/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/170105.mbx C L A S S A C T I O N R E P O R T E R Thursday, January 5, 2017, Vol. 19, No. 4 Headlines AARONS INC: Class Action Notice Sent to 22,000 N.J. Consumers ABEONA THERAPEUTICS: Feb. 17 Lead Plaintiff Bid Deadline ADVANCED CARE: Settles TCPA Class Action for $9.25 Million AIR CANADA: Air Flight 624 Crash Class Action Certified ALERE INC: Jan. 13 Lead Plaintiff Bid Deadline ALEXION PHARMACEUTICALS: Johnson & Weaver Files Class Action ALPHABET INC: Former Product Manager Files Labor Class Action AMERICAN COMMERCIAL: May Appeal Rest Break Class Action Ruling ASURION INSURANCE: Court Refuses to Certify Class in "Mix" Suit AUSTRALIA: Intellectual Disabled Workers' Settlement Okayed AUSTRALIA: Palm Island Residents Set to Receive Compensation BEHR PROCESS: Faces Class Action Over Labor Law Violations BELLAMY'S: Trading Suspension Extended Amid Class Action BHL CONSTRUCTION: Faces Class Action Over Late Delivery of Units BLU: Smartphones Back for Sale in Amazon Amid Class Action BLUE SHIELD: Judge Dismisses Harvoni Coverage Class Action BMW OF NORTH AMERICA: "Comfort Access" Class Action Can Proceed BROADCOM CORPORATION: Feb. 27 Settlement Fairness Hearing Set CANADA: Stewart McKelvey Files Racial Discrimination Suit vs. CAF CANADA: Windsor & Tecumseh Presents Motion in Bingo Class Action CANADA: Ex-Civilian Employee Wants to Join Case v. Armed Forces CANADA: Judge to Rule on Windsor & Tecumseh Bingo Class Action CANTON DOCKSIDE: Shuts Down Business Amid Wage Class Action CHA HOLLYWOOD: Sued in Cal. Over Failure to Provide Meal Break CHIPOTLE: Sued for Misstating Chorizo Burrito Nutritional Facts COCO'S RESTAURANTS: Sued in Cal. Over Failure to Pay Workers OT COOK COUNTY, IL: Class Action Over Bail Bonds Ongoing CORMEDIX: New Jersey Court Dismisses Securities Class Action COUNTY DISPOSAL: Disgruntled Customers Mull Class Action DDC CONSTRUCTION: Court Rules on Class Action Waivers Issue DIRECT DIGITAL: Has Made Unsolicited Calls, Action Claims DOORKING INC: Faces "Vela" Suit Over Failure to Pay Overtime DUPONT: Jury Rules in Favor of Plaintiff in C8 Class Action EARTHSTONE ENERGY: Potential Securities Claims Investigated EAST POINT, GA: Class Action Claims Power Overbilling of $34MM ENDO INTERNATIONAL: Lundin Law Firm Reminds of Jan. 6 Deadline EVERBANK FINANCIAL: Settles Securities Lawsuit For $300,000 FEDERATION OF MULTICULTURAL: Fails to Pay Employees OT, Suit Says FENTON & MCGARVEY: Class of Consumers Certified in "Long" Suit FIELDTURF USA: Bathgate Wegener & Wolf Firm Files Class Action FLORIDA: Voting Rights of 1.5MM Felons May Be Restored FORD MOTOR: Employees File Class Action Over 401(k) Plan Fees GANZ INC: Two Charities Get Residual Webkinz Settlement Funds GENTLEMEN'S CLUB: Exotic Dancers File Labor Class Action GOOGLE INC: Faces Complaints Over Freezing Pixel Smartphones GOOGLE INC: To Change E-mail Scanning After Class Action GOPRO: Faces Securities Class Action Over Karma Drone Recall HALLIBURTON: Settles Asbestos Liability Class Action for $54MM HARLEY-DAVIDSON: Faces Class Action Over Motorcycle Design Defect HINDS COUNTY, MS: Settles Remaining Claims in Labor Class Action HOME HEALTH: Faces "Shotomiroy" Suit for Failure to Pay Min. Wage HONEY SOLUTIONS: Judge Orders Dismissal of Class Action ILLUMINA INC: Shareholders File Class Action in California ILLUMNIA INC: Feb. 14 Lead Plaintiff Bid Deadline in Levi Suit ILLUMINA INC: Faruqi & Faruqi Files Securities Class Suit INDIAN CREEK: Ex-Employee Files Class Action in Over Unpaid Wages INFUSYSTEM HOLDINGS: Jan. 9 Lead Plaintiff Bid Deadline INTER-CON SECURITY: Does Not Properly Pay Workers, Action Says IOWA: Class Action Aims to Equalize School-Funding Formula ISRAEL CHEMICALS: Motion to Approve Class Action Dismissed JRC VENTURES: Faces "Smith" Suit Over Failure to Pay Overtime KANSAS CITY, MO: Testimony Begins in Trash Services Class Action KLM TRANSPORT: Faces Class Actions Over Wage-and-Hour Violations MADISON COS: Thunder on the Mountain Class Action Can Proceed MARICOPA COUNTY, AZ: Melendres Arrest Sparked Arpaio Class Action MARKETO INC: Faces "Shain" Suit Over Failure to Pay Overtime MATTEL INC: March 10 Modification Kit Claim Deadline Set MDL NO. 2311: April 19 Settlement Approval Hearing Set MENARDS: Sued for Misclassifying Drivers as Contractors METAL PARTNERS: 7th Cir. Grapples with Article III Questions MJ-MC HOME: Sued in New York Over Failure to Pay Minimum Wages NABORS INTERNATIONAL: Faces "Sicard" Suit Over Failure to Pay OT NATIONAL COLLEGIATE: Jr. Hockey Players Have Option to File Suit NEC TOKIN: March 2 Capacitors Settlement Fairness Hearing Set NEW LONDON, CT: Implements Changes Following Housing Class Action NEW ORIENTAL: Feb. 13 Lead Plaintiff Bid Deadline NEW YORK: 12,000 Seniors, Disabled May Get Rent Rollbacks NICOLET RESTAURANT: 7th Circuit Rules on Article III Injury Issue NISSAN: Settles Altima Melting Dashboard Class Action in Florida OCWEN FINANCIAL: March 20 Class Action Opt-Out Deadline Set PAM BONDI: New Prosecutor Will Investigate Complaint PARK WEST: Does Not Properly Pay Workers, "Balderrama" Suit Says PATRIOT NATIONAL: Court Issues Restraining Order in Class Action PINNACLE RECOVERY: Faces TCPA Class Action in California PLATINUM EQUITIES: Real Estate Mogul Targeted in Attack PLAYDEK: Unsung Story Kickstarter Backer Mulls Class Action PRADA USA: Faces "Duran" Suit Over Failure to Pay Overtime Wages PROGRESSIVE: Ohio Appeals Court Affirms Class Action Dismissal RENT-A-CENTER INC: Glancy Prongay Files Class Action Lawsuit RENT-A-CENTER: Goldberg Law Files Securities Class Action Lawsuit RENT-A-CENTER: February 21 Lead Plaintiff Motion Deadline Set RJ REYNOLDS: Court Says $18.5MM Tobacco Case Verdict Excessive SAN FRANCISCO, CA: May Pay Muni Operators $8MM in Settlement SCRANTON, PA: Faces Class Action Over $300 Annual Garbage Fee SHOP VAC: Approval of Wet-Dry Vacuum Settlement Appealed SIRIUS XM: Landmark Ruling Leaves Artists With Lump of Coal SLATER & GORDON: ASIC Probe May Hamper $250MM Class Action STATE STREET: $53-An-Hour Lawyer Charges $500 in Settlement SVM MANAGEMENT: Faces "Joinder" Suit Over Unlawful Penalties SYNGENTA AG: Grosvenor Farms' Suit Moved to Kansas Dist. Ct. TARGET CORPORATION: Immigrant Workers Allege Exploitation THERANOS INC: Taps Wilmer Cutler to Defend Class Actions TOP FLITE: 6th Cir. Reverses TCPA Class Action Certification TOYOTA: Faces Class Action Over Soy-Based Vehicle Wiring TRADEWINDS BEVERAGE: Faces False Advertising Class Action TRUMP UNIVERSITY: Class Action Settlement Gets Prelim. Court OK TRUMP UNIVERSITY: Trump Guarantees $25MM Settlement Funding TUBEMOGUL INC: Brower Piven Files Class Action in California TWINS GROUP: Combs May Renew Bid to Certify Class, Court Says UBER TECHNOLOGIES: 9th Cir. Won't Revisit Class Action Ruling UMTH LAND: Plaintiffs' Motion to Remand Class Action Granted UNITED STATES: Tribes Express Concern Over Pipeline Uncertainty UNIVERSAL HEALTH: Feb. 21 Lead Plaintiff Motion Deadline Set VALVE: Faces Suit by Parents Over "Skins" Gambling VERSA LOGISTICS: Doesn't Properly Pay Drivers, "Robins" Suit Says VERSACE: Faces Class Action Over Secret "Black Code" VOLKSWAGEN AG: U.S. Class Action System Better for Plaintiffs VOLKSWAGEN AG: Several Brands Face Emission Probes in Europe VOLKSWAGEN GROUP: Faces "Saavedra" Suit Over Defeat Device VOLKSWAGEN GROUP: Settles 2.0L TDI Emissions Class Action WALMART: Thousands Get Early Christmas Present From Lawsuit WEGMANS FOOD: Faces Class Action in New York Over FCRA Violation WELLS FARGO: Accused of Fraudulent Conduct Over Stock Price WHOLE FOODS: Workers File Class Action in D.C. Over Bonuses YAHOO! INC: Class Action May Expand to 1.5 Billion Accounts YAHOO! INC: May Face Fines Over Data Breach Once GDPR Enforced YAHOO! INC: Impact of Data Breach on Verizon Deal Uncertain YAHOO! INC: Data Breaches Unlikely to Impact Verizon Deal ZIMMER GMBH: Sept. 5 Durom Settlement Claims Filing Deadline Set * Big Data May Spark Class Actions, Possible Compliance Issues * CFPB to Finalize Rules on Arbitration Clauses in Class Action * Courts Set to Tackle Sports Law-Related Cases in 2017 * Food Beverage Class Action Surge Blamed on Corporate Wrongdoing * Large Law Firms at Risk of Data Security Breach, Report Says * Medical Societies Fail to Protect Public From Sexual Predators * New NLRB Board May Reexamine Decisions on Class Action Waivers * Outcome of Mandatory Arbitration Agreements Issue Uncertain * PRA May Pave Way for Class Action Litigation in Canada * TINA.org Lists Some of Unfulfilling Settlements in 2016 * Trump Administration May Fight Efforts to Outlaw Administration * Zelle Reviews 2016 Indirect Purchaser Class Action Highlights ********* AARONS INC: Class Action Notice Sent to 22,000 N.J. Consumers ------------------------------------------------------------- Williams Cuker Berezofsky, LLC, disclosed that on December 27, 2016, notice of a class action lawsuit against Aaron's Inc., a Georgia based rent-to-own company, was mailed to more than 22,000 New Jersey consumers. The Notice was sent pursuant to an order by Judge Michael A. Shipp of the United States District Court for the District of New Jersey in the case of Korrow v. Aaron's Inc., Case No. 10-6317. Judge Shipp had previously certified the case to proceed as a class action. The Plaintiff claims that Aaron's, Inc. ("Aarons") violated certain New Jersey consumer protection laws by contracting for and/or charging certain fees in its rent-to-own contracts. These fees were referred to in the contracts as a monthly "Service Plus" fee and a "Return Check" fee (if a customer's check is returned for any reason). Aaron's denies that it violated any laws or that it must pay any Class member money. The Plaintiff seeks to obtain $100 per class member for each contract entered into during the class period under the New Jersey Truth-in-Consumer Contract, Warranty, and Notice Act and triple damages for amounts paid under those contracts for "Service Plus" fees under the New Jersey Consumer Fraud Act. The Plaintiff also seeks an injunction barring Aaron's from contracting for or charging both fees in New Jersey. Aaron's denies that it did anything wrong. It claims that the disputed fees do not violate New Jersey laws. Consumers who entered into a rent-to-own contract at an Aaron's Inc. New Jersey store between March 16, 2006, to March 31, 2011, are members of the Court-approved class. Members of the Class have until February 10, 2016 to deliver a written request to be removed from class action. The Court has appointed attorneys from The Wolf Law Firm, LLC of North Brunswick, New Jersey, Williams Cuker Berezofsky of Philadelphia, Pennsylvania, and The Law Office of Christopher J. McGinn of Princeton, New Jersey to represent the certified consumer class. More information, including litigation documents, is available at www.AaronsConsumerAction.com. Class counsel may be reached at info@AaronsConsumerAction.com or by calling 877-227-6101. ABEONA THERAPEUTICS: Feb. 17 Lead Plaintiff Bid Deadline -------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, reminds purchasers of: (1) PlasmaTech Biopharmaceuticals, Inc. securities from March 31, 2015 through June 19, 2015, both dates inclusive; and/or (2) Abeona Therapeutics Inc. securities from June 22, 2015 through December 9, 2016, both dates inclusive of the important February 14, 2017, lead plaintiff deadline in the class action. The lawsuit seeks to recover damages for Abeona investors under the federal securities laws. To join the Abeona class action, go to http://www.rosenlegal.com/cases-1009.htmlor call Phillip Kim, Esq. or Kevin Chan, Esq. toll-free at 866-767-3653 or email -- pkim@rosenlegal.com -- or -- kchan@rosenlegal.com -- for information on the class action. According to the lawsuit, throughout the Class Period Defendants made false and/or misleading statements and/or failed to disclose that: (1) the science behind Abeona's proposed gene therapy treatment for Sanfilippo syndrome is unviable; (2) Steven H. Rouhandeh, Abeona's Executive Chairman and Principal Executive Officer, previously worked in a high ranking position for a biotech promoter who was convicted of securities fraud and involved in manipulating biotech stocks; and (3) as a result, Defendants' statements about Abeona's business, operations and prospects were materially false and misleading and/or lacked a reasonable basis at all relevant times. On December 12, 2016, analyst firm Mako Research published a report on Abeona asserting, among other things, that Abeona's science underpinning its gene therapy approach is unviable and Steven H. Rouhandeh previously worked in a position of authority at D. Blech & Co.--a firm named after now-convicted felon David Blech. On this news, shares of Abeona fell $0.70 per share or over 13% from its previous closing price to close at $4.45 per share on December 12, 2016, damaging investors. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than February 14, 2017. If you wish to join the litigation, go to http://www.rosenlegal.com/cases-1009.htmlor to discuss your rights or interests regarding this class action, please contact Phillip Kim or Kevin Chan of Rosen Law Firm toll free at 866-767- 3653 or via email at pkim@rosenlegal.com or kchan@rosenlegal.com. Attorney Advertising. Prior results do not guarantee a similar outcome. ADVANCED CARE: Settles TCPA Class Action for $9.25 Million ---------------------------------------------------------- Julie D. Hoffmeister, Esq. and David N. Anthony, Esq., of Troutman Sanders, disclosed that the United States District Court for the Eastern District of Louisiana recently granted final approval of a $9.25 million Telephone Consumer Protection Act class action against Advanced Care Scripts, Inc. ("ACS"). According to the class action complaint, ACS engages in the management and dispensing of specialty medications and oral oncology products. To advertise their services, ACS allegedly blasted thousands of junk faxes to businesses, including the named plaintiff, Jefferson Radiation Oncology, LLC, without obtaining the businesses' prior express consent to do so. After engaging in litigation for nearly a year, the parties reached a class action settlement consisting of a $9.25 million settlement fund, with $20,000 being awarded to the class representative and $1.85 million for attorneys' fees. The settlement class consists of "all persons and entities that received facsimile transmission from Advanced Care Scripts or its vendor that advertise, promote, or describe Advanced Care Scripts' products or services and do not contain" an opt-out notice advising recipients of their right to stop future junk faxes. The class consists of approximately 24,000 individuals and entities. No members of the settlement class objected to the proposed settlement, and only one class member opted out. AIR CANADA: Air Flight 624 Crash Class Action Certified ------------------------------------------------------- Heide Pearson, writing for Global News, reports that the class action lawsuit on behalf of passengers of Air Canada Flight 624 -- which crash landed on a Halifax runway in March, 2015 -- has been certified, according to Wagner's Law Firm. Wagners, which is representing the passengers, said in a release on Dec. 19 the lawsuit against Air Canada, Airbus S.A.S., Nav Canada, the Halifax International Airport Authority and Transport Canada. Transport Canada challenged the certification, but the Nova Scotia Supreme Court ruled that as landlord of the airport, it could be held responsible for navigation systems and other equipment. AC 624 crash landed about 200 metres short of the runway on the night of March 29, 2015. It then bounced into the air, finally coming to a stop after skidding along the runway for about another 570 metres. The plane's landing gear and an engine were torn from the plane. The fuselage was largely intact, despite significant damage to the bottom of the plane. Though no one was killed, more than two dozen of the 133 passenegers sustained injuries in the crash. Nearly all of the passengers waited on the tarmac in a snowstorm before being taken inside, the lawsuit alleges. Wagners said on Dec. 19 they're in the process of notifying the passengers on board. Passengers have the opportunity to opt out of the class-action lawsuit if they want to start their own separate legal action. Wagners says counsel and lawyers will return to court Jan. 16 to discuss scheduling steps that lead up to the trial. ALERE INC: Jan. 13 Lead Plaintiff Bid Deadline ---------------------------------------------- Lundin Law PC, a shareholder rights firm, disclosed a class action lawsuit against Alere Inc. concerning possible violations of federal securities laws between February 29, 2012 and November 4, 2016 inclusive. Investors who purchased or otherwise acquired Alere shares during the Class Period should contact the firm in advance of the January 13, 2017 lead plaintiff motion deadline. To participate in this class action lawsuit, click here. You can also call Brian Lundin, Esquire, of Lundin Law PC, at 888-713- 1033, or e-mail him at -- brian@lundinlawpc.com -- No class has been certified in the above action. Until a class is certified, you are not considered represented by an attorney. You may also choose to do nothing and be an absent class member. According to the Complaint, Alere made false and misleading statements and/or failed to disclose: that the Company's wholly- owned subsidiary, Arriva Medical, LLC ("Arriva"), was submitting claims to Medicare for deceased patients; that this conduct subjected Arriva to revocation of its Medicare enrollment; and that as a result of the above, Alere's statements about its business, operations, and prospects were false and misleading and/or lacked a reasonable basis at all relevant times. On November 4, 2016, Alere announced that the Centers for Medicare and Medicaid Services alleged that Arriva submitted claims for 211 deceased patients over a five-year period, and thus revoked Arriva's Medicare enrollment. When the above was disclosed to the public, the value of Alere dropped, causing investors harm. Lundin Law PC was established by Brian Lundin, a securities litigator based in Los Angeles dedicated to upholding shareholders' rights. ALEXION PHARMACEUTICALS: Johnson & Weaver Files Class Action ------------------------------------------------------------ Johnson & Weaver, LLP disclosed that a class action complaint was filed on behalf of purchasers of Alexion Pharmaceuticals, Inc., (NASDAQ: ALXN) securities during the period between February 10, 2014 and November 9, 2016. Alexion is a biopharmaceutical company that develops and commercializes therapeutic products. The lawsuit will seek to recover damages for shareholders. According to the complaint, throughout the Class Period defendants issued materially false and misleading statements to investors and failed to disclose that: Alexion employed improper sales practices with respect to Soliris; as a result, Alexion's revenues from Soliris sales were unlikely to be sustainable; and therefore, Alexion's public statements were materially false and misleading at all relevant times. If you have any questions concerning this notice, or if you purchased stock before the February 10, 2014, class period, please contact lead analyst Jim Baker () at 619-814-4471. If you email, please include your phone number. Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice or may choose to do nothing and remain an absent class member. About Johnson & Weaver, LLP Johnson & Weaver, LLP is a nationally recognized shareholder rights law firm with offices in California, New York and Georgia. The firm represents individual and institutional investors in shareholder derivative and securities class action lawsuits. For more information about the firm and its attorneys, please visit http://www.johnsonandweaver.com.Attorney advertising. Past results do not guarantee future outcomes. ALPHABET INC: Former Product Manager Files Labor Class Action ------------------------------------------------------------- Benchmak Monitor reports that a former product manager at Alphabet Inc has reportedly filed a complaint against Google claiming he was fired on unfair grounds. A class action lawsuit filed by a California labor law firm with the state court in San Francisco refers to the Google employee as John Doe and alleges that Google's policies violate labor laws, which permit employees to protect themselves by sharing information with outsiders and the press. AMERICAN COMMERCIAL: May Appeal Rest Break Class Action Ruling -------------------------------------------------------------- On December 22, 2016, the Supreme Court of California ("California Supreme Court") rendered its decision in the consolidated cases of Augustus, Hall and Davis v. American Commercial Security Services filed on July 12, 2005 in the Superior Court of California, Los Angeles County (the "Augustus case"). The Augustus case is a certified class action involving alleged violations of certain California state laws relating to rest breaks. The case centers on whether requiring security guards to remain on call during paid rest breaks violated Section 226.7 of the California Labor Code. On July 31, 2012, the Superior Court of California, Los Angeles County (the "Superior Court") entered judgment in favor of plaintiffs in the amount of approximately $89.7 million (the "common fund") which includes interest through July 6, 2012. Subsequently, the Superior Court also awarded plaintiffs' attorneys' fees of approximately $4.5 million in addition to approximately 30% of the common fund. ABM Industries Incorporated appealed the Superior Court's rulings to the Court of Appeals of the State of California, Second Appellate District (the "Court of Appeal"). On December 31, 2014, the Court of Appeal issued its opinion, reversing the judgment in favor of the plaintiffs and vacating the award of $89.7 million in damages and the attorneys' fees award. The California Supreme Court held that on-call and on-duty rest breaks are prohibited by California law and reversed the Court of Appeal's judgment on this issue. Dollar amounts shown do not include interest after July 6, 2012. The Company has not taken a reserve for the Augustus case and is currently assessing any change in light of the decision of the California Supreme Court. ABM is disappointed in this result and intends to vigorously pursue its options for further review and relief. Specifically, ABM is considering filing a petition for rehearing with the California Supreme Court, which would be due on January 6, 2017. Depending on the resolution of that petition, ABM may consider additional options for further appellate review, including potentially filing a petition for a writ of certiorari with the U.S. Supreme Court. ASURION INSURANCE: Court Refuses to Certify Class in "Mix" Suit --------------------------------------------------------------- The Hon. G. Murray Snow denied the Plaintiff's motion for class certification in the lawsuit titled Amanda Mix v. Asurion Insurance Services Incorporated, et al., Case No. CV-14-02357-PHX- GMS (D. Ariz.). Amanda Mix brought the purported class action lawsuit pursuant to the Fair Credit Reporting Act. "Plaintiff Amanda Mix has standing to bring her claims against Defendants Asurion Insurance Services Inc. and Sterling Infosystems, Inc. Plaintiff's proposed classes, however, fail to meet the requirements of Federal Rule of Civil Procedure 23(a)," Judge Snow explained. Judge Snow also denied Defendant Sterling Infosystems, Inc.'s motion for leave to file a sur-reply and motion to dismiss. A copy of the Order is available at no charge at https://goo.gl/bYxGZL from Leagle.com. The Plaintiff is represented by: David Neal McDevitt, Esq. Russell Snow Thompson, IV, Esq. THOMPSON CONSUMER LAW GROUP PLLC 5235 E. Southern Ave., Suite D106-618 Mesa, AZ 85206 Telephone: (602) 845-5969 E-mail: dmcdevitt@consumerlawinfo.com rthompson@consumerlawinfo.com Defendant Asurion Insurance Services Incorporated is represented by: Peter Christopher Prynkiewicz, Esq. Robert Shawn Oller, Esq. Joseph Harkins, Esq. LITTLER MENDELSON PC Camelback Esplanade 2425 East Camelback Road, Suite 900 Phoenix, AZ 85016 Telephone: (602) 474-3600 Facsimile: (602) 957-1801 E-mail: pprynkiewicz@littler.com soller@littler.com jharkins@littler.com Defendant Sterling Infosystems Incorporated is represented by: Albert E. Hartmann, Esq. Michael C. ONeil, Esq. REED SMITH LLP 10 South Wacker Drive, 40th Floor Chicago, IL 60606-7507 Telephone: (312) 207-2821 Facsimile: (312) 207-6400 E-mail: ahartmann@reedsmith.com michael.oneil@reedsmith.com - and - David D. Garner, Esq. Justin James Henderson, Esq. LEWIS ROCA ROTHGERBER CHRISTIE LLP 201 East Washington Street, Suite 1200 Phoenix, AZ 85004 Telephone: (602) 262-5335 Facsimile: (602) 734-3891 E-mail: dgarner@lrrc.com jhenderson@lrrc.com AUSTRALIA: Intellectual Disabled Workers' Settlement Okayed ----------------------------------------------------------- Wendy Williams, writing for Pro Bono Australia, reports that as many as 10,000 workers with intellectual disabilities could be paid compensation in excess of $100 million after the Federal Court approved a historic class action settlement. The agreement, reached between the federal government and Maurice Blackburn Lawyers, follows a class action suit launched in 2013, alleging that disabled workers employed in Australian Disability Enterprises had been underpaid. Tyson Duval-Comrie, the lead plaintiff in the case, claimed the Business Services Wage Assessment Tool (BSWAT), the federal government system of calculating wages, discriminated against people with intellectual disabilities and violated disability discrimination laws. Following a long-running fight to secure back pay for the workers, this latest decision paves the way for the workers -- many of whom had been earning as little as 99 cents an hour -- to secure compensation and be paid directly by the government. Josh Bornstein, a principal at Maurice Blackburn, said it was a "historic outcome" and followed a long and arduous David and Goliath struggle for the employees. "This class action settlement will help to right the wrongs that have been committed against workers with intellectual disabilities, many of whom live below the poverty line. It is a great advance for workers with disabilities in this country," Bornstein said. "This historic outcome would never have happened without the class action and the determined advocacy of a small and under resourced but dedicated group that included lawyers and disability advocates who refused to give up." Maurice Blackburn said the catalyst for the class action was a 2012 case brought against the Commonwealth by two individual workers with intellectual disabilities. Following that case, the Federal Court decided for the first time that using BSWAT to set the wages of intellectually disabled workers was discriminatory and contravened the act. While the High Court refused the Commonwealth's application for special leave to appeal in May 2013, workers with intellectual disabilities in ADE continued to be paid under BSWAT and the Commonwealth refused to compensate them. But in March this year, the Business Services Wage Assessment Tool Payment Scheme Amendment Act 2016 was passed, requiring the Commonwealth to pay each affected worker 70 per cent of the amount claimed in the legal action. Approximately 10,000 supported employees with intellectual impairment will now be eligible to receive a one-off payment of $100 or more through the BSWAT Payment Scheme, administered by the Department of Social Services. Assistant Minister for Social Services and Disability Services Jane Prentice said the decision was good news for eligible supported employees. "Payments will take into account taxation, and will not generally affect Centrelink payments. This is only possible because the government established the BSWAT Payment Scheme Act," Ms. Prentice said. "We know that many people have been waiting for the class action to settle before registering for the scheme and we encourage anyone who thinks they may eligible to lodge an application for payment. "It is important that people affected are paid fairly." Ms. Prentice said the Australian Government was committed to supporting Australians with disability to participate in all aspects of society and the economy. "Australian Disability Enterprises (ADEs) provide employment opportunities for some 20,000 workers," she said. "ADEs allow people with disability an opportunity for social interaction and to contribute to their local community through work and will continue to play an important role in the lives of people disability into the future." Workers can register for the BSWAT Payment Scheme here. Employees must register by April 30, 2017, to be considered for payment under the scheme. AUSTRALIA: Palm Island Residents Set to Receive Compensation ------------------------------------------------------------ Townsville Bulletin reports that the State Government could still have to pay millions of dollars in compensation to Palm Island residents over the police response to the 2004 riots. Lex Wotton's legal team was set to travel on Dec. 18 to Palm Island to speak with residents about the claims process, and whether they could be eligible for compensation. It comes after the Federal Court awarded $220,000 in damages over the 2004 Palm Island riots, finding that police acted with a sense of impunity and breached the Racial Discrimination Act. Levitt Robinson Solicitors represented Mr Wotton and the Palm Island community throughout the landmark class action and now want to educate residents about how they can make a claim. Senior partner Stewart Levitt said residents who were inside the 18 homes that were raided were likely to have sizeable claims. "There would also be other people who were arrested in circumstances that may or may not be reasonable in terms of force," he said. "There also could be people who were traumatised from being present at certain events. "We think there are about 30 to 40 people who would have reasonably substantial claims . . . in the order of the $50,000 to $120,000 bracket." Mr Levitt and his team will also be bringing Sydney basketball icon and radio DJ Rodney Overby. Mr Overby will be playing basketball with the local children and it's hoped he will gain the attention of residents. Convicted rioter Lex Wotton, who led the class action, has already been awarded $95,000. Mr Wotton's home was one of 18 Palm Island houses that were raided by armed and masked SERT officers as children watched on. Mr Levitt said he was optimistic further compensation payments could be negotiated outside of court with the State Government following Justice Mortimer's ruling. He would consider, with the co-operation of the State Government, putting some of the compensation funds in a trust that could be used for infrastructure or other purposes to benefit the community. "That money could go to some sort of trust to benefit the people of Palm Island," Mr Levitt said. "We would only do that by inviting the State Government to engage in such -negotiations." BEHR PROCESS: Faces Class Action Over Labor Law Violations ---------------------------------------------------------- Jenie Mallari-Torres, writing for Northern California Record, reports that a Brentwood man claims he was not adequately compensated for his work as a field representative for a paint company and has filed a class-action suit. Ryan McBain filed a complaint individually and on behalf of others similarly situated on Dec. 8 in the U.S. District Court for the Northern District of California against Behr Process Corp., Behr Paint Corp. and Masco Corp. alleging violation of the Fair Labor Standards Act and California labor codes. According to the complaint, the plaintiff alleges that he was employed as a field representative by the defendants and assigned to different Home Depot stores. He claims his responsibilities were answering customer inquiries, replenishing stocks and maintaining store displays. He alleges he was required to prepare time-consuming reports and shuttle between stores and was misclassified as exempt from overtime pay and was not provided with proper meal and rest periods. The plaintiffs hold Behr Process Corp., Behr Paint Corp. and Masco Corp. responsible because the defendants allegedly failed to keep accurate payroll records of hours worked, meal periods taken, and overtime worked by their employees, refused to pay any overtime compensation to employees for hours worked in excess of 40 hours per week and refused to provide adequate meal and rest periods. The plaintiff requests a trial by jury and seek judgment in his favor, designate collective action, declare misclassification of class members, unpaid wages, liquidated damages, civil penalties, unpaid wages from meal/rest periods not taken, reimburse business expenses, interest, costs and expenses of action, attorneys' fees and other relief as the court deems just. He is represented by Laura L. Ho -- lho@gbdhlegal.com -- William C. Jhaveri-Weeks -- wjhaveriweeks@gbdhlegal.com -- Byron Goldstein -- brgoldstein@gbdhlegal.com -- and Ginger L. Grimes -- ggrimes@gbdhlegal.com -- of Goldstein, Borgen, Dardarian & Ho in Oakland. U.S. District Court for the Northern District of California Case number 3:16-cv-07036 BELLAMY'S: Trading Suspension Extended Amid Class Action -------------------------------------------------------- Daniel Palmer, writing for The Australian, reports that beleaguered infant milk group Bellamy's has again left investors shell-shocked as it announced an extension of a trading suspension beyond the festive season, with an update from key supplier Bega Cheese unlikely to soothe fears. It now expects to resume trading on January 13, a month after its shares first went into a halt pending "an updated announcement of the impact of trading conditions on the company's expected financial results". In a brief statement to the ASX on Dec. 21, the former market darling (BAL) said it needed to conclude negotiations with its suppliers before it could adequately update the market. "Bellamy's requests that its securities remain suspended from trading pending negotiations with key suppliers/manufacturers in order to determine the impact of those negotiations on the company's expected financial results," Bellamy's said on Dec. 21. It leaves traders in the dark heading into Christmas as concerns swell about its financial troubles following a surprise December 2 downgrade. One of its suppliers -- the ASX-listed Bega Cheese (BGA) -- has confirmed it remains in close dialogue with Bellamy's as the saga rolls on, although ominously it urged shareholders to note that both its infant formula business went beyond Bellamy's and its business was much broader than just infant formula. "Whilst infant formula is important to us, Bega is a large multi- product dairy company with a strong ongoing profitable business in multiple categories," chairman Barry Irvin said. Bega reaffirmed its forecasts, saying guidance put forward at its AGM remained "its position". "Bega Cheese is a key supplier to Bellamy's and has been and continues to discuss supply arrangements and volume forecasts with them," the company added. "Bega Cheese supplies infant formula to a number of customers with product destined for both Australian and international markets. There continues to be strong consumer demand for infant formula in China and in other Asian markets." Bega shares closed 3.87 per cent stronger on Dec. 21, at $4.03. It coincided with a positive trading update from a2 Milk as companies linked to the infant milk sector look to shrug off any impact from the troubles at Bellamy's. The December 2 update from Bellamy's wiped over 40 per cent from its own valuation, with news of a trading halt to further explain forecasts on December 12 further smashing investor confidence. A further downgrade would be crippling for its under-pressure share price. The Tasmanian baby food company most recently traded at $6.68, well shy of levels above $12 reached ahead of the December 2 report. Around this time in 2015 it reached an all-time high of $16.50. The latest development ramps up the pressure on chairman Rob Woolley and chief executive Laura McBain, with the credit for the company's strong growth over a decade completely evaporating over the course of less than three weeks. Beyond the more than $600 million slashing of the company's valuation, the threat of two class actions hang over the company's head as well as a probe from the corporate watchdog. Australia's two leading class action law firms -- Maurice Blackburn and Slater & Gordon -- separately detailed plans to assess the prospect of a multi-million dollar suit on behalf of bitter investors "Bellamy's had a reputation as a quality company selling quality product," Slater & Gordon senior class actions lawyer Mathew Chuk 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." The view of its top executives has been hurt by an August stock sell-off by Ms McBain and Mr Woolley. Two weeks after releasing a positive full-year report, Ms McBain got rid of $2.4 million worth of stock on August 29, the same time as Mr Woolley shed $2.9m worth. Both deals were made at a strike price above $14. Ms McBain and Mr Woolley also divested a combined $5.8m worth of shares in March when the shares were valued around $10.50. Persistent attempts by The Australian to contact Mr Woolley and Ms McBain have been unsuccessful. BHL CONSTRUCTION: Faces Class Action Over Late Delivery of Units ---------------------------------------------------------------- Free Malaysia Today reports that the National House Buyers Association (HBA) is taking up a class action against the urban wellbeing, housing & local government minister and the Controller of Housing for a condominium project developed by BHL Construction Sdn Bhd. In a statement released on Dec. 27, HBA secretary-general Chang Kim Loong said the class action was commenced by 71 aggrieved buyers in challenging the grant of the Extension of Time (EOT) by the Controller of Housing. HBA volunteer lawyers, working on a pro bono basis, have taken up the case as public interest litigation. According to Chang, the EOT has denied unit owners the right to compensation in lieu of the delay in delivery of vacant possession of the units. "The issue of the 'frequent' granting of EOTs has been a long- running point of contention as it has been utilised for the benefit of developers on delayed housing projects on several occasions to the detriment of house buyers," Chang said. "The granting of a 12-month EOT to the developer completely extinguished the purchasers' rights to claim compensation for late delivery." Chang explained that under the Housing Development (Control & Licensing) Act 1966, the format for the sale and purchase agreement (SPA) is strictly regulated and must be in a mandatory prescribed form (Schedule G and H), which requires developers to hand over keys to house buyers within 24 to 36 months from the date of the agreement. "These are the prescribed durations permitted under the statutory form of SPA. No deviation from the statutory form is allowed. "If the developer fails to complete and hand over the units within the prescribed time, it would have to pay the buyers liquidated ascertained damages (LAD) of 10% per annum X purchase price, a form of compensation agreed upon by both the contracting parties, i.e. purchasers and developer," Chang said. "Instead, with a stroke of a pen, the Housing Controller extinguished the rights to claim LAD by granting of the extension." The EOT, Chang said, is being frequently used by developers to complete their projects on the pretext of "hardship and special circumstances", thus depriving house buyers of their claim for agreed liquidated damages for late delivery. "The Housing Controller must understand and be mindful that the Housing Development (Control & Licensing) Act 1966 is a piece of social legislation and its aim is to protect house buyers. "The granting of the EOT will defeat such a purpose and undo accrued rights and make a mockery of Parliament," Chang said. The High Court has now fixed 9am, Monday, Feb 27 for hearing of the judicial review and subsequent submissions in the suit between the aggrieved house buyers (represented by HBA volunteer lawyers) against the minister, Controller of Housing and BHL Construction. BLU: Smartphones Back for Sale in Amazon Amid Class Action ---------------------------------------------------------- Phonearena.com reports that Blu, a Florida-based company that's been kicking out budget Android smartphones for a few years now, was faced with a bit of trouble earlier this year. A report broke out that around 120,000 individual phones that were created and sold by Blu contained spyware that sent personal information to servers in China, with this data containing things such as text messages, call logs, location info, and even full contact lists. That report saw Blu get hit with a class action lawsuit back in November, and it also caused the company to switch to Google's OTA update solution rather than the Chinese one that was previously being used. As a result of all of this, Blu's sales likely took a turn for the worse. In fact, the Blu R1 HD -- one of the company's most popular smartphones of 2016 -- was pulled from its home on Amazon about three weeks before all of the above news broke. Blu claims that the R1 HD was pulled from Amazon due to limited quantities they were facing, but with the spyware news breaking shortly after its removal, the reasoning behind this move on Blu's part is still seen as a bit murky and mysterious. However, weeks after being completely absent from Amazon, the Blu R1 HD is once again available for purchase through the online retailer. Prior to its removal, the R1 HD was ranked as the best- selling unlocked smartphone on Amazon -- all in thanks to the phone's very low price and incredibly comparable spec list. After the whole spyware debacle though, the R1 HD is no longer the holder of that title. This isn't all that surprising considering the fact that Blu wasn't selling the phone during Amazon's Black Friday and Cyber Monday promotions, likely causing a great loss of potential sales. In any case, the Blu R1 HD is now available for purchase with Amazon saying that the phone will arrive sometime before Christmas. The R1 HD certainly isn't the most amazing smartphone that's ever been created, but with a starting price of just $49.99, the R1 HD is a great starter smartphone or could even serve as a functional backup handset. BLUE SHIELD: Judge Dismisses Harvoni Coverage Class Action ---------------------------------------------------------- Shelby Livingston, writing for Modern Healthcare, reports that a federal judge dismissed a class action against Blue Shield Life & Health and Blue Shield of California alleging the insurers unfairly denied patients coverage for the expensive hepatitis C drug Harvoni. The U.S. District Court judge, William H. Orrick, wrote in an opinion that because Blue Shield recently changed its policies to broaden coverage for Harvoni, the plaintiffs' claims are now moot. "Given these actions, recurrence of the challenged practice is unlikely and plaintiffs' claims against Blue Shield of California for denial of benefits are moot," the court opinion states. The class action was first filed in October 2015 in the U.S. District Court of the Northern District of California. Plaintiffs Aram Homampour, John Bartels, and Jon Naka, who suffer from hepatitis C, each requested and were denied coverage for Harvoni under their employee benefit plan, on the grounds that the drug was not medically necessary because the patients' liver damage was not severe enough. Under Blue Shield of California's policies, to qualify for Harvoni, members were required to have advanced liver damage or show a contraindication to another hepatitis C drug, Abbvie's Viekira Pak. Viekira Pak is less expensive at $84,000 for a full course of treatment, but it also may cause serious side effects. Blue Shield was not available for comment by deadline. The patients argued that denying them the life-saving drug violates the Employee Retirement Income Security Act of 1974, the federal law governing employer-sponsored health benefit plans. Harvoni and other such expensive drugs have come under fire for driving up the nation's total health spending. A 12-week treatment course of Harvoni costs about $99,000. The drug, made by manufacturer Gilead, cures hepatitis C. At the end of 2015, Blue Shield updated its policies to expand coverage for Harvoni to patients with less advanced liver damage. And a few months later, it removed the requirement that patients must show a contraindication to Viekira Pak. Blue Shield in April and May sent letters to current plan members who were previously denied Harvoni coverage and invited them to resubmit requests. According to the opinion, one of the plaintiffs was granted coverage for Harvoni after the Blue Shield policy was expanded. The other two took Viekira Pak and so were no longer suffering from hepatitis C. "As none of the named plaintiffs have an ongoing medical need for Harvoni, and therefore have no right to Harvoni related-coverage, they are not entitled to compel Blue Shield to re-review their years old requests," the opinion states. Many insurers have tried to limit access of expensive hepatitis C drugs to only the sickest patients. In May, a U.S. District judge ordered Washington Medicaid to give Harvoni to all hepatitis C patients, not just those with the worst liver damage. Because of the threat of legal battles, private insurers and states have been lifting restrictions that limit who can receive expensive hepatitis C drugs. BMW OF NORTH AMERICA: "Comfort Access" Class Action Can Proceed --------------------------------------------------------------- Newsome Melton provides information on the case styled Myers v. BMW of North America, LLC et al. Comfort Access Case: Quick Facts Case: Myers v. BMW of North America, LLC et al Case Number: 3:16-cv-00412 Court: California Northern Nature of Suit: Potential Class Action Lawsuit Date Filed: January 24, 2016 Companies Involved: BMW of North America LLC Vehicles Involved: BMW X5 What is the Comfort Access Case About? The Judge presiding over a putative class action lawsuit involving an alleged defect in certain BMW X5 vehicles partially denied the automaker's motion to dismiss. This ruling has important implications for BMW owners, which we will explain in greater detail below. The case, styled Myers v. BMW of North America, 3:15-cv-412, was originally filed in January 2016 in the United States District Court for the Northern District of California. The plaintiff and putative class representative is Kieva Myers. She alleges that on October 19, 2015, her young child was locked inside of her 2013 BMW X5 while she was walking around to the driver's side door. She claims that this occurred because of a defect in the vehicle's "comfort access system." The comfort access system is a feature that allows consumers to access their vehicles without activating the remote control. According to the complaint, this system is supposed to prevent the vehicle from being locked if the remote control is still within the cabin. However, the plaintiff alleges that a defect in the system can allow the car to lock even when the key is still in the vehicle, which can trap young children who are unable to unlock and open the doors by themselves. The plaintiff contends that BMW violated California's Consumer Legal Remedies Act ("CLRA") and Unfair Competition Law ("UCL"), and committed fraud by omission by failing to disclose the alleged comfort access system defect. The plaintiff seeks to represent a class of all consumers in California who purchased or leased 2008 through 2015 BMW X5s equipped with the comfort access feature. Official Ruling on the Comfort Access Case? BMW denies the plaintiff's allegations, and has filed multiple motions to dismiss. Among other things, BMW initially argued that there is no defect in the comfort access system, that it never represented that it is impossible to lock an X5 when the key is inside the vehicle, and that it affirmatively warned of the possibility of lockouts or system malfunctions. The Court rejected several of these arguments back in October, ruling that the plaintiff had sufficiently alleged: (1) the existence of a defect; (2) that the defect poses a safety hazard; (3) and a causal relationship between the alleged defect and safety hazard. However, the Court also ruled that the plaintiff failed to allege that she actually relied upon BMW's alleged misrepresentations and omissions, or that BMW had actively concealed the defect. The plaintiff responded by amending her complaint again, which in turn was met by another motion to dismiss by BMW. This motion was the subject of the Court's ruling. In the motion, BMW argued that the plaintiff had still not sufficiently alleged active concealment or actual reliance. The Court sided with BMW on the active concealment issue, and dismissed the common law fraud claim with prejudice. However, the Court sided with the plaintiff on the UCL and CLRA claims, rejecting BMW's argument that the plaintiff had not alleged actual reliance because she did not claim to have "personally viewed any BMW materials." In doing so, the Court pointed out that the plaintiff alleged that her husband "conducted thorough research on the vehicle, including reading BMW's materials and looking at the vehicle's owners' manual, and that he discussed his research, with her." The Court explained that "[t]hese facts suggest that, had a disclosure been made, her husband would have discovered it and relayed it to her." What is Next for BMW? BMW has twenty days to answer the plaintiff's Second Amended Complaint. From there, the parties will engage in discovery, which will likely be followed by a motion for summary judgment and a motion for class certification. Of course, it's always possible that the case will settle before or after any of those events occur. What if I do not live in California? The Myers complaint seeks relief for only California consumers. However, most states have enacted some form of consumer protection statute similar to those invoked in that case. For example, Florida's Unfair and Deceptive Trade Practices Act ("FDUTPA") is similar to California's UCL and CLRA, and allows consumers to obtain money damages, attorney's fees and costs, and other relief. If you think you may have been sold a defective vehicle without being told about the problem, you should consult with an experienced consumer rights law firm to determine what legal remedies may be available. But you must act fast as there are one or more time limitations than can forever bar your right to bring any claim. BROADCOM CORPORATION: Feb. 27 Settlement Fairness Hearing Set ------------------------------------------------------------- The following statement is being issued by Cohen Milstein Sellers & Toll PLLC regarding the Broadcom Corporation Stockholder Litigation: UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION IN RE BROADCOM CORPORATION STOCKHOLDER LITIGATION Lead Case No. SA 15 CV 00979 JVS (PJWx) THIS DOCUMENT RELATES TO: ALL ACTIONS SUMMARY NOTICE OF PENDENCY OF CLASS ACTION, PROPOSED CLASS ACTION DETERMINATION, PROPOSED SETTLEMENT OF CLASS ACTION, SETTLEMENT HEARING AND RIGHT TO APPEAR ANNEX A-2 TO: ALL RECORD AND BENEFICIAL OWNERS OF BROADCOM CLASS A COMMON STOCK WHO OWNED OR HELD BROADCOM CLASS A COMMON STOCK FROM MAY 27, 2015 THROUGH AND INCLUDING FEBRUARY 1, 2016 (THE "CLASS PERIOD"), INCLUDING ANY AND ALL OF THEIR RESPECTIVE SUCCESSORS IN INTEREST, PREDECESSORS, REPRESENTATIVES, TRUSTEES, EXECUTORS, ADMINISTRATORS, HEIRS, ASSIGNS, OR TRANSFEREES, IMMEDIATE AND REMOTE, AND ANY PERSON OR ENTITY ACTING FOR OR ON BEHALF OF, OR CLAIMING UNDER, ANY OF THEM, AND EACH OF THEM (THE "CLASS," TO BE COMPOSED OF "CLASS MEMBERS"). EXCLUDED FROM THE CLASS ARE DEFENDANTS, MEMBERS OF THE IMMEDIATE FAMILY OF ANY DEFENDANT, ANY ENTITY IN WHICH A DEFENDANT HAS OR HAD A CONTROLLING INTEREST, AND THE LEGAL REPRESENTATIVES, HEIRS, SUCCESSORS, OR ASSIGNS OF ANY SUCH EXCLUDED PERSON. YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules of Civil Procedure and an order of the Court, that the above- captioned litigation (the "Litigation") has been certified as a non-opt out class action on behalf of the Class as set forth in the full Notice of Pendency of Class Action, Proposed Settlement, Settlement Hearing and Right to Appear (the "Notice"). A copy of the Notice can be obtained at www.BroadcomStockholderLitigation.com. YOU ARE ALSO HEREBY NOTIFIED that Plaintiffs in the Litigation have reached a proposed settlement of the Litigation (the "Settlement") that provides for a series of representations that will be made by Broadcom Limited and filed with the SEC. Lead Counsel intends to request that the Court award attorneys' fees and reimbursement of expenses that will be paid by Defendants in connection with the Litigation. A settlement hearing will be held before the Honorable James V. Selna of the United States District Court for the Central District of California (the "Court") at the Ronald Reagan Federal Building and US Courthouse, 411 West Fourth Street, Courtroom 10C, Santa Ana, California 92701 on February 27, 2017 at 1:30 p.m. (Pacific Time Zone) to, among other things: (i) determine whether the Settlement should be finally approved by the Court as fair, reasonable and adequate, and in the best interests of Plaintiffs and the Class; (ii) determine whether an Order and Final Judgment should be entered pursuant to the Stipulation dismissing the Litigation with prejudice as against Plaintiffs to the Litigation and the Class and effectuating the releases described in the Notice; (iii) consider any request by Lead Counsel for an award of Fees and Expenses; (iv) hear and determine any objections to the Settlement or to any request of Lead Counsel for an award of Fees and Expenses; and (v) rule on such other matters as the Court may deem appropriate. IF YOU ARE A MEMBER OF THE CLASS, YOUR RIGHTS WILL BE AFFECTED BY THE PROPOSED SETTLEMENT CLASS ACTION DETERMINATION You may obtain a copy of the Notice at www.BroadcomStockholderLitigation.com, or by contacting the Settlement Notice Administrator: Broadcom Corporation Stockholder Litigation Notice Administrator c/o KCC Class Action Services P.O. Box 43434 Providence, RI 02940-3434 BroadcomStockholderLitigation@kccllc.com Any objections to the proposed Settlement, and/or Lead Counsel's application for an award of attorneys' fees and reimbursement of litigation expenses, must be filed with the Court and delivered to Lead Counsel and the Defendants' Counsel such that they are received no later than February 6, 2017, in accordance with the instructions set forth in the Notice. PLEASE DO NOT CALL OR WRITE TO THE COURT REGARDING THIS NOTICE. Inquiries, other than requests for the Notice, may be made to the following Lead Counsel: Richard A. Speirs Cohen Milstein Sellers & Toll PLLC 88 Pine St. 14th Floor New York, NY 10005 Joshua S. Devore Cohen Milstein Sellers & Toll PLLC 1100 New York Ave. N.W. 5th Floor Washington, DC 20005 Dated: December 2, 2016 By Order of the United States District Court Central District of California The Honorable James V. Selna CANADA: Stewart McKelvey Files Racial Discrimination Suit vs. CAF ----------------------------------------------------------------- Stewart Mckelvey on Dec. 21 disclosed that systemic racial discrimination and harassment are the basis of a class action filed in the Federal Court by Stewart McKelvey on behalf of three former members of the Canadian Forces. The Plaintiffs, who propose to represent all persons in Canada who have been enrolled as members in the Canadian Forces and who are or who identify as racial minorities, visible minorities or Aboriginal peoples, allege that the Canadian Forces, from top to bottom, has failed to protect racial minorities and Aboriginals from racism within the ranks. "When individuals enroll in the Canadian Forces, they expect to serve, advance and protect the ideals we value and enjoy as Canadians -- equality, fundamental justice and human dignity," said Scott Campbell, co-counsel representing the Plaintiffs. "But our clients allege that the very institution we trust to bring these ideals to the world, has denied them, and those they represent, these basic human rights." The Statement of Claim outlines the racial harassment and discrimination the Plaintiffs endured while serving as members in the Canadian Forces across Canada and on international soil. The Statement of Claim also details the resulting injuries, losses and emotional trauma they still endure. "This filing is a defining moment for Canadian Forces members who have experienced racial harassment and racial discrimination," said Chris Madill, co-counsel representing the Plaintiffs. "We intend to shine a bright light on the alleged behaviours and institutional practices described in the Statement of Claim." The Statement of Claim alleges that the Canadian Forces is liable for this systemic racial discrimination and harassment, in part because such conduct breaches the equality rights guaranteed by section 15 of the Canadian Charter of Rights and Freedoms. The Plaintiffs and their counsel will seek to have the action certified by the Federal Court as a class action and expect others who have experienced racial discrimination and harassment in the Canadian Forces will join the class action. CANADA: Windsor & Tecumseh Presents Motion in Bingo Class Action ---------------------------------------------------------------- CTV Windsor reports that lawyers for the City of Windsor and the Town of Tecumseh have presented a motion in the ongoing class action bingo lawsuit. It calls for an end to the order that protects the identities of charities listed in the class action suit, and those who have opted out. Brendan van Niejenhuis, a lawyer for the defendants, argues the city and town need the information to find out the scope of the lawsuit. It could cost the city and town a combined $70 million. Both municipalities are accused of collecting an excessive amount of fees for charity bingos and other fundraisers dating back to 1993. Brian Radnoff -- bradnoff@lerners.ca -- a lawyer for the plaintiffs, says releasing the identity of the class members and those who have opted out would be unfair. Mr. Radnoff adds it opens the groups to backlash in the community, and puts their existence in jeopardy. Justice Terrence Patterson will rule on the motion at a later date. CANADA: Ex-Civilian Employee Wants to Join Case v. Armed Forces --------------------------------------------------------------- CTV News reports that a former civilian employee wants to be included in the sexual misconduct and discrimination class action lawsuit against the Canadian Armed Forces. Fern McCuish began her career as a member of the military but then left to further her education, before returning to the Department of National Defence as a civilian employee. In both roles, she claims she experienced and witnessed abuse of power, harassment and bullying. "Whenever I did bring concerns to my supervisor, he was caustic and nasty about it," Ms. McCuish said. Ms. McCuish says she was the only female member of a small team. A DND internal investigation eventually concluded two of 11 allegations were founded. "He followed me down the backstairs in the stairwell and started to berate and harass me outside of my workplace, pointing his finger at me and screaming in the street, in the dockyard,' said Ms. McCuish. Not long after, Ms. McCuish says she lost her job when her unit was closed five years ago. When she recently learned a Halifax lawyer was launching a class action lawsuit against the federal government, alleging systemic sexual misconduct and discrimination in the Canadian Forces, she tried to get involved but was told she couldn't because she was a civilian employee. "I don't think that it's fair," Ms. McCuish said. "I don't think that it's fair at all." Ray Wagner, the lawyer representing the military members, says at first his firm didn't really consider that civilian employees may also be affected, but he's since heard from several who say they are. "They raised very troubling circumstances in terms of how they were treated," said Mr. Wagner. "Female civilian workers, who were working in the trades, had expectations, were dealt with very poorly." Mr. Wagner is now expanding his class action to include civilian employees over the next couple weeks. Ms. McCuish says it's the right thing to do. "I don't feel that I had my say because I was stifled," she said. Ms. McCuish since moved on and is happy in another job, but she wants acknowledgement and recognition for what she experienced working for Canada's Department of National Defence. The lawsuit has not yet been certified. Mr. Wagner hopes that will happen early in the new year. CANADA: Judge to Rule on Windsor & Tecumseh Bingo Class Action -------------------------------------------------------------- Doug Schmidt, writing for Windsor Star, reports that divulging the names of the charities involved in a multimillion-dollar lawsuit against Windsor and Tecumseh could expose them to financial harm, a class-action lawyer argued in court on Dec. 21. It's "a very rational and very reasonable fear over what the community will do," lawyer Brian Radnoff told Superior Court Justice Terry Patterson, citing reader comments attached to news stories posted online and by callers to radio talk shows. Many of the online commentators threatened to stop donating to the charities -- if they ever found out who they were. Windsor and Tecumseh are seeking the lifting of a court order preventing them from learning which charities decided to opt out of a multimillion-dollar class-action lawsuit brought against the municipalities over bingo licensing fees. Losing the lawsuit could mean a payout by the municipalities, including interest, of $80 million or more. That figure, which would not be covered by insurers, represents a fifth of the city's annual tax levy. Mr. Radnoff, whose Lerners law firm represents the named plaintiffs including the ALS Society of Essex County, accused the defendants of having "inflamed the passions of the community" in their multimedia campaign urging charities to opt out of the bingo lawsuit. Now facing "peril," Mr. Radnoff told the Dec. 21 hearing that those charities "need the protection of this court" and that their very existence is threatened. But Brendan van Niejenhuis -- brendanvn@stockwoods.ca -- of Toronto law firm Stockwoods, acting for the defendants, argued there has been no firm evidence of any charity losing donations as a result of their involvement in the bingo lawsuit. He cited other comments posted under those same online news stories, including readers calling for the mayor to be jailed and councillors to be locked up for having allegedly "stolen" money from those charities that used bingos for fundraising. "These are not serious comments," Mr. van Niejenhuis said of the online posters and live talk radio commenters. Judge Patterson reserved his judgment for a future date. The defendants need to know how many charities have opted out of the lawsuit in order to measure their taxpayers' exposure should the municipalities lose the case and be forced to pay out, van Niejenhuis said after the hearing. The defence lawyers have that list, but are forbidden by Judge Patterson's previous order from divulging it to their clients. A number of high-profile groups publicized they were opting out during the period of eligibility earlier in 2016, including the University of Windsor, Windsor Regional Hospital, Art Gallery of Windsor, Windsor Symphony Orchestra, Windsor Minor Hockey Association, Brentwood and the Windsor-Essex Catholic District School Board. The chair of the Greater Essex County District School Board said there had been agonizing among trustees before the decision was made not to opt out. The biggest class-action suit to ever hit the city and Tecumseh has been moving slowly through the courts for the past eight years and is still only at the stage of procedural wrangling. The issue is whether Windsor and Tecumseh charged more than what it cost to administer charity bingo licences going back many years, in essence creating an illegal tax. Belle River District Minor Hockey Association and Essex County Dancers are the other named plaintiffs. Mr. Radnoff took pains to emphasize during the hearing that none of the other potential beneficiary charities are, in a legal sense, "suing" Windsor or Tecumseh. But every charity that cashes in -- should the plaintiffs win -- will eventually be subject to being publicly identified, Mr. Radnoff said. CANTON DOCKSIDE: Shuts Down Business Amid Wage Class Action ----------------------------------------------------------- Jonathan Munshaw, writing for Baltimore Business Journal, reports that Canton Dockside has closed after 12 years in business, as its owners prepare to fend off a class-action lawsuit from former employees. Multiple employees of the crab house posted on social media on Dec. 27 that they were notified the restaurant would be closing, effective immediately. Meanwhile, the restaurant is still having to fend off accusations that it failed to pay its employees proper wages. Two waitresses, Christine Jackson and Megan Blankenship, claim the Canton Dockside's owners, Earl and Eric Hamilton, failed to pay them the minimum wage for almost four years and did not pay overtime, even when they worked over 40 hours in a week, according to court records. Earl Hamilton could not be reached for comment on the restaurant closing or the lawsuit. In the most recent lawsuit, filed to the U.S. District Court of Maryland earlier in December, the former Canton Dockside employees claim that between pooled tips and the basic wages they were paid, Canton Dockside regularly failed to its employees at least $3.63 per hour, the pre-tipped minimum wage required by Maryland's Fair Labor Standards Act. Ms. Jackson was employed by Canton Dockside between 2008 and 2014, according to court documents, while Ms. Blankenship was employed with the restaurant up until August. The lawsuit also states that employees, ranging from bussers to bartenders, regularly worked over 40 hours per week but were not given the $10.88 per hour minimum wage for overtime required by state law. Ms. Jackson is being represented by Rockville-based lawyer Howard B. Hoffman, while Towson-based lawyer Bradford W. Warbasse is representing Ms. Blankenship. Court documents show that the plaintiffs in the case are still awaiting a formal response from the Hamiltons and Canton Dockside. A call to Canton Dockside on Dec. 27 went unanswered. The lawsuit comes as another Canton restaurant, the Speakeasy Saloon, had to file for Chapter 11 bankruptcy following a similar suit. Seven former employees of the speakeasy accused the bar of refusing to pay some workers wages or overtime pay, only allowing them to collect tips. The owners of the Speakeasy Saloon were ordered to pay $468,435 in back wages and attorneys fees. Canton Dockside and Speakeasy Saloon are located less than a mile away. CHA HOLLYWOOD: Sued in Cal. Over Failure to Provide Meal Break -------------------------------------------------------------- Soledad Sison, on behalf of herself and others similarly situated v. Cha Hollywood Medical Center, L.P., and Does 1 through 50, inclusive, Case No. BC644129 (Cal. Super. Ct., December 16, 2016), is brought against the Defendants for failure to provide uninterrupted meal periods of not less than 30 minutes, and second meal periods of not less than thirty minutes for shifts in excess of 10 hours. Cha Hollywood Medical Center, L.P. operates a general medical and surgical hospital in California. The Plaintiff is represented by: David Yeremian, Esq. Enoch J. Kim, Esq. DAVID YEREMIAN & ASSOCIATES, INC. 535 N. Brand Blvd., Suite 705 Glendale, CA 91203 Telephone: (818) 230-8380 Facsimile: (818) 23070308 E-mail: david@yeremianlaw.com enoch@yeremianlaw.com CHIPOTLE: Sued for Misstating Chorizo Burrito Nutritional Facts --------------------------------------------------------------- Theresa Seiger, writing for Cox Media Group, reports that three customers are suing Chipotle Mexican Grill, claiming that the Mexican fast-casual chain is misstating the number of calories in its dishes, providing as evidence the restaurant chain's 300- calorie chorizo burrito. One of the plaintiffs in the proposed class-action lawsuit said he realized that the burrito "couldn't have been just 300 calories" after he became "excessively full" from his meal, according to the City News Service. On its website, Chipotle lists its flour tortilla alone as having 300 calories. However, a board advertising the new chorizo burrito claimed that it contained only 300 calories. "By providing false nutritional information for their menu items, consumers are lulled into a false belief that the items they are eating are healthier than they really are," the suit claims. Chipotle apologized in a response on social media, writing that the chain is working to clarify its menu. The chorizo meat on its own is 300 calories, according to Chipotle. The lawsuit against the fast-casual chain was filed in Los Angeles Superior Court by three men who have bought chorizo burritos at different locations this month, the City News Service reported. It would cover anyone who has bought food at Chipotle in the four years leading up to the filing. The suit seeks unspecified damages and an injunction to prevent Chipotle from putting misleading nutritional facts on its menus. A representative for the company declined to comment on the lawsuit to Business Insider, citing its ongoing nature. Chipotle spokesman Chris Arnold told the news website that the company doesn't discuss details surrounding pending legal actions as a matter of policy. "I will note that we work very hard to maintain transparency as to what is in our food, including our practices for disclosing nutrition information," Mr. Arnold said. "I'd also note that a lawsuit is purely allegation and is proof of absolutely nothing." COCO'S RESTAURANTS: Sued in Cal. Over Failure to Pay Workers OT --------------------------------------------------------------- Michelle Wiederrick-Charaffeddine, individually and on behalf of all other similarly situated employees v. Coco's Restaurants, Inc., Catalina Restaurant Group, and Does 1 through 250, inclusive, Case No. BC644127 (Cal. Super. Ct., December 16, 2016), is brought against the Defendants for failure to pay overtime wages in violation of the California Labor Code. The Defendants own and operate a restaurant chain with locations all over California. The Plaintiff is represented by: Gary R. Carlin, Esq. Brent S. Buchsbaum, Esq. Laurel N. Haag, Esq. Ian M. Silvers, Esq. LAW OFFICES OF CARLIN & BUCHSBAUM LLP 555 East Ocean Boulevard, Suite 818 Long Beach, CA 90802 Telephone: (562) 432-8933 Facsimile: (562) 435-1656 E-mail: gary@carlinbuchsbaum.com brent@carlinbuchsbaum.com laurel@carlinbuchsbaum.com ian@carlinbuchsbaum.com COOK COUNTY, IL: Class Action Over Bail Bonds Ongoing ----------------------------------------------------- Sarah Lazare, writing for AlterNet, reports that for the nearly 8,000 people locked up in Cook County jail, and the 2,400 on house arrest, the presumption of innocence until proven guilty effectively does not exist. Roughly 95 percent of those incarcerated have not faced trial or conviction of any kind, the vast majority of them ensnared simply because they are unable to afford bond. Those forced to languish in indefinite detention are disproportionately African American, and their pretrial punishments can permanently set their lives off-course, causing them to lose jobs, custody of their children, their housing, and even their lives. Now, a group of formerly incarcerated people, movement lawyers and concerned community members in Chicago are seeking to intervene in this humanitarian crisis by pooling collective resources to free people from Cook County jail. Calling themselves the Chicago Community Bond Fund (CCBF), the all-volunteer group just announced it has freed 50 people from jail or house arrest, using a revolving fund. But the organization is not just aiming to buy the liberty of those locked up -- a transaction they acknowledge is chilling. Members want to change the system by organizing to eradicate monetary bond altogether and address the harms that Cook County inflicts on its own residents. "You are supposed to be innocent until proven guilty, but they treat everyone guilty until proven innocent," Tyler Smith, a 21-year-old Chicago resident bonded out by the CCBF in February, told AlterNet. Amid mounting nationwide concern about mass incarceration, the CCBF is advancing a strategy of harm reduction and resistance that appears to be catching fire, with related projects established in Massachusetts, New York, California, North Carolina and beyond. In a country that remains, by far, the biggest jailer in the world, organizers hope that similar bond funds can comprise one prong in a broad strategy to end the injustices perpetrated by prison and jail systems across the United States. "If we are really serious about the presumption of innocence, which is not a radical concept, then we need to take a critical look at cash bond and pretrial detention across the board," Max Suchan, a co-founder of CCBF, told AlterNet. "The solution is to end cash bond and eliminate pretrial detention." "My Life Was Ruined" While the monetary bond system remains, Mr. Smith said he is glad the CCBF exists. "It had a good impact," he said of the organization. "It brought me hope." Mr. Smith has been working since he was 15, and said he comes from a "single-parent household, with a mother who has been working hard since I was born." He described himself as "head of household" since he was 19. "My whole situation started on July 15, 2013, when I was accused of robbery," said Mr. Smith. Unable to pay $2,500 -- 10 percent of his $25,000 deposit bond -- he was forcibly subjected to electronic monitoring, a form of house arrest, in July 2016. Mr. Smith was working two jobs at the time, but lost both as a result of restrictions on his movement and invasive surveillance. He was living with his mother, who was unemployed, and says as a result of his incarceration the family was almost evicted from their home. "My life was ruined," said Mr. Smith. "There was nothing I could do." After being referred by his public defender, Mr. Smith was bonded out by the CCBF in February and has since become a vocal organizer against the injustices he endured, testifying at a November public hearing on the use of money bond in Cook County. He said that through the CCBF, he has gained important community he describes as "friends and family." He added that "after the situation, it's like the stress has been lifted from my mom." Yet Mr. Smith also said that his life has been unfairly derailed by what he has suffered so far. While his charges were dropped, Mr. Smith and his family have already faced staggering punishment, he notes. In light of this ordeal, he emphasized that it is important for those who have not experienced incarceration firsthand to "hear my voice and what I have to say." "To make things better in the justice system, they have to eliminate bond and house arrest," said Mr. Smith. For many, the harms inflicted during pretrial detention are irreversible. "Inability to pay bond results in higher rates of conviction, longer sentences, loss of housing and jobs, separation of families and lost custody of children," notes the CCBF in its first annual report. It is far more difficult for individuals to fight their cases while incarcerated, and after sitting in indefinite detention, many experience pressure to plead guilty. In Cook County alone, people arrested on "nonviolent" felonies who were unable to post bail were four times as likely to receive convictions as their counterparts who were able to avoid pretrial detention, according to research included in a class action lawsuit. Especially for those who already experience poverty or marginalization, even just a few days in jail can permanently disrupt jobs and family connections, a reality underscored by the Pretrial Justice Institute's "Three Days Count" campaign. Diomar, who was formerly incarcerated in Cook County jail, says it was only because he was bonded out by CCBF that he was able to "be free to see the birth of my daughter and support my family." "Bond is fundamentally unfair because it punishes poor people more -- and it's not just you that suffers, but also your entire family," he said in a press statement. "They lock you away from your kids, and that really sets the tone for the case and puts you at a disadvantage from the very beginning. You can't fight your case as well from a legal or emotional standpoint from the inside." Some do not survive their ordeals. According to a report by the Huffington Post, 815 people "died in jails and police lockups in the year following Sandra Bland's death on July 13, 2015." Their data shows that many of those who lost their lives were incarcerated because they were unable to meet bond requirements. The tally is a dramatic undercount, as it does not include people who die following release due to incarcerated-related causes. The long-term impacts of jailing are tragically illustrated by the case of Kalief Browder, who in 2010 was arrested at the age of 16 and spent more than 1,000 days locked up at Rikers Island waiting for a trial that never happened. He was forced to remain incarcerated because his family could not afford to post bail. During this time he endured roughly two years in solitary confinement, as well as a violent assault by an officer. Following his release, Browder committed suicide in 2015. "He tried to lead a normal life but after being beaten, starved, being in solitary confinement for so long, that would take a toll on a grown man, let alone a child," Venida Browder, Kalief's mother, told the New York Daily News six months after her son's death. She died just over a year after her son took his life. "No More Business-as-Usual" Pretrial detention, like that which Ms. Browder was forced to endure, is a key driver of soaring jail populations across the United States. According to a report released in February 2015 by the Vera Institute, annual admissions to jails jumped from 6 million in 1983 to 11.7 million in 2013. Meanwhile, those incarcerated in jails are languishing longer, with the average stay climbing from 14 to 23 days over the past 30 years. People of color are disproportionately impacted by these trends. The Vera Institute finds that African Americans, who make up just 13 percent of the US population, are jailed at four times the rate of their white counterparts. As in Cook County, the vast majority of people locked up in jails across the country have not been convicted of any crime and are ostensibly assumed innocent. The Department of Justice estimated in 2014 that, at any given time, roughly 450,000 people are incarcerated in jails awaiting trial, amounting to two-thirds of the jail population. A special report from the Bureau of Justice Statistics, released in 2007, shows that five out of six of those locked up "had bail set with financial conditions required for release that were not met." According to the Vera report, three- fifths of all people locked up in jail are "awaiting trial or resolution of their cases through through plea negotiation, and simply too poor to post even low bail." The spike in jail populations nationwide tracks directly with increased reliance on ever-more-expensive bail. In a 2012 report, the Justice Policy Institute notes that, "From 1992 to 2006, the use of financial release, primarily through commercial bonds, increased by 32 percent." Meanwhile, the report observes that average bail amounts have increased "by over $30,000 between 1992 and 2006." Bail itself reflects the racism of the broader prison-industrial complex. According to figures released by the Pretrial Justice Institute in 2015, African American men face 35 percent higher bonds than white men nationwide. Meanwhile, monetary bail systems by definition discriminate against those members of society who are least able to pay, in a society with profound class disparities along race lines. The Pew Research Center determined in 2014 that the current wealth gap between white and black people in the United States is at its highest point since 1989, with white homes possessing 13 times the median wealth of their black counterparts in 2013. Even the Department of Justice submitted a friend-of-the-court brief in August arguing that incarcerating people because they are unable to pay bail violates the US constitution. Yet despite the public airing of concerns, the system continues unabated, with rare exceptions. In contrast to most state and local jurisdictions in the United States, Washington DC releases roughly 90 percent of people held overnight, without requiring monetary bail. Peter Goldberg, executive director of the Brooklyn Bail Fund, told AlterNet over the phone, "The goal of a bond fund is certainly not to prop up an unfair system with money, but to disrupt and change it. In addition to the obvious harm reduction that a fund can provide by getting people out of jail, we work in tandem with others in the movement to abolish cash bail. Funds must bring to light the experiences of individuals, allow them to have voice in what reform looks like. No more business-as-usual." "There Hasn't Been a Change" In light of these injustices, Chicago-area activists and lawyers are organizing a coordinated fightback. Currently and formerly incarcerated people filed a class-action lawsuit against Cook County officials in October, in partnership with the CCBF and lawyers' groups, including the Roderick and Solange MacArthur Justice Center. "Every day, thousands of human beings in Cook County, each presumed innocent as a matter of law, remain in jail for the duration of their case simply because they cannot afford to pay a monetary amount set without relation to their ability to pay," states the complaint, which was emailed to AlterNet. "The large and disproportionate majority of these persons are African Americans." According to 2011-2013 data from the Clerk of the Circuit Court of County, analyzed by the MacArthur Justice Center, these disparities are stark. For example, only 15.8 percent of African Americans charged with Class 4 felonies were released on bond before their trials, as compared to 32.4% of non-African American defendants. Cook County Sheriff Thomas Dart, who is named as a defendant in the lawsuit, has stated publicly he believes the money bail system is unfair. Cara Smith, chief policy officer for Dart, told AlterNet that the sheriff "has been lobbying to eliminate cash bond in Illinois." But campaigners say they are exasperated by the endless talk about the problems while the policies remain the same. "The reason Sheriff Dart is named in the lawsuit is because his office is incarcerating these people after the bond is set," Alexa Van Brunt of MacArthur Justice Center told AlterNet. "He is the custodian of the people who are being held based on these judicial bail orders, which we believe are unconstitutional. There has been a lot of discussion about the problem of cash bail in Cook County. It's an issue that has been on everyone's radar for some time. But there hasn't been a change." Building a Movement While the monetary system persists, people across the country are taking direct action to remove people from its clutches. "We're first and foremost interested in keeping clients out of jail," Brett Davidson, the director of the Connecticut Bail Fund, told AlterNet over the phone. "It's ridiculous that we're even able to buy people's freedom, that money is the thing standing between people and jail." The CCBF, which combines harm reduction with social movement support, emerged from a call to address grave injustices committed by the Chicago Police Department. In August 2014, police killed two black men, one of whom was 17-year-old Desean Pittman. When Pittman's friends and family held a community vigil shortly following the killing, they were attacked by police who "ripped down memorial photos and tipped over candles," said Suchan. After the incident was over, five people were charged with felonies, including Pittman's mother, and four could not afford bond. Just back from Ferguson, Suchan says he "made contact with family members who were doing their own fundraising. Ultimately we had to raise around $30,000 to get everyone out of jail. It took four months. We were doing fish fries and game nights, as well as crowdfunding online campaigns." That effort launched conversations about what it would look like to create a more sustainable fund. "We decided to form this group so that we could reach out to those who couldn't help themselves, and we are very proud of what we're doing," co-founder Jeanette Wince said at a launch party in November 2015. Since the launch, the organization says it has posted "over $278,000 in bonds ranging from $500 to $50,000, spending the vast majority of this sum on felony bonds." Not a single bond has been forfeited, and many of those released have since become active with the organization. To this day, CCBF martials resources to support individuals, as well as the Black Lives Matter movement, with roughly a quarter of the people bonded out engaged in a political action at the time of their arrest. Support of people doing activist work "directly advances our mission of supporting movements seeking systemic change in Chicago," the group says in their annual report. "Bond funds are a really important, humanizing tool, but they are really only a way forward if they are connected and accountable to larger movements for justice and decarceration," Sharlyn Grace, CCBF co- founder, told AlterNet. James Kilgore, author of the book Understanding Mass Incarceration, told AlterNet that bail funds "raise the issue of the injustice of bail and put the issue of abolishing cash bail onto the agenda. That is an important step in decarceration." However, individuals don't have to have ties to such social movements to be deemed worthy of support. The CCBF has developed detailed criteria that weighs factors including "inability to pay," "risk of victimization in jail" and "special health needs." "Many times, when there are public conversations about bail reform, they move forward by dividing people into categories of worthy and unworthy," Ms. Grace emphasized. "We're not a guilt or innocence-based organization. We think of everyone as being harmed in the jail. We are not going to say we are only bailing out people who face 'nonviolent' charges or drug charges. Fundamentally, keeping people in cages is not how we want to respond to harm in our communities." CORMEDIX: New Jersey Court Dismisses Securities Class Action ------------------------------------------------------------ CorMedix Inc., a biopharmaceutical company focused on developing and commercializing therapeutic products for the prevention and treatment of infectious and inflammatory diseases, on Dec. 21 disclosed that, as previously reported, in an order dated October 27, 2016 the United States District Court for the District of New Jersey granted the Company's motion to dismiss with prejudice the plaintiffs' Amended Complaint in the case Li v. CorMedix Inc., et al. (Case 3:15-cv-05264), a putative securities class action filed July 7, 2015, against the Company and certain of its then current and former officers. On December 16, 2016, the parties filed a stipulation with the Court in which the plaintiffs and their counsel agreed not to appeal, move for reconsideration, or otherwise challenge the October 27, 2016 Order. No settlement payment was made in exchange for the stipulation. "We are pleased that the District Court agreed with our view of the insufficiency of the plaintiffs' claims," stated Khoso Baluch, Chief Executive Officer of CorMedix. "With the plaintiff's agreement not to appeal the order dismissing the Amended Complaint, we can put this lawsuit firmly behind us." COUNTY DISPOSAL: Disgruntled Customers Mull Class Action -------------------------------------------------------- Hayley Mason, writing for WSMV, reports that for people looking for a service in Middle Tennessee, from a moving company to trash pickup, the Better Business Bureau has ratings to help them make a decision. In 2016 they have put two of their worst-rated businesses on a "naughty list" based partially on their history of customer complaints and unresponsiveness. The first business was County Disposal out of Murfreesboro. Channel 4 previously reported the company had not picked up trash in many neighborhoods for weeks, but still took automatic payments from its customers' bank accounts. "If you have disposal service, you know that you have to pay in advance and it's usually done with an automatic bank draft," said Kathleen Calligan, president and CEO of the Better Business Bureau of Middle Tennessee. "Many of those homeowners are still being hit and no service is being rendered." On Dec. 26, former customers in Murfreesboro said they stopped using the company but never got their money back, despite the company's owner vowing to refund customers. "We had trash sit out here for days and days and days on end," said Nicole Cole who lives in La Vergne. The company sent letters to its customers. Customers said Gray's Disposal was tapped as a replacement company to finish the job for County Disposal, who said it was having problems with equipment and staffing. Customers say instead of a replacement service, they were also sent additional bills from Gray's. "I'm not paying it," Ms. Cole said. "I already paid County." Cole said she now has her son pick up the trash and take it to a local dumpster. "I just lost out on $52 for three months. I just didn't want to deal with it," Ms. Cole said. Disgruntled customers of County Disposal created a website to complain about the family-owned company and to organize a class- action lawsuit. At least one person told Channel 4 off-camera his service has been fine, but many customers say they paid a three-month payment for service through December and the company did not come. Another company on the BBB's "naughty list" is Agristyle Farm Apparel, an online retailer. The BBB says they've received complaints from people who say the company never delivered items they ordered or never refunded their cards. The BBB says after several attempts to contact the company in December, they still haven't heard back. The BBB says the company advertises as farm-based, but is located in Nashville. When Channel 4 tried to find the company, different address listings led us to private apartments in Nashville. Calls and emails were not returned. Channel 4 also reached out to the owner of County Disposal for response about the rating and additional billings. Calls were not returned. DDC CONSTRUCTION: Court Rules on Class Action Waivers Issue ----------------------------------------------------------- Cheryl D. Shoun, Esq. -- cshoun@nexsenpruet.com -- and William Chase McNair, Esq. -- cmcnair@nexsenpruet.com -- of Nexsen Pruet, in an article for Lexology, report that the South Carolina Court of Appeals has offered insight into its opinion on the issue of whether a developer may contractually create and enforce jury trial and class action waivers in a master deed. The Court's position is good news for developers and those who represent them.[i] In The Gates at Williams-Brice Condominium Association and Katharine Swinson, individually, and on behalf of all other similarly situated v. DDC Construction, et al, 2016 WL 4537655, the Court specifically examined whether jury trial and class action waivers included in a master deed are enforceable. The Court, reversing the circuit court, found the waivers enforceable. A number of entities (collectively, "Developer") developed The Gates at Williams-Brice condominium community ("Gates"). Following the filling of a lawsuit by Katharine Swinson ("Swinson") individually, and on behalf of others similarly situated, and the Gates at Williams-Brice Condominium Association ("Homeowners"), alleging faulty workmanship during construction. Developer, electing not to attempt to enforce the contractual arbitration provision, moved for a nonjury trial and to strike the class action allegations. The circuit court denied those motions. Developer appealed and the Court of Appeals reversed. The Court of Appeals focused on four pivotal issues: (1) timeliness of Developer in raising mode of trial issue; (2) ineffectiveness of subsequent amendment of Master Deed; (3) enforceability of waivers and (4) whether Developer's choice not to pursue arbitration equated to a waiver of a nonjury trial. In analyzing the timeliness of Developer's motion for a nonjury trial and to strike a jury trial demand and class action allegations, the Court recognized the requirement that a party must timely raise mode of trial issues at the first opportunity. Foggie v. CSX Transportation, Inc., 315 S.C. 17, 431 S.E.2d 587 (1993). The requirement is to place an opposing party on notice of the issues at stake. See Shirley's Iron Works, Inc. v City of Union, 403 S.C. 560, 573-74, 743 S.E.2d 778, 785 (2013). In examining Foggie and related cases, the Court concluded, however, that the first opportunity requirement deals with preserving a mode of trial issue for appellate consideration, rather than raising the issue to the circuit court for consideration. Thus, the Court concluded that Developer met the first opportunity requirement by timely appealing the circuit court's order denying its request for a nonjury trial. The Court further noted that there were general denials related to the class action allegations and the jury trial demand included in the answers of various defendants in the action.[ii] The next issue examined by the Court was the Homeowners' amendment of the Master Deed to eliminate the wavier of a jury trial and of a class action. This amendment was done more than six months after the filing of the original complaint. Having determined that the owners knowingly, voluntarily and intelligently waived their rights to a jury trial and to a class action, the Court found that the amendments could not apply retroactively to remove the otherwise agreed upon waivers; such amendment would effectively substitute a new obligation for the original bargain of the parties. See generally Armstrong v. Ledges Homeowners Ass'n, 633 S.E. 2d 78, 87 (N.C. 2006). The Court, unaware of any South Carolina authority which would allow contracting parties to unilaterally alter agreed upon provisions once litigation has begun, concluded that permitting such an amendment is against the weight of authority. See Ellis v. Taylor, 316 S.C. 245, 449 S.E.2d 487, 488 (1994) ("The court's duty is to enforce the contract made by the parties regardless of its wisdom or folly, apparent unreasonableness, or the parties' failure to guard their rights carefully.") As to the third issue addressed by the Court, South Carolina has long recognized that the right to a jury trial may be waived by contract. See North Charleston Joint Venture v. Kitchens of Island Fudge Shoppe, Inc., et al, citing, Leasing Serv. Corp. v. Crane 804 F.2d 828 (4th Cir. 1986). When a person signs a document, he is responsible for using reasonable care to protect himself by reading the document, making sure of its contents. Regions Bank v. Schmauch, 354 S.C. 648, 582 S.E.2d 432 (Ct. App. 2003). Here, the terms of the Master Deed, including the waiver of a jury trial and of a class action, were expressly incorporated into each purchase contract. By signing the contract at closing, each homeowner was deemed to have read the Master Deed. Additionally, the Master Deed was also incorporated into the bylaws of the Homeowners' Association, which were available to all who purchased units. The waivers, in all bold capital letters on the last page of the Master Deed, were conspicuous and unambiguous. The waivers did not limit liability or the right to seek legal remedy; rather, the owners and Developer waived their rights to a jury trial and class action lawsuit. Even if the owners were unaware of the inclusion of the waiver provisions, they cannot avoid the effects of the waivers merely by arguing they were unaware that the provisions were included in the Master Deed absent a showing that the waivers are oppressive and one-sided. Lastly, the Court found that the Developer did not waive its right to a nonjury trial and to proceed without a class simply because it did not elect to arbitrate. The circuit court pointed to various actions by Developer in support of its conclusion that Developer waived its right to arbitrate and, consequently, its rights to a nonjury trial and to proceed without a class. On review, the Court found, however, that Developer's decision to request a nonjury trial is wholly unrelated to its decision not to arbitrate. In reaching its conclusion, the Court again relied upon the Master Deed, in which the Developer included language addressing both alternative dispute resolution and the jury trial waiver, finding that such inclusion was intended to afford the opportunity to either arbitrate or seek a nonjury trial. While at the time of this writing, a Motion for Rehearing is still pending, this opinion demonstrates the Court's inclination to enforce jury trial and class action waivers included in a master deed. That said, there appears to be no harm in the inclusion of clear, conspicuous and obvious waivers at this time, even if the Court's opinion is eventually modified. [i] A Motion for Rehearing is currently pending. Until such time as there is a disposition as to that Motion, this opinion is not established law. [ii] The Court also relied upon the Homeowner's subsequent amendment of the Master Deed in support of its conclusion that the Homeowners were on notice of the mode of trial issue following the receipt of one defendant's answer. DIRECT DIGITAL: Has Made Unsolicited Calls, Action Claims --------------------------------------------------------- Gloria Whittington, individually and on behalf of all others similarly situated v. Direct Digital, LLC, and Does 1 through 10, inclusive, and each of them, Case No. 2:16-at-01516 (E.D. Cal., December 20, 2016), seeks to stop the Defendants' practice of using an artificial and prerecorded voice to deliver a message without prior express consent of the called party. Direct Digital, LLC is a retailer of nutritional supplement brands. The Plaintiff is represented by: Todd M. Friedman, Esq. Adrian R. Bacon, Esq. Meghan E. George, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Telephone: (877) 206-4741 Facsimile: (866) 633-0228 E-mail: tfriedman@toddflaw.com abacon@toddflaw.com mgeorge@toddflaw.com DOORKING INC: Faces "Vela" Suit Over Failure to Pay Overtime ------------------------------------------------------------ Ernesto Vela, on behalf of himself and all others similarly situated v. Doorking Inc., and Does 1 through 100, Inclusive, Case No. BC644377 (Cal. Super. Ct., December 20, 2016), is brought against the Defendants for failure to pay overtime wages in violation of the California Labor Code. Doorking Inc. is a manufacturer of vehicular gate operators, telephone entry and intercom systems, access control systems, parking control equipment, and related accessories. The Plaintiff is represented by: Michael Nourmand, Esq. James A. De Sario, Esq. THE NOURMAND LAW FIRM, APC 8822 West Olympic Boulevard Beverly Hills, CA 90211 Telephone: (310) 553-3600 Facsimile (310) 553-3603 DUPONT: Jury Rules in Favor of Plaintiff in C8 Class Action ----------------------------------------------------------- Jess Mancini, writing for News and Sentinel, reports that a federal jury on Dec. 21 in Columbus returned a $2 million verdict against DuPont in a C8 contamination case. The jury awarded damages to Kenneth Robert Vigneron, who claimed he contracted testicular cancer from exposure from C8 in the Belpre and Little Hocking water supplies. Mr. Vigneron is considered a bellwether case among the 3,500 lawsuits in the C8 class against DuPont. Other bellwether cases that have gone to trial have resulted in verdicts against the company. C8 was once used at the DuPont Washington Works to make Teflon. A science panel established by a settlement with the company found a probable link between C8, also known as PFOA, and kidney cancer, testicular cancer, ulcerative colitis, thyroid disease, pregnancy induced hypertension including preeclampsia and hypercholesterolemia in humans. The Dec. 21 verdict included a finding that the company's conduct was malicious, which allows the jury to consider punitive damages in addition to the compensation verdict, said Harry Deitzler, an attorney representing the plaintiffs in the class action settlement with DuPont 11 years ago. The jury will deliberate punitive damages on Jan. 4. "DuPont's conduct was egregious, dumping the chemical into community water sources with full knowledge that it would likely cause cancer and other diseases among the residents," said Mr. Deitzler, an attorney with Hill, Peterson, Carper, Bee & Deitzler in Charleston. "Hopefully this verdict, along with the previous two verdicts, will send a strong message to DuPont and others who intentionally engage in conduct which puts the health of our community at risk." A statement was released by Chemours, which owns the Washington Works through a spin-off from DuPont, through spokeswoman Cynthia Salitsky. "Additional trials are expected, and they will be defended on an individual basis under the facts and circumstances of each case. This type of litigation typically takes place over many years, and interim results do not predict the final outcome of cases," Ms. Salitsky said. "It is important to note that DuPont is the named defendant in each of the cases and is liable for any judgment. We will have further comments when the trial is over." The case is before Judge Edmund A. Sargus Jr. of the United States District for the Southern District of Ohio. A bellwhether case is used to ascertain outcomes in other cases in the class action and work toward resolution. The first bellwhether case by Carla Marie Bartlett in 2015 resulted in a $1.6 million award against DuPont. The second, a case from David Freeman, resulted in a $5.1 million damage award and $500,000 in punitive damages against DuPont. The company settled two other two bellwhether cases while trial for the Larry Moody case is scheduled in January. Harold Bock, an adviser for Keep Your Promises DuPont, a group committed to ensuring DuPont continues to cover the C8 liabilities, said the Dec. 21 verdict "vindicates all of us who have been fighting for over a decade for DuPont to do the right thing." "For thousands of people in the valley, it is too late for DuPont to undo the damage they caused over half a century of pollution," Mr. Bock said. "What DuPont can do is take responsibility and fulfill the promises they made to us over a decade ago. The verdict is a step in the right direction." After the class action settlement 11 years ago, DuPont said it wanted an answer to the C8 toxicity question based on science, Mr. Deitzler said. "But when the truth was exposed, DuPont reversed its course," he said. "Over the past six weeks of trial, DuPont has paid its lawyers to say that the scientifically irrefutable conclusion as to C8's toxicity is mistaken." Company lawyers attempted to convince the jurors officers at DuPont had no clue the community and employees were being poisoned and DuPont did everything that it could do to prevent human exposure, Mr. Deitzler said. "The deception did not work," Mr. Deitzler said. "Everyone could easily see that DuPont made virtually no effort to address the C8 poison danger until after we filed the class action lawsuit in 2001." Hill, Peterson, Carper, Bee & Deitzler, Taft Stettinius and Hollister of Cincinnati and Winter, Johnson and Hill of Charleston filed the 2001 class action lawsuit which enabled all affected residents to seek compensation for their injuries. In the Vigneron case the three original firms were joined by the law firms of Levin Papantonio of Pensacola, Fla., Douglas & London of New York City and and Kennedy & Madonna of Hurley, N.Y. As part of the first settlement, DuPont agreed to install carbon filtration systems in six local public water systems. The Environmental Protection Agency in 2016 dropped the long-term limit for C8 exposure and Chemours installed a filter system in Vienna where the concentration exceeded the new limit, .07 parts per billion. While the concentration in Parkersburg was .029 ppb in September, Mr. Deitzler believes the city must eventually address C8 contamination in the drinking water. The state of Vermont permanently set the C8 drinking water standard at 0.02 ppb, Mr. Deitzler said. Companies may be reluctant to move to an area where there is a question over safe water, he said. EARTHSTONE ENERGY: Potential Securities Claims Investigated ----------------------------------------------------------- Andrews & Springer LLC, a boutique securities class action law firm focused on representing shareholders nationwide, is investigating potential breach of fiduciary duty and securities violation claims against Earthstone Energy, Inc. ("Earthstone Energy" or the "Company"). If you currently own shares of Earthstone Energy and want to receive additional information and protect your investments free of charge, please visit us at http://www.andrewsspringer.com/cases-investigations/earthstone- energy-class-action-investigation/ or contact Craig J. Springer, Esq. at cspringer@andrewsspringer.com, or call toll free at 1-800- 423-6013. You may also follow us on LinkedIn - www.linkedin.com/company/andrews-&-springer-llc, Twitter - www.twitter.com/AndrewsSpringer or Facebook - www.facebook.com/AndrewsSpringer for future updates. Andrews & Springer is a boutique securities class action law firm representing shareholders nationwide who are victims of securities fraud, breaches of fiduciary duty or corporate misconduct. Having formerly defended some of the largest financial institutions in the world, our founding members use their valuable knowledge, experience, and superior skill for the sole purpose of achieving positive results for investors. These traits are the hallmarks of our innovative approach to each case our Firm decides to prosecute. For more information please visit our website at www.andrewsspringer.com. EAST POINT, GA: Class Action Claims Power Overbilling of $34MM -------------------------------------------------------------- Adam Murphy, writing for CBS46, reports that outraged residents in the city of East Point filed a class-action lawsuit accusing their local government of putting profits over people. Melvin Pittman said enough is enough. He's one of many East Point residents who believe the city is overcharging customers for basic power. "My main focus right now is the overbilling of $34 million," Mr. Pittman said. "I don't think it's responsible government at all. It's like putting your hands in my pocket and telling me not to slap your hands." CBS46 first exposed the issue in February. Since then, Mr. Pittman and others have filed a class-action lawsuit against the city. Jimmy Hurt is their attorney. "The city's response was they're allowed to make a profit on their electrical billing; however, that is not written into their charter," Mr. Hurt said. Mr. Hurt said the city has collected millions of dollars from overbilling during the past decade and placed the money in the general fund. "It is wrong and it's shameful for you to have overbilled East Point power customers to include churches, businesses and residences to the tune of $34 million," Mr. Pittman said. The city responded to Pittman's legal team saying their actions are justified, but Hurt says they've imposed an illegal tax. "It's just an illegal action taken by city council. If they had passed the ordinance in the proper manner then they would be able to bill these charges," Mr. Hurt said. The city of East Point has defended their actions from the beginning saying they've done nothing wrong. The legal case is expected to pick up steam in January. ENDO INTERNATIONAL: Lundin Law Firm Reminds of Jan. 6 Deadline -------------------------------------------------------------- Lundin Law PC, a shareholder rights firm, announces a class action lawsuit against Endo International plc concerning possible violations of federal securities laws between September 28, 2015 and November 2, 2016 inclusive. Investors, who purchased or otherwise acquired shares during the Class Period, are encouraged to contact the firm in advance of the January 6, 2017 lead plaintiff motion deadline. To participate in this class action lawsuit, click here. You can also call Brian Lundin, Esquire, of Lundin Law PC, at 888-713- 1033, or e-mail him at -- brian@lundinlawpc.com -- No class has been certified in the above action. Until a class is certified, you are not considered represented by an attorney. You may also choose to do nothing and be an absent class member. According to the Complaint, Endo made false and/or misleading statements and/or failed to disclose that: the Company's subsidiary, Par Pharmaceutical, colluded with several of its industry peers to fix generic drug prices; that the foregoing conduct constituted a violation of federal antitrust laws; that Endo's revenues during the Class Period were partially the result of illegal conduct; and that as a result of the above, the Company's public statements were materially false and misleading at all relevant times. On November 3, 2016, Bloomberg News reported that the Justice Department is conducting an antitrust investigation of over a dozen companies, including Par Pharmaceutical, to determine whether they unlawfully colluded with each other to fix generic drug prices. Lundin Law PC was founded by Brian Lundin, a securities litigator based in Los Angeles dedicated to upholding the rights of shareholders. EVERBANK FINANCIAL: Settles Securities Lawsuit For $300,000 ----------------------------------------------------------- Kerry Goff at Florida Record reports that EverBank Financial Corp. has settled a lawsuit over alleged securities-law violations. Market Exclusive's website said that two alleged stockholders of EverBank filed putative class actions against the bank and members of its board of directors. "(They alleged) that the defendants violated federal securities laws by disseminating proxy materials that included allegedly material misstatements or omissions in connection with EverBank's Definitive Proxy Statement," the article said. According to court documents, the suits were filed in Florida and in Delaware. "On October 12, 2016, another alleged stockholder of EverBank filed a putative class action in the Delaware Court of Chancery alleging breaches of fiduciary duty against the same defendants, including alleged disclosure violations, in connection with the Merger Agreement," the Market Exclusive article said. "These actions, among other things, sought additional disclosure of facts relating to the proposed merger in connection with the stockholder vote thereupon and/or injunctive relief." According to the article, EverBank filed supplemental disclosures on Oct. 24 intended to address the plaintiffs' disclosure claims via Form 8-K with the SEC. "These supplemental disclosures pertained to, among other things, the non-disclosure agreements entered into by EverBank with other parties, EverBank management's communications with TIAA regarding management's potential continuing employment with the Company following the consummation of the proposed merger, and EverBank's projected dividends/capital injections as used in the Dividends Discount Analysis prepared by EverBank's financial advisor in connection with the proposed merger," the article said. Furthermore, in a Nov. 2 ruling, the Court of Chancery dismissed the Delaware action as moot and rejected claims asserted by the plaintiff in the Delaware case, but the Florida case was settled before it went to trial. Everbank settled for $300,000. The corporation declined to comment on why it settled the Florida case. "This fee will be paid by EverBank, and has not been approved or ruled upon by the courts in either the Delaware Action or the Florida Actions," the article said. On Oct. 24, EverBank filed an 8-K form, designating "Other Event," which is labeled under section 8, item 8.01. "The registrant can use [Other Event] to report events that are not specifically called for by Form 8-K, that the registrant considers to be of importance to security holders," the U.S. Securities and Exchange Commission said on its website. According to the SEC website, the 8-K form is the "current report" companies must file with the SEC to announce major events that shareholders should know about. FEDERATION OF MULTICULTURAL: Fails to Pay Employees OT, Suit Says ----------------------------------------------------------------- Patricia Hillard, on behalf of herself and all others similarly situated v. Federation of Multicultural Programs, Inc., Case No. 522444/2016 (N.Y. Sup. Ct., December 16, 2016), is brought against the Defendants for failure to pay all workers overtime, and of time and one-half their regular rate of pay for all hours worked over 40 in a week. Federation of Multicultural Programs, Inc. is a Brooklyn, New York based intermediate care facility for the mentally retarded. The Plaintiff is represented by: Louis Ginsberg, Esq. THE LAW FIRM OF LOUIIS GINSBERG, PC 1613 Northern Boulevard Roslyn, NY 11576 Telephone: (516)625-0105 FENTON & MCGARVEY: Class of Consumers Certified in "Long" Suit -------------------------------------------------------------- The Hon. Larry J. McKinney grants the Plaintiff's amended motion to certify class in the lawsuit entitled JANET LONG, individually and on behalf of all others similarly situated v. FENTON & McGARVEY LAW FIRM P.S.C., a Kentucky corporation, and JEFFERSON CAPITAL SYSTEMS, LLC, a Georgia limited liability company, Case No. 1:15-cv-01924-LJM-DML (S.D. Ind.). The Court certified the class defined as: All persons similarly situated in the State of Indiana from whom Defendants attempted to collect a delinquent consumer debt allegedly owed for a Comenity Bank credit card account, via the same form collection letter that Defendants sent to Plaintiff from one year before the date of the Complaint to the present. The lawsuit alleges violations of the Federal Debt Collection Practices Act. In her Amended Motion, Ms. Long sought to demonstrate that all of the pre-requisites for class certification pursuant to Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure are satisfied. The Defendants opposed the Plaintiff's Amended Motion by asserting that (1) the Plaintiff lacks standing to have commonality with the claims of the putative class members, and (2) the putative class members' individual claims predominate over any common claims of the class. A copy of the Order is available at no charge at https://goo.gl/Ctxmq7 from Leagle.com. The Plaintiff is represented by: Angie K. Robertson, Esq. Mary E. Philipps, Esq. David J. Philipps, Esq. PHILIPPS & PHILIPPS, LTD. 9760 S. Roberts Road, Suite One Palos Hills, IL 60465 Telephone: (708) 974-2900 Facsimile: (708) 974-2907 E-mail: angiekrobertson@aol.com mephilipps@aol.com davephilipps@aol.com - and - John Thomas Steinkamp, Esq. JOHN T. STEINKAMP AND ASSOCIATES 5214 S. East Street, Suite D-1 Indianapolis, IN 46227 Telephone: (317) 780-8300 Facsimile: (317) 217-1320 E-mail: steinkamplaw@yahoo.com The Defendants are represented by: David M. Schultz, Esq. James Constantine Vlahakis, Esq. Jennifer Jay Kalas, Esq. HINSHAW & CULBERTSON, LLP 222 North LaSalle Street, Suite 300 Chicago, IL 60601-1081 Telephone: (312) 704-3527 Facsimile: (312) 704-3001 E-mail: dschultz@hinshawlaw.com jvlahakis@hinshawlaw.com jkalas@hinshawlaw.com Defendant JEFFERSON CAPITAL SYSTEMS, LLC, is represented by: Michael D. Slodov, Esq. SESSIONS, FISHMAN, NATHAN & ISRAEL, LLC 15 E. Summit St. Chagrin Falls, OH 44022 Telephone: (440) 318-1073 Facsimile: (216) 359-0049 E-mail: mslodov@sessions-law.biz FIELDTURF USA: Bathgate Wegener & Wolf Firm Files Class Action -------------------------------------------------------------- Phil Stilton, writing for Shore News Network, reports that the Ocean County law firm of Bathgate, Wegener & Wolf, P.C. has joined forces with with national class action specialist Kozyak, Tropin & Throckmorton, P.A., of Coral Gables, Florida, to file the first federal class action lawsuit in the United States against FieldTurf USA and its affiliates. FieldTurf USA has come under fire across New Jersey after fields it promised would last 10 years began breaking down much sooner than the company guaranteed. In the company's advertising, they claimed, "Making the wrong turf decision can cost you a million dollars.", but instead, their customers such as Carteret claim the fields will end up costing more to repair and replace. The lawsuit claims Early on, however, FieldTurf internally knew that its marketing campaign was grossly exaggerated. "Rather than adjust its campaign strategy to reflect this reality or simply warn existing and new customers about the defective nature of the Synthetic Grass Fields, FieldTurf chose to maximize profits and maintain its leading market share," the suit claims. Lawyers said a leaked internal email from FieldTurf executive Kenny Gilman revealed that in 2007, FieldTurf knew its marketing campaign for the affected Synthetic Grass Fields was "ridiculous" and opened up the company "to tons of exposure from a legal standpoint." The class action suit seeks over $5,000,000 in damages at the hands of FieldTurf and claims to have over 100 affected customers. One of the earliest complaints about premature disintegration came in October 2006 after FieldTurf installed the new Synthetic Grass Field in a South American country. Laura Braga, FieldTurf's operation director for FieldTurf Latin America, emailed Gilman, explaining that an artificial turf field using the old slim-fit fiber that was installed in 2003 was in better condition than the Synthetic Grass Field that was installed within the year. The new Synthetic Grass Field was displaying significant "premature wear." FieldTurf executives discussed the failures, but continued to keep the information from their customers according to the legal filing. "Like other municipalities, school districts and public and private entities throughout the United States, Carteret purchased six synthetic grass fields from FieldTurf, which were marketed under brand names "FieldTurf," "Duraspine" and "Prestige," in reliance on FieldTurf's representations," the firm said. "Carteret contends in the class action lawsuit that the fields are defective because the fibers that make up the fields deteriorate prematurely, sometimes in as little as two years, in stark contrast to the 10 year life expectancy represented by FieldTurf. Carteret asserts that FieldTurf knew through field inspections and independent testing that the fields would deteriorate much sooner than FieldTurf had represented to potential customers. Instead of advising their customers of these problems, FieldTurf chose to maximize profits by increasing the intensity of its marketing campaign designed around the false information." Carteret seeks immediate relief requiring FieldTurf to repair and replace the synthetic grass fields and to pay damages. Immediate relief is necessary and appropriate because of the risk of injury to those using the deteriorating fields. The suit was filed in the U.S. District Court, New Jersey on December 14th. FLORIDA: Voting Rights of 1.5MM Felons May Be Restored ------------------------------------------------------ Tanasia Kenney, writing for Atlanta Black Star, reports that of the 1.5 million Florida residents barred from voting due to a prior felony conviction, almost a quarter are African-American. But, a newly proposed referendum seeking to repeal the state's felony voting restriction could restore those rights. After advocates spent a number of years gathering the required 68,314 petition signatures, the Florida Supreme Court on Dec. 26 announced that it would consider a proposal allowing a referendum on the 2018 ballot asking state voters to roll back Florida's felony voting restriction law, the Intercept reported. The court is expected to review the proposal on March 7. According to nonpartisan website Ballotpedia, the Florida Voting Rights Restoration for Felons Initiative of 2018 would essentially restore voting rights to individuals with felony convictions upon completion of their sentences. It would not, however, reinstate voting rights to persons convicted of murder or a sexual felony offense. Desmond Meade, an ex-felon and the chairman of the Floridians for a Fair Democracy, the group spearheading the effort to repeal the state's felony disenfranchisement statute, has spent years collecting signatures for the ballot initiative and said he's optimistic about the high court's decision to consider the group's proposal. "To the best of my recollection, never before has a purely grassroots effort gotten as far as triggering a [Florida] Supreme Court review," Mr. Meade said. "This is a major milestone." The odds of a favorable ruling by the court are that much higher after the Florida Division of Elections reportedly filed a motion supporting the proposed ballot initiative, Florida's WMFE news radio station reported. It's a known fact that a large majority of the Sunshine State's disenfranchised voters are Democratic minorities and advocates for the restored voting rights of felons have argued that the disproportion is a civil rights disaster that may very well have impacted the outcome of key elections, like the George W. Bush vs. Al Gore presidential race of 2000. Those voters also could have affected Trump's victory in the key swing state in last year's contentious presidential election. He won Florida by a margin less than a tenth the size of the state's disenfranchised population, according to The Intercept. The Florida Supreme Court's decision to review the group's proposed referendum is good news, however, the campaign's next steps include gathering another 600,000 petition signatures -- nearly 10 times the initial amount -- in order to move forward. Now, Meade is working to quickly expand interest in the pressing issue in order to get enough people on board in time. "We weren't getting funding or anything, so it took more time," Mr. Meade said of the campaign. "But we'll need 10 times as many people now." Efforts to restore the voting rights of felons have been successful in other states this past year. In April, Virginia Gov. Terry McAuliffe signed an executive order reinstating the voting rights of millions of felons who had permanently been disenfranchised due to their previous convictions. States like Louisiana, however, are still struggling to make progress, as 700,000 convicted felons barred from voting filed a class-action lawsuit against the state. FORD MOTOR: Employees File Class Action Over 401(k) Plan Fees ------------------------------------------------------------- Susan Tompor, writing for Detroit Free Press, reports that three Ford employees say some salaried and hourly employees are paying too much to get investment advice because of an exclusive arrangement. Pay-to-play allegations are hitting the 401(k) universe with a complaint filed on behalf of three Ford Motor employees. Ford, like many major corporations, offers hourly and salaried employees who participate in its retirement savings plans the option of paying a professional manager to help them pick and choose their mutual funds. Think of it as an optional adviser- for-hire arrangement. But the complaint filed Nov. 9 in U.S. District Court for the Eastern District of Michigan in Detroit raises questions about how exclusive, behind-the-scenes relationships impact costs to employees. The complaint was filed seeking class action status. The suits asks if the Ford retirement plan record keeper, Xerox HR Solutions, is taking advantage of 401(k) participants by taking a cut of the fee charged for a professional manager? At issue is whether Xerox's arrangement with the professional manager -- Financial Engines -- is a pay-to-play arrangement that inflates the cost to employees paying the extra fee. It's a complicated arrangement, but the issues in the complaint are worth reviewing to get more insight into some 401(k) options. The situation is another reminder of how little employees may know about fee structures and costs associated with 401(k) plans. Susan Tompor: Baby boomers, like Cher, must study IRA rules "It's all about transparency in our industry -- or the lack thereof," said Todd Hughes, director of vendor and ERISA services for Pension Consultants in Springfield, Mo. Mr. Hughes, whose company offers retirement plan management for plan sponsors, said it's hard to know how the complaint will play out. But he noted that suits involving excessive record-keeping fees or investment expenses have been building along with increasing concerns about conflicts of interest and lack of transparency The overall dollars aren't small. The Ford 401(k) participants paid $5.79 million in fees in 2015 to tap into Financial Engines, according the complaint. And $1.84 million in those fees -- or more than 30% -- went to Xerox. Because Ford is a major employer, the plans are sizable. About $13.94 billion in net assets were involved, including those for hourly and salaried workers, as of Dec. 31, 2015, according to the complaint. Xerox HR Solutions, the only named defendant, declined to comment for this story. Ford, which is not named as a defendant, declined to comment about the case. "Ford is not a party in this case but is proud to offer competitive salary and benefits to our employees," Ford spokesman Brad Carroll said in a written news release. Financial Engines, again not named as a defendant in the suit, offered this comment: "Financial Engines was founded on a commitment to look out for investors' best interests and we continue to do so today," said Mike Jurs, director of public relations and social media for Financial Engines, based in Sunnyvale, Calif. The law firms submitting the case include the Miller Law Firm, based in Rochester, and Philadelphia-based Berger & Montague. The three Ford employees named as plaintiffs are Michigan resident Patrick Chendes, who participated in the salaried plan and invested through Financial Engines' Professional Management Program. Two hourly employees are named: Dion Tumminello of Michigan and Jillian Smith of Missouri. The history of the Financial Engines deal goes back to 2011 when the director of employee benefits at Ford, then Rick Popp, began sending letters to salaried plan participants to consider opting into professional management offered by Financial Engines "to manage your account, build a personalized retirement plan, pick investments for you and help you keep on track," the complaint states. Financial advisers in the Detroit area noted that Mr. Popp also made an online video via YouTube to introduce Ford employees to Financial Engines. On that video, Mr. Popp stated that Ford was seeking to deliver competitive benefits and offer tools to enable employees to get the best out of their benefits. "Financial Engines is the best in the business for what we need today," Mr. Popp said on the video. He noted that Financial Engines would serve as an "unbiased, independent adviser or helper." Financial Engines is well-known for its computer-based investment advice program that can control the allocation of the saver's account. The selection of funds reflects, in part, a saver's personal financial information, age and retirement expectations. Ford employees can choose to put their retirement savings in several mutual funds, including a variety of BlackRock index funds, as well as a Vanguard U.S. Equity Index Fund and other mutual funds. The complaint noted that according to a September 2011 letter, Ford negotiated an asset-based fee with Financial Engines based on a percentage of the dollars invested through Financial Engines. A fee of 0.45% applied to the first $100,000 invested. The fees declined for larger balances. For example, the fees dropped to 0.2% for amounts in excess of $250,000 invested. The complaint doesn't center on the fee structure itself, but on the payments made to Xerox based on the fees collected. The payments made to Xerox are for "data connectivity services," the complaint said. (Financial Engines is able to trade funds directly in the 401(k) for the plan participants.) The complaint said "there is no rational justification for an asset-based fee for whatever services Xerox HR provided." Fees collected go up when larger dollars are held in the individual's 401(k). But the level of Xerox's services to a participant does not increase when that participant's account has grown through additional contributions or investment gains, the complaint noted. Financial Engines became the exclusive investment advice provider, the only one that could receive fees directly taken out of individuals accounts. If individuals work with other financial money managers to handle their 401(k) money, the individuals typically need to write a check directly to those firms to cover the cost. Too often, of course, there are plenty of ways to distract savers who are never really certain what fees they're paying. Extra costs, of course, can stall one's ability to save for retirement and back-end deals don't help savers. GANZ INC: Two Charities Get Residual Webkinz Settlement Funds ------------------------------------------------------------- The Daily Journal reports that Nuts for Candy and the law firm of Cotchett, Pitre and McCarthy presented checks of more than $25,000 to two charities from residual settlement funds of a class action lawsuit and matching funds from Steven N. Williams, a partner with the firm. The two recipient charities are the Marine Toys for Tots Foundation and the Central County Fire Department Toy Drive and the funds were delivered in time for the organizations to purchase Christmas gifts for children this holiday season, according to the law firm. The residual settlement amount of the class action lawsuit "Webkinz Antitrust Litigation" case was allowed to be distributed to charitable trusts that closely related to the original intention of the settlement, which opened the door for John Kevranian of Nuts for Candy & Toys in Burlingame and the law firm to seek the court's approval to name the two charities as beneficiaries. The lawsuit was spearheaded by Williams and was a class action suit brought on behalf of injured consumers such as plaintiff Nuts for Candy, according to the law firm. "Both Toys for Tots and the Central County Fire Department serve a very special part of our local communities -- its kids -- and we are more than honored to support their cause, particularly during this time of the year," Mr. Kevranian said. GENTLEMEN'S CLUB: Exotic Dancers File Labor Class Action -------------------------------------------------------- Abby Broyles, writing for KFOR, reports that two metro strip clubs are at the center of a federal class action lawsuit. Exotic dancers are suing Whispers Gentlemen's club in Valley Brook and Midway Island. Former Oklahoma City attorney Michael Billings is named as a defendant because he owns Midway Island. He's currently serving 14 years in federal prison for sex crimes. The dancers are suing under the Fair Labor Standards Act. Federal courts have ruled, under that act, dancers at nightclubs are employees. The dancers suing said, because their bosses classified them as independent contractors instead of employees, they're out a lot of money. "If you can control the environment of the work place and if your services are essential to the continuation of the workplace being in existence, you must be an employee. You can't be an independent contractor," said employment law expert Dustin Hopson. Essentially, the dancers are saying their services are essential to keeping the clubs open. The dancer named in the labor lawsuit said she was forced to share her tips from spectators with the managers, doormen and disc jockeys. "It appears they were doing tip sharing with employees that wouldn't otherwise be subject to tip sharing and, so, for that reason, the employer was taking what is their property, the tip money, and giving to others they didn't have any right to give it to," Mr. Hopson said. The lawsuit alleges the club owners never paid the dancers a dime, claiming their sole source of income was "gratuities received from paying customers." Now, the dancers want unpaid hourly wages, overtime pay and damages. The lawsuit seeks a jury trial. The plaintiffs' attorney is seeking more clients for the class action suit, even taking an ad out in the paper. GOOGLE INC: Faces Complaints Over Freezing Pixel Smartphones ------------------------------------------------------------ JC Torres, writing for Slash Gear, reports that Google may have broken out the champagne a wee bit too early for its Pixel smartphones. After a brief but pleasant honeymoon, owners are slowly discovering the warts hiding under the pretty facade. The latest string of user complaints involve the Pixel smartphones randomly freezing and becoming unusable under still unreproducible circumstances. It is, however, just the latest in what looks like a growing list of complaints and issues plaguing the first "made by Google" smartphone. The first complaints about the Google Pixel happened not too long ago, when some users found that their cameras were rendered practically unusable by a purple shade and random artifacts. Then just days before Christmas, another group of users reported severe distortions in audio when playing at max volume. That may be a simple software problem, hinted by that fact that a custom ROM seems to have a fix for it. This latest issue, unfortunately, might be a combination of both software and hardware. Actually, its exact nature is so elusive making it near impossible to pin down on either possibility. All users now is that their Pixel phones would suddenly freeze and become unusable. Sometimes, navigation buttons would even disappear. This would last from a few seconds to a few minutes. Some have pointed the blame at third-party apps like Life360. Others have pinned it on location services and hardware. Others, however, experience the problem even without those two factors. Both Pixel and Pixel XL smartphones are equally affected, hinting at a deeper, hardware problem. Google is naturally intent on solving these mysteries, even if it remains ominously silent. After all, it is its premiere and maiden smartphone. But the rising number of complaints about do make one wonder if Google bit off more than it could chew and if it really has what it takes to make its own smartphones. GOOGLE INC: To Change E-mail Scanning After Class Action -------------------------------------------------------- Sam Varghese, writing for itwire, reports that Google has agreed to change the way it scans emails destined for a Gmail user's inbox, following a class action lawsuit in California. The changes were agreed to by Google as part of a voluntary settlement in the case Matera v Google that began in September 2015, according to a report at The Verge. If the court approves the settlement, Google will only scan emails once they land in a Gmail user's inbox. The changes will then come into effect in March next year. The lawsuit was brought on behalf of non-Gmail users who have not agreed to have their emails scanned by Google as Gmail users do when they set up an account and agree to Google's terms and conditions. The report said as the Gmail ad-targeting system aims for every email received by a Gmail user, it was natural that it would also trap some emails from non-Gmail users. The gap between scanning emails before they land in a Gmail inbox and while they are in transit is very small but the lawsuit argued that this was still a violation of the federal Electronic Communications Privacy Act and the California Information Privacy Act. As part of the settlement, Google agreed to pay the US$2.2 million legal costs of the plaintiffs' lawyers and a sum of US$2000 to each of the people involved in the class action suit. GOPRO: Faces Securities Class Action Over Karma Drone Recall ------------------------------------------------------------ Mark Sutton, writing for Cycling Industry News, reports that GoPro is to be the subject of a legal battle that could prove hugely disruptive to the firm's operations. Legal firm Khang & Khang has brought forward a securities class action suit against the tech giant, alleging that investors had been duped on losses that could have been avoided if the company was forthright on the recall of the Karma drone. The legal team bringing the case have now issued a press release asking investors who lost more than $100,000 through stock investment, in particular in the latter period of 2016, to make contact. Shares must have been held between September 19th and November 4th. The Karma drone recall related to loss of flight, causing the unit to drop and break in most cases. The recall came on November 8th causing share values to plummet. HALLIBURTON: Settles Asbestos Liability Class Action for $54MM -------------------------------------------------------------- The AFP reports that Petroleum service giant Halliburton said it has reached a $54 million settlement in a class action lawsuit related to asbestos liability disclosures. The Houston-based company said in a statement that without admitting guilt, it reached an agreement to settle the Erica P. John Fund class action lawsuit that has been pending in Texas courts for over 14 years. The class action lawsuit was originally filed in 2002 asserting claims in connection with accounting for long term construction projects, and was amended in 2003 to include claims related to asbestos liability disclosures. The case was brought by a group of investors who claimed they lost money when Halliburton's shares plunged, accusing the company of erroneous earnings reports "Halliburton will fund about $54 million of the $100 million settlement fund, and its insurer will fund the balance," the company said in a statement late on Dec. 23. Halliburton was led from 1995 to 2000 by Dick Cheney, who became US vice president in 2001 in the George W. Bush administration. HARLEY-DAVIDSON: Faces Class Action Over Motorcycle Design Defect ----------------------------------------------------------------- Glenn Minnis, writing for Legal Newsline, reports that Harley- Davidson Motor Co. Inc. faces a class action lawsuit alleging the engine on one of its most popular motorcycles has a common design defect that could pose a danger to riders stemming from excessive overheating. California residents Michael Berke and Wolfgang Costello alleged violation of the California Unfair Competition Law earlier in December in filing the complaint both individually and on behalf of all others similarly situated. Both allege they purchased models equipped with twin cam 103 engines, only to discover the high-powered bikes run the substantial risk of causing severe burn injuries to unsuspecting riders due to their aforementioned defect. The plaintiffs also name Does 1-10 as defendants. The complaint also stipulates that when the engines are used as designed, all the excessive heating can shorten the life of the engine on the model. Harley-Davidson is also accused of being aware of the issue with the bikes for more than a decade, and the complaint charges company officials "concealed the dangers inherent in the engine's design, failed to cure the known defect, and subjected its purchasers to further costs and expenses to replace or attempt to make safe said motorcycles." Veteran California plaintiffs attorney Raymond Boucher of the Boucher LLP firm in Woodlands Hills is representing the two men. He told Legal Newsline that his clients feel shortchanged. "They spent enormous amounts for bikes they deeply care about only to realize they've been duped," he said. "Then for them to find out that Harley-Davidson knew about the issue and had a safer alternative they could have used but didn't makes them feel even more violated." The plaintiffs further asserted that Harley-Davidson systematically took advantage of its brand name to not only continue to sell the bikes but do so at a price higher than most of their competitors. Messrs. Berke and Costello seek trial by jury, an injunction ordering the defendants to repair or replace the engines on the models, all court costs and attorney fees. "My clients are hoping Harley will step up and provide a fix for situation," Mr. Boucher added. "They need to right this wrong and improve the safety of the models. The last thing anyone wants is an accident." Attorneys for Messrs. Berke and Costello also contend the bikes' air-cooling systems are insufficient to safely cool its twin cam engines and lack the type of liquid cooling system found in most vehicles. "We're just filing the complaint," Mr. Boucher said. "It'll be at least a couple months before we are in front of a judge, but we look forward to that day. In addition to Mr. Boucher's partner Shehnaz M. Bhujwala, Messrs. Berke and Costello are represented by attorneys Christopher P. Ridout -- christopher.ridout@zimmreed.com -- and Hannah P. Belknap -- hannah.belknap@zimmreed.com -- of Zimmerman Reed LLP in Manhattan Beach, and by Gregory J. Owen, Susan A. Owen and Tamiko B. Herron of Owen Patterson & Owen LLP in Valencia. Repeated messages to Harley-Davidson seeking comment went unanswered. HINDS COUNTY, MS: Settles Remaining Claims in Labor Class Action ---------------------------------------------------------------- Jimmie E. Gates, writing for The Clarion-Ledger, reports that Hinds County will temporarily borrow up to $450,000 to settle the U.S. Department of Labor's claims against the county in a long- running federal case involving Hinds County Sheriff Department employees who weren't paid for some overtime work. In 2015, Hinds County settled a federal class action lawsuit involving then-124 current employees and 155 former sheriff department employees, paying a total of about $1 million in back pay and attorney fees. Now, the county has reach a settlement with the Department of Labor for remaining claims of employees or former employees who didn't opt-in to the settlement. The Hinds County Board of Supervisors approved a resolution to borrow up to $450,000 through a tax anticipation loan. The majority of the county's tax revenue doesn't come in until January and February. Board of Supervisors' Attorney Pieter Teeuwissen said on Dec. 27 the goal is to pay the settlement claim as soon as possible. The case began in 2012. No one who was part of the class action settlement will receive any of the money from the Department of Labor settlement. It's only for those who weren't part of the lawsuit. "(Department of) Labor is comparing lists; we want to make sure no one is on the settlement list more than once," Mr. Teeuwissen has said. Initially, when the lawsuit and the Department of Labor investigation began, it was feared by county officials that as much as $20 million might have to paid to resolve the overtime cases. Mr. Teeuwissen said on Dec. 27 it looks like the county's final cost will be about $1.5 million. The case started in 2012, when employees Derius Harris and Ray Marshall sued Hinds County. Another employee, Frederick Malone, later joined the class action suit. The overtime issue involves the administration of former Sheriff Tyrone Lewis, who took office in January 2012, as well as the late Sheriff Malcolm McMillin, who lost a re-election bid to Lewis in 2011. Lewis lost his re-election bid to Victor Mason, who took office in January. The former employees in the lawsuit were seeking to recover unpaid overtime compensation. T hey had been correctional officers employed by the sheriff's department in non-supervisory positions. The employees said they were not paid all overtime wages owed and that the county didn't pay for all compensatory time earned when the employees' employment ended. Mick Norris, one of the attorneys for the plaintiffs in the class action lawsuit, has said the county has taken steps to clean up everything. He said accurate records are now kept of sheriff employees' overtime and how much compensatory time each employee is owed is reflected on pay stubs. Hinds County also agreed as part of the settlement that the sheriff's department would implement a policy that placed a limit of 480 hours on the amount of compensatory time an employee can accrue. Once an employee reaches that limit, the county will pay overtime instead of compensatory time. HOME HEALTH: Faces "Shotomiroy" Suit for Failure to Pay Min. Wage ----------------------------------------------------------------- Djumabay Shotomiroy, individually and on behalf of all others similarly situated v. Home Health Care Services of New York Inc., Case No. 522567/2016 (N.Y. Sup. Ct., December 20, 2016), is brought against the Defendants for failure to pay minimum wages in violation of the New York Labor Law. Home Health Care Services of New York Inc. operates a home health care agency that provides professional medical and non-medical home care services to the elderly. The Plaintiff is represented by: Gennadiy Naydenskiy, Esq. NAYDENSKIY LAW GROUP, P.C. 1517 Vodrhies Ave, 2nd Fl. Brooklyn, NY 11235 Telephone: (718)808-2224 Facsimile: (866) 261-5478 E-mail: naydenskiylaw@gmail.com HONEY SOLUTIONS: Judge Orders Dismissal of Class Action ------------------------------------------------------- Michelle de Leon, writing for SE Texas Record, reports that a district court judge has ordered the final dismissal of a class action lawsuit, which included a Texas-based honey processor, as one of the defendants in an alleged global conspiracy to transship Chinese honey. Honorable Judge Joan B. Gottschall of the U.S. District Court in Chicago has dismissed the remaining portions of the putative class action lawsuit filed against several major importers of honey in the U.S. In the lawsuit, it was alleged that the defendants were involved in a massive conspiracy which had its reach across the globe. The petitioners claimed that the honey processor companies had been transshipping Chinese honey in an effort to dodge their responsibility to pay millions of dollars for anti-dumping obligations. In the fairness hearing conducted by the district court, Judge Gottschall declared the final dismissal of the lawsuits as well as approved the settlement with the remaining defendants of the claim. The agreement reached a total of $796,312. The amount, according to some, was actually almost equivalent to the "cost of defense" in a nuisance lawsuit. After a lengthy and tenuous trial, which had the defendants strongly opposing the allegations against them, the latest ruling has them released from the case as part of the settlement agreements approved. The defendants in the case included Honey Solutions, Ernie Groeb, Troy Groeb, Sunland Trading, Horizon Partners, LTD, Marquette Capital Partners, and China Industrial Manufacturing Group. The case stemmed from the allegations that the defendants' practices were in clear violation of the Lanham Act for false advertising and unfair competition. Aside from this claim, they were also purported to have breached the Racketeering Influenced and Corrupt Organizations Act (RICO). In 2013, Moore's Honey Farm, Honey Holding I, Ltd, Groeb Farms, Inc and Adee Honey Farms all agreed to hire Grant & Eisenhofer, P.A. and Hausfeld LLP as interim co-lead class counsel. The petitioners alleged that the defendants knowingly engaged and conspired to execute an international scheme to avoid paying the required fees. According to the plaintiffs, the honey companies worked to buy, package, ship and market honey that they illegally imported and fraudulently labeled as products from China. The class action lawsuit later on solidified to become the "Honeygate" investigation. This enquiry on the honey importers, which lasted for approximately five years, was headed by the United States Immigration and Customs Enforcement. The operation included a number of seizures of honey imported illegally. Criminal charges and substantial fines were imposed on the companies as well. Throughout the investigation, two of the biggest industrial honey packers, the Groeb Farms, Inc. and Honey Solutions, were heavily penalized by the authorities. For their part, Honey Solutions pointed out that their products have undergone and passed the verification process conducted by the U.S. Customs and Border Protection's C-TPAT program (Customs- Trade Partnership Against Terrorism). The company shared that they have actually been granted a C-TPAT Level 2 certification earlier this year. ILLUMINA INC: Shareholders File Class Action in California ---------------------------------------------------------- GenomeWeb reports that two shareholders have filed a class action lawsuit against Illumina and two of its top officials, claiming that the defendants made materially false and misleading statements regarding the firm's business, operations, and prospects between the announcement of Illumina's second quarter and preliminary third quarter financial results that led to an inflated share price. Plaintiffs Yi Fan Chen and Frontline Global Trading, of which Chen is president, filed the suit on Dec. 13 in the US District Court for the Southern District of California on behalf of a class that consists of persons and entities that bought Illumina securities between July 26 and October 10 of this year. The defendants are Illumina; President and CEO Francis deSouza; and Executive Vice President, Chief Administrative Officer, and CFO Marc Stapley. On July 26, Illumina announced its second quarter earnings, which included revenue guidance of between $625 million and $630 million for the third quarter. On Oct. 10, the company released preliminary revenues for the third quarter that fell $18 million to $23 million short of that guidance, leading to a drop of Illumina's share price by about 25 percent at the end of that day. Illumina said at the time that the revenue shortfall was driven by "a larger than anticipated year-over-year decline in high- throughput sequencing instruments." According to the complaint, the defendants allegedly failed to disclose prior to October 10 that Illumina was experiencing a large decline in high-throughput sequencing instrument sales that was impacting its revenue, that they lacked visibility into trends that could impact its financial results substantially, that they provided unreliable and overstated revenue guidance, and that they made false and misleading positive statements about Illumina's business, operations, and prospects. As a result, the company's shares traded "at artificially inflated prices" during the class period, according to the plaintiffs, and because of the "precipitous decline" in the market value of Ilumina's shares after the Oct. 10 announcement, the plaintiffs and other class members "suffered significant losses and damages." The plaintiffs asked the court to award them and the other class members compensatory damages of a yet-to-be determined amount, as well as costs and expenses. Illumina's shares dropped less than 1 percent to $130.16 in afternoon trading on the Nasdaq. The company declined to comment on the lawsuit. ILLUMNIA INC: Feb. 14 Lead Plaintiff Bid Deadline in Levi Suit -------------------------------------------------------------- The following statement is being issued by Levi & Korsinsky, LLP: To: All persons or entities who purchased or otherwise acquired securities of Illumina, Inc. ("Illumina" or the "Company") (NASDAQ:ILMN) between July 26, 2016 and October 10, 2016. You are hereby notified that a securities class action has commenced in the USDC for the Southern District of California. To get more information go to: http://www.zlk.com/pslra/illumina-inc 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 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. Levi & Korsinsky -- http://www.zlk.com-- is a national firm with offices in New York, New Jersey, California, Connecticut, and Washington D.C. The firm's attorneys have extensive experience representing investors in securities litigation involving financial fraud, and have recovered hundreds of millions of dollars for aggrieved shareholders. ILLUMINA INC: Faruqi & Faruqi Files Securities Class Suit --------------------------------------------------------- Faruqi & Faruqi, LLP, a leading national securities law firm, reminds investors in Illumina, Inc. of the February 14, 2017 deadline to seek the role of lead plaintiff in a federal securities class action lawsuit filed against the Company and certain officers. The lawsuit has been filed in the U.S. District Court for the Southern District of California on behalf of all those who purchased Illumina securities between July 26, 2016 and October 10, 2016. The case, Chen v. Frontline Global Trading Pte. Ltd. et al, No. 3:16-cv-03044 was filed on December 16, 2016, and has been assigned to Judge Marilyn L. Huff. The lawsuit focuses on whether the Company and its executives violated federal securities laws by making false and/or misleading statements and/or failing to disclose: (1) Illumina was experiencing a significant decline in high throughput sequencing instrument sales; (2) that the aforementioned decline was impacting the Company's revenue; (3) that Illumina lacked visibility into trends that could have a significant impact on its financial results; (4) that, as such, the Company's revenue guidance was unreliable and overstated; and (5) that, as a result, Illumina's statements about its business, operations, and prospects, were false and misleading and/or lacked a reasonable basis. Specifically, on October 10, 2016, Illumina announced dismal financial results for third quarter of fiscal year 2016. Illumina estimated third quarter revenue of approximately $607 million, lower than the Company's guidance of $625 million to $630 million. Illumina accredited the lower revenue to "larger than anticipated year-over-year decline in high throughput sequencing instruments." Additionally, Illumina revealed it expected fourth quarter revenue to be flat to slightly up sequentially. On this news, Illumina's share price fell from $ 184.85 on October 10, 2016 to a closing price of $138.99 on October 11, 2016 -- a $45.86 or a 24.81% drop. Request more information now by clicking here: www.faruqilaw.com/ILMN. There is no cost or obligation to you. Take Action If you invested in Illumina stock or options between July 26, 2016 and October 10, 2016 and would like to discuss your legal rights, visit www.faruqilaw.com/ILMN. You can also contact us by calling Richard Gonnello toll free at 877-247-4292 or at 212-983-9330 or by sending an e-mail to rgonnello@faruqilaw.com. Faruqi & Faruqi, LLP also encourages anyone with information regarding Illumina's conduct to contact the firm, including whistleblowers, former employees, shareholders and others. The court-appointed lead plaintiff is the investor with the largest financial interest in the relief sought by the class that is adequate and typical of class members who directs and oversees the litigation on behalf of the putative class. Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. Your ability to share in any recovery is not affected by the decision of whether or not to serve as a lead plaintiff. INDIAN CREEK: Ex-Employee Files Class Action in Over Unpaid Wages ----------------------------------------------------------------- Wadi Reformado, writing for Florida Record, reports that a former employee has filed a class-action lawsuit against Indian Creek Country Club, Inc. and Raul Perez, employer, citing alleged unpaid wages and violation of workers compensation acts. Rhina D. Arana filed a complaint on behalf of other similarly situated individuals on Dec. 16, in the U.S. District Court for the Southern District of Florida Miami Division against the defendants alleging that they failed to pay fair wages to the plaintiff. According to the complaint, the plaintiff alleges that she worked for more than 40 hours without being paid any overtime compensation. The plaintiff holds Indian Creek Country Club, Inc. and Raul Perez responsible because the defendants allegedly failed to pay the plaintiff any overtime premium for working more than 40 hours per week. The plaintiff requests a trial by jury and seeks actual damages, unpaid overtime compensation, interest, liquidated damages, all legal fees and any other relief as this court deems just. She is represented by Zandro E. Palma of Zandro E. Palma, P.A. in Miami. U.S. District Court for the Southern District of Florida Miami Division Case number 1:16-cv-25220-DLG 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 LawsuitInfuSystem 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, LLCKSF, 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.To learn more about KSF, you may visit http://www.ksfcounsel.com/ INTER-CON SECURITY: Does Not Properly Pay Workers, Action Says -------------------------------------------------------------- Stella Ramirez, on behalf of herself and all others similarly situated v. Inter-Con Security Systems, Inc. and Does 1 through 100, inclusive, Case No. BC644528 (Cal. Super. Ct., December 20, 2016), is brought against the Defendants for failure to pay minimum and overtime wages in violation of the California Labor Code. Inter-Con Security Systems, Inc. operates a security company headquartered in Pasadena, California. The Plaintiff is represented by: Michael Nourmand, Esq. THE NOURMAND LAW FIRM, APC 8822 West Olympic Boulevard Beverly Hills, CA 90211 Telephone: (310) 553-3600 Facsimile: (310) 553-3603 - and - David D. Bibiyan, Esq. BIBIYAN & BOKHOUR, P.C. 287 South Robertson Boulevard, Suite 303 Beverly Hills, CA 90211 Telephone: (310) 438-5555 Facsimile: (310) 300-1705 IOWA: Class Action Aims to Equalize School-Funding Formula ---------------------------------------------------------- Deirdre Cox Baker, writing for Quad-City Times, reports that a Davenport attorney who is the daughter of a former school board president filed a lawsuit on Dec. 19, taking up the fight to equalize Iowa's school-funding formula. Catherine Z. Cartee, of Cartee & McKenrick, P.C., Davenport, filed the class action lawsuit against the State of Iowa, the Iowa General Assembly, the Iowa Department of Education and Iowa Gov. Terry Branstad. "My mom was president of the Davenport School Board for years, and she used to fight for inequities, too" Cartee said of her mother, Patt Zamora. The suit is filed in behalf of Brean Woods and Becca Frederick, both of Davenport and graduates of the district's high schools. The suit charges the state's funding formula is unfair, and shows that Davenport schools' per pupil cost was $6,446 in 2015-16, and is $6,591 for the current year. The suit claims that 176 school districts in Iowa collect up to $175 more per student than Davenport does, using the same funding formula applied across the state. It charges the practice is a violation of equal protection under the law, a violation of the students' due process and a violation of the students' civil rights. It argues the class action lawsuit is appropriate for this case, in that it represents "all current and former students of Iowa public schools who received the least district cost per-pupil" since the current school funding formula was enacted four decades ago. The plaintiffs request a jury trial. No immediate response was available from representatives of the state education department. Ryan Wise, the education department director, filed a formal ethics complaint against Davenport Superintendent Art Tate. That came about 24 hours after the Iowa School Budget Review Commission ruled against the district and Tate's directive to use $175 per student for district programming. Currently that programming focuses on help for at-risk students. The money is coming from Davenport's reserve funds, or part of the estimated $20 million the district has in a savings account. Ms. Cartee said the lawsuit technique was spurned by other lawyers as being "too political." "So, I thought, I'll do this," she said. Ms. Cartee said what the state is doing is inequitable and discriminatory. "I think its time someone actually stands up to the Legislature, and the governor, and gets them to do what's right," she said. ISRAEL CHEMICALS: Motion to Approve Class Action Dismissed ---------------------------------------------------------- Reuters reports that ICL Israel Chemicals announced the dismissal of a motion for approval of a class action. The court also ruled that plaintiff shall pay to company and other defendants a portion of trial expenses and attorneys' fees. JRC VENTURES: Faces "Smith" Suit Over Failure to Pay Overtime ------------------------------------------------------------- Merrie Smith, individually and on behalf of others similarly situated v. JRC Ventures, Inc., Jacque R. Collett, and 24-7 Bright Star Healthcare, LLC., Case No. 1:16-cv-00499 (E.D. Tenn., December 20, 2016), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standards Act. The Defendants are in the business of providing in-home healthcare and companionship services to individuals. The Plaintiff is represented by: Frank P. Pinchak, Esq. H. Eric Burnette, Esq. Burnette, Dobson & Pinchak 711 Cherry Street Chattanooga, TN 37402 Telephone: (423) 266-2121 Facsimile: (423) 266-3324 E-mail: fpinchak@bdplawfirm.com eburnette@bdplawfirm.com KANSAS CITY, MO: Testimony Begins in Trash Services Class Action ---------------------------------------------------------------- Lynn Horsley, writing for The Kansas City Star, reports that trial testimony began on Dec. 19 in a case that asks whether Kansas City must make payments to hundreds of apartment and condo owners to cover their trash services. If the case ultimately goes against the city, it could involve $10 million in past-due payments and millions more going forward. It all stems from a 1976 court order relating to the city's earnings tax. A Platte County judge said at the time that Kansas City had improperly created two classes of earnings-tax paying residents, because the city provided free trash pickup for single- family residences but not for large apartment buildings. His order required the city to make payments to multifamily buildings with seven or more units to cover their trash services. The City Council decided in 2010 to halt those payments because of severe budget constraints. The payments stopped to most apartment owners, except for a group that reached a separate legal settlement. "They just assumed the power to ignore the order," attorney Greg Leyh told Platte County Circuit Judge James Van Amburg in opening arguments for the bench trial. "The city simply flouted it." Mr. Leyh is one of several attorneys representing the Sophian Plaza Association, Townsend Place Condominium Association and several hundred other owners in the class-action lawsuit that argues the city is in contempt of court. But Assistant City Attorney Chad Stewart said the 1976 agreement was signed by an assistant city attorney who had no authority to bind future city councils to those payments. He also said that both sides -- the city and the apartment owners -- made promises in 1976, and the apartment owners didn't hold up their end of the deal to provide tenants with equivalent or better trash services than the city. "Times change," Mr. Stewart told the court, adding that the city in the mid-2000s began curbside recycling, yard waste collections and bulky item pickups, while limiting households to just two free bags of trash every week to save landfill space. None of the apartments implemented those trash service changes that would be equivalent to what the city does, Stewart argued. Assistant City Attorney Tara Kelly said during a recess on Dec. 19 that the city believes the 1976 court order and agreement were not valid contracts and are void. "That's one of the things the judge will have to take a look at," she said. Complicating the case is the fact that the Heartland Apartment Association, a group of 117 major apartment complex owners, threatened to sue over the loss of the rebates. The city agreed to pay them annual rebates, costing about $750,000 in recent years, so they could hire their own trash contractors. Mr. Leyh said it was unfair that these politically connected "real estate elites" who hired a lawyer and a lobbyist got a deal from the city, while his clients, including smaller mom-and-pop apartment owners, did not. He said that since the payments stopped in 2010, the loss to the class totals about $10 million, and going forward five years it could total $7 million more. "There's a lot at stake in this case," he said. Mr. Stewart countered that none of Mr. Leyh's clients were part of the 15 original plaintiffs in 1976, and many weren't even in business then. "That's important," he said. He also said the council's discussions about eliminating the apartment rebate program were well publicized beginning in 2008, and Heartland was the only group to challenge the decision. In videotaped deposition testimony shown on Dec. 19, City Manager Troy Schulte, who was budget director in 2008, said he would have preferred that the city go back to the Platte County Court to alter the 1976 order before halting the trash rebate payments, but the Law Department chose not to do that. "I was hoping for a permanent solution," Schulte said in his deposition. The plaintiffs also showed video of a 2008 City Council finance committee meetings, in which then-council members Jan Marcason and Bill Skaggs worried about litigation over the curtailed payments, but said the budget woes were so great that they supported the cut. The trial was expected to last through Dec. 21, and Judge Van Amburg is expected to take arguments under advisement. No matter which way he ultimately rules, both sides expect an appeal. KLM TRANSPORT: Faces Class Actions Over Wage-and-Hour Violations ---------------------------------------------------------------- The Trucker reports that a lawsuit on behalf of California and Florida drivers charging KLLM Transport Services LLC with numerous wage and hour violations was filed November 14 in U.S. District Court for the Central District of California and is one of several similar actions in 2016. Another lawsuit brought by the same attorney, Joshua H. Haffner of Los Angeles, alleging the same wage and hour violations, was filed December 9 in Los Angeles County Superior Court against K & R Transportation LLC of Wilmington, California, an in-house drayage operator for California Cartage Co. Mr. Haffner has made a sort of specialty of California labor lawsuits against trucking companies. The industry's means of compensation, especially in the truckload sector where few if any drivers are paid by the hour and almost all are paid by the mile, appears to subject it to extra scrutiny in states such as California that have worker-friendly wage and hour laws. Both lawsuits seek class action status in order to receive back pay, pre-judgment interest, liquidated damages, statutory penalties, attorney's fees and costs, and "for Plaintiff and the Class of members no longer employed, waiting time penalties." Each one charges the companies with failure to provide meal periods and rest breaks, failure to pay minimum wage and to pay all wages owed every period, failure to furnish accurate and timely wage statements and failure to reimburse business expenses. Both are based on alleged misclassification of drivers as independent contractors, a practice that, Mr. Haffner said, is "quite common." "The lawsuit contends drivers are misclassified as independent contractors although, because of the circumstances of employment, and control by employers, they are in fact employees under the legal test for determining whether a relationship is employment or not," Mr. Haffner said in an interview with The Trucker. "[The] complaint alleges fuel, insurance, maintenance, cost of tractor" were not paid [to the drivers]. The lease agreements that some trucking companies require drivers to sign unfairly tie up the driver's truck, Mr. Haffner charged. "Many trucking companies operate under lease agreements which prohibit or constrain drivers from using that truck for other employers," he said. "This alone significantly undermines the independent contractor classification. The complaint alleges failure to pay minimum wages for certain days and failure to reimburse business expenses, and requests penalties associated with Labor Code violations, among other things." Two KLLM drivers, Shawn Etienne and Angelo Grant, "on behalf of themselves and all others similarly situated," are plaintiffs in the lawsuit against the Mississippi refrigerated carrier. Etienne is from California, Grant is from Florida. The second lawsuit lists two K & R drivers, Marcio D. Varela and Francisco J. Vera, as plaintiffs. Mr. Haffner frequently takes on misclassification cases involving drivers, he said "I litigated several misclassification cases involving truckers driving out of ports of LA and San Diego, including one that recently settled. I am also currently involved in multiple driver misclassification cases." The class of defendants defined as the "California Class" consists of "all current or former California drivers for [KLLM] who were classified as "independent contractors," at any time beginning four years prior to the filing of the Complaint to the date notice of mail to the Class." The "Florida Class" is identical for KLLM drivers from that state. MADISON COS: Thunder on the Mountain Class Action Can Proceed ------------------------------------------------------------- Arkansas Business reports that country music festival concert- goers received a legal victory when the Arkansas Court of Appeals found that their potential class-action lawsuit could go forward against an organizer of the canceled Thunder on the Mountain event at Mulberry Mountain near Ozark in 2015. The ticket holders had sued the venture capitalist firm Madison Cos. LLC of Greenwood Village, Colorado, and others because when the event was nixed, they didn't get a refund. Madison, though, wanted the case sent to arbitration, where awards are usually smaller than they would be in a court proceeding. Pulaski County Circuit Court Judge Alice Gray had denied the request in February, and Madison appealed the ruling to the Arkansas Court of Appeals. The promoters of the event, Pipeline Productions Inc. and Backwood Enterprises LLC, both of Lawrence, Kansas, also were named as defendants. The plaintiffs received a default judgment against them last December because they never answered the complaint. The Madison Cos. argued in court that when people purchased their tickets on a website there should have been "terms of sale" language that included a binding arbitration agreement. The Madison Cos. also said it had "absolutely nothing to do with the promotion, sales, or marketing of tickets to Thunder Mountain Festival" and just loaned money to Pipeline, according to the opinion delivered by Appeals Court Judge Rita Gruber. Judge Gruber didn't find proof that an agreement to arbitrate existed between the Madison Cos. and the ticket holders and affirmed Judge Gray's ruling. "We are happy for our clients with the Court of Appeals' decision," Scott Poynter of Little Rock, one of the attorneys representing the proposed class members, said in an email to Whispers. "Defendants' strategy was first one of delay, but also they wanted the case kicked out of court and to take our clients' right to a jury away from them. We hope to move swiftly now, because most of our clients spent over a thousand dollars in festival tickets and camping passes, and never got their promised refunds." An attorney for Madison, Richard Benenson of Denver, didn't immediately return a call for comment. MARICOPA COUNTY, AZ: Melendres Arrest Sparked Arpaio Class Action ----------------------------------------------------------------- Tana Ganeva, writing for Raw Story, reports that for years, Maricopa County Sheriff Joe Arpaio billed himself as "America's toughest Sheriff." He took a multi-pronged approach to maintaining his reputation as a tough lawman, from building the notorious Tent City -- an outdoor jail where inmates suffered in dangerously hot weather -- to his embrace of racially discriminatory tactics. In recent years, the Sheriff's seeming indifference to constitutional and human rights has backfired: beset by a series of lawsuits that cost the county millions, he lost his re-election bid in 2016. On Dec. 26, AZ Central published a lengthy profile of the man at the center of the class-action lawsuit that led to the unraveling of the Sheriff's 24-year-long career. Manuel de Jesus Ortega Melendres, who entered the US on a tourist visa, was arrested and kept in custody for nine hours, despite not having broken any laws. "I'm not a criminal, and I've never been one," Ortega Melendres tells AZ Central. "I was thinking a thousand things, that the worst was about to happen. I had heard that the authorities in the United States were understanding, that they did not have a tendency to abuse their power. That day, they showed me the complete opposite of what I had heard. That's when the fear began," he said. Deputies had surveilled Melendres and his associates, then pulled them over on the pretext that they'd been speeding. When Melendres handed the officer his tourist visit and permit, which showed he had the right to be in the US, he was arrested anyway. When he and the others tried to pray in their cell they were told to stop. "This is not a place of prayer. This is not a temple, please shut up," the deputy reportedly told them. The class-action lawsuit stemming from Melendres' arrest revealed that the Maricopa County Sheriff's Department regularly engaged in racial profiling. A statistical analysis of stops and arrests found that deputies unlawfully stopped and arrested people based on the assumption that they were Latino, according to the ACLU. The department also responded to racist complaints by constituents. "If you have dark skin, then you have dark skin! Unfortunately, that is the look of the Mexican illegal who are here ILLEGALLY," read one. Sheriff Arpaio might face 6 months in prison for violating the judge's orders that he stop his immigration crackdowns. Neither those charges or losing the election seem to have chastened the Sheriff. "I am a fighter," he told Phoenix New Times in his exit interview. "I went down in a fight. I didn't just surrender. That's what I am. Especially when you know you're right." MARKETO INC: Faces "Shain" Suit Over Failure to Pay Overtime ------------------------------------------------------------ Justine Shain, individually, and on behalf of others similarly situated v. Marketo, Inc. and Does 1-50, Case No. 16-cv-02940 (Cal. Super. Ct., December 20, 2016), is brought against the Defendants for failure to pay overtime wages in violation of the California Labor Code. Marketo, Inc. is a marketing software technology company organized under the laws of the State of Delaware and doing business in California. The Plaintiff is represented by: Michael Von Loewenfeldt, Esq. Ivo Labar, Esq. Laura Seegal, Esq. KERR & WAGSTAFFE LLP 101 Mission Street, 18th Floor San Francisco, CA 94105-1727 Telephone: (415) 371-8500 Facsimile: (415) 371-0500 E-mail: mvl@kerrwagstaffe.com labar@kerrwagstaffe.com seegal@kerrwagstaffe.com MATTEL INC: March 10 Modification Kit Claim Deadline Set -------------------------------------------------------- NOTICE OF CERTIFICATION AND SETTLEMENT APPROVAL IN THE MATTER OF THE FISHER-PRICE 2010 RECALL CLASS ACTIONS If you or your child purchased or received as a gift a new Fisher- Price trike, high chair or infant toy in 2010 or earlier, your rights could be affected by a class action settlement. Class Action Certification and Settlement Approval Class action lawsuits were commenced in Ontario and Quebec against the Defendants, Mattel, Inc., Mattel Canada Inc. and Fisher-Price, Inc., claiming that the Defendants were negligent in designing, manufacturing, marketing and selling certain children's trikes, high chairs, Little People(R) Rampway toys and certain infant toys with inflatable balls, which were subject to recalls announced on September 29 and 30, 2010 (the "Recalled Products"). A Settlement Agreement has been reached in these class action lawsuits. Superior Courts in Ontario and Quebec have approved the Settlement Agreement and certified the class actions for settlement purposes. Settlement Benefits The "Settlement Class" consists of all persons in Canada who purchased or acquired (including by gift) a Recalled Product. The Settlement provides for the payment of "Settlement Benefits" to members of the Settlement Class who have participated in one of the September 2010 Recalls by requesting and receiving a "Modification Kit" on or before March 10, 2017. The Settlement provides for total Settlement Benefits of up to $200,000 to be paid to the Settlement Class. The Settlement further provides for the separate payment by Mattel of legal fees and disbursements to Class Counsel of up to $75,000 plus applicable taxes. Settlement Class members who have received a Modification Kit or who submit a valid Modification Kit Claim before March 10, 2017 may be entitled to receive a cheque in the amount of $8.00 per Modification Kit sent or claimed, up to a maximum of $24 per Person and/or address (i.e. a maximum of 3 Modification Kits). Settlement Class members who are still in possession of one or more Recalled Products and who have not yet been sent a Modification Kit may submit a Modification Kit Claim before March 10, 2017*. The Settlement represents a resolution of disputed claims. The Defendants do not admit any wrongdoing or liability. If you think you may be a member of the Settlement Class, you should immediately review the full Long-Form Settlement Notice to ensure you understand your legal rights. A copy of the Long-Form Settlement Notice can be obtained online at www.clg.org, by calling 1-888-909-7863, or from Class Counsel at the address listed below. Opting Out: If you do not wish to participate in the Settlement, you can exclude yourself from the class actions by filing a written request to opt-out. If you opt-out, you will not be eligible to claim any Settlement Benefits nor to participate in the Settlement in any way. The written request to opt-out must include: (a) your full name, address, and telephone number; (b) all information in your possession identifying the Recalled Product you purchased or acquired; and (c) a request to be excluded from the Settlement Proceedings, and must be sent to the following address, and received or postmarked no later than March 10, 2017: Consumer Law Group Inc., 102-1030 rue Berri, Montreal, Quebec H2L 4C3 Attention: Jeff Orenstein. Quebec Settlement Class members must also send the written request to the following address: Clerk of the Superior Court of Quebec, Palais de Justice, 1 Notre-Dame St. East, Montreal, Quebec, H2Y 1B6, Court File No: 500-06-000526-109. Class Counsel The law firm of Consumer Law Group Inc. / Consumer Law Group Professional Corporation ("Class Counsel") represents the Settlement Class Members in all provinces. Class Counsel can be reached by telephone (toll free) at 1-888-909-7863, by e-mail at jorenstein@clg.org, on the Web at www.clg.org, or by mail at 102- 1030 rue Berri, Montreal, Quebec, H2L 4C3 Attention: Jeff Orenstein. Questions? Call 1-888-909-7863 toll free or visit www.clg.org Pour obtenir une copie de cet avis ou tout autre information relativement a ce reglement en francais, veuillez s'il vous plait consulter le site internet suivant : www.clg.org ou telephoner au 1-888-909-7863. *NOTE: You are still entitled to participate in the Fisher-Price Recall Program by visiting http://service.mattel.com/us/recall.aspand requesting a modification kit. THIS NOTICE HAS BEEN AUTHORIZED BY THE ONTARIO SUPERIOR COURT OF JUSTICE AND THE SUPERIOR COURT OF QUEBEC MDL NO. 2311: April 19 Settlement Approval Hearing Set ------------------------------------------------------ If You Bought or Leased a New Vehicle, or Bought Certain Replacement Parts for a Vehicle in the U.S. Since 1996 You Could Get Money from Settlements Totaling Approximately $604 Million The following is being released by the Notice Provider, Kinsella Media, LLC, about the lawsuit In re Automotive Parts Antitrust Litigation, MDL No. 2311. There is an update for affected purchasers in this lawsuit about certain vehicle components, as there have been additional Settlements that may affect their rights. Twelve additional Defendants have agreed to Settlements resolving claims that they fixed the price of certain vehicle components. (The Court previously approved settlements with 11 Defendants, totaling approximately $225 million.) The additional Settlements being presented for Court Approval total approximately $379 million. The lawsuits allege that Defendants fixed the price of certain vehicle components, causing millions of consumers and businesses from around the country to pay more for certain new or leased vehicles and replacement parts. A complete list of included parts is available at the website, www.AutoPartsClass.com. Consumers and businesses may be included in the Class if, from 1996 to 2016, they: 1. Bought or leased a qualifying new vehicle in the U.S. (not for resale), or 2. Bought a qualifying vehicle replacement part (not for resale) from someone other than the manufacturer of the part. In general, qualifying vehicles include four-wheeled passenger automobiles, cars, light trucks, pickup trucks, crossovers, vans, mini-vans, and sport utility vehicles. Individuals can visit the website, www.AutoPartsClass.com, or call 1-877-940-5043 to determine if they are included in one or more Settlement Classes. The Settlement Funds (after expenses, attorney fees, and other costs) will be used to pay consumers and businesses in the District of Columbia and 30 states: Arizona, Arkansas, California, Florida, Hawaii, Iowa, Kansas, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, West Virginia, and Wisconsin. The Settlements also provide non-monetary relief, including cooperation, and an agreement by certain Settling Defendants not to engage in certain anticompetitive conduct for a period of 24 months. Affected consumers and businesses can submit a claim form online or by mail to get a payment. There is no deadline yet to submit a claim. Claim forms are available at the website, www.AutoPartsClass.com, or by calling 1-877-940-5043. At this time, it is unknown how much each individual or entity that submits a valid claim will receive. Payments will be based on the Plan of Allocation, which is available for review on the website. Important Information and Dates: Eligible consumers or businesses that want to sue the additional Settling Defendants regarding a particular component part must exclude themselves from Settlement Class(es) that they would otherwise be part of by March 16, 2017. Eligible consumers or businesses can object to the Plan of Allocation or one or more of the additional Settlements by March 16, 2017. Eligible consumers or businesses may submit a claim form online or by mail. The Court will hold a hearing on April 19, 2017, to consider whether to approve the Settlements. Settlement Class Counsel may also request reimbursement of costs and expenses as well as attorneys' fees of up to 27.5% of the Settlement Funds (after costs and expenses). For more information: Visit: www.AutoPartsClass.com Call: 1-877-940-5043 Write to: Auto Parts Settlements, P.O. Box 10163, Dublin, OH 43017-3163 MENARDS: Sued for Misclassifying Drivers as Contractors ------------------------------------------------------- Alexia Elejalde-Ruiz, writing for Chicago Tribune, reports that Menards has been slapped with a federal complaint alleging the home improvement chain misclassified its delivery drivers as independent contractors and therefore deprived them of workplace protections afforded to employees, a charge the company calls "ridiculous" and vows to fight. The complaint, filed on Dec. 22 by the National Labor Relations Board's Minneapolis regional office, also accuses Menards of violating federal labor law by maintaining a mandatory arbitration clause in its employee handbook to prohibit workers from filing class-action lawsuits in court and unfair labor practices charges with the NLRB. The NLRB's complaint is in response to a charge brought in August by the Office and Professional Employees International Union Local 153, which is based in New York and represents some 17,000 workers in a variety of positions, including office and clerical workers as well as vendors at Yankee Stadium. The union is affiliated with the AFL-CIO. The complaint adds to a growing list of cases examining who should be classified as employees eligible for workplace protections. Unlike employees, independent contractors are not covered by laws that provide for minimum wage, overtime pay, unemployment insurance, workers compensation and unionizing activities. "This is the way that Menards cuts their costs and we don't think it's fair," said Seth Goldstein, a Local 153 senior business representative who provided the Tribune with a copy of the NLRB's complaint. The NLRB's online docket shows the agency filed a complaint against Menards on Dec. 22 but does not include the contents of the document. NLRB representatives did not immediately respond to queries and a Freedom of Information Act request on Dec. 27 Menards, which is based in Eau Claire, Wis., and has some 280 stores, including 57 in Illinois, disputes the allegations of misclassification. "We feel that the NLRB is wrong," Menards said in a statement provided by spokesman Jeff Abbott. "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 plan to vigorously defend ourselves against these ridiculous allegations." It continued: "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. We believe that ultimately the charge will be dismissed because it lacks any merit." The misclassification complaint comes several months after Menards entered a settlement agreement with the NLRB, also spurred by charges filed by Mr. Goldstein, in which it agreed, among several provisions, to revise its employee handbook to make clear that its arbitration program doesn't constitute a waiver of rights to file class-action suits of unfair labor practice charges with the NLRB. Mr. Goldstein said he learned later that "several thousand" delivery drivers classified as independent contractors would not be covered by the agreement. He estimates that each Menards store has three or four drivers, also called "haulers," who deliver purchased goods to customers' homes. Mr. Goldstein said Menards exercises enough control over its drivers that they should be classified as employees. In addition to requiring drivers to sign arbitration and class-action-waiver agreements, Mr. Goldstein said Menards requires drivers to use a certain design of truck, prohibits them from refusing loads, and has a noncompete clause that limits their right to work for competitors within 25 miles of the store. According to the NLRB complaint, the agency wants Menards to rescind or revise any portions of any agreements with delivery drivers that purport to classify them as independent contractors and to revise its mandatory arbitration clause to clarify that the drivers can still engage in class actions. A hearing before an administrative law judge is scheduled for April 4 in Minneapolis. METAL PARTNERS: 7th Cir. Grapples with Article III Questions ------------------------------------------------------------ Bradley J. Andreozzi, Esq. -- bradley@drinkerbiddle.com -- and Iman Boundaoui, Esq. -- Iman.Boundaoui@dbr.com -- of Drinker Biddle & Reath LLP, in an article for The National Law Review, report that Article III of the U.S. Constitution limits the jurisdiction of federal courts to "cases" and "controversies." U.S. Const., Art. III, Sec. 2. Accordingly, as the Supreme Court recently clarified, "[i]f an intervening circumstance deprives the plaintiff of a personal stake in the outcome of the lawsuit, at any point during litigation, the action can no longer proceed and must be dismissed as moot." Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016). In the long-awaited decision, the Campbell- Ewald majority held that an unaccepted offer of complete relief under Rule 68, alone, does not moot a claim and thus does not deprive a court of Article III jurisdiction over the action. However, in so ruling, the majority emphasized that the fact that the offer was unaccepted was critical to its decision, thus leaving unanswered a host of scenarios in which a defendant makes an actual full payment or an unconditional tender to the plaintiff, and the court enters judgment for the plaintiff in that amount. Earlier in December, a district court grappled with one of those scenarios in Wendell H. Stone Company, Inc. v. Metal Partners Rebar LLC, No. 16-8285, 2016 U.S. Dist. LEXIS 167574 (N.D. Ill. Dec. 5, 2016). The court was faced with the question of whether a defendant's actual deposit of funds under Rule 67 could moot the plaintiff's claims. Under Federal Rule of Civil Procedure 67, a defendant may, by leave of court, deposit with the court all or part of a monetary judgment sought as relief. Fed. R. Civ. P. 67(a). Accordingly, the court accepted the Defendant's deposit of the entire amount of the statutory damages that the defendant claimed would fully satisfy the relief sought by the plaintiff (according to Defendant's calculation) -- a whopping $30,500. As for whether that deposit mooted the plaintiff's claims, the Court held that it did not. By so holding, the court concluded that even an actual deposit of the full amount owed to the plaintiff could not render its claims moot -- a question the Seventh Circuit itself has not yet addressed. The court based its ruling on Chapman v. First Index, Inc. 796 F.3d 783 (7th Cir. 2015), which held that an unaccepted Rule 68 offer of judgment could not moot a claim, but which left open the question of whether a motion to deposit funds would be treated differently. The court's holding addresses that question and more -- stating not only that an unconditional motion to deposit funds fail to moot the plaintiff's claims, but also that the court's acceptance of the deposited funds fails to do so where the court declines to enter judgment in favor of the plaintiff. As an alternative basis for its ruling, the court noted that even if a defendant's deposit of funds could render a plaintiff's claim moot, here the plaintiff disputed the number of faxes it had received, and thus the court could not "determine definitively" whether the deposit of $30,500 provided complete relief. But the opinion suggests that this alternative holding was something of an afterthought, given the court's earlier holding that even a deposit of full compensation would not moot the individual or class claims. The court reasoned that giving defendants the ability to moot individual claims under Rule 67 would essentially give them the ability to "perpetually evade a class action by satisfying only [the plaintiff's] individual claim." That, it concluded, "would undermine the purposes of the class action device" by separating the interests of the proposed class representative from those of the putative class. It does not appear that the parties briefed whether that rationale is consistent with the Rules Enabling Act's command that the Rules of Civil Procedure not be applied in a way that would "enlarge or modify" substantive rights; as we discussed in a prior post, the Supreme Court's recent commentary on the Rules Enabling Act disapproves of doing so. Whatever the court's reasoning, it is clear that defendants are facing disparate outcomes in the wake of Campbell-Ewald. For example, as previously discussed, the Ninth Circuit in Chen v. Allstate, No. 13-16816 (9th Cir. April 12, 2016) held that a conditional offer tendering complete relief does not moot TCPA claims (failing to address the scenario of an unconditional tender of relief). On the other hand, as reported in November, the Second Circuit recently held that an entry of judgment pursuant to an offer of relief satisfying an individual plaintiff's claims does moot TCPA claims. Apparently, the scenarios identified in the majority and dissenting opinions in Campbell-Ewald will continue to play out in the endless foray of TCPA cases, resulting in disparate outcomes absent clearer guidance on the subject -- which may, once again, have to come from our highest Court. MJ-MC HOME: Sued in New York Over Failure to Pay Minimum Wages -------------------------------------------------------------- Gulchehra Abdujamilova, individually and on behalf of all others similarly situated v. MJ-MC Home Health Care Agency, Inc., Case No. 522586/2016 (N.Y. Sup. Ct., December 20, 2016), is brought against the Defendants for failure to pay minimum wage rate for hours worked in excess of forty in a work week, and to provide pay stubs and other wage notices that conform with the requirements of the New York Labor Law. MJ-MC Home Health Care Agency, Inc. operates a home health care agency that provides professional medical and non-medical home care services to the elderly. The Plaintiff is represented by: Gennadiy Naydenskiy, Esq. NAYDENSKIY LAW GROUP, P.C. 1517 Vodrhies Ave, 2nd Fl. Brooklyn, NY 11235 Telephone: (718)808-2224 Facsimile: (866) 261-5478 E-mail: naydenskiylaw@gmail.com NABORS INTERNATIONAL: Faces "Sicard" Suit Over Failure to Pay OT ---------------------------------------------------------------- Sherman Sicard, on behalf of himself and on behalf of all others similarly situated v. Nabors International, Inc., Case No. 4:16- cv-03693 (S.D. Tex., December 20, 2016), is brought against the Defendant for failure to pay plaintiff for work of more than 40 hours a week pursuant to the Fair Labor Standards Act. Nabors International, Inc. owns and operates the world's largest land-based drilling rig fleet and is a principle provider of offshore platform work-over and drilling rigs. The Plaintiff is represented by: Don J. Foty, Esq. KENNEDY HODGES, L.L.P. 4409 Montrose Blvd, Suite 200 Houston, TX 77006 Telephone: (713) 523-0001 Facsimile: (713) 523-1116 E-mail: DFoty@kennedyhodges.com NATIONAL COLLEGIATE: Jr. Hockey Players Have Option to File Suit ---------------------------------------------------------------- Evan Weiner, writing for SPORTSTalkFlorida, reports that junior hockey players in Canada want to get a minimum wage for their work instead of a small stipend. Junior hockey players in Canada want better work conditions which means they want more money than a small stipend. They want a minimum wage. There is a movement among minor league baseball players, college "student'athletes" and now junior players to get some money which is only fair because without them, there is no game. But courts and government agencies are not seeing it that way. In 2015, The National Collegiate Athletic Association got a big victory when the National Labor Relations Board denied a request by some present and some former Northwestern University football players to unionize, a decision that was welcomed not only by other colleges but in state legislatures as well. The National Labor Relations Board seemed more concerned about the industry of college sports rather than the athletes in college sports ruling that allowing the Northwestern football players to unionize would not promote uniformity and stability in labor relations and would potentially upset the balance of competition. Perhaps the board did not look at the early schedule of the 2015 college football season when powerhouses took on schools looking for a big payday and absorb a massive loss on the scoreboard. It was going to be tough to unionize for many reasons, one is the brief college career of four to five years and more importantly state legislatures like the one in Ohio have quickly written legislation to make sure so-called student athletes are not school employees. The term student-athlete is based on a fiction and it was a way to avoid paying students who played college sports and a way to get out of paying workman's compensation if a player was injured. The colleges and universities have always contended trading out a scholarship to take care of most of the costs of an education and room and board was a fair deal for the athletes. This probably isn't the last time that student-athletes will organize and try to improve their lot. There are some avenues open to them including launching an antitrust suit against the NCAA to try and get their share of the massive money pile. The World Junior Tournament is professional in every way except the player's paychecks. There is an international hockey tournament that is taking place in Montreal and Toronto. It is called the World Junior Tournament and features some of the best teenage players in hockey representing 10 countries including the United States and Canada. The tournament has all of the trappings of a professional presentation. The games will be played in National Hockey League arenas, will be shown on cable TV, has major tournament sponsors but there is one difference. Even though the players are the stars of the show and are responsible for people supporting the tournament through ticket sales, marketing and television partnerships, the stars of the show are getting virtually nothing for their work. They get a minor stipend. The teenagers want money from junior leagues in Canada. Brendan O'Grady is a lawyer who says he is representing 351 players in the Sam Berg, Lukas Walter class action suit against the operators of the Canadian Hockey League which consists of 60 franchises in the United States and Canada. Berg and Walter feel the owners are making millions of dollars from marketing partners, ticket sales and television rights and that the teenage players should have the right to share in the money which should be the local minimum wage. Meanwhile the province of British Columbia political class has decided what side they are supporting. The owners. There are six British Columbia based Western Hockey League teams. The BC players have been stripped of rights under The Employment Standards Act and do not have to be paid the provincial minimum, get holiday pay or have set working hours. They are amateurs in a seasonal job just like minor league baseball players who play for almost no money. The best 20 and under players in the world will bring in money for the junior tournament but will get almost nothing for their efforts. NEC TOKIN: March 2 Capacitors Settlement Fairness Hearing Set ------------------------------------------------------------- NOTICE OF PENDENCY OF CLASS ACTION, PROPOSED PARTIAL SETTLEMENT OF CLASS ACTION, FAIRNESS HEARING, AND RIGHT TO APPEAR If you directly purchased aluminum, tantalum or film capacitors between January 1, 2002 and July 22, 2015, you could be affected by a Class Action Settlement. Please read this notice carefully. A federal Court authorized this notice. This is not junk mail, an advertisement, or a solicitation from a lawyer 1. Why did I get this Notice? You have received this Notice because Defendants' records show you may have directly purchased Capacitors from one or more Defendant(s) or from a subsidiary agent, affiliate or joint venture of a Defendant from January 1, 2002 to July 22, 2015. The Court sent you this Notice for the following reason: Class members have the right to know about the partial settlement of a class action lawsuit, and about their legal rights and options, before the Court holds a Fairness Hearing to decide whether to grant final approval to the settlement. This Notice explains the lawsuit, the partial settlements, and your legal rights. It also explains what benefits from the partial settlements are available at this time, who is eligible to participate, and how to share in the settlements. If the Court approves one or more of the partial settlements and after any objections and appeals are resolved, Class Counsel will disburse the settlement fund in one or more distributions at a time to be determined by the Court. The Court has preliminarily approved the settlements. If you are a settlement class member, you have legal rights and options that you may exercise before the Court considers whether it will grant final approval to the proposed partial settlements at the Fairness Hearing. The Court will hold the Fairness Hearing on March 2, 2017 to decide whether each of the proposed partial settlements with each of the Settling Defendants is fair, reasonable, and adequate. The Court will also consider Class Counsel's request for payment of attorneys' fees and reimbursement of litigation expenses. If you wish to comment on (including object to) or exclude yourself from one or more of the partial settlements, you must do so following the procedures described below. If you do nothing, you will not receive any money from the partial settlements, but you will be bound by any final judgment concerning the Settling Defendants. 2. What is this lawsuit about? The lawsuit claims that Defendants entered into agreements to artificially raise, fix, or stabilize the prices of aluminum, tantalum, or film capacitors in violation of the federal antitrust law. Each of the Defendants, including the Settling Defendants, expressly denies that it violated any laws or engaged in any wrongdoing, except that on January 21, 2016, NEC TOKIN Corporation pleaded guilty to participating in a conspiracy to fix prices of certain electrolytic capacitors, and on June 9, 2016, Hitachi Chemical Co., Ltd. pleaded guilty to participating in a conspiracy to fix prices of certain electrolytic capacitors. Further information on the plea agreements entered into by NEC TOKIN Corporation and Hitachi Chemical Co., Ltd. are available at the website www.capacitorsantitrustsettlement.com. The Department of Justice ("DOJ") notified counsel for the Okaya Defendants on January 8, 2016 that its investigation into anticompetitive conduct in the film capacitor industry was ended with no action being taken. The DOJ also so informed the Court on March 2, 2016. Fujitsu Limited was never contacted by the DOJ in connection with its investigations into the capacitor industry and was never served with any form of document request or subpoena by DOJ. As of the time this notice is being sent, only the Settling Defendants have entered into settlements with Plaintiffs. To obtain more information about the claims in this lawsuit, you can view the complaint and other court documents in this case at www.capacitorsantitrustsettlement.com. 3. Why is this a class action, and who is involved? In a class action lawsuit, one or more people called "Named Plaintiffs" or "Class Representatives" sue on behalf of other people who have similar claims. The people and companies with similar claims together are a "Class" and are called "Class Members." In a class action, the court resolves the issues for all Class Members, except for those who exclude themselves from the Class. 4. Why are there settlements? The Court has not found in favor of Plaintiffs or Defendants. While the lawsuit is still pending before the United States District Court, the Plaintiffs and the Settling Defendants have agreed to settlements that, if approved, will bring the claims against the Settling Defendants to an end. That way, the Plaintiffs and Settling Defendants avoid the uncertainty of continuing the case between them, and avoid the cost and delay of further litigation, and Class Members will get the benefits of the settlements. 5. Why are the settlements "partial" settlements? Although the settlements with the Settling Defendants fully resolve the Class Members' claims against the Settling Defendants (see response to Question 16), the settlements only partially resolve the case, which will continue against the Non-Settling Defendants (see response to Question 6). For this reason, the settlements with the Settling Defendants are partial settlements. 6. Why is the lawsuit continuing if there are settlements? The Settling Defendants have agreed to settle this case. As of the time this notice is being sent, the Non-Settling Defendants have not agreed to settle, so the lawsuit will continue as a proposed class action against them. More money may become available in the future as a result of additional settlements with and/or a trial against the Non-Settling Defendants, but there is no guarantee this will happen. 7. What happens if the Plaintiffs later reach a settlement with the Non-Settling Defendants? The lawsuit will continue as a proposed class action against the Non-Settling Defendants on behalf of all Class Members. It cannot be known whether the Plaintiffs will prevail against the Non-Settling Defendants by proving the claims against them. If there are additional settlements in the future, there will be notice of those settlements as well. Depending on the timing of the notice(s) and Fairness Hearing(s) for any such settlements, the settlement funds received from the Settling Defendants and from any other Defendants who have settled may be distributed at the same time, in one or more distribution(s), to Class members who have submitted claims. Who Has the Right to Participate In The Partial Settlements and the Class Action Lawsuit? 8. Am I a Class Member who is part of the partial settlements and the ongoing class action lawsuit against the Non-Settling Defendants? In general, direct purchasers of Capacitors are Class Members, i.e. persons or entities (a) who are eligible for a payment from the proposed settlements when the funds are distributed, and (b) on whose behalf the lawsuit will continue against the Non-Settling Defendants, if they meet the following definition: All persons in the United States that purchased Capacitors (including through controlled subsidiaries, agents, affiliates or joint-ventures) from January, 1, 2002 through July 22, 2015 (the "Class Period") (excluding Defendants and governmental entities). 9. I'm still not sure if I am included. If you received this Notice, it is because you were listed as a potential Class Member. If you are still not sure whether you are included, you can get help by calling 1-866-903-1223. 10. Does it make a difference whether I purchased Capacitors from the Settling Defendants or a Non-Settling Defendant? No. As long as you fall within the definition of the Class in Question 8 above, you can participate in the partial settlements, and the ongoing lawsuit against the Non-Settling Defendants, regardless of which Defendant you purchased Capacitors from. 11. What are my rights as a Class Member? You may submit a Claim Form for a payment from the Settlement Fund (see Question 14). Or, you may exclude yourself from one or more of the settlements (see Question 20). You may also comment on or object to the proposed partial settlements and the request for litigation expenses (see Question 23), or attend the Court's Fairness Hearing to speak in support of or against the Court's final approval of the proposed partial settlements and the request for reimbursement of litigation expenses. Or, you may do nothing (see Question 26). The Settlement Benefits 12. What do the partial settlements provide? The Settling Defendants will make payments into an Escrow Account for the benefit of Plaintiffs and the Settlement Class. Counsel will use $200,000 from the Escrow Account for reimbursement of such costs, fees, and expenses related to the provision of notice to the Settlement Class Members. The Settling Defendants have made, or will make, payments into the Escrow Account for the benefit of Plaintiffs and the Settlement Class on the following schedule: -- Fujitsu Limited will pay $2,000,000 in one lump sum payment within twenty business days after the Court grants preliminary approval of its settlement. -- NEC TOKIN will pay $24,0000,000 in five installment payments made over four (4) years, as follows: (a) on or before July 29, 2016 -- $4 million; (b) on or before May 15, 2017 -- $5 million; (c) on or before May 15, 2018 -- $5 million; (d) on or before May 15, 2019 -- $5 million; and (e) on or before December 31, 2019 -- $5 million. -- Nitsuko will pay $100,000 into the Escrow Account within thirty (30) calendar days after the Court grants preliminary approval of its settlement, and additional payments will be made on the following schedule: Nitsuko will pay $450,000 into the Escrow Account 30 days after the final judgment becomes final; Nitsuko will pay $350,000 into the Settlement Fund within 365 days after the final judgment becomes final; Nitsuko will pay $200,000 within 427 days of when the final judgment becomes final. -- The Okaya Defendants will pay $100,000 within thirty (30) calendar days of the grant of preliminary approval of its settlement and $ 3,550,000 within thirty (30) calendar days after the Effective Date of the settlement. -- ROHM paid $1,850,000 into the Escrow Account within ten days following the execution of its settlement with Class Counsel. As a Settlement Class Member, you will give up, or "release," your claims against the Settling Defendants. This release includes any claims made or that could have been made arising from the facts alleged in this lawsuit. The releases are described in more detail in the Settlement Agreements and in Question 16 below. You can view or download copies of the Settlement Agreements at the website http://saverilawfirm.com/our- cases/capacitors/. 13. How much money can I get from the partial settlement? Class Members who submit a Claim Form will be eligible to receive a share of the Settlement Fund when they are distributed based on a formula utilizing each Class Member's relative share of Capacitors purchased during the relevant time period, for which Class Members have sought compensation. The allocation formula for the distribution of the Settlement Fund has not yet been determined. At a later time, you will receive another notice describing the allocation formula and you will be given an opportunity to comment and/or object to it. Submitting A Claim Form for a Share of the Partial Settlement 14. How can I get money from the partial settlement? To receive money from the partial settlements, you must complete and submit a Claim Form, either online at www. capacitorsantitrustsettlement.com, or by mail. A copy of the Claim Form is included with this Notice. Please read this Notice and the Claim Form carefully. If any of the Defendants in this case have a record of you purchasing Capacitors from them between January 1, 2002 and July 22, 2015, you will be mailed a claim form for your review that includes details about these purchases. You can either approve the purchase information on your claim form, or, if you disagree with this information, you can submit records of your purchases. You must complete and submit the form online no later than February 13, 2017, or complete the included form manually, sign it, and mail it postmarked no later than February 13, 2017, to the Notice and Claims Administrator at the address listed in Question 28 of this Notice. If necessary, you may download and print out a Claim Form from the website www.capacitorsantitrustsettlement.com. If you have any problems with the Claim Form or questions about how to submit your claim, please call the Notice and Claims Administrator at the telephone number printed at the bottom of this page. If you fall within the Class definition, you may receive money from the partial settlements. 15. When will I get my payment(s)? As noted above, the Court is scheduled to hold a final Fairness Hearing on March 2, 2017, to decide whether to approve the proposed partial settlements and the request for the payment of attorneys' fees and the reimbursement of litigation expenses. The Court may reschedule the Fairness Hearing or change any of the deadlines described in this Notice. Please check the website, www.capacitorsantitrustsettlement.com, for news of any such changes. Settlement payments to Settlement Class Members will be distributed after one or more of the settlements is approved, and after appeals, if any, are resolved in the Settlement Class' favor. Class Counsel will remit the funds, through the Notice and Claims Administrator, in one or more distributions that may include future settlements with Non-Settling Defendants. Updates regarding the partial settlements and when payments may be made will be posted on the settlement website, www.capacitorsantitrustsettlement.com. 16. What am I giving up to get payment(s) under one or more of the partial settlements? If you are a Settlement Class Member, unless you exclude yourself from one or more of the settlements with the Settling Defendants, you will remain in the Class, and that means that you can't sue, continue to sue, or be part of any other lawsuit against the Settling Defendants about the legal claims in this case. It also means that all of the Court's orders will apply to you and legally bind you, and that you agree to the following "Releases of Claims," which describe exactly the legal claims that you give up if you get settlement benefits: Upon one or more of the Settlement Agreements becoming effective, the Named Plaintiffs and Class Members who do not otherwise properly exclude themselves ("Releasors") agree that the Settling Defendants and their officers, directors, affiliates, and employees ("Releasees") shall be completely released, acquitted, and forever discharged from any and all manner of claims, demands, rights, actions, suits, and causes of action, whether class, individual, or otherwise in nature (whether or not any Class Member has objected to the Settlement Agreements or makes a claim upon or participates in the Settlement Fund, whether directly, representatively, derivatively, or in any other capacity), damages whenever incurred, liabilities of any nature whatsoever, including costs, expenses, penalties, injuries, and attorneys' fees that Releasors, or any one of them, whether directly, representatively, derivatively, or in any other capacity, ever had, now have, or hereafter can, shall, or may have against the Releasees, whether known or unknown, relating in any way to any transaction, event, conduct, circumstance, action, failure to act, or occurrence of any sort or type arising out of or related to the Class Action and any joint and several liability arising from the conduct of any of the Defendants in the Class Action prior to the Effective Date arising under or relating to any federal or state antitrust laws, unfair competition, unfair practices or trade practice laws, civil conspiracy, or common law or statutory fraud claims concerning the purchase, pricing, selling, discounting, marketing, manufacturing and/or distributing of Capacitors ("the Released Claims"). To view the legally binding terms about the scope of the Released Claims, please refer to the proposed Settlement Agreements, which are available at www.capacitorsantitrustsettlement.com. By participating in the partial settlements you are not giving up your rights against the Non-Settling Defendants. The Lawyers Representing You 17. Who represents me in this case? The Court appointed the following law firm as Interim Lead Class Counsel (also referred to as "Plaintiffs' Counsel") to represent the Class: Joseph R. Saveri JOSEPH SAVERI LAW FIRM, INC. 555 Montgomery Street, Suite 1210 San Francisco, CA 94111 (415) 500-6800 jsaveri@saverilawfirm.com 18. Should I get my own lawyer? You do not need to hire your own lawyer because Plaintiffs' Counsel are working on your behalf. If you want your own lawyer, you may hire one, but you will be responsible for any payment for that lawyer's services. For example, you can ask your lawyer to appear in Court for you if you want someone other than Plaintiffs' Counsel to speak for you. You may also appear for yourself without a lawyer. 19. How will the lawyers be paid? At the Fairness Hearing, Plaintiffs' Counsel will seek payment of $8,150,000 for legal fees for the work they have done in this case and $3,000,000, for reimbursement of their reasonable litigation expenses, principally expert witness expenses. If the Court awards these payments, they will be paid from the balance of the settlements after deduction of $200,000 for expenses related to the provision of notice to the Settlement Class Members, as and when payments are received from the Settling Defendants. If the partial settlements are approved, payment of attorneys' fees and expenses to Plaintiffs' Counsel are made as and when such payments are received from the Settling Defendants. You do not have to pay any of Class Counsel's fees, costs or expenses. Excluding Yourself From the Settlements and/or the Ongoing Lawsuit 20. How do I get out of the settlements and/or the ongoing class action lawsuit against the Non-Settling Defendants? Excluding yourself from one or more of the partial settlements: If you fall within the Class definition but wish to keep the right to sue or continue to sue one or more of the Settling Defendants (at your own expense) about the legal issues in this case, then you must take steps to get out of the Settlement Class. This is called excluding yourself from, or opting out of, the class. Opting out of the class for purposes of the partial settlements described in this notice will not affect your right to remain in the proposed Class for purposes of the continuing litigation against the Non-Settling Defendants. You may also opt out of the Settlement Class with respect to one or more Settling Defendants, but choose to remain in the Settlement Class with respect to the other Settling Defendants. To exclude yourself from (opt out of) the partial settlement with one or more Settling Defendants, you must send an Opt-Out Request letter to the Notice and Claims Administrator at the address below saying that you want to be excluded from the Settlement Class in In re Capacitors Antitrust Litigation with your full legal name and address, that you purchased Capacitors directly from one or more Defendants, and indicating the settlements from which you wish to opt out. You must include the following statement with your Opt-Out-Request Letter: "I want to be excluded from the Capacitors Antitrust Litigation class action settlement with [SPECIFY THE NAME OF EACH SETTLING DEFENDANT WHOSE SETTLEMENT YOU WISH TO EXCLUDE YOURSELF FROM]. I understand that by so doing, I will not be able to get any money or benefits from the settlement with that/those Settling Defendant(s) in this case." This Opt-Out Request Letter must be signed and dated and include your telephone number. If you request to be excluded from one or more of the partial settlements with Settling Defendants, you will not be legally bound by the settlement with that/those Settling Defendant(s). You will be able to sue (or continue to sue) that/those Settling Defendant(s) in the future about the legal claims in this case. If you ask to be excluded from one or more of the settlements with Settling Defendant(s), you will not get any payment from that settlement, and you cannot object to that settlement. If you choose to remain in some or all of these settlements, you will have the right to remain in or exclude yourself from any future settlement classes or any class certified by the Court. Exclusion/Opt-Out Request Mailing Information To exclude yourself from one or more of the settlements with Settling Defendant(s), you must submit your Opt-Out Request letter postmarked via First Class United States Mail (or United States Mail for overnight delivery) no later than February 13, 2017 (or received by the Notice and Claims Administrator by that date if sent by fax or e-mail) at the following address: Notice and Claims Administrator In re Capacitors Antitrust Lawsuit PO Box 2563 Faribault, MN 55021-9563 Fax #: 507-333-4330 Email Address: info@capacitorsantitrustsettlement.com You cannot exclude yourself (opt out) by telephone. 21. If I don't exclude myself, can I sue the Settling Defendants for the same thing later? No. If you are a Class member, unless you exclude yourself from one or more of the settlements with one or more of the Settling Defendants, you give up the right to sue all of the Settling Defendants for the claims that the partial settlement resolves as more fully described in Question 16 above. If you have a pending lawsuit against any of the Defendants, speak to your lawyer in that lawsuit immediately, because you may need to exclude yourself from the Class(es) to continue your own lawsuit. The process for excluding yourself from one or more of the settlements is described in the preceding section. 22. If I exclude myself, can I get money from this case? Yes and no. If you exclude yourself from one or more of the settlements with Settling Defendants, you will not receive money under that settlement even if you submit a Claim Form, but you remain eligible for payment related to any settlements from which you did not opt out, including any share of the money recovered, if any, from Non-Settling Defendants in the future. Commenting On Or Objecting To The Settlement 23. How do I tell the Court that I like or don't like the proposed settlement and may I speak at the hearing? If you're a Class Member, you can comment on or object to the proposed partial settlements if you like or don't like any part of it, including the requests for attorneys' fees and reimbursement of expenses. You can give reasons why you think the Court should or should not approve it. The Court will consider your views. To comment or to object, you must send a letter to the Notice and Claims Administrator with your comment(s) or objection(s) to the proposed settlements in In re Capacitors Antitrust Litigation. Be sure to include: -- Your name, address, telephone number, email address and signature. -- A statement signed under penalty of perjury that you are a member of the Settlement Class. -- A detailed statement of your comment(s) or objection(s), including the grounds for your objection(s), if any, together with any documents you think support it. -- You do not need to attend or speak at the Fairness Hearing (described in Question 24 below) in order for your comments or objections to be considered. If you would like to speak at the Fairness Hearing about your comments or objections to the settlement, you must add to your letter a statement that you intend to appear and speak at the hearing, for example, by stating "This is my Notice of Intention to Appear in In re Capacitors Antitrust Litigation." If you wish for the Court to consider your comment(s) or objection(s), you must mail the comment(s) or objection(s), along with a request to speak at the Fairness Hearing (if any), by First Class U.S. Mail, postmarked no later than February 13, 2017, to: Notice and Claims Administrator In re Capacitors Antitrust Lawsuit PO Box 2563 Faribault, MN 55021-9563 You will have no right to speak at the Fairness Hearing about these settlements if you choose to exclude yourself from the settlements, because a settlement no longer affects you if you opt out of it. The Court's Fairness Hearing 24. When and where will the Court decide whether to approve the settlements? The Court will hold a Fairness Hearing on March 2, 2017 at 10:00 AM in Courtroom 11, on the 19th Floor of the United States District Court located at 450 Golden Gate Avenue in San Francisco, California. At the Fairness Hearing, the Court will consider each of the proposed settlements and determine whether it is fair, reasonable, and adequate, and will consider the request for attorneys' fees and litigation expenses. If there are written comments or objections, the Court will consider them. The Court will decide whether to allow people who have raised objections or comments to speak at the hearing. After the Fairness Hearing, the Court will separately decide whether to approve the partial settlements. The Court may reschedule the Fairness Hearing or change any of the deadlines described in this Notice. Be sure to check the website, www.capacitorsantitrustsettlement.com, for news of any such changes. 25. Do I have to come to the Fairness Hearing? No. Plaintiffs' counsel will be present at the Fairness Hearing to answer any questions the Court may have. You are welcome to come at your own expense. If you send comments or objections to the settlements, you don't have to come to Court to talk about it. As long as you mailed your written comments or objections on time, the Court will consider them. You may also pay your own lawyer to attend, but it is not necessary. If You Do Nothing 26. What happens if I do nothing at all? If you are a Class Member and you do nothing, you will get no money from the partial settlements with the Settling Defendants and any claims you might have against the Settling Defendants for the allegations in this case will be released unless you separately write to exclude yourself (following the instructions in Question 20). This means that if you do nothing, you will not be able to collect any damages from the Settling Defendants for the alleged agreements to raise, maintain, or stabilize the prices of Capacitors in this lawsuit or any other lawsuit. You will not receive money from the partial settlements unless you submit a Claim Form (following the instructions in Question 14). To qualify to receive any money from the settlements with the Settling Defendants, you must submit a Claim Form and follow the instructions in Question 14. Your claim must be filed online or postmarked by mail by February 13, 2017. Getting More Information 27. Are more details about the settlements and the lawsuit available? Yes. This Notice summarizes the proposed settlements and the ongoing lawsuit against the Non-Settling Defendants. More details about the settlements are in the proposed Settlement Agreements themselves. You can see or print copies of the Settlement Agreements at www.capacitorsantitrustsettlement.com. More information about the ongoing class action lawsuit, including the Plaintiffs' class action complaint, the Defendants' answers to the complaint, and other case documents, can also be viewed or printed at www.capacitorsantitrustsettlement.com. 28. How do I get more information? The website www.capacitorsantitrustsettlement.com allows you to complete and submit a Claim Form online, and provides answers to common questions about the lawsuit, the partial settlements, Claim Forms, and other information to help you determine whether you are a Class Member, whether you are eligible for a payment, and when settlement funds will be distributed. You may also submit a written Claim Form at the address listed below, or call or write to the Notice and Claims Administrator with your questions at: Notice and Claims Administrator In re Capacitors Antitrust Lawsuit PO Box 2563 Faribault, MN 55021-9563 Telephone: 1-866-903-1223 PLEASE DO NOT CONTACT THE COURT. YOU SHOULD DIRECT ANY QUESTIONS YOU MAY HAVE ABOUT THIS NOTICE OR THE SETTLEMENT TO THE NOTICE AND CLAIMS ADMINISTRATOR AND/OR TO PLAINTIFFS' COUNSEL. You may also seek the advice and counsel of your own attorney at your own expense, if you desire. NEW LONDON, CT: Implements Changes Following Housing Class Action ----------------------------------------------------------------- Greg Smith, writing for The Day, reports that changes at the New London Housing Authority in 2016 included the departure of the housing authority's director. Most of the changes can be traced to a 2014 court-stipulated judgment that resolved a nearly decade long class-action lawsuit brought against the authority on behalf of the tenants complaining about the abysmal conditions at the 124-family, federally subsidized Thames River Apartment complex on Crystal Avenue. The agreement ordered new homes for Crystal Avenue residents. The housing authority enlisted a company to find a suitable replacement site for an affordable housing complex. Earlier in 2016, the company purchased the former Edgerton School property but has yet to gain land-use approval. Meanwhile, the U.S. Department of Housing and Urban Development deemed the housing authority substandard, which in turn prompted a renewed push for action to get tenants out of the Crystal Avenue high-rises. Housing authority Director Sue Shontell filed a discrimination complaint against the city and board members. The housing authority terminated Ms. Shontell's contract and hired an interim director. The board has partnered with the city to obtain approvals to hand out housing vouchers to the tenants. NEW ORIENTAL: Feb. 13 Lead Plaintiff Bid Deadline ------------------------------------------------- Pomerantz LLP disclosed that a class action lawsuit has been filed against New Oriental Education & Technology Group Inc. and certain of its officers. The class action, filed in United States District Court, District of New Jersey, is on behalf of a class consisting of all persons or entities who purchased or otherwise acquired New Oriental American Depositary Receipts between September 27, 2016 and December 1, 2016, both dates inclusive, seeking to recover compensable damages caused by defendants' violations of the Securities Exchange Act of 1934. If you are a shareholder who purchased New Oriental ADRs during the Class Period, you have until February 13, 2017 to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at www.pomerantzlaw.com. To discuss this action, contact Robert S. Willoughby at -- rswilloughby@pomlaw.com -- or 888.476.6529 (or 888.4-POMLAW), toll free, ext. 9980. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and number of shares purchased. New Oriental is a Cayman Islands corporation headquartered in Beijing, People's Republic of China ("PRC"). New Oriental provides private educational services under the New Oriental brand in the PRC. The Complaint alleges that throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (1) New Oriental engaged in college application fraud; and (2) as a result, defendants' statements about New Oriental's business, operations and prospects were materially false and misleading and/or lacked a reasonable basis at all relevant times. On December 2, 2016, Reuters published a report detailing allegations of academic fraud at the company. Specifically, Reuters reported that eight former and current New Oriental employees informed Reuters that New Oriental "engaged in college application fraud, including writing application essays and teacher recommendations, and falsifying high school transcripts." On that same day, Reuters reported that the American International Recruitment Council, which certifies agencies that recruit foreign students on behalf of U.S. colleges, will investigate the company in response to the Reuters report. On this news, shares of the Company fell $6.99 per share or over 14% from its previous closing price to close at $42.00 per share on December 2, 2016, damaging investors. The Pomerantz Firm, with offices in New York, Chicago, Florida, and Los Angeles, is acknowledged as one of the premier firms in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, the Pomerantz Firm pioneered the field of securities class actions. Today, more than 80 years later, the Pomerantz Firm continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. The Firm has recovered numerous multimillion-dollar damages awards on behalf of class members. See www.pomerantzlaw.com NEW YORK: 12,000 Seniors, Disabled May Get Rent Rollbacks --------------------------------------------------------- Amy Zimmer, writing for dnainfo, reports that more than 12,000 seniors and disabled New Yorkers could be eligible for retroactive rent rollbacks and rebates if they were wrongfully terminated from the city's rent freeze program, according to the legal team that filed a class action lawsuit against the city's Department of Finance. The Finance Department is expected to send letters to these individuals in early 2017 stating that they may be entitled to a rent reduction and credit, said Donna Dougherty, of JASA, a nonprofit that serves seniors across the city. Many could receive benefits that are retroactive, dating back to when their benefits were lost. "We want to keep people in their homes, in their communities and in affordable housing," Ms. Dougherty said. "People could be getting a reduction in their rent -- $100 or $200. It's a huge deal if you're on a fixed income." The pending settlement stems from a case Dougherty filed two years ago, in conjunction with Cardozo Bet-Tzedek Legal Services and Northern Manhattan Improvement Corporation Legal Services, against the Finance Department on behalf of eight seniors and disabled individuals enrolled in the city's rent freeze program. They had either been terminated from the program for failing to re-register in time or were reinstated in the program, but at a much higher rent. The lawsuit alleged that the Department of Finance was administering the program in violation of the Americans with Disabilities Act and their constitutional due process rights. Under the program, individuals are required to re-certify every one or two years, depending on how long their lease renewal covers. They have a six-month window to do so. But the lawsuit alleged that the individuals, who suffered from a range of issues including dementia or other illnesses that land people into frequent hospital stays, should have had "reasonable accommodations" under ADA to extend the window beyond six months. One of Ms. Dougherty's clients, for instance, a woman in her 80s with schizophrenia and early stage dementia, went off her medication and was having an episode that landed her in and out of hospitals over a nine-month period. She ended up missing her six-month window to re-certify the rent freeze for her Sunnyside apartment. "She was finally stabilized at home when we got involved. She ended up in housing court because her landlord sued," Dougherty recounted. "Department of Finance said she can reapply as a new applicant. But the rent jumped $300." JASA helped provide the woman with funds to keep her in her apartment as the organization fought for her right to roll back her rent. "She almost gave up. She almost moved out. She didn't know how to pay the rent," Ms. Dougherty said. "It was too much for her -- the stress of it all. We're hoping to take that burden." In September, a federal judge granted class certification to the group -- which is believed to include roughly 12,000, Ms. Dougherty said, explaining that the parties are still discussing details about how the rent credit program will be rolled out. According to court papers, nearly 600 individuals were terminated from the program because they failed to re-certify and were subsequently certified on a new application for a new rent freeze -- but at a significantly higher rent amount. Finance Department records also indicate that roughly 11,500 individuals -- who are apparently still alive and have not moved or lost their benefit eligibility -- were terminated from the rent freeze program for failure to certify and their benefits were never reinstated, court papers show. "We know those 600 will be examined for retroactive relief," Ms. Dougherty said. "And we want to get the word out. If you were in the hospital or your relative suffered from dementia and you didn't know and you found their mail from a year ago [about re-certification], this might help." The Finance Department administers two programs that freeze rent for certain low-income New Yorkers: the Senior Citizen Increase Exemption (SCRIE) for those 62 years old and older, and the Disability Rent Increase Exemption (DRIE). For both programs, household incomes must be under $50,000 a year. The program aims to preserve affordable housing for those who would be unable to foot rent increases due to their age or disability since they are often on fixed incomes. The landlord receives a tax credit covering the difference between the tenant's frozen rate and the legal rent. Because the settlement yet was not finalized, the Department of Finance declined to comment. NICOLET RESTAURANT: 7th Circuit Rules on Article III Injury Issue ----------------------------------------------------------------- Barry Goheen, Esq., Paige Nobles, Esq., Lawrence Slovensky, Esq., of King & Spalding, in an article for JDSupra, report that in Meyers v. Nicolet Restaurant of De Pere, LLC, an opinion issued on December 13, 2016, the United States Court of Appeals for the Seventh Circuit held that a proposed class action suit brought under the Fair and Accurate Credit Transactions Act ("FACTA") should be dismissed due to the named plaintiff's failure to establish Article III standing. The Court applied the Supreme Court's May 2016 decision Spokeo, Inc. v. Robins to conclude that the plaintiff had not suffered a concrete injury-in-fact simply by asserting a bare statutory violation, reasoning that "Congress' judgment that there should be a legal remedy for the violation of a statute does not mean each statutory violation creates Article III injury." Rather, the statutory violation must cause the plaintiff concrete harm. Background The Meyers case is one of two FACTA class action suits the same plaintiff filed in April 2015. Both suits contend that the defendant failed to truncate credit card receipts as required by FACTA, the 2003 amendment to the Fair Credit Reporting Act that prohibits the display of certain credit and debit card information in printed receipts. Meyers sought only statutory damages for himself and on behalf of the putative class based on a restaurant's alleged statutory violations. He did not allege that anyone else received a copy of the receipt or that he suffered identity theft of any kind as a result. The district court denied the motion for class certification and Meyers appealed. NISSAN: Settles Altima Melting Dashboard Class Action in Florida ---------------------------------------------------------------- David Wood, writing for CarComplaints.com, reports that a Nissan Altima melting dashboard lawsuit has been preliminarily settled over 2008-2009 Altima dashboards that melt, crack, get sticky and shine under the Florida sun. The class-action lawsuit covers Florida residents only because of the amount of sunlight and heat that damages the Altima dashboards. In the lawsuit, plaintiffs Tracy Sanborn and Louis Lucrezia claim their Altima dashboards were so shiny and melted that a safety hazard existed from the glare off the windshield. Although the settlement helps Florida residents only, more legal proceedings may be seen in the future as attorneys say other Nissan models have problems with melting dashboards outside of Florida. The Altima dashboards are allegedly so shiny that at least two drivers have been involved in crashes due to the glare from the windshield. According to the plaintiffs, Nissan knew the plastic skins used in Altima dashboards weren't formulated for high levels of Florida heat and humidity and should have tested the materials in thermo- hygrostatic chambers or environmental temperature/humidity chambers. To Nissan, the melting shiny dashboards are fine and the problem comes from "a few isolated consumer complaints about the dashboard appearance" that don't cause safety issues. However, the plaintiffs say Nissan, at the least, should have told consumers in hot humid states about the dashboards so those customers could have done something about the dashboards while the cars were under warranty. Nissan denies there is anything wrong with the dashboards but has agreed to settle to avoid the expense of a trial. The lawsuit alleges the melted Altima dashboards can cost $2,000 to replace, a cost Nissan has generally been refusing to pay. According to the plaintiffs, owners also experience problems when trying to sell or trade their cars due to the dashboards. To be reimbursed for everything other than $250, an owner will need to provide proof of payment related to the melting dashboard and submit that information with the claim form. If proof of payment cannot be supplied, Nissan says to send them the name of the Nissan dealership that did the dashboard work. The lawsuit alleges the Nissan Altima dashboards degrade into a "soft, gooey, shiny thing" that creates a dangerous glare, something numerous Altima owners in Florida have complained about. "The dash got sticky and shiny first and then I started seeing cracks which spread all over. I have caulked and now covered with a mat but want it replaced. I currently have only 80k miles; started seeing this about 60k miles. Nissan should cover this at no charge." - 2008 Nissan Altima owner / Lynn Haven, Florida "It is cracking like a spiderweb and little plastic pieces are chipping off. It looks like it will cost over a thousand dollars to have fixed as the dashboard must be entirely replaced. It totally devalues the car and looks horrible. Apparently others have had the same problem but Nissan does not care. Unbelievable, as I would never buy another one if I have to pay for this ridiculous repair. Very disappointed." - 2008 Nissan Altima owner / Delray Beach, Florida Another Florida Altima owner says that in addition to the glare, the smell of the melting plastic is adding to preexisting health problems. "Honestly is a really dangerous situation driving like this every day to work and the reflection of the dashboard on the inside windshield is becoming a real pain in the ass and also my life into this vehicle, please Nissan dealer do something about this, been using this vehicle since day one and now it's melting everywhere and the smell of plastic also toxic, have asthma, too much money to replace the whole dash!" -- 2008 Nissan Altima owner / Miami, Florida According to the plaintiffs, Nissan knew or should have known the dashboards were defective based on a constant flow of complaints, yet the automaker failed to inform consumers about the problem. An outside expert hired by the plaintiffs claims affected Altima owners should receive $46.6 million to $53.7 million in damages, or between $1,439 to $1,774 per owner. That's a lot of money, but the same expert estimates Nissan made about $190.7 million in profits from its sale of Altimas in Florida. The settlement will reimburse Florida Altima owners and lessees for the cost to replace the dashboards minus $250. If an owner cannot cover the $250 cost, the consumer should take the car to a Nissan dealer for a quote to replace the dashboard and submit the written quote with the claim form. The Altima dashboard lawsuit includes all consumers who are residents of, and purchased or leased a new or used 2008-2009 Nissan Altima in Florida. Altima owners have until April 29, 2017, to have the dashboard replaced or at the least, Nissan must inspect and document damage to the dashboard by that date. The 2008-2009 Nissan Altima melting dashboard lawsuit was filed in the U.S. District Court for the Southern District of Florida - Tracy Sanborn and Louis Lucrezia v. Nissan North America, Inc. The plaintiffs are represented by the Gibbs Law Group and Greg Coleman Law. If you live in Florida and own or lease a 2008-2009 Nissan Altima, learn more about the settlement at FloridaAltimaClassActionSettlement.com. The company, which helps insurers comply with regulations, said on Dec. 7 that the court issued a temporary restraining order related to a class action stockholder lawsuit but that it still hoped to pay the dividend in January. OCWEN FINANCIAL: March 20 Class Action Opt-Out Deadline Set ----------------------------------------------------------- UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 14-CIV-81057-WPD IN RE OCWEN FINANCIAL CORPORATION SECURITIES LITIGATION SUMMARY NOTICE OF PENDENCY OF CLASS ACTION TO: ALL PERSONS AND ENTITIES WHO PURCHASED OR OTHERWISE ACQUIRED OCWEN FINANCIAL CORPORATION COMMON STOCK FROM MAY 2, 2013 THROUGH DECEMBER 19, 2014, INCLUSIVE, AND WERE DAMAGED THEREBY (THE "CLASS") YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules of Civil Procedure and an Order of the United States District Court for the Southern District of Florida, that the above- captioned action ("Action") against Ocwen Financial Corporation, William C. Erbey and Ronald M. Faris ("Defendants"), has been certified as a class action on behalf of the Class, except for certain persons and entities that are excluded from the Class by definition as set forth in the full printed Notice of Pendency of Class Action ("Notice"). Lead Plaintiff Sjunde AP-Fonden and additional named plaintiff Jay E. Thren have been certified by the Court to represent the Class. IF YOU ARE A MEMBER OF THE CLASS, YOUR RIGHTS WILL BE AFFECTED BY THIS LAWSUIT. The full printed Notice is currently being mailed to known Class Members. If you have not yet received a full printed Notice, you may obtain a copy by downloading it from the website www.ocwensecuritieslitigation.com, or by contacting the Administrator: Ocwen Financial Corporation Securities Litigation c/o A.B. Data, Ltd. P.O. Box 173027 Milwaukee, WI 53217 (866) 905-8125 info@ocwensecuritieslitigation.com If you did not receive the Notice by mail, and you are a member of the Class, please send your name and address to the Administrator so that if any future notices are disseminated in connection with the Action, you will receive them. Inquiries, other than requests for the Notice, may be made to Court-appointed Class Counsel: Sharan Nirmul, Esq. Richard A. Russo, Jr., Esq. KESSLER TOPAZ MELTZER & CHECK, LLP 280 King of Prussia Road Radnor, PA 19087 Telephone: (610) 667-7706 Facsimile: (610) 667-7056 www.ktmc.com If you are a Class Member, you have the right to decide whether to remain a member of the Class. If you choose to remain a member of the Class, you do not need to do anything at this time other than retain your documentation reflecting your transactions in Ocwen common stock. You will automatically be included in the Class, and you will be bound by the proceedings in this Action, including all past, present and future orders and judgments of the Court, whether favorable or unfavorable. If you are a Class Member and do not wish to remain a member of the Class, you must take steps to exclude yourself from the Class. If you timely and validly request to be excluded from the Class, you will not be bound by any orders or judgments in the Action, and you will not be eligible to receive a share of any money which might be recovered in the future for the benefit of the Class. To exclude yourself from the Class, you must submit a written request for exclusion postmarked no later than March 20, 2017 in accordance with the instructions set forth in the full printed Notice. Pursuant to Rule 23(e)(4) of the Federal Rules of Civil Procedure, it is within the Court's discretion as to whether a second opportunity to request exclusion from the Class will be allowed if there is a settlement or judgment in the Action. Further information may be obtained by contacting the Administrator or visiting the website www.ocwensecuritieslitigation.com. Please Do Not Call or Write the Court with Questions. DATED: DECEMBER 26, 2016 BY ORDER OF THE COURT UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA PAM BONDI: New Prosecutor Will Investigate Complaint ---------------------------------------------------- WCTV reports that Gov. Rick Scott has assigned a complaint filed against Attorney General Pam Bondi to a prosecutor in southwest Florida. The complaint stems from scrutiny in 2016 over a $25,000 campaign contribution Bondi received from President-elect Donald Trump in 2013. Bondi asked for the donation around the same time her office was being asked about a New York investigation of alleged fraud at Trump University. A Massachusetts attorney filed numerous complaints against Bondi, including one that asked State Attorney Mark Ober to investigate Trump's donation. Ober asked Scott in September to appoint a different prosecutor because Bondi used to work for him. Scott assigned the case December 23 to State Attorney Stephen Russell, who has one year to decide whether the complaint has any merit. PARK WEST: Does Not Properly Pay Workers, "Balderrama" Suit Says ---------------------------------------------------------------- Rafael Balderrama, individually, and on behalf of other members of the general public similarly situated v. Park West Landscape Maintenance, Inc., and Does 1 through 100, inclusive, Case No. BC644491 (Cal. Super. Ct., December 20, 2016), is brought against the Defendants for failure to pay minimum and overtime wages in violation of the California Labor Code. Park West Landscape Maintenance, Inc. owns and operates a landscape construction and maintenance company in Los Angeles, California. The Plaintiff is represented by: Ronald H. Bae, Esq. Olivia D. Scharrer, Esq. AEQUITAS LEGAL GROUP A Professional Law Corporation 1156 E. Green Street, Suite 200 Pasadena, CA 91106 Telephone: (213) 674-6080 Facsimile: (213)674-6081 PATRIOT NATIONAL: Court Issues Restraining Order in Class Action ---------------------------------------------------------------- Sinead Carew, writing for Insurance Journal, reports that Patriot National Inc on Dec. 15 disclosed it could not pay a special dividend pending a court hearing that would happen late March at the earliest. Patriot, which had originally planned to pay the $2.50 dividend on Dec. 9, said the Court of Chancery of the State of Delaware also prohibited it from continuing a previously announced stock repurchase program at least until a court hearing expected some time after March 24. The company, which helps insurers comply with regulations, said on Dec. 7 that the court issued a temporary restraining order related to a class action stockholder lawsuit but that it still hoped to pay the dividend in January. "The market is building in the expectation it is less likely they're going to get their dividend," said Kenneth Billingsley, an analyst at Compass Point Research & Trading in Washington D.C. He estimated the company's value at $4 per share, excluding the $2.50 dividend. The company likely set the dividend to please shareholders after merger talks with Ebix Inc. fell through in early November, Billingsley said. Patriot National at the same time announced an expansion of its buyback program and disclosed a new $280 million loan and a $30 million credit facility that increased the company's leverage. Whitney Maroney, founding partner at Millrace Asset Group in Berwyn, Pennsylvania, said he sold his roughly 195,000 shares in Patriot after the company announced the special dividend. "We didn't think that paying a one-time special dividend was in the best interest of shareholders," said Ms. Maroney. "It doesn't do anything to grow the revenue for the company, especially when you lever up to do it." The dividend proposal met with a previous challenge when a court slapped Patriot with a temporary restraining order against the payment following a lawsuit filed by Hudson Bay -- one of Patriot's largest shareholders, according to the latest public ownership filings. That restraining order was lifted after a Dec. 1 hearing in New York. PINNACLE RECOVERY: Faces TCPA Class Action in California -------------------------------------------------------- Jenie Mallari-Torres, writing for Northern California Record, reports that a Santa Clara County consumer claims a debt collector has harassed him with phone calls. Fidel Quintanilla filed a complaint individually and on behalf of all others similarly situated on Dec. 12 in the U.S. District Court for the Northern District of California against Pinnacle Recovery Inc. alleging violation of the Telephone Consumer Protection Act, the Fair Debt Collection Practices Act and the Rosenthal Fair Debt Collection Practices Act. According to the complaint, the plaintiff alleges that in 2015, he started receiving calls from the defendant in its effort to collect an alleged debt by using an automatic telephone dialing system or an artificial or prerecorded voice on their cellular telephones. He alleges he revoked his consent to be called but that the defendant continued to call. The plaintiffs hold Pinnacle Recovery Inc. responsible because the defendant allegedly communicated with plaintiff with such frequency as to be unreasonable, and caused plaintiff's telephone to ring repeatedly or continuously with intent to harass, annoy or abuse. The plaintiffs request a trial by jury and seek judgment against defendant, $500 in statutory damages for every violation, $1,500 in treble damages for every violation, actual damages, costs, attorney's fees and further relief as may be just. He is represented by Todd M. Friedman, Adrian R. Bacon and Meghan E. George of Law Offices of Todd M. Friedman in Woodland Hills. U.S. District Court for the Northern District of California Case number 5:16-cv-07085 PLATINUM EQUITIES: Real Estate Mogul Targeted in Attack ------------------------------------------------------- Reid Southwick and Shawn Logan, writing for Calgary Herald, report that the brother of a Calgary real estate developer gunned down outside his mansion early on Dec. 19 says the family doesn't know why Riaz Mamdani was targeted in the attack, but they are confident he will make a full recovery. "Our family is in shock with a lot of concern, and we're all there to support Riaz, Zainool (his wife) and the children," Alykhan Mamdani said in an interview. Mr. Mamdani, a 48-year-old father of four, was in the driver's seat of a Rolls-Royce Phantom leaving his sprawling Mount Royal home when he was shot. The president and CEO of Strategic Group, which has well over $1 billion in assets, remains surrounded by family in hospital, where he is in stable condition and receiving treatment for multiple injuries. "We're grateful for the wishes, prayers and support from hundreds of people, both in Calgary and outside, that have known Riaz, have known the family," said Mr. Alykhan, 46, Mamdani's only sibling. Still, Mr. Alykhan acknowledged his brother is accused of playing a role in two controversial real estate deals, one of which allegedly bilked investors of $200 million and triggered a class action lawsuit. "There's always concern when there are issues out there, that people are disgruntled," he said. "We have no knowledge of where this targeting came from." Police are searching for a male suspect who was wearing a bright orange jacket. The shooting left at least three bullet holes in the windshield of the luxury car. Despite his success and local philanthropy, Mr. Mamdani remains a polarizing figure in the city. Don Leibel is one of 2,200 investors named as plaintiffs in a class action lawsuit who claim to have collectively lost some $200 million buying limited partnerships in commercial real estate through Platinum Equities Inc. The 80-year-old retiree who claims to have lost $100,000 in the alleged investment fraud that names Mr. Mamdani, three other individuals and several companies, said he was surprised to learn Mr. Mamdani was targeted, but it hasn't blunted his lingering anger. "Some people lost their life savings -- I lost a big portion of my life savings," he said. "Because of what happened, we couldn't live the life we wanted to." In 2014, the Alberta Securities Commission ruled two companies, including Platinum Equities, had perpetuated a fraud on investors, while five other funds illegally traded and distributed securities. And last August, one of the co-accused in the Platinum Equities class action, Srinivasan (Shariff) Chandran, was charged by RCMP with fraud over $5,000 and theft over $5,000 for his alleged role. Mr. Mamdani is also named in a separate $10-million class action suit filed in June 2014, which alleges he was involved in an investment deal that saw investors in Alberta, B.C. and Ontario agree to purchase a parcel of land through two Platinum corporations. In total, more than three dozen lawsuits involving Mr. Mamdani have been filed since 1993. Mr. Mamdani told Alberta Venture in 2012 he was surprised and somewhat offended when he learned he was linked to legal action facing Platinum Equities Inc. over an alleged fraud. He told the magazine he felt badly for investors who lost money, though he said he was not responsible for those losses. "It appears to me that we have Platinum that has done a lot of misdeeds and, in order to deflect criticism, they are pointing at someone else," Mr. Mamdani told the magazine. "And the investors are believing it. And that puts me in an awkward position that the investors bring me in. And that's just not the case." Calgary lawyer Gordon Hoffman has known Mr. Mamdani for 15 years, working side by side through several charitable foundations, including the Alberta Champions Society, Project Warmth and Operation Kickstart. He said Mr. Mamdani's contributions to the city are enormous, and he's been a hands-on participant in several charitable endeavours, going far beyond just signing his name to cheques. While Mr. Hoffman was reluctant to speculate why Mr. Mamdani was targeted, he noted those who lose significant capital in business deals are often looking for someone to blame. "You can't do business sometimes without unfortunately making some enemies," Mr. Hoffman said. "Some people, when they've lost money, they always want to blame somebody else." Strategic Group issued a statement on Dec. 20, saying he's on the road to recovery and they're grateful for community support. "Thankfully, he is stable, improving and we can expect a full recovery," the company said. "We are truly grateful to the outpouring of support from our customers, business members and members of our community." PLAYDEK: Unsung Story Kickstarter Backer Mulls Class Action ----------------------------------------------------------- Jason Schreier, writing for Kotaku, reports that on Dec. 23 at around 10pm ET -- optimal time to release news -- the developers of Unsung Story put out yet another update for their longrunning Kickstarter failure. Backers were . . . not happy. In case you haven't followed the ongoing Unsung Story debacle, here's the short version: In January of 2014, the developer Playdek raised $US660,000 ($920,736) for a strategy-RPG that they said would feature a story and design by iconic Final Fantasy Tactics designer Yasumi Matsuno. By the end of 2015, it became clear that Playdek wasn't going to deliver. A string of broken promises, the introduction of PVP to what was originally characterised as a single-player game, and lingering communication issues led Unsung Story backers to give up on all hopes of seeing the "Final Fantasy Tactics successor" they had funded. Nearly three years after the Kickstarter, Playdek now says they're, uh, getting proper funding. And working on a playable build. And some other details that still don't explain why it's taken this company so long to deliver on what they promised. The real highlight, however is the comments: And on and on. One backer says he's trying to put together a class-action suit against Playdek, fuelled by the fact that Unsung Story remains in purgatory while the company continues to release plenty of other games. PRADA USA: Faces "Duran" Suit Over Failure to Pay Overtime Wages ---------------------------------------------------------------- Mario Duran as an individual and on behalf of all others similarly situated v. Prada USA Corp. and Does 1 through 100, Case No. BC644319 (Cal. Super. Ct., December 16, 2016), seeks to recover unpaid overtime wages and damages pursuant to the California Labor Code. Prada USA Corp. is in the business of designing, producing and selling luxury leather handbags, travel accessories, shoes, and other fashion accessories. The Plaintiff is represented by: Paul K. Haines, Esq. Tuvia Korobkin, Esq. Sean M. Blakely, Esq. HAINES LAW GROUP, APC 2274 East Maple Ave. El Segundo, CA 90245 Telephone: (424) 292-2350 Facsimile: (424) 292-2355 E-mail: phaines@haineslawgroup.com tkorobkin@haineslawgroup.com sblakely@haineslawgroup.com PROGRESSIVE: Ohio Appeals Court Affirms Class Action Dismissal -------------------------------------------------------------- Fender Bender reports that an Ohio court of appeals recently upheld a trial court's decision to deny class certification to four independent body shops in their recent lawsuit against insurer Progressive. The shops had sued Progressive in state court, seeking damages for parts and labor and declaratory relief that would require Progressive to indemnify them from any liability occurring from their compliance with the insurer's restrictions, legalnewsline.com noted. Progressive argued that its practices and rates are competitive based on Ohio's current market. The class the plaintiffs sought to certify included all Ohio registered body shops or registered individuals (excluding Progressive DRP members) that perform body repairs covered by the insurer's policies from Aug. 7, 2005, to present. Mainly, the plaintiffs' motion was the argument that their two claims differed; the court disagreed and found the relief sought was "merely incidental" to plaintiffs' damages claims against the insurer. Because the decision was specific to the request for class action certification, the court made no ruling on the merits of the independent lawsuits of the four body shop owners. RENT-A-CENTER INC: Glancy Prongay Files Class Action Lawsuit ------------------------------------------------------------ Glancy Prongay & Murray LLP filed a class action lawsuit in the United States District Court for the Eastern District of Texas on behalf of a class consisting of persons and entities that purchased or otherwise acquired Rent-A-Center, Inc. securities between July 27, 2015, and October 10, 2016, inclusive. If you are a member of the Class described above, you may move the Court no later than 60 days from the date of this notice, to serve as lead plaintiff. Please contact Lesley Portnoy at 888-773-9224 or 310-201-9150, or at -- shareholders@glancylaw.com -- to discuss this matter. The complaint filed in this lawsuit alleges that throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants failed to disclose: (1) that Rent-A- Center could not properly implement its new point of sale system ("POS"); (2) that, the POS was performing extremely poorly, including several instances where the system suffered complete outages; (3) that as a result, the Company's Acceptance Now credit system could not be implemented properly; (4) that the Company could not meet revenue and profitability guidance provided to investors; (5) that, as such, the Company would need to revise its prior guidance; and (6) that, as a result of the foregoing, Defendants' statements about Rent-A-Center's business, operations, and prospects, were false and misleading and/or lacked a reasonable basis. If you purchased shares of Rent-A-Center during the Class Period you may move the Court no later than 60 days from the date of this notice to ask the Court to appoint you as lead plaintiff. 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 Lesley Portnoy, Esquire, of Glancy Prongay & Murray LLP, 1925 Century Park East, Suite 2100, Los Angeles, California 90067, at (310) 201-9150, by e-mail to -- shareholders@glancylaw.com -- or visit our website at http://www.glancylaw.com/ RENT-A-CENTER: Goldberg Law Files Securities Class Action Lawsuit ----------------------------------------------------------------- Goldberg Law PC, a national shareholder rights litigation firm, disclosed the filing of a class action lawsuit against Rent-A- Center, Inc. Investors who purchased or otherwise acquired Facebook shares between July 27, 2015 and October 10, 2016 inclusive, are encouraged to contact the firm 60 days in advance of this notice. If you are a shareholder who suffered a loss during the Class Period, we encourage you to contact Michael Goldberg or Brian Schall, of Goldberg Law PC, 1999 Avenue of the Stars, Suite 1100, Los Angeles, CA 90067, at 800-977-7401, to discuss your rights free of charge. You can also reach us through the firm's website at http://www.Goldberglawpc.com,or by email at -- info@goldberglawpc.com -- The class in this case has not yet been certified, and until certification occurs, you are not represented by an attorney. If you choose to take no action, you can remain an absent class member. According to the Complaint, during the Class Period, the Company made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. In particular, the Company failed to disclose: that Rent-A-Center was unable to effectively install its new point of sale system ("POS"); that, the POS was not performing as expected, including several system outrages; that as a result, the Company's Acceptance Now credit system could not be installed effectively; that the Company was unable to meet revenue and profitability guidance provided to shareholders; that, as such, the Company would need to review its prior guidance; and that, as a result of the above, the Company's statements about Rent-A-Center's business, operations, and prospects, were false and misleading and/or lacked a reasonable basis. Goldberg Law PC represents shareholders around the world and specializes in securities class actions and shareholder rights litigation. RENT-A-CENTER: February 21 Lead Plaintiff Motion Deadline Set ------------------------------------------------------------- Lundin Law PC, a shareholder rights firm on Dec. 27 announced a class action lawsuit against Rent-A-Center, Inc. ("Rent-A-Center" or the "Company") Nasdaq: RCII). Investors, who purchased or otherwise acquired shares between July 27, 2015 and October 10, 2016 inclusive (the "Class Period"), are encouraged to contact the Firm in advance of the February 21, 2017 lead plaintiff motion deadline. To participate in this class action lawsuit, call Brian Lundin, Esquire, of Lundin Law PC, at 888-713-1033, or e-mail him at brian@lundinlawpc.com. No class has been certified in the above action yet. 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 during the Class Period, the Company made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. In particular, Rent-A-Center failed to reveal: that Rent-A-Center could not effectively install its new point of sale system ("POS"); that, the POS was not performing as anticipated and experienced system outrages; that as a result, the Company's Acceptance Now credit system was not installed effectively; that the Company could not meet revenue and profitability guidance provided to investors; that, as such, the Company would need to review its prior guidance; and that, as a result of the above, the Rent-A-Center's statements about Rent-A- Center's business, operations, and prospects, were false and misleading and/or lacked a reasonable basis. Lundin Law PC was established by Brian Lundin, a securities litigator based in Los Angeles dedicated to upholding shareholders' rights. RJ REYNOLDS: Court Says $18.5MM Tobacco Case Verdict Excessive -------------------------------------------------------------- Chandra Lye, writing for Florida Record, reports that an appeals court has ruled that an $18.5 million penalty on R.J. Reynolds (RJR) Tobacco was excessive. The monetary reward was granted to the daughter of a smoker who died of lung cancer. Gwendolyn Odom was awarded $6 million in compensatory damages and $14 million in punitive damages after the death of her mother, Juanita Thurston. The second phase of the case was to determine how much Ms. Odom was entitled to for punitive damages. "When there is a large verdict oftentimes a defendant will file a motion for remittitur and it is a motion to reduce the verdict," William Large from the Florida Justice Reform Institute told the Florida Record. "They are basically asking the trial judge to rule that the verdict was too high." Yet Mr. Large said it was not easy to win the favor of a judge in these cases. "It is difficult to get a judge to grant a motion for additur or remittitur. It is not common," he said, explaining that the additur is when the plaintiff files to have additional damages added to the original reward. RJR raised questions about Ms. Odom's claims, "because plaintiff failed to prove that her mother relied on a false or misleading statement made by RJR after May 5, 1992." The tobacco company also claims that comments made by Odom's lawyer in the courtroom require a new trial. The case was divided into two phases, the first was to determine if Ms. Odom was eligible to be part of the Engle class action lawsuit and to see if RJR could be held legally responsible for Thurston's death. Part of the issue, according to court documents, was that Odom was not dependent upon her mother in a meaningful way. "The case is about remittitur and giving a large economic reward to an adult who did not live with their mother," Mr. Large said. In the filing RJR also argued that, when compared to other awards in similar cases involving adult children, the award it was ordered to pay was excessive. But the trial court denied the motion. In this case the appeals court sent it back to the same circuit judge, "with directions that the trial court grant a motion for remittitur or order a new trial on damages only," Mr. Large said. RJR has been fighting individual plaintiffs connected to the Engle class action suit initially filed in 1994. In 2006 a Florida judge declared that those involved in the class action could move forward as independent plaintiffs. They were permitted to rely on findings from the Engle and other similar cases to support their claims. Anyone wanting to use such cases needs to establish a link between the marketing of tobacco companies and smoking addiction. During the case the attorney for RJR said that the company had changed its ways and has "started doing things the right way, acting as a responsible company in the tobacco industry." The company's vice president of cigarette product development testified that they had been working on creating safer alternatives to smoking. There are reportedly thousands of cases like Ms. Odom's waiting for their day in court. SAN FRANCISCO, CA: May Pay Muni Operators $8MM in Settlement ------------------------------------------------------------ Muni operators may net $8 million in a settlement from San Francisco as a years-long overtime lawsuit potentially comes to an end, according to The San Francisco Examiner. In 2012, former Muni operator Darryl A. Stitt filed a class-action suit against the San Francisco Municipal Transportation Agency and The City alleging the transit agency failed to pay Muni operators due overtime in violation of the California Labor Code and San Francisco's Minimum Wage Ordinance. Muni operators weren't paid for travel time between the bus yards they clocked into and the bus yards they needed to pull buses out of, or for certain post-driving inspections and other periods, Stitt and other operators alleged. In 2014, U.S. District Court Judge Yvonne Gonzalez granted some 2,500 Muni operators class status, upping the ante in the suit. From 2014 to 2016, SFMTA and the plaintiffs engaged in numerous settlement hearings. Now, an amount seems to have been agreed upon, according to court filings. "The parties have reached agreement that Defendant shall pay an amount not to exceed Eight Million Dollars ($8,000,000) as the Maximum Settlement Amount to resolve the Action on a class-wide basis," wrote attorneys for the defendant, SFMTA, in a motion for preliminary approval of class settlement filed Dec. 16. The proposed settlement amount will tentatively go before the SFMTA Board of Directors for approval in early January, which will be followed by the next settlement hearing between the SFMTA and the plaintiffs on Jan. 24, 2017. The SFMTA declined to comment, and attorneys for the plaintiffs did not return repeated calls. Eric Williams, president of the Transport Workers Union Local 250-A, declined to comment on the suit. "I'm a plaintiff just like my [union] brothers and sisters," said Williams, a former cable car operator. The Tidrick Law Firm in Berkeley represented the Muni operators, and may take as much as 30 percent of the settlement should it be approved, according to court filings. Operators from August 17, 2009, to May 2, 2014, will be included in the payout. In the filings, the SFMTA "specifically and generally" denied any and all liability or wrongdoing of any sort. Crucially, this may also mean operators may not be paid for travel time going into the future, the defendants' attorneys explained on background -- the $8 million settlement may be all the money operators will ever see from the matter. The lead plaintiff, Stitt, may net $25,000, as will another plaintiff, John Dudley. Other plaintiffs will receive $10,000 and $3,000 each, and a number of operators who provided depositions may net $800 each. The rest of the settlement will be determined by hours worked, according to filings. "Defendant (SFMTA) has concluded that further conduct of the Action would likely be protracted, distracting and expensive, and it is desirable that the Action be fully and finally settled," attorneys wrote in court filings. The settlement may signal the end of a long saga, which the San Francisco Examiner's sister paper SF Weekly referred to in 2014 as "Finally, Inevitably: Muni is suing Muni." At the time, SF Weekly noted that if The City was found to be in violation of The City's Minimum Wage ordinance, a fine of $50 per day -- per 2,500 SFMTA workers -- may have meant a $228 million fine for The City. SCRANTON, PA: Faces Class Action Over $300 Annual Garbage Fee ------------------------------------------------------------- Jim Lockwood, writing for The Times-Tribune, reports that before suing Scranton over its $300 annual garbage fee, Adam Guiffrida wanted to try to work out an alternative. On Dec. 8, the city's law department told him to advocate his position with city council or any other way he deemed appropriate, Mr. Guiffrida said in a phone interview. Mr. Guiffrida filed a class-action lawsuit on Dec. 15, claiming the city has been improperly setting its annual trash fee at a too-high $300 since 2014, to generate millions of extra dollars for city coffers each year. "I've been reaching out to the city for over two months to discuss it. They would not even meet with me," Mr. Guiffrida said. City Solicitor Jason Shrive declined to comment, saying the city had not yet been served with the lawsuit, but he also typically does not comment on pending litigation. Mr. Guiffrida also said he waited until after Scranton enacted its 2017 budget to file the trash fee lawsuit. Mayor Bill Courtright's budget, adopted by council on Dec. 8, continues the $300 trash fee and does not raise property taxes. Mr. Guiffrida said he waited so the city could not possibly use a trash fee lawsuit as justification for raising property taxes. "I didn't want that to happen. I'm definitely not looking for any more tax increases," he said. A landlord, Mr. Guiffrida previously sued the city in 2015 over its tripling of rental registration fees in 2014. That pending class-action lawsuit forced the city to reduce rental registration fees and scrap inspections, though refunds of excess fees remain unresolved and outstanding, he said. His trash fee lawsuit will follow the same strategy: make the city justify the $300 trash fee as fair, or force its reduction. The city raised the garbage fee for 2014 from $178 to $300. The lawsuit claims the trash collection fee is supposed to only cover costs of pickup, but has generated several millions more during the past three years. The trash fee issue has cropped up periodically since the big fee hike in 2014. Earlier this year, the administration sought assistance from the state for a study of the actual cost of garbage collection and best way to go forward. Options for review would include ramping up perennially low recycling amounts, including of yard waste, and considering a per-bag fee to induce residents to recycle more. This presumably would lead to less trash sent to the landfill and a reduction in tipping-fee costs, and the city hopes this review takes place during the first half of 2017, officials have said. Mr. Guiffrida thinks that the city's former $178 annual garbage fee also was probably too high, and suing the city for an accounting is the only way to find out. "The city will have to do their own analysis (of trash pickup costs) in court," he said. SHOP VAC: Approval of Wet-Dry Vacuum Settlement Appealed -------------------------------------------------------- John Beauge, writing for PennLive, reports that a Montgomery County woman has appealed the approval of the nationwide settlement of multiple federal class-action lawsuits that claimed popular Shop Vac Corp wet-dry vacuums do not live up to their advertised specifications. Michelle Vullings of Collegeville, who in August had called the then-proposed settlement "unfair," filed her appeal on Dec. 19 in U.S. Middle District Court. Judge Yvette Kane gave final approval to the settlement Dec. 9. Ms. Vullings was one three individuals to file an objection out of the 1,164,149 who received notice of the preliminary settlement. None of the three attended a fairness hearing in September in Harrisburg. She did not detail her objections in the appeal but in August she contended the settlement did not protect the public from Shop Vac's conduct in the future and attorney fees were excessive. She also claimed a fair settlement benefit would have included cash distributions to class members for their waiver of consumer fraud and warranty claims. The settlement Kane approved awarded $5,000 to each of four named plaintiffs in Florida, Missouri, California and Illinois along with $4.25 million in legal fees. Shop Vac, which did not admit any liability, agreed to a two-year extension of the warranty on the motors of the vacuums purchased or acquired since Jan. 1, 2006. In her August objection, Ms. Vullings opined Shop Vac's cost for the extended warranty "is surely minimal" and is likely to be a small fraction of the attorney fees. The parties had estimated in an earlier court document the retail value of the extended warranties would be "well into the millions of dollars." Shop Vac, which is headquartered in Williamsport, also agreed to change how it refers to peak horsepower on marketing materials and alter what the plaintiffs claimed is misleading information about the canister size measurement. SIRIUS XM: Landmark Ruling Leaves Artists With Lump of Coal ----------------------------------------------------------- Ian C. Ballon, Esq. -- Ballon@gtlaw.com -- and Justin A. MacLean, Esq. -- macleanj@gtlaw.com -- of Greenberg Traurig, disclosed that on Dec. 20, 2016, the New York Court of Appeals issued its decision in Flo & Eddie, Inc. v. Sirius XM Radio, Inc., holding, by a 4-2 vote, that New York law does not recognize a public performance right in sound recordings fixed before Feb. 15, 1972. Flo & Eddie dealt a setback to recording artists and record companies seeking royalty payments from digital music services that perform their sound recordings over the internet. However, the full impact of the Court's decision remains to be seen. The Legal Framework for Pre-1972 Recordings Copyright in original works of authorship is governed almost exclusively by federal law. The Copyright Act of 1976 sets forth a number of exclusive rights for owners of copyrightable works including, in most cases, the right to reproduce, distribute, make derivative works of, publicly perform, and publicly display those works. But for sound recordings -- the recorded performance of a series of musical, spoken, or other sounds -- those exclusive rights are more limited. Most notably, sound recordings do not enjoy a general right of public performance under the Copyright Act. In 1995, with the advancement of computer technology, Congress enacted the Digital Performance Right in Sound Recordings Act (DPRA), adding to the copyright statute an exclusive right to perform sound recordings, but only "by means of a digital audio transmission." This addition was saddled with a number of exemptions, qualifications, limited compulsory licenses, and statutorily mandated royalty rates, set by a governmental body and collected by what is essentially a royalty clearinghouse for distribution to relevant stakeholders. The Copyright Act only protects sound recordings created on or after Feb. 15, 1972. Sound recordings created before that date ("pre-1972 sound recordings") are not subject to federal copyright protection. Rather, pre-1972 sound recordings are governed by an amalgam of state laws, both statutory7 and at common law. The scope of those state law copyrights has not been well-defined. For instance, it was clear that state laws protected against copying (i.e., reproducing) pre-1972 sound recordings. However, whether state law copyrights included a right of public performance had not come into question -- at least until recently. The Flo & Eddie Litigation Flo & Eddie is a corporation owned by two of the original members of the band The Turtles -- best known for its hit song "Happy Together" -- and the owner of copyrights in the band's sound recordings. Beginning in August 2013, Flo & Eddie sued Sirius XM Radio in putative class actions in New York, California, and Florida, alleging that Sirius infringed Flo & Eddie's state law copyrights in its pre-1972 sound recordings by broadcasting them in digital media (via satellite or the internet) without authorization. Sirius, in response, asserted that its broadcasts of The Turtles' recordings did not amount to infringement, because pre-1972 recordings did not enjoy a right of public performance under state law. In the Southern District of New York, Judge Colleen McMahon denied Sirius's motion for summary judgment and held, among other things, that New York recognized a public performance right in pre-1972 sound recordings. Judge McMahon recognized that she was deciding an issue "of first impression," that broadcasters "have adapted to an environment in which they do not pay royalties for broadcasting pre-1972 sound recordings," and that Flo & Eddie's lawsuit "threatens to upset those settled expectations." Yet, Judge McMahon observed that New York had "long afforded public performance rights to holders of common law copyrights in works such as plays . . . and films," and did not attach significance to the fact that no case law explicitly recognized a public performance right in sound recordings, nor in the fact that sound recording copyright owners had failed to act on whatever common law performance existed (leaving broadcasters to avoid paying royalties). Sirius then filed an interlocutory appeal to the Second Circuit, which held that (1) the New York Court of Appeals had not ruled on whether a public performance right in sound recordings exists; (2) the question of whether such a right exists was determinative of Flo & Eddie's infringement claim; and (3) the recognition of such a right was a public policy choice appropriately resolved by a state court. Thus, the Second Circuit certified to the New York Court of Appeals the following question: "Is there a right of public performance for creators of sound recordings under New York law and, if so, what is the nature and scope of that right?" The Court of Appeals' Decision The Court of Appeals accepted the certified question, and a four- judge majority answered that question in the negative. The Court reviewed the pertinent decisions on copyright protection under New York state law, and concluded that rather than recognize an "inseparable bundle of rights," New York copyright recognized "separate rights addressing copying and performing, with the former based in common law and the latter based in statute." With respect to sound recordings, the Court held that "copyright prevents copying of a work, but does not prevent someone from using a copy, once it has been lawfully procured, in any other way the purchaser sees fit." In addition, the Court observed that representatives of the recording industry, themselves, indicated in their lobbying efforts for a federal performance right their previous understanding that no public performance right existed under any law (federal or state), and that sound recording rightsholders took no action to assert common-law protection for at least the past four decades (i.e., since the advent of federal protection for sound recordings). The Court of Appeals then observed that it was within the ambit of the state Legislature to conduct the delicate balancing of interests that would be necessary if a new performance right, with significant economic consequences, were to be created. Finally, the Court of Appeals explained that creation of a public performance right would involve questions of "line drawing" as to what types of performances would be subject to it -- for example, if the public performance right would encompass only performance for "commercial purposes," if it would exempt over-the-air radio (as the federal Copyright Act does), if it would extend to performances involving indirect payment (such as to a bar that imposes a cover charge), and so on. The Court also noted that other causes of action may be available, even in the absence of a common-law right of public performance. Two judges on the Court of Appeals dissented, expressing the view that New York's "broad and flexible common-law copyright protections for sound recordings encompass a public performance right that extends to the outer boundaries of current federal law" (i.e., exempting traditional AM/FM radio stations). And, in a concurring opinion, one judge agreed with the majority that there was no public performance right, but argued separately that "on demand" streaming of recordings should not be classified as performance, but rather, publication (and thus, falls within the bundle of rights under common law granted to pre-1972 sound recordings). Potential Impact on Performance of Pre-1972 Sound Recordings The New York Court of Appeals' decision marks the first time that the highest court of any state has weighed in on whether state law recognizes a public performance right in pre-1972 sound recordings. But courts in other jurisdictions are considering similar questions. In California, Flo & Eddie won a ruling against Sirius XM that California law recognizes a performance right in pre-1972 sound recordings under that state's copyright statute. But Flo & Eddie's counterpart lawsuit against digital music giant Pandora has been appealed and is pending in the Ninth Circuit. In Florida, the opposite result occurred; the district court ruled that Florida law does not recognize a performance right in pre-1972 sound recordings. Flo & Eddie appealed that decision, and the 11th Circuit -- much like the Second Circuit did here -- certified the question of whether a public performance right exists to the Florida Supreme Court, where it is pending. Given the timing of the Court of Appeals' decision and the historical importance of New York jurisprudence to both the recording industry and digital music services, the Flo & Eddie opinion from New York may be influential in both outstanding cases in California and Florida. On the other hand, the courts in those jurisdictions may steer clear of reliance on the New York case, or they may be more convinced by the Court's highly persuasive concurring and dissenting opinions. And, even in New York, the fight is not over; the Second Circuit, armed with the Court of Appeals' answer to its question, must now turn to Sirius' allegedly illicit reproductions of those same pre-1972 sound recordings, the question of whether those reproductions constitute non-infringing fair use, and Flo & Eddie's claims of unfair competition. On the legislative front, the Court of Appeals' opinion invited stakeholders to turn their attention to the New York legislature for any changes that might be warranted to the scope of copyright in pre-1972 sound recordings. Given the decline in revenue that artists and record labels are facing, one might expect that the recording industry will be sending their representatives to Albany in full force. Not to be outdone, one might also expect that users of sound recordings -- both digital music services and traditional broadcasters -- will follow suit, in an effort to obtain exemptions and other statutory limits on the public performance right akin to those present in federal law. Finally, Flo & Eddie is bound to have caught the eye of Congress and the United States Copyright Office, which has explored bringing pre-1972 sound recordings within the ambit of the federal Copyright Act for the past several years. After this most recent decision, those efforts may well intensify. One thing is certain: 2017 will bring a flurry of new developments for old recordings. SLATER & GORDON: ASIC Probe May Hamper $250MM Class Action ---------------------------------------------------------- Misa Han and Jonathan Shapiro, writing for Australian Financial Review, report that Maurice Blackburn will likely have to widen the net of a class action against Slater & Gordon to include its former auditors after the corporate regulator reopened an investigation into the embattled law firm's accounts. Slater & Gordon revealed that Australian Securities and Investment Commission has asked for documents that may show whether the law firm's financial records were "deliberately falsified or manipulated", or whether its "officers have committed offences." This is critical to Maurice Blackburn's case because if it's proved that Slaters executives engaged in "falsification", insurers would not be liable for any class action claim. Instead, Maurice Blackburn would have to go after other sources, including its auditors, advisors and directors personally. Maurice Blackburn said in a statement: "Slater & Gordon's announcement does indicate that the ASIC investigation is very serious, and we will be watching with interest. "But in complex class actions like this there are often multiple avenues of recovery, especially considering that Slater & Gordon itself has foreshadowed a cross-claim against other parties, including a warranty claim against Quindell (now Watchstone) and ú50 million ($85 million) is still being held in escrow against that claim." Slaters is planning to sue Watchstone Group -- the remnants of British company Quindell -- which it paid $1.3 billion in a deal to acquire its troubled professional services division. The stock is trading at 23 cents compared a high of $7.85 18 months ago. A senior litigation lawyer, who did not wish to be named, said if allegations of falsification are proven, Maurice Blackburn has three options: for the law firm to "stick to the knitting" and allege failure of continuous disclosure obligations without raising allegations of falsified accounts; to go after the directors individually; or to seek to recover from third parties including auditors and advisors. Another senior litigation lawyer said if the corporate regulator finds there has been deliberate falsification of accounts then it is likely Maurice Blackburn would go after third parties including Slaters' auditors. Slaters' former auditors include Pitcher Partners and EY. "If you have a falsification of accounts and that's done willingly, then insurance exclusions could kick in, which means you have an uninsured loss and have got to find other sources to recover the money from," he said. "It's much more likely they will also go after somebody who was insured, for example a negligent advisor who was a concurrent wrongdoer. In practice it'll be the accountants who signed off on the accounts, because in theory it's their job to discover things like [falsification]," he said. In October Maurice Blackburn launched a $250 million plus class action on behalf of more than 3000 shareholders, including over 80 institutional investors and super funds. The size of the class action is significantly more than Slater & Gordon's market cap of just $81.9 million. The action is backed by litigation funder International Litigation Partners. Diane Jones, executive of JustKapital, a litigation funder which is conditionally funding ACA Lawyers' planned class action against Slaters, said any claim of falsified accounts is a "significant concern" for any litigation funder because it would render insurance ineffective. But she said it was likely the ACA class action will proceed even if there is an ASIC investigation under way. Another litigation lawyer said while the investigation will trigger Maurice Blackburn and other class action litigators to "widen the net" to ensure recoverability, it was unlikely they would go after the personal wealth of the individual directors because "none of them would have the independent wealth to meet a judgment". STATE STREET: $53-An-Hour Lawyer Charges $500 in Settlement ----------------------------------------------------------- Daniel Fisher, writing for Forbes, reports that the Boston Globe has a great muckraking piece on one of the biggest scandals in American law: How class-action attorneys submit inflated bills and steer court-approved legal fees to politicians and other insiders, often without public oversight. The article published in the Globe details how lawyers who negotiated a $300 million settlement with State Street Corp. over foreign-exchange overcharges stuck their own clients with $76 million in fees, including $203,200 for the brother of lead attorney Garrett Bradley, who until August was the assistant majority leader in the Massachusetts House. The hefty payment to the politician's brother Michael reflected a court-approved rate of $500 an hour, surprising given Bradley's normal occupation as a $53-an-hour public defender, the Globe reported. Other lawyers were billed to the class at $425 an hour when they were actually paid $30 an hour for their services, one of the lawyers told the Globe. That highlights another common practice in class-action land, where law firms hire inexperienced or unemployed contract attorneys to perform routine document screening and then mark up their services to corporate levels when they submit the bill to the court. When multiple law firms join forces to prosecute a single case -- eight that we know of in this case, including New York's Labaton Sucharow -- they typically horse-trade those marked-up hours among themselves to spread the profits and tamp down disagreements that might result in lower fees for everybody. In this case the contract attorneys actually worked for Labaton but appeared on Thornton's bill, the Globe reported. Diana Pisciotta, spokeswoman for Labaton Sucharow, told the Globe such markups are "commonly accepted practice throughout the legal community." There's nothing new about class-action lawyers spreading the wealth to friends and political supporters. The Globe, in another investigation earlier this year, reported how Bradley's law firm handed out "bonuses" to partners equal to the hundreds of thousands of dollars in campaign contributions they made to Democratic politicians around the country. The Globe reported in November that federal prosecutors had opened a grand jury investigation into the practice. In Mississippi, a disgruntled former lawyer with prominent class- action firm Bernstein Litowitz accused his colleagues of authorizing more than $100,000 in fees for the solo-practitioner wife of a staff attorney in the office of Misssippi Attorney General Jim Hood. The $544-an-hour fee would be eye-popping for just about any lawyer in central Mississippi but it was particularly surprising given Mississippi was the lead plaintiff - - and Mr. Hood in charge of handing out the class-action duties -- in the case against Satyam Computer Services. And in Chicago, prosecutors have charged former Chicago alderman Edward "Fast Eddie" Vdolyak of getting his cut from the monumental 1998 tobacco settlement, for services that allegedly didn't include performing any legal work. That's the settlement that showered billions of dollars on mostly Democratic trial lawyers across the country for the masterful job of negotiating a cartel agreement among the states that protects Philip Morris from competition to this day. In exchange the states taxed cigarettes at a higher level -- something they had the power to do anyway, high-school civics graduates understand. When stories like these emerge, class-action lawyers have a stock response: We only submit hourly bills because courts order us to. We're really just seeking compensation for the risk we took on of being paid nothing. Which is fine, except for all the ways they insulate themselves from that risk, including spreading the wealth to the people hiring them and cutting deals among themselves to reduce competition. To reiterate: The only solution is for judges to order public disclosure of what each and every attorney associated with the plaintiff side is paid. The court subtracts those fees from what the clients get, after all -- unlike defense fees -- so the clients should know who they are paying. SVM MANAGEMENT: Faces "Joinder" Suit Over Unlawful Penalties ------------------------------------------------------------ Chandra Joinder and William Blackmond, individually and on behalf and similarly situated persons v. SVM Management LLC, Case No. 2016-CH-16407 (Ill. Cir. Ct., December 20, 2016), arises out of the Defendant's practice of using a lease and riders containing clauses which impose unlawful penalties that subsume tenants' security deposits and interest. SVM Management LLC operates a large residential apartment complex with at least 260 rental units located at 18130 S. Kedzie Avenue, Hazel Crest, in Cook County, Illinois. The Plaintiff is represented by: Berton N. Ring, Esq. Stuart M. Clarke, Esq. BERTON N. RING, P.C. 123 W. Madison St., 15th Floor Chicago, IL 60602 Telephone: (312)781-0290 E-mail: bring@bnrpc.com sclarke@bnrpc.com SYNGENTA AG: Grosvenor Farms' Suit Moved to Kansas Dist. Ct. ------------------------------------------------------------ Grosvenor Farms, Charles A. McClintock, LLC, John L. McClintock, LLC, Patmos, LLC and George T. McClintock, LLC, Plaintiffs, v. Syngenta AG, Syngenta Crop Protection AG, Syngenta Corporation, Syngenta Crop Protection, LLC, Syngenta Biotechnology, Inc. and Syngenta Seeds, Inc., Defendant, Case No. 4:16-cv-00221 (N.D. Miss., November 4, 2016) was transferred to the U.S. District Court of Kansas under Case No. 2:16-CV-2794, therefore the case in Mississippi court was dismissed on December 2, 2016. Syngenta released a genetically engineered corn trait, MIR162, into the U.S. market. However, China's prohibition on the importation of MIR162 corn, even in trace, low-level amounts, effectively blocked what was previously the third-largest export market for U.S. corn, causing U.S. farmers significant damages and corn prices have dropped from the loss of China's export markets. Plaintiffs, on behalf of themselves and all others similarly situated, seek monetary damages including compensatory relief, prejudgment interest, costs of this action and such other and further relief resulting from fraudulent misrepresentation, negligence, public nuisance and violation of Lanham Act. Syngenta AG and Syngenta Crop Protection AG are corporations organized and existing under the laws of Switzerland with its principal place of business at Schwarzwaldallee 215, CH-4058 Basel-Stadt, Switzerland. Syngenta Corporation is a Delaware corporation with a principal place of business at 3411 Silverside Road #100, Wilmington, Delaware 19810-4812. Syngenta Crop Protection, LLC is a limited liability company organized and operating under the laws of the State of Delaware with its principal place of business at 410 South Swing Road, Greensboro, North Carolina 27409-2012. Syngenta Biotechnology, Inc. is a Delaware corporation with a principal place of business at Research Triangle Park, 3054 Cornwallis Road, Durham, North Carolina 27709-0296. Syngenta Seeds, Inc. is a Delaware corporation with a principal place of business at 11055 Wayzata Boulevard, Minnetonka, Minnesota 55304-1526. Plaintiff was represented by: John F. Hawkins, Esq. Edward Gibson, Esq. HAWKINS GIBSON, PLLC Post Office Box 24627 Jackson, MS 39225-4627 Telephone: (601) 969-9692 Facsimile: (601) 914-3580 TARGET CORPORATION: Immigrant Workers Allege Exploitation --------------------------------------------------------- Travis Putnam Hill, Jay Root and Elena Mejia, writing for The Texas Tribune, report that at an hour when many people are tucking themselves in for the night, the cleaning crew at an Austin-area Target store is just getting started. By the time it finishes in the early morning, workers will have cleaned the bathrooms, taken out the garbage, washed windows and carpets and polished the floors to that reflective white sheen on which the Target Corporation prides itself. One of those janitors -- a 57-year-old Mexican immigrant who preferred to go by his nickname, "Chunco" -- has worked for various contractors cleaning Target stores in Central Texas for about 12 years, despite lacking the legal right to work in the United States. And he's not alone: "All of the [cleaning] workers I've known were undocumented," Chunco told The Texas Tribune, speaking in his native Spanish. While his immigration status hasn't posed a significant roadblock to his continued employment, it has exposed him to the risks that come with working in the shadows. He and his fellow custodians have repeatedly been paid less than minimum wage and worked six or seven days a week with no overtime pay, according to court records and Texas Tribune interviews. In some cases, they accumulated those overtime hours when Target managers would lock them in the store for extra tasks. "We've realized that [employers] prefer us for being undocumented because we just keep our heads down to get jobs," Chunco said. "[We] can't afford to complain. They take advantage of us being undocumented." What Chunco describes is a window into an expansive underground labor market in which illegal hiring is widespread, even among some of the biggest names in American business. Yet the risk of running afoul of immigration authorities is low. Employers skirt culpability by accepting fake documents that they are not legally required to verify, misclassifying workers as independent contractors or subcontracting to separate businesses that do the actual hiring -- all while claiming they did what the law requires to verify their workers' employment authorization. It's that "don't ask, don't tell" system that allows employers to benefit from cheap immigrant labor. The same shadows under which undocumented immigrants are hired can also obscure the further exploitation they often endure. "The fact that they're in the shadows makes them vulnerable," said Bill Beardall, executive director of the Equal Justice Center, a nonprofit law firm that represents low-wage workers in Texas. And he would know: A large portion of the center's cases involve unpaid and underpaid wages to immigrant workers. Two of its cases illustrate the nature of this abuse, and how brand-name employers attempt to distance themselves from such transgressions. Locked in without pay Back in 2007 to 2008, the Equal Justice Center represented Chunco and 28 other janitorial workers in a lawsuit against Target and a contractor called Jim's Maintenance for unpaid wages and overtime. According to publicly available court documents, Target's lawyers asserted that the retailer was not a joint employer of the workers and thus not responsible for the wages that Jim's Maintenance had failed to pay. Target instead claimed that the workers were employees solely of Jim's Maintenance. To Beardall, the notion that these janitors were not jointly employed by Target was "preposterous." "It was the Target night managers," he said, "who let [the workers] in the building and locked them [in], and told them what to do at night, and wouldn't let them out in the morning until the Target manager had walked around the store with the crew and said, 'I'll let you out.'" The list of undisputed facts culled from hours of deposition testimony from parties on both sides of the suit reveals the degree of control Target had over the janitors. Target managers decided when shifts would start and directly told the workers when they should come in, which was usually around 10 or 11 p.m. Shifts were typically scheduled to end at 7 or 8 a.m., but Target managers regularly held the workers past the scheduled quitting time. And to ensure Target's strict cleaning standards were met, managers would frequently lock the workers in the store for the entirety of their shifts. "We've realized that [employers] prefer us for being undocumented because we just keep our heads down to get jobs. [We] can't afford to complain. They take advantage of us being undocumented." Depositions from both sides also showed that the janitors often worked 60 or more hours each week, yet according to testimony, were never paid overtime. While Target kept records of the workers' hours, Jim's Maintenance did no such thing and instead tracked only days worked. The wages the workers did receive often came out well below minimum wage -- in at least one case to the equivalent of $4.35 an hour. In 2006, Target terminated its contract with Jim's after an audit by Price Waterhouse Coopers found that Jim's had improperly misclassified multiple workers as independent contractors and failed to keep required wage and hour records . Testimony from a Target official revealed that, even after receiving audit findings, Target did not take steps to report the violations to the proper authorities. Instead, it cut ties with Jim's, giving the cleaning contractor just two days' notice. The end of the contract put Jim's out of business since, as Beardall put it, "Its only function in life was to clean stores for Target." To make matters worse, Target decided to hold on to $496,000 in fees owed to Jim's for its services for the entire month of May 2006. As a result, Jim's couldn't afford to give the workers their final paycheck. For its part, Jim's Maintenance acknowledged in briefs to the court that it did not pay workers the required overtime wages. The contractor contended, however, that it was merely a "labor recruiter" and "paymaster" rather than a joint employer and that Target was solely liable for the unpaid overtime, as it was the retailer who forced the workers to work long hours. The court ultimately rejected that argument, saying Jim's was, in fact, an employer. The suit was eventually settled out of court, and Target never admitted any wrongdoing. An attorney who represented Jim's in the case did not respond to requests for comment. In an emailed response, a Target spokeswoman wrote that the lawsuit "dealt exclusively with wage and hour issues" and did not raise questions about the plaintiffs' immigration status or that of anyone associated with Jim's Maintenance. "We can find no references in the court record that would indicate that Target knew that plaintiffs, nor any other people, were 'undocumented,'" she wrote. "The issue instead was that their employer, Jim's Maintenance, was failing to fulfill its obligations to keep proper records, including records of I-9 compliance. This failure to fulfill its contractual obligations ultimately contributed to Target's decision to terminate its contract with Jim's Maintenance." Court documents and a hearing transcript suggest the retailer's lawyers may have suspected the workers were undocumented and intended to use their legal status against them in the suit. Target's lawyers sought to grill the workers in their depositions on matters related to their immigration status, specifically about the names and Social Security numbers the workers provided on their employment applications. They argued that if the workers had provided false information on their applications, it would speak to the credibility of their wage and hour complaints. But the Equal Justice Center filed a protective order to prohibit such questions, claiming it would have a "chilling effect" on the workers' ability to enforce their legitimate wage rights. The judge agreed that the workers suing Target did not have to answer questions related to their immigration status. "Employment rights apply equally to all workers, regardless of their immigration status," Beardall said. "The problem is most undocumented workers don't know that, and employers may not know that. If they do know that, they will nevertheless use those workers' vulnerable immigration status to discourage them from enforcing their rights." Case of the fruit cutters A similar case unfolded between 2012 and 2013 when workers who cut, bagged and stocked fruit at H-E-B grocery stores filed a class action lawsuit claiming that they had been cheated out of minimum wage and overtime pay. The workers -- mostly immigrants and women -- worked at H-E-B through a contractor called Pastrana's Produce, a company with offices in Brownsville and the Mexican border city of Matamoros. The lawsuit named both Pastrana's and H-E-B as defendants, but the Texas grocer denied responsibility. "They were trying to contend that women who were cutting up fruit and nopal in their store to be sold in the produce rack and paid for at the checkout counter, that those women were contractors not of H-E-B but of something called Pastrana's Produce," Beardall said. In sworn affidavits, the produce workers claimed they routinely worked seven days a week, often for 50 hours or more, but weren't compensated for overtime and did not receive an hourly wage. Instead, they were paid a set rate for each bag of produce that customers bought. That rate depended on the type of produce sold and tended to be so low that their paychecks never amounted to minimum wage. One of the plaintiffs alleged that a manager at the H-E-B store on William Cannon Drive in Austin made her work in the cooler without any protective clothing -- an allegation repeated by several others at different H-E-B locations. To further exacerbate the problems, it seems the workers were discouraged from trying to recover their wages. According to the affidavits, some of the workers knew about a previous lawsuit between Pastrana's fruit cutters and H-E-B but didn't join at that time for fear of losing their jobs. They said a Pastrana's supervisor told them the workers who did join would lose the suit as well as their jobs. As in the Target case, lawyers from the Equal Justice Center argued that the workers were jointly employed by H-E-B and Pastrana's because they were a vital part of H-E-B's business. They worked only in stores owned by H-E-B and under supervision of H-E-B managers, who determined their work hours and daily production. And also like the Target case, the dispute was settled out of court, with H-E-B maintaining that it was not a joint employer. By the time of publication, H-E-B had not responded to questions regarding the case. And attorneys for both sides remained tight- lipped both about the terms of the settlement and the specifics of the workers' immigration status -- that is, whether they were authorized to work in the United States. Michael Latimer, the lawyer who represented Pastrana's, said the plaintiffs' immigration status was never a question throughout the suit. A woman who answered the door at the former addresses of one of the plaintiffs said she was a friend of the plaintiff and recalled him talking about his case against H-E-B. She also said he was undocumented. The Texas Tribune was able to reach another plaintiff by phone, but when asked to verify whether the produce workers were undocumented, she hung up abruptly. Elephant in the room The cases are just two examples of how average citizens reap the fruits of unauthorized labor on a daily basis, even if they may not realize it. Undocumented workers toil away on towering construction projects and harvest crops in sunbaked fields. They prepare food behind kitchen doors and wash the dishes when the meal is done. They build homes, mow lawns and clean stores and office buildings. While many decry the scourge of undocumented immigrants taking jobs from Americans, they rarely address their anger at the businesses that hire those immigrants, businesses whose low prices may depend on the low wages they pay. "What you end up with when you have a group of workers who are relegated to a second-class status is it stimulates a race to the bottom where some employers, the unscrupulous employers, prefer to hire those workers precisely because they're exploitable," Beardall said. And so often, those exploitable workers are undocumented immigrants. "It's the elephant in the room that nobody wants to talk about," Beardall said, speaking generally. "We live in a society where we don't really want to acknowledge that ... precisely because business depends on those workers." Chunco's experience may attest to that dependence. For more than a decade, he has been on the payroll of a string of different companies contracted by Target to clean its stores. "If a company doesn't meet the requirements that Target demands, [Target] breaks ties [with that company] and another one comes in," he said. "The next company comes in and asks Target if the workers are doing a good job. And if they say we're doing an excellent job, we keep our jobs with the new company." So despite the lawsuit and dissolution of Jim's Maintenance, Chunco is still buffing the same Target floors in the same Target buildings that he has for the last 12 years. And the disadvantages of working in the shadows haven't quite disappeared: He said his schedule was cut to five hours per shift, but he's still required to do all the work he used to do in eight or 10. "When you've been here for a while, you learn that they do exploit you," he said. "But we have to work." THERANOS INC: Taps Wilmer Cutler to Defend Class Actions -------------------------------------------------------- Ben Hancock, writing for The Recorder, reports that Theranos Inc. has begun drawing on a wider network of law firms, amid a rift with its once-stalwart ally Boies, Schiller & Flexner. The embattled Silicon Valley company has been besieged by lawsuits from customers, investors and business partners following reports of its failure to deliver on its promised blood-testing technology. On Dec. 20 attorneys at Wilmer Cutler Pickering Hale and Dorr entered appearances for Theranos in a proposed class action in San Francisco federal court on behalf of investors who say they were duped into buying shares in the private company. The attorney identified as lead counsel for Theranos in the case is Michael Mugmon -- michael.mugmon@wilmerhale.com -- a Wilmer Cutler partner in Palo Alto. He declined to comment, but according to his firm bio, Mr. Mugmon's practice "focuses broadly on crisis management for companies and individuals facing significant regulatory actions and litigation." It's the second lawsuit against Theranos in which Wilmer has publicly entered an appearance. The firm is also representing Theranos in a suit brought by a hedge fund in Delaware, and The Wall Street Journal reported last month that Wilmer had started handling government investigations into the company after Theranos split with Boies Schiller over strategy. Another firm that Theranos has turned to is Cooley. Firm chairman Stephen Neal -- nealsc@cooley.com -- and Kathleen Goodhart -- kgoodhart@cooley.com -- head of Cooley's Bay Area litigation practice, are representing Theranos CEO Elizabeth Holmes in the investor suit in Delaware. Cooley also stepped in on Ms. Holmes' behalf earlier this month in a consumer class action pending in Arizona federal court after Boies Schiller attorneys withdrew. According to Theranos' website, Boies Schiller founding partner David Boies -- dboies@bsfllp.com -- continues to sit on the company's board of directors. The firm had represented Theranos for years, including in a patent feud against a father-son inventor team that predated its current woes. Edward Evans, a spokesman for Boies Schiller, deferred an inquiry about the firm's split with Theranos to the company. Theranos did not respond to a request for comment. Meanwhile, in a lawsuit brought by Theranos' former business partner Walgreens in November in the U.S. District Court of Delaware, Theranos is now being represented by Wilkinson Walsh + Eskovitz. The small trial firm was founded earlier this year by a group of litigators from firms such as Paul, Weiss, Rifkind, Wharton & Garrison and Munger, Tolles & Olson. TOP FLITE: 6th Cir. Reverses TCPA Class Action Certification ------------------------------------------------------------ Jeremy Gilman, Esq. -- jgilman@beneschlaw.com -- of Benesch, in an article for JDSupra, reports that this case is more than merely an appellate adjudication of a TCPA case. It's an announcement of class certification law by the Sixth Circuit Court of Appeals. Here's the court's summary: "Plaintiffs . . . allege that defendant . . . violated the TCPA when it hired [a fax broadcasting company] to send unsolicited fax advertisements to plaintiffs and a class of similarly situated persons and businesses. The district court denied plaintiffs' motion for class certification and dismissed their complaints as moot after the plaintiffs chose not to accept offers of individual judgment. . . . We reverse." Defendant was a Michigan-based residential mortgage company. A fax broadcasting company named B2B -- whose operator another court referred to as a modern-day "typhoid mary" -- allegedly sent fax ads for defendant to more than 4,000 fax numbers using a list acquired from non-party InfoUSA. Plaintiffs were among the recipients. They claimed that the faxes were unsolicited and that they did not have an established business relationships with defendant. They sued in federal court in Detroit and sought certification of a class consisting of "[a]ll persons sent one or more faxes in March 2006 from 'Top Flite Financial' offering '0 Down, 0 Closing Costs" for Mortgages' on 'Purchases/ReFinancing, and identifying (718) 360-0971 as a 'Remove Hotline' telephone number." The district court denied class certification. Why? Here's how the Sixth Circuit described it: T]he [district] court "ma[de] no determinations as to the satisfaction of the requirements in Rule 23(a)," and instead focused its analysis exclusively on "application of Rule 23(b)(3)" and the issue of predominance. 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 plaintiffs had not shown that common questions of law or fact predominate over questions concerning individual class members. (Emphasis added.) Plaintiffs sought interlocutory appellate review under to Rule 23(f) but that was denied. Defendant then extended Rule 68 offers of judgment to plaintiffs but they lapsed without acceptance. Defendant then moved to dismiss, claiming that "because the district court had denied class certification and plaintiffs had failed to accept offers of judgment that encompassed all of the individual relief sought in their complaints, both complaints were now moot and the district court should dismiss for lack of subject matter jurisdiction under Rule 12(b)(1)." Motion granted. Case dismissed. Defendant won. But the Sixth Circuit reversed. Its rationale is best expressed by the court itself: "We have recognized repeatedly that 'the fact that a defense may arise and may affect different class members differently does not compel a finding that individual issues predominate over common ones.' Here, [plaintiffs] 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. In response, [defendant] merely alleged that class members might have given consent in some other way. The district court adopted this idea, opining that B2B's failure to obtain consent 'does not foreclose the possibility that some of those [class] members gave consent to [defendant] and or InfoUSA[,]' even though [defendant] did not offer any information or evidence to support that theory." (Emphasis in original.) "We are unwilling to allow such 'speculation and surmise to tip the decisional scales in a class certification ruling[,]' particularly under the circumstances present here. Our precedent is clear that a possible defense, standing alone, does not automatically defeat predominance. Even where defendants point to some evidence that a defense will indeed apply to some class members, which is more than [defendant] did here, courts routinely grant certification because 'Rule 23(b)(3) requires merely that common issues predominate, not that all issues be common to the class.' As the First Circuit has recognized, moreover, if evidence later shows that a 'defense is likely to bar claims against at least some class members, then a court has available adequate procedural mechanisms. For example, it can place class members with potentially barred claims in a separate subclass, or exclude them from the class altogether." And then, this pronouncement: "We hold that the mere mention of a defense is not enough to defeat the predominance requirement of Rule 23(b)(3). Holding otherwise and allowing such speculation to dictate the outcome of a class-certification decision would afford litigants in future cases 'wide latitude to inject frivolous issues to bolster or undermine a finding of predominance.' In light of the foregoing, particularly the class-wide evidence [plaintiffs] presented showing an absence of consent, we hold that speculation alone regarding individualized consent was insufficient to defeat plaintiffs' showing of predominance under Rule 23(b)(3). The district court abused its discretion in holding otherwise in this case." (Emphasis added.) The effects of these words will be hashed out case-by-case by district courts within the Sixth Circuit, and we'll be reporting on those cases as they unfold. As for the district court's dismissal of the action for lack of subject matter jurisdiction because of defendant's lapsed offers of judgment, the Sixth Circuit reversed that, too, in light of the Supreme Court's intervening decision in Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016) ("An unaccepted settlement offer -- like any unaccepted contract offer -- is a legal nullity, with no operative effect"). The case is Bridging Communities Inc. v. Top Flite Financial Incorporated, Sixth Circuit Court of Appeals, case no. No. 15- 1572, and the decision can be found here: http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0290p-06.pdf TOYOTA: Faces Class Action Over Soy-Based Vehicle Wiring -------------------------------------------------------- Mike Wehner, writing for BGR, reports that typically when you see a lawsuit over a faulty product in the automotive industry it's a simple manufacturing defect, lack of testing, or some other shortcoming that seems obvious in hindsight. A new Toyota lawsuit over bad wiring is none of those things, and it's hard to imagine anyone being able to predict such a thing would ever happen. You see, Toyota's been using some fancy new wires that are great for the environment. In fact, they're so nature-friendly, they're actually mouse food. The suit was filed by the owner of a 2015 Toyota Avalon named Heidi Browder. Ms. Browder alleges that, after discovering her vehicle was having problems starting, she popped the hood and found that multiple wires had been chewed through. The soy-based wire coverings Toyota has been using recently in place of the typical plastic coverings are apparently a rodent delicacy. Ms. Browder says that when she took the vehicle in to have its wires repaired, the Toyota mechanic told her that chewed wires is not an uncommon complaint for Toyotas. However, despite this allegedly being a known problem, Toyota refused to help pay for Browder's repairs. Ms. Browder also alleges that Toyota should have known this issue exists due to the sheer number of complaints that can be found online. She is hoping that the suit can be certified as a class action, which would potentially include thousands of vehicles like Browder's, which use the soy-based wire insulation. What's particularly funny about this whole situation is that it's not even the first rodent-chews-wires lawsuit of the year. In January, a class action suit alleged that Honda's soy-based wires made them too tempting for rabbits to resist, with video documentation of a rabbit having a feast inside a Honda engine bay. TRADEWINDS BEVERAGE: Faces False Advertising Class Action --------------------------------------------------------- Wadi Reformado, writing for Northern California Record, reports that a Los Angeles has filed a class-action lawsuit against Tradewinds Beverage Co., an Ohio business, citing alleged fraud and negligent misrepresentation. Angerlia Martin filed a complaint on behalf of all others similarly situated and the general public on Dec. 14, in the U.S. District Court for the Central District of California against Tradewinds Beverage Co. alleging that the Ohio business made false claims regarding their product. According to the complaint, the plaintiff alleges that she suffered damages from purchasing a falsely advertised product. The plaintiff holds Tradewinds Beverage Co. responsible because the defendant allegedly falsely claims their products are made with 100 percent natural ingredients despite containing artificial coloring. The plaintiff requests a trial by jury and seeks to enjoin the defendant, order a corrective advertising campaign, destroy all misleading advertising materials, restitution, statutory, compensatory, and punitive damages, interest, all legal fees and any other relief as this court deems just. She is represented by Jack Fitzgerald -- jack@jackfitzgeraldlaw.com -- Trevor M. Flynn - - trevor@jackfitzgeraldlaw.com -- and Melanie Persinger -- melanie@jackfitzgeraldlaw.com -- of The Law Offices of Jack Fitzgerald, PC in San Diego. U.S. District Court for the Central District of California Case number 2:16-cv-09249-PSG-MRW TRUMP UNIVERSITY: Class Action Settlement Gets Prelim. Court OK --------------------------------------------------------------- Rosalind S. Helderman, writing for Washington Post, reports that a federal judge has given preliminary approval to a deal in which President-elect Donald Trump will pay $25 million to settle fraud claims against his defunct Trump University real estate seminars days before he takes office. Judge Gonzalo Curiel, whom Trump had accused of being biased during the campaign because of his Mexican heritage, on Dec. 20 declared the settlement agreement "fair," "reasonable," and "adequate," paving the way for Trump to place money in escrow by Jan. 18, two days before he takes office. Former Trump University customers will then be able to seek access to the money, with some receiving refunds of up to 50 percent. Judge Curiel's sign-off follows the announcement of the settlement in November and comes as Trump appears to be wrapping up some vexing issues regarding his real estate and licensing company before taking office as president. He also in November dropped a lawsuit against Palm Beach County over airplane noise at his Mar- a-Lago Estate and on Dec. 21 settled labor agreements with worker's unions at two of his hotels. Trump has not yet explained, however, how he will avoid conflicts of interest as president stemming from his business dealings all over the world. The Trump University settlement ends two class action lawsuits that had been filed against the Trump seminars in California, as well as a lawsuit in New York filed by state Attorney General Eric Schneiderman. Former customers had alleged that the programs engaged in deceptive advertising, including by falsely promising that Trump had personally selected course instructors who would teach his personal tricks for succeeding in real estate. Although Trump insisted most customers were satisfied with the program, which were held in hotel ballrooms around the country, other disgruntled students complained they had lost thousands of dollars. They said customers were pressured to sign up for more and more expensive courses, including a mentorship program that cost more than $35,000. The fraud claims had been a major campaign issue as Trump's Republican primary opponents and Democrat Hillary Clinton argued his businesses had conned people through the program. Under terms of the settlement, Trump did not admit fault. With the judge's preliminary approval, notices will be posted seeking former Trump University customers who might qualify for refunds and asking if any object to the settlement. Of the $25 million, $4 million will be administered through Schneiderman's office. Curiel said he would hold a hearing in March to offer a final approval to the settlement. Trump has promised to restart Trump University in the future. "Throughout the nearly seven years we've spent prosecuting this action, our overarching goal has always been to help class members put Trump University behind them," said Amber Eck, co-lead counsel for the former students who sued. "We're obviously very pleased with Judge Curiel's ruling, which sets the stage for us to do just that, and we look forward to finalizing the settlement details over the coming months." A Trump Organization lawyer did not immediately respond to a request for comment. TRUMP UNIVERSITY: Trump Guarantees $25MM Settlement Funding ----------------------------------------------------------- Amanda Bronstad, writing for The National Law Journal, reports that President-elect Donald Trump has personally guaranteed that $25 million will be paid into an escrow account by Jan. 18, two days before his inauguration, as part of a class action settlement over his former Trump University. Lawyers on both sides of the litigation filed a motion on Dec. 19 asking U.S. District Judge Gonzalo Curiel to approve a deal reached last month. The settlement includes $4 million for New York Attorney General Eric Schneiderman, who brought a case in 2013. The rest is set to go to compensate about 7,000 former students, who alleged in two cases in California that Trump University falsely promised that Trump himself had hand-picked the instructors and that the program was an "accredited university." As part of the deal, class members are expected to get half of what they paid for, while plaintiffs attorneys at San Diego firms Robbins Geller Rudman & Dowd and Zeldes Haeggquist & Eck have agreed not to seek fees or costs for their work in the California cases, the oldest brought in 2010. "This is an excellent result for the class," Rachel Jensen -- rachelj@rgrdlaw.com -- a partner at Robbins Geller, wrote in an email. "Also, the fact that class counsel are providing their six-and-a-half years of services pro bono maximized the recoveries for former Trump University students around the country." Trump has admitted no wrongdoing as part of the deal, which is expected to compensate about 6,000 class members who bought a $1,495 real estate seminar and 1,000 who purchased packages worth between $9,995 and $34,995 that included an in-person mentorship. TUBEMOGUL INC: Brower Piven Files Class Action in California ------------------------------------------------------------ The securities litigation law firm of Brower Piven, A Professional Corporation, on Dec. 26 disclosed that it has commenced a class action the United States District Court for the Northern District of California on behalf of holders of the common stock of TubeMogul, Inc. ("TubeMogul" or the "Company"). Investors who wish to become proactively involved in the litigation have 60 days from the date of this notice to seek appointment as lead plaintiff. If you wish to choose counsel to represent you and the Class, you must apply to be appointed lead plaintiff and be selected by the Court. The lead plaintiff will direct the litigation and participate in important decisions including whether to accept a settlement for the Class in the action. Members of the Class will be represented by the lead plaintiff and counsel chosen by the lead plaintiff. No class has yet been certified in the above action. The complaint alleged violations of Sections 14(d)(4), 14(e) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and Securities and Exchange Commission ("SEC") Rule 14a-9 in connection with the proposed acquisition of the publicly owned shares of TubeMogul common stock by Adobe Systems Incorporated ("Adobe"), through its wholly owned subsidiary Merlin Global Acquisition, Inc. On November 10, 2016, Adobe announced that it had entered into a definitive agreement under which it will commence a tender offer to acquire TubeMogul for $14 per share in cash, for a total purchase price of approximately $540 million net of debt and cash. The complaint alleges that the proposed consideration is inadequate in light of TubeMogul's true value and its growth prospects. The complaint further alleges that the Schedule 14D-9 Recommendation Statement filed with the SEC provides materially incomplete and misleading information about the Company and the proposed transaction, in violation of the Exchange Act. If you are a shareholder of TubeMogul and would like to learn more about this lawsuit and your ability to participate as a lead plaintiff, without cost or obligation to you, please visit our website at http://www.browerpiven.com/currentsecuritiescases.html. You may also request more information by contacting Brower Piven either by email at hoffman@browerpiven.com or by telephone at (410) 415-6616. Brower Piven also encourages anyone with information regarding the Company's conduct during the period in question to contact the firm, including whistleblowers, former employees, shareholders and others. Attorneys at Brower Piven have extensive experience in litigating securities and other class action cases and have been advocating for the rights of shareholders since the 1980s. If you choose to retain counsel, you may retain Brower Piven without financial obligation or cost to you, or you may retain other counsel of your choice. You need take no action at this time to be a member of the class. TWINS GROUP: Combs May Renew Bid to Certify Class, Court Says ------------------------------------------------------------- The Hon. Thomas M. Rose denied the motion for conditional class certification, expedited discovery and court-supervised notice to potential opt-in plaintiffs filed by Plaintiff Aaron Combs in the lawsuit styled AARON COMBS, et al., for himself and all others similarly situated v. THE TWINS GROUP, INC., Case No. 3:16-cv-295 (S.D. Ohio). The Motion is denied without prejudice to renewal if the Plaintiff can make the factual showing required by 29 U.S.C. Section 216(b). Mr. Combs brought the action pursuant to the Fair Labor Standards Act and the Ohio Minimum Fair Wage Standards Act, for the alleged failure by the Defendant to pay overtime. He alleges that he worked for Twins Group as a crew member at its Taco Bell restaurant located in Moraine, Ohio. He seeks compensation for approximately 50 hours of unpaid overtime worked during a two-week period from March 22, 2016, to April 5, 2016. Judge Rose opined that Mr. Combs has failed to present sufficient evidence to support a finding that he and the other crew members are similarly situated, even under a more lenient evidentiary standard. Judge Rose noted that Mr. Combs's declaration does not contain facts showing that he has actual or even constructive knowledge that his fellow crew members at Taco Bell worked overtime hours for which they were not paid. A copy of the Order is available at no charge at https://goo.gl/amSlKT from Leagle.com. Plaintiff Aaron M. Combs is represented by: Bradley Lawrence Gibson, Esq. GIBSON LAW, LLC 17 W Main St. Tipp City, OH 45371 Telephone: (937) 667-5263 The Defendant is represented by: James Alan Climer, Esq. Stacy Virginia Pollock, Esq. MAZANEC, RASKIN & RYDER CO., L.P.A. 100 Franklin's Row 34305 Solon Road Cleveland, OH 44139 Telephone: (440) 287-8290 Facsimile: (440) 248-8861 E-mail: jclimer@mrrlaw.com UBER TECHNOLOGIES: 9th Cir. Won't Revisit Class Action Ruling ------------------------------------------------------------- Ben Hancock, writing for The Recorder, reports that the U.S. Court of Appeals for the Ninth Circuit on Dec. 21 declined to revisit a September ruling that steered class action claims on behalf of thousands of Uber drivers into arbitration. The decision is a blow to the class action plaintiffs bar, which has lamented the Ninth Circuit's opinion that Uber's 2013 and 2014 arbitration agreements were enforceable because they contained opt-out provisions. The lawyers who petitioned for en banc review had warned the holding "creates a new level of insulation" for arbitration agreements. In denying en banc review in Mohamed v. Uber Technologies Inc., however, the appeals court also made an amendment to its original opinion, backtracking on language about the consistency of Uber's arbitration agreements with the National Labor Relations Act. The court had declined to address last-minute arguments made by attorneys at Oakland employment law firm Goldstein, Borgen, Dardarian & Ho that the arbitration agreements should not be enforced because they violated the NLRA. But in a footnote, the unanimous panel also said that -- even if those arguments had been properly made -- they would not have succeeded because Uber's agreements gave drivers the choice to opt out. The decision to deny en banc review deleted that sentence. The lead attorney for the plaintiffs in the case, Laura Ho, could not immediately be reached for comment on Dec. 21. The Mohamed case, which centered on claims that Uber violated federal and California laws in conducting background checks on drivers, settled on a contingent basis for $7.5 million prior to the court of appeals hearing oral arguments. Shannon Liss-Riordan of Lichten & Liss-Riordan, who has pursued claims of driver employment misclassification by Uber in separate Massachusetts and California class actions, said she was "disappointed" with the court's decision to deny review. But she noted that in one of her cases, there is an appeal pending that will focus squarely on the NLRA issue. "The plaintiffs in Mohamed waived that issue, but we preserved it, so we look forward to the argument in our case at the Ninth Circuit," Ms. Liss-Riordan said in an email. A 2-1 Ninth Circuit panel ruled in August that the NLRA prohibits agreements that require employees to sign away their right to collectively pursue legal claims. Uber spokeswoman Sophie Schmidt said in an email statement the company was "pleased" with the court's decision. "We are pleased with the Ninth Circuit's ruling, and look forward to resolving the outstanding appeals in O'Connor and other cases," she said, referring to the California class action brought by Ms. Liss-Riordan. Uber is represented in the case by Theodore Boutrous Jr. of Gibson, Dunn & Crutcher. UMTH LAND: Plaintiffs' Motion to Remand Class Action Granted ------------------------------------------------------------ Delaware Law Weekly reports that in Fannin v. UMTH Land Dev. L.P., DeFAX Case No. D67452 (D. Del. Dec. 2, 2016) Robinson, J. (11 pages), defendants in this derivative action filed a notice of removal to federal court based on the Class Action Fairness Act. Plaintiffs' motion to remand to the Delaware Court of Chancery granted. UNITED STATES: Tribes Express Concern Over Pipeline Uncertainty --------------------------------------------------------------- Mary Hudetz, Susan Montoya Bryan and Regina Garcia Cano, writing for The Associated Press, report that for hundreds of protesters, it was cause to cheer when the Obama administration in December declined to issue an easement for the Dakota Access pipeline's final segment. But that elation was dampened by the uncertainty of what comes next: a Donald Trump-led White House that might be far less attuned to issues affecting Native Americans. "With Trump coming into office, you just can't celebrate," said Laundi Germaine Keepseagle, who is 28 and from the Standing Rock Sioux Reservation, where the demonstrators have been camped out near the North Dakota-South Dakota border. Anxiety over the 1,200-mile pipeline illustrates a broader uncertainty over how tribes will fare under Trump following what many in Indian Country consider a landmark eight years. President Barack Obama has won accolades among Native Americans for breaking through a gridlock of inaction on tribal issues and for putting a spotlight on their concerns with yearly meetings with tribal leaders. Under his administration, lawmakers cemented a tribal health care law that includes more preventive care and mental health resources and addresses recruiting and retaining physicians throughout Indian Country. The Interior Department restored tribal homelands by placing more than 500,000 acres under tribes' control -- more than any other recent administration -- while the Justice Department charted a process approved by Congress for tribes to prosecute and sentence more cases involving non-Native Americans who assault Native American women. Before Obama, a gap in the laws allowed for such crimes to go unpunished. In addition, the federal government settled decades-old lawsuits involving Native Americans, including class-action cases over the government's mismanagement of royalties for oil, gas, timber and grazing leases and its discrimination against tribal members seeking farm loans. "In my opinion, President Obama has been the greatest president in dealing with Native Americans," said Brian Cladoosby, chairman of the Swinomish Tribe north of Seattle and president of the nonpartisan National Congress of American Indians, based in Washington, D.C. "The last eight years give us hope going forward with the relationships we have on both sides of the aisle." Trump, meanwhile, rarely acknowledged Native Americans during his campaign and hasn't publicly outlined how he would improve or manage the United States' longstanding relationships with tribes. His Interior secretary pick, Republican Rep. Ryan Zinke of Montana, sponsored legislation that he says would have given tribes more control over coal and other fossil fuel development on their lands. But some of Trump's biggest campaign pledges -- including repealing health care legislation and building a wall along the U.S.-Mexico border -- would collide with tribal interests. In Arizona, Tohono O'odham Nation leaders have vowed to oppose any plans for a wall along the 75-mile portion of the border that runs parallel to their reservation. And the nonprofit National Indian Health Board in Washington says it's aiming to work with lawmakers to ensure the Indian Health Care Improvement Act remains intact. The law, which guarantees funding for care through the federal Indian Health Services agency, was embedded in Obama's health care overhaul after consultation with tribes. The government's role figures prominently in Native Americans' daily lives because treaties and other binding agreements often require the U.S. to manage tribal health care, law enforcement and education. Some tribal members say they're unsure how much Trump understands or cares about their unique relationship with the federal government. "I think there was a great hope that we had here in Indian Country with the direct dialogue that President Obama had established with tribal nations," said Duane "Chili" Yazzie, president of the Navajo Nation's Shiprock Chapter. "If a similar effort to communicate with us were carried on by the Trump administration, I would be surprised." Though most reservations lean Democratic in presidential elections, Trump does have some supporters in Indian Country. They hope the businessman can turn around lagging economies in rural reservations, such as the 27,000-square-mile Navajo Nation, which covers parts of Utah, New Mexico and Arizona. "Trump is pro-job growth, and tribes need a healthy dose of business creation," said Deswood Tome, a former spokesman for the tribe from Window Rock, Arizona. "To do that, a lot of federal barriers must be removed. We're the only ethnic group who have so much federal control in our lives." The Dakota Access pipeline illustrates another chasm between Obama and Trump. This fall, the pipeline dispute led Obama's administration to start tackling a final piece of its Indian Country agenda: guidelines for how cabinet departments should consult with tribes on major infrastructure projects. A top complaint from the Standing Rock Sioux was that the U.S. Army Corps of Engineers failed to properly consult with them before initially approving a pipeline route that ran beneath Lake Oahe, the tribe's primary source of drinking water. After the administration halted construction on the project in September to review the complaint, it held seven meetings with tribal leaders and began drafting a report on how federal officials should consult with tribes. U.S. Interior Secretary Sally Jewell said the report will be completed before Obama leaves office, and she expects it to have a lasting impact, even with an incoming administration that promises to undo some of the president's policies. What's unclear is whether Trump, who once owned stock in the pipeline builder, will seek to reverse the Army's decision in December to explore alternate routes. A spokesman said only that the president-elect plans to review the move after he takes office. However, Trump's transition team said in a recent memo to campaign supporters and congressional staff that he supports the pipeline's completion. In the meantime, Standing Rock Sioux Chairman David Archambault has begun lobbying for a meeting with Trump to make a case for his tribe's opposition to the project, which the chairman says threatens not just water but sacred cultural sites. "You have to respect Mother Earth; she's precious," Archambault said. "You can still believe in capitalism, and you can still invest in infrastructure projects, but these infrastructure projects should be focused toward renewable energy rather than fossil fuel development." UNIVERSAL HEALTH: Feb. 21 Lead Plaintiff Motion Deadline Set ------------------------------------------------------------ Pomerantz LLP on Dec. 27 disclosed that a class action lawsuit has been filed against Universal Health Services, Inc. ("Universal Health" or the "Company") (NYSE:UHS) and certain of its officers. The class action, filed in United States District Court, Central District of California, is on behalf of a class consisting of all persons or entities who purchased or otherwise acquired Universal Health securities between February 26, 2015 and December 7, 2016, both dates inclusive (the "Class Period"), seeking to recover compensable damages caused by defendants' violations of the Securities Exchange Act of 1934. If you are a shareholder who purchased Universal Health securities during the Class Period, you have until February 21, 2017 to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at www.pomerantzlaw.com. To discuss this action, contact Robert S. Willoughby at rswilloughby@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll free, ext. 9980. Those who inquire by e- mail are encouraged to include their mailing address, telephone number, and number of shares purchased. Universal Health, through its subsidiaries, owns and operates acute care hospitals, behavioral health centers, surgical hospitals, ambulatory surgery centers, and radiation oncology centers. The Complaint alleges that throughout the Class Period, Defendants made materially false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (1) Universal Health admitted patients based on its own financial considerations and not upon the medical necessity of the patient; (2) Universal Health would keep patients admitted until their insurance payments ran out in order to ensure the maximum payment for its services; (3) as a result, Universal Health's revenues from inpatient care relied on unsustainable practices; (4) in turn, Universal Health lacked effective internal control concerning its practices and policies of admitting patients; and (5) as a result, Universal Health's public statements were materially false and misleading at all relevant times. On December 7, 2016, BuzzFeed published an article titled "Intake", detailing its year-long investigation into Universal Health, which was "based on interviews with 175 current and former UHS staff, including 18 executives who ran UHS hospitals; more than 120 additional interviews with patients, government investigators, and other experts; and a cache of internal documents." The report stated that "[c]urrent and former employees from at least 10 UHS hospitals in nine states said they were under pressure to fill beds by almost any method -- which sometimes meant exaggerating people's symptoms or twisting their words to make them seem suicidal -- and to hold them until their insurance payments ran out." The report further stated that "[t]wo dozen current and former employees from 14 UHS facilities across the country told BuzzFeed News that the rule was to keep patients until their insurance ran out in order to get the maximum payment," and that "scores of employees from at least a dozen UHS hospitals said those facilities tried to keep beds filled even at the expense of the safety of their staff or the rights of the patients they were locking up." The report also quoted Rick Buckelew, a Universal Health employee who ran Austin Lakes Hospital in Texas until 2014, who stated that "[i]f an insurance company gave you so many days, you were expected to keep the patient there that many days" and that this "was a 'common practice' that was openly discussed in regional conferences as well as phone calls with hospital executives." On this news, shares of Universal Health's share price fell $15.01, or nearly 12% from its previous closing price, to close at $111.36 on December 7, 2016, damaging investors. With offices in New York, Chicago, Florida, and Los Angeles, The Pomerantz Firm -- http://www.pomerantzlaw.com-- concentrates its practice in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, the Pomerantz Firm pioneered the field of securities class actions. Today, more than 80 years later, the Pomerantz Firm continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. The Firm has recovered numerous multimillion-dollar damages awards on behalf of class members. VALVE: Faces Suit by Parents Over "Skins" Gambling -------------------------------------------------- Matt Day of Seattle Times reports that Bellevue video-game giant Valve is facing a lawsuit in Seattle filed by parents who say their children lost thousands of dollars wagering using tools overseen by the company. The lead plaintiffs in the case, filed in federal court, are unnamed parents in Oregon, Illinois, and Missouri, who say their sons lost thousands of dollars in so-called "skins" gambling in a marketplace Valve oversees. A spokesperson for Valve and a lawyer representing the company didn't respond to requests for comment December 23. No one answered the phone at the company's Bellevue office. Valve's Steam platform, an online video-game marketplace, and its hit game "Counter-Strike: Global Offensive" grew in recent years into hubs of gambling on competitive video gaming. In "CS: GO" and some other games sold on Steam, players can buy skins, or decorative in-game items, and trade or sell them for real-world cash to other players through the Steam platform. When linked with shadowy gambling websites, skins gambling grew into a multibillion-dollar business, industry observers say. After widespread complaints following a Bloomberg Newsreport, and the filing of at least two lawsuits, Valve ordered some websites that facilitate Steam gambling to stop. The new lawsuit, which seeks class-action status, is the latest iteration of a legal challenge that has made its way across the country in eight months of procedural wrangling. The case has its roots in a complaint filed this summer in Connecticut. At Valve's request, it was transferred to federal court in Seattle in August, and dismissed on jurisdictional grounds here in November. The plaintiffs refiled their case in King County Superior Court, only to have Valve again request and receive a transfer to federal court in Seattle. The current iteration of the lawsuit was filed on December 21. Valve hasn't yet addressed in court papers the substance of the plaintiffs' complains. The company did outline its view in response to a Washington State Gambling Commission cease-and-desist letter in October that told Valve to stop facilitating the transfer of skins for gambling activities. Valve counsel Liam Lavery said then that Valve does not engage in, promote or facilitate gambling and "there is no factual or legal support for these accusations." Valve has no business relationship with gambling sites, and the Steam software tools that the sites use for wagering purposes are legal in Washington, he said. The lawsuit likens that arrangement to a bartender who sells chips to customers on the way in, allows another person to cash out those same chips, and turns a blind eye to the gambling that took place in the meantime in the backroom. "Valve had the power to prevent the gambling operators from setting up shop, chose not to stop them, and in fact gave them the keys to the backroom," the lawsuit said. VERSA LOGISTICS: Doesn't Properly Pay Drivers, "Robins" Suit Says ----------------------------------------------------------------- Michael A. Robins, Jr., on behalf of himself and all others similarly situated v. Versa Logistics, LLC, and Does 1-10, Case No. BC644321 (Cal. Super. Ct., December 16, 2016), is brought against the Defendants for failure to pay its current and former truck drivers in California separately and on an hourly basis for their time spent taking their statutory rest periods and on their pre- and post-trip inspections, loading/unloading time, time spent cleaning their trucks, time spent fueling their trucks and on time spent on work-related paperwork. The suit also asserts the Defendants' failure to provide paid rest breaks and rest break premiums to current and former drivers in California, failure to provide complete wage statements, failure to provide meal periods and pay for missed meal period premiums, and failure to reimburse business expenses, including gas mileage expenses incurred, to its current and former truck driver in California. Versa Logistics, LLC operates a trucking and logistics company that transacts millions of dollars of business transporting general freight and intermodal commodities in California to destinations across California. The Plaintiff is represented by: Craig J. Ackerman, Esq. ACKERMANN & TILAJEF, P.C. 1180 South Beverly Drive, Suite 610 Los Angeles, CA 90035 Telephone: (310) 277-0614 Facsimile: (310) 277-0635 E-mail: cia@ackcrmanntilaief.com - and - Jonathan Melmed, Esq. MELMED LAW GROUP P.C. 1180 South Beverly Drive, Suite 610 Los Angeles, CA 90035 Telephone: (310) 824-3828 Facsimile: (310) 862-6851 E-mail: iin@melmedlaw.com VERSACE: Faces Class Action Over Secret "Black Code" ---------------------------------------------------- The Fashion Law reports that a former employee has filed suit against Versace, citing state law violations, including unfair business practices, racial discrimination, and wrongful termination, among others, in connection with the Italian design house's use of a secret "black code" to alert staff and security when a black shopper is in the store. According to Christopher Sampino's complaint, which was filed in November in Alameda County Superior Court, a state court in California, he was discriminated against and fired for being of mixed race, after working two weeks at the Versace outlet store in Pleasanton, California. Mr. Sampino alleges in his complaint that during the new-employee training, an unnamed manager informed him of the "D410 Code," the code used for labeling black clothing, as well as for use "in a casual manner when a black person entered the store." According to the suit, the manager explained to Mr. Sampino that the "code is used to alert co-workers that 'a black person is in the store.'" Mr. Sampino further alleges that he was harassed and subsequently terminated after informing the store manager that he is black. Per Mr. Sampino, despite having "met or exceeded expectations with regards to job performance," he was fired after working two weeks in September because he did not "understand luxury" and did not "know the luxury life." Versace "also told [Sampino] that he was being dismissed because he hasn't 'lived the luxury life.' Defendants told [Sampino] to quit because 'that would make the paperwork easier.'" In his complaint, Mr. Sampino further asserts he was subjected to an array of labor violations, including not being paid for time worked, not receiving rest periods and being wrongfully terminated -- all of which run afoul of California state law. He is seeking class action certification . If his proposed class action lawsuit is certified by the court, "similarly situated" individuals (aka employees who were subject to discriminatory treatment by Versace in the U.S. around the time Rose did) will be able to join in case at hand against the Italian brand and share in the settlement amount. In order for a proposed class action lawsuit -- one that gathers many individual claims together into a single lawsuit -- to be certified, the named plaintiff -- Mr. Sampino -- must show that all of the potential class members have claims that raise common legal and factual issues, making it most efficient to deal with all of the claims together. In short: all of the plaintiffs must be "similarly-situated." Versace has denied Mr. Sampino's claims in a subsequently filed response, and moved for summary judgment. The company also released the following statement: "Versace believes strongly in equal opportunity, as an employer and a retailer. We do not tolerate discrimination on the basis of race, national origin or any other characteristic protected by our civil rights laws. We have denied the allegations in this suit, and we will not comment further concerning pending litigation." The case is Christopher Sampino v. Versace USA, Inc., RG16839178. VOLKSWAGEN AG: U.S. Class Action System Better for Plaintiffs ------------------------------------------------------------- Karin Matussek, writing for Bloomberg News, reports that Andreas Tilp was born in Plochingen, Germany, studied law a short train ride away in Tuebingen, and works in the neighboring town of Kirchentellinsfurt. In what could be the biggest case of his decades of practice, he's representing hundreds of clients in a lawsuit against that most German of companies, Volkswagen, which will be heard in a courtroom in Braunschweig, a 45-minute drive from VW's headquarters. Sometimes, Mr. Tilp wishes he were American. "The German system is totally hostile to plaintiffs," he says in the converted 1920s textile mill that serves as his office. "It's no surprise that investors sue in the U.S. whenever they can." Mr. Tilp represents shareholders seeking damages of EUR5.2 billion ($5.4 billion) from Volkswagen. They say the company was late in disclosing a U.S. probe into cheating on emissions tests, an allegation VW denies. If the case were brought in the U.S., it would likely be easier to reach a settlement, as American attorneys did when they sued VW on behalf of car owners. Eight months after the emissions scandal broke, VW agreed to a $10 billion deal that provided U.S. buyers with as much as $10,000 each -- and the plaintiffs' attorneys with $175 million. For Mr. Tilp, it won't be that quick, and it will probably be far less lucrative. In the U.S., lawyers can file a suit for one client and ask that it be certified as a class action for everyone in a similar situation. Attorneys typically finance cases themselves, and most members of the class never see a lawyer (let alone a legal bill) but can get a check if the case is won or settled. In Germany, by contrast, each plaintiff must file individually and pay legal fees upfront. Investor suits -- but not other kinds of claims -- can be bundled for gathering evidence. If plaintiffs get a favorable ruling, though, they must resume their individual cases to determine damages. German plaintiffs who lose must pay their legal bills -- and those of the defendant, because of a loser-pays-all rule. Lawyers can't finance lawsuits and usually are barred from getting a share of money they recover, rules designed to keep attorneys from taking only the most lucrative cases. Germany does allow third parties to shoulder the risk of such cases, and Mr. Tilp is working with Irish and British firms to cover some of the costs of the VW litigation. "Attorneys could handle cases here much more efficiently if they could take contingency fees or finance their litigation," Mr. Tilp says. "German law cripples lawyers." For previous suits, Mr. Tilp worked around some obstacles by setting up sister law firms in Switzerland and on the Portuguese island of Madeira, where rules are less strict. He did the same in the U.S., after a prospective client joined a class action against Deutsche Telekom there that was later settled for $112 million. That road is blocked for holders of VW's Frankfurt- traded shares: A 2010 U.S. Supreme Court ruling makes it harder to sue companies in the U.S. when their shares aren't directly listed there. The VW scandal has given new life to a German government proposal to allow more joint actions. Under the plan, certified consumer associations and trade groups -- but not lawyers representing individual clients -- could file collective lawsuits. Claimants would sign up for only a small fee and avoid hiring their own attorney until the damages phase. That still won't mean U.S.- style payouts, because Germany doesn't allow punitive damages, and there are no jury trials, which critics say lead to bigger awards. The BDI, the main lobbying group for German companies, frets that the proposal could pave the way to what it calls "abusive excesses." The group says any move in that direction opens the door to other elements of U.S. litigation, such as discovery, in which plaintiffs' attorneys gain access to a company's internal information. That could unduly pressure companies to settle cases rather than fight them in court, says Heiko Willems, BDI's head of legal policy. "There's the danger of abuse," he says. "Companies shouldn't be named and shamed." Mr. Tilp well knows the frustrations of the German system. In 2001 thousands of shareholders sued Deutsche Telekom claiming they were misinformed in a stock sale, a case related to the 2005 U.S. settlement. Mr. Tilp has been involved in the suit for more than 15 years and the plaintiffs' lead attorney for a decade. A Frankfurt court in November finally ruled in their favor -- several months after Mr. Tilp's primary client died. Although that doesn't affect the outcome, it's unclear whether the client's heirs or other plaintiffs will see any money. The court found only that Deutsche Telekom made an error in its sales prospectus. Shareholders now must resume their individual suits, and the company might try to show that losses didn't result from that error. Mr. Tilp is optimistic the VW case won't take that long. He predicts the Braunschweig judges will minimize delays and rule by the end of 2018. After all, he says, in a globalized economy it's important for Germany to offer investors protection that's as robust as that available elsewhere. "The VW litigation," Mr. Tilp says, "is the last chance for the German capital market to show it's a worthwhile place to invest." The bottom line: The VW emissions scandal has spurred Germany's government to speed up rule changes that would allow more collective lawsuits. VOLKSWAGEN AG: Several Brands Face Emission Probes in Europe ------------------------------------------------------------ Bloomberg News reports that Volkswagen AG gained market share in Europe for the first time since its diesel-cheating scandal erupted in September 2015, a sign that the German manufacturer is regaining consumer trust. The region's biggest automaker accounted for 24.8 percent of car sales in November, compared with 24.6 percent a year earlier, the Brussels-based European Automobile Manufacturers' Association, or ACEA, said in a statement on Dec. 15. Industry-wide European registrations rose 5.6 percent in November to 1.19 million vehicles, putting the sector on track for its third annual gain. Volkswagen outperformed with a 6.3 percent increase across the group's brands, bringing its expansion in the first 11 months to 2.9 percent. Europe's auto sector has been recovering since hitting a two- decade low in 2013, supported by economic growth and improved consumer confidence in countries including Germany and France. While sales growth this year has slowed as the market shows signs of peaking, demand remains resilient in the face of Volkswagen's emissions-cheating crisis, Brexit and political uncertainty amid a series of elections and referendums. "European sales developed very well in 2016," Peter Fuss, a partner at consultancy EY, said in a statement. "However, next year's growth will be significantly lower, which is partly a result of the high starting point but also the increasing economic and political headwinds." Volkswagen's November gain was propelled by a 6.8 percent increase at Audi and a 29 percent surge at the Spanish Seat brand. The company's main VW marque rose 0.8 percent to 139,226 vehicles in November, narrowing its market share to 11.7 percent from 12.3 percent a year ago, showing that the company still isn't out of the woods. The stock has lost 20 percent since the carmaker admitted to cheating on emissions tests 15 months ago. Scandal impact While Volkswagen has made progress in digging out of the emissions crisis, several of its brands still face probes and lawsuits across Europe and beyond. German regulators are investigating whether luxury-car unit Porsche manipulated fuel-economy data on its vehicles by installing a device that can detect whether the engine is on a testbed. In the UK, the carmaker along with its Audi, Seat and Skoda units is facing their first class-action style lawsuit over similar allegations. Market share losses over the past year continue to weigh on the German carmaker despite the November turnaround, with its deliveries accounting for 24.1 percent of the European total in the first 11 months, down from 25 percent in the same period a year earlier. Fiat Chrysler Automobiles NV and Renault SA have been among the biggest beneficiaries of Volkswagen's tarnished image. Renault boosted sales 17 percent in November and Fiat climbed 10 percent, continuing market-share gains. Mercedes-Benz parent Daimler AG and luxury-car rival BMW AG both climbed 12 percent. Despite uncertainty, preparations for Brexit haven't significantly hurt demand in the UK yet, with registrations rising 2.9 percent in November and increasing 2.5 percent so far this year. November sales in Germany, the region's biggest market, gained 1.5 percent. The ACEA compiles numbers from the European Union's 28 member countries, excluding Malta, plus Switzerland, Norway and Iceland. Britain's decision to exit the European Union will probably start hurting UK sales next year, according to LMC Automotive, which predicts that car-delivery growth in western Europe will slow to 1.4 percent in 2017 from 5.9 percent this year. VOLKSWAGEN GROUP: Faces "Saavedra" Suit Over Defeat Device ---------------------------------------------------------- Robert Saavedra and Armando Rodriguez, on behalf of themselves and all others similarly situated v. Volkswagen Aktiengesellschaft; Volkswagen Group of America, Inc.; Audi Aktiengesellschaft; Dr. ING. H.C. F. Porsche Aktiengesellschaft; Martin Winterkorn; Matthias Muller; Michael Horn; Rupert Stadler; Robert Bosch GMBH; Robert Bosch LLC; and Volkmar Denner, and Does 1-10, Case No. 3:16-cv-07214-CRB (N.D. Cal., December 16, 2016), alleges that the Defendants are engaged in the fraudulent and deliberate use of a "defeat device," a secret software algorithm that was designed and installed to cheat emission tests. The Defendants are in the business of designing, developing, manufacturing, and selling luxury automobiles. The Plaintiff is represented by: Raymond P. Boucher, Esq. Maria L. Weitz, Esq. BOUCHER LLP 21600 Oxnard Street, Suite 600 Woodland Hills, CA 91367-4903 Telephone: (818) 240-5400 Facsimile: (818) 340-5401 E-mail: ray@boucher.la weitz@boucher.la - and - Todd M. Schneider, Esq. Carolyn Hunt Cottrell, Esq. Keenan L. Klein, Esq. SCHNEIDER WALLACE COTTRELL KONECKY WOTKYNS LLP 2000 Powell Street, Suite 1400 Emeryville, CA 94608 Telephone: (415) 421-7100 Facsimile: (415) 421-7105 E-mail: tschneider@schneiderwallace.com ccottrell@schneiderwallace.com - and - Sahag Majarian II, Esq. LAW OFFICES OF SAHAG MAJARIAN II 18250 Ventura Blvd. Tarzana, CA 91356 Telephone: (818) 609-0807 Facsimile: (818) 609-0892 E-mail: sahagii@aol.com VOLKSWAGEN GROUP: Settles 2.0L TDI Emissions Class Action --------------------------------------------------------- Volkswagen and Canadian class counsel on Dec. 19 announced that they have agreed to resolve consumer claims in Canada related to the 2.0L TDI emissions matter for approximately 105,000 affected vehicles nationwide, subject to court approval. The proposed settlement provides for cash payments to eligible owners and lessees, and many of these settlement class members will also have choices that may include vehicle buybacks, trade-in, emissions modification (if approved by regulators) and early lease termination. The total value of the benefits is up to CAD $2.1 billion. This result was reached by Volkswagen and Canadian class counsel in consultation with the Commissioner of Competition in Canada. Volkswagen Group Canada also has agreed with the Commissioner to resolve related civil consumer protection concerns with the agreed benefits in the proposed class settlement, as well as with a CAD $15 million civil administrative monetary penalty. "Volkswagen's primary goal has always been to ensure our Canadian customers are treated fairly, and we believe that this proposed resolution achieves this aim," said Volkswagen Group Canada President and Chief Executive Officer, Maria Stenstroem. "We are working hard to earn back the trust of our customers, dealers and regulators, and today is an important step in that effort. We appreciate the engagement of the other parties to these agreements and thank our Canadian customers for their continued patience." Harvey T. Strosberg QC -- harvey@strosbergco.com -- one of the two lead class counsel in the national class action certified in Ontario said: "Our team of lawyers is delighted to deliver to the Settlement Class Members a just settlement, valued at up to $2.1 billion, without legal costs to them." Charles M. Wright, the other lead class counsel in the national class action certified in Ontario said: "Our clients were clearly looking for finality and choices, and we hope that through this agreement we have provided both." Sylvie De Bellefeuille -- sdebellefeuille@option-consommateurs.org -- Legal Advisor at Option consommateurs, Representative Plaintiff for the Quebec Settlement Class Members, said: "We are very pleased with this outcome. This is a great settlement for all Canadian consumers. Option consommateurs is proud to play a leadership role in large-scale class actions and consumer-related issues of national scope. We thank Belleau Lapointe, our lawyers in this class action, who have done an exceptional job for the benefit of all Canadian Settlement Class Members." Proposed 2.0L TDI Settlement Program in Canada The proposed nationwide class settlement is subject to approval by two courts. Approval hearings will take place around the end of March 2017 before the Ontario Superior Court of Justice in Toronto and the Superior Court of Quebec in Montreal. If approved, the 2.0L TDI settlement program in Canada will include: -- Cash payments to eligible owners and lessees of approximately 105,000 affected vehicles nationwide. -- Many of these eligible settlement class members can also choose to sell their vehicle to Volkswagen (the buyback option) or terminate their lease without penalty, or, if an emissions modification is approved, choose to keep their vehicle and have it modified at no charge and receive an extended emissions warranty. -- An eligible vehicle's value for a buyback will be determined based on the Canadian Black Book(R) Inc. wholesale value as of September 18, 2015, with adjustments for factory options and mileage at the time of the buyback offer. Eligible owners can also choose to trade in their vehicle and apply its fair market value at that time towards the purchase of a new or used Volkswagen or Audi vehicle. In addition, they will receive payment of any amount by which their vehicle's wholesale value as of September 18, 2015 exceeds its fair market value at the time of the trade-in. The proposed settlement agreement and Court-approved notices summarizing its terms can be found at www.VWCanadaSettlement.ca. Starting on or around January 4, 2017, the Court- approved notices will be published in newspapers and online media and sent to settlement class members. Settlement class members may begin to take steps to determine their eligibility for benefits by visiting the Check My Eligibility and Vehicle Look-Up sections at www.VWCanadaSettlement.ca, or by calling 1-888-670-4773 for assistance with these steps. Settlement class members will need their vehicle identification number. Instructions on where to find this information are available online. Eligible settlement class members who wish to make a claim for benefits under the settlement do not need to take any action at this time. The period to submit a claim will not begin until after the proposed settlement receives approval by the Courts. More detailed information about the options settlement class members may have, including the choice to "opt out" of or "object" to the settlement by March 4, 2017, is available at www.VWCanadaSettlement.ca. Notes to Editors: The following 2.0L TDI engine vehicles are included in the proposed 2.0L TDI settlement program in Canada: -- VW Jetta 2009-2015 -- VW Jetta Wagon 2009 -- VW Golf 2010-2013, 2015 -- VW Passat 2012-2015 -- VW Beetle 2013-2015 -- VW Golf Wagon 2010-2014 -- VW Golf Sportwagon 2015 -- Audi A3 2010-2013, 2015 Class settlement benefits of up to CAD $2.1 billion assumes that 100% of eligible settlement class members participate in the settlement program, and that 100% of the participants eligible for the buyback option choose that option. Amounts for legal fees and expenses of class counsel that are approved by the Courts will be paid by Volkswagen and will not reduce the benefits to eligible settlement class members. The agreements do not apply to owners or lessees of 3.0L TDI V6 vehicles. Proposed class actions that are under way will continue on their behalf. The class settlement and agreement with the Commissioner of Competition are not an admission of liability by Volkswagen. By their terms, they are not intended to apply to or affect Volkswagen's obligations under the laws or regulations of any jurisdiction outside Canada. Emission regulations and vehicle standards vary from country to country. Regulations governing nitrogen oxide (NOx) emissions limits for vehicles in Canada are stricter than those in other parts of the world and diesel engine variants also differ significantly. About Volkswagen Group Canada Inc. Founded in 1952, Volkswagen Group Canada Inc. is headquartered in Ajax, Ontario, and the largest volume European automotive nameplate in Canada. It is a subsidiary of Volkswagen AG, headquartered in Wolfsburg, Germany. Volkswagen is one of the world's largest producers of passenger cars and is Europe's largest automaker. About Option consommateurs Option consommateurs is a not-for-profit organization whose mission is to promote and defend the rights and interests of consumers. In order to do so, it institutes class action suits. Option consommateurs is interested in various issues, namely business practices, financial services, energy, agro food and health. WALMART: Thousands Get Early Christmas Present From Lawsuit ----------------------------------------------------------- Daniel Hamburg at WJACTV reports that about 187,000 people across Pennsylvania are in the process of receiving what might be an unexpected Christmas present. A class-action lawsuit was filed a decade ago against Walmart for lost wages and it was finalized in early 2016. The lawsuit alleged that the discount retailing chain failed to compensate its hourly employees for missed and shorted rest and meal breaks, and also required them to work off the clock. Now employees are starting to get a paycheck in the mail from that lawsuit. Ruth Baer was employed by Walmart from 1998 to 2000. When she worked there, she said she was supposed to get an hour break and two 15-minute breaks. "You didn't necessarily (get) those 15-minute breaks," Baer said. "You were a lot of times working during those 15-minute time period, whether they needed people being called to the registers for extra help, or whatever, you were already locked off the clock, so you didn't get paid for that." In April, the Pennsylvania Supreme Court denied Walmart's appeal of a 2014 ruling that it review the $188 million award. Hourly employees who worked at Sam's Club or Walmart from March 19, 1998 to May 1, 2006, were eligible to be included in the lawsuit. Baer said the check she got a week ago came at just the right time -- before Christmas. "I am not mad at Walmart in any way shape or form," Baer said. "I want to make sure that's very clear because I get along well with our Somerset Walmart. But I just said that it was a real blessing for the people in Somerset." Her early Christmas present was almost $300. "I guess the money they actually owed me was actually only $159.04, but because it took so many years for the check to actually come, the interest was another $128, so that's where they come up with $264.21." Her friend Bonnie Pannunzio said she received a little over $3,000. "With Christmas coming, and there was just a lot going on and the money coming in, that just really helped a lot," Pannunzio said. "Walmart has had strong policies in place to make sure all associates receive their appropriate pay and break periods," a statement released by Walmart said. "Most of the claims are over 10 years old. We have taken additional steps over the last decade, including enhancing our timekeeping systems and additional training, to make sure all our associates understand the importance of those policies and comply with them." According to court documents, after interest, Walmart had to pay out more than $241 million. Walmart said the distribution of funds started Dec. 9, and if you have questions about the payments, you should contact the administrator, not Walmart. WEGMANS FOOD: Faces Class Action in New York Over FCRA Violation ---------------------------------------------------------------- James Goodman, writing for Democrat and Chronicle, reports that Wegmans Food Markets has been accused of violating the Fair Credit Reporting Act in a lawsuit alleging the company failed to give proper notification to job applicants and employees who became the subjects of consumer background reports. The civil lawsuit, filed in the U.S. District Court for the Western District of New York, was brought by Ashleigh Wheeler of Rochester, who was hired in 2013 by Wegmans as a cashier, and Jerah Brewster of Ithaca, who was hired in 2015 by Wegmans as a pharmacy technician and later worked as a coffee shop attendant. The local law firm Thomas & Solomon is representing Wheeler and Brewster and filed the lawsuit as a class action complaint on behalf of all employees and job applicants in the United States who were the subjects of consumer reports obtained by Wegmans over the past five years. "Using the services of a third party, Wegmans routinely obtains and relies on information in the consumer report to evaluate prospective and current employees," says the lawsuit. Wegmans, the lawsuit alleges, "acted willfully and in deliberate or reckless disregard of its obligations and the rights of plaintiffs Wheeler, Brewster and other class members without making the required disclosure." Jo Natale, vice president of media relations for Wegmans, issued a statement saying: "We are confident that our process for screening job applicants, including the disclosure that a background check will be conducted, fully complies with federal law." Lawyers from the Thomas & Solomon firm did not respond to requests for comment. The individual plaintiffs could not be reached. The complaint says Wheeler and Brewster completed Wegmans' standard electronic documents related to their anticipated employment and that included authorization to conduct a background check. But the lawsuit says that Wegmans' online authorization for a background check fails to make clear that Wegmans would obtain consumer reports. The Fair Credit Reporting Act, says the lawsuit, requires an employer or prospective employer to disclose in writing to the person who would be the subject of a consumer report before such a report is obtained. The notification, says the lawsuit, is supposed to be made in a document that is solely for this purpose -- and Wegmans allegedly didn't do that. Applicants have a right to obtain their consumer reports and to have errors in the reports corrected under the FCRA. Wegmans' background check authorization document, according to the lawsuit, also releases Wegmans, former employers and all other persons or entities contacted by Wegmans from all liabilities related to the release of information related to the check. The plaintiffs allege that the inclusion of this provision in the same document as the background authorization violates the FCRA. Wheeler and Brewster claim they were misled about the nature and purpose of giving consent and had their privacy invaded. The lawsuit seeks not less than $100 and not more than $1,000 for each violation as well as punitive damages in the amounts. WELLS FARGO: Accused of Fraudulent Conduct Over Stock Price ----------------------------------------------------------- Harry Kirschenbaum, individually and on behalf of others similarly situated v. Wells Fargo Bank, National Association, Case No. 609900/2016 (N.Y. Sup. Ct., December 16, 2016), alleges that Wells Fargo implemented a fraudulent scheme to increase stock price by aggressively pushing their employees to open accounts to increase their cross-sell numbers and did not put any barriers or checks in place to see if the accounts were fraudulently and illegally opened or not. Wells Fargo Bank, National Association operates a financial services company located at 101 North Phillips Avenue, One Wachovia Center, Sioux Falls, South Dakota 57104. The Plaintiff is represented by: Brett R. Cohen, Esq. Jeffrey K. Brown, Esq. Michael A. Tompkins, Esq. LEEDS BROWN LAW, P.C. One Old Country Road, Suite 347 Carle Place, NY 11514 Telephone: (516) 873-9550 WHOLE FOODS: Workers File Class Action in D.C. Over Bonuses ----------------------------------------------------------- Justin Wm. Moyer, writing for Washington Post, reports that one current and one former employee of a District of Columbia Whole Foods store filed a federal class-action lawsuit on Dec. 20 against the grocery chain, alleging that the company cheated them out of bonuses. Whole Foods said that nine managers at stores in Maryland, Virginia and the District were fired for gaming the chain's "gainsharing" program, which awards bonuses to employees whose departments come in under budget. Whole Foods didn't explain the nature of the manipulation or say which locations were affected, saying only that the incident was under investigation and isolated to a small number of its 457 stores. Now, in a lawsuit filed in U.S. District Court for the District of Columbia, a current and a former employee of the Whole Foods location on P Street in Northwest Washington say that the chain "engaged in a nationwide scheme to strip hard-working employees of earned bonuses in order to maximize their own profit." Under gainsharing, the suit alleges, employees of departments that come in under budget are supposed to share in surpluses, but Whole Foods avoided paying by shifting labor costs to other departments. The chain also created "fast teams" -- employees that "float from one department to another" and "shifted labor costs among departments without properly accounting for it," the suit says. A spokeswoman for Austin-based Whole Foods said the company is investigating the allegations. "We are still in the process of investigating the issues raised in the recently filed lawsuit and, as we do with any allegations affecting our Team Members and customers, we will continue to conduct a thorough inquiry," company spokeswoman Brooke Buchanan said in a statement. "Once our investigation is complete, we will take all necessary steps to correct any errors we identify." YAHOO! INC: Class Action May Expand to 1.5 Billion Accounts ----------------------------------------------------------- Daniel R. Stoller, writing for Bloomberg BNA, reports that a massive putative class of consumers already suing Yahoo! Inc. over breached personal data may expand to cover another 1 billion compromised accounts, class action attorneys said. Two huge data breaches that Yahoo revealed in the past four months may be consolidated in Silicon Valley's federal court, they told Bloomberg BNA. If consolidated, Silicon Valley stalwart Judge Lucy Koh would likely be tasked with presiding over the largest data breach in history. Her past experience handling some of the technology sector's trickiest cases, such as Apple Inc. and Samsung Electronics Co.'s long-running patent case, may help consumers and companies better handle the complex litigation ahead. Jay Edelson, plaintiff-side partner and founder of Edelson PC in Chicago, told Bloomberg BNA Dec. 15 that the data breach litigation likely "will get rolled up" into a single multidistrict case. Additionally, any "derivative hacks -- i.e. hacks of specific user accounts on other, unrelated services," may also get pulled into the same multidistrict litigation. Barry Goheen, class litigation partner at King & Spalding LLP in Atlanta, told Bloomberg BNA Dec. 15 that most data breach litigation gets settled before the court even considers class certification. There may be some commonalities with the breaches, but combining two breaches of such magnitude is "uncharted waters," he said. Yahoo said in a Dec. 14 statement that it had discovered a major data breach that affected over 1 billion accounts. The company said in a statement that it hasn't been able to identify the intrusion associated with the theft, which occurred in August 2013. The recent breach has also reinvigorated calls for Verizon Communications Inc. to abandon its deal with Yahoo or drastically cut its agreed to merger price of $4.8 billion. The deal was expected to close in the early part of 2017, Bloomberg data show, but the recent breach may have impacted those plans. Yahoo is the ninth largest public internet media company in the world with approximately $39 billion in market capitalization, Bloomberg data show. Similar Hacks, Common Facts? On the same day of the recent announcement, a class complaint -- what is no doubt the first of many -- was filed in the U.S. District Court for the Northern District of California claiming Yahoo failed to provide adequate data security to "protect users' personal and private information." Multiple federal class actions were filed in regards to the first breach that affected over 500 million accounts. The Judicial Panel on Multidistrict Litigation consolidated 14 class complaints from the first breach. The first breach was disclosed in September but Yahoo may have known about the attack as early as 2014. The question now is whether lawsuits over the two incidents will be consolidated into a single proceeding. In general, cases aren't consolidated unless they arise from common questions of fact. In this instance, that might mean whether the hacks in the two breaches were carried out by similar means or exploited some common data security vulnerability. Goheen said that if the plaintiffs are able to prove through discovery that the same security flaw existed in both data breaches then class certification may be appropriate. However, a company simply experiencing a prior data breach "doesn't satisfy commonality at all," he said. Although Yahoo may be hoping the cases are consolidated to save attorneys fees and other litigation costs, it will still have to fight state litigation, federal and international enforcement probes and almost certain congressional investigations. Yahoo spokesman Charles Stewart declined to comment to Bloomberg BNA on the ongoing litigation. YAHOO! INC: May Face Fines Over Data Breach Once GDPR Enforced -------------------------------------------------------------- Elliott Haworth, writing for City A.M., reports that at the dawn of the internet, Google and Yahoo were in stiff competition for search dominance. Many think the former's success was due in part to its name becoming a ubiquitous verb for searching online. But decades on, semantic development has finally caught up with Yahoo. Its name is now synonymous with bad data practice. In both 2013 and 2014, the company was responsible for the biggest data breach in history, affecting 1bn and 500m accounts respectively. It faces class action lawsuits from disgruntled users over its failure to notify them of a cybersecurity breach. As context, a similar case involving retailer Target was settled for $39m last year. But class action lawsuits will be the least of businesses' worries once the EU's General Data Protection Regulations (GDPR) are enforced in a little over 18 months. Under the new regulations there are myriad reasons a fine could be imposed, three of which Yahoo has violated. If an EU citizen's data is breached; if it transpires that the systems in place were not GDPR compliant; or if the business fails to notify users within 72 hours, it can be fined 4 per cent of its global group revenue or EUR20m, whichever is greater. There's no scope for retroactive prosecution under GDPR, so Yahoo is off the hook regarding these breaches. But analysing the consequences hypothetically, as if it was already enforced, is an interesting way to understand just how far reaching GDPR is. Yahoo's 2015 revenue was $4.9bn, meaning that the hypothetical 4 per cent fine would be $198m per breach. Not company-killing money for a behemoth, but certainly impactful. Pricing in such heavy fines and lawsuits to results would knock profit margins off course, likely spooking investors, and resulting in further losses. The reputational damage could take years to rectify, if at all. Yahoo said it discovered the first breach in July. It didn't notify Verizon, which is in the process of acquisition, until September. In the US, there are notification laws -- currently 47 states have them. But the thresholds are typically based on harm caused to consumers, which may be difficult to prove in this incident. Under GDPR a business has 72 hours to report a breach to those affected, otherwise, again, it will face a penalty. Quite how the fines will be enforced is presently unclear, according to Paul Glass, partner in the data protection team at Taylor Wessing. "Regulators aren't engaged with how they would price a fine like this, or what the process would be", he says. "But if I was to speculate, there would be a draft penalty notice, which goes to Yahoo, with an indication of the level of fine -- something like the early settlement regime similar to the FCA. I think that there would probably be some sort of room for negotiations." To agree an early settlement could work in favour of a business looking to quickly rectify and protect its reputation the best it can. Sitting on a breach like Yahoo did certainly makes you look suspicious. Verizon is in the process of acquiring Yahoo for $4.83bn, but is exploring options to either cancel or renegotiate the price following further details of the breach. Verizon said it will "review the impact of this new development before reaching any final decision". But had the acquisition been finalised, would it be responsible for Yahoo's breach? Under GDPR the so-called data controller is liable, "which would be Yahoo," says Glass. "Post acquisition it would continue to be, unless it changes how it manages data." But like Myspace before it, Yahoo is being purchased, in part, for its plethora of user data, as well as its stake in Alibaba and Yahoo Japan. It's likely that if Verizon sees the acquisition through, it will become the data controller, and therefore liable in the future. In this hypothetical model, had the breach been under Verizon, based on revenues of $131.6bn last year, a 4 per cent fine would make it liable for $5.2bn. While hypothetical, it paints a picture of things to come. If a multinational that deals with consumer data as a core function of its business can't get on top of its security and compliance, what hope do smaller businesses have? The Yahoo breach should be a wake up call to businesses of all scopes and sizes. Research out on Dec. 18 from Veritas surveyed over 2,500 senior technology decision makers across the globe, and found that more than half of organisations have failed to begin any kind of preparation to meet even the minimum standards of GDPR. Businesses should be adhering to GDPR as best practice. There is no excuse for poor data management -- you can't just blame Russia and hope it all blows over. GDPR is just 18 months away, and unpreparedness, while not on a Yahoo scale for most, could cost your business dearly. The fines are heavy, but the long lasting reputational damage could be a killer. Don't "Yahoo it". YAHOO! INC: Impact of Data Breach on Verizon Deal Uncertain ----------------------------------------------------------- Jennifer Williams-Alvarez, writing for Corporate Counsel, reports that it remains to be seen whether Yahoo Inc.'s recently-revealed data breaches will nix its sale to Verizon Communications Inc. But whatever happens, M&A lawyers say the Yahoo-Verizon deal illustrates the increasing importance of addressing the risk of a data breach when negotiating an acquisition. It didn't' take long for the $4.8 billion acquisition, announced in July, to get thrown into question. In September, Yahoo confirmed that a 2014 hack impacted at least 500 million customer email accounts. And on Dec. 14, Yahoo admitted that it had suffered yet another breach in 2013, this time affecting more than one billion user accounts, leading to reports that Verizon might be looking to back out of the deal, negotiate a lower price or have Yahoo assume responsibility for lasting damage caused by the hack. Verizon has said it is evaluating the situation and "will review the impact of this new development before reaching any final conclusions," Bloomberg reported. The risk of a data breach is taking on a bigger role in M&A agreements, says James Abbott -- abbott@sewkis.com -- a partner at Seward & Kissel. "We are now seeing in purchase agreements more- specific representations about data security, compliance with privacy laws and data breaches and hacks," he says. "Counsel and companies are going to focus on it more because it's a scenario that brings more risk." In fact, the entire M&A process is showing signs that data security is a priority, says Brandon Robinson -- bnrobinson@balch.com -- a partner in Balch & Bingham's Birmingham, Alabama, office. "What you're seeing is cybersecurity and privacy is increasingly being addressed in the M&A process," he says. "And it's a combination of due diligence and representations and warranties that address that." While Mr. Robinson says it's hard to make blanket statements about these deals, there are generally some key areas of risk that should be dealt with, either by asking a target company or including it in the deal. For starters, the incident history should be looked at to see if there have been previous data breaches and how they were dealt with, he explains. Contractual liability related to vendor management should also be considered, says Robinson. "You want some sort of assessment of the company's vendor management because that's a key area where data breaches often reside," he says. Regulatory compliance should additionally be examined, Robinson says, to see where a target company might fall short of legal obligations. This goes hand in hand with looking at the privacy representations that were made to consumers when it comes to data being collected, he adds. The deal itself also might include statements from the seller to address the risk of a breach, says David Czarnecki -- dczarnecki@mbbp.com -- senior attorney at firm Morse, Barnes-Brown & Pendleton. "There may be specific statements that there is not a breach or a knowledge qualifier" to say there are no known breaches and/or vulnerabilities, he says. "There is a whole section that is added to agreements now that deals with data privacy and security. Or at least there should be and [these statements] should be considered." In the Verizon deal with Yahoo, there are, in fact, a number of knowledge qualifiers related to data security, according to a proxy statement filed by Yahoo with the U.S. Securities and Exchange Commission on Sept. 9. One, for instance, says to Yahoo's knowledge, there have been no third-party claims of a security breach. Another reads that if there has been a failure to implement proper policies related to privacy and data security, any theft or unauthorized access is not reasonably expected to have a "Business Material Adverse Effect." A material adverse effect may be Verizon's way out of the deal, if it can be shown. Though this a pretty high threshold, says Abbott. "When something significantly negative happens between signing and closing, you always have the possibility that the acquiring company will want out of the deal," he says. "This revolves around a materially adverse effect. But that's a really high standard, so it's often a bluff." Indeed, pursuing the possibility of using a material adverse effect clause may be a strategy to cut the cost of the deal, says Jeffrey Gordon, a Richard Paul Richman professor of law at Columbia Law School. "If revelation of the prior hack had a 'Business Material Adverse Effect,' this could give Verizon the right to terminate the transaction," he says. "Although these things are hotly contested. More likely, Verizon would have some leverage to renegotiate the price." YAHOO! INC: Data Breaches Unlikely to Impact Verizon Deal --------------------------------------------------------- Olga Kharif, writing for Bloomberg News, reports that the second major hack of Yahoo! Inc. user accounts is unlikely to derail Verizon Communications Inc.'s $4.83 billion acquisition of the tech giant, with investors and the public becoming inured to near- daily disclosures of cyberattacks. Hundreds of U.S. companies fall prey to hackers every year and, in many cases, the data breaches neither hurt bottom lines nor scare away customers for too long. After initial anxieties ease, everyone generally moves on. Experts say the same holds true for Yahoo and Verizon. "I tend to not feel like these hacks are that big of a deal in the broader scheme of things," said Michael Mahoney, senior managing director at Falcon Point Capital, which invests in wireless companies. "Obviously they can be damaging. But it doesn't take too long before people forget about it." In the U.S. especially, data breaches continue to mount. Within the past few years, hackers have infiltrated Sony Corp., Target Corp., Home Depot Inc., JPMorgan Chase & Co., auction site EBay Inc. and health insurer Anthem Inc. Almost 1,000 data breaches, including Yahoo's, occurred in the U.S. in 2016, according to the Identity Theft Resource Center. And in all, more than 35 million critical personal records, including social security and passport numbers and medical and banking data, were exposed in 2016. But Yahoo's is one of the largest-scale data breaches reported to date. The Sunnyvale, California-based company said that cyber- thieves in 2013 siphoned information from more than 1 billion Yahoo accounts, including users' e-mail addresses, scrambled account passwords and dates of birth, data that allow criminals to go after more sensitive personal information elsewhere online. It was the second disclosure of a major data breach since Verizon agreed to buy Yahoo. In September, the tech company revealed that more than 500 million users' data had been hacked in a separate, state-sponsored attack in 2014. "There are many breaches with many entities that have these types of breaches occurring," said Eva Casey Velasquez, chief executive officer of the Identity Theft Resource Center. Since Target's data breach in 2013, public sentiment has shifted, Velasquez said. "People know what a data breach is. But because it did become so ubiquitous in our conversation, there's a little bit of apathy." And not all breaches are created equal, said Emily Mossburg -- emossburg@deloitte.com -- a principal at cyber-risk services practice at Deloitte & Touche LLP. Stolen names and account information don't necessarily have a "broader impact." Manageable Costs Costs of data breaches have been substantial but not devastating. Target and Home Depot estimated that their data breaches resulted in about $200 million each in expenses not covered by insurance. Those are minimal amounts for big companies their size. And depending on the type of hack and the data stolen, Yahoo's legal liability may be negligible. Benjamin Dean, president of Iconoclast Tech, a data-security consultant, said Yahoo is unlikely to incur large losses as a result of recent class-action lawsuits. "The track record for successful class actions relating to stolen non-payment card data isn't good," Mr. Dean said. "Those bringing the class action typically have to show material damage due to the data lost in a breach -- and this has proven difficult to show or prove." Still, Yahoo's costs may be higher simply because of the magnitude of the breach, and may even lead to a loss of users or advertisers. Larry Ponemon, founder of the Ponemon Institute, a think-tank focused on data security, believes Yahoo's costs -- plus opportunities lost -- could be $2 to $3 per customer record, and shave $1 billion from the price Verizon pays. "The timing couldn't be worse for Yahoo," he said. Price Cut Verizon may be able to negotiate Yahoo's purchase price down by 5 percent to 10 percent, said Mahoney of Falcon Point, who doesn't hold shares of either company. Yahoo's shares are down 5.5 percent since the close Dec. 14, when the company announced the second breach. Verizon has been buying internet and media companies to drive growth beyond its maturing wireless business by selling advertising. The company purchased Yahoo in part for traffic to its websites like Yahoo Finance, and that traffic is unlikely to decline because of the breach. According to Alexa Internet, which tracks web viewing, Yahoo fell to the No. 6 most-popular property globally in early December, before the magnitude of the latest breach was revealed, and has held its rank since then. If Yahoo's numbers remain steady, Verizon should still buy the company, according Roger Entner, an analyst at Recon Analytics LLC. "Yahoo has a brand that's pretty good in the marketplace," added Mahoney, of Falcon Point Capital. Verizon "will certainly" use the breach as leverage to try to reduce the deal's price, "but I doubt that it changes the strategic rationale for why they want to buy Yahoo," he said. Yahoo said it's confident in the company's value and continues to work toward integration with Verizon. Jim Gerace, a spokesman for Verizon, said the company will continue to evaluate the situation before making any final decisions. ZIMMER GMBH: Sept. 5 Durom Settlement Claims Filing Deadline Set ---------------------------------------------------------------- Were you, or a family member, implanted with a Zimmer Durom(R) Hip Implant in Canada? This notice may affect your rights. Please read carefully. Class action lawsuits were initiated in Canada regarding allegations that the Zimmer Durom hip implant, or "Durom Cup," was defective, and that it failed prematurely. Specifically, a class action was certified by the British Columbia court on September 2, 2011, in Jones v. Zimmer GMBH et al, and by the Ontario court on September 24, 2014, in McSherry v. Zimmer GMBH et al, and was authorized by the Quebec court on May 6, 2016 in Major v. Zimmer Inc. et al. These actions have now been settled, and the courts have approved the settlement. For a copy of the settlement agreement, please contact Class Counsel or the Claims Administrator at the address below. Who is Eligible to Participate in the Settlement? The settlement applies to all persons who were implanted with the Durom Cup in Canada who have not opted out of the Jones, McSherry, or Major actions and/or who have affirmatively opted into the Jones action, and their estates and family members. The Terms of Settlement The settlement provides compensation to class members who timely submit all forms and documentation required under the Settlement Agreement, less deductions for legal fees. The settlement also provides for payment to public health insurers. Please refer to the settlement agreement, which is available on the website of Class Counsel, for specific terms and conditions. To Make a Claim To be entitled to a payment pursuant to this Settlement Agreement, class members must file a claim with the Claims Administrator on or before September 5, 2017. For More Information or to Obtain a Claim Form Please contact Class Counsel or the Claims Administrator at the address below: Class Counsel in Jones and McSherry Actions: Klein Lawyers LLP Suite 400, 1385 West 8th Avenue Vancouver, BC V6H 3V9 Telephone: 604-874-7171 Facsimile: 604-874-7180 www.callkleinlawyers.com Class Counsel in Major Action: Trudel Johnston & Lesperance Suite 90, 750 Cote de la Place d'Armes Montreal, QC H2Y 2X8 Telephone: 514-871-8385 Fax: 514-871-8800 www.tjl.quebec Claims Administrator: Crawford Class Action Services 610 - 180 King Street S. Waterloo, ON N2J 1P8 Toll free: 1-877-739-8939 TTY: 1-877-627-7027 Fax: 1-888-842-1332 Email: zimmerhipclassaction@crawco.ca * Big Data May Spark Class Actions, Possible Compliance Issues -------------------------------------------------------------- Santosh Varughese, President of Cognetyx (Network World), in an article for Computerworld, reports that cybersecurity experts are excited about big data because it is the "crime scene investigator" of data science. If your organization is hacked and customer information compromised, your use of big data to collect massive amounts of information on your systems, users and customers makes it possible for data analysts to provide insight into what went wrong. But while big data can help solve the crime after it occurred, it doesn't help prevent it in the first place. You're still left cleaning up the mess left behind by the breach: angry customers, possible compliance issues with data privacy standards like HIPAA and PCI DSS, maybe even government fines and class-action lawsuits. This is where big data fails to meet its big promise: when it is employed aftera data breach happens. As the old saying goes, "Hindsight is the best sight." Big data, when utilized after a cyberattack, certainly gives you that. However, what it doesn't give you is the ability to realize that a breach is happening, or is about to happen, and stop it before massive damage is done. Because of this, big data, when used in a vacuum, will not secure your systems, your business, or any of your sensitive information. Big data cheerleaders will say you can use this hindsight to fix the problems that let the hacker into your system in the first place. After all, since you know what went wrong, you can patch your system so that it doesn't happen again, right? While that may be true -- you may be able to prevent that specific problem from happening again -- cybersecurity simply doesn't work that way. The threat landscape is dynamic, with new technologies, and thus, new vulnerabilities, emerging every day. Additionally, hackers are like any other criminal: They are savvy, adaptable, and know how to play on human nature. They're always going to find your weaknesses -- and your biggest weakness is your own people, your trusted employees. Most hackers don't break into systems through the back door. They get their hands on legitimate login credentials and, essentially, walk right in the front door. So, in most cases, big data analytics will reveal hackers accessed your system by logging into Server X using an employee password they stole through a social engineering scheme, such as phishing email. (Or, worse yet, the credentials may have been handed to them by a malicious insider.) With this new insight, you may decide to provide training for your employees on cyber security best practices, such as how to spot a phishing email and the dangers of clicking on suspicious links. Employee cybersecurity training is essential, and it will help keep your systems safer, but it's not a panacea. Humans are fallible. They make mistakes when they are tired, distracted, or in a hurry to get something done. Additionally, no amount of training will stop a malicious insider -- a disgruntled employee, ex-employee, or contractor who is determined to strike back at the company or make a quick buck selling confidential data on the Dark Net. Thankfully, there is a solution: machine learning, a cutting-edge technology, built upon mathematical algorithms that learn and update in real-time, that enable computers to learn without being explicitly programmed. This is the same technology that powers self-driving cars, and it is the single most powerful weapon we have against hackers. Machine learning provides the protection that big data analytics lack. Instead of figuring out why a breach happened after the fact, machine learning can identify a data breach as it's happening, or about to happen, and trigger a system alert to shut the breach down before any real damage is done. Machine learning technology not only makes sense of big data; it can analyze it and extract insight from it far more quickly than a human or even a team of humans ever could. Because of its predictive capabilities, it can be proactive instead of reactive. In real time, machine learning technology can flag a hacker who is using stolen credentials and stop them from getting into your system. This technology is not baked into the network -- but rather baked into the application/data. This cognitive defense shield is surveilling every login to an application and watches every move the human using the login ID makes within the application to confirm that the 'behavior' of this login session for this userid is within the normal parameters or baseline behavior for that userid. For example, the algorithms may notice an employee's credentials are being used from an offsite location, that the employee is attempting to access a part of the system they do not need to perform their job, or that a login attempt is occurring in the middle of the night. Because the machine learning technology has analyzed the employee's normal computer usage and established a baseline pattern, it can recognize that a particular login attempt is not normal and potentially dangerous, and it will lock that user out until your IT staff can investigate the situation. Machine learning gives you immediate, critical, actionable insight into your user data; it provides you with the real-time protection that big data analytics cannot. Machine learning is the best way to secure your systems because it is constantly learning what is normal and what is not, and it can act on this information right away, before a hacker gets into your system and steals hundreds or thousands of records. The technology is here now, already deployed, already catching criminals stealing sensitive data and delivering early alerts on data breaches and privacy violations. This cyber security technology is the future of high-performance solutions that protect the data. So, if big data is a crime scene investigator, you could say that machine learning is a cop on the beat: protecting your system against cybercriminals, enforcing the law, and stopping crimes in progress. Mr. Varughese is President of Cognetyx -- http://www.cognetyx.com -- is the world's first "Ambient Cognitive Cyber Surveillance" to help safeguard data. Cognetyx uses advanced machine-learning artificial intelligence to detect rogue and malicious users. * CFPB to Finalize Rules on Arbitration Clauses in Class Action --------------------------------------------------------------- Jessica Karmasek, writing for Legal Newsline, reports that the attorney who pioneered the use of pre-dispute arbitration provisions in consumer contracts believes it is "very likely" that the Consumer Financial Protection Bureau will finalize its proposed set of rules prohibiting arbitration clauses that prevent class action lawsuits before President-Elect Donald Trump's inauguration this month. Alan Kaplinsky -- kaplinsky@ballardspahr.com -- leader of the Consumer Financial Services Group for the firm Ballard Spahr LLP, recently told Legal Newsline that there is "perhaps an 80 percent" chance the bureau will issue a final rule before Jan. 20. While the CFPB has not indicated publicly that the presidential change-over is its deadline, Mr. Kaplinsky said the rumors are "rampant." "The proposed arbitration rule is very simple (unlike the proposed small-dollar loan rule)," he pointed out. "The Obama Administration is encouraging all executive agencies to complete as many rules as possible before Jan. 20." The 115th Congress is scheduled to convene Jan. 3 at noon EST. A joint session to count the electoral votes of the 2016 presidential election will be held Jan. 6. Trump and Vice President-Elect Mike Pence are to be inaugurated Jan. 20. Republicans maintain control of both the U.S. House of Representatives and U.S. Senate as a result of the November elections. That could come into play if the CFPB finalizes the rule ahead of Trump's inauguration, Mr. Kaplinsky noted. "It will enable them to use the Congressional Review Act to nullify the rule," he said of a Republican-controlled Congress. "It will require a simple majority vote in the House and Senate and President Trump's signature." The law empowers Congress to review, by means of an expedited legislative process, new federal regulations issued by government agencies and, by passage of a joint resolution, to overrule a regulation. Mr. Kaplinsky said if the CFPB fails to finalize the proposed set of rules before Jan. 20, it is unlikely to move forward. "Nothing [will happen], unless and until Trump dismisses Cordray and a successor is appointed by Trump and confirmed by a simple majority of the Senate," he said. "Presumably, the new director will not finalize the rule." Mr. Kaplinsky has been a vocal opponent of the CFPB's proposed set of rules even before they were officially released by the bureau. Last November, Mr. Kaplinsky took issue with a New York Times article that alleged binding arbitration is being used by Wall Street and corporate America to hurt American consumers. Mr. Kaplinsky, who was interviewed numerous times over the span of months by the Times, argued the newspaper omitted key information he provided its reporters regarding class action litigation and the CFPB's study. He argues class actions only benefit class action lawyers. Under the CFPB's proposal, companies would be prohibited from putting mandatory arbitration clauses in new contracts. Many contracts for consumer financial products and services contain such clauses, which are a way to resolve disputes outside the court system. Companies would still be able to include arbitration clauses in their contracts. However, for contracts subject to the proposal, the clauses would have to say explicitly that they cannot be used to stop consumers from being part of a class action in court. The proposal would provide the specific language that companies must use. The proposal also would require companies with arbitration clauses to submit to the CFPB claims, awards and certain related materials that are filed in arbitration cases. This would allow the bureau to monitor consumer finance arbitrations to ensure that the arbitration process is fair for consumers. The bureau also is considering publishing information it would collect in some form, so the public can monitor the arbitration process as well. The comment period on the CFPB's proposal closed on Aug. 22. More than 12,000 comments were received by the bureau. The CFPB, an independent agency of the federal government responsible for consumer protection in the financial sector, published its proposal in the Federal Register on May 24, with a 90-day comment period. Special interest groups, consumer lawyers and even citizens chimed in on the proposed set of rules. In September, leaders of a Congressional subcommittee urged the CFPB to include a safe harbor provision in its final set of rules. They asked the bureau to consider providing a safe harbor that allows financial companies to retain class action waivers in their arbitration clauses. A safe harbor refers to a legal provision to reduce or eliminate liability in certain situations as long as certain conditions are met. Class action waivers are sections of a contract that prevent someone from filing a class action lawsuit and can be found in many different types of contracts, including employment contracts. * Courts Set to Tackle Sports Law-Related Cases in 2017 ------------------------------------------------------- Marc Edelman, writing for Forbes, reports that 2016 was another interesting year in sports law, highlighted by the Supreme Court's rejection of certiorari in O'Bannon v. NCAA -- marking an end to six years of litigation over whether the NCAA can prevent colleges from sharing licensing revenues with their athletes. 2017 figures to be just as exciting year, with a series of new lawsuits related to college athletes' rights, sports gaming, and labor law. Here are the top five stories that should appear on the 'sports law docket' in 2017: 1. College Athletes Continue their Fight for Free Markets in Jenkins v. NCAA. Lurking behind O'Bannon v. NCAA on the college sports antitrust docket is Jenkins v. NCAA -- a class action lawsuit filed on behalf of FBS football and Division I men's basketball players by renowned sports-antitrust attorney Jeffrey Kessler. The Jenkins lawsuit seeks to overturn NCAA rules that place "a ceiling on the compensation that may be paid to [college] athletes for their services" and thus may have far broader implications for college sports than the O'Bannon ruling. If the plaintiffs in Jenkins fully prevail, colleges may find themselves bidding for college athletes' services in a similar fashion to how colleges already bid for research instructor and Ph.D students' services. Distinguished sports attorney Jeffrey Kessler is lead counsel in the ongoing antitrust lawsuit Jenkins v. NCAA (AP Foto/ Louis Lanzano) 2. Plaintiffs Lawyers Continue to Argue for the "Employee Status" of College Athletes. Since Region 13 of the National Labor Relations Board found Northwestern University's grant-in-aid college football players to constitute "employees" under labor law, numerous other lawsuits have attempted to gain for college athletes the status of employee under employment law. Although the U.S. Court of Appeals for the Seventh Circuit recently denied claims in Berger v. NCAA that the University of Pennsylvania women's track and field team were employees entitled to the benefit of minimum wage under the Fair Labor Standards Act, plaintiffs' lawyers have since requested an en banc review. Meanwhile, in Dawson v. NCAA, a different set of class action plaintiffs have asked the U.S. District Court for the Northern District of California to hold that Pac-12 conference football and men's basketball players constitute employees under employment law. Given the limited nature of the plaintiffs' class, success by the Dawson plaintiffs seems somewhat more likely. 3. Potential Antitrust Challenge to the FanDuel and DraftKings Merger. Back in November, daily fantasy sports operators FanDuel and DraftKings announced a proposed merger that, if approved, would yield a single company with upwards of 95 percent market share in the daily fantasy sports category, as well as align the MLB, the NBA and NHL as partial owners of a single, dominant daily fantasy sports company. This proposed merger is very likely to face antitrust scrutiny from either the Federal Trade Commission and Department of Justice. If the companies still plan to move forward with their merger after such scrutiny, it is reasonably likely that one of the agencies would file an antitrust lawsuit to enjoin the merger. (Disclosure: The author consults for a fantasy sports provider that is in current litigation against DraftKings). 4. Renewed State Efforts to Legalize Sports Gambling. In 2015, the U.S. Court of Appeals for the Third Circuit rejected yet another attempt by the State of New Jersey to overturn the Professional and Amateur Sports Protection Act ("PASPA") and bring sports gambling to New Jersey casinos. With some of the U.S. professional sports leagues now softening their stance against sports gambling, some legal commentators believe another state will attempt to bring a Constitutional challenge to PASPA in 2016. While such a lawsuit represents a somewhat dubious use of state money, a more practical alternative may be for state congresspersons to unite behind the repeal of PASPA. 5. Deteriorating Labor Relationship in the NFL. Finally, in late 2016, both Major League Baseball and the National Basketball Association extended their collective bargaining agreements -- a clear sign of labor stability in thoee sports. However, in the National Football League, labor relations could not be worse. Beyond issues of allocating league revenues, bona fide concerns about the league commissioner's power emanating from disputes over recent-year suspensions of Ray Rice, Adrian Peterson and Tom Brady have further hurt the union's working relationship with the league. The time may have come for NFL Commissioner Roger Goodell to humble himself on certain suspension powers and seek to repair the league's relationship with the union. If that fails to happen, continued labor strife and litigation between the NFL and its players seems inevitable. * Food Beverage Class Action Surge Blamed on Corporate Wrongdoing ----------------------------------------------------------------- Jessica Karmasek, writing for Legal Newsline, reports that plaintiffs attorneys and consumer advocacy groups agree there has been a significant uptick in the amount of food and beverage class action lawsuits filed in recent years, but they contend much of the blame lies with manufacturers themselves and poor government regulation. Richard Barrett -- rrb@rrblawfirm.net -- a Mississippi plaintiffs attorney who has brought dozens of cases against food and beverage companies, said firms such as his own, Barrett Law Group PA in Lexington, Miss., simply are trying to change the way food companies do business. "Food companies should be forced to follow the laws already in place," Mr. Barrett told Legal Newsline. "They don't." Mr. Barrett's firm has combined with several other small to mid- sized firms across the country to take on what he describes as "mega-corporations" over their allegedly misleading and illegal labeling of food products. "Our group has filed approximately 50 cases for a variety of violations," he explained. In 2012, the group filed a lawsuit against Welch Foods Inc. over its grape juices, alleging the company violated federal and state law when it, among other things, labeled its juices with a "big, bold, eye-catching" no-sugar-added statement without the required disclosure that the juice had more sugar in it per ounce than a Pepsi-brand soda. "Our cases focus on ingredient labeling," Mr. Barrett explained. Mr. Barrett contends class action litigation, against large companies such as Welch, serves an important purpose. "When large corporations have a strategy to deprive the American consumer of just a little bit each transaction so that the consumer barely notices or feels like it's not worth the effort to sue, class actions allow consumers to address injury that may be small but is huge to the corporation," he said. "These particular cases are interesting to me because in researching these companies and claims, I have become stunned by the amount of labeling violations designed only to influence the volume of sales. It's no wonder that we, as a society, are sick and overweight." Mr. Barrett takes issue with claims that the plaintiffs bar is solely responsible for the increase in food-related class actions, all in the name of profits. "I'm glad they [company attorneys] think that," he said. "If the plaintiffs bar is bothering them by seeking them to comply with federal and state labeling laws, there is an easy fix. They should immediately make all their labels compliant with the law." He continued, "The reason that there is a 'surge' is that plaintiff attorneys are helping their clients by taking to task these food companies that intentionally mislead the purchasers of the companies' products. There would be no surge without misleading information on food labels that the companies put on intentionally." Maia Kats, director of litigation for the Center for Science in the Public Interest, contends some of the blame may rest with plaintiffs attorneys looking for their next paycheck, but she argues the federal government hasn't done its part. Recommended by Forbe "In terms of casting aspersions on one side versus another -- it's more complex than that," she told Legal Newsline. "Yes, some other areas in class action law have tightened in terms of feasibility of prosecution. But it's also because this area, in particular, is one in which the government enforcement agencies assigned to it -- the U.S. Federal Trade Commission, the Department of Justice and Food and Drug Administration -- really are not active in ensuring the statutes and regulations are adhered to by food companies. "I think, in this instance, it's more so a void between the law and the enforcement of that law." CSPI, based in Washington, D.C., is one of the nation's top consumer advocates. According to its website, the group fights for government policies and corporate practices that "promote healthy diets, prevent deceptive marketing practices, and ensure that science is used to promote the public good." Ms. Kats also agrees that consumers simply are more health-savvy these days. "We have customers who are wanting to purchase and consume foods that are better for them," she said. But Ms. Kats doesn't deny that a lot of the class actions being filed on behalf of consumers are frivolous. "It's sad because, from our perspective, those lawsuits really undermine our ability to make meaningful cases," she said. "There are a lot of bad class actions out there right now, and people are doing it for the wrong reasons. "A lot of them have absolutely no nutritional consequence. A lot of them make you go, 'huh?' I mean, too much ice in your drink? Who really believes a Crunchberry is a real berry?" Again, it goes back to better regulation, Ms. Kats says. "Compliance isn't adequately monitored," she said. "But stop and reflect on the number of food products out there on the market. That's a daunting task to fund and for the FDA to accomplish." Improved labeling guidelines would be a start, she argues -- in particular, predominance labeling and naming. "One activity that would help considerably, we think, to ensure that the naming of the product is accurate is to go by the predominance of the ingredients," Ms. Kats explained. "If you're going to show on your products images of 'green leafy goodness,' for example, then those images that are on the label should be reflective of the predominance of the ingredients in the product." Listing percentages also would prove helpful to consumers, she said. Mr. Barrett doubts more guidelines would help. "I believe that the FDA and the like are doing what they can with the resources they have," he said. "If I could wish for anything in the rulemaking process, I would remove the power of 'big food' to lobby its influence into the decisions of the FDA and other agencies regarding regulation formation and interpretation, particularly when it comes to labeling. "I can't say more guidelines would help since the food giants are ignoring them anyway." * Large Law Firms at Risk of Data Security Breach, Report Says -------------------------------------------------------------- Karen E. Rubin, Esq. -- Karen.Rubin@ThompsonHine.com -- and Thomas F. Zych, Esq. -- Tom.Zych@ThompsonHine.com -- of Thompson Hine LLP, in an article for Lexology, report that law firm cybersecurity is in the news again with two developments. First, the latest ABA TechReport says that large law firms were more likely to be victims of a data security breach last year than mid- size or small firms, with one in seven respondents having been hit overall. That's a big deal. Next, a federal class action complaint in what is thought to be the first suit attempting to base liability solely on a U.S. law firm's allegedly inadequate cybersecurity was unsealed on December 9. But that suit possibly turns out not to be such a big deal. BigLaw take warning As reported in Law360 (subs. req.), the 2016 ABA Legal Technology Survey collected responses from 800 ABA members, and it showed that 26% of firms with more than 500 lawyers had experienced a security breach. That contrasts with about 15% of firms with 50- 99 lawyers, and 20% of firms with 100-499 lawyers. Only 8% of solos said they'd had a breach. A possible explanation of the data may be what Willie Sutton said about why he robbed banks: that's where the money is. Large and mid-size firms can be treasure troves for hackers looking to gain access to client info on deals and other financial activity, and law firms can provide "back door" access to the data of financial institution clients. With more lawyers and more staff, larger firms also have more chances to suffer from human error. The good news there, according to the survey, is that only 2% of respondents reported that hacking resulted in unauthorized access to client data. Failure to secure data? On the litigation front, a class action complaint was unsealed against Chicago-based firm Johnson & Bell Ltd., brought by former clients who asserted that the firm's "computer systems suffer from critical vulnerabilities in its internet-accessible web services." Plaintiffs also alleged that client confidential information "has been exposed," and identified the firm's time-charge system, e- mail server and virtual private network as vulnerable to cyber- attack. However, the plaintiffs never alleged that any actual breach has occurred, and the firm moved to dismiss the claims. Potential vulnerability is not actionable, Johnson & Bell said in its motion -- otherwise "every lawyer who carries a briefcase, takes notes in court or in a deposition . . . could be subject to being named in a class action lawsuit, because in each instance a client's confidential information was 'exposed' or 'vulnerable.'" Counsel for plaintiffs in the suit is Jay Edelson, who has litigated successfully on behalf of consumers against businesses where actual breaches have occurred. Although expansion of liability against law firms where no actual cyber-breach is alleged would be a scary development, the possibility has fizzled for the moment. As detailed in the district court's opinion, the plaintiffs acknowledged that the time-tracking system vulnerability was remedied shortly after the complaint was filed, and plaintiffs voluntarily dismissed their class action complaint in order to pursue arbitration under a provision of their retainer agreement with the firm. Lawyer training = ounce of prevention Law firm data vulnerability consists of at least two factors -- technology and humans. As pointed out before, a good way to address the human factor is with plenty of lawyer training, because we seem to be particularly prone to falling for scams and clicking before we think. As for the technological factor, staying ahead of the bad guys is always going to be a game of Whack-a-Mole, which law firms will be striving to win. * Medical Societies Fail to Protect Public From Sexual Predators ---------------------------------------------------------------- Alan Judd, writing for The Atlanta Journal-Constitution, reports that caught in the act, Dr. Earl Bradley needed to think fast. "What the hell are you doing, you (expletive)?" his patient's mother screamed when she found Dr. Bradley with his hand in her daughter's diaper. Trailing her to the parking lot, Dr. Bradley insisted she hadn't seen what she thought she saw. Now the police were coming. Without a plausible story, Dr. Bradley could be in serious trouble. Dr. Bradley said the mother -- poor, young, unmarried -- must have been trying to extort money from him. It worked. A detective wrote that, compared to with doctor, the mother was "not credible." A medical board investigator found that Dr. Bradley "specialized in welfare . . . patients," so a shakedown was "a distinct possibility." The case was closed. And the doctor who would become one of the nation's most prolific sexual predators moved on. For 15 more years, Earl Bradley raped, molested and sodomized pediatric patients. He recorded 13 hours of the assaults on video, some so violent that he had to resuscitate the victims. He eluded investigators and gossips, even as, behind his back, colleagues called him the "pedophile pediatrician." Before he finally went to jail in 2009, he victimized 1,200 children, maybe more. Their average age was 3. The youngest was 3 months old. And yet, despite its horrific details, Dr. Bradley's case is hardly the anomaly it seems. Rather, it epitomizes the medical culture that enables and excuses sexual misconduct by physicians across the nation, an investigation by The Atlanta Journal- Constitution found. The Atlanta Journal Constitution examined more than 100,000 disciplinary records and other documents from state medical boards. Again and again, records show that a profession that prides itself on self-policing empowers even its most dangerous practitioners. Regulators, who often are doctors themselves, try to keep accused physicians in practice. The prescription for rehabilitation may amount to little more than a weekend-long seminar on appropriate "boundaries." Secrecy pervades the disciplinary process, shielding doctors from embarrassment while keeping patients uninformed. The nature of medical practice also provides cover for doctors who abuse. Sexual misconduct often occurs in a unique sanctum: the examination room. There, intimate encounters not only are unavoidable, they also are sometimes necessary. Patients may have trouble discerning between appropriate examination and gratuitous touching, and many accept, without question, the judgment and behavior of a well-trained, highly educated professional. Reported cases of doctors sexually assaulting children are unusual, but vulnerable victims are not. Most accusers are adult women, especially those who are poor or dependent on narcotic painkillers or lacking the credibility or social standing to pursue legal action. Still, perhaps more than any other, Dr. Bradley's case shows how American medicine so often puts doctors' interests ahead of patient protection. If such an extreme predator could get away with assaulting patients for years without consequence, how likely are more typical offenders to draw attention of regulators? Through interviews, police reports, court files and other public records, the AJC documented eight instances in which Dr. Bradley was the subject of accusations between 1994 and 2008. Each time, in ways that echo through hundreds of other cases the newspaper examined, Dr. Bradley avoided punishment. Investigators sometimes doubted his accusers. Other doctors kept his transgressions confidential. The head of the state medical society dismissed Dr. Bradley's troubles as a "family matter." Prosecutors thought his victims were too young to appear in court, and even if they had testified, it would have been their word against Bradley's -- against the doctor's. Earl Bradley arrived in Lewes, a small seaside town in southern Delaware, in 1994. The mother's accusation that he touched a 21-month-old inside her diaper still was unresolved in Philadelphia. Nevertheless, Delaware regulators granted Dr. Bradley a medical license, and the state's third-largest hospital, Beebe Medical Center in Lewes, gave him a job. Almost every year, complaints emerged about Bradley's conduct. In 2001, Dr. Bradley opened a practice in an old house on the coastal highway in Lewes. He called it BayBees Pediatrics. Often, he carried children to his basement or to another building on the property while parents checked out at the front desk. Dr. Bradley hired his older sister, Lynda Barnes, as office manager. But by 2004, she had grown so concerned about his odd behavior that she reported him to the state medical society. She sent the society a letter saying her brother had a mental illness, was spending far beyond his means, and had physically abused his son, then a teenager. The medical society gave the letter to its president: Dr. James Marvel, who had helped bring Bradley to Delaware a decade earlier. Marvel did not respond to requests for an interview. In 2005, according to police reports, Marvel told a detective he did nothing to investigate Barnes' letter. In his judgment, Marvel reportedly said, Barnes' complaint was merely "a family matter." At first, Dr. Bradley impressed everyone. When an expectant mother met with him in 2002, he readily calmed her anxieties about giving birth for the first time. He seemed to have a medical study at his fingertips to back up every point. "It blew my mind," the mother said in an interview. "So we picked him." But at nearly every visit, the mother said, Bradley examined her daughter's vagina. She thought it was odd, but she didn't challenge him. On March 29, 2005, the mother discovered that he doctor had put his tongue in her daughter's mouth, had violated her in a profound way. The mother began trembling -- an involuntary, uncontrollable reaction that, more than 11 years later, recurs when she talks about Dr. Bradley. She drove home, told her husband and called the police. The case went to Kenneth Brown, then a detective for the Milford police, now the chief. Mr. Brown worked on the case for a month. A former BayBees employee described Dr. Bradley as "weird and disgusting" but didn't point to anything illegal. Parents talked about feeling uneasy over how Dr. Bradley touched their daughters. Other doctors repeated stories about his lengthy, and apparently unnecessary, vaginal exams. Mr. Brown took his findings to the Delaware attorney general's office, which supervises criminal cases across the state. Lawyers there declined to prosecute Dr. Bradley for molesting the 3-year- old. With so young a victim and no physical evidence, they concluded, convicting Dr. Bradley would be all but impossible. The girl's mother considered reporting Dr. Bradley to the Delaware Board of Medical Practice, which licenses and disciplines the state's doctors. But, like many other state medical regulators, the agency wouldn't accept anonymous complaints. Also like others, it didn't investigate before giving doctors the names of their accusers. Already, the mother said, other doctors had been dismissive when she told her story. Even friends questioned whether Dr. Bradley really did anything wrong. So, fearing Dr. Bradley would somehow retaliate against her family, the mother dropped the matter. Twice in 2008, just as in 1994 and 1996, 1998 and 2000, 2004 and 2005, new allegations surfaced against Dr. Bradley. But, as before, nothing came of them. Then a 2-year-old told her mother that Dr. Bradley "hurt" her when he took her to his office basement. A medical examination confirmed that she had been molested. Early on Dec. 16, 2009, detectives from the Delaware State Police arrived at Dr. Bradley's house. They led him away in handcuffs. At BayBees Pediatrics, officers fanned out through the complex: the old house that served as the main office and three smaller outbuildings in the rear. They found video cameras all over: in an examination room, in Dr. Bradley's private office, in the basement. They also found dozens of digital storage devices. Among them were five thumb drives hidden atop a door frame. The next day, a detective from the high-tech crimes unit began examining the digital evidence. The first file on the first thumb drive was a video recorded in September, three months earlier. For the first minute or so, it showed nothing alarming. But then, Detective James Spillan saw Dr. Bradley removing the diaper of a very young child. The girl cried for her mother. Detective Spillan eventually catalogued 13 hours, 35 minutes and six seconds of video in which Dr. Bradley documented his abuse. Videos taken from the house showed Dr. Bradley violently assaulting 86 children, all girls except for one. Detective Spillan later testified in court about watching the rapes of children in diapers, many of them screaming and trying to get away. Dr. Bradley raped one girl, on video, four times before she turned 2. The discovery of the video sent the case into a different realm. Until then, other doctors, hospital executives and many parents had viewed Dr. Bradley more as an eccentric than a predator, although one who may have been "careless" with little girls, as a colleague put it. In reality, he had been a serial child molester all along. Dr. Bradley offered no defense when he went on trial in 2011. A judge sent him to prison for life, with no chance for parole. Dr. Bradley is now 63 years old. In November 2012, a Delaware judge approved a $123 million settlement of a class-action lawsuit against Beebe hospital, the state medical society and several doctors, some of whom allegedly referred patients to Dr. Bradley even after hearing jokes and rumors that cast him as a pedophile. * New NLRB Board May Reexamine Decisions on Class Action Waivers ---------------------------------------------------------------- Steven M. Swirsky, Esq. -- sswirsky@ebglaw.com -- and Laura C. Monaco, Esq. -- lmonaco@ebglaw.com -- of Epstein Becker & Green, P.C., in an article for The National Law Review, report that the National Labor Relations Board ("Board") has been quite active in the waning days of the Obama administration. The Board issued a number of decisions addressing key issues in the second half of President Obama's final year in office. While the lasting impact of some or all of these decisions in the wake of Donald Trump's election is presently uncertain, it is almost certain that the Board's Democratic majority under the Obama administration will not survive, and that President-elect Trump's appointments will give rise to a Republican majority in the near future. Indeed, two of the five seats on the Board are presently open, and with the terms of both Member Philip Miscimarra, who is a Republican, and General Counsel Richard Griffin set to expire in 2017, President-elect Trump will soon have the opportunity to use his appointment powers to change drastically both the composition of the Board and its litigation and enforcement priorities. It can be expected that a new Board, with a Republican majority, will likely reexamine decisions of the Obama Board on a wide range of issues, including the Board's decisions that found class action waivers and requirements that employees arbitrate (rather than seek relief in the courts for wage and hour and similar claims) to be unenforceable, and that redefined the standards for finding joint-employer relationships, as well as other decisions seen as "pro-union" or anti-employer. In 2016, the Board issued decisions that affected employers in several key areas. Joint Employers In July 2016, the Board issued Miller & Anderson, 362 NLRB No. 39 (July 11, 2016), a decision that expanded the already-relaxed joint-employer standard adopted by the Board in its August 2015 decision in Browning Ferris Industries. The Board made clear that it will now hold elections and require bargaining in "petitioned- for units combining solely and jointly employed workers of a single user employer," in those cases in which a union asks for such a mixed employer unit, so long as the Board finds the jointly and solely employed workers "share a community of interest" under the Board's "traditional community of interest factors for determining unit appropriateness." Moreover, the Board overturned its 2004 decision in Oakwood Care Center, 343 NLRB 659 and held that when a union petitions for a representation election in a unit that includes both "solely employed" and jointly employed employees of a single "user employer," the Board will no longer require the consent of the employer or employers before directing such an election and certifying a union to represent such a unit. The Board's decision in Miller & Anderson can also be viewed as the next step in the progression that began with the Board's change in its representation election rules, which permit quicker elections and representation proceedings and which deny employers their rights to both litigate critical unit and supervisory status issues prior to an election and to appeal a Regional Director's direction of election before that election is conducted. The Board's Assistance to Union Organizing The Board's decision in Trustees of Columbia University, 364 NLRB No. 90 (Aug. 23, 2016), was part of a broader trend by the Board's majority efforts to jump-start collective bargaining and union organizing and bring unions into new settings where they have not previously been found. In this case, the Board ruled that graduate students working as teaching assistants and research assistants were "employees" within the meaning of the National Labor Relations Act ("Act") and, thus, have the right to join unions and engage in collective bargaining with the universities and colleges at which they study. This decision is yet another example of the Obama Board's broad approach in examining the nature of the employer-employee relationship, not only in the context of joint employment and co-employment but also in new areas of the gig economy, where unions and employees are arguing that workers traditionally recognized to be independent contractors have been "misclassified" and that such misclassification is in and of itself an unfair labor practice. The Board's Aggressive Review of Employment Policies and Handbooks Is National Labor Relations Board at Turning Point? Throughout 2016, the Board has continued its aggressive approach to reviewing, invalidating, and finding unlawful employment policies and other documents once viewed as standard by employers -- class action waivers, separation agreements, workplace conduct, email use policies, and social media policies. In Chipotle Services LLC, 364 NLRB No. 72 (Aug. 18, 2016), the Board took aim at a social media policy maintained by Chipotle Services, LLC. In that case, the company asked one of its non-unionized employees to delete several tweets posted on his personal Twitter account, because they violated Chipotle's Social Media Code of Conduct. The Board concluded that the company's social media policy, which prohibited employees from spreading "incomplete, confidential, or inaccurate information" through their online activity, and also forbid employees from making "disparaging, false, misleading, harassing or discriminatory statements" regarding the company and its employees, suppliers, customers, competition, or investors," violated the Act because it could reasonably be construed as restricting employees' exercise of their Section 7 rights to engage in concerted activity. What Employers Should Do Now The Board has continued to scrutinize employers' policies and practices in 2016 and has not hesitated to reverse prior precedent in order to accomplish its strategic initiatives. With the incoming administration, employers will have to take a wait-and- see approach to determine whether some (or all) of the Board's inroads will be rolled back in 2017. * Outcome of Mandatory Arbitration Agreements Issue Uncertain ------------------------------------------------------------- Rebekah Mintzer, writing for Inside Counsel, reports that companies and their in-house counsel have tried to stem the tide of litigation filed by employees on issues such as wage and hour and workplace discrimination by having them sign mandatory arbitration agreements that contain class action waivers. But in some of the most consequential court cases for in-house lawyers of 2016, judges ruled that these contracts, which once seemed like a safe bet to manage employment cases individually and without litigation, may no longer be viable. Companies have supported these agreements on the theory that individual arbitration saves both employee and employer time and money in resolving conflicts and keeping resolution private. They argue that individual arbitration is protected by the Federal Arbitration Act. But some employees, as well as the plaintiffs bar and the National Labor Relations Board, see these agreements as unfair and illegal under Section 7 of the National Labor Relations Act, which protects employees' right to protected concerted activity. The board has brought its own cases to strike down these waivers, and has supported plaintiffs attempting to do the same. Companies from K-Mart Corp. to Applebee's International Inc. have faced legal scrutiny over the issue. So far, the news from the circuits has been mixed. The U.S. Court of Appeals for the Seventh Circuit and for the Ninth Circuit have sided with employees. The Fifth, Eighth and Second have supported the employer view. In three cases that were decided in 2016, Lewis v. Epic Systems, Morris v. Ernst & Youngand NLRB v. Murphy Oil USA, parties have filed cert petitions to the U.S. Supreme Court. The one filed by Epic called the circuit splits "intractable" and said that it is making dispute resolution "unpredictable to the detriment of employers and employees alike." The issue seems ripe for consideration, but at press time it was not known whether the high court would take it up, and how the new president would shift the court's makeup. Until the Supreme Court opts to weigh in, what seems certain is that the issue will continue to confound employers, from the conventional to the high-tech, across the country. Uber Technologies Inc., for instance, is fighting to enforce arbitration agreements that it had its drivers sign and is now part of the broader litigation over the company's alleged misclassification of its drivers as independent contractors. * PRA May Pave Way for Class Action Litigation in Canada -------------------------------------------------------- Avi Sharabi, Esq. -- asharabi@blaney.com -- of Blaney McMurtry LLP, in an article for Lexology, reports that Canada's Anti-Spam Legislation ("CASL"), which came into force on July 1, 2014, is considered by some experts to be one of the most onerous anti- spam/anti-malware laws in the world. On July 1, 2017, it will become even more onerous when the private right of action ("PRA") comes into force. The PRA is expected to increase the number of claims (including class proceedings) made under CASL. Insurers will need to factor the PRA into the underwriting of many policies issued in the future. Below is an overview of CASL, a summary of the PRA, and comments about some of the ways in which the PRA could affect the Canadian insurance market. The Purpose of CASL One of the primary goals of CASL is to protect Canadians from receiving unsolicited commercial electronic messages ("CEMs") and unsolicited computer programs or software on their electronic devices. CEMs are private messages including emails, SMS text messages, instant messages, and private messages on social networking accounts, which encourage participation in a commercial activity. CASL prohibits the delivery of such messages without the recipient's consent. Consent may be implied in the context of an existing business relationship, subject to certain criteria and qualifications. In all cases, however, CEMs must, at a minimum, clearly identify the sender, include the sender's mailing address, and contain an 'unsubscribe' option. CASL also prohibits the installation of computer programs without the express consent of the owner of the electronic device. This applies when the device is located in Canada, or when the installer is located in Canada. There are exceptions to this rule, such as if the sender obtains a court order requiring the installation of the program, or where it is reasonable to believe that the owner consented to the program's installation (e.g. cookies or Java Scripts). The Canadian Radio-television and Telecommunications Commission ("CRTC") responds to the above-noted CASL violations via consumer complaints. Individual violators may be liable for up to $1 million per complaint, while businesses may be liable for up to $10 million per complaint. Additionally, directors, officers or agents of a company may be held personally liable if they directed, authorized, assented or acquiesced to, or participated in, the commission of the violation, subject to a "due diligence" defence. What is the PRA? The PRA (sections 47-51 of CASL) permits an individual or organization to commence a private action against those who allegedly violated certain CASL provisions. Furthermore, offending directors, officers or agents of organizations can be held jointly and severally liable for these alleged violations (subject to a due-diligence defence) if they directed, authorized, assented or acquiesced to, or participated in, the alleged violation, irrespective of whether the organization is sued. The private right of action allows a plaintiff to sue for actual and statutory damages. Actual damages are intended to compensate an aggrieved party for breach of his/her rights. A plaintiff is also entitled to sue for statutory damages unless the alleged violator(s) provided the CRTC with an undertaking to pay a fine and/or undertake certain corrective measures, or has already been served with a notice of violation by the CRTC, in respect of the same alleged conduct. Statutory damages could prove to be quite onerous. Anti-spam violations may result in an award of $200 per violation, up to $1 million per day. For instance, if a company sends out 1,000 emails per day to its customers, advertising for its annual holiday sale, for a period of 30 days prior to Christmas, and those emails do not comply with the relevant provisions of CASL, the company, as well as its directors, officers and agents may be jointly and severally liable for $3 million in statutory damages, in addition to compensatory damages. How the PRA might affect Insurers in Canada The PRA will probably affect insurers who issue Cyber / Privacy Liability policies in Canada, to the extent that they would cover third-party claims arising out of privacy violations. Violations of CASL and privacy laws are often intertwined. This is underscored by the fact that the Office of the Privacy Commissioner of Canada is responsible for enforcing certain CASL violations. Insurers who issue Directors' and Officers' Liability policies should also be concerned. D&O policies that do not expressly exclude marketing or privacy violations could be exposed to claims under the PRA because of the exposure to directors and officers. Additionally, insureds could attempt to seek coverage under the Personal/Advertising Injury section of CGL policies. Insurers who do not expressly exclude these sorts of claims could face exposure to significant defence costs. There is also the issue of whether statutory damages would be excluded as fines or penalties. This, of course, would depend on the wording of the particular policy. As articulated in section 51(1)(b) of CASL, they are not expressly called fines or penalties. In fact, while section 51(1)(a) refers to "compensation" (i.e. compensatory damages), section 51(1)(b) does not denote statutory damages by any name; it simply describes the maximum amounts that could be owed. Therefore, insurers could have difficulty successfully arguing that they do not owe indemnity for such amounts. Moreover, insurers underwriting these risks in Canada should be concerned about the PRA providing a further avenue for class action litigation. Privacy class actions are already on the rise in Canada, especially with recent court decisions affirming common law privacy rights. The PRA is likely to result in the continuation of this trend, as CASL relates to both marketing and privacy law, which would mean further litigation costs incurred by insureds, and, therefore, insurers potentially covering such defence costs. While some refer to class action litigation as a licence to print money, it can often become, for insureds and insurers, a licence to burn money. That is why it is important to be very wary of CASL and the PRA now, before underwriting any further policies in Canada for which such claims may trigger coverage. * TINA.org Lists Some of Unfulfilling Settlements in 2016 --------------------------------------------------------- Moneylife reports that TINA.org tracked more than 400 class-action lawsuits relating to false or deceptive advertising in 2016 and as always kept a watchful eye on the trends, outcomes, and settlements. Advertisements of 100-percent grated cheese grated on consumers as did so-called healthy and natural foods, supposed discounts, and earth-friendly vehicles that aren't. Underfilled packages also prompted consumers to turn to the courts. But just as underfilled containers were a source of frustration, so were some of the unfulfilling settlements. Here's TINA.org worst settlements list for 2016. 1. Burlington Coat Factory 2. Dutch LLC 3. The Metropolitan Museum of Art 4. Starbucks 5. Ticketmaster 6. CVS So that wraps up last year's worst list. But no worries. We can already tell there's more in the pipeline. We are particularly interested in watching the outcome, for example, of a $20 million lawsuit against KFC by a New York woman who alleges that the fast- food chain knowingly misleads consumers with advertised images of "overflowing" chicken for its Family Fill Up meal that doesn't represent the amount of chicken customers actually get. There's also this complaint against Chipotle filed in California that alleges the Mexican fast food chain's chorizo burrito leaves customers excessively full and can't possibly be just 300 calories. * Trump Administration May Fight Efforts to Outlaw Administration ----------------------------------------------------------------- James R. Copland, writing for Morning Consult, reports that the incoming Trump administration should work quickly to reverse the Obama administration's aggressive efforts to outlaw arbitration. Arbitration -- essentially, a contractual agreement to resolve disputes out of court -- is at least as fair as litigation, significantly faster and significantly cheaper. Arbitration helps consumers benefit through more services and lower prices, and the spread of arbitration agreements has helped to limit the once- explosive growth in America's litigation costs. Trial lawyers hate arbitration because it squeezes their outsized contingent fees out of the system. Lawyers and law firms have been the largest special-interest political contributors to Congress in each electoral cycle of the 21st century, and the plaintiff's bar has concentrated its largesse among Democrats. Two of the three largest contributors to the career of retiring Sen. Harry Reid (D-Nev.) were out-of-state plaintiffs' law firms, trailing only his home-state MGM Casinos. The Obama administration has been working feverishly through its last days to eliminate arbitration clauses through executive actions, new regulations and new regulatory interpretations. The first battleground for the Obama administration involved class-action lawsuits over employee wages and hours. In January 2012, the National Labor Relations Board decided, for the first time, that class-action waivers in labor contract arbitration clauses violated employees' collective-bargaining rights under the National Labor Relations Act of 1935 -- which preceded by more than three decades the modern class-action litigation device. The board's decision was adopted by two Democrat appointees, one of whom -- Craig Becker, the former associate general counsel of the Service Employees International Union -- was a "recess" appointee whose tenure had already expired. (The administration had resorted to recess appointments to fill the board after failing to reach a compromise with Senate Republicans; the Supreme Court unanimously rebuked the administration's gambit.) The NLRB has continued to assert its interpretation in the face of conflicting appellate court decisions, and the issue now awaits Supreme Court review. The 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act, enacted in the wake of the 2008 financial crisis, not only outlawed arbitration clauses in mortgage-loan contracts but also opened up new avenues for the Obama administration to take executive action. In March 2015, the Obama administration's Consumer Financial Protection Bureau, newly created under Dodd- Frank, released a study that purported to justify a potential rule that would prohibit arbitration clauses that foreclosed class- action lawsuits in various other consumer-financial products. The rule was proposed in May 2016. In response to a request by the American Association for Justice - - the organization formerly known as the Association of Trial Lawyers of America -- the Centers for Medicare and Medicaid Services proposed a rule outlawing arbitration clauses in nursing- home contracts in July 2015. The final rule was issued in September of 2016 before a federal judge blocked the rule from taking effect in November. These are just some of the areas in which the Obama administration has acted to curtail arbitration. The Department of Education has issued new rules outlawing arbitration clauses in student-loan contracts, and the Labor Department's new fiduciary rules governing investment advisers foreclose arbitration and are designed to be enforced through class-action lawsuits. The administration has even gone so far as to "blacklist" companies that include arbitration clauses in their employment contracts -- preventing them from doing business with the government. Each of these attacks on arbitration is an executive-branch end run around Congress, which has by and large resisted the trial lawyers' assault on private dispute resolution. These attacks on arbitration also share the common feature that they would hurt consumers and the broader public for the benefit of the Obama administration's trial-lawyer pals. Consider nursing homes. After an explosion of lawsuits in the 1990s, arbitration clauses became standard in nursing home contracts by 2002. Not coincidentally, Medicaid expenditures on nursing-home care -- which constitute one-third of all Medicaid expenses -- peaked in inflation-adjusted terms that very year. Eliminating arbitration clauses in nursing-home contracts will drive up the cost of such care: a 2003 study by the U.S. Department of Health and Human Services found that the principal effect of nursing-home litigation was to prompt insurance companies to hike the price of litigation insurance across the board. And patients will see no improvement in services or safety: a 2013 study in the journal Medical Care found that "tort litigation does not increase the quality performance of nursing homes, and may decrease it slightly." The increased use of arbitration has helped to slow the growth rate in litigation costs in recent years, but U.S. tort liability costs remain 2.6 times the cost in the European Union, according to a 2013 study by NERA Economic Consulting, so it makes no sense to jettison one of the best available tools for limiting lawsuit abuse. On the campaign trail, President-elect Donald Trump pledged to "put an end to" what he called "the regulation industry" on his first day in office. Unwinding most of the Obama administration's actions to expand litigation by foreclosing arbitration will take more time than that, but it should be a top Trump administration priority. * Zelle Reviews 2016 Indirect Purchaser Class Action Highlights --------------------------------------------------------------- Christopher Micheletti, Esq. -- cmicheletti@zelle.com -- and Christina Tabacco, Esq. -- ctabacco@zelle.com -- Zelle LLP, in an article for JDSupra, review some of the more interesting court decisions in the indirect purchaser class action arena over the past 12 months and provide practitioners with some key takeaways for 2017 and beyond. While there were no major U.S. Supreme Court decisions that impacted indirect purchaser cases, and only a few circuit court decisions, the rulings below shed light on strategies related to class certification, Article III and antitrust standing, settlement objectors, and other indirect purchaser-related issues that practitioners are certain to face in the future. Class Certification Landscape Unchanged by Supreme Court Decision in Tyson Foods: Over the past five years, the Supreme Court has issued several class certification decisions, the effect of which has been hotly contested by commentators and parties in indirect purchaser and other antitrust class actions. In 2016, the Supreme Court decided Tyson Foods Inc. v. Bouaphakeo, which did not involve antitrust claims, but did involve the use of statistical evidence to establish class-wide liability. Earlier in 2016, the district court in In re Delta/AirTran Baggage Fee Antitrust Litigation discussed the effect of Tyson Foods on class certification standards in the antitrust context, and "reject[ed] the notion" that Tyson Foods and other decisions "broke new ground or materially altered the landscape of class certification." Rather, the court "consider[ed] Comcast, Dukes, Amgen [and] Tyson Foods . . . for precisely what they are -- helpful illuminations, applications and explanations of pre-existing law -- [and] . . . decline[d] defendants' invitation to treat them as something they are not." Indeed, that court reaffirmed the propriety of the use of "aggregated damages calculations" in antitrust class cases, and cited Tyson Foods to support the proposition that "individual damages allocation issues" that may follow an aggregate damage award "are insufficient to defeat class certification." As such, the antitrust class certification landscape appears to be unchanged by Tyson Foods. 24-State Indirect Purchaser Class Certified Under California Law: There was only one published decision on indirect purchaser class certification in 2016: In re Optical Disk Drive Antitrust Litigation. In Optical Disk Drive, the court certified a class of indirect purchasers of optical disc drives (ODDs) from 23 states and Washington, D.C., under California law. ODDs are devices that allow data to be read and written to optical discs such as compact discs and digital video discs. The plaintiffs alleged that the defendants -- one of which pleaded guilty to antitrust violations -- engaged in bid-rigging that was part of an industry-wide price- fixing conspiracy that involved agreements, exchanges of price, output and other confidential information. The defendants did not dispute that there were instances of anti-competitive conduct, including bid-rigging during ODD procurements by Dell, HP and Microsoft, but disputed whether the anti-competitive conduct went beyond the occasional rigged bid. The district court had previously denied the indirect purchasers' motion for class certification on the grounds that the indirect and direct purchasers failed to establish that impact at the direct purchaser stage could be shown on a class-wide basis. Proof of Impact to Direct Purchasers and the Incremental Showing Needed on Renewed Motions for Class Certification: Optical Disk Drive provided guidance on the incremental showing needed to succeed on a class motion the second time around. In the renewed motion, on the issue of whether impact to all or nearly all class members may be shown on a class-wide basis, the indirect purchasers' expert presented a "cointegration test" that was "more extensive" than that presented in the initial motion, a new "Granger causality" analysis, and modified his overcharge regression model in several respects that the district court found persuasive. The court noted that while the defendants challenged the expert's model implementation, "they d[id] not challenge the propriety of employing such models in the first instance." Additionally, defendants posited the oft-used argument that the expert's use of "aggregated" data masked individual variations among class members, while plaintiffs insisted that large sample sizes are necessary to ensure statistical reliability of the results. The Optical Disk Drive court found the plaintiffs' argument more persuasive. Pass-Through: On the key issue of pass-through -- which was not addressed in the first order -- the court analyzed several issues frequently raised by defendants, and provided a road map for indirect purchaser plaintiffs to rebut them. "Price point" challenges to overcharge pass-through blunted in product markets with declining prices: In Optical Disk Drive, the defendants claimed -- as they often do -- that retailers' use of price points, i.e., selling products costing in the hundreds of dollars at prices just under the next $100 mark (e.g., $999 for a computer), would prevent pass-through of a relatively small cost increase (e.g., $4), and that the retailer would keep the price at $999 rather than increase it to $1,003. The court rejected the defendants' hypothetical, however, noting that the price-fixing alleged in the case sought to "slow the decline in prices that otherwise naturally was occurring," and that cost declines were not limited to ODD components, but were occurring vis-Ö-vis all or nearly all computer components. The plaintiffs' expert also empirically analyzed the price point issue through a "quantile regression" analysis. Based on this analysis, which was designed to test the relationship between cost and price changes for computer price points at $99 increments, the plaintiffs' expert opined that the pass-through rate was 100 percent or greater at all price points. Reduced product quality as a basis for supporting consumers' overpayment for finished products and components: The plaintiffs' renewed motion also argued that manufacturers, rather than attempt to adjust product price in the face of cost changes, will adjust the "quality" of particular computer systems, and thereby preserve their desired profit margins for a particular target retail price. The defendants argued that such a focus on product quality necessarily implicates consumers' subjective desires and requires a consumer-by-consumer inquiry regarding the desirability of product features. The court rejected this argument, noting the "harm" to consumers lies in paying more than the product is worth, and does not turn on the individual user's desire for a particular feature. Below-cost sales do not preclude pass-through: The plaintiffs also successfully dispensed with the defendants' argument -- also frequently made in indirect purchaser cases -- that no pass-though can occur where sales, discounts or rebates result in below-cost sales. The court recognized the validity of the simple response that, in the actual world, the overcharge remains embedded in the discounted price -- which is higher than it should be, while in the but-for world, the discounted price is even lower. Finally, the plaintiffs' renewed motion relied on several well- established qualitative and quantitative methods of addressing pass-through on a classwide basis. The plaintiffs relied on well- settled economic theory that where the relevant markets are highly competitive, pass-through rates will be at or near 100 percent. The plaintiffs also relied on quantitative pass-through studies covering companies responsible for approximately 80 percent of personal computer sales, 45 percent of top distributor sales and including over 273 million Optical Disk Drive products, which showed pass-through rates that, while varying, are "uniformly high and positive." The above arguments convinced the court that, while the indirect purchasers' proof may or may not carry the day with the fact-finder at trial, the relevant decisions will be made on a classwide basis. Article III and Antitrust Standing Challenges Article III and antitrust standing challenges continued to be raised in 2016 by defendants seeking dismissal of indirect purchaser claims. These arguments generally rely, respectively, on the Supreme Court's decisions in Lujan v. Defenders of Wildlife and Associated General Contractors of California v. California State Council of Carpenters (AGC). For example, such arguments assert that indirect purchasers' antitrust injuries are too remote from the defendants' unlawful conduct, or are not the type of injury the antitrust laws were intended to prevent. Typically, the less "traceable" the allegedly price-fixed product is through the chain of distribution to the end consumer, or the more "remote" the claimed injury is from the unlawful conduct, the more likely a defendant will raise an Article III challenge and/or antitrust standing. Chemical Ingredients - Alleging Facts Supporting Article III Standing and Pass-Through: In Harrison v. E.I. DuPont De Nemours and Company, the court addressed allegations regarding both Article III and antitrust standing, and provided guidance on what is needed to establish standing at the pleading stage when the product at issue is a chemical or ingredient used in a product. In Harrison, indirect purchasers of titanium dioxide, a pigment used for whiteness, brightness and masking of colors in paint and coating products, alleged that artificially inflated titanium dioxide prices were passed-through to end consumers of end products containing the chemical. In a prior dismissal order, the court found the plaintiffs' broad pass-through allegations pertaining to the use of titanium dioxide in "architectural coatings" deficient given the breadth of that finished product market and variation in the amount of titanium dioxide used in those products. Noting that some architectural coatings contained only "trace amounts" of titanium dioxide, and that the plaintiffs had provided product composition detail as to only one paint product, the court dismissed for failure to meet the requirement of Lujan that the plaintiffs' injury be "fairly traceable" to the defendants' conduct. In their amended complaint, the indirect purchaser plaintiffs limited the class to end purchasers of "architectural paint" (eliminating resellers). The plaintiffs substantially beefed-up their factual allegations related to pass-through, including identifying the specific paint product purchased by each plaintiff and, in some cases, disclosing what percent of the paint constitutes titanium dioxide. The amended complaint also alleged (1) that titanium dioxide is the costliest component of architectural paint (50 percent of "flat coatings" cost and 33 percent of "high-gloss coatings" cost), thereby preventing manufacturers from absorbing an increase in the cost of titanium dioxide; (2) the presence of certain architectural paint market characteristics that economic theory indicates will yield nearly 100 percent pass-through of cost increases; and (3) that manufacturers made statements acknowledging that recent increases in paint prices were due to increases in the cost of titanium dioxide. The court found these and other allegations sufficiently alleged an injury traceable to defendants' conduct, and relied on many of the same allegations in rejecting the defendants' further argument that the plaintiffs failed to meet the antitrust standing requirements under AGC.[25] Key Takeaways from Harrison for Indirect Purchasers of Chemical Products or Other Ingredients Incorporated Into Finished Products: Do not overreach on the class definition by incorporating finished products that contain trace or minimal amounts of the alleged price-fixed chemical or ingredient. Do your homework on finished- product composition and the percentage of the chemical or ingredient at issue contained therein, and include detailed pass- through allegations regarding market conditions that predict pass- through, downstream market commentary regarding the impact of costs on price, and quantitative evidence of cost changes affecting prices. Location of Class Representatives' Purchases Affecting Article III Standing: In re Capacitors Antitrust Litigation involved indirect purchaser (and other) plaintiffs alleging that defendants, foreign manufacturers of capacitors, participated in a decade-long global conspiracy to fix capacitor prices. Capacitors are "ubiquitous component[s] in electronic devices of all types." The court addressed whether Article III standing may be satisfied by a general allegation that "each named plaintiff paid artificially inflated prices for capacitors as a result of defendants' price- fixing conspiracy," regardless of whether the named plaintiff's product purchase occurred in the state under which the state law claim is asserted. The court noted the "trend in this district and in other courts is to require an in-state purchase to establish Article III standing for state antitrust and related consumer protection claims," and held that "in-state injury in the form of an in-state purchase of a capacitor at a supracompetitive price is required here to satisfy Article III standing for each of the state law claims asserted." The court emphasized that "residence in a state-alone -- without a purchase or any other conduct amounting to 'injury' - - cannot be sufficient, or even relevant ..."[30] Indirect Purchaser that was Assigned Direct Purchaser's Claims Satisfies Article III Standing Based on Indirect Purchases: A decision that seems, in some respects, at odds with the above- referenced Capacitors decision is the Third Circuit's decision in Hartig Drug Company v. Senju Pharmaceutical Co. Ltd. In that case, an indirect purchaser brought suit for damages under the Sherman Act based upon an assignment of claims received from a direct purchaser -- thereby sidestepping the Illinois Brick bar to indirect purchaser claims under Section 4 of the Clayton Act.[32] Notwithstanding that the indirect purchaser plaintiff was, by virtue of the assignment, suing under federal law, the Third Circuit found that Article III standing was established by "allegations . . . that it was in fact harmed by the downstream effects of the defendants' anti-competitive behavior."[33] Thus, unlike the court in Capacitors, the Third Circuit looked more generally to overcharge-related injuries (i.e., indirect purchases) that were not the subject of the claim (i.e., direct purchases) it was asserting in the action. No Consideration Required to Assign Direct Purchaser Claims to Indirect Purchaser: Another case involving an assignment of rights to an indirect purchaser was Wallach v. Eaton Corporation. There, the plaintiff trucking company, Tauro, alleged that Eaton, a transmission supplier, entered into exclusive dealing agreements with original equipment manufacturers to maintain monopoly power in the market for transmissions used by class 8 trucks. Tauro was an indirect purchaser, and received an assignment of antitrust claims from another trucking company, R&R, a direct purchaser of Eaton transmissions. The Third Circuit addressed whether such an assignment required consideration. The court, applying federal common law and the restatement of contracts, held that consideration is not required. In so ruling, the court examined the purposes of antitrust law generally and the doctrine of direct purchaser standing, including Illinois Brick. The court concluded that requiring consideration "has little role to play in advancing the goals of Illinois Brick," and could actually undermine one of them by discouraging private enforcement actions. Adding Named Plaintiffs for Class Certification Motion In 2016, district courts remained open to indirect purchaser plaintiffs' efforts to add new plaintiffs to support existing state law claims alleged in opening or operative complaints. In these cases, new or additional named plaintiffs were necessitated by narrowed class definitions, discovery that some plaintiffs made nonqualifying purchases, by named plaintiffs simply withdrawing from the case, as well as where the opening complaint asserted 29 indirect purchaser state classes but only included named plaintiffs from eight states. Addition of named plaintiffs in these cases was sought through Rule 21 (adding or dropping parties) or Rule 24 (intervention). Indirect Purchaser Settlements - Objectors Imposition of an Appeal Bond and Sanctions on Settlement Objector. As many indirect purchaser counsel are aware, a troubling abuse of the class action settlement approval process has emerged as certain lawyers repeatedly orchestrate canned objections that ultimately do not benefit settlement classes. Such objections are overruled by trial courts and objectors then appeal orders approving class action settlements. In re Polyurethane Foam Antitrust Litigation[37] provides insight on strategies that may be employed in deterring "professional" or "serial" objectors from continuing to assert bad faith objections. In Polyurethane, the indirect purchaser plaintiff classes alleged that firms in the polyurethane foam market engaged in a decade- long conspiracy to fix the prices of foam products. The indirect purchasers settled with the defendants, and after the settlements were finally approved, certain objectors appealed, and the court required those objectors to post an appeal bond. The court analyzed a number of factors in determining whether a bond should be imposed, including whether the objectors acted vexatiously or in bad faith. After recounting the objectors' histories as "professional" or "serial" objectors, the court found that each of the objectors had "shown bad faith and vexatious conduct, both in prior cases and in this action," and that "their conduct here resembles scavenger ants on a jelly roll, scrambling to extort money from the approved settlements." Concluding that an appeal bond should be imposed, the court next analyzed whether to include amounts in addition to taxable costs. Ultimately, a $145,463 bond was imposed, which included taxable costs of $10,000, increased administrative fees due to protracted claim administration of $15,000, lost interest of $30,463, and attorneys' fees of $90,000. None of the objectors posted the appeal bond. One untimely objection was dismissed, and three of the other appeals were voluntarily dismissed about one month after the bond order was entered. With respect to the objector that remained, the plaintiffs later sought and obtained sanctions against him. Notably, the hold-out objector failed to post the appeal bond, had his to motion to reverse or stay the bond denied, and had his appeal dismissed by the Sixth Circuit. He also filed a petition for rehearing en banc, which was denied, and unsuccessfully sought to stay the ruling pending his planned Supreme Court petition for writ of certiorari. Recognizing that the objector was continuing his vexatious use of the judicial system, the district court imposed a penalty of $15,303, representing interest lost by the plaintiff class from April to October 2016. While the hold-out objector's appeal efforts continue to delay distribution of settlement proceeds to class members in Polyurethane, these orders provide guidance -- particularly in the Sixth Circuit -- for indirect purchaser counsel seeking relatively expeditious methods to dispose of serial objectors' frivolous objections in future litigation. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Marion Alcestis A. Castillon, Ma. Cristina Canson, Noemi Irene A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2017. All rights reserved. ISSN 1525-2272. 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