/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/160229.mbx C L A S S A C T I O N R E P O R T E R Monday, February 29, 2016, Vol. 18, No. 42 Headlines ADT CORP: Judge Narrows Claims in "Cheatham" Consumer Fraud Suit ADVOCATE HEALTH: "Magpayo" Suit Alleges FLSA and IMWL Violations AEROJET ROCKETDYNE: "Travis" Class Action Filed in Calif. ALEXANDER DEMOLITION: Suit Alleges Labor Code Violations AMERICAN AIRLINES: "Siadek" Suit Seeks to Recover Unpaid Wages AMGEN INC: Trial Date in Onyx Litigation Set for April 28 AMGEN INC: Trial Date in Securities Litigation Set for July 12 AMGEN INC: Supreme Court Reversed Judgment in ERISA Litigation ARTURO'S PIZZERIA: "Then" Suit Seeks to Recover OT Pay ASSURANT INC: Defending Class Suits Over Lender-Placed Insurance AT&T DIGITAL: Amended Scheduling Order in "Spencer" Approved BAJA MINING: Ontario Court Approves Class Action Settlement BASIC RESEARCH: Court Nixes Attempt to Moot Plaintiff's Claims BECK ENERGY: Ruling in Oil & Gas Lease Dispute Upheld BHP BILLITON: Faces Securities Class Action by Retirement Fund BLACKBERRY LTD: Dismissal Bids in "Semeran" Case Granted BLUE BUFFALO: Settles False Advertising Class Action for $32MM BLOOMIN' BRANDS: Court Tosses "Lang" Race Bias Suit BOEING COMPANY: Faces Securities Class Action in Illinois BRITISH PETROLEUM: "Townsend" Case Transferred to N.D. Alabama CALIFORNIA: Inmate's Suit Over Prison Riot Dismissed CALIFORNIA CULINARY: Order Striking Class Allegations Affirmed CANADA: Koskie Minsky Commences CPRI Class Action v. Ontario CENTERPLATE: Super Bowl 50 Worker Files Class Action CHARTER COMMUNICATIONS: Faces "Jones" TCPA Class Suit in Conn. CHESAPEAKE ENERGY: Oil & Gas Leases Suit Stays in Federal Court CHICAGO: "Bell" Suit Seeks Damages Over Impoundment Code CHURCH & DWIGHT: Faces "Wambach" Suit Over Deceptive Labels COMMAND SECURITY: Expects Court Approval of "Leal" Settlement COMPANIONS OF ASHLAND: "George" Suit Seeks Wages & Overtime Pay CONAGRA FOODS: Faces "Backus" Suit Over Unhealthy Food Additive CONAGRA FOODS: Seeks Dismissal of ERISA Class Action COVENANT CARE: Class Certification Bid in "Tinsley" Case Granted CREDIT MANAGEMENT SERVICES: 2nd Class Certification Bid Granted CSRA INC: Parties in "Strauch" Case Exploring Settlement CVS PHARMACY: Attempts to Stop Disbarred Lawyer to File Suits DA DI CHINESE: "Liu" Suite Seeks Unpaid Wages and Overtime Pay DAIICHI SANKYO: Gender Bias Case Settlement Gets Final Approval DELTA FUNDING: "Smith" Foreclosure Suit Dismissed DIRECTV: Outlines Details of MLB "Extra Innings" Settlement EMC CORP: "Booth Family" Suit Challenges Sale Agreement with Dell ETHICON: Jury Hears Closing Arguments in Pelvic Mesh Suit EXPRESS SCRIPTS: Class Cert. Bid in "Beeman" Case Not Yet Briefed EXPRESS SCRIPTS: Motion for Decertify Class in "Brady" Pending FACEBOOK INC: Judge Dismisses Biometrics Class Action FEDCHOICE FEDERAL: "Horton" Suit Alleges Breach of Contract FLINT, MI: Water Crisis Lawsuits to Cost Taxpayers Millions FLOYD COUNTY, IN: Inmates' Abuse Suit Gets Class Action Status FOX SEARCHLIGHT: 2nd Cir. Enters Revised Opinion in "Glatt" FREEPORT-MCMORAN INC: "Magro" Sues over Share Price Drop FREEPORT-MCMORAN INC: March 28 Lead Plaintiff Deadline Set GENERAL CHEMICAL: Mattoon Sues over Alum Price-Fixing GENERAL CHEMICAL: Grand Marais Suit Alleges Alum Price Fixing HAIN CELESTIAL: 9th Cir. Reinstates "Balser" Mislabeling Suit HOBOKEN, NJ: Residents Lose Appeal in Rent Ordinance Case HSBC BANK USA: Court Trims Claims in "Schwartz" Credit Card Suit HUNTSMAN CORP: Bid to Dismiss Indirect Plaintiffs' Suit Pending INDIANA: Judge Tosses Child Services Case Manager's Class Action JOURNAL MEDIA: MOU Reached in Merger Class Actions KATINA POWELL: Hearing Set in UofL Student's Class Action KEURIG GREEN: 3 Additional Class Suits Filed Over Merger KINDER MORGAN: Supreme Court to Hear Oral Argument on March 9 KINDER MORGAN: Court Approved Settlement in Capex Litigation KINDER MORGAN: "Walker" Class Action Dismissed LIBERTY GLOBAL: Indemnity Does Not Cover Losses from Class Action LIBERTY MUTUAL: Dismissal Bids in "Brewton" Case Granted LIFE TIME FITNESS: Conditional Class Certification Bid Denied LTD FINANCIAL: "Vandemark" Suit Seeks Damages under TCPA LYFT INC: Balks at Uber Technologies' Data Breach "Witch Hunt" M-I L.L.C.: Judge Won't Push Back Briefing Schedule in "Syed" M&G POLYMERS: 6th Cir. Remands "Tackett" Suit MARATHON: Faces Class Action Over Refinery Pollution Impacts MDL 1917: Court Approves Thomson Displays Settlement MDL 2580: Court Rules on Bid to Dismiss Payors' Amended Suits MDL 2672: 48 Class Suits v. Volkswagen et al. Transferred MERCEDES-BENZ: Faces Class Action Over BlueTEC Diesel Engines MYLAN N.V.: Trial in Modafinil Class Action Stayed MYLAN N.V.: Indirect Purchasers File Opening Brief in Appeal MYLAN N.V.: Briefing in Shareholders Class Action Completed NORTHLAND GROUP: Dismissal of Debt Collection Class Action Upheld NOVATION COMPANIES: Still Defends Carpenters' Health Fund Suit NYMOX PHARMACEUTICAL: "Sapir" Case Dismissed with Leave to Amend OOMA INC: "Barnett" Sues over Share Price Drop PETROBAS: Securities Case Wins Class Certification PHILIP MORRIS: Smokers to Get $4.9MM in Marlboro Lights Suit RADIANT LOGISTICS: Status Conference in "Barahona" Continued RBC CAPITAL: "Luis" Suit Alleges Common Law Fraud SQUAD SECURITY: "Tapper" Suit Alleges Labor Code Violations ST. LOUIS, MO: "Furlow" Sues Cops Over Warrantless Arrests STONEMAN FABRICATORS: "Marroquin" Suit Seeks to Recover Unpaid OT TRS RECOVERY: Settlement in Debt Collection Suit Approved UBER: Lyft Settlement Won't Impact Drivers' Class Action UBER: Received Complaints of Kalamazoo Shooter's Erratic Driving UNION HOSPITAL: Court Narrows Claims in "Schneider" Labor Case UNITED STATES: 9th Cir. Issues Revised Opinion in Veterans' Suit USS-POSCO INDUSTRIES: Attorney Fee Award in "Case" Suit Reversed VERTEX PHARMACEUTICALS: Plaintiff Appeals Case Dismissal VICTORIA'S SECRET: Faces "Hannegan" Suit Over TCPA Violation VISHAY INTERTECHNOLOGY: VPC Defending Class Suit over Capacitors VISHAY INTERTECHNOLOGY: Defending Class Action over Resistors VIZIO INC: "Eddy" Sues over Illegal Data Gathering WATTS WATER: Announced Settlement-in-Principle WEATHERFORD INTERNATIONAL: Court Approves $120-Mil. Settlement WESTERN CULINARY: Order Denying Arbitration Bid Reversed WHIRLPOOL CORP: Settlement Pending in Defective Washers Suit WHITEWAVE FOODS: Lawyers Allocate Funds for Omega-3 Research WILLIAMS COMPANIES: Shareholders Challenge Merger WORLDWIDE TRANSPORTATION: "Esquenazi" Seeks to Recover OT Pay WYOMING, WI: Court Strikes Class Allegations in "Daniels" Suit YUM! BRANDS: Trial in Taco Bell Wage & Hour Actions Began Feb. 22 YUM! BRANDS: Expects "Rodriguez" Suit to Be Dismissed * Aerospace, Automotive Worst For Gender Equality, Report Shows * CFPB Director Attacks Consumer Agreement Arbitration Provisions * No End in Sight to NLRB Standoff Over Arbitration Agreements * Private Class-Action Plaintiffs' Law Firms Eye Equal Pay Issues * Scalia's Death May Impact Future of Class Action Litigation ********* ADT CORP: Judge Narrows Claims in "Cheatham" Consumer Fraud Suit ---------------------------------------------------------------- District Judge David G. Campbell granted the Defendant's motion to dismiss in the case, Janet Cheatham, Plaintiff, v. ADT Corporation, et al., Defendants, No. CV-15-02137-PHX-DGC, (D. Ariz.) Plaintiff Janet Cheatham initiated this action by filing a class action complaint against Defendants ADT Corporation and ADT LLC in the Maricopa County Superior Court. The complaint asserts claims against ADT LLC for consumer fraud and unjust enrichment, and claims against ADT Corp. for consumer fraud, unjust enrichment, and strict products liability. Plaintiff says ADT LLC violated Arizona Consumer Fraud Act ("ACFA") by misrepresenting the reliability and technical sophistication of its wireless security system and by failing to disclose that this system was "unencrypted and unauthenticated, and otherwise insecure." Defendants removed the action to the Court pursuant to 28 U.S.C. Section 1441(a), asserting federal jurisdiction under the Class Action Fairness Act of 2005, 28 U.S.C. Section 1332(d)(2). Each Defendant has filed its own motion to dismiss. ADT Corp. asks the Court to dismiss it from this case for lack of personal jurisdiction or, in the alternative, to dismiss the case for failure to state a claim. ADT LLC asks the Court to dismiss the case for failure to state a claim or, in the event any of Plaintiff's claims survive, to strike Plaintiff's class allegations. In his Order dated February 11, 2016 available at http://is.gd/IoGanQfrom Leagle.com, Judge Campbell granted ADT Corp.'s motion to dismiss for lack of personal jurisdiction. It also granted ADT LLC's motion to dismiss for failure to state a claim with respect to any ACFA claims based on statements set forth in the Complaint. It denied ADT LLC's motions to dismiss and to strike. The Court held that Plaintiff fails to state a claim under the ACFA based on ADT LLC's statements about its technological sophistication, its promise to provide "worry-free" living or its claim that "you owe it to yourself and your family to talk to (ADT). The Court granted ADT LLC's motion to dismiss as to these statements. Plaintiff has stated a claim, however, based on ADT LLC's statements about the reliability and efficacy of its alarm system and its representation that its customer support centers are connected by "secure communication links." Plaintiff has also stated a claim based on ADT LLC's failure to disclose that its wireless security systems use unencrypted and unauthenticated signals. The Court will not dismiss Plaintiff's claims based on these statements and omissions. The Court cannot conclude that Plaintiff's monitoring contract with ADT LLC specifically governs the rights and obligations at issue here. Therefore, the Court will not dismiss Plaintiff's unjust enrichment claim. Francis Joseph Balint, Jr., Esq. -- fbalint@bffb.com -- and William Fleming King, Esq. -- bking@bffb.com -- of Bonnett Fairbourn Friedman & Balint PC serve as counsel for Plaintiff Janet Cheatham, individually, and on behalf of all others similarly situated J Steven Sparks, Esq. -- steve.sparks@sandersparks.com -- of Sanders & Parks PC and C Sanders McNew, Esq. -- mcnew@mcnew.net of McNew PA serve as counsel for Defendant ADT Corporation ADVOCATE HEALTH: "Magpayo" Suit Alleges FLSA and IMWL Violations ---------------------------------------------------------------- Crixenia Magpayo, and all others similarly-situated v. Advocate Health Care Network, Case No. 1:16-cv-01176 (N.D. Ill., January 26, 2016), is brought against the Defendant for failure to pay earned overtime wages in violation of the Fair Labor Standards Act, Illinois Minimum Wage Law and the Illinois Wage Payment and Collection Act. Defendant Advocate Health Care Network is an Illinois not-for- profit corporation. It owns and operates Trinity Hospital, located at 2320 East 93rd Street, Chicago, IL. The Plaintiff is represented by: Douglas M. Werman, Esq. Maureen A. Salas, Esq. Sarah J. Arendt, Esq. Zachary C. Flowerree, Esq. WERMAN SALAS P.C. 77 W. Washington, Suite 1402 Chicago, IL 60602 Tel: (312) 419-1008 E-mail: dwerman@flsalaw.com msalas@flsalaw.com sarendt@flsalaw.com zflowerree@flsalaw.com AEROJET ROCKETDYNE: "Travis" Class Action Filed in Calif. --------------------------------------------------------- Aerojet Rocketdyne Holdings, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 16, 2016, for the fiscal year ended November 30, 2015, that on February 11, 2016, a complaint was filed in the United States District Court, Central District of California, by Juliann Travis, purporting to represent a class of purchasers of the Company's securities during the period from October 15, 2013 through February 1, 2016, against the Company, Eileen Drake, Kathleen Redd and Scott Seymour, Juliann Travis, Individually and on Behalf of All Others Similarly Situated, v. Aerojet Rocketdyne Holdings, Inc., Eileen P. Drake, Kathleen E. Redd, and Scott J. Seymour, Case No. 2:16-cv-00961. The complaint arises out of the announcement of the Restatement by the Company on February 1, 2016. The complaint asserts that the Company's securities traded at artificially inflated prices as a result of such misstatements and alleges a violation of Section 10(b) of the Exchange Act and Rule 10b-5 promulgated thereunder by all defendants, and a violation of Section 20(a) of the Exchange Act by the individual defendants, Drake, Redd and Seymour. The complaint seeks a determination that this matter is a proper class action and designating the plaintiff as the lead plaintiff and class representative, an award of compensatory damages in an amount to be determined at trial, an award of reasonable costs and expenses of trial, including counsel and expert fees, an award of rescission or a rescissory measure of damages and an award of such equitable/injunctive or other relief as deemed appropriate by the Court. The Company believes this action is without merit and intends to contest it vigorously. Aerojet Rocketdyne is a manufacturer of aerospace and defense products and systems which develops and manufactures propulsion systems for defense and space applications, and armaments for precision tactical and long-range weapon systems applications. It also has a real estate segment that includes activities related to the re-zoning, entitlement, sale, and leasing of its excess real estate assets. ALEXANDER DEMOLITION: Suit Alleges Labor Code Violations -------------------------------------------------------- Francisco Escobar, and all others similarly-situated v. Alexander Demolition and Hauling Inc. and Does 1 through 50, Case No. BC607174 (Ca. Super., January 14, 2016), seeks relief against the Defendant for failure to pay all wages due, including both regular and overtime wages, and minimum wages; failure to provide meal and rest periods or compensation in lieu thereof; failure to pay wages due during employment; failure to pay wages due at separation of employment; and failure to provide accurate itemized wage statements upon payment of wages in violation of the California Labor Code. Alexander Demolition & Hauling Inc specializes in all phases of demolition, recycling and debris removal. The Plaintiff is represented by: Kevin Mahoney, Esq. MAHONEY LAW GROUP, APC 249 E. Ocean Blvd., Ste. 814 Long Beach, CA 90802 Tel: (562) 590-5550 Fax: (562) 590-8400 E-mail: kmahoney@mahoney-law.net AMERICAN AIRLINES: "Siadek" Suit Seeks to Recover Unpaid Wages -------------------------------------------------------------- Monica Siadek, Maria Jodar, and all others similarly-situated v. American Airlines, Inc. and Does 1 through 100, Case No. BC607127 (Ca. Super., January 14, 2016), seeks to recover wages and penalties from unpaid wages earned and due, including but not limited to unpaid minimum wages and unpaid wages, unpaid and illegally calculated, overtime compensation, illegal meal and rest period policies, failure to timely pay wages, failure to pay all wages due to discharged or quitting employees, failure to maintain required records, failure to provide accurate itemized wage statements, failure to indemnify employees for necessary expenditures and/or losses incurred in discharging their duties, and interest, attorneys' fees, costs, and expenses under the California Labor Code. American Airlines, Inc. provides scheduled airline services. It offers scheduled jet services primarily to Chicago, Dallas/Fort Worth, Los Angeles, Miami, and New York City. The company also operates as a scheduled air freight carrier providing a range of freight and mail services to shippers. The Plaintiff is represented by: Shoham J. Solouki, Esq. SOLOUKI & SAVOY, LLP 316 Wr 2nd Street, Suite 1200 Los Angeles, CA 90012 Tel: (213) 814-4940 Fax: (213) 814-2550 - and - Dan B. Yakobian, Esq. DBY LAW 3250 Wilshire Blvd, Floor 13 Los Angeles, CA 90010 Tel: (213) 316-8844 Fax: (213) 618-4466 AMGEN INC: Trial Date in Onyx Litigation Set for April 28 --------------------------------------------------------- Amgen Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 16, 2016, for the fiscal year ended December 31, 2015, that trial date in the Onyx Litigation as been set for April 28, 2016. Between August 28, 2013 and September 16, 2013, nine plaintiffs filed purported class action lawsuits against Onyx, its directors, Amgen and Arena Acquisition Company (Arena), and unnamed "John Doe" defendants in connection with Amgen's acquisition of Onyx. Seven of those purported class actions were brought in the Superior Court of the State of California for the County of San Mateo (the San Mateo County Superior Court), captioned Lawrence I. Silverstein and Phil Rosen v. Onyx Pharmaceuticals, Inc., et al. (August 28, 2013) ("Silverstein"), Laura Robinson v. Onyx Pharmaceuticals, Inc., et al. (originally filed in the Superior Court for the County of San Francisco on August 28, 2013, and re- filed in the San Mateo County Superior Court on August 29, 2013) ("Robinson"), John Solak v. Onyx Pharmaceuticals, Inc., et al. (August 30, 2013) ("John Solak"), Louisiana Municipal Police Employees' Retirement System and Hubert Chow v. Onyx Pharmaceuticals, Inc., et al. (September 3, 2013) ("Louisiana Municipal"), Laurine Jonopulos v. Onyx Pharmaceuticals, Inc., et al. (September 4, 2013) ("Jonopulos"), Clifford G. Martin v. Onyx Pharmaceuticals, Inc., et al. (September 9, 2013) ("Martin") and Merrill L. Magowan v. Onyx Pharmaceuticals, Inc. et al. (September 9, 2013) ("Magowan"). The eighth and ninth purported class actions were brought in the Court of Chancery of the State of Delaware, captioned Mark D. Smilow, IRA v. Onyx Pharmaceuticals Inc., et al. (August 29, 2013) ("Smilow") and William L. Fitzpatric v. Onyx Pharmaceuticals, Inc., et al. (September 16, 2013) ("Fitzpatric"). On September 5, 2013, the plaintiff in the John Solak case dismissed his case. On September 10, 2013, the plaintiff in the Smilow case dismissed his case. On September 10, 2013, plaintiffs in the Silverstein and Louisiana Municipal cases filed an amended complaint alleging substantially the same claims and seeking substantially the same relief as in their individual purported class action lawsuits. Each of the lawsuits alleges that the Onyx director defendants breached their fiduciary duties to Onyx shareholders, and that the other defendants aided and abetted such breaches, by seeking to sell Onyx through an allegedly unfair process and for an unfair price and on unfair terms. The Magowan and Fitzpatric complaints and the amended complaint filed in the Silverstein and Louisiana Municipal cases also alleged that the individual defendants breached their fiduciary duties with respect to the contents of the tender offer solicitation material. Each of the lawsuits sought, among other things, rescission of the merger agreement and attorneys' fees and costs, and certain of the lawsuits sought other relief. The Silverstein, Robinson, Louisiana Municipal and Jonopulos cases were designated as "complex" and assigned to the Honorable Marie S. Weiner of the San Mateo County Superior Court, who subsequently entered an order consolidating the Silverstein, Robinson, Louisiana Municipal, Jonopulos, Martin and Magowan cases (the Consolidated Cases). On October 31, 2013, the plaintiffs in the Consolidated Cases filed a consolidated class action complaint seeking certification of a class and alleging breach of fiduciary duties of loyalty and good faith against the Onyx directors and aiding and abetting breach of fiduciary duties against Onyx. The complaint sought certification of a class of all Onyx shareholders, damages (including pre- and post-judgment interest), attorneys' fees and expenses plus other relief. The plaintiffs in the Consolidated Cases simultaneously filed a notice of dismissal without prejudice of Amgen and Arena. On January 9, 2014, the court sustained a demurrer without leave to amend as to Onyx. The plaintiff in the Fitzpatric case dismissed his case on August 22, 2014. On January 30, 2015, the court granted class certification and appointed Mr. Rosen as class representative in the Consolidated Cases. A hearing on defendants' summary judgment motion has been set for February 24, 2016, and the trial date has been set for April 28, 2016. AMGEN INC: Trial Date in Securities Litigation Set for July 12 -------------------------------------------------------------- Amgen Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 16, 2016, for the fiscal year ended December 31, 2015, that trial date has been set for July 12, 2016, in the case, Amgen Inc. Securities Litigation. The six federal class action stockholder complaints filed against Amgen, Kevin W. Sharer, Richard D. Nanula, Dennis M. Fenton, Roger M. Perlmutter, Brian M. McNamee, George J. Morrow, Edward V. Fritzky, Gilbert S. Omenn and Franklin P. Johnson, Jr., (the Federal Defendants) in the U.S. District Court for the Central District of California (the California Central District Court) on April 17, 2007 (Kairalla v. Amgen Inc., et al.), May 1, 2007 (Mendall v. Amgen Inc., et al., & Jaffe v. Amgen Inc., et al.), May 11, 2007 (Eldon v. Amgen Inc., et al.), May 21, 2007 (Rosenfield v. Amgen Inc., et al.) and June 18, 2007 (Public Employees' Retirement Association of Colorado v. Amgen Inc., et al.) were consolidated by the California Central District Court into one action captioned In re Amgen Inc. Securities Litigation. The consolidated complaint was filed with the California Central District Court on October 2, 2007. The consolidated complaint alleges that Amgen and these officers and directors made false statements that resulted in: (i) deceiving the investing public regarding Amgen's prospects and business; (ii) artificially inflating the prices of Amgen's publicly traded securities and (iii) causing plaintiff and other members of the class to purchase Amgen publicly traded securities at inflated prices. The complaint also makes off-label marketing allegations that, throughout the class period, the Federal Defendants improperly marketed Aranesp(R) and EPOGEN(R) for off-label uses while aware that there were alleged safety signals with these products. The plaintiffs seek class certification, compensatory damages, legal fees and other relief deemed proper. On February 4, 2008, the California Central District Court granted in part, and denied in part, the Federal Defendants' motion to dismiss the consolidated amended complaint. Specifically, the California Central District Court granted the Federal Defendants' motion to dismiss as to individual defendants Fritzky, Omenn, Johnson, Fenton and McNamee, but denied the Federal Defendants' motion to dismiss as to individual defendants Sharer, Nanula, Perlmutter and Morrow. On August 12, 2009, the California Central District Court granted plaintiffs' motion for class certification. On April 14, 2014, the California Central District Court entered an order allowing plaintiffs leave to file a second consolidated amended class action complaint. While the new complaint was filed under seal, like the first consolidated class action complaint the new complaint continues to assert that the Federal Defendants made false statements and engaged in off-label marketing causing the same results as alleged in the first consolidated class action complaint. The complaint continues to name the same Federal Defendants and the alleged class period remains the same. Plaintiffs continue to seek compensatory damages, legal fees and other relief deemed proper. On May 5, 2014, plaintiffs filed an unsealed, redacted version of their second consolidated amended complaint. On August 4, 2014, the court issued an order granting the Federal Defendants' motion to dismiss with respect to certain of the misrepresentations alleged in the complaint and otherwise denying the motion to dismiss. Following the court's order, the complaint continues to assert that the Federal Defendants made false statements and engaged in off-label marketing causing the same results as alleged in the first consolidated class action complaint. The complaint continues to name the same Federal Defendants and the alleged class period remains the same. The trial date has been set for July 12, 2016. AMGEN INC: Supreme Court Reversed Judgment in ERISA Litigation -------------------------------------------------------------- Amgen Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 16, 2016, for the fiscal year ended December 31, 2015, that the U.S. Supreme Court has reversed the judgment of the Ninth Circuit Court and remanded back to the California Central District Court for further proceedings, the ERISA Litigation. On August 20, 2007, the Employee Retirement Income Security Act (ERISA) class action lawsuit of Harris v. Amgen Inc., et al., was filed in the California Central District Court and named Amgen, Kevin W. Sharer, Frank J. Biondi, Jr., Jerry Choate, Frank C. Herringer, Gilbert S. Omenn, David Baltimore, Judith C. Pelham, Frederick W. Gluck, Leonard D. Schaeffer, Jacqueline Allred, Raul Cermeno, Jackie Crouse, Lori Johnston, Michael Kelly and Charles Bell as defendants. Plaintiffs claim that Amgen and the individual defendants breached their fiduciary duties and their duty of loyalty by continuing to offer the Amgen stock fund as an investment option in the Amgen Retirement and Savings Plan and the Retirement and Savings Plan for Amgen Manufacturing Limited (the Plans) despite the alleged off-label promotion of both Aranesp(R) and EPOGEN(R) and despite a number of allegedly undisclosed study results that allegedly demonstrated safety concerns in patients using ESAs. Plaintiffs also allege that defendants breached their obligations under ERISA by not disclosing to plan participants the alleged off-label marketing and study results. On February 4, 2008, the California Central District Court dismissed the complaint with prejudice as to plaintiff Harris, who had filed claims against Amgen. The claims alleged by the second plaintiff, Ramos, were also dismissed but the court granted the plaintiff leave to amend his complaint. On February 1, 2008, the plaintiffs appealed the decision by the California Central District Court to dismiss the claims of both plaintiffs Harris and Ramos to the U.S. Court of Appeals for the Ninth Circuit (the Ninth Circuit Court). On May 19, 2008, plaintiff Ramos in the Harris v. Amgen Inc., et al., action filed another lawsuit captioned Ramos v. Amgen Inc., et al., in the California Central District Court. The lawsuit is another ERISA class action. The Ramos v. Amgen Inc., et al., matter names the same defendants in the Harris v. Amgen Inc., et al., matter plus four new defendants: Amgen Manufacturing Limited, Richard Nanula, Dennis Fenton and the Fiduciary Committee of the Plans. On July 14, 2009, the Ninth Circuit Court reversed the California Central District Court's decision in the Harris matter and remanded the case back to the California Central District Court. In the meantime, a third ERISA class action was filed by Don Hanks on June 2, 2009 in the California Central District Court alleging the same ERISA violations as in the Harris and Ramos lawsuits. On August 10, 2009, the Harris, Ramos and Hanks matters were consolidated by the California Central District Court into one action captioned Harris, et. al. v. Amgen Inc. Plaintiffs filed an amended complaint on November 11, 2009 and added two additional plaintiffs, Jorge Torres and Albert Cappa. Amgen filed a motion to dismiss the amended/consolidated complaint, and on March 2, 2010, the California Central District Court dismissed the entire lawsuit without prejudice. Plaintiffs filed an amended complaint on March 23, 2010. Amgen then filed another motion to dismiss on April 20, 2010. On June 16, 2010, the California Central District Court entered an order dismissing the entire lawsuit with prejudice. On June 24, 2010, the plaintiffs filed a notice of appeal with the Ninth Circuit Court. On June 4, 2013, the Ninth Circuit Court reversed the decision of the California Central District Court and remanded the case back to the California Central District Court for further proceedings. On June 18, 2013, Amgen petitioned the Ninth Circuit Court for rehearing and/or rehearing en banc. The Ninth Circuit Court issued an amended opinion and denied Amgen's petition for rehearing and rehearing en banc on October 23, 2013. On June 30, 2014, the U.S. Supreme Court granted a petition for certiorari filed by Amgen and the other named defendants, vacated the judgment of the Ninth Circuit Court and remanded this case to the Ninth Circuit Court for reconsideration in light of the U.S. Supreme Court's decision in Fifth Third Bancorp v. Dudenhoeffer, decided June 25, 2014. On October 23, 2014, the Ninth Circuit Court reaffirmed its earlier decision of June 4, 2013. On November 13, 2014, Amgen filed a petition for rehearing en banc with the Ninth Circuit Court. On May 26, 2015, the Ninth Circuit Court denied Amgen's petition for rehearing en banc. On January 25, 2016, the U.S. Supreme Court granted Amgen's petition for certiorari, reversed the judgment of the Ninth Circuit Court and remanded the case back to the California Central District Court for further proceedings. ARTURO'S PIZZERIA: "Then" Suit Seeks to Recover OT Pay ------------------------------------------------------ MARTIN THEN, on behalf of himself, individually, and on behalf of all others similarly-situated, Plaintiff, v. Elvir Vusanjin, Defendant, Case 1:16-cv-00572 (S.D.N.Y., January 26, 2016), seeks preliminary and permanent injunctions, damages, recovery of unpaid overtime wages, liquidated damages and any other statutory penalties, reasonable attorneys' fees, pre-judgment and post- judgment interest and other and further relief for violation of the Fair Labor Standards Act and New York Labor Laws. Elvir Vusanjin operates Arturo's Pizzeria located at 5189 Broadway, Bronx, New York 10463 where Plaintiff works as a general restaurant worker. Defendant required Plaintiff to regularly work 78-88 hours per week without overtime compensation. Defendant also failed to provide Plaintiff with proper wage statements. The Plaintiff is represented by: Louis M. Leon, Esq. Alexander T. Coleman, Esq. Michael J. Borrelli, Esq. BORRELLI & ASSOCIATES, P.L.L.C. 1010 Northern Boulevard, Suite 328 Great Neck, NY 11021 Tel. (516) 248-5550 Fax. (516) 248-6027 ASSURANT INC: Defending Class Suits Over Lender-Placed Insurance ---------------------------------------------------------------- Assurant, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 16, 2016, for the fiscal year ended December 31, 2015, that the Company is a defendant in class actions in a number of jurisdictions regarding its lender-placed insurance programs. These cases assert a variety of claims under a number of legal theories. The plaintiffs seek premium refunds and other relief. The Company continues to defend itself vigorously in these class actions. "We have participated and may participate in settlements on terms that we consider reasonable given the strength of our defenses and other factors," the Company said. Assurant is a global provider of specialty protection products and related services. Assurant operates in North America, Latin America, Europe and other select worldwide markets through four operating segments. Assurant Solutions, Assurant Specialty Property, Assurant Health and Assurant Employee Benefits partner with clients who are leaders in their industries to provide consumers peace of mind and financial security. Its diverse range of products and services include mobile device protection products and services; extended service products and related services for consumer electronics, appliances and vehicles; pre-funded funeral insurance; lender-placed homeowners insurance; property preservation and valuation services; flood insurance; renters insurance and related products; debt protection administration; credit insurance; manufactured housing homeowners insurance; group dental insurance; group disability insurance; and group life insurance. AT&T DIGITAL: Amended Scheduling Order in "Spencer" Approved ------------------------------------------------------------ Magistrate Judge Peggy A. Leen granted Plaintiff's motion for entry of an amended scheduling order in the case, KIRBY SPENCER, Plaintiff, v. AT&T DIGITAL LIFE, INC, Defendant, Case No. 2:14-cv- 01136-APG-PAL, (D. Nev.) This putative class action asserts claims for alleged violations of the Telephone Consumer Protection Act (TCPA). The court entered a Discovery Plan and Scheduling Order November 14, 2014, establishing an April 22, 2015 discovery cutoff, with dispositive motions due May 22, 2015. Plaintiff timely filed a motion to amend the complaint to add class allegations on January 22, 2015. The district judge granted the motion for leave to amend the on September 1, 2015. The amended complaint was filed September 1, 2015, and on September 29, 2015, Defendant filed its Answer to Plaintiff's first amended class action complaint. In a minute order entered September 3, 2015, the district judge denied Defendant's motion for summary judgment without prejudice in light of the amended complaint to be filed, and denied Plaintiff's motion to stay and motion to file surreply as moot. Months after the district judge granted Plaintiff's motion for leave to assert a first amended class action complaint, Plaintiff filed this motion seeking "an amended scheduling order" to allow Plaintiff to conduct discovery on the newly added class claims, reset a date for dispositive motions, and deadline for filing a motion to certify a class. The motion also requests an "extension" of the deadlines to designate experts and rebuttal disclosures, a May 20, 2016 discovery cutoff, and June 14, 2016 deadline to file a motion for class certification. Plaintiff proposes that a dispositive motion deadline be set 60 days after the court rules on a motion for class certification. Alternatively, if Plaintiff decides not to designate an expert, Plaintiff requests that an April 1, 2016 discovery cutoff be set with an April 29, 2016 deadline for a class certification motion. Plaintiff moves for entry of an amended scheduling order and incorporated memorandum of points and authorities. In his Order dated February 9, 2016 available at http://is.gd/7uArVJfrom Leagle.com, Judge Leen granted Plaintiff's motion for entry of an amended scheduling order and incorporated memorandum of points and authorities to the limited extent he will be permitted to obtain the limited discovery described in the body of this order, if the motion for summary judgment is denied. Plaintiff will have 14 days from an order denying summary judgment to serve Defendant with the 4 requests for production described in the present order. Defendant will have 30 days from service of the 4 requests for production to serve responses. Plaintiff will have 90 days from entry of an order denying summary judgment to file a motion for class certification. No additional depositions or expert designations will be allowed. The deadline for filing dispositive motions has expired and will not be extended. Any request for relief not specifically addressed in this order is denied. Spencer did not file a timely motion to extend the discovery cutoff 21 days before the expiration of the deadline. Rather, this motion was filed more than 8 months after the April 22, 2015 discovery cutoff expired. It is therefore a motion to reopen discovery, not a motion to amend an existing plan, the judge said. Evan Meyers, Esq. of McGuire Law, P.C. and Craig K Perry, Esq. of Craig K. Perry & Associates serve as counsel for Plaintiff Kirby Spencer Douglas W. Sullivan, Esq. -- dsullivan@crowell.com -- and Joel D Smith, Esq. -- jsmith@crowell.com -- of Crowell & Moring -- Ryan M. Lower, Esq. -- rml@morrislawgroup.com -- and Raleigh C. Thompson, Esq. -- rct@morrislawgroup.com -- of Morris Law Group serve as counsel for Defendant AT&T Digital Life, Inc. BAJA MINING: Ontario Court Approves Class Action Settlement ----------------------------------------------------------- Baja Mining Corp. on Feb. 22 announced that the previously disclosed settlement of the Donohue class action has been approved by the Ontario Superior Court of Justice and, as part of the settlement, the action has been dismissed. In news releases dated October 6, 2015 and November 9, 2015, Baja announced the execution of a settlement agreement (the "Settlement") between the parties to the Donohue class action litigation (the "Action") providing among other things that the Action would be dismissed, no liability would be admitted, and the Settlement Amount would be $11,000,000, inclusive of administration and legal costs of the class, and of any other costs or expenses related to the Action or the Settlement. The Settlement Amount will be covered by Baja's insurers. On February 19, 2016, the Ontario Superior Court of Justice approved the Settlement and dismissed the Action. The judge's reasons for decision will be released at a later date. Tom Ogryzlo, Interim CEO, stated, "I am pleased to have the distraction caused by the class action litigation behind the Company at last. As I noted previously, the prospect of this final settlement has enabled us to focus on seeking opportunities for creating value for our shareholders." Mr. Ogryzlo added, "While these markets remain challenging, I believe that projects with the right characteristics can be funded and advanced. Our objective remains to preserve the Company's longer-term participation in the Boleo Project, through the development of a platform that will enable the Company to pursue projects with potential to generate short term cash flow." The Company continues to evaluate the development of Cinto Colorado, including the potential capability to supply feed to the Boleo plant. The possibility of supplying concentrate feed to the Boleo process plant, which is currently underutilized, is currently being investigated. The Company has presented this concept to KORES and has engaged SNC-Lavalin to undertake a preliminary assessment of the installation and operation of an autoclave at Cinto Colorado to process copper sulfide concentrates with high levels of impurities as potential feed to the SX/EW circuits of the adjacent Boleo plant. Assuming positive results of the SNC-Lavalin study and the cooperation of KORES, the Company would expect to undertake a consolidation of its shares, a name change and a financing to recapitalize the Company's balance sheet and provide sufficient funds to support its development concepts. Mr. Ogryzlo and Baja board director, Wolf Seidler, are currently returning from Boleo where they met with senior management of Minera y Metal£rgica del Boleo, S.A. P.I. de C.V. for an update on the activities at site, including performance of the process plant and commissioning of the cobalt and zinc circuits, and the underground mine. The Company will issue a further news release in due course to update its shareholders. Neither TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release. BASIC RESEARCH: Court Nixes Attempt to Moot Plaintiff's Claims -------------------------------------------------------------- Patrick T. Ryan, Esq. -- pryan@mmwr.com -- of Montgomery McCracken Walker & Rhoads LLP, in an article for Lexology, reports that a federal district court judge in New York has denied a request by the defendants in a putative class action to deposit funds with the Clerk of Court in the amount of the defendants' Rule 68 offer of judgment ($400) -- an amount the defendants assert would moot the two named plaintiffs' individual claims and require dismissal of the proposed class action. Brady v. Basic Research, L.L.C. et al., No. 2:13-cv-7169, 2016 WL 462916 (E.D.N.Y. Feb. 3, 2016). The decision represents an early response by a federal trial judge to a question the United States Supreme Court left open in the January decision in Campbell-Ewald Co. v. Gomez, 2016 WL 228345 (U.S. Jan. 20, 2016). The Brady case involves claims, by two purchasers of Zantrex weight control supplements, that the defendants falsely advertised the effectiveness of the supplements. The defendants made a Rule 68 offer of judgment to each plaintiff -- offering $200 to each -- and then, the day after the Supreme Court issued the Campbell- Ewald decision, filed a motion under Rule 67 of the Federal Rules of Civil Procedure for permission to deposit the $400 with the court. In Campbell-Ewald, the Supreme Court ruled that a named plaintiff's proposed class action is not rendered moot when the defendant makes a settlement offer or a Rule 68 offer of judgment that would satisfy the plaintiff's individual claim but the plaintiff refuses to accept the offer. 2016 WL 228345, at *5-8. Justice Ginsburg's majority opinion specifically noted, however, that the Court was not deciding whether a case would be mooted if a defendant goes one step further and actually "deposits the full amount of the plaintiff's individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount" -- because that had not happened in the Campbell-Ewald case. Id. at *8. The defendants in Brady wanted to take that extra step. From the various opinions in Campbell-Ewald, it appeared that at least three (and perhaps four) justices had already expressed their views on the question the majority reserved for a future case: Chief Justice Roberts's dissent (joined by Justices Scalia and Alito) would have held an unaccepted offer sufficient and indeed said, "For aught that appears, the majority's analysis may have come out differently if Campbell had deposited the offered funds with the District Court." 2016 WL 228345, at *18. And while Justice Thomas concurred in the judgment that an unaccepted offer was not enough, he wrote that he would construe Article III's case-or-controversy requirement by looking to the common-law rules of tender -- which he concluded required that a defendant actually produce the sum of money being offered. Id. at *10. Justice Scalia's death may thus affect how this issue ultimately gets resolved by a closely divided Court. In Brady, District Judge Sandra Feuerstein gave two reasons for her denial of the defendants' request to deposit the funds with the Clerk of Court. First, she explained that Rule 67 (which provides for depositing money with the court) expressly requires "leave of court" and has been interpreted to relieve a depositor of the burden of administering an asset. 2016 WL 462916, at *1. She concluded, however, that the defendants were seeking permission "to deposit funds into court to moot this case and not to relieve themselves of the burden of administering an asset." Id. at *2. Second, she pointed out that in Campbell-Ewald, the majority opinion states that "a would-be class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted." Id. at *1-2 (quoting Campbell-Ewald, 2016 WL 228345, at *7). In light of that "directive," Judge Feuerstein concluded that granting the defendants' request was "not warranted." Brady, 2016 WL 462916, at *2. The defendants in Brady appear ready to test the issue further. The docket in the case shows that the day after Judge Feuerstein denied their Rule 67 motion, they wrote to the judge, informing her that they had wired the $400 to an IOLTA account at Wells Fargo Bank and that it would be held there for the benefit of the two plaintiffs. They said, "With the funds now deposited and available to afford Plaintiffs complete relief, Defendants respectfully submit that the Court should enter judgment in Plaintiffs' favor and grant Defendants' pending motion to dismiss, as Plaintiffs no longer have any live or justiciable claim." In light of the Supreme Court's reservation of the issue in Campbell-Ewald, it seems likely that other defendants will argue that depositing funds with the court or in a bank account earmarked for the named plaintiffs should moot the plaintiffs' individual claims and require dismissal of the class action allegations. Plaintiffs will respond that the deposited funds do not provide complete relief because there is no finding or admission of liability and there is no determination of their request to pursue claims on behalf of absent class members. They will point to the statement in Campbell-Ewald that "a would-be class representative with a live claim of her own must be accorded a fair opportunity to show that certification is warranted" -- and defendants will respond that, once the funds are deposited with the court or in a bank, that "would-be class representative" will no longer have a "live claim of her own." Ultimately, it looks like this question will need to go back to the Supreme Court. BECK ENERGY: Ruling in Oil & Gas Lease Dispute Upheld ----------------------------------------------------- In the appellate case, THE STATE EX REL. CLAUGUS FAMILY FARM, L.P., v. SEVENTH DISTRICT COURT OF APPEALS ET AL. HUSTACK ET AL., Appellants, v. BECK ENERGY CORPORATION, Appellee, Nos. 2014-0423, 2014-1933, (Ohio), Justice Judith L. French of the Supreme Court of Ohio affirmed an order by the Seventh District Court of Appeals holding that certain oil and gas leases preclude the imposition of an implied covenant to develop within the primary term of the lease, and denied the motion for writs of mandamus and prohibition as well as Beck Energy's motions to toll the terms of leases. Larry A. and Lori Hustack -- along with Clyde A. and Molly A. Hupp, who did not remain parties to the lawsuit when the complaint was amended -- filed suit against Beck Energy in the Monroe County Court of Common Pleas. The Hustacks are successors in interest to lessors who signed a lease known as a "Form G&T (83) lease" with Beck Energy in 2008. The lease contains blank lines for the lessors' names, for the period during which a well was to be commenced unless delay rental -- that is, an amount paid to the landowner in lieu of development -- was paid, for the amount of the delay rental, and for other information. The complaint sought a judgment declaring that the Form G&T (83) leases were void as against public policy and to quiet title. A subsequently amended complaint asserted claims on behalf of a class of over 400 Monroe County landowners who had signed Form G&T (83) leases with Beck Energy. Claugus Family, which was not a named plaintiff in the appeal, owns a tract of land in Monroe County. A prior owner of the land had signed a Form G&T (83) lease with Beck Energy. According to Claugus Family, during the first ten years of the lease on its property, no well was drilled, no oil or gas was produced, Beck Energy did not search for oil or gas, and Beck Energy expressed no intent regarding future production. Claugus Family then filed a complaint in this court naming the Seventh District Court of Appeals and three judges on that court as respondents. Beck Energy was granted leave to intervene in the action. Claugus Family asserts that the order in the appeal tolled its lease with Beck Energy retroactively to October 1, 2012, without notice. Claugus Family claims that the tolling order negatively affected the value of its property, violated its right to due process, and violated the rights of other landowners and that it might expose the landowners to liability for breach of contract. Claugus Family claims that it had or has no plain and adequate remedy in the ordinary course of law. Claugus Family requests an order prohibiting the enforcement of portions of the September 2013 tolling order and an order vacating the order to the extent that it applies to Claugus Family as an unnamed class member. Beck Energy, on the other hand, claims that Claugus Family breached its lease by entering into the Gulfport lease because the Beck Energy lease prohibited the lessor from entering into any other oil and gas lease while the lease was in effect. These consolidated actions, an original action in this court and an appeal of a judgment of the Seventh District Court of Appeals, address the interpretation of a number of nearly identical oil and gas leases. The appeal challenges the Seventh District's interpretation of the leases in a class action. The original action seeks writs of prohibition and mandamus. In the original action, relator, Claugus Family Farm, L.P. an absent and unnamed plaintiff in the class action, challenges the Seventh District's order tolling the leases in the class action. In his Opinion dated January 21, 2016 available at http://is.gd/pKc6bMfrom Leagle.com, Justice French affirmed the Appeals Court's judgment in case No. 2014-1933, because the leases set forth a definite period of ten years in which development must occur. The Supreme Court also denies a writ of mandamus or of prohibition in case No. 2014-0423 because Claugus Family had an adequate remedy in the ordinary course of law by moving to intervene in the appeal and because the Seventh District did not patently and unambiguously lack jurisdiction to issue an order tolling the leases pending appeal. Finally, the Supreme Court denies Beck Energy's motions to toll the terms of the leases. Michael DeWine, Esq. of Attorney General; and Sarah Pierce, Esq. - - Sarah.Pierce@OhioAttorneyGeneral.gov -- and Tiffany Carwile, Esq. -- Tiffany.Carwile@OhioAttorneyGeneral.gov -- as Assistant Attorneys General, serve as counsel for Respondents in case No. 2014-0423. Richard V. Zurz Jr., Esq. -- rzurz@slaterzurz.com -- and Mark A. Ropchock, Esq. -- mropchock@slaterzurz.com -- of Slater & Zurz, L.L.P., serve as counsel for Appellants in case No. 2014-1933 BHP BILLITON: Faces Securities Class Action by Retirement Fund -------------------------------------------------------------- Jackson County Employees' Retirement System, Individually and on behalf of all others similarly situated, the Plaintiffs v. BHP Billiton Limited, BHP Billiton PLC, Jac Nasser, Andrew Mackenzie, Peter Beaven and Graham Kerr, the Defendants, Case No. 1:16-cv- 01445 (S.D.N.Y., February 24,2016), seeks compensatory damages for misrepresentations or failure to disclose material facts in its financial reports during the class period. The Plaintiff brings this securities class action on behalf of all purchasers of the American Depositary Receipts of BHP between September 25, 2014 and November 30, 2015, inclusive. According to the Plaintiffs, during the Class Period, the Defendants made materially false and misleading statements concerning the Company's commitment to safety and implementation of safety and monitoring protocols. Prior to and during the Class Period, Defendants knew or recklessly disregarded the precarious condition of the Fundao dam and Samarco's tailings facilities in Brazil. When the truth about the Company's operations was revealed in a series of public disclosures and reports shortly after the Samarco disaster, between November 5 and 30, 2015, the price of the ADRs significantly declined, harming investors. The Plaintiff contends that the "Safe Harbor" warnings accompanying the Company's purportedly forward looking statements during the Class Period were ineffective to shield those statements from liability. The Defendants, according to the Plaintiff, are liable for any false or leading forward-looking statement because at the time that each such statement was made, the speaker knew it was false or misleading or that it was authorized and/or approved by an executive officer who knew it was false or misleading. The Plaintiff is represented by: Samuel H. Rudman, Esq. David A. Rosenfeld, Esq. Joseph Russello, Esq. Michael G. Capeci, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 58 South Service Road, Suite 200 Melville, NY 11747 Tel: 631/367-7100 Fax: 631/367-1173 Email: srudman@rgrdlaw.com drosenfeld@rgrdlaw.com jrussello@rgrdlaw.com mcapeci@rgrdlaw.com - and - Thomas Michaud, Esq. Jack Timmony, Esq. VANOVERBEKE, MICHAUD & TIMMONY, P.C. 79 Alfred Street Detroit, MI 48201 Tel: 313-578-1200 Fax: 313-578-1201 E-mail: tmichaud@vmtlaw.com jtimmony@vmtlaw.com Defendant BHP is among the world's top producers of major commodities, including iron ore, metallurgical and energy coal, conventional and unconventional oil and gas, copper, aluminum, managanese, uranium, nickel and silver. The Company operates under a Dual Listed Company structure, with parent companies BHP Ltd. And BHP Plc operated as a single economic entity by a unified board and management team. Defendant Jac Nasser (Nasser) has served as a director of BHP Ltd. and BHP Plc since June 2006 and as Chairman of their Board of Directors (the Board) since March 31, 2010. Defendant Andrew Mackenzie (Mackenzie) has served as Chief Executive Officer ("CEO") and as a member of the Group Management Committee of BHP Ltd. and BHP Plc since May 10, 2013 and as a member of the Board since May 2013. He joined the Company in November 2008 as Chief Executive Non-Ferrous. Defendant Peter Beaven ("Beaven") has served as Chief Financial Officer ("CFO") and as a member of the Group Management Committee of BHP Ltd. and BHP Plc since October 2014. Defendant Graham Kerr ("Kerr") was CFO and a member of the Group Management Committee of BHP Ltd. and BHP Plc from November 2011 until October 1, 2014. He joined the Company in 1994 and except for a two-year hiatus, served in various executive roles, including as President of Diamonds and Specialty Products. He serves as CEO and a director of South32 Limited ("South32") a mining company spun out of BHP in May 2015. BLACKBERRY LTD: Dismissal Bids in "Semeran" Case Granted -------------------------------------------------------- District Judge Susan D. Wigenton granted Defendant's motion to dismiss in the captioned case RUSS SEMERAN, on behalf of himself and all others similarly situated, Plaintiff, v. BLACKBERRY CORPORATION, Defendant, Case No. 2:15-CV-00750-SDW-LDW, (D. N.J.). Russ Semeran brings this action on behalf of himself and all similarly-situated individuals and entities who purchased BlackBerry Cellular "Smart" Telephone Devices from BlackBerry later found to be defective. BlackBerry is incorporated under Delaware law, with its headquarters in Waterloo, Ontario, Canada. BlackBerry's U.S. headquarters is in Irving, TX. BlackBerry markets and sells the BlackBerry 10 Series Cellular Telephones. Due to its allegedly defective operating system, BB10 phone users experienced defects within the contact application, photo application, and BB10's inability to support Yahoo Calendar. Plaintiff alleges that BlackBerry knew or should have known about the defects in their pre-market testing of BB10 phones. BlackBerry continued to market and sell BB10 phones without curing or disclosing the defects. Plaintiff filed a six-count Class Action Complaint on behalf of himself and similarly situated New Jersey and nationwide class Plaintiffs, which was later amended on April 20, 2015, against BlackBerry alleging: (1) violations of New Jersey's Consumer Fraud Act (NJCFA), N.J.S.A. Section 56:8-2 et seq. (Count I); (2) fraudulent concealment/nondisclosure (Count II); (3) breach of implied warranties (Count III); (4) breach of express warranties (Count IV); (5) negligent misrepresentation (Count V); and (6) unjust enrichment (Count VI). BlackBerry seeks to dismiss all counts of Plaintiff's Amended Complaint pursuant to Fed.R.Civ.P. Rule 12(b)(6), which is opposed by Plaintiff. In her Opinion dated February 1, 2016 available at http://is.gd/7wvJ3mfrom Leagle.com, Judge Wigenton granted Defendant's motion to dismiss the amended complaint without prejudice. Plaintiff has 30 days from the date of this Opinion and Order to amend his Complaint. Judge Wigenton said Plaintiff has failed to satisfy Rule 9(b)'s heightened pleading requirement. Plaintiff generally alleges that Defendant made misrepresentations on its website and in an email announcing the launch of the Q10 model. However, Plaintiff fails to point to any specific statements from these sources. Plaintiff also quotes a press release and television commercial from Defendant, but does not identify which statements were false. Moreover, Plaintiff fails to allege the particular date, place, and time relating to any of these alleged misrepresentations. Importantly, Plaintiff does not allege that he read any of these specific statements prior to his purchase on June 5, 2013 or that any of these statements caused him to purchase the Q10. Plaintiff has failed to state a claim for fraudulent concealment under Rules 8(a) or 9(b). Plaintiff alleges that Defendant had "exclusive knowledge of the Defects at the time of sale" and it nevertheless deceived consumers into purchasing defective smartphones. According to Plaintiff, Defendant stated on its website that the Blackberry Q10 smartphones provided a "contact" feature and made no mention of the device's inability to place outgoing calls. However, Judge Wigenton said, Plaintiff fails to allege that he read and reasonably relied on that statement prior to his purchase on June 5, 2013. Moreover, Plaintiff does not plead that Defendant intended that Plaintiff rely on its statement, or that his particular phone was damaged as a result. Plaintiff has not sufficiently set forth a claim for negligent misrepresentation under Rules 8(a) or 9(b). David Harrison, Esq. and Joseph Isaac Harrison, Esq. of Harrison Harrison & Associates Ltd. serve as counsel for Plaintiff Russ Semeran Leah Kelman, Esq. -- lkelman@herrick.com -- and Ronald J. Levine, Esq. -- rlevine@herrick.com -- of Herrick, Feinstein LLP serve as counsel for Defendant Blackberry Corporation BLUE BUFFALO: Settles False Advertising Class Action for $32MM -------------------------------------------------------------- Lawyer Herald reports that Blue Buffalo, the natural pet food company has agreed to pay $32 million after a customer complained of their false advertising. This would give their customers a chance to claim refunds after Blue Buffalo settled the consumer class-action lawsuit to allegedly prevent further proceedings' expense. The Connecticut-based pet food company claimed that their products are free of poultry byproducts such as corn, and have no artificial flavors, soy, wheat, or colors of preservatives. However, laboratory tests indicated that Blue Buffalo products indeed contain poultry byproducts, AL reports. The results led to consumer protest including mislabeling and false advertising charges against Blue Buffalo. The company dismissed the allegations and pointed out that their supplier is the one responsible for the issues. "More than a year ago, we informed our pet parents about the misconduct of a former ingredient supplier and broker. While we still continue to pursue our claims against them, we decided that it is in the best interest of our pet parents and our company to resolve the class actions now," Bill Bishop, chairman and founder of Blue Buffalo said in a statement. Blue Buffalo is offering a refund to consumers who bought products included in the consumer class action lawsuit settlement covering the period of May 7, 2008 to Dec. 18, 2015. Consumers can file and submit their claim at www.petfoodsettlement.com by April 14, 2016. Those who purchased products with receipts can claim up to a 10% refund, capped at $200. Meanwhile, consumers who don't have receipt can get $10 refund. It is not the first time for Blue Buffalo to face a lawsuit over false advertising claims. Last year, its St. Louis-based rival Nestle Purina PetCare sued Blue Buffalo for the same allegations. "Blue Buffalo's announcement of a $32 million consumer class action settlement -- the largest pet food class action settlement ever -- comes a full seven months after Blue admitted mislabeling products and 19 months after Purina sued Blue Buffalo for false advertising and misleading pet parents. Purina is pleased Blue Buffalo is beginning to accept responsibility for its false advertising and mislabeling, Purina spokeswoman said of Blue Buffalo's settlement, according to Biz Journals. The case between Blue Buffalo and Nestle Purina is still being heard in court. Blue Buffalo continues to remain firm with its claim that they hold no responsibility on the product ingredients as it is fault by their supplier and broker. BLOOMIN' BRANDS: Court Tosses "Lang" Race Bias Suit --------------------------------------------------- District Judge William T. Moore, Jr. granted Defendants' motion for summary judgment in the case, EDWARD V. LANG, Plaintiff, v. BLOOMIN' BRANDS, INC., and OUTBACK STEAKHOUSE, Defendants, Case No. CV414-196, (S.D. Ga.) Plaintiff is an African-American man who was employed as a busser at an Outback Steakhouse in downtown Savannah, Georgia. During Plaintiff's employment, the restaurant was managed by Sarah Miller, the Managing Partner; Jeremy Webb and Joshua Curry, both Managers; and David Schultz the Kitchen Manager. The restaurant, in addition to several others, was overseen by Eldridge "Ridge" Sink, II. As part of Sink's responsibilities, he conducted training on Outback policies and procedures, and also addressed serious issues of reported discrimination and harassment. Plaintiff alleges that his initial hiring as a busser was only a temporary position and that he was told by Mr. Shultz that he would be promoted when a higher paying kitchen position became available. Plaintiff sent a complaint to Mr. Sink about racist behavior towards African-Americans in the downtown Savannah Outback. Generally, the complaint alleged (1) "diabolical blatant anti- Black practice(s) at outback steakhouse downtown Savannah"; (2) a "totally improper statement to Plaintiff regarding cleaning [a] table"; (3) that Annie Miller3 "talked loud and unprofessionally to Plaintiff" concerning cleaning tables; (4) that once Jeremy Webb "confronted Plaintiff . . . in an extreme negative manner pointing to another table as if Plaintiff was his slave"; (5) that on one occasion Mr. Webb "became argumentative with Plaintiff;" (6) Mr. Webb harassed Plaintiff about not performing his work adequately, (7) that the managers were "using outback to implement a clandestine and/or questionable business practice/ethic toward Blacks;" (8) that Plaintiff was not receiving proper pay; and (9) that Plaintiff was not receiving proper tips or wages. Upon receipt of the complaint, Mr. Sink contacted Robert Donovan, an in-house employment attorney for Outback. Mr. Donovan directed Mr. Sink to investigate the complaint. Mr. Sink spoke with Sarah Miller and Plaintiff as part of his investigation. While Mr. Sink was unable to substantiate Plaintiff's complaints, he did discuss the allegations with Plaintiff. In his discussion, Mr. Sink noted that Plaintiff believed Mr. Webb had improved since his letter. Although Mr. Sink believed that the situation was improving, Plaintiff alleges that, in fact, the situation for African- American employees at Outback deteriorated after his complaint and that Mr. Sink spent very little time with him discussing his complaint. Defendant moves for summary judgment. In his Order dated February 9, 2016 available at http://is.gd/5xj20ofrom Leagle.com, Judge Moore, Jr. granted Defendants' motion for summary judgment and dismissed Plaintiffs' claims. The Clerk of Court is directed to close the case. The facts of this case clearly satisfy the first and second elements of the prima facie hostile work environment claim, the Court explained. Plaintiff is African-American and suffered some level of harassment at the hands of his co-workers. However, even if the conduct of Plaintiff's co-workers was motivated by Plaintiff's race, the Court is unable to conclude that Plaintiff experienced harassment that was severe or pervasive. The Court also said the harassing conduct was simply too infrequent; did not permeate the workplace with discriminatory intimidation, ridicule, and insult; and was not physically threatening or humiliating. BOEING COMPANY: Faces Securities Class Action in Illinois --------------------------------------------------------- Pomerantz LLP on Feb. 22 disclosed that a class action lawsuit has been filed against The Boeing Company ("Boeing" or the "Company") and certain of its officers. The class action, filed in United States District Court, Northern District of Illinois, and docketed under 16-cv-02454, is on behalf of a class consisting of all persons or entities who purchased Boeing securities between February 9, 2012 and February 11, 2016 inclusive (the "Class Period"). This class action seeks to recover damages against Defendants for alleged violations of the federal securities laws under the Securities Exchange Act of 1934 (the "Exchange Act"). If you are a shareholder who purchased Boeing securities during the Class Period, you have until April 22, 2016 to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at www.pomerantzlaw.com To discuss this action, contact Robert S. Willoughby at rswilloughby@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll free, ext. 9980. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and number of shares purchased. Boeing, together with its subsidiaries, designs, develops, manufactures, sells, services, and supports commercial jetliners, military aircraft, satellites, missile defense, human space flight, and launch systems and services worldwide. The Company operates in five principal segments: Commercial Airplanes, Boeing Military Aircraft, Network & Space Systems, Global Services & Support, and Boeing Capital. The Complaint alleges that throughout the Class Period, defendants made materially false and misleading statements regarding the Company's business, operational and compliance policies. Specifically, defendants made false and/or misleading statements and/or failed to disclose that: (i) Boeing's use of program accounting for the Company's 787 Dreamliner and/or 747 jumbo aircrafts relied on inflated sales forecasts; (ii) Boeing's use of program accounting for the Company's 787 Dreamliner and/or 747 jumbo aircrafts relied on understated estimates of production costs; and (iii) as a result of the foregoing, Boeing's public statements were materially false and misleading at all relevant times. On February 11, 2016, Bloomberg News reported that the SEC is investigating whether Boeing properly accounted for the costs and expected sales of its 787 Dreamliner and 747 jumbo aircraft. On this news, Boeing shares fell $7.92, or 6.8%, to close at $108.44 on February 11, 2016. With offices in New York, Chicago, Florida, and Los Angeles, The Pomerantz Firm -- http://www.pomerantzlaw.com-- concentrates its practice in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, the Pomerantz Firm pioneered the field of securities class actions. Today, more than 80 years later, the Pomerantz Firm continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. The Firm has recovered numerous multimillion-dollar damages awards on behalf of class members. BRITISH PETROLEUM: "Townsend" Case Transferred to N.D. Alabama -------------------------------------------------------------- Magistrate Judge Joseph C. Wilkinson, Jr. sends the case, ROBERT JAMES TOWNSEND, v. BRITISH PETROLEUM, SECTION "J"(2), Civil Action No. 15-5033 (E.D. La.) to the United States District Court for the Northern District of Alabama, Middle Division. "I find that venue is both proper and most appropriate in the Northern District of Alabama. The convenience of the parties and witnesses and the interests of justice warrant transfer of this case," Judge Wilkinson said in his Feb. 19 Order, a copy of which is available at http://goo.gl/i5q4Pwfrom Leagle.com. The BELO portion of the Medical Benefits Class Action Settlement Agreement in In re Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of Mexico, on April 20, 2010, MDL No. 2179, Record Doc. No. 6427-1 at pp. 60-73, and this court's Case Management Orders, Record Doc. No. 14099 in MDL No. 2179 and Record Doc. No. 6 in the captioned case, provide for determination by this court, with the input of the parties, of the appropriate venue for discovery and dispositive proceedings, Judge Wilkinson explains. Pro se plaintiff Robert James Townsend has requested that this case "remain in the Eastern District of Louisiana under the Jones Act (Merchant Marine Act of 1920)." Defendants have filed a Motion to Transfer Venue to the United States District Court for the Northern District of Alabama. Robert James Townsend, Plaintiff, Pro Se. British Petroleum, BP Exploration & Production Inc, and BP America Production Company are represented by: Kevin Michael Hodges, Esq. Williams & Connolly, LLP 725 Twelfth Street, N.W. Washington, D.C. 20005 Tel: 202-434-5221 Fax: 202-434-5029 E-mail: khodges@wc.com - and - Catherine Pyune McEldowney, Esq. Maron Marvel Bradley and Anderson LLC 1201 N. Market Street, Suite 900 Wilmington, DE 19801 Telephone: (302) 425-5177 Facsimile: (302) 425-0180 E-mail: cpm@maronmarvel.com - and - Don Keller Haycraft, Esq. Liskow & Lewis One Shell Square 701 Poydras Street, Suite 5000 New Orleans, LA 70139 Tel: (504) 581-7979 Fax: (504) 556-4108/ (504) 556-4120 E-mail: dkhaycraft@liskow.com CALIFORNIA: Inmate's Suit Over Prison Riot Dismissed ---------------------------------------------------- In the case, KENNY CHASE, Plaintiff, v. J. LOPEZ, Defendant, No. 1:14-cv-01853-EPG-PC, (E.D. Cal.), Magistrate Judge Erica P. dismissed the first amended complaint but gave the plaintiff an opportunity to file a revised complaint. Kenny Chase is a state prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. Section 1983. Plaintiff filed the Complaint commencing this action on November 3, 2014, as part of a purported class action brought by a fellow inmate. The Court dismissed that case because it was not a proper class action and gave leave for the individual plaintiffs to file separate lawsuits. Plaintiff filed his own first amended civil rights complaint on December 4, 2014. He alleges that prison officials negligently failed to secure cleaning implements, which could have been used as weapons. He then alleges that after an ensuing riot, prison officials put Plaintiff back in the same environment as the inmates who rioted. Plaintiff then asks for compensation. In her Screening Order dated January 21, 2016 available at http://is.gd/aKNiwafrom Leagle.com, Judge Grosjean dismissed the Plaintiff's first amended complaint for failure to state a claim under section 1983, with leave to amend. Under Rule 15(a) of the Federal Rules of Civil Procedure, "leave to amend shall be freely given when justice so requires." It is unclear whether there exist facts that would state a claim as to this individual Plaintiff, but the Court will provide Plaintiff with time to file an amended complaint. The Court finds that, taken alone, Plaintiff's complaint fails to state a claim. Plaintiff does not describe the involvement of any individual defendant, does not allege facts showing that any defendant knew of a risk and deliberately disregarded it, and does not allege any injury to himself. Because the Court finds upon screening that Plaintiff has failed to state a claim, it dismisses Plaintiff's First Amended Complaint with leave to amend. Plaintiff is granted leave to file a Second Amended Complaint within 30 days if he chooses to do so. The amended complaint must allege constitutional violations under the law. Specifically, Plaintiff must state what each named defendant did that led to the deprivation of Plaintiff's constitutional or other federal rights. There is no respondeat superior liability, and each defendant is only liable for his or her own misconduct. Plaintiff must also demonstrate that each defendant personally participated in the deprivation of his rights by acting with deliberate indifference to Plaintiff's health or safety, which is sufficiently serious. Plaintiff must also describe how if at all Plaintiff himself was injured. CALIFORNIA CULINARY: Order Striking Class Allegations Affirmed -------------------------------------------------------------- Justice Therese M. Stewart affirmed a trial court order striking all class allegations in the appellate case, MARIE ENEA, ET AL., Plaintiffs and Appellants, v. CALIFORNIA CULINARY ACADEMY, INC., ET AL., Defendants and Respondents, No. A141886, (Cal. App.). Plaintiffs sued Defendants in the San Francisco City and County Superior Court. They alleged that as a result of numerous misrepresentations they and a putative nationwide class were wrongly induced to become cosigners for, or direct borrowers of, loans for students attending Defendant California Culinary Academy (CCA), located in San Francisco, California, from 2003 to 2008. They appeal from the trial court's order granting Defendants' motion to strike all class allegations from their second amended complaint. The issue presented by this appeal is whether Plaintiffs have sufficiently alleged a community of interest so as to maintain a putative class action past the pleading stage. In an Opinion dated February 3, 2016 available at http://is.gd/YBdLNwfrom Leagle.com, Justice Stewart affirmed the trial court's order striking all class allegations. "We conclude plaintiffs' [second amended complaint] allegations raise statute of limitations issues that necessarily require individualized inquiries into the liability of many, if not all, putative class members. As a result, there is no reasonable possibility plaintiffs can establish a community of interest among its proposed class because individual issues predominate over common questions of law and fact. Therefore, we affirm the trial court's order." CANADA: Koskie Minsky Commences CPRI Class Action v. Ontario ------------------------------------------------------------ Koskie Minsky LLP on Feb. 22 disclosed that it has commenced an action on behalf of representative plaintiff, James Templin, in a proposed class action against the Province of Ontario in respect of the Child and Parent Resource Institute ("CPRI") in London, Ontario. CPRI was a "Schedule 1" facility that housed persons labelled as developmentally challenged and delayed pursuant to the Developmental Services Act. It was formerly named the "Children's Psychiatric Research Institute". The lawsuit alleges that the Province was negligent and breached its fiduciary duty by virtue of its operation, management, administration, supervision and control of CPRI, resulting in physical, sexual, and emotional abuse of residents, as well as other harms. The plaintiff brings this lawsuit on behalf of all persons who were alive as of February 22, 2014, and who resided at CPRI sometime during the period from September 1, 1963 until July 1, 2011. The lawsuit seeks $100 million in general damages and $100 million in punitive damages. This case follows the settlements in class actions concerning the Huronia, Southwestern and Rideau Regional Centres in 2013 and 2014, all of which were Schedule 1 facilities. In addition, in November 2015, Koskie Minsky settled another class action concerning 12 other Schedule 1 institutions, for which a court approval hearing is scheduled in April 2016. In total, therefore, settlements for individuals who were abused at 15 of the 19 Schedule 1 facilities have been reached. While CPRI was initially proposed for inclusion, the Province refused to include it in the settlement. "It is not clear why the Province chose to compensate those individuals who were abused at other Schedule 1 Facilities, but not at CPRI. Many residents of CPRI have suffered horrible abuses on the Province's watch that have gone ignored for far too long. This lawsuit finally represents a real shot at access to justice for these vulnerable people," says David Rosenfeld -- drosenfeld@kmlaw.ca -- a partner at Koskie Minsky LLP with carriage of the matter. On December 22, 2015, the Province was notified of the plaintiff's intention to file this lawsuit pursuant to the Proceedings Against the Crown Act. CENTERPLATE: Super Bowl 50 Worker Files Class Action ---------------------------------------------------- Chris Filippi, writing for KCBS, reports that a new lawsuit claims many people who staffed Levi's Stadium during Super Bowl 50 were not paid for all of the hours they worked, which could eventually apply to thousands of workers. Concession worker Gabriel Thompson says he worked a 17-hour shift for the Super Bowl but was not paid for hours he spent on or waiting for company shuttles to the stadium. Attorney Caren Senser, who represents the plaintiff, told KCBS, "The employees were entitled to be paid for all hours that they worked, and because this extended the hours beyond 12 hours in the day, they are actually entitled to double time for all the hours that they worked after 12." Ms. Sencer said Thompson and others were also not given required breaks. "California is very protective of workers in that role. And there were long and hard fights in order to get meal periods and rest periods and effective mechanisms to enforce the employee's rights to have meal and rest periods. And they seemed to completely disregard them," the attorney said. The lawsuit targets Centerplate as well as company executives. Ms. Sencer said she's seeking class-action status for the lawsuit and it could eventually cover as many as 3,000 workers. Centerplate has yet to respond to requests for comment. CHARTER COMMUNICATIONS: Faces "Jones" TCPA Class Suit in Conn. -------------------------------------------------------------- Ann Jones, Individually and on behalf of all others similarly situated, the Plaintiffs v. Charter Communications, Inc., the Defendant, Case No. 3:16-cv-00296 (D. Conn, February 24, 2016), seeks damages for violation of the Telephone Consumer Protection Act. The Complaint says the Defendant initiate calls to residential landline telephones of Plaintiff and Class Members, in an effort to sell or solicit its services, using an artificial or prerecorded voice to deliver a message without their prior express consent. The Plaintiff is represented by: Neal L. Moskow, Esq. URY & MOSKOW, L.L.C. 883 Black Rock Turnpikes Fairfield, CT 06825 Telephone: (203) 610-6393 Facsimile: (203) 610-6399 Email: neal@urymoskow.com - and - Francis J. "Casey" Flynn, Jr., Esq. Tifanny M. Yiatras, Esq. CAREY, DANIS & LOWE 8235 Forsyth Boulevard, Suite 1100 Saint Louis, MO 63105-1643 Telephone: (314) 725-7700 Facsimile: (314) 721-0905 Email: francisflynn@gmail.com tyiatras@careydanis.com - and - Anthony S. Bruning, Esq. Anthony S. Bruning, Jr., Esq. Ryan Bruning, Esq. THE BRUNING LAW FIRM, LLC 555 Washington Avenue, Suite 600 St. Louis, MO 63101 Tel: (314)231-9600 Fax: (314)231-9480 Email: tony@bruninglegal.com aj@bruninglegal.com ryan@bruninglegal.com - and - Richard S. Cornfeld, Esq. LAW OFFICE OF RICHARD S. CORNFELD 1010 Market Street, Suite 1720 St. Louis, MO 63101 Tel: (314)241-5799 Fax: (314) 241-5788 Email: rcornfeld@cornfeldlegal.com Defendant Charter Communications, Inc. is a Delaware corporation with its principal place of business in Connecticut. It provides cable TV, internet and telephone services to customers nationwide. CHESAPEAKE ENERGY: Oil & Gas Leases Suit Stays in Federal Court --------------------------------------------------------------- Jessica Karmasek, writing for Legal Newsline, reports that a federal appeals court recently sided with a group of oil and gas companies, ruling that a lawsuit filed against them by a class of post-foreclosure owners of disputed mineral interests should remain in federal court. The U.S. Court of Appeals for the Fifth Circuit, in an opinion filed in January, also noted that the burden should be placed on the plaintiffs who seek to remand a case based on one of the Class Action Fairness Act's limited exceptions. "If the applicability of an exception is not shown with reasonable certainty, federal jurisdiction should be retained," Circuit Judge Leslie Southwick wrote for a majority of the three-judge panel. The defendant oil and gas companies, including Chesapeake Energy Corp., operate producing wells in Johnson and Tarrant counties, Texas. The companies had obtained oil and gas leases on commercial and residential property in downtown Fort Worth and adjacent locations. As a result, the defendants leased a substantial number of third-of-an-acre, quarter-of-an-acre plots. Allegedly, numerous lessors lost their property through foreclosure subsequent to the execution of their leases. A petition filed in state court claimed the defendants had not always obtained subordinations of prior mortgages to the oil and gas leases, which allegedly caused the mortgaged property to pass free and clear of the leases to those who purchased through foreclosure. The petition also asserted that after foreclosure, the defendants continued to produce from the relevant wells without "undertaking the significant, expensive curative work" to address the ownership changes. Plaintiff Arbuckle Mountain Ranch of Texas Inc. filed a lawsuit on behalf of itself and a putative class of 3,000 to 5,000 members in a Texas state court in November 2014. The class -- post-foreclosure owners of the disputed oil and gas interests -- claims the defendants' oil and gas leases automatically terminated upon foreclosure and the companies' continued operation of these wellheads constituted trespass and conversion. The defendants removed the case to the U.S. District Court for the Northern District of Texas, pursuant to CAFA, soon after. In August, the Northern District of Texas granted Arbuckle's motion to remand the case to Texas state court, holding the local controversy exception applied. The local controversy exception requires that two-thirds of the proposed class, along with at least one defendant, be citizens of the state where the class action was originally filed. Under the exception, the class' principal injuries also must be incurred in that same state. The defendant companies appealed to the Fifth Circuit. The Fifth Circuit, in its Jan. 7 decision, reversed the Northern District of Texas' ruling, concluding that Arbuckle's state court petition was ambiguous as to the scope of the proposed class. "Arbuckle's petition contains two conflicting class definitions," Southwick wrote in the 13-page majority opinion. "After reviewing Arbuckle's petition, the parties' briefs, and the record, we have no basis to conclude the class is only of current owners, or conversely that it covered all post-foreclosure owners including interim owners. Further, plaintiffs concede there is no evidence that, under the broad definition, over two-thirds of the class are Texas citizens. "Because the class that the petition at the time of removal sought to have certified is not clearly limited to current owners, and with inadequate evidence of the citizenship of the interim owners in the broader class, Arbuckle has not proven that the exception for local controversies applies." Circuit Judge Jennifer Walker Elrod, in her dissent, agreed with the district court's determination that the local controversy exception required remand of the case to state court. "The law of our circuit does not require such a presumption in favor of federal jurisdiction, nor should it," she wrote. "Moreover, if the facts of this case do not satisfy the local controversy exception 'with reasonable certainty,' then the majority's presumption is a strong one indeed." CHICAGO: "Bell" Suit Seeks Damages Over Impoundment Code -------------------------------------------------------- Dawain Bell and Alice Spinks, and all others similarly-situated v. The City of Chicago, Case No. 2016-CH-00528 (Ill. Cir., January 14, 2016), seeks damages, declaratory and other relief against the Defendant's vehicular impoundment code. The Defendant is a municipal corporation. The Plaintiffs are represented by: Donald K. Birner, Esq. 2613 Mayflower Dr. Pekin, IL 61554 Tel: (309) 347-7058 CHURCH & DWIGHT: Faces "Wambach" Suit Over Deceptive Labels ----------------------------------------------------------- Jack Wambach, Jason Finn, and all others similarly-situated v. Church & Dwight, Co., Inc., Case No. 1:16-cv-01183 (N.D. Ill., January 26, 2016), is brought against the Defendant for violation of the Uniform Deceptive Trade Practices Act, violation of the Illinois Consumer Fraud and Deceptive Business Practices Act and claims under similar state statutes. The class action stems from defendant's marketing and selling of Vitafusion Multivites, L'il Critters Gummy Vites and other vitamin supplements as "Made in the USA," when the products contain substantial ingredients sourced from foreign countries. Defendant Church & Dwight is the manufacturer of the Vitafusion brand of Vitamins, including Vitafusion Multivites. The Plaintiffs are represented by: John E. Norris, Esq. DAVIS & NORRIS LLP The Bradshaw House 2154 Highland Avenue South Birmingham, AL 35205 Tel: (205) 930-9900 Fax: (205) 930-9989 E-mail: jnorris@davisnorris.com - and - Gerald Bekkerman, Esq. Jennifer Bekkerman, Esq. BEKKERMAN LAW OFFICES, LLC 444 N. Michigan Ave. #1000 Chicago, IL 60611 Tel: (312) 254-7399 E-mail: gbekkerman@bekkermanlaw.com jbekkerman@bekkermanlaw.com COMMAND SECURITY: Expects Court Approval of "Leal" Settlement ------------------------------------------------------------- Command Security Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on February 16, 2016, for the quarterly period ended December 31, 2015, that the Company expects court approval of the settlement in the "Leal" class action within the next two to three months. On April 29, 2014, the California Superior Court granted a plaintiff's motion (Leal v. Command Security Corporation) to certify a class consisting of all persons who were employed by the Company in a non-exempt security officer position within the State of California at any time since May 2, 2007 through the date of trial who agreed to and signed an on-duty meal period agreement at the time of their employment. The case is a certified class action involving allegations that the Company violated certain California state laws relating to on-duty meal and rest breaks. On November 12, 2015, the Company agreed to a maximum settlement amount of $2.0 million, including plaintiff's attorney fees and costs, administration costs, and certain other miscellaneous costs. As part of the settlement, the parties further agreed that (i) the final settlement will be subject to court approval; (ii) a minimum of 50% of the net proceeds will be distributed to the class; and (iii) the settlement will be paid in two installments, the first to be paid upon court approval of the final settlement agreement and the second to be paid no later than one year from final approval. The Company expects court approval within the next two to three months. The Leal v. Command Security Corporation lawsuit is one of numerous class action lawsuits filed during the past year against security guard companies in California related to meal and rest break regulations. The Company aggressively defended its position in this case; however, given the current environment in California regarding similar lawsuits, the Company believes that settling this matter under these terms provides a favorable outcome. In addition, the Company considered its assessment of the cost to continue to defend the case through trial and a potential appeal in its decision to settle. While the parties have established a maximum settlement amount at $2.0 million, the Company recorded a $1.4 million provision in the quarter ended September 30, 2015. This provision is based on the terms of the settlement and historical statistical information as to the expected rate of participation in similar cases provided to the Company by claims administrators. In the event the rate of participation in the settlement by class members were to exceed current estimates the final settlement amount could increase to the maximum settlement amount. The settlement will be administered over the next one to two years. Command Security principally provides uniformed security officers and aviation services to commercial, residential, financial, industrial, aviation and governmental customers through approximately 26 offices throughout the United States. COMPANIONS OF ASHLAND: "George" Suit Seeks Wages & Overtime Pay --------------------------------------------------------------- Dee Dee George, Plaintiff, on behalf of herself and all others similarly situated, the Plaintiffs v. Companions of Ashland, Inc., Defendant, Case No. 1:16-cv-00429-JG (N.D. Ohio, February 24, 2016), seeks payment for all hours worked and overtime hours pursuant to the Fair Labor Standards Act. The Complaint asserts that the FLSA requires that "non-exempt" employees receive overtime compensation of "not less than one and one-half times" the employees "regular rate" of pay and requires that "non-exempt" employees receive a minimum hourly wage for all work their employers suffer, permit or require them to perform. The Plaintiff is represented by: Joseph F. Scott, Esq. SCOTT & WINTERS LAW FIRM, LLC The Superior Building 815 Superior Avenue E., Suite 1325 Cleveland, OH 44114 Tel: 440-498-9100 E-mail: jscott@ohiowagelawyers.com rwinters@ohiowagelawyers.com CONAGRA FOODS: Faces "Backus" Suit Over Unhealthy Food Additive --------------------------------------------------------------- Troy Backus, on behalf of himself and all others similarly situated, Plaintiff, v. ConAgra Foods, Inc., Defendant, Case 4:16- cv-00454-DMR (N.D. Cal., January 26, 2016), seeks restitution and damages, disgorgement, punitive damages, prejudgment and post- judgment interest, attorneys' fees and costs and further relief for breach of express warranties and California Business and Professions Code Sec. 17200 and 17500. ConAgra is a Nebraska corporation with its principal place of business in Omaha. It owns, manufactures, markets, distributes and sells a large variety of margarine and vegetable oil spread products under the brand name Fleischmann's. It contains partially hydrogenated oil, a food additive banned in many parts of the world due to its artificial trans-fat content. The Plaintiff is represented by: Gregory S. Weston, Esq. David Elliot, Esq. THE WESTON FIRM 1405 Morena Blvd., Suite 201 San Diego, CA 92110 Tel: (619) 798-2006 Fax: (313) 293-7071 Email: greg@westonfirm.com david@westonfirm.com CONAGRA FOODS: Seeks Dismissal of ERISA Class Action ---------------------------------------------------- Daniel Siegal, writing for Law360, reports that ConAgra urged a California federal judge on Feb. 22 to toss a putative class action alleging the company's health plan is violating the Employee Retirement Income Security Act by refusing to cover treatments for autism, arguing the plan clearly -- and legally -- excludes the treatments at issue. During a hearing in Los Angeles, Elizabeth A. Bozicevic -- elizabeth.bozicevic@huschblackwell.com -- of Husch Blackwell LLP, representing ConAgra Foods Inc. Welfare Benefit Wrap Plan, urged U.S. District Judge Andre Birotte to toss named plaintiff and ConAgra employee Gabriella Raygoza's putative class action. COVENANT CARE: Class Certification Bid in "Tinsley" Case Granted ---------------------------------------------------------------- In the captioned case TYRAL TINSLEY on behalf of himself and all others similarly situated, Plaintiffs, v. COVENANT CARE SERVICES, LLC, et al., Defendants, Case No. 1:14CV00026 ACL, (E.D. Mo.), Magistrate Judge Abbie Crites-Leoni: -- granted Plaintiffs' motion for class certification; -- granted in part and denied in part Defendants' motion for summary judgment; and -- granted Plaintiffs' request to continue Defendants' motion for summary judgment. Plaintiffs comprise a group of current and former employees who worked for Defendant Covenant Care Services, Inc., a care agency that provides services such as adult day care for disabled adults. Plaintiffs represent a group of Independent Support Living Aides and Lead Independent Support Living Aides, who provide care services to Defendants' clients. Lead ISL Aides are essentially the "head cheerleader" of multiple Aides who work with the same client, but have no managerial responsibility. ISL Aides are paid hourly. ISL services are provided at the clients' residences, which can include up to two other disabled roommates. Some ISL clients lease properties from ABC Realty and BKC Properties. ABC Realty is owned in part by Defendant Chris Reagan and his wife Brandee Reagan; and BKC Properties is owned by Warren Reagan, Rebecca Reagan, Chris Reagan, and Brad Reagan. The Plaintiffs' Third Amended Complaint alleges that Defendants failed to properly pay Plaintiffs and all other similarly situated employees overtime compensation at a rate of not less than one- and-one-half times the regular rate of pay for work performed in excess of 40 hours per week, in violation of the Fair Labor Standards Act (FLSA), 29 U.S.C. Section 2010 et seq., and Missouri law. Plaintiffs bring the following three claims: (1) failure to pay overtime wages to nonexempt employees in violation of the FLSA (Count I); (2) failure to pay overtime wages in violation of Missouri Revised Statute Section 290.500, et seq. (Count II); and (3) Missouri common law claims for quantum meruit/unjust enrichment for Defendants' failure to pay overtime (Count III). Plaintiffs seek to recover their back pay, individually and on behalf of the proposed class. They also seek liquidated damages. Plaintiffs filed the Motion for Class Certification, while Defendants filed their Motion for Summary Judgment on the same date as their Response in Opposition to Plaintiff's Motion for Class Certification. Defendants argue that Plaintiffs' claims fail because Plaintiffs were all properly classified as exempt employees under the FLSA. In the alternative, Defendants request that the Court dismiss Plaintiffs' state law claims because they are preempted by the FLSA, dismiss Plaintiffs' claims for liquidated damages, impose a two-year statute of limitations, and dismiss certain individual Plaintiffs from this action because their claims fail as a matter of law. In response to Defendants' Motion, Plaintiffs filed a request to continue Defendants' Motion for Summary Judgment under Federal Rule of Civil Procedure 56(d). In her Memorandum and Order dated February 2, 2016 available at http://is.gd/rtes8Wfrom Leagle.com, Judge Crites-Leoni granted Plaintiffs' request to continue Defendants' motion for summary judgment pursuant to Rule 56(d). Defendant's motion for summary judgment is stayed as to Defendants' defenses of exemption and good faith. Plaintiffs shall file their Response to Defendants' motion for summary judgment on March 15, 2016. Defendants shall file their Reply on March 29, 2016. The Court also held that Plaintiff Tyral Tinsley is designated as representative of the class. The parties shall confer and attempt to reach agreement with respect to a proposed form of class notice. The parties were directed to file a proposed notice, reflecting issues -- if any -- on which they are unable to reach agreement. The Court will grant Plaintiffs' request to stay Defendants' Motion for Summary Judgment as to Defendants' defense that Plaintiffs are exempt employees under the FLSA and as to Defendants' good faith defense. Although significant discovery has been conducted, the focus of the discovery has been on the issues related to collective and class actions. Indeed, the Court contemplated that discovery would be conducted in two stages when it issued the Initial Case Management Order (CMO), delineating dates for discovery related to collective and class certification only. The Court has yet to issue a CMO setting dates for the merits phase of the litigation. It is, therefore, reasonable that Plaintiff would seek additional discovery in order to properly respond to Defendants' argument regarding the central issue in this case of whether Plaintiffs are exempt employees under the FLSA. The Court said the resolution of individual opt-in Plaintiffs' claims based on exemption will also be stayed. Even if Plaintiffs' state law claims are duplicative of their FLSA claims, the state law claims do not interfere with or stand as an obstacle to the goals of the FLSA. The Court granted summary judgment in favor of Defendants as to Plaintiff Janet Cargill's claims. Summary judgment is denied as to the issue of preemption. The Court held that the filing of the Complaint did not toll the statute of limitations as to Ms. Cargill's FLSA claim. Rather, the statute of limitations, which is no longer than three years, continued to run until Ms. Cargill filed her opt-in notice. That notice was filed more than three years after Ms. Cargill resigned her employment. Plaintiffs have not argued that any inequitable circumstances prevented Ms. Cargill from filing her opt-in notice, which would support the application of equitable tolling. Thus, Ms. Cargill's FLSA claims are barred by the statute of limitations. The instant Complaint was filed more than two years after Ms. Cargill resigned her employment. The undisputed facts reveal that Ms. Cargill's FLSA claims and state law claims are barred by the relevant statutes of limitations. Thus, summary judgment will be granted in favor of Defendants as to Ms. Cargill's claims. Lara M. Owens, Esq. of Owens Law Firm, LLC and Michael A. Hodgson, Esq. of Employee and Labor Law Group of Kansas City, LLC serve as counsel for Plaintiff Tyral Tinsley Bradley M. Bakker, Esq. -- bbakker@armstrongteasdale.com -- and Robert A. Kaiser, Esq. -- rkaiser@armstrongteasdale.com -- of Armstrong Teasdale, LLP serve as counsel for Defendant Covenant Care Services, LLC CREDIT MANAGEMENT SERVICES: 2nd Class Certification Bid Granted --------------------------------------------------------------- Senior District Judge Joseph F. Bataillon granted Plaintiffs' second motion for class certification in the debt collection case, LAURA POWERS, on behalf of herself and all others similarly situated; NICHOLE PALMER, JASON PALMER, Plaintiffs, v. CREDIT MANAGEMENT SERVICES, INC., DANA K. FRIES, TESSA HERMANSON, JESSICA L. V. PISKORSKI, BRADY W. KEITH, MICHAEL J. MORLEDGE, TESSA HERMANSON, Defendants, No. 8:11CV436, (D. Neb.). CMS sought recovery of three amounts: $24.51 for goods, services and/or labor of Physicians of Ob/Gyn -- Dr. Benjamin Ryder, stating the "reasonable value or agreed amount of these services is $24.51 and such amount is a liquidated amount"; $602.39 for goods, services and/or labor of Physicians of Ob/Gyn -- Dr. Mary Kratoska, again stating $602.39 was the reasonable value of the services and the amount was liquidated; and $229.48 for services provided by Physicians of Ob/Gyn -- Dr. Nancy Hicks, also stating the amount was reasonable and liquidated. Undisputed evidence shows that the Palmer and Powers collection complaints are examples of standard form pleading routinely filed by CMS. Plaintiffs allege that CMS filed standardized collection complaints that were misleading in that they included amounts for recovery of prejudgment interest and attorneys' fees that are not authorized under Nebraska law and included misrepresentations concerning presenting a demand for payment. The District Court earlier certified a class action comprised of debtors who had received standardized collection complaints and standardized discovery materials from CMS. On interlocutory appeal, the Eighth Circuit Court of Appeals reversed this court's earlier class certification order and remanded for proceedings consistent with its opinion. The Eighth Circuit further stated that the classes, as certified, would require individualized assessments of the purported class-members state court collection actions. The Appeals Court also suggested that the court should have ruled on then pending motions for summary judgment before certifying the class. The Appeals Court noted two unresolved issues of law, which the district court has now resolved, generally in favor of the Plaintiffs. The Eighth Circuit also made other findings that are no longer relevant in view of the changed posture of the case. The Plaintiffs now seek certification of two classes: a Section 25-1801 class and a Section 45-104 class, with subclasses created for the statute limitations period of one year under the Fair Debt Collection Practices Act (FDCPA) and of four years under the Nebraska Consumer Protection Act (NCPA). In his Memorandum and Order dated February 2, 2016 available at http://is.gd/RVhqjTfrom Leagle.com, Judge Bataillon granted Plaintiffs' second motion for class certification. A class is certified consisting of: "(i) All persons with addresses in Nebraska against whom Defendants filed a county court collection complaint in the form of Exhibit C after January 1, 2008, for purposes of the NCPA, and after December 18, 2010, for purposes of the FDCPA (ii) which sought to recover attorneys' fees, prejudgment interest, and costs, pursuant to Neb. Rev. Stat. Sec. 25-1801 (iii) where CMS did not personally provide the ninety-day presentation of the claim (iv) in an attempt to collect an alleged debt which, as shown by the nature of the alleged debt, Defendants' records, or the records of the original creditors, was primarily for personal, family, or household purposes. (The Neb. Rev. Stat. Section 25-1801 Class) (ii) All persons with addresses in Nebraska upon whom Defendants served a county court collection complaint in the form of Exhibit A after January 1, 2008, for purposes of the NCPA, and after December 18, 2010, for purposes of the FDCPA (ii) which sought to recover prejudgment interest pursuant to Neb. Rev. Stat. Section 45-104 (iii) in an attempt to collect an alleged debt which, as shown by the nature of the alleged debt, Defendants' records, or the records of the original creditors, was primarily for personal, family, or household purposes. (The Neb. Rev. Stat. Section 45-104 Class)" According to Judge Bataillon, the court has conducted a rigorous analysis to ensure that the Plaintiffs satisfied all Fed.R.Civ.P. Rule 23 requirements for certifying a class. The court has reviewed the materials submitted in favor of and against class- action certification, with an eye toward satisfying the concerns expressed by the Eighth Circuit. The court finds that the Plaintiff has shown that class action certification is appropriate. The second motion for class certification involves a proposed class of debtors who received complaints filed by CMS. Discovery materials are no longer at issue, the Court held. The common contention among the class is that complaints filed by CMS were false or misleading in several particulars, including that the complaints sought interest and attorney's fees that were not allowed by law, and the complaints misrepresented the nature of the debt so as to obtain those additional amounts. The Court finds that a class action is superior to other methods of adjudication of the controversy. Because of the ceiling on recovery and the difficulty of proving actual damages, an individual has little incentive to bring a solo action to vindicate his or her rights under the FDCPA. The Court also finds the Defendants' assertions that it will take unreasonable amounts of time and effort to determine who is in the class and the amount of actual damages for each class member are not supported by the record. Further, the Court is familiar with the experience and competence of proposed class counsel and finds proposed class counsel can adequately prosecute the interests of the class. Also, Plaintiff's claim is typical of the claims of other putative class members, all of whom received the same allegedly misleading complaint. The record also shows that similar procedures were followed in all of the cases and all of the in-house counsel could review all of the cases. In light of the consumer-protection goals of the FDCPA and NCPA, which permit, even encourage, consumers to act as private attorneys general to pursue FDCPA claims, the Court finds certifying a reasonably ascertainable FDCPA class for statutory or actual damages will serve the purposes of the Act, which is targeted at abusive debt collector activities. The Court directed Plaintiffs' counsel to arrange and initiate a conference call for the parties with United States Magistrate Judge Thomas D. Thalken to schedule a planning conference. O. Randolph Bragg, Esq. of Horwitz, Horwitz Law Firm Pamela A. Car, Esq. and William L. Reinbrecht, Esq. of Car, Reinbrecht Law Firm serve as counsel for Plaintiff Laura Powers Christopher R. Morris, Esq. -- cmorris@bassford.com -- Jessica L. Klander, Esq. -- jklander@bassford.com -- and Michael A. Klutho, Esq. -- mklutho@bassford.com -- of Bassford, Remele Law Firm and John M. Guthery, Jr., Esq. of Perry, Guthery Law Firm serve as counsel for Defendant Credit Management Services, Inc. CSRA INC: Parties in "Strauch" Case Exploring Settlement -------------------------------------------------------- CSRA Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on February 16, 2016, for the quarter ended January 1, 2016, that the parties in the case, Strauch et al. Fair Labor Standards Act Class Action, have been conducting discussions through a mediator to explore potential settlement scenarios. On July 1, 2014, plaintiffs filed Strauch and Colby v. Computer Sciences Corporation in the U.S. District Court for the District of Connecticut, a putative nationwide class action alleging that CSC violated provisions of the Fair Labor Standards Act ("FLSA") with respect to system administrators who worked for CSC at any time from June 1, 2011 to the present. Plaintiffs claim that CSC improperly classified its system administrators as exempt from the FLSA and that CSC, therefore, owes them overtime wages and associated relief available under the FLSA and various statutes, including the Connecticut Minimum Wage Act, the California Unfair Competition Law, California Labor Code, California Wage Order No. 4-2001, and the California Private Attorneys General Act, CSC's Motion to Transfer Venue was denied in February 2015. On September 28, 2015, plaintiffs filed an amended complaint, which added claims under Missouri and North Carolina wage and hour laws. The relief sought by Plaintiffs includes unpaid overtime compensation, liquidated damages, pre- and post-judgment interest, damages in the amount of twice the unpaid overtime wages due, and civil penalties. If a liability is ultimately incurred as a result of these claims, CSRA would pay a portion to CSC pursuant to an indemnity obligation. CSC and CSRA both maintain the position that system administrators have the job duties, responsibilities, and salaries of exempt employees and are properly classified as exempt from overtime compensation requirements. CSC's position is that its system administrators have the job duties, responsibilities, and salaries of exempt employees and are properly classified as exempt from overtime compensation requirements. On June 9, 2015, the Court entered an order granting the plaintiffs' motion for conditional certification under the FLSA of a class of system administrators. The conditionally certified FLSA and putative state classes include approximately 1,285 system administrators, of whom 407 are employed by CSRA and the remainder are employed by CSC. Courts typically undertake a two-stage review in determining whether a suit may proceed as a class action under the FLSA. In its order, the Court noted that, as a first step, the Court examines pleadings and affidavits, and if it finds that proposed class members are similarly situated, the class is conditionally certified. Potential class members are then notified and given an opportunity to opt-in to the action. The second step of the class certification analysis occurs upon completion of discovery. At that point, the Court will examine all evidence then in the record to determine whether there is a sufficient basis to conclude that the proposed class members are similarly situated. If it is determined that they are, the case will proceed to trial; if it is determined they are not, the class is decertified and only the individual claims of the purported class representatives proceed. CSRA's position in this litigation continues to be that the employees identified as belonging to the conditional class were paid in accordance with the FLSA and applicable state laws. The parties have been conducting discussions through a mediator to explore potential settlement scenarios. The next stage in the litigation will be a motion for class certification, which is currently due from plaintiffs in May 2016. CSRA Inc. ("CSRA") is a provider of IT services to the U.S. federal government. CSRA delivers IT, mission, and operations- related services across the U.S. federal government to the Department of Defense ("DoD"), the Intelligence Community and homeland security, civil and healthcare agencies, as well as to certain state and local government agencies through two segments: (1) Defense and Intelligence and (2) Civil. CVS PHARMACY: Attempts to Stop Disbarred Lawyer to File Suits ------------------------------------------------------------- Amanda Bronstad, writing for Law.com, reports that a disbarred lawyer who has made it his mission to promote American- manufactured products is facing opposition that would block him from filing lawsuits in California. Joel Joseph, chairman of the Made in the USA Foundation in Los Angeles who was disbarred in 2011 in Maryland, has continued to file suits as a pro se plaintiff against companies like Costco Wholesale Corp., Trader Joe's Co. and CVS Pharmacy Inc. over the labeling of ground meat and generic pharmaceuticals. The cases have been filed in California, where Joseph has used a private attorney general action under the state's consumer laws to assert the products were mislabeled in violation of the Tariff Act or other federal laws. On March 1, Mr. Joseph goes to court in Santa Monica, California, to defend his case against CVS, which has filed a motion to declare him a vexatious litigant. In the motion, CVS attorney Trenton Norris, a partner in Arnold & Porter's San Francisco office, cited 10 matters in the past seven years that Joseph lost, plus "repeated frivolous, misleading, and dilatory tactics" in other cases. He declined to comment about the motion. If Los Angeles Superior Court Judge Nancy Newman grants the motion, she could dismiss the CVS case and Joseph would be unable to file future suits in California without getting the approval of the presiding judge of that court. In another case, a group of retailers and distributors of cashews have turned up the heat on Joseph, claiming in motions to dismiss that his crop of lawsuits should be stopped due to a lack of standing. Mr. Joseph declined to comment on the vexatious-litigant motion, but in court papers denied the assertion, noting in an opposition paper he filed on Jan. 22 that many of the matters cited by CVS were petitions related to his law license. In that filing he wrote, "Plaintiff has never engaged in vexatious litigation and has never done anything dishonest. I have never brought a frivolous case." A 1973 graduate of Georgetown University Law Center, he was disbarred in Maryland after that state's high court, the Court of Appeals, found that he "lacked candor" when misrepresenting his residence in an application to appear in court in California . He was "suspended indefinitely" in Ohio the following year, and the District of Columbia Bar disbarred him in 2015. Among his recent cases, Mr. Joseph voluntarily dismissed a lawsuit against Jennie-O and Trader Joe's. He said that he settled with Trader Joe's, which "changed their labeling." Mr. Joseph has filed "a whole bunch of cases" since his disbarment, said Jacob Harper -- jharper@troygould.com -- of Los Angeles-based TroyGould, which represents Ralphs Grocery Co., Nature's Best Distribution LLC and Sun Ridge Farms Inc. in the cashew case. Citing a 2014 ruling dismissing a case that Joseph brought against Costco, they are hoping to prevent him from bringing the same claims again. "We want to make it so the buck stops here," Harper said. A lawyer for a fourth defendant, a division of The Kraft Heinz Co., which filed a separate dismissal motion, did not respond to a request for comment. U.S. District Judge Andr‚ Birotte took the motions in the cashew case under submission on Feb. 17. In general, the defendants have argued that Joseph is not permitted to bring the actions because he has suffered no injuries. Joseph has cited the California Supreme Court's 2011 decision in Kwikset Corp. v. Superior Court (Benson), which found that consumers could sue over misleading labels even when they didn't suffer from economic damages or the product wasn't defective. "We brought these cases to move some of the principles of the foundation forward," Mr. Joseph said. "Basically, we're trying to get companies to provide country-of-origin information that's required by law." DA DI CHINESE: "Liu" Suite Seeks Unpaid Wages and Overtime Pay -------------------------------------------------------------- Zhen Guang Liu, individually and on behalf all other employees similarly situated, the Plaintiffs v. Da Di Chinese Food, Inc. d/b/a Kim Fai Chinese Food, Siu Ying Chen, John Li, Pun Chan, John Doe and Jane Doe#1-10, Defendants, Case No. 1:16-cv-00937 (E.D.N.Y., February 24, 2016), seeks payment of minimum wage, and overtime compensation for all hours worked over 40 each workweek. Under the Fair Labor Standards Act, the Plaintiff is entitled to payment of minimum wage, payment for overtime compensation worked in excess of 40 per week, and entitled also to a credit for expenses for tools of trade, the complaint asserts. The Plaintiff is represented by: Jian Hang, Esq. HANG & ASSOCIATES, PLLC 136-18 39th Ave., Suite 1003 Flushing, NY 11354 Telephone: 718-353-8588 Email: jhang@hanglaw.com Da Di Chinese Food, Inc. owns and operates Kim Fai Chinese Food located at 1628 Utica Ave., Brooklyn, NY 11234. DAIICHI SANKYO: Gender Bias Case Settlement Gets Final Approval --------------------------------------------------------------- Sanford Heisler Kimpel, LLP, a national civil rights law firm, continued its battle against Big Pharma, securing an $8.2 million monetary settlement and impressive programmatic reforms for female sales professionals at Daiichi Sankyo, the Japanese-based, multinational drug company. The nearly 1,600 female plaintiffs were represented in the class action by the law firm's Chairman David Sanford, San Francisco Managing Partner Felicia Medina and Associates Yonina Alexander and Danielle Fuschetti. According to the Complaint, Daiichi Sankyo historically paid its female sales employees less than male employees for doing the same work; promoted or advanced female sales employees at slower rates than male sales employees and treated pregnant employees and working mothers of young children adversely compared to non- pregnant employees, male employees, or non-caregivers. Wellens et al v. Daiichi Sankyo, Inc. was the first gender discrimination collective action ever certified in the 9th Circuit under the Federal Equal Pay Act. Plaintiff Sara Wellens and five other named plaintiffs filed the Complaint on behalf of female sales professionals at the Company in 2013. "This settlement represents far more than monetary compensation for the women at Daiichi Sanyko who experienced gender discrimination," said David Sanford. "This outcome also provides an excellent example of how women who don't just lean in, but push back, can achieve far-reaching changes that improve the conditions of employment for future generations of women. Sanford Heisler Kimpel will continue to fight for the elimination of gender discrimination in all industries, including the global pharmaceutical industry." Sanford Heisler also enjoyed success against Forest Pharmaceuticals, whose female employees reported similar workplace discrimination based on their gender and pregnancy status. The Court recently granted Equal Pay Act certification. The firm also has a gender discrimination class matter pending against Merck. The Daiichi settlement will result in major changes in Daiichi Sankyo's treatment of the company's female sales professionals. The company agreed to devote a proportion of the settlement funds to providing ongoing training to managers about preventing gender discrimination, harassment and retaliatory behavior. In addition, Daiichi Sankyo agreed to revise its merit increase pay policies that disadvantaged employees who took medical leaves of absence, including maternity leave. It will also hire an expert HR consultant recommended by Plaintiffs' counsel to revamp its policies to ensure that women, working mothers, and pregnant sales employees are provided with more equal employment opportunities and necessary accommodations. Sanford Heisler will monitor Daiichi Sankyo's progress for two years. "We always strive to include in settlements training and policy changes to ensure the end of workplace discrimination," said Felicia Medina. "We are proud to help generate equal pay, fair promotion opportunities, and a safe and fair environment for pregnant employees." About Sanford Heisler Kimpel, LLP Sanford Heisler Kimpel, LLP -- http://www.sanfordheisler.com-- is a public interest class-action litigation law firm with offices in New York, Washington, D.C., and San Francisco. The Firm specializes in civil rights and general public interest cases, representing plaintiffs with employment discrimination, labor and wage violations, predatory lending, whistleblower, consumer fraud, and other claims. Along with a focus on class actions, the firm also represents individuals and has achieved particular success in the representation of executives in employment disputes. DELTA FUNDING: "Smith" Foreclosure Suit Dismissed ------------------------------------------------- District Judge George Caram Steeh granted Defendants' motions to dismiss in the case, FELICIA SMITH, individually and as the Personal Representative of the Estate of Rena Johnson, a/k/a Renee Johnson, dec'd & on behalf of all other persons similarly situated, Plaintiff, v. DELTA FUNDING CORP., WELLS FARGO BANK, N.A., successor by merger to Wells Fargo Bank Minnesota, N.A., as Trustee f/k/a Northwest Bank Minnesota, N.A., as. Trustee for the registered holders of Renaissance Home Equity Loan Asset-Backed Certificates, Series 2004-1, Advantage Investors Mortgage Corporation, WAYNE COUNTY, MI SHERIFF and WAYNE COUNTY, MI REGISTER OF DEEDS, Defendants, Case No. 15-CV-13387, (E.D. Mich.) Plaintiff Felicia Smith filed a three-count complaint in Wayne County Circuit Court, phrased as follows: Count I -- Complaint To Set Aside Real Estate Mortgage Foreclosure Sale Against Defendants Wells Fargo, Wayne County Sheriff & Wayne County Register Of Deeds, Only; Count II -- Individual & Class Action Complaint For Damages For Violating The Federal Fair Housing Act, The Federal Equal Credit Opportunity Act, The Michigan Consumer Mortgage Protection Act And The Michigan Mortgage Brokers, Lenders, And Servicers Licensing Act Against Defendants Delta Funding, Advantage & Wells Fargo, Only and Count III -- Complaint For Modification Of Real Estate Mortgage Against Defendant Wells Fargo, Only. Defendant Wells Fargo Bank, N.A., successor by merger to Wells Fargo Bank Minnesota, N.A., as Trustee f/k/a Northwest Bank Minnesota, N.A., as Trustee for the registered holders of Renaissance Home Equity Loan Asset-Backed Certificates, Series 2004-1, removed the action to the present court. The Trustee and the Wayne County Defendants filed separate motions to dismiss. In his Order dated February 11, 2016 available at http://is.gd/HRGynMfrom Leagle.com, Judge Steeh said Plaintiff has not established, let alone alleged, that she would have been able to pay off this entire balance if her name was included in the notices. That she may have been able to make monthly payments is irrelevant given that the entirety of the indebtedness was accelerated. An additional reason for dismissal of Count I against the Wayne County Defendants is that the only allegation in the complaint against them is that the Wayne County Register of Deeds recorded the sheriff's deed after the foreclosure sale. This allegation fails to state a claim upon which relief can be granted against the Wayne County Defendants. The Wayne County Defendants do not claim any interest to the property, and, as such, are not proper Defendants in seeking to set aside a foreclosure sale. The Court also said Plaintiff's complaint fails to plead fraud with particularity, pursuant to Federal Rule of Civil Procedure 9(b), against any of the Defendants. In addition, there are no allegations that Plaintiff was diligent in attempting to discover the alleged discriminatory conduct. In Count III, Plaintiff asks the court for a modification of the mortgage that was in place prior to the foreclosure sale. Plaintiff makes clear that Count III is not a freestanding claim. However, Judge Steeh said, Plaintiff is not entitled to the remedy she seeks, i.e. a modification of the mortgage. Herman J. Anderson, Esq. serves as counsel for Plaintiff Felicia Smith, Individually and as the personal Representative of the Estate of Rena Johnson, a/k/a Renee Johnson, dec'd & on behalf of all other similarly persons situated Robert H. Ellis, Esq. -- rellis@dykema.com -- Thomas M. Schehr, Esq. -- tschehr@dykema.com -- and Thomas H. Trapnell, Esq. -- ttrapnell@dykema.com -- of Dykema Gossett PLLC serve as counsel for Defendant Wells Fargo Bank, N.A. DIRECTV: Outlines Details of MLB "Extra Innings" Settlement ----------------------------------------------------------- Pete Dougherty, writing for mySA, reports that in a letter sent to subscribers, DirecTV has outlined details of a settlement of a class-action lawsuit brought against with Major League Baseball and its "Extra Innings" package. The result is that DirecTV and Comcast customers will receive a 12.5 percent reduction in the "Extra Innings" price from 2015 for both the 2016 and 2017 seasons. The full-season cost of MLB.TV will be reduced from $129.99 to $109.99, with a guarantee of a maximum increase of no more than 3 percent (or the federal Cost of Living Adjustment, if higher) per year through 2020. The DirecTV letter explained that the lawsuit, brought forward by consumers who purchased MLB.TV or purchased MLB Extra Innings from Comcast or DIRECTV between May 9, 2008, and Jan. 18, 2016, "alleges that the territorial allocation of broadcast rights within MLB assigned to each of its member clubs and thereafter sold to regional sports networks violated federal antitrust laws, provides out-of-market consumers with fewer choices, and inflates prices charged to view broadcasts of live professional baseball games. "Defendants dispute Plaintiffs' factual and legal claims and deny any wrongdoing and liability, as well as any adverse effect on consumer choices and that prices charged have been inflated. The parties have concluded that it is in their best interests to settle the litigation to avoid the expense, inconvenience, and uncertainty of litigation." As a result of the settlement, MLB will now: -- offer single-team packages for out-of-market games through MLB.TV for $84.99 for a full season in 2016. Comcast and DirecTV are not obligated to offer such packages. -- allow MLB.TV purchasers who subscribe to Comcast, DirecTV or certain other cable, satellite or other providers to purchase a "Follow Your Team" option that will allow them to receive telecasts of their favorite out-of-market team's broadcaster without any blackouts, so long as the purchaser receives the in-market team's programming through his or her television service. This product will cost no more than $10 more than a standard MLB.TV package. -- seek to reach agreements with Comcast, Root Sports and Fox regional sports networks to offer live in-market streaming of their telecasts. -- offer live streaming of any in-market team's telecasts produced by Comcast, Root Sports or Fox regional sports networks to any customer who is unable to obtain multi-channel video provider distributor service or virtual multi-channel video provider distributor service at his or her residence. EMC CORP: "Booth Family" Suit Challenges Sale Agreement with Dell --------------------------------------------------------------- Booth Family Trust, on behalf of itself and all others similarly situated, Plaintiff v. Joseph M. Tucci, William D. Green, Jose E. Almeida, Michael W. Brown, Donald J. Carty. Randolph L. Cowen, James S. Distasio, John R. Egan, Edmund F. Kelly. Judith A. Miscik, Paul Sagan, Laura J. Sen, Dell Inc., Denali Holding, Inc. and Universal Acquisition Co., Case No. 1:16-cv-10114, (D. Mass., January 26, 2016), seeks to enjoin Defendants from taking any steps to consummate the sale of EMC Corp. to Dell, Inc., or, in the event the merger is consummated, to recover damages resulting from the Defendants' violation of their fiduciary duties of loyalty, good faith, due care and full and fair disclosure. The EMC Board had agreed to sell EMC to Dell who will acquire the company at $24.05 per share against the current $33.15 per share. EMC, a Massachusetts corporation, is a multinational corporation that offers data storage, information security, virtualization, analytics, cloud computing and other products and services that enable businesses to store, manage, protect, and analyze data. Joseph M. Tucci is EMC's Chairman of the Board. William D. Green is EMC's Lead Independent Director. Jose E. Almeida, Michael W. Brown, Donald J. Carty, Randolph L. Cowen, James S. Distasio, John R. Egan, Edmund F. Kelly, Judith A. Miscik, Paul Sagan and Laura J. Sen are the members the EMC Board of Directors. Dell, Inc. is a Delaware corporation with principal executive offices at One Dell Way, Round Rock, Texas. It provides computer and other related products and specializes in desktop, laptops, tablets, mobile phones, monitors, projectors, electronic accessories, printers, servers, storage, networking, and other equipment. Denali Holding Inc. and Universal Acquisition Co. are Delaware corporations tasked with facilitating the merger. The Plaintiff is an owner of EMC common stock. The Plaintiff is represented by: Mitchell J. Matorin, Esq. MATORIN LAW OFFICE, LLC 18 Grove Street, Suite 5 Wellesley, MA 02482 Tel: (781) 453-0100 Email: mmatorin@matorinlaw.com - and - Richard A. Acocelli Michael A. Rogovin Kelly C. Keenan WEISSLAW LLP 1500 Broadway, 16th Floor New York, NY 10036 Tel: (212) 682-3025 ETHICON: Jury Hears Closing Arguments in Pelvic Mesh Suit --------------------------------------------------------- Max Mitchell, writing for The Legal Intelligencer, reports that during closing arguments in the latest pelvic mesh trial in Philadelphia, plaintiffs attorney Shanin Specter -- Shanin.Specter@KlineSpecter.com -- called the conduct of the defendant company heads "beyond reckless," saying it made him want to throw his lectern out the courtroom window. He asked the jurors to look beyond his client's injuries and consider all the potential harm the device may have caused others, before he asked the jury to send a message to the defendant, Johnson & Johnson subsidiary Ethicon. "I could feel the hair standing up on my neck," Mr. Specter recently said about going over the evidence during his closing in Carlino v. Ethicon. That jury came back with a $13.5 million verdict, including $10 million in punitive damages. Roughly two months before that verdict, when Thomas R. Kline, who, along with Mr. Specter, heads Kline & Specter, had made his closing argument in the same courtroom before the same judge in the latest Risperdal-related trial, he similarly assailed a Johnson & Johnson subsidiary, Janssen, over its conduct. But Mr. Kline was prohibited from asking the jury to consider other potential victims, or to send the company a message, because the judge supervising the Risperdal mass tort previously barred the plaintiffs from seeking punitive damages in those cases. "I was only allowed to ask for compensation," Kline said. The jury in that case, Stange v. Janssen, returned a $500,000 plaintiffs award. According to attorneys, the punitive damages issue in the two mass tort programs is one of the key factors that have led the pelvic mesh litigation to two large plaintiffs' victories, while the Risperdal litigation has resulted in more of a mixed bag for plaintiffs. "An early ruling that takes punitive damages out of the case is a very large step for the court and the litigants, because it removes a significant risk for the defendant, especially in the face of conduct which is egregious," Mr. Kline said. Both pelvic mesh cases have resulted in more than eight-figure awards. While the Carlino case resulted in $13.5 million, the first case, Hammons v. Ethicon, ended with a $12.5 million verdict, including $5.5 million in compensatory damages and $7 million in punitives. Before the $500,000 award in Stange, the Risperdal cases resulted in a $2.5 million and a $1.75 million award, as well as a settlement. A jury also handed up a defense verdict in the second Risperdal case to go to trial, although it found Janssen negligent in failing to warn about the potential risks of Risperdal. Cozen O'Connor attorney James H. Heller -- jimheller@cozen.com -- said a ruling on the availability of punitive damages changes the standard for introducing prior-incidents evidence. Although it's not supposed to, Mr. Heller said, this can potentially lead juries to increase awards when considering liability and compensatory damages. "The thought and fear is that the jury will instead use it to decide liability," Mr. Heller said. "Pain and suffering is subjective, and so being that it's so subjective, the jury has got a lot of leeway. If they get angry for lack of evidence on the defense side, or the amount of evidence of misconduct on the other side, the way they can show it is to use that subjectivity to increase the amount of the verdict." He said the significant split between the $3.5 million in compensatory damages and the $10 million in punitives in the Carlino case indicates that the jury got mad at Ethicon. EXPRESS SCRIPTS: Class Cert. Bid in "Beeman" Case Not Yet Briefed ----------------------------------------------------------------- Express Scripts Holding Company said in its Form 10-K Report filed with the Securities and Exchange Commission on February 16, 2016, for the fiscal year ended December 31, 2015, that Plaintiffs' motion for class certification has not been briefed to date in the case, Jerry Beeman, et al. v. Caremark, et al. (United States District Court for the Central District of California, Case No.021327) (filed December 2002). A complaint was filed against Express Scripts, Inc. -- ESI -- NextRX LLC f/k/a Anthem Prescription Management LLC, Medco Health Solutions, Inc. and several other pharmacy benefit management companies by several California pharmacies as a putative class action, alleging rights to sue as a private attorney general under California law. Plaintiffs allege ESI and the other defendants failed to comply with statutory obligations under California Civil Code Section 2527 to provide California clients with the results of a bi-annual survey of retail drug prices, and seek money damages. In July 2004, the case was dismissed with prejudice due to lack of standing. In June 2006, the United States Court of Appeals for the Ninth Circuit reversed the district court's opinion on standing and remanded the case. The district court's denial of defendants' motion to dismiss on first amendment constitutionality grounds was appealed to the Ninth Circuit. Plaintiffs have also filed a motion for class certification, but that motion has not been briefed to date. In July 2011, the Ninth Circuit affirmed the district court's denial of defendants' motion to dismiss. In June 2012, the Ninth Circuit en banc panel issued a decision certifying the question of constitutionality of California Civil Code Section 2527 to the California Supreme Court, requesting consideration of the issue and a ruling. In December 2013, the California Supreme Court held that California Civil Code Section 2527 does not infringe upon state constitutional free speech protections. In January 2014, the Ninth Circuit en banc panel issued a ruling vacating the prior panel opinion and remanded the case to the original Ninth Circuit three-judge panel to either consider the federal constitutional issues or remand the case to the district court. In March 2014, the Ninth Circuit entered an order lifting the stay and remanded the case to the district court for further proceedings. Defendants' objections based on plaintiffs' lack of standing and the unconstitutionality of the California law due to defendants' first amendment rights have been rejected by the courts and are not subject to further appeals. Express Scripts is the largest stand-alone pharmacy benefit management ("PBM") company in the United States, offering a full range of services to our clients, which include managed care organizations, health insurers, third-party administrators, employers, union-sponsored benefit plans, workers' compensation plans, government health programs, providers, clinics, hospitals and others. EXPRESS SCRIPTS: Motion for Decertify Class in "Brady" Pending -------------------------------------------------------------- Express Scripts Holding Company said in its Form 10-K Report filed with the Securities and Exchange Commission on February 16, 2016, for the fiscal year ended December 31, 2015, that ESI's motion to decertify the class in the Brady Enterprises case is pending. The following two remaining cases were transferred to the United States District Court for the Eastern District of Pennsylvania before the Judicial Panel on Multi-District Litigation -- In re: PBM Antitrust Litigation -- in August 2006: (i) Brady Enterprises, Inc., et al. v. Medco Health Solutions, Inc. (filed in August 2013 in the United States District Court for the Eastern District of Pennsylvania); and (ii) North Jackson Pharmacy, Inc., et al. v. Medco Health Solutions, Inc., et al. (United States District Court for the Northern District of Alabama), consolidated with North Jackson Pharmacy, Inc., et al. v. Express Scripts, Inc., et al. (United States District Court for the Northern District of Alabama) (filed in October 2003). Following oral arguments on ESI's motion to decertify the class in 2007, the case remained dormant until April 2011, when it was reassigned to a new judge who ordered supplemental briefing. Oral argument of all the class certification motions was heard in January 2012, and the court took ESI's motion under submission. The Brady Enterprises case was filed against Merck & Co., Inc. ("Merck") and Medco. Plaintiffs moved for class certification to represent a national class of retail pharmacies and allege that Medco conspired with, acted as the common agent for, and used the combined bargaining power of plan sponsors to restrain competition in the market for the dispensing and sale of prescription drugs. Plaintiffs allege that, through conspiracy, Medco has engaged in various forms of anticompetitive conduct including, among other things, setting artificially low pharmacy reimbursement rates. Plaintiffs assert claims for violation of the Sherman Antitrust Act and seek treble damages and injunctive relief. Currently, ESI's motion to decertify the class in the Brady Enterprises case is pending since oral arguments were held in January 2012. The North Jackson Pharmacy case is a class action against ESI and Medco on behalf of independent pharmacies within the United States. The complaint alleges that certain of ESI's and Medco's business practices violate the Sherman Antitrust Act. Plaintiffs seek unspecified monetary damages (including treble damages) and injunctive relief. Plaintiffs' motion for class certification against ESI and Medco was granted in March 2006. Express Scripts is the largest stand-alone pharmacy benefit management ("PBM") company in the United States, offering a full range of services to our clients, which include managed care organizations, health insurers, third-party administrators, employers, union-sponsored benefit plans, workers' compensation plans, government health programs, providers, clinics, hospitals and others. FACEBOOK INC: Judge Dismisses Biometrics Class Action ----------------------------------------------------- Emma Gallimore, writing for Legal Newsline, reports that a federal judge has dismissed a class action lawsuit against Facebook after the California-based social media site claimed there was a lack of personal jurisdiction in Illinois. The plaintiff in the case, Fredrick William Gullen, filed the complaint alleging violations of the Illinois Biometric Information Privacy Act. Mr. Gullen is not a Facebook user, but he alleged that his image was uploaded to the site and that his biometric identifiers and biometric information was collected, stored and used by Facebook without his consent. The Illinois Biometric Information Privacy Act, implemented in 2008, regulates the collection, use, and storage of biometric identifiers and biometric information such as scans of face or hand geometry. The act specifically excludes photographs, demographic information, and physical descriptions. The first known biometrics case in Illinois was also a class action against an online company. Shutterfly, a company that allows users to upload and print photos or use them to personalize items, moved to have the case against it dismissed on the grounds that the Biometric Information Privacy Act does not apply to photographs, but the judge disagreed and allowed the case to move forward. On Feb. 1, Shutterfly moved for reconsideration or, as an alternative, that the case be certified for an interlocutory appeal. This would allow Shutterfly to appeal the decision immediately rather than wait for a final court ruling. In the Facebook case, no ruling has been made on whether the information on Facebook counts as biometric identifiers and biometric information under the Illinois Biometric Information Privacy Act. Instead, the judge agreed with Facebook that the case could not be tried in Illinois. "They have to show personal jurisdiction in order to sue someone in a particular jurisdiction," said Linn Freedman, partner at Robinson & Cole. "In this particular case, the judge found that Facebook was not targeting specifically Illinois residents. He also found that they did not have minimum contact with Illinois." Facebook is a California-based company that operates a mobile application and website used by people across the country and around the world. The people of Illinois, while certainly included in that subset, are not sought out specifically by Facebook to join its site. However, the company is currently facing a proposed class action in California relating to some of the same questions. "The legal argument of personal jurisdiction will not be applicable in California since that's where Facebook is located," Ms. Freedman said. How the California class action will play out remains to be seen. California does not yet have a clear policy on biometric privacy. A bill pending in the state's legislature would extend the scope of the data security law to include biometric data as well as geophysical location, but it has not yet become law. The question of privacy in regards to biometric information is one that has garnered increasing attention in recent months. On Feb. 4, the Biomterics Institute, an independent research and analysis organization, released revised guidelines comprising 16 privacy principles for companies that gather and use biometrics data. FEDCHOICE FEDERAL: "Horton" Suit Alleges Breach of Contract ----------------------------------------------------------- Sheila Horton, and all others similarly-situated v. FedChoice Federal Credit Union and Does 1 through 10, Case No. 2:16-cv-00318 (E.D. Pa., January 26, 2016), seeks monetary damages, restitution and injunctive relief arising from the Defendants' breach of contract with customers for implementing an overdraft fee program. The Defendant is a Maryland based credit union with approximately $350 million in assets that provides banking services to over 25,000 members through branches in Pennsylvania, Washington D.C., New Jersey, Delaware, Maryland, Virginia and West Virginia. The Plaintiff is represented by: Joseph G. Sauder, Esq. Matthew D. Schelkopf, Esq. Alison G. Gushue, Esq. CHIMICLES & TIKELLIS LLP 361 West Lancaster Avenue Haverford, PA 19041 Tel: (610) 642-8500 Fax: (610) 649-3633 E-mail: JGS@chimicles.com MDS@chimicles.com AGG@chimicles.com - and - Richard D. McCune, Esq. MCCUNEWRIGHT LLP 2068 Orange Tree Lane, Suite 216 Redlands, CA 92374 Tel: (909) 557-1250 Fax: (909) 557-1275 E-mail: rdm@mccunewright.com - and - Taras Kick, Esq. THE KICK LAW FIRM, APC 201 Wilshire Boulevard Santa Monica, CA 90401 Tel: (310) 395-2988 Fax: (310) 395-2088 E-mail: taras@kicklawfirm.com FLINT, MI: Water Crisis Lawsuits to Cost Taxpayers Millions ----------------------------------------------------------- Jennifer Dixon, writing for Detroit Free Press, reports that Flint's water crisis has unleashed a tsunami of lawsuits that could cost Michigan taxpayers hundreds of millions of dollars in damages. "The only deep pocket in the vicinity of Flint is the State of Michigan," said Wayne State University law professor Peter Henning, a former federal prosecutor. "This could be a tax liability on the citizens of Michigan. This is the worst nightmare when a bureaucracy goes completely off the rails and makes decisions that cause widespread harm." At least a dozen lawsuits have been filed in local, state and federal courts on behalf of Flint residents who drank lead-tainted water for nearly two years. The complaints name a long list of state and local agencies and officials, from Gov. Rick Snyder to Flint city employees. Some of the suits seek to hold Snyder and others personally liable for damages. They could also face criminal charges as state and federal prosecutors investigate how Flint's water was poisoned. Lawyers in two cases say they're seeking multimillion-dollar awards. One seeks $100 million from a Flint hospital for victims of Legionnaires' disease and the other seeks at least $500 million from an engineering company Flint hired to put its water treatment plant into operation using Flint River water. The suit, which states the company was aware the water would be dangerous without proper anticorrosive treatment, seeks damages for diminished property values. The remaining suits seek everything from replacement of the pipes that leached lead into Flint's water supply to long-term medical monitoring and health care, a court-ordered monitor to oversee the city's water operations, cancellation of all water bills since April 2014, when lawyers argue Flint's water supply became unfit to drink, and punitive damages against the state and other defendants. Noah Hall, a Wayne State law professor who specializes in environmental law and is following the litigation closely, said the best solution for the state would be to do what BP did after the Deepwater Horizon oil rig exploded in 2010: finance a victims' compensation fund. The largest oil spill in U.S. waters, the disaster in the Gulf of Mexico killed 11 crew members, leaked millions of barrels of crude, and coated hundreds of miles of shoreline with oil. Like the businesses and people hurt by the oil spill, Mr. Hall said Flint residents need help, too: Pay them damages, monitor their health, cover their medical expenses. From the state's perspective, a fund could have the added benefit of keeping damaging revelations from coming to light in a lengthy legal fight, he said. Washington-based attorney Kenneth Feinberg designed the BP fund and during the 18 months he managed it, it paid out $6.5 billion and processed $1.2 million in claims for economic damages from businesses and individuals. Mr. Feinberg also administered the victims compensation fund Congress created after the Sept. 11, 2001, terrorist attacks. According to Rich Henke, law professor at Western Michigan University's Cooley Law School, 98% of those who were eligible joined the fund and were compensated. Awards in death cases ranged from $250,000 to $7.1 million, while personal-injury claims ranged from $500 to $8.6 million. The original fund, which closed in 2004, paid more than $7 billion to survivors of the dead and those who were injured in the attacks or rescue efforts immediately after. A second, $2.77-billion fund was opened in 2011 to help additional individuals who were injured or died as a result of the attacks. "The state is better off accepting responsibility and moving the focus to how are we going to fix this, compensate the victims and prevent future damage from happening," Mr. Hall said. "The worst strategy is for the state to fight -- the state shouldn't be spending its resources fighting residents who are seeking compensation for the harm they suffered. It should facilitate them getting compensation." Mr. Hall said victims' funds may not prevent all lawsuits but could persuade some victims to drop suits, allowing them to avoid lengthy litigation and be compensated more quickly. "These are not frivolous lawsuits, they are well-plead suits," Hall said. "If the allegations in these lawsuits can be proved, the defendants are going to be facing a world of liability." Flint switched from water drawn from Lake Huron by the Detroit Water and Sewerage Department to water drawn from the Flint River in 2014 while it waited for the new Karegnondi Water Authority in Genesee County to come online later this year. The switch, designed to save the city money, was done without adding corrosion controls to the water, allowing lead to leach into residents' tap water. The Michigan Department of Environmental Quality has said it made a mistake: It believed federal rules allowed the city to complete two rounds of testing for lead more than a year before deciding on the need for corrosion controls. The U.S. Environmental Protection Agency is also under fire for waiting months to get a legal opinion on whether corrosion control was required, even when it was aware of high lead levels in the city's water. The crisis has been a magnet for high-profile personal-injury lawyers such as Geoffrey Fieger and Ven Johnson, and prominent civil rights lawyers Bill Goodman and Julie Hurwitz, whose team includes Erin Brockovich, the consumer advocate who became famous when Julia Roberts portrayed her in a movie about her legal fight against a California utility over contaminated water. The lawsuits claim Flint's water damaged property values and household appliances; caused a variety of physical ailments, including rashes and hair loss, and psychological problems such as depression and chronic anxiety. Some of the lawsuits seek to hold Gov. Snyder and other state and local officials personally liable for damages. While government officials typically have immunity from damages, there are exceptions, said Royal Oak lawyer Michael Pitt, who is working with Goodman and Hurwitz on cases filed in federal, state and Genesee County courts. In each case, Mr. Pitt and his team, which includes more than 50 law students from Wayne State, University of Michigan and University of Detroit Mercy, cite exceptions to governmental immunity laws to hold state and local officials personally responsible. Mr. Pitt said some government officials can be sued in federal and state courts for damages if there's been a constitutional violation. In his federal case, for example, the suit says state and local officials violated Flint residents' rights under the U.S. Constitution in that they deprived them of life, liberty and property when they took from plaintiffs -- without due process of law -- their "safe drinking water and replaced it with what they knew to be a highly toxic alternative solely for fiscal purposes." Mr. Pitt's suit against DEQ and City of Flint employees in Genesee County Circuit Court says they are liable because they were grossly negligent. Mr. Pitt said employees could be considered grossly negligent if they failed to require corrosion controls when Flint switched water sources or if they knew there were no corrosion controls in place and did nothing about it. A Snyder spokesman, Dave Murray, said on Feb. 19 that "it would be inappropriate for the governor's office to discuss pending litigation." Some of those named in the lawsuits could also face federal or state criminal charges as the FBI, the U.S. Attorney's Office in Detroit and Michigan Attorney General Bill Schuette are investigating. Mr. Henning said prosecutors could bring federal charges if someone was part of a cover-up, such as covering up lead sampling results, or made false statements to a federal agency such as the EPA. The state could charge state and local employees with misconduct in office, a common-law crime that focuses on an official's actions and decisions, Mr. Henning said. For example, state or local employees could be charged if they knew about lead in the water and failed to act, or if they authorized the switch to the Flint River water knowing the threat it posed without corrosion controls. "We don't know if the smoking gun will emerge," he said. One lawsuit does not seek monetary damages. The case filed in U.S. District Court by Concerned Pastors for Social Action, a group of Flint's religious leaders; Melissa Mays, a Flint mother; the American Civil Liberties Union of Michigan and the Natural Resources Defense Council asks the court instead to force the owners and operators of Flint's water system to comply with the Safe Drinking Water Act, said Dimple Chaudhary, senior attorney with the NRDC and lead litigator in the case. Ms. Chaudhary said the lawsuit seeks to get the system's operators to "treat the water to minimize the amount of lead leaching from its pipes; properly monitor for lead in household tap water by targeting homes at the highest risk for lead contamination, to notify residents of the results of tap water sampling conducted at their homes, and to report the water system's activities to monitor and control for lead to state and federal authorities." The suit also wants the lead service lines in Flint to be replaced. The city has approximately 33,000 service line connections, and at least 15,000 are lead service lines, according to the suit. Replacing those lines could cost as much as $60 million. As part of his recent budget proposal, Gov. Snyder is asking the Legislature to set aside $25 million to remove and replace pipes in Flint. And he's signed a bill that sets aside $500,000 to identify pipes that need replacing. The NRDC lawsuit also seeks medical and health remedies to address the impacts of lead exposure. "We think they're very reasonable requests given the magnitude of the harm that's been suffered here and given the nature of the violations," Ms. Chaudhary said. "What we're looking for here is a remedy that will help everybody in the community, and hopefully put other water systems on notice to clean up these practices." Mays, a mother of three sons and a plaintiff in that case and three others, said she hopes the lawsuits help her and other Flint residents replace household appliances damaged by corrosive water, including water heaters, dishwashers and washing machines; ensure lifelong health care and medical monitoring; and provide therapy, tutoring and other assistance. She also wants to see those responsible for the crisis held personally liable for damages. "We've had to lose so much of our lives because of the actions and inactions of those people. They were supposed to protect us and they haven't and they still haven't. Our suffering should stop and they should be held accountable in every possible way." She said she hopes that whatever money and help the lawsuits bring her family, "we can ensure the rest of our lives are not as miserable as we are now." FLOYD COUNTY, IN: Inmates' Abuse Suit Gets Class Action Status -------------------------------------------------------------- Matthew Glowicki, writing for Courier-Journal, reports that a U.S. District Court judge has granted class action status to a group of former inmates suing the Floyd County Jail alleging they were held in padded isolation cells in violation of their constitutional rights. The plaintiffs now represent all inmates in the jail since June 12, 2012 "who were not on a suicide watch, but were housed in a padded cell where they were deprived of clothing, bedding, and hygiene products," according to the order by U.S. District Court Chief Judge Richard Young. Former Floyd County Sheriff Darrell Mills, three others employed as jail officers during the time of the suit and Jane/John Doe officers are named as defendants in the suit, originally filed in summer 2014 in the U.S. District Court in New Albany. The federal suit includes six named defendants -- Tabitha Gentry, Vincent Minton, Michael Herron, Adam Walker, Anna Chastain and Janelle South. According to the suit, jail officers forcibly removed the inmates' clothes, left them naked for prolonged periods and subjected them to excessive uses of force, all while the inmates did not pose a security threat to warrant the treatment. That suit alleged there exist many more former inmates held at the jail who faced similar conditions. Louisville-based attorney Laura Landenwich is representing the plaintiffs. Judge Young issued the order recently, finding the former inmates met their burden to prove class action status. Through their attorney R. Jeffrey Lowe, the defendants argued Judge Young should not grant class action status because each plaintiff's case should be examined individually to take into account the circumstances of each situation and to assess specific damages, according to court records. Judge Young concluded it is more efficient to deal with the claims collectively than through multiple individual suits, according to his order. FOX SEARCHLIGHT: 2nd Cir. Enters Revised Opinion in "Glatt" ----------------------------------------------------------- The U.S. Court of Appeals for the Second Circuit on Jan. 25, 2016, revised a previous opinion originally issued on July 2, 2015, in the appellate case, Eric GLATT, Alexander Footman, Eden M. Antalik, on Behalf of Herself and All Others Similarly Situated, Plaintiffs-Appellees, v. FOX SEARCHLIGHT PICTURES, INC., Fox Entertainment Group, Inc., Defendants-Appellants, (2d Cir.) Circuit Judge John M. Walker, Jr. vacated the District Court's order granting partial summary judgment to Glatt and Footman, vacated its order certifying Antalik's New York class, vacated its order conditionally certifying Antalik's nationwide collective, and remanded for further proceedings. Plaintiffs, who were hired as unpaid interns, claim compensation as employees under the Fair Labor Standards Act and New York Labor Law. Plaintiffs Eric Glatt and Alexander Footman moved for partial summary judgment on their employment status. Plaintiffs worked as unpaid interns either on the Fox Searchlight-distributed film Black Swan or at the Fox corporate offices in New York City. They contend that the defendants, Fox Searchlight and Fox Entertainment Group, violated the Fair Labor Standards Act (FLSA), 29 U.S.C. Sections 206-07, and New York Labor (NYLL), N.Y. Labor Law Section 652, by failing to pay them as employees during their internships as required by the FLSA's and NYLL's minimum wage and overtime provisions. Plaintiff Eden Antalik moved to certify a class of all New York interns working at certain of defendants' divisions between 2005 and 2010 and to conditionally certify a nationwide collective of all interns working at those same divisions between 2008 and 2010. The District Court (William H. Pauley III, J.) granted Glatt and Footman's motion for partial summary judgment, certified Antalik's New York class, and conditionally certified Antalik's nationwide collective. Defendants filed an interlocutory appeal. A copy of the Court's Decision dated July 2, 2015, and amended Jan. 25, 2016, is available at http://is.gd/IoqykSfrom Leagle.com. On remand, the District Court may, in its discretion, permit the parties to submit additional evidence relevant to the Plaintiffs' employment status, such as evidence on Glatt's and Footman's formal education. The Court of Appeals expresses no opinion with respect to the outcome of any renewed motions for summary judgment the parties might make based on the primary beneficiary test. Even if Antalik established that Fox had a policy of replacing paid employees with unpaid interns, it would not necessarily mean that every Fox intern was likely to prevail on her claim that she was an FLSA employee under the primary beneficiary test, the most important issue in each case. Thus, assuming some questions may be answered with generalized proof, they are not more substantial than the questions requiring individualized proof. The most important question in this litigation cannot be answered with generalized proof, the Court of Appeals vacates the District Court's order certifying Antalik's proposed class and remand for further proceedings. Neal Kumar Katyal, Esq. -- neal.katyal@hoganlovells.com -- of Hogan Lovells U.S. LLP -- Mary Helen Wimberly, Esq. -- maryhelen.wimberly@hoganlovells.com -- Frederick Liu, Esq. -- frederick.liu@hoganlovells.com -- of Hogan Lovells U.S. LLP -- Elise M. Bloom, Esq. -- ebloom@proskauer.com -- Mark D. Harris, Esq. -- mharris@proskauer.com -- Chantel L. Febus, Esq. -- cfebus@proskauer.com -- Amy F. Melican, Esq. -- amelican@proskauer.com -- and Joshua S. Fox, Esq. -- jfox@proskauer.com -- of Proskauer Rose LLP serve as counsel for Defendants-Appellants Rachel Bien, Esq. -- rmb@outtengolden.com -- Adam T. Klein, Esq. -- atk@outtengolden.com -- Juno Turner, Esq. -- jturner@outtengolden.com -- of Outten & Golden LLP serve as counsel for Plaintiffs-Appellees FREEPORT-MCMORAN INC: "Magro" Sues over Share Price Drop -------------------------------------------------------- Dean Magro, individually and on behalf of all others similarly situated, Plaintiff, v. Freeport-Mcmoran Inc., Richard C. Adkerson and Kathleen L. Quirk, Defendants, Case 2:16-cv-00186-ESW (D. Ariz., January 26, 2016), seeks damages, prejudgment and post- judgment interest, attorneys' fees, expert fees and other costs and such other and further relief under Sec. 10(b) and 20(a) of the Securities Exchange Act of 1934. Freeport is a natural resource company engaging in the exploration of copper, gold, molybdenum, cobalt, silver and other metals, as well as oil and gas. It is headquartered in Phoenix, Arizona. Freeport stock fell after reports surfaced alleging that it bribed Indonesian government officials to extend its mining concession in Indonesia. Plaintiff acquired Freeport securities at artificially inflated prices and lost substantially upon the revelation of the alleged corrective disclosures. The Plaintiff is represented by: Susan Martin, Esq. Jennifer Kroll, Esq. MARTIN & BONNETT, PLLC 1850 N. Central Ave. Suite 2010 Phoenix, AZ 85004 Tel: (602) 240-6900 Email: smartin@martinbonnett.com jkroll@martinbonnett.com - and - Jeremy A. Lieberman, Esq. J. Alexander Hood II, Esq. Marc Gorrie, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Tel: (212) 661-1100 Fax: (212) 661-8665 Email: jalieberman@pomlaw.com ahood@pomlaw.com mgorrie@pomlaw.com - and - Patrick V. Dahlstrom, Esq. POMERANTZ LLP 10 South La Salle Street, Suite 3505 Chicago, IL 60603 Tel: (312) 377-1181 Fax: (312) 377-1184 Email: pdahlstrom@pomlaw.com FREEPORT-MCMORAN INC: March 28 Lead Plaintiff Deadline Set ---------------------------------------------------------- Glancy Prongay & Murray LLP ("GPM") on Feb. 22 announced the filing of a class action lawsuit on behalf of investors who purchased Freeport-McMoRan Inc. ("Freeport-McMoRan" or the "Company") (NYSE: FCX) securities between February 27, 2015 and January 15, 2016, inclusive (the "Class Period"). Injured investors are encouraged to contact Lesley Portnoy of GPM at 310- 201-9150 to discuss their legal rights. On January 19, 2016, following an investigation concerning allegations of corruption and bribery between the Company and government officials to secure lucrative mining rights, the chief executive officer of the Company's Indonesian unit, Maroef Sjamsuddin, stepped down. This news came less than a month after the chairman of Freeport-McMoRan resigned allegedly due to similar charges. Following these news reports, shares of the Company's stock fell in value, thereby damaging investors. The complaint alleges that throughout the Class Period, defendants made materially false and misleading statements and/or failed to disclose that: (1) Sjamsuddin had discussions with senior officials in the Indonesian government about bribing Indonesian government officials in return for an extension of Freeport- McMoRan's right to operate in the country; (2) that Freeport- McMoRan had violated the Foreign Corrupt Practices Act ("FCPA"); and (3) as a result of the foregoing, Freeport-McMoRan's public statements were materially false and misleading at all relevant times. If you purchased Freeport-McMoRan securities you have until March 28, 2016 to request that the Court appoint you as lead plaintiff. If you have information or would like to learn more about these claims, or have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Lesley Portnoy, Esquire, of GPM, 1925 Century Park East, Suite 2100, Los Angeles, California 90067 at 310-201-9150, Toll-Free at 888-773-9224, by email to shareholders@glancylaw.com or visit our website at http://www.glancylaw.com If you inquire by email please include your mailing address, telephone number and number of shares purchased. This press release may be considered Attorney Advertising in some jurisdictions under the applicable law and ethical rules. GENERAL CHEMICAL: Mattoon Sues over Alum Price-Fixing ----------------------------------------------------- City of Mattoon, individually, and on behalf of all others similarly situated, Plaintiff, v. Frank A. Reichl, General Chemical Corporation, General Chemical Performance Products, LLC, GenTek Inc., Chemtrade Logistics Income Fund, Chemtrade Logistics Inc., Chemtrade Chemicals Corporation, Chemtrade Chemicals US, LLC; and John Doe Nos. 1-50, Case No. 2:16-cv-00319 (E.D. Penn., January 26, 2016), seeks damages, injunctive relief and other relief for violation of Section 1 and 3 of the Sherman Antitrust Act 15 U.S.C. Defendants are allegedly engaged in a conspiracy to artificially fix, raise, maintain, and/or stabilize the prices of aluminum sulfate in the United States. Plaintiff purchased liquid aluminum sulfate directly from the defendants at allegedly excessive prices. Reichl was the General Manager of Water Chemicals for General Chemical Group, Inc., a corporation existing under the laws of Delaware, with principal place of business at 90 East Halsey Road, Parsippany, New Jersey. General Chemical Corporation was a corporation existing under the laws of Delaware with principal place of business at Suite 300, 155 Gordon Baker Road, Toronto, Ontario. General Chemical Performance Products LLC was a limited liability company organized under the laws of Delaware with principal place of business at 90 East Halsey Road, Parsippany, New Jersey. GenTek Inc. was a Delaware corporation with its principal place of business in Parsippany, New Jersey. GenTek manufactured and supplied water treatment chemicals throughout the United States. It owned and controlled Defendants General Chemical Performance Products LLC and General Chemical Corporation. Chemtrade Logistics Income Fund is a limited purpose trust under the laws of the Province of Ontario and is headquartered in Toronto, Canada. It manufactures and markets industrial chemicals and other coagulants used in water treatment in Canada, the United States and Europe. Chemtrade Logistics Inc. is a subsidiary of Chemtrade Logistics Income Fund incorporated under the laws of the Province of Ontario. Chemtrade Chemicals Corporation is a Delaware corporation and is a subsidiary of Chemtrade Logistics Income Fund. Chemtrade Chemicals US, LLC is a Delaware limited liability company and is a subsidiary of Chemtrade Logistics Income Fund. The Plaintiff is represented by: Jeffrey L. Kodroff, Esq. Jeffrey J. Corrigan, Esq. SPECTOR ROSEMAN KODROFF & WILLIS, P.C. 1818 Market St., Suite 2500 Philadelphia, PA 19103 Tel: (215) 496-0300 Fax: (215) 496-6611 Email: jkodroff@srkw-law.com jcorrigan@srkw-law.com - and - Thomas H. Burt, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLC 270 Madison Ave. New York, NY 10016 Tel: (212) 545-4600 Fax: (212) 686-0114 Email: burt@whafh.com - and - Theodore B. Bell, Esq. Carl V. Malmstrom, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLC One South Dearborn St., Suite 2122 Chicago, IL 60603 Tel: (312) 984-0000 Fax: (312) 212-4496 Email: tbell@whafh.com malmstrom@whafh.com - and - Janett S. Winter-Black, Esq. LAW OFFICES OF WINTER-BLACK AND BAKER 201 N. Logan St. Mattoon, IL 61938 Tel: (217) 235-3400 Fax: (217) 235-3402 GENERAL CHEMICAL: Grand Marais Suit Alleges Alum Price Fixing -------------------------------------------------------------- City of Grand Marais, Minnesota individually and on behalf of all others similarly situated, Plaintiff, v. Frank A. Reichl, General Chemical Corporation, General Chemical Performance Products, LLC, GenTek Inc., Chemtrade Logistics Income Fund, Chemtrade Logistics Inc., Chemtrade Chemicals Corporation, Chemtrade Chemicals US, LLC; and John Doe Nos. 1-50, Case No. 0:16-cv-00171 (D. Minn. January 26, 2016), seeks damages, injunctive relief and other relief for violation of Section 1 of the Sherman Act 15 U.S.C. Defendants are allegedly engaged in a conspiracy to artificially fix, raise, maintain, and/or stabilize the prices of aluminum sulfate in the United States. Plaintiff purchased liquid aluminum sulfate directly from the defendants at allegedly excessive prices. Reichl was the General Manager of Water Chemicals for General Chemical Group, Inc., a corporation existing under the laws of Delaware, with principal place of business at 90 East Halsey Road, Parsippany, New Jersey. General Chemical Corporation was a corporation existing under the laws of Delaware with principal place of business at Suite 300, 155 Gordon Baker Road, Toronto, Ontario. General Chemical Performance Products LLC was a limited liability company organized under the laws of Delaware with principal place of business at 90 East Halsey Road, Parsippany, New Jersey. GenTek Inc. was a Delaware corporation with its principal place of business in Parsippany, New Jersey. GenTek manufactured and supplied water treatment chemicals throughout the United States. It owned and controlled Defendants General Chemical Performance Products LLC and General Chemical Corporation. Chemtrade Logistics Income Fund is a limited purpose trust under the laws of the Province of Ontario and is headquartered in Toronto, Canada. It manufactures and markets industrial chemicals and other coagulants used in water treatment in Canada, the United States and Europe. Chemtrade Logistics Inc. is a subsidiary of Chemtrade Logistics Income Fund incorporated under the laws of the Province of Ontario. Chemtrade Chemicals Corporation is a Delaware corporation and is a subsidiary of Chemtrade Logistics Income Fund. Chemtrade Chemicals US, LLC is a Delaware limited liability company and is a subsidiary of Chemtrade Logistics Income Fund. The Plaintiff is represented by: Garrett D. Blanchfield, Esq. Roberta A. Yard, Esq. REINHARDT WENDORF & BLANCHFIELD E-1250 First National Bank Bldg. 332 Minnesota St. St. Paul, MN 55101 Tel: (651) 287-2100 Fax: (651) 287-2103 E-mail: g.blanchfield@rwblawfirm.com r.yard@rwblawfirm.com - and - Christopher M. Hood, Esq. FLAHERTY & HOOD, P.A. 525 Park Street, Suite 470 St. Paul, MN 55103 Tel: (651) 225-8840 Fax: (651) 225-9088 Email: cmhood@flaherty-hood.com dmmarx@flaherty-hood.com - and - Christian M. Sande (#026474X) CHRISTIAN SANDE LLC 310 Clifton Avenue, Suite 300 Minneapolis, MN 55403 Tel: (612) 387-1430 Fax: (612) 677-3078 Email: christian@christiansande.com HAIN CELESTIAL: 9th Cir. Reinstates "Balser" Mislabeling Suit ------------------------------------------------------------- The U.S. Court of Appeals for the Ninth Circuit breathed new life into a putative class action lawsuit filed by Alessandra Balser and Ruth Kresha against The Hain Celestial Group, Inc. The plaintiffs allege that Hain's use of the word "Natural" on some of its products' packaging is misleading because the products contain synthetic ingredients. The district court dismissed the case without leave to amend. "We reverse and remand for further proceedings," a three-judge panel of the Ninth Circuit ruled on Feb. 22. A copy of their Memorandum is available at http://goo.gl/L8ySRsfrom Leagle.com. The Appeals Court held that Plaintiffs sufficiently pleaded how they were harmed by the "natural" representation. Allegations that one paid more than one otherwise would have because of a misrepresentation sufficiently allege economic injury, the Appeals Court said, citing their prior ruling in Mazza v. Am. Honda Motor Co., 666 F.3d 581, 595 (9th Cir. 2012). The Ninth Circuit also noted that, by minute order, the district court deferred consideration of the Plaintiffs' motion for precertification discovery to a date after the Plaintiffs' motion for class certification was due, thereby implicitly denying the motion by rendering it moot. "We vacate that decision and remand to the district court for consideration of whether precertification discovery is necessary, given Plaintiffs' particular document requests, updated requests, and recent case law," the panel said. The appellate case is, ALESSANDRA BALSER, Individually and on Behalf of All Others Similarly Situated; RUTH KRESHA, Individually and on Behalf of All Others Similarly Situated, Plaintiffs- Appellants, v. THE HAIN CELESTIAL GROUP, INC., Defendant-Appellee, No. 14-55074 (9th Cir.). HOBOKEN, NJ: Residents Lose Appeal in Rent Ordinance Case --------------------------------------------------------- The Hon. Marianne Espinosa, Judge of the Appellate Division of the New Jersey Superior Court, held that the City of Hoboken, N.J., and its agencies and officials are immune from a class action lawsuit filed by residents who allegedly were victimized by the defendants' failure to uniformly and constitutionally administer a rent control ordinance (RCO). The class action complaint, filed in February 2010, alleges the plaintiff class was victimized by the defendants' failure to uniformly and constitutionally administer the RCO and the 2006 retroactive change in procedures, in violation of: -- the New Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-1 to-2; 42 U.S.C.A. Sections 1983, 1988; -- the Hoboken RCO and regulations; -- the New Jersey Constitution; and -- the United States Constitution. The complaint sought injunctive relief against the defendants, "restraining and enjoining them from performing legal rent calculations by applying the Ordinance requirements for periods prior to 2007," the reversal of all rent calculations made by retroactively applying the procedures adopted in 2006, compensatory damages and attorneys' fees. "We affirm the trial court's decision that the class action lawsuit was not a catalyst for the passage of Z-88. We also affirm the ruling that the individual defendants are shielded by qualified immunity and note that, in the absence of any claims for money damages, qualified immunity is inapplicable to claims for injunctive relief. Finally, we affirm the trial court's decision to deny plaintiffs' motion to amend," Judge Espinosa said. In 1996, a report by the Hoboken Task Force on Rent Control Revision and Modernization described the deficiencies in enforcement and recordkeeping that undermined the purpose of Hoboken's rent control ordinance (RCO). Approximately 15 years later, after two revisions to the RCO succumbed to defeats in referenda, the City of Hoboken adopted an ordinance, Z-88, that addressed inequities in the RCO and its enforcement affecting both landlords and tenants. The appellate case, GINA DENARDO, individually and on behalf of all similarly situated, and 611-613, LLC, individually and on behalf of all similarly situated corporate entities, Plaintiffs- Appellants, v. THE CITY OF HOBOKEN, HOBOKEN RENT LEVELING AND STABILIZATION BOARD, SUZANNE HETMAN, MAYOR OF THE CITY OF HOBOKEN, CITY OF HOBOKEN MUNICIPAL COUNCIL, Defendants-Respondents, and THE CITIZENS FOR RETENTION OF AFFORDABLE HOUSING IN HOBOKEN, Defendant/Intervenor-Respondent, No. A-0274-13T3, (N.J. Super., App. Div.), calls for the Court of Appeals to consider whether Plaintiffs' class action lawsuit was a catalyst for the passage of Z-88, thereby providing a basis for the award of counsel fees under N.J.S.A. 10:6-2(f). Plaintiffs contend the evidence of a causal nexus between their lawsuit and the adoption of Z-88 was so strong that the City was required to refute the existence of a causal nexus. Plaintiffs argue further that the trial court committed reversible error in finding the individual actors and the municipality enjoyed qualified immunity on all claims. Finally, Plaintiffs argue the trial court committed reversible error in refusing to grant their motion for leave to amend the complaint. A copy of Judge Espinosa's Opinion dated February 3, 2016, is available at http://is.gd/3gjg58from Leagle.com. Charles X. Gormally, Esq. -- cgormally@bracheichler.com -- Sean A. Smith, Esq. -- sasmith@bracheichler.com and Autumn M. McCourt, Esq. -- amccourt@bracheichler.com of Brach Eichler L.L.C. serve as counsel for Appellants Victor A. Afanador, Esq. -- vafanador@litedepalma.com and Jeffrey A. Shooman, Esq. of Lite DePalma Greenberg, LLC serve as counsel for Respondents HSBC BANK USA: Court Trims Claims in "Schwartz" Credit Card Suit ---------------------------------------------------------------- District Judge Katherine Polk Failla granted in part Defendant's motion to dismiss in the case, BRUCE SCHWARTZ, Plaintiff, v. HSBC BANK USA, N.A., Defendant, Case No. 14 Civ. 9525 (KPF), (S.D.N.Y.) For the second time in as many years, Bruce Schwartz has filed suit against HSBC Bank, with which Schwartz holds an open end consumer credit card account. This time, Plaintiff alleges that Defendant has violated, and continues to violate, certain provisions of the Truth in Lending Act (TILA), 15 U.S.C. Sections 1601-1667f, and its implementing regulation, Regulation Z, 12 C.F.R. Part 1026. Specifically, Plaintiff alleges that Defendant: (i) improperly imposed a late fee and finance charge on Plaintiff's timely payment, in violation of 15 U.S.C. Section 1637(o)(2) and the corresponding provisions of Regulation Z; and (ii) failed to disclose the penalty annual percentage rate (APR) applicable to Plaintiff's account, thereby violating 15 U.S.C. Section 1637(b)(12) and the corresponding provisions of Regulation Z. In addition to his claims under TILA, Plaintiff asserts a claim for state law breach of contract based on Defendant's imposition of a late fee and finance charge. In her Opinion and Order dated February 9, 2016 available at http://is.gd/EB3PyCfrom Leagle.com, Judge Failla granted Defendant's motion to dismiss Plaintiff's claims for the imposition of a late fee and interest charge in violation of TILA and for breach of contract is converted to a motion for summary judgment; its motion in the alternative to strike the start date for proposed Classes A and B is therefore denied as moot. Its motion to dismiss Plaintiff's claim for APR disclosure violations under TILA is denied. The parties were scheduled to appear for an initial pretrial conference on February 23, 2016. A proposed case management plan and joint status letter was scheduled to be filed no later than February 18, 2016, pursuant to the Court's Individual Rules of Civil Practice. Brian Lewis Bromberg, Esq. and Jonathan Robert Miller, Esq. of Bromberg Law Office, P.C. -- Harley Jay Schnall, Esq. of Law Office of Harley J. Schnall serve as counsel for Plaintiff Bruce Schwartz Aaron Van Nostrand, Esq. -- avannostrand@duanemorris.com -- of Duane Morris, LLP and Louis Smith, Esq. -- smithlo@gtlaw.com -- of Greenberg Traurig LLP serve as counsel for Defendant HSBC Bank USA, N.A. HUNTSMAN CORP: Bid to Dismiss Indirect Plaintiffs' Suit Pending --------------------------------------------------------------- Huntsman Corporation and Huntsman International LLC said in its Form 10-K Report filed with the Securities and Exchange Commission on February 16, 2016, for the fiscal year ended December 31, 2015, that the Company and the co-defendants' motion to dismiss a class action lawsuit by indirect plaintiffs is pending. "We were named as a defendant in consolidated class action civil antitrust suits filed on February 9 and 12, 2010 in the U.S. District Court for the District of Maryland alleging that we and our co-defendants and other alleged co-conspirators conspired to fix prices of titanium dioxide sold in the U.S. between at least March 1, 2002 and the present. The other defendants named in this matter were DuPont, Kronos and Cristal (formerly Millennium)," the Company said. On August 28, 2012, the court certified a class consisting of all U.S. customers who purchased titanium dioxide directly from the defendants (the "Direct Purchasers") since February 1, 2003. "On December 13, 2013, we and all other defendants settled the Direct Purchasers litigation and the court approved the settlement. We paid the settlement in an amount immaterial to our consolidated financial statements," the Company said. "On November 22, 2013, we were named as a defendant in a civil antitrust suit filed in the U.S. District Court for the District of Minnesota brought by a Direct Purchaser who opted out of the Direct Purchasers class litigation (the "Opt-Out Litigation"). On April 21, 2014, the court severed the claims against us from the other defendants sued and ordered our case transferred to the U.S. District Court for the Southern District of Texas. Subsequently, Kronos, another defendant, was also severed from the Minnesota case and claims against it were transferred and consolidated for trial with our case in the Southern District of Texas. The trial previously scheduled to begin February 22, 2016 has been rescheduled to begin September 26, 2016. It is possible that additional claims will be filed by other Direct Purchasers who opted out of the class litigation. "We were also named as a defendant in a class action civil antitrust suit filed on March 15, 2013 in the U.S. District Court for the Northern District of California by the purchasers of products made from titanium dioxide (the "Indirect Purchasers") making essentially the same allegations as did the Direct Purchasers. On October 14, 2014, plaintiffs filed their Second Amended Class Action Complaint narrowing the class of plaintiffs to those merchants and consumers of architectural coatings containing titanium dioxide. On August 11, 2015, the court granted our motion to dismiss the Indirect Purchasers litigation with leave to amend the complaint. A Third Amended Class Action Complaint was filed on September 29, 2015 further limiting the class to consumers of architectural paints. Plaintiffs have raised state antitrust claims under the laws of 15 states, consumer protection claims under the laws of 9 states, and unjust enrichment claims under the laws of 16 states. On November 4, 2015, we and our co-defendants filed another motion to dismiss, which remains pending. "The Opt-Out Litigation and Indirect Purchasers plaintiffs seek to recover injunctive relief, treble damages or the maximum damages allowed by state law, costs of suit and attorneys' fees. We are not aware of any illegal conduct by us or any of our employees. Nevertheless, we have incurred costs relating to these claims and could incur additional costs in amounts which in the aggregate could be material to us. Because of the overall complexity of these cases, we are unable to reasonably estimate any possible loss or range of loss associated with these claims and we have made no accruals with respect to these claims." Huntsman is a global manufacturer of differentiated organic chemical products and of inorganic chemical products. INDIANA: Judge Tosses Child Services Case Manager's Class Action ---------------------------------------------------------------- The Associated Press reports that a judge has dismissed a class- action lawsuit in which an Indiana Department of Child Services case manager claimed she had an excessive caseload that put children at risk. Marion Superior Court Judge Heather Welch issued an order on Feb. 22 throwing out Mary Price's complaint that was filed last July. Judge Welch ruled Ms. Price has no right to bring the claim under an Indiana law setting a maximum caseload at 17 and that there's no grounds for the court to issue a mandate changing caseloads. Judge Welch says she should take her complaint to the State Employee Appeals Commission. Ms. Price said her caseload was 43 children. The lawsuit was brought by the American Civil Liberties Union of Indiana. ACLU legal director Ken Falk says he's disappointed in Welch's ruling and will appeal it. JOURNAL MEDIA: MOU Reached in Merger Class Actions -------------------------------------------------- Journal Media Group, Inc. said in its Form 8-K Report filed with the Securities and Exchange Commission on February 16, 2016, that the Current Report on Form 8-K is being filed pursuant to a memorandum of understanding dated February 16, 2016 regarding the settlement of certain litigation relating to the previously announced Agreement and Plan of Merger, dated as of October 7, 2015 (the "Merger Agreement"), by and among Journal Media Group, Inc., a Wisconsin corporation (the "Company" or "JMG"), Gannett Co., Inc. ("Gannett") and Jupiter Merger Sub, Inc., a wholly owned subsidiary of Gannett ("Merger Sub"), which provides for the merger of Merger Sub with and into the Company, with the Company surviving the merger as a wholly owned subsidiary of Gannett (the "Merger"). As disclosed on page 60 of the definitive proxy statement filed with the Securities and Exchange Commission (the "SEC") by the Company on January 22, 2016 (the "Definitive Proxy Statement"), members of the board of directors of the Company (the "Board"), and the parties to the Merger Agreement, including JMG and Gannett, are defendants in two class action lawsuits filed in the Circuit Court of Milwaukee County, Wisconsin that have been consolidated into a single lawsuit. The first lawsuit, captioned Seifert v. Aitken, et al., No. 2015-CV-009686, was filed by a purported JMG shareholder on November 24, 2015, and the second lawsuit, captioned Sabattini v. Aitken, et al., No. 2015-CV- 010003, was filed by a purported JMG shareholder on December 4, 2015. The lawsuits have been consolidated into a single action captioned In re Journal Media Group, Inc. Shareholder Litigation, No. 15-CV-009686 (the "Consolidated Action"). The plaintiffs in the Consolidated Action allege that the directors of JMG breached their fiduciary duties to the Company's shareholders in connection with the Merger contemplated by the Merger Agreement and that Gannett and its affiliate aided and abetted such alleged breaches of fiduciary duty. In particular, the plaintiffs allege that the members of the Board breached their fiduciary duties by, among other things, (i) engaging in a deficient and unfair process leading up to the announcement of the Merger Agreement, (ii) agreeing to enter into the Merger Agreement for inadequate consideration, (iii) adopting an executive severance and change in control plan, (iv) agreeing to certain deal protection provisions, such as a termination fee, a "no solicitation" provision, and a "matching rights" provision, and (v) failing to disclose certain material information in the preliminary proxy statement that JMG filed with the SEC on November 4, 2015 (the "Preliminary Proxy Statement"). The plaintiffs also allege that the Board misleadingly set forth new financial projections in the Preliminary Proxy Statement and question various aspects of the financial analyses performed by the Board's financial advisor in connection with its opinion. The plaintiffs seek, among other relief, declaratory and injunctive relief enjoining the Merger, and rescissory damages in an unspecified amount. On December 18, 2015, JMG and the Board filed a motion to dismiss and a motion to stay discovery and Gannett filed a motion to dismiss, which have yet to be decided by the court. On January 15, 2016, plaintiff filed a motion for expedited discovery and a motion for temporary injunction, which have yet to be decided by the court. On February 16, 2016, the parties to the Consolidated Action entered into a memorandum of understanding (the "MOU") providing for the settlement of all claims in the Consolidated Action. Under the MOU, and subject to court approval and definitive documentation, the plaintiffs and the putative class members settle and release, against the named defendants and certain related parties, all claims in the Consolidated Action and any pleadings or briefs filed in the same and any potential claim related to, among other things, (i) the matters alleged in any pleadings or briefs filed in the Consolidated Action; (ii) the Merger Agreement and the transactions contemplated thereby, including the Merger; (iii) the Preliminary Proxy Statement, Definitive Proxy Statement, and any amendments, supplements, or modifications to any of the foregoing, and any other public disclosures made in connection with or regarding the Merger; (iv) the statutory or fiduciary obligations (including any disclosure obligations) of any of the defendants or certain related parties in connection with the Merger Agreement, the Merger, the Preliminary Proxy Statement, the Definitive Proxy Statement or any amendments, supplements, or modifications to any of the foregoing, and any other public disclosures made in connection with or regarding the Merger; (v) the negotiations in connection with the Merger Agreement and Merger; and (vi) any and all conduct by any of the defendants and certain related parties arising out of or relating in any way to the negotiation or execution of the MOU and any subsequent stipulation. The settlement will not affect the timing of the special meeting of the shareholders of the Company, which is scheduled to be held on March 1, 2016, or the amount of the consideration to be received by the Company's shareholders in connection with the Merger. While the Company and the other defendants believe that no supplemental disclosure is required under applicable laws, in order to avoid the risk of the Consolidated Action delaying or adversely affecting the Merger and to minimize the expense of defending the Consolidated Action, the Company and the other defendants have agreed, pursuant to the terms of the MOU, to make certain supplemental disclosures related to the proposed Merger, all of which are set forth below. The MOU contemplates that the parties will enter into a stipulation of settlement. The stipulation of settlement will be subject to customary conditions, including court approval following notice to the Company's shareholders. In the event that the parties enter into a stipulation of settlement, a hearing will be scheduled at which the Circuit Court of Milwaukee County, Wisconsin will consider the fairness, reasonableness, and adequacy of the settlement. If the settlement is finally approved by the court, it will resolve and release all claims in all actions that were or could have been brought challenging any aspect of the proposed Merger, the Merger Agreement, and any disclosure made in connection therewith, pursuant to terms that will be disclosed to shareholders prior to final approval of the settlement. In addition, in connection with the settlement, the parties contemplate that plaintiffs' counsel will file a petition in the Circuit Court of Milwaukee County, Wisconsin for an award of attorneys' fees and expenses to be paid by the Company or its successor. The settlement, including the payment by the Company or any successor thereto of any such attorneys' fees, is also contingent upon, among other things, the Merger becoming effective under Wisconsin law. There can be no assurance that the Circuit Court of Milwaukee County, Wisconsin will approve the settlement contemplated by the MOU. In the event that the settlement is not approved and such conditions are not satisfied, the defendants will continue to vigorously defend against the allegations in the Consolidated Action, which the defendants believe are without merit. KATINA POWELL: Hearing Set in UofL Student's Class Action --------------------------------------------------------- WLKY.com reports that a court hearing was set on Feb. 22 in the civil lawsuit filed against author Katina Powell and her publisher. The lawsuit was filed by University of Louisville student Kyle Hornback. She claims Ms. Powell's book "Breaking Cardinal Rules," tarnished the university and diminished the value of her education. Mr. Hornback's lawyer wants the suit designated a class action on behalf of all UofL students. Mr. Hornback told WLKY she wants to prevent Ms. Powell from profiting from her admitted criminal activity and hopes any profits from the book's sales will be turned over to the university. Ms. Powell's attorneys and the book's publisher want the case dismissed, calling it frivolous. But attorneys handling the civil suit filed a motion refuting those claims in January. Both sides will face a judge at the end of March to explain their reasons for whether or not the case should move forward. KEURIG GREEN: 3 Additional Class Suits Filed Over Merger -------------------------------------------------------- Keurig Green Mountain, Inc. said in its Form 8-K Report filed with the Securities and Exchange Commission on February 16, 2016, that a putative class action lawsuit (Berger v. Keurig Green Mountain, Inc., et al., Case No. 11815-CB) was filed in the Court of Chancery of the State of Delaware against the Company, the members of the board of directors of the Company (the "Company Board"), Acorn Holdings B.V., a private limited liability company incorporated under the laws of the Netherlands ("Parent"), Maple Holdings Acquisition Corp., a Delaware corporation and wholly- owned subsidiary of Parent ("Acquisition Sub"), JAB Holdings B.V., a private limited liability company incorporated under the laws of the Netherlands ("JAB"), and JAB Holding Company S.a r.l., a private limited liability company incorporated under the laws of Luxembourg ("JAB Holding"), in connection with the transactions contemplated by that certain Agreement and Plan of Merger, dated as of December 6, 2015 (the "Merger Agreement"), by and among the Company, Parent, Acquisition Sub and, solely for purposes of Article IX of the Merger Agreement, JAB. From December 21, 2015 through January 19, 2016, three additional putative class action lawsuits (Kaufmann v. Keurig Green Mountain, Inc., et al., Case No. 11826-CB, Restivo v. Keurig Green Mountain, Inc., et al., Case No. 11840-CB and Chapel v. Keurig Green Mountain, Inc., et al., Case No. 11911-CB), were filed in the Court of Chancery of the State of Delaware against the Company, the members of the Company Board, Parent, Acquisition Sub and JAB. The parties to the Merger Agreement believe that no further disclosure is required to supplement the Company's definitive proxy statement filed with the SEC on January 12, 2016 (the "Proxy Statement") under applicable laws. However, to avoid the risk that the Delaware litigation may delay or otherwise adversely affect the consummation of the transactions contemplated by the Merger Agreement, the Company made the supplemental disclosures to the Proxy Statement. KINDER MORGAN: Supreme Court to Hear Oral Argument on March 9 ------------------------------------------------------------- Kinder Morgan, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 16, 2016, for the fiscal year ended December 31, 2015, that the Supreme Court will hear oral argument on March 9, 2016, in the class action lawsuits related to the merger litigation. Kinder Morgan, Inc. Corporate Reorganization Litigation On November 26, 2014, the Company completed its acquisition, pursuant to three separate merger agreements, of all of the outstanding common units of Kinder Morgan Energy Partners, L.P. and El Paso Pipeline Partners, L.P. and all of the outstanding shares of Kinder Morgan Management, LLC that the Company did not already own. The transactions, valued at approximately $77 billion, are referred to collectively as the "Merger Transactions." Certain unitholders of Kinder Morgan Energy Partners, L.P. and El Paso Pipeline Partners, L.P., filed five putative class action lawsuits in the Court of Chancery of the State of Delaware in connection with the Merger Transactions, which the Court consolidated under the caption In re Kinder Morgan, Inc. Corporate Reorganization Litigation (Consolidated Case No. 10093-VCL). The plaintiffs originally sought to enjoin one or more of the proposed Merger Transactions, which relief the Court denied on November 5, 2014. On December 12, 2014, the plaintiffs filed a Verified Second Consolidated Amended Class Action Complaint, which purports to assert claims on behalf of both the former EPB unitholders and the former KMP unitholders. The EPB plaintiff alleged that (i) El Paso Pipeline GP Company, L.L.C. (EPGP), the general partner of EPB, and the directors of EPGP breached duties under the EPB partnership agreement, including the implied covenant of good faith and fair dealing, by entering into the EPB Transaction; (ii) EPB, E Merger Sub LLC, KMI and individual defendants aided and abetted such breaches; and (iii) EPB, E Merger Sub LLC, KMI, and individual defendants tortiously interfered with the EPB partnership agreement by causing EPGP to breach its duties under the EPB partnership agreement. The KMP plaintiffs allege that (i) Kinder Morgan Management, LLC (KMR), Kinder Morgan G.P., Inc. (KMGP), and individual defendants breached duties under the KMP partnership agreement, including the implied duty of good faith and fair dealing, by entering into the KMP Transaction and by failing to adequately disclose material facts related to the transaction; (ii) KMI aided and abetted such breach; and (iii) KMI, KMP, KMR, P Merger Sub LLC, and individual defendants tortiously interfered with the rights of the plaintiffs and the putative class under the KMP partnership agreement by causing KMGP to breach its duties under the KMP partnership agreement. The complaint seeks declaratory relief that the transactions were unlawful and unenforceable, reformation, rescission, rescissory or compensatory damages, interest, and attorneys' and experts' fees and costs. On December 30, 2014, the defendants moved to dismiss the complaint. On April 2, 2015, the EPB plaintiff and the defendants submitted a stipulation and proposed order of dismissal, agreeing to dismiss all claims brought by the EPB plaintiff with prejudice as to the EPB lead plaintiff and without prejudice to all other members of the putative EPB class. The Court entered such order on April 2, 2015. On August 24, 2015, the Court issued an order granting the defendants' motion to dismiss the remaining counts of the complaint for failure to state a claim. On September 21, 2015, plaintiffs filed a notice of appeal to the Supreme Court of the State of Delaware, captioned Haynes Family Trust et al. v. Kinder Morgan G.P., Inc. et al. (Case No. 515). The plaintiffs are only appealing the dismissal of claims brought against defendants KMGP, Ted A. Gardner, Gary L. Hultquist, and Perry M. Waughtal and not those asserted against KMI, P. Merger Sub LLC, Richard D. Kinder, Steven J. Kean, KMP and KMR. The Supreme Court will hear oral argument on March 9, 2016. The defendants believe the allegations against them lack merit, and they intend to vigorously defend the lawsuit. KINDER MORGAN: Court Approved Settlement in Capex Litigation ------------------------------------------------------------ Kinder Morgan, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 16, 2016, for the fiscal year ended December 31, 2015, that the court has approved the settlement in the case, Kinder Morgan Energy Partners, L.P. Capex Litigation. Putative class action and derivative complaints were filed in the Court of Chancery in the State of Delaware against defendants Kinder Morgan Inc., Kinder Morgan G.P., Inc., and nominal defendant Kinder Morgan Energy Partners, L.P. on February 5, 2014 and March 27, 2014 captioned Slotoroff v. Kinder Morgan, Inc., Kinder Morgan G.P., Inc. et al (Case No. 9318) and Burns et al v. Kinder Morgan, Inc., Kinder Morgan G.P., Inc. et al (Case No. 9479) respectively. The cases were consolidated on April 8, 2014 (Consolidated Case No. 9318). The consolidated suit asserted claims both individually and on behalf of a putative class consisting of all public holders of KMEP units during the period of February 5, 2011 through the date of the filing of the complaints. The suit alleged direct and derivative causes of action for breach of the partnership agreement, breach of the duty of good faith and fair dealing, aiding and abetting, and tortious interference. Among other things, the suit alleged that defendants made a bad faith allocation of capital expenditures to expansion capital expenditures rather than maintenance capital expenditures for the alleged purpose of "artificially" inflating KMEP's distributions and growth rate. The suit alleged that hundreds of millions of dollars were distributed improperly and sought disgorgement of any distributions to KMGP, KMI and any related entities, beyond amounts that would have been distributed in accordance with a "good faith" allocation of maintenance capital expenses, together with other unspecified monetary damages including punitive damages and attorney fees. On August 14, 2015, the parties entered into a Stipulation and Agreement of Settlement pursuant to which defendants paid $27.5 million (the "Settlement Fund") to a class of former holders of KMEP common units, and all claims asserted in the consolidated suit are released. Following notice to the putative class members, on December 22, 2015, the Court approved the settlement which also includes a release of all claims asserted in the Walker litigation, and awarded attorneys' fees and litigation expenses to Plaintiffs' counsel to be paid from the Settlement Fund. All of the defendants believe they acted properly, in good faith, and in a manner consistent with any and all legal, contractual and equitable duties and obligations, including those contained in the Limited Partnership Agreement. "We entered into this settlement solely to avoid the substantial burden, expense, inconvenience and distraction of continued litigation and to resolve each of the released claims," the Company said. KINDER MORGAN: "Walker" Class Action Dismissed ---------------------------------------------- Kinder Morgan, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 16, 2016, for the fiscal year ended December 31, 2015, that the plaintiff in the case, Walker v. Kinder Morgan, Inc., Kinder Morgan G.P., Inc. et al., has filed a Notice of Nonsuit, with prejudice, which the Court subsequently granted, dismissing all claims in the action with prejudice. On March 6, 2014, a putative class action and derivative complaint was filed in the District Court of Harris County, Texas (Case No. 2014-11872 in the 215th Judicial District) against Kinder Morgan Inc., Kinder Morgan G.P., Inc., Kinder Morgan Management, LLC (KMR), Richard D. Kinder, Steven J. Kean, Ted A. Gardner, Gary L. Hultquist, Perry M. Waughtal and nominal defendant Kinder Morgan Energy Partners, L.P. (KMEP). The suit was filed by Kenneth Walker, a purported unit holder of KMEP, and alleged derivative causes of action for alleged violation of duties owed under the partnership agreement, breach of the implied covenant of good faith and fair dealing, "abuse of control" and "gross mismanagement" in connection with the calculation of distributions and allocation of capital expenditures to expansion capital expenditures and maintenance capital expenditures. The suit sought unspecified money damages, interest, punitive damages, attorney and expert fees, costs and expenses, unspecified equitable relief, and demanded a trial by jury. On January 5, 2016, Plaintiffs filed a Notice of Nonsuit, with prejudice, which the Court subsequently granted, dismissing all claims in the action with prejudice. LIBERTY GLOBAL: Indemnity Does Not Cover Losses from Class Action ----------------------------------------------------------------- Liberty Global plc said in its Form 10-K Report filed with the Securities and Exchange Commission on February 16, 2016, for the fiscal year ended December 31, 2015, that says the indemnity from the former owners of OneLink does not cover any potential losses resulting from a class action claim. The Company said, "In November 2012, we completed a business combination that resulted in, among other matters, the combination of our then operating subsidiary in Puerto Rico with San Juan Cable, LLC dba OneLink Communications (OneLink). In connection with this transaction (the OneLink Acquisition), Liberty Puerto Rico, as the surviving entity, became a party to certain claims previously asserted by the incumbent telephone operator against OneLink based on alleged conduct of OneLink that occurred prior to the OneLink Acquisition (the PRTC Claim). The PRTC Claim includes an allegation that OneLink acted in an anticompetitive manner in connection with a series of legal and regulatory proceedings it initiated against the incumbent telephone operator in Puerto Rico beginning in 2009. "In March 2014, a separate class action claim was filed in Puerto Rico (the Class Action Claim) containing allegations substantially similar to those asserted in the PRTC Claim, but alleging ongoing injury on behalf of a consumer class (as opposed to harm to a competitor). The former owners of OneLink have partially indemnified us through November 27, 2016 for any losses we may incur in connection with the PRTC Claim up to a specified maximum amount. However, the indemnity does not cover any potential losses resulting from the Class Action Claim. "Liberty Puerto Rico has recorded a provision and a related indemnification asset representing its best estimate of the net loss that it may incur upon the ultimate resolution of the PRTC Claim. While Liberty Puerto Rico expects that the net amount required to satisfy these contingencies will not materially differ from the estimated amount it has accrued, no assurance can be given that the ultimate resolution of these matters will not have an adverse impact on our results of operations, cash flows or financial position in any given period." Liberty Global plc (Liberty Global) is an international provider of video, broadband internet, fixed-line telephony and mobile services, serving 27.5 million customers across 14 countries at December 31, 2015. LIBERTY MUTUAL: Dismissal Bids in "Brewton" Case Granted -------------------------------------------------------- District Judge Marc T. Treadwell granted Defendants' motion to dismiss in the captioned case CHANDRA H. BREWTON Plaintiff, v. LIBERTY MUTUAL HOLDING COMPANY, INC., et al., Defendants, Civil Action No. 5:14-CV-436(MTT), (M.D. Ga.). Plaintiff Chandra Brewton seeks relief on behalf of herself and others similarly situated for the Defendants' alleged refusal to assess and pay damages for diminution in value when claims are made under their homeowners' insurance policies. Brewton alleges she "timely reported a claim for direct physical loss to her home resulting from water damage," but "in violation of Georgia law and in breach of their insurance contract" with Brewton, the Defendants failed to assess and pay damages for diminution in value of her property. Brewton's insurance policy was issued by Defendant First Liberty Insurance Corporation but Brewton seeks to hold Defendants Liberty Mutual Group, Inc. (LMGI), Liberty Mutual Insurance Co. (LMIC), and LMHC liable based on an alter ego, agency, and/or joint venture theory. LMGI and LMIC moved to dismiss the claims against them for failure to state a claim; and LMHC moved to dismiss the claims against it for lack of personal jurisdiction or, alternatively, for failure to state a claim. In his Order dated February 2, 2016 available at http://is.gd/pZiZf6from Leagle.com, Judge Treadwell granted Defendants' motion to dismiss for failure to state a claim. He also granted Holding's motion to dismiss for lack of personal jurisdiction or, alternatively, for failure to state a claim. It may be that as Brewton investigates her claims against First Liberty, Brewton can allege facts to support her alter ego theory. But the allegations Brewton now makes are insufficient, according to Judge Treadwell. There are also no allegations about any express agency agreement or other facts to suggest First Liberty was LMIC's and/or LMGI's agent, beyond a conclusory allegation that "at all relevant times herein, each Defendant acted in all respects as agent, apparent agent, and alter ego for each other Defendant and as agent, apparent agent, and alter ego of their ultimate parent company, LMHC." Therefore, the Court concludes Brewton has not sufficiently alleged an actual agency relationship between First Liberty and either LMGI or LMIC. Even if these allegations were sufficient to show LMIC and/or LMGI held First Liberty out as its agent, they do not plausibly suggest Brewton "justifiably relied on the care or skill of the alleged agent based upon the alleged principal's representation," according to Judge Treadwell. Though Brewton argues in her response that she entered into a contract with First Liberty based on "these representations," there is no such allegation in the complaint. Brewton has not alleged each party exercises mutual control over any joint undertaking but has instead specifically alleged LMIC and LMGI exercise control over First Liberty. Adam P. Princenthal, Esq. -- adam@princemay.com -- and C Cooper Knowles, Esq. of Law Office of C. Cooper Knowles, LLC; James C. Bradley, Esq. -- jbradley@rpwb.com -- Matthew A. Nickles, Esq. -- mnickles@rpwb.com -- Michael J. Brickman, Esq. -- mbrickman@rpwb.com -- Nina Fields Britt, Esq. -- nfields@rpwb.com -- of Richardson, Patrick, Westbrook and Brickman, LLC and Clinton W. Sitton, Esq. and Richard Kopelman, Esq. serve as counsel for Plaintiff Chandra H. Brewton Bowen Reichert Shoemaker, Esq. -- bowen.shoemaker@alston.com -- Cari K. Dawson, Esq. -- cari.dawson@alston.com -- Daniel F. Diffley, Esq. -- dan.diffley@alston.com -- and David B. Carpenter, Esq. -- david.carpenter@alston.com -- of Alston & Bird serve as counsel for Defendant Liberty Mutual Holding Company, Inc. LIFE TIME FITNESS: Conditional Class Certification Bid Denied ------------------------------------------------------------- District Judge Sharon Johnson Coleman denied the Plaintiffs' motion for conditional certification in the case, JARED STEGER, DAVID RAMSEY, JOHN CHRISPENS, and MAI HENRY, individually and on behalf of all others similarly situated, Plaintiffs, v. LIFE TIME FITNESS, INC., a Minnesota corporation, LTF CLUB MANAGEMENT COMPANY, LLC, a Delaware Limited Liability Company, and LTF CLUB OPERATIONS COMPANY, INC., a Minnesota corporation, and DOES 1 to 10, inclusive, Defendants, Case No. 14-cv-6056, (N.D. Ill.) Plaintiffs Jared Steger, David Ramsey, John Chrispens, and Mai Henry acting on behalf of themselves and all others similarly situated, filed an amended complaint against Defendants Life Time Fitness, Inc., LTF Club Management Company, LLC, LTF Club Operations Company, Inc., and ten unnamed individuals alleging claims under the Fair Labor Standards Act and California and Illinois state law. The Plaintiffs move for conditional certification of their proposed class and judicial notice to the class pursuant to section 216(b) of the Fair Labor Standards Act (FLSA). As the factual nexus for this class, Plaintiffs allege both that (1) Life Time had an uniform, unofficial policy of pressuring employees to work off the clock and (2) Life Time uniformly misclassified the class members as exempt from overtime compensation under 29 U.S.C. Section 207(i). In her Memorandum Opinion and Order dated January 21, 2016 available at http://is.gd/ZC9N4Efrom Leagle.com, Judge Coleman said the evidence shows that the proposed class was impacted, not by a uniform if unwritten corporate policy, but rather by the individual actions of specific department heads acting contrary to corporate policy, as moderated by each employee's individual decisions. The pressure that each PT felt to work off the clock depended on his or her location, his or her job title and responsibilities, his or her department head at the particular moment, his or her productivity, and his or her personal decisions. The putative Plaintiffs are not similarly situated with respect to whether they misreported their hours, when they did so, or how many hours they misreported. Moreover, the record reflects that each Plaintiff's compensation would vary based on the amount of commissioned hours they worked, their certification level, the time period in which they worked, and whether or not they were recouping previously earned draws. Thus, the application of section 7(i) would require highly individualized inquiries into each Plaintiff's hours and compensation that could not be accomplished by common proof but would instead require "the equivalent of mini-trials" for each Plaintiff. There is no identifiable nexus that binds the potential claims of the putative class such that hearing the claims collectively would promote fairness and judicial efficiency. Rather, the highly individualized inquiries which will be required would substantially eliminate the judicial efficiency, and the resulting benefit to the parties, traditionally attained through the collective treatment of claims. Accordingly, conditional certification of this lawsuit as a collective action is unwarranted. Jerusalem Beligan, Esq. -- jbeligan@bisnarchase.com -- of Bisnar Chase, LLP; Michael Louis Fradin, Esq. -- mike@fradinlaw.com -- of Michael L. Fradin, Attorney at Law; Branigan Andrew Robertson, Esq. -- branigan@brobertsonlaw.com -- of Branigan Robertson, Inc. serve as counsel for Plaintiff Jared Steger Alison Blair Crane, Esq. -- alison.crane@jacksonlewis.com -- Cynthia J Emry, Esq. -- emryc@jacksonlewis.com -- Eric Russell Magnus, Esq. -- Magnuse@jacksonlewis.com -- Monica Hersh Khetarpal, Esq. -- monica.khetarpal@jacksonlewis.com -- Nicky Jatana, Esq. -- jatanan@jacksonlewis.com -- and Paul DeCamp, Esq. -- decampp@jacksonlewis.com -- of Jackson Lewis P.C. serve as counsel for Defendant LTF Club Operations Company, Inc., Life Time Fitness, Inc. LTD FINANCIAL: "Vandemark" Suit Seeks Damages under TCPA -------------------------------------------------------- Jason Vandemark, and all others similarly-situated v. LTD Financial Services, LP, Case No. 7:16-cv-00589 (S.D.N.Y., January 26, 2016), seeks injunctive relief and statutory damages against the Defendant's conduct of negligently, knowingly, and willfully contacting Plaintiff and class members on their telephones using an autodialer and/or an artificial or prerecorded voice without their prior express written consent within the meaning of the Telephone Consumer Protection Act. LTD Financial Services, LP is a debt collector. This is an attempt to collect a debt and any information obtained will be used for that purpose. The Plaintiff is represented by: Joshua D. Arisohn, Esq. BURSOR & FISHER, P.A. 888 Seventh Avenue New York, NY 10019 Tel: (646) 837-7150 Fax: (212) 989-9163 E-Mail: jarisohn@bursor.com LYFT INC: Balks at Uber Technologies' Data Breach "Witch Hunt" -------------------------------------------------------------- David Ruiz, writing for Law.com, reports that Uber Technologies Inc.'s push to hold someone accountable for a 2014 data breach has focused heavily on an unnamed Lyft Inc. employee. Now Lyft is saying its market-leading rival has gone too far, launching a discovery effort that amounts to a "witch hunt." Lyft on Feb. 18 filed a motion for a protective order that would prevent Uber from learning more about a Lyft employee, who is not named in court papers but who has previously been named in the press as a high-ranking executive. Lawyers for Lyft said that Uber has ulterior motives in its numerous subpoenas for information that it filed to try to beat back a lawsuit by a driver who says he was a victim of the data breach. "Uber is abusing this court's discovery power to harass a third party, X, and to uncover internal, confidential, trade-secret information about Lyft -- X's employer and Uber's chief competitor," wrote Lyft's lawyers at Keker & Van Nest, entering their first appearance in the driver's lawsuit, in which the company is neither plaintiff or defendant. "The court must put a stop to Uber's unbounded discovery campaign, which now includes at least 11 third-party subpoenas targeting information from X and Lyft." Keker & Van Nest partner Rachael Meny -- rmeny@kvn.com -- who signed the brief, did not return a phone call seeking comment. Gibson, Dunn & Crutcher partner Michael Li-Ming Wong -- mwong@gibsondunn.com -- who defends Uber in the suit by the driver, declined to comment. A Lyft spokesperson provided the following statement: "There is no evidence that any Lyft employee downloaded the Uber driver information or database, or had anything to do with Uber's May 2014 data breach." The unnamed Lyft employee is the subject of the discovery even though Lyft is not a party to the litigation because Uber is attempting to find out the identity of those responsible for the 2014 breach that affected the information of up to 50,000 Uber drivers. Uber filed suit in federal court in San Francisco against a John Doe defendant, seeking to find the identity of anyone involved. A Reuters report in October said Uber identified its primary suspect as Lyft's chief technology officer, Chris Lambert. Lyft's attorneys only refer to the targeted worker as "employee X." Lyft says the broad-ranging, burdensome discovery" includes inspection of the employee's electronic devices, Google searches and communication between the employee and Lyft. U.S. Magistrate Judge Laurel Beeler approved the subpoenas in December, saying that "the 'breadth' of material they ask for, the 'time period' they cover, and the 'particularity' with which they describe the target material -- are, for the most part, appropriately limited to information related to the data breach that underlies the plaintiff's case." The active discovery efforts come even after Judge Beeler dismissed the former driver's suit, with leave to amend. In March, 2015, Sasha Antman, sued the company, claiming the breach allowed someone to fraudulently take out a credit card in his name. Uber's lawyers at Gibson Dunn argued that it was impossible to put the blame on Uber, as only names and driver's license numbers were compromised in the data breach. Judge Beeler agreed, saying that, "without a hack of information such as Social Security numbers, account numbers, or credit card numbers, there is no obvious, credible risk of identity theft that risks real, immediate injury." Judge Beeler said Mr. Antman could amend his complaint, but Uber moved to delay the litigation, rare for a defendant in a case. Keker & Van Nest attorneys called the tactic suspicious. "Lyft has not found a single reported case in which a defendant has won a motion to dismiss and then proceeded to stall dismissal of the case to conduct its own discovery," the Keker lawyers wrote. "Clearly, Uber saw an opportunity to exploit this case for its own purposes and proceeded to do so." In asking Beeler to rein in the discovery, Keker's Meny blasted Uber. "Uber is using this case, this plaintiff and this court's subpoena power to conduct its own witch-hunt, to distract attention from its long and storied history of data breaches, to harass X, and to dig into its competitor's internal, confidential and trade-secret information," Ms. Meny wrote. "Enough is enough." A hearing is set for March 24. M-I L.L.C.: Judge Won't Push Back Briefing Schedule in "Syed" ------------------------------------------------------------- In the case, SARMAD SYED, individually, and on behalf of all others similarly situated, ASHLEY BALFOUR, individually, and on behalf of all others similarly situated, Plaintiffs, v. M-I, L.L.C., a Delaware Limited Liability Company, doing business as M- I SWACO; and, DOES 1 through 10, inclusive, Defendants, Case No. 1:12-cv-01718-AWI-MJS (E.D. Cal.), Magistrate Judge Michael J. Seng denied the parties' stipulation to again modify the briefing schedule in the case. The parties have agreed to a 60-day continuance of the schedule. Specifically, they agreed that: (1) the deadline for filing a motion for class certification and, if applicable, motion for collective certification be continued from March 8, 2016 to May 6, 2016; (2) the deadline for Defendant's opposition to any motion for class certification and, if applicable, motion for collective certification be continued from May 11, 2016 to July 11, 2016; (3) the deadline for Plaintiffs to file any reply in support of their motion for class certification and, if applicable, motion for collective certification be continued from May 23, 2016 to July 22, 2016; and (4) the hearing on Plaintiffs' motion for class certification and, if applicable, collective certification be continued from June 10, 2016 to August 12, 2016 at 9:30 a.m. A copy of the Court's Feb. 22, 2016 Order is available at http://goo.gl/K0bESbfrom Leagle.com. Plaintiffs Sarmad Syed and Ashley Balfour are represented by: James Jason Hill, Esq. Michael D. Singer, Esq. Cohelan Khoury & Singer 605 "C" Street, Suite 200 San Diego, CA 92101-5305 Tel: 888-808-8358 Fax: 619-595-3000 E-mail: jhill@ckslaw.com msinger@ckslaw.com - and - Jeff Holmes Jeff Holmes, Esq. 3311 E Pico Blvd Los Angeles, CA 90023 Tel: 310-396-9045 - and - R Ira Spiro, Esq. Spiro Law Corp. 11377 W Olympic Blvd # 5 Los Angeles, CA 90064 Tel: 310-235-2468 M-I, L.L.C., is represented by: Alexander M. Chemers, Esq. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 400 South Hope Street, Suite 1200 Los Angeles, CA 90071 Tel: 213-330-0802 E-mail: alexander.chemers@ogletreedeakins.com - and - Jason S. Mills, Esq. Patricia S Riordan, Esq. Morgan, Lewis & Bockius LLP 300 South Grand Ave., 22nd Floor Los Angeles, CA 90071-3132 Tel: 213-612-7387 Fax: 213-612-2501 E-mail: jmills@morganlewis.com priordan@morganlewis.com M&G POLYMERS: 6th Cir. Remands "Tackett" Suit --------------------------------------------- Chief Judge R. Guy Cole Jr. remanded to the district court the case HOBERT FREEL TACKETT, et al., Plaintiffs-Appellees, v. M&G POLYMERS USA, LLC, et al., Defendants-Appellants, No. 12-3329, (6th Cir.) "This case returns to us for the third time, this time on remand from the Supreme Court, which abrogated the primary precedent on which our prior decisions relied," Judge Cole said. Those prior decisions are: M&G Polymers USA, LLC v. Tackett, 135 S.Ct. 926 (2015) (vacating Tackett v. M&G Polymers USA, LLC, 733 F.3d 589 (6th Cir. 2013) ("Tackett II"); abrogating Int'l Union, United Auto., Aerospace, & Agric. Implement Workers of Am. (UAW) v. Yard- Man, Inc., 716 F.2d 1476 (6th Cir. 1983)). On remand from the Supreme Court, the Appeals Circuit was directed to construe the parties' agreements using "ordinary principles of contract law." "Because prior factual determinations as to the parties' agreements were made in the 'shadow of Yard-Man,' we remand to the district court to make these determinations, in the first instance, in light of the Supreme Court's holding," Judge Cole said. Plaintiffs-Appellees are Ohio residents, retirees, and spouses of retirees (Retirees) from a plant owned by Defendant-Appellant M&G Polymers USA, LLC (M&G). From 1991 to 2005, the Retirees entered into several collective bargaining agreements (CBA) with M&G and its predecessors, which included Pension and Insurance Agreements (P&I) outlining retiree health care benefits. The P&Is provide that the employer will make "a full Company contribution towards the cost of [health care] benefits" for certain retirees. In December 2006, M&G announced that Retirees would, for the first time, be required to contribute to their health care costs or risk being dropped from the plan. Retirees filed a class action suit against M&G and its health care plans alleging that the Agreements under which they retired granted a vested right to lifetime contribution-free health care benefits. Defendants argued certain side letters or "cap letters" established caps they would pay towards Retirees' cost of benefits. Defendants further argued Retirees had always been expected to contribute to the cost of their health care benefits, but M&G never required them to do so until 2006. In his Opinion dated January 21, 2016 available at http://is.gd/edshzqfrom Leagle.com, Judge Cole remanded to the District Court to decide, among other things: (1) what documents make up the parties' Agreements; (2) whether reference to extrinsic evidence is appropriate; and (3) whether the Agreements, and any extrinsic evidence that may be considered, vests with Retirees lifetime contribution-free health care benefits. The district court should use ordinary principles of contract law to answer these questions, without a "thumb on the scale" in favor of either party, Judge Cole added. The Court of Appeals anticipates that the District Court will consider any admissible evidence that is probative of the Supreme Court's direction to construe the parties' Agreements under "ordinary principles of contract law." Judge Cole said Yard-Man has been abrogated, additional evidence or arguments may be relevant to an inquiry under ordinary contract principles. Allyson N. Ho, Esq. -- aho@morganlewis.com -- of Morgan, Lewis & Bockius LLP serve as counsel for Appellants Julia Penny Clark, Esq. of Bredhoff & Kaiser, P.L.L.C. serve as counsel for Appellees MARATHON: Faces Class Action Over Refinery Pollution Impacts ------------------------------------------------------------ Keith Matheny, writing for Detroit Free Press, reports that lawyers representing residents living next to the Marathon refinery in southwest Detroit filed a class action in U.S. District Court in Detroit on Feb. 22 alleging the refinery's fumes and noise cause a perpetual nuisance harming their lives. The lawsuit seeks in excess of $5 million, as well as a court order that Marathon cease the release of all contaminants into what it calls the "class area" -- residential neighborhoods within blocks of the factory bounded by Pleasant Street to the north; Schaefer Highway to the south; Bassett Street to the east and Edsel and South Patricia streets to the west. The lawsuit also calls for Marathon to abate its noise and odors; and for it to investigate, identify and remove all refinery contaminants from class members' properties. "This community has been one of the worst -- if not the worst -- polluted communities in the entire country, and has suffered as a result of that for a long time now," said attorney Chris Nidel, who is representing the Marathon neighbors. A defense the lawsuit will likely have to surmount is proving that the nuisances are coming from Marathon. The area is rife with steel factories, coal-fired power plants, and other polluting industrial uses. Marathon officials have maintained their emissions account for less than 3% of total "criteria pollutants" -- important pollutants tracked by the EPA -- in the area. "While we realize that there are additional sources of pollution within this general area, this community has been most directly impacted by Marathon -- which sits directly across the street from the majority of this community," Mr. Nidel said. Community conditions changed for the worse following Marathon's multi-billion-dollar expansion in recent years to process tar sands oil, a sludgy oil that includes a combination of clay, sand, water and bitumen, a heavy black viscous oil, Mr. Nidel said. Processing tar sands oil is a more involved procedure than processing more traditional heavy crude oil. "At this time, Marathon not only wants to maintain its emissions; it wants to increase them," he said. "The time has come for people to stand up for their clean air and their own health and safety." Marathon spokesman Jamal Kheiry said the company was unaware of a lawsuit being filed against it, and that it does not comment on pending litigation. The lawsuit lists Gregory Cole, a resident of the class area, as its lead plaintiff. "As a result of Defendants' acts and/or omissions, Gregory Cole has been subjected to noise, odors, vapors and fumes on his property and surrounding environment, thereby causing Gregory Cole to suffer damage to his property and personal finances, loss of the use and enjoyment of his property; significant annoyance and inconvenience; and destruction of his community," a portion of the lawsuit states. Another plaintiff in the class, Denise Taylor, 51, has lived on Patricia Street her entire life. "It's very, very bad living here," she said. "There's constant fumes, and the majority of the fumes are from 2 to 3 in the morning. You're breathing it in your system. You're tasting it in your sleep. It wakes you up." Ms. Taylor also described snow in her backyard topped with soot last winter. The refinery today is nothing like the much smaller facility she remembers as a girl. "Now it's like a city," she said. "They keep adding and building -- it's terrible." The Michigan Department of Environmental Quality is considering a permit to allow the Marathon refinery to increase its emissions of at least eight air pollutants at the southwest Detroit facility, as part of a project to prepare for a U.S. Environmental Protection Agency mandate requiring lower-sulfur fuel. The increased air pollutants would include sulfur dioxide, a health- harming contaminant that already exceeds EPA air quality standards in the area. Of the 22 additional tons of sulfur dioxide the Marathon Detroit refinery plans to add to the area's air each year, 16.5 tons are already allowed under its existing permit, and require no additional approval or review, according to the DEQ. The lawsuit's class now potentially involves about 1,000 residents, but could be expanded later, Mr. Nidel said. "We realize that the pollution from Marathon does not follow neighborhood boundaries. The definition of those class boundaries may expand and change over time as the facts in this case develop." Ms. Taylor said she knows what she's hoping to get out of the lawsuit. "I'm hoping they can come up with some kind of solution to make it livable here," she said. MDL 1917: Court Approves Thomson Displays Settlement ---------------------------------------------------- In the CATHODE RAY TUBE (CRT) ANTITRUST LITIGATION, No. CV-07- 5944-JST, MDL No. 1917, District Judge Jon S. Tigar approved a settlement with defendants Technologies Displays Americas LLC (formerly known as Thomson Displays Americas LLC) as set forth in a Settlement Agreement dated February 6, 2015. Judge Tigar issued a "FINAL JUDGMENT OF DISMISSAL WITH PREJUDICE AS TO DEFENDANT TECHNOLOGIES DISPLAYS AMERICAS LLC (FORMERLY KNoWN AS THOMSON DISPLAYS AMERICAS LLC)" dated Feb. 22, 2016, a copy of which is available at http://goo.gl/rNMlxgfrom Leagle.com. MDL 2580: Court Rules on Bid to Dismiss Payors' Amended Suits ------------------------------------------------------------- In the case, IN RE OPANA ER ANTRITRUST LITIGATION, MDL Docket No. 2580, Case No. 14 C 10150, (N.D. Ill.), District Judge Harry D. Leinenweber: -- denied Defendants' motion to dismiss a first amended consolidated complaint filed by direct purchaser plaintiffs; -- denied, in part, and granted, in part, Defendants' motion to dismiss the end-payor plaintiffs' first amended consolidated complaint is granted in part and denied in part. This lawsuit is one of many in the federal courts involving the application of the Supreme Court's decision in FTC v. Actavis, Inc., 133 S.Ct. 2223 (2013), to settlements between branded and generic pharmaceutical manufacturers. In this case, Direct Purchaser Plaintiffs (DPPs) brought claims under the Sherman Act, and Indirect, or End-Payor Purchaser Plaintiffs (EPPs) brought claims under state antitrust, consumer protection, and unjust enrichment laws. The DPPs and EPPs (collectively, the Plaintiffs) allege that Endo Health Solutions Inc., Endo Pharmaceuticals Inc., Penwest Pharmaceuticals Co. (collectively, Endo), and Impax Laboratories, Inc. (Impax) (collectively, the Defendants) delayed the entry of generic versions of Opana ER to the Oxymorphone ER Market by entering into an illegal reverse payment agreement to settle ongoing patent infringement litigation between Endo and Impax. The Endo-Impax Settlement consisted of two agreements entered into simultaneously: (1) the Settlement and License Agreement ("SLA"), and (2) the Development and Co-Promotion Agreement ("DCA"). Under the SLA, Impax agreed to delay its launch of generic Opana ER until the earlier of: (i) January 1, 2013, (ii) 30 days after a non-appealable federal court decision finding that Endo's patents were invalid or not infringed, or (iii) Endo's withdrawal of its patents from the Orange Book. Impax further agreed to refrain from challenging the validity or enforceability of the '933 and '456 patents, as well as the '250 patent, which Endo had not even accused Impax of infringing. In return, Endo covenanted not to sue Impax on, and granted Impax a license as to, any then-existing or subsequently obtained patents relating to Opana ER. Additionally, Endo agreed to refrain from launching an AG version of Opana ER during Impax's 180-day exclusivity period ("No-AG Agreement"). The Defendants filed two motions seek dismissal of DPPs' First Amended Consolidated Complaint and EPPs' First Amended Consolidated Complaint under FED. R. CIV. P. 12(b)(6). In his Memorandum Opinion and Order dated February 10, 2016 available at http://is.gd/9IVAg5from Leagle.com, Judge Leinenweber denied Defendants' motion to dismiss DPPS' first amended consolidated complaint. Defendants' motion to dismiss EPPs' first amended consolidated complaint is granted in part and denied in part. EPPs' antitrust claims under the state laws of Illinois, Puerto Rico, Rhode Island, Kansas, and Mississippi are dismissed with prejudice. EPPs' antitrust claims under Utah state law, and all of their consumer protection and unjust enrichment claims are dismissed with leave to replead within 21 days from the date of this memorandum opinion and order. The Court agrees with Plaintiffs that it is improper to view the components of the Endo-Impax Settlement in isolation. Plaintiffs allege that Endo and Impax drafted a sophisticated agreement, and acknowledging that the future was largely unpredictable, included multiple contingencies to account for possible market changes and ensure that Impax received payment for delaying the entry of its generic into the market. Although the form and amount of that payment were contingent on future occurrences, taking the Plaintiffs' allegations as true, it was certain at the time of the Endo-Impax Settlement that Impax would receive anywhere from $33 million to $49 million under the No AG-Agreement and an additional $10 million under the DCA. The Court also held that, although it may be true that Endo was free to compete with Impax in other areas of the market, that does not change the fact that the No-AG Agreement was a payment, possibly of great monetary value to Impax as the first-filing generic. Plaintiffs have sufficiently alleged that the Endo-Impax Settlement contained a reverse payment. The Court now considers whether this reverse payment was large and unjustified. Although not perfect, the Court cannot conclude simply from the absence of precise figures that the pleadings represent formulaic recitations of elements and allegations that fail to rise above the speculative. On the contrary, the complaints make specific allegations about the terms of the settlement and their relative value that are plausible on their face. Whether Plaintiffs can substantiate those allegations may be an issue for summary judgment or trial, but for purposes of the motions to dismiss, the allegations are sufficient. Plaintiffs have met their prima facie burden, and going forward, the burden shifts to Defendants to offer pro- competitive justifications for the reverse payment. The Court concludes that Plaintiffs have pleaded sufficiently that the reverse payment was large and unjustified. The Court concludes that Plaintiffs have stated a viable claim under Actavis. The Court denies Defendants' Motion to Dismiss DPPs' Complaint. The Court also denies Defendants' Motion to Dismiss EPPs' Complaint for failure to state an antitrust cause of action under Actavis. The Court now turns to Defendants' Motion to Dismiss EPPs' various state law claims. The Court denies Defendants' Motion to Dismiss EPPs' claims for lack of standing. The suitability of the named Plaintiffs as representatives of the class will be addressed at the class certification stage. The Court need not rule on the many specific arguments Defendants make regarding the individual state claims, because EPPS have not pleaded state law consumer protection or unjust enrichment claims sufficient to satisfy Rule 8 under Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Therefore, the Court dismisses EPPs' consumer protection and unjust enrichment claims, and grants leave to replead in a non-conclusory fashion. In Re, Opana ER Antitrust Litigation, represented by Lewis Scott Joanen -- scott@joanenlaw.com -- and James R. Dugan, II, The Dugan Law Firm, APLC. Rochester Drug Co-Operative, Inc., Plaintiff, represented by Andrew C. Curley, Berger & Montague, P.c., Archana Tamoshunas, Garwin Gerstein & Fisher LLp, David F. Sorensen, Berger & Montague, P.c., Joseph T. Lukens, Faruqi & Faruqi, Peter R. Kohn, Faruqi & Faruqi, LLP & Zachary David Caplan, Berger & Montague, P.C.. Value Drug Company, Plaintiff, represented by Bruce E. Gerstein, Garwin, Bronzaft, Gerstein & Fisher, David C. Raphael, Smith Segura & Raphael, LLP, Erin R Leger, Smith Segura & Raphael, Llp, Jonathan M Gerstein, Garwin Gerstein & Fisher Llp, Jordan M. Cramer, Law Offices of Jordan M. Cramer, PC, Joseph Opper, Garwin Gerstein & Fisher Llp, Miranda Y Jones, Heim, Payne & Chorush, Llp, Russell A Chorush, Heim, Payne & Chorush, Llp & Susan C Segura, Smith Segura & Raphael, Llp. Kim Mahaffay, Plaintiff, represented by Joseph R. Saveri, Joseph Saveri Law Firm, Joshua P. Davis, Joseph Saveri Law Firm, Inc., Lynne Marie Brennan, Krause, Kalfayan, Benink & Slavens, Llp, Matthew S. Weiler, Joseph Saveri Law Firm, Inc., Ralph B. Kalfayan, Krause, Kalfayan, Benink & Slavens, LLP & Ryan J. Mcewan, Joseph Saveri Law Firm, Inc.. Fraternal Order of Police, Miami Lodge 20 Insurance Trust Fund, Plaintiff, represented by Jayne Goldstein, Pomerantz Grossman Hufford Dahlstrom & Gross LLP & Michael Jerry Freed, Freed Kanner London & Millen, LLC. Massachusetts Bricklayers & Masons Health and Welfare Fund, Plaintiff, represented by Gregory Asciolla, Labaton Sucharow LLP- NY, Matthew J Perez, Labaton Sucharow Llp & Jay L Himes, Labaton Sucharow LLP. Plumbers & Pipefitters Local 178 Health & Welfare Trust Fund, Plaintiff, represented by Donald Lewis Sawyer, Freed Kanner London & Millen LLC, Michael Jerry Freed, Freed Kanner London & Millen, LLC, Robert J. Wozniak, Freed Kanner London & Millen, LLC & Steven A Kanner, Freed Kanner London & Millen, LLC. Wisconsin Masons' Health Care Fund, Plaintiff, represented by Michael Jerry Freed, Freed Kanner London & Millen, LLC. Pennsylvania Employees Benefit Trust Fund, Plaintiff, represented by Jeffrey L. Kodroff, Spector, Roseman & Kodroff, P.C., John Angelo Macoretta, Spector Roseman Kodroff & Willis, P.c. & Michael Jerry Freed, Freed Kanner London & Millen, LLC. Louisiana Health Service and Indemnity Company, Plaintiff, represented by Michael Jerry Freed, Freed Kanner London & Millen, LLC. Meijer, Inc., Plaintiff, represented by Meijer, Inc. Walgreen Co, Plaintiff, represented by Anna T Neill, Kenny Nachwalter P.A., David Lesht, Law Offices of Eugene M. Cummings, P.C., Lauren C Ravkind, Kenny Nachwalter P.A. & Scott E Perwin, Kenny, Nachwalter, Seymour, Arnold, Critchlow & Spector, P.A.. The Kroger Co., Plaintiff, represented by Anna T Neill, Kenny Nachwalter P.A., David Lesht, Law Offices of Eugene M. Cummings, P.C., Lauren C Ravkind, Kenny Nachwalter P.A. & Scott E Perwin, Kenny, Nachwalter, Seymour, Arnold, Critchlow & Spector, P.A.. Safeway Inc., Plaintiff, represented by Anna T Neill, Kenny Nachwalter P.A., David Lesht, Law Offices of Eugene M. Cummings, P.C., Lauren C Ravkind, Kenny Nachwalter P.A. & Scott E Perwin, Kenny, Nachwalter, Seymour, Arnold, Critchlow & Spector, P.A.. HEB Grocery Company L.P., Plaintiff, represented by Anna T Neill, Kenny Nachwalter P.A., David Lesht, Law Offices of Eugene M. Cummings, P.C., Lauren C Ravkind, Kenny Nachwalter P.A. & Scott E Perwin, Kenny, Nachwalter, Seymour, Arnold, Critchlow & Spector, P.A.. Albertsons LLC, Plaintiff, represented by Anna T Neill, Kenny Nachwalter P.A., David Lesht, Law Offices of Eugene M. Cummings, P.C., Lauren C Ravkind, Kenny Nachwalter P.A., Scott E Perwin, Kenny, Nachwalter, Seymour, Arnold, Critchlow & Spector, P.A., Anna T Neill, Kenny Nachwalter P.A., David Lesht, Law Offices of Eugene M. Cummings, P.C., Lauren C Ravkind, Kenny Nachwalter P.A. & Scott E Perwin, Kenny, Nachwalter, Seymour, Arnold, Critchlow & Spector, P.A.. Rite Aid Corporation, Plaintiff, represented by Eric L. Bloom, Hangley Aronchick Segal Pudlin Schiller, Barry L Refsin, Hangley Aronchick Segal Pudlin & Schiller, David Lesht, Law Offices of Eugene M. Cummings, P.C. & Rebuck L. Monica, Hangley Aronchick Segal Pudlin & Schiller. Rite Aid Hdqtrs. Corp., Plaintiff, represented by Barry L Refsin, Hangley Aronchick Segal Pudlin & Schiller, David Lesht, Law Offices of Eugene M. Cummings, P.C. & Rebuck L. Monica, Hangley Aronchick Segal Pudlin & Schiller. International Union of Operating Engineers, Local 138 Welfare Fund, Plaintiff, represented by Michael Jerry Freed, Freed Kanner London & Millen, LLC. Mary Davenport, Plaintiff, represented by Michael Jerry Freed, Freed Kanner London & Millen, LLC. End-Payor Plaintiffs, Plaintiff, represented by Jennings F. Durand, Dechert Llp. Impax Laboratories, Inc., Defendant, represented by Danielle R Foley, Venable Llp, James Douglas Baldridge, Venable Llp, Joanna Rubin Travalini, Winston & Strawn Llp, Kevin Fitzgerald Wolff, Winston & Strawn Llp, Lawrence R. Desideri, Winston & Strawn LLP, Lisa Jose Fales, Venable Llp & Maureen L Rurka, Winston & Strawn LLP. Defendants Endo Health Solutions Inc., Endo Pharmaceuticals Inc., and Penwest Pharmaceuticals Co., Defendant, represented by Christine C Levin, Dechert LLP, George Gabriel Gordon, Dechert Llp, Jennings F. Durand, Dechert Llp, Nathan E Hoffman, Dechert LLP & Quinn Colleen Shean, Dechert LLP. MDL 2672: 48 Class Suits v. Volkswagen et al. Transferred --------------------------------------------------------- Forty-eight class action lawsuits against Volkswagen Group of America Inc., et al., have been transferred to the U.S. District Court for the Northern District of California for coordinated or consolidated pretrial proceedings. The transfers are pursuant to the Transfer Order entered in In re: Volkswagen "Clean Diesel" Marketing, Sales Practices, and Products Liability Litigation, MDL No. 2672, on Dec. 8, 2015. The Hon. Charles R. Breyer oversees In re: Volkswagen "Clean Diesel" MDL, Case No. 15-MD-2672-CRB (JSC) (N.D. Calif.), and at http://www.cand.uscourts.gov/crb/vwmdlthe Court Clerk is making additional information about this proceeding available to practitioners and the public. Cases Transferred to MDL No. 2672 --------------------------------- Downing-Moore, et al. v. Volkswagen Group of America Inc., et al. Docket No. 3:15-cv-06017 (N.D. Cal., December 23, 2015) Case in other court: Oregon, 6:15-cv-01825 Plaintiffs' Counsel: Jennifer Lee Jonak, Esq. JONAK PUGH 388 Market Street, Suite 1300 San Francisco, CA 94111 Telephone: (415) 335-4435 Facsimile: (415) 360-2468 E-mail: jenny@jonak.com Romero v. Volkswagen Group of America, Inc. Docket No. 3:15-cv-06079 (N.D. Cal., December 28, 2015) Case in other court: Illinois Northern, 1:15-cv-09109 Plaintiff's Counsel: David L. Poindexter, Esq. John Richard Schleiter, Esq. Mark Stephen Grotefeld, Esq. GROTEFELD, HOFFMANN, SCHLEITER, GORDON & OCHOA LLP 311 South Wacker Drive, Suite 4500 Chicago, IL 60606 Telephone: (312) 551-0200 Facsimile: (312) 601-2402 E-mail: DPoindexter@ghlaw-llp.com jschleiter@ghlaw-llp.com mgrotefeld@ghlaw-llp.com Counsel to Volkswagen Group of America Inc.: James K. Toohey, Esq. Brian C. Langs, Esq. Garrett L. Boehm, Jr., Esq. JOHNSON & BELL LTD. 33 West Monroe Street, Suite 2700 Chicago, IL 60603 Telephone: (312) 372-0770 E-mail: toohey@jbltd.com langs@jbltd.com boehmg@jbltd.com Belliveau, et al. v. Volkswagen Group of America, Inc. Docket No. 3:15-cv-06005 (N.D. Cal., December 28, 2015) Case in other court: Ohio Northern, 1:15-cv-01973 Plaintiffs' Counsel: Edward W. Cochran, Esq. 20030 Marchmont Road Shaker Heights, OH 44122 Telephone: (216) 751-5546 Facsimile: (216) 751-6630 E-mail: edwardcochran@wowway.com - and - Thomas John Connick, Esq. David Mullen, Esq. CONNICK LAW, LLC 25550 Chagrin Blvd., Suite 101 Cleveland, OH 44122 Telephone: (216) 364-0512 Facsimile: (216) 609-3446 E-mail: tconnick@connicklawllc.com dmullen@connicklawllc.com Counsel to Volkswagen Group of America Inc.: Hugh J. Bode, Esq. REMINGER & REMINGER CO LPA 1400 Midland Building 101 Prospect Avenue West Cleveland, OH 44115 Telephone: (216) 687-1311 E-mail: hbode@reminger.com Steffensen, et al. v. Volkswagen Group of America, Inc. Docket No. 3:15-cv-06026 (N.D. Cal., December 28, 2015) Case in other court: Virginia Eastern, 1:15-cv-01218 Counsel to Plaintiffs Kirk Steffensen, Susan Tarrence, Terry Hight, Sarah Mutka, Mark Weber, David Winters, Alexander Valdes, David Mann, Joshua Miller, Susan Wall, Carl Johnson, Alexander Laskovski, Charles Hall, Rebecca Perlmutter, Joe Harrison, David Sibley, Matthew Heinly, Rachel Sullivan, Herb Yussim, Christopher Mitzak, Roberta Duboise, Jessica Alber and Laura Swenson: Gregory Yann Porter, Esq. BAILEY & GLASSER LLP 910 17th Street NW, Suite 800 Washington, DC 20006 Telephone: (202) 543-0226 Facsimile: (202) 463-2103 E-mail: gporter@baileyglasser.com - and - William David Dolan, III, Esq. WILLIAM D. DOLAN, III, PC 8270 Greensboro Dr., Suite 700 Tysons Corner, VA 22102 Telephone: (703) 584-8377 E-mail: wdolan@dolanlaw.net - and - Steve W. Berman, Esq. Thomas E. Loeser, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 1918 8th Avenue, Suite 3300 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594 E-mail: steve@hbsslaw.com toml@hbsslaw.com - and - Peter B. Fredman, Esq. LAW OFFICE OF PETER FREDMAN 125 University Ave., Suite 102 Berkeley, CA 94710 Telephone: (510) 868-2626 Facsimile: (510) 868-2627 E-mail: peter@peterfredmanlaw.com Counsel to Plaintiffs Donald Varley, Snow Proudlove, Richard Evans, Benjamin Luckett, Bradley Gregory, Stephanie Nafus, Elizabeth Fisher, and Gerry Nemet: Blair Gerard Brown, Esq. Paul Bernard Hynes, Jr., Esq. ZUCKERMAN SPAEDER LLP 1800 M Street NW, Suite 1000 Washington, DC 20036 Telephone: (202) 778-1829 Facsimile: (202) 822-8106 E-mail: bbrown@zuckerman.com phynes@zuckerman.com Counsel to Plaintiff The George Leon Family Trust: Mark Hanna, Esq. MURPHY ANDERSON PLLC 1701 K St. NW, Suite 210 Washington, DC 20006 Telephone: (202) 223-1057 Facsimile: (202) 223-8651 E-mail: mhanna@murphypllc.com Counsel to Plaintiffs Matthew Goldman, Michael Lessard and Abigail Nesbitt: Susan Mary Rotkis, Esq. CONSUMER LITIGATION ASSOCIATES 763 J Clyde Morris Boulevard, Suite 1A Newport News, VA 23601 Telephone: (757) 930-3660 Facsimile: (757) 930-3662 E-mail: srotkis@clalegal.com Counsel to Plaintiffs Mariah O'Brien, Charles Zehil, Sarah Collins, Cynthia Hurrle, Charlotte Kessy, Peter Brewitt, Amy M. Thomas, Ronald Sekul, Tom Assaf Abdalla, Cherie Shoquist and Khamsin Page: Daniel M. Cohen, Esq. CUNEO GILBERT & LADUCA, LLP 211 North Union Street, Suite 100 Alexandria, VA 22314 Telephone: (202) 789-3960 Facsimile: (202) 789-1813 E-mail: danielc@cuneolaw.com Counsel to Plaintiffs Wendy Ligeti, Meaghan Webster, John Strause, Sean T. O'Brien, Steve Struck, H. Peter Fester, John Rinehart, Grace Fritz, Thomas Mullen, Robert Henry, Marisa Garcia and Travis Boothe: Stephen Earl Baril, Esq. KAPLAN VOEKLER CUNNINGHAM & FRANK PLC 1401 East Cary Street Richmond, VA 23219 Telephone: (804) 823-4003 Facsimile: (804) 823-4099 E-mail: sbaril@kv-legal.com Counsel to Plaintiffs Peter Brewitt, Amy M. Thomas, Ronald Sekul and Tom Assaf Abdalla: David Wallace Stanley, Esq. CUNEO GILBERT & LADUCA LLP 211 North Union Street, Suite 100 Alexandria, VA 22314 Telephone: (202) 789-3960 Facsimile: (202) 789-1813 E-mail: davids@cuneolaw.com Counsel to Plaintiff Peter Brewitt: Robert J. Cynkar, Esq. MCSWEENEY CYNKAR & KACHOUROFF PLLC 3358 John Tree Hill Road Powhatan, VA 23139 Telephone: (703) 621-3300 Facsimile: (703) 759-3688 E-mail: rcynkar@mck-lawyers.com Counsel to Plaintiffs Michael E. Johnson, Sr., Michael E. Johnson, Jr., Rebecca L. Myers, Benjamin D. Auchter, Jeffrey A. Gerritsen, Timothy J. Myers and Noel E. Eisenstat: Michael Weitzner, Esq. COOPER & KIRK PLLC 1523 New Hampshire Avenue NW Washington, DC 20036 Telephone: (202) 220-9600 Facsimile: (202) 220-9601 E-mail: mweitzner@cooperkirk.com - and - William David Dolan, III, Esq. WILLIAM D. DOLAN, III, PC 8270 Greensboro Dr., Suite 700 Tysons Corner, VA 22102 Telephone: (703) 584-8377 E-mail: wdolan@dolanlaw.net Counsel to Consol Plaintiff City of St. Clair Shores Police and Fire Retirement System: Craig Crandall Reilly, Esq. RICHARDS MCGETTIGAN REILLY & WEST 1725 Duke St., Suite 600 Alexandria, VA 22314 Telephone: (703) 549-5353 E-mail: craig.reilly@ccreillylaw.com Counsel to Consol Plaintiffs Daniel Kolomeets-Darovsky, Lioudmila Kolomeets, Boris Darovsky, Jennifer K. Green, Stephanie R. Heinatz and Rudolph B. Heinatz, III: Walter Dekalb Kelley, Jr., Esq. JONES DAY 51 Louisiana Ave. NW Washington, DC 20001 Telephone: (202) 879-3939 Facsimile: (202) 626-1700 E-mail: wdkelley@jonesday.com - and - William Wesley Coleman Harty, Esq. PATTEN WORNOM HATTEN DIAMONSTEIN LC 12350 Jefferson Ave., Suite 300 Newport News, VA 23602 Telephone: (757) 223-4500 E-mail: wharty@pwhd.com Counsel to Consol Plaintiffs Gregory Shalov, Amanda Heidel and Peter Warren: Steven Jeffrey Toll, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Ave. NW Suite 500, West Tower Washington, DC 20005-3965 Telephone: (202) 408-4600 E-mail: stoll@cohenmilstein.com Counsel to Consol Plaintiff Jeanine Butler: Edward Kyle McNew, Esq. John Gregory Webb, Esq. MICHIEHAMLETT PLLC 500 Court Square, Suite 300 P. O. Box 298 Charlottesville, VA 22902 Telephone: (434) 951-7200 Facsimile: (434) 951-7218 E-mail: kmcnew@michiehamlett.com gwebb@michiehamlett.com Counsel to Consol Plaintiffs Becky Hensgens and Douglas Pennebaker: Andrew Mitchell Hendrick, Esq. SHUTTLEWORTH RULOFF SWAIN HADDAD & MORECOCK PC 317 30th Street Virginia Beach, VA 23451 Telephone: (757) 671-6012 Facsimile: (757) 671-6004 E-mail: ahendrick@srgslaw.com Counsel to Consol Plaintiffs Maria Bourn, David Watson, Mark Schumacher, Stephen Verner, Ericsson Broadbent and The Center for Auto Safety: Bernard Joseph DiMuro, Esq. Nina J. Ginsberg, Esq. DIMURO GINSBERG PC 1101 King Street, Suite 610 Alexandria, VA 22314-2956 Telephone: (703) 684-4333 Facsimile: (703) 548-3181 E-mail: bdimuro@dimuro.com nginsberg@dimuro.com Counsel to Consol Plaintiffs Mark Fiddler and China Terrell: Leonard Anthony Bennett, Esq. CONSUMER LITIGATION ASSOCIATES, P.C. 12515 Warwick Boulevard, Suite 100 Newport News, VA 23606 Telephone: (757) 930-3660 Facsimile: (757) 930-3662 E-mail: lenbennett@clalegal.com - and - Matthew J. Erausquin, Esq. CONSUMER LITIGATION ASSOCIATES, P.C. 1800 Diagonal Road, Suite 600 Alexandria, VA 22314 Telephone: (703) 273-7770 Facsimile: (888) 892-3512 E-mail: matt@clalegal.com Counsel to Consol Plaintiff David Whitcomb: James Wells Harrell, Esq. BOIES SCHILLER AND FLEXNER LLP 5301 Wisconsin Ave. NW, Suite 800 Washington, DC 20015-2015 Telephone: (202) 237-2727 E-mail: wharrell@bsfllp.com Consol Plaintiffs Laura McNeil, Patrick Cutler, Amy Nelson, Alison Russo, Steven Weise, John Impeduglia and Arthur Thexton, and Movant Arkansas State Highway Employees Retirement System: Susan Rebbeca Podolsky, Esq. THE LAW OFFICES OF SUSAN R. PODOLSKY 1800 Diagnal Road, Suite 600 Alexandria, VA 22314 Telephone: (571) 366-1702 Facsimile: (703) 647-6009 E-mail: spodolsky@podolskylaw.com Counsel to Consol Plaintiffs Patricia A. Bonney, Ryan Blitstein and Jonathan Goslin: Nathan Michael Cihlar, Esq. STRAUS AND BOIES LLP 4041 University Dr., 5th Floor Fairfax, VA 22030 Telephone: (703) 764-8700 E-mail: ncihlar@straus-boies.com Counsel to Consol Plaintiff Sarah Bowlin: Francis J. Balint, Jr., Esq. BONNETT FAIRBOURN FRIEDMAN & BALINT PC 4023 Chain Bridge Road, Suite 4 Fairfax, VA 22030 Telephone: (602) 776-5903 Facsimile: (602) 274-1199 E-mail: fbalint@bffb.com Counsel to Consol Plaintiff Frederic Press: Robert Olin Wilson, Esq. WILSON LAW PLC 2 South Main Street, Suite B Harrisonburg, VA 22802 Telephone: (540) 430-0122 E-mail: robert@thewilsonlaw.com Counsel to Consol Plaintiffs Cleveland University, formerly known as Cleveland Chiropractic College, and The Cleveland Chiropractic College Foundation, and Movant Volkswagen Investor Group: Joshua Seth Devore, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Ave., NW, Suite 500, West Tower Washington, DC 20005-3965 Telephone: (202) 408-4600 Facsimile: (202) 408-4699 E-mail: jdevore@cohenmilstein.com Counsel to Consol Plaintiffs Bill O'Brien and Dan Maldonado: Peter Andrew Miller, Esq. Thomas Francis DellaFera, Jr., Esq. MILLER LEGAL LLC 175 S Pantops Drive, Third Floor Charlottesville, VA 22911 Telephone: (434) 529-6909 E-mail: pmiller@millerlegalllc.com tdellafera@millerlegalllc.com Counsel to Consol Plaintiffs Mark Pomerantz and Tiffany Ford: William Boyle Porter, Esq. BLANKINGSHIP & KEITH PC 4020 University Dr., Suite 300 Fairfax, VA 22030 Telephone: (703) 691-1235 E-mail: wporter@blankeith.com Counsel to Volkswagen Group of America Inc.: Casey Erin Lucier, Esq. Seth Abram Schaeffer, Esq. Christopher Edward Trible, Esq. Kenneth Abrams, Esq. Stanley Abbott Roberts, Esq. MCGUIREWOODS LLP Gateway Plaza 800 East Canal Street Richmond, VA 23219 Telephone: (804) 775-1000 Facsimile: (804) 775-1061 E-mail: clucier@mcguirewoods.com sschaeffer@mcguirewoods.com ctrible@mcguirewoods.com kabrams@mcguirewoods.com sroberts@mcguirewoods.com - and - Howard Feller, Esq. MCGUIRE WOODS BATTLE & BOTHE LLP 901 East Gary St. One James Center Richmond, VA 23219-4030 Telephone: (804) 775-4393 Facsimile: (804) 698-2051 E-mail: hfeller@mcguirewoods.com - and - Charles William McIntyre, Jr., Esq. MCGUIREWOODS LLP 1750 Tysons Blvd., Suite 1800 McLean, VA 22102-3915 Telephone: (703) 712-5000 Facsimile: (202) 828-2967 E-mail: cmcintyre@mcguirewoods.com Counsel to Defendant Lynette Brady: David Michael Kopstein, Esq. KOPSTEIN & ASSOCIATES PC 8633 Cross Chase Court Fairfax, VA 22039 Telephone: (301) 552-3330 Facsimile: (301) 552-2170 E-mail: dkopstein@cox.net Counsel to Consol Defendant Michael Horn Lisa Manning, Esq. SCHERTLER AND ONORATO LLP 575 7th Street NW, Suite 300 South Washington, DC 20004 Telephone: (202) 628-4199 Facsimile: (202) 628-4177 E-mail: LManning@SchertlerLaw.com Counsel to Movants Chester County Employees Retirement Fund, Delaware County Employees Retirement System, and Charter Township of Clinton Police and Fire Retirement System: Craig Crandall Reilly, Esq. RICHARDS MCGETTIGAN REILLY & WEST 1725 Duke St., Suite 600 Alexandria, VA 22314 Telephone: (703) 549-5353 E-mail: craig.reilly@ccreillylaw.com Gary Arabian v. Volkswagen Group of America, Inc., et al. Docket No. 3:15-cv-06128 (N.D. Cal., December 28, 2015) Case in other court: California Central, 2:15-cv-09132 Plaintiff's Counsel: Daniel Z. Srourian, Esq. SROURIAN LAW FIRM 3440 Wilshire Boulevard, Suite 915 Los Angeles, CA 90010 Telephone: (310) 601-3131 Facsimile: (310) 388-8444 E-mail: daniel@slfla.com - and - Heleni Eugenia Suydam, Esq. 1729 Lake St. Huntington Beach, CA 92648 Telephone: (310) 617-3719 Facsimile: (714) 536-1128 E-mail: lenislaw@aol.com - and - Kris Demirjian, Esq. SANDS AND ASSOCIATES 232 North Canon Drive, 1st Floor Beverly Hills, CA 90210 Telephone: (310) 859-6644 Facsimile: (310) 492-0397 E-mail: sandslaw@sandslaw.net - and - Leonard S. Sands, Esq. 9606 Santa Monica Blvd., Third Floor Beverly Hills, CA 90210 Telephone: (310) 859-6644 Facsimile: (310) 492-0397 E-mail: sandslaw@gte.net Counsel to Volkswagen Group of America Inc.: Andrew Zachary Edelstein, Esq. John Nadolenco, Esq. Neil Michael Soltman, Esq. Matthew Henry Marmolejo, Esq. MAYER BROWN LLP 350 South Grand Avenue, Suite 2500 Los Angeles, CA 90071 Telephone: (213) 229-9500 Facsimile: (213) 625-0248 E-mail: AEdelstein@mayerbrown.com jnadolenco@mayerbrown.com nsoltman@mayerbrown.com mmarmolejo@mayerbrown.com Flieger v. Volkswagon Group of America, Inc. Docket No. 3:15-cv-06015 (N.D. Cal., December 28, 2015) Case in other court: Illinois Southern, 3:15-cv-01177 Plaintiff's Counsel: Roger Denton, Esq. SCHLICHTER BOGARD AND DENTON, LLP 100 South 4th Street St. Louis, MO 63102 Telephone: (314) 621-6115 E-mail: rdenton@uselaws.com Counsel to Volkswagen Group of America Inc.: James K. Toohey, Esq. Brian C. Langs, Esq. Garrett L. Boehm, Jr., Esq. JOHNSON & BELL LTD. 33 West Monroe Street, Suite 2700 Chicago, IL 60603 Telephone: (312) 372-0770 E-mail: toohey@jbltd.com langs@jbltd.com boehmg@jbltd.com Bryan, et al. v. Volkswagen Group of America, Inc., et al. Docket No. 3:15-cv-06113 (N.D. Cal., December 28, 2015) Case in other court: Illinois Northern, 1:15-cv-10541 Plaintiffs' Counsel: Alexis Garmey Chardon, Esq. Jacob Michael Hamann, Esq. Nathan P. Eimer, Esq. Vanessa G. Jacobsen, Esq. EIMER STAHL LLP 224 S. Michigan Avenue, Suite 1100 Chicago, IL 60604 Telephone: (312) 660-7640 Facsimile: (312) 692-1718 E-mail: achardon@eimerstahl.com jhamann@eimerstahl.com neimer@eimerstahl.com vjacobsen@eimerstahl.com Bonney, et al. v. Volkswagen AG, et al. Docket No. 3:15-cv-06036 (N.D. Cal., December 28, 2015) Case in other court: Virginia Eastern, 1:15-cv-01323 Plaintiffs' Counsel: Nathan Michael Cihlar, Esq. STRAUS & BOIES LLP 4041 University Dr., 5th Floor Fairfax, VA 22030 Telephone: (703) 764-8700 E-mail: ncihlar@straus-boies.com Howland v. Volkswagen Group of America, Inc. Docket No. 3:15-cv-06035 (N.D. Cal., December 28, 2015) Case in other court: Massachusetts, 1:15-cv-13805 Plaintiff's Counsel: David Pastor, Esq. PASTOR LAW OFFICE LLP 63 Atlantic Avenue, 3rd Floor Boston, MA 02110 Telephone: (617) 742-9700 Facsimile: (617) 742-9701 E-mail: dpastor@pastorlawoffice.com Counsel to Volkswagen Group of America Inc.: Andrew R. Levin, Esq. David A. Barry, Esq. SUGARMAN ROGERS BARSHAK & COHEN, PC 101 Merrimac Street, 9th Floor Boston, MA 02114 Telephone: (617) 227-3030 Facsimile: (617) 523-4001 E-mail: levin@srbc.com barry@srbc.com Anela Kelani De Britz, et al. v. Volkswagen Group of America, Inc., et al. Docket No. 3:15-cv-06101 (N.D. Cal., December 28, 2015) Case in other court: California Central, 2:15-cv-08815 Plaintiffs' Counsel: Kristen-Leigh Myles, Esq. Andre E. Jardini, Esq. KNAPP PETERSEN AND CLARKE 550 North Brand Boulevard, Suite 1500 Glendale, CA 91203 Telephone: (818) 547-5000 Facsimile: (818) 547-5329 E-mail: klm@kpclegal.com aej@kpclegal.com - and - Michael Hagop Boyamian, Esq. Armand Raffi Kizirian, Esq. LAW OFFICES OF THOMAS W. FALVEY 550 N. Brand Blvd., Suite 1500 Glendale, CA 91203 Telephone: (818) 547-5200 Facsimile: (818) 500-9307 E-mail: mike.falveylaw@gmail.com armand.falveylaw@gmail.com - and - Thomas Walker Falvey, Esq. LAW OFFICES OF THOMAS W. FALVEY 301 North Lake Avenue, Suite 800 Pasadena, CA 91101 Telephone: (626) 795-0205 Facsimile: (626) 795-3096 E-mail: thomaswfalvey@gmail.com Johnson, et al. v. Volkswagen Group of America, Inc. Docket No. 3:15-cv-06016 (N.D. Cal., December 28, 2015) Case in other court: Virginia Eastern, 1:15-cv-01225 Plaintiffs' Counsel: Michael Weitzner, Esq. COOPER & KIRK PLLC 1523 New Hampshire Avenue NW Washington, DC 20036 Telephone: (202) 220-9600 Facsimile: (202) 220-9601 E-mail: mweitzner@cooperkirk.com - and - William David Dolan, III, Esq. WILLIAM D. DOLAN, III, PC 8270 Greensboro Dr., Suite 700 Tysons Corner, VA 22102 Telephone: (703) 584-8377 E-mail: wdolan@dolanlaw.net Counsel to Volkswagen Group of America Inc.: Kenneth Abrams, Esq. MCGUIRE WOODS LLP Gateway Plaza 800 East Canal Street Richmond, VA 23219 Telephone: (804) 775-4771 Facsimile: (757) 640-3950 E-mail: kabrams@mcguirewoods.com Cynthia Rios v. Volkswagen Group of America, Inc. Docket No. 3:15-cv-06100 (N.D. Cal., December 28, 2015) Case in other court: California Central, 2:15-cv-08016 Plaintiff's Counsel: Edrik Mehrabi, Esq. George S. Azadian, Esq. AZADIAN LAW GROUP PC 790 East Colorado Boulevard, 9th Floor Pasadena, CA 91101 Telephone: (626) 449-4944 Facsimile: (626) 628-1722 E-mail: edrik@azadianlawgroup.com george@azadianlawgroup.com Gentry v. Volkswagen Group of America, Inc. Docket No. 3:15-cv-06006 (N.D. Cal., December 28, 2015) Case in other court: Tennessee Middle, 3:15-cv-01107 Plaintiff's Counsel: Michael L. Russell, Esq. GILBERT RUSSELL MCWHERTER PLC 341 Cool Springs Boulevard, Suite 230 Franklin, TN 37067 Telephone: (615) 354-1144 E-mail: mrussell@gilbertfirm.com - and - Donald J. Cazayoux, Jr., Esq. CAZAYOUX EWING, LLC 257 Maximilian Street Baton Rouge, LA 70802 Telephone: (225) 650-7400 Facsimile: (225) 650-7401 E-mail: don@cazayouxewing.com Kettley, et al. v. Volkswagen Group of America, Inc. Docket No. 3:15-cv-06089 (N.D. Cal., December 28, 2015) Case in other court: Hawaii, 1:15-cv-00386 Plaintiffs' Counsel: Andrew James Lautenbach, Esq. Judith Ann Pavey, Esq. Sharon V. Lovejoy, Esq. Terence J. O'Toole, Esq. STARN O'TOOLE MARCUS AND FISHER 733 Bishop Street, Suite 1900 Honolulu, HI 96813 Telephone: (808) 537-6100 Facsimile: (808) 537-5434 E-mail: alautenbach@starnlaw.com jpavey@starnlaw.com slovejoy@starnlaw.com totoole@starnlaw.com Stolz v. Volkswagen Group of America, Inc. Docket No. 3:15-cv-06091 (N.D. Cal., December 28, 2015) Case in other court: Rhode Island, 1:15-cv-00407 Plaintiff's Counsel: Jonathan D. Orent, Esq. Robert J. McConnell, Esq. Vincent L. Greene, IV, Esq. MOTLEY RICE LLC 321 South Main St., Suite 200 Providence, RI 02903 Telephone: (401) 457-7700 Facsimile: (401) 457-7708 E-mail: jorent@motleyrice.com bmcconnell@motleyrice.com vgreene@motleyrice.com Counsel to Volkswagen Group of America Inc.: Stephen P. Cooney, Esq. Gerald C. DeMaria, Esq. HIGGINS, CAVANAGH & COONEY, LLP The Hay Building 123 Dyer Street Providence, RI 02903 Telephone: (401) 633-4388 Facsimile: (401) 273-8780 E-mail: scooney@hcc-law.com gdemaria@hcc-law.com Rory Stewart v. Volkswagen Group of America, et al. Docket No. 3:15-cv-06131 (N.D. Cal., December 28, 2015) Case in other court: California Central, 8:15-cv-01736 Plaintiff's Counsel: Ashleigh E. Aitken, Esq. Darren OLeary Aitken, Esq. Wylie A. Aitken, Esq. AITKEN AITKEN COHN 3 MacArthur Place, Suite 800 Santa Ana, CA 92702 Telephone: (714) 434-1424 Facsimile: (714) 434-3600 E-mail: ashleigh@aitkenlaw.com darren@aitkenlaw.com wylie@aitkenlaw.com Midland Industries, Inc. vs. Volkswagen Group of America, Inc. Docket No. 3:15-cv-06077 (N.D. Cal., December 28, 2015) Case in other court: Illinois Northern, 1:15-cv-08610 Plaintiff's Counsel: Alex Stepick, IV, Esq. STEPICK LAW, LLC 2260 North Elston Avenue, 2nd Floor South Chicago, IL 60614 Telephone: (773) 245-3884 E-mail: alex@stepicklaw.com - and - Adam Edward Urbanczyk, Esq. PROGRESSIVE LAW GROUP, LLC 1 N. LaSalle St., Suite 2255 Chicago, IL 60654 Telephone: (312) 787-2717 E-mail: adam@progressivelaw.com - and - Mark Anthony Bulgarelli, Esq. PROGRESSIVE LAW GROUP LLC 140 S. Dearborn Street, Suite 315 Chicago, IL 60603 Telephone: (312) 787-2717 E-mail: markb@progressivelaw.com Counsel to Volkswagen Group of America Inc.: James K. Toohey, Esq. Brian C. Langs, Esq. Garrett L. Boehm, Jr., Esq. JOHNSON & BELL LTD. 33 West Monroe Street, Suite 2700 Chicago, IL 60603 Telephone: (312) 372-0770 E-mail: toohey@jbltd.com langs@jbltd.com boehmg@jbltd.com Sun Jung, et al. v. Volkswagen Group of America Inc., et al. Docket No. 3:15-cv-06119 (N.D. Cal., December 28, 2015) Case in other court: California Central, 2:15-cv-08300 Plaintiffs' Counsel: John B. Quinn, Esq. Shon Morgan, Esq. QUINN EMANUEL URQUHART & SULLIVAN, LLP 865 South Figueroa Street, 10th Floor Los Angeles, CA 90017-2543 Telephone: (213) 624-7707 Facsimile: (213) 624-0643 E-mail: johnquinn@quinnemanuel.com shonmorgan@quinnemanuel.com - and - Karin Kramer, Esq. QUINN EMANUEL URQUHART AND SULLIVAN LLP 50 California Street, 22nd Floor San Francisco, CA 94111 Telephone: (415) 875-6600 Facsimile: (415) 875-6700 E-mail: karinkramer@quinnemanuel.com - and - Jong Sun Ha, Esq. Chin Ahn Ha & Seo, 8th Floor 1490-25 Seocho-Dong, Seocho Seoul 137-073 South Korea - and - Rieu Kim, Esq. Thomas Charles Villalon, Esq. BARUN LAW LLC 92 Gil 7 Teheran-ro Gangnam-gu, Seoul South Korea E-mail: rieu.kim@barunlaw.com tom.villalon@barunlaw.com - and - Thomas E. Loeser, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 1918 Eighth Avenue, Suite 3300 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594 E-mail: toml@hbsslaw.com Jason Miller, et al. v. Volkswagen Group of America Inc., et al. Docket No. 3:15-cv-06099 (N.D. Cal., December 28, 2015) Case in other court: California Central, 2:15-cv-07650 Plaintiffs' Counsel: David Seabold Casey, Jr., Esq. Jeremy Keith Robinson, Esq. Wendy M. Behan, Esq. Gayle M. Blatt, Esq. CASEY GERRY SCHENK FRANCAVILLA BLATT & PENFIELD LLP 110 Laurel Street San Diego, CA 92101-1486 Telephone: (619) 238-1811 Facsimile: (619) 544-9232 E-mail: dcasey@cglaw.com jrobinson@cglaw.com wbehan@cglaw.com gmb@cglaw.com Edwards v. Volkswagen Group of America Inc. Docket No. 3:15-cv-06080 (N.D. Cal., December 28, 2015) Case in other court: South Carolina, 2:15-cv-04003 Plaintiff's Counsel: Jodi W. Flowers, Esq. Kevin R. Dean, Esq. MOTLEY RICE LLC 28 Bridgeside Boulevard Charleston, SC 29403 Telephone: (843) 216-9000 Facsimile: (843) 216-9027 E-mail: jflowers@motleyrice.com kdean@motleyrice.com - and - Joseph F. Rice, Esq. 28 Bridgeside Blvd. Mt. Pleasant, SC 29464 Telephone: (843) 216-9159 E-mail: jrice@motleyrice.com Counsel to Volkswagen Group of America Inc.: Charles J. Baker, III, Esq. Dana Woodrum Lang, Esq. Henry Buist Smythe, Jr., Esq. WOMBLE CARLYLE SANDRIDGE AND RICE PO Box 999 Charleston, SC 29402 Telephone: (843) 722-3400 Facsimile: (843) 723-7398 E-mail: cbaker@wcsr.com dlang@wcsr.com hsmythe@wcsr.com Marc Federman v. Volkswagen Group of America, Inc., et al. Docket No. 3:15-cv-06138 (N.D. Cal., December 28, 2015) Case in other court: California Central, 2:15-cv-07655 Plaintiff's Counsel: Byron T. Ball, Esq. THE BALL LAW FIRM, L.L.P. 10866 Wilshire Boulevard, Suite 1400 Los Angeles, CA 90024 Telephone: (310) 446-6148 Facsimile: (310) 441-5386 E-mail: btb@balllawllp.com George Elder v. Volkswagen Group of America, Inc., et al. Docket No. 3:15-cv-06081 (N.D. Cal., December 28, 2015) Case in other court: California Central, 2:15-cv-07716 Plaintiff's Counsel: Alexandra T. Steele, Esq. Joseph Robert Finnerty, Esq. Thomas V. Girardi, Esq. GIRARDI KEESE 1126 Wilshire Blvd. Los Angeles, CA 90017 Telephone: (213) 977-0211 Facsimile: (213) 481-1554 E-mail: asteele@girardikeese.com jfinnerty@girardikeese.com tgirardi@girardikeese.com - and - Douglas L. Johnson, Esq. Jordanna G. Thigpen, Esq. Neville Lawrence Johnson, Esq. JOHNSON AND JOHNSON LLP 439 North Canon Drive, Suite 200 Beverly Hills, CA 90210 Telephone: (310) 975-1080 Facsimile: (310) 975-1095 E-mail: djohnson@jjllplaw.com jthigpen@jjllplaw.com njohnson@jjllplaw.com Cash Yi v. Volkswagen AG, et al. Docket No. 3:15-cv-06097 (N.D. Cal., December 28, 2015) Case in other court: California Central, 2:15-cv-08327 Plaintiff's Counsel: Howard K. Alperin, Esq. Maxwell Michael Blecher, Esq. BLECHER COLLINS PEPPERMAN AND JOYE PC 515 South Figueroa Street, Suite 1750 Los Angeles, CA 90071 Telephone: (213) 622-4222 Facsimile: (213) 622-1656 E-mail: halperin@blechercollins.com mblecher@blechercollins.com Boisselle, et al. v. Volkswagen Group of America, Inc., et al. Docket No. 3:15-cv-06078 (N.D. Cal., December 28, 2015) Case in other court: Illinois Northern, 1:15-cv-09168 Plaintiffs' Counsel: Alexis Garmey Chardon, Esq. Jacob Michael Hamann, Esq. Nathan P. Eimer, Esq. Vanessa G. Jacobsen, Esq. EIMER STAHL LLP 224 S. Michigan Avenue, Suite 1100 Chicago, IL 60604 Telephone: (312) 660-7640 Facsimile: (312) 692-1718 E-mail: achardon@eimerstahl.com jhamann@eimerstahl.com neimer@eimerstahl.com vjacobsen@eimerstahl.com Counsel to Volkswagen Group of America Inc. and Audi of America Inc.: James K. Toohey, Esq. Brian C. Langs, Esq. Garrett L. Boehm, Jr., Esq. JOHNSON & BELL LTD. 33 West Monroe Street, Suite 2700 Chicago, IL 60603 Telephone: (312) 372-0770 E-mail: toohey@jbltd.com langs@jbltd.com boehmg@jbltd.com Allen Davis v. Volkswagen Group of America Inc., et al. Docket No. 3:15-cv-06102 (N.D. Cal., December 28, 2015) Case in other court: California Central, 8:15-cv-01571 Plaintiff's Counsel: Michael I. Katz, Esq. Wayne R. Gross, Esq. Alan Greenberg, Esq. GREENBERG GROSS LLP 650 Town Center Drive, Suite 1750 Costa Mesa, CA 92626 Telephone: (949) 383-2800 Facsimile: (949) 383-2801 E-mail: mkatz@ggtriallaw.com wgross@ggtriallaw.com agreenberg@ggtriallaw.com Counsel to Volkswagen Group of America Inc.: Matthew Henry Marmolejo, Esq. MAYER BROWN LLP 350 South Grand Avenue, Suite 2500 Los Angeles, CA 90071 Telephone: (213) 229-9500 Facsimile: (213) 625-0248 E-mail: mmarmolejo@mayerbrown.com Gregg A. Klein v. Volkswagen Group of America Inc., et al. Docket No. 3:15-cv-06121 (N.D. Cal., December 28, 2015) Case in other court: California Central, 2:15-cv-07570 Plaintiff's Counsel: Allen Press, Esq. Joe D. Jacobson, Esq. Matthew B. Vianello, Esq. JACOBSON PRESS AND FIELDS P.C. 168 N. Meramec Avenue, Suite 150 Clayton, MO 63105 Telephone: (314) 899-9789 Facsimile: (314) 899-0282 E-mail: Press@ArchCityLawyers.com jacobson@archcitylawyers.com Vianello@ArchCityLawyers.com - and - Jonathan A. Michaels, Esq. Kianna C. Parviz, Esq. Kathryn Jeanine Harvey, Esq. MLG AUTOMOTIVE LAW, APLC 2801 W. Coast Highway, Suite 370 Newport Beach, CA 92663 Telephone: (949) 581-6900 Facsimile: (949) 581-6908 E-mail: jmichaels@mlgautomotivelaw.com kparviz@mlgautomotivelaw.com kharvey@mlgautomotivelaw.com Counsel to Volkswagen Group of America Inc.: Matthew Henry Marmolejo, Esq. MAYER BROWN LLP 350 South Grand Avenue, Suite 2500 Los Angeles, CA 90071 Telephone: (213) 229-9500 Facsimile: (213) 625-0248 E-mail: mmarmolejo@mayerbrown.com Nisa Aguilar, et al. v. Volkswagen Group of America, Inc., et al. Docket No. 3:15-cv-06108 (N.D. Cal., December 28, 2015) Case in other court: California Central, 2:15-cv-07741 Plaintiffs' Counsel: Ari Nathan Cherniak, Esq. HAMMONDLAW, PC 1829 Reisterstown Road, Suite 410 Baltimore, MD 21208 Telephone: (443) 739-5758 Facsimile: (310) 295-2385 E-mail: acherniak@hammondlawpc.com - and - Julian Ari Hammond, Esq. HAMMONDLAW, PC 1180 S. Beverly Dr., Suite 601 Los Angeles, CA 90035 Telephone: (310) 601-6766 Facsimile: (310) 295-2835 E-mail: JHammond@hammondlawpc.com - and - Polina Pecherskaya, Esq. HAMMONDLAW, PC 1633 East 31 Street Brooklyn, NY 11234 Telephone: (718) 414-7094 E-mail: ppecherskaya@hammondlawpc.com Eve Turner, et al. v. Volkswagen Group of America Docket No. 3:15-cv-06132 (N.D. Cal., December 28, 2015) Case in other court: California Central, 8:15-cv-01923 Plaintiffs' Counsel: Reuben D. Nathan, Esq. NATHAN & ASSOCIATES, APC 2901 West Coast Hwy., Suite 350 Newport Beach, CA 92663 Telephone: (949) 263-5992 Facsimile: (949) 209-1948 E-mail: rnathan@nathanlawpractice.com - and - Ross Cornell, Esq. LAW OFFICES OF ROSS CORNELL, APC 111 W. Ocean Blvd., Suite 400 Long Beach, CA 90802 Telephone: (562) 612-1708 Facsimile: (562) 394-9556 E-mail: ross.law@me.com Mark Corwin, et al. v. Volkswagen Group of America, Inc., et al. Docket No. 3:15-cv-06124 (N.D. Cal., December 28, 2015) Case in other court: California Central, 2:15-cv-08228 Plaintiffs' Counsel: Bruce A. Broillet, Esq. Scott H. Carr, Esq. GREENE BROILLET AND WHEELER LLP 100 Wilshire Blvd., 21st Floor Santa Monica, CA 90401 Telephone: (310) 576-1200 Facsimile: (310) 576-1220 E-mail: bbroillet@greenebroillet.com scarr@greene-broillet.com Paul O. Leary, et al. v. Volkswagen AG, et al. Docket No. 3:15-cv-06127 (N.D. Cal., December 28, 2015) Case in other court: California Central, 2:15-cv-09131 Plaintiffs' Counsel: Aron K. Liang, Esq. Sean Tamura-Sato, Esq. Jack W. Lee, Esq. MINAMI TAMAKI LLP 360 Post Street, 8th Floor San Francisco, CA 94108 Telephone: (415) 788-9000 Facsimile: (415) 398-3887 E-mail: aliang@minamitamaki.com seant@minamitamaki.com jlee@MinaniTamaki.com - and - David M. McClain, Esq. Henry A. Steinberg, Esq. KAZAN MCCLAIN SATTERLEY AND GREENWOOD APC 55 Harrison Street, Suite 400 Oakland, CA 94607 Telephone: (510) 302-1000 Facsimile: (510) 835-4913 E-mail: dmmcclain@kazanlaw.com hsteinberg@kazanlaw.com - and - Denise Abrams, Esq. KAZAN MCCLAIN EDISES ABRAMS 171 Twelfth Street, Third Floor Oakland, CA 94607 Telephone: (510) 465-7728 Facsimile: (510) 835-4913 E-mail: dabrams@kazanlaw.com Kristen Marks v. Volkswagen Group of America, Inc. Docket No. 3:15-cv-06129 (N.D. Cal., December 28, 2015) Case in other court: California Central, 5:15-cv-02140 Plaintiff's Counsel: Gregory H.D. Alumit, Esq. Vincent D. Howard, Esq. HOWARD LAW PC 2099 S State College Blvd., Suite 600 Anaheim, CA 92806 Telephone: (800) 872-5925 Facsimile: (888) 533-7310 E-mail: galumit@howardlawpc.com vhoward@howardlawpc.com - and - David M. Arbogast, Esq. ARBOGAST LAW, A PROFESSIONAL CORPORATION 8117 W. Manchester Ave., Suite 530 Playa Del Rey, CA 90293 Telephone: (310) 477-7200 Facsimile: (310) 943-0416 E-mail: david@arbogastbowen.com Mark S. Kornfeld, et al. v. Volkswagen Group of America Docket No. 3:15-cv-06098 (N.D. Cal., December 28, 2015) Case in other court: California Central, 5:15-cv-02024 Plaintiffs' Counsel: Allan Steyer, Esq. D. Scott Macrae, Esq. Jill M. Manning, Esq. STEYER LOWENTHAL BOODROOKAS ALVAREZ & SMITH LLP One California Street, Suite 300 San Francisco, CA 94111 Telephone: (415) 421-3400 Facsimile: (415) 421-2234 E-mail: asteyer@steyerlaw.com smacrae@steyerlaw.com jmanning@steyerlaw.com - and - William Pettersen, Esq. PETTERSEN & BARK 1620 Union Street San Diego, CA 92101 Telephone: (619) 702-0123 Facsimile: (619) 702-0127 E-mail: pbattorneys@cox.net Carly Studer, et al. v. Volkswagen Group of America, Inc., et al. Docket No. 3:15-cv-06137 (N.D. Cal., December 28, 2015) Case in other court: California Central, 2:15-cv-07560 Plaintiffs' Counsel: Ivan Moe, Esq. Jean-Paul Le Clercq, Esq. Randi L. Thompson, Esq. Ronald W. Makarem, Esq. MAKAREM & ASSOCIATES, APLC 11601 Wilshire Boulevard, Suite 2440 Los Angeles, CA 90025-1760 Telephone: (310) 312-0299 Facsimile: (310) 312-0296 E-mail: moe@law-rm.com leclercq@law-rm.com thompson@law-rm.com makarem@law-rm.com Christopher Rumpf v. Volkswagen Group of America, Inc., et al. Docket No. 3:15-cv-06122 (N.D. Cal., December 28, 2015) Case in other court: California Central, 2:15-cv-07637 Plaintiff's Counsel: John H. Gomez, Esq. Kristen K. Barton, Esq. Deborah S. Dixon, Esq. GOMEZ IAGMIN TRIAL ATTORNEYS 655 W Broadway, Suite 1700 San Diego, CA 92101 Telephone: (619) 237-3490 Facsimile: (619) 237-3496 E-mail: john@gomeztrialattorneys.com kbarton@gomeztrialattorneys.com Ddixon@gomeztrialattorneys.com Counsel to Volkswagen Group of America Inc.: Matthew Henry Marmolejo, Esq. MAYER BROWN LLP 350 South Grand Avenue, Suite 2500 Los Angeles, CA 90071 Telephone: (213) 229-9500 Facsimile: (213) 625-0248 E-mail: mmarmolejo@mayerbrown.com Milons v. Volkswagen Group of America, Inc., et al. Docket No. 3:15-cv-06083 (N.D. Cal., December 28, 2015) Case in other court: Illinois Northern, 1:15-cv-10271 Plaintiff's Counsel: Todd Allen Smith, Esq. Carolyn Daley Scott, Esq. POWER ROGERS AND SMITH, PC 70 W. Madison Street, 55th Floor Chicago, IL 60602 Telephone: (312) 236-9381 Facsimile: (312) 236-0920 E-mail: tsmith@prslaw.com cdaley@prslaw.com Counsel to Volkswagen Group of America Inc.: James K. Toohey, Esq. Brian C. Langs, Esq. Garrett L. Boehm, Jr., Esq. JOHNSON & BELL LTD. 33 West Monroe Street, Suite 2700 Chicago, IL 60603 Telephone: (312) 372-0770 E-mail: toohey@jbltd.com langs@jbltd.com boehmg@jbltd.com Williams, et al. v. Volkswagen Group of America, Inc., et al. Docket No. 3:15-cv-06174 (N.D. Cal., December 28, 2015) Case in other court: New Jersey, 2:15-cv-07053 Plaintiffs' Counsel: James E. Cecchi, Esq. CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO, P.C. 5 Becker Farm Road Roseland, NJ 07068 Telephone: (973) 994-1700 Facsimile: (973) 994-1744 E-mail: jcecchi@carellabyrne.com Ruth Jelkmann, et al. v. Volkswagen Group of America, Inc. Docket No. 3:15-cv-06103 (N.D. Cal., December 28, 2015) Case in other court: California Central, 2:15-cv-07566 Plaintiffs' Counsel: Martis A. Alex, Esq. LABATON SUCHAROW LLP 140 Broadway New York, NY 10005 Telephone: (212) 907-0870 Facsimile: (212) 818-0477 E-mail: malex@labaton.com - and - Thomas David Haklar, Esq. LAW OFFICE OF THOMAS D. HAKLAR 2550 Fifth Avenue, Suite 617 San Diego, Ca 92103 Telephone: (619) 952-8777 Facsimile: (619) 232-7317 E-mail: thaklar@haklarlaw.com Jess Hill, et al. v. Volkswagen of America, Inc., et al. Docket No. 3:15-cv-06104 (N.D. Cal., December 28, 2015) Case in other court: California Central, 2:15-cv-07604 Plaintiffs' Counsel: Elaine T. Byszewski, Esq. Lee M. Gordon, Esq. HAGENS BERMAN SOBOL SHAPRIO LLP 301 N. Lake Avenue, Suite 203 Pasadena, CA 91101 Telephone: (213) 330-7150 Facsimile: (213) 330-7152 E-mail: elaine@hbsslaw.com lee@hbsslaw.com - and - Shon Morgan, Esq. QUINN EMANUEL URQUHART & SULLIVAN, LLP 865 South Figueroa Street, 10th Floor Los Angeles, CA 90017-2543 Telephone: (213) 624-7707 Facsimile: (213) 624-0643 E-mail: shonmorgan@quinnemanuel.com - and - Thomas E. Loeser, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP 1918 Eighth Avenue, Suite 3300 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594 E-mail: toml@hbsslaw.com Counsel to Volkswagen Group of America Inc.: John Nadolenco, Esq. Matthew Henry Marmolejo, Esq. MAYER BROWN LLP 350 South Grand Avenue, 25th Floor Los Angeles, CA 90071-1503 Telephone: (213) 229-9500 Facsimile: (213) 625-0248 E-mail: jnadolenco@mayerbrown.com mmarmolejo@mayerbrown.com Victoria Genin v. Volkswagen Group of America Inc. Docket No. 3:15-cv-06107 (N.D. Cal., December 28, 2015) Case in other court: California Central, 2:15-cv-07688 Plaintiff's Counsel: Joshua C. Ezrin, Esq. AUDET AND PARTNERS LLP 221 Main Street Suite 1460 San Francisco, CA 94105 Telephone: (415) 568-2555 Facsimile: (415) 568-2556 E-mail: jezrin@audetlaw.com - and - William M. Audet, Esq. AUDET & PARTNERS, LLP 711 Van Ness, Suite 500 San Francisco, CA 94102-3229 Telephone: (415) 568-2555 Facsimile: (415) 568-2556 E-mail: waudet@audetlaw.com Counsel to Volkswagen Group of America Inc.: Matthew Henry Marmolejo, Esq. MAYER BROWN LLP 350 South Grand Avenue, 25th Floor Los Angeles, CA 90071-1503 Telephone: (213) 229-9500 Facsimile: (213) 625-0248 E-mail: mmarmolejo@mayerbrown.com Zucker v. Volkswagen Group of America, Inc. Docket No. 3:15-cv-06084 (N.D. Cal., December 28, 2015) Case in other court: Missouri Eastern, 4:15-cv-01466 Plaintiff's Counsel: Paul J. Hanly, Jr., Esq. HANLY CONROY BIERSTEIN & SHERIDAN LLP 112 Madison Avenue, 7th Floor New York, NY 10016-7416 Telephone: (212) 784-6401 Facsimile: (212) 784-6420 E-mail: phanly@hanlyconroy.com - and - Sarah S. Burns, Esq. SIMMONS HANLY CONROY One Court Street Alton, IL 62002 Telephone: (618) 259-2222 Facsimile: (618) 259-2251 E-mail: sburns@simmonsfirm.com Counsel to Volkswagen Group of America Inc.: David M. Eisenberg, Esq. John W. Cowden, Esq. BAKER, STERCHI, COWDEN & RICE, LLC 2400 Pershing Road, Suite 500 Kansas City, MO 64108-2504 Telephone: (816) 448-9343 Facsimile: (816) 472-0288 E-mail: eisenberg@bscr-law.com cowden@bscr-law.com Chenggang Zhu, et al. v. Volkswagen Group of America, Inc. Docket No. 3:15-cv-06125 (N.D. Cal., December 29, 2015) Case in other court: California Central, 2:15-cv-08720 Counsel to Plaintiff Chenggang Zhu: Frank S. Carleo, Esq. 508 West Hillsdale St. Inglewood, CA 90302 Telephone: (310) 645-2519 - and - Shin-Pen Yang, Esq. 110 W Las Tunas Dr., #F San Gabriel, CA 91776 Telephone: (626) 451-0882 Hoffman, et al. v. Volkswagen Group of America, Inc., et al. Docket No. 3:15-cv-06076 (N.D. Cal., December 29, 2015) Case in other court: Maryland, 1:15-cv-03157 Plaintiffs' Counsel: Athanasios Basdekis, Esq. BAILEY AND GLASSER LLP 209 Capitol St. Charleston, WV 25301 Telephone: (304) 340-2282 Facsimile: (304) 342-1110 E-mail: tbasdekis@baileyglasser.com Rogers v. Volkswagen AG, et al. Docket No. 3:15-cv-05986 (N.D. Cal., December 29, 2015) Case in other court: Tennessee Middle, 2:15-cv-00061 Plaintiff's Counsel: Damien J. Marshall, Esq. BOIES, SCHILLER AND FLEXNER LLP 575 Lexington Avenue, 7th Floor New York, NY 10022 Telephone: (212) 909-7617 Facsimile: (212) 446-2350 E-mail: dmarshall@bsfllp.com - and - David Boies, Esq. BOIES SCHILLER AND FLEXNER 333 Main Street Armonk, NY 10504 Telephone: (914) 749-8201 Facsimile: (914) 749-8300 E-mail: dboies@bsfllp.com - and - Jonathan D. Schiller, Esq. BOIES, SCHILLER & FLEXNER, LLP 575 Lexington Avenue New York, NY 10022 Telephone: (212) 446-2300 Facsimile: (212) 446-2350 E-mail: jschiller@bsfllp.com - and - Stephen N. Zack, Esq. BOIES, SCHILLER & FLEXNER, LLP 100 SE 2nd Street, Suite 2800 Miami, FL 33131 Telephone: (305) 539-8400 Facsimile: (305) 539-1307 E-mail: szack@bsfllp.com - and - Darren J. Robbins, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 W Broadway, Suite 1900 San Diego, CA 92101 Telephone: (619) 231-1058 Facsimile: (619) 231-7423 E-mail: darrenr@rgrdlaw.com - and - Mark J. Dearman, Esq. Paul J. Geller, Esq. Stuart A. Davidson, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 120 E Palmetto Park Road, Suite 500 Boca Raton, FL 33432 Telephone: (561) 750-3000 Facsimile: (561) 750-3364 E-mail: mdearman@rgrdlaw.com pgeller@rgrdlaw.com sdavidson@rgrdlaw.com - and - David W. Garrison, Esq. Joshua A. Frank, Esq. BARRETT JOHNSTON MARTIN & GARRISON, LLC Bank of America Plaza 414 Union Street, Suite 900 Nashville, TN 37219 Telephone: (615) 244-2202 Facsimile: (615) 252-3798 E-mail: dgarrison@barrettjohnston.com jfrank@barrettjohnston.com - and - Jerry E. Martin, Esq. Scott P. Tift, Esq. Timothy L. Miles, Esq. BARRETT JOHNSTON, LLC 217 Second Avenue, N Nashville, TN 37201 Telephone: (615) 244-2202 Facsimile: (615) 252-3798 E-mail: jmartin@barrettjohnston.com stift@barrettjohnston.com tmiles@barrettjohnston.com Counsel to Volkswagen A.G. and Volkswagen Group of America Inc.: John Randolph Bibb, Jr., Esq. Ryan Nelson Clark, Esq. LEWIS, THOMASON, KING, KRIEG & WALDROP, P.C. 424 Church Street, Suite 2500 Nashville, TN 37219 Telephone: (615) 259-1366 Facsimile: (615) 259-1389 E-mail: rbibb@lewisthomason.com rclark@lewisthomason.com Amy Bergrud v. Volkswagen Group of America Inc., et al. Docket No. 3:15-cv-06106 (N.D. Cal., December 29, 2015) Case in other court: California Central, 2:15-cv-07629 Plaintiff's Counsel: David C. Wright, Esq. Jae Kook Kim, Esq. Richard D. McCune, Jr., Esq. MCCUNE WRIGHT LLP 2068 Orange Tree Lane, Suite 216 Redlands, CA 92374 Telephone: (909) 557-1250 Facsimile: (909) 557-1275 E-mail: dcw@mccunewright.com jkk@mccunewright.com rdm@mccunewright.com - and - Robert C. O'Brien, Esq. Stephen Gerard Larson, Esq. ARENT FOX LLP 555 West Fifth Street, 48th Floor Los Angeles, CA 90013 Telephone: (213) 629-7400 Facsimile: (213) 629-7401 E-mail: obrien.robert@arentfox.com stephen.larson@arentfox.com - and - Joseph G. Sauder, Esq. Matthew D. Schelkopf, Esq. CHIMICLES & TIKELLIS LLP 361 West Lancaster Avenue Haverford, PA 19041 Telephone: (610) 642-8500 Facsimile: (610) 649-3633 E-mail: JGS@chimicles.com MDS@chimicles.com Counsel to Volkswagen Group of America Inc.: Matthew Henry Marmolejo, Esq. MAYER BROWN LLP 350 South Grand Avenue, Suite 2500 Los Angeles, CA 90071 Telephone: (213) 229-9500 Facsimile: (213) 625-0248 E-mail: mmarmolejo@mayerbrown.com Ari Kalan v. Volkswagen Group of America, Inc., et al. Docket No. 3:15-cv-06120 (N.D. Cal., December 29, 2015) Case in other court: California Central, 2:15-cv-07563 Plaintiff's Counsel: Behram Viraf Parekh, Esq. Heather Marie Baker Dobbs, Esq. Michael L. Kelly, Esq. KIRTLAND & PACKARD LLP 2041 Rosecrans Ave., Third Floor El Segundo, CA 90245 Telephone: (310) 536-1000 Facsimile: (310) 536-1001 E-mail: bvp@kirtlandpackard.com hmb@kirtlandpackard.com mlk@kirtlandpackard.com Counsel to Volkswagen Group of America Inc.: Matthew Henry Marmolejo, Esq. MAYER BROWN LLP 350 South Grand Avenue, Suite 2500 Los Angeles, CA 90071 Telephone: (213) 229-9500 Facsimile: (213) 625-0248 E-mail: mmarmolejo@mayerbrown.com Gastman v. Volkswagen Group of America, Inc., et al. Docket No. 3:15-cv-06085 (N.D. Cal., December 29, 2015) Case in other court: Missouri Eastern, 4:15-cv-01515 Plaintiff's Counsel: Cyrus C. Dashtaki, Esq. DASHTAKI LAW FIRM, LLC 5205 Hampton Avenue St. Louis, MO 63109 Telephone: (314) 932-7671 E-mail: cyrus@dashtaki.com Counsel to Volkswagen Group of America Inc.: David M. Eisenberg, Esq. John W. Cowden, Esq. BAKER, STERCHI, COWDEN & RICE, LLC 2400 Pershing Road, Suite 500 Kansas City, MO 64108-2504 Telephone: (816) 448-9343 Facsimile: (816) 472-0288 E-mail: eisenberg@bscr-law.com cowden@bscr-law.com Young Kim, et al. v. Volkswagen Group of America, Inc. Docket No. 3:15-cv-06105 (N.D. Cal., December 29, 2015) Case in other court: California Central, 2:15-cv-07605 Plaintiffs' Counsel: Adam J. McNeile, Esq. Bryan Kemnitzer, Esq. KEMNITZER, BARRON & KRIEG, LLP 445 Bush St., 6th Floor San Francisco, CA 94108 Telephone: (415) 632-1900 Facsimile: (415) 632-1901 E-mail: adam@kbklegal.com bryan@kbklegal.com - and - David Stellings, Esq. LIEFF CABRASER HEIMANN AND BERNSTEIN LLP 250 Hudson Street, 8th Floor New York, NY 10013 Telephone: (212) 355-9500 Facsimile: (212) 355-9592 E-mail: dstellings@lchb.com - and - Kevin R. Budner, Esq. Phong-Chau Gia Nguyen, Esq. Todd A. Walburg, Esq. Elizabeth Joan Cabraser, Esq. LIEFF, CABRASER, HEIMANN AND BERNSTEIN, LLP 275 Battery St., 29th Floor San Francisco, CA 94111 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 E-mail: kbudner@lchb.com pgnguyen@lchb.com twalburg@lchb.com ecabraser@lchb.com - and - Mark A. Chavez, Esq. CHAVEZ AND GERTLER LLP 42 Miller Avenue Mill Valley, CA 94941 Telephone: (415) 381-5599 Facsimile: (415) 381-5572 E-mail: mark@chavezgertler.com Counsel to Volkswagen Group of America Inc.: Matthew Henry Marmolejo, Esq. MAYER BROWN LLP 350 South Grand Avenue, Suite 2500 Los Angeles, CA 90071 Telephone: (213) 229-9500 Facsimile: (213) 625-0248 E-mail: mmarmolejo@mayerbrown.com Cleveland University-KC, et al. v. Volkswagen AG, et al. Docket No. 3:15-cv-06169 (N.D. Cal., December 29, 2015) Case in other court: Virginia Eastern, 1:15-cv-01376 Plaintiffs' Counsel: Daniel S. Sommers, Esq. Joshua Seth Devore, Esq. S. Douglas Bunch, Esq. Elizabeth A. Aniskevich, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Ave., NW, Suite 500, West Tower Washington, DC 20005-3965 Telephone: (202) 408-4600 Facsimile: (202) 408-4699 E-mail: dsommers@cohenmilstein.com jdevore@cohenmilstein.com dbunch@cohenmilstein.com eaniskevich@cohenmilstein.com - and - Jeremy A. Lieberman, Esq. Gustavo F. Bruckner, Esq. J. Alexander Hood II, Esq. Marc Gorrie, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (212) 661-8665 E-mail: jalieberman@pomlaw.com gfbruckner@pomlaw.com ahood@pomlaw.com mgorrie@pomlaw.com - and - Patrick V. Dahlstrom, Esq. POMERANTZ LLP 10 South La Salle Street, Suite 3505 Chicago, IL 60603 Telephone: (312) 377-1181 Facsimile: (312) 377-1184 E-mail: pdahlstrom@pomlaw.com MERCEDES-BENZ: Faces Class Action Over BlueTEC Diesel Engines ------------------------------------------------------------- Charles Toutant, New Jersey Law Journal, reports that a class action filed in federal court in Newark says Mercedes-Benz "Clean Diesel" models are programmed to shut off pollution controls under certain circumstances -- a claim reminiscent of the recent scandal at Volkswagen that prompted hundreds of lawsuits. Diesel-powered Mercedes-Benz vehicles have been found to emit pollutants at a level 65 times higher than the Environmental Protection Agency permits, according to the complaint in Lynevych v. Mercedes Benz USA. The company's diesel cars are programmed to turn off pollution control devices when outside temperatures fall below 50 degrees Fahrenheit, according to the complaint. The suit concerns Mercedez-Benz's BlueTEC diesel engines, which the company markets as "the world's cleanest and most advanced diesel," with "ultra-low emissions, high fuel economy and responsive performance" while producing up to 30 percent less greenhouse gas emission than a gasoline car, the suit says. "Mercedes never disclosed to consumers that Mercedes diesels with BlueTEC engines may be 'clean' diesels when it is warm, but are 'dirty' diesels when it is not," the suit alleges. "Mercedes never disclosed that, when the temperature drops below 50 degrees, it prioritizes engine power and profits over people." The suit covers the ML320, ML350, GL320, E320, S350, R320, E Class, GL Class, ML Class, R Class, S Class, GLK Class, GLE Class and Sprinter models with BlueTEC engines. More than 100,000 BlueTEC-equipped vehicles have been sold in the U.S., according to a press release from by the firm of Hagens Berman Sobol Shapiro in Seattle, which filed the suit along with Carella, Byrne, Cecchi, Olstein, Brody & Agnello of Roseland as co-counsel. The suit is brought on behalf of a nationwide class and subclasses for each of the 49 states and the District of Columbia. The suit brings a claim under the New Jersey Consumer Fraud Act, as well as state law claims for breach of contract and fraudulent concealment. The suit is seeking temporary and permanent restraints against the practices in the complaint, as well as injunctive relief in the form of a recall or free replacement program, as well as restitution for overpayment and diminution in value for the affected vehicles. The suit also seeks punitive damages, costs and disgorgement in an amount to be determined at trial. Similar allegations were made last year by the EPA against Volkswagen, where nearly a half-million cars with diesel engines were found to disengage elements of the vehicles' emission control systems during normal operation. The allegations concern roughly 482,000 cars, whose emissions levels are 10 to 40 times greater than the law allows, the EPA said. Volkswagen was hit with more than 400 suits over the diesel emissions issue, and in December 2015 the Judicial Panel for Multidistrict Litigation centralized those cases in the Northern District of California. Mercedes-Benz was sued in New Jersey Feb. 18 by Hagens Berman and Carella Byrne. Hagens Berman filed a similar suit against Mercedes-Benz Feb. 19 in the Northern District of California., Andary v. Mercedes-Benz USA. Hagens Berman was the lead counsel in a class action against Toyota Motor Corp. over complaints of unintended acceleration that settled for $1.1 billion in 2012. Steve Berman, lead counsel for the class, was not available to comment on the suit, his office said. A Mercedes-Benz spokesman, Han Tjan, said in a statement: "We believe that the complaint is without merit. We are currently reviewing the documents and will defend ourselves." MYLAN N.V.: Trial in Modafinil Class Action Stayed -------------------------------------------------- Mylan N.V. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 16, 2016, for the fiscal year ended December 31, 2015, that the trial of the class action lawsuit by direct purchasers of the drug Modafinil is stayed and the case has been placed in suspense. Beginning in April 2006, Mylan and four other drug manufacturers have been named as defendants in civil lawsuits filed in or transferred to the U.S. District Court for the Eastern District of Pennsylvania by a variety of plaintiffs purportedly representing direct and indirect purchasers of the drug modafinil and in a lawsuit filed by Apotex, Inc., a manufacturer of generic drugs. These actions allege violations of federal antitrust and state laws in connection with the generic defendants' settlement of patent litigation with Cephalon relating to modafinil. Discovery has closed. On June 23, 2014, the court granted the defendants' motion for partial summary judgment (and denied the corresponding plaintiffs' motion) dismissing plaintiffs' claims that the defendants had engaged in an overall conspiracy to restrain trade. On January 28, 2015, the District Court denied the defendants' summary judgment motions based on factors identified in the Supreme Court's Actavis decision. On June 1, 2015, the District Court denied the indirect purchaser plaintiffs' motion for class certification. The indirect purchaser plaintiffs filed a petition for leave to appeal the certification decision, which was denied by the Court of Appeals for the Third Circuit on December 21, 2015. On July 27, 2015, the District Court granted the direct purchaser plaintiffs' motion for class certification. On October 9, 2015, the Third Circuit granted Defendants' Petition for Leave to Appeal. On October 16, 2015, Defendants filed a motion to stay the liability trial, which had been set to begin on February 2, 2016, with the District Court pending the appeal of the decision to certify the direct purchaser class; this motion was denied on December 17, 2015. On December 17, 2015, the District Court approved the form and manner of notice to the certified class of direct purchasers; notice subsequently issued to the class. On December 21, 2015, the defendants filed a motion to stay with the Court of Appeals for the Third Circuit, which was granted on January 25, 2016; the trial is now stayed and the case has been placed in suspense. On March 24, 2015, Mylan reached a settlement in principle with the putative indirect purchasers and on November 20, 2015, Mylan entered into a settlement agreement with the putative indirect purchasers. Plaintiffs have not yet moved for preliminary approval of that settlement. At December 31, 2015, the Company has accrued approximately $16.0 million related to this settlement. On June 29, 2015, the City of Providence, Rhode Island filed suit against the same parties named as defendants in litigation pending in the Eastern District of Pennsylvania, including Mylan, asserting state law claims based on the same underlying allegations. All defendants, including Mylan, moved to dismiss the suit on October 15, 2015. The motion is now fully briefed. On July 10, 2015, the Louisiana Attorney General filed a petition against Mylan and three other drug manufacturers asserting state law claims based on the same underlying allegations as those made in litigation pending in the Eastern District of Pennsylvania. Mylan's declinatory exception of no personal jurisdiction and peremptory exceptions of no cause of action, no right of action and prescription are pending. A hearing on the exception was scheduled for January 19, 2016; however, the District Court adjourned the hearing until May 16, 2016. MYLAN N.V.: Indirect Purchasers File Opening Brief in Appeal ------------------------------------------------------------ Mylan N.V. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 16, 2016, for the fiscal year ended December 31, 2015, that the indirect purchasers of the drug Pioglitazone have filed their opening brief in a class action appeal. Beginning in December 2013, Mylan, Takeda, and several other drug manufacturers have been named as defendants in civil lawsuits consolidated in the U.S. District Court for the Southern District of New York by plaintiffs which purport to represent indirect purchasers of branded or generic Actos(R) and Actoplus Met(R). These actions allege violations of state and federal competition laws in connection with the defendants' settlements of patent litigation in 2010 relating to Actos and Actoplus Met(R). Plaintiffs filed an amended complaint on August 22, 2014. Mylan and the other defendants filed motions to dismiss the amended complaint on October 10, 2014. Two additional complaints were subsequently filed by plaintiffs purporting to represent classes of direct purchasers of branded or generic Actos(R) and Actoplus Met(R). On September 23, 2015, the District Court granted defendants' motions to dismiss the indirect purchasers amended complaints with prejudice. The indirect purchasers filed a notice of appeal on October 22, 2015. The indirect purchasers subsequently filed their opening brief on February 4, 2016, which did not appeal the District Court's dismissal of claims asserted against Mylan. The putative direct purchaser class filed an amended complaint on January 8, 2016. Defendants' motion to dismiss was filed on January 28, 2016. MYLAN N.V.: Briefing in Shareholders Class Action Completed ----------------------------------------------------------- Mylan N.V. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 16, 2016, for the fiscal year ended December 31, 2015, that briefing regarding three motions in the shareholders class action has been completed. On June 11, 2015, City of Riviera Beach General Employees Retirement System and Doris Arnold (collectively, the "Riviera Plaintiffs") filed a purported class action complaint against Mylan and directors of Mylan Inc. (the "Directors") in the Washington County, Pennsylvania, Court of Common Pleas (the "Pennsylvania Court"), on behalf of certain former shareholders of Mylan Inc. The complaint alleged both breach of fiduciary duty by the Directors and breach of contract by Mylan and the Directors, all relating to certain public disclosures made in connection with the EPD Transaction and the creation of, and Call Option Agreement with, the Foundation. The Riviera Plaintiffs asked the Pennsylvania Court to: find that the Directors breached their fiduciary duties and that Mylan and the Directors breached the purported contract, rescind the vote of Mylan Inc.'s former shareholders approving the EPD Transaction, award compensatory damages and award Plaintiffs their costs relating to the lawsuit. On June 22, 2015, Mylan and the Directors removed the case to the U.S. District Court for the Western District of Pennsylvania (the "District Court"). The Riviera Plaintiffs filed an amended complaint in the District Court on July 10, 2015, that included the same basic causes of action and requested relief, dropped allegations against some of the Directors named in the original complaint and asserted the breach of contract claim not on behalf of a purported class of former shareholders of Mylan Inc. but on behalf of a purported subclass of such shareholders who held shares of Mylan continuously for a specified period following consummation of the EPD Transaction. On July 21, 2015, a second purported class action complaint against the same defendants, asserting the same basic claims and requesting the same basic relief on behalf of the same purported class and subclass, was filed by a different plaintiff in the District Court. On August 28, 2015, the District Court consolidated the two actions, and, on September 4, 2015, the plaintiffs in the consolidated action filed a consolidated amended complaint (the "Consolidated Amended Complaint") against the same defendants, asserting the same basic claims and requesting the same basic relief on behalf of the same purported class and subclass, but asserting the breach of contract claim against only Mylan. On September 30, 2015, two of the plaintiffs in the consolidated action filed a motion for partial summary judgment, on the breach of contract claim against Mylan (the "Motion for Partial Summary Judgment"). On October 23, 2015, the District Court approved the voluntary dismissal of a third purported class action, commenced on August 28, 2015 against Mylan and the Directors, alleging federal securities and breach of contract claims against all defendants and breach of fiduciary duty claims against the Directors, all arising out of the same basic alleged facts and requesting the same basic relief on behalf of certain former shareholders of Mylan Inc. On November 25, 2015, the defendants filed a Motion to Dismiss the Consolidated Amended Complaint, and Mylan filed an Opposition to the Motion for Partial Summary Judgment and a Motion to Deny Summary Judgment. On December 21, 2015, the District Court consolidated the action with a fourth purported class action, commenced November 24, 2015 by, among others, the plaintiff in the third action, against the same defendants, alleging only breach of contract arising out of the same basic alleged facts, and requesting the same basic relief on behalf of certain former shareholders of Mylan Inc. In consolidating the actions, the District Court ordered, among other things, that the Consolidated Amended Complaint would remain the operative complaint in the consolidated action and that the Motion for Partial Summary Judgment, Motion to Dismiss and Motion to Deny Summary Judgment were not disturbed by the consolidation. The briefing regarding the three motions was completed on January 15, 2016. "We believe that the claims in this lawsuit are without merit and intend to continue to defend against them vigorously," the Company said. NORTHLAND GROUP: Dismissal of Debt Collection Class Action Upheld ----------------------------------------------------------------- Mark Hamblett, writing for New York Law Journal, reports that Violations of state and local debt collection statutes are not per se violations of the federal Fair Debt Collection Practices Act, the U.S. Court of Appeals for the Second Circuit ruled on Feb. 22. The appeals court upheld the dismissal of a would-be class action, saying a debt collector's failure to include a contact name with a call-back number on a debt notice, as required by New York City, does not automatically state a claim under the act (FDCPA) 15 U.S.C. Secs. 1692 et seq. "There is no indication that Congress intended for Secs 1692e (10) and 1692f to incorporate state- or local-law standards of conduct," the circuit said in Gallego v. Northland Group, 15-1666-cv. "On the contrary, the FDCPA expressly contemplates the existence of state laws that offer protections to consumers that go beyond the FDCPA itself." Plaintiff Jeffrey Gallego had a debt with Macy's and, in 2014, he received a debt collection letter from Northland Group, a Minnesota-based collection agency. The letter stated, "IT'S A NEW YEAR WITH NEW OPPORTUNITIES!" and it gave Mr. Gallego a chance to settle his account for $192.20 spread over four payments or $171.18 spread over two payments. He filed suit in the Southern District alleging the lack of a name with the call-back number on the letter, which is required by the New York City Administrative Code, violated the FDCPA. Northland Group and Mr. Gallego worked quickly to settle the matter on a class-wide basis, agreeing Mr. Gallego would be paid $1,000, that $16,500 would be distributed to other class members and that attorney fees would be capped at $35,000. But Judge Alvin Hellerstein denied class certification and then, on his own initiative, said the complaint appeared to allege no more than a violation of city law. He dismissed the case for lack of subject matter jurisdiction. Mr. Gallego appealed to the Second Circuit, where Judges Debra Ann Livingston and Gerard Lynch and Southern District Judge Jed Rakoff, sitting by designation, heard the appeal on Dec. 7, 2015. The panel disagreed that there was a lack of subject matter jurisdiction, with Lynch writing that the U.S. Supreme Court has outlined the "level of frivolity required for a federal claim to fail to invoke federal subject-matter jurisdiction" by using terms such as "essentially fictitious" and "wholly insubstantial." "Unless a claim fails to clear even that low bar, the court explained [in Shapiro v. McManus, 136 S.Ct. 450 (2015)], 'the failure to state a proper cause of action calls for judgment on the merits and not for a dismissal for want of jurisdiction.' That is what the district court should have done here." But the circuit agreed on Mr. Gallego's failure to state a claim, which can be read as looking for relief on two theories. The first is that Northland ran afoul of the FDCPA because it used "unfair or unconscionable means," and the second is that its failure to include the call-back name itself is "deceptive" and "unfair unconscionable" -- a phrase borrowed by the New York Administrative Code. Lynch said that state and local debt statute violations are not per se violations of the FDCPA, failing the first theory. The second theory fails because not listing call-back information is neither a "false representation" nor "deceptive means" under Sec. 1692e (10) because it doesn't open up the collection letter to more than one interpretation -- one of which is inaccurate. "Instead, the omission simply withholds information that New York City law has required debt agencies to supply, but that is not necessary to enable a recipient to understand the rest of the information contained in a typical debt collection letter," he said. And Mr. Gallego "has not even attempted to explain how the provision of a call-back name is in any way essential to the fairness of a debt collection practice, under any conception of 'fairness,'" nor how the omission shocks the conscience, Judge Lynch noted. Nonetheless, the circuit said neither theory presented by Mr. Gallego raised a colorable federal question that would deprive the court of subject-matter jurisdiction. In fact, he said, Judge Hellerstein seems to be the first judge to have been presented with Mr. Gallego's second theory. NOVATION COMPANIES: Still Defends Carpenters' Health Fund Suit -------------------------------------------------------------- Novation Companies, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 16, 2016, for the fiscal year ended December 31, 2015, that the Company continues to defend a purported class action case filed in the Supreme Court of the State of New York, New York County, by the New Jersey Carpenters' Health Fund. On May 21, 2008, a purported class action case was filed in the Supreme Court of the State of New York, New York County, by the New Jersey Carpenters' Health Fund, on behalf of itself and all others similarly situated. Defendants in the case included NovaStar Mortgage Funding Corporation ("NMFC"), a wholly-owned subsidiary of the Company, and its individual directors, several securitization trusts sponsored by the Company ("affiliated defendants") and several unaffiliated investment banks and credit rating agencies. The case was removed to the United States District Court for the Southern District of New York. On June 16, 2009, the plaintiff filed an amended complaint. The plaintiff seeks monetary damages, alleging that the defendants violated sections 11, 12 and 15 of the Securities Act of 1933, as amended, by making allegedly false statements regarding mortgage loans that served as collateral for securities purchased by the plaintiff and the purported class members. On August 31, 2009, the Company filed a motion to dismiss the plaintiff's claims, which the court granted on March 31, 2011, with leave to amend. The plaintiff filed a second amended complaint on May 16, 2011, and the Company again filed a motion to dismiss. On March 29, 2012, the court dismissed the plaintiff's second amended complaint with prejudice and without leave to replead. The plaintiff filed an appeal. On March 1, 2013, the appellate court reversed the judgment of the lower court, which had dismissed the case. Also, the appellate court vacated the judgment of the lower court which had held that the plaintiff lacked standing, even as a class representative, to sue on behalf of investors in securities in which plaintiff had not invested, and the appellate court remanded the case back to the lower court for further proceedings. On April 23, 2013 the plaintiff filed its memorandum with the lower court seeking a reconsideration of the earlier dismissal of plaintiff's claims as to five offerings in which plaintiff was not invested, and on February 5, 2015 the lower court granted plaintiff's motion for reconsideration and vacated its earlier dismissal. Given the stage of the litigation, the Company cannot provide an estimate of the range of any loss. The Company believes that the affiliated defendants have meritorious defenses to the case and expects them to defend the case vigorously. As of December 31, 2015, the Company owned 100% of Corvisa LLC ("Corvisa"), a developer and seller of cloud-based communication software under the CorvisaOne(R) brand, telecommunications services, and implementation consulting services. On December 21, 2015, the Company entered into a Membership Interest Purchase Agreement (the "Purchase Agreement") with Corvisa Services LLC ("Corvisa Services"), a wholly owned subsidiary of the Company, and ShoreTel, Inc. ("ShoreTel"), pursuant to which ShoreTel agreed to purchase all of the membership interests of Corvisa, subject to the terms and conditions under the Purchase Agreement. NYMOX PHARMACEUTICAL: "Sapir" Case Dismissed with Leave to Amend ---------------------------------------------------------------- District Judge Jose L. Linares granted the Defendants' motion to dismiss the amended class action complaint in the case, ROY SAPIR, on behalf of himself and all other similarly situated, Plaintiff, v. PAUL AVERBACK and NYMOX PHARMACEUTICAL CORPORATION, Defendants, Civil Action No. 14-7331 (JLL) (JAD), (D. N.J.) In this action, Lead Plaintiffs Harry Lattanzio, PRS, Inc., Network Accreditation Services, Inc., Andrew Silverman, and Rock 49th Restaurant Group allege claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, arising from alleged fraudulent misrepresentations about the design and conduct of two Phase 3 studies of Nyrnox's drug NX-1207. The proposed Class Period is from January 31, 2011 to November 2, 2014. Lead Plaintiffs claim that enrollment of 1,000 men in the two Phase 3 Studies was a "very slow and difficult process" and allege that in order to "keep the market's interest in NX-1207 during the lengthy enrollment process and to obfuscate the problems with design and conduct of the two Phase 3 studies" Defendants "began a campaign to disseminate as much positive information about NX- 1207, focusing on the two ongoing Phase 3 Studies and the results of prior, smaller, shorter Phase 2 studies of NX-1207." Lead Plaintiffs allege that the misrepresentations were made "through the publication of News Releases and reporting on positive presentations at meetings of the American Urological Association made by 'friendly' doctors, as well as through SEC filings." Lead Plaintiffs allege that the factual reasons given for failure of the Phase 3 Studies by Averback on the November 3, 2014 conference call were all facts known to Defendants at the beginning of, and throughout the Class Period. Defendants filed a motion to dismiss the amended class action complaint. In his Opinion dated February 10, 2016 available at http://is.gd/jdsbB0from Leagle.com, Judge Linares finds that, when considered holistically, the Amended Complaint fails to give rise to a strong inference that Defendants acted with scienter. In essence, Lead Plaintiffs' theory is that Defendants knew all along that the Phase 3 Studies were unlikely to succeed but concealed this information in order to prolong the viability of the Company. In contrast, Defendants suggest that the facts point to a more benign explanation: that Defendants designed the Phase 3 Studies with input from the FDA in a manner they thought was appropriate; that they kept market abreast of the studies' progress through press releases and other filings; and that Defendants immediately revealed the disappointing results of the Phase 3 Studies when they became available. The Court finds that when comparing the competing inferences, the opposing inference of non-fraudulent intent is more compelling than an inference of scienter. In other words, when viewing all of the facts collectively, a reasonable person would not deem the inference of scienter cogent and at least as compelling as any opposing inference one could draw from the facts alleged. In sum, when considering the Amended Complaint holistically and in a light most favorable to Lead Plaintiffs, the Court concludes that the competing inference of non-fraudulent is more compelling than an inference of scienter. Accordingly, the Court finds that Lead Plaintiffs have failed to state a claim under Section 10(b) and Rule 10b-5 of the Securities Exchange Act. In light of the deficiencies identified by the Court in this Opinion, the Court believes that amendment may well be futile. However, in the interests of justice, if Lead Plaintiffs believe that amending the complaint would not be futile, they shall file a motion in accordance with the Local Rules for leave to amend within 14 days of the date of this Opinion and Order. That motion must set forth precisely what new allegations they would include in a consolidated second amended complaint to cure the deficiencies identified by the Court, and shall also include a copy of a proposed second amended complaint that is blacklined against the current Amended Complaint. Gary S. Graifman, Esq. of Kantrowitz Goldhamer & Graifman, Esqs. and Tina Moukoulis, Esq. -- tina@bernardmgross.com -- of Law Office of Bernard M. Gross, PC serve as counsel for Plaintiff Roy Sapir Andrew B. Joseph, Esq. -- andrew.joseph@drinkerbiddle.com -- Stephen G. Stroup, Esq. -- stephen.stroup@drinkerbiddle.com -- and Joshua M. Link, Esq. -- joshua.link@drinkerbiddle.com -- of Drinker Biddle & Reath LLP serve as counsel for Defendant Paul Averback OOMA INC: "Barnett" Sues over Share Price Drop ---------------------------------------------- Michael Barnett, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. Ooma, Inc., Eric B. Stang, Ravi Narula, James Wei, Alison Davis, Andrew H. Galligan, Peter J. Goettner, Russell Mann, Sean N. Parker, William D. Pearce, Michael Orsak, Worldview Capital IV, L.P., Worldview Equity I, L.L.C., Credit Suisse Securities (USA) LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, JMP Securities LLC, William Blair & Company, L.L.C., Wunderlich Securities, INC. and Does 1-25, inclusive, Defendants, Case CIV536959 (Cal. Super., San Mateo County, January 14, 2016), seeks compensatory damages, interest, reasonable counsel and expert fees, rescission, equitable and/or injunctive or other relief as deemed appropriate for violation of Sec. 11, 12(a)(2) and 15 of the Securities Act of 1933. Ooma provides cloud-based telephony and connected services. Company sales to resellers were allegedly overstated prior to their IPO despite of its lead generation business experiencing technical problems resulting in lost data. Subscription revenue growth and operating and pretax profit margins were both falling. Ooma successfully raised $65 million in its IPO despite all of these problems that caused the Company's subscription retention rate to plummet and net losses to double in a year. Share prices dropped after remedial corrective measures were enforced. Barnett purchased Ooma common stock and lost substantially. Eric B. Stang, Ravi Narula, James Wei, Alison Davis, Andrew H. Galligan, Peter J. Goettner, Russell Mann, Sean N. Parker, William D. Pearce are members of the Ooma Board. Credit Suisse Securities (USA) LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated, JMP Securities LLC, William Blair & Company, L.L.C. and Wunderlich Securities, Inc. are investment banking firms that acted as underwriters of the IPO. The Plaintiff is represented by: Shawn A. Williams, Esq. ROBBINS GELLER RUDMAN DOWD LLP Post Montgomery Center One Montgomery Street, Suite 1800 San Francisco, CA 94104 Tel: (415) 288-4545 (415) 288-4534 - and - James I. Jaconette, Esq. ROBBINS GELLER RUDMAN DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101-8498 Tel: (619) 231-1058 (619) 231-7423 - and - Samuel H. Rudman, Esq. ROBBINS GELLER RUDMAN DOWD LLP 58 South Service Road, Suite 200 Melville, NY 11747 Tel: (631) 367-7100 Fax: (6310 367-1173 - and - Frank J. Johnson, Esq. Shawn E. Fields, Esq. JOHNSON & WEAVER, LLP 600 West Broadway, Suite 1540 San Diego, CA 92101 Tel: (619) 230-0063 Fax: (619) 255-1856 - and - Jack G. Fruciiter ABRAHAM, FRUCIITER & TWERSKY, LLP One Pennsylvania Plaza, Suite 2805 New York, NY 10119 Tel: (212) 279-5050 Fax: (212) 279-3655 PETROBAS: Securities Case Wins Class Certification -------------------------------------------------- District Judge Jed S. Rakoff granted Plaintiffs' motion for class certification in the case In re: PETROBRAS SECURITIES LITIGATION, No. 14-cv-9662 (JSR), (S.D.N.Y.) Lead Plaintiff Universities Superannuation Scheme Ltd. brings this putative class action against Brazilian oil company Petroleo Brasileiro S.A. -- Petrobras, two of Petrobras' wholly-owned subsidiaries, Petrobras Global Finance, B.V. and Petrobras America, Inc. various former officers and directors of Petrobras and its subsidiaries, Petrobras' independent auditor, PricewaterhouseCoopers Auditores Independentes and the various underwriters of Petrobras's debt offerings. Plaintiffs allege that Petrobras was at the center of a multi-year, multi-billion dollar bribery and kickback scheme, in connection with which Defendants made false and misleading statements in violation of the Securities Act of 1933 and the Securities Exchange Act of 1934. Plaintiffs move to certify two classes, one for their Securities Act claims and one for their Exchange Act claims. In his Opinion and Order dated February 1, 2016 available at http://is.gd/KXHvhUfrom Leagle.com, Judge Rakoff granted Plaintiffs' request. The Court concludes that Plaintiffs have satisfied the requirements of Fed.R.Civ.P. Rule 23(b)(3). The Exchange Act Class is defined as follows: "As to claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, all purchasers who, between January 22, 2010 and July 28, 2015, inclusive (the Class Period) purchased or otherwise acquired the securities of Petroleo Brasileiro S. A. (Petrobras), including debt securities issued by Petrobras International Finance Company S. A. (PifCo) and/or Petrobras Global Finance B.V. (PGF) on the New York Stock Exchange (the NYSE) or pursuant to other domestic transactions, and were damaged thereby. Excluded from the Class are Defendants, current or former officers and directors of Petrobras, members of their immediate families and their legal representatives, heirs, successors or assigns, and any entity in which Defendants have or had a controlling interest." The Securities Act Class is defined as follows: "As to claims under Sections 11 and 15 of the Securities Act of 1933, all purchasers who purchased or otherwise acquired debt securities issued by Petroleo Brasileiro S.A. (Petrobras), Petrobras International Finance Company S.A. (PifCo), and/or Petrobras Global Finance B.V. (PGF), in domestic transactions, directly in, pursuant and/or traceable to a May 15, 2013 public offering registered in the United States and/or a March 11, 2014 public offering registered in the United States before Petrobras made generally available to its security holders an earnings statement covering a period of at least twelve months beginning after the effective date of the offerings, and were damaged thereby. As to claims under Sections 12(a)(2) of the Securities Act of 1933, all purchasers who purchased or otherwise acquired debt securities issued by Petroleo Brasileiro S.A. (Petrobras), Petrobras International Finance Company S.A. ( PifCo), and/or Petrobras Global Finance B.V. (PGF), in domestic transactions, directly in a May 15, 2013 public offering registered in the United States and/or a March 11, 2014 public offering registered in the United States before Petrobras made generally available to its security holders an earnings statement covering a period of at least twelve months beginning after the effective date of the offerings, and were damaged thereby. Excluded from the Class are Defendants, current or former officers and directors of Petrobras, members of their immediate families and their legal representatives, heirs, successors or assigns, and any entity in which Defendants have or had a controlling interest." The Court appoints USS class representative for the Exchange Act Class and North Carolina and Hawaii class representatives for the Securities Act Class. The Court appoints Pomerantz LLP as class counsel for both Classes. The Clerk of Court is directed to close documents numbered 255 on the docket of this case. Chet Barry Waldman, Esq. -- CWaldman@wolfpopper.com -- Fei-Lu Qian, Esq. -- fqian@wolfpopper.com -- Lester L. Levy, Sr., Esq. -- llevy@wolfpopper.com and Robert Craig Finkel, Esq. -- rfinkel@wolfpopper.com of Wolf Popper LLP serve as counsel for Plaintiff Peter Kaltman David L. Schwarz, Esq. -- dschwarz@khhte.com and Joshua D. Branson, Esq. -- jbranson@khhte.com of Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C. -- Roger Allen Cooper, Esq. -- racooper@cgsh.com -- and Lewis J. Liman, Esq. -- lliman@cgsh.com of Cleary Gottlieb serve as counsel for Defendant Petroleo Brasileiro S.A.-Petrobras PHILIP MORRIS: Smokers to Get $4.9MM in Marlboro Lights Suit ------------------------------------------------------------ Janelle Lawrence, writing for Bloomberg News, reports that nearly 200,000 Marlboro Lights smokers will get $25 each, plus interest -- a fraction of the $600 million the plaintiffs had sought from Altria Group's Philip Morris USA -- after a Massachusetts judge found they were duped into buying what they thought was a safer cigarette. Plaintiffs "paid too much for the misrepresented cigarette," but their attorneys failed to prove they shared similar injuries beyond overpaying, Superior Court Judge Edward P. Leibensperger wrote in a 41-page decision released on Feb. 22, after 17 years of litigation, ordering Philip Morris to pay $4.94 million plus interest. Although Marlboro Lights were as harmful as Marlboro Reds, the judge wrote, "I have no evidential basis for quantifying the actual damages of each class member." The judge, who ruled after a five-week bench trial held last year, rejected plaintiffs' attempt to quantify the injury with a questionnaire asking smokers what they would have paid for an imaginary cigarette that was safer. RADIANT LOGISTICS: Status Conference in "Barahona" Continued ------------------------------------------------------------ Radiant Logistics, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on February 16, 2016, for the quarterly period ended December 31, 2015, that a status conference has been continued until May 2016 in the case, Ingrid Barahoma v. Accountabilities, Inc. d/b/a/ Accountabilities Staffing, Inc., Radiant Global Logistics, Inc. and DBA Distribution Services, Inc. (Ingrid Barahona California Class Action) Plaintiff recently admitted in a report to the Court that she is unable to prosecute the case because the payroll and personnel records she needs are in the possession of Tri-State and-or Accountabilities, and the case has been stayed as to them pending resolution of their chapter 11 bankruptcy proceedings. In January 2016, the court held a status conference, which has since been continued until May 2016 so the parties can attempt to obtain the necessary documents. The parties are in the process of trying to obtain the records. At this time, the Company is unable to express an opinion as to the likely outcome of the matter. Radiant Logistics, Inc. (the "Company") operates as a third party logistics company, providing multi-modal transportation and logistics services primarily in the United States and Canada. The Company services a large and diversified account base consisting of consumer goods, food and beverage, manufacturing and retail customers which it supports from an extensive network of approximately 150 operating locations across North America. The Company provides these services through a multi-brand network comprised of Company-owned offices and locations operated by its strategic operating partners, as well as an integrated international service partner network located in other key markets around the globe. RBC CAPITAL: "Luis" Suit Alleges Common Law Fraud ------------------------------------------------- Gary and Caryl Luis, Stephanie Edwards and Murray MacLeod, Mary Moravec, Judith and Delton Nack, and all others similarly-situated v. RBC Capital Markets, LLC, Case No. 0:16-cv-00175 (D. Minn., January 26, 2016), is brought against the Defendant for common law fraud, common law negligence, breach of fiduciary duty, violation of the Minnesota Securities Act, breach of contract and fraudulent concealment. Financial Industry Regulatory Association uncovered the fact that RBC marketed and sold complicated, structured securities during the time period from 2008 to 2012 without having in place supervisory systems and procedures that ensured compliance with not only applicable securities laws and regulations, but with its own internal guidelines. Defendant RBC is a Minnesota limited liability company and a Registered FINRA Member broker/dealer authorized to conduct business in the State of Minnesota. The Plaintiffs are represented by: David A. Goodwin, Esq. GUSTAFSON GLUEK PLLC Canadian Pacific Plaza 120 South 6th Street, Ste 2600 Minneapolis, MN 55402 Tel: (612) 333-8844 Fax: (612) 339-6622 E-mail: dgustafson@gustafsongluek.com - and - Scott D. Hirsch, Esq. SCARLETT & HIRSCH, P.A. 7777 Glades Road, Suite 200 Boca Raton, FL 33434 Tel: (561) 278-6707 Fax: (561) 278-6244 E-mail: scott@shlawfla.com SQUAD SECURITY: "Tapper" Suit Alleges Labor Code Violations ----------------------------------------------------------- Nathan Tapper, Sandra Hernandez, and all others similarly-situated v. Squad Security CA, Inc. and Does 1 through 100, Case No. BC607241 (Cal. Super., January 14, 2016), is brought against the Defendant for failure to pay overtime wages in violation of the California Labor Code. The Defendant offers a wide range of security and investigative solutions to multinational clients. The Plaintiffs are represented by: Paul K. Haines, Esq. BOREN, OSHER & LUFTMAN LLP 222 N. Sepulveda Blvd., Suite 2222 El Segundo, CA 90245 Tel: (310) 322-2220 Fax: (310) 322-2228 E-mail: phaines@bollaw.com ST. LOUIS, MO: "Furlow" Sues Cops Over Warrantless Arrests ---------------------------------------------------------- Dwayne Furlow, individually and on behalf of all others similarly situated, the Plaintiffs v. Jon Belmar, The County of St. Louis, Missouri, and St. Louis County Police Officer Walsh (Badge #4068), Case No. 4:16-cv-00254-CEJ (E.D. Mo., February 24, 2016), seeks compensatory damages for violation of constitutional rights. The Complaint alleges that the Defendants have arrested and detained through the use of unlawful Wanteds, a procedure by which the Defendants have violated the Plaintiff's and the purported class members' Fourth, Fifth and Fourteenth Amendment rights by unlawful seizing the Plaintiff and purported class members, depriving the Plaintiff and purported class members of liberty without due process of law by detention, and retaliating against the Plaintiff for asserting his constitutional right to remain silent. Defendant St. Louis County, Missouri, is a political and geographic subdivision of the State of Missouri existing pursuant to Missouri Law. Defendant Jon Belmar is the current Chief of Police for the St. Louis County Police Department and sued in his official capacity as the supervising and commanding officer of the St. Louis County Police Department Defendant Officer Walsh, Badge #4068, is a sworn peace officer employed by the St. Louis County Police Department and sued in his individual capacity. The Plaintiff is represented by: Blake A. Strode, Esq. Thomas B. Harvey, Esq. Edward J. Hall, Esq. Nathaniel R. Carroll, Esq. ARCHCITY DEFENDERS 812 N. Collins St. St. Louis, MO 63102 Tel: 855-724-2489 Local: 314-361-8834 Fax: 314-925-1307 E-mail: bstrode@archcitydefenders.org tharvey@archcitydefenders.org STONEMAN FABRICATORS: "Marroquin" Suit Seeks to Recover Unpaid OT ----------------------------------------------------------------- Luis Marroquin, and all others similarly-situated v. Stoneman Fabricators Corp. dba Renaissance Marble Works, Anthony Peppitone and Tomaso Matinoa, Case No. 1:16-cv-00403 (E.D.N.Y., January 26, 2016), seeks to recover unpaid overtime pay, spread of hours premium and other monies pursuant to the Fair Labor Standards Act and the New York Labor Law. The Defendants sell and install marble and other stone products for its customers. Its corporate business is located in New Hyde Park, New York. The Plaintiff is represented by: Eli Z. Freedberg, Esq. LAW OFFICE OF ELI FREEDBERG, P.C. 370 Lexington Avenue, Suite 2103 New York, NY 10017 Tel: (347) 651-0044 Fax: (212) 214-0799 TRS RECOVERY: Settlement in Debt Collection Suit Approved --------------------------------------------------------- District Judge D. Brock Hornby granted Plaintiffs' motion for class settlement certification in the case, N RE: TRS RECOVERY SERVICES, INC. AND TELECHECK SERVICES, INC., FAIR DEBT COLLECTION PRACTICES ACT (FDCPA) LITIGATION, Civil Docket No. 2:13-MD-2426- DBH, (D. Me.) This is a consumer class action brought under two federal statutes, the Fair Debt Collection Practices Act and the Fair Credit Reporting Act, as well as Maine consumer protection laws. The Plaintiffs complain that TRS Recovery Services, Inc. and Telecheck Services, Inc. sent them a misleading form collection letter, the "RECR3 letter," and improperly collected on disputed or erroneous debts for purportedly returned checks. Plaintiffs move for certification of class settlement. In his Decision and Order dated February 10, 2016 available at http://is.gd/2vGedpfrom Leagle.com, Judge Hornby granted Plaintiffs' motion for class settlement certification. There is no reasonable basis to believe that the Plaintiff classes can achieve a higher settlement amount, and there are significant risks posed by continued litigation -- including risks posed by summary judgment. The Court finally certifies the classes, and approves the settlement agreement and plan of distribution, including the service awards to the two named Plaintiffs. The certified classes are: Class One: All natural persons with an address in the State of Maine to whom the defendant TRS sent its RECR3 letter between March 11, 2010 and the present. Class Two: All natural persons with an address in the United States and its Territories to whom the defendant TRS sent its RECR3 letter between March 11, 2010, and the present, and from whom one or both defendants collected in whole or in part, within 30 days of the RECR3 letter, the debt or returned check fee referenced in that RECR3 letter. Class Three: All natural persons who have paid a returned check fee of $25 to at least one of the defendants by way of a TRS demand draft in connection with an underlying check transaction that occurred in the State of Maine since March 11, 2005. As a result of the settlement, the defendants will pay a total of $3,430,000 that will be divided among the class, counsel fees, incentive payments, and administrative costs. From the settlement fund, approximately $1,864,000 has been earmarked for distribution to the class members. The Court approves $1,050,000 in attorney fees but holds that payment of those fees will delayed pending the administration of payments to the class members. The Court certifies the settlement classes as proposed. The Court also concludes that the settlement is fair, reasonable, and adequate. The Court finds that the incentive awards are reasonable. The Court approves payment of Garden City Group's January 20, 2016, invoice for notice and claims administration. If there is any increase in the expenses of notice and claims administration, it will be subtracted from that $1,050,000, as the Plaintiffs' counsel agreed at the hearing. James A. Francis, Esq. -- jfrancis@consumerlawfirm.com -- John Soumilas, Esq. -- jsoumilas@consumerlawfirm.com -- and Erin A. Novak, Esq. -- enovak@consumerlawfirm.com -- of Francis & Mailman, PC serve as counsel for Plaintiff Dellarina M Stout Benjamin W. Jenkins, Esq. -- bjenkins@pierceatwood.com -- Donald R. Frederico, Esq. -- dfrederico@pierceatwood.com -- Kate R. Isley, Esq. -- kisley@pierceatwood.com -- and Lucus A. Ritchie, Esq. -- lritchie@pierceatwood.com -- of Pierce Atwood LLP -- Concepcion A. Montoya, Esq. -- cmontoya@hinshawlaw.com -- Elizabeth Kathryn Devine, Esq. -- edevine@hinshawlaw.com -- Renee Choy Ohlendorf, Esq. -- rchoy@hinshawlaw.com -- of Hinshaw and Culbertson LLP -- J. Nick Badgerow, Esq. -- nbadgerow@spencerfane.com -- of Spencer Fane Britt and Browne LLP -- Jeffrey Dean Patton, Esq. -- jpatton@spilmanlaw.com -- and Richard Scott Adams, Esq. -- sadams@spilmanlaw.com -- of Spilman Thomas & Battle, PLLC serve as counsel for Defendants TRS Recovery Services Inc. and Telecheck Services Inc. UBER: Lyft Settlement Won't Impact Drivers' Class Action -------------------------------------------------------- Karen Kidd, writing for Legal Newsline, reports that a now-settled class action lawsuit brought by Lyft drivers in California probably will have little bearing in the lawsuit against another ride-hailing service, Uber, set to go to trial in June, a Los Angeles attorney says. However, the possible result of a trial in the Uber case would impact Lyft and the way it classifies its drivers, she added. Lyft, based in San Francisco, recently agreed to a $12.25 million settlement of class action lawsuit, Cotter vs Lyft, Inc., filed Sept. 3, 2013, in San Francisco federal court by California Lyft drivers. The drivers alleged they were employees and not independent contractors and sought to have that designation recognized by the court. Lyft also agreed to change parts of its terms of service for new drivers who sign up on its platform. "The Lyft settlement is not likely to be considered as evidence by a trier of fact in the Uber case," said Taylor Burras -- tburras@mrllp.com -- an associate in the Labor and Employment Department of Michelman & Robinson in Los Angeles. "There are also key differences between the two cases that may not actually put them on the same footing, including the fact that Lyft has an arbitration agreement with a class waiver in its drivers' contracts that has previously been found enforceable by the court where the Lyft case is pending. "However, it's possible that the settlement would affect the plaintiffs and/or Uber's valuation of the case in any pre-trial settlement discussions," Ms. Burras said. The Cotter case is one of several lawsuits scrutinizing shared economy businesses that rely on independent contractors to provide a variety of services, not just hailing rides. Had plaintiffs prevailed in the Cotter case, Lyft drivers would have been reclassified as employees, which likely would have entitled them to the benefits of an employee. The Uber case, O'Connor et al v. Uber Technologies, filed in the same court in San Francisco and scheduled to begin trial June 20, has attracted the most attention since it was filed Aug. 16, 2013. The case was certified as class action in December. In January, the U.S. Court of Appeals for the Ninth Circuit denied Uber's request for a delay. A court-ordered website -- www.uberlitigation.com -- follows the Uber case. While cases such as those against Lyft and Uber attract much attention, particularly among workers rights advocates, there are a number of reasons people are attracted in ride-hailing to make a living, Ms. Burras said. "Uber and Lyft are well-known for offering flexible work schedules that let drivers 'be their own boss' and set their own hours," she said. "However, many of these types of services provide no training while requiring drivers to maintain a minimum customer rating on the app. The drivers are also unable to set their own rates and, in the case of Uber, actually discourage drivers from accepting tips." While classified as independent contractors, the drivers also are not entitled to protections and benefits usually provided to employees, such as minimum wage laws, unemployment insurance and Workers' Compensation, Ms. Burras said. In settled Lyft case, the court never got the opportunity to consider the question of reclassifying Lyft drivers. "Lyft settled early and to avoid protracted litigation over the employee versus independent contractor classification issue," Ms. Burras said. "Unlike the Uber case, the court had not even reached the point of certifying Lyft drivers as a class. This is significant because Lyft's business model may remain intact, at least for now." However, while the Lyft case may have no bearing on the Uber case, the Uber case could have significant bearing on Lyft and beyond, Ms. Burras said. "The outcome of the Uber case, should it proceed through trial, could potentially impact the entire sharing economy depending on the specific facts considered and their application to other similar business models." It still remains for the courts to decide whether ride-hailing drivers and others who provide services in shared economy businesses are properly classified as independent contractors, Ms. Burras said. Workers will have quite an uphill battle in any case that may decide that, Ms. Burras said. "Bringing a case as a class poses a lot of hurdles, which is why most class actions rarely make it to trial," she said. "By reaching a settlement, the parties were able to address the key concerns of Lyft's drivers without having to address some of these hurdles, including Lyft's arbitration agreement, which could have precluded the drivers from proceeding with their claims on a class basis." UBER: Received Complaints of Kalamazoo Shooter's Erratic Driving ---------------------------------------------------------------- CBS reports that ride-hailing company Uber received a complaint about erratic driving by Jason Dalton on Feb. 20, but says it never could have predicted the violent acts Dalton allegedly committed. Mr. Dalton was charged on Feb. 22 with killing six people in random shootings in Kalamazoo, Michigan, that began around 6:00 p.m. on Feb. 20 and ended nearly five hours later. Uber passenger Matt Mellen said earlier on Feb. 22 that he called police to report that Dalton was driving erratically more than an hour before the shootings began. Mr. Mellen also said he tried to report Dalton to Uber. Uber security chief Joe Sullivan said the company received complaints about Dalton from several passengers on Feb. 20, including one about dangerous and erratic driving. Sullivan wouldn't say whether that report came from Mr. Mellen. Mr. Sullivan said Uber immediately suspends drivers who are accused of violent acts. But in the case of erratic driving, it typically contacts the driver first to make sure it hears both sides. Mr. Sullivan wouldn't say whether Uber contacted Dalton on the night of Feb. 20, referring questions about the timeline of events to law enforcement. Mr. Sullivan also stressed that until Feb. 20, Uber had no reason to believe that anything was amiss. The San Francisco-based ride-hailing service says Mr. Dalton cleared a background check and was approved to be a driver on Jan. 25. He had given slightly more than 100 rides and had a rating of 4.73 stars out of a possible five. "I don't think that we will change our screening processes as a result of this incident," Mr. Sullivan said. "No background check would have flagged and anticipated this situation." Mr. Sullivan said he's satisfied with the company's response to the tragedy. Uber is working closely with law enforcement, he said, and is providing GPS locations of Dalton's car and other information to aid the investigation. The company's driver vetting process has been a source of criticism for the highly successful ride sharing service. Earlier this month, Uber agreed to pay a $28.5 million settlement to roughly 25 million riders in response to two class action lawsuits over the company's collection of a questionable "safe ride fee." The class action lawsuits include Uber passengers who took a trip in the U.S. between January 1, 2013 and January 31, 2016. Uber officials sought approval from the U.S. District Court for the Northern District of California to settle two cases: Philliben v. Uber Technologies, Inc. and Mena v. Uber Technologies, Inc. The lawsuits claim that despite the fee levied on riders, Uber has not adequately screened its drivers. In a statement released by Uber, the company states that "no means of transportation can ever be 100 percent safe. Accidents and incidents do happen. That's why it's important to ensure that the language we use to describe safety at Uber is clear and precise." Uber is now waiting for the judge to approve or reject the settlement. If approved, members of the class action lawsuit will be notified by email and can be paid either by credit card or to their rider account. UNION HOSPITAL: Court Narrows Claims in "Schneider" Labor Case -------------------------------------------------------------- District Judge Jane Magnus-Stinson granted in part the Defendant's motion for partial dismissal of the amended complaint and certification of state law question in the case, AMY L. SCHNEIDER and JANET E. BRENEMAN, Plaintiffs, v. UNION HOSPITAL, INC. Defendant, No. 2:15-cv-00204-JMS-DKL, (S.D. Ind.) This is a putative collective and class action brought under the Fair Labor Standards Act (FLSA) and the Indiana Wage Payment Act (IWPA). Plaintiff Amy Schneider began working for Union at its Terre Haute, Vigo County hospital in January 2008, and remained employed there until May 1, 2015, when she voluntarily ended her employment to accept a similar position with a contracting company that performed work for Union. During her employment, Ms. Schneider was paid on an hourly basis and treated as a non-exempt employee. Plaintiff Janet Breneman began working for Union, also at its Terre Haute, Vigo County hospital, in January 2006, and remained employed there on a full time basis until Fall 2011, when she retired. She was then rehired by Union in November 2012 on an hourly basis, and continued to work there until May 19, 2015, when she voluntarily resigned her employment. At all times during her employment with Union, Ms. Breneman was paid wages on an hourly basis and treated as a non-exempt employee. Defendant moves for the partial dismissal of the amended complaint and certification of state law question. In her Order dated February 10, 2016 available at http://is.gd/pKYMcifrom Leagle.com, Judge Magnus-Stinson granted in part Union's motion to dismiss to the extent that it dismisses Plaintiffs' FLSA minimum wage claims (both individually and on behalf of the collective action class); and dismissed Plaintiffs' breach of contract claims (both individually and on behalf of the Fed. R. Civ. P. 23 class). The Court denies in part Union's Motion to Dismiss, to the extent that it finds that Plaintiffs have adequately alleged, at this stage of the litigation, that Union willfully violated the FLSA in connection with their FLSA overtime claims, and that Union acted in bad faith in connection with their IWPA claims. The Court also denies in part Union's Motion to Dismiss, to the extent that it denies Union's request to certify to the Indiana Supreme Court the question of which version of the IWPA applies to Plaintiffs' claims. The following claims remain in this litigation: -- FLSA overtime violations, individually and on behalf of a collective action class; and -- IWPA violations, individually and on behalf of a putative Fed. R. Civ. P. 23 class. The Court notes that the parties have been in contact with the Magistrate Judge regarding a schedule for the expeditious resolution of issues regarding whether this matter is appropriate for treatment as a combined class action and FLSA collective action. The Court requests that the Magistrate Judge confer with the parties to address any effects of this Order on that schedule. Robert F. Hunt, Esq. -- hunt@huntlawfirm.net -- and Robert Peter Kondras, Jr., Esq. of Hunt Hassler Lorenz & Kondras LLP serve as counsel for Plaintiff Amy L. Schneider Dana Eugene Stutzman, Esq. Nicholas Scott Johnston, Esq. and Stephen W. Lyman, Esq. of Hall, Render, Killian, Heath & Lyman, PC serve as counsel for Defendant Union Hospital, Inc. UNITED STATES: 9th Cir. Issues Revised Opinion in Veterans' Suit ---------------------------------------------------------------- The U.S. Court of Appeals for the Ninth Circuit on Jan. 26, 2016, revised a previous opinion originally issued on June 30, 2015, in the appellate case, VIETNAM VETERANS OF AMERICA; Swords to Plowshares, Veterans Rights Organization; Tim Michael Josephs; William Blazinski; Bruce Price; Franklin D. Rochelle; Larry Meirow; Eric P. Muth; David C. Dufrane; Kathryn McMillan-Forrest, Plaintiffs-Appellants-Cross-Appellees, v. CENTRAL INTELLIGENCE AGENCY; John Brennan, Director of the Central Intelligence Agency; United States Department of Defense; Ashton Carter, Secretary of Defense; United States Department of the Army; John M. McHugh, Secretary of the Army; United States of America; United States Department of Veteran Affairs; Robert A. McDonald, Secretary of Veterans Affairs, Defendants-Appellees-Cross-Appellants, Nos. 13- 17430, 14-15108, (9th Cir.) A summary of the Jan. 26, 2016 Order and Amended Opinion provides that the Ninth Circuit panel -- comprising J. Clifford Wallace, Mary M. Schroeder, and William A. Fletcher, Circuit Judges -- affirmed in part and reversed in part the district court's judgment and injunction entered in an action brought by veterans organizations and individuals who were subjects in chemical and biological weapons experiments conducted by the United States military, seeking declaratory and injunctive relief against federal agencies; denied the petition for panel rehearing; and denied on behalf of the court the petition for rehearing en banc. The panel also agreed with the district court that the Army had an ongoing duty to provide medical care. The panel disagreed with the district court's denial of relief on the ground that the Department of Veterans Affairs provided medical care that to some degree duplicated the care the Army was obligated to provide. The panel held that the district court may not, in the absence of mootness, categorically deny injunctive relief to former volunteer subjects seeking necessarymedical care because some former subjects may be entitled to receive medical care from another government agency. The panel vacated the district court's summary judgment for the government on this claim and remanded to the district court. Judge Wallace joined the majority in affirming the district court's judgment and injunction compelling the Army to comply with Army Regulation 70-25's clear regulatory mandate, but wrote separately in concurrence because he did not join the majority's analysis of regulatory history to support its textual analysis. Judge Wallace dissented from the majority's conclusion that Army Regulation 70-25 also contained a command that the Army provide medical care to former research volunteers. He would affirm the district court's summary judgment against plaintiffs on their claims for medical care, but on the alternative ground that their claim was not judicially enforceable under Sec. 706(1) of the Administrative Procedure Act. A copy of the Order and Amended Opinion (Filed June 30, 2015), as Amended January 26, 2016, is available at http://is.gd/TmwgmEfrom Leagle.com. James Patrick Bennett, Esq. -- jbennett@mofo.com -- Eugene G. Illovsky, Esq. -- eillovsky@mofo.com -- Benjamin F. Patterson, Esq. -- bpatterson@mofo.com -- and Stacey Michelle Sprenkel, Esq. -- bpatterson@mofo.com -- of Morrison & Foerster LLP serve as counsel for Plaintiffs-Appellants-Cross-Appellees Melinda L. Haag, Esq. of United States Attorney Stuart F. Delery, Esq. of Assistant Attorney General Charles W. Scarborough, Esq. Brigham John Bowen, Esq. Anthony Joseph Coppolino, Esq. and Mark B. Stern, Esq. of Appellate Staff, Civil Division, United States Department of Justice serve as counsel for Defendants-Appellees- Cross-Appellants USS-POSCO INDUSTRIES: Attorney Fee Award in "Case" Suit Reversed ---------------------------------------------------------------- Judge Kathleen M. Banke affirmed the Trial Court's order granting summary judgment, but reversed and remanded the attorney fees award in the appeal captioned case USS-POSCO INDUSTRIES, Plaintiff, Cross-Defendant, and Respondent, v. FLOYD CASE, Defendant, Cross-Complainant, and Appellant. USS-POSCO INDUSTRIES, Plaintiff and Respondent, v. FLOYD CASE, Defendant and Appellant, Nos. A140457, A142145, (Cal. App.) Floyd Case voluntarily enrolled in a three-year, employer- sponsored educational program. He agreed in writing that if he quit his job within 30 months of completing the program, he would reimburse his employer, USS-POSCO Industries (UPI), a prorated portion of program costs. Two months after completing the program, Case went to work for another employer. When he refused to reimburse UPI, the company sued for breach of contract and unjust enrichment. Case cross-complained, asserting the reimbursement agreement was unenforceable and UPI had violated the Labor Code and other statutory provisions in seeking reimbursement. The trial court granted UPI's motion for summary judgment on both its complaint and Case's cross-complaint, and subsequently granted UPI's motion for attorney fees for defeating Case's wage claims. In granting the fee motion, the court applied the version of Labor Code section 218.5 in effect at the time of the summary judgment proceedings, rather than the version in effect at the time it awarded fees, which permits fees to a prevailing employer only when the employee's wage claims have been brought in "bad faith." In his Opinion dated January 26, 2016 available at http://is.gd/lMyNeofrom Leagle.com, Judge Banke affirmed the summary judgment, but reverse and remand the attorney fees award for the trial court to consider, if UPI makes a timely fee motion, UPI's entitlement to fees under the current version of section 218.5. The parties shall bear their own costs on these appeals. Robert L. Sallander, Jr., Esq. -- rsallander@gpsllp.com -- Kyle G. Kunst, Esq. -- kgkunst@hotmail.com -- and Cory Stephen Anderson, Esq. -- canderson@ussposco.com -- of Greenan, Peffer, Sallander & Lally serve as counsel for Respondent Jon Paul Webster, Esq. and James A. Arcellana, Esq. of The Law Offices of Jon Webster serve as counsel for Appellant VERTEX PHARMACEUTICALS: Plaintiff Appeals Case Dismissal -------------------------------------------------------- Vertex Pharmaceuticals Incorporated said in its Form 10-K Report filed with the Securities and Exchange Commission on February 16, 2016, for the fiscal year ended December 31, 2015, that plaintiff in the case, Local No. 8 IBEW Retirement Plan & Trust v. Vertex Pharmaceuticals Incorporated, et al., has appealed the dismissal of the case. The Company said, "On May 28, 2014, a purported shareholder class action Local No. 8 IBEW Retirement Plan & Trust v. Vertex Pharmaceuticals Incorporated, et al. was filed in the United States District Court for the District of Massachusetts, naming us and certain of our current and former officers and directors as defendants. The lawsuit alleged that we made material misrepresentations and/or omissions of material fact in our disclosures during the period from May 7, 2012 through May 29, 2012, all in violation of Section 10(b) of the Securities Exchange Act of 1934, as amended, and Rule 10b-5 promulgated thereunder. The purported class consists of all persons (excluding defendants) who purchased our common stock between May 7, 2012 and May 29, 2012. The plaintiffs seek unspecified monetary damages, costs and attorneys' fees as well as disgorgement of the proceeds from certain individual defendants' sales of our stock." "On October 8, 2014, the Court approved Local No. 8 IBEW Retirement Fund as lead plaintiff, and Scott and Scott LLP as lead counsel for the plaintiff and the putative class. We filed a motion to dismiss the complaint on December 8, 2014 and the plaintiffs filed their opposition to our motion to dismiss on January 22, 2015. "On February 23, 2015, we filed a reply to the plaintiffs' opposition to our motion to dismiss. The court heard oral argument on our motion to dismiss on March 6, 2015 and took the motion under advisement. On September 30, 2015, the court granted our motion to dismiss. On October 15, 2015, the plaintiff filed a notice of appeal. "We believe the claims to be without merit and intend to vigorously defend the litigation." VICTORIA'S SECRET: Faces "Hannegan" Suit Over TCPA Violation ------------------------------------------------------------ Michael Hannegan, on behalf of himself and all others sim1larly Situated, Plaintiffs, v. Victoria's Secret, Defendants, Case 8:16- cv-00125-JLS-JCG (C.D. Cal., January 26, 2016), seeks an injunction, statutory or actual damages and reasonable attorneys' fees under the Telephone Consumer Protection Act, 47 U.S.C. Sec. 227, et seq. Defendant allegedly engaged in the transmission of unauthorized text messages to promote its retail shops to consumers throughout the country. Victoria's Secret is an Ohio corporation with its principal place of business located in Columbus, Ohio and is a developer, operator and retailer of clothing and apparel. The Plaintiff is represented by: Joseph R. Manning, Jr., Esq. Michael J. Manning, Esq. Phillip B. Nghiem, Esq. THE LAW OFFICES OF JOSEPH R. MANNING, JR. 4667 MacArthur Boulevard, Suite 150 Newport Beach, CA 92660 Tel: (949) 200-8755 Fax: (866) 843-8308 VISHAY INTERTECHNOLOGY: VPC Defending Class Suit over Capacitors ---------------------------------------------------------------- Vishay Intertechnology, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 17, 2016, for the fiscal year ended December 31, 2015, that Vishay Polytech Co., Ltd. ("VPC"), a subsidiary of Vishay which was purchased from Holy Stone Enterprises Co., Ltd. ("Holy Stone") in June 2014, is a named defendant, among other manufacturers, in purported antitrust class action complaints in the United States and Canada. The complaints allege restraints of trade in aluminum and tantalum electrolytic capacitors, and in some cases, film capacitors, and seek injunctive relief and unspecified joint and several treble damages. Vishay Intertechnology, Inc. is a party to similar cases filed in Canada. On December 9, 2015, the Taiwan Fair Trade Commission ("TFTC") announced a fine of approximately $1,000,000 against VPC and concluded that VPC, along with other capacitor manufacturers, participated in meetings and had bilateral communications in which sensitive business information had been exchanged in violation of applicable antitrust laws. The TFTC subsequently notified VPC of the TFTC's intent to grant VPC full immunity and reduce its fine to zero based on VPC's cooperation and future commitment to compliance. The conduct attributable to VPC occurred prior to the acquisition of that entity by Vishay. Holy Stone has agreed to indemnify Vishay and VPC for losses, including penalties and expenses associated with the litigation and investigation. Notwithstanding this indemnity obligation, the Company and VPC intend to defend vigorously against the civil complaints. Vishay Intertechnology, Inc. is a global manufacturer and supplier of discrete semiconductors and passive components. Semiconductors include MOSFETs, diodes, and optoelectronic components. Passive components include resistive products, capacitors, and inductors. Discrete semiconductors and passive components are essential elements of virtually every type of electronic circuit. They support the microprocessor chips and other integrated circuits ("ICs") that coordinate and control the functions of electronic devices and equipment. We offer our customers "one-stop shop" access to one of the most comprehensive electronic component product lines of any manufacturer in the United States, Europe, and Asia. VISHAY INTERTECHNOLOGY: Defending Class Action over Resistors ------------------------------------------------------------- Vishay Intertechnology, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 17, 2016, for the fiscal year ended December 31, 2015, that since August 2015, the Company has been named as a defendant in purported antitrust class action complaints in the United States and Canada alleging restraints of trade in resistors by the Company and other unaffiliated manufacturers, and seeking injunctive relief and unspecified joint and several treble damages. The Company intends to defend vigorously against the complaints. Vishay Intertechnology, Inc. is a global manufacturer and supplier of discrete semiconductors and passive components. Semiconductors include MOSFETs, diodes, and optoelectronic components. Passive components include resistive products, capacitors, and inductors. Discrete semiconductors and passive components are essential elements of virtually every type of electronic circuit. They support the microprocessor chips and other integrated circuits ("ICs") that coordinate and control the functions of electronic devices and equipment. We offer our customers "one-stop shop" access to one of the most comprehensive electronic component product lines of any manufacturer in the United States, Europe, and Asia. VIZIO INC: "Eddy" Sues over Illegal Data Gathering -------------------------------------------------- Steven Eddy, individually and on behalf of all others similarly situated, Plaintiff, v. Vizio Holdings, Inc., Vizio, Inc., Vizio Inscape Services, LLC, Vizio Inscape Technologies, LLC and Cognitive Media Networks, Inc., Defendants, Case No. 3:16-cv- 00167-EDL (N.D. Cal., January 11, 2016), seeks statutory and punitive damages, litigation expenses and attorneys' fees, prejudgment and post-judgment interest, injunctive and declaratory relief in violation of the Video Privacy Protection Act, 18 U.S.C. Sec. 1710, California Civil Code Sec. 1799.3, California Business and Professions Code Sec. 17200, 17500 and 1750 et seq. Plaintiff purchased Vizio Smart TV with model number E600 I-b3. It is connected to the Internet and has been allegedly collecting and selling viewing data without consent. Vizio, Inc. is a corporation duly organized and existing under the laws of the State of California with its headquarters and principal place of business located at 39 Tesla, Irvine, California 92618. Vizio Holdings, Inc., Vizio Inscape Services, LLC, Vizio Inscape Technologies, LLC and Cognitive Media Networks, Inc. are Delaware corporations with principal place of business located at 39 Tesla, Irvine, California. The Plaintiff is represented by: David C. Parisi, Esq. Suzanne Havens Beckman, Esq. PARISI & HAVENS LLP 212 Marine Street, Suite 100 Santa Monica, CA 90405 Tel: (818) 990-1299 Fax: (818) 501-7852 Email: dcparisi@parisihavens.com shavens@parisihavens.com WATTS WATER: Announced Settlement-in-Principle ---------------------------------------------- Watts Water Technologies, Inc. said in an exhibit to its Form 8-K Report filed with the Securities and Exchange Commission on February 16, 2016, that the Company announced a settlement-in- principle on two class action lawsuits regarding legacy products for $14 million, of which the Company expects to pay approximately $4 million. "We recorded a $3.5 million pre-tax charge in the fourth quarter related to the settlement. Separately, recorded a $2.5 million pre-tax product liability charge related to the resolution of certain legacy claims for other undifferentiated products which we have exited," the Company said. Watts Water Technologies, Inc., through its subsidiaries, is a world leader in the manufacture of innovative products to control the efficiency, safety, and quality of water within residential, commercial, and institutional applications. WEATHERFORD INTERNATIONAL: Court Approves $120-Mil. Settlement -------------------------------------------------------------- Weatherford International public limited company said in its Form 10-K Report filed with the Securities and Exchange Commission on February 16, 2016, for the fiscal year ended December 31, 2015, that a court has entered final judgment approving the settlement in a shareholder class action lawsuit. "On June 30, 2015, we signed a stipulation to settle a shareholder securities class action captioned Freedman v. Weatherford International Ltd., et al., No. 1:12-cv-02121-LAK (S.D.N.Y.) for $120 million subject to notice to the class and court approval," the Company said. "The Freedman lawsuit had been filed in the U.S. District Court for the Southern District of New York in March 2012, and alleged that we and certain current and former officers of Weatherford violated the federal securities laws in connection with the restatements of the Company's historical financial statements announced on February 21, 2012 and July 24, 2012." "On November 4, 2015, the U.S. District Court for the Southern District of New York entered a final judgment and an order approving the settlement. Pursuant to the settlement, we were required to pay $120 million, which was partially funded by insurance proceeds. There was no admission of liability or fault by an party in connection with the settlement. "We are pursuing reimbursement from our insurance carriers and recovered $15 million of the settlement amount in the fourth quarter of 2015." Weatherford International plc, an Irish public limited company, together with its subsidiaries ("Weatherford," the "Company," "we," "us" and "our"), is a multinational oilfield service company. Weatherford is one of the world's leading providers of equipment and services used in the drilling, evaluation, completion, production and intervention of oil and natural gas wells. WESTERN CULINARY: Order Denying Arbitration Bid Reversed -------------------------------------------------------- Judge Darleen Ortega of the Oregon Court of Appeals reversed a trial court's order denying the Defendants' motion to compel arbitration of the subclass's claims in the appeal captioned case Shannon GOZZI, et al., Plaintiffs, and Jennifer ADAMS, fka Jennifer Schuster, and Nathan Surrett, individually and on behalf of all similarly-situated individuals, Plaintiffs-Respondents, v. WESTERN CULINARY INSTITUTE, LTD; and Career Education Corporation, Defendants-Appellants, No. A152137, (Or. App.) Plaintiffs filed an action against defendants in March 2008, alleging violations of Oregon's Unfair Trade Practices Act (UTPA). In particular, plaintiffs allege that defendants failed to inform prospective students that their programs do not provide any material benefit because they prepare students only for low-paying entry-level jobs that they could have obtained without a culinary degree from Le Cordon Bleu. In May 2012, when defendants filed the motion seeking to compel the subclass to arbitrate their claims, over four years had elapsed, plaintiffs had amended their complaint several times, defendants had answered with affirmative defenses asserting a right to mandatory arbitrate their claims and the parties had engaged in extensive discovery and had filed numerous motions. The parties agree that the subclass's arbitration agreements are governed by the Federal Arbitration Act (FAA), that the enrollment contracts and plaintiffs' claims implicate interstate commerce, and that the arbitration agreements provide that the FAA governs disputes within the agreement's scope. Plaintiffs were students who attended defendants' culinary trade school known as Le Cordon Bleu between March 1, 2006 and March 1, 2010, and have asserted claims for fraud and unfair trade practices under the UTPA. Defendants' motion to compel arbitration concerns a subclass of about 1,060 of the roughly 2,500 class members who signed enrollment contracts that included arbitration agreements governed by the FAA, 9 USC sections 1 to 16. A copy of the Court's Opinion dated January 21, 2016, is available at http://is.gd/RLtgHyfrom Leagle.com. Jeff E. Scott, Esq. -- scottj@gtlaw.com -- Stephen F. English, Esq. -- senglish@perkinscoie.com -- Thomas R. Johnson, Esq. - tom.johnson@klgates.com Misha Isaak, Esq. of Perkins Coie LLP -- Gregory Nylen, Esq. -- of Greenberg Traurig LLP serve as counsel for Appellants Jeff E. Scott David F. Sugerman, Esq. -- david@davidsugerman.com -- Brian S. Campf, Esq. -- brian@bsclegal.com -- and Tim Quenelle, Esq. serve as counsel for Respondents WHIRLPOOL CORP: Settlement Pending in Defective Washers Suit ------------------------------------------------------------ Whirlpool Corporation said in its Form 10-K Report filed with the Securities and Exchange Commission on February 16, 2016, for the fiscal year ended December 31, 2015, that the Company has vigorously defended against numerous lawsuits pending in the United States relating to certain of its front load washing machines. "We have reached preliminary agreement on a settlement that will resolve all such class action lawsuits," the Company said. "The settlement has been accounted for in interest and sundry income (expense) in the fourth quarter of 2015. The settlement requires court approval in order to be finalized, and we are proceeding through the court process to request such approval." The Company also is currently vigorously defending a number of other lawsuits in federal and state courts in the United States related to the manufacturing and sale of the Company's products which include class action allegations, and may become involved in similar actions in other jurisdictions. These lawsuits allege claims which include negligence, breach of contract, breach of warranty, product liability and safety claims, fraud, and violation of federal and state regulations, including consumer protection acts. "We do not have insurance coverage for class action lawsuits," the Company said. Whirlpool Corporation, the world's leading global manufacturer and marketer of major home appliances, was incorporated in 1955 under the laws of Delaware as the successor to a business that traces its origin to 1898. Whirlpool manufactures products in 14 countries and markets products in nearly every country around the world under brand names such as Whirlpool, KitchenAid, Maytag, Consul, Brastemp, Amana, Bauknecht, Jenn-Air and Indesit. Whirlpool's reportable segments consist of North America, EMEA (Europe, Middle East and Africa), Latin America and Asia. As of December 31, 2015, Whirlpool had approximately 97,000 employees. WHITEWAVE FOODS: Lawyers Allocate Funds for Omega-3 Research ------------------------------------------------------------ Celia Ampel, writing for Daily Business Review, reports that lawyers involved in a false advertising class action settlement with the makers of Silk and Horizon organic milk fortified with DHA omega-3 didn't want to walk away as scientific research on the fatty acid was developing. So they came up with a novel approach: allocating some of the settlement funds to pay an outside expert to review the latest research and keeping both sides up to date on how DHA omega-3 affects health and development. A Cornell University professor of human nutrition will make recommendations to WhiteWave Foods Co. about what claims it should be allowed to make in advertising for its DHA products, which include nine types of Silk and Horizon Organic Milk. "This is unique," said plaintiffs attorney Howard Bushman of Harke Clasby & Bushman in Miami Shores. "A lot of times people say that the class action device itself is a deterrent from mislabeling a product. . . . We think the substantiation program is a new way to settle and to provide value to the consuming public on an ongoing basis." The program is part of a $1.3 million multidistrict litigation settlement that U.S. District Judge Joan Lenard approved Jan. 29 in Miami. Denver-based WhiteWave denied wrongdoing but agreed to change advertising and packaging to remove claims that DHA omega-3 supports brain development and references to a study that consumers alleged did not support WhiteWave's claims. The company also agreed not to market its products as a good source of DHA omega-3 since the U.S. Food and Drug Administration and the Institute of Medicine have not set a daily recommended intake for the fatty acid. Horizon Organic Milk and Silk products can still use packaging that says DHA omega-3 supports brain, eye or heart health and that the fatty acid is recognized by doctors and nutritionists as part of a healthy diet. The distinction between "brain development" and "brain health" is important because the two phrases reach different consumers, said Mr. Bushman, who worked with colleagues Lance Harke and Sarah Clasby Engel as co-lead plaintiffs counsel on the case. The firm also represents plaintiffs in a California case that makes similar allegations against the makers of Flintstones Vitamins. "The vast majority of the marketing by WhiteWave in this case was toward children and parents of children," Bushman said. WhiteWave attorney Angela Agrusa of Liner in Los Angeles declined to comment on the settlement. Cases against WhiteWave started cropping up around the country in 2011 when research was released showing differences between omega- 3 from fish oil and DHA omega-3 from algae, Mr. Bushman said. Consumers claimed they paid more for DHA-fortified milk because cartons said "DHA Omega-3 Supports Brain Health," but no scientific evidence showed the fatty acid did anything for brain health. For instance, the average half-gallon of Horizon Organic Milk Plus DHA Omega-3 retailed for 20 to 50 cents more than Horizon Organic Milk without the additive, according to the consolidated complaint filed in the Southern District of Florida in 2012. Claims against WhiteWave included deceptive practices, breach of warranty and unjust enrichment. WILLIAMS COMPANIES: Shareholders Challenge Merger ------------------------------------------------- The Williams Companies, Inc. said in its Form 8-K Report filed with the Securities and Exchange Commission on February 16, 2016, that certain putative class action lawsuits have been filed by purported shareholders of The Williams Companies, Inc. ("Williams") challenging various aspects of the agreement and plan of merger dated September 28, 2015, among Williams, Energy Transfer Corp. LP ("ETC"), Energy Transfer Equity, L.P. ("ETE"), and various other corporate affiliates of ETE. The additional disclosures contained in this Current Report on Form 8-K are being filed in response to certain developments in that litigation. These additional disclosures supplement the disclosures contained in the Amended Proxy and should be read in conjunction with the disclosures contained in the Amended Proxy, which in turn should be read in its entirety. To the extent that information in this Current Report on Form 8-K differs from or updates information contained in the Amended Proxy, the information in this Current Report on Form 8-K shall supersede or supplement the information in the Amended Proxy. Nothing in this Current Report on Form 8-K shall be deemed an admission of the legal necessity or materiality of any of the disclosures set forth herein. Capitalized terms used herein, but not otherwise defined, shall have the meanings ascribed to such terms in the Amended Proxy. WORLDWIDE TRANSPORTATION: "Esquenazi" Seeks to Recover OT Pay ------------------------------------------------------------- Josue Esquenazi and Abraham Esquenazi, and other similarly situated individuals, Plaintiffs, v. Worldwide Transportation Services Inc. and Ali A. Malek, Defendants, Case 1:16-cv-20307-UU (S.D. Fla., January 26, 2016), seeks unpaid wages with interest, double damages and liquidated damages and reasonable attorneys' fees and costs of suit and other and further relief for violation of the Fair Labor Standards Act, 29 U.S.C. Sec. 201 et seq. Worldwide Transportation Services is a Florida corporation owned by Ali A. Malek engaged in logistics, shipping and transport services where Esquenazi was employed as a driver. He routinely worked in excess of 40 hours per week without overtime premium. The Plaintiff is represented by: R. Martin Saenz, Esq. SAENZ & ANDERSON, PLLC 20900 N.E. 30th Avenue, Ste. 800 Aventura, FL 33180 Tel: (305) 503-5131 Fax: (888) 270-5549 WYOMING, WI: Court Strikes Class Allegations in "Daniels" Suit -------------------------------------------------------------- District Judge Susan J. Dlott granted in part and denied in part Defendants' motion to dismiss in the case, Quincy C. Daniels, on behalf of himself and others similarly situated, Plaintiff, v. City of Wyoming, et al., Defendants, Case No. 1:15-cv-507, (S.D. Ohio) Plaintiff Daniels is an African-American resident of Butler County, Ohio. Daniels was pulled over "for no reason" while driving a 2014 Cadillac with dealer plates on Springfield Pike in Wyoming, Ohio by Officer Tom Riggs of the Wyoming Police Department (WPD). Before initiating the traffic stop, Officer Riggs followed behind Daniels's vehicle for approximately one mile "and then got on the passenger side of Daniels' vehicle whereby looking to see who was inside of Daniels' vehicle." Officer Riggs then pulled over Daniels's vehicle, questioned Daniels about the vehicle and the dealer plates, and asked to see his driver's license. Officer Riggs did not issue Daniels a citation "because [he had] not committed a traffic offense." Daniels did not file a complaint with the WPD regarding this traffic stop because of an incident that had occurred approximately two weeks earlier on December 15, 2013. Daniels asserts that he had been assaulted by an unnamed person in front of WPD Officer Mike World on an unspecified date, but that Officer World would not permit him to file a complaint about the assault against the assailant or Officer World himself. Daniels telephoned WPD Chief Baldauf on the same date and left a message, but he did not speak to Chief Baldauf. Daniels asserts that he "has suffered psychological damage" and that "there is an increased risk of future harm to him," apparently as a result of these two incidents. Daniels also alleges that two other individuals were subjected to racial profiling by WPD police officers. First, on February 28, 2015, Nico L. Jenkins, who is black, was issued a citation "for menacing and [for an] unleashed dog" by Officer Jeffrey Banker. She was threatened by Officer Banker that she would be arrested if she did not go to the police station, but was denied the opportunity "to tell her side of the story" at the station. The menacing charge was dismissed. Damien Lee Johnson was stopped while driving, but not issued a citation, by Officer Brian Berigan "for no apparent reason other than race." Daniels alleges that the WPD "issued a relatively high number of traffic citations on a two mile stretch, to a relatively high number of non-whites and have gained great wealth from non-whites as a result of these citations." Defendants move for dismissal of the amended class action complaint. In her Order dated February 10, 2016 available at http://is.gd/fdmzHofrom Leagle.com, Judge Dlott granted in part and denied in part Defendants' motion to dismiss. The Court dismisses all claims against the City of Wyoming,6 the Wyoming Police Department, City Manager Lynn Tetley, Chief Gary Baldauf, Officer Mike World, Officer Brian Berigan, and Officer Jeffrey Banker. The Court further dismisses the due process, equal protection, and intentional infliction of emotional distress claims against Officer Tom Riggs. Additionally, the Court strikes the class allegations in the Amended Class Action Complaint. However, the Court does not dismiss Daniels's claims against Officer Tom Riggs for a violation of his rights under the Fourth Amendment. Finally, for the sake of clarity, the Court orders that Daniels file a Second Amended Complaint deleting the class allegations and the dismissed claims within three weeks of the date of the present Order. Glenda A Smith, Esq. of Glenda A Smith LLC serves as counsel for Plaintiff Quincy C. Daniels Gary Edward Becker, Esq. -- gary.becker@dinsmore.com -- and Nathan B Spencer, Esq. -- nathan.spencer@dinsmore.com -- of Dinsmore & Shohl, LLP serve as counsel for Defendant Wyoming City YUM! BRANDS: Trial in Taco Bell Wage & Hour Actions Began Feb. 22 ----------------------------------------------------------------- Yum! Brands, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 16, 2016, for the fiscal year ended December 26, 2015, that trial was set to begin on February 22, 2016, in the case, Taco Bell Wage and Hour Actions. The Company and Taco Bell were named as defendants in a number of putative class action suits filed in 2007, 2008, 2009 and 2010 alleging violations of California labor laws including unpaid overtime, failure to timely pay wages on termination, failure to pay accrued vacation wages, failure to pay minimum wage, denial of meal and rest breaks, improper wage statements, unpaid business expenses, wrongful termination, discrimination, conversion and unfair or unlawful business practices in violation of California Business & Professions Code Sec.17200. Some plaintiffs also seek penalties for alleged violations of California's Labor Code under California's Private Attorneys General Act as well as statutory "waiting time" penalties and allege violations of California's Unfair Business Practices Act. Plaintiffs seek to represent a California state-wide class of hourly employees. These matters were consolidated, and the consolidated case is styled In Re Taco Bell Wage and Hour Actions. The In Re Taco Bell Wage and Hour Actions plaintiffs filed a consolidated complaint in June 2009, and in March 2010 the court approved the parties' stipulation to dismiss the Company from the action, leaving Taco Bell as the sole defendant. Plaintiffs filed their motion for class certification on the vacation and final pay claims in December 2010, and on September 26, 2011 the court issued its order denying the certification of the vacation and final pay claims. Plaintiffs then sought to certify four separate meal and rest break classes. On January 2, 2013, the court rejected three of the proposed classes but granted certification with respect to the late meal break class. The parties thereafter agreed on a list of putative class members, and the class notice and opt out forms were mailed on January 21, 2014. Per order of the court, plaintiffs filed a second amended complaint to clarify the class claims. Plaintiffs also filed a motion for partial summary judgment. Taco Bell filed motions to strike and to dismiss, as well as a motion to alter or amend the second amended complaint. On August 29, 2014, the court denied plaintiffs' motion for partial summary judgment. On that same date, the court granted Taco Bell's motion to dismiss all but one of the California Private Attorney General Act claims. On October 29, 2014, plaintiffs filed a motion to amend the operative complaint and a motion to amend the class certification order. On December 16, 2014, the court partially granted both motions, rejecting plaintiffs' proposed on-duty meal period class but certifying a limited rest break class and certifying an underpaid meal premium class, and allowing the plaintiffs to amend the complaint to reflect those certifications. On December 30, 2014, plaintiffs filed the third amended complaint. On February 26, 2015, the court denied a motion by Taco Bell to dismiss or strike the underpaid meal premium class. Class notice was issued to the two recently-certified classes, and discovery and expert discovery commenced. On October 5, 2015, Taco Bell filed a motion to decertify the classes. The same day, Plaintiffs filed a motion for summary judgment. In December, 2015, the court denied both motions. All motion and discovery practice is complete and trial was set to begin on February 22, 2016. Taco Bell denies liability and intends to vigorously defend against all claims in this lawsuit. YUM has over 42,000 restaurants in more than 130 countries and territories. Primarily through the three concepts of KFC, Pizza Hut and Taco Bell (the "Concepts"), the Company develops, operates, franchises and licenses a worldwide system of restaurants which prepare, package and sell a menu of competitively priced food items. Units are operated by a Concept or by independent franchisees or licensees under the terms of franchise or license agreements. Franchisees can range in size from individuals owning just one restaurant to large publicly- traded companies. YUM! BRANDS: Expects "Rodriguez" Suit to Be Dismissed ----------------------------------------------------- Yum! Brands, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on February 16, 2016, for the fiscal year ended December 26, 2015, that the Company expects the case, Bernardina Rodriguez v. Taco Bell Corp., to be dismissed. On May 16, 2013, a putative class action styled Bernardina Rodriguez v. Taco Bell Corp. was filed in California Superior Court. The plaintiff seeks to represent a class of current and former California hourly restaurant employees alleging various violations of California labor laws including failure to provide meal and rest periods, failure to pay hourly wages, failure to provide accurate written wage statements, failure to timely pay all final wages, and unfair or unlawful business practices in violation of California Business & Professions Code Sec.17200. This case appears to be duplicative of the In Re Taco Bell Wage and Hour Actions case. Taco Bell removed the case to federal court and, on June 25, 2013, plaintiff filed a first amended complaint to include a claim seeking penalties for alleged violations of California's Labor Code under California's Private Attorneys General Act. Taco Bell's motion to dismiss or stay the action in light of the In Re Taco Bell Wage and Hour Actions case was denied on October 30, 2013. In April 2014 the parties stipulated to address the sufficiency of plaintiff's legal theory as to her discount meal break claim before conducting full discovery. A hearing on the parties' cross- summary judgment motions was held on October 22, 2014, and on October 23, 2014, the court granted Taco Bell's motion for summary judgment on the discount meal break claim and denied plaintiff's motion. Plaintiff is no longer actively pursuing this matter, and Taco Bell expects the matter to be dismissed. Taco Bell denies liability and intends to vigorously defend against all claims in this lawsuit. YUM has over 42,000 restaurants in more than 130 countries and territories. Primarily through the three concepts of KFC, Pizza Hut and Taco Bell (the "Concepts"), the Company develops, operates, franchises and licenses a worldwide system of restaurants which prepare, package and sell a menu of competitively priced food items. Units are operated by a Concept or by independent franchisees or licensees under the terms of franchise or license agreements. Franchisees can range in size from individuals owning just one restaurant to large publicly- traded companies. * Aerospace, Automotive Worst For Gender Equality, Report Shows --------------------------------------------------------------- Clare O'Connor, writing for Forbes, reports that Silicon Valley and Wall Street are often -- and rightly! -- the focus of scrutiny when talk turns to gender inequality in the workplace. Women make up just 22.5% of senior roles at large tech firms. At the 22 largest banks and financial firms, women comprise 49% of middle managers, but only 16.6% of senior managers. Things aren't always rosy for the few who do make it to the top. 60% of women in Silicon Valley with a decade or more under their belts report having been sexually harassed. Class-action discrimination suits at investment banks are a dime a dozen. Still, according to data from women workers themselves, tech and finance aren't the worst industries for gender inequality. Fairygodboss, a Glassdoor-like online job review site for women, analyzed some 4,800 reviews across 30 industries from over 20,000 user submissions. "Essentially, we analyzed which industries were the ones women thought were the most gender equitable to work in, and also looked at average job satisfaction ratings across the employers in these industries," said Fairygodboss cofounder Georgene Huang, who launched the company in 2015 with fellow former Dow Jones executive Romy Newman based on her own experience of job-hunting while pregnant. Based on answers to the question, "do you think men and women are treated fairly and equally at your employer?", aerospace performed dismally, with just 27% of women responding positively. Also lagging: companies in the industrial sector, where 30% of women workers said they feel they're treated like equals. In the historically male-dominated automotive industry, 38% of women employees reported fair treatment. Technology and finance were both ranked in the middle third, with 56% and 57% of respective respondents feeling their employers treat them as they do men. Perhaps unsurprisingly, traditionally female-dominated sectors came out on top in this report. At number one was public relations, with 75% of women workers reporting equal treatment. Cosmetics placed second with 71%. * CFPB Director Attacks Consumer Agreement Arbitration Provisions ----------------------------------------------------------------- Zane Gilmer, Esq. -- zane.gilmer@stinson.com -- of Stinson Leonard Street, in an article for JDSupra Business Advisor, reports that on February 18, 2016, Director Richard Cordray of the Consumer Financial Protection Bureau (CFPB) gave a speech at the American Constitution Society, in which he repeatedly attacked arbitration provisions found in consumer agreements and set the stage for CFPB rulemaking that will likely greatly restrict the use of arbitration provisions going forward. The CFPB's Arbitration Study Director Cordray's remarks largely summarized the CFPB's earlier statements and consideration of proposed rules related to the restriction of arbitration provisions in consumer agreements related to financial products and services. For instance, in March 2015, pursuant to a mandate under The Dodd-Frank Wall Street Reform and Consumer Protection Act, the CFPB released its Arbitration Study: Report to Congress 2015, which is a report on a study conducted by the CFPB to evaluate the impact of arbitration provisions on consumers. -- Among other things, the study concluded that arbitration clauses "restrict consumers' relief for disputes with financial service providers by allowing companies to block group lawsuits;" -- most arbitration provisions include a prohibition against consumers bringing class actions; -- very few consumers individually pursue relief against businesses through arbitration or federal courts; and -- more than 75 percent of consumers in the credit card market did not know if they had agreed to arbitration in their credit card contract. -- As a result of the study, the CFPB began considering rule proposals that would ban companies from including arbitration clauses that block class action lawsuits in their consumer contracts, unless and until the class certification is denied by the court or class claims are dismissed by the court; -- require companies to that use arbitration clauses for individual disputes to submit to the CFPB all arbitration claims and awards (which the CFPB may publish on its website for the public to view) so that the CFPB can ensure that the process is fair to consumers and determine whether further restrictions on arbitrations should be undertaken; and -- apply to nearly all consumer financial products and services that the CFPB regulates, including credit cards, checking and deposit accounts, prepaid cards, money transfer services, certain auto loans, auto title loans, small dollar or payday loans, private student loans, and installment loans. Arbitration Rulemaking is Imminent Director Cordray's latest comments make clear that restricting arbitration provisions, including banning class action waivers in arbitration provisions, is a key priority for the CFPB. In fact, Director Cordray stated that "after carefully reflecting on the findings of our study, the Bureau has decided to launch a rulemaking process to protect consumers." The CFPB's next step in that process is to "publish a Notice of Proposed Rulemaking and seek public comment from all stakeholders prior to finalizing a rule." Companies should pay close attention to the rulemaking process as it could have significant legal implications. For example, if the CFPB passes arbitration restrictions that include class action waivers, companies that currently have such provisions in their consumer contracts will need to reevaluate those provisions. One of the major considerations companies will face is whether to eliminate arbitration provisions completely from their contracts in order to preserve the right to maintain class action waivers. The CFPB's Arbitration Study is Marred with Controversy Despite the CFPB's reliance on its arbitration study to justify its current rulemaking efforts to restrict arbitration clauses, the study has been widely criticized as having relied on insufficient data and ignoring other information that would lead to conclusions not favorable to the CFPB's initiative to eliminate class action waivers. In other words, the CFPB is accused of using flawed and insufficient data to reach its desired outcome of restricting arbitration clauses and class action waivers. One such critique, titled The Consumer Financial Protection Bureau's Arbitration Study: A Summary and Critique, was issued by law professors from the University of Virginia School of Law and George Mason University School of Law. * No End in Sight to NLRB Standoff Over Arbitration Agreements -------------------------------------------------------------- William J. Emanuel, Esq. -- wemanuel@littler.com -- Elizabeth Parry, Esq. -- mparry@littler.com -- Henry Lederman, Esq., and Michael J. Lotito, Esq., of Littler Mendelson PC, in an article for Lexology, report that there seems to be no end in sight to the standoff between the National Labor Relations Board and at least a majority of the federal courts over the legality of arbitration agreements that require employees to waive the right to lead or participate in class or collective actions. The NLRB has issued a barrage of cases in recent months reaffirming and expanding its controversial theory that this requirement violates the National Labor Relations Act, notwithstanding Supreme Court precedent upholding such waivers under the Federal Arbitration Act in cases involving other statutes. In addition, despite losing twice on this issue at the Fifth Circuit Court of Appeals, the NLRB has continued to advocate its theory in that and other circuits. Meanwhile, the appellate courts remain deluged with petitions to review NLRB decisions invalidating class waivers and the agreements in which they are contained. These and related developments are discussed below. NLRB Decisions In D.R. Horton, Inc., 357 NLRB No. 184 (2012), a 3-2 majority of the NLRB decided that requiring employees to agree to a class and collective action waiver in an arbitration agreement violates the NLRA because it deprives employees of the right to engage in protected concerted activity. The Fifth Circuit reversed this decision, however, in view of the Supreme Court precedent upholding class and collective action waivers. D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013) (enforcement of NLRB order denied in relevant part). The NLRB reaffirmed its D.R. Horton theory in a later case, Murphy Oil USA, Inc., 361 NLRB No. 72 (2014). Once again, the Fifth Circuit rejected the NLRB's decision. Murphy Oil USA, Inc.v. NLRB, 808 F.3d 1013 (5th Cir. 2015) (enforcement of NLRB order denied in relevant part). However, the NLRB has announced that it intends to petition the court for an en banc rehearing of this case. Relying on a policy of "nonacquiescence," the NLRB has refused to defer to the rulings of the Fifth Circuit in D.R. Horton and Murphy Oil, and it has continued to issue numerous decisions reaffirming the principle established in those cases. In doing so, the NLRB has rejected numerous defenses raised by employers. For example, the NLRB has held that: The six-month statute of limitations in Section 10(b) of the NLRA is ineffective in such cases, even if employees signed the arbitration agreement more than six months before an unfair labor practice charge was filed with the Board. See PJ Cheese,Inc., 362 NLRB No. 177 (2015). An opt-out provision in an arbitration agreement is also ineffective and itself an additional burden on employees' protected rights to pursue collective action. See On Assignment StaffingServices, Inc., 362 NLRB No. 189 (2015). Note, however, that the Ninth Circuit arguably has reached a contrary conclusion in the Johnmohammadi decision discussed below. Even if an arbitration agreement does not include an express waiver of class and collective actions, it is unlawful if the employer interprets the agreement to bar such actions by moving in court to compel arbitration on an individual basis. See Century Fast Foods, Inc., 363 NLRB No. 97 (2016). The fact that an arbitration agreement permits employees to file claims with administrative agencies, which could then pursue a judicial remedy on behalf of employees as a group, is not an effective defense because access to administrative agencies is not the equivalent of access to a judicial forum where employees themselves may seek to litigate their claims on a collective basis. See SolarCity Corporation, 363 NLRB No. 83 (2015). Note, however, that the Eighth Circuit has reached a contrary conclusion in the Owen v.Bristol Care decision discussed below. An arbitration agreement that precludes collective action in all forums is unlawful even if entered into voluntarily. See Ross Stores, Inc., 363 NLRB No. 79 (2015). The foregoing are only examples of the employer defenses rejected by the NLRB in the numerous cases issued by that agency involving the D.R. Horton theory. Supreme Court Precedent The NLRB's approach to this issue appears to be on a collision course with a series of decisions of the U.S. Supreme Court on the enforceability of class and collective action waivers under the Federal Arbitration Act. In AT&T Mobility v. Concepcion, 563 U.S. 333 (2011), the Court ruled that FAA enforcement of a class action waiver in a standard form contract containing an arbitration agreement overrides a state law prohibiting mandatory arbitration and class action waivers as unconscionable. Subsequently, the Court ruled in CompuCredit Corp. v. Greenwood, 132 S.Ct. 665 (2012), that arbitration agreements should be enforced according to their terms, even for claims under federal statutes, unless the FAA's mandate has been overruled by a "contrary congressional command." In addition, the Supreme Court ruled in American Express Co. v. Italian Colors Restaurant, 133 S.Ct. 2304 (2013), that class action waivers in arbitration agreements are enforceable under the FAA, even if the plaintiff's cost of individually arbitrating a federal statutory claim exceeds the potential recovery and arbitration is economically unfeasible. And in the most recent decision, DirecTV, Inc. v. Imburgia, 136 S.Ct. 463 (2015), the Court upheld a class action waiver in the arbitration provision of a service agreement under the FAA, rejecting a claim that the waiver could be invalidated by state law. It appears likely that the Supreme Court will ultimately resolve this apparent conflict between its precedent under the FAA and the NLRB's theory under the NLRA. At least until the recent passing of Justice Scalia, it seemed unlikely that the Court would defer to the NLRB in light of that precedent, although this assessment could change if there is a shift in the control of the Supreme Court. But in several other contexts and over the course of many years, the Supreme Court has reined in the NLRB when that agency's remedial preferences trenched on other federal statutes. See Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002) and cases cited therein. It should be noted, however, that a confrontation over this issue might be avoided if a change occurs in the control of the NLRB. In this regard, strong dissents by two Board members in numerous cases upholding the D.R. Horton theory suggest that it could be rejected if such a change in control occurs next year as a result of the upcoming presidential election. Pending D.R. Horton Appeals At last count, at least 28 cases involving the D.R. Horton issue were pending in the federal appellate courts on review from decisions of the NLRB. Under federal law, employers have three appellate court options when seeking review of a decision of that agency -- (1) the circuit where the unfair labor practice allegedly took place; (2) any circuit in which the employer transacts business; or (3) the D.C. Circuit. 29 U.S.C. Sec 160(f). Not surprisingly, national companies have favored the Fifth Circuit in view of that court's decisions in the D.R. Horton and Murphy Oil cases. As a result, at least 20 cases are pending in that circuit. The remaining cases are divided among four other circuits -- the Ninth (four cases), the Eighth (two cases), the Third (one case); and the D.C. Circuit (one case). All of these cases are pending on petitions for review filed by employers from adverse decisions of the NLRB involving essentially the same issue. This appellate scene is highly unusual and might be unprecedented. As a result of the sheer volume of appeals, the NLRB has recently taken the unusual step of requesting the Fifth Circuit to hold in abeyance many of the cases pending in that circuit until the Board's petition for an en banc rehearing of the Murphy Oil decision has been resolved. So far, it appears the court is complying with that request. In a favorable development for employers, when oral argument was recently held in one of the pending Eighth Circuit cases, that court reportedly declined to hear argument on the D.R. Horton issue in view of contrary circuit law. Cellular Sales of Missouri v. NLRB, Case Nos. 15-1860, 15-1620 (8th Cir.). It appears that the contrary circuit law was established in a private party case, Owen v. Bristol Care, discussed below. Private Party Cases The NLRB's D.R. Horton theory has also been rejected by federal appellate courts in several cases involving employment-related class or collective actions filed by private parties, typically in the context of motions to compel arbitration. For example: The Second Circuit upheld a class action waiver in an arbitration agreement and refused to defer to the NLRB's decision in D.R. Horton. Sutherland v. Ernst & Young, 726 F.3d 290 (2d Cir. 2013). The Eighth Circuit upheld a class action waiver in such an agreement, stating it did not owe any deference to the NLRB's reasoning in D.R. Horton. Owen v. Bristol Care, Inc., 702 F.3d 1050 (8th Cir. 2013). The Eleventh Circuit relied on the Fifth Circuit's decision rejecting the D.R. Horton theory in finding that the FLSA does not prohibit an employer from including a collective action waiver in an arbitration agreement. Walthour v. Chipio Windshield Repair, LLC, 745 F.3d 1326 (11th Cir. 2014). The Ninth Circuit found that it was not necessary to rule on the Board's D.R. Horton theory in granting an employer's motion to compel arbitration of wage and hour claims, because the plaintiff had failed to raise that argument before the district court. However, the court noted in detail that the Eighth Circuit and several federal district courts had refused to follow the Board's theory. Richards v. Ernst & Young, LLP, 744 F.3d 1072 (9th Cir. 2013). Subsequently, a different Ninth Circuit panel issued two decisions that raised the D.R. Horton theory but avoided deciding whether it was valid or must otherwise be limited. In Johnmohammadi v. Bloomingdale's, Inc., 755 F.3d 1072, 1077 (9th Cir. 2014), the court granted an employer's petition to compel arbitration of an overtime claim because the employee could have chosen to opt out of an arbitration agreement during a 30-day window period, but chose not to do so. The court stated that having freely elected to arbitrate employment-related disputes on an individual basis, the employee could not claim that enforcement of the agreement violated the Norris-LaGuardia Act or the NLRA. Thus, the court distinguished D.R. Horton, which by its terms addressed only mandatory pre-dispute agreements. In the companion Davis decision, 755 F.3d 1089 (9th Cir. 2014), the court reversed a federal district court's denial of an employer's motion to compel arbitration and remanded the case, but declined to state an opinion on whether a mandatory arbitration program would violate the NLRA. Until recently, the NLRB did not participate in private party cases because they did not involve review of a decision of that agency. However, the NLRB has recently changed course by filing amicus curiae briefs in such cases in support of its theory. So far, the Board has filed briefs in three of these cases, all of which are still pending. Morris v. Ernst & Young, Case No. 13- 16599 (NLRB Amicus Brief filed 11/6/2015, 9th Cir.); Lewis v. Epic Systems Corp., Case No. 15-2997 (NLRB Amicus Brief filed 12/16/15, Motion granted for NLRB to participate in oral argument 1/12/16, 7th Cir.); and Patterson v. Raymours Furniture Co., Case No. 15- 2820 (NLRB Amicus Brief filed on 12/23/15, 2d Cir.). The Epic Systems case referred to above is unusual because the federal district court had relied on the NLRB's D.R. Horton theory to rule against the employer notwithstanding the Supreme Court precedent described above. In addition, a federal district court in California recently reached a similar decision. Totten v. KelloggBrown & Root, LLC, Case No. ED CV 14-1766, 2016 WL 316019 (1/22/16 C.D. Cal.). NLRB's Appellate Strategy It is clear that the NLRB will not defer to the Fifth Circuit's view of the law as set forth in the court's D.R. Horton and Murphy Oil decisions. Instead, the Board could seek to obtain a ruling from the U.S. Supreme Court that the NLRA or Norris-LaGuardia Act overrides the FAA on the issue of class and collective action waivers. In pursuing its strategy, the NLRB will follow its policy of "nonacquiescence," which involves a refusal to defer to adverse decisions of the federal appellate courts except as to "the law of the case," while eventually attempting to advance the issue to the Supreme Court's docket by filing a petition for certiorari with that court. In some other cases in the past, this process has lasted for several years. And, of course, an employer on the losing end of a future circuit court of appeal ruling likewise could then claim that the circuits were split on this issue warranting Supreme Court review and settlement of the issue. Under normal circumstances, the NLRB would be required to show a "split in the circuits" before the Solicitor General will approve filing a petition for certiorari with the Supreme Court. That split may emerge after decisions are announced in any of the pending cases discussed above, and, as noted, a split would mean that an employer that lost on the D.R.Horton issue could itself seek review. The NLRB's amicus appearances in private party cases appear to be aimed at advancing the ball toward a split that it hopes will develop. Fifth Circuit's View of "Nonacquiescence" One further complication for the NLRB involves a position asserted by the Fifth Circuit in the Murphy Oil decision regarding the policy of nonacquiecence described above. In that case, the employer argued that the court should hold the NLRB in contempt for its "defiance" of the court's decision in D.R. Horton. The court declined to condemn the Board's nonacquiescence, but it stated that an "administrative agency's need to acquiesce to an earlier circuit court decision when deciding similar issues in later cases will be affected by whether the new decision will be reviewed in that same circuit." In addition, the court added the observation that the "Board may well not know which circuit's law will be applied on a petition for review." These statements by the Fifth Circuit suggest that an employer involved in a D.R. Horton case might consider notifying the Board during the administrative proceedings that it would seek appellate review of an adverse decision in that circuit -- assuming it would have that option. As discussed above, this would include any employer that transacts business in the Fifth Circuit, or an employer involved in a case where the unfair labor practice allegedly took place in that circuit. NLRB Rulings on Related Issues In addition to deciding that employees cannot be required to agree to class and collective action waivers in an arbitration agreement, the NLRB has issued several decisions involving two related issues. First, the Board has ruled in numerous cases that an arbitration agreement was unlawful because complicated language might cause employees to construe the agreement as prohibiting them from filing unfair labor practice charges with the NLRB. For example, see Everglades College, Inc., 363 NLRB No. 73 (2015). This is essentially a drafting problem that employers should avoid because it could complicate an appeal to the federal courts from an NLRB decision on the issue of class and collective action waivers. For example, although the employer prevailed on the main issue in the appeal of the D.R. Horton case as discussed above, the court also found that the employer had violated the NLRA in that case because employees would interpret the arbitration agreement as prohibiting the filing of charges with the NLRB. Second, the NLRB has decided that an employer could not require employees to agree to a class and collective action waiver in a personnel document that did not also include an agreement to arbitrate employment-related claims. For example, see Logisticare Solutions, Inc., 363 NLRB No. 85 (2015). Such language should be avoided because the absence of an agreement to arbitrate claims precludes reliance on the FAA, which is critical in the defense of such cases. * Private Class-Action Plaintiffs' Law Firms Eye Equal Pay Issues ----------------------------------------------------------------- Scott M. Pechaitis, Esq. -- Scott.Pechaitis@jacksonlewis.com -- of Jackson Lewis P.C., in an article The National Law Review, reports that on February 1st, the EEOC announced it would begin requiring employers to submit information on employee wages and work hours broken down by gender, race and EEO-1 category as part of its annual EEO-1 reporting process. For the first time, the EEOC (and the OFCCP) will have nationwide data on employee pay to help identify employers who may be unwittingly contributing to the wage gap by paying women less than men for the same type of work without a legitimate business reason for doing so, or by steering women into lower paying positions. There is no doubt this will lead to an increase in class-based investigations by EEOC under Title VII and the Equal Pay Act. But the EEOC is not the only one looking closely at equal pay issues. Indeed, the EEOC's announcement comes at a time when the nation is experiencing a heightened awareness of equal pay issues. National celebrities like Patricia Arquette are speaking out on the issue sparking a public debate across social media -- when Twitter is afire with equal pay discussions, it is safe to call it a national conversation. The private plaintiffs' bar has also been paying attention to compensation issues, as the federal government and some states has implemented new rules making it easier to establish claims of pay discrimination. The strictest of these new laws, California's Fair Pay Act, took effect on January 1. Under this Act, employees in California are no longer required to show they were paid less than a member of the opposite sex for "equal" work in the same establishment -- they can now make a prima facie case under state law based on colleagues doing "substantially similar" work, regardless of location. New York also amended its equal pay laws in January, making it easier for employees in that state to sue their employers for pay discrimination. In several other states, changes to equal pay laws have recently been enacted or are currently being considered, including Connecticut, Colorado, Delaware, Illinois, Massachusetts, North Dakota, Oregon, and Washington. Adding fuel to the fire of employee awareness, many of these new laws include "pay transparency" requirements that make it unlawful to take adverse action against employees for asking about or talking with colleagues about compensation. The increased attention to equal pay has already resulted in an uptick in complaints filed by private class-action plaintiffs' law firms. In many cases, pay discrimination may be an attractive "tack on" claim for plaintiffs to include in a complaint alleging another type of discrimination, or even in a class or collective wage-and-hour action. One thing that makes pay claims particularly attractive for plaintiffs is the availability of data. All employers are required to keep copious pay records. To a private plaintiff law firm, for every one person who walks in the door alleging pay discrimination, there may be dozens or even hundreds of other potential clients identifiable in the employer's data. The EEOC may have just made the task of finding those other potential claims easier. Now that (it appears) employers will be required by EEOC to prepare annual reports on employee pay, they should anticipate private plaintiffs' lawyers will be seeking to obtain copies of those reports and analyzing them for class-based claims of pay discrimination. So, What Should Employers Do Now? In the wake of the increased enforcement of equal pay laws on both the federal and state level, all employers should be reviewing their pay policies and practices to ensure they comply with current law and are not creating risk for the company. Employers should also periodically analyze their pay data with the help of qualified statisticians or other experts. Moreover, it is now more important than ever that these analyses be conducted under the attorney-client privilege -- the EEOC and private plaintiffs' lawyers are going to ask for copies of pay analyses, and there is nothing worse than having the results of your own analysis used against you. * Scalia's Death May Impact Future of Class Action Litigation ------------------------------------------------------------- Scott Flaherty and Ross Todd, writing for The Recorder, reports that U.S. Supreme Court Justice Antonin Scalia penned three majority opinions that shaped the class action landscape, but now the court must grapple with key issues that linger. What does the death of U.S. Supreme Court Justice Antonin Scalia mean for the future of class action litigation? In 2011 Justice Scalia authored the majority opinion in AT&T v. Concepcion, which held that arbitration agreements that require consumers to waive their class action rights are valid. A few months later, Justice Scalia wrote for the majority in Wal-Mart v. Dukes, decertifying a nationwide employment class action alleging gender bias across the country. There Justice Scalia found that the workers' individual claims overwhelmed common, classwide issues. In Comcast v. Behrendin 2013, Scalia instructed lower courts to consider whether plaintiffs have a viable model to show classwide damages before certifying a class action. Summing up his impact on class actions, Donn Pickett of Morgan, Lewis & Bockius called Justice Scalia "the architect of a dramatic shift in class action standard." Before Justice Scalia died, the justices heard Tyson Foods v. Bouaphakeo, brought by employees seeking payment for time spent donning and doffing protective gear. That case asked the court to weigh the standards for class certification where some class members haven't suffered any damages. The case also raises the question of whether a case is suited for class status if the plaintiffs lawyers intend to calculate damages though statistical sampling. The court has not ruled. Other class actions on the Supreme Court's current slate of cases include two appeals from the U.S. Court of Appeals for the Ninth Circuit. Spokeo v. Robins, which has drawn amicus curiae interest from technology companies because of its potential implications for privacy litigation, raises questions about standing for a plaintiff who's suffered no concrete harm. Microsoft v. Baker asks whether appeals courts can review a class certification ruling after the named plaintiffs voluntarily dismiss their case. Lawyers on both sides of the class action bar expressed doubt that the Supreme Court would diverge significantly, at least in the short run, from the principles Scalia laid out. Jeremy Rosen -- jrosen@horvitzlevy.com -- an appellate specialist at Horvitz & Levy, said that although there could be an end to the string of defense-friendly decisions from the court, he doesn't anticipate a "retrenchment" pulling away from Scalia's opinions of the past five years. "I think on some cases there could be a small shift. But it's not going to be nearly the shift that it will be on the big-ticket social issues -- highly charged political cases," Levy said. Joseph Sellers of plaintiffs firm Cohen, Milstein, Sellers & Toll agreed. He said there would likely be an effort by some on the court "to avoid dramatic changes in the jurisprudence in the class action area and others." "It's not going to result in radical changes over a brief period of time," Mr. Sellers said. Gibson, Dunn & Crutcher's Theodore Boutrous Jr., who successfully represented Wal-Mart Stores Inc. and argued opposite Sellers in Dukes, had a similar take. "[Scalia's] leadership on these issues has set the court on a path where I do n't think there will be many major diversions," Mr. Boutrous said. "Through persistence and excellent legal scholarship and persuasion . . . Justice Scalia created a body of law." Still, lawyers may start to feel the impact of Justice Scalia's death as decisions come out in some of the session's big class action cases, said Ben Feuer of the California Appellate Law Group. Mr. Feuer said that he could foresee the court issuing a decision with a 4-4 split in a case like Tyson Foods -- one dealing specifically with a narrow aspect of class action law. That would leave intact the ruling from the U.S. Court of Appeals for the Eighth Circuit and be a win for plaintiffs. But Mr. Feuer said in a case such as Spokeo, where the justices are dealing with "the outer limits" of Congress' power" to establish a legal remedy by statute, there's more incentive to wait until Scalia's replacement is on board. "I could see, perhaps, more of an institutional desire to have it decided by the full court," he said. Lawyers on both sides of the class action bar said Scalia's rulings forced lower court judges and lawyers to focus on the facts of cases at class certification. ********* 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 * * *