/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/160825.mbx C L A S S A C T I O N R E P O R T E R Thursday, August 25, 2016, Vol. 18, No. 170 Headlines 2.7 AUGUST: Accused by "Corona" Suit of Not Paying Overtime Wages AECO OF LOUISIANA: Ortiz Seeks to Recover Unpaid Wages Under FLSA AEGERION PHARMACEUTICALS: Steinberg Questions Prop. Sale to QLT ALBANY MOLECULAR: Must Defend Against "Gauquie" Class Suit ALL PROFESSIONAL: Sanchez Seeks Overtime Wages Under FLSA ALLSCRIPTS HEALTHCARE: No Trial Date Scheduled in Physicians Case AMERICAN OSTEOPATHIC: Doctors File Suit Over Membership Fees AMERIGAS PROPANE: Judge Revives All-South Subcontractors' Suit APPLE INC: Wants Appeals Court to Toss Path Privacy Class Action ARAMARK FOOD: Court Denies Motion to Reconsider Case Dismissal BANK OF AMERICA: Court Denies Motion to Amend Interlocutory Order BANNER HEALTH: Physician Files Data Breach Class Action BERKELEY, CA: "Law" Case Plaintiffs May File 4th Amended Suit BFI WASTE: "Turner" Suit Seeks Unpaid Overtime Under FLSA BIRMINGHAM, AL: Sept. Hearing Set for Police Dept's Appeal BMW OF NORTH AMERICA: "DiMartino" Suit Dismissed as Time-Barred BORGATA HOTEL: Distribution of Tournament Proceeds Affirmed CALIFORNIA PHYSICIANS' SERVICE: Court Trims Claims in "Escalante" CALIFORNIA HIGHWAY: Class Cert. Ruling in "Schmidt" Affirmed CANADA: Save Oro Mulls Class Action Against Oro-Medonte Township CASH BIZ: Texas Appeals Court Sends "Henry" Case to Arbitration CETCO ENERGY: "England" Suit to Recover Overtime Pay CHARTER COMMUNICATIONS: "Cova" Suit Stays in E.D. Missouri CHEVRON: Obtains Favorable Ruling in Amazon Oil Pollution Case CHILDREN'S PLACE: Court Approves Class Action Notice in "Essex" CITIGROUP INC: Court Reaffirms Ruling on Cy Pres Designees COMCAST CORP: Court Sends "James" Suit to Arbitration CONAIR CORP: Court Limits Definition of Class in "Czuchaj" Suit CONNECTICUT: DCF Makes Progress Years Following Class Action CR BARD: "Spencer" Suit Consolidated in IVC Filters Products MDL CR BARD: "Watson" Suit Consolidated in IVC Filters Products MDL CREATIVE RENOVATIONS: Garcia Seeks to Recover Unpaid Overtime CREDIT ONE BANK: "Beattie" TCPA Action Stayed Pending Arbitration D.R. HORTON: "Vitale" Case Goes Back to State Court DNC SERVICES: Plaintiff's Attorney in Fraud Class Action Dies DUMONT AIRCRAFT: Bid to Transfer Suit to Delaware Denied EDEN MANAGEMENT: Plaintiffs May Amend Suit Over Medicaid Program EMBRAER SA: Faces Securities Class Action in New York ENERGY TRANSFER: Appeal in Regency Merger Litigation Pending ENOTECA INC: "Beresheim" Suit to Recover Overtime Pay EVERBANK FINANCIAL: Robbins Arroyo Investigates Acquisition FAIRCHESTER SNACKS: Misclassifies Drivers, "Rhodes" Suit Asserts FCA US LLC: 6th Cir. Affirms Judgment on Pleadings FIAT CHRYSLER: Sept. 27 Lead Plaintiff Motion Deadline Set FINANCIAL AMERICAN: Sued Over Payment of Extraordinary Dividend FIRST NATIONAL: Negotiating Settlement in "Antonik" Suit FIRST NATIONAL: Negotiating Settlement in "Saxe" Suit FLAGSHIP SB: "Garcia" Suit Seeks Overtime, Spread-of-Hours Pay FORD MOTOR: Wins Summary Judgment in Suit Over 2005 SUVs GOLDMAN SACHS: Still Defends Against Cobalt Securities Case GOLDMAN SACHS: Wants Intervenors' Claims in Employee Suit Nixed GOLDMAN SACHS: Defending Suit Over ERISA Employee Benefit Plans GOLDMAN SACHS: Updates on Municipal Securities Matters GOLDMAN SACHS: Updates on US Treasury Securities Litigation GOLDMAN SACHS: Still Defends Interest Rate Swap Antitrust Suit GOLDMAN SACHS: Still Defends ISDAFIX-Related Litigation HAIN CELESTIAL: Faces "Spadola" Securities Class Action HAWAIIAN ELECTRIC: Consolidated Merger Class Suit Remains Pending HB MARBLE: Accused by "Ramirez" Suit of Not Paying Overtime Wages HERR FOODS: Court Rejects Bid to Strike Class Allegations HOMESERVE USA: Fails to Pay Overtime Under FLSA, Montero Alleges HUGOTON ROYALTY TRUST: Non-Binding Mediation Set for September 1 HYLAND'S INC: Court Adopts Jury Verdict Tossing Consumer Claims INCONTACT INC: Court Consolidated 3 Class Actions INOVALON HOLDINGS: Court Consolidated Xiang and Patel Actions INSTITUTE OF BAKING: Court Grants Motion for Clarification JOAL RESTAURANT: Minimum Wages Recovery Sought in "Peters" Suit JOHNSON & JOHNSON: 2,900 DePuy ASR(TM) Claims Pending at July 3 JOHNSON & JOHNSON: 2 Baby Powder Class Suits Pending in Illinois JOHNSON & JOHNSON: Must Defend Against Contact Lens Case JOHNSON & JOHNSON: Class Action Over XARELTO(R) Pending KERYX BIOPHARMACEUTICALS: Defending 2 Class Suits in New York KING COUNTY, WA: Faces Class Action Over $10 Jury Duty Pay KORONA PAINTING: "Fillipas" Suit Seeks Overtime Pay LADENBURG THALMANN: Court Denied Underwriters' Motion to Dismiss LEGGETT & PLATT: Petition for Rehearing Pending LIFEWAY FOODS: Loses Bid to Strike Class Allegations in "Figy" LIGAND PHARMACEUTICALS: Class Action Appeal Remains Pending LINCOLN NATIONAL: Defending "Glover" Class Suit LIONS GATE: Six Investors Suits Filed Over Starz Deal LUCKY RESTAURANT: Oster Seeks Unpaid Minimum Wages Under FLSA LYFT INC: Refuses to Comply With Statutes, Southern Transpo Says MAC'S CHILDREN: "Rodriguez" Suit Seeks Overtime, Minimum Pay MARVELL TECHNOLOGY: Saratoga Advantage Trust's Suit Dismissed MASTEC INC: Seeks to Dismiss "Wrigley" Amended Complaint MATHESON TRI-GAS: Van Kempen Accord Denied for Insufficient Info MCDONALDS CORP: Summary Judgment Bid in "Salazar" Granted in Part MCDONALD'S CORP: Plaintiffs Bar Eyes Franchise Owners MDL 1616: Objections to $835MM Dow Class Settlement Overruled MDL 2516: Court Narrows Claims in Buyers' Amended Complaint MDL 2580: Court Narrows End-Payor Purchaser Plaintiffs' Suit MEMPHIS, TN: Police Dep't Settles Class Action Over Promotions MG WHOLESALE: "Yu" Suit to Recover OT, Minimum Wages MOISES GONZALEZ: "Rivera" Suit Seeks Overtime Wages Under FLSA MOLINA HEALTHCARE: Faces Class Action Over TCPA Violation NAT'L FOOTBALL: Class Action Mulled Over Hall of Fame Non-Game NATIONSTAR MORTGAGE: Court Narrows Claims in "Burke" Suit NEIL JONES: Settlement in "Valdez" Case Has Final Approval NELNET INC: Court Grants Motion to Dismiss, Wants Suit Revised NETVISION: Customer Data Class Action Dismissed, Parent Says NEW MIAMI, OH: Speeders' Attorney Seeks $3MM Class Action Award NEW RESIDENTIAL: To Defend Against Securities Class Action NISSAN NORTH AMERICA: Court Denies Plaintiff's Discovery Bid NOTIS GLOBAL: Final Fairness Hearing Moved to Sept. 22 NOVA HARDBANDING: "Mishler" Suit Seeks Overtime Pay OLE MEXICAN FOODS: Settlement in "Guttmann" Wins Final Approval OVASCIENCE INC: Co-Lead Plaintiffs File Amended Complaint PACIFIC PROCESS: Faces Class Action Over FLSA Violation PARKING REVENUE: Unpaid Parking Fees Are Debts, 7th Cir. Says PINNACLE FOODS: "Thornton" Class Action Survives Dismissal Bid PREMERA BLUE: Court Narrows Claims in Customer Data Breach Suit PROVIDE COMMERCE: Plaintiff Attorney's Fees & Costs Affirmed QUESTAR CORP: 4 Lawsuits Over Merger Deal Still Pending RELYPSA INC: "Zavolas" Seeks to Block $1.53 BB Merger Deal REPUBLIC SERVICES: Fails to Pay Proper OT, "Taylor" Suit Claims ROCKWELL INT'L: June 1, 2017 Claims Filing Deadline Set RONKA RESTAURANT: Polanco Seeks Unpaid Overtime Under FLSA SAN JOSE, CA: Police Dep't Faces Class Action Over Gay Sex Stings SEAWORLD PARKS: Court Narrows Claims in Anderson and Conway Suit SERVIS ONE: Court Trims Claims in "McCamis" Class Suit SHARKNINJA OPERATING: "Rosenthal" Dismissed with Leave to Amend SHELBY COUNTY: Court Narrows Claims in Suit v. School Board SIRIUSXM: Settles Robo-Dialing Class Action for $35 Million SMARTE CARTE: Court Dismisses "McCollough" Privacy Complaint SPECIALIZED LOAN: Court Narrows Claims in "Quinn" Amended Suit SPROUTS FARMERS: Motion to Remand Under Consideration SPROUTS FARMERS: 4 "Phishing" Scam Actions Stayed SQUARE INC: Levin Appeals Court's Order Compelling Arbitration SUNTRUST BANKS: Non-Fiduciary Defendants Seek Summary Judgment SUNTRUST BANKS: Discovery Ongoing in Mutual Funds Class Actions SUNTRUST BANKS: Motion to Dismiss "Felix" Suit Still Pending SYNCHRONY FINANCIAL: Court Grants Bid to Dismiss "Kincaid" Suit SYNGENTA CORP: "Claas" Files Suit Over GMO Corn Trait TERE RESTAURANT: "Sandoval" Suit Seeks OT, Spread-of-Hours Pay TBC RETAIL: Court Sends Cole Claims to Arbitration TIBURON FINANCIAL: "Briles" Settlement Granted Preliminary OK TILE SHOP: Class and Sub-Class Certified in Retirement Fund Case TIME INC: Appeal from Dismissal of "Coulter-Owens" Suit Underway TIME INC: Motion to Dismiss "Perlin" Video Privacy Suit Underway TRANS UNION: Court Grants Class Certification Bid in "Larson" VALIDITY RESEARCH: Faces TCPA Class Action Over Autodialer VIVUS INC: Plaintiffs' Appeal Remains Pending VOLKSWAGEN AG: Court Aims to Speed Up Emissions Litigation VOLKSWAGEN AG: DoJ Urged to Raise Compensation for Car Owners WAHL CLIPPER: "Javers" Sues Over False Advertisement WAHLBURGERS: Ex-Employees File Class Action Over Labor Violations WALKER BROS: Judge Dismisses Waiters' Class Action Over Tips WHEELER TRUCKING: Court Declines to Alter Remand Order WHITEWAVE FOODS: Faces Securities Class Action in Colorado WIDENER UNIVERSITY: 3rd Cir. Affirms Class Certification Denial WILLIAMS-SONOMA: Court Trims Claims in "Rushing" Suit WPX PRODUCTION: Court Denies Renewed Bid for Class Certification XCEL ENERGY: Motion Seeking Clarification Remains Pending ZAFGEN INC: Court Dismisses "Brenan" Suit, Denies Bid to Amend * D&O Coverage Down 16.5% Despite Class Action Hike * Four Cases Illustrate IC Structure Implementation Failures ********* 2.7 AUGUST: Accused by "Corona" Suit of Not Paying Overtime Wages ----------------------------------------------------------------- DANIELLE CORONA, an individual v. 2.7 AUGUST APPAREL, INC., a California Corporation; KYUNG JIN RHO, an individual; and DOES 1 through 100, inclusive, Case No. BC630778 (Cal. Super. Ct., Los Angeles Cty., August 16, 2016), accuses the Defendants of failing to pay overtime wages pursuant to the Labor Code. 2.7 August Apparel, Inc., is a California Corporation with its principal places of business located in Los Angeles. Kyung Jin Rho is a resident of California and who allegedly exercised control over the Plaintiff's wages, hours, and working conditions. The Plaintiff is uncertain as to the names and identities of the Doe Defendants. The Plaintiff is represented by: Thomas M. Lee, Esq. LEE LAW OFFICES, APLC 3435 Wilshire Blvd., Suite 2400 Los Angeles, CA 90010 Telephone: (213) 251-5533 Facsimile: (213) 251-5534 E-mail: leethomas.esq@gmail.com - and - Barry G. Florence, Esq. LAW OFFICES OF BARRY G. FLORENCE 3435 Wilshire Blvd., Suite 2000 Los Angeles, CA 90010 Telephone: (213) 232-4969 Facsimile: (213) 232-4890 E-mail: bgf@bgflawoffices.com AECO OF LOUISIANA: Ortiz Seeks to Recover Unpaid Wages Under FLSA ----------------------------------------------------------------- WILMER ORTIZ, on behalf of himself and other persons similarly situated v. AECO OF LOUISIANA, LLC, Case No. 2:16-cv-13876 (E.D. La., August 16, 2016), seeks to recover from the Defendant alleged unpaid wages, interest, liquidated damages, and attorneys' fees and costs pursuant to the Fair Labor Standards Act and on behalf of the Plaintiff and other similarly situated employees, who worked for the Defendant during the past three years. AECO of Louisiana, LLC, is a corporation organized under the laws of Louisiana with its principal place of business in New Orleans. AECO installs wall systems for commercial projects in various states, including Florida, Louisiana, and Texas. The Defendant's services include the installation of drywall. The Plaintiff is represented by: Roberto Luis Costales, Esq. Emily A. Westermeier, Esq. ROBERTO LUIS COSTALES LAW OFFICE 3801 Canal Street, Suite 207 New Orleans, LA 70119 Telephone: (504) 914-1048 Facsimile: (504) 272-2956 E-mail: costaleslawoffice@gmail.com emily.costaleslawoffice@gmail.com - and - William H. Beaumont, Esq. WILLIAM H. BEAUMONT LAW 3801 Canal Street, Suite 207 New Orleans, LA 70119 Telephone: (504) 483-8008 E-mail: whbeaumont@gmail.com AEGERION PHARMACEUTICALS: Steinberg Questions Prop. Sale to QLT --------------------------------------------------------------- CHAILE STEINBERG, Individually and On Behalf of All Others Similarly Situated v. AEGERION PHARMACEUTICALS, INC., DAVID SCHEER, SOL J. BARER, ANTONIO M. GOTTO JR., SANDFORD D. SMITH, PAUL G. THOMAS, ANNE M. VANLENT, JORGE PLUTZKY, DONALD K. STERN, QLT INC., and ISOTOPE ACQUISITION CORP., Case No. 1:16-cv-11668- GAO (D. Mass., August 16, 2016), stems from a proposed transaction announced on June 15, 2016, pursuant to which Aegerion will be acquired by QLT Inc. through its wholly-owned subsidiary, Isotope Acquisition Corp. On June 14, 2016, Aegerion's Board of Directors caused the Company to enter into an agreement and plan of merger. Pursuant to the terms of the Merger Agreement, each outstanding share of Aegerion common stock will be exchanged for 1.0256 shares of Parent common stock. On August 8, 2016, the Defendants issued materially incomplete and misleading disclosures filed with the United States Securities and Exchange Commission in connection with the Proposed Transaction, the Plaintiff alleges. The Plaintiff contends that the Registration Statement is deficient and misleading in that it fails to provide adequate disclosure of all material information related to the Proposed Transaction, in violation of the Securities Exchange Act of 1934. Aegerion is a Delaware corporation and maintains its principal executive offices in Cambridge, Massachusetts. The Company is a biopharmaceutical company dedicated to the development and commercialization of innovative therapies for patients with debilitating rare diseases. The Individual Defendants are directors and officers of the Company. The Company's products include JUXTAPID(R) and MYALEPT(R). QLT Inc. is incorporated under the laws of British Columbia. The Plaintiff is represented by: Mitchell J. Matorin, Esq. MATORIN LAW OFFICE, LLC 18 Grove Street, Suite 5 Wellesley, MA 02482 Telephone: (781) 453-0100 Facsimile: (888) 628-6746 E-mail: mmatorin@matorinlaw.com - and - Seth D. Rigrodsky, Esq. Brian D. Long, Esq. Gina M. Serra, Esq. Jeremy J. Riley, Esq. RIGRODSKY & LONG, P.A. 2 Righter Parkway, Suite 120 Wilmington, DE 19803 Telephone: (302) 295-5310 E-mail: sdr@rl-legal.com bdl@rl-legal.com gms@rl-legal.com jjr@rl-legal.com ALBANY MOLECULAR: Must Defend Against "Gauquie" Class Suit ---------------------------------------------------------- Albany Molecular Research, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 5, 2016, for the quarterly period ended June 30, 2016, that the court has denied the defendants' motion to dismiss the Gauquie class action lawsuit. On November 12, 2014, a purported class action lawsuit, John Gauquie v. Albany Molecular Research, Inc., et al., No. 14-cv- 6637, was filed against the Company and certain of its current and former officers in the United States District Court for the Eastern District of New York. An amended complaint was filed on March 31, 2015. The amended complaint alleges claims under the Securities Exchange Act of 1934 arising from the Company's alleged failure to disclose in its August 5, 2014 announcement of its financial results for the second quarter of 2014 that one of the manufacturing facilities experienced a power interruption in July 2014. The amended complaint alleges that the price of the Company's stock was artificially inflated between August 5, 2014 and November 5, 2014, and seeks unspecified monetary damages and attorneys' fees and costs. The defendants submitted on July 29, 2015 a motion to dismiss lead plaintiffs' amended complaint. Lead plaintiffs submitted an opposition on October 7, 2015, and defendants submitted a reply on November 20, 2015. On July 26, 2016, the court denied the defendants motion to dismiss. The Company is evaluating its options with respect to further proceedings regarding this matter and has updated its insurers as to this development. ALL PROFESSIONAL: Sanchez Seeks Overtime Wages Under FLSA --------------------------------------------------------- FELIX ALEXANDER PEREZ SANCHEZ and all others similarly situated, the Plaintiffs, v. ALL PROFESSIONAL CREW SERVICES INC., and JEMMY C. RODRIGUEZ, the Defendants, Case No. 1:16-cv-23546-FAM (S.D. Fla., Aug. 17, 2016), seeks to recover double damages and reasonable attorney fees from Defendants, jointly and severally, pursuant to the Fair Labor Standards Act (FLSA). The Defendants allegedly refused to pay Plaintiff's overtime wages as required by the FLSA. The Defendants also recklessly failed to investigate whether their payroll practices were in accordance with the FLSA. All Professional is engaged in the business services industry and located in Miami, Florida. The Plaintiff is represented by: J.H. Zidell, Esq. J.H. ZIDELL, P.A. 300 71st Street, Suite 605 Miami Beach, FL 33141 Telephone: (305) 865 6766 Facsimile: (305) 865 7167 E-mail: ZABOGADO@AOL.COM ALLSCRIPTS HEALTHCARE: No Trial Date Scheduled in Physicians Case ----------------------------------------------------------------- Allscripts Healthcare Solutions, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 5, 2016, for the quarterly period ended June 30, 2016, that no trial date has been scheduled in the Physicians Healthsource, Inc.'s class action. The Company said, "On May 1, 2012, Physicians Healthsource, Inc. filed a class action complaint in U.S. District Court for the Northern District of Illinois against us. The complaint alleges that on multiple occasions between July 2008 and December 2011, we or our agent sent advertisements by fax to the plaintiff and a class of similarly situated persons, without first receiving the recipients' express permission or invitation in violation of the Telephone Consumer Protection Act, 47 U.S.C. Sec. 227 (the "TCPA"). The plaintiff seeks $500 for each alleged violation of the TCPA; treble damages if the Court finds the violations to be willful, knowing or intentional; and injunctive and other relief. Allscripts answered the complaint denying all material allegations and asserting a number of affirmative defenses, as well as counterclaims for breach of a license agreement. After plaintiff's motion to compel arbitration of the counterclaims was granted, Allscripts made a demand in arbitration where the counterclaims remain pending. Discovery in the proposed class action has now concluded." "On March 31, 2016, plaintiff filed its motion for class certification. On May 31, 2016, we filed our opposition to plaintiff's motion for class certification, and simultaneously moved for summary judgment on all of plaintiff's claims. Plaintiff submitted its reply memorandum in support of its motion for class certification and its opposition to our motion for summary judgment on July 14, 2016 and July 21, 2016, respectively. Briefing on plaintiff's class certification motion, accordingly, is complete and currently pending before the Court. Our reply brief in support of our motion for summary judgment was to be filed on August 11, 2016. No trial date has been scheduled." AMERICAN OSTEOPATHIC: Doctors File Suit Over Membership Fees ------------------------------------------------------------ Jessica Karmasek, writing for Legal Newsline, reports that a group of osteopathic doctors are suing the American Osteopathic Association -- the main representative organization for such physicians in the United States -- alleging the requirement that they purchase memberships at a cost of nearly $700 is illegal. Plaintiffs Albert Talone, Craig Wax, Richard Renza and Roy Stoller, all DOs, filed their class action lawsuit in the U.S. District Court for the District of New Jersey Aug. 1. The plaintiffs seek to recover millions of dollars in annual membership fees that the doctors have been forced to pay for years to the AOA. The money is paid as a condition of obtaining and maintaining physicians' board certification in any advanced medical specialty. "The revenues the AOA boards receive from the various fees paid by Plaintiffs and the Class for their board certifications are far in excess of the actual operating expenses attendant to the board certification process," the doctors wrote in their 22-page complaint. "Nevertheless, the AOA has notified Plaintiffs and the Class that even though they have already paid these fees and have been qualified and recognized as board certified medical specialists, their board certifications will be invalidated and cancelled unless, in addition, they also purchase annual membership in the AOA." The plaintiffs argue the annual membership "serves no purpose" and "has no actual connection" with AOA board certification. Wayne Mack -- WAMack@duanemorris.com -- one of the Duane Morris LLP attorneys helping to represent the plaintiffs and who is co- head of the firm's antitrust practice, said antitrust laws prohibit certain "tying" arrangements in which consumers who are interested in purchasing one product are forced to also buy a second. "In this case, physicians who completed their residencies in osteopathic programs were locked in to obtaining board certification through the AOA," Mr. Mack said in a statement, adding that the AOA had a monopoly on board certification for these osteopathic doctors. In order to keep their board certifications, the doctors were forced to purchase annual memberships that currently amount to $683 per year for most doctors. By tying the board certification to the purchase of annual memberships, the AOA generated tens of millions of dollars in assessments across the profession. "There are considerable costs of doing business as a board certified DO, and doctors routinely pay them," said fellow Duane Morris attorney James Greenberg -- jgreenberg@duanemorris.com -- who for 20 years served as general counsel to the New Jersey Association of Osteopathic Physicians and Surgeons. They include hundreds of dollars of fees charged by the AOA for board certification, including testing fees for certification in such specialties as anesthesiology, dermatology and obstetrics. "But there is no legitimate reason why a physician should also have to purchase an annual membership in the AOA and pay additional hundreds of dollars a year to the AOA in dues on top of the costs of certification," Mr. Greenberg said in a statement. The plaintiff class is headed by Mr. Talone, a Burlington, N.J., osteopathic physician who is certified by the American Osteopathic Board of Family Physicians. He represents a proposed class of some 32,000 DOs nationally affected by the AOA membership rule. Duane Morris attorney Seth Goldberg -- SAGoldberg@duanemorris.com -- also is helping represent the plaintiffs. In a statement, the Chicago-headquartered AOA said it had not yet been served, so its ability to comment was limited. "All AOA policies, including those related to board certification, have been developed by members and are designed to meet the needs of a complex healthcare environment, the growing profession of osteopathic medicine and our physician members," AOA CEO Adrienne White-Faines said on Aug. 2. "As the AOA assesses and reviews all policies, this policy is currently under review, including recent discussions at our House of Delegates Annual Business Meeting." She added, "AOA board certification services are legally appropriate as a benefit of membership." According to the docket, Judge Noel Lawrence Hillman at the federal court's Camden location has been assigned the case. AMERIGAS PROPANE: Judge Revives All-South Subcontractors' Suit -------------------------------------------------------------- Judge Harvey L. Jay of the Florida Court of Appeals reversed the trial court's final order that dismissed with prejudice an amended complaint for lack of subject matter jurisdiction. That case is captioned, ALL-SOUTH SUBCONTRACTORS, INC., Appellant, v. AMERIGAS PROPANE, INC. and AMERIGAS PROPANE, L.P., Appellees, Civil Action No. 1D15-5862 (Fla. App.). The Appeals Court also reversed the lower court's ruling that granted Defendants' motion to compel arbitration. On December 3, 2014, All-South Subcontractors, Inc., filed an Amended Class Action Complaint naming as defendants Appellees Amerigas Propane, Inc., and Amerigas Propane, L.P., and alleging Appellees' practice of charging "Fuel Recovery Fees" to its customers, including Appellant and other Florida customers of Appellees, violates the Florida Deceptive and Unfair Trade Practices Act. Appellant also pleads a cause of action for unjust enrichment. According to the factual allegations of the amended complaint, Appellant is "a small commercial roofing business," and Appellees are "the largest seller[s] of propane in the United States." In 2010, while working on the roof of the National Flight Academy in Pensacola, Florida, Appellant purchased propane from Appellees. Appellees filed a motion to dismiss the amended complaint for lack of subject matter jurisdiction, to compel arbitration, and to dismiss the complaint for failure to state a cause of action. In its motion, Appellees argue "the putative class action must be dismissed because the dispute between the parties is governed by an arbitration agreement between Amerigas and its customers, including All-South, which requires such disputes be resolved through binding arbitration." The trial court ruled that particularly in the context of sophisticated litigants that the case is not a consumer issue from the Plaintiff's side and that the arbitration provision is enforceable and was assented to by the Plaintiff, and the case be dismissed on that basis only." On appeal, Appellant asserts that the bulk mailer was not a valid written agreement to arbitrate the earlier transaction because, fundamentally, Appellees did not reveal how Appellant could have anticipatorily assented to the written "Terms and Conditions" it had never seen prior to the receipt of the 2012 mailer. In his Opinion dated August 11, 2016 available at https://is.gd/idNNaJ from Leagle.com, Judge Jay hold that as a matter of law, Appellant did not "assent" to arbitrate the 2010 claims with Appellees. The 2010 invoice did not have the "Terms and Conditions" appended to it. Consequently, Appellant did not assent to them by leasing the propane tank. Moreover, Appellant's mere receipt of the "Terms and Conditions" in 2012 did not evidence a mutual intent that they be applied retroactively to the 2010 invoice. The action is remanded to the trial court for further proceedings consistent with the opinion. All South Subcontracotrs, Inc. is represented by Charles Philip Hall, Esq. -- phall@twwlawfirm.com -- and J. Phillip Warren, Esq. -- pwarren@twwlawfirm.com -- TAYLOR, WARREN & WEIDNER, P.A. Amerigas Propane, Inc. and Amerigas Propane LP are represented by Robert Palmer, Esq. -- rob@robpalmerlaw.com -- WADE, PALMER & SHOEMAKER, P.A. APPLE INC: Wants Appeals Court to Toss Path Privacy Class Action ---------------------------------------------------------------- Wendy Davis, writing for MediaPost, reports that Apple wants a federal appellate court to overturn a recent decision granting class-action status to a group of mobile users who say their address books were accessed without permission by the app developer Path. In papers quietly filed late last month, the company asks the 9th Circuit Court of Appeals for permission to immediately appeal the "manifestly erroneous" order that granted class-action status to nearly half a million people who downloaded the Path app to their iPhones, iPads and iPod Touch devices. The battle dates to 2012, when allegations surfaced that Path accessed and downloaded Apple users' address books without their knowledge. The accusation against Path resulted in charges by the Federal Trade Commission, which the company settled by agreeing to create a comprehensive privacy policy. Soon after reports emerged about Path, a researcher also accused Hipster (later acquired and shut down by AOL) of also scooping up people's address books without their permission. Observers subsequently accused other companies -- including Twitter, Yelp and Foodspotting -- of downloading and storing users' address books. Those other companies reportedly asked people for permission to access their address books, in order to help them connect with friends who also used the service. But Twitter, Yelp and the other developers allegedly didn't specify that they would store the data. In late 2012, iPhone user Marc Opperman, and a group of other consumers, sued a host of app developers and Apple. The complaint against Apple alleged that the company's marketing materials -- including ads, blog posts and corporate statements -- misled consumers into believing that the company's devices would keep personal data secure. The consumers also say that Apple enabled Path to violate their privacy. The lawsuit specifically alleges that the address-book uploads amount to "intrusion upon seclusion," which is actionable in California. U.S. District Court Judge Jon Tigar in the Northern District of California ruled last month that approximately 480,000 Apple users who downloaded the Path app could proceed as a class against both Path and Apple. He hasn't yet ruled on whether the users can also bring class-actions against other developers. Apple now says the matter shouldn't move forward against itself (or any of the other defendants) as a class-action, arguing that questions about a claim for "intrusion upon seclusion" requires case-by-case decisions. "Binding California case law makes clear that this claim requires an assessment of the subjective privacy expectations and mental anguish of each individual class member," Apple argues in papers filed with the 9th Circuit Court of Appeals. "If not immediately corrected, the district court's errors will likely be repeated when plaintiffs move to certify multiple additional classes," the company adds. "There is no reason to waste the time and resources of both the district court and the parties by litigating putative class claims when certification turns on manifestly erroneous legal conclusions." ARAMARK FOOD: Court Denies Motion to Reconsider Case Dismissal -------------------------------------------------------------- District Judge Anne E. Thompson of the United States District Court for the District of New Jersey denied Plaintiff Brian Keith Bragg's motion for reconsideration in the case captioned, BRIAN KEITH BRAGG, et al., Plaintiffs, v. ARAMARK FOOD SERVICE, et al., Respondents, Case No. 13-4088 (AET-LHG) (D.N.J.). On July 2, 2013, Plaintiff submitted a civil complaint alleging violations of his constitutional rights pursuant to 42 U.S.C. Sec. 1983, and an application to proceed in forma pauperis. Specifically, Plaintiff alleged the food served to inmates at the Mercer County Correctional Center (MCCC) was not in compliance with "federal, state and local sanitation, safety and health codes" and created unconstitutional conditions of confinement. He named Aramark Food Service and several employees of the MCCC as defendants. The Court explained via Opinion and Order dated November 24, 2015 that the complaint had been dismissed on October 30, 2014 as Plaintiff Simpson did not file an amended complaint within the time period set forth by the Court. It further stated that as both Plaintiff Bragg's and Coney's motions to amend had been denied on August 31, 2015, there was no active complaint before the Court at that time. On May 12, 2016, Plaintiff Bragg moved to reopen the case. He argued the case should be reopened as he "has been trying to prosecute his case and keep the Court updated about his current address." He also asserts he lacks legal skills and knowledge about court procedure. In her Opinion dated August 9, 2016 available at https://is.gd/jCqJrV from Leagle.com, Judge Thompson held that Plaintiff Bragg has repeatedly failed to follow the Court's directions and that any defendants would be prejudiced in their ability to defend themselves are particularly important. His repeated failure to do so and lack of any explanation for said failure weighs in favor of dismissal. BANK OF AMERICA: Court Denies Motion to Amend Interlocutory Order ----------------------------------------------------------------- District Judge Sean F. Cox of the United States District Court for the Eastern District of Michigan denied Plaintiff's motion to amend an interlocutory order to include a statement as prescribed by 28 USC Sec. 1292(b) in the case captioned, Law Offices of Daniel C. Flint, P.C., Plaintiff, v. Bank of America, N.A., Defendant, Case No. 15-13006 (E.D. Mich.). Plaintiff filed the prospective class action against Defendant asserting several claims relating to Defendant's alleged unconscionable overdraft policies and practices. Plaintiff filed a prospective class action on August 25, 2015, alleging the following claims: Count I - Breach of Contract and Breach of the Covenant of Good Faith and Fair Dealing; Count II - Unconscionability; Count III - Statutory Conversion; Count IV - Unjust Enrichment; and Count V - Violations of State Unfair Trade Practice Laws Plaintiff's claims relate to Defendant's assessment of overdraft fees on business deposit accounts. Plaintiff's complaint alleges that Defendant utilizes a system that "intentionally maximizes the number of overdrafts in order to charge each business customer the maximum amount of fees." On October 19, 2015, Defendant filed a "Motion to Compel Arbitration and Stay Proceedings." Plaintiff opposed the motion, arguing that the arbitration clause and the class action and jury trial waivers were unconscionable. On April 13, 2016, the Court granted Defendant's motion to compel arbitration and stay proceedings. In the motion, Plaintiff argues that this Court should certify an interlocutory appeal of its April 13, 2016 Opinion & Order pursuant to 28 U.S.C. Sec. 1292(b). In his Opinion and Order dated August 9, 2016 available at https://is.gd/qmCFtW from Leagle.com, Judge Cox found that that no exceptional circumstances exist to warrant an interlocutory appeal in the case. Specifically, Plaintiff has failed to establish that a substantial ground for difference of opinion exists as to any purported question of law. Law Offices of Daniel C. FLint, P.C. is represented by Douglas D. Hampton, Esq. -- dhampton@hamptonlawgroup.com -- HAMPTON LAW GROUP Bank of America, N.A. is represented by Brian C. Summerfield, Esq. -- BODMAN -- Catalina Joos Vergara, Esq. -- cvergagra@omm.com -- and -- Matthew W. Close, Esq. -- mclose@omm.com -- O'MELVENY & MYERS LLP BANNER HEALTH: Physician Files Data Breach Class Action ------------------------------------------------------- Akanksha Jayanthi, writing for Health IT & CIO Review, reports that Phoenix-based Banner Health faces a class-action lawsuit regarding a recent massive data breach. The lawsuit, filed by a Banner physician, claims Banner was negligent and allowed the breach to occur and seeks compensation for identity protection and credit monitoring, reports The Arizona Republic. Howard Chen, MD, works at Banner Thunderbird Medical Center in Glendale, Ariz., and he is among the 3.7 million patients, health plan members, customers and providers whose personal information may have been compromised in the cyberattack. Hackers gained access to Banner Health computer servers, including those that process payment card information where food and beverages are sold. It was the largest data breach so far of 2016. Banner is offering free credit and identity monitoring to affected individuals for one year. Dr. Chen's lawsuit says these steps are not sufficient reparation. "Banner's negligence affected millions of people," said Rob Carey, the attorney filing the lawsuit on Dr. Chen's behalf, in a statement, according to the report. "It's not enough to offer a skimpy 'fix' -- the law requires Banner remedy the serious risks it created for its stakeholders." The lawsuit argues credit monitoring and identity protection are not enough to protect individuals because cyber criminals will wait a couple of years to use stolen information, often after monitoring periods expire, according to the report. Banner indicated it is enhancing the security of its network systems, as well. "Banner is committed to maintaining the privacy and security of information of our patients, employees, plan members and beneficiaries, customers at our food and beverage outlets, as well as our providers," said Peter Fine, president and CEO of Banner Health, in the public notice of the cyberattack. BERKELEY, CA: "Law" Case Plaintiffs May File 4th Amended Suit ------------------------------------------------------------- Magistrate Judge Jacqueline Scoot Corley of the United States District Court for the Northern District of California denied a motion to dismiss and to strike certain allegations, and granted Plaintiffs' leave to file the Fourth Amended Complaint (FAC) in the case captioned, MONI LAW, et al., Plaintiffs, v. CITY OF BERKELEY, et al., Defendants, Case No. 15-CV-05343-JSC (N.D. Cal.). The lawsuit arises out of a racial justice protest in Berkeley, California. Plaintiffs challenge the City of Berkeley and the Berkeley Police Department's response to the protest and allege that, among other things, they were subject to excessive force and violation of their First Amendment rights. Plaintiffs contend that this unlawful use of force is "the proximate result of a custom, policy, pattern or practice of deliberate indifference by defendant City of Berkeley to the repeated violations of the constitutional rights of citizens by defendant City of Berkeley's police officers, which have included, but are not limited to, the repeated use of excessive force, racial profiling, and the repeated failure to properly and/or adequately train, supervise and/or discipline officers with respect to the use of excessive force, constitutional limitations on the use of force, City policies on use of weapons and force, and racial profiling; the repeated failure by City of Berkeley high ranking officials, police department managers and/or supervisors to hold officers accountable for violating the rights of citizens; and/or other customs, policies and/or practices." Pending before the Court is Berkeley's motion to dismiss claims in the Third Amended Complaint for lack of standing pursuant to Federal Rule of Civil Procedure 12(b)(1) and to strike certain allegations pursuant to Federal Rule of Civil Procedure 12(f). Defendants' motion raises three primary arguments. First, Defendants move to strike Plaintiffs' class allegations contending that the proposed class is not adequately defined and Plaintiffs have not adequately alleged the prerequisites for a class action under Federal Rule of Civil Procedure 23(a) or (b)(2). Second, Defendants move to dismiss Plaintiffs' claims for injunctive and declaratory relief for lack of standing. Finally, Defendants move to strike Plaintiffs' allegations regarding injuries from mutual aid agencies, specialty impact munitions, and racial profiling. In her Order dated August 9, 2016 available at https://is.gd/acUtcA from Leagle.com, Judge Corley found that there is good cause to grant Plaintiffs leave to file the previously submitted Fourth Amended Complaint and that Defendants have not established at the stage in the proceedings that a (b)(2) class cannot be certified. Moni Law, et al. are represented by Rachel Lederman, Esq. -- rachel@bllaw.info -- LAW OFFICES OF RACHEL LEDERMAN & ALEXSIS C. BEACH. They are also represented by: James B. Chanin, Esq. LAW OFFICES OF JAMES B. CHANIN 350 Shattuck Avenue Berkeley, CA 94705 Tel: (510)848-4752 City of Berkeley, et al. are represented by represented by Lynne Sarah Bourgault, Esq. -- lbourgault@ci.berkeley.ca.us -- BERKELEY CITY ATTORNEY'S OFFICE BFI WASTE: "Turner" Suit Seeks Unpaid Overtime Under FLSA --------------------------------------------------------- Darren Turner, on behalf of himself and all others similarly situated, The Plaintiffs, v. BFI Waste Services, LLC d/b/a Republic Services; Republic Services of South Carolina, LLC d/b/a Republic Services; and Republic Services, Inc., the Defendants, Case No. 2:16-cv-02864-DCN (D.S.C., Aug. 17, 2016), seeks to recover unpaid overtime compensation, liquidated damages, attorneys' fees, and costs, pursuant to the Fair Labor Standards Act (FLSA). The Defendants allegedly did not pay Plaintiff or the Class Members time and one-half for hours worked over 40 hours in a workweek and, instead, utilized the "fluctuating work week" method to pay employees only half-time for hours worked over 40 hours in a workweek. The Plaintiff is represented by: J. Scott Falls, Esq. Ashley L. Falls, Esq. FALLS LEGAL 245 Seven Farms Drive, Suite 250 Charleston, SC 29492 Telephone: (843) 737-6040 Facsimile: (843) 737-6140 E-mail: scott@falls-legal.com ashley@falls-legal.com - and - Douglas M. Werman Zachary C. Flowerree WERMAN SALAS P.C. 77 W. Washington Street, Suite 1402 Chicago, IL 60602 Telephone: (312) 419 1008 Facsimile: (312) 419 1025 E-mail: dwerman@flsalaw.com zflowerree@flsalaw.com BIRMINGHAM, AL: Sept. Hearing Set for Police Dept's Appeal ---------------------------------------------------------- PBS Newshour reports that a federal court in Alabama ruled that the Birmingham Police Department's disciplinary practices, including the use of pepper spray for minor discipline problems, is in violation of student rights and unconstitutional. Attorney Ebony Howard of the Southern Poverty Law Center filed the class-action suit, and returns to court next month when the police department's appeal is heard. BMW OF NORTH AMERICA: "DiMartino" Suit Dismissed as Time-Barred --------------------------------------------------------------- District Judge William J. Martini of the United States District Court for the District of New Jersey granted Defendant BMW of North America, LLC's (BMWNA) motion to dismiss in the case captioned, JOSEPH DIMARTINO Plaintiff, v. BMW OF NORTH AMERICA, LLC, Defendant, Civil Action No. 15-8447 (WJM)(D.N.J). Plaintiff Joseph DiMartino brought suit on behalf of a putative class, alleging unjust enrichment, monopolization under Section 2 of the Sherman Antitrust Act, and violation of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA). DiMartino, a Florida resident, purchased a BMW 5-series car. The vehicle contains a N54 engine that Plaintiff alleges incorporated faulty fuel injectors-six Index 10 fuel injectors. Due to a failure of two of these injectors, DiMartino was required to bring his car in for an out-of-warranty repair. As part of the repairs, DiMartino alleges that he was forced to pay to replace all six of the Index 10 fuel injectors with Index 11 models. DiMartino alleges that because of the need imposed by BMWNA to replace all fuel injectors and a monopoly on this market, BMWNA is able to profit from the sale of the additional, still functional, fuel injectors and consumers are forced to spend more than necessary for the repairs. BMWNA seeks to have the Complaint dismissed in its entirety arguing that all of DiMartino's claims are time-barred. In his Opinion dated August 11, 2016 available at https://is.gd/z7x1lD from Leagle.com, Judge Martini found that Plaintiff neglects to provide any operative dates in the Complaint, including when he purchased the car or when he brought it in for repair so that the Court is unable to deduce when the limitations periods began to run. Joseph Dimartino is represented by James E. Cecchi, Esq. -- JCecchi@carellabyrne.com -- CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO, P.C. BMW OF NORTH AMERICA, LLC is represented by R. Brendan Fee, Esq. -- brendan.fee@morganlewis.com -- MORGAN LEWIS & BOCKIUS LLP BORGATA HOTEL: Distribution of Tournament Proceeds Affirmed ----------------------------------------------------------- Judges Jack M. Sabatino, Allison A. Accurso and Amy O'Connor of the New Jersey Superior Court affirmed the entry of summary judgment dismissing Plaintiffs' Law Division action and approving Director's order of distribution of tournament proceeds in the case captioned, IN THE MATTER OF THE BORGATA WINTER POKER OPEN, A GAMING TOURNAMENT CONDUCTED BY MARINA DISTRICT DEVELOPMENT COMPANY, LLC, d/b/a Borgata Casino Hotel and Spa between January 14, 2014 and January 18, 2014. JACOB MUSTEREL, FARID VAGHEFI and STEVEN CELESTE, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. MARINA DISTRICT FINANCE COMPANY, INC. and MARINA DISTRICT DEVELOPMENT COMPANY, LLC, d/b/a BORGATA HOTEL CASINO AND SPA, MARINA DISTRICT DEVELOPMENT HOLDING COMPANY, LLC, BOYD ATLANTIC CITY, INC. and BOYD GAMING CORPORATION, Defendants-Respondents, Case No. A-4409-13T3, A-0231- 14T3 (N.J. Super. App. Div.). The case arise out of a poker tournament hosted by Marina District Development Company, LLC, d/b/a Borgata Hotel Casino and Spa, which the Division of Gaming Enforcement cancelled when Borgata discovered a registered player had introduced counterfeit chips into tournament play. A review of surveillance tape revealed Christian Lusardi entered the men's room at the conclusion of play. He was, at that point, the tournament chip leader with $519,000 in chips. Lusardi was arrested and charged in connection with the counterfeit tournament chips. In their Complaint Plaintiffs alleged negligence, violations of the Consumer Fraud Act, N.J.S.A.56:8-1 to-120, promissory estoppel, and breach of contract, breach of the implied duty of good faith and fair dealing and unjust enrichment. They alleged that Borgata failed to properly supervise the event (or their staff); failed to implement adequate security measures; failed to detect a participant's introduction of a significant amount of counterfeit chips into the game did not halt the event as soon as the event was, or should have been, recognized as compromised; failed during the tournament to count the chips on an ongoing basis and failed to adequately secure the legitimate chips during breaks in play. The judge hearing Borgata's summary judgment motion asked plaintiffs' counsel at oral argument how the case was different from one already dismissed by another judge in the vicinage brought by others of the 27 players remaining in the tournament when play was suspended. The motion judge adopted the reasoning of the first judge to consider claims arising out of the compromised poker tournament, that is, that jurisdiction over the controversy is squarely in the Division because the specific conduct alleged to have occurred is within the Casino Control Act's prohibitions against the use of bogus chips. Adopting as persuasive the first judge's finding that the Division had both the expertise and the specifically delegated authority to sanction licensee violations of the Casino Control Act or its implementing regulations and to afford remedies to plaintiffs, the judge granted Borgata's motion for summary judgment. On appeal, in the administrative matter, Plaintiffs challenge the April 14, 2014 final order of the Director of the Division of Gaming Enforcement directing the distribution of retained entry fees, unpaid prizes and the remaining unallocated tournament funds among the 2,827 persons participating in the tournament. They contend the Director's distribution scheme was arbitrary and capricious and that their due process rights were violated by the agency's failure to hold a hearing. In the Law Division matter, plaintiffs appeal from the entry of summary judgment dismissing their class action complaint against Borgata alleging negligence, consumer fraud, breach of contract, promissory estoppel, unjust enrichment and breach of the implied covenant of good faith and fair dealing for negligently permitting a player to introduce counterfeit chips into the tournament, tainting the games and depriving plaintiffs of a fair opportunity to win the tournament prize money as promised. In the Per Curiam dated July 28, 2016 available at https://is.gd/axixQv from Leagle.com, Judges Sabatino, Accurso and O'Connor concluded that the Director's distribution scheme was reasonable, not arbitrary or capricious, and amply supported by the record, and that plaintiffs cannot demonstrate any entitlement to a hearing. The Court also found that the distribution of tournament proceeds in this instance provided plaintiffs an adequate administrative remedy to vindicate their damage claims against Borgata. Jacob Musterel, Farid Vaghefi and Steven Celeste are represented by: Randall J. Peach, Esq. RANDALL J. PEACH LAW OFFICES 991 US 22 #200 Bridgewater, NJ 08807 Tel:(908)684-8011 Marina District Development Company, Marina District Finance Company, Inc., Marina District Development Holding Company, Boyd Atlantic City, Inc. and Boyd Gaming Corporation are represented by Gerard W. Quinn, Esq. -- tom.quinn@us.schindler.com - SCHINDLER ELEVATOR CORP. New Jersey Division of Gaming Enforcement is represented by David S. Frankel, Esq. -- jonathan.frankel@sap.com -- DEPUTY ATTORNEY GENERAL CALIFORNIA PHYSICIANS' SERVICE: Court Trims Claims in "Escalante" ----------------------------------------------------------------- District Judge Dean D. Pregerson of the United States District Court for the Central District of California granted in part and denied in part the Defendant's motion for summary judgment in the case captioned, Luis Escalante, on behalf of himself and all others similarly situated, Plaintiff, v. California Physicians' Service dba Blue Shield of California, Defendants, Case No. CV 14- 03021 DDP (PJWx) (C.D. Cal.). Plaintiff Luis Escalante was covered by a group health insurance policy issued by Defendant Blue Shield of California. Plaintiff alleges that he suffers from degenerative disc disease (DDD) and that his doctor recommended he undergo artificial disc replacement (ADR) surgery instead of a more traditional lumbar fusion. Plaintiff requested authorization from Blue Shield to undergo ADR surgery, but Blue Shield denied Plaintiff's request after finding ADR surgery was excluded from coverage as investigational because "the efficacy of [ADR] has not been validated by the peer reviewed literature." Plaintiff appealed the decision to both Blue Shield and the California Department of Managed Health Care, and was again denied. Plaintiff brought suit on behalf of a now certified class, challenging Blue Shield's ADR policy under the Employee Retirement Security Act of 1974 (ERISA). Blue Shield moves for summary judgment arguing that the court should review Blue Shield's coverage decision for abuse of discretion. In his Order dated July 29, 2016 available at https://is.gd/Uy3riB from Leagle.com, Judge Pregerson held that, despite Blue Shield's evidence that it did not abuse its discretion and Plaintiff's lack of intra-record evidence, the court must deny Blue Shield's motion insofar as it relates to the decision on the merits because (1) triable issues remain regarding the extent and effect of Blue Shield's structural bias and (2) it is unclear whether the evidence upon which Blue Shield relies is part of the administrative record to which this Court must limit its merits review. Luis Escalante is represented by Adrian J. Barrio, Esq. -- Adrian.Barrio@gmlawyers.com -- Joshua Seth Davis, Esq. -- Joshua.Davis@gmlawyers.com -- Richard Reyes Fruto, Esq. -- richard@chunfrutolaw.com -- and Robert S. Gianelli, Esq. - Robert.Gianelli@gmlawyers.com -- GIANELLO AND MORRIS ALC California Physicians' Service is represented by Gregory N. Primstone, Esq. -- gpimstone@manatt.com -- Jessamyn Elizabeth Vedro, Esq. -- jvedro@manatt.com -- Joseph E. Laska, III -- jlaska@manatt.com -- Michael C. Godino -- mgodino@manatt.com -- MANATT PHELPS AND PHILLIPS LLP CALIFORNIA HIGHWAY: Class Cert. Ruling in "Schmidt" Affirmed ------------------------------------------------------------ Presiding Judge Arthur Gilbert of the California Court of Appeals affirmed a trial court's judgment stating that Plaintiff should have been issued a certificate of detention by the California Highway Patrol, granting of class certification and award of attorney fees in the case captioned, JOHN J. SCHMIDT, Plaintiff and Respondent, v. CALIFORNIA HIGHWAY PATROL, Defendant and Appellant, Case No. B260643 (Cal. App.). On May 1, 2011, John J. Schmidt was arrested by the CHP for driving under the influence. He was booked into the Santa Barbara County jail and released later that day on his own recognizance. Schmidt signed a notice to appear in court. The CHP did not provide Schmidt with a certificate describing his arrest as a detention. Nor did the CHP report the arrest as a detention to the Department of Justice. Schmidt brought the action against the CHP on behalf of himself and all persons similarly situated. The action sought a writ of mandate to compel the CHP to comply with sections 849.5 and 851.6, subdivision (b). Susan Segura testified that she has been the records supervisor for the Santa Barbara Police Department for 16 years. She testified to her office's procedure when the police department refers a case to the district attorney and the district attorney's office sends notice to the police department that the case has been rejected. The trial court certified the class and granted Schmidt's writ petition. The court also awarded Schmidt attorney fees in the amount of $296,100 pursuant to Code of Civil Procedure section 1021.5, the private attorney general statute. On appeal, the CHP contends that the trial court (1) misinterpreted sections 849.5 and 851.6, subdivision (b); (2) erred in certifying the class; (3) erred in implementing a problematic writ of mandate; and (4) abused its discretion in awarding Schmidt attorney fees. In his Order dated August 1, 2016 available at https://is.gd/hsDtXe from Leagle.com, Judge Gilbert held that the trial court did not abuse its discretion as to the grant of writ of mandate because sections 849.5 and 851.6, subdivision (b) do not give law enforcement the powers of a prosecuting attorney, as to class certification the Court found that CHP's argument that the evidence is insufficient to support a finding that a community of interest exists is unpersuasive, and as to the awarding of attorney fees the Court hold that it is within its discretion in awarding attorney fees. California Highway Patrol is represented by Kamala D. Harris, Esq. -- attorneygeneral@doj.ca.gov -- Chris A. Knudsen, Esq. -- chris.knudsen@doj.ca.gov -- Kenneth C. Jones, Esq. -- kenneth.jones@doj.ca.gov -- Nancy G. James, Esq. -- Nancy.James@doj.ca.gov -- US ATTORNEY GENERAL John J. Schmidt is represented by Robin L. Unander, Esq. -- robin@unanderlaw.com -- LAW OFFICE OF ROBIN L. UNANDER; William C. Makler, Esq. -- bill@sbdefenselawyer.com -- LAW OFFICES OF WILLIAM C. MAKLER, P.C. CANADA: Save Oro Mulls Class Action Against Oro-Medonte Township ---------------------------------------------------------------- Patrick Bales, writing for The Orillia Packet & Times, reports that the 2016 festival season at Burl's Creek Event Grounds may be over, but opponents of the expanded programming in Oro-Medonte Township refuse to relent in their battle against the multi-day concerts. After another sleepless and "terrible" weekend for Wendy McKay, a neighbor of the park and director with Save Oro, a resident group formed to oppose the expansion at Burl's Creek, a new avenue in the group's strategy could soon open up. But this action wouldn't focus on promoter Republic Live or the Burl's Creek ownership, as has been the case with Save Oro's involvement with the Ontario Municipal Board hearing into a temporary zoning bylaw for the event grounds, or Ms. McKay's private prosecution surrounding the 2015 festivals. "We're looking at a class-action lawsuit against the township," Ms. McKay said. She said there would be several grounds for such court action, but the main thrust boils down to the actions the township has taken over the years surrounding events at Burl's Creek. "The only way that Burl's Creek and Republic Live are here is because the township, over the years, passed zoning bylaws, zoning changes, without consulting the public," Ms. McKay said. "They did them illegally; they passed them illegally. Because of that, they allowed the concerts to happen." The potential lawsuit has not begun to work its way through the court system and the allegations levelled have therefore not been proven. Discussion are ongoing, Ms. McKay said, as to when the legal process may begin. Oro-Medonte Mayor Harry Hughes told Postmedia he was not aware of any potential legal proceedings involving the township and the Burl's Creek property. CASH BIZ: Texas Appeals Court Sends "Henry" Case to Arbitration --------------------------------------------------------------- Justice Rebeca C. Martinez of the Texas Court of Appeals, Fourth District of San Antonio, reversed the trial court's order denying Cash Biz's motion to compel arbitration and denying Cash Biz's motion to enforce the class action waiver provision in the case captioned, Cash Biz, LP, et al., Appellants, v. Hiawatha Henry, et al. Appellees, Case No. 04-15-00469-CV (Tex. App.). Hiawatha Henry, Addie Harris, Montray Norris, and Roosevelt Coleman, Jr. (the Borrowing Parties) obtained loans from Cash Biz and subsequently defaulted on their repayment obligations. Cash Biz attempted to deposit the post-dated checks written upon execution of the loan documents; however, the checks were declined based upon insufficient funds. On January 30, 2015, the Borrowing Parties filed a class action petition on behalf of themselves and all others similarly situated in Texas, alleging Cash Biz: (1) illegally and wrongfully used the criminal justice system to collect payday loans through the wrongful filing of criminal charges; (2) illegally and wrongfully threatened its customers with criminal prosecution for failure to repay payday loans in violation of the Texas Finance Code, Texas Penal Code, and Texas Constitution; and (3) illegally and wrongfully classified post-dated checks as bad checks and pursued criminal charges against its customers in violation of the Finance Code and Penal Code. The Borrowing Parties alleged Cash Biz engaged in the described conduct knowing it was in violation of the law. The trial court denied Cash Biz's motion to compel and enforce the arbitration and class action waiver provisions concluding that the arbitration provision and class action waiver within the Loan Contracts are "not applicable" to the type of action brought by the Borrowing Parties. In addition, the trial court concluded Cash Biz waived its right to arbitration by substantially invoking the judicial process when it "filed criminal charges against Plaintiffs, participated in criminal trials, obtained criminal judgments, and attempted to collect from Plaintiffs." On appeal, Cash Biz argues it proved the Borrowing Parties' claims fall within the scope of the arbitration provision because the supporting factual allegations, contending Cash Biz used the criminal justice system to enforce a civil debt arise out of the Loan Contract which created the civil debt and which contains the arbitration provision. Cash Biz contends these factual allegations and basis of the action are encompassed within the broad definition of "dispute" in the arbitration provision. The Borrowing Parties assert their claims are not based on the parties' legal relationship created by the Loan Contract, but arise independently based upon Cash Biz's ancillary action of illegally initiating criminal prosecutions against them. In her Memorandum Opinion dated July 27, 2016 available at https://is.gd/0Xob2z from Leagle.com, Judge Martinez concluded that the trial court erred by denying Cash Biz's motion to enforce the class action waiver provision absent any argument or basis to hold the class action waiver provision internally invalid. The cause is remanded and stayed pending completion of individual arbitration. Hiawatha Henry is represented by Philip A. Meyer, Esq. -- Daniel Dutko, Esq. -- ddutko@hanszenlaporte.com -- H. Mark Burck, Esq. -- mburck@hanszenlaporte.com -- HANSZEN LAPORTE, HOUSTON TEXAS Montray Norris and Addie Harris are represented by Daniel Dutko, Esq. -- ddutko@hanszenlaporte.com -- HANZEN LAPORTE Cash Biz, LP and Cash Zone, LLC are represented by Edward Hubbard, Esq. -- ehubbard@lanealton.com -- Patrick E. Gaas, Esq. -- pgaas@coatsrose.com -- Sumit Kumar Arora, Esq. -- sarora@coatsrose.com -- COATS ROSE CETCO ENERGY: "England" Suit to Recover Overtime Pay ---------------------------------------------------- Chad England, individually and on behalf of all others similarly situated, Plaintiff, v. CETCO Energy Services Company, LLC, Defendant, Case No. 7:16-cv-00294, (W.D. Tex., August 9, 2016), seeks declaratory judgment, monetary damages, liquidated damages, prejudgment interest, civil penalties and costs, including reasonable attorney's fees under the Fair Labor Standards Act. CETCO Energy Services Company, LLC is an Illinois corporation registered to do business in the State of Texas, providing fracking services in the oil and gas industry where England was employed as an operator, and was later promoted to supervisor. He claims to be denied overtime pay. Plaintiff is represented by: Josh Sanford, Esq. SANFORD LAW FIRM, PLLC One Financial Center 650 S. Shackleford Road, Suite 411 Little Rock, AR 72211 Telephone: (501) 221-0088 Facsimile: (888) 787-2040 Email: josh@sanfordlawfirm.com CHARTER COMMUNICATIONS: "Cova" Suit Stays in E.D. Missouri ---------------------------------------------------------- District Judge Carol E. Jackson of the United States District Court for the Eastern District of Missouri denied Plaintiffs' motion to remand in the case captioned, RENO COVA, et al., Plaintiffs, v. CHARTER COMMUNICATIONS, INC., Defendant, Case No. 4:16-CV-675-CEJ (E.D. Mo.). On April 5, 2016, plaintiffs initiated the putative class action in the Circuit Court of the City of St. Louis, Missouri. Plaintiffs Reno Cova and Logan O'Connor are citizens of Missouri. Plaintiff Zach Splaingard is a citizen of Illinois. Defendant Charter Communications, Inc. is incorporated in Delaware and maintains its principal place of business in Connecticut. According to the complaint, defendant advertises and sells internet, phone, and television service, and leases to its subscribers related equipment. Plaintiffs allege defendant's actions mean its advertisements and agreements with its subscribers were deceptive, fraudulent, and misleading; violated the subscribers' rights to privacy and of publicity; and constituted fraud or negligent inducement to purchase its products and services. On May 13, 2016, defendant timely removed, invoking diversity jurisdiction, pursuant to the Class Action Fairness Act of 2005 (CAFA), 28 U.S.C. Sec. 1332(d). In the motion, plaintiffs maintain defendant has not established the proposed class comprises at least 100 people, or that the amount in controversy exceeds $5,000,000. In her Memorandum and Order dated August 16, 2016 available at https://is.gd/b1j03U from Leagle.com, Judge Jackson found that defendant has established by preponderance of the evidence all of the elements of subject matter jurisdiction under CAFA and that defendant has proven by a preponderance of the evidence that the aggregate amount in controversy exceeds $5,000,000. Reno Cova, et al. are represented by Ryan P. Horace, Esq. -- ryan@swmklaw.com -- SWMK LAW Charter Communications, Inc. is represented by Matthew D. Guletz, Esq. -- mguletz@thompsoncoburn.com -- and Roman P. Wuller, Esq. -- rwuller@thompsoncoburn.com -- THOMPSON COBURN, LLP CHEVRON: Obtains Favorable Ruling in Amazon Oil Pollution Case -------------------------------------------------------------- George Avalos, writing for East Bay Times, reports that Chevron on Aug. 18 won a major appellate court ruling that bars a group of indigenous people from seeking to seize the energy giant's U.S. assets to pay for polluting Ecuador's Amazon jungle. The U.S. Court of Appeals for the 2nd Circuit in New York City based its ruling on "corrupt conduct" -- including bribes and fraud -- on the part of the legal team for the plaintiffs, a group of indigenous Ecuadoreans, as well as officials in the South American nation. "This decision, which is consistent with the findings of numerous judicial officers in the United States and South America, leaves no doubt that the Ecuadorean judgment against Chevron is the illegitimate and unenforceable product of misconduct," said R. Hewitt Pate, Chevron's general counsel. "We are shocked by this decision," said Karen Hinton, a spokeswoman for the plaintiffs, who sued Chevron in connection with oil pollution caused, at least in part, by Texaco, which Chevron bought in 2001. "The Ecuadoreans' attorneys are reviewing it carefully and will be exploring all options for further appeal." The Ecuador group said it would continue to attempt to seize Chevron's assets in Canada. "This ruling will not deter the Ecuadoreans, their lawyers and their supporters from aggressively seeking justice in Canada and in other countries where litigation is underway to seize Chevron assets," Ms. Hinton said. The decision marked the latest major milestone after a $8.65 billion judgment against Chevron in Ecuador. In 2011, an Ecuadorean court ordered Chevron to pay $18 billion, but that amount was later reduced. The same year, Chevron sued attorneys for the plaintiffs in U.S. District Court, seeking to block enforcement of the Ecuador decision in this country. In 2014, the U.S. court ruled in favor of Chevron, saying the lead attorney for the plaintiffs, Steven Donziger, had used "corrupt means" to gain the judgment. "The decision hands well-heeled corporations a template for avoiding legal accountability anywhere in the world," said Deepak Gupta, Donzinger's attorney. The federal appeals court said Donziger's actions included fraud and bribery of legal officials in Ecuador. "Even innocent clients may not benefit from the fraud of their attorney," Judge Amalya Lyle Kearse wrote in the unanimous opinion of a three-judge panel of the 2nd Circuit. The Aug. 8 ruling upheld the lower court's ruling, which Kearse cited in writing the appellate court's decision. "Justice is not served by inflicting injustice," the U.S. District Court stated in its 2014 ruling. "The ends do not justify the means. There is no 'Robin Hood' defense to illegal and wrongful conduct. The defendants' 'this-is-the-way-it-is-done-in-Ecuador' excuses -- actually a remarkable insult to the people of Ecuador - - do not help them." CHILDREN'S PLACE: Court Approves Class Action Notice in "Essex" --------------------------------------------------------------- District Judge John Michael Vazquez of the United States District Court for the District of New Jersey Eastern Division granted Plaintiffs' motion for notice in the case captioned, ANGELA R. ESSEX, et al, Plaintiffs, v. THE CHILDREN'S PLACE, INC., Defendant, Case No. 15-5621 (D.N.J.). Named Plaintiffs Angela R. Essex and Gabriela Maradiaga, and eight "opt-in" Plaintiffs (Plaintiffs) filed their complaint on July 17, 2015, alleging that they were misclassified as exempt under the Fair Labor Standards Act, and therefore, are entitled to unpaid overtime wages. Plaintiffs were store managers at Children's Place, a national retail store that sells children's clothing and related goods. Plaintiffs allege that they, and similarly situated employees, "worked in excess of 40 hours per workweek, without receiving overtime compensation as required by the FLSA." Plaintiffs now request the Court to conditionally certify and provide notice to a class of SMs who were allegedly misclassified as exempt employees and not paid overtime wages as required by the FLSA. In his Opinion dated August 16, 2016 available at https://is.gd/3SJGML from Leagle.com, Judge Vazquez granted Plaintiffs' request for a list of all SMs employed by Children's Place within the last three years since courts routinely order employers to produce a list of potential class members to plaintiffs. The parties are also required to meet and confer regarding the proposed notice and consent form, and submit the proposed notice, with any objections, to the Court for review and approval within 30 days. Angela R. Essex, et al. are represented by Michael Hayden Reed, Esq. -- smreed80@gmail.com -- KLAFTER OLSEN & LESSER, LLP -- Michael John Palitz, Esq. -- mpalitz@shavitzlaw.com -- SHAVITZ LAW GROUP, P.A. The Childrens Place, Inc. is represented by Michael T. Grosso, Esq. -- mgrosso@littler.com -- LITTLER MENDELSON, P.C. CITIGROUP INC: Court Reaffirms Ruling on Cy Pres Designees ---------------------------------------------------------- In the case captioned, IN RE CITIGROUP INC. SECURITIES LITIGATION, ATD Group et al., Plaintiffs, v. XCEL ENERGY INC. et al., Defendants. REORGANIZED FLI, INC., Plaintiff, v. Citigroup Inc. et al., Defendants, No. 07-CV-9901 (SHS)(S.D.N.Y.), District Judge Sidney H. Stein of the United States District Court for the Southern District of New York adhered to an earlier determination approving lead plaintiffs' three cy pres designees to receive the remaining settlement funds. Plaintiffs are current and former Citigroup shareholders who brought a number of securities fraud actions on behalf of a class of Citigroup investors against Citigroup and fourteen of its officials. The actions were consolidated and the consolidated class action complaint charged that defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. In essence, plaintiffs claimed that Citigroup knowingly understated the risks it faced and overstated the value of the assets it possessed with regard to its exposure to various financial instruments prevalent prior to the financial crisis. Plaintiffs claimed they suffered serious damage when the truth about Citigroup's assets was finally revealed. On February 5, 2016, class counsel notified the Court that $374,820 designated for the class remained undistributed in the settlement fund, that it was no longer feasible to make further distributions, and that further efforts to do so would not be effective. The $374,820 constitutes 0.064% of the original $590 million fund. Lead plaintiffs designated three nonprofit organizations to receive the remaining funds: South Brooklyn Legal Services; the National Consumers League; and the Consumer Federation of America. In February 2016, the Court granted lead plaintiffs' cy pres distribution. Theodore H. Frank, a class member, moved the Court to reconsider its determination. Frank is a Senior Attorney with the Competitive Enterprise Institute. Frank proposes alternate cy pres designees who he believes are truly "next best" recipients. After receiving Frank's motion to reconsider, the Court stayed its February 16 order granting the cy pres distribution, and, to the Court's knowledge, none of the residual funds have been distributed to the three proposed nonprofit donees. No one contests that it is no longer feasible to distribute the remaining settlement funds to class members nor does anyone dispute that the distribution of funds to one or more cy pres designees is now appropriate. The parties disagree solely as to whom those funds should be distributed. In his Opinion dated August 9, 2016 available at https://is.gd/aHZkWs from Leagle.com, Judge Stein held that Frank's motion to reconsider the "Order Authorizing Final Distribution of Funds and Cy Pres Designation" dated February 13, 2016, is granted, and, upon reconsideration, the Court adheres to its earlier determination approving lead plaintiffs' three cy pres designees. The Court finds that the selection -- by experienced counsel who have effectively worked in the interests of their clients throughout this litigation -- of South Brooklyn Legal Services, the National Consumers League, and the Consumer Federation of America is closely tethered to the nature of this lawsuit and the interests of the class. Thus, lead plaintiffs' motion to distribute 37.5% of the remaining settlement funds to South Brooklyn Legal Services, 37.5% to the National Consumers League, and 25% to the Consumer Federation of America is granted. ATD Group is represented by Lauren Wagner Pederson, Esq. -- lpederson@kmllp.com -- Peter S. Linden, Esq. -- plinden@kmllp.com -- Ira M. Press, Esq. -- ipress@kmllp.com -- KIRBY MCINERNEY LLP Tillie Saltzman, Plaintiff is represented by Samuel Howard Rudman,Esq -- SRudman@rgrdlaw.com --ROBBINS GELLER RUDMAN & DOWD LLP Public Employees' Retirement Association of Colorado is represented by Andrew J. Entwistle, Esq. -- aentwistle@entwistle- law.com -- ENTWISTLE & CAPPUCCI LLP -- Peter S. Linden, Esq. -- plinden@kmllp.com -- KIRBY MCINERNEY LLP Citigroup Inc., et al Defendants is represented by Richard A. Rosen, Esq. -- rrosen@paulweiss.com -- Susanna Michele Buergel, Esq. -- sbuergel@paulweiss.com -- Jane Baek O'Brien, Esq. -- jobrien@paulweiss.com -- PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP COMCAST CORP: Court Sends "James" Suit to Arbitration ----------------------------------------------------- District Judge Edward M. Chen of the United States District Court for the Northern District of California granted Defendant's motion to compel arbitration in, and to dismiss, the case captioned, JOHN C. JAMES, Plaintiff, v. COMCAST CORPORATION, et al., Defendants, Case No. 16-CV-02218-EMC(N.D. Cal.) On April 4, 2016, Plaintiff John C. James filed a putative class action against Defendants Comcast Corporation and Comcast Cable Communications, LLC, alleging that Comcast failed to provide credits and/or refunds to month-to-month customers during the times when Comcast did not provide uninterrupted service. In 2011, Comcast added an arbitration provision to its Service Agreement with a red bold-printed note stating "Important notice regarding Comcast agreements for residential services." and "Notice from Comcast regarding revised agreements for residential services including arbitration provision" and provided a link to the revised agreements. James did not exercise his option to opt out of the 2011 Arbitration Provision, but continued to use Comcast's services. James contends that he never received the 2011 Arbitration Provision Notice. However, James paid his July 2011 bill with which the Notice would have been included. Comcast filed a motion to compel arbitration and to dismiss, or, in the alternative, to stay the action pending the completion of arbitration. In his Order dated August 15, 2016 available at https://is.gd/5QDRxo from Leagle.com, Judge Chen found that a valid, enforceable agreement was made between James and Comcast. The Court stays the case in its entirety. John C. James is represented by Anthony Martin Perez, Jr. Esq. -- aperez@perezlawoffices.com -- PEREZ LAW OFFICES -- Dale Curtis Campbell, Esq. -- dcampbell@weintraub.com -- Brendan J. Begley, Esq. -- bbegley@weintraub.com -- Gary Alan Waldron, Esq. -- gwaldron@weintraub.com -- Joshua Heath Escovedo, Esq. -- jescovedo@weintraub.com -- WEINTRAUB TOBIN CHEDIAK COLEMAN GRODIN LC Comcast Corporation, et al. are represented by Joseph Edward Addiego, III, Esq. -- joeaddiego@dwt.com -- DAVIS WRIGHT TREMAINE LLP -- Adam S. Caldwell, Esq. -- adamcaldwell@dwt.com -- Patrick John Curran, Jr., Esq. -- patcurran@dwt.com -- DAVIS WRIGHT TREMAINE LLP CONAIR CORP: Court Limits Definition of Class in "Czuchaj" Suit --------------------------------------------------------------- CYNTHIA L. CZUCHAJ, individually and on behalf of all others similarly situated, et al., Plaintiffs, v. CONAIR CORPORATION, a Delaware corporation, Defendant, Case No. 3:13-CV-01901-BEN-RBB. (S.D. Cal.), arises from two alleged defects in Defendant's Infinity Pro 1875 Watt model 259 hair dryer: a defect to the strain relief in the product's cord and a defect to coils in the barrel of the product. There are two class claims which are a New York damages subclass for violation of New York General Business Law section 349, represented by Plaintiff Patricia Carter, whose hair dryer failed because of the coil issue, and a California damages subclass for violation of the Song-Beverly Warranty Act, represented by Plaintiff Cynthia Czuchaj, whose hair dryer failed because of the cord issue. Defendant seeks to narrow the definitions of each subclass. The current definition of both subclasses is (i) All New York or California residents who purchased either a model 259 or 279 Infiniti Pro 1875 Watt hair dryer, between August 15, 2009 and the present, sold by Defendant Conair Corporation directly or through a retailer for primarily personal, family, or household purposes, and not for resale. Defendant argues that the definition should be altered because the only hair dryers at issue were manufactured by Sun Luen prior to July 26, 2013 because, at that time, the problematic cord strain relief was removed from production; and the proper plaintiff for a Song-Beverly Act claim is a consumer who purchased a product in California, not a California resident. In his Order dated August 15, 2016 available at https://is.gd/wwwAqf from Leagle.com, District Judge Roger Benitez concluded that the present subclass definitions are overbroad and must be narrowed. Because Plaintiff Carter lacks standing to allege a cord defect claim and her coil claims are atypical of cord claims, the New York subclass must be limited to individuals who allege injury from the coil defect. The California subclass includes plaintiffs alleging cord failures from Sun Luen- manufactured hair dryers and plaintiffs alleging coil defects from Sun Luen, Silver Plan, and Neumax-manufactured hair dryers. Cynthia L. Czuchaj is represented by Isam C. Khoury, Esq -- ikhoury@ckslaw.com -- Jeff Geraci, Esq. -- jgeraci@ckslaw.com -- Michael D. Singer, Esq. -- msinger@ckslaw.com -- Jennifer Lynn Connor, Esq. -- Timothy D. Cohelan, Esq. -- tcohelan@ckslaw.com -- COHELAN KHOURY & SINGER; Jerusalem F. Beligan, Esq. -- jbeligan@bisnarchase.com -- BISNAR & CHASE; Katherine J. Odenbreit, Esq. -- info@mahoney-law.net -- ODENBREIT LAW, APC Conair Corporation is represented by Ryan Donald Saba, Esq. -- rsaba@rosensaba.com -- Momo Emily Takahashi, Esq. -- mtakahashi@rosensaba.com -- ROSEN SABA LLP. CONNECTICUT: DCF Makes Progress Years Following Class Action ------------------------------------------------------------ Kyle Constable, writing for The Connecticut Mirror, reports that despite continued funding cuts as state lawmakers look to curtail spending, the state Department of Children and Families (DCF) has "made and sustained progress" toward improving the state's child welfare system, a federal court monitor reported on Aug. 8. In two key areas -- case planning and meeting children's basic needs -- court monitor Raymond Mancuso reported his "best findings ever" at DCF in the first quarter of 2016. The improvements, while significant, still did not meet compliance standards ordered by the court monitor, however. The latest update comes after years of previous reports showing DCF struggling to meet children's basic needs as staffing levels remained below what officials said was necessary. "Commissioner (Joette) Katz and her administration are moving in the right direction to reform the system for thousands of children and, if they can build on this recent progress, toward a successful exit from court oversight," said Ira Lustbader, litigation director for Children's Rights, one of the groups representing plaintiffs in the 1989 "Juan F." class-action lawsuit that led to federal oversight of DCF. Overall, the agency met 16 of its 22 court-ordered goals to improve child welfare in the first quarter of 2016 after meeting 14 of the goals in the fourth quarter of 2015. Mr. Mancuso's report found 13 of the goals had been met for at least two consecutive quarters. DCF Commissioner Joette Katz said her agency has responded to funding cuts with "innovative and creative" solutions to keep improving the quality of the services provided. "While we have made important strides, we will not rest on our laurels," Katz said. "These changes have not come easily and, given the fiscal forecast in the coming years, we must remain committed to thinking outside the box if we are to continue serving in the best interests of children and families." The agency's progress comes as it has seen a "steady increase" in calls to the Careline, which is DCF's 24/7 hotline for questions, concerns and reports of possible child abuse or neglect. In public hearing testimony earlier this year, officials attributed this to an increase in the number of mandated reporters -- those who are required to report a possible case of abuse if there is reasonable cause or suspicion. As the already understaffed agency deals with this influx, Mr. Mancuso said his review staff found "numerous examples of excellent case management, care coordination and service provision" when examining cases for the Aug. 8 report. The most recent report looked at 54 cases, and found the agency had reached compliance standards for case planning in two-thirds of them and met children's basic needs in more than 70 percent of them. While lower than the agency would prefer, these levels were significantly higher than in past reports. The report in the fourth quarter of 2014 found the agency was only compliant in case planning in 41 percent of cases and in meeting children's basic needs in 53 percent of cases. Mr. Mancuso said the agency's case assessment work "still needs improvement." In addition, he said, there needs to be a "continued emphasis on better engagement of families and stakeholders." CR BARD: "Spencer" Suit Consolidated in IVC Filters Products MDL ---------------------------------------------------------------- The lawsuit styled Spencer v. C.R. Bard Incorporated, et al., Case No. 2:16-cv-02573, was transferred from the U.S. District Court for the District of New Jersey to the U.S. District Court for the District of Arizona (Phoenix Division). The Arizona District Court Clerk assigned Case No. 2:16-cv-02751-DGC to the proceeding. The case is consolidated in the multidistrict litigation titled IN RE: Bard IVC Filters Products Liability Litigation, MDL No. 2:15- md-02641-DGC. The Plaintiffs in the litigation seek damages relating to the Defendants' development, testing, assembling, manufacturing, packaging, labeling, preparing, distribution, marketing, supplying, and selling of the allegedly defective product sold under the name Bard "Denali(R) Vena Cava Filter" ("Bard IVC Filter"). C.R. Bard, Inc., is a Delaware corporation headquartered in Murray Hill, New Jersey. Bard Peripheral Vascular, Inc., is a wholly owned subsidiary corporation of Bard, with its principal place of business located in Tempe, Arizona. The Defendants designed, set specifications, manufactured, prepared, compounded, assembled, processed, marketed, distributed, and sold the Denali(R) Filter system to be implanted in patients throughout the United States, including Georgia and New Jersey. Plaintiff Pamela Spencer is represented by: Christopher A. Seeger, Esq. SEEGER WEISS LLP 550 Broad Street, Suite 920 Newark, NJ 07102 Telephone: (973) 639-9100 Facsimile: (973) 639-9393 E-mail: cseeger@seegerweiss.com - and - Jeffrey S. Grand, Esq. SEEGER WEISS LLP 77 Water Street, 26th Floor New York, NY 10005 Telephone: (212) 584-0700 Facsimile: (212) 584-0799 E-mail: jgrand@seegerweiss.com CR BARD: "Watson" Suit Consolidated in IVC Filters Products MDL --------------------------------------------------------------- The lawsuit entitled Watson v. C.R. Bard Incorporated, et al., Case No. 2:16-cv-02576, was transferred from the U.S. District Court for the District of New Jersey to the U.S. District Court of the District of Arizona (Phoenix Division). The Arizona District Court Clerk assigned Case No. 2:16-cv-02753-DGC to the proceeding. The case is consolidated in the multidistrict litigation titled IN RE: Bard IVC Filters Products Liability Litigation, MDL No. 2:15- md-02641-DGC. The Plaintiffs in the litigation seek damages relating to the Defendants' development, testing, assembling, manufacturing, packaging, labeling, preparing, distribution, marketing, supplying, and selling of the allegedly defective product sold under the name Bard "Denali(R) Vena Cava Filter" ("Bard IVC Filter"). C.R. Bard, Inc., is a Delaware corporation headquartered in Murray Hill, New Jersey. Bard Peripheral Vascular, Inc., is a wholly owned subsidiary corporation of Bard, with its principal place of business located in Tempe, Arizona. The Defendants designed, set specifications, manufactured, prepared, compounded, assembled, processed, marketed, distributed, and sold the Denali(R) Filter system to be implanted in patients throughout the United States, including Georgia and New Jersey. The Plaintiff is represented by: Christopher A. Seeger, Esq. SEEGER WEISS LLP 550 Broad Street, Suite 920 Newark, NJ 07102 Telephone: (973) 639-9100 Facsimile: (973) 639-9393 E-mail: cseeger@seegerweiss.com - and - Jeffrey S. Grand, Esq. SEEGER WEISS LLP 77 Water Street, 26th Floor New York, NY 10005 Telephone: (212) 584-0700 Facsimile: (212) 584-0799 E-mail: jgrand@seegerweiss.com CREATIVE RENOVATIONS: Garcia Seeks to Recover Unpaid Overtime ------------------------------------------------------------- JOSE LUIS GARCIA, FELIX FLORES, RAFAEL HERNANDEZ, JOSE MIGUEL REYES, GERARDO AYALA and BRYAN AYALA, Individually and on Behalf of the Putative Class Members v. CREATIVE RENOVATIONS, LLC and ABDULHADI "SAM" AHMAD, Jointly and Severally, Case No. 514339/2016 (N.Y. Sup. Ct., August 16, 2016), seeks to recover unpaid overtime premium pay owed to the Plaintiffs pursuant to the New York Labor Law. The Plaintiffs are former laborers and carpenters at the Defendants' construction and renovations company located in Brooklyn, New York. The Plaintiffs allege that while working for the Defendants, they primarily performed non-exempt manual labor yet were paid on a purported "salary" basis, which did not include overtime premiums for hours worked over 40 in a given workweek. Creative Renovations, LLC, is an active New York limited liability company with its principal place of business in Brooklyn, New York. Abdulhadi "Sam" Ahmad is an owner and operator of the Company. The Defendants have operated a residential and commercial construction and renovations company. The Plaintiffs are represented by: Brent E. Pelton, Esq. Taylor B. Graham, Esq. PELTON GRAHAM LLC 111 Broadway, Suite 1503 New York, NY 10006 Telephone: (212) 385-9700 E-mail: pelton@peltongraham.com graham@peltongraham.com CREDIT ONE BANK: "Beattie" TCPA Action Stayed Pending Arbitration ----------------------------------------------------------------- District Judge Lawrence E. Kahn of the United States District Court for the Northern District of New York granted Defendant's motion to stay and compel arbitration in the case captioned, RODNEY BEATTIE, Plaintiff, v. CREDIT ONE BANK, Defendant, Case No. 5:15-CV-1315 (LEK/TWD) (N.D.N.Y.). Rodney Beattie (Plaintiff) commenced an action against Credit One Bank, N.A. (Defendant) for violation of the Telephone Consumer Protection Act (TCPA). Since 2013, Plaintiff has had a credit card account with Defendant. Originally, Plaintiff consented to Defendant contacting him on his cellphone concerning his credit card account. Plaintiff opened his account with Defendant on or about October 2, 2013, by applying through Credit One's website. Upon approval of the online application, Defendant mailed a credit card to Plaintiff and enclosed within the same envelope a copy of the "Visa/Mastercard Cardholder Agreement, Disclosure Statement and Arbitration Agreement." In September 2015, Plaintiff revoked his consent for Defendant to contact him through his cellphone. Defendant acknowledged Plaintiff's revocation but continued to make "multiple telephone calls" to Plaintiff from September through October 2015. Defendant moved to stay and compel arbitration on January 25, 2016, pursuant to the Federal Arbitration Act, (FAA). Defendant argues that Plaintiff's acceptance and repeated use of a credit card demonstrates Plaintiff's acceptance of the Cardholder Agreement. Plaintiff argues that a generic agreement and affidavit are insufficient to prove that an arbitration agreement exists. In his Memorandum-Decision and Order dated August 9, 2016 available at https://is.gd/FTaY4c from Leagle.com, Judge Kahn found that Plaintiff's TCPA claims are subject to arbitration and that since the sole claim set forth by Plaintiff to be subject to the arbitration clause, the proceedings in the action must also be stayed pending the outcome of the arbitration. Rodney Beattie is represented by Craig T. Kimmel, Esq. -- kimmel@creditlaw.com -- KIMMEL, SILVERMAN LAW FIRM Credit One Bank is represented by Michael Del Valle, Esq. -- mdelvalle@sessions.legal -- SESSIONS, FISHMAN LAW FIRM D.R. HORTON: "Vitale" Case Goes Back to State Court --------------------------------------------------- District Judge Derrick K. Watson of the United States District Court for the District of Hawaii remanded to state court the case captioned, Charles Vitale et al., Plaintiffs, v. D.R. Horton, Inc., et al., Defendants, Case No. CV No. 15-00312 DKW-KSC (D. Haw.). D.R. Horton, Inc. and D.R. Horton-Schuler Homes, LLC developed, constructed, and sold thousands of single-family homes and condominiums in the State of Hawai'i that Plaintiffs allege contain defective, embedded hurricane straps. The Plaintiffs filed the action on July 13, 2015 in Hawai'i state court on behalf of themselves and a class of similarly situated home-purchasers. The class is defined as "All individuals and entities that own Horton Homes constructed with hurricane straps embedded in the foundations substantially completed on or after July 13, 2005 in the State of Hawai'i, and all homeowners associations whose members consist of such individual and entity homeowners. Plaintiffs have identified 3,300 putative class members, over 2,900 of whom they claim are citizens of the State of Hawai'i. Defendants removed the action on August 10, 2015 based on the Court's original subject matter jurisdiction under CAFA, asserting that CAFA's minimal diversity requirement had been met because Plaintiffs are domiciled in and citizens of Hawaii and Horton Inc. is a Delaware corporation with a principal place of business in Texas. The case was stayed by stipulation of the parties on August 20, 2015 and the stay was officially lifted as of March 30, 2016. In his Order dated August 9, 2016 available at https://is.gd/TKzg67 from Leagle.com, Judge Watson concluded that even if not all of the 99.7% of class members with mailing addresses in California do not actually reside or intend to remain Hawaii, over 300 employees would have to be non-California citizens before the class fell below the two-thirds threshold. Because Section 1332(d)(4)(A) controls, the Court shall decline to exercise jurisdiction and, accordingly, remands the case to state court. The Clerk of Court is directed to send a certified copy of the order to the Circuit Court of the First Circuit, State of Hawaii. Charles Vitale et al. are represented by Celene S. Chan, Esq. -- cchan@klwtlaw.com -- Glenn K. Sato, Esq. -- gsato@klwtlaw.com -- Graham B. LippSmith, Esq. -- glippsmith@klwtlaw.com -- KASDAN LIPPSMITH WEBER TURNER LLP D.R. Horton, Inc et al is represented by Charles W. Gall, Esq. -- cwg@ksglaw.com -- Craig K. Shikuma, Esq. -- cks@ksglaw.com -- David M. Louie, Esq. -- dml@ksglaw.com -- Nicholas R. Monlux, Esq -- nrm@ksglaw.com -- KOBAYASHI SUGITA & GODA. DNC SERVICES: Plaintiff's Attorney in Fraud Class Action Dies ------------------------------------------------------------- Global Research News reports that since the filing of the fraud and consumer class action captioned Wilding et al. v. DNC Services Corp. et al., Attorney Shawn Lucas died under mysterious circumstances. A young attorney, he was 38 years old with a firm commitment to Social Justice and Truth in Politics. The class action includes 121 Plaintiffs. Shawn Lucas, who served the DNC and Debbie Wasserman Schultz with election fraud papers in early July "has been found dead under suspicious circumstances" "According to a police report dated August 2nd, Lucas' girlfriend came home and found him unconscious on the bathroom floor. Paramedics responding to her 911 call found no signs of life. The cause of death has not been confirmed. Shawn Lucas was known to many frustrated Democrats as the young man depicted in a viral video serving the DNC and Wasserman Schultz with election fraud lawsuit papers. "The rumor spread on Facebook, Reddit, and Twitter, where many users were concerned that Lucas' death may have been connected to his role as the process server for the DNC lawsuit. Some versions asserted Lucas was the "lead attorney" on the case, but we were unable to corroborate that claim. Mr. Lucas was named in a motion filed on July 22, 2016, by the DNC, seeking to dismiss the suit on partial grounds of improper service," Snopes reports. DUMONT AIRCRAFT: Bid to Transfer Suit to Delaware Denied -------------------------------------------------------- District Judge William H. Orrick of the United States District Court for the Northern District of California denied Defendants' motion to transfer the case captioned, GUY T. SAPERSTEIN, Plaintiff, v. DUMONT AIRCRAFT SALES, LLC, et al., Defendants, Civil No. 16-CV-01926-WHO (N.D. Cal.), to the District of Delaware. Plaintiff Guy Saperstein, a resident of this district, brings the breach of contract action against defendants Dumont Aircraft Sales, LLC (Dumont) and Dumont employee Kevin Wargo, both residents of the District of Delaware. Saperstein's claims arise out of an unsuccessful negotiation between the parties for the purchase of a private jet. Saperstein and Wargo signed a letter of intent (LOI) on January 15, 2015. In accordance with the LOI, Saperstein transferred the $250,000 deposit to Dumont in two wire transfers on January 12, 2016 and January 15, 2016. Saperstein filed his complaint on April 12, 2016. He brings six causes of action: (1) fraudulent inducement; (2) negligent misrepresentation; (3) breach of contract; (4) rescission; (5) breach of the covenant of good faith and fair dealing; (6) conversion; and (7) money had and received. The first two causes of action are asserted against both Dumont and Wargo; the remaining five are asserted against only Dumont. Saperstein seeks damages, rescission, disgorgement, and costs of suit. He does not seek specific performance. Defendants move to transfer venue to the District of Delaware, arguing that the case should be transferred under 28 U.S.C. Sec. 1404(a) "for the convenience of the parties and witnesses" and "in the interest of justice." In his Order dated August 11, 2016 available at https://is.gd/uTMA7F from Leagle.com, Judge Orrick found that the action has sufficient contacts with the district for Saperstein's choice of forum to be afforded substantial weight. The defendants have not shown that there are any relevant documents that cannot be copied and transmitted or otherwise inspected with minimal inconvenience to defendants. The location of the documentary evidence does not favor transfer. Guy T. Saperstein is represented by Richard F. Munzinger, Esq. -- rmunzinger@sflaw.com -- Roey Rahmil, Esq. -- rrahmil@sflaw.com -- and Arthur Joel Shartsis, Esq. -- ashartsis@sflaw.com -- SHARTSIS FRIESE LLP Dumont Aircraft Sales, LLC and Kevin M. Wargo are represented by Julie Sandra Turner, Esq. -- turner@turnerboyd.com -- TURNER BOYD LLP EDEN MANAGEMENT: Plaintiffs May Amend Suit Over Medicaid Program ---------------------------------------------------------------- District Judge Joan B. Gottschall of the United States District Court for the Northern District of Illinois granted Plaintiffs' Motion for Leave to file their Second Amended Complaint and Motion for Reassignment of Cases in the case captioned, H.O.P.E., INC., d/b/a/HOPE FAIR HOUSING CENTER, an Illinois Not-for-Profit Corporation; KIMBERLY O'CONNOR; and TAMMY MORMINO; Plaintiffs, v. EDEN MANAGEMENT LLC d/b/a EDEN SUPPORTIVE LIVING; 311 LINCOLNWAY PROPERTIES LLC d/b/a/EDEN FOX VALLEY; 222 STATE STREET PROPERTIES LLC, d/b/a/EDEN CHAMPAIGN LLC; CHAMPAIGN CAPITAL VENTURE LLC; MICHAEL HAMBLET JR.; MARIA DROSOS; CARLEEN CURALLI; KIMBERLY CROSS; BRUCE V. RAUNER, in his official capacity as Governor of the State of Illinois; FELICIA F. NORWOOD, in her official capacity as Director of the Illinois Department of Healthcare and Family Services; TERESA HURSEY, in her official capacity as Acting Medicaid Director for HFS; KELLY CUNNINGHAM, in her official capacity as DHFS Deputy Administrator for Long Term Care; JENNIER REIF, in her official capacity as Acting Director of the Illinois Department on Aging; and JAMES DIMAS, in his official capacity as Secretary-designate of the Illinois Department of Human Services, Defendants, Case No. 13-CV-7391 (N.D. Ill.). Plaintiffs, Kimberly O'Connor and Tammy Mormino, are Medicaid recipients who believe they are eligible for the Illinois Medicaid Waiver Supportive Living Program on the basis of their physical disabilities. These two plaintiffs on behalf of themselves and a putative class, along with H.O.P.E., Inc., a private, nonprofit corporation, brought the suit against, inter alia, several current and former employees of the State of Illinois (State Defendants) as well as private entities (Eden Defendants) that operate certain Supportive Living Facilities (SLFs). Plaintiffs allege that the State Defendants have unlawfully excluded individuals with mental disabilities from participating in the Supportive Living Program (SLP) in violation of the Fair Housing Act (FHA), the Americans with Disabilities Act (ADA), and the Rehabilitation Act. The State Defendants moved to dismiss Counts IV, V, and VI of the Amended Complaint pursuant to Federal Rules of Civil Procedure (Rule) 12(b)(1) for lack of standing and 12(b)(6) to failure to state a claim. The court granted the State Defendants' motions to dismiss, finding that Plaintiffs lacked standing to sue the State Defendants. Because the court found that Plaintiffs lacked standing, it did not determine whether Plaintiffs adequately stated claims under the ADA, FHA, or the Rehabilitation Act. Before the court is Plaintiffs' Motion for Leave to file their Second Amended Complaint pursuant to Rule 15(a). In addition, Plaintiffs have filed a Motion for Reassignment of Cases as Related pursuant to Local Rule (LR). The State Defendants assert that Plaintiffs have not corrected the deficiencies identified in their FAC and therefore continue to lack standing to pursue Counts IV, V, and VI of the SAC. In her Memorandum Opinion and Order dated July 27, 2016 available at https://is.gd/F4LntC from Leagle.com, Judge Gottschall found that have adequately meet the minimum requirements of Article III standing in their SAC. Kimberly O'Connor, et al. are represented by Jennifer K. Soule, Esq. -- JSoule@SBLLegal.com -- and Kelly K. Lambert, Esq. -- Klambert@SBLLegal.com -- SOULE, BRADTKE & LAMBERT; Justin A. Haber, Esq. -- jhaber@kalcheimhaber.com -- KALCHEIM HABER, LLC; Susan Ann Silverstein, Esq. -- litigation@aarp.org -- AARP FOUNDATION LITIGATION. Theresa Eagelson Wyatt and Kelly Cunningham are represented by John E. Huston, Esq. -- bob_huston@yahoo.com -- ILLINOIS ATTORNEY GENERAL'S OFFICE EMBRAER SA: Faces Securities Class Action in New York ----------------------------------------------------- Pomerantz LLP on Aug. 8 disclosed that a class action lawsuit has been filed against Embraer S.A. ("Embraer" or the "Company") (NYSE:ERJ) and certain of its officers. The class action, filed in United States District Court, Southern District of New York, and docketed under 16-cv-06277, is on behalf of a class consisting of all persons or entities who purchased or otherwise acquired Embraer securities between April 16, 2012 and July 28, 2016 inclusive (the "Class Period"). This class action seeks to recover damages against Defendants for alleged violations of the federal securities laws under the Securities Exchange Act of 1934 (the "Exchange Act"). If you are a shareholder who purchased Embraer securities during the Class Period, you have until October 7, 2016 to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at www.pomerantzlaw.com To discuss this action, contact Robert S. Willoughby at rswilloughby@pomlaw.com or 888-476-6529 (or 888.4-POMLAW), toll free, ext. 9980. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and number of shares purchased. Embraer designs, develops, manufactures, and sells aircraft and systems in Brazil, North America, Latin America, the Asia-Pacific region, Europe, and internationally. The Complaint alleges that throughout the Class Period, Defendants made false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) the Company had paid bribes to officials in the Dominican Republic to secure contracts for the sale of aircraft; (ii) Embraer's President and Chief Executive Officer ("CEO"), Defendant Frederico Pinheiro Fleury Curado ("Curado") was aware of the bribery scheme; (iii) the foreseeable consequences of the foregoing conduct would cost Embraer hundreds of millions of dollars; and (iv) as a result of the foregoing, Defendants' statements about Embraer's business, operations, and prospects were false and misleading and/or lacked a reasonable basis. On November 1, 2013, after the market closed, The Wall Street Journal reported that Embraer was under investigation by the U.S. and Brazilian governments concerning bribery of Dominican Republic officials to secure a contract for the sale of military aircraft. On this news, Embraer's ADRs fell $0.17, or 0.57%, to close at $29.55 on November 4, 2013, the next trading day. On September 23, 2014, shortly before the market closed, The Wall Street Journal reported that Brazilian authorities had filed bribery charges against eight Embraer employees, claiming that they had bribed officials in the Dominican Republic to secure a $92 million contract. On this news, Embraer's ADRs fell $0.26, or 0.68%, to close at $38.25 on September 24, 2014. On March 16, 2016, after the market closed, various media outlets reported that Elio Moti Sonnenfeld ("Sonnenfeld"), a sales consultant who purportedly paid bribes on behalf of Embraer, had told Brazilian prosecutors that he believed the Company's top managers, including Defendant Curado, then CEO of Embraer, knew of the illicit payments made in connection with the Dominican Republic sales. On June 9, 2016, after the market closed, Embraer announced that Defendant Curado was stepping down from his position as CEO after 32 years with the Company, and that Paulo C‚sar de Souza e Silva would replace Curado as of July 2016. On this news, Embraer's ADRs fell $1.18, or 5.44%, to close at $20.51 on June 10, 2016. On July 29, 2016, Embraer filed a Form 6-K with the SEC, stating, in relevant part, that: [N]egotiations with the U.S. Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) for the settlement of the allegations of non-compliance with the U.S. Foreign Corrupt Practices Act (FCPA) have significantly progressed, to the point that Embraer is recognizing a US$ 200 million loss contingency in the quarter ended June 30, 2016. Embraer also announced its financial and operating results for the quarter ended June 30, 2016. Embraer reported, inter alia, the $200 million loss contingency and a net loss for the quarter totaling $99.4 million, or $0.55 per share. On this news, Embraer's ADRs fell $2.93, or 13.82%, to close at $18.27 on July 29, 2016. With offices in New York, Chicago, Florida, and Los Angeles, The Pomerantz Firm -- http://www.pomerantzlaw.com-- concentrates its practice in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, the Pomerantz Firm pioneered the field of securities class actions. Today, more than 80 years later, the Pomerantz Firm continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. ENERGY TRANSFER: Appeal in Regency Merger Litigation Pending ------------------------------------------------------------ Energy Transfer Partners, L.P. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 5, 2016, for the quarterly period ended June 30, 2016, that an appeal related to the Regency Merger Litigation remains pending. Following the January 26, 2015 announcement of the Regency Merger, purported Regency unitholders filed lawsuits in state and federal courts in Dallas and Delaware asserting claims relating to the Regency Merger. All Regency Merger-related lawsuits have been dismissed, although one lawsuit remains pending on appeal. On June 10, 2015, Adrian Dieckman ("Dieckman"), a purported Regency unitholder, filed a class action complaint on behalf of Regency's common unitholders in the Court of Chancery of the State of Delaware. The lawsuit alleges that the Regency Merger breached the Regency partnership agreement because Regency's conflicts committee was not properly formed, and the Regency Merger was not approved in good faith. Defendants filed a motion to dismiss, and on March 29, 2016, the Delaware court granted Defendants' motion and dismissed the lawsuit. On April 26, 2016, Dieckman filed his Notice of Appeal to the Supreme Court of Delaware. This appeal is styled Adrian Dieckman v. Regency GP LP, et al., No. 208, 2016, in the Supreme Court of the State of Delaware. Dieckman filed his Opening Brief on June 9, 2016, and Defendants' Answering Brief was due on July 29, 2016. ENOTECA INC: "Beresheim" Suit to Recover Overtime Pay ----------------------------------------------------- Daniel Beresheim, on behalf of himself and all others similarly situated, Plaintiff, v. Enoteca Inc. d/b/a La Lanterna, Vittorio Antonini and Vittorio Antonini, Jr., Defendants, Case No. 1:16-cv- 06312 (S.D. N.Y., August 9, 2016), seeks liquidated damages, penalties, costs of action including expert fees, attorneys' fees, pre-judgment and post-judgment interest and such other and further legal and equitable relief as the Court deems necessary pursuant to the Fair Labor Standards Act and New York Labor Law. Enoteca, Inc. is a New York corporation that operates La Lanterna restaurant in Manhattan where Plaintiff was employed as a server. Defendants allegedly paid Plaintiff an hourly rate below the federal and state minimum wage for regular and overtime hours worked. Plaintiff is represented by: D. Maimon Kirschenbaum, Esq. JOSEPH & KIRSCHENBAUM LLP 32 Broadway, Suite 601 New York, NY 10004 Tel: (212) 688-5640 Fax: (212) 688-2548 EVERBANK FINANCIAL: Robbins Arroyo Investigates Acquisition ----------------------------------------------------------- Shareholder rights attorneys at Robbins Arroyo LLP are investigating the proposed acquisition of EverBank Financial Corp. by Teachers Insurance & Annuity Association. On August 8, 2016, the two companies announced the signing of a definitive merger agreement pursuant to which Teachers Insurance will acquire EverBank. Under the terms of the agreement, EverBank shareholders will receive $19.50 for each share of EverBank common stock. Is the Proposed Acquisition Best for EverBank and Its Shareholders? Robbins Arroyo LLP's investigation focuses on whether the board of directors at EverBank is undertaking a fair process to obtain maximum value and adequately compensate its shareholders. The $19.50 merger consideration is significantly below the target prices of $22.00 set by an analyst at Maxim Group LLC on October 29, 2015 and $21.00 set by an analyst at Keefe, Bruyette & Woods on January 29, 2014. In the last three years, EverBank traded as high as $21.18 on October 23, 2015, and most recently traded above the merger consideration -- at $20.05 -- on October 28, 2015. EverBank shareholders have the option to file a class action lawsuit to ensure the board of directors obtains the best possible price for shareholders and the disclosure of material information. EverBank shareholders interested in information about their rights and potential remedies can contact attorney Darnell R. Donahue at (800) 350-6003, ddonahue@robbinsarroyo.com, or via the shareholder information form on the firm's website. Robbins Arroyo LLP is a securities litigation and shareholder rights law firm. The law firm represents individual and institutional investors in shareholder derivative and securities class action lawsuits. FAIRCHESTER SNACKS: Misclassifies Drivers, "Rhodes" Suit Asserts ---------------------------------------------------------------- HOWARD RHODES, on behalf of himself and all others similarly situated v. FAIRCHESTER SNACKS CORP., LORENZ SCHNEIDER CO., INC., and YORKSHIRE FOOD SALES CORP., Case No. 606231/2016 (N.Y. Sup. Ct., Nassau Cty., August 16, 2016), challenges the Plaintiff's and other drivers' unlawful misclassification as independent contractors instead of as employees, and seeks to recover alleged unpaid wages pursuant to New York Labor Law. The Defendants are New York domestic corporations headquartered in New Hyde Park, New York. They sell and distribute chips and other snack foods to customers. They employ the Plaintiff and similarly situated drivers to deliver the merchandise to their customer's businesses. The Plaintiff is represented by: Troy L. Kessler, Esq. Marijana Matura, Esq. Garrett Kaske, Esq. SHULMAN KESSLER LLP 534 Broadhollow Road, Suite 275 Melville, NY 11747 Telephone: (631) 499-9100 E-mail: tk@shulmankessler.com mm@shulmankessler.com gkaske@shulmankessler.com - and - Richard E. Hayber, Esq. Anthony J. Pantuso, III, Esq. HAYBER LAW FIRM, LLC 221 Main Street Hartford, CT 06106 Telephone: (860) 522-8888 E-mail: rhayber@hayberlawfirm.com apantuso@hayberlawfirm.com FCA US LLC: 6th Cir. Affirms Judgment on Pleadings -------------------------------------------------- Circuit Judge David McKeague of the Court of Appeals, Sixth District, affirmed the district court's order granting the motion for judgment on the pleadings in the case captioned, DARRELL HOLLAND, JR.; BRENDA BALDWIN; ANTHONY SOTO; JOHN DELL; JAMES MORALES; DAVID LOCKETT, Plaintiffs-Appellants, v. FCA US LLC, aka Fiat Chrysler Automobiles U.S., LLC, fka Chrysler Group, LLC, Defendant-Appellee, Case No. 15-4367 (6th Cir.). Darrell Holland, Jr., John Dell, David Lockett, Brenda Baldwin, Anthony Soto, and James Morales (Plaintiffs) sued FCA US LLC (FCA) after the engine cradles in their Chrysler Pacifica vehicles began to "prematurely rust, corrode and/or perforate." Plaintiffs filed their First Amended Class Action Complaint (Complaint) against FCA on April 6, 2015. The Plaintiffs and putative class members are owners of 2004-2008 Chrysler Pacifica vehicles "manufactured with Chrysler CS Platform engine cradles that prematurely rust, corrode and/or perforate creating a substantial risk of, or causing the engine to fall out of the vehicle." On September 17, 2015, FCA filed a motion for judgment on the pleadings, arguing that FCA had no legal duty to warn the Plaintiffs of or to repair the alleged engine cradle defect. On November 16, 2015, the district court granted FCA's motion for judgment on the pleadings, finding that the Plaintiffs had failed to "allege a relationship with FCA which would have created a duty on the part of FCA to warn Plaintiffs of the alleged defect or pay for repairs." The Plaintiffs raised two arguments on appeal: (1) the district court established the law of the case when it denied FCA's motion for summary judgment, and, even if not, (2) the district court erred in granting FCA's motion for judgment on the pleadings because the Plaintiffs pleaded sufficient facts to state claims upon which relief could be granted. In his Opinion dated August 16, 2016 available at https://is.gd/f4pzTO from Leagle.com, Judge McKeague held that Plaintiffs have failed to allege sufficient facts to state a claim and that the Plaintiffs have failed to sufficiently allege that FCA's failure to warn caused their injury to survive a motion for judgment on the pleadings. FIAT CHRYSLER: Sept. 27 Lead Plaintiff Motion Deadline Set ---------------------------------------------------------- Goldberg Law PC (the "Firm") on Aug. 8 disclosed that a class action lawsuit has been filed against Fiat Chrysler Automobiles N.V. ("Fiat" or the "Company"). Investors who purchased or otherwise acquired shares between October 29, 2014 and July 18, 2016 inclusive (the "Class Period") are encouraged to contact the Firm in advance of the September 27, 2016 lead plaintiff motion deadline. If you are a shareholder who suffered a loss during the Class Period, click here to participate. In addition, we advise you to contact Michael Goldberg or Brian Schall, of Goldberg Law PC, 1999 Avenue of the Stars, Suite 1100, Los Angeles, CA 90067, at 800- 977-7401, to discuss your rights without cost to you. You can also reach us through the firm's website at http://www.Goldberglawpc.comor by email at info@goldberglawpc.com. The class in this case has not yet been certified, and until certification occurs, you are not represented by an attorney. If you choose to take no action, you can remain an absent class member. The complaint alleges that throughout the Class Period, Fiat made false and misleading statements and/or failed to disclose material facts about its business and operations. Specifically, the Company misrepresented its growth by purposefully inflating the vehicle sales numbers of its U.S. subsidiary FCA US LLC and falsely touting its streak of U.S. monthly vehicle sales growth (on a year-over-year basis). On January 12, 2016, a civil lawsuit was filed against Fiat, alleging that the Company had inflated the number of year-over-year sales reported. Then on January 15, 2016, the Company filed a Form 6-K acknowledging that a lawsuit had been filed against FCA US LLC. When this information was disclosed, Fiat shares fell in value significantly, causing investors harm. Goldberg Law PC -- http://www.Goldberglawpc.com-- represents shareholders around the world and specializes in securities class actions and shareholder rights litigation. FINANCIAL AMERICAN: Sued Over Payment of Extraordinary Dividend --------------------------------------------------------------- Sheela K. O' Donnell, Individually and On Behalf of All Others Similarly Situated, the Plaintiff, v. Financial American Holdings Corporation c/o Corporate Service Company 2711 Centerville Rd. Suite 400 Wilmington, DE 19808; Financial American Life Insurance (FAMLI) Company c/o Robert B. Sullivan 6201 College Blvd., Suite 500 Overland Park, Kansas 66211; and Manuel Jacob Millor 12485 SW 137th Ave Ste 300 Miami, FL 33186, the Defendants, Case No. 2:16- cv-00798-GCS-TPK (S.D. Ohio, Aug. 17, 2016), seeks to recover funds that were fraudulently transferred from FAMLI to Holdings Corp. and its alter ego Millor in an effort to shield those assets from Plaintiff and the Class members. At or around the time of the $6,000,000 "extraordinary dividend, FAMLI" Millor falsely represented in sworn financial statements that the "Amount Claimed" in Plaintiff's class action complaint -- which FAMLI previous admitted in a court filing exceeded $5 million -- was only $31,000, and that the outcome of Plaintiff's case "will not have a materially adverse effect on the Company's results of operation, liquidity, or financial position." However, after FAMLI transferred the $6,000,000 to Holding Corp., FAMLI admitted in court filings in the O'Donnell case that its assets have been diminished to the point that it is "unlikely to be able to sustain the costs of a protracted class-action defense." FAMLI repeated the same statement (verbatim) in petitioning the Sixth Circuit for rehearing en banc, and in moving the Southern District of Ohio for a stay or proceedings. Indeed, the $6,000,000 extraordinary dividend FAMLI paid to Holdings Corp. allegedly exhausted FAMLI's assets to the point that the state insurance departments of at least California, Iowa, Virginia, and Washington suspended FAMLI's ability to write insurance in those states for failure to comply with the state's minimum capital requirements. FAMLI is a property and casualty insurance holding company. The Plaintiff is represented by: Jeffrey S. Goldenberg, Esq. Todd B. Naylor, Esq. Robert B. Sherwood, Esq. GOLDENBERG SCHNEIDER, LPA 1 West 4th Street, 18th Floor Cincinnati OH 45202 Telephone: (513) 345-8291 Facsimile: (513) 345-8294 E-mail: jgoldenberg@gs-legal.com tnaylor@gs-legal.com rsherwood@gs-legal.com - and - John M. Snider, Esq. STEBELTON, ARANDA & SNIDER, LPA 109 North Broad Street, Suite 200 P. O. Box 130 Lancaster, OH 43130 Telephone: (740) 654 4141 Facsimile: (740) 654 2521 E-mail: jms@sas-lawfirm.com FIRST NATIONAL: Negotiating Settlement in "Antonik" Suit -------------------------------------------------------- First National Community Bancorp, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 5, 2016, for the quarterly period ended June 30, 2016, that the parties are currently negotiating a Class Action Agreement and Release in the Steven Antonik lawsuit to be submitted to the Court for preliminary approval. On August 13, 2013, Steven Antonik, individually, as Administrator of the Estate of Linda Kluska, William R. Howells, and Louise A. Howells, on behalf of themselves and others similarly situated, filed a consumer protection class action against the Company and Bank in the Lackawanna County Court of Common Pleas, seeking equitable, injunction and monetary relief to address an alleged pattern and practice of wrong doing by the Bank relating to the repossession and sale of the Plaintiffs' and class members' financed motor vehicles. On December 17, 2015, the Honorable Margaret Moyle entered an Order outlining the primary terms of a tentative agreement to settle this matter, pending a finalized, more-detailed settlement agreement, class notice and a class fairness hearing, said Order covering both this matter and the matter involving Plaintiff Charles Saxe, III individually and on behalf of all others similarly situated. The primary terms of the tentative agreement to settle are 1) Defendants to pay the Plaintiffs' class members, which the Defendants have stated are approximately 430 members, the total sum of $750,000; 2) Plaintiffs will release all claims against Defendants; 3) Defendants will remove to vacate any judgements against any class members arising from the vehicle loans that are the subject of these actions; 4) Defendants will remove the trade line on each class member's credit report associated with the subject vehicle loans that are at issue in these actions for Experian, Equifax and TransUnion, providing Plaintiffs' counsel with verification of such; 5) Defendants will verify that the aggregate amount received from class members by Defendants and its agents during the alleged unjust enrichment class period does not exceed $45,000; and 6) Defendants will waive the disputed deficiency balances relating to the subject loans of each class member and agree not to issue IRS Forms 1099-C in connection with these deficiency waivers or to sell, assign , or otherwise collect on the alleged deficiencies. The parties are currently negotiating a Class Action Agreement and Release to be submitted to the Court for preliminary approval. FIRST NATIONAL: Negotiating Settlement in "Saxe" Suit ----------------------------------------------------- First National Community Bancorp, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 5, 2016, for the quarterly period ended June 30, 2016, that the parties are currently negotiating a Class Action Agreement and Release in the Charles Saxe, III lawsuit to be submitted to the Court for preliminary approval. On September 17, 2013, Charles Saxe, III individually and on behalf of all others similarly situated filed a consumer class action against the Bank in the Lackawanna County Court of Common Pleas alleging violations of the Pennsylvania Uniform Commercial Code in connection with the repossession and resale of financed vehicles. On December 17, 2015 the Honorable Margaret Moyle entered an Order outlining the primary terms of a tentative agreement to settle this matter, pending a finalized, more-detailed settlement agreement, class notice and a class fairness hearing, said Order covering both this matter and the matter involving Plaintiffs Steven Antonik, individually, as Administrator of the Estate of Linda Kluska, William R. Howells, and Louise A. Howells, on behalf of themselves and all others similarly situated. The primary terms of the tentative agreement to settle are 1) Defendants to pay the Plaintiffs' class members, which the Defendants have stated are approximately 430 members, the total sum of $750,000; 2) Plaintiffs will release all claims against Defendants; 3) Defendants will remove to vacate any judgements against any class members arising from the vehicle loans that are the subject of these actions; 4) Defendants will remove the trade line on each class member's credit report associated with the subject vehicle loans that are at issue in these actions for Experian, Equifax and TransUnion, providing Plaintiffs' counsel with verification of such; 5) Defendants will verify that the aggregate amount received from class members by Defendants and its agents during the alleged unjust enrichment class period does not exceed $45,000; and 6) Defendants will waive the disputed deficiency balances relating to the subject loans of each class member and agree not to issue IRS Forms 1099-C in connection with these deficiency waivers or to sell, assign , or otherwise collect on the alleged deficiencies. The parties are currently negotiating a Class Action Agreement and Release to be submitted to the Court for preliminary approval. FLAGSHIP SB: "Garcia" Suit Seeks Overtime, Spread-of-Hours Pay -------------------------------------------------------------- Jose Ortiz Garcia and Paulino Galvez Braulio, individually and on behalf of others similarly situated, Plaintiffs, v. Flagship SB Amsterdam NY LLC (d/b/a Saravanaa Bhavan), Mathaiah Ramaiah and Shahul Ramaiah Veena Hameed, Defendants, Case No. 1:16-cv-06322 (S.D. N.Y., August 9, 2016), seeks unpaid minimum, overtime wages and spread of hours premium pursuant to the Fair Labor Standards Act of 1938 and New York Labor Law. Defendants own, operate and control an Indian restaurant located at 413 Amsterdam Avenue, New York, NY 10024, under the name "Saravanaa Bhavan" with Mathaiah Ramaiah and Shahul Ramaiah Veena Hameed as owners. Plaintiffs were employed by Defendants as delivery workers. Plaintiff is represented by: Michael A. 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 FORD MOTOR: Wins Summary Judgment in Suit Over 2005 SUVs -------------------------------------------------------- District Judge Eduardo C. Robreno of the United States District Court for the Eastern District of Pennsylvania granted summary judgment in favor of Ford as to all claims in the case captioned, JASON SCHMIDT, et al., Plaintiffs, v. FORD MOTOR COMPANY, Defendant. DEBORAH GILL, et al., Plaintiffs, v. FORD MOTOR COMPANY, Defendant, Case No. 12-7222, 13-7254(E.D. Pa.). Before the Court are two consolidated actions arising from Plaintiffs Jason Schmidt, Stephen Gooder, and Samuel and Deborah Gill's product liability claims against Defendant Ford Motor Company. Plaintiffs are the owners of 2005 Ford Expeditions with 5.4L V8 engines. According to the Complaint, these vehicles and their engines contain a defect in the throttle bodies, which causes a loss of power during acceleration. Plaintiffs seek monetary and injunctive relief on behalf of a class of similarly situated consumers. The remaining claims in the consolidated actions are (1) the Schmidt's claims of breach of express and implied warranties; (2) the Gills' claims for breach of express and implied warranties; and (3) Gooder's claim for unjust enrichment. Ford moves for summary judgment as to all remaining claims. Ford argues first that Schmidt's and the Gills' breach of express warranty claims fail because any applicable express warranty has expired. Ford also argues that the Gills' breach of express warranty claim fails because the Gills did not rely on the existence of the warranty when purchasing their vehicle. Next, Ford argues that Schmidt's and the Gills' breach of implied warranty claims fail because their claims are untimely and they have not demonstrated that Ford violated any implied warranty with respect to their vehicles. Finally, Ford argues that Gooder's unjust enrichment claim fails because there is no underlying basis for the claim under Illinois law and Gooder has not established that Ford has unfairly retained a benefit. In his Memorandum dated August 1, 2016 available at https://is.gd/8JHAKj from Leagle.com, Judge Robreno found that Plaintiff has failed to show that there is a genuine issue of material fact because there is no evidence that Ford received a profit, either directly or indirectly, from Gooder. Jason Schmidt, et al. are represented by Julie Parker Thompson, Esq. -- jthompson@anapolwiess.com -- Larry E. Coben, Esq. -- lcoben@anapolweiss.com -- and Sol H. Weiss , Esq. -- sweiss@anapolwiess.com -- ANAPOL SCHWARTZ WEISS COHAN FELDMAN & SMALLEY PC; Eric B. Snyder, Esq. -- esnyder@baileyglasser.com -- BAILEY & GLASSER Ford Motor Company is represented by J. Tracy Walker, IV, Esq. -- twalker@mcguirewoods.com -- Perry W. Miles, IV, Esq. -- and Richard Charles Beaulieu, Esq. -- MCGUIRE WOODS LLP; Janet L. Conigliaro, Esq. -- jconigliaro@dykema.com -- DYKEMA GOSSETT PLLC; Emily J. Rogers, Esq. -- erogers@Campbell-trial-lawyers.com -- and William J. Conroy, Esq. -- wconroy@campbell-trial-lawyers.com -- CAMPBELL CAMPBELL EDWARDS & CONROY PC GOLDMAN SACHS: Still Defends Against Cobalt Securities Case ----------------------------------------------------------- The Goldman Sachs Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 4, 2016, for the quarterly period ended June 30, 2016, that the Company continues to defend against the Cobalt International Energy Securities Litigation. Cobalt International Energy, Inc. (Cobalt), certain of its officers and directors (including employees of affiliates of Group Inc. who served as directors of Cobalt), affiliates of shareholders of Cobalt (including Group Inc.) and underwriters (including Goldman, Sachs & Co. (GS&Co.)) for certain offerings of Cobalt's securities are defendants in a putative securities class action filed on November 30, 2014 in the U.S. District Court for the Southern District of Texas. The consolidated amended complaint, filed on May 1, 2015, asserts claims under the federal securities laws, seeks compensatory and rescissory damages in unspecified amounts and alleges material misstatements and omissions concerning Cobalt in connection with a $1.67 billion February 2012 offering of Cobalt common stock, a $1.38 billion December 2012 offering of Cobalt's convertible notes, a $1.00 billion January 2013 offering of Cobalt's common stock, a $1.33 billion May 2013 offering of Cobalt's common stock, and a $1.30 billion May 2014 offering of Cobalt's convertible notes. The consolidated amended complaint alleges that, among others, Group Inc. and GS&Co. are liable as controlling persons with respect to all five offerings. The consolidated amended complaint also seeks damages from GS&Co. in connection with its acting as an underwriter of 14,430,000 shares of common stock representing an aggregate offering price of approximately $465 million, $690 million principal amount of convertible notes, and approximately $508 million principal amount of convertible notes in the February 2012, December 2012 and May 2014 offerings, respectively, for an aggregate offering price of approximately $1.66 billion. On January 19, 2016, the court granted, with leave to replead, the underwriter defendants' motions to dismiss as to claims by plaintiffs who purchased Cobalt securities after April 30, 2013, but denied the motions to dismiss in all other respects. Defendants' ensuing motions to certify that order for an interlocutory appeal were denied on March 14, 2016. Cobalt, certain of its officers and directors (including employees of affiliates of Group Inc. who served as directors of Cobalt), certain shareholders of Cobalt (including funds affiliated with Group Inc.), and affiliates of these shareholders (including Group Inc.) are defendants in a putative shareholder derivative action filed on May 6, 2016 in Texas District Court, Harris County. As to the director and officer defendants (including employees of affiliates of Group Inc. who served as directors of Cobalt), the petition alleges that they breached their fiduciary duties under state law by making materially false and misleading statements concerning Cobalt in disclosures filed in connection with a May 2013 common stock offering. As to the shareholder defendants and their affiliates (including Group Inc. and several affiliated funds), the petition also alleges that they breached their fiduciary duties by selling Cobalt securities in the May 2013 offering on the basis of inside information. The petition seeks, among other things, unspecified monetary damages and disgorgement of proceeds from the sale of Cobalt common stock. GOLDMAN SACHS: Wants Intervenors' Claims in Employee Suit Nixed --------------------------------------------------------------- The Goldman Sachs Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 4, 2016, for the quarterly period ended June 30, 2016, that the defendants have moved to dismiss the claims of the intervenors for lack of standing and mootness. On September 15, 2010, a putative class action was filed in the U.S. District Court for the Southern District of New York by three female former employees alleging that Group Inc. and Goldman, Sachs & Co. (GS&Co.) have systematically discriminated against female employees in respect of compensation, promotion, assignments, mentoring and performance evaluations. The complaint alleges a class consisting of all female employees employed at specified levels in specified areas by Group Inc. and GS&Co. since July 2002, and asserts claims under federal and New York City discrimination laws. The complaint seeks class action status, injunctive relief and unspecified amounts of compensatory, punitive and other damages. On July 17, 2012, the district court issued a decision granting in part Group Inc.'s and GS&Co.'s motion to strike certain of plaintiffs' class allegations on the ground that plaintiffs lacked standing to pursue certain equitable remedies and denying Group Inc.'s and GS&Co.'s motion to strike plaintiffs' class allegations in their entirety as premature. On March 21, 2013, the U.S. Court of Appeals for the Second Circuit held that arbitration should be compelled with one of the named plaintiffs, who as a managing director was a party to an arbitration agreement with the firm. On March 10, 2015, the magistrate judge to whom the district judge assigned the remaining plaintiffs' May 2014 motion for class certification recommended that the motion be denied in all respects. On August 3, 2015, the magistrate judge denied plaintiffs' motion for reconsideration of that recommendation and granted the plaintiffs' motion to intervene two female individuals, one of whom was employed by the firm as of September 2010 and the other of whom ceased to be an employee of the firm subsequent to the magistrate judge's decision. On June 6, 2016, the district court affirmed the magistrate judge's decision on intervention. On September 28, 2015, and by a supplemental motion filed July 11, 2016 (after the second intervenor ceased to be an employee), the defendants moved to dismiss the claims of the intervenors for lack of standing and mootness. GOLDMAN SACHS: Defending Suit Over ERISA Employee Benefit Plans --------------------------------------------------------------- The Goldman Sachs Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 4, 2016, for the quarterly period ended June 30, 2016, that Goldman, Sachs & Co. (GS&Co.) and Group Inc. are among the defendants named in a putative class action filed in the U.S. District Court for the Southern District of New York on June 3, 2015 and most recently amended on July 15, 2016 on behalf of certain ERISA employee benefit plans. The claims brought against GS&Co. and Group Inc. generally allege that the defendants violated ERISA in connection with an alleged conspiracy to manipulate the foreign currency exchange markets, which caused losses to ERISA plans for which the defendants provided foreign exchange services or otherwise authorized the execution of foreign exchange services. Plaintiffs seek declaratory and injunctive relief as well as restitution and disgorgement in an unspecified amount. On June 1, 2016, the court enjoined the claims as to GS&Co., Group Inc. and other defendants who have settled in the consolidated action, to the extent that they involve allegations of collusive conduct at issue in the consolidated action. GOLDMAN SACHS: Updates on Municipal Securities Matters ------------------------------------------------------ The Goldman Sachs Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 4, 2016, for the quarterly period ended June 30, 2016, that GS&Co. (along with, in some cases, other financial services firms) is named by municipalities, municipal-owned entities, state-owned agencies or instrumentalities and non-profit entities in a number of FINRA arbitrations and federal court cases based on Goldman, Sachs & Co. (GS&Co.)'s role as underwriter of the claimants' issuances of an aggregate of approximately $834 million of auction rate securities from 2003 through 2007 and as a broker-dealer with respect to auctions for these securities. The claimants generally allege that GS&Co. failed to disclose that it had a practice of placing cover bids in auctions, and/or failed to inform the claimant of the deterioration of the auction rate market beginning in the fall of 2007, and that, as a result, the claimant was forced to engage in a series of expensive refinancing and conversion transactions after the failure of the auction market in February 2008. Certain claimants also allege that GS&Co. advised them to enter into or continue with interest rate swaps in connection with their auction rate securities issuances, causing them to incur additional losses. The claims include breach of fiduciary duty, fraudulent concealment, negligent misrepresentation, breach of contract, violations of the Exchange Act and state securities laws, and breach of duties under the rules of the Municipal Securities Rulemaking Board and the NASD. Certain of the arbitrations have been enjoined in accordance with the exclusive forum selection clauses in the transaction documents. In addition, GS&Co. has filed motions with the FINRA Panels to dismiss the arbitrations, one of which has been granted, and has filed motions to dismiss three of the proceedings pending in federal court, one of which was granted but has been appealed and one of which was denied. GS&Co. has also reached settlements or settlements in principle in nine other actions and one other action was voluntarily dismissed. GOLDMAN SACHS: Updates on US Treasury Securities Litigation ----------------------------------------------------------- The Goldman Sachs Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 4, 2016, for the quarterly period ended June 30, 2016, that Goldman, Sachs & Co. (GS&Co.) is among the primary dealers named as defendants in several putative class actions relating to the market for U.S. Treasury securities, filed beginning in July 2015 and consolidated in the U.S. District Court for the Southern District of New York. The complaints generally allege that the defendants violated the federal antitrust laws and the Commodity Exchange Act in connection with an alleged conspiracy to manipulate the when- issued market and auctions for U.S. Treasury securities, as well as related futures and options, and seek declaratory and injunctive relief, treble damages in an unspecified amount and restitution. GOLDMAN SACHS: Still Defends Interest Rate Swap Antitrust Suit -------------------------------------------------------------- The Goldman Sachs Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 4, 2016, for the quarterly period ended June 30, 2016, that the Company still defends interest rate swap antitrust litigation. Group Inc., Goldman, Sachs & Co. (GS&Co.), GSI, GS Bank USA and Goldman Sachs Financial Markets, L.P. (GSFM) are among the defendants named in putative antitrust class actions relating to the trading of interest rate swaps, filed beginning in November 2015 and consolidated in the U.S. District Court for the Southern District of New York. The complaints generally allege a conspiracy among the dealers and brokers since at least January 1, 2007 to preclude exchange trading of interest rate swaps. The complaints seek declaratory and injunctive relief as well as treble damages in an unspecified amount. Group Inc., GS&Co., GSI, GS Bank USA and GSFM are among the defendants named in antitrust actions relating to the trading of interest rate swaps filed in the U.S. District Court for the Southern District of New York beginning in April 2016 by operators of swap execution facilities and certain of their affiliates. The complaints generally assert claims under federal and state antitrust laws and state common law in connection with an alleged conspiracy among the defendants to preclude trading of interest rate swaps on the plaintiffs' respective swap execution facilities and seek declaratory and injunctive relief as well as treble damages in an unspecified amount. These actions have been consolidated with the class action described above for pretrial proceedings. GOLDMAN SACHS: Still Defends ISDAFIX-Related Litigation ------------------------------------------------------- The Goldman Sachs Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 4, 2016, for the quarterly period ended June 30, 2016, that Group Inc. is among the defendants named in several putative class actions relating to trading in interest rate derivatives, filed beginning in September 2014 and most recently amended on February 12, 2015 in the U.S. District Court for the Southern District of New York. The plaintiffs assert claims under the federal antitrust laws and state common law in connection with an alleged conspiracy to manipulate the ISDAFIX benchmark and seek declaratory and injunctive relief as well as treble damages in an unspecified amount. On March 28, 2016, the district court denied defendants' motion to dismiss as to the antitrust, breach of contract, and unjust enrichment claims, but dismissed the tortious interference and implied covenant of good faith claims with prejudice. HAIN CELESTIAL: Faces "Spadola" Securities Class Action ------------------------------------------------------- JAMES SPADOLA, Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. THE HAIN CELESTIAL GROUP, INC., IRWIN DAVID SIMON and PASQUALE CONTE, the Defendants, Case No. 2:16-cv-04597 (E.D.N.Y, Aug. 17, 2016), seeks to recover compensatory damages in favor of plaintiff and the other Class members against all defendants, jointly and severally, for all damages sustained as a result of Defendants' wrongdoing, in an amount to be proven at trial, including interest. The Defendants issued alleged materially false and misleading statements regarding the Company's business, prospects and financial results. Specifically, Hain improperly recognized revenues on what were actually customer concessions. The accounting misstatements also rendered the Company's 2016 financial guidance materially false and misleading. Additionally, the Company failed to disclose the material defects in its internal controls and procedures over financial reporting and disclosure that caused the accounting misstatements. As a result of Defendants' false statements, Hain securities traded at artificially inflated prices, with stock prices reaching a high of $56.99 per share in intraday trading on August 12, 2016. Hain manufactures, markets, distributes, and sells organic and natural products in the United States, the United Kingdom, Canada, and Europe. The Plaintiff is represented by: Samuel H. Rudman, Esq. Mario Alba Jr., Esq. Mary K. Blasy, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 58 South Service Road, Suite 200 Melville, NY 11747 Telephone: 631 367 7100 Facsimile: 631 367 1173 E-mail: srudman@rgrdlaw.com malba@rgrdlaw.com mblasy@rgrdlaw.com - and - Frank J. Johnson, Esq. W. Scott Holleman, Esq. JOHNSON & WEAVER, LLP 600 West Broadway, Suite 1540 San Diego, CA 92101 Telephone: (619) 230 0063 Facsimile: (619) 255 1856 E-mail: frankj@johnsonandweaver.com scotth@johnsonandweaver.com HAWAIIAN ELECTRIC: Consolidated Merger Class Suit Remains Pending ----------------------------------------------------------------- Hawaiian Electric Industries, Inc. and Hawaiian Electric Company, Inc. said in their Form 10-Q Report filed with the Securities and Exchange Commission on August 4, 2016, for the quarterly period ended June 30, 2016, that consolidated state court actions related to a merger agreement remain pending. Since the December 3, 2014 announcement of the merger agreement with NextEra Energy, Inc. (NEE), eight purported class action complaints were filed in the Circuit Court of the First Circuit for the State of Hawaii by alleged stockholders of HEI against HEI, Hawaiian Electric (in one complaint), the individual directors of HEI, NEE and NEE's acquisition subsidiaries. The lawsuits are captioned as follows: Miller v. Hawaiian Electric Industries, Inc., et al., Case No. 14-1-2531-12 KTN (December 15, 2014) (the Miller Action); Walsh v. Hawaiian Electric Industries, Inc., et al., Case No. 14-1-2541-12 JHC (December 15, 2014) (the Walsh Action); Stein v. Hawaiian Electric Industries, Inc., et al., Case No. 14-1-2555-12 KTN (December 17, 2014) (the Stein Action); Brown v. Hawaiian Electric Industries, Inc., et al., Case No. 14-1-2643-12 RAN (December 30, 2014) (the Brown Action); Cohn v. Hawaiian Electric Industries, Inc., et al., Case No. 14-1-2642- 12 KTN (December 30, 2014) (the Cohn State Action); Guenther v. Watanabe, et al., Case No. 15-1-003-01 ECN (January 2, 2015) (the Guenther Action); Hudson v. Hawaiian Electric Industries, Inc., et al., Case No. 15-1-0013-01 JHC (January 5, 2015) (the Hudson Action); Grieco v. Hawaiian Electric Industries, Inc., et al., Case No. 15-1-0094-01 KKS (January 21, 2015) (the Grieco Action). On January 12, 2015, plaintiffs in the Miller Action, the Walsh Action, the Stein Action, the Brown Action, the Guenther Action, and the Hudson Action filed a motion to consolidate their actions and to appoint co-lead counsel. On January 23, 2015, the Cohn State Action was voluntarily dismissed. On January 27, 2015, Cohn filed a purported class action captioned Cohn v. Hawaiian Electric Industries, Inc., et al., Civil No. 15-00029-JMS-RLP in the United States District Court for the District of Hawaii against HEI, the individual directors of HEI, NEE and NEE's acquisition subsidiaries (the Cohn Federal Action). On February 13, 2015, the state court orally granted the plaintiffs' motions to consolidate the seven state court actions and appoint co-lead counsel and entered a written order granting the motions on March 6, 2015. On March 10, 2015, plaintiffs filed a first consolidated complaint in state court that added as a defendant J.P. Morgan Securities, LLC (JP Morgan), the financial advisor to HEI for the Merger, and deleted Hawaiian Electric Company, Inc. as a defendant and concurrently served a first request for production of documents on HEI and the individual directors. On March 17, 2015, plaintiffs filed a motion for limited expedited discovery in the consolidated state action and thereafter on March 25, 2015 withdrew their request for limited discovery and first request for production of documents as a result of the parties' agreement to conduct certain specified limited discovery which included a stipulated confidentiality agreement and protective order protecting the confidentiality of certain information exchanged between the parties in connection with discovery in the consolidated action that was filed on April 6, 2015. On April 15 and 17, 2015, a deposition of a representative of HEI and a representative of JP Morgan were taken, respectively. On April 21, 2015, plaintiffs confirmed the cancellation of the preliminary injunction hearing that had been scheduled for May 5, 2015 in the consolidated action and on April 23, 2015, the state court entered a stipulation and order to extend indefinitely the time to answer or otherwise respond to the first amended consolidated complaint. On April 30, 2015, the state court entered a consolidated case management order confirming the consolidated treatment of the state actions for purposes of case management, pretrial discovery, procedural and other matters. On May 27, 2015, the federal court entered a stipulation and order approving the stipulation of the parties to stay the Cohn Federal Action pending the resolution of the state court consolidated action and administratively closing the Cohn Federal Action without prejudice to any party. On May 29, 2015, the state court entered a stipulated order amending the consolidated caption to read IN RE Consolidated HEI Shareholder Cases, Master File No. Civil No. 1CC15-1-HEI, to add JP Morgan as a named defendant in each individual action, add the caption for the Grieco Action, and remove Hawaiian Electric Company, Inc. from the caption in the Brown Action. In October 2015, several depositions of HEI representatives were taken in the state consolidated action. On February 9, 2016, plaintiffs filed an ex parte motion for second extension of time to file the pretrial statement in the state consolidated action from February 15, 2016 to August 15, 2016. Following the termination of the Merger Agreement, a stipulation and order for dismissal with prejudice of all claims and parties was entered by the court in the Cohn Federal Action on July 22, 2016. The consolidated state court actions remain pending. The pending consolidated state court actions allege, among other things, that members of HEI's Board of Directors (Board) breached their fiduciary duties in connection with the proposed transaction, and that the Merger Agreement involved an unfair price, was the product of an inadequate sales process, and contained unreasonable deal protection devices that purportedly precluded competing offers. The complaints further allege that HEI, NEE and/or its acquisition subsidiaries aided and abetted the purported breaches of fiduciary duty. The plaintiffs in the pending consolidated state actions also allege that JP Morgan had a conflict of interest in advising HEI because JP Morgan and its affiliates had business ties to and investments in NEE. The consolidated state action also alleges that the HEI Board violated its fiduciary duties by omitting material facts from the Registration Statement on Form S-4. The plaintiffs in these lawsuits seek, among other things, (i) a declaration that the Merger Agreement was entered into in breach of HEI's directors' fiduciary duties, (ii) an injunction enjoining the HEI Board from consummating the Merger, (iii) an order directing the HEI Board to exercise their duties to obtain a transaction which is in the best interests of HEI's stockholders, (iv) a rescission of the Merger to the extent that it is consummated, and/or (v) damages suffered as a result of the defendants' alleged actions. HEI and Hawaiian Electric believe the allegations in the complaints are without merit and are moot as a result of the termination of the Merger Agreement. HB MARBLE: Accused by "Ramirez" Suit of Not Paying Overtime Wages ----------------------------------------------------------------- WILBER RAMIREZ, on behalf of himself and others similarly situated v. HB MARBLE & GRANITE, LLC, a Florida Limited Liability Company and VALDINEI DESOUZA, Individually, Case No. 2:16-cv-OO638-UA-CM (M.D. Fla., August 16, 2016), accuses the Defendants of violating the Fair Labor Standards Act by paying the Plaintiff and those similarly situated the same hourly rate for all hours worked, irrespective of whether those hours were overtime hours or not. HB Marble & Granite, LLC, is a Florida Limited Liability Company, with its principal place of business in Lee County, Florida. Valdinei Desouza, is a resident of Florida, who owned and operated HB Marble. The Company sells, installs, services and repairs marble, granite and quartz products. The Plaintiff is represented by: Paul M. Botros, Esq. MORGAN & MORGAN, P.A. 600 N. Pine Island Rd., Suite 400 Plantation, FL 33324 Telephone: (954) 318-0268 Facsimile: (954)333-3517 E-mail: PBotros@forthepeople.com HERR FOODS: Court Rejects Bid to Strike Class Allegations --------------------------------------------------------- District Judge Eduardo C. Robreno of the United States District Court for the Eastern District of Pennsylvania ruled on Defendant's motion to dismiss and motion to strike in the case captioned, Kenneth Whitaket, Plaintiff, v. HERR Foods, Inc., Defendant, Civil Action No. 16-2017. (E.D. Pa.). Plaintiff Kenneth Whitaker filed the present action on behalf of himself and others similarly situated, based on Defendant's alleged (1) violation of Pennsylvania's Unfair Trade Practices and Consumer Protection Law (UTPCPL); (2) breach of express warranty; (3) fraudulent misrepresentation; (4) negligent misrepresentation; (5) breach of contract; and (6) unjust enrichment. Plaintiff alleges that Defendant "misbranded" approximately one dozen snack food products-namely, chips and pretzels. Defendant removed the action pursuant to the Class Action Fairness Act (CAFA). In the motion, Defendant argues that (1) Plaintiff's UTPCPL, fraud, and negligent misrepresentation claims do not satisfy Rule 9(b)'s particular pleading requirements; (2) Plaintiff's breach of contract claim fails for lack of privity; (3) Plaintiff's UTPCPL, fraud, and negligent misrepresentation claims are barred by the economic loss doctrine; (4) Plaintiff's fraud and negligent misrepresentation claims are barred by the gist of the action doctrine; (5) Plaintiff fails to state a claim for unjust enrichment; and (6) Plaintiff lacks standing to seek injunctive relief. The Defendant also moves to strike the class allegations. In his Memorandum dated July 29, 2016 available at https://is.gd/5eA5rd from Leagle.com, Judge Robreno found that Plaintiff's breach of contract claim would fail because there is no privity between Plaintiff and Defendant, and Plaintiff's UTPCPL claim will be dismissed pursuant to the economic loss doctrine because Plaintiff alleges only economic damages. The Court denied without prejudice Defendant's motion to strike the class allegations as premature. Kenneth Witaker is represented by Anthony J. Orshansky, Esq. -- anthony@counselonegroup.com -- Jeffrey N. Golant, Esq. -- jeffrey@counselonegroup.com -- and -- Justin Kachadoorian, Esq. -- justin@counselonegroup.com -- THE LAW OFFICES OF JEFFREY N. GOLANT -- COUNSELONE P.C. HERR Foods Inc. is represented by JASON CONFAIR, Esq-- confair@kkallaw.com -- KEGEL KELVIN ALMY & LORD LLP. HOMESERVE USA: Fails to Pay Overtime Under FLSA, Montero Alleges ---------------------------------------------------------------- ERNESTO MONTERO, CHARLES MCEWAN, CLINT MCCLEOD, CHARLES LUSCAVAGE, EDWARD B. THOMAS JR., MIKE DOHERTY, CHRISTOPHER TATE, WILLIAM STEBNER, CURTIS WILLIAMS, AARON GORDON, ANTHONY STERLINE, MICHAEL PHILBOTTS, LENIA TORRES, and RYAN DEOFARAN v. HOMESERVE USA CORP., Case No. 1:16-cv-04559 (E.D.N.Y., August 16, 2016), is a collective and class action brought pursuant to the Fair Labor Standards Act and of the New York Labor Law for the Defendant's alleged failure to pay overtime, minimum wage and "spread of hours." The Plaintiffs are mechanics employed by HomeServe, who service customers at their homes and who must utilize Company-owned vehicles. The Plaintiffs brought the Case on behalf of themselves and all similarly situated current and future employees, to wit, technician employees of the Defendant, who are unable to take home a company vehicle. HomeServe has its principal place of business in Norwalk, Connecticut. HomeServe employs more than 65 individuals as technicians out of its Queens location. HomeServe employs hundreds of other technicians at locations in New York and Connecticut. The Plaintiffs are represented by: Arthur Z. Schwartz, Esq. ADVOCATES FOR JUSTICE, CHARTERED ATTORNEYS 225 Broadway, Suite 1902 New York, NY 10007 Telephone: (212) 285-1400 E-mail: aschwartz@afjlaw.com HUGOTON ROYALTY TRUST: Non-Binding Mediation Set for September 1 ---------------------------------------------------------------- Hugoton Royalty Trust said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 4, 2016, for the quarterly period ended June 30, 2016, that a non-binding mediation is scheduled for September 1, 2016, in the class action lawsuit by Chieftain Royalty Company. In September 2008, a royalty class action lawsuit was filed against XTO Energy styled Wallace B. Roderick Revocable Living Trust, et al. v. XTO Energy Inc. in the District Court of Kearny County, Kansas. The case was removed to federal court in Wichita, Kansas. The plaintiffs allege that XTO Energy has improperly taken post production costs from royalties paid to the plaintiffs from wells located in Kansas, Oklahoma, and Colorado; later reduced to Kansas. The case was certified as a class action in March 2012. XTO Energy filed an appeal of the class certification to the 10th Circuit Court of Appeals on April 11, 2012, which was granted on June 26, 2012. The court reversed the certification of the class and remanded the case back to the trial court for further proceedings. The case was previously stayed pending a final decision from the Kansas Supreme Court on the Fawcett v. OPIK appeal. Following the decision in Fawcett, the Judge in Roderick ordered new briefing on the pending motions. In its pleadings, the plaintiff has alleged damages in excess of $40 million. On June 22, 2016, plaintiffs' Second Motion for Class Certification was denied. In December 2010, a royalty class action lawsuit was filed against XTO Energy styled Chieftain Royalty Company v. XTO Energy Inc. in Coal County District Court, Oklahoma. XTO Energy removed the case to federal court in the Eastern District of Oklahoma. The plaintiffs allege that XTO Energy wrongfully deducted fees from royalty payments on Oklahoma wells, failed to make diligent efforts to secure the best terms available for the sale of gas and its constituents, and demand an accounting to determine whether they have been fully and fairly paid gas royalty interests. The case was certified as a class action in April 2012. XTO Energy filed an appeal of the class certification to the 10th Circuit Court of Appeals on April 26, 2012, which was granted on June 26, 2012. The court reversed the certification of the class and remanded the case back to the trial court for further proceedings. A non-binding mediation is scheduled for September 1, 2016. XTO Energy has informed the trustee that it believes that XTO Energy has strong defenses to these lawsuits and intends to vigorously defend its position. However, XTO Energy has informed the trustee that it is cognizant of other, similar litigation. As these cases develop, XTO Energy will assess its legal position accordingly. If XTO Energy ultimately makes any settlement payments or receives a judgment against it in Chieftain or Roderick, XTO Energy has advised the trustee that the Trust should bear its 80% share of such settlement or judgment, including any future royalty adjustments that would reduce net proceeds. The trustee intends to review any claimed reductions in payment to the Trust based on the facts and circumstances of such settlement or judgment. In light of a 2014 arbitration decision in which a three panel tribunal decided that the settlement in Fankhouser v. XTO Energy, Inc, including a new royalty calculation for future royalty payments, could not be charged to the Trust, to the extent that the claims in Chieftain or Roderick are similar to those in Fankhouser the trustee would likely object to such claimed reductions. XTO Energy has informed the trustee that, although the amount of any reduction in net proceeds is not presently determinable, in its management's opinion, the amount is not currently expected to be material to the Trust's financial position or liquidity though it could be material to the Trust's annual distributable income. Additionally, XTO Energy has advised the trustee that any reductions would result in costs exceeding revenues on the properties underlying the net profit interests of the cases named above, as applicable, for several monthly distributions, depending on the size of the judgment or settlement, if any, and the net proceeds being paid at that time, which would result in the net profits interest being limited until such time that the revenues exceed the costs for those net profit interests. If there is a settlement or judgment and should XTO Energy and the trustee disagree concerning the amount of the settlement or judgment to be charged, if any, against the Trust's net profits interests, the matter will be resolved by binding arbitration through the American Arbitration Association under the terms of the Indenture creating the Trust. Certain of the underlying properties are involved in various other lawsuits and governmental proceedings arising in the ordinary course of business. XTO Energy has advised the trustee that it does not believe that the ultimate resolution of these claims will have a material effect on the financial position or liquidity of the Trust, but may have an effect on annual distributable income. HYLAND'S INC: Court Adopts Jury Verdict Tossing Consumer Claims --------------------------------------------------------------- District Judge Dolly M. Gee of the United States District Court for the Central District of California adopted a jury's verdict finding that Plaintiffs' False Advertising Law and California's Unfair Competition Law claims failed in the case captioned, KIM ALLEN, et al., Plaintiffs, v. HYLAND'S, INC., et. al., Defendants, Case No. CV 12-1150 DMG (MANx) (C.D. Cal.). The legal claims came before a jury during a 13-day trial that began on September 1, 2015. The jury returned a verdict in favor of Defendants Hylands, Inc. and Standard Homeopathic Company and against Plaintiffs Kim Allen, Melissa Nigh, Nancy Rodriguez, Diana Sisti, Sherrell Smith, Daniele Xenos, and Yuanke Xu as to the breach of express warranty, Magnuson-Moss Warranty Act (MMWA), and California Consumer Legal Remedies Act (CLRA) claims. Plaintiffs also brought equitable claims under California's Unfair Competition Law (UCL), Cal. Bus. & Prof. Code Sec. 17200 et seq. and False Advertising Law (FAL) on the same underlying facts as the breach of warranty, MMRA, and CLRA claims that they presented to the jury that Defendants' products did not perform as stated on the product packaging because they cannot relieve certain symptoms as represented. In her Findings dated August 16, 2016 available at https://is.gd/rttI64 from Leagle.com, Judge Gee found that Plaintiffs failed to prove by a preponderance of the evidence that Defendants' product advertisements were untrue, misleading, or likely to deceive the reasonable consumer and that Defendants violated any laws or offended any public policy tethered to specific constitutional, statutory, or regulatory provisions. Kim Allen, et al. are represented by John H. Gomez, Esq. -- john@gomeztrialattorneys.com -- and Kristen K. Barton, Esq. -- kbarton@gomeztrialattorneys.com -- GOMEZ TRIAL ATTORNEYS; Alexis M. Wood, Esq. -- alexis@consumersadvocates.com -- LAW OFFICES OF RONALD A. MARRON APLC; Gabriel Barenfeld, Esq. -- gbarenfeld@NFlawfirm.com -- and Gretchen M. Nelson, Esq. -- gnelson@nflawfirm.com -- NELSON AND FRAENKEL LLP; Stuart R. Fraenkel, Esq. -- SFraenkel@kreindler.com -- KREINDLER AND KREINDLER LLP Hylands Inc. and Standard Homeopathic Company are represented by Jade F. Jurdi, Esq. -- jade.jurdi@nortonrosefulbright.com -- Jeffrey B. Margulies, Esq. -- jeff.margulies@nortonrosefulbright.com -- Spencer Persson, Esq. -- spencer.persson@nortonrosefulbright.com -- and Stephanie Anne Stroup, Esq. -- stephanie.stroup@nortonrosefulbright.com -- NORTON ROSE FULBRIGHT US LLP INCONTACT INC: Court Consolidated 3 Class Actions ------------------------------------------------- inContact, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 5, 2016, for the quarterly period ended June 30, 2016, that three class action lawsuits against the Company have been consolidated. On June 10, 2016, a complaint captioned Natalie Gordon v. inContact, Inc., et al., Case No. 160903695 was filed in the Third Judicial District Court of Salt Lake County, State of Utah (the "Court") naming as defendants inContact and its Board of Directors (the "Gordon Action"). The plaintiff filed an amended complaint in the Gordon Action on July 1, 2016. On July 5, 2016, a complaint captioned David Stern v. inContact, Inc., et al., Case No. 160904200 was filed in the same Court naming as defendants inContact and its Board of Directors (the "Stern Action"). On July 8, 2016, a complaint captioned Andre Davis v. inContact. Inc., et al., Case No. 160904272 was filed in the same Court naming as defendants inContact, its Board of Directors, Parent and Merger Subsidiary (the "Davis Action"). On July 14, 2016 the Court ordered the three actions consolidated and designated the amended complaint in the Gordon action as the operative complaint. The consolidated action purports to be a class action brought by shareholders alleging that inContact's Board of Directors breached their fiduciary duties by approving the Merger Agreement with NICE pursuant to which the Company would be acquired as a wholly owned indirect subsidiary of NICE. The complaint seeks, among other things, either to enjoin the proposed transaction or to rescind the transaction in the event it is consummated. In management's view such litigation is a common occurrence in connection with acquisitions of public companies, regardless of any merits related to the underlying acquisition. The Company intends to defend against the actions vigorously. Defendants have not yet filed an answer to the consolidated complaint and the Company cannot predict at this time any possible outcome of the litigation. INOVALON HOLDINGS: Court Consolidated Xiang and Patel Actions ------------------------------------------------------------- Inovalon Holdings, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 4, 2016, for the quarterly period ended June 30, 2016, that the court has consolidated the Xiang and Patel actions. On June 24, 2016, a purported securities class action complaint (Xiang v. Inovalon Holdings, Inc., et al., No. 1:16-cv-04923) was filed in the United States District Court for the Southern District of New York against the Company, certain officers, directors and underwriters in the Company's initial public offering. The complaint is brought on behalf of a purported class consisting of all persons or entities who purchased shares of the Company's Class A common stock pursuant or traceable to the Registration Statement issued in connection with the Company's initial public offering on February 18, 2015. The complaint asserts violations of Sections 11 and 15 of the Securities Act based on allegedly false or misleading statements and omissions with respect to, among other things, the Company's revenues from sales in the city and state of New York and the Company's effective tax rate. The complaint seeks certification as a class action and unspecified compensatory damages plus interest and attorneys' fees. On June 28, 2016, an identical complaint to the Xiang complaint (Patel v. Inovalon Holdings, Inc., et al., No. 1:16-cv-05065) was filed in the same court. On July 5, 2016, the court consolidated the Xiang and Patel actions. The Company believes that the claims against it and its officers and directors are without merit, and the Company and the named officers and directors intend to defend themselves vigorously. In light of, among other things, the early stage of the litigation, the Company is unable to predict the outcome of these consolidated actions and is unable to make a meaningful estimate of the amount or range of loss, if any, that could result from an unfavorable outcome. INSTITUTE OF BAKING: Court Grants Motion for Clarification ---------------------------------------------------------- In the case captioned, Rick Fitzer, individually and on behalf of others similarly situated, Plaintiff, v. American Institute of Baking et al, Defendants, Case No. CV 209-169 (S.D. Ga.), Chief District Judge Lisa Godbey Wood of the United States District Court for the Southern District of Georgia granted Defendant's Motion to Dismiss, Dismissed Plaintiff's Claims Against AIB and AIBI, and denied in part and dismissed in part as premature, Hatfield's Motion Regarding the PCA Settlement Procedures. Plaintiff Rick Fitzer is a resident of Chatham County, Georgia, allegedly got salmonella poisoning after ingesting food products containing peanut butter supplied by Peanut Corporation of America (PCA). AIBI had contracted to inspect PCA's food-production plants, and Hatfield, an AIBI employee, conducted the audit of the PCA facility in Blakely, Georgia, that is alleged to have produced the contaminated peanut butter. On September 2, 2009, Plaintiff, individually and on behalf of a putative class of similarly situated persons, filed suit against AIBI and Hatfield and AIBI's affiliate, alleging that they negligently performed the inspection or audit at the PCA facility. AIB moves the Court to dismiss Plaintiff's claims for lack of personal jurisdiction pursuant to Rule 12(b) (2). AIB contends that Plaintiff cannot satisfy Georgia's long-arm statute, as is required for the Court to exercise jurisdiction over the company, because he fails to show that AIB has established minimum contacts with this State. While conceding that its subsidiary, AIBI, does business in Georgia, AIB maintains that its ownership of AIBI alone is insufficient to confer jurisdiction over it, and that the separate and independent nature of the companies precludes imputing AIBI's contacts with this State to AIB. Even if jurisdiction were appropriate under the Georgia long-arm statute, AIB asserts, exercising jurisdiction over it would fail to comply with constitutional due-process guarantees. Plaintiff opposes AIBI and Hatfield's Motion in its entirety. He emphasizes that the movants do not, and cannot, cite to any case law supporting the proposition that a claimant waives his rights or fails to mitigate his damages by suing one joint tortfeasor over another. Plaintiff asserts that a ruling on class certification would be premature at this time, and that, in any event, his decision not to participate in the PCA settlement procedures is characteristic of the majority of the proposed class members. In her Order dated August 9, 2016 available at https://is.gd/iiPBAg from Leagle.com, Judge Wood concluded that AIB's Motion to Dismiss is granted because AIB has submitted a sworn declaration explicitly denying or refuting each of Plaintiff has neglected to include a single affidavit or sworn declaration in support of his position. The Court dismissed Plaintiff's claims against AIB for lack of personal jurisdiction. The Court denied in part and dismissed in part AIBI and Hatfield's Motion Regarding PCA Settlement Procedures for purposes that the defendants do not challenge the legal sufficiency of Plaintiff's claims for relief set forth in the Complaint. The court found that while the bankruptcy court documents are subject to judicial notice at this stage, the evidence does not support a dismissal of Plaintiff's claims against AIBI and Hatfield. It is dismissed in part as AIBI and Hatfield filed remained pending their motion was premature. Rick Fitzer is represented by Mark A. Tate, Esq. -- marktate@tatelawgroup.com -- TATE LAW GROUP, LLC American Institute of Baking et al Defendants is represented by Derek T. Teeter, Esq. -- derek.teeter@huschblackwell.com -- Kirsten A. Byrd, Esq. -- kirsten.byrd@huschblackwell.com -- Michael T. Crabb, Esq. -- mcrabb@ktklattorneys.com -- Stephen J. Torline, Esq. -- storline@ktklattorneys.com -- HUSCH, BLACKWELL & SANDERS, LLP -- Mason White, Esq. -- attys@bhrlegal.com -- BRENNAN, HARRIS & ROMINGER, LLP JOAL RESTAURANT: Minimum Wages Recovery Sought in "Peters" Suit --------------------------------------------------------------- PRINCESS PETERS, individually and on behalf of others similarly situated v. JOAL RESTAURANT CORP. d/b/a KEY CLUB CABARET; ALLEN J. MABOWITZ; and any other related entities, Case No. 606234/2016 (N.Y. Sup. Ct., Nassau Cty., August 16, 2016), seeks to recover unpaid minimum wages, illegally retained tips, and improperly withheld wages owed to the Plaintiff and all similarly situated persons, who are presently or were formerly employed by the Defendants. The Defendants operate adult entertainment establishments in New York, including the facility operating under the name "JOAL RESTAURANT CORP.," and commonly known as "KEY CLUB CABARET" or "KEY CLUB" in Bronx, New York. The Defendants provide food and drinks to its customers at a price and are engaged in the "restaurant industry" and "hospitality industry." Mr. Mabowitz held himself out as the owner, operator, and manager of KEY CLUB. The Plaintiff is represented by: Laura R. Reznick, Esq. Jeffrey K. Brown, Esq. Michael A. Tompkins, Esq. LEEDS BROWN LAW, P.C. One Old Country Road, Suite 347 Carle Place, NY 11514 Telephone: (516) 873-9550 E-mail: lreznick@leedsbrownlaw.com jbrown@lmblaw.com mtompkins@lmblaw.com JOHNSON & JOHNSON: 2,900 DePuy ASR(TM) Claims Pending at July 3 --------------------------------------------------------------- Johnson & Johnson said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 4, 2016, for the quarterly period ended July 3, 2016, that as of July 3, in the U.S. there were approximately 2,900 plaintiffs with direct claims in pending lawsuits regarding injuries allegedly due to the DePuy ASR(TM) XL Acetabular System and DePuy ASR(TM) Hip Resurfacing System. Johnson & Johnson and certain of its subsidiaries are involved in numerous product liability claims and lawsuits involving multiple products. Claimants in these cases seek substantial compensatory and, where available, punitive damages. While the Company believes it has substantial defenses, it is not feasible to predict the ultimate outcome of litigation. The Company has established accruals for product liability claims and lawsuits in compliance with ASC 450-20 based on currently available information, which in some cases may be limited. The Company accrues an estimate of the legal defense costs needed to defend each matter when those costs are probable and can be reasonably estimated. For certain of these matters, the Company has accrued additional amounts such as estimated costs associated with settlements, damages and other losses. Product liability accruals can represent projected product liability for thousands of claims around the world, each in different litigation environments and with different fact patterns. Changes to the accruals may be required in the future as additional information becomes available. The most significant of these cases include the DePuy ASR(TM) XL Acetabular System and DePuy ASR(TM) Hip Resurfacing System, the PINNACLE(R) Acetabular Cup System, pelvic meshes, RISPERDAL(R), XARELTO(R) and JOHNSON'S(R) Baby Powder. As of July 3, 2016, in the U.S. there were approximately 2,900 plaintiffs with direct claims in pending lawsuits regarding injuries allegedly due to the DePuy ASR(TM) XL Acetabular System and DePuy ASR(TM) Hip Resurfacing System, 9,100 with respect to the PINNACLE(R) Acetabular Cup System, 50,100 with respect to pelvic meshes, 13,000 with respect to RISPERDAL(R), 13,900 with respect to XARELTO(R) and 1,700 with respect to JOHNSON'S(R) Baby Powder. In August 2010, DePuy Orthopaedics, Inc. (DePuy) announced a worldwide voluntary recall of its ASR(TM) XL Acetabular System and DePuy ASR(TM) Hip Resurfacing System used in hip replacement surgery. Claims for personal injury have been made against DePuy and Johnson & Johnson. The number of pending lawsuits is expected to fluctuate as certain lawsuits are settled or dismissed and additional lawsuits are filed. Cases filed in federal courts in the United States have been organized as a multi-district litigation in the United States District Court for the Northern District of Ohio. Litigation has also been filed in countries outside of the United States, primarily in the United Kingdom, Canada, Australia, Ireland, Germany and Italy. In November 2013, DePuy reached an agreement with a Court-appointed committee of lawyers representing ASR(TM) Hip System plaintiffs to establish a program to settle claims with eligible ASR Hip patients in the United States who had surgery to replace their ASR Hips, known as revision surgery, as of August 31, 2013. This settlement covered approximately 8,000 patients. In February 2015, DePuy reached an additional agreement, which effectively extends the existing settlement program to ASR Hip patients who had revision surgeries after August 31, 2013 and prior to February 1, 2015. This second agreement is estimated to cover approximately 1,800 additional patients. The estimated cost of these agreements is covered by existing accruals. This settlement program is expected to bring to a close significant ASR Hip litigation activity in the United States. However, many lawsuits in the United States will remain, and the settlement program does not address litigation outside of the United States. In Australia, a settlement has been reached with representatives of a class action lawsuit pending in the Federal Court of New South Wales that resolves the claims of the majority of ASR Hip patients in that country. The Company continues to receive information with respect to potential costs associated with this recall on a worldwide basis. The Company has established accruals for the costs associated with the DePuy ASR(TM) Hip program and related product liability litigation. Changes to these accruals may be required in the future as additional information becomes available. Claims for personal injury have also been made against DePuy and Johnson & Johnson relating to DePuy's PINNACLE(R) Acetabular Cup System used in hip replacement surgery. The number of pending product liability lawsuits continues to increase, and the Company continues to receive information with respect to potential costs and the anticipated number of cases. Cases filed in federal courts in the United States have been organized as a multi-district litigation in the United States District Court for the Northern District of Texas. Litigation has also been filed in countries outside of the United States, primarily in the United Kingdom. The Company has established an accrual for defense costs in connection with product liability litigation associated with DePuy's PINNACLE(R) Acetabular Cup System. Changes to this accrual may be required in the future as additional information becomes available. Claims for personal injury have been made against Ethicon, Inc. (Ethicon) and Johnson & Johnson arising out of Ethicon's pelvic mesh devices used to treat stress urinary incontinence and pelvic organ prolapse. The number of pending product liability lawsuits continues to increase, and the Company continues to receive information with respect to potential costs and the anticipated number of cases. Cases filed in federal courts in the United States have been organized as a multi-district litigation in the United States District Court for the Southern District of West Virginia. In addition, class actions and individual personal injury cases or claims have been commenced in countries outside of the United States, including Australia, Belgium, Canada, England, Israel, Italy, the Netherlands, Scotland and Venezuela, seeking damages for alleged injury resulting from Ethicon's pelvic mesh devices. The Company has established an accrual with respect to product liability litigation associated with Ethicon's pelvic mesh products. Changes to this accrual may be required in the future as additional information becomes available. Claims for personal injury have been made against Janssen Pharmaceuticals, Inc. and Johnson & Johnson arising out of the use of RISPERDAL(R), indicated for the treatment of schizophrenia, acute manic or mixed episodes associated with bipolar I disorder and irritability associated with autism, and related compounds. The number of pending product liability lawsuits continues to increase, and the Company continues to receive information with respect to potential costs and the anticipated number of cases. The Company has established an accrual with respect to product liability litigation associated with RISPERDAL(R). Changes to this accrual may be required in the future as additional information becomes available. Claims for personal injury have been made against Janssen Pharmaceuticals, Inc. and Johnson & Johnson arising out of the use of XARELTO(R), an oral anticoagulant. The number of pending product liability lawsuits continues to increase, and the Company continues to receive information with respect to potential costs and the anticipated number of cases. Cases filed in federal courts in the United States have been organized as a multi-district litigation in the United States District Court for the Eastern District of Louisiana. In addition, cases have been filed in state courts across the United States and many cases have been consolidated into a state mass tort litigation in Philadelphia, Pennsylvania. Class action lawsuits also have been filed in Canada. The Company has established an accrual for defense costs in connection with product liability litigation associated with XARELTO(R). Changes to this accrual may be required in the future as additional information becomes available. Claims for personal injury have been made against Johnson & Johnson Consumer Inc. and Johnson & Johnson arising out of the use of JOHNSON'S(R) Baby Powder. The number of pending product liability lawsuits continues to increase, and the Company continues to receive information with respect to potential costs and the anticipated number of cases. Lawsuits have been primarily filed in state courts in Missouri and New Jersey. The Company has established an accrual for defense costs in connection with product liability litigation associated with JOHNSON'S(R) Baby Powder. Changes to this accrual may be required in the future as additional information becomes available. JOHNSON & JOHNSON: 2 Baby Powder Class Suits Pending in Illinois ---------------------------------------------------------------- Johnson & Johnson said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 4, 2016, for the quarterly period ended July 3, 2016, that two purported class actions were filed in May 2014 against Johnson & Johnson and Johnson & Johnson Consumer Companies, Inc. (now Johnson & Johnson Consumer Inc.) alleging violations of state consumer fraud statutes based on nondisclosure of alleged health risks associated with talc contained in JOHNSON'S(R) Baby Powder and JOHNSON'S(R) Shower to Shower (a product no longer sold by Johnson & Johnson). The cases are pending in United States District Court for the Eastern District of California and United States District Court for the Southern District of Illinois. Both cases seek injunctive relief and monetary damages. Neither case includes a claim for personal injuries. No further updates were provided in the Company's SEC report. JOHNSON & JOHNSON: Must Defend Against Contact Lens Case -------------------------------------------------------- Johnson & Johnson said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 4, 2016, for the quarterly period ended July 3, 2016, that over 30 putative class action complaints were filed in March and April 2015 by contact lens patients in a number of courts around the United States against Johnson & Johnson Vision Care, Inc. (JJVCI), other contact lens manufacturers, distributors, and retailers, alleging vertical and horizontal conspiracies to fix the retail prices of contact lenses. The complaints allege that the manufacturers reached agreements with each other and certain distributors and retailers concerning the prices at which some contact lenses could be sold to consumers. The plaintiffs are seeking damages and injunctive relief. All of the class action cases were transferred to the United States District Court for the Middle District of Florida in June 2015. The plaintiffs filed a Consolidated Class Action complaint in November 2015, and in December 2015, JJVCI and other defendants filed motions to dismiss. In June 2016, the Court denied the motions to dismiss. No further updates were provided in the Company's SEC report. JOHNSON & JOHNSON: Class Action Over XARELTO(R) Pending ------------------------------------------------------- Johnson & Johnson said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 4, 2016, for the quarterly period ended July 3, 2016, that two third-party payors filed in August 2015 a purported class action in the United States District Court for the Eastern District of Louisiana against Janssen Research & Development, LLC, Janssen Ortho LLC, Janssen Pharmaceuticals, Inc., Ortho-McNeil-Janssen Pharmaceuticals, Inc. and Johnson & Johnson (as well as certain Bayer entities), alleging that the defendants improperly marketed and promoted XARELTO(R) as safer and more effective than less expensive alternative medications while failing to fully disclose its risks. The complaint seeks damages in an unspecified amount. No further updates were provided in the Company's SEC report. KERYX BIOPHARMACEUTICALS: Defending 2 Class Suits in New York ------------------------------------------------------------- Keryx Biopharmaceuticals, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 5, 2016, for the quarterly period ended June 30, 2016, that the Company is defending two class action lawsuits in New York. The Company said, "Two purported class action lawsuits have been filed against us and certain of our officers in the United States District Court for the Southern District of New York, one captioned Terrell Jackson v. Keryx Biopharmaceuticals, Inc., et al., No. 1:16-cv-06131 filed on August 2, 2016, and the other captioned Richard J. Erickson v. Keryx Biopharmaceuticals, Inc., et al. No. 1:16-cv-06218, filed on August 4, 2016. The Jackson complaint purports to be brought on behalf of stockholders who purchased our common stock between February 25, 2016 and August 1, 2016 and the Erickson complaint purports to be brought on behalf of stockholders who purchased our common stock between March 2, 2016 and July 29, 2016." "Each complaint generally alleges that we and certain of our officers violated Sections 10(b) and/or 20(a) of the Exchange Act and Rule 10b-5 promulgated thereunder by making allegedly false and/or misleading statements concerning the Company and its business operations and future prospects in light of the August 1, 2016 announcement of an imminent interruption in our supply of Auryxia. Each complaint seeks unspecified damages, interest, attorneys' fees, and other costs. "We deny any allegations of wrongdoing and intend to vigorously defend against these lawsuits. There is no assurance, however, that we or the other defendants will be successful in our defense of either of these lawsuits or that insurance will be available or adequate to fund any settlement or judgment or the litigation costs of these actions. Moreover, we are unable to predict the outcome or reasonably estimate a range of possible losses at this time. A resolution of either of these lawsuits adverse to us or the other defendants, however, could have a material effect on our consolidated financial position and results of operations in the period in which the particular lawsuit is resolved." Keryx Biopharmaceuticals is a biopharmaceutical company focused on bringing innovative medicines to people with renal disease. KING COUNTY, WA: Faces Class Action Over $10 Jury Duty Pay ---------------------------------------------------------- Steve Miletich, writing for Seattle Times, reports that a lawsuit was filed against King County on Aug. 8 alleging its $10-per-day expense payment to jurors leads to the disproportional exclusion of the poor and minorities excused for economic hardship because their employers don't compensate them for jury duty. The suit, brought by three plaintiffs but which seeks class-action status for other affected people, was filed in Pierce County Superior Court to avoid a conflict of interest in King County's courts, said Toby Marshall, one of the attorneys who filed the complaint. The suit says King County's $10 daily payment for mileage or travel costs hasn't changed since 1959, and that jurors who hear cases in Superior and District courts without being compensated by their employers are entitled to be paid at "no less than the applicable minimum wage rate." The suit seeks preliminary and injunctive relief, requiring King County to pay a minimum hourly wage to people who perform jury service and aren't compensated by their employer. It also seeks unspecified monetary damages for one plaintiff, Catherine Selin, and others who served without compensation from their employers. Susan Craighead, presiding judge of the King County Superior Court, said on Aug. 8 she couldn't comment on the merits of the suit. But she noted the $10 sum paid by the county is specified under state law and is the same as in other counties. That per-day amount is the minimum under state law, which says jurors may receive up to $25 but no less than $10. At present, juries tend to be composed of people with moderate or high incomes -- often who work for Amazon, Microsoft and Boeing -- who might not understand the backgrounds of many criminal defendants and civil litigants who have their "fates decided by people who don't look like them," Mr. Marshall said. In particular, minorities and the poor represent a disproportionate number of those who come before King County's courts in criminal cases, he said. The current pay model means the poor and people of color, who face disproportional issues of income inequality and financial instability, are kept from participating in a vital democratic function, according to the suit. "Juries should be drawn from a fair cross-section of the community," Marshall said in a prepared statement. "A jury system that excludes certain segments of society is unfair and undemocratic." Or as in the case of Ms. Selin, who last year performed 11 days of jury service without compensation by her employer, jurors aren't paid the minimum wage they should receive, the suit says Jeffrey Needle, another attorney representing the plaintiffs, said in the statement that jurors shouldn't be treated any differently than citizens who don't have to give up their incomes to vote. The two other plaintiffs, Ryan Rocha, who is black, and Nicole Bednarczyk -- both of whom are of low economic status and work for employers who wouldn't compensate them -- would be forced to request financial-hardship exemptions if summoned for jury duty, despite their desire to participate, according to the suit. Ms. Bednarczyk previously has been excused for that reason, the suit says. In the suit and their statement, the attorneys note a state commission created in 1999, which included judges, prosecutors, defense attorneys, court administrators and legislators from throughout Washington, recommended after a year of study that special efforts should be made to increase jury participation by sectors of society that traditionally haven't fully participated, particularly young people and minority communities. The commission gave the "highest priority" to increasing compensation for jurors, deeming it "unacceptable that this state's citizens are required to perform one of the most important civic duties at a rate that does not remotely approach minimum wage," according to the statement. KORONA PAINTING: "Fillipas" Suit Seeks Overtime Pay --------------------------------------------------- Grigorios Fillipas, on behalf of himself and others similarly situated, Plaintiff, v. Korona Painting Corp., JMK Painting LLC, George Kourpas and Dimitrios Kourpas, in their individual and professional capacity, Defendants, Case No. 1:16-cv-04445 (E.D. N.Y., August 9, 2016), seeks unpaid overtime pay, liquidated damages, civil penalties, statutory damages, permanent injunction, prejudgment interest and post-judgment interests, attorney's fees, costs and such other relief pursuant to the Fair Labor Standards Act and New York Labor Law. Plaintiff was employed by Korona Painting Corp., JMK Painting LLC, George Kourpas and Dimitrios Kourpas as a construction worker. Plaintiff is represented by: Ariadne Panagopoulou, Esq. PARDALIS & NOHAVICKA, LLP 3510 Broadway, Suite 201 Astoria, NY 11106 Telephone: (718) 777-0400 Facsimile: (718) 777-0599 LADENBURG THALMANN: Court Denied Underwriters' Motion to Dismiss ---------------------------------------------------------------- Ladenburg Thalmann Financial Services Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 5, 2016, for the quarterly period ended June 30, 2016, that the court has denied the underwriters' motions to dismiss a class action lawsuit related to American Realty Capital Partners, Inc. In December 2014 and January 2015, two purported class action suits were filed in the U.S. District Court for the Southern District of New York against American Realty Capital Partners, Inc. ("ARCP"), certain affiliated entities and individuals, ARCP's auditing firm, and the underwriters of ARCP's May 2014 $1,656,000 common stock offering ("May 2014 Offering") and three prior note offerings. The complaints have been consolidated. Ladenburg was named as a defendant as one of 17 underwriters of the May 2014 Offering and as one of eight underwriters of ARCP's July 2013 offering of $300,000 in convertible notes. The complaint alleges, among other things, that the offering materials were misleading based on financial reporting of expenses, improperly-calculated AFFO (adjusted funds from operations), and false and misleading Sarbanes-Oxley certifications, including statements as to ARCP's internal controls, and that the underwriters are liable for violations of federal securities laws. The plaintiffs seek an unspecified amount of compensatory damages, as well as other relief. In June 2016, the court denied the underwriters' motions to dismiss the complaint. The Company believes the claims against Ladenburg are without merit and intends to vigorously defend against them. LEGGETT & PLATT: Petition for Rehearing Pending ----------------------------------------------- Leggett & Platt, Incorporated said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 4, 2016, for the quarterly period ended June 30, 2016, that one of the two objectors to a class action settlement has filed a petition for rehearing en banc (requesting that all judges rather than the normal 3 rule on the appeal) remains pending. Circuit dismissed the remaining two appeals, 1 for failure to post an appeal bond, and the other because it was untimely filed. One of the two objectors filed a petition for rehearing en banc (requesting that all judges rather than the normal 3 rule on the appeal) on June 29, 2016, which remains pending." U.S. Indirect Purchaser Class Action Cases The Company said, "We were named as a defendant in an indirect purchaser class consolidated amended complaint filed on March 21, 2011 and were subsequently sued in an indirect purchaser class action case filed on May 23, 2011, in the U.S. District Court for the Northern District of Ohio under the name In re: Polyurethane Foam Antitrust Litigation, Case No. 1:10-MD-2196. The plaintiffs, on behalf of themselves and/or a class of indirect purchasers, brought damages claims under various states' antitrust and consumer protection statutes, and were seeking three times an amount of damages allegedly suffered as a result of alleged overcharges in the price of polyurethane foam products from at least 1999 to the present. Each plaintiff also sought attorney fees, pre-judgment and post-judgment interest, court costs, and injunctive relief against future violations. We denied all allegations. The Ohio Court ordered all parties to attend non- binding mediation with a mediator of their choosing." Settlement of U.S. Indirect Purchaser Cases "We reached a tentative settlement in the U.S. Indirect Class Action cases on May 18, 2015, by agreeing to pay an amount not materially different from the amount previously accrued for this claim. We continue to deny all allegations in the cases, but settled the indirect purchaser class cases to avoid the risk, uncertainty, expense and distraction of litigation. The Court preliminarily approved the class settlement on July 31, 2015. The full settlement amount was paid into escrow in the third quarter of 2015. The final settlement approval hearing was held on December 15, 2015 and the Court granted final approval of the settlement. Several objectors filed notices of appeal of the order of approving the class settlement to the Sixth Circuit Court of Appeals. On April 14, 2016, the Court ordered the objectors to post an appeal bond by May 13, 2016. Certain of the objectors filed a motion to reconsider or stay the bond order, which the Court denied on May 12, 2016. Subsequently, three of the five objectors voluntarily dismissed their appeals. On June 20, 2016, the Sixth Circuit dismissed the remaining two appeals, 1 for failure to post an appeal bond, and the other because it was untimely filed. One of the two objectors filed a petition for rehearing en banc (requesting that all judges rather than the normal 3 rule on the appeal) on June 29, 2016, which remains pending." LIFEWAY FOODS: Loses Bid to Strike Class Allegations in "Figy" -------------------------------------------------------------- District Judge Thelton E. Henderson of the United States District Court for the Northern District of California denied Defendant's motions to dismiss and strike, and granted Defendant's request for judicial notice in the case captioned, ROBERT E. FIGY, Plaintiff, v. LIFEWAY FOODS, INC., Defendant, Case No. 13-cv-04828-TEH (N.D. Cal.) Defendant is a producer of retail probiotic dairy beverages and products similar to yogurt. Plaintiff is a self-proclaimed "health conscious consumer who wishes to avoid 'added sugars' in the food products he purchases." Plaintiff purchased five such products between October 17, 2009 and the present (the Class Period). Specifically, Plaintiff purchased Defendant's Organic Lowfat Peach Kefir, Organic Lowfat Pomegranate/Acai Kefir, Organic Lowfat Raspberry Kefir, Nonfat Strawberry Kefir, and Nonfat Raspberry Kefir (the Purchased Products). Plaintiff brings the putative class action on behalf of either a nationwide class or a statewide class of California consumers who, since October 17, 2009, purchased any product produced by Defendant and labeled with the ingredient "Evaporated Cane Juice" (ECJ). On the basis of these allegations, Plaintiff originally filed suit in the Court on October 17, 2013, and filed the First Amended Complaint on December 20, 2013. In the FAC, Plaintiff asserts 13 causes of action: separate claims for violation of the unlawful, unfair, and fraudulent prongs of the California Unfair Competition Law, Cal. Bus. & Prof. Code Sec. 17200 et seq. (UCL) (first through third causes of action); separate claims for violation of the misleading and untrue prongs of the California False Advertising Law, Cal. Bus. & Prof. Code Sec. 17500 et seq.(FAL) (fourth and fifth causes of action); a claim for violation of the California Consumer Legal Remedies Act, Cal. Civ. Code Sec. 1750 et seq. (CLRA) (sixth cause of action); common law claims for Breach of Express Warranty, Breach of Implied Warranty of Merchantability, Negligent Misrepresentation, Negligence, Unjust Enrichment, and Money Had and Received (seventh through twelfth causes of action); and a claim for Declaratory Judgment (fourteenth cause of action). In his Order dated August 16, 2016 available at https://is.gd/fkXOBk from Leagle.com, Judge Henderson held that Plaintiff has undoubtedly alleged a purchase within the Class Period, and no clarification on the point is necessary and that Defendant's motion to strike Plaintiff's nationwide class allegations is premature. The Court granted the request for judicial notice of a document because Defendant's incorporation in Illinois is therefore "not subject to reasonable dispute. Robert E. Figy is represented by Ben F. Pierce Gore, Esq. -- pgore@prattattorneys.com -- PRATT & ASSOCIATES Figy is also represented by: D'Juana Parks, Esq. John Keith Hyde, Esq. PROVOST UMPHREY LAW FIRM 490 Park Street, P.O. Box 4905 Beaumont, TX 77701 Tel: (409)203-5030 Lifeway Foods, Inc. is represented by Richard Norman Kessler, Esq. -- rkessler@mcdonaldhopkins.com -- and -- Joseph John Jacobi, Esq. -- jjacobi@mcdonaldhopkins.com -- MCDONALD HOPKINS LLC -- Joren Surya Ayala-Bass, Esq. -- joren@leiderlegal.com -- and -- Philip A. Leider, Esq. -- philip@leiderlegal.com -- THE LAW OFFICE OF PHILIP A. LEIDER LIGAND PHARMACEUTICALS: Class Action Appeal Remains Pending ----------------------------------------------------------- Ligand Pharmaceuticals Incorporated said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 4, 2016, for the quarterly period ended June 30, 2016, that an appeal in the securities litigation remains pending. In 2012, a federal securities class action and shareholder derivative lawsuit was filed in Pennsylvania alleging that the Company and its CEO assisted various breaches of fiduciary duties based on the Company's purchase of a licensing interest in a development-stage pharmaceutical program from the Genaera Liquidating Trust in 2010 and the Company's subsequent sale of half of its interest in the transaction to Biotechnology Value Fund, Inc. Plaintiff filed a second amended complaint in February 2015, which the Company moved to dismiss in March 2015. The district court granted the motion to dismiss on November 11, 2015. The plaintiff has appealed that ruling to the Third Circuit. The Company intends to continue to vigorously defend against the claims against the Company and its CEO. The outcome of the matter is not presently determinable. LINCOLN NATIONAL: Defending "Glover" Class Suit ----------------------------------------------- Lincoln National Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 4, 2016, for the quarterly period ended June 30, 2016, that the Company continues to defend the case, Glover v. Connecticut General Life Insurance Company and The Lincoln National Life Insurance Company, filed in the U.S. District Court for the District of Connecticut, No. 3:16cv00827. It is a putative class action that was served on The Lincoln National Life Insurance Company ("LNL") on June 8, 2016. Plaintiff is the owner of a universal life insurance policy who alleges that LNL charged more for cost of insurance than permitted by the policy. Plaintiff seeks to represent all universal life and variable universal life policyholders who owned policies containing cost of insurance provisions that are similar to those of Plaintiff's policy, and seeks damages on behalf of all such policyholders. "We are vigorously defending this matter," the Company said. LIONS GATE: Six Investors Suits Filed Over Starz Deal ----------------------------------------------------- Lions Gate Entertainment Corp. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 4, 2016, for the quarterly period ended June 30, 2016, that between July 19, 2016 and July 29, 2016, six putative class action complaints were filed by purported Starz stockholders in the Court of Chancery of the State of Delaware: Freedman v. Malone, et al., C.A. No. 12571- VCG; Oklahoma Police Pension & Retirement System v. Malone, et al., C.A. No. 12584- VCG; The Firemen's Retirement System of St. Louis v. Malone, et al., C.A. No. 12596-VCG; City of Cambridge Retirement System v. Malone, et al., C.A. No. 12598-VCG; and Norfolk County Retirement System v. Malone, et al., C.A. No. 12599-VCG; and City of Providence v. Starz, et al., C.A. No. 12604. The complaints name as defendants the members of the board of directors of Starz, Dr. John C. Malone and Robert R. Bennett, as well as Lionsgate and Orion Arm Acquisition Inc., a wholly owned subsidiary of Lionsgate. Some of the complaints also name as defendants Starz, Leslie Malone, The Tracey L. Neal Trust A, The Evan D. Malone Trust A, Deborah J. Bennett, Hilltop Investments, LLC ("Hilltop"), Dr. Rachesky and LionTree Advisors LLC ("LionTree"). The complaints allege, among other things, that the members of the Starz board of directors breached fiduciary duties owed to Starz and the holders of Starz Series A common stock in connection with the merger and the transactions contemplated by the Merger Agreement, dated as of June 30, 2016 by and among Lionsgate, Starz and Merger Sub, pursuant to which Merger Sub will merge with and into Starz (the "Merger"); that Dr. Malone (and, in one action, Mr. Bennett) is a controlling stockholder who breached fiduciary duties owed to other Starz stockholders in connection with the Merger (and, in certain of the actions, by entering into that certain Exchange Agreement dated as of June 30, 2016); and that some or all of Starz, Lions Gate, Merger Sub, The Tracey L. Neal Trust A, The Evan D. Malone Trust A, Deborah J. Bennett, Hilltop, and LionTree aided and abetted such breaches of fiduciary duty. Some or all of the complaints seek, among other relief, rescission of the proposed Merger, an injunction to prevent the Merger from proceeding, a judgment declaring the Exchange Agreement is invalid and void, damages, and/or attorneys' fees. Defendants believe that the complaints are without merit and intends to defend the actions vigorously. On June 30, 2016, Lionsgate and Starz entered into an Agreement and Plan of Merger (the "Merger Agreement") under which Lionsgate will acquire Starz for a combination of cash and common stock totaling approximately $4.4 billion enterprise value (the "Starz Transaction"). LUCKY RESTAURANT: Oster Seeks Unpaid Minimum Wages Under FLSA ------------------------------------------------------------- JOSEPH OSTER, on his own behalf and on behalf of all similarly situated individuals, the Plaintiff, v. LUCKY RESTAURANT MANAGEMENT LLC d/b/a LUCKY DILL DELI, a Florida Limited Liability Company, and KIMBERLY MITOW, individually, the Defendants, Case No. 8:16-cv-02352-VMC-MAP (M.D. Fla., Aug. 17, 2016), seeks to recover unpaid minimum wages, liquidated damages, and reasonable Attorneys' fees and costs, pursuant to the Fair Labor Standards Act (FLSA). The Defendants took an unlawful "tip credit" from Plaintiff and those similarly situated to Plaintiff by taking unlawful deductions from tips, requiring tipped employees to share tips with non-tipped employees and paying the tip minimum wage for non- tip work. Lucky is a restaurant establishment located in Palm Harbor, Pinellas County, Florida. The Plaintiff is represented by: Marc R. Edelman, Esq. MORGAN & MORGAN 201 N. Franklin Street, No. 700 Tampa, FL 33602 Telephone: (813) 223 5505 Facsimile: (813) 257 0572 E-mail: MEdelman@forthepeople.com LYFT INC: Refuses to Comply With Statutes, Southern Transpo Says ---------------------------------------------------------------- SOUTHERN TRANSPORTATION, INC., v. LYFT, INC., UBER TECHNOLOGIES, INC., AND RASIER, LLC, Case No. 2:16-cv-02669-JPM-dkv (W.D. Tenn., August 16, 2016), alleges that the Defendants and their drivers have failed and refused to comply with statutes and ordinances set by the state of Tennessee, and have operated illegally in defiance of these statutes and ordinances. Southern Transportation alleges that, among other laws, the Defendants violated: * Tennessee Code Annotated 6-54-128. Criminal records of vehicle operators transporting the public -- Costs of investigation; * Tennessee Code Annotated 7-51-1003. Scope of authority; and * Tennessee Code Annotated 7-51-1007. Regulation of entry into the business of providing passenger transportation service. Plaintiff Southern Transportation, Inc., is a Tennessee corporation with offices located in Memphis, Tennessee. Lyft, Inc., is a Delaware corporation, with a principal place of business in San Francisco, California. Uber Technologies, Inc., is a Delaware corporation, headquartered in San Francisco. Rasier, LLC, is a Delaware corporation headquartered in San Francisco. The Defendants began providing passenger transportation services in Memphis and the surrounding area in April 2014. The Defendants, either directly or through related entities, operate transportation network companies that enter into contracts or business relationships with drivers to provide passenger transportation services. They use digital networks to connect riders to drivers, who provide prearranged rides. The Plaintiff is represented by: Nicholas E. Bragorgos, Esq. Paul Berry Cooper III, Esq. MCNABB, BRAGORGOS & BURGESS, PLLC 81 Monroe, Sixth Floor Memphis, TN 38103 Telephone: (901) 624-0640 Facsimile: (901) 624-0650 E-mail: nbragorgos@mbb-law.com bcooper@mbb-law.com MAC'S CHILDREN: "Rodriguez" Suit Seeks Overtime, Minimum Pay ------------------------------------------------------------ Nurla Rodriguez, on behalf of herself and all others similarly situated, and on behalf of the general public, Plaintiff, v. Mac's Children and Family Services, a California corporation and Does 1 through 10, inclusive, Defendants, Case No. 16CIV00845, (Cal. Super., August 9, 2016), seeks compensation for all unpaid wages, including minimum, regular, and overtime, wages, penalties, injunctive and other equitable relief, and reasonable attorneys' fees and costs under the California Labor Code. Rodriguez was employed by Defendants in their San Mateo County location. She claims to be denied meal and rest breaks, denied accurately itemized wage statements and denied the timely payment of all wages due upon separation of employment. Plaintiffs are represented by: Kenneth S. Gaines, Esq. Daniel F. Gaines, Esq. Alex P. Katofsky, Esq. Evan S. Gaines, Esq. GAINES & GAINES, APLC 27200 Agoura Road, Suite 101 Calabasas, CA 91301 Tel: (818) 703-8985 Fax: (818) 703-8984 Email: ken@gaineslawfirm.com daniel@gaineslawfirm.com alex@gaineslawfirm.com evan@gaineslawfirm.com MARVELL TECHNOLOGY: Saratoga Advantage Trust's Suit Dismissed ------------------------------------------------------------- District Judge Ronald M. Whyte of the United States District Court for the Northern District of California granted Marvell Technology Group, Ltd.'s motion to dismiss with leave to amend in the case captioned, SARATOGA ADVANTAGE TRUST TECHNOLOGY & COMMUNICATIONS PORTFOLIO, Plaintiff, v. MARVELL TECHNOLOGY GROUP, LTD., et al., Defendants, Case No. 15-CV-04881-RMW (N.D. Cal.). Saratoga Advantage Trust Technology & Communications Portfolio filed a purported shareholder derivative suit against Marvell Technology Group, Ltd. and certain current and former Marvell directors and officers. Defendant Marvell is a publicly traded semiconductor company incorporated in Bermuda. Marvell's operating subsidiary in the United States is based in Santa Clara, California. Plaintiff, an institutional investor based in Arizona, has held Marvell common stock since May 30, 2014. Plaintiff asserts four causes of action against the individual defendants: breach of fiduciary duties, unjust enrichment, corporate waste, and aiding and abetting fiduciary violations. Plaintiff alleges that between November 20, 2014 and September 11, 2015, Marvell and the individual defendants "either made, caused to be made, and/or failed to correct statements previously made while failing to disclose material information concerning Marvell's business operations, prospects, internal controls and financial results, thus causing the Company's stock to trade at artificially inflated prices." In the motion, Marvell argues that plaintiff lacks standing to bring the action because the internal affairs doctrine requires the application of Bermuda law to plaintiff's claims, and Bermuda law does not permit shareholder derivative suits. Plaintiff argues that the "internal affairs" doctrine does not apply to derivative actions alleging securities fraud, and that, even under Bermuda law, plaintiff has properly stated a derivative claim. In his Order dated August 16, 2016 available at https://is.gd/XKYG4l from Leagle.com, Judge Whyte held Plaintiff's allegations are insufficient to show misuse of control for personal benefit by the individual defendants and that Plaintiff fails to state a claim because it has not established a prima facie case for any of the Foss exceptions. Saratoga Advantage Trust Technology & Communications Portfolio is represented by Mark L. Knutson, Esq. -- mark@consumersadvocates.com -- and William Richard Restis, Esq. -- wrr@classactionlaw.com -- FINKELSTIEN & KRINSK LLP Marvell Technology Group, Ltd. is represented by Harry Arthur Olivar, Jr., Esq. -- harryolivar@quinnemanuel.com -- Jason Frank Lake, Esq. -- jasonlake@quinnemanuel.com -- and Valerie Suzanne Roddy, Esq. -- valerieroddy@quinnemanuel.com -- QUINN EMANUEL URQUHART AND SULLIVAN, LLP MASTEC INC: Seeks to Dismiss "Wrigley" Amended Complaint -------------------------------------------------------- MasTec, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 4, 2016, for the quarterly period ended June 30, 2016, that the Company has filed a motion to dismiss the amended complaint in the case, Wrigley v. MasTec, Inc., and the District Court has scheduled a two-week trial period beginning in March 2017 pending its ruling on the Company's motion to dismiss. In May 2015, a putative class action lawsuit (the "Lawsuit"), Wrigley v. MasTec, Inc., et al. (Case No. 1:15-cv-21740) was filed in the United States District Court, Southern District of Florida, naming the Company, the Company's Chief Executive Officer, Jose R. Mas, and the Company's Chief Financial Officer, George L. Pita, as defendants. In August 2015, co-lead plaintiffs were appointed, and an amended complaint was filed in October 2015. The Lawsuit has been purportedly brought by a shareholder, both individually and on behalf of a putative class of shareholders, alleging violations of the federal securities laws arising from alleged false or misleading statements contained in, or alleged material omissions from, certain of the Company's filings with the Securities and Exchange Commission (the "SEC") and other statements, in each case with respect to accounting matters that are the subject of the Audit Committee's independent internal investigation. The amended complaint seeks damages stemming from losses Plaintiffs claim to have suffered as a result of purchasing Company securities at an allegedly inflated market price. The Company has filed a motion to dismiss the amended complaint and the District Court has scheduled a two-week trial period beginning in March 2017 pending its ruling on the Company's motion to dismiss. The Company believes that the Lawsuit is without merit and intends to vigorously defend against it; however, there can be no assurance that the Company will be successful in its defense. MasTec is a infrastructure construction company operating mainly throughout North America across a range of industries. MATHESON TRI-GAS: Van Kempen Accord Denied for Insufficient Info ---------------------------------------------------------------- District Judge Haywood S. Gilliam, Jr. of the United States District Court for the Northern District of California denied Plaintiffs' motion for preliminary approval of collective and class action settlement in the case captioned, ROY VAN KEMPEN, Plaintiff, v. MATHESON TRI-GAS, INC., Defendant, Case No. 15-CV- 00660-HSG (N.D. Cal.). Defendant Matheson Tri-Gas, Inc. (Defendant) employed Plaintiff Roy Van Kempen as an hourly, non-exempt delivery driver of industrial and medical gases. In his operative complaint, Plaintiff alleges that Defendant intentionally failed to include the non-discretionary bonuses he received in calculating his rate of overtime pay. On that basis, Plaintiff claims that Defendant systematically underpaid his overtime wages in violation of Sec. 207(a)(1) of the FLSA and California Labor Code Sec. 510. Plaintiff further alleges that Defendant had a "use-it-or-lose it" vacation time policy by which accrued vacation time was automatically forfeited if not used within a specified time period. Plaintiff claims that this vacation-time policy violated California Labor Code Sec. 227.3. These claims are asserted in both Plaintiff's individual capacity and on behalf of all other persons similarly situated. Defendant removed the action from state court under federal question, diversity, and Class Action Fairness Act jurisdiction. In the Court, Plaintiff amended his initial complaint to add new state law claims and propounded formal and informal written discovery on Defendant. The parties then participated in a private mediation before a retired state court judge, and the case settled. Defendant agreed to pay a gross total of $370,000 less the requested $103,000 in attorneys' fees and $15,000 in litigation costs, a $5,000 incentive award for Plaintiff, settlement administration costs not anticipated to exceed $25,000, and 75% of the $5,000 penalty under the Private Attorneys General Act. In the motion, Plaintiff moves for preliminary approval of a collective and class action settlement. In his Order dated August 1, 2016 available at https://is.gd/mrvoaT from Leagle.com, Judge Gilliam, Jr. found that the nationwide FLSA class and the California vacation class settlements fall within the acceptable range of approval, but there is insufficient information to make the same determination about the California overtime class. The FLSA putative class members are not properly directed to give their consent in writing and have it filed with the Court in order to join the class. The parties provide no support for their assertion that having class members sign, then cash, checks with purported opt-in language printed on the back, complies with the plain-language requirements of Sec. 216(b). The parties may correct the deficiencies and refile their approval motion for expedited consideration. Roy Van Kempen is represented by S. Brett Sutton, Esq. -- brett@suttonhague.com -- and Jared Hague, Esq. -- jared@suttonhague.com -- SUTTON HAGUE LAW CORPORATION Matheson Tri-Gas, Inc. is represented by Clinton Davis Robison, Esq. -- clint.robison@leclairryan.com -- and Vickie V. Grasu, Esq. -- vickie.grasu@leclairryan.com -- LECLAIR RYAN LLP MCDONALDS CORP: Summary Judgment Bid in "Salazar" Granted in Part ----------------------------------------------------------------- District Judge Richard Seeborg of the United States District Court for the Northern District of California granted in part McDonald Corp.'s summary judgment motion in the case captioned, GUADALUPE SALAZAR, et al., Plaintiffs, v. McDONALD'S CORP., et al., Defendants, Civil No. 14-CV-02096-RS (N.D. Cal.) In 2010, defendants McDonald's Corporation and McDonald's USA, LLC (McDonalds) entered into a franchise agreement with the Bobby O. Haynes Sr. and Carol R. Haynes Family Limited Partnership (Haynes). The agreement allocated control of the franchised restaurants along a fine contractual line, with McDonalds setting general operational standards and Haynes in charge of personnel. Plaintiffs Guadalupe Salazar, Judith Zarate, and Genoveva Lopez are crew members at Haynes-owned McDonalds franchise restaurants in Oakland, California. In the putative class action, they seek to recover wages allegedly owed to them by Haynes and by McDonalds as franchisor. They aver, among other things, managers edit or delete time recorded by the punch-in and punch-out system, require off- the-clock work, and fail to pay meal period, rest period, and mandated overtime compensation. Plaintiffs specifically assert various claims under the California Labor Code as well as for negligence, violation of the Private Attorneys General Act (PAGA), Labor Code Sections 2698 et seq., and violation of California's Unfair Competition Law (UCL). McDonalds moves for summary judgment on the grounds it does not jointly employ the named plaintiffs, given it does not retain or exert direct or indirect control over their hiring, firing, wages, or working conditions. In his Order dated August 16, 2016 available at https://is.gd/MlReyt from Leagle.com, Judge Seeborg found that McDonalds did not retain or exert direct or indirect control over plaintiffs' hiring, firing, wages, hours, or material working conditions. Nor did McDonalds suffer or permit plaintiffs to work, engage in an actual agency relationship, participate in a conspiracy, or aid and abet the alleged wage and hour violations. Summary judgment for McDonalds therefore is warranted as to those legal theories. The motion must be denied in part, however, because plaintiffs' Labor Code claims may proceed under an ostensible agency theory. Guadalupe Salazar, et al. are represented by Barbara Jane Chisholm, Esq. -- bchisholm@altshulerberzon.com -- Matthew J. Murray, Esq. -- mmurray@altshulerberzon.com -- Michael Rubin, Esq. -- mrubin@altshuberzon.com -- and -- Patrick Casey Pitts, Esq. -- ppitts@altshuberzon.com -- ALSTHULER BERZON LLP -- Joseph Marc Sellers, Esq. -- jsellers@cohenmilstein.com -- and -- Miriam Rose Nemeth, Esq. -- COHEN MILSTEIN SELLERS AND TOLL PLLC McDonald's Corp. et al. are represented by Allison B. Moser, Esq. -- abmosier@jonesday.com -- Catherine Suzanne Nasser, Esq. -- csnasser@jonesday.com -- Elizabeth B. McRee, Esq. -- ebmcree@jonesday.com -- Fred W. Alvarez, Esq. -- fwalvarez@jonesday.com -- Kelsey Israel-Trummel, Esq. -- kitrummel@jonesday -- Lawrence C. DiNardo, Esq. -- ldinardo@jonesday.com -- and -- Matthew W. Lampe, Esq. -- mwlampe@jonesday.com -- JONES DAY MCDONALD'S CORP: Plaintiffs Bar Eyes Franchise Owners ----------------------------------------------------- The Wall Street Journal reports that the National Labor Relations Board has given unions and plaintiff attorneys a cache of weapons to target businesses. Now they've been handed a "two-barreled joint employer shotgun," as plaintiff attorney Michael Rubin crowed about the certification of his class-action lawsuit against McDonald's. Federal Judge James Donato recently allowed four plaintiffs to represent 500 McDonald's franchise employees in wage and overtime claims against the corporation. In 2014 the plaintiffs sued the franchise owner and McDonald's for incorrectly calculating overtime -- adding hours worked after midnight during late-night shifts to the prior day -- and not reimbursing them for washing their uniforms. The franchise owner settled with the workers for $700,000. But McDonald's disputed its liability as a "joint employer," and that's an opening for the plaintiffs bar. In August 2014, the California Supreme Court held in Patterson v. Domino's Pizza LLC that franchisers were not "vicariously liable" for how their franchises treat workers if they don't have a "comprehensive and immediate level of 'day-to-day' authority over matters such as hiring, firing, direction, supervision and discipline of the employee." The court also held that franchisers may protect their brands with "business plan" standards such as requiring workers to keep their uniforms neat and clean. This legal interpretation dovetailed with the Third Circuit Court of Appeals's landmark 1982 decision in NLRB v. Browning-Ferris Industries of Pennsylvania, which the NLRB subsequently adopted. Judge Donato last year threw out claims against McDonald's under a direct control joint-employer standard. However, the NLRB has since rewritten its joint-employer standard to include "indirect control" over workers such as the computer systems that McDonald's provided to franchises to calculate overtime. The NLRB's prosecution of McDonald's as a joint employer under this new standard could set a legal precedent, and unions and the plaintiffs bar certainly hope so. Judge Donato has given plaintiff attorneys more ammo by ruling that McDonald's could be held liable if its franchise employees had a "reasonable belief" the franchise owners were McDonald's "ostensible agents." This obscure legal theory of "ostensible agency" has rarely been applied to franchise relationships. WSH's legal sources couldn't find any cases involving employment-related issues. So the ruling could establish another precedent. This is the double-barreled shotgun that Mr. Rubin celebrates, and other franchisers could be collateral damage. The class-action certification will encourage more lawsuits against corporations as "ostensible agents" and joint employers, which will jack up insurance premiums. The plaintiffs bar could soon be able to target multiple businesses with one lawsuit. MDL 1616: Objections to $835MM Dow Class Settlement Overruled ------------------------------------------------------------- District Judge John W. Lungstrum of the United States District Court for the District of Kansas overruled objections to the class plaintiffs' plan of allocation and distribution of the Dow settlement fund and to the plaintiff counsel's attorney fee petition in the case captioned, IN RE: URETHANE ANTITRUST LITIGATION. This document relates to: The Polyether Polyol Cases, Case No. 1616, Case No. 04-1616-JWL (D. Kan.). In the multi-district class action, initiated in 2004, the plaintiff class alleged that Dow and other manufacturers conspired to fix prices for certain urethane chemical products, in violation of the Sherman Act. The Court certified a class consisting of purchasers of the products from any defendant from January 1, 1999, through December 31, 2004. During the course of the litigation, plaintiffs reached settlements with the other defendants for amounts totaling $139,300,000. The claim against Dow, the remaining defendant, was tried to a jury over a period of four weeks, and on February 20, 2013, the jury awarded plaintiffs damages in the amount of $400,049,039.00, while finding that such amount did not include any damages for the period prior to November 24, 2000. The Court then modified the class to exclude purchases in 2004, and it eventually entered judgment against Dow in the amount of $1,060,847,117, an amount that accounted for statutory trebling and a setoff for the prior settlements. Dow appealed, but the Tenth Circuit affirmed the judgment. Dow then filed a petition for certiorari in the Supreme Court. While the petition for certiorari was pending, plaintiffs and Dow reached a settlement in the amount of $835,000,000, which agreement included a release of all claims by class members based on purchases within the entire class period. On April 27, 2016, the Court issued orders by which it preliminarily approved the settlement and authorized notice to the class. Plaintiffs then filed their motions regarding approval of the settlement, a plan of distribution, and attorney fees. In the motion, PMC Global argues that the allocation cannot be presumed fair because no class representative had a majority of its purchases during the 1999-2000 period. As to the proposed attorney fees in the amount of one-third of the Dow settlement fund, the Objectors class members Johns Manville and Whirlpool argue that a one-third fee would be excessive. The Fairness Hearing to approve the $835 million settlement was held on July 27, 2016 and the Court approved the Settlement, the Plan of Allocation, and the request for an award of attorney's fees, incentive awards, and reimbursement of costs and expenses on July 29, 2016. In his Memorandum and Order dated July 29, 2016 available at https://is.gd/XB9HoL from Leagle.com, Judge Lungstrum concluded that the proposed allocation precluding recovery for such claims is reasonable nor is there any basis to delay the approval of plaintiffs' plan of allocation by requiring additional procedures to allow for further argument. As to the award of attorney fees, the Court found that the award at the top end of the range is warranted and reasonable. Urethane Antitrust Litigation is represented by George A. Hanson, Esq. -- hanson@stuevesiegel.com -- and Norman E. Siegel, Esq. -- siegel@stuevesiegel.com -- STUEVE SIEGEL HANSON LLP; Rex A. Sharp, Esq. -- rsharp@midwest-law.com -- REX A. SHARP, PA; Roy Morrow Bell, Esq. -- roy.bell@troutmaster.com -- TROUTMAN SANDERS LLP; Steven A. Kanner, Esq. -- skanner@fklmlaw.com -- FREED KANNER LONDON & MILLEN, LLC -- Susan G. Kupfer, Esq. -- skupfer@glancylaw.com -- GLANCY BINKOW & GOLDBERG LLP -- W. Joseph Bruckner, Esq. -- wjbruckner@locklaw.com -- LOCKRIDGE GRINDAL NAUEN, PLLP Alco Industries, Inc. is represented by Anthony J. Bolognese, Esq. and Joshua H. Grabar, Esq. -- jgrabar@bolognese-law.com -- BOLOGNESE & ASSOCIATES, LLC; Norman E. Siegel, Esq. -- siegel@stuevesiegel.com -- STUEVE SIEGEL HANSON LLP; Rex A. Sharp, Esq. -- rsharp@midwest-law.com -- REX A. SHARP, PA Arctic-Temp, Inc. is represented by David H. Weinstein, Esq. -- weinstein@wka-law.com -- WEINSTEIN KITCHENOFF & ASHER LLC; Norman E. Siegel, Esq. -- siegel@stuevesiegel.com -- STUEVE SIEGEL HANSON LLP -- Rex A. Sharp, Esq. -- rsharp@midwest-law.com -- REX A. SHARP, PA BASF AG is represented by Andrew Stanley Marovitz, Esq. -- amarovitz@mayerbrown.com -- Jason Brett Fliegel, Esq. -- jfliegel@mayerbrown.com -- and Terri A. Mazur, Esq. -- tmazur@mayerbrown.com -- MAYER, BROWN, ROWE & MAW LLP; David F. Oliver, Esq. -- doliver@berkowitzoliver.com -- BERKOWITZ OLIVER LLP MDL 2516: Court Narrows Claims in Buyers' Amended Complaint ----------------------------------------------------------- In the case, Aggrenox Antitrust Litigation et al, Plaintiffs, v. Barr Pharmaceuticals Inc. et al, Defendants, No. 3:14-md-2516 (SRU) (D. Conn.), District Judge Stefan R. Underhill of the United States District Court for the District of Connecticut granted in part and denied in part the defendant's motions to dismiss indirect-purchaser plaintiffs' amended complaint, Humana's amended complaint and Louisiana Health's complaint. On March 23, 2015, the court issued a decision on several motions to dismiss in this complex multidistrict litigation (MDL). The court later expanded upon and clarified some aspects of that decision in an order granting a motion to certify it for interlocutory appeal under 28 U.S.C. Sec. 1292(b).The March 23 Order included many subsidiary rulings so its holding was somewhat complicated. The IPPs, Humana, and Louisiana Health all plead claims for injunctive relief, and the defendants move to dismiss them on the same basis that they moved to dismiss similar claims pleaded by the retailer plaintiffs. The defendants argue that the claims for injunctive relief are moot, because there is nothing left to enjoin. The plaintiffs argue vaguely about the ongoing threat that the generics could be removed from the market and assert that even if the generics are not removed, the injunctive claims are not moot because the court has the authority to enjoin bad actors from committing other similar bad acts in the future. The defendants move to dismiss the IPPs' and Louisiana Health's claims under the Illinois Consumer Fraud Act on the dual grounds that that statute does not reach antitrust conduct and that the plaintiffs have not sufficiently pleaded a consumer nexus. The defendants also move to dismiss the IPPs' claims under the Illinois Antitrust Act, on the basis that that statute does not permit indirect-purchaser class actions unless they are brought by the Illinois Attorney General. In his Memorandum of Decision and Order dated August 9, 2016 available at https://is.gd/7T2Q7u from Leagle.com, Judge Underhill concluded that the indirect purchasers and Humana have listed claims under very many state laws, but they have not truly pleaded claims under those laws sufficient to show their entitlement to recovery under them, as required by Rule 8. The court granted as to Vermont consumer fraud claims because Humana has not offered authority for the proposition that the Vermont Consumer Fraud Act reaches antitrust conduct. A.F. of L. - A.G.C. Buildings Trade Welfare Plan is represented by Mathew P. Jasinski, Esq. -- mjasinski@motleyrice.com -- Michael M. Buchman, Esq. -- mbuchman@motleyrice.com -- William H. Narwold, Esq. -- bnarwold@motleyrice.com -- MOTLEY RICE LLC Painters District Council No. 30 Health & Welfare Fund is represented by Mathew P. Jasinski, Esq. -- mjasinski@motleyrice.com -- William H. Narwold, Esq. -- bnarwold@motleyrice.com -- MOTLEY RICE LLC - Mitchell M. Breit, Esq. -- mbreit@simmonsfirm.com -- SIMMONS HANLY CONROY, LLP -- Sarah S. Burns, Esq. -- sburns@simmonsfirm.com -- SIMMONS BROWDER GIANARIS ANGELIDES & BARNERD LLC -- Lori Ann Fanning, Esq. -- lfanning@millerlawllc.com -- Marvin A. Miller, Esq. -- mmiller@millerlawllc.com -- MILLER LAW LLC Miami-Luken, Inc. is represented by Anne Mathilde Schmidt, Esq. -- aschmidt@odrlaw.com -- Craig Matthew Glantz, Esq -- cglantz@odrlaw.com -- Dan Chiorean, Esq., at Stuart Edward Des Roches, Esq -- stuart@odrlaw.com -- ODOM & DES ROCHES, LLC -- Brian D. Brooks, Esq -- bbrooks@ssrllp.com -- David C. Raphael, Jr Esq --- draphael@ssrllp.com -- Erin R. Leger, Esq. -- eleger@ssrllp.com -- SMITH SEGURA & RAPHAEL, LLP; Ephraim R. Gerstein, Esq. -- egerstein@garwingerstein.com -- Bruce E. Gerstein, Esq. -- bgerstein@garwingerstein.com -- Jonathan Michael Gerstein, Esq. -- jmichael@burkelaw.com -- Joseph Opper, Esq. -- jopper@garwingerstein.com -- GARWIN GERSTEIN & FISHER, LLP; Daniel C. Simons, Esq. -- dsimons@bm.net -- David F. Sorensen, Esq. -- dsorensen@bm.net -- BERGER & MONTAGUE, P.C. -- Miranda Yan Jones, Esq. -- mjones@hpcllp.com -- Russell Allen Chorush,Esq. -- rchorush@hpcllp.com -- HEIM, PAYNE & CHORUSH, LLP Barr Pharmaceuticals Inc. is represented by Brigid M. Carpenter, Esq. -- bcarpenter@bakerdonelson.com -- BAKER, DONELSON, BERMAN, CALDWELL & BERKOWITZ, P.C., Peter J. Carney, Esq. -- pcarney@whitecase.com -- WHITE & CASE; Robert D. Carroll, Esq. -- rcarroll@goodwinlaw.com -- Sarah K. Frederick, Esq. -- sfrederick@goodwinlaw.com -- and Christopher T. Holding, Esq. -- cholding@goodwinlaw.com -- GOODWIN PROCTER LLP; Assaf Ze'ev Ben- Atar, Esq. -- abenatar@pullcom.com -- PULLMAN & COMLEY; and James T. Shearin, Esq. -- jtshearin@pullcom.com -- PULLMAN & COMLEY. Boehringer Ingelheim International GmbH, Defendant is represented by Jaime M. Crowe, Esq. -- jcrowe@whitecase.com -- Alison Hanstead, Esq. -- ahanstead@whitecase.com -- J. Mark Gidley, Esq. -- mgidley@whitecase.com -- Jack E. Pace, III, Esq. -- jpace@whitecase.com -- Matthew S. Leddicotte, Esq. -- mleddicotte@whitecase.com -- Peter J. Carney, Esq. -- pcarney@whitecase.com -- and Robert A. Milne, Esq. -- rmilne@whitecase.com -- WHITE & CASE; Richard P. Colbert, Esq. -- rpcolbert@daypitney.com -- and Bryan James Orticelli, Esq. -- borticelli@daypitney.com -- DAY PITNEY LLP MDL 2580: Court Narrows End-Payor Purchaser Plaintiffs' Suit ------------------------------------------------------------ District Judge Harry D. Leinenweber of the United States District Court for the Northern District of Illinois granted in part Defendants' motion to dismiss End-Payor Purchaser Plaintiffs' Second Consolidated Amended Complaint in the case captioned, IN RE OPANA ER ANTRITRUST LITIGATION, Case No. 2580, Case No. 14 C 10150 (N.D. Ill.). In their Second Consolidated Amended Class Action Complaint, End- Payor Purchaser Plaintiffs (EPPs) bring claims under the antitrust, consumer protection, and unjust enrichment laws of numerous states against Endo Health Solutions Inc., Endo Pharmaceuticals Inc., Penwest Pharmaceuticals Co. (collectively, Endo), and Impax Laboratories, Inc. (Impax) (Defendants). EPPs contend that Defendants delayed the entry of generic versions of Opana ER to the Oxymorphone ER Market by entering into an illegal reverse payment agreement to settle ongoing patent infringement litigation between Endo and Impax. In its February 10, 2016 Memorandum Opinion and Order, the Court dismissed EPPs' state law consumer protection and unjust enrichment claims because EPPs failed to plead sufficiently such claims under the specific laws of each state. Because the Court dismissed the claims on that basis, it did not reach the other substantive arguments Defendants had made in favor of dismissal. The Court granted EPPs leave to replead all of their state law consumer protection and unjust enrichment claims in a non- conclusory fashion. Defendants seek dismissal of EPPs' unjust enrichment claims under the laws of California, Florida, Illinois, Iowa, Kansas, Maine, Massachusetts, Michigan, Missouri, New Hampshire, North Carolina, North Dakota, Pennsylvania, Rhode Island and Utah and EPPs' consumer protection claim under Missouri law. In his Memorandum Opinion and Order dated August 11, 2016 available at https://is.gd/MNQ8bO from Leagle.com, Judge Leinenweber dismissed with prejudice EPPs' unjust enrichment claims under the laws of Illinois and Rhode Island holding that allowing EPPs to maintain their Illinois and Rhode Island unjust enrichment claims would enable them to sidestep impermissibly those states' prohibitions on antitrust recovery for indirect purchasers and denied as to EPPs' unjust enrichment claims under the laws of Florida, Kansas, Maine, Michigan, North Carolina, North Dakota and Utah because Defendants has sufficiently plead to state a claim of unjust enrichment, EPP's unjust enrichment claim under New Hampshire law because it would certainly be unconscionable to allow Defendants to retain the benefit they received as a result of EPPs' overpayments and EPPs' consumer protection claim under the Missouri law because it would seem incongruous to prohibit EPPs' claim under the policy of Illinois Brick. Rochester Drug Co-Operative, Inc., et al. are represented by Andrew C. Curley, Esq. -- acurley@bm.net -- David F. Sorensen, Esq. -- dsorensen@bm.net -- and Zachary David Caplan, Esq. -- zcaplan@bm.net -- BERGER & MONTAGUE, P.C.; Joseph T. Lukens, Esq. -- jlukens@faruqilaw.com -- and Peter R. Kohn, Esq. -- pkohn@faruqilaw.com -- FARUQI & FARUQI, LLP Massachusetts Bricklayers & Masons Health and Welfare Fund is represented by Gregory Asciolla, Esq. -- gasciolla@labaton.com -- Matthew J. Perez, Esq. -- mperez@labaton.com -- and Jay L. Himes, Esq. -- jhimes@labaton.com -- LABATON SUCHAROW LLP Plumbers & Pipefitters Local 178 Health & Welfare Trust Fund is represented by Donald Lewis Sawyer, Esq. -- dsawyer@fklmlaw.com -- Michael Jerry Freed, Esq. -- mfreed@fklmlaw.com -- Robert J. Wozniak, Esq. -- rwozniak@fklmlaw.com -- and Steven A. Kanner, Esq. -- skanner@fklmlaw.com -- FREED KANNER LONDON & MILLEN, LLC Impax Laboratories, Inc. is represented by Danielle R. Foley, Esq. -- drfoley@Venable.com -- Lisa Jose Fales, Esq. -- ljfales@Venable.com -- and James Douglas Baldridge, Esq. -- jdbaldridge@Venable.com -- VENABLE LLP; Joanna Rubin Travalini, Esq. -- jtravalini@winston.com -- Kevin Fitzgerald Wolff, Esq. -- kwolff@winston.com -- Lawrence R. Desideri, Esq. -- ldesideri@winston.com -- and Maureen L. Rurka, Esq. -- mrurka@winston.com -- WINSTON & STRAWN LLP Endo Health Solutions Inc., et al. are represented by Angela M. Liu, Esq. -- angela.liu@dechert.com -- Christine C. Levin, Esq. -- christine.levin@dechart.com -- George Gabriel Gordon, Esq. -- george.gordon@dechart.com -- Jennings F. Durand, Esq. -- jennings.durand@dechert.com -- Nathan E. Hoffman, Esq. -- Nathan.hoffman@dechert.com -- and Quinn Colleen Shean, Esq. - quinn.shean@dechert.com -- DECHERT LLP MEMPHIS, TN: Police Dep't Settles Class Action Over Promotions -------------------------------------------------------------- Kim Chaney, writing for Local Memphis, reports that a settlement has been reached in one of the class action lawsuits involving promotions within the Memphis Police Department. The legal battle has lasted more than 14 years. The lawsuit involves the police promotions testing in 2002. Some officers claimed the test was racially discriminatory, and filed a lawsuit against the city of Memphis. An appeals court ruled in favor of the city, and the Supreme Court refused to take up the case. The officers involved were initially promoted to the rank of Sergeant by order of the court. The city says all but one of those officers have been subsequently been promoted through completing higher-ranking exams. Some have even obtained the rank of Major. The settlement allows most of the officers to keep their current rank, which was obtained through testing and seniority. The city says the single officer who is currently a Sergeant will have to pass a new test to keep the rank, or will be subject to demotion. As part of the settlement, the plaintiffs agreed to dismiss their appeal. MG WHOLESALE: "Yu" Suit to Recover OT, Minimum Wages ---------------------------------------------------- Yu Sen Chen, individually and on behalf of all other employees similarly situated, Plaintiff, v. MG Wholesale Distribution Inc., "Andy" Zhang, Xiao Min Yang, Defendants, Case No. 1:16-cv-04439, (E.D. N.Y., August 9, 2016), seeks to recover unpaid minimum wages, unpaid overtime wages, liquidated damages, prejudgment and post-judgment interest and attorneys' fees and costs, damages for failure to provide wage notice at the time of hiring and failure to provide wage payment statements pursuant to the Fair Labor Standards Act and New York Labor Law. Plaintiff was hired by Defendants to work as a truck loader for Defendants' wholesale business located at 56-71 49th Place, Maspeth, NY 11378. Plaintiff is represented by: Jian Hang, Esq. HANG & ASSOCIATES, PLLC 136-18 39th Avenue, Suite 1003 Flushing, NY 11354 Tel: (718) 353-8588 Email: jhang@hanglaw.com MOISES GONZALEZ: "Rivera" Suit Seeks Overtime Wages Under FLSA -------------------------------------------------------------- MARTA RIVERA, individually and as class representative of all similarly situated individuals, the Plaintiff, v. MOISES GONZALEZ LAWN SERVICES, INC., a Florida Corporation; and MOISES GONZALEZ, individually, the Defendants, Case No. 9:16-cv-81447-DMM (S.D. Fla., Aug. 17, 2016), seeks to recover overtime wages pursuant to the Fair Labor Standards Act. Based on Plaintiff's best recollection, she worked approximately 180 hours of overtime for which no overtime premium was paid. Additionally, Plaintiff is owed her regular hourly rate for 120 hours she worked in excess of 50 per work week for which no wages were paid at all. The total unpaid overtime wages and overtime premium due is $2,520.00. Plaintiff is further entitled to liquidated damages in an equal amount. The Defendant operates a commercial and residential landscaping business. It provides general landscaping related services throughout Palm Beach County and South Florida. The Plaintiff is represented by: Christopher C Copeland, Esq. CHRISTOPHER C COPELAND, P.A. 824 W. Indiantown Road Jupiter, FL 33458 Telephone: (561) 691 9048 Facsimile: (866) 259 0719 E-mail: Chris@CopelandPA.com Carla@CopelandPA.com MOLINA HEALTHCARE: Faces Class Action Over TCPA Violation --------------------------------------------------------- Legal News Line reports that a California woman is suing a health care provider, alleging telephone harassment. Carrie Beets filed a class action lawsuit, individually and on behalf of all others similarly situated, July 28 in U.S. District Court for the Central District of California against Molina Healthcare Inc., alleging violation the Telephone Consumer Protection Act. According to the complaint, in April, Beets received at least two calls on her cellular telephone. The suit says she has suffered multiple involuntary telephone and electrical charges, aggravation, nuisance and invasion of privacy. The plaintiff alleges Molina continued to call her despite her request to cease all communications, made calls using an auto- dialer and/or an artificial or prerecorded voice and that calls were made without Ms. Beets' prior express written consent. Ms. Beets seeks a trial by jury, seeks certification for this case to be a proper class action, compensation for all damages, attorney fees, legal costs and such other relief the court deems proper. She is represented by attorneys L. Timothy Fisher, Annick M. Persinger and Yeremey O. Krivoshey of Bursor & Fisher PA in Walnut Creek, and Scott A. Bursor of the same firm in New York. U.S. District Court for the Central District of California Case number 2:16-cv-05642 NAT'L FOOTBALL: Class Action Mulled Over Hall of Fame Non-Game -------------------------------------------------------------- Mike Florio, writing for Profootballtalk, reports that the NFL's definition of "making it right" may not mesh with Ohio's definition of the term. The lawyer who sued on behalf of fans who showed up for Super Bowl XLV with tickets that didn't correspond to actual seats plans to sue the NFL for fans who showed up in Canton on Aug. 7 with tickets for a game that wasn't played. "We plan on filing a class [action] within days," Michael Avenatti said on Twitter. "$0 for fan expenses is a disgrace." (Mr. Avenatti has confirmed via email that the unverified account belongs to him.) Whether it's a disgrace and whether it's a violation of Ohio law are two different questions. Whether the lawsuit can be maintained as a class action is another question as well. After Super Bowl XLV, Mr. Avenatti pursued a class action, but the courts in Texas declined to certify the class, forcing the claims for reimbursement to be pursued in small chunks. One group of seven plaintiffs received $76,000 in litigation that also included allegations of witness tampering by the league. That case also included deposition testimony from a Commissioner who fought not to testify, along with a debate over the meaning of the term "accountable." In this case, "accountable" for the NFL currently means refunding ticket prices only. Eventually, it could mean a lot more than that. NATIONSTAR MORTGAGE: Court Narrows Claims in "Burke" Suit --------------------------------------------------------- Senior District Judge James R. Spencer of the United States District Court for the Eastern District of Virginia granted in part Nationstar Mortgage's motion for judgment on the pleadings in the case captioned, FLOYD RONALD BURKE, on behalf of himself and others similarly situated, Plaintiffs, v. NATIONSTAR MORTGAGE LLC, EVERBANK, EVERBANK FINANCIAL CORPORATION, EVERHOME MORTGAGE LLC, and JOHN DOE COMPANY, Defendants, Civil Action No. 3:14CV837 (E.D. Va.). On December 16, 2014, Plaintiff Floyd Ronald Burke filed a seven- count Class Action Complaint in this Court, alleging the following: "breach of contract for breach of the implied covenant of good faith and fair dealing," (Count I); a class claim (Count II) and an individual claim (Count III) for violations of the Federal and Virginia Equal Credit Opportunity Act (ECOA); violation of the Real Estate Settlement and Procedures Act (RESPA) (Count IV); violations of the Fair Debt Collection Practices Act (FDCPA) (Counts V and VI); and breach of contract (Count VII). On March 13, 2015, Defendants Nationstar and Everbank moved to dismiss Count I, Count III, Count V, and Count VI of the Complaint. On April 17, 2015, Burke filed a response and voluntarily withdrew Counts V and VI, the FDCPA claims alleged in the Class Action Complaint. The Court subsequently granted the Motion to Dismiss with respect to Count I. In the motion, Nationstar seeks to dismiss the remaining claims: Count II, Count III, Count IV, and Count VII contendind that Plaintiff Floyd Ronald Burke fails to state a claim against Nationstar upon which relief can be granted. Burke opposes the motion. In his Memorandum Opinion dated August 9, 2016 available at https://is.gd/5G8eJE from Leagle.com, Judge Spencer granted the motion to dismiss as to Counts II and III because Nationstar was relieved of its "obligation to comply with Subsection 1691(d)(2)'s adverse action notification requirement and denied as to Count IV because Nationstar offers nothing in the form of proof that the letter was, in fact, mailed and Count VII because there is no basis for the court to address the nature of the appropriate relief at the stage of the proceeding. Floyd Ronald Burke is represented by Leonard Anthony Bennett, Esq. -- leonard@clalegal.com -- and Susan Mary Rotkis, Esq. -- susan@clalegal.com -- CONSUMER LITIGATION ASSOCIATES; Andrew Joseph Guzzo, Esq. -- aguzzo@kellyandcrandall.com -- and Kristi Cahoon Kelly, Esq. -- kkelly@kellyandcrandall.com -- KELLY & CRANDALL PLC Nationstar Mortgage, LLC and Everbank, Everbank Financial Corporation are represented by John C. Lynch, Esq. -- john.lynch@troutmansanders.com -- and Jennifer Elle Bowen, Esq. -- jennifer.bowen@troutmansanders.com -- TROUTMAN SANDERS LLP NEIL JONES: Settlement in "Valdez" Case Has Final Approval ---------------------------------------------------------- In the case, LUIS VALDEZ, et al., Plaintiffs, v. THE NEIL JONES FOOD COMPANY, et al., Defendants, Case No. 1:13-cv-00519-SAB, (Nos. 79-82, 86-87), (E.D. Calif.), Magistrate Judge Stanley A. Boone entered judgment in favor of the Plaintiffs, ordered the final approval of the class action settlement and granted Plaintiffs' attorney's fees and incentive awards. The case involves the Defendant's failure to provide meal and rest breaks, failure to pay overtime, failure to pay required "reporting time", failure to pay for all hours worked, failure to pay wages due upon termination, failure to provide itemized wage statements, unfair business practices, conversion, and violation of the Private Attorneys General Act. The Court certified these classes for settlement purposes: (a) Settlement class A consists of any and all persons who were employed by the Defendant in an hourly union-represented position at Neil Jones' Toma-Tek facility located in Firebaugh, California at any time from January 11, 2009 through May 10, 2014. (b) Settlement class B consists of any and all persons who were employed by Neil Jones in an hourly union-represented position or hourly non-union position at Neil Jones' Toma-Tek facility located in Firebaugh, California at any time from January 11, 2009 through December 31, 2014, but excluding anyone whose employment never ended during the class period by reason of a layoff. The Court approved the fees and expenses of CPT Group, Inc., in administering the settlement, in the amount of $40,215.64, are fair and reasonable. Class counsel is awarded attorney fees in the amount of $212,500.00 and costs of $15,000.00 to be paid from the gross settlement fund. The same fund shall also be used in awarding the amount of $3,000.00 as the incentive award to each Class representatives, named, Luis Valdez and Carolina Martinez. A full-text copy of Judge Boone's August 10, 2016 Decision is available at http://goo.gl/R0uuDOfrom Leagle.com. Luis Valdez, Plaintiff, represented by Dennis Patrick Wilson -- WILSONTRIALGROUP@ATT.NET -- Law Offices Of Dennis P. Wilson. The Neil Jones Food Co., Defendant, represented by Andrea Bednarova -- abednarova@fosteremploymentlaw.com -- Foster Employment Law & Michael Eugene Wilbur -- mwilbur@fosteremploymentlaw.com -- Foster Employment Law. NELNET INC: Court Grants Motion to Dismiss, Wants Suit Revised -------------------------------------------------------------- District Judge Gordon J. Quist of the United States District Court for the Western District of Michigan, Southern Division, granted Defendants' motion to dismiss as to all claims, denied Defendant's motion to strike in the case captioned, Kurt Mirandette, Plaintiff, v. Nelnet Inc, et al., Defendants, Case No. 1:16-CV-50. (W.D. Mich.). On February 29, 2008, Plaintiff Mirandette signed a Master Promissory Note (MPN) and became a co-borrower on his daughter's student loans. Mirandette makes all of the loan payments by check, which he mails to Defendants, who service the loans. Mirandette alleges that, in the absence of a definition of the term "Payment Date," the common law requires Defendants to use the date of mailing as the date that a borrower makes a payment. Mirandette alleges that Defendants fail to apply the so-called mailbox rule and instead credit payments much later, resulting in Defendants obtaining millions of dollars in unearned interest and late fees from Mirandette and other borrowers. Plaintiff filed a class action complaint against Nelnet, Inc. and Nelnet Servicing, LLC, alleging jurisdiction under the Class Action Fairness Act of 2005. In his three-count complaint, Mirandette alleges claims for violation of the Nebraska Consumer Protection Act, Neb. Rev. Stat. Sections 59-1602, 1609, and the Nebraska Deceptive Trade Practices Act, Neb. Rev. Stat. Sec. 87- 302(a)(15), and a claim for breach of contract. Mirandette alleges that Defendants improperly reap additional interest and late fees on student loans by failing to timely credit payments. In the motion, Defendants contend that because a promissory note is a unilateral contract that the lender fully performs at the time it disburses the loan proceeds, Defendants could not have breached any contractual duty to Mirandette. Defendants argue that the Plaintiff' claim fails because Mirandette does not allege that Defendants breached any provision of the MPN that obligates Defendants to credit payments as of a certain date. Defendants contend that Mirandette's argument that he made partial payments on the MPN is an affirmative defense to an action on the MPN, rather than an independent claim that may be asserted against a lender. In his Order dated August 11, 2016 available at https://is.gd/9tblEt from Leagle.com, Judge Quist held that Mirandette fails to cite a specific provision in the MPN that Defendants breached. The Court gave Mirandette an opportunity to file a motion for leave to file an amended complaint if he can discern a valid claim. Kurt Mirandette is represented by: Derek Sebastian Witte, Esq. Curt A. Benson, Esq. Sean P. Raymond, Esq. WITTE LAW PLLC 40 Pearl St NW #922, Grand Rapids, MI 49503 Tel:(616)350-9924 Nelnet, Inc., et al Defendants is represented by Bradford S. Moyer, Esq. -- bmoyer@plunkettcooney.com -- Keith Alan Peterson, Esq. -- kpeterson@plunkettcooney.com -- and Robert A. Callahan, Esq. -- rcallahan@plunkettcooney.com -- PLUNKETT COONEY The Defendants are also represented by: Charles Freeman Kaplan, Esq. Daniel Freeman Kaplan, Esq. PERRY, GUTHERY, HAASE & GESSFORD, P.C. 233 S 13th St #1400, Lincoln, NE 68501 Tel:(412)476-9200 NETVISION: Customer Data Class Action Dismissed, Parent Says ------------------------------------------------------------ Jason Aycock, writing for Seeking Alpha, reports that Cellcom Israel says a class action suit that included its subsidiary Netvision has been dismissed. The suit against Netvision and others ended at the request of the plaintiff. It had alleged that another defendant had unlawfully sold private customer data to Netvision and others. The suit (had it been certified as a class action) was seeking 1,000 shekels (about $261.53) for each customer involved -- estimated by the plaintiff at about 1.5M customers, for a total liability of 1.5B shekels (about $392.3M). NEW MIAMI, OH: Speeders' Attorney Seeks $3MM Class Action Award --------------------------------------------------------------- Denise G. Callahan, writing for Journal-News, reports that the operative number in the New Miami speed camera case has always been $1.8 million, but now the speeders are requesting the village pay more than $3 million. New Miami's former speed program was deemed unconstitutional in 2014, when a Butler County judge banned its use and granted the case class-action status, meaning thousands of other motorists who had been cited could join a lawsuit and seek a legal remedy. The village contracted with Optotraffic to run the previous speed camera program and for that service the Maryland traffic camera people were paid $1.2 million or 40 percent of the total fine collection amount of $3 million. Now, the speeders' attorneys have asked a judge to award them the full amount. "We're entitled to all the money they collected under this scheme," attorney Josh Engel said. "The fact that they paid some of this money out to Optotraffic, that's their cost of doing business and that's not our problem." New Miami's attorney James Englert, who doesn't think the speeders have a case, said he doesn't believe the judge should hold New Miami responsible for fines they never received. "The value the village is enriched by is $1.8 million -- we don't have the other amount," he said. "And I don't think it would be right for the court to hold the village for that other amount. They could have sued Optotraffic for that other amount." Engel said they have no intention of suing the former vendor, but New Miami could if they want to recoup the money. Mr. Engel said he is also unconcerned about the fact that the village might not have the money to refund the $95 speeding ticket fines to his clients. He and his partners on the case tried to garnish collections from the new speeding program -- as of June 30 the village has collected $162,056 -- with no success. But he said since Mr. Englert told the judge recently the village has $1.2 million in unencumbered funds and they have the new speed camera revenue stream, the judgment, could be paid. "They can't really claim poverty in this thing," he said. "They can come up with the money." A judge previously ruled the administrative hearing process New Miami employed did not offer speeders due process rights. The case has twice gone to the 12th District Court of Appeals. The Ohio Supreme Court has declined to take over the case. Mr. Englert said they will be taking the case back to the high court. "Their theory of liability under which they are proceeding, the claim of lack of due process, we'll certainly be taking that to supreme court," he said. "So there are a lot of steps along the way before the plaintiffs can recover in this. We feel confident that we did not deprive the motorists of due process. They received very fair administrative hearings." NEW RESIDENTIAL: To Defend Against Securities Class Action ---------------------------------------------------------- New Residential Investment Corp. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 4, 2016, for the quarterly period ended June 30, 2016, that the Company continues intends to vigorously defend the securities class action lawsuit. Three putative class action lawsuits have been filed against HLSS and certain of its current and former officers and directors in the United States District Court for the Southern District of New York entitled: (i) Oliveira v. Home Loan Servicing Solutions, Ltd., et al., No. 15-CV-652 (S.D.N.Y.), filed on January 29, 2015; (ii) Berglan v. Home Loan Servicing Solutions, Ltd., et al., No. 15-CV-947 (S.D.N.Y.), filed on February 9, 2015; and (iii) W. Palm Beach Police Pension Fund v. Home Loan Servicing Solutions, Ltd., et al., No. 15-CV-1063 (S.D.N.Y.), filed on February 13, 2015. On April 2, 2015, these lawsuits were consolidated into a single action, which is referred to as the "Securities Action." On April 28, 2015, lead plaintiffs, lead counsel and liaison counsel were appointed in the Securities Action. On November 9, 2015, lead plaintiffs filed an amended class action complaint. On January 27, 2016, the Securities Action was transferred to the United States District Court for the Southern District of Florida and given the Index No. 16-CV-60165 (S.D. Fla.). The Securities Action names as defendants HLSS, former HLSS Chairman William C. Erbey, HLSS Director, President, and Chief Executive Officer John P. Van Vlack, and HLSS Chief Financial Officer James E. Lauter. The Securities Action asserts causes of action under Sections 10(b) and 20(a) of the Exchange Act based on certain public disclosures made by HLSS relating to its relationship with Ocwen and HLSS's risk management and internal controls. More specifically, the consolidated class action complaint alleges that a series of statements in HLSS's disclosures were materially false and misleading, including statements about (i) Ocwen's servicing capabilities; (ii) HLSS's contingencies and legal proceedings; (iii) its risk management and internal controls; and (iv) certain related party transactions. The consolidated class action complaint also appears to allege that HLSS's financial statements for the years ended 2012 and 2013, and the first quarter ended March 30, 2014, were false and misleading based on HLSS's August 18, 2014 restatement. Lead plaintiffs in the Securities Action also allege that HLSS misled investors by failing to disclose, among other things, information regarding governmental investigations of Ocwen's business practices. Lead plaintiffs seek money damages under the Exchange Act in an amount to be proven at trial and reasonable costs, expenses, and fees. On February 11, 2015, defendants filed motions to dismiss the Securities Action in its entirety. On June 6, 2016, all allegations except those regarding certain related party transactions were dismissed. New Residential intends to vigorously defend the Securities Action. NISSAN NORTH AMERICA: Court Denies Plaintiff's Discovery Bid ------------------------------------------------------------ Magistrate Judge M. David Weisman of the United States District Court for the Northern District of Illinois denied Plaintiff's motion to compel the production of documents withheld as privileged in the case captioned, L. ZINGERMAN, D.D.S., P.C. d/b/a NILES FAMILY DENTAL, individually and on behalf of all others similarly situated Plaintiffs, v. NISSAN NORTH AMERICA, INC., Defendant, Civil No. 14 C 7835 (N.D. Ill.) Plaintiff L. Zingerman D.D.S., P.C., individually and on behalf of a putative class, sues Defendant Nissan North America, Inc. (Defendant or Nissan) for its alleged misrepresentation of the availability of certain technology in its 2014 Infiniti Q50 automobile. In particular, Zingerman claims that Nissan represented that the Q50 contained the "InTouch" interactive telematics system, which enabled users to access various mobile applications. Contrary to such representations, however, Zingerman contends that the system could not perform the tasks Nissan represented it would. On May 20, 2016, Plaintiff filed a motion to compel the production of documents or, in the alternative, an in camera review of documents that total 223 pages of a privilege log. Plaintiff delayed in filing its motion to compel until after the May 13, 2016 close of discovery even though Judge Kim, the then- supervising magistrate judge, advised the parties that the deadline was a "firm deadline." In her Memorandum Opinion and Order dated August 10, 2016 available at https://is.gd/r5efcG from Leagle.com, Judge Wiesman found that an analysis of the Rule 26 factors demonstrates that the value of granting Plaintiff the relief it seeks at this juncture of the litigation -- -an in camera review of hundreds of documents -- is substantially outweighed by the minimal importance of the issues at stake; the minimal importance of the discovery sought in resolving the case; and the extensive burden, expense, and delay attendant to the relief sought. L. Zingerman, D.D.S., P.C. is represented by Ben Barnow, Esq. -- b.barnow@barnowlaw.com -- Erich Paul Schork, Esq. -- e.schork@barnowlaw.com -- and Jeffrey Daniel Blake, Esq. -- j.blake@barnowlaw.com -- BARNOW AND ASSOCIATES, P.C.; Timothy Gordon Blood, Esq. -- tblood@bholaw.com -- BLOOD HURST & O'REARDON, LLP Nissan North America, Inc. is represented by Peter Justin Brennan, Esq. -- pbrennan@jenner.com -- and Jonathan Alexander Enfield, Esq. -- JEnfield@jenner.com -- JENNER & BLOCK LLP NOTIS GLOBAL: Final Fairness Hearing Moved to Sept. 22 ------------------------------------------------------ Notis Global, Inc. said in its Form 8-K Report filed with the Securities and Exchange Commission on August 4, 2016, that the Court has issued another Order continuing the final fairness hearing in the "Crystal" class action lawsuit to September 22, 2106, at 1:30 p.m. Notis Global and the class plaintiffs in Josh Crystal v. Medbox, Inc., et al., Case No. 2:15-CV-00426-BRO (JEMx), pending before the United States District Court for the Central District of California (the "Court") notified the Court of a settlement. The Court stayed the action pending the Court's review of the settlement and directed the parties to file a stipulation of settlement. On December 18, 2015, plaintiffs filed the Motion for Preliminary Approval of Class Action Settlement that included the stipulation of settlement. On February 3, 2016, the Court issued an Order granting preliminary approval of the settlement. The settlement provides for notice to be given to the class, a period for opt outs and a final approval hearing. The Court had scheduled the Final Settlement Approval Hearing to be held on May 16, 2016 at 1:30 p.m. On May 13, 2016, the Court issued an Order continuing the final fairness hearing to August 15, 2016, at 1:30 p.m. On August 3, 2016, the Court issued another Order continuing the final fairness hearing to September 22, 2106, at 1:30 p.m. The disclosure set forth provides notice to potential objectors of the change to the hearing date. NOVA HARDBANDING: "Mishler" Suit Seeks Overtime Pay --------------------------------------------------- Joseph Mishler, on behalf of himself and all others similarly situated, Plaintiff, v. Nova Hardbanding, LLC and Kenneth Bromley, Defendants, Case No. 2:16-cv-00905, (D.N.M., August 9, 2016), seeks declaratory relief, unpaid overtime pay, liquidated and/or other damages as permitted by applicable law and attorney's fees, costs and expenses incurred in violation of the Fair Labor Standards Act. Defendants are into hard-banding for the oil and gas industry where Plaintiff was employed as a hard-bander. Plaintiff is represented by: James M. Loren, Esq. George Z. Goldberg, Esq. GOLDBERG & LOREN, PA 4801 Lang NE, Suite 110 Albuquerque, NM 87109 Office Line: (800) 719-1617 Direct Line: (505) 369-3699 Fax: (888) 272-8822 Email: jloren@lorenlaw.com ggoldberg@goldbergdohan.com OLE MEXICAN FOODS: Settlement in "Guttmann" Wins Final Approval --------------------------------------------------------------- District Judge Haywood S. Gilliam, Jr. of the United States District Court for the Northern District of California granted Plaintiff's motions for final approval of class action settlement and for attorneys' fees and costs in the case captioned, VICTOR GUTTMANN, Plaintiff, v. OLE MEXICAN FOODS, INC., Defendant, Case No. 14-CV-04845-HSG (N.D. Cal.). Plaintiff Victor Guttman's (Plaintiff) filed the food-labeling class action on October 31, 2014. Plaintiff alleges that Defendant failed to properly disclose that its "Xtreme Wellness" line of tortillas contain partially-hydrogenated oil, an artificial trans- fat food additive. On that basis, Plaintiff asserts six causes of action against Defendant for violating California's unfair competition law (UCL), False Advertising Law (FAL), and Consumer Legal Remedies Act (CLRA), and for breaching express warranties. Defendant filed a motion to dismiss on federal preemption grounds and a motion to stay discovery pending resolution of that motion. But Defendant withdrew both after new case law emerged from the Ninth Circuit addressing the preemption issue. The parties agreed to settle the case on a classwide basis shortly thereafter. Before the parties ceased active litigation, Plaintiff served some written discovery on Defendant, to which Defendant served objections and responses. Plaintiff filed a motion for preliminary approval of the class action settlement on July 2, 2015. The proposed settlement would enjoin Defendant from using any partially-hydrogenated oils in their Xtreme Wellness line of tortillas for a period of ten years. In exchange, the putative class would release their claims against Defendant regarding, among other things, the manufacturing, advertising, sale, labeling, and the ingredients of these tortilla products, excepting personal injury claims. Defendant agreed to pay for class notice, which included: (1) publishing a long-form class notice in USA Today; (2) displaying banner advertisements on Facebook (at least 25,000 times); and (3) creating a bilingual website that provided the settlement agreement and other case-related documents. And, upon final approval, the parties agreed that Plaintiff could seek up to $1,800 as an incentive and Plaintiff's counsel could seek up to $85,000 in fees and costs without opposition from Defendant. Id. The Court granted preliminary approval, provisionally certifying the proposed nationwide injunctive-relief class under Federal Rule of Civil Procedure 23(b)(2) and directing class notice as agreed by the parties. In his Order dated August 1, 2016 available at https://is.gd/m8Snri from Leagle.com, Judge Gilliam, Jr. found that the settlement class members received adequate notice; and the settlement is fair, adequate, and reasonable; and Plaintiff's request for attorneys' fees in the amount of $82,837.15, class representative incentive award in the amount of $5,000 and costs in the amount of $2,162.85 is proper and reasonable. Victor Guttmann is represented by Gregory Weston, Esq. -- greg@westonfirm.com -- and David Elliot, Esq. -- david@westonfrim.com -- THE WESTON FIRM Ole Mexican Foods, Inc. is represented by David K. Caplan, Esq. -- dcaplan@kilpatricktownsend.com -- KEATS MCFARLAND & WILSON LLP -- James White Faris, VI, Esq. -- Jfaris@kilpatricktownsend.com -- KILPATRICK TOWNSEND AND STOCKTON LLP OVASCIENCE INC: Co-Lead Plaintiffs File Amended Complaint --------------------------------------------------------- Ovascience, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 4, 2016, for the quarterly period ended June 30, 2016, that the amended consolidated complaint filed by co-lead plaintiffs in a class action lawsuit is without merit and intend to defend against the litigation. The Company said, "On October 9, 2015, a purported class action lawsuit was filed in the Suffolk County Superior Court in the Commonwealth of Massachusetts (the "Superior Court") against us, several of our officers and directors and certain of the underwriters from our January 2015 follow-on public offering of our common stock. The plaintiffs purport to represent those persons who purchased shares of our common stock pursuant or traceable to our January 2015 follow-on public offering. The plaintiffs allege, among other things, that the defendants made false and misleading statements and failed to disclose material information in the Company's January 2015 Registration Statement and incorporated offering materials. Plaintiffs allege violations of Sections 11, 12 and 15 of the Securities Act and seek, among other relief, unspecified compensatory damages, rescission, pre- and post-judgment interest and fees, costs and disbursements. "On December 7, 2015, the OvaScience defendants filed a notice of removal with the Federal District Court for the District of Massachusetts (the "District Court"). On December 30, 2015, plaintiffs filed a motion to remand the action to the Superior Court. "Oral argument on the motion to remand was held on February 19, 2016. On February 23, 2016, the District Court granted plaintiffs' motion to remand the action to the Superior Court. On February 26, 2016, a second purported class action lawsuit was filed in the Suffolk County Superior Court in the Commonwealth of Massachusetts, alleging substantially the same claims against the same parties as the action filed on October 9, 2015. On April 4, 2016, the Superior Court granted the parties' joint motion to consolidate the two cases and appoint co-lead plaintiffs, and ordered the co-lead plaintiffs to file an amended consolidated complaint within sixty days. "On June 17, 2016, co-lead plaintiffs filed an amended consolidated complaint asserting similar allegations and alleging violations of the same sections of the Securities Act of 1933 as the original complaint. We believe that the amended consolidated complaint is without merit and intend to defend against the litigation. There can be no assurance, however, that we will be successful. A resolution of this lawsuit adverse to the Company or the other defendants could have a material effect on our consolidated financial position and results of operations in the period in which the lawsuit is resolved. At present, we are unable to estimate potential losses, if any, related to the lawsuit." PACIFIC PROCESS: Faces Class Action Over FLSA Violation ------------------------------------------------------- Legal News Line reports that two Pennsylvania men are suing their employers, alleging violation of their settlement agreement. Matthew Andrews and Mike Preston, both of Washington, Pennsylvania, filed a class action lawsuit, individually and on behalf of others similarly situated, July 28 in U.S. District Court for the Western District of Pennsylvania Pittsburgh Division against Pacific Process Systems Inc., Alan George and Jerry Wise, alleging violation of the Fair Labor Standards Act. According to the complaint, Messrs. Andrews and Preston have incurred damages for not receiving any of the amounts due from the defendants under their settlement agreement. As a result, the suit says, they have been unable to compensate their attorneys. Messrs. Andrews and Preston seek a trial by jury, an order allowing this case to proceed as class action, damages, attorney fees, legal costs and expenses and such relief to which they are entitled. They are represented by attorneys Joshua P. Geist of Goodrich & Geist PC in Pittsburgh, by Richard J. (Rex) Burch and Matthew S. Parmet of Bruckner Burch PLLC in Houston, and by Michael A. Josephson and Andrew W. Dunlap of Fibich, Leebron, Copeland, Briggs & Josephson in Houston. U.S. District Court for the Western District of of Pennsylvania Pittsburgh Division Case number 2:16-cv-01135 PARKING REVENUE: Unpaid Parking Fees Are Debts, 7th Cir. Says ------------------------------------------------------------- Circuit Judge Diane S. Sykes of the Court of Appeals, Seventh Circuit reversed a trial court's summary judgment order in the case captioned, CARMEN FRANKLIN and JENIFER CHISM, on behalf of themselves and all others similarly situated, Plaintiffs- Appellants, v. PARKING REVENUE RECOVERY SERVICES, INC., and BRYON BELLERUD II, P.C., Defendants-Appellees, Case No. 14-3774 (7th Cir.). Carmen Franklin and Jenifer Chism parked their cars in a Chicago- area lot owned by Metra, the public commuter railroad, and operated by CPS Chicago Parking, LLC. (CPS). The lot offers parking spaces to the public at the rate of $1.50 per day. CPS says the two failed to pay and sent them violation notices demanding payment of the $1.50 fee and a $45 nonpayment penalty. When they still did not pay, CPS referred the matter for collection to Parking Revenue Recovery Services, Inc. (Parking Revenue), which sent them collection letters for the $46.50 total due. Franklin and Chism responded with this class action against Parking Revenue alleging violations of the Fair Debt Collection Practices Act (FDCPA). The suit alleges that parking in the lot was a "transaction" -- Central Parking offers parking to all comers, which the plaintiffs accepted by parking in the lot -- and the payment obligation therefore was a debt, the collection of which is governed by FDCPA. The district court entered summary judgment for Parking Revenue, holding that the FDCPA does not apply because the unpaid parking obligations are not "debts" as that term is defined in Sec. 1692a(5). In her Decision dated August 10, 2016 available at https://is.gd/WDuZuQ from Leagle.com, Judge Sykes concluded that the unpaid parking fees and nonpayment penalties obligations at issue are "debts" within the meaning of the FDCPA. The obligation that arises from that transaction is a "debt," and an attempt to collect it must comply with the FDCPA. Carmen Franklin and Jenifer Chism are represented by: Michael Hilicki, Esq. Keith J. Keogh, Esq. Leslie Rice Melman, Esq. KEOGH LAW LTD 55 W. Monroe, Ste. 3390 Chicago, IL 60603 Tel: (866)726-1092 Parking Revenue Recovery Services, Inc. and Bryon Bellerud II, P.C. are represented by: Stacie E. Barhorst, Esq. KAPLAN PAPADAKIS & GOURNIS PC 180 North LaSalle St., Suite 2108 Chicago, IL 60601 Tel: (312)726-0531 PINNACLE FOODS: "Thornton" Class Action Survives Dismissal Bid -------------------------------------------------------------- District Judge John A. Ross of the United States District Court for the Eastern District of Missouri denied Defendant's motion to dismiss in the case captioned, ERIKA THORNTON, individually and on behalf of all others similarly situated in Missouri, Plaintiff, v. PINNACLE FOODS GROUP LLC, Defendant, Case No. 4:16-CV-00158 JAR (E.D. Mo.). Plaintiff Erika Thornton brought the putative class action in St. Louis City Circuit Court against Defendant Pinnacle Foods Group LLC (Pinnacle), asserting claims for violation of the Missouri Merchandising Practices Act (Count I) and unjust enrichment (Count II). She alleges that on at least one occasion in the five years preceding the filing of this action (the Class period), including in January 2016, she purchased a box of Duncan Hines Simple Mornings Blueberry Streusel Premium Muffin Mix (the Mix). Plaintiff contends that Pinnacle's representation that the Mix contains "Nothing Artificial" is false, deceptive, and misleading. Pinnacle removed the matter to the Court on February 5, 2016 and has moved to dismiss the complaint pursuant to Rules 8, 9(b) and 12(b)(6) of the Federal Rules of Civil Procedure. In his Memorandum and Order dated August 1, 2016 available at https://is.gd/QTOMWn from Leagle.com, Judge Ross found that Plaintiff has alleged a plausible theory of damages, a claim under the MMPA and that it meets the standards of pleading with particularity as set forth in Rule 9(b). Erika Thornton is represented by: Matthew H. Armstrong, Esq. ARMSTRONG LAW FIRM, LLC 655 Montgomery St., Suite 1200 San Francisco, CA 94111 Tel: (415)296-5150 Pinnacle Foods Group LLC is represented by James Muehlberger, Esq. -- jmuehlberger@shb.com -- SHOOK AND HARDY, LLP PREMERA BLUE: Court Narrows Claims in Customer Data Breach Suit --------------------------------------------------------------- District Judge Michael H. Simon of the United States District Court for the District of Oregon granted in part the motion to dismiss in the case captioned, IN RE: PREMERA BLUE CUSTOMER DATA SECURITY BREACH LITIGATION. This Document Relates to All Actions, Case No. 3:15-MD-2633-SI (D. Or.). Plaintiffs bring the putative class action against Defendant Premera Blue Cross (Premera), a healthcare benefits provider. On March 17, 2015, Premera publicly disclosed that its computer network had been breached. Plaintiffs allege that the breach compromised the confidential information of approximately 11 million current and former members, affiliated members, and employees of Premera. According to Plaintiffs, the breach began in May 2014, and went undetected for almost a year. Plaintiffs further allege that after discovering the breach, Premera waited several months before notifying all affected individuals. Based on these allegations, among others, Plaintiffs assert that they have been damaged in several ways and bring various common law claims and state statutory claims. Premera moves to dismiss several of Plaintiffs' claims and several of Plaintiffs' damage theories invoking Rule 12(b)(6) of the Federal Rules of Civil Procedure. Premera challenges the allegations of fraud contained in Plaintiffs' First Claim (Washington CPA), Seventh Claim (other state consumer protection laws), and Eleventh Claim (Misrepresentation by Omission). Premera argues that Plaintiffs' allegations of fraud fail to comply with the heightened pleading requirements of Rule 9(b) of the Federal Rules of Civil Procedure. In his Opinion and Order dated August 1, 2016 available at https://is.gd/aACpbv from Leagle.com, Judge Simon granted the motion to dismiss as to Plaintiffs' breach of express contract and breach of implied contract and breach of fiduciary duty since Plaintiffs insufficiently alleged such claim and by failing adequately to allege the existence of a fiduciary relationship. The Court found that Plaintiffs have sufficiently alleged unjust enrichment, violation of the California Confidentiality of Medical Information Act, causation, and damages. The Court directed Plaintiffs leave to file a Second Consolidated Class Action Complaint consistent with the Opinion and Order. Premera Blue Cross, In Re is represented by Daniel R. Warren, Esq. -- dwarren@bakerlaw.com -- James A. Sherer, Esq. -- jsherer@bakerlaw.com -- and Paul G. Karlsgodt, Esq. -- pkarlsgodt@bakerlaw.com -- BAKER & HOSTETLER LLP; Darin M. Sands, Esq. -- sandsd@lanepowell.com -- LANE POWELL, PC All Plaintiffs are represented by Chase C. Alvord, Esq. -- calvord@tousley.com -- Christopher I. Brain, Esq. -- cbrain@tousley.com -- Jason T. Dennett, Esq. -- jdennett@tousley.com -- and Kim D. Stephens, Esq. -- kstephens@tousley.com -- TOUSLEY BRAIN STEPHENS PLLC; Keith S. Dubanevich, Esq. -- kdubanevich@stollberne.com -- and Steve D. Larson, Esq. -- slarson@stollberne.com -- STOLL STOLL BERNE LOKTING & SHLACHTER P.C. PROVIDE COMMERCE: Plaintiff Attorney's Fees & Costs Affirmed ------------------------------------------------------------ District Judge Cynthia Bashant of the United States District Court for the Southern District of California adopted the orders of Judge Anthony Battaglia in their entirety in the case captioned, In re: EASYSAVER REWARDS LITIGATION, Case No. 09-CV-02094-BAS-WVG (S.D. Cal.). According to Plaintiffs, when class members completed a purchase on one of Provide Commerce Inc.'s retail websites, they were presented with a pop-up window offering $15.00 off their next purchase as a "Thank you" gift, and asking them to enter their zip code and email address and click "Accept" to receive the gift. Provide Commerce then transmitted this private payment information to Encore Marketing International (EMI) without consent. EMI proceeded to enroll class members in a Rewards Program and charged their credit or debit cards a $1.95 activation fee, followed by a $14.95 monthly fee. Provide Commerce and EMI deny these allegations, claiming the Rewards Program details were adequately disclosed and that Plaintiffs entered into electronic contracts with EMI for membership in the Rewards Program. On February 4, 2013, Judge Battaglia issued a Final Order approving the class settlement; granting Plaintiffs' motion for attorneys' fees, costs and incentive awards; and overruling Objector Perryman's objections. Based on the Order, on February 21, 2013, Judge Battaglia entered a Final Judgment dismissing with prejudice the action and retaining jurisdiction over the implementation, administration and enforcement of the Final Judgment, the Settlement Agreement and all matters ancillary thereto. Counsel in the case negotiated a class settlement worth as much as $38 million on behalf of 1,500,000 class members. Class counsel requests an $8.65 million award in attorneys' fees, which is 22.7% of the overall recovery, below the typical 25% benchmark. On appeal, Objector Perryman argues that the $38 million is over- inflated since it requires class members to use their $20 merchandise credit, and a more realistic assessment of the recovery is the fund with no merchandise credits included, or $12.5 million. In her Order dated August 9, 2016 available at https://is.gd/48ezjG from Leagle.com, Judge Bashant found that the rates billed by the attorneys and the incentive awards are reasonable and appropriate. Josue Romero, et al. are represented by Alisa A. Martin, Esq. -- alisa@amartinlaw.com -- AMARTIN LAW, PC; Bruce W. Steckler, Esq. - - Steckler@CommercialTrialLaw.com -- and Mazin A. Sbaiti, Esq. -- Mazin@CommercialTrialLaw.com -- THE STECKLER LAW FIRM; Gene J. Stonebarger, Esq. -- gstonebarger@stonebargerlaw.com -- STONEBARGER LAW, APC; Isam C. Khoury, Esq. -- ikhoury@ckslaw.com - - and Michael D. Singer, Esq. -- msinger@ckslaw.com -- COHELAN KHOURY & SINGER; James Richard Patterson, Esq. -- jim@pattersonlawgroup.com -- PATTERSON LAW GROUP, APC; Jennie Lee Anderson, Esq. -- jennie@andrusanderson.com -- ANDRUS ANDERSON LLP; Kimberly Dawn Neilson, Esq. -- kim@frisellalaw.com -- LAW OFFICE OF LISA J. FRISELLA, APC Kimberly Kenyon and Gina Bailey are represented by Bruce W. Steckler, Esq. -- Steckler@CommercialTrialLaw.com -- and Mazin A. Sbaiti, Esq. -- Mazin@CommercialTrialLaw.com -- THE STECKLER LAW FIRM; Jennie Lee Anderson, Esq. -- jennie@andrusanderson.com -- ANDRUS ANDERSON LLP; Alisa A. Martin, Esq. -- alisa@amartinlaw.com -- AMARTIN LAW, PC; James Richard Patterson, Esq. -- jim@pattersonlawgroup.com -- PATTERSON LAW GROUP, APC; Kimberly Dawn Neilson, Esq. -- kim@frisellalaw.com -- LAW OFFICE OF LISA J. FRISELLA, APC Provide Commerce, Inc. is represented by Leo P. Norton, Esq. -- lnorton@cooley.com -- Michael G. Rhodes, Esq. -- rhodesmg@cooley.com -- and Michelle C. Doolin, Esq., COOLEY GODWARD Regent Group, Inc. is represented by Michael L. Kirby, Esq. -- mike@kirbyandkirbylaw.com -- NOONAN LANCE BOYER & BANACH LLP; Jacie C. Zolna, Esq. -- jzolna@cherry-law.com -- and Myron Milton Cherry, Esq. -- mcherry@cherry-law.com -- MRYON M. CHEERY & ASSOCIATES, LLC QUESTAR CORP: 4 Lawsuits Over Merger Deal Still Pending ------------------------------------------------------- Questar Corporation, Questar Gas Company and Questar Pipeline Company said in their Form 10-Q Report filed with the Securities and Exchange Commission on August 4, 2016, for the quarterly period ended June 30, 2016, that as of August 3, 2016, six lawsuits challenging the Merger have been filed purportedly on behalf of Questar shareholders, of which four are pending in the Third District Court, Salt Lake County, Utah, and two are pending in the United States District Court of Utah, Central Division. Questar entered into an Agreement and Plan of Merger with Dominion Resources, Inc. ("Dominion Resources") and its wholly-owned subsidiary, Diamond Beehive Corp. on January 31, 2016, pursuant to which Questar shareholders have the right to receive $25.00 per share in cash, subject to the satisfaction of specified conditions. If the Dominion Merger is completed, Questar will become a wholly-owned subsidiary of Dominion Resources. As of August 3, 2016, six lawsuits challenging the Merger have been filed purportedly on behalf of Questar shareholders, of which four are pending in the Third District Court, Salt Lake County, Utah, and two are pending in the United States District Court of Utah, Central Division. Each of the lawsuits names Questar, Questar's directors, Dominion Resources and Diamond Beehive Corp. as defendants. The named plaintiffs in the four lawsuits pending in Third District Court are John Hansen, Eric Senatori, Shiva Stein and James E. Toth, and Teamsters Local 456 Pension Fund and Teamsters Local 456 Annuity Fund, respectively. The named plaintiffs in the two lawsuits pending in U.S. District Court are Kevin Hessel and Dan Ipson, respectively. All of the lawsuits are purported shareholder class actions advancing substantially the same allegations that the Merger Agreement was adopted in violation of the fiduciary duties of Questar's directors and seeking injunctive relief to enjoin the Dominion Merger, as well as other remedies. All of the cases raise direct claims on behalf of Questar shareholders. In addition, one of the cases raises derivative claims on behalf of Questar. On April 21, 2016, the Third District Court granted a request to consolidate all four cases pending in Third District Court into Teamsters Local 456 Pension Fund, et al. v. Ronald W. Jibson, et al. (Case No. 160900938). On April 22, 2016, the court appointed Teamsters Local 456 Pension Fund as lead plaintiff in the consolidated matter. The court also appointed lead counsel and liaison counsel. On May 5, 2016 the parties of the state action entered into a Memorandum of Understanding and reached an agreement-in-principle providing for settlement of the state action, subject to confirmatory discovery and court approval. The federal plaintiffs are not signatories to the MOU and their cases remain pending, although the federal plaintiffs have stated that they intend to dismiss the federal cases within five days of the approval of the settlement and entry of an Order and Final Judgment in the state cases. The outcome of these lawsuits is uncertain, and additional lawsuits may be brought or additional claims advanced concerning the Merger. An adverse judgment for monetary damages could have an adverse effect on Questar's operations. RELYPSA INC: "Zavolas" Seeks to Block $1.53 BB Merger Deal ---------------------------------------------------------- JOHN ZAVOLAS Individually and on Behalf of All Others Similarly Situated, the Plaintiff, v. RELYPSA, INC., DANIEL K. SPIEGELMAN, JOHN A. ORWIN, JOHN P. BUTLER, PAUL J. HASTINGS, KENNETH J. HILLAN, M.B.Ch.B., DAVID W.J. MCGIRR, THOMAS J. SCHUETZ, M.D., Ph.D., and HELEN TORLEY, M.B.Ch.B., M.R.C.P., the Defendants, Case No. 3:16-cv-04735 (N.D. Cal., Aug. 17, 2016), seeks to enjoin Defendants from closing a tender offer and taking any steps to consummate a merger between Buyer and Relypsa, and seeks damages resulting from the Defendants' violations of the Exchange Act in the event the merger is consummated. According to the complaint, Relypsa's board approved a sale of the Company in order to obtain personal benefits they negotiated with the Buyer to the detriment of Relypsa's public stockholders. The Buyer will acquire 100% of the outstanding shares of Relypsa common stock through an all-cash tender offer followed by a second-step merger (Proposed Transaction). The Buyer has offered Relypsa investors $32.00 per share in cash, or a total of approximately $1.53 billion. The Agreement and Plan of Merger, is dated July 20, 2016. Even though the $32.00 Offer Price does not fully value Relypsa's future standalone prospects, the Company's Board members agreed to support the Proposed Transaction because it will allow them to liquidate their Relypsa stock for a significant profit. The Plaintiff is represented by: Barbara A. Rohr, Esq. FARUQI & FARUQI 10866 Wilshire Boulevard, Suite 1470 Los Angeles, CA 90024 Telephone: (424) 256 2884 Facsimile: (424) 256 2885 E-mail: brohr@faruqilaw.com REPUBLIC SERVICES: Fails to Pay Proper OT, "Taylor" Suit Claims --------------------------------------------------------------- CHARLES TAYLOR, Individually and on behalf of all others similarly situated v. REPUBLIC SERVICES, INC., Case No. 2:16-cv-02760-DGC (D. Ariz., August 16, 2016), alleges that Republic failed to pay the proper amount of overtime to the Plaintiff and the putative class members in accordance with the Fair Labor Standards Act for the three-year period preceding the filing of the complaint. Mr. Taylor was employed as a non-exempt waste disposal driver at Republic's San Antonio, Texas waste disposal facility from approximately May 1, 2013, until December 1, 2015. Republic Services, Inc., is a for-profit corporation incorporated in the state of Delaware and is headquartered in Phoenix, Arizona. Republic provides waste collection and disposal services to its customers throughout the United States. The Plaintiff is represented by: Zachary Mushkatel, Esq. MUSHKATEL, ROBBINS & BECKER, P.L.L.C. 15249 North 99th Avenue Sun City, AZ 85351 Telephone: (480) 428-0992 Facsimile: (623) 974-4739 E-mail: zach@phoenixlawteam.com - and - Austin W. Anderson, Esq. Clif Alexander, Esq. Lauren E. Braddy, Esq. ANDERSON2X, PLLC 819 North Upper Broadway Corpus Christi, TX 78401 Telephone: (361) 452-1279 Facsimile: (361) 452-1284 E-mail: austin@a2xlaw.com clif@a2xlaw.com lauren@a2xlaw.com ROCKWELL INT'L: June 1, 2017 Claims Filing Deadline Set ------------------------------------------------------- John Aguilar, writing for Denver Post, reports that payouts to property owners in long-running Rocky Flats suit should start in 2017. For those who lived in the shadow of the former Rocky Flats nuclear plant -- and for those who still do -- compensation for loss of property value triggered by the noxious stew of chemicals and radioactive elements that were produced at the sprawling facility and dispersed downwind is moving from dream to reality. A federal judge gave preliminary approval to a $375 million settlement that was reached in May between thousands of property owners living east of Rocky Flats and the plant's longtime operators, Rockwell International Corp. and Dow Chemical Co. The approval from U.S. District Judge John L. Kane puts into motion a timeline whereby 13,000 to 15,000 eligible households and other property owners in neighborhoods surrounding Standley Lake could see payments for damages as early as next year. The deadline to file a claim is June 1, 2017, and payment by Dow and Rockwell into a settlement fund must be made by July 28, 2017, according to Kane's order. Information about the settlement and eligibility for compensation can be found at a special website set up for claimants -- www.rockyflatssettlement.com -- that went live on Aug. 8. Merrill Davidoff, lead attorney for the plaintiffs, said within a few weeks an interactive element will be added to the website whereby a property owner can type in an address to see if they are eligible to make a claim. Property owners, including their heirs, can file a claim of property devaluation as long as the property was in their hands on June 7, 1989. That was the day after the FBI raided the plant to look for environmental crimes. "This is by far the largest dollar amount agreed to be paid out by a nuclear weapons plant to neighboring properties," Mr. Davidoff said on Aug. 8. The judge's order is one of a number of final steps being taken to put an end to a class action lawsuit, dubbed Cook et al. vs. Rockwell International, that has dragged on since 1990 and saw an award of $926 million in 2006 overturned by the 10th U.S. Circuit Court of Appeals four years later. "This shows how difficult and daunting it is to mount a fight against a U.S. weapons contractor backed up by the U.S. government," Mr. Davidoff said. Kathleen Genoff, a 63-year-old Arvada resident who has owned a condo on the east side of Standley Lake since 1984, said a quarter century-plus to arrive at a resolution to the case was excessive. "The wheels of justice move, but in slow motion," she said. "At least, we'll get something out of it." An attorney representing Dow, which ran the plant from 1952 to 1975, and Rockwell, which ran it from 1975 until 1989, declined to comment on Aug. 8. Dow spokeswoman Rachelle Schikorra said the settlement is "the right decision for the company and its shareholders." "In addition, the U.S. Department of Energy authorized the settlement, and Dow fully expects to be indemnified for the full cost of the settlement," she said. The 6,500-acre Rocky Flats, 16 miles northwest of Denver, manufactured plutonium triggers for the nation's nuclear arsenal. It formally shut down in 1992 and underwent a $7 billion cleanup that concluded in 2005. The allocation for the $375 million settlement, according to the Kane's order, is 81.5 percent for residential properties, 15.3 percent for vacant land and 3.2 percent for commercial properties. Up to 40 percent of the total -- or $150 million -- could be awarded as fees to the attorneys in the case. Property owners should be receiving letters about their legal rights in the next couple of months while advertisements will be placed in local newspapers to get the word out, Mr. Davidoff said. Lillian Halligan, who is 96 and has lived on the south shore of Standley Lake for three decades, said she isn't surprised a settlement took so long to reach. "I'm used to things dragging on," she said. "I just hope I am here to collect." RONKA RESTAURANT: Polanco Seeks Unpaid Overtime Under FLSA ---------------------------------------------------------- RAMON MOREL POLANCO and RANULFO ROJAS, on behalf of themselves and FLSA Collective Plaintiffs, the Plaintiffs, v. RONKA RESTAURANT LLC, KIERAN STAUNTON, ORLAITH STAUNTON, VORTEX HOSPITALITY LLC, PAUL LONGO and PAUL MCDAID, the Defendants, Case No. 1:16-cv-04586 (E.D.N.Y., Aug. 17, 2016), seeks to recover unpaid overtime, liquidated damages, attorneys' fees and costs, unpaid spread of hours premium, and statutory penalties, pursuant to the Fair Labor Standards Act (FLSA) and New York Labor Law. The Defendants allegedly operated their business with a policy of not paying Plaintiffs and FLSA Collective Plaintiffs the FLSA overtime rate (of time and one-half) or the New York State Law. The Defendants operate a restaurant by the trade name "Molly Bloom" located at 43-13 Queens Blvd., Sunnyside, New York. The Plaintiff is represented by: C.K. Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 30 East 39th Street, Second Floor New York, NY 10016 Telephone: (212) 465 1188 Facsimile: (212) 465 1181 SAN JOSE, CA: Police Dep't Faces Class Action Over Gay Sex Stings ----------------------------------------------------------------- John Wright, writing for Towleroad, reports that San Jose police are facing a class-action lawsuit for allegedly singling out gay men in sex stings at a public restroom. The Police Department cited dozens of men at Columbus Park in 2014 and 2015, charging them under Section 647(d) of the California penal code, which prohibits loitering in or around a public restroom for the purpose of engaging in a lewd or lascivious act. But famed gay civil rights attorney Bruce Nickerson says the arrests are invalid because the state Supreme Court ruled in 1979 that lewd conduct is only a crime if it's performed with the intent to offend. The Police Department has been using undercover officers to "honey-trap" the men, which Mr. Nickerson says generates the "reasonable belief that the decoy is interested and not likely to be offended." Mr. Nickerson also says police haven't used decoys to arrest anyone for male-female sexual encounters, meaning the arrests violate the 14th Amendment's guarantee of equal protection. "It is the gay equivalent of stopping Jim Crow laws," he told KPIX-TV. San Jose Inside has more on Mr. Nickerson's history of winning similar cases, as well as additional detail on the nature of the stings. "A lot of gay rights attorneys turn up their noses at what I do," Mr. Nickerson said. "But there's a reason I do these kinds of cases. Because worse than being fired because you're gay is to be arrested for being gay. The most fundamental right is to be free of imprisonment." SEAWORLD PARKS: Court Narrows Claims in Anderson and Conway Suit ---------------------------------------------------------------- District Judge Jeffrey S. White of the United States District Court for the Northern District of California granted in part SeaWorld Parks and Entertainment, Inc.'s motion to dismiss Plaintiffs' first amended complaint, and granted Plaintiffs Marc Anderson's and Ellexa Conway's motion for leave to file a second amended class action complaint in the case captioned, MARC ANDERSON, et al., Plaintiffs, v. SEAWORLD PARKS AND ENTERTAINMENT, INC., Defendant, Case No. . 15-CV-02172-JSW (N.D. Cal.). The case is one of four putative class actions that were filed against SeaWorld regarding alleged misrepresentations about its treatment of orcas, i.e. killer whales, at its various theme parks. Plaintiffs originally filed their complaint in the Superior Court of the State of California for the City and County of San Francisco. SeaWorld then removed the action to the Court and asserted the Court had jurisdiction under the Class Action Fairness Act (CAFA). SeaWorld filed its motion to dismiss the FAC. In their proposed Second Amended Complaint, Plaintiffs allege that SeaWorld also engaged in this marketing campaign to induce merchandise purchases. Plaintiffs allege that SeaWorld represents that: (1) orca's lifespans in captivity are equivalent to life spans in the wild; (2) collapsed dorsal fins are normal; (3) it does not separate orca calves from mothers; and (4) captivity does not harm orcas. Plaintiffs allege that each of these statements are false or misleading and that they were "exposed" to these representations in a variety of ways. Plaintiffs assert claims for: (1) violations of California's false advertising law, Business and Professions Code sections 17500, et seq. (the "FAL claim"); (2) violations of California's unfair competition law, Business and Professions Code sections 17200, et seq. (the "UCL claim"); and (3) violation of California's Consumer Legal Remedies Act, California Civil Code section 1750, et seq. (the "CLRA claim"). In the motion to dismiss, SeaWorld argues the Court should dismiss the FAC, because: (1) Plaintiffs lack standing to seek injunctive relief under Article III of the United States Constitution; (2) Plaintiffs fail to comply with the requirements of Rule 9(b); (3) Plaintiffs fail to allege economic injury or reliance and, thus, fail to show they have statutory standing to seek relief; (4) tickets to SeaWorld are neither a good nor a service under the CLRA; and (5) Plaintiffs have not complied with the pre-suit notice requirements under the CLRA. In his Memorandum Order dated August 1, 2016 available at https://is.gd/wZzjxa from Leagle.com, Judge White denied in part as to Ms. Nelson's and Ms. Morizur's finding that they have standing to seek injunctive relief on behalf of the class concluding that the three Plaintiffs have sufficiently alleged that she has standing to pursue the UCL and FAL claims based on that representation and granted in part as to Ms. Conway because she failed to allege that she has statutory standing to pursue the UCL and FAL claims. The Court directed the Plaintiffs to file an amended complaint by no later than August 22, 2016. In addition, the parties shall appear for an initial case management conference on October 7, 2016. The parties shall file a joint case management conference statement on September 30, 2016. Marc Anderson and Ellexa Conway are represented by Christine Saunders Haskett, Esq. -- chaskett@cov.com -- Lindsey Catherine Barnhart, Esq. -- lbarnhart@cov.com -- Tracy Olivia Zinsou, Esq. - - tzinsou@cov.com -- and Udit Sood, Esq. -- usood@cov.com -- COVINGTON BURLING LLP SeaWorld Parks and Entertainment, Inc. is represented by John Morgan Simpson, Esq. -- john.simpson@nortonrosefulbright.com -- Michelle C. Pardo, Esq. -- michelle.pardo@nortonrosefulbright.com -- Rebecca E. Bazan, Esq. -- rebecca.bazan@nortonrosefulbright.com -- and Rebecca E. Bazan, Esq. -- rebecca.bazan@nortonrosefulbright.com -- NORTON ROSE FULBRIGHT US LLP; Lawrence Yale Iser, Esq. -- liser@kwikalaw.com -- Gregory Steven Gabriel, Esq. -- ggabriel@kwikalaw.com -- and Kristen Louise Spanier, Esq. -- kspanier@kwikalaw.com -- KINSELLA WEITZMAN ISER KUMP & ALDISERT LLP SERVIS ONE: Court Trims Claims in "McCamis" Class Suit ------------------------------------------------------ District Judge James S. Moody Jr. of the United States District Court for the Middle District of Florida granted in part and denied in part the Defendant's motion to dismiss in the case captioned, RONNIE J. McCAMIS, Plaintiff, v. SERVIS ONE, INC., d/b/a BSI FINANCIAL SERVICES, INCORPORATED, Defendant, Case No. 8:16-CV-1130-T-30AEP (M.D. Fla.). The class action relates to Defendant's alleged practice of attempting to collect a discharged debt directly from a debtor after Defendant was informed that the debt was discharged in bankruptcy. Specifically, Plaintiff Ronnie J. McCamis alleges that in February 2015, he filed a Chapter 7 bankruptcy petition in the United States Bankruptcy Court for the Middle District of Florida. Plaintiff listed in his bankruptcy petition a mortgage on real property, provided notice in his bankruptcy case that he intended to surrender the property, and vacated the property. Plaintiff received a discharge in bankruptcy that extinguished his personal liability on the mortgage debt in May 2015. Defendant Servis One, Inc. d/b/a BSI Financial Services, Inc. (BSI) began servicing the mortgage after it was discharged. Plaintiff was represented by counsel in the bankruptcy case and was also represented by the law firm of Centrone & Shrader, P.A. with respect to BSI's continued collection efforts post- bankruptcy. Plaintiff notified BSI of his bankruptcy discharge and representation by counsel. Plaintiff alleges that despite BSI's actual knowledge that Plaintiff was represented by counsel and that his personal liability on the mortgage debt had been discharged in bankruptcy, BSI continued to contact Plaintiff directly in an attempt to collect the mortgage debt from him. Plaintiff asserts, on behalf of himself and the class, the following claims: (1) violation of the Florida Consumer Collection Practices Act (FCCPA); (2) violation of the Fair Debt Collection Practices Act (FDCPA); and (3) relief under 11 U.S.C. Sec. 105(a) for BSI's violation of the discharge injunction. BSI moves to dismiss the complaint for lack of standing and for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. BSI also argues that the Court does not have jurisdiction to award any relief to Plaintiff related to BSI's alleged violation of the discharge injunction. In his Order dated July 29, 2016 available at https://is.gd/f9FAoB from Leagle.com, Judge Moody concluded that Plaintiff has standing because Plaintiff alleges a concrete and particularized injury in fact. The Court granted the motion with respect to the November 4, 2015, and November 23, 2015 notices regarding hazard insurance because there is no implicit demand for payment. Ronnie J. McCamis is represented by Brian Lucas Shrader, Esq. -- bshrader@centroneshrader.com -- and Gus M. Centrone, Esq. -- gcentrone@centroneshrader.com -- CENTRONE & SHRADER, PLLC; and Katherine Earle Yanes, Esq. -- kyanes@kmf-law.com -- KYNES, MARKMAN & FELMAN, PA Servis One, Inc. is represented by James Kirby McDonough, Esq. -- kirby.mcdonough@quarles.com -- Steven Douglas Knox, Esq. -- douglas.knox@quarles.com -- and Zachary Foster, Esq. -- zachary.foster@quarles.com -- QUARLES & BRADY, LLP SHARKNINJA OPERATING: "Rosenthal" Dismissed with Leave to Amend --------------------------------------------------------------- District Judge Anne E. Thompson of the United States District Court for the District of New Jersey granted Defendant's motion to dismiss in the case captioned, MORDECHAI ROSENTHAL, on behalf of himself and all others similarly situated, Plaintiff, v. SHARKNINJA OPERATING LLC, Defendant, Case No. 16-1048 (D.N.J.). Plaintiff Mordechai Rosenthal (Plaintiff) purchased one of SharkNinja Operating LLC's (Defendant) vacuums from a Walmart store located in Howell, New Jersey. Plaintiff purchased the vacuum in part due to Defendant's pervasive advertising of the vacuum as a quality and reliable product. The vacuum came with a five-year limited warranty. Plaintiff alleges that Defendant was aware of this vacuum's electrical defects and tendency to malfunction but failed to disclose these facts to Plaintiff and other vacuum purchasers. Consequently, on February 24, 2016, Plaintiff filed a class action complaint against Defendant, claiming that Defendant violated the New Jersey Consumer Fraud Act (CFA). Defendant moves to dismiss the complaint on the basis of Federal Rules of Civil Procedure 9(b) and 12(b)(6). Defendant argues that the complaint should be dismissed because Plaintiff's claim under the Consumer Fraud Act (CFA) is subsumed by New Jersey's Product Liability Act (PLA). In the alternative, Defendant asserts that Plaintiff fails to plead the elements of a CFA claim. In her Opinion dated August 9, 2016 available at https://is.gd/JPzrqL from Leagle.com, Judge Thompson found that the Plaintiff has not adequately pled an ascertainable loss and that the facts in the complaint are not sufficient to show that Plaintiff has a plausible claim for relief. Plaintiff is granted leave to file an amended complaint within 30 days. Mordechai Rosenthal is represented by James C. Shah, Esq. -- jshah@sfmslaw.com -- SHEPHERD, FINKELMAN, MILLER & SHAH, LLP Sharkninja Operating LLC is represented by Lorna A. Dotro, Esq. -- ldotro@coughlinduffy.com -- COUGHLIN DUFFY LLP SHELBY COUNTY: Court Narrows Claims in Suit v. School Board ----------------------------------------------------------- District Judge Virginia Emerson Hopkins of the United States District Court for the Northern District of Alabama granted in part a motion for summary judgment with respect to Kristin Hurt's claims and denied the motion with respect to all other plaintiffs in the case captioned, Kristin Hurt et al., Plaintiffs, v. Shelby County Board of Education, et al., Defendants, Case No. 2:13-CV- 230-VEH (N.D Ala.). The case arises from Daniel Acker, Jr.'s horrific 25-year practice of exploiting his position as an elementary school teacher to convert the Shelby County school system into his personal sexual hunting ground. Plaintiffs Kristin Hurt (Hurt) and six Jane Does, named in the caption Jane Doe #1 - Jane Doe #6 (Jane Does), alleged sex discrimination and conscience-shocking conduct in violation of the Constitution of the United States, the failure to prevent the same, sex discrimination in violation of federal statutes, and tortious conduct under Alabama law. The Plaintiffs have named as defendants the Shelby County Board of Education (the Board), Lee Doebler, Steve Martin, and Dan Acker. Doebler and Martin are named in both their individual and official capacities as members of the Shelby County Board of Education. Doebler, Martin, and the School Board (collectively, Defendants). The initial complaint in the case was filed on February 1, 2013. An amended complaint was filed on February 8, 2013, seeking to use the class action mechanism. Acker answered on March 7, 2013, and the other defendants answered on March 27, 2013. Plaintiffs moved to certify a class under Rule 23(b)(3) which was denied on August 21, 2014. A second amended complaint adding Jane Does #5 and #6 as plaintiffs was filed on December 15, 2014. On January 11, 2016, the Defendants moved to dismiss Jane Doe # 5 for lack of prosecution. The same day, all defendants except Acker moved for summary judgment. In her Memorandum Opinion dated July 27, 2016 available at https://is.gd/TJCn1E from Leagle.com, Judge Hopkins granted the motion to dismiss as to Counts I, II-A, II-B, IV, V and VI because the parties have agreed that loss of consortium is a measure of damages and not a claim; granted as to all of Kristin Hurt's other claims; and denied as to Count I, the Title IX claim because Hurt's allegations are sufficient to allow a jury to find that the School Board had actual notice of the substantial risk of sexual harassment. Kristin Hurt, et al. are represented by Daniel E. Arciniegas, Esq. -- dea@wigginschilds.com -- Jon C. Goldfarb, Esq. -- jgoldfarb@wigginschilds.com -- and L. William Smith, Esq. -- wsmith@wigginschilds.com -- WIGGINS CHILD PANTAZIS FISHER & GOLDFARB Shelby County Board of Education, et al. are represented by Donald B. Sweeney, Esq.-- dsweeney@bradley.com -- Anne R. Yuengert, Esq. -- ayuengert@bradley.com -- BRADLEY ARANT BOULT CUMMINGS LLP Dan Acker is represented by Robert M. Ronnlund, Esq. -- Ronnlund@sssandf.com -- SCOTT SULLIVAN STREETMAN & FOX PC SIRIUSXM: Settles Robo-Dialing Class Action for $35 Million ----------------------------------------------------------- Andrew Flanagan, writing for Billboard, reports that a settlement between SiriusXM and Francis W. Hooker, Jr., who brought suit against the company in 2012, has been submitted to Arenda L. Wright Allen, the Eastern District of Virginia judge appointed to the case. If approved, SiriusXM would establish a $35 million settlement fund from which "notice, administrative costs, service awards, and attorneys fees, costs, and other expenses" would be drawn by Hooker and those appointed to oversee its disbursement among those eligible to participate in the settlement. Those eligible must have: purchased, before April 5, 2016, a vehicle which came with a SiriusXM trial; received a call from SiriusXM on their cell or wireless phone between Feb. 15, 2008 and July 5, 2016; and never paid for the radio service prior to July 5, 2016. The suit concerned alleged "robo-dialing" that SiriusXM hired a telemarketing firm to try and convince those using its service under a trial period to become subscribers by cold-calling them. A car purchased by Mr. Hooker in 2012 came with a free three-month trial subscription to the satellite radio service, after which he began receiving calls on his cell phone in an attempt to make him a full-time subscriber. Mr. Hooker's initial complaint says that SiriusXM's telemarketing violated the Telephone Consumer Protection Act of 1991, which Mr. Hooker wrote in 2012 "prohibits the use of autodialers or artificial or prerecorded voices to make any non-emergency call to a cellular or wireless phone number in the absence of prior express consent of the called party." SMARTE CARTE: Court Dismisses "McCollough" Privacy Complaint ------------------------------------------------------------ District Judge Sharon Johnson Coleman of the United States District Court for the Northern District of California granted Smarte Carte, Inc.'s motion to dismiss in the case captioned, ADINA McCOLLOUGH, individually and on behalf of all others similarly situated, Plaintiff, v. SMARTE CARTE, INC., Defendant, Case No. 16 C 03777 (N.D. Cal.) Adina McCollough filed a three-count Complaint for damages, injunctive relief, and unjust enrichment stemming from violations of the Illinois Biometric Information Privacy Act (BIPA). McCollough alleges that she used a Smarte Carte locker at Union Station in Chicago, Illinois, five times in 2015. The Complaint alleges that Smarte Carte retained McCollough's fingerprint biometric information without written consent. Smarte Carte moves to dismiss for lack of jurisdiction and failure to state a claim because McCollough does not allege that she suffered any injury to satisfy Article III standing. Smarte Carte also argues that McCollough lacks statutory standing to bring the claim because she is not an "aggrieved" individual within the meaning of BIPA. In her Memorandum Opinion and Order dated August 1, 2016 available at https://is.gd/KQQzuu from Leagle.com, Judge Coleman found that even if a state court would find McCollough to be an aggrieved person under BIPA a state statute cannot confer federal constitutional standing. Adina McCollough is represented by: Ilan Chorowsky, Esq. Mark Anthony Bulgarelli, Esq. PROGRESSIVE LAW GROUP LLC 140 S. Dearborn, Suite 315 Chicago, IL 60603 Tel: (312)787-2717 Smarte Carte, Inc. is represented by Joseph A. Strubbe, Esq. -- jstrubbe@vedderprice.com -- and Frederic T. Knape, Esq. -- fknape@vedderprice.com -- VEDDER PRICE P.C. SPECIALIZED LOAN: Court Narrows Claims in "Quinn" Amended Suit -------------------------------------------------------------- District Judge Elaine E. Bucklo of the United States District Court for the Northern District of Illinois granted in part Specialized Loan Servicing, LLC's (SLS) motion to dismiss and denied motion to strike in the case captioned, THOMAS QUINN and THERESA QUINN, individually and on behalf of a class of similarly situated persons, Plaintiffs, v. SPECIALIZED LOAN SERVICING, LLC, Defendant, Case No. 15-3799 (N.D. Ill.). Plaintiffs Thomas and Theresa Quinn (the Quinns) have brought this suit, individually and on behalf of a purported class, against Specialized Loan Servicing, LLC (SLS) for violations of the Fair Debt Collection Practices Act (FDCPA) and the Illinois Consumer Fraud and Deceptive Practices Act (ICFA). In November 2008, the Quinns obtained a loan from Cherry Creek Mortgage Company for the purchase of their home. After experiencing a series of misfortunes, they defaulted on their mortgage payments. The loan was subsequently transferred to Bank of America (BofA), and the Quinns retained The Residential Litigation Group (RLG) to negotiate the loan dispute with BofA. In July 2012, BofA filed a foreclosure action against the Quinns. The Quinns asserts several causes of action under the FDCPA, some individually, and some on behalf of a proposed class. Count I is a class claim alleging that SLS violated FDCPA Sec. 1692c(a)(2) by communicating with the Quinns directly despite its awareness that they were represented by counsel; Count II is a class claim alleging that SLS violated FDCPA Sec. 1692e by using false, deceptive, or misleading representations in attempting to collect a debt; Count III asserts an individual claim alleging that SLS violated FDCPA Sec. 1692d by engaging in harassing, oppressive, or abusive conduct in attempting to collect a debt. Based on essentially the same conduct as that alleged in Counts I-III, the Quinns assert claims under the ICFA, both on behalf of the class (Count IV) and individually (Count V). SLS moved to dismiss all of the claims, and has also moved to strike the class action allegations from Counts I and IV. SLS argues that the Quinns have failed to allege that it had actual knowledge that they were represented by counsel. SLS contends that Count II fails because: (1) the Quinns have failed to allege that they suffered an injury in fact as a result of the Sec. 1692e violations and therefore lack standing to bring the claim; (2) the inspectors' communications were not made "in connection with the collection of any debt"; and (3) the inspectors' communications were not materially misleading. In his Memorandum Opinion and Order dated August 11, 2016 available at https://is.gd/35tWP4 from Leagle.com, Judge Bucklo denied motion to dismiss as to Count I and Count III construing the allegations in the complaint as true and most favorable to the Quinns, Count II because the challenges to the truth of the complaint's allegations and are inappropriate at the motion-to- dismiss stage. Count IV and V are dismissed because the Quinns cite no authority for the proposition that the pecuniary harm requirement can be satisfied by seeking attorney's fees in the same suit in which the ICFA claim is alleged. Thomas Quinn and Theresa Quinn are represented by Lloyd J. Brooks, Esq., CONSUMER LEGAL GROUP, P.C. They are also represented by: Al Hofeld, III, Esq. Hanan Erikat Van Dril, Esq. LAW OFFICES OF AL HOFELD, JR., LLC 1525 E. 53rd Street, Suite 832 Chicago, IL 60615 Tel:(773)241-5844 Specialized Loan Servicing LLC is represented by Gregg M. Barbakoff, Esq. -- gbarbakoff@mauricewutscher.com -- MAURICE WUTSCHER LLP SPROUTS FARMERS: Motion to Remand Under Consideration ----------------------------------------------------- Sprouts Farmers Market, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 4, 2016, for the quarterly period ended July 3, 2016, that the plaintiffs' motion to remand a class action case to state court is currently under consideration. On March 4, 2016, a complaint was filed in the Superior Court for the State of Arizona against the Company and certain of its directors and officers on behalf of a purported class of purchasers of shares of the Company's common stock in the Company's underwritten secondary public offering which closed on March 10, 2015 (the "March 2015 Offering"). The complaint purports to state claims under Sections 11, 12 and 15 of the Securities Act of 1933, as amended, based on an alleged failure by the Company to disclose adequate information about produce price deflation in the March 2015 Offering documents. The complaint seeks damages on behalf of the purported class in an unspecified amount, rescission, and an award of reasonable costs and attorneys' fees. On March 24, 2016, the Company removed the action to federal court in the District of Arizona. On April 18, 2016, the plaintiffs filed a motion to remand the case to state court, and that motion is currently under consideration. The Company intends to defend this case vigorously, but it is not possible at this time to reasonably estimate the outcome of, or any potential liability from, the case. SPROUTS FARMERS: 4 "Phishing" Scam Actions Stayed ------------------------------------------------- Sprouts Farmers Market, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 4, 2016, for the quarterly period ended July 3, 2016, that all four "phishing" scam actions are currently stayed. In April 2016, four complaints were filed, two in the federal courts of California, one in the Superior Court of California and one in the federal court in the District of Colorado, each on behalf of a purported class of current and former Company team members whose personally identifiable information ("PII") was inadvertently disclosed to an unauthorized third party that perpetrated an email "phishing" scam against a Company team member. The complaints allege the Company failed to properly safeguard the PII in accordance with applicable law. The complaints seek damages on behalf of the purported class in unspecified amounts, attorneys' fees and litigation expenses. All four cases are currently stayed pending a ruling on a motion filed in June 2016 before the Judicial Panel on Multidistrict Litigation to transfer and consolidate all of the cases to the federal court in the District of Arizona. The Company intends to defend these cases vigorously, but it is not possible at this time to reasonably estimate the outcome of, or any potential liability from, the cases. SQUARE INC: Levin Appeals Court's Order Compelling Arbitration -------------------------------------------------------------- Square, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 4, 2016, for the quarterly period ended June 30, 2016, that Jeffry Levin filed a Notice of Appeal of the Court's order compelling arbitration. The Company is involved in a class action lawsuit concerning independent contractors in connection with the Company's Caviar business. On March 19, 2015, Jeffry Levin, on behalf of a putative nationwide class, filed a lawsuit in the Northern District of California against the Company's wholly owned subsidiary, Caviar, Inc., which, as amended, alleges that Caviar misclassified Mr. Levin and other similarly situated couriers as independent contractors and, in doing so, violated various provisions of the California Labor Code and California Business and Professions Code by requiring them to pay various business expenses that should have been borne by Caviar. The Court compelled arbitration of Mr. Levin's individual claims on November 16, 2015 and dismissed the lawsuit in its entirety with prejudice on May 2, 2016. On June 1, 2016, Mr. Levin filed a Notice of Appeal of the Court's order compelling arbitration. Mr. Levin also sought an award of penalties pursuant to the Labor Code Private Attorneys General Act of 2004 (PAGA). The parties stipulated that Mr. Levin would no longer pursue this PAGA claim, and this claim is instead being pursued by a different courier. SUNTRUST BANKS: Non-Fiduciary Defendants Seek Summary Judgment -------------------------------------------------------------- SunTrust Banks, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 4, 2016, for the quarterly period ended June 30, 2016, that certain non-fiduciary defendants in the so-called Company Stock Class Action have filed a motion for summary judgment as it relates to them. Beginning in July 2008, the Company and certain officers, directors, and employees of the Company were named in a putative class action alleging that they breached their fiduciary duties under ERISA by offering the Company's common stock as an investment option in the SunTrust Banks, Inc. 401(k) Plan (the "Plan"). The plaintiffs purport to represent all current and former Plan participants who held the Company stock in their Plan accounts from May 15, 2007 to March 30, 2011 and seek to recover alleged losses these participants supposedly incurred as a result of their investment in Company stock. This case was originally filed in the U.S. District Court for the Southern District of Florida but was transferred to the U.S. District Court for the Northern District of Georgia, Atlanta Division, (the "District Court") in November 2008. On October 26, 2009, an amended complaint was filed. On December 9, 2009, defendants filed a motion to dismiss the amended complaint. On October 25, 2010, the District Court granted in part and denied in part defendants' motion to dismiss the amended complaint. On April 14, 2011, the U.S. Court of Appeals for the Eleventh Circuit ("the Circuit Court") granted defendants and plaintiffs permission to pursue interlocutory review in separate appeals. The Circuit Court subsequently stayed these appeals pending decision of a separate appeal involving The Home Depot in which substantially similar issues are presented. On May 8, 2012, the Circuit Court decided that appeal in favor of The Home Depot. On March 5, 2013, the Circuit Court issued an order remanding the case to the District Court for further proceedings in light of its decision in The Home Depot case. On September 26, 2013, the District Court granted the defendants' motion to dismiss plaintiffs' claims. Plaintiffs filed an appeal of this decision in the Circuit Court. Subsequent to the filing of this appeal, the U.S. Supreme Court decided Fifth Third Bancorp v. Dudenhoeffer, which held that employee stock ownership plan fiduciaries receive no presumption of prudence with respect to employer stock plans. The Circuit Court remanded the case back to the District Court for further proceedings in light of Dudenhoeffer. On June 18, 2015, the Court entered an order granting in part and denying in part the Company's motion to dismiss. The discovery process has begun. On August 1, 2016, certain non-fiduciary defendants filed a motion for summary judgment as it relates to them. SUNTRUST BANKS: Discovery Ongoing in Mutual Funds Class Actions --------------------------------------------------------------- SunTrust Banks, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 4, 2016, for the quarterly period ended June 30, 2016, that discovery is ongoing in the consolidated mutual funds class action. On March 11, 2011, the Company and certain officers, directors, and employees of the Company were named in a putative class action alleging that they breached their fiduciary duties under ERISA by offering certain STI Classic Mutual Funds as investment options in the Plan. The plaintiffs purport to represent all current and former Plan participants who held the STI Classic Mutual Funds in their Plan accounts from April 2002 through December 2010 and seek to recover alleged losses these Plan participants supposedly incurred as a result of their investment in the STI Classic Mutual Funds. This action is pending in the U.S. District Court for the Northern District of Georgia, Atlanta Division (the "District Court"). On June 6, 2011, plaintiffs filed an amended complaint, and, on June 20, 2011, defendants filed a motion to dismiss the amended complaint. On March 12, 2012, the Court granted in part and denied in part the motion to dismiss. The Company filed a subsequent motion to dismiss the remainder of the case on the ground that the Court lacked subject matter jurisdiction over the remaining claims. On October 30, 2012, the Court dismissed all claims in this action. Immediately thereafter, plaintiffs' counsel initiated a substantially similar lawsuit against the Company naming two new plaintiffs and also filed an appeal of the dismissal with the U.S. Court of Appeals for the Eleventh Circuit. The Company filed a motion to dismiss in the new action and this motion was granted. On February 26, 2014, the U.S. Court of Appeals for the Eleventh Circuit upheld the District Court's dismissal. On March 18, 2014, the plaintiffs' counsel filed a motion for reconsideration with the Eleventh Circuit. On August 26, 2014, plaintiffs in the original action filed a Motion for Consolidation of Appeals requesting that the Court consider this appeal jointly with the appeal in the second action. This motion was granted on October 9, 2014 and plaintiffs filed their consolidated appeal on December 16, 2014. On June 27, 2014, the Company and certain current and former officers, directors, and employees of the Company were named in another putative class action alleging breach of fiduciary duties associated with the inclusion of STI Classic Mutual Funds as investment options in the Plan. This case, Brown, et al. v. SunTrust Banks, Inc., et al., was filed in the U.S. District Court for the District of Columbia. On September 3, 2014, the U.S. District Court for the District of Columbia issued an order transferring the case to the U.S. District Court for the Northern District of Georgia. On November 12, 2014, the Court granted plaintiffs' motion to stay this case until the U.S. Supreme Court issued a decision in Tibble v. Eidson International. On May 18, 2015, the U.S. Supreme Court decided Tibble and held that plan fiduciaries have a duty, separate and apart from investment selection, to monitor and remove imprudent investments. After Tibble, the cases pending on appeal were remanded to the District Court. On March 25, 2016, a consolidated amended complaint was filed, consolidating all of these pending actions into one case. The Company filed an answer to the consolidated amended complaint on June 6, 2016 and discovery is ongoing. SUNTRUST BANKS: Motion to Dismiss "Felix" Suit Still Pending ------------------------------------------------------------ SunTrust Banks, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 4, 2016, for the quarterly period ended June 30, 2016, that STM's motion to dismiss the case, Felix v. SunTrust Mortgage, Inc., remains pending. This putative class action was filed against STM on April 4, 2016. Plaintiff alleges that STM breaches its contract with borrowers when it collects interest on FHA loans at repayment because STM fails to use an approved FHA notice form. Plaintiff also alleges that STM violates the Georgia usury statute by collecting such interest. Plaintiff attempts to bring the breach of contract claim on behalf of all borrowers and the usury claim on behalf of Georgia borrowers. STM filed a motion to dismiss on May 26, 2016, which remains pending. No further updates were provided in the Company's SEC report. SYNCHRONY FINANCIAL: Court Grants Bid to Dismiss "Kincaid" Suit --------------------------------------------------------------- District Judge Sharon Johnson Coleman of the United States District Court for the Northern District of Illinois Eastern Division granted defendant's first motion to dismiss and mooted the second motion to dismiss in the case captioned, MICHAEL W. KINCAID, DDS, INC. d/b/a RIVERSIDE FAMILY DENTLAL GROUP, individually and on behalf of all others similarly situated, Plaintiff, v. SYNCHRONY FINANCIAL, Defendant., Case No. 16-CV-796. (N.D. Ill.). Synchrony Financial (Synchrony) offers consumers a credit card called CareCredit that is designed to be used for charging health care expenses. Synchrony markets this product by getting healthcare providers to recommend CareCredit to their patients and as part of its marketing strategy it sends those providers fax advertisements. In an attempt to get Michael W. Kincaid, DDS, Inc., d/b/a Riverside Family Dental Group (Kincaid) to encourage the patients of his dental practice to apply for CareCredit, Synchrony sent Kincaid six fax advertisements throughout June, July, and August 2015. Kincaid did not consent to receive fax advertisements from Synchrony and the advertisements did not contain a notice informing him how to opt-out of receiving additional faxes Plaintiff filed a putative class action against (Synchrony) alleging Synchrony violated the Telephone Consumer Protection Act (TCPA) by sending unsolicited fax advertisements. In her Order Memorandum Opinion and Order dated August 11, 2016 available at https://is.gd/k33OPz from Leagle.com, Judge Coleman concluded that Kincaid has failed to meet his burden of showing jurisdiction over Synchrony. Given that the events giving rise to this lawsuit occurred in 2015, and in light of the TCPA's generous four-year statute of limitations, the Court observes that there is no need to transfer rather than dismiss the case in the interest of justice. Kincaid's motion to dismiss for failure to state a claim is stricken as moot. Michael W. Kincaid, DDS, Inc., Plaintiff is represented by Brian Kevin Murphy, Esq. -- murphy@mmmb.com -- MURRAY MURPHY MOUL + BASIL LLP Lauren E. Snyder, Esq. -- lsnyder@hwglaw.com -- ATTORNEY AT LAW -- Matthew Mccue, Esq. -- jason.mccue@mccue-law.com -- LAW OFFICE OF MATTHEW MCCUE SYNGENTA CORP: "Claas" Files Suit Over GMO Corn Trait ----------------------------------------------------- Howard Claas, Plaintiff, v. Syngenta Corporation, Syngenta Crop Protection, LLC, Syngenta Seeds, Inc., Defendants, Case No. DC-16- 09561, (W.D. Mo., August 9, 2016), seeks preliminary and permanent injunctions providing that Syngenta shall be enjoined from selling, marketing, distributing, or otherwise disseminating Viptera corn and Duracade corn, in addition to any other product featuring MIR162. Syngenta released a genetically engineered corn trait, MIR162, into the U.S. market. MIR162 corn has not been approved in China. It stopped importing U.S. corn when it detected traces of MIR162 in U.S. corn shipments. Claas is engaged in the business of planting, growing, harvesting, and selling corn and lost substantially by Syngenta's release of Viptera corn into the U.S. corn and corn seed supply, which has affected the export of U.S. corn to China. Plaintiff is represented by: Thomas V. Bender, Esq. WALTERS BENDER STROHBEHN & VAUGHAN, P.C. 2500 City Center Square 1100 Main Street Kansas City, MO 64105 Tel: (816) 421-6620 Fax: (816) 421-4747 Email: tbender@wbsvlaw.com - and - Robert A. Horn, Esq. Joseph A. Kronawitter, Esq. HORN AYLWARD & BANDY, LLC 2600 Grand Boulevard, Suite 1100 Kansas City, MO 64108 Tel: (816) 421-0700 Fax: (816) 421-0899 Email: bhorn@hab-law.com jkronawitter@hab-law.com - and - Paul D. Lundberg, Esq. LUNDBERG LAW FIRM, P.L.C. 600 Fourth St., Suite 906 Sioux City, IA 51101 Tel: (712) 234-3030 Fax: (712) 234-3034 Email: paul@lundberglawfirm.com - and - Charles T. Patterson, Esq. PATTERSON & PRAHL, LLP. 25043 Little Water Ln. P.O. Box 767 Custer, SD 57730 Tel: 605-673-5223 Email: tpatterson@patterprahl.com TERE RESTAURANT: "Sandoval" Suit Seeks OT, Spread-of-Hours Pay -------------------------------------------------------------- Rigoberto Ortiz Sandoval, Jaime Hernandez Perez and Patricia Aldana, individually and on behalf of others similarly situated, Plaintiffs, v. Tere Restaurant Corp. (d/b/a Tehuitzingo Deli), Miguel Fuentes, Celsa Matilda Lopez (a/k/a Teresa), Miguel Fuentes Jr. and Abraham Fuentes Lopez, Defendants, Case No. 1:16-cv-06306 (S.D. N.Y., August 9, 2016), seeks unpaid minimum and overtime wages, spread of hours, overtime wages, applicable liquidated damages, interest, attorneys' fees and costs pursuant to the Fair Labor Standards Act of 1938 and New York Laws. Tere Restaurant Corp. operates Tehuitzingo Deli and is owned by Miguel Fuentes, Celsa Matilda Lopez, Miguel Fuentes Jr. and Abraham Fuentes Lopez. Plaintiffs were employed as cook, cashier and ostensibly employed as delivery worker. Plaintiff is represented by: Michael A. 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 TBC RETAIL: Court Sends Cole Claims to Arbitration -------------------------------------------------- District Judge David C. Norton of the United States District Court for the District of South Carolina granted in part TBC Retail Group, Inc.'s (defendant) motion to compel arbitration for plaintiff Nicholas Cole, motion to compel arbitration for all opt- in plaintiffs who signed the mutual arbitration agreement, motion for summary judgment and plaintiffs' motion for joinder of additional parties in the case captioned, ANDREW GORDON, TAVIS McNEIL, DONALD WRIGHTON, NICHOLAS COLE, JACOB GRISSON, AND DAWN DEWEY, on behalf of themselves and others similarly situated, Plaintiffs, v. TBC RETAIL GROUP, INC. d/b/a TIRE KINGDOM, Defendant, Civil Action No. 2:14-CV-03365-DCN (D.S.C). On August 20, 2014, Cole joined plaintiffs Andrew Gordon, Tavis McNeil, Donald Wrighton, Jacob Grissom, and Dawn Dewey (together with Cole, plaintiffs) in filing the instant action on behalf of themselves and "all other similarly situated employees." Plaintiffs allege that defendant violated the minimum wage and overtime provisions of the Fair Labor Standards Act, 29 U.S.C. Sec. 201, et seq.(FLSA), by utilizing a compensation plan that did not provide plaintiffs one and one-half times their regular rate of pay when they worked more than forty hours in a workweek. On September 30, 2015, the court granted plaintiffs' motion for conditional class certification. As part of that order, the court ordered defendant to provide the names, address, and telephone numbers of all potential opt-in plaintiffs, and authorized plaintiffs to mail a court-approved notice to all potential opt-in plaintiffs. Defendant filed a motion to compel arbitration against Cole on August 3, 2015, well before the opt-in period began. On March 7, 2016, defendant filed a second motion to compel arbitration against all opt-in plaintiffs who signed the Agreement and asked the court to stay a scheduled hearing on its first motion to compel arbitration, until both matters could be heard together. Defendant then filed a motion for summary judgment on April 22, 2016. Plaintiffs responded to the second motion to compel arbitration on April 29, 2016. Plaintiffs then filed a motion for the joinder of additional parties on May 6, 2016. In his Order dated August 11, 2016 available at https://is.gd/RkBHXA from Leagle.com, Judge Norton denied defendant's motion to compel arbitration for Cole and granted in part defendant's motion to compel arbitration for all other opt-in plaintiffs who signed the Agreement. The court granted defendant's motion for summary judgment with respect to (1) named plaintiffs Donald Wrighton and Jacob Grissom, who failed to file a consent form, (2) all opt-in plaintiffs whose consent was filed over three years after receiving their final paycheck, and (3) all individuals who cannot be identified or have failed to demonstrate that they were actually employed as mechanics at a Tire Kingdom during the class period. Andrew Gordon, et al. are represented by William Clark Tucker, Esq. -- jtucker@tlgattorneys.com -- TUCKER LAW FIRM TBC Retail Group Inc. is represented by: Kristin Starnes Gray, Esq. Wade Edward Ballard, Esq. Louis Percival Britt, III, Esq. FORDHARRISON Northern Trust 2049 Century Park E Ste 3600 Los Angeles, CA 90067 Tel: (310)282-3815 TIBURON FINANCIAL: "Briles" Settlement Granted Preliminary OK ------------------------------------------------------------- District Judge Laurie Smith Camp of the United States District Court for the District of Nebraska granted parties' joint motion and preliminarily approved the settlement of the case captioned, SHAUNNA BRILES, on behalf of herself and all others similarly situated; Plaintiff, v. TIBURON FINANCIAL, LLC, a Nebraska Limited Liability Company; SIGNATURE PERFORMANCE TIBURON, LLC, a Nebraska Limited Liability Company; JACADA, P.C., LLO, AND a Nebraska Limited Liability Organization; and JAMES A. CADA, an individual; Defendants, Case No. 8:15CV241 (D. Neb.). This class action involves a standardized, debt collection communication known as a "Stipulation." Plaintiff alleged that Defendants violated the Fair Debt Collection Practices Act (FDCPA), and the Nebraska Consumer Protection Act (NCPA), based on their efforts to collect consumer debts by unlawfully simulating legal process, falsely representing the character or legal status of the debt, and circumventing the protections given to consumers. Plaintiff alleged that the Defendants intentionally deceived consumers by sending collection communications (the Stipulations) designed to give consumers the impression that legal process was underway. Defendants deny Plaintiff's allegations; dispute that that they violated the FDCPA or the NCPA; and deny that they deceived consumers by sending the Stipulation. In the motion, parties filed a Joint Motion for Preliminary Approval of Class Action Settlement and seek an Order certifying a settlement class and preliminarily approving the terms of the proposed Class Action settlement between the parties. Under the terms of the proposed Settlement, Settlement Class Members will receive a pro-rata share of the $17,500.00 Settlement Fund. In her Memorandum and Order dated August 1, 2016 available at https://is.gd/Vmzpvg from Leagle.com, Judge Camp found that that all the elements of Rule 23(a) and (b)(3) have been satisfied and certification of the Settlement Class is appropriate. The Court appointed Shaunna Briles, as class representative of the Settlement Class, and Burke Smith, Esq., of the Burke Smith Law firm and Janet R. Varnell, Esq., of the law firm Varnell & Warwick, P.A. as Counsel for the Settlement Class. A Final Settlement Fairness Hearing shall be held on December 5, 2016. Shaunna Briles is represented by Janet R. Varnell, Esq. -- jvarnell@varnellandwarwick.com -- VARNELL, WARWICK LAW FIRM Tiburon Financial, LLC, et al. are represented by Bradley S. Levison, Esq. -- blevison@kdvlaw.com -- and Stefan R. Dandelles, Esq. -- sdandelles@kdvlaw.com -- KAUFMAN, DOLOWICH LAW FIRM; Kathryn E. Jones, Esq., at KUTAK, ROCK LAW FIRM TILE SHOP: Class and Sub-Class Certified in Retirement Fund Case ---------------------------------------------------------------- District Judge Ann D. Montgomery of the United States District Court for the District of Minnesota granted Plaintiffs' motion to certify class, appointed class representatives and class counsel in the case captioned, Beaver County Employees' Retirement Fund; Erie County Employees' Retirement System; and Luc De Wulf, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. Tile Shop Holdings, Inc.; Robert A. Rucker; The Tile Shop, Inc.; Timothy C. Clayton; Peter J. Jacullo, III; JWTS, Inc.; Peter H. Kamin; Todd Krasnow; Adam L. Suttin; William E. Watts; Robert W. Baird & Co. Incorporated; Citigroup Global Markets Inc.; CJS Securities, Inc.; Houlihan Lokey Capital, Inc.; Piper Jaffray & Co.; Sidoti & Company, LLC; Telsey Advisory Group LLC; and Wedbush Securities, Inc., Defendants, Civil No. 14-786 ADM/TNL (D. Minn.) Several Tile Shop shareholders filed putative securities class actions that were later consolidated and transferred to the District of Minnesota, and the Consolidated Amended Complaint (CAC) was filed on May 23, 2014. The CAC asserts five causes of action, three of which arise under the Securities Act of 1933 and the remaining two under the Securities Exchange Act of 1934. On December 12, 2014, the Court heard argument on Defendants motions to dismiss. On March 4, 2015, the Court granted in part and denied in part the motions to dismiss. Plaintiffs' Section 10(b) and Rule 10b-5 claims were allowed to proceed against Tile Shop and Rucker, and control person liability claims under Section 20(a) alleged against Tile Shop, Rucker, and Tile Shop CFO Timothy Clayton also remain in suit. Plaintiffs seek to certify a class of "all persons and entities who purchased or otherwise acquired Tile Shop common stock between August 22, 2012, and January 28, 2014" (the Class). Plaintiffs also seek to certify a subclass of "all persons and entities who purchased or otherwise acquired Tile Shop common stock pursuant and/or traceable to the prospectus and registration statement issued in connection with Tile Shop's public offering of common stock in December 2012" (the Subclass). Defendants raise challenges to the typicality and predominance requirements of Rule 23(a). In her Memorandum Opinion and Order dated July 28, 2016 available at https://is.gd/mZIbDw from Leagle.com, Judge Montgomery found that Plaintiffs have fulfilled their burden of establishing each Rule 23(a) factor and both requirements of Rule 23(b)(3). The Court appointed Beaver County Employees' Retirement Fund, Erie County Employees' Retirement System, and Luc De Wulf as class representatives, Beaver County Employees' Retirement Fund and Erie County Employees' Retirement System as subclass representatives and the law firms of Kessler Topaz Meltzer & Check, LLP, and Robbins Geller Rudman & Dowd LLP as class counsel. Beaver County Employees' Retirement Fund et al. are represented by Bryan L. Bleichner, Esq. -- bbleichner@chestnutcambronne.com -- Jeffrey D. Bores, Esq -- jbores@chestnutcambronne.com -- Karl L. Cambronne, Esq. -- kcambronne@chestnutcambronne.com -- CHESTNUT CAMBRONNE -- Christopher T. Gilroy, Esq. -- cgilroy@rgrdlaw.com -- Francis P. Karam, Esq. -- frank@fkaramlaw.com -- Joseph F. Russello , Esq. -- jrussello@rgrdlaw.com -- Mark Samuel Reich, Esq. -- mreich@rgrdlaw.com -- Samuel H. Rudman, Esq -- SRudman@rgrdlaw.com -- William John Geddish -- wgeddish@rgrdlaw.com -- ROBBINS GELLER RUDMAN & DOWD LLP; Kimberly A. Justice, Esq. -- kjustice@ktmc.com -- Margaret E. Onasch, Esq. -- monasch@ktmc.com -- Matthew L. Mustokoff, Esq. -- mmustokoff@ktmc.com -- Michelle M. Newcomer, Esq. -- mnewcomer@ktmc.com -- Paul A. Breucop, Esq. -- pbreucop@ktmc.com -- Stacey M. Kaplan, Esq. -- skaplan@ktmc.com -- KESSLER TOPAZ MELTZER & CHECK, LLP Tile Shop Holdings, Inc., et al. are represented by Aaron Knoll, Esq -- aaron.knoll@FaegreBD.com -- Justin P. Krypel, Esq. -- Justin.krypel@FaegreBD.com -- Staci L. Perdue, Esq. -- staci.perdue@FaegreBD.com -- Wendy J. Wildung, Esq. -- wendy.wildung@FaegreBD.com -- FAEGRE BAKER DANIELS LLP Peter J. Jacullo, III, et al. are represented by David P. Pearson,Esq.-- dpearson@winthrop.com -- Matthew D. Callanan, Esq. -- mcallanan@winthrop.com -- Matthew C. Robinson, Esq. -- mrobinson@winthrop.com -- WINTHROP & WEINSTINE, PA Robert W. Baird & Co. Incorporated et al, Defendants, represented by Daniel J. Supalla Esq -- dsupalla@briggs.com -- Frank A. Taylor Esq -- ftaylor@briggs.com -- BRIGGS & MORGAN, PA Jed M. Schwartz, Esq. -- jschwartz@milbank.com -- Scott A. Edelman, Esq. -- sedelman@milbank.com -- MILBANK TWEED HADLEY & MCCLOY LLP TIME INC: Appeal from Dismissal of "Coulter-Owens" Suit Underway ---------------------------------------------------------------- Time Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 4, 2016, for the quarterly period ended June 30, 2016, that an appeal from a court order dismissing the complaint by Rose Coulter-Owens remains pending. On October 3, 2012, Susan Fox filed a class action complaint (the "Complaint") against Time Inc. in the United States District Court for the Eastern District of Michigan alleging violations of Michigan's Video Rental Privacy Act ("VRPA") as well as claims for breach of contract and unjust enrichment. The VRPA limits the ability of entities engaged in the business of selling, renting or lending retail books or other written materials from disclosing to third parties certain information about customers' purchase, lease or rental of those materials. The Complaint alleges that Time Inc. violated the VRPA by renting to third parties lists of subscribers to various Time Inc. magazines. The Complaint sought injunctive relief and the greater of statutory damages of $5,000 per class member or actual damages. On December 3, 2012, Time Inc. moved to dismiss the Complaint on the grounds that it failed to state claims for relief and because the named plaintiff lacked standing because she suffered no injury from the alleged conduct. On August 6, 2013, the court granted, in part, and denied, in part, Time Inc.'s motion, dismissing the breach of contract claim but allowing the VRPA and unjust enrichment claims to proceed. On November 11, 2013, Rose Coulter-Owens replaced Susan Fox as the named plaintiff. On March 13, 2015, the plaintiff filed a motion seeking to certify a class consisting of all Michigan residents who between March 31, 2009 and November 15, 2013 purchased a subscription to TIME, Fortune or Real Simple magazines through any website other than Time.com, Fortune.com and RealSimple.com. On July 27, 2015, the court granted plaintiff's motion to certify the class, which the Company estimates to comprise approximately 40,000 consumers. On August 31, 2015, Time Inc. and the plaintiff moved for summary judgment and on October 1, 2015 both parties filed briefs in opposition to their adversaries' motions. On February 16, 2016, the court granted Time Inc.'s motion for summary judgment and dismissed the case. On March 16, 2016, the plaintiff filed a notice with the Circuit Court appealing the District Court's dismissal of plaintiff's claims. On May 26, 2016, Time Inc. filed a motion to dismiss the appeal on the ground that plaintiff lacked standing to pursue her claims. Plaintiff filed her opposition brief on June 23, 2016 and Time Inc. filed its reply brief on July 12, 2016. Time Inc., is one of the world's leading media companies, with a monthly global print audience of over 120 million and more than 150 million monthly visitors to its worldwide digital properties, including over 60 websites. TIME INC: Motion to Dismiss "Perlin" Video Privacy Suit Underway ---------------------------------------------------------------- Time Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 4, 2016, for the quarterly period ended June 30, 2016, that the Company has filed its reply brief related to its motion to dismiss the class action lawsuit by Susan Fox. On February 19, 2016, the same law firm representing Rose Coulter- Owens filed another class action, entitled Perlin v. Time Inc., in the United States District Court for the Eastern District of Michigan alleging violations of the Michigan's Video Rental Privacy Act ("VRPA") as well as a claim for unjust enrichment. This lawsuit was filed on behalf of Michigan residents who purchased subscriptions directly from Time Inc. On May 6, 2016 and May 31, 2016, Time Inc. moved to dismiss the Complaint. Perlin filed an opposition brief on June 27, 2016 and Time Inc. filed its reply brief on July 11, 2016. Time Inc., is one of the world's leading media companies, with a monthly global print audience of over 120 million and more than 150 million monthly visitors to its worldwide digital properties, including over 60 websites. TRANS UNION: Court Grants Class Certification Bid in "Larson" ------------------------------------------------------------- District Judge William H. Orrick of the United States District Court for the Northern District of California granted Plaintiff's motion for class certification in the case captioned, BRIAN DOUGLAS LARSON, Plaintiff, v. TRANS UNION, LLC, Defendant, Case No. 12-CV-05726-WHO.(N.D. Cal.). On June 26, 2015, the court issued an order tentatively granting Larson's motion for class certification but staying the case pending the outcome in Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016). Following the Supreme Court's decision in Spokeo, the parties submitted supplemental briefs on how the decision impacts the tentative class certification ruling. Defendant Trans Union, LLC contends that Larson cannot establish standing under Spokeo, and that even if he could, class certification would still be inappropriate because Spokeo precludes him from establishing ascertainability, predominance, and superiority. The court agrees with Larson that his section 1681g(a) claim is based on something more than a "bare procedural violation" -- such as the "dissemination of an incorrect zip code" -- that cannot "cause harm or present any material risk of harm." To the contrary, his claim is based on the sort of "informational" injury that the Spokeo Court implicitly recognized in citing Public Citizen and Akins, and that a number of other cases, from both before Spokeo and after, have found sufficient to support Article III standing. Further, the court noted that it is not difficult to imagine how the dissemination of the OFAC disclosure could work some concrete harm to consumers. Such harm could take the form of emotional distress, as Larson alleges that he suffered, triggered by the uncertainty as to whether Trans Union was reporting the consumer as a match to an individual on the OFAC database and the perceived inability to dispute the OFAC disclosure. In her Order dated August 11, 2016 available at https://is.gd/8QmyBd from Leagle.com, Judge Orrick held that article III standing in the case, just like Trans Union's alleged liability under section 1681g(a), is predicated on the character of the allegedly misleading information in the credit reports disseminated to Larson and absent class members, not on Larson's or absent class members' subjective interpretation of that information. A case management conference is set for September 13, 2016 at 2:00 p.m. By September 6, 2016, the parties shall file a joint case management statement that includes a proposed schedule for remaining pretrial and trial deadlines. Brian Douglas Larson, Plaintiff, is represented by Andrew J. Ogilvie, Esq. -- andy@aiblawyers.com -- Carol McLean Brewer, Esq. -- carol@aoblawyers.com -- ANDERSON, OGILVIE & BREWER -- David A. Searles, Esq. -- dsearles@consumerlawfirm.com -- Gregory Joseph Gorski, Esq. -- ggorski@consumerlawfirm.com -- John Soumilas, Esq. -- jsoumilas@consumerlawfirm.com -- FRANCIS & MAILMAN Trans Union, LLC, Defendant is represented by Brian C. Frontino -- bfrontino@stroock.com -- Julia B. Strickland, Esq -- jstrickland@stroock.com -- Stephen J. Newman, Esq -- snowman@Stroock.com -- Benjamin Gary Diehl, Esq -- bdiehl@stroock.com -- STROOCK STROOCK LAVAN LLP VALIDITY RESEARCH: Faces TCPA Class Action Over Autodialer ---------------------------------------------------------- Wadi Reformado, writing for Northern California Record, reports that a Los Angeles individual has filed a class-action lawsuit against a data research company alleging it used an autodialer to contact him. Jason Alan filed a complaint on behalf of all others similarly situated on Aug. 3 in the U.S. District Court for the Central District of California against Validity Research Inc. and Does 1 through 10 alleging violation of the Telephone Consumer Protection Act. According to the complaint, the plaintiff alleges that in February, he suffered damages as the result of being contacted on his cellular telephone by the defendant. The plaintiff alleges that he has never provided his information to the defendant. The plaintiff holds Validity Research Inc. and Does 1 through 10 responsible because the defendants allegedly used an artificial or pre-recorded voice to contact plaintiff to solicit its services. The plaintiff requests a trial by jury and seeks $500 in statutory damages for each and every violation, $1,500 in treble damages for each and every violation and any other relief as the court deems just. He is represented by Todd M. Friedman and Adrian R. Bacon of Law Offices of Todd M. Friedman PC in Beverly Hills. U.S. District Court for the Central District of California Case number 2:16-cv-05758-AB-AJW VIVUS INC: Plaintiffs' Appeal Remains Pending --------------------------------------------- Vivus, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 4, 2016, for the quarterly period ended June 30, 2016, that the plaintiffs' appeal of the court ruling granting defendants' motion to dismiss remains pending. On March 27, 2014, Mary Jane and Thomas Jasin, who purport to be purchasers of VIVUS common stock, filed an Amended Complaint in Santa Clara County Superior Court alleging securities fraud against the Company and three of its former officers and directors. In that complaint, captioned Jasin v. VIVUS, Inc., Case No. 114-cv-261427, plaintiffs asserted claims under California's securities and consumer protection securities statutes. Plaintiffs alleged generally that defendants misrepresented the prospects for the Company's success, including with respect to the launch of Qsymia, while purportedly selling VIVUS stock for personal profit. Plaintiffs alleged losses of "at least" $2.8 million, and sought damages and other relief. On June 5, 2014, the Company and the other defendants filed a demurrer to the Amended Complaint seeking its dismissal. With the demurrer pending, on July 18, 2014, the same plaintiffs filed a complaint in the United States District Court for the Northern District of California, captioned Jasin v. VIVUS, Inc., Case No. 5:14-cv-03263. The Jasins' federal complaint alleges violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended, based on facts substantially similar to those alleged in their state court action. On September 15, 2014, pursuant to an agreement between the parties, plaintiffs moved to voluntarily dismiss, with prejudice, the state court action. In the federal action, defendants filed a motion to dismiss on November 12, 2014. On December 3, 2014, plaintiffs filed a First Amended Complaint in the federal action. On January 21, 2015, defendants filed a motion to dismiss the First Amended Complaint. The court ruled on that motion on June 18, 2015, dismissing the seven California claims with prejudice and dismissing the two federal claims with leave to amend. Plaintiffs filed a Second Amended Complaint on August 17, 2015. Defendants moved to dismiss that complaint on October 2, 2015. On September 10, 2015, plaintiffs moved for entry of judgment on their state claims. Briefing on both defendants' motion to dismiss and plaintiffs' motion for entry of judgment was completed on December 15, 2015. On April 19, 2016, the court issued a ruling granting defendants' motion to dismiss without leave to amend and denying as moot plaintiffs' motion for entry of judgment. On May 18, 2016, the plaintiffs filed a notice of appeal. The Company maintains directors' and officers' liability insurance that it believes affords coverage for much of the anticipated cost of the remaining Jasin action, subject to the use of our financial resources to pay for our self-insured retention and the policies' terms and conditions. The Company and the defendant former officers and directors cannot predict the outcome of the lawsuit, but they believe the lawsuit is without merit and intend to continue vigorously defending against the claims. VOLKSWAGEN AG: Court Aims to Speed Up Emissions Litigation ---------------------------------------------------------- Reuters reports that a German court will adopt a rarely used class-action style procedure to more efficiently process claims by investors seeking damages from Volkswagen over a diesel emissions cheating scandal, according to a ruling. The regional court in Braunschweig near Volkswagen's (VW) Wolfsburg headquarters said on Aug. 8 it will pick one case to act as a model to help resolve as many as 170 other damages claims, the closest thing Germany has to class-action lawsuits common in the United States. Private and institutional investors are suing VW alleging managers at the carmaker failed to disclose its involvement in a diesel emissions cheating scandal in a timely manner, a claim VW rejects. "VW continues to take the view that it has duly complied with disclosure rules related to securities law," a VW spokesman said on Aug. 8, adding the court's decision to allow for a model proceeding is a "normal procedural step" that is also backed by VW. Most of the 170 cases have been filed by private investors with the largest case by lawyer Andreas Tilp filed on behalf of 277 institutional investors and worth EUR3.26 billion ($3.60 billion). Mr. Tilp has represented investors in many German cases over capital market-disclosure issues. The Braunschweig court said the representative plaintiff will be named at the earliest in the fourth quarter and the model proceedings will help speed up resolution of the cases. Germany's legal system does not allow for U.S.-style class action suits for resolving the consumer claims of Volkswagen owners. The purpose of model proceedings is to resolve generic or common issues for other related cases, but unlike in a U.S. class action, the model proceeding does not have the legal effect of also resolving all of the individual claims. Europe's largest automaker is caught up in legal action in the United States, South Korea and elsewhere and also faces criminal investigations related to its diesel emissions test manipulations, its biggest-ever corporate scandal. Investors say they lost hundreds of millions of euros after United States regulators revealed VW's manipulation on Sept. 18. VW knew earlier about the regulatory probe into high levels of car emissions, but did not admit until Sept. 22 that 11 million cars worldwide were fitted with illegal software. Germany introduced model proceedings in mass actions for certain types of securities fraud in 2005 following a case involving Deutsche Telekom which became the target of thousands of lawsuits over alleged prospectus fraud, allegations the company denied. VOLKSWAGEN AG: DoJ Urged to Raise Compensation for Car Owners ------------------------------------------------------------- According to Autoweek, Consumer Reports has issued a call for the U.S. Department of Justice to raise the compensation amounts for owners of diesel Volkswagens that fall under the settlement reached between the automaker and U.S. authorities at the end of June. Consumers Union, the policy and mobilization division of the publication, wants the settlement to allow owners who get their cars fixed to later change their minds and sell the cars back to Volkswagen, in addition to pressing for higher buyback guarantees. "Consumers who receive an emissions fix -- if one is approved by regulators -- should have a period of time to return a modified car if they are unsatisfied with how it operates," Consumer reports urges. "This would give them a second chance to take the buyback or lease termination. It would help VW get more consumers to participate in the recall by protecting them from being stuck with a car that has worse performance or fuel economy than it did before." Consumer Reports is also calling for an extended timeline for compensation for former owners who sold their cars between September 2015 and June 2016. Under the terms of the settlement, sellers of affected vehicles have just 45 days to identify themselves in order to be eligible to split the owner restitution amount 50/50 with the new owners. Consumer Reports wants the DOJ to give former VW owners more time to take advantage of this provision. The publication also calls for vehicle buyback compensation values different from those proposed in the settlement -- figures that would result in payments several hundred dollars higher. "While recognizing the overall adequacy of the buyback prices that consumers would receive, Consumer Reports believes it would be more accurate for the settlement not to use the NADA Clean Trade- In value as the figure to represent the value of a consumer's car prior to public knowledge of the VW deceit," Consumer Reports agues. "This figure is closer to the wholesale value of the car, rather than its retail replacement value. Using, at a minimum, an estimated private sale price (approximately between the Clean Trade-In and Clean Retail values) would be more consistent with the Justice Department settlement's definition of Retail Replacement Value, and would lead to buyback offers for consumers that would be at least several hundred dollars higher. Moreover, using the Clean Trade-In figure instead of a more appropriate one undermines the value to consumers of the owner restitution under the Class Action settlement, which is supposed to mean monetary compensation in addition to the Vehicle Value Payment or Approved Emissions Modification." Additionally, the publication wants to see a quicker pace of vehicle buybacks, with the DOJ using staggered time targets to get 85 percent of the affected vehicles off the road. Consumer Reports concedes that the June 2019 deadline is ambitious, but wants to see a faster buyback regime with appropriate penalties, presumably to stave off an effort by owners to sell back their cars at the last minute. The current settlement agreement is scheduled to be approved by the U.S. District Court in a matter of weeks, paving the way for the start of the buyback process. WAHL CLIPPER: "Javers" Sues Over False Advertisement ---------------------------------------------------- Christina Joy Javers, on behalf of herself and all others similarly situated, Plaintiff, v. Wahl Clipper Corporation, Defendant, Case No. 1:16-cv-01984, (N.D. Ohio, August 9, 2016), seeks damages, interest and attorneys' fees and expenses, punitive damages, restitution and/or disgorgement of all amounts wrongfully charged, injunctive relief, statutory pre-judgment and post- judgment interest, reasonable attorneys' fees and costs and such other relief resulting from unjust enrichment and violation of the Ohio Consumer Sales Practices Act. Plaintiff asserts false advertisements regarding the Defendant's pet care products that claim natural ingredients despite labels that indicate that it contains synthetic chemicals. Plaintiffs are represented by: Mark Schlachet, Esq. 3515 Severn Road Cleveland, OH 44118 Telephone: (216) 225-7559 Facsimile: (216) 932-5390 Email: markschlachet@me.com WAHLBURGERS: Ex-Employees File Class Action Over Labor Violations ----------------------------------------------------------------- The Associated Press reports that five former employees of the burger chain founded by celebrity brothers Mark and Donnie Wahlberg are suing the company over what they call "rampant" violations of labor laws. The ex-employees who filed the class-action suit in New York federal court on Aug. 18 previously worked at a Wahlburgers location in Brooklyn. They claim Wahlburgers failed to pay them the proper minimum wage and regularly kept tips designated for servers. The lawsuit claims employees at one time didn't receive a $3,000 tip left for them following a private party for the cast of "Blue Bloods," the CBS series starring Donnie Wahlberg. The suit names Wahlburgers and the owners of its Brooklyn franchise. The Wahlbergs aren't named. Wahlburgers said on Aug. 18 that it's working with the franchise "to better understand the circumstances." WALKER BROS: Judge Dismisses Waiters' Class Action Over Tips ------------------------------------------------------------ Ashok Selvam, writing for Chicago Eater, reports that a group of waiters who filed a class-action lawsuit against the Walker Bros. chain -- which includes The Original Pancake House -- aren't happy after a U.S. Circuit Court of Appeals' decision. A judge ruled that the restaurant was not breaking federal and state laws after the servers accused the chain of using tip credits to compensate them for side duties not pertaining to serving customers. Those tasks include cleaning and food prep, something that could take 10 to 45 minutes daily. The lawsuit, Schaefer v. Walker Bros., could set a precedent for other Chicago-area restaurants, according to the Cook County Record. One attorney said the decision will work to discourage servers to file similar lawsuits as the ruling clears up confusing language in the laws. Robert Schaefer, who worked at three Walker Bros. since 2005, and 11 other workers opted into the suit, which also alleged the chain paid servers less than minimum wage for the work. That's despite state law requiring restaurants to pay at least 60 percent of minimum wage for those tasks. The complaint also said Walker Bros. failed to properly inform workers of how they were to be paid. The judge ruled Walker Bros. put up posters with an adequate explanation and that the servers should have been aware. WHEELER TRUCKING: Court Declines to Alter Remand Order ------------------------------------------------------ District Judge Debra M. Brown of the United States District Court for the Northern District of Mississippi denied defendants' motion for reconsideration in the case captioned, ANTHONY MARTEL ROBINSON, Plaintiff, v. ZACKERY WHEELER, WHEELER SUPPORTIVE SERVICES, INC., 1 WHEELER TRUCKING COMPANY, LLC, and JOHN DOES 1-10, Defendants, Civil No. 4:15-CV-104-DMB-JMV (N.D. Miss.) On February 12, 2016, the Court granted Anthony Martel Robinson's motion to remand, agreeing with Robinson that the notice of removal filed by 1 Wheeler Trucking Company, LLC (1 Wheeler), failed to satisfy the rule of unanimity. On February 25, 2016, 1 Wheeler Trucking Company, LLC's "Motion for Reconsideration, or in the Alternative, Motion to Vacate Order on Remand and Deny Remand with Prejudice" was filed, which seeks reconsideration of the remand order pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. In the motion, Wheeler advances three arguments in support of its motion for reconsideration: (1) the unanimity rule does not apply because Zackery Wheeler was not properly served with process; (2) the basis for remand was improperly raised in the reply brief supporting the motion to remand; and (3) the Court erred in remanding without accepting evidentiary submissions. The Court will address each argument in turn. In her Order dated August 16, 2016 available at https://is.gd/CrXWWk from Leagle.com, Judge Brown held that 1 Wheeler cannot legitimately claim that it was surprised or prejudiced in any way by the Court's consideration of Robinson's argument. Anthony Martel Robinson is represented by: William C. Bell, Esq. BELL LAW FIRM, PLLC 406 S. Pear Orchard Rd Ridgeland, MS 39157 Tel: (601)956-0360 Zackery Wheeler and Wheeler Supportive Services, Inc. are represented by Roy A. Smith, Jr., Esq. -- art.spratlin@butlersnow.com -- DANIEL, COKER, HORTON & BELL 1 Wheeler Trucking Company, LLC is represented by Arthur D. Spratlin, Jr., Esq. -- rsmith@danielcoker.com -- and -- Keishunna R. Webster, Esq. -- keishunna.webster@butlersnow.com -- BUTLER SNOW LLP WHITEWAVE FOODS: Faces Securities Class Action in Colorado ---------------------------------------------------------- Gainey McKenna & Egleston on Aug. 8 disclosed that a class action lawsuit has been filed against The WhiteWave Foods Company ("WhiteWave" or the "Company") in the United States District Court for the District of Colorado on behalf of current stock holders of WhiteWave, seeking to pursue remedies under the Securities Exchange Act of 1934 (the "Exchange Act"). On July 6, 2016, WhiteWave and Danone S.A. jointly announced that they had reached a definitive Agreement and Plan of Merger ("Merger Agreement") whereby WhiteWave will merge with and into Merger Sub (the "Merger"), with WhiteWave surviving as a wholly- owned subsidiary of Danone. The Merger was unanimously approved and adopted by the Board of Directors of WhiteWave. Pursuant to the Merger, each issued and outstanding share of WhiteWave common stock will be cancelled and automatically converted into the right to receive $56.25 in cash ("Merger Consideration"). However, this consideration is below at least one analyst's price target of $58.00 per share and represents virtually no premium over WhiteWave's 52-week high. The Complaint alleges that the Merger Consideration and the process by which Defendants agreed to consummate the proposed transaction are fundamentally unfair to WhiteWave's public stockholders. According to the Complaint, the Company has consistently announced positive financial results in recent quarters. Indeed, for the first quarter 2016, the Company reported net sales of $1.0 billion, a 14% increase from net sales of $911 million for the first quarter 2015. Just last year the stock was trading over $50 per share and in 2016 the stock price had increased approximately 30% from the start of the year. If you wish to discuss your rights or interests regarding this class action, please contact Thomas J. McKenna, Esq. or Gregory M. Egleston, Esq. of Gainey McKenna & Egleston at (212) 983-1300, or via e-mail at tjmckenna@gme-law.com or gegleston@gme-law.com WIDENER UNIVERSITY: 3rd Cir. Affirms Class Certification Denial --------------------------------------------------------------- Circuit Judge Michael Chagares of the Court of Appeals, Third Circuit, affirmed denial of class certification in the case captioned, JOHN HARNISH; JUSTIN SCHLUTH; ROBERT KLEIN; GREGORY EMOND; AYLA O'BRIEN KRAVITZ; CHRISTINA MARINAKIS, Appellants, v. WIDENER UNIVERSITY SCHOOL OF LAW, Case No. 15-3888 (3rd Cir.) Named plaintiffs John Harnish, Justin Schluth, Robert Klein, Gregory Emond, Ayla O'Brien Kravitz, and Christina Marinakis are graduates of Widener University School of Law (Widener), a private law school with campuses in Harrisburg, Pennsylvania, and Wilmington, Delaware, who graduated from Widener between 2008 and 2011. In a complaint filed in the United States District Court for the District of New Jersey on February 1, 2012, and amended on April 27, 2012, they claim that Widener violated the New Jersey Consumer Fraud Act (NJCFA) and the Delaware Consumer Fraud Act (DCFA) by intentionally publishing and marketing misleading statistics about the employment of its graduates. The plaintiffs claim that publishing misleading employment statistics enabled Widener to charge its students "inflated" tuition -- that is, higher tuition than what Widener would have received if full and accurate statistics were published instead. And they seek damages equal to the amount of tuition that students allegedly overpaid. Widener moved to dismiss the case, but the motion was denied on March 20, 2013. The parties then engaged in discovery related to class certification. On February 2, 2015, the plaintiffs moved to certify a class of "all persons who enrolled in Widener University School of Law and were charged full or part-time tuition within the statutory period for the six-year period prior to the date the Complaint in this action was filed through the date that this Class is certified." On July 1, 2015, the District Court denied class certification on two grounds. First, it found that the plaintiffs could not meet Federal Rule of Civil Procedure 23(b)(3)'s requirement that common questions "predominate" over individual questions because they had "not shown that they could prove the proposed class members' damages by common evidence." It also found that some class members might even have different interests than the named plaintiffs, insofar as those pursuing legal careers might prefer not to have Widener's reputation tarnished by the lawsuit. On appeal, the plaintiffs raised three challenges to the District Court's finding that Rule 23(b)(3)'s predominance requirement was not met. The plaintiffs' first argument is that the District Court applied an improperly burdensome legal standard under Rule 23(b)(3) by scrutinizing their class-wide evidence prior to full merits discovery and demanding that they "conclusively prove class-wide damages." Next, the plaintiffs argue that the District Court erroneously attributed significance to the fact that some Widener graduates do obtain full-time legal employment (meaning that some class members suffered little, if any, damage to their career prospects), effectively ignoring that the plaintiffs' theory of damages is unrelated to class members' actual employment outcomes. Finally, the plaintiffs argue that the District Court erred in equating their theory with the non-cognizable, reliance- based "fraud-on-the-market" theory, and contend that they have sufficient class-wide evidence to support a non-reliance-based inflated-tuition theory. In his Opinion dated August 16, 2016 available at https://is.gd/yOF2IF from Leagle.com, Judge Chagares found that the plaintiffs have failed to propose a cognizable theory of damages that is sufficiently supported by class-wide evidence. John Harnish, et al. are represented by: Danielle F. Moriber, Esq. Rachel E. Simon, Esq. David S. Stone, Esq. STONE & MAGNANINI 100 Connell Drive, Suite 2200 Berkeley Heights, NJ 07922 Tel:(973)218-1111 Widener University School of Law is represented by Dennis J. Drasco, Esq. -- ddrasco@lumlaw.com -- LUM DRASCO & POSITAN WILLIAMS-SONOMA: Court Trims Claims in "Rushing" Suit ----------------------------------------------------- In the case captioned, William Rushing, Plaintiff v. Williams - Sonoma, Inc et al Defendants, Case No. 16-CV-01421-WHO (N.D. Cal.), District Judge William H. Orrick of the United States District Court for the Northern District of California granted defendants' motion to dismiss allegations about products plaintiff did not purchase. The court also dismissed defendants not alleged to be liable for the product plaintiff purchased. Rushing alleges that defendants do not adhere to industry practice, standards, or instruction from the Federal Trade Commission (FTC) concerning their calculation of thread count. In support of this assertion, he relies on the American Society for Testing and Materials International (ATSM) D3775 standard, which sets the industry standard for determining thread count, according to Rushing, and requires that a textile not exceed plus or minus 5% deviation between the textile's declared and actual thread count. Rushing seeks to represent a class of consumers who purchased any bedding that was sold by defendants and advertised as having a "higher thread count," meaning a thread count of 350 or greater. Rushing purchased bedding from WSI's website labelled "Signature 600-Thread-Count Sateen Bedding." The product was advertised as being sewn from "lustrous 600-thread-count two-ply Egyptian-cotton sateen." He alleged that the thread count of the product he purchased was not 600, but merely 291, and that as a result he paid an inflated price for that bedding. He also asserts that the bedding he bought did not comply with the industry standard of having plus or minus 5% of the threads advertised because each two-ply yarn was improperly counted as two threads. Rushing alleges causes of action for: (i) violation of the California Consumer Legal Remedies Act (CLRA) specifically section 1770(a)(5)'s proscription against representing that goods have characteristics and qualities they do not have, section 1770(a)(7)'s proscription against representing that goods are of a particular standard and quality when are not, and section 1770(a)(9)'s proscription against advertising goods with intent not to sell them as advertised; (ii) violation of California's False Advertising Law (FAL), for misleading and deceptive practices; (iii) violation of the FAL by untrue and false advertising; (iv) violation of California's Unfair Practices Law (UCL) by committing acts that are unlawful under the Federal Trade Commission Act (FTCA), CLRA, and FAL; (v) violation of the UCL by unfair acts; (vi) violation of the UCL by fraudulent acts; (vii) breach of contract against WSI as to deceptive advertising for the WSI brands; (viii) breach of the implied covenant of good faith and fair dealing against WSI due to the deceptive advertising for the WSI brands; and (ix) unjust enrichment against WSI due to the deceptive advertising for the WSI brands. He also seeks injunctive relief against all defendants. In her Order dated August 15, 2016 available at https://is.gd/jd9QkY from Leagle.com, Judge Orrick granted defendants' motion to dismiss allegations about products Rushing did not purchase, because the legal theories and defenses regarding thread count in one-ply sheets (which he did not purchase) are different than in two-ply sheets, which he did purchase. The Court concluded that Rule 9(b) was not met because Rushing does not allege how he was misled by the accurate advertising of the WSH bedding as two-ply, his claim is based on an alleged violation of an industry standard that he does not allege he knew of, and he does not allege what he understood two- ply to mean. Defendants' motion to dismiss is denied in all other respects. Plaintiff shall file his amended complaint within 30 days of the date of this Order. William Rushing is represented by George Richard Baker, Esq. -- richard@bakerlawpc.com -- BAKER LAW PC, Audra Elizabeth Petrolle, Esq. -- apetrolle@roselawgroup.com -- Kathryn Honecker, Esq. -- khonecker@roselawgroup.com -- Lauren Marie Nageotte, Esq. -- lnageotte@roselawgroup.com -- ROSE LAW Williams-Sonoma, Inc., et al are represented by Eric James DiIulio, Esq. -- ediiulio@sheppardmullin.com -- Benjamin Okhaifo Aigboboh, Esq. -- baigboboh@sheppardmullin.com -- Dylan John Price, Esq. -- dprice@sheppardmullin.com -- P. Craig Cardon, Esq. -- ccardon@sheppardmullin.com -- SHEPPARD MULLIN RICHTER & HAMPTON LLP WPX PRODUCTION: Court Denies Renewed Bid for Class Certification ---------------------------------------------------------------- District Judge James O. Brorning of the United States District Court for the District of New Mexico denied Plaintiffs' renewed motion for class certification in the case captioned, STEVEN J. ABRAHAM, and H LIMITED PARTNERSHIP, on behalf of themselves and others similarly situated, Plaintiffs, v. WPX PRODUCTION PRODUCTIONS, LLC, f/k/a WILLIAMS PRODUCTION COMPANY, LLC, WILLIAMS FOUR CORNERS, LLC, and WILLIAMS ENERGY RESOURCES, LLC, Defendants, Case No. CIV 12-0917 JB/CG (D.N.M.). The Plaintiffs filed a proposed class action in federal court on August 28, 2012. After several rounds of amended pleadings, the Plaintiffs filed the current iteration of their Complaint on October 31, 2013. The Plaintiffs allege that they are present and former landowners who own royalties and overriding royalties that burden oil-and-gas leases and wells in the San Juan Basin. They assert that the Defendants underpaid their royalties by: (i) substituting "natural gas liquids" or NGLs with "less valuable residue gas in calculating royalty payments"; and (ii) basing the royalty payments on the price of the gas sold in affiliate transactions. They seek to obtain class status under rule 23 to represent themselves and other royalty owners. The Plaintiffs allege numerous claims, but they do not seek to certify all of them as class claims: -- They allege that WPX Production breached their royalty contracts by failing to pay royalty on NGLs. -- The Plaintiffs contend that WPX Production breached the covenant of good faith and fair dealing by "intentionally reducing financial value to which the plaintiffs and the class members are entitled" by failing to pay royalty on all production. -- They assert that WPX Production breached the implied duty to market by failing to market NGLs, "and in doing so obtain the best terms and prices for the benefit of the plaintiffs and members of the class." -- They allege that the Defendants "combined and conspired to cause WPX to unlawfully breach its Royalty agreements with plaintiffs and members of the putative class by failing to pay and/or underpaying Royalty on residue gas, and NGLs." -- The Plaintiffs argue that the Defendants violated the New Mexico Oil and Gas Proceeds Payment Act, N.M. Stat. Ann. Sec. 70-10-1 (NMPPA). The Plaintiffs also assert claims, which they do not seek to certify, for declaratory judgment, accounting, and injunction. WPX Production denies almost all of the Plaintiffs' allegations, except the jurisdictional and background facts about the parties. In the renewed motion, the Plaintiffs challenge WPX Production's royalty payment on the "production gathered to and processed by WFC." The Plaintiffs contend that commonality exists, because "none of the leases have language that authorizes WPX to fail to report and pay royalties on NGLs." They assert that, because each lease requires payment on all production, all proposed class members "possess the same interest and suffer the same injury." In his Memorandum Opinion and Order dated August 16, 2016 available at https://is.gd/q9X2PV from Leagle.com, Judge Brorning found that (1) excluding some of the wells on the Plaintiffs' Class Well List to conform to the Plaintiffs' class definition makes the class unascertainable; (2) although the underpayment claims satisfy rule 23(a)'s other requirements, they lack commonality under rule 23(a)(2); (3) the underpayment claims do not satisfy rule 23(b)(3)'s predominance requirement, although they would satisfy the superiority requirement; and (4) the NMPPA and conspiracy claims fail both rule 23(a)'s and 23(b)(3)'s requirements. Steven J. Abraham and H Limited Partnership are represented by: Jake Eugene Gallegos, Esq. Michael J. Condon, Esq. GALLEGOS LAW FIRM, P.C. 460 St. Michaels Dr. #300 Santa Fe, NM 87505 Tel:(505)983-6686 WPX Energy Production, LLC and William Four Corners are represented by John C. Anderson, Esq. -- jcanderson@hollandhart.com -- Mark F. Sheridan, Esq. -- msheridan@hollandhart.com -- Bradford C. Berge, Esq. -- bberge@hollandhart.com -- Christopher A. Chrisman, Esq. -- cachrisman@hollandhart.com -- and -- Robert J. Sutphin, Esq. -- rsutphin@hollandhart.com -- HOLLAND & HART, LLP XCEL ENERGY: Motion Seeking Clarification Remains Pending --------------------------------------------------------- Xcel Energy Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on August 4, 2016, for the quarterly period ended June 30, 2016, that e prime and Xcel Energy's motion seeking clarification of a court order in the Gas Trading Litigation remains pending. e prime, inc. (e prime) is a wholly owned subsidiary of Xcel Energy. e prime was in the business of natural gas trading and marketing, but has not engaged in natural gas trading or marketing activities since 2003. Thirteen lawsuits were commenced against e prime and Xcel Energy (and NSP-Wisconsin, in two instances) between 2003 and 2009 alleging fraud and anticompetitive activities in conspiring to restrain the trade of natural gas and manipulate natural gas prices. Five of the cases have since been settled and seven have been dismissed. One multi-district litigation (MDL) matter remains and it consists of a Colorado class (Breckenridge), a Wisconsin class (NSP-Wisconsin), a Kansas class, and two other cases identified as "Sinclair Oil" and "Farmland." In May 2016, the MDL judge granted summary judgment dismissing defendants from the Farmland lawsuit. e prime and Xcel Energy have filed a motion seeking clarification that this order includes them. This motion is currently pending. The e prime defendants recently filed a summary judgment motion in the Colorado class lawsuit (Breckenridge) and oppositions to class certifications in all the class actions. Trial dates have not yet been set, but are not expected to occur prior to early 2017. Xcel Energy, NSP- Wisconsin and e prime have concluded that a loss is remote. ZAFGEN INC: Court Dismisses "Brenan" Suit, Denies Bid to Amend -------------------------------------------------------------- District Judge F. Dennis Saylor IV of the United States District Court for the District of Massachusetts granted Defendants' motion to dismiss and denied Plaintiff's request for leave to amend in the case captioned, Terry M. Brenan et al, Plaintiffs, v. Zafgen, Inc, et al., Defendants, Civil Action No. 15-13618-FDS (D. Mass.). The lead plaintiffs have brought suit, on behalf of a class of similarly situated persons, against biopharmaceutical company Zafgen, Inc. and its CEO Thomas E. Hughes. Plaintiffs contend that class members were harmed when they purchased Zafgen's common stock at prices that were artificially inflated by the company's materially misleading statements and omissions concerning its anti-obesity drug, Beloranib. Plaintiff Aviad Bessler filed the original complaint in the case on October 21, 2015. On February 22, 2016, the lead plaintiffs filed an amended complaint on behalf of all purchasers of Zafgen's common stock during the period from June 19, 2014, through October 16, 2015. The amended complaint alleges that Zafgen and Hughes violated Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 (Count One), and that Hughes violated Section 20(a) of the 1934 Exchange Act (Count Two). Defendants have moved to dismiss the complaint with prejudice. They contend that Count One should be dismissed under Fed. R. Civ. P. 9(b) and 12(b)(6), and the PSLRA, 15 U.S.C. Sec. 78u-4, for two principal reasons: (1) failure to plausibly allege an actionable misstatement or omission and (2) failure to satisfy the PSLRA's requirement of pleading specific facts giving rise to a strong inference of scienter. Defendants also contend that Zafgen did not have a duty to disclose the omitted information, and that the complaint fails to make adequate allegations of loss causation. They have moved to dismiss Count Two for failure to state an underlying Exchange Act violation. In his Memorandum and Order dated August 9, 2016 available at https://is.gd/vClPyD from Leagle.com, Judge Saylor concluded the complaint presents allegations of scienter that are fairly weak, and the resulting inference is certainly not cogent and compelling and the complaint falls short of alleging a strong inference of intentional or reckless conduct, as required by the heightened pleading standard of the PSLRA. The Court did not grant plaintiffs' informal request for leave to amend after ruling on defendants' motion to dismiss because it will be inefficient, unfair to defendants, and burdensome to the Court. Oakland County Employees' Retirement System, Plaintiff is represented by Ian N. McCallister, Esq. -- rbaker@rdblaw.net -- ROB LEVINE & ASSOCIATES Aviad Bessler, et al. are is represented by Jeffrey C. Block, Esq. -- jeff@blockesq.com -- Jose Anderson Fleming, Esq. -- joel@blockesq.com -- BLOCK & LEVITON LLP Theodore J. Daly is represented by Eugene R. Richard, Esq. -- generichard@hrsllp.com -- RICHARD & SENCABAUGH LLP Terry Brennan, et al. are represented by Gonen Haklay, Esq. -- ghaklay@rosenlegal.com -- Jacob A. Goldberg -- jgoldberg@rosenlegal.com -- ROSEN LAW FIRM; -- Jeffrey C. Block, Esq.-- jeff@blockesq.com -- BLOCK & LEVITON LLP Zafgen, Inc. et al Defendants is represented by Adam Slutsky, Esq -- aslutsky@goodwinlaw.com -- Deborah S. Birnbach, Esq -- dbirnbach@goodwinlaw.com -- Kate Elizabeth MacLeman, Esq -- kmacleman@goodwinlaw.com -- GOODWIN PROCTER LLP * D&O Coverage Down 16.5% Despite Class Action Hike --------------------------------------------------- Dan Ascher, writing for The Insurance Insider, reports that the price of directors' and officers' (D&O) coverage fell heavily in the second quarter despite projections of an increase in class action litigation to levels not seen since the financial crisis. Broker Aon's quarterly D&O pricing report found that rates for $1mn of limit had fallen by 16.5 percent compared to the same three-month period last year, in the 12th consecutive quarter when its rating index has been in negative territory. * Four Cases Illustrate IC Structure Implementation Failures ------------------------------------------------------------ Richard J. Reibstein, Esq. -- reibsteinr@pepperlaw.com -- of Pepper Hamilton LLP, in an article for JDSupra, reports that four of the five independent contractor (IC) misclassification cases reported below from July 2016 illustrate how companies continue to fail to structure, document, and implement a business's IC relationships in a manner that minimizes the likelihood of being targeted by class action lawyers and regulators. These four cases involve two types of workers: drivers in the delivery/logistics and transportation industries, and musicians in the performing arts industry. Both types of workers can be bona fide ICs if their relationships are structured, documented, and implemented in a compliant manner. How can companies in these and other industries enhance their IC compliance? As noted in Pepper Hamilton LLP's White Paper on minimizing IC misclassification liability, this takes a focused effort using diagnostic tools designed to assess and then enhance IC compliance. In the Courts (3 cases) LOGISTICS COMPANY SERVING HOME DEPOT, J.C. PENNY AND SEARS SETTLES DRIVERS' IC MISCLASSIFICATION LAWSUIT FOR $13.5 MILLION. A California federal judge has granted preliminary approval of a $13.5 million class action settlement between logistics company, Exel Direct Inc. (Exel), and 386 delivery drivers in their class action IC misclassification lawsuit, subject to a December fairness hearing. Exel, now known as MXD Group, provided retailers such as Home Depot, J.C. Penney and Sears with delivery drivers to make home deliveries of furniture and other oversized items purchased in those stores. The Court concluded that "the Settlement is sufficiently within the range of reasonableness to warrant the preliminary approval of the Settlement, certification of the Class, the scheduling of the Fairness Hearing, and the mailing of notices to Class Members." Villalpando v. Exel Direct Inc., Nos. 12-cv-04137-JCS and 13-cv-03091-JCS (N.D. Cal. July 12, 2016). PORT TRUCKERS SETTLE IC MISCLASSIFICATION CLASS ACTION WITH TRUCKING COMPANY FOR $5 MILLION. A class of port truckers has reached a tentative $5 million settlement with QTS Inc., a trucking company, and its related entities in an IC misclassification class action. The proposed class consists of almost 400 Latin- and Korean-American truck drivers who are represented by the Wage Justice Center and Asian Americans Advancing Justice-LA. The complaint, first brought in 2013 and most recently amended on July 7, 2016, alleges that the trucking companies violated various provisions of California and federal law by misclassifying drivers as independent contractors, making unlawful deductions from their pay, failing to reimburse them for meal and rest breaks and expenses reasonably incurred during their employment, and engaging in unfair competition. During the long course of litigation, QTS also filed for bankruptcy. The drivers' motion for preliminary approval of the settlement is scheduled to be heard on August 12, 2016. Talavera v. QTS, Inc., No. BC501571 (Cal. Super. Ct. Los Angeles County, July 14, 2016). UBER UNSUCCESSFUL IN COMPELLING ARBITRATION OF IC MISCLASSIFICATION CASE IN PENNSYLVANIA. Uber's motion to compel arbitration and stay the proceedings in an IC misclassification class action was denied by Pennsylvania federal court on grounds that the plaintiff limousine drivers demonstrated that they had "opted out" of Uber's Arbitration Agreement. Uber, a ride-hailing company providing on-demand car services to the public, unsuccessfully argued a highly-technical legal assertion that the drivers' opt-outs were invalidated by an order issued in another Uber case being litigated in a California federal court that "nullified" the arbitration provision and therefore rendered ineffective the drivers' right to opt out of the Arbitration Agreement. The Pennsylvania court rejected that argument and held that, as a matter of law, the California judge's order did not render the Arbitration Provision a nullity and that the drivers did not agree to arbitrate whether a court or arbitrator should determine this issue because they opted out from the Arbitration Provision. The drivers will now continue to litigate their misclassification claims against Uber in federal court in Pennsylvania alleging violations of the Fair Labor Standards Act, Pennsylvania Minimum Wage Act, and Pennsylvania Wage Payment and Collection Law. Razak v. Uber Technologies, Inc., No. 16-cv-573 (E.D. Pa. July 21, 2016). Administrative and Regulatory Initiatives (3 matters) NLRB FINDS MUSICIANS ARE EMPLOYEES, NOT IC'S, AND MAY THEREFORE CHOOSE TO BE REPRESENTED BY A MUSICIANS UNION. The NLRB ruled in July that musicians who played in performances for a Massachusetts production company, Fiddlehead Theatre Company, Inc., are employees and not independent contractors and that a union election should proceed where the Boston Musicians' Association is seeking to represent the musicians for purposes of collective bargaining. In reaching its decision, the NLRB found that the following factors supported employee status: the musicians' performance of music in Broadway-style musicals constituted the regular business of the Company; the Company provided the venues for rehearsals and performances; musicians did not have any input into scheduling of rehearsals or performances; musicians had to familiarize themselves "with how the artistic director wanted the conductor" to have the music played; and a dress code had to be followed. Although the NLRB found other factors to support IC status, such as the work was on a show-by-show basis, the musicians were highly skilled, the method of payment was a flat fee-for-service, the musicians supplied their own instruments, and they had the right to decline engagements, it did not find those factors to be sufficient. Rather, the NLRB concluded that the factors in favor of employee status outweighed those favoring IC status. The NLRB's decision to issue a complaint may well have favored the production company if it had used a tool such as IC Diagnostics. Fiddlehead Theatre Company, Inc., No. 01-RC-179597 (NLRB, July 26, 2016). NLRB ISSUES TWO MORE IC MISCLASSIFICATION COMPLAINTS AGAINST TRUCKING COMPANIES REGARDING DRIVERS ALLEGEDLY MISCLASSIFIED AS IC'S. The NLRB Regional Office in Los Angeles issued unfair labor practice complaints against two separate port trucking companies, XPO Cartage and Laca Express, based on charges filed by the International Brotherhood of Teamsters. The complaints stem from the identical argument that the drivers have been misclassified as independent contractors and not employees "thereby inhibiting them from engaging in Section 7 activity and depriving them of the protections of the [National Labor Relations] Act." The complaints are not based solely on an allegation of misclassification; rather, misclassification is alleged in the context of other unfair labor practices, including claims that drivers were prohibited from talking about the union during work hours; drivers were prohibited from displaying union stickers on their trucks or wearing union insignia at work; drivers were threatened with job loss and/or other reprisals if the union won; and that as a condition of employment, the employees had to sign and be bound by lease agreements and an Independent Contractor Agreement. As remedies for the alleged unfair labor practices, the NLRB General Counsel seeks, among other things, an order requiring reimbursement of all work-related expenses incurred by the drivers, including reimbursement for the purchase of trucks. As noted in the Pepper Hamilton LLP's recent blog post analyzing a similar complaint issued by an NLRB Regional Office, where an unfair labor practice complaint includes allegations of other "classic" violations of the law (threats, interrogations, and promises), it is not feasible to ascertain if the General Counsel of the NLRB is taking the position that mere misclassification of workers as independent contractors violates the National Labor Relations Act -- or that something more must be done to a worker whom the General Counsel believes should be classified as an "employee" under NLRB and court decisions defining that term. XPO Cartage, Inc., No.21-CA-150873 (July 14, 2016); Laca Express, Inc., NLRB Region 21, No.21-CA-150928 (June 28, 2016). NEW YORK EXPANDS IC MISCLASSIFICATION TASK FORCE. New York Governor Andrew Cuomo has established a permanent Joint Task Force to develop strategies for systematically investigating employee misclassification and facilitating the prosecution of employers in violation of the law. As described more fully in our blog post of July 21, 2016, Executive Order No. 159 expanded the existing Joint Enforcement Task Force on Employee Misclassification into a Joint Task Force on Worker Exploitation and Worker Misclassification. According to a Press Release issued by the Governor on July 20, 2016, the Joint Task Force is vested with many powers and duties including facilitating the sharing of information between Task Force members relating to suspected employee misclassification and worker exploitation violations in a timely manner; working cooperatively with labor and community organizations, businesses and business coalitions, and other advocacy groups to (1) seek and develop new methods of prevention, detection, and deterrence of employee misclassification and worker exploitation; (2) enhance or modify mechanisms for identifying and reporting instances of alleged employee misclassification and worker exploitation; (3) receive input on educational needs or compliance opportunities; and (4) collaborate with federal, state, and local social services agencies to provide timely assistance to vulnerable populations that have been misclassified and exploited. Together with the issuance of the Executive Order, the Joint Task Force issued the 2016 Annual Report, which identified several industries where independent contractor misclassification and/or worker exploitation is prevalent, such as nail salons, restaurants, agriculture, car washes, domestic workers, construction, landscaping, dry cleaning, supermarkets, home health care, and retail. While the Executive Order and 2016 Report focus on the negative impact of misclassification of ICs, there is no mention of the value to the U.S. economy from the legitimate use of independent contractors that has been noted both by U.S. Secretary of Labor Thomas Perez and Dr. David Weil, Administrator of the Wage and Hour Division of the U.S. Department of Labor. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Marion Alcestis A. Castillon, Ma. Cristina Canson, Noemi Irene A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2016. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000 or Nina Novak at 202-362-8552. * * * End of Transmission * * *