/raid1/www/Hosts/bankrupt/CAR_Public/170104.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, January 4, 2017, Vol. 19, No. 3
Headlines
ABEONA THERAPEUTICS: Robbins Arroyo Files Securities Suit
ALEXION PHARMACEUTICALS: Jan. 17 Lead Plaintiff Bid Deadline
ALLSTATE CORP: Jan. 9 Lead Plaintiff Bid Deadline
AMAZON: Ordered to Hand Over Customer Information
ARMORED INVESTMENT: Zellerino Appeals Cal. Decision to 10th Cir.
ASHLEY MADISON: Settles Data Breach Claims for $1.6MM
AUDIT & ADJUSTMENT: Jones Appeals W.D. Wash. Ruling to 10th Cir.
BANCORP INC: $17.5MM Settlement Has Final Court OK
BARCLAYS: Justice Dep't Sues Over Mortgage-Backed Securities
BAYADA HOME: Accused of Underpaying Employees
BEAR STEARNS: Award of Atty's Fees in "Devalerio" Suit Affirmed
BED BATH: Faces Class Action Over "Fluctuating OT" Formula
BELLAMY'S: Slater & Gordon Mulls Investor Class Action
BELLAMY'S: More Than 200 People Sign Up for Class Action
CANADA: School Boards Have Until Jan. 5 to Appeal Fee Case Ruling
CANADA: Ontario Court Certifies Mentally Ill Inmates' Action
CANADA: Former Military Members Allege Racism, Harassment
CANYON RIDGE: Summary Judgment in Atty Fee Dispute Affirmed
CEMPRA INC: Jan. 3 Lead Plaintiff Bid Deadline in V. Wong Suit
CHC GROUP: Rudman Seeks Second Circuit Review of S.D.N.Y Ruling
CHEMTURA CORP: Being Sold Too Cheaply, Shareholder Suit Says
CHIASMA INC: Robbins Geller, Johnson & Weaver Named Lead Counsel
CHINA XD: Securities Class Action Underway
COMCEPT: Mighty No. 9 Kickstarter Backers Mull Class Action
DAKOTA PLAINS: Wolf Haldenstein Files Securities Class Action
ENERGY TRANSFER: Still Faces Unitholder Litigation in Delaware
GALECTIN THERAPEUTICS: Dismissal of "Hotz" Suit Affirmed
GLACIER COUNTY, MT: Taxpayers' Class Action Ongoing
GLOBUS MEDICAL: Appeal in Silverstein Litigation Ongoing
GOPRO INC: Jan. 17 Lead Plaintiff Bid Deadline
GUARANTY BANCORP: Hearing This Month on "Sciabacucchi" Case Deal
HARRIS COUNTY, TX: Faces "Lomas" Class Suit Over Detention
HAUDENOSAUNEE DEVELOPMENT: Class Action Hearing Postponed
HOUSEHOLD INT'L: McDonald Seeks Review of Ruling in "Jaffe" Suit
ILLUMINA INC: Feb. 14 Lead Plaintiff Bid Deadline
IMPAX LABORATORIES: Jan. 9 Lead Plaintiff Bid Deadline
INFUSYSTEM HOLDINGS: Jan. 9 Lead Plaintiff Bid Deadline
INTUITIVE SURGICAL: Pension Plans' Class Action Certified
JOHN MARSHALL: Ex-Professor Files Racial Discrimination Suit
JOHNSON & JOHNSON: Jury Awards $1BB Verdict in Hip Implant Case
JOHNSON & JOHNSON: Attacks Judge for Evidentiary Rulings in Cases
K BREAD: Rodriguez-Hernandez Appeals S.D.N.Y. Ruling to 2nd Cir.
LASERCRAFT: Judge to Decide on Orlando Red Light Ticket Case
LORNA JANE: Settles Class Action Over Gift Voucher Issues
MENARD INC: Violates Labor Law, NLRB Says
MENTOR GRAPHICS: Shareholders Challenge Siemens Deal
MORGANS HOTEL: Defending Against Merger Class Actions
NAT'L FOOTBALL: Turner Attorney Accused of Seeking Double Payment
OCWEN LOAN: Ninth Circuit Appeal Filed in "Moody" Class Suit
PONTOON SOLUTIONS: Ninth Circuit Appeal Filed in "Berrellez" Suit
RAWSON-NEAL: Class Suit Charges Hospital With Patient Dumping
RDI LOGISTICS: Mass. Vacates Summary Judgment in "Chambers" Suit
ROYAL BANK: Settles Class Action Over 2008 Rights Issue
SAUDI ARABIA: Lobbying Efforts to Halt 9/11 Litigation Fails
SAVEOLOGY.COM LLC: 9th Circuit Appeal Filed in "Stoba" Class Suit
SCHWARTZ LEVITSKY: Court of Appeal Allows Global Class Action
SERVICESOURCE INTERNATIONAL: Motion to Dismiss Weller Suit Pending
SERVICESOURCE INTERNATIONAL: "Patton" Suit Pending in Tennessee
SOLARCITY CORP: Seeks Dismissal of Labor Class Action
SONY CORP: EU Slaps Fine Over Battery Price-Fixing
SOUTHERN XPOSURE: Ex-Dancer Says Firm Didn't Pay Her Properly
SOUTHWESTERN ENERGY: Ark. High Court Backs Class Certification
SPLASH NORWALK: Denied Workers' Wages, Suit Says
ST. CLAIR COUNTY, IL : Treas. Loses Bid to Dismiss Class Action
STATE FARM: Racketeering Class Action Heads to Trial
SYNGENTA: Appeals Court Affirms Ruling in GM Maize Class Action
TATA SONS: Minority Shareholders File Class Action in India
TARO PHARMA: Class Suit Filed By Levi & Korsinsky Remains Pending
TELIGENT INC: Faces "Castillo" Suit Over Antifungal Cream
TOP FLITE: Dismissal of Bridging Communities Suit Reversed
TRUECAR INC: NY Lanham Act Litigation in Discovery
TRUECAR INC: Jan. 26 Status Conference in "Rose" Action
TRUMP UNIVERSITY: Final Settlement Approval Hearing on March 30
TWITTER INC: Faces Class Action Over Sale of Profile Information
UNITED STATES: Suit Aims to Prevent IRS Tracking of Bitcoin Users
UNITED STATES: Seeks 9th Cir. Review of Order in "Hernandez" Suit
UNITED STATES: Tenth Circuit Appeal Filed in "Donelson" Suit
UNIVERSAL HEALTH: Faces Shareholder Class Action in Calif.
VALERO: 10th Circuit Hears Argument in "Hot Fuel" Settlements
VIACOM INC: Seeks Dismissal of Class Actions
VIRGIN AMERICA: Investors Drop Merger Class Suit
WASHINGTON UNIVERSITY: Daleiden Appeals Ruling in Jane Doe Suit
WELLS FARGO: Deploys Defense Attorneys for Fake Accounts Cases
WHOLE FOODS: Managers Fired For Whistleblowing Files Class Action
XYTEX CORP: Loses Motion to Consolidate Sperm Donor Cases
YAHOO! INC: Announces Breach of Another 1 Billion User Accounts
YAHOO! INC: Size of Data Breach Poses Challenge to Regulators
YELP INC: 9th Circuit Appeal Remains Pending
YELP INC: $0.6 Million Settlement Awaits Final Approval
YELP INC: $0.2 Million Settlement Awaits Final Approval
* Employers Face Threat of FCRA Lawsuits After Spokeo Ruling
* Securities Industry Expresses Concern on DOL Fiduciary Rule
*********
ABEONA THERAPEUTICS: Robbins Arroyo Files Securities Suit
---------------------------------------------------------
Shareholder rights law firm Robbins Arroyo LLP disclosed that a
class action complaint was filed against Abeona Therapeutics Inc.
in the U.S. District Court for the Southern District of New York.
The complaint is brought on behalf of all purchasers of PlasmaTech
securities between March 31, 2015 and June 19, 2015, and all
purchasers of Abeona securities from June 22, 2015 to December 9,
2016, for alleged violations of the Securities Exchange Act of
1934 by Abeona's officers and directors. Abeona focuses on
developing and delivering gene therapy and plasma-based products
for severe and life-threatening rare diseases. Abeona's lead
programs are ABO-101 and ABO-102, adeno-associated virus-based
gene therapies for Sanfilippo syndrome.
Abeona Accused of Lying About the Efficacy of Its Gene Therapies
According to the complaint, Abeona submitted a series of filings
with the U.S. Securities and Exchange Commission attesting to the
accuracy of financial reporting, the disclosure of any material
changes to the company's internal control over financial
reporting, and the disclosure of all fraud. Abeona touted that a
single dose of ABO-101 and ABO-102 significantly restored normal
cell and organ function, corrected cognitive defects that remained
months after drug administration, and increased neuromuscular
control. However, the complaint alleges that Abeona failed to
disclose that the science behind its proposed gene therapy
treatment for Sanfilippo syndrome is unviable and that the
company's Executive Chairman and Principal Executive Officer,
Steven H. Rouhandeh ("Rouhandeh"), previously worked in a high
ranking position for a biotech promoter who was convicted of
securities fraud and involved in manipulating biotech stocks.
On December 12, 2016, analyst firm Mako Research published a
report on the company, noting that the delivery mechanism of
Abeona's proposed gene therapy is inferior to existing studies
from other companies with superior delivery mechanisms and that
the company is "attempting to clear a bar that is so low that it's
essentially meaningless, meaning whatever their trial shows should
be clinically worthless." The report also claimed that Rouhandeh
"blazed a trail of shareholder destruction in lousy biotech
stocks" and that his tenure at the biotech stock promoter was
omitted from his recent, publicly available business background
profiles. On this news, Abeona's stock fell $0.70 per share, or
over 13%, to close at $4.45 per share on December 12, 2016.
Abeona Shareholders Have Legal Options
Concerned shareholders who would like more 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 nationally recognized leader in
shareholder rights law. The firm represents individual and
institutional investors in shareholder derivative and securities
class action lawsuits, and has helped its clients realize more
than $1 billion of value for themselves and the companies in which
they have invested.
ALEXION PHARMACEUTICALS: Jan. 17 Lead Plaintiff Bid Deadline
------------------------------------------------------------
Kahn Swick & Foti, LLC and KSF partner, the former Attorney
General of Louisiana, Charles C. Foti, Jr., reminds investors that
they have until January 17, 2017 to file lead plaintiff
applications in a securities class action lawsuit against Alexion
Pharmaceuticals, Inc. (NASDAQ: ALXN), if they purchased the
Company's securities between February 10, 2014 and November 9,
2016, inclusive (the "Class Period"). The action is pending in
United States District Court, Southern District of New York.
What You May Do
If you purchased securities of Alexion and would like to discuss
your legal rights and how this case might affect you and your
right to recover for your economic loss, you may, without
obligation or cost to you, call toll-free at 1-877-515-1850 or
email KSF Managing Partner Lewis Kahn -- lewis.kahn@ksfcounsel.com
-- If you wish to serve as a lead plaintiff in this class action,
you must petition the Court by January 17, 2017.
About the Lawsuit
Alexion and certain of its executives are charged with failing to
disclose material information during the Class Period, violating
federal securities laws.
The alleged false and misleading statements and omissions include,
but are not limited to, that: (i) Alexion employed improper sales
practices with respect to its product Soliris; (ii) that the
Company's revenues from Soliris sales were unlikely to be
sustainable; and (iii) as a result of the foregoing, Alexion's
public statements were materially false and misleading at all
relevant times.
Additionally, on December 12, 2016, Alexion announced the
unscheduled departure of CEO David Hallal and CFO Vikas Sinha, who
both resigned effective immediately.
On this news, the price of Alexion's shares again plummeted.
About Kahn Swick & Foti, LLC
KSF, whose partners include the Former Louisiana Attorney General
Charles C. Foti, Jr., is a law firm focused on securities,
antitrust and consumer class actions, along with merger &
acquisition and breach of fiduciary litigation against publicly
traded companies on behalf of shareholders. The firm has offices
in New York, California and Louisiana.
ALLSTATE CORP: Jan. 9 Lead Plaintiff Bid Deadline
-------------------------------------------------
The Law Offices of Howard G. Smith announces that a class action
lawsuit has been filed on behalf of investors who purchased The
Allstate Corporation securities between October 30, 2014 and
August 3, 2015, inclusive. Allstate investors have until January
9, 2017 to file a lead plaintiff motion.
Investors suffering losses on their Allstate investments are
encouraged to contact the Law Offices of Howard G. Smith to
discuss their legal rights in this class action at 888-638-4847 or
by email to howardsmith@howardsmithlaw.com.
According to the Complaint filed in this lawsuit, throughout the
Class Period defendants made false and/or misleading statements
and/or failed to disclose that the reason for the sudden spike in
its auto claims frequency, which defendants claimed was due to
external events beyond the Allstate's control, was actually the
result of Allstate's growth in its auto policy business through
higher risk drivers.
On August 3, 2015, post-market, Allstate disclosed its second
quarter 2015 financial results. In its report Allstate announced a
third consecutive quarter of heightened auto claims frequency, a
57% reduction in operating income and operating earnings per share
that were $0.34 under analysts' estimates. Following Allstate's
earnings release, the Company's Chief Executive Officer stated
that the lower quarterly profit was primarily caused by "a
deterioration in auto insurance margins" claiming that "margins
decreased as higher claim frequency and severity more than offset
average auto insurance price increases."
Due to these disclosures, Allstate's share price fell over 10%, to
close at $62.34 on August 4, 2015.
If you purchased shares of Allstate during the Class Period you
may move the Court no later than January 9, 2017 to ask the Court
to appoint you as lead plaintiff if you meet certain legal
requirements. To be a member of the Class you need not take any
action at this time; you may retain counsel of your choice or take
no action and remain an absent member of the Class. If you wish to
learn more about this action, or if you have any questions
concerning this announcement or your rights or interests with
respect to these matters, please contact Howard G. Smith, Esquire,
of Law Offices of Howard G. Smith, 3070 Bristol Pike, Suite 112,
Bensalem, Pennsylvania 19020 by telephone at (215) 638-4847, toll-
free at (888) 638-4847, or by email to --
howardsmith@howardsmithlaw.com --
AMAZON: Ordered to Hand Over Customer Information
-------------------------------------------------
Daphne Howland at Retail Dive reports that U.S. District Court
Judge James Robart rejected Amazon's argument that complying with
a previous court order to hand over customer information in a
class action consumer lawsuit would violate the e-commerce
kingpin's confidentiality promise to its customers, according to
court documents.
Amazon isn't a party in the suit against hair products retailer
WEN, which has agreed to pay $25 to everyone who bought its
conditioner, and up to $20,000 to shoppers who had a bad reaction
to it. Attorneys want the Amazon customer information to notify
those who bought WEN products on the site about the damages
they're due, according to a report from MediaPost.
While those attorneys promise they'll keep the customer
information private, Amazon said their assurances don't add up to
adequate privacy protection.
Dive Insight:
Most consumer protection efforts are focused on stealth tracking
efforts by retailers and other companies, or inadequate
protections by businesses of consumer data, according to the
Federal Trade Commission. But Judge Robart is prioritizing
notification of another consumer right -- damages brought on by
harmful consumer products -- over one retailer's data protection
initiatives.
Amazon in November argued that it should be protected by the
discovery demands in the case, in part because it isn't a party to
it, and said that its customers' right to privacy outweighs the
other parties' interest in its customer information.
"Amazon takes very seriously its customers' privacy and the
security of their confidential information," Amazon attorneys
argued. "Inversely, customers rely on Amazon's privacy policies
and expect their personal data to be safe. Plaintiffs' demand is
doubly intrusive because it forces Amazon to violate its
customers' trust, and it invades those customers' privacy without
notice. Plaintiffs assume that consumers would prioritize notice
of a class action settlement recovery over the security of their
personal data, but that is not a choice that plaintiffs or this
court have the right to make."
Attorneys for the plaintiffs said that the request for the
information was narrow, and that the amount of damages was
significant -- factors favoring the release of the data. The judge
agreed.
"The request is tailored as narrowly as possible to accomplish the
goal of providing notice to individuals that may have sustained
serious injuries and will be shared only with a sophisticated
settlement administrator who possesses the skill and technical
capability of protecting the information," the attorneys said in
response to Amazon's argument, according to Consumerist. It's not
clear whether Amazon will pursue the issue further, but the ruling
puts significant strain on the company's customer-first stance.
ARMORED INVESTMENT: Zellerino Appeals Cal. Decision to 10th Cir.
----------------------------------------------------------------
Plaintiff Janice Zellerino filed an appeal from a court ruling in
the lawsuit styled Janice Zellerino v. Andrew Roosen, et al., Case
No. 8:16-cv-00485-JLS-AJW, in the U.S. District Court for the
Central District of California, Santa Ana.
As previously reported in the Class Action Reporter, the lawsuit
is brought over alleged violation of the Fair Credit Reporting
Act.
The appellate case is captioned as Janice Zellerino v. Andrew
Roosen, et al., Case No. 16-56828, in the United States Court of
Appeals for the Ninth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Transcript must be ordered by January 11, 2017;
-- Transcript is due on April 11, 2017;
-- Appellant Janice Zellerino's opening brief is due on
May 22, 2017;
-- Answering brief of Appellees Armored Investment Group,
Inc., Datamyx, LLC, Equifax Information Services, LLC,
Andrew Roosen and Salem Shubash is due on June 21, 2017;
and
-- Appellant's optional reply brief is due 14 days after
service of the answering brief.
Plaintiff-Appellant JANICE ZELLERINO, individually and on behalf
of all others similarly situated, is represented by:
Michael Allen Caddell, Esq.
Cynthia B. Chapman, Esq.
Amy E. Tabor, Esq.
CADDELL & CHAPMAN
628 East 9th St.
Houston, TX 77007
Telephone: (713) 751-0400
Facsimile: (713) 751-0906
E-mail: mac@cadellchapman.com
cbc@caddellchapman.com
aet@caddellchapman.com
- and -
Lee A. Sherman, Esq.
CALLAHAN, THOMPSON, SHERMAN & CAUDILL, LLP
2601 Main Street, Suite 800
Irvine, CA 92614
Telephone: (714) 730-5700
E-mail: lsherman@ctsclaw.com
Defendants-Appellees ANDREW ROOSEN, SALEM SHUBASH and ARMORED
INVESTMENT GROUP, INC., are represented by:
Ryan Dallas Miller, Esq.
CUMMINGS MCCLOREY DAVIS ACHO AND ASSOCIATES
3801 University Avenue
Riverside, CA 92501
Telephone: (951) 276-4420
Facsimile: (951) 276-4405
E-mail: rmiller@cmda-law.com
Defendant-Appellee DATAMYX, LLC, is represented by:
Peter J. Kennedy, Esq.
REED SMITH LLP
355 South Grand Avenue
Los Angeles, CA 90071
Telephone: (213) 457-8000
Facsimile: (213) 457-8080
E-mail: pkennedy@reedsmith.com
Defendant-Appellee EQUIFAX INFORMATION SERVICES, LLC, is
represented by:
Vincent Frank Tremonti, II, Esq.
KING AND SPALDING LLP
633 W. 5th Street, Suite 1700
Los Angeles, CA 90071
Telephone: (213) 443-4355
Facsimile: (213) 443-4310
E-mail: vtremonti@kslaw.com
ASHLEY MADISON: Settles Data Breach Claims for $1.6MM
-----------------------------------------------------
C. Ryan Barber and Mark Hamblett, writing for The National Law
Journal, reports that AshleyMadison.com, a website built to help
cheating lovers meet their match, has agreed to settle claims that
lax cybersecurity was responsible for a data breach that exposed
the personal information of millions of customers last year.
As part of an agreement with the Federal Trade Commission and
several state attorneys general, the parent company, Ruby Corp.,
will pay $1.6 million to resolve charges connected to the July
2015 hack. The breach exposed millions of customers' addresses,
credit card numbers and sexual preferences.
The sanctions announced Dec. 14 amounted to $17.5 million, but
that penalty was largely suspended because of the company's
inability to pay, FTC Chairwoman Edith Ramirez told reporters on a
conference call. If regulators later determine Ashley Madison's
parent company misrepresented its financial condition, it will
have to pay the entire settlement amount.
"This case represents one of the largest data breaches that the
FTC has investigated to date, implicating 36 million individuals
worldwide," Ms. Ramirez said in a statement. "The global
settlement requires AshleyMadison.com to implement a range of more
robust data security practices that will better-protect its users'
personal information from criminal hackers going forward."
In August 2015, a month after the breach, hackers published the
personal information of more than 36 million AshleyMadison.com
users online. AshleyMadison.com retained some of that information
after charging customers $19 for the "full delete" service to
permanently remove their data from the site's network.
James Halpert, co-chairman of DLA Piper's cybersecurity practice,
represented Ashley Madison and its parent company, formerly known
as Avid Life Media Inc. Mr. Halpert was not immediately reached
for comment on Dec. 14.
According to the FTC, Ashley Madison advertised that it received a
"Trusted Security Award" when, in fact, it had received no such
award and failed to take adequate data security measures.
The FTC and attorneys general also alleged that the website
created fake profiles to lure in new users. That portion of the
FTC's complaint mirrored charges the agency brought in 2014
against another online dating site, the England-based JDI Dating
Ltd. The company agreed to pay $616,165 in redress to resolve
claims that it used computer-generated profiles to trick customers
into upgrading their accounts and charged users a recurring
monthly fee without their consent.
According to the FTC, AshleyMadison.com employed a similar
strategy through August 2014, using fake profiles of women to
entice 19 million U.S. residents into upgrading to paid accounts.
'Unprecedented' international cooperation
Regulators in Canada and Australia assisted the FTC in the
investigation and reached separate settlements with Ashley
Madison's Toronto-based parent company. Ms. Ramirez said Dec. 14
the investigation involved an "unprecedented level" of
international cooperation.
Ms. Ramirez said she expects the FTC to step up its cooperation
with overseas regulators as it continues to enforce data-security
standards.
"Certainly the fact that these issues impact consumers worldwide
means international cooperation is becoming increasingly
important," she said.
"I see it as the beginning," she added. "I think that's going to
be happening increasingly going forward."
The FTC has established itself as a top cybersecurity cop in
recent years. On Dec. 14, Ms. Ramirez said she believes
cybersecurity is "going to continue to be a top priority" for the
agency after President-elect Donald Trump takes office next year.
The FTC was joined in the settlement by 13 states, along with the
District of Columbia.
AUDIT & ADJUSTMENT: Jones Appeals W.D. Wash. Ruling to 10th Cir.
----------------------------------------------------------------
Plaintiffs Portia Jones, Alexandra Hewardt Anderson, Angela Root,
Joshua R. Auxier, Theresa Mosby, Kelsey Erickson, Marilynn
Cormier, Rebecca Foutz, Renee Conroy, Stephen H. Simmons, Natalie
F. Simmons, Katherine A. Rohr-Smith and Zaldy Fernandez filed an
appeal from a court ruling in their lawsuit entitled Portia Jones,
et al. v. Audit & Adjustment Company Inc., et al., Case No. 2:15-
cv-01012-JCC, in the U.S. District Court for the Western District
of Washington, Seattle.
The appellate case is captioned as Portia Jones, et al. v. Audit &
Adjustment Company Inc., et al., Case No. 16-80186, in the United
States Court of Appeals for the Ninth Circuit.
Plaintiffs-Petitioners PORTIA JONES, ALEXANDRA HEWARDT ANDERSON,
ANGELA ROOT, JOSHUA R. AUXIER, THERESA MOSBY, KELSEY ERICKSON,
MARILYNN CORMIER, REBECCA FOUTZ, RENEE CONROY, STEPHEN H. SIMMONS,
NATALIE F. SIMMONS, KATHERINE A. ROHR-SMITH and ZALDY FERNANDEZ,
individually and on behalf of others similarly situated, are
represented by:
Guy William Beckett, Esq.
BERRY & BECKETT LAW, PLLP
1708 Bellevue Avenue
Seattle, WA 98122-2017
Telephone: (206) 441-5444
E-mail: gbeckett@beckettlaw.com
- and -
Matthew Geyman, Esq.
PHILLIPS LAW GROUP PLLC
315 Fifth Avenue South
Seattle, WA 98104-2682
Telephone: (206) 382-1168
Facsimile: (206) 382-6168
E-mail: mgeyman@jphillipslaw.com
- and -
Kim Williams, Esq.
Rob Williamson, Esq.
WILLIAMSON AND WILLIAMS
2239 W Viewmont Way W
Seattle, WA 98199
Telephone: (206) 466-6230
Facsimile: (206) 535-7899
E-mail: kim@williamslaw.com
roblin@williamslaw.com
Defendant-Respondent AUDIT & ADJUSTMENT COMPANY INC. is
represented by:
Joel E. Wright, Esq.
LEE SMART, P.S., INC.
1800 One Convention Place
701 Pike Street, Suite # 1800
Seattle, WA 98101-3959
Telephone: (206) 624-7990
Facsimile: (206) 624-5944
E-mail: jw@leesmart.com
Defendant-Respondent KIMBERLEE WALKER OLSEN is represented by:
James Donald Nelson, Esq.
Shaina Rhodes Johnson, Esq.
Natalie Moore, Esq.
BETTS, PATTERSON & MINES
701 Pike Street
Seattle, WA 98101
Telephone: (206) 292-9988
E-mail: jnelson@bpmlaw.com
sjohnson@bpmlaw.com
nmoore@bpmlaw.com
Defendants-Respondents AUDIT & ADJUSTMENT COMPANY INC., MERCHANT'S
CREDIT CORPORATION, ERIK BAKKE and JASON WOEHLER are represented
by:
Marc Rosenberg, Esq.
LEE SMART, P.S., INC.
1800 One Convention Place
701 Pike Street, Suite # 1800
Seattle, WA 98101-3959
Telephone: (206) 624-7990
Facsimile: (206) 624-5944
E-mail: mr@leesmart.com
Defendant-Respondent ROBERT FRIEDMAN is represented by:
Kathleen A. Nelson, Esq.
LEWIS BRISBOIS BISGAARD & SMITH LLP
1111 Third Avenue, Suite 2700
Seattle, WA 98101
Telephone: (206) 436-2020
Facsimile: (206) 436-2030
E-mail: Kathleen.Nelson@lewisbrisbois.com
Defendant-Respondent PHYSICIANS AND DENTISTS CREDIT BUREAU INC., a
Washington corporation, is represented by:
Jeffrey Edward Bilanko, Esq.
GORDON & REES LLP
701 Fifth Avenue, Suite 2100
Seattle, WA 98104
Telephone: (206) 695-5100
Facsimile: (206) 689-2822
E-mail: jbilanko@gordonrees.com
Defendant-Respondent ASSET RECOVERY GROUP, INC., an Oregon
corporation, is represented by:
Robert E. Sabido, Esq.
Timothy J. Fransen, I, Esq.
COSGRAVE VERGEER KESTER LLP
500 Pioneer Tower
888 SW Fifth Avenue
Portland, OR 97204
Telephone: (503) 323-9000
E-mail: rsabido@cosgravelaw.com
tfransen@cosgravelaw.com
Defendant-Respondent KING COUNTY is represented by:
Janine Elizabeth Joly, Esq.
Kimberly Y. Frederick, Esq.
KING COUNTY PROSECUTING ATTORNEY'S OFFICE
500 Fourth Avenue
Seattle, WA 98104
Telephone: (206) 205-1234
E-mail: janine.joly@kingcounty.gov
Kimberly.Frederick@kingcounty.gov
BANCORP INC: $17.5MM Settlement Has Final Court OK
--------------------------------------------------
The Bancorp, Inc. and all other individually-named defendants on
July 27, 2016, entered into a Stipulation and Agreement of
Settlement with respect to the consolidated class action
securities litigation filed in the United States District Court
for the District of Delaware under the caption of In re The
Bancorp, Inc. Securities Litigation, Case No. 14-cv-0952 (SLR)
(District of Delaware). Under the terms of the Settlement
Agreement, consideration paid to the plaintiffs will be fully
funded by the Company's insurance carriers. On December 15, 2016,
the court approved the terms of the Settlement Agreement.
The Bancorp, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on November 9, 2016, for the
quarterly period ended September 30, 2016, that on July 17, 2014,
a class action securities complaint captioned Fletcher v. The
Bancorp Inc., et al., was filed in the United States District
Court for the District of Delaware. A consolidated version of
that class action complaint was filed before the same court on
January 23, 2015 on behalf of Lead Plaintiffs Arkansas Public
Employees Retirement System and Arkansas Teacher Retirement System
under the caption of In Re The Bancorp, Inc. Securities
Litigation. Case No. 14-cv-0952(SLR).
On October 26, 2015, Lead Plaintiffs filed an amended consolidated
complaint against Bancorp, Betsy Z. Cohen, Paul Frenkiel, Frank M.
Mastrangelo and Jeremy Kuiper, which alleges that during a class
period beginning January 26, 2011 through June 26, 2015, the
defendants made materially false and/or misleading statements
and/or failed to disclose that (i) Bancorp had wrongfully extended
and modified problem loans and under-reserved for loan losses due
to adverse loans, (ii) Bancorp's operations and credit practices
were in violation of the Bank Secrecy Act (BSA), and (iii) as a
result, Bancorp's financial statements, press releases and public
statements were materially false and misleading during the
relevant period. The amended consolidated complaint further
alleges that, as a result, the price of Bancorp's common stock was
artificially inflated and fell once the defendants' misstatements
and omissions were revealed, causing damage to the plaintiffs and
the other members of the class. The complaint asks for an
unspecified amount of damages, prejudgment and post-judgment
interest and attorneys' fees.
This litigation is in its preliminary stages. The defendants
filed a motion to dismiss the amended consolidated complaint on
November 23, 2015. Oral argument on the defendants' motion was
held on January 29, 2016 and a court ruling on the motion has been
pending.
The Company said, "On July 27, 2016, we and all other
individually-named defendants entered into a Stipulation and
Agreement of Settlement (Settlement Agreement) with respect to the
consolidated class action. Under the terms of the Settlement
Agreement, we will pay $17.5 million to the plaintiffs as full and
complete settlement of the litigation. All amounts paid by us
will be fully funded by our insurance carriers. All terms of the
Settlement Agreement are subject to court approval which is
pending."
Additional information on the case is available at:
http://www.bancorpsecuritieslitigation.com/
BARCLAYS: Justice Dep't Sues Over Mortgage-Backed Securities
------------------------------------------------------------
The Associated Press reports that the Justice Department on
Dec. 22 sued Barclays Bank PLC and several of its U.S. affiliates
over the sale of risky mortgage-backed securities.
The civil complaint, filed in federal court in Brooklyn, New York,
seeks to recover civil penalties for fraud from the British bank.
It accuses the bank and its employees of misrepresenting the
quality of the loans they sold to tens of thousands of investors
between 2005 and 2007, in the run-up to the country's financial
meltdown. The investors, which included credit unions, pension
plans and university endowments, lost billions of dollars, the
Justice Department said.
The bank falsely assured investors that it had excluded
"unacceptable" loans, and that it had conducted due diligence on
the loan pools that it had securitized, according to the
complaint.
Two former Barclays executives -- a banker and a trader -- were
named as individual defendants in the lawsuit and accused of
playing important roles in the alleged fraud.
"As alleged in this complaint, Barclays jeopardized billions of
dollars of wealth through practices that were plainly
irresponsible and dishonest," Attorney General Loretta Lynch said
in a statement.
In a statement, Barclays said it denied the allegations in the
lawsuit and called the claims in it "disconnected from the facts."
"We have an obligation to our shareholders, customers, clients,
and employees to defend ourselves against unreasonable allegations
and demands," the statement said. The bank will seek to have the
complaint dismissed.
The Dec. 22 action was just the latest taken against banks in the
long aftermath of the 2008 financial crisis. Banks have reached
multibillion-dollar settlements with the government over the sale
of securities that were promoted as safe investments in the
lead-up to the housing market crash, but actually were bundles of
mortgages from borrowers unlikely to be able to repay their loans.
BAYADA HOME: Accused of Underpaying Employees
---------------------------------------------
Jim Walsh at Courier-Post reports that a proposed class-action
lawsuit accuses Bayada Home Health Care Inc. of underpaying
thousands of employees.
The lawsuit, filed by a registered nurse from Pennsylvania,
contends Moorestown-based Bayada violated state and federal wage
laws by failing to pay overtime to its home health clinicians.
It claims Bayada classifies the clinicians -- a group that
includes registered nurses, physical therapists and medical social
workers -- as "overtime exempt." But the suit contends the
workers' pay structure is a "hybrid wage scheme that is plainly
inconsistent with their classification."
It says the former Bayada worker bringing the suit, Stephanie
Higgins of Luzerne County, Pa., was paid on "a combined per visit-
hourly basis" that allowed no overtime.
Attorneys for Higgins, who are recruiting possible class members
through legal ads, seek to represent all people who have worked as
Bayada clinicians over the past three years.
Bayada, which employs more than 18,000 home health care
professionals in 22 states, has denied any wrongdoing.
"We stand behind our pay practices, which are fair and in full
compliance with the law," company spokesman David Totaro said in a
statement. "We will vigorously defend against these allegations."
The lawsuit contends overtime-exempt employees must be paid on a
salary or fee basis.
In contrast, it asserts, Bayada's wage system includes "fixed,
per-visit payments for some work and hourly payments for other
work." It said clinicians received "no compensation at all for
other required tasks," including preparing for patient visits,
traveling between patients' homes and documenting information from
patient visits.
The suit also contends Bayada "routinely" allows clinicians to
exceed a 40-hour workweek.
The lawsuit, filed Nov. 30 in federal court in Scranton, Pa.,
seeks to have a Chicago attorney, James Zouras, appointed to
represent a class of current and former Bayada workers.
It seeks unspecified compensatory damages with interest, as well
as payment of the workers' legal expenses.
Bayada, founded in 1975, in April received approval for state tax
breaks worth $18.4 million to reduce the cost of moving its
headquarters to the Fairway Corporate Center in Pennsauken. The
firm plans to consolidate more than 400 employees and create more
than 100 positions, according to the state Economic Development
Authority.
BEAR STEARNS: Award of Atty's Fees in "Devalerio" Suit Affirmed
---------------------------------------------------------------
The United States Court of Appeals, Second Circuit affirmed the
award of attorneys' fees and reimbursed expenses following a class
action settlement in the case captioned BERMAN DEVALERIO, WOLF
HALDENSTEIN ADLER FREEMAN & HERZ LLP, SCHNADER HARRISON SEGAL &
LEWIS LLP, COHEN, PLACITELLA & ROTH PC, KOHN, SWIFT & GRAF PC,
Appellants, POLICE AND FIRE RETIREMENT SYSTEM OF THE CITY OF
DETROIT, individually and on behalf of all others similarly
situated, WYOMING STATE TREASURER, WYOMING RETIREMENT SYSTEM, CITY
OF PHILADELPHIA BOARD OF PENSIONS AND RETIREMENT, GENERAL
RETIREMENT SYSTEM OF THE CITY OF DETROIT, IOWA PUBLIC EMPLOYEES'
RETIREMENT SYSTEM, LOS ANGELES COUNTY EMPLOYEES RETIREMENT SYSTEM,
PUBLIC EMPLOYEES' RETIREMENT SYSTEM OF MISSISSIPPI, Plaintiffs, v.
JOHN OLINSKI, BLAIR S. ABERNATHY, SAMIR GROVER, SIMON HEYRICK,
VICTOR H. WOODWORTH, BANC OF AMERICA SECURITIES, LLC, J.P. MORGAN
SECURITIES INC., as successor-in-interest to Bear Stearns & Co.,
Inc., CITIGROUP GLOBAL MARKETS INC., COUNTRYWIDE SECURITIES
CORPORATION, CREDIT SUISSE SECURITIES (USA) LLC, DEUTSCHE BANK
SECURITIES INCORPORATED, DEUTSCHE BANK NATIONAL TRUST COMPANY,
GOLDMAN, SACHS & CO., GREENWICH CAPITAL MARKETS, INC., INDYMAC
SECURITIES CORPORATION, LEHMAN BROTHERS INC., MORGAN STANLEY & CO.
INCORPORATED, UBS SECURITIES LLC, JPMORGAN CHASE & CO., RBS
SECURITIES INC., MICHAEL W. PERRY, BANK OF AMERICA CORPORATION, as
successor-in-interest to Merrill Lynch, Pierce, Fenner & Smith,
Inc., COUNTRYWIDE SECURITIES CORPORATION, Defendants-Appellees,
INDYMAC MBS, INCORPORATED, RESIDENTIAL ASSET SECURITIZATION TRUST
2006-A5CB, INDYMAC INDX MORTGAGE LOAN TRUST 2006-AR9, INDYMAC INDX
MORTGAGE LOAN TRUST 2006-AR11, INDYMAC INDX MORTGAGE LOAN TRUST
2006-AR6, RESIDENTIAL ASSET SECURITIZATION TRUST 2006-A6,
RESIDENTIAL ASSET SECURITIZATION TRUST 2006-A7CB, INDYMAC INDX
MORTGAGE LOAN TRUST 2006-AR13, INDYMAC INDB MORTGAGE LOAN TRUST
2006-1, INDYMAC HOME EQUITY MORTGAGE LOAN ASSET-BACKED TRUST,
SERIES 2006-H2, INDYMAC INDX MORTGAGE LOAN TRUST 2006-AR21,
RESIDENTIAL ASSET SECURITIZATION TRUST 2006-A8, INDYMAC INDX
MORTGAGE LOAN TRUST 2006-AR19, INDYMAC INDA MORTGAGE LOAN TRUST
2006-AR1, INDYMAC INDX MORTGAGE LOAN TRUST 2006-AR23, RESIDENTIAL
ASSET SECURITIZATION TRUST 2006-A10, INDYMAC INDX MORTGAGE LOAN
TRUST 2006-AR12, INDYMAC INDX MORTGAGE LOAN TRUST 2006-AR25,
INDYMAC INDX MORTGAGE LOAN TRUST 2006-R1, RESIDENTIAL ASSET
SECURITIZATION TRUST 2006-A11, INDYMAC INDA MORTGAGE LOAN TRUST
2006-AR2, INDYMAC INDX MORTGAGE LOAN TRUST 2006-AR27, INDYMAC HOME
EQUITY MORTGAGE LOAN ASSET-BACKED TRUST, SERIES 2006-H3,
RESIDENTIAL ASSET SECURITIZATION TRUST 2006-A12, INDYMAC INDX
MORTGAGE LOAN TRUST 2006-AR29, INDYMAC INDX MORTGAGE LOAN TRUST
2006-AR31, INDYMAC INDX MORTGAGE LOAN TRUST 2006-FLX1, RESIDENTIAL
ASSET SECURITIZATION TRUST 2006-A13, RESIDENTIAL ASSET
SECURITIZATION TRUST 2006-R2, INDYMAC INDA MORTGAGE LOAN TRUST
2006-AR3, INDYMAC INDX MORTGAGE LOAN TRUST 2006-AR14 (AND 5
ADDITIONAL GRANTOR TRUSTS FOR THE CLASS 1-A1A, CLASS 1-A2A, CLASS
1-A3A, CLASS 1-A3B AND CLASS 1-A4A CERTIFICATES, to be established
by the depositor), RESIDENTIAL ASSET SECURITIZATION TRUST 2006-
A14CB, INDYMAC INDX MORTGAGE LOAN TRUST 2006-AR33, RESIDENTIAL
ASSET SECURITIZATION TRUST 2006-A15, INDYMAC INDX MORTGAGE LOAN
TRUST 2006-AR35, INDYMAC INDX MORTGAGE LOAN TRUST 2006-AR37,
RESIDENTIAL ASSET SECURITIZATION TRUST 2006-A16, INDYMAC INDX
MORTGAGE LOAN TRUST 2006-AR41, INDYMAC INDX MORTGAGE LOAN TRUST
2006-AR39, RESIDENTIAL ASSET SECURITIZATION TRUST, INDYMAC INDX
MORTGAGE LOAN TRUST, INDYMAC INDA MORTGAGE LOAN TRUST 2007-AR1,
RESIDENTIAL ASSET SECURITIZATION TRUST 2007-A1, INDYMAC INDX
MORTGAGE LOAN TRUST 2007-FLX1, RESIDENTIAL ASSET SECURITIZATION
TRUST 2007-A2, INDYMAC INDX MORTGAGE LOAN TRUST 2007-AR1, INDYMAC
INDX MORTGAGE LOAN TRUST 2007-FLX2, RESIDENTIAL ASSET
SECURITIZATION TRUST 2007-A3, INDYMAC INDA MORTGAGE LOAN TRUST,
INDYMAC INDX MORTGAGE LOAN TRUST 2007-AR5, RESIDENTIAL ASSET
SECURITIZATION TRUST 2007-A5, INDYMAC INDX MORTGAGE LOAN TRUST
2007-AR7, INDYMAC INDX MORTGAGE LOAN TRUST 2007-AR9, INDYMAC INDA
MORTGAGE LOAN TRUST 2007-AR2, INDYMAC INDX MORTGAGE LOAN TRUST
2007-FLX3, INDYMAC INDX MORTGAGE LOAN TRUST 2007-AR11, RESIDENTIAL
ASSET SECURITIZATION TRUST 2007-A6, INDYMAC IMSC MORTGAGE LOAN
TRUST 2007-F1, RESIDENTIAL ASSET SECURITIZATION TRUST 2007-A7,
INDYMAC INDX MORTGAGE LOAN TRUST 2007-AR13, INDYMAC INDA MORTGAGE
LOAN TRUST 2007-AR3, INDYMAC INDX MORTGAGE LOAN TRUST 2007-FLX4,
INDYMAC IMJA MORTGAGE LOAN TRUST 2007-A1, INDYMAC IMJA MORTGAGE
LOAN TRUST 2007-A2, RAPHAEL BOSTIC, MOODY'S INVESTORS SERVICE,
INC., THE MCGRAW-HILL COMPANIES, FITCH RATINGS, FITCH
INCORPORATION, Defendants, LYNETTE ANTOSH, INDYMAC INDX MORTGAGE
LOAN TRUST SERIES 2006-AR14, INDYMAC INDX MORTGAGE LOAN TRUST
SERIES 2006-AR2, INDYMAC INDX MORTGAGE LOAN TRUST SERIES 2006-
AR15, INDYMAC INDX MORTGAGE LOAN TRUST SERIES 2006-AR4, INDYMAC
INDX MORTGAGE LOAN TRUST SERIES 2006-AR7, INDYMAC RESIDENTIAL
MORTGAGE BACKED TRUST SERIES 2006-L2, INDYMAC RESIDENTIAL ASSET-
BACKED TRUST SERIES 2006-D, FITCH RATING LIMITED, Consolidated
Defendants, WILLIAM B. RUBENSTEIN, Amicus Curiae, No. 15-1310-cv
(2nd Cir.).
The appellants, law firms representing the plaintiff class,
appealed from an award of attorneys' fees and reimbursed expenses
following a class action settlement. Specifically, they
challenged the decision to award them 8.2% instead of 12.974% of
the $346 million global settlement, the higher percentage falling
within a fee cap that was agreed to ex ante by lead plaintiffs.
They argued that "the fee negotiated ex ante between the Lead
Plaintiff and Lead Counsel is entitled to serious consideration
and a presumption of reasonableness."
The Second Circuit noted that, in arguing that their requested fee
was reasonable, the appellants cited the negotiated agreement but
made no mention of a presumption of reasonableness based upon the
Private Securities Litigation Reform Act of 1995 (PSLRA). The
Second Circuit further observed that although a declaration in
support of the fee application explained the existence of fee
agreements and generally described their terms, the agreements
themselves were never entered into the record.
Thus, the Second Circuit concluded that, even if the presumption
issue presented a pure question of law, as a practical matter, the
district court did not abuse its discretion in failing to apply a
presumption of reasonableness to contract terms that were never
before it.
A full-text copy of the Second Circuit's December 16, 2016 summary
order is available at https://is.gd/HVgc6D from Leagle.com.
SAMUEL ISSACHAROFF -- samuel.issacharoff@nyu.edu -- New York, New
York; (Joseph J. Tabacco, Jr. -- jtabacco@bermandevalerio.com --
on the brief), Berman DeValerio, San Francisco, California,
Appearing for Appellant.
WILLIAM B. RUBENSTEIN, Cambridge, Massachusetts, Appearing as
Appointed Amicus Curiae in Support of Affirmance.
BED BATH: Faces Class Action Over "Fluctuating OT" Formula
----------------------------------------------------------
Craig McCarthy, writing for NJ.com, reports that Bed Bath & Beyond
Inc. is being sued by a group of New Jersey workers claiming the
company has been shorting its employees of overtime pay for years.
The class action lawsuit, filed in Middlesex County Superior
Court, accuses the company of violating New Jersey's Wage and Hour
Law by not paying some of its employees time-and-a-half for hours
worked over 40 hours.
The salaried employees were allegedly paid for overtime work by
the New York company with a "fluctuating OT" formula, which would
reduce the hourly overtime rates the more hours the employee
worked.
The formula divided the employee's weekly base salary by all hours
worked, cut that number in half and then multiplied it by the
number of hours over 40 hours worked, according to the suit.
The class action suit claims the hourly rate for overtime pay
would sometimes come in less than minimum wage, violating New
Jersey's labor laws.
The suit, filed on Oct. 31, also alleges the company improperly
classified some of its workers with the state as exempt employees
as a way to not pay them overtime. Non-exempt employees in the
state are required to be paid 1.5 times his or her regular rate of
pay for any time worked over 40 hours.
The three New Jersey residents filing the suit have worked or
currently still work at various Bed Bath & Beyond locations around
the state since 2010. Similar suits have been filed in other
states.
Bed Bath & Beyond did not respond to calls for comment.
The retailer has 1,020 stores, more than a dozen of which are in
New Jersey, and also operates Christmas Tree Shops, That! or and
That!, Harmon, buybuy Baby and World Market.
The lawsuit seeks alleged unpaid overtime to the people who filed
the suit and other current and former Bed Bath & Beyond employees.
BELLAMY'S: Slater & Gordon Mulls Investor Class Action
------------------------------------------------------
Daniel Palmer, writing for The Australian, reports that Bellamy's
has been hit with the threat of a second class action in as many
days, with law firm Slater and Gordon following rival Maurice
Blackburn in laying the groundwork for a potential multi-million-
dollar claim.
Slater and Gordon said it had teamed with litigation funder IMF
Bentham Limited to consider a claim against the troubled infant
milk group, on behalf of investors who acquired shares in the
company between April 14 and December 9 this year.
The potential suit closely mirrors an announcement from Maurice
Blackburn on Dec. 14, although notably Slater and Gordon is also
chasing investors who bought between December 1 and December 9.
The activity comes after Bellamy's shares plunged around 42 per
cent in one day on December 2, thanks to a horror trading update
that revealed sales growth would be non-existent in fiscal 2016.
Analysts had anticipated sales expansion of around 40 per cent
prior to the Bellamy's statement.
It then followed up with a trading halt on Dec. 12 that promised
further details on the impact of trading conditions on its
forecasts.
A trading suspension was put in place on Dec. 14 as that update
failed to be prepared in time, with investors now forced to wait
Dec. 21 before further details are likely to emerge.
"The suspension is necessary for the company to manage its
continuous disclosure obligations whilst it continues with a
review in order to finalise an updated announcement of the impact
of trading conditions on the company's expected financial
results," a Bellamy's statement read.
Slater and Gordon's decision to extend its potential suit to
traders who bought up until December 9 suggests confidence they
believe the upcoming announcement will be bleak.
The firm's senior class actions lawyer Mathew Chuk said its early
investigations had pointed to a failure to suitably disclose the
company's risks and challenges to the market.
"Bellamy's had a reputation as a quality company selling quality
product," he said.
"Our investigations to date suggest that the company prioritised
preserving that reputation at the expense of properly disclosing
to investors the risks and challenges that the company was facing
at home and in China.
"Furthermore, we are investigating whether Bellamy's repeated
statements to the market since April 2016 regarding its likely
performance in China had the effect of misleading shareholders."
IMF investment manager Simon Dluzniak said Bellamy's shareholders
had a right to be aggrieved by recent developments, but he stopped
short of saying the proceedings will push forward as the wait for
Bellamy's fresh update continues.
"The market's reaction to the announcement made two weeks ago was
severe and shareholders are understandably nervous about the
company's next announcement," he said.
"Investors will have lost hundreds of millions of dollars from
purchasing Bellamy's shares in a potentially misinformed market.
We are investigating whether a class action is a viable option to
recoup those losses."
With lawsuits in the offing and shares suspended, the former
market darling is facing a critical loss of investor confidence
that places intense scrutiny on previously lauded key executives.
The view of leading personnel has not been helped by an August
disposal of shares by chief executive Laura McBain and chairman
Rob Woolley.
Just two weeks after an upbeat full-year report, Ms McBain shed
$2.4 million worth of stock on August 29, the same time as Mr
Woolley divested $2.9m worth at a strike price above $14.
The company then remained relatively positive on conditions
through its annual general meeting in October before surprising
the market almost two weeks ago.
Ms McBain and Mr Woolley also got rid of a combined $5.8m worth of
shares in March when Bellamy's shares were valued around $10.50.
Bellamy's shares last traded at $6.68.
BELLAMY'S: More Than 200 People Sign Up for Class Action
--------------------------------------------------------
Nick Clark, writing for Mercury, reports that more than 200 people
have registered for a potential class action against Bellamy's
Australia Limited over the dramatic fall in its share price.
Victorian law firm Maurice Blackburn publicised a potential class
action on behalf of shareholders against the infant milk formula
maker on Dec. 14.
Bellamy's shares dropped from $12.09 to $6.68 on December 2 after
issuing a business update which referred to "temporary volume
dislocation" and price problems in the China market.
The Launceston-based company's shares are suspended until December
21 while management gathers more detail on its likely results for
the second half of the financial year.
The Australian Securities Exchange has already queried the company
on whether it made the market aware as soon as the information was
known.
Maurice Blackburn is investigating a claim against Bellamy's for
alleged breaches of its continuous disclosure obligations and its
conduct regarding its infant formula trade with China.
"When the company eventually informed the market of its lower than
expected revenue in December this year, the share price almost
halved in a single day and Bellamy's market capitalisation was
slashed by over $500 million in the two trading days that
followed," class action principal Ben Slade said.
Maurice Blackburn has suggested that people who purchased shares
this year between April 14 and December 1 may be eligible to
participate.
Bellamy's told the market on December 2 that its expected revenue
would be about $240 million for 2016-17, down from a forecast of
$240-260 million in May and down from analysts' consensus of $360-
380 million.
CANADA: School Boards Have Until Jan. 5 to Appeal Fee Case Ruling
-----------------------------------------------------------------
Stephanie Azran and Robert Frank, writing for The Suburban, report
that a busy Hudson mother took time on Dec. 12 to talk to The
Suburban about the costs of putting her kids through school.
Sheila Boardman, like many parents, pays fees at the beginning of
every school year for activities and consumables; in her case, the
cheque of $120 goes to the Commission Scolaire des Trois-Lacs.
"There are extras like lunches, or trips, but again, they come at
the beginning at the year," Ms. Boardman said.
There are parents in the province who see the situation as far too
onerous. These parents, led by Jonquiere mother Daisye Marcil,
are now the plaintiffs in a class-action lawsuit launched on
behalf of the parents of 900,000 students who have been charged
for extras since the 2008-2009 school year. Ms Marcil believes
that school fees are abusive and that the Quebec Education Act
promises free elementary and high school education; however, a
glance at the letter that accompanies most school fee bills
reveals that: "The Education Act of Quebec authorizes schools to
collect consumable materials fees for each student in its
jurisdiction on an annual basis."
Examples of extras and consumable fees include school outings and
activities, but also some materials (agendas, photocopies, math
workbooks, and taxes for these items), as well as supervision.
This, of course, is on top of school supplies. Some parents are
also asked to purchase iPads (at a cost of around $300) as a
replacement for school supplies, but as Boardman found out from
parents at the local soccer field, even that is not working.
"They said the teachers told them they wouldn't have any supplies
to buy, but then throughout the year they're asked to buy pencils
and colouring things," she said.
Jennifer Maccarone, president of the Quebec English School Boards
Association chair of the Sir Wilfrid Laurier school board, is
another parent who feels that the extras are just too much for
most families. She feels strongly that parents should not have to
support basic participation requirements to ensure their
children's' success.
"From a parent's perspective it's tough. I pay $800 a year.
That's a lot of money. It's very challenging to ask parents to pay
for those kinds of things," she told The Suburban.
Sixty-eight boards across the province including Lester B.
Pearson, Sir Wilfrid Laurier, English Montreal, Marguerite-
Bourgeoys and Montreal, are named in the suit.
Should Ms Marcil and other members win the case, headed up by
former premier Lucien Bouchard, parents could be reimbursed for
fees in addition to $100 in punitive damages. Quebec Superior
Court judge Justice Carl Lachance in Chicoutimi authorized the
suit. School boards have until January 5 to appeal the decision.
CANADA: Ontario Court Certifies Mentally Ill Inmates' Action
------------------------------------------------------------
Alex Ballingall, writing for Toronto Star, reports that a $600-
million class-action lawsuit was certified in an Ontario court,
opening the door for thousands of prison inmates with diagnosed
mental illnesses to seek compensation for their alleged
mistreatment in federal jails.
The lawsuit alleges Canada's federal prison agency fails to
properly care for mentally ill inmates, relies too much on the
"cruel and unusual punishment" of solitary confinement, and
neglects to adequately train its staff. Superior Court Justice
Paul Perell ruled that the lawsuit should go ahead in a decision
released on Dec. 14.
"It's an incredibly vulnerable population," said James Sayce, a
lawyer for the plaintiffs who expects "tens of thousands" of
current and former inmates to join the class action against the
federal justice ministry.
"It's a group of people who are often ignored by most of society,"
he said. "They're people who are often subjected to solitary
confinement for months and years as a result of their mental and
medical conditions."
Chris Brazeau, one of the lead plaintiffs in the suit, said in a
statement through his lawyer that he has a "duty" to participate
in the class action.
"In my own case, I remember asking myself, 'How much more of this
can I take?' I must have asked myself 500 times, before I reached
my breaking point. I now know what it feels like to want to die.
I know what it feels like to have no hope and no options," said
Mr. Brazeau, 34, who claims to have spent periods of up to a year
in solitary confinement during his 12-year sentence at an Edmonton
jail.
A spokesperson for the federal justice ministry referred questions
on the lawsuit to the Correctional Service of Canada, the agency
responsible for federal prisons.
In an emailed statement, Corrections spokesperson Veronique Rioux
said "effective and timely" treatment for inmates with mental
illness is a priority for the agency. Front-line staff are
trained to "understand the mental health needs of offenders," and
$77 million was "invested" to address the needs of these inmates
during the 2015/16 fiscal year, she said.
Ms. Rioux added that segregation -- the term the government uses
for solitary confinement -- is a legally available tool that is
used to "manage risk," either to the inmate or staff, and is not a
punitive measure. She said there are ongoing reviews of an
inmate's placement in solitary confinement, including on their
physical and mental health, and that the agency is legally
required to remove them from segregation "at the earliest time."
She would not discuss the newly-certified lawsuit, because it "is
currently before the courts."
The lawsuit arrives at a time of heightened concern over the use
of solitary confinement in provincial and federal jails,
particularly when it involves inmates with mental illness. In his
mandate letter to the justice minister after he came to power last
year, Prime Minister Justin Trudeau called for restricted use of
solitary confinement and the improved treatment of mentally ill
inmates, as recommended by inquests into the death of Ashley
Smith, a 19-year-old who strangled herself in 2007 after more than
1,000 days in segregation.
The B.C. Civil Liberties Association and John Howard Society
launched their own lawsuit in 2015, alleging the use of solitary
confinement in federal prisons violates prisoners' charter rights
to life, liberty and security of the person.
In Ontario, the issue caused a storm this fall when the province's
human rights commissioner revealed how Adam Capay, a 24-year-old
with mental illness who is charged with murdering another inmate,
was kept in solitary confinement at the Thunder Bay Jail -- a
provincial facility -- for almost four years.
The United Nations considers 15 straight days of solitary
confinement to be a form of torture.
Eligible class-action participants must have been in a federal
prison at some point since Nov. 1, 1992, and been diagnosed with a
mental illness during or before their time in jail, according to
Justice Perrell's decision.
Alongside Mr. Brazeau, the other lead plaintiff in the case is
David Kift, a 58-year-old former Mountie who is now serving a six-
year sentence at the Joyceville Institution for "gun possession-
related" crimes, according to the statement of claim. He is
diagnosed with PTSD and depression, and the statement of claim
alleges that he has endured "long periods" without his medication
and has been held in solitary confinement.
"You become unfit to function in a social way," Mr. Brazeau said
in his statement to the Star. "That is a prerequisite to live.
You need social skills to survive. Solitary confinement removes
that."
CANADA: Former Military Members Allege Racism, Harassment
---------------------------------------------------------
Huffington Post reports that three former members of the Canadian
Forces have filed a proposed class action lawsuit against the
military, alleging they suffered systemic racism and harassment
that were tolerated by their superior officers.
The case was filed in Federal Court in Halifax by Marc Frenette,
Wallace Fowler and Jean-Pierre Robillard on Dec. 14.
Frenette, a 39-year-old from Ontario, claims his career in
aircraft maintenance was going well until colleagues discovered he
is aboriginal, which provoked a series of racial slurs, rejected
requests for leave and training, physical abuse and insults about
his heritage.
Frenette, who has been diagnosed with post-traumatic stress
disorder, alleges in the 31-page claim that he was told by
superiors to laugh off the racist behaviour and not take his
complaints up the chain of command.
Fowler, a 43-year-old black man from Nova Scotia, alleges abuse he
and his family suffered included being called racial epithets,
having his step-children spat on and his spouse having bananas
thrown at her at Canadian Forces Base Esquimalt.
Robillard, a black man from Haiti who was raised in New Brunswick,
says during his service in the regular force, he was routinely
called racial slurs from his unit members and that when he
complained to his commanding officer, he was assigned to latrine
and cleaning duty.
None of the allegations in the claim have been tested in court.
CANYON RIDGE: Summary Judgment in Atty Fee Dispute Affirmed
-----------------------------------------------------------
In the case captioned DUKE GERSTEL SHEARER, LLP, Plaintiff and
Appellant, v. DAVID T. PURSIANO et al., Defendants and
Respondents, No. D068633 (Cal. Ct. App.), the Court of Appeals of
California, Fourth District, Division One affirmed the superior
court's judgment in favor of the respondents, David T. Pursiano
and Laurel L. Barry, after the court granted the respondents'
motion for summary judgment.
Duke Gerstel Shearer, LLP is a San Diego based law firm that
maintained satellite offices in Las Vegas, Nevada and Phoenix,
Arizona. Eric W. Sachrison, the managing partner of Duke's
Arizona office, entered into a written contingency fee agreement
with certain homeowners who were members of the class in a
construction defect class action in a housing development known as
Canyon Ridge.
Sachrison filed the original complaint on behalf of the Canyon
Ridge clients in the Canyon Ridge class action in Arizona Superior
Court and managed that case until his sudden death in May 2003.
In June 2003, Pursiano, then a partner in Duke's Nevada office and
Barry, then an associate attorney in Duke's Nevada office,
resigned from Duke.
Duke claimed that Sachrison's widow, Trinette Sachrison, Arizona
attorney Michael N. Poli, Pursiano, and Barry conspired to
convince the Canyon Ridge clients to terminate their
representation by Duke. In July 2003, the Canyon Ridge clients
terminated their representation by Duke and retained Poli's law
firm. Thereafter, Pursiano and Barry, and several other co-
counsel appeared pro hac vice in the Canyon Ridge class action.
Pursiano and Barry, together with co-counsel Poli, Trinette
Sachrison, Stanley G. Feldman, and Joseph L. Oliva, litigated the
Canyon Ridge class action for about five years until it was
settled on September 23, 2008. Duke was not representing any of
the Canyon Ridge clients at that time.
Following a reasonableness hearing, the Arizona Superior Court
awarded the current class counsel, consisting of attorneys
Pursiano, Barry, Poli, Feldman and Oliva, their 38% contingency
fee.
Duke sued the respondents alleging causes of action for money had
and received as well as conversion. In that complaint, Duke
alleged that it was entitled to $1.1 million of the $1.2 million
received by the respondents.
The respondents subsequently moved for summary judgment,
predominately arguing that Duke's claims fail because Duke did not
establish the enforceability and amount of the lien on which it
based both its causes of action. In its opposition, Duke asserted
that it had a contingency fee agreement with its former clients
that gave it a lien sufficient to maintain its two causes of
action.
The superior court found that Duke could not demonstrate the
amount and enforceability of any attorney fees lien with any
admissible evidence. As such, the court granted the respondents'
motion for summary judgment and subsequently entered judgment in
favor of the respondents.
Duke timely appealed, contending that the superior court erred in
finding that Duke had to first sue its former clients to establish
the validity and amount of its attorney fee lien before it could
maintain its causes of action for money had and received as well
as conversion against the respondents, who replaced Duke as
counsel.
The appellate court held that the superior court was correct to
follow Mojtahedi v. Vargas (2014) 228 Cal.App.4th 974 and grant
the respondent's summary judgment motion. Duke claimed that the
Arizona court had the jurisdiction to award it attorney fees as
well as determine the validity and amount of Duke's lien. However,
the appellate court noted that Duke did not move for its attorney
fees in the Canyon Ridge class action, nor bring a motion in that
case to determine the validity and amount of its lien. The
appellate court thus held that for Duke to establish the validity
and amount of its lien, Duke needed to sue the Canyon Ridge
clients for declaratory relief.
The appellate court also pointed out that even Duke's retainer
agreements with the Canyon Ridge clients set forth a mechanism by
which Duke and the Canyon Ridge clients would determine the
reasonable value of Duke's services if the clients were to
terminate Duke's representation of them prior to obtaining a
settlement. Under the retainer agreements, if the clients
terminated Duke's services prior to the resolution of the action,
then the clients and Duke would meet and confer to agree on the
value of Duke's services. If they could not agree, then the
parties consented to submit the dispute to binding arbitration to
establish the reasonable value of Duke's services.
It is undisputed that Duke has not sued its former clients to
establish the validity and amount of its attorney fees lien.
Accordingly, the appellate court agreed with the superior court
that summary judgment was warranted.
A full-text copy of the appellate court's December 16, 2016 ruling
is available at https://is.gd/YeS7nu from Leagle.com.
Duke Gerstel Shearer, Andrew F. Lloyd and Katherine Dwyer for
Plaintiff and Appellant.
Seltzer Caplan McMahon Vitek, Reginald A. Vitek -- vitek@scmv.com
-- and Andrea N. Myers -- myers@scmv.com -- for Defendants and
Respondents.
CEMPRA INC: Jan. 3 Lead Plaintiff Bid Deadline in V. Wong Suit
--------------------------------------------------------------
The Law Offices of Vincent Wong disclosed that a class action
lawsuit has been commenced in the USDC for the Middle District of
North Carolina on behalf of investors who purchased Cempra, Inc.
(NASDAQ: CEMP) securities between October 22, 2015 and November 1,
2016.
According to the complaint, during the Class Period, Cempra made
false and/or misleading statements and/or failed to disclose that:
(i) Cempra's lead product candidate solithromycin posed
significant safety risks for hepatotoxicity; and (ii) as a result
of the foregoing, Cempra's public statements were materially false
and misleading at all relevant times.
On November 2, 2016, the U.S. Food and Drug Administration posted
a preliminary review of solithromycin, highlighting a significant
safety signal for hepatotoxicity. Upon this news, shares of Cempra
fell over 60% during intraday trading.
If you suffered a loss in Cempra you have until January 3, 2017 to
request that the Court appoint you as lead plaintiff. Your ability
to share in any recovery doesn't require that you serve as a lead
plaintiff. To obtain additional information, contact Vincent Wong,
Esq. either via email -- vw@wongesq.com -- by telephone at
212.425.1140, or visit http://www.wongesq.com/pslra/cempra.
Vincent Wong, Esq. is an experienced attorney that has represented
investors in securities litigations involving financial fraud and
violations of shareholder rights. Attorney advertising. Prior
results do not guarantee similar outcomes.
CHC GROUP: Rudman Seeks Second Circuit Review of S.D.N.Y Ruling
---------------------------------------------------------------
Plaintiffs Errol Rudman, Peter McCrory and Rudman Partners L.P.
filed an appeal from the District Court opinion dated November 7,
2016, and District Court judgment dated November 9, 2016, in their
lawsuit styled Rudman v. CHC Group Ltd., Case No. 15-cv-3773, in
the U.S. District Court for the Southern District of New York (New
York City).
As previously reported in the Class Action Reporter on Nov. 28,
2016, District Judge Lewis A. Kaplan dismissed the Case. In the
Memorandum Opinion dated November 9, 2016, available at
https://is.gd/vc9JI0 from Leagle.com, Judge Kaplan held that
defendants' joint motion to dismiss the consolidated amended
complaint is granted to the extent that the action is dismissed as
against all defendants except CHC and denied as to CHC only on the
ground that the continuation of the action as against it is
precluded by 11 U.S.C. Section 362(a).
The Plaintiffs brought the putative securities class action
against CHC Group Ltd. (CHC), several of its officers and
directors, and the underwriters of CHC's January 16, 2014 initial
public offering (IPO). They allege that the IPO registration
statement omitted certain material facts, in violation of Sections
11, 12(a)(2), and 15 of the Securities Act of 1933.
The appellate case is captioned as Rudman v. CHC Group Ltd., Case
No. 16-4096, in the United States Court of Appeals for the Second
Circuit.
Plaintiffs-Appellants Errol Rudman, Rudman Partners L.P., and
Peter McCrory, on behalf of all other similarly situated, are
represented by:
Ira M. Press, Esq.
KIRBY MCINERNEY LLP
825 3rd Avenue
New York, NY 10022
Telephone: (212) 371-6600
E-mail: ipress@kmllp.com
Defendants-Appellees CHC Group Ltd., William J. Amelio, Joan S.
Hooper, Rebecca Camden, William E. Macaulay, Jonathan Lewis and
Kenneth W. Moore are represented by:
Neil A. Steiner, Esq.
DECHERT LLP
1095 Avenue of the Americas
New York, NY 10036
Telephone: (212) 698-3671
E-mail: neil.steiner@dechrt.com
Defendants-Appellees J.P. Morgan Securities LLC, Barclays Capital
Inc., UBS Securities LLC, HSBC Securities (USA) Inc., RBC Capital
Markets, LLC, Wells Fargo Securities, LLC, BNP Paribas Securities
Corp., Standard Bank Plc, Cormark Securities Inc., Cowen and
Company, LLC, Raymond James & Associates, Inc., Simmons & Company
International and Tudor, Pickering, Holt & Co. Securities, Inc.,
are represented by:
Charles Duggan, Esq.
DAVIS POLK & WARDWELL LLP
450 Lexington Avenue
New York, NY 10017
Telephone: (212) 450-4785
E-mail: charles.duggan@davispolk.com
CHEMTURA CORP: Being Sold Too Cheaply, Shareholder Suit Says
------------------------------------------------------------
Robert Khan, writing for Courthouse News Service, reported that
directors are selling Chemtura Corp. too cheaply through an unfair
process to Laxness, for $35.50 a share or $2.1 billion,
shareholders say in Philadelphia, Federal Court.
The case is, PATTERSON v. CHEMTURA CORPORATION, INC. et al., Case
No. 2:16-cv-06626 (E.D. Pa., December 27, 2016). The Hon. Eduardo
C Robreno presides over the case.
Darcy J. Patterson is represented by:
Kenneth I. Trujillo, Esq.
Matthew S. Olesh, Esq.
CHAMBERLAIN HRDLICKA WHITE WILLIAMS & AUGHTRY
300 Conshohocken State Road, Suite 570
West Conshohocken, PA 19428
Tel: (610) 772-2300
Fax: (610) 772-2305
Email: molesh@chamberlainlaw.com
- and -
LEVI & KORSINSKY LLP
Donald E. Enright, Esq.
1101 30th Street NW, Suite 115
Washington, DC 20007
Tel: (202) 524-4290
Fax: (202) 337-1567
Email: denright@zlk.com
CHIASMA INC: Robbins Geller, Johnson & Weaver Named Lead Counsel
----------------------------------------------------------------
In the case, JOHN J. GERNETH, Individually and on Behalf of All
Others Similarly Situated, Plaintiff, vs. CHIASMA, INC., et al.,
Defendants, No. 1:16-cv-11082-DJC (D. Mass.), Judge Denise J.
Casper entered an order:
-- appointing Laurent Sberro, individually and as owner and
authorized representative of Wetherby International, Inc. and
Falcon Capital Management, as lead plaintiff pursuant to the
Private Securities Litigation Reform Act of 1995, 15 U.S.C. Sec.
78u-4, et seq. ("PSLRA"); and
-- approving his selection of Robbins Geller Rudman & Dowd
LLP and Johnson & Weaver, LLP as lead counsel and Hutchings
Barsamian Mandelcorn, LLP as local counsel for the class.
In its Form 10-Q Report filed with the Securities and Exchange
Commission on November 9, 2016, for the quarterly period ended
September 30, 2016, the Company said, "On June 9, 2016, Chiasma,
Inc. and certain of our current and former officers were named as
defendants in a purported federal securities class action lawsuit
filed in the United States District Court for the District of
Massachusetts, styled Gerneth v. Chiasma, Inc., et al. This
lawsuit challenges our public statements regarding our Phase 3
clinical trial methodology for Mycapssa (octreotide) capsules and
our ability to obtain FDA approval for the marketing and sale of
Mycapssa, in violation of Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934, as amended, and Rule 10b-5
promulgated thereunder, and Sections 11 and 15 of the Securities
Act of 1933, as amended. The plaintiff seeks to represent a class
consisting of all purchasers of our common stock from July 15,
2015 to April 17, 2016. A lead plaintiff has not yet been
appointed in the case.
"We believe this lawsuit is meritless and intend to vigorously
defend against it. At this time, no assessment can be made as to
the likely outcome of this lawsuit or whether the outcome will be
material to us."
Plaintiff John J. Gerneth, Individually and on behalf of all
others similarly situated, is represented by:
Jason M. Leviton, Esq.
Block & Leviton LLP
155 Federal Street, Suite 1303
Boston, MA 02110
Tel: 617-398-5600
Fax: 617-507-6020
Email: jason@blockesq.com
Defendant Chiasma is represented by:
David B. Hennes, Esq.
Ropes & Gray LLP - NY
1211 Avenue of the Americas
New York, NY 10036-8704
Tel: (212) 596-9395
Email: david.hennes@ropesgray.com
- and -
John D. Donovan , Jr., Esq.
Ropes & Gray LLP - MA
Prudential Tower
800 Boylston St.
Boston, MA 02199-3600
Tel: 617-951-7566
Fax: 617-951-7050
Email: jdonovan@ropesgray.com
- and -
Amy D. Roy, Esq.
Ropes & Gray - MA
Prudential Tower
800 Boylston Street
Boston, MA 02199-3600
Tel: 617-951-7445
Email: amy.roy@ropesgray.com
Laurent Sberro is represented by:
ROBBINS GELLER RUDMAN & DOWD LLP
BRIAN O. O'MARA, Esq.
655 West Broadway, Suite 1900
San Diego, CA 92101
Tel: 619/231-1058
Fax: 619/231-7423
E-mail: bomara@rgrdlaw.com
- and -
JOHNSON & WEAVER, LLP
FRANK J. JOHNSON, Esq.
600 West Broadway, Suite 1540
San Diego, CA 92101
Tel: 619/230-0063
Fax: 619/255-1856
E-mail: frankj@johnsonandweaver.com
- and -
HUTCHINGS BARSAMIAN MANDELCORN, LLP
THEODORE M. HESS-MAHAN, Esq.
110 Cedar Street, Suite 250
Wellesley Hills, MA 02481
Tel: 781/431-2231
Fax: 781/431-8726
E-mail: thess-mahan@hutchingsbarsamian.com
The Company is a biopharmaceutical company focused on improving
the lives of patients suffering from orphan diseases by developing
and commercializing novel oral forms of therapies that are
available today only by injection.
CHINA XD: Securities Class Action Underway
------------------------------------------
A consolidated class action lawsuit against China XD Plastics
Company Limited remains pending, the Company said in its Form 10-Q
Report filed with the Securities and Exchange Commission on
November 9, 2016, for the quarterly period ended September 30,
2016.
The Company and certain of its officers and directors have been
named as defendants in two putative securities class action
lawsuits filed in the United States District Court for the
Southern District of New York. These actions, which allege
violations of Section 10(b) and Section 20(a) of the Securities
Exchange Act of 1934, were filed on July 15, 2014 and July 16,
2014 and are captioned Yang v. Han, et al., No. 14-cv-5308 (GBD)
and Tompkins v. China XD Plastics Company Ltd., et al., No. 14-cv-
5359 (GBD), respectively. On November 21, 2014, the Court
consolidated the actions and appointed lead plaintiffs.
On February 17, 2015, the lead plaintiffs filed a Consolidated
Class Action Complaint on behalf of a class of all persons other
than the defendants who purchased the common stock of China XD
Plastics Company Limited between March 25, 2014 and July 10, 2014,
both dates inclusive. Specifically, the lead plaintiffs alleged
that the Company and two of its officers made false or misleading
statements and/or omitted material facts in the Company's Form 10-
K for the year ended December 31, 2013 and the Company's Form 10-Q
for the first quarter ended March 31, 2014. They also asserted
that the individual defendants are liable because they allegedly
controlled the Company during the time the allegedly false and
misleading statements and omissions were made. The lead
plaintiffs sought damages in unspecified amounts.
On April 3, 2015, the Company moved to dismiss the Consolidated
Class Action Complaint. On March 23, 2016, the Court entered an
Opinion and Order dismissing the Consolidated Class Action
Complaint without prejudice. On May 6, 2016, the lead plaintiffs
moved the Court for leave to amend the Consolidated Class Action
Complaint.
On June 24, 2016, the Company filed its opposition to the lead
plaintiffs' motion. On August 8, 2016, in conjunction with filing
the reply brief in support of their motion, the lead plaintiffs
moved to strike certain documents referred to in the Company's
opposition. The Company filed its opposition to the lead
plaintiffs' motion to strike on September 16, 2016. The lead
plaintiffs filed their reply on October 7, 2016.
Management believes the proposed amendment is without merit and
intends to vigorously defend against it.
The Company sells its products primarily through approved
distributors in the People's Republic of China (the "PRC"). To a
lesser extent, the Company also sells its products to an overseas
customer in the Republic of Korea (the "ROK").
COMCEPT: Mighty No. 9 Kickstarter Backers Mull Class Action
-----------------------------------------------------------
Gen Que, writing for Itechpost, reports that Mighty No. 9 has
shown a lot of promise when its developers debuted it to look for
backers. Many saw that promise and decided to back the project
with the promise to launch the game in 2016. It did launch but
with a lot of problems and the backers are now in unrest with
plans to sue the company.
Since its release in July, the Mega Man spin-off has been fraught
with controversies and problem after the developers failed to hand
the goods they have been promised. Just like any Kickstarter
backed project, backers were promised some rewards based on the
amount they gave. Some of those were promised a physical copy of
the game.
However, backers are complaining that they have been scammed
because they haven't received any physical copy of the game until
now. The comment section of the Kickstarter page have been busy
with most of the comments expressing their dismay. Some even
threatened to sue Comcept.
What made the backers seething with rage was the lack of response
from the developers. He said that aside from not getting
anything, Comcept seems not to care enough to send a message to
them.
It can be remembered that before its release, the game has already
experienced a lot of controversies with Keiji Inafune, head of
Comcept, announced that the delay was due to the difficulty in
working with the engine. However, no on believed him since it is
the same engine used for Mortal Kombat.
What happened to Mighty No. 9 is not rare in the crowdsourcing
community. However, this one seemed to be the most controversial
recently because of the hype involved in the project. Hopefully,
Inafune and his team at Comcept will have the balls to face their
backers and tell them what really happened.
DAKOTA PLAINS: Wolf Haldenstein Files Securities Class Action
-------------------------------------------------------------
Wolf Haldenstein Adler Freeman & Herz LLP disclosed that a class
action lawsuit has been filed against Dakota Plains Holdings, Inc.
("Dakota Plains" or the "Company") (OTC PINK: DAKP) in the United
States District Court for the Southern District of New York on
behalf of purchasers of the common stock of Dakota Plains between
March 23, 2012 through August 15, 2016 (the "Class Period"),
inclusive. Those investors who purchased shares pursuant to the
Secondary Public Offering ("SPO") on December 11, 2013 are
included within the class period and are urged to reply as soon as
possible.
Investors who have incurred losses in Dakota Plains Holdings, Inc.
are urged to contact the firm immediately at classmember@whafh.com
or (800) 575-0735 or (212) 545-4774. You may also review the filed
complaint and obtain additional information concerning the action
on our website, www.whafh.com.
If you purchased shares of Dakota Plains Holdings, Inc. within the
class period and suffered losses, you may, no later than February
14, 2017, request that the Court appoint you lead plaintiff of the
proposed class.
The filed complaint accuses the defendants of violations of the
Securities Exchange Act of 1934 by virtue of the defendants'
failure to disclose during the Class Period that Ryan Gilbertson
and Michael L. Reger, co-founders of a different Dakota Plains
company, had control of Dakota Plains' business and operations,
that Dakota Plains and its management worked with Gilbertson and
Reger to misuse the Company's assets for Gilbertson and Reger's
sole benefits, and that Dakota Plains did not maintain effective
and adequate internal control.
On December 21, 2016, Dakota Plains Holdings, Inc. announced that
it and six of its wholly owned subsidiaries filed voluntary
Chapter 11 petitions in the United States Bankruptcy Court for the
District of Minnesota (the "Bankruptcy Court").
Wolf Haldenstein has extensive experience in the prosecution of
securities class actions and derivative litigation in state and
federal trial and appellate courts across the country. The firm
has attorneys in various practice areas, and offices in New York,
Chicago, and San Diego. The reputation and expertise of this firm
in shareholder and other class litigation has been repeatedly
recognized by the courts, which have appointed it to major
positions in complex securities multi-district and consolidated
litigation.
If you wish to discuss this action or have any questions regarding
your rights and interests in this case, please immediately contact
Wolf Haldenstein Adler Freeman & Herz LLP by telephone at (800)
575-0735, via e-mail at classmember@whafh.com, or visit our
website at www.whafh.com.
ENERGY TRANSFER: Still Faces Unitholder Litigation in Delaware
--------------------------------------------------------------
Energy Transfer Equity, L.P. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on November 9, 2016,
for the quarterly period ended September 30, 2016, that a hearing
on the cross-motions for partial summary judgment was set for
November 9, 2016, in the Unitholder litigation relating to the
issuance of ETE's Series A Convertible Preferred Units.
In April 2016, two purported ETE unitholders (the "Issuance
Plaintiffs") filed putative class action lawsuits against, Energy
Transfer Equity, L.P. and LE GP, LLC, Kelcy Warren, John
McReynolds, Marshall McCrea, Matthew Ramsey, Ted Collins, K. Rick
Turner, William Williams, Ray Davis, and Richard Brannon in the
Delaware Court of Chancery. These lawsuits have been consolidated
as In re Energy Transfer Equity, L.P. Unitholder Litigation,
Consolidated C.A. No. 12197-VCG, in the Court of Chancery of the
State of Delaware. One of the Issuance Plaintiffs had initially
filed an action to inspect the books and records of ETE on April
11, 2016 but voluntarily dismissed the books and records action on
April 22, 2016.
The Issuance Plaintiffs allege that the Issuance breached various
provisions of ETE's limited partnership agreement. The Issuance
Plaintiffs seek, among other things, preliminary and permanent
injunctive relief that (a) prevents ETE from making distributions
to the Convertible Units and (b) invalidates an amendment to ETE's
partnership agreement that was adopted on March 8, 2016 as part of
the issuance of Convertible Units.
Another purported ETE unitholder, Chester County Employees'
Retirement Fund, joined the consolidated action as an additional
plaintiff of April 25, 2016.
On July 6, 2016, Bowood withdrew from the consolidated action. The
parties engaged in discovery, and Plaintiffs filed a consolidated
amended complaint on August 29, 2016. In addition to the
injunctive relief, Plaintiffs seek class-wide damages allegedly
resulting from the Convertible Unit issuance.
On September 28, 2016, Defendants and Plaintiffs filed cross-
motions for partial summary judgment. A hearing on the parties'
motions was set for November 9, 2016.
No further updates were provided in the Company's SEC report.
GALECTIN THERAPEUTICS: Dismissal of "Hotz" Suit Affirmed
--------------------------------------------------------
The United States Court of Appeals, Eleventh Circuit affirmed the
district court's Rule 12(b)(6) dismissal of the case captioned In
Re: Galectin Therapeutics, Inc. Securities Litigation, MARISSA
BALLESTEROS, et al., Plaintiffs, GLYN HOTZ, Lead Plaintiff,
Plaintiff-Appellant, v. GALECTIN THERAPEUTICS, INC., JAMES C.
CZIRR, PETER G. TRABER, JACK W. CALLICUTT, 3:14-cv-402-RCJ-WGC,
ROD D. MARTIN, JOHN F. MAULDIN, 10x FUND L.P. Member Case 3:14-cv-
402-RCJ-WGC, et al., Defendants-Appellees, GILBERT F. AMELIO,
Member Case 3:14-cv-402-RCJ-WGC, et al., Defendants, No. 16-10324
(11th Cir.).
On February 26, 2014, Glynn Hotz purchased 16,000 shares of common
stock fromm Galectin Therapeutics, Inc. at $17.90 per share. On
July 28, 2014, Galectin's stock price crashed. Galectin's stock
lost over half its value, falling from a price of $15.91 per share
to $7.10 per share in one day.
After suffering stock losses, Hotz filed a consolidated class
action complaint against Galectin on May 8, 2015. Hotz alleged
that Galectin, along with several of its officers and directors,
committed securities fraud in violation of section 10(b) of the
Securities and Exchange Act of 1934 and implementing Rule 10b-
5(b). There is no allegation that the articles were false.
Rather, Hotz argued that Galectin made material misstatements and
omissions of fact by not disclosing that it had paid promotional
firms to tout Galectin stock.
Hotz alleged that certain Galectin officers and directors were
liable for the company's actions in their personal capacity as
"controlling persons" of Galectin under section 20(a) of the
Exchange Act.
On June 26, 2015, the defendants moved to dismiss Hotz's complaint
for failure to state a claim. On December 30, 2015, the district
court granted the motion.
As to Count I, the district court determined that Galectin did not
materially mislead investors by failing to disclose defendants'
payment to the stock promoters. First, the district court noted
that paying for promotional articles does not constitute price
"manipulation." Second, under interpretive Supreme Court law, the
defendants did not make, and are not liable for, the stock
promoters' own statements.
As to Count II, the district court determined that Hotz's
complaint failed to allege conduct different from that in Count I.
Because this alleged conduct -- making payments to promoters --
was clearly permissible under Rules 10b5-(a) and (c), the district
court dismissed Count II.
As to Count III, the district court dismissed Hotz's section 20(a)
derivative claim because the lack of liability under section 10(b)
of the Exchange Act could leave "no secondary liability under
section 20(a)."
Hotz appealed the district court's ruling as to his section 10(b)
and Rule 10b-5(b) claims in Count I and his section 20(a) claims
in Count III.
The Eleventh Circuit stated that, to the extent that Hotz bases
his Rule 10b-5(b) claim on the content of, or the omissions in,
the articles by the stock promoters, the Supreme Court has
foreclosed that claim when it held that a defendant must have
"made" the statement to be liable for a violation of Rule 10b-
5(b). The Eleventh Circuit held that, even though Galectin paid
for the stock promoters' articles, that is not sufficient to
support a claim under Rule 10b-5(b), and that payment for the
promotional articles does not mean that Galectin is the maker of
the statements in the articles. Thus, the appellate court
concluded that Galectin is not liable for any statements or
omissions in the stock promoters' articles.
The next question is whether Galectin's statement in the ATM
offerings -- that it has not taken action that caused or resulted
in manipulation of its stock price -- is an "untrue statement of a
material fact," given that Galectin paid stock promoters to "tout"
the stock and did not disclose those payments in the ATM
offerings. For several reasons,
The Eleventh Circuit also concluded that Galectin's statement in
the "at the market" offerings -- that it has not taken action that
caused or resulted in manipulation of its stock price -- is not an
"untrue statement of a material fact" in violation of section
10(b) of the Exchange Act or Rule 10b-5(b).
The Eleventh Circuit explained that Galectin's engagement of third
parties to promote awareness of its stock and to encourage
investment in its business was legal and did not constitute stock-
price manipulation. The appellate court stated that the
securities laws places the duty to disclose payments only on the
stock promoters, and thus, the defendants had no additional duty
to disclose their payments to the stock promoters. The Eleventh
Circuit also noted that there is no allegation that Galectin or
the other defendants engaged in any kind of simulated market
activity or transactions designed to "create an unnatural and
unwarranted appearance of market activity," which is required to
constitute market manipulation.
Because the complaint failed to allege conduct by the defendants
amounting to "manipulation" of Galectin's stock price, the
Eleventh Circuit held that the complaint similarly failed to
allege that Galectin's "no manipulation" statements were untrue.
The Eleventh Circuit concluded that there was no Rule 10b-5(b)
violation, and thus, the district court did not err in dismissing
Hotz's misrepresentation claim.
The Eleventh Circuit also held that because Hotz's complaint did
not allege a primary violation, Hotz's claim under section 20(a)
of the Exchange Act fails.
A full-text copy of the Eleventh Circuit's December 15, 2016
ruling is available at https://is.gd/Z3rN6c from Leagle.com.
Benjamin Lee, Benjamin Warren Pope -- wpope@kslaw.com -- Michael
R. Smith -- mrsmith@kslaw.com -- Alexandra Spear Peurach --
apeurach@kslaw.com -- for Defendant-Appellee.
Michael K. Yarnoff -- myarnoff@kehoelawfirm.com -- Ross A. Albert
-- ralbert@mmmlaw.com -- Kimberly A. Justice -- kjustice@ktmc.com
-- Meredith L. Lambert -- mlambert@ktmc.com -- Naumon A. Amjed --
namjed@ktmc.com -- Ryan T. Degnan -- rdegnan@ktmc.com -- for
Plaintiff-Appellant.
GLACIER COUNTY, MT: Taxpayers' Class Action Ongoing
---------------------------------------------------
LeAnne Kavanagh, writing for Pioneer Press Editor, reports that
there seems to be some confusion whether or not Glacier County
officials will allow taxpayers to pay their taxes under protest
citing the ongoing Class Action Lawsuit that has been appealed to
the Montana Supreme Court. At least one taxpayer had her
protested tax payment and form "denied" by the Glacier County
Treasurer's Office on Monday, Dec. 12, reported Elaine Mitchell.
"We are awaiting legal advice on how to proceed," said
Ms. Mitchell. "We will file another class action lawsuit if
needed. Glacier County taxpayers have been seeking a report on
the financial condition of the county for over two years now and
we will continue to take whatever legal action is needed to obtain
that information," she stated.
As of Tuesday, Dec. 13, Glacier County's September and October
cash reports are still delinquent and year-end adjustments have
not been made to finalize the June, July and August 2016 cash
reports.
Glacier County Treasurer Galen Galbreath said Jonathan Mahrt of
Denning, Downey and Associates, CPAs, (DDA) was working on the
adjusting entries for June 2016.
Mr. Galbreath confirmed the recently mailed tax bills were created
prior to Glacier County's FY 2015-16 closeout and adjusting
entries being made by DDA or county officials.
Mr. Galbreath earlier stated he would not send out tax bills until
the year-end close-out was completed. When asked why he changed
his mind he stated, "From my conversations with the other elected
officials in and outside of the county, I was advised that we
don't have to have the year-end closed before you bill but in
order to do your budget you would have to know those numbers in
order to set mills. We can't bill until the budget is set because
you don't have budgetary authority until the budget is finalized
by the commissioners. The budget was set before we commenced the
billing process."
The Glacier County Commissioners held a public hearing on Nov. 17
and approved an amended FY 2016-17 budget, which listed
anticipated revenues of $16,624,355 and approved expenditures of
$17,935,787. The amended budget did not balance with the
commissioners approving over $1.3 million more in expenditures
than anticipated revenue.
Mr. Galbreath said any taxpayer who received a tax bill dated Nov.
29, 2016, should disregard it. Those tax bills are incorrect he
stated. Corrected tax bills were generated on Dec. 6 and mailed
out on Dec. 7 and Dec. 8, he continued.
The Treasurer's Office originally set the date for the first
installment of taxes to be paid as Jan. 4. When asked why
taxpayers were receiving less than the usual 30 days to make the
payment, Mr. Galbreath did further research and set a new date of
Jan. 8, 2017.
He is also looking into why the date of the copies of in-house tax
bills generated by his office are dated Dec. 9, instead of Dec. 6,
he said. He did not notice the date discrepancy until researching
the taxes due date on Dec. 13.
With first installment tax payments not due for at least three
weeks, Ms. Mitchell is urging taxpayers not to be in a rush to pay
their taxes until a legal determination is made, which she hopes
will be very soon.
Mr. Galbreath stated on Monday, Dec. 12, Glacier County's special
legal counsel in the Class Action Lawsuit, Kirk Evenson, of the
Marra, Evenson and Bell law firm in Great Falls, is drafting a
memo, which will be presented to the Glacier County Commissioners
for their approval. The memo will cite the reason and state law
that allows Glacier County to "deny" tax protests citing the Class
Action Lawsuit filed in August 2015, said Mr. Galbreath.
Until otherwise notified, the Glacier County Treasurer's Office
will "deny" protested tax payments, Mr. Galbreath stated.
GLOBUS MEDICAL: Appeal in Silverstein Litigation Ongoing
--------------------------------------------------------
An appeal in the Silverstein litigation against Globus Medical,
Inc. remains pending, the Company said in its Form 10-Q Report
filed with the Securities and Exchange Commission on November 9,
2016, for the quarterly period ended September 30, 2016.
The Company said, "On September 28, 2015, a putative securities
class action lawsuit was filed against us and certain of our
officers in the U.S. District Court for the Eastern District of
Pennsylvania. Plaintiff in the lawsuit purported to represent a
class of our stockholders who purchased shares between February
26, 2014 and August 5, 2014. The complaint purported to assert
claims under Sections 10(b) and 20(a) of the Securities Exchange
Act of 1934, as amended, and sought damages in an unspecified
amount, attorney's fees and other relief.
"This matter was dismissed with prejudice on August 26, 2016. On
September 9, 2016, plaintiff's motion for reconsideration was
denied, and on September 13, 2016 plaintiff filed an appeal in the
United States Court of Appeals for the Third Circuit."
No further updates were provided in the Company's SEC report.
Globus Medical, Inc., together with its subsidiaries, is a medical
device company focused on the design, development and
commercialization of musculoskeletal implants.
GOPRO INC: Jan. 17 Lead Plaintiff Bid Deadline
----------------------------------------------
Khang & Khang LLP announces a class action lawsuit against GoPro,
Inc. Investors who purchased or otherwise acquired GoPro shares
between September 19, 2016 and November 4, 2016 inclusive (the
"Class Period"), are encouraged to contact the Firm by the January
17, 2017 lead plaintiff motion deadline.
If you purchased shares of GoPro during the Class Period, please
contact Joon M. Khang, Esquire, of Khang & Khang, 18101 Von Karman
Avenue, 3rd Floor, Irvine, CA 92612, by telephone: (949) 419-3834,
or by e-mail.
There has been no class certification in this case. Until
certification occurs, you are not represented by an attorney. You
may choose to take no action and remain a passive class member.
The complaint alleges that GoPro made false and misleading
statements to investors and/or failed to disclose: that the
Company's Karma drones were prone to losing power midflight,
causing them to fall out of the sky; that GoPro overstated the
utility and likely customer demand for the Karma drone; that there
would likely be a costly recall of GoPro's Karma drones when it is
publicly known; and that as a result of the above, GoPro's public
statements were materially false and misleading at all relevant
times. On November 8, 2016, the Company announced a recall of all
of its Karma drones, due to instances where "units lost power
during operation." GoPro also announced disappointing third-
quarter 2016 financial results on November 4, 2016. When this
information was released, shares of GoPro declined in value,
causing investors harm.
If you wish to learn more about this lawsuit, or if you have
questions concerning this notice or your rights, please contact
Joon M. Khang, a prominent litigator for almost two decades, by
telephone: (949) 419-3834, or by e-mail.
GUARANTY BANCORP: Hearing This Month on "Sciabacucchi" Case Deal
----------------------------------------------------------------
Guaranty Bancorp said in its Form 10-Q Report filed with the
Securities and Exchange Commission on November 9, 2016, for the
quarterly period ended September 30, 2016, that the hearing to
approve the settlement in the case, Sciabacucchi v. Cordes et al.,
is scheduled for January 2017.
On May 20, 2016, a putative stockholder class action lawsuit (the
"Merger Litigation"), was filed against the Company and the
individual members of Company's board of directors in connection
with the Company entering into the Agreement and Plan of
Reorganization (the "Merger Agreement"). The action, Sciabacucchi
v. Cordes et al., Case No. 16cv31793, was filed in Colorado
District Court, Denver County.
The Merger Litigation alleged that the members of the Company's
board of directors breached their fiduciary duties owed to the
Company's stockholders by causing a materially incomplete
registration statement to be filed. The plaintiff in the Merger
Litigation generally sought, among other things, declaratory and
injunctive relief concerning the alleged breach of fiduciary
duties, injunctive relief prohibiting consummation of the
transaction and attorneys' fees and costs, and other further
relief.
On July 5, 2016, the parties to the merger litigation entered into
a Memorandum of Agreement providing that, among other things: (1)
the Company would make specified additional disclosures in the
joint proxy statement/prospectus filed in connection with the
transaction; (2) the merger litigation is stayed; and (3) the
parties would enter into a stipulation providing for certification
of a class for settlement purposes and a class release. The joint
proxy statement/prospectus filing filed on July 19, 2016, included
these specific additional disclosures. The proposed settlement is
subject to, among other things, approval of the District Court,
City and County of Denver, Colorado. Under the terms of the
proposed settlement, following final court approval, the action
will be dismissed with prejudice.
On September 9, 2016, the parties entered into a Final Stipulation
of Settlement and Release filed with the Colorado District Court,
Denver County. A copy of the settlement was mailed to all
stockholders of record between March 16, 2016 and July 5, 2016 in
September 2016. The hearing to approve the settlement is scheduled
for January 2017. There can be no assurances however, that court
approval of the settlement will be obtained.
HARRIS COUNTY, TX: Faces "Lomas" Class Suit Over Detention
----------------------------------------------------------
Cameron Langford, writing for Courthouse News Service, reported
that in the latest of three federal class actions in Houston,
challenging a post-arrest regime that effectively warehouses poor
people in Texas's most crowded jail, two men claim Harris County
unconstitutionally jailed them with "unsworn" arrest reports.
Lead plaintiff Lucas Lomas, 26, was arrested without a warrant on
felony theft charges and booked into Harris County Jail in
downtown Houston on Christmas Eve. Most arrests are made without
warrants because police can detain and arrest people they see
commit a crime or have probable cause to believe they did. Lomas
was charged with stealing five DVDs and a speaker, valued at less
than $2,500. By itself the alleged crime would be a misdemeanor,
but prosecutors charged Lomas with a felony due to two previous
theft convictions, court records show.
On Christmas Day, a magistrate judge, or hearing officer, found
probable cause to detain Lomas and set his bail at $15,000. Unable
to post bail, he is in jail awaiting his Jan. 3, 2017 arraignment.
"The hearing officer's finding of probable cause was made on the
basis of unsworn statements," Lomas says in the complaint.
Represented by the Texas Fair Defense Project in Austin, Lomas
says Harris County habitually detains people who can't afford bail
based on unsworn criminal complaints, which "are not signed under
penalty of perjury," a violation of the Fourth Amendment.
Here's how it works: An officer makes a warrantless arrest then
calls a hotline staffed 24/7 by a Harris County assistant district
attorney.
"The arresting officer describes the circumstances leading to
arrest, and the assistant district attorney on duty decides what,
if any, charges are supported by those circumstances. The
statements an officer makes to the ADA on duty are not sworn," the
complaint states.
If the prosecutor believes charges are appropriate, he or she
"accepts" them and tells the officer the bail amount according to
a preset payment schedule.
"After the ADA accepts the charges, the police officer types a
summary of the facts and a description of the accepted charges
into a District Attorney's Intake Management System (DIMS)
terminal," the lawsuit states.
"Most police officers in Harris County have access to such a
terminal in their squad cars; all officers can access them at
stationhouses. The DIMS summary is not sworn."
Shortly after their arrest, defendants are taken in groups of 25
to 40 to a room in the jail where they appear via video before a
magistrate and prosecutor.
These "rote" hearings last a minute, during which defendants are
advised by magistrates and sheriff's deputies not to ask for lower
bail, or say anything, and are not afforded a lawyer, according to
the new complaint and a related federal class action filed in May.
"The statements the ADA reads, and on the basis of which hearing
officers find probable cause in almost every case, are not
supported by oath or affirmation. In other words, they are not
signed under penalty of perjury. They are not sworn," Lomas says
in his complaint.
Harris County assistant attorney Robert Soard said the county is
reviewing the lawsuit's allegations.
An average of 1,400 people are arrested every week in Harris
County, Lomas says, so tens of thousands of people are being
unconstitutionally detained with unsworn arrest reports.
In August and September, 76 percent of Harris County Jail inmates
were awaiting resolution of their cases, according to a county
report released in November.
Lomas says that in the rare instances when magistrates find the
evidence in the complaints insufficient to establish probable
cause, they tell the sheriff's department to keep the defendant in
jail and tell the prosecutor to call the arresting officer to get
more details about the arrest.
After the prosecutor investigates, the defendant is taken to a
hearing where the prosecutor reports on the additional findings,
"again using unsworn statements," and the magistrate decides
whether the arrestee should be held.
Harris County further tramples inmates' constitutional rights by
holding them "incommunicado from the moment they are taken into
Harris County custody until sometime after their magistration
hearing," Lomas says.
A magistration hearing is Houston-speak for a probable cause
hearing, or an Article 15.17 hearing, Lomas's attorney says in the
complaint.
One attorney for the plaintiffs recently went to the jail and told
a sheriff's deputy she wanted to talk to several defendants who
had appeared at probable causing hearings less than 24 hours
before.
"After looking for the men for an hour, the deputy stated that the
men could not be seen, even by an attorney, until after they had
been assigned to a housing unit in the jail, which had not yet
happened," the complaint states.
"He said that the individuals were all in the basements of one of
four buildings, but he did not know which one."
Another sheriff's deputy in a different jail building told the
attorney it would take up to 36 hours for the defendants to be
assigned a housing unit and during that time nobody could see
them.
"The sheriff's deputy said that they could not be found for the
purpose of an attorney visit, but they would be found and released
if money bond was posted," the lawsuit states.
Lomas' co-plaintiff Carlos Ealgin was arrested on Dec. 26 on
misdemeanor marijuana possession charges. Like Lomas, he couldn't
afford his $15,000 bail and is in jail awaiting arraignment.
Lomas and Ealgin seek class certification, an injunction and a
declaration that Harris County's practice of using unsworn
statements violates their civil rights.
They are represented by Rebecca Bernhardt with the Texas Fair
Defense Project in Austin and attorneys with the Civil Rights
Corps, a Washington, D.C. nonprofit.
The attorneys have become very familiar with Harris County's post-
arrest system and the crowded jail that county officials
acknowledge need reforms. They filed a federal class action
against the county in May, claiming it unconstitutionally jails
nonviolent, poor people on misdemeanor charges by refusing to
grant them no-fee bonds.
U.S. District Chief Judge Lee Hyman Rosenthal refused to dismiss
the case on Dec. 16 and set a class-certification hearing for Feb.
21, 2017.
The same attorneys brought a federal class action against the City
of Houston on Dec. 5. It accuses the city of detaining people
arrested without a warrant longer than 48 hours without giving
them a probable cause hearing, in violation of the Fourth and 14th
Amendments. Houston arrestees who can't post bail don't get the
hearing until the Houston Police Department transfers them to
Harris County Jail.
Hundreds of Houston detainees were illegally held without a
hearing in July and August because the jail didn't have room for
them, according to that lawsuit.
The first pretrial conference for that case is set for Feb. 6,
2017 before U.S. District Judge Kenneth Hoyt.
Houston is the seat of Harris County, the state's most populous
city and county.
The case is captioned, LUCAS LOMAS, CARLOS EALGIN, On behalf of
themselves and all others similarly situated, Plaintiffs, v.
HARRIS COUNTY, TEXAS, Defendant, Case 4:16-cv-03745 (S.D. Tex.).
HAUDENOSAUNEE DEVELOPMENT: Class Action Hearing Postponed
---------------------------------------------------------
Jayson Koblun, writing for Two Row Times, reports that a lawsuit
launched in September by Six Nations' Bill Monture and Wilfred
Davey against Aaron Detlor, Hazel Hill, Brian Doolittle and Elvera
Garlow, and the board members of the Haudenosaunee Development
Institute (HDI) or its numbered corporate entities has been
postponed again until early next year.
Monture and Davey are part of the Men's Fire. They and a small
group of supporters and other Men's Fire members came to the
John Sopinka Courthouse in Hamilton on December 13 to attend the
court hearing -- but were surprised when a representative
requested that the case be rescheduled to January 26, 2017.
"We came ready to hear this thing out," said Mr. Monture. "I
really thought we were coming today to get the case rolling."
Messrs. Monture and Davey say that the case has to do with the
handling and dealings of money with the HDI and it's alleged lack
of transparency as it attempts to communicate with the community
of Six Nations.
HOUSEHOLD INT'L: McDonald Seeks Review of Ruling in "Jaffe" Suit
----------------------------------------------------------------
Kevin P. McDonald filed an appeal from a court ruling relating to
the lawsuit entitled Lawrence Jaffe, et al. v. Household
International, Inc., et al., Case No. 1:02-cv-05893, in the U.S.
District Court for the Northern District of Illinois, Eastern
Division.
As previously reported in the Class Action Reporter, the Jaffe
Case was one of dozens of securities fraud suits that named Arthur
Andersen LLP as a defendant after the firm was implicated in the
Enron scandal, triggering investigations into its other audits.
The Case was both timely and ahead of its time since it concerned
alleged accounting fraud by a subprime mortgage lender,
foreshadowing the global financial crisis of 2007-2008.
The appellate case is captioned as Lawrence Jaffe, et al. v.
Household International, Inc., et al., Case No. 16-4108, in the
U.S. Court of Appeals for the Seventh Circuit.
According to the briefing schedule in the Appellate Case,
Appellant's brief is due on or before January 18, 2017, for Kevin
P. McDonald.
Plaintiff-Appellee LAWRENCE JAFFE, Pension Plan, on behalf of
itself and all others similarly situated, is represented by:
Gary L. Specks, Esq.
KAPLAN FOX & KILSHEIMER LLP
423 Sumac Road
Highland Park, IL 60035
Telephone: (312) 750-6892
Facsimile: (847) 831-1580
E-mail: gspecks@kaplanfox.com
Plaintiff-Appellee GLICKENHAUS & COMPANY is represented by:
Michael J. Dowd, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
655 W. Broadway
San Diego, CA 92101-8498
Telephone: (619) 231-1058
Facsimile: (619) 231-7423
E-mail: miked@rgrdlaw.com
Appellant KEVIN P. MCDONALD is represented by:
John W. Davis, Esq.
LAW OFFICE OF JOHN W. DAVIS
501 W. Broadway
San Diego, CA 92101
Telephone: (619) 400-4870
Facsimile: (619) 342-7170
Defendants-Appellees HOUSEHOLD INTERNATIONAL, INC., WILLIAM F.
ALDINGER, DAVID A. SCHOENHOLZ and GARY L. GILMER are represented
by:
Thomas J. Kavaler, Esq.
CAHILL, GORDON & REINDEL LLP
80 Pine Street
New York, NY 10005-0000
Telephone: (212) 701-3406
Facsimile: (212) 378-2230
E-mail: tkavaler@cahill.com
- and -
R. Ryan Stoll, Esq.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
155 N. Wacker Drive
Chicago, IL 60606-1720
Telephone: (312) 407-0700
Facsimile: (312) 407-0411
E-mail: rstoll@skadden.com
Defendant-Appellee ARTHUR ANDERSEN LLP is represented by:
Stanley J. Parzen, Esq.
MAYER BROWN LLP
71 S. Wacker Drive
Chicago, IL 60606
Telephone: (312) 701-7326
Facsimile: (312) 706-8668
E-mail: sparzen@mayerbrown.com
ILLUMINA INC: Feb. 14 Lead Plaintiff Bid Deadline
-------------------------------------------------
The Law Offices of Vincent Wong disclosed that a class action
lawsuit has been commenced in the USDC for the Southern District
of California on behalf of investors who purchased Illumina, Inc.
(NASDAQ:ILMN) securities between July 26, 2016 and October 10,
2016.
According to the complaint, throughout the Class Period,
Defendants failed to disclose that: (1) Illumina was suffering a
large decline in its instrument sales; (2) this decline was
damaging Illumina's revenue; (3) Illumina lacked visibility into
trends that could have a substantial impact on its financial
results; (4) as such, Illumina's revenue guidance was unreliable
and overstated; and (5) consequently, Illumina's statements
concerning its business, operations, and prospects, were false and
misleading and/or lacked a reasonable basis.
On October 10, 2016 Illumina announced disappointing financial
results for the third quarter of fiscal year 2016. The company had
predicted revenues of $625 to $630 million for the quarter.
However, citing "declining demand for its high-speed genetic
sequences," Illumina generated just $607 million. Following this
news, Illumina stock dropped as much as 25% during intraday
trading on October 11, 2016.
If you suffered a loss in Illumina you have until February 14,
2017 to request that the Court appoint you as lead plaintiff. Your
ability to share in any recovery doesn't require that you serve as
a lead plaintiff. To obtain additional information, contact
Vincent Wong, Esq. either via email -- vw@wongesq.com -- by
telephone at 212.425.1140, or visit
http://www.wongesq.com/pslra/illumina-inc-ilmn.
Vincent Wong, Esq. is an experienced attorney that has represented
investors in securities litigations involving financial fraud and
violations of shareholder rights. Attorney advertising. Prior
results do not guarantee similar outcomes.
IMPAX LABORATORIES: Jan. 9 Lead Plaintiff Bid Deadline
------------------------------------------------------
On November 10, 2016, a class action lawsuit was filed in the
United States District Court for the District of New Jersey
against Impax Laboratories, Inc. Federman & Sherwood reminds
current and former shareholders of Impax Laboratories, Inc. that
they only have until Monday, January 9, 2017 to move the court for
appointment as a lead plaintiff in this case. The Complaint
alleges violations of Section 10(b) and Section 20(a) of the
Securities Exchange Act, and Rule 10b-5 promulgated thereunder.
If you purchased Impax Laboratories, Inc. shares between February
24, 2014 and November 3, 2016, have large losses as a result of
your trades during this time period, and wish to join this
litigation as a potential lead plaintiff, please contact our
office as soon as possible. Our firm seeks to recover damages on
behalf of the Class. Federman & Sherwood has extensive experience
and expertise in prosecuting securities litigation involving
financial fraud. We represent investors throughout the country in
shareholder litigation.
INFUSYSTEM HOLDINGS: Jan. 9 Lead Plaintiff Bid Deadline
-------------------------------------------------------
Kahn Swick & Foti, LLC and KSF partner, the former Attorney
General of Louisiana, Charles C. Foti, Jr., remind investors that
they have until January 9, 2017 to file lead plaintiff
applications in a securities class action lawsuit against
InfuSystem Holdings, Inc., if they purchased the Company's
securities between May 12, 2015 and November 7, 2016, inclusive.
This action is pending in the United States District Court for the
Central District of California.
What You May Do
If you purchased securities of InfuSystem and would like to
discuss your legal rights and how this case might affect you and
your right to recover for your economic loss, you may, without
obligation or cost to you, call toll-free at 1-877-515-1850 or
email KSF Managing Partner Lewis Kahn --lewis.kahn@ksfcounsel.com
--. If you wish to serve as a lead plaintiff in this class action,
you must petition the Court by January 9, 2017.
About the Lawsuit
InfuSystem and certain of its executives are charged with failing
to disclose material information during the Class Period,
violating federal securities laws.
The alleged false and misleading statements and omissions include,
but are not limited to, that: (i) InfuSystem lacked effective
internal control over financial reporting; (ii) InfuSystem's
financial statements dating back to the beginning of 2015
overstated the estimated accounts receivable collections which in
turn overstated revenues and pre-tax income by a corresponding
amount; (iii) InfuSystem's financial statements dating back to the
beginning of 2015 could no longer be relied upon; and (iv) as a
result of the foregoing, the InfuSystem's financial statements
were materially false and misleading at all relevant times.
About Kahn Swick & Foti, LLC
KSF, whose partners include the Former Louisiana Attorney General
Charles C. Foti, Jr., is a law firm focused on securities,
antitrust and consumer class actions, along with merger &
acquisition and breach of fiduciary litigation against publicly
traded companies on behalf of shareholders. The firm has offices
in New York, California and Louisiana.
INTUITIVE SURGICAL: Pension Plans' Class Action Certified
---------------------------------------------------------
Robert Khan, writing for Courthouse News Service, reported that a
federal judge in San Jose, certified two pension plans'
shareholder class action accusing Intuitive Surgical of
misrepresenting the safety of its da Vinci robotic surgery.
The case is captioned, IN RE INTUITIVE SURGICAL SECURITIES
LITIGATION. Case No. 5:13-cv-01920-EJD (N.D Cal.).
Lead Plaintiff Employees' Retirement System of the State of
Hawaii, together with named Plaintiff Greater Pennsylvania
Carpenters' Pension Fund bring the putative securities class
action against Intuitive Surgical, Lonnie M. Smith, Gary S.
Guthart and Marshall L. Mohr, alleging violations of Sections
10(b), 20(a) and 20A of the Securities Exchange Act of 1934 and
U.S. Securities and Exchange Commission Rule 10b-5 promulgated
thereunder. They bring this action individually and on behalf of
all other persons and entities that purchased or acquired
Intuitive's common stock during the proposed class period of
February 6, 2012 and July 18, 2013, inclusive.
JOHN MARSHALL: Ex-Professor Files Racial Discrimination Suit
------------------------------------------------------------
Karen Sloan, writing for Daily Report, reports that for the second
time in four years, a female African-American former professor at
Atlanta's John Marshall Law School has sued the institution for
racial discrimination.
In a suit filed Dec. 8 in U.S. District Court for the Northern
District of Georgia, plaintiff Patrice Fulcher claims she was
continually denied promotions and pay raises by several of the
school's deans during her eight years teaching there. She alleges
that women, and African-American women in particular, are
routinely relegated to teaching legal skills courses instead of
doctrinal courses despite being qualified and are paid less than
similarly situated white male professors.
According to her suit, Ms. Fulcher was the first African-American
woman to earn tenure at the school since its founding in 1933, yet
she quit a year later in 2015 when the school did not increase her
salary as a result.
"Because of this ongoing discrimination against African Americans
and women, Ms. Fulcher refused to renew her teaching contract with
[the law school] in spite of her tireless efforts to gain tenure,
her commitment to the [law school] faculty and students, and her
impressive standing and growing reputation in the legal academy in
her area of scholarship," reads her complaint.
Representatives from the law school did not respond to requests
for comment on Dec. 13.
Former law professors Kamina Pinder and Scott Sigman sued John
Marshall in 2012 claiming racial discrimination and retaliation
when the school failed to renew their yearlong teaching contracts
in 2011. Their suit survived a motion to dismiss in 2014 and
appeared headed to trial, but the parties reached a settlement
later that year.
Ms. Pinder, an African-American woman, claimed she was dismissed
for raising concerns about the school's history of giving minority
women the least desirable teaching assignments and of discouraging
them from seeking tenure -- an allegation echoed in Ms. Fulcher's
complaint. Mr. Sigman alleged his firing was retaliation for
warning about unfair grading practices and improper handling of
personnel matters. John Marshall claimed in court documents that
Ms. Pinder and Mr. Sigman's contracts were not renewed because of
their plans to launch a private business aimed at preparing
incoming law students that might pose a conflict of interest.
Ms. Pinder, now an instructor in Emory University School of Law's
legal research advocacy and communications program, did not
respond to a request for comment on her time at John Marshall.
Edward Buckley -- edbuckley@buckleybeal.com -- managing partner of
the Atlanta law firm Buckley Beal, represented Ms. Pinder and Mr.
Sigman and is also representing Ms. Fulcher. He also did not
reply to a reporter's request on Dec. 13.
According to her complaint, John Marshall initially hired
Ms. Fulcher in 2007. She alleges that, despite her experience as
a public defender and qualifications to teach criminal law and
criminal procedure, an administrator pushed her toward legal
research and writing -- a skills course that comes with lower pay
and lacked the tenure-track status of doctrinal courses.
"She, like every other African-American female professor before
her, was steered toward teaching [legal research writing and
analysis] as a skills professor as opposed to doctrinal courses,"
her suit reads.
Skills courses include legal writing and research, whereas
doctrinal courses include the so-called red-letter subjects of
constitutional law, criminal law, civil procedure and torts.
At the time of her hiring, the school hired two other white men to
teach doctrinal courses, she alleges. The school's skills
department was a "pink ghetto" populated primarily by women,
particularly African-American women, she claimed.
Ms. Fulcher says she taught criminal law, when needed, but
remained a "skills" professor. Her pay remained lower even after
the law school's faculty voted in 2009 to place all skills
professors on the tenure track, her complaint states. The suit
says the faculty voted to move Fulcher into the doctrinal faculty
in 2010, yet she continued to earn a lower salary than colleagues.
She asked former law dean Lynn Richardson and current dean Malcolm
Morris for pay increases, her suit says, but was denied. Her suit
also claims that the school launched a discrimination
investigation after another African-American female on the faculty
complained.
"On information and belief, the investigatory report concluded
that African-American female professors were subjected to
discrimination in their compensation, and subjected to a hostile
working environment at [the law school]," the suit reads.
Ms. Fulcher, whose LinkedIn profile lists her as the director of
training at the Office of the Public Defender of Maryland, is
seeking back wages and damages.
JOHNSON & JOHNSON: Jury Awards $1BB Verdict in Hip Implant Case
---------------------------------------------------------------
Amanda Bronstad, writing for The Am Law Daily, reports that
Johnson & Johnson lost a $1 billion verdict on Dec. 1 in a closely
watched trial over a hip implant device made by its DePuy
Orthopaedics Inc. division.
After less than a day of deliberations, a federal jury in Dallas
awarded $1.04 billion to six plaintiffs after concluding that
Johnson & Johnson misled them and their doctors about the safety
of the Pinnacle hip implant. The lawsuits were combined in a
trial that began on Oct. 3.
Johnson & Johnson faces suits by more than 8,500 plaintiffs in
multidistrict litigation in federal court in Dallas alleging it
failed to warn doctors and consumers about the device's
complications, which included pain and subsequent removal
surgeries.
The award included $1 billion in punitive damages and $40 million
in compensatory damages.
"Anyone who sees the evidence will be appalled at the conduct of
J&J," said lead plaintiffs attorney W. Mark Lanier of The Lanier
Law Firm in Houston. "These cases are not hard to try. J&J needs
to get responsible and settle these cases. Thousands are hurting."
Johnson & Johnson immediately planned post-trial motions.
Spokeswoman Mindy Tinsley said DePuy acted "appropriately and
responsibly" in the design and testing of the product, which is
"backed by a strong track record of clinical data showing reduced
pain and restored mobility for patients suffering from chronic hip
pain."
Johnson & Johnson also immediately criticized the rulings in the
case. "Now the appellate court will need to review errors
repeated in two trials, and we will continue to urge that no
further trials be conducted until we receive appellate court
guidance," said Johnson & Johnson attorney John Beisner --
john.beisner@skadden.com -- leader of the mass torts, insurance
and consumer litigation group at Skadden, Arps, Slate, Meagher &
Flom.
In 2014, Johnson & Johnson won the first verdict over the
Pinnacle. But in March, another federal jury in Dallas awarded
$502 million to five plaintiffs whose suits were combined. The
award was later reduced to $150 million under Texas law.
But according to Jayne Conroy, a member of the plaintiffs
executive committee in the Pinnacle multidistrict litigation, the
Dec. 2 award won't be subject to a punitive damages cap because it
was tried under California law. She credited the win with
evidence that showed Johnson & Johnson paid kickbacks to surgeons
to promote the device, even though it knew it was riskier than
other implants.
"The evidence presented in the testimony against J&J told the
deeper story of how the science was manipulated in order to sell
the product," wrote Ms. Conroy -- JConroy@simmonsfirm.com -- a
shareholder at Simmons Hanly Conroy.
Johnson & Johnson's lawyers express confidence that the verdicts
will get reversed on appeal. Already, the $502 million verdict.
JOHNSON & JOHNSON: Attacks Judge for Evidentiary Rulings in Cases
-----------------------------------------------------------------
Amanda Bronstad, writing for The Legal Intelligencer, reports that
after Johnson & Johnson got hit with a $1 billion verdict,
plaintiffs lawyers were quick to paint a portrait of the company
as an aggressive litigator uninterested in settling whose actions
have prompted juries to award gargantuan punitive damages. It's
the same refrain that plaintiffs attorneys have been touting this
year as Johnson & Johnson has gotten hammered with five big
verdicts over its hip implants and talcum powder products.
But it's not a complete picture. Attorney John Beisner, who
oversees much of Johnson & Johnson's products liability
litigation, including talcum powder and hip implant cases, said
2016 just happened to be a bad year for trials. But he also
pointed out that the verdicts have come out of just two
courtrooms, where judges in both matters have allowed jurors to
hear evidence that never should have been introduced -- a key
argument in appeals that have just begun.
"In both of these proceedings, the courts have been permitting the
juries to hear a lot of 'evidence' that has nothing to do with the
case or has no foundation," said Mr. Beisner, leader of the mass
torts, insurance and consumer litigation group at Skadden, Arps,
Slate, Meagher & Flom. "I'm not talking about a little
indiscretion. This is whole swathes of evidence that were allowed
to be placed before the jury."
To be sure, Pinnacle hip implants and talcum powder aren't Johnson
& Johnson's only legal problems. A big player in pharmaceutical
drugs and medical devices, the New Brunswick, New Jersey-based
company has another 60,000 lawsuits against it over its
transvaginal mesh devices, blood thinner medication Xarelto and
prescription antipsychotic Risperdal.
But on Dec. 1, a federal jury in Dallas awarded $1.04 billion to
six plaintiffs who claimed that Johnson & Johnson's DePuy
Orthopaedics Inc. unit failed to warn about defects in its
Pinnacle hip implants that caused pain and subsequent removal
surgeries. It was the third bellwether in multidistrict
litigation that involves more than 8,500 cases. In March, another
federal jury in Dallas awarded $502 million to five plaintiffs
over the same device.
Lead plaintiffs lawyer W. Mark Lanier was quick to demand Johnson
& Johnson settle the Pinnacle cases given that "anyone who sees
the evidence will be appalled" at its conduct. Plaintiffs
attorney Ted Meadows made similar remarks about Johnson &
Johnson's conduct after winning verdicts of $55 million, $70
million and $72 million in cases alleging its talcum powder
products caused women to get ovarian cancer.
In litigation over transvaginal mesh devices, plaintiffs attorneys
have blamed Johnson & Johnson's legal strategy when explaining why
its Ethicon Inc. unit has refused to settle while defendants with
similar devices have resolved similar suits.
But there's another side to that portrayal.
Johnson & Johnson's ultimate goal is "to generate the most closure
possible for the least amount of money," said
Elizabeth Burch, a professor at the University of Georgia School
of Law who follows mass torts. Like other pharmaceutical and
medical device firms, Johnson & Johnson has adapted its strategy
based on various factors, such as whether the product was
recalled. In 2013, for instance, Johnson & Johnson paid $2.5
billion to settle lawsuits by about 8,000 people over ASR hip
implants, a recalled product made by DePuy. But Johnson & Johnson
still sells its iconic baby powder, the main product at issue in
the talcum powder litigation.
"It's much more difficult when you're still marketing the product
to try to get the kind of closure you'd want to get through a
massive settlement," Ms. Burch said. "So your best strategy is to
play hardball and convince plaintiffs attorneys to stop bringing
those cases."
Johnson & Johnson, which expects worldwide sales this year to
surpass $72 billion, has an arsenal of trial teams. In the hip
implant litigation, Quattlebaum, Grooms & Tull of Little Rock,
Arkansas, stepped in for the third trial after Locke Lord lost the
second one. In the talcum powder litigation, a team from Shook,
Hardy & Bacon handled the first two trials, with Nelson Mullins
Riley & Scarborough coming in for the third.
Johnson & Johnson's lawyers express confidence that the verdicts
will get reversed on appeal. Already, the $502 million verdict
has been revised downward to $150 million under Texas law.
In the talcum powder cases, Johnson & Johnson has insisted that
22nd Judicial Circuit Court Judge Rex Burlison allowed scientific
evidence into trial that should never have been there. And in the
hip implant litigation, the company has chastised U.S. District
Judge Ed Kinkeade of the Northern District of Texas, a George W.
Bush appointee, for changing the bellwether trial plan from
individual trials, as was the case in the first trial that ended
with a defense win in 2014, to those involving multiple
plaintiffs. Johnson & Johnson also has attacked the judge for his
evidentiary rulings.
If those verdicts get reversed, Johnson & Johnson might finally
find settlement to be more advantageous, Ms. Burch said.
"Even though you have these huge verdicts for juries, plaintiffs
lawyers have to spend lots money on jury cases," she said. But
with verdicts reversed on appeal, Johnson & Johnson "can negotiate
down the value of the settlement."
K BREAD: Rodriguez-Hernandez Appeals S.D.N.Y. Ruling to 2nd Cir.
----------------------------------------------------------------
Plaintiff Nereo Rodriguez-Hernandez filed an appeal from a
District Court order dated December 1, 2016, in the lawsuit titled
Rodriguez-Hernandez v. K. Bread & Company, Inc., Case No. 15-cv-
6848, in the U.S. District Court for the Southern District of New
York (New York City).
As previously reported in the Class Action Reporter, the Plaintiff
seeks to recover unpaid overtime wages and damages pursuant to the
Fair Labor Standard Act.
The appellate case is captioned as Rodriguez-Hernandez v. K. Bread
& Company, Inc., Case No. 16-4157, in the United States Court of
Appeals for the Second Circuit.
Plaintiff-Appellant Nereo Rodriguez-Hernandez, Individually and on
behalf of all other all other persons similarly situated, is
represented by:
Brandon David Sherr, Esq.
LAW OFFICE OF JUSTIN A. ZELLER, P.C.
277 Broadway
New York, NY 10007
Telephone: (212) 229-2249
Facsimile: (212) 229-2246
E-mail: bdsherr@zellerlegal.com
Defendants-Appellees K. Bread & Company, Inc., DBA Bread &
Company, and Alexander Kim are represented by:
Daniel William Morris, Esq.
CLIFTON BUDD & DEMARIA, LLP
The Empire State Building
350 5th Avenue
New York, NY 10118
Telephone: (212) 687-7410
Facsimile: (212) 687-3285
E-mail: dwmorris@cbdm.com
LASERCRAFT: Judge to Decide on Orlando Red Light Ticket Case
------------------------------------------------------------
Kirstin Delgado, writing for WOFL FOX 35, reports that if you paid
a red light ticket in Orlando between 2007 and 2010, you may soon
qualify to be a part of a class action lawsuit to get your money
back, according to a lawsuit filed in Orange County in March of
this year.
An attorney for the sole plaintiff in the case had a hearing
before a judge on Dec. 14. The judge will now have 60 days to
decide whether this case will become class-action status. If the
judge decides it will be a class-action case, then the lawsuit is
asking the City of Orlando and LaserCraft to pay back what they
have collected in paid tickets.
LaserCraft is a subsidiary of American Traffic Solutions, which is
the current company that services Orlando's red light tickets. The
lawsuit states that between 2007 and 2010, the city issued 49,000
tickets, with estimated revenue from citations that comes to
approximately $6,125,000.
If the judge rules that this is a class action lawsuit, then the
lawsuit is asking that the $6 million (plus damages) be repaid to
the drivers who paid their tickets.
LORNA JANE: Settles Class Action Over Gift Voucher Issues
---------------------------------------------------------
Jacinda Tutty, writing for The Courier-Mail, reports that
activewear giant Lorna Jane settled a potential class action in
the United States over issues with its gift vouchers.
A customer of the fitness brand, Ivy Thaide, launched legal action
after a store in California refused to redeem her voucher for cash
when it fell to a balance of under $10.
According to legal documents Ms Thaide was turned away by an
employee who said Lorna Jane's gift voucher policy did not allow
for a cash-out despite California law stating that all businesses
must redeem vouchers for cash, when "requested by the customer
when the gift card falls below $10."
After "participating in mediation" Lorna Jane agreed to pay
restitution for all discarded gift cards who were caught up in the
misstep from September 2, 2011 to April 6, 2016 by issuing new
gift vouchers for the value of $10.
Legal documents from the case said both parties "concluded it is
in their best interests to settle the action to avoid the expense
and uncertainty of ongoing litigation".
"The court did not decide which side was right, the court has
determined only that there is sufficient evidence to suggest that
the proposed settlement might be fair, adequate and reasonable,"
settlement documents said.
In addition to the restitution the class representative,
Ms Thaide, is believed to have received US$2000 as an incentive
award and the attorneys for the class action were paid US$60,000
in fees and costs.
It's not known how many customers will receive new vouchers or the
amount Lorna Jane will pay out as restitution at this stage.
Lorna Jane has since updated its gift voucher policies despite
"denying any wrong doing" during the settlement process.
Lorna Jane declined to comment.
MENARD INC: Violates Labor Law, NLRB Says
-----------------------------------------
Rick Romell at Milwaukee Journal Sentinel reports that a federal
agency has accused Menard Inc. of violating labor law in a case
involving delivery drivers, a union official who initially sought
the investigation into the retailer's practices said.
According to Seth Goldstein, senior business representative with
the Office & Professional Employees International Union, the
National Labor Relations Board has issued a complaint alleging
that Menards has improperly classified its drivers as independent
contractors rather than employees.
The agency also accuses the Eau Claire-based firm of violating
federal labor law by prohibiting drivers from filing class action
lawsuits or NLRB charges against Menards, according to a copy of
the complaint provided by Goldstein.
Menards called the allegations "ridiculous" and vowed to contest
them.
"We feel that the NLRB is wrong," spokesman Jeff Abbott said in an
email. "Our corporation has contracts with various corporations
to deliver goods to our customers. These corporations include
FedEx, UPS, the United States Postal Service, Stephens Delivery
Inc., Quick Hauling Inc., Rhodes Delivery Service, R & R Delivery,
Spee-Dee Delivery Service, and more than 500 other corporations."
"We are puzzled why the NLRB is involved with this because we have
no disputes with any of these corporations or any of their
employees," Abbott said. "We believe that ultimately the charge
will be dismissed because it lacks any merit."
The NLRB's online docket shows the agency filed a complaint
against Menards this week, but doesn't include the contents of the
document. NLRB officials could not be reached Friday.
Last April, NLRB found that Menards was violating federal labor
law in another case.
The board concluded the retailer had wrongly required employees to
sign arbitration agreements barring them from engaging in class-
action lawsuits. And the board found that Menards had withheld
merit pay raises for workers engaged in protected union
activities.
In a settlement, Menards agreed to rectify the issues.
Menards operates more than 280 home-improvement stores in 14
states. Goldstein said he believed each store uses three or four
drivers.
Menards' contract with haulers -- as the agreement calls them --
specifies that they will acquire a truck that meets the firm's
"recommended vehicle requirements," maintain it and provide their
own insurance, according to a worker's compensation case decided
in Minnesota in 2011.
Haulers must complete each delivery "as soon as possible within
normal business hours" on the same day Menards tells them of the
job, the contract says. It stresses that haulers should understand
that "time is of the essence."
Haulers agree not to do contract hauling for any competitor
located within 100 miles of a Menards store, both while they are
working for Menards and for one year after, the document says.
MENTOR GRAPHICS: Shareholders Challenge Siemens Deal
----------------------------------------------------
Robert Khan, writing for Courthouse News Service, reported that
directors are selling Mentor Graphics (software) too cheaply
through an unfair process to Siemens, for $37.25 a share or $4.5
billion, shareholders claim in a class action in Clackamas County
Court Oregon City, Ore.
The case is captioned, JACOB SCHEINER, On Behalf of Himself and
All Others Similarly Situated, Plaintiff, vs. MENTOR GRAPHICS
CORPORATION, WALDEN C. RHINES, KEITH L. BARNES, PAUL A.
MASCARENAS, PETER L. BONFIELD, CHERYL L. SHAVERS, J. DANIEL
MCCRANIE, JEFFREY M. STAFEIL, SIEMENS INDUSTRY, INC., and
MEADOWLARK SUBSIDIARY CORPORATION, Defendants. Case No. 16CV42024
IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF
CLACKAMAS.
Counsel for Plaintiff:
J. Matthew Donohue, Esq.
Shannon Armstrong, Esq.
MARKOWITZ HERBOLD PC
SUITE 3000 PACWEST CENTER
1211 SW FIFTH AVENUE
PORTLAND, OREGON 97204-3730
Tel: (503) 295-3085
Fax: (503) 323-9105
E-mail: MattDonohue@MarkowitzHerbold.com
ShannonArmstrong@MarkowitzHerbold.com
- and -
Richard A. Acocelli, Esq.
Michael A. Rogovin, Esq.
Kelly C. Keenan, Esq.
Seth M. Rosenstein, Esq.
WEISSLAW LLP
1500 Broadway, 16th Floor
New York, NY 10036
Tel: (212) 682-3025
Fax: (212) 682-301
E-mail: racocelli@weisslawllp.com
mrogovin@weisslawllp.com
kkeenan@weisslawllp.com
srosenstein@weisslawllp.com
MORGANS HOTEL: Defending Against Merger Class Actions
-----------------------------------------------------
Morgans Hotel Group Co. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on November 9, 2016, for
the quarterly period ended September 30, 2016, that the Company is
defending against the case, In re Morgans Hotel Group Co.
Stockholder Litigation, Consol. C.A. No. 12433-VCL (the
"Consolidated Action")
On May 9, 2016, the Company entered into a definitive agreement
under which the Company will be acquired by SBEEG Holdings, LLC
("SBE"), a leading global lifestyle hospitality company. Under
the terms of the merger agreement, SBE will acquire all of the
outstanding shares of the Company's common stock for $2.25 per
share in cash. As of November 9, 2016, the merger has not yet
closed. On November 8, 2016, the parties to the merger agreement
agreed to extend the outside date to November 30, 2016. The
parties are continuing to work towards closing the merger as
promptly as practicable.
The Company said, that, "Following the announcement of the
execution of the definitive agreement under which we would be
acquired by SBE, four putative class action lawsuits were filed by
purported stockholders of the Company challenging the merger and
the merger agreement.
The first complaint was filed in the Supreme Court of New York,
New York County and was captioned Sinclair v. Morgans Hotel Group
Co., et al., No. 652858/2016 (N.Y. Sup. Ct. filed on May 27, 2016)
(the "New York Action"). On June 15, 2016, the plaintiff in the
New York Action filed a notice of voluntary discontinuance without
prejudice, thereby voluntarily discontinuing the New York Action.
The other three complaints were filed in the Court of Chancery of
the State of Delaware and are captioned Baumwohl v. Lorber, et
al., No. 12433-VCL (Del. Ch. filed on June 8, 2016), Centonze v.
Burkle, et al., No. 12452-VCL (Del. Ch. filed on June 13, 2016),
and Hua v. SBEEG Holdings, LLC, et al., No. 12479-VCL (Del. Ch.
filed on June 17, 2016).
On June 29, 2016, the Court of Chancery of the State of Delaware
entered an order, among other things, consolidating the three
actions filed in Delaware under the caption In re Morgans Hotel
Group Co. Stockholder Litigation, Consol. C.A. No. 12433-VCL (the
"Consolidated Action") and appointing co-lead counsel and Delaware
counsel in the Consolidated Action.
On June 30, 2016, plaintiffs in the Consolidated Action filed a
Verified Consolidated Amended Class Action Complaint (the
"Complaint"). The Complaint names as defendants the individual
members of our Board of Directors, SBE, Merger Sub, Ronald W.
Burkle, The Yucaipa Companies, LLC, Yucaipa American Alliance Fund
II, L.P., Yucaipa American Alliance (Parallel) Fund II, L.P.,
Yucaipa American Alliance Fund II, LLC, Yucaipa American Funds,
LLC, and Yucaipa American Management, LLC. The Complaint alleges,
among other things, that the members of the Company's Board of
Directors breached their fiduciary duties to the Company's
stockholders by approving the merger and authorizing the Company
to enter into the merger agreement, that Mr. Burkle and the
Yucaipa entities are controlling stockholders of the Company and
breached their purported fiduciary duties, and that SBE and Merger
Sub aided and abetted these alleged fiduciary breaches. The
Complaint further alleges that, among other things, Mr. Burkle and
the Yucaipa entities pressured the Company into entering into the
merger agreement and approving the merger and frustrated the
Company's efforts to explore other potential strategic
alternatives; that the merger consideration is financially
inadequate; that the sales process leading up to the merger and
the merger agreement was flawed; and that the deal-protection
provisions in the merger agreement are unduly preclusive and
therefore prevent a potential topping bidder or topping bidders
from making a superior proposal. The Complaint seeks, among other
things, certification of the proposed class, preliminary and
permanent injunctive relief (including enjoining or rescinding the
merger), unspecified damages, and an award of other unspecified
attorneys' and other fees and costs.
The Company believes that the claims asserted in the Complaint are
without merit and intend to defend against them. However, a
negative outcome in these lawsuits, or any follow-on lawsuit,
could have a significant impact on the Company if they result in
preliminary or permanent injunctive relief or damages. The
Company is not currently able to predict the outcome of the
litigation or any follow-up lawsuit with any certainty.
Morgans Hotel Group Co., a Delaware corporation (the "Company"),
was incorporated on October 19, 2005. The Company operates, owns,
acquires, and develops boutique hotels, primarily in gateway
cities and select resort markets in the United States, Europe and
other international locations.
NAT'L FOOTBALL: Turner Attorney Accused of Seeking Double Payment
-----------------------------------------------------------------
The family and estate of the late Kevin Turner claim an attorney
who represented the former Eagles and Patriots running back in the
massive NFL/concussion lawsuit is taking a page out of the Gordon
Gekko handbook, being too greedy while trying to collect his
attorney's fees.
In a motion filed in U.S. District Court for the Eastern District
of Pennsylvania Dec. 14, attorneys for Turner's estate claim
Florida lawyer Steven Marks of Podhurst Orseck is attempting to
"double-dip" on attorney's fees owed to him, including trying to
collect "a portion of Kevin's Monetary Award" -- the payment
Turner's estate is to receive from the nearly $1 billion
settlement reached between the NFL and the over 4,500 plaintiffs
(including Turner) in the massive class-action matter.
The plaintiffs accused the NFL of covering up, for years, the
long-term health dangers caused by head injuries sustained playing
football. Turner was elected to be a class representative when the
many individual lawsuits against the NFL were consolidated into a
master complaint. Marks became one of six attorneys who served as
class counsel, according to the motion, and he will be entitled to
"a significant share of the $112.5 million deposited in the
Attorneys' Fees Qualified Settlement Fund," an amount negotiated
as part of the settlement but that is separate from the money that
will be distributed to the former players. Turner had signed an
"authority to represent" agreement with Podhurst prior to the
class-action suit being filed.
Before Turner died this past March at age 46 after battling
amyotrophic lateral sclerosis (ALS) for years, he repeatedly tried
to resolve the attorney's fees issue with Marks. Marks even
assured Turner that he would act "reasonably and ethically,"
according to the motion. But after Turner's death, the motion
says, Marks reached out to Raymond Turner, Kevin's father, asking
him to sign a new "authority to represent" agreement, confirming
the previous agreement Kevin had signed. The agreement Marks sent
to the estate includes a section that states Marks would be
entitled to 40% of the "proceeds of any gross recovery." Turner is
in line to receive $5 million in his payment package.
"It was a shock. I had talked to Marks and Kevin had talked to him
about changing the fees. And he says, 'I'm going to do the right
thing.' But we never could get an answer," Raymond Turner told the
Daily News. "Kevin had told me, 'I don't want (Marks) to get
anything. The NFL is going to pay him.' That was his last wishes.
(Attorney) Bob (Penza) and I are carrying out his wishes, past the
grave, and doing the things he wanted done. We're not giving
(Marks) a dime. Kevin is not even going to get to see the result
of this, but (his) kids are, and I want them to have what he
wanted them to have. I don't feel good about paying (Marks)
again."
Federal judge Anita Brody approved the concussion settlement in
2015, but several appeals held up the distribution of benefits
before a Supreme Court ruling cleared the final legal hurdle. The
motion filed Dec. 14 by attorney Robert Penza, of the Wilmington,
Del., firm Polsinelli, will be reviewed by Brody. Penza and his
Polsinelli colleagues are working pro bono for Turner's estate.
New York attorney Michael Kaplen says Brody will likely rule
on the matter quickly since the distribution of payments is
set to begin in January. It's possible this outstanding legal
matter could delay Turner's estate receiving his payment package.
"Marks was on the committee (negotiating the settlement) and he's
entitled to part of the $112.5 million," said Kaplen, the past
president of the Brain Injury Association of New York State. "Now
he's trying to take money from two pots. It's a great Christmas
gift to him. Brody will give the motion a good, hard look. She may
put (the attorneys') feet to the fire and ask them to prove what
it is they did to deserve these outrageous sums of money."
Alan Morrison, a George Washington University law professor, said
that Marks has a legitimate argument. "He performed services to
that individual," said Morrison. "And he feels he's entitled to
40%. The judge could issue a broad ruling on the matter." Turner's
estate lawyers argue that Marks' "authority to represent"
agreement became "inoperative as a matter of law when Podhurst
undertook to represent a national class, not Kevin individually."
Marks did not return calls and an email for comment. Chris Seeger,
the co-lead counsel for the plaintiffs, could not be reached.
Meanwhile, the family of the late Junior Seau -- the former
linebacker who committed suicide in 2012 and whose brain revealed
he had the crippling brain disease, chronic traumatic
encephalopathy (CTE) -- opted out of the concussion settlement.
Now they hope to have "their day in court" as they seek separate
legal action against the NFL.
"We've asked that the Court set a status conference in (2017) and
look forward to finally getting the Seaus their day in court,"
Seau family attorney Steven Strauss told The News. "The family
opted out of the settlement, in part because the settlement does
not address the children's claim for the wrongful death of their
father."
The Seau family is just beginning their legal process, while
Raymond Turner is hoping to finally bring closure to their saga
and get the money his late son is entitled to -- without any
deductions for lawyers' fees.
"I believe a little over a year ago we were talking about attorney
fees. I'm on the mindset that per the settlement, NFL, will pay
fees. Is that correct?" Kevin Turner wrote in an email to Marks
dated April 13, 2015, that was attached to the motion. "That seems
to be the only honorable way to do it, otherwise guys who never
even took any action, would wind up receiving 30-40% more than
those who went public when it was not popular to do so."
OCWEN LOAN: Ninth Circuit Appeal Filed in "Moody" Class Suit
------------------------------------------------------------
Plaintiffs Anna Knott, Tom K. Knott and Dana D. Moody
XYZ Company filed an appeal from a court ruling in their lawsuit
titled Dana Moody, et al. v. Ocwen Loan Servicing, LLC, Case No.
2:15-cv-05186-DMG-GJS, in the U.S. District Court for the Central
District of California, Los Angeles.
The appellate case is captioned as Dana Moody, et al. v. Ocwen
Loan Servicing, LLC, Case No. 16-56818, in the United States Court
of Appeals for the Ninth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Opening brief of Appellants Anna Knott, Tom K. Knott and
Dana D. Moody is due on May 17, 2017;
-- Appellee Ocwen Loan Servicing, LLC's answering brief is due
on June 16, 2017; and
-- Appellant's optional reply brief is due 14 days after
service of the answering brief.
Plaintiffs-Appellants DANA D. MOODY, ANNA KNOTT and TOM K. KNOTT
are represented by:
Robert Rafael Ahdoot, Esq.
Theodore Walter Maya, Esq.
Tina Wolfson, Esq.
AHDOOT & WOLFSON, PC
1016 Palm Avenue
West Hollywood, CA 90069
Telephone: (310) 474-9111
Facsimile: (310) 474-8585
E-mail: rahdoot@ahdootwolfson.com
tmaya@ahdootwolfson.com
twolfson@ahdootwolfson.com
Todd S. Collins, Esq.
Eric Lechtzin, Esq.
BERGER & MONTAGUE, P.C.
1622 Locust Street
Philadelphia, PA 19103
Telephone: (215) 875-3000
Facsimile: (215) 875-4636
E-mail: tcollins@bm.net
elechtzin@bm.net
Defendant-Appellee OCWEN LOAN SERVICING, LLC, is represented by:
Robert Bruce Allensworth, Esq.
Brian M. Forbes, Esq.
Robert W. Sparkes, III, Esq.
K&L GATES, LLP
One Lincoln Street
Boston, MA 02115
Telephone: (617) 261-3119
E-mail: bruce.allensworth@klgates.com
brian.m.forbes@klgates.com
robert.sparkes@klgates.com
- and -
Bradley William Gunning, Esq.
Paul W. Sweeney, Jr., Esq.
K&L GATES LLP
10100 Santa Monica Boulevard
Los Angeles, CA 90067
Telephone: (310) 552-5000
Facsimile: (310) 552-5001
E-mail: brad.gunning@klgates.com
paul.sweeney@klgates.com
PONTOON SOLUTIONS: Ninth Circuit Appeal Filed in "Berrellez" Suit
-----------------------------------------------------------------
Plaintiff J. Robert Berrellez filed an appeal from a court ruling
in the lawsuit entitled J. Berrellez v. Pontoon Solutions, Inc.,
et al., Case No. 2:15-cv-01898-CAS-FFM, in the U.S. District Court
for the Central District of California, Los Angeles.
As previously reported in the Class Action Reporter, the Plaintiff
alleged that the Defendants procured a consumer report about him
without providing an Fair Credit Reporting Act-compliant
disclosure and without informing him of his right to receive a
summary of his rights under the statute.
The appellate case is captioned as J. Berrellez v. Pontoon
Solutions, Inc., et al., Case No. 16-56844, in the United States
Court of Appeals for the Ninth Circuit.
The briefing schedule in the Appellate Case is set as follows:
-- Transcript must be ordered by January 13, 2017;
-- Transcript is due on April 13, 2017;
-- Opening brief of Appellant J. Robert Berrellez is due on
May 23, 2017;
-- Answering brief of Appellees Adecco USA, Inc., Bank of
America, N.A., Does, Pontoon Solutions, Inc. and Rose
International, Inc. is due on June 22, 2017; and
-- Appellant's optional reply brief is due 14 days after
service of the answering brief.
Plaintiff-Appellant J. ROBERT BERRELLEZ, on behalf of himself, all
others similarly situated, is represented by:
Chaim Shaun Setareh, Esq.
SETAREH LAW GROUP
9454 Wilshire Boulevard, Suite 907
Beverly Hills, CA 90212
Telephone: (310) 888-7771
E-mail: shaun@setarehlaw.com
Defendants-Appellees PONTOON SOLUTIONS, INC., a Delaware
corporation, and ADECCO USA, INC., a Delaware corporation, are
represented by:
Joel P. Kelly, Esq.
JACKSON LEWIS P.C.
725 S. Figueroa Street
Los Angeles, CA 90017
Telephone: (213) 689-0404
Facsimile: (213) 689-0430
E-mail: KellyJ@jacksonlewis.com
Defendant-Appellee ROSE INTERNATIONAL, INC., a Missouri
corporation, is represented by:
Navneet S. Chugh, Esq.
CHUGH, LLP
15925 Carmenita Road
Cerritos, CA 90703
Telephone: (562) 229-1220
Facsimile: (562) 683-2610
E-mail: Navneet@chugh.com
Defendant-Appellee BANK OF AMERICA, N.A., is represented by:
Bryan A. Fratkin, Esq.
MCGUIREWOODS LLP
800 East Canal Street
Gateway Plaza
Richmond, VA 23219
Telephone: (804) 775-4352
Facsimile: (804) 698-2100
E-mail: bfratkin@mcguirewoods.com
- and -
Michael D. Mandel, Esq.
MCGUIREWOODS LLP
1800 Century Park East
Los Angeles, CA 90067
Telephone: (310) 315-8200
Facsimile: (310) 956-3113
E-mail: mmandel@mcguirewoods.com
RAWSON-NEAL: Class Suit Charges Hospital With Patient Dumping
-------------------------------------------------------------
Mike Heuer at Court House News reports that a state-run
psychiatric hospital in Nevada routinely dumps patients in out-of-
state locations, with suicide the result in several instances,
patients claim in a federal class action.
Plaintiffs Clorissa D. Porter and William D. Spencer are former
psychiatric patients at Rawson-Neal Psychiatric Hospital and say
hospital staff involuntarily discharged them and sent them to out-
of-state destinations.
Porter, 33, says despite knowing their need for psychiatric care,
hospital staff sent them to locations where they knew she and
others could not obtain proper treatment.
"Many prior patients discharged and subjected to 'Greyhound
therapy' . . . . immediately became homeless, and several
committed suicide," Porter says in the complaint.
Porter says she and others "were medicated before their discharge
and required to leave the facility under the influence of powerful
anti-psychotic/tranquilizing medication" and while in a "drugged
state and incompetent to give informed consent."
Hospital staff "physically escorted' them from the hospital to
taxis that took them to the Greyhound Bus Station in Las Vegas,
where they were given pre-paid tickets to out-of-state
destinations, Porter says.
She says Southern Nevada Adult Mental Health Services paid for the
bus tickets, which took her to Flint, Michigan, in January 2013,
and Spencer to Los Angeles in September 2012.
Porter says they traveled without provisions for medical care or
assistance, and there were no prior arrangements for the follow-up
care upon arrival.
She says the hospital staff only gave each of them a "minimum
amount of liquid nutrient and a supply of psychiatric medication
supposedly sufficient for the days of travel," according to her
complaint.
When admitted to Rawson-Neal, Porter says she was "penniless and
homeless," was depressed and "experiencing suicidal ideation," and
had history of bipolar disorder and schizophrenia.
She says hospital staff wrote up a treatment plan that included
obtaining treatment through a program in Caro, Michigan, but the
"treatment plan was intentionally disregarded and violated by her
involuntary discharge," which left her with no way to get from
Flint to Caro.
After she arrived in Flint, Porter says she called Rawson-Neal and
was told by staff there to contact the program in Caro. She then
called a cousin in Las Vegas, who wired her money for food.
Porter says she experienced a mental breakdown while in Michigan
and was admitted to a hospital, which unsuccessfully tried to get
Porter's medical records from Rawson-Neal.
Spencer says he was "severely depressed" when admitted to Rawson-
Neal on Aug. 26, 2012, and discharged a few weeks later with a
one-way ticket to Los Angeles.
He says defendant Dr. Jacob Manjooran told him to call 911 when he
arrived in Los Angeles, but Spencer told Manjooran he did not want
to leave Las Vegas, where he had been living for two years.
On Sept. 20, 2012, though, Spencer says Manjooran told him he was
being discharged that night to a care facility in Pasadena,
California, where he would receive sufficient treatment to return
to work.
After an eight-hour bus ride to Los Angeles with no food or money,
Spencer says he arrived at the bus station with no way to get to
Pasadena and "promptly became homeless, experienced panic attacks
and anxiety," according to the complaint.
Porter says the Sacramento Bee learned of the "'dumping'" of
putative class member James Flavy Coy Brown in Sacramento and
reported that since 2008, about 1,500 Rawson-Neal patients
similarly had been discharged to locations in almost every state
and with "minimum provisions to sustain them during protracted bus
rides."
Brown unsuccessfully sued Rawson-Neal for patient dumping in 2014.
A survey of 30 former Rawson-Neal patients conducted by the Nevada
Bureau of Health Care Quality and Compliance showed many
discharges violated the policies and procedures established by the
Centers for Medicare and Medicaid and Rawson-Neal's own policies,
Porter says in the lawsuit.
In those 30 cases, Porter says an investigation by the Centers for
Medicare and Medicaid faulted Rawson-Neal for not ensuring medical
staff was accountable for the quality of care provided, did not
provide an effective discharge process that applied to all
patients, and did not identify patients at high risk of suffering
"adverse consequences upon discharge without an adequate discharge
plan."
The report also said Rawson-Neal did not provide patients with a
discharge planning evaluation or ensure hospital staff arranged
the initial discharge plan for patients, which caused the hospital
to fail in delivering "statutory mandated care," Porter says.
Porter and the others seek punitive damages and other relief, as
well as a court order barring the hospital from continuing its
practices, plus attorney's fees and legal costs for patient
dumping, disability and wealth discrimination, and Fourth, Eighth
and 14th Amendments violations.
Named as defendants are Southern Nevada Adult Mental health
Services aka Rawson-Neal Psychiatric Hospital; hospital
administrator Chelsea Szklany; Nevada Dept. of Health and Human
Services Director Mike Willden; Nevada Division of Public and
Behavioral Health administrator Richard Whitley; and Rawson-Neal
Associate Medical Director Dr. Leon Ravin.
Also named as defendants are Nevada Bureau of Health Care Quality
and Compliance Chief Kyle Devine, Nevada Psychiatric Medical
Director Dr. Linda J. White, and Rawson-Neal psychiatrists Dr. Rao
Pavvada and Manjooran.
Las Vegas attorney Allen Lichtenstein filed the 31-page class
action and was not immediately available for comment via
telephone.
Administrative officials at Rawson-Neal were out of the office for
the Christmas holiday and unavailable for comment on December 23.
RDI LOGISTICS: Mass. Vacates Summary Judgment in "Chambers" Suit
----------------------------------------------------------------
The Supreme Judicial Court of Massachusetts, Bristol affirmed the
denials of the emergency motion for a protective order and the
motion for reconsideration, but vacated the grant of summary
judgment in the case captioned TIMOTHY P. CHAMBERS & another, vs.
RDI LOGISTICS, INC., & another; DEE & LEE, LLC, & another, third-
party defendants, No. SJC-12080 (Mass.).
The Supreme Judicial Court was called upon in the case chiefly to
consider whether G. L. c. 149, section 148B, the independent
contractor statute, is preempted by the Federal Aviation
Administration Authorization Act of 1994 (FAAAA), 49 U.S.C.
section 14501(c).
The plaintiffs, who contracted with the defendants through small
corporations that the plaintiffs apparently formed for this
purpose, performed services in Massachusetts as furniture delivery
drivers. They brought the putative class action against the
defendants under the independent contractor statute, asserting
that they had been misclassified as independent contractors.
Following the addition of other claims and counterclaims, summary
judgment entered for the defendants dismissing the plaintiffs'
claims on the ground that they were preempted by the Federal
statute.
The Supreme Judicial Court concluded that, while a portion of the
independent contractor statute is preempted by the FAAAA, the
remainder is severable and remains applicable to the plaintiffs'
misclassification claim. The Court also held that neither is
summary judgment dismissing that claim warranted on the separately
asserted basis that the plaintiffs lack standing as individuals to
assert claims for misclassification under the statute. The Court
stated that material issues of disputed fact preclude the entry of
summary judgment on either basis. The Court concluded similarly
that the dismissal, without explanation, of the claim of
retaliation that Timothy Chambers individually asserted under G.
L. c. 149, section 148A, was improper.
Finally, the Supreme Judicial Court reviewed the denial of the
plaintiffs' request for a protective order, brought in the wake of
the defendants' communications with putative class members in
which they were offered payments in exchange for signed releases.
While discerning no abuse of discretion requiring reversal in
these circumstances, the Court acknowledged the legitimate
concerns raised by such communications and the authority of a
judge to enter appropriate protective orders when necessary.
A full-text copy of the Supreme Judicial Court's December 16, 2016
ruling is available at https://is.gd/dL52eK from Leagle.com.
Harold L. Lichten -- hlichten@llrlaw.com -- Peter M. Delano --
pdelano@llrlaw.com -- for the plaintiffs.
Michael T. Grant -- michael.grant@leclairryan.com -- Andrew J. Fay
-- andrew.fay@leclairryan.com -- for the defendants.
ROYAL BANK: Settles Class Action Over 2008 Rights Issue
-------------------------------------------------------
Ned Beale, writing for The Times, reports that Royal Bank of
Scotland plc announced it had reached a settlement with investors
litigating its 2008 rights issue. While elements of the claim
continue, events so far have already changed the UK's landscape
for consumer litigation.
The case is the UK's first major securities litigation. Securities
claims have been brought in US litigation since the 1930s, but
they had not featured in the UK until now. The rights issue
litigation shows that changing in three important respects.
First, it has traditionally been difficult for shareholders to sue
a company's management. However, section 90 of the Financial
Services and Markets Act 2000 imposed liability on management for
prospectuses.
SAUDI ARABIA: Lobbying Efforts to Halt 9/11 Litigation Fails
------------------------------------------------------------
Michael D. Goldhaber, writing for The Global Lawyer, reports that
efforts to pare back the Justice Against Sponsors of Terrorism Act
this term fell short on Dec. 9, despite a gusher of Saudi cash to
lobbyists.
JASTA was passed by Congress on Sept. 28 over a presidential veto.
Its main effect was to clear the way for the revival of In re
Terrorist Attacks on Sept. 11, 2001, the monumental anti-terrorism
case brought against Saudi Arabia and its charities by 9/11
families and insurers for allegedly supporting the al-Qaida
hijackers. In re 9/11 has been dismissed with respect to Saudi
Arabia pending appeal in the New York federal courts.
Sens. Lindsey Graham and John McCain proposed an amendment on Nov.
30 that would confine liability under JASTA to states that
"knowingly" engage with a terrorist organization. Presented as
merely a way to protect the U.S. government from boomerang
litigation, the Graham-McCain amendment was decried by 9/11
families as a dagger to their case.
JASTA's critics had hoped to cram their amendment into the
lame-duck appropriations bill. But shortly before midnight on
Dec. 9, the Senate passed a continuing resolution that manages to
keep the government's lights on without amending JASTA. The House
passed a similar continuing resolution Dec. 8 (H.R. 2028). Even as
Congress loudly averted a government shutdown, it quietly left
JASTA untouched.
To be sure, Sens. McCain and Graham may try to amend JASTA in the
next Congress. But in all likelihood, they have already missed
their last best chance. Any amendment next term must pass through
the Judiciary Committee, says 9/11 plaintiffs' counsel Sean Carter
-- scarter1@cozen.com -- of Cozen O'Connor. In that setting, he
expresses confidence that senators with intimate knowledge of the
act, such as co-sponsors Charles Schumer and John Cornyn, will
safeguard its integrity.
In the long lead-up to the votes, Saudi Arabia spent heavily on
lobbyists to stop or roll back JASTA, and to counter a vigorous
lobbying campaign conducted by the 9/11 families personally. The
New York Times reported in September that the kingdom had spent
over $5 million on public affairs the prior year. According to
The Hill, its rate of spending then rose to $1.3 million a month.
The American Lawyer's review of Foreign Agent Registration Act
statements for the six months ending Aug. 31 shows that Saudi
Arabia paid $500,000 to DLA Piper, and nearly $2 million to Hogan
Lovells. The kingdom has employed lobbyists at a dozen other
firms, including King & Spalding, Brownstein Hyatt Farber Schreck,
and Squire Patton Boggs.
The activity logs reveal hundreds of contacts by Saudi lobbyists
with senior politicians and staffers on Capitol Hill. Hogan
Lovells met on the Saudis' behalf with Graham in February and with
McCain in March. In July, Qorvis MSL Group arranged a meeting for
Saudi officials with Graham, and another with McCain. Through
August, Hogan Lovells reached out to Graham or his chief of staff
at least seven times.
Hogan Lovells, DLA Piper, Qorvis MSL Group and the Saudi embassy
did not respond to The American Lawyer's requests for comment.
SAVEOLOGY.COM LLC: 9th Circuit Appeal Filed in "Stoba" Class Suit
-----------------------------------------------------------------
Plaintiffs Daphne Stoba and George Stoba filed an appeal from a
court ruling relating to their lawsuit entitled George Stoba, et
al. v. Saveology.com, LLC, et al., Case No. 3:13-cv-02925-BAS-NLS,
in the U.S. District Court for the Southern District California,
San Diego.
The appellate case is captioned as George Stoba, et al. v.
Saveology.com, LLC, et al., Case No. 16-56866, in the United
States Court of Appeals for the Ninth Circuit.
As previously reported in the Class Action Reporter, the Stobas
filed a Ninth Circuit appeal from a previous court ruling in their
Case. That appellate case was assigned Case No. 16-80130.
In their complaint, the Stobas allege they were contacted on
multiple occasions on their landline by a telemarking company,
Saveology.com. Defendant Elephant Group, Inc., is the parent
company of Saveology. Saveology made the contacts on behalf of
Defendant Time Warner Cable, Inc. The Stobas allege that their
telephone calls were recorded without their consent and without
the proper notice, all in violation of California law, including
the California Invasion of Privacy Act.
The briefing schedule in the Appellate Case is set as follows:
-- Mediation Questionnaire was due on December 27, 2016;
-- Transcript must be ordered by January 13, 2017;
-- Transcript is due on February 13, 2017;
-- Appellants Daphne Stoba and George Stoba's opening brief is
due on March 24, 2017;
-- Answering brief of Appellees Elephant Group, Inc.,
Saveology.com, LLC and Time Warner Cable, Inc., is due on
April 24, 2017; and
-- Appellant's optional reply brief is due 14 days after
service of the answering brief.
Plaintiffs-Appellants GEORGE STOBA and DAPHNE STOBA, on behalf of
themselves and others similarly situated, are represented by:
Patrick N. Keegan, Esq.
KEEGAN & BAKER, LLP
6156 Innovation Way
Carlsbad, CA 92009
Telephone: (760) 929-9303
E-mail: pkeegan@keeganbaker.com
- and -
James M. Treglio, Esq.
CLARK & TREGLIO LLP
205 W. Date Street
San Diego, CA 92101
Telephone: (619) 239-1321
Facsimile: (888) 273-4554
- and -
Christina Elizabeth Wickman, Esq.
Steven Allen Wickman, Esq.
WICKMAN & WICKMAN, ATTORNEYS AT LAW
500 La Terraza Boulevard, Suite 150
Escondido, CA 92025
Telephone: (760) 732-3300
Facsimile: (619) 271-8656
E-mail: Christina@wickmanlaw.com
Steve@wickmanlaw.com
Defendants-Appellees SAVEOLOGY.COM, LLC, ELEPHANT GROUP, INC., and
TIME WARNER CABLE, INC. are represented by:
Rachel Jari Feldman, Esq.
Bryan Alexander Merryman, Esq.
WHITE & CASE LLP
555 South Flower Street, Suite 2700
Los Angeles, CA 90071
Telephone: (213) 620-7700
E-mail: rfeldman@whitecase.com
bmerryman@whitecase.com
SCHWARTZ LEVITSKY: Court of Appeal Allows Global Class Action
-------------------------------------------------------------
Ilan Ishai, Esq. -- ishaii@bennettjones.com -- and Grace McKeown,
Esq., -- mckeowng@bennettjones.com -- of Bennett Jones LLP, in an
article for JDSupra, report that the Ontario Court of Appeal's
recent decision in Excalibur Special Opportunities LP v Schwartz
Levitsky Feldman, 2016 ONCA 916 addresses when to assume
jurisdiction in a global class action.
When 98 percent of the proposed class members are all non-
residents of Ontario, the company in which they invested is based
in the United States, and the transactions were governed by
American law -- does it make sense to certify a global class in
Ontario? The majority in the Court of Appeal's decision in
Excalibur Special Opportunities LP v Schwartz Levitsky Feldman,
2016 ONCA 916 (Excalibur) says "yes", given that the claim here
was against an Ontario defendant in relation to work it performed
in Ontario.
Factual Background
In 2010, the plaintiff and 56 other accredited investors decided
to invest in Southern China Livestock (Southern China), an
American company that owned and operated hog farms in China. In
making that decision, the proposed class member investors
allegedly relied on an audit report prepared by the defendant, an
Ontario-based accounting firm, which stated that Southern China's
financial statements fairly represented its financial position. A
year later, it was revealed that Southern China had little control
over its revenue and expenses and subsequently became worthless.
The proposed representative plaintiff (an investor in Ontario)
sought to certify a global class action against the defendant for
negligence and negligent misrepresentation.
The Motion Judge Denied Certification
Justice Perell of the Ontario Superior Court of Justice dismissed
the plaintiff's class certification motion. In addition to
preferable procedure issues, Justice Perell found that the class
definition criterion under s. 5(1)(b) of the Class Proceedings Act
was not met because the proposed claim lacked a real and
substantial connection to Ontario. Given that 98 percent of the
proposed class members were non-resident of Ontario, Southern
China was based in the United States, and the transactions were
governed by American law, Justice Perell found the connection to
Ontario to be "modest" or "trivial".
Excalibur appealed to the Divisional Court, where the majority
deferred to and affirmed Justice Perell's decision. In dissent,
however, Justice Sachs was of the view that Justice Perell erred
in failing to find a real and substantial connection between
Ontario and the proposed action.
Appeal to the Court of Appeal
The issue before the Court of Appeal was whether the Divisional
Court erred in deferring to Justice Perell's decision to deny
certification. The majority of the Court of Appeal, largely
agreeing with Justice Sachs' dissent at the Divisional Court,
found that Justice Perell erred in failing to assume jurisdiction
of the global class by:
1. mischaracterizing the claim in a way that prevented him from
finding a real and substantial connection to Ontario (using the
test found in Club Resorts Ltd v Van Breda, 2012 SCC 17), by
improperly focusing on the private placement transaction in the
U.S. Instead, Justice Perell should have focused on the fact that
Excalibur's claim was against a firm of accountants that resided
in Ontario and actively conducted business in Ontario in relation
to an audit that the firm performed in Ontario. Conceived of in
this way, Justice Perell could not have concluded that Ontario's
connection to the claim was either "modest" or "trivial";
2. focusing on whether it would reasonable for the global class
members to expect that their rights would be determined by a
foreign court; and
3. exercising "restraint" in his approach to the issue of taking
jurisdiction over foreign parties. For example, in this case,
considerations of order and fairness were not seriously
challenged. Restraint was therefore not necessary given that the
identity of all class members but one was known and could be
notified directly about the claim and their opt-out options. This
was not a situation where there were unknown and indeterminate
class members.
Justice Blair's Dissent
Justice Blair, dissenting, disagreed with what he referred to as
the majority's misplaced emphasis on the expression "real and
substantial connection" in the Van Breda sense. In Justice
Blair's view, the motion judge properly recognized that the court
had jurisdiction simpliciter over the proposed class action, and
therefore that there was a real and substantial connection in the
Van Breda sense. However, Justice Perell was not using the term
in the Van Breda sense. Instead, he was trying to determine
whether there was a sufficient connection between Ontario and the
subject matter of the dispute such that the Ontario court should
assume jurisdiction over a global class, not whether it could
assume jurisdiction.
Justice Blair argued that the idea that a court should exercise
restraint in assuming jurisdiction over a case with a foreign
element is deeply-rooted in the Ontario judicial approach to that
issue. In that context, Justice Perell appropriately exercised
restraint in considering whether the non-resident class members
would reasonably expect that their rights would be determined in
and by a foreign court. As a result, Justice Perell's decision to
not assume jurisdiction over a global class and therefore deny
certification was entitled to deference.
Summary
In the end, the Ontario Court of Appeal decided to certify the
global class action in Excalibur, overturning Justice Perell's
decision. This decision indicates that an Ontario-based
defendant, which does work that is relied upon by others in
foreign jurisdictions, may be sued in Ontario in a global class
action. But the contrasting views at all levels of the Ontario
judiciary reveals the ongoing uncertainty about the degree of
"restraint" that a court should exercise in determining whether to
assume jurisdiction over foreign parties and certify a global
class.
Whether the defendant seeks leave to appeal this decision or not
is yet to be determined. The Supreme Court of Canada recently
denied leave to appeal from the Court of Appeal's decision in
Kaynes v BP, Plc, 2014 ONCA 580 -- a securities case in which
certification of a global class was denied largely on the basis
that principles of international comity justified adhering to the
U.S. standard of tying jurisdiction to the place where the
securities were traded. Given the apparent jurisdictional
restraint exercised in the Kaynes decisions, if leave to appeal is
granted in Excalibur, it will be interesting to see how the issue
of assuming jurisdiction over a global class holds up to further
judicial scrutiny.
SERVICESOURCE INTERNATIONAL: Motion to Dismiss Weller Suit Pending
------------------------------------------------------------------
Servicesource International, Inc. said in its Form 10-Q Report
filed with the Securities and Exchange Commission on November 9,
2016, for the quarterly period ended September 30, 2016, that the
parties in the Weller class action litigation are awaiting a
ruling from the court on the Company's motion to dismiss.
On July 8, 2015, a single plaintiff filed a putative securities
class action lawsuit, Weller v. ServiceSource International, Inc.
et al., in the U.S. District Court for the Northern District of
California (the "Weller Lawsuit") against the Company and the
Company's former Chief Executive Officer. The Weller Lawsuit was
brought on behalf of purchasers of Company stock during the period
January 22, 2014 through May 1, 2014, and alleges violations under
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934,
as amended.
In connection with the mandatory lead plaintiff appointment
process under the Private Securities Litigation Reform Act
(PSLRA), various law firms issued press releases between July 2015
and September 2015 to search for additional shareholders that
would be willing to serve as lead plaintiffs in this lawsuit.
This solicitation period ended on September 29, 2015 and no other
shareholders came forward, leaving only the named plaintiff as the
sole shareholder seeking to be appointed lead plaintiff. The
court appointed Weller a lead plaintiff on October 21, 2015. At
this time, no motion to certify a class has been filed. The
Company believes that the claims are meritless, and will
vigorously defend itself against such claims. On December 9, 2015,
the Company filed a motion to dismiss the Weller Lawsuit. The
motion has been fully briefed, and the parties are awaiting a
ruling from the court.
SERVICESOURCE INTERNATIONAL: "Patton" Suit Pending in Tennessee
---------------------------------------------------------------
Servicesource International, Inc. said in its Form 10-Q Report
filed with the Securities and Exchange Commission on November 9,
2016, for the quarterly period ended September 30, 2016, that the
case, Sarah Patton, et al v. ServiceSource Delaware, Inc.,
remains pending.
On August 23, 2016, the United States District Court for the
Middle District of Tennessee granted conditional class
certification in a lawsuit originally filed on September 21, 2015
by three former senior sales representatives. The lawsuit, Sarah
Patton, et al v. ServiceSource Delaware, Inc., asserts a claim
under the Fair Labor Standards Act ("FLSA") alleging that certain
sales account representatives and senior sales representatives in
our Nashville location were not paid for all hours worked and were
not properly paid for overtime hours worked. The complaint also
asserts claims under Tennessee state law for breach of contract
and unjust enrichment, however, the plaintiffs have not yet filed
a motion to certify the state law breach of contract and unjust
enrichment claims as a class action.
Beginning October 31, 2016, notice was provided to the potential
FLSA claim class members, who have through December 30, 2016 to
opt in to the class. The Company will continue to vigorously
defend itself against these claims.
SOLARCITY CORP: Seeks Dismissal of Labor Class Action
-----------------------------------------------------
Gordon Gibb, writing for LawyersandSettlements.com, reports that
the plaintiff in a California labor lawsuit that alleged various
violations against California labor law, faced a motion by the
defendant to have the lawsuit tossed out of federal court because
the Court, in the defendant's view lacked jurisdiction in a case
that belongs in California state court, or so it was claimed.
The defendant in the California labor lawsuit is SolarCity Corp.
(SolarCity), a solar energy enterprise based in San Mateo. The
plaintiff, identified as Breana Daugherty, serves as the lead
plaintiff in a proposed class action lawsuit. Allegations
include, but are not limited to non-payment of wages reflecting
federal and state minimums for all hours worked, as well as
allegations that SolarCity failed to issue accurate and timely
wage statements.
SolarCity, in late November, argued that given that all parties
are based in California, the California labor lawsuit thus belongs
in state court. SolarCity petitioned the Court to have the
lawsuit dismissed.
"Plaintiff brings this employee wage and hour class action on
behalf of California citizens, against a California-based
corporation, for claims arising under California state laws,"
SolarCity said, in Court documents. "Illogically, rather than
bring this case in a California state court where it belongs,
plaintiff improperly invokes federal jurisdiction under the Class
Action Fairness Act [CAFA], [but] has failed to meet her burden to
properly plead jurisdiction under CAFA."
There was no word at press time as to the outcome of the
defendant's motion to dismiss the proceedings.
According to Court documents Ms. Daugherty was employed by
SolarCity for a period of about four months, commencing her job as
a sales specialist in June, 2015. Her California labor code class
action was filed in federal court this past September.
Ms. Daugherty's proposed class action lawsuit seeks to represent
any and all employees of SolarCity who served as inside energy
specialists for the California Corporation over a four-year period
ending with the date at which the lawsuit was filed.
The case is Breana Daugherty et al. v. SolarCity Corp., Case No.
3:16-cv-5155, in the US District Court for the Northern District
of California.
In an unrelated case, a California labor code lawsuit was recently
brought against the Einstein Noah Restaurant Group for failure to
pay correct amounts of overtime pay in accordance with California
labor law, amongst other claims.
The proposed class action is Aaron Yi et al v. Einstein Noah
Restaurant Group, Inc. Case No. 16-cv-303146, filed November 23rd
of this year in The Superior Court of the State of California in
and for The County of Santa Clara.
SONY CORP: EU Slaps Fine Over Battery Price-Fixing
--------------------------------------------------
Courthouse News Service reported that the European Commission in
December fined Sony, Panasonic and Sanyo a collective $176 million
for colluding to fix prices and exchange sensitive supply
information in the rechargeable lithium-ion battery market between
2004 and 2007.
SOUTHERN XPOSURE: Ex-Dancer Says Firm Didn't Pay Her Properly
-------------------------------------------------------------
Chris Dickerson at West Virginia Record reports that for the third
time in a month, a local chain of strip clubs finds itself named
as a defendant in a potential class-action lawsuit.
In the latest one, a former exotic dancer claims Southern Xposure
violated the federal Fair Labor Standards Act and state Wage
Payment and Collection Act.
Morgan Powell filed her complaint Dec. 16 in Mercer Circuit Court.
The named defendants are BCC Cafe Inc., BMC Cafe Inc., BRC Cafe
Inc., MMC Cafe Inc. and PMC Cafe Inc., all doing business as
Southern Xposure. Owner Mahesh Patel also is listed as a
defendant.
Morgan Powell says she worked as a dancer at the Princeton and
Bluefield locations from May 2009 to July 2016 under the stage
name of Mary Jane.
She says she worked four to six shifts per week and was required
to work Friday and Saturday from 7 or 8 p.m. until 3 or 4 a.m. She
says the defendants didn't keep complete and accurate records of
time worked and did not pay her for the work duties she performed.
"Defendants implemented and utilized a system under which
plaintiff was required and compelled to pay to defendants, out of
her personal tips, $35.00 for each shift worked by plaintiff," the
complaint states. "Plaintiff was on several occasions fined . . .
up to $1,000.00 for alleged violations of policies of defendants,
including talking with a customer at a location away from the
property."
Powell also claims the defendants set the order in which dancers
were required to perform on stage, required her to be dancing on
stage if she was not performing a private dance, controlled the
music to which she performed, controlled her performance, set and
controlled prices she could charge for private dances and lap
dances, collected all payments for private dances and champagne
dances, required her to become fully nude when dancing on stage
even if there were no customers in the club and exercised control
over her in the work place.
Because of the defendants' actions, Powell claims she was not paid
at an hourly rate at least equal to the minimum wage set by the
Fair Labor Standards Act. She says she and other potential members
of the class action were improperly classified as independent
contractors, and she says the number of potential members of the
class action exceeds 40.
Powell seeks joint and several compensatory damages against the
defendants for money unpaid to bring her and other potential class
members to minimum FLSA wage standards and for unpaid wages under
the Wage Payment and Collection Act. She also seeks court costs,
attorney fees and other relief.
She is being represented by attorney Garry G. Geffert of
Martinsburg -- geffert@wvdsl.net -- and Gregg G. Greenberg of
Zipin, Amster & Greenberg -- ggreenberg@zagfirm.com -- LLC in
Silver Spring, Md. The case has been assigned to Circuit Judge
William J. Sadler.
Earlier this month, those attorneys filed a similar lawsuit on
behalf of three female bartenders against Southern Xposure in
Mercer Circuit Court.
Nicole Selby, Michelle Lawson and Jessica Brady claim the
defendants agreed to pay them at a rate of about $8 per hour plus
tips from customers. But, they claim the defendants did not pay
their wages for all hours worked each week. They say they
typically were shorted two to five hours of work each week. It
also says the defendants withheld tips from the plaintiffs. They
say this is a violation of the WPCA.
And both cases are similar to class action filed Nov. 17 by a
Raleigh County man who claims Patel and the chain of clubs also
violated state wage laws.
Billy Grossi says he was hired by the defendants on an hourly
basis, but he says "he was not paid for any of his time worked,
and not paid overtime."
SOUTHWESTERN ENERGY: Ark. High Court Backs Class Certification
--------------------------------------------------------------
Emily Walkenhorst at Northwest Arkansas reports that the Arkansas
Supreme Court has upheld lower court decisions to certify classes
in two circuit court lawsuits over royalties paid by a natural-gas
company operating in the Fayetteville Shale.
The class-action lawsuits -- known as Stewmon v. SEECO, et al, and
Snow v. SEECO Inc. -- claim to represent thousands of Arkansas
property owners who signed natural-gas drilling leases with
Southern Electric Equipment Co., a subsidiary of Southwestern
Energy Co. A third class-action lawsuit, in federal court -- Smith
v. SEECO, et al -- claims to represent Arkansans and others who
are out of state, and its class was certified earlier this year.
The leases were signed during the natural-gas drilling boom in the
Fayetteville Shale, which stretches from the Mississippi River to
western Arkansas. The boom went bust when natural-gas supplies
grew and prices dropped.
Tim Holton, the attorney in the Stewmon case, said he plans to ask
the judge in his case to approve notices to send out to class
members and to set a trial date in the case.
A reporter attempted, without success, to contact attorneys in the
Snow and Smith cases.
The company's attorneys argued in each case that Southwestern
Energy was allowed to deduct any "reasonable" costs from royalties
that were incurred through the sale of gas.
Southwestern Energy released a statement December 21 to the
Arkansas Democrat-Gazette saying the company was still fighting
the three lawsuits.
"Southwestern is defending these actions vigorously, as it
believes all amounts it has deducted comply fully with the
controlling lease provisions," the statement, sent by spokesman
Christina Fowler, said.
The cases are some of the numerous lawsuits that have been filed
in recent years in Arkansas over whether people who leased mineral
rights to natural-gas companies were adequately compensated
according to their contracts. Such lawsuits have become common
nationwide, including in Pennsylvania, Texas, Oklahoma, Ohio and
Louisiana. Some cases have been settled in Arkansas and other
states.
Many of the lawsuits contend that natural-gas companies --
including the shale's biggest companies, Southwestern Energy Co.,
XTO Energy and BHP Billiton, which purchased Chesapeake Energy's
assets in the shale -- have withheld payments improperly in a
variety of ways from people who signed leases. Those ways,
according to the suits, include charging too many fees, such as
for services through subsidiary companies.
Southern Electric Equipment Co. (known as SEECO), DeSoto Gathering
Co. and Southwestern Midstream Services -- all subsidiaries of
Southwestern Energy Co. -- are the defendants in the Stewmon case.
"The corporate structure of these three entities is purposefully
commingled and intertwined to permit the Defendants to buy and
sell services from each other, with commensurate 'mark ups' or
profits derived from these sales and purchases," the Stewmon
complaint reads.
SEECO is the only defendant in the Snow case. In the federal Smith
lawsuit, the defendants are Southwestern Energy subsidiaries
SEECO, SWN Production (an alternate name for SEECO), DeSoto
Gathering and Southwestern Energy Services Co.
The Supreme Court unanimously upheld the classes in the Stewmon
and Snow cases on Dec. 8.
In the Stewmon case, Justice Josephine Hart wrote the opinion
affirming the class certification by now-deceased 1st Circuit
Judge L.T. Simes. She was joined by Justice Robin Wynne and
Special Justices Bob Estes, Scott Richardson and M. Scott
Willhite. Justice Rhonda Wood, joined by Chief Justice Howard
Brill, wrote a concurring opinion. Justices Karen Baker, Paul
Danielson and Courtney Goodson recused from the case.
In the Snow case, Wynne wrote the opinion affirming the class
certification by 15th Circuit Judge Terry Sullivan. Wynne was
joined by Hart, Estes, Richardson and Willhite. Brill and Wood
again concurred, and Baker, Danielson and Goodson again recused.
Court Ruling in Snow
In SEECO's appeal of the Snow class certification, attorneys
challenged the circuit court's decision to limit the class to
Arkansas residents.
In his affirming opinion, Wynne wrote that circuit courts have
broad discretion on classes and that the Supreme Court would not
grant or deny a class unless it could identify abuse of that
discretion.
In her concurring opinion, Wood wrote that she believed the
certified class could be confirmed but that she was troubled by
the case.
"I write to point out that this class action might have
significant manageability problems going forward," Wood wrote.
"The crux of this problem lies with the class definition, which
needlessly limits the class to citizens of Arkansas."
The class allows for Arkansans who co-own leases with people who
live outside the state, Wood wrote, which could cause the circuit
court to re-evaluate the class.
"It is clear to me that the definition was designed to keep this
case out of federal court," Wood continued. "While the plaintiff
is the captain of its case, this should not exclude all other
considerations. I am troubled that the circuit court allowed this
consideration to guide its class-certification order. The best
practice is to ignore these forum-shopping concerns and instead
focus on efficiency, which at any rate is the primary purpose of
the class-action mechanism."
Wood and Brill concurred in the court's decision on the Stewmon
case for the same reasons.
Court Ruling on Stewmon
In their appeal of the Stewmon case, SEECO's attorneys argued
that, among other things, the class definition was flawed and that
competing lawsuits should be eliminated. They were referring to
cases other than the Snow lawsuit.
Stewmon's attorneys argued that SEECO's claim about competing
lawsuits was beyond the scope of what was being appealed. The
Supreme Court agreed, noting in its Dec. 8 opinion written by Hart
that it "will not entertain" issues other than the class
certification.
The Supreme Court also concluded that the class definition
identified clear, objective criteria for who would be covered: an
Arkansas resident who signed a gas lease with SEECO by Sept. 27,
2013. That is the date the Stewmon case was filed.
The high court also rejected SEECO's argument that Stephanie
DeVazier -- daughter of the now-deceased Sara Stewmon, who filed
the lawsuit -- was not properly appointed as class representative.
DeVazier was approved in March 2016 by Circuit Judge Kathleen
Bell.
Details of the suits
The three suits allege SEECO improperly reduced payments to
property owners who had leased mineral rights to the company or a
subsidiary.
Eldridge Snow and M.L. Tester sued in Conway County Circuit Court
in 2010; Sara Stewmon sued in St. Francis County Circuit Court in
2013; and Connie Jean Smith sued in federal court in Little Rock
in 2014. Smith lives in Oklahoma but owns property in the
Fayetteville Shale.
The Snow and Stewmon cases limited their classes to people with
Arkansas addresses.
Stewmon sought to represent about 11,000 property owners.
Stewmon's class was certified in September 2014.
The Snow case class was certified in October 2014 to represent
people who had leases on or after Jan. 1, 2006, which plaintiff's
attorneys had estimated in filings to be about 11,000 leases and
about 8,000 royalty owner payees.
Smith's federal case initially limited itself to people outside
Arkansas who own property in the state and entered leases with
Southwestern Energy and four subsidiaries.
In December 2015, Smith's attorneys -- in response to U.S.
District Judge Billy Roy Wilson's rejection of the first proposed
class -- pitched an "alternative" class that added Arkansas
residents who had leases after Jan. 1, 2006. It was certified in
April by U.S. District Judge Brian Miller, who had taken over the
case. An expert for Smith estimated that Arkansans had signed more
than 10,000 applicable leases and out-of-staters had signed more
than 6,000. Earlier this year, SEECO sent out notices to 12,600
addresses.
SEECO's attorneys did not oppose the class certified in the Smith
case.
Holton, the attorney in the Stewmon case, said he'd never heard of
a federal case being certified while a state case's class was on
appeal before the Supreme Court.
According to a Dec. 2 filing in the Smith case, 601 people opted
out of being class members by the Nov. 11 deadline set in that
case. That means they could seek damages as class members in
Stewmon or Snow if they are Arkansas residents.
Arkansas residents who did not opt out of Smith still could be
class members in Stewmon or Snow, legal experts say. Class members
are people who may seek damages from the company if a judgment is
made against the company or if a settlement is reached in the
case.
In a related matter, DeVazier, from the Stewmon case, sued the
lawyers for Smith and SEECO earlier this year, alleging that they
would not adequately represent her or her fellow class members
because of attempts by Smith's attorneys to settle the class-
action cases without consulting the class members.
Attorneys for SEECO, representing themselves, and attorneys for
Smith said Stewmon's attorneys were not invited to mediation
because of expectations that the Stewmon lawsuit would be tossed
out of court and because of Stewmon's attorneys' "penchant for
needless disruption" that would doom the possibility of reaching a
settlement.
U.S. District Judge Kristine Baker dismissed the case, saying
DeVazier's claim of potential injury was "too speculative."
Effects of One Case on Others
Going forward, legal experts say having multiple cases
representing many of the same people could have an impact on each
other, even if they proceed separately.
"This is generally what we call a 'race to judgment,'" said
Theresa Beiner, associate dean and professor of civil procedure at
the University of Arkansas at Little Rock William H. Bowen School
of Law.
If the federal case is resolved first, that could bind anyone who
didn't opt out of it to that case, Beiner said. If a state case is
resolved first, that could bind all Arkansas residents to the
state case, leaving the federal case to represent only out-of-
state residents, she said.
The defendants could ask a judge to stay the other cases while one
proceeds, Beiner said.
Typically, lawsuits that seek to represent the same classes are
combined into one case, said Joshua Silverstein, a professor at
the Bowen School of Law who has worked on class-action cases.
Often those cases that are combined are all federal cases or all
state cases. State and federal courts have different rules for
class certification, he said.
Having three cases pursuing the same claims and representing many
of the same people could be problematic if one case is settled or
decided before the other, which Silverstein said is "virtually
inevitable."
A resolution in another court case "can have a binding impact on a
related case with the same parties," Silverstein said.
"That's one of the reasons the cases are always consolidated," he
said.
Both Beiner and Silverstein said they had never seen a situation
like the one in the SEECO cases.
"That doesn't mean it doesn't happen," Beiner said.
SPLASH NORWALK: Denied Workers' Wages, Suit Says
------------------------------------------------
Macaela J. Bennett at News Times reports that a Bridgeport
resident is accusing car-care company Splash Norwalk of forcing
him and other employees to work several hours every day without
pay.
In a class action lawsuit filed December 22, plaintiff Javier
Llantin claims the Greenwich-based company forces employees to
clock out during slow times but requires them to stay on site
without pay. Llantin alleges that his manager fired him after
working at Splash Norwalk for six years because he complained
about the practices, according to a separate individual
retaliation complaint.
Both suits were filed with the Superior Court in Bridgeport. The
individual complaint quotes Llantin's manager swearing at him
before terminating his employment in early October. Afterward,
Llantin applied and was approved for unemployment benefits. Splash
appealed the Department of Labor's award by arguing that Llantin
quit, according to the retaliation complaint. The department
maintained Llantin's benefits.
Llantin seeks the wages he and other employees should have earned
under the Connecticut Minimum Wage Act, according to the class
action lawsuit. In his individual retaliation complaint, Llantin
is seeking to recoup double the amount of his lost wages and
benefits.
Splash did not return a request for comment.
Companies refusing to pay employees their due wages is one of "the
most commonly violated laws in the workplace," said Gary Phelan,
the attorney representing the plaintiff. It's a "fairly common"
practice among big employers, because some think they can get away
with it and it can be financially beneficial, he said.
Wage and hour violations are among the fastest growing parts of
workplace law, said Phelan, whose Stratford law firm focuses on
labor and employment law. But employees are becoming more aware of
their rights and willing to speak up for them, he said.
States, including Connecticut, are increasingly cracking down on
illegal employment practices, he said. Phelan cited Gov. Dannel P.
Malloy's 2015 approval of a law that "increases the likelihood an
individual can recover double the amount of their damages, so
there's more of a penalty for violating the law."
Splash Car Wash was founded in 1981 by longtime Greenwich
residents Mark Curtis and Chris Fisher, according to the company's
website. It's grown into one of Fairfield County's largest car-
care companies with hundreds of employees and 18 locations,
including Cos Cob, Bridgeport, Norwalk and Stamford.
ST. CLAIR COUNTY, IL : Treas. Loses Bid to Dismiss Class Action
---------------------------------------------------------------
Heather Isringhausen Gvillo, writing for Madison-St. Clair Record,
reports that District Judge Staci Yandle denied a St. Clair County
tax buyer's motion to dismiss a class action alleging St. Clair
County Treasurer Charles Suarez and several tax buyers
participated in a bid rigging conspiracy.
Judge Yandle filed her order denying dismissal for defendant
Barrett Rochman on Nov. 17.
Mr. Rochman filed a combined motion to dismiss through attorneys
Andrew Kasnetz, Timothy Sansone and Natalie Kussart of Sandberg
Phoenix & von Gontard in St. Louis.
Defendants Kenneth Rochman, Sabre Group LLC and SI Securities LLC
joined in the motion.
The defendants argued that the complaint is time-barred under the
statute of limitations.
In her order, Judge Yandle held that the complaint raises a
reasonable inference that the limitations period was tolled until
2014 when the plaintiffs discovered the injury.
The defendants also argued that count I for "civil conspiracy"
should be dismissed because antitrust claims cannot be asserted as
civil conspiracy claims under Illinois law.
Judge Yandle noted that while the plaintiffs cannot recover under
both the Illinois Antitrust Act and common law theories, they may
allege both theories and choose which theories of recovery to
pursue at trial.
The defendants further argue that count II for "money had and
received" should be dismissed because the complaint fails to state
a claim. They specifically claim that the Illinois Property Tax
Code permits an 18 percent penalty rate, and no more than an 18
percent penalty was charged.
Judge Yandle held that the plaintiff's allegation that the
illegally rigged tax sales unfairly ensuring the highest penalties
would be charged is sufficient to state a claim for money had and
received.
The defendants also argued that counts III and IV failed to state
a claim under the Sherman Act. They claim the plaintiffs make
"fundamentally deficient allegations."
However, Judge Yandle wrote that "proof of an explicit agreement
is not required to plead a Sherman Act antitrust conspiracy
claim."
"Here, Plaintiffs pled sufficient facts to survive a motion to
dismiss. The factual allegations include specific details about
the agreement and how sales were structured to eliminate
competition," the order states.
The plaintiffs also provided allegations that sufficiently
identify a relevant market, she held.
"Competition is clearly envisioned by the Property Tax Code,"
Judge Yandle wrote. "Further, Plaintiffs' allegations reasonably
set forth tax lien certificates as products that fall within the
definition of commodity."
Judge Yandle further held that the plaintiffs sufficiently pled
exclusionary conduct and monopoly power to survive a motion to
dismiss.
"The alleged conduct is exclusionary in that it 'had the effect of
preventing other competitors from receiving the winning bid at the
tax sale auctions' by 'fixing, controlling, maintaining, limiting,
and/or discontinuing the bidding of lower rates during the auction
process,'" the order states.
"The alleged arrangement between Defendant Suarez and tax-
purchaser defendants prevented competitive bids except on less
lucrative properties, which were allowed in order to conceal the
conspiracy," it continued.
As an alternative to dismissal, the defendants moved for a more
definite statement or to strike the allegations regarding
fraudulent concealment, which was denied.
Calling motions to strike "time wasters," Judge Yandle held that
"the challenged paragraphs and exhibits are neither immaterial nor
scandalous and that Defendants will not be significantly
prejudiced by them."
Two couples sued Mr. Suarez and tax buyers in the U.S. District
Court for the Southern District of Illinois on Oct. 17, 2014,
alleging a conspiracy similar to one that sent former Madison
County treasurer Fred Bathon to prison.
John Bloyer Jr., Adrianne Bloyer, Kevin Dvorak and Kathleen
Dvorak, all of O'Fallon, claim the alleged conspirators
artificially inflated interest rates at tax sales in 2007 and
2008. They claim Suarez illegally rigged bids at sales of
delinquent taxes to enrich Democratic campaign contributors.
The plaintiffs sought access to the defendants' sealed criminal
sentencing documents in their discovery requests. The defendants
objected.
Mr. Rochman also answered the plaintiff's class action complaint
on Nov. 17, asserting 14 affirmative defenses.
Mr. Rochman argued that he was not a conspirator in this action.
He says that if a conspiracy is proven, that third parties or
co-defendants who participated in the alleged conspiracy are
liable for all damages.
The defendant alleged that the voluntary payment doctrine bars
recovery because someone on the plaintiffs' behalf voluntarily
paid the defendant an 18 percent penalty rate to redeem their
properties.
Mr. Rochman also argued that the claims are barred by the doctrine
of accord and satisfaction, "because the payments of the disputed
amounts to redeem the Plaintiffs' delinquent property taxes sold
at the Madison County real estate tax sale auctions conducted in
2005 through 2008, were tendered as full payments of all demands,
accepted by the Defendants with an understanding that such tender
was full payment of all disputed amounts owed to the Defendants."
Similar to the defendant's motion to dismiss, Mr. Rochman also
argued that the complaint is barred by the statute of limitations
and the complaint fails to state a claim.
STATE FARM: Racketeering Class Action Heads to Trial
----------------------------------------------------
Sue Reisinger, writing for Corporate Counsel, reports that the
policyholders who sued State Farm Mutual Automobile Insurance Co.
and its in-house counsel for racketeering have cleared a major
hurdle after a federal appeals court denied State Farm's petition
to block the class action.
The appellate judges on Dec. 8 also ordered to be released several
documents that had been under seal, including an expert's 145-page
report that tracks a multimillion-dollar money trail at the heart
of the racketeering charge. The trail traces the dark money from
the company through various groups and then allegedly into the
campaign of a state Supreme Court justice who eventually ruled in
State Farm's favor on a billion-dollar case.
In denying to hear State Farm's appeal of class action
certification, the U.S. Circuit Court of Appeals for the Seventh
Circuit returned the case to U.S. District Court in East St.
Louis, Illinois, to proceed with trial.
State Farm spokesman Justin Tomczak issued this statement: "We
respect the court's decision . . . We will continue to vigorously
defend against this case, which improperly and erroneously attacks
not only State Farm, but also the integrity of our legal system."
"Under plaintiffs' theory, any company that contributes to any
organization could be deemed solely responsible for any
contribution that organization makes to others," says
Mr. Tomczak. "This assault on the First Amendment would have a
far reaching, chilling effect on corporate and institutional
philanthropy, sponsorship and partnership."
What's behind the case
The story of why the policyholders accuse State Farm of violating
the Racketeer Influenced and Corrupt Organization Act was detailed
in Corporate Counsel magazine last month, titled "Is Justice for
Sale in Illinois?"
According to the suit, State Farm manipulated the 2004 election of
Lloyd Karmeier to the Illinois Supreme Court so that he could
allegedly help overturn a $1 billion state court verdict against
the company. State Farm denies the allegation.
The newly released documents say Justice Karmeier originally
planned to abstain on State Farm's appeal of the state judgment,
but changed his mind when the state Supreme Court deadlocked,
which would in effect have affirmed the verdict. He then refused
the plaintiffs' request to recuse himself, and voted in State
Farm's favor, overturning the judgment.
The new documents lay out more completely the roles of State Farm
in-house counsel William Shepherd, and of Edward Murnane, the man
Shepherd helped hire to, in effect, recruit Justice Karmeier and
direct his campaign for the judgeship. Messrs. Shepherd and
Murnane are co-defendants with the company in the class action
racketeering suit.
The documents also discuss roles played by then-State Farm general
counsel Kim Brunner and in-house counsel David Hill. At the time
Brunner was working with the U.S. Chamber's Institute for Legal
Reform (ILR), serving on its three-person audit committee task
force overseeing the ILR budget. State Farm contributed some $2
million to the ILR in 2003-2004 -- money which the plaintiffs
claim was funneled back to the Karmeier campaign.
The documents contain numerous emails, although some remain under
seal. In one that was released, Mr. Murnane advises Intel Corp.
to pass its campaign contribution to Justice Karmeier through the
U.S. Chamber to maintain secrecy about its donation. "There are
some other options for contributions in Illinois, and I know you
have had some discussions with the U.S. Chamber and they certainly
are being helpful to us in the overall cause," Mr. Murnane writes.
State Farm's Hill was appointed to the ILR elections task force,
the documents say, to "provide recommendations as to important
judicial races to be funded by the ILR." He also served on the
board of directors of the American Tort Reform Association, which
also allegedly funneled money to Justice Karmeier's campaign.
Forensic accountant's report follows the money
But perhaps the most damning of the documents, as far as State
Farm is concerned, is the report filed by forensic accountant
Thomas Myers, a nationally known expert who trains government
employees on fraud and other financial white-collar crime.
"The results of my research and analysis in this matter
overwhelmingly support the allegation that defendants played a
critical, albeit clandestine, part in nearly every facet of
Justice Karmeier's campaign," Mr. Myers writes. "Despite this,
State Farm was so confident that it had hidden its extensive
involvement in the Karmeier campaign that it brazenly remonstrated
to the Illinois Supreme Court, 'State Farm, itself, made no
contribution to the campaign.'"
Mr. Myers' report graphically displays a money trail showing State
Farm paid out over $3.5 million through nine organizations that
eventually made major contributions to the Karmeier campaign. The
organizations included the Illinois Republican Party; Illinois
Chamber and its political action committee; U.S. Chamber's
Institute for Legal Reform; Illinois Jobs Coalition; Civil Justice
Reform Group; American Tort Reform Association; Illinois Civil
Justice League, which Messrs. Shepherd founded and Murnane headed,
and its political action committee JUSTPAC.
One example from many in the report: State Farm made three $50,000
contributions to the Illinois Jobs Coalition during the peak of
the Karmeier campaign between May and September 2004. Each was
invoiced to then-State Farm CEO Edward Rust Jr., approved by in-
house counsel Hill, and made reference to in-house counsel
Shepherd.
The final contribution was accompanied by a letter from Shepherd
stating that the contribution could not be used for political
purposes. However, on the same day that State Farm wrote its
final $50,000 check, for a total of $150,000 to the coalition, the
group transferred $150,000 to JUSTPAC, which in turn transferred
the same amount to Justice Karmeier's campaign. Mr. Myers
includes copies of the cancelled checks with names and dates.
But State Farm's Tomczak remains optimistic. "Plaintiff's
unsuccessful assertion and reassertion of these allegations should
not obscure the fact that State Farm conducts business with
integrity, in the best interests of our customers," he says.
"Numerous courts of law have rejected these allegations, and we
trust they will be rejected again when this case is resolved."
It is true the Illinois Supreme Court repeatedly rejected
allegations that State Farm manipulated Justice Karmeier's
election. But no court has yet ruled on the racketeering claim,
which is supported by the new money trail evidence in Myers'
report.
* * *
John Huetter, writing for Repairer Driven News, reports that U.S.
Southern District of Illinois Judge David R. Herndon in September
approved class-action certification to what could be more than
4 million current and policyholders in Hale et al v. State Farm et
al. All would be eligible for a piece of the potential billions
of dollars in damages if the case proved successful. (At the very
least, you'd think they'd make the $1.05 billion back.)
If you're part of this group, you're (again) a plaintiff:
All persons who were members of the certified class in Avery v.
State Farm Mut. Auto. Ins. Co., No. 97-L-114 (First Jud. Cir.
Williamson County, Ill.), more specifically described as:
All persons in the United States, except those residing in
Arkansas and Tennessee, who, between July 28, 1987, and February
24, 1998, (1) were insured by a vehicle casualty insurance policy
issued by Defendant State Farm and (2) made a claim for vehicle
repairs pursuant to their policy and had non-factory authorized
and/or non-OEM (Original Equipment Manufacturer) 'crash parts'
installed on their vehicles or else received monetary compensation
determined in relation to the cost of such parts.
The new Hale lawsuit argues that Judge Karmeier (who is not a
defendant but will be deposed) should have recused himself or been
prevented from hearing the case, as State Farm allegedly played a
huge role in his campaign and contributed more than $4 million of
Judge Karmeier's $4.8 million war chest. State Farm denies those
allegations.
Judge Karmeier denies any bias, Saint Louis Public Radio reported
in a comprehensive 2015 piece on the case, part of which first
appeared in Illinois Issues. But that might not matter. In 2009,
the U.S. Supreme Court threw out a West Virginia case "involving a
party's political and financial influence to elect a justice whose
vote it sought for its appeal," according to the Hale suit.
Because of Caperton et al v. A.T. Massey Coal Co, et al, the
plaintiffs argue, it's fair to raise the same federal issue with
the State Farm non-OEM parts decision.
It was a rough couple of days for State Farm. On Dec. 6, the U.S.
Supreme Court upheld a ruling against it in favor of two former
claims adjusters who said "petitioner instructed them and other
adjusters to misclassify wind damage as flood damage in order to
shift petitioner's insurance liability to the Government"
following Hurricane Katrina, according to the unanimous decision
by Justice Anthony Kennedy. State Farm had argued in 2011 that
the adjusters' former attorney had violated a seal five years
prior, and therefore the entire case should be dismissed.
"The court decided against dismissal. Petitioner did not request
some lesser sanction. The case went to trial, resulting in a
victory for respondents on what the Court of Appeals (which also
upheld denying the dismissal motion) referred to as a 'bellwether'
claim regarding a single damaged home," Justice Kennedy wrote.
According to the Wall Street Journal, the adjusters received $2.9
million in attorneys fees and $227,000 in damages, and "The case
now returns to trial court for further litigation that could
expose State Farm to additional damages for fraud in processing
claims in the region."
SYNGENTA: Appeals Court Affirms Ruling in GM Maize Class Action
---------------------------------------------------------------
J.R. Pegg, writing for Agrow, reports that a US federal appeals
court has rejected Syngenta's bid to reverse a lower court ruling
that allows hundreds of thousands of farmers to pursue damages
from the company for alleged disruptions to the US maize market.
TATA SONS: Minority Shareholders File Class Action in India
-----------------------------------------------------------
Moneylife reports that in what will probably be the first class
action in India, several minority shareholders of Tata companies
have filed a case against Tata Sons, its directors, trustees of
the Tata trusts seeking damages to the tune of a whopping Rs41,832
crore as claimed erosion of shareholder value after the removal of
Cyrus P Mistry as Chairman of Tata Sons. This is significant for
several reasons. It means that the Tata vs Mistry battle will be
heard in court, but from the viewpoint of minority shareholders.
Secondly, even in Tata Consultancy Services (TCS), where the Tata
Sons holding of a 70% stake made Cyrus Mistry's removal a mere
formality, almost 20% of the shareholders (a huge 70% of the non-
promoter shareholders) backed Mr Mistry. All this and more will
play out in court in the coming months.
In the petition, the non-promoter and minority shareholders, also
requested the Court to, "Declare removal of Cyrus P Mistry and
extraordinary general meetings (EGMs) called by Tata Group
companies (for removal of Mr Mistry and Nusli Wadia as Directors)
as illegal, ultra vires to the Articles of Associations (AoA) and
against shareholders' interest of the Tata group and its companies
as 'the same was motivated and for the benefit not of the Tata
Group of companies but for the malafide and oblique interest of
the Trustees and in particular Mr Ratan Tata'."
Justice SJ Kathawalla of the Bombay High Court allowed the suit to
be filed in representative capacity or as a class action suit.
"The plea before Justice Kathawalla was for permission under Order
1, Rule 8 of the Civil Procedure Code, a provision that says that
one or more persons, may with permission of the court, sue or
defend, on behalf of all interested individuals," says a report
from Times of India.
The petitioners say, "The Defendants, Amit Chandra (Director of
Tata Sons and Trustee of Sir Ratan Tata Trust), Venu Srinivasan
(Director of Tata Sons and Trustee of Sir Dorabji Tata Trust), NA
Soonawala (Trustee of Sir Ratan Tata Trust and Sir Dorabji Tata
Trust), JN Tata (Trustee of Sir Ratan Tata Trust), KB Dadiseth
(Trustee of Sir Ratan Tata Trust), RK Krishna Kumar (Trustee of
Sir Ratan Tata Trust and Sir Dorabji Tata Trust), SK Bharucha
(Trustee of Sir Ratan Tata Trust), NM Munjee (Trustee of Sir
Ratan Tata Trust), R Venkataramanan (Trustee of Sir Ratan Tata
Trust and Sir Dorabji Tata Trust), Dr Amrita Patel (Trustee of Sir
Dorabji Tata Trust) and VR Mehta (Trustee of Sir Dorabji Tata
Trust) as trustees (acting at the instance of Mr Ratan Tata) under
whose behest Tata Sons had to replace its Executive Chairman, have
therefore inflicted an inexplicable and unexplained loss and
damage on public shareholders of these Tata companies to the tune
of Rs43,088 crore (the difference in market capitalisation between
October 24, 2016 and December 2, 2016)."
"Defendants Amit Chandra, Ajay Piramal (Director of Tata Sons),
Venu Srinivasan, Nitin Noharia (Director of Tata Sons), Ranendra
Sen (Director of Tata Sons) and Vijay Singh (Director of Tata
Sons), who voted in favour of replace of Mr Cyrus Mistry without
any reasons being offered are also jointly and severally liable by
reason of their breach of fiduciary duty owed to publish
shareholders and stakeholders . . . Tata Sons has in the EGM
notices sent by it to group listed companies for removal of
Mr Cyrus Mistry as Mr Nusli Wadia as directors, held out a veiled
threat to withdraw the 'Tata' brand in the event the non-promoter
shareholders of the listed companies fail to support the removal
of Mr Cyrus Mistry and Mr Nusli Wadia. It is evident that Tata
Sons is using its right under the Tata Brand Equity and Business
Promotion Agreement, which gives it ownership over the 'Tata'
brand to arm twist the non-promoter shareholders of these
companies into following its dictates."
"At the behest of Tata Sons further illegal acts continue to
perpetrate. For example, Tata Consultancy Services (TCS), a
listed company, announced to stock exchanges on November 9, 2016,
that its Executive Chairman Cyrus Mistry stood replaced by one
Mr Ishaat Hussain. Neither was meeting of the Board of Directors
of TCS convened nor was a circular resolution passed for such
replacement. It is evident from the public filings in stock
exchanges that the exchanges asked for an explanation of such
conduct and were told that the action was pursuant to the Articles
of Association of that company, particularly Article 90 of the AoA
of TCS, clearly requires the Board of Directors to take decisions
on appointments while Tata Sons may only make nominations," the
petitioners allege.
The amount of Rs41,832 crore sought by these minority shareholders
is calculated taking into consideration the share price of Indian
Hotels Co Ltd, Tata Chemicals, TCS, Tata Global Beverages, Tata
Motors, Tata Power and Tata Steel during 24th October and 6
December 2016, when the suit was filed.
Separately, four shareholders of Tata Steel, Tata Motors and Tata
Chemicals approached the Bombay HC against the special notice
issued by these companies to remove Nusli Wadia as independent
director from the company boards. The shareholders, led by one
Janak Mathuradas, have asked for an order to market regulator
Securities and Exchange Board of India (SEBI) for the promoters to
abstain from voting on any resolution seeking removal of an
independent director at the EGMs of the three companies says a
report from Business Standard.
As per the report, the petitioners also impleaded Ministry of
Corporate Affairs and Ministry of Law.
Tata Sons is the unlisted holding company of the Tata group. Some
66% of its shares are owned by the various Tata trusts, mostly
importantly Sir Dorabji Tata Trust (27.97%) and Sir Ratan Tata
Trust (23.56%). The next major chunk of 18% is controlled by
Shapoorji Pallonji Group, whose heir apparent is Cyrus Mistry. As
much as 12% is held by various Tata companies like Tata Motors,
Tata Chemicals and Tata Steel and about 3% is held by individuals.
If the trusts are in Ratan Tata's control, there is little
Shapoorji Pallonji group can do except bide their time.
TARO PHARMA: Class Suit Filed By Levi & Korsinsky Remains Pending
-----------------------------------------------------------------
The following statement is being issued by Levi & Korsinsky, LLP:
To: All persons or entities who purchased or otherwise acquired
securities of Taro Pharmaceutical Industries Ltd. between July 3,
2014 through September 9, 2016. You are hereby notified that a
securities class action lawsuit has been commenced in the USDC for
the Southern District of New York. To get more information go to:
http://www.zlk.com/pslra/taro-pharmaceutical-industries-ltd
or contact Joseph E. Levi, Esq. either via email at --
jlevi@zlk.com -- or by telephone at (212) 363-7500, toll-free:
(877) 363-5972. There is no cost or obligation to you.
The complaint alleges that during the Class Period, Taro
Pharmaceutical made false and/or misleading statements and/or
failed to disclose material information, including that since
2014, Taro Pharmaceutical has violated federal antitrust laws by
colluding with other pharmaceutical companies to keep the price of
generic products artificially high.
On September 9, 2016, Taro Pharmaceutical disclosed the receipt of
grand jury subpoenas in connection with a federal antitrust
investigation into generic drug pricing. Then on October 17, 2016,
an antitrust class action was filed against Taro Pharmaceutical
and several other companies alleging they have engaged in the
price-fixing of the generic drug Clobetasol since 2014.
If you suffered a loss in Taro Pharmaceutical you have until
December 27, 2016 to request that the Court appoint you as lead
plaintiff. Your ability to share in any recovery doesn't require
that you serve as a lead plaintiff.
Levi & Korsinsky is a national firm with offices in New York, New
Jersey, California, Connecticut, and Washington D.C. The firm's
attorneys have extensive expertise and experience representing
investors in securities litigation, and have recovered hundreds of
millions of dollars for aggrieved shareholders. Attorney
advertising. Prior results do not guarantee similar outcomes.
TELIGENT INC: Faces "Castillo" Suit Over Antifungal Cream
---------------------------------------------------------
Barbara Leonard, writing for Courthouse News Service, reported
that businesses that buy the antifungal prescription cream
econazole directly from generic drugmakers brought a federal class
action in Carmen, N.J., accusing Teligent, Perrigo and Taro
Pharmaceutical of hiking up the price of the medication 539
percent in late 2014, violating antitrust laws.
The case is captioned, CESAR CASTILLO, INC., individually and on
behalf of all those similarly situated, Plaintiff, v. TELIGENT,
INC., PERRIGO COMPANY PLC, TARO PHARMACEUTICAL INDUSTRIES LTD.,
and TARO PHARMACEUTICALS USA, INC., Defendants, Case 1:33-av-00001
(D.N.J., December 27, 2016).
Counsel for Plaintiff Cesar Castillo Inc. and the Proposed Direct
Purchaser Class:
Lisa J. Rodriguez, Esq.
SCHNADER HARRISON SEGAL & LEWIS LLP
Woodland Falls Corporate Park
220 Lake Drive East, Suite 200
Cherry Hill, NJ 08002-1165
Tel: (856) 482-522
E-mail: lrodriguez@schnader.com
- and -
Linda P. Nussbaum, Esq.
NUSSBAUM LAW GROUP, P.C.
1211 Avenue of the Americas, 40th Floor
New York, NY 10036-8718
Tel: (917) 438-9189
E-mail: lnussbaum@nussbaumpc.com
- and -
Juan R. Rivera Font, Esq.
JUAN R. RIVERA FONT LLC
Ave. Gonzalez Giusti #27, Suite 602
Guaynabo, PR 00968
Tel: (787) 751-5290
E-mail: juan@riverafont.com
TOP FLITE: Dismissal of Bridging Communities Suit Reversed
----------------------------------------------------------
The United States Court of Appeals, Sixth Circuit reversed the
district court's denial of class certification and dismissal of
the case captioned BRIDGING COMMUNITIES INC., a Michigan
corporation; GAMBLE PLUMBING & HEATING, INC., a Michigan
corporation, individually and as the representatives of a class of
similarly situated persons, Plaintiffs-Appellants, v. TOP FLITE
FINANCIAL INCORPORATED, Defendant-Appellee, No. 15-1572 (6th
Cir.).
The case is the latest in a string of "junk fax" cases under the
Telephone Consumer Protection Act (TCPA), that involves a fax-
broadcasting company named Business to Business Solutions (B2B).
The plaintiffs, Bridging Communities, Inc. and Gamble Plumbing &
Heating, Inc., alleged that the defendant, Top Flite Financial,
Inc., violated the TCPA when it hired B2B to send unsolicited fax
advertisements to the plaintiffs and a class of similarly situated
persons and businesses.
The district court denied the plaintiffs' motion for class
certification and dismissed their complaints as moot after the
plaintiffs chose not to accept offers of individual judgment.
The district court expressed concern that individual class members
might have solicited or consented to receiving the challenged
faxes, and held that determining if class members had so consented
"would require investigation of the factual circumstances of each
person or business that received a facsimile transmission[.]" The
court explained that it was "not persuaded" that the issue of
consent was "subject to generalized proof," and, consequently,
would "exercise its discretion to deny [the] request for class
certification" on the ground that the plaintiffs had not shown
that common questions of law or fact predominate over questions
concerning individual class members.
On appeal, Bridging Communities and Gamble argued that the
district court abused its discretion when it allowed the
unsubstantiated possibility of individualized consent to defeat
predominance. They further maintained that Top Flite's defense of
consent is subject to class-wide proof.
The Sixth Circuit found that Bridging Communities and Gamble
presented evidence suggesting a class-wide absence of consent --
evidence that B2B failed to contact anyone on the list it
purchased from InfoUSA to verify consent prior to faxing them
advertisements. On the other hand, Top Flite merely alleged that
class members might have given consent in some other way.
The Sixth Circuit held that the mere mention of a defense is not
enough to defeat the predominance requirement of Rule 23(b)(3) and
that speculation alone regarding individualized consent was
insufficient to defeat the plaintiffs' showing of predominance
under Rule 23(b)(3). The Sixth Circuit thus found that the
district court abused its discretion in holding otherwise.
The Sixth Circuit also stated that Supreme Court precedent
requires it to reverse the district court's 12(b)(1) dismissal of
the complaints as moot based on Bridging Communities's and
Gamble's refusal to accept Top Flite's offers of individual
judgment. The Sixth Circuit explained that "[u]nder basic
principles of contract law, . . . [a] Rule 68 offer of judgment,
once rejected, ha[s] no continuing efficacy[,]" and Top Flite may
not rely on such lapsed offers "to avoid a potential adverse
decision, one that could expose it to damages a thousand-fold
larger than" the offers Bridging Communities and Gamble declined
to accept here.
A full-text copy of the Sixth Circuit's December 15, 2016 opinion
is available at https://is.gd/G4Esyb from Leagle.com.
ARGUED: David M. Oppenheim -- david@classlawyers.com -- BOCK,
HATCH, LEWIS & OPPENHEIM, LLC, Chicago, Illinois, for Appellants.
C. Thomas Ludden, LIPSON NEILSON COLE SELTZER & GARIN, P.C.,
Bloomfield Hills, Michigan, for Appellee.
ON BRIEF: Phillip A. Bock -- phil@classlawyers.com -- BOCK & HATCH
LLC, Chicago, Illinois, for Appellants.
Karen A. Smyth -- ksmyth@lipsonneilson.com -- Shawn Grinnen --
sgrinnen@lipsonneilson.com -- LIPSON NEILSON COLE SELTZER & GARIN,
P.C., Bloomfield Hills, Michigan, for Appellee.
TRUECAR INC: NY Lanham Act Litigation in Discovery
--------------------------------------------------
Truecar, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on November 9, 2016, for the
quarterly period ended September 30, 2016, that the NY Lanham Act
litigation is currently in the discovery phase.
On March 9, 2015, the Company was named as a defendant in a
lawsuit filed in the U.S. District Court in the Southern District
of New York (the "NY Lanham Act Litigation"). The complaint in the
NY Lanham Act Litigation, purportedly filed on behalf of numerous
automotive dealers who are not participating on the TrueCar
platform, alleges that the Company has violated the Lanham Act as
well as various state laws prohibiting unfair competition and
deceptive acts or practices related to the Company's advertising
and promotional activities. The complaint seeks injunctive relief
in addition to over $250 million in damages as a result of the
alleged diversion of customers from the plaintiffs' dealerships to
TrueCar Certified Dealers.
On April 7, 2015, the Company filed an answer to the complaint.
Thereafter, the plaintiffs amended their complaint, and on July
13, 2015, the Company filed a motion to dismiss the amended
complaint.
On January 6, 2016, the Court granted the Company's motion to
dismiss with respect to some, but not all, of the advertising and
promotional activities challenged in the amended complaint. The
litigation is currently in the discovery phase.
The Company believes that the portions of the amended complaint
that survived the Company's motion to dismiss are without merit,
and it intends to vigorously defend itself in this matter.
"We have not recorded an accrual related to this matter as of
September 30, 2016, as we do not believe a loss is probable or
reasonably estimable," the Company said.
TrueCar, Inc. is an Internet-based information, technology, and
communication services company.
TRUECAR INC: Jan. 26 Status Conference in "Rose" Action
-------------------------------------------------------
Truecar, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on November 9, 2016, for the
quarterly period ended September 30, 2016, that a further status
conference is set for January 26, 2017, in the Gordon Rose class
action.
On December 23, 2015, the Company was named as a defendant in a
putative class action lawsuit filed by Gordon Rose in the
California Superior Court for the County of Los Angeles (the
"California Consumer Class Action"). The complaint asserted claims
for unjust enrichment, violation of the California Consumer Legal
Remedies Act, and violation of the California Business and
Professions Code, based principally on factual allegations similar
to those asserted in the NY Lanham Act Litigation and the CNCDA
Litigation. The complaint sought an award of unspecified damages,
interest, disgorgement, injunctive relief, and attorneys' fees. In
the complaint, the plaintiff sought to represent a class of
California consumers defined as "[a]ll California consumers who
purchased an automobile by using TrueCar, Inc.'s price certificate
during the applicable statute of limitations."
On January 12, 2016, the Court entered an order staying all
proceedings in the case pending an initial status conference,
which was previously scheduled for April 13, 2016. On March 16,
2016, the case was reassigned to a different judge. As a result of
that reassignment, the initial status conference was rescheduled
for and held on May 26, 2016.
By stipulation, the stay of discovery has been continued until a
second status conference, which was scheduled for October 12,
2016.
On July 13, 2016, the plaintiff amended his complaint. The amended
complaint continues to assert claims for unjust enrichment,
violation of the California Consumer Legal Remedies Act, and
violation of the California Business and Professions Code. The
amended complaint retains the same proposed class definition as
the initial complaint. Like the initial complaint, the amended
complaint seeks an award of unspecified damages, interest,
disgorgement, injunctive relief, and attorneys' fees.
On September 12, 2016, the Company filed a demurrer to the amended
complaint. On October 12, 2016, the Court heard oral argument on
the demurrer. On October 13, 2016, the Court granted in part and
denied in part the Company's demurrer to the amended complaint,
dismissing the unjust enrichment claim but declining to dismiss
the balance of the claims at the demurrer stage of the litigation.
On October 17, 2016, the Court entered an order scheduling a
further status conference for January 26, 2017.
The Company believes that the amended complaint is without merit,
and it intends to vigorously defend itself in this matter. The
Company has not recorded an accrual related to this matter as of
September 30, 2016, as the Company does not believe a loss is
probable or reasonably estimable.
TrueCar, Inc. is an Internet-based information, technology, and
communication services company.
TRUMP UNIVERSITY: Final Settlement Approval Hearing on March 30
---------------------------------------------------------------
Bianca Bruno, writing for Courthouse News Service, reported that
after just 18 months in the business, a four-person San Diego law
firm took on Goliath: business mogul -- now President-elect --
Donald Trump.
Over the course of the next seven years, the attorneys at Zeldes
Haeggquist & Eck would litigate two federal class actions on
behalf of 7,000 former Trump University students burdened with
debt after paying thousands for the real estate school and in the
end not getting what they paid for.
The two San Diego cases -- along with a third filed in New York by
its Attorney General Eric Schneiderman -- ended in a $25 million
global class action settlement announced Nov. 18, just 10 days
before the first Trump University case was scheduled to go to
trial. A pot of $21 million will go to the two California classes,
while $4 million went to settle the New York case.
In a surprising move, the class attorneys said after the
settlement hearing they chose to litigate the case for free, on a
pro bono basis. That decision was somewhat unprecedented.
Courthouse News interviewed the legal team at their downtown San
Diego office to find out what it was like to work on the highly
publicized cases.
Trump's Name Vital to School Success
In 2010, Zeldes Haeggquist & Eck attorney Aaron Olsen took a call
from a woman who'd eventually be a class action representative in
one of the most talked about court cases of 2016 -- Low v. Trump
University.
Tarla Makaeff told Olsen she'd been ripped off after investing in
the Trump University "elite" package and one-year mentorship
program which was supposed to include hands-on guidance from a
real estate expert purportedly handpicked by Trump. But she said
she never got the real estate guidance she paid $35,000 for.
Makaeff had been trying to get her money back for about five
months, firm partner Amber Eck said, first by requesting a refund
from Trump University and then going to the Better Business Bureau
and other agencies when she didn't get her money back. Eventually,
the Orange County woman got in touch with the small San Diego law
firm, whose attorneys began investigating the school.
Partner Helen Zeldes attended a Trump University presentation in
San Marcos to find out about the real estate school. She said she
was troubled by the promises Trump University was making.
"I was very concerned about the pitch that was given to people,
really preying on their vulnerabilities at the time," Zeldes said.
"The market had crashed; everybody had lost equity in their homes.
They asked people, 'How many of you have lost the equity in your
home that you wanted to leave for your children; how many of you
wanted to leave your home as a legacy for your children; how many
of you want to make that money back?' They were really trying to
convince people this was the way out of that dire situation that
so many Americans found themselves in."
The first class action was filed April 30, 2010. A second class
action, Cohen v. Trump, was filed in 2013. Both cases hinged on
essentially the same fraud claims, with students claiming they
invested up to $35,000 to learn from real estate experts
purportedly handpicked by Trump himself. The students said the
education they received was equivalent to that of an infomercial.
Zeldes, a self-described fan of Trump's TV show "The Apprentice,"
said Trump University students spent thousands to learn Trump's
real estate secrets when they could have spent that on tuition at
real, accredited universities.
Instead, Eck said, students "bought in" to Trump's sales pitch
largely because they "respected him and looked at him as one of
the most successful real estate investors."
That Trump's name was attached to his real estate school is what
made the operation so lucrative for him and expensive for
students, Eck said, with much of its success hinging on its
namesake.
Eck said at least 50 declarations she took from some of the class
members highlighted how important Trump was to Trump University
students and that they wouldn't have paid for the school if his
name wasn't attached.
"That's really what separated this from all other real estate
seminars," Eck said, noting Trump University was also priced much
higher than similar programs.
"At the end of the day, a lot of students said what they got out
of it wasn't any more than they could have gotten from checking
out a book from the library or joining a free real estate
investing club."
Olsen and Eck began gathering stories from about 400 Trump
University students. The attorneys found Makaeff's experience was
not isolated and the commonalities in the experiences of other
students they talked to is what made the case worth taking on.
Unprecedented in Some Ways, Run-of-the-mill in Others
While the case was filed years ago, it did not truly enter the
public consciousness until Sen. Marco Rubio, R-Florida, publicly
challenged the success of Trump's real estate school during a
televised Republican debate early this year. Other presidential
candidates, including Sen. Ted Cruz, R-Texas, jumped on board,
questioning the legitimacy of Trump's real estate school. And
Trump himself called attention to the case during a campaign stump
in San Diego in May, where he went on a lengthy tangent about the
case and famously called U.S. District Judge Gonzalo Curiel a
"hater of Donald Trump" and questioned the judge's ability to
fairly preside over the class actions.
Trump University and the San Diego federal court where the two
cases were being litigated were thrust into the media spotlight,
with media outlets even getting involved in the case.
This past summer, The Washington Post, The New York Times and
other national outlets requested Curiel make Trump's videotaped
depositions publicly available in the interest of public
transparency and accountability. The outlets argued the electorate
should get to see the temperament of someone who could become the
next President when answering questions related to his business.
The judge eventually sided with Trump and kept the tapes sealed,
saying he did not want the jury pool to be prejudiced.
The plaintiffs in the case did not oppose releasing Trump's
deposition tapes so it was really a fight between Trump and the
media, Eck said.
The firm's third partner, Alreen Haeggquist, said they'd never
been in a case like Trump University, which got national media
attention.
"We weren't throwing the case in the media, it was him [Trump] and
his actions that were throwing the case in the media," Haeggquist
said.
"Did it affect us, what we were doing? No. But I do think the
media was trying to hopefully help the public get a full picture
of what was going on."
As the Low case neared trial, Trump attorney Daniel Petrocelli and
the rest of the president-elect's legal team did everything
possible to get the trial postponed. Curiel denied moving the
trial to accommodate Petrocelli's schedule conflict, which the
well-known attorney did not alert the judge to until two months
before the trial was supposed to start.
In another attempt to postpone the trial, Petrocelli filed
requests for documents and information related to the 100-person
jury pool the court selected for the Low trial. Those documents
suggested the president-elect believed that the selection process
could have been unfair or prejudicial to his case.
But Curiel never got to rule on that motion, as the settlement was
announced the day the attorneys for both sides were to argue about
it.
Haegguist said moving dates is not unusual, even when it's a
tactic to postpone a trial.
"It happens all the time," Haeggquist said. "I don't think what
Judge Curiel did was improper or too accommodating in any way. But
they definitely tried different ways to get the case put off."
As to why both sides were able to reach a settlement on the eve of
trial when they met previously for settlement talks multiple times
over the nearly seven-year-long case, Zeldes said the pressure to
settle was there whether Trump was a presidential candidate or
President-elect.
"The pressure to settle would be there before the election or
after the election," Zeldes said.
"Whether he was the candidate for office or the president-elect,
those both are tremendous pressure points. Would he have settled
before the election versus after? I think the pressure is there
either way. But of course, he said he wouldn't settle the case."
Eck said the attorneys were concerned "there would never be a good
time" for President-elect Trump to go to trial. While Curiel told
Petrocelli during a pretrial hearing he would "at a minimum"
accommodate the president-elect's new schedule by not requiring
him to come to San Diego to testify in person, Trump's attorney
said his client wanted to be able to appear in person to defend
himself. Two days after Trump was elected president, Petrocelli
filed a motion to postpone the trial until after the Jan. 20
inauguration.
At the end of the day, Zeldes said, they stood behind their claims
"100 percent" but settled in light of the risks of taking the case
to trial.
In federal court, a unanimous jury verdict in the plaintiffs'
favor is required for recovery. And because Curiel decertified the
damages phase of what would have been a two-part trial, there
could have been 7,000 "mini trials" to determine what each
individual Trump University plaintiff could recover.
"Why now?" Eck asked. "Trial was set 10 days out and Donald Trump
appeared to be motivated to settle and willing to put out some
money. That's generally enough to get a settlement done. It could
have been settled other times, but this was definitely an
opportune time to settle."
When asked to estimate how much it cost their firm in attorney's
fees and costs to litigate the case for free, Eck laughed. "We'd
rather not know," she said.
Haeggquist said the figure was in the millions but the firm had
not done the exact math.
"It really is a great result for these class members, many who
took out credit lines on their houses and maxed out their credit
cards," Eck said of the class members who will recover at least 55
percent, if not more, of what they paid for Trump University.
"They're going to be able to pay back this money. Many of the
people who took this course believed they would improve their
financial situation, and in fact their financial situation became
worse."
The plaintiffs were also represented by Jason Forge, Rachel Jensen
and Patrick Coughlin with Robbins Geller Rudman & Dowd in San
Diego, who did not return email requests for comment. Trump was
represented by Daniel Petrocelli with O'Melveny & Myers in Los
Angeles. He also did not return an email request for comment.
A final settlement approval hearing is scheduled for March 30,
2017.
TWITTER INC: Faces Class Action Over Sale of Profile Information
----------------------------------------------------------------
Tim Cushing, writing for Techdirt, reports that a potential class
action lawsuit against Twitter and the creators of a short-lived
app that allowed users to "buy" and "sell" celebrities' Twitter
accounts has raised some questions about a federal judge's grasp
on social media reality and the First Amendment.
The background: Jason Parker -- fronting an Alabama-based class
action suit -- sued Twitter and Hey, Inc. back in August, claiming
Hey's "Famous" app violated the state's right of publicity law.
(We won't get into how ridiculous many "right of publicity" laws
are as this lawsuit may not even survive a motion to dismiss even
after it's amended.) The app, called "Famous: The Celebrity
Twitter" allowed users to collect, buy, and trade Twitter profiles
of famous people using virtual currency.
For some reason, this made a bunch of people angry. The app's
gameplay -- buying and selling people -- was somewhat unsavory,
but it was all based on publicly-available Twitter profile
information. Twitter allowed the app to pull this data for use in
the game. The game underwent some changes after Congresswoman
Katherine Clark sent a letter to Twitter telling it to remove all
"unconsenting" profiles, whatever that meant.
Hey, Inc. pulled the app and retooled it, releasing it a month
later as simply "Famous." Gone was the virtual currency (almost)
and the buying and selling of Twitter profiles. Instead, players
"invested" in celebrity Twitter accounts with "hearts," which
could be purchased with real money.
The class action suit persisted as Mr. Parker's right of publicity
claims wasn't based on whether Twitter profiles were
bought/sold/stolen, but rather that Twitter didn't have the right
to make this information available to the app creators. Despite
voluntarily using a service and providing Twitter with profile
information, Parker (and users similarly situated) somehow believe
they should be able to control how their Twitter profile
information is used.
Supposedly, Hey, Inc. -- with Twitter's "collusion" -- is
"exploiting" thousands of profiles for profit without their
"consent." This must be Parker's first experience with a social
media platform if he thinks Twitter is the only one "exploiting"
users and their data for profit. Sure, it looks a bit more
unseemly when an app allows users to buy and sell other people's
profiles for in-game currency/hearts, but all of this voluntarily-
provided data can be accessed by anyone, with or without Twitter's
strict approval. (Use of Twitter's API is subject to some
restrictions, but public profile information can be seen by
anyone, even without a Twitter account.)
Twitter has been in court arguing that Mr. Parker's claims -- if
upheld -- will violate it and its users' First Amendment right, as
reported by Helen Christophi of Courthouse News.
At oral argument on Dec. 8, [Judge William] Alsup assailed
Twitter's argument that Parker's right-of-publicity claim violates
the First Amendment by seeking to curb users' activities with each
other's profiles.
"I don't see how you can even make that argument with a straight
face," Judge Alsup told Twitter attorney Matthew Brown.
Mr. Brown replied: "Twitter has the First Amendment right to
disseminate the information."
This is a legitimate argument. Dissemination of information is
protected speech. Judge William Alsup -- who has done good IP
work elsewhere -- somehow managed to make the following retort
without realizing how completely off-base his comparison is.
Judge Alsup took issue with that, likening it to criminals
stealing and sharing Social Security numbers.
"I can't believe the First Amendment allows that kind of criminal
conduct," Judge Alsup said. "You're telling me that's protected
by the First Amendment? No way. You're disclosing their
personas."
Information voluntarily provided to Twitter for profiles is in NO
WAY comparable to other personally-identifiable information that
is traditionally safeguarded by users and platforms alike. The
app's use of Twitter's API only pulls publicly-available profile
information that has been provided by users. Anyone whose Twitter
account is public is "disclosing their persona." No one's doing
that with their Social Security numbers. (If they are, good lord
please get off the internet.) Twitter isn't digging up information
not voluntarily provided by users and adding that to the pool of
data by Hey Inc.'s game. Jason Parker's "right of publicity"
isn't being violated and the use of publicly-available data is
decidedly not a criminal act.
Mr. Parker's lawyer didn't do any better than Judge Alsup with his
assertions.
Mr. Parker's attorney Tievsky said the Constitution does not
protect Twitter in this case.
"The point here is, in the use of my client's name and likeness,
there is no creative expression, there is a mere taking of
information and putting it in another place and another context,
and that's what becomes problematic," Mr. Tievsky said. "We're
not talking about the kind of expressive work we recognize for
First Amendment protection."
The First Amendment doesn't just protect for expressive works. As
was stated earlier, the publication of information/data is
protected by the First Amendment. If it wasn't, every person with
a beef about their failed lawsuits and/or criminal convictions
would be able to scrub the web of public documents containing
these details (along with any reporting using these documents as
source material) because this publication would no longer be
protected speech.
Just because Mr. Parker and Judge Alsup don't like the app's
gameplay doesn't mean Hey, Inc. or Twitter are committing some
form of new digital crime and/or working outside of the confines
of protected speech.
Hopefully, these arguments won't become worse as the case moves
forward. Judge Alsup has given Parker permission to amend his
filing and claims he needs an "expert on consent" to help sort
things out. Mr. Parker claims he never consented to Twitter
allowing third parties to use his voluntarily-provided profile
data, but that's a claim that's going to be extremely difficult to
assert successfully. The information was already out there for
any third party to access. Twitter just made it simpler.
UNITED STATES: Suit Aims to Prevent IRS Tracking of Bitcoin Users
-----------------------------------------------------------------
Olusegun Ogundeji, writing for Coin Telegraph, reports that a
motion has been filed to block the Internal Revenue Service's move
to access the personal and Bitcoin transactional information of
over a mln U.S. based Coinbase customers between 2013 and 2015.
Filed on behalf of Los Angeles attorney Jeffrey K. Berns, the
Managing Partner of Berns Weiss LLP, who used Coinbase to buy and
sell Bitcoins estimates that over a mln Americans are subject to
the John Doe summons issued on Nov. 30, the case was assigned to
Judge Jacqueline Scott Corley who granted the IRS summons.
The IRS is called to answer
The summons requires Coinbase, which is America's largest virtual
currency exchange, licensed in 34 states, by the District of
Columbia and Puerto Rico to:
"Complete the user profile, the history of changes to user
profiles from account inception, complete user preferences,
complete user security settings and history including confirmed
devices and account activity, complete user payment methods and
any other information related to the funding sources for the
account, wallet, or vault, regardless of date."
Mr. Berns thinks the summons lacks legitimacy. He notes in a
statement:
"There is no legitimate reason to seek these records. Individuals
with no taxable events shouldn't be subject to a complete
investigation because the IRS doesn't understand a developing
technology."
According to the filed motion stated to be heard on Jan. 19, 2017,
Mr. Berns' move to either squash the John Doe summons ordered to
be served upon Coinbase or, alternatively, for a protective order
concerning the IRS Summons to be made ". . . on the grounds that
the IRS has no legitimate purpose in seeking the requested
documents from Coinbase concerning its users, enforcement of the
IRS Summons would constitute an abuse of process as the IRS does
not currently have the ability to enforce compliance with its 2014
virtual currency guidance, and the categories of requested
documents are overbroad to the point that the IRS Summons would
require the disclosure of a substantial amount of information and
documents that are not relevant to the IRS's stated purpose in
issuing the IRS Summons."
One mln US citizens under threat
The motion seeking the alternative relief of an Order Scheduling
an Evidentiary Hearing and Permitting Limited Discovery is made on
the ground that Bern has alleged sufficient facts from which the
Court can readily question the IRS's good faith in issuing the IRS
Summons.
The motion argues that the summons was not sought by the IRS with
respect to any particular investigation and the revenue collector
has made no attempt to narrow the information covered by the
summons to reflect its stated goal of confirming compliance with
the tax laws.
"Instead, based on three isolated incidents and scant other facts,
the IRS seeks that Coinbase identifies over one mln American
citizens that have transacted in virtual currency and to provide
data on every single transaction by those one mln clients over a
three-year period.," the motion states. "The IRS Summons is
certainly not what the Supreme Court envisioned. Further, the
breadth of the summons, which seeks substantial personal
information that is not at all relevant to tax compliance issues,
and which could expose these clients to significant risk of having
their identity and funds stolen by hackers who have succeeded
previously in hacking the federal government, including the IRS
numerous times, makes it easy to conclude that the IRS is engaging
in abuse of process."
Hopefully, this lawsuit will stop the IRS from getting taxpayer
information for a tax grab from Coinbase which also operates in 32
countries and has expressed its commitment to customer privacy and
opposition to government efforts to obtain customer information.
UNITED STATES: Seeks 9th Cir. Review of Order in "Hernandez" Suit
-----------------------------------------------------------------
Defendants Jon Briggs, Christina Holland, Sandra Hutchens, James
Janecka, David Jennings, Jeh Johnson, Mike Kreuger, Attorney
General Loretta E. Lynch, Juan P. Osuna, Carlos Roja and Sarah
Saldan filed an appeal from a court ruling in the lawsuit titled
Xochitl Hernandez, et al. v. Loretta Lynch, et al., Case No. 5:16-
cv-00620-JGB-KK, in the U.S. District Court for the Central
District of California, Riverside.
The appellate case is captioned as Xochitl Hernandez, et al. v.
Loretta Lynch, et al., Case No. 16-56829, in the United States
Court of Appeals for the Ninth Circuit.
As previously reported in the Class Action Reporter, Judge Jesus
G. Bernal denied a motion to dismiss the Case filed the by
Defendants. Instead, Judge Bernal granted the motion for class
certification filed by Plaintiffs Xochitl Hernandez and Cesar
Matias.
The Plaintiffs have sought certification of a class of individuals
encompassing "[a]ll individuals who are or will be detained
pursuant to 8 U.S.C. Sec. 1226(a) on a bond set by an U.S.
Immigration and Customs Enforcement officer or an Immigration
Judge in the Central District of California."
The briefing schedule in the Appellate Case is set as follows:
-- Transcript must be ordered by January 11, 2017;
-- Transcript is due on April 11, 2017;
-- Opening brief of Appellants Jon Briggs, Christina Holland,
Sandra Hutchens, James Janecka, David Jennings, Jeh
Johnson, Mike Kreuger, Loretta E. Lynch, Attorney General,
Juan P. Osuna, Carlos Roja and Sarah Saldan is due on
May 22, 2017;
-- Appellees Xochitl Hernandez and Cesar Matias' answering
brief is due on June 21, 2017; and
-- Appellant's optional reply brief is due 14 days after
service of the answering brief.
Plaintiffs-Appellees XOCHITL HERNANDEZ, for themselves and on
behalf of a class of similarly-situated individuals, and CESAR
MATIAS, for themselves and on behalf of a class of similarly-
situated individuals, are represented by:
Ahilan Thevanesan Arulanantham, Esq.
Michael Kaufman, Esq.
ACLU FOUNDATION OF SOUTHERN CALIFORNIA
1313 West 8th Street
Los Angeles, CA 90017
Telephone: (213) 977-5232
Facsimile: (213) 977-5297
E-mail: aarulanantham@aclu-sc.org
mkaufman@aclu-sc.org
- and -
Stephen B. Kang, Esq.
ACLU FOUNDATION OF NORTHERN CALIFORNIA
39 Drumm Street
San Francisco, CA 94111
Telephone: (415) 343-0763
Facsimile: (415) 395-0950
E-mail: skang@aclu.org
- and -
Judy Rabinovitz, Esq.
Michael K.T. Tan, Esq.
ACLU IMMIGRANTS' RIGHTS PROJECT
125 Broad Street, 18th Floor
New York, NY 10004
Telephone: (212) 549-2618
Facsimile: (212) 549-2654
E-mail: jrabinovitz@aclu.org
mtan@aclu.org
- and -
Matthew E. Sloan, Esq.
Douglas Allen Smith, Esq.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
300 South Grand Avenue
Los Angeles, CA 90071
Telephone: (213) 687-5276
Facsimile: (213) 621-5276
E-mail: matthew.sloan@skadden.com
douglas.smith@skadden.com
Defendants-Appellants LORETTA E. LYNCH, Attorney General of the
United States; JUAN P. OSUNA, Director, Executive Office for
Immigration Review; JEH JOHNSON, Secretary, Department of Homeland
Security; SARAH SALDAN, Director, Immigration and Customs
enforcement (ICE); DAVID JENNINGS, Los Angeles Field Office
Director of ICE; JAMES JANECKA, Warden, Adelanto Detention
Facility; CHRISTINA HOLLAND, Jail Administrator, Santa Ana City
Jail; CARLOS ROJA, Chief, Santa Ana City Department; JON BRIGGS,
Captain, Orange County Sheriff's Department; MIKE KREUGER,
Captain, Orange County Sheriff's Department; and SANDRA HUTCHENS,
Sheriff, Orange County, are represented by:
Joseph D. Hardy, Jr., Esq.
DOJ - U.S. DEPARTMENT OF JUSTICE
P.O. Box 878, Benjamin Franklin Station
Washington, DC 20044
Telephone: (202) 514-2000
- and -
Sherease Rosalyn Pratt, Esq.
U.S. Department of Justice
450 5th St. NW
Washington, DC 20530
Telephone: (202) 307-0895
E-mail: sherease.pratt@usdoj.gov
UNITED STATES: Tenth Circuit Appeal Filed in "Donelson" Suit
------------------------------------------------------------
Plaintiffs Martha Donelson and John Friend filed an appeal from a
court ruling in the lawsuit entitled Donelson, et al. v. United
States, et al., Case No. 4:14-CV-00316-JHP-FHM, in the U.S.
District Court for the Northern District of Oklahoma - Tulsa.
As previously reported in the Class Action Reporter, the
Plaintiffs seek a declaratory judgment that the Bureau of Indian
Affairs improperly approved oil and gas leases, concession
agreements and drilling permits prior to August 12, 2014, without
satisfying the BIA's obligations under federal regulations or the
National Environmental Policy Act, and seek a determination that
such oil and gas leases, concession agreements and drilling
permits are void ab initio.
The appellate case is captioned as Donelson, et al. v. United
States, et al., Case No. 16-5174, in the United States Court of
Appeals for the Tenth Circuit.
Plaintiffs-Appellants MARTHA DONELSON, on behalf of herself and on
behalf of all similarly situated persons, and JOHN FRIEND are
represented by:
Gentner Frederick Drummond, Esq.
Garry Michael Gaskins, II, Esq.
Donald A. Lepp, Esq.
DRUMMOND LAW
1500 South Utica Avenue, Suite 400
Tulsa, OK 74104
Telephone: (918) 749-7378
E-mail: gfd@drumlaw.com
gmg@drumlaw.com
dal@drumlaw.com
Defendant-Appellee UNITED STATES OF AMERICA, Through the
Department of the Interior and its agency, the Bureau of Indian
Affairs, is represented by:
Cathryn Dawn McClanahan, Esq.
OFFICE OF THE UNITED STATES ATTORNEY
110 West 7th Street, Suite 300
Tulsa, OK 74119
Telephone: (918) 382-2700
Facsimile: (918) 560-7939
E-mail: cathy.mcclanahan@usdoj.gov
- and -
Jody H. Schwarz, Esq.
UNITED STATES DEPARTMENT OF JUSTICE
P.O. Box 663
Washington, DC 20044-0663
Telephone: (202) 616-3353
E-mail: jody.schwarz@usdoj.gov
Defendant-Appellee DEVON ENERGY PRODUCTION COMPANY, L.P., is
represented by:
Timothy J. Bomhoff, Esq.
MCAFEE & TAFT A PROFESSIONAL CORPORATION
211 North Robinson Avenue, 10th Floor
Oklahoma City, OK 73102
Telephone: (405) 235-9621
E-mail: tim.bomhoff@mcafeetaft.com
- and -
Mary Quinn Cooper, Esq.
Charles Greenough, Esq.
Jason A. McVicker, Esq.
MCAFEE & TAFT A PROFESSIONAL CORPORATION
2 West 2nd Street, Suite 1100
Tulsa, OK 74103
Telephone: (918) 587-0000
E-mail: maryquinn.cooper@mcafeetaft.com
charles.greenough@mcafeetaft.com
jason.mcvicker@mcafeetaft.com
- and -
Robert Charles Mathes, Esq.
DAVIS GRAHAM & STUBBS
1550 Seventeenth Street, Suite 500
Denver, CO 80202
Telephone: (303) 892-9400
E-mail: robert.mathes@dgslaw.com
Defendant-Appellee CHAPARRAL ENERGY, LLC, is represented by:
Christopher Anthony Chrisman, Esq.
Anthony Joseph Shaheen, Esq.
HOLLAND & HART LLP
555 17th Street, Suite 3200
Denver, CO 80202
Telephone: (303) 295-8000
E-mail: cachrisman@hollandhart.com
ajshaheen@hollandhart.com
- and -
Nicholas Vernon Merkley, Esq.
GABLEGOTWALS
211 North Robinson Avenue, Suite 1500
Oklahoma City, OK 73102
Telephone: (405) 235-5500
Facsimile: (405) 232-9659
E-mail: nmerkley@fellerssnider.com
Defendants-Appellees SPYGLASS ENERGY GROUP, LLC, BGI RESOURCES,
LLC, SULLIVAN & COMPANY, LLC, and ORION EXPLORATION, LLC, are
represented by:
Brian Timothy Inbody, Esq.
MCNAMARA INBODY & PARRISH PLLC
1437 South Boulder Avenue Suite 1210
Tulsa, OK 74119-3609
Telephone: (918) 599-0300
Facsimile: (918) 599-0310
E-mail: binbody@mcnamlaw.com
Defendant-Appellee ENCANA OIL & GAS (USA), INC., is represented
by:
Gerald Lynn Hilsher, Esq.
Robert Joseph Joyce, Esq.
MCAFEE & TAFT
2 West 2nd Street, Suite 1100
Tulsa, OK 74103
Telephone: (918) 587-0000
Facsimile: (918) 599-9317
E-mail: gerald.hilsher@mcafeetaft.com
robert.joyce@mcafeetaft.com
Defendants-Appellees PERFORMANCE ENERGY RESOURCES, LLC, SHORT OIL,
LLC, RAM ENERGY RESOURCES, INC., OSAGE ENERGY RESOURCES, LLC, and
HELMER OIL CORP, and all other lessees and operators and operators
who have obtained a concession agreement, lease or drilling permit
approved by the BIA in Osage County in violation of NEPA
previously named as Helmer Oil Corp., are represented by:
Jess Morgan Kane, Esq.
Bruce Wayne Robinett, Esq.
Rick D. Tucker, Esq.
BREWER, WORTEN, ROBINETT
P. O. Box 1066
Bartlesville, OK 74006
Telephone: (918) 336-4132
Facsimile: (918) 336-9009
E-mail: jkane@bwrlawoffice.com
bwrobinett@bwrlawoffice.com
Defendant-Appellee CEJA CORPORATION is represented by:
Robert Mitchener, III, Esq.
Randall G. Vaughn, Esq.
PRAY WALKER, PC
100 West 5th Street, Suite 900
Tulsa, OK 74103-4292
Telephone: (918) 581-5500
E-mail: rmitchener@praywalker.com
rvaughan@praywalker.com
Defendants-Appellees CEP MIDCONTINENT, LLC, and HALCON RESOURCES
CORPORATION are represented by:
Pamela S. Anderson, Esq.
J. Kevin Hayes, Esq.
HALL ESTILL
320 South Boston Avenue, Suite 200
Tulsa, OK 74103-3706
Telephone: (918) 594-0400
Facsimile: (918) 594-0505
E-mail: panderson@hallestill.com
khayes@hallestill.com
Defendant-Appellee LINN ENERGY HOLDINGS, LLC, is represented by:
Charles Greenough, Esq.
Jason A. McVicker, Esq.
MCAFEE & TAFT A PROFESSIONAL CORPORATION
2 West 2nd Street, Suite 1100
Tulsa, OK 74103
Telephone: (918) 587-0000
E-mail: charles.greenough@mcafeetaft.com
jason.mcvicker@mcafeetaft.com
Defendant-Appellee REVARD OIL & GAS PROPERTIES, INC., is
represented by:
Jack H. Santee, Esq.
Scott VanBrunt Morgan, Esq.
MOYERS, MARTIN, SANTEE & IMEL LLP
401 South Boston Avenue, Suite 1100
Tulsa, OK 74103
Telephone: (918) 582-5281
Facsimile: (918) 585-8318
E-mail: santee@moyersmartin.com
svmorgan@moyersmartin.com
Defendant-Appellee BLACK LAVA RESOURCES, LLC, is represented by:
Thomas M. Ladner, Esq.
LADNER & ELDREDGE PLLC
320 South Boston Avenue, Suite 1026
Tulsa, OK 74008
Telephone: (918) 582-3032
Facsimile: (918) 582-3075
E-mail: tladner@lelegal.com
Defendants-Appellees B & G OIL COMPANY and WELLCO ENERGY, INC.,
are represented by:
Guy Palmer Clark, Esq.
NORTHCUTT, CLARK, GARDNER, HRON & BRUNE
P.O. Box 1669
Ponca City, OK 74602-1669
Telephone: (405) 762-1655
Facsimile: (580) 765-4142
E-mail: gclark@northcuttlawfirm.com
Defendants-Appellees NADEL AND GUSSMAN, LLC, and KAISER-FRANCIS
ANADARKO, LLC, are represented by:
Paul DeMuro, Esq.
Frederic Dorwart, Esq.
Jean Michael Medina, Esq.
Miriam Leeann Sweetin, Esq.
FREDERIC DORWART, LAWYERS
124 East Fourth Street, Suite 100
Tulsa, OK 74103
Telephone: (918) 583-9922
E-mail: pdemuro@fdlaw.com
fdorwart@fdlaw.com
mmedina@fdlaw.com
msweetin@fdlaw.com
Defendants-Appellees THE LINK OIL COMPANY and TOOMEY OIL COMPANY,
INC., are represented by:
Terence P. Brennan, Esq.
Trevor R. Henson, Esq.
Lee I. Levinson, Esq.
Evan Mcguire McLemore, Esq.
LEVINSON, SMITH & HUFFMAN PC
1743 East 71st Street
Tulsa, OK 74136
Telephone: (918) 492-4433
E-mail: terry.brennan@lsh-law-firm.com
trevor.henson@lsh-law-firm.com
lee.levinson@lsh-law-firm.com
evan.mclemore@lsh-law-firm.com
Defendant-Appellee CARDINAL RIVER ENERGY I LP, previously named as
Cardinal River Energy, LP, is represented by:
James M. Chaney, Esq.
KIRK & CHANEY PLLC
101 Park Avenue, Suite 800
Oklahoma City, OK 73102-0000
Telephone: (405) 235-1333
Facsimile: (405) 235-5914
E-mail: chaney@kirkandchaney.com
Defendant-Appellee LAMAMCO DRILLING, INC., previously named as
Lamamco Drilling, LLC and Lammamco Drilling, LLC, is represented
by:
Charles Michael Copeland, Esq.
JONES, GOTCHER & BOGAN
15 East 5th Street, Suite 3800
Tulsa, OK 74103
Telephone: (918) 582-8200
Facsimile: (918) 583-1189
E-mail: mcopeland@jonesgotcher.com
UNIVERSAL HEALTH: Faces Shareholder Class Action in Calif.
----------------------------------------------------------
Robert Khan, writing for Courthouse News Service, reported that
Universal Health Services boosted its share price through false
and misleading statements and it fell from $126.37 to $111.36 in a
single day when truth emerged, shareholders claim in Los Angeles
Federal Court.
The case is captioned, DAVID HEED, Individually and on Behalf of
All Others Similarly Situated, Plaintiff, v. UNIVERSAL HEALTH
SERVICES, INC., ALAN B. MILLER, and STEVE FILTON, Defendants.,
Case 2:16-cv-09499 (C.D. Cal.).
Counsel for Plaintiff:
Laurence M. Rosen, Esq.
THE ROSEN LAW FIRM, P.A.
355 South Grand Avenue, Suite 2450
Los Angeles, CA 90071
Telephone: (213) 785-2610
Facsimile: (213) 226-4684
Email: lrosen@rosenlegal.com
VALERO: 10th Circuit Hears Argument in "Hot Fuel" Settlements
-------------------------------------------------------------
Adam Schulman, writing for Competitive Enterprise Institute,
reports that last month, the Tenth Circuit heard argument in CEI's
appeal of the "Hot Fuel" settlements. This is the case where the
plaintiffs sued most major gasoline retailers and refiners in the
country over the alleged "fraud" of selling gasoline on a
volumetric basis (i.e., by the gallon) without disclosing the laws
of thermodynamics. The cases settled in various ways. Some
defendants agreed to convert their pumps from volumetric
distribution to automatic temperature compensated (ATC)
distribution (i.e., the Canadian way). Some defendants agreed to
reimburse franchisees that convert their retail pumps to ATC.
Some defendants agreed to pay into a slush fund that will be used
to lobby state regulators in favor of ATC.
The panel of Judges Lucero, Moritz, and Phillips was active,
inquisitive, and appeared justifiably skeptical that the
proclaimed "informational benefits" of ATC conversion are actual
benefits. Judge Phillips in particular referred to the case as
having nothing more than nuisance value, as it depends on being
ignorant of basic propositions of physics that are covered in
sixth grade science. A harsh, yet warranted, critique. But it's
too soon to say whether everyone lined up at a Valero in January
2018 for some gas on a frigid morning will really be getting
slightly less than the 12 gallons of gas they think they are
getting.
VIACOM INC: Seeks Dismissal of Class Actions
--------------------------------------------
Viacom, Inc. said in its Form 10-K Report filed with the
Securities and Exchange Commission on November 9, 2016, for the
fiscal year ended September 30, 2016, that the Company moved to
dismiss purported class actions.
Between June 17, 2016 and August 1, 2016, three substantially
similar purported class action complaints were filed in the
Delaware Chancery Court by purported Viacom stockholders, against
Viacom, Viacom's directors and NAI and were subsequently
consolidated into one action. The action -- brought on behalf of
the class of all holders of Viacom Class B common stock except the
named defendants and any person or entity affiliated with any of
the defendants -- alleges claims for breaches of fiduciary duty
against the incumbent director defendants and NAI, and alleges
that Viacom's new directors aided and abetted these breaches. In
addition to damages and attorneys' fees, the action seeks such
relief as the Court deems just and proper. All defendants,
including Viacom and certain of its directors, have moved to
dismiss the action.
Viacom is a home to premier global media brands that create
compelling television programs, motion pictures, short-form
content, applications ("apps"), games, consumer products, social
media experiences and other entertainment content for audiences in
more than 180 countries.
VIRGIN AMERICA: Investors Drop Merger Class Suit
------------------------------------------------
Courthouse News Service reported that following the Justice
Department's approval of the $4 billion merger of airlines Alaska
and Virgin America, investors who sued to stop the merger have
voluntarily dismissed their lawsuit in favor of a confidential
settlement agreement.
WASHINGTON UNIVERSITY: Daleiden Appeals Ruling in Jane Doe Suit
---------------------------------------------------------------
Defendant David Daleiden filed an appeal from a court ruling in
the lawsuit styled Jane Does 1-10, et al. v. David Daleiden, et
al., Case No. 2:16-cv-01212-JLR, in the U.S. District Court for
the Western District of Washington, Seattle.
As previously reported in the Class Action Reporter, eight
employees of the University of Washington, Planned Parenthood and
three hospitals sued the university in August, objecting to the
disclosure of their identities in a public records request from
anti-abortion activist David Daleiden.
The appellate case is captioned as Jane Does 1-10, et al. v. David
Daleiden, et al., Case No. 16-36038, in the United States Court of
Appeals for the Ninth Circuit.
Plaintiffs-Appellees JANE DOES 1-10, individually and on behalf of
others similarly situated, and JOHN DOES 1-10, individually and on
behalf of others similarly situated, are represented by:
Jill D. Bowman, Esq.
Vanessa Soriano Power, Esq.
Jared R. Wigginton, Esq.
STOEL RIVES LLP
600 University Street
Seattle, WA 98101
Telephone: (206) 624-0900
Facsimile: (206) 386-7500
E-mail: jill.bowman@stoel.com
vanessa.power@stoel.com
jared.wigginton@stoel.com
- and -
Janet Chung, Esq.
LEGAL VOICE
907 Pine Street
Seattle, WA 98101-1818
Telephone: (206) 682-9552
Facsimile: (206) 682-9556
E-mail: jchung@legalvoice.org
- and -
David Benjamin Edwards, Esq.
Steven Walter Fogg, Esq.
CORR CRONIN MICHELSON BAUMGARDNER & PREECE LLP
1001 Fourth Avenue
Seattle, WA 98154
Telephone: (206) 625-8600
E-mail: dedwards@corrcronin.com
sfogg@corrcronin.com
Defendant-Appellant DAVID DALEIDEN, an individual, is represented
by:
Peter Breen, Esq.
Thomas Brejcha, Esq.
THOMAS MORE SOCIETY
19 S. LaSalle Street
Chicago, IL 60603
Telephone: (312) 782-1680
E-mail: pbreen@thomasmoresociety.org
tbrejcha@thomasmoresociety.org
- and -
Theresa Ann Schrempp, Esq.
SONKIN & SCHREMPP, PLLC
2955 80th Ave. SE
Mercer Island, WA 98040
Telephone: (206) 275-2882
E-mail: theresas@lawyerseattle.com
- and -
Jeffrey M. Trissell, Esq.
FREEDOM OF CONSCIENCE DEFENSE FUND
P.O. Box 9520
Rancho Santa Fe, CA 92067
Telephone: (858) 759-9948
E-mail: jtrissell@limandri.com
Defendant ZACHARY FREEMAN is represented by:
William John Crittenden, Esq.
GROFF MURPHY, PLLC
12345 Lake City Way NE 306
Seattle, WA 98125
Telephone: (206) 361-5972
E-mail: wjcrittenden@groffmurphy.com
Defendants UNIVERSITY OF WASHINGTON and PERRY TAPPER, Public
Records Compliance Officer at the University of Washington, in his
official capacity, are represented by:
Karin L. Nyrop, Esq.
WASHINGTON ATTORNEY GENERAL'S OFFICE
UW Box 359475
4333 Brooklyn Ave. NE
Seattle, WA 98195-9475
E-mail: knyrop@u.washington.edu
WELLS FARGO: Deploys Defense Attorneys for Fake Accounts Cases
--------------------------------------------------------------
Ross Todd and Ben Hancock, writing for The Am Law Daily, report
that as law enforcement agencies and private plaintiffs attorneys
circle Wells Fargo & Co. in the wake of its sham accounts scandal,
the bank and its executives have deployed a legion of defense
attorneys to limit the legal fallout.
Last month, the company announced in securities filings that it
had set aside at least $1.7 billion to fend off the wave of
litigation. Judging from the roster of counsel it has tapped so
far, it's already eating into that war chest. The bank and its
executives have called on at least a dozen corporate Wall Street
firms and premier white-collar boutiques, including Shearman &
Sterling; Munger, Tolles & Olson; Williams & Connolly; Orrick,
Herrington & Sutcliffe and Goodwin Procter.
Wells Fargo has brought on a Sidley Austin team led by
San Francisco partner David Anderson --
dlanderson@sidley.com -- to handle the investigation by the U.S.
Department of Justice. Mr. Anderson, who served as the No. 2
prosecutor in the San Francisco U.S. attorney's office during the
George W. Bush administration, has the thorny task of navigating
the federal investigation, with Wells Fargo already facing a $100
million fine from the Consumer Financial Protection Bureau for the
widespread practice at the bank of opening unauthorized accounts
and credit cards to meet sales quotas.
Wells Fargo executives are also lawyering up. Carrie Tolstedt,
who oversaw the unit at the center of the scandal, has made
perhaps the most prominent hire, leaning on a team at Washington-
based Williams & Connolly that includes senior partner Brendan
Sullivan Jr. -- bsullivan@wc.com -- of Sullivan, widely regarded
as one of the deans of the white-collar defense bar, represented
Oliver North during the congressional hearings into the Iran-
Contra affair and former Sen. Ted Stevens during his political
corruption trial.
Former Wells Fargo CEO John Stumpf, who drew fire before a Senate
hearing on the accounts scandal this fall prior to stepping down,
is being represented in the DOJ probe by a team from Goodwin
Procter that includes Silicon Valley partner Grant Fondo, a former
federal prosecutor in the Northern District of California.
Current CEO Timothy Sloan is represented by San Francisco white-
collar boutique Clarence Dyer & Cohen. A team from Orrick,
Herrington & Sutcliffe, including San Francisco partner Walter
Brown -- wbrown@orrick.com -- is representing the company's
general counsel, James Strother, who recently announced that he
would postpone his retirement, planned for the end of the year.
Other firms representing individual executives include Keker & Van
Nest, Ramsey & Ehrlich, Swanson & McNamara, and Arguedas, Cassman
& Headley.
Meanwhile, the government has also called on a wide network of
attorneys to investigate whether the bank or its executives have
criminal liability for the opening of fake accounts. The federal
prosecutors working on the investigation include assistant U.S.
attorneys Adam Reeves and Benjamin Kingsley from the U.S.
attorney's office in San Francisco, Kelli Ferry and Daniel Ryan
from the office in Charlotte, North Carolina, and lawyers from the
Civil Division at Main Justice in Washington.
Of the San Francisco group, Mr. Reeves led a team that won a jury
conviction in a criminal fraud trial against a former executive at
United Commercial Bank last year. Mr. Ryan helped extract a
$16.65 billion settlement from Bank of America related to its
mortgage-backed securities practices. In addition to the DOJ, the
company also faces probes from the Securities and Exchange
Commission and state attorneys general, it has said.
The bank also faces a wave of class action investor lawsuits. In
state court in San Francisco, where Wells Fargo is headquartered,
a judge in November coordinated a half-dozen derivative suits
filed against its current and former executives. Brendan Cullen -
- cullenb@sullcrom.com -- of Sullivan & Cromwell represents the
bank. Based in Palo Alto, Mr. Cullen has a track record of
defending big financial institutions in shareholder litigation,
including a suit against UBS AG over the collapse of Enron that
was dismissed in August.
Former CEO Stumpf is being defended in the derivative suits by
Goodwin's Fondo and Richard Strassberg, co-chair of the firm's
securities and white-collar defense practice group and former
chief of the major crimes unit in the U.S. Attorney's Office for
the Southern District of New York. Mr. Tolstedt is being
represented in the derivative suit by Williams & Connolly's Enu
Mainigi -- emainigi@wc.com.
Mr. Cullen also represents Wells Fargo in a slew of securities
fraud suits in federal court in San Francisco, along with
Christopher Viapiano -- viapianoc@sullcrom.com -- based in
Sullivan & Cromwell's Washington office. That litigation is just
getting underway, with plaintiffs firms vying for leadership of
the consolidated cases.
Wells Fargo has faced labor suits for years from bank employees
who were allegedly fired because they couldn't meet aggressive
sales goals. In individual actions, it has often turned to
Sheppard, Mullin, Richter & Hampton. But the bank has tapped
Munger Tolles for its defense in two whistle-blower class actions
brought more recently under Dodd-Frank and other statutes by
employees who say that they were terminated for reporting the
opening of fake accounts.
Munger Tolles hasn't formally entered an appearance in those cases
-- which are pending in state and federal court in Los Angeles.
But Jonathan Delshad, the lawyer for the plaintiffs, said that he
has been talking with Munger attorneys in trying to obtain
employee records. A spokeswoman for the law firm did not respond
to messages seeking comment on Dec. 13.
Munger Tolles also has a hand in at least two consumer class
actions filed on behalf of bank customers who say that they were
defrauded. David Fry -- David.Fry@mto.com -- and Erin Cox --
Erin.Cox@mto.com -- of the firm's San Francisco and Los Angeles
offices, have led the push to get those suits into arbitration.
Motions to compel are pending in a case in federal court in Utah
and another in New Jersey.
Munger Tolles' Fry also represented Wells Fargo in its $50 million
settlement with the Los Angeles City Attorney's Office in
September.
While the vast majority of Wells Fargo's lawyers are dealing with
potential legal threats from the outside, a subcommittee of the
bank's board is conducting its own internal investigation of the
matter. Shearman & Sterling is handling the investigation for the
board.
WHOLE FOODS: Managers Fired For Whistleblowing Files Class Action
-----------------------------------------------------------------
Chicago Tribune reports that nine managers who were fired by Whole
Foods supermarkets for allegedly manipulating a bonus program have
filed a class-action lawsuit against the grocery chain.
The lawsuit filed in D.C. Superior Court says the managers were
fired for blowing the whistle on a company-wide practice of not
paying bonuses earned by employees. The former managers say Whole
Foods engaged in "systemic wage theft" at its stores nationwide
and that the managers were punished for it after a "sham internal
investigation."
The lawsuit also accuses Whole Foods of defamation for telling
media outlets that the managers were stealing bonuses from their
workers at stores in the Mid-Atlantic region.
Each of the plaintiffs is seeking $25 million in damages. Whole
Foods representatives did not immediately return messages seeking
comment on December 23.
Brooke Buchanan, a spokeswoman for Austin, Texas-based Whole Foods
Market Inc., said that the nine had been dismissed in recent weeks
after a company-wide investigation.
The company said nine managers at stores in Maryland, Virginia and
the District of Columbia engaged in a policy infraction that
allowed the managers to benefit from a profit-sharing program at
the expense of store employees.
Buchanan said at the time that Whole Foods was still investigating
exactly how much money is involved and planned to ensure that
employees at the affected stores are compensated properly.
XYTEX CORP: Loses Motion to Consolidate Sperm Donor Cases
---------------------------------------------------------
Amanda Bronstad, writing for Daily Report, reports that a Georgia-
based sperm bank is facing nearly a dozen "novel and cutting edge"
lawsuits in four states and Canada that allege it misled women
about a donor who turned out to have been convicted of burglary
and a diagnosed schizophrenic.
Single women and lesbian couples who purchased Donor No. 9623's
sperm from Augusta, Georgia-based Xytex Corp. have filed suits
anonymously in federal courts in California, Florida, Georgia and
Ohio. According to Xytex's court filings, two other cases have
been filed in Georgia's state courts, and at least four in Canada,
where Xytex has distribution facilities.
Some of the cases also name individual Xytex employees in its
Atlanta office.
The cases, filed earlier this year, allege that Xytex failed to
disclose that the donor, whose sperm is believed to have resulted
in the births of 36 children, had been convicted on burglary and
was prescribed anti-psychotics for schizophrenia. Xytex had
assured women on its website and in phone calls, the suits say,
that the donor was working toward his doctoral degree and had an
IQ of 160 when, in fact, he had no college degree and a reported
IQ of 130.
Calling the cases "novel and cutting edge," Xytex attorney Robert
"Dusty" Sanford, of counsel at J. Supple Law in Sausalito,
California, moved to transfer the six federal cases to the
Northern District of Georgia, where two of them have been filed.
But on Dec. 7, the U.S. Judicial Panel on Multidistrict Litigation
denied Xytex's motion to consolidate, setting the stage for trials
scheduled for fall 2017 in at least three of the cases.
Xytex attorney Ted Lavender said: "Xytex sought consolidation in
order to streamline the cases it is defending, but will now
continue defending the individual cases in the jurisdictions where
they are pending."
Nancy Hersh, founding partner of San Francisco's Hersh & Hersh,
who has filed most of the cases, did not respond to a request for
comment, and Julia Reed Zaic of Heaviside Reed Zaic in Laguna
Beach, California, who has filed two of the cases, declined to
comment.
Most of the suits don't name the donor, whose identity Xytex
inadvertently disclosed in 2014 to women who used his sperm. They
claim that Xytex failed to ask the donor questions about his
mental health, despite assurances that each applicant underwent a
rigorous medical examination. The suits were brought under
products liability and various consumer fraud and common law
claims. They seek a medical monitoring fund for the children.
But Xytex has raised a number of defenses in court filings,
including whether the women have been injured, particularly since
none of their children have been shown to have inherited mental
illness.
Xytex also has insisted that the claims sound in wrongful birth,
which Georgia courts don't recognize. In motions to dismiss the
two federal cases in Georgia, Lavender, of FisherBroyles in
Atlanta, cited a 2015 ruling by Fulton County Superior Court Judge
Robert McBurney that dismissed claims in the first case against
Xytex on ground that they sounded in wrongful birth.
In a Florida case, another Xytex attorney filed a motion to
dismiss claims disguised as wrongful birth, which Florida law
doesn't recognize apart from medical malpractice allegations. On
Oct. 31, U.S. District Judge James Whittemore rejected those
arguments.
In MDL filings, plaintiffs attorneys accused Xytex of attempting
to coordinate the six cases to the Northern District of Georgia in
order to get a more favorable venue.
"It certainly appears that the primary motivation behind this
motion is an attempt by Xytex to maneuver its way to a venue it
consider to be favorable to their theories of defense," Ms. Zaic
wrote.
YAHOO! INC: Announces Breach of Another 1 Billion User Accounts
---------------------------------------------------------------
Jeff John Roberts, writing for Fortune, reports that on Dec. 14,
Yahoo announced the discovery of a massive hacking incident that
affected one billion user accounts. This would make it the
biggest such breach in history -- even bigger than the hack of
500,000 Yahoo accounts from 2014, which the company disclosed in
September.
The breach disclosed on Dec. 14 occurred in 2013 and, like the one
in 2014, allowed the hackers to obtain personal information but
not credit card details. Here is what Yahoo says the hackers
obtained:
"Yahoo believes an unauthorized third party, in August 2013, stole
data associated with more than one billion user accounts . . . .
names, email addresses, telephone numbers, dates of birth, hashed
passwords (using MD5) and, in some cases, encrypted or unencrypted
security questions and answers.
The term "hashed passwords" means that the hackers obtained
scrambled versions of user passwords, meaning they could not be
immediately deciphered. But as Yahoo notes, some of the hacks
revealed unencrypted security answers -- which would provide a
quick way into users accounts.
The upshot is that anyone who uses Yahoo accounts for email or
services like fantasy sports, should change their passwords
immediately. The company says it is the in the process of
notifying affected consumers.
It is unclear how many (if any) of the Yahoo accounts exposed in
the newly-disclosed 2013 attack were also breached in the 2014
attack.
Yahoo did not identify the hackers responsible for the 2013 hack.
But on Dec. 14, the company provided new details of the 2014
attack, and once again pointed to "the same state-sponsored actor"
who committed the 2014 breach. If it was indeed a
"state-sponsored actor," potential culprits would include China,
Russia, or North Korea, all of which have engaged in serious
hacking and espionage directed at U.S. targets in the past.
The latest hacking news also puts a further cloud over phone giant
Verizon's plan to acquire Yahoo.
"As we've said all along, we will evaluate the situation as Yahoo
continues its investigation. We will review the impact of this
new development before reaching any final conclusions," Verizon
spokesman Bob Verettoni said in a statement.
The issue hanging over Yahoo is when the company discovered the
breaches -- and whether it failed to disclose the incident in a
timely manner. If the company indeed hushed it up, it would
likely provide grounds for Verizon to demand a lower price for
Yahoo or to call off the deal entirely. Yahoo also faces class
action lawsuits over the hacking incidents.
The entire story of what Yahoo knew, and when, is still not
entirely clear. In November, the company told regulators that
some employees discovered evidence of hacking in 2014, but at the
same suggested the employees not appreciate the severity of them.
YAHOO! INC: Size of Data Breach Poses Challenge to Regulators
-------------------------------------------------------------
Noah Kulwin at Vice News reports that Yahoo revealed that it
suffered a massive hack in 2013 that affected at least 1 billion
user accounts. That came just three months after the company
disclosed a hack from 2014 that affected 500 million accounts.
The breaches are thought to be the biggest of all time, presenting
uncharted territory for regulators at the Federal Trade
Commission, which have thus far levied fines in cases that were a
fraction of the size.
But beyond the scale of the breach, Yahoo is unique in that so
many people use their Yahoo email as the credential to log into
other internet services such as messaging or banking, and now
those services are compromised as well.
"Transactions performed over email may be compromised and that can
include all sorts of sensitive data," said Steve Rubin, a lawyer
at Moritt Hock & Hamroff who specializes in digital security.
"Aside from the number of customers, the nature of this data
presents potentially far reaching ramifications."
Recent SEC filings from Yahoo show that that company has been in
touch with the FTC, federal prosecutors' offices, state attorneys
general and other regulators, although not necessarily as part of
any investigation. According to regulatory insiders and legal
experts that spoke to VICE News, the FTC is likely the agency that
will take the lead on any investigation that would materialize.
"The FTC has a responsibility for and can take legal action
against companies for not properly safeguarding people's data,"
said one White House official. "And they have a record of taking
enforcement actions and making those actions stick."
As to how regulators might take on enforcement, Northeastern
University professor Andrea Matwyshyn, who has advised the FTC on
data security policy, said that a major question regulators going
forward is the lack of precedent for something like the Yahoo
hack. The SEC, for example, would handle an investigation
pertaining to whether investors were properly advised of the risks
of a major breach. But it's not clear what the SEC might do.
"Because of the limited case data and enforcement history, we
don't have a legal sense of what the SEC views as adequate
[disclosure of risk]," Matwyshyn said. As for the FTC, which
doesn't publicly announce such investigations, Matwyshyn added
that "certainly this kind of a security breach is consistent with
the attack patterns that have given rise to FTC investigations in
the past.""
Both the FTC and Yahoo declined to comment for this story.
The most recent comparable example in terms of the kind of
information exposed was the hack of the dating service Ashley
Madison, which affected 33 million accounts -- a fraction of the
number exposed in the Yahoo hacks. The company recently settled
its case with the FTC and other regulators for $17.5 million,
though it will only pay $1.6 million because the business is in
serious financial trouble.
Though Yahoo doesn't appear to be as dire a financial situation as
Ashley Madison (Yahoo reported $1.4 billion in bank at the end of
September), the company will likely be able to duck paying out a
financially crippling fine. That's because the FTC's ability to
levy fines has been limited. The largest fine it's ever levied was
a $100 million settlement against Lifelock for false advertising.
Commissioners have in the past asked Congress for authorization to
levy stiffer civil penalties, and though Democrats in the U.S.
Senate have been making noise about the Yahoo hacks, it's unclear
if that will amount to anything.
But even if regulators decline to pursue an investigation of
Yahoo, the company could instead face financial pressure.
Yahoo is in the process of selling itself to Verizon for $4.8
billion. Verizon was already reportedly pretty queasy after the
September hack was revealed, and Bloomberg now reports that the
company has an internal legal team exploring whether Verizon can
get a discount on or exit entirely from the Yahoo acquisition.
Then there's the inevitable lawsuits from Yahoo's own users.
Within hours and days of when the hacks were disclosed in
September and December, Yahoo was hit with multiple class-action
lawsuits. And according to Steve Rubin, a successful class-action
could hit Yahoo significantly, because the potential size of the
class is so large.
In the aftermath of Target's own giant 2013 hack that compromised
the information of 40 million credit cards, the retailer agreed to
pay $10 million to settle its own class-action lawsuit. When asked
how the Target breach compared to the Yahoo hacks in severity and
size, Rubin said that the Yahoo breaches "dwarf" what happened at
Target.
Correction (December 23, 2:25 p.m.): A previous version of this
article misquoted Professor Andrea Matwyshyn discussing the
enforcement policies of the FTC. She was referring to the SEC.
YELP INC: 9th Circuit Appeal Remains Pending
--------------------------------------------
Yelp, Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on November 9, 2016, for the quarterly
period ended September 30, 2016, that a class action appeal
remains pending in the U.S. Court of Appeals for the Ninth
Circuit.
The Company said, "In August 2014, two putative class action
lawsuits alleging violations of federal securities laws were filed
in the U.S. District Court for the Northern District of
California, naming as defendants us and certain of our officers.
The lawsuits allege violations of the Exchange Act by us and our
officers for allegedly making materially false and misleading
statements regarding our business and operations between October
29, 2013 and April 3, 2014. These cases were subsequently
consolidated and, in January 2015, the plaintiffs filed a
consolidated complaint seeking unspecified monetary damages and
other relief. Following the court's dismissal of the consolidated
complaint on April 21, 2015, the plaintiffs filed a first amended
complaint on May 21, 2015. On November 24, 2015, the court
dismissed the first amended complaint with prejudice, and entered
judgment in our favor on December 28, 2015. The plaintiffs have
appealed this judgment to the U.S. Court of Appeals for the Ninth
Circuit."
Yelp connects people with great local businesses by bringing "word
of mouth" online and providing a platform for businesses and
consumers to engage and transact. Yelp's platform is transforming
the way people discover local businesses; every day, millions of
consumers visit its website or use its mobile app to find great
local businesses to meet their everyday needs. Businesses of all
sizes use the Yelp platform to engage with consumers at the
critical moment when they are deciding where to spend their money.
YELP INC: $0.6 Million Settlement Awaits Final Approval
-------------------------------------------------------
Yelp, Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on November 9, 2016, for the quarterly
period ended September 30, 2016, that the $0.6 million settlement
of a class action by former Eat24 employees is awaiting final
court approval.
The Company said, "On April 23, 2015, a putative class action
lawsuit was filed by former Eat24 employees in the Superior Court
of California for San Francisco County, naming as defendants us
and Eat24. The lawsuit asserts that we failed to permit meal and
rest periods for certain current and former employees working as
Eat24 customer support specialists, and alleges violations of the
California Labor Code, applicable Industrial Welfare Commission
Wage Orders and the California Business and Professions Code. The
plaintiffs seek monetary damages in an unspecified amount and
injunctive relief."
On May 29, 2015, plaintiffs filed a first amended complaint
asserting an additional cause of action for penalties under the
Private Attorneys General Act.
"In January 2016, we reached a preliminary agreement to settle
this matter for payments in the aggregate amount of up to
approximately $0.6 million, which the court preliminarily approved
on June 27, 2016. The settlement is currently awaiting final court
approval."
Yelp connects people with great local businesses by bringing "word
of mouth" online and providing a platform for businesses and
consumers to engage and transact. Yelp's platform is transforming
the way people discover local businesses; every day, millions of
consumers visit its website or use its mobile app to find great
local businesses to meet their everyday needs. Businesses of all
sizes use the Yelp platform to engage with consumers at the
critical moment when they are deciding where to spend their money.
YELP INC: $0.2 Million Settlement Awaits Final Approval
-------------------------------------------------------
Yelp, Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on November 9, 2016, for the quarterly
period ended September 30, 2016, that the $0.2 million settlement
of a class action by former Eat24 employees is awaiting final
court approval.
The Company said, "On June 24, 2015, a former Eat24 sales employee
filed a lawsuit, on behalf of herself and a putative class of
current and former Eat24 sales employees, against Eat24 in the
Superior Court of California for San Francisco County. The lawsuit
alleges that Eat24 failed to pay required wages, including
overtime wages, allow meal and rest periods and maintain proper
records, and asserts causes of action under the California Labor
Code, applicable Industrial Welfare Commission Wage Orders and the
California Business and Professions Code. The plaintiff seeks
monetary damages and penalties in unspecified amounts, as well as
injunctive relief.
"On August 3, 2015, the plaintiff filed a first amended complaint
asserting an additional cause of action for penalties under the
Private Attorneys General Act.
"In January 2016, we reached a preliminary agreement to settle
this matter for payments in the aggregate amount of up to
approximately $0.2 million, which the court preliminarily approved
on August 29, 2016. The settlement is currently awaiting final
court approval.
Yelp connects people with great local businesses by bringing "word
of mouth" online and providing a platform for businesses and
consumers to engage and transact. Yelp's platform is transforming
the way people discover local businesses; every day, millions of
consumers visit its website or use its mobile app to find great
local businesses to meet their everyday needs. Businesses of all
sizes use the Yelp platform to engage with consumers at the
critical moment when they are deciding where to spend their money.
* Employers Face Threat of FCRA Lawsuits After Spokeo Ruling
------------------------------------------------------------
ESR News Blog Editor Thomas Ahearn reports that on May 16, 2016,
the Supreme Court of the United States ruled in the case of
Spokeo, Inc. v. Robins that consumers must prove "concrete injury"
in class action lawsuits for alleged "bare" violations of a
federal statute. However, the fact that class action lawsuits
involving the federal Fair Credit Reporting Act (FCRA) that
governs background checks in the U.S. will remain a potential
threat to employers despite recent court rulings dismissing FCRA
lawsuits and citing the Spokeo decision as the reason is Trend
Number 8 in the Employment Screening Resources(R) (ESR) 10th
annual 'ESR Top Ten Background Check Trends' for 2017.
"In no way does the Spokeo decision mean that employers can relax
when it comes to FCRA compliance. It doesn't mean that employers
have a carte blanche right to ignore the technicalities of the
FCRA. Employers certainly still need to ensure that they are in
compliance with their obligations and they are working with
background firms that understand the FCRA inside and out," says
ESR founder and CEO Attorney Lester Rosen. The list featuring
emerging and influential trends in the background check industry
for 2017 will be available at www.esrcheck.com/ESR-Top-Ten-
Background-Check-Trends.
The case of Spokeo, Inc. v. Robins involved a Virginia man who
filed a class action lawsuit against Spokeo -- an online "people
search engine" that sells publicly available information about
individuals -- for alleged violations of the FCRA. The lawsuit
claimed Spokeo violated the FCRA by publishing inaccurate
information about the age, education, marital status, and
professional experience of the plaintiff. The Supreme Court
ruling sent the case back to the Ninth Circuit Court of Appeals
stating its Article III standing analysis in a February 4, 2014,
decision to reverse a dismissal of the case was "incomplete."
In a 6-2 decision in the opinion delivered by Justice Samuel Alito
-- with Justices John Roberts, Anthony Kennedy, Clarence Thomas,
Stephen Breyer, and Elena Kagan joining Alito, and Justices Ruth
Bader Ginsburg and Sonia Sotomayor dissenting -- the Supreme Court
stated that "Article III standing requires a concrete injury even
in the context of a statutory violation. For that reason, Robins
could not, for example, allege a bare procedural violation,
divorced from any concrete harm, and satisfy the injury-in-fact
requirement of Article III."
In explaining that there must be three elements to an Article III
standing analysis, the Supreme Court stated: (a) A plaintiff
invoking federal jurisdiction bears the burden of establishing the
"irreducible constitutional minimum" of standing by demonstrating
(1) an injury in fact, (2) fairly traceable to the challenged
conduct of the defendant, and (3) likely to be redressed by a
favorable judicial decision. The injury-in-fact requirement
requires a plaintiff to show an injury is "concrete and
particularized" and "actual or imminent, not conjectural or
hypothetical."
The Supreme Court ruled that the injury to Robins needed to be
"concrete" and the Ninth Circuit had not analyzed if the alleged
violations of FCRA had created a "degree of risk sufficient to
meet the concreteness requirement." Although an injury can be
intangible, there still must be a risk of harm above and beyond a
technical violation. The Supreme Court also noted that: Because
the Ninth Circuit failed to fully appreciate the distinction
between concreteness and particularization, its standing analysis
was incomplete.
The opinion notes that while the Supreme Court "takes no position
on the correctness of the Ninth Circuit's ultimate conclusion,"
that the Plaintiff "cannot satisfy the demands of Article III by
alleging a bare procedural violation." The opinion also states
that: "Robins cannot satisfy the demands of Article III by
alleging a bare procedural violation. A violation of one of the
FCRA's procedural requirements may result in no harm." The
Supreme Court opinion in the case of Spokeo, Inc. v. Robins is at
www.esrcheck.com/file/SCOTUS-Spokeo-v-Robins-Opinion.pdf.
As reported by ESR News, the Supreme Court heard oral arguments on
November 2, 2015 in the case of Spokeo, Inc. v. Robins on whether
or not a plaintiff had the legal right, or "standing," to bring a
class action lawsuit for a technical violation of the FCRA if that
individual suffered no actual concrete harm from the violation.
Under the FCRA, consumers may claim damages from $100 to $1000 if
a company publishes inaccurate information about them. More
information about the case is at www.scotusblog.com/case-
files/cases/spokeo-inc-v-robins/.
"Although the Supreme Court decision in Spokeo does not put the
standing to sue issues completely to rest, it does appear that the
Court's ruling may well slow down class action lawsuits based
solely on highly technical violations of the Fair Credit Reporting
Act where in fact no one was harmed," Mr. Rosen said at the time.
"It seems to lean in the direction of the 'no harm, no foul' rule.
However, it would not appear to impact a class action lawsuit, for
example, against a screening firm that did not use reasonable
procedures in reporting criminal cases where consumers were
actually or likely to be harmed."
Several FCRA lawsuits have been dismissed by courts citing Spokeo
as the reason for dismissal. In August 2016, a Wisconsin federal
judge dismissed a class action lawsuit against Time Warner Cable
over alleged FCRA violations by finding the plaintiff could not
show he suffered "concrete harm" from the background check process
in a decision that cited the Spokeo ruling. In granting the
Motion to Dismiss, U.S. District Judge Pamela Pepper found the
plaintiff "has not alleged a concrete harm resulting from the
defendant's alleged violation" and "does not have standing, and
the court must dismiss the case."
In October 2016, a California federal court judge dismissed a
class action lawsuit against Lyft over alleged violations of the
FCRA during the transportation network company's background check
process. In the Order Granting Motion to Dismiss, Chief
Magistrate Judge Joseph C. Spero agreed with Lyft's assertion that
the plaintiff lacked standing under Article III of the U.S.
Constitution, citing the Supreme Court decision in the Spokeo
case. Judge Spero wrote in the order: Under Spokeo, a plaintiff
who seeks to assert a claim under the FCRA is required to allege
facts showing a concrete injury.
In an October 2016 article entitled "Court Decisions Don't
Alleviate Employer Vigilance" on the Society of Human Resource
Management (SHRM) website, Mr. Rosen told SHRM Online
Manager/Editor Roy Maurer that employers should not be "lulled
into a false sense of security" and "must still be vigilant with
compliance." Mr. Maurer interviewed Mr. Rosen and other FCRA
compliance experts for the article, and they all agreed that
employers "can't let their guard down about complying with
background screening rules despite recent court decisions."
Mr. Rosen said the following about any fallout from the Spokeo
ruling in the article:
Mr. Rosen explained that if the Lyft decision and others like it
are indicative of a barrier to being able to sue unless there are
actual damages to plaintiffs, (a few things might happen). First,
plaintiffs' attorneys will focus on those cases that contain
actual harm, such as employers running employment screens without
consent or background check firms delivering reports with
erroneous information. Second, if the courts are no longer seen
as a way to regulate procedural requirements of the FCRA, the
regulatory agencies -- the Federal Trade Commission and the
Consumer Financial Protection Bureau -- will fill the vacuum.
(Third, more cases may be brought in state courts.)
In response to the rising trend of FCRA class action lawsuits, Mr.
Rosen wrote a whitepaper entitled Common Ways Prospective or
Current Employees Sue Employers Under the FCRA that includes the
top nine reasons why businesses face FCRA lawsuits from applicants
and employees. Mr. Rosen writes that: "More often than not,
employers are sued for violating FCRA 101 -- simple rules and
procedures that are clearly set out in the law." The complimentary
whitepaper from ESR is available for download at
www.esrcheck.com/Whitepapers/Ways-Employees-Sue-Employers-Under-
FCRA/.
Mr. Rosen also wrote a second whitepaper for employers who work
with third party Consumer Reporting Agencies (CRAs) to obtain
background checks entitled Common Ways Consumer Reporting Agencies
are Sued Under the FCRA. In this whitepaper, Mr.Rosen describes
eighteen practices that can give rise to FCRA class action
lawsuits against CRAs that employers must keep in mind when
choosing a CRA to help them navigate the legally-sensitive area of
employment background checks. The complimentary whitepaper from
ESR is available for download at
www.esrcheck.com/Whitepapers/Ways-CRAs-Sued-Under-FCRA/.
* Securities Industry Expresses Concern on DOL Fiduciary Rule
-------------------------------------------------------------
Jeff Kern, writing for Law.com, reports that if one follows the
recent onslaught of articles and blogs, Donald Trump's election to
the presidency has placed a target squarely on the back of a
Department of Labor (DOL) rule that imposes a fiduciary standard
on those who provide investment advice in connection with employer
retirement plans and Individual Retirement Accounts (IRA). Yet
reports of the rule's demise may be premature. Whether its death
knell is sounded depends on how the new administration chooses to
navigate certain political, legislative, and regulatory obstacles.
Fiduciary Rule
The DOL issued the final rule on April 6, 2016, as part of the
Obama administration's aggressive, consumer-oriented regulatory
platform, setting an initial rollout date of April 10, 2017. In
essence, the rule requires broker-dealers to either agree to act
as fiduciaries when advising investors with regard to retirement
accounts, or move away from certain fee structures, including
those that are commission-based, for such services.
By entering into a "Best Interest Contract," or "BIC," that
obligates broker-dealers to act in the best interest of their
customers, financial advisors can continue to receive commissions
that would otherwise be prohibited by the rule, absent the BIC.
Thus, the rule aims to eliminate the financial incentives that
could influence financial advisors to give conflicted advice.
The rule has generated anxiety in the securities industry not only
because of the anticipated costs of compliance but also due to the
fear that it represents the first step toward transforming how
financial products are sold. In addition, financial firms are
concerned that the rule will open the floodgates to investor
complaints, arbitrations, and class-action lawsuits. Firms have
already expended substantial resources to become compliant with
the rule. Some, like Bank of America, have abandoned commission-
based retirement accounts in favor of those charging fixed
management fees, while others have opted to stop including
exchange traded funds and certain types of mutual funds in their
retirement accounts offerings.
The rule has also generated staunch opposition from Republican
politicians, industry lobby groups, and certain sectors of the
financial press, all of whom have characterized the rule as
regulatory overreach that will have the unintended effect of
driving up fees and reducing investment options. They also argue
that DOL lacks the requisite market experience to competently
enforce the rule and that the DOL's presence will only add
confusion and overlap to an already over-crowded regulatory field.
Not surprisingly, the rule has generated numerous legal
challenges. In National Ass'n for Fixed Annuities v. Perez, No.
16-cv-01035, the plaintiff claimed that the rule unlawfully
created a private right of action, and was arbitrary and
capricious, promulgated in excess of statutory jurisdiction, void
for vagueness, and a violation of the Regulatory Flexibility Act
of 1980, 5 U.S.C. Secs. 601-612 (2016), due to its failure to
consider the rule's impact on small businesses. See 2016 WL
6573480 (D.D.C. Nov. 4, 2016). On Nov. 4, 2016, the District Court
for the District of Columbia granted the DOL summary judgment,
securing an early round victory for the rule. See id.
Other cases are pending in Texas, Kansas, and Minnesota. On
Nov. 17, 2016, a Texas District Judge heard oral arguments in
Chamber of Commerce v. Perez, No. 16-cv-01476 (N.D. Tex. June 1,
2016), a case raising similar and additional issues, including a
challenge on First Amendment grounds.
Speculation has mounted since Trump's election triumph that his
administration will move quickly to spike the rule before its
implementation. As reported in the Nov. 15, 2016 edition of the
Wall Street Journal, the legislative agenda that House Speaker
Paul Ryan is beginning to craft with Trump's transition team
includes a strategy related to the rule. In addition, Rep. Ann
Wagner (R., Mo.), one of the rule's most strident opponents, has
said that congressional Republicans are prepared to renew their
efforts to eliminate it. "I am confident that our Republican-led
Congress and President Trump will work together to end this
egregious rule," Rep. Wagner told the Journal.
Political Considerations
Despite the growing momentum to stop the rule's implementation, it
is far from clear that it is destined for the scrap heap. Trump
himself has said nothing about the rule. The closest he has come
is an August campaign speech in which he called for a temporary
moratorium on new agency regulations. While eliminating the rule
presents a fertile opportunity to take a symbolic ax to the type
of regulatory excess that Trump campaigned against, he also faces
political considerations, at least in the early stages of his
term. The president-elect may decide to spend his start-up
political capital on more mainstream issues, such as tax reform,
immigration, national security, and trade.
Even if Trump decides to pursue some regulatory reform, he may
choose to concentrate his efforts on the Dodd-Frank Wall Street
Reform and Consumer Protection Act, 12 U.S.C. Secs. 5301-5641
(2016). In addition, Trump may not want to risk antagonizing the
sizable demographic of older voters and aging baby-boomers, who
may perceive attempts to roll back the rule as inimical to their
interests. Finally, in that many financial firms have already
expended substantial resources to comply with the rule, Trump
might conclude that rescinding it would only sow more disruption
in the industry.
Legislation
Even if these political considerations do not kick in, the
president-elect's path to eliminating the rule is still strewn
with significant challenges . One option open to the new
administration is to let the Republican-controlled Congress do the
heavy lifting through legislative action. In fact, even while the
rule was in process, the House proposed legislation to counter it.
On Oct. 27, 2015, the House passed H.R. 1090, called the Retail
Investor Protection Act, which, if enacted, prohibits the DOL from
instituting new rules defining when an individual is a fiduciary
before the Securities and Exchange Commission issues a final rule
on the matter.
Its provisions have since been rolled into House Financial
Services Committee Chairman Rep. Jeb Hensarling's (R-Tex.)
Financial CHOICE Act, whose primary aim is to roll back Dodd-
Frank. However, these and other legislative efforts to dismantle
the rule are vulnerable to a Democratic filibuster. While
Republicans maintained their majority in the upper house, they
still lack the supermajority of 60 seats needed to end a
filibuster through cloture. Thus, if the Democratic minority
concludes that the rule is worth fighting for, it could obstruct
any efforts to legislate it out of existence.
New Rulemaking
Opponents of the rule can also consider administrative action.
With the Senate under Republican control, President-elect Trump's
nominee to serve as Secretary of Labor, Andrew Puzder, should be
confirmed in relatively short order. The new secretary can then
initiate a new rulemaking process to rescind, modify, or replace
the rule. However, these efforts must conform to the
Administrative Procedure Act (APA). Under the APA, a court may
set aside an agency action if it is found to be "arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance
with the law." 5 U.S.C. Sec. 706(2)(A).
In order to avoid this fate, the DOL would need to establish that
(1) Congress has not directly spoken to the precise question at
issue, and (2) its interpretation is reasonable, i.e., supported
by a satisfactorily articulated explanation and rational
connection between facts found and the choice made.1 The Supreme
Court has held that the same "arbitrary and capricious" standard
that applies to the promulgation of rules also applies to their
rescission. See Encino Motorcars, 136 S. Ct. at 2125-26.
Conclusion
Donald Trump's election has fueled speculation that the DOL
Fiduciary Rule will be among the casualties of his
administration's plan to reconfigure the federal government and
how it operates. Yet before the president-elect can move to
eliminate the rule, he must engage in an informed political
calculus and then, if he decides to move forward with its
elimination through either legislation or administrative action,
he must navigate the process with care and skill. Given these
requirements, the demise of the rule is by no means a foregone
conclusion.
Endnotes:
1. See Encino Motorcars v. Navarro, 136 S. Ct. 2117, 2126 (2016);
Chevron, U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 842-44
(1984); Motor Vehicle Mfrs. Ass'n of United States v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
*********
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