/raid1/www/Hosts/bankrupt/CAR_Public/160118.mbx
C L A S S A C T I O N R E P O R T E R
Monday, January 18, 2016, Vol. 18, No. 11
Headlines
A10 NETWORKS: Continues to Defend IPO Class Suit
ADVANCE STORES: Faces "Hise" Suit in Ill. Over ADA Violation
AIRGAS INC: Farugi Law Firm Files Class Action Lawsuit
AL AUTOMOTIVE: Faces "Lim" Suit Over Failure to Pay Overtime
ALLERGAN PLC: Actos Indirect Purchasers' Complaint Tossed
ALLERGAN PLC: Defending AndroGel Litigation
ALLERGAN PLC: 5 Class Suits Filed Over Asacol Product
ALLERGAN PLC: Defending Botox(R) Litigation in Calif.
ALLERGAN PLC: Provides Updates on Cipro(R) Litigation
ALLERGAN PLC: Mylan Appeals Decision in Doryx(R) Litigation
ALLERGAN PLC: Continues to Defend Lidoderm Class Suit
ALLERGAN PLC: Court Decision in Loestrin Case Under Appeal
ALLERGAN PLC: Defending Namenda(R) Class Actions
ALLSTATE CLINICAL: Fails to Pay Employees OT, "Lee" Suit Says
ALTER TRADING: "Huerta" Suit Alleges FLSA Violation
AMERICAN AIRLINES: Faces Ullico Suit Over Capacity Discipline
AMERICAN FUTURE: Must Pay Employees for Short Workday Breaks
AMGEN INC: February 16 Class Action Opt-Out Deadline Set
AQUAPHEX TOTAL: SEC Wants Lawyer Fined for Securities Fraud
BARCLAYS BANK: Faces "Value Recovery" Suit Over Limit Orders
BATH & BODY: "Broadstone" Class Suit Removed to C.D. California
BISCO INC: "Fulton Dental" Suit Alleges TCPA Violation
BLOOMIN BRANDS: Faces "Hise" Suit in Ill. Over ADA Violation
BRITISH COLUMBIA, CA: Workers, Families Seek Class Status of Suit
BUFFALO BILLS: Cheerleaders Obtain Class Status in Wage Suit
CAVALRY PORTFOLIO: Illegally Collects Debt, "Fekete" Suit Claims
CAVALRY PORTFOLIO: "Santiago" Suit Removed to N.J. Dist. Ct.
CERTEGY CHECK: Sued Over Inaccurate Consumer Information
CONVERGENT OUTSOURCING: Illegally Collects Debt, Action Claims
DANNON COMPANY: Loses Bid to Halt Chobani Advertising Claims
DEX MEDIA: Bid to Dismiss Amended Fulmer Complaint Pending
DSW INC: "Gunther" Suit Alleges FCRA Violation
EOS LIP BALM: Facing New Challenge in Court
ESPERION THERAPEUTICS: Robbins Geller Files Securities Suit
FEDEX GROUND: Faces "Ricks" Suit for Sex Discrimination of Driver
FITBIT: Hit With New Investor Suit Over Alleged Fraud
FTD COMPANIES: Appeal of Deal in EasySaver Rewards Case Pending
FXFL LLC: Faces "Auffray" Suit Over Failure to Pay Overtime Wages
G4S YOUTH: "Torres" Suit Seeks to Recover Unpaid Overtime Wages
GC SERVICES: Faces "Jeanbaptiste" Suit for Debt Collection Act
GENERAL MOTORS: Jury Selection in Ignition-Switch Case Completed
GENERAL MOTORS: Bellwether Ignition-Switch Trial Begins
GENERAL NUTRITION: Faces "Hubert" Suit for Consumer Deception
GROSSMAN ASSISTANCE: Sued in Cal. Over Retaliation Policies
HEADWAY TECHNOLOGIES: Faces "Hendricks" Shareholder Class Action
HILL/GREY SEVEN: "McCowan" Suit Alleges WARN Act Violation
IMAX CORP: Faces "Andre" Suit Seeking Recovery of Unpaid Wages
J PETERMAN: "Heeter" Suit Alleges FLSA Violation
KRAFT HEINZ: Seeks Restoration of Benefits Under ERISA, Labor Act
LG CLEANERS: Faces "Batista" Suit Alleging Violations of FLSA
LINEBARGER GOGGAN: Settles Class Suit for $34-Mil.
MAISON BOURBON: "Edwards" Suit Seeks to Recover Unpaid Wages
METRO ONTARIO: Recalls Cheese Ravioli Products Due to Salmonella
NATURAL HEALTH: Sued for False, Misleading Statements to Investors
NEWMAR: Recalls Dutch Star Class A Motorhomes 2016 Models
NEWS CORPORATION: "Wilder" Plaintiffs Seek Reconsideration
NINGBO EGO: Recalls Indoor String Lights Due to Fire Hazard
PETER KILMARTIN: Faces Suit Under "Residency Prohibition" of R.I.
PETM CANADA: Recalls LED Light Betta Bowl Kits
PETM CANADA: Recalls Glass Fish Bowl Products
PHOENIX, AZ: Judge Allows Class-Action Suit vs. Border Patrol
R.J. REYNOLDS: Seeks Dismissal of Class Lawsuit Targeting Vuse
RAY CAMMACK: Faces "Berelleza" Suit to Recover Unpaid Wages, OT
RIGHTSCORP: Settles Suit Over Phone Calls to Suspected Pirates
SEAWORLD ENTERTAINMENT: Dismissal of "Baker" Action Sought
SEAWORLD ENTERTAINMENT: Bid to Dismiss "Hall" Suit Pending
SEAWORLD ENTERTAINMENT: "Anderson" Suit Stays in N.D. Cal.
SHARKNINJA OPERATING: Recalls Ninja (R) Professional Blenders
SHIRTS KIM: "Romero" Suit Seeks to Recover Unpaid Overtime Wages
SOUTHERN CALIFORNIA: Faces Suits Over Massive Natural Gas Leak
SUNEDISON INC: Stocks Drop Nearly 50% Over Debt, Class Suit
TAISHAN GYPSUM: Faces $40K Fine for Withholding Information
TIME INC: Defending "Fox" Class Suit in Michigan
UBER TECHNOLOGIES: Faces Wrongful Death Suit Over Rollover Crash
UMPQUA HOLDINGS: Appeal in Class Action v. Sterling Still Open
UNITED PARCEL: Feb. 2016 Trial in "Morgate" Class Suit
UNITED PARCEL: 1 Class Suit Remains Open in Ontario
UNITED PARCEL: Accord in Price-Fixing Case Awaits Final Approval
UNITED STATES: Class Suit against IRS Certified by Federal Judge
UNIVERSAL PROTECTION: "Dimery" Suit Alleges FLSA Violations
VOLKSWAGEN: Altroconsumo to Appeal Rejected Class Action
VOLKSWAGEN AG: Faces "Fusco" Class Suit in Calif. Ct.
VOLKSWAGEN AG: Jan. 21 Hearing Set for Lead Counsel Motions
VOLKSWAGEN AG: Judge to Appoint Mueller as Settlement Master
VOLKSWAGEN GROUP: Faces "Baldwin" Suit Over "Clean Diesel" Cars
WAL-MART STORES: "Darnell" Suit Alleges FLSA Violation
WESTERN UNION: Lacks Standing to Challenge Class Atty Fees
YAHOO INC: Settles E-mail Privacy Class-Action
* Employment Lawyers Say Tech Companies Must Address Sexism Issue
* Pennsylvania Courts Address Rule 1702 Class Certification Issues
* Senate Passes Consumer Review Freedom Act to Forbid Gag Clauses
* Supreme Court Should Police Class Action Settlements
*********
A10 NETWORKS: Continues to Defend IPO Class Suit
------------------------------------------------
A10 Networks, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on November 6, 2015, for the
quarterly period ended September 30, 2015, that the company
continues to defend a class action related to its initial public
offering.
The Company said, "On January 29, 2015, the Company, the members
of our Board of Directors, our Chief Financial Officer, and the
underwriters of our March 21, 2014 Initial Public Offering ("IPO")
were named as defendants in a putative class action lawsuit filed
in the Superior Court of the State of California, County of Santa
Clara, captioned City of Warren Police and Fire Retirement System
v. A10 Networks, Inc., et al., 1-15-CV-276207. Several
substantially identical lawsuits were subsequently filed in the
same court, bringing the same claims against the same defendants,
captioned Arkansas Teacher Retirement System v. A10 Networks,
Inc., et al., 1-15-CV-278575 (filed March 25, 2015) and Kaveny v.
A10 Networks, Inc., et al., 1-15-CV-279006 (filed April 6, 2015)."
On May 29, 2015, the aforementioned putative class actions were
consolidated under the caption In re A10 Networks, Inc.
Shareholder Litigation, 1-15-CV-276207. On June 30, 2015,
plaintiffs filed a Consolidated Class Action Complaint. The
Consolidated Complaint seeks to allege violations of the federal
Securities Act of 1933 on behalf of a putative class consisting of
purchasers of the Company's common stock pursuant or traceable to
the registration statement and prospectus for the initial public
offering, and seek unspecified compensatory damages and other
relief.
On July 31, 2015, the defendants filed demurrers, which the
plaintiffs opposed, and which were set for a hearing before the
Superior Court on November 6, 2015.
"We intend to vigorously defend these lawsuits," the Company said.
ADVANCE STORES: Faces "Hise" Suit in Ill. Over ADA Violation
------------------------------------------------------------
Michele Van Hise, individually and on behalf of all others
similarly situated v. Advance Stores Company Inc., Case No. 2:15-
cv-02284-HAB (C.D. Ill., December 3, 2015) is brought against the
Defendant for violation of the Americans with Disabilities Act.
Advance Stores Company Inc. specializes in the manufacture of auto
parts and accessories and supplies.
The Plaintiff is represented by:
Matthew H. Armstrong, Esq.
ARMSTRONG LAW FIRM LLC
8816 Manchester Road
St. Louis, MO 63144
Telephone: (314) 258-0212
E-mail: matt@mattarmstronglaw.com
- and -
Benjamin J. Sweet, Esq.
Stephanie K. Goldin, Esq.
CARLSON LYNCH SWEET & KILPELA LLP
5th Floor, 1133 Penn Avenue
Pittsburgh, PA 15222
Telephone: (412) 322-9243
Facsimile: (412) 231-0246
AIRGAS INC: Farugi Law Firm Files Class Action Lawsuit
------------------------------------------------------
Juan E. Monteverde, Esq. -- jmonteverde@faruqilaw.com -- of Faruqi
& Faruqi, LLP, has filed a class action lawsuit in the United
States District Court for the Eastern District of Pennsylvania,
case no. 2:15-cv-06787, on behalf of unitholders of Airgas, Inc.
("Airgas" or the "Company") (NYSE: ARG) who held (and continue to
hold) Airgas securities acquired on or before November 17, 2015.
On November 17, 2015, the Company entered into a Purchase
Agreement and Plan of Merger ("Merger Agreement") under which
L'Air Liquide, S.A. ("Air Liquid") will acquire all of the
outstanding units of Airgas through the newly formed subsidiary AL
Acquisition Corporation. The unit-for-unit transaction is valued
at approximately $13.4 billion.
The complaint charges Airgas, its Board of Directors, and
affiliated corporate entities and individuals with violations of
Sections 14(a) and 20(a) of the Securities Exchange Act of 1934
(the "Exchange Act").
Pursuant to the terms of the Merger Agreement, which was
unanimously approved by the Company's Board of Directors (the
"Board" or "Individual Defendants"), Airgas unitholders will
receive $143.00 in cash per share for each unit of Airgas they
own. However, the complaint alleges that the offer does not
reflect the Company's inherent and long-term value based on recent
financial reports.
Furthermore, according to the complaint, the Merger Agreement
includes a non-solicitation provision, a matching rights
provision, and a $400 million termination fee which essentially
ensure that a superior bidder will not emerge, as any potential
suitor will undoubtedly be deterred from expending the time, cost,
and effort of making a superior proposal.
The complaint also alleges that the preliminary proxy statement
(the "Proxy") filed with the Securities and Exchange Commission
("SEC") on December 8, 2015 provided materially incomplete and
misleading disclosures, thereby violating Sections 14(a) and 20(a)
of the Exchange Act. The Proxy denies Airgas unitholders material
information concerning the financial and procedural fairness of
the Merger.
AL AUTOMOTIVE: Faces "Lim" Suit Over Failure to Pay Overtime
------------------------------------------------------------
Roger Lim v. Al Automotive Service, Inc., Harix Piekarsa, and
Does 1-100, inclusive, Case No. BC602890 (Cal. Super. Ct.,
December 2, 2015) is brought against the Defendants for failure to
pay overtime wages in violation of the California Labor Code.
The Defendants own and operate an auto parts store located at 8803
E. Las Tunas Dr., San Gabriel, CA 91776.
The Plaintiff is represented by:
Michael B. Eisenberg, Esq.
Daniel Nomanim, Esq.
EISENBERG & ASSOCIATES
3580 Wilshire Blvd, Suite 1260
Los Angeles, CA 90010
Telephone: (213) 201-9331
Facsimile: (213) 382-4083
ALLERGAN PLC: Actos Indirect Purchasers' Complaint Tossed
---------------------------------------------------------
Allergan plc and Warner Chilcott Limited said in their Form 10-Q
Report filed with the Securities and Exchange Commission on
November 6, 2015, for the quarterly period ended September 30,
2015, that a court has granted a motion to dismiss the indirect
purchasers' complaint in its entirety in the Actos(R) antitrust
litigation.
On December 31, 2013 two putative class actions, on behalf of
putative classes of indirect purchaser plaintiffs, were filed in
the federal court for the Southern District of New York against
Actavis plc and certain of its affiliates alleging that Watson
Pharmaceuticals, Inc.'s ("Watson" now known as Actavis, Inc.) 2010
patent lawsuit settlement with Takeda Pharmaceutical, Co. Ltd.
related to Actos(R) (pioglitazone hydrochloride and metformin
"Actos(R)") is unlawful. Several additional complaints have also
been filed. Plaintiffs then filed a consolidated, amended
complaint on May 20, 2014. The amended complaint generally alleges
an overall scheme that included Watson improperly delaying the
launch of its generic version of Actos(R) in exchange for
substantial payments from Takeda in violation of federal and state
antitrust and consumer protection laws. The complaint seeks
declaratory and injunctive relief and unspecified damages.
Defendants have moved to dismiss the amended complaint. On
September 23, 2015, the court granted the motion to dismiss the
indirect purchasers' complaint in its entirety.
In May 2015, two additional putative class action complaints, each
of which makes similar allegations against the Company and Takeda,
were filed by plaintiffs on behalf of a putative class of direct
purchasers.
The Company believes that it has substantial meritorious defenses
to the claims alleged. However, these actions, if successful,
could adversely affect the Company and could have a material
adverse effect on the Company's business, results of operations,
financial condition and cash flows.
ALLERGAN PLC: Defending AndroGel Litigation
-------------------------------------------
Allergan plc and Warner Chilcott Limited continues to defend
litigation related to their AndroGel(R) product, the Companies
said in their Form 10-Q Report filed with the Securities and
Exchange Commission on November 6, 2015, for the quarterly period
ended September 30, 2015.
On January 29, 2009, the U.S. Federal Trade Commission and the
State of California filed a lawsuit in federal district court in
California alleging that the September 2006 patent lawsuit
settlement between Watson and Solvay Pharmaceuticals, Inc.
("Solvay"), related to AndroGel(R) 1% (testosterone gel) CIII is
unlawful. The complaint generally alleged that Watson improperly
delayed its launch of a generic version of AndroGel(R) in exchange
for Solvay's agreement to permit Watson to co-promote AndroGel(R)
for consideration in excess of the fair value of the services
provided by Watson, in violation of federal and state antitrust
and consumer protection laws. The complaint sought equitable
relief and civil penalties.
On February 2 and 3, 2009, three separate lawsuits alleging
similar claims were filed in federal district court in California
by various private plaintiffs purporting to represent certain
classes of similarly situated claimants. On April 8, 2009, the
Court transferred the government and private cases to the United
States District Court for the Northern District of Georgia.
The FTC and the private plaintiffs filed amended complaints on May
28, 2009. The private plaintiffs amended their complaints to
include allegations concerning conduct before the U.S. Patent and
Trademark Office (the "USPTO"), conduct in connection with the
listing of Solvay's patent in the FDA "Orange Book," and sham
litigation. Additional actions alleging similar claims have been
filed in various courts by other private plaintiffs purporting to
represent certain classes of similarly situated direct or indirect
purchasers of AndroGel(R).
The Judicial Panel on Multidistrict Litigation ("JPML")
transferred all federal court actions then pending outside of
Georgia to that district. The district court then granted the
Company's motion to dismiss all claims except the private
plaintiffs' sham litigation claims. After the dismissal was upheld
by the Eleventh Circuit Court of Appeals, the FTC petitioned the
United States Supreme Court to hear the case.
On June 17, 2013, the Supreme Court issued a decision, holding
that the settlements between brand and generic drug companies
which include a payment from the brand company to the generic
competitor must be evaluated under a "rule of reason" standard of
review and ordered the case remanded (the "Supreme Court AndroGel
Decision"). The case is now back in the district court in Georgia.
On August 5, 2014 the indirect purchaser plaintiffs filed an
amended complaint which the Company answered on September 15,
2014.
The Company believes it has substantial meritorious defenses and
intends to defend itself vigorously. However, these actions, if
successful, could adversely affect the Company and could have a
material adverse effect on the Company's business, results of
operations, financial condition and cash flows.
ALLERGAN PLC: 5 Class Suits Filed Over Asacol Product
-----------------------------------------------------
Five class action lawsuits have been filed related to Asacol(R),
Allergan plc and Warner Chilcott Limited said in their Form 10-Q
Report filed with the Securities and Exchange Commission on
November 6, 2015, for the quarterly period ended September 30,
2015.
On June 22, 2015, two class action complaints were filed in
federal court in Massachusetts on behalf of a putative class of
indirect purchasers. In each complaint plaintiffs allege that
they paid higher prices for Warner Chilcott's Asacol(R) HD and
Delzicol(R) products as a result of Warner Chilcott's alleged
actions preventing or delaying generic competition in the market
for Warner Chilcott's older Asacol(R) product in violation of U.S.
federal antitrust laws and/or state laws. Plaintiffs seek
unspecified injunctive relief, treble damages and/or attorneys'
fees. All of the actions were consolidated in the federal district
court.
On September 21, 2015, three additional complaints were filed on
behalf of putative classes of indirect purchasers, each raising
similar allegations to the complaints filed in June 2015.
The Company believes it has substantial meritorious defenses and
intends to defend itself vigorously. However, these actions, if
successful, could adversely affect the Company and could have a
material adverse effect on the Company's business, results of
operations, financial condition and cash flow
ALLERGAN PLC: Defending Botox(R) Litigation in Calif.
-----------------------------------------------------
Allergan plc and Warner Chilcott Limited said in their Form 10-Q
Report filed with the Securities and Exchange Commission on
November 6, 2015, for the quarterly period ended September 30,
2015, that the Company must defend the Botox(R) litigation after a
court in California denied their motion to dismiss the complaint.
On February 24, 2015, a class action complaint was filed in
federal court in California. The complaint alleges unlawful market
allocation in violation of Section 1 of the Sherman Act, 15 U.S.C.
Sec. 1, agreement in restraint of trade in violation of 15 U.S.C.
Sec. 1 of the Sherman Act, unlawful maintenance of monopoly market
power in violation of Section 2 of the Sherman Act, 15 U.S.C. Sec.
2 of the Sherman Act, violations of California's Cartwright Act,
Section 16700 et seq. of Calif. Bus. and Prof. Code., and
violations of California's unfair competition law, Section 17200
et seq. of Calif. Bus. and Prof. Code. Plaintiffs filed an amended
complaint on May 29, 2015.
On June 29, 2015, the Company filed a motion to dismiss the
complaint. On October 20, 2015, the Court denied the Company's
motion to dismiss the complaint.
The Company believes it has substantial meritorious defenses and
intends to defend itself vigorously. However, these actions, if
successful, could adversely affect the Company and could have a
material adverse effect on the Company's business, results of
operations, financial condition and cash flows.
ALLERGAN PLC: Provides Updates on Cipro(R) Litigation
-----------------------------------------------------
Allergan plc and Warner Chilcott Limited, in their Form 10-Q
Report filed with the Securities and Exchange Commission on
November 6, 2015, for the quarterly period ended September 30,
2015, provided updates on litigation related to Cipro(R).
Beginning in July 2000, a number of suits were filed against
Watson and certain Company affiliates including The Rugby Group,
Inc. ("Rugby") in various state and federal courts alleging claims
under various federal and state competition and consumer
protection laws. The actions generally allege that the defendants
engaged in unlawful, anticompetitive conduct in connection with
alleged agreements, entered into prior to Watson's acquisition of
Rugby from Sanofi Aventis ("Sanofi"), related to the development,
manufacture and sale of the drug substance ciprofloxacin
hydrochloride, the generic version of Bayer's brand drug,
Cipro(R). The actions generally seek declaratory judgment,
damages, injunctive relief, restitution and other relief on behalf
of certain purported classes of individuals and other entities.
While many of these actions have been dismissed, actions remain
pending in various state courts, including California, Kansas,
Tennessee, and Florida. There has been activity in Tennessee and
Florida since 2003.
In the action pending in Kansas, plaintiffs' motion for class
certification has been fully briefed. In the action pending in the
California state court, following the decision from the United
States Supreme Court in the Federal Trade Commission v. Actavis
matter involving AndroGel(R), Plaintiffs and Bayer announced that
they reached an agreement to settle the claims pending against
Bayer and Bayer has now been dismissed from the action.
Plaintiffs are continuing to pursue claims against the generic
defendants, including Watson and Rugby. The remaining parties
submitted letter briefs to the court regarding the impact of the
Supreme Court AndroGel Decision and on May 7, 2015, the California
Supreme Court issued a ruling, consistent with the Supreme Court
AndroGel Decision, that the settlements between brand and generic
drug companies which include a payment from the brand company to
the generic competitor must be evaluated under a "rule of reason"
standard of review.
In addition to the pending actions, the Company understands that
various state and federal agencies are investigating the
allegations made in these actions. Sanofi has agreed to defend and
indemnify Watson and its affiliates in connection with the claims
and investigations arising from the conduct and agreements
allegedly undertaken by Rugby and its affiliates prior to Watson's
acquisition of Rugby, and is currently controlling the defense of
these actions.
ALLERGAN PLC: Mylan Appeals Decision in Doryx(R) Litigation
-----------------------------------------------------------
Allergan plc and Warner Chilcott Limited said in their Form 10-Q
Report filed with the Securities and Exchange Commission on
November 6, 2015, for the quarterly period ended September 30,
2015, that Mylan Pharmaceuticals Inc. ("Mylan") is appealing a
court decision to the Third Circuit Court of Appeals in the Doryx
(R) litigation.
In July 2012, Mylan filed a complaint against Warner Chilcott and
Mayne Pharma International Pty. Ltd. ("Mayne") in federal court in
Pennsylvania alleging that Warner Chilcott and Mayne prevented or
delayed Mylan's generic competition to Warner Chilcott's Doryx(R)
products in violation of U.S. federal antitrust laws and
tortiously interfered with Mylan's prospective economic
relationships under Pennsylvania state law. In the complaint,
Mylan seeks unspecified treble and punitive damages and attorneys'
fees. Following the filing of Mylan's complaint, three putative
class actions were filed against Warner Chilcott and Mayne by
purported direct purchasers, and one putative class action was
filed against by purported indirect purchasers. In addition, four
retailers filed in the same court a civil antitrust complaint in
their individual capacities against Warner Chilcott and Mayne
regarding Doryx(R). In each of the class and individual cases the
plaintiffs allege that they paid higher prices for Warner
Chilcott's Doryx(R) products as a result of Warner Chilcott's and
Mayne's alleged actions preventing or delaying generic competition
in violation of U.S. federal antitrust laws and/or state laws.
Plaintiffs seek unspecified injunctive relief, treble damages
and/or attorneys' fees. All of the actions were consolidated in
the federal district court.
Warner Chilcott and Mayne's motion to dismiss was denied without
prejudice by the court in June 2013. Thereafter, Warner Chilcott
and Mayne reached agreements to settle the claims of the Direct
Purchaser Plaintiff class representatives, the Indirect Purchaser
Plaintiff class representatives and each of the individual
retailer plaintiffs. Warner Chilcott and Mylan filed motions for
summary judgment on March 10, 2014.
On April 16, 2015, the court issued an order granting Warner
Chilcott and Mayne's motion for summary judgment, denying Mylan's
summary judgment motion and entering judgment in favor of Warner
Chilcott and Mayne on all counts. Mylan is appealing the district
court's decision to the Third Circuit Court of Appeals.
The Company intends to vigorously defend its rights in the
litigations. However, it is impossible to predict with certainty
the outcome of any litigation and whether any additional similar
suits will be filed.
ALLERGAN PLC: Continues to Defend Lidoderm Class Suit
-----------------------------------------------------
Allergan plc and Warner Chilcott Limited said in their Form 10-Q
Report filed with the Securities and Exchange Commission on
November 6, 2015, for the quarterly period ended September 30,
2015, that the Company continues to defend a class action related
to a patent lawsuit settlement related to Lidoderm(R).
On November 8, 2013, a putative class action was filed in the
federal district court against Actavis, Inc. and certain of its
affiliates alleging that Watson's 2012 patent lawsuit settlement
with Endo Pharmaceuticals, Inc. related to Lidoderm(R) (lidocaine
transdermal patches, "Lidoderm(R)") is unlawful. The complaint,
asserted on behalf of putative classes of direct purchaser
plaintiffs, generally alleges that Watson improperly delayed
launching generic versions of Lidoderm(R) in exchange for
substantial payments from Endo in violation of federal and state
antitrust and consumer protection laws. The complaint seeks
declaratory and injunctive relief and damages. Additional lawsuits
containing similar allegations have followed on behalf of other
classes of putative direct purchasers and suits have been filed on
behalf of putative classes of end-payer plaintiffs. The Company
anticipates additional claims or lawsuits based on the same or
similar allegations may be filed.
On April 3, 2014 the JPML consolidated the cases in federal
district court in California. Defendants filed motions to dismiss
each of the plaintiff classes' claims. On November 17, 2014, the
court issued an order granting the motion in part but denying it
with respect to the claims under Section 1 of the Sherman Act.
Plaintiffs then filed an amended, consolidated complaint on
December 19, 2014. Defendants have responded to the amended
consolidated complaint.
On March 5, 2015, a group of five retailers filed a civil
antitrust complaint in their individual capacities regarding
Lidoderm(R) in the same court where it was consolidated with the
direct and indirect purchaser class complaints. The retailer
complaint recites similar facts and asserts similar legal claims
for relief to those asserted in the related cases described above.
The five retailers amended their complaint on July 27, 2015.
The Company believes it has substantial meritorious defenses and
intends to defend itself vigorously. However, these actions, if
successful, could adversely affect the Company and could have a
material adverse effect on the Company's business, results of
operations, financial condition and cash flows.
ALLERGAN PLC: Court Decision in Loestrin Case Under Appeal
----------------------------------------------------------
Allergan plc and Warner Chilcott Limited said in their Form 10-Q
Report filed with the Securities and Exchange Commission on
November 6, 2015, for the quarterly period ended September 30,
2015, that plaintiffs in the Loestrin (R) 24 Litigation have taken
an appeal from a court decision to the First Circuit Court of
Appeals.
On April 5, 2013, two putative class actions were filed in the
federal district court against Actavis, Inc. and certain
affiliates alleging that Watson's 2009 patent lawsuit settlement
with Warner Chilcott related to Loestrin(R) 24 Fe (norethindrone
acetate/ethinyl estradiol tablets and ferrous fumarate tablets,
"Loestrin(R) 24") is unlawful. The complaints, both asserted on
behalf of putative classes of end-payors, generally allege that
Watson and another generic manufacturer improperly delayed
launching generic versions of Loestrin(R) 24 in exchange for
substantial payments from Warner Chilcott, which at the time was
an unrelated company, in violation of federal and state antitrust
and consumer protection laws. The complaints each seek declaratory
and injunctive relief and damages. Additional complaints have been
filed by different plaintiffs seeking to represent the same
putative class of end-payors.
In addition to the end-payor suits, two lawsuits have been filed
on behalf of a class of direct payors. The Company anticipates
additional claims or lawsuits based on the same or similar
allegations.
After a hearing on September 26, 2013, the JPML issued an order
transferring all related Loestrin(R) 24 cases to the federal court
for the District of Rhode Island. On September 4, 2014, the court
granted the defendants' motion to dismiss the complaint. The
plaintiffs are appealing the district court's decision to the
First Circuit Court of Appeals.
The Company believes it has substantial meritorious defenses and
intends to defend itself vigorously including in the appeal of the
district court's decision granting the Company's motion to
dismiss. However, these actions, if successful, could adversely
affect the Company and could have a material adverse effect on the
Company's business, results of operations, financial condition and
cash flows.
ALLERGAN PLC: Defending Namenda(R) Class Actions
------------------------------------------------
Allergan plc and Warner Chilcott Limited said in their Form 10-Q
Report filed with the Securities and Exchange Commission on
November 6, 2015, for the quarterly period ended September 30,
2015, that the Company is defending class action complaints
alleging violations of antitrust laws related to the Namenda (R)
product.
On September 15, 2014, the State of New York, through the Office
of the Attorney General of the State of New York, filed a lawsuit
in the United States District Court for the Southern District of
New York alleging that Forest is acting to prevent or delay
generic competition to Forest's immediate-release product
Namenda(R) in violation of federal and New York antitrust laws and
committed other fraudulent acts in connection with its commercial
plans for Namenda(R) XR. In the complaint, the state seeks
unspecified monetary damages and injunctive relief.
On September 24, 2014, the state filed a motion for a preliminary
injunction prohibiting Forest from discontinuing or otherwise
limiting the availability of immediate-release Namenda(R) until
the conclusion of the litigation. A hearing was held in November
2014 on the state's preliminary injunction motion. On December 11,
2014, the district court issued a ruling granting the state's
injunction motion and issued an injunction on December 15, 2014.
On May 22, 2015, the Court of Appeals for the Second Circuit
affirmed the preliminary injunction. On June 5, 2015, Forest filed
a petition with the Second Circuit for rehearing en banc which was
denied.
On May 29, 2015, a putative class action was filed on behalf of a
class of direct purchasers and on June 8, 2015 a similar putative
class action was filed on behalf of a class of indirect
purchasers. Since that time, additional complaints have been
filed on behalf of putative classes of direct and indirect
purchasers.
The class action complaints make claims similar to those asserted
by the New York Attorney General and also include claims that
Namenda(R) XR patent litigation settlements between Forest and
generic companies also violated the antitrust laws. The Company
believes it has substantial meritorious defenses and intends to
defend both its brand and generic defendant entities vigorously.
However, these actions, if successful, could adversely affect the
Company and could have a material adverse effect on the Company's
business, results of operations, financial condition and cash
flows.
ALLSTATE CLINICAL: Fails to Pay Employees OT, "Lee" Suit Says
-------------------------------------------------------------
Tamara Lee v. Allstate Clinical Laboratories, LLC, Hassan Hyatt,
Natisha Cole, Alpha Clinical Laboratories, LLC, and Rafael F.
Chikvashvili, Case No. 1:15-cv-03712-CCB (D. Md., December 3,
2015) is brought against the Defendants for failure to pay
overtime compensation for work in excess of 40 hours per week.
The Defendants own and operate assisted living, adult day care and
mental health service facilities in Maryland.
The Plaintiff is represented by:
Judd G. Millman, Esq.
Bruce M. Luchansky, Esq.
LUCHANSKY LAW
606 Bosley Avenue, Suite 3B
Towson, MD 21204
Telephone: (410) 522-1020
Facsimile: (410) 522-1021
E-mail: judd@luchanskylaw.com
lucky@luchanskylaw.com
ALTER TRADING: "Huerta" Suit Alleges FLSA Violation
---------------------------------------------------
Gerardo Huerta, and all others similarly situated v. Alter Trading
Corporation, Case No. 2:15-cv-01463 (E.D. Wis., December 8, 2015),
is brought against the Defendants for failure to pay overtime in
violation of the Fair Labor Standards Act and Wisconsin wage claim
law.
The Defendant operates a recycling yard at 1640 W. Bruce St.,
Milwaukee, WI 53204.
The Plaintiff is represented by:
Alan C. Olson, Esq.
ALAN C. OLSON & ASSOCIATES, S.C.
2880 S. Moorland Rd.
New Berlin, WI 53151
Tel: (262) 785-9606
Fax: (262) 785-1324
E-mail: AOlson@Employee-Advocates.com
AMERICAN AIRLINES: Faces Ullico Suit Over Capacity Discipline
-------------------------------------------------------------
Ullico Inc., on behalf of itself and all others similarly situated
v. American Airlines, Inc., Delta Air Lines, Inc., Southwest
Airlines Co. and United Airlines, Inc., Case No. 1:15-cv-02096-CKK
(D.C., December 3, 2015) arises from the Defendants' alleged
unlawful combination, agreement and conspiracy to exercise
"capacity discipline," which in industry parlance means limiting
the supply of flights and seats.
The Defendants are the four largest commercial airlines in the
United States.
The Plaintiff is represented by:
Jay L. Himes, Esq.
Lawrence A. Sucharow, Esq.
Gregory S. Asciolla, Esq.
Robin A. van der Meulen, Esq.
Marisa N. DeMato, Esq.
LABATON SUCHAROW LLP
140 Broadway New York, NY 10005
Telephone: (212)-907-0700
Facsimile: (212)-818-0477
E-mail: jhimes@labaton.com
lsucharow@labaton.com
gasciolla@labaton.com
rvandermeulen@labaton.com
mdemato@labaton.com
- and -
Paul L. Knight, Esq.
NOSSAMAN LLP
1666 K Street, NW, Suite 500
Washington, D.C. 20006
Telephone: (202)-887-1400
Facsimile: (202)-466-3215
E-mail: pknight@nossaman.com
AMERICAN FUTURE: Must Pay Employees for Short Workday Breaks
------------------------------------------------------------
Sid Steinberg, writing for The Legal Intelligencer, reports that
in Perez v. American Future Systems, No. 12-6171 (Dec. 16, 2015)
(Restrepo, J), the court found that an employer must always pay
employees for breaks of 20 minutes or less under the Fair Labor
Standards Act.
Time Off the Computer Is Unpaid
Progressive Business Publications creates and sells business
information publications. Its sales representatives work at call
centers in Pennsylvania, Ohio and New Jersey, according to the
opinion. The sales representatives, working at the call centers,
log on to Progressive's computer system upon arrival at work and,
throughout the day, make outbound sales calls, document the
results of the calls and perform various other tasks at
Progressive's direction. The company's policy is to pay sales
representatives "only . . . for the time that they are logged into
the timekeeping system," the opinion said.
In or around June 2009, the Department of Labor began
investigating Progressive's break policy, according to the
opinion. The next month, Progressive implemented a policy whereby
"representatives may take personal breaks at any time for any
reason. Personal break time is not paid because it is a
disadvantage to the representative to do so." As such, it was the
company's policy that any time a sales representative was not
directly and actively engaged in work for the company (for
example, if the representative used the restroom or got a cup of
coffee), he or she was required to log off of the computer
system, which would result in the representative being "off the
clock" and his or her time would not be paid.
Department of Labor Files Suit
The secretary of Labor brought suit against Progressive for
violations of the FLSA in November 2012. Specifically, the suit
alleged that because Progressive's sales representatives were not
being compensated for breaks of 20 minutes or less, they were
being paid below minimum wage.
After extensive discovery, the parties filed cross-motions for
summary judgment.
Breaks Are 'Rest,' Not 'Off Duty'
The principal dispute centered on which section of the DOL's
regulations applied to Progressive's break policy. Progressive
argued that 29 C.F.R. Section 785.16, relating to periods when
employees are "off duty," governed the break policy.
Specifically, because Progressive allowed employees "to take as
many breaks as they want for as long as they want," the unlimited
(but unpaid) breaks were periods "during which an employee is
completely relieved from duty and which are long enough to enable
him to use the time effectively for his own purposes." Under
Section 785.16, this time is not characterized as "hours worked."
The DOL argued, in contrast, that 29 C.F.R. Section 785.18,
governing "rest" periods, applied to the Progressive employees.
Specifically, Section 785.18 provides that "rest periods of short
duration, running from five minutes to about 20 minutes, are
common in industry. They promote the efficiency of the employee
and are customarily paid for as working time. They must be counted
as hours worked."
The court found that Progressive's efforts to transform a specific
situation -- a break of 20 minutes or less -- into the more
general "off duty" situation was "unavailing." The court,
therefore, found that the "rest" period regulation (Section
785.18) applied and "should be enforced on a bright-line basis to
govern the compensability of short day work rest periods of 20
minutes or less taken by Progressive employees." The court noted
that the text of the "rest period" regulation has been unchanged
since it was implemented in 1961 and has been reiterated numerous
times since then. "By ensuring that employees do not have their
wages withheld when they take short breaks of 20 minutes or less
to visit the bathroom, stretch their legs, get a cup of coffee, or
simply clear their head after a difficult stretch of work, the
regulation undoubtedly protects employee health and general well-
being by not dissuading employees from taking such breaks when
they are needed." Because the regulation governs any type of 20-
minute-or-less activity, it "should be applied as a bright-line
rule." That is, any break of 20 minutes or less, for any reason,
should be paid as hours worked.
Individual Liability for Owner
The court further found Progressive's president and CEO,
Edward Satell, to be individually liable under the FLSA because he
retained "final authority for the telemarketer compensation
policies, the telemarketer break policy and . . . he [retained]
the final authority with respect to . . . hiring and firing
decisions on a policy level."
Liquidated Damages Awarded
Finally, Progressive argued that liquidated damages should not be
awarded because it had acted "in good faith and had reasonable
grounds for believing that it was not violating the FLSA." To
support this argument, Progressive noted that it had sought and
obtained the "advice of legal counsel" prior to implementing the
policy in question. However, the company refused to disclose the
"advice" upon which it relied. The court, therefore, awarded
liquidated damages, finding that "where such a legal opinion has
been sought and obtained . . . this court is of the opinion that a
defendant cannot demonstrate that it has acted in good faith
unless it comes forward with at least some evidence that it acted
in conformance with that (or, at the very least, that it has
contravened the legal advice)."
The plain takeaway of the opinion is that hourly employees are to
be paid for breaks of 20 minutes or less under the FLSA. The
secondary takeaway relates to the advice of counsel in such
matters. As the court noted, it would be an absurd result to
reward a company for requesting the advice of counsel and then
(potentially) ignoring such advice while seeking "credit" for
simply asking the question.
AMGEN INC: February 16 Class Action Opt-Out Deadline Set
--------------------------------------------------------
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
IN RE AMGEN INC. SECURITIES LITIGATION
Case No. CV 07-2536 PSG (PLAx)
Honorable Philip S. Gutierrez
SUMMARY NOTICE OF PENDENCY OF CLASS ACTION
To: All persons and entities that purchased the publicly traded
securities of Amgen Inc. during the period from April 22, 2004
through May 10, 2007, inclusive, and were damaged thereby.
YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules
of Civil Procedure and an Order of the United States District
Court for the Central District of California, that the following
class has been certified in the action:
All persons and entities that purchased the publicly traded
securities of Amgen during the period from April 22, 2004 through
May 10, 2007, inclusive, and were damaged thereby. Excluded from
the Class are: (a) Defendants; (b) former Defendants; (c) the
affiliates and subsidiaries of the Company, including the
Company's employee retirement and benefit plan(s); (d) the
officers and directors of the Company and its subsidiaries and
affiliates at all relevant times; (e) members of the immediate
family of any excluded person; (f) the legal representatives,
heirs, successors, and assigns of any excluded person; and (g) any
entity in which any excluded person has or had a controlling
interest.
IF YOU ARE A MEMBER OF THE CLASS, YOUR RIGHTS WILL BE AFFECTED BY
THIS ACTION. A full printed Notice of Pendency of Class Action is
currently being mailed to known Class Members. If you have not
yet received a full printed Notice, you may obtain copies of the
Notice by downloading it from www.amgensecuritieslitigation.com or
by contacting the Administrator:
In re Amgen Inc. Securities Litigation
P.O. Box 4178
Portland, OR 97208-4178
If you did not receive the Notice by mail, and you are a member of
the Class, please send your name and address to the Administrator
so that if any future notices are disseminated in connection with
the Action, you will receive them.
Inquiries, other than requests for the Notice, may be made to
Class Counsel:
Thomas A. Dubbs
Christopher J. McDonald
LABATON SUCHAROW LLP
140 Broadway
New York, NY 10005
www.labaton.com
(888) 219-6877
If you are a Class Member, you have the right to decide whether to
remain a member of the Class. If you choose to remain a member of
the Class, you do not need to do anything at this time other than
retain your documentation reflecting your transactions in Amgen
securities during the period from April 22, 2004 through and
including August 31, 2007. You will automatically be included in
the Class and all orders or judgments in the Action will apply to
you. If you do not wish to remain a member of the Class, you must
take steps to exclude yourself from the Class. If you are a Class
Member and do not exclude yourself from the Class, you will be
bound by the proceedings in the Action, including all past,
present and future orders and judgments of the Court, whether
favorable or unfavorable.
If you ask to be excluded from the Class, you will not be bound by
any order or judgment in the Action, but you will not be eligible
to receive a share of any money which might be recovered for the
benefit of the Class. To exclude yourself from the Class, you
must submit a written request for exclusion postmarked on or
before February 16, 2016 in accordance with the instructions set
forth in the full printed Notice. Pursuant to Rule 23(e)(4) of
the Federal Rules of Civil Procedure, it is within the Court's
discretion whether to allow a second opportunity to request
exclusion from the Class if there is a future settlement in the
Action.
Further information may be obtained by contacting the
Administrator.
Please Do Not Call the Court with Questions.
Dated: December 17, 2015
BY ORDER OF THE COURT
United States District Court
Central District of California
AQUAPHEX TOTAL: SEC Wants Lawyer Fined for Securities Fraud
-----------------------------------------------------------
Angela Neville, writing for Texas Lawyer, reports that last June a
Texas lawyer was charged by the U.S. Securities and Exchange
Commission for allegedly bilking his investors in relation to two
securities offerings, one involving an oil and gas exploration
venture and the other a fracking water filtration business deal.
The case was filed against defendant Gregory G. Jones, a Texas
attorney, and Aquaphex Total Water Solutions in U.S. District
Court for the Northern District of Texas, Fort Worth Division.
Recently in the latest round in the heated litigation, the SEC
filed a motion for summary judgment. In its brief in support of
the motion for summary judgment, the SEC asserts that Mr. Jones
should be ordered to pay the following: a total maximum civil
penalty of $2,530,000, disgorgement of $985,000 and an additional
disgorgement of $480,000, with prejudgment interest of $17,042.39.
As far as the background of the case goes, the SEC in its original
complaint contended that in 2009, Mr. Jones represented a group of
French and Swiss investors that invested approximately $6 million
in an entity called Edwards Exploration. Mr. Jones had an
agreement with Edwards Exploration in which it was to pay
Mr. Jones for performing certain services, including providing due
diligence in connection with the French and Swiss investors'
shares. According to the SEC, Mr. Jones ultimately received
approximately $480,000 under this agreement. But he did not
disclose to the investors that the $480,000 he received came from
the investors' principal, the SEC contended.
The SEC also alleged in the complaint that from the summer of 2013
through at least the summer of 2014, Mr. Jones offered and sold
securities issued by Aquaphex -- purportedly in business to
recycle fracking water -- raising approximately $645,000 from nine
investors. According to the SEC, Aquaphex investment documents
contained false statements, including claims that Aquaphex could
be worth $21 billion in five years and that investors stood to
make more than 115 percent per year on their investments.
Originally the SEC had named Aquaphex as a defendant in its
complaint and then on Sept. 21, U.S. District Judge John McBryde
issued an order and final judgment dismissing SEC's claims against
Aquaphex in this case, except to the extent SEC's claims against
Aquaphex had not previously been resolved by the June 25, 2015,
final judgment granting temporary injunction issued by the court.
According to the order, "The dismissal was ordered because of
repeated failures of SEC to comply with orders of the court
directing it to either file proof of proper service of summons on
Aquaphex or an instrument containing a satisfactory explanation,
in affidavit form, as to why such proof could not be filed."
In addition, Judge McBryde ruled in an order issued Oct. 28 the
postponement of disposition of the motion to dismiss filed by
Jones on Sept. 22 until trial, or to such earlier date as the
court might order.
James Mosser, founder of the Plano firm of Mosser Law who is
representing Mr. Jones, said, "The SEC is way off base with this
prosecution," Mr. Mosser said. "If the SEC can't tell the
difference between stupid and crooked, they shouldn't be
prosecuting."
According to Mr. Mosser, the SEC rules are very arcane and fraught
with difficulty as far as trying to comply with them. He said
Judge McBryde has done a good job presiding over the case.
Timothy McCole and James Etri, the SEC prosecutors based in the
agency's Fort Worth office, did not return a call for comment.
Judith Burns, SEC spokesperson, declined to comment beyond what
the SEC has said in its filings and other public records.
BARCLAYS BANK: Faces "Value Recovery" Suit Over Limit Orders
------------------------------------------------------------
Value Recovery Fund, LLC v. Barclays Bank PLC and Barclays
Capital, Inc., Case No. 1:15-cv-09486-UA (S.D.N.Y., December 3,
2015) is an action for damages as a result of Barclays' practice
of reneging on its limit orders offered through its own or third-
party electronic trading platforms.
The Defendants operate a banking and financial services company.
The Plaintiff is represented by:
Andrew J. Entwistle, Esq.
Vincent R. Cappucci, Esq.
Robert N. Cappucci, Esq.
ENTWISTLE & CAPPUCCI, LLP
280 Park Avenue, 26th Floor West
New York, NY 10017
Telephone: (212) 894-7200
Facsimile: (212) 894-7272
E-mail: aentwistle@entwistle-law.com
vcappucci@entwistle-law.com
rcappucci@entwistle-law.com
BATH & BODY: "Broadstone" Class Suit Removed to C.D. California
---------------------------------------------------------------
The class action lawsuit styled Shayna Broadstone, Kristine
Billon, an individual, on behalf of themselves and all others
similarly situated v. Bath & Body Works, LLC, et al., 30-02015-
00815418 was removed from the Orange County Superior Court to the
U.S. District Court for the Central District of California
(Southern Division - Santa Ana). The District Court Clerk assigned
Case No. 8:15-cv-01994-CJC-JCG to the proceeding..
The Plaintiffs assert labor-related claims.
Bath & Body Works, LLC is a specialty retailer of personal care
products and home fragrance.
The Plaintiff is represented by:
Jason M. Frank, Esq.
Scott Howard Sims, Esq.
EAGAN AVENATTI LLP
520 Newport Center Drive Suite 1400
Newport Beach, CA 92660-7617
Telephone: (949) 706-7000
Facsimile: (949) 706-7050
E-mail: jfrank@eaganavenatti.com
ssims@eaganavenatti.com
- and -
Michael H. Artinian, Esq.
Richard Kevin Bridgford, Esq.
BRIDGFORD GLEASON AND ARTINIAN
26 Corporate Plaza Drive, Suite 250
Newport Beach, CA 92660
Telephone: (949) 831-6611
Facsimile: (949) 831-6622
E-mail: mike.artinian@bridgfordlaw.com
richard.bridgford@bridgfordlaw.com
- and -
Michael J. Kent, Esq.
Patrick McNicholas, Esq.
MCNICHOLAS AND MCNICHOLAS LLP
10866 Wilshire Boulevard Suite 1400
Los Angeles, CA 90024
Telephone: (310) 474-1582
Facsimile: (310) 475-7871
E-mail: mjk@mcnicholaslaw.com
pmc@mcnicholaslaw.com
The Defendant is represented by:
Beth A. Gunn, Esq.
Jennifer Lindsay Katz, Esq.
Lori A. Bowman, Esq.
Alexander Miller Chemers, Esq.
OGLETREE DEAKINS NASH SMOAK AND STEWART PC
400 South Hope Street 12th Floor
Los Angeles, CA 90071
Telephone: (213) 239-9800
Facsimile: (213) 239-9045
E-mail: beth.gunn@ogletreedeakins.com
jennifer.katz@ogletreedeakins.com
lori.bowman@ogletreedeakins.com
alexander.chemers@ogletreedeakins.com
BISCO INC: "Fulton Dental" Suit Alleges TCPA Violation
------------------------------------------------------
Fulton Dental, LLC, and all others similarly situated v. Bisco,
Inc., Case No. 1:15-cv-11038 (N.D. Ill., December 8, 2015), is
brought against the Defendant for wholesale issuance of junk faxes
in violation of the Telephone Consumer Protection Act.
The Defendant pioneered dental adhesion technology with its
flagship products, ALL-BOND 2 and ONE-STEP. It is a domestic
corporation located at 1100 West Irving Park Road in Schaumburg,
Illinois 60193.
The Plaintiff is represented by:
Alexander H. Burke, Esq.
BURKE LAW OFFICES, LLC
155 North Michigan Avenue, Ste 9020
Chicago, IL 60601
Tel: (312) 729-5288
Fax: (312) 729-5289
E-mail: aburke@burkelawllc.com
BLOOMIN BRANDS: Faces "Hise" Suit in Ill. Over ADA Violation
------------------------------------------------------------
Michele Van Hise, individually and on behalf of all others
similarly situated v. Bloomin Brands Inc., Case No. 2:15-cv-02285
-HAB (C.D. Ill., December 3, 2015) is brought against the
Defendant for violation of the Americans with Disabilities Act.
Bloomin Brands Inc. operates a hospitality industry company that
owns several American casual dining restaurant chains.
The Plaintiff is represented by:
Matthew H. Armstrong, Esq.
ARMSTRONG LAW FIRM LLC
8816 Manchester Road
St. Louis, MO 63144
Telephone: (314) 258-0212
E-mail: matt@mattarmstronglaw.com
- and -
Benjamin J. Sweet, Esq.
Stephanie K. Goldin, Esq.
CARLSON LYNCH SWEET & KILPELA LLP
5th Floor, 1133 Penn Avenue
Pittsburgh, PA 15222
Telephone: (412) 322-9243
Facsimile: (412) 231-0246
BRITISH COLUMBIA, CA: Workers, Families Seek Class Status of Suit
-----------------------------------------------------------------
The Canadian Press reports that ten people connected to a pair of
deadly sawmill explosions in British Columbia are asking a judge
to certify a class-action lawsuit seeking damages for physical and
mental injuries.
The separate blasts in 2012 killed four workers and injured 42
people at Babine Forest Products in Burns Lake and Lakeland Mills
in Prince George.
A notice of civil claim named the Workers Compensation Board of
B.C. and the provincial government.
In a statement, Scott McCloy with WorkSafeBC said the agency had
no immediate comment on the allegations.
Patrick Michell was inside the Babine mill when it blew up in
January 2012. He and nine others are seeking general, special and
punitive damages, as well as declarations that WorkSafe's
inspections and investigations were negligent.
"The class members trusted WorkSafe to take all reasonable steps
to ensure the safety of the mills and to competently investigate
the explosions," the statement of claim said.
"By failing in both respects, WorkSafe betrayed the class members'
trust, denied them justice for their suffering and for the
suffering and deaths of their loved ones, undermined their faith
in government and robbed them of the sense of security and safety
that a trustworthy and competent system of prevention and
deterrence provides."
Michell represents one of six classes of plaintiffs, including
workers who were in the two mills when fire tore through them.
Workers who were off-shift, and family members of on- and off-
shift workers at both locations are also represented.
They allege WorkSafeBC ignored its legal duty to represent
workers' interests.
The allegations have yet to be tested in court.
Many workers were out of work for months following the explosions,
which the claim said were caused by combustible wood dust in
levels that WorkSafe had identified as unsafe months or years
earlier.
"At no time prior to the Babine explosion did WorkSafe issue
Babine Forest Products any orders or administrative penalties in
respect of combustible wood dust."
It also referenced at least 24 separate inspections of the Prince
George mill in the years leading up to the April 2012 explosion,
with each inspection uncovering unacceptable levels of wood dust,
yet producing no WorkSafe orders to clean up.
"WorkSafe's conduct was reckless and departed to a very marked
degree from the standard of conduct expected of a responsible and
competent inspector," the claim said.
Michell suffered permanent paralysis and burns to 37 per cent of
his body in the Babine blast, while Lakeland worker Bruce Germyn
endured a brain injury and burns to 35 per cent of his body.
Workers who were not on the job on the night of the tragedies
report mental distress and anxiety, while family members such as
Sidney, B.C., resident John Little, whose son died in the Lakeland
explosion, still deal with anxiety, distress and loss of enjoyment
of life, the claim said.
Under the Workers Compensation Act, the claim said employees
cannot sue an employer and must rely on WorkSafe to protect their
interests.
WorkSafeBC and the province have three weeks to respond to the
allegations.
BUFFALO BILLS: Cheerleaders Obtain Class Status in Wage Suit
------------------------------------------------------------
Joel Stashenko, writing for New York Law Journal, reports that a
judge has granted class status to former cheerleaders suing the
Buffalo Bills for allegedly paying them below minimum wage.
Considering the matter as a class action "would be a far more
efficient means of litigation as opposed to a multitude of
individual lawsuits," Erie County Supreme Court Justice Timothy
Drury ruled in Ferrari v. Mateczun, 804125-2014.
The former Buffalo "Jills" claim they received just 20 or 30 cents
an hour when rehearsal time, public appearances and other duties
were factored in, far below the state's average $8 hourly minimum
wage.
Class status was given to Jills who worked for the team starting
in April 2008 and for all or part of the six seasons ending in
2013. The Bills have acknowledged issuing security credentials to
134 individuals believed to have been on the squad during that
period, Justice Drury said.
The team argued that it contracted out responsibility for the
cheerleading squad to Citadel Communications Co., later Stejon
Productions Corp., and that the team neither paid the cheerleaders
nor set the terms of their employment.
Justice Drury gave the team 21 days to provide more information
about the individuals who may qualify as class members.
Christopher Marlborough -- Chris@marlboroughlawfirm.com -- of
Melville and partners Sean Cooney -- scooney@dolcepanepinto.com --
Frank Dolce -- fdolce@dolcepanepinto.com -- and Marc Panepinto --
mpanepinto@dolcepanepinto.com -- of Dolce Panepinto in Buffalo are
among the attorneys representing the cheerleaders.
Stephanie Mateczun, supervisor of the cheerleading squad, is
represented by Dennis Vacco, the former state attorney general who
is partner at Lippes Mathias Wexler Friedman in Buffalo.
Partner Jeffrey Reina -- jreina@lglaw.com -- of Lipsitz Green
Schime Cambria in Buffalo is representing the Bills and Steven
Hurd -- shurd@proskauer.com -- a partner at Proskauer Rose, is
representing the National Football League.
CAVALRY PORTFOLIO: Illegally Collects Debt, "Fekete" Suit Claims
----------------------------------------------------------------
Hershel Fekete, on behalf of himself and all other similarly
situated consumers v. Cavalry Portfolio Services, LLC, Case No.
1:15-cv-06819 (E.D.N.Y., November 30, 2015) seeks to stop the
Defendant's unfair and unconscionable means to collect a debt.
Cavalry Portfolio Services, LLC operates a financial services
company specializing in debt recovery and debt management.
The Plaintiff is represented by:
Adam Jon Fishbein, Esq.
ADAM J. FISHBEIN, ATTORNEY AT LAW
483 Chestnut Street
Cedarhurst, NY 11516
Telephone: (516) 791-4400
Facsimile: (516) 791-4411
E-mail: fishbeinadamj@gmail.com
CAVALRY PORTFOLIO: "Santiago" Suit Removed to N.J. Dist. Ct.
------------------------------------------------------------
The class action lawsuit captioned Norma I. Santiago, on behalf of
herself and those similarly situated v. Cavalry Portfolio
Services, LLC, Cavalry SPV I, LLC, and John Does 1 to 10, Case No.
MID-L-004291-15, was removed from the Superior Court of New
Jersey, Middlesex County-Law to the U.S. District Court District
of New Jersey (Newark). The District Court Clerk assigned Case No.
2:15-cv-08332-KM-MAH to the proceeding.
The Plaintiff asserts claims for violation of the Fair Debt
Collection Practices Act.
The Defendants operate a financial services company specializing
in debt recovery and debt management.
The Plaintiff is represented by:
Yongmoon Kim, Esq.
KIM LAW FIRM LLC
411 Hackensack Ave 2 Fl.
Hackensack, NJ 07601
Telephone: (201) 273-7117
Facsimile: (201) 273-7117
E-mail: ykim@kimlf.com
The Defendant is represented by:
Thomas R. Dominczyk, Esq.
MAURICE WUTSCHER, LLP
5 Walter E. Foran Boulevard, Suite 2007
Flemington, NJ 08822-4672
Telephone: (908) 237-4550
E-mail: tdominczyk@mauricewutscher.com
CERTEGY CHECK: Sued Over Inaccurate Consumer Information
--------------------------------------------------------
Michael Alexander, on behalf of himself and all others similarly
situated v. Certegy Check Services, Inc., Case No. 1:15-cv-02108-
JEB (D.C., December 4, 2015) is brought against the Defendant for
failure to maintain reasonable procedures to ensure the accuracy
of consumer information it provides to merchants to whom it makes
check authorization recommendations and failure to follow proper
dispute procedures to allow consumers whose checks are denied to
exercise their statutory right to dispute the accuracy of the
information upon which the decision to decline their checks is
based.
Certegy Check Services, Inc. is one of the largest check
authorization service companies in the United States.
The Plaintiff is represented by:
Steven W. Teppler, Esq.
ABBOTT LAW GROUP, P.A.
2929 Plummer Cove Road
Jacksonville, FL 32223
Telephone: (904) 292-1111
Facsimile: (904) 292-1220
E-mail: steppler@abbottlawpa.com
- and -
John A. Yanchunis, Esq.
Marcio W. Valladares, Esq.
Patrick A. Barthle, Esq.
MORGAN & MORGAN COMPLEX LITIGATION GROUP
201 North Franklin Street, 7th Floor
Tampa, FL 33602
Telephone: (813) 223-5505
Facsimile: (813) 223-5402
E-mail: jyanchunis@forthepeople.com
mvalladares@forthepeople.com
pbarthle@forthepeople.com
CONVERGENT OUTSOURCING: Illegally Collects Debt, Action Claims
--------------------------------------------------------------
Chaim Stark, on behalf of himself and all other similarly situated
consumers v. Convergent Outsourcing, Inc., Case No. 1:15-cv-06820
(E.D.N.Y., November 30, 2015) seeks to stop the Defendant's unfair
and unconscionable means to collect a debt.
Convergent Outsourcing, Inc. operates a debt collection agency in
New York.
Chaim Stark is a pro se plaintiff.
DANNON COMPANY: Loses Bid to Halt Chobani Advertising Claims
------------------------------------------------------------
Joel Stashenko, writing for New York Law Journal, reports that a
federal judge has denied Dannon's request for a temporary
restraining order to halt new advertising claims by Chobani, one
of its chief rivals for the U.S. Greek yogurt market.
However, Northern District of New York Judge David Hurd set
Jan. 19 for the hearing on Dannon's motion for a preliminary
injunction.
Dannon, citing the federal Lanham Act and state business law, is
challenging the claims Chobani is making about a new product,
"Chobani Simply 100 Greek Yogurt."
Chobani's advertising says the product is the only reduced-calorie
Greek yogurt on the U.S. market that does not contain artificial
sweeteners or preservatives.
Dannon is arguing that those claims are false because its "Light &
Fit Greek Yogurt" also has a reduced calorie count over regular
yogurt. Chobani maintains, however, that Dannon's "Light & Fit"
product contains sucralose, which Chobani calls an artificial
sweetener.
In an order issued on Jan. 11 in Chobani v. The Dannon Company,
3:16-cv-00030, Judge Hurd said Dannon failed to establish its
entitlement to a temporary restraining order to stop Chobani
advertising for "Simply 100 Greek Yogurt," but said Dannon may
argue for a preliminary injunction.
Dannon is represented by Marcella Ballard, a Venable partner in
Manhattan, and Chaim Jaffe, a shareholder at Scolaro Fetter
Grizanti McGough & King in Syracuse.
Julia Huston, partner at Foley Hoag in Boston, is representing
Chobani.
Both companies maintain that the Northern District is the proper
venue. Chobani is headquartered in Norwich, New York, which is
within the district, and Chobani and Dannon, which is based in
White Plains, transact business in the Northern District.
DEX MEDIA: Bid to Dismiss Amended Fulmer Complaint Pending
----------------------------------------------------------
Dex Media, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on November 6, 2015, for the
quarterly period ended September 30, 2015, that a motion to
dismiss the amended complaint remains pending in the case, Bruce
Fulmer, et al. v. Scott W. Klein, Donald B. Reed, Stephen L.
Robertson, Thomas S. Rogers, Paul E. Weaver, John J. Mueller,
Jerry V. Elliott, Samuel D. Jones, Katherine J. Harless, The
Employee Benefits Committee, Georgia Scaife, William Gist, Steven
Garberich, Clifford Wilson, Bill Mundy, Andrew Coticchio, the
Human Resources Committee and John Does 1-20; Case No. 3:09-cv-
2354-N.
On December 10, 2009, Bruce Fulmer, a former Idearc Media employee
who has a history of litigation against the Company, individually
and behalf of others allegedly similarly situated ("Plaintiff"),
filed a putative class action in the United States District Court
for the Northern District of Texas (Dallas Division), against
certain officers, directors and members of the Company's Executive
Benefits Committee ("Defendants"). Plaintiff claims Defendants
breached fiduciary duties in violation of ERISA in administrating
various savings plans from November 17, 2006 to March 31, 2009 and
seeks to recover losses to the plans.
On April 1, 2010, Randy Kopp, another former Idearc Media employee
filed a similar case, which has been consolidated with the Fulmer
matter.
Plaintiffs originally alleged, among other claims, that Defendants
breached a duty of prudence, duty of loyalty, and duty to monitor
by wrongfully allowing all the plans to invest in Idearc's common
stock.
On March 16, 2011, the Court granted the Defendants' Motion to
Dismiss the consolidated Complaint, and on March 15, 2012,
following amendment, the Court again granted the Defendants'
Motion to Dismiss.
On July 9, 2013, the U.S. Court of Appeals for the Fifth Circuit
affirmed the dismissal. On July 1, 2014, the U.S. Supreme Court
granted Plaintiffs' petition for certiorari, vacated the judgment,
and remanded for further consideration.
On August 7, 2014, the Court of Appeals for the Fifth Circuit
remanded to the District Court.
On February 17, 2015, Plaintiffs filed a Second Amended
Consolidated Complaint, reasserting claims based on allowing plans
to invest in Idearc common stock. Plaintiffs seek unspecified
compensatory damages and reimbursement for litigation expenses.
On April 1, 2015, Defendants moved to dismiss the Amended
Complaint, which is currently pending before the District Court.
SuperMedia intends to honor its indemnification obligations and
vigorously defend the allegations on behalf of Defendants.
DSW INC: "Gunther" Suit Alleges FCRA Violation
----------------------------------------------
Patrick Gunther, and all others similarly situated v. DSW Inc.,
Case No. 2:15-cv-01461 (E.D. Wis., December 8, 2015), is brought
against the Defendant for failing to provide required disclosures
prior to procuring background reports on applicants and employees
in violation of the Fair Credit Reporting Act.
DSW Inc., formerly Designer Shoe Warehouse, is a specialty branded
footwear retailer, headquartered in Columbus, Ohio.
The Plaintiff is represented by:
E. Michelle Drake, Esq.
NICHOLS KASTER, PLLP
80 South Eighth Street
Minneapolis, MN 55402
Tel: (612) 256-3200
Fax: (612) 215-6870
E-mail: drake@nka.com
EOS LIP BALM: Facing New Challenge in Court
-------------------------------------------
Amy Feinstein, writing for The Inquisitr News, reports that the
ultra popular EOS Lip Balm, which appeared in many Christmas
stockings this holiday season, is facing a new challenge, and this
one is in court. A class action suit has been filed, and the
plaintiffs are claiming that the popular beauty product caused
serious damage to their lips and the skin around their mouths. EOS
Lip Balm, which comes in colorful egg shaped cases and fun
flavors, appeal to young girls and up, and are sold in shops
including Target and chain pharmacies everywhere.
According to TMZ, EOS Lip Balm counts Britney Spears and Kim
Kardashian as its brand ambassadors. Users have complained of
blistering, bleeding, cracking skin, and a loss of pigmentation.
Rachael Cronin has filed the suit, claiming that her experience
was horrible. "Within hours of applying the balm, her lips felt
like sandpaper, so she applied it again. She claims her lips
started cracking, flaking and bleeding, creating blisters and
rashes which lasted 10 days." Power lawyer Mark Geragos has filed
this suit, looking for damages, and corrected advertising or
formulation.
The issue, according to dermatologists, can be the flavoring in
addition to the beeswax base, which is an allergen to many people,
according to Zi Zai Dermatology. The condition caused by these
products is called Recurrent Lip Rash, or Cheilitis, according to
Diana Hermann, an acupuncturist who is also board certified in
Chinese medicine.
"The general condition of inflamed lips is called cheilitis and
the symptoms can include lip swelling, redness, itchiness,
stinging/burning, oozing, crusting, peeling, and/or flaking.
Cheilitis can develop in patients with Crohn's disease, it can
develop after chronic sun damage (solar cheilitis) or it can
result as an allergic reaction to certain drugs."
More common is Cheilitis caused by allergic reactions to
flavorings like Vanillin and mint (in several flavors of the EOS
lip balm), as well as beeswax, which is the base of EOS lip balm.
If you have this reaction to EOS lip balm or any other product,
the best thing to do is stop using them immediately, and after
thoroughly cleaning your lips and skin with mild soap and warm
water. Then apply something like Aquafor, which only has the
ingredients of petroleum, jelly and water. Contact your doctor if
you don't see improvement, as you might need a steroid ointment.
Cosmetics websites and blogs have included complaints for over a
year about EOS lip balms.
ESPERION THERAPEUTICS: Robbins Geller Files Securities Suit
-----------------------------------------------------------
A class action has been commenced in the United States District
Court for the Eastern District of Michigan on behalf of purchasers
of Esperion Therapeutics, Inc. ("Esperion") (NASDAQ: ESPR) common
stock during the period between August 18, 2015 and September 28,
2015 (the "Class Period").
The complaint charges Esperion and its Chief Executive Officer
with violations of the Securities Exchange Act of 1934. Esperion
is a pharmaceutical company that focuses on developing and
commercializing oral low-density lipoprotein cholesterol ("LDL-
cholesterol") lowering therapies for patients with
hypercholesterolemia. Esperion's lead product candidate is ETC-
1002, a once-daily small molecule designed to lower LDL-
cholesterol levels. According to Esperion, ETC-1002 is designed
to lower LDL-cholesterol while avoiding the side effects
associated with other LDL-cholesterol lowering therapies on the
market.
The complaint alleges that during the Class Period, defendants
issued false and misleading statements and/or failed to disclose
adverse information regarding Esperion's business and prospects,
including that there was no clear path to approval for ETC-1002,
and that the FDA had encouraged the Company to initiate a
cardiovascular outcomes trial ("CVOT") and that completion of a
CVOT could be necessary prior to approval of ETC-1002. As a
result of these false statements and/or omissions, Esperion common
stock traded at artificially inflated prices during the Class
Period, reaching as high as $82 per share in intra-day trading.
On August 17, 2015, Esperion reported to investors material events
from an early August 2015 meeting with the FDA regarding the next
phase of the approval process for ETC-1002. The Company stated
that during the meeting it was informed by the FDA that the
Company would not have to complete a CVOT to gain approval of ETC-
1002. Esperion also informed investors that it had a "'clear
regulatory path forward for development and approval of ETC-
1002.'"
Then, a little over a month later, after the market closed on
September 28, 2015, the complaint alleges that Esperion reversed
course about the early August 2015 FDA meeting -- stating in a
September 28, 2015 news release that the FDA had actually
"encouraged the Company to initiate a cardiovascular outcomes
trial promptly" and it may be necessary to have a completed CVOT
prior to approval. Investors immediately recognized the
differences in the two characterizations of the same meeting and
reacted accordingly. When the market closed on September 28, 2015,
Esperion stock was trading at $35.09 per share. After the market
closed, the Company revealed the truth and the next day Esperion's
stock opened at $26.00 per share. By the time the market digested
the truth on September 29, 2015, the price of Esperion stock had
fallen almost 50% from its previous close to $18.33 per share on
unusually high volume.
Plaintiff seeks to recover damages on behalf of all purchasers of
Esperion common stock during the Class Period (the "Class"). The
plaintiff is represented by Robbins Geller, which has extensive
experience in prosecuting investor class actions including actions
involving financial fraud.
FEDEX GROUND: Faces "Ricks" Suit for Sex Discrimination of Driver
-----------------------------------------------------------------
Tiffaney J. Ricks and TJR Trucking, Inc., v. Fedex Ground Package
System, Inc. a/k/a Fedex Home Delivery a/k/a Fedex Ground, Case
1:15-cv-01111-RP (W.D.Tex., December 9, 2015), is a suit for sex
discrimination filed by a female delivery driver allegedly
misclassified as independent contractor.
FedEx Ground provides ground delivery of small packages throughout
the US and Canada.
The Plaintiff is represented by:
James R. (Jim) Dunnam, Esq.
DUNNAM & DUNNAM
4125 West Waco Drive
Waco, TX 76710
Phone: (254)753-6437
Fax: (254)753-7434
E-mail: jimdunnam@dunnamlaw.com
- and -
Danny C. Wash, Esq.
WASH & THOMAS
6613 Sanger Ave.
Waco, TX76710
Phone: (254) 776-3611
Fax: (254) 776-9217
E-mail: danwash@washthomas.com
FITBIT: Hit With New Investor Suit Over Alleged Fraud
-----------------------------------------------------
Jeff John Roberts, writing for Fortune, reports that Fitbit is in
hot water with consumers over allegations its tech doesn't work as
advertised. Now, investors are unhappy too.
It's going from bad to worse for Fitbit. Consumers sued the maker
of fitness trackers over claimed inaccuracies in its heart rate
monitor, prompting a sell-off of its shares. Now the company has a
new headache.
On Jan. 11, an investor filed a class action suit against Fitbit
in California over alleged "fraud on the market" and U.S.
securities law violations.
The lawsuit seeks compensation for anyone who purchased Fitbit
shares during the company's IPO last summer when stories about the
allegedly inaccurate heart monitor hit the press. The complaint
points to the stock's fall of $1.20, or 5.8%, on January 6 to show
the impact of the news.
"As a result of Defendants' false and/or misleading statements,
Fitbit securities traded at inflated prices. However, after
disclosure of Defendant' false and/or misleading statements,
Fitbit's stock suffered a precipitous decline in market value,
thereby causing significant losses and damages to Plaintiff and
other Class members."
According to the complaint, Fitbit executives made "false and
misleading" statements about the company's heart monitor
technology to the media and in regulatory filings. The technology
has come under scrutiny in light of the consumer complaint, which
included allegations by a cardiologist that Fitbit's heart monitor
consistently posts inaccurate results.
In response to questions from Fortune about the claimed
inaccuracies, the company insisted its technology works as
claimed, and vowed to fight the consumer lawsuit. As for the new
investor case, a Fitbit spokesperson said: "We have reviewed the
complaint and believe it is meritless. We intend to defend this
case vigorously."
Such shareholder lawsuits alleging "fraud on the market" are not
uncommon after companies take a public relations hit, and are
typically settled quietly.
FTD COMPANIES: Appeal of Deal in EasySaver Rewards Case Pending
---------------------------------------------------------------
An objector's appeal from the approval of a settlement in the
case, EasySaver Rewards Litigation, remains pending, FTD
Companies, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on November 6, 2015, for the
quarterly period ended September 30, 2015.
Commencing on August 19, 2009, the first of a series of consumer
class action lawsuits was brought against Provide Commerce, Inc.
and co-defendant Regent Group, Inc. d/b/a Encore Marketing
International ("EMI"). These cases were ultimately consolidated
during the next three years into Case No. 09 CV 2094 in the United
States District Court for the Southern District of California
under the title In re EasySaver Rewards Litigation.
Plaintiffs' claims arise from their online enrollment in
subscription based membership programs known as EasySaver Rewards,
RedEnvelope Rewards, and Preferred Buyers Pass (collectively the
"Membership Programs"). Plaintiffs claim that after they ordered
items from certain of Provide Commerce's websites, they were
presented with an offer to enroll in one of the Membership
Programs, each of which is offered and administered by EMI.
Plaintiffs purport to represent a putative nationwide class of
consumers allegedly damaged by Provide Commerce's purported
unauthorized or otherwise allegedly improper transferring of the
putative class members' billing information to EMI, who then
posted allegedly unauthorized charges to their credit or debit
card accounts for membership fees for the Membership Programs.
On February 22, 2010, Provide Commerce and EMI respectively filed
motions to dismiss. On August 13, 2010, the court entered an order
granting in part and denying in part the motions. Between August
13, 2010 and December 2011, plaintiffs filed various amended
complaints and added or dismissed certain named plaintiffs.
Plaintiffs filed the fourth amended complaint on December 14,
2011. The fourth amended complaint is the operative complaint.
Plaintiffs assert ten claims against Provide Commerce and EMI in
the fourth amended complaint: (1) breach of contract (against
Provide Commerce only); (2) breach of contract (against EMI only);
(3) breach of implied covenant of good faith and fair dealing; (4)
fraud; (5) violations of the California Consumers Legal Remedies
Act; (6) unjust enrichment; (7) violation of the Electronic Funds
Transfer Act (against EMI only); (8) invasion of privacy; (9)
negligence; and (10) violations of the Unfair Competition Law.
Plaintiffs assert their claims individually and on behalf of a
putative nationwide class. Plaintiffs sought damages, attorneys'
fees, and costs. Provide Commerce and EMI filed motions to dismiss
the claims of plaintiffs Lawler, Walters, Cox, and Dickey on
January 24, 2012. The motions to dismiss were fully briefed as of
February 23, 2012, but the court had not yet conducted a hearing
or ruled on the motions. The parties participated in numerous
settlement conferences and mediations throughout the case in an
effort to resolve this matter.
On April 9, 2012, the parties reached an agreement on the high
level terms of a settlement, conditioned on the parties
negotiating and executing a complete written agreement. In the
weeks following April 9, 2012, the parties negotiated a formal
written settlement agreement ("Settlement"). Upon reaching the
Settlement, the hearing on the motions to dismiss was vacated, and
Provide Commerce and EMI have not answered the fourth amended
complaint in light of the Settlement. The court granted the
plaintiffs' unopposed motion for preliminary approval of the
Settlement on June 13, 2012.
After notice to the class and briefing by the parties, the court
conducted a final approval hearing (also known as a fairness
hearing) on January 28, 2013, and took the matter under submission
at the conclusion of the hearing. On February 4, 2013, the court
entered its final order approving class action settlement,
granting plaintiffs' motion for attorneys' fees, costs, and
incentive awards, and overruling objections filed by a single
objector to the Settlement. The court entered judgment on the
settlement on February 21, 2013.
The objector filed a notice of appeal with the Ninth Circuit Court
of Appeals on March 4, 2013. After the completion of briefing, the
Ninth Circuit set oral argument on the appeal for February 2,
2015. But on January 29, 2015, the Ninth Circuit entered an order
deferring argument and resolution of the appeal pending the Ninth
Circuit's decision in a matter captioned Frank v. Netflix, No. 12
15705+.
The Ninth Circuit issued its opinion in Frank v. Netflix, No. 12
15705+ on February 27, 2015, affirming the district court's
approval of a settlement between Walmart and a class of Netflix
DVD subscribers. On March 19, 2015, the Ninth Circuit entered an
order vacating the judgment in this matter and remanding it to the
district court for further proceedings consistent with Frank v.
Netflix.
The Ninth Circuit's mandate issued on April 14, 2015, and the
matter is now pending before the district court to consider final
approval of the Settlement in light of Frank v. Netflix. On April
23, 2015, the district court entered an order reopening the case
and ordering the parties to jointly submit a memorandum
summarizing the import of the Frank v. Netflix decision and
stating their intentions going forward. On May 4, 2015, such
memorandum was filed by the parties and the objector also filed
his own memorandum regarding these same topics on such date. After
receiving the parties and objector's memoranda, the district court
ordered supplemental briefing on the issue of final settlement
approval on May 21, 2015.
The parties filed their respective opening supplemental briefs on
June 18, 2015, the objector filed his opposition supplemental
brief on July 2, 2015, and the parties filed their respective
reply supplemental briefs on July 16, 2015. The district court has
not yet set the hearing date for the pending final settlement
approval motion.
FXFL LLC: Faces "Auffray" Suit Over Failure to Pay Overtime Wages
-----------------------------------------------------------------
Kyle Auffray and John Jenkins, on behalf of themselves and all
others similarly situated v. FXFL, LLC, Brian Patrick Woods, and
Alan Pace, Case No. 1:15-cv-09379 (S.D.N.Y., November 30, 2015) is
brought against the Defendants for failure to pay overtime wages
in violation of the Fair Labor Standard Act.
FXFL, LLC is a professional football league.
Kyle Auffray and John Jenkins are pro se plaintiffs.
G4S YOUTH: "Torres" Suit Seeks to Recover Unpaid Overtime Wages
---------------------------------------------------------------
Jerry Torres, Timothy Manus, and Gene Rushing, on behalf of
themselves and all others similarly situated v. G4S Youth
Services, LLC, Case No. 8:15-cv-02779-MSS-EAJ (M.D. Fla., December
3, 2015) seeks to recover unpaid overtime wages and damages
pursuant to the Fair Labor Standard Act.
G4S Youth Services, LLC operates juvenile justice facilities
across the United States, including multiple locations in Florida.
The Plaintiff is represented by:
Donna V. Smith, Esq.
WENZEL FENTON CABASSA, P.A.
1110 North Florida Avenue, Suite 30
Tampa, FL 33602
Telephone: (813) 224-0431
Facsimile: (813) 229-8712
E-mail: dsmith@wfclaw.com
bhollister@wfclaw.com
GC SERVICES: Faces "Jeanbaptiste" Suit for Debt Collection Act
--------------------------------------------------------------
Jahpheth J. JeanBaptiste, on behalf of himself and all others
similarly situated, v. GC Services Limited Partnership, and John
Does 1-25, Case 1:15-cv-07030-RRM-RER (E.D.N.Y., December 9,
2015), was filed on behalf of a class of New York consumers
seeking redress for Defendant's alleged illegal practices, in
connection with the collection of a debt allegedly owed by
Plaintiff in violation of the Fair Debt Collection Practices Act.
Defendant is a company that uses the mail, telephone, and
facsimile and regularly engages in business the principal purpose
of which is to attempt to collect debts alleged to be due another.
Defendant is a "debt collector."
The Plaintiff is represented by:
Alan J. Sasson, Esq.
LAW OFFICE OF ALAN J. SASSON, P.C.
2687 Coney Island Avenue, 2nd Floor
Brooklyn, NY 11235
Phone: (718) 339-0856
Fax: (347) 244-7178
GENERAL MOTORS: Jury Selection in Ignition-Switch Case Completed
----------------------------------------------------------------
Mark Hamblett, writing for New York Law Journal, reports that a
jury has been selected to decide whether General Motors should be
held liable for a faulty ignition switch that allegedly caused a
car's power to shut down and prevent air bags from deploying in an
accident.
Attorneys for the automaker and plaintiff Robert Scheuer completed
jury selection on Jan. 11 before Southern District Judge Jesse
Furman, setting the stage for opening arguments on Jan. 12.
Mr. Scheuer's 2003 Saturn Ion ran off the road in Bristow,
Oklahoma in 2014 and slammed into some trees, leaving him with
serious back injuries. Mr. Scheuer, represented by Robert
Hilliard of Hilliard Munoz Gonzales of Corpus Christi, Texas,
claims the car lost power after the ignition switch inadvertently
moved to the "off" position and that his air bags were never
triggered.
GM, represented by Kirkland & Ellis partners Richard Godfrey and
Andrew Bloomer, argue that the air bags would not have deployed in
the kind of accident in which Scheuer was involved, and there was
no indication that the ignition switch played any role.
The Scheuer case is the first of six bellwether trials before GM,
which was forced to issue a series of recalls in 2014.
GENERAL MOTORS: Bellwether Ignition-Switch Trial Begins
-------------------------------------------------------
Mark Hamblett, writing for New York Law Journal, reports that
plaintiff Robert Scheuer is either the victim of a heartless
General Motors cover-up of faulty ignition switches or a man
trying to blame GM for injuries he suffered long before his 2014
car crash in Oklahoma, attorneys argued on Jan. 12.
These competing portrayals were unveiled in Southern District
Judge Jesse Furman's courtroom during opening arguments in the
first of six bellwether trials that are expected to set the value,
if any, for more than 300 cases consolidated in Manhattan.
"Where else can a mailman from Oklahoma go toe-to-toe with a
company like General Motors and have his day in court?"
Mr. Scheuer lawyer Robert Hilliard asked the jury. He told jurors
that, in four weeks' time, they had the opportunity to deliver a
"verdict of national significance."
Mr. Hilliard then had Mr. Scheuer stand with his wife, Lisa, and
their 5- and 11-year-old daughters, arms around each other. Both
of the girls were holding dolls and smiling.
Mr. Scheuer said the trial would "unwind the cover-up and the
fraud at General Motors," and he showed pictures of an active
pre-accident Scheuer golfing at a driving range.
He then displayed a photo from the couple's wedding day, telling
the panel they would hear from Lisa Scheuer "about the kind of man
he was" before the accident, of the family trips not taken, "of
the pain, the surgery, the devastation."
All of it, Mr. Hilliard said, "the result of a conscious decision
made by General Motors to a put a defective ignition switch in
millions of cars."
Mr. Hilliard said the ignition switch forced GM to issue a massive
recall notice in 2014 and ultimately spend hundreds of millions of
dollars to fend off criminal charges and settle civil claims.
He demonstrated how it operated--and said the company elected to
keep on the shelves defective switches that easily could be bumped
to the "accessory" setting, which shuts off the power steering and
brakes and renders the air bags unable to deploy.
Mr. Hilliard, of Hilliard Munoz Gonzales in Corpus Christi, Texas,
opened the driver-side door of one of his main exhibits, the front
third of a car assembled in the courtroom and parked in front of
the judge's bench, to demonstrate how the seat belts are supposed
to work in relation to the air bags.
Mr. Hilliard described how Mr. Scheuer, after receiving his recall
notice in 2014, followed the company's instructions to remove all
but the ignition key from the key chain. The notice told
Mr. Scheuer that the ignition could change slots, not only when
there are a number of objects on the key ring but also when a
vehicle goes over "rough roads" or "jarring on impact."
So when Mr. Scheuer's 2003 Saturn Ion allegedly swerved to avoid
an accident and ran off the road on May 28, 2014, he hit several
trees and claimed the safety features didn't work.
Mr. Hilliard showed jurors an animated version of the crash. They
then saw a photo of Mr. Scheuer strapped to an EMT gurney, about
to be airlifted to a local hospital.
Mr. Hilliard finished by detailing General Motors' efforts to
conceal its knowledge of the defects going back over a decade and
the company's attempts to manage public relations.
He also put up a chart that showed "other similar incidents"
(OSIs) that will be allowed at trial, including crashes where air
bags didn't deploy. Ten people were killed and more were severely
injured in the OSIs.
Plaintiff on Notice
But Mike Brock -- mike.brock@kirkland.com -- of Kirkland & Ellis,
representing General Motors, gave the jury an entirely different
view of the evidence.
He began with the letter Mr. Scheuer received in 2014 and his
adjustment to his key chain, factors that Mr. Brock said make the
Scheuer case very different from the OSIs.
Mr. Brock said the National Highway Traffic Safety Administration
signed off on the recall notice and agreed the cars were safe to
operate if "the cylinder is not attached to a key ring containing
other items," making an argument that Mr. Scheuer knew what he was
doing.
"Nothing was withheld from him -- he was told precisely what the
problem was," Mr. Brock said. "This vehicle performed the way it
was designed to perform."
Air bags are not designed to deploy "on every little bump,"
because the air bags pose their own risks and are therefore
designed only for the most severe crashes, he said.
Mr. Brock then went after Mr. Scheuer's credibility, saying "he
didn't lose control of his car because of the ignition switch,"
and never lost power brakes or steering. He said an investigating
officer, remarking on the gradual curve the Ion took as it moved
off the road, found the accident scene more indicative of someone
who had fallen asleep behind the wheel.
The only reason Mr. Scheuer was airlifted to the hospital was
because he complained of numbness in his legs. Otherwise, he came
out of the vehicle without obvious injuries. At the hospital, he
said, Mr. Scheuer complained of no trauma, neck or back pain and
left the following day, Mr. Brock said.
Mr. Scheuer, he said, had suffered an industrial accident years
before the 2014 crash and had spinal problems. He suffered from a
degenerative condition in his back for more than 20 years, had two
lower back surgeries and received extensive treatments along with
pain medication.
Mr. Scheuer claimed to have been unconscious at the scene of the
accident for nearly three hours beginning at around 2:00 p.m. But
Mr. Brock said cellphone records showed Mr. Scheuer called his
answering service at 2:19 and checked his voicemail again at 3:25.
As for GM, Mr. Brock said, "There were mistakes and errors in
judgment along the way," but the company had taken action, fired
15 employees, set up a compensation fund for people injured by
defective switches and had otherwise recommitted itself to safety.
"We have a strong case that his switch did not rotate, that his
air bags were not designed to deploy . . . and that Mr. Scheuer's
injuries, if he has any, are not different from what they would
have been" absent the allegations of a defect, he told the jury.
"This vehicle performed the way it was supposed to perform."
GENERAL NUTRITION: Faces "Hubert" Suit for Consumer Deception
-------------------------------------------------------------
Daniel Hubert, individually and on behalf of all other persons
similarly situated, v. General Nutrition Corporation, Case 2:15-
cv-01391-MRH (W.D.Penn., October 27, 2015), alleges that the
Defendant repeatedly misrepresented that various products that GNC
sold in Texas and throughout the United States were lawful dietary
supplements when in fact these products were adulterated and
unlawful because they contained either Picamilon or R-beta-
methylphenethylamine (BMPEA), potentially dangerous ingredients
that do not meet the legal definition of a dietary ingredient and
may not be lawfully used in dietary supplements. The acts
allegedly violate the Texas Deceptive Trade Practices and Consumer
Protection Law Act.
Picamilon is a synthetic chemical designed to cross the blood
brain barrier and is a prescription drug used in some countries
but not the United States to treat various neurological
conditions. BMPEA is a synthetic chemical similar to amphetamine
that is banned by the World Anti-Doping Organization.
GNC describes itself as a leading global retailer of health and
wellness products, including vitamins, minerals, dietary
supplement products, sports nutrition products and diet products.
Its products are sold under GNC proprietary names and under third-
party names in company owned retail stores and in franchise stores
located across the United States, including in
Pennsylvania.
The Plaintiff is represented by:
D. Aaron Rihn, Esq.
ROBERT PEIRCE & ASSOCIATES, P.C.
707 Grant Street Suite 2500
Pittsburgh, PA 15219-1918
Phone: (412) 281-7229
E-mail: arihn@peircelaw.com
- and -
Shanon J. Carson, Esq.
BERGER & MONTAGUE, P.C.
1622 Locust Street
Philadelphia, PA 19103
Phone: (215)875-4656
E-mail: scarson@bm.net
- and -
Gregory F. Coleman, Esq.
Mark E. Silvey, Esq.
Lisa A. White, Esq.
GREG COLEMAN LAW, P.C.
First Tennessee Plaza
800 S. Gay Street, Suite 1100
Knoxville, TN 37929
Phone: (865) 247-0090
- and -
Gary E. Mason, Esq.
Esfand Y. Nafisi, Esq.
Benjamin Branda, Esq.
WHITEFIELD BRYSON & MASON, LLP
1625 Massachusetts Avenue, NW, Ste. 605
Washington, DC 20036
Phone: (202) 429-2290
- and -
John Yanchunis, Esq.
Marcio Valladares, Esq.
Patrick A. Barthle Ii, Esq.
MORGAN & MORGAN COMPLEX LITIGATION GROUP
201 North Franklin Street, 7th Floor
Tampa, FL 33602
Phone: (813) 223-5505
- and -
Edward A. Wallace, Esq.
Mark R. Miller, Esq.
Amy E. Keller, Esq.
WEXLER WALLACE, LLP
55 West Monroe Street, Suite 3300
Chicago, IL 60603
Phone: (312) 346-2222
GROSSMAN ASSISTANCE: Sued in Cal. Over Retaliation Policies
-----------------------------------------------------------
Tiffany de Leon, Alima Jennings, and Angel Schwahn v. Grossman
Assistance Group, LLC, and Does 1 through 25, inclusive, Case No.
BC602727 (Cal. Super Ct., December 2, 2015) arises out of the
Defendants' alleged retaliation practices against the Plaintiffs
because they made a written or oral complaint that they are owed
unpaid wages.
Grossman Assistance Group, LLC operates a business consulting
services company in Santa Monica, California.
The Plaintiff is represented by:
Young W. Ryu, Esq.
Kelly Kim, Esq.
LAW OFFICE OF YOUNG W. RYU
A PROFESSIONAL LAW CORPORATION
9595 Wilshire Blvd, Suite 900
Beverly Hills, CA 90212
Telephone: (888) 365- 8686
Facsimile: (800) 576-1170
E-mail: young.ryu@ywrlaw.com
kelly.kim@ywrlaw.com
HEADWAY TECHNOLOGIES: Faces "Hendricks" Shareholder Class Action
----------------------------------------------------------------
Jesse Hendricks, Individually and on Behalf of All Others
Similarly Situated and Derivatively on Behalf of Nominal Defendant
Hutchinson Technology Incorporated, v. Richard J. Penn, Wayne M.
Fortun, Martha Goldberg Aronson, Russell Huffer, Frank P.
Russomanno, Philip E. Soran, Thomas R. Verhage, Headway
Technologies, Inc., and Hydra Merger Sub, Inc., Case 0:15-cv-04338
(D.Minn., December 9, 2015), is a shareholder class action
individually and on behalf of the other public shareholders of
Hutchinson Technology Incorporated and derivatively on behalf of
Hutchinson Tech, against the Company's Board of Directors, and
Headway Technologies, Inc. and Hydra Merger Sub, Inc., companies
beneficially owned by TDK Corporation.
Hutchinson Tech is a global supplier of critical precision
component technologies such as suspension assemblies for hard disk
drives, which function as a sort of "shock absorber" to protect
computer hard disk drives as they read and write information.
Headway Technologies, Inc. is a California corporation that
designs and manufactures recording heads for high performance hard
disk drives. Headway Technologies, Inc. is beneficially owned by
TDK Corporation.
The Plaintiff is represented by:
Garrett D. Blanchfield, Esq.
Brant D. Penney, Esq
REINHARDT, WENDORF & BLANCHFIELD
E-1250 First National Bank Building
332 Minnesota Street
St. Paul, MN 55101
Phone: (651) 287-2100
Fax: (651) 287-2103
- and -
Stuart A. Davidson, Esq.
Mark J. Dearman, Esq.
Christopher Martins, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP SABRINA TIRABASSI
120 East Palmetto Park Road, Suite 500
Boca Raton, FL 33432
Phone: (561) 750-3000
Fax: (561) 750-3364
- and -
Randall J. Baron, Esq.
David T. Wissbroecker, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
655 West Broadway, Suite 1900
San Diego, CA 92101-3301
Phone: (619) 231-1058
Fax: (619) 231-7423
- and -
Hamilton Lindley, Esq.
DUNNAM & DUNNAM
4125 W. Waco Drive
Waco, TX 76710
Phone: (254) 753-6437
Fax: (254) 753-7434
HILL/GREY SEVEN: "McCowan" Suit Alleges WARN Act Violation
----------------------------------------------------------
Stephen McCowan, and all others similarly situated v. Hill/Grey
Seven, LLC, Case No. 6:15-cv-02067 (M.D. Fla., December 8, 2015),
is brought against the Defendant for failure to provide 60 days'
notice of termination as required by the Worker Adjustment and
Retraining Notification Act.
The Defendant owns franchises and real estate.
The Plaintiff is represented by:
Richard Celler, Esq.
RICHARD CELLER LEGAL, P.A.
7450 Griffin Road, Suite 230
Davie, FL 33314
Tel: (866) 344-9243
Fax: (954) 337-2771
E-mail: richard@floridaovertimelawyer.com
IMAX CORP: Faces "Andre" Suit Seeking Recovery of Unpaid Wages
--------------------------------------------------------------
Daniel Andre, an individual and on behalf of himself and all
others similarly situated, v. Imax Corporation, a Canada
corporation; Imax Post/DKP Inc., a Delaware corporation; and DOES
1 through 100, Case no BC603643 (Cal. Super., County of Los
Angeles, December 8, 2015) seeks recovery of unpaid wages and
penalties under California Business and Professions Code, Labor
Code and Industrial Welfare Commission Wage Order No. 4, which
sets employment standards for technical occupations, including
audio-visual technicians.
IMAX Corporation is an entertainment technology company.
The Plaintiff is represented by:
Paul K. Haines, Esq
Fletcher W. Schmidt, Esq
BOREN, OSHER & LUFTMAN LLP
222 N. Sepulveda Blvd., Suite 2222
El Segundo, CA 90245
Phone: (310) 322-2220
Fax: (310)322-2228
E-mail: phaines@bollaw.com
fschmidt@bollaw.com
J PETERMAN: "Heeter" Suit Alleges FLSA Violation
------------------------------------------------
Brian Heeter, and all others similarly situated v. J. Peterman
Enterprises, LLC, Carlton Banks Enterprises, LLC, Robert Shotwell
and Michael Shotwell dba Maximum Commercial Cleaners, Case No.
2:15-cv-03062 (S.D. Ohio, December 8, 2015), is brought against
the Defendants for failure to pay minimum wage and overtime
compensation under the Fair Labor Standards Act, Ohio Minimum Fair
Wage Standards Act, Ohio Prompt Pay Act, and the Ohio
Constitution.
The Defendants provide office or commercial cleaning services.
The Plaintiff is represented by:
Robert E. DeRose, Esq.
BARKAN MEIZLISH HANDELMAN
GOODIN DEROSE WENTZ, LLP
250 E. Broad St., 10th Floor
Columbus, OH 43215
Tel: (614) 221-4221
Fax: (614) 744-2300
E-mail: bderose@barkanmeizlish.com
KRAFT HEINZ: Seeks Restoration of Benefits Under ERISA, Labor Act
-----------------------------------------------------------------
Richard Gruss, Peggy Cook, Gerald Hermanson, for themselves and
all persons similarly situated, and United Food And Commercial
Workers Local Union 538, v. Kraft Heinz Food Company, Inc., Case:
3:15-cv-00788 (W.D.Wis., December 9, 2015), seeks restoration of
retiree health and prescription drug insurance benefits under the
Employee Retirement Income Security Act and the Labor-Management
Relations Act.
Kraft Heinz operates meat processing plants and other food
processing facilities throughout the country. It operates a meat
processing plant located in Madison, Wisconsin under a subsidiary
called Oscar Mayer Foods, Inc.
The Plaintiffs are represented by:
Kurt C. Kobelt, Esq.
ARELLANO & PHEBUS, S.C.
1468 N. High Point Road, Suite 202
Middleton, WI 53562-3683
Phone: (608)827-7680
Fax: (608)827-7681
E-mail: kkobelt@aplawoffice.com
LG CLEANERS: Faces "Batista" Suit Alleging Violations of FLSA
-------------------------------------------------------------
Dany Batista, individually and on behalf of others similarly
situated, v. LG Cleaners, Inc. (d/b/a LG Cleaners & Taylor Shop),
Luis Garcia and Orlando Garcia, Case 1:15-cv-09649 (S.D.N.Y.,
December 9, 2015), seeks alleged unpaid minimum and overtime wages
pursuant to the Fair Labor Standards Act, the minimum wage,
overtime and spread-of-hours law and the associated regulations of
the New York Commissioner of Labor, including applicable
liquidated damages, interest, attorneys' fees and costs.
Defendants own operate or control a full service cleaner.
The Plaintiff is represented by:
Michael A. Faillace., Esq.
MICHAEL FAILLACE & ASSOCIATES, P.C
60 East 42nd St., Suite 2540
New York, NY 10165
Phone: (212) 317-1200
LINEBARGER GOGGAN: Settles Class Suit for $34-Mil.
--------------------------------------------------
Angela Morris, writing for Texas Lawyer, reports that a federal
judge has approved a settlement that requires Austin-based law
firm Linebarger Goggan Blair & Sampson to pay $3.4 million --
including nearly $904,000 in attorney fees and expenses -- to
settle a class action that alleged it engaged in the unauthorized
practice of law in California.
The settlement ends litigation spanning back to May 2013, when
plaintiff 4EC Holdings sued Linebarger, a firm that contracts with
governmental agencies to collect debts. 4EC alleged that
Linebarger sent debt collection demand letters to California
residents, even though the firm did not employ lawyers in
California, as allegedly required under California law. Linebarger
denied the allegations.
Class action notices were mailed to 82,906 class members, said a
motion for court approval of the settlement in 4EC Holdings v.
Linebarger Goggan Blair & Sampson, filed in the U.S. District
Court for the Northern District of California in San Francisco.
Under the settlement, Linebarger had to deposit $3.4 million into
a settlement fund, which included $2 million in automatic payments
to class members and $1.4 million for attorney fees, expenses and
a possible cy pres award. The motion said that Linebarger agreed
to use California lawyers and supervise them in sending letters
from now on.
The Jan. 8 final judgment and order of dismissal with prejudice
said the court found that approving the settlement would save time
and resources, further the interests of justice and that it was
fair, reasonable and adequate for class members. The court
dismissed the claims against Linebarger with prejudice. The
settlement doesn't show the validity of any of the claims or any
wrongdoing by Linebarger, said the judgment.
The same day, the court awarded $850,000 in attorney fees and
almost $53,600 in costs to 4EC, said a Jan. 8 order granting in
part motion for attorneys fees and costs. The plaintiffs lawyers
asked for more money in a Nov. 6, 2015, class counsels' initial
fee application. It said that the class counsel were entitled to
get $1.23 million and that the actual fees were $1.33 million.
Vinson & Elkins partner Michael Charlson of San Francisco, who
represented Linebarger, didn't return a call seeking comment
before deadline. Neither did Clif Douglass, chairman of
Linebarger's management committee, nor San Francisco solo Bill
McGrane, who represented 4EC.
Look Back at Litigation
The fight started in California state court. The April 24, 2014,
second amended complaint said that an ethics opinion by the State
Bar of California decided that a California lawyer who collects
debts has a responsibility to supervise employees who send demand
letters to ensure the letters state the right amount and that the
debtors really owe it. Otherwise, it's a violation of California
ethical law. It's also a violation for an out-of-state law firm to
practice law in California when it doesn't have any in-state
lawyers, alleged the complaint. 4EC received two demand letters
to pay a $90 fee to the city of San Francisco, and it paid the
sum.
The complaint alleged that Linebarger illegally practiced law by
falsely holding itself out to California governmental entities as
being comprised of "attorneys at law," when no California lawyers
worked there. The firm entered into engagement agreements with
California governments and sent demand letters to collect debts
from California citizens. Because the firm did not have any
California lawyers, the firm's engagement agreements were null and
void, which means Linebarger wasn't authorized to collect the
money, alleged the complaint. 4EC also alleged that after
September 2013 when Linebarger did employ a California lawyer, it
failed to supervise the attorney.
The company sued Linebarger for unfair competition. The complaint
estimated the class had tens of thousands of members. It asked for
restitution of all the money -- estimated to be millions -- that
Linebarger obtained from the class between February 2002 and the
time that final judgment is rendered in the case.
In April 2014, Linebarger removed the class action to federal
court.
"Linebarger did not engage in any wrongful conduct, and nothing
about its conduct was unfair or fraudulent," said a May 5, 2014,
motion to dismiss.
The firm argued that the court should dismiss the lawsuit,
alleging that 4EC lacked standing to bring the claims because it
did not sustain an injury--it would have owed the $90 regardless.
The motion said that Linebarger's purported misconduct didn't
cause any injury, because even if 4EC didn't get a demand letter,
it owed the money. Among other things, the firm alleged that any
claims for debts paid before May 2009 would be time-barred. The
motion added that it's incorrect to say that sending a debt
collection letter is the practice of law.
MAISON BOURBON: "Edwards" Suit Seeks to Recover Unpaid Wages
------------------------------------------------------------
Megan Edwards, and all others similarly situated v. Maison Bourbon
Jazz Club, LLC, Case No. 2:15-cv-06560 (E.D. La., December 8,
2015), seeks to recover unpaid minimum wage and overtime wages,
liquidated damages, and attorney's fees and costs pursuant to the
Fair Labor Standards Act.
The Defendant operates a jazz club and bar in New Orleans.
The Plaintiff is represented by:
Christopher L. Williams, Esq.
WILLIAMS LITIGATION, LLC
639 Loyola Ave., Ste 1850
New Orleans, LA 70113
Tel: (504) 308-1438
Fax: (504) 308-1446
E-mail: chris@williamslitigation.com
METRO ONTARIO: Recalls Cheese Ravioli Products Due to Salmonella
----------------------------------------------------------------
Starting date: November 13, 2015
Type of communication: Recall
Alert sub-type: Notification
Subcategory: Microbiological - Salmonella
Hazard classification: Class 3
Source of recall: Canadian Food Inspection Agency
Recalling firm: Metro Ontario Inc.
Distribution: Ontario, Quebec
Extent of the product distribution: Retail
CFIA reference number: 10166
Brand name Common name Size Code(s) on UPC
---------- ----------- ---- product ---
----------
Irresistibles Gluten Free 340 g 020317 0 59749 93560 9
Cheese
Ravioli
Irresistibles Gluten Free 340 g 021117 0 59749 93569 2
Cheese
Ravioli
NATURAL HEALTH: Sued for False, Misleading Statements to Investors
------------------------------------------------------------------
Laurence Rosen, Esq., -- lrosen@rosenlegal.com -- Phillip Kim,
Esq. -- pkim@rosenlegal.com -- and Kevin Chan, Esq. -
kchan@rosenlegal.com -- of The Rosen Law Firm, P.A., filed a class
action lawsuit on behalf of purchasers of Natural Health Trends
Corp. (NASDAQ:NHTC) securities from March 6, 2015 through January
12, 2016, all dates inclusive (the "Class Period"). The lawsuit
seeks to recover damages for Natural Health Trends investors under
the federal securities laws.
According to the lawsuit, throughout the Class Period Defendants
issued false and misleading statements to investors and/or failed
to disclose that: (1) the operations of Natural Health Trends'
Chinese entity is not in compliance with applicable Chinese laws;
and (2) as a result, Defendants' statements about Natural Health
Trends' business, operations, and prospects, were false and
misleading and/or lacked a reasonable basis at all relevant times.
When the true details entered the market, the lawsuit claims that
investors suffered damages.
Rosen Law Firm represents investors throughout the globe,
concentrating its practice in securities class actions and
shareholder derivative litigation.
NEWMAR: Recalls Dutch Star Class A Motorhomes 2016 Models
---------------------------------------------------------
Starting date: November 13, 2015
Type of communication: Recall
Subcategory: Motorhome
Notification type: Safety Mfr
System: Label
Units affected: 3
Source of recall: Transport Canada
Identification number: 2015538TC
ID number: 2015538
On certain motorhomes, the certification label may not contain the
correct Gross Vehicle Weight Rating (GVWR). The label incorrectly
indicates a GVWR of 44600 lbs (20230 kg) instead of 47000 lbs
(21318 kg). Correction: Not applicable.NOTE: Further analysis has
shown there is no safety issue with the prior 44600 lbs (20230 kg)
GVWR rating.
Make Model Model year(s) affected
---- ----- ----------------------
NEWMAR DUTCH STAR CLASS A 2016
MOTORHOME
NEWS CORPORATION: "Wilder" Plaintiffs Seek Reconsideration
----------------------------------------------------------
News Corporation said in its Form 10-Q Report filed with the
Securities and Exchange Commission on November 6, 2015, for the
quarterly period ended September 30, 2015, that plaintiffs in the
Wilder litigation have filed a motion for reconsideration of the
District Court's memorandum, opinion and order dismissing the
matter.
On July 19, 2011, a purported class action lawsuit captioned
Wilder v. News Corp., et al. was filed on behalf of all purchasers
of 21st Century Fox's common stock between March 3, 2011 and July
11, 2011, in the U.S. District Court for the Southern District of
New York (the "Wilder Litigation"). The plaintiff brought claims
under Section 10(b) and Section 20(a) of the Securities Exchange
Act, alleging that false and misleading statements were issued
regarding alleged acts of voicemail interception at The News of
the World. The suit named as defendants 21st Century Fox, Rupert
Murdoch, James Murdoch and Rebekah Brooks, and sought compensatory
damages, rescission for damages sustained and costs.
On June 5, 2012, the District Court issued an order appointing the
Avon Pension Fund ("Avon") as lead plaintiff and Robbins Geller
Rudman & Dowd as lead counsel. Avon filed an amended consolidated
complaint on July 31, 2012, which among other things, added as
defendants the Company's subsidiary, NI Group Limited (now known
as News Corp UK & Ireland Limited), and Les Hinton, and expanded
the class period to comprise February 15, 2011 to July 18, 2011.
Defendants filed motions to dismiss the litigation, which were
granted by the District Court on March 31, 2014.
Plaintiffs were allowed to amend their complaint, and on April 30,
2014, plaintiffs filed a second amended consolidated complaint,
which generally repeated the allegations of the amended
consolidated complaint and also expanded the class period to
comprise July 8, 2009 to July 18, 2011. Defendants moved to
dismiss the second amended consolidated complaint, and on
September 30, 2015, the District Court granted defendants' motions
in their entirety and dismissed all of plaintiffs' claims.
In its memorandum, opinion and order relating to the dismissal,
the District Court gave plaintiffs until November 6, 2015 to file
a motion for leave to amend their complaint. A copy of the
dismissal ruling is available at http://is.gd/dtIDDTfrom
Leagle.com.
On October 21, 2015, plaintiffs filed a motion for reconsideration
of the District Court's memorandum, opinion and order. The
Company's management believes these claims are entirely without
merit and intends to vigorously defend this action.
The Company will be indemnified by 21st Century Fox for certain
payments made by the Company that relate to, or arise from, the
U.K. Newspaper Matters, including all payments in connection with
the Wilder Litigation.
The case is, LEWIS WILDER, as Trustee for the Lewis Wilder
Revocable Trusts, 12110/2010, and IROW WORKERS LOCAL UNION NO. 17
PENSION FUND, Plaintiffs, and AVON PENSION FUND, administered by
Bath and North East Somerset Council, Individually and on Behalf
of All Others Similarly Situated, Lead Plaintiff, v. NEWS
CORPORATION, NI GROUP LTD., K. RUPERT MURDOCH, JAMES MURDOCH, LES
HINTON and REBEKAH BROOKS, Defendants, No. 11 Civ. 4947 (PGG)
(S.D.N.Y.)
NINGBO EGO: Recalls Indoor String Lights Due to Fire Hazard
-----------------------------------------------------------
Starting date: November 20, 2015
Posting date: November 20, 2015
Type of communication: Consumer Product Recall
Subcategory: Household Items, Tools and Electrical Products
Source of recall: Health Canada
Issue: Fire Hazard
Audience: General Public
Identification number: RA-55922
This recall involves MAGI Decor brand white indoor string lights.
The affected product consists of 100 white miniature lights on a
white wire and measures 2.1 metres (7 feet) long. Consumers are
able to locate model number ZHCA100BX/2SI and CSA certification
file number 263917 on the self-adhesive tags affixed to the
product's wire, as well as item number 590396 and UPC 884118246440
on the product's packaging.
Health Canada's sampling and evaluation program has determined
that the seasonal lights may pose a fire and electric shock hazard
to consumers.
Neither Health Canada nor Jean Coutu Group (PJC) Inc. has received
any reports of consumer incidents or injuries related to the use
of these products.
Approximately 99 string lights were sold in Canada.
The recalled products were sold from September 2015 to November
2015.
Manufactured in China.
Importer: The Jean Coutu Group (PJC) Inc.
Longueuil
Quebec
CANADA
Manufacturer: Ningbo Ego International Co. Ltd.
3/F, No.168 East Road Songjiang, Yinzhou Area,
Ningbo
Zhejiang
315100
CHINA
Consumers should immediately stop using the recalled seasonal
lights and return them to a Jean Coutu store to obtain a refund.
For more information, consumers may contact Jean Coutu Group (PJC)
Inc. by telephone at 450-646-9611 from Monday to Friday between
9:00 a.m. and 5:00 p.m. (EST), or by email.
Please note that the Canada Consumer Product Safety Act prohibits
recalled products from being redistributed, sold or even given
away in Canada.
Health Canada would like to remind Canadians to report any health
or safety incidents related to the use of this product or any
other consumer product or cosmetic by filling out the Consumer
Product Incident Report Form.
This recall is also posted on the OECD Global Portal on Product
Recalls website. You can visit this site for more information on
other international consumer product recalls.
For the complete list of recalls resulting from this sampling and
evaluation project, see the Consumer Product Update on seasonal
lights.
Pictures of the Recalled Products available at:
http://is.gd/caaKhe
PETER KILMARTIN: Faces Suit Under "Residency Prohibition" of R.I.
-----------------------------------------------------------------
John Freitas, Theodore Chapdelaine, Troy Porter, Frederick Kenney,
Michael Clinton, and Derrick Lee Jenkins each individually and on
behalf of all persons similarly situated v. Peter Kilmartin, in
his official capacity as Attorney General of the State of Rhode
Island, and A.T. Wall II, in his official capacity as Director of
the Department of Corrections of the State of Rhode Island
(D.R.I., October 29, 2015), seeks classwide declaratory and
injunctive relief to prohibit enforcement of Sections of "the
Residency Prohibition," as violative of their rights under the
United States Constitution.
The Plaintiffs are represented by:
Lynette Labinger, Esq.
RONEY & LABINGER LLP
344 Wickenden Street
Providence, RI 02903
Phone: (401) 421-9794
Fax: (401) 421-0132
E-mail: labinger@roney-labinger.com
PETM CANADA: Recalls LED Light Betta Bowl Kits
----------------------------------------------
Starting date: November 17, 2015
Posting date: November 17, 2015
Type of communication: Consumer Product Recall
Subcategory: Household Items
Source of recall: Health Canada
Issue: Product Safety, Laceration Hazard
Audience: General Public
Identification number: RA-55842
This recall involves Top Fin brand LED Light Betta Bowl Kits.
These kits included a 0.6-gallon freshwater aquarium with LED
light hood, USB convertible socket, and included gravel and plant.
They were sold in the following colours: silver, pink, blue,
black, purple.
The following Top Fin brand LED Light Betta Bowl Kits are being
recalled:
Colour SKU UPC
------ --- ---
Silver 5203133 40052031331
Pink 5203134 73725747595
Blue 5203234 73725747577
Black 5217526 73725747595
Purple 5217652 73725752855
The glass fish bowls can crack, shatter or break during handling,
posing a laceration hazard to consumers.
PetSmart has received one report of an incident in Canada, in
which the glass fish bowl broke while changing the water,
resulting in lacerations to the hand.
Health Canada has not received any reports of consumer incidents
or injuries related to the use of the fish bowls.
Approximately 7,374 units were sold at PetSmart stores across
Canada and online (www.petsmart.ca) and 90,745 units were sold in
the United States.
The recalled products were sold from September 2, 2013 through
October 20, 2015.
Manufactured in China.
Manufacturer: Guangdong Hailea Group Co. Ltd.
CHINA
Distributor: PETM Canada Corporation operating as PetSmart
Burlington
Ontario
CANADA
Consumers should stop using the recalled fish bowl immediately and
return it to any PetSmart store for a full refund.
For more information, consumers can contact PetSmart toll-free at
1-888-839-9638 from 8 a.m. to 5 p.m. MT Monday through Friday or
visit the firm's website and click on "Product Recalls" listed
under the "Shop With Us" category.
Consumers may view the release by the US CPSC on the Commission's
website.
Please note that the Canada Consumer Product Safety Act prohibits
recalled products from being redistributed, sold or even given
away in Canada.
Health Canada would like to remind Canadians to report any health
or safety incidents related to the use of this product or any
other consumer product or cosmetic by filling out the Consumer
Product Incident Report Form.
This recall is also posted on the OECD Global Portal on Product
Recalls website. You can visit this site for more information on
other international consumer product recalls.
Pictures of the Recalled Products available at:
http://is.gd/UIxMBk
PETM CANADA: Recalls Glass Fish Bowl Products
---------------------------------------------
Starting date: November 17, 2015
Posting date: November 17, 2015
Type of communication: Consumer Product Recall
Subcategory: Household Items
Source of recall: Health Canada
Issue: Laceration Hazard
Audience: General Public
Identification number: RA-55848
This recall involves the 6.6 L (1.75 gal) glass fish bowl that is
shaped like a brandy snifter. These fish bowls were sold under
the Grreat Choice(R) or Top Fin(R) brand names with SKU numbers
5140161 and UPC code 737257187092. The SKU and UPC codes are
printed on a white sticker on the bottom of the fish bowl.
The glass fish bowls can crack, shatter or break during normal
handling, posing a laceration hazard to consumers.
PetSmart has received 1 new report of injury to a Canadian
consumer during the use of the product, involving a laceration to
the hand requiring stitches.
Health Canada has not received any reports of consumer incidents
or injuries related to the use of the fish bowls.
Approximately 3,859 units were sold at PetSmart stores across
Canada (excluding the 1,027 units that were previously recalled).
Approximately 81,300 units were sold at PetSmart stores in the
United States (excluding the 10,200 units that were previously
recalled).
The recalled products were sold from March 2010 to September 2013.
Manufactured in China.
Distributor: PETM Canada Corporation operating as PetSmart
Burlington
Ontario
CANADA
Manufacturer: Shanghai Freeart Trading Co. Ltd.
CHINA
Consumers should stop using the recalled fish bowl immediately and
return it to any PetSmart store for a full refund.
For more information, consumers can contact PetSmart toll-free at
1-888-839-9638 from 8 a.m. to 5 p.m. MT Monday through Friday or
visit the firm's website and click on "Product Recalls" listed
under the "Shop With Us" category.
Consumers may view the release by the US CPSC on the Commission's
website.
Please note that the Canada Consumer Product Safety Act prohibits
recalled products from being redistributed, sold or even given
away in Canada.
Health Canada would like to remind Canadians to report any health
or safety incidents related to the use of this product or any
other consumer product or cosmetic by filling out the Consumer
Product Incident Report Form.
This recall is also posted on the OECD Global Portal on Product
Recalls website. You can visit this site for more information on
other international consumer product recalls.
Pictures of the Recalled Products available at:
http://is.gd/fMkv58
PHOENIX, AZ: Judge Allows Class-Action Suit vs. Border Patrol
--------------------------------------------------------------
Howard Fischer, writing for Arizona Daily Sun, reports that a
federal judge agreed to allow a class-action lawsuit against the
Border Patrol over alleged "inhumane and punitive conditions" at
its facilities in Arizona, saying there's evidence to support
their claims.
Judge David Bury denied a request by the federal agency to throw
out the case, saying the challengers have made sufficient
allegations to support their claims that those detained by the
Border Patrol are denied adequate sleep, sanitary conditions,
medical care, food and water, and warmth at holding centers. He
said it will take a trial to determine whether the fact the
limited length any individual is subject to those conditions --
sometimes several days -- is illegal.
But in a separate ruling, the judge said that affidavits from
those who had been locked up in the holding centers provided
"sufficient evidence . . . to plausibly support each of the
asserted deficiencies." And Bury said that the conditions about
which migrants are complaining appear to be fairly widespread
rather than isolated.
What that means, Bury said, is he will consider not just the
specific complaints of the three people who sued but what could be
hundreds of thousands of others who pass through Border Patrol
holding cells, both in the past and in the future.
More to the point, if Bury finds their claims to be valid, he
could order the federal agency to make extensive changes.
"It's a huge victory because the court validated what thousands of
detainees and advocates have been saying for years about the
deplorable conditions in the short-term detention facilities,"
said Nora Preciado, an attorney with the National Immigration Law
Center. "The conditions there are inhumane."
Preciado acknowledged that the order is not a finding by Bury that
Border Patrol has done anything illegal but only that the claims
of unconstitutional conditions can go to trial. But she said that
Bury had to review the claims of the three former detainees and
determine they had a case in order to allow the lawsuit to go
forward.
"While there is no finding on the merits at this point, there was
a very careful weighing of the evidence," Preciado said.
There was no immediate response from Border Patrol.
The lawsuit filed last 2015, names three individuals -- one Tucson
man and two women who are not identified -- who attorneys say were
denied food, adequate clothing and sleep.
But lawyers said what they experienced is not unique. They said a
majority of the more than 72,000 people detained in the Tucson
sector in a six-month period in 2013 -- a "representative sample"
the lawyers sought through public records requests -- endured the
same conditions.
Attorneys also said while the agency's own guidelines say holding
cells should be used for no more than 12 hours, about 80 percent
were held for at least twice that long, a third held for 48 hours
and almost 8,000 locked up for three days or more, all in horrible
conditions.
Bury rejected arguments by federal attorneys that each person who
alleges harm should be required to file his or her own complaint.
He said the claims are common: denial of basic necessities such as
bedding, food, water and adequate health care.
"The question of what standard applies to the treatment of civil
immigration detainees is, itself, a question capable of -- indeed,
suited to -- classwide resolution," the judge wrote.
In fact, Bury wrote, Border Patrol is not claiming that the
conditions cited vary by facility.
R.J. REYNOLDS: Seeks Dismissal of Class Lawsuit Targeting Vuse
--------------------------------------------------------------
Richard Craver Winston, writing for Winston-Salem Journal, reports
that R.J. Reynolds Vapor Co. has filed a motion to dismiss a
lawsuit involving its Vuse product, claiming that plaintiffs have
not proven that use of top-selling electronic cigarette exposes
smokers to "significant amounts of harmful carcinogens." The
lawsuit was filed Sept. 8 in the Northern District of California.
Reynolds filed its response.
The main questions about e-cigs and vaporizers, which use open
liquid capsules, continue to focus on their safety and what
public-health role could they play in reducing the risk from
consuming tobacco products.
Vuse is available at more than 100,000 retail outlets nationwide,
with distribution beginning in California in June 2014. Vuse had a
37.9 percent e-cig market share as of Dec. 26 as measured by mass
channels and convenience stores, according to Nielsen data.
Plaintiff Jerod Harris claims Reynolds Vapor is violating
California law by failing to include a potential carcinogen risk,
particularly exposure to formaldehyde and acetaldehyde, in its
marketing and labels. The complaint cites the California Consumers
Legal Remedies Act.
Harris accuses Reynolds Vapor of deceptive and unfair sales of
Vuse in California. He said he would not have purchased Vuse if
labeling had included potential carcinogen risks.
The complaint requests compensatory and punitive damages, an order
requiring Reynolds to add appropriate warning labels to Vuse -- at
least in California -- and for Reynolds Vapor to pay the cost for
notifying potential class-action members.
Reynolds Vapor based its dismissal on three reasons:
-- The lawsuit was filed improperly in terms of timing as it
relates to California Proposition 65. The proposition
requires labeling of any product with a warning of potential
carcinogens and/or reproductive toxicants.
-- The Food and Drug Administration is expected to receive an
answer -- potentially any day -- from federal regulators on
its final rules for regulating e-cigs, including labeling.
Reynolds is asking that the lawsuit be stayed at least until
it is determined what regulatory authority the FDA is given.
-- Reynolds says the plaintiff lacks standing to seek
injunctive relief in terms of realistic threat of future
injury.
Reynolds said it has included a Prop 65 "safe harbor" warning for
potential reproductive harm stemming from consumer exposure to
nicotine in Vuse packaging. It said it began providing in November
the safe harbor warning on cancer with Vuse point of sale
displays.
"Notably, plaintiff does not allege with any specificity that
consumer exposure to either chemical exceeds no-significant-risk-
level thresholds established for those chemicals" Reynolds said.
There is no definitive e-cig health study that has been accepted
by the industry, regulators, analysts and advocates. Harris'
attorneys acknowledge that "to date, e-cigarettes are not required
to receive pre-market approval of any kind."
RAY CAMMACK: Faces "Berelleza" Suit to Recover Unpaid Wages, OT
---------------------------------------------------------------
Edgar Berrelleza, individually and on behalf of all others
similarly situated v. Ray Cammack Shows Inc., Guy. W. Leavitt,
Trinity Concessions LLC, Joy Leavitt Pickett, Ben Pickett, and Doe
One through and including Doe Ten, Case: BC603001 (Super. Cal.,
County of Los Angeles, December 8, 2015), alleges that the
Plaintiff did not receive all minimum wages due, was underpaid
overtime wages due, was not compensated for missed 30-minute meal
periods, was not compensated for missed ten-minute rest periods,
was not reimbursed for employment related expenses, and did not
receive all wages due at the termination of employment.
Ray Cammack Shows, Inc. provides carnival entertainment to fairs
and guests.
The Plaintiff is represented by:
Jonathan Ricasa, Esq.
LAW OFFICE OF JONATHAN RICASA
2341 Westwood Boulevard, Suite 7
Los Angeles, CA 90064
Phone: (424) 248-0510
Fax: (424) 204-0652
E-mail: jricasa@ricasalaw.com
RIGHTSCORP: Settles Suit Over Phone Calls to Suspected Pirates
--------------------------------------------------------------
Chris Cooke, writing for CMU, reports that having seen one of its
clients -- BMG -- score a significant win against US internet
service provider Cox Communications last 2015, anti-piracy firm
Rightscorp is conceding in another legal battle. It has settled a
class action that accused the company of breaking American
telecommunication laws by calling and texting suspected pirates.
Rightscorp's tactics for chasing people suspected of accessing or
sharing unlicensed content online have been criticised in various
quarters.
Cox Communications -- when accused by BMG of being liable for its
customers' copyright infringement by basically refusing to work
with Rightscorp to tackle infringers -- relied heavily in its
unsuccessful defence on the controversies that had surrounded the
anti-piracy agency's practices. Though the judge hearing the case
stopped Cox from dubbing Rightscorp a 'copyright troll' in court.
The anti-piracy tactic causing controversy in this other case was
Rightscorp using automated phone calls and/or text messages to
chase accused file-sharers. Rightscorp would subpoena a suspected
infringer's contact details from their ISP, write to that
suspected infringer demanding they stop infringing and pay a fine
for past infringement, and then follow up the letter with calls or
texts demanding the recipient respond.
Two of the people targeted with such correspondence -- both of
whom denied the allegations of copyright infringement made against
them -- said that Rightscorp had "wilfully violate" the US
Telephone Consumer Protection Act with the calls and texts.
Because, their lawsuit added, the law requires companies to have a
recipient's consent before making automated calls or sending
texts.
Had the lawsuit prevailed in court, Rightscorp could have faced
paying damages between $500 and $1500 to each person who received
calls or texts without permission, and there were over 2000
members of the class once the legal action gained momentum.
But the case will not proceed to court, because Rightscorp has
agreed to settle. And while neither the anti-piracy firm nor those
clients also named as defendants admit any wrongdoing in the
settlement, Rightscorp agrees to stop using automated calls or
texts without a recipient's permission, while setting aside
$450,000 to cover the costs of the litigation to date and to pay
$100 to each class member.
Those class members will have to declare that they didn't infringe
any of Rightscorp clients' copyright works as part of the
settlement. By doing so, said clients will drop any outstanding
copyright claims against each class member, so they won't face any
further demands for payment from the rights owners.
Both parties filed settlement papers with the courts, which
included details of a claims process for class members seeking
their $100.
SEAWORLD ENTERTAINMENT: Dismissal of "Baker" Action Sought
----------------------------------------------------------
Seaworld Entertainment, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on November 6, 2015,
for the quarterly period ended September 30, 2015, that the
Company's bid to dismiss the "Baker" securities class action
remains pending.
On September 9, 2014, a purported stockholder class action lawsuit
consisting of purchasers of the Company's common stock during the
periods between April 18, 2013 to August 13, 2014, captioned Baker
v. SeaWorld Entertainment, Inc., et al., Case No. 14-CV-02129-MMA
(KSC), was filed in the U.S. District Court for the Southern
District of California against the Company, the Chairman of the
Company's Board of Directors, certain of its executive officers
and Blackstone. On February 27, 2015, Court-appointed Lead
Plaintiffs, Pensionskassen For Borne- Og Ungdomspaedagoger and
Arkansas Public Employees Retirement System, together with
additional plaintiffs, Oklahoma City Employee Retirement System
and Pembroke Pines Firefighters and Police Officers Pension Fund
(collectively, "Plaintiffs"), filed an amended complaint against
the Company, the Chairman of the Company's Board of Directors,
certain of its executive officers, Blackstone, and underwriters of
the initial public offering and secondary public offerings.
The amended complaint alleges, among other things, that the
prospectus and registration statements filed contained materially
false and misleading information in violation of the federal
securities laws and seeks unspecified compensatory damages and
other relief. Plaintiffs contend that defendants knew or were
reckless in not knowing that Blackfish was impacting SeaWorld's
business at the time of each public statement. On May 29, 2015,
the Company and the other defendants filed a motion to dismiss the
amended complaint. The Plaintiffs filed an opposition to the
motion to dismiss on July 31, 2015. The Company and the other
defendants filed a reply in further support of their motion to
dismiss on September 18, 2015.
The Company believes that the class action lawsuit is without
merit and intends to defend the lawsuit vigorously; however, there
can be no assurance regarding the ultimate outcome of this
lawsuit.
SEAWORLD ENTERTAINMENT: Bid to Dismiss "Hall" Suit Pending
----------------------------------------------------------
Seaworld Entertainment, Inc.'s motion to dismiss a consolidated
consumer class action lawsuit remains pending, according to its
Form 10-Q Report filed with the Securities and Exchange Commission
on November 6, 2015, for the quarterly period ended September 30,
2015.
On March 25, 2015, a purported class action was filed in the
United States District Court for the Southern District of
California against the Company, captioned Holly Hall v. SeaWorld
Entertainment, Inc., Case No. 3:15-cv-00600-CAB-RBB (the "Hall
Matter"). The complaint identifies three putative classes
consisting of all consumers nationwide who at any time during the
four-year period preceding the filing of the original complaint,
purchased an admission ticket, a membership or a SeaWorld
"experience" that includes an "orca experience" from the SeaWorld
amusement park in San Diego, California, Orlando, Florida or San
Antonio, Texas respectively. The complaint alleges causes of
action under California Unfair Competition Law, California
Consumers Legal Remedies Act, California False Advertising Law,
California Deceit statute, Florida Unfair and Deceptive Trade
Practices Act, Texas Deceptive Trade Practices Act, as well as
claims for Unjust Enrichment. Plaintiffs' claims are based on
their allegations that the Company misrepresented the physical
living conditions and care and treatment of its killer whales,
resulting in confusion or misunderstanding among ticket
purchasers, and omitted material facts regarding its killer whales
with intent to deceive and mislead the plaintiff and purported
class members. The complaint further alleges that the specific
misrepresentations heard and relied upon by Holly Hall in
purchasing her SeaWorld tickets concerned the circumstances
surrounding the death of a SeaWorld trainer. The complaint seeks
actual damages, equitable relief, attorney's fees and costs.
Plaintiffs claim that the amount in controversy exceeds $5,000,
but the liability exposure is speculative until the size of the
class is determined (if certification is granted at all).
In addition, four other purported class actions were filed against
the Company and its affiliates. The first three actions were filed
on April 9, 2015, April 16, 2015 and April 17, 2015, respectively,
in the following federal courts:
(i) the United States District Court for the Middle District
of Florida, captioned Joyce Kuhl v. SeaWorld LLC et al.,
6:15-cv-00574-ACC-GJK (the "Kuhl Matter"),
(ii) the United States District Court for the Southern
District of California, captioned Jessica Gaab, et al.
v. SeaWorld Entertainment, Inc., Case No. 15:cv-842-CAB-
RBB (the "Gaab Matter"), and
(iii) the United States District Court for the Western
District of Texas, captioned Elaine Salazar Browne v.
SeaWorld of Texas LLC et al., 5:15-cv-00301-XR (the
"Browne Matter").
On May 1, 2015, the Kuhl Matter and Browne Matter were voluntarily
dismissed without prejudice by the respective plaintiffs. On May
7, 2015, plaintiffs Kuhl and Browne re-filed their claims, along
with a new plaintiff Valerie Simo, in the United States District
Court for the Southern District of California in an action
captioned Valerie Simo et al. v. SeaWorld Entertainment, Inc.,
Case No. 15:cv-1022-CAB-RBB (the "Simo Matter"). All four of these
cases, in essence, reiterate the claims made and relief sought in
the Hall Matter.
On August 7, 2015, the Gaab Matter and Simo Matter were
consolidated with the Hall Matter, and the plaintiffs filed a
First Consolidated Amended Complaint ("FAC") on August 21, 2015.
The FAC pursues the same seven causes of action as the original
Hall complaint, and adds a request for punitive damages pursuant
to California Consumers Legal Remedies Act.
On October 5, 2015, the Company filed a motion to dismiss the FAC
in its entirety. The motion was scheduled to be fully briefed on
November 23, 2015.
SEAWORLD ENTERTAINMENT: "Anderson" Suit Stays in N.D. Cal.
----------------------------------------------------------
A purported class action was filed on April 13, 2015, in the
Superior Court of the State of California for the City and County
of San Francisco against SeaWorld Parks & Entertainment, Inc.,
captioned Marc Anderson, et al., v. SeaWorld Parks &
Entertainment, Inc., Case No. CGC-15-545292. The putative class
consists of all consumers within California who, within the past
four years, purchased tickets to SeaWorld San Diego.
On May 11, 2015, the plaintiffs filed a First Amended Class Action
Complaint (the "Amended Complaint"). The Amended Complaint alleges
causes of action under the California False Advertising Law,
California Unfair Competition Law and California Consumers Legal
Remedies Act. Plaintiffs' claims are based on their allegations
that the Company misrepresented the physical living conditions and
care and treatment of its killer whales, resulting in confusion or
misunderstanding among ticket purchasers, and omitted material
facts regarding its killer whales with intent to deceive and
mislead the plaintiff and purported class members. The Amended
Complaint seeks actual damages, equitable relief, attorneys' fees
and costs. Based on plaintiffs' definition of the class, the
amount in controversy exceeds $5,000,000, but the liability
exposure is speculative until the size of the class is determined
(if certification is granted at all).
On May 14, 2015, the Company removed the case to the United States
District Court for the Northern District of California, Case No.
15:cv-2172-SC. On May 19, 2015, the plaintiffs filed a motion to
remand. On September 18, 2015, the Company filed a motion to
dismiss the Amended Complaint in its entirety. The motion has been
fully briefed. On September 24, 2015, the Court denied plaintiffs'
motion to remand. A copy of that ruling is available at
http://is.gd/k2S3wXfrom Leagle.com.
On October 5, 2015, plaintiffs filed a motion for leave to file a
motion for reconsideration of this order, and contemporaneously
filed a petition for permission to appeal to the Ninth Circuit. On
October 14, 2015, the district court granted plaintiffs' motion
for leave and set a deadline of October 29, 2015 for plaintiffs to
file their motion for reconsideration, which plaintiffs filed on
that date. The opposition to that motion was due November 12,
2015. The petition for permission to appeal remains pending,
Seaworld said in its Form 10-Q Report filed with the Securities
and Exchange Commission on November 6, 2015, for the quarterly
period ended September 30, 2015.
SHARKNINJA OPERATING: Recalls Ninja (R) Professional Blenders
-------------------------------------------------------------
Starting date: November 12, 2015
Posting date: November 12, 2015
Type of communication: Consumer Product Recall
Subcategory: Household Items
Source of recall: Health Canada
Issue: Laceration Hazard
Audience: General Public
Identification number: RA-55796
This recall involves 12 models of Ninja(R) professional blenders
with model numbers that start with BL 660, BL 663 or BL 665 The
model number is in the rating label that is molded into the bottom
of the motor base. The product is certified by Intertek.
The 12 affected model numbers are:
Blender model series Blender model number
-------------------- --------------------
BL660 BL660, BL660B, BL660C, BL660QCN,
BL660QPL, BL660W, BL660WM
BL663 BL663, BL663CO
BL665 BL665QBK, BL665QCN, and BL665QWH
All of these models have a clear 2-litre (72 ounce) pitcher with a
removable gray or black lid that opens and locks closed, a stacked
blade assembly, and one or more Nutri Ninja cups. All recalled
models have a motor base that is gray, white, black, cinnamon, or
platinum. The power of the models' motors vary from 1,000 to 1,200
watts. The recalled models may have been sold with additional
accessories, including a 1.2-litre (40 ounce) or 1.9-litre (64
ounce) bowl, a chopping blade assembly, or a dull dough blade
assembly.
The blender poses a laceration risk if consumers pour or invert
the pitcher after removing the lid while the loose stacked blade
assembly is still inside the pitcher.
Health Canada has not received any reports of consumer incidents
or injuries related to the use of these blenders.
SharkNinja has received a total of 53 reports of lacerations,
three of which were received from Canada.
Approximately 99,000 units were sold in Canada and about 1.1
million in the United States.
The blenders were sold from August 2012 to September 2015 in
Canada and the United States at various department stores and
online.
Manufactured in China.
Manufacturer: Hai Xin Technology (Shenzhen) Co. Ltd.
Shenzhen
CHINA
Distributor: SharkNinja Operating LLC
Newton
Massachusetts
UNITED STATES
Consumers should empty the blender's pitcher through the locked
lid's pour spout or by removing both the lid and the stacked blade
assembly from the pitcher before pouring. Consumers do not need to
return the blenders and can contact SharkNinja to obtain new
warnings and instructions.
For more information, consumers may contact SharkNinja toll-free
at 1-877-593-5140 from 7 a.m. to 11 p.m. ET Monday through
Saturday, 9 a.m. to 8 p.m. on Sunday or online and click "Download
New Manual" for the revised instructions.
Consumers may view the release by the US CPSC on the Commission's
website.
Please note that the Canada Consumer Product Safety Act prohibits
recalled products from being redistributed, sold or even given
away in Canada.
Health Canada would like to remind Canadians to report any health
or safety incidents related to the use of this product or any
other consumer product or cosmetic by filling out the Consumer
Product Incident Report Form.
This recall is also posted on the OECD Global Portal on Product
Recalls website. You can visit this site for more information on
other international consumer product recalls.
Pictures of the Recalled Products available at:
http://is.gd/xeSwUW
SHIRTS KIM: "Romero" Suit Seeks to Recover Unpaid Overtime Wages
----------------------------------------------------------------
Isabel Romero, and all others similarly situated v. Shirts Kim
Inc. dba Shirts Kim Dry Cleaning and Heon Dong Kim, Case No. 1:15-
cv-09602 (S.D.N.Y., December 8, 2015), seeks to recover unpaid
overtime wages pursuant to the Fair Labor Standards Act and the
New York Labor Law.
The Defendants own, operate or control a full service cleaner
which operates under the name Shirts Kim dry cleaning located in
Bronx, New York.
The Plaintiff is represented by:
Michael A. Faillace, Esq.
MICHAEL FAILLACE & ASSOCIATES, P.C.
60 East 42nd St., Ste 2540
New York, NY 10165
Tel: (212) 317-1200
E-mail: faillace@employmentcompliance.com
SOUTHERN CALIFORNIA: Faces Suits Over Massive Natural Gas Leak
--------------------------------------------------------------
Amanda Bronstad, writing for The National Law Journal, reports
that as a massive natural gas leak just north of Los Angeles
continues to surge, plaintiffs attorneys across the country are
filing suit over medical problems and lost property values.
The Oct. 23 discovery of a leaking well at an Aliso Canyon natural
gas storage facility north of downtown Los Angeles has forced
about 2,500 households in a residential area called Porter Ranch
to temporarily relocate to area hotels. Two schools have closed,
residents have complained of nosebleeds and nausea and, on Jan. 6,
California Governor Jerry Brown proclaimed a state of emergency
for Los Angeles County. Well owner Southern California Gas Co., a
subsidiary of San Diego's Sempra Energy, has so far been unable to
stop the leak.
More than 25 lawsuits have been filed, many of them class actions,
but plaintiffs attorneys predict there could be thousands of
cases, including claims for lost value on homes that average
nearly $1 million.
The lawsuits, including a public nuisance action filed in December
by the Los Angeles city attorney's office, are in the process of
being consolidated as a mass tort in Los Angeles Superior Court.
On Jan. 19, many of the plaintiffs attorneys will congregate at a
national conference in Santa Monica, California, centered on the
Aliso Canyon leak that features keynote speaker Erin Brockovich,
the paralegal turned consumer activist whose work on a groundwater
contamination case against Pacific Gas & Electric Co. was made
famous by the 2000 film that bears her name.
"It's the worst gas leak in California history," said
Brian Panish -- panish@psblaw.com -- a partner at Los Angeles-
based Panish Shea & Boyle, who is speaking at the conference. His
firm represents 1,200 residents.
"It's the largest release of this kind of natural gas ever."
The California Air Resources Board estimates that as of Jan. 8,
around 23,400 kilograms of methane per hour continues to leak out.
Southern California Gas predicted in filings with the U.S.
Securities and Exchange Commission on Jan. 6 that its legal costs
could be "significant." The company, which has $1 billion
available in insurance policies, already has spent $50 million on
fixing the problem, including providing housing allowances and
other costs associated with relocating residents. It also faces
investigations from at least seven governmental agencies, some of
which could result in massive fines, including the U.S.
Environmental Protection Agency and the Los Angeles district
attorney's office.
Southern California Gas plans to determine the extent of emissions
and its cause after completing construction of two relief wells,
the first by late February or March, that will pump cement into
the leaking well to seal it.
"We know that this situation has been frustrating and confusing
for many families in the Porter Ranch community, and we
apologize," Gillian Wright, a senior executive for Southern
California Gas said in a statement in December. "We share
everyone's concerns about this leak's ongoing impact on the
community and the environment, and we are working as quickly and
as safely as possible to stop it."
A Southern California Gas spokesperson did not return a call for
comment about the lawsuits, and James Dragna --
jim.dragna@morganlewis.com -- a partner in the Los Angeles office
of Morgan, Lewis & Bockius, who is representing the company,
declined to comment.
Although no one has died, the leak has drawn comparisons to the
2010 explosion of a gas pipeline in San Bruno, California, that
killed eight people and destroyed dozens of homes, and to the 2010
Deepwater Horizon oil rig that exploded, killing 11 people and
contaminating the Gulf of Mexico with oil.
"This was a natural fit for us," said Robin Greenwald, of counsel
to New York's Weitz & Luxenberg, who was on the plaintiffs
steering committee in the Deepwater Horizon litigation. "We spent
the last 5-1/2 years working on the BP oil spill litigation, which
has a tremendous number of similarities. There are differences:
One is oil, one gas; one air, one water. But this is a well field.
So certainly some of the lessons learned in BP will be very useful
in this case."
Weitz & Luxenberg, which is consulting with Ms. Brockovich on the
cases, is heading up the upcoming plaintiffs' bar conference at
the Loews Santa Monica Beach Hotel. Other national firms involved
are Dallas-based Baron & Budd, Seattle's Keller Rohrback and
Orlando-based Morgan & Morgan.
SUNEDISON INC: Stocks Drop Nearly 50% Over Debt, Class Suit
-----------------------------------------------------------
Andrew Moran, writing for LearnBonds, reports that SunEdison Inc
(NYSE:SUNE) is currently the worst performing clean energy
company. After an analyst's concern over the company's debt and a
securities class action lawsuit, the stock shed 15 percent
Tuesday. In the last five days, shares have tumbled nearly 50
percent.
SunEdison stock hasn't been the same since the middle of 2015.
After climbing from around $5 per share in the middle of 2012, it
soared to just over $30. Since then, however, the stock has gone
on a losing streak. From October to December of 2015, SunEdison
has plummeted 70 percent to under $3.
The company became the world's largest clean energy developer
after it spent billions of dollars in 2015 to operate in six
continents. At the same time, the firm amassed a large amount of
debt, which began to worry investors and analysts.
By the end of the September 2015, SunEdison's debt load hit $11.7
billion.
Gordon Johnson, an analyst at Axiom Capital Management, raised
concerns over its costly debt restructuring. At the same time, he
increased his rating on its shares from sell to neutral and
maintained a 12-month target price of $2 per share
Here is what he had to say on Benzinga's PreMarket Prep podcast
Tuesday:
"SunEdison amassed a massive amount of debt. SunEdison was very
aggressive in the way they were bidding for projects. If they're
unable to sell those projects, I don't know how much longer the
equity can last."
Johnson added that following the end of the yieldco story in
September, SunEdison was left with a lot projects that require a
large sum of capital. This then came with a lot of debt, says
Johnson. In other words, SunEdison swapped debt for a mix of
equity and new debt that came with higher interest payments.
Moving forward, Johnson remains "cautious" on SunEdison's ability
to last throughout 2016.
A common issue analysts say is that SunEdison doesn't reveal too
much information. This doesn't allow experts to completely analyze
the company, which then hinders the full analysis.
It was announced that a securities class action lawsuit was
started in the United States District Court for the Eastern
District of Missouri.
The lawsuit alleges that SunEdison did not have the necessary
funds to cover its high growth and dividend. In October, SunEdison
said it was laying off 15 percent of its workforce, which led to a
sharp drop in shares. This also revealed a number of disclosures
over the firm's financial condition.
It was noted in the news release that if you purchased shares
between Jun. 16 and Oct. 6 of 2015 then you have until Feb. 1 to
ask the USDC to appoint you as lead plaintiff.
This was a part of the reason the stock tumbled as high as 20
percent during the trading session.
TAISHAN GYPSUM: Faces $40K Fine for Withholding Information
-----------------------------------------------------------
The Associated Press reports that a federal judge has fined a
Chinese drywall company $40,000 plus legal costs for holding back
critical information about the whereabouts of a former official
and his computers.
He rejected the contention that Taishan Gypsum Co. Ltd. might have
destroyed or lost evidence about the case, however.
Thousands in Alabama, Florida, Louisiana, Mississippi, and Texas
and Virginia, say fumes from the drywall corroded metal and made
them ill.
Plaintiffs' attorneys said Taishan had plotted since 2009 to hold
back adverse evidence.
District Judge Eldon Fallon found Taishan responsible for an
eight-month delay in holding back testimony and documents from
Peng (PONG) Wenlong, who was Taishan's foreign trade manager when
it sold the drywall.
On Jan. 8, Judge Fallon gave the Plaintiffs' Steering Committee 30
days to list expenses related to that delay.
TIME INC: Defending "Fox" Class Suit in Michigan
------------------------------------------------
Time Inc. continues to defend a class action lawsuit commenced by
Susan Fox in Michigan, Time said in its Form 10-Q Report filed
with the Securities and Exchange Commission on November 6, 2015,
for the quarterly period ended September 30, 2015.
On October 3, 2012, Susan Fox filed a class action complaint (the
"Complaint") against Time Inc. in the United States District Court
for the Eastern District of Michigan alleging violations of
Michigan's Video Rental Privacy Act ("VRPA") as well as claims for
breach of contract and unjust enrichment. The VRPA limits the
ability of entities engaged in the business of selling, renting or
lending retail books or other written materials from disclosing to
third parties certain information about customers' purchase, lease
or rental of those materials. The Complaint alleges that Time Inc.
violated the VRPA by renting to third parties lists of subscribers
to various Time Inc. magazines. The Complaint sought injunctive
relief and the greater of statutory damages of $5,000 per class
member or actual damages.
On December 3, 2012, Time Inc. moved to dismiss the Complaint on
the grounds that it failed to state claims for relief and because
the named plaintiff lacked standing because she suffered no injury
from the alleged conduct. On August 6, 2013, the court granted, in
part, and denied, in part, Time Inc.'s motion, dismissing the
breach of contract claim but allowing the VRPA and unjust
enrichment claims to proceed.
On November 11, 2013, Rose Coulter-Owens replaced Susan Fox as the
named plaintiff. On March 13, 2015, the plaintiff filed a motion
seeking to certify a class consisting of all Michigan residents
who between March 31, 2009 and November 15, 2013 purchased a
subscription to TIME, Fortune or Real Simple magazines through any
website other than Time.com, Fortune.com and RealSimple.com.
On July 27, 2015, the court granted plaintiff's motion to certify
the class, which the Company estimates to comprise approximately
40,000 consumers. On August 31, 2015, Time Inc. and the plaintiff
moved for summary judgment and on October 1, 2015 both parties
filed briefs in opposition to their adversaries' motions. Oral
argument on the motions was scheduled for December 15, 2015.
"We intend to vigorously defend against or prosecute the matters,"
the Company said.
UBER TECHNOLOGIES: Faces Wrongful Death Suit Over Rollover Crash
----------------------------------------------------------------
Julie Kay, writing for Daily Business Review, reports that the
parents of a 20-year-old Miami student killed in December when his
Uber driver crashed into another car is suing Uber Technologies
Inc. and its driver in the rollover crash.
Andrew Yaffa of Grossman Roth Yaffa Cohen filed the wrongful death
lawsuit on Jan. 11 in Miami-Dade Circuit Court. He represents
Shafena Mohamed and Pablo Sanchez Sr., the parents of Pablo
Sanchez Jr., a Miami Dade College pharmacy student and graduate of
Miami Killian Senior High School.
"He did exactly what you would hope as a parent your child would
do," Mr. Yaffa said. "He called Uber to get home safe. This is a
horrific loss."
At about 4:00 a.m. Dec. 27, Sanchez hired Uber by cellphone to
take him home from downtown Miami. He was accompanied by several
friends. The collision was just two blocks from Sanchez's home,
Mr. Yaffa said.
The Uber driver appeared to be falling asleep when he made a left
turn and was struck by another car traveling at a fast rate of
speed, Mr. Yaffa said. Both cars rolled over. Everyone in the
Uber car got out except Sanchez, who was trapped in the back seat
when the car exploded.
Uber was sued for wrongful death and vicarious liability for
failing to properly train the driver or check his background.
The lawsuit also targets the owner of the Uber car, who was not
driving, for vicarious liability in allowing a negligent driver to
use her car. The driver of the other car also is being sued for
negligent operation of a vehicle.
UMPQUA HOLDINGS: Appeal in Class Action v. Sterling Still Open
--------------------------------------------------------------
An appeal in a class action involving Sterling Financial
Corporation remains pending, Umpqua Holdings Corporation said in
its Form 10-Q Report filed with the Securities and Exchange
Commission on November 5, 2015, for the quarterly period ended
September 30, 2015. Umpqua also said it has assumed, as
successor-in-interest to Sterling, the defense of litigation
matters pending against Sterling.
Sterling previously reported that on December 11, 2009, a putative
securities class action complaint captioned City of Roseville
Employees' Retirement System v. Sterling Financial Corp., et al.,
No. CV 09-00368-EFS, was filed in the United States District Court
for the Eastern District of Washington against Sterling and
certain of its current and former officers. On June 18, 2010, lead
plaintiff filed a consolidated complaint alleging that the
defendants violated sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 and SEC Rule 10b-5 by making false and
misleading statements concerning Sterling's business and financial
results. Plaintiffs sought unspecified damages and attorneys' fees
and costs. On August 30, 2010, Sterling moved to dismiss the
Complaint, and the court granted the motion to dismiss without
prejudice on August 5, 2013.
On October 11, 2013, the lead plaintiff filed an amended
consolidated complaint with the same defendants, class period,
alleged violations, and relief sought. On January 24, 2014,
Sterling moved to dismiss the amended consolidated complaint, and
on September 17, 2014, the court entered an order dismissing the
amended consolidated complaint in its entirety with no further
leave to amend.
On October 24, 2014, plaintiffs filed a Notice of Appeal to the
U.S. Court of Appeals for the Ninth Circuit from the district
court's order granting the motion to dismiss the amended
consolidated complaint. Appellant filed its opening brief on April
3, 2015 and the Company filed its reply brief on June 17, 2015;
additional appellate briefing was filed in the third quarter 2015.
UNITED PARCEL: Feb. 2016 Trial in "Morgate" Class Suit
------------------------------------------------------
United Parcel Service, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on November 5, 2015,
for the quarterly period ended September 30, 2015, that a court
has scheduled a trial for February 2016 in the case, Morgate v.
The UPS Store, limited to the claim of the class representative.
The Company said, "UPS and our subsidiary The UPS Store, Inc., are
defendants in Morgate v. The UPS Store, Inc. et al. an action in
the Los Angeles Superior Court brought on behalf of a certified
class of all franchisees who chose to rebrand their Mail Boxes
Etc. franchises to The UPS Store in March 2003. Plaintiff alleges
that UPS and The UPS Store, Inc. misrepresented and omitted facts
to the class about the market tests that were conducted before
offering the class the choice of whether to rebrand to The UPS
Store. The court has scheduled a trial for February 2016, limited
to the claim of the class representative. After that trial is
complete, the court will consider how to proceed with respect to
the claims of the other class members."
* * *
UPS also disclosed in its regulatory filing that in the case, AFMS
LLC v. UPS and FedEx Corporation, a lawsuit filed in federal court
in the Central District of California in August 2010, the
plaintiff asserts that UPS and FedEx violated U.S. antitrust law
by conspiring to refuse to negotiate with third-party negotiators
retained by shippers and by individually imposing policies that
prevent shippers from using such negotiators. UPS and FedEx have
moved for summary judgment. The Court granted these motions on
April 30, 2015, entered judgment in favor of UPS and FedEx, and
dismissed the case. On May 21, 2015, plaintiff filed a notice of
appeal to the Court of Appeals for the Ninth Circuit.
UPS also reported that the Antitrust Division of the U.S.
Department of Justice ("DOJ") has an open civil investigation of
the Company's policies and practices for dealing with third-party
negotiators.
"We have cooperated with this investigation. We deny any liability
with respect to these matters and intend to vigorously defend
ourselves," the Company said. "There are multiple factors that
prevent us from being able to estimate the amount of loss, if any,
that may result from these matters including: (1) the DOJ
investigation is pending; (2) the Court granted our motion for
summary judgment; and (3) plaintiff has filed a notice of appeal.
Accordingly, at this time, we are not able to estimate a possible
loss or range of loss that may result from these matters or to
determine whether such loss, if any, would have a material adverse
effect on our financial condition, results of operations or
liquidity."
UNITED PARCEL: 1 Class Suit Remains Open in Ontario
---------------------------------------------------
United Parcel Service, Inc. is defending one outstanding class
action case in Ontario, it revealed in its Form 10-Q Report filed
with the Securities and Exchange Commission on November 5, 2015,
for the quarterly period ended September 30, 2015.
"In Canada, four purported class-action cases were filed against
us in British Columbia (2006); Ontario (2007) and Quebec (2006 and
2013)," the Company said. "The cases each allege inadequate
disclosure concerning the existence and cost of brokerage services
provided by us under applicable provincial consumer protection
legislation and infringement of interest restriction provisions
under the Criminal Code of Canada. The British Columbia class
action was declared inappropriate for certification and dismissed
by the trial judge. That decision was upheld by the British
Columbia Court of Appeal in March 2010, which ended the case in
our favor. The Ontario class action was certified in September
2011. Partial summary judgment was granted to us and the
plaintiffs by the Ontario motions court. The complaint under the
Criminal Code was dismissed. No appeal is being taken from that
decision."
"The allegations of inadequate disclosure were granted and we are
appealing that decision. The motion to authorize the 2006 Quebec
litigation as a class action was dismissed by the motions judge in
October 2012; there was no appeal, which ended that case in our
favor. The 2013 Quebec litigation also has been dismissed. We deny
all liability and are vigorously defending the one outstanding
case in Ontario."
"There are multiple factors that prevent us from being able to
estimate the amount of loss, if any, that may result from this
matter, including: (1) we are vigorously defending ourselves and
believe that we have a number of meritorious legal defenses; and
(2) there are unresolved questions of law and fact that could be
important to the ultimate resolution of this matter. Accordingly,
at this time, we are not able to estimate a possible loss or range
of loss that may result from this matter or to determine whether
such loss, if any, would have a material adverse effect on our
financial condition, results of operations or liquidity."
UNITED PARCEL: Accord in Price-Fixing Case Awaits Final Approval
----------------------------------------------------------------
In January 2008, a class action complaint was filed in the United
States District Court for the Eastern District of New York
alleging price-fixing activities relating to the provision of
freight forwarding services. United Parcel Service, Inc. was not
named in this case.
In July 2009, the plaintiffs filed a First Amended Complaint
naming numerous global freight forwarders as defendants. UPS and
UPS Supply Chain Solutions are among the 60 defendants named in
the amended complaint.
After two rounds of motions to dismiss, in October 2014, UPS
entered into a settlement agreement with the plaintiffs to settle
the remaining claims asserted against UPS for an immaterial
amount. The court granted preliminary approval of the settlement
on December 16, 2014. The settlement is subject to final court
approval, which was scheduled to be considered by the Court in
November 2015, UPS said in its Form 10-Q Report filed with the
Securities and Exchange Commission on November 5, 2015, for the
quarterly period ended September 30, 2015.
UNITED STATES: Class Suit against IRS Certified by Federal Judge
----------------------------------------------------------------
Stephen Dinan, writing for The Washington Times, reports that a
federal judge certified a class-action lawsuit against the IRS for
its political targeting, advancing the cause of more than 200 tea
party groups who said they were denied their First Amendment
rights by the tax agency's actions.
Judge Susan J. Dlott in the Southern District of Ohio issued an
order certifying the class, though she sealed the order for now to
protect private taxpayer information.
Edward Greim, one of the lawyers advancing the tea party groups'
case, said the certification is a major step because it means the
judge has agreed that the IRS did systematically target more than
200 groups for special scrutiny.
"It's the court recognizing that all the plaintiffs were treated
the same way," he said. "The only remaining question at that point
is whether it was legally permissible to treat the plaintiffs that
way."
The IRS said it couldn't comment on pending litigation.
In the past the agency had argued that the targeting was not an
organized policy but rather an overzealous pursuit by individual
employees confused about how to handle nonprofit groups'
applications after the Supreme Court's Citizens United ruling.
But Mr. Greim said the judge's ruling punctures that explanation,
finding that the IRS singled out tea party groups' applications
based on four criteria.
The tax agency delayed those applications while it demanded
answers to extensive questionnaires -- including questions the
agency has since admitted were intrusive and shouldn't have been
asked.
The delays persisted for years in many cases, and some groups
still haven't been approved nearly three years after the IRS said
it stopped the targeting. One of those, the Texas Patriots Tea
Party, which was one of the original plaintiffs in the class
action lawsuit, applied in 2012 and is still awaiting approval,
Mr. Greim said.
Certifying the class allows any of the more than 200 groups that
were subjected to the criteria to join the lawsuit.
Now that the class has been certified, the case moves to the
discovery stage, where the tea party groups' lawyers will ask for
all of the agency's documents related to the targeting and will
depose IRS employees about their actions.
The lawyers hope they'll be able to learn details Congress was
unable to shake free in its own investigations.
Mr. Greim said he hopes former IRS senior executive Lois G. Lerner
will be one of the employees he deposes in the case.
Ms. Lerner was at the center of the targeting, and was the one who
revealed the scandal after she planted a question at a forum.
She refused to talk to Congress, asserting her Fifth Amendment
right against self-incrimination. The House held her in contempt
of Congress, but the Obama administration refused to pursue the
case.
The Justice Department has concluded its own criminal
investigation into the IRS and said the targeting was the result
of bad management. But investigators said they found no criminal
behavior, and specifically cleared Ms. Lerner, saying her fellow
employees said she tried to correct the problems when she learned
of them.
Republicans dismissed the investigation as a whitewash by the
Obama administration.
The class action case is NorCal Tea Party Patriots v. Internal
Revenue Service. The case is being funded by Citizens for Self-
Governance, and is being fought by several law firms on behalf of
tea party groups.
The case is being heard in Ohio because the office responsible for
handling nonprofit applications is based in Cincinnati.
UNIVERSAL PROTECTION: "Dimery" Suit Alleges FLSA Violations
--------------------------------------------------------
Terry Dimery and Terry Prestridge, and all others similarly
situated v. Universal Protection Service, LLC and Universal
Protection Service, LP, Case No. 6:15-cv-02064 (M.D. Fla.,
December 8, 2015), is brought against the Defendants for failure
to pay overtime in violation of the Fair Labor Standards Act.
The Defendants offer security services to its clients and employ
workers to monitor premises and ensure safety on behalf of those
clients.
The Plaintiffs are represented by:
Bradley W. Butcher, Esq.
BUTCHER & ASSOCIATES, P.L.
6830 Porto Fino Circle, Suite 2
Fort Myers, FL 33912
Tel: (239) 332-1650
Fax: (239) 322-1663
E-mail: ecf@b-a-law.com
VOLKSWAGEN: Altroconsumo to Appeal Rejected Class Action
--------------------------------------------------------
Agnieszka Flak, writing for Reuters, reports that Italian consumer
group Altroconsumo will launch an appeal after a court rejected
its class action case against Volkswagen in which it accused the
carmaker of understating the level of carbon dioxide emissions in
one of its models.
Altroconsumo filed the class action in September 2014, long before
Volkswagen was engulfed in a scandal over its cheating of diesel
emissions tests and before it admitted to understating fuel
consumption on about 36,000 cars.
The consumer group had filed a similar class action against Fiat
Chrysler that was rejected by a lower court, but later accepted
after an appeal.
"For this we are more than confident and move forward. Our battle
for transparency continues," Marco Pierani, Altroconsumo's head of
external relations, said in a statement.
Altroconsumo said in 2014 it had done laboratory tests on a
Volkswagen Golf 1.6 TDI BM model, which resulted in emissions 50
percent higher than those declared by the carmaker.
In the class action it asked that Volkswagen be ordered to pay
around 500 euros ($542) in damages to each owner of the tested
model. The class action was lodged with a court in Venice, whose
catchment area covers the city of Verona, where Volkswagen has its
Italian headquarters.
So far, 9,645 people have signed the class action at this
preliminary stage.
VOLKSWAGEN AG: Faces "Fusco" Class Suit in Calif. Ct.
-----------------------------------------------------
Luigi Fusco, and all others similarly situated v. Volkswagen AG,
Volkswagen Group of America, Inc., and Audi AG, Case No. 3:15-cv-
05591 (N.D. Calif., December 8, 2015), seeks to remedy the
Defendants' alleged premediated scheme to defraud consumers.
Since 2009, over 482,000 diesel Volkswagen and Audi vehicles sold
in the United States were sold with a "defeat device" to create
the impression of high fuel efficiency and high performance with
extremely low emissions.
The Defendants are auto manufacturers.
The Plaintiff is represented by:
Michael Hoffman, Esq.
HOFFMAN EMPLOYMENT LAWYERS, LLP
580 California Street, Ste 1600
San Francisco, CA 94104
Tel: (415) 362-1111
Fax: (415) 362-1112
VOLKSWAGEN AG: Jan. 21 Hearing Set for Lead Counsel Motions
-----------------------------------------------------------
Ross Todd, writing for The Recorder, reports that more than 140
law firms have applied for leadership positions in litigation
targeting Volkswagen A.G. over the company's "clean diesel"
emissions scandal. Among the contenders are firms such as Quinn
Emanuel Urquhart & Sullivan and Boies, Schiller & Flexner, which
are not typically seen on the plaintiffs side of class action
litigation.
VW admitted in 2015 that it equipped hundreds of thousands of
vehicles in the U.S. with software designed to cheat emissions
tests. In December, the Judicial Panel on Multidistrict
Litigation consolidated more than 500 lawsuits filed against the
company before U.S. District Judge Charles Breyer of the Northern
District of California.
Some of the leading names in the plaintiffs bar, including Hagens
Berman Sobol Shapiro's Steven Berman, Hausfeld LLP's Michael
Hausfeld, and Lieff Cabraser Heimann & Bernstein's Elizabeth
Cabraser are vying to lead the suit on behalf of VW purchasers and
lessees. But beyond those big names in consumer protection,
leaders of two of the largest and most profitable litigation firms
in the country, Quinn Emanuel's John Quinn and Boies Schiller's
David Boies, have joined the competition.
The VW emissions suit marks the first time in Mr. Quinn's 40-year
legal career that he's applied for a multidistrict litigation
leadership position. He previously litigated against VW nearly 20
years ago, winning a settlement valued at $1.1 billion on behalf
of General Motors in a trade secrets dispute.
In his application, Mr. Quinn pointed to his firm's three offices
and 27 lawyers in Germany as strategic advantage. European
privacy laws, he wrote, raise unique data-transfer issues in
discovery and German courts have been hostile to U.S.-style
discovery requests. "Our German lawyers are very experienced at
navigating the conflicts that can arise between U.S. discovery and
German and EU law," he wrote.
Mr. Hausfeld, likewise, can point to his firm's presence in
Germany, although Hausfeld LLP's German affiliate is much smaller
than Quinn Emanuel's. Mr. Hausfeld's firm has a small Berlin
office staffed by two partners and two associates. Mr. Hausfeld,
however, is hoping that his recent history of working on a pair of
antitrust class actions against airlines before Breyer will play
to his advantage. In response to the judge's request for judicial
references, Mr. Hausfeld wrote that Judge Breyer "has had
extensive experience with me and [my firm]," before naming a half-
dozen additional federal jurists.
Pointing to the public-policy questions at play in the MDL,
David Boies wrote that anyone leading the VW suits needs the
ability to work alongside U.S. Department of Justice lawyers
pursuing parallel claims. Mr. Boies, who filed joint complaints
in multiple district court cases alongside Robbins Geller Rudman &
Dowd, called out his own experience working for the government as
special trial counsel in the antitrust case against Microsoft
Corp. Mr. Boies wrote that he "fully anticipate[s] a productive
relationship with the DOJ and its lawyers" should he be chosen to
lead the VW suit.
After filing multiple suits across the country in a relationship
similar to that between Boies Schiller and Robbins Geller,
John Quinn endorsed Hagens Berman's Steven Berman as his potential
co-lead counsel. The Quinn firm and Hagens Berman previously
worked on opposite sides in consumer litigation over fuel-
efficiency claims made by Hyundai Motor America and Kia Motors
America Inc.
Mr. Berman has held leadership posts on a pair of other automotive
suits, one targeting Toyota over sudden unexplained acceleration
and another claiming General Motors vehicles have faulty ignition
switches. Mr. Berman will likely have to miss the hearing over
the VW lead counsel appointment before Judge Breyer because he's
trying the first bellwether trial in the General Motors MDL. The
trial was set to start on Jan. 11.
Like Mr. Berman, Elizabeth Cabraser can boast of leadership
positions on multiple ongoing auto-related MDLs. In her
application, Ms. Cabraser called the VW case "unusual" because it
presents a "large, ascertainable, and engaged nationwide class"
and a defendant that has already admitted to being at least
partially liable. "This case should settle, fully and swiftly,"
she wrote. She has the support of 67 other firms with cases in
the VW MDL. (By comparison, 17 support Berman.)
Edwards Kirby's John Edwards is among the lawyers asking for a
spot on the plaintiff steering committee. The former U.S. senator
and 2008 Democratic vice presidential nominee wrote that he's met
personally with foreign heads of state, including German
Chancellor Angela Merkel. "Having personally met with Chancellor
Merkel, I believe I can assist in working directly with"
government entities that provide funding for VW, he wrote. "As VW
may be interested in settling all global claims concurrently,
working with foreign counsel and/or governments may become
necessary to productive settlement discussions."
A hearing on the motions to serve as lead counsel is set for
Jan. 21.
Meanwhile, Judge Breyer on Jan. 11 said he plans to appoint former
FBI director Robert Mueller, a partner at Wilmer Cutler Pickering
Hale and Dorr, to oversee settlement negotiations in the class
actions.
"There are few, if any, people with more integrity, good judgment,
and relevant experience than Mr. Mueller," Judge Breyer wrote.
VOLKSWAGEN AG: Judge to Appoint Mueller as Settlement Master
------------------------------------------------------------
Amanda Bronstad, writing for The National Law Journal, reports
that a federal judge plans to appoint former FBI director
Robert Mueller -- robert.mueller@wilmerhale.com -- to oversee
settlement negotiations in the class actions filed over Volkswagen
A.G.'s emissions scandal.
In an order on Jan. 11, U.S. District Judge Charles Breyer said
that Mr. Mueller's government and private-practice experience make
him "uniquely qualified to work and earn the trust of the
parties." Those parties include consumer and car dealer
plaintiffs, the U.S. government, state governments and Volkswagen.
Mr. Mueller is a partner at Wilmer Cutler Pickering Hale and Dorr
focusing on crisis management and cybersecurity.
"There are few, if any, people with more integrity, good judgment,
and relevant experience than Mr. Mueller," Judge Breyer wrote.
Judge Breyer has given lawyers until Jan. 15 to respond to his
choice.
Mr. Mueller, who was FBI director from 2001 to 2013, was not among
the 28 names submitted by plaintiffs lawyers who have filed more
than 500 lawsuits against Volkswagen.
Judge Breyer had asked lawyers to submit names for the settlement
post, although judges can make such appointments on their own.
Leading contenders among the plaintiffs bar had been retired U.S.
District Judge Layn Phillips, former U.S. Magistrate Judge Edward
Infante of the Northern District of California and famed claims
administrator Kenneth Feinberg, whom Volkswagen hired on Dec. 17
to create an out-of-court compensation fund for an estimated
500,000 U.S. customers.
"I don't think anybody saw this one coming," said Frank Pitre of
Cotchett, Pitre & McCarthy in Burlingame, California, although he
noted that Judge Breyer "always thinks outside the box."
As special settlement master, Mr. Mueller will have no role in
assisting Judge Breyer with any court decisions but will
"facilitate settlement discussions among the various parties,"
according to the judge's order.
Unlike many of the people lawyers suing Volkswagen recommended,
Mr. Mueller isn't known for his work as a mediator or arbitrator.
"A lot of lawyers on both sides are into people that are mediating
various cases -- different groups at these mediation companies,"
said Mark Robinson, a senior partner at Robinson Calcagnie
Robinson Shapiro Davis in Newport Beach, California. "And I think
we never thought to pick somebody like this -- who was ex-director
of the FBI."
In September, Volkswagen admitted that more than 11 million diesel
vehicles worldwide had a defeat device in them designed to cheat
emissions tests. Customers allege they were duped into paying
premium prices for "clean diesel" cars that the U.S. Environmental
Protection Agency has said emit as much as 40 times the standard
for nitrogen oxides.
The appointment of a special settlement master comes after the
Justice Department sued Volkswagen on Jan. 4 for violations of the
Clean Air Act that could result in fines of more than $18 billion.
Volkswagen was scheduled to meet with EPA officials on Jan. 13.
Stephanie Goldstein, a spokeswoman for Wilmer, said Mr. Mueller
declined to comment, but she provided this statement: "Mr. Mueller
appreciates Judge Breyer's proposal that he serve as the
settlement master for the Volkswagen multidistrict litigation
cases."
Mr. Wilmer represents PricewaterhouseCoopers A.G., Volkswagen's
auditor, and has been retained by Volkswagen for advice on U.S.
tax implications of the emissions scandal, according to a Jan. 8
letter attached to Judge Breyer's order. In the letter,
Mr. Mueller said he hasn't been involved in any of the Volkswagen
matters and that the firm's attorneys who have would be "walled
off" from his work as special settlement master.
VOLKSWAGEN GROUP: Faces "Baldwin" Suit Over "Clean Diesel" Cars
---------------------------------------------------------------
Christopher Baldwin, Individually and on behalf of all others
similarly situated, v. Volkswagen Group Of America, Inc. and
Volkswagen AG, Case 3:15-cv-05623-DMR (N.D.Cal., December 9,
2015), accuses Defendants of intentionally, deliberately, and
maliciously designing, manufacturing, and distributing hundreds of
thousands of its purportedly "clean diesel" vehicles with a
software algorithm that would enable the vehicle to falsely appear
to pass the federal and state clean air emissions standards.
Defendants are automobile design, manufacturing, distribution,
and/or service corporations doing business within the United
States.
The Plaintiff is represented by:
James Robert Noblin., Esq.
GREEN & NOBLIN P.C.
2200 Larkspur Landing Circle, Suite 101
Larkspur, CA 94939
Phone: (415) 477-6700
Fax: (415) 477-6710
E-mail: gnecf@classcounsel.com
- and -
William B. Federman., Esq.
FEDERMAN & SHERWOOD
10205 North Pennsylvania
Oklahoma City, OK 73120
Phone: (405) 235-1560
Fax: (405) 239-2112
E-mail: wbf@federmanlaw.com
WAL-MART STORES: "Darnell" Suit Alleges FLSA Violation
------------------------------------------------------
Virginia Darnell, Yolanda George, and all others similarly
situated v. Wal-Mart Stores, Inc., and Wal-Mart Associates, Inc.,
Case No. 4:15-cv-00074 (E.D. Tenn., December 8, 2015), is brought
against the Defendants for unpaid wages and overtime in violation
of the Fair Labor Standards Act.
Wal-Mart Stores is an American multinational retail corporation
that operates a chain of hypermarkets, discount department stores
and grocery stores.
The Plaintiffs are represented by:
Gordon E. Jackson, Esq.
JACKSON, SHIELDS, YEISER & HOLT
262 German Oak Drive
Memphis, TN 38018
Tel: (901) 754-8001
Fax: (901) 754-8524
E-mail: gjackson@jsyc.com
WESTERN UNION: Lacks Standing to Challenge Class Atty Fees
----------------------------------------------------------
Emma Gallimore, writing for Legal Newsline, reports that the U.S.
Court of Appeals for the Tenth Circuit has ruled that Western
Union has no standing to object to a class action attorneys fee
award.
A class action lawsuit brought against Western Union challenged
the financial services company's practice of retaining funds and
collecting interest on funds when a transfer failed to process.
This is most often caused by invalid contact information or by
intended recipients not retrieving money that was sent.
"Some of the money that should have been paid to the class was
actually the members' money," Ronald F. Wick of Cozen O'Connor
told Legal Newsline. "Western Union never disputed in many of
those cases that it owed the money."
The issue came when the plaintiffs attorneys calculated their fee
award -- "There was nothing in the settlement about the award,"
Wick said.
The settlement agreement stated that Western Union would place all
unredeemed consumer money into a settlement fund. This fund would
be used to issue refunds to class members.
Members could also receive payments for interest accrued on their
money. The interest payments would come either from the settlement
fund or from a separate fund established by Western Union
depending on whether the funds had already become state property
under state escheat law.
After the settlement agreement was complete, class counsel
calculated their award at 30 percent of the full value of the $135
million settlement fund. Western Union objected.
The company said that because a portion of the funds already
belonged to class members, the value gained by members was not
equal to the total settlement value, and therefore, the award
should be calculated based on a lower number.
It is almost unheard of that a defendant in a class action suit
objects to a settlement award, O'Connor said. Usually some
provision for the award is made in the settlement itself, and both
parties agree on it before any formal calculation takes place.
The actual payment would come out of the settlement, not out of
Western Union's pocket. So, when Western Union objected, the Tenth
Circuit was asked to decide whether Western Union had any standing
to object to the fee award.
In order for Western Union to have any claim to the money in the
settlement, a series of conditions would have to be met. First
there had to be money left over in the settlement fund. Then a cy
pres fund, a fund from which money could not be paid to class
action members needed to exist.
Finally, one or more states would have to refuse to accept pro
rata payments and release Western Union, creating a third fund. If
this fund was created at all, Western Union's rights to it would
be limited to reimbursement for costs accrued during the suit.
"The court said that was too many ifs," Wick said. "The Tenth
Circuit did not rule that the fee had to be paid, just that
Western Union had no standing."
YAHOO INC: Settles E-mail Privacy Class-Action
----------------------------------------------
Joe Mullin, writing for Ars Technica, reports that in late 2013,
Yahoo was hit with six lawsuits over its practice of using
automated scans of e-mail to produce targeted ads. The cases,
which were consolidated in federal court, all argued that the
privacy rights of non-Yahoo users, who "did not consent to Yahoo's
interception and scanning of their emails," were being violated by
a multi-billion dollar company.
Now, lawyers representing the plaintiffs are singing a different
tune. They asked US District Judge Lucy Koh to accept a proposed
settlement. Under the proposal, the massive class of non-Yahoo
users won't get any payment, but the class lawyers at Girard Gibbs
and Kaplan Fox intend to ask for up to $4 million in fees. (The
ultimate amount of fees will be up to the judge, but Yahoo has
agreed not to oppose any fee request up to $4 million.)
While users won't get any payment, Yahoo will change how it
handles user e-mails -- but it isn't the change that the
plaintiffs attorneys were originally asking for. Yahoo won't stop
scanning e-mails. Instead, the company has agreed to make a
technical change to when it scans e-mails. In the settlement,
Yahoo has agreed that e-mail content will be "only sent to servers
for analysis for advertising purposes after a Yahoo Mail user can
access the email in his or her inbox."
The settlement deal looks pretty similar to what Yahoo had argued
it did in the first place. Yahoo had argued in court that it
didn't violate the main privacy law at issue, the California
Invasion of Privacy Act, because it "does not read or learn the
content of emails for advertising purposes until after the emails
have been delivered."
Yahoo has said that it will be making "material changes" to its
e-mail systems, which will involve "substantial effort and cost,"
because of the lawsuit. But the main difference seems to be an
issue of timing. Should user e-mails get scanned once they arrive
at Yahoo servers -- as Yahoo has described the system since the
start of the suit? Or will they only be scanned "after a user can
access the email," the system Yahoo has now agreed to create at
substantial cost?
Plaintiffs' lawyer Laurence King didn't respond to requests from
Ars for comment about the settlement. King told The Recorder,
which first reported the settlement, that he believes the
settlement brings Yahoo's practices "into compliance with
California law." He didn't respond to questions about how the
settlement advances the privacy of his clients.
"Yahoo is pleased to have resolved this matter, subject to the
Court's approval," a Yahoo spokesperson told Ars. "Yahoo denies
any wrongdoing and it notes that the Court has not issued any
ruling that Yahoo acted unlawfully."
The proposed settlement doesn't make clear exactly what changes
Yahoo will make that satisfy the plaintiffs, but the changes have
nothing to do with the issues that plaintiffs cited when they were
seeking to win the case. In a partly redacted September filing,
class counsel said that Yahoo's "invasion of the privacy of class
members constitutes an irreparable injury." At that time,
plaintiffs sought an injunction that would force Yahoo to stop its
actions without getting "consent" and would require the company to
"permanently delete all information it has collected and stored
from class members' email."
Plaintiffs argued that Yahoo could stop scanning e-mails for ad
purposes if it wanted to, while continuing to scan for spam and
abuse. In fact, they said, that's exactly what Yahoo does in the
United Kingdom, where consent is required from both sender and
receiver before e-mail is scanned for ad targeting.
In September, the plaintiffs described their case this way:
In exchange for receiving 'free' basic service email, Yahoo
subscribers agree to allow Yahoo to 'scan' their incoming and
outgoing email, analyze the content, and use the content for the
purpose of providing targeted advertising, one of the company's
main sources of revenue. . . . Plaintiffs allege that Yahoo
intercepts the email they and other non-Yahoo Mail subscribers
send to and receive from Yahoo Mail subscribers, reads or learns
its contents and meaning, and then uses the content for commercial
purposes, all without obtaining their consent.
That behavior violated the law, they said in September. But now,
class lawyers are celebrating a settlement that will change none
of those practices. In fact, it explicitly authorizes them.
The cases against Yahoo were part of a spate of Internet privacy
lawsuits filed in the past several years. Many of those lawsuits
claimed that widespread Internet practices, like e-mail scanning
or the various forms of tracking, violated state and federal pre-
Internet privacy laws. Some of these cases were shot down, while
others resulted in significant settlements.
* Employment Lawyers Say Tech Companies Must Address Sexism Issue
-----------------------------------------------------------------
Rebekah Mintzer, writing for Corporate Counsel, reports that
Ellen Pao may have lost her gender discrimination case against
famed venture capital firm Kleiner Perkins Caufield Byers, but she
did succeed in triggering a national conversation about women's
treatment in the workplace, especially in the technology sector.
New life was breathed into that conversation on Jan. 11, when a
group of Silicon Valley bigwigs released a survey that backs up
Ms. Pao's allegations of sexism in the tech sector. Employment
lawyers say that companies need to be taking firm stands against
the sort of discrimination highlighted in the report.
The report, "Elephant in the Valley," is based on interviews with
women in leadership roles at startups, venture capital firms and
large tech companies in the Bay Area. Almost 90 percent of the
respondents said they'd had clients and colleagues address
questions to male peers that should have been addressed to them
and 47 percent said they'd been asked to do lower level tasks that
male colleagues were not asked to do.
Another striking data point from the survey was that 60 percent of
women had experienced unwanted sexual advances from someone at
work over the course of their careers. In half of these cases,
the unwanted advances happened more than once, and 65 percent of
the time, they came from a superior.
The report's authors include two titans of the venture capital
scene in Silicon Valley, Trae Vassallo and Ellen Levy.
Ms. Vassallo is a former Kleiner Perkins partner and testified at
Pao's trial that she had also experienced sexual harassment at the
firm. She continues to serve as an adviser to the firm.
The data is disheartening, but employment law experts say there
are steps in-house counsel can take, no matter what industry they
work in, to reduce the risk of harassment and discrimination at
their companies.
Companies can take a stand against this type of behavior through
clear messaging, starting with policies and training.
Anti-harassment and anti-discrimination policies are a legal
necessity to help companies both discourage potential harassers
and discriminators and protect themselves from claims.
Then there's the ever-important issue of training employees about
what behaviors aren't tolerated at work. "When I say 'training'
it can sound boring or futile," says Megan Winter, a partner at
Fisher & Phillips. "But what I'm really talking about is a good,
live training on anti-harassment and anti-discrimination
management practices." Winter recommends inviting members of the
C-Suite or upper-level management to training sessions to get
across just how important it is to the whole organization.
Although some companies opt for internal training, a third-party
trainer has plenty of advantages. "I think for better or for
worse people might be more likely to tune out their own HR rep, as
opposed to having a third party come in," says Winter.
Policies and training are essential, but if people are discouraged
from speaking out about harassment and discrimination when they
happen, these strategies may not be very useful. Plenty of the
women surveyed didn't seem to have much faith in the way
harassment claims would be handled if they opted to speak out.
Some 60 percent were dissatisfied with the course of action after
they reported an incident. Many of the women who had been
harassed that chose not to report -- 39 percent -- believed that
by speaking up they would have impacted their career negatively.
Barry Hartstein, a partner at Littler Mendelson, says that
companies need to have strong procedures to address complaints and
use good tone from the top to articulate that allegations will be
taken seriously. But he acknowledges that it can be tough to make
people feel comfortable about reporting harassment. "The question
from my vantage point is, how can employers let employees know:
'we take this seriously, we want you to come forward,'" he says.
"I guess only though success stories can that be proven."
The survey also asked about how women's family lives were viewed
at work. Some 75 percent of respondents said that they were asked
about their family life, marital status and children in
interviews. In some states, that's actually illegal, as they
incorporate marital status as a protected category. But even in
states where these rules aren't on the books, experts say that
bringing up these topics is a definite danger, as they can easily
give the impression that gender is being used as a factor in
hiring.
Sometimes though, when interviews turn to more casual small talk,
details about family life may come up accidentally, something
Mr. Hartstein says both the interviewer and the job applicant need
to be careful of. "It may very well be the type of information
that's volunteered," says Mr. Hartstein. "So I do think it's a
two-way street."
There are still flagrant instances of gender-based discrimination
in the workplace. But as employers have become more sophisticated
and cautious in the way they think about protected
characteristics, the way gender bias presents itself may not be so
readily apparent.
Mr. Hartstein says that unconscious bias is a big topic for equal
employment opportunity lawyers, and the plaintiffs bar is well
aware of how unconscious biases can be used to build a
discrimination case. When companies talk about diversity, they
are increasingly making people aware of the hidden biases they
might not even be fully aware of. "I think part of diversity
training could and very well should address that issue," says
Mr. Hartstein. "So people think about it."
* Pennsylvania Courts Address Rule 1702 Class Certification Issues
------------------------------------------------------------------
Kenneth L. RaCowski, writing for The Legal Intelligencer, reports
that the certification of a class is arguably the most critical
juncture in a class action lawsuit. Over the past several years,
the requirements for class certification have been evolving.
Plaintiffs' class allegations continue to face heightened scrutiny
at the certification stage. In 2015, Pennsylvania's federal
courts frequently addressed the appropriate scope and application
of the requirements of Federal Rules of Civil Procedure 23. This
year-in-review discusses notable opinions from the court of
appeals and district courts. Pennsylvania's state courts also
issued several opinions addressing the requirements of Rule 1702,
which this review also discusses.
Scrutiny of Expert Testimony
The U.S. Court of Appeals for the Third Circuit vacated
certification of a class of buyers of reagents used in blood tests
in In re Blood Reagents Antitrust Litigation, 783 F.3d 183 (3d
Cir. 2015), because, post-Comcast, a plaintiff cannot rely on
challenged expert testimony to satisfy Rule 23 requirements unless
the expert testimony satisfies the Daubert standard. The district
court had found that the plaintiffs' expert evidence for their
antitrust impact analysis and damages model "could evolve" to
become admissible evidence satisfying Rule 23. The Third Circuit
found that the "could evolve" standard could not be reconciled
with the Supreme Court's requirement of "rigorous analysis" at the
class certification stage. On remand, the district court
recertified the class and found that the methodologies for
calculating classwide damages put forth by the plaintiffs' expert
survived Daubert. Nonetheless, the law of the Third Circuit is
now in line with various other circuits in requiring that
challenges to expert evidence proffered to meet Rule 23
requirements must pass Daubert analysis for a class to be
certified by the district court.
Predominance as to Damages
In King Drug Co. of Florence v. Cephalon, 702 F.Supp.2d 514
(2010), the court certified a class of direct purchasers of
Provigil in a consolidated antitrust lawsuit. The defendants
contended that the plaintiffs could not demonstrate classwide
antitrust damages without individualized inquiries. The court
rejected the argument that some variation among damages
calculations of class members was enough to automatically defeat
predominance. A few days earlier, the Third Circuit had explained
that "it is a misreading of Comcast to interpret it as
preclud[ing] certification under Rule 23(b)(3) in any case where
the class members' damages are not susceptible to a formula for
classwide measurement," in Neal v. Volvo Cars of North America,
794 F.3d 353, 375 (3d Cir. 2015). Citing Neal, the court in King
Drug found that the plaintiffs had provided a "reliable aggregate
damages model" that matched their theory of liability and impact,
and therefore satisfied predominance. An appeal has been filed
with the Third Circuit.
Lack of Ascertainability
Ascertainability is a necessary prerequisite to a Rule 23(b)(3)
class that ensures that a proposed class will actually function as
a class throughout the litigation. In 2015, ascertainability
remained a critical component of the class certification analysis
undertaken by Pennsylvania's federal courts when determining
whether to certify a class under Rule 23.
In Byrd v. Aaron's, 784 F.3d 154 (3d Cir. 2015), the Third Circuit
reiterated its standard for a two-fold ascertainability inquiry.
It requires a plaintiff to show that (1) the class is "defined
with reference to objective criteria" and (2) there is "a reliable
and administratively feasible mechanism for determining whether
putative class members fall within the class definition." In
applying this test, the Third Circuit reversed the district
court's denial of class certification because there were
"objective records" that "readily identified" class members.
In a notable concurring opinion, Judge Marjorie Rendell criticized
the Third Circuit's ascertainability standard as too rigorous and
narrowing the availability of certification in consumer class
actions "in a way that the drafters of Rule 23 could not have
intended." Similar criticism of the Third Circuit's test has led
to a split with the Seventh Circuit, which may ultimately be
resolved by the Supreme Court. Until that time, the
ascertainability requirement as articulated in Byrd remains the
law of the Third Circuit.
In 2015, several notable district court opinions relied upon the
lack of ascertainability as a basis for denying class
certification. A class of indirect purchasers alleging that
defendant drugmakers delayed entry of generic versions of an
antidepressant into the market by entering into patent litigation
settlement agreements with generic drug companies was decertified
in In re Wellbutrin XL Antitrust Litigation, 308 F.R.D. 134 (E.D.
Pa. 2015). The court found that while third-party payors such as
health insurers and welfare benefit plans paid some or all of the
retail purchase price of the drug, the plaintiffs could not
ascertain which pharmacy benefit managers, if any, and which
individual consumers were members of the class. An appeal is
pending.
In Vista Healthplan v. Cephalon, C.A. No. 2:06-cv-1833 (E.D. Pa.
June 10, 2015), the court denied certification to a proposed class
of consumers and third-party payors that purchased the drug
Provigil. The court found ascertainability lacking because the
record contained no reliable retail records of patients' purchases
and plaintiffs failed to present an administratively feasible
methodology for identifying class members.
In multidistrict litigation alleging a conspiracy by producers to
raise egg prices, the court rejected an enormous consumer class
that could potentially have included almost every American
household, in In re Processed Egg Products Antitrust Litigation,
No. 08-md-2002 (E.D. Pa. Nov. 10, 2015). In the absence of
purchase receipts, affidavits of potential class members were
insufficient to allow "defendants to identify and challenge false
claims" in accordance with their due process right. While the
court rejected the indirect purchaser consumer class, two days
later it certified a subclass of direct purchasers of shell eggs
that posed no ascertainability problems.
Other Class Certification Decisions
In In re Actiq Sales & Marketing Practices Litigation, 307 F.R.D.
150 (E.D. Pa. 2015), the court denied certification to third-party
payors that alleged unjust enrichment through off-label marketing
of the painkiller Actiq. The class failed Rule 23's predominance
requirement because it would require individualized inquiries into
each third-party payor's decision to provide coverage for the
drug. It also failed the superiority requirement because of
differences among the unjust enrichment laws of the plaintiffs'
home states.
The Third Circuit rejected the defendant's attempt to decertify a
class of borrowers who alleged that the bank had engaged in a
predatory lending scheme, in In re Community Bank of Northern
Virginia Mortgage Lending Practices Litigation, 795 F.3d 380 (3d
Cir. 2015). As to commonality, the court found that even though
the fees charged to putative class members varied in type and
amount, individualized loan inquiries were unnecessary because the
same alleged conduct harmed the class members in the same way.
Scrutiny of Class Action Settlements
Under Rule 23(e), a class action settlement must be "fair,
reasonable, and adequate" to gain court approval. In 2015, two
cases grabbed national headlines for their rejection of high-
profile settlement agreements.
The NFL's settlement of multidistrict litigation involving former
players seeking damages for concussions and degenerative
neurological conditions received the court's final approval after
a prior version of the settlement was rejected the year before, in
In re National Football League Players' Concussion Injury
Litigation, 307 F.R.D. 351 (E.D. Pa. 2015). The revised deal
eliminated a prior cap on the total amount of compensation
available to former players. The fund established by the
settlement is an uncapped, inflation-adjusted fund that provides
cash awards for all retired players who receive qualifying
diagnoses. In finding the settlement fair, the court found it met
the mandatory factors set forth in Girsh v. Jepson, 521 F.2d 153
(3d Cir. 1975), and the additional permissive factors identified
in In re Prudential Insurance Co. Sales Practice Litigation, 148
F.3d 283 (3d Cir. 1998). Groups of objectors continue to the
challenge the settlement, and in November presented oral argument
to the Third Circuit.
While ascertainability has become an increasingly contested issue
at the certification stage, it is unusual to see a lack of
ascertainability derail a class action settlement. Nonetheless, a
federal judge denied preliminary approval of Comcast's settlement
of multidistrict antitrust litigation alleging the tying of set-
top box rentals to premium cable services and access to pay-per-
view services because the members of the class were not
ascertainable, in In re Comcast Corp. Set-Top Cable Television Box
Antitrust Litigation, No. 09-md-2034 (E.D. Pa. Nov. 5, 2015). The
combination of the plaintiffs' lack of a reasonable plan to
identify class members and Comcast's lack of reliable subscriber
records from 2004 through 2015 was enough to sink the settlement.
The plaintiffs' appeal to the Third Circuit is pending.
Pennsylvania State Court Certification Decisions
On Dec. 15, 2014, the Pennsylvania Supreme Court's decision in
Braun v. Wal-Mart Stores, 106 A.3d 656 (2014), upheld an almost
$188 million jury verdict for a class of Wal-Mart employees in a
wage-and-hour action. Notable for the size of the verdict and the
scarcity of class action jurisprudence from the Pennsylvania
Supreme Court, Braun also drew national attention for what Justice
Thomas G. Saylor in his dissent called a "relaxed approach to
class-action litigation." By accepting the use of statistical
sampling and extrapolation to circumvent individualized damages
inquiries, Braun seemingly stands in conflict with Comcast v.
Behrend, 133 S. Ct. 1426 (2013). Wal-Mart's petition for
certiorari is pending.
The Luzerne County Court of Common Pleas certified a class of
2,380 former or current McDonald's employees that a franchisee had
paid via fee-laden debit cards in Siciliano v. Albert/Carol
Mueller T-A McDonalds, No. 2013-07010 (Pa. Com. Pl. May 14, 2015).
The plaintiffs alleged that an employer's unilateral use of debit
cards for payment of wages, rather than cash or check, was a per
se violation of Pennsylvania's Wage Payment and Collection Act.
Other than noting some adequacy issues surrounding the initial
class representative, which was subsequently replaced, the court
easily found that the proposed class met the requirements of Rule
1702.
The Philadelphia Court of Common Pleas denied certification in a
data breach action of a 200,000-person class whose health
information was on a flash drive lost by their insurer in Baum v.
Keystone Mercy Health Plan, No. 11013876 (Pa. Com. Pl. Mar. 25,
2015). Since the health information was anonymous and could not
be linked to a specific individual, there could be no resulting
loss of privacy. The plaintiffs also failed to show typicality
because the class members lacked standing as "purchasers" under
Pennsylvania's Unfair Trade Practices and Consumer Protection Law
(UTPCPL). Finally, the proposed class could not meet the adequacy
requirement of Rule 1702(4) because there was no ascertainable
loss or calculable value for the lost anonymous data.
In 2015, the only precedential Pennsylvania appellate court class
certification decision came in Kern v. Lehigh Valley Hospital, 108
A.3d 1281 (Pa. Super. Ct. 2015). The Superior Court affirmed
denial of certification of a class of uninsured emergency room
patients who brought claims under the UTPCPL. The proposed class
failed to meet two of the five prerequisites to sustain a class
action under Rule 1702. Because justifiable reliance is an
element of private actions under Section 201-9.2 of the UTPCPL,
the plaintiff failed to show that there were questions of law or
fact common to the class under Rule 1702(2). Additionally, since
reliance required individual inquiries, a class action was not a
fair and efficient method for adjudication of the controversy
under Rule 1702(5).
There were also two non-precedential class certification decisions
from the Superior Court, both of which affirmed the trial courts'
denial of class certification. In Vensko v. Encompass Home & Auto
Insurance, No. 1316 WDA 2014 (Pa. Super. Ct. Sept. 11, 2015), the
court said the class failed to show typicality under Rule 1702(3),
and in Stoner v. Quinlan, No. 3064 EDA 2014 (Pa. Super. Ct. Sept.
29, 2015), the court said the class failed to show three of five
requirements for certification.
* Senate Passes Consumer Review Freedom Act to Forbid Gag Clauses
-----------------------------------------------------------------
Richard Raysman and Peter Brown, writing for New York Law Journal,
report that viewing, evaluating, or even writing consumer reviews,
has become a ubiquitous element of the present day Internet
experience for most users, particularly in urban areas such as
New York City, in which a surfeit of dining, nightlife and
cultural options often render the city dweller powerless to make
an informed choice without the recommendations of similarly
situated consumers. The reviews of fellow travelers have been
recognized by the media, and even Congress, as a materially
beneficial aspect for most Web users. Authentic customer reviews
manifest indicia of reliability and candor that are believed not
to be present in reviews that are motivated by financial interest,
though many review sites do contain numerous reviews from
advertisers masquerading as objective consumers.
The most prominent of such sites, Yelp.com, which allows users to
read as well as create reviews of myriad businesses they patronize
or even happen to walk by on a given day, averages 142 million
unique visitors per month, and its users post upwards of 90
million reviews per year. Types of reviewable business have
expanded since Yelp's founding in 2004 to include local prisons,
traffic lights and Yelp itself (as of this writing, the site
maintains a rating of 2.5 stars based on 7,793 reviews).
Other, more niche consumer review sites have arrived in droves,
from the subscription service Angie's List, to Trip Advisor
(travel reviews), to G2 Crowd and TrustRadius (enterprise
software) to Ripoff Report, which offers its users the opportunity
to "Don't let [businesses] get away with it! Let the truth be
known!" Each of these phrases are labeled as registered
trademarks, and Ripoff Report claims to have saved consumers in
excess of $15.4 billion since 1998.
Unsurprisingly, the proliferation of such sites has created legal
issues that are novel in some ways, but also redolent of decades-
old disputes over free speech, false advertising, defamation and
contract law. Rightly or wrongly, allegations that the reviews on
its platform are fraudulent, or that it unlawfully favors
businesses that participate in advertising programs, has plagued
Yelp since its inception. In the same vein, Ripoff Report is
regularly sued by businesses who claim reviews on its sites are
defamatory. Finally, as discussed further below, Yelp has also
been sued by its own shareholders on the theory that fake reviews
could constitute securities fraud.
Elsewhere, some businesses invariably subjected to Yelp reviews
have adopted a novel and controversial tactic. These businesses
have inserted provisions into the agreements with their customers
restricting a consumer's right to review their business. Also
known as "gag clauses," such non-negotiable provisions
functionally prevent a consumer from reviewing the business, even
if the statements in a review would be truthful. Violation of a
"gag clause" can precipitate fines and other penalties. As an
extreme example of this trend, a Utah couple was once charged
$3,500 by an online retailer after they had run afoul of the "gag
clause" in the relevant agreement by posting some unkind words
about the retailer on the review site. Eventually, after the
couple's refusal to pay these fines and years of litigation
ensued, a federal judge in Utah awarded them in excess of $300,000
in compensatory and punitive damages, as well as attorney fees.
In response to this trend, Congress has begun to act, as the
Senate passed a bill in December 2015 via unanimous consent that
is designed to forbid "gag clauses" in contracts between consumers
and sellers. This column will look deeper into this legislation
by analyzing the rationale behind it, its specific terms, and the
reaction to its passage thus far. In the next section, the column
will also summarize the recent shareholder litigation involving
Yelp, in which a class of plaintiffs alleged that the company had
proffered materially false statements to investors regarding the
veracity of the reviews posted on its site, and its practices with
respect to companies that advertised with Yelp versus those that
did not, and had therefore engaged in actionable federal
securities fraud.
The Consumer Review Freedom Act. On Dec. 14, 2015, the Consumer
Review Freedom Act (CRFA) passed the Senate with unanimous
consent. Originally introduced by Sen. John Thune (R-S.D.), the
CRFA declares void any contract provision that prohibits or
penalizes consumers from reviewing a company's products or
services.
The impetus for the CRFA is in part an acknowledgment that
consumers have begun to increasingly rely on platforms that
include reviews authored by other consumers, as such reviews
possess the imprimatur of trustworthiness and reliability that a
review purchased or written by the business in question would not.
Therefore, according to documentation published in conjunction
with the passage of the CRFA, any attempt to restrict the
intrinsic candor of such reviews creates wide-ranging
consequences. Such restrictions are manifested most frequently in
the form of "gag clauses," which often carry monetary penalties
for violations. Notably, numerous iterations of such clauses have
been drafted to bar not only defamatory comments about a business,
but even honest ones as well. Such "gag clauses" have been
utilized by landlords, wedding contractors and sellers of weight-
loss products, just to name a few.
According to the Senate Commerce Committee Report that accompanied
the bill, these "gag clauses," also known more formally as non-
disparagement provisions, "stifle the speech of consumers, and
thus interstate commerce, by not permitting fair criticism of a
business even when that feedback is an honest reflection of
consumers' experiences." Though the same Report agreed that
businesses' retained a valid interest in preventing a consumer
from penning a defamatory review, it ultimately concluded that
these clauses were a disproportionate response to such an
interest.
Ultimately, the same Report concluded that the CRFA "would not
have an adverse economic impact on the Nation," and would instead
"promote consumer protection by making certain non-disparagement
clauses unlawful, thus allowing consumers to make better informed
decisions when procuring goods and services."
Reaction to the passage of the CRFA has been largely positive. On
the more excited end of the spectrum, one law professor who
practices and writes frequently in the area of technology and
marketing law exclaimed "Amen!" upon its approval. Another
newspaper noted that the CRFA gives consumers an "early Christmas
present." Finally, in a fitting testament to the ubiquity of
consumer reviews, earlier versions of the CRFA have been discussed
in forums on Yelp.
The CRFA could be a considerable benefit to lawyers around the
country as well. The final version deleted earlier language that
would have proscribed state attorneys general from hiring outside
counsel on a contingency basis to assist in enforcing the non-
disparagement clause ban.
Shareholder Litigation Arising From Public Statements About False
Consumer Reviews. Although Yelp is considered by New York Attorney
General Eric Schneiderman to utilize an algorithm that is the
"most aggressive" at filtering out fake reviews, according to a
2014 study, fake reviews now amount to 20 percent of the site's
content. Undoubtedly these reviews upset businesses and
consumers, but even shareholders have begun to go to court to
redress perceived problems stemming from what some believe is an
epidemic of artificial reviews.
In Curry v. Yelp, No. 14-cv-03547-JST, 2015 WL 7454137 (N.D. Cal.
Nov. 24, 2015), class action plaintiffs filed a first amended
complaint against Yelp and a number of its officers alleging,
inter alia, securities fraud in violation of the Securities
Exchange Act. The claims were largely premised on the idea that
Yelp, in financial documents disseminated as part of periodic
updates to its stockholders, "falsely stated that the reviews on
[Yelp's] website were authentic and that the contributors to the
website provided high-quality, firsthand information about local
businesses." The plaintiffs' also averred that Yelp falsely
denied manipulating "reviews in favor of advertising businesses
and against non-advertising businesses."
In order for the plaintiffs to succeed on these claims, they were
required to prove that Yelp's statements or omissions were both
(1) false or misleading and (2) material. See Berson v. Applied
Signal Tech., 527 F.3d 982 (9th Cir. 2008). The court concluded
that the plaintiffs' failed to prove either element. It credited
Yelp's contention that it had acknowledged both explicitly and
implicitly that some reviews on its site were inauthentic, and
therefore, "no reasonable investor could have understood
Defendants' statement to mean that all Yelp reviews were
authentic." See also In re Lululemon Securities Litigation, 14 F.
Supp. 3d 553 (S.D.N.Y. 2014) (holding that an apparel company that
disclosed on its website that its products may be defective did
not render assertion elsewhere that such products were of "high
quality" actionably false under federal securities laws). In
addition, the court concluded that investors could not be
materially misled by such statements concerning the authenticity
and "firsthand nature" of each and every review on Yelp's website,
given the "common-sense understanding of what it means for a
website to host user-generated content."
The court similarly rejected the plaintiffs' claims that denials
by Yelp officers and employees of manipulation of reviews in favor
of advertisers and against non-advertisers constituted materially
false statements. The evidence presented by plaintiffs, which
amounted to examples of FTC complaints complaining of manipulation
of Yelp reviews, were insufficient and lacking corroboration to
prove that the company had engaged in "large-scale manipulation of
customer reviews." See also In re Netflix Securities Litigation,
2005 WL 1562858 (N.D. Cal. June 28, 2005) (noting that a small
number of customer complaints on their own do not establish that a
company's contrary statements are false, since every large company
is expected to have some customer complaints). Likewise, the
court dismissed the evidence backing plaintiffs' claims regarding
the purportedly false statements made by Yelp regarding
manipulation of reviews as lacking causality and contradicted by
Yelp's explicit acknowledgement of its fake review problem.
For this, and other reasons, the court dismissed plaintiffs'
claims without leave to amend.
Conclusion
Enacting the CRFA is no certainty, although it seems like the
number of bills passing through the Senate that have received
unanimous support during 2015 could be counted on one hand.
Bipartisan support for the CRFA appears to remain intact.
Ultimately, the prospects for passage hinge on an identically
named companion bill in the House of Representatives, H.R. 2110,
which remains characterized on Congress.gov in early January 2016
as "Referred to the Subcommittee on Commerce, Manufacturing and
Trade."
The relative calm over the CRFA may not be a harbinger of things
to come with respect to legal issues confronting customer review
sites. A heretofore much more contentious debate has arisen over
the conflict between allegedly defamatory reviews of businesses,
and the free speech rights of the consumers to post harsh reviews
that often straddle the line between highly critical and
actionably defamatory. That will almost certainly be the main
event in the ongoing legal debate involving consumer review sites.
* Supreme Court Should Police Class Action Settlements
------------------------------------------------------
Ilya Shapiro, writing for Cato Institute, reports that in 2009,
Duracell, a subsidiary of Proctor & Gamble, began selling
"Duracell Ultra" batteries, marketing them as their longest-
lasting variety. A class action was filed in 2012, arguing that
the "longest-lasting" claim was fraudulent. The case was removed
to federal court, where the parties reached a global settlement
purporting to represent 7.26 million class members.
Attorneys for the class are to receive an award of $5.68 million,
based on what the district court deemed to be an "illusory"
valuation of the settlement at $50 million. In reality, the class
received $344,850. Additionally, defendants agreed to make a
donation of $6 million worth of batteries over the course of five
years to various charities.
This redistribution of settlement money from the victims to other
uses is referred to as cy pres. "Cy pres" means "as near as
possible," and courts have typically used the cy pres doctrine to
reform the terms of a charitable trust when the stated objective
of the trust is impractical or unworkable. The use of cy pres in
class action settlements-particularly those that enable the
defendant to control the funds-is an emerging trend that violates
the due process and free speech rights of class members.
Accordingly, class members objected to the settlement, arguing
that the district court abused its discretion in approving the
agreement and failed to engage in the required rigorous analysis
to determine whether the settlement was "fair, reasonable, and
adequate." The U.S. Court of Appeals for the Eleventh Circuit
affirmed the settlement, however, noting the lack of "precedent
prohibiting this type of cy pres award."
Now an objecting class member has asked the Supreme Court to
review the case, and Cato filed an amicus brief arguing that the
use of cy pres awards in this manner violates the Fifth
Amendment's Due Process Clause and the First Amendment's Free
Speech Clause.
Specifically, due process requires, at a minimum, an opportunity
for an absent plaintiff to remove himself, or "opt out," from the
class. Class members have little incentive or opportunity to learn
of the existence of a class action in which they may have a legal
interest, while class counsel is able to make settlement
agreements that are unencumbered by an informed and participating
class.
In addition, when a court approves a cy pres award as part of a
class action settlement, it forces class members to endorse
certain ideas, which constitutes a speech compulsion. When
defendants receive money-essentially from themselves-to donate to
a charity, the victim class members surrender the value of their
legal claims. Class members are left uncompensated, while
defendants are shielded from any future claims of liability and
even look better than they did before the lawsuit given their
display of "corporate social responsibility."
*********
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 2016. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
publication in any form (including e-mail forwarding, electronic
re-mailing and photocopying) is strictly prohibited without prior
written permission of the publishers.
Information contained herein is obtained from sources believed to
be reliable, but is not guaranteed.
The CAR subscription rate is $775 for six months delivered via
e-mail. Additional e-mail subscriptions for members of the same
firm for the term of the initial subscription or balance thereof
are $25 each. For subscription information, contact
Peter A. Chapman at 215-945-7000 or Nina Novak at 202-362-8552.
* * * End of Transmission * * *