/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/160128.mbx C L A S S A C T I O N R E P O R T E R Thursday, January 28, 2016, Vol. 18, No. 19 Headlines AAA SOUTHERN: Court Grants in Part Bid to Dismiss "Casperson" ABBVIE INC: "Hillman" Class Suit Remains Pending ABBVIE INC: Still Defending Medical Mutual Class Suit ABBVIE INC: 90% of Depakote(R) Claims Pending in S.D. Ill. ABBVIE INC: Class Suits Over Shire plc Deal Ongoing ABM INDUSTRIES: Must Defend "Brown" Class Suit AIRSTREAM: Recalls Motorhome 2016 Models Due to Injury Risk ALCATRAZ MF: Faces Suit Over Health and Safety Code Violation ALLIANCE SECURITY: Has Invaded Class Members' Privacy, Suit Says ALLIED INTERSTATE: Court Enters $1,500 Judgment in "Franco" Suit ALTEVA INC: Ruling on Motion to Certify Plaintiff Class Pending AMERICAN EXPRESS: Merchants' Bid to Modify Scheduling Order Nixed APOLLO EDUCATION: University of Phoenix Directed to Produce Docs APPLE INC: Bid to Certify Suit Over AppleCare+ Denied APPLE INC: Bids for Summary Judgment in "Backhaut" Case Granted BANK OF AMERICA: Settlement in "Brawner" Suit Okayed BAXALTA: Shareholders Sue Over Merger with Shire BEDESSEE IMPORT: Recalls Cereal Product Due to Insects BECKMAN COULTER: Recalls Cellular Analysis System BENEFICIAL KENTUCKY: Judge Certifies Class of Chapter 7 Debtors BENLAN INC: Recalls Med-RX Feeding Tubes Due to Mislabeling BIOMERIEUX INC: Recalls ETest Antimicrobial Testers BLUE BUFFALO: Eyes $32-Mil. Settlement in Pet Food Class Actions BORDERFREE INC: Recalls Ceramic Chicken Roasters Due to Burn Risk BRANAM HOLDINGS: Has Sent Unsolicited Fax Messages, Suit Claims BULLSEYE ENERGY: Oklahoma Class Suits Consolidated BUMBLE BEE: Dismissal Bid in "McMahon" Case Denied BUMBLE BEE: U.S. Intervenes in Packaged Seafood Antitrust Suit C-TWO GROUP: Court Grants Class Certification in "Mendez" CAFEPRESS INC: Court Entered Final Approval of Settlement CAMBRIDGE CAPITAL: Amended Complaint Filed in Stockholder Case CELLULAR BIOMEDICINE: Hearing on Motion to Dismiss Set for Apr. 6 CHARLESBANK COOPERATIVE: Suit Alleges Violation of AHR CHESAPEAKE APPALACHIA: 3rd Cir. Affirms Ruling on Arbitration CHINA ELECTRIC MOTOR: 9th Cir. Vacates Attorney Fee Award CHIPOTLE MEXICAN: Court to Dismiss "Gallagher" Suit over GMO CHRYSLER: Recalls RAM Promaster 2015 Models Due to Crash Risk COACHING BY CORAL: Runs Ponzi Scam, Class Suit Says COGENT COMMUNICATIONS: Court Grants Conditional Certification COSTCO WHOLESALE: Court Tosses Suit over Slave Labor CREDENCE RESOURCE: Illegally Collects Debt, "Damstra" Suit Claims CUSTOM COOKIES: "Yupangui" Suit Seeks to Recover Unpaid OT Wages CVS HEALTH: Sued Over Acetaminophen & Ibuprofen Product Packaging D.C. METRO: Class Suit Filed over Subway Smoke DAVITA HEALTHCARE: Wage & Hour Suit Resolved for Immaterial Sum DELMART MANAGEMENT: "Lemus" Suit Seeks to Recover Unpaid OT DIAGEO-GUINNESS: Falsely Marketed Extra Stout Products, Suit Says DIVERSICARE HEALTHCARE: Professional Liability Suits Still Open DYNAMIC SPORTS: Court Denies Bid for Two-Part Discovery ECOLAB INC: "Cancilla" Settlement Wins Final Approval EL POLLO: Defending Calif. Class Action Filed by Former Employee EL POLLO: Defending "Turocy" and "Huston" Securities Fraud Cases EOS PRODUCTS: Faces Class Suit in C.D. Cal. over Lip Balm FACEBOOK INC: Approval of Settlement in Fraley et al. Suit Upheld FARMERS GROUP: Court Grants Conditional Certification in "Coates" FIA CARD: "Olmos" Suit Alleges TCPA Violation FIALOVA INC: Faces "Williams" Suit for Labor Code Violations FLOTEK INDUSTRIES: Inflated Share Price, Class Suit Alleges FORD MOTOR: 9th Cir. Revives Claims in "Daniel" Class Suit FRESH EXPRESS: Recalls Baby Spinach Products Due to Tree Nut GALARDI SOUTH: Can't Compel Arbitration in "Espinoza" Case GARDA CL: Faces "Oliver" Suit in Cal. Super. Ct. GENCO SHIPPING: Motion to Dismiss Baltic Shareholder Suit Pending GENERAL NUTRITION: Court Denies Conditionally Bid to Decertify GIANT EAGLE: Recalls New Year's Pretzel Products Due to Walnut GIANT EAGLE: Recalls New Year's Pretzel Products Due to Walnut GIANT EAGLE: Recalls New Year's Pretzel Products Due to Walnut GINN DEVELOPMENT: Approval of Class Action Settlement Affirmed GLOBAL COLLEGE: Court Grants Default Judgment in "Toler" Case GOOD EARTH: Recalls Shell Eggs Due to Salmonella GREENWAY HEALTH: Physicians Healthsource Files Suit Under TCPA GROWLIFE INC: Court Entered Final Order Resolving Class Action HANOVER INSURANCE: "Hockenbury" Case Remains in W.D. Okla. HAYES ROBERTSON: Court Dismisses Lopez as Class Representative HCSB FINANCIAL: Entered Into Class Action Settlement Agreement HERITAGE INTERNATIONAL: Recalls Raw Cashew Due to Salmonella HONDA MOTORS: Car Wiring Attracts Mice, "Dobbs" Suit Says IBIO INC: Settlement in Securities Case Reached After Mediation ICONIX BRAND: Three Securities Class Actions Pending in S.D.N.Y. ING USA ANNUITY: Class Notice in "Abbit" Case Approved INTELLECTUAL CAPITAL: "Acton" Case Stayed, Pending Motions Tossed INTERMARK FOODS: "Duran" Suit Alleges Failure to Pay Overtime JOHNSON & JOHNSON: "Mihalich" Suit Dismissed with Leave to Amend JP MORGAN: "1409 West" Suit Alleges Negligence L.A. SCHOOL DISTRICT: Sued Over Use of $224MM in Bond Money LAS VEGAS SANDS: Must Produce Financial Docs in "Fosbre" Suit LAZ PARKING: Faces "Smith Mendoza" Suit Over Wage Practices LEUCADIA NATIONAL: All NY Cases over Jefferies Deal Dismissed LEUCADIA NATIONAL: Settlement Underway in "Sykes" Case LIBERTY SILVER: Court Approved $1-Mil. Pump-and-Dump Settlement LIFELOCK INC: $68MM Class Action Settlement Approved LONDON METAL EXCHANGE: Court Dismisses Zinc Antitrust Suit LOS ANGELES, CA: Suit Alleges Municipal Code Violations MAJOR LEAGUE BASEBALL: Deal Reached in Suit over Games Black Out MAXPOINT INTERACTIVE: Amended Complaint Filed in Investor Lawsuit MDL 1827: Court Grants Distribution of Residual Settlement Funds MDL 2084: Patent Litigation Settlement Claims in Discovery MDL 2460: AbbVie Continues to Defend Niaspan(R) Purchaser Claims MDL 2545: 1,600 Cases Consolidated for Pre-Trial Purposes MMA CAPITAL: Court Dismissed Investor Class Suit After Settlement MORTGAGE INVESTORS: Court Grants Final Approval of "Ott" Deal MSG HOLDINGS: Class Counsel Named in FlSA Suit; Settlement Tossed MUGSHOTS.COM: Faces Class Suit in Chicago NATIONAL COLLEGIATE: Sues Insurers for Litigation Costs NATIONAL FOOTBALL: 3rd Cir. Tosses Suit over Super Bowl Tickets NATIONAL PENN: Settlement Reached in Pa. Shareholder Litigation NEIL JONES FOOD: Court Denies Preliminary Approval of Settlement NEVADA PROPERTY 1: Wrapping Up $7-Mil. Nev. Wage & Hour Settlement NEVADA PROPERTY 1: Marching Toward $14.5-Mil. Calif. Settlement NEW YORK: 2 Runners File Class Suit Over Marathon NEW YORK: Parents Sue State Education Officials NORTHROP GRUMMAN: Suit Remains in S.D. Cal., Stayed Pending Talks OCWEN LOAN: 2nd Cir. Revives FDCA Claims in "Garfield" Case OOMA INC: Faces "Barnett" Suit Over Share Price Drop PANASONIC CORP: Judge Calls Antitrust Case "A Mess" PANASONIC CORP: Judge Awards $38MM in Fees in CRT Antitrust Suit PANDA EXPRESS: Faces Suit in Los Angeles over Labor Violations PELLA CORP: Wins Summary Judgment in "Dilly" Suit PEP BOYS-MANNY MOE: Court Denies Class Certification in "Lee" PLUMROSE USA: "Heuberger" Suit Seeks to Recover Unpaid OT Wages PNC FINANCIAL: N.Y. Court Sends "Gokhberg" to Pennsylvania PROMENADE TOWERS: "Taban" Suit Alleges Civil Code Violation RAMDASDARKE DARKE: Sued Over Defects in Properties for Rent REDFIN CORP: N.D. Cal. Judge Sends "Galen" Case to Arbitration ROOT9B TECHNOLOGIES: Levi & Korsinsky Appointed as Lead Counsel RUST-OLEUM: Ill. Judge Narrows Claims in Product Liability Suit SAN DIEGO, CA: Feb. 11 Hearing in Police Officer's Suit SAN FRANCISCO 49ERS: "Kazemzadeh" Class Action Dismissed SAN JUAN CAPISTRANO, CA: Overcharged Water Rate, Suit Claims SAXON MORTGAGE: Final Accounting Hearing Continued to August 10 SETAUKET CAR WASH: Court Grants Class Certification in FLSA Suit SNAP-ON TOOLS: Court Denies Motion to Reconsider in "Jacobson" SOUTHERN CALIFORNIA GAS: Sued Over Natural Gas Storage Wells SOUTHERN COPPER: Faces Shareholders' Suit in Del. Chancery Ct. ST. JOSEPH COUNTY: "Donovan" Settlement Approved on Final Basis ST. LOUIS RAMS: Fans Sue Over Transfer to Los Angeles ST. LOUIS RAMS: Breached Personal Seat License Deals, Suit Says SUNRUN INC: Involved in Consumer Rights & Labor Class Action Cases STRATEGIC REALTY TRUST: Court Granted Final Approval of Settlement SUPERVALU INC: Min. Judge Dismissed Data Breach Suit SWIFT TRANSPORTATION: Plaintiffs Must Go to Ariz. for Deposition TALLGRASS TALENT: Court Grants Motion to Remand TARGA RESOURCES: Investors Sue to Block Sale to General Partner TED CRUZ: Not Eligible to Run for President, Suit Claims TERRAFORM GLOBAL: Class Actions Filed in California Related to IPO TEXAS A&M UNIVERSITY: Law Graduates' Suit Dismissed TORMUS INC: Court Denies Dismissal of "Palma" Complaint TROY CONSTRUCTION: Conditional Cert. Bid in "Stone" Case Granted TWITTER INC: Plaintiff Drops "Raney" Eavesdropping Suit UBER TECHNOLOGIES: Arbitration Bid for Absent Class Members Nixed UNITED AIRLINES: 9th Cir. Upholds Dismissal of Suit over Kiosks UNITED AIRLINES: Faces Class Suit over Defunct Discount Program UNITED STATES: Detainees' Suit Certified as Class Suit USA TECHNOLOGIES: "Messner" Class Action Filed in Oct. in E.D. Pa. VAALCO ENERGY: Vladimir Gusinsky Files Shareholder Suit in Del. VALLEYCREST LANDSCAPE: Faces Suit Over FLSA Violation VECTREN UTILITY: Defending Class Suit by SIGECO Employees VOLKSWAGEN GROUP: Bernstein Litowitz Named Lead Atty in MDL 2672 VOLTARI CORPORATION: Oral Argument Before 9th Cir. Set for Apr. 8 W.A. THOMPSON: "Murillo" Suit Seeks Minimum, Overtime Wages WASH.IO INC: "Bennett" Suit Seeks Damages for Labor Code Breach WCA WASTE: Bid to Remand or Dismiss Royal American Suit Denied YAHOO! INC: Class Cert. Bid in "Johnson" Case Granted in Part ZAFGEN INC: Lead Plaintiffs & Counsel Appointed in "Bessler" * CFIA Recalls Almond Spread Products Due to Salmonella ********* AAA SOUTHERN: Court Grants in Part Bid to Dismiss "Casperson" ------------------------------------------------------------- Judge Michael A. Silverstein of the Superior Court of Rhode Island granted in part a motion to dismiss the case captioned, WILLIAM CASPERSON, individually and on behalf of a class of persons similarly-situated, Plaintiff, v. AAA SOUTHERN NEW ENGLAND, JOHN DOE COMPANIES, 1 through 10, inclusive, and JOHN DOES, 1 through 10 inclusive, Defendants, Case No. PC2014-6139 (R.I. Super.). On October 19, 2009, AAA hired Casperson as a part-time tow truck driver. At the time of his hire, Casperson earned $11.50 per hour and worked 24 hours per week, including Sundays and holidays. In June of 2011, Casperson became a permanent, full-time flatbed driver for AAA. At that time, he earned $12.50 per hour and worked thirty-nine hours per week, including Sundays and holidays. During Casperson's tenure with AAA, he was required to work at least eight hours every Sunday, as well as some holidays. Casperson was terminated from his position with AAA on March 13, 2014. On December 15, 2014, Casperson filed this action against AAA alleging that it violated (i) Title 28, Chapter 14 of the General Laws of Rhode Island, 1956, entitled the Rhode Island Payment of Wages Act; and (ii) Title 25, Chapter 3 of the General Laws of Rhode Island, 1956, entitled Rhode Island Work on Holidays and Sundays Act. In the motion, AAA moved to dismiss the action under Super. R. Civ. P. 12(b)(6) (Rule 12(b)(6)) arguing that (i) Casperson has not asserted a claim upon which relief can be granted as he is not considered an "employee," but instead, is exempt under the Sunday Pay Act; and (ii) his unjust enrichment claim is preempted by the Sunday Pay Act. In the Decision dated December 22, 2015 available at http://is.gd/h4ysjlfrom Leagle.com, Judge Silverstein granted motion to dismiss Counts I and III concluding that Casperson's unjust enrichment claim fails and that he has not asserted a claim for which relief can be granted under the Wage Act and denied motion to dismiss Count II finding that Casperson has stated a claim for relief under the Sunday Pay Act. William Casperson is represented by: V. Edward Formisano, Esq. FORMISANO AND COMPANY 100 Midway Place, Suite 1 Cranston, RI 02920 Tel: (401) 203-4605 AAA Southern New England is represented by Robert G. Flanders, Jr., Esq. -- rflanders@hinckleyallen.com -- HINCKLEY ALLEN ABBVIE INC: "Hillman" Class Suit Remains Pending ------------------------------------------------ AbbVie Inc. continues to defend claims by Sidney Hillman after an appellate court reinstated those claims on appeal, the Company 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. In August 2013, a putative class action lawsuit, Sidney Hillman Health Center of Rochester, et al. v. AbbVie Inc., et al., was filed against AbbVie in the United States District Court for the Northern District of Illinois by three healthcare benefit providers alleging violations of Federal Racketeer Influenced and Corrupt Organizations (RICO) statutes and state deceptive business practice and unjust enrichment laws in connection with reimbursements for certain uses of Depakote(R) from 1998 to 2012. Plaintiffs seek monetary damages and/or equitable relief and attorneys' fees. In April 2015, the United States Court of Appeals for the Seventh Circuit reversed the district court's decision to dismiss all of the plaintiffs' claims with prejudice on statute of limitations grounds. The case has been returned to the district court for further proceedings. ABBVIE INC: Still Defending Medical Mutual Class Suit ----------------------------------------------------- Medical Mutual of Ohio v. AbbVie Inc., et al., remains pending, according to AbbVie 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. In November 2014, a putative class action lawsuit, Medical Mutual of Ohio v. AbbVie Inc., et al., was filed against several manufacturers of testosterone replacement therapies (TRTs), including AbbVie, in the United States District Court for the Northern District of Illinois on behalf of all insurance companies, health benefit providers, and other third party payors who paid for TRTs, including AndroGel(R). The claims asserted include violations of the federal RICO Act and state consumer fraud and deceptive trade practices laws. The complaint seeks monetary damages and injunctive relief. No further updates were provided in the Company's Form 10-Q report. ABBVIE INC: 90% of Depakote(R) Claims Pending in S.D. Ill. ---------------------------------------------------------- AbbVie 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 product liability cases are pending in which plaintiffs generally allege that AbbVie did not adequately warn about risk of certain injuries, primarily various birth defects, arising from use of Depakote(R). Over ninety percent of the approximately 700 claims are pending in the United States District Court for the Southern District of Illinois, and the rest are pending in various other federal and state courts. Plaintiffs seek compensatory and punitive damages. ABBVIE INC: Class Suits Over Shire plc Deal Ongoing --------------------------------------------------- AbbVie Inc. continues to defend class suits related to a proposed transaction with Shire plc, AbbVie 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. In November 2014, five individuals filed a putative class action lawsuit on behalf of purchasers and sellers of certain Shire plc (Shire) securities between June 20 and October 14, 2014, against AbbVie and its chief executive officer in the United States District Court for the Northern District of Illinois alleging that the defendants made and/or are responsible for material misstatements in violation of federal securities laws in connection with AbbVie's proposed transaction with Shire. The complaint seeks monetary damages and injunctive relief. ABM INDUSTRIES: Must Defend "Brown" Class Suit ---------------------------------------------- District Judge Amy J. St. Eve denied Defendants' motion to dismiss and granted in part and denied in part Defendants' motion to strike in the captioned case VERONICA BROWN, individually and on behalf of all others similarly situated, Plaintiffs, v. ABM INDUSTRIES, INC., et al., Defendants, Case No.: 15 C 6729, (N.D. Ill.) Plaintiff Veronica Brown, individually and on behalf of all others similarly situated, filed the present Second Amended Collective and Class Action Complaint alleging violations of the Fair Labor Standards Act, 29 U.S.C. Section 201 et seq. (FLSA), and the Illinois Minimum Wage Law, 820 ILCS 105/1, et seq. (IMWL) based on Defendants' alleged failure to pay overtime compensation for all hours worked in excess of 40 hours in a week. Defendants filed their motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1), as well as Defendants' Rule 12(f) motion to strike. In her Memorandum Opinion and Order dated December 1, 2015 available at http://is.gd/R38cAMfrom Leagle.com, Judge St. Eve denied Defendants' motion to dismiss and granted in part and denied in part Defendants' motion to strike. The Court granted Plaintiff leave to file a Third Amended Complaint. Defendants' argument that Plaintiff has failed to properly allege an employer-employee relationship with any of the named Defendants dovetails into their motion to strike because their employer- employee argument is based on several inconsistencies in the Second Amended Complaint, the Court said. Plaintiff, for example, alleges that she worked for Defendants from 2009 until March 2013, but also alleges that she worked for Defendants from 2007 until May 2013. Also, whether Plaintiff included allegations about another regional subsidiary to give context to her claims or whether Plaintiff mistakenly added this regional subsidiary as her employer is a matter of inartful pleading, not standing. The Court thus grants Plaintiff leave to file a Third Amended Complaint to "clean up" these inconsistencies, as well as the extraneous allegations regarding other lawsuits. According to Plaintiff, ABM Industries, directly or indirectly with the other named Defendants, established a policy that forbids payment of overtime to janitors unless it is pre-approved. Under these facts, Plaintiff has sufficiently alleged that Defendants collectively constitute a joint employer for purposes of the FLSA. Glen Joseph Dunn, Jr, Esq. -- gdunn@gjdlaw.com -- Angel Petrov Bakov, Esq. and Haig A. Himidian, Esq. -- hhimidian@gjdlaw.com -- of Glen J. Dunn & Associates Thomas Michael Ryan, Esq. of Law Offices of Thomas Ryan Catherine P. Sons, Esq. and James X. Bormes, Esq. of Law Office of James X. Bormes serve as counsel for Plaintiff Veronica Brown James J. Oh, Esq. -- joh@littler.com -- Christina A. Andronache, Esq. -- candronache@littler.com -- Darren Mason Mungerson, Esq. -- dmungerson@littler.com and Lavanga Vusitha Wijekoon, Esq. -- lwijekoon@littler.com -- of Littler Mendelson, P.C. serve as counsel for Defendant ABM Industries, Inc. AIRSTREAM: Recalls Motorhome 2016 Models Due to Injury Risk ----------------------------------------------------------- Starting date: November 24, 2015 Type of communication: Recall Subcategory: Motorhome Notification type: Safety Mfr System: Electrical Units affected: 7 Source of recall: Transport Canada Identification number: 2015560TC ID number: 2015560 On certain motorhomes, a high-amperage interior wiring harness may have loose electrical connections and/or the ground wire could be located incorrectly. This could result in the wiring overheating if under a high amperage load condition, which could increase the risk of a fire and increase the risk of injury and/or damage to property. Correction: Dealers will tighten all connections and relocate the wire harness ground wire to prevent feed of current in the event of the failure of the main ground wire. Make Model Model year(s) affected ---- ----- ---------------------- AIRSTREAM 2016, 2016 ALCATRAZ MF: Faces Suit Over Health and Safety Code Violation ------------------------------------------------------------- Tonesha Jackson and Sir Holman, a minor, by and through his Guardian ad Litem Jenny King, v. Alcatraz MF Partners, LLC, Landmark Management & Real Estate Services, LLC, Harbell Guiton, Nichele Guiton, Teola Sanders and DOES 1-30, Case No: RG15795624 (Cal. Super., for the County of Alameda Unlimited Jurisdiction, December 7, 2015), alleges that Defendants violated health & safety codes because Defendants allowed the subject property to contain hazardous fluids and materials, lack adequate weather proofing, and to be substandard in every way identified herein and as defined by the applicable statutes. The Defendants were the owners and/or property managers or the agents and/or employees of the owners and/or property managers of the Plaintiffs' Premises. The Plaintiffs are represented by: Andrew Wolff, Esq. Chris Beatty, Esq. LAW OFFICES OF ANDREW WOLFF, PC 1970 Broadway, Suite 210 Oakland, CA 94612 Phone: (510) 834-3300 Fax: (510) 834-3377 E-mail: andrew@awolfflaw.com chris@awolfflaw.com ALLIANCE SECURITY: Has Invaded Class Members' Privacy, Suit Says ---------------------------------------------------------------- Anthony Chester, an individual, on behalf of himself and all others similarly situated v. Alliance Security Inc., Case No. 0:15-cv-04231-PAM-BRT (D. Minn., November 25, 2015) is brought against the Defendant for negligently and intentionally contacting the Plaintiff on the cellular telephone, in violation of the Telephone Consumer Protection Act, thereby invading the Plaintiff's privacy. Alliance Security Inc. operates an alarm company providing security services to both residential and commercial customers. The Plaintiff is represented by: Peter F. Barry, Esq. BARRY & HELWIG, LLC 2701 University Ave SE, Suite 209 Minneapolis, MN 55414-3236 Telephone: (612) 379-8800 Facsimile: (612) 379-8810 E-mail: pbarry@lawpoint.com ALLIED INTERSTATE: Court Enters $1,500 Judgment in "Franco" Suit ---------------------------------------------------------------- District Judge Katherine B. Forrest granted the motion to enter judgment in the captioned case GILBERTO FRANCO, on behalf of himself and all others similarly situated, Plaintiff, v. ALLIED INTERSTATE LLC, Defendant, Case No.: 13-CV-4053 (KBF), (S.D.N.Y.) Plaintiff brings this action against defendant, a national debt collection agency, alleging that defendant's collection practices violate the Fair Debt Collection Practices Act, (FDCPA). Plaintiff alleges that defendant violated FDCPA when it used false, deceptive, and misleading practices in its attempts to collect alleged debts from plaintiffs and other consumers in Massachusetts. Specifically, plaintiff alleges that defendant's written communications warned debtors that they may be subject to wage garnishment of 15% of their pay. Plaintiff claims that defendant disseminated this communication in violation of Sections 1692e and 1692f of the FDCPA because the law only allows wage garnishment up to 15% of disposable income. In her Opinion and Order dated November 30, 2015 available at http://is.gd/mL9ApVfrom Leagle.com, Judge Forrest directed the Clerk of Court to enter judgment in favor of Franco in the amount of $1,501.00, plus any post-judgment interest, against Allied. Parties shall confer as to reasonable attorney's fees and costs, and submit a motion to this Court. Andrew T. Thomasson, Esq. Thomasson Law, LLC William Franklin Horn, Edsq. of Law Office of William F. Horn and Craig Thor Kimmel, Esq. of Kimmel & Silverman serve as counsel for Plaintiff Casey Devin Laffey, Esq. -- claffey@reedsmith.com and Nana Japaridze, Esq. -- njaparidze@reedsmith.com of Reed Smith LLP serve as counsel for Defendant Allied Interstate LLC serve as counsel for Defendant Allied Interstate LLC ALTEVA INC: Ruling on Motion to Certify Plaintiff Class Pending --------------------------------------------------------------- Alteva, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2015, for the quarterly period ended September 30, 2015, that Missy Hogan and Jennifer Geiger, as Trustees for the Janice Lynn Livingston Special Needs Trust U/A 2/17/11 (the "Plaintiff"), filed on October 8, 2015, a suit in New York state court against Alteva, Alteva's Board of Directors (Kelly C. Bloss, Brian J. Kelley, Jeffrey D. Alario, Douglas B. Benedict, and Edward J. Morea, together with Alteva, Inc. "Alteva Defendants"), MBS Holdings, Inc. and Arrow Merger Subsidiary, Inc. Plaintiff has requested that the court certify the suit as a class action, but the court has not ruled on the request. In the lawsuit, Plaintiff alleges that Alteva Defendants have breached their fiduciary duties to the public shareholders of Alteva by, among other things, failing to take reasonable steps to obtain and/or ensure that the public shareholders receive adequate and fair value for their shares in the proposed transaction. Plaintiff also alleges that MBS Holdings, Inc. and Arrow Merger Subsidiary, Inc. aided and abetted Alteva Defendants in breaching their fiduciary duties to the public shareholders of Alteva. In addition, in a filing dated October 13, 2015, Plaintiff requested that the court issue an order restraining the November 16, 2015 vote. On October 19, 2015, the court denied Plaintiff's request for injunctive relief, but ordered expedited discovery and a hearing on November 12, 2015 concerning whether a preliminary injunction should be issued enjoining the November 16, 2015 vote. At the November 12, 2015 hearing, the court denied Plaintiff's request for a preliminary injunction. The underlying case remains pending in New York state court. AMERICAN EXPRESS: Merchants' Bid to Modify Scheduling Order Nixed ----------------------------------------------------------------- In a set of consolidated antitrust actions, Merchant Plaintiffs challenge under Sections 1 and 2 of the Sherman Antitrust Act the contracts that they have entered into with Defendants American Express Travel Related Services Company, Inc. and American Express Company. Specifically, the MPs challenge Defendants' anti- steering rules, referred to as the Non-Discrimination Provisions (NDPs), which are contained in merchant agreements entered into between Amex and each MP. The MPs seek an order enjoining Amex from enforcing the NDPs, as well as treble damages for the injuries the MPs allege they have sustained on account of the NDPs. Pending before the United States District Court for the Eastern District of New York are the parties' cross-motions for summary judgment, as well as the MPs' motions for leave to modify the Scheduling Order and amend the operative pleadings, and motion for the application of collateral estoppel. In his Memorandum and Order dated January 7, 2016 available at http://is.gd/EStuTMfrom Leagle.com, District Judge Nicholas G. Garaufis ruled that: -- the MPs' motion to modify the Scheduling Order and for leave to amend is denied without prejudice, -- the MPs' motion for the application of collateral estoppel is denied without prejudice, and -- the MPs' motion for partial summary judgment is denied without prejudice. The court denies Amex's motion for summary judgment with respect to the no-surcharge rule and Amex's statute of limitations and laches defenses. The court reserves judgment on Amex's motion for summary judgment with respect to the existence of an Amex-only market. The case is captioned, IN RE: AMERICAN EXPRESS ANTI-STEERING RULES ANTITRUST LITIGATION This Document Relates to: All Individual Merchant Plaintiff Actions 08-CV-2315 (NGG)(RER) 08-CV-2316 (NGG)(RER) 08-CV-2317 (NGG)(RER) 08-CV-2380 (NGG)(RER) 08-CV-2406 (NGG)(RER) 11-CV-0337 (NGG) (RER) 11-CV-0338 (NGG) (RER), Case No. 11-MD-2221-(NGG)(RER) (E.D.N.Y.). Plaintiffs include Rite Aid Corporation, Walgreen Co, Firefly Air Solutions, LLC, Plymouth Oil Corparation, Jasa, Inc., Animal Land, Inc., Rookies, Inc., Lopez-Dejonge, Inc., Italian Colors Restaurant, Cohen Rese Gallery, Inc., Bar Hama LLC, Meijer, Inc., Publix Super Markert, Inc., Raley's, Supervalu Inc., CVS Pharmacy, Inc., Bi-Lo, LLC, H.E. Butt Grocery Company, The Kroger Co., Safeway Inc., Ahold U.S.A. Inc., Albertson's LLC, Hy-Vee, Inc., The Great Atlantic & Pacific Tea Company Inc., Treehouse, Inc., IL Forno, Inc., National Supermarkets Association, Inc., and The Marcus Corporation. Plaintiffs are represented by David P. Germaine, Esq. -- dgermaine@vaneklaw.com -- VANEK VICKERS & MASINI, P.C., Eric Bloom, Esq. -- ebloom@hangley.com -- Maureen Smith Lawrence, Esq. -- msl@hangley.com -- HANGLEY ARONCHICK SEGAL & PUDLIN, James Almon, Esq. & Richard A. Arnold, Esq. -- rarnold@kennynachwalter.com -- KENNY NACHWALTER, P.A. Defendants are represented by Peter T. Barbur, Esq. -- pbarbur@cravath.com -- Athena N. Cheng, Esq. -- tchen@cravath.com -- Evan R. Chesler, Esq. -- echesler@cravath.com, Elizabeth L. Grayer, Esq. -- egrayer@cravath.com & Kevin J. Orsini, Esq. -- jorsini@cravath.com -- CRAVATH, SWAINE & MOORE LLP, Daniel Ryan, Esq. -- dryan@hinshawlaw.com -- David John Hanus, Esq. -- dhanus@hinshawlaw.com -- HINSHAW & CULBERTSON, LLP, Donald L. Flexner, Esq. -- dflexner@bsfllp.com -- Eric Brenner, Esq. -- abrenner@bsfllp.com -- John Francis LaSalle, Esq. -- jlasalle@bsfllp.com -- Matthew S. Tripolitsiotis, Esq. -- mtripolitsiotis@bsfllp.com -- Philip M. Bowman, Esq. -- pbowman@bsfllp.com -- Philip C. Korologos, Esq. - pkorologos@bsfllp.com -- Robert M. Cooper, Esq. - rcooper@bsfllp.com -- William T. Thomas, Esq. -- tthomas@bsfllp.com -- Alanna Rutherford, Esq. -- arutherford@bsfllp.com -- Damien Jerome Marshall, Esq. -- dmarshall@bsfllp.com -- BOIES, SCHILLER & FLEXNER, LLP APOLLO EDUCATION: University of Phoenix Directed to Produce Docs ---------------------------------------------------------------- Jamie Ross, writing for Courthouse News Services, reported that a federal judge in Phoenix, Arizona, ordered the University of Phoenix and its parent company Apollo Education Group to comply with civil investigative demands for records in the Federal Trade Commission's investigation of deceptive advertising at the profit- seeking university. Apollo disclosed in an 8-K filing with the SEC that it received the demands from the FTC on July 28 last year. The FTC sought documents and information about the University of Phoenix's "marketing, recruiting, enrollment, financial aid, tuition and fees, academic programs, academic advising, student retention, billing and debt collection, complaints, accreditation, training, military recruitment, and other compliance matters, for the time period of January 1, 2011 to the present." Apollo said at the time that it would comply fully with the FTC. But the FTC filed a petition on Jan. 13, seeking an order requiring Apollo's compliance. It asked Apollo and Phoenix for education records containing information directly related to students. Universities such as the University of Phoenix risk losing federal funding under the Family Educational Rights and Privacy Act (FERPA) if they disclose education records without written permission, but "in some circumstances FERPA does not require such consent," the FTC said. It said its demands qualify as a special circumstance because it constitutes a "subpoena issued for a law enforcement purpose." While Apollo and the University of Phoenix produced some of the requested documents, the FTC said, they balked by claiming that full production "would be impractical and complex given the nature of the responsive material, the number of current and former students, and the difficulty in locating students or their families." The University of Phoenix has about 200,000 students and 900,000 alumni. The FTC says it will protect student information from public disclosure. Apollo and the University of Phoenix did not oppose the petition, which was granted by U.S. District Judge Susan Bolton. A University of Phoenix representative said the school has "cooperated from the outset of the FTC's broad, far-reaching inquiry, and we are committed to providing information for the federal government's review." "We are also committed to complying with federal privacy laws before producing student records. That is precisely why the FTC's petition for a court order was sought without our objection and now provides a way for us to produce students' records while remaining compliant with applicable federal laws protecting those very students." The FTC's demand is not the only trouble Apollo has had with the federal government. In October, the Department of Defense announced that the University of Phoenix would be placed on probation and barred from allowing servicemembers to use federal money to attend. It also was banned from recruiting on military bases. "The institution will not be authorized access to DoD installations for the purposes of participating in any recruitment-type activities," Dawn Bilodeau, chief of the Defense Department's Voluntary Education program, said at the time. "Further, no new or transfer students at the institution will be permitted to receive DoD tuition assistance." In an 8-K SEC filing on Oct. 9, 2015, Apollo announced that students enrolled in the Department of Defense Tuition Assistance Program would not be affected by Phoenix's probationary status, but "newly enrolled or transfer students of the university will not be eligible." More than 1 million former students of the University of Phoenix owe $35.5 billion in student debt: more indebted students than any other college in the United States. The FTC did not respond to a request for comment. The University of Phoenix has paid $175 million in fines, settlements and attorney's fees since 2000 from class action lawsuits and government enforcement actions, according to publicly available information. In 2008 it was the nation's largest receiver of federal aid for education: $2.5 billion. Many of the more than 2000 lawsuits against it claimed that its primary motivation was not educating students, but getting the federal grant money. The case captioned, Federal Trade Commission, Petitioner, v. Apollo Education Group, Inc., and The University of Phoenix, Inc. Respondents. Case No.MC16-00002-PHX-SRB (D. Ariz.) APPLE INC: Bid to Certify Suit Over AppleCare+ Denied ----------------------------------------------------- District Judge William H. Orrick of the United States District Court for the Northern District of California denied Plaintiff's motion to certify a class and two subclasses of purchasers in the case captioned, FABRIENNE ENGLISH, Plaintiff, v. APPLE INC, et al., Defendants, Case No. 14-CV-01619-WHO (N.D. Cal.). Named plaintiff Fabrienne English accuses defendants Apple Inc., AppleCare Service Company Inc., and Apple CSC Inc. of various misrepresentations and omissions in connection with AppleCare+ ("AC+") and AppleCare Protection Plan ("APP"), extended service plans Apple offers to purchasers of iPhones. English's claims vary slightly, but her core complaint is that Apple misrepresents to consumers that replacement iPhones under AC+ and APP will be new, when in fact many of the replacement devices in Apple's service stock are "refurbished" or otherwise not new. English is the only named plaintiff remaining in the case. With the filing of the second amended complaint on January 17, 2015, Adkins and Galindo dropped out, while a new named plaintiff, Karen Lowthert, joined in. English and Lowthert filed the TAC on March 6, 2015, alleging four causes of action against Apple based on alleged misrepresentations and omissions in connection with AC+ and APP: (1) violations of the CLRA; (2) violations of the FAL; (3) violations of the unlawful, unfair, and fraudulent prongs of the UCL; (4) violations of the Secondhand Merchandise Labeling Law; and (5) fraud. Shortly after the TAC was filed, on March 19, 2015, Lowthert dropped out of the case, leaving English as the only named plaintiff. In the motion, Plaintiff moved to certify a class and two subclasses of purchasers of AC+ and APP asserting claims under California law for violations of the Consumer Legal Remedies Act , the False Advertising Law, the Unfair Competition Law and the Secondhand Merchandize Labeling Law. In his Order dated January 5, 2016 available at http://is.gd/zkoV1afrom Leagle.com, Judge Orrick found that none of her theories of liability support class certification, and she has not established adequacy of counsel under Federal Rule of Civil Procedure 23(a)(4). Fabrienne English is represented by John R. Parker, Jr., Esq. - jparker@kcrlegal.com -- Renee Fagan Kennedy, Esq. -- rkennedy@kcrlegal.com -- CURTIS BROOKS CUTTER, KERSHAW, CUTTER & RATINOFF, LLP Defendants are represented by Purvi Govindlal Patel, Esq. -- ppatel@mofo.com -- Margaret Elizabeth Mayo, Esq. -- mmayo@mofo.com -- Penelope Athene Preovolos, Esq. -- pprevolos@mofo.com -- MORRISON & FOERSTER LLP APPLE INC: Bids for Summary Judgment in "Backhaut" Case Granted --------------------------------------------------------------- District Judge Lucy H. Koh granted Defendant's motion for summary judgment in the captioned case ADAM BACKHAUT and KENNETH MORRIS, Plaintiffs, v. APPLE INC., Defendant, Case No. 14-CV-02285-LHK, (N.D. Cal.) Plaintiffs Adam Backhaut and Kenneth Morris bring this present putative class action on behalf of themselves and others similarly situated against Defendant Apple, Inc. for violations of the Wiretap Act, 18 U.S.C. Section 2510 and California's Unfair Competition Law, Cal. Bus. & Prof. Code Section 17200. The gravamen of Plaintiffs' First Amended Complaint (FAC) is that Apple wrongfully intercepts, stores, and otherwise prevents former Apple device users from receiving text messages sent to them from current Apple device users. Defendant filed a motion for summary judgment. In her Order dated November 30, 2015 available at http://is.gd/NIFmPHfrom Leagle.com, Judge Koh granted Defendant's motion for summary judgment. The Court denied as moot Plaintiffs' motion for leave. The Court concludes that there is insufficient evidence that Defendant intercepted any messages within the meaning of the Wiretap Act and insufficient evidence that Defendant used a device as defined by the Wiretap Act. Because Defendant has shown an absence of genuine dispute of material fact on these points, the Court grants Defendant's motion for summary judgment as to the Wiretap Act claim. Because Plaintiffs' UCL claim is dependent upon Plaintiffs' Wiretap Act claim, the Court also grants Defendant's motion for summary judgment as to the UCL claim. The Court need not address Defendant's other bases for summary judgment or Plaintiffs' counterarguments thereto. The Court agrees with Defendant on two grounds: (1) that the undisputed evidence shows that any acquisition by Defendant did not occur at the time of transmission as required by the Wiretap Act, and (2) that the undisputed evidence shows that the "device" used by Defendant falls within the "ordinary course of business" exception to Wiretap Act liability. William M. Audet, Esq. -- waudet@audetlaw.com -- Jonas Palmer Mann, Esq. -- jmann@audetlaw.com -- Joshua Caleb Ezrin, Esq. -- jezrin@audetlaw.com -- Theodore H. Chase, Esq. -- tchase@audetlaw.com and Mark Etheredge Burton, Jr., Esq. of Audet and Partners, LLP serve as counsel for Plaintiff Adam Backhaut David Michael Walsh, Esq. -- dwalsh@mofo.com -- Kai Shields Bartolomeo, Esq. -- kbartolomeo@mofo.com and Tiffany Cheung, Esq. -- tcheung@mofo.com of Morrison & Foerster LLP serve as counsel for Defendant Apple Inc. BANK OF AMERICA: Settlement in "Brawner" Suit Okayed ---------------------------------------------------- The plaintiff Zelma Brawner sued her former employer, the defendant Bank of America, N.A., alleging that the bank misclassified her and other customer-service representatives as administrative employees who were exempt from California's overtime and other labor laws. She alleged five claims: 1) failure to pay overtime wages in violation of California Labor Code Sec. 1194(a); 2) failure to provide accurate itemized wage statements in violation of California Labor Code Sec. 226(e); 3) willful failure to pay all wages due within 72 hours after separation from employment in violation of California Labor Code Sec. 201, 202, and 203; 4) a resulting violation of California's unfair competition law, California Business and Professions Code Sec. 17200; and 5) a violation of the Labor Code Private Attorneys General Act ("PAGA"), California Labor Code Sec. 2698 et seq. The parties settled the case, and the court granted the Plaintiff's unopposed motion for preliminary approval of the proposed class-action settlement. The plaintiffs now move for final approval of the settlement, attorney's fees of $562,500, litigation expenses of $10,537.04, claims-administration expenses of $9,000, and a $15,000 incentive award to the named plaintiff; the defendant does not oppose the motion. The court held a fairness hearing on January 14, 2016. The court finds the settlement fair, adequate, and reasonable and approves the final settlement, including fees, costs, administration expenses, and the incentive award. The date of the court's order is January 14. The case is captioned, ZELMA BRAWNER, an individual, on behalf of herself and all others similarly situated, Plaintiff, v. BANK OF AMERICA NATIONAL ASSOCIATION, a business entity, form unknown, and DOES 1 through 25, Defendants. No. 3:14-cv-02702-LB (N.D. Cal.). BAXALTA: Shareholders Sue Over Merger with Shire ------------------------------------------------ Lorraine Bailey, writing for Courthouse News Service, reported that shareholders filed a court challenge over the $32 billion acquisition of Baxalta by Shire PLC, a merger which will create a global leader in rare-disease treatment. Martin Bertisch filed a class action against Baxalta, its board of directors, and Shire in Delaware Chancery Court on Jan. 21. Ireland-based drug maker Shire said it will buy Illinois-based Baxalta for $47.50 a share in cash and stock, a total valuation of $32 billion. The deal offers Baxalta shareholders a 37.5 percent premium on the company's August 2015 share price, the date of Shire's initial and rejected all-cash offer. The accepted offer will give Baxalta shareholders a 34 percent stake in the combined company. The combination will create a pharmaceutical giant in the market for treatment of rare diseases, a market that is expected to account for 65 percent of drug revenues by 2020. According to the New York Times, "Part of Shire's ability to pay such a premium for Baxalta is tax savings." The combined company, headquartered in Ireland, will be subject to a tax rate of 16 to 17 percent, compared to Baxalta's current rate of 23 to 24 percent -- which will save it $500 million annually. However, plaintiff shareholders are unhappy with Shire's offer and question why Baxalta's board accepted the merger when just five months ago they rejected a lower offer because "a merger at this time would be severely disruptive at this very early stage of Baxalta's existence as a public company." Baxalta only became an independent company in July 2015, when it was spun off from Baxalta International. Plaintiffs say Baxalta's intrinsic value is higher than $32 billion, especially given the additional costs Shire expects the company will be able to save on taxes and synergies. Tax considerations also drove the proposed $54 billion sale of Shire to AbbVie last year, but the deal was dropped when the Treasury Department adopted new rules against corporate inversions - the term for when an American company acquires a foreign company and reincorporates abroad to lower its tax bill. The class seeks an injunction against the proposed merger and damages for breach of fiduciary duty. It is represented by Seth Rigrodsky with Rigrodsky & Long in Wilmington, Delaware. BEDESSEE IMPORT: Recalls Cereal Product Due to Insects ------------------------------------------------------ Starting date: December 2, 2015 Type of communication: Recall Alert sub-type: Notification Subcategory: Extraneous Material Hazard classification: Class 3 Source of recall: Canadian Food Inspection Agency Recalling firm: Bedessee Import Ltd. Distribution: Ontario Extent of the product distribution: Retail CFIA reference number: 10167 Brand Common name Size Code(s) on UPC name ----------- ----- product --- ---- ---------- Cream 3 Minutes 800 g 16 NO 11 0 72400 01159 7 of Wheat Original Hot Cereal BECKMAN COULTER: Recalls Cellular Analysis System ------------------------------------------------- Starting date: December 1, 2015 Posting date: January 7, 2016 Type of communication: Medical Device Recall Subcategory: Medical Device Hazard classification: Type II Source of recall: Health Canada Issue: Medical Devices Audience: General Public, Healthcare Professionals, Hospitals Identification number: RA-56518 Beckman Coulter determined that the affected software for the DXH systems allows the creation of multiple orders with the same specimen identification (ID) but different patient identification when manually editing pending orders at the system manager. The issue does not occur for edits of released results or for test orders requested through host transmission. The issue creates the potential for sample misidentification and potential of releasing erroneous results. Affected products: A. UNICEL DXH 800 COULTER CELLULAR ANALYSIS SYSTEM Lot or serial number: All lots. Model or catalog number: 629029 B24802 B. UNICEL DXH SLIDEMAKER STAINER COULTER CELLULAR ANALYSIS SYSTEM Lot or serial number: All lots. Model or catalog number: 775222 C. UNICEL DXH 600 COULTER CELLULAR ANALYSIS SYSTEM Lot or serial number: All lots. Model or catalog number: B23858 Manufacturer: Beckman Coulter, Inc. 250 S. Kraemer Blvd. Brea 92821 California UNITED STATES BENEFICIAL KENTUCKY: Judge Certifies Class of Chapter 7 Debtors --------------------------------------------------------------- Bankruptcy Judge Tracey N. Wise of the United States District Court for Eastern District of Kentucky granted in part Debtors' motion for class certification in the case captioned, IN RE KENNETH L. BIERY, SANDRA K. BIERY, DEBTORS, Case No. 10-23338(E.D. Ky.). Debtors Kenneth and Sandra Biery received a Chapter 7 discharge shortly after filing bankruptcy. That discharge extinguished their personal liability on their home mortgage, and enjoined Debtors' mortgagee, Beneficial Kentucky, Inc., and mortgage servicer, HSBC Mortgage Services, Inc. from collecting the debt as a personal liability. The Debtors' bankruptcy did not, however, extinguish Beneficial's mortgage, or alter Beneficial's in rem right to foreclose in the event that Debtors defaulted on their discharged debt. More than a year after the Debtors' discharge, Beneficial filed a foreclosure action. Respondents did not confine themselves to pursuing their in rem rights after the Debtors' discharge. They also sent the Debtors a series of statements both before and after the filing of the foreclosure action. Many of these statements contained disclaimers that acknowledged the discharge of the Debtors' personal liability, but reminded the Debtors of the continued existence of Beneficial's lien and advised the Debtors of the amounts of voluntary payments required to avoid default. The Debtors believe that both types of statements violate their discharge injunction and have moved to hold Respondents in contempt. They further seek to represent two subclasses of discharged chapter 7 debtors in the District with similar contempt claims for discharge violations against Respondents: (1) debtors who received Billing Statements post-discharge, and (2) debtors who received Informational Statements post-discharge. In the Memorandum Opinion and Order dated December 11, 2015, available at http://is.gd/l89TJ0from Leagle.com, Judge Wise concluded that class treatment is inappropriate for the claims of debtors who received Informational Statements, but is appropriate for the claims of debtors who received regular Billing Statements. The Court certifies a class under Rule 23(b)(3) of "All persons with real estate loans administered by Beneficial Kentucky, Inc., or HSBC Mortgage Services, Inc., who filed a Chapter 7 bankruptcy petition in the Eastern District of Kentucky which resulted in the entry of a discharge between September 16, 2008 and the present, and who received a statement substantially similar to the statements in the record at ECF Nos. 121-8 and 148-1 after the discharge became effective." The Court granted appointment of Debtors as class representatives and Strauss Troy Co. LPA, Matthew Sanning, and Nicholas Nighswander as class counsel. A status conference was scheduled on the matter for January 12, 2016 at 11:00 a.m. Kenneth Leo Biery is represented by Robert R. Sparks, Esq. - rrsparks@strausstroy.com -- STRAUSS TROY BENLAN INC: Recalls Med-RX Feeding Tubes Due to Mislabeling ----------------------------------------------------------- Starting date: November 25, 2015 Posting date: December 23, 2015 Type of communication: Medical Device Recall Subcategory: Medical Device Hazard classification: Type III Source of recall: Health Canada Issue: Medical Devices Audience: General Public, Healthcare Professionals, Hospitals Identification number: RA-56422 There has been a customer complaint indicating that the product had been packaged with the incorrect tube size, and did not reflect what was identified on the product label. Affected products A. MED-RX FEEDING TUBES Lot or serial number: 114842 116433 118251 Model or catalog number: 54-3680R Manufacturer: Benlan Inc. 2760 Brighton Road Oakville L6H 5T4 CANADA BIOMERIEUX INC: Recalls ETest Antimicrobial Testers --------------------------------------------------- Starting date: November 26, 2015 Posting date: January 14, 2016 Type of communication: Medical Device Recall Subcategory: Medical Device Hazard classification: Type II Source of recall: Health Canada Issue: Medical Devices Audience: General Public, Healthcare Professionals, Hospitals Identification number: RA-56596 On October 27th, 2015, a customer reported a low Mic on Etest Piperacillin/Tazobactam (4 ug/ml) PTC-256 single pack (lot 1004271120). The customer obtained erroneous results (false susceptible) on Etest with broth-micro dilution reference method. Affected products A. ETEST ANTIMICROBIAL SUSCEPTIBILITY TESTING - PIPERACILLIN/TAZOBACTAM Lot or serial number: 1002092270 1002276210 1002375410 1002482640 1002995820 1003105180 1003416920 1003699550 1003980200 1004180840 1004276460 1004398470 Model or catalog number: 521418 Manufacturer: Biomerieux Inc. 595 Anglum Road Hazelwood 63042 Missouri UNITED STATES B. ETEST ANTIMICROBIAL SUSCEPTIBILITY TESTING - PIP/TAZO/CON-4 Lot or serial number: 1001936360 1002488490 1003069230 1003276060 1003415090 1003697470 1003977300 1004178060 1004271120 1004331500 Model or catalog number: 412434 Manufacturer: Biomerieux Inc. 595 Anglum Road Hazelwood 63042 Missouri UNITED STATES BLUE BUFFALO: Eyes $32-Mil. Settlement in Pet Food Class Actions ---------------------------------------------------------------- Blue Buffalo Pet Products, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2015, for the quarterly period ended September 30, 2015, that the Company has reached a tentative understanding with class action plaintiffs on a potential settlement value of $32 million. The Company said, "On May 6, 2014, Nestle Purina Petcare Company ("Nestle Purina") filed a lawsuit against us in the United States District Court for the Eastern District of Missouri, alleging that we have engaged in false advertising, commercial disparagement, unfair competition, and unjust enrichment (the "Nestle Purina litigation"). Nestle Purina asserts that, contrary to our advertising and labeling claims, certain BLUE products contain chicken or poultry by-product meals, artificial preservatives and/or corn and that certain products in the BLUE grain-free lines contain grains. Nestle Purina also alleges that we have made false claims that our products (including LifeSource Bits) provide superior nutrition and health benefits compared to our competitors' products. In addition, Nestle Purina contends that we have been unjustly enriched as consumers have paid a premium for BLUE products in reliance on these alleged false and misleading statements, at the expense of our competitors. Nestle Purina seeks an injunction prohibiting us from making these alleged false and misleading statements, as well as treble damages, restitution and disgorgement of our profits, among other things. In addition, Nestle Purina has issued press releases and made other public announcements, including advertising and promotional communications through emails and internet and social media websites that make claims similar to those contained in their lawsuit. Nestle Purina seeks a declaratory judgment that these statements are true and do not constitute defamation. Nestle Purina later amended its complaint a second time to supplement certain allegations and to add a claim regarding the advertising for one of our pet treats. On September 25, 2015, Nestle Purina sought the Court's leave to amend its complaint a third time. The proposed amendments add a new party-BLUE's wholly owned subsidiary Great Plains Leasing LLC-new causes of action under Connecticut and Missouri state law, and seek to update Nestle Purina's factual allegations. BLUE will oppose Nestle Purina's application." "On May 14, 2014, we filed a lawsuit against Nestle Purina in the United States District Court for the Eastern District of Missouri, alleging that Nestle Purina has engaged in false advertising, unfair competition, unjust enrichment, and defamation. We allege that the statements made by Nestle Purina advertising the allegations of their lawsuit are false and misleading, and we deny that our product formulas contain chicken or poultry by-product meals, artificial preservatives or corn and we deny that any of our grain-free products contain grains. We also assert that Nestle Purina's statements falsely imply that our products are not made in the United States and are subject to quality control issues. We allege that Nestle Purina's conduct as described in this lawsuit is aimed at destroying the reputation and goodwill of the BLUE brand and may induce consumers to make purchasing decisions based on Nestle Purina's false and misleading representations about the composition and sourcing of BLUE products. Our complaint in this lawsuit seeks, among other things, a preliminary and permanent injunction prohibiting Nestle Purina from disseminating such false information, as well as damages (including punitive damages), restitution and disgorgement of all profits attributable to their false and deceptive advertising. On June 4, 2014, this lawsuit was consolidated with the Nestle Purina lawsuit. We have since amended our pleading to name as additional defendants the two advertising and public relations agencies that assisted Nestle Purina with its advertising campaign. "In the course of pretrial discovery in the consolidated Nestle Purina lawsuit, beginning in September 2014 documents and information were revealed that indicate that a facility owned by a major supplier of ingredients to the pet food industry, including Blue Buffalo, for a period of time, had mislabeled as "chicken meal" or "turkey meal" ingredients that contained other poultry- based ingredients that were inappropriate for inclusion in "chicken meal" or "turkey meal" under industry standards, and it appears that this mislabeling was deliberate. This conduct was undertaken by the supplier without our knowledge, and we have since ceased purchasing ingredients from this supplier. This supplier was one of our primary sources of chicken meal and turkey meal. As a result of the supplier's conduct, our advertising claims of "no chicken or poultry by-product meals" were inaccurate as to products containing the mislabeled ingredients. Therefore, we may be exposed to false advertising liability to Nestle Purina and others to the extent a claimant can prove they were injured by our actions. Such liability may be material. We have brought third-party indemnity and damages claims, with respect to the Nestle Purina lawsuit, against the supplier that mislabeled the ingredients, as well as a broker involved in those transactions for such mislabeled ingredients. The trial court narrowed certain of our third party claims in response to motions to dismiss filed by the third parties but allowed numerous claims to proceed. In addition, we maintain insurance coverage for some of the Nestle Purina claims. However, we may not be able to fully recover from such supplier, broker or from our insurance the full amount of any damages we might incur in these matters. "On October 15, 2014, we initiated a separate lawsuit against Nestle Purina in state court in Connecticut. Nestle Purina subsequently removed the case to the United States District Court for the District of Connecticut, and the Connecticut District Court then granted Nestle Purina's motion to transfer this matter to the same court where Nestle Purina's lawsuit against us is pending. Our complaint in this matter alleges that Nestle Purina has intentionally engaged in false advertising, unfair trade practices and unjust enrichment in the promotion and advertisement of numerous of its products. In particular, our complaint alleges that Nestle Purina is deceptively advertising that certain high- quality, wholesome ingredients are present in certain of Nestle Purina's most popular pet food products in greater amounts, or are more prevalent in the products in relation to other ingredients, than is actually the case. In addition, our complaint alleges that Nestle Purina is deceptively advertising certain of its products as healthy and nutritious when in fact Nestle Purina knew that these products were unsafe and were responsible for illness and even death in many of the dogs that consumed them. And our complaint alleges that Nestle Purina falsely claims its "Just Right" brand of dog food is personalized to match each dog's unique nutritional needs when it consists of only a limited set of basic ingredient formulas, each of which is substantially similar to the others. Our complaint seeks an injunction prohibiting Nestle Purina from continuing these false and misleading advertisements, as well as damages and disgorgement of profits, among other things. The matter is in the early stages of discovery. On July 31, 2015, Nestle Purina filed an amended answer in this case that also asserted counterclaims against us. Nestle Purina asserted that our complaint does not state viable claims, but that if a ruling is entered against it then "in the alternative" it asserts counterclaims that relate to the advertising of a variety of our products, which Nestle Purina contends are misleading or deceptive as to the amounts of certain ingredients in those products. On August 28, 2015, we amended our complaint to include allegations that Nestle Purina falsely claims that its "Bright Mind" dog food is proven to promote alertness, mental sharpness, memory, trainability, attention, and interactivity in dogs age seven and older, when in fact such claims are unsubstantiated and false. In response to Nestle Purina's amended answer and counterclaims, we filed a motion to dismiss the counterclaims in their entirety on October 2, 2015. That motion is pending. "We believe Nestle Purina's claims are without merit and intend to vigorously defend ourselves. Although we have determined that a loss contingency with respect to the Nestle Purina litigation is reasonably possible, such litigation and lawsuits are still in their early stages and the final outcome is uncertain. In particular, we have determined that the reasonably possible loss or range of loss resulting from Nestle Purina proceedings cannot be reasonably estimated due to the following reasons: (1) the early stages of the proceedings, (2) the lack of specific damages sought by the plaintiffs, (3) the uncertainty as to plaintiffs' support for their damages claim, (4) the uncertainty as to factual issues and (5) our claims against third party defendants and counterclaims against Nestle Purina. "In addition, a number of related putative consumer class action lawsuits have been filed making allegations similar to Nestle Purina's and seeking monetary damages and injunctive relief. We also have brought damages and indemnity claims against our former ingredient supplier and broker with respect to the class action lawsuits. In October 2015, we reached a tentative understanding with the plaintiffs on a potential settlement value of $32 million (the "Potential Settlement"). However, at the time of filing, we have not reached an agreement and no assurance can be given that an agreement can be reached. This tentative understanding is subject to further negotiations regarding other critical terms of the settlement, and the completion of a settlement stipulation by the parties as well as preliminary and final approval by the Court. "We currently estimate that the reasonably possible loss relating to the Potential Settlement will not exceed the potential settlement value. The potential settlement value does not take into account any potential recovery from insurance or from our former ingredient supplier or broker, against whom we will continue to pursue our claims for indemnity and other damages. Given the uncertainty and the ongoing nature of our settlement discussions, the ultimate outcome of these class action lawsuits cannot be predicted as the parties could fail to reach an agreement in principle with respect to the critical terms, or a definitive settlement agreement; therefore, a liability, if any, is not determinable at this time and the ultimate outcome could differ materially from the current potential settlement value. BORDERFREE INC: Recalls Ceramic Chicken Roasters Due to Burn Risk ----------------------------------------------------------------- Starting date: December 3, 2015 Posting date: December 3, 2015 Type of communication: Consumer Product Recall Subcategory: Household Items Source of recall: Health Canada Issue: Burn Hazard, Laceration Hazard Audience: General Public Identification number: RA-56102 This recall involves the CHEFS Flameproof Ceramic Vertical Chicken Roaster. The affected product is a black roaster consisting of a round roasting pan with handles and a removable insert. The roasting pan measures approximately 30 centimetres (11.75 inches) in diameter on the inside and approximately 6.35 centimetres (2.5 inches) high, and the removable insert measures approximately 19 centimetres (7.5 inches) in diameter at the base and approximately 11.5 centimetres (4.5 inches) high. The underside of the handles is slightly recessed for grip. The CHEFS logo is at the center of the rimmed base. The recalled product has UPC 844819023870. The vertical roasters can break or shatter, posing burn and laceration hazards. Neither Borderfree, Inc. nor Health Canada has received any reports of consumer incidents or injuries related to the use of these roasters in Canada. Approximately 6 units were sold in Canada. The roasters were sold from June 2014 through April 2015 through online retailers and shipped through Borderfree. Manufactured in China. Importer: Borderfree, Inc. Toronto Ontario CANADA Manufacturer: China Jiangsu Ceramics I & E (Group) Corp. Ltd Nanjing CHINA Manufacturer: Chaoan Huimei Porcelain & Ceramic Factory Guangdong CHINA Consumers should immediately stop using the recalled roasters and contact Borderfree, Inc. to receive a gift card equal to the purchase price. For more information, consumers may contact Borderfree, Inc. by telephone toll-free at 1-866-921-1861 from Monday to Friday, between 8:00 a.m. and 9:00 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. Pictures of the Recalled Products available at: http://is.gd/aDarxK BRANAM HOLDINGS: Has Sent Unsolicited Fax Messages, Suit Claims --------------------------------------------------------------- Scoma Chiropractic, P.A. a Florida corporation, individually and as the representative of a class of similarly situated persons v. Branam Holdings LLC, Branam Oral Health Technologies, Inc. and John Does 1-10, Case No. 2:15-cv-00758-UA-MRM (M.D. Fla., December 12, 2015) seeks to put an end of the Defendants' practice of sending unsolicited facsimiles. The Defendants own and operate an orthodontic company in Florida. The Plaintiff is represented by: Ryan M. Kelly, Esq. ANDERSON + WANCA 3701 Algonquin Road, Suite 500 Rolling Meadows, IL 60008 Telephone: (847) 368-1500 Facsimile: (847) 368-1501 E-mail: RKelly@andersonwanca.com BULLSEYE ENERGY: Oklahoma Class Suits Consolidated -------------------------------------------------- District Judge Terence C. Kern of the United States District Court for the Northern District of Oklahoma consolidated Case No. 15-CV- 455 with Case No. 12-CV-411 for trial purposes, appointed United States Magistrate Judge Paul Cleary as the magistrate judge for the consolidated action, denied Plaintiffs' Motion to Certify a Class, Defendants' Motions to Strike, to Exclude Expert Report of John Burritt McArthur and to Dismiss Complaint in the case captioned, KEVIN JETER, JOE A. JETER, BARBARA LUCAS, JAMES H. MILLER, SHARON RIGSBY MILLER, LARRY SMITH, JANICE SUE PARKER, individually and as Class Representatives on Behalf of All Similarly-Situated Persons, Plaintiffs, v. BULLSEYE ENERGY INC., CEP MID-CONTINENT, LLC, KRS&K, an Oklahoma Partnership, GASHOMA, INC. PURGATORY CREEK GAS, INC., REDBIRD OIL, an Oklahoma Partnership, WILD WEST GAS, LLC, WHITE HAWK GAS, INC., FOUNTAINHEAD, LLC, ROBERT M. KANE, LOUISE KANE ROARK, ANNE KANE SEIDMAN, MARK KANE, PAMELA BROWN, GARY BROWN, Defendants. and KEVIN JETER, JOE A. JETER, BARBARA LUCAS, JAMES H. MILLER, SHARON RIGSBY MILLER, LARRY SMITH, JANICE SUE PARKER, JAMES D. ENLOE, CAROLYN R. ENLOE, and SCOTT BAILY, individually and as Class Representatives on Behalf of All Similarly-Situated Persons, Plaintiffs, v. CEP MID-CONTINENT, LLC, ROBERT M. KANE, LOUISE KANE ROARK, ANNE KANE SEIDMAN, MARK KANE, PAMELA BROWN, and GARY BROWN, Defendants, Case Nos. 12-CV-411-TCK-PJC, 15-CV-455-TCK-TLW (N.D. Okla.). Before the Court are Joint Status Reports filed in Case No. 12-CV- 411-TCK-PJC (12-CV-411) and Case No. 15-CV-455-TCK-TLW. Based on review of the Joint Status Reports, the Second Amended Complaint in 12-CV-411, and the Complaint in 15-CV-455, it is clear that the cases involve numerous common questions of law and fact. The RICO claims asserted in 15-CV-455 against CEP Mid-Continent, the Kane family members, and the Browns are identical or substantially similar to the newly added RICO claims in 12-CV-411. The only difference is that the claims in 15-CV-455 are asserted by three additional named Plaintiffs -- James Enloe, Carolyn Enloe, and Scott Baily. Because the Court permitted Plaintiffs' proposed amendment, the new case is essentially subsumed within the original case. In his Opinion and Order dated January 5, 2016 available at http://is.gd/sjElGZfrom Leagle.com, Judge Kern found that there is no reason for the cases to proceed separately, and consolidation will further the interest of judicial economy. The Court rejected Plaintiffs' proposal to hold a preliminary class- certification hearing on the claims asserted in their original Complaint in 12-CV-411 and then hold a second class-certification hearing on the newly asserted RICO claims in 12-CV-411 and originally asserted in 15-CV-455 finding that all related motions are moot in light of the Second Amended Complaint. Plaintiffs are represented by: Charles Loy Richardson, Esq. Gary L. Richardson, Esq. Jason Charles Messenger, Esq. Mbilike Mwafulirwa, Esq. RICHARDSON RICHARDSON BOUDREAUX 7447 S Lewis Ave Tulsa, OK 74136 Tel: (918)492-7674 - and - Charles Robert Burton, IV, Esq. BURTON LAW FIRM PC 3785 Harrison Blvd #1 Ogden, UT 84403 Tel: (801)393-1106 - and - Kevin Duane Adams, Esq. KEVIN D ADAMS PLLC210 W 12th Street Tulsa, OK 74119 Tel: (918) 582 1313 Defendants are represented by Bruce Wayne Robinett, Esq. -- dking@robinettking.com -- BREWER WORTEN ROBINETT ET AL, J. Kevin Hayes, Esq. -- khayes@hallestill.com -- Pamela S. Anderson, Esq. -- panderson@hallestill.com -- HALL ESTILL HARDWICK GABLE GOLDEN & NELSON BUMBLE BEE: Dismissal Bid in "McMahon" Case Denied -------------------------------------------------- District Judge John J. Tharp, Jr. denied the Defendant's motion to dismiss in the captioned case JOSEPH McMAHON, individually and on behalf of all others similarly situated, Plaintiff(s), v. BUMBLE BEE FOODS LLC, Defendant(s), Case No.: 14 C 03346, (N.D. Ill.) This putative class action seeks recovery from Bumble Bee Foods LLC under the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA), 815 ILCS 505/1, the Illinois Food, Drug and Cosmetic Act (IFDCA), 410 ILCS 620/1, and a variety of common law claims, including unjust enrichment.1 The named plaintiff, Joseph McMahon, alleges that Bumble Bee engaged in deceptive conduct when it sold various seafood products with labels that indicated they were an "Excellent Source of Omega 3." Bumble Bee moves to dismiss McMahon's IFDCA claim on preemption grounds and contends that McMahon's unjust enrichment claim is not a viable cause of action under Illinois law. In the alternative, Bumble Bee moves to have McMahon's case stayed until January 1, 1016, which is when the FDCA's recently adopted rule concerning Omega-3 nutrients becomes effective. In his Memorandum Opinion and Order dated December 2, 2015 available at http://is.gd/qEyLICfrom Leagle.com, Judge Tharp, Jr. said Bumble Bee's argument is unpersuasive because it rests, again, on the faulty premise that the plaintiff is seeking to enforce the regulatory requirements of the new Omega-3 rule. Its statement that "the court cannot order Bumble Bee to remove all nutrient content claims concerning omega-3 [(sic) before January 1, 2016 because that would be directly counter to the FDA's Omega- 3 Rule. If, under the existing regulations, Bumble Bee is not authorized to include Omega-3 statements on its labels, then the Court would have the power to enjoin Bumble Bee from selling more misbranded products. As a practical matter, moreover, it is unnecessary to stay the case. At issue is Bumble Bee's motion to dismiss; in ruling on that motion, the Court only assumes the truth of the allegations in the complaint and cannot provide affirmative relief to the plaintiff even if the motion to dismiss is denied. And at this late juncture, it is a certainty that no injunction relating to Bumble Bee's compliance with current labeling requirements will be entered before the new Omega-3 Rule comes into effect on January 1, 2016. Even without a stay, there is no risk that Bumble Bee will be forced to comply with an injunction requiring it to remove Omega-3 statements from its labels before January 1, 2016. Robert A. Clifford, Esq. -- rac@cliffordlaw.com -- and Shannon Marie McNulty, Esq. -- smm@cliffordlaw.com -- of Clifford Law Offices serve as counsel for Plaintiff Joseph McMahon Forrest A Hainline, III, Esq. -- fhainline@goodwinprocter.com -- and Patrick S Thompson, Esq. -- pthompson@godwinprocter.com -- of Goodwin Procter, LLC -- Louis David Bernstein, Esq. -- lbernstein@bernsteinlawchicago.com and Michael Thomas Herbst, Esq. -- mherbst@bernsteinlawchicago.com of The Bernstein Law Firm serve as counsel for Defendant Bumble Bee Foods, LLC BUMBLE BEE: U.S. Intervenes in Packaged Seafood Antitrust Suit -------------------------------------------------------------- Bianca Bruno, writing for Courthouse News Service, reported that an ongoing antitrust case against seafood giants got even bigger as the federal government has intervened in litigation against the likes of Bumble Bee, Tri-Union Seafoods, StarKist, and others. U.S. District Court Judge in San Diego Janis Sammartino held a status conference on Jan. 20 in a room filled to the brim with more than 50 lawyers from around the nation, hoping to move the case forward. The U.S. Department of Justice Antitrust Division filed an unopposed motion to intervene in the lengthy litigation on Jan. 13. The feds are seeking a limited stay of discovery to aid in an ongoing federal grand jury investigation in the Northern District of California, into whether the biggest canned tuna producers violated the Sherman Act by conspiring to fix prices. The original class action complaint was filed in San Diego by Olean Wholesale Grocery Cooperative on Aug. 3, 2015. Dozens of lawsuits over price-fixing by the three biggest packed-seafood companies have since trickled into San Diego Federal Court after being transferred from other courts across the nation. The three companies control 73 percent of the U.S. market: Bumble Bee, 29 percent; StarKist, 25.3 percent; and Tri-Union, 18.4 percent, according to the complaint. Both Bumble Bee and Tri-Union Seafoods, which makes Chicken of the Sea brand shelf-stable tuna, are headquartered in San Diego - once the tuna-fishing capital of the world. At Jan. 20 status conference, Sammartino heard from plaintiffs' attorneys on multiple items, with the top concern being how to divvy up the case so that all interests are properly represented. Plaintiffs' attorneys want the case to be divided into several "tracks" including a case for direct-purchaser plaintiffs, indirect-purchaser plaintiffs, class action plaintiffs and commercial food preparers. A plaintiff steering committee of lead attorneys would be established to represent the entire group. The two purchaser groups could not come to an agreement among themselves as to who would serve as lead counsel, however, so Sammartino will decide who will serve on the steering committee once briefs on the matter have been filed by Feb. 1. Belinda Lee, representing defendant StarKist, had concerns about divvying up the litigation into many different tracks. She instead suggested the court split the massive case into two tracks: direct and indirect. "I've given so much thought as to how to structure this and streamline this," Sammartino said. "I'd love to see less than four tracks, but that might not happen because all the interests need to be represented. What is it going to take to move this large case forward in a way that's efficient?" The umbrella litigation will get even larger as more cases are expected to be filed within one to two weeks. Both civil and criminal actions filed against the "Big Three" pertain to claims of collusive conduct among packaged seafood manufacturers, with allegations of a conspiracy to fix prices, rig bids or allocate markets. Plaintiffs also asked defendants at the status conference to provide all documents produced by the Justice Department connected to the grand jury before they file a consolidated amended complaint, which is expected in the next couple months. Sammartino advised plaintiffs who want to be appointed to leadership positions on the steering committee to file their briefs by Feb. 1. Following the appointment of head attorneys by the judge, the plaintiffs and defendants will meet with the Justice Department. Consolidated complaints covering the different tracks will be due 45 days after leaders are established. Major plaintiffs in the case include Affiliated Foods, Harvesters Enterprises, Giant Eagle, Associated Grocers, Albertsons Companies and The Kroger Company among many others. Sammartino set the next hearing for March 11. C-TWO GROUP: Court Grants Class Certification in "Mendez" --------------------------------------------------------- District Judge Haywood S. Gilliam, Jr. of the United States District Court for Northern District of California granted class certification in the case captioned, JAMIE MADRIGAL MENDEZ, Plaintiff, v. C-TWO GROUP, INC., et al., Defendants, Case No. 13-CV-05914-HSG (N.D. Cal.). Plaintiff filed her initial complaint, on behalf of herself and others similarly situated, in San Francisco Superior Court. The defendants named in that original complaint jointly removed the action to this Court shortly afterwards. Plaintiff then filed a first amended class action complaint, which, on motion, the Court dismissed for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Plaintiff filed the operative second amended class action complaint against Defendants, alleging that they sent her unsolicited and nonconsensual text messages that sought her patronage at a nightclub in San Francisco called Infusion Lounge for over two years. Plaintiff argues that this conduct violated Section 227 of the Telephone Consumer Protection Act, which proscribes, in relevant part, using an automatic telephone dialing system to contact someone in the United States on their telephone without prior express consent. Plaintiff seeks compensatory and punitive damages, injunctive relief, and attorneys' fees and costs. In the motion, Plaintiff seeks to certify a damages class under Federal Rule of Civil Procedure 23(b)(3) that includes all individuals who received a text message from a source associated with Defendants C & L Associates Incand C-Two Group, Inc. after entering their contact information on a website for a nightclub. Defendants contend that: (1) the putative class is not ascertainable; (2) Plaintiff does not satisfy the Rule 23(a) requirements because she is not an adequate class representative and her counsel is not adequate class counsel; (3) common issues do not predominate over individual issues; and (4) class treatment is not superior to other methods of adjudication. In the Order dated December 10, 2015, 2015 available at http://is.gd/rp2ZYZfrom Leagle.com, Judge Gilliam, Jr. found that Plaintiff and her counsel have satisfied all of the requirements for Rule 23(a), as well as the requirements of Rule 23(b)(3). The Court ordered the parties to meet and confer and submit a stipulation and proposed order regarding a class notice program that comports with the requirements of Rule 23(c) by December 22, 2015. Jaime Madrigal Mendez is represented by: Richard David Lambert, Esq. Elaine W. Yan, Esq. Gene J. Stonebarger, Esq. STONEBARGER LAW, APC 75 Iron Point Cir # 145, Folsom, CA 95630 Tel: (916)235-7140 - and - Prescott Wayne Littlefield, Esq. -- pwl@kearneylittlefield.com -- Thomas Andrew Kearney, Esq. -- tak@kearneylittlefield.com -- KEARNEY LITTLEFIELD LLP Defendants are represented by: Alex F. Pevzner, Esq. Laurie Elizabeth Sherwood, Esq. WFBM, LLP 1 City Boulevard West, 5th Floor Orange, CA 92868 Tel: (714) 634-2522 CAFEPRESS INC: Court Entered Final Approval of Settlement --------------------------------------------------------- CafePress Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2015, for the quarterly period ended September 30, 2015, that a court in California has entered a judgement and order granting final approval of a class action settlement. On July 10, 2013, a complaint captioned Desmarais v. CafePress Inc., et al. CIV-522744 was filed in the Superior Court of California, County of San Mateo naming the Company as defendants, along with certain of its directors, its chief executive officer, its chief financial officer and certain underwriters of our IPO. The lawsuit purports to be a class action on behalf of purchasers of shares issued in the IPO and generally alleges that the registration statement for the IPO contained materially false or misleading statements. The complaint purports to assert claims under the Securities Act of 1933, as amended, and seeks unspecified damages and other relief. On July 14, 2013 a similar compliant making substantially identical allegations and captioned Jinnah v. CafePress Inc., et al. CIV-522976 was filed in the same court against the same defendants. On April 10, 2015, the Company entered into a Stipulation of Settlement (the "Settlement"), reflecting the previously disclosed terms of the settlement of the class action securities lawsuits that were consolidated under the caption In re CafePress Inc. Shareholder Litigation , Master File No. CIV522744 (Cal. Super. Ct., San Mateo Cty.). The proposed Settlement calls for a payment of $8.0 million to the plaintiffs in resolution of all claims against the Company and its officers and directors. The Company paid $500,000 in the Settlement; the balance will be paid by the Company's directors and officers liability insurance. While the Company and the other defendants continue to deny each of the plaintiffs' claims and deny any liability, the Company agreed to the Settlement solely to resolve the disputes, to avoid the costs and risks of further litigation and to avoid further distractions to management. On August 11, 2015 the court entered a judgment and order granting final approval of the Settlement. CAMBRIDGE CAPITAL: Amended Complaint Filed in Stockholder Case -------------------------------------------------------------- Cambridge Capital Acquisition Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2015, for the quarterly period ended September 30, 2015, that the plaintiff in a stockholder class action lawsuit has filed an amended complaint. On March 24, 2015, the Company, the members of the Company's board of directors and Parakou were named as defendants in a putative class action and derivative lawsuit captioned Brian Levy v. Cambridge Capital Acquisition Corp., et al., No. 2015 CA 003339. The complaint was filed in the Circuit Court of the 15th Judicial Circuit of Palm Beach County, Florida (the "Action") by a person identifying himself as a stockholder of Cambridge. The complaint generally alleged, among other things, that the members of the Cambridge board of directors breached their fiduciary duties to Cambridge stockholders by approving the Parakou Mergers. The complaint also alleged that there were various conflicts of interest in the transaction and that such conflicts of interest were not adequately disclosed to stockholders in the definitive proxy statement/prospectus that the Company filed with the SEC on March 27, 2015 (the "Proxy Statement/Prospectus"). The Action sought injunctive relief, damages and reimbursement of costs, among other remedies. On April 9, 2015, the plaintiff in the Action filed a motion for a preliminary injunction seeking to enjoin temporarily the closing of the Mergers. On April 15, 2015, the circuit judge set a hearing date of April 17, 2015 for an emergency hearing on the motion for preliminary injunction. The Company, under the advice of legal counsel, believed that the Action was without merit and that no further disclosure was required to supplement the Proxy Statement/Prospectus under applicable laws. However, to eliminate certain burdens, expenses and uncertainties, on April 16, 2015, defendants in the Action entered into a Memorandum of Understanding regarding the settlement of claims asserted in the Action and on April 17, 2015, the plaintiff in the Action filed a notice of withdrawal of its emergency motion for preliminary injunction and unopposed motion to cancel the hearing. Shortly thereafter the Company terminated the Mergers with Parakou and the plaintiff took no further action. On October 15, 2015, the plaintiff filed an amended complaint against Cambridge, Holdco, the members of Cambridge's board of directors and Ability. The amended complaint generally alleges, among other things, that the members of the Cambridge board of directors breached their fiduciary duties to Cambridge stockholders by approving the contemplated merger with Ability and that Ability is aiding and abetting the Cambridge board of directors in the alleged breaches of their fiduciary duties. The complaint also alleges that Cambridge was obligated to liquidate on June 23, 2015 and redeem the outstanding public shares from the funds held in the trust fund and that the efforts to violate Cambridge's amended and restated certificate of incorporation are ultra vires and therefore void acts. The complaint further alleges that Cambridge's directors have various conflicts of interest in the transaction and that such conflicts of interest are not adequately disclosed to stockholders in the definitive proxy statement/prospectus that the Company filed with the SEC on September 17, 2015 (the "Proxy Statement/Prospectus"). The Action seeks injunctive relief, damages and reimbursement of fees and costs, among other remedies. The Company believes that it is reasonably possible that the Action could result in a material loss. However, the Company is not able to estimate the amount. At September 30, 2015, no amounts have been accrued on the Company's condensed consolidated financial statements in connection with this Action. CELLULAR BIOMEDICINE: Hearing on Motion to Dismiss Set for Apr. 6 ----------------------------------------------------------------- Cellular Biomedicine Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2015, for the quarterly period ended September 30, 2015, that the Company's date to answer or move in a class action lawsuit was on or before January 19, 2016, and a hearing on the anticipated motion to dismiss has been set for April 6, 2016. On April 21, 2015, a putative class action complaint was filed against the Company in the U.S. District Court for the Northern District of California captioned Bonnano v. Cellular Biomedicine Group, Inc., 3:15-cv-01795-WHO (N.D. Ca.). The complaint also names Wei Cao, the Company's Chief Executive Officer, and Tony Liu, the Company's Chief Financial Officer, as defendants. The complaint alleges that during the class period, June 18, 2014, through April 7, 2015, the Company made material misrepresentations in its periodic reports filed with the SEC. The complaint alleges a cause of action under Section 10(b) of the Securities Exchange Act of 1934 (the "1934 Act") against all defendants and under Section 20(a) of the 1934 Act against the individual defendants. The complaint does not state the amount of the damages sought. On June 3, 2015, defendants were served. On June 29, 2015, the Court ordered, as stipulated by the parties, that defendants are not required to respond to the initial complaint in this action until such time as a lead plaintiff and lead counsel have been appointed and a consolidated complaint has been filed. The deadline for filing motions for the appointment of lead plaintiff and selection of lead counsel was June 22, 2015. On that date, one motion was filed by the Rosen Law Firm on behalf of putative plaintiff Michelle Jackson. On August 3, 2015, having received no opposition, the Court appointed Jackson as lead plaintiff and the Rosen Law Firm as class counsel. As stipulated among the parties, Jackson filed an amended class action complaint on September 17, 2015. The Company's date to answer or move is on or before January 19, 2016, and a hearing on the anticipated motion to dismiss has been set for April 6, 2016. Discovery will be stayed pending a decision on the motion to dismiss. The amended complaint names ten additional individuals and entities as defendants ("additional defendants"), none of whom are affiliated with the Company, and asserts an additional claim under Section 10(b) and Rule 10b-5(a) and (c) thereunder that the Company purportedly engaged in a scheme with the additional defendants to promote its securities. To date, none of the additional defendants have appeared in the case. The Company believes the suit is without merit and filled with patently false information, and will vigorously defend the Company in the matter. At this early stage of the proceedings it is not possible to evaluate the likelihood of an unfavorable outcome or to estimate the range of potential loss. CHARLESBANK COOPERATIVE: Suit Alleges Violation of AHR ------------------------------------------------------ Michael Kokernak, and all others similarly situated v. Charlesbank Cooperative Corporation, Case No. 15-3717F (Mass. Cmmw., December 8, 2015), is brought against the Defendant for breach of contract by overcharging shareholders of their monthly "Carrying Charge" in violation of the Affordable Housing Restriction. The Defendant is engaged in the business of leasing residential property to "tenants" in Massachusetts. The Plaintiff is represented by: Arthur Hardy-Doubleday, Esq. DOUBLEDAY LAW 45 Prospect St. Cambridge, MA 02139 Tel: (617) 575-2006 E-mail: arthur@doubledaylaw.com - and - Neil Berman, Esq. COMMONSENSE LEGAL COUNSELING 403 Highland Avenue, Ste 209 Somerville, MA 02144 E-mail: njberman2@juno.com CHESAPEAKE APPALACHIA: 3rd Cir. Affirms Ruling on Arbitration ------------------------------------------------------------- Circuit Judge Robert Cowen of the Court of Appeals, Third Circuit, affirmed a trial court decision holding that the availability of class arbitration constitutes a "question of arbitrability" to be decided by the courts and not the arbitrators unless the parties' arbitration agreement "clearly and unmistakably" provides otherwise in the case captioned, CHESAPEAKE APPALACHIA, LLC, v. SCOUT PETROLEUM, LLC; SCOUT PETROLEUM II, LP, Appellants, Case No. 15-1275 (3rd Cir.). In 2008, Chesapeake entered into various oil and gas leases with landowners in several northeastern Pennsylvania counties. On March 17, 2014, Scout filed an arbitration demand against Chesapeake on behalf of itself and similarly situated lessors, alleging that Chesapeake paid insufficient royalties. In the answering statement it filed with the AAA, Chesapeake objected to class arbitration on the grounds that "it did not agree to resolve disputes arising out of the leases at issue in class arbitration nor did Chesapeake agree to submit the question of class arbitrability whether claimants may proceed on a class basis in arbitration to an arbitrator. On December 24, 2014, Scout filed a petition for permission to appeal under Sec. 1292(b). This Court granted its petition on January 21, 2015. On March 4, 2015, Judge Keeley of the United States District Court for the Northern District of West Virginia concluded in Chesapeake Appalachia, LLC v. Suppa, 91 F.Supp.3d 853 that "the court, not an arbitrator, will decide whether the parties agreed to classwide arbitration in the subject leases," In another Chesapeake oil and gas lease case, Northern District of West Virginia Judge Stamp reached the same conclusion. On appeal, Scout Petroleum, LLC and Scout II, LP appealed from the orders of the United States District Court for the Middle District of Pennsylvania granting Chesapeake Appalachia's motions for summary judgment and for an order vacating a decision by the arbitrators and denying Scout's own motion to dismiss the complaint as well its motion for reconsideration. The oil and gas leases at issue in this appeal state that, in the event of a disagreement between "Lessor" and "Lessee" concerning "this Lease," performance "thereunder," or damages caused by "Lessee's" operations, "all such disputes" shall be resolved by arbitration "in accordance with the rules of the American Arbitration Association." In his Opinion dated January 5, 2016 available at http://is.gd/4I89Ogfrom Leagle.com, Judge Cowen concluded that the District Court appropriately granted the motion to vacate and the Leases do not "clearly and unmistakably" delegate the question of class arbitrability to the arbitrators. Scout Petroleum, LLC is represented by: Stewart L. Cohen, Esq. Michael Coren, Esq. Jacob A. Goldberg, Esq. Alessandra C. Phillips, Esq. Robert L. Pratter, Esq COHEN, PLACITELLA & ROTH 2001 Market Street Two Commerce Square, Suite 2900 Philadelphia, PA 19103 - and - Thomas D. Kitch, Esq. Daniel E. Lawrence, Esq. David G. Seely, Esq. Gregory J. Stucky, Esq. FLEESON, GOOING COULSON & KITCH 301 North Main Street 1900 Epic Center Wichita, KS 67202 Chesapeake Appalachia, LLC is represented by: Daniel T. Brier, Esq. MYERS, BRIER & KELLY 425 Spruce Street, Suite 200 Scranton, PA 18503 - and - Daniel T. Donovan, Esq. Ragan Naresh, Esq. KIRKLAND & ELLIS 655 15th Street, N.W., Suite 1200 Washington, DC 20005 CHINA ELECTRIC MOTOR: 9th Cir. Vacates Attorney Fee Award --------------------------------------------------------- Katherine Proctor, writing for Courthouse News Services, reported that, calling a federal judge's award of attorneys' fees "a near total failure," the U.S. Court of Appeals for the Ninth Circuit on Jan. 15, vacated the award in a securities class action that ended in a $3.7 million global settlement. Lead plaintiff Mike McGee appealed the attorneys' fees award, claiming that the judge's calculation of about $666,000 was arbitrary, and the Circuit agreed in a per curiam opinion. The class counsel had requested 25 percent -- about $944,000 -- of the plaintiff investors' settlement with China Electric Motor, but the judge instead applied the lodestar calculation method to determine the attorneys' fees amount. Under the lodestar method, the court multiplies a reasonable number of hours by a reasonable hourly rate. After using the lodestar method, the judge then made a downward adjustment -- reducing the calculated hours by 30 percent -- stating that a review of the billing records disclosed "numerous examples of legal tasks being inappropriately [lumped] together." But the judge did not explain the reasoning, according to the Ninth Circuit's three-judge panel, and "merely asserted that the case was 'a very simple case.'" "While the court noted one or two considerations that might have supported its decision, it failed to explain how it weighed those considerations when calculating the final award," the 12-page opinion said. "A 30 percent reduction is large enough that the parties were entitled to a more detailed explanation of the court's reasoning." The Circuit remanded to the district court for recalculation of the award. "We recognize that the district court had a difficult task in balancing the interests of the class against the need to award a fee that adequately compensates class counsel for their representation in this case," the opinion said. "Yet, this difficulty does not relieve the district court of its responsibility, not only to consider carefully class counsel's fee application, but also to explain fully its reasoning in arriving at its award." Neither side's lead counsel immediately responded to an email requesting comment on Jan. 15 morning. The case is captioned, ROBERT STANGER, Individually and on behalf of all others similarly situated, Plaintiff, and MIKE McGEE, Individually and on behalf of all similarly situated, Plaintiff- Apellant, v. CHINA ELECTRIC MOTOR, INC.; WESTPARK CAPITAL, INC.; ROTH CAPITAL PARTNERS,LLC; RICHARD RAPPAPORT; PHILLIP KEMPISTY; KEMPISTY & COMPANY, CPAS,P,C.; MALONEBAILEY LLP, Defendants- Appelles. No. 13-56903 (9th Cir.) CHIPOTLE MEXICAN: Court to Dismiss "Gallagher" Suit over GMO ------------------------------------------------------------ Maria Dinzeo, writing for Courthouse News Services, that a federal judge in San Francisco on Jan. 14, questioned whether a woman suing Chipotle over the misleading nature of its non-GMO ad campaign wasn't spoiling her chances at victory with her definition of genetically modified organisms. Colleen Gallagher sued Chipotle in August 2015 over its "Food With Integrity" campaign. Through ads using catchy phrases like "G-M- Over It," the fast food chain touted itself as the first in the United States to use ingredients derived from non-genetically modified sources. According to Gallagher's federal class action, "among other things, Chipotle serves meat products that come from animals which feed on GMOs, including corn and soy. Chipotle's tacos and burritos are also usually served with sour cream and cheese from dairy farms that feed animals with GMOs. And, Chipotle also sells Coca-Cola and other soft drinks that are made with corn syrup -- a GMO." The complaint defines a GMO as any organism whose genetic material has been altered using genetic engineering techniques, which is what troubled U.S. District Judge Gilliam S. Haywood Jr., during on Chipotle's motion to dismiss. "Are you saying that the meat and dairy itself has been altered using genetic engineering techniques? What I'm trying to pin down is literal falseness," Haywood told Gallagher's attorney Lawrence King. "Do the ingredients themselves meet the definition of GMO in the complaint?" He added, "I'm trying to figure out if you're pleading yourself out of court by defining GMO this way. You've pled a definition of what a GMO is that seems inconsistent with these ingredients being GMOs." King said the focus should not be on whether the ingredients themselves are GMO-based, but whether Chipotle deceived its customers. "Our contention is that a consumer is likely to be deceived by the representation in the complaint -- 'We are G-M-Over It,'" King said. "They are literally dropping the letters G and M to celebrate the lack of GMOs on the menu, so customers are likely to be deceived." Chipotle attorney Charles Cavanagh shot back, "How can she plausibly allege that any reasonable consumer believes those animals still contain GMOs?" Cavanagh argued that a reasonable Chipotle consumer would know the difference between a genetically engineered animal butchered into meat for a Chipotle burrito and the genetically-altered corn used in the feed for that animal. "A reasonable consumer is capable of deciding what an ingredient is," he said. Haywood said he would dismiss the complaint for now to give Gallagher and her lawyers a chance to address the difference. In other Chipotle news, the beleaguered chain -- dogged by E. coli, salmonella and norovirus outbreaks and a 42 percent drop of its stock price -- has said it would close all its stores for a few hours on Feb. 8 for a company-wide store meeting about food- safety practices. All of the chain's more than 1,900 stores will take part, the company said. CHRYSLER: Recalls RAM Promaster 2015 Models Due to Crash Risk ------------------------------------------------------------- Starting date: November 25, 2015 Type of communication: Recall Subcategory: Light Truck & Van Notification type: Safety Mfr System: Electrical Units affected: 1498 Source of recall: Transport Canada Identification number: 2015572TC ID number: 2015572 Manufacturer recall number: R64 Certain vehicles may experience an intermittent loss of electrical contact in the ignition switch electrical contact block. This may result in loss of motive power and/or partial or complete loss of function of the following safety systems; Airbag/supplemental restraint systems (SRS), Anti-Lock Brakes (ABS), Electronic Stability Control (ESC) and Instrument Panel Cluster. The loss of motive power, ABS and/or ESC system(s), in conjunction with traffic and road conditions, and the driver's reactions, may increase the risk of a crash causing injury and/or damage to property. The loss of airbag/SRS function in a crash that warrants airbag/SRS function may increase the risk of injury to vehicle occupants. Correction: Dealers will replace the ignition switch contact holder block. Make Model Model year(s) affected ---- ----- ---------------------- RAM PROMASTER 2015 COACHING BY CORAL: Runs Ponzi Scam, Class Suit Says --------------------------------------------------- Ryan Kocian, writing for Courthouse News Service, reported that "Life coaches" used a string of shell companies to run a Ponzi scam that raked in $8 million to $20 million, investors claim in a class action in Austin, Texas. Named plaintiffs Cheri Lucas and April Fisher sued Coaching by Coral LLC dba The Secret to Life Coaching and three of its affiliates or shells; their CEOs Coral Rose Grant fka Coral Rose Thomas and Gary McGonagle Grant II aka Mac Grant; and their associate Heather Suzanne Perdue, in Travis County Court. The defendant companies include The Release LLC, Infinity Manifestation LLC, and Superdue Inc., all of Colorado. Lucas and Fisher seek to represent a class of "all persons who have entered into 'coaching contracts' or 'investor contracts' with any of the defendants." The Secret to Life Coaching says on its website that its mission is to "help people design and live the life of their dreams." CEO and founder Coral Grant says on the website that she "learned the secrets to be able to live every day on purpose and manifest her absolute dream life in every way." She uses coaching, a TV and radio show, articles, speaking engagements, and writing to teach people these secrets. Actually, Lucas says in the complaint: "Coral's fraudulent tendencies did not come to her fully formed from the ether. She learned at the feet of her mentor, Kevin Trudeau - a career fraudster and federal felon. On information and belief, Coral has visited Trudeau in federal prison to consult with him about her scheme. Coral's criminal activities seem to have been too much even for Trudeau, since plaintiffs have been informed that Trudeau told her to stop. "In fact, Coral is so close to Kevin Trudeau that she has raised tens of thousands of dollars for the 'KT Legal Defense Fund.' 'KT' stands for Kevin Trudeau." (Trudeau made a fortune through so-called "infomercials" and books promoting "cures" that "they don't want you to know about." According to publicly available information, he has been convicted of larceny and credit card fraud, was fined $37 million by the FTC for violating a settlement order, and is serving 10 years in federal prison for contempt of court.) Mac Grant, Coral Grant's husband, is an instructor for the Men's Leadership Training Courses in The Secret to Life Coaching Company. He calls himself a successful entrepreneur, motivational speaker and master coach. According to the Jan. 18 lawsuit, Coral Grant has been using her companies since 2010 to sign up independent coaches under commission agreements, i.e. "coaching contracts." The coaches are promised a commission percentage or fee for each life coaching client signed up, for signing up other coaches, and for teaching life coaching clients. The Grants also invited people (coaches, members, clients) to become "investors," i.e. give them flat sums in exchange for non- specific future returns, according to the complaint. But Lucas claims the Grants "engaged in a pattern of pocketing investors' money instead of using it for any legitimate business purposes," and also took the commissions and fees owed to the coaches under their contracts. In brief, the complaint states: "Coral and Mac Grant are a threat to the public. They funnel all coach and investor money directly to themselves, without any regard for legality, corporate formalities, securities laws, or any semblance of business judgment or morality. In total, the Grants have stolen over $8,000,000 -- and possibly more than $20,000,000 -- in money and services from their coaches and investors through their scheme. Lucas claims the defendants owe her at least $180,000. Fisher says they owe her at least $5,000. "The Grants live a lavish lifestyle with their ill-gotten gains," the complaint states. "They lease multiple mansions around the United States, fly around the country in chartered private jets, and lease or own luxury vehicles (Bentleys, for example). Put simply, Coral and Mac Grant arc con artists living high on the hog with the millions they have stolen from their unsuspecting contractors and investors." The Grants also violate federal laws by not registering securities offerings for their companies, by not filing Form Ds for the offerings, and by filing fraudulent or incomplete tax returns to cover up their illegal income, according to the complaint. They continually recruit new coaches, clients, and investors to make up for the money they take out of the companies, and use new cash flow to falsely represent that their companies are successful, profitable, and sustainable, the complaint states. When Coaching by Coral had trouble obtaining credit due to the Grants' pilfering of company funds, Coral emailed the coaches and said that she had to cancel their contracts due to "recent events," according to the complaint. Some investors and coaches were told to make payments to Infinity Manifestation, a shell company controlled by Heather Perdue, while others were directed to The Release, which is Coral's newest entity, the plaintiffs say. The complaint calls Perdue a "high-level employee in the Grants' criminal enterprise" who at one point ran the day-to-day operations of Coaching by Coral. The email about Infinity Manifestation "makes plain that this arrangement is a continuation of the Grants' Ponzi scheme," the complaint states. It continues: "Will the 'investors' be entitled to any of the profits in the new shell to which their investment contracts were unilaterally transferred? The Grants' answer to their victims, from the keyboard of their puppet Heather: 'No, the shareholder arrangements that were to provide a percentage of profits made by TSTLC [Coaching by Coral] were not valid, and TSTLC is unable to make any income due to the financial situation that occurred.' The 'financial situation that occurred,' of course, is that Coral and Mac Grant pocketed their investors' money to live like royalty." In that email, Lucas says, Perdue had the brass to tell the victims: "Hopefully you followed the first rule of investing and didn't spend money you couldn't afford to lose." Attempts to reach the defendants for comment through email addresses listed on the companies' websites were met with an auto- reply saying The Secret to Life Coaching Company has been dissolved and that Coral and Mac Grant are continuing their training through Infinity Manifestation. Lucas and Fisher seek class certification and at least $10 million in actual and statutory damages for fraud, theft, racketeering, breach of contract, breach of fiduciary duties, gross negligence and deceptive trade, plus $20 million in punitive damages and $250,000 in attorney's fees. They are represented by Camden Chancellor in Odessa and Arnaldo Pereira in Austin. COGENT COMMUNICATIONS: Court Grants Conditional Certification ------------------------------------------------------------- District Judge Richard Seeborg of the United States District Court for the Northern District of California granted Plaintiff's motion for conditional certification for notification purposes and dismissal of individual plaintiffs Jane LaCap, Tony Trinh and Bill Chan in the case captioned, JOAN AMBROSIA, et al., Plaintiffs, v. COGENT COMMUNICATIONS, INC., Defendant, Case No. 14-CV-02182-RS (N.D. Cal.). In the putative class and collective action, Plaintiff Joan Ambrosio, alongside a host of other salaried employees of defendant Cogent Communications, Inc., seeks damages and other relief based on Cogent's alleged failure to pay overtime in violation of California and federal law. The putative class consists of all current and former California-based account managers who were classified as exempt and worked for Cogent between May 12, 2010 and the date of final judgment. Plaintiffs moved to certify three state law claims for failure to pay overtime, failure to pay wages due and owing, and violation of California's unfair competition law. The putative class consists of "all persons who were, are, or will be employed by Cogent throughout California from May 12, 2010 through the date of final judgment as Regional Account Managers, National Account Managers or Global Account Managers and were classified by Cogent as exempt from overtime compensation." In his Order dated January 4, 2016 available at http://is.gd/KreFTyfrom Leagle.com, Judge Seeborg found that the proposed class has meet the requirements pursuant to Rule 23(b) and dismissed Plaintiffs LaCap, Trinh, and Chan from the action because they failed to communicate with their counsel, appear for noticed depositions, or otherwise participate in the litigation. The parties are directed to meet and confer regarding the contents of a joint notice, and on or before twenty-one (21) days from the date of the order and submit a proposal to the Court. The Court scheduled a Case Management Conference shall be held on February 4, 2016, at 10:00 a.m. Plaintiffs are represented by Thomas E. Duckworth, Esq. -- tom@dplolaw.com -- Mark Christopher Peters, Esq. -- mark@dplolaw.com -- Monique Olivier, Esq. -- Monique@dplolaw.com - - DUCKWORTH PETERS LEBOWITZ OLIVIER LLP - and - Michael Todd Slobin, Esq. SHELLIST LAZARZ SLOBIN LLP 1900 West Loop S Suite 1910 Houston, TX 77027 Tel: (713)621-2277 Cogent Communications, Inc. is represented by Tamara Irene Devitt, Esq. -- tamara.devitt@hayesboone.com -- Matthew E. Costello, Esq. -- matthew.costello@haynesboone.com -- Meghaan Cecilia McElroy, Esq. -- meghaan.mcelroy@haynesboone.com -- HAYNES AND BOONE, LLP COSTCO WHOLESALE: Court Tosses Suit over Slave Labor ---------------------------------------------------- Nicholas Iovino, writing for Courthouse News Services, that a federal judge in San Francisco on Jan. 15, dismissed with leave to amend a class action accusing Costco of selling shrimp harvested with slave labor in Thailand. Lead plaintiff Monica Sud sued Costco in August, claiming the retail giant falsely advertised a policy that prohibits human rights abuses in its supply chain. U.S. District Judge Jeffery White granted Costco's motion to dismiss the suit for lack of jurisdiction after the retailer submitted evidence showing the plaintiffs never purchased prawns sourced from Thailand. Although Sud has a receipt proving she purchased prawns in March 2015, Costco's records show she never used her member card to buy farmed prawns. Another class member did purchase farmed prawns but those were imported from Vietnam and Indonesia, not Thailand, according to the ruling. "Based on this record, the court concludes that Sud has not put forth sufficient evidence to overcome Costco's factual challenge to Article III standing," White wrote in his 6-page ruling. However, the judge granted the plaintiffs leave to amend their complaint, finding the class could allege that prawns from other nations -- like Indonesia and Vietnam -- are harvested with slave labor. The judge said the plaintiffs could also add new class members who did purchase prawns sourced from Thailand to overcome the challenge of standing. The plaintiffs must submit an amended complaint by Feb. 19. Sud is represented by Anne Murphy -- amurphy@cpmlegal.com -- of Cotchett, Pitre & McCarthy of Burlingame, Calif. Costco is represented by Robert Mittelstaedt -- ramittelstaedt@jonesday.com -- of Jones Day in San Francisco. The case captioned, MONICA SUD, Plaintiff, v. COSTCO WHOLESALE CORPORATION, Defendants. Case No. 15-cv-03783-JSW (N.D. Cal.) CREDENCE RESOURCE: Illegally Collects Debt, "Damstra" Suit Claims ----------------------------------------------------------------- Mark Damstra, on behalf of himself and all others similarly situated v. Credence Resource Management LLC and John Does 1-25, Case No. 2:15-cv-08434 (D.N.J., December 3, 2015) seeks to stop the Defendant's unfair and unconscionable means to collect a debt. Credence Resource Management LLC operates a financial service company located at 6045 Atlantic Blvd, Norcross, GA 30071. The Plaintiff is represented by: Glen H. Chulsky, Esq. Joseph K. Jones, Esq. LAW OFFICES OF JOSEPH K. JONES, LLC 375 Passaic Avenue Fairfield, NJ 07004 Telephone: (973) 227-5900 E-mail: g.chulsky@att.net jkj@legaljones.com CUSTOM COOKIES: "Yupangui" Suit Seeks to Recover Unpaid OT Wages ---------------------------------------------------------------- Angelica Guaman Yupangui and Erica Usher-Savage, on behalf of themselves, FLSA Collective Plaintiffs and the Class v. Custom Cookies, Inc., Case No. cv157127 (E.D.N.Y., December 15, 2015) seeks to recover unpaid overtime wages and damages pursuant to the Fair Labor Standard Act. Custom Cookies, Inc. operates a custom cookies and cupcakes shop in Brooklyn, NY. The Plaintiff is represented by: Anne Melissa Seelig, Esq. C.K. Lee, Esq. LEE LITIGATION GROUP, PLLC 30 East 39th Street, 2nd Floor New York, NY 10016 Telephone: (212) 465-1124 Facsimile: (212) 465-1181 E-mail: anne@leelitigation.com cklee@leelitigation.com CVS HEALTH: Sued Over Acetaminophen & Ibuprofen Product Packaging ----------------------------------------------------------------- Mariel Marte, Josefina Valdez, Lauren Feldman and John Does 1-100, on behalf of themselves and others similarly situated v. CVS Health Corporation (formerly CVS Caremark Corporation) and CVS Pharmacy, Inc., Case No. 1:15-cv-09431-JPO (S.D.N.Y., December 20, 2015) arises out of the Defendants' alleged business practices with respect to the packaging of their CVS(R) acetaminophen and ibuprofen products, specifically by marketing and selling the products in containers made, formed or filled as to be misleading and with non-functional slack-fill. The Defendants operate a retailer and health care company and operate over 7,700 stores, a pharmacy benefit manager, mail order and specialty pharmacies, a retail-based health clinic subsidiary, MinuteClinic(R); and an online pharmacy, CVS.com. The Plaintiff is represented by: Anne Melissa Seelig, Esq. C.K. Lee, Esq. LEE LITIGATION GROUP, PLLC 30 East 39th Street, 2nd Floor New York, NY 10016 Telephone: (212) 465-1124 Facsimile: (212) 465-1181 E-mail: anne@leelitigation.com cklee@leelitigation.com D.C. METRO: Class Suit Filed over Subway Smoke ---------------------------------------------- Tim Ryan, writing for Courthouse News Services, reported that scores of subway riders whose train was engulfed by smoke outside a Washington D.C. metro station last year claim in court that lapses by the transit authority placed their lives at risk and left them to deal with unknown health consequences. In a series of lawsuits filed in the District of Columbia Superior Court, 93 subway riders claim the Washington Metropolitan Area Transit Authority did not properly inspect the electrical connections to the third rail that powers the cars, and did not maintain the required signal boosters in the system's tunnels, delaying emergency personnel from reaching the trapped passengers. As a result, the plaintiffs say, some improperly constructed parts of the rail went unnoticed, allowing electrical current to jump from its power cable to the train tunnel's steel wall, spewing thick smoke into the train's path. One person died in the incident, according to the complaints, which were filed on Jan. 12. Most of the plaintiffs in the 93 cases were riding in two cars of a subway train that had just left L 'Enfant Plaza Metro station, a major hub for Washington's subway system, when it ran into "dense" smoke in the train tunnel. The train stopped as its cars filled with smoke, the complaints say. But the passengers' nightmare didn't end there. It took roughly 45 minutes after the time the train stopped in thick smoke before its doors opened and passengers were allowed to evacuate. The plaintiffs contend this occurred because a poor signal availability in the tunnel prevented first responders from confirming with the transit authority the third rail was not running a current. That left the passengers breathing smoke, the contents of which they don't know to this day, according to Kim Brooks-Rodney -- kbr@cohenandcohen.net -- an attorney with Washington law firm Cohen & Cohen, who represents the Metro riders. Brooks-Rodney said her firm obtained consent from 93 of 103 potential plaintiffs in these cases, a mixture of people who were on the train and people waiting on the platform. She expects the remaining 10 riders to sign on soon. The cases are likely to be grouped together, but do not qualify for a class action, Brooks-Rodney said. "They have a wealth of different concerns," Brooks-Rodney said. "For example, we have one client who was in the first trimester of pregnancy, so she had a great deal of angst and concern until the child was delivered." She expects the transit authority, a "quasi-federal" organization to move the cases into federal court, where one judge will consolidate them and set a master discovery schedule. Brooks-Rodney said her team made settlement overtures to the transit authority, but Metro's response fell short of expectations. "It was obvious Metro does not evaluate these cases the way we evaluate them because the offers were quite minimal," Brooks- Rodney said. The transit authority declined comment on the pending cases, citing organizational policy. DAVITA HEALTHCARE: Wage & Hour Suit Resolved for Immaterial Sum --------------------------------------------------------------- Davita Healthcare Partners Inc. has reached a deal to settle the remaining claims in a wage and hour class action in California, 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 wage and hour claim, which has been styled as a class action, is pending against the Company in the Superior Court of California. The Company was served with the complaint in this lawsuit in April 2008, and it has been amended since that time. The complaint, as amended, alleges that the Company failed to provide meal periods, failed to pay compensation in lieu of providing rest or meal periods, failed to pay overtime, and failed to comply with certain other California Labor Code requirements. In September 2011, the court denied the plaintiffs' motion for class certification. Plaintiffs appealed that decision. In January 2013, the Court of Appeals affirmed the trial court's decision on some claims, but remanded the case to the trial court for clarification of its decision on one of the claims. The Company reached an agreement with the plaintiffs to settle the claim that was remanded to the trial court, and that settlement has been finalized. The amount of the settlement is not material to the Company's condensed consolidated financial statements. In June 2015, the Company reached an agreement in principle to resolve the remainder of the claims in this litigation. The settlement must be approved by the court, and the parties are in the process of seeking that approval. The amount of the settlement is not material to the Company's condensed consolidated financial statements. DELMART MANAGEMENT: "Lemus" Suit Seeks to Recover Unpaid OT ----------------------------------------------------------- Esmeralda Lemus, Ana Cristina Alas, Lester Hernandez, Maricela Soto, Martha Angelica Gutierrez, Galina Racu, Lorena Tristan, Angelica Jimenez, Juan Perez Calgua, Nora Ramirez, Sugey Yamileth Acero, Ana Rodriguez, and all others similarly situated v. Delmart Management, Inc. dba Pollos Asados La Fonda and dba Taqueria La Fonda., Francisco Javier De Leon And Margarita Martinez De Leon, Case No. 4:15-cv-03599 (S.D. Tex., December 10, 2015), seek to recover unpaid overtime compensation, liquidated damages and attorney's fees under the Fair Labor Standards Act of 1938. The Defendants own and operate restaurants in Texas. The Plaintiff is represented by: Josef F. Buenker, Esq. 2030 North Loop West, Ste. 120 Houston, TX 77018 Tel: (713) 868-3388 Fax: (713) 683-9940 DIAGEO-GUINNESS: Falsely Marketed Extra Stout Products, Suit Says ----------------------------------------------------------------- Kieran O'Hara, on behalf of himself and all other similarly situated individuals v. Diageo-Guinness, USA, Inc. & Diageo North America, Inc., Case No. 1:15-cv-14139 (D. Mass., December 15, 2015) alleges that the Defendants market, advertise, package and sell its Guinness(R) product, Guinness(R) Extra Stout, in a manner which unfairly and deceptively misleads consumers into believing that all of the Extra Stout sold in the United States is brewed, sourced, bottled and imported from Dublin, Ireland, when in fact certain the Extra Stout sold in the United States is brewed and imported from Canada. The Defendants operate an alcoholic beverages company that produces of spirits, beer and wine. The Plaintiff is represented by: Kevin J. McCullough, Esq. FORREST, LAMOTHE, MAZOW, MCCULLOUGH, YASI & YASI, P.C. 2 Salem Green, Suite 2 Salem, MA 01970 Telephone: (617) 231-7829 E-mail: kmccullough@forrestlamothe.com DIVERSICARE HEALTHCARE: Professional Liability Suits Still Open --------------------------------------------------------------- Diversicare Healthcare Services, 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 some of the professional liability lawsuits remain pending in Arkansas state courts and relate to claims arising prior to the cessation of the Company's operations in that state on September 1, 2013. On June 4, 2015, the Supreme Court of Arkansas issued a ruling in a lawsuit against another provider that may impact the pending and any future lawsuits filed against us in Arkansas. The Arkansas Supreme Court ruled that a lawsuit against several facilities formerly operated by Golden Living could proceed as a class action. The class certified by the Court includes all residents of defendants' facilities over a several year period, and the class is certified for a determination of whether the defendants' facilities were chronically understaffed and, if so, whether this understaffing violated the residents' admissions agreements and constituted a violation of the Arkansas Deceptive Trade Practices Act. According to the opinion, if plaintiffs prevail on either legal theory, then each member of the class will be entitled to a hearing to determine the amount of damages sustained as a result of the breach or violation. This decision could impact a purported class action complaint filed against the Company in 2009 that is still pending in the Circuit Court of Garland County, Arkansas, in which the plaintiff asserts similar claims against a single facility formerly operated by the Company. This lawsuit remains in its early stages and has not yet been certified by the court as a class action. "The Company currently intends to defend this lawsuit and any other similar ones vigorously, but this action could be expensive to defend, and a negative outcome could have a material adverse impact on our financial position and cash flows," the Company said. DYNAMIC SPORTS: Court Denies Bid for Two-Part Discovery ------------------------------------------------------- Magistrate Judge Thomas B. Smith of the United States District Court for the Middle District of Florida denied Dynamic Sports Nutrition's motion for preliminary pre-trial conference and two- phase discovery in the case captioned, MATTHEW TIGER, Plaintiff, v. DYNAMIC SPORTS NUTRITION, LLC and PBB TRADEMARK HOLDINGS, LLC, Defendants, Case No. 6:15 CV 1701 Orl 41TBS (M.D. Fla.). Plaintiff alleges that Defendants manufacture dietary and nutritional supplements which they market and sell as powerful, legal steroids designed to add mass while at the same time, making the user leaner and stronger. Plaintiff alleges that Defendants' claims and the manner in which they package, label, and advertise their products are deceptive, misleading, and false. Count one of the complaint is a putative class action on behalf of Plaintiff and all other Floridians who have fallen victim to what Plaintiff asserts are Defendants' violations of the Florida Deceptive and Unfair Trade Practices Act. Count Two is a putative class action for unjust enrichment brought on behalf of all non- Floridians located in this country, who have been victims of Defendants' actions. In the motion, Defendant moved for Two-Phase Discovery and a Preliminary Pre-Trial Conference arguing that two-phase discovery will best serve the interests of fairness and efficiency because class certification is typically a key and often conclusive step in class action litigation. Dynamic requests a preliminary pre- trial conference if the Court deems it necessary to decide the motion. In his Order dated December 28, 2015, 2015 available at http://is.gd/ZLIdsdfrom Leagle.com, Judge Smith found that the parties have also not provided the Court with sufficient information to make an informed decision concerning how difficult it would be to establish a bright line between class certification and merits discovery. The Court is not persuaded that phased discovery will conserve the resources of the parties or the Court. This is because the line between `class issues' and `merits issues' is practically difficult, if not impossible, to determine. Matthew Tiger is represented by: Robert Leslie Vessel, Esq. Shyam N.S. Dixit, Jr., Esq. DIXIT LAW FIRM, PA 3030 N Rocky Point Dr W #260, Tampa, FL 33607 Tel: (813)252-3999 Defendants are represented by Frank Mari, Esq. -- FMari@bellroperlaw.com -- Michael J. Roper, Esq. -- MRoper@bellroperlaw.com -- BELL & ROPER, PA, Greg Koush, Esq. -- gkoush@hicks-thomas.com -- Stewart Hoffer, Esq. -- shoffer@hicks-thomas.com -- HICKS THOMAS, LLP ECOLAB INC: "Cancilla" Settlement Wins Final Approval ----------------------------------------------------- District Judge James Donato of the United States District Court for the Northern District of California ruled on Plaintiffs' motion for final settlement approval and certification of a settlement class; and for payment of attorneys' fees and costs, and class service awards in the case captioned, NICK CANCILLA, et al., Plaintiffs, v. ECOLAB, INC., Defendant, Case No. 12-CV-03001- JD (N.D. Cal.). The plaintiffs are current and former Service Specialists, Select Segment Service Specialists and Senior Service Specialists in Ecolab's Pest Elimination Division. Plaintiffs allege that Ecolab misclassified them as exempt from the Fair Labor Standards Act, and consequently "failed to pay them overtime at a rate not less than one and one-half times their regular rate of pay for all hours worked over 40 hours in a workweek." The named plaintiffs also allege various state law violations relating to Ecolab's compensation practices. The Court previously granted preliminary approval of a proposed class action settlement. The parties entered into a settlement agreement after mediation in May 2015. That settlement agreement is the operative agreement in the case. The Court granted preliminary approval on August 12, 2015, finding that the agreement was "fair, reasonable, and adequate" under Federal Rule of Civil Procedure 23(e). The proposed class consists of 1,053 individuals, including 580 Service Specialists who opted in to the previously certified FLSA collective action class and 473 additional putative class members that are Service Specialists in eight state settlement classes. Pending before the Court are plaintiffs' unopposed motions for: (1) final settlement approval and certification of a settlement class, (2) attorneys' fees and costs, and (3) class representative service awards. In his Order dated January 5, 2016 available at http://is.gd/4I89Ogfrom Leagle.com, Judge Donato found that the proposed FLSA settlement constituted a "fair and reasonable" resolution "of a bona fide dispute," and approved it. He confirmed final appointment of David Beausoleil, Lucio Flores, Robert Birch, Thomas Jennison, Michael Emanuel, Kenneth Forbes, Frederick Simon, Brian O'Neil and Patrick Sweeney as the class representatives of the respective state classes under Rule 23. The Court also found that the requests for attorneys' fees and costs were adequately- supported and reasonable and awarded $1,875,000 in attorneys' fees and $135,601.83 in costs. The incentive payment was granted only in part because the Court had serious doubts about the propriety of incentive payments did not amount to an inflexible rule and approved service awards of $500 to each of the nine named plaintiffs. Plaintiffs are represented by James M. Finberg, Esq. -- jfinberg@altshulerberzon.com -- Connie K. Chan, Esq. -- cchan@altshulerberzon.com -- ALTSHULER BERZON LLP - and - John T. Mullan, Esq. RUDY EXELROD ZIEFF 351 California Street, Suite 700 San Francisco, CA 94104 Tel: (415)906-2647 Ecolab, Inc. is represented by Jody Ann Landry, Esq. -- jlandry@littler.com -- Lindsey Marie Stevens, Esq. -- lstevens@littelr.com -- Alan Sam Levins, Esq. -- alevins@littler.com -- Andrew J. Voss, Esq. -- avoss@littler.com - - Dawn Sarah Telthorst Fonseca, Esq. -- dfonseca@littler.com -- Shirley O. Lerner, Esq. -- slerner@littler.com -- LITTLER MENDELSON EL POLLO: Defending Calif. Class Action Filed by Former Employee ---------------------------------------------------------------- El Pollo Loco Holdings, Inc., said it is vigorously defending a class action lawsuit filed by a former employee, the Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2015, for the quarterly period ended September 30, 2015. On or about February 24, 2014, a former employee filed a class action in the Superior Court of the State of California, County of Orange, against EPL on behalf of all putative class members (all hourly employees from 2010 to the present) alleging certain violations of California labor laws, including failure to pay overtime compensation, failure to provide meal periods and rest breaks, and failure to provide itemized wage statements. The putative lead plaintiff's requested remedies include compensatory and punitive damages, injunctive relief, disgorgement of profits, and reasonable attorneys' fees and costs. No specific amount of damages sought was specified in the complaint. While the Company is vigorously defending against this action, including its class certification, the ultimate outcome of the case is presently not determinable as it is in a preliminary phase. Thus, the Company cannot at this time determine the likelihood of an adverse judgment nor a likely range of damages in the event of an adverse judgment. Any settlement of, or judgment with a negative outcome arising from, this lawsuit could have a material adverse effect. EL POLLO: Defending "Turocy" and "Huston" Securities Fraud Cases ---------------------------------------------------------------- El Pollo Loco Holdings, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2015, for the quarterly period ended September 30, 2015, that the defendants intend to vigorously defend against the claims asserted in the cases, Daniel Turocy, et al. v. El Pollo Loco Holdings, Inc., et al. (Case No. 8:15-cv-01343) filed in the United States District Court for the Central District of California on August 24, 2015, and Ron Huston, et al. v. El Pollo Loco Holdings, Inc., et al. (Case No. 8:15-cv-01710) filed in the United States District Court for the Central District of California on October 22, 2015. Plaintiff Daniel Turocy, on behalf of himself and others similarly situated, and Plaintiff Ron Huston, on behalf of himself and others similarly situated, each filed separate putative class action complaints, alleging violations of federal securities laws in connection with Holdings common stock purchased or otherwise acquired and, in the Ron Huston case, the purchase of call options or the sale of put options, between May 1, 2015 and August 13, 2015 (the "Class Period"). In both cases, the named defendants are Holdings; Stephen J. Sather, Laurance Roberts, and Edward J. Valle (collectively, the "Individual Defendants"); and Trimaran Pollo Partners, L.L.C., Trimaran Capital Partners, and Freeman Spogli & Co. (collectively, the "Controlling Shareholder Defendants"). Among other things, Plaintiffs allege that, in 2014 and early 2015, Holdings suffered losses due to rising labor costs in California and, in an attempt to mitigate the effects of such rising costs, removed a $5 value option from our menu, which resulted in a decrease in value-conscious store traffic. Plaintiffs further allege that during the Class Period, Holdings and the Individual Defendants made a series of materially false and misleading statements that concealed the effect that these factors were having on store sales growth, resulting in Holdings' stock continuing to be traded at artificially inflated prices. As a result, Plaintiffs and other members of the putative class allegedly suffered damages in connection with their purchase of Holdings' stock during the Class Period. In addition, Plaintiffs allege that the Individual Defendants and Controlling Shareholder Defendants had direct involvement in, and responsibility over, the operations of Holdings, and are presumed to have had, among other things, the power to control or influence the transactions giving rise to the alleged securities law violations. In both cases, Plaintiffs seek an unspecified amount of damages, as well as costs and expenses (including attorneys' fees). EOS PRODUCTS: Faces Class Suit in C.D. Cal. over Lip Balm --------------------------------------------------------- Mike Heuer, writing for Courthouse News Services, that celebrity- endorsed EOS lip balm causes blistering, bleeding, skin-cracking and rashes and the company conceals it from consumers, a California woman claims in a federal class action in Los Angeles. Lead plaintiff Rachael Cronin sued New York-based EOS Products, accusing it of fraudulently concealing adverse side effects despite ample evidence from consumer complaints. EOS, an acronym for "evolution of smooth," advertises its lip balms with "celebrity brand ambassadors" such as Kim Kardashian, Britney Spears, Miley Cyrus, Hillary Duff, and others, Cronin says. "The advertisements and marketing by EOS emphasizes that the product is 'organic' and 'gluten-free,' aligning the product with popular dietary trends, despite the fact that the lip balm has no consumable value," Cronin says. And despite claims that the balms are organic, they contain sodium hyaluronate, ascorbyl palmitate, tocopherols, and butyrospermum parkii, which the FDA considers a "major allergen," according to the complaint. "Potentially in excess of hundreds of thousands of consumers," Cronin says, "have experienced devastating adverse reactions to the product, consisting of mild to severe rashes, dryness, bleeding, blistering, cracking and loss of pigmentation, lasting from a few days, to a few months, and some consumers with long lasting and perhaps permanent symptoms." EOS is aware of the "serious adverse side effects" of its lip balms, and has been "flooded" by consumer complaints, including on its Facebook page, Cronin says. Yet EOS does not provide any warnings on its product, website or marketing materials, and did not recall the lip balm or commission a study of the adverse effects, according to the complaint. Cronin bought EOS Summer Fruit lip balm on Dec. 4, 2015. Its packaging claims "EOS keeps your lips moist, soft and sensationally smooth" and had no warnings about side effects. Within hours of using the lip balm, Cronin says, her lips became dry and coarse, so she used more, which caused her lips to crack severely, flake and bleed, resulting in severe blistering and rashes that required medical care. Cronin says she was in "severe shock and pain," the symptoms lasted for 10 days, and she posted a photo on Facebook that showed her with boils and blisters on her face. She says the post "set off a frenzy of responses from other individuals who shared the identical experience with EOS," and it became clear that this is a "massive national health problem." Cronin seeks class certification, restitution, disgorgement, injunctive relief and compensatory and punitive damages for fraud, concealment, breach of warranty, unjust enrichment, consumer law violations and unfair business practices. She estimates the size of the class in the millions. EOS Products is the only named defendant and did not respond to an email request for comment Jan. 14. Cronin's attorney Mark Geragos could not be reached for comment by telephone Jan. 14 night. FACEBOOK INC: Approval of Settlement in Fraley et al. Suit Upheld ----------------------------------------------------------------- Circuit Judges W. Fletcher, Berzon and Bea of the Court of Appeals, Ninth Circuit affirmed district court's approval of a class action settlement and the court's award of attorney's fees in the case captioned, ANGEL FRALEY; PAUL WANG; JAMES H. DUVAL, a minor, by and through James Duval, as Guardian ad Litem; WILLIAM TAIT, a minor, by and through Russell Tait, as Guardian ad Litem; SUSAN MAINZER; LUCY FUNES; INSTRAGRAM, LLC, Plaintiffs-Appellees, C.M.D.; T.A.B.; H.E.W.; B.A.W.; A.D.Y.; R.P.Y., Intervenor- Plaintiffs-Appellees, v. JO BATMAN, Objector-Appellant, v. FACEBOOK, INC., Defendant-Appellee. ANGEL FRALEY; PAUL WANG; JAMES H. DUVAL, a minor, by and through James Duval, as Guardian ad Litem; WILLIAM TAIT, a minor, by and through Russell Tait, as Guardian ad Litem; SUSAN MAINZER; LUCY FUNES; INSTRAGRAM, LLC, Plaintiffs-Appellees, C.M.D.; T.A.B.; H.E.W.; B.A.W.; A.D.Y.; R.P.Y., Intervenor-Plaintiffs-Appellees, v. JOHN SCHACHTER, on behalf of himself and his minor son S.M.S.; KIM PARSONS, on behalf of herself and her minor daughter C.B.P; ANN LEONARD, on behalf of herself and her minor daughter D.Z.; R.P., through her mother Margaret Becker; J.C., through his father Michael Carome, Objectors-Appellants, v. FACEBOOK, INC., Defendant-Appellee. ANGEL FRALEY; PAUL WANG; JAMES H. DUVAL, a minor, by and through James Duval, as Guardian ad Litem; WILLIAM TAIT, a minor, by and through Russell Tait, as Guardian ad Litem; SUSAN MAINZER; LUCY FUNES; INSTRAGRAM, LLC, Plaintiffs-Appellees, C.M.D.; T.A.B.; H.E.W.; B.A.W.; A.D.Y.; R.P.Y., Intervenor-Plaintiffs-Appellees, v. WENDY LALLY; ALEC GREENHOUSE; JONATHAN BOBAK; ZACHARY COCHRAN, Objectors-Appellants, v. FACEBOOK, INC., Defendant-Appellee. ANGEL FRALEY; PAUL WANG; JAMES H. DUVAL, a minor, by and through James Duval, as Guardian ad Litem; WILLIAM TAIT, a minor, by and through Russell Tait, as Guardian ad Litem; SUSAN MAINZER; LUCY FUNES; INSTRAGRAM, LLC, Plaintiffs-Appellees, C.M.D.; T.A.B.; H.E.W.; B.A.W.; A.D.Y.; R.P.Y., Intervenor-Plaintiffs-Appellees, v. K.D.; C.D., through their father, Michael Depot, Objectors-Appellants, v. FACEBOOK, INC., Defendant-Appellee. ANGEL FRALEY; PAUL WANG; JAMES H. DUVAL, a minor, by and through James Duval, as Guardian ad Litem; WILLIAM TAIT, a minor, by and through Russell Tait, as Guardian ad Litem; SUSAN MAINZER; LUCY FUNES; INSTRAGRAM, LLC, Plaintiffs-Appellees, C.M.D.; T.A.B.; H.E.W.; B.A.W.; A.D.Y.; R.P.Y., Intervenor-Plaintiffs-Appellees, v. H.L.S., through her mother, Sheila L. Shane, Objector-Appellant, v. FACEBOOK, INC., Defendant-Appellee. ANGEL FRALEY; PAUL WANG; JAMES H. DUVAL, a minor, by and through James Duval, as Guardian ad Litem; WILLIAM TAIT, a minor, by and through Russell Tait, as Guardian ad Litem; SUSAN MAINZER; LUCY FUNES; INSTRAGRAM, LLC, Plaintiffs-Appellees, C.M.D.; T.A.B.; H.E.W.; B.A.W.; A.D.Y.; R.P.Y., Intervenor- Plaintiffs-Appellees, THOMAS LCOX, Jr.; TRACEY COX KLINGE; KATIE SIBLEY, Objectors-Appellants, v. FACEBOOK, INC., Defendant- Appellee. ANGEL FRALEY; PAUL WANG; JAMES H. DUVAL, a minor, by and through James Duval, as Guardian ad Litem; WILLIAM TAIT, a minor, by and through Russell Tait, as Guardian ad Litem; SUSAN MAINZER; LUCY FUNES; INSTRAGRAM, LLC, Plaintiffs-Appellees, C.M.D.; T.A.B.; H.E.W.; B.A.W.; A.D.Y.; R.P.Y., Intervenor-Plaintiffs-Appellees, SAM KAZMAN, Objector-Appellant, v. FACEBOOK, INC., Defendant- Appellee, Case Nos. 13-16819, 13-16919, 13-16936, 13-17028,14- 15595 (9th Cir.). In the putative class action, the district court approved a class action settlement which awarded $15 to each claiming class member, notwithstanding the possibility of a $750 statutory penalty finding that the monetary award of $15 was reasonable in light of the minimal (if any) harm suffered by the plaintiffs. The Court also found that there was no structural conflict of interest requiring the appointment of separate counsel for the minor subclass. On appeal, several objectors challenge the district court's approval of the settlement and the court's award of attorney's fees. Objector Kazman appeals the district court's decision to deny him attorney's fees and an incentive award. In the Memorandum dated January 6, 2016 available at http://is.gd/kMZ00sfrom Leagle.com, the Ninth Circuit found that the district court did not abuse its discretion in approving the settlement and award of attorney's fees and in denying Objector Kazman's motion for attorney's fees and an incentive award. Kazman was also not entitled to attorney's fees for arguing that class counsel's attorney's fees should be calculated as a percentage of net recovery because, as the district court found, the associated reasonable fee for preparing the argument was de minimis. FARMERS GROUP: Court Grants Conditional Certification in "Coates" ----------------------------------------------------------------- District Judge Lucy H. Koh of the United States District Court for the Northern District of California granted Plaintiff's motion for conditional collective action certification; and authorized notice to potential similarly situated class members in the case captioned, LYNNE COATES, Plaintiff, v. FARMERS GROUP, INC., et al., Defendants, Case No. 15-CV-01913-LHK (N.D. Cal.). Plaintiff Lynne Coates and opt-in plaintiffs Sandra Carter, Chiquita Hartman, Michele Morgan, Serena Neves, Keever Rhodes, Angela Storey, Stephanie Torigian, and Karen Wasson brought the instant putative class and collective action against Defendants Farmers Group, Inc., Farmers Insurance Exchange, and Farmers Insurance Company, Inc. for alleged violations of the Equal Pay Act, 29 U.S.C. Sec. 206(d), and other federal and state laws. The complaint alleges that Defendants paid the female attorneys in the Claims Litigation Department less than their male counterparts, even though the female attorneys performed the same or substantially equal work to the male attorneys in violations of the EPA and Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e, et seq., and violations of various California state laws. Coates seeks to represent a nationwide collective action class for the EPA claim; a nationwide class under Federal Rule of Civil Procedure 23 for the Title VII claim; and a California class for the California claims. On October 15, 2015, Coates filed the instant motion for conditional certification of the EPA collective action, which would permit court-authorized notice to be sent to potential opt- in plaintiffs. Coates seeks to certify a class of "Women employed by Farmers Group, Inc., Farmers Insurance Exchange, or Farmers Insurance Company, Inc. (Farmers) in Claims Litigation at any time since June 8, 2012 in one or more of the following positions: attorney, workers compensation attorney, associate trial attorney, trial attorney, senior trial attorney, senior workers compensation attorney, specialty trial attorney, supervising attorney, supervising workers compensation attorney, HEAT attorney, or managing attorney (the Class or Class Members). The Class excludes individuals working in Farmers Legal Business Administration (formerly known as Claims Legal Services Management). In her Order dated December 9, 2015 available at http://is.gd/A8U0wJfrom Leagle.com, Judge Koh concluded that Coates has a "reasonable basis" for her claim that female attorneys in the Claims Litigation Department are a class of persons similarly situated to Coates because the proposed class members may also have EPA claims predicated upon the same compensation and evaluation policies as Coates and that Coates has met the lenient notice-stage standard for conditional certification. If, after the close of discovery, it becomes apparent that the EPA claims should be pursued on an individual basis, Defendants may move to decertify the class. The Court approved the requested 90 day opt-in period finding Coates's proposed Notice clearly and neutrally communicates to potential class members the rights at stake in the litigation and their statutory opt-in right. Lynne Coates is represented by: Jennie Lee Anderson, Esq. Lori Erin Andrus, Esq. ANDRUS ANDERSON LLP 155 Montgomery St #900, San Francisco, CA 94104 Tel: (415)986-1400 - and - Lori J. Costanzo, Esq. COSTANZO LAW FIRM 111 N Market St #910, San Jose, CA 95113 Tel: (408)993-8493 Defendants are represented by Nancy L. Abell, Esq. -- nancyabell@paulhastings.com -- Heather Ann Morgan, Esq. -- heathermorgan@paulhastings.com -- Meg Kochuba, Esq. -- megkochuba@paulhastings.com -- Neal D. Mollen, Esq. -- nealmollen@paulhastings.com -- Valerie Margaret Marek, Esq. -- valmarek@paulhastings.com -- PAUL HASTINGS LLP FIA CARD: "Olmos" Suit Alleges TCPA Violation --------------------------------------------- Tatiana Olmos, and all others similarly situated v. FIA Card Services, N.A., Case No. 3:15-cv-02786 (S.D. Tex., December 10, 2015), seeks injunction stopping Defendant from sending unsolicited text messages, and an award of statutory damages under the Telephone Consumer Protection Act. FIA, a consumer credit subsidiary of Bank of America, N.A., operates over 40 million credit card accounts with over $140 billion worth of outstanding balances. The Plaintiff is represented by: Daniel G. Shay, Esq. LAW OFFICE OF DANIEL G. SHAY 409 Camino Del Rio South, Ste 101B San Diego, CA 92108 Tel: (619) 222-7429 Fax: (866) 431-3292 E-mail: danielshay@tcpafdcpa.com FIALOVA INC: Faces "Williams" Suit for Labor Code Violations -------------------------------------------------------------- Robyn Williams, on behalf of herself and in a representative capacity, v. FIALOVA, Inc., a California corporation; Courtney Baum, an individual; and DOES 1-20, Inclusive, Case no. 30-2015- 00823996-CU-MT-CXC (Cal. Super., County of Orange, December 8, 2015) was filed on behalf of all other persons who worked as Family Concierges pursuant to the Private Attorneys General Act of 2004, and California Labor Code. The Plaintiff is represented by: James B. Hardin, Esq, Ward J. Lott, Esq. HARDIN & ASSOCIATES, APC 4100 Newport Place, Suite 800 Newport Beach, CA 92660 Phone: (949) 337-4810 Fax: (949) 706-6469 E-mail: jhardin@hardinemploymentlaw.com wlott@hardinemploymentlaw.com FLOTEK INDUSTRIES: Inflated Share Price, Class Suit Alleges ----------------------------------------------------------- Cameron Langford, writing for Courthouse News Service, reported that Flotek Industries directors sold $12.7 million in company stock before news broke that they inflated the share price with false data about its oil drilling fluids, a shareholder claims in Houston, Texas. Houston-based Flotek makes chemical products that are used for mining, cleaning products, cosmetics and food and beverages, including a line of citrus fruit-based fluids that it touts as oil and gas well production boosters. To prove how potent its drilling fluids are, Flotek launched a "FracMax" mobile application in May 2014, lead plaintiff Scott Chinitz says in a Jan. 19 federal class action lawsuit. The app is supposed to use oil well production data before and after the introduction of Flotek's fluids to show the benefits of using them, the complaint states. The company gave investors concrete evidence during a Sept. 11, 2015, presentation, in which it showed the fluids' benefits for four Texas oil wells, using data from the Texas Railroad Commission, the agency that regulates oil and gas, according to the lawsuit. But two months later, the Australian analyst firm Bronte Capital called out Flotek in a report that stated the data the company showed didn't match the Texas Railroad Commission's numbers, and a version of FracMax bought from Apple iTunes didn't work. "On this news, shares of Flotek fell $3.50 per share or over 19 percent to close at $14.60 per share on Nov. 9, 2015," the complaint states. Flotek immediately went into damage-control mode. The day after Bronte Capital issued its report, Flotek CEO John Chisholm admitted in a press release that his well production figures were off in the investor presentation. "We appreciate the thorough analysis provided in the report and are using this critique as well as others to improve our FracMax application to ensure both the validity and reliability of the underlying data," Chisholm said in a statement. But at the same time, Chisholm defended Flotek's fluids, stating they "improved productivity when compared to the neighboring wells that did not use" them. Flotek further stated that its FracMax application is for the internal use of its employees only, and a version that drilling companies could use was forthcoming. "A key code as well as other security requirements are necessary to obtain a working copy of the FracMax(R) application. This has been a consistent policy since FracMax(R) was introduced in 2014," the Nov. 10, 2015, press release states. Chinitz claims in the lawsuit that Chisholm and other Flotek directors propped up the share price in 2014 and 2015 with public statements about the citrus drilling fluids and FracMax app, while privately they had their doubts. They expressed these reservations in no uncertain terms by selling 1.2 million company shares for $12.7 million from May 2014 to October 2015, according to the complaint. As Chinitz notes, it's illegal for company directors to sell stock based on non-public information. Chinitz says the recipient of the biggest windfall was Flotek board member Carla Hardy, who sold 5.1 million shares for $7.6 million in the months before the Bronte Capital report, and Flotek's deference to it, dropped the share price by more than $9 to close at $9.04 on Nov. 10, 2015. Hardy was the only director who made more than Chisholm. He sold 888,668 shares for $4.4 million before the news broke, according to the complaint. The Bronte Capital report enraged Flotek investors, who have filed five federal class actions against the company's directors in Houston, including the latest from Chinitz. That's in addition to two class actions brought in Harris County Court this year. Flotek's stock price was trading at $5.86 on Jan.20. The price has likely not yet bottomed out because the company announced Jan.19, that the U.S. Securities and Exchange Commission has launched an investigation related to the FracMax software and the proprietary drilling fluids. Chinitz seeks damages for breach of fiduciary duty and unjust enrichment. He also wants the directors who allegedly profited from insider trading to disgorge those proceeds. He is represented by John McFarland -- jmcfarland@jmlawyers.com -- with Joyce & McFarland in Houston. A Flotek employee said the company will not make anyone available to answer questions about the lawsuit before brusquely hanging up the phone on Jan. 20. FORD MOTOR: 9th Cir. Revives Claims in "Daniel" Class Suit ---------------------------------------------------------- Senior District Judge Donald Molloy, ruling for the U.S. Court of Appeal for the Ninth Circuit, reversed a summary judgment ruling in favor of Ford Motor Co. in the appeal captioned, MARGIE DANIEL; MARY HAUSER; DONNA GLASS; ANDREA DUARTE, individually and on behalf of a class of similarly situated individuals, Plaintiffs- Appellants, v. FORD MOTOR COMPANY, a Delaware corporation, Defendant-Appellee, No.: 13-16476, (9th Cir.) The plaintiffs, Margie Daniel, Mary Hauser, Donna Glass, and Andrea Duarte, brought this class action against Ford, alleging that Ford breached implied and express warranties and committed fraud in the sale of model year 2005 to 2011 Ford Focus vehicles containing rear suspension defects. Plaintiffs purchased their Ford Focus vehicles from authorized Ford dealerships in California. With each purchase, Plaintiffs received a New Vehicle Limited Warranty. Prior to purchase, they did not research the Focus or view brochures, websites, or advertisements about the Focus. Nor did they read the warranty, maintenance, or owner's guides that came with the new vehicles prior to purchasing them. However, Plaintiffs did speak to authorized Ford dealership sales representatives about the Focus when they made their purchases. After purchase, Plaintiffs' Focuses required new rear tires for the first time between 12,086 and 20,723 miles. Plaintiffs allege that the Focus has a rear suspension "alignment/geometry" defect that leads to premature tire wear, which in turn leads to safety hazards such as decreased control in handling, steering, stability, and braking, the threat of catastrophic tire failure, and drifting while driving on wet or snow-covered roads. Ford allegedly knew or should have known about the defect through pre-release testing data, consumer complaints to Ford dealerships, testing conducted in response to those complaints, aggregate data from Ford's dealerships, and from other internal sources. Plaintiffs allege Ford had a duty to disclose the defect but failed to do so at the time of sale. Plaintiffs further allege that, had they known about the defect, they would not have purchased the Focus. Plaintiffs instituted this putative class action against Ford alleging five claims: (1) violation of California's Consumers Legal Remedies Act, Cal Civ. Code Sections 1750-1784; (2) violation of California's Unfair Competition Law, Cal. Bus. & Prof. Code Sections 17200-17210; (3) breach of implied warranty under California's Song-Beverly Consumer Warranty Act, Cal. Civ. Code Sections 1790-1795.8; (4) breach of warranty under the Magnuson-Moss Warranty Act, 15 U.S.C. Sections 2301-2312; and (5) breach of express warranty under Cal. Com. Code Section 2313. Ford moved for summary judgment. The district court granted summary judgment on: -- Plaintiffs' Consumers Legal Remedies Act and Unfair Competition Law claims because the court concluded that Plaintiffs failed to show reliance. -- the Song-Beverly Consumer Warranty Act claims of Plaintiffs Hauser, Glass, and Duarte because the court concluded that they failed to present evidence that their vehicles became unmerchantable within the duration of the implied warranty. -- the breach of express warranty claims of Plaintiffs Daniel and Duarte because the court concluded that the New Vehicle Limited Warranty did not cover the alleged design defect. -- Plaintiffs' Magnuson-Moss Warranty Act claims because those claims depend on Plaintiffs' warranty claims. The district court denied Plaintiffs' motion for class certification. In accordance with Federal Rule of Civil Procedure 54(b), the district court entered final judgment. In his Opinion dated December 2, 2015 available at http://is.gd/vh2xKIfrom Leagle.com, Judge Molloy, Senior District Judge for the U.S. District Court for the District of Montana, sitting by designation, reversed the district court's summary judgment order and remanded for further proceedings consistent with this opinion. "In light of our reversal, the Court of Appeals also instructed the district court to reconsider its denial of Plaintiffs' motion for class certification," Judge Molloy said, saying Plaintiffs have offered sufficient evidence to create a genuine issue of material fact as to the second sub-element of reliance -- whether they would have behaved differently if Ford had disclosed the alleged defect. A reasonable fact finder could infer that a vehicle that experiences premature and more frequent tire wear would pose an unreasonable safety risk, such that it can be presumed that the nondisclosure of the safety risk impacted Plaintiffs' purchasing decision. Plaintiffs have put forth sufficient evidence, when viewed in a light most favorable to them, that the Focus experienced premature and more frequent tire wear, and that Ford circulated special service messages to its authorized dealerships informing them that "some 2005-2011 Focus vehicles may exhibit premature front/rear tire wear and/or a vehicle drift condition when driving on wet or snow packed roads." Plaintiffs' experts opined that worn tires can pose a safety hazard in terms of road and weather conditions and potential blowouts. Even Ford acknowledges that "it can be dangerous to let the tires on any vehicle become excessively worn before replacing them." Under the terms of Ford's express warranty, Judge Molloy noted, Plaintiffs needed to return to Ford dealerships to perform warranty repairs. And it is through its dealership network that Ford circulated its special service messages and technical service bulletins when issues arose with the Focus. Based on this evidence, a reasonable fact finder could conclude that Ford knew that its consumers depended at least in part on its authorized dealerships for information about its vehicles and that Ford's authorized dealerships would have disclosed the alleged rear suspension defect to consumers if Ford had required it. Since Plaintiffs have sufficient evidence to establish a plausible method of disclosure and to establish that they would have been aware of information disclosed using that method, there is a genuine issue of material fact as to whether they in fact relied on Ford's omissions in purchasing the Focus. Because Plaintiffs have raised a genuine issue of fact as to reliance, the district court's order granting summary judgment on their Consumers Legal Remedies Act and Unfair Competition Law claims is reversed. Eric Grant, Esq. -- grant@hicks-thomas.com -- John B. Thomas, Esq. -- jthomas@hicks-thomas.com -- and Kelsey McDowell, Esq. -- kmcdowell@hicks-thomas.com -- of Hicks Thomas LLP -- J. Allen Carney, Esq. -- acarney@cauleybowman.com -- and Tiffany Wyatt Oldham, Esq. of Carney Bates & Pulliam PLLC for Plaintiffs- Appellants John M. Thomas, Esq. -- jthomas@dykema.com and Krista L. Lenart, Esq. -- klenart@dykema.com of Dykema Gossett PLLC for Defendant- Appellee FRESH EXPRESS: Recalls Baby Spinach Products Due to Tree Nut ------------------------------------------------------------ Fresh Express Incorporated is voluntarily issuing a precautionary recall of 350 cases of 12 oz. Fresh Express Baby Spinach with a Product Code of G010A17A and Use-By Date of January 24 due to a possible exposure to a tree nut allergen (almond). Fresh Express representatives are already coordinating with stores to remove the recalled product from retail stores where distributed, primarily in Eastern and Southeastern states. No other Fresh Express products are included in this recall. No illnesses are reported. The recall was necessitated when a portion of a single almond was inadvertently introduced into the production supply. In order to safeguard the health and wellbeing of consumers, Fresh Express is conducting a precautionary recall of product that could have come into contact with the almond during this isolated incident. In some individuals the consumption of an undisclosed allergen, such as tree nuts, could be life-threatening. Fresh Express takes all matters of food safety very seriously, including the issue of allergens. Company procedures and programs stringently follow all mandated regulations and focus on preventive measures designed to minimize potential risks. Fresh Express is coordinating closely with the U.S. Food and Drug Administration and is conducting a full investigation into this isolated event. Consumers in possession of the recalled product should discard it. A refund is available where purchased or by contacting the Fresh Express Consumer Response Center toll-free at (800) 242-5472 during the hours of 8 a.m. to 7 p.m. Eastern Time. Fresh Express Baby Spinach - 12 oz. bag Product Code of G010A17A and Use-By Date of January 24 located in the upper right hand corner on the front of the bag UPC Code of 0 71279 27111 8 located on the reverse side of the bag by the bar code Fresh Express Precautionary Recall, Baby Spinach - 1/15/16 (No other Fresh Express Salads are included in this recall) BRAND PRODUCT NAME SIZE UPC PRODUCTION CODE BEST IF USED BY DATE POSSIBLE DISTRIBUTION STATES Fresh Express Baby Spinach 12 oz. 71279 27111 8 G010A17A 24- Jan CT, DE, FL, GA, MA, ME, MD, NC, NH, NJ, NY, OH, PA, RI, VA GALARDI SOUTH: Can't Compel Arbitration in "Espinoza" Case ---------------------------------------------------------- Eva Fedderly, writing for Courthouse News Services, reported that a strip club cannot compel its dancers to engage in arbitration over their claims they are being paid less than minimum wage, a federal magistrate ruled in Miami. Exotic dancers at the King of Diamonds Gentlemen's Clubs in Miami filed a collective Fair Labor Standards Act case against their employer in April 2014, claiming the club and its affiliates refused "to pay the minimum wages and overtime compensation to the dancers-entertainers they employ." After the class action was filed, the club's owners began requiring all prospective dancers to sign arbitration agreements before they would be hired. It also asked current employees to sign the agreements. Four plaintiffs did so. Later, King of Diamonds filed a motion to compel arbitration, a motion the dancers opposed on the grounds that its filing was an "impermissible attempt to interfere with the proposed class." U.S. Magistrate Judge Jonathan Goodman sided with the dancers, holding that King of Diamond's arbitration policy, "was clearly coercive and admittedly designed to undermine this litigation." In explaining the rationale behind this conclusion, Goodman pointed out that the defendants "unequivocally" admitted that they imposed the arbitration requirement after the dancers' lawsuit was filed, and was done so to "dissuade entertainers from participating in this civil action." "Based on the testimony of the witnesses at the evidentiary hearing . . . including the confirmation from named Plaintiffs who refused to sign the agreement that they were, in fact, no longer provided the opportunity to work . . . Defendants did in fact make the signing of the subject arbitration agreement a condition of continuing employment." This, Goodman said, did make the defendants' action "coercive" and "abusive." Attorney Harlan Miller, who represents the plaintiffs class, told Courthouse News that Goodman's decision is great news for people who find themselves with mandatory arbitration agreements. "It speaks to all people who are fired and face mandatory arbitration. It's fundamental fairness. The judge did a great job explaining his rational," Miller said. A representative of King Of Diamonds declined to comment on the decision, as did the club's attorney, Dean Fuchs of Schulten, Ward & Turner in Atlanta. "Unfortunately I'm not in the habit of commenting on active cases, particularly before we've had the chance to appeal," Fuchs said. The case is captioned, JASZMANN ESPINOZA, et al., Plaintiffs, v. GALARDI SOUTH ENTERPRISES, INC., et al., Defendants, CASE NO. 14- 21244-CIV-GOODMAN (S.D. Fla.) GARDA CL: Faces "Oliver" Suit in Cal. Super. Ct. ------------------------------------------------ Christopher Oliver, individually, and on behalf of other members of the general public similarly situated, v. Garda CL West, Inc., a California corporation; and DOES 1 through 100, inclusive, Case No.BC603458 (Cal. Super., County of Los Angeles - Central District, December 7, 2015), was filed on behalf of a purported class of all non-exempt armored Drivers and/or Messengers who have been employed by Defendants in the State of California at any time from four years prior to the filing of this complaint until certification of the class in this lawsuit. Garda Cl West, Inc.'s line of business includes providing detective, guard, and armored car services. The Plaintiff is represented by: Ronald H. Bae, Esq. Olivia D. Scharrer, Esq. AEQUITAS LEGAL GROUP A Professional Law Corporation 1156 E. Green Street, Suite 200 Pasadena, CA 91106 Phone: (213)674-6080 Fax: (213)674-6081 GENCO SHIPPING: Motion to Dismiss Baltic Shareholder Suit Pending ----------------------------------------------------------------- Genco Shipping & Trading Limited said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2015, for the quarterly period ended September 30, 2015, that the Defendants' motion to dismiss a consolidated class action complaint in its entirety is pending. In April 2015, six class action complaints were filed in the Supreme Court of the State of New York, County of New York, styled Erol Sarikaya v. Peter C. Georgiopoulos et al., Index No. 651244/2015, filed on April 15, 2015, voluntarily dismissed, and refiled as Joshua Bourne v. Peter C. Georgiopoulos et al., Index No. 651429/2015, filed on April 28, 2015, Justin Wilson v. Baltic Trading Ltd., et al., Index No. 651241/2015, filed on April 15, 2015, Sangeetha Ganesan v. Baltic Trading Limited et al., Index No. 651279/2015, filed on April 17, 2015, Edward Braunstein v. Peter C. Georgiopoulos et al., Index No. 651368/2015, filed on April 23, 2015, Larry Williams v. Baltic Trading Ltd., et al., Index No. 651371/2015, filed on April 23, 2015, and Larry Goldstein and Bernhard Stomporowski v. John C. Wobensmith et al., Index No. 651407/2015, filed on April 27, 2015. All six complaints purport to be brought by and on behalf of the Baltic Trading's shareholders. The plaintiff in each action alleges the proposed merger does not fairly compensate Baltic Trading's shareholders and undervalues Baltic Trading. Each lawsuit names as defendants some or all of the Company, Baltic Trading, the individual members of Baltic Trading's board, the Company's and Baltic Trading's President, and the Company's merger subsidiary. The claims generally allege (i) breaches of fiduciary duties of good faith, due care, disclosure to shareholders, and loyalty, including for failing to maximize shareholder value, and (ii) aiding and abetting those breaches. Among other relief, the complaints seek an injunction against the merger, declaratory judgments that the individual defendants breached fiduciary duties, rescission of the merger agreement, and unspecified damages. On May 26, 2015, the six actions were consolidated under the caption In Re Baltic Trading Ltd. Stockholder Litigation, Index No. 651241/2015, and a consolidated class action complaint was filed on June 10, 2015 (the "Consolidated Complaint"). On June 30, 2015, Defendants moved to dismiss the Consolidated Complaint in its entirety; that motion is pending. On July 9, 2015, plaintiffs in that action moved to enjoin the merger vote, scheduled to take place on July 17, 2015. The motion was thereafter fully briefed and argued on July 15, 2015. The motion to enjoin the vote was denied. Plaintiffs sought an emergency injunction and temporary restraining order from the New York State Appellate Division, First Department the following day, on July 16, 2015. The Appellate Division denied the request, and the vote, and subsequent merger, proceeded as scheduled on July 17, 2015. Plaintiffs thereafter withdrew the appeal. GENERAL NUTRITION: Court Denies Conditionally Bid to Decertify -------------------------------------------------------------- District Judge Yvonne Gonzalez Rogers of the United States District Court for the Northern District of California denied, on a conditional basis, Defendant's motion to decertify the class and granted in part Defendant's motion to exclude Dr. Jeffrey S. Kane's testimony and evidence of the survey conducted by the Plaintiffs in the case captioned, CHARLES BREWER, individually and on behalf of all other similarly situated current and former employees of Defendant, Plaintiffs, v. GENERAL NUTRITION CORPORATION, Defendant, Case No. 11 CV 3587 YGR (N.D. Cal.). The named plaintiffs' off-the-clock claims for uncompensated time are mainly based on the premise that they were required to work to complete their duties after they had to log out of the POS system. Plaintiffs have represented that they will establish liability on a class-wide basis primarily by offering evidence of: (a) GNC's meal and rest break policies; (b) GNC's requirement that all employees sign an on-duty break waiver; (c) evidence that class members' time records show that they did not clock out for breaks despite GNC policy that requiring them to clock out and in for meal and rest breaks (and state regulations requiring employers to record all meal breaks); and (d) evidence that GNC never made a premium payment for a missed meal or rest break to any class member. Plaintiffs contend that GNC policy only authorizes breaks when "customer flow," "scheduling," and "business needs" permit, and that the on-duty break waivers were obtained because GNC knows that its policies will prevent them from taking breaks. GNC brought two motions: (1) for Decertification of the class action; and (2) to exclude the testimony of Plaintiffs' expert, Dr. Kane, as well as any evidence of the survey discussed in his report. In her Order dated December 28, 2015, 2015 available at http://is.gd/0VlX7Ifrom Leagle.com, Judge Rogers found that the arguments, evidence, and authorities offered by GNC do not change the Court's evaluation that the class and subclasses, as certified and as modified by the Court's order on the cross-motions for summary judgment, is properly certified under the requirements of Fed.R.Civ.P. Rule 23. The motion to dismiss as to the survey evidence is granted because it is not relevant to the liability issues on the meal and rest break claims as certified and denied dismissal of Dr. Kane's testimony because they go to the weight to be accorded to the evidence and not its admissibility and objections to his testimony can point out during cross- examination. Plaintiffs are represented by: Chad Avery Pradmore, Esq. Leonard Thomas Emma, Esq. Michael Robert Hoffman, Esq. HOFFMAN EMPLOYMENT LAWYERS LLC 580 California St #1600, San Francisco, CA 94104 Tel: (415)362-1111 - and - Stephen Noel Ilg, Esq. SCOTT COLE & ASSOCIATES, APC 1970 Broadway, Ninth Floor Oakland, CA 94612 General Nutrition Corporation is represented by Alan Sam Levins, Esq. -- alevins@littler.com -- Karin Morgan Cogbill, Esq. -- kcogbill@littler.com -- Sophia Behnia, Esq. -- sbehnia@littler.com -- Allison Renee Brown, Esq. -- arbrown@littler.com -- Robert William Pritchard, Esq. -- rpritchard@littler.com -- LITTLER MENDELSON, PC GIANT EAGLE: Recalls New Year's Pretzel Products Due to Walnut -------------------------------------------------------------- All lots of Giant Eagle brand New Year's Pretzels prepared and sold individually from the Bakery department inside the Niles Giant Eagle at 48 Vienna Avenue in Niles, Ohio since December 26 have been voluntarily recalled by Giant Eagle due to an undeclared walnut allergen. People who have an allergy or severe sensitivity to walnuts run the risk of a serious or life-threatening allergic reaction if they consume these products. The product is safe for consumption by those who do not have walnut allergies. Approximately 23,000 potentially affected New Year's Pretzels were purchased in various transactions in Giant Eagle and Market District supermarkets in Pennsylvania, with the Niles Giant Eagle also selling the product. Giant Eagle became aware of the issue when a Pennsylvania customer who purchased the product reported a related walnut allergy issue. The product label for the New Year's Pretzels, which contain walnuts, omitted walnuts as an allergen. Customers with a walnut allergy who have purchased the affected product should dispose of it or return it to their local Giant Eagle or Market District store for a refund. Customers with questions may call Giant Eagle Customer Care at 1-800-553-2324 Monday through Friday 9 a.m. to 9 p.m. EST. In addition to this public communication regarding this recall, Giant Eagle initiated its consumer recall telephone notification process. The consumer recall process uses purchase data and consumer telephone numbers housed in the Giant Eagle Advantage Card(R) database to alert those households that purchased the affected product and have updated telephone contact information in the database. Pictures of the Recalled Products available at: http://is.gd/VeYgEY GIANT EAGLE: Recalls New Year's Pretzel Products Due to Walnut -------------------------------------------------------------- All lots of Giant Eagle brand New Year's Pretzels prepared and sold individually from the Bakery department inside the Snow Road Giant Eagle located at 1825 Snow Road in Parma, Ohio since December 26 have been voluntarily recalled by Giant Eagle due to an undeclared walnut allergen. People who have an allergy or severe sensitivity to walnuts run the risk of a serious or life- threatening allergic reaction if they consume these products. The product is safe for consumption by those who do not have walnut allergies. Approximately 23,000 potentially affected New Year's Pretzels were purchased in various transactions in Giant Eagle and Market District supermarkets in Pennsylvania, with the Snow Road Giant Eagle in Parma, Ohio also selling the product. Giant Eagle became aware of the issue when a Pennsylvania customer who purchased the product reported a related walnut allergy issue. The product label for the New Year's Pretzels, which contain walnuts, omitted walnuts as an allergen. Customers with a walnut allergy who have purchased the affected product should dispose of it or return it to their local Giant Eagle or Market District store for a refund. Customers with questions may call Giant Eagle Customer Care at 1-800-553-2324 Monday through Friday 9 a.m. to 9 p.m. EST. In addition to this public communication regarding this recall, Giant Eagle initiated its consumer recall telephone notification process. The consumer recall process uses purchase data and consumer telephone numbers housed in the Giant Eagle Advantage Card(R) database to alert those households that purchased the affected product and have updated telephone contact information in the database. Pictures of the Recalled Products available at: http://is.gd/E0T0xc GIANT EAGLE: Recalls New Year's Pretzel Products Due to Walnut -------------------------------------------------------------- All lots of New Year's Pretzels prepared and sold individually from the Bakery department inside the Carmel Market District located at 11505 N Illinois Street in Carmel, Indiana since December 26 have been voluntarily recalled by Giant Eagle, Inc. due to an undeclared walnut allergen. People who have an allergy or severe sensitivity to walnuts run the risk of a serious or life-threatening allergic reaction if they consume these products. The product is safe for consumption by those who do not have walnut allergies. Approximately 23,000 potentially affected New Year's Pretzels were purchased in various transactions in Giant Eagle and Market District supermarkets in Pennsylvania and Ohio, with the Carmel Market District also selling the product. Giant Eagle, Inc. became aware of the issue when a Pennsylvania customer who purchased the product reported a related walnut allergy issue. The product label for the New Year's Pretzels, which contain walnuts, omitted walnuts as an allergen. Customers with a walnut allergy who have purchased the affected product should dispose of it or return it to the Carmel Market District for a refund. Customers with questions may call Market District Customer Care at 1-866-620-0216 Monday through Friday 9 a.m. to 9 p.m. EST. In addition to this public communication regarding this recall, Giant Eagle, Inc. initiated its consumer recall telephone notification process. The consumer recall process uses purchase data and consumer telephone numbers housed in the Market District Advantage Card database to alert those households that purchased the affected product and have updated telephone contact information in the database. Pictures of the Recalled Products available at: http://is.gd/E0T0xc GINN DEVELOPMENT: Approval of Class Action Settlement Affirmed -------------------------------------------------------------- The Court of Appeals for the Eleventh Circuit affirmed a district court's approval of a class action settlement in the appeal captioned case CHRISTOPHER GRECO, Interested Party-Appellant, JOHN DEMSHECK, PALMETTO PROPERTIES DEVELOPMENT, LLC, individually and on behalf of all others similarly situated, Plaintiffs-Appellees, v. GINN DEVELOPMENT COMPANY, LLC, Defendant-Appellee, Case No.: 14-11443, (11th Cir.) In his class action complaint, Plaintiff John Demshek, "on behalf of a class of all persons or entities that purchased real estate in one of Defendants' residential or resort developments," alleged that: Defendants Ginn Development Company, LLC and Lubert-Adler Partners, LP developed, marketed, and sold residential real estate; Plaintiff and the putative class members had purchased real estate in Defendants' developments; and Defendants circumvented the requirements for the sale of such real estate. Plaintiff also alleged that these actions resulted in losses for Plaintiff and the putative class members, and profits to Defendants. The class action complaint asserted causes of action under 15 U.S.C. Sections 1703 and 1707 (The Interstate Land Sales Full Disclosure Act (ILSA)) and 18 U.S.C. Sections 1962(c) and (d) (Racketeer Influenced and Corrupt Organizations Act (RICO)). Both Ginn and Lubert-Adler moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The district court granted Lubert-Adler's motion, but denied Ginn's motion. The district court (1) dismissed Plaintiff's ILSA claim under 15 U.S.C. Section 1707 as to both Lubert-Adler and Ginn, with prejudice; (2) dismissed the ILSA claim under 15 U.S.C. Section 1703 as to Lubert-Adler, with prejudice; and (3) dismissed the RICO claims pursuant to 18 U.S.C. Section 1962(c) and (d) against Lubert-Adler, without prejudice. Because Plaintiff did not seek to amend the pleadings to reassert any claims against Lubert-Adler, it no longer remained a party to the case. A lone objecting class member challenges the district court's approval of a class action settlement. Appellant Christopher Greco argues that the district court erred in finding that (1) the settlement was "fair, reasonable and adequate" under Federal Rule of Civil Procedure 23(e), and (2) the class members' right to due process was not deprived by the manner in which notice of the proposed settlement was given to the class. In his Opinion dated December 2, 2015 available at http://is.gd/Wpz5lLfrom Leagle.com, the Hon. R. David Proctor, United States District Judge for the Northern District of Alabama, sitting by designation, affirmed the district court's findings and conclusions, and its approval of this present class action settlement. The district court properly held that the release "is tailored to prevent the relitigation of settled questions at the core of this class action." If Greco was displeased with the consideration provided to him under the settlement in exchange for this release, he was free (as all other original objectors chose to do) to opt out of the settlement. He chose not to do so; therefore, he is bound by the settlement. The district court properly applied the correct legal standard, did so in an entirely appropriate manner, and made no findings of fact that are clearly erroneous. Therefore, it did not abuse its discretion by approving the proposed settlement as fair, adequate, and reasonable. GLOBAL COLLEGE: Court Grants Default Judgment in "Toler" Case ------------------------------------------------------------- District Judge Terrence G. Berg of the United States District Court for the Eastern District of Michigan granted Plaintiff's motion for default judgment and denied Defendants' oral motion for leave to answer the complaint in the case captioned, ANITA TOLER, individually and on behalf of a class of similarly situated persons, Plaintiff, v. GLOBAL COLLEGE OF NATURAL MEDICINE, INC., and HEATHER JOHNSTONE, Defendants, Case No. 13-10433 (E.D. Mich.). On February 4, 2013, Plaintiff filed her class action complaint under Federal Rules of Civil Procedure 23(b)(1) and (b)(3) on behalf of a class defined as: "all individuals who entrusted tuition in advance to GCNM and were active students in distance education programs of study through GCNM as of November 2012." Plaintiff alleged claims of: (1) breach of fiduciary duty; (2) negligence; (3) wrongful use or loss of property (bailment); (4) innocent, negligent and/or fraudulent concealment and omission; (5) promissory estoppel; (6) unjust enrichment/breach of quasi- contract; (7) equitable estoppel; and (8) breach of contract. Defendants, a defunct online college and its owner, have repeatedly failed to respond to the complaint resulting in the entry of default and final judgment for over a million dollars in damages. Defendants have been given numerous chances to avoid this outcome, but they and their Counsel have chosen not to defend the lawsuit. After months of silence, Defense Counsel somewhat unexpectedly appeared at the hearing to contest both liability and damages. At the hearing, Defense Counsel made an oral motion requesting that the Court deny Plaintiff's motion for default judgment and grant Defendants leave to finally answer Plaintiff's complaint, which had been filed almost three years ago. Defendant's oral motion was unaccompanied by any evidence or legal authority. Plaintiff filed her motion for default judgment pursuant to Federal Rule of Civil Procedure 55(b)(2) on October 12, 2015. In her Opinion and Order dated January 6, 2016 available at http://is.gd/KlQN8Pfrom Leagle.com, Judge Berg entered judgment against Defendants in favor of each individual identified on the Class List attached to the order as Exhibit A in the amount of tuition and fees specified, plus interest, including any interest paid on any loans used to pay the tuition and fees. The total amount of the judgment in favor of the Class will be $1,422,080.05 exclusive of interest. Anita Toler is represented by Dean M. Googasian, Esq. -- dgoogasian@googasian.com -- Debra S. Janicki, Esq. -- djanicki@googasian.com -- Thomas H. Howlett, Esq. -- thowlett@googasian.com -- GOOGASIAN LAW FIRM Defendants are represented by Brian Graham, Esq. -- bryan.graham@klgates.com -- K & L GATES GOOD EARTH: Recalls Shell Eggs Due to Salmonella ------------------------------------------------ Good Earth Egg Company, LLC of Bonne Terre, Missouri has announced a voluntary recall of its shell eggs because they have the potential to be contaminated with Salmonella, an organism which can cause serious and sometimes fatal infections in young children, frail or elderly people, and others with weakened immune systems. Healthy persons infected with Salmonella often experience fever, diarrhea (which may be bloody), nausea, vomiting and abdominal pain. In rare circumstances, infection with Salmonella can result in the organism getting into the bloodstream and producing more severe illnesses such as arterial infections (i.e., infected aneurysms), endocarditis and arthritis. The Food and Drug Administration has notified Good Earth Egg that a link has been established between eggs produced in our facility to cases of Salmonella illnesses in the state of Missouri. In light of this investigation, and with an abundance of caution, Good Earth Egg Company has initiated a voluntary recall of all shell eggs. Various sizes of shell eggs are packaged in the following ways: 6-count cartons, 10-count cartons, 12-count cartons, 18-count cartons, 15 dozen cases, and 30 dozen cases. The dates and codes on the cartons and cases will include everything prior to and including date code 006 - Sell By 02/05/2016, under the brand name Good Earth Egg Company, license number D-01124. The Good Earth Egg Company recalled products were distributed throughout the Midwest, including Missouri and Illinois, at the retail and wholesale level, institutions, and to walk-in customers. Good Earth eggs are sold at Dierbergs, Shop n' Save, Straubs, Midtowne Market and Price Chopper in the metropolitan St. Louis area. Good Earth Egg Company is working with distributors and retailers to remove these products from wholesale suppliers and retail shelves. Consumers do not need to return the product to the store where it was purchased. Instead, consumers should discard any product and its container. Good Earth Egg Company will work directly with each consumer to manage replacement of its product. Consumers with questions may contact Good Earth Egg Company, LLC at goodeartheggco@hotmail.com. Good Earth Egg Company has released the following statement, "We are taking these steps because consumer safety is our top priority. As a third-generation family operated farm, we are solely focused on providing fresh, quality, healthy eggs to local consumers. Although no Good Earth Egg Company eggs have tested positive for Salmonella, we feel strongly that issuing a voluntary recall is the right thing to do. Good Earth Egg Company is working closely with the FDA to determine the root cause of the potential contamination." Pictures of the Recalled Products available at: http://is.gd/gUkObp GREENWAY HEALTH: Physicians Healthsource Files Suit Under TCPA -------------------------------------------------------------- Physicians Healthsource, Inc., an Ohio corporation, individually and as the representative of a class of similarly-situated persons, v. Greenway Health, LLC f/k/a Sage Software Health Care a/k/a Vitera Healthcare solutions, (Circuit Court of Cook County, Illinois County Department Chancery Division, December 8, 2015), challenges Defendant's alleged practice of sending facsimiles without proper notice as required pursuant to the federal Telephone Consumer Protection Act. Greenway Health, LLC, is a Delaware corporation with its principal place of business in Tampa, Florida, and was formerly known as Sage Software Health Care. Greenway Health, LLC is also currently known as Vitera Healthcare Solutions. The Plaintiff is represented by: Brian J. Wanca, Esq. David M. Oppenheim, Esq. ANDERSON+ WANCA 3701 Algonquin Road, Suite 500 Rolling Meadows, IL 60008 Phone: (847)368-1500 Fax: (847)368-1501 GROWLIFE INC: Court Entered Final Order Resolving Class Action -------------------------------------------------------------- GrowLife, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2015, for the quarterly period ended September 30, 2015, that a California court has entered a Final Order and Judgment resolving the consolidated class action litigation in its entirety. Beginning on April 18, 2014, three class action lawsuits alleging violations of federal securities laws were filed against the Company in United States District Court, Central District of California (the "Court"). At a hearing held on July 21, 2014, the three class action lawsuits were consolidated into one case with Lawrence Rosen as the lead plaintiff (the "Consolidated Class Action," styled Romero et al. vs. GrowLife et al.). On May 15, 2014 and August 4, 2014, respectively two shareholder derivative lawsuits were filed against the Company with the Court (the "Derivative Actions"). On October 20, 2014, AmTrust North America, the Company's insurer, filed a lawsuit contesting insurance coverage on the legal proceedings. The Company made a general appearance in this action. On January 20, 2015, the Court ordered all of the actions stayed pending completion of mediation of the dispute. On June 1, 2015, the Court preliminarily approved the proposed settlement of the Derivative Actions pursuant to a proposed stipulated settlement agreement. On August 3, 2015, the Court entered a Final Order and Judgment resolving the Consolidated Class Action litigation in its entirety. The Consolidated Class Action was thereby dismissed in its entirety with prejudice and without costs. On August 10, 2015, pursuant to a settlement by and between the Company and AmTrust North America, AmTrust's lawsuit contesting insurance coverage of the Consolidated Class Action and Derivative Actions was dismissed in its entirety with prejudice pursuant to a Stipulation for Dismissal of Entire Action with Prejudice executed by and between AmTrust and the Company. On August 17, 2015, the Court entered a Final Order and Judgment resolving the Derivative Actions in their entirety. The Derivative Actions were thereby dismissed in their entirety with prejudice. As a result of the foregoing, all litigation is resolved in full at this time. The Company expects to issue $2 million in common stock or approximately 115.1 million shares related to the settlement of the Consolidated Class Action and Derivative Action lawsuits alleging violations of federal securities laws that were filed against the Company in United States District Court, Central District of California. The shares have not been issued as of November 13, 2015. The Company accrued $2,081,250 as loss on class action lawsuits and contingent liabilities as of June 30, 2015. HANOVER INSURANCE: "Hockenbury" Case Remains in W.D. Okla. ---------------------------------------------------------- District Judge Timothy D. Degiusti of the United States District Court for the Western District of Oklahoma denied Plaintiff's motion to remand in the case captioned, MICHAEL HOCKENBURY, an individual, on behalf of himself and others similarly situated, Plaintiff, v. THE HANOVER INSURANCE COMPANY, Defendant, Case No. CIV-15-1003-D (W.D. Okla.). After his property was damaged by water, Plaintiff Michael Hockenbury submitted a claim to his insurer, Defendant The Hanover Insurance Company. Hockenbury contended Hanover, in bad faith and in violation of the insurance policy, failed to conduct a fair and reasonable investigation and intentionally underpaid him for the loss. Hockenbury brought the instant action on behalf of himself and a putative class of all persons who submitted claims to Hanover for property damage under homeowners or commercial policies issued in or covering property in the State of Oklahoma any time after February 1, 2009. Hanover timely removed the action on two grounds: (1) diversity jurisdiction over Hockenbury's individual claim and (2) jurisdiction under the Class Action Fairness Act of 2005 (CAFA). In the motion, Hockenbury moved to remand his suit to state court on the basis that neither claim of jurisdiction meets the requisite amount in controversy under either jurisdictional theory. He contended his stipulation that he did not seek damages excess of $75,000 for himself or $5,000,000 on behalf of the class should end the Court's inquiry and result in remand. He further stated Hanover failed to show his damages meet the statutory minimum, either under 28 U.S.C. Sec. 1332 or CAFA, even assuming punitive damages are recovered. In his Order dated January 5, 2016 available at http://is.gd/cqjIwYfrom Leagle.com, Judge Degiusti found that Hanover has demonstrated by a preponderance of the evidence that the amount in controversy, as alleged, more likely than not exceeds $75,000, or at least such amount is in play. The Court concluded that Hanover has carried its burden to establish sufficient facts to warrant the district court's exercise of diversity jurisdiction over Hockenbury's individual claims. Plaintiffs are represented by: Paul A. Zebrowski, Esq. Thomas A. Biscup, Esq. ZEBROWSKI LAW FIRM Shelby W Blvd. Shelby Charter Township, MI 48315 Tel: (586)566-7266 - and - J. Drew Houghton, Esq. FOSHEE & YAFFE 12231 S May Ave Oklahoma City, OK 73170 Tel: (405)378-3033 Hanover Insurance Company is represented by Stephen E. Goldman, Esq. -- sgoldman@rc.com -- Wystan M. Ackerman, Esq. -- wackerman@rc.com -- ROBINSON & COLE - and - Sarah J. Timberlake, Esq. ABOWITZ TIMBERLAKE & DAHNKE PC The Hightower Building, Tenth Floor 105 North Hudson Oklahoma City, OK 73102 Tel: (405) 236-4645 HAYES ROBERTSON: Court Dismisses Lopez as Class Representative -------------------------------------------------------------- Magistrate Judge Jonathan Goodman of the United States District Court for the Southern District of Florida dismissed Paul Lopez as a class representative in the case captioned, Paul Lopez, et al., Plaintiffs, v. Hayes Robertson Group, Inc., et al., Defendants, Case No. 13-10004-CIV-Martinez/Goodman (S.D. Fla.). Judge Goodman then changed the case caption to Andrea Trdina v. Hayes Robertson Group, Inc. et al. In December of 2011, a putative class action was filed against the present Defendants by 21 of the plaintiffs in the present action. Magistrate Judge Chris McAliley granted certification of a class action in the matter as to minimum wage claims under Florida law pursuant to Federal Rule of Civil Procedure 23(b)(3) and the Fair Labor Standards Act, 29 U.S.C. 216(b). After the FLSA collective action was certified, the parties stipulated -- during a hearing -- that the action should not proceed as an FLSA collective action; instead, the parties agreed to proceed solely as a Rule 23 class action pursuing Florida claims. In the motion, Plaintiffs moved to dismiss the individual claims of Lopez without prejudice, dismiss Lopez as a Class Representative and to change the caption of the case to reflect Trdina as the sole named Plaintiff in the case. Plaintiffs sought to dismiss the individual FLSA claims of Lopez and all other individual Plaintiffs with the exception of Trdina. Defendants opposed asserting that the class representation will ultimately be harmed by the absence of Lopez, but state nothing specifically beyond vagaries about ensuring continued fair and adequate representation of the class members. In his Order dated December 23, 2015, 2016 available at http://is.gd/0VhnEwfrom Leagle.com, Judges Goodman found Defendants' argument unpersuasive because Defendants cannot point to a single specific, tangible harm that the class members would face because of Lopez's absence. Plaintiffs' request to change the case caption and remove Lopez individually from the case as a whole is granted because all of Lopez's individual claims are already dismissed. Plaintiffs are represented by: Edilberto O. Marban, Esq. 782 Northwest 42nd Ave., Suite 350 Miami, FL 33126 Defendants are represented by: Shyam N.S. Dixit, Jr., Esq. Robert L. Vessel, Esq. DIXIT LAW FIRM, PA 3030 N Rocky Point Dr W #260, Tampa, FL 33607 Tel: (813)252-3999 HCSB FINANCIAL: Entered Into Class Action Settlement Agreement -------------------------------------------------------------- HCSB Financial Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2015, for the quarterly period ended September 30, 2015, that effective as of September 16, 2015, the Company, Horry County State Bank (the "Bank"), and several of its executive officers (collectively, the "Defendants") entered into a Class Action Settlement Agreement (the "Settlement Agreement") in potential settlement of a putative class action lawsuit filed by Jan W. Snyder, Acey H. Livingston, and Mark Josephs, on behalf of themselves and all purchasers of the Company's subordinated debt notes (collectively, the "Plaintiffs"). The suit is seeking an unspecified amount of damages resulting from alleged wrongful conduct associated with purchases of the Company's subordinated debt notes. On September 16, 2015, the court signed its Preliminary Order of Approval (the "Preliminary Approval Order") with respect to the proposed settlement. A final hearing was scheduled for November 23, 2015, at which the court will be asked to finally approve the settlement of the class action lawsuit and to enter judgment accordingly. The Settlement Agreement does not constitute a concession or admission of wrongdoing or liability by the Defendants. The Defendants have entered into the Settlement Agreement solely to avoid future inconvenience and protracted, costly litigation and to help facilitate a proposed recapitalization of the Bank. Under the terms of the Settlement Agreement, the Company will establish a settlement fund of approximately $2.4 million, which represents 20% of the principal of subordinated debt notes issued by the Company. Class members will be entitled to receive 20% of the principal of their notes, which will be paid from the settlement fund, in exchange for a full and complete release of all claims that were asserted or could have been asserted in the lawsuit, including further repayment of principal and interest due under the notes. The Company will separately pay the approved attorneys' fees, costs, and expenses of class counsel up to an aggregate of $250 thousand. The settlement is expressly contingent on the following events occurring before the final hearing by the court: (1) the signing of an agreement between the Company and holders of certain trust preferred securities issued by the Company for the repurchase of such securities by the Company for an amount not to exceed 10% of the outstanding principal balance owed thereon, or $619 thousand, plus reimbursement of attorneys' fees and other expenses incurred by the holders of the trust preferred securities not to exceed $25 thousand; (2) the signing of an agreement between the Company and the U.S. Treasury for the repurchase of the Series T Preferred Stock in an amount not to exceed 1% of the aggregate initial liquidation preference of the Series T Preferred Stock, or $129 thousand, plus reimbursement of attorneys' fees and other expenses incurred by the U.S. Treasury not to exceed $25 thousand; and (3) the receipt of signed agreements for an investment in the Company of no less than $30 million through a sale of Company stock to investors or the execution of a merger agreement with another financial institution. In addition, the Company and the Bank must receive the necessary regulatory approvals or non-objections for each of above transactions before any payments can be made from the settlement fund, although such approvals do not have to occur before the final hearing by the court. HERITAGE INTERNATIONAL: Recalls Raw Cashew Due to Salmonella ------------------------------------------------------------ Heritage International (USA) Inc. of Compton, CA is voluntarily recalling one lot of Trader Joe's Raw Cashew Pieces with the following code "BEST BEFORE 07.17.2016TF4" because of potential contamination with Salmonella. Salmonella is an organism that can cause serious and sometimes fatal infections in young children, frail or elderly people, and others with weakened immune systems. Healthy persons infected with Salmonella often experience fever, diarrhea (which may be bloody), nausea, vomiting and abdominal pain. In rare circumstances, infection with Salmonella can result in the organism getting into the bloodstream and producing more severe illnesses such as arterial infections (i.e., infected aneurysms), endocarditis and arthritis. The recall only affects one specific lot of Trader Joe's Raw Cashew Pieces. The product comes in a 16 ounce, clear, non- resealable plastic package (with a barcode number of 00505154) and with the following lot code, "BEST BEFORE 07.17.2016TF4." The "BEST BEFORE" information can be found on the backside of the package above the barcode. The product was distributed only to Trader Joe's stores in Connecticut, Delaware, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New York, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Vermont, Virginia, Washington, Washington D.C. and Wisconsin. No illnesses have been reported to date. The voluntary recall was initiated by Heritage International (USA) Inc., after routine testing by an FDA contract laboratory revealed the presence of Salmonella in one lot of Raw Cashew Pieces. Other lots tested by the FDA contract laboratory and further testing of this lot by Trader Joe's resulted in no additional findings of contamination. Customers who have purchased the specified lot code (BEST BEFORE 07.17.2016TF4) of Raw Cashew Pieces are urged not to eat the product, and to dispose of it or return it to any Trader Joe's for a full refund. Customers may call Trader Joe's Customer Relations at (626) 599-3817 6:00AM-6:00PM PST, Monday - Friday, with any questions. Pictures of the Recalled Products available at: http://is.gd/EhcPGZ HONDA MOTORS: Car Wiring Attracts Mice, "Dobbs" Suit Says --------------------------------------------------------- Matt Reynolds, writing for Courthouse News Service, reported that Honda cars with soy-coated electrical wiring attract mice, rabbits and squirrels, who munch on the snacks, but Honda refuses to cover repairs, drivers from three states say in a federal class action in Los Angeles. Lead plaintiff Daniel Dobbs, of Wyoming, and car owners from Arizona and Texas sued Honda on Jan. 21 for breach of warranty. They claim that the soy-based coatings in 2012-2015 model year Hondas attract rodents. Greg Delaney, of Arizona, says he took his 2014 CrossTour to the dealer because the wiring was "shredded through." The dealer said repairs were not covered by warranty, but they did find "a live rabbit still chewing through the wiring in Mr. Delaney's vehicle, and provided Mr. Delaney with a photograph of the live animal chewing the wiring in the car. Mr. Delaney was charged and paid approximately $765 for the repair," he says. It wasn't a fluke, they say. Plaintiff Sean Rickard, of Texas, had to pay his $500 deductible from a $1,400 bill after his Accord's power steering wiring was chewed through. Honda refused to cover it under warranty. Two days later, he says, he saw "a rabbit resting underneath the car and chewing the wiring from that location closest to the ground without breaching the engine compartment. ... Mr. Rickard noticed that the wiring harness had been chewed through again at approximately the same spot." Honda says the soy-based insulation is cheaper and kinder on the environment because it is biodegradable. "Unbeknownst to plaintiffs, however, a real and continuous unintended and undesired consequence of this soy-based insulation material is that it attracts rodents and other animals that are drawn by the soy content of the insulation, and proceed to chew through the insulation and electrical wires that the insulation coats," the complaint states. Dobbs got off easy, with a repair bill of only $271. Several consumer and news reports have noted that rodents like the soy in the insulation. Honda knows it too, and "actually sells rodent repellent tape used to wrap electric wiring in order to deal with the propensity of having this wiring chewed through by rodents and other animals attracted to the soy component of the wires," Rickard says in the complaint. It cites an auto mechanic who told a Cleveland news station in August 2013 that rodents are "drawn to" the tasty insulation, and build nests in the air intakes, for easy snacking. Dobbs et al. seek class certification, actual and statutory damages for breach of express warranty and violation of the Magnuson-Moss Warranty Act, and creation of a common fund for legal costs and fees. They are represented by Michael Braun of Los Angeles and Roy Katriel of La Jolla. Honda could not immediately be reached for comment on Jan. 22. IBIO INC: Settlement in Securities Case Reached After Mediation --------------------------------------------------------------- iBio, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2015, for the quarterly period ended September 30, 2015, that the plaintiffs and the Company have reached an agreement-in-principle to settle a class action lawsuit after voluntary mediation. On October 24, 2014, a putative class action captioned Juan Pena, Individually and on Behalf of All Others Similarly Situated v. iBio, Inc. and Robert B. Kay was filed in the United States District Court for the District of Delaware. The action alleged that the Company and its Chief Executive Officer made certain statements in violation of Federal securities laws and sought an unspecified amount of damages. On February 23, 2015, the Court issued an order appointing a new lead plaintiff. On April 6, 2015, the plaintiffs filed an amended class action complaint in the same matter captioned Vamsi Andavarapu, Individually And On Behalf Of All Others Situated v. iBio, Inc., Robert B. Kay, and Robert Erwin. The action alleged that the Company, its Chief Executive Officer, and its President made certain statements in violation of Federal securities laws and sought an unspecified amount of damages. On May 6, 2015, the Company, Mr. Kay, and Mr. Erwin filed a motion to dismiss the amended class action complaint. On September 15, 2015, after voluntary mediation, the Plaintiffs and the Company reached an agreement-in-principle to settle the action. The terms of the settlement are subject to preliminary and final approval by the Court. The Company expects that the settlement will be approved by the Court and funded by the Company's insurance carrier. ICONIX BRAND: Three Securities Class Actions Pending in S.D.N.Y. ---------------------------------------------------------------- Iconix Brand Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2015, for the quarterly period ended September 30, 2015, that three securities class actions, respectively captioned Lazaro v. Iconix Brand Group, Inc. et al., Docket No. 1:15-cv-04981-PGG, Niksich v. Iconix Brand Group, Inc. et al., Docket No. 1:15-cv-04860-PGG and Haverhill Retirement System v. Iconix Brand Group, Inc. et al Docket No. 1:15-cv-06658, are pending in the United States District Court for the Southern District of New York against the Company and certain former officers and one current officer (each, a "Class Action" and, together, the "Class Actions"). The plaintiffs in the Class Actions purport to represent a class of purchasers of the Company's securities from February 20, 2013 to August 7, 2015, inclusive, and claim that the Company and individual defendants violated sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended, by making allegedly false and misleading statements regarding certain aspects of the Company's business operations and prospects. The Company and the individual defendants intend to vigorously defend against the claims. ING USA ANNUITY: Class Notice in "Abbit" Case Approved ------------------------------------------------------ District Judge Gonzalo P. Curiel of the United States District Court for the Southern District of California granted the parties' joint motion for entry of scheduling order to approve plan to disseminate notice of class action in the case captioned, ERNEST O. ABBIT, on behalf of himself and on behalf of all persons similarly situated, Plaintiff, v. ING USA ANNUITY AND LIFE INSURANCE COMPANY, ING U.S., INC., Defendant, Case No. 13-CV-2310- GPC-WVC (S.D. Cal.). On November 16, 2015, the Court certified these classes: (1) "All persons or entities, excluding defendants and their directors, officers, predecessors, successors, affiliates, agents, co-conspirator and employees, as well as the immediate family members of such persons, that, when a resident of either the state of California, Florida, Illinois, Pennsylvania or Texas, purchased a Secure Index fixed index annuity contract from ING USA Annuity and Life Insurance Company within the applicable statute of limitations."; and (2) "All persons or entities, excluding defendants and their directors, officers, predecessors, successors, affiliates, agents, co-conspirator and employees, as well as the immediate family members of such persons, that, when a resident of California, purchased a Secure Index fixed index annuity contract from ING USA Annuity and Life Insurance Company within the applicable statute of limitations." and (3) a subclass of "All members of the California Class that were age 65 or older on the date of purchase, excluding defendants and their directors, officers, predecessors, successors, affiliates, agents, co-conspirator and employees, as well as the immediate family members of such persons." The Court directed the parties to meet and confer and submit a joint proposed notice to the Classes on or before December 14, 2015. On December 14, 2015, the parties filed a joint stipulation and motion for entry of scheduling order, to approve plan to disseminate notice of class action. In his Order dated January 4, 2016 available at http://is.gd/XlRW1ffrom Leagle.com, Judge Curiel found that the notice complies with the Court's Class Certification Order. The Court directed the parties to submit either a joint proposed Notice Plan or separate proposed Notice Plans for the Court's approval and directive to issue notice to the Classes on or by January 5, 2016. Ernest O. Abbit is represented by: Timothy J. Tatro, Esq. TATRO & ZAMOYSKI, LLP 12760 High Bluff Dr #210 San Diego, CA 92130 Tel: (858)244-5032 - and - Andrew W. Hutton, Esq. HUTTON LAW GROUP 12671 High Bluff Dr # 130, San Diego, CA 92130 Tel: (858)793-3500 Defendants are represented by Christopher T. Wright, Esq. -- cwright@knlh.com -- KIRBY NOONAN LANCE & HOGE LLP & Clark Cunningham Johnson, Esq. -- cjohnson@stites.com -- STITES & HARBISON INTELLECTUAL CAPITAL: "Acton" Case Stayed, Pending Motions Tossed ----------------------------------------------------------------- District Judge Joanna Seybert of the United States District Court for the Eastern District of New York granted the parties' joint request for a stay of the proceeding and terminated all pending motions in the case captioned, MATTHEW ACTON and PETER MARCHELOS, individually and on behalf of all other similarly situated persons, Plaintiff, v. INTELLECTUAL CAPITAL MANAGEMENT, INC. D/B/A SMS MASTERMINDS and SPENDSMART NETWORKS, INC., Defendants, Case No. 15 CV 400 (JS)(AR) (E.D.N.Y.). On July 8, 2015, Plaintiffs commenced the action against Defendants, individually and on behalf of an alleged class, asserting a claim pursuant to the Telephone Consumer Protection Act (TCPA). Plaintiffs allege that Defendants violated the TCPA by sending commercial text messages to Plaintiffs' and class members' cell phones without their consent. Plaintiffs filed a motion for class certification simultaneously with the filing of their Complaint. On September 11, 2015, Defendants served Plaintiffs with Offers of Judgment pursuant to Federal Rule of Civil Procedure 68. Plaintiff Peter Marchelos accepted Defendants' Offer of Judgment and the Court granted his motion for judgment based on settlement. Plaintiff Matthew Acton did not accept Defendants' Offer of Judgment. Pending before the Court are: (1) Plaintiffs Matthew Acton and Peter Marchelos' motion for class certification; (2) defendants Intellectual Capital Management Inc. d/b/a SMS Masterminds and Spendsmart Networks, Inc.'s motion to stay proceedings; (3) Defendants' request for judicial notice in support of their motion to stay proceedings; and (4) the parties' Stipulation to Stay Proceedings. Defendants filed a sub judice motion to stay proceedings pending the resolution of certain Supreme Court and District of Columbia Circuit matters. Defendants allege that the resolution of three cases for which the Supreme Court granted certiorari will likely result in precedent-controlling determinations with respect to the following issues in this case: (1) whether Defendants' Rule 68 offer of judgment renders this matter moot; (2) whether Acton has standing to pursue this matter in the absence of actual damages or injury in fact; and (3) whether Acton may certify a class of individuals that were not injured. These cases are Gomez v. Campbell-Ewald Co., 768 F.3d 871 (9th Cir. 2014), cert. granted, 135 S.Ct. 2311 (May 18, 2015); Robins v. Spokeo, Inc., 742 F.3d 409 (9th Cir. 2014), cert. granted, 135 S.Ct. 1892 (Apr. 27, 2015); Bouaphakeo v. Tyson Foods, Inc., 593 F. App'x 578 (8th Cir. 2014), cert. granted, 135 S.Ct. 2806 (Jun. 8, 2015). Defendants also allege that appeals filed in the District of Columbia Circuit challenging the validity of a 2015 TCPA Order issued by the Federal Communications Commission will similarly affect the outcome of this litigation to the extent that the D.C. Circuit clarifies certain definitions within the TCPA. ACA Int'l v. FCC, No. 15-1211 (D.C. Cir.), is the lead case in those consolidated appeals. Defendants request a stay pending the outcome of the Supreme Court Cases or, alternatively, a stay pending the disposition of the D.C. Circuit Appeals. Acton has not opposed Defendants' motion. Subsequent to the filing of Defendants' motion, the parties' counsel executed a Stipulation agreeing to stay this matter pending the outcome of the Supreme Court Cases and the D.C. Circuit Appeals. In her Memorandum and Order dated December 28, 2015 available at http://is.gd/0nAGqlfrom Leagle.com, Judge Seybert directed the parties to advise the Court within seven days of the Supreme Court or District of Columbia Circuit's resolution of each case. Plaintiffs are represented by: Erik Harald Langeland, Esq. ERIK H. LANGELAND, P.C. 500 5th Ave #1610, New York, NY 10110 Tel: (212)354-6270 Defendants are represented by Harrison Brown, Esq. -- Hbrown@BlankRome.com & Rither Alabre, Esq. -- RAlabare@BlankRome.com -- BLANK ROME, LLP INTERMARK FOODS: "Duran" Suit Alleges Failure to Pay Overtime ------------------------------------------------------------- Aisnel Duran, and all others similarly situated v. Intermark Foods, Inc. aka Intermark Marketing Services, Inc., and Maria Epres Ibanez, Case No. 1:15-cv-24549 (S.D. Fla., December 10, 2015), is brought against the Defendants for failure to pay overtime in violation of the Fair Labor Standards Act. The Defendants own and distribute Hispanic foods in the South Florida market. The Plaintiff is represented by: J.H. Zidell, Esq. J.H. Zidell, P.A. 300 71st Street, Suite 605 Miami Beach, FL 33141 Tel: (305) 865-6766 Fax: (305) 865-7167 E-mail: zabogado@aol.com JOHNSON & JOHNSON: "Mihalich" Suit Dismissed with Leave to Amend ---------------------------------------------------------------- District Judge David R. Herndon of the United States District Court for the Southern District of Illinois granted dismissal with leave to amend in the case captioned, BARBARA MIHALICH, individually and on behalf of all others similarly situated, Plaintiff, v. JOHNSON & JOHNSON and JOHNSON & JOHNSON CONSUMER COMPANIES, INC., Defendants, Case No. 14-CV-600-DRH-SCW (S.D. Ill.). On May 23, 2014, plaintiff Barbara Mihalich filed a putative class action on behalf of herself and a class of other similarly situated purchasers of Johnson's(R) Baby Powder alleging that defendants Johnson & Johnson and Johnson & Johnson Consumer Companies, Inc. failed to warn consumers of the risks associated with the use of Johnson & Johnson Baby Powder for feminine hygiene purposes in the female perineum. Plaintiff's complaint alleges a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA) and seeks injunctive relief resulting from the alleged violation (Count I), in addition to alleging a claim for unjust enrichment (Count II), arguing that the proposed class of plaintiffs conferred a monetary benefit on defendants when purchasing the baby powder product, while defendants simultaneously failed to sufficiently disclose its risks of use to consumers. In the motion, Johnson & Johnson and Johnson & Johnson Consumer Companies, Inc. moved to dismiss for failure to state a claim and alternative motion to strike. Specifically, defendants moved for dismissal of plaintiff's complaint pursuant to FEDERAL RULE OF CIVIL PROCEDURE 12(b)(1), 12(b)(6) and 12(b)(9). Plaintiff opposed the motion, arguing defendants' motion lacks merit, and that plaintiff suffered no compensable injury. In his Memorandum and Order dated December 28, 2015 available at http://is.gd/OdkA5zfrom Leagle.com, Judge Herndon found that Mihalich failed to allege the specific misrepresentations she saw, or how they were communicated to her. She noted multiple statements or websites of the defendant but does not satisfy Rule 9(b), as applied to her claim and that plaintiff has insufficiently pled her ICFA claims and the unjust enrichment claim arising out of the same facts is also subject to dismissal. The Court directed Plaintiff to file an amended complaint on or before January 22, 2016. Barbara Mihalich is represented by Kevin P. Green, Esq. -- kevin@ghalaw.com -- Mark C. Goldenberg, Esq. -- mark@ghalaw.com -- Thomas P. Rosenfeld, Esq. -- tom@ghalaw.com -- Ann E. Callis, Esq. -- acallis@ghalaw.com -- Nathaniel R. Carroll, Esq. -- nathaniel@ghalaw.com -- GOLDENBERG HELLER ANTOGNOLI & ROWLAND, PC & Timothy G. Blood, Esq. -- tblood@bholaw.com -- BLOOD, HURST & REARDON LLP Defendants are represented by Matthew David Powers, Esq. -- mpowers@omm.com -- Richard B. Goetz, Esq. -- rgoetz@omm.com -- Victoria L. Weatherford, Esq. -- vweatherford@omm.com -- O'MELVENY & MYERS LLP & Dan H. Ball, Esq. -- dhball@bryancave.com -- Timothy J. Hasken, Esq. -- tjhasken@bryancave.com -- BRYAN CAVE, LLP JP MORGAN: "1409 West" Suit Alleges Negligence ---------------------------------------------- 1409 West Diversey Corporation dba Bellwood Hotel, and all others similarly situated v. JP Morgan Chase Bank NA, Case No. 2015-CH- 17861 (Ill. Cir., December 9, 2015), is brought against the Defendant for alleged negligence in connection with its Mobile Check Capture service. The Plaintiff alleged that the Defendant failed to provide security sufficient to prevent its customers from cashing checks after those same checks had been deposited via Mobile Check Capture. The Defendant is a National Banking Association established pursuant to federal law, with its principal place of business in New York and is engaged in the banking business in Illinois. The Plaintiff is represented by: Edward A. Berman, Esq. EDWARD A. BERMAN PC 55 West Monroe, Suite 3550 Chicago, IL 60603 Tel: (312) 236-2020 - and - Terrence Buehler, Esq. LAW OFFICE OF TERRENCE BUEHLER 55 W. Wacker Drive, Ste. 1400 Chicago, IL 60601 Tel: (312) 372-2209 L.A. SCHOOL DISTRICT: Sued Over Use of $224MM in Bond Money ----------------------------------------------------------- Matt Reynolds, writing for Courthouse News Services, reported that Los Angeles School District took $224 million in bond money earmarked for charter schools without public oversight or accountability, the California Charter Schools Association claims in court. In a Jan. 11 lawsuit in Superior Court, the association claims LAUSD violated Proposition 39, the Smaller Classes, Safer Schools and Financial Accountability Act. The 2000 proposition amended the state constitution to reduce the voter threshold needed to approve school bonds from two-thirds to 55 percent. Almost 20 percent of LAUSD school students attend independent charter schools, and in the past 10 school years enrollment in charter schools has increased by 400 percent, the association says. In that time, L.A. public schools decreased by 150,000, according to the complaint. The association says charter schools and students desperately need public funds to stay open and maintain their facilities. In 2008, California voters approved a $7 billion bond measure that included $450 million earmarked for charter schools. "Despite its legal obligations, LAUSD has repeatedly reallocated and reduced the $450 million charter school share of Measure Q bond funds," the lawsuit states. The association says that LAUSD did not publicly release documents that would should how the money is spent, though the association made a public records request. Based on available information it appears the $450 million has been reduced by almost half, in increments of $48 million, $88 million, and another $88 million, the association says. "Each of these reductions was done without transparency or accountability. There was nearly no ability for interested stakeholders to provide input into LAUSD's actions, nor did LAUSD provide adequate information to charter schools, CCSA [California Charter Schools Association], the public, or even LAUSD's own board to understand the reasons for these major funding reductions," the complaint states. The association seeks declaratory judgment, rescission of the funding cuts, and an injunction ordering the school district to comply with the Public Records Act. Defendants include the Board of Education and new superintendent Michelle King. The association is represented by James Arnone of Latham & Watkins. LAUSD did not immediately respond to a request for comment. LAS VEGAS SANDS: Must Produce Financial Docs in "Fosbre" Suit ------------------------------------------------------------- Magistrate Judge George Foley, Jr. of the United States District Court for the District of Nevada granted Plaintiff's sealed motion to compel production of financial documents in the case captioned, FRANK J. FOSBRE, JR., Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. LAS VEGAS SANDS CORP., et al., Defendants, Case Nos. 2:10-CV-00765-APG-GFW CONSOLIDATED WITH 2:10-CV-01210-APG-GWF (D. Nev.). Plaintiffs allege in the securities class action lawsuit, brought on behalf of purchasers of common stock of Las Vegas Sands Corporation between August 2, 2007 and November 5, 2008, that Defendants LVS, Sheldon G. Adelson and William P. Weidner repeatedly made false and misleading statements to the market that caused the price of LVS stock to trade at artificially-inflated prices. Plaintiffs allege that during the Class Period, Defendants were well aware that LVS had a severe liquidity crisis and that due to inadequate funding, LVS was running out of money and would have to halt construction of projects by the third quarter of 2008. Plaintiffs allege that by the end of the Class Period Defendants were forced to reveal to the public that LVS had been facing a severe liquidity crisis for many months, had run out of money, would have to halt most of its ongoing construction projects and needed an emergency infusion of cash to avoid bankruptcy. As LVS began to collapse due the liquidity crisis, its stock price declined precipitously. LVS's stock, which was trading as high as $140 a share during the Class Period, declined to $10 a share at the end of the Class Period once investors understood the true liquidity picture and the reduced earnings ability of LVS. In the motion, Plaintiffs seek to compel production of financial documents of Defendant Sheldon Adelson and his family. Defendants objected to these requests as overbroad, unduly burdensome, not relevant to the claims or defenses of any party, and not reasonably calculated to lead to the discovery of admissible evidence. In her Order dated January 5, 2016 available at http://is.gd/Y3Ri97from Leagle.com, Judge Foley, Jr. found that the information sought by Plaintiffs in Request Nos. 21-24 is relevant to the claims alleged in the case and is reasonably calculated to lead to the discovery of admissible evidence. The Court also found that the files of Yasmin Lukatz may contain documents relevant to the claims in the lawsuit and that her files should therefore be searched for relevant documents. Frank J. Frosbe, Jr. is represented by Christopher D. Stewart, Esq. -- cstewart@rgrdlaw.com -- Steven Pepich, Esq. -- stevep@rgrdlaw.com -- Spencer A. Burkholz, Esq. -- spenceb@rgrdlaw.com -- ROBBINS GELLER RUDMAN & DOWD LLP Defendants are represented by Steve L. Morris, Esq. -- smorris@morrislawyers.com -- Raleigh C. Thompson, Esq. -- rthompson@morrislawyers.com -- MORRIS LAW GROUP, Courtney A. Hoffmann, Esq. -- david.hoffman@sidley.com & Walter C. Carlson, Esq. -- wcarlson@sidley.com -- SIDLEY AUSTIN LLP CEO Must Product Docs by Jan. 28 Mike Heuer, writing for Courthouse News Service, reported that U.S. Magistrate Judge George Foley Jr. issued a separate order granting lead plaintiff Frank J. Fosbre Jr.'s motion to compel relating to claims for lost EBITDA caused by lawsuits filed in 2006 and arising from a subcontractor's work during construction of the Palazzo. Foley's Jan. 14 order granted Fosbre's motion for in camera review of documents and threatens to appoint a special master if any irregularities are found. The judge ordered Sheldon Adelson, present CEO of Las Vegas Sands, and its former CEO William Weidner to produce documents they sought to protect under attorney-client privilege in a securities class action. "If in camera review of the foregoing documents indicates that defendants improperly asserted the attorney-client privilege in a manner that calls into question the reasonableness of their assertion of attorney-client privilege to the remaining documents, then the court will consider granting additional in camera review, which may include the appointment of a special master," Foley wrote. Fosbre accuses Adelson et al. of lying to investors about the financial state of Las Vegas Sands from 2007 to 2008, so that Adelson could protect his majority ownership of the Sands, while building the Palazzo casino in Las Vegas and a larger development in Macau. He seeks documents that were withheld or redacted due to claims of attorney-client privilege, but were disclosed to employees of investment firms Goldman Sachs and Jefferies; documents that did not involve legal advice; and documents presented during prior lawsuits with a subcontractor and arising from the construction of the Palazzo Resort Hotel Casino in 2006. Fosbre said that documents voluntarily shared with Goldman Sachs and Jefferies are not protected by attorney-client privilege. Adelson argued the investment firms' employees were the functional equivalent of Las Vegas Sands employees, and the communications are protected. "It is reasonably clear that Goldman Sachs acted in the role of financial advisor in the upper echelon of Las Vegas Sands' management . . . in providing different financing options and making recommendations to Las Vegas Sands as to which avenues to pursue," Foley wrote. Foley said Las Vegas Sands hired Jeffries specifically to "evaluate and render opinions to the non-management directors of the board of directors of Las Vegas Sands." The judge denied Fosbre's motion for documents pertaining to attorney-client communications involving employees of Goldman Sachs and Jefferies, but ordered Adelson et al. to submit logs describing the duties and roles of each Jefferies and Goldman Sachs employee to determine whether the communications are privileged and protected. Foley denied Fosbre's motion to compel production of an Oct. 18, 2008 report on subcontractor lawsuits arising from construction of the Palazzo. Foley granted a review of Las Vegas Sands documents from 2007 to 2008, including those relating to attorney Dylan Williams, who participated in discussions, but not in an attorney's capacity. Foley gave Adelson et al. until Jan. 28 to produce the documents. The case captioned, FRANK J. FOSBRE, JR., Individually and on Behalf of All Others Similarly Situated, Plaintiff, vs. LAS VEGAS SANDS CORP.,et al., Defendants. Case No. 2:10-cv-00765-APG-GWF Consolidated with: Case No. 2:10-cv-01210-APG-GWF (D. Nev.) LAZ PARKING: Faces "Smith Mendoza" Suit Over Wage Practices ----------------------------------------------------------- Dudley Smith-Mendoza on behalf of himself and all others similarly situated v. LAZ Parking Limited, LLC; Ultimate Parking, LLC LAZ Karp Associates LLC; Alan B. Lazowski individually Michael J. Kuziak, individually; and Jeffrey N. Karp, individually, Case no: 15 3691BLS (Mass. Super., December 7, 2015), alleges that the defendants caused and/or permitted its service employees to participate in a tip pool through which these employees remitted a portion of their tips for distribution to managers/supervisors; and that Defendants failed to pay their employees an hourly rate equal to minimum wage for all hours that they worked. LAZ provides valet parking services to third-party companies at multiple locations throughout Massachusetts. Ultimate provides valet parking services to third-party companies at multiple locations throughout Massachusetts. The Plaintiff is represented by: Robert Messinger, Esq Brook S. Lane, Esq. John P. Regan, Jr., Esq. REGAN, LANE & MESSINGER LLP 41 Winter Street, Fifth Floor Boston, MA 021 08 Phone: (857) 277-0902 Fax: (617) 778-9742 E-mail: rob@reganlanemessinger.com blane@reganlanemessinger.com john@reganlanemessinger.com LEUCADIA NATIONAL: All NY Cases over Jefferies Deal Dismissed ------------------------------------------------------------- Leucadia National 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, that as of November 2, 2015, all of the New York cases related to the Jefferies Group Inc. Acquisition were finally dismissed. Seven class-action lawsuits had been filed in New York and Delaware on behalf of a class consisting of Jefferies Group's stockholders concerning the transaction through which Jefferies Group Inc. became our wholly-owned subsidiary. The class actions named as defendants the Company, Jefferies Group, certain members of our board of directors, certain members of Jefferies Group's board of directors and, in certain of the actions, certain transaction-related subsidiaries. On October 31, 2014, the remaining defendants in the Delaware litigation entered into a settlement agreement with the plaintiffs in the Delaware litigation. While the defendants continue to deny each of the plaintiffs' claims and deny any liability, the defendants entered into the settlement solely to settle and resolve their disputes, to avoid the costs and risks of further litigation and to avoid further distractions to our management. The terms of that settlement agreement provide for an aggregate payment of $70.0 million to certain former equity holders of Jefferies Group Inc., other than the defendants and certain of their affiliates, along with attorneys' fees that were determined by the court to be $21.5 million. The settlement resolves all of the class-action claims in Delaware. As of November 2, 2015, all of the New York cases were finally dismissed. "We have made all payments on the $70.0 million aggregate settlement amount, and our insurers have covered the majority of the awarded attorneys' fees, all of which have been paid," the Company said. LEUCADIA NATIONAL: Settlement Underway in "Sykes" Case ------------------------------------------------------ The settlement Leucadia National Corporation reached with plaintiffs in the case, Sykes v. Mel Harris & Associates, LLC, remains pending, Leucadia 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. "We and certain of our subsidiaries and officers are named as defendants in a consumer class action captioned Sykes v. Mel Harris & Associates, LLC, et al., 9 Civ. 8486 (DC), in the United States District Court for the Southern District of New York," the Company said. The named defendants also include the Mel Harris law firm, certain individuals and members associated with the law firm, and a process server, Samserv, Inc. and certain of its employees. The complaint alleges that default judgments obtained by the law firm against approximately 124,000 individuals in New York courts with respect to consumer debt purchased by our subsidiaries violated the Fair Debt Collection Practices Act, the Racketeer Influenced and Corrupt Organizations Act, the New York General Business Law and the New York Judiciary Law (alleged only as to the law firm). The complaint seeks injunctive relief, declaratory relief and damages on behalf of the named plaintiffs and others similarly situated. "We asserted that we were an investor with respect to the subject purchased consumer debt and were regularly informed of the amounts received from debt collections, but otherwise had no involvement in any alleged illegal debt collection activities," the Company said. On December 29, 2010, the District Court denied defendants' motions to dismiss in part (including as to the claims made against Leucadia and its subsidiaries) and granted them in part (including as to certain of the claims made against Leucadia officers). On March 28, 2013, the Court certified a Rule 23(b)(2) class and a Rule 23(b)(3) class. On February 10, 2015, the Second Circuit affirmed the certification of these classes. None of these decisions addresses the ultimate merits of the case. "On March 18, 2015, we and plaintiffs executed a settlement agreement that provided additional detail regarding the terms of a settlement set out in a December 14, 2014 binding term sheet pursuant to which we expensed $3.2 million in the fourth quarter of 2014," the Company said. This amount is in addition to the $20.0 million previously accrued for this matter and the $22.8 million in deferred revenue. The settlement agreement will be submitted to the District Court for its approval upon completion of the drafting of related documents. LIBERTY SILVER: Court Approved $1-Mil. Pump-and-Dump Settlement --------------------------------------------------------------- Liberty Silver Corp. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2015, for the quarterly period ended September 30, 2015, that the U.S. District Court for the Southern District of Florida has approved the settlement of a class action lawsuit and dismissed with prejudice all claims against Liberty Silver, Geoffrey Browne, and William Tafuri. On September 12, 2013, the Company and certain of its current and former officers and directors (the "Liberty Silver Parties") were named as defendants in a proposed securities class action lawsuit filed against Robert Genovese, certain individuals alleged to have collaborated with Mr. Genovese, and an offshore investment firm allegedly controlled by Mr. Genovese (the "Action," Case No. 9:13- cv-80923-KLR, Stanaford v. Genovese et al.). The action alleged violations of the United States Securities Exchange Act of 1934 and rules thereunder relating to anomalous trading activity and fluctuations in the Company's share price from August through October 2012. On December 8, 2014, without in any way acknowledging any fault or liability, the Company reached a settlement in principle, providing for a payment of $1 million cash, to be paid by the Company's D&O insurance carriers. On August 17, 2015, with no admission of fault or liability by the Liberty Silver Parties, the Court approved the settlement class and fully and finally dismissed with prejudice all claims against Liberty Silver, Geoffrey Browne, and William Tafuri in the litigation. Although defendants continue to deny plaintiffs' allegations, the Company believed it was in the best interests of its stockholders to focus its attention on its business and put the matter behind it. As described in the Honorable Kenneth L. Ryskamp's Order entered on Feb. 11, 2015, denying a motion to dismiss, this case involved claims of a "pump-and-dump" scheme, in violation of Sec. 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. Sec. 78j(b), and Securities and Exchange Commission Rule lOb-S. Plaintiffs alleged that Defendants manipulated the common stock of Liberty Silver Corporation, a silver mining company. Plaintiff contended, through confidential witness testimony, that Defendants purchased millions of shares of Liberty Silver stock, "pumped" the price of the stock by publically issuing materially false or misleading statements through corrupt third-party promoters, and then "dumped" the stock by selling the shares at an artificially inflated price, which yielded millions in profit. LIFELOCK INC: $68MM Class Action Settlement Approved ---------------------------------------------------- Courthouse News Service reported that a federal judge in San Francisco approved a $68 million settlement, including $10.2 million in attorneys' fees, in a class action accusing Lifelock of failing to provide the ID theft protection it promised; this comes on top of a $100 million settlement with the FTC. The case captioned, NAPOLEON EBARLE, et al. Plaintiffs, v. LIFELOCK, INC., Defendant. Case No.15-cv-00258-HSG (N.D. Cal.) LONDON METAL EXCHANGE: Court Dismisses Zinc Antitrust Suit ---------------------------------------------------------- District Judge Katherine B. Forrest of the United States District Court for the Southern District of New York granted Defendants' motion to dismiss the complaint filed by Duncan Galvanizing Corporation et al. in the case captioned, In Re Zinc Antitrust Litigation, No. 14-cv-3728 (KBF)(S.D.N.Y.). Plaintiff Duncan Galvanizing Corporation filed the class action complaint on May 23, 2014, alleging antitrust conspiracy and monopolization claims against the London Metal Exchange Limited, LME Holdings Limited, Hong Kong Exchanges & Clearing Limited, Glencore Xstrata PLC, Glencore Ltd., Pacorini Metals USA, LLC, The Goldman Sachs Group, Inc., Metro International Trade Services LLC, and JPMorgan Chase & Company. Plaintiffs Oklahoma Steel and Wire Co., Inc., Iowa Steel and Wire Co., and Southwestern Wire, Inc., subsequently filed a complaint on June 13, 2014 and plaintiff Galvanizers Company filed on July 8, 2014 each making similar allegations to those made in Duncan Galvanizing's initial complaint. The Court held a joint initial pre-trial conference for all three actions on July 23, 2014, and directed plaintiffs to file a consolidated amended complaint no later than September 30, 2014. Plaintiffs filed their consolidated amended complaint on June 17, 2015 asserting one cause of action under Section 1 of the Sherman Act for combination and conspiracy in restraint of trade against all defendants, and three causes of action under Section 2 of the Sherman Act -- one claim for conspiracy to monopolize against all defendants, and claims for monopolization and attempted monopolization against defendants Glencore Ltd. and Pacorini Metals USA, LLC. Plaintiffs define their putative plaintiff class as "All persons with certain exclusions who, or entities which, purchased LME U.S. Zinc and paid the Platts Zinc MW SHG Premium or similar price premium in the United States from a primary zinc producer or a Defendant from May 24, 2010 to the present." Defendants moved to dismiss the complaint asserting that plaintiffs are neither direct consumers nor competitors of defendants, they cannot have experienced a competition reducing impact of defendants' conduct. But plaintiffs' theory of antitrust injury depends not on any single act, but rather on the aggregate impact of the acts. Defendants also argued that even if plaintiffs are able to allege injury to the competitive process, they have not alleged sufficient facts to demonstrate that they are efficient enforcers of the antitrust laws. Judge Forrest said defendants' motions to dismiss are granted. Counts I and II of the Consolidated Amended Complaint are dismissed with prejudice, while Counts III and IV are dismissed without prejudice. In her Opinion and Order dated January 7, 2016 available at http://is.gd/VCxQgNfrom Leagle.com, Judge Forrest concluded that Plaintiffs are simply too remote from that market to have antitrust standing to pursue a Section 2 claim based on anticompetitive conduct in that market, and thus, based on their current pleadings. Plaintiffs' allegation on defendants' involvement in a related aluminum conspiracy carries little weight without any finding of liability. The Court also found that plaintiffs have failed to plausibly allege unlawful concerted action or an anticompetitive agreement. Plaintiffs may attempt to re-plead Counts III and IV against Glencore Ltd. and/or Pacorini, but may not assert any amended claims against any of the other defendants. Should plaintiffs choose to replead Counts III and IV, they must file any amendment, redlined against the CAC, within 21 days of the filing of the Court's Opinion and Order. Plaintiffs are Duncan Galvanizing Corporation, Galvanizers Company, Oklahoma Steel and Wire Co., Inc., Iowa Steel and Wire Co., Southwestern Wire, Inc., Galvanizers Company, and Jasper Materials, Inc. Defendants are The London Metal Exchange Limited, Glencore Ltd., Pacorini Metals USA LLC., The Goldman Sachs Group Inc., Metro International Trade Services LLC, JPMorgan Chase & Company, Goldman Sachs International, GS Power Holdings LLC, J.P. Morgan Ventures Energy Corporation, Mitsi Holdings LLC, JP Morgan Securities plc f/k/a JP Morgan Securities Ltd., Henry Bath LLC, and MCEPF Metro I, Inc. Plaintiffs are represented by Christopher Lovell, Esq. -- CLovell@lshllp.com -- Benjamin Martin Jaccarino, Esq. -- BJaccarino@lshllp.com -- LOVELL STEWART HALEBIAN JACOBSON LLP, Kimberly A. Justice, Esq. -- kjustice@ktmc.com -- KESSLER TOPAZ MELTZER & CHECK, LLP, Linda P. Nussbaum, Esq. -- lnussbaum@nussbaumpc.com -- Bradley J. Demuth, Esq. -- bdemuth@nussbaumpc.com -- NUSSBAUM LAW GROUP, P.C. Glencore Ltd., is represented by Chelsea Rebekah McLean, Esq. -- Chelsea.mclean@curtis.com -- Eliot Lauer, Esq. -- eliot.lauer@curtis.com -- Jacques Semmelman, Esq. -- jacques.semmelman@curtis.com -- CURTIS, MALLET-PREVOST, COLT AND MOSLE LLP LOS ANGELES, CA: Suit Alleges Municipal Code Violations ------------------------------------------------------- Grigor Changryan, and all others similarly situated v. City of Los Angeles, Department of Transportation of the City of Los Angeles and Does 1 through 50, Case No. BC603693 (Cal. Super., December 8, 2015), seeks damages against the Defendants for violations of the Los Angeles Municipal Code. The Plaintiff brings this action individually, and on behalf of all other similarly situated individuals who have been charged a fee for parking vehicles in the metered spaces in the City of Los Angeles at times when the parking was to be free, because of the acts and/or omissions of Defendants. The City of Los Angeles is a municipal corporation organized and existing under the laws of the State of California and located within the borders of the State of California. The Plaintiff is represented by: Hovanes Margarian, Esq. THE MARGARIAN LAW FIRM 801 N. Brand Blvd., Suite 210 Glendale, CA 91203 Tel: (818) 553-1000 Fax: (818) 553-1005 MAJOR LEAGUE BASEBALL: Deal Reached in Suit over Games Black Out ---------------------------------------------------------------- Adam Klasfeld, writing for Courthouse News Services, reported that reaching an 11th hour deal, Major League Baseball reportedly averted a trial in Manhattan from fans who complained that its deals with DirecTV and Comcast made them pay more to watch ball games. In 2012, Oakland resident Fernanda Garber sued the league in one of a series of class-action lawsuits filed by baseball and hockey fans. Viewers complained in both cases that the leagues conspired with distributors to black out games, prevent them from watching their favorite teams, or force them to pay more to watch "out-of- market" match-ups. Under the current system, a Yankees fan in Brooklyn would have to purchase the YES Network to watch local games, whereas a Yankees fan in Iowa would have to purchase an out-of-market package that would include all baseball games. Most out-of-market games are available only via national broadcasts, or through the out-of-market packages sold through Comcast and DirectTV. U.S. District Judge Shira Scheindlin certified both cases as class actions in May 2015. The case against the National Hockey League settled in September, but Major League Baseball had been heading for trial this morning until attorneys announced a settlement, the Associated Press reported today. No information about the terms have hit the public docket, and attorneys for both of the parties have not yet responded to a request for comment. MAXPOINT INTERACTIVE: Amended Complaint Filed in Investor Lawsuit ----------------------------------------------------------------- A class action case against Maxpoint Interactive, Inc. is still in its initial stage and a lead plaintiff has not yet been appointed, the Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2015, for the quarterly period ended September 30, 2015. "We, certain of our officers and directors, and certain investment banking firms who acted as underwriters in connection with our initial public offering, have been named as defendants in a putative class action lawsuit filed August 31, 2015 in the United States District Court for the Southern District of New York," the Company said. "The complaint alleges that the defendants violated Sections 11 and 15 of the Securities Act by not including information regarding customer concentration, which the complaint characterizes as a known trend required to be disclosed under Item 303 of Regulation S-K (17 C.F.R. Sec. 229.303), in the Registration Statement filed in connection with our initial public offering. The complaint seeks unspecified damages, interest and other costs. The case is still in its initial stage and a lead plaintiff has not yet been appointed. We dispute these claims and intend to defend this matter vigorously." The case is Nguyen v. MaxPoint Interactive Inc. et al., Case No. 1:15-cv-06880 (S.D.N.Y.). The plaintiffs filed their First Amended Complaint on Jan. 19, 2016. MDL 1827: Court Grants Distribution of Residual Settlement Funds ---------------------------------------------------------------- District Judge Susan Illston of the U.S. District Court for the Northern District of California authorized the distribution of residual settlement funds in the case captioned, IN RE TFT-LCD (FLAT PANEL) ANTITRUST LITIGATION, MDL No. 1827. This Document Relates to: Indirect-Purchaser Class Action; State of Missouri, et al. v. AU Optronics Corporation, et al., Case No. 10-cv-3619; State of Florida v. AU Optronics Corporation, et al., Case No. 10- cv-3517; and State of New York v. AU Optronics Corporation, et al., Case No. 11-cv-0711, Case No. 3:07-MD-1827 SI (N.D. Cal.). Having reviewed the joint status report and recommendation submitted by Class Counsel for the Indirect-Purchaser Plaintiffs and the Attorneys General of the States of Arkansas, California, Florida, Michigan, Missouri, New York, West Virginia, and Wisconsin, and good cause appearing, Judge Illston, in her Order dated January 4, 2016 available at http://is.gd/PTggRLfrom Leagle.com, ruled that: (1) Rust shall make a total additional distribution of $2,125,026.74 to timely-filed but underpaid or unpaid claims as specified in paragraph 9 of Rust's declaration; (2) Rust shall distribute payments to the 119 claims with claims that were filed between June 7, 2014 and October 6, 2014 at the pro rata amount of $4.57 per panel equivalent; (3) Rust shall promptly distribute the remaining shares of the uncashed payments to eligible claimants and void all uncashed payments 30 days after final re-issuance of payments are mailed; (4) A total of $506, 634.18 shall be deducted from each settling defendant's Settlement Fund to pay Rust's costs of claims administration; and (5) The remaining balance of funds in the demand-deposit account shall be retained for additional costs as they are incurred. Plaintiffs are represented by: Samuel W. Lanham, Jr., Esq. LANHAM & BLACKWELL 133 Broadway Bangor, ME 04401 Tel: (207)942-2898 - and - Ian Otto, Esq. STRAUS & BOIES LLP 559 Pilgrim Dr Ste D Foster City, CA 94404 Tel: (650)781-3162 Defendants are represented by John E. Hall, Esq. -- jhall@cov.com -- Daniel M. Suleiman, Esq. -- dsuleiman@cov.com -- Elizabeth Catherine Arens, Esq. -- earens@cov.com -- Jeffrey Michael Davidson, Esq. -- jdavidson@cov.com -- John Stewart Playforth, Esq. -- jplayforth@cov.com -- Neil K. Roman, Esq. -- nroman@cov.com -- Robert D. Wick, Esq. -- rwick@cov.com --- Steven D. Sassaman, Esq. -- ssassaman@cov.com & Timothy C. Hester, Esq. -- thester@cov.com -- COVINGTON & BURLING & Christopher Alan Nedeau, Esq. -- cnedeau@nossaman.com -- NOSSAMAN LLP MDL 2084: Patent Litigation Settlement Claims in Discovery ---------------------------------------------------------- AbbVie 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 claims regarding a patent litigation settlement are proceeding in discovery in district court. Several pending lawsuits filed against Unimed Pharmaceuticals, Inc., Solvay Pharmaceuticals, Inc. (a company Abbott acquired in February 2010 and now known as AbbVie Products LLC) and others are consolidated for pre-trial purposes in the United States District Court for the Northern District of Georgia under the Multi- District Litigation (MDL) Rules as In re: AndroGel Antitrust Litigation, MDL No. 2084. These cases, brought by private plaintiffs and the Federal Trade Commission (FTC), generally allege Solvay's 2006 patent litigation involving AndroGel(R) was sham litigation and the patent litigation settlement agreement and related agreements with three generic companies violate federal and state antitrust laws and state consumer protection and unjust enrichment laws. Plaintiffs generally seek monetary damages and/or injunctive relief and attorneys' fees. MDL No. 2084 includes: (a) four individual plaintiff lawsuits; (b) six purported class actions; and (c) Federal Trade Commission v. Watson Pharmaceuticals, Inc. et al. Following the district court's dismissal of all plaintiffs' claims, appellate proceedings led to the reinstatement of the claims regarding the patent litigation settlement, which are proceeding in discovery in the district court. The Attorney General of the State of Alaska has served AbbVie with a Civil Investigative Demand, primarily seeking documents that AbbVie produced in these lawsuits. MDL 2460: AbbVie Continues to Defend Niaspan(R) Purchaser Claims ---------------------------------------------------------------- AbbVie 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 lawsuits are pending against AbbVie and others generally alleging that the 2005 patent litigation settlement involving Niaspan(R) entered into between Kos Pharmaceuticals, Inc. (a company acquired by Abbott in 2006 and presently a subsidiary of AbbVie) and a generic company violates federal and state antitrust laws and state unfair and deceptive trade practices and unjust enrichment laws. Plaintiffs generally seek monetary damages and/or injunctive relief and attorneys' fees. The lawsuits consist of two individual plaintiff lawsuits and two consolidated purported class actions: one brought by three named direct purchasers of Niaspan(R) and the other brought by ten named end-payor purchasers of Niaspan(R). The cases are consolidated for pre-trial proceedings in the United States District Court for the Eastern District of Pennsylvania under the MDL Rules as In re: Niaspan Antitrust Litigation, MDL No. 2460. The office of the Attorney General of the State of Alaska has served AbbVie with a Civil Investigative Demand, primarily seeking documents that AbbVie produced in this lawsuit. MDL 2545: 1,600 Cases Consolidated for Pre-Trial Purposes --------------------------------------------------------- AbbVie 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 product liability cases are pending in which plaintiffs generally allege that AbbVie and other manufacturers of testosterone replacement therapies (TRTs) did not adequately warn about risks of certain injuries, primarily heart attacks, strokes and blood clots. Approximately 1,600 cases are consolidated for pre-trial purposes in the United States District Court for the Northern District of Illinois under the MDL Rules as In re: Testosterone Replacement Therapy Products Liability Litigation, MDL No. 2545. Approximately 70 cases are pending in various state courts. Plaintiffs seek compensatory and punitive damages. MMA CAPITAL: Court Dismissed Investor Class Suit After Settlement ----------------------------------------------------------------- MMA Capital Management, LLC said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2015, for the quarterly period ended September 30, 2015, that a Maryland court has entered an order dismissing a class action case in light of the parties' settlement. The Company was a defendant in a purported class action lawsuit originally filed in 2008. The plaintiffs claimed to represent a class of investors in the Company's shares who allegedly were injured by misstatements in press releases and SEC filings between May 3, 2004 and January 28, 2008. The plaintiffs sought unspecified damages for themselves and the shareholders of the class they purported to represent. The class action lawsuit was brought in the United States District Court for the District of Maryland. The Company filed a motion to dismiss the class action, and in June 2012, the Court issued a ruling dismissing all of the counts alleging any knowing or intentional wrongdoing by the Company or its affiliates, directors and officers. The plaintiffs appealed the Court's ruling and on March 7, 2014, the United States Court of Appeals for the Fourth Circuit unanimously affirmed the lower Court's ruling. As a result of these rulings, the only counts remaining in the class action related to the Company's dividend reinvestment plan. The parties negotiated a settlement agreement, which was submitted to the United States District Court for the Districted of Maryland for approval. On September 24, 2015, the Court approved the settlement agreement. On September 25, 2015, the court entered an order dismissing the case in light of the settlement. The settlement provides for a maximum of $826,820 to cover payments to the class as well as the attorneys for the plaintiffs' counsel. The settlement is a claims-made settlement, in which payments will be made only to those plaintiffs who submit a claim and whose claim is approved, thus the final settlement amount to the class could be less than the amount stated. The Company will not incur any settlement costs, as all costs, including both class payments and plaintiffs' attorneys' fees, will be paid directly by its insurance company. As a result, the Company released the litigation reserve of $0.5 million during the first quarter of 2015. MORTGAGE INVESTORS: Court Grants Final Approval of "Ott" Deal ------------------------------------------------------------- Magistrate Judge Janice M. Stewart of the United States District Court for the District of Oregon granted Plaintiffs' Motion for Final Approval of Class Action Settlement and Motion for an Award of Fees and Approval of Service Awards in Connection with the Settlement in the case captioned, KELLY OTT and BENJAMIN GESLER, on behalf of themselves and all others similarly situated, and NANCY LUEBBEN, Plaintiffs, v. MORTGAGE INVESTORS CORPORATION OF OHIO, INC., an Ohio corporation also doing business as MORTGAGE INVESTORS CORPORATION, AMERIGROUP MORTGAGE CORPORATION, VETERANS INFORMATION DEPARTMENT and VETERANS HOME LOANS, Defendants, Case No. 3:14-CV-00645 ST (D. Or.). Plaintiffs filed this class action on April 18, 2014, alleging violations by defendants of the Telephone Consumer Protection Act, by means of a nationwide telemarketing scheme targeted at U.S. military veterans. In July 2015, plaintiffs sought this court's preliminary approval of a Settlement Agreement. The Settlement Agreement requires Mortgage Investors Corporation of Ohio, Inc. (MIC), to pay $7,483,600 into a Settlement Fund to cover: (1) cash awards to settlement class members who submit claims; (2) court- approved attorney fees up to $1,870,900; (3) court-approved litigation expenses up to $147,063; (4) notice and claims administration costs of $1,190,000; and (5) incentive awards of $5,000 each to the two class representatives. If any amounts remain in the Settlement Fund as a result of uncashed checks, those funds will be disbursed "cy pres" in equal parts to: (1) Veterans Airlift Command, a non-profit charitable organization that provides free air transportation to wounded in combat and their families for medical and other compassionate purposes; and (2) Consumer Federation of America, a pro-consumer advocacy organization. No funds from the settlement will revert to MIC. On July 20, 2015, the court granted preliminary approval of the Settlement Agreement and set a final approval hearing on November 24, 2015. Plaintiffs then sent a notice of the proposed settlement to class members and filed a Motion for Final Approval of Class Action Settlement. At the hearing, Class Counsel advised that the settlement class contains 3,552,434 members, 3,080,000 of whom received direct notice of the settlement. Of those class members who received notice, none objected to the settlement, only 52 opted out, and 30,289 had submitted claims. Class Counsel estimates that each claimant will receive approximately $140.86. In the motion, Class Counsel seeks an award of attorney fees of $1,870,900, representing 25% of the Settlement Fund, plus out-of- pocket expenses up to $147,063, and also seeking service awards of $5,000 each to plaintiffs Ott and Gesler. In her Opinion and Order dated January 5, 2016 available at http://is.gd/eWMZSwfrom Leagle.com, Judge Stewart concluded that all factors strongly favor final approval of the Settlement Agreement finding the settlement as a whole, is fair, reasonable and adequate to all concerned. The Court also concluded that the requested attorney fee award is not unreasonable. Plaintiffs are represented by Blythe H. Chandler, Esq. -- bchandler@terrellmarshall.com -- Samuel J. Strauss, Esq. -- sstrauss@terrellmarshall.com -- Beth E. Terrell, Esq. -- bterrell@terrellmarshall.com -- Jennifer Rust Murray, Esq. -- jmurray@terrellmarshall.com -- TERRELL MARSHALL DAUDT & WILLIE PLLC Mortgage Investors Corporation is represented by John Huh, Esq. -- john.huh@dlapiper.com -- Lesli C. Esposito, Esq. -- lesli.esposito@dlapiper.com -- Nicole M. Tadano, Esq. -- nicole.tadano@dlapiper.com -- Stellman Keehnel, Esq. -- stellman.keehnel@dlapiper.com -- DLA PIPER LLP MSG HOLDINGS: Class Counsel Named in FlSA Suit; Settlement Tossed ----------------------------------------------------------------- Magistrate Judge Henry Pitman of the United States District Court for the Southern District of New York appointed class counsel and denied all the remaining motions, including a request for approval of a settlement agreement, without prejudice in the case captioned, CHRISTOPHER FRATICELLI, individually and on behalf of other persons similarly situated who were employed by MSG HOLDINGS, L.P. and THE MADISON SQUARE GARDEN COMPANY and/or any other entities affiliated with or controlled by MSG HOLDINGS, L.P. and THE MADISON SQUARE GARDEN COMPANY, Plaintiff, v. MSG HOLDINGS, L.P. and THE MADISON SQUARE GARDEN COMPANY, and/or any other entities affiliated with or controlled by MSG HOLDINGS, L.P. and THE MADISON SQUARE GARDEN COMPANY, Defendants, Case No. 6518 (HBP) (S.D.N.Y.). Virginia & Ambinder, LLP and Leeds Brown Law, P.C. are named as class counsel. Plaintiffs brought the putative class and collective action under the Fair Labor Standards Act, the New York Labor Law and 12 New York Codes, Rules and Regulations, Section 142-2.1, to recover unpaid minimum and overtime wages. Plaintiffs worked for defendants as unpaid interns in various departments; they allege that they were uniformly misclassified by defendants as exempt from the federal and state minimum wage and overtime requirements. The parties thereafter engaged in settlement negotiations for several months and eventually reached a settlement. The proposed settlement covers two overlapping groups of plaintiffs: (1) "individuals who were Interns for MSG Holdings, L.P. during the period from September 5, 2011 through the date of the Preliminary Approval Order"; and (2) "individuals who were Interns for MSG Holdings, L.P. in a location in the State of New York according to MSG records from September 16, 2007 through the date of the Preliminary Approval Order." Plaintiffs moved for (1) preliminary approval of the parties' proposed settlement agreement; (2) conditional certification pursuant to Fed. R. Civ. P. 23(e) of a New York class of interns who worked for defendants from September 16, 2007 through the date of the preliminary approval order; (3) appointment of Virginia & Ambinder, LLP and Leeds Brown Law, P.C. as class counsel; (4) approval of a proposed notice of (a) class action settlement, (b) collective action settlement and (c) fairness hearing and (5) an order directing the distribution of the proposed notice. In his Opinion and Order dated December 10, 2015 available at http://is.gd/KZGUnqfrom Leagle.com, Judge Pitman appointed the firms of Virginia & Ambinder, LLP and Leeds Brown Law, P.C. as class counsel because they routinely represent plaintiffs in employment litigation in the District and have appeared in many FLSA and state labor law cases. The Court denied all remaining motions because plaintiffs have failed to demonstrate that all of the relevant factors demonstrate the reasonableness of the settlement and there is no evidence or reason to believe that there is any conflict of interest between the named plaintiffs and the other members of the class. Plaintiffs are represented by Lloyd Robert Ambinder, Esq. -- lambinder@vandallp.com -- Charles R. Virginia, Esq. -- cvirginia@vandallp.com -- LaDonna Marie Lusher, Esq. -- llusher@vandallp.com -- Suzanne Brooke Klein, Esq. -- sleeds@vandallp.com -- VIRGINIA & AMBINDER, LLP - and - Daniel Harris Markowitz, Esq. Michael Alexander Tompkins, Esq. LEEDS BROWN LAW PC 5 Penn Plaza, Suite 2320 New York, NY 10001 Tel: (800)585-4658 Defendants are represented by Ira G. Rosenstein, Esq. -- irosenstein@morganlewis.com -- Sam Scott Shaulson, Esq. -- sshaulson@morganlewis.com -- MORGAN LEWIS & BOCKIUS LLP MUGSHOTS.COM: Faces Class Suit in Chicago ----------------------------------------- Lisa Klein, writing for Courthouse News Service, reported that the same people at mugshots.com are also behind unpublisharrest.com, forcing former arrestees to pay up if they want any hope of rejoining society, a class claims in Chicago court. Two men paroled in Illinois, Peter Gabiola and Antonio Hammond, filed the complaint Jan. 21 in Cook County Circuit Court taking aim at a constellation of businesses they say are "unilaterally punishing people for years -- or longer -- after an arrest." Though the Illinois Department of Corrections website is legally required to remove the information of inmates who are paroled after completing their sentences, Gabiola and Hammond say the defendants manage to scrape such information off the website and then cobble it together for incriminating posts complete with photos. This system is designed to "coerce arrestees to pay for the removal or correction of that information," according to the complaint. Former arrestees can allegedly pay a fee to a sister website of mugshots.com, in the range of $398 to $2,000, to have their record unpublished, yet guarantees are lacking. "People desperate to get a job, and unable to do so because of web search results defendants create, can pay defendants hundreds or thousands of dollars for only partial relief," the complaint states. Mugshots.com posts indicate that the arrestees are still charged, incarcerated or on parole, after they are released or found not guilty, and the site "takes little or no action to correct false or inaccurate information," according to the complaint. Former arrestees say mugshots.com and its sister websites, UnpublishArrest.com and UnpublishingPartners.com, "profit by creating obstacles to the normal lives of everyday people and to the rehabilitation of ex-arrestees." Mugshots.com also uses "analytics and search optimization to ensure that their site is among the first results found" when a name is entered into a search engine like Google, the parolees say. Stuart Clarke -- sclarke@bnrpc.com -- an attorney for the plaintiffs at Berton N. Ring PC in Chicago, called it "odious" that these defendants are "trying to take money from people who are down on their luck." Their business model is simply "a way to make money off the backs of people who don't have that money," Clarke added. Though mugshots.com maintains that it is not affiliated with the other two sites, the complaint says all three are owned, operated and staffed by the same people. An operator for the toll-free number at unpublisharrest.com, the same number found on mugshots.com, told Courthouse News that the two were not the same company. According to the complaint, the companies behind the websites use IP-masking technology and sham company names to "create the appearance of separation." Mugshots.com allegedly says Gabiola is still on parole, though Gabiola exited parole in July 2012. Gabiola says he was let go from his job at a sales and marketing company on the first day after his mug shot and incorrect arrest information was found on the website. He was passed up for at least two other jobs after that. When he called Unpublisharrest.com, an operator told Gabiola it would cost $15,000 to remove everything about him from Mugshots.com, with no guarantee that it would all be gone, according to the complaint. Mugshots.com meanwhile has five pages about Hammond, the other named plaintiffs, who says he cannot find work and thus cannot afford the $1,000 per page he was told it would cost to remove his information. Clarke says his firm believes the "entire purpose of the criminal justice system is rehabilitation," and websites like these are "essentially a roadblock to that." The complaint counts 457,000 Illinois residents with entries on Mugshots.com. Clarke says he "believe this group of websites is the largest player in the industry." As part of a settlement agreement in Ohio in January 2014, the company that runs the similar websites BustedMugshots.com and MugshotsOnline.com had to stop charging to remove photos from their sites. It also had to pay $7,500 to those that sued and remove their pictures from the sites. Passage of the Mugshots Act three years ago in Illinois made it unlawful for anyone who publishes criminal record information to solicit payment to remove or correct the information. The class is suing for violations of the Illinois Mugshots Act, the Illinois Right of Publicity Act, the Federal Fair Credit Reporting Act and consumer fraud. Jon Smith, a representative of Mugshots.com, said in response to a request sent through its website that the lawsuit was dismissed last week. Clarke noted that the Cook County lawsuit is a refiling of a federal complaint. NATIONAL COLLEGIATE: Sues Insurers for Litigation Costs ------------------------------------------------------- Lorraine Bailey, writing for Courthouse News Service, reported that beset by numerous lawsuits from student-athletes seeking more compensation for their play, the NCAA is suing its insurers for litigation costs in Chicago. In a complaint filed in the Marion Superior Court in Indiana, the NCAA says its insurers -- the Federal Insurance Company, Illinois National Insurance Company, Westchester Fire Insurance Company, and XL Specialty Insurance Company -- have a duty to cover the costs associated with its various defenses. The NCAA purchased insurance policies related to pending actions against it in 2005, and them again in 2012, the lawsuit says. The association faces a number of pending major lawsuits from student-athletes who want more compensation for their play. One involves three certified classes of NCAA student-athletes, and challenges the association's rules capping the amount of compensation and benefits the players can earn while enrolled in college. The other claims the NCAA and Division I schools violate the Fair Labor Standards Act by failing to pay student-athletes at least minimum wage. The NCAA seeks to recover defense costs spent litigating these lawsuits, but its insurers claim that both suits "are so similar to allegations made in a previous suit as to be 'related wrongful acts' as defined under the 2012-2014 policies, and thus coverage is only provided, if at all, under the 2005-2006 policies." This previous suit is unnamed in the complaint, but likely refers to that led by former basketball star Ed O'Bannon, and sought cash compensation for players, not just tuition coverage. A divided Ninth Circuit panel ruled for the NCAA last year, finding that "not paying student-athletes [in cash] is precisely what makes them amateurs." O'Bannon's motion for en banc rehearing remains pending. The association seeks court intervention to clarify the insurer's obligation to pay the NCAA's defense costs. It is represented by George Plews with Plew, Shadley, Racher & Brown LLP in Indianapolis. Plews declined to comment on the case, and deferred to NCAA counsel Scott Bearby, who did not immediately respond to a telephone and emailed request for comment. NATIONAL FOOTBALL: 3rd Cir. Tosses Suit over Super Bowl Tickets --------------------------------------------------------------- Andrew Thompson, writing for Courthouse News Services, that calling Super Bowl tickets the ultimate example of an event where demand far exceeds supply, the U.S. Court of Appeals for the Third Circuit in Philadelphia spiked a fraud class action on Jan. 14. Josh Finkelman and Ben Hoch-Parker brought the case at hand in New Jersey after their experience trying to attend Super Bowl XLVIII in 2014 between the Denver Broncos and Seattle Seahawks. While Finkelman bought two tickets in the secondary market at $2,000 each, Hoch-Parker ended up not buying any tickets because the cheapest seat he could find would have set him back $4,200. In reporting on the early ticket sales back in 20113, the Wall Street Journal said the nosebleed seats were going for $500 but that tickets otherwise saw a massive hike in price. Tickets averaged that year at $2,646. Finkelman and Hoch-Parker complained that the NFL made only 1 percent of tickets with a face value of $800 to $1,900 available to the general public, distributing the rest among NFL franchises that can distribute them as they wish, including selling them to secondary markets. A federal judge wound up dismissing their case, which alleged violation of a New Jersey law that bars event hosts from withholding more than 5 percent of their tickets from sale to the general public. On July 14, a three-judge panel of the Third Circuit affirmed. "To state the problem succinctly: we have no way of knowing whether the NFL's withholding of tickets would have had the effect of increasing or decreasing prices on the secondary market," Judge Julio Fuentes wrote for the court. "We can only speculate - and speculation is not enough to sustain Article III standing." As for the "rarely litigated New Jersey statute" on which the fans relied, Fuentes said it had apparently only been used once in state courts since its 2002 passage. The 39-page opinion notes that both of plaintiffs admitted that they had not entered the league's lottery to purchase tickets at face value. Fuentes likened the situation to concertgoers who sue for inflated ticket prices without having waited in line. Hoch-Parker made much ado about a $1,000 limit he did not want to exceed per ticket, but Fuentes noted that his threshold would have in reach even if the NFL had released all tickets to the public. "Thus, while it might be the case that the NFL's withholding increased ticket prices on the resale market, it might also be the case that it had no effect on the resale market," Fuentes wrote. The court called Hoch-Parker's lack of standing particularly striking, as he bought no tickets and therefore "suffered no more injury than any of the possibly tens of thousands of people who thought about purchasing a ticket to the Super Bowl and chose not to." The case captioned, JOSH FINKELMAN; BEN HOCH-PARKER On Behalf of Themselves and the Putative Class, Appellants v. NATIONAL FOOTBALL LEAGUE; NFL VENTURES, L.P.; NFL PROPERTIES, LLC; NFL VENTURES, INC.; NFL ENTERPRISES LLC, No. 15-1435 (3rd Cir.) NATIONAL PENN: Settlement Reached in Pa. Shareholder Litigation --------------------------------------------------------------- National Penn Bancshares, Inc. said in its Form 8-K Report filed with the Securities and Exchange Commission on November 13, 2015, that the Company and BB&T Corporation ("BB&T") on November 10, 2015, entered into a memorandum of understanding with plaintiffs regarding the settlement of a putative consolidated class action captioned In re National Penn Bancshares, Inc. Shareholder Litigation, Lead Case No. 2015-C-2807 (the "Actions"), pending before the Court of Common Pleas of Lehigh County, Pennsylvania (the "Court"). The Actions relate to the Agreement and Plan of Merger, dated as of August 17, 2015, by and between BB&T and National Penn. Pursuant to the memorandum of understanding, National Penn and BB&T agreed to make available additional information to National Penn shareholders. The additional information is contained in the supplement (the "Supplement") to the Proxy Statement/Prospectus of BB&T and National Penn, dated October 23, 2015 and filed with the U.S. Securities and Exchange Commission (the "SEC") on October 23, 2015 (the "Proxy Statement/Prospectus") attached as Exhibit 99.1 hereto. The Supplement should be read in conjunction with the Proxy Statement/Prospectus and the documents incorporated by reference therein. After reaching agreement on the substantive terms of the settlement, the parties also agreed that the plaintiffs may apply to the Court for an award of reasonable attorneys' fees, costs and expenses to be paid by National Penn, its successor in interest and/or its insurer. National Penn, BB&T, and the other defendants deny all of the allegations made by plaintiffs in the Actions and believe the disclosures in the Proxy Statement/Prospectus are adequate under the law. Nevertheless, National Penn, BB&T, and the other defendants have agreed to settle the Actions in order to avoid the costs, disruption, and distraction of further litigation. NEIL JONES FOOD: Court Denies Preliminary Approval of Settlement ---------------------------------------------------------------- Senior District Judge Anthony W. Ishii of the United States District Court for the Eastern District of California denied preliminary approval of class settlement in the case captioned, LUIS VALDEZ, et al., Plaintiffs, v. THE NEIL JONES FOOD COMPANY, et al., Defendants, Case No. 1:13-CV-00519-AWI-SAB (E.D. Cal.). On December 3, 2015, the Court identified three concerns regarding the parties proposed settlement agreement: (1) the reversion, (2) the claims process, and (3) that the attorney fee request in this claims-made settlement is based on the maximum settlement amount. The Court permitted the parties to submit supplemental briefing to address those issues. Both parties filed supplemental briefing on December 17, 2015. Class counsel has responded to the Court's concerns surrounding the attorney fee award noting that the fee award requested has been lowered from 33% to 28%. Class counsel also contended that reduction of fees based on the monetary award to the class is inappropriate in the instance because the reversion to Defendant benefits the class. In his Order dated December 24, 2015 available at http://is.gd/O13txXfrom Leagle.com, Judge Ishii concluded that the agreement falls outside of the range of possible approval because the parties' supplemental briefing has done nothing to quell the Court's concerns that the agreement appears to be a product of the self-interest of the parties and their representatives to the detriment of the class members. The Court disagrees that the reversion proposed by the agreement is meaningfully different from a typical reversion. The Court will not consider the reversionary amount as a benefit to the class in determining the level of success obtained by counsel. Plaintiffs are represented by: Dennis Patrick Wilson, Esq. LAW OFFICES OF DENNIS P. WILSON 3322 W Victory Blvd Burbank, CA 91505 Tel: (818)843-1788 The Neil Jones Food Co. is represented by Andrea Bednarova, Esq. -- abednarova@fosteremploymentlaw.com -- Michael Eugene Wilbur, Esq. -- mwilbur@fosteremploymentlaw.com -- FOSTER EMPLOYMENT LAW NEVADA PROPERTY 1: Wrapping Up $7-Mil. Nev. Wage & Hour Settlement ------------------------------------------------------------------ Nevada Property 1 LLC said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2015, for the quarterly period ended September 30, 2015, that a final hearing was set for December 4, 2015, to approve the settlement in a wage and hour class action lawsuit. During late 2012, the Company was put on notice and/or served with two separate purported class action lawsuits related to alleged unpaid compensation for time incurred by CoStars while on Property for donning and doffing of the CoStars' required uniform, alleged improper rounding of time for hours worked and various other claims related to alleged unpaid compensation. One of the purported wage and hour class action lawsuits is pending in the Eighth Judicial District Court for Clark County, Nevada ("Nevada State Court"), and one is pending in the U.S. District Court for the District of Nevada. In early April 2015, the Company commenced arms-length settlement negotiations leading to an agreement in principle to resolve both the Nevada State Court and the U.S. District Court lawsuits. The proposed resolution includes an anticipated total net payment of approximately $7.0 million inclusive of the opposing counsel fees and all costs of administering the settlement. After such expenses are paid, the remaining amount will comprise a settlement fund. Of this amount the Company will pay out only that portion actually claimed by putative class members. The proposed settlement is subject to approval by the courts. The Company recorded the $7.0 million anticipated net settlement amount in the consolidated financial statements during the period ended March 31, 2015. As of September 30, 2015, a settlement agreement is in place. A final approval hearing was set for December 4, 2015. NEVADA PROPERTY 1: Marching Toward $14.5-Mil. Calif. Settlement --------------------------------------------------------------- Nevada Property 1 LLC said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2015, for the quarterly period ended September 30, 2015, that a California court has scheduled a final fairness hearing for January 4, 2016, in the class action related to alleged unlawful taping/recording. In September 2012, a purported class action lawsuit against the Company was filed in the Superior Court of the State of California, claiming violation of the California Penal Code regarding the alleged unlawful taping or recording of telephone calls to and from the Company. On August 31, 2012, the Company removed the case to the United States District Court for the Southern District of California. Subsequently, the Company filed a motion to dismiss, or in the alternative, to strike the class allegations. On July 15, 2013, the U.S. District Court issued an order denying these motions. The Company continues to deny all liability to the putative class members but, at a mediation held on February 20, 2015, the Company agreed to settle all of the claims against it in this matter for a total payment of $14.5 million recorded in the period ended December 31, 2014. The amount is inclusive of all attorneys' fees to the putative class counsel and all costs of administering the settlement. The Company, the plaintiff and the putative class counsel have reached a settlement agreement and presented their settlement agreement for preliminary approval by the U.S. District Court. On August 24, 2015, the Court granted preliminary approval of the settlement and ordered the parties to provide notice to the class. Notice went out on September 23, 2015. Class members had until November 23, 2015 to submit claims, lodge objections or exclude themselves from the settlement. The Court scheduled a final fairness hearing for January 4, 2016, at which time the Court was expected to review whether the settlement is fair, reasonable and adequate and whether judgment should be entered. NEW YORK: 2 Runners File Class Suit Over Marathon ------------------------------------------------- Adam Klasfeld, writing for Courthouse News Service, reported that charging tens of thousands of runners a nonrefundable $11 fee for a chance to conquer the New York City Marathon is "inherently unfair," two would-be racers claim in court in Manhattan. Countless runners have cursed a rejected application to enter the New York City Marathon over the course of its 45-year history. Utah residents Charles Konopa and Matthew Clark filed a $10.5 million federal class action. Together, the men have been denied a chance to fly into New York to participate in three races between 2011 and 2015. The winners of the lottery still have to pay between $216 and $347 for the opportunity to hoof it 26.2 miles from the foot of the Verrazano Bridge at Staten Island across all five boroughs to the finish line at Central Park. The New York Road Runners offers the losers a range of options for guaranteed entry, including running through a charity, scoring a qualifying time in another race or participating in a set number of the club's other events. The lawsuit does not challenge these other options, but it attacks the lottery for promoting "public health and economic problems." "The institutions that run them receive a guaranteed windfall at the expense of thousands of individuals," the complaint states. Of the 80,080 applicants for last year's race, only 14,326 applicants won a spot to race, Runners World reported. The lawsuit estimates that fewer than 18 percent of lottery applicants got the green light in between 2010 and 2015. This violates the New York state Constitution's prohibition on the "lottery or sale of lottery tickets, pool-selling, book-making, or any other kind of gambling, except lotteries operated by the state," according to the complaint. Nancy Kaboolian, an attorney with Abbey Spanier, argues that the penalty for violations of this statute is double the cost of entry. The lawsuit says that the small fees add up to more than $10,560,000 in damages over that six-year period. New York Road Runners spokesman Chris Weiller said it would be "premature" to comment on the pending litigation, though he emphasized that the nonprofit "helps and inspires people through running." He added that the organization "serves over 400,000 people of all ages and abilities annually, including free running programs and initiatives for over 200,000 students throughout New York City and across the nation." Runners undeterred by the slim odds of winning have until Feb. 21 to apply for the next New York City Marathon. NEW YORK: Parents Sue State Education Officials ----------------------------------------------- Marlene Kennedy, writing for Courthouse News Service, reported that a trio of Rockland County, N.Y., parents made good on their threat and sued state education officials for denying their children a "sound, basic education." The parents say Article XI of the New York Constitution, dubbed the "education article," ensures a public education to all students, but the New York State Education Department and Board of Regents are not doing enough to protect that right. The parents contend that, despite detailed reports of "ongoing mismanagement and neglect" by the Board of Education of the East Ramapo Central School District, the state has failed to intercede to stop staff and program cuts that have affected student performance. "Because the state, through respondents, has extensively documented and acknowledged such failures by its agents in East Ramapo, it has an affirmative, non-discretionary duty to intervene and correct the board's failures," the parents say in a lawsuit filed last week in Albany County Supreme Court. Lead plaintiff David Curry, who has two children in East Ramapo schools, wants the court to order the Education Department and Board of Regents -- which oversee K-12 and university-level education in the state -- to take action. The East Ramapo district, located about 45 minutes northwest of New York City, has 33,000 students, but only 9,000 of them attend its schools, according to the complaint. The other 24,000 attend private school, nearly all of them in yeshivas, or Orthodox Jewish schools. Several Hasidic villages and hamlets are within the district's borders. The public school population is 91 percent African-American, Latino and Haitian, reflecting the diversity of the surrounding communities. The parents' lawsuit points to the village of Spring Valley, where the district's two high schools are located, whose residents comprise 100 different nationalities. 66 percent of them speak a language other than English at home, the complaint states. Among the district's students, 83 percent are economically disadvantaged and 20 percent have disabilities. In addition, 27 percent are classified as "English language learners," meaning they cannot communicate fluently or learn effectively in English, according to data footnoted in the complaint. But Curry says services to many of these students have been cut, along with teachers and programs, ever since the local Orthodox Jewish community secured a majority of the seats on the district's board of education in 2005. Instead, money has been channeled to the transportation and special education needs of students attending some 50 yeshivas, Curry claims. The lawsuit cites a 2014 report prepared for the Education Department by Henry Greenberg, a former federal prosecutor and adviser to the state attorney general, who was asked to look into how the board operated. Greenberg found favoritism by the board toward the yeshiva students, an "inexcusable" lack of transparency, and "abysmal" budget management that put the district "on the precipice of fiscal disaster," according to the Jan. 14 complaint. He also found that the district had operated at a deficit in seven of the past 10 years, and that the board "has rarely addressed budget gaps with long-term solutions, preferring 'one-shot' salvos to durable fixes," the complaint states. Curry cites other reports also prepared at the state's behest, including one late last year by three "monitors" -- outside education experts -- who "confirmed yet again that 'the East Ramapo Board of Education has persistently failed to act in the best interests of public school students.'" Like the Greenberg report, Curry says, the monitors found not only educational and operational faults but "total breakdown" in community trust. Curry says the parents wrote to the Education Department and Board of Regents last summer to remind them of their constitutional duty, in partnership with local school boards, to provide a sound, basic education for students. The letter said that, if the East Ramapo board did not demonstrate a willingness to change by taking to heart the recommendations in the reports "and the state fails to intervene directly, we will have no alternative but to take legal action to compel such intervention." Besides Curry, the litigating parents include Luis Nivelo and Romel Alvarez. They are represented by Gary Svirsky, Brad Elias and Matthew Schock of O'Melveny & Myers in Manhattan, along with Wendy Lecker of the Education Law Center in Newark, N.J. In addition to the New York State Education Department and Board of Regents, the heads of those agencies -- Education Commissioner MaryEllen Elia and Regents Chancellor Merryl Tisch -- are named as defendants. Gannett's Journal News in the lower Hudson Valley reported Jan. 21 that the Education Department and East Ramapo school board declined comment on the lawsuit. NORTHROP GRUMMAN: Suit Remains in S.D. Cal., Stayed Pending Talks ----------------------------------------------------------------- District Judge William Q. Hayes of the United States District Court for the Southern District of California denied a motion to transfer venue, dismissed Plaintiff's first through fifth putative class and class claims, and stayed litigation pending arbitration in the case captioned, ANH BUI, individually and on behalf of all others similarly situated, Plaintiff, v. NORTHROP GRUMMAN SYSTEMS CORP., a Delaware Corporation, Defendant, Case No. 15-CV-1397-WHQ- WVG (S.D. Cal.). On April 14, 2015, Plaintiff Anh Bui commenced the action by filing the Class Action Complaint in San Diego County Superior Court. On May 21, 2015, Plaintiff filed the First Amended Class Action Complaint which is the operative complaint in the instant case. The FAC asserts: (1) four state-law wage and hour claims arising from Plaintiff's employment with Defendant, (2) a claim for violation of California Business & Professions Code section 17200, et seq., and (3) a claim for violation of California's Private Attorneys' General Act of 2004, seeking civil penalties for Defendant's alleged wage and hour violations. On June 25, 2015, Defendant removed the action to the Court pursuant to the Class Action Fairness Act ("CAFA"), 28 U.S.C. Sections 1332(d), 1453. The matters before the Court are (1) the Motion to Transfer Venue filed by Defendant Northrop Grumman; (2) the Motion to Compel Bilateral Arbitration and Stay Proceedings, or, Alternatively, to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(3) filed by Defendant; and (3) the Motion to Stay filed by Defendant. In his Order dated December 10, 2015 available at http://is.gd/2yH8SOfrom Leagle.com, Judge Hayes concluded that the interest of justice does not favor transfer because neither Zinzow nor Milstein are currently pending in the Central District. Plaintiff's first through fifth putative class and class claims are dismissed without prejudice pursuant to Plaintiff's request. The Court directed the parties to proceed to arbitration in accordance with the terms of the Arbitration Agreement with respect to all of Plaintiff's remaining claims and shall file a joint status report on June 10, 2016. Anh Bui is represented by: Gregory E. Mauro, Esq. James R. Hawkins, Esq. JAMES HAWKINS APLC 9880 Research Dr #200, Irvine, CA 92618 Tel: (949)387-7200 Northrop Grumman Systems Corp. is represented by Jesse A. Cripps, Jr., Esq. -- jcripps@gibsondunn.com -- GIBSON, DUNN & CRUTCHER LLP OCWEN LOAN: 2nd Cir. Revives FDCA Claims in "Garfield" Case ----------------------------------------------------------- Circuit Judge Jon O. Newman of the Court of Appeals, Second Circuit, reversed the district court's dismissal of Plaintiff's claims under the Fair Debt Collection Practices Act in the case captioned, DONNA GARFIELD, Plaintiff-Appellant, v. OCWEN LOAN SERVICING, LLC, Defendant-Appellee, Case No. 15-527 (2nd Cir.). Garfield obtained a mortgage from Ocwen's predecessor-in-interest, Litton Loan Servicing L.P. and became personally obligated on a mortgage loan. Garfield failed to make payments on the mortgage loan and filed for Chapter 13 Bankruptcy in the United States Bankruptcy Court for the Western District of New York. During the bankruptcy proceedings, Ocwen acquired Garfield's mortgage loan. Under her bankruptcy plan, Garfield paid the arrears on her mortgage loan through monthly payments of $938 made during the bankruptcy proceeding to prevent foreclosure of the mortgaged property. Garfield concedes that she made only one monthly payment after her bankruptcy discharge and that by March 2014 the arrears on her monthly obligation totaled $6,672.34. In February 2014 Ocwen contacted Garfield and demanded that she pay $21,825.15 or face foreclosure on her home. Ocwen sent a delinquency notice in April 2014 for $22,684.36. In July 2014, Garfield filed her FDCPA complaint against Ocwen in the United States District Court for the Western District of New York. She alleged that Ocwen's attempt to collect the arrears on her mortgage loan, which had been discharged, violated several provisions of the FDCPA. Garfield also alleged that Ocwen violated the FDCPA in the manner it attempted to collect the post- bankruptcy monthly mortgage payments that she concedes she owes. Specifically, she alleges (1) that Ocwen violated subsection 1692e(11), which requires a so-called "mini-Miranda warning," during conversations with a debtor, and (2) that Ocwen failed to send within five days of its initial communications a 30-day notice of a debtor's right to dispute a debt, as required by subsection 1692g(a)(3). The District Court dismissed Garfield's complaint holding that the Bankruptcy Code provides the exclusive remedy for Garfield's claim that Ocwen attempted to collect an allegedly discharged debt. The Court also stated that, even if the Code does not broadly preclude all FDCPA claims for conduct that violates the discharge injunction, Garfield's particular FDCPA claims conflict with the Code's remedies and were therefore precluded. On appeal, Garfield argued that the district erred by granting dismissal to her FDCPA claims. In his Decision dated January 4, 2016 available at http://is.gd/jyxXtKfrom Leagle.com, Judge Newman concluded that the Bankruptcy Code does not broadly repeal the FDCPA for purposes of FDCPA claims based on conduct that would constitute alleged violations of the discharge injunction and none of Garfield's individual FDCPA claims conflicts with the discharge injunction under the Bankruptcy Code. The Court remanded the action with instruction to reinstate Garfield's FDCPA claims against Ocwen. Donna Garfield is represented by: Kenneth R. Hiller, Esq. LAW OFFICES OF KENNETH HILLER, PLLC 6000 N Bailey Ave #1a, Buffalo, NY 14226 Tel: (877)236-7366 Ocwen Loan Servicing, LLC is represented by Gary Neal Smith, Esq. -- gsmith@houser-law.com -- HOUSER & ALISON, APC OOMA INC: Faces "Barnett" Suit Over Share Price Drop ---------------------------------------------------- Courthouse News Services reported that Ooma's share value has dropped because the cloud-based provider of voice-over-Internet protocol used misleading statements to raise $65 million in its initial public offering, investors claim in San Mateo County Superior Court. The plaintiff is Michael Barnett. The defendants are Ooma Inc.; Worldview Capital IV; Credit Suisse Securities; and Merrill Lynch. PANASONIC CORP: Judge Calls Antitrust Case "A Mess" --------------------------------------------------- Katherine Proctor, writing for Courthouse News Services, reported that a frustrated federal judge in San Francisco told the parties in an antitrust class action against major tech firms that the case could not move forward until their attorneys sit down and determine the case's contours. "Right now, nobody's on the same page," U.S. District Judge James Donato said. "This thing is a mess." The consolidated class action involves in part a 2014 complaint filed by lead plaintiff Chip-Tech accusing a host of corporations -- including Panasonic and Samsung -- of conspiring to fix the prices of capacitors, a common component of most electronic devices. Donato structured Jan. 13 hearing of motions for summary judgment by ticking through the situational categories of the Sherman Antitrust Act, asking the parties to decide within which categories the case would proceed. In one example, he challenged the plaintiffs on whether goods both bought and resold overseas constituted "import commerce" under the Sherman Act. The plaintiffs contended that where the goods are resold does not figure into the case at all, but Donato stopped the argument. "I take seriously, as I must, that the Sherman Act focuses on the U.S., U.S. markets, U.S. consumers and U.S. parties," he said. "We cannot be a global competition policeperson. We don't do that. And you're dangerously close to gutting that limitation." Donato also told the parties that "you all can't even make agreements about who shipped what to where." He added, "I was sort of tempted to say that you all are just so far apart in genuine material facts that I'm not going to spend any time on it. But I'm now going to undertake what has been described as the backbreaking labor of what the content is, not just the general descriptions. We're actually going to cut to the facts." And class certification "is going to be a nightmare in this case unless we start defining now who the plaintiffs are," he said. He also scolded the parties for disrespecting proper legal procedure. "You send me 38 pages over whether discovery was done correctly and at the same time you ask me to enter summary judgment," he said. "How is that possible? I'll answer it for you -- it's not possible." Donato gave the parties two weeks to "sit down and figure it out in person" before he would give the case further consideration. "Send me data that I can track," he said. "It will not take me a huge amount of time once I get that data. The data is missing. PANASONIC CORP: Judge Awards $38MM in Fees in CRT Antitrust Suit ---------------------------------------------------------------- Elizabeth Warmerdam, writing for Courthouse News Service, reported that a federal judge awarded $38 million in fees to attorneys for 36 firms who represented direct purchasers of cathode ray tubes in an eight-year-long antitrust lawsuit in San Francisco against electronics giants. U.S. District Judge Jon Tigar called the fee award -- 30 percent of the $127 million settlement fund -- fair and reasonable. Cathode ray tubes, or CRTs, are vacuum tubes that shoot rays onto screens to form images, as in classic televisions. They became obsolete as new technology paved the way for flat screen televisions and other devices. More than 30 complaints were filed against CRT manufacturers within six months of the Nov. 8, 2007, announcement from the European Commission of a worldwide antitrust investigation of CRT pricing. Direct purchasers of the CRTs accused several large companies -- including Samsung, Toshiba and LG -- of conspiring to fix prices in the CRT industry when it was worth $19 billion between 1995 and 2007. The companies have separately settled claims against them for varying amounts: Chunghwa for $10 million; Philips for $15 million; Panasonic for $17.5 million; LG for $25 million; Toshiba for $13.5 million; and Hitachi for $13.5 million; and Samsung SDI $33 million. Attorneys for the direct purchasers sought $38.2 million in fees, split among 36 law firms. Although the Ninth Circuit's benchmark percentage for attorney fees in a class action is 25 percent, such a benchmark "is of little use" in a settlement of this size, Tigar said. He said the record in this case supports the heightened award. "First, counsel here has expanded far more work -- over 95,000 hours -- and taken upon themselves more risk -- spanning eight years of litigation -- than is present in a normal class action suit," Tigar wrote in his Jan. 14 order. No class member has objected to the proposed settlement or fee award, and a fee award of this size is consistent with decisions in a similar multidistrict litigation case, the judge said. A cross-check of the 30 percent award against the attorneys' anticipated lodestar calculation of $43.3 million also supports the amount, Tigar said. Tigar granted the attorneys $2.86 million in expenses -- already paid from the settlement fund -- but reduced their request for an additional $1.92 million by nearly $500,000. The reduction was for what Tigar called inappropriate travel and meal costs, including first-class flights, expensive meals and wine, drinks with co-counsel, and hotel rooms costing more than $3,500 per night. "The court expressed its unwillingness to approve these expenses, which one plaintiff's lawyer correctly described as 'pure nonsense.' The court further noted its reluctance to again spend time poring over now-largely suspect meal and travel requests and gave counsel an opportunity to submit a revised request," Tigar wrote. The attorneys withdrew their request for the meal and travel expenses, leaving them with an additional cost award of $1.53 million. The case captioned, IN RE: CATHODE RAY TUBE (CRT) ANTITRUST LITIGATION MDL No. 1917 Case No. C-07-5944-JST (N.D. Cal.). PANDA EXPRESS: Faces Suit in Los Angeles over Labor Violations -------------------------------------------------------------- Courthouse News Service reported that Target and Panda Express are accused of overtime and Labor Code violations, in separate class actions in L.A. Superior Court. PELLA CORP: Wins Summary Judgment in "Dilly" Suit ------------------------------------------------- District Judge David C. Norton of the United States District Court for the District of South Carolina granted in part Plaintiffs' motion for final settlement approval and certification of a settlement class and attorneys' fees and costs and granted in part class service awards in the case captioned, DOUG DILLY, on behalf of himself and all others similarly situated, Plaintiffs, v. PELLA CORPORATION, Defendant, Case Nos. 2:14-MN-00001-DCN, 2:14-CV- 03307-DCN (D.S.C.). In early 2006, plaintiff Doug Dilly contracted with Frye Construction to construct his home. In March 2006, another contractor working on the home purchased Pella windows to be installed in Dilly's home from Heartland Pella, an independent sales distributor for Pella products. Dilly paid Heartland Pella directly for the windows. Paella provide warranty of ten years from the date of purchase of its non-glass components of its Covered Pella Products including the Pella Endura Hardware collection. The installed windows suffered from leaking issues that on or about August 27, 2008, Heartland Pella made its last service call to Dilly's home. After that date, Dilly never made another service request or warranty claim relating to the windows. On July 30, 2014, Dilly filed a class action complaint against Pella in the United States District Court for the District of Nebraska, alleging jurisdiction based on diversity of citizenship. The complaint brings the following eleven causes of action: (1) violation of the Nebraska Uniform Deceptive Uniform Trade Practices Act (NUDTPA); (2) negligence; (3) negligent misrepresentation; (4) breach of implied warranty of merchantability; (5) breach of implied warranty of fitness for a particular purpose; (6) breach of express warranty; (7) fraudulent misrepresentation; (8) fraudulent concealment; (9) unjust enrichment; (10) violation of the Magnuson-Moss Warranty Act ("MMWA"); and (11) declaratory relief. Dilly contended that the windows are defective in that water permeates the windows through "four common leakage paths: (a) the glazing pocket; (b) the aluminum cladding and wood; (c) the crank hardware and fasteners; and (d) the frame to sash joint." Dilly further alleges that Pella knew, or but for its negligence should have been aware, of the defect when it sold the windows." Pella argued that all of Dilly's claims are barred by the applicable statutes of limitations. Dilly contended that he first discovered the defective condition of the windows in 2013 when they were removed from his home. Thus, under the discovery rule, Dilly claimed that the applicable statute of limitations did not accrue until 2013 and that his claims are therefore timely. Alternatively, Dilly argued that the respective statutes of limitations are tolled by the doctrines of fraudulent concealment and equitable estoppel. In his Order dated January 4, 2016 available at http://is.gd/iO9Jvlfrom Leagle.com, Judge Norton found that there is no genuine issue of material fact that the doctrine of fraudulent concealment does not toll the statute of limitations. Because the court dismissed all of Dilly's other claims against Pella as barred by the statute of limitations and because Dilly's claim for declaratory relief repeats the allegations alleged in his other substantive claims, the court granted Pella's motion for summary judgment as to Dilly's declaratory judgment claim. Doug Dilly is represented by Daniel K. Bryson, Esq. -- dan@wbmllp.com -- Matthew E. Lee, Esq. -- matt@wbmllp.com -- WHITFIELD BRYSON AND MASON, Scott A. George, Esq. -- sgeorge@seegerweiss.com -- SEEGER WEISS & Timothy J. O'Brien, Esq. -- tobrien@omahapersonalinjury.com -- HAUPTMAN, O'BRIEN LAW FIRM Pella Corporation is represented by John P. Mandler, Esq. -- john.mandler@FaegreBD.com -- Kevin L. Morrow, Esq. -- kevin.morrow@FaegreBD.com -- Mark J. Winebrenner, Esq. -- mark.winebrenner@FaegreBD.com -- Shane A. Anderson, Esq. -- shane.anderson@FaegreBD.com -- FAEGRE BAKER DANIELS PEP BOYS-MANNY MOE: Court Denies Class Certification in "Lee" ------------------------------------------------------------- Magistrate Judge Jacqueline Scott Corley of the United States District Court for Northern District of California denied Plaintiff's motion for class certification in the case captioned, ANDREW LEE, Plaintiff, v. THE PEP BOYS-MANNY MOE & JACK OF CALIFORNIA, et al., Defendants, Case No. 12-CV-05064-JSC (N.D. Cal.). Plaintiff Andrew Lee filed the instant putative class action arising out of the attempted collection of monies incurred as a result of his alleged misuse of his employee discount and for changing the oil on his car while at work at Defendant The Pep Boys Manny Moe & Jack of California. Plaintiff alleged that the settlement demand letters that Defendant Palmer Reifler & Associates sent to Plaintiff and others violated various provisions of the Fair Debt Collection Practices Act (FDCPA), and the Unfair Competition Law (UCL), Cal. Bus. & Prof. Code Sec. 17200. Plaintiff sought to recover actual and statutory damages on behalf of himself and a putative nationwide class of individuals who received settlement demands from Palmer under federal law, and statutory restitution and injunctive relief under California law for a class of all individuals in California who received written settlement demands from Palmer seeking in excess of $500 citing California Penal Code Section 490.5. In the motion, Plaintiff sought to certify a class of all "internal" individuals who received written communications sent by or on behalf of Palmer at any time from August 20, 2008 to the present, in which a demand for payment and/or an offer of "settlement" is made for alleged debts, civil liabilities, penalties, and damages. In her Order dated December 23, 2015 available at http://is.gd/P2esAEfrom Leagle.com, Judge Corley found that the Plaintiff has failed to satisfy the Rule 23(a) requirements for his UCL claim, the Court need not address whether he has met the requirements of Rule 23(b). Andrew Lee is represented by: Larry W. Lee, Esq. Daniel Hyo-Shik Chang, Esq. Nicholas Rosenthal, Esq. DIVERSITY LAW GROUP 550 S. Hope St., Suite 2655 Los Angeles, CA 90071 Tel: (213) 488-6555 Defendants are represented by Dennis Justin Kelly, Esq. -- djk@dillinghammurphy.com -- John Norman Dahlberg, Esq. -- jnd@dillinghammurphy.com -- DILLINGHAM & MURPHY PLUMROSE USA: "Heuberger" Suit Seeks to Recover Unpaid OT Wages --------------------------------------------------------------- Jason Heuberger, and all others similarly situated v. Plumrose USA, Inc. and Forge Industrial Staffing, Inc., Case No. 3:15-cv- 00586 (N.D. Ind., December 10, 2015), seeks to recover unpaid overtime wages under Fair Labor Standards Act and Indiana's Minimum Wage Law of 1965. Forge Industrial Staffing, Inc. provides employee recruitment services to the manufacturing and industrial sectors. Plumrose USA, Inc. produces and sells meat products to food distributors, retailers, and wholesalers in the United States. The Plaintiff is represented by: Mark Potashnick, Esq. WEINHAUS & POTASHNICK 11500 Olive Blvd., Ste 133 St. Louis, MO 63141 Tel: (314) 997-9150 Fax: (314) 997-9170 E-mail: markp@wp-attorneys.com - and - Kathleen M. Sweeney, Esq. SWEENEY HAYES LLC 141 E. Washington Street, Ste 225 Indianapolis, IN 46204 Tel: (317) 491-1050 Fax: (317) 491-1043 E-mail: ksween@gmail.com PNC FINANCIAL: N.Y. Court Sends "Gokhberg" to Pennsylvania ---------------------------------------------------------- District Judge Laura Taylor Swain of the United States District Court for the Southern District of New York granted Defendants' motion to transfer venue in the case captioned, MARAT GOKHBERG, YURY GOKHBERG, DAVID JAFFE, SUREKHA BASSI, and MARC FRANCHI, Plaintiffs, v. THE PNC FINANCIAL SERVICES GROUP, INC., and PNC BANK, N.A., Defendants, Case No. 15 CV 6001-LTS (S.D.N.Y.). On July 30, 2015, Plaintiffs Marat Gokhberg, Yury Gokhberg, David Jaffe, Surekha Bassi, and Marc Franchi filed the instant putative collective action against Defendants, alleging violations of the federal Fair Labor Standards Act and the New York Minimum Wage Act. Plaintiffs are all mortgage loan officers who worked for Defendants and who allege that they were not properly paid overtime, minimum wage, or spread-of-hours pay under applicable federal and state law. Only a few days after Plaintiffs filed their action, a different set of plaintiffs filed a complaint in the Western District of Pennsylvania asserting materially identical federal causes of action based on materially identical facts. According to the Complaint, Plaintiffs Marat and Yury Gokhberg, Surekha Bassi, and Marc Franchi worked for Defendants solely at locations in the Eastern District of New York, and Plaintiff David Jaffe worked for Defendants in the Eastern District of New York for three years followed by one year spent working in the Southern District of New York. Upon review of the Complaint, the Court issued an Order to Show Cause sua sponte, ordering Plaintiffs to show cause why this action should not be transferred to the Eastern District of New York, where the vast majority of Plaintiffs' actual employment occurred. Plaintiffs responded to the Court's Order on September 1, 2015. In the motion, Defendants filed the motion seeking transfer of the action to the Western District of Pennsylvania, where it could be heard alongside the Bland litigation that is currently proceeding in that district. In her Memorandum Opinion and Order dated December 21, 2015 available at http://is.gd/2vnHGEfrom Leagle.com, Judge Swain concluded that the location of relevant documents and the locus of operative facts weigh in favor of transfer to Pennsylvania, because Plaintiffs allege a common pattern and practice by Defendants of failing to properly classify and pay all of PNC's MLOs which would involve documents and facts drawn from PNC's headquarters, where such decisions would have been made. The venue also serves the convenience of the witnesses and parties is neutral, as Plaintiffs are located in New York and Defendants are located in Pittsburgh. Plaintiffs are represented by Hope Allison Pordy, Esq. -- hpordy@spivaklipton.com -- SPIVAK LIPTON WATANABE SPIVAK & MOSS LLP - and - Gregory Keith McGillivary, Esq. Sarah Michelle Block, Esq. WOODLEY & MCGILLIVARY 1101 Vermont Ave NW #1000, Washington, DC 20005 Tel: (202)833-8855 Defendants are represented by Melissa D. Hill, Esq. -- melissa.hill@morganlewis.com -- Sarah E. Bouchard, Esq. -- sbouchard@morganlewis.com -- MORGAN, LEWIS & BOCKIUS PROMENADE TOWERS: "Taban" Suit Alleges Civil Code Violation ----------------------------------------------------------- Lily Taban, and all others similarly situated v. Promenade Towers, Ltd. and Does 1 through 10, Case No. BC603410 (Cal. Super., December 9, 2015), is brought against the Defendants for violation of the California Civil Code, breach of implied warranty of habitability, violation of Business and Professions Code, negligence, tortuous breach of the warranty of habitability, breach of the covenant of quiet enjoyment and nuisance. The Plaintiff alleged that throughout her tenancy at the Promenade Towers, her apartment unit has been infested with cockroaches. The Defendant is the owner and lessor of Promenade Towers located in Los Angeles, California. The Plaintiff is represented by: George S. Azadian, Esq. AZADIAN LAW GROUP, PC 790 E. Colorado Blvd., 9th Floor Pasadena, CA 91101 Tel: (626) 449-4944 Fax: (626) 628-1722 E-mail: george@azadianlawgroup.com - and - Desiree Meguerditchian, Esq. FOOTHILL LAW GROUP 230 East Foothill Blvd. #C Arcadia, CA 91106 Tel: (626) 239-6135 Fax: (626) 628-1722 E-mail: foothill.lg@gmail.com RAMDASDARKE DARKE: Sued Over Defects in Properties for Rent ----------------------------------------------------------- Marcellus Toney, v. Ramdasdarke Darke, Mangal Darke, Mukesh Darke, Ranjit Darke, Shekhar Darke and DOES 1-30, Case No.RG15795S39 (Cal. Super., County of Alameda Unlimited Jurisdiction, December 7, 2015), alleges that Plaintiffs suffered emotional distress, physical injury, over-payment of rent, and out-of-pocket expenses as a result of habitability defects and other acts and/or omissions committed by Defendants. The Defendants were the owners and/or property managers or the agents and/or employees of the owners and/or property managers of the Subject Premises. The Plaintiffs are represented by: Andrew Wolff, Esq. Chris Beatty, Esq. LAW OFFICES OF ANDREW WOLFF, PC 1970 Broadway, Suite 210 Oakland, CA 94612 Phone: (510) 834-3300 Fax: (510) 834-3377 E-mail: andrew@awolfflaw.com chris@awolfflaw.com REDFIN CORP: N.D. Cal. Judge Sends "Galen" Case to Arbitration -------------------------------------------------------------- District Judge Thelton E. Henderson granted Defendant's motions to compel arbitration in the captioned case SCOTT GALEN, Plaintiff, v. REDFIN CORPORATION, Defendant. IVONNETH CRUZ, Plaintiff, v. REDFIN CORPORATION, Defendant, Case Nos.: 14-CV-05229-TEH, 14-CV- 05234-TEH, (N.D. Cal.) Galen filed his case in Alameda County Superior Court on January 16, 2013. Galen worked as a Field Agent for Defendant Redfin. Galen claims that he was misclassified as an independent contractor and accordingly denied employment benefits while he worked for Redfin. Galen signed a Field Agent Independent Contractor Agreement to work as a Field Agent for Redfin on August 26, 2009. The Agreement contained a binding arbitration clause. Redfin moved to compel arbitration, while Plaintiff moves to enforce law of the case. In his Order dated December 1, 2015 available at http://is.gd/1tQlaqfrom Leagle.com, Judge Henderson denied Plaintiff's motion to enforce law of the case and granted Defendant's motions to compel arbitration. Galen's motion to enforce the law of the case is denied due to the procedural posture of the case and the changed circumstances following the Superior Court's decision. Redfin's motions to compel arbitration are granted in both cases because the parties clearly and unmistakably delegated the question of arbitrability to the arbitrator, any unconscionable provisions regarding that delegation are severable, and Refin's motion to compel is not wholly groundless. The Court therefore severs the Agreements' fee- shifting, forum selection, and choice of law clauses. The question of arbitrability is delegated to an arbitrator in the San Francisco Bay Area applying the 2009 era AAA Labor and Employment Rules. The parties shall file a joint statement within ten days of the arbitrator's decision on arbitrability, or by March 7, 2016, whichever is sooner. Laura L. Ho, Esq. -- lho@gbdhlegal.com -- and James Kan, Esq. -- jkan@gbdhlegal.com -- of Goldstein Borgen Dardarian & Ho serve as counsel for Plaintiff Scott Galen Ronald D. Arena, Esq. -- rarena@arenahoffman.com -- Michael A. Hoffman, III, Esq. -- mhoffman@arenahoffman.com and Kathryn Macomber Weeks, Esq. of Arena Hoffman LLP serve as counsel for Defendant Redfin Corporation ROOT9B TECHNOLOGIES: Levi & Korsinsky Appointed as Lead Counsel --------------------------------------------------------------- Root9b Technologies, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2015, for the quarterly period ended September 30, 2015, that the Company and three senior executives of the Company are named as defendants in a class action proceeding filed on June 23, 2015, in the U.S. District Court for the Central District of California. On September 24, 2015, the U.S. District Court for the Central District of California granted a motion to transfer the lawsuit to the United States District Court for the District of Colorado. On October 14, 2015, the Court appointed David Hampton as Lead Plaintiff and approved Hampton's selection of the law firm Levi & Korsinsky LLP as Lead Counsel. The Plaintiff alleges in the Complaint violations of the federal securities laws on behalf of a class of persons who purchased shares of the Company's common stock between December 1, 2014 and June 15, 2015. In general, the complaint alleges that false or misleading statements were made or that there was a failure to make appropriate disclosures concerning the Company's cyber security business and products. "We cannot predict the outcome of this lawsuit; however, the Company believes that the claims lack merit and intends to defend against the lawsuit vigorously," the Company said. RUST-OLEUM: Ill. Judge Narrows Claims in Product Liability Suit --------------------------------------------------------------- District Judge Amy J. St. Eve of the United States District Court for the Northern District of Illinois granted in part, granted in part without prejudice, and denied in part Rust-Oleum's motion to dismiss in the case captioned, In Re Rust-Oleum Restore Marketing, Sales Practices And Products Liability Litigation, No. 15 C 1364, MDL No. 2602 (N.D. Ill.). In the consolidated, multi-district litigation (MDL), Plaintiffs are purchasers and users of a paint product called "Deck & Concrete Restore" or "Restore 10X" manufactured by Defendant Rust- Oleum Corporation. Plaintiffs allege that Restore contains latent defects that result in premature degradation upon application. Plaintiffs contend that Rust-Oleum knew that Restore was defective prior to and during its marketing, selling, and warranting the product to Plaintiffs. On April 7, 2015, Plaintiffs filed their Consolidated Amended Class Action Complaint naming 40 Plaintiffs from 27 states alleging that sometime between 2010 and 2015 they each purchased and applied to a deck or other surface, a paint product called "Deck & Concrete Restore" or "Restore 10X" that Rust-Oleum has manufactured since September 2012. Based on these allegations, Plaintiffs bring a putative class action against Rust-Oleum on behalf of all individuals and entities that purchased Restore, not for resale, "in the territories of the United States." Plaintiffs' ten-count Complaint asserts various claims under the laws of all 50 states and the District of Columbia in addition to individual state law claims. Count I seeks declaratory, injunctive, or equitable relief under the Declaratory Judgment Act. Count II alleges a failure to comply with obligations under written and implied warranties, in violation of the Magnuson-Moss Warranty Act. Count III alleges breach of express warranties under the laws of every state. Counts IV and V allege breaches of the implied warranty of merchantability and the implied warranty of fitness for a particular purpose under the laws of every state. Count VI asserts violations of various state consumer-fraud statutes. Count VII claims violations of the false-advertising statutes of four states. Count VIII claims a violation of the California Consumer Legal Remedies Act. Count IX alleges negligent misrepresentation. Lastly, Count X claims fraudulent concealment. In the motion, Rust-Oleum argues that Plaintiffs' Complaint fails to state a claim for relief under each of the alleged bases and that dismissal of each claim asserted by each Plaintiff is warranted. In her Memorandum Opinion and Order dated January 7, 2016 available at http://is.gd/CRnlpIfrom Leagle.com, Judge St. Eve denied Defendants' motion to dismiss as to Count I through III and Counts VI through IX, granted in part Count IV and granted Count V. Plaintiffs are represented by: William M. Audet, Esq. AUDET & PARTNERS, LLP 221 Main St #1460 San Francisco, CA 94105 Tel: (415)982-1776 - and - Jean S. Martin, Esq. LAW OFFICE OF JEAN SUTTON MARTIN PLLC 2018 Eastwood Rd Suite 225, Wilmington, NC 28403 Tel: (910)292-6676 - and - Joel R. Rhine, Esq. RHINE MARTIN LAW FIRM, P.C. 1612 Military Cutoff Rd, Wilmington, NC 28403 Tel: (910)772-9960 Defendants are represented by Abigail Marie Bartine, Esq. -- abartine@mayerbrown.com -- Chad Matthew Clamage, Esq. -- cclamage@mayerbrown.com -- Dana S. Douglas, Esq. -- ddouglas@mayerbrown.com -- Joshua D. Yount, Esq. -- jyount@mayerbrown.com -- Lori E. Lightfoot, Esq. -- llightfoot@mayerbrown.com -- Reginald Goeke, Esq. -- rgoeke@mayerbrown.com -- Richard Edward Nowak, Esq. -- rnowak@mayerbrown.com -- Stephen J. Kane, Esq. -- skane@mayerbrown.com -- MAYER BROWN LLP SAN DIEGO, CA: Feb. 11 Hearing in Police Officer's Suit ------------------------------------------------------- Bianca Bruno, writing for Courthouse News Services, reported that a class action brought by a San Diego police officer who claims the city stiffs unmarried employees of benefits given to married workers is moving forward, although in whose courtroom in San Diego has yet to be decided. San Diego Superior Court Judge John Meyer heard Jan. 19 from plaintiff Deborah Ganley as to why the case should be transferred to another San Diego judge, Richard Strauss. The class action filed by Ganley on Jan. 6 claims marital status discrimination by the city via the pension retirement program that city employees pay into. Ganley says employees who are married the day they retire receive a special "surviving spouse benefit," while unmarried employees like her receive a substitute benefit. The benefit given to unmarried employees is essentially a life insurance policy, while a spouse who outlives a city employee will continue to receive 50 percent of the deceased's pension. But Ganley claims the substitute benefit she has been paid is worth at least $50,000 less than the surviving spouse benefit received by married employees. She retired in 2015. Ganley also claims the city subsidizes the surviving spouse benefit because the rate at which current employees pay into the pension system can't cover the cost of it. The substitute benefit received by unmarried city employees is not subsidized and its rate was last adjusted in 1979, according to Ganley. In 2001 and again in 2011, a study found unmarried retirees collectively received about $1.5 million less per year than married retirees, Ganley claims. Michael Conger, Ganley's attorney, said the current value of the subsidy is $130 million. Conger represented a similar case that was settled in 2015 on the eve of the trial. Strauss presided over Wood vs. the City of San Diego for over four years, understands the ins and outs of San Diego's pension system and should be the judge to oversee the latest case filed against the city, Conger said. "If you don't fully fund your pension, it's always at risk," Conger said. "There's no good reason for the government to pay married people more than unmarried people. I would ask the city instead of embracing discrimination, to fix it." City Attorney Joe Cordileone said the city decided to settle the Wood case because it would have cost three to four times more to go to trial. But he said issues brought in the Ganley case "are not quite as simple" as Conger made them out to be. The city does not want the case transferred to Strauss and has filed an opposition. Meanwhile, the San Diego City Council will not be able to review the case and direct Cordileone on a course of action until Jan. 26, the city attorney said. He said neither he nor any of his colleagues will be able to represent the city as the case moves through court due to a conflict of interest, as they also receive pension benefits as city employees. "It's ridiculous to ask the city to just roll over without having the chance for the council to consult with their lawyers," Cordileone said. "[Conger] makes it sound like a simple open and shut case. We're not talking comparing apples to oranges, we're talking about comparing apples to orangutans. He's completely wrong. The city has done nothing wrong." In a letter sent this past month to Mayor Kevin Faulconer and city councilmembers, Conger suggested a way to rectify what his client claims is the pension disparity in benefits received by employees based on their marital status: requiring employees to pay the full cost of the surviving spouse benefit as originally intended when the benefit was created in 1971, rather than subsidize the cost. Conger also suggested in the letter the city pay out $10 million to resolve the claims rather than go through litigation. The attorney said the Ganley case makes exactly the same claims as the Wood case settled by the city in 2015, where the plaintiff was awarded $68,000. In a letter responding to Conger, Cordileone noted "no decision dealing with tens of millions of taxpayer dollars can be made without the city council and mayor being fully apprised of all of the issues." Meyer will consider whether to transfer the case over to Strauss. A hearing has been set for Feb. 11. SAN FRANCISCO 49ERS: "Kazemzadeh" Class Action Dismissed -------------------------------------------------------- Nicholas Iovino, writing for Courthouse News Services, reported that a federal judge in San Francisco dismissed with prejudice an antitrust class action accusing the San Francisco 49ers and Ticketmaster of conspiring to monopolize the market for reselling season tickets. Lead plaintiff Amir Kazemzadeh sued the 49ers and Ticketmaster in August 2015, claiming they blocked season ticketholders from access to their tickets until 72 hours before a game last year. In previous seasons, Kazemzadeh, said he could print his tickets in advance and give them as gifts or post them for sale on websites such as stubhub. Under the new policy, season ticketholders must resell their tickets through Ticketmaster's NFL Ticket Exchange website up until three days before a game. The NFL Ticket Exchange charges high fees and conceals its floor price for resold tickets, according to the lawsuit. Kazemzadeh said the two companies were stifling competition in the secondary ticket market by reducing the number of 49ers tickets for sale on competing websites and maximizing the number for sale on the NFL Ticket Exchange. The NFL Ticket Exchange charges buyers 15 percent extra, with a 10 percent surcharge for season ticketholders and a 15 percent service fee, according to estimates cited in the complaint. Tickemaster and the 49ers both filed motions to dismiss in December, saying the plaintiffs failed to adequately allege harm to competition or "clearly identify what 'market' has been allegedly restrained.' On Jan. 11, Kazemzadeh's attorney informed the court that his client decided to voluntarily dismiss the case with prejudice . Class attorney Naomi Spector of Hyde & Swigart in San Diego said she had no comment and was not permitted to speak about the matter, suggesting that a confidential settlement agreement was reached between the parties. San Francisco 49ers attorney Derek Ludwin of Washington, D.C. and Ticketmaster attorney Andrew Gass of Latham & Watkins in San Francisco did not return phone calls seeking comment Jan. 12, afternoon. A phone call and email seeking comment from the 49ers also went unanswered Jan. 12. A Ticketmaster spokeswoman declined to comment. SAN JUAN CAPISTRANO, CA: Overcharged Water Rate, Suit Claims ------------------------------------------------------------ Matt Reynolds, writing for Courthouse News Services, reported that San Juan Capistrano overcharged residents millions of dollars for water and when it was caught at it, offered refunds of only 20 percent of the overcharges, a class action claims in state court in Santa Ana. Lead plaintiff Hootan Daneshmand sued the City of San Juan Capistrano on Jan. 15, in Orange County Superior Court, claiming the city's refund program offers less than 20 percent of the overcharges. Daneshmand says an Orange County court and a California appeals court found that San Juan Capistrano had illegally created a tiered rate system that did not account for customers' water use or actual cost of consumption. He says the random increase of water rates violated Proposition 218, the Right to Vote on Taxes Act, a constitutional amendment passed by California voters in 1996. The Fourth District Court of Appeal in California concluded the city had violated the state constitution by sending customers inflated bills for more than five years between 2010 and 2015, according to the complaint. But the city has kept its overcharges and interest on the overcharges, Daneshmand says. Though San Juan Capistrano promised it would pay refunds in July 2015, its program was "nothing more than a continuance of its illegal conduct," according to the complaint. San Juan Capistrano "failed to disclose that its water rates were charged in violation of state law and failed to disclose that the 'refund' it was offering included less than 20 percent of the overcharges," the lawsuit states. It claims that thousands of residents did not receive a refund notice, and that the city told the 11,000 who did that if they accepted the refund they would have to sign a release relinquishing the right to collect the hidden overcharges. The city's "attempt to escape the consequences of its illegal conduct by accounting sleight of hand should be rejected," the complaints states, adding that the city has "doubled down on its illicit conduct." The residents seek refunds with interest and damages for breach of contract, breach of faith, money had and received, and negligence. They are represented by Niall McCarthy -- nmccarthy@cpmlegal.com -- of Cotchett, Pitre & McCarthy in Burlingame. San Juan Capistrano did not immediately respond to an emailed request for comment on Jan. 11. SAXON MORTGAGE: Final Accounting Hearing Continued to August 10 --------------------------------------------------------------- District Judge Jon S. Tigar of the United States District Court for the Northern District of California granted the stipulation and request of the parties to withdraw litigation pending compliance of CAFA Notice requirements in the case captioned, MARIE GAUDIN, individually, and on behalf of others similarly situated, Plaintiff, v. SAXON MORTGAGE SERVICES, INC. a Texas corporation, and Does 1-100, Defendants, Case No. C 11 1663 JST (N.D. Cal.). On November 25, 2015, the Court issued Judgment Granting Final Approval to Class Action Settlement in the action. The Settlement was governed by the Class Action Fairness Act (CAFA) which required Defendant to provide notice of the settlement to government officials. The Settlement Agreement and Release of Claims shifted the duty to provide CAFA Notice to the Plaintiff who inadvertently failed to provide such CAFA Notice. In the motion, the parties stipulate and request that the Court order that the Judgment in the instant action is withdrawn pending compliance with CAFA Notice requirements and for Plaintiff to serve the requisite CAFA Notice on the appropriate Federal and/or State officials by December 18, 2015. In his Stipulation and Proposed Order dated December 11, 2015 available at http://is.gd/3CKsASfrom Leagle.com, Judge Tigar granted the motion of the parties to withdraw action pending compliance with CAFA Notice requirements. The Court scheduled the continuation of Final Accounting Hearing from April 20, 2016 to August 10, 2016. Marie Gaudin is represented by Daniel Joseph Mulligan, Esq. -- dan@jmglawoffices.com -- JENKINS MULLIGAN & GABRIEL LLP - and - Peter B. Fredman, Esq. LAW OFFICE OF PETER FREDMAN 125 University Ave #102 Berkeley, CA 94710 Tel: (510)868-2626 Saxon Mortgage Services, Inc. is represented by Erik Wayne Kemp, Esq. -- ek@severson.com -- SEVERSON & WERSON, Regina Jill McClendon, Esq. -- rmccledon@lockelord.com -- LOCKE LORD LLP & Stephen Scotch-Marmo, Esq. -- stephen.scotch-marmo@morganlewis.com -- MORGAN, LEWIS & BOCKIUS LLP SETAUKET CAR WASH: Court Grants Class Certification in FLSA Suit ---------------------------------------------------------------- District Judge Leonard D. Wexler of the United States District Court for the Eastern District of New York granted Plaintiffs' motion for class certification in the case captioned, ANCELMO SIMEON MENDEZ LOPEZ SANTOS NATIVIDAD CALI ZAMBRANO on behalf of themselves and all others similarly situated, Plaintiffs, v. SETAUKET CAR WASH & DETAIL CENTER TLCW, INC., KARP ENTERPRISES, INC., STEVEN SAVIANO, and MARK CHAIT, Defendants, Case No. CV-12- 6324 (E.D.N.Y.). Plaintiffs are car wash attendants formerly employed by the Defendants. They claim that Defendants violated the FLSA and the NYLL by not paying overtime, minimum wage or the "spread of hours" required under New York law. Amongst other things, Plaintiffs claim that in calculating their wages, Defendants took a tip credit that failed to meet the requirements of New York law, NYCRR Sec. 142-2.5(b). In addition, Plaintiffs allege that improper calculation of the tip credit led to an improper calculation of overtime wages. Defendant's oral motion was unaccompanied by any evidence or legal authority. In the motion, Plaintiffs seek class certification of the claims under Fed.R.Civ.P Rule 23. In his Memorandum and Order dated January 6, 2016 available at http://is.gd/BLLeI5from Leagle.com, Judge Wexler found that Rule 23 (a) and (b) is satisfied on Plaintiffs claims under New York law. The Court also found that Plaintiffs and Plaintiffs' counsel are adequate to permit certification. Plaintiffs are represented by: Alyssa T. Marino, Esq. Neil Frank, Esq. Jennifer Eileen Muller, Esq. FRANK & ASSOCIATES 500 Bi County Blvd #465, Farmingdale, NY 11735 Tel: (631)756-0400 Defendants are represented by Saul D. Zabell, Esq. -- SZabell@laborlawsny.com -- ZABELL & ASSOCIATES, P.C. SNAP-ON TOOLS: Court Denies Motion to Reconsider in "Jacobson" -------------------------------------------------------------- District Judge James Donato of the United States District Court for the Northern District of California denied plaintiff Daniel Jacobson's request for leave to file a motion for reconsideration based on alleged errors in the arbitration order in the case captioned, DANIEL JACOBSON, individually and on behalf of all others similarly situated, Plaintiff, v. SNAP-ON TOOLS COMPANY, et al., Defendants, Case No. 15-CV-02141-JD (N.D. Cal.). After extensive briefing and evidentiary submissions by the parties, the Court compelled arbitration of the First through Ninth claims of Jacobson's complaint on an individual basis, but retained and stayed the Tenth claim for representative PAGA civil penalties. In the motion, Jacobson asked for leave to file a motion for reconsideration based on alleged errors in the arbitration order contending that Court overlooked the parties' purported intent to strike the whole arbitration clause in a franchise agreement if a provision barring "consolidation, joinder, and/or class action" in the arbitration was found to be unenforceable. In his Order dated January 5, 2016 available at http://is.gd/zUrhitfrom Leagle.com, Judge Donato concluded that Plaintiff has not tendered anything new or different that qualifies as a basis for reconsideration and his purported issue did not meet the standards for reconsideration, and his other unconscionability points failed for the same reason. Daniel Jacobson is represented by Peter Scott Rukin, Esq. -- prukin@rhdtlaw.com -- RUKIN HYLAND DORIA & TINDALL LLP - and - Chaya M. Mandelbaum, Esq. Erin Marie Mooney Pulaski, Esq. Steven G. Zieff, Esq. RUDY EXELROD ZIEFF & LOWE, LLP 351 California St # 700 San Francisco, CA 94104 Tel: (415)434-9800 Defendants are represented by Laura Emily Hayward Esq. -- lhayward@littler.com -- LITTLER MENDELSON SOUTHERN CALIFORNIA GAS: Sued Over Natural Gas Storage Wells ------------------------------------------------------------ Greta Fay Goodman, Mjndy Ellen Goodman, Stuart Warren Goodman, Debbie Goodman, and Gerald Karns, individually and on behalf of all others similarly situated, v. Southern California Gas Company, a California Corporation, Sempra Energy, a California Corporation State Of California, Division Of Oil, Gas And Geothermal Resources, a public entity, and DOES1 through 100, inclusive, Case no: 6C6 02996 (Cal. Super., County of Los Angeles Stanley Mosk Courthouse, December 8, 2015), alleges that Defendants negligently, carelessly, or in some other tortious manner constructed, controlled, maintained, and operated its natural gas storage wells and injected natural gas into an underground well causing it to break and an ensuing massive gas leak. Southern California Gas Company and its parent company, Sempra Energy, "import" natural gas and then inject the natural gas into storage reservoirs, including underground wells in the Aliso Canyon Oil Field. Southern California Gas also utilizes wells in the area to dispose of toxic waste from its operations and to inject water to force oiland gas from one part of the formation to another part of the formation. The Plaintiffs are represented by: James P. Frantz, Esq. George T. Stiefel III, Esq. William P. Harris JH, Esq. JodiL Frantz, Esq. Philip C. Aman, Esq. M. Regina Bagdasarian, Esq. Kira C. Guisto, Esq. FRANTZ LAW GROUP, APLC 555 West Fifth St., Gas Company Tower, 31st Floor Los Angeles, CA 90013 Phone: (323) 425-8138 Fax: (619) 525-7672 E-mail: jpf@ficantzlawgroup.com gstiefel@frantzlawgroup.com whams@frantzlawgroup.com pca@firantzlawgroup.com rbagdasarian@firantzlawgroup.com kira@frantzlawgroup.com SOUTHERN COPPER: Faces Shareholders' Suit in Del. Chancery Ct. -------------------------------------------------------------- Carla Lacey and Barbara Siegfried, on behalf of themselves and all others similarly situated stockholders of Southern Copper Corporation, and derivatively on behalf of Southern Copper Corporation, v. German Larrea Motavelasco, Oscar Gonzalez Rocha, Emilio Carrillo Alfredo Casar Perez, Xavier Garcia De Quevedo Topete, Daniel Muniz Quintanilla, Luis Miguel Palomino Bonilla, Gilberto Perezalonso Cifuentes, Juan Rebolledo Gout, Carlos Ruiz Sacristan, Enrique Castillo Sanchez Mejorada, Luis Castelazo Morales, And Grupo Mexico S.A.B DE C.V and Southern Copper Corporation, Case No. 11779-VCG (Court of Chancery of the State of Delaware, December 10, 2015), was filed on behalf of themselves and all other similarly situated public stockholders of Southern Copper Corporation and derivatively on behalf of nominal defendant. Southern Copper is an integrated producer of copper and other minerals, and operate mining, smelting and refining facilities in Peru and Mexico. The Plaintiffs are represented by: Peter B. Andrews, Esq. Craig J. Springer, Esq. ANDREWS & SPRINGER LLC 3801 Kennett Pike Building C, Suite 305 Wilmington, DE 19807 Phone: (302) 504-4957 - and - Jeremy Friedman, Esq. Spencer Oster, Esq. David Tejtel, Esq. 240 East 79th Street, Suite A New York, NY 10075 Phone: (888) 529-1108 ST. JOSEPH COUNTY: "Donovan" Settlement Approved on Final Basis --------------------------------------------------------------- District Judge Theresa L. Springmann granted the motion for final order of approval in the captioned case JOHN P. DONOVAN (on behalf of himself and others similarly situated), Plaintiff, v. ST. JOSEPH COUNTY SHERIFF (in his official capacity), Defendant, Case No.: 3:11-CV-133-TLS, (N.D. Ind.) The Plaintiff, John P. Donovan, on behalf of himself and others similarly situated, sued the St. Joseph County Sheriff in his official capacity pursuant to 42 U.S.C. Section 1983. The Plaintiff alleged that the Sheriff employed and implemented polices that violated the Fourth Amendment. Specifically, the Defendant did not ensure that pretrial detainees were presented before a judge or magistrate for an initial hearing or arraignment within forty-eight hours of their warrantless arrests or, alternatively, released from custody within, or at the expiration of, that same 48 hours. The parties entered into a Class Action Release and Settlement Agreement. The Settlement required the Defendant to pay $270,000 into a Settlement Fund to cover administration and notice costs, attorneys' fees and costs, the Named Plaintiff's incentive award, and claims payments. After a reduction of costs for sending the mailed notice and administering the fund, an incentive award not to exceed $5,000, and for attorney's fees of no more than $108,000 plus costs, the settlement funds would be distributed to the Settlement Class Members, defined as: "All individuals arrested without a warrant from March 30, 2009 through October 22, 2010, and who were booked and/or placed into the St. Joseph County Jail, and who were not brought before a judicial officer within forty-eight (48) hours after their arrest for a judicial probable cause hearing, and who were detained by the St. Joseph County Sheriff in excess of forty-eight (48) hours after their arrest." The Settlement Class was divided into two groups: (I) Donovan and other class members for loss of liberty, and; (II) those individuals who submitted a claim form for emotional distress, mental anguish, loss of employment or wages, or other special damages. The anticipated recovery for the members of Settlement Class I is about $51.15 per hour of over detention and $12.78 for each fifteen minute increment of over detention. Any member of Settlement Class II will have an opportunity to identify and substantiate injuries and damages. The Court preliminarily approved the Settlement on March 23, 2015. The Court confirmed Christopher C. Myers and Ilene M. Smith as Class Counsel for the Class Representative and the Class. The Court approved Homefront Legal Services, LLC, 11805 North Pennsylvania Street, Carmel, Indiana, as the Claims Administrator. The Court conducted a Fairness Hearing on August 4, 2015. In his Opinion and Order dated December 1, 2015 available at http://is.gd/pWMbFXfrom Leagle.com, Judge Springmann granted the motion for final order of approval of the Settlement. The parties are directed to comply with the terms of the Settlement Agreement, and to file a joint status report 60 days after Dec. 1, and then once every six months until the settlement is completed and the settlement fund account is closed. A final report should be filed within sixty days after the conclusion of the distribution. The Court will retain jurisdiction and oversight of the settlement proceedings, but only until such time as the parties jointly request an order of dismissal with prejudice. Christopher C Myers, Esq. Ilene M Smith, Esq. and Nicholas F Wallace, Esq. of Christopher C Myers & Associates serve as counsel for Plaintiff John P Donovan James F Groves, Esq. and David E Ballard, Esq. of Lee Groves and Zalas serve as counsel for Defendant St. Joseph County Sheriff ST. LOUIS RAMS: Fans Sue Over Transfer to Los Angeles ----------------------------------------------------- Joe Harris, writing for Courthouse News Services, reported that Rams executives misled fans about the team's intention to move from St. Louis to Los Angeles in order to induce the fans to continue to buy tickets and merchandise, a class action claims. Four fans filed the class action against The St. Louis Rams LLC, The St. Louis Rams Partnership and the ITB Football Company in city court. The lawsuit was filed Jan.13, less than 24 hours after the NFL officially announced the Rams move to Los Angeles. Speculation on a Rams move back to Los Angeles increased after owner Stan Kroenke bought a large parcel of land in Inglewood, Calif., in 2014. On Jan.13, NFL owners officially approved Kroenke's plan to build a $2.6 billion stadium on that site. The plaintiffs claim that despite the speculation, they trusted statements made by Kroenke and Rams COO Kevin Demoff concerning the team's desire to stay in St. Louis. The plaintiffs cite a variety of Kroenke comments including a 2010 interview he had with the St. Louis Post-Dispatch in which he said, "I'm going to attempt to do everything I can to keep the Rams in St. Louis. Just as I did everything I could to bring the team to St. Louis in 1995. I believe my actions speak for themselves. There's a track record. I've always stepped up for pro football in St. Louis. And I'm stepping up one more time." The plaintiffs say Demoff made the following statement on the Rams' website in 2012, ". . . Stan has been emphatic on this point: He didn't lead the charge to bring the Rams back to St. Louis to lead the charge out of St. Louis. . . . Our goal is to build a winner in St. Louis not only in 2012, but in 2022, 2032 and beyond. This city deserves better NFL football and that is what we are focused on every day." Even after the purchase of the Inglewood property, the plaintiffs claim Demoff gave an interview on 101.1 ESPN radio in St. Louis and when asked about the Rams' long term future, he responded, "I expect it will be right here in St. Louis." The plaintiffs claim those statements were intentionally misleading. "As early as 2013 and possibly before, Kroenke began targeting acquisition of the Inglewood, CA stadium site," the complaint states. "Even after acquiring the Inglewood property in January 2014 (at the latest), defendants did not disclose their desire to move the Rams to Inglewood." The plaintiffs say the Rams never informed their customers of their intent to move to Los Angeles until Jan. 4, 2015. The plaintiffs claim they were induced into buying tickets and other Rams merchandise while the defendants knew their intention was to move to Los Angeles. The plaintiff claim the Rams' relocation application, released by the team earlier this month, demonstrated the team's desire to "lead the charge" out of St. Louis. The application blasted the city's economic status and painted the city as unable to support three professional sports teams. "Defendants knew or should have known of all of these 'facts' at the time of all their previous representations regarding the future of the Rams in St. Louis," the lawsuit states. The plaintiffs claim the relocation application contained numerous factual errors designed to paint St. Louis in a negative light. Those allegations have since been refuted by St. Louis Mayor Francis Slay and by an article by Forbes, according to the complaint. The proposed class consists of all fans who have bought Rams tickets, merchandise or concessions between April 10, 2010 and Jan. 4, 2015. The class seeks damages for violations of the Merchandising Practices Act. Courthouse News obtained the lawsuit after business hours so neither Plaintiffs' Attorney Steven J. Stolze nor the Rams were available for comment. ST. LOUIS RAMS: Breached Personal Seat License Deals, Suit Says --------------------------------------------------------------- Joe Harris, writing for Courthouse News Service, reported that the Rams breached personal seat license agreements with its St. Louis fans with their move to Los Angeles, irate football fans claim in a class action. The group led by Envision LLC and three people sued The St. Louis Rams LLC in St. Louis County Circuit Court on Jan. 20. As part of the Rams moving from L.A. to St. Louis in 1995, the team sold fans personal seat licenses, with the Rams retaining all the proceeds, according to the lawsuit in Clayton, Mo. In return, fans were assigned specific seats in the Edward Jones Dome and were granted to right to buy season tickets for those seats for every season through 2025. The plaintiffs claim that the agreement includes a stipulation that if the team plays any home games at a venue other than the Edward Jones Dome, then the team will use its best efforts on a pro rata priority basis to assure PSL holders the right to buy tickets in the other stadium. On Jan. 12, 2016, the Rams and owner Stan Kroenke received NFL approval to move back to L.A. beginning with the 2016 season. "The PSL holders have a right to transfer their interest in the PSLs, which would include the right to purchase tickets in LA," Plaintiffs' Attorney David R. Bohm, of Danna McKitrick, told Courthouse News. "But the Rams are not acknowledging that they have any right to tickets in L.A. and the website where transfers could be enacted and registered essentially has statements on them that since the Rams have moved out all transactions involving St. Louis fans' PSLs have been terminated." The Rams have announced that the majority of the seats in their new $2.6 billion stadium currently being built in Inglewood, Calif., will be available through PSLs sold to L.A. fans, according to CBS Los Angeles. Rams attorney Alan Bornstein did not immediately respond to a phone message from Courthouse News requesting comment. The class seeks a declaratory judgment stating that they have a right to buy Rams tickets for comparable seats at any venue in L.A., including the new stadium being built for the Rams, and that they still have the right to transfer PSLs to other fans and retain any revenue from said transfer. The class consists of more than 50,000 St. Louis Rams fans who bought PSLs, according to the complaint. It consists of both charter PSL holders, fans who originally bought the PSL when the Rams moved to St. Louis in 1995, and PSL owners who bought the seat license from a charter holder and had it transferred to them. "Essentially the charter PSL holders and the people who have accepted transfer of charter PSLs have a right to seat until 2025 and if the Rams are playing elsewhere the Rams are supposed to make tickets available to them at those other locations," Bohm said in an interview. "The Rams have not honored that commitment." This is the second class action filed in the aftermath of the Rams move. Another class action filed on Jan. 13 claims the team intentionally misled fans about its intention to move to L.A. in order to induce St. Louis fans to buy tickets and team merchandise. SUNRUN INC: Involved in Consumer Rights & Labor Class Action Cases ------------------------------------------------------------------ Sunrun Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2015, for the quarterly period ended September 30, 2015, that the Company is currently involved in an ongoing consumer rights class action lawsuit, as well as a wage and hour class action. "If we are not successful in these cases, we may be required to pay significant monetary damages, which could hurt our results of operations," the Company said. Lawsuits are time-consuming and expensive to resolve and divert management's time and attention. Although we carry general liability insurance, our insurance may not cover potential claims or may not be adequate to indemnify us for all liability that may be imposed. We cannot predict how the courts will rule in the class action lawsuits or any other potential lawsuit against us. Decisions in favor of parties that bring lawsuits against us could subject us to significant liability for damages, adversely affect our results of operations and harm our reputation." The consumer rights class action proceeding is Reed v. Sunrun Inc., Case No. BC498002 (Calif. Super. Ct., L.A. Cty.), and Gilardi & Co., LLC, is making settlement information available to claimants at http://www.licensinglitigationagainstsunrun.com/ The plaintiffs are represented by: Steve W. Berman, Esq. Craig R. Spiegel, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 1918 8th Ave., Suite 3300 Seattle, WA 98101 Telephone: (206) 623-7292 E-mail: steve@hbsslaw.com - and - Elaine T. Byszewski, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 301 North Lake Ave., Suite 203 Pasadena, CA 91101 Telephone: (213) 330-7150 E-mail: Elaine@hbsslaw.com and Sunrun is represented by: David F. McDowell, Esq. MORRISON & FOERSTER LLP 707 Wilshire Boulevard Los Angeles, CA 90017 Telephone: (213) 892-5200 E-mail: dmcdowell@mofo.com - and - Margaret Mayo, Esq. MORRISON & FOERSTER LLP 425 Market St. San Francisco, CA 94105 Telephone: (415) 268-7000 E-mail: mmayo@mofo.com The labor-related case is Galindo v. Rec Solar Commercial Corp., et al., Case No. 37-2015-00008350 (Calif. Super. Ct., San Diego Cty.), a copy of the Complaint is available at: http://www.flipdocs.com/showbook.aspx?ID=10004307_775428 and the plaintiffs are represented by: Norman B. Blumenthal, Esq. Kyle R. Bordrehaug, Esq. Aparajit Bhowmik, Esq. BLUMENTHAL, NORTREHAUG & BHOWMIK 2255 Calle Clara La Jolla, CA 92037 Telephone: 858-551-1223 STRATEGIC REALTY TRUST: Court Granted Final Approval of Settlement ------------------------------------------------------------------ Strategic Realty Trust, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2015, for the quarterly period ended September 30, 2015, that the United States District Court for the Northern District of California granted on October 15, 2015, final approval to a settlement of a class action previously disclosed. As a result, the action was dismissed with prejudice. SUPERVALU INC: Min. Judge Dismissed Data Breach Suit ---------------------------------------------------- Courthouse News Services reported that a federal judge in Minneapolis agreed to dismiss a class action against SuperValu, AB Acquisition and New Albertson's over malicious software hackers installed on the payment-processing network for payment card transactions at grocery stores. The case is captioned, IN RE: SuperValu, Inc., Customer Data Security Breach Litigation, Court File No. 14-MD-2586 (D. Minn.) SWIFT TRANSPORTATION: Plaintiffs Must Go to Ariz. for Deposition ---------------------------------------------------------------- Senior District Judge John W. Sedwick of the United States District Court for the District of Arizona granted Defendants' motion to compel in the case captioned, John Doe 1, et al., Plaintiffs, v. Swift Transportation Co., Inc., et al., Defendants, Case No. 2:10 CV 00899 JWS (D. Ariz.). Defendants request that the court compel Plaintiffs Virginia Van Dusen, Joseph Sheer, Vickii Schwalm, Jose Motolinia, and Peter Wood to appear for deposition in Arizona in compliance with the notices they properly served on September 4, 2015. Plaintiffs state that they have refused to appear for deposition thus far because Defendants' have not fully cooperated in the discovery process. They argue that they should not be required to travel to Arizona for deposition and that the purpose of a class action is to pool resources and reduce costs, and they cite cases where opt-in plaintiffs in collective actions under the Fair Labor Standards Act were not required to travel for depositions. In his Order and Opinion dated December 28, 2015 available at http://is.gd/pCjsUUfrom Leagle.com, Judge Sedwick concluded that the basis for Plaintiffs' objection is moot because the court has since resolved the disputes regarding outstanding document production and the Fed.R.Civ.P. Rule 30(b)(6) notices. The court concluded that Plaintiffs must comply with the deposition notices and appear for deposition in Arizona. Plaintiffs cannot ignore a discovery request as a self-imposed sanction against Defendants for perceived discovery lapses or abuses. The Court directed Plaintiffs to appear for deposition in Arizona on or before February 29, 2016. Plaintiffs are represented by: Susan Joan Martin, Esq. Daniel Lee Bonnett, Esq. Jennifer Lynn Kroll, Esq. MARTIN & BONNETT PLLC 1850 N Central Ave # 2010, Phoenix, AZ 85004 Tel: (602)240-6900 Defendants are represented by Ellen M. Bronchetti, Esq. -- ebronchetti@sheppardmullin.com -- SHEPPARD MULLIN RICHTER & HAMPTON TALLGRASS TALENT: Court Grants Motion to Remand ----------------------------------------------- District Judge Christina A. Snyder of the United States District Court for the Central District of California granted Plaintiff's motion to remand in the case captioned, SONIA VIVAR, v. TALLGRASS TALENT GROUP, LLC, ET AL, Case No. CV15-6212-CAS (SSx) (C.D. Cal.). On July 14, 2015, plaintiff filed the operative Second Amended Complaint (SAC) in the instant putative class action against defendants Tallgrass Talent Group, LLC and Omega Resources Solutions in the Los Angeles County Superior Court. The SAC asserts the following claims against defendants: (1) failure to pay the minimum wage in violation of the California Labor Code Sections 1194, 1997; (2) failure to provide proper paystubs in violation the California Labor Code Sec. 226; (3) failure to reimburse business related expenses in violation of the California Labor Code Sec. 2802; (4) unfair competition in violation of the California Unfair Competition Law; and (5) violation of the California Private Attorney General Act (PAGA). On August 14, 2015, defendant Omega removed the action pursuant to the Class Action Fairness Act (CAFA), 28 U.S.C. Sec. 1332(d). On December 14, 2015, plaintiff filed a motion to remand. On December 18, 2015, defendant Tallgrass joined plaintiff's motion to remand and on December 21, 2015, defendant Omega filed a notice of non-opposition to plaintiff's motion to remand. Plaintiff contended that the amount in controversy in the case was roughly estimated as $3,230,500, and none of the parties appeared to dispute the estimate. In her Civil Minutes dated December 23, 2015 available at http://is.gd/2vnHGEfrom Leagle.com, Judge Snyder granted remand because defendants have not established that CAFA's amount in controversy requirement is satisfied. Sonia Vivar is represented by Anthony R. Strauss, Esq. -- tony@palaylaw.com -- Aris Edmund Karakalos, Esq. -- aris@palaylaw.com -- Michael Anthony Strauss, Esq. -- mike@palaylaw.com -- STRAUSS AND PALAY APC Defendants are represented by Douglas A. Wickham, Esq. -- dwickham@littler.com -- LITTLER MENDELSON PC & Brian F. Van Vleck, Esq. -- bvanvleck@vtzlaw.com -- VAN VLECK TURNER AND ZALLER LLP TARGA RESOURCES: Investors Sue to Block Sale to General Partner --------------------------------------------------------------- Cameron Langford, writing for Courthouse News Service, reported that shareholders claim directors are selling natural gas dealer Targa Resources to its general partner in a deal "tainted by conflicts of interest," and that share prices have been cut in half since the $6.3 billion deal was proposed last year. Lead plaintiff John F. Lindeman filed the federal class action on Jan. 19 in Houston. Targa Resources Partners LP owns 12 natural gas plants in West Texas, several along Louisiana's Gulf Coast and another in North Dakota. Lindeman claims the six co-defendant directors violated securities laws in a Dec. 3, 2015 SEC filing, in which they recommended unitholders approve the sale to Targa Resources Corp. and Targa Resources GP LLC in a stock-for-stock deal valued at $16.35 per share. The Jan. 19 lawsuit refers to Targa Resources Partners LP as "TRP" and Targa Resources Corp. as "Corp." This story adheres to those designations. Lindeman says the deal was initially valued at $6.3 billion and TRP unitholders were to get Corp. stock worth $35.53 per unit, which he calls a "paltry 18 percent premium." But between Nov. 3, when Targa Resources announced the merger, and Jan. 5 this year, Corp.'s share price dropped by 50 percent, Lindeman says. "As a result, the merger consideration now significantly undervalues the partnership," the complaint states. Lindeman says it's also marred by conflicts of interest: "The proposed transaction is the product of a single-bidder process throughout which defendant Joe Bob Perkins, occupying a dual role as CEO of both TRP and Corp, brokered a deal for Corp. to takeover TRP on the cheap, to the detriment of TRP unitholders." Targa Resources acknowledges on its website that TRP exists to fund Corp. with the goal of enriching Corp.'s stock holders. "Our primary business objective is to increase our dividends to our stockholders by assisting the partnership in executing its business strategy. Our cash flows are generated from the cash distributions we receive from the partnership," Corp. says in a company profile on the Targa Resources website. Lindeman takes issue with that incestuous relationship. "For its part, Corp. is a publicly traded company on the New York Stock Exchange with quarterly shareholder earnings pressuring the company's bottom line. Thus, Corp. had an interest in, and every ability to, effectuate a takeover of TRP on the cheap using its position of control on both sides of the transaction," the lawsuit states. Under the deal, TRP owners will get 0.62 of Corp. stock for every TRP unit. "Based on Corp's closing price of $26.38 per share on January 5, 2016, TRP unitholders can expect to receive only $16.35 per unit," the lawsuit states. Lindeman says another conflict of interest that should derail the deal is that Corp. elects and approves TRP's board members. TRP's board rejected offers from three other companies before announcing it would sell out to Corp., Lindeman says, citing the partnership's SEC filing. And he says TRP's filing leaves unitholders in the dark about the negotiations that led to the proposed merger. He seeks class certification and an injunction to stop the board from consummating the deal until it provides background that was omitted from the statement it filed with the SEC. "A special meeting of TRP unitholders to vote on the proposed transaction is scheduled for February 12, 2016, and thus, time is of the essence," the complaint states. Lindeman is represented by Thomas Bilek in Houston. Targa Resources did not immediately respond to a phone message seeking comment Jan. 21 afternoon. TED CRUZ: Not Eligible to Run for President, Suit Claims -------------------------------------------------------- Cameron Langford, writing for Courthouse News Services, that Texas Sen. Ted Cruz is not eligible to become president because he was born in Canada, a Houston lawyer claims in a federal class action in Houston. Cruz is the favorite to win the Republican presidential candidate nomination at the Iowa caucuses on Feb 1. ahead of Donald Trump, according to a recent poll by the Des Moines Register. Rafael Edward "Ted" Cruz was born Dec. 22, 1970, in Calgary, Canada, to an American mother and a Cuban father. His origins have stirred controversy on the campaign trail with Trump claiming there are legitimate questions about whether his Canadian birth disqualifies him from being president or vice president of the United States. Cruz scoffed at that idea on Jan. 14, during a GOP presidential candidate debate in South Carolina. "I recognize that Donald is dismayed that his poll numbers are falling in Iowa. But the facts and the law here are really quite clear. Under longstanding U.S. law, the child of a U.S. citizen born abroad is a natural-born citizen," Cruz said. That's why Sen. John McCain, R-Ariz., who was born in Panama, could run for president in 2008, Cruz said during the debate. Houston attorney Newton Boris Schwartz Sr., 81, isn't so sure about Cruz's candidacy. Schwartz says the U.S. Constitution is unclear on the question of Cruz's eligibility in a lawsuit he filed against Cruz on Jan. 14 in Federal Court in Cruz's hometown of Houston. Schwartz claims in the lawsuit there is no U.S. Supreme Court precedent to determine if Cruz qualifies. "'Natural born citizen' has never been defined," the complaint states. Schwartz says his status as an eligible voter for the Nov. 1 presidential election gives him standing to bring the lawsuit. He seeks a declaration that Cruz is not "a 'natural born' citizen" and is "therefore ineligible to be elected, or serve as president or vice president of the U. S." Schwartz said he's voted for a Democrat in every presidential election since 1968 when he voted for Richard Nixon, a Republican, except in 1992 when he voted for Texas billionaire Ross Perot, who ran as an independent. "If I had to vote on who the candidates are now I would probably vote for Bernie Sanders. My wife is leaning toward Hillary Clinton," he said in a phone interview. Schwartz has practiced law for 61 years, including three years as a federal prosecutor in Houston and two years as a U.S. Air Force JAG officer, he said. He said he expects his case will lose before a trial court and the Fifth Circuit Court of Appeals in New Orleans, then move on to the Supreme Court where he expects it to "go 5-to-4 or 6-to-3 either way, so it's going to be an uphill fight." "This is a serious and substantial question. I'm trying to get it heard as quickly as we can to avoid a futile election. If Trump puts Cruz as his vice president even and he's later found disqualified, what do you do? You have to go back and have a new election for president or vice president," Schwartz said. Trump said during the debate that he's simply repeating what others have said about Cruz's presidential eligibility, including Cruz's former Harvard Law School professor Laurence Tribe. "There are other attorneys that feel, and very, very fine constitutional attorneys, that feel that because he was not born on the land, he cannot run for office," Trump said. "Here's the problem. We're running. We're running. He does great. I win. I choose him as my vice presidential candidate, and the Democrats sue because we can't take him along for the ride," Trump added. "I don't like that. OK?" Cruz said he's not worried about Trump's rhetoric at Thursday's presidential debate. Cruz is a Harvard-trained lawyer and served as Texas' solicitor general from 2003 to 2008, a job that required him to present legal arguments for the state before the U.S. Supreme Court. "I've spent my entire life defending the Constitution before the U.S. Supreme Court. And I'll tell you, I'm not going to be taking legal advice from Donald Trump," Cruz said. He also downplayed a recent New York Times article that reported he didn't disclose $1 million in loans he took out to finance his 2012 U.S. Senate campaign, including a $500,000 loan from Goldman Sachs, his wife Heidi's employer. "I made a paperwork error," Cruz admitted. He said he disclosed the loans on personal financial disclosures he filed with the U.S. Senate, but erred by not disclosing them in reports made to the Federal Election Commission. President Obama's presidency has been dogged by a similar "birther" conspiracy theory that contends he is an illegitimate president because he was born in Kenya, his father's homeland, not in Hawaii like his birth certificate says. Trump has been a vocal critic of Obama and has questioned the authenticity of the president's birth certificate. TERRAFORM GLOBAL: Class Actions Filed in California Related to IPO ------------------------------------------------------------------ TerraForm Global, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2015, for the quarterly period ended September 30, 2015, that separate purported class action lawsuits were filed on October 23, 2015 and October 30, 2015, in the Superior Court of the State of California for the County of San Mateo, against the Company, certain of its officers and directors, each of the underwriters of the Company's August 5, 2015 initial public offering (the "IPO") and SunEdison. Additionally, on October 29, 2015 and November 5, 2015, separate purported class action lawsuits were filed in the U.S. District Court for Northern District of California against the same defendants. The class action plaintiffs assert claims under Sections 11, 12(a)(2) and 15 of the Securities Act of 1933, as amended. The class action complaints allege, among other things, that the defendants made false and materially misleading statements and failed to disclose material information in the Registration Statement for the IPO regarding SunEdison and its recent operating results and business strategy. Among other relief, the class action complaints seek class certification, unspecified compensatory damages, rescission, attorneys' fees, costs and such other relief as the applicable court should deem just and proper. The Company intends to defend the class action lawsuits vigorously. The Company is still in the preliminary stages of reviewing the allegations made in the complaints and, as a result, is unable to provide any assurances as to the ultimate outcome of such lawsuits or that an adverse resolution of these lawsuits would not have a material adverse effect on the Company's consolidated financial position and results of operations. TEXAS A&M UNIVERSITY: Law Graduates' Suit Dismissed --------------------------------------------------- David Lee, writing for Courthouse News Services, that law school graduates claiming they were disavowed as alumni after Texas A&M bought their alma mater didn't show that their rights were violated, a federal judge in Fort Worth ruled. On Jan. 14, U.S. District Judge John McBryde dismissed a proposed class action lawsuit filed by lead plaintiff Kristin Brown, a graduate of Texas Wesleyan University School of Law, or TWU Law. Brown's lawsuit claims that Texas A&M University refused to reissue law diplomas to approximately 500 TWU law graduates after it purchased the downtown Fort Worth law school in 2013 and renamed it the Texas A&M University School of Law. The law school's graduates since the purchase have been accepted by Texas A&M as full alumni, have the updated Texas A&M school name on their diplomas, and are eligible to receive Aggie rings, Brown alleges. The "pre-acquisition" TWU graduates sued TWU and Texas A&M for negligence, tortious interference and breach of implied contract. They also sued for a declaratory judgment allowing them to refer to Texas A&M as their alma mater without fear of facing trademark infringement claims. When Texas A&M rejected the plaintiffs' request to reconsider, a dozen of them also filed a complaint against Texas A&M with the American Bar Association. The ABA responded that it has no role in student-school disputes. Brown and others say they have been damaged because they "have lost the ability to easily show that their juris doctor degrees are valid to potential employers and clients, as their law school is no longer easily located on many lists of accredited law schools." McBryde ruled against the TWU graduates for their declaratory judgment request, noting they admit they are using the Texas A&M trademarks in commerce and have not suffered any resulting consequences, leaving no "substantial controversy." "Even assuming the existence of a case or controversy as to infringement, plaintiff's claim is barred by sovereign immunity," the 12-page opinion states. The plaintiffs have also failed to show a violation of a "specific federal right" in claiming violations of due process, equal protection and other injuries under state law, McBryde ruled. "This they are unable to do. Aside from mentioning in a conclusory fashion that they have been denied due process and equal protection, plaintiffs have not alleged any facts to support the allegations," the judge wrote. "They allege 'unequal and irrational treatment,' but admit that they are not in the same category as those they want to be treated like. That is, they graduated from TWU Law and they want to be treated like those who graduated from A&M Law after the acquisition by A&M." McBryde questioned if Brown and the other litigating graduates would have standing in any event since "it appears that alumni generally do not have the right to interfere with the administration of their alma mater." Regarding the state law claims against the TWU, McBryde noted the allegations only described alleged wrongful conduct by Texas A&M. "At best, plaintiffs wish that Wesleyan defendants had done something to assure that A&M would acknowledge them as graduates," the judge wrote. "Plaintiffs do not allege that the Wesleyan defendants have failed or refused to provide them transcripts or references or help in proving that they graduated from an accredited law school." Emails requesting comment from Texas A&M and Warren Norred, attorney for the TWU graduates, were not immediately returned Jan. 15 afternoon. The case captioned, KRISTINE BROWN, ET AL., Plaintiffs, vs. TEXAS A&M UNIVERSITY SCHOOL OF LAW, ET AL., Defendants. NO. 4:15-CV-613- A (N.D. Tex.) TORMUS INC: Court Denies Dismissal of "Palma" Complaint ------------------------------------------------------- District Judge Ivan L. R. Lemelle of the United States District Court for the Eastern District of Louisiana denied Defendants' motion to dismiss Plaintiffs' Complaint in the case captioned, WILMER ALEX PALMA, ET AL., v. TORMUS INC., ET AL., SECTION "B" (2), Case No. 15-3025 (E.D. La.). Plaintiffs filed the action on July 28, 2015, seeking to recover unpaid overtime wages, interest, liquidated damages, and attorneys' fees and costs on behalf of themselves and other similarly situated employees who worked for Defendants during the past three years. Plaintiffs allege that they were both hired by Defendant Tormus in 2015 as "employees" as that term is defined in the FLSA, 29 U.S.C. Sec. 203(e), to perform general manual labor by moving furniture and helping with furniture deliveries. Plaintiffs allege that Defendants paid them $10.00 per hour by cash, and that they were not paid one - and -half times this hourly rate despite often working more than forty hours a week. In the motion, Defendants sought involuntary dismissal of Plaintiffs' Complaint with prejudice, or, in the alternative, involuntary dismissal of Plaintiffs' Complaint against Defendants Iseed and Isaid with prejudice, and either amendment of the complaint to reflect individual actions or restriction of the collective opt-in feature to employees that were hired by Defendant Tormus after April 1, 2015. Defendants contended that Plaintiffs have failed to provide evidence of a "factual nexus" between the manner in which Defendants' alleged policy affected the Plaintiffs and the manner in which it affected the other employees, so that a collective action has not been properly asserted. Plaintiffs argued that their Complaint meets each of the four requirements for alleging a claim for unpaid overtime wages under the FLSA. Additionally, Plaintiffs asserted that Defendants' attempt to have the collective action dismissed is premature, as certification has not yet occurred. In his Order and Reasons dated December 23, 2015 available at http://is.gd/ZxVl7sfrom Leagle.com, Judge Lemelle concluded that By alleging the amount that Defendants paid Plaintiffs, the time period during which Plaintiffs worked, and that Plaintiffs worked in excess of 40 hours and were never paid one - and -half times their hourly rate, Plaintiffs have met their burden. Defendants cited no law to support their position that Plaintiffs' Complaint was insufficient. Plaintiffs are represented by: Roberto L. Costales, Esq. COSTALES LAW OFFICE 3801 Canal St New Orleans, LA 70119 Tel: (504)534-5005 - and - William Henry Beaumont, Esq. WILLIAM H. BEAUMONT LAW 3801 Canal St New Orleans, LA 70119 Tel: (504)483-8008 Defendants are represented by: Scott J. Spivey, Esq. A Professional Law Corporation 3232 Edenborn Ave, Ste C New Orleans, LA Tel: (504)509-6889 TROY CONSTRUCTION: Conditional Cert. Bid in "Stone" Case Granted ---------------------------------------------------------------- District Judge James M. Munley granted Plaintiff's motion for conditional certification in the captioned case LINDA STONE, Plaintiff, v. TROY CONSTRUCTION, LLC, Defendant, Case No.: 3:14CV306, (M.D. Pa.) Plaintiff raises claims under the Fair Labor Standards Act of 1938 (FLSA), the Pennsylvania Minimum Wage Act (PMWA), and the Pennsylvania Wage Payment and Collection Law (PWPCL). Plaintiff alleges that defendant's company-wide policy and practice from February 2011 through the present has been to pay per diems to the vast majority of its non-exempt, hourly employees. The parties agreed to engage in an initial phase of discovery limited to class issues prior to the court ruling on plaintiff's then-anticipated Rule 23 and FLSA conditional certification motion. In his Memorandum dated December 1, 2015 available at http://is.gd/I7qiXTfrom Leagle.com, Judge Munley granted the Plaintiff's motion for conditional certification of a collective action pursuant to the Fair Labor Standards Act of 1938, 29 U.S.C. Section 216(b) and certification of a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure. Pursuant to the FLSA, the court will grant Plaintiffs' motion for the certification of an FLSA class consisting of non-exempt employees of defendant who, within the past three years, permanently resided within fifty miles of their worksite and received at least one per diem in a workweek in which they worked over 40 hours, and a Rule 23 class of the same employees, but limited to those working in Pennsylvania. At this stage in the case, plaintiff has presented sufficient evidence that the policy was generally applicable, and that individual damages can be proven or disproven quite easily by Defendant's payroll records. Thus, the legal issues in this case are entirely common, and the common factual issues predominate over the individual. Further, the predominance of common issues of law and fact means that no one individual class member has any greater interest in controlling the litigation than another, and that a class action is the most efficient means to resolve the dispute. Defendant posits that plaintiff's interests run counter to those of any potential class member who properly received per diems. Defendant's logic fails to account for the obvious fact that any employee who properly received per diems would have no claim against defendant. Such class members have suffered no damages and have suffered no wrong in need of righting, so Plaintiff cannot possibly harm their interests by pursuing her claims on behalf of those class members who have been shortchanged in their overtime payments. Justin L. Swidler, Esq. Matthew D. Miller, Esq. and Richard S. Swartz, Esq. of SWARTZ SWIDLER LLC serve as counsel for Plaintiff Linda Stone, on on behalf of herself and those similarly situated Jacob E Godard, Esq. -- Lawrence Bradley Hancock, Esq. -- hancockb@gtlaw.com -- Michael Burnett, Esq. -- burnettm@gtlaw.com and James N. Boudreau, Esq. -- boudreauj@gtlaw.com of Greenberg Traurig, LLP serve as counsel for Defendant Troy Construction, LLC TWITTER INC: Plaintiff Drops "Raney" Eavesdropping Suit ------------------------------------------------------- Nicholas Iovino, writing for Courthouse News Services, reported that a class of Twitter users on Jan. 14 voluntarily dismissed a lawsuit in San Francisco claiming the social media company eavesdropped on users' private messages. Lead plaintiff Wilford Raney sued the social network in September, claiming Twitter intercepted direct messages to replace hyperlinks with its own Twitter-generated links. Altering links in those messages demonstrates the source of traffic came from Twitter, increasing the tech company's "perceived value to third-party websites and would-be advertisers," according to the lawsuit. Raney claimed the social network never disclosed the fact that it seeks out and replaces links in private messages, which users expect to remain private. On Jan. 14, attorneys for Raney notified the court of its decision to voluntarily dismiss the class action based on new information learned in a Jan. 6 deposition. Class attorney Alexander Nguyen of Edelson P.C. declined to comment on why his client chose to dismiss the suit or what information was obtained in the deposition. Twitter previously filed a motion to dismiss on Nov. 9, claiming the laws it was accused of violating in the complaint - the Wiretap Act and Children's Internet Protection Act - do not apply to processing electronic communications, such as direct messages. Twitter's attorney, Michael Rodes of Cooley LLP, did not immediately respond to a phone call seeking comment Friday morning. A Twitter spokeswoman on Friday would not say whether Twitter views direct messages exchanged between its users, but stated in an email: "We're pleased the case was voluntarily dismissed by the Plaintiff without us paying anything or entering into a settlement." UBER TECHNOLOGIES: Arbitration Bid for Absent Class Members Nixed ----------------------------------------------------------------- District Judge Edward M. Chen of the United States District Court for the Northern District of California denied Uber's motions to compel arbitration of the absent class members in the case captioned, DOUGLAS O'CONNOR, et al., Plaintiffs, v. UBER TECHNOLOGIES, INC., et al., Defendants, Case No. 13-CV-03826-EMC (N.D. Cal.). Plaintiffs Douglas O'Connor, Thomas Colopy, Matthew Manahan, and Elie Gurfinkel are current or former drivers who have performed services for Defendant Uber Technologies, Inc. They are prosecuting the instant class action against Uber, alleging that Uber has violated California's Unfair Competition Law (UCL) by violating Section 351 of the Labor Code. On September 1, 2015, the Court certified a class of "All UberBlack, UberX, and UberSUV drivers who had driven for Uber in the state of California at any time since August 16, 2009, and who (1) signed up to drive directly with Uber or an Uber subsidiary under their individual name, and (2) are/were paid by Uber or an Uber subsidiary and in their individual name, and (3) did not electronically accept any contract with Uber or one of Uber's subsidiaries which contains the notice and opt-out provisions previously ordered by this Court unless the driver timely opted-out of that contract's arbitration agreement." From February 2013 to December 10, 2013, Uber and Rasier issued four agreements and one driver addendum that incorporate the arbitration provision at issue in the instant motion. In August 2013, Plaintiffs filed an emergency motion for a protective order to strike the arbitration clauses. On December 6, 2013, the Court issued an order "declining to rule on the unconscionability of the arbitration provision because there is no allegation that a motion to compel arbitration is pending or threatened. Uber moved to compel arbitration as to absent class members who are subject to the 2013 Agreements to arbitrate their disputes with Uber. In his Order dated December 10, 2015 available at http://is.gd/CWxDxNfrom Leagle.com, Judge Chen found that the 2013 Agreements contain a non-severable blanket PAGA waiver which is void a matter of public policy. The inability to sever the PAGA waiver causes the entire arbitration agreement to fail. Plaintiffs are represented by Adelaide Pagano, Esq. -- apagano@llrlaw.com -- Sara Smolik, Esq. -- ssmolik@llrlaw.com -- Shannon Liss-Riordan, Esq. -- slissriordan@llrlaw.com -- LICHTEN & LISS-RIORDAN, P.C. Uber Technologies is represented by Andrew Michael Spurchise, Esq. -- aspurchise@littler.com -- LITTLER MENDELSON, Marcellus Antonio McRae, Esq. -- mmcrae@gibsondunn.com -- Theane D. Evangelis, Esq. -- tevangelis@gibsondunn.com -- Brandon J. Stoker, Esq. -- bstoker@gibsondunn.com -- Debra W. Yang, Esq. -- dwongyang@gibsondunn.com, Joshua Seth Lipshutz, Esq. - jlipshutz@gibsondunn.com -- Kevin Joseph Ring-Dowell, Esq. -- kringdowell@gibsondunn.com -- GIBSON DUNN & CRUTCHER LLP UNITED AIRLINES: 9th Cir. Upholds Dismissal of Suit over Kiosks --------------------------------------------------------------- Maria Dinzeo, writing for Courthouse News Services, reported that United Airlines need not face a class action in San Francisco over its limited number of kiosks accessible to blind travelers at California airports, the Ninth Circuit ruled Jan. 19. Issuing its decision 38 months after hearing oral arguments, the three-judge panel said federal statutes pre-empt the National Federation for the Blind's claims for violation of California's Unruh Civil Rights Act. Such claims furthermore do not relate to a "service" provided by United, as outlined by the Airline Deregulation Act, according to the ruling. The National Federation of the Blind sued United Airlines back in October 2010, joined by three individuals - Michael May, Michael Hingson and Christina Thomas. Rather than offering audio output or other blind-friendly alternatives, United's machines operated exclusively by video and touch-screen navigation, according to the complaint U.S. District Judge William Alsup dismissed the action, finding the claims pre-empted by both the Airline Deregulation Act and the Air Carrier Access Act. Affirming on Jan. 19, the Ninth Circuit pointed to its en banc opinion in the 1998 case Charas v. Trans World Airlines, which determined that the term "service" in the Americans with Disabilities Act refers to the provision of air transportation - such as "the prices, schedules, origins and destinations of the point-to-point transportation of passengers, cargo or mail," not airline-provided amenities like drinks and luggage handling. Though the Federal Aviation Act contains a broad savings clause, it did not result in a reversal today. "According to the federation, any state-law claims that fall outside the scope of the ADA express preemption provision are necessarily preserved by the FAA's savings clause. Not so," Judge Marsha Berzon wrote for a three-judge panel. Under the federation's interpretation, "a passenger could sue an airline for violating any state standard of care not expressly preempted by the ADA, notwithstanding federal regulations covering in depth the particular field at issue," Berzon noted. "The result would be chaotic." New Department of Transportations regulations on accessibility of airport kiosks furthermore speak "directly to the concerns raised by the federation's suit," the ruling states. "Given its great detail and pervasive extent, the new regulation preempts any state regulation of that same field," Berzon wrote. The case captioned, NATIONAL FEDERATION OF THE BLIND, on behalf of its members and itself; MICHAEL MAY; MICHAEL HINGSON; CHRISTINA THOMAS, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants v. UNITED AIRLINES INC., Defendant-Appellee. NO. 11-16240 (9th Cir.). UNITED AIRLINES: Faces Class Suit over Defunct Discount Program --------------------------------------------------------------- Jack Bouboushian, writing for Courthouse News Service, reported that lifetime members of a now-defunct United Airlines senior discount program want a refund, claiming the airline no longer offers them the promised discounts. Howard Neft filed a class action in Chicago against United Continental Holdings and United Airlines in federal court on Jan. 19. In 1999 or 2000, Neft bought a Silver Wings Plus program lifetime membership, a discount program specifically offered to seniors, according to the complaint. The Silver Wings Plus program, launched by United in 1986, offered members low, fixed- zone fares in exchange for a one-time fee of $225. The airline discontinued the program in 2007 as part of cost- cutting measures, but did not offer members a refund - "perhaps recognizing that it would spend hundred of millions of dollars if it provided a refund to lifetime members," Neft's lawsuit claims. Instead, United said it would continue to provide existing members with access to substantial travel discounts. Before the program was terminated, Silver Wings offered members domestic fares for as low as $118 roundtrip, and international fares for as low as $475 roundtrip, according to the complaint. "For at least the past two years, however, plaintiff has been unable to book a zone fares flight with United, either by phone or online," Neft says. United's website instructs Silver Wing lifetime members to search for zone fares online by entering "silverwing" in the offer code box. Neft says he has followed these instructions, but never found any available discounted fares. "United's agents have no knowledge of the program and/or zone fares, United's website does not retrieve any searches for zone fares flights, and directs plaintiff to call United's agents," the complaint states. "The remaining Silver Wings lifetime members have experienced, and continue to experience, the same or similar difficulties in booking a zone fares flight with United." Neft claims United's conduct has essentially cancelled the program, and he seeks to recover the $225 fee he and other class members paid to join the program, plus interest and compensatory damages. He is represented by Robert Stein III with Alvarado Smith in Santa Ana, Calif. United did not immediately respond to an emailed request for comment sent Jan. 20 afternoon. Neft's lawsuit was filed less than two weeks after the Seventh Circuit ruled that United frequent flyers could not recover damages for benefits lost when the airline changed the value of miles awarded in 2010. UNITED STATES: Detainees' Suit Certified as Class Suit ------------------------------------------------------ Tim Hull, writing for Courthouse News Services, reported that a federal judge in Tucson, Arizona, certified a class of civil detainees who accused the Tucson Sector Border Patrol of denying them sleep, food, water, medicine and basic sanitation in Southern Arizona immigration jails. Norlan Flores, a 34-year-old Nicaraguan with two stints in Border Patrol jails in the Tucson Sector, and two Jane Does still in jail sued the Secretary of Homeland Security and other federal officials in June 2015. They claim that holding cells at several Tucson Sector jails are unconstitutionally "inhuman and punitive," that detainees are often "packed into overcrowded and filthy holding cells with the lights glaring day and night; stripped of outer layers of clothing and forced to suffer in brutally cold temperatures; deprived of beds, bedding, and sleep; denied adequate food, water, medicine and medical care, and basic sanitation and hygiene items such as soap, sufficient toilet paper, sanitary napkins, diapers, and showers; and held incommunicado in these conditions for days." U.S. District Judge David Bury on Jan.11 rejected the government's arguments that the potential class lacked commonality. The government claimed such conditions are not widespread, and applied to the treatment of criminals under the Eight Amendment rather than civil immigration detainees under the Fifth Amendment. Bury called the government's reasoning "absurd." "Such a finding would lead to the absurd result that only criminal detainees, not civil detainees, could ever litigate system-wide conditions of confinement as a class," Bury wrote in his Jan. 11 order. "For purposes of commonality the operative question is not whether the same detention status and same legal standard applies as applies in other analogous class action cases." Citing the landmark ruling in Walmart v. Duke (2011), Bury added: "(T)he question is whether the putative class members, themselves, present a common contention that 'is capable of classwide resolution,' meaning 'determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.'" Bury also rejected the government's claim that Flores should be dismissed as a plaintiff and class representative because he was not in custody when the lawsuit was filed. "For purposes of standing, Flores's previous 36-hour detention without contact with counsel after a minor traffic violation, coupled with his indeterminate wait for his approved Visa is sufficient to show an 'actual or imminent invasion of a legally protected interest,'" Bury ruled. The judge certified a class that includes "All individuals who are now or in the future will be detained for one or more nights at a CBP facility within the Border Patrol's Tucson Sector," though he directed the plaintiffs to file an amendment "better describing" the phrase "one or more nights." Bury also appointed Flores and the two Jane Doe plaintiffs as class representatives. The class is potentially huge. Some 200,000 people were arrested in the Border Patrol's Tucson Sector in 2013-2014, which includes eight stations in four counties. "The class is certified as to defendants' alleged violations under the Fifth Amendment Due Process Clause and the APA [Administrative Procedures Act] of the following asserted rights: The right to sleep, the right to hygienic and sanitary conditions, the right to adequate medical care, the right to adequate food and water, and the right to warmth," Bury wrote. The plaintiffs are represented by Morrison & Foerster, the American Immigration Council, the National Immigration Law Center, the ACLU of Arizona, and the Lawyers' Committee for Civil Rights of the San Francisco Bay Area. "With these rulings, we can now focus on building a record and documenting the abhorrent conditions that detained individuals must endure and to ending these conditions once and for all," American Immigration Council attorney Mary Kenney said in a statement. A Border Patrol official said Thursday that it is CBP policy not to comment on pending litigation. The case is captioned, Unknown Parties, et al.,Plaintiffs, v. Jeh Johnson, et al., Defendants. Case Number CV 15-00250-TUC-DCB (D. Ariz.) USA TECHNOLOGIES: "Messner" Class Action Filed in Oct. in E.D. Pa. ------------------------------------------------------------------ USA Technologies, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2015, for the quarterly period ended September 30, 2015, that a purported class action complaint was filed on October 1, 2015, in the United States District Court for the Eastern District of Pennsylvania by Steven P. Messner, individually and on behalf of all others similarly situated, against the Company and its executive officers, alleging violations under the Securities Exchange Act of 1934. The lawsuit was filed on behalf of a purported class of investors who purchased or otherwise acquired securities of the Company between September 29, 2014 through September 29, 2015. The complaint alleges that the defendants made materially false and misleading statements, relating to, among other things, the failure to identify a large number of uncollectible small balance accounts. The complaint seeks certification as a class action and unspecified damages including attorneys' fees and other costs. Based on its review of the complaint, the Company believes that the claims alleged in the complaint lack merit, and intends to vigorously defend against the claims. VAALCO ENERGY: Vladimir Gusinsky Files Shareholder Suit in Del. --------------------------------------------------------------- The Vladimir Gusinsky Living Trust, on behalf of itself and all others similarly situated, v. Steven P. Guidry, Frederick W. Brazleton, O. Donaldson Chapoton, LLB, James B. Jennings, John J. Myers, Jr., Andrew L. Fawthrop, Steven J. Pully, and Vaalco Energy, Inc., Case No. 11775 (Del. Ch., December 7, 2015) is a stockholder class action. VAALCO is an independent energy company principally engaged in the acquisition, exploration, development, and production of crude oil and natural gas. The Company's recent performance has been abysmal. The Plaintiff is represented by: Joel Friedlander, Esq. Jeffrey M. Gorris, Esq. Christopher M. Foulds, Esq. Benjamin P. Chapple, Esq. FRIEDLANDER & GORRIS,P.A 1201 N. Market Street, Suite 2200 Wilmington, DE 19801 Phone: (302) 573-3500 - and - Mark Lebovitch, Esq. Christopher Orrico, Esq. John Vielandi, Esq. BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 1251 Avenue of the Americas New York, NY 10020 Phone: (212) 554-1400 - and - Jason M. Leviton, Esq. BLOCK & LEVITON LLP 155 Federal Street, Suite 400 Boston, MA 02110 Phone: (617) 398-5600 VALLEYCREST LANDSCAPE: Faces Suit Over FLSA Violation ----------------------------------------------------- Luis A. Ortiz, Kelvin X. Vargas , and all others similarly situated v. Valleycrest Landscape Maintenance, Inc., Case No. 1:15-cv-24547 (S.D. Fla., December 10, 2015), seek to recover regular wages, overtime compensation, liquidated damages, and the costs and reasonably attorney's fees under the provisions of Fair Labor Standards Act. The Defendant is a provider of landscape designing, lawn maintenance, and related services. The Plaintiffs are represented by: Zandro E. Palma, Esq. ZANDRO E. PALMA, P.A. 9100 S. Dadeland Blvd., Ste 1500 Miami, FL 33156 Tel: (305) 446-1500 Fax: (305) 446-1502 E-mail: zep@thepalmalawgroup.com VECTREN UTILITY: Defending Class Suit by SIGECO Employees --------------------------------------------------------- Vectren Utility Holdings, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2015, for the quarterly period ended September 30, 2015, that the Company is defending a class action complaint by employees of Southern Indiana Gas and Electric Company (SIGECO or Vectren Energy Delivery of Indiana - South). During the third quarter of 2014, the Company was notified of claims by a group of current and former SIGECO employees ("claimants") who participated in the Pension Plan for Salaried Employees of SIGECO ("SIGECO Salaried Plan"). That plan was merged into the Vectren Corporation Combined Non-Bargaining Retirement Plan ("Vectren Combined Plan") effective July 1, 2000. The claims relate to the claimants' election for benefits to be calculated under the Vectren Combined Plan's cash-balance formula rather than the SIGECO Salaried Plan formula in effect prior to the formation of Vectren. On March 12, 2015, certain claimants filed a Class Action Complaint against the Vectren Combined Plan and the Company in federal district court requesting that a class be certified and for various relief including that the Combined Plan be reformed and benefits thereunder be recalculated. The Company denied the allegations set forth in the Complaint. The Company is unable to quantify any potential impact of the claims. The Company does not expect, however, the outcome would have a material adverse effect on the Company's liquidity, results of operations or financial condition. VOLKSWAGEN GROUP: Bernstein Litowitz Named Lead Atty in MDL 2672 ---------------------------------------------------------------- District Judge Charles R. Breyer of the United States District Court for Northern District of California appointed Arkansas State Highway Employees Retirement System (ASHERS) as lead plaintiff and Bernstein Litowitz Berger & Grossman LLP as lead counsel in the case captioned, IN RE: VOLKSWAGEN "CLEAN DIESEL" MARKETING, SALES PRACTICES, AND PRODUCTS LIABILITY LITIGATION. No. 2672 This Order Relates To: City of St. Clair Shores, 15-1228 (E.D. Va) Travalio, 15-7157 (D.N.J.) George Leon Family Trust, 15-7283 (D.N.J.) Charter Twp. of Clinton, 15-13999 (E.D. Mich.) Wolfenbarger, 15- 326 (E.D. Tenn.), Case No. 2672 CRB (JSC) (N.D. Cal.). On December 10, 2015, the Judicial Panel on Multidistrict Litigation conditionally transferred five Plaintiff Securities Law Reform Act (PSLRA) securities actions to the Court for consolidated pretrial proceedings. The Court subsequently extended the deadline to move for appointment of lead plaintiff to December 31, 2015. In the motion, Arkansas State Highway Employees Retirement System (ASHERS) has filed motions to serve as Lead Plaintiff in the Virginia, New Jersey, and Michigan actions. All other Lead Plaintiff applicants have since withdrawn their motions, and no party has opposed ASHERS' motions. In his Pre-Trial Order dated January 5, 2016 available at http://is.gd/MjFXx9from Leagle.com, Judge Breyer found ASHERS as the presumptively most adequate plaintiff under the PSLRA because it has met the typicality and adequacy requirements under Fed.R.Civ.P. Rule 23 and no member of the purported classes has provided proof that ASHER will not fairly and adequately protect the interests of the class or is otherwise subject to unique defenses that render ASHER incapable of adequately representing the class. The Court also approved Bernstein Litowitz Berger & Grossman LLP to be lead counsel in the action because no parties have objected to the appointment. Plaintiffs are represented by Steve W. Berman, Esq. - steve@hbsslaw.com, Thomas Eric Loeser, Esq. -- toml@hbsslaw.com -- Jeff D. Friedman, Esq. -- jefff@hbsslaw.com -- Robert B. Carey, Esq. -- rob@hbsslaw.com -- HAGENS BERMAN SOBOL SHAPIRO LLP Defendants are represented by Amie Adelia Vague, Esq. -- avague@lightfootlaw.com -- LIGHTFOOT FRANKLIN & WHITE, C. Vernon Hartline, Jr., Esq. -- vhartline@hdbdlaw.com -- HARTLINE DACUS BARGER DREYER LLP, Casey Erin Lucier, Esq. -- clucier@mcguirewoods.com -- Howard Feller, Esq. -- hfeller@mcguirewoods.com -- MCGUIREWOODS LLP, Colin Hampton Tucker, Esq. -- chtucker@rhodesokla.com -- John H. Tucker, Esq. -- jhtucker@rhodesokla.com -- Kerry R. Lewis, Esq. -- klewis@rhodesokla.com -- RHODES HIERONYMUS JONES TUCKER & GABLE, Dana Woodrum Lang, Esq. -- dlang@wcsr.com -- Henry Buist Smythe, Jr., Esq. -- HSmythe@wcsr.com -- Kurt E. Lindquist, II, Esq. -- klindquist@wcsr.com -- WOMBLE CARLYLE SANDRIDGE AND RICE, John W. Cowden, Esq. -- cowden@bscr-law.com -- BAKER STERCHI COWDEN AND RICE LLC, Larry Martin Roth, Esq. -- lroth@rumberger.com -- Michael D. Begey, Esq. -- mbegey@rumberger.com -- RUMBERGER, KIRK & CALDWELL, PA, Michael R. McDonald, Esq. -- mmcdonald@gibbonslaw.com -- Thomas R. Valen, Esq. -- tvalen@gibbonslaw.com -- GIBBONS PC VOLTARI CORPORATION: Oral Argument Before 9th Cir. Set for Apr. 8 ----------------------------------------------------------------- Voltari Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2015, for the quarterly period ended September 30, 2015, that an appeal in a putative securities class action remains pending. "We previously announced that Joe Callan filed a putative securities class action complaint in the U.S. District Court, Western District of Washington at Seattle on behalf of all persons who purchased or otherwise acquired common stock of Motricity between June 18, 2010 and August 9, 2011 or in Motricity's initial public offering," the Company said. "Motricity, which was our predecessor registrant, is now our wholly-owned subsidiary and has changed its name to Voltari Operating Corp. The defendants in the case were Motricity, certain of our current and former directors and officers, including Ryan K. Wuerch, James R. Smith, Jr., Allyn P. Hebner, James N. Ryan, Jeffrey A. Bowden, Hunter C. Gary, Brett Icahn, Lady Barbara Judge CBE, Suzanne H. King, Brian V. Turner; and the underwriters in Motricity's initial public offering, including J.P. Morgan Securities, Inc., Goldman, Sachs & Co., Deutsche Bank Securities Inc., RBC Capital Markets Corporation, Robert W. Baird & Co Incorporated, Needham & Company, LLC and Pacific Crest Securities LLC." "The complaint alleged violations under Sections 11 and 15 of the Securities Act of 1933, as amended, (the "Securities Act") and Section 20(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), by all defendants and under Section 10(b) of the Exchange Act by Motricity and those of our former and current officers who are named as defendants. The complaint sought, inter alia, damages, including interest and plaintiff's costs and rescission. A second putative securities class action complaint was filed by Mark Couch in October 2011 in the same court, also related to alleged violations under Sections 11 and 15 of the Securities Act, and Sections 10(b) and 20(a) of the Exchange Act. "On November 7, 2011, the class actions were consolidated, and lead plaintiffs were appointed pursuant to the Private Securities Litigation Reform Act. On December 16, 2011, plaintiffs filed a consolidated complaint which added a claim under Section 12 of the Securities Act to its allegations of violations of the securities laws and extended the putative class period from August 9, 2011 to November 14, 2011. The plaintiffs filed an amended complaint on May 11, 2012 and a second amended complaint on July 11, 2012. "On August 1, 2012, we filed a motion to dismiss the second amended complaint, which was granted on January 17, 2013. A third amended complaint was filed on April 17, 2013. On May 30, 2013, we filed a motion to dismiss the third amended complaint, which was granted by the Court on October 1, 2013. "On October 31, 2013, the plaintiffs filed a notice of appeal of the dismissal to the United States Court of Appeals for the Ninth Circuit. On April 25, 2014, the plaintiffs filed their opening appellate brief and on July 24, 2014 we filed our answering brief." Oral argument in Mosco, et al. v. Motricity Inc, et al., No. 13- 36029 (9th Cir.), is currently scheduled for 9:00 a.m. on Fri., Apr. 8, 2016, in Seattle. W.A. THOMPSON: "Murillo" Suit Seeks Minimum, Overtime Wages ----------------------------------------------------------- Edwin Murillo, individually and on behalf of other members of the general public similarly situated, and on behalf of aggrieved employees pursuant to the Private Attorneys General Act, v. W.A. Thompson, Inc., a California corporation; W.A. Thompson Distributing CO. Of Barstow, a California corporation; W.A. Thompson Distributing CO. of Moiave, a California corporation; and DOES 1 through 50, inclusive, Case No. BC603395 (Cal. Super., County of Los Angeles, December 8, 2015), seeks meal period and rest break wages, minimum and overtime wages, and penalties under the Labor Code, Industrial Welfare Commission Wage Order and Business and Professions Code. Defendants are beverage distribution companies with facilities located in Bakersfield, California, Lancaster, California and Barstow California. The Plaintiff is represented by: Douglas Han., Esq. Shunt Tatavos-Gharajeh., Esq. JUSTICE LAW CORPORATION 411 North Central Avenue, Suite 500 Glendale, CA 91203 Phone: (818) 230-7502 Fax: (818) 230-7259 WASH.IO INC: "Bennett" Suit Seeks Damages for Labor Code Breach --------------------------------------------------------------- Shardae Bennett, and all others similarly situated v. WASH.IO, Inc. and Does 1 through 10, Case No. BC603067 (Cal. Super., December 8, 2015), seeks damages and injunctive relief for Defendants' violation of the Labor Code. WASH.IO, Inc. is a corporation whose business involved pick-up and delivery and laundry and dry cleaning for customers in various locations in the State of California, including the City and County of Los Angeles. The Plaintiff is represented by: Renee Mochkatel, Esq. ALLRED, MAROKO & GOLDBERG 6300 Wilshire Blvd., Suite 1500 Los Angeles, CA 90048-5217 Tel: (323) 653-6530 Fax: (323) 653-1660 - and - James H. Cordes, Esq. 831 State St., Ste. 205 Santa Barbara, CA 93101 Tel: (805) 965-6800 Fax: (805) 965-5556 WCA WASTE: Bid to Remand or Dismiss Royal American Suit Denied -------------------------------------------------------------- District Judge Mark E. Walker of the United States District Court for Northern District of Florida denied Defendant's motion to dismiss or remand in the case captioned, ROYAL AMERICAN MANAGEMENT, INC., HOUSING PARTNERS OF GAINESVILLE, FL., LTD., RESERVE AT KANAPAHA II, LTD., HUNTERS RUN APARTMENTS, LTD., and ALACHUA APARTMENTS, LTD., Plaintiffs, v. WCA WASTE CORPORATION, WCA OF FLORIDA LLC, Defendants, Case No. 1:15-CV 151-MW/GRJ (N.D. Fla.). On June 17, 2015, Royal American Management, Inc. brought a proposed class action in state court against WCA Waste Corporation and WCA of Florida, LLC, which provide waste-disposal services. The lawsuit concerned two fees charged by Defendants: a "fuel surcharge" and an "environmental fee." The initial complaint asserted that charging these fees was a violation of the Florida Deceptive and Unfair Trade Practices Act, Florida Statutes, and a breach of a uniform contract between each proposed class member and Defendants. Royal American alleged that it paid these fees to Defendants. But attached to the initial complaint was a service agreement between Defendants and "Reserve at Kanapaha I," which did not mention Royal American. Defendants received service of process on June 24, 2015, and July 10, 2015, respectively. On July 23, 2015, Defendants removed the case to this Court. The notice of removal invoked this Court's original jurisdiction under the Class Action Fairness Act, specifically 28 U.S.C. Sec. 1332(d). In the motion, Defendants moved to remand the case to state court or dismiss the case. Defendants said that Royal American never had standing to sue them. They asserted that Royal American did not fix this supposed jurisdictional defect by amending the complaint to add the apartment entities as Plaintiffs. Finally, they argued that the state court never had subject-matter jurisdiction and so the case should be dismissed under the doctrine of derivative jurisdiction. In his Order dated January4, 2016 available at http://is.gd/2veDvW from Leagle.com, Judge Walker found that Defendants removed the case nearly 5 months before moving to remand or dismiss in violation of the time set by statute for Defendants to raise the procedural objection to their own removal under either Sec. 1441(a) or Sec. 1453(b) removals. Plaintiffs are represented by: Ryan Blake Hobbs, Esq. BROOKS LEBOEUF BENNETT ETC PA 909 East Park Avenue Tallahassee, FL 32301 Tel: (850)222-2000 - and - Nicholas William Armstrong, Esq. Oscar Monfort Price, Iv, Esq. PRICE ARMSTRONG LLC 2421 2nd Ave N #1, Birmingham, AL 35203 Tel: (205)208-9588 Defendants are represented by Bryan O. Balogh, Esq. -- bbalogh@burr.com -- Martin E. Burke, Esq. -- mburke@burr.com -- BURR & FORMAN LLP & John D. Jopling, Esq. -- jjopling@dellgraham.com -- DELL GRAHAM PA YAHOO! INC: Class Cert. Bid in "Johnson" Case Granted in Part ------------------------------------------------------------- District Judge Manish S. Shah of the United States District Court for the Northern District of Illinois granted in part Plaintiffs' motion for class certification in the case captioned, RACHEL JOHNSON and ZENAIDA CALDERIN, Plaintiffs, v. YAHOO!, INC., Defendant, Case Nos. 14CV2028, 14 CV 2753 (N.D. Ill.). Plaintiffs are cell phone subscribers who each received at least two text messages transmitted by defendant Yahoo!. The first: personalized text messages originally sent to plaintiffs by some non-party. The second: Yahoo!'s explanation for why plaintiffs received the first. While plaintiffs take no issue with the former, they contend Yahoo!'s sending of the latter violated the Telephone Consumer Protection Act. Plaintiffs contend that in sending them these Welcome Messages, defendant violated the Telephone Consumer Protection Act, which makes it unlawful to make any call using any automatic telephone dialing system to any cellular telephone service. In the motion, Plaintiffs seek to represent a class of "All persons within the United States to whose cellular telephone number Yahoo! sent the Welcome Message during the period: (i) commencing March 1, 2013 through March 31, 2013, and while such cellular number was assigned to Sprint or (ii) commencing April 1, 2014 through April 30, 2014 and while such cellular number was assigned to T-Mobile" and two subclasses of "Subclass A: All persons within the United States to whose cellular telephone number Yahoo! sent the Welcome Message during the period commencing March 1, 2013 through March 31, 2013, while such cellular number was assigned to Sprint, and whose cellular telephone number is not associated with a Yahoo! user in Yahoo!'s records. Subclass B: All persons within the United States to whose cellular telephone number Yahoo! sent the Welcome Message during the period commencing April 1, 2014 through April 30, 2014, while such cellular number was assigned to T-Mobile, and whose cellular telephone number is associated with a Yahoo! user in Yahoo!'s records." In the Memorandum Opinion and Order dated January 4, 2016 available at http://is.gd/TfM9yBfrom Leagle.com, Judge Shah found that Plaintiffs failed to meet the superiority requirement and certified a class of "All persons within the United States to whose cellular telephone number Yahoo! sent the Welcome Message during the period commencing March 1, 2013 through March 31, 2013, while such cellular number was assigned to Sprint, and whose cellular telephone number is not associated with a Yahoo! user in Yahoo!'s records." The Court designated Plaintiff Johnson as class representative. Rachel Johnson is represented by: Keith James Keogh, Esq. Timothy J. Sostrin, Esq. Michael S. Hilicki, Esq. KEOGH LAW, LTD 55 W Monroe St #3390, Chicago, IL 60603 Tel: (312)726-1092 - and - Seyed Abbas Kazerounian, Esq. -- ak@kazlg.com -- KAZEROUNI LAW GROUP, APC, David J. McGlothlin, Esq. -- david@westcoastlitigation.com -- Joshua Branden Swigart, Esq. -- josh@westcoastlitigation.com -- HYDE & SWIGART Defendants are represented by Francis A. Citera, Esq. -- citerag@gtlaw.com -- Brett Michael Doran, Esq. -- doranb@gtlaw.com -- Ian Charles Ballon, Esq. -- balloni@gtlaw.com -- Justin Alexander Barton, Esq. -- bartonj@gtlaw.com -- Lori Chang, Esq. -- changl@gtlaw.com -- Lucia Lynn Marker-Moore, Esq. -- marker- moorel@gtlaw.com -- Nina D. Boyajian, Esq. -- boyajiann@gtlaw.com -- GREENBERG TRAURIG, LLP ZAFGEN INC: Lead Plaintiffs & Counsel Appointed in "Bessler" ------------------------------------------------------------ Zafgen, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 13, 2015, for the quarterly period ended September 30, 2015, that a purported stockholder of the Company filed on October 21, 2015, a putative class action lawsuit in the U.S. District Court for the District of Massachusetts, against the Company and Thomas E. Hughes, entitled Aviad Bessler v. Zafgen, Inc. and Thomas E. Hughes, No. 1:15-cv-13618. The lawsuit alleges violations of Sections 10(b), 20(a) and Rule 10b-5 of the Securities Exchange Act of 1934 by making allegedly false and misleading statements and omissions about the Company's clinical trials for its drug beloranib. The lawsuit seeks, among other things, compensatory damages in connection with the Company's allegedly inflated stock price between January 12, 2015 and October 16, 2015 as a result of those allegedly false and misleading statements, as well as punitive damages, interest, attorneys' fees and costs. The Company is currently unable to assess the probability of loss or estimate a range of potential loss, if any, associated with this lawsuit because it is at an early stage. On Jan. 7, 2016, the Honorable F. Dennis Saylor IV entered an Order appointing Terry M. Brennan, Ron Kenner, Kevin Koziatek, Vincent Rampe, and Dragon Gate Management Ltd. as co-lead plaintiffs and approving their selection of: Jeffrey C. Block, Esq. Joel Anderson Fleming, Esq. BLOCK & LEVITON LLP 155 Federal Street, Suite 1303 Boston, MA 02110 Telephone: 617-398-5600 E-mail: jeff@blockesq.com joel@blockesq.com and The Rosen Law Firm, P.A. as Co-Lead Counsel. Zafgen is represented by: Adam Slutsky, Esq. Deborah S. Birnbach, Esq. Kate Elizabeth MacLeman, Esq. GOODWIN PROCTER LLP Exchange Place 53 State Street Boston, MA 02109 Telephone: 617-570-1000 E-mail: aslutsky@goodwinprocter.com DBirnbach@goodwinprocter.com kmacleman@goodwinprocter.com * CFIA Recalls Almond Spread Products Due to Salmonella ------------------------------------------------------- Starting date: December 3, 2015 Type of communication: Recall Alert sub-type: Food Recall Warning Subcategory: Microbiological - Salmonella Hazard classification: Class 1 Source of recall: Canadian Food Inspection Agency Recalling firm: Antony and Sons, Raw Elements Inc. Distribution: National Extent of the product distribution: Retail and Hotel/Restaurant/Institutional CFIA reference number: 10228 The Canadian Food Inspection Agency (CFIA) is warning the public not to consume and retailers, restaurants and institutions not to sell or use the products described below due to possible Salmonella contamination. The following products may have been sold nationally as well as through internet sales. Check to see if you have recalled products in your home or in your establishment. Recalled products should be thrown out or returned to the location where they were purchased. Food contaminated with Salmonella may not look or smell spoiled but can still make you sick. Young children, pregnant women, the elderly and people with weakened immune systems may contract serious and sometimes deadly infections. Healthy people may experience short-term symptoms such as fever, headache, vomiting, nausea, abdominal cramps and diarrhea. Long-term complications may include severe arthritis. There have been no reported illnesses associated with the consumption of these products in Canada. This recall was triggered by a recall in the United States. The CFIA is conducting a food safety investigation, which may lead to the recall of other products. If other high-risk products are recalled, the CFIA will notify the public through updated Food Recall Warnings. The CFIA is verifying that industry is removing recalled product from the marketplace. Brand Common name Size Code(s) on UPC name ----------- ----- product --- ---- ---------- Jem Raw Cashew Cardamom 28.4 g All codes 6 09728 97861 7 Organic - Sprouted sold from Cashew Almond June 2015 Spread up to and including December 3, 2015 Jem Raw Cinnamon Red 28.4 g All codes 6 09728 97862 4 Organic Maca - sold from Sprouted Almond June 2015 Spread up to and including December 3, 2015 Jem Raw Hazelnut Raw 28.4 g All codes 6 09728 97865 5 Organic Cacao - sold from Sprouted Hazelnut June 2015 Spread up to and including December 3, 2015 Jem Raw Superberry Maqui 28.4 g All codes 6 09728 97864 8 Organic Camu - Sprouted sold from Almond Spread June 2015 up to and including December 3, 2015 Jem Raw Cashew Cardamom 170 g All codes 6 09728 97860 0 Organic - Sprouted old from Cashew Almond June 2015 Spread up to and including December 3, 2015 Jem Raw Cinnamon Red 170 g All codes 6 09728 97848 8 Organic Maca - Sprouted sold from Almond Spread June 2015 up to and including December 3, 2015 Jem Raw Hazelnut Raw 170 g All codes 6 09728 97857 0 Organic Cacao - Sprouted sold from Hazelnut Spread June 2015 up to and including December 3, 2015 Jem Raw Superberry Maqui 170 g All codes 6 09728 97858 7 Organic Camu - Sprouted sold from Almond Spread June 2015 up to and including December 3, 2015 Jem Raw Cashew Cardamom 455 g All codes 6 09728 97854 9 Organic - Sprouted Cashew sold from Almond Spread June 2015 up to and including December 3, 2015 Jem Raw Cinnamon Red 455 g All codes 6 09728 97850 1 Organic Maca - Sprouted sold from Almond Spread June 2015 up to and including December 3, 2015 Jem Raw Hazelnut Raw 455 g All codes 6 09728 97851 8 Organic Cacao - Sprouted sold from Hazelnut Spread June 2015 up to and including December 3, 2015 Jem Raw Superberry Maqui 455 g All codes 6 09728 97852 5 Organic Camu - Sprouted sold from Almond Spread June 2015 up to and including December 3, 2015 Pictures of the Recalled Products available at: http://is.gd/OukF9A ********* 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 * * *