corporate governance reform, and has recovered billions of dollars on behalf of institutional and individual investors from the United States and around the world. The firm represents investors, consumers and whistleblowers (private citizens who report fraudulent practices against the government and share in the recovery of government dollars). The complaint in this action was not filed by Kessler Topaz Meltzer & Check. BOFI HOLDING: Stull, Stull Files Securities Class Action in NY -------------------------------------------------------------- Stull, Stull & Brody on Oct. 19 disclosed that a class action lawsuit was commenced in the United States District Court for the Southern District of New York on behalf of persons who purchased or acquired the shares of BofI Holding, Inc. between September 4, 2013 and October 13, 2015, inclusive. If you purchased BofI Holding securities during the Class Period you may move the Court to serve as lead plaintiff by no later than December 14, 2015. A lead plaintiff is a representative party that acts on behalf of other class members in directing the litigation. SS&B is also investigating whether allegations in the class action were also breaches of fiduciary duties by the officers and directors of BofI Holding. An action for breaches of fiduciary duty can be brought as a derivative action by a shareholder who held Company stock at the start of the Class Period and who continues to hold Company stock until the derivative action has concluded. The complaint alleges that defendants violated securities laws because the Company's subsidiary Bank of the Internet ("BofI")'s internal controls were disregarded, loans were illegally made to foreign nationals, accounts lacked required tax information, BofI fired an internal auditor who raised these issues, and BofI's statements, including regarding its internal controls, were materially false and misleading. If you wish to discuss this action or have any questions concerning this notice or your rights or interests with respect to these matters, please contact Michael J. Klein, Esq. at Stull, Stull & Brody by e-mail at BOFI@ssbny.com by calling toll-free 1- 800-337-4983 x147, or by fax at 212/490-2022, or by writing to Stull, Stull & Brody, 6 East 45th Street, New York, NY 10017. You can also visit our website at www.ssbny.com Stull, Stull & Brody -- http://www.ssbny.com-- has litigated many class actions for violations of securities laws and breaches of fiduciary duty on behalf of defrauded investors over the past 40 years and has obtained court approval of substantial settlements on numerous occasions. Stull, Stull & Brody has offices in New York and Beverly Hills. CANAL MANAGEMENT: "Joseph" Suit Alleges Labor Law Violation ----------------------------------------------------------- Randy Joseph, and other similarity situated individuals v. Canal Management, Inc., a Florida Profit Corporation, Anthony Askowitz, individually, Case 1:15-cv-23775-PCH (S.D.Fla., October 8, 2015), seeks damages exceeding $15,000, excluding attorneys' fees or costs for unpaid wages under the Fair Labor Standards Act. The Plaintiff is represented by: Anthony M. Georges-Pierre, Esq. Rainier Regueiro, Esq. REMER & GEORGES-PIERRE, PLLC 44West Flagler St., Suite 2200 Miami, FL 33130 Phone: 305-416-5000 Fax: 305-416-5005 E-mail:agp@rgpattorneys.com COAST TO COAST: Faces "Rivera" Suit Alleging Labor Laws Breach -------------------------------------------------------------- Veronica Rivera, individually and on behalf of all others similarly situated v. Coast To Coast Computer Products, Inc., a California corporation; and DOES 1 through 20, inclusive, Case No.BG 597535 (Cal. Super., County of Los Angeles, October 9 2015), alleges that the Defendants have engaged in a systematic pattern of wage and hour violations under the California Labor Code and Industrial Welfare Commission Wage Orders, all of which contribute to Defendants' deliberate unfair competition. Defendant Coast to Coast Computer Products, Inc. provides computer and printing supplies to businesses and governmental agencies nationwide. The Plaintiff is represented by Kashif Haque, Esq. SamuelA. Wong, Esq. Jessica L. Campbell, Esq. AEGIS LAW FIRM, PC 9811 Irvine Center Drive, Suite 100 Irvine, CA 92618 Phone: (949) 379-6250 Fax: (949) 379-6251 - and - Michael C. Robinson, Esq. ROBINSON EMPLOYMENT LAW, PC 17702 Mitchell N Irvine, CA 92614 Phone: (949) 756-9050 Fax: (949) 271-4700 DEUTSCHE POST: Court Grants Final Approval of Marshall Suit Deal ---------------------------------------------------------------- District Judge Raymond J. Dearie of the United States District Court for Eastern District of New York granted final approval of the class settlement in the case captioned, DIONNE MARSHALL and LUCIA GOMEZ, on behalf of themselves and all others similarly situated, Plaintiffs, v. DEUTSCHE POST DHL and DHL EXPRESS (USA) INC., Defendants, Case No. 13-CV-1471(RJD)(JO). Plaintiffs brought this action on March 20, 2013, on behalf of similarly-situated current and former hourly paid and non-exempt service agents of DHL at John F. Kennedy International Airport, Los Angeles International Airport, and Miami International Airport. According to the complaint, DHL undercompensated its employees by configuring the time clocks to round down, automatically reducing 30 minutes for meal breaks, and requiring that employees perform work before clocking in or after clocking out. Near the end of discovery, class counsel moved for certification of the case as a collective action pursuant to 29 U.S.C. Section 216(b). DHL opposed the motion. While the motion was fully briefed, Judge Orenstein stayed its disposition so that the parties could try to settle the case. The parties mediated, and after a series of negotiations, settled the case on November 11, 2014. The settlement releases the class's claims against DHL in exchange for $1,500,000. Section 4.2 of the settlement agreement provides that class counsel's attorneys' fees and costs, services payments to class representatives, DHL's portion of payroll taxes, settlement administrative costs, and a payment to the California Workforce Development Agency (a "PAGA" payment) will be deducted from the total settlement amount. If the total sum of these individual settlement payouts exceeds the remaining total of the settlement then each claimant's payout is reduced on a pro rata basis. In the motion, Plaintiffs moved for final approval of the settlement, an award of attorneys' fees and costs, and an award of service payments to the named plaintiffs. Counsel report that they billed 1,325 hours on the case for a total lodestar of $591,571.25. They request a fee award of $500,000, which represents one third of the settlement amount. Counsel also seeks to be reimbursed for $33,371.39 in costs, which were largely incurred on travel, deposition transcripts, mediation fees, and photocopy expenses. Plaintiffs seek service awards of $5,000 each for a total of $15,000. In his Memorandum and Order dated September 21, 2015 available at http://is.gd/3y8xlFfrom Leagle.com, Judge Dearie granted final approval of the settlement finding it substantively fair and adequate. The Court awarded $370,236.50 in fees to class counsel; $33,371.39 in reimbursement for costs to class counsel; $5,000 to each of the plaintiffs as a service award; and $5,000 as PAGA payment. Plaintiffs are represented by Brett Gallaway, Esq. -- bgallaway@mclaughlinstern.com, Lee S. Shalov, Esq. -- lshalov@mclaughlinstern.com, Neil Barry Solomon, Esq. -- nsolomon@mclaughlinstern.com & Wade Christopher Wilkinson, Esq. -- wwilkinson@mclaughlinstern.com -- MCLAUGHLIN & STERN, LLP - and - Louis Ginsberg, Esq. Matthew Cohen, Esq. LAW FIRM OF LOUIS GINSBERG, P.C. The Woolworth Building 233 Broadway, Suite 2220 New York, NY 10279 Tel:(212) 406-3630 Defendants are represented by Christina Jane Fletcher, Esq. -- CJFletcher@duanemorris.com, Julie A. Vogelzang, Esq. -- Jvogelzang@duanemorris.com, Kevin E. Vance, Esq. -- Kvance@duanemorris.com & Michael Tiliakos, Esq. -- Mtiliakos@duanemorris.com -- DUANE MORRIS LLP DIRECTV GROUP: Defending Against NFL Sunday Ticket Litigation ------------------------------------------------------------- DIRECTV Group Holdings, LLC, (successor in interest to DIRECTV, is defending against the NFL Sunday Ticket Litigation, the Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 7, 2015, for the quarterly period ended June 30, 2015. DIRECTV has been served with three putative class actions filed in the U.S.; District Court for the Central District of California against DIRECTV and the NFL alleging among other things that the agreement among the defendants for DIRECTV's exclusive distribution of NFL Sunday Ticket violates Sections 1 and 2 of the Sherman Act and that plaintiffs have been overcharged for the televised presentation of out-of-market NFL games. The complaint in Abrahamian v. National Football League, Inc., et al., was served in June 2015, the complaint in Ninth Inning Inc. v. National Football League, Inc., et al. was served in July 2015 and the complaint in Rookie Sports Cafe, L.L.C., et al., was served in August 2015. The complaints seek injunctions, unspecified treble damages and attorneys' fees. "We are confident that our agreement with the NFL does not violate the Sherman Act and intend to vigorously defend the lawsuits," the Company said. DIRECTV GROUP: Trial Expected This Fall in MLB Litigation --------------------------------------------------------- DIRECTV Group Holdings, LLC, (successor in interest to DIRECTV, said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 7, 2015, for the quarterly period ended June 30, 2015, that trial is expected in the fall of 2015 in the Major League Baseball Litigation. A class was certified by Judge Shira Scheindlin in the case Lerner et al. v. Office of the Commissioner of Baseball et al. filed in May 2015 in federal court for the Southern District of New York. Judge Scheindlin ruled that the plaintiffs were entitled to seek an injunction on behalf of a class of subscribers who had purchased MLB Extra Innings from DIRECTV, Comcast and MLB, to prevent MLB from enforcing league rules that grant member teams exclusive home team territories. The Judge also ruled that the plaintiffs were not entitled to seek damages on behalf of the class. A trial is expected in the fall of 2015. The defendants intend to defend the case and pursue appeals to reverse the numerous errors of law that formed the bases of the trial court's orders. DISNEY: Lack of Captioning Prompts Civil Rights Class Action ------------------------------------------------------------ Dominic Patten, writing for Deadline, reports that both Captain America films, X-Men, Selma, Skyfall, House Of Cards, and The Godfather are among the movies and series accused of discriminating against the deaf and hearing impaired. They are at the center of a multi-claim and civil rights violating potential class action lawsuit filed on Oct. 19 against Disney, Fox, Warner Bros, Paramount, Universal, Sony and Netflix over the lack of captioning or subtitling for the films and shows in their home entertainment versions -- or, to be more specific, the songs performed or featured within in them. "While the dialogue of some movies or shows are indeed fully subtitled, the practice of not subtitling song/music lyrics is frustratingly widespread," said the nine-plaintiff complaint filed in L.A. Superior Court. Seeking unspecified damages and injunctive relief, the complaint seeks to have certification to include all Americans "with any hearing loss and/or impairment" in the proposed class. Recent census data estimates that more 1 million people in the United States are deaf, with many more suffering various stages of hearing loss. Citing feelings of "frustration and anger" and ranging from California to Virginia to the commonwealth of Massachusetts and Maryland, the plaintiffs allege that such actions by the studios and Netflix are a violation of California's Unruh Civil Rights Act. "Defendants' acts and omissions as specified herein have proximately caused Plaintiffs and class members; to suffer a loss of their civil rights -- and their rights as a person with physical disabilities to receive full and equal access to the public facilities and accommodations produced and distributed by Defendants," their attorney John A. Girardi of L.A.'s Girardi Keese says in the class action complaint. "Such movie or show products were of lesser value to Plaintiffs and class members, than to persons without hearing loss." "Defendant produced and distributed several DVDs enclosed in packaging with language advertising the DVDs were subtitled, movies that were advertised as captioned, and movies or shows with language, such as captioned, English subtitles, or subtitles for the deaf and hard of hearing, indicating that the movie or show is fully captioned or subtitled. Captions and subtitles allow Plaintiffs and class members, to follow the content of a film or show visually if they are not able to do so aurally. The DVD packaging does not indicate that the subtitles are limited in any way." And yet, often on the aforementioned projects plus many more from Guardians Of The Galaxy -- which had a highly promoted classic soundtrack -- to Minions and Interstellar to Orange Is The New Black and the four-decade-old Rocky, the songs are left untitled, like commercials on closed captioning on many TVs. None of the studios or Netflix responded to requests for comment on the matter. Christine Anthony, Susan Boswell, Evan Brunell, Darby Leigh, Ken Levinson, Catharine McNally, Pauline Newton, Jay Wyant And Kristin Zlogar are the plaintiffs in the case. EMERGENT CAPITAL: Shareholder Class Action Dismissed ---------------------------------------------------- Gardner F. Davis, Esq. -- gdavis@foley.com -- of Foley & Lardner LLP, in an article for The National Law Review, reports that in what is believed to be the first case nationwide seeking to strike down a groundbreaking corporate bylaw aimed at combating frivolous shareholder class actions, Emergent Capital, Inc., has secured the dismissal with prejudice of a shareholder lawsuit challenging Emergent's minimum-support-to-sue bylaw. The bylaw, proposed by Emergent Chairman of the Board Phillip Goldstein and approved by both Emergent's Board and its shareholders, requires a shareholder to obtain the consent of holders of at least three percent of Emergent's outstanding shares before suing the company or its officers or directors on behalf of other shareholders in a class action or on behalf of the company in a derivative action. The bylaw provides as follows: "Except where a private right of action at a lower threshold than that required by this bylaw is expressly authorized by applicable statute, a current or prior shareholder or group of shareholders may not initiate a claim in a court of law on behalf of (1) the corporation and/or (2) any class of current and/or prior shareholders against the corporation and/or against any director and/or officer of the corporation in his or her official capacity, unless the Claiming Shareholder, no later than the date the claim is asserted, delivers to the Secretary written consents by beneficial shareholders owning at least 3% of the outstanding shares of the corporation as of (i) the date the claim was discovered (or should have been discovered) by the Claiming Shareholder or (ii), if on behalf of a class consisting only of prior shareholders, the last date on which a shareholder must have held shares to be included in the class." The shareholder plaintiff had sued Emergent and its directors in Florida state court and in federal court in the U. S. District Court for the Southern District of Florida, seeking to have the minimum-support-to-sue bylaw struck down, among other claims. Emergent moved to dismiss the case, arguing that the bylaw had not injured the plaintiff in any way, and that in approving the bylaw, both the Board and the shareholders were fully informed. After Emergent and its directors filed their motion to dismiss, the lead plaintiff dismissed all claims with prejudice, without any compensation to him or his counsel. In addition to the dismissal with prejudice, the lead plaintiff made a public statement that the defendants "acted in good faith and did not engage in any improper behavior in adopting the bylaw at issue or otherwise." The dismissal leaves the bylaw in force, and it leaves the door open for other companies to follow Emergent's lead in taking action to protect shareholder value against what Emergent Chairman Phillip Goldstein called "a disturbing trend of lawyer-driven knee-jerk strike suits against directors and officers of public companies." Mr. Goldstein said that "we strongly believe this is a very good bylaw that deters such suits without unduly impeding meritorious representative lawsuits." ENHANCED RECOVERY: Faces "Miller" Suit Alleging FLSA Violations --------------------------------------------------------------- Antonio Miller Sr., on behalf of himself and all similarly situated individuals, v. Enhanced Recovery Company LLC, a Florida Corporation, individually, Case 3:15-cv-01203-TJC-PDB (M.D.Fla., October 8, 2015), seeks to recover unpaid overtime wages, an additional equal amount as liquidated damages, obtain declaratory relief and reasonable attorney's fees and costs under the Fair Labor Standards Act. Enhanced Recovery Company LLC is a debt collection agency. The Plaintiff is represented by: Michael N. Hanna, Esq MORGAN & MORGAN, P.A. 600 N. Pine Island Rd., 400 Plantation, FL 33324 Phone: 954-318-0268 Phone: 954-333-3515 E-mail: MHanna@forthepeople.com FACEBOOK: Austrian Student Loses Appeal in Privacy Class Action --------------------------------------------------------------- Rob Price, writing for Business Insider, reports that Austrian law student and privacy activist Max Schrems has reportedly lost his appeal over a class-action lawsuit he brought against Facebook over alleged privacy violations. In July, a Viennese court had rejected Schrems class-action, brought on behalf of 25,000 European Facebook-using claimants. Schrems subsequently appealed this decision -- resulting in the Oct. 20 verdict. The court rejected the case in July because it said it didn't have the necessary jurisdiction, The Wall Street Journal reported at the time. FANDUEL INC: Faces "Johnson" Suit Over Sports Website Operation --------------------------------------------------------------- Adam Johnson, Individually And On Behalf of All Others Similarly Situated v. Fanduel, Inc., a Delaware corporation, and Draftkings, Inc. a Delaware corporation, Case 1:15-cv-07963 (S.D.N.Y., October 9, 2015), alleges that Defendants operate daily fantasy sports ("DFS") websites in a manner that violates Kentucky, Massachusetts and New York law. The Plaintiff is represented by: Paul C. Whalen LAW OFFICE OF PAUL C. WHALEN, P.C. 768 Plandome Road Manhasset, NY 11030 Phone: (516) 426-6870 Fax: (212) 658-9685 E-mail:pcwhalen@gmail.com - and - Jasper D. Ward IV, Esq. Alex C. Davis, Esq. JONES WARD PLC Marion E. Taylor Building 312 S. Fourth Street, Sixth Floor Louisville, KY 40202 Phone: (502) 882-6000 Fax: (502) 587-2007 E-mail:jasper@jonesward.com alex@jonesward.com FERGUSON, MO: Mulls Settlement of Civil Rights Suit --------------------------------------------------- Ryan J. Reilly and Mariah Stewart, writing for The Huffington Post, report that lawyers representing the city of Ferguson, Missouri, are considering settling a federal civil rights lawsuit alleging widespread constitutional abuses in its municipal court system, which -- along with the other municipal courts in St. Louis County -- came under heavy scrutiny following the death of Michael Brown in August 2014. A filing on Oct. 19 indicated that lawyers representing Ferguson and the civil rights attorneys representing poor defendants held in Ferguson's jail had "been engaged in meaningful settlement discussions" over the case. The lawsuit was filed by ArchCity Defenders, as well as nonprofit Equal Justice Under Law and the Saint Louis University School of Law, on behalf of 11 poor individuals who had been held in Ferguson's jail. A lawyer for ArchCity Defenders, a local organization, which has been heavily critical of the practices of municipal courts in St. Louis County, asked a federal judge to extend the deadline to argue for making it a class action. Lawyers for both sides did not immediately respond to request for comment. Ferguson, a suburb of St. Louis, operated a municipal court that regularly violated the rights of black citizens to fill the city's coffers, according to the Department of Justice's Civil Rights Division. The report, released earlier this year, said that many officers and officials "appear to see some residents, especially those who live in Ferguson's predominately African-American neighborhoods, less as constituents to be protected than as potential offenders and sources of revenue." The report found that the city, police and court officials have "worked in concert to maximize revenue at every stage of the enforcement process" for several years, and that black citizens were disproportionately ticketed. In August, the Ferguson City Council appeared to reject the DOJ's first proposal to change and reform Ferguson's practices. The Oct. 19 filing was the first indication that the city of Ferguson had entered into negotiations over the lawsuit, which is separate from the justice department probe. The lawsuit at issue alleged it was the practice of the city to "confine impoverished people who cannot afford their release in grotesque, dangerous, and inhumane conditions." The lawsuit filed in February said that impoverished people arrested in Ferguson are: "kept in overcrowded cells; they are denied toothbrushes, toothpaste, and soap; they are subjected to the constant stench of excrement and refuse in their congested cells; they are surrounded by walls smeared with mucus and blood; they are kept in the same clothes for days and weeks without access to laundry or clean underwear; they step on top of other inmates, whose bodies cover nearly the entire uncleaned cell floor, in order to access a single shared toilet that the City does not clean; they develop untreated illnesses and infections in open wounds that spread to other inmates; they endure days and weeks without being allowed to use the moldy shower; their filthy bodies huddle in cold temperatures with a single thin blanket even as they beg guards for warm blankets; they are not given adequate hygiene products for menstruation; they are routinely denied vital medical care and prescription medication, even when their families beg to be allowed to bring medication to the jail; they are provided food so insufficient and lacking in nutrition that inmates lose significant amounts of weight; they suffer from dehydration out of fear of drinking foul smelling water that comes from an apparatus on top of the toilet; and they must listen to the screams of other inmates languishing from unattended medical issues as they sit in their cells without access to books, legal materials, television, or natural light." The city of Jennings, which is near Ferguson, has already agreed to settle a federal civil rights lawsuit that was filed at the same time the lawsuit against Ferguson was filed. Another nearby town, the tiny municipality of Velda City, agreed to end its cash- only fixed bail system that kept the poor imprisoned over low- level charges. Yet another town in St. Louis County, St. Ann, is also under a federal court order to release those they arrest as soon as practicable after booking unless they appear before a judge within 24 hours. Thomas Harvey, of ArchCity Defenders, said in an email that his organization is working on details of the settlement with Ferguson and that both sides had agreed to ask for a deadline extension. He added that there was nothing to report publicly at this time. FLEETCOR TECHNOLOGIES: Faces Suit in Ga. Over FLSA "Violations" --------------------------------------------------------------- Antoaneta Mintchev and Toriton Sellers, Individually and on behalf of all others similarly situated, v. Fleetcor Technologies Operating Company, LLC, Case 1:15-cv-03586-CAP (N.D.Ga., October 8, 2015), alleges violations of the Fair Labor Standards Act. Defendant provides fuel cards and workforce payment products to businesses, commercial fleets, oil companies, petroleum marketers and government entities throughout the United States. The Plaintiffs are represented by: Mitchell L. Feldman, Esq. FELDMAN LAW GROUP P.A 1201 Peachtree Street Colony Square, Suite 200 Atlanta, GA 30361 Phone: (813) 639-9366 Fax: (813) 639-9376 E-mail:mfedman@ffmlawgroup.com rmassa@ffmlawgroup.com nsuarez@ffmlawgroup.com GLAXOSMITKLINE: 3rd Cir. Vacates Dismissal of "King Drug" Case -------------------------------------------------------------- Circuit Judge Scirica of the United States Court of Appeals, Third Circuit vacated the judgment of the district court granting a motion to dismiss the case captioned, KING DRUG COMPANY OF FLORENCE, INC.; LOUISIANA WHOLESALE DRUG CO., INC., on behalf of itself and all others similarly situated, Appellants, v. SMITHKLINE BEECHAM CORPORATION, doing business as GLAXOSMITHKLINE; TEVA PHARMACEUTICAL INDUSTRIES LTD.; TEVA PHARMACEUTICALS, Case No. 14-1243 for failure to state a rule-of-reason claim under Section 1 and 2 of the Sherman Act under Federal Rule of Civil Procedure 12(b)(6). The Third Circuit remanded the case for further proceedings consistent with its opinion. Plaintiffs, a putative class represented by King Drug Company of Florence, Inc., and Louisiana Wholesale Drug Co., Inc., sued GSK and Teva in federal court in February 2012 and filed their Consolidated Amended Class Action Complaint the following June. They allege that defendants, by their no-AG agreement in effect -- a settlement in which the patentee drug manufacturer agrees to relinquish its right to produce an "authorized generic" of the drug, a "reverse payment" from GSK to Teva violated section 1 of the Sherman Act by conspiring to delay generic competition for Lamictal tablets and section 2 by conspiring to monopolize the lamotrigine tablet market. In late January 2005, the parties tried the patent case before Judge Bissell, who ruled that the patent's main claim, for the invention of lamotrigine, was invalid. Plaintiffs allege that "it was highly likely that Teva would prevail with respect to the remaining patent claims," which "were extremely weak in view of Judge Bissell's ruling that claim 1 was invalid. In February 2005, the parties settled their dispute before Judge Bissell could rule on the validity of the '017 patent's remaining claims. GSK agreed to allow Teva to market generic lamotrigine chewables by no later than June 1, 2005, or 37 months before the patent was to expire on July 22, 2008. On appeal, Plaintiffs contend that under Actavis antitrust scrutiny is not limited to reverse payments of cash. They assert the antitrust laws may be violated when a brand-name drug manufacturer induces a would-be generic competitor to delay market entry by agreeing not to launch an authorized generic to compete with the generic. In the Opinion dated September 23, 2015 available at http://is.gd/fAnO9xfrom Leagle.com, Judge Scirica concluded that the no-AG agreement falls under Actavis's rule because it may represent an unusual, unexplained reverse transfer of considerable value from the patentee to the alleged infringer and may therefore give rise to the inference that it is a payment to eliminate the risk of competition and that the kind of settlements in the action are subject to the rule of reason. Plaintiffs are represented by Peter S. Pearlman, Esq. -- psp@njlawfirm.com -- COHN, LIFLAND, PEARLMAN, HERRMANN & KNOPF Defendants are represented by Jonathan D. Janow, Esq. -- jonathan.janow@kirkland.com, John C. O'Quinn, Esq. -- john.oquinn@kirkland.com & Karen N. Walker, Esq. -- kwalker@kirkland.com -- KIRKLAND & ELLIS GLOBE ENERGY: Faces "Serrano" Suit Over FLSA Violations ------------------------------------------------------- Mario Serrano, individually and on behalf of all others similarly situated v. Globe Energy Services, LLC, Case 7:15-cv-00170 (W.D.Tex., October 8, 2015), seeks to recover unpaid overtime wages and other damages for Operators under the Fair Labor Standards Act. Globe is an oilfield service company with significant operations in the southwest United States. Globe provides well servicing, fishing and rental, fluid services, completion systems, production chemicals, and artificial lift services through professionals. The Plaintiff is represented by: Michael A. Josephson, Esq. Andrew Dunlap, Esq. Lindsay R. Itkin, Esq. Jessica M. Bresler, Esq. FIBICH, LEEBRON, COPELAND, BRIGGS &JOSEPHSON 1150 Bissonnet Houston, TX 77005 Phone: 713-751-0025 Fax: 713-751-0030 E-mail: mjosephson@fibichlaw.com jbresler@fibichlaw.com adunlap@fibichlaw.com litkin@fibichlaw.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH, P.L.L.C. 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Phone: 713-877-8788 Fax: 713-877-8065 E-mail: rburch@brucknerburch.com GOLD FIELDS: Silicosis Class Action Bludgeons Gold Mining Sector ---------------------------------------------------------------- Franny Rabkin, writing for BusinessDay, reports that lawyers for mine workers in the gold sector were trying to create the biggest class of possible claimants in their silicosis class action, bludgeoning the sector in the process, Gold Fields' counsel Jeremy Gauntlett SC said on Oct. 19. The landmark case, which began in the High Court in Johannesburg on Oct. 12, has huge financial implications for gold mining companies, with estimates that there are tens of thousands of former gold miners who are suffering from silicosis. Compensation claims could run to billions. A big part of what the court must decide at this stage is how to define the class of claimants, those people who would benefit from the litigation if the class is certified. Mr Gauntlett argued that if the applicants got their way on this score, the number of potential claimants would remain obscure "until late in the day" and could run to half-a-million people. The approach taken by the applicants would make the case unmanageable and turn it into "a very blunt weapon" to bludgeon the gold mining companies, he said. The applicants want the court to certify two classes of claimants: one of former miners with silicosis and one of former miners who do not have silicosis but have tuberculosis, arguing that there is a relationship between high levels of silica dust, which suppresses the immune system, and tuberculosis. Willem van der Linde SC, also for Gold Fields, said that, unlike silicosis, tuberculosis could be triggered by a range of factors, making the link between high levels of silica dust and the disease very complex. Unlike silicosis, tuberculosis was also curable in at least 80% of the cases. Based on these factors, only four out of 100 might notionally benefit from a tuberculosis class investigation, he said. Mr. van der Linde also argued that there was no prima facie evidence that exposure to silica dust resulted in tuberculosis. The only reliable study referred to by the mine workers' legal teams had been called "flimsy" by one of their own experts, he said. Mr. Gauntlett took issue with the applicants wanting the court to order an "opt-out" approach to the litigation. In such an approach all those who fall within the class definition would benefit, unless they decided to opt out. Opting in would mean that once the class was defined, only those who chose to participate in the litigation were bound by its outcome. Mr. Gauntlett said, by going for an opt-out approach, the applicants were trying to defer the moment of establishing how many claims the gold companies would be facing, having earlier said they could number anything between 250,000 and half-a-million people. This made the case a "blunt weapon". The mine workers' lawyers have also asked the court to "develop the common law" so that the families of those mine workers who could die in the run-up to the trial could still benefit from claims for pain and suffering. Currently, the law states that if a plaintiff dies a claim for pain and suffering -- one of the claims the applicants plan to make -- dies with him, unless the case has reached the point of "litis contestatio" or close of pleadings. Close of pleadings is the point in the run-up to a trial at which all the allegations made on paper have been put before the court. Mr. van der Linde said the original thinking was that pain and suffering were viewed as highly personal and could not be transferrable commodities (like other claims such as loss of income). The "litis contestatio" rule was an exception and a "line in the sand". The courts could not simply change the line, as that was the job of the legislature, he said. But he faced a number of questions on this score from the bench with Deputy Judge President Phineas Mojapelo asking whether the original line in the sand was drawn by the courts and pointing to a number of earlier instances when the courts had scrapped entitlements under the common law. The hearing continues. GOLDMAN SACHS: Wants 2nd Cir. to Hear Appeal in Securities Suit --------------------------------------------------------------- Alison Frankel, writing for Reuters, reports that as the securities class action bar continues to figure out exactly how the U.S. Supreme Court's 2014 ruling in Halliburton v. Erica P. John Fund is going to impact shareholder fraud cases, Goldman Sachs and its lawyers at Sullivan & Cromwell want a say. The bank has asked the 2nd U.S. Circuit Court of Appeals to hear its appeal of a Sept. 24 opinion certifying a class of Goldman investors to sue over statements in which the bank claimed to put its clients' interests ahead of its own. U.S. District Judge Paul Crotty of Manhattan ruled shareholder lawyers from Labaton Sucharow and Robbins Geller Rudman & Dowd showed Goldman's share price dropped in response to four different events casting doubt on those statements. The so-called corrective disclosures included the 2010 Securities and Exchange Commission's announcement of an enforcement action against the bank for its structuring of the infamous Abacus collateralized debt obligation, which led to a nearly 13 percent stock drop; and a 2010 Wall Street Journal report that Goldman was under criminal investigation, which sent the share price down more than 9 percent. The bank tried unsuccessfully to use the 2014 Halliburton decision to block class certification. In the Halliburton decision, as you doubtless recall, the Supreme Court left in place the "fraud on the market" framework that allows shareholders sue as a class without proving individually that they relied on the defendant's supposed misrepresentations. But the court also said defendants can attempt to rebut the presumption of investor reliance. Goldman attempted to do just that, arguing that shareholders didn't sell off the bank's stock because they suddenly realized they'd placed unwarranted reliance on its conflict-of-interest promises but because they were worried about fallout from government investigations. It provided Judge Crotty with expert reports showing that Goldman's share price didn't increase when the bank put out puffery about putting its clients' interests ahead of its own and that investors didn't dump shares in response to 34 different press reports about Goldman's alleged profiteering at the expense of its clients. The stock price only responded, according to Goldman's experts, when the SEC and Justice Department got involved. Judge Crotty found that evidence wasn't good enough to rebut the presumption of reliance. "Defendants' attempt to demonstrate a lack of price impact merely marshals evidence which suggests a price decline for an alternate reason, but does not provide conclusive evidence that no link exists between the price decline and the misrepresentation," he wrote. "Where defendants cannot demonstrate a complete absence of price impact, and where plaintiffs have demonstrated an efficient market, the presumption (of reliance) applies, and plaintiffs have demonstrated classwide reliance." In its request for 2nd Circuit review of Judge Crotty's opinion, Goldman contends the judge has set an impossible standard for defendants, demanding they show a "complete absence of price impact." The bank argues that's not what the Supreme Court laid out in Halliburton, and urged the appeals court to take the case "to clarify and standardize the evidentiary showing required to rebut the . . presumption" of reliance. Goldman has backing in amicus briefs from the Securities Industry and Financial Markets Association, the U.S. Chamber of Commerce and several securities law professors, including academics who urged the Supreme Court in 2014 to do away with the presumption of reliance. Class counsel Thomas Dubbs of Labaton called Goldman's request for 2nd Circuit review "a brilliant, intellectually dishonest effort to recast already decided non-class issues as class questions." Even Goldman's experts, Mr. Dubbs said in an email, admitted that the bank's share price dropped when its alleged client conflicts came to light. That alone, he said, means shareholders can be presumed to have relied on Goldman's supposed misrepresentations. GOODYEAR TIRE: French Workers' Class Action Can't Proceed in U.S. ----------------------------------------------------------------- Daniel Wiessner, writing for Reuters, reports that a proposed class action alleging Goodyear Tire and Rubber Co failed to warn French employees of the health risks posed by chemicals used to make tires should be heard in France, a U.S. judge has ruled. U.S. District Judge John Adams in the Northern District of Ohio on Oct. 15 agreed with Goodyear that the case should not move forward in U.S. courts because France has tribunals focused on worker safety, all of the witnesses in the case are in France and most of the evidence submitted would be in French. GREATWIDE DEDICATED: Faces Suit for Unfair Business Practices ------------------------------------------------------------- Nazal Sadiq, individual, on behalf of himself and others similarly situated v. Greatwide Dedicated Transport II, LLC; Larry Sharpe; and DOES 1-10, inclusive, CASE No: RG15789114 (Cal. Super, County of Alameda, October 9, 2015), alleges failure by the Defendant to provide itemized wage statements, failure to provide meal periods, failure to reimburse business expenses, waiting time penalties, unfair business practices, racial discrimination, harassment. Greatwide Dedicated is in the business of transporting goods from one place to another throughout California and in various states nationwide. The Plaintiff is represented by: Hunter Pyle, Esq. Rachel Evans, Esq. SUNDEEN SALINAS & PYL-E 428 Thirteenth Street, Eighth Floor Oakland, CA 94612 Phone: (510) 663-9240 Fax: (510) 663-9241 E-mail: hpylc@ssrplaw.com revans@ssrplaw.com HELP AT HOME: Faces Suit Over Alleged Labor Law Violations ---------------------------------------------------------- Jennifer Phillips and Tonya Bush, individually, and on behalf of all others similarly situated, v. Help at Home, Inc., Help at Home, LLC, Statewide Healthcare Services, Inc., Statewide Healthcare Services, LLC, Hah Group Holding Company, LLC, and Ronald Ford, Case: 1:15-cv-08954 (N.D.Ill., October 8, 2015), seeks redress for Defendants' alleged wilful violations of several federal and state wage and hour laws, including the Fair Labor Standards Act, the Illinois Minimum Wage Law, the Illinois Wage Payment and Collection Act, as well as for conversion. Defendants HAH, Inc., HAH, LLC, Statewide, Inc., and Statewide, LLC, are part of a multi-state business enterprise that provides home healthcare services to customers. In many states, this business enterprise does business as "Help at Home." In other states, this business enterprise does business as "Oxford HealthCare." The Plaintiffs are represented by: Thomas A. Zimmerman, Jr., Esq. Eleonora P. Khazanova, Esq. Amy E. Collins, Esq. Matthew C. De Re, Esq. Nickolas J. Hagman, Esq. ZIMMERMAN LAW OFFICES, P.C. 77 West Washington Street, Suite 1220 Chicago, IL 60602 Phone: (312) 440-0020 Fax: (312) 440-4180 E-mail:tom@attorneyzim.com ella@attorneyzim.com amy@attorneyzim.com matt@attorneyzim.com nick@attorneyzim.com HIGHER ONE: Continues to Defend Securities Class Action ------------------------------------------------------- Higher One Holdings, Inc., continues to defend a securities class action, the Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 7, 2015, for the quarterly period ended June 30, 2015. On May 27, 2014, a putative class action captioned Brian Perez v. Higher One Holdings, Inc., No. 3:14-cv-755-AWT, was filed by HOH shareholder Brian Perez in the United States District Court for the District of Connecticut. On December 17, 2014, Mr. Perez was appointed lead plaintiff. On January 20, 2015, Mr. Perez filed an amended complaint. HOH former shareholder Robert Lee was added as a named plaintiff in the amended complaint. HOH and certain employees and board members have been named as defendants. Mr. Perez and Mr. Lee generally allege that HOH and the other named defendants made certain misrepresentations in public filings and other public statements in violation of the federal securities laws and seek an unspecified amount of damages. Mr. Perez and Mr. Lee seek to represent a class of any person who purchased HOH securities between August 7, 2012 and August 6, 2014. All defendants have moved to dismiss the Complaint. In response, Plaintiffs have filed an opposition brief opposing dismissal. HOH intends to vigorously defend itself against these allegations. HOH is currently unable to predict the outcome of this lawsuit and therefore cannot determine the likelihood of loss nor estimate a range of possible loss. JK & T WINGS: Faces Suit in Mich. for Alleged FLSA Violation ------------------------------------------------------------ Shelby Langlands And Melissa Montie, on behalf of themselves and all other persons similarly situated, known and unknown, v. JK & T Wings, Inc., a Michigan for-profit corporation, Case No: 2:15- cv-13551-VAR-MJH (E.D.Mich., October 8, 2015), seeks to recover the benefits due to them from Defendant under the Fair Labor Standards Act and the Michigan Workforce Opportunity Act as a result of Defendant's alleged failure to pay minimum wages to Plaintiffs. Defendant owned and operated approximately 40 Buffalo Wild Wings restaurant locations in the States of Massachusetts, Michigan, and Louisiana. The Plaintiffs are represented by: Bryan Yaldou, Esq. Omar Badr, Esq. LAW OFFICES OF BRYAN YALDOU, PLLC 23000 Telegraph, Suite 5 Brownstown, MI 48134 Phone: (734) 692-9200 Fax: (734) 692-9201 E-mail:bryan@yaldoulaw.com JP MORGAN: To Pay Lion's Share of CDS Class Action Settlement ------------------------------------------------------------- Matthew Heller, writing for CFO, reports that JP Morgan Chase, Morgan Stanley, and Barclays will pay the lion's share of a $1.86 billion settlement of a class-action lawsuit alleging 12 major banks conspired to fix prices and restrain competition in the credit default swap market. The settlement was announced but details were only disclosed on Oct. 16 in court papers. Investors including hedge funds, pension funds, and university endowments sued the banks in October 2013. JPMorgan will pay $595 million of the settlement, while Morgan Stanley and Barclays will pay $230 million and $178 million, respectively. According to Bloomberg, an individual defendant's portion of the settlement is largely based on the plaintiffs' measure of CDS market share. Other banks that settled include Goldman Sachs ($164 million), Bank of America ($90 million), Credit Suisse ($159 million), Deutsche Bank ($120 million), Citigroup ($60 million), and BNP Paribas ($89 million). British banks HSBC and Royal Bank of Scotland will pay $25 million and $33 million, respectively. Credit default swaps allow investors to buy protection to hedge against the risk that corporate or sovereign debt issuers will not meet their payment obligations. The market peaked at $58 trillion in 2007, according to the Bank for International Settlements, but shrank to $16 trillion seven years later as investors better understood its risks. In the class action, investors claimed the banks caused them to pay unfair prices on CDS trades from late 2008 through the end of 2013, even though improved liquidity should have driven costs down. They also said the banks tried in late 2008 to thwart the launch of a credit derivatives exchange being developed by CME Group Inc by agreeing not to use new CDS platforms and pressuring the International Swaps and Derivatives Association (ISDA) and Markit not to provide licenses to the exchange. The ISDA will pay $750,000, while Markit, which provides credit derivative pricing services, will pay $45 million to settle the investors' claims against them. A lawyer for the investors has described the outcome of the case as "one of the largest antitrust class-action settlements, and an extraordinary result for the class." KING CABLE: "Nasufi" Suit Alleges FLSA Violation ------------------------------------------------ Hamdija "Frank" Nasufi, and all others similarly situated v. King Cable, Inc. and Manuel Gonzales, Case No. 3:15-cv-03273-B (N.D. Tex., October 9, 2015), is brought against the Defendants for violation of the Fair Labor Standards Act. Defendant Gonzales is the president of King Cable. Defendant King Cable, Inc. provides cable/wire installation and is an Illinois corporation actively doing business in the State of Texas. The Plaintiff is represented by: Barry S. Hersch, Esq. HERSH LAW FIRM, PC 3626 N. Hall St., Suite 800 Dallas, TX 75219-5133 Tel. (214) 303-1022 Fax (214) 550-8170 E-mail: barry@hersh-law.com MARINELLO SCHOOLS: Beauty School Students Lose Wage Class Action ---------------------------------------------------------------- Bob Egelko, writing for SFGate, reports that a federal judge has denied wages to beauty-school students who did hair stylings without pay at salons in San Francisco and Las Vegas while their school collected the revenue from the customers. The stylists-in-training at Marinello Schools of Beauty said the school put them to work five days a week, with little supervision, and encouraged them to sell salon products when they weren't cutting and braiding hair. The students filed a class-action suit against the school, which has 57 locations in six states, seeking reclassification as employees entitled to minimum wages and overtime. But U.S. District Judge Vince Chhabria of San Francisco said on Oct. 16 that the trainees had presented little or no evidence that they were working as employees -- that Marinello designed their program mainly to benefit the school and not the students. "Clinical work is an essential part of these students' training," Chhabria said in dismissing the lawsuit, noting that state cosmetology boards require many hundreds of hours of training to qualify for a license. The fact that they "worked in a realistic salon environment isn't enough to show that their work served a business purpose over an educational purpose. . . . Working on paying customers has obvious educational value in preparing students for careers." Judge Chhabria said the students offered only "vague and sparse" evidence to back up their claim that Marinello failed to provide supervision or training: One student, for example, said instructors were present "sometimes," while another said instructors were available six times out of 10. Without more specific evidence, he said, "no reasonable juror could conclude that the schools subordinated the educational function of the clinics for the purpose of making money." Edward Cramp, a lawyer for the school, said three federal judges elsewhere have dismissed similar suits against other beauty schools. At least two of those rulings are being appealed. Leon Greenberg, a lawyer for the students, said anyone who works for a for-profit business that competes in the marketplace, like Marinello, should be considered an employee entitled to wages. "They're selling the students' labor . . . in competition with other salons," he said. MAVERICK FUND: Court Partially Grants Motion to Dismiss TAC ----------------------------------------------------------- District Judge Timothy J. Corrigan of the United States District Court for Middle District of Florida granted in part Defendants' motion to dismiss the Third Amended Complaint in the case captioned, MAVERICK FUND, L.D.C., MAVERICK FUND USA, LTD., MAVERICK FUND II, LTD., MAVERICK NEUTRAL FUND, LTD., MAVERICK NEUTRAL LEVERED FUND, LTD., MAVERICK LONG FUND, LTD., and MAVERICK LONG ENHANCED FUND, LTD., Plaintiffs, v. LENDER PROCESSING SERVICES INC., (n/k/a BLACK KNIGHT INFOSERV, LLC), JEFFREY S. CARBIENER, FRANCIS K. CHAN, BLACK KNIGHT HOLDINGS, INC. (f/k/a BLACK KNIGHT FINANCIAL SERVICES, INC.), SERVICELINK HOLDINGS, LLC (f/k/a BLACK KNIGHT FINANCIAL SERVICES II, LLC), BLACK KNIGHT FINANCIAL SERVICES, LLC, and FIDELITY NATIONAL FINANCIAL, INC., Defendants, Case No. 3:13-CV-1585-J-32LRK. The plaintiffs in the instant case, Maverick Fund, L.D.C., Maverick Fund USA, Ltd., Maverick Fund II, Ltd., Maverick Neutral Fund, Ltd., Maverick Neutral Levered Fund, Ltd., Maverick Long Fund, Ltd., and Maverick Long Enhanced Fund, Ltd. are all private investment funds managed by the same registered investment manager, non-party Maverick Capital, Ltd. Between October 23, 2009 and October 4, 2010, they allegedly purchased millions of shares of a company then known as Lender Processing Services, Inc. According to Maverick, during the period, LPS engaged in a fraudulent scheme to artificially inflate its revenue and stock price by relying on illicit business practices and Maverick was damaged as a result. On November 23, 2010, LPS shareholders filed a class action in the Court alleging violations of federal securities fraud claims under Section 10(b) and Section 20(a) of the Securities Exchange Act of 1934 and SEC Rule 10b-5, 17 C.F.R. Section 240.10b-5, and state law claims for common law fraud, civil RICO under Georgia and Florida law, and negligent misrepresentation under Florida and New York law. After hearing argument from the parties, the Court granted the motion without prejudice to Maverick repleading the complaint. The Court memorialized its ruling in a written order, gave Maverick until September 5, 2014 to file a third amended complaint, and set in place a briefing schedule on any new motion to dismiss. In the motion, the defendants in the now-settled class action had moved to dismiss the case on the grounds that the lead plaintiff had not adequately pleaded (1) that the individual defendants had "made" the allegedly false statements, (2) that the statements were materially false or misleading, (3) a strong inference of scienter on the part of each defendant, and (4) that the class actually sustained a loss as the result of the alleged fraud. In his Order dated September 21, 2015 available at http://is.gd/YkKqpqfrom Leagle.com, Judge Corrigan found most of the defendants' arguments not well-taken, except with respect to scienter. Some but not all of Maverick's claims are due to be dismissed with prejudice, and LPS is due to answer those claims that remain. But what specific allegations in the lengthy Third Amended Complaint remain to answer is unclear. The Court directed Maverick to replead its complaint to include only those allegations not foreclosed by the Order on or before October 30, 2015 and LPS to file its answer to the fourth amended complaint on or before December 3, 2015. Plaintiffs are represented by David A. Thorpe, Esq. -- david@dstlegal.com & Matthew P. Siben, Esq. -- matthew@dstlegal.com -- DIETRICH SIBEN THORPE LLP -- and -- Stephen E. Walker, Esq. BURMAN, CRITTON, LUTTIER & COLEMAN, LLP 303 Banyan Blvd #400, West Palm Beach, FL 33401 Tel: (561)842-2820 Defendants are represented by Charles P. Pillans, III, Esq. - cpp@bedellfirm.com -- BEDELL, DITTMAR, DEVAULT, PILLANS & COXE, PA, George E. Anhang, Esq. -- ganhang@cooley.com & Lyle Roberts, Esq. -- lroberts@cooley.com -- COOLEY, LLP NAVY FEDERAL: "Munday" Suit Alleges TCPA Violation -------------------------------------------------- Ronald Munday, and all others similarly situated v. Navy Federal Credit Union, Case No. 8:15-cv-01629 (C.D. Calif., October 9, 2015), seeks damages, injunctive relief and declaratory relief against the Defendant for violation of the Telephone Consumer Protection Act. The Defendant is a credit union located in Vienna, Virginia. The Plaintiff is represented by: Trinette G. Kent, Esq. LEMBERG LAW, LLC 10645 North Tatum Blvd., Suite 200-192 Phoenix, AZ 85028 Tel: (480) 247-9644 Fax: (480) 717-4781 E-mail: tkent@lemberglaw.com NBC: Faces Antitrust Class Action Over NFL TV Rights ---------------------------------------------------- Dominic Patten, writing for Deadline.com, reports that legal actions against the NFL over anticompetitive practices have been piling up of late like a 1-yard fight on any given Sunday. Now there's a new player on the field with a sprawling new antitrust class action lawsuit filed against not just every single team in the NFL and Sunday Ticket package provider DirecTV but also NBC, CBS, Fox and ESPN. "The 32 professional football teams that compete in the National Football League ('NFL') have agreed among themselves to eliminate all competition in the broadcasting and sale of live video presentations of professional football games," says the October 16 jury-seeking complaint filed by lawyers for New York City's Bounce Sporting Club, other establishments, and Oakland resident Jonathan Frantz. "The AT&T DirecTVTeams have agreed not to avail themselves of cable, satellite, or Internet distribution channels individually," the 40-page injunction-seeking filing in federal court adds. "On information and belief, DirecTV's contracts with the NFL include clauses mandating that the NFL and its Teams retain that anticompetitive scheme," it also says of the weekly package the satellite provider offers for more than $350 a season to individual fans. And if you wonder why bars like Bounce are taking on the NFL, DirecTV and the nets: "Limited to only one source for the football programming that many of their customers demand, commercial establishments pay anywhere from $1,458 a year to more than $120,000 a year--as much as ten times more than they pay for other sports packages." Which means, like the upcoming January trial Major League Baseball is facing over similar accusations -- and in which some of the attorneys in this matter are also participating -- the NFL could find itself facing potentially millions of class members if this case gets its desired certification. As for the broadcasters? A shattering of the current system could see not only Sunday Ticket lose its grip but the approximately $6 billion annually networks pay to the NFL to show games on Sunday Night Football, Monday Night Football and Thursday Night Football move to a whole new more individualized and undoubtedly digital landscape -- one where they potentially could not command the big ad bucks they presently receive. "The Teams have all forgone this option in favor of creating a more lucrative monopoly. The Teams have agreed to make an offering called 'NFL Sunday Ticket' ('Sunday Ticket') the only way to view games other than the limited selection of games broadcast through sponsored telecasts, in any given area," notes the new complaint regarding the rigid delivery and deals now in place. "In addition to allowing Defendants to charge supracompetitive prices for Sunday Ticket, this scheme protects the five networks that currently contract with the NFL to broadcast regular season NFL games: the cable channels ESPN and NFL Network, and the terrestrial networks CBS, NBC, and Fox (collectively, the "Network Defendants")," the filing notes. "By limiting the availability of competing products, the agreements drive up the market share and value of the Network Defendants' broadcasts." The nets had no response to the Oct. 16 filing, which is now in front of Judge Alison Nathan, who oversaw the now close to settled The Wendy Williams Show and Lionsgate intern lawsuit. Jeffrey Dubner -- jdubner@cohenmilstein.com -- Richard Koffman and Daniel Rehns -- drehns@cohenmilstein.com -- of NYC's Cohen Milstein; and Howard Langer, Edward Diver as well as Peter Leckman of Langer Grogan -- iackelsberg@langergrogan.com -- and Mr. Diver represent the plaintiffs in this case. NEVADA PROPERTY 1: Awaits Approval of Class Action Settlement ------------------------------------------------------------- Nevada Property 1 LLC is waiting for preliminary approval by the court of the settlement in a wage and hour action, the Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 7, 2015, for the quarterly period ended June 30, 2015. During late 2012, the Company was put on notice and/or served with two separate purported class action lawsuits related to alleged unpaid compensation for time incurred by CoStars while on Property for donning and doffing of the CoStars' required uniform, alleged improper rounding of time for hours worked and various other claims related to alleged unpaid compensation. One of the purported wage and hour class action lawsuits is pending in the Eighth Judicial District Court for Clark County, Nevada ("Nevada State Court"), and one is pending in the U.S. District Court for the District of Nevada. In early April 2015, the Company commenced arms-length settlement negotiations leading to an agreement in principle to resolve both the Nevada State Court and the U.S. District Court lawsuits. The proposed resolution includes an anticipated total net payment of approximately $7.0 million inclusive of the opposing counsel fees and all costs of administering the settlement. After such expenses are paid, the remaining amount will comprise a settlement fund. Of this amount the Company will pay out only that portion actually claimed by putative class members. The proposed settlement is subject to approval by the courts. The Company recorded the $7.0 million anticipated net settlement amount in the consolidated financial statements during the period ended March 31, 2015. As of June 30, 2015, a settlement agreement is in place. Agreement documents were presented on July 16, 2015 and the Company is waiting for preliminary approval by the court. NEVADA PROPERTY 1: Deal in Wire Tap Case Under Consideration ------------------------------------------------------------ Nevada Property 1 LLC said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 7, 2015, for the quarterly period ended June 30, 2015, that the settlement in the case related to alleged unlawful taping/recording is presently under consideration by the Court. In September 2012, a purported class action lawsuit against the Company was filed in the Superior Court of the State of California, claiming violation of the California Penal Code regarding the alleged unlawful taping or recording of telephone calls to and from the Company. On August 31, 2012, the Company removed the case to the United States District Court for the Southern District of California. Subsequently, the Company filed a motion to dismiss, or in the alternative, to strike the class allegations. On July 15, 2013, the U.S. District Court issued an order denying these motions. The Company continues to deny all liability to the putative class members but, at a mediation held on February 20, 2015, the Company agreed to settle all of the claims against it in this matter for a total payment of $14.5 million recorded in the period ended December 31, 2014. The amount is inclusive of all attorneys' fees to the putative class counsel and all costs of administering the settlement. The Company, the plaintiff and the putative class counsel have reached a settlement agreement and presented their settlement agreement for preliminary approval by the U.S. District Court on May 8, 2015. The matter is presently under consideration by the Court. If the settlement agreement is preliminarily approved, the Court will schedule a final fairness hearing to determine whether the settlement is fair, reasonable and adequate and whether judgment should be entered. NISKA GAS: Plaintiffs to Seek Consolidation of Class Action ----------------------------------------------------------- Niska Gas Storage Partners LLC said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 7, 2015, for the quarterly period ended June 30, 2015, that the Defendants' date to answer, move to dismiss, or otherwise respond to the class action litigation has not yet been set as Plaintiffs' counsel has advised that Plaintiffs will be moving to consolidate the Litigation into one action. Between June 26 and July 2, 2015, alleged unitholders of Niska Gas Storage Partners LLC (the "Plaintiffs") filed four class action lawsuits against Niska Gas Storage Partners LLC, Niska Gas Storage Management LLC ("ManagementCo"), Niska Sponsor Holdings Co”peratief U.A. ("Swan Sponsor") (collectively "Niska"), Brookfield Infrastructure Partners L.P. ("Brookfield"), Swan Holdings LP ("Parent"), Swan Merger Sub LLC ("Merger Sub"), and the members of Niska's board of directors (collectively with Niska, the "Defendants") in the Court of Chancery of the State of Delaware. These lawsuits are styled (a) Eddie Barringer vs. Niska Gas Storage Partners LLC, et al. (Case No. 11210); (b) David Raul vs. Niska Gas Storage Partners LLC, et al. (Case No. 11220); (c) Nathan Peterson vs. Niska Gas Storage Partners LLC, et al., (Case No. 11234); and (d) Fred Pappey vs. William H. Shea, Jr. et al., (Case No. 11238) (collectively, the "Litigation"). The Plaintiffs allege causes of action challenging aspects of the proposed acquisition of Niska Gas Storage Partners LLC by Brookfield Infrastructure Partners L.P. and its institutional partners (the "Brookfield Merger"), including that Niska's board of directors breached their alleged fiduciary duties to Niska's unitholders and that Niska and Brookfield aided and abetted the board of director's breaches of alleged fiduciary duties. In general, the Plaintiffs allege the Brookfield Merger (a) provides inadequate consideration to Niska unitholders; (b) contains contractual terms (e.g. the no-solicitation, information rights, matching rights, and termination fee provisions) that dissuade other potential merger partners from making competing proposals; and (c) is not subject to a "majority of the minority" voting requirement. Based on these allegations, the Plaintiffs request relief enjoining Niska from proceeding with or consummating the Brookfield Merger. To the extent that the Brookfield Merger is consummated before injunctive relief is granted, the Plaintiffs seek to have the Brookfield Merger rescinded. Plaintiffs also seek damages and experts' and attorneys' fees. The Defendants' date to answer, move to dismiss, or otherwise respond to the Litigation has not yet been set as Plaintiffs' counsel has advised that Plaintiffs will be moving to consolidate the Litigation into one action and file a consolidated amended complaint. At that point, the parties will negotiate a schedule for Defendants to answer, move to dismiss, or otherwise respond. The Defendants believe the Litigation is without merit and intend to vigorously defend against it. O'FALLON, MO: May Face Class Action Over Towing Fees ---------------------------------------------------- Elizabeth Donald, writing for Belleville News-Democrat, reports that a decision by the Illinois Supreme Court paves the way for a class-action suit against multiple metro-east cities that have been charging administrative towing fees, some of them reaching $500 or more. Earlier this year, Edwardsville attorney Brian Polinske filed individual lawsuits against six metro-east cities alleging that they are requiring unreasonable fees from people whose cars are towed after an arrest. Suits were filed against O'Fallon and Fairview Heights in St. Clair County and against Alton, Collinsville, Edwardsville and Granite City in Madison County. But after multiple legal challenges, those suits may now be going forward. Recently, the Supreme Court declined to hear an appeal of a lower court ruling, sending the suits back to Madison County for trial. When a defendant is arrested -- sometimes for minor infractions like driving on a revoked license, other times for more serious violations such as driving under the influence -- the car is often towed away. In addition to the court fines and fees, the defendant must pay for the tow, and for the impound fee charged for storing the car. But before that can happen, he or she has to get a receipt from City Hall stating that he's cleared to get his car back. In some cities, that's an expensive receipt. These so-called tow redemption fees in the metro-east range from $100 for minor offenses up to $500 or more for more serious offenses. The statute says that cities may charge a reasonable fee to recoup their administrative expenses. But Mr. Polinske maintains that $500 is not a reasonable fee for issuing a receipt. "They are not going to be able to justify their costs," Mr. Polinske said. "The statute reads 'reasonable fee.' Presumably that means they can't overbill." The lawsuits were filed in December 2011 with multiple plaintiffs, alleging that the fees are excessive and violate due process of law. Among the plaintiffs was Allan Lewis of Edwardsville, who was arrested on May 20, 2011. The suit alleged that in addition to his court fines, tow and storage fees, he had to pay another $300 fee to the city of Edwardsville for the receipt that allowed him to get his car back. Another plaintiff, Rogelio Saladrigas of Mascoutah, was charged with driving under the influence of alcohol in October 2011 and was sentenced to a $3,000 fine, 100 hours of community service and completion of an alcohol abuse treatment program. Mr. Saladrigas joined the lawsuit against O'Fallon regarding the $500 fee he had to pay to get his car back. The lawsuits were dismissed in 2012, amended and resubmitted, then dismissed again in October 2013. Mr. Polinske appealed to the 5th District Appellate Court in Mount Vernon, which reversed the lower court's decision and sent the suits back to Madison County. Collinsville appealed to the Illinois Supreme Court. But on Sept. 30, the high court declined to hear the case. That effectively affirms the appellate court decision. Steve Giacoletto, attorney for Collinsville, said they intend to continue defending the city as they did before, and declined further comment. Mr. Polinske said eventually he will file to combine the suits into one class-action suit. First, he said, they will go forward with discovery motions. He did not anticipate quick settlements. "We're going to get ready for trial," he said. In the last three fiscal years, the cities in question have received anywhere from $250,000 to half a million dollars in tow reception fees. In Edwardsville, accurate records were not kept until 2013. In late 2012, then-police chief James Bedell was found to be embezzling money garnered from the vehicle tow release fees. Often paid in cash, Mr. Bedell stole nearly $140,000 over three years to support a gambling habit and was sentenced to 18 months in federal prison. A line item of $93,640 for impound fees is part of Collinsville's 2015 city budget. Belleville's fiscal 2016 budget anticipates $165,000 from vehicle tow release fees, up from $150,00 budgeted the year before, and Granite City has budgeted $75,000. In their pleadings, the cities maintained that the man-hours required to process the paperwork for these crimes justify the fees. Earlier Edwardsville Police Chief Jay Keeven said he considers is a "user fee." "If you don't want to pay the fee, don't drive drunk," he said. Alton Mayor Brant Walker agreed. "You have the right to choose not to commit a felony," Walker said. But Mr. Polinske said the cities already receive a $500 law enforcement fee paid by everyone who pleads guilty to DUI, plus federal and state grants for DUI enforcement costs. PORTFOLIO RECOVERY: Court Denies Motion in FDCPA Class Action ------------------------------------------------------------- Stephanie Eidelman, writing for insideARm, reports that a class action against Portfolio Recovery Associates (PRA) was certified on February 5th of this year by Plaintiffs Nicola Magee and James Peterson for violations of the Fair Debt Collection Practices Act (FDCPA), and included approximately 400,000 people. Specifically, Magee and Peterson allege that PRA sent letters demanding payment of time-barred debt without disclosing that the debt was time- barred, and threatened to credit report the debt after a time that the debt could no longer be reported. During the process of discovery, Plaintiffs learned that PRA had since modified and sent new notices to those affected, clarifying that the debt at issue is time-barred. As a result, the Plaintiffs have since filed a Motion to modify the class definitions to include only those who actually paid in response to the collection letters, those who have not received a subsequent letter from PRA informing them that the debt is time- barred or no longer can be reported on their credit report, and those who have filed a lawsuit. PRA filed a Motion to oppose the modification, as well as a Motion to Decertify the Classes. On October 8, 2015 the U.S. District Court for the Northern District of Illinois granted Plaintiffs' Motion and denied PRA's Motion. PRA offered several arguments to support their opposing Motion, all of which were rejected by the Court: They argued that the class should be decertified because the potential monetary would be de minimis. The Plaintiffs argued, however, that the modification would increase the amount paid to each member [of the smaller group], which counters this claim. They suggested that Plaintiff's counsel is inadequate, as they are attempting to "abandon" class members. Plaintiffs argued that the revised notice itself represents the most substantial part of the relief they would likely receive if they remained in the class, therefore those original class members have indeed been well- served. They argued that changing the class definition would injure both PRA and potential class members, as the modification would impact the FDCPA claims of any member removed from the class. PRA noted that the Plaintiffs' claim stopped the statute of limitation period for three years; an amended complaint instead of a motion to modify the class would have caused more of the claimants' debts to now be time-barred. The Court rejected this argument, claiming that PRA offered insufficient explanation. They argued that narrowing the class to those who made a payment as a result of an allegedly deceptive letter would require an individualized determination for each person's motives. In other words, it's unclear whether they made payment because they were deceived, or because of other reasons. Citing two previous cases, the Court held that "the fact that damages are not identical across all class members should not preclude class certification," and "the need for individual damages determinations at [a] later stage of the litigation does not itself justify the denial of class certification." PRO'S SPORTSBAR: Faces Suit in Ill. Over Alleged Labor Law Breach ----------------------------------------------------------------- Veronica Thomas, Cynthia Williams, and Sydney Doyal, individually and on behalf of others similarly situated, Case No. 15-cv-8945, v. Pro's Sportsbar And Grill, Inc. and Tharon Bradley, Case: 1:15- cv-08945 (N.D.Ill., October 8, 2015), seeks to recover unpaid wages, interest, statutory penalties, liquidated damages, and attorneys' fees and costs under the Fair Labor Standards Act, the Illinois Minimum Wage Law, and the Illinois Wage Payment and Collection Act. Pro's operated a restaurant and bar located at 18601 S. Cicero Avenue, Country Club Hills, Illinois, 60478. Pro's has conducted business in its own name and in the name of BR Steak Bar and Steakhouse. The Plaintiffs are represented by: Matthew J. Piers, Esq. Christopher J. Wilmes, Esq. HUGHES SOCOL PIERS RESNICK &DYM, LTD. 70 W. Madison St., Suite 4000 Chicago, IL 60602 Phone: (312) 580-0100 REVANCE THERAPEUTICS: Faces Warren Police Class Action ------------------------------------------------------ Revance Therapeutics, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 7, 2015, for the quarterly period ended June 30, 2015, that as of May 2015, the Company became subject to a legal complaint, captioned City of Warren Police and Fire Retirement System v. Revance Therapeutics Inc., et al, CIV 533635, which was filed on behalf of City of Warren Police and Fire Retirement System in the Superior Court for San Mateo County, California against the Company and certain of its directors and executive officers at the time of the follow-on public offering, and the investment banking firms that acted as the underwriters in the follow-on public offering. In general, the complaint alleges that the defendants misrepresented the then-present status of the RT001 clinical program and made false and misleading statements regarding the formulation, manufacturing and efficacy of its drug candidate, RT001, for the treatment of lateral canthal lines at the time of the follow-on public offering. The complaint has been brought as a purported class action on behalf of those who purchased common stock in the follow-on public offering and seeks unspecified monetary damages and other relief. The Company accrues a liability for such matters when it is probable that future expenditures will be made and such expenditures can be reasonably estimated. At this time, neither the outcome of this matter, nor an estimate of the maximum potential exposure or the range of possible loss can be determined. The Company believes that the class action lawsuit is without merit and intends to vigorously defend the action. Nevertheless, this litigation, as any other litigation, is subject to uncertainty and there can be no assurance that this litigation will not have a material adverse effect on the Company's business, results of operations, financial position or cash flows. RJ REYNOLDS: Faces Class Action Over Use of Nicotine in Vaping -------------------------------------------------------------- Chriss W. Street, writing for Breitbart, reports that looking to form class action lawsuits under California's Proposition 65, nominal plaintiff Jerod Harris filed a federal complaint against R.J. Reynolds Vapor Co. claiming he didn't know vaping uses nicotine. Battery-powered vaporizers, known as e-cigs, simulate the feeling of smoking without tobacco combustion. Their use is commonly referred to as "vaping." Since its patenting by a Chinese pharmacist named Hon Lik, the use of a high-frequency piezoelectric ultrasound-emitting element combined with a pressurized jet of liquid containing nicotine has ignited a major boom. Vaping's inventor developed the device to end lung cancer, emphysema and other deadly side effects of traditional smoking. The boom really took off after a federal court in 2010 overturned a U.S. Food and Drug Administration (FDA) 2009 decision to regulate e-cigs like cigarettes. Since 2013, the number of vape stores has jumped from 3,500 to 35,000. RJR's "Vuse" is now America's most popular e-cigarette, with about $400 million in sales. Cigarettes were once a spectacularly good business for retailers, such as convenience stores. According to the Association for Convenience and Petroleum Retailing, cigarettes accounted for nearly 36 percent of the sales revenue in convenience stores in their peak year of 2009. Average cigarette revenue per store was $576,354 with an 18 percent gross profit of $89,923. In the last 6 years, cigarette smoking has declined. But that is chump change compared to profits in the vape business. Most accessories and vape products have a markup of between 200 and 400 percent. Some electronic pens cost $250. With total sales up from $1 billion in 2013 to $2.5 billion in 2014, some stores are bringing in $1.3 million a year. Doctors state that vaporizers are safer than 7,000 chemicals in cigarette smoking, but there haven't been any long-term studies to suggest what years of vaping will do to a body. The good news is that cigarette smoking has fallen by 18 percent, according to the Centers for Disease Control and Prevention (CDC). But e-cigs and vape pipes usually use-candy type flavorings, which are extremely attractive to teenagers, to deliver nicotine. The combination of a booming industry, lack of information, concerns about long-term effects on youth, and Reynolds Vapor Co. as a deep pocket was bound to cause enterprising mass tort lawyers to sue under California's Safe Drinking Water and Toxic Enforcement Act of 1986, known as Prop 65. The initiative was supposedly intended by its authors to protect California citizens and the State's drinking water sources from chemicals known to cause cancer, birth defects or other reproductive harm, and by requiring companies to disclose to citizens what the effect of the exposures to such chemicals would be. But it was funded by mass tort lawyers. PepsiCo was forced into a big settlement on September 15 under Prop 65 because of its use of the scary sounding 4-Methylimidazole for its distinct caramel coloring. Despite the U.S. Food and Drug Administration and its Canadian and the European Union counterparts saying the chemical poses no risk to human health for ingestion of up to 1,000 cans of soda a day, California listed 4- mei as a "known carcinogen" under its chemical labeling law. Pepsi agreed to pay $385,000 to settle claims in Center for Environmental. Health v. Pepsi Beverages Co., No. 14711020, admitting that its products contain levels of 4-methylimidazole (4-MEI) that exceed the limits imposed by the Safe Drinking Water and Toxic Enforcement Act of 1986. The settlement paves the way for parties to a proposed class action lawsuit alleging similar facts titled, No. 178953 to stay proceedings until December 14, 2015, pending settlement discussions. The monetary numbers in that case are expected to be huge. The beauty of Prop 65, from a mass tort lawyer's point of view, is that the law puts the onus on businesses to label their products as carcinogens if rats given very large doses of a chemical develop any cancerous tumors. Just six days after just days after California's Health Department on January 28 declared e-cigarettes are a public health threat, the Oakland, CA nonprofit health watchdog Center for Environmental Health (CEH) filed a complaint on February 5, 2015 against 19 companies that sell e-cigarettes and/or e-liquids without consumer warnings, as required under Prop 65. CEH claims that the products expose users to nicotine, a chemical known to pose serious reproductive health hazards, and thus must carry warnings. The named defendants are:: E-liquids Ballistic Vape Inc.; Ballistic Vape TruNic USA Liquid Nicotine in Praline Dream Steam Distribution; Ballistic Vape TruNic USA Liquid Nicotine in Praline Dream Beard Vape Co; Beard Vape Co.Juice No. 5 Bodyrock Products; Hard Cocktails E-Liquid in Angel's Share The Daily Vapes; The Daily Vapes Juice in Bake Sales Exquisite E Liquid; Exquisite E-Liquid in Nature's Harvest Five Pawns; Signature Vapor Liquid Mixology Edition in Perpetual Check Joyetech/Shenzhen Joyetech; Joyetech Cigar E-Liquid Limitless Trading Co; Drip E-Liquid in Guava Nectar Nicopure Labs; EVO E-Liquid Evolved in Maraschino Tenacious 7 Vapor; Tenacious 7 E-Juice in Peach Fuzz Throttle Vapor; Throttle Vapor E-Juice in Slow Ride USVC, Inc.; Organic Premium Vape Juice in Nutty Chocolate The Vape Kitchen; Epicurean E-Liquid in Thai Mango Sticky Rice Vaporall; E-Liquid in Lusty Lychee E-cigarettes and/or vaping kits PHD Marketing; Xhale X MC Vapor Pen in Green S & E Distributor; Tsunami Disposable E-Cigarette Smoke Tokes; Green Man CE Series Vaporizer Vapor Exotica; V-Exotica Vapor Pen ROCKET FUEL: Defendants Moved to Dismiss Securities Litigation -------------------------------------------------------------- Rocket Fuel Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 7, 2015, for the quarterly period ended June 30, 2015, that the defendants have moved to dismiss the Securities Litigation. On September 3, 2014 and September 10, 2014, respectively, two purported class actions were filed in the Northern District of California against the Company and certain of its officers and directors. The actions are Shah v. Rocket Fuel Inc., et al., Case No. 4:14-cv-03998, and Mehrotra v. Rocket Fuel Inc., et al., Case No. 4:14-cv-04114. The underwriters in the Company's initial public offering on September 19, 2013 (the "IPO") and its secondary offering on February 5, 2013 (the "Secondary Offering") are also named as defendants. These actions were consolidated and a consolidated complaint, In re Rocket Fuel Securities Litigation, was filed on February 27, 2015. The consolidated complaint alleges that the defendants made false and misleading statements about the ability of the Company's technology to detect and eliminate fraudulent web traffic, and about Rocket Fuel's future prospects. The consolidated complaint also alleges that the Company's registration statements and prospectuses for the IPO and the Secondary Offering contained false and misleading statements on these topics. The consolidated complaint purports to assert claims for violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended, and SEC Rule 10b-5, and for violations of Sections 11 and 15 of the Securities Act of 1933, as amended (the "Securities Act"), on behalf of those who purchased the Company's common stock between September 20, 2013 and August 5, 2014, inclusive, as well as those who purchased stock in its initial public offering on September 19, 2013, and a claim for violation of Section 12(a)(2) of the Securities Act in connection with the Secondary Offering. The consolidated complaint seeks monetary damages in an unspecified amount. All defendants moved to dismiss the consolidated complaint on April 13, 2015. The Company intends to vigorously defend itself against this purported class action. SAMARI LAKE: Faces "Mera" Suit Alleging FLSA Violations ------------------------------------------------------- Agner Mera a/k/a "Narra" and all others similarly situated under 29 U.S.C. 216(b) v. Samari Lake East Condominium Association, Inc., Florida's Property Management Group Corp., Sunshine Management Services, LLC, Rosendo Hernandez, Case 1:15-cv-23774- MGC (S.D.Fla., October 8 2015), was filed under the Fair Labor Standards Act. The Plaintiff is represented by: J.H. Zidell, Esq. J.H. ZIDELL, P.A. 300 71st Street, Suite 605 Miami Beach, FL 33141 Phone: (305) 865-6766 Fax: (305) 865-7167 E-mail:zabogado@aol.com TAKATA CORP: Faces "Snyder's" Suit Over Defective Airbags --------------------------------------------------------- Snyder's Ltd., individually and on behalf of all others similarly situated v. Takata Corporation, TK Holdings, Inc., Honda Motor CO., LTD., American Honda Motor Co., Inc., Bayerische Motoren Werke AG, Bmw Of North America, LLC, Bmw Manufacturing CO., LLC, Ford Motor Company, Toyota Motor Corporation, Toyota Motor Sales, U.S.A., Inc., And Toyota Motor Engineering & Manufacturing North America, Inc., Mazda Motor Corporation, Mazda Motor Of America, Inc., Mitsubishi Motors Corp., Mitsubishi Motors North America, Inc., Nissan Motor Co., LTD., Nissan North America, Inc., Fuji Heavy Industries, LTD., Subaru Of America, Inc., Case 5:15-cv- 00875-OLG (W.D.Tex., October 8, 2015), concerns alleged defective airbags manufactured by Defendant Takata Corporation and its related entities, and equipped in vehicles manufactured by Honda, BMW, Ford, Mazda, Mitsubishi, Nissan, Subaru, and Toyota, and their related entities, and in vehicles manufactured by Chrysler and General Motors. Defendant Takata is a foreign for-profit corporation with its principal place of business in Tokyo, Japan. Takata is a specialized supplier of automotive safety systems that designs, manufactures, tests, markets, distributes, and sells airbags. The Plaintiff is represented by: Stephen N. Zack, Esq. Mark J. Heise, Esq. James Lee, Esq. Tyler Ulrich, Esq. STUCKY & FIELDS LLC 100 SE Second Street, Suite 2800 Miami, FL 33131 Phone: (305) 539-8400 Fax: (305) 539-1307 E-mail: szack@bsfllp.com mheise@bsfllp.com jlee@bsfllp.com tulrich@bsfllp.corm - and - R. Bryant McCulley, Esq. Stuart H. McCluer, Esq. Frank Ulmer, Esq. MCCULLEY MCCLUER PLLC 12022 Carolina Boulevard, Suite 300 P.O. Box 505 Charleston, SC 29451 Phone: (205) 238-6757 Fax: (904) 239-5388 E-mail: bmcculley@mcculleymccluer.com srnccluer@mccul1eymcc1uer.com fulmer@mcculleymccluer.com - and - Christopher J. Stucky, Esq. Benjamin C. Fields, Esq. STUCKY & FIELDS LLC 214W. 18th St., Suite 200 Kansas City, MO 64108 Phone: (816) 659-9970 Fax: (816) 659-9969 E-mail: chris@2stuckyfields.com ben@stuckyfields.com STERNE AGEE: Settles Two Class Actions Over Botched IPO ------------------------------------------------------- Michael Schwartz, writing for Richmond BizSense, reports that a $2 million check and a bankruptcy creditor's claim for potentially millions more are helping bring a resolution to lingering disputes over the remains of a Richmond financial firm. A pair of settlements has been reached in two lawsuits tied to the now bankrupt shell of Anderson & Strudwick, a longtime downtown investment banking firm that was acquired by an out-of-town buyer in 2011. In one settlement, Sterne Agee, an Alabama-based investment firm that purchased the bulk of A&S' assets four years ago, agreed to pay $2.25 million to resolve a dispute with the bankruptcy trustee over whether Sterne should be on the hook for the debts and liabilities of A&S. Much of those liabilities stemmed from class- action lawsuits filed over an apparently botched IPO of a Chinese drug company that A&S was involved in in 2011. The second settlement would set a cap of $14 million on the amount of debt claims that could be made by a group of disgruntled shareholders from that Chinese IPO for Tibet Pharmaceuticals. A&S served as the underwriter in the IPO and allegedly helped disseminate untruthful prospectuses to investors. That $14 million figure would be included on the list of claims from A&S' unsecured creditors. While collecting on that full amount is unlikely, Tibet shareholders will receive the bulk of any assets recovered down the road by the trustee. The bankruptcy of the leftover shell of A&S goes back to May 2014, when a former A&S executive petitioned to push the surviving post- Sterne-acquisition entity into an involuntary bankruptcy. The case was confirmed that June, and a Chapter 7 trustee was appointed to search for other assets and debts. The bulk of the initial assets was the $1 million that was apparently set aside in escrow as part of the deal with Sterne Agee. The potential debts were eventually found to be around $22 million, thanks to possible damages from the pending class-action cases, which were eventually rolled into one case. A judge then ruled that Sterne could potentially have to cover some of those liabilities as a "successor-in-liability," because it bought A&S and thereby bought its obligations. Complicating the matter was the fact that Sterne was itself in the midst of being acquired by St. Louis-based Stifel. That deal closed this June to the tune of $150 million. Ultimately, a federal bankruptcy judge in Richmond approved the two settlements, ruling that they are in the best interest of the A&S estate and its creditors. The $2.25 million that Sterne agreed to pay is contingent upon confirmation of the class-action settlement, which is expected likely early next year after efforts to notify shareholders are completed and a fairness hearing is held in federal court. That $2.25 million will eventually be paid into the bankruptcy estate to be divvied out to creditors. The other settlement also prohibits the Tibet shareholders from further filing suits against Sterne Agee. The trustee in the case is Bruce Robinson. He is represented by LeClairRyan attorneys Vernon Inge -- vernon.inge@leclairryan.com -- and Corey Simpson Booker -- corey.booker@leclairryan.com Commenting on news of the settlements, Mr. Inge said: "While no settlement leaves the parties completely happy, the trustee believes that these settlements are good for the estate because they should get some funds to creditors without the big risk of the case being insolvent." SUBWAY: Settles Class Action Over Footlong Sandwiches ----------------------------------------------------- Jonathan Maze, writing for Nation's Restaurant News, reports that Subway will work more diligently to make sure its Footlong subs are actually a foot long, according to a settlement proposal announced on Oct. 19 between the Milford, Conn.-based sandwich giant and customers who felt cheated out of an inch of bun. The company, which has been working on a settlement over the lawsuits for two years, said in a release on Oct. 19 that it has agreed to certain practice changes and to pay attorneys' fees and awards to plaintiffs. According to court documents, the settlement deal includes requirements that franchisees measure bread to ensure that Footlong and 6-inch subs are the correct length. The company also agreed to other enforcement and quality control measures to ensure that operators are complying with the rules. Attorneys' fees could be up to $525,000 in the case, and plaintiffs could seek up to $1,000 in incentive awards. The lawsuit dates back more than two years, when an Australian teenager posted on Subway Australia's Facebook page a picture of a Footlong sub with a tape measure showing the sandwich to be 11 inches. The post went viral, and Subway quickly apologized and vowed to work on operations to ensure consistency. Still, attorneys began swirling. Numerous plaintiffs from various courts filed lawsuits in state and federal courts in 2013. The cases were consolidated into one class-action lawsuit in a Wisconsin federal court that year, and the two sides began mediating a settlement. Some settlement terms were first reached 18 months ago, but attorneys spent months arguing over fees and payments to class representatives. The deal was signed in September, however, and a judge gave preliminary approval on Oct. 2. A hearing for final approval has been set for January. T-MOBILE US: Faces "Leitner" Suit Over Postpaid Services -------------------------------------------------------- Jennifer Leitner, on behalf of herself, and others similarly situated, v. Experian Information Solutions, Inc. and T-Mobile US, Inc.,; and DOES 1 through 100, inclusive, Case 8:15-cv-01620-JLS- KES (C.D., Cal., October 8, 2015), was filed on behalf of herself and all other similarly situated individuals who applied for T- Mobile US, Inc. postpaid services or device financing between September 1, 2013, and September 16, 2015. The suit alleges willful violation of (1) The Fair Credit Reporting Act ("FCRA") 2. negligent violation of the Fair Credit Reporting Act 3. Violation of the California Data Breach Act 4. Violation of the Illinois Consumer Fraud Act 5. breach of contract 6. Breach of implied contract 7. Negligence 8. Bailment 9. Violation of Business & Professions Code. T-Mobile is a mobile cellular and data provider in the United States with over 56.8 million subscribers as of March 31, 2015. The Plaintiff is represented by: Gillian L. Wade, Esq. Sara D. Avila, Esq. MILSTEIN ADELMAN LLP 2800 Donald Douglas Loop North Santa Monica, CA 90405 Phone: (310) 396-9600 Fax: (310) 396-9635 E-mail: gwade@milsteinadelman.com savila@milsteinadelman.com - and - Daniel O. Herrera, Esq. CAFFERTY CLOBES MERIWETHER & SPRENGEL LLP 30 North LaSalle Street Suite 3200 Chicago, IL 60602 Phone: (312) 782-4880 Fax: (312) 782-7785 E-mail: dherrera@caffertyclobes.com - and - Bryan L. Clobes, Esq. Kelly Tucker, Esq. CAFFERTY CLOBES MERIWETHER & SPRENGEL LLP 1101 Market Street Philadelphia, PA 19107 Phone: (215) 864-2800 Fax: (215) 864-2810 E-mail: bclobes@caffertyclobes.com ktucker@caffertyclobes.com UBER TECHNOLOGIES: Faces Suit for Alleged Underpayment of Drivers ----------------------------------------------------------------- Paul Tovmassian, Mercurios Hanna and Morad Hanna, individuals, on behalf of themselves and all others similarly situated, Plaintiffs v. Uber Technologies, Inc., and Does 1 through 20, inclusive, BC 597341 (Cal. Super., Oct. 9, 2015) seeks monetary damages and restitution arising out Defendants' alleged unfair practices regarding underpayment and excessive charges to drivers. The company has developed, markets and operates the Uber Mobile App, which allows consumers with smart phones to submit a trip request which is then routed to Uber drivers who use their own cars. The Plaintiffs are represented by: Andre E. Jardini, Esq. K.L. Myles, Esq. KNAPP, PETERSEN & CLARKE 550 North Brand Boulevard, Suite 1500 Glendale, CA 91203-1922 Phone: (818)547-5000 Fax: (818)547-5329 E-mail: aej@kpclegal.com klm@kpclegal.com - and - Joseph S. Farzam, Esq. JOSEPH FARZAM LAW FIRM 11766 Wilshire Blvd., Suite 280 Los Angeles, CA 90025 Phone: (310) 226-6890 Fax: (310) 226-6891 E-mail: joseph@farzamlaw.com UBER: Judge Dismisses Driver's Data Breach Class Action ------------------------------------------------------- Dan Levine, writing for Reuters, reports that a U.S. judge dismissed a proposed class action lawsuit filed by an Uber driver against the ride service over a data breach disclosed by the company, according to a ruling on Oct. 19. In February, Uber revealed that as many as 50,000 of its drivers' names and license numbers had been improperly downloaded. One driver, Sasha Antman, sued Uber alleging poor network security. U.S. Magistrate Judge Laurel Beeler in San Francisco ruled that Antman had not plausibly alleged that Uber's conduct surrounding the data breach caused injury. Judge Beeler gave Antman's attorneys 28 days to file an amended lawsuit to try to establish legal standing. WILLBROS GROUP: Dismissal of Restatement Class Action Sought ------------------------------------------------------------ Willbros Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 7, 2015, for the quarterly period ended June 30, 2015, that the Company has filed a motion to dismiss the case related to the Company's October 21, 2014 press release announcing the restatement of condensed consolidated financial statements for the quarterly period ended June 30, 2014. After the Company announced it would be restating its Condensed Consolidated Financial Statements for the quarterly period ended June 30, 2014, a complaint was filed in the United States District Court for the Southern District of Texas on October 28, 2014 seeking class action status on behalf of purchasers of the Company's stock and alleging damages on their behalf arising from the matters that led to the restatement. The original defendants in the case are the Company and its former chief executive officer and current chief financial officer. On January 31, 2015, the court named two employee retirement systems as Lead Plaintiffs. On March 31, 2015, a consolidated complaint was filed in which the current chief executive officer of the Company was added as a defendant. On June 15, 2015, a second amended consolidated complaint was filed. The complaint in the case, now entitled In re Willbros Group, Inc. Securities Litigation, alleges violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended, arising out of the restatements of the Company's first and second quarter 2014 financial statements, its statements regarding debt compliance and liquidity, the decision to shut down the regional business, the delay in filing the 2014 10-K, and the determination that a material weakness existed as of December 31, 2014, and seeks undisclosed damages. On July 27, 2015, the Company filed a motion to dismiss the case. As this matter is at a very early stage, the Company is not able at this time to determine the likelihood of loss, if any, arising from this matter. The Company believes the claims are without merit and intends to defend against them vigorously. VOLKSWAGEN: Center for Auto Safety Files Dirty Diesel Suit ---------------------------------------------------------- James R. Hood, writing for ConsumerAffairs, reports that Volkswagen already faces more than 400 lawsuits filed by U.S. consumers over its use of sophisticated computer software to cheat on emission tests as well as investigations by government agencies, but the latest lawsuit, if successful, may produce results that actually benefit the general public. It was filed on Oct. 19 by the Center for Auto Safety (CAS), a Washington, D.C. non-profit that has been battling the auto industry for 45 years. Unlike the private lawsuits which seek monetary damages for VW and Audi owners, the center's suit seeks action to clean up the damage from VW's actions and ensure the violations are not repeated. Specifically, the lawsuit seeks an injunction ordering VW: -- To remediate the environmental harm caused by VW's emissions relief; -- To appoint an independent organization to monitor VW's compliance with state and federal laws as well as other relief granted in this lawsuit; and -- To order VW to pay a portion of its annual net profits into an independent fund administered by third parties to a non profit organization to offset the environmental damage. "Unprecedented corporate crime" "CAS has sued VW and Audi because they committed an unprecedented corporate crime and fraud on the public that requires injunctive relief to remedy the harm caused by their violations of state and federal environmental and consumer protection laws," said Clarence Ditlow, executive director of the center. "Class actions and government enforcement actions result in headlines, penalties and settlements that do nothing to change underlying corporate behavior or remediate the underlying damage caused by illegal behavior." Mr. Ditlow said other sanctions commonly imposed on automakers also fall short. "The independent monitors and auditors sanctioned by the Justice Department and federal agencies are nothing more than corporate law firms and employees who are all too willing to sign off on the behavior of their employers in documents filled with withheld redactions. When so-called independent funds are set up as was done in the Toyota Unintended Acceleration class action, they go to auto company designed programs that benefit the auto maker, not the consumer," Mr. Ditlow said, vowing that his group will get results. "CAS will use its integrity and skills acquired through 45 years of battling the auto industry to ensure that this litigation will reform VW and Audi once and for all and set a precedent for all other auto companies in the future," Mr. Ditlow said in an email to ConsumerAffairs. VOLKSWAGEN GROUP: Faces "Mutari" Suit Over Fraud Allegations ------------------------------------------------------------ Ellen Mutari, Deborah M. Figart, and all others similarly-situated v. Volkswagen Group of America, Inc., Volkswagen AG, Audi AG, and Audi of America, Inc., Case No. 2:15-cv-07408 (D.N.J., October 9, 2015), seeks compensatory, exemplary, and punitive remedies and damages and statutory penalties, including interest against the Defendants for alleged fraud and violations of the New Jersey Consumer Fraud Act. The Plaintiffs alleges that the Defendants, including Volkswagen AG and Audi AG, and/or their agents designed the Clean Diesel engines and cars, as well as the "defeat device," for distribution in the United States. These same Defendants and/or their agents developed and disseminated the (fraudulent) advertisements, warranties, and promotional materials related to the Clean Diesel cars throughout the United States. Defendant Volkswagen AG is the parent corporation of Defendants Volkswagen Group of America, Inc., Audi AG, and Audi of America, Inc. The Defendants designed, manufactured, imported, and sold vehicles. The Plaintiffs are represented by: Robert A. Magnanini, Esq. STONE & MAGNANINI LLP 100 Connell Drive, Suite 2200 Berkeley Heights, NJ 07922 Tel: (973) 218-1111 Fax: (908) 464-3010 E-mail: rmagnanini@stonemagnalaw.com - and - David Boies, Esq. BOIES, SCHILLER & FLEXNER LLP 333 Main Street Armonk, NY 10504 Tel: (914) 749-8200 Fax: (202) 749-8300 VOLKSWAGEN GROUP: "O'Leary" Suit Alleges Common Law Fraud --------------------------------------------------------- Kathleen O'Leary, and all others similarly-situated v. Volkswagen Group of America, Inc., Case No. 2:15-cv-07377 (D.N.J., October 9, 2015), seeks damages against the Defendant for common law fraud and unjust enrichment. The Plaintiff alleges that Volkswagen has falsely marketed its so- called "clean diesel" vehicles as high performing, fuel efficient, and environmentally-friendly. Volkswagen is a corporation doing business in all 50 states and is organized under the laws of the State of New Jersey, with its principal place of business located at 2200 Ferdinand Porsche Drive, Herndon, Virginia 20171. As such, Volkswagen is a citizen of New Jersey and Virginia. At all times relevant to this action, Volkswagen was involved in designing, engineering, manufacturing, assembling, testing, marketing, distributing and selling the Affected Vehicles. The Plaintiffs are represented by: James E. Cecchi, Esq. CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO, P.C. 5 Becker Farm Road Roseland, NJ 07068 Tel: (973) 994-1700 - and - Christopher A. Seeger, Esq. SEEGER WEISS LLP 77 Water St., 26th Fl. New York, NY 10005 Tel: (212) 584-0700 VOLKSWAGEN GROUP: Faces Suit in Cal. Over "Clean" Diesel Vehicles ---------------------------------------------------------------- Albert Khedr, Barry Wong, Doris Lee, Christina Capone, on behalf of themselves and all other similarly situated, v. Volkswagen Group Of America, Inc., Volkswagen AG, and AUDI AG, Case 5:15-cv- 04702 (N.D.Cal., October 9, 2015), arises out of a grand scheme by Defendants to commit fraud on the U.S. automobile market regarding its allegedly "clean" diesel vehicles. The suit alleges (1) Violations of the Magnuson-Moss Warranty Act (2) Fraud by Concealment or Misrepresentation (3) Fraud California Law, (4) Negligent Misrepresentation (5) Violations Of The California Consumers Legal Remedies Act (6) Violations Of The False Advertising Law, (7) Unlawful Business Practices In Violation Of The Unfair Competition Law (8) Unfair Business Practices In Violation Of The Unfair Competition Law, California Business & Professional Code (9) Fraudulent Business Practices In Violation Of The Unfair Competition Law (10) Breach Of Express Warranty, California Commercial Code (11) Violations Of The Song- Beverly Consumer Warranty Act and Breach Of Implied Warranty, Calif. Civil Code (12) Breach Of Contract (13) Breach Of Implied Warranty Of Merchantability, Calif. Commercial Code (14) Unjust Enrichment. Volkswagen designs, manufactures, markets, distributes and warrants vehicles in the United States under the Volkswagen and Audi brand names. The Plaintiffs are represented by: Christopher D. Banys, Esq. Richard C. Lin, Esq. Jennifer L. Gilbert, Esq. BANYS, P.C. 1032 Elwell Court, Suite 100 Palo Alto, California 94303 Phone: (650) 308-8505 Fax: (650) 353-2202 E-mail:cdb@banyspc.com rcl@banyspc.com jlg@banyspc.com VOLKSWAGEN GROUP: Faces "Killebrew" Suit Over "Defeat" Devices -------------------------------------------------------------- Kimberly L. Killebrew, Individually and on behalf of others similarly situated, v. Volkswagen Group Of America, Inc., A New Jersey Corporation, Case 1:15-cv-03604-MHC (N.D.Ga., October 9, 2015), arose because Volkswagen allegedly purposefully and intentionally breached the laws of the United States and the rules and regulations of various states and the U.S. Environmental Protection Agency by selling in the United States Volkswagen and Audi vehicles that purposefully evaded federal and state laws. Volkswagen manufactured, distributed, sold, leased, and warranted vehicles under the Volkswagen and Audi brand names throughout the United States. The Plaintiff is represented by: Kevin R. Dean, Esq. Joseph F. Rice, Esq. Jodi Westbrook Flowers, Esq. MOTLEY RICE, LLC 28 Bridgeside Boulevard Mount Pleasant, SC 29464 Phone: (843) 216-9000 E-mail: jrice@motleyrice.com kdean@motleyrice.com jflowers@motleyrice.com VOLKSWAGEN GROUP: Faces "Lawhon" Suit Over "CleanDiesel" Engine --------------------------------------------------------------- Jerry L. Lawhon, Individually and on behalf of all others similarly situated, v. Volkswagen Group Of America, Inc., a New Jersey Corporation, Case 8:15-cv-02377-MSS-JSS, (M.D.Fla., October 8, 2015), arises out of Volkswagen's alleged deceptive marketing of its new breed of diesel cars powered by TDI (Turbo-charged Direct Injection) "CleanDiesel" engine. The suit alleges that the Defendants violated the federal Clean Air Act as well as the U.S. Environmental Protection Agency rules and regulations, and it violated Florida statutory and common law including the Florida Deceptive and Unfair Trade Practices Act. It breached express and implied warranties under Florida law. Volkswagen designs, manufactures, markets, distributes and warrants vehicles in the United States under the Volkswagen and Audi brand names. Volkswagen is the world's largest automaker with diesel engines accounting for over 20 percent of its sales. The Plaintiff is represented by: Jonathan D. Boggs, Esq. BAILEY & GLASSER, LLP 209 Capitol Street Charleston, WV 25301 Phone: 304-345-6555 Fax: 304-342-1110 E-mail: jboggs@baileyglasser.com VOLKSWAGEN GROUP: Faces "Lively" Suit Over "Defeat Device" ---------------------------------------------------------- Matthew Ray Lively, on behalf of themselves and all others similarity situated, v. Volkswagen Group Of America, Inc.; Volkswagen AG & Audi AG, Case 2:15-cv-13773 (S.D.W.Va., October 8, 2015), alleges that Volkswagen deliberately installed sophisticated "defeat device" software in certain Volkswagen "Clean Diesel" vehicles identified by the U.S. Environmental Protection Agency for the purpose of manipulating emissions testing. Volkswagen designs, manufactures, markets, distributes and warrants vehicles in the United States under the Volkswagen and Audi brand names. The Plaintiff is represented by: Kevin W. Thompson, Esq. David R. Barney, Jr., Esq. THOMPSON BARNEY 2030 Kanawha Boulevard, East Charleston, VA 25311 Phone: (304) 343-4401 Fax: (3040 343-4405 E-mail: kwthompsonwv@gmail.com drbaneywv@gmail.com - and - Mark F. Underwood, Esq. UNDERWOOD LAW OFFICE 923 Third Avenue Huntington, VA 25701 Phone: (304) 522-0508 Fax: (304) 399-5449 E-mail: markunderwood@underwoodlawoffice.com - and - Rodney P. Jackson, Esq. 401 Fifth Third Center 700 Virginia Street, East Charleston, VA 25301 Phone: (843) 870-6879 Fax: (304)344-9566 E-mail: prodjackson27@yahoo.com VOLKSWAGEN GROUP: Faces "Whitcomb" Suit Over Clean Diesel Cars -------------------------------------------------------------- David Whitcomb, on behalf himself and all others similarly situated, V. Volkswagen Group of America, Inc., Volkswagen AG, Audi AG, and Audi of America, Inc., Case 1:15-cv-01315-LO-MSN (E.D.Va., October 8, 2015), seeks damages, injunctive relief, declaratory relief, and equitable relief, including but not limited to, the return of the purchase price of their cars with TDI CleanDiesel engines, return of the premium they paid for the Clean Diesel cars, compensation for the diminution in value of their cars, and compensation for the additional expenses (such as additional fuel costs) they incur as a result of Defendants' yet- to-be made modifications to the Class Vehicles. Volkswagen designs, manufactures, markets, distributes and warrants vehicles in the United States under the Volkswagen and Audi brand names. The Plaintiff is represented by: David Boies, Esq. BOIES, SCHILLER & FLEXNER LLP 333 Main Street Armonk, NY 10504 Phone: (914) 749-8200 Fax: (202) 749-8300 - and - Scott E. Gant, Esq. Melissa Felder Zappala, Esq. Stacey K. Grigsby, Esq. Wells Harrell, Esq. BOIES, SCHILLER & FLEXNER LLP 5301 Wisconsin Avenue NW Washington, DC 20015 Phone: 202-237-2727 Fax: 202-237-6131 E-mail: sgant@bsfllD.com mzappala@bsfllp.com sgrigsbv@.bsfllp.com wharreli@bsfllp.com WAL-MART STORES: Faces "Mullins" Suit Over Pork & Beans Product --------------------------------------------------------------- Tanya Thompson Mullins, on Behalf of Herself and All Others Similarly Situated, v. Wal-Mart Stores, Inc., Case: 1:15-cv-08946 (N.D.Ill., October 8 2015), was brought on behalf of a proposed sub-class, composed of all those who purchased Wal-Mart's "store brand," "Great Value Pork & Beans in Tomato Sauce," at a Wal-Mart store located in Illinois between October 8, 2012 and the present, who were allegedly deceived into believing the product contains pork. Defendant Wal-Mart Stores, Inc. is the owner and operator of various Wal-Mart stores throughout the United States, including Illinois. The Plaintiff is represented by: Janine L. Pollack, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 270 Madison Avenue New York, NY 10016 Phone: (212) 545-4600 Fax: (212) 545-4653 E-mail: pollack@whafh.com - and - Richard J. Lantinberg, Esq. THE WILNER FIRM 444 E. Duval Street Jacksonville, FL 32202 Phone: (904) 446-9817 Fax: (904) 446-9825 E-mail: rlantinberg@wilnerfirm.com ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Marion Alcestis A. Castillon, Ma. Cristina Canson, Noemi Irene A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2015. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. 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