/raid1/www/Hosts/bankrupt/CAR_Public/160705.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, July 5, 2016, Vol. 18, No. 133
Headlines
2001 INC: "Bailey" Suit to Recover Overtime Pay, Tips
3M: Tennessee Riverkeeper Files Suit Amid Class Action
AMCO INSURANCE: "Koop" Case Stays in District Court
AMERICAN FAMILY: Rule 23(b)(2) Class Disallowed in "Jalili" Suit
AMERICAN HEALTH: Faces "Frazier" Lawsuit Alleging FLSA Violation
ANDALOU NATURALS: Faces Class Action Over Natural Product Label
APPLE INC: Amazon Issues Credits Following E-Book Settlement
APPLIED UNDERWRITERS: Status Conference Continued to Sept. 26
AUSTRALIA: Yarloop Residents Mull Bushfire Class Action
AUSTRALIA AND NEW ZEALAND: Bank Fees Litigation Updates
AXA EQUITABLE: Shuster Appeals Dismissal of N.J. Suit
BAKERY AND CONFECTIONARY: Settlement Approval Bid Due Aug. 4
BALTIMORE, MD: Gray "Rough Ride" Case v. Officers Dismissed
BANG VENTURES: "Bailey" Suit to Recover Overtime Pay, Tips
BROOKFIELD DTLA: BPO Seeks Reimbursement of Attorneys' Fees
CAFE ANGELIQUE: "Cantor" Suit to Recover Overtime Pay
CALIFORNIA: Boyd Succeeds in Bid to Reduce Defendants' Cost
CALIFORNIA BUSINESS BUREAU: "Ortega" Lawsuit Dismissed
CENLAR FSB: Law Firm Investigates Potential Class Action Claims
CEVA LOGISTICS: Settlement in "Aquino" Case Has Final Approval
CLIMAX PACKAGING: Faces Class Action Following Closure
COCULA RESTAURANT: Faces "De Alba" Suit Under FLSA, Ill. Wage Law
CR BARD: Faces Class Action in Arizona Over Blood Clot Filter
CVS HEALTH: "Bordenet" Sues Over False Advertising
DISTRICT OF COLUMBIA: Court Narrows Claims in "Lewis"
DONATOS PIZZERIA: Faces "Hassan" Lawsuit Seeking to Recover Wages
ELECTRONIC ARTS: Jim Brown Agrees to Accept Voluntary Judgment
ELITE WHEEL: Faces "Acosta" Lawsuit Under FLSA, Whistleblower Act
EXTREME NETWORK: ATRS Wins Lead Plaintiff Bid
FERRING PHARMACEUTICALS: Faces Class Action Over Bravelle Drug
FARMERS GROUP: "Coates" Settlement Deal Has Initial Okay
FIAT CHRYSLER: Yelchin's Death Sparks Cherokee Class Action
FIRST SECURITY: Settlement Remains Subject to Court Approval
FISHBONE SAFETY: Faces "Green" Lawsuit Under FLSA, Col. Wage Act
GLK FOODS: Class Notice to Include Exclusion Request Forms
GOODFELLOWS: "Bailey" Suit to Recover Overtime Pay, Tips
GOOGLE INC: Fiber Alters User Agreement to Avert Class Action
GREAT-WEST LIFE: Judge Certifies Investor Class Action
GSSD INVESTMENTS: "Chiriboga" Suit Alleges FLSA Violation
GYRODYNE LLC: Court Entered Final Order Approving Settlement
HAVEN DEVELOPMENTAL: "Armstead" Lawsuit Alleges Violation of FLSA
HOOPER HOLMES: Settlement Reached in N.J. Class Suit
HORIZON PHARMA: Court Won't Reconsider June 6 Order in "Schaffer"
HURON VALLEY CORRECTIONAL: Stewart Wins Summary Judgment
HYUNDAI MOTOR: Faces "Denberg" Lawsuit Alleging Violation of TCPA
IMMUNOMEDICS INC: "Becker" Sues Over Share Price Drop
INTERTEK TESTING: "Costeiu" Remanded to Sacramento Superior Court
JOE'S KWIK: Faces Class Action Over Unpaid Overtime Wages
JOHNSON & JOHNSON: Transvaginal Mesh Suits Commence in Canada
KAPLAN INC: Response to "Ridley" Class Suit Due July 6
KEY ENERGY: Class Action Parties to Conduct Mediation
KEY ENERGY: Lead Plaintiff Did Not File Amended Complaint
KEY ENERGY: Merit-Based Discovery to Begin in Corpus Christi Suit
KEY ENERGY: Merit-Based Discovery to Begin in Houston Suit
KEYNETICS INC: Court Dismisses "Silverstein" Spam Emails Suit
KRAFT HEINZ: "Brahler" Mislabelling Suit Transferred to N.D. Ill.
KRAFT HEINZ: "Mattley" Mislabelling Suit Transferred to N.D. Ill.
KRAFT HEINZ: "Weiss" Mislabelling Suit Transferred to N.D. Ill.
KRISPY KREME: "Graham" Suit to Bar Krispy Kreme Acquisition
LYFT INC: $27MM Class Action Settlement Gets Preliminary Okay
MARYLAND: Judge Dismissed "Yi" Suit v. DMV
MESSERLI & KRAMER: Judge Trims Down Defenses in FDCPA Suit
METHODIST LE BONHEUR: "Brace" Suit Alleges Pension Underfunding
MORGAN STANLEY: "Johnson" Suit to Recover Overtime Pay
MUTUAL SECURITIES: Milliner's Partial Summary Judgment Bid Okayed
NATERA INC: Motion to Remand Class Actions Pending
NATIONAL AUSTRALIA: August 22 Hearing Set in Bill Swap Rate Case
NATIONAL FOOTBALL: Averts Sunday Ticket Class Action
NEW MEXICO: Summary Judgment for Education Department Reversed
NEW YORK: Muslim Police Officers File Class Action Over Beard Ban
NEW YORK: Sex Offenders File Class Action Over City Shelters
NEWPARK RESOURCES: Settlement Reached in Wage and Hour Suit
PARAMOUNT EQUITY: Faces TCPA Class Action in California
PARTY CITY HOLDCO: New York Class Suit Remains Pending
PETSMART INC: Loomis Appeals From Ruling in "Moore" Class Suit
PHOTOMEDEX INC: Motion to Remove "Cantley" Case Stayed
PORTFOLIO RECOVERY: Appeal Filed From Ruling in "Ciganek" Suit
PROCTER & GAMBLE: "Brenner" Sues Over Toxic Wipes
QBE NORTH AMERICA: "Colon" Suit to Recover Overtime Pay
ROGERS: Voltage Pictures File Reverse Privacy Class Action
SANTANDER HOLDINGS: Motion to Dismiss Class Suit Pending
SANTANDER HOLDINGS: Defending Against Parmelee and Benson Suits
SAVEOLOGY.COM LLC: Court Rules on Competing Discovery Motions
SINGING RIVER: Settlement in "Jones" Case Granted Final Okay
STATE FARM: "Aguilar" Sues Over TCPA Violation
SUNRUN INC: Defending Against Shareholder Complaints in Calif.
SUPREME INTERNATIONAL: Faces Fla. Lawsuit Alleging FLSA Violation
TARGET CORP: "Bundy" Mislabelling Suit Transferred to N.D. Ill.
TARSADIA HOTELS: Greenberg Traurig to Join Defense in "Beaver"
TD BANK: Faces Class Action Over Defective Coin-Counting Machines
TENSION INTERNATIONAL: "Bowers" Labor Suit Transferred W.D. Mo.
TICKETMASTER: Adds $5MM Worth Eligible Tickets for Class Members
TRANSGLOBAL SERVICES: "Byles" Suit to Recover Overtime Pay
TRUMP UNIVERSITY: Deposition Transcripts in Fraud Case Released
TUBERVILLE, SC: Faces Class Action Over Speed Ticket Fines
UBER TECHNOLOGISE: Leaked Documents Reveal Drivers' Earnings
USA TECHNOLOGIES: Dismissal of "Messner" Suit Under Appeal
VALVE: Faces Class Action in Connecticut Over CS:GO Betting Skins
VITAMINERALS: Comprehensive Health Sues Over TCPA Violation
VOLKSWAGEN GROUP: Golf 1.4 TSI Owners File Class Action in Seoul
VOLKSWAGEN GROUP: To Pay Diesel Owners $7,000 Under Settlement
WAIST GANG: Settles Deceptive Marketing Class Action for $5MM
WASHINGTON: Class Certification Bid in "Malone" Suit Denied
WHIRLPOOL CORP: May 2017 Fairness Hearing on "Dei Rossi" Accord
WINGED FOOT: "Clune" Sues Over Equity Misappropriation
XBIOTECH INC: No Trial Or Other Dates Set in Securities Action
* Fiduciary Rules Impose Higher Standard on Financial Advisers
* Judges Wrestle with Consumer Injury Issue in Data-Breach Cases
* New Overtime Rule May Expose Companies to Class Action Risk
* Ruling Highlights Complexity of Multijurisdictional Class Suits
* SA Gold Mining Cos. Say Single Cases Better Than Class Action
* SA Gold Mining Cos. Balk at Ruling on Damages for Widows
*********
2001 INC: "Bailey" Suit to Recover Overtime Pay, Tips
-----------------------------------------------------
Monic Bailey, on behalf of herself and all others similarly
situated, Plaintiff, v. 2001, Inc., a Florida Corporation,
Defendant, Case No. 8:16-cv-01498 (M.D. Fla., June 10, 2016) seeks
to recover unpaid minimum wage, overtime pay, misappropriated
tips, interest, reasonable attorney fees, costs and expenses and
such other relief under the Fair Labor Standards Act.
2001 Inc. misclassified its employees as contractors, thus denying
them the applicable minimum wage and overtime rates.
Plaintiff is a former exotic dancer.
The Plaintiff is represented by:
Chad E. Levy, Esq.
LEVY & LEVY, P.A.
915 Middle River Drive, Suite 518
Fort Lauderdale, FL 33304
Telephone: 954-763-5722
Facsimile: 954-763-5723
Email: chad@levylevylaw.com
3M: Tennessee Riverkeeper Files Suit Amid Class Action
------------------------------------------------------
EcoWatch reports that with a major American river poisoned by
toxic chemicals dumped into it by one of the nation's largest
corporations, Tennessee Riverkeeper has filed a federal lawsuit
against 3M Company and other defendants under the U.S. Resource
Conservation and Recovery Act (RCRA).
The suit alleges the defendants' contamination of the Tennessee
River in and near Decatur, Alabama with perfluorooctanoic acid
(PFOA), perfluorooctane sulfonate (PFOS) and related chemicals has
created an "imminent and substantial endangerment to health and
the environment."
The toxins -- components or byproducts of 3M's manufacture of its
profitable lines of "non-stick" products like Scotchgard and
Stainmaster -- have polluted the Tennessee River's Wheeler
Reservoir, a popular recreation destination and home to various
important wildlife species and ecosystems. The Tennessee
Riverkeeper's RCRA suit seeks to compel the immediate and thorough
clean-up of the contaminants.
As even minimal exposure to PFOS and PFOA is linked to a variety
of lethal health hazards, there exist virtually no safe levels of
the chemicals in the environment. Research strongly indicates
PFOA and PFOS are potent carcinogens and they have also been tied
to birth defects and adverse effects on childhood development,
significantly decreased immune system function, liver tissue
damage and a host of other serious health problems. Consequently,
in a May 2016, the U.S. Environmental Protection Agency (EPA)
announced Drinking Water Health Advisories for PFOA and PFOS of
only 0.07 parts per billion.
However, PFOA and PFOS levels in the Tennessee River near the 3M
site are, respectively, more than 70,000 and 50,000 times higher
than the EPA's safety advisory.
"We don't mind 3M making profitable products -- but, we cannot
tolerate the defendants putting profit ahead of the health of
people, the environment and the river," David Whiteside, Tennessee
Riverkeeper's founder and executive director, said.
"Tennessee Riverkeeper members are both this river's users and
guardians. After nearly five decades of 3M's pollution of the
Tennessee River, where no one has held the defendants accountable,
we felt we needed to act to protect this precious resource and all
the wildlife and restore justice to the hundreds of thousands of
people who rely upon her waters everyday."
Notably, the Tennessee Riverkeeper's lawsuit is wholly separate
from a suit recently filed by local residents. Last fall,
residents and a local water authority initiated a class action
lawsuit against 3M and its subsidiaries, claiming the residents
have ingested dangerous levels of PFOA and PFOS and seeking
monetary damages as a result.
Tennessee Riverkeeper's RCRA suit does not seek money, but instead
demands the broadbased clean-up of the aforesaid contaminants.
"The rights to clean air and water and to a safe secure
environment are fundamental civil rights and as with all
pollution, the injuries from 3M's pollution land hardest on the
backs of Alabama's poor and minority communities," Robert F.
Kennedy, Jr., president of Waterkeeper Alliance, said.
3M has produced PFOS at its Decatur plant since the early 1960s
and PFOA at the site since 1999. On-site disposal practices have
resulted in groundwater contamination and the contamination of the
Wheeler Reservoir of the Tennessee River. 3M has also transported
waste off-site to nearby landfills. The largest volume has been
delivered to the City of Decatur-Morgan County Sanitary Landfill,
owned by co-defendant City of Decatur.
Waste was also transported to landfills owned and/or operated by
other defendants, like the A.J. Morris Landfill (Morris Farms
Landfill), in Hillsboro, Alabama, owned by BFI Waste Systems of
Alabama, LLC. Finally, waste was also received by the now closed
Bert Jeffries Landfill (also called the Browns Ferry Road Site),
which is now owned by 3M.
These landfills all have high levels of groundwater contamination
from PFOA, PFOS and related chemicals. The chemicals are also
found at high levels in the liquid waste, called leachate,
collected from Morris Farms and the Decatur-Morgan County
landfills. The collected leachate from both landfills is sent to
the Dry Creek Waste Water Treatment Plant (WWTP), owned by Decatur
Utilities. The plant has inadequate treatment capabilities for
these chemicals and, therefore, discharges harmful amounts into
the Tennessee River.
Tennessee Riverkeeper's RCRA lawsuit seeks to compel the
immediate, thorough and verifiable clean-up of all of these areas.
Riverkeeper demands that 3M dramatically increase its efforts to
remediate up its on-site groundwater contamination, that
groundwater at the landfill sites be mitigated, that leachate from
the two landfills that collect leachate be treated before
discharge to the Dry Creek WWTP and that the WWTP treat its
discharge to remove these chemicals before discharge to the
Tennessee River. Riverkeeper further asks that 3M be held
responsible for the required remediation at the off-site
facilities.
"3M profited for decades off of the products it produced that
polluted the Tennessee River and now it needs to live up to its
moral responsibility -- and its legal obligation -- to do and
spend what it is necessary to expeditiously eliminate the threats
to human health and the environment that these contaminants
cause," Matsikoudis & Fanciullo, a New Jersey law firm that is
representing the Tennessee Riverkeeper, said. Mark Martin,
Tennessee Riverkeeper's chief prosecuting attorney, also
represents the nonprofit.
AMCO INSURANCE: "Koop" Case Stays in District Court
---------------------------------------------------
Judge Laurel Beeler denied the plaintiff's motion to remand the
case captioned JAMIE KOOP, Plaintiff, v. AMCO INSURANCE COMPANY,
Defendant, Case No. 16-cv-01963-LB (N.D. Cal.).
A full-text copy of Judge Beeler's June 27, 2016 amended order is
available at https://is.gd/oagbv4 from Leagle.com.
The case involves a bad-faith insurance claim for alleged wrongful
delays in paying-out policy benefits. Jamie Koop alleged that,
after she was injured by an underinsured motorist, AMCO wrongfully
denied her claims under the parties' insurance contract. Koop
sued in California State court but AMCO removed the case upon
learning that Koop valued the underlying damages at near or
exceeding "six figures."
Jamie Koop, Plaintiff, represented by W. Christian Krankemann,
Krankemann Petersen LLP.
AMCO Insurance Company, Defendant, represented by Mengmeng Zhang
-- mengmeng.zhang@dentons.com -- Dentons US LLP & Sonia Renee
Martin -- sonia.martin@dentons.com -- Dentons US LLP.
AMERICAN FAMILY: Rule 23(b)(2) Class Disallowed in "Jalili" Suit
----------------------------------------------------------------
In the case captioned MIKE JALILI, individually and on behalf of
others similarly situated, Plaintiffs, v. AMERICAN FAMILY MUTUAL
INSURANCE COMPANY, Defendant, No. 2:15-cv-04200-NKL (W.D. Mo.),
Judge Nanette K. Laughrey granted in part and denied, in part, the
plaintiff's motion to amend the complaint. The judge also denied
the plaintiff's motion to bifurcate.
Judge Laughrey permitted the plaintiff to amend his complaint for
the sole purpose of adding class representatives. However, the
plaintiff may not amend his complaint to add the proposed class
under Federal Rule of Civil Procedure 23(b)(2).
A full-text copy of Judge Laughrey's June 27, 2016 order is
available at https://is.gd/uOc5fG from Leagle.com.
The action was filed on July 29, 2015, in the Circuit Court of
Cole County, Missouri. The case was subsequently removed to the
Western District of Missouri on September 22, 2015.
In the complaint, the plaintiff alleged that the defendant
American Family Mutual Insurance Company routinely breached the
terms of the homeowners insurance policies it issued in Missouri
by failing to include an amount for sales tax on materials at the
time it makes actual cash value (ACV) payments on claims. The
complaint alleged the existence of a single class under Federal
Rule of Civil Procedure 23(b)(3), and sought a determination from
the court that American Family is liable for breaching the terms
of the policies and owes the class members damages for the
underpayments.
The initial complaint named two plaintiffs, Mike Jalili and Holly
Lambert. On April 20, 2016, Holly Lambert was voluntarily
dismissed from the case because the parties learned that she had
been paid for the sales tax on her ACV claim. Therefore, Mike
Jalili is the only named plaintiff remaining in the lawsuit.
Mike Jalili, Holly Lambert, Plaintiff, represented by David L.
Steelman, Steelman, Gaunt & Horsefield, Derrick L. Morton --
morton@ntmdlaw.com -- Nelson Terry Morton DeWitt Paruolo & Wood,
pro hac vice, Douglas A. Terry -- terry@ntmdlaw.com -- Nelson
Terry Morton DeWitt Paruolo & Wood, pro hac vice & Thomas H.
Hearne -- thhearne@hplawfirm.com -- Hearne & Pivac.
American Family Mutual Insurance Company, Defendant, represented
by Jeffrey S. Roberts -- jeff.roberts@faegrebd.com -- pro hac
vice, Lisa Bolliger -- lbolliger@sakg.com -- Scharnhorst Ast
Kennard Griffin PC, Ll. Rhyddid Watkins --
rhyddid.watkins@faegrebd.com -- pro hac vice, Margaret Young Cass
-- maggie.cass@faegrebd.com -- pro hac vice, Michael S. McCarthy
-- michael.mccarthy@faegrebd.com -- pro hac vice & James D.
Griffin -- jgriffin@sakg.com -- Scharnhorst Ast Kennard Griffin,
PC.
AMERICAN HEALTH: Faces "Frazier" Lawsuit Alleging FLSA Violation
----------------------------------------------------------------
SAMARA FRAZIER, individually, and on behalf all others similarly
situated, Plaintiff, v. AMERICAN HEALTH IMAGING, INC., Defendant,
Case 1:16-cv-02148-ELR (N.D. Ga., June 22, 2016), seeks a judgment
awarding overtime pay, liquidated damages, prejudgment interest,
costs, and attorney's fees under the Fair Labor Standards Act.
Defendant provides diagnostic imaging services to its customers
and referring physicians.
The Plaintiff is represented by:
C. Andrew Head, Esq.
Jerilyn E. Gardner, Esq.
HEAD LAW FIRM, LLC
1170 Howell Mill Rd., NW, Suite 305
Atlanta, GA 30318
Phone: (404) 924-4151
Fax: (404) 796-7338
E-mail: ahead@headlawfirm.com
jgardner@headlawfirm.com
- and -
Marcus G. Keegan, Esq.
KEEGAN LAW FIRM, LLC
2987 Clairmont Road NE, Suite 225
Atlanta, GA 30329
Phone: (404) 842-0333
Fax: (404) 920-8540
E-mail: mkeegan@keeganfirm.com
ANDALOU NATURALS: Faces Class Action Over Natural Product Label
---------------------------------------------------------------
Madison-St. Clair Record reports that a Monroe County woman
alleges a hair care company falsely advertises its products as
natural.
Cassandra York filed a complaint on behalf of all others similarly
situated citizens of Illinois on June 15 in St. Clair County
Circuit Court against Andalou Naturals Inc. alleging violation of
the Illinois Consumer Fraud and unjust enrichment.
According to the complaint, the plaintiff alleges that the
defendant allegedly deceived class members into believing that the
ingredients in its hair care products are natural, when in fact
its products contains synthetic and harmful chemicals. She
alleges she would not have purchased the product or paid less for
it had she known of the artificial ingredients.
The plaintiff requests a trial by jury and seeks certification
that this is a class-action suit, appointing her as class
representative, compensation for all damages, prejudgment and
post-judgment interest, attorneys' fees and costs and for all
other relief as may be just and proper. She is represented by
Matthew H. Armstrong of Armstrong Law Firm LLC in St. Louis,
Missouri; David C. Nelson of Nelson & Nelson, Attorneys at Law PC
in Belleville; and Stuart L. Cochran of Cochran Law PLLC in
Dallas, Texas.
St. Clair County Circuit Court case number 16-L-312
APPLE INC: Amazon Issues Credits Following E-Book Settlement
------------------------------------------------------------
Tribune Media Wire reports that Amazon is issuing credits to
customers after settling a $400 million e-book lawsuit.
The lawsuit was filed against Apple Inc. and five publishing
companies for their roles in an alleged e-book price-fixing
scheme, according to Hagens Berman, a class-action litigation
firm.
Eligible customers made e-book purchases between April 1, 2010 and
May 21, 2012. According to the terms of the settlement, consumers
will receive a $6.93 credit for every e-book, which was a New York
Times bestseller, and a $1.57 credit for other e-books.
According to the attorneys involved in the settlement, the price-
fixing collusion involving Apple and the publishers caused e-books
pricing to increase 30-50 percent.
Amazon said Apple "settled several antitrust lawsuits about eBook
prices that were brought against Apple by a coalition of state
Attorneys General, and by a Plaintiff Class. Amazon was not a
party to these lawsuits. Under the settlements, Apple provided
funds for credits that were applied directly to Amazon accounts of
eligible customers in June 2016."
Customers do not need to do anything to receive the credits. The
credit has already been calculated and added to your Amazon
account.
Where do I find the credit?
Go to: https://www.amazon.com/Kindle-
eBooks/b?ie=UTF8&node=14741166011
The available credit will display on this page. If you are not
eligible for the credit, you will see this message: "There is no
eBook settlement credit associated with this account."
If you received a credit, the amount will be automatically applied
to your next Amazon purchase.
APPLIED UNDERWRITERS: Status Conference Continued to Sept. 26
-------------------------------------------------------------
District Judge William B. Shubb continued the status conference in
the case SHASTA LINEN SUPPLY, INC., on behalf of itself and all
others similarly situated, Plaintiff, v. APPLIED UNDERWRITERS
INC., et al., Defendants, Case No. CV 16-158-WBS-AC (E.D. Cal.),
from July 18, 2016 to September 26, 2016, simultaneously scheduled
with the initial status conference of a related case entitled, Pet
Food Express Ltd. v. Applied Underwriters, Inc., No. 2:16-cv-01211
WBS AC.
The two putative class actions involve similar parties and claims
and the parties agree that it would be beneficial to continue the
initial status conference in this case to coincide with that in
"Pet Food" case so that both actions can coordinate case
management and scheduling issues.
In this case, the corresponding deadlines are extended. Deadline
to confer as required by Federal Rule of Civil Procedure 26(f) is
set on September 5, 2016, and the deadline to submit Joint Status
Report will be on September 12, 2016.
A copy of the court's decision is available at
http://goo.gl/wkmALIfrom Leagle.com.
Shasta Linen Supply, Inc., Plaintiff, represented by Craig E.
Farmer -- cfarmer@farmersmithlaw.com -- Farmer Smith & Lane LLP &
John L. Hall -- jhall@farmersmithlaw.com -- Farmer Smith & Lane
LLP.
Applied Underwriters, Inc., et al., Defendants, represented by
John Russell Stedman -- rstedman@barwol.com -- Hinshaw &
Culbertson LLP, Shand Scott Stephens --
shand.stephens@dlapiper.com -- Dla Piper LLP & Travis R. Wall --
twall@mail.hinshawlaw.com -- Hinshaw & Culbertson LLP.
Applied Risk Services, Inc., Defendant, represented by Spencer Y.
Kook -- skook@mail.hinshawlaw.com -- Hinshaw & Culbertson LLP., et
al.
AUSTRALIA: Yarloop Residents Mull Bushfire Class Action
-------------------------------------------------------
Heather McNeill, writing for WAtoday, reports that residents of
fire-ravaged Yarloop could launch a class action against the state
government after a damning report exposing its failures to protect
the town.
An independent report released on June 23 into the January blaze,
which claimed two lives and destroyed 69,000 hectares and 181
buildings, found emergency services were delayed in dispatching
fire fighting resources to the small South-West town and failed to
provide timely warnings to residents.
Slater and Gordon lawyer Rachel Cosentino said the report's
findings raised legal questions that were worth investigating.
The legal firm has previously represented residents in Margaret
River and Parkerville in class actions after catastrophic fires in
those regions in 2011 and 2014 respectively.
"The Waroona fire had a significant impact on the lives of local
residents and knowing where they stand in a legal sense will be an
important part of rebuilding their lives," Ms. Cosentino said.
"In many cases, even those who had insurance will find their
policies do not offer full coverage for their personal and
property losses.
"The firm will closely examine the findings and provide advice to
victims about their rights to compensation for their losses."
Victims of the Parkerville fires, which were ignited by a fallen
power pole and destroyed 57 homes, launched legal action in 2015
against Western Power, power pole maintenance contractor, Thiess,
and the elderly resident who owned the land where the power pole
fell.
The three parties plan to defend the action in the Supreme Court
of WA in August
Margaret River bushfire victims launched similar action in 2012
against the then Department of Environment and Conservation after
the blaze, which destroyed 39 homes, was found to have been
sparked by an out-of-control prescribed burn.
Slater and Gordon represented 77 people in the legal action, which
is being settled outside of court.
AUSTRALIA AND NEW ZEALAND: Bank Fees Litigation Updates
-------------------------------------------------------
Updates on the bank fees litigation involving Australia and New
Zealand Banking Group Limited were provided in an exhibit to a
Form 8-K report filed by Macquarie Leasing Pty Limited with the
U.S. Securities and Exchange Commission on May 13, 2016.
The exhibit disclosed consolidated financial statements of ANZ
(ABN 11 005 357 522) and its subsidiaries as of March 31, 2016 and
for the half-year ended March 31, 2016 (the "Half-Year Financial
Statements").
According to the exhibit, litigation funder IMF Bentham Limited
commenced a class action against ANZ in 2010, followed by a second
similar class action in March 2013. Together the class actions
are claimed to be on behalf of more than 40,000 ANZ customers. The
customers currently involved in these class actions are only part
of ANZ's customer base for credit cards and transaction accounts.
The applicants contended that the relevant exception fees (honour,
dishonour and non-payment fees on transaction accounts and late
payment and overlimit fees on credit cards) were unenforceable
penalties (at law and in equity) and that various of the fees were
also unenforceable under statutory provisions governing
unconscionable conduct, unfair contract terms and unjust
transactions.
In April 2015, the Full Federal Court delivered judgment in
respect of appeals by both parties in the second class action. The
Full Federal Court found in ANZ's favour in respect of all fees
subject to appeal (in relation to both the penalty and statutory
claims).
IMF Bentham Limited appealed the Full Federal Court's decision to
the High Court of Australia in respect of credit card late payment
fees. It did not appeal the findings in relation to the other
fees.
The High Court appeal on late payment fees was heard on 4 and 5
February 2016. We are waiting for the Court's decision.
The first class action is on hold.
In August 2014, IMF Bentham Limited commenced a separate class
action against ANZ for late payment fees charged to ANZ customers
in respect of commercial credit cards and other ANZ products (at
this stage not specified). The action is expressed to apply to all
relevant customers, rather than being limited to those who have
signed up with IMF Bentham Limited. The action is at an early
stage and has been put on hold.
In June 2013, litigation funder Litigation Lending Services (NZ)
commenced a representative action against ANZ for certain fees
charged to New Zealand customers since 2007. This action is
currently on hold.
There is a risk that further claims could emerge in Australia, New
Zealand or elsewhere.
AXA EQUITABLE: Shuster Appeals Dismissal of N.J. Suit
-----------------------------------------------------
AXA Equitable Life Insurance Company said in its Form 10-Q Report
filed with the Securities and Exchange Commission on May 13, 2016,
for the quarterly period ended March 31, 2016, that Arlene Shuster
has filed a notice of appeal from the dismissal of her class
action complaint.
A lawsuit was filed in the Supreme Court of the State of New York,
County of Westchester, Commercial Division ("New York state
court") in June 2014, entitled Jessica Zweiman, Executrix of the
Estate of Anne Zweiman, on behalf of herself and all others
similarly situated v. AXA Equitable Life Insurance Company. The
lawsuit is a putative class action on behalf of "all persons who
purchased variable annuities from AXA Equitable which subsequently
became subject to the ATM Strategy, and who suffered injury as a
result thereof." Plaintiff asserts that AXA Equitable breached the
variable annuity contracts by implementing the volatility
management tool. The lawsuit seeks unspecified damages. In July
2014, AXA Equitable filed a notice of removal to the United States
District Court for the Southern District of New York. In September
2015, the New York federal district court granted AXA Equitable's
motion to dismiss the Complaint. In October 2015, plaintiff filed
a notice of appeal. In February 2016, plaintiff voluntarily
dismissed her appeal.
In November 2014, one of the plaintiff's law firms in Zweiman
filed a separate lawsuit entitled Arlene Shuster, on behalf of
herself and all others similarly situated v. AXA Equitable Life
Insurance Company in the Superior Court of New Jersey, Camden
County ("New Jersey state court"). This lawsuit is a putative
class action on behalf of "all AXA [Equitable] variable life
insurance policyholders who allocated funds from their Policy
Accounts to investments in AXA's Separate Accounts, which were
subsequently subjected to volatility-management strategy, and who
suffered injury as a result thereof" and asserts a claim for
breach of contract similar to the claim in Zweiman. In February
2016, the New Jersey State Court dismissed the Complaint. In April
2016, plaintiff filed a notice of appeal.
BAKERY AND CONFECTIONARY: Settlement Approval Bid Due Aug. 4
------------------------------------------------------------
In the case, JUAN M. REYES, et al., individually and as
representatives on behalf of a class of similarly situated
persons, Plaintiffs, v. BAKERY AND CONFECTIONERY UNION AND
INDUSTRY INTERNATIONAL PENSION FUND, et al., in their official
capacities as Trustees, Defendants, Case No. 3:14-cv-5596 (JST),
(N.D. Cal.), Judge Jon S. Tigar ruled that plaintiff's deadline to
file a motion for preliminary approval of a settlement agreement
is August 4, 2016. Parties' joint stipulation to stay all pretrial
and trial deadlines are stayed pending further order of the court.
A copy of the stipulation among the parties, dated June 7, 2016 is
available at http://goo.gl/UTkx46from Leagle.com.
Bakery and Confectionery Union and Industry International Pension
Fund, et al., Defendants, represented by Concepcion E. Lozano-
Batista -- clozano@unioncounsel.net -- Weinberg Roger &
Rosenfeld, Emily P. Rich -- erich@unioncounsel.net -- Weinberg
Roger & Rosenfeld, James Graham Lake -- glake@bredhoff.com --
Bredhoff & Kaiser PLLC, pro hac vice, Julia Penny Clark --
jpclark@bredhoff.com -- Bredhoff & Kaiser, PLLC, pro hac vice &
Robert W Alexander -- ralexander@bredhoff.com -- Bredhoff &
Kaiser, PLLC, pro hac vice.
BALTIMORE, MD: Gray "Rough Ride" Case v. Officers Dismissed
-----------------------------------------------------------
Doug Donovan, writing for The Baltimore Sun, reports that the
criminal cases against Baltimore police officers in Freddie Gray's
death have drawn widespread attention to so-called "rough rides,"
making what had been a little-known practice part of the American
lexicon.
But proving a rough ride in court is difficult, according to
policing and legal experts.
In the case against Officer Caesar Goodson Jr., the police driver
who transported Mr. Gray, Circuit Judge Barry G. Williams
dismissed the "centerpiece" accusation of the prosecution -- that
Officer Goodson was criminally responsible for Gray's fatal
injuries because he drove in a way that tossed a cuffed and
shackled Gray around the van.
"The term 'rough ride' is an inflammatory term of art first
requiring definition and then observable evidence that it
occurred," Judge Williams said on June 23. "The court finds that
there is insufficient evidence that the defendant gave or intended
to give Mr. Gray a 'rough ride.'"
Officer Goodson, 46, was acquitted of all criminal charges in
Mr. Gray's death. Mr. Gray, a 25-year-old black man, suffered a
severe spinal cord injury in police custody in April 2015 and died
a week later.
Police are rarely charged with crimes when suspects die or are
injured in their custody.
Civil cases alleging negligence, which require a lower burden of
proof, are more common. Several people or their survivors have
won civil lawsuits alleging that they or their relatives were
paralyzed or seriously injured after emerging from police
transport vans.
Rough rides are an unsanctioned technique in which police vans are
driven erratically to cause injury or pain to unbuckled detainees.
In October, the city paid $95,000 to settle a federal lawsuit
filed by Christine Abbott, a Johns Hopkins University librarian,
who alleged that she was subjected to a rough ride in 2012.
Ms. Abbott said police did not buckle her in before "maniacally"
driving around after her arrest at a Hampden party on charges that
were later dropped.
At least five others or their relatives have alleged harm in the
back of police vans since 1997, with several winning judgments or
settling with police, The Baltimore Sun found in a review of court
records. Three were paralyzed by the ride.
One of the most sensational cases involved Dondi Johnson Sr., a
43-year-old plumber arrested in 2005 for public urination. He was
handcuffed and placed in a transport van in good health. He
emerged a quadriplegic. A jury agreed that a violent ride in a
police van caused his fractured neck and awarded his family $7.4
million, later reduced to $219,000 because of state caps on such
payouts.
Stephen P. Norman, the attorney who represented Ms. Abbott, said
it is harder to prove criminal intent than to prove that an
officer's action violated an individual's civil rights in a civil
case. Without clear and convincing evidence, it is nearly
impossible, Mr. Norman said.
"How do you prove it? You have to have videos," he said.
Last year after Mr. Gray's death, Mr. Norman established a
"Baltimore city rough ride class action" phone line and website to
search for other complaints of such actions. He said two people
have come forward but their cases do not fall within the three-
year statute of limitations.
Mr. Norman said Officer Goodson and the other officers should not
have been charged criminally without evidence of criminal intent,
but that their actions should be reviewed closely by the Police
Department to determine any appropriate discipline.
"If they make a mistake, they shouldn't be prosecuted,"
Mr. Norman said. "If you have clear evidence of them giving them
a rough ride, that's different."
Judge Williams said that while Officer Goodson's failure to secure
Mr. Gray with a seat belt "may have been a mistake, or may have
been a bad judgment," it did not amount to a crime.
"Seemingly, the state wants this court to simply assume that
because Mr. Gray was injured, and the defendant failed to seat
belt him in after Stop 2, allegedly ran a stop sign, and made a
wide right turn, that [Goodson] intentionally gave Mr. Gray a
rough ride," Judge Williams said. "As the trier of fact, the
court cannot simply let things speak for themselves."
Prosecutors could have done more to try to prove that Officer
Goodson subjected Mr. Gray to a rough ride, said Douglas Colbert,
a professor of law at the University of Maryland Francis King
Carey School of Law.
He said Officer Goodson should have been aware that his failure to
secure Mr. Gray in a seat belt could have resulted in serious
injuries given past civil settlements, directives from commanders
and training on protecting prisoners. But prosecutors failed to
present testimony that Officer Goodson knew how easy it would be
to hurt a detainee in the back of a van, he said.
"It doesn't take very much for a person who is in cuffs and
shackled and has no means to protect himself to lose balance if
he's standing or to get pushed into a metal wall that's only
inches away," Mr. Colbert said. "A rough ride can be as limited
as taking a turn more sharply or simply not driving with the
utmost care."
Former city police officer Charles Key, who is now a consultant
and has testified in two previous rough-ride lawsuits in
Baltimore, said police have given detainees rough rides, but the
practice is rare.
He praised Judge Williams for sticking to the evidence in
dismissing the prosecution's allegation.
"I'm sure there have been others," Officer Key said. "Long story
short, it's damn near impossible to prove."
BANG VENTURES: "Bailey" Suit to Recover Overtime Pay, Tips
----------------------------------------------------------
Monic Bailey, on behalf of herself and all others similarly
situated, Plaintiff, v. Bang Ventures Inc., a Florida Corporation,
Defendant, Case No. 8:16-cv-01497 (M.D. Fla., June 10, 2016),
seeks compensation for unpaid minimum wage and overtime owed,
misappropriated tips, misappropriated funds that were labeled as
fees or otherwise, liquidated damages, reasonable attorney fees,
costs and expenses and such other relief under the Fair Labor
Standards Act.
Bang Ventures Inc., misclassified its employees as contractors,
thus denying them the applicable minimum wage and overtime rates.
Plaintiff is a former exotic dancer.
The Plaintiff is represented by:
Chad E. Levy, Esq.
LEVY & LEVY, P.A.
915 Middle River Drive, Suite 518
Fort Lauderdale, FL 33304
Telephone: 954-763-5722
Facsimile: 954-763-5723
Email: chad@levylevylaw.com
BROOKFIELD DTLA: BPO Seeks Reimbursement of Attorneys' Fees
-----------------------------------------------------------
Brookfield DTLA Fund Office Trust Investor Inc. said in its Form
10-Q Report filed with the Securities and Exchange Commission on
May 13, 2016, for the quarterly period ended March 31, 2016, that
Brookfield Office Properties Inc. ("BPO") is seeking reimbursement
for 50% of the attorneys' fees and expenses awarded to the
plaintiffs from insurers of MPG Office Trust, Inc. and MPG Office,
L.P.
Following the announcement of the execution of the Agreement and
Plan of Merger dated as of April 24, 2013, as amended (the "Merger
Agreement"), seven putative class actions were filed against
Brookfield Office Properties Inc. ("BPO"), Brookfield DTLA,
Brookfield DTLA Holdings LLC, Brookfield DTLA Fund Office Trust
Inc., Brookfield DTLA Fund Properties (collectively, the
"Brookfield Parties"), MPG Office Trust, Inc., MPG Office, L.P.,
and the members of MPG Office Trust, Inc.'s board of directors.
Five of these lawsuits were filed on behalf of MPG Office Trust,
Inc.'s common stockholders: (i) two lawsuits, captioned Coyne v.
MPG Office Trust, Inc., et al., No. BC507342 (the "Coyne Action"),
and Masih v. MPG Office Trust, Inc., et al., No. BC507962 (the
"Masih Action"), were filed in the Superior Court of the State of
California in Los Angeles County (the "California State Court") on
April 29, 2013 and May 3, 2013, respectively; and (ii) three
lawsuits, captioned Kim v. MPG Office Trust, Inc. et al., No. 24-
C-13-002600 (the "Kim Action"), Perkins v. MPG Office Trust, Inc.,
et al., No. 24-C-13-002778 (the "Perkins Action") and Dell'Osso v.
MPG Office Trust, Inc., et al., No. 24-C-13-003283 (the "Dell'Osso
Action") were filed in the Circuit Court for Baltimore City,
Maryland on May 1, 2013, May 8, 2013 and May 22, 2013,
respectively (collectively, the "Common Stock Actions"). Two
lawsuits, captioned Cohen v. MPG Office Trust, Inc. et al., No.
24-C-13-004097 (the "Cohen Action") and Donlan v. Weinstein, et
al., No. 24-C-13-004293 (the "Donlan Action"), were filed on
behalf of MPG Office Trust, Inc.'s preferred stockholders in the
Circuit Court for Baltimore City, Maryland on June 20, 2013 and
July 2, 2013, respectively (collectively, the "Preferred Stock
Actions").
In each of the Common Stock Actions, the plaintiffs allege, among
other things, that MPG Office Trust, Inc.'s board of directors
breached their fiduciary duties in connection with the merger by
failing to maximize the value of MPG Office Trust, Inc. and
ignoring or failing to protect against conflicts of interest, and
that the relevant Brookfield Parties named as defendants aided and
abetted those breaches of fiduciary duty. The Kim Action further
alleges that MPG Office, L.P. also aided and abetted the breaches
of fiduciary duty by MPG Office Trust, Inc.'s board of directors,
and the Dell'Osso Action further alleges that MPG Office Trust,
Inc. and MPG Office, L.P. aided and abetted the breaches of
fiduciary duty by MPG Office Trust, Inc.'s board of directors. On
June 4, 2013, the Kim and Perkins plaintiffs filed identical,
amended complaints in the Circuit Court for Baltimore City,
Maryland.
On June 5, 2013, the Masih plaintiffs also filed an amended
complaint in the Superior Court of the State of California in Los
Angeles County. The three amended complaints, as well as the
Dell'Osso Action complaint, allege that the preliminary proxy
statement filed by MPG Office Trust, Inc. with the SEC on May 21,
2013 is false and/or misleading because it fails to include
certain details of the process leading up to the merger and fails
to provide adequate information concerning MPG Office Trust,
Inc.'s financial advisors.
In each of the Preferred Stock Actions, which were brought on
behalf of MPG Office Trust, Inc.'s preferred stockholders, the
plaintiffs allege, among other things, that, by entering into the
Merger Agreement and tender offer, MPG Office Trust, Inc. breached
the Articles Supplementary, which governs the issuance of the MPG
preferred shares, that MPG Office Trust, Inc.'s board of directors
breached their fiduciary duties by agreeing to a merger agreement
that violated the preferred stockholders' contractual rights and
that the relevant Brookfield Parties named as defendants aided and
abetted those breaches of contract and fiduciary duty. On July 15,
2013, the plaintiffs in the Preferred Stock Actions filed a joint
amended complaint in the Circuit Court for Baltimore City,
Maryland that further alleged that MPG Office Trust, Inc.'s board
of directors failed to disclose material information regarding
BPO's extension of the tender offer.
The plaintiffs in the seven lawsuits sought an injunction against
the merger, rescission or rescissory damages in the event the
merger was consummated, an award of fees and costs, including
attorneys' and experts' fees, and other relief.
On July 10, 2013, solely to avoid the costs, risks and
uncertainties inherent in litigation, the Brookfield Parties and
the other named defendants in the Common Stock Actions signed a
memorandum of understanding, regarding a proposed settlement of
all claims asserted therein. The parties subsequently entered into
a stipulation of settlement dated November 21, 2013 providing for
the release of all asserted claims, additional disclosures by MPG
concerning the merger made prior to the merger's approval, and the
payment, by the defendants, of an award of attorneys' fees and
expenses in an amount not to exceed $475,000. After a hearing on
June 4, 2014, the California State Court granted plaintiffs'
motion for final approval of the settlement, and entered a Final
Order and Judgment, awarding the plaintiffs' counsel's attorneys'
fees and expenses in the amount of $475,000, which was paid by MPG
Office LLC on June 18, 2014. BPO is seeking reimbursement for the
settlement payment from MPG's insurers.
In the Preferred Stock Actions, at a hearing on July 24, 2013, the
Maryland State Court denied the plaintiffs' motion for preliminary
injunction seeking to enjoin the tender offer. The plaintiffs
filed a second amended complaint on November 22, 2013 that added
additional arguments in support of their allegations that the new
preferred shares do not have the same rights as the MPG preferred
shares. The defendants moved to dismiss the second amended
complaint on December 20, 2013, and briefing on the motion
concluded on February 28, 2014. At a hearing on June 18, 2014, the
Maryland State Court heard oral arguments on the defendants'
motion to dismiss and reserved judgment on the decision. On
October 21, 2014, the parties sent a joint letter to the Maryland
State Court stating that since the June 18 meeting, the parties
have commenced discussions towards a possible resolution of the
lawsuit, requesting that the court temporarily refrain from
deciding the pending motion to dismiss to facilitate the
discussions.
On March 30, 2015, the plaintiff in the Cohen Action and the
defendants entered into a memorandum of understanding setting
forth an agreement in principle to settle the Preferred Stock
Actions on a class-wide basis and dismiss the case with prejudice
in exchange for the payment of $2.25 per share of Series A
preferred stock of accumulated and unpaid dividends (the "Dividend
Payment") to holders of record on a record date to be set after
final approval of the settlement by the Maryland State Court, plus
any attorneys' fees awarded by the Maryland State Court to the
plaintiff's counsel. The dividend will reduce the amount of
accumulated and unpaid dividends on the Series A preferred stock,
and the terms of the Series A preferred stock will otherwise
remain unchanged.
On August 18, 2015, the Maryland State Court entered an order
preliminarily approving the settlement and scheduling a final
fairness hearing for October 27, 2015. On September 28, 2015, the
plaintiff filed a motion for final certification of the settlement
class, final approval of the class action settlement and approval
of attorneys' fees and reimbursement of expenses, seeking a total
fee and expense award of $5,250,000. The defendants submitted
their opposition to the plaintiff's fee application on October 13,
2015.
On October 16, 2015, the plaintiff filed a motion seeking
discovery related to the valuation of the Dividend Payment in
connection with its fee application and served related discovery
requests on the defendants. On October 23, 2015, the defendants
filed their opposition to that motion, as well as a motion for a
protective order precluding discovery. On October 27, 2015, the
Maryland State Court held a hearing to decide whether to grant
final approval of the settlement and to rule on the parties'
discovery motions. At the hearing, the Court ordered limited
discovery to occur prior to ruling on the fee application.
On October 28, 2015, the Maryland State Court issued an order
granting final approval of the settlement. The time to appeal the
order expired on November 30, 2015 without any appeals having been
filed. On December 4, 2015, in accordance with the final approval
order and the terms of the parties' settlement agreement, the
board of directors declared a cash dividend of $2.25 per share to
holders of record of its Series A preferred stock at the close of
business on December 15, 2015. On January 4, 2016, Brookfield DTLA
paid the Dividend Payment totaling $21.9 million using cash on
hand.
On December 16, 2015, after taking certain limited discovery
permitted by the Maryland State Court during the October 27
hearing, the plaintiff served the defendants with its reply
memorandum of law in support of its motion for attorneys' fees and
expenses. That same day, the plaintiff requested that the Court
permit it to file the reply memorandum and an exhibit thereto
under seal given the confidential nature of the information
contained therein. On December 17, 2015, the plaintiff provided
the Court with plaintiff's counsel's time records for the Court's
in camera review. On January 15, 2016, the defendants filed a
surreply to the plaintiff's reply memorandum after obtaining the
Court's permission to do so.
After a hearing on April 6, 2016, the Maryland State Court issued
an order on April 18, 2016 granting an award of attorneys' fees
and expenses to the plaintiffs totaling $2,212,688. On April 21,
2016, the Company paid the awarded amount to the plaintiffs'
counsel. BPO is seeking reimbursement for 50% of the attorneys'
fees and expenses awarded to the plaintiffs from MPG's insurers.
Brookfield DTLA Fund Office Trust Investor Inc. ("Brookfield DTLA"
or the "Company") is a Maryland corporation and was incorporated
on April 19, 2013. Brookfield DTLA was formed for the purpose of
consummating the transactions contemplated in the Agreement and
Plan of Merger dated as of April 24, 2013, as amended (the "Merger
Agreement"), and the issuance of shares of 7.625% Series A
Cumulative Redeemable Preferred Stock (the "Series A preferred
stock") in connection with the acquisition of MPG Office Trust,
Inc. and MPG Office, L.P. (together, "MPG"). Brookfield DTLA is a
direct subsidiary of Brookfield DTLA Holdings LLC ("Brookfield
DTLA Holdings"), a Delaware limited liability company, and an
indirect subsidiary of Brookfield Office Properties Inc. ("BPO").
Brookfield DTLA owns BOA Plaza, EY Plaza, Wells Fargo Center-North
Tower, Wells Fargo Center-South Tower, Gas Company Tower and 777
Tower, each of which are Class A office properties located in the
Los Angeles Central Business District (the "LACBD").
CAFE ANGELIQUE: "Cantor" Suit to Recover Overtime Pay
-----------------------------------------------------
Francisco Cantor and Rogelio Leal Palacios, individually and on
behalf of others similarly situated, Plaintiffs, v. Cafe
Angelique, Inc. and Isaac Ben-Avraham Defendants, Case No. 1:16-
cv-04366 (S.D.N.Y., June 10, 2016) seeks to recover unpaid minimum
and overtime wages and damages for any improper deductions or
credits taken against wages under the Fair Labor Standards Act.
Defendants own, operate, or control a cafe located at 68 Bleecker
Street, New York, NY 10012 under the name "Cafe Angelique," where
Plaintiffs were employed as delivery worker and cook respectively.
The Plaintiff is represented by:
Michael Faillace, Esq.
MICHAEL FAILLACE & ASSOCIATES, P.C.
60 East 42nd Street, Suite 2540
New York, NY 10165
Telephone: (212) 317-1200
Facsimile: (212) 317-1620
Email: Faillace@employmentcompliance.com
CALIFORNIA: Boyd Succeeds in Bid to Reduce Defendants' Cost
-----------------------------------------------------------
In the case, MARTHA BERNDT, et al., Plaintiffs, v. CALIFORNIA
DEPARTMENT OF CORRECTIONS, et al., Defendants, Case No. 03-cv-
03174-NJV. (N.D. Cal.), judgment was entered on March 14, 2016, in
favor of Defendants against Plaintiff Lisa Boyd. On March 28,
2016, Defendants filed a Bill of Costs seeking costs of
$12,491.17. Boyd objected and on April 29, 2016, the Clerk
reduced the recoverable costs to $10,204.80. Plaintiff Boyd now
petitions the court to disallow certain costs as unrecoverable
under the law.
In a June 28, 2016 Order available at http://goo.gl/v7eGiofrom
Leagle.com, Magistrate Judge Nandor J. Vadas granted Plaintiff's
Motion and awarded the Defendants costs against Boyd in the amount
of $7,595.84.
The case was filed as a putative class action in 2003. Boyd
joined the case on January 31, 2011, with the filing of the Fifth
Amended Complaint. The Plaintiffs' Motion for Class Certification
was denied by Judge Hamilton on March 20, 2012, and the case
proceeded with the 10 named Plaintiffs. The case was then trimmed
to seven Plaintiffs after three, including Boyd, were dismissed
for failing to exhaust remedies.
The case proceeded with a settlement agreement containing an
identical provision ensuring that none of the defendants' costs
attributable to the settling party could be charged to a non-
settling party. A bill of costs seeking recovery from the non-
settling plaintiff may be allowed if defendants provide proof to
the non-settling plaintiffs' counsel that they have excluded costs
attributable to each settling plaintiff; that is, requiring the
deduction from the gross amount of the defense costs, the costs
attributable to the settling plaintiffs.
The court ruled that defendants ignored the settlement agreement
as regards recovering costs against Boyd, a non-settling
plaintiff.
California Department of Corrections, et al., Defendants,
represented by Lyn Harlan -- Lyn.Harlan@doj.ca.gov -- Attorney
General's Office & Christopher Michael Young --
chris.young@doj.ca.gov -- Office of the Attorney General.
CALIFORNIA BUSINESS BUREAU: "Ortega" Lawsuit Dismissed
------------------------------------------------------
The case, ALEX ORTEGA and SIOBHAN SHANAHAN, on behalf of
themselves and all others similarly situated, Plaintiffs, v.
CALIFORNIA BUSINESS BUREAU, INC., Defendant, Case No. 1:15-CV-
01082-LJO-MJS (E.D. Cal.), is dismissed pursuant to the parties'
stipulation of dismissal approved by Chief District Judge Lawrence
J. O'Neill.
Case dismissal is with prejudice as to plaintiffs' individual
action, and without prejudice as to the class action claims
asserted in the lawsuit. Each party shall bear its own costs and
expenses.
A copy of the court's order dated June 23, 2016 is available at
http://goo.gl/qr13Ntfrom Leagle.com.
Siobhan Shanahan, et al., Plaintiffs, represented by Adrian R.
Bacon -- abacon@attorneysforconsumers.com -- Law Offices Of Todd
M. Friedman, P.C. & Todd M. Friedman --
tfriedman@attorneysforconsumers.com -- Law Offices of Todd M.
Friedman, P.C..
California Business Bureau, Inc., Defendant, represented by David
Jay Kaminski -- KaminskiD@cmtlaw.com -- Carlson & Messer, LLP. &
Martin Schannong -- schannom@cmtlaw.com -- Carlson & Messer, LLP.
CENLAR FSB: Law Firm Investigates Potential Class Action Claims
---------------------------------------------------------------
Kirby McInerney LLP, a class action litigation firm is
investigating potential class action claims against Cenlar FSB, a
leading mortgage servicer, in connection with a suspected scheme
to overcharge homeowners for force-placed insurance.
Mortgages require borrowers to maintain insurance to protect the
lender's interests in the secured property. If the borrower's
insurance lapses, the mortgage servicer is entitled to purchase
its own insurance -- called force-placed insurance -- and bill the
borrower for reimbursement.
Kirby McInerney is investigating Cenlar's suspected receipt of
secret rebates or kickbacks from its force-placed insurance
carrier, Assurant Specialty Property, while improperly billing
borrowers based on the full price of the insurance. In March
2013, the New York State Department of Financial Services found
that Assurant had a practice of giving mortgage servicers improper
compensation disguised as "commissions," reimbursements for
"qualified expenses," and reinsurance fees.
Assurant Specialty Property is a subsidiary of Assurant Inc., a
public company with $30 billion in assets.
Cenlar frequently does business under the name of Central Loan
Administration & Reporting.
If you are homeowner or mortgage loan borrower who has been
charged for force-placed insurance by Cenlar or any other loan
servicer, or if you wish to discuss these matters or have any
questions concerning this announcement or your rights, you may
contact Kirby McInerney partner Mark A. Strauss by email at
mstrauss@kmllp.com or by telephone at (212) 371-6600 or toll free
at (888) 529-4787. There is no cost or obligation to you.
About Kirby McInerney LLP
Kirby McInerney LLP -- http://www.kmllp.com-- is a New York-based
law firm representing plaintiffs in securities, whistleblower,
antitrust, and consumer litigation. The firm is committed to the
aggressive pursuit of justice and to championing the rights of
clients through class action lawsuits, arbitrations, and
individual lawsuits. The firm has been profiled by Law360.com as
one of the "Most Feared Plaintiffs' Firms," and named to The
National Law Journal's Plaintiffs' Hot List.
CEVA LOGISTICS: Settlement in "Aquino" Case Has Final Approval
--------------------------------------------------------------
In the case, SERGIO AQUINO, an individual, on behalf of himself
and all others similarly situated, Plaintiff, v. CEVA LOGISTICS
U.S. INC., a Delaware corporation, et al., Defendants, No. 5:14-
cv-01795-VAP-(DTBx), (C.D. Cal.), District Judge Virginia A.
Phillips granted final approval of the parties' Class Action
Settlement and the plaintiff's Motion for Attorneys' Fees and
Costs.
For purposes of the Settlement and the Final Approval Order and
Judgment, the Settlement Class shall consist of all current and
former non-exempt employees employed by Defendants at CEVA's Mira
Loma Fulfillment Center in the State of California from July 15,
2010 through September 30, 2013, and includes persons paid through
third-party staffing agencies. The Settlement Class fall into
these two Sub-Classes:
(1) CEVA Sub-Class Members means all current and former
non-exempt employees directly employed by Defendants at
CEVA's Mira Loma Fulfillment Center in the State of
California from July 15, 2010 through September 30,
2013.
(2) Temp Sub-Class Members means all current and former
non-exempt employees placed by and paid through
third-party staffing agencies and placed at CEVA's Mira
Loma Fulfillment Center in the State of California from
July 15, 2010 through September 30, 2013.
The Settlement Agreement provides that, within 30 business days
after the Effective Date (which is 30 days after the entry of
Order granting Final Approval as no objections were filed), the
Defendants will deposit $350,000 into the Qualified Settlement
Account.
Class Counsel is awarded $87,500 for attorney's fees, and
$24,089.90 for reimbursement of litigation costs and expenses.
Plaintiff's Incentive Award in the amount of $1,500 is granted.
Payment for class administration services to Class Action
Administration, LLC, in the amount of $33,500, representing
Settlement Administration Expenses, is granted.
A copy of the court's Final Approval Order and Judgment dated June
23, 2016, is available at http://goo.gl/UIUKs9from Leagle.com.
Sergio Aquino, Plaintiff, represented by Christopher J. Hamner --
chamner@hamnerlaw.com -- Hamner Law Offices APC & Amy Tai Wootton
-- amywootton1@gmail.com -- Hamner Law Offices APC.
CEVA Logistics U.S., Inc., et al., Defendants, represented by
Demery Ryan -- dryan@littler.com -- Littler Mendelson PC, Cara R.
Sherman -- csherman@ongaropc.com -- Littler Mendelson PC & Carlos
Jimenez -- cajimenez@littler.com -- Littler Mendelson PC.
CLIMAX PACKAGING: Faces Class Action Following Closure
------------------------------------------------------
WWNY TV 7 reports that after investigating the closing of Climax
Packaging in Lowville, the state Labor Department is suing the
company.
That's according to the United Steelworkers Union.
"They agreed with us. The Steelworkers filed the charges that the
company did not compensate people properly for their vacation and
holiday pay, both what's called earned and accrued," said union
representative Jim Ridgeway.
The union says the labor department's wage and hour division will
represent the former employees in a class action lawsuit against
Climax.
This comes days after the equipment inside Climax was shipped away
and sold in online auctions.
Some of the 158 laid-off workers joined the class action suit
after meeting with representatives from the labor department in
Lowville.
"They go after the company. If the company claims there's no
money, then they look for adjoining companies. Sometimes, there's
personal liability of officers that comes into it. So it all gets
real right now," said Mr. Ridgeway.
A notice of the suit was given to the company.
The amount of money in the lawsuit hasn't been disclosed yet, but
Mr. Ridgeway says it could include more than missing vacation and
holiday pay.
"Their initial finding is to assess penalties on top of that, that
appear to be 100 percent of what the money was," said
Mr. Ridgeway.
The company has 20 days to respond to the notice.
Mr. Ridgeway says he expects to hear that response.
COCULA RESTAURANT: Faces "De Alba" Suit Under FLSA, Ill. Wage Law
-----------------------------------------------------------------
EFRAIN ALBERTO DE ALBA, on behalf of himself and others similarly
situated, Plaintiff, v. COCULA RESTAURANT, INC. and ROMUALDO
CAMARENA, individually, Defendants, Case: 1:16-cv-06506 (N.D.
Ill., June 22, 2016), was filed under the Fair Labor Standards Act
and the Illinois Minimum Wage Law.
Defendant Cocula Restaurant, Inc. operates "Restaurante Cocula" in
six locations.
The Plaintiff is represented by:
Carlos G. Becerra, Esq.
BECERRA LAW GROUP, LLC
11 E. Adams St., Suite 1401
Chicago, IL 60604
Phone: (312)753-6967
Fax: (888)826-5848
E-mail: cbecerra@law-rb.com
CR BARD: Faces Class Action in Arizona Over Blood Clot Filter
-------------------------------------------------------------
Daily Hornet reports that a class action lawsuit has been filed on
behalf of everyone who was implanted with a blood clot filter made
by C.R. Bard.
On June 21, U.S. District Judge David G. Campbell transferred the
class action into one federal court in Arizona where over 600
individual lawsuits have already been filed by people with serious
injuries.
Tens of thousands of people have been implanted with "temporary"
blood clot filters. The FDA recommends removing them within 29-54
days, but only a small percentage are ever removed.
Many people are walking around with a fractured filter or a
perforated vena cava and have no idea. They may not have any
symptoms until the filter suddenly causes irregular heart rhythm
or cardiac arrest.
The class action is seeking "appropriate diagnostic services" to
help these people determine the condition and position of the
filter. This information is necessary to determine the safest
course of medical action to deal with a flawed device.
Lawyers say the wire legs of the filters (called "struts") are
prone to breaking. This can allow needle-like pieces to travel in
the bloodstream and become lodged in a vein, artery, or vital
organ like the heart or lungs. According to the complaint:
"The filters also tend to break loose from the point of
implantation and to migrate to other locations . . . The filters
further have a significant chance of tilting within the IVC,
perforating the vena cava and/or causing the formation of blood
clots."
The lawsuit accuses C.R. Bard of selling defective devices and
failing to provide adequate warnings about safety, effectiveness,
and failure rates.
The class action is Barraza et al. v. C.R. Bard in the U.S.
District Court for the District of Arizona (Case No. 2:16-cv-
01374).
CVS HEALTH: "Bordenet" Sues Over False Advertising
--------------------------------------------------
Patricia Bordenet, individually and on behalf of all others
similarly situated, Plaintiff, v. CVS Health Corporation,
Defendant, Case No. 1:16-cv-06103 (N.D. Ill., June 10, 2016),
seeks actual and statutory damages, attorney fees and litigation
costs, pre- and post-judgment interest on any amounts awarded and
such other and further relief for breach of express/implied
warranty, enrichment and violation of the Illinois Consumer
Fraud and Deceptive Business Practices Act.
CVS Health Corporation is a Delaware corporation, with principal
place of business at One CVS Drive, Woonsocket, Rhode Island
02895. Defendant operated 9,674 retail locations in 49 states and
the District of Columbia, including in-store Target pharmacies.
CVS Health advertises, markets, sells and distributes Aftersun
Aloe Vera Moisturizing Gel and claims that is contains 100% pure
aloe vera gel. Plaintiff alleges that it does not contains aloe
vera at all and missed out printing propylene glycol on its
product label as a component ingredient.
Plaintiff was represented by:
Brian J. Wanca, Esq.
Brian J. Wanca, Esq.
Jeffrey A. Berman, Esq.
ANDERSON + WANCA
3701 Algonquin Road, Suite 500
Rolling Meadows, IL 60008
Tel: (847) 368-1500
Email: bwanca@andersonwanca.com
jberman@andersonwanca.com
- and -
Jason Thompson, Esq.
Lance Young, Esq.
SOMMERS SCHWARTZ, P.C.
One Towne Square, 17th Floor
Southfield, MI 48076
Tel: (248) 355-0300
Email: jthompson@sommerspc.com
lyoung@sommerspc.com
- and -
Nick Suciu III, Esq.
BARBAT, MANSOUR & SUCIU PLLC
1644 Bracken Rd.
Bloomfield Hills, MI 48302
Tel: (313) 303-3472
Email: nicksuciu@bmslawyers.com
- and -
Jonathan N. Shub, Esq.
KOHN, SWIFT & GRAF, P.C.
One South Broad Street, Suite 2100
Philadelphia, PA 19107
Tel: (215) 238-1700
Email: jshub@kohnswift.com
- and -
Donald J. Enright, Esq.
Lori G. Feldman, Esq.
LEVI & KORSINSKY LLP
1101 30th Street, N.W., Suite 115
Washington, DC 20007
Tel: (202) 524-4290
Email: denright@zlk.com
lfeldman@zlk.com
- and -
Jason T. Brown, Esq.
Patrick S. Almonrode, Esq.
JTB LAW GROUP
155 2nd Street, Suite 4
Jersey City, NJ 07302
Tel: (877) 561-0000
Email: jtb@jtblawgroup.com
Email: patalmonrode@jtblawgroup.com
DISTRICT OF COLUMBIA: Court Narrows Claims in "Lewis"
-----------------------------------------------------
In the case captioned KAYLA DIONNE LEWIS, et al., Plaintiffs, v.
GOVERNMENT OF THE DISTRICT OF COLUMBIA, Defendant, Civil Action
No. 15-352 (RBW) (DC), Judge Reggie B. Walton granted in part and
denied, in part, the defendant's motion to dismiss all of the
plaintiffs' claims.
Judge Walton dismissed claims I, II, and III of the complaint with
respect to plaintiff Felton Hill, but not with respect to
plaintiff Kayla Dionne Lewis. The judge also dismissed claim IV
with respect to both plaintiffs, but claim V survived the
defendant's motion with respect to both plaintiffs.
A full-text copy of Judge Walton's June 27, 2016 memorandum
opinion is available at https://is.gd/fm1OtF from Leagle.com.
Lewis and Hill, the named plaintiffs in the civil suit, brought
the putative class action against the defendant, the District of
Columbia, pursuant to 42 U.S.C. section 1983 (2012), alleging
constitutional violations arising from their arrests and
subsequent detentions by the District in 2014.
KAYLA DIONNE LEWIS, Plaintiff, represented by Lynn E. Cunningham -
- lcunningham@law.gwu.edu -- LAW OFFICES OF LYNN E. CUNNINGHAM,
Michael P. Bruckheim -- bruckhei@american.edu -- LAW OFFICE OF
MICHAEL BRUCKHEIM, LLC & William Charles Cole Claiborne, III, LAW
OFFICES OF WILLIAM CLAIBORNE III.
FELTON HILL, Plaintiff, represented by William Charles Cole
Claiborne, III, LAW OFFICES OF WILLIAM CLAIBORNE III.
GOVERNMENT OF THE DISTRICT OF COLUMBIA, Defendant, represented by
Douglas Stuart Rosenbloom, OFFICE OF THE ATTORNEY GENERAL FOR THE
DISTRICT OF COLUMBIA & Fernando Amarillas, OFFICE OF THE ATTORNEY
GENERAL FOR THE DISTRICT OF COLUMBIA.
DONATOS PIZZERIA: Faces "Hassan" Lawsuit Seeking to Recover Wages
-----------------------------------------------------------------
HAMDI HASSAN, on behalf of himself and those similarly situated,
Plaintiff, v. DONATOS PIZZERIA, LLC, JANE GROTE ABELL, and THOMAS
KROUSE, Defendants, Case: 2:16-cv-00581-ALM-KAJ (S.D. Ohio, June
22, 2016), seeks to recover alleged unpaid minimum wages, unpaid
overtime, and unreimbursed expenses, in an amount to be determined
at trial, on behalf of Plaintiff and similarly situated delivery
drivers who worked at one of the more than 150 Donatos Pizzeria
restaurants.
Donatos Pizzeria is a family-owned pizza company with more than
150 locations in Ohio, Indiana, Kentucky, Alabama, Virginia, and
Tennessee.
The Plaintiffs are represented by:
Robert J. Beggs, Esq.
BEGGS LAW OFFICES CO., LPA
1675 Old Henderson Road
Columbus, OH 43220
Phone: 614-678-5640
Fax: 614-448-9408
E-mail: John.Beggs@BeggsLawOffices.com
- and -
Andrew Kimble, Esq
KIMBLE LAW OFFICE
1675 Old Henderson Road
Columbus, OH 43220
E-mail: Andrew@kimblelawoffice.com
Tel: 937-286-6428
Fax: 614-448-9408
ELECTRONIC ARTS: Jim Brown Agrees to Accept Voluntary Judgment
--------------------------------------------------------------
Iconic running back and Hollywood actor Jim Brown has agreed to
accept a voluntary judgment offered by Electronic Arts (EA)
stemming from the use of his likeness in Madden NFL video games,
according to Hagens Berman. EA will pay $600,000 in exchange for
a dismissal and release of Mr. Brown's claims.
Mr. Brown's attorney Robert Carey praised the outcome, saying,
"This recovery marks an important victory for plaintiffs in
publicity-rights cases, and athletes in particular. Big business
should think twice before it turns players' hard-won identities
and achievements into merchandise without permission or
compensation."
Mr. Brown concurred, "I took a stand for all athletes and laid a
framework for future plaintiffs with my great legal team.
Hopefully, this is a step forward in getting companies like
Electronic Arts to recognize the value that athletes have in
selling their products."
EA's best-selling Madden NFL football game allowed users to play
as Brown's team (the 1965 Cleveland Browns) and other historic
franchises. Mr. Brown's suit alleged that EA asked to use his
likeness and that he expressly refused. EA nonetheless created an
avatar in the game that mimicked Brown's height, weight, skin
color, experience, team, position and ability level.
The payment will exceed amounts EA has reportedly paid other
athletes to appear not only in the game, but on the Madden NFL
cover.
The offer of judgment followed several major court defeats for EA.
A Los Angeles court denied EA's motion to dismiss in 2015, ruling
that the First Amendment did not entitle EA to use Brown's
likeness. EA argued that the use was merely "incidental," but the
court rejected that argument, stating "Jim Brown is not a 1 in
7,500 player . . . Mr. Brown is iconic and unique. His likeness
is not merely incidental to the game." EA appealed that ruling to
the California Court of Appeals.
While EA's appeal was pending, the U.S. Court of Appeals for the
Ninth Circuit rejected similar defenses in Davis v. Electronic
Arts, a class action filed by other retired players whose
likenesses were used in Madden NFL. EA petitioned the U.S.
Supreme Court to review that decision, and the Supreme Court
rejected EA's bid in March. Davis drew heavily from Keller v.
Electronic Arts, a 2013 decision upholding the rights of NCAA
student-athletes to challenge EA's use of their likenesses in its
video games.
EA's offer of judgment came shortly after appellate briefs were
filed in Brown's case.
"We are glad that Electronic Arts finally read the writing on the
wall," said Carey, who also represented the student-athletes in
Keller and currently represents Robin Antonick, the developer of
the original Madden NFL software. Two federal juries found for
Antonick on claims that EA failed to pay royalties for using his
Madden NFL source code, and his case is now pending before the
Ninth Circuit.
About Hagens Berman
Hagens Berman Sobol Shapiro LLP -- http://www.hbsslaw.com-- is a
consumer-rights class-action law firm with offices in 10 cities.
The firm has been named to the National Law Journal's Plaintiffs'
Hot List eight times.
ELITE WHEEL: Faces "Acosta" Lawsuit Under FLSA, Whistleblower Act
----------------------------------------------------------------
JULIO CRUZ ACOSTA, and other similarly situated individuals,
Plaintiffs, v. ELITE WHEEL DISTRIBUTORS INC., Defendant, Case
1:16-cv-22397-KMW (S.D. Fla., June 22, 2016), was brought under
the Florida Whistleblower Act and the Fair Labor Standards Act.
Elite Wheel Distributors Inc.'s line of business includes the
operation of blast furnaces and steel mills.
The Plaintiff is represented by:
R. Martin Saenz, Esq.
SAENZ & ANDERSON, PLLC
20900 NE 30th Avenue, Ste. 800
Aventura, FL 33180
Phone: (305) 503-5131
Fax: (888) 270-5549
E-mail: msaenz@saenzanderson.com
EXTREME NETWORK: ATRS Wins Lead Plaintiff Bid
---------------------------------------------
In the case, In re EXTREME NETWORKS INC. SECURITIES LITIGATION,
Master File No. 15-cv-04883-BLF (N.D. Cal.), District Judge Beth
Labson Freeman reconciled competing motions seeking appointment of
lead plaintiff status in a putative securities class action
against Extreme Networks, Inc., favoring Arkansas Teacher
Retirement System over Lakeland Employees Pension Plan. A copy of
the court's decision is available at http://goo.gl/8hQYoJfrom
Leagle.com.
Private Securities Litigation Reform Act governs the selection of
a lead plaintiff or plaintiffs in a class action litigation. PSLRA
lays out a three-step process for identifying the lead plaintiff:
(1) verification of the proper posting of a notice; (2) losses
allegedly suffered by the various plaintiffs; and (3) satisfaction
of the adequacy and typicality requirements for lead plaintiff
designation.
The Court held that ATRS satisfies all the requirements under
PSLRA where: (1) the notice was properly given; (2) that ATRS
holds the largest financial interest in the relief sought; and (3)
ATRS satisfies the typicality requirement and adequacy
requirement, respectively, when it has suffered the same injuries
as absent class members and its counsel do not have any conflicts
of interest with other class members.
The PSLRA points out a "professional plaintiff" provision which
caps the number of times a "person" may be lead plaintiff in any
three-year period to five times. ATRS represented that it had been
appointed lead plaintiff in twelve securities class actions in the
last three years. Lakeland asserted that the provision clearly
restricts person, including an institutional investor, like ATRS,
thus affecting its lead plaintiff claim.
The court, in ascertaining the intent of the Congress from a
Conference Report, explained that the "professional plaintiff"
provision was not intended to apply to institutional investors.
Under the PLSRA, the lead plaintiff is given the right, subject to
court approval, to select and retain counsel to represent the
class.
The court defers to the choice of ATRS to appoint Labaton Sucharow
LLP as lead counsel and Berman DeValerio as liaison counsel.
Extreme Networks, Inc., et al., Defendants, represented by Elliot
Schlesinger Katz -- elliot.katz@dlapiper.com -- DLA Piper LLP,
Shirli Fabbri Weiss -- shirli.weiss@dlapiper.com -- DLA Piper LLP,
David Allen Priebe -- dpriebe@graycary.com -- DLA Piper LLP &
Diana Mariko Maltzer -- diana.hall@dlapiper.com -- DLA Piper LLP.
Arkansas Teacher Retirement System, Movant, represented by Francis
P. McConville -- fmcconville@labaton.com -- Labaton Sucharow LLP,
pro hac vice, Nicole Catherine Lavallee --
nlavallee@bermandevalerio.com -- Berman DeValerio, Aidan Chowning
Poppler , Berman DeValerio -- cpoppler@bermandevalerio.com --
Christopher J. Keller , Labaton Sucharow LLP, pro hac vice, Eric
J. Belfi -- ebelfi@labaton.com -- Labaton Sucharow & Rudoff LLP,
Michael Walter Stocker , Labaton Sucharow LLP & Natalie Marie
Mackiel , Labaton Sucharow LLP, pro hac vice.
City of Lakeland Employees Pension Plan, Movant, represented by
Brian O. O'Mara -- bomara@rgrdlaw.com -- Robbins Geller Rudman &
Dowd LLP, Kenneth Joseph Black , Robbins Geller Rudman and Dowd
LLP & Shawn A. Williams -- shawnw@rgrdlaw.com -- Robbins Geller
Rudman & Dowd LLP.
FERRING PHARMACEUTICALS: Faces Class Action Over Bravelle Drug
--------------------------------------------------------------
Heidi Turner, writing for Lawyers and Settlements, reports that
Ferring Pharmaceuticals, maker of Bravelle fertility drug, faces a
class-action lawsuit alleging its drug was weaker than patients
believed. The lawsuit alleges the ineffective drug prevented
couples from becoming pregnant and drained their finances, making
it impossible to afford another round of fertility treatments.
Lawsuits have been filed in the United States and Canada by
couples who allege the recalled Bravelle affected their hopes of
having a baby.
One lawsuit was filed in New York, by a couple that claimed they
spent between $20,000 and $30,000 on in vitro fertilization (IVF),
including Bravelle injections. The New York Post reports Angela
and Daniel Lauruska filed the lawsuit after the fertility
treatments failed to work due to a decrease in potency. The
couple claims they cannot afford another round of fertility
treatments.
The plaintiffs allege Ferring did not take adequate steps to
ensure its drug was as potent as required for its intended use.
Among the claims made against Ferring Pharmaceuticals are breach
of express and implied warranties, and unjust enrichment.
According to CTV News, Amanda and Joep Olthuis filed a class-
action lawsuit in Canada against Ferring, after Amanda failed to
become pregnant after using Bravelle. The couple reportedly saved
for two years to afford the IVF treatment, which cost around
$14,000.
Bravelle (known generically as urofollitropin) is used to
stimulate a woman's ovaries to produce more eggs, and is used as
part of IVF. In October 2015, Ferring announced a recall of
certain lots of Bravelle after discovering they did not maintain
their potency as long as expected. That reduced potency could
result in women not becoming pregnant through the IVF treatment.
Ferring offered to refund the cost of the drug itself, but at
$2,500 that does not come close to touching the amount the couple
spent on the full IVF treatment, which was reportedly less likely
to work because of the decreased drug potency. Amanda and Joep
filed the lawsuit saying they would not have done the entire IVF
cycle if they had known about problems with the drug. The family
also says they should be compensated for out-of-pocket costs
linked to the failed IVF, such as travel expenses.
The US lawsuit is case number 2:16-cv-01857, in the US District
Court for the Eastern District of New York.
FARMERS GROUP: "Coates" Settlement Deal Has Initial Okay
--------------------------------------------------------
Judge Lucy H. Koh provisionally certified the settlement class and
granted preliminary approval to the proposed class action
settlement in the case captioned LYNNE COATES, et al., Plaintiffs,
v. FARMERS GROUP, INC., et al., Defendants, Case No. 15-CV-01913-
LHK (N.D. Cal.).
For settlement purposes, Judge Koh appointed Lynne Coates, Serena
Neves, Keever Rhodes Muir, Celeste Stokes, and Karen Wasson as
Class Representatives, Lori Andrus of Andrus Anderson LLP and Lori
Costanzo of Costanzo Law Firm as Class Counsel, and Rust
Consulting as the Class Administrator.
The deadline for class members to opt out or file objections to
the settlement was set to August 29, 2016. The final approval
hearing was scheduled for September 29, 2016 at 1:30 p.m.
A full-text copy of Judge Koh's June 27, 2016 order is available
at https://is.gd/LxiusS from Leagle.com.
Coates, Neves, Rhodes, Stokes, and Wasson have alleged, on behalf
of themselves and a putative class of similarly situated
individuals, that the defendants Farmers Group, Inc., Farmers
Insurance Exchange, and Farmers Insurance Company, Inc. have
discriminated against female employees working as attorneys in
Farmers Insurance Exchange's Claims Litigation organization.
The plaintiffs and the defendant Farmers Insurance Exchange have
agreed to the entry of a proposed Collective and Class Action
Settlement Agreement as a full settlement of those disputes and
this legal action.
Lynne Coates, Plaintiff, represented by Jennie Lee Anderson --
jennie@andrusanderson.com -- Andrus Anderson LLP, Lori J.
Costanzo, Costanzo Law Firm & Lori Erin Andrus --
lori.andrus@andrusanderson.com -- Andrus Anderson LLP.
Serena Neves, Karen Wasson, Keever Rhodes, Celeste Stokes,
Plaintiffs, represented by Lori Erin Andrus, Andrus Anderson LLP.
Farmers Group, Inc., Farmers Insurance Exchange, Farmers Insurance
Company, Inc., Defendants, represented by Nancy L. Abell --
nancyabell@paulhastings.com -- Paul Hastings LLP, Heather Ann
Morgan -- heathermorgan@paulhastings.com -- Paul Hastings LLP, Meg
Kochuba, Paul Hastings LLP, pro hac vice, Neal D. Mollen --
nealmollen@paulhastings.com -- Paul Hastings LLP, pro hac vice &
Valerie Margaret Marek -- valeriemarek@paulhastings.com -- Paul
Hastings LLP.
FIAT CHRYSLER: Yelchin's Death Sparks Cherokee Class Action
-----------------------------------------------------------
Reid Nakamura, writing for The Wrap, reports that "Star Trek"
actor was killed by his Jeep Grand Cherokee in a freak accident on
June 19.
A class action lawsuit filed against Jeep Grand Cherokee
manufacturer Fiat Chrysler Automobiles cites the death of "Star
Trek" actor Anton Yelchin as evidence of the vehicle's poor
manufacturing.
Filed by the law firm Hagens Berman Sobel Shapiro LLP on behalf of
Deryl Wall, Justine Andollo, Danielle and Joby Hackett, the suit
accuses the company of an "unreasonable delay" in fixing a defect
in 2014-15 Jeep Grand Cherokees that was known to create a
"rollaway" risk.
The problem lies with the vehicle's gear shifter, which has a
design the suit says is "dangerously defective because there is no
tactile or position feedback to the operator as to whether the
care has actually been placed into the safe-to-exit 'park' gear."
Mr. Yelchin was found dead on June 19, stuck between his own car
and a brick mailbox at his San Fernando Valley, California home,
police told TheWrap. Mr. Yelchin's vehicle reportedly was a late-
model Jeep Grand Cherokee.
The class action suit suggests Mr. Yelchin's death may have been
related to the "rollaway" risk that caused the manufacturer to
issue a recall in April. However, the FCA said the connection was
"premature" in a statement issued on June 20.
The complaint accuses FCA of delaying its response, only issuing a
recall of "over 811,000" vehicles in the U.S. in April, despite
the facts that reports date back to early 2015. "FCA's
unreasonable delay in fixing the defect and its warning letter was
obviously too little, too late for Mr. Yelchin," the complaint
says.
According to a report by FCA, the company had identified
approximately 700 field reports potentially related to the issue,
which included 212 crashes, 308 claims of property damage and 41
injuries as of April 12.
The plaintiffs call for punitive damages for fraud, the immediate
replacement of the defective gear shifter, a temporary replacement
car and compensation for any additional costs owners may have
incurred.
FIRST SECURITY: Settlement Remains Subject to Court Approval
------------------------------------------------------------
Atlantic Capital Bancshares, Inc. said in its Form 10-Q Report
filed with the Securities and Exchange Commission on May 13, 2016,
for the quarterly period ended March 31, 2016, that the settlement
reached in the case, In re First Security Group, Inc. Stockholder
Litigation, Case No. 15-0212, remains subject to final court
approval.
Two putative shareholder class action lawsuits were filed in
connection with the merger. Knutson v. First Security Group, Inc.
et al., filed April 15, 2015 in the Chancery Court for Hamilton
County, Tennessee, names First Security, the members of its board
of directors, and the Company as defendants. Meade v. Kramer, et
al., filed April 24, 2015 in the Chancery Court for Hamilton
County, Tennessee, names First Security, the members of its board
of directors, FSGBank, the Company, and the Bank as defendants.
Each of these complaints alleges, among other things, that the
First Security directors breached their fiduciary duties in
connection with the negotiation and approval of the merger
agreement and that the other named defendants, including the
Company, aided and abetted those alleged breaches of fiduciary
duties. Among other relief, the plaintiffs sought injunctive
relief preventing the parties from consummating the merger,
rescission of the transactions completed by the merger agreement,
an award of attorney's fees and expenses for plaintiffs and other
forms of relief. On June 1, 2015, the Chancery Court entered an
order consolidating these two suits under the caption In re First
Security Group, Inc. Stockholder Litigation, Case No. 15-0212. On
June 25, 2015, the plaintiffs filed an amended and consolidated
class action complaint in the Chancery Court for Hamilton County,
Chattanooga. The amended complaint repeats many of the same
allegations of the original complaints but also makes additional
allegations with respect to disclosures contained in the joint
proxy statement/prospectus. On July 24, 2015, the defendants filed
motions to dismiss the amended complaint.
On August 25, 2015, First Security, the Company and the other
named defendants and the plaintiffs entered into a Memorandum of
Understanding (the "MOU") regarding the settlement of the above-
described lawsuits. The MOU agreed on the terms of a settlement of
the lawsuits, including the dismissal with prejudice of the suit
captioned In re First Security Group, Inc. Stockholder Litigation
and a release of all claims that were made or could have been made
therein against all of the defendants. The parties have agreed on
a Stipulation of Settlement, a Proposed Order on Notice and
Scheduling, a Proposed Notice to class members, and a Proposed
Final Order and those documents have been submitted to the
Chancery Court for Hamilton County, Tennessee. In addition, in
connection with the settlement and as provided in the MOU, the
parties have agreed on an amount of attorneys' fees and expenses,
$265,000, that Plaintiffs' counsel will request from the Court and
to which the defendants will not object. The proposed settlement
is conditioned upon, among other things, final approval of the
proposed settlement by the Court after notice is given to
shareholders. There can be no assurance that the court will
approve the settlement in all respects and if the court does not
approve the proposed settlement, the proposed settlement as
contemplated by the MOU could become void. The settlement will not
affect the amount of the merger consideration that First Security
shareholders received in the merger.
On October 31, 2015, Atlantic Capital completed its acquisition of
First Security Group, Inc. and its subsidiary FSGBank, N.A.
(together, "First Security").
FISHBONE SAFETY: Faces "Green" Lawsuit Under FLSA, Col. Wage Act
----------------------------------------------------------------
MICHAEL GREEN, on behalf of himself and all similarly situated
persons, Plaintiff, v. FISHBONE SAFETY SOLUTIONS, LTD., a Texas
limited partnership, WILLIAM S. CAIN, and BCS INTEREST, LLC, a
Texas limited liability company, Defendants, Case 1:16-cv-01594
(D. Col., June 22, 2016), was filed under the Fair Labor Standards
Act and the Colorado Wage Claim Act.
Fishbone provides safety inspection services to oil companies in
various states.
The Plaintiff is represented by:
Brian D. Gonzales, Esq.
THE LAW OFFICES OF BRIAN D. GONZALES, PLLC
242 Linden Street
Fort Collins, CO 80524
Phone: (970) 214-0562
Fax: (303) 539-9812
E-mail: BGonzales@ColoradoWageLaw.com
GLK FOODS: Class Notice to Include Exclusion Request Forms
----------------------------------------------------------
In the case, ANDRE JEAN-BAPTISTE, individually and on behalf of
all persons similarly situated, Plaintiff, v. GLK FOODS LLC,
Defendant, Case No. 15-C-636 (E.D. Wis.), Chief District Judge
William C. Griesbach directed the parties to to include with the
approved mailing of class notice, an Exclusion Request Form for
class members who wish to exercise the right to be dropped from
the lawsuit.
Members of the class consist of all migrant agricultural workers
furnished to defendant by farm labor contractor in 2011 for
employment at the processing facility.
Pursuant to Fed.R.Civ.P. 23(c)(2)(B), each putative class member
must be provided with the best notice practicable under the
circumstances, and Judge Griesbach agrees that to include such a
form with a class notice is fair-minded and beneficial.
The court further instructed that defendant may shoulder added
expense in its request to include pre-addressed and stamped
envelopes with the opt-out form. It was noted that an extended
deadline of 120 days from the mailing of the class notices should
be set for the class members to opt out. Parties are directed to
ensure that the mailing list used is as up to date as reasonably
possible based on the information available to them.
A copy of the court's decision dated June 24, 2016 is available at
http://goo.gl/t6XlUzfrom Leagle.com.
Andre Jean-Baptiste, Plaintiff, represented by Gregory Scott
Schell -- greg@floridalegal.org -- Migrant Farmworker Justice
Project.
GLK Foods LLC, Defendant, represented by Bradley Scott Bell --
bbell@bbellpa.com -- Bell Law Group PA & Gregory B. Gill, Sr. --
gbgillsr@new.rr.com -- Gill & Gill SC.
GOODFELLOWS: "Bailey" Suit to Recover Overtime Pay, Tips
--------------------------------------------------------
Monic Bailey, on behalf of herself and all others similarly
situated, Plaintiff, v. Goodfellows of Pasco County, Inc., a
Florida Corporation, Defendant, Case No. 8:16-cv-01498 (M.D. Fla.,
June 10, 2016) seeks to recover unpaid minimum wage, overtime pay,
misappropriated tips, interest, reasonable attorney fees, costs
and expenses and such other relief under the Fair Labor Standards
Act.
Goodfellows of Pasco County, Inc. misclassified its employees as
contractors, thus denying them the applicable minimum wage and
overtime rates.
The Plaintiff is a former exotic dancer.
The Plaintiff is represented by:
Chad E. Levy, Esq.
LEVY & LEVY, P.A.
915 Middle River Drive, Suite 518
Fort Lauderdale, FL 33304
Telephone: 954-763-5722
Facsimile: 954-763-5723
Email: chad@levylevylaw.com
GOOGLE INC: Fiber Alters User Agreement to Avert Class Action
-------------------------------------------------------------
Jenna Lewis, writing for Apex Tribune, reports that Google Fiber
quietly altered user agreement with a provision that would deprive
customers from their right to sue the company in court. The new
terms of the deal include a ban on civil action, a legal procedure
that usually benefit customers the most.
Instead, Google Fiber subscribers are now forced into accepting a
procedure called binding arbitration unless they opt out. But
because according to Consumer Financial Protection Bureau only 7
percent of users understand what is written in a
telecommunications contract, millions of users will see themselves
forced into a legal procedure without even knowing it.
Critics of the measure said that his way Google will shield itself
against large-scale accountability since only customers who opted
out the changes will be able to sue it in court or join a class
action lawsuit.
The changes took place June 9 and there is a 30-day time frame
before the right to opt out expires.
So you better hurry up and file the opt-out form through your
Fiber account if you plan to still be able to sue Google, just in
case.
The practice, although it may look abusive, is perfectly legal and
many IPSs and telecom giants have embraced it in recent years
including Comcast, Verizon, and AT&T. Forced arbitration clauses
are extremely good at working to the benefit of big companies.
Binding arbitration is bad for the consumers for a series of
reasons. For one, it is financially burdening not to be able to
join a class action suit. Second, damages are limited so few
lawyers will accept to represent you on such cases. But the icing
on the cake is that the ruling is final despite any obvious
mishaps and that there's an explicit ban on class actions like
forever.
Google Fiber declined to comment on the changes but it did notify
its customers via e-mail. Yet, it is highly unlikely that many of
them will understand the confusing terms in the new agreement.
So, if you haven't managed to opt out in due time, only federal or
state action could bring back your fundamental right to sue Google
in court. There is a light of hope if a proper justice will
replace late Justice Antonin Scalia at the Supreme Court.
The Consumer Financial Protection Bureau could also propose some
rules to bar Google Fiber from forcing consumers into binding
arbitration. The CFPB has taken steps to deter the procedure in
financial services contracts so it is not hard to expand the rules
to telecoms too.
GREAT-WEST LIFE: Judge Certifies Investor Class Action
------------------------------------------------------
Jacklyn Wille, writing for Bloomberg BNA, reports that Great-West
Life & Annuity Insurance Co. lost another battle in a lawsuit
challenging the money it makes off annuity contracts sold to
401(k) investors (Teets v. Great-West Life & Annuity Ins. Co. , D.
Colo., No. 1:14-cv-02330-WJM-NYW, 6/22/16 ).
A federal judge in Colorado certified the case as a class action
on behalf of more than 270,000 investors in about 13,600 different
retirement plans. The judge also denied Great-West's attempt to
block expert testimony on the amount of money at stake in the
lawsuit.
"We see this as a big step forward in getting class members the
recovery they deserve," Nina Wasow, a partner with Feinberg
Jackson Worthman & Wasow LLP and counsel for the plan
participants, told Bloomberg BNA June 23.
Ms. Wasow also praised the judge for recognizing that the Great-
West investment fund at issue affected all 401(k) plan
participants in the same way.
A spokesman for Great-West said the company would continue the
fight.
"This lawsuit and the claims it makes are without merit, and we
will continue to defend the matter vigorously," Stephen Gawlik,
director of public relations for Great-West, told Bloomberg BNA
June 23.
The dispute centers on the Great-West Key Guaranteed Portfolio
Fund, a guaranteed investment contract the company offered to
participants in 401(k) plans. According to the plan participants
who filed suit, Great-West's ability to unilaterally set the
interest rate participants earned off this product allowed it to
keep more than $350 million per year in profits that should have
been distributed to 401(k) investors. The participants claim this
violates the Employee Retirement Income Security Act.
Great-West defended its handling of the fund by characterizing the
fund as a "guaranteed benefit policy" exempt from ERISA. This
argument failed to persuade Judge William J. Martinez, who denied
Great-West's motion to dismiss the lawsuit in spring 2015.
In his most recent ruling -- issued June 22 -- Judge Martinez
granted the plan participants' motion for class certification,
finding that they satisfied the requirements of rules 23(b)(1) and
23(b)(3) of the Federal Rules of Civil Procedure.
Judge Martinez also denied Great-West's request to exclude expert
testimony from Steven Pomerantz, a mathematics professor who
frequently testifies in lawsuits involving mutual funds and 401(k)
plan investments.
Great-West argued that Mr. Pomerantz's method for calculating the
fund's profits was "fundamentally flawed" because he failed to
consider certain of the company's costs. Judge Martinez found no
reason to exclude Mr. Pomerantz's testimony on this ground, noting
that Great-West remained "free to cross-examine Pomerantz on these
issues."
The participants are represented by Keller Rohrback LLP, Schneider
Wallace Cottrell Brayton Konecky, Feinberg Jackson Worthman &
Wasow LLP and Law Offices of Scot D. Bernstein PC. Great-West is
represented by Sidley Austin LLP and Wheeler Trigg O'Donnell LLP.
GSSD INVESTMENTS: "Chiriboga" Suit Alleges FLSA Violation
---------------------------------------------------------
PATRICIO CHIRIBOGA, JERRY HARVELL, and ALL OTHERS SIMILARLY
SITUATED, Plaintiffs v. GSSD INVESTMENTS, LLC, and SCOTT ALAN
DARNELL, Defendants, Case 4:16-cv-01798 (S.D. Tex., June 22,
2016), alleges violations of the Fair Labor Standards Act.
GSSD Investments LLC is a mid-sized organization in the investors
industry.
The Plaintiffs are represented by:
Hessam Parzivand, Esq.
THE PARZIVAND LAW FIRM, PLLC
10701 Corporate Dr. Suite 185
Stafford, TX 77477
Phone: [713] 533-8171
Fax: [713] 533-8193
E-mail: hp@parzfirm.com
GYRODYNE LLC: Court Entered Final Order Approving Settlement
------------------------------------------------------------
Gyrodyne, LLC said in its Form 10-Q Report filed with the
Securities and Exchange Commission on May 13, 2016, for the
quarterly period ended March 31, 2016, that a Court has entered a
Final Order and Judgment approving the settlement in a class
action lawsuit.
On July 3, 2014, a purported stockholder of the Company filed a
putative class action lawsuit against the Company and members of
its board of directors (the "Individual Defendants"), and against
GSD and Gyrodyne, LLC (collectively, the "Defendants"), in the
Supreme Court of the State of New York, County of Suffolk (the
"Court"), captioned Cashstream Fund v. Paul L. Lamb, et al., Index
No. 065134/2014 (the "Action"). The complaint alleges, among
other things, that (i) the Individual Defendants breached their
fiduciary duties or aided and abetted the breach of those duties
in connection with the merger and (ii) the Company and the
Individual Defendants breached their fiduciary duties by failing
to disclose material information in the Proxy
Statement/Prospectus.
On July 20, 2015, the plaintiff filed a supplemental complaint
with the Court. The claims, relief sought, and Defendants named
in the supplemental complaint remained the same.
On August 14, 2015, the parties to the Action entered into a
Stipulation of Settlement (the "Settlement") providing for the
settlement of the Action, subject to the Court's approval. Under
the Settlement, Gyrodyne supplemented its Proxy Statement on
August 17, 2015 with certain supplemental disclosures, and has
agreed that any sales of its properties would be affected in
arm's-length transactions at prices at or above their then most
recent appraised values. The plaintiff, on behalf of itself and
the members of the putative class it represents, has agreed to
release and dismiss with prejudice all claims that had or could
have been asserted in the Action or in any other forum against the
Defendants and their affiliates and agents arising out of or
relating to the merger and the other transactions alleged by
plaintiff in its complaint, as supplemented.
On April 8, 2016, the Court entered a Final Order and Judgment
approving the Settlement. By order of the same date, the Court
also granted plaintiff's application for an award of attorneys
fees and reimbursement of expenses in the amount of $650,000.
On September 1, 2015, Gyrodyne, LLC (NASDAQ: GYRO), a New York
limited liability company ("Gyrodyne", the "Company" or the
"Registrant"), announced the completion of the previously
announced merger of Gyrodyne Company of America, Inc. (the
"Corporation") and Gyrodyne Special Distribution, LLC ("GSD") with
and into Gyrodyne (the "Merger").
HAVEN DEVELOPMENTAL: "Armstead" Lawsuit Alleges Violation of FLSA
-----------------------------------------------------------------
STEPHANIE ARMSTEAD, PLAINTIFF, v. HAVEN DEVELOPMENTAL CARE, INC.,
CAROL TRIM BAGOT, DEFENDANTS, Case 1:16-cv-02151-SCJ (N.D. Ga.,
June 22, 2016), seeks payment for unpaid wages, overtime wages,
liquidated damages, actual damages, compensatory damages, for
Defendants' alleged violation of the FLSA.
The Defendants describe their business as providing community
living arrangement for individuals diagnosed with intellectual and
developmental disabilities.
The Plaintiff is represented by:
THE VAUGHN LAW FIRM, LLC
Christopher D. Vaughn, Esq.
Frank DeMelfi, Esq.
A. Brian Henson, Esq.
246 Sycamore Street Suite 150
Decatur, GA 30030
Phone: 404-378-1290
Fax: 404-378-1295
HOOPER HOLMES: Settlement Reached in N.J. Class Suit
----------------------------------------------------
Hooper Holmes, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on May 13, 2016, for the
quarterly period ended March 31, 2016, that the Company has
reached a preliminary understanding with the plaintiffs with
respect to a settlement of a class action lawsuit.
On May 24, 2012, a complaint was filed against the Company in the
United States District Court for the District of New Jersey
alleging, among other things, that the Company failed to pay
overtime compensation to a purported class of certain independent
contractor examiners who, the complaint alleges, should be treated
as employees for purposes of federal law. The complaint seeks
award of an unspecified amount of allegedly unpaid overtime wages
to certain examiners. The Company filed an answer denying the
substantive allegations therein.
On August 1, 2014, the Magistrate Judge issued a Report and
Recommendation to conditionally certify the class of all contract
examiners from August 16, 2010, to the present. On August 29,
2014, the Company submitted its objections to the Report and
Recommendation of the Magistrate Judge.
On April 29, 2016, the Company reached a preliminary understanding
with the plaintiffs with respect to a settlement of the lawsuit
involving a release of all claims by the plaintiffs and the
Company's establishment of a settlement fund of $0.45 million.
Accordingly, as of March 31, 2016, the Company had accrued 0.45
million related to this matter versus $0.3 million as of December
31, 2015. The litigation accrual for all periods was included in
the Accrued expenses line item on the condensed consolidated
balance sheet. The additional expense of $0.15 million recorded
during the three month period ended March 31, 2016, is included in
the Discontinued operations line item on the condensed
consolidated statements of operations. This preliminary
understanding is subject to approval by the Magistrate and the
parties' entry into a definitive settlement agreement. The claim
is not covered by insurance, and the Company is incurring legal
costs to defend the litigation which are recorded in discontinued
operations. This matter relates to the former Portamedic service
line for which the Company retained liability.
HORIZON PHARMA: Court Won't Reconsider June 6 Order in "Schaffer"
-----------------------------------------------------------------
In the case captioned GEORGE S. SCHAFFER, et al., Plaintiffs, v.
HORIZON PHARMA PLC, et al., Defendants, No. 16-CV-1763 (JMF)
(S.D.N.Y.), Judge Jesse M. Furman denied the request of ERS-PREPA
for reconsideration of the court's order dated June 6, 2016.
The case was brought as a putative class action under the Private
Securities Litigation Reform Act of 1995 (PSLRA), Title 15, United
States Code, Section 78u-4. At a conference held on June 3, 2016,
the Court granted the Retirement Trust Funds' motion to be
appointed Lead Plaintiff, and denied ERS-PREPA's motion for the
same. The Court concluded that while ERS-PREPA had "the largest
financial interest" and thus was the presumptive lead plaintiff,
that presumption had been rebutted by "proof" that ERS-PREPA would
not "adequately protect the interests of the class" given the
fiscal crisis in Puerto Rico and the high probability that ERS-
PREPA would be embroiled, even if indirectly, in litigation of an
all-consuming variety. The Court's ruling was memorialized in an
Order signed June 6, and entered the day after.
On June 9, 2016, ERS-PREPA submitted a "motion for reargument" --
which the Court construed (as ERS-PREPA itself does) as a motion
for reconsideration of the June 6, 2016 Order.
Judge Furman, however, found that ERS-PREPA points to no contrary
controlling authority or overlooked data, and concluded that ERS-
PREPA presents no valid grounds for reconsideration.
A full-text copy of Judge Furman's June 27, 2016 memorandum
opinion and order is available at https://is.gd/yMWHFt from
Leagle.com.
Locals 302 and 612 of the International Union of Operating
Engineers-Employers Construction Industry Retirement Trust, Lead
Plaintiff, represented by Alec Tibor Coquin -- acoquin@labaton.com
-- Labaton & Sucharow LLP, Christine Marie Fox -- cfox@labaton.com
-- Labaton & Sucharow LLP, Jonathan Gardner --
jgardner@labaton.com -- Labaton Sucharow, LLP, Michael Walter
Stocker -- mstocker@labaton.com -- Labaton & Sucharow LLP, Francis
Paul McConville -- fmcconville@labaton.com -- Labaton & Sucharow
LLP & Serena Pia Hallowell -- shallowell@labaton.com -- Labaton &
Sucharow LLP.
George S. Schaffer, Plaintiff, represented by Joseph Alexander
Hood, II -- ahood@pomlaw.com -- Pomerantz LLP & Jeremy Alan
Lieberman -- jalieberman@pomlaw.com -- Pomerantz LLP.
Jonathan Walden, Movant, represented by Shane Thomas Rowley --
srowley@zlk.com -- Levi & Korsinsky, LLP.
Employees' Retirement System of the Puerto Rico Electric Power
Authority, Movant, represented by Robert Craig Finkel --
rfinkel@wolfpopper.com -- Wolf Popper LLP.
Springer and Nichols, Movant, represented by Phillip C. Kim --
pkim@rosenlegal.com -- The Rosen Law Firm P.A..
City of Atlanta Firefighters' Pension Fund, Movant, represented by
Curtis Victor Trinko , Law Offices of Curtis V. Trinko, LLP.
Carpenters Pension Trust Fund for Northern California, Movant,
represented by Alec Tibor Coquin , Labaton & Sucharow LLP,
Christine Marie Fox , Labaton & Sucharow LLP, Jonathan Gardner ,
Labaton Sucharow, LLP,Michael Walter Stocker , Labaton & Sucharow
LLP, Francis Paul McConville , Labaton & Sucharow LLP & Serena Pia
Hallowell , Labaton & Sucharow LLP.
Automotive Industries Pension Trust Fund, Movant, represented by
Gerald H. Silk -- jerry@blbglaw.com -- Bernstein Litowitz Berger &
Grossmann LLP.
Horizon Pharma PLC, Timothy P. Walbert, Paul W. Hoelscher, Robert
J. De Vaere, Defendants, represented by Jonathan Paul Bach --
jbach@cooley.com -- Cooley LLP.
HURON VALLEY CORRECTIONAL: Stewart Wins Summary Judgment
--------------------------------------------------------
In the case, MEAGEN DEGNER, Plaintiff, v. ANTHONY STEWART, et al.,
Defendants, Case No. 16-cv-11068 (E.D. Mich.), District Judge Mark
A. Goldsmith granted summary judgment against the plaintiff for
failure to exhaust administrative remedies under the Prison
Litigation Reform Act of 1995.
Plaintiff alleged a violation of her guaranteed right to counsel
and right to freedom of speech under the First Amendment. The
issue concerns with the overcrowding at the Huron Valley
Correctional Facility for Women.
As a matter of law, the court entitled defendant a summary
judgment when plaintiff did not complete the Michigan Department
of Corrections' grievance process, ignoring the mandated
exhaustion requirement under the PLRA. Judge Goldsmith added that
a separate judgment will be entered. A copy of the decision dated
June 24, 2016 is available at http://goo.gl/iAtwWVfrom
Leagle.com.
Meagen Degner, Plaintiff, represented by David Scott Parnell, The
Parnell Firm, PLLC, Lynn H. Shecter, Roy, Shecter, and Vocht,
P.C., Sean R. O'Mara, O'Mara Law Firm PC, William A. Roy, Roy,
Shecter & Vocht, P.C. & Michelle E. Vocht, Roy, Shecter & Vocht,
P.C.
Anthony Stewart, et al., Defendant, represented by Michael R.
Dean, Michigan Department of Attorney General.
HYUNDAI MOTOR: Faces "Denberg" Lawsuit Alleging Violation of TCPA
-----------------------------------------------------------------
MATTHEW DENBERG, Plaintiffs v. HYUNDAI MOTOR FINANCE, INC. and
JOHN DOES 1-25, Defendants, Case 3:16-cv-03670-MAS-LHG (D.N.J.,
June 22, 2016), was brought for damages, injunctive relief, and
any other available legal or equitable remedies, resulting from
the alleged illegal actions of Hyundai Motor Finance, Inc. and its
related entities, subsidiaries and agents in negligently,
knowingly, and/or willfully contacting Plaintiffs on Plaintiffs'
cellular telephone, in violation of the Telephone Consumer
Protection Act, thereby invading Plaintiffs' privacy.
Hyundai Motor Finance provides a full range of auto finance and
leasing solutions to Hyundai customers.
The Plaintiff is represented by:
Ari Marcus, Esq.
MARCUS & ZELMAN, LLC
1500 Allaire Avenue, Suite 101
Ocean, NJ 07712
Phone: (732) 695-3282
Fax: (732) 298-6256
E-mail: Ari@MarcusZelman.com
IMMUNOMEDICS INC: "Becker" Sues Over Share Price Drop
------------------------------------------------------
Austin Becker, individually and on behalf of all others similarly
situated, Plaintiff, v. Immunomedics, Inc., Cynthia L. Sullivan,
and Peter P. Pfreundschuh, Defendants, Case No. 2:16-cv-03374
(D.N.J., June 10, 2016), seeks compensatory damages, damages
sustained, reasonable attorney fees, pre-judgment and post-
judgment interest and equitable and/or injunctive relief for
violation of the Securities Exchange Act of 1934.
Defendant Immunomedics is a Delaware corporation with its
headquarters located at 300 The American Road, Morris Plains, New
Jersey, 07950. It is a biopharmaceutical company developing
immunotherapeutics for the treatment of cancer, autoimmune and
other serious diseases.
The Defendant allegedly tried to sneak old, previously presented
clinical data on its triple-negative breast cancer drug IMMU-132
into the American Society of Clinical Oncology (ASCO) annual
meeting. Based on this news, shares of Immunomedics fell to close
at $4.52, a drop of approximately 15%.
Plaintiff purchased Immunomedics securities at artificially
inflated prices and lost substantially.
The Plaintiff is represented by:
James S. Notis, Esq.
Mark C. Gardy, Esq.
James S. Notis, Esq.
GARDY & NOTIS, LLP
560 Sylvan Avenue, Suite 3085
Englewood Cliffs, NJ 07632
Tel: 201-567-7377
Fax: 201-567-7337
Email: mgardy@gardylaw.com
jnotis@gardylaw.com
- and -
Jeffrey C. Block, Esq.
Steven P. Harte, Esq.
Jake Walker, Esq.
BLOCK & LEVITON LLP
155 Federal Street, Suite 400
Boston, MA 02110
Tel: 617-398-5600
Fax: 617-507-6020
Email: Jeff@blockesq.com
Steven@blockesq.com
Jake@blockesq.com
INTERTEK TESTING: "Costeiu" Remanded to Sacramento Superior Court
-----------------------------------------------------------------
In the case, QUENTIN COSTEIU; individually, and on behalf of other
members of the general public similarly situated and on behalf of
aggrieved employees pursuant to the Private Attorneys General Act;
Plaintiff, v. INTERTEK TESTING SERVICES NA, INC., an unknown
business entity, et al., Defendants, Case No. 2:16-CV-00583-JAM-AC
(E.D. Cal.), District Judge John A. Mendez approved plaintiff's
motion to remand during a hearing on June 14, 2016. The court
remanded the case to the Sacramento Superior Court.
As a consequence of a remanded case, the court does not reach the
merits of plaintiff's motion to strike, and denies it as moot.
The order stems from the defendants' failure to establish a
preponderance of the evidence at the hearing that the amount in
controversy exceeds $5 million as required by the Class Action
Fairness Act of 2005, otherwise, defendant may have removed the
action to federal court.
A copy of the court's June 24, 2016 decision is available at
http://goo.gl/n8Uoe5from Leagle.com.
Quentin Costeiu, Plaintiff, represented by Edwin Aiwazian --
edwin@lfjpc.com -- Lawyers for Justice, PC, Ashley Haber Cruz --
ashley@lfjpc.com -- Lawyers For Justice, PC, Jill Jessica Parker
-- jill@lfjpc.com -- Lawyers for Justice, PC & Romina Keshishyan
-- romina@lfjpc.com -- Lawyers for Justice.
Intertek Testing Services, et al., Defendants, represented by
Andrew M. McNaught -- amcnaught@seyfarth.com -- Seyfarth Shaw LLP,
Andrew Marc Paley -- apaley@seyfarth.com -- Seyfarth Shaw, LLP,
Coby Marie Turner -- cturner@seyfarth.com -- Seyfarth Shaw LLP,
Jennifer M. Holly -- hollyj@gtlaw.com -- Seyfarth Shaw LLP &
Duwayne Andre Carr -- dacarr@seyfarth.com -- Seyfarth Shaw LLP.
JOE'S KWIK: Faces Class Action Over Unpaid Overtime Wages
---------------------------------------------------------
Terrie Morgan-Besecker, writing for The Times-Tribune, reports
that a manager for Joe's Kwik Marts filed a federal class action
lawsuit against the company, alleging she and other managers
improperly were denied overtime pay in violation of state and
federal wage laws.
Jenny Shiptoski of Old Forge claims she routinely worked 50 to 70
hours per week at several of the company's convenience stores. The
firm improperly avoided paying her overtime by classifying her as
a salaried manager when, in reality, most of her time was spent
doing nonmanagerial duties performed by hourly employees.
By law, employers are not required to pay salaried employees
overtime under most circumstances. The employer must show that
the employee's duties were significantly different from hourly
employees to qualify for that exemption, Ms. Shiptoski's attorney,
Pete Winebrake of Dresher, said in an interview.
"One of the myths out there is that everyone who is paid a salary
is not entitled to overtime. In fact, for a manager to be exempt,
they have to perform managerial work," Mr. Winebrake said. "We
are alleging that, even though the plaintiff and other managers
had the job title, they really performed the day-to-day work of
hourly employees."
Joe's Kwik Marts has 22 locations in Northeast Pennsylvania,
including Scranton, Dunmore, Taylor, Archbald, Clarks Summit and
Dupont, the company's website says.
The lawsuit names SMG Group LLC of Allentown, the corporate parent
of the convenience stores, as the defendant.
Jeff Vaughan, a spokesman for SMG Group, declined to comment other
than to say the company cares deeply for its employees.
The suit alleges the company violated the Fair Labor Standards Act
and Pennsylvania Minimum Wage Act. It seeks back pay and asks a
judge to certify the case as a class action to include all
managers.
JOHNSON & JOHNSON: Transvaginal Mesh Suits Commence in Canada
-------------------------------------------------------------
Jane Mundy, writing for LawyersandSettlements.com, reports that
Canadian transvaginal mesh lawsuits continue to grow and Canadian
class actions have begun against a number of TVM manufacturers,
making it the largest legal action ever against a medical device.
Transvaginal mesh class actions in Canada have commenced against
Johnson & Johnson, American Medical Systems, Boston Scientific,
and Covidien. And several individual lawsuits have been settled
out of court.
Canadian AMS vaginal mesh class action
There are two American Medical Systems (AMS) class-action lawsuits
initiated in Canada with Siskinds Law Firm: one involves alleged
injuries to treat Stress Urinary Incontinence ("SUI") and the
other to treat Pelvic Organ Prolapse ("POP"). Both the AMS SUI
Class Action and AMS POP Class Action were certified on
May 28, 2015. Both class actions claim that AMS marketed and sold
the transvaginal mesh devices without properly warning of alleged
increased risks of injuries, conditions and complications. They
seek damages for personal injuries and damages allegedly suffered
by family members -- such as loss of consortium.
(If you do not know the brand of transvaginal mesh you were
implanted with, you should request your medical records -- it is
your right. If you need help, an experienced transvaginal mesh
attorney can help.)
Coloplast TVM Canada
The class action commenced against Coloplast Canada Corporation in
September 2012 will be discontinued on July 15, 2016. The
plaintiffs and Siskinds Law Firm, their legal counsel, decided
that the class action will no longer be pursued. In February
2016, they filed motion materials with the Ontario Superior Court
of Justice to obtain approval of the discontinuance. Although
Coloplast denies liability, it has agreed to attempt to settle
certain claims on an individual basis. It will continue to
consider the settlement of individual claims of which it is given
notice by Siskinds until November 14, 2016.
This discontinuance only relates to the Coloplast transvaginal
mesh class action.
Canadian TVM settlements
Several Canadian women who suffered transvaginal mesh
complications have reached a settlement with one of the mesh
manufacturers. CTV National News (January 2015) reported that
Catherine Buote is among the first of the 35 Canadian women who
will be compensated. She cannot name the TVM manufacturer or
disclose the amount of the settlement. But she did tell CTV that
"compensation will help [but] it won't return her life, or the
lives of the other women affected by mesh, to normal."
Bard Canada, the makers of Avaulta, Align, and Adjust brands of
transvaginal mesh, has agreed to pay some $2.4 million to settle
claims against three products: Avaulta, Align, and Adjust. Bard
has agreed to the settlement "without admission of liability or
wrongdoing."
CTV National News (April 2012) reported that the mesh complication
rate may be 15 percent; however, the actual number of
complications is unknown because Health Canada does not track
patients after surgery. The FDA database of "adverse events" is
thought to represent about 10 percent of actual injuries in the
United States.
Canadian transvaginal mesh attorneys
Attorney Paul Miller at Will Davidson law firm in Toronto is
handling individual lawsuits. As of April 2016, Miller said that
220 Canadian transvaginal mesh cases have settled and about 50
more individuals are getting close to settling.
Other lawyers say their firms are getting two to three new clients
every week to work on similar lawsuits. In Canada, there are
approximately 3,000 women suing the companies that make the mesh.
But that number could be much higher. Health Canada first
licensed transvaginal mesh implants for sale and use in Canada in
1998 and has issued warnings about transvaginal complications as
recently as May 2014.
KAPLAN INC: Response to "Ridley" Class Suit Due July 6
------------------------------------------------------
In the case, KAITLIN RIDLEY, on behalf of herself and all others
similarly situated, Plaintiff, v. KAPLAN INTERNATIONAL NORTH
AMERICA, LLC, Defendant, Case No. 3:16-cv-02536-JCS (N.D. Cal.),
Magistrate Judge Joseph C. Spero approved a joint stipulation
giving the defendant more time to respond to the complaint.
The Defendant's deadline to respond to the complaint is moved from
June 22, 2016 to July 6, 2016. A copy of the court's decision
dated June 24, 2016 is available at http://goo.gl/Lcr2LPfrom
Leagle.com.
Defendant contends that Kaplan, Inc. is the properly named party
and that it was erroneously sued as Kaplan International North
America, LLC. Plaintiff will amend the complaint to name a
different party if appropriate.
Kaitlin Ridley, Plaintiff, represented by Matthew David Carlson,
Lichten & Liss-Riordan, P.C., Michael Louis Freedman --
mfreedman@llrlaw.com -- Lichten & Liss-Riordan, P.C.,Shannon Liss-
Riordan -- sliss@llrlaw.com -- Lichten & Liss-Riordan, P.C., pro
hac vice & Thomas Fowler -- tfowler@llrlaw.com -- Lichten & Liss-
Riordan, P.C., pro hac vice.
Kaplan International North America, LLC, Defendant, represented by
Cheryl D. Orr -- cheryl.orr@dbr.com -- Drinker Biddle & Reath LLP.
KEY ENERGY: Class Action Parties to Conduct Mediation
-----------------------------------------------------
Key Energy Services, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on May 13, 2016, for the
quarterly period ended March 31, 2016, that the parties in a class
action lawsuit are working on scheduling a mediation.
The Company said, "Between May of 2013 and June of 2014, five
lawsuits (four class actions and one enforcement action) were
filed in California involving alleged violations of California's
wage and hour laws. In general, the lawsuits allege failure to pay
wages, including overtime and minimum wages, failure to pay final
wages upon employment terminations in a timely manner, failure to
reimburse reasonable and necessary business expenses, failure to
provide wage statements consistent with California law, and
violations of the California meal and break period laws, among
other claims. Two of the five cases have been consolidated in
United States District Court for the Central District of
California."
"On December 22, 2015, that court issued an order granting in part
and denying in part a class certification motion. The court
certified a class of hourly paid, non-exempt oilfield employees
who allege they did not receive reimbursement for all business
expenses and allege they did not receive all rest breaks required
by California law. The court did not determine whether Key is
liable to any of the class members.
"Plaintiffs have moved to reconsider the class certification
ruling, and the Court has taken that motion under submission.
"In addition, the parties are working on scheduling a mediation.
"The court in one of the remaining cases that had been stayed
pending the outcome of the class certification motion recently
issued an order lifting the stay, and the parties have agreed to
an amended complaint. No date has been set for class
certification.
"The fourth case is waiting for a decision regarding whether it
will move forward in California state court or in federal court.
The fifth case is an enforcement action for civil penalties based
on California's Private Attorneys General Act, which is pending in
California state court.
"We have investigated the claims in all five lawsuits, and intend
to vigorously defend them. Because these cases are at an early
stage, we cannot estimate any possible loss or range of loss."
Key Energy Services, Inc., and its wholly owned subsidiaries
provide a full range of well services to major oil companies,
foreign national oil companies and independent oil and natural gas
production companies.
KEY ENERGY: Lead Plaintiff Did Not File Amended Complaint
---------------------------------------------------------
Key Energy Services, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on May 13, 2016, for the
quarterly period ended March 31, 2016, that the lead plaintiff in
a class action lawsuit has informed the court that it won't file
an amended complaint.
In August 2014, two class action lawsuits were filed in the U.S.
District Court, Southern District of Texas, Houston Division,
individually and on behalf of all other persons similarly situated
against the Company and certain officers of the Company, alleging
violations of federal securities laws, specifically, violations of
Section 10(b) thereunder, and Rule 10(b)-5 thereunder, and Section
20(a) of the Securities Exchange Act of 1934.
Those lawsuits were styled as follows: Sean Cady, Individually and
on Behalf of All Other Persons Similarly Situated v. Key Energy
Services, Inc., Richard J. Alario, and J. Marshall Dodson, No.
4:14-cv-2368, filed on August 15, 2014; and Ian W. Davidson,
Individually and on Behalf of All Other Persons Similarly Situated
v. Key Energy Services, Inc., Richard J. Alario, and J. Marshall
Dodson, No. 4.14-cv-2403, filed on August 21, 2014.
On December 11, 2014, the Court entered an order that consolidated
the two lawsuits into one action, along with any future filed tag-
along actions brought on behalf of purchasers of Key Energy
Services, Inc. common stock. The order also appointed Inter-Local
Pension Fund as the lead plaintiff in the class action and
approved the law firm of Spector Roseman Kodroff & Willis, P.C. as
lead counsel for the consolidated class and Kendall Law Group,
LLP, as local counsel for the consolidated class.
The lead plaintiff filed the consolidated amended complaint on
February 13, 2015. Among other changes, the consolidated amended
complaint added Taylor M. Whichard III and Newton W. Wilson III as
defendants, and sought to represent a class of purchasers of the
Company's stock between September 4, 2012 and July 17, 2014.
Defendants Key Energy Services, Inc., Richard J. Alario, J.
Marshall Dodson and Newton W. Wilson III filed a Motion to Dismiss
on April 14, 2015.
Defendant Taylor M. Whichard III filed a Joinder in Motion and
Motion to Dismiss on the same date. Lead plaintiff filed an
opposition to that motion, and all defendants filed reply briefs
in support of the motion.
On April 1, 2016, the Court issued its Opinion and Order granting
the defendants' Motion to Dismiss. The Court allowed the lead
plaintiff 20 days to file another amended complaint or to inform
the Court that it no longer wishes to proceed with the suit.
On April 20, 2016, the lead plaintiff notified the Court that it
did not intend to amend its complaint. On April 26, 2016, the
Court entered a final judgment dismissing the case. The deadline
for the lead plaintiff to appeal the dismissal of its suit has not
yet expired.
Key Energy Services, Inc., and its wholly owned subsidiaries
provide a full range of well services to major oil companies,
foreign national oil companies and independent oil and natural gas
production companies.
KEY ENERGY: Merit-Based Discovery to Begin in Corpus Christi Suit
-----------------------------------------------------------------
Key Energy Services, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on May 13, 2016, for the
quarterly period ended March 31, 2016, that the parties in two
collective action lawsuits will soon begin merit-based discovery.
In March 2015, two collective action lawsuits were filed in the
Southern District of Texas, Corpus Christi Division, individually
and on behalf of all others similarly situated, alleging
violations of the Fair Labor Standards Act of 1938 ("FLSA").
The Company said, "We agreed to conditional certification in the
first lawsuit and notice of the case issued to 56 putative class
members. Roughly 20% of the eligible putative class members
timely filed a notice of consent to join the lawsuit. We will
soon begin merit-based discovery in the first lawsuit, which we
expect to last at least six months.
"We also agreed to conditional certification in the second lawsuit
and notice of the case recently issued to 14 putative class
members. Nine putative class members, including the named
plaintiff, have filed a notice of consent to join the lawsuit
and the deadline to join expired on April 4, 2016. The parties
will begin merit-based discovery in the second case soon. Because
merit based discovery has not commenced, we cannot predict the
outcome of these cases at this time. Accordingly, we cannot
estimate any possible loss or range of loss for either case."
Key Energy Services, Inc., and its wholly owned subsidiaries
provide a full range of well services to major oil companies,
foreign national oil companies and independent oil and natural gas
production companies.
KEY ENERGY: Merit-Based Discovery to Begin in Houston Suit
----------------------------------------------------------
Key Energy Services, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on May 13, 2016, for the
quarterly period ended March 31, 2016, that the parties in a class
and collective action in Texas will soon begin merit-based
discovery.
In May 2015, a class and collective action lawsuit was filed in
the Southern District of Texas, Houston Division, individually and
on behalf of all others similarly situated, alleging violations of
the FLSA and the New Mexico Minimum Wage Act.
The Company said, "We agreed to conditional certification of a
putative class and notice issued to 174 putative class members.
The notice period closed in early February and roughly 15% of
eligible putative class members timely filed consents to join the
lawsuit. The parties will soon begin merit-based discovery in this
case, which will likely last six to nine months. Because merit
based discovery has not begun, we cannot predict the outcome at
this time. Accordingly, we cannot estimate any possible loss or
range of loss for this case."
Key Energy Services, Inc., and its wholly owned subsidiaries
provide a full range of well services to major oil companies,
foreign national oil companies and independent oil and natural gas
production companies.
KEYNETICS INC: Court Dismisses "Silverstein" Spam Emails Suit
-------------------------------------------------------------
In the case captioned WILLIAM SILVERSTEIN, Plaintiff, v. KEYNETICS
INC., et al., Defendants, Case No. 16-cv-00684-DMR (N.D. Cal.),
Judge Donna M. Ryu granted the motions to dismiss the plaintiff,
William Silverstein's amended complaint.
The motions were separately filed by the defendants, 418 Media LLC
and Lewis Howes, and specially appearing defendants, Keynetics,
Inc. and Click Sales, Inc.
Judge Ryu found that the plaintiff's claims for relief are
preempted by federal law.
A full-text copy of Judge Ryu's June 27, 2016 order is available
at https://is.gd/6Z3Z78 from Leagle.com.
Silverstein brought the putative class action alleging violations
of California's restrictions on unsolicited commercial email.
Silverstein is a member of the group "C, Linux and Networking
Group" on LinkedIn, a professional networking website. Through
his membership in that group, he received unlawful commercial
emails ("spam" emails) that came from fictitiously named senders
through the LinkedIn group email system. The emails were sent
from the domain "linkedin.com," even though non-party LinkedIn did
not authorize the use of its domain, and was not the actual sender
of the emails.
William Silverstein, Plaintiff, represented by Jimmie Chin Twu,
Attorney at Law, Mark Etheredge Burton, Jr , Audet and Partners,
Timothy James Walton -- walton@waltontwu.com -- Walton Twu LLP &
William M. Audet , Audet & Partners, LLP.
Keynetics Inc., Click Sales Inc., Defendants, represented by
Rodger R. Cole -- rcole@fenwick.com Fenwick & West LLP, Sapna S.
Mehta , Fenwick and West LLP & Tyler Griffin Newby , Fenwick &
West LLP.
418 Media LLC, Defendant, represented by Seth Wesley Wiener --
sethwiener@yahoo.com -- Law Offices of Seth W. Wiener & Kavon Adli
-- kavon@tilg.us -- Attorney at Law.
KRAFT HEINZ: "Brahler" Mislabelling Suit Transferred to N.D. Ill.
-----------------------------------------------------------------
George Brahler, on behalf of himself and all others similarly
situated, Plaintiff, v. Kraft Heinz Foods Company, Defendant, Case
No. 1:16-cv-06161 (E.D. Cal., April 25, 2016), was transferred to
United States District Court for the Northern District of
Illinois, and assigned Case No. 2:16-cv-00849.
Defendant labeled its products "100% Grated Parmesan Cheese"
despite claims that it does not contain such.
The Kraft Heinz Company is a corporation organized and existing
under the laws of the state of Delaware. Kraft maintains co-
headquarters in Pittsburgh, Pennsylvania and Chicago, Illinois.
Kraft manufactures over 200 food brands, including its cheese
products.
Plaintiff is represented by:
Michael W. Meredith, PHV
Tana Lin, PHV
KELLER ROHRBACK, LLP
1201 3rd Avenue, Suite 3200
Seattle, WA 98101
Tel: (206) 623-1900
Fax: (206) 623-3384
Email: mmeredith@kellerrohrback.com
tlin@kellerrohrback.com
- and -
Matthew J. Preusch, Esq.
KELLER ROHRBACK, LLP
1129 State Street, Suite 8
Santa Barbara, CA 93101
Tel: (805) 456-1496
Fax: (805) 456-1497
Email: mpreusch@kellerrohrback.com
Defendant is represented by:
Kenneth Kiyul Lee, Esq.
JENNER & BLOCK LLP
633 West 5th Street, Suite 3500
Los Angeles, CA 90071
Tel: (213) 239-5152
Fax: (213) 239-5162
Email: klee@jenner.com
KRAFT HEINZ: "Mattley" Mislabelling Suit Transferred to N.D. Ill.
-----------------------------------------------------------------
Cheryl Mattley, on behalf of himself and all others similarly
situated, Plaintiff, v. Kraft Heinz Foods Company, Defendant, Case
No. 3:16-cv-01616 (N.D. Cal., March 31, 2016), was transferred to
the United States District Court for the Northern District of
Illinois, and assigned Case No. 1:16-cv-06163.
Defendant labeled its products "100% Grated Parmesan Cheese"
despite claims that it does not contain such.
The Kraft Heinz Company is a corporation organized and existing
under the laws of the state of Delaware. Kraft maintains co-
headquarters in Pittsburgh, Pennsylvania and Chicago, Illinois.
Kraft manufactures over 200 food brands, including its cheese
products.
Plaintiff is represented by:
Lionel Z. Glancy, Esq.
Marc L. Godino, Esq.
GLANCY PRONGAY & MURRAY LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
E-mail: info@glancylaw.com
Defendant is represented by:
Kenneth Kiyul Lee, Esq.
JENNER & BLOCK LLP
633 West 5th Street, Suite 3500
Los Angeles, CA 90071
Tel: (213) 239-5152
Fax: (213) 239-5162
Email: klee@jenner.com
KRAFT HEINZ: "Weiss" Mislabelling Suit Transferred to N.D. Ill.
---------------------------------------------------------------
Adam Weiss and Patty Morelos, individually and on behalf of all
others similarly situated, Plaintiffs, v. The Kraft Heinz Company,
Defendant, Case No. 8:16-cv-00605 (C.D. Cal., April 1, 2016), was
transferred to the U.S. District Court for the Northern District
of Illinois, on June 15, 2016, and assigned Case No. 2:16-cv-
00849.
Defendant labeled its products "100% Grated Parmesan Cheese"
despite claims that it does not contain such.
The Kraft Heinz Company is a corporation organized and existing
under the laws of the state of Delaware. Kraft maintains co-
headquarters in Pittsburgh, Pennsylvania and Chicago, Illinois.
Kraft manufactures over 200 food brands, including its cheese
products.
Plaintiff is represented by:
Timothy G. Blood, Esq.
Thomas J. O'Reardon II, Esq.
Camille S. Bass, Esq.
BLOOD HURST & O'REARDON, LLP
701 B Street, Suite 1700
San Diego, CA 92101
Tel: 619/338-1100
Fax: 619/338-1101
Email: tblood@bholaw.com
toreardon@bholaw.com
cbass@bholaw.com
- and -
David R. Markham, Esq.
Peggy J. Reali, Esq.
THE MARKHAM LAW FIRM
750 B Street, Suite 1950
San Diego, CA 92101
Tel: 619/399-3995
Fax: 619/615-2067
Email: dmarkham@markham-law.com
preali@markham-law.com
- and -
Walter L. Haines, Esq.
UNITED EMPLOYEES LAW GROUP, PC
5500 Bolsa Avenue, Suite 201
Huntington Beach, CA 92649
Tel: 562/256-1047
Fax: 562/256-1006
Email: walter@whaines.com
Defendant is represented by:
Kenneth Kiyul Lee, Esq.
JENNER & BLOCK LLP
633 West 5th Street, Suite 3500
Los Angeles, CA 90071
Tel: (213) 239-5152
Fax: (213) 239-5162
Email: klee@jenner.com
- and -
Alexander M. Smith, Esq.
JENNER AND BLOCK LLP
633 West Fifth Street Suite 3600
Los Angeles, CA 90071
Tel: (213) 239-5100
Fax: (213) 239-5199
Email: asmith@jenner.com
KRISPY KREME: "Graham" Suit to Bar Krispy Kreme Acquisition
-----------------------------------------------------------
James Graham, individually and on behalf of all others similarly
situated, v. Tim E. Bentsen, Charles A Blixt, Lynn Crump-Caine,
Carl E. Lee, Jr., Robert S. Mccoy, Jr., James H. Morgan, Andrew J.
Schidler, Lizanne Thomas, Anthony N. Thompson, Krispy Kreme
Doughnuts, Inc., C. Stephen Lynn, Defendants, Case 1:16-cv-00612
(M.D. N.C., June 13, 2016), seeks to bar the acquisition of Krispy
Kreme by JAB Holding B.V. through Cotton Parent Inc.
Pursuant to the merger, Krispy Kreme common stock is cancelled and
converted to $21 in cash. Such is deemed unfair to shareholders
such as the Plaintiff considering the positive growth shown by the
company and denies them the benefits of such growth, says the
complaint.
Plaintiff is represented by:
Janet Ward Black, Esq.
WARD BLACK LAW
208 W. WENDOVER AVE.
Greensboro, NC 27401
Tel: (336) 333-2244
Fax: (336) 379-9415
jwblack@wardblacklaw.com
LYFT INC: $27MM Class Action Settlement Gets Preliminary Okay
-------------------------------------------------------------
Tracey Lien, writing for Los Angeles Times, reports that ride-
hailing company Lyft is one step closer to settling a class-action
lawsuit from drivers who want to be treated as employees after
U.S. District Judge Vince Chhabria in San Francisco granted
preliminary approval to a $27-million settlement.
The sign off comes after Chhabria rejected an initial settlement
offer in April of $12.5 million, saying that it "shortchanged"
drivers. He wrote in a finding on June 21 that the new proposed
settlement agreement "fixes the monetary flaws the court
previously identified and enhances the non-monetary benefits at
least to some degree."
Lyft agreed to make changes to its terms of service, including
giving drivers warnings before they are deactivated and the
ability to take up pay-related issues before a neutral arbitrator
at Lyft's expense.
"We are pleased the court has granted preliminary approval of the
settlement, which maintains the classification of drivers as
independent contractors and brings us one step closer to a final
resolution," said Chelsea Wilson, Lyft's spokeswoman.
"Lyft drivers in California may now receive the benefits of the
settlement rather than waiting years and risking not being able to
proceed on a classwide basis and risking an adverse jury verdict,"
said plaintiff attorney Shannon Liss-Riordan.
The settlement does not decide whether Lyft drivers are employees
or independent contractors, and leaves the matter open to future
litigation.
If the proposed settlement receives final approval, the $27
million will be paid out to an estimated 100,000 Lyft drivers in
California. Those who have driven the most will receive the
highest payments.
Class members will soon be notified of the preliminary approval
and be given the opportunity to opt out or object. A final
settlement hearing is expected later this year.
Receiving preliminary approval for the settlement is a win for
Lyft because it means the company can avoid a costly trial, and it
allows the company to continue its operations without having to
classify its drivers as employees.
The San Francisco company built its business on independent
contractors. Having to bring on drivers as employees would put the
company on the hook for overtime payments, expense reimbursement,
Social Security and other benefits, adding considerable expense
and potentially affecting its $5.5-billion valuation.
Lyft's main competitor, Uber Technologies, is trying to settle a
similar lawsuit. A proposed settlement of up to $100 million is
currently before a U.S. district judge.
MARYLAND: Judge Dismissed "Yi" Suit v. DMV
------------------------------------------
District Judge Paul W. Grimm dismissed the case captioned, CHONG
SU YI, Plaintiff, v. DEPARTMENT OF MOTOR VEHICLE OF GLENMONT
MARYLAND, Defendant, Civil Action No. PWG-16-1369 (D. Md.).
A copy of the court's Memorandum Opinion dated June 23, 2016 is
available at http://goo.gl/wQfUhZfrom Leagle.com.
In the case, plaintiff seeks relief on the suspension and renewal
of his driver's license. The complaint is filed together with a
Motion to Proceed Forma Pauperis, a privilege for an indigent
litigant to commence an action without a filing fee. That motion
is granted.
The court, mindful with the possible abuses of the privilege, is
required to dismiss any claim that is frivolous or malicious, or
fails to state a claim on which relief may be granted. Upon
court's determination, the plaintiff has not provided any
information that might lead to a reasonable conclusion that some
plausible cause of action has accrued on his behalf based on the
suspension and renewal of his driver's license.
MESSERLI & KRAMER: Judge Trims Down Defenses in FDCPA Suit
----------------------------------------------------------
In the case, LOUIS CONTI, individually and on behalf of all others
similarly situated, Plaintiff, v. MESSERLI & KRAMER, P.A.,
Defendant, Case No. 15-C-1489 (E.D. Wisc.), District Judge Rudolph
T. Randa examined plaintiff's move to strike seven paragraphs of
affirmative defenses in a putative class action under the Fair
Debt Collection Practice Act. Defendant concedes that two of the
paragraphs should be stricken.
Pursuant to Federal Rule of Civil Procedure 12(f), the Court may
strike from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.
The court favors with the plaintiff in striking the following
defenses: (1) the defendant's allegation that plaintiff failed to
state a claim upon which relief can be granted; (2) the defense
that plaintiff's claim are barred as a result of failure to
mitigate damages; and (3) the allegation that plaintiff has not
incurred any actual damages.
The following remaining questioned defenses were ruled to be
material to the determination of the case and cannot be of harm in
leaving such allegations intact: (1) that the defendant's
acceptance of oral requests for validation may be relevant to the
computation of statutory damages; and (2) that parties can address
issues relevant to class certification during the course of
discovery. Clearly, plaintiff's motion to strike is partly granted
and partly denied.
A copy of the decision dated June 27, 2016, is available at
http://goo.gl/nnBWzDfrom Leagle.com.
Louis Conti, Plaintiff, represented by Denise L. Morris --
dmorris@ademilaw.com -- Ademi & O'Reilly LLP, Mark A. Eldridge --
meldridge@ademilaw.com -- Ademi & O'Reilly LLP, Shpetim Ademi --
sademi@ademilaw.com -- Ademi & O'Reilly LLP & John D. Blythin --
jblythin@ademilaw.com -- Ademi & O'Reilly LLP.
Messerli & Kramer PA, Defendant, represented by Derrick N. Weber
-- dweber@messerlikramer.com -- Messerli & Kramer PA & James E.
Kachelski -- jkachelski@messerlikramer.com -- Messerli & Kramer
PA.
METHODIST LE BONHEUR: "Brace" Suit Alleges Pension Underfunding
---------------------------------------------------------------
Mary L. Brace, individually and on behalf of herself and all
others similarly situated, Plaintiff, v. Methodist Le Bonheur
Healthcare, The Benefits Committee and John Does 1-20, Defendants,
Case No. 2:16-cv-02412 (W.D. Tenn., June 11, 2016), seeks:
preliminary and permanent injunction removing Defendants as plan
fiduciaries, civil money penalties, declaratory and injunctive
relief, attorney fees and expenses, and such appropriate equitable
relief under the Employee Retirement Income Security Act of 1974.
Mary L. Brace was employed by Defendant as a Registered Nurse up
to 2009, and is a participant on the Methodist Healthcare Classic
Pension Plan. She alleges that the plan was underfunded.
The Plaintiff is represented by:
Paul Kent Bramlett, Esq.
Robert Preston Bramlett, Esq.
BRAMLETT LAW OFFICES
40 Burton Hills Blvd., Suite 200
P.O. Box 150734
Nashville, TN 37215
Telephone: 615.248.2828
Facsimile: 866.816.4116
E-Mails: PKNASHLAW@aol.com
Robert@BramlettLawOffices.com
- and -
Edward W. Ciolko, Esq.
Mark K. Gyandoh, Esq.
Julie Siebert-Johnson, Esq.
KESSLER TOPAZ MELTZER & CHECK, LLP
280 King of Prussia Road
Radnor, PA 19087
Tel: (610) 667-7706
Fax: (610) 667-7056
Email: eciolko@ktmc.com
mgyandoh@ktmc.com
jsjohnson@ktmc.com
- and -
Robert A. Izard, Esq.
Mark P. Kindall, Esq.
IZARD NOBEL LLP
29 South Main Street, Suite 305
West Hartford, CT 06107
Tel: (860) 493-6292
Fax: (860) 493-6290
Email: rizard@izardnobel.com
mkindall@izardnobel.com
MORGAN STANLEY: "Johnson" Suit to Recover Overtime Pay
------------------------------------------------------
Darlene Johnson, Individually and on behalf all others similarly
situated, Plaintiff, v. Morgan Stanley & Co. LLC, f/k/a Morgan
Stanley & Co. Incorporated, Morgan Stanley Smith Barney LLC and
Morgan Stanley, Defendants, Case No. 9:16-cv-80975 (S.D.N.Y., June
3, 2016), seeks overtime compensation and liquidated damages under
the Fair Labor Standards Act of 1938.
Morgan Stanley is a financial services company that provides
brokerage and related products and services to millions of
investors nationwide, where Plaintiff worked as a Client Services
Associate.
Morgan Stanley & Co. LLC, f/k/a Morgan Stanley & Co. Incorporated,
is a Delaware limited liability company with its principal place
of business located in New York, New York. It is a wholly owned
subsidiary of Morgan Stanley.
Morgan Stanley Smith Barney LLC, is a Delaware limited liability
company with its principal place of business located in New York,
New York. It is a partially owned subsidiary of Morgan Stanley.
Morgan Stanley is a Delaware corporation that is a bank holding
company registered with the New York Stock Exchange, among other
regulator agencies and authorities with principal place of
business in New York, New York. Morgan Stanley is a parent company
of Morgan Stanley & Co. LLC and Morgan Stanley Smith Barney LLC.
Plaintiff is represented by:
Seth R. Lesser, Esq.
Jeffrey A. Klafter
Fran L. Rudich, Esq.
KLAFTER, OLSEN & LESSER, LLP
Two International Drive, Suite 350
Rye Brook, NY 10573
Telephone: (914) 934-9200
Facsimile: (914) 934-9220
- and -
Gregg I. Shavitz, Esq.
Susan H. Stern, Esq.
Paolo Miereles, Esq.
SHAVITZ LAW GROUP, P.A.
1515 South Federal Highway, Suite 404
Boca Raton, FL 33432
Tel: (561) 447-8888
Michael J. Palitz (MP7883)
E-mail: mpalitz@shavitzlaw.com
- and -
Michael J. Palitz, Esq.
SHAVITZ LAW GROUP, P.A.
830 3rd Avenue, 5th Floor
New York, NY 10022
Telephone: (800) 616-4000
Facsimile: (561) 447-8831
MUTUAL SECURITIES: Milliner's Partial Summary Judgment Bid Okayed
-----------------------------------------------------------------
In the case captioned CHARLOTTE B. MILLINER, et al., Plaintiffs,
v. MUTUAL SECURITIES, INC., Defendant, Case No. 15-cv-03354-TEH
(N.D. Cal.), Judge Thelton E. Henderson granted the plaintiffs'
Motion for Partial Summary Judgment Re: Existence of Contractual
Duty to Determine Suitability.
The plaintiffs brought the class action against Mutual Securities,
Inc. (MSI) because of MSI's relationship with Bock Evans Financial
Counsel, Ltd. (BEFC); namely, because "BEFC required that clients
hire Defendant MSI as their custodial and supervising broker-
dealer." According to the plaintiffs, "[o]ne reason that BEFC
requires clients to use MSI is because [Thomas] Bock and [Mary]
Evans, the principal executive officers of BEFC, are also licensed
with and registered principals of MSI." The plaintiffs alleged
that "the value of the BEFC portfolios under MSI's supervision
have gone from $60 million to $4.17 million in just a few years, a
drop of roughly $55.83 million, or 93%."
The crux of the plaintiffs' class action claims against MSI is a
"Brokerage Agreement" that MSI required the plaintiffs to enter
into as clients of BEFC.
The plaintiffs moved for partial summary judgment regarding
whether the quoted language from the Brokerage Agreement (the
"suitability clause") created a duty for MSI: "Plaintiffs seek a
ruling from this Court establishing that Defendant MSI owed
Plaintiffs a contractual duty to 'determine the suitability of any
investment recommendations and advice,' in accordance with the
express terms of their Brokerage Agreement."
Judge Henderson held that there is no genuine dispute of material
fact that, under the suitability clause, "MSI owed Plaintiffs a
contractual duty to 'determine the suitability of any investment
recommendations and advice' in accordance with the express terms
of their Brokerage Agreement."
A full-text copy of Judge Henderson's June 27, 2016 order is
available at https://is.gd/n5mPnb from Leagle.com.
Charlotte B. Milliner, Joanne Brem, Plaintiffs, represented by
Charles David Marshall, Marshall Law Firm & David Sturgeon-Garcia,
The Law Offices of David Sturgeon-Garcia.
Mutual Securities, Inc., Defendant, represented by Timothy W.
Fredricks -- fredricks.t@wssllp.com -- Winget Spadafora &
Schwartzberg LLP, Brandon S. Reif -- reif.b@wssllp.com -- Winget
Spadafora & Schwartzberg LLP, Nazanin Afshar --
afshar.n@wssllp.com -- Winget Spadafora & Schwartzberg LLP &
Shelly C. Yoo, Winget Spadafora & Schwartzberg LLP.
NATERA INC: Motion to Remand Class Actions Pending
--------------------------------------------------
Natera, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on May 13, 2016, for the
quarterly period ended March 31, 2016, that a motion to remand
class action lawsuits to the San Mateo Superior Court is pending.
On February 17, 2016, March 10, 2016, March 28, 2016 and April 4,
2016, four purported class action lawsuits were filed in the
Superior Court of the State of California for the County of San
Mateo (the "San Mateo Superior Court"), against the Company, its
directors and certain of its officers and 5% stockholders and
their affiliates, and each of the underwriters of its July 1, 2015
initial public offering (the "IPO"). The complaints assert claims
under Sections 11, 12(a)(2) and 15 of the Securities Act of 1933,
as amended. The complaints allege, among other things, that the
Registration Statement and Prospectus for the Company's IPO
contained materially false or misleading statements, and/or
omitted material information that was required to be disclosed,
about the Company's business and prospects. Among other relief,
the complaints seek class certification, unspecified compensatory
damages, rescission, attorneys' fees, and costs.
The Company has removed these actions to the United States
District Court for the Northern District of California; a motion
to remand the actions to the San Mateo Superior Court is pending.
The Company intends to defend the matter vigorously, but it cannot
be certain of the outcome.
Natera, Inc. operates a laboratory certified under the Clinical
Laboratory Improvement Amendments ("CLIA") providing a host of
preconception and prenatal genetic testing services.
NATIONAL AUSTRALIA: August 22 Hearing Set in Bill Swap Rate Case
----------------------------------------------------------------
The Australian Financial Review reports that National Australia
Bank has come under fire for failing to produce documents in the
bank bill swap rate case, as the corporate regulator seeks to have
the ANZ case heard as a test case ahead of their claims against
NAB and Westpac.
In the first court hearing in the landmark cases against the three
major banks, the Australian Securities and Investments Commission
told the packed courtroom on June 27 it had served four statutory
notices on NAB seeking documents and telephone conversations about
whether bank employees had been told not to engage in conduct to
influence the benchmark rate.
"[NAB] haven't complied and they are late . . . these practices
have been going on for a long, long time," lawyer for ASIC Noel
Hutley told the court.
But NAB is fighting access by the regulator in the first sign of a
long and protracted legal battle, which has been set down for a
joint case management hearing on August 22 and a tentative trial
date for August next year.
"We have already produced over 10 million documents so far," NAB
barrister David Thomas told the judge.
"The other banks didn't have to provide it . . . it travels beyond
the issues in dispute [and] these are complex and difficult
issues", he said.
In an affidavit of King & Wood Mallesons partner Alexander Morris
-- alexander.morris@au.kwm.com -- on behalf of NAB, the bank
further argue that providing addition documents will slow down the
case.
"NAB produced over 10 million documents in response to ASIC in
response to over 45 compulsory notices issued to it. Part of that
production included complete email boxes for nominated traders and
managers extending from 2008 to 2013 . . .
"The number of current and former NAB employees examined by ASIC
was approximately 30 . . . it is my view that significant
resources within NAB and KWM would be required to be diverted from
the preparation of NAB's defense to the preparation of such
discovery," Mr. Morris argued.
ANZ in firing line
Federal Court judge Jonathan Beach is keen to combine and fast-
track the bank cases -- which may also soon incorporate the CBA
-- and to take a "sample set of transactions and discuss the
issues on principle" in a similar way to the class action cases
over bank fees.
But ASIC have strongly resisted the move, arguing the ANZ case
should be heard first, which some commentators have suggested is
the regulator's strongest case.
"Hearing the ANZ case is likely to lead to the resolution of the
other cases," ASIC lawyer, John Karkar QC, told the court.
But Justice Beach said he would be "surprised if there weren't
common issues across the cases" and even if he determined the ANZ
case the banks were likely to raise new defenses in their own
cases which would further drag out the process.
The banks support the judge's move to combine the cases which will
be decided at the August hearing.
"I notice it is alleged on one day that you [ANZ] had one strategy
and Westpac had the opposite," the judge said.
"At the end of the day I am going to have to solve this problem
the best way I can."
NATIONAL FOOTBALL: Averts Sunday Ticket Class Action
----------------------------------------------------
Mike Florio, writing for Profootballtalk, reports that the
networks that broadcast NFL games will no longer be required to
answer for the way those broadcasts are bundled and sold by the
NFL and DirecTV.
Via the Hollywood Reporter, NBC, CBS, FOX, and ESPN no longer
appear as defendants in a class action that challenges the manner
in which the league and its satellite partner market the NFL
Sunday Ticket product.
This doesn't mean that the networks will be immune from
involvement in the case. For now, though, none of them face
potential financial liability.
The lawsuits began last June, not long after the settlement of a
challenge regarding the NHL's distribution of games via DirecTV.
Within a month, at least three class actions were filed. Now, all
pending lawsuits have been consolidated into one case.
Apparently, the networks were added as some point in order to
prevent consolidation, since the lawyers who filed the individuals
cases presumably didn't want to give up control over their own
litigation. Once those efforts failed, the networks became
unnecessary to the broader attack on the league's exclusive
distribution of out-of-market games through the Sunday Ticket
package.
A key threshold question once the case gets to the substance and
not the procedure will be whether the federal broadcast antitrust
exemption applies to the distribution of out-of-market games. If
it doesn't, the end result of the litigation could be a
requirement that each team be permitted to cut its own deal
regarding the availability of games beyond the traditional
broadcast marketplace, requiring (allowing) teams like the Cowboys
and Packers and Steelers to make a lot more by selling, for
example, streaming rights to their games beyond the markets where
they otherwise are available via over-the-air broadcasts. (The
other side of the coin would be that nationally unpopular teams --
and they know who they are without me listing them -- would make a
lot less.)
If that happens, there would be dramatic changes to the way that
football fans consume games that aren't televised over FCC-
regulated network affiliates in their local areas. If, for
example, a Saints fan only wanted to see Saints games, the Saints
fan would be able to buy the ability to watch all Saints games not
otherwise televised for free in that fan's geographic region. The
price should be a lot less than buying the entire Sunday Ticket
package, which is currently the only way for fans of one team to
see that team's games only.
The end result for the league would be dramatic fluctuations in
the money the various teams make from broadcasting games. Absent
a commitment to share among all 32 teams whatever any of them
earns by selling out-of-market satellite, cable, or streaming
rights on their own, it could create a significant disparity in
revenue between the most and least nationally popular clubs.
NEW MEXICO: Summary Judgment for Education Department Reversed
--------------------------------------------------------------
In the case captioned ZUNI PUBLIC SCHOOL DISTRICT #89, Petitioner-
Appellant, v. STATE OF NEW MEXICO PUBLIC EDUCATION DEPARTMENT and
VERONICA GARCIA, SECRETARY OF EDUCATION, Respondents-Appellees,
No. 34,008 (N.M. Ct. App.), the Court of Appeals of New Mexico
reversed the district court's ruling which granted summary
judgment in favor of the New Mexico Public Education Department.
Zuni Public School District #89 filed a petition in the district
court alleging in material part that in the 2009-2010 school year,
the Department made a deduction for federal impact aid funds it
anticipated that Zuni was going to receive from funds it was
otherwise entitled to under the Public School Finance Act; that
making such a deduction before federal impact aid funds were
received violated the Act; that as to federal impact aid funds
actually received, the Act allows a deduction of federal impact
aid funds only if the funds are authorized "in accordance with"
federal law; that under federal law a deduction is only allowed
after the Secretary of the United States Department of Education
(DOE) certifies that a state has a school funding system that
satisfies federal standards to equalize expenditures for free
public education among local school districts; and that, in
violation of the Act, the Department deducted Zuni's share of
school funding before the DOE Secretary issued its certificate.
Zuni asked for a writ of mandamus, declaratory relief, injunctive
relief, and class action certification for other school districts
who received such deductions.
The parties filed cross motions for summary judgment in the
district court. The district court found that there was no
dispute of material fact and concluded that the Department
properly deducted federal impact aid funds it anticipated Zuni
would receive. The district court also concluded that the
Department properly made deductions for federal impact aid funds
that Zuni actually received, although the deductions were made
before the DOE Secretary certified that a deduction was
permissible. The district court therefore granted summary
judgment in favor of the Department.
The Court of Appeals of New Mexico, however, concluded that the
deductions made by the Department in this case were not authorized
by the Act. Thus, the order of the district court granting
summary judgment to the Department was reversed and the case was
remanded for further proceedings.
A full-text copy of the appellate court's June 27, 2016 opinion is
available at https://is.gd/vGmj8g from Leagle.com.
VanAmberg, Rogers, Yepa, Abeita, Gomez, & Works, L.L.P., Ronald J.
VanAmberg, C. Bryant Rogers, Santa Fe, NM, for Appellant.
Public Education Department, Albert V. Gonzales , Deputy General
Counsel, Santa Fe, NM, Sutin, Thayer, & Browne, P.C., Susan M.
Hapka -- smh@sutinfirm.com -- Albuquerque, NM, for Appellees.
NEW YORK: Muslim Police Officers File Class Action Over Beard Ban
-----------------------------------------------------------------
Chris Fuchs, writing for NBC News, reports that a Muslim police
officer is suing the New York Police Department (NYPD) to stop
enforcement of what he says is an unconstitutional policy banning
officers from having beards.
Masood Syed, who works as a law clerk for the NYPD's Deputy
Commissioner of Trials, said he's had a half-inch to one-inch
beard throughout his ten-year police career, according to a class-
action lawsuit filed on June 22 in U.S. District Court in
Manhattan.
But on June 21, Mr. Syed's supervisor at Police Headquarters
suspended the 32-year-old without pay after he refused to trim his
beard, which he keeps as a Sunni Muslim, his lawsuit said. The day
before, he was told in writing to grow it no longer than one
millimeter, court papers said, or roughly .04 inches.
The NYPD prohibits beards of any length, though unwritten policy
permits them up to one millimeter in length for religious
accommodations, Mr. Syed's lawsuit said. Mr. Syed, who is also a
lawyer, claims many NYPD officers have beards longer than that,
according to court documents.
At an emergency hearing in Manhattan on June 22, Judge Kevin
Castel ordered the NYPD to continue paying Mr. Syed's salary and
benefits at least until July 8, Mr. Syed's attorney Joshua S.
Moskovitz told NBC News. That's when a preliminary injunction
hearing will be held to decide if Mr. Syed is likely to succeed in
his claim that the NYPD's no-beard policy violates the First
Amendment, Mr. Moskovitz said.
If Mr. Syed is successful, a judge could temporarily halt the NYPD
from enforcing the ban or require the department to adopt some
other interim policy as the case moves forward,
Mr. Moskovitz said.
The city Law Department, which handles litigation against
New York City government agencies, did not immediately return a
request for comment.
On June 21, Mr. Syed's supervisor told him to report to the I.D.
Unit to have a photo taken for a new identification card, his
lawsuit alleges. In November, Police Commissioner William Bratton
implemented new security procedures and required all NYPD officers
to receive updated I.D. cards, the lawsuit said.
Mr. Syed alleges the I.D. Unit has refused to take photos or issue
new I.D. cards for officers with beards in excess of one
millimeter, his lawsuit said.
A sergeant assigned to the I.D. Unit asked Mr. Syed for a
religious accommodation letter for his beard, which he filed for
in December, according to court documents. But because the letter
was still pending, the sergeant contacted Mr. Syed's supervisor,
who then allegedly instructed Mr. Syed to shave his beard
entirely, the lawsuit said.
When Mr. Syed refused, his supervisor immediately suspended him
for 30 days, took his gun and badge, and had him escorted from One
Police Plaza, court papers said.
Mr. Syed, a Pakistani American, received a medical accommodation
for his beard after joining the NYPD in 2006 and a religious
accommodation two years later, his lawsuit said. Looking to avoid
any trouble, he also signed a required document in 2011, saying he
would keep his beard no longer than one millimeter, even though
other officers had beards that were longer, according to court
papers.
For four years, Mr. Syed continued wearing his beard a half-inch
to one-inch in length, his lawsuit said. August last year was the
first time a supervisor told Mr. Syed he was out of compliance
with NYPD policy, court papers allege.
This isn't the first time an NYPD officer has sued the department
over its no-beard policy. In 2012, the NYPD fired probationary
officer Fishel Litzman for refusing to shave his one-inch beard he
kept as a member of the Chabad Lubavitch Jewish Community, court
papers said.
Mr. Litzman filed a federal lawsuit, arguing that the NYPD had
violated his First Amendment rights. The department countered
that Mr. Litzman could not keep the beard because new officers
must shave at least once a year for certification on an MSA
millennium model respirator, according to Mr. Syed's lawsuit.
But U.S. District Court Judge Harold Baer ruled in 2013 that the
policy violated Mr. Litzman's right to practice his religion and
said the department's ban on beards wasn't enforced uniformly,
court papers said. Mr. Litzman was given back his job and
continues to work for the NYPD with a one-inch beard allowed under
a religious accommodation, Mr. Syed's lawsuit said.
Mr. Moskovitz, Mr. Syed's attorney, said he doesn't think he'll
have difficulty showing that the NYPD allegedly violated
Mr. Syed's First Amendment rights.
"This case has been litigated already, which is part of what I
find the most troubling about the NYPD's conduct here," he said.
In addition to a judgment declaring the NYPD's no-beard policy
unconstitutional, Mr. Syed is seeking unspecified compensatory and
punitive damages, according to his lawsuit.
NEW YORK: Sex Offenders File Class Action Over City Shelters
------------------------------------------------------------
Corinne Ramey, writing for The Wall Street Journal, reports that
the New York state enacted its Sexual Assault Reform Act 16 years
ago. At the time, Gov. George E. Pataki, a Republican, hailed it
as a "historic weapon" to protect New Yorkers from sexual
predators.
In the past few years, the push to keep tabs on sex offenders has
continued. In 2014, the state corrections department stopped
sending offenders to shelters within 1,000 feet of school grounds
because of political pressure.
"In many cases, they're not cured, and in some cases they commit
crimes against children," said state Sen. Jeffrey Klein, a
Democrat who has released reports on sex offenders living near
schools and in shelters.
Betty Braton has fought for years against sex offenders at a
shelter in her part of Queens. "In most communities they prefer
no sex offenders anywhere, but to have them all consolidated at
one address is problematic for a community," said Ms. Braton,
chairwoman of Queens Community Board 10.
The upshot for both New York and the city is that housing sex
offenders has become even more complicated. In the past few
years, the already limited options for sex offenders have shrunk
as more city shelters have been deemed off limits. About 100 sex
offenders who have completed their sentences are being kept in
prison, according to a class-action lawsuit against the
corrections department and the agency that manages city shelters.
According to the lawsuit, filed in May in state Supreme Court in
Albany, the state Department of Corrections and Community
Supervision is illegally incarcerating those whose sentences are
complete, and the city, which is obligated by law to provide
shelter, isn't making shelter beds available.
Some of the people being held past their sentences are plaintiffs
in the lawsuit, which was brought by private firm Willkie Farr &
Gallagher LLP and public-defender groups the Legal Aid Society and
Prisoners' Legal Services of New York. Oral arguments are
scheduled for August.
A state corrections department spokesman declined to comment
because of the pending litigation. A spokesman for the city Law
Department said the complaint is under review.
When released from prison, a parolee typically gives an address
that must be approved by the corrections department; state law
stipulates certain sex offenders aren't allowed within 1,000 feet
of school grounds.
"What the law does is render many people homeless," said
Wesley Caines, re-entry coordinator at Brooklyn Defender Services,
a public-defender organization.
Until the 2014 policy change, the corrections department directed
sex offenders to city shelters. "The fallout . . . was swift and
severe," the complaint says.
The switch quickly created a backlog of offenders, some of whom
are in sections of prisons that have been renamed residential
treatment centers but operate as prisons, the complaint says.
Given the laws, the corrections department and the shelter system
are left with few options. "They are between a rock and a hard
place in terms of what their options are," said JoAnne Page,
president and chief executive of re-entry organization the Fortune
Society.
Cities and states nationwide have passed laws much like
New York's that restrict where some sex offenders can live. Some
say these laws make it nearly impossible for sex offenders to be
reintegrated into society and note research has shown residency
restrictions don't deter them from committing another crime.
"Sex offenders are among the people we fear the most, yet we've
created a scenario in which it's almost impossible for them to
become normative," said David D'Amora, a senior adviser at the
Council of State Governments Justice Center, a policy-research
nonprofit.
NEWPARK RESOURCES: Settlement Reached in Wage and Hour Suit
-----------------------------------------------------------
Newpark Resources, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on May 13, 2016, for the
quarterly period ended March 31, 2016, that the company has
reached a settlement of a wage and hour litigation.
The Company said, "During the second quarter of 2014, a lawsuit
was filed by Jesse Davida, a former employee, in Federal Court in
Texas against Newpark Drilling Fluids LLC, alleging violations of
the Fair Labor Standards Act ("FLSA"). The plaintiff seeks damages
and penalties for the Company's alleged failure to properly
classify its field service employees as "non-exempt" under the
FLSA and pay them on an hourly basis (including overtime). The
plaintiff seeks recovery on his own behalf, and seeks
certification of a class of similarly situated employees. The
Court conditionally certified a class of plaintiffs as those
working as fluid service technicians for Newpark Drilling Fluids
for the prior three years. Notification was given to 658 current
and former fluid service technician employees of Newpark regarding
this litigation and those individuals were given the opportunity
to "opt-in" to the Davida litigation. The opt-in period closed in
early May of 2015 and a total of 91 individuals joined the Davida
litigation. Counsel for the plaintiffs' moved to add state law
class action claims for current and former fluid service
technicians that worked for Newpark Drilling Fluids in New York,
North Dakota, Ohio and Pennsylvania. The Court granted the motion
but gave Newpark the right to file a motion to dismiss these state
law claims, and that motion is pending. At this point in the
litigation, the parties began settlement discussions, resulting in
the settlement agreement."
"A second case was filed by Josh Christensen in the fourth quarter
of 2014 in Federal Court in Texas alleging that individuals
treated as independent contractors should have been classified as
employees and, as such, are entitled to assert claims for alleged
violations of the FLSA (similar to the claims asserted in the
Davida matter). Five additional plaintiffs joined this litigation
after it was filed. In March of 2015, the Court denied the
plaintiffs' motion for conditional class certification. Counsel
for the plaintiffs did not appeal that ruling and have now filed
individual cases for each of the original opt-in plaintiffs plus
two new plaintiffs, leaving a total of eight independent
contractor cases pending. These cases are included in the
settlement discussions.
"In the fourth quarter of 2015, the same counsel representing the
plaintiffs in the Davida and Christiansen-related cases filed two
additional individual FLSA cases on behalf of former fluid service
technician employees. These cases are similar in nature to the
Davida case discussed and are included in the settlement
discussions.
"Beginning in November 2015, we engaged in settlement discussions
with counsel for the plaintiffs in the pending wage and hour
litigation cases described. Following mediation in January of
2016, the parties executed a settlement agreement in April 2016 to
settle all of the pending matters, subject to a number of
conditions, including approval by the Court in the Davida case,
and the dismissal of the other FLSA cases (Christiansen-related
lawsuits and individual FLSA cases). Subject to these conditions,
current and former fluid service technician employees that are
eligible for the settlement will be notified of the pending
resolution and given an opportunity to participate in the
settlement. The amount paid to any eligible individual will vary
based on a formula that takes into account the number of workweeks
and salary for the individual during the time period covered by
the settlement (which can vary based upon several factors). Any
eligible individual that elects to participate in the settlement
will release all wage and hour claims against the Company.
"As a result of the settlement negotiations, we recognized a $5.0
million charge in the fourth quarter of 2015 related to the
pending resolution of these wage and hour litigation claims. We
expect to fund the settlement amount with installment payments in
the second and third quarters of 2016, subject to the conditions
described.
"The settlement fund will be administered by a third party who
will make payments to eligible individuals that elect to
participate in accordance with a formula incorporated into the
settlement agreement. In addition, under the terms of the
settlement agreement, if settlement funds remain after all
payments are made to eligible individuals that elect to
participate in the settlement, such excess amount will be shared
by the participating individuals and Newpark Drilling Fluids. The
amount of excess funds, if any, is not currently determinable."
PARAMOUNT EQUITY: Faces TCPA Class Action in California
-------------------------------------------------------
Wadi Reformado, writing for Northern California Record, reports
that a Sacramento woman has filed a class-action suit against a
residential mortgage lending company alleging that it contacted
her in an attempt to solicit its services.
Susan Hayes filed a complaint on behalf of all others similarly
situated on June 22 in the U.S. District Court for the Eastern
District of California against Paramount Equity Mortgage LLC and
Does 1 through 10 alleging violation of the Telephone Consumer
Protection Act.
According to the complaint, the plaintiff alleges that in
September 2015, she was called by the defendant on her home
telephone despite her requests for it to stop calling her. The
plaintiff holds Paramount Equity Mortgage LLC and Does 1 through
10 responsible because the defendants allegedly repeatedly called
plaintiff despite the fact that her number is listed on the
National Do-Not-Call Registry.
The plaintiff requests a trial by jury and seeks $500 in statutory
damages for each violation, $1,500 in treble damages for each
violation, and any other relief as the court deems just. She is
represented by Todd M. Friedman, Adrian R. Bacon and Meghan E.
George of Law Offices of Todd M. Friedman PC in Beverly Hills.
U.S. District Court for the Eastern District of California Case
number 2:16-cv-01415-JAM-EFB
PARTY CITY HOLDCO: New York Class Suit Remains Pending
------------------------------------------------------
Party City Holdco Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on May 13, 2016, for the
quarterly period ended March 31, 2016, that the Company intends to
vigorously defend itself against a class action lawsuit in New
York.
On November 18, 2015, a putative class action complaint was filed
in the U.S. District Court for the Southern District of New York,
naming Party City Holdco Inc. and certain executives as
defendants. An Amended Complaint was filed on April 25, 2016,
which named additional defendants. The Amended Complaint alleges
violations of Sections 11, 12(a)(2), and 15 of the Securities Act
of 1933 in connection with public filings related to the Company's
April 2015 initial public offering ("IPO"). The plaintiff seeks to
represent a class of shareholders who purchased stock in the
initial public offering or who can trace their shares to that
offering. The complaint seeks unspecified damages and costs.
The Company intends to vigorously defend itself against this
action. The Company is unable, at this time, to determine whether
the outcome of the litigation would have a material impact on its
results of operations, financial condition or cash flows.
Party City Holdco Inc. designs, manufactures, sources and
distributes party goods, including paper and plastic tableware,
metallic and latex balloons, Halloween and other costumes,
accessories, novelties, gifts and stationery throughout the world.
PETSMART INC: Loomis Appeals From Ruling in "Moore" Class Suit
--------------------------------------------------------------
Objector Lindsey Loomis filed an appeal from a court ruling in a
case against PetSmart, Inc.. The original case was filed in the
California Superior Court for the County of Alameda and was
removed to the District Court on July 9, 2012. The case is styled
Danette Moore, et al. v. PetSmart, Inc., Case No. 5:12-cv-03577-
EJD, in the U.S. District Court for Northern California, San Jose.
As reported in the Class Action Reporter, the complaint brought
both individual and class action claims, first alleging that
PetSmart failed to engage in the interactive process and failed to
accommodate the disabilities of four current and former named
associates. The complaint also alleged on behalf of current and
former hourly store associates that PetSmart failed to provide pay
for all hours worked, failed to properly reimburse associates for
business expenses, failed to properly calculate and pay vacation,
failed to provide suitable seating, and failed to provide timely
and uninterrupted meal and rest periods.
The appellate case is captioned as Danette Moore, et al. v.
Petsmart, Inc., Case No. 16-16124, in the United States Court of
Appeals for the Ninth Circuit.
Plaintiffs-Appellees Danette M. Moore, Alanna Harrison, Alisa
Valdez and Latresa Myers are represented by:
Graham S.P. Hollis, Esq.
Marta Manus, Esq.
GRAHAMHOLLIS APC
3555 Fifth Avenue
San Diego, CA 92103
Telephone: (619) 692-0800
E-mail: ghollis@grahamhollis.com
mmanus@grahamhollis.com
Objector-Appellant Lindsey Loomis is represented by:
Burke L. Huber, Esq.
BURKE L. HUBER, ATTORNEY AT LAW
8486 Sunset Rose Drive
Corona, CA 92883
Telephone: (714) 596-7944
E-mail: burkehuber@gmail.com
Defendant-Appellee PetSmart, Inc., is represented by:
Carrie A. Gonell, Esq.
Bryan Jarrett, Esq.
MORGAN, LEWIS & BOCKIUS LLP
600 Anton Boulevard, Suite 1800
Costa Mesa, CA 92626
Telephone: (714) 830-0600
Facsimile: (212) 752-5378
E-mail: carrie.gonell@morganlewis.com
bryan.jarrett@morganlewis.com
PHOTOMEDEX INC: Motion to Remove "Cantley" Case Stayed
------------------------------------------------------
Photomedex, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on May 13, 2016, for the
quarterly period ended March 31, 2016, that the Company's Motion
to Remove the Cantley case has been stayed pending resolution of
the Mouzon litigation.
On June 30, 2014, the Company's subsidiary, Radiancy, Inc., was
served with a class action lawsuit filed in the Superior Court in
the State of California, County of Kern. The suit was filed by
April Cantley, who purchased Radiancy's no!no! hair products. It
alleges various violations of state business and consumer
protection codes including false and misleading advertising,
breach of express and implied warranties and breach of the
California Legal Remedies Act. The complaint seeks certification
of the class, which consists of customers in the State of
California who purchased the no!no! hair devices. The complaint
also seeks an unspecified amount of monetary damages, pre-and
post-judgment interest and attorneys' fees, expert witness fees
and other costs.
Radiancy has filed an Answer to this Complaint; the case is now in
the discovery phase.
On October 30, 2015, Radiancy filed to remove this action to the
United States District Court for the Southern District of
California; as a result of that filing, all discovery in this case
has now been stayed. That removal was granted, and the Company has
now filed to remove this case to the U.S. District Court for the
District of Columbia, the district with jurisdiction over Jan
Mouzon v. Radiancy, Inc. and Dolev Rafaeli, President.
The suit was filed by Jan Mouzon and twelve other customers
residing in ten different states, including California, who
purchased Radiancy's no!no! hair products and alleges various
violations of state business and consumer protection codes
including false and misleading advertising, unfair trade
practices, and breach of express and implied warranties. The
complaint seeks certification of the putative class, or,
alternatively, certification as subclasses of plaintiffs residing
in those specific states.
The Company's Motion to Remove the Cantley case has been stayed
pending resolution of the Mouzon litigation. Radiancy and its
officers intend to vigorously defend themselves against this
lawsuit. Discovery has now commenced in this action.
At this time, the amount of any loss, or range of loss, cannot be
reasonably estimated as the case has only been initiated and no
discovery has been conducted to determine the validity of any
claim or claims made by plaintiffs. Therefore, the Company has not
recorded any reserve or contingent liability related to these
particular legal matters. However, in the future, as the cases
progress, the Company may be required to record a contingent
liability or reserve for these matters.
PORTFOLIO RECOVERY: Appeal Filed From Ruling in "Ciganek" Suit
--------------------------------------------------------------
Plaintiff William Ciganek, Jr., on behalf of himself and all
others similarly situated, filed an appeal from a court ruling in
the lawsuit titled William Ciganek, Jr. v. Portfolio Recovery
Associates, et al., Case No. 5:15-cv-03837-LHK, in the U.S.
District Court for Northern District of California, San Jose.
As reported in the Class Action Reporter on Jun 21, 2016, Judge
Lucy H. Koh granted the motion for summary judgment filed by the
defendants Portfolio Recovery Associates, LLC (PRA), Hunt &
Henriques, Michael Scott Hunt, and Janalie Ann Henriques.
The putative class action case was brought by William Ciganek,
Jr., for violation of the Fair Debt Collection Practices Act.
Judge Koh, however, found that the Defendants' use of the Marin
Declaration did not violate the FDCPA. The Marin Declaration
described Ciganek's unpaid credit account and was signed by PRA
employee Maria Marin.
A full-text copy of Judge Koh's June 7, 2016 order is available at
https://is.gd/PV1bao from Leagle.com.
The appellate case is captioned as William Ciganek, Jr. v.
Portfolio Recovery Associates, et al., Case No. 16-16120, in the
United States Court of Appeals for the Ninth Circuit.
The Plaintiff-Appellant is represented by:
Raeon R. Roulston, Esq.
Fred W. Schwinn, Esq.
CONSUMER LAW CENTER, INC.
12 South First Street
San Jose, CA 95113-2404
Telephone: (408) 294-6100
Facsimile: (408) 294-6190
Defendants-Appellees Portfolio Recovery Associates, LLC, Hunt &
Henriques, Michael Scott Hunt and Janalie Ann Henriques are
represented by:
Tomio Buck Narita, Esq.
Jeffrey Topor, Esq.
SIMMONDS & NARITA, LLP
44 Montgomery St.
San Francisco, CA 94104
Telephone: (415) 283-1010
Facsimile: (415) 352-2625
E-mail: tnarita@snllp.com
jtopor@snllp.com
PROCTER & GAMBLE: "Brenner" Sues Over Toxic Wipes
-------------------------------------------------
Veronica Brenner, on behalf of herself and all others similarly
situated, Plaintiff, v. Procter & Gamble Co., Defendant, Case No.
8:16-cv-01093 (C.D. Cal., June 13, 2016), seeks to recover
compensatory, statutory, and punitive damages, injunctive relief,
prejudgment interest and reasonable attorney fees and expenses for
violation of the California Consumers Legal Remedies Act,
California's False Advertising Law, California's Unfair
Competition Law. The lawsuit further asserts unjust enrichment and
breach of express warranty.
Procter & Gamble Co. is incorporated in the State of Ohio, with
principal place of business at One Procter & Gamble Plaza
Cincinnati, Ohio 45202. It manufactures, markets, and distributes
Pampers Natural Wipes throughout California and the United States.
Plaintiff alleges Wipes are not natural because they contain an
unnatural and potentially harmful ingredient called
phenoxyethanol, which can depress the central nervous system and
may cause vomiting and diarrhea, which can lead to dehydration in
infants.
The Defendants are represented by:
L. Timothy Fisher, Esq.
BURSOR & FISHER, P.A.
1990 North California Blvd., Suite 940
Walnut Creek, CA 94596
Telephone: (925) 300-4455
Facsimile: (925) 407-2700
E-Mail: ltfisher@bursor.com
- and -
Scott A. Bursor, Esq.
BURSOR & FISHER, P.A.
888 Seventh Avenue
New York, NY 10019
Telephone: (212) 989-9113
Facsimile: (212) 989-9163
E-Mail: scott@bursor.com
QBE NORTH AMERICA: "Colon" Suit to Recover Overtime Pay
-------------------------------------------------------
David Colon, individually and on behalf of all others similarly
situated, Plaintiff, v. QBE North America and Aerotek, Inc.,
Defendants, Case No. 2:16-cv-01900 (D. Ariz., June 13, 2016),
seeks compensatory and liquidated damages, including all wages and
overtime pay owed, costs and reasonable attorney fees and such
further relief under the Fair Labor Standards Act.
QBE North America is a division of QBE Insurance Group and
operates a telephone call center on Frye Road in Chandler,
Arizona, handling phone calls regarding insurance coverage,
billing, and policy related questions. David Colon worked as an
Insurance Customer Service Representative in a call center
operated by QBE located at 2700 West Frye Road in Chandler,
Arizona. He claims to be denied overtime pay.
Plaintiff is represented by:
James X. Bormes, Esq.
LAW OFFICE OF JAMES X. BORMES, P.C.
8 South Michigan Avenue, Suite 2600
Chicago, IL 60603
Tel: (312) 201-0575
Email: jxbormes@bormeslaw.com
- and -
Thomas M. Ryan, Esq.
LAW OFFICE OF THOMAS M. RYAN, P.C.
35 East Wacker Drive, Suite 650
Chicago, IL 60601
Tel: (312) 726-3400
Email: Tom@tomryanlaw.com
- and -
Michelle R. Matheson, Esq.
MATHESON & MATHESON, P.L.C.
15300 North 90th Street, Suite 550
Scottsdale, AZ 85260
Tel: (480) 889-8951
Email: mmatheson@mathesonlegal.com
ROGERS: Voltage Pictures File Reverse Privacy Class Action
----------------------------------------------------------
Michael Geist, writing for The Star, reports that Voltage Pictures
asked the court to order Rogers to disclose the identity of one of
its subscribers in a reverse class-action lawsuit.
The centrepiece of Canada's 2012 digital copyright reforms was the
legal implementation of the "notice-and-notice" system that seeks
to balance the interests of copyright holders, the privacy rights
of Internet users and the legal obligations of Internet service
providers (ISPs).
The law makes it easy for copyright owners to send infringement
notices to ISPs, who are legally required to forward the
notifications to their subscribers. The personal information of
subscribers is not disclosed to the copyright owner.
Despite the promise of the notice-and-notice system, it has been
misused virtually from the moment it took effect, with copyright
owners exploiting a loophole in the law by sending settlement
demands within the notices.
The government has tried to warn recipients that they need not
settle -- the Office of Consumer Affairs advises that there are no
obligations on a subscriber that receives a notice and that
getting a notice does not necessarily mean you will be sued -- yet
many subscribers panic when they receive notifications and
promptly pay hundreds or thousands of dollars.
While the government has been slow to implement an easy fix for
the problem in the form of regulations prohibiting the inclusion
of settlement demands within the notices, another issue looms on
the legal horizon that could eviscerate the privacy protections
associated with the system.
Earlier this year, Voltage Pictures, which previously engaged in a
lengthy court battle to require Canadian ISPs to disclose the
names of alleged file sharers, adopted a new legal strategy. While
the company obtained an order to disclose names in the earlier
case, it came with conditions and costs. Its latest approach
involves filing a reverse class action lawsuit against an unknown
number of alleged uploaders of five of its movies.
The Voltage filing seeks certification of the class, a declaration
that each member of the class has infringed its copyright, an
injunction stopping further infringement, damages and costs of the
legal proceedings. Voltage, which produced such award-winning
movies as The Hurt Locker and Dallas Buyers Club, names as its
representative respondent an unknown uploader -- John Doe -- who
is linked to a Rogers IP address. It admits that it does not know
the names or identifies of any members of its proposed class, but
seeks to group anyone in Canada who infringed its copyright.
Class-action experts were puzzled by the lawsuit, questioning
whether a reverse class action (which features a single plaintiff
and multiple defendants) could be used to target copyright
infringement. Class actions typically involve multiple plaintiffs
(often consumers) and one defendant.
The full implications of the strategy began to emerge in recent
weeks as Voltage asked the court to order Rogers to disclose the
identity of its John Doe.
Rogers is contesting the request with a spokesperson stating that
"we protect our customers' privacy and we will not share their
personal information without their permission, or a court order.
We require those safeguards to deter improper or overreaching
requests for disclosure."
That is important because Voltage is using the notice-and-notice
system to argue that it is entitled to subscriber information. It
argues in court documents that the system is designed to allow
copyright holders to "inexpensively identify and locate the
infringers of copyright."
Yet the reality is that the government did not intend for the
rules to make it easy to disclose the identity of alleged
infringers, with the ISPs prohibited from simply handing over such
information.
Canadian courts have established rules that may compel ISPs to
hand over subscriber information, but there are strict limitations
in how the information can be used and restrictions on public
disclosure.
Voltage envisions using the personal information of a single
random person as the lead name in a high-profile class-action
lawsuit, a much more intrusive use of the information with far-
reaching implications for the affected individual.
If Voltage succeeds in the case, which should be dealt with this
year, one of the last remaining benefits of an already imperfect
system will be lost and with it, further erosion of Internet
privacy in Canada.
SANTANDER HOLDINGS: Motion to Dismiss Class Suit Pending
--------------------------------------------------------
Santander Holdings Usa, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on May 13, 2016, for
the quarterly period ended March 31, 2016, that Santander Consumer
USA Holdings Inc. and the individual defendants have moved to
dismiss an amended class action complaint.
On August 26, 2014, a purported securities class action lawsuit
was filed in the United States District Court, Southern District
of New York, captioned Steck v. Santander Consumer USA Holdings
Inc. et al., No. 1:14-cv-06942 (the "Deka Lawsuit"). On October 6,
2014, another purported securities class action lawsuit was filed
in the District Court of Dallas County, State of Texas, captioned
Kumar v. Santander Consumer USA Holdings, et al., No. DC-14-11783,
which was subsequently removed to the United States District
Court, Northern District of Texas and re-captioned Kumar v.
Santander Consumer USA Holdings, et al., No. 3:14-CV-3746 (the
"Kumar Lawsuit").
Both the Deka Lawsuit and the Kumar Lawsuit were brought against
SC, certain of its current and former directors and executive
officers and certain institutions that served as underwriters in
SC's IPO on behalf of a class consisting of those who purchased or
otherwise acquired securities between January 23, 2014 and June
12, 2014.
In February 2015, the Kumar Lawsuit was voluntarily dismissed with
prejudice. In June 2015, the venue of the Deka Lawsuit was
transferred to the United States District Court, Northern District
of Texas. In September 2015, the court granted a motion to appoint
lead plaintiffs and lead counsel, and the Deka Lawsuit is now
captioned Deka Investment GmbH et al. v. Santander Consumer USA
Holdings Inc. et al., No. 3:15-cv-2129-K. The amended class action
complaint in the Deka Lawsuit alleges that that SC's registration
statement and prospectus and certain subsequent public disclosures
contained misleading statements concerning SC's ability to pay
dividends and the adequacy of SC's compliance systems and
oversight. The amended complaint asserts claims under Sections 11,
12(a) and 15 of the Securities Act of 1933 and under Sections
10(b) and 20(a) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and Rule 10b-5 promulgated thereunder, and
seeks damages and other relief. On December 18, 2015, SC and the
individual defendants moved to dismiss the amended class action
complaint.
No further updates were provided in the Company's SEC report.
Santander Holdings USA, Inc. ("SHUSA") is the parent company (the
"Parent Company") of Santander Bank, National Association, (the
"Bank" or "SBNA"), a national banking association, and Santander
Consumer USA Holdings Inc. (together with its subsidiaries, "SC"),
a consumer finance company focused on vehicle finance. SHUSA is
headquartered in Boston, Massachusetts and the Bank's main office
is in Wilmington, Delaware. SHUSA is a wholly-owned subsidiary of
Banco Santander, S.A. ("Santander").
SANTANDER HOLDINGS: Defending Against Parmelee and Benson Suits
---------------------------------------------------------------
Santander Holdings Usa, Inc. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on May 13, 2016, for
the quarterly period ended March 31, 2016, that the Company is
defending against the Parmelee and the Benson lawsuits.
On March 18, 2016, a purported securities class action lawsuit was
filed in the United States District Court, Northern District of
Texas, captioned Parmelee v. Santander Consumer USA Holdings Inc.
et al., No. 3:16-cv-783 (the "Parmelee Lawsuit"). On April 4,
2016, another purported securities class action lawsuit was filed
in the United States District Court, Northern District of Texas,
captioned Benson v. Santander Consumer USA Holdings Inc. et al.,
No. 3:16-cv-919 (the "Benson Lawsuit").
Both the Parmelee Lawsuit and the Benson Lawsuit were filed
against SC and certain of its current and former directors and
executive officers on behalf of a class consisting of all those
who purchased or otherwise acquired SC's securities between
February 3, 2015 and March 15, 2016.
The complaints in the Parmelee Lawsuit and Benson Lawsuit allege
that SC made false or misleading statements, as well as failed to
disclose material adverse facts as disclosed in prior annual and
quarterly reports filed under the Exchange Act and certain other
public disclosures, in connection with SC's change in its
methodology for estimating its ACL and correction of such
allowance for prior periods in SC's Annual Report on Form 10-K for
the year ended December 31, 2015. The complaints assert claims
under Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5
promulgated thereunder, and seek damages and other relief.
No further updates were provided in the Company's SEC report.
Santander Holdings USA, Inc. ("SHUSA") is the parent company (the
"Parent Company") of Santander Bank, National Association, (the
"Bank" or "SBNA"), a national banking association, and Santander
Consumer USA Holdings Inc. (together with its subsidiaries, "SC"),
a consumer finance company focused on vehicle finance. SHUSA is
headquartered in Boston, Massachusetts and the Bank's main office
is in Wilmington, Delaware. SHUSA is a wholly-owned subsidiary of
Banco Santander, S.A. ("Santander").
SAVEOLOGY.COM LLC: Court Rules on Competing Discovery Motions
-------------------------------------------------------------
In the case, GEORGE STOBA, and DAPHNE STOBA, on behalf of
themselves and others similarly situated, Plaintiffs, v.
SAVEOLOGY.COM, LLC, et al., Defendants, Case No. 13cv2925 BAS
(NLS), (S.D. Cal.), District Judge Nita L. Stormes granted
defendants' request to require witnesses to appear at depositions
and denied plaintiffs' request to conduct further discovery
concerning violations of the California Invasion of Privacy Act.
The court allowed defendants' request for depositions insofar as
the plaintiffs' three identified expert witnesses are concerned,
but forbids deposing plaintiffs' fourth witness due to plaintiffs'
offer to withdraw witness' declaration.
Judge Stormes ruled plaintiffs' request for discovery as improper
for two reasons: (1) that they filed it ex parte with no meet and
confer and no prior notice to defendants; and (2) that it seeks
discovery that is not relevant to class certification.
The court has conferred with Judge Bashant's chambers, and
confirms that defendants' opposition deadline for the class
certification motion is continued for two weeks until July 22,
2016. The deadline for Plaintiffs to file the reply is August 5,
2016.
A copy of the court's order dated June 3, 2016, is available at
http://goo.gl/UdJh4Dfrom Leagle.com.
George Stoba, et al., Plaintiffs, represented by Christina E
Wickman -- Christina@wickmanlaw.com -- Wickman & Wickman,
Attorneys at Law, Patrick N. Keegan -- pkeegan@keeganbaker.com --
Keegan & Baker, LLP & Steven Allen Wickman -- Steve@wickmanlaw.com
-- Wickman and Wickman
Saveology.com, LLC, et al., Defendants, represented by Bryan A
Merryman -- bmerryman@whitecase.com -- White and Case LLP, Rachel
J. Feldman -- rfeldman@whitecase.com -- White & Case LLP & Karen
Roche -- karen.roche@whitecase.com -- White & Case LLP.
SINGING RIVER: Settlement in "Jones" Case Granted Final Okay
------------------------------------------------------------
In the case, THOMAS JONES, et al., Plaintiffs, v. SINGING RIVER
HEALTH SERVICES FOUNDATION, et al., Defendants, Case No.
1:14cv447-LG-RHW, Consolidated with 1:15cv1-LG-RHW, No. 1:15cv44-
LG-RHW (S.D. Miss.), Chief District Judge Louis Guirola, Jr.
approved plaintiffs' motion for final approval of class action
settlement, including attorneys' fees, expenses, and incentive
fees. The adjudged settlement came after a two-day Final Fairness
Hearing on May 16-17, 2016.
The notice procedure of the Settlement Class Members provides the
basis for the court to approve the settlement, as it satisfied the
requirements of the law and due process.
The court held that all claims, rights and causes of action,
damages, losses, liabilities and demands asserted by the trust or
any plaintiffs or any members of the settlement class relating to
the failure to fund the trust and/or management or administration
of the plan shall be compromised, settled, released and discharged
with prejudice.
The court has the continuing authority and exclusive jurisdiction
over implementation of the settlement, and over enforcement,
construction, interpretation of the stipulation, and the payment
of legal costs, to the Jackson County Chancery Court in Case No.
2015-0060-NH.
Plaintiffs' claims against KPMG, LLP, and Transamerica Retirement
Solutions Corporation shall remain pending.
A copy of the court's judgment dated June 28, 2016, is available
at http://goo.gl/kAEz8Ffrom Leagle.com.
Transamerica Retirement Solutions Corporation, Defendant,
represented by Marianne Hogan -- marianne.hogan@morganlewis.com
-- MORGAN, LEWIS & BOCKIUS, LLP, pro hac vice, William J. Delany
-- william.delany@morganlewis.com -- MORGAN, LEWIS & BOCKIUS, LLP,
pro hac vice & Ashley Eley Cannady -- acannady@balch.com -- BALCH
& BINGHAM, LLP.
KPMG, LLP, Defendant, represented by Amelia Toy Rudolph --
amelia.rudolph@sutherland.com -- SOUTHERLAND, ASBILL & BRENNAN,
LLP, pro hac vice, Patricia Anne Gorham --
patricia.gorham@sutherland.com -- SUTHERLAND, ASBILL & BRENNAN,
LLP, pro hac vice, R. David Kaufman -- dkaufman@brunini.com --
BRUNINI, GRANTHAM, GROWER & HEWES, PLLC & Taylor B. McNeel --
tmcneel@brunini.com -- BRUNINI, GRANTHAM, GROWER & HEWES, PLLC.
STATE FARM: "Aguilar" Sues Over TCPA Violation
----------------------------------------------
Andy Aguilar, on behalf of himself and all others similarly
situated, Plaintiff, v. State Farm Mutual Automobile Insurance
Company, Defendant, Case No. 1:16-cv-01211 (C.D. Ill., June 10,
2016), seeks injunctive relief, declaratory relief, statutory
damages treble damages and attorney fees and costs under the
Telephone Consumer Protection Act.
Defendant placed unauthorized automated text messages and
telephone calls to Plaintiff's cellular phone in order to promote
its products.
State Farm is a Delaware corporation engaged in insurance,
headquartered in Bloomington, Illinois.
Plaintiff is represented by:
Sergei Lemberg, Esq.
LEMBERG LAW, L.L.C.
43 Danbury Road, 3rd Floor
Wilton, CT 06897
Telephone: (203) 653-2250
Facsimile: (203) 653-3424
SUNRUN INC: Defending Against Shareholder Complaints in Calif.
--------------------------------------------------------------
Sunrun Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on May 13, 2016, for the quarterly period
ended March 31, 2016, that the Company intends to defend itself
vigorously against shareholder complaints in California.
On April 13, 2016, a purported shareholder class action captioned
Pytel v. Sunrun Inc., et al., Case No. CIV 538215, was filed in
the Superior Court of California, County of San Mateo, against the
Company, certain of the Company's directors and officers, the
underwriters of the Company's initial public offering and certain
other defendants. The complaint generally alleges that the
defendants violated Sections 11, 12, and 15 of the Securities Act
of 1933 by making false or misleading statements in connection
with an August 5, 2015 initial public offering regarding the
continuation of net metering programs. The plaintiff seeks to
represent a class of persons who acquired the Company's common
stock pursuant or traceable to the initial public offering.
Plaintiff seeks compensatory damages, including interest,
rescission or rescissory damages, an award of reasonable costs and
attorneys' fees, and any equitable or injunctive relief deemed
appropriate by the court. On April 21, 2016, a purported
shareholder class action captioned Mancy v. Sunrun Inc., et al.,
Case No. CIV 538303, was filed in the Superior Court of
California, County of San Mateo. On April 22, 2016, a purported
shareholder class action captioned Brown et al. v. Sunrun Inc., et
al., Case No. CIV 538311, was filed in the Superior Court of
California, County of San Mateo. On April 29, 2016, a purported
shareholder class action captioned Baker et al. v. Sunrun Inc., et
al., Case No. CIV 538419, was filed in the Superior Court of
California, County of San Mateo. The Mancy, Brown, and Baker
complaints are substantially similar to the Pytel complaint, and
seek similar relief against similar defendants on behalf of the
same purported class.
On April 21, 2016, a purported shareholder class action captioned
Cohen, et al. v. Sunrun Inc., et al., Case No. CIV 538304, was
filed in the Superior Court of California, County of San Mateo,
against the Company, certain of the Company's directors and
officers, and the underwriters of the Company's initial public
offering. The complaint generally alleges that the defendants
violated Sections 11, 12, and 15 of the Securities Act of 1933 by
making false or misleading statements in connection with an August
5, 2015 initial public offering regarding the Company's business
practices and its dependence on complex financial instruments. The
Cohen plaintiffs seek to represent the same class and seek similar
relief as the plaintiffs in the Pytel, Mancy, Brown, and Baker
actions.
The Company intends to defend itself vigorously against these
complaints. The Company is not able to estimate the ultimate
outcome or a range of possible loss at this time.
Sunrun Inc. ("Sunrun" or the "Company") was originally formed in
2007 as a California limited liability company, and was converted
into a Delaware corporation in 2008. The Company is engaged in the
design, development, installation sale, ownership, and maintenance
of residential solar energy systems ("Projects") in the United
States.
SUPREME INTERNATIONAL: Faces Fla. Lawsuit Alleging FLSA Violation
-----------------------------------------------------------------
Abimael Adames, and Christopher Coles, on behalf of themselves and
those similarly situated, Plaintiffs, v. Supreme International
USA, Inc., a Florida Corporation, Defendant, Case 6:16-cv-01092-
JA-TBS (M.D. Fla., June 22, 2016), was brought to recover overtime
compensation, declaratory relief and other relief under the Fair
Labor Standards Act.
Supreme International Isa, Inc. is an interior design business
that designs and installs/remodels kitchens, bathrooms, cabinetry,
and flooring for residences.
The Plaintiffs are represented by:
Matthew R. Gunter, Esq.
MORGAN & MORGAN, P.A.
20 N. Orange Ave., 14th Floor
P.O. Box 4979
Orlando, FL 32802-4979
Phone: (407) 420-1414
Fax: (407) 867-4791
E-mail: mgunter@forthepeople.com
TARGET CORP: "Bundy" Mislabelling Suit Transferred to N.D. Ill.
---------------------------------------------------------------
Charles Bundy, on behalf of himself and all others similarly
situated, Plaintiffs, v. Target Corporation, Defendant, Case No.
1:16-cv-06179 (M.D. Pa., March 18, 2016), was transferred to the
U.S. District Court for the Northern District of Illinois on
June 15, 2016, and assigned Case No. 1:16-cv-00475.
Target Corporation has advertised its Market Pantry branded
"Parmesan 100% Grated Cheese" products as "100%" Parmesan cheese
despite allegedly containing significant amounts of adulterants
and fillers in violation of Unfair Trade Practice and Consumer
Protection Law and Magnusson-Moss Warranty Act.
Plaintiff is represented by:
Gary F. Lynch, Esq.
CARLSON LYNCH SWEET & KILPELA, LLP
1133 Penn Avenue, 5th Floor
Pittsburgh, PA 15222
Tel: (412) 322-9243
Email: glynch@carlsonlynch.com
- and -
John J. Driscoll, Esq.
Philip Sholtz
THE DRISCOLL FIRM
211 N. Broadway, 40th Floor
St. Louis, MO 63102
Tel: (314) 932-3232
Email: john@thedriscollfirm.com
phil@thedriscollfirm.com
TARSADIA HOTELS: Greenberg Traurig to Join Defense in "Beaver"
--------------------------------------------------------------
In the case captioned DEAN BEAVER, et al., Plaintiffs, v. TARSADIA
HOTELS, et als., Defendants, Case No. 11CV1842-GPC(KSC) (S.D.
Cal.), Judge Gonzalo P. Curiel granted the motion filed by third
party defendant Greenberg Traurig LLP to participate in the
defense of the main action pursuant to Federal Rule of Civil
Procedure 14(a).
A full-text copy of Judge Curiel's June 27, 2016 order is
available at https://is.gd/HsQNLT from Leagle.com.
Plaintiffs Dean Beaver, Laurie Beaver, Steven Adelman, Abram
Aghachi, Dinesh Gauba, Kevin Kenna and Veronica Kenna brought a
class action on behalf of themselves and all others similarly
situated against developers and agents of the Hard Rock Hotel &
Condominium Project ("Tarsadia Defendants"). The plaintiffs
asserted five causes of action:
1) violation of the Interstate Land Sales Full Disclosure
Act, 15 U.S.C. section 1701 et seq. ("ILSA");
2) California's Subdivided Lands Act, California Business
and Professions Code sections 11000 et seq.;
3) fraud;
4) negligence; and
5) violation of California Business and Professions Code
sections 17200 et seq.
The plaintiffs brought the action on behalf of persons who
purchased units at the Hard Rock Hotel & Condominium Project
between May 2006 and December 2007 for the defendants' failure to
disclose and intentionally concealing the plaintiffs' right to
rescind their purchase contracts within two years of the date of
signing the contracts.
Dean Beaver, Plaintiff, represented by Donald Eugene Chomiak,
Talisman Law, P.C., Michael J. Reiser, Law Office of Michael
Reiser, Michael L. Schrag -- mls@classlawgroup.com -- Gibbs Law
Group, LLP, Tyler R. Meade, The Meade Firm P.C., Michael Rubin --
mrubin@altber.com -- Altshuler Berzon LLP & Wendy C. Fostvedt,
Fostvedt Legal Group, LLC, pro hac vice.
Laurie Beaver, Steven Adelman, Abram Aghachi, Dinesh Gauba, Kevin
Kenna, Veronica Kenna, Plaintiffs, represented by Donald Eugene
Chomiak, Talisman Law, P.C., Michael L. Schrag, Gibbs Law Group,
LLP, Tyler R. Meade, The Meade Firm P.C., Michael Rubin, Altshuler
Berzon LLP & Wendy C. Fostvedt, Fostvedt Legal Group, LLC, pro hac
vice.
Tarsadia Hotels, Tushar Patel, B.U. Patel, Gregory Casserly,
Gaslamp Holdings, LLC, Defendants, represented by Alicia Natalie
Vaz -- avaz@coxcastle.com -- Cox Castle and Nicholson, Perry
Hughes -- phughes@coxcastle.com -- Cox Castle & Nicholson,
Frederick H. Kranz, Jr. -- rkanz@coxcastle.com -- Cox Castle &
Nicholson, LLP & Lynn T. Galuppo -- lgaluppo@coxcastle.com -- Cox,
Castle & Nicholson, LLP.
5th Rock LLC, MKP One, LLC, Defendants, represented by Alicia
Natalie Vaz, Cox Castle and Nicholson, Natalia Arpy Minassian,
Bruce A. Hatkoff, A Law Corporation,Perry Hughes, Cox Castle &
Nicholson, Frederick H. Kranz, Jr., Cox Castle & Nicholson, LLP &
Lynn T. Galuppo, Cox, Castle & Nicholson, LLP.
Playground Destination Properties, Inc., Defendant, represented by
Daniel M. Benjamin -- dbenjamin@mcnamarallp.com -- McNamara
Benjamin LLP, John J. Rice & Thomas W. McNamara --
tmcnamara@mcnamarallp.com -- McNamara Benjamin LLP.
Gregory Casserly, MKP One, LLC, Tushar Patel, Gaslamp Holdings,
LLC, Tarsadia Hotels, B.U. Patel, ThirdParty Plaintiffs,
represented by Alicia Natalie Vaz, Cox Castle and Nicholson, Perry
Hughes, Cox Castle & Nicholson & Frederick H. Kranz, Jr., Cox
Castle & Nicholson, LLP.
5th Rock LLC, Jr.Plaintiff, represented by Alicia Natalie Vaz, Cox
Castle and Nicholson & Perry Hughes, Cox Castle & Nicholson.
5th Rock LLC, Plaintiff, represented by Frederick H. Kranz, Jr.,
Cox Castle & Nicholson, LLP.
Greenberg Traurig, LLP, a limited liability partnership,
ThirdParty Defendant, represented by Kirsten Hicks Spira --
kspira@jenner.com -- Jenner & Block LLP & Michael McNamara --
mmcnamara@jenner.com -- Jenner & Block LLP.
TD BANK: Faces Class Action Over Defective Coin-Counting Machines
-----------------------------------------------------------------
The Canadian Press reports that a Canadian class-action lawsuit
has been filed on behalf of people who used TD Bank coin-counting
machines over a three-year period.
The suit alleges that the bank had learned of numerous accuracy
problems with its coin-counting machines in the United States but
still proceeded with a national rollout of the machines across
Canada in January 2013.
The allegations have not been proven in court. TD Bank declined a
request for comment.
A statement of claim filed against the bank in Ontario by the
Toronto law firm Sotos LLP says that the Canadian machines were
retired shortly after they were retired in the United States in
May 2016.
The suit was filed as a class action on behalf of everyone who
used TD Bank's coin-changing machines in Canada between
January 1, 2013 and May 25, 2016.
In order to proceed as a class action, the Canadian suit requires
certification from the Ontario Superior Court. A similar claim
was filed against the bank in April in the United States on behalf
of customers who used the U.S. machines.
TENSION INTERNATIONAL: "Bowers" Labor Suit Transferred W.D. Mo.
---------------------------------------------------------------
David Bowers, on behalf of himself, individually, and on behalf of
all others similarly situated, Plaintiff, v. Tension
International, Inc., a Missouri corporation doing business in
Colorado as Tension Packaging & Automation, Defendant, Case No.
4:16-cv-00562 (D. Colo., December, 2015), was transferred to the
United States District Court for the Western District of Missouri
on June 13, 2016, and assigned Case No. 1:15-cv-02734.
Tension is a Missouri corporation into packaging in Longmont,
Colorado. It allegedly misclassified its employees as contractors,
thus denying them mandatory benefits.
Plaintiff is represented by:
Heather E. Joyce, Esq.
SAWAYA & MILLER LAW FIRM
1600 Ogden Street
Denver, CO 80218
Tel: (303) 839-1650
Fax: (720) 235-5316
Email: hjoyce@sawayalaw.com
Defendant is represented by:
Alexander Christian Clayden, Esq.
LATHROP & GAGE, LLP-DENVER
950 17th Street
U.S. Bank Building, Suite 2400
Denver, CO 80202
Tel: (720) 931-3200
Fax: (720) 931-3201
Email: aclayden@lathropgage.com
- and -
Brian N. Woolley, Esq.
LATHROP & GAGE LLP
2345 Grand Blvd., Suite 2200
Kansas City, MO 64108
Tel: (816) 292-2000
Fax: (816) 292-2001
Email: bwoolley@lathropgage.com
- and -
Keith Patrick Ray, Esq.
LATHROP & GAGE, LLP-DENVER
950 17th Street
U.S. Bank Building, Suite 2400
Denver, CO 80202
Tel: (720) 931-3200
Fax: (720) 931-3201
Email: kray@lathropgage.com
TICKETMASTER: Adds $5MM Worth Eligible Tickets for Class Members
----------------------------------------------------------------
Lucy Bayly, writing for NBC News, reports that hot on the heels of
Ticketmaster's announcement on June 21 that 50 million customers
would receive discount codes and free tickets to upcoming concerts
as part of a $386 million class action lawsuit over bloated
service fees, the online ticketing platform is struggling to meet
demand -- and facing new dissatisfaction from would-be
concertgoers.
The settlement was supposed to be Ticketmaster's attempt to repair
the damage to its reputation after the lawsuit accused the
ticketing giant of "deceptive" practices. However, a stream of
technical snafus, dead ends, and lackluster concert choices has
left customers less than impressed with Ticketmaster's handling of
the distribution of freebie tickets and vouchers.
Customers were quick to fire off after the site went down, voucher
codes failed to display or completely disappeared from customer
accounts, and information on the free concert series (via
Ticketmaster's parent company Live Nation) was slow to be
released.
But feedback was swift once Ticketmaster finally tweeted on
June 21, "Our site has experienced unprecedented demand . . . We
are also experiencing extremely high call volumes and appreciate
your patience as we work as quickly as possible to address all
inquiries."
"How could you have been this unprepared? This settlement has been
coming for YEARS," responded a frustrated customer. "Thanks for
these useless 'active' voucher codes and wasting the last hour of
my life. Burn in hell," wrote one dissatisfied customer on
Ticketmaster's Twitter page. "Ticket vouchers still don't work as
advertised. Your company is a giant smoldering garbage fire,"
added another.
To make matters worse, once the list of eligible concerts was
released, customers hoping to see their favorites were
disappointed to find the lineup included artists such as Steely
Dan, Buckcherry, Queensryche, the Proclaimers, and an Elton John
tribute band -- with no mention of the marquee names currently
advertised on Live Nation's website (like Kanye, Justin Bieber,
and Drake).
"The Ticketmaster settlement of free tickets to Slipknot and
Darius Rucker is the corporate equivalent of paying a parking
ticket with pennies," tweeted one disenfranchised concertgoer.
Additionally, many people were frustrated to find that eligible
venues were only located in 19 states, rendering their "free
tickets" practically worthless.
One customer had his own particular summary of the debacle: "A
perfect illustration of my relationship with Ticketmaster over the
last 15 years."
Ticketmaster did not immediately respond to a request for comment,
but by June 23 it had posted on its website that, "Given the
overwhelming interest, Ticketmaster is adding another $5m worth of
eligible tickets so more class members can redeem ticket
vouchers."
TRANSGLOBAL SERVICES: "Byles" Suit to Recover Overtime Pay
----------------------------------------------------------
Jeremy Byles, Mackie R. Byles, Mackie W. Byles, Robert Howard,
David Gann and Bon Scott Morris, Individually and On Behalf of All
Others Similarly Situated, Plaintiffs, v. Transglobal Services,
LLC Jeffery Colwell and John Ratliff Defendants, Case No. 7:16-cv-
00146 (W.D. Tex., June 10, 2016), seeks unpaid overtime wages,
liquidated damages, attorney fees, costs and expenses, pre- and
post-judgment interest and all other relief pursuant to the Fair
Labor Standards Act of 1938.
Transglobal classifies all or virtually all of its field
personnel, such as the Plaintiffs, as independent contractors,
thus denying them overtime pay, says the complaint.
Transglobal is a full service field service provider in the energy
industry, primarily providing surveying, right of way and seismic
services to oil and gas producers. It is owned by Jeffery Colwell
and John Ratliff.
Plaintiffs are represented by:
Josh Borsellino, Esq.
BORSELLINO, P.C.
1020 Macon St., Suite 15
Fort Worth, TX 76102
Telephone: (817) 908-9861
Facsimile: (817) 394-2412
Email: josh@dfwcounsel.com
TRUMP UNIVERSITY: Deposition Transcripts in Fraud Case Released
---------------------------------------------------------------
Lynn Walsh and JW August, writing for NBC San Diego, report that
transcripts from three depositions of Donald Trump associated with
two Trump University lawsuits were released into the public court
record late on June 22.
Throughout the 651 pages, Mr. Trump is asked basic questions
ranging from what university he attended, how he spells his name
and if he owns a personal computer. The real estate magnate told
questioners the shuttered for-profit school was "very important"
to him, and said the man running the school called "once in a
while" to discuss it and would introduce educators to him.
The depositions are associated with two different lawsuits being
heard in San Diego federal court: Cohen v. Trump, a nationwide
class action lawsuit, and Low v. Trump (formerly Makaeff v.
Trump), a class action in California, Florida and New York.
Another lawsuit is based in a New York court.
In the class action lawsuits, Trump University is accused of
misleading students with unfulfilled promises of teaching them the
secret to being successful in the real estate business.
Mr. Trump denies the allegations made in the lawsuits. His
attorney, Daniel Petrocelli, has said Mr. Trump "will defend
himself fully."
A trial has been set for November 28 in the Low v. Trump case and
Trump has said he will be in court to testify. The court date is
weeks after the general election in which Trump is the presumptive
Republican nominee for president.
The video depositions of Trump were taken on three different days:
September 12, 2012; December 10, 2015 and January 21, 2016. The
2012 deposition is associated with the Low v. Trump case, the
other two with the Cohen v. Trump case. The depositions in the
Cohen v. Trump case contain some redactions.
In one deposition, Mr. Trump says the lawsuits are trying to hurt
the Trump brand, which he describes as being "worth a lot of money
. . . I think there was an estimate done of over $3 billion or $3
billion for the value of the brand," according to the transcripts.
In an email to NBC 7, Lisa Cohen, who represents the attorneys
representing the plaintiffs in the lawsuits, said the attorneys do
not have a comment on the transcripts or their release into the
public record.
Attorneys representing Mr. Trump in the case did not return a
request for comment.
Among the information in the transcripts:
-- Imparting knowledge that can better peoples' lives "is a
very important thing to me," Mr. Trump says
-- He threatens to sue the firm that brought the suit
-- Trump says he does not own a personal computer
Who 'Ran the School'
Mr. Trump details in the depositions how he remembers the school
being run, saying Michael Sexton was in charge of Trump University
in 2012.
Mr. Sexton reported to him, Mr. Trump says, and would call him
"once in a while," come up with meetings and introduce professors
and educators to Mr. Trump. In one section of the transcript, he
says Sexton had "limited" experience in buying and selling real
estate and could not remember if he had ever run a school before,
but described him as capable.
Mr. Sexton "ran the school," Mr. Trump says in the September
deposition, after not being able to answer questions about what
students received in return for paying $1,500 for its
apprenticeship program and the Gold Elite program.
According to the transcript of the depositions, Trump University
was "very important" to Mr. Trump.
"If I can impart knowledge to a person or a group of people so
they can have better lives, that's a very important thing to me. I
like doing that," he says.
In another deposition, Mr. Trump expresses the same feelings: "I
thought it was something that was going to help people. I thought
it was something where people learn. They could, they could, for
a relatively small amount of money, they could learn something
good."
Mr. Trump says he attended a Trump University seminar in Florida a
couple of times and one or two in New York, according to the
transcript. He says he was "very, very satisfied" with what he
saw. He adds that he believes students could attend a 90-minute
free class, learn techniques and then copy them to get rich.
When asked about the people who taught for Trump University,
Mr. Trump says, "at a minimum, I've seen resumes, I met with
instructors, but I also have seen resumes of many of them."
In one deposition, Mr. Trump says the school did not have a
business plan: "It wasn't a big transaction for me. It wasn't a
make-or-break deal. It was just something that if we can educate
people into the ways of real estate and finance, that's a good
thing . . ."
The transcript of the September 12 deposition has a contentious
tone. In it, Mr. Trump says he has testified over 100 times,
including in court hearings. At one point during the questioning,
the attorneys representing both sides stop the video recording and
call the judge to have him intervene and weigh in on questions
being asked.
"I honestly look forward to winning this case and suing your law
firm for as much as we can sue them for," Trump tells Rachel
Jensen, a representative for the plaintiffs and the person
questioning Trump in the deposition. "We will be doing that. We
have a 97 percent approval rating. Harvard doesn't have a 97
percent approval rating. And we will be suing your law firm for
as much as we can possibly do. That I can tell you."
Trump also tells Ms. Jensen he will be suing her individually.
Early in the questioning, Ms. Jensen says, "just to be clear for
today, Mr. Trump, one, I'm not here to harass you. I'm here to
ask you questions about the case."
Mr. Trump responds, "it seems like you are, but that's okay."
Similar exchanges continue. A couple of questions later,
Ms. Jensen says, "really nothing personal, and I'm not here to
harass you."
"That's okay. You asked me to spell my name, so I figured that's a
form of harassment. . . It's okay. Nobody has ever done that
before," Mr. Trump responds.
Ms. Jensen explains it is "just formalities in a deposition." To
that, Mr. Trump responds, "All the depositions I've taken, no one
has ever asked me to spell my complete name."
Toward the end of the September deposition, Mr. Trump asks
Ms. Jensen to not lick her finger before giving him documents.
"It's disgusting," he says.
Mr. Trump describes himself as a real estate expert and says, "I
can't imagine anybody being much more of an expert."
The depositions have several references to politics, including
political figures Jeb Bush, Bill and Hillary Clinton and Governors
Rick Perry of Texas and George Pataki of New York.
In the most recently recorded deposition, when asked why
throughout discovery in the case, the plaintiffs' attorneys have
not received any e-mails sent by or received from Mr. Trump, he
responds, "unlike Hillary Clinton, I'm not a big e-mail fan."
According to the transcript, Mr. Trump told one of the plaintiff's
attorneys, "you want to always be friendly with politicians . . .
I needed their support to get projects done."
In the deposition, Mr. Trump says he really didn't think about it
that much when he once said "she (Hillary Clinton) would make a
great president or vice president," but does now, "yeah, at the
time I might have. I didn't give it a lot of thought, because I
was in business. And as a businessman, I think it was something I
never really gave much thought to."
Now, after seeing how she handled herself "she wouldn't make a
very good vice president or president," he says.
TUBERVILLE, SC: Faces Class Action Over Speed Ticket Fines
----------------------------------------------------------
The Associated Press reports that a class-action lawsuit has been
filed against the Clarendon County town of Turbeville for its
practice of charging speeders under an ordinance that allows the
town to keep the fines rather than the state.
The State newspaper in Columbia reports the lawsuit filed by three
law firms seeks nullification of Turbeville's town safety
ordinance. It also seeks the return of millions of dollars to
drivers who received such tickets since 2003, when the local
ordinance was passed.
The ordinance allows Turbeville to write traffic tickets with
higher fines than state traffic tickets.
Turbeville administrator Rodney Johnson declined to comment to the
newspaper. In 2013, Turbeville police chief David Jones said the
fines were intended to "shock the conscious" of speeding drivers
who could endanger the safety of residents.
UBER TECHNOLOGISE: Leaked Documents Reveal Drivers' Earnings
------------------------------------------------------------
Maya Kosoff, writing for Vanity Fair, reports that if you listen
to Uber, its "driver partners" can make a comfortable living -- as
much as $90,000 a year in some markets. Last year, Uber released
a study showing that its drivers earned an average of $17 an hour,
above New York City's living wage of $14.29 an hour. The reality
of that claim has been contested before, with drivers saying
they're making closer to minimum wage than a living wage. But now,
thanks to leaked internal price-modeling numbers and Uber's own
calculations, BuzzFeed reports, Uber drivers in three major U.S.
markets are just barely scraping by.
As of late 2015, drivers in Houston, Detroit, and Denver were all
making less than $13.25 per hour after expenses. (Because drivers
are independent contractors and not Uber employees, they shoulder
the burden of costs like insurance, gas, maintenance, and their
cars' leases themselves). In Detroit, drivers are making $8.77
per hour after expenses. By comparison, Walmart pledged to raise
its own minimum wage to $10 an hour earlier this year, CNET notes,
though contract work like driving for a ride-hailing start-up,
Uber would argue, provides flexibility that an hourly-wage-work
job doesn't. BuzzFeed's calculations are based on a two-week
period in late 2015, reflecting earnings after expenses (including
Uber's commission from fare), but do not take into account taxes.
The average numbers cited by BuzzFeed likely contain a wide range
of earnings, which vary from driver to driver and can go up or
down depending on how Uber decides to price rides. More
experienced drivers are more strategic about managing expenses or
doing more trips per hour, BuzzFeed notes, making better use of
their time. And in January, Uber implemented a series of fare
cuts across 100 cities in the U.S. and Canada, intended to spur
user demand and thus benefit drivers. Some drivers, unhappy with
the fare cuts, protested. All three of the cities in BuzzFeed's
report had their fares cut, though Fortune reports Detroit's fare
cuts have been partially reversed.
Uber seems to be actively improving its relationships with
drivers, rolling out new driver-friendly policies like charging
users a fee for keeping their drivers waiting. But its business
model still depends on ensuring that drivers remain independent
contractors, without access to costly benefits like health care or
retirement plans. In April, Uber paid out $100 million to drivers
in a class-action settlement who claimed they had been
deliberately misclassified as contractors when they were really
employees. Had they really been employees, Uber would have been
responsible for a range of costs, including Social Security,
overtime, and paid sick days. The settlement let Uber keep its
contractor-based system in place, but ultimately highlighted the
precariousness of the underlying economics of Uber's business
model: if Uber struggles to pay its drivers adequately in even its
most profitable markets, its capacity to raise prices will be
limited by its ability to create local and regional monopolies. As
long as Lyft and other competitors remain in the game, Uber will
have to continue burning billions to subsidize rides and fuel its
global expansion.
USA TECHNOLOGIES: Dismissal of "Messner" Suit Under Appeal
----------------------------------------------------------
USA Technologies, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on May 13, 2016, for the
quarterly period ended March 31, 2016, that the plaintiff in a
class action lawsuit has taken an appeal from a district court's
dismissal of his amended complaint.
On October 1, 2015, a purported class action complaint was filed
in the United States District Court for the Eastern District of
Pennsylvania by Steven P. Messner, individually and on behalf of
all others similarly situated, against the Company and its
executive officers, alleging violations under the Securities
Exchange Act of 1934. The lawsuit was filed on behalf of a
purported class of investors who purchased or otherwise acquired
securities of the Company between September 29, 2014 and September
29, 2015. The complaint alleges that the defendants made
materially false and misleading statements, relating to, among
other things, the failure to identify a large number of
uncollectible small balance accounts. The complaint seeks
certification as a class action and unspecified damages including
attorneys' fees and other costs. On December 15, 2015, the court
appointed a lead plaintiff, and on January 18, 2016, the plaintiff
filed an amended complaint that set forth the same causes of
action and requested substantially the same relief as the original
complaint. On February 1, 2016, the Company filed a motion to
dismiss the amended complaint alleging, among other things, the
amended complaint does not satisfy the applicable pleading
standards under the Private Securities Litigation Reform Act.
On April 11, 2016, the Court held oral argument on the Company's
motion, and on April 14, 2016, the Court entered an order granting
the Company's motion to dismiss the amended complaint without
leave to amend. On May 13, 2016, plaintiff filed a notice of
appeal from the Court's order.
VALVE: Faces Class Action in Connecticut Over CS:GO Betting Skins
-----------------------------------------------------------------
Dexerto reports that in what appears to be the case of a
disgruntled gambler losing money, Valve has received a lawsuit
regarding CS:GO betting skins.
What does that mean? Essentially the Counter Strike developer is
getting sued because they're not regulating third party gambling
websites.
Roger Quiles on Twitter, a well known esports lawyer said "So the
plaintiff in this case has filed a class action lawsuit against
Valve alleging a violation of Connecticut's laws against gambling,
unjust enrichment (the profiting off of illegal activities),
violation of the Racketeer Influenced and Corrupt Organization Act
(RICO, which relates to the control of organized crime), and a
violation of Connecticut's unfair trade practices act.
The crux of the case, Plaintiff alleges, is that Valve knowingly
allowed, supported, and/or sponsored unlawful gambling in the form
of skins betting. Likening skins to casino chips, the plaintiff
alleged that skins have real monetary value and are frequently
sold for such. This is important for unlawful gambling analysis.
In order for unlawful gambling to exist, an "item of value" must
be wagered. There is a growing body of case law on what
constitutes an "item of value" in the virtual realm. We'll have to
see if the court agrees that skins qualify as such.
Notably, this lawsuit is a class action. A class action is a
lawsuit filed on behalf of yourself and everyone similarly
situated to yourself. Here, the proposed class of plaintiffs is
categorized as "All persons in the United States who deposited
money into any account with Defendant and its unnamed co-
conspirators and wagered on the outcome of CS:GO games". Now, in
order to proceed as a class action, the proposed class must be
certified by the court through an extensive inquiry. By no means
is this an easy task.
This case is incredibly complex, and is not without its challenges
to overcome in order to succeed. The named plaintiff will have to
obtain class certification, which is difficult. The court would
need to determine that Skins are items of value in order for
unlawful gambling to exist, which will be difficult as arguments
can be made on both sides. The plaintiff class will have to prove
that RICO was in fact violated, which is also not easy. This is a
highly technical case, and will be fascinating to follow as it
develops. However, the reality of litigation is that this case
will likely not see trial, and perhaps not even a definitive
decision by the court. The vast majority of cases, especially
class actions, settle. I wouldn't be surprised if that happens
here. I also wouldn't be surprised if the skins gambling
landscape is changed drastically by the result of this case. Even
if it is not eradicated, it will certainly be significantly
altered."
VITAMINERALS: Comprehensive Health Sues Over TCPA Violation
-----------------------------------------------------------
Comprehensive Health Care Systems Of The Palm Beaches, Inc., a
Florida Corporation, individually and as the representative of a
class of similarly-situated persons, Plaintiff, v. Vitaminerals VM
Orthopedics, Ltd., The Hygenic Corporation and John Does 1-12,
Defendants, Case 9:16-cv-80966 (S.D. Fla., June 10, 2016), seeks
statutory damages, trebling of the statutory damages, injunctive
relief, compensation and attorney fees and all other relief under
the Telephone Consumer Protection Act.
Defendants sent promotional advertisements by facsimile to
Plaintiff without prior consent.
VM is an Ohio limited corporation with its principle place of
business in Hudson, Ohio. Hygenic is a Delaware corporation with
its principal place of business in Akron, Ohio. Both are in the
healthcare business.
The Plaintiff is represented by:
Phillip A. Bock, Esq.
Tod A. Lewis, Esq.
David M. Oppenheim, Esq.
Daniel J. Cohen, Esq.
BOCK, HATCH, LEWIS & OPPENHEIM, LLC
134 N. La Salle St,, Ste. 1000
Chicago, IL 60602
Telephone: 312-658-5500
Facsimile: 312-658-5555
VOLKSWAGEN GROUP: Golf 1.4 TSI Owners File Class Action in Seoul
----------------------------------------------------------------
Jhoo Dong-chan, writing for The Korea Times, reports that
Volkswagen (VW) is facing another class action law suit from
disgruntled customers who bought the German automaker's gasoline-
powered Golf 1.4 TSI. The prosecution said that the company was
found to have given false emissions data for the hatchback model
and therefore was sold illegally in Korea.
According to industry sources, on June 27 26 owners of the 7th
generation Golf 1.4 TSI filed a collective lawsuit with the Seoul
Central District Court against Volkswagen and its local unit, Audi
Volkswagen Korea, along with their dealerships for what they call
illicit gains from cheating on emissions tests.
Lawyer Ha Jong-seon, who represents the owners at Barun Law, said
he will help other owners of the car if they want to join the
action. The company has sold 1,567 cars since March last year.
"The automaker sold the model with deceptive information about
emissions," said Ha.
"Under the Civil Code Section 110, its sales contracts with Korean
consumers should be invalidated and Audi Volkswagen Korea should
refund the purchase price of the cars to the customers."
The 7th generation Golf 1.4 TSI model first failed an emissions
test conducted the government in May 2014, but finally passed it
after allegedly installing a software device to cheat emissions
tests in November 2014.
On June 27, the 26 owners also filed a petition with the Ministry
of Environment, demanding an all-out examination on all models of
Audi and Volkswagen.
Models of the German automaker, including the 3-liter diesel
engine model found in the Porsche Cayenne, are named in the
petition.
The petition also requests that the government stop considering
the automaker's recall plan, which has been found to have defeat
devices in its EA189 diesel-engine models. The plan was rejected
three times due to "slipshod" details, and the government plans to
order VW to refund the purchase price of the cars to the consumers
or exchange the affected cars for newer models.
The Korean consumers' legal and petition moves are attributed to
the automaker's reaction in the U.S.
According to various foreign press outlets including AP and
Reuters, VW is expected to not only exchange cars or provide
refunds to American consumers but also pay each consumer a maximum
of $10,000 in compensation. Some said the total compensation in
the U.S. may reach $10.2 billion (12 trillion won).
Plus, previous owners who had driven Volkswagens before the
scandal came to the surface are also included in the automaker's
compensation plans.
Separate from the compensation plans, Volkswagen is also expected
to pay $4 billion in fines for environmental damage.
In Korea, however, the automaker is sticking to its original
position that it does not have any plans to compensate consumers
because it has yet to be convicted of any crime.
"We don't have anything to officially comment about at this
point," said an Audi Volkswagen Korea official.
"The compensation takes place in the U.S. Since Korea has a
different set of environmental regulations, it is natural for us
to have a different set of consumer plans."
VOLKSWAGEN GROUP: To Pay Diesel Owners $7,000 Under Settlement
--------------------------------------------------------------
Jeff Plungis, Alan Katz, John Lippert and Christoph Rauwald,
writing for Bloomberg News, report that Volkswagen AG will pay
owners of its polluting diesel cars as much as $7,000 each and
agree to fund a program to offset air pollution, under a $10
billion settlement being negotiated for submission to a federal
judge, said people familiar with the talks.
In addition to either fixing or buying back the affected cars, VW
will provide cash payments worth between $1,000 and $7,000,
depending on the vehicle's age and other factors, to compensate
consumers, the people said. All spoke on the condition they not
be identified because U.S. District Judge Charles Breyer, who is
supervising the settlement discussions, has imposed a gag order.
The environmental remediation program is a key priority for
regulators looking to undo the damage of 482,000 diesel cars that
emit as much as 40 times the permitted amounts of smog-forming
nitrogen oxides. VW isn't expected to be able to repair all of
the cars affected to the satisfaction of the EPA, which may result
in buybacks or extra payments to the environmental fund.
The Wolfsburg, Germany-based carmaker has admitted that since 2009
it rigged cars to pass U.S. Environmental Protection Agency and
California Air Resources Board emission tests. VW, the EPA, CARB
and the Justice Department, and attorneys representing affected
consumers are scheduled to present a settlement agreement June 28.
'Substantial Benefits'
"This settlement will provide substantial benefits to both
consumers and the environment -- providing car owners and lessees
fair value for their vehicles, while also removing environmentally
harmful vehicles from the road," Elizabeth Cabraser, lead counsel
for the plaintiff's steering committee, said in an e-mail.
The parties reached a tentative agreement in April though
discussions on the details are still continuing and may change
before being submitted, the people said.
Jeannine Ginivan, a spokeswoman for Volkswagen, and Nick Conger, a
spokesman for the EPA, declined to comment.
Car owners will be faced with complex calculations to figure out
how much cash they might receive from Volkswagen, two of the
people said, which could irritate them and further sour the
carmaker's relationship with its customers.
Buy Backs
Owners can opt to have their cars repaired, yet because the EPA
and CARB haven't approved VW's proposed fixes, there's no
timetable for the repairs nor a guarantee there will ever be an
approved fix, one of people said. Under the agreement, Volkswagen
will buy back cars at their value before the scandal became public
in September.
Regulators are looking at a small but popular diesel-emissions
clean-up program as a model for a VW remediation fund, according
to the people. The Diesel Emissions Reduction Act grant program
is funded by the EPA but partially administered by states with
severe diesel pollution. The so-called DERA program funded
projects like retrofitting older diesel buses or scrapping and
replacing fleets of diesel-powered drayage trucks at ports.
The new fund will have an administrator hired by the Justice
Department, one person said. States will be allocated funds, but
they'll have to submit projects for approval based on criteria
laid out in the court agreement. The fund administrator will
audit projects. VW hasn't had any input into details regarding
the remediation plan, the person said.
Diesel Grants
There are plenty of potential takers for clean-diesel grants, said
Ezra Finkin, policy director of the Diesel Technology Forum, a
trade group based in Frederick, Maryland. In an assessment of the
diesel grant program, EPA estimated there were 1.1 million pieces
of older diesel equipment in use that could be retrofitted or
replaced, Mr. Finkin said. That includes on-road and off-road
equipment, heavy-duty trucks, locomotives and construction
machines.
The cost of the settlement will exceed $10 billion, a person
familiar with the matter said. The deal is expected to include
penalties for breaking U.S. clean-air laws, money to buy back
vehicles, and funds to compensate consumers and to settle class-
action claims. The company also faces a Federal Trade Commission
action for false advertising.
It's likely that VW won't have a final sign-off on its plan to fix
the 2-liter cars, the person said. That's making the plan to
compensate for environmental damage more important to regulators,
since the diesel-powered cars exceeding pollution limits remain on
the road.
Smog Assessment
The amount of money VW will pay into the fund will depend on a
technical assessment by the regulators of how much excess smog-
forming gases the non-compliant diesel cars emitted going back to
2009. They'll also estimate how much pollution to expect going
forward from consumers who don't sell their cars back to VW or
don't follow up on the recall repairs.
Lawyers for car owners are due to submit the proposed deal to the
San Francisco federal judge overseeing U.S. lawsuits by June 28.
The settlement will include options for car owners to sell their
vehicles back to Volkswagen or to terminate their leases early.
The case is In Re: Volkswagen "Clean Diesel" Marketing, Sales
Practices and Products Liability Litigation, MDL 2672, U.S.
District Court, Northern District of California (San Francisco).
WAIST GANG: Settles Deceptive Marketing Class Action for $5MM
-------------------------------------------------------------
The Fashion Law reports that Waist Gang Society LLC, the its
Kardashian-endorsed "waist training" products company, has settled
a $5 million deceptive marketing class action suit it was facing
out of court. Plaintiff Sara Hawes alleged in her lawsuit, which
was filed in March in the U.S. District Court for the Central
District of California, a federal court in Los Angeles, Waist Gang
Society sells a line of corsets that are marketed to women who
want to burn fat and achieve a smaller waist. The problem: the
company]s products do not live up to the claims made by in
connection with their marketing.
Ms. Hawes alleged in her suit that while the "'waist trainers' do
redistribute fat to other portions of the user's body, thereby
creating the perception of a fit and trim waist, however,
Defendant claims that the Products actually burn fat and control
the user's weight," which "is completely false and misleading. The
Products have absolutely no effect on fat loss of the user."
Ms. Hawes claimed that Waist Gang Society takes its assertions
about the products too far by claiming its reshaping products are
made of a "unique latex material which attacks unwanted fat and
impurities within your body." She further claimed that she would
have paid less for the waist training product -- or not purchased
it at all -- if she had known that it did not promote fat loss as
advertised.
While the parties have confirmed the settlement of the matter out
of court, the terms of the settlement agreement are confidential.
They likely include monetary compensation to Ms. Hawes and any of
the other plaintiffs that joined in the suit.
The case was Sara Hawes v. Waist Gang Society LLC, Case No. 2:16-
cv-01784.
WASHINGTON: Class Certification Bid in "Malone" Suit Denied
-----------------------------------------------------------
In the case, CALVIN MALONE et al., Plaintiffs, v. MARK STRONG,
Defendant, Case No. 3:16-CV-05284-RBL-DWC (W.D. Wash.), District
Judge Ronald B. Leighton approved the Report and Recommendation of
Magistrate Judge David W. Christel denying plaintiffs' request for
class action certification.
The claims of these plaintiffs are dismissed from Malone's suit,
Case No. 3:16-cv-05284, without prejudice:
* George Mitchell, Plaintiff, Pro Se.
* Ronald Fox, Plaintiff, Pro Se.
* Richard Schoonover, Plaintiff, Pro Se.
* Mark Robinson, Plaintiff, Pro Se.
* John E Brooks Plaintiff, Pro Se.
* Chris Cantley, Plaintiff, Pro Se.
* Jonathan Parsons, Plaintiff, Pro Se.
* Joseph Townsend, Plaintiff, Pro Se.
* Paul Geier, Plaintiff, Pro Se.
* Scott Jones, Plaintiff, Pro Se.
* George Hancock, Plaintiff, Pro Se.
* Zachery Nelson, Plaintiff, Pro Se.
* Bruce Rafford, Plaintiff, Pro Se.
* Michael Cole, Plaintiff, Pro Se.
* Jeremy Mathis, Plaintiff, Pro Se.
* Gregory Jaeger, Plaintiff, Pro Se.
* Duane Brennan, Plaintiff, Pro Se.
* Matthew Hopkins, Plaintiff, Pro Se.
* Dennis Dumas, Plaintiff, Pro Se.
* Curtis Pouncy, Plaintiff, Pro Se.
* Richard Jackson, Plaintiff, Pro Se.
* Laura McCollum, Plaintiff, Pro Se.
* Mikeel Azeem, Plaintiff, Pro Se.
* Thomas Toomey, Plaintiff, Pro Se.
* Tommy Coleman, Plaintiff, Pro Se.
* James Turner, Plaintiff, Pro Se.
The Report and Recommendation directs clerk to open a case for
each plaintiff and docket each plaintiff's pending application to
proceed in Forma Pauperis in each new case. The clerk is also
directed to docket the Proposed Complaint as the proposed
complaint in each new case, and then assign each to District Judge
Leighton and refer to Magistrate Judge Christel.
A copy of the decision dated June 23, 2016 is available at
http://goo.gl/Db3RiLfrom Leagle.com.
WHIRLPOOL CORP: May 2017 Fairness Hearing on "Dei Rossi" Accord
---------------------------------------------------------------
Judge Troy L. Nunley granted preliminary approval to the class
action settlement in the case captioned KYLE DEI ROSSI and MARK
LINTHICUM, on behalf of themselves and those similarly situated,
Plaintiffs, v. WHIRLPOOL CORPORATION, Defendant, Case No. 2:12-CV-
00125-TLN-CKD (E.D. Cal.).
The settlement requires Whirlpool Corporation to provide specified
compensation to each class member who meets certain eligibility
requirements and who timely submits a valid, completed claim form,
with or without specified supporting documentation depending on
whether the class member is a prequalified class member or a non-
prequalified class member, as set forth in the agreement.
All class members are entitled to elect to receive either:
-- a $55 cash payment, less any voluntary payment paid by
Whirlpool through Whirlpool's Voluntary Customer
Satisfaction Program, or
-- a 10% rebate of the purchase price of a New KitchenAid-
brand Major Appliance, without any cap as to the maximum
amount of the rebate.
A final fairness hearing is scheduled for May 18, 2017 at 2:00
p.m.
A full-text copy of Judge Nunley's June 27, 2016 order is
available at https://is.gd/EB10wX from Leagle.com.
Kyle Dei Rossi, Mark Linthicum, Plaintiffs, represented by Annick
Marie Persinger -- apersinger@bursor.com -- Bursor & Fisher, P.A.,
Lawrence Timothy Fisher -- ltfisher@bursor.com -- Bursor and
Fisher, PA, Anthony Vozzolo , Faruqi and Faruqi, LLP, pro hac
vice, Barbara Ann Rohr -- brohr@faruqilaw.com -- Faruqi & Faruqi,
LLP & Joseph I. Marchese -- jmarchese@bursor.com -- Bursor &
Fisher, P.A., pro hac vice.
Whirlpool Corporation, Defendant, represented by Bradley A.
Benbrook -- brad@benbrooklawgroup.com -- Benbrook Law Group,
Cedric D. Logan -- logan@wtotrial.com -- Wheeler Trigg O'Donnell
LLP, pro hac vice, Kenneth E. Stalzer -- stalzer@wtotrial.com --
Wheeler Trigg O'Donnell LLP, pro hac vice & Galen D. Bellamy --
bellamy@wtotrial.com -- Wheeler Trigg O'Donnell LLP, pro hac vice.
WINGED FOOT: "Clune" Sues Over Equity Misappropriation
------------------------------------------------------
Kevin P. Clune, as Executor of the Estate of Barbara B. Clune,
Individually and on behalf of all others similarly situated,
Plaintiff, v. Desmond T. Barry, Jr., George J. Gillespie, III,
Winged Foot Golf Club, Inc. and John Doe Nos. 1-10, Defendants,
Case No. 7:16-cv-04441 (S.D.N.Y., June 13, 2016), asserts a
federal securities fraud claim, New York common law fraud and
breach of fiduciary duty, and seeks damages for violation of the
Securities Exchange Act of 1934.
Plaintiff purchased Winged Foot Golf Club shares at artificially
inflated prices pursuant to materially false and misleading
statements. Shares prices eventually dropped over alleged
misappropriation of shareholder equity.
Plaintiff is represented by:
John Halebian, Esq.
Adam Mayes, Esq.
LOVELL STEWART HALEBIAN JACOBSON LLP
420 Lexington Avenue, Suite 2440
New York, NY 10170
Telephone: (212) 500-5010
Fax: (212) 208-6806
XBIOTECH INC: No Trial Or Other Dates Set in Securities Action
--------------------------------------------------------------
Xbiotech Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on May 13, 2016, for the
quarterly period ended March 31, 2016, that no trial or other
dates have been set in the securities class action lawsuits
against the Company.
The Company said, "On December 1, 2015, a purported securities
class action complaint captioned Yogina Rezko v. XBiotech Inc.,
John Simard, Queena Han and WR Hambrecht & Co., LLC was filed
against us, certain of our officers and directors and the
underwriter for our initial public offering in the Superior Court
for the State of California, Los Angeles County. On December 2,
2015, a purported securities class action complaint captioned Linh
Tran v. XBiotech Inc., John Simard and Queena Han was filed
against us and certain of our officers and directors in U.S.
District Court for the Western District of Texas. The lawsuits are
based on substantially similar factual allegations and purport to
be class actions brought on behalf of purchasers of the Company's
securities during the period from April 15, 2015 through November
23, 2015. The complaint filed in California state court alleges
that the defendants violated the Securities Act of 1933, as
amended (the "Securities Act"), and the complaint filed in federal
court alleges that the defendants violated the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), in each case by
making materially false and misleading statements concerning the
Company's Phase III clinical trial conducted in Europe to assess
Xilonix(TM) as a treatment for colorectal cancer. The California
complaint purports to assert claims for violations of Sections 11,
12(a)(2) and 15 of the Securities Act, and the federal complaint
purports to assert claims for violation of Sections 10(b) and
20(a) of the Exchange Act and Rule 10b-5 promulgated thereunder.
Both complaints seek, on behalf of the purported class, an
unspecified amount of monetary damages, interest, fees and
expenses of attorneys and experts, and other relief."
Both the federal case and the California case are in the early
procedural stages. On February 24th, 2016, following a proceeding
to select a lead plaintiff in the federal case, the court issued
an order appointing Mr. Kresimir Corak as lead plaintiff. The
plaintiff filed an amended complaint in the federal case on April
8th, 2016.
"In the California case, we expect the plaintiffs to file an
amended complaint in May 2016, and we anticipate making certain
procedural motions also in May 2016. No trial or other dates have
been set," the Company said.
XBiotech, Inc. has focused on advancing technology to rapidly
identify and clone antibodies from individuals that have
resistance to disease.
* Fiduciary Rules Impose Higher Standard on Financial Advisers
--------------------------------------------------------------
Jeremy Nobile, writing for Crain's Cleveland Business, reports
that the U.S. Department of Labor's fiduciary rule has left many
financial advisers, even those already doing business by a
fiduciary standard, confused about exactly how their firms may be
impacted.
And while larger outfits, which have more resources at their
disposal and connections to some of the country's biggest broker-
dealers that are actively investigating the nuances of the rule
themselves, may take some solace at this point in knowing clarity
will come over time, smaller operations may be feeling a little
more anxiety about how the ways they do business could change.
"The reality is, these are very vague, general rules," said
Jim Reed, president and founder of Reed Financial Services in
Beachwood. "This could potentially set the industry completely on
its ear. But I think the issue at this point is it's still too
early in the game to define exactly how this affects us."
The fiduciary rule imposes a higher standard on advisers working
on retirement accounts. A driving purpose of the rule is to
require advisers collecting commissions on fee-based investment
products to disclose those to clients by holding them to the
fiduciary standard. It's expected -- designed, really -- to
drastically alter the commission-based business.
Despite some tough opposition by industry groups on Capitol Hill,
many advisers -- particularly those already acting as fiduciaries,
which in the industry means an adviser is making investment
decisions strictly to the benefit of the client, as opposed to
investing in a vehicle because they would collect a commission --
say the change is good because of the transparency it forces into
the industry.
Yet, there is a litany of other effects that could come to pass,
even for existing fiduciaries. That uncertainty is what has some
firms leery about what could happen next.
For one, the rule will make it easier for clients to sue their
advisers if they believe they didn't receive beneficial advice,
notes Scott Matasar, a Cleveland attorney specializing in the
retail securities industry.
So what depth of coverage is necessary? And could the sheer
potential for more lawsuits lead to a jump in premiums for errors
and omission insurance, the professional liability insurance
advisers protect themselves with?
It's certainly possible. But the answer is unclear at this point.
Meanwhile, how to properly employ a best interest contract, which
is an exemption that would still allow advisers to use complex
investment products like annuities that the heightened standard
seem to preclude, is another catalyst.
Those contracts, Mr. Reed said, seem like they could be an
"administrative nightmare."
There seem to be more questions than answers right now.
Joe Kean, chief compliance officer at Vantage Financial Group in
Independence, said these are the types of issues on his mind.
He said he's currently waiting to hear from the firm's broker-
dealer, Cetera Advisor Networks, on how it intends to implement
the new standards. Cetera handles the E&O insurance for any
business Vantage conducts through them.
Say there was some change made on an IRA platform, and there was
some compensation an adviser would receive that pushes them into
implementing that best interest contract exemption -- do the terms
of the agreement between an IRA, the firm or the client shift
who's liable for those changes? Does that open up the potential
for more unexpected lawsuits?
The rule does provide for class-action suits. And while that
seems like it would be rare, Mr. Kean said, the concern may
require firms to increase their levels of insurance. Those are
some of the myriad other convoluted and unforeseen effects that
are yet to be understood.
"If you have some type of umbrella policy, you have to look at
that policy and determine if your firm was somehow subject to a
class-action lawsuit with punitive damages. You have to look at
that coverage and see if that's sufficient," Mr. Kean said. "In
most cases, it probably won't be."
David Kulchar, executive vice president at Oswald Cos. and
director of retirement plan services, said little changes because
the firm already acts as a fiduciary other than some tweaks to
paperwork.
IRA rollovers, for instance, are other items targeted by the rule.
Not only might that come with a commission that must be disclosed
under the fiduciary standard, advisers must prove that the move
truly benefits the client.
Oswald already does that, Mr. Kulchar said. But it's not yet
clear if the forms the firm currently uses still will meet the new
regulations. If not, that's a change that will need made.
* Judges Wrestle with Consumer Injury Issue in Data-Breach Cases
----------------------------------------------------------------
Nicole Hong, writing for The Wall Street Journal, reports that as
data breaches become more widespread, judges around the country
are grappling with a new question: whether hacked companies should
have to compensate customers for breaches that expose credit-card
numbers or other personal information.
The answer, at least so far, has largely been no. While breaches
at companies like Target Corp. and Home Depot Inc. have spawned
dozens of lawsuits from customers blaming them for shoddy computer
security, judges have mostly dismissed these suits at an early
stage, finding that customers couldn't show that the breaches
caused them any actual harm.
In recent years, however, some federal judges in Illinois,
California and elsewhere have started letting these lawsuits
proceed, potentially opening a new frontier for corporate
liability. In some instances, courts are finding that the mere
risk of identify theft stemming from data breaches counts as an
injury that might merit compensation.
"Companies are seeing [these customer lawsuits] as an increasing
threat," said Veta Richardson, president and chief executive of
the Association of Corporate Counsel, a trade group for in-house
corporate lawyers. "The litigation costs can be substantial."
Data breaches have forced judges to wrestle with a new notions of
what it means to suffer an injury. Though cyberattacks against
companies can cause widespread damage, any harm to customers is
often hard to quantify and tough to trace, making it difficult for
them to pursue redress in the courts.
Overall, only 5% of data breaches in the U.S. have led to
lawsuits, but the highest-profile cyberattacks can sometimes spawn
more than a hundred suits, according to a study by law firm Bryan
Cave LLP. It showed more than one-third of the lawsuits in 2015
targeted health companies.
None of these cases has yet gone to trial. Generally, the parties
have either settled early on or the suits have been dismissed.
Target and Home Depot both ended up settling customers' claims
against them but argued in court filings that their stores owed no
legal or contractual obligation to consumers to safeguard their
data.
Even if they don't go to trial, such suits can be costly. When
judges allow class-action lawsuits to progress beyond their
earliest stages, companies typically must turn over reams of
documents and information to the plaintiffs. That process alone
can cost a company millions of dollars.
The main early issue in these lawsuits is whether customers can
show that a data breach injured them personally -- or, in legal
terms, whether they have "standing" to sue for damages. The
plaintiffs are typically individuals who received notices from a
company disclosing that their personal information was compromised
by a data breach.
Companies say having personal data compromised doesn't necessarily
equate to an injury that merits compensation. Even when real harm
occurs, such as when stolen credit-card information is used for
fraudulent purchases, customers often struggle to prove that the
fraud stemmed from a breach at one particular company. What's
more, banks typically reimburse their customers for fraudulent
charges.
So why should companies pay up? Plaintiffs often argue that they
pay for a company's services with expectations their privacy will
be protected, and when that privacy is breached, it means they
overpaid and should be reimbursed.
In a case involving P.F. Chang's China Bistro Inc., two men who
dined at the chain's Northbrook, Ill., location in 2014 were later
notified that customers' credit-card data had been stolen from the
restaurant during a hack. One plaintiff saw fraudulent charges on
his card after visiting the restaurant, so he bought a credit-
monitoring service to protect against identity theft. Another
plaintiff spent "time and effort" monitoring his card statements
after the breach.
P.F. Chang's argued that neither man could prove his data was
compromised, and that any fraudulent charges couldn't be
attributed to the restaurant. A district judge in Chicago
dismissed the case in 2014.
In April, three judges on the Chicago-based Seventh U.S. Circuit
Court of Appeals reinstated the case, ruling that even the
heightened risk of identity theft or fraudulent charges was
"sufficiently imminent" as an injury to allow the lawsuit to
proceed.
In a similar ruling last July against Neiman Marcus, which had
customers' credit-card data stolen by hackers in 2013, Seventh
Circuit judges said victims of the luxury department store's
breach shouldn't have to wait until a fraud occurred before being
allowed to sue.
"Why else would hackers break into a store's database and steal
consumers' private information?" wrote Judge Diane Wood.
"Presumably, the purpose of the hack is, sooner or later, to make
fraudulent charges or assume those consumers' identities."
In those rulings, the Seventh Circuit diverged from other appeals
courts, and experts say that could pave the way for a Supreme
Court review of the issue.
P.F. Chang's and Neiman said they wouldn't comment on pending
litigation.
While judges are letting more cases move past their early stages,
that hasn't resulted in huge payouts for customers. Target
settled with its customers for $10 million, but the payments,
which could range from $40 to over $5,000 per customer, may not be
distributed until next year due to legal delays.
In 2013, a federal judge in California let a data-breach lawsuit
proceed against Adobe Systems Inc., but the case brought the
plaintiffs no money because they failed to find evidence of actual
damage tied to the breach.
* New Overtime Rule May Expose Companies to Class Action Risk
-------------------------------------------------------------
Jackson Lewis P.C., in an article for The National Law Review,
reports that the U.S. Department of Labor's new Final Rule as to
the Fair Labor Standards Act's "white collar" exemptions to
overtime could open employers up to class action liability as
previously exempt employees fail to meet new salary requirements.
On May 18, 2016, President Obama and Secretary of Labor Thomas
Perez announced the Department of Labor's publication of a new
Final Rule governing overtime under the executive, administrative,
and professional exemptions to the FLSA's overtime provisions --
commonly referred to as the "white collar" exemptions.
In brief summary, the new Final Rule, which becomes effective on
December 1, 2016, more than doubles the required salary threshold
for the white collar exemptions to apply, increasing the annual
salary threshold from $23,660 ($455 per week) to $47,476 ($913 per
week). The Final Rule also raises the minimum threshold for an
employee qualify under the "highly compensated employee" exemption
from $100,000 to $134,004 in total annual compensation. Per the
terms of the Final Rule, these thresholds will be automatically
adjusted every three years.
These changes will effectively "un-exempt" large swathes of
employees nationwide -- the Department of Labor estimates over
four million in the first year. As a result, following the
effective date of the Final Rule, larger employers may be
particularly vulnerable to class actions filed by employees who
have been rendered non-exempt by the new salary thresholds. Lower
level managers, administrative employees, and other professionals
working for larger nationwide employers may be ripe for class
certification where the common issue affecting all potential class
members would be the simple question of whether each employee
earns enough compensation to meet the new requirements.
Given these new developments, employers would be well-served to
engage in wage and hour audits to identify possible exposure and
review potential courses of action to address the issue before the
Final Rule goes into effect.
* Ruling Highlights Complexity of Multijurisdictional Class Suits
-----------------------------------------------------------------
Craig Lockwood, Esq., and Vanessa Cotric, Esq., of Osler Hoskin &
Harcourt LLP, in an article for Lexology, report that Canadian
courts are grappling with a number of considerations involved in
multijurisdictional class actions. Justice Perell's recent
carriage decision in a securities class action is one such
example, which involves a discussion of the interplay of relevant
factors when class counsel launch multiple class actions across
the country.
In this carriage fight, the most prominent and contentious element
which strongly influenced Justice Perell's decision was the
interrelationship between the proceedings in British Columbia,
Ontario and Quebec. In fact, this factor was "substantial" and
the "determinative tipping point factor" in Justice Perell's
decision to provisionally grant carriage to the proposed
Representative Plaintiff in one of the Ontario actions, Ms.
Kowalyshyn, and to temporarily stay the proposed class action of
the proposed Representative Plaintiff in the other Ontario action,
Ms. O'Brien, subject to the stay being lifted if one of the
following conditions were met:
Mr. Catucci (the Representative Plaintiff in the proposed class
action in Quebec) or the Defendants bring a motion to stay the
Kowalyshyn Action;
Ms. Kowalyshyn agrees that Ms. O'Brien's action be consolidated
with her action; or
Ms. O'Brien shows strong cause that the temporary stay should be
lifted.
Questions on a Carriage Motion
The questions of significance raised by this carriage motion are
two-fold:
How far the court can and should explore the likelihood of whether
the competing case theories would succeed on the merits and yield
optimum compensation for the putative Class Members; and
The relevance of parallel and multijurisdictional class actions.
Before addressing these questions, Justice Perell summarized the
test for carriage as follows:
"the court will grant carriage to the putative class counsel whose
proposed action in the province is better for the interests of the
putative class members while being fair to the defendants and
while promoting the prime objectives of class proceedings, which
are access to justice for plaintiffs, class members, and
defendants, behavior modification, and judicial economy"
Justice Perell identified and examined the applicability of a list
of 14 non-exhaustive factors established by case law. For the
purposes of this case, Justice Perell added two factors: prospect
of success against the Defendants and the interrelationship of
multijurisdictional class actions.
A Critical Examination of the Qualitative Merits?
In his treatment of the case theories and the factors connected to
it, such as the prospect of success against the Defendants,
Justice Perell characterized such a merits-based analysis as "a
serious feasibility and jurisdictional problem for the court",
holding that such determination "cannot be properly made on a
carriage motion". In determining that class counsel went "far
beyond" substantive and evidentiary arguments that may arise even
at the certification stage, Justice Perell noted that:
"the court on a carriage motion is as likely to predict who will
win the litigation as were the bookies in England who set the odds
at 5000-to-1 that Leicester would win the Premier League"
However, courts can still look at case theories for the limited
purpose of identifying conspicuous or egregious problems, or
readily apparent advantages and disadvantages, that may arise on
the face of the competing theories.
Avoiding a Multiplicity of Proceedings
In situating his decision in the broader context of class actions,
Justice Perell noted that "carriage motions are an aspect of the
larger problem of avoiding a multiplicity of proceedings, which is
a complex problem". Further, Justice Perell upheld judicial
economy and avoidance of a multiplicity of proceedings as
foundational principles of civil procedure and, in turn, class
proceedings.
There are numerous considerations identified in the decision that
are engaged by a multiplicity of proceedings in the class actions
context, such as constitutional law, conflicts of law rules,
policy goals, economics, court parochialism and insularity, lawyer
avarice and lawyer conflicts of interest. Justice Perell
identified "at least six problems", including the absence in
Canada of a mechanism that exists in the United States to
consolidate proceedings that are initiated in several
jurisdictions.
Justice Perell held that the carriage motion was a "camouflaged
stay motion" brought by Ms. O'Brien for her ally Mr. Catucci, who
commenced a global action in Quebec, noting that the purpose of
Ms. O'Brien's Ontario action was "not entirely clear". Justice
Perell found that Ms. O'Brien's Ontario action was likely aimed at
maintaining class size and Class Member loyalty and protecting the
viability and strength of the global Quebec action. In finding
this, Justice Perell held that the multiplicity of proposed class
actions strongly favored granting carriage in Ontario to Ms.
Kowalyshyn.
Justice Perell noted that the ultimate question which requires
litigation and is in the best interests of the Class Members
across Canada and most fair for the Defendants, is how many class
actions are needed to serve the purposes of the class action
regimes across the country.
Take-Aways of this Decision
This carriage decision highlights the complexity of interdependent
factors involved in multijurisdictional class actions and the
weighing of access to justice and judicial efficiency by the
courts in exercising their discretion to effectively manage class
actions across Canada. It also demonstrates the court's
willingness to take an expansive view of the overall proceedings,
both jurisdictionally and substantively, with a view to assessing
the best interests of the class.
* SA Gold Mining Cos. Say Single Cases Better Than Class Action
---------------------------------------------------------------
Franny Rabkin, writing for BDlive, reports that single test cases,
rather than a class action, would be a better way for mineworkers
suffering from silicosis to establish whether gold mining
companies are liable to pay them compensation, said counsel for
Anglo American SA in the Johannesburg High Court on June 23.
In six separate applications, gold mining companies were applying
for leave to appeal against the landmark silicosis class action
certification judgment, which paves the way for billions of rand
in claims by former gold mine workers suffering from silicosis and
tuberculosis.
The size and scope of the class action certified by the court in
May is unprecedented: if the lawsuit is to go ahead on the basis
of the High Court's order, it will be against almost all the major
mining companies involved in gold mining in SA since 1965,
including their parent companies.
And it will cover their conduct over years -- from 1965 to last
year. It will also cover both silicosis and tuberculosis
sufferers.
Legal teams representing the mineworkers said the certification
judgment is not appealable because it only deals with the
procedure that should be followed in the case, rather than
deciding on the merits whether the companies are liable.
But Anglo American SA's counsel, Michael Kuper SC, said an appeal
court would consider the fact that everyone -- all the parties to
the case and the court -- had acknowledged the "gigantic scope" of
the class action, the novelty and the complexity of the issues
involved and that this class action was "unprecedented in our
law".
He said the legal issues common to all the potential claimants
would be better decided by test cases -- brought by individual
workers, rather than a class -- which would then set legal
precedent for those that came later.
Mr. Kuper argued that the court had been called on to make bold
and far-reaching findings. But that a higher court might well see
things differently.
Chris Loxton SC for Harmony Gold said the court had been wrong to
find that it was in the interests of justice to certify a class
action where the issues were "so multifarious, and there are so
many of them". All it would mean for the trial court was an
"unmanageable state of affairs", which would not advance justice.
Mr. Kuper said the court had been rightfully concerned about
whether the mineworkers would be able to pursue their claim
without a class action.
But if the cases of the mineworkers were "in truth,
individualistic", it would not help the mineworkers or the mines
to put them all together into a single massive class action. Nor
would it progress justice, he said.
By lunch time the mineworkers' legal teams were yet to argue.
This carriage decision highlights the complexity of interdependent
factors involved in multijurisdictional class actions and the
weighing of access to justice and judicial
* SA Gold Mining Cos. Balk at Ruling on Damages for Widows
----------------------------------------------------------
Dewald van Rensburg, writing for City Press, reports that
a major part of the class certification judgment was a piece of
common law development meant to massively increase the entitlement
to damages from mining companies for widows and children of
deceased mine workers.
It came as a surprise to everyone involved and could have huge
ramifications for all other personal injury claims involving a
claimant who dies.
All the mines are attacking this part of the judgment in their
appeals against the class action, but it is unclear just how
meaningful it would turn out to be in this case.
The case would most likely end in an settlement, not a court order
on damages, so the widows' claims would not have relied on the
legal rules, said the mine workers' lawyer, Richard Spoor.
There is no rand-and-cent claim before the courts yet, but when it
comes, it will consist of legally distinct categories: lost
earnings, medical expenses and "general damages", such as pain and
suffering and loss of quality of life.
General damages are not inheritable, so when a mine worker dies
and his dependants join the class action, they cannot sue for it -
- or for future medical expenses.
That would make widows' claims before a court far smaller than for
living mine workers.
The law as it stood before the judgment meant that the total claim
against the mines was constantly falling as mine workers die and
their general damage claims die with them.
Now the claims of those who die, and have died since 2012, are
kept intact.
The common law only allows general damages claims to keep going
after death if the court case has already reached a certain point.
In legalese, it is called litis contestatio -- the point where
pleadings are finished.
Judge Phineas Mojapelo called this cutoff arbitrary and unjust,
and instead ruled that the real cutoff should be August 2012, when
the court application for a class action was first filed.
He shifted the rule, but also implicitly criticized its very
existence.
Judge Mojapelo couched the decision as a way to compensate the
dependants of a mine worker for the burden of care they would have
borne. That is not something that could normally form part of
general damages.
This still doesn't mean that widows of workers who died before the
application can claim general damages.
"I respect that the industry has a legitimate interest in
challenging the transmissibility issue," Mr. Spoor said.
"It is completely novel and new. I don't think it makes a huge
difference [to our case]."
Most of the claimants were old, and the dependants of those who
had already died would have a hard time proving they had
silicosis, said Mr. Spoor.
"So not many widows will have a claim. It will be a small class.
The intention was to have them benefit, but we were not
necessarily going to label it 'general damages'. [The judgment]
now gives that a legal justification."
Despite the mines publically favoring a settlement, they have
strongly attacked this part of the judgment.
Anglo American SA said "the learned judges should have held that
such care workers would not necessarily have any legal entitlement
to . . . the deceased's claim for general damages".
According to AngloGold, the court "erred in finding that the
deceased's heirs would lose . . . claims which they never had".
Gold Fields likewise argued that "caregivers and families should
have no claim to amounts in respect of such personal damages
[general damages]".
The practical effect of keeping general damages claims alive was
illustrated by the original silicosis case in 2004, which made the
class action possible.
In that case, Mankayi vs AngloGold, a silicotic mine worker sued
his former employer for R2.6 million. Of that, half was for
future medical expenses, which a widow would not get.
Another R500 000 was for general damages. In effect, that claim
would have fallen by 72% if Mankayi's widow pursued it after his
death.
*********
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
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Christopher G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2016. All rights reserved. ISSN 1525-2272.
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