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/raid1/www/Hosts/bankrupt/CAR_Public/170118.mbx C L A S S A C T I O N R E P O R T E R Wednesday, January 18, 2017, Vol. 19, No. 13 Headlines ADEPTUS HEALTH: Faces Class Action Over Excessive ER Fees AFNI INC: Wins Summary Judgment; Court Closes "Benali" Class Suit AMERICOLLECT INC: Certification of Class Sought in "Johnson" Suit ANTHEM HEALTH: Court Certifies Class of Insureds in "Wilson" Suit APPLE: Settles California Labor Suit Over Rest Meals for $2MM AUSTRALIA: NT Faces Class Action Over Abuse of Juvenile Detainees AVEDA TRANSPORTATION: Court Certifies FLSA Class in "Waltz" Suit BAYER CORP: Fidelma Fitzpatrick Named Essure Case Lead Counsel BELLAMY'S: Maurice Blackburn, Slater & Gordon Mull Class Actions BLUE SHIELD: Judge Dismisses Harvoni Hep C Drug Class Action BRISTOL HARBOUR: 160 Workers to Share $412,500 Settlement Fund BROWNLINK MEDIA: College Senior Mulls Internship Class Action CANADA: Judge Set to Rule on RCMP Sexual Harassment Class Action CANADA: Order to Produce Young Offender Records Appealed CARING FOR MONTANANS: Bid to Certify Class in "Budd" Suit Denied CHANGE HEALTHCARE: Court Denies Pressman's Bid to Certify Class CHICKEN SHACK: Court Certifies TCPA Class in Compressor Suit CHIPOTLE: May Face Suit for Using Photo Without Permission CONVERGENT OUTSOURCING: "Nyby" Suit Settlement Gets Prelim. Nod CRAVE RESTAURANT: Class of Servers Certified in "Ullett" Suit DARDEN RESTAURANTS: Averts Class Action Over Unpaid Vacation Time DARK STAR: Rosas Moves for Certification of Field Workers Class DEUTSCHE BANK: German Banks Face Suit for Collusion DEVON ENERGY: Sued for Underpaying Natural Gas Royalties DL BUILDERS: Valdovinos Moves for Class Certification Under FLSA DOLE FOODS: 9th Cir. Revives "All Natural" Label Class Action DONALD J. TRUMP: Plaintiff's Firm to Withdraw Spam Text Case ENDO PHARMACEUTICALS: June 9 Settlement Approval Hearing Set EXCEL STAFFING: Ferebee Moves for Certification of Nurses Class FALLS FESTIVAL: Law Firm Receives Response From Crush Victims FIELDTURF: Faces Third Duraspine Fraud Class Action in N.J. FREEDOM MORTGAGE: Court Tosses NJWPL Claims in "Atis" Class Suit GC SERVICES: Dains Seeks Certification of Classes and Subclasses HARTWOOD RESERVE: Appeals Court Reverses "Allen" Subclass Cert. HARMLESS HARVEST: Settles Coconut Water Labeling Class Action HEALTH RESOURCE: Brown Wins Bid for Conditional Certification HOME DEPOT: Can't Remove Tri-State Class Action to Federal Court HYUNDAI MOTOR: Faces Class Action Over Defective "Smart Trunks" INOTEK PHARMA: March 7 Lead Plaintiff Motion Deadline Set INSEEGO CORP: Monteverde & Associates Files Class Action JOHNSON & JOHNSON: Critics Condemn Talcum-Powder Lawsuits KRAFT FOODS: Judge Denies Motion to Stay Labeling Class Action LAND'S END: Certification of Class Sought in Gorss Motels Suit LOUSIANA: Denham Springs to Pursue Class Action Against DOTD MARCHESE HOSPITAL: Diluted Chemo Drug Victims Oppose Settlement MARLBORO: Lawyers Seek Up to $30-Mil. in Compensation MEDICREDIT INC: Privacy Breach Class Certified in "Raffin" Suit MEZENTCO SOLUTIONS: No Ruling Yet on Diluted Chemotherapy Case MGM: Settles Case Over Unpaid Internships, Jan. 17 Hearing Set MILLENNIUM PARTNERS: Faces Suit Over Leaning and Sinking Tower MULTI CABLE: Class of Technicians Certified in "Luviano" Suit MULTI-STATE LOTTERY: Rigged Games Suit Seeks Class Action Status NAT'L COLLEGIATE: Ex-Football Players File Concussion Class Suit NATIONAL CREDIT: Certification of Class Sought in "Hoffman" Suit NATIONWIDE EVICTION: Class Certification Sought in "Russell" Suit NORTHROP GRUMMAN: Carlson Seeks Class Certification Under ERISA NOVO NORDISK: Bernstein Litowitz Files Securities Class Action PACIFIC FINANCIAL: Class Action Lawsuit Goes Forward PATCO ELECTRICAL: Roberts Seeks to Certify Class of Electricians PULASKI COUNTY, IN: Hizer Seeks to Certify Disabled Persons Class RALEIGH HEART: Clinic Doctor Reprimanded Amid Class Action RESOURCE ENERGY: Class of Welders Certified in "Moresi" Suit SANTANDER CONSUMER: Anderson Seeks Certification of Class SCHWARTZ LEVITSKY: Appeal Court Rules in Favor of ESO Investors SCRAP INC: Status Hearing in Chicago Car Suit Reset for March 7 SEATTLE GENETICS: March 13 Lead Plaintiff Motion Deadline Set SEDGWICK: Female Partner Files Amended Gender Bias Class Action SERVIS ONE: McCamis Seeks Class Certification Under FCCPA & FDCPA SOLERA HOLDINGS: Chancellor Grants Motion to Dismiss Class Action SQUIP INC: Certification of Rule 23 Class Sought in Freed Suit STAPLES: Settles Class Action Over Deceptive Rewards Program STARBUCKS CORP: Sued Over Failure to Provide Proper Meal Periods STONEMOR PARTNERS: Lead Plaintiff Bid Deadline Set for Jan. 20 SYNUTRA INTERNATIONAL: TheGrantLawFirm Files Class Action TD BANK: $20 Overdraft Charge Sparks Class Action TENNESSEE: Groups Challenge Driver's License Law TIBET PHARMACEUTICALS: June 6 Settlement Fairness Hearing Set TILE SHOP: Excessive Deduction Class Certified in "Osorio" Suit TIMBERCORP GROUP: High Court Rules on Anshun Estoppel Issue TRUEVISIONS: FongDi to Launch Class Action on Behalf of Customers UNITED RECOVERY: Class Certification Sought in "Merkovich" Suit UNITED RESOURCE: Wins Final Approval of "Kopchak" Suit Settlement UNITED STATES: Files Motion to Dismiss H-2b Visa Case in Guam US BANK: Status Hearing in "Snyder" Class Suit Set for March 8 VOLKSWAGEN: Faces Suit From British Motorists Over Dieselgate VOLKSWAGEN AG: Harcus Sinclair Applies for Group Litigation Order VOLKSWAGEN AG: Jan. 30 Hearing Set on UK-Based Motorists' GLO WALDMAN & KAPLAN: Files Joint Bid to Certify Class in O'Brien Suit WASHINGTON, DC: Developmental Disabilities Class Action Settled WINFIELD MURDOCK: Faces Class Action Over Unpaid Overtime Wages YAHOO! INC: Illinois Court Certifies TCPA Class Action YOUR WIRELESS: Jackson Moves for Certification of TCPA Class * Enforceability of Mandatory Arbitration Agreements Challenged * France Adopts Class Action Regime for Data Protection Violation * IoT Security Vulnerabilities May Spark Legal Risks * TCPA-Related Class Actions Dominate Filings During Fall 2016 * Ticket-Fighter to Launch Suit Challenging Photo Radar Ticketing ********* ADEPTUS HEALTH: Faces Class Action Over Excessive ER Fees --------------------------------------------------------- Sabriya Rice, writing for Dallas News, reports that more trouble is ahead for Lewisville-based Adeptus Health, the nation's largest operator of free-standing emergency rooms. A Colorado man has filed a $5 million lawsuit and is seeking class action status, in perhaps the first case to question the facility fees charged to patients. It claims that Adeptus takes advantage of confusion in the marketplace, fraudulently preying on consumers by failing to disclose excessive costs. Much like hospital-based emergency rooms, the stand-alone centers charge a facility fee to cover the overhead costs associated with staffing teams of emergency specialists around the clock. However, the lawsuit says that Adeptus "tricks patients into believing its centers are appropriate," even when the consumer might be better off at urgent care, or lower-cost facilities that can handle non-emergency situations and where no such fee is charged. Moreover, they do not disclose the amount of the charge before the patient undergoes care. The "widespread and deceptive business practice" leaves patients with up to $6,000 in unexpected fees each visit, said the complaint filed Jan.3 in the Texas Eastern District Court in Sherman. Adeptus Health said it could not comment on the lawsuit at this time. The case was filed on behalf of at least 100 others with similar claims in Colorado and Texas, said filing attorney Stuart Cochran, of the Dallas firm Steckler Gresham Cochran. The plaintiff, a psychiatrist named David Adkinson, said he went to an Adeptus facility in Colorado Springs in 2014 after he fell. The appointment lasted a few minutes and he was diagnosed with "a bruise." The bill totaled more than $2,000, including a $1,200 facility fee. Model challenged The sustainability of the free-standing emergency room model has been criticized by health policy researchers, economists, consumer groups and others in recent months. Clever and innovative businessmen may have found a way to take advantage, particularly of confusion in the medical billing system, said Britt Berrett, who directs the undergraduate program in Healthcare Management at the Naveen Jindal School of Management at University of Texas at Dallas. "I'm not surprised this kind of litigation would emerge," he said. "It's a reflection of how chaotic this portion of the industry is right now. It's the billing and economics that are often suspect." Adeptus experienced rapid growth with its model after going public in 2014. It now operates more than 90 in several states, including Texas, Colorado, Arizona and Ohio. The company generated nearly $103 million in revenue in 2013. Revenues more than tripled by 2015, jumping to $365 million. But things arguably took a turn last year. Following an $11 million dollar earnings loss in third quarter, stocks plummeted and have not recuperated. On Jan. 10 Adeptus stock traded below $9 a share, compared to more than $40 per share at the start of 2016. The loss was attributed to high costs that resulted in low volumes at facilities that were not hospital-affiliated. Patients preferred facilities that were part of a hospital. Adeptus leadership said it had established plans to correct the poor performance, to include forging partnerships with hospitals, as they have done with Texas Health Resources. Even when there are partnerships, however, patients may still be charged hefty out-of-network fees due to confusing billing practices, found an investigative report from Colorado's KUSA. Adeptus has also had sudden leadership changes. In November CEO Thomas Hall, who had been with Adeptus since 2012 and was credited with more than quadrupling the number of facilities it operates, accelerated his retirement. About one month later, the chief operating officer Graham Cherrington was fired. Spiraling costs In an age of reform where health policy has been focused on improving quality and driving down costs, researchers have questioned the financial motivations of the for-profit facilities. They tend to burgeon in wealthier communities where patients are privately insured and pay high deductibles. Operators of the facilities argue that the location choices make sense from a business perspective. Federal regulations protect patients from being denied care for emergency services, even if they cannot afford it. Medicare and Medicaid do not reimburse for services provided to patients by free-standing emergency departments. Treating people without compensation is not financially sustainable, so independent operators of free-standing facilities avoid areas with high concentrations of low-income patients, according to the Texas Association of Freestanding Emergency Centers. Individuals with injuries that are not life-threatening should avoid locations that say "emergency" and "ER" on the signage as rates will be comparable to hospitals and a facility fee will be charged, TAFEC says. But information about the existence and amount of the facility fee needs to be more transparent, argued the lawsuit filed this month. Freestanding urgent care and emergency centers still appear to be synonymous to the public, "and it is this perception upon which Adeptus preys," the complaint said. Adeptus has until Jan 25 to respond to the court. AFNI INC: Wins Summary Judgment; Court Closes "Benali" Class Suit ----------------------------------------------------------------- The Hon. Brian R. Martinotti denied the Plaintiff's motion for summary judgment in the lawsuit styled DAVID BENALI, on behalf of himself and all others similarly situated v. AFNI, INC. and JOHN DOES 1-25, Case No. 3:15-cv-03605-BRM-DEA (D.N.J.). Judge Martinotti granted the Defendant's cross-motion for summary judgment. Judge Martinotti also ordered the Clerk of the Court to administratively terminate the Plaintiff's motion for class certification and mark the case closed. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=TQ7Rykhj AMERICOLLECT INC: Certification of Class Sought in "Johnson" Suit ----------------------------------------------------------------- The Plaintiff in the lawsuit styled ENEIDA JOHNSON, Individually and on Behalf of All Others Similarly Situated v. AMERICOLLECT, INC., Case No. 2:17-cv-00001 (E.D. Wisc.), moves the Court to certify the class described in the complaint, and further requests that the Court both stay the motion for class certification and to grant the Plaintiff (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Damasco and decisions like it imposed significant burdens on the Court and on Plaintiff's Counsel, the Plaintiff asserts, citing Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence, the Plaintiff states. The Plaintiff asserts that the Plaintiff is obligated to move for class certification to protect the interests of the putative class. The Supreme Court's decision in Campbell-Ewald Co. v. Gomez, 2016 U.S. LEXIS 846 *14-15 (U.S. Jan. 20, 2016) (internal citations omitted) and Chapman should have put a stop to this practice. Unfortunately, they have not, the Plaintiff notes. In dicta, the Supreme Court left open the possibility that a defendant facing a class action complaint could moot a class representative's case by depositing funds equal to or in excess of the maximum value of the plaintiff's claim with the court and having the court enter judgment in the plaintiff's favor prior to a class certification motion. Campbell-Ewald Co., 2016 U.S. LEXIS 846 *19 ("We need not, and do not, now decide whether the result would be different if a defendant deposits the full amount of the plaintiff's individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount."). As the Motion is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, the Plaintiff contends. The Plaintiff also wants to be appointed as class representative, and the appointment of Ademi & O'Reilly, LLP as class counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=CJRKgh1T The Plaintiff is represented by: Shpetim Ademi, Esq. John D. Blythin, Esq. Mark A. Eldridge, Esq. Denise L. Morris, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: sademi@ademilaw.com jblythin@ademilaw.com meldridge@ademilaw.com dmorris@ademilaw.com ANTHEM HEALTH: Court Certifies Class of Insureds in "Wilson" Suit ----------------------------------------------------------------- The Hon. Thomas B. Russell granted the Plaintiff's motion for class certification filed in the lawsuit entitled MARGARET WILSON, individually and on behalf of a Class of persons similarly situated v. ANTHEM HEALTH PLANS OF KENTUCKY, INC., Case No. 3:14- cv-00743-TBR (W.D. Ky.). The certified class is defined as: All persons who are or have been insureds, participants in, or beneficiaries of a health insurance policy issued or administered by Anthem Health Plans of Kentucky, Inc., which contains dollar or hour limits on the provision of treatment for Autism Spectrum Disorders and who have made a claim for, and have been denied coverage or reimbursement for Applied Behavior Analysis treatment for Autism Spectrum Disorders on the grounds that the policy's dollar or hour limits had been exceeded. Margaret Wilson is the mother of M.W., a minor child with Autism Spectrum Disorder. Both Ms. Wilson and M.W. are beneficiaries under a health benefit plan provided by Anthem under ERISA. Ms. Wilson alleges that the Anthem Plan does not impose limitations on medical and surgical benefits as it does for ASD and, therefore, the limitations that the Anthem Plan places on ASD treatment violate the Mental Health Parity and Addiction Equity Act. Judge Russell appoints the Plaintiff's counsel, Robert R. Sparks, Esq., and Strauss Troy Co., L.P.A., as class counsel. Judge Russell denied as moot the Plaintiff's motion to strike undisclosed evidence and testimony. The Plaintiff must submit for the Court's approval, within 14 days of the issuance of the Order, a proposed notice for notifying class members of the action. The Defendant will have seven days after the filing of the Plaintiff's proposed notice to file objections thereto. A copy of the Memorandum Opinion and Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=eMYMn0Pb The Plaintiff is represented by: Robert R. Sparks, Esq. STRAUSS TROY CO., L.P.A. 150 East Fourth Street Cincinnati, OH 45202 Telephone No.: (513) 621-2120 Facsimile No.: (513) 241-8259 E-mail: rrsparks@strausstroy.com APPLE: Settles California Labor Suit Over Rest Meals for $2MM ------------------------------------------------------------- Lawyers and Settlements reports that a California labor lawsuit that alleged Apple did not properly provide meal and rest breaks and did not pay employees in a timely manner has resulted in a $2 million award to employees. The lawsuit was originally filed in 2011 by employees who worked at Apple retail stores in San Diego and was later changed to a class action lawsuit including California employees who worked at Apple retail stores from 2007 and 2012. The lawsuit alleged that Apple's meal period policy did not comply with California labor law, and caused employees to work more than five hours straight without the opportunity to take their meal period and with no additional pay when they missed their meal break. The plaintiffs claimed they did not waive their right to a meal period, nor did they waive their right to a rest break. The jury agreed with Apple employees, finding that they should have received proper meal breaks and awarding them $2 million. Additionally, plaintiffs alleged they were not paid in a timely manner when their employment with Apple was terminated. One employee, Ryan Goldman, was reportedly terminated from his position on January 11, 2011, but did not receive a final paycheck until almost a month later, on February 7, 2011. Finally, the lawsuit alleged Apple restricted its employees from discussing working conditions. "The majority, if not all, of Apple's employment policies, make it clear that Plaintiffs are not allowed to discuss Apple's working conditions," the suit claimed. By prohibiting employees from discussing Apple or it's policies, Apple was able to "invoke fear into the class members that if they so much as discuss the various labor policies, they run the risk of being fired, sued, or disciplined." According to reports, around 21,000 workers were included in the lawsuit, meaning the amount per worker would be small. But a bench trial could determine whether people who worked at Apple's corporate offices and were not exempt from breaks are similarly eligible for an award. Under California labor law, employees are entitled to a thirty- minute unpaid meal period when they work more than five hours in a shift and a 10-minute paid rest period for every four hours worked or major portion of four hours. The lawsuit is Felczer et al v. Apple Inc, case number 37-2011- 00102593, in Superior Court of the State of California, San Diego. AUSTRALIA: NT Faces Class Action Over Abuse of Juvenile Detainees ----------------------------------------------------------------- Helen Davidson, writing for The Guardian, reports that current and former detainees of the Northern Territory's juvenile detention centre have launched a class action against the NT government over their treatment, including fresh allegations of teargassing in April last year. The social justice class action will allege the then children were subject to abuse, battery, and/or false imprisonment while being held in NT correctional facilities, as recently as July last year. The class action announced on Jan. 11 is brought on behalf of detainees who were abused while in detention between 1 August 2006 and 23 December 2016. "We do not suggest the members of this class action did not deserve to be deprived of their liberty but we do claim that when children are routinely subject to human rights abuses . . . that they should be compensated and those who do it should be accountable," Maurice Blackburn class action principal lawyer, Ben Slade, said on Jan. 11. The lead applicants are Dylan Jenkings and Aaron Hyde, two men now aged 18 and 20, who will claim compensation for alleged abuse they suffered as teenage detainees. At the date of application at least seven group members of the class action had claims against the NT government, but the lawyer representing the group believes there could be hundreds of potential claimants. The case is expected to bring into question the legality of detaining children in isolated cells, as well as past laws around restraints. The application noted legislative changes made last year to the use of restraints on children, but said Hyde and Jenkings were still wrongfully imprisoned and detained even under the previous laws. According to a statement of claim filed in the federal court, Jenkings alleged in April last year staff members entered his cell at Don Dale, teargassed him and another detainee, and handcuffed them. Jenkings accused guards of pushing him to the ground and punching him twice in the back of the head, before dragging him to another cell without CCTV and beating him with batons and shields. He also claimed he was handcuffed and kicked during another incident in July. In mid-2012 Hyde, then 15, was allegedly removed from his cell at Don Dale by guards who used "more force than was reasonably necessary" and who struck him in the ribs and carried him out, slamming his head against two doorways. The statement claimed Hyde had been compliant when guards arrived. He was allegedly left handcuffed to a fence with his arms above his head for an hour, and then placed in the isolation cell of the behavioural management unit. He also alleged his clothing was confiscated and he was left with only his underpants in the cell for two to three weeks. It was also alleged when Hyde asked for a blanket because there was no mattress and he was cold, a female guard told him to masturbate to keep warm. The statement of claim alleged Hyde was kept in isolation for longer than the allowable 72 hour maximum on numerous occasions. Both applicants are currently incarcerated in Darwin's adult prison. Hyde is serving an 11-year sentence with six years non- parole after he pleaded guilty to offences related to a crime spree which ended in a high-speed car crash and the death of his friend. His mother, Tracey Hyde, told Guardian Australia when she read the statement of claim she questioned whether she had done the right thing by acting with "tough love" and putting faith in the justice system when he had told her he was being mistreated. Aaron Hyde kept most of the detail from his mother out of concern he would worry her, she said, and many of the allegations shocked her. "Reading that in detail . . . especially being handcuffed to the fence and having to soil yourself in front of other people, and up to three weeks in solitary with nothing and then a female guard telling him to pull himself to keep warm, that's just unacceptable. "I know he was in there because he was doing the wrong thing, and I have no issues with that, but that treatment is not conducive to rehabilitation." She questioned if his criminal behaviour would have escalated if he had not been allegedly mistreated while in detention as a teenager. "Some of these kids have done some pretty horrendous stuff but that doesn't give guards the right to treat them the way they have. It's obvious now that whatever they're doing hasn't worked," she said. "As a community I think we need to sit together and find out exactly what worked and what hasn't worked and what options we have before us." Nicole Manison, acting chief minister of the NT, said the government was seeking legal advice and it would be "inappropriate to comment further" on a court matter. Ms. Manison said the alleged incidents occurred prior to the Michael Gunner-led government taking office, and noted the changes already made to the Youth Justice Act. She said the NT government had committed to putting children "at the centre of government, for the benefit of all Territorians". "By working across all sectors of government we can tackle these complex and difficult issues at an early age to get these kids away from crime -- and keep them out of the criminal justice system in the first place," she said. A royal commission into the protection and detention of children in the NT is under way, investigating a decade of policy direction and allegations of abuse and mismanagement. It was called by the prime minister, Malcolm Turnbull, following the broadcast of vision of several young detainees inside the Darwin and Alice Springs youth and adult detention facilities being teargassed, beaten and restrained. "The Territory's juvenile justice system has been shown over and over again to not only have failed to rehabilitate those in its care, but have allowed many children to be abused by some of its own employees," said Mr. Slade, who urged others to come forward. Mr. Slade told media in Sydney, Maurice Blackburn had been approached by Darwin-based legal workers to look into some cases. "We concluded that the evidence of assaults, battery and excessive use of isolation beyond the powers permitted by the Northern Territory's Youth Justice Act was overwhelming," he said. They also determined alleged victims had a right to compensation, and because of an "extraordinary" six-month limitation period they commenced action immediately. In a separate case, four other current and former detainees also sued the NT government last year, over their treatment inside Don Dale. The civil trial heard evidence from the detainees as well as a number of guards and senior staff members, and former corrections commissioner Ken Middlebrook. The NT Labor government, which came to power in August last year, has pledged to completely rewrite the Youth Justice Act, based on recommendations from the royal commission, expected to be delivered at the end of this year. AVEDA TRANSPORTATION: Court Certifies FLSA Class in "Waltz" Suit ---------------------------------------------------------------- The Hon. Matthew W. Brann grants the Plaintiffs' motion for conditional certification filed pursuant to the Fair Labor Standards Act in the lawsuit styled RANDY WALTZ, on behalf of himself and similarly situated employees v. AVEDA TRANSPORTATION AND ENERGY SERVICES INC., and RODAN TRANSPORT USA LTD., Case No. 4:16-CV-00469 (M.D. Pa.). On March 17, 2016, Plaintiff Randy Waltz filed a complaint against the Defendants Aveda Transportation and Energy Services Inc. and Rodan Transport USA Ltd asserting (1) a collective action under the FLSA for failure to pay an overtime premium, and (2) a class action for violations of the Pennsylvania Minimum Wage Act. The Motion seeks conditional certification of a class of 36 individuals pursuant to the FLSA. A copy of the Memorandum is available at no charge at https://goo.gl/aioSgR from Leagle.com. Plaintiffs Randy Waltz and Gary Solinger are represented by: Mark J. Gottesfeld, Esq. Peter Winebrake, Esq. WINEBRAKE & SANTILLO, LLC 715 Twining Road, Suite 211 Dresher, PA 19025 Telephone: (215) 884-2491 Facsimile: (215) 884-2492 E-mail: mgottesfeld@winebrakelaw.com pwinebrake@winebrakelaw.com Plaintiff Randy Waltz is represented by: R. Andrew Santillo, Esq. WINEBRAKE & SANTILLO, LLC 715 Twining Road, Suite 211 Dresher, PA 19025 Telephone: (215) 884-2491 Facsimile: (215) 884-2492 E-mail: asantillo@winebrakelaw.com Defendants Aveda Transportation and Energy Services, Inc., and Rodan Transport USA Ltd. are represented by: Mark A. Fontana, Esq. ECKERT SEAMANS CHERIN & MELLOTT, LLC 213 Market St., 8th Floor Harrisburg, PA 17101 Telephone: (717) 237-7183 Facsimile: (717) 237-6019 E-mail: mfontana@eckertseamans.com - and - Clayton M. Davis, Esq. Robert E. Sheeder, Esq. BRACEWELL LLP 1445 Ross Avenue, Suite 3800 Dallas, TX 75202-2724 Telephone: (214) 758-1023 Facsimile: (800) 404-3970 E-mail: clayton.davis@bracewelllaw.com robert.sheeder@bracewelllaw.com BAYER CORP: Fidelma Fitzpatrick Named Essure Case Lead Counsel -------------------------------------------------------------- Amanda Bronstad, writing for The National Law Journal, reports that Fidelma Fitzpatrick -- ffitzpatrick@motleyrice.com -- has been named lead counsel of the California litigation over Bayer Corp.'s Essure birth control device, the latest woman to spearhead a mass tort. Ms. Fitzpatrick, a partner in the Providence, Rhode Island, office of Motley Rice, was appointed last month to head a five-member plaintiffs executive committee in the Essure litigation before Alameda County Superior Court Judge Winifred Smith. Smith's order was made public on Jan. 6. About 50 lawsuits filed in California on behalf of more than 800 women allege Bayer failed to disclose that its Essure device could cause chronic pain, bleeding and unintended pregnancies. Ms. Fitzpatrick is the latest female attorney to be appointed to head a mass tort. Last month, a federal judge in New Jersey appointed two women to lead the federal multidistrict litigation against Johnson & Johnson over its talcum powder products and, in November, a federal judge in Pennsylvania named two women to lead an antitrust case. "We're seeing a new trend toward women looking for leadership positions and women being selected for leadership positions by courts," Ms. Fitzpatrick said. "It's important to have both men and women represented, but in a case like this where we're talking about birth control devices and women's health issues it's particularly important to have women represented." Joining Ms. Fitzpatrick on the committee are three women -- Erin Copeland of Houston's Fibich Leebron Copeland Briggs & Josephson; Kim Dougherty in the Boston office of Baltimore's Janet, Jenner & Suggs; Elizabeth Graham -- egraham@gelaw.com -- of Grant & Eisenhofer in Wilmington, Delaware -- and Edward Wallace - - eaw@wexlerwallace.com -- of Chicago's Wexler Wallace. Lead defense counsel is Alycia Degen -- adegen@sidley.com -- a partner at Sidley Austin's Los Angeles office. The litigation could test the bounds of an Aug. 29 decision by the California Supreme Court in Bristol-Myers Squibb v. Superior Court, which found that plaintiffs outside California could sue in California state courts. Bristol-Myers, backed by amicus groups like the U.S. Chamber of Commerce, has petitioned the U.S. Supreme Court to reverse that ruling. Ms. Fitzpatrick said she expected a battle early on over the Bristol-Myers decision's impact on the Essure cases. "We are optimistic and we do belief the BMS decision squarely holds these women are able to bring their claims in California state courts," she said. BELLAMY'S: Maurice Blackburn, Slater & Gordon Mull Class Actions ---------------------------------------------------------------- Daniel Palmer, writing for The Australian, reports that beleaguered infant milk group Bellamy's has again lowered its trading outlook, with chief executive Laura McBain falling on her sword after a tumultuous period for the former market darling. The update, which came a month after entering a trading halt and showed the group holding just $1 million in the bank, paved the way for the resumption of trade on Jan. 11, with investors rushing for the exit. As revealed by The Australian, Bellamy's has agreed a restructure of its take-or-pay organic powder contract with New Zealand dairy giant Fonterra. The under-pressure ASX-listed company conceded its inventory levels had gotten out of hand given the shortfall in actual sales against expectations, forcing the renegotiation of its key manufacturing contract. Among the changes to the deal is an extension of the initial five- year agreement by three years, which crucially relies on Fonterra receiving greater security over Bellamy's assets, providing the NZ group protection should the under-pressure Bellamy's collapse. "Fonterra has a strong relationship with Bellamy's, and together we have agreed to amend the five-year strategic manufacturing agreement by a further three years to ensure the sustainability and growth of the supply arrangement," the NZ group said in a statement. "The fundamentals for nutritional powders in China and the Asian market remain strong, and we look forward to continuing our strategic manufacturing arrangement with Bellamy's for the long- term." Bellamy's said it was seeking the support of its key lender to grant Fonterra second-ranking security over its assets. Fonterra and Bellamy's already had change of control provisions written into their contract, but the NZ group has also looked to expand those through the revised deal. Two additional grounds for termination have been added, with the first surfacing if a person or group acquires at least 50 per cent of Bellamy's shares. The second applies if a person or group claims over 30 per cent and Fonterra perceives them to have "effective control" of Bellamy's. It serves as a warning shot to the consortium led by Jan Cameron and Hugh Robertson, which claims support from 35 per cent of Bellamy's holders for a broader board shake-up. The development came amid another warning on weaker-than-expected sales and a new cost-cutting program. Bellamy's first stunned investors by detailing a surprise sales downgrade on December 2. The group then further confounded traders by entering a trading halt on December 12 as it looked to provide further clarity on its forecasts. After a torturous month for disheartened shareholders, the group has said it likely fell slightly short of the first-half sales forecast of $120 million detailed on December 2 as it detailed a range of $115m to $120m. Its full-year sales expectations were trimmed from $240m to a range of $220m to $240m, with the news arguably not as bad as traders had feared. However, just six weeks ago analysts had forecast full-year revenue of $368m. The group also detailed declining margins, with its gross profit margin seen sliding from 45.7 per cent in fiscal 2017 to a range of 39-40 per cent in the first half and 32-34 per cent in the second half of fiscal 2017. Bellamy's also said it anticipated booking pre-tax earnings of $22m to $26m for the full-year, less than half the $54.3m recorded last year in a sign of the extent of the once high-flying company's fall from grace. Bellamy's shares were smashed upon reopening, plunging 20 per cent to $5.35 by the close. In the initial flurry of selling, Bellamy's shares dived as low as $3.73, off 44 per cent. The lowpoint was its weakest mark since June 2015. The selling wiped $130m from the group's value, with its current market cap of $515m around a third of the record $1.5 billion valuation seen a year ago. Investors were also nervous about Bellamy's cash position as the company said its cash holdings at December 31 came to just $1m. This represents a significant reduction from levels of $32.3m as at June 30. Despite the struggles, Bellamy's said it had not breached debt covenants and would likely remain in compliance with its obligations under its debt facility through fiscal 2017. "The company's revenue and profitability have been impacted by lower than expected demand for Bellamy's infant milk formula, which has also led to increased inventory levels, excess ingredients and shortfall payments to suppliers," Bellamy's said in a statement. "The company has responded by amending a key manufacturing contract with Fonterra and implementing measures to reduce production and better manage inventory levels. "The board has also initiated a cost management program to reduce expenses throughout the business." Investors were also analysing the departure of former lauded leader Ms McBain, who will be immediately replaced by chief strategy and chief operations officer Andrew Cohen. Mr Cohen joined Bellamy's in June after holding a role as partner at consultancy Bain & Co. He will take the role in an interim capacity, with a search underway for a full-time replacement. Ms McBain will remain at the company until March 31 to assist the transition. "Laura has overseen the growth of the company over the past decade since she joined Bellamy's as general manager in 2006, including the expansion of Bellamy's markets and its brand," chairman Rob Woolley said. "I would like to thank Laura for her contributions to Bellamy's over the last 10 years." As part of an executive shake-up, chief financial officer Shona Ollington has been demoted and will now serve in an unspecified position within the finance team. Her position as CFO has been supplanted by Nigel Underwood, who recently held the same role at transport group Keolis Downer. The company has also brought in Dimitri Kiriacoulacos to serve as chief corporate development and legal officer. "The board and management are focused on rebuilding confidence with key stakeholders -- customers, suppliers and investors," Bellamy's said. The company's troubles have recently triggered a push for a board spill by a group of shareholders including Kathmandu founder Jan Cameron, who responded by criticising Bellamy's decision to sack its CEO. A special meeting of shareholders is expected to be called next month to vote on the spill. It comes as both Maurice Blackburn and Slater & Gordon assess potential class actions against the company. Bellamy's said it had not yet been served with any class action claims. BLUE SHIELD: Judge Dismisses Harvoni Hep C Drug Class Action ------------------------------------------------------------ JoAnn Seltzer, writing for Northern California Record, reports that more patients will have access to a life-saving medicine after a decision was made recently by a large insurer. According to Modern Healthcare, Blue Shield Life and Health and Blue Shield of California was facing a class-action suit in Northern California after it initially denied a costly Hepatitis C medicine to some patients. The lawsuit was dismissed by a federal judge after Blue Shield decided to expand coverage on the drug Harvoni. Previously, the company only covered the medicine for the sickest patients. Ryan Clary, executive director of The National Viral Hepatitis Roundtable, told The Northern California Record he believes everyone who has Hepatitis C who wants to be cured and has insurance and a provider willing to treat them should have access to the medicine. "Most people would like to be cured of an infection, that's a chronic, often life-threatening disease, before severe health complications arise," he said. "Being able to get rid of the anxiety of having a very severe virus that attacks the liver is, for us, reason enough." Hepatitis C can lead to a lot of complications from fatigue and muscle pain to liver disease. It's also the leading cause of liver cancer, Mr. Clary said. The effects of the disease vary from person to person. In addition to healing the sick, providing access to this class of medicine can prevent the spread of it, he said. Mr. Clary added that a person living with Hepatitis C may not be suffering from liver disease, but may continue engaging in risky behavior putting other people at risk, he said. If the person is cured they will no longer be infecting others. Hepatitis C currently kills more people than any other infectious disease in the United States including HIV, Mr. Clary said. "We have the opportunity to actually eliminate Hepatitis C in the United States. The tools are out there," he said. "It's a serious public-health threat." Prior to Harvoni and other drugs in its class, patients had to use a drug that needed to be injected by the patient for 48 weeks. Severe side effects, similar to chemotherapy, prevented many from even finishing the treatment, he said. Reservations about making it available to all insured patients is probably a combination of two factors, Mr. Clary said. The course of treatment needed can cost $100,000. Plus, there is a stigma attached to Hepatitis C in some cases. Mr. Clary said one way it can be spread is by the sharing of needles and the current opioid epidemic in California and the nation has helped to spread the disease. It's unfortunate that patients have to sue to get access to treatment, Mr. Clary said, but he is hopeful that cases like this will mean insurance companies will be less inclined to put such strict restrictions on life-saving medicine in the future. "I can't think of any other health condition where you would tell somebody we're going to wait until you get really sick before we treat you or in this case cure you. It just doesn't make any sense," he said. BRISTOL HARBOUR: 160 Workers to Share $412,500 Settlement Fund -------------------------------------------------------------- Julie Sherwood at Victor Post reports that about 160 workers in a class-action lawsuit alleging Bristol Harbour Resort violated labor laws will share in funds agreed to in a settlement amount totaling $412,500. "The parties reached an amicable resolution," said attorney Justin Cordello, Justin@CordelloLaw.com at Cordello Law PLLC who represented the workers. Eric Dolan, edolan@trevettcristo.com with Trevett Cristo Salzer & Andolina P.C. represented the resort most recently in the case. The decision signed by state Supreme Court Justice Matthew A. Rosenbaum outlines the settlement, which is subject to final court approval expected this March. The lawsuit claimed the resort in South Bristol for six years pocketed tips that should have gone to its banquet service staff, which includes bussers, wait staff and bartenders who worked at the resort between May 2008 and May 2014. The suit was filed on behalf of former Bristol Harbour employee Allison Plante and all other employees in a similar situation. According to the negotiated agreement, each member of the class action will receive a distribution from the settlement fund. The formula will determine what each individual member should receive based on their length of employment and other factors. The amount distributed will come from a fund balance after fees are paid. A settlement claim administrator will be paid about $16,250. Attorneys' fees will be no more than $165,000 and litigation costs no more than $5,000. Another local resort remains at the center of a lawsuit alleging violations of state and federal labor laws. A complaint filed in U.S. District Court was brought on behalf of Martin Hinckley Jr., a former employee of The Inn on the Lake in Canandaigua. The complaint seeks to recover damages for Hinckley and others in his situation through a class action. BROWNLINK MEDIA: College Senior Mulls Internship Class Action ------------------------------------------------------------- The Onion reports that aiming to transition seamlessly from her current position, college senior Molly Black is holding out hope that her current internship with BrownLink Media will lead to a class-action lawsuit, sources confirmed on Jan. 9. "I spend 12- hour days here, six days a week, so I think I have a decent shot of leveraging this experience directly into a legal battle against the company," said Ms. Black, 21, adding that working through her legally mandated lunch hour would likely further increase her chances of staying on long-term as a plaintiff in a multiyear trial. "I think if I keep my nose to the grindstone like this, there's a pretty good chance I'll get a slice of a huge settlement. Hopefully I'll impress attorneys enough to make all this hard work worthwhile." Ms. Black added that if the class- action lawsuit didn't pan out, there was still an outside chance she'd be a good candidate for sexual harassment litigation. CANADA: Judge Set to Rule on RCMP Sexual Harassment Class Action ---------------------------------------------------------------- Colin Perkel, writing for The Canadian Press, reports that women who were sexually harassed as RCMP employees will soon receive letters letting them know they are eligible for compensation if, as expected, a judge certifies a class action against the police force. Lawyers for the plaintiffs and government told Federal Court on Jan. 10 that certification will allow a publicity blitz to reach the affected women and set the stage for final settlement of the lawsuit. Many victims are fragile and would find it difficult to pursue individual claims, lawyer Won Kim told Judge Ann Marie McDonald. "This is the only real way for the women to come forward," Mr. Kim said. Judge McDonald said she would rule "very shortly" on granting the requested order certifying the class. Among other things, the order would appoint former RCMP officers Janet Merlo and Linda Davidson as representative plaintiffs, and set a 60-day clock ticking on opting out of the class action. The estimated 14,000 to 17,000 victims would also have an opportunity to comment on the proposed settlement before it is put to the courts for final approval, likely in the spring. Claimants would then have six months to make a claim. Ms. Merlo, now of St. John's, N.L., was an RCMP constable from 1991 to 2010. She suffered many negative health affects, including depression and panic attacks, due to her mistreatment, court heard. She began her claim in British Columbia in 2012. Ms. Davidson, 58, now of Bracebridge, Ont., filed her suit in 2015 in Ontario. Starting in 1985, she became one of the few females to reach a commissioned officer's rank. She was an inspector when she took medical leave in 2009, suffering from anxiety, depression and other health issues as a result of the sexual and gender- orientation harassment she had faced from colleagues and superiors. Ms. Davidson retired in 2012, more than a decade earlier than she had planned, court heard. The proposed class action combines the two women's separate lawsuits. "The representative plaintiffs allege, on behalf of the class, that the defendant was negligent and violated their (charter) rights," the draft order put to Judge McDonald states. In May last year, the two sides reached a tentative agreement to compensate women who experienced workplace sexual harassment or gender-based discrimination while working for the RCMP as police officers or civilians from 1974 on. Details were announced in October, when Commissioner Bob Paulson apologized for having failed the women. The high profile announcement prompted a flurry of interest from RCMP members, many of them long retired, Mr. Kim told McDonald. "We have received hundreds of calls from women across the country," said Mr. Kim, who represents Ms. Davidson. The proposed settlement, which would be administered by retired Supreme Court of Canada justice Michel Bastarache, creates six categories of claimants. Those who suffered the most egregious abuse would be eligible for up to $220,000. I n some cases, family members of the RCMP employees would also be eligible for cash. The lawyers also asked Judge McDonald to approve their cut -- 15 per cent -- of the payout. The government has already agreed to pay them $12 million. A lawyer for the federal government, which is not opposing the certification, said on Jan. 9 that Ottawa has "conceded that there is prima facie a cause of action" but was otherwise making no admissions. In addition to providing compensation, the RCMP has also agreed to address systemic issues of gender-based harassment and discrimination. CANADA: Order to Produce Young Offender Records Appealed -------------------------------------------------------- Koskie Minsky LLP and Sutts, Strosberg LLP are bringing a motion to stay the order of Justice Perell of the Ontario Superior Court of Justice, in which the plaintiff, J.K., was ordered to produce his young offender records to the Crown. On December 22, 2016, Justice Perell of the Ontario Superior Court of Justice ordered J.K. to produce his young offender records to the Crown. Justice Perell ruled that records relating to J.K.'s crimes and incarceration, which took place while he was a minor, are relevant to his motion to certify the matter as a class proceeding. J.K.'s counsel, Koskie Minsky LLP and Sutts, Strosberg LLP, are appealing Justice Perell's decision and have brought a motion to stay Justice Perell's order pending the appeal. Kirk Baert, counsel for J.K., has said "J.K.'s records are protected by the Youth Criminal Justice Act for a reason: when children commit crimes, the punishment is not meant to last a lifetime. They are given a second chance, which includes maintaining the confidentiality surrounding their crimes and punishments". The J.K. v. HMQ class action involves allegations of Ontario's systemic over-reliance on the use of solitary confinement on minors in Ontario's Youth Justice Facilities. The Office of the Provincial Advocate for Children and Youth released a report in 2015 entitled "It's a Matter of Time" in which the details on the use of solitary confinement on children in Ontario are provided. The report advocates for greater safeguards and/or the complete eradication of the use of solitary confinement on children in Ontario. CARING FOR MONTANANS: Bid to Certify Class in "Budd" Suit Denied ---------------------------------------------------------------- The Hon. Sam E. Haddon entered an opinion and order in the lawsuits titled KEVIN BUDD, RAY LEE, MARTIN MANGAN, SHIRLEY MANGAN and KENNETH WALSH on behalf of themselves and all others similarly situated v. CARING FOR MONTANANS, INC., BLUE CROSS BLUE SHIELD of MONTANA, INC., HEALTH CARE SERVICES CORPORATION, INC., and JOHN DOES 3 through 20; and TYSON S. PALLISTER v. CARING FOR MONTANANS, INC., BLUE CROSS BLUE SHIELD of MONTANA, INC., HEALTH CARE SERVICES CORPORATION, INC., and JOHN DOES 3 through 20, Case Nos. CV-09-25-BU-SEH and CV-09-62-H-SEH (D. Mont.), denying the Plaintiffs' motion for class certification. The two settlement agreement definitions of "Class" cover any and all claims that were or could have been denied due to the contract exclusionary language, Judge Haddon said. "Under the Settlement Agreement affirmed by the Montana Supreme Court, all members of those classes have released all of their benefits due claims against CFM. Plaintiffs' proposed Class (b) cannot possibly contain anything other than previously released claims. Numerosity is thus zero. The requirement is clearly not met," Judge Haddon opined. The seven-year old action arises from CFM's (formerly known as Blue Cross Blue Shield of Montana, Inc.) denial of medical benefits to Plaintiffs on the basis of policy exclusionary language subsequently deemed invalid by the Montana Supreme Court in BCBSMT v. Montana State Auditor and Commissioner of Insurance. The exclusionary language essentially denied coverage if the insured was injured and the responsible party's automobile or premise liability insurance would apply. In an opinion entered on September 24, 2009, the State Auditor court found the exclusion to be invalid and did not comport with Montana law. A copy of the Opinion and Order is available at no charge at https://goo.gl/V48KS7 from Leagle.com. Plaintiff Kevin Budd is represented by: J. Breting Engel, Esq. Jory C. Ruggiero, Esq. WESTERN JUSTICE ASSOCIATES, PLLC 303 West Mendenhall Street, Suite 1 Bozeman, MT 59715 Telephone: (406) 587-1900 Facsimile: (406) 587-1901 E-mail: jory@westernjusticelaw.com - and - James G. Hunt, Esq. DIX, HUNT & McDONALD 310 Broadway Helena, MT 59601 Telephone: (406) 442-8552 Facsimile: (406) 495-1660 Defendant Caring for Montanans is represented by: Michael F. McMahon, Esq. Stefan T. Wall, Esq. MCMAHON, WALL & HUBLEY, PLLC P.O. Box 1713 Helena, MT 59624 Telephone: (406) 442-1054 E-mail: mike@mlfpllc.com stefan@mlfpllc.com CHANGE HEALTHCARE: Court Denies Pressman's Bid to Certify Class --------------------------------------------------------------- The Hon. William J. Zloch denied the Plaintiff's first amended motion for class certification filed in the lawsuit captioned PRESSMAN, INC. v. CHANGE HEALTHCARE HOLDINGS, INC., et al., Case No. 0:16-cv-62472-WJZ (S.D. Fla.). The Motion is also denied without prejudice with leave to refile at such time as the Plaintiff can substantiate such a motion with specific legal and factual support. In its Motion, the Plaintiff moved for entry of an order certifying a class comprised of "Each person that was sent one or more telephone facsimile messages (faxes) promoting an 'MFG Co-pay Card,' identifying 'BIN: 004682,' and indicating that fax opt-out requests could be submitted by fax to 888-261-0360 or by live call to 888-261-0361." The Motion does not contain any facts that would support certification of such a class, Judge Zloch stated. Rather, Judge Zloch opined, the Motion requests that the Court defer ruling until after Plaintiff "obtain[s] discovery regarding the class elements," at which time Plaintiff will "submit a brief and other evidence in support of this motion." "Plaintiff filed this Motion (DE l2) 'in order to avoid an attempt by Defendant(s) to moot Plaintiff's individual claims in this class action,'" Judge Zloch noted. "In other words, the Motion (DE 12) serves only as a 'placeholder' to placate concerns that Plaintiff's claims might be 'picked off,'" Judge Zloch said. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=2y180xBQ CHICKEN SHACK: Court Certifies TCPA Class in Compressor Suit ------------------------------------------------------------ The Hon. Paul D. Borman entered an opinion and order in the lawsuit entitled COMPRESSOR ENGINEERING CORPORATION v. CHARLES J. THOMAS, JR., Case No. 10-10059 (E.D. Mich.): (1) granting the Plaintiff's motion to certify a class defined as "All persons who were sent one or more faxes on November 6, 2005 advertising 'Chicken Shack' restaurant as offering 'Michigan's Best Chicken and Ribs,'" and appointing Jason Sommers, Esq., Philip Bock, Esq., and Tod Lewis, Esq., as class counsel; (2) granting the Plaintiff's motions for leave to file supplemental case authority; and (3) denying the Defendant's motion for leave to file a supplemental legal memorandum. On January 6, 2010, the Plaintiff filed the class action complaint under the Telephone Consumer Protection Act, as amended by the Junk Fax Prevention Act of 2005 against Defendants Chicken Shack, Inc., Chicken Shack Depot, Inc., and Charles Thomas, Jr. A copy of the Opinion and Order is available at no charge at https://goo.gl/tv7tE8 from Leagle.com. The Plaintiff is represented by: Brian J. Wanca, Esq. Ryan M. Kelly, Esq. ANDERSON + WANCA 3701 Algonquin Road, Suite 760 Rolling Meadows, IL 60008 Telephone: (847) 368-1500 Facsimile: (847) 368-1501 E-mail: bwanca@andersonwanca.com rkelly@andersonwanca.com - and - Christopher Phillip Taylor Tourek, Esq. Phillip A. Bock, Esq. Tod A. Lewis, Esq. BOCK, HATCH, LEWIS & OPPENHEIM, LLC 134 N. La Salle St., Suite 1000 Chicago, IL 60602 Telephone: (312) 658-5500 Facsimile: (312) 658-5555 E-mail: Christopher@classlawyers.com phil@classlawyers.com tod@classlawyers.com - and - Jason J. Thompson, Esq. SOMMERS SCHWARTZ, P.C. One Towne Square, Suite 1700 Southfield, MI 48076 Telephone: (248) 355-0300 E-mail: jthompson@sommerspc.com Defendant Charles J. Thomas, Jr., is represented by: Denise L. Mitcham, Esq. CONKLIN, BENHAM, P.C. 30700 Telegraph Rd., Suite 2580 Bingham Farms, MI 48025 Telephone: (248) 593-2450 E-mail: dmitcham@conklinbenham.com - and - Eric L. Samore, Esq. SMITHAMUNDSEN LLC 150 North Michigan Avenue, Suite 3300 Chicago, IL 60601 Telephone: (312) 894-3200 Facsimile: (312) 894-3210 E-mail: esamore@salawus.com CHIPOTLE: May Face Suit for Using Photo Without Permission ---------------------------------------------------------- Brenna Houck at Eater reports that burrito behemoth Chipotle is the target of yet another massive lawsuit. ABC 10 reports that a woman in Sacramento, California, has filed a lawsuit against the chain, alleging that the company used her image in its interior decorations and marketing without her permission. Leah Caldwell, who is representing herself, claims in the complaint that in 2006 she was dining at a Chipotle when a photographer Steve Adams was taking shots of the restaurant, according to Denver 7. Caldwell says she was asked to sign a release but declined. Then in December 2014, she noticed her photo inside a Chipotle in Orlando, Florida and at two restaurants around Sacramento in March 2015. In addition to using her image without her approval, Caldwell claims that Chipotle edited the photo to include an alcoholic beverage. She's now seeking $2,237,633,000 -- a number she bases on the company's presumed profits from the photo over a nine year period from 2006 to 2015 -- and has requested that additional profits from 2016 be added to that amount. Chipotle's policy is not to comment on pending legal action. Chipotle has become a big target for lawsuits. Chipotle settled out of court in September 2016 for an undisclosed amount with 100 people sickened during a series of massive foodborne illness outbreaks in 2015. Last year, the chain was also slapped with a racial discrimination lawsuit and at 10,000-person class action lawsuit alleging wage theft. CONVERGENT OUTSOURCING: "Nyby" Suit Settlement Gets Prelim. Nod --------------------------------------------------------------- The Hon. Esther Salas grants the Plaintiff's motion for preliminary approval of class action settlement and directs dissemination of class notice in the lawsuit captioned Erik Nyby, on behalf of himself and all others similarly situated v. Convergent Outsourcing, Inc., Case No. 2:15-cv-00886-ES-MAH (D.N.J.). The Court conditionally certifies the action as a class action for settlement purposes. The "Settlement Class" is defined as: All persons sent a collections notice from Convergent between February 5, 2014 through the date of entry of this Preliminary Approval Order that sought to collect on a time-barred debt that was handled by Convergent for Galaxy Asset Purchasing, LLC. Judge Salas appoints (i) the Plaintiff as the Class Representative, (ii) the Plaintiff's counsel as Class Counsel and (iii) Heffler Claims Group as the Claims Administrator. A final fairness hearing will be held on April 6, 2017, at 1:00 p.m., to review and consider final approval of the settlement agreement, any applications for attorneys' fees or costs, any applications for incentive awards and any objections to the settlement and the validity of requests for exclusion. To receive a portion of the cash payment under the settlement, the Settlement Class members must complete, return to the settlement administrator, and postmark a claim form by March 17, 2017. The Settlement Class members will have until March 17, 2017, to exclude themselves from the proposed settlement. To be effective, an objection must be filed with the Court and served on counsel for the parties by March 17, 2017. The Court also directs the Parties to abide by these scheduled dates: -- The parties will file and serve papers in support of final approval of the settlement, including any responses to proper and timely objections filed thereto, by March 23, 2017; and -- The Plaintiffs' counsel will file any applications for attorneys' fees, costs and litigation expenses, or incentive awards to the Plaintiff as provided for in the Settlement Agreement, by March 3, 2017. The Court enters a Preliminary Injunction barring and enjoining the Plaintiff and all Settlement Class Members, to the extent permissible by existing law, from bringing, filing, commencing, prosecuting (or further prosecuting), maintaining, intervening in, participating in, or receiving any benefits from any other lawsuit, arbitration or administrative, regulatory or other proceeding in law or equity that asserts, arises from, concerns, or is in any way related to the Released Claims identified in the Settlement Agreement, until such time as the Court has ruled on the fairness of the settlement terms following the Fairness Hearing. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=QzokHGoP CRAVE RESTAURANT: Class of Servers Certified in "Ullett" Suit ------------------------------------------------------------- The Hon. Michael R. Barrett denied the Defendant's motion for partial judgment on the pleadings in the lawsuit titled JULIE ULLETT, et al. v. CRAVE RESTAURANT OHIO, LLC, Case No. 1:16-cv- 00272-MRB (S.D. Ohio). Judge Barrett granted in part the Plaintiffs' motion for conditional certification and court supervised notice to potential opt-in plaintiffs. This class, as revised, is conditionally certified: All individuals employed by Defendant or their predecessors or successors in the state of Ohio as servers, waiters, waitresses, bartenders and other tipped employees in other similar job positions at anytime from January 28, 2013 through and including the present and until the final resolution of the case, and who have not been paid the statutory minimum wage for all regular hours worked. Julie Ullett and Sarah Russell have filed a complaint on behalf of themselves and others similarly situated against Crave, seeking unpaid wages under the Fair Labor Standards Act, the Ohio Constitution, the Ohio Minimum Wage Standards Act and the Ohio Prompt Pay Act. The Plaintiffs are current or former employees of CRAVE -- American Kitchen & Sushi Bar, a restaurant located in downtown Cincinnati, in Hamilton County, Ohio. The Plaintiffs worked as servers or bartenders at Crave. Upon review and approval of the proposed notice, the Court orders Crave to provide the Plaintiffs' counsel with the names, last known addresses, e-mail addresses and telephone numbers of the putative class. The Court also rules that a text message may be sent via cell phone to any putative class member whose notice through the U.S. Mail comes back undeliverable. A copy of the Opinion and Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=XEHV6029 DARDEN RESTAURANTS: Averts Class Action Over Unpaid Vacation Time ----------------------------------------------------------------- Scott Holland, writing for Cook County Record, reports that the parent company of Olive Garden and Red Lobster and other chain restaurant brands has won a legal victory after a federal appeals panel refused to certify a class action over unpaid vacation time, saying the restaurant group's change to its "anniversary pay" policies shouldn't subject it to a class action lawsuit. Illinois residents Demiko McCaster and Jennifer Clark worked for Darden Restaurants intermittently from 2004 to 2012. After quitting, they filed a class action complaint in federal court in Chicago. The lawsuit centered on Darden's practice of awarding "anniversary payments" to employees on the anniversary of their initial hire date. According to court documents, Darden made the payments to all employees until 2008, when it shifted its policy to include only full-time employees working at least 30 hours a week. Eligibility decisions rested with individual restaurant managers. Mr. McCaster alleged Darden owed him 12 hours of vacation pay when he left his job at Red Lobster. Ms. Clark said she got everything she was owed under the pre-2008 terms, but got no vacation pay when she left the company under the revised policy. While the company didn't officially classify the anniversary pay as vacation pay, court documents indicated the company used the anniversary payments to satisfy obligations imposed by Illinois state law, and would pay out prorated "anniversary pay" on the final paycheck of employee's who left the company, similar to paid vacation time. Chicago federal Judge Samuel Der-Yeghiayan declined to certify the class action, and then granted summary judgment in favor of Darden on Ms. Clark's individual complaint, prompting the plaintiffs to appeal to the U.S. Seventh Circuit Court of Appeals. Mr. McCaster has settled his claim with Darden, but in his deal reserved the right to appeal denial of class certification. Seventh Circuit Judge Diane Wood and Circuit Judges Michael Kanne and Diane Sykes heard arguments in the case Feb. 18 and issued a decision Jan. 5. The Seventh Circuit judges said Judge Der-Yeghiayan was right to reject Ms. Clark's argument that an employer must offer prorated vacation benefits to part-time employees if it does so for full- time workers. They said the law prevents only mandatory forfeiture of accrued vacation pay; it does not guarantee such benefits to part-time workers. Ms. Clark cited a 1986 Illinois Appellate Court opinion in Golden Bear Family Restaurants v. Murray, but the Seventh Circuit judges said that case differed from this one, as the Golden Bear case dealt with a restaurant chain which had instituted a policy linking the payment of prorated earned vacation time to being employed on an "arbitrary date." In this case, the judges said, Darden has not failed to pay anyone benefits owed under its employee contract. The judges said Judge Der-Yeghiayan was right to refuse to certify the classes, agreeing with the lower court judge that the proposed class of employees -- including anyone who worked at Darden restaurants since 2003 and "who did not receive all earned vacation pay benefits" -- fit the definition of a so-called "failsafe class." In such a legal maneuver, plaintiffs can be included in classes only if they have a valid claim. This essentially would leave defendants unable to win, as plaintiffs removed from the class cannot be precluded. In response, the plaintiffs had argued the court could have adjusted the putative class description to exclude the problematic clause and allowed certification. But the judges noted Judge Der-Yeghiayan also deemed the claim failed to actually identify "any unlawful conduct on Darden's part that spans the entire class and caused all class members to suffer the same injury." Ultimately, the judges noted, there is no allegation Darden has corporate policies that violate state law. If some employees' pay was not handled properly, that conduct would constitute a violation, but it would not jeopardize the entire company policy. Mr. McCaster and Ms. Clark were represented in the action by attorneys with the firms of Werman Salas P.C. and the Law Office of Jamie Golden Sypulski, of Chicago. Darden Restaurants was represented by the firm of Seyfarth Shaw, of Chicago. DARK STAR: Rosas Moves for Certification of Field Workers Class --------------------------------------------------------------- The Plaintiff in the lawsuit captioned MATTHEW ROSAS, Individually and on behalf of all others similarly situated v. DARK STAR PRODUCTION TESTING, INC. D/B/A LIBERTY PRODUCTION TESTING, INC. AND SHELDON KASPER, Case No. 2:16-cv-00140 (S.D. Tex.), asks the Court to conditionally certify a class of: "All Current and Former Field Employees Who Worked for Dark Star Production Testing, Inc. d/b/a Liberty Production Testing, Inc. and Sheldon Kasper, At Any Time During the Past Three Years and Were Paid a Day Rate and No Overtime." Matthew Rosas, individually and on behalf of all opt-in plaintiffs and other similarly situated current and former employees of the Defendants filed the proposed collective action lawsuit pursuant to the Fair Labor Standards Act to recover alleged unpaid overtime wages, liquidated damages, attorneys' fees, and costs owed to current and former Day Rate Workers, who worked for the Defendants over the past three years. Mr. Rosas also asks the Court to: (1) order that a judicially approved notice be sent to all Putative Class Members by mail and e-mail; (2) approve the form and content of the Plaintiff's proposed judicial notice and reminder notice; (3) order the Defendants to produce to the Plaintiffs' counsel the name, last known address, phone number, e-mail address and dates of employment for each of the Putative Class Members in a usable electronic format; and (4) authorize a 60-day notice period for the Putative Class Members to join this case. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=TOYSmQ7K The Plaintiff is represented by: Clif Alexander, Esq. Austin W. Anderson, Esq. Lauren E. Braddy, Esq. ANDERSON2X, PLLC 819 N. Upper Broadway Corpus Christi, TX 78401 Telephone: (361) 452-1279 Facsimile: (361) 452-1284 E-mail: clif@a2xlaw.com austin@a2xlaw.com lauren@a2xlaw.com DEUTSCHE BANK: German Banks Face Suit for Collusion --------------------------------------------------- Handelsblatt Global reports that the law firm that represented diesel owners in the Volkswagen emissions scandal is now going after Germany's banking sector. The U.S. law firm Hausfeld is threatening to sue Germany's community-run savings banks as well as industry giants such as Deutsche Bank for allegedly colluding to hike the charges that merchants pay for debit card transactions. "Well-known customers have come to us," Christopher Rother, Hausfeld's representative in Germany, told Handelsblatt. "Our clients are seeking a solution outside of court." Hausfeld declined to provide specific names. According to the weekly Bild am Sonntag, which first reported the story, Hausfeld's clients include major retailers and gas companies. Until 2014, German banks charged merchants a uniform fee of 0.3 percent or at least 8 cents for every debit card transaction. Gas stations paid a reduced a fee. The banking sector abandoned the uniform fee after Germany's Federal Cartel Office criticized the practice as anti-competitive. Since 2014, banks and merchants have negotiated transaction fees on an individual basis. This has led to a 40 percent drop in fees, according to the Federal Cartel Office. The National Association of Cooperative Banks has dismissed Hausfeld's allegations of collusion. The association, which represents Germany's community-run banks, claims the uniform fee was approved by the Federal Cartel Office, which never found a violation of competition rules. Hausfeld was at the forefront of the class-action lawsuits in the United States against Volkswagen for deceiving customers about emissions values. Volkswagen agreed to a $14.7-billion (EUR14- billion) settlement over the summer. The U.S. law firm is now trying to force Volkswagen to reach a similar settlement with customers in Europe. DEVON ENERGY: Sued for Underpaying Natural Gas Royalties -------------------------------------------------------- Max B. Baker, writing for Star-Telegram, reports that Devon Energy is being sued for allegedly using sham transactions to underpay thousands of property owners in North Texas millions of dollars in royalties from natural gas processed through a Bridgeport plant. The Devon case echoes accusations brought against Chesapeake Energy in Texas courts that it sold natural gas from its Barnett Shale wells to an affiliate and pocketed the profits when it was sold on the open market. Chesapeake eventually agreed to a $51 million settlement last year. U.S. District Judge Ed Kinkeade in Dallas on Jan. 5 granted class- action certification to a lawsuit brought by four individuals with leases in Denton County. By certifying the class, Judge Kinkeade decided that they can represent the interests of thousands of landowners because of the common legal issues. "The court recognized that Devon owed a common duty to each of the several thousand members of the class and there is a formula to effectively determine damages for each class member," said David Drez -- david.drez@wickphillips.com -- a Fort Worth attorney. Devon, located in Oklahoma City, has denied the allegations in court documents. John Porretto, a spokesman for the company, said that Devon plans to appeal Judge Kinkeade's decision to the Fifth Circuit Court of Appeals. Devon is a major player in the Barnett Shale, having acquired Mitchell Energy, which was credited with launching the drilling boom in the Barnett. Since 2002, Devon says it has drilled more than 5,000 wells in the Barnett Shale. In their lawsuit, the landowners allege Devon Energy's production arm sold the natural gas at a low well head price to an affiliate, Devon Gas Services, which then processed the gas through its Bridgeport processing plant and deducted an "unreasonable and lucrative 17.5 percent processing fee" from the royalty checks. "Devon calculates the royalties it pays to Plaintiffs and Class members based on the artificial 'price' it manufactured as part of its sham transactions with (Devon Gas Services) rather than the (higher price)" it receives from unaffiliated third parties, which includes a profit, a court document filed in 2014 states. Further, the lawsuit states, once the gas left the plant, Devon and its affiliates sold the residue gas to third parties for a profit but didn't pass those profits on to the royalty owners, court records show. The lawsuit covers the sale of raw natural gas from Jan. 1, 2008, to Feb. 28, 2014. This is the time period that Devon owned the Bridgeport plant, which is now owned by Enlink Midstream Operating. The parties tried to settle their differences in March before a federal magistrate, but were unable to reach an agreement, court records show. Judge Kinkeade granted the case class-action status on Jan. 6 after denying it almost a year ago, and was persuaded to reverse his earlier ruling after hearing additional evidence. Devon does not contest that the class potentially contains more then several thousand plaintiffs. Devon argued against the class action, saying that individual leases cannot generate common answers. It also has contended that some of the lease forms contain language which allows it to modify how the natural gas is sent to market, court records show. But Judge Kinkeade ruled that the class was limited to the use of nine standard lease forms, and that the plaintiffs "provided classwide evidence" to support their allegations that Devon "failed to diligently market the gas and obtain a reasonable price" for the class. "Texas law implies a duty to market gas in good faith as a reasonably prudent operator would under the same or similar circumstances in every proceeds lease," the judge wrote. "The existence of the implied duty to market in all nine class lease forms is essential to the common questions" on which the claims are based. Judge Kinkeade wrote that the court "concludes that resolution of these claims on a classwide basis is not only manageable, but is also the most efficient method" for deciding the dispute. Unlike the Devon class-action lawsuit, the cases against Chesapeake Energy, mostly filed by Fort Worth attorney Dan McDonald, were handled individually but granted multi-district litigation status for pretrial issues like evidence and testimony. Mr. McDonald's 400 lawsuits covered about 13,000 plaintiffs. In his lawsuits, Mr. McDonald alleged Chesapeake deducted higher- than-necessary post-production costs from royalty checks. He contended that the company used sham sales to affiliates to transport and market the natural gas to increase what it earned. In its defense, Chesapeake said it did what was allowed within the terms of the leases. It argued that the weighted average sale price paid to landowners was fair and it denied using "fraudulent transactions." Besides Mr. Drez, who works at Wick Phillips Gould & Martin, the other law firms involved in the Devon case include the Seidel Law Firm in Austin, Mattingly & Roselius in Oklahoma City and Kessler Topaz Meltzer & Check near Philadelphia. DL BUILDERS: Valdovinos Moves for Class Certification Under FLSA ---------------------------------------------------------------- The Plaintiffs move the Court for an order certifying the first cause of action of the complaint for damages on file in the matter entitled SEBASTIAN VALDOVINOS; JOSE CARRILLO; ABELINO SOLARIO, and on behalf of themselves and those similarly situated individuals v. DL BUILDERS, INC.; DAVID HALVORSEN, Case No. 5:15-cv-04256-NC (N.D. Cal.), as a collective class action under the Fair Labor Standards Act and for an order providing production of class information and notice to the potential class members. The Plaintiffs ask the Court to conditionally certify a proposed class of non-exempt non-office hourly workers at DL Builders, Inc., and approve the Opt-In Notice to the potential class members, set a date of 75 days from service of the Opt-In Notice for potential class members to opt-in, and order that the Defendants provide to the Plaintiffs' counsel a computer-readable data file containing the names, addresses, e-mail addresses and telephone numbers of potential opt-in members. The case before the court involves laborers working for the private employer, DL Builders, in the home and apartment remodeling industry. The Plaintiffs are non-exempt employees under the FLSA. The First Cause of Action alleges overtime violations of the FLSA for alleged failure to pay the Plaintiffs for overtime work performed in excess of 40 hours per week. The Court will commence a hearing on February 15, 2017, at 1:00 p.m., to consider the Motion. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=OrMLGiYj The Plaintiffs are represented by: Robert David Baker, Esq. ROBERT DAVID BAKER, INC. 80 South White Road San Jose, CA 95127 Telephone: (408) 251-3400 Facsimile: (408) 251-3401 E-mail: rbaker@rdblaw.net DOLE FOODS: 9th Cir. Revives "All Natural" Label Class Action ------------------------------------------------------------- Quinn Emanuel Urquhart & Sullivan, LLP, in an article for JDSupra, reports that in an unpublished decision that is significant for both shoppers and consumer food companies, the Ninth Circuit recently reversed a district court's ruling that the label "All Natural Fruit" is not likely to deceive customers. The court found that a trier of fact could conclude that Dole Foods Co. Inc.'s "description of its products as 'All Natural Fruit' is misleading to a reasonable consumer." Brazil v. Dole Packaged Foods, Inc., Case No. 14-17480, Dkt. No. 51 (9th Cir. Sept. 30, 2016) ("Memorandum") at 4. The Court also affirmed the district court's limit on recovery to the premium paid under the misunderstanding that the fruit was actually "all natural" and decertification of the class pursuing damages because the plaintiff did not show how the premium could be calculated with proof common to the class. Id. at 6-8. The case was remanded to allow the plaintiff to move forward on behalf of an injunctive relief class and his remaining individual claims. Id. at 8. Other courts have watched the Dole case closely and several lawsuits regarding "natural" label claims were stayed pending the Ninth Circuit's decision. In the Dole case, the plaintiff and class representative Chad Brazil alleges that Dole's "All Natural Fruit" labels are deceptive because the packaged fruits they describe contain synthetic citric and ascorbic acid. Dole moved for summary judgment on the merits of Brazil's claims under California's Unfair Competition Law (UCL), (Cal. Bus. & Prof. Code Secs 17200-17210), the California False Advertising Law (FAL) (Bus. & Prof. Code Secs. 17500-17509), and the California Consumer Legal Remedies Act (CLRA) (Cal. Civ. Code Secs. 1750-1784) on the grounds that there was no evidence that reasonable consumers likely would have been misled by Dole's "All Natural Fruit" label. The claims under each of these statutes are evaluated from the perspective of a reasonable consumer, meaning "the ordinary consumer acting reasonably under the circumstances." Colgan v. Leatherman Tool Grp., 38 Cal. Rptr. 3d 36, 48 (Cal. Ct. App. 2006). To succeed on his claims, Brazil needs to show that Dole's "All Natural Fruit" labels would probably have misled "a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances." Lavie v. Proctor & Gamble Co., 129 Cal. Rptr. 2d 486, 495 (Cal. Ct. App. 2003). The FDA has not promulgated a formal definition of the word "natural" in relation to packaged food, but it has stated its policy that the use of the term "natural" means "that nothing artificial or synthetic (including all color additives regardless of source) has been included in, or has been added to, a food that would not normally be expected to be in the food." Food & Drug Admin., Food Labeling: Nutrient Content Claims, General Principles, Petitions, Definition of Terms; Definitions of Nutrient Content Claims for the Fat, Fatty Acid, and Cholesterol Content of Food ("FDA Policy Statement"), 58 Fed. Reg. 2303, 2407 (Jan. 6, 1993); see also Brazil v. Dole Packaged Foods, Inc., Case No. 5:12-cv-01831-LHK, Dkt. No. 240 (C.D. Cal. Dec. 8, 2014) ("Order Granting Defendant's Motion for Summary Judgment") at 7-8. To prove his claim that a reasonable consumer would be misled by the label, Brazil relied on his own testimony that he was deceived by the label. U.S. District Judge Lucy H. Koh found this evidence insufficient as a matter of "binding Ninth Circuit precedent" under Clemens v. DaimlerChrysler Corp., 534 F.3d 1017 (9th Cir. 2008), to demonstrate that it is probable that a significant portion of the consuming public could be mislead by the label and granted summary judgment in Dole's favor. Order Granting Defendant's Motion for Summary Judgment at 8-9. In Clemens, the Ninth Circuit held that "a few isolated examples of actual deception are insufficient" to survive summary judgment. 534 F.3d at 1026. The district court also found unavailing the FDA's informal definition of "natural" because Brazil offered no evidence besides a "conclusory statement" that citric acid and ascorbic acid "would not normally be expected to be in" the products at issue. FDA Policy Statement, 58 Fed. Reg. at 2407; see also Order Granting Defendant's Motion for Summary Judgment at 9. Brazil appealed this dismissal. A Ninth Circuit panel found Brazil's evidence--the label itself, his own testimony, Dole's consumer surveys prepared for litigation, and the FDA's informal definition of "natural" including recent FDA warning letters--when taken together, "could allow a trier of fact to conclude that Dole's description of its products as 'All Natural Fruit' is misleading to a reasonable consumer" and that a trier of fact could also "find that the synthetic citric acid and ascorbic acids in Dole's products were not 'natural.'" Memorandum at 3-4. The Ninth Circuit did not discuss the Clemens case on which the district court relied. Two cases similar to Dole are also currently pending before the Ninth Circuit. In Jones v. ConAgra Foods, Inc., the Ninth Circuit is considering whether self-identified class members who do not have a receipt or other objective proof of their membership in the class are sufficient to fulfill the ascertainability requirement of Federal Rule of Civil Procedure 23. Case No. 14-16327, Dkt. No. 21 (9th Cir. Nov. 21, 2014, filed July 14, 2014) (Opening Brief). In Jones, plaintiffs filed a class action alleging certain ConAgra products were falsely advertised as "100% Natural" or "Free from artificial ingredients & preservatives." Id. at 5-7. Acknowledging a split in California authority, the district court denied certification of the proposed classes, in part on the grounds that they were not ascertainable based only on class member affidavits. Id. at 16-17. One of the plaintiffs appealed the district court's denial of one of the classes. Id. at 4-5. In Kosta v. Del Monte Foods Inc., the plaintiffs allege that Del Monte's labels misled them to falsely believe Del Monte's tomato products contained certain nutrients and that certain fruit products were fresh. Case No. 15-16974, Dkt. No. 8 (9th Cir. Feb. 10, 2016, filed Oct. 2, 2015) (Opening Brief). Plaintiffs appealed the district court's denial of class certification on the grounds that variations in the labels meant the class members were not determinable. See id. at 15-18. Several significant cases in California have been stayed pending the outcome of Dole, Jones, and Kosta. These include a proposed class action by shoppers against Costco Wholesale Corp. over allegedly mislabeled "Kirkland Signature" brand foods. See Thomas v. Costco Wholesale Corp., Case No. 5:12-cv-02908 (N.D. Cal. filed June 5, 2012). In its order granting the stay in Thomas, the district court explained that the Ninth Circuit's decisions would provide "substantial guidance on issues material to the class certification issues in the instant case," and the "summary judgment issue from Brazil -- about whether label statements such as 'all natural' can mislead a reasonable consumer -- will provide guidance on arguments in this case." Id., Dkt. No. 115 at 5. In Park v. Welch Foods, Inc., a class action alleging deception by "no sugar added" labels on juices and jams, the district court stayed a decision on class certification to avoid "wasted effort if the Ninth Circuit's rulings change the requirements for class certification, standing, and damages in food labeling class actions." Case No. 3:12-cv-06449, Dkt. No. 77 at 3 (N.D. Cal. Oct. 22, 2015, filed Dec. 20, 2012). These suits highlight the tension between the increased demand for products perceived to be healthier and transparency in food production, on the one hand, and the lack of standard definitions or presence of inconsistent definitions for the "healthier" characteristics, on the other hand. While Dole's somewhat relaxed evidentiary standard for proving a reasonable consumer would probably be misled may encourage consumers to bring lawsuits over food labels, the Ninth Circuit's decisions regarding class certification in the two cases still pending before it, Jones and Kosta, will likely have a greater effect on plaintiffs' and their counsels' willingness to bring more lawsuits like Dole. DONALD J. TRUMP: Plaintiff's Firm to Withdraw Spam Text Case ------------------------------------------------------------ Amanda Bronstad, writing for The National Law Journal, reports that one of the lead plaintiffs firms that sued President-elect Donald Trump's campaign over unsolicited text messages has asked to withdraw from the class action, saying a client "has broken off all communication" and "is refusing to participate in the further prosecution of this case." Joseph Siprut -- jsiprut@siprut.com -- managing partner of Chicago's Siprut PC, said his firm could not reach his client, Joshua Thorne, despite "multiple and repeated" emails and phone calls, according to a motion filed on Jan. 9. Mr. Thorne is one of two named plaintiffs in the class action, which alleges that Donald J. Trump for President Inc. sent unsolicited text messages to thousands of cellphone numbers using an automatic telephone dialing system in violation of the U.S. Telephone Consumer Protection Act (TCPA). Mr. Siprut has asked U.S. District Judge John Zee of the Northern District of Illinois to take up his motion on Jan. 17. Mr. Siprut, who brought the motion on behalf of himself and two other lawyers at his firm, partner Richard Miller and attorney Ke Liu, did not respond to a request for comment. The campaign's lawyer, Martin Jaszczuk, has sought dismissal on the ground that the TCPA claims violate free speech under the First Amendment and the 14th Amendment's equal protection clause. In November, the U.S. Department of Justice declined the campaign's request to intervene in the case. Judge Zee sought additional briefing on the campaign's defense arguments, the first of which was due on Jan. 10. Phillip Bock -- phil@classlawyers.com -- of Chicago's Bock, Hatch, Lewis & Oppenheim, the other co-lead counsel who represents the remaining lead plaintiff, David Roberts, did not respond to a request for comment. ENDO PHARMACEUTICALS: June 9 Settlement Approval Hearing Set ------------------------------------------------------------ If You Purchased and/or Paid for Multi-Vitamin with Fluoride Chewable Tablets You Could Get Money from a Proposed Class Action Settlement A Settlement has been reached in a class action lawsuit involving Multi-Vitamin with Fluoride Chewable Tablets made by Endo Pharmaceuticals, Inc., and its subsidiaries (the "Chewable Tablets"). The lawsuit claims that the labels and packaging for the Chewable Tablets misrepresented the amount of fluoride contained in them on and after October 31, 2007. Defendants deny these allegations. WHO IS INCLUDED? All persons and entities who paid for Multi-Vitamin with Fluoride Tablets between October 31, 2007, and December 31, 2015, excluding (a) government entities who were parties to the settlement in United States v. Vintage Pharmaceuticals, LLC, et al., Case No. 13 civ. 1506 (DLC), (b) Defendants and their officers, directors, agents and employees, and (c) all persons and entities that acquired Multi-Vitamin with Fluoride Tablets for sale to others (the "Class"). WHAT ARE THE SETTLEMENT TERMS? The Defendants agree to establish a Settlement Fund of $15.5 million. Payments to eligible Class members will be based on the amount each paid for the Chewable Tablets and the total dollar amount of valid claims submitted. Each Class member will receive their pro rata share of the Settlement Fund not to exceed 100% of their individual expenditures. More details are available at www.fluoridetabletssettlement.com or by calling 1-800-983-6133. HOW TO GET A PAYMENT? You should submit a Claim Form to ensure that the Claims Administrator is aware of your purchases. The Claim Form is available at www.fluoridetabletssettlement.com or by calling 1- 800-983-6133. The deadline to submit a Claim Form is April 17, 2017. Nonetheless, if the Claims Administrator is able to obtain proof of your purchases of the Chewable Tablets by other means and you are a natural person, you will receive a payment even if you do not submit a Claim Form. WHO REPRESENTS THE SETTLEMENT CLASS? Class counsel are the law firms of Buckner + Miles, 3350 Mary Street, Miami, Florida 33133 and McCabe Rabin PA, Centurion Tower, 1601 Forum Pl. #505, West Palm Beach, Florida 33401. These attorneys will represent you as part of the Class unless you choose to hire your own attorney. You have the right to hire your own attorney at your own expense. Class counsel represent the Class on a contingency basis and will only receive attorneys' fees and reimbursement of their expenses if the Settlement is approved by the Court, at which time the Court may approve Settlement Class counsel's request for reimbursement of costs and expenses and an attorneys' fee award of up to 30%. YOUR OTHER RIGHTS? Members of the Class may request exclusion from the Class no later than April 17, 2017. You may also object to the Settlement by April 17, 2017. If you request exclusion, you may not object. Please refer to www.fluoridetabletssettlement.com. The Court will hold a hearing on June 9, 2017, to consider whether to approve the Settlement and a request for attorneys' fees up to 30% of the Settlement Fund, reimbursement of costs, and a service award for the Class Representative of up to $10,000. You can appear at the hearing, but you do not have to. You can hire your own attorney, at your own expense, to appear or speak for you at the hearing. Please check www.fluoridetabletssettlement.com to confirm the hearing date as it approaches as that date may change. FOR MORE INFORMATION AND A CLAIM FORM Visit: www.fluoridetabletssettlement.com or Call 1-800-983-6133 EXCEL STAFFING: Ferebee Moves for Certification of Nurses Class --------------------------------------------------------------- The Plaintiff in the lawsuit titled TYRONN FEREBEE on Behalf of Himself and on Behalf of All Others Similarly Situated v. EXCEL STAFFING SERVICE, INC., Case No. 2:16-cv-00008-BO (E.D.N.C.), asks the Court to grant his motion for conditional certification and facilitate a Court-approved notice of the lawsuit to all nurses. Pursuant to the Fair Labor Standards Act, Mr. Ferebee moves to facilitate Court approved notice of the lawsuit to all current and former nurses of Defendants Excel Staffing Service, Inc., Contractors & Consultants, Inc., Excel Staffing Professional Nursing, Inc., David Tolin, and Frederick Tolin, who were misclassified as independent contractors in the United States between February 12, 2013 and the present. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=5YOXGCaG The Plaintiff is represented by: Don J. Foty, Esq. John Neuman, 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 JNeuman@kennedyhodges.com - and - Todd Ellis, Esq. LAWOFFICE OF TODD ELLIS, P.A. 7911Broad River Road, Suite 100 Irmo, SC 29063 Telephone: (803) 732-0123 Facsimile: (803) 732-0124 E-mail: todd@toddellislaw.com FALLS FESTIVAL: Law Firm Receives Response From Crush Victims ------------------------------------------------------------- Emily Woods, writing for The Age, reports that the law firm leading a class action law suit against the Falls Festival says it has had a "significant" response from victims of the Lorne crowd stampede on December 30. The claim comes as graphic photos have emerged of a 22-year-old woman who suffered two black eyes, and fractured her sacrum -- a bone at the base of the spine -- after she ended up "at the very bottom" of the pile during the crowd crush. "Maddy" told Triple J's Hack program "I just remember going, 'this is it, this is death. This is you dying.' And then I blacked out." "There still aren't any whites in my eyes -- it's just blood," Maddy said, almost two weeks after the stampede. Maddy was one of dozens of people caught in the crush in the Grand Theatre tent shortly after the band DMA's wrapped up its act. Festivalgoers were rushing from the tent to see London Grammar at a different stage shortly before 10pm, when some people lost their footing on the gravel floor. Nineteen people were hospitalised and 60 treated by paramedics in the wake of the stampede. Narrow exit points and poor scheduling between bands have been blamed for the incident. "I remember letting go of my friends hand when I fell," Maddy said. "I fell over the girls who had fallen down, and I kind of flipped and went on my back and started getting dragged along the ground. "People just started piling on top of me. I was still moving until it wasn't possible for me to move myself. "I don't know how many people were on top of me but I was at the very bottom. "I remember telling myself, 'go up for air, go up for air', but I couldn't move at all. It wasn't painful being crushed, it was more painful not being able to breathe. "I couldn't move any limbs and my head was to the side facing down. There were legs next to me and I remember biting someone to try and get them to pull me up." Maddy said her recovery could take up to three months, and she is using crutches to move around. She is unable to work at her casual retail job. Maddens Lawyers urged people affected by the incident to come forward and help form a potential class action lawsuit against the festival. On Jan. 11 class action principal Brendan Pendergast said at least 40 people had come forward, which meant the law firm was likely to pursue a class action. "There's been a significant response," Mr Pendergast said. "Approximately 40 people have registered with us." He said those who had been in contact had suffered broken bones, lost or damaged property, or suffered psychological trauma after witnessing the incident. "Almost every person reports that they were terrified . . . some are really struggling with it," he said. "The law requires there to be at least seven people to be affected. We're presently seeking conference and advice with senior council, and we'll have that advice within the next few days. "Our present view is that there is a cause of action and that we're likely to proceed with it." Early investigations had pointed to site design being at the heart of the late-night catastrophe, Mr Pendergast said. "Entrances and exits to the venue in question, barricades surrounding walkways, even the material on the walkways themselves . . . these were all conditions that were well outside the control of festival patrons," he said. Eleven days after the crush, Maddy told Triple J Hack, the festival was yet to offer her any compensation. But she said she was unsure if she would join any class action. "I still don't know what I'm going to do. I don't want to blame one thing, one person . . . But [the festival] does have duty of care. At the end of the day they do have a responsibility," she said. "I'm not angry. I'm just here, in my room, waiting. And I'll be here in my room for another three months." In response, the festival's organisers posted a statement on Facebook about 12am on Jan. 11 saying they were still trying to contact everyone involved in the stampede. "There is a process in place whereby we have been directly contacting patrons," the post said. "This process has been underway for some time and there have been a large number of people who have been contacted to date, including Maddy's mother. "We are still working through this process and are still contacting people. "We have asked those who we have contacted for information relating to their experience and involvement in the incident, so we can consider everything thoroughly and fairly." The festival organisers said investigations into the incident were ongoing, and "we are endeavouring to do this as quickly and as thoroughly as possible to be able to deal with all enquiries". "We want to ensure the correct protocol is being followed so that all involved are given the depth of consideration they need to give them the chance to get the best possible outcome. "We want to get this right, for the long term, so it is imperative that the correct procedures are followed." FIELDTURF: Faces Third Duraspine Fraud Class Action in N.J. ----------------------------------------------------------- Christopher Baxter and Matthew Stanmyre, writing for NJ.com, report that the owner of a New Jersey soccer facility claims in a new class-action lawsuit the leading U.S. maker of artificial sports fields, FieldTurf, repeatedly brushed off complaints about his failing field and told him conditions would improve over time. The complaint, filed on Jan. 10 in U.S. District Court for New Jersey, is the third proposed class-action to be brought by customers in the state against FieldTurf in response to an NJ Advance Media investigation that detailed potential fraud. The investigation found FieldTurf and its executives for years earned ballooning profits as sales of its popular turf, Duraspine, skyrocketed, all the while knowing fields were falling apart and would not live up to marketing and advertising claims. Despite warnings and candid internal discussions, FieldTurf officials kept selling Duraspine to cities, towns, school districts and private entities across the country, and never changed their sales pitches. The turf was phased out in 2012. In a statement, a FieldTurf spokesman said the company strongly disputed the allegations in the latest lawsuit and that its records show Duraspine was not installed at the facility, but rather another product, known as slit-film, was used. A company directory, however, does list the facility as having received Duraspine. "Additionally, this field was installed in 2010, is still in use, and had a five-year warranty -- which included a limitation on hours of usage," the statement said. "We are fully confident that when considered in full, the facts will show that customers in New Jersey were well-served by FieldTurf." Michael Critchley, an attorney for the soccer club's owner, said he believed the field was Duraspine, but said, regardless of the product, the field has fallen apart and the company has failed to make good on the promises it made. The latest lawsuit is the first to raise concerns about indoor fields. Richard Gentile, owner of New Jersey Stallions Soccer in Clifton, alleges in the lawsuit his 2010 field began to deteriorate soon after installation, but FieldTurf officials told him to groom the surface and that some fraying was normal. Mr. Gentile claims company officials told him to be patient and that conditions would improve over time. But, according to the lawsuit, the field continued to fall apart, and is now slated to be replaced this summer, after about six years of use. "It is time for FieldTurf to be held accountable for its intentional and egregious conduct," the lawsuit said. The lawsuit, based largely on NJ Advance Media's reporting, accuses FieldTurf of fraud, breach of warranty and unjust enrichment. In court testimony in 2014, Ken Gilman, FieldTurf's former executive director, said failures of indoor Duraspine fields were "common" and became such a big problem that sales of the product to indoor facilities were banned. Mr. Gilman said indoor Duraspine replacements included the field at 422 SportsPlex in Pottstown, Pa. The facility did not return a request for comment. Mr. Gilman did not testify on what caused the problem or when the ban was issued. After the ban, he said, FieldTurf sold a different type of turf, slit film, indoors. In the other two pending class-action lawsuits, filed by the borough of Carteret, N.J., and the Newark school system, FieldTurf officials have hired renowned attorney Theodore Wells Jr. to defend the company. Wells has represented Bank of America, Johnson & Johnson and Philip Morris, among other large corporations, in major class- action lawsuits. In sports circles, Wells is known for recent investigations on behalf of the National Football League, including his probe of the New England Patriots and quarterback Tom Brady over deflated footballs, which came to be known as Deflategate. In addition to the lawsuits, U.S. Sens. Cory Booker and Robert Menendez (both D-N.J.) have written to the Federal Trade Commission requesting a formal, national investigation into FieldTurf's sales practices. FREEDOM MORTGAGE: Court Tosses NJWPL Claims in "Atis" Class Suit ---------------------------------------------------------------- The Hon. Robert B. Kugler entered an opinion in the lawsuit captioned David ATIS, on behalf of himself and those similarly situated v. FREEDOM MORTGAGE CORPORATION, Case No. 15-3424 (RBK/JS) (D.N.J.): -- granting the Defendant's motion to dismiss the claims asserted under the New Jersey Wage and Payment Act; -- granting in part the Plaintiff's motion for class certification; and -- denying the Plaintiff's motion to seal. The matter comes before the Court on Plaintiff's complaint against the Defendant asserting violations of the Fair Labor Standards Act, New Jersey Wage and Hour Law, and New Jersey Wage and Payment Act. David Atis brings the action on behalf of himself and others similarly situated, alleging that the Defendant, an originator and servicer of mortgage loans, improperly denied overtime pay to employees in the position of Assistant Vice President of Sales. The Plaintiff's Motion to Seal does not address the factors in Rule 5.3(c)(3) with particularity, nor contain proposed findings of fact and conclusions of law, Judge Kugler said in his Opinion. Furthermore, Judge Kugler notes, the Plaintiff never even filed the materials to be sealed -- exhibits attached to its Motion for Class Certification. A copy of the Opinion is available at no charge at https://goo.gl/Rxzidn from Leagle.com. The Plaintiff is represented by: Joshua S. Boyette, Esq. Daniel Ari Horowitz, Esq. Richard Steven Swartz, Esq. SWARTZ SWIDLER LLC 1101 Kings Highway North, Suite 402 Cherry Hill, NJ 08034 Telephone: (856) 685-7420 Facsimile: (856) 685-7417 E-mail: jboyette@swartz-legal.com dhorowitz@swartz-legal.com rswartz@swartz-legal.com The Defendant is represented by: Daniel H. Aiken, Esq. David J. Woolf, Esq. Dennis Michael Mulgrew, Jr., Esq. DRINKER, BIDDLE & REATH, LLP One Logan Square 18th & Cherry Sts. Philadelphia, PA 19103 Telephone: (215) 988-2942 E-mail: daniel.aiken@dbr.com david.woolf@dbr.com dennis.mulgrew@dbr.com GC SERVICES: Dains Seeks Certification of Classes and Subclasses ---------------------------------------------------------------- Allen L. Dains asks the Court to enter an order determining that the lawsuit captioned ALLEN L. DAINS, on behalf of himself and all others similarly situated v. GC SERVICES, L.P., a Texas Limited Partnership; and, JOHN AND JANE DOES NUMBERS 1 THROUGH 25, Case No. 1:16-cv-01641-WCG (E.D. Wisc.), may proceed as a class action against GC Services, L.P. The Plaintiff seeks certification of two classes and two subclasses pursuant to the Fair Debt Collection Practices Act and the Texas Debt Collection Practices Act. The first class is defined as: (a) all persons with addresses in the State of Wisconsin (b) to whom GC Services mailed an initial written communication materially similar to the form attached as Exhibit A [to the Complaint]; (c) in an attempt to collect a debt; (d) which was not returned as undelivered by the United States Postal Service; (e) which stated, "because of interest, late charges and other charges that may be assessed by your creditor that vary from day to day, the amount due on the day you pay, may be greater" and the amount did not increase in the next collection letter; (f) and which was sent on or after December 12, 2014 and on or before January 2, 2017. The first subclass is defined as all persons meeting the definition of the first class except that they received Exhibit A on or after December 12, 2015 and on or before January 2, 2017. The second class is defined as: (a) all persons with addresses in the State of Wisconsin (b) to whom GC Services mailed a written collection letter materially similar to the form attached as Exhibits A, B, and C [to the Complaint]; (c) in an attempt to collect a debt; (d) which was not returned as undelivered by the United States Postal Service; (e) which letter stated, "because of interest, late charges and other charges that may be assessed by your creditor that vary from day to day, the amount due on the day you pay, may be greater" and the amount did not increase in the next collection letter; (f) and which letter was sent on or after December 12, 2014 and on or before January 2, 2017. The second subclass is defined as all persons meeting the definition of the first class except that they received Exhibits A, B, and C on or after December 12, 2015 and on or before January 2, 2017. The Plaintiff further asks that Stern Thomasson LLP and the Law Office of Edelman, Combs, Latturner & Goodwin, LLC be appointed counsel for the classes. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=f9MmwpHq The Plaintiff is represented by: Daniel A. Edelman, Esq. Francis R. Greene, Esq. EDELMAN, COMBS, LATTURNER & GOODWIN, LLC 20 South Clark Street, Suite 1500 Chicago, IL 60603 Telephone: (312) 917-4500 Facsimile: (312) 419-0379 E-mail: dedelman@edcombs.com fgreene@edcombs.com - and - Heather B. Jones, Esq. Philip D. Stern, Esq. Andrew T. Thomasson, Esq. STERN THOMASSON LLP 150 Morris Avenue, 2nd Floor Springfield, NJ 07081-1329 Telephone: (973) 379-7500 Facsimile: (973) 532-5868 E-mail: heather@sternthomasson.com philip@sternthomasson.com andrew@sternthomasson.com HARTWOOD RESERVE: Appeals Court Reverses "Allen" Subclass Cert. --------------------------------------------------------------- The District Court of Appeal of Florida, Fifth District, issued a per curiam opinion in the lawsuit titled HARTWOOD RESERVE HOMEOWNERS' ASSOCIATION, INC., Appellant v. GLENWORTH ALLEN, MICHELLE McKESEY-ALLEN, SENTRY MANAGEMENT, INC. AND LARSEN & ASSOCIATES, P.L., Appellees, Case No. 5D16-1193. "In sum, we affirm the order certifying the main or primary class, and we reverse that part of the order certifying the subclass. We remand with directions that the trial court enter an order decertifying the subclass," according to the Appellate Court's opinion. Palmer, Lambert, and Edwards, JJ., concur. Unlike for the main class, the Appellees failed to present evidence of the number of members in the subclass, the Judges stated. Appellant Hartwood Reserve Homeowners' Association, Inc., appeals a nonfinal order certifying a class action brought against it for violation of the Florida Deceptive and Unfair Trade Practices Act and for charging excessive interest and unauthorized fees against present and former owners of real property in the Hartwood Reserve subdivision. In its order, the trial court certified both a main class and a subclass, defining the former, in pertinent part, as: All Persons who are current owners of real property in Hartwood Reserve as well as all former owners of real property in Hartwood Reserve who sold, otherwise conveyed or suffered foreclosure of such real property within four years next preceding February 3, 2015, where such real property owners were signatories to the [Association] declaration and thus obtained membership in the [Association]. The proposed class is further defined as those persons who were served notice(s) of delinquency in paying the assessed monthly fee to the [Association] or permitting deviations from or violations of provisions in the rules and declarations governing Hartwood Reserve home owners through membership in the [Association]. The persons so noticed were further assessed interest charges exceeding 18% per annum, fees, penalties or other costs assessed purportedly due to the alleged delinquencies in making payments to the [Association] or its agents. The trial court defined the subclass, in pertinent part, as: All persons who were members of the [Association] who were alleged to be late or delinquent in the payment of their monthly assessments, and were charged interest of more than 18% per annum, fees and costs and/or attorney's fees and costs. A copy of the Opinion is available at no charge at https://goo.gl/qeZ48L from Leagle.com. Appellant HARTWOOD RESERVE HOMEOWNERS' ASSOCIATION, INC., is represented by: David C. Borucke, Esq. Christine Bredahl Gierke, Esq. COLE, SCOTT & KISSANE, P.A. 4301 West Boy Scout Blvd., Suite 400 Tampa, FL 33607 Telephone: (813) 864-9351 Facsimile: (813) 286-2900 E-mail: david.borucke@csklegal.com christina.gierke@csklegal.com Appellees Glenworth Allen and Michelle McKesey-Allen are represented by: Samuel A. Walker, Esq. Tee Persad, Esq. Herbert T. Schwartz, Esq. Alberto E. Lugo-Janer, Esq. CPLS, P.A. 201 East Pine Street, Suite 445 Orlando, FL 32801 Telephone: (407) 647-7887 Facsimile: (407) 647-5396 E-mail: swalker@cplspa.com attorneypersad@cplspa.com hschwartz@cplspa.com alugo-janer@cplspa.com HARMLESS HARVEST: Settles Coconut Water Labeling Class Action ------------------------------------------------------------- Jessica Karmasek, writing for Legal Newsline, reports that Harmless Harvest Inc. has agreed to pay nearly $1 million and change the labels on its coconut water products under a proposed class action lawsuit settlement. The plaintiffs in the class action filed an unopposed motion for preliminary settlement approval in the U.S. District Court for the Eastern District of New York Dec. 27. They said they believe the settlement is "fair, reasonable and adequate," and should be preliminarily approved by Judge Joan M. Azrack. The proposed settlement provides labeling changes and ongoing third-party monitoring of the accuracy of Harmless Harvest's product labels. In particular, the company has agreed to remove allegedly false and misleading statements of "100 percent Organic" and "Raw" from its products' packaging, and will engage an independent third- party consultant for a period of two years from the effective date of the settlement. The consultant will review the product labels for ongoing accuracy and provide reports to class counsel. The cost of the consulting fees will be borne by Harmless Harvest, according the proposed settlement's terms. Also, under the proposed settlement, the company has agreed to pay attorneys' fees in the amount of $575,000. That amount includes incentive awards to the named plaintiffs of $20,000 total. Harmless Harvest also has agreed to pay up to $350,000 in claims administration fees and notice costs. HEALTH RESOURCE: Brown Wins Bid for Conditional Certification ------------------------------------------------------------- The Clerk of the U.S. District Court for the Northern District of Illinois made a docket entry on January 4, 2017, in the case captioned Monique Brown v. Health Resource Solutions, Inc., et al., Case No. 1:16-cv-10667 (N.D. Ill.), relating to a hearing held before the Honorable Charles P. Kocoras. The minute entry states that: -- Plaintiffs' motion for leave to exceed page limit in the Plaintiffs' motion for conditional certification is granted; -- Plaintiffs' motion and memorandum in support of conditional certification as collective action and issuance of notice pursuant to 29 U.S.C. Section 216(b) is granted; and -- Motion hearings set for January 5, 2017, is stricken, no appearance is required. A copy of the Notification of Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=6xYFITpk HOME DEPOT: Can't Remove Tri-State Class Action to Federal Court ---------------------------------------------------------------- The Madison County Record reports that retailer Home Depot can't remove a Madison County class action to federal court because it entered the action as a counterclaim defendant, the Seventh Circuit ruled on Jan. 5. The federal appeals court held that under the national Class Action Fairness Act, only original defendants can remove actions to federal court. Justices affirmed Southern Illinois district Chief Judge Michael Reagan, who signed an order remanding the action to Madison County last September. Counterclaim plaintiffs Michael Bauer and Stacey Bauer claim the retailer tricked them into buying useless water treatment systems. Local lawyers Troy Walton, Micah Summers, Brian Kreisler and Sean Cronin represent the Bauers, along with George Granade of New York City. When the action began, it involved the Bauers as defendants and it didn't involve Home Depot at all. Tri-State Water Treatment sued the Bauers in Madison County small claims court in 2015, claiming they failed to pay for a system Tri-State installed at their house. The Bauers responded with a counterclaim against Tri-State, asserting a multi state class action for fraud. They amended the counterclaim last February, to add Home Depot as defendant. They also added Aquion Inc., doing business as Rainsoft. The class is defined as everyone who bought a system after defendants conducted a water test in their homes. Plaintiffs say the tests identified mineral content rather than contaminants. Home Depot removed the action to federal court last April, arguing that it deserved special status as an additional counterclaim defendant. In May, the Bauers moved to remand the action to Madison County. Reagan held a hearing in September, and ruled for the Bauers later that month. The Seventh Circuit accepted an appeal petition and heard argument on Dec. 1. They reached a decision quickly, finding the Class Action Fairness Act doesn't extend a right of removal to a party that wasn't an original defendant. Chief Judge Diane Wood wrote, "Home Depot argues that absurd results would arise if we were to hold that additional counterclaim defendants cannot remove actions under the Class Action Fairness Act. "It fears that doing so would reward gamesmanship, because lawyers would be able to use small claims litigation as springboards for counterclaim class actions that would be stuck in state court. "This, it predicts, would reintroduce the forum shopping the Class Act Fairness Act was designed to eliminate. "We are not convinced that this will come to pass." Judge Wood wrote that state courts have all the tools they need to manage abusive amendments to pleadings. She wrote that the Act selectively increased federal jurisdiction but "did not roll out the welcome mat for all multi state class actions." On Jan. 9, Reagan declared his previous order effective immediately. Stewart Haskins of Atlanta represents Home Depot, and Russell Scott of the Greensfelder firm in Belleville acts as local counsel. HYUNDAI MOTOR: Faces Class Action Over Defective "Smart Trunks" --------------------------------------------------------------- The Smart Trunk ("Smart Trunk"), which Hyundai first made available on its model-year 2015 vehicles, is a proximity- activated trunk lid which can be opened by standing directly behind the vehicle with the vehicle's key fob in one's hand, pocket, or purse. The key fob automatically sends a radio signal to the vehicle that tells it to open the trunk -- no buttons on the key fob need to be pressed. Hyundai promoted the Smart Trunk as a "hands-free" feature that automatically opens the trunk fully, or at least wide enough for a person to deposit bulky items into the trunk -- such as shopping bags, duffle bags, and sports equipment -- without having to put the items down or manually open the trunk lid. However, the class action lawsuit filed by a Pennsylvania resident alleges that Hyundai has sold and leased countless vehicles, including the plaintiff's 2015 Hyundai Sonata, equipped with defective Smart Trunks that never open more than a crack. Instead of automatically opening as advertised, the plaintiff alleges that they simply unlatch, requiring consumers to manually push open the trunk lid, thereby failing to provide the "hands-free" convenience the Smart Trunk is advertised to deliver. The complaint further states that Hyundai failed to inform plaintiff and class members that the Smart Trunk does not open as wide as depicted in advertisements and that it possesses a defect that, in many cases, prevents the trunk from opening to any appreciable or useful degree. The class action asserts that the Smart Trunk comes as a standard feature on the "2015 Sonata (Sport, Limited, and Sport 2.0T);1 2015 Azera (all trims); 2015 Genesis (all trims); 2016 Sonata (Limited, Sport 2.0T, and Limited 2.0T); 2016 Azera (all trims); 2016 Genesis (all trims); 2017 Elantra (Eco and Limited); and the 2017 Sonata (Limited and Limited 2.0T)." In addition, the Smart Trunk was an extra option costing between $950 and $1,900 on the Hyundai 2015 Sonata (Eco), 2016 Sonata (Sport), 2017 Sonata (Sport), and the 2017 Elantra (SE). The Hyundai class action suit, brought by the plaintiff on behalf of himself and all other purchasers and lessees of Hyundai vehicles equipped with Smart Trunks, charges the car company with breaching its express and implied warranty obligations because it allegedly failed to deliver conforming, non-defective Smart Trunks to consumers despite, in many cases, multiple repair attempts. In addition to breaching its express and implied warranties, Hyundai is alleged to have made misrepresentations and knowingly failed to disclose material facts about the Smart Trunks to consumers in violation of the California Unfair Competition Law, the California False Advertising Law, the California Consumer Legal Remedies Act, the Magnuson-Moss Warranty Act, and as a result was unjustly enriched by its conduct. The plaintiff is represented by Noah Axler and Marc Goldich of Axler Goldich LLC, Natalie Finkelman Bennett and James C. Shah of Shepherd Finkelman Miller & Shah LLP, and Robert P. Cocco of Robert P. Cocco, P.C. The Hyundai Smart Trunk Class Action Lawsuit is Riaubia v. Hyundai Motor America, Case No. 2:16-cv- 05150-CDJ, in the U.S. District Court for the Eastern District of Pennsylvania. WHAT SHOULD OWNERS KNOW ABOUT THE OPERATION OF THE AFFECTED HYUNDAI VEHICLES? Owners of the affected vehicles will have Smart Trunks which do not automatically open or do not open all the way without the use of hands or otherwise having to manually open the trunk. HOW CAN HYUNDAI OWNERS FIND MORE INFORMATION? Owners who have experienced any issues with their Smart Trunks or who have had to have their vehicles repeatedly serviced in an attempt to get the Smart Trunk to work properly should contact the attorneys at Axler Goldich to learn their legal rights by calling 866-207-2920, emailing Hyundai(at)axgolaw(dot)com, or filling out an intake form at http://www.axlergoldich.com. If you own a Hyundai vehicle, model year 2015 or newer, equipped with a "Smart Trunk," you may be eligible to join the class action. Call 866-207-2920 for more information. INOTEK PHARMA: March 7 Lead Plaintiff Motion Deadline Set --------------------------------------------------------- Bronstein, Gewirtz & Grossman, LLC on Jan. 10 notified investors that a class action lawsuit has been filed against Inotek Pharmaceuticals Corporation ("Inotek" or the "Company") (NASDAQ: ITEK) and certain of its officers, and is on behalf of a class consisting of all persons or entities who purchased Inotek securities July 23, 2015 and December 30, 2016, both dates inclusive (the "Class Period"). Such investors are advised to join this case by visiting the firm's site: http://www.bgandg.com/itek. This class action seeks to recover damages against Defendants for alleged violations of the federal securities laws under the Securities Exchange Act of 1934 (the "Exchange Act"). The Complaint alleges that on July 23, 2015, Inotek announced its positive End of Phase 2 meeting with the U.S. Food and Drug Administration and said that Inotek is in the "final preparation stages to commence its first Phase 3 trial in 4Q and look forward to data in 2016." Inotek also announced a confident forecast of the Phase 3 trabodenoson trial, which caused its stock price to surge to $15.37 per share on July 23, 2015. Inotek's Form 10-K filing also implied that trabodenoson would be successful, stating that it upholds an impressive safety record compared to similar glaucoma treatments. Despite the positive announcements, per the Complaint, Inotek officials were aware that part of the clinical trial of trabodenoson would not achieve its intended goal of reducing intraocular pressure compared to the placebo. Later on January 3, 2017, Inotek exposed this information and stated that the first pivotal Phase 3 trial of trabodenoson to treat open- angle glaucoma or ocular hypertension failed, in comparison to the placebo, in its endpoint of superiority in the reduction of intraocular pressure. Following this news, Inotek's stock dropped about 70%. A class action lawsuit has already been filed. If you wish to review a copy of the Complaint you can visit the firm's site: http://www.bgandg.com/itekor you may contact Peretz Bronstein, Esq. or his Investor Relations Analyst, Yael Hurwitz of Bronstein, Gewirtz & Grossman, LLC at 212-697-6484. If you suffered a loss in Inotek you have until March 7, 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. Bronstein, Gewirtz & Grossman, LLC -- http://www.bgandg.com-- is a corporate litigation boutique. In addition to representing institutions and other investor plaintiffs in class action security litigation, the firm's expertise includes general corporate and commercial litigation, as well as securities arbitration. INSEEGO CORP: Monteverde & Associates Files Class Action -------------------------------------------------------- Monteverde & Associates PC on Jan. 10 disclosed that it has filed a class action lawsuit in the United States District Court for the Southern District of California, case no. 3:16-cv-03068-JAH-HLS, on behalf of shareholders of Inseego Corp. ("Inseego" or the "Company")(NASDQ: INSG) who held Inseego securities and have been harmed by Inseego's and its board of directors' (the "Board") alleged violations of Sections 14(a), and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") in connection with the sale sale to T.C.L. Industries Holdings (H.K.) Limited ("Purchaser Parent") and Jade Ocean Global Limited ("Purchaser," and together with Purchaser Parent, "Purchasers"), of all the shares Inseego owns in Novatel Wireless, Inc. ("NWI"). Under the terms of the agreement, Purchasers will acquire all of the issued and outstanding shares of common stock of NWI from Inseego for $50.0 million. The complaint alleges that this offer is inadequate and alleges that the definitive proxy statement (the "Proxy") provides materially incomplete and misleading information about the Company's financials and the transaction, in violation of Sections 14(a) and 20(a) of the Exchange Act. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from January 10, 2017. 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. If you wish to discuss this action, or have any questions concerning this notice or your rights or interests, please contact: Click here for more information: www.monteverdelaw.com/investigations. It is free and there is no cost or obligation to you. Monteverde & Associates PC -- http://www.monteverdelaw.com-- is a boutique class action securities and consumer litigation law firm committed to protecting shareholders and consumers from corporate wrongdoing. Monteverde & Associates PC lawyers have significant experience litigating Mergers & Acquisitions and Securities Class Actions, whereby they protect investors by recovering money and remedying corporate misconduct. If you own common stock in Inseego and wish to obtain additional information and protect your investments free of charge, please visit us at www.monteverdelaw.com/investigations or Juan E. Monteverde, Esq. either via e-mail at jmonteverde@monteverdelaw.com or by telephone at (212) 971-1341. JOHNSON & JOHNSON: Critics Condemn Talcum-Powder Lawsuits --------------------------------------------------------- Christina Suttles at Northern California Record reports that despite an outcry of legal watchdogs over the spread of questionable talcum-powder lawsuits, TheLawFirm.com is training a number of new paralegals, gearing up for what could be hundreds of lawsuits alleging a link between Johnson & Johnson's talcum powder and ovarian cancer in longtime users of the product. Johnson & Johnson has been named a defendant in more than 1,000 recent lawsuits nationwide, according to news.law.fordham.edu, alleging it deceived consumers by refusing to warn of the potentially carcinogenic properties of its Baby Powder and shower products, which millions of women use for personal-hygiene purposes. This spike in talc lawsuits is just one of many since 2009, when a South Dakota woman first sued the company alleging negligence and fraud after being diagnosed with ovarian cancer. Johnson & Johnson offered the plaintiff a $1.3 million settlement, but after she refused to sign a confidentiality agreement, no monetary damages were awarded, according to a March 2, 2016 article in the New York Post. Last February, a St. Louis jury did award $72 million in damages to the family of a woman who died from ovarian cancer following three decades of Johnson & Johnson talc-based powder use, according to www.stltoday.com. California tort-reform advocates consider this attempt at a class- action lawsuit acquisitive and unnecessary. "There's always a better way than the lawsuit route," Julie Griffiths, northern and central California's representative for Citizens Against Lawsuit Abuse, told the Northern California Record. "I'd be curious to know if they even bothered to take other method research to see if there really was a link to ovarian cancer." Maryann Marino, CALA's Southern California representative said she believes the lawsuit to be another means of lining lawyers' pockets, using online, radio and television advertisement to amass plaintiffs. "It's not surprising to see another personal injury firm jump on the talc class-action bandwagon and aggressively market these lawsuits to recruit more plaintiffs," Marino told the Northern California Record. "Personal-injury lawyers and lawsuit lead- generation firms are spending millions of dollars to scare people into lawsuits in hopes of a big payday for lawyers. Unfortunately, consumers are likely only seeing these ads and internet sites, which are intended to stir fear. What they aren't telling consumers is that the science is far from settled and high-profile talc cases have been dismissed for failing to provide enough evidence." Research is ongoing in producing a substantial link between the powder and ovarian cancer, but in its natural form, the mineral contains asbestos, a substance known to cause lung cancer when inhaled, although all talcum products used in homes have been asbestos-free since the 1970s, www.stltoday.com reported. The American Cancer Society suggests a small, but slight increased risk of cancer if the powder particles were to travel to the ovary. The powder is often used in a number of feminine-hygiene products and contraceptives. "These cases are clogging our court systems around the state and were trying to use the court system for means by which it was meant to be used -- for people who have actual grievances that need to be aired," Griffiths said. KRAFT FOODS: Judge Denies Motion to Stay Labeling Class Action -------------------------------------------------------------- Kelsey Stricker, Esq. -- kstricker@mofo.com -- of Morrison & Foerster LLP, in an article for JDSupra, reports that on December 6, 2016, United States District Judge John A. Kronstadt for the Central District of California denied a motion to stay a class action alleging violations of the UCL, FAL, and CLRA against Kraft Foods Group, Inc. based on the term "natural cheese" on the packaging of its shredded cheddar cheese product, which allegedly contain artificial coloring. Morales, et al. v. Kraft Foods Group, Inc., et al., No. 2:14-cv-04387-JAK-PJW, Dkt. No. 273. The court declined to stay the case under the doctrine of primary jurisdiction pending the FDA's rulemaking because any FDA regulation on the term "natural" would not be determinative of whether consumers were misled by the term "natural cheese." Consumers Challenge "Natural" Kraft Packaging. In May 2014, plaintiffs Claudia Morales and Mocha Gunaratna filed a class action lawsuit in Los Angeles Superior Court, seeking injunctive relief and damages under California's UCL, FAL, and CLRA against Kraft Foods Group, Inc. Plaintiffs alleged that they were misled by the term "natural cheese" on the label of Kraft's "Natural Cheese -- Shredded Cheese -- Cheddar Fat Free" and would not have purchased the product if they had known it contained artificial coloring. Kraft removed the action to the Central District of California on June 6, 2014. FDA Considers "Natural" Rulemaking and Kraft Seeks Stay. In 1993, the FDA declined to adopt a formal definition of the term "natural" in food labeling. On November 12, 2015, the FDA announced a regulatory review of the use of the term "natural" on food product labels. 80 FR 69905-01. The FDA requested public comment on the use of the term "natural" in food labeling, "including when, if ever, the use of the term is false or misleading." Id. at *68808. The deadline for comments was May 10, 2016, and the FDA received over 7,000 submissions, including ones from the dairy industry noting that "natural cheese" is a term of art. Court Denies Stay Under Primary Jurisdiction Doctrine. On December 18, 2015, Kraft filed a motion to stay pending a decision by the FDA and/or the Ninth Circuit as to the definition of "natural" in food labeling. The court denied the motion without prejudice to renewal based on new developments. On October 27, 2016, Kraft renewed the motion to stay in light of anticipated rulemaking by the FDA. Again, the court denied the motion without prejudice to renewal based on new developments in the FDA rulemaking process. Despite the trend toward stays, the court rejected Kraft's argument that it should align with other district courts that have issued stays pending completion of the FDA's rulemaking. The court distinguished those cases as involving the question of whether FDA regulations were violated. Here, "the question is whether the 'natural cheese' label is deceptive to the reasonable consumer" under the UCL, FAL, and CLRA, and the court reasoned that FDA standards are not determinative of that question. The court also rejected Kraft's argument that the FDA's rulemaking, if any, will have a direct bearing on the case. The court noted that Kraft's compliance with FDA regulations would not automatically shield Kraft from a claim under the UCL, FAL, or CLRA, and that the plaintiffs have already presented evidence that the term "natural cheese" is material to, and deceives, a reasonable consumer. Finally, the court noted that it is unclear whether and how the FDA will act on the term "natural." The court believed it was more efficient to proceed given that the case is currently teed up for Kraft's motion to decertify the class and challenge plaintiffs' expert, neither of which would be affected by the FDA's rulemaking. Kraft Takeaway. Despite the trend toward stays pending the FDA's "natural" rulemaking, this case highlights that courts have discretion to deny a stay, such as where a case has proceeded past class certification or the merits. This case was also uniquely positioned, as the plaintiffs challenged a distinct use of the term "natural" that modifies cheese, a term of art in the dairy industry, and that was based on the allegation that the product included artificial colors, which are separately regulated by the FDA. Based on these unique procedural and factual circumstances, it is far from clear whether other courts will deny stays on the same bases in other "natural" cases. LAND'S END: Certification of Class Sought in Gorss Motels Suit -------------------------------------------------------------- The Plaintiff in the lawsuit entitled GORSS MOTELS, INC., a Connecticut corporation, individually and as the representative of a class of similarly-situated persons v. LAND'S END, INC., a Wisconsin corporation, and JOHN DOES 1-5, Case No. 3:17-cv-00010- WWE (D. Conn.), moves the Court for an order: A. taking the motion under submission and deferring further activity on it until after the discovery cutoff date to be set in the Court's upcoming scheduling order under Rule 23 of the Federal Rules of Civil Procedure, or alternatively; B. granting the Plaintiff's motion for class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=PgwTpqCl The Plaintiff is represented by: Aytan Y. Bellin, Esq. BELLIN & ASSOCIATES LLC 85 Miles Avenue White Plaines, NY 10606 Telephone: (914) 358-5345 Facsimile: (212) 571-0284 E-mail: Aytan.Bellin@bellinlaw.com - and - Brian J. Wanca, Esq. ANDERSON + WANCA 3701 Algonquin Road, Suite 500 Rolling Meadows, IL 60008 Telephone: (847) 368-1500 Facsimile: (847) 368-1501 E-mail: bwanca@andersonwanca.com LOUSIANA: Denham Springs to Pursue Class Action Against DOTD ------------------------------------------------------------ Heidi Kinchen, writing for The Advocate, reports that the Denham Springs City Council on Jan. 10 agreed to hire the attorneys who filed a lawsuit against the state Department of Transportation and Development over an Interstate 12 median wall that may have worsened the August flood for many residents in Livingston and East Baton Rouge parishes. Denham Springs already was a named plaintiff in the class-action lawsuit, filed on Jan. 5 in Baton Rouge state court by the deGravelles Palmintier law firm. The contingency fee agreement approved on Jan. 10 means the city will pay the lawyers a third of any award received from the state or 20 of its contractors who designed and built the wall as part of the state's Geaux Wider project. Joshua Palmintier said the lawsuit is focused primarily on convincing the state to make changes in the median wall and to use a different design for future segments of the interstate expansion. Any money for damages would have to come from the state's contractors or their insurance companies, he said. Councilman Robert Poole questioned the need for a 33 percent fee for the lawyers. If the case settles for any significant sum, that could mean a huge windfall for the attorneys at the expense of those whose homes and businesses were damaged, he said. Mr. Poole urged the council to table the matter until they could research other firms, but his motion failed on a 2-3 vote. Councilman Jeff Wesley, who had supported Mr. Poole's push to delay a decision, voted with the majority in approving the contract, 4-1. Mr. Palmintier said the industry standard for contingency fee cases is 40 percent, but the city would pay nothing unless there is a judgment or settlement in their favor. Meanwhile, upfront costs paid by the law firm could be substantial. The firm already hired a hydrologist whose preliminary report determined the I-12 median wall was a "substantial factor" in the amount of flooding residents north of the interstate received, he said. The experts are now working on a computer model that will allow them to pinpoint any house in the affected region and determine how much of its flooding was due to the wall. "This is a very, very high-risk investment of time and money, and no one else -- no clients -- will have to do anything until such time as we get a recovery," Mr. Palmintier said. "But I truly believe we'll get at least some form of injunctive relief. . . . If we lose the class-action, we would still get that, and that's free." Mr. Poole said there will almost certainly be changes made to the wall -- in one way or another. "If biblical rains started to fall again, I guarantee you the same Cajun Navy that was out there rescuing people would be out there tearing down the wall," Mr. Poole said. "There will be injunctive relief, I can tell you." Mr. Poole stressed that his concern is not with pushing forward with the lawsuit, but with the law firm's fee. City Attorney Stephanie Hulett, who previously worked for deGravelles Palmintier, said the city could wind up paying more if it hired another legal team. Then, Denham Springs would have to pay 100 percent of its lawyers' costs, rather than splitting the costs of Mr. Palmintier's firm with other groups like the city of Walker. Ms. Hulett said she could vouch for the firm's integrity and would not push blindly for them simply because she had worked with them. MARCHESE HOSPITAL: Diluted Chemo Drug Victims Oppose Settlement --------------------------------------------------------------- Brian Cross, writing for Windsor Star, reports that emotional, embittered and raw were the pleas made in a packed Windsor courtroom on Jan. 10, as victims of the diluted chemo scandal asked a judge to reject a $2.4-million class-action settlement that works out to $1,500 each. They called the settlement a pittance and a slap in the face. "These people should be held accountable, and I only wish your honour had the power to say '$5 million for each person,'" cancer survivor Keith Salmons told Superior Court Justice Gregory Verbeem, after accusing lawyers of scrolling through their phones and smirking while weeping objectors from London and Windsor addressed the court. The firms that provided and purchased the diluted chemotherapy drugs for 1,202 cancer patients in Windsor, London, Peterborough, Oshawa and New Brunswick knew that they "screwed up," Salmons said. "How these people, all of them, go to bed at night with a clear conscience is beyond me." More than half the patients who received the diluted drugs were treated at London Health Sciences Centre. The diluted chemo drugs were distributed to five hospitals by Medbuy Corp., a London-based bulk buying agency for hospitals. Marchese Hospital Solutions of Hamilton supplied the drugs. Lawyers for both the class-action victims and the defendants called on the judge to endorse the settlement, arguing it was the best victims could hope for in the absence of any proof that taking diluted cancer drugs harmed anyone. Scores of patients who were given the drugs in 2012 and 2013 have died since. Jen Rumble held up a photo of her sister Christine and her two young daughters as she ended her address. Christine died at 31, and there's no way of knowing if she'd still be alive had she received proper strength chemo, Ms. Rumble said. "She needed the best medicine, the toughest medicine . . . She never got that." She called the $1,500 a disgusting insult: "I work as a nurse in emergency and I understand that mistakes happen, but this is a disgrace." Justice Verbeem told the dozen objectors who spoke and about 70 more who supported them: "I listened very carefully to what you said and it commands a great deal of deliberation." He reserved his decision. If the settlement is rejected, "there is no more money, I will not be able to get more money," to sweeten the offer, warned Eric Hoaken, the lawyer for Medbuy. Medbuy, Marchese Hospital Solutions and five hospitals are named in the class action. "The settlement," said Mr. Hoaken, "is an elegant solution that provides a dignified and responsible closure on a circumstance that everyone agrees is regrettable." London lawyer Mike Peerless -- peerless@mckenzielake.com -- one of the class-action lawyers along with the Winbdsor firm Sutts, Strosberg, said though he was moved by the victims' "heartfelt" and "heartbreaking" statements, he has to look at the case rationally. He said the class-action lawyers found no evidence of a single patient who suffered any significant damage from taking the diluted drugs. They also couldn't find a single expert -- no doctor, psychiatrist, oncologist or clinical pharmacologist -- who would say the underdosing caused patients' cancer to worsen. He warned if the settlement is rejected, the class-action lawsuit would be doomed. "The terms of the settlement are rational, they're reasonable and they're found in the facts of the case," Mr. Peerless said, asserting that though 49 people filed objections, "the vast majority of the class members do favour the settlement." The victims, such as breast cancer survivor Colleen Marentette, said they were tired of being told the damage they suffered -- including psychological damage -- doesn't count. "I live with the fear of cancer returning," because she didn't receive the right dose, she said. Another speaker, Jeanne Omstead-Mullins, said she wakes up every morning wondering: "Is this going to be the day?" the cancer comes back. "It's a mistake that never should have happened, it was negligence by everyone involved," said Ms. Omstead-Mullins, a Ford worker who criticized the lack of quality control in health care. "There are now children who are motherless, orphaned," she said. "Could this have been prevented with the proper inspections?" One of the vocal opponents of the settlement, mother of three Sarah Johnson, 41, was unable to attend the Jan. 10 court date because she was in hospital, coping with terminal metastatic breast cancer. "That's how close to home this strikes all of us," Louise Martens, a leader among the diluted chemo victims, told the court. She said she's been told the $1,500 is "go away money." "Why are we unworthy?" she asked. "Why are we not being treated like priceless lives?" Diluted chemo lawsuit by the numbers 1,200 Southwestern Ontario patients were treated with diluted drugs 665 were treated at London Health Sciences Centre $2.4M settlement was reached with the drug supplier and purchaser $1.8M left after legal, other fees paid About $1,500 left for each patient MARLBORO: Lawyers Seek Up to $30-Mil. in Compensation ----------------------------------------------------- KATV reports that the lawyers who secured a $45 million settlement for smokers of Marlboro Lights in Arkansas have asked a judge to decide how much they should be paid. The Arkansas Democrat-Gazette reports the lawyers didn't ask for a specific amount in their payment petition last month. But they say there is court precedent in Arkansas that would allow them between $12.4 million and $30 million, based on the value a judge places on their representation. The lawyers say they worked more than 15,000 hours, valued at $10.2 million, and spent $2.2 million of their own money to pursue the litigation over 13 years. The attorneys say the class-action lawsuit won compensation for smokers who may have turned to the Lights brand in hopes of getting a healthier product. MEDICREDIT INC: Privacy Breach Class Certified in "Raffin" Suit --------------------------------------------------------------- The Hon. George H. King granted the Plaintiff's motion for class certification submitted in the lawsuit captioned Sheena Raffin v. Medicredit, Inc., et al., Case No. 2:15-cv-04912-GHK-PJW (C.D. Cal.). The class is defined as: All individuals who, from June 29, 2014 to February 26, 2015, while physically present in California and using a cellular device with a California area code, participated for the first time in a telephone conversation with a representative of Defendants or their agents who were recording the conversation without first informing the individual that the conversation was being recorded. Sheena Raffin, individually and on behalf of those similarly situated, alleges that Defendants Medicredit, Inc. and The Outsource Group, Inc., violated California wiretapping laws in recording telephone conversations of her and the putative class. She alleges that Medicredit, a debt collector, contacted her "multiple times regarding an alleged debt." Based on these allegations, she sued Medicredit under California's Invasion of Privacy Act. The Court certifies the injunctive relief portion of the action under Rule 23(b)(2) of the Federal Rules of Civil Procedure and the monetary damages portion of the action under Rule 23(b)(3). The Court appoints the Law Offices of Todd M. Friedman, P.C., as class counsel and Sheena Raffin as class representative. A copy of the Civil Minutes is available at no charge at http://d.classactionreporternewsletter.com/u?f=IHzrOVEu MEZENTCO SOLUTIONS: No Ruling Yet on Diluted Chemotherapy Case -------------------------------------------------------------- Mike Vlasveld, writing for Blackburn News, reports that a ruling has yet to be made regarding a class-action lawsuit involving patients who received diluted chemotherapy treatment in 2012. Twenty members of the lawsuit were in the Superior Court of Justice in downtown Windsor on Jan. 10, objecting to the settlement, which would end up paying about $1,500 to each member. A decision on the settlement was expected to be made in court on Jan. 10. However, as of Jan. 10, no ruling had been announced. A lawyer on the defendant's side has warned that the plaintiff's case is not strong enough to warrant more compensation. The lawyer stated that the dilution of the chemo drug was within a range found to be medically acceptable, and there were no adverse health effects as a result. The plaintiffs are pointing to past, similar cases in Ontario, in which very few members of two separate classes received compensation after taking their cases to litigation. About 290 patients at Windsor Regional Hospital and 691 in London received the less than optimum chemotherapy dose in 2012. They were among 1,200 patients in Ontario and New Brunswick who were affected. MGM: Settles Case Over Unpaid Internships, Jan. 17 Hearing Set -------------------------------------------------------------- Eriq Gardner, writing for Hollywood Reporter, reports that MGM has agreed to put up as much as $232,500 to settle a proposed class action over unpaid internships at the studio. The deal was submitted to a judge for approval. Kimi Gupta, who spent less than three weeks interning at MGM in 2012, filed the lawsuit on behalf of herself and others similarly situated in April 2015 -- around the time that Viacom, NBCU, Conde Nast and ICM were hammering their own settlement agreements to resolve legal disputes over internships. Perhaps the feature that set Ms. Gupta's lawsuit apart from the others was its location. She brought her case in Los Angeles Superior Court over alleged violations of California labor law including failure to pay minimum wage, whereas many of the other internship lawsuits proceeded in New York federal court. As such, had Ms. Gupta's case proceeded further, a judge wouldn't have been beholden to the big ruling from the 2nd Circuit Court of Appeals in the case over unpaid internships at Fox. During her short stint at MGM, Ms. Gupta alleged she was assigned entry-level work including maintaining records of television programs at the company's cable unit. The proposed settlement covers others who participated in unpaid internships since April 30, 2011. In a memorandum in support of the settlement, the plaintiff's attorney Jahan Sagafi at Outten & Golden estimates 258 class members. That makes the $232,500 settlement about on par by the standards of prior litigation on the topic. The deal allows the plaintiff's counsel to seek up to one-third of the settlement fund as attorney's fees, plus $10,000 in litigation costs, meaning that each class member would theoretically receive about $500 to resolve claims. A judge is scheduled to consider the settlement at a hearing on Jan. 17. MILLENNIUM PARTNERS: Faces Suit Over Leaning and Sinking Tower -------------------------------------------------------------- San Franciso News reports the leaning and sinking Millennium Tower in San Francisco is being sued by homeowners who filed for class- action status and are seeking compensation from Millennium Partners, the developer of the building. Millennium Tower was completed in 2010 and reportedly cost residents of SF millions of dollars. Homeowners were notified of the building's issues last year, but based on documents, tenants believe that the building's developers were aware of it's questionable stature as early as 2009. Dennis Herrera, San Francisco City Attorney, sued Millennium Tower last summer for knowingly selling property within the sinking 58- story building. According to Herrera's spokesperson, John Cote, the city was not made aware of the sinking building, despite suspicions of community members. "It has been reported that the building was expected to settle evenly to the depth of approximately 6 inches over its lifetime, but has now settled 12 -- 16 inches and is leaning 15 inches at its top to the northwest. We are informed that some owners are reporting problems with uneven floors, difficulty opening and closing doors, windows, and cabinets, and that some interior wall cracks have been observed," stated the Millennium Litigation Group. The building's foundation, which is not secured to the steady bedrock underneath the soils, has raised concerns of earthquake and emergency safety. MULTI CABLE: Class of Technicians Certified in "Luviano" Suit ------------------------------------------------------------- The Hon. Beverly Reid O'Connell: -- grants in part the Plaintiff's motion for certification of a class action filed in the lawsuit styled L. LUVIANO V. MULTI CABLE, INC., ET AL., Case No. 2:15-cv-05592-BRO-FFM (C.D. Cal.); -- grants the Plaintiff's motion for order granting certification of a collective action; and -- grants in part Defendants Time Warner Cable Inc., Time Warner Cable Pacific West LLC, and Time Warner Cable Enterprises LLC's motion to strike the declaration of Evelyn Carlson. According to the civil minutes, the Plaintiff proffers the Declaration of Evelyn Carlson and relies on her as an expert witness to testify to matters such as ascertainability, numerosity, and existence of common questions in relation to Plaintiff's Motions. The action arises from a compensation dispute between Plaintiff Luis Luviano, Defendant Multi Cable, Inc., and the TWC Defendants. The Plaintiff worked as an Installation Technician ("IT") for Defendant MCI. In his Class Action Motion, the Plaintiff specifies one class and one subclass for which he seeks certification: Class 1: All ITs paid as faux "independent contractors" during the period from four years prior to the filing of the original Complaint herein (June 23, 2011) until June 13, 2015, the last date on which the ITs were paid as independent contractors rather than employees. Subclass 1: All ITs who are no longer working as such. A copy of the Civil Minutes is available at no charge at http://d.classactionreporternewsletter.com/u?f=rqrvgPs7 MULTI-STATE LOTTERY: Rigged Games Suit Seeks Class Action Status ---------------------------------------------------------------- Chris Berg at KCHA News reports that two Des Moines law firms have joined forces and filed the first class action lawsuit against the Multi-State Lottery Association (MUSL) over the alleged rigging of lottery games in Iowa and other states. The lottery association helps run multi-state lottery games and its information technology security director, Eddie Tipton, was found guilty of rigging a Hot Lotto drawing in Iowa and is accused of rigging the software of several games in other states. Nick Mauro, -- mauro@crawfordlawfirm.com -- at Crawford Mauro Law Firm is one of the attorneys in the case. Dale Culler of Burlington purchased 45 dollars worth of tickets for the Iowa Hot Lotto game which was ultimately determined to be rigged. Mauro is representing Culler and says they hope to find others who also bought tickets and lost out. Many people throw out their tickets after learning they haven't won, but he says there are other ways to determine if you played in the rigged games. Getting that information could be a key part of the case. Mauro says while Tipton was acting on his own, the organization should have been able to catch him before he rigged the lotteries. The lawsuit cites rigged drawings in Colorado beginning in 2005, three drawings in Wisconsin, one in Kansas and Oklahoma and others that Tipton is believed to be involved in, as well "additional rigged contests as yet to be determined." Tipton was convicted on July 20th, 2015 of tampering with lottery equipment related to the December 29, 2010, Hot Lotto drawing and faces criminal charges for the other drawings. NAT'L COLLEGIATE: Ex-Football Players File Concussion Class Suit ---------------------------------------------------------------- Fatima Hussein, writing for IndyStar, reports that a group of former college football players is suing the NCAA and the Big 12 Conference for what they allege is inadequate concussion treatment and return-to-play rules. In the class-action lawsuit filed in the U.S. District Court, the former athletes seek damages from the National Collegiate Athletic Association and the Big 12 Conference for brain injuries sustained on the field. The plaintiffs -- Cory Brandon, Kelvin Chaisson, Derrick Cherry, Jarrod Blake Roberts and Joseph Walker -- played football for colleges in Texas and Oklahoma, and filed the suit in U.S. District Court in the Southern District of Indiana. "The NCAA and Big 12 specifically intended to induce a false belief in its student-athletes that they should continue to play and should not be prevented from playing their respective sports even after a concussion or several concussions that should have required time to heal," the 60-page complaint states. The lawsuit is one of more than 43 filed against NCAA alleging it mishandled concussion treatment, according to The Associated Press. The latest lawsuit alleges that "defendants sacrificed player safety -- including the plaintiffs' and the class' long-term health and well-being -- in favor of profits and self-promotion." As the governing body of college football, the NCAA held and holds itself out as the guardian of, and ultimate authority on, player safety, wrote attorney Vincent Circelli, with Fort Worth, Texas, law firm, Circelli, Walter & Young. "It (NCAA) unilaterally acknowledged a duty to provide all players' safety. Player safety is supposed to be safeguarded with rules, information and best practices that protect the athletes as much as possible from short-term and long-term health risks," Mr. Circelli states. "But they did not, because for the past several decades the NCAA and its member conferences placed profits far ahead of player safety." All the plaintiffs state that they have sustained brain damage from concussions they suffered from playing football. Brandon played football at the University of Oklahoma from 2006 to 2011; Roberts played at Texas Christian University from 2010 to 2014; Cherry played at Texas Tech University from 1994 to 1996; Chaisson played at the University of Oklahoma from 2001 to 2005; and Walker played at the University of Texas from 1997 to 2000. The complaint's allegations include: breach of express contract, breach of implied contract, fraudulent concealment, negligence and unjust enrichment. Donald Remy, the NCAA's chief legal officer, responded to the former football players' complaint in an emailed statement. "This complaint against the NCAA presents nothing new or unique to the many cases consolidated to federal court in Illinois," Remy wrote to IndyStar. "The theories in this case, like the others, simply are not supported by the law." The players are seeking class certification, a monetary judgment for all actual damages, both past and future, attorney's fees, costs of the suit and other damages. NATIONAL CREDIT: Certification of Class Sought in "Hoffman" Suit ---------------------------------------------------------------- Robert Hoffman moves the Court to certify the class described in the lawsuit entitled ROBERT HOFFMAN, Individually and on Behalf of All Others Similarly Situated v. NATIONAL CREDIT ADJUSTERS, LLC, Case No. 2:17-cv-00011 (E.D. Wisc.), and further asks that the Court both stay the motion for class certification and to grant the Plaintiff (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Damasco and decisions like it imposed significant burdens on the Court and on Plaintiff's Counsel, the Plaintiff asserts, citing Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence, Mr. Hoffman states. He asserts that he is obligated to move for class certification to protect the interests of the putative class. The Supreme Court's decision in Campbell-Ewald Co. v. Gomez, 2016 U.S. LEXIS 846 *14-15 (U.S. Jan. 20, 2016) (internal citations omitted) and Chapman should have put a stop to this practice. Unfortunately, they have not, the Plaintiff notes. In dicta, the Supreme Court left open the possibility that a defendant facing a class action complaint could moot a class representative's case by depositing funds equal to or in excess of the maximum value of the plaintiff's claim with the court and having the court enter judgment in the plaintiff's favor prior to a class certification motion. Campbell-Ewald Co., 2016 U.S. LEXIS 846 *19 ("We need not, and do not, now decide whether the result would be different if a defendant deposits the full amount of the plaintiff's individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount."). As the Motion is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, the Plaintiff contends. Mr. Hoffman also asks to be appointed as class representative, and for the appointment of Ademi & O'Reilly, LLP as class counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=gsJkyCzQ The Plaintiff is represented by: Shpetim Ademi, Esq. John D. Blythin, Esq. Mark A. Eldridge, Esq. Denise L. Morris, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: sademi@ademilaw.com jblythin@ademilaw.com meldridge@ademilaw.com dmorris@ademilaw.com NATIONWIDE EVICTION: Class Certification Sought in "Russell" Suit ----------------------------------------------------------------- The Plaintiff in the lawsuit entitled DAN RUSSELL, Individually and On Behalf of All Others Similarly Situated v. NATIONWIDE EVICTION, LLC, Case No. 4:17-cv-00008 (S.D. Tex.), moves the Court for conditional certification of claims pursuant to the Fair Labor Standards Act. The Plaintiff asserts that the action is filed, concurrently with the Motion, to correct the Defendant's unlawful employment practices and to seek damages and other relief not only for themselves, but on behalf of other similarly situated current and former employees. The Plaintiff alleges that the Defendant employed and misclassified the Plaintiff, and others similarly situated, as independent contractors and failed to pay them overtime or minimum wage, in violation of the FLSA. The Plaintiff and others similar situated worked as "professional court representatives" -- non-attorney agents for its client-customers to prepare for and attended eviction hearings. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=gZeQrhWZ The Plaintiff is represented by: Alfonso Kennard Jr., Esq. Ronald E. Dupree, Jr., Esq. 2603 Augusta Dr., Suite 1450 Houston, TX 77057 Telephone: (713) 742-0900 Facsimile: (713) 742-0951 E-mail: alfonso.kennard@kennardlaw.com ronald.dupree@kennardlaw.com NORTHROP GRUMMAN: Carlson Seeks Class Certification Under ERISA --------------------------------------------------------------- The Plaintiffs in the lawsuit styled ALAN CARLSON & PETER DeLUCA, individually and on behalf of a class of similarly situated individuals v. NORTHROP GRUMMAN CORPORATION and the NORTHROP GRUMMAN SEVERANCE PLAN, Case No. 1:13-cv-02635 (N.D. Ill.), ask the Court to certify claims they brought in their amended complaint under the Employee Retirement Income Security Act of 1974. The Plaintiffs ask for an order certifying Counts I-III on behalf of the Class, defined as: All persons who worked for Northrop Grumman in the United States, were regularly scheduled to work over 20 hours per week, were laid off from Northrop Grumman from January 1, 2012 and after, and who did not receive written notification from management or from a Vice President of Human Resources (or his/her designee) notifying them of their eligibility for severance benefits under the Plan and who did not receive the "Cash Portion" of the severance benefits (a.k.a. the Salary Continuation Benefits) under the terms of the Plan (regardless of whether they received Medical, Dental or Vision Benefits under the Plan), as well as the beneficiaries of such persons. Excluded from the Class are (1) employees specifically excluded from participation in the Plan as follows: (a) Employees of the Electronic Systems Sector who work at BWI, Annapolis, Sykesville (including FE&S employees and FE&S offsite offices and facilities), Troy Hill, Sunnyvale or Kings Bay, (b) Employees of the Technical Services Sector who are classified by Northrop Grumman as being in the following employment categories (i) Service Contract Act (SCA) employees, (ii) Union Represented employees, (iii) Employees covered by a Memorandum of Understanding between the Technical Services Sector and Electronic Services Sector providing for the temporary assignment of the employee to the Technical Services Sector and retention of participation in the Electronic Services Sector employee benefit programs, (c) employees excluded from coverage as a result of participation in another Northrop Grumman severance benefit program, and (d) employees represented by a union whose collective bargaining agreement does not provide for participation in the Plan; and (2) any fiduciaries or other persons who had any decision making or administrative authority with respect to the Plan and the members of the immediate family of any such person. The Plaintiffs also ask the Court to appoint them as Class Representatives and appoint Michael Bartolic, Esq., of Roberts Bartolic, LLP and R. Joseph Barton, Esq., of Block and Leviton LLP as Co-Lead Class Counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=srOoBoPW The Plaintiffs are represented by: R. Joseph Barton, Esq. BLOCK & LEVITON LLP 1735 20th St NW, Washington DC 20009 Telephone: (202) 734-7046 E-mail: jbarton@blockesq.com - and - Michael Bartolic, Esq. ROBERTS BARTOLIC LLP 208 S. LaSalle Street, Suite 1420 Chicago, IL 60603 Telephone: (312) 635-1600 Facsimile: (312) 635-1601 E-mail: mbartolic@michaelbartolic.com NOVO NORDISK: Bernstein Litowitz Files Securities Class Action -------------------------------------------------------------- Bernstein Litowitz Berger & Grossmann LLP ("BLB&G") on Jan. 11 disclosed that it has filed a securities class action lawsuit on behalf of Lehigh County Employees' Retirement System against Novo Nordisk A/S ("Novo Nordisk" or the "Company") (NYSE: NVO) and certain of its senior executives. The action, which is captioned Lehigh County Employees' Retirement System v. Novo Nordisk A/S, No. 17-cv-00209 (D.N.J.), asserts claims under the Securities Exchange Act of 1934 on behalf of investors in Novo Nordisk American Depositary Receipts ("ADR") during the time period of April 30, 2015 to October 27, 2016, inclusive (the "Class Period"). The Complaint alleges that during the Class Period, Novo Nordisk reported materially false and misleading earnings and forecasts in that they were inflated through the collusive price fixing of the Company's insulin drugs. The Complaint also alleges that Novo Nordisk misrepresented and concealed the true extent of the pricing pressures it was experiencing from pharmacy benefit managers. If you wish to serve as Lead Plaintiff for the Class, you must file a motion with the Court no later than 60 days from January 11, 2017. Accordingly, the deadline for filing a motion for appointment as Lead Plaintiff is March 13, 2017. Any member of the proposed Class may move the Court to serve as Lead Plaintiff through counsel of their choice, or may choose to do nothing and remain a member of the proposed Class. If you wish to discuss this Action or have any questions concerning this notice or your rights or interests, please contact Avi Josefson of BLB&G at 212-554-1493, or via e-mail at avi@blbglaw.com. Since its founding in 1983, BLB&G -- http://www.blbglaw.com-- specializes in securities fraud, corporate governance, shareholders' rights, employment discrimination, and civil rights litigation, among other practice areas, BLB&G prosecutes class and private actions on behalf of institutional and individual clients worldwide. PACIFIC FINANCIAL: Class Action Lawsuit Goes Forward ---------------------------------------------------- Go by Truck reports the Owner-Operator Independent Drivers Association said its class action lawsuit against Pacific Financial Association was given the go ahead by the Arizona Court of Appeals to move forward. The court issued an important precedent-setting ruling that OOIDA's lawsuit for breach of fiduciary duty under a BMC -- 85 Trust could proceed. The lawsuit was filed in 2013 alleging that Pacific Financial breached its fiduciary duties under the BMC-85 Trust by failing to pay claims promptly, failing to terminate the trust upon the aggregation of claims as required under the Trust, favoring certain beneficiaries to the detriment of others, and engaging in conflicts of interest. The Court of Appeals reversed a lower court ruling that the lawsuit could not proceed under either Arizona statute or common law, concluding that such claims were perfectly entitled to proceed under common law. The Court of Appeals also reversed and vacated the lower court's award of $85,000 for attorneys' fees against OOIDA. The ruling paves the way for OOIDA to obtain discovery from Pacific Financial and for the case to be tried on the merits. "The court's ruling sets an extremely important precedent in holding trustees like Pacific Financial accountable for losses incurred by small-business truckers at the hands of brokers who have failed to pay their claims," said OOIDA President and CEO Jim Johnston. "The case also sends a clear message to other BMC-85 trustees throughout the country and carries out the objective of protecting truckers against 'dishonest and financially unstable middlemen in the transportation industry.'" Johnston said that OOIDA will ensure that those interests are "fully vindicated in its suit against Pacific Financial" and other cases involving similar conduct. PATCO ELECTRICAL: Roberts Seeks to Certify Class of Electricians ---------------------------------------------------------------- The Plaintiffs in the lawsuit titled KYLE R. ROBERTS AND JOHNY L. SMITH, on behalf of themselves and others similarly situated v. PATCO Electrical Services, Inc., Case No. 5:16-cv-00720-M (W.D. Okla.) file with the Court their motion for conditional class certification and request for discovery. The proposed class consists of: "All current and former electricians, including journeymen and apprentices, who were employed by PATCO at any time from June 24, 2013 to the present." Because PATCO refuses to pay its employees the rightful compensation to which they are entitled, the Plaintiffs contend that they have been forced to file the lawsuit to recover unpaid compensation from PATCO on behalf of themselves and others similarly situated under the Fair Labor Standards Act. Specifically, the Plaintiffs allege, PATCO requires its employees to work a substantial amount of overtime without properly paying all compensation due, thus, depriving them of rightful compensation for their work that PATCO is legally obligated to pay. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=dimRBYnG The Plaintiffs are represented by: Robert W. Cowan, Esq. BAILEY PEAVY BAILEY COWAN HECKAMAN PLLC 440 Louisiana Street, Suite 2100 Houston, TX 77002 Telephone: (713) 425-7100 Facsimile: (713) 425-7101 E-mail: rcowan@bpblaw.com PULASKI COUNTY, IN: Hizer Seeks to Certify Disabled Persons Class ----------------------------------------------------------------- Emily Hizer asks the Court to certify the case captioned EMILY HIZER, on her own behalf and on behalf of a class of those similarly situated v. PULASKI COUNTY, INDIANA, Case No. 3:16-cv- 00885-TLS-MGG (N.D. Ind.), as a class action. She seeks certification of a class defined as: all persons with mobility impairments or other physical disabilities who access or attempt to access, or who will access or will attempt to access, the Pulaski County Courthouse. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=M3HIl4UQ The Plaintiff is represented by: Kenneth J. Falk, Esq. ACLU OF INDIANA 1031 E. Washington St. Indianapolis, IN 46202 Telephone: (317) 635-4059 Facsimile: (317) 635-4105 E-mail: kfalk@aclu-in.org RALEIGH HEART: Clinic Doctor Reprimanded Amid Class Action ---------------------------------------------------------- Lori Kersey, writing for Charleston Gazette-Mail, reports that a health care provider at a Beckley heart clinic linked to several cases of hepatitis B and C allowed a person with no medical license to perform parts of patients' stress tests, according to a consent order filed by the West Virginia Board of Medicine. Dr. Thair Ali Barghouthi, president of the Raleigh Heart Clinic, admitted to the board that he delegated some of the responsibilities of stress tests to his brother, Ahmad Barghouthi, whose Nuclear Medicine Apprenticeship License had lapsed, according to the order. "Dr. Barghouthi was aware that his brother's Nuclear Medicine Apprenticeship License expired in July 2012," the consent order's findings of fact state. "Dr. Barghouthi admits that, during the performance of nuclear medicine stress test procedures, he has delegated tasks to Mr. Barghouthi, including the positioning of patients, operating nuclear scan equipment, and monitoring the patient and equipment." A patient of the clinic complained to the medical board that Dr. Barghouthi delegated responsibilities of the patient's nuclear medicine stress tests to his brother in 2012, 2013 and 2014, according to the consent order. A lawyer representing Dr. Barghouthi in a class-action lawsuit filed by patients said what the doctor's brother did had nothing to do with the lawsuit. The brother positioned patients but didn't inject them, attorney Don Sensabaugh said. In its filing, the Board of Medicine publicly reprimanded Dr. Barghouthi and prohibited him from delegating professional responsibilities related to the tests to anyone who doesn't have the required certifications or credentials to do the tests, including Mr. Barghouthi. In March 2016, the West Virginia Department of Health and Human Resources sent letters to 2,300 of the clinic's patients who underwent a stress test with injectable medicine between March 1, 2012, and March 27, 2015. The letters told patients they might have been exposed to HIV and hepatitis A and B, and encouraged them to be tested. At the time, 12 cases of patients with hepatitis B or hepatitis C were documented. Four more hepatitis cases were detected later, although they couldn't be "conclusively linked to the clinic," a DHHR news release at the time said. The state recommended that patients at the clinic before March 1, 2012, be tested for hepatitis B, hepatitis C and HIV. No cases of HIV related to the clinic have been reported. State health officials last year said they were not sure what caused the hepatitis cases. Health Commissioner Dr. Rahul Gupta said an investigation turned up no "smoking gun" as a reason for the viruses being transmitted, but that there are a number of factors that could have caused it. "It's not just [not reusing] the needle, but there are a host of other precautions that one must take when you're doing the procedure, and that's part of the infection control," Dr. Gupta told reporters during a news conference at the time. At least two patients filed lawsuits against the clinic last year in Raleigh County Circuit Court. A lawsuit filed by Raleigh County resident Pamela Vines was granted class-action status in December, her attorney, Stephen New, said on Jan. 11. The case has about 100 class members and is moving through the litigation process, New said. A clerk at Raleigh County Circuit Court said the filing is under seal and cannot be released. RESOURCE ENERGY: Class of Welders Certified in "Moresi" Suit ------------------------------------------------------------ Magistrate Judge Carol B. Whitehurst granted in part and denied in part the Plaintiffs' motion for conditional class certification filed in the lawsuit styled Moresi, et al. v. Resource Energy Ventures and Construction Company LLC, Case No. 6:15-cv-02224-RFD- CBW (W.D. La.). On August 21, 2015, Plaintiff Dylan John Moresi filed the action against REVCO on behalf of himself and all others similarly situated. On January 14, 2016, Mr. Moresi amended the complaint to add Gulf Coast Services, Inc. as Defendant, alleging that "REVCO was merely a front or sham company" and GSSI was Moresi's "true employer," or alternatively that GSSI was a "joint employer within the meaning of the FLSA." The Amended Complaint alleged Fair Labor Standards Act claims identical to those originally alleged against REVCO. In the Motion, the Plaintiffs seek to certify a collective action on behalf of those similarly situated employees who were not paid overtime for hours worked in excess of 40 hours in a work week. They ask that the Court to collectively certify the action to include: All "welders, fitters and helpers" rendering services to or for the benefit of REVCO and/or Gulf South [GSSI] whether directly employed by REVCO and/or GSSI or referred through a third party in the past 3 years and who were classified by GSSI or the third party as independent contractors or who, regardless of how classified, were not paid overtime compensation by GSSI or the third party for any hours worked in excess of forty (40) hours in the workweek. Judge Whitehurst granted in part and denied in part the Plaintiffs' Motion, including Court-approved notice to be issued to potential class participants, certifying the proposed class as defined but limiting the Defendants to Resource Energy Ventures and Construction Company LLC and Gulf South Services, Inc., and approving the proposed notice form, subject to the joint submission filed by the parties. The Defendants will have 10 days from the entry of the Order to provide the Plaintiffs with an updated information necessary to facilitate notice. Judge Whitehurst also ordered the parties to jointly submit a revised copy of the Proposed Notice for final Court review no later than January 20, 2017. Once the revised Proposed Notice is approved, the Plaintiffs are authorized to disseminate the approved Notice to prospective class members via first class mail and e-mail. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=fwSIqiRk SANTANDER CONSUMER: Anderson Seeks Certification of Class --------------------------------------------------------- Erik W. Anderson moves the Court to certify the class described in the lawsuit styled ERIK W. ANDERSON, Individually and on Behalf of All Others Similarly Situated v. SANTANDER CONSUMER USA, PROFESSIONAL BUREAU OF COLLECTIONS OF MARYLAND, INC., and NCB MANAGEMENT SERVICES, INC., Case No. 2:17-cv-00012 (E.D. Wisc.), and further asks the Court to both stay the motion for class certification and to grant the Plaintiff (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Damasco and decisions like it imposed significant burdens on the Court and on Plaintiff's Counsel, the Plaintiff asserts, citing Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011), overruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence, Mr. Anderson states. He asserts that he is obligated to move for class certification to protect the interests of the putative class. The Supreme Court's decision in Campbell-Ewald Co. v. Gomez, 2016 U.S. LEXIS 846 *14-15 (U.S. Jan. 20, 2016) (internal citations omitted) and Chapman should have put a stop to this practice. Unfortunately, they have not, the Plaintiff notes. In dicta, the Supreme Court left open the possibility that a defendant facing a class action complaint could moot a class representative's case by depositing funds equal to or in excess of the maximum value of the plaintiff's claim with the court and having the court enter judgment in the plaintiff's favor prior to a class certification motion. Campbell-Ewald Co., 2016 U.S. LEXIS 846 *19 ("We need not, and do not, now decide whether the result would be different if a defendant deposits the full amount of the plaintiff's individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount."). As the Motion is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, the Plaintiff contends. Mr. Anderson also seeks his appointment as class representative, and the appointment of Ademi & O'Reilly, LLP as class counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=2UjlQWVk The Plaintiff is represented by: Shpetim Ademi, Esq. John D. Blythin, Esq. Mark A. Eldridge, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: sademi@ademilaw.com jblythin@ademilaw.com meldridge@ademilaw.com SCHWARTZ LEVITSKY: Appeal Court Rules in Favor of ESO Investors --------------------------------------------------------------- Norm Emblem, Esq. -- norm.emblem@dentons.com -- Jessie Lamont, Esq. -- jessie.lamont@dentons.com -- and Aoife Quinn, Esq. -- aoife.quinn@dentons.com -- of Dentons, in an article for International Law Office, report that a divided Court of Appeal for Ontario recently granted certification to a global class of accredited investors in an auditor's liability claim, and held that there is no independent principle of restraint to which a court should adhere when certifying a global class. In Excalibur Special Opportunities LP v Schwartz Levitsky Feldman LLP, the court of appeal held that Ontario's connection to a class action was sufficient where one member of the class carried on business in Ontario, the defendant was resident and carried on business in Ontario, and the class was small and all members were known. Excalibur creates a precedent for parties seeking to certify global class actions in Ontario, but will also limit the comfort that parties take in their certification decisions. The court of appeal reversed the first-instance decision, which had been upheld by a majority of the Ontario Divisional Court. Facts Plaintiff Excalibur Special Opportunities LP (ESO) is organised under the provincial laws of Manitoba, but operates in Ontario. ESO was one of 57 'accredited investors' that invested in a Chinese hog production company, incorporated in Nevada, that planned a reverse takeover of a Delaware company and a private placement under the US Securities Act of 1993. The group of investors comprised 50 Americans, five global investors and one other Canadian investor from British Columbia. The defendant -- SLF, a Toronto and Montreal-based accounting firm with stated expertise in auditing Chinese companies -- prepared an audit report certifying that the financial statements presented by the hog producer were financially accurate. The US promoters of the private placement attached this clean audit report as an exhibit to a private placement memorandum circulated to the accredited investors. Within a year, the accredited investors learned that the company lacked financial controls over its all-cash business. Within 22 months of that disclosure, ESO lost its US$400,000 investment and the proposed class lost a total of US$7.5 million when the hog producer went out of business. The plaintiffs alleged that all of the accredited investors relied on the clean audit report in their decision to invest in the hog producer and sought to certify a class action against SLF for the torts of negligent misrepresentation and negligence. Lower-court decisions At first instance, Justice Perell held that Excalibur was not an appropriate case to certify a global class. In the judge's opinion, Ontario did not have a real and substantial connection with the claims of 56 of the 57 investors and Ontario's connection with ESO, a Manitoba partnership, was "modest if not trivial". It would not be reasonable for the non-resident class members to expect that their rights would be determined by a foreign court, as they were "non-residents in Ontario making substantial investments in American dollars in an American corporation in a transaction that was governed by American corporate and securities law". Assuming jurisdiction in this case would not demonstrate the "restraint required" of Ontario courts "under the principles of order and fairness". The judge also held that a class action was not a preferable procedure. He noted that Excalibur was far from the "quintessential case of a class proceeding for a purely economic loss", where there is an economic barrier to access to justice because the individual cannot bring forward a claim because of the high cost that litigation would entail in comparison to the modest value of the claim. Instead, Excalibur was a situation where joinder of claims would provide effective redress for ESO and other investors which could join as co-plaintiffs. A majority of the Ontario Divisional Court upheld the decision both on jurisdiction and on preferable procedure. With respect to the latter, the divisional court stated that "[j]oinder is not simply an alternative, it is the default position in considering whether a class proceeding is or is not the preferable procedure". Appeal decision Jurisdiction The plaintiffs successfully appealed and the Court of Appeal of Ontario held that the motion judge had erred in approaching the question of whether there was a real and substantial connection between Ontario and the cause of action with "restraint". Rather, the court of appeal found that the test for whether a court should assert jurisdiction over foreign class members is the test for asserting jurisdiction articulated in Club Resorts Ltd v Van Breda. Ontario had jurisdiction as the facts exhibited three of the four presumptive Van Breda factors: it was an action for negligence and negligent misrepresentation against a defendant resident and carrying on business in Ontario, which had drafted the impugned clean audit report in Ontario. The majority took the view that the motion judge could not have concluded that Ontario had a "modest" or "trivial" connection to the claim had he properly characterised the nature of the proposed action. It was an error for the motion judge to re-characterise the claim in the way that he did. The action as pleaded in the plaintiffs' claim was an action against an accounting firm carrying on business in Ontario and Montreal, for audit work done in Ontario by a partner in SLF's Toronto office, and ESO was a Toronto-based company registered in Manitoba which had made the ill-fated investment out of its Toronto office. In his dissent, Justice Blair opined that there was never a dispute as to whether the Ontario court had jurisdiction simpliciter over the proposed class proceeding; rather, the question was whether it was "appropriate" to certify a global class in this situation. As the motion judge had committed no error of fact or mixed fact and law in this analysis, Blair found that his decision should be accorded deference. Preferable procedure The court of appeal also addressed how the preferable procedure criterion should be analysed, explaining that plaintiffs need not show that a class action is necessary -- only that it is preferable. In particular, the court of appeal rejected the divisional court's characterisation of joinder as the "default" procedure and clearly stated that there is no "default" procedure in the assessment of the merits of a class proceeding. The court engaged in the analysis prescribed by the Supreme Court in AIC Limited v Fisher, finding that a number of factors militated against adopting joinder as the preferable procedure, including: -- barriers to access to justice for proposed class members with smaller claims; -- lack of evidence on the feasibility of joinder; -- the fact that successful plaintiffs would have an enforceable Ontario judgment against an Ontario defendant; and -- the fact that class actions are more effective than individual actions in terms of regulatory oversight. In his dissent, Blair again emphasised that the court should be deferential to the motion judge's decision, in recognition of his role as "gatekeeper". In his view, the motion judge had conducted the preferable procedure analysis with a view to the goals of judicial economy, behaviour modification and access to justice. However, Blair agreed with the court of appeal that the divisional court had erred in characterising joinder as the "default position" in the preferable procedure analysis. Comment Class action counsel should take note of the court of appeal's decision in Excalibur, which offers perspective on the preferable procedure analysis and certification of a global class, as well as the deference accorded to the certification judge. Similarly, counsel advising auditors should also be aware that, if litigated on its merits (in this action or if followed in another case), this decision has the potential to expand the liability of auditors. At first instance, the motion judge held that the novel claim against the auditors for negligence in giving the clean audit report could stand alongside the claim for negligent misrepresentation relating to the false statements of the clean audit report, as it was not "plain and obvious" that the novel claim for negligence was legally untenable. Despite the fact that this was not a main issue on appeal by the time the case made it way to the court of appeal, it remains a notable development. SCRAP INC: Status Hearing in Chicago Car Suit Reset for March 7 --------------------------------------------------------------- The Clerk of the U.S. District Court for the Northern District of Illinois made a docket entry on January 4, 2017, in the case titled Chicago Car Care Inc. v. S.C.R.A.P. Inc., et al., Case No. 1:16-cv-08088 (N.D. Ill.), relating to a hearing held before the Honorable Andrea R. Wood. The minute entry states that in light of the parties' notice of settlement, the status hearing set for January 4, 2017, is stricken and reset for March 7, 2017, at 9:00 a.m. If the Plaintiff files a notice of voluntary dismissal prior to the status hearing, the date will be stricken. In light of the parties' agreement to settle the case, the Plaintiff's motion for class certification is denied without prejudice. A copy of the Notification of Docket Entry is available at no charge at http://d.classactionreporternewsletter.com/u?f=7iG1etNb SEATTLE GENETICS: March 13 Lead Plaintiff Motion Deadline Set ------------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, on Jan. 11 announced the filing of a class action lawsuit on behalf of purchasers of Seattle Genetics Inc. securities (NASDAQ:SGEN) from October 27, 2016 through December 23, 2016, inclusive (the "Class Period"). The lawsuit seeks to recover damages for Seattle Genetics investors under the federal securities laws. To join the Seattle Genetics class action, go to http://rosenlegal.com/cases-1020.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. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. According to the lawsuit, throughout the Class Period defendants issued materially false and misleading statements to investors and/or failed to disclose that: (1) vadastuximab talirine, one of Seattle Genetics' products in development, presents a significant risk of fatal hepatotoxicity; (2) as such, Seattle Genetics had overstated the viability of vadastuximab talirine as a treatment for acute myeloid leukemia; and (3) as a result, defendants' public statements about Seattle Genetics' business, operations, and prospects, were false and misleading and/or lacked a reasonable basis. When the true details entered the market, the lawsuit claims that investors suffered damages. A class action lawsuit has already been filed. If you wish to serve as lead plaintiff, you must move the Court no later than March 13, 2017. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to http://rosenlegal.com/cases-1020.htmlor to discuss your rights or interests regarding this class action, please contact Phillip Kim, Esq. or Kevin Chan, Esq. of Rosen Law Firm toll free at 866-767- 3653 or via e-mail at pkim@rosenlegal.com or kchan@rosenlegal.com. Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. SEDGWICK: Female Partner Files Amended Gender Bias Class Action --------------------------------------------------------------- Sanford Heisler, LLP on Jan. 11 disclosed that it filed an Amended Complaint in arbitration in the gender discrimination class and collective action, Ribeiro v. Sedgwick, LLP (in arbitration as Sedgwick, LLP v. Ribeiro). On her own behalf and on behalf of female Sedgwick attorneys, Ms. Ribeiro, a high-performing, non-equity Partner at Sedgwick, alleges that Sedgwick engaged in systemic pay and promotion discrimination and thereby violated Title VII, the Equal Pay Act, and analogous state laws. Ms. Ribeiro seeks to represent a class of all female attorneys other than equity Partners and who are, have been or will be employed by Sedgwick in the United States. The Amended Complaint adds allegations of discrimination and retaliation based on facts that occurred since the filing of the original complaint, including the promotion of two men, both of whom were objectively less-qualified than Ms. Ribeiro, to equity Partner. Sedgwick denied Ms. Ribeiro promotion to equity Partner each year, from 2013 through the present. The Amended Complaint also demands $200 Million in lost wages and compensatory and punitive damages. Procedural History of the Litigation Ms. Ribeiro filed her claims in state court in San Francisco, but the case was removed to the Northern District of California (3:16- CV-04507). On August 23, 2016, Sedgwick moved to enforce an arbitration provision included in the Partnership agreement Ribeiro was required to sign as a condition of becoming a non- equity Partner. Judge William Alsup found the agreement required the parties to arbitrate whether the case itself should be arbitrated. Judge Alsup expressed regret that Ms. Ribeiro's case was relegated to arbitration, a forum with limited discovery and appellate review, but concluded that he was bound by federal precedent. Judge Alsup ordered the case to arbitration, leaving to the arbitrator the question of whether the case would remain there or proceed in federal court. In December, JAMS Arbitrator Honorable Robert A. Baines (Ret.) heard and granted Sedgwick's motion to compel arbitration of the claims. Judge Baines found that Ms. Ribeiro had "established both the requisite procedural unconscionability (based on the take-it- or-leave-it presentation of the Partnership Agreement in a setting of unequal bargaining power) and [. . .] shown that several provisions in the arbitration agreement are substantively unconscionable[. . .]" As a condition of compelling arbitration, Judge Baines ordered the removal of several of the terms contained in the mandatory arbitration provision. These unconscionable provisions included "the use of the JAMS Comprehensive Arbitration Rules (which includes a provision for cost-sharing of arbitration costs, as does the arbitration agreement itself), the ninety-day 'statute of limitations' for filing claims, and the requirement that the hearing commence within ninety days of the appointment of the arbitrator." In essence, Judge Baines found these provisions so one-sided and unfair that they could not be enforced, and struck them from the agreement. Judge Baines also ordered that the case will be administered under the JAMS Employment Arbitration Rules and Procedures. The Amended Complaint The Amended Complaint charges that Sedgwick's male-dominated leadership and opaque compensation and promotion policies have produced stark disparities for female attorneys throughout the firm. The Amended Complaint refines the original class to include California and Illinois subclasses and adds a claim that Sedgwick's systemic discrimination against the California Class unjustly enriched the firm in violation of the California Unfair Competition Law. "Ms. Ribeiro is the perfect example of an outstanding employee who -- because of her gender -- has been denied fair compensation, equity status, and proper recognition" said David Sanford -- dsanford@sanfordheisler.com -- Chairman of Sanford Heisler, LLP, the firm that has taken over the matter as lead counsel. Ms. Ribeiro has been a non-equity Partner at Sedgwick for 5 years and one of Sedgwick's top performers since joining the firm in 2011. She has been passed over for promotion to equity Partner repeatedly in favor of less-qualified men, each of whom generated revenue that was a fraction of her own. Ms. Ribeiro also claims she has been paid substantially less as a percentage of her revenues than male partners and less than she would earn were she an equity Partner. Significantly, Ms. Ribeiro has faced retaliation for her efforts to obtain gender equity for herself and other women at the firm. According to the Amended Complaint, Sedgwick not only promotes men at higher rates than women, but also maintains a lower bar for male promotions, given that men are promoted with less experience and less business. At the same time, these men are given substantial leadership positions throughout the Firm. "Arbitration agreements, like Sedgwick's, are too often used by companies to deter employees from seeking the justice they deserve," said Xinying Valerian -- xvalerian@sanfordheisler.com -- Senior Litigation Counsel at Sanford Heisler, LLP. "The Arbitrator's decision shows that despite her partner title, Ms. Ribeiro should be able to avail herself of the fairness protections in the arbitration process that all employees are entitled to." This case comes at a time when female attorneys continue to face strong headwinds. Despite the fact that almost 45% of big law associates are women, female attorneys account for only 18 percent of equity partner positions, according to a survey published in 2016 by the American Bar Association. Furthermore, a 2016 study of partner compensation from Major, Lindsey & Africa found that the average compensation for male law partners is about 44% higher than that of female partners: $949,000 vs. $659,000 -- a differential largely due to male partners receiving more credit for rainmaking than do female partners under an old-boys'-club regime. Ms. Ribeiro's Amended Complaint highlights some of these issues. "The facts in this case point to systemic gender inequality which, unfortunately, is nothing new in the legal field," said Sanford Heisler, LLP's San Francisco Managing Partner, Felicia Medina. "It is up to firms like Sedgwick to address these problems head on. Until then, you can expect to hear from courageous women like Ms. Ribeiro." About Sanford Heisler, LLP Sanford Heisler, LLP is a public interest class-action litigation law firm with offices in New York, Washington, D.C, San Francisco and San Diego. The Firm specializes in civil rights and general public interest cases, representing plaintiffs with employment discrimination, labor and wage violations, predatory lending, whistleblower, consumer fraud, and other claims. Along with a focus on class actions, the firm also represents individuals and has achieved particular success in the representation of executives in employment disputes. For more information go to http://www.sanfordheisler.com/or call 202 499-5200 or email dsanford@sanfordheisler.com. SERVIS ONE: McCamis Seeks Class Certification Under FCCPA & FDCPA ----------------------------------------------------------------- Ronnie J. McCamis moves for entry of an order certifying the case titled RONNIE J. MCCAMIS v. SERVIS ONE, INC. d/b/a BSI FINANCIAL SERVICES, INC., Case No. 8:16-cv-01130-JSM-AEP (M.D. Fla.), as a class action. The Plaintiff has sued Servis One, Inc., for violation of the Florida Consumer Collection Practices Act and the Fair Debt Collection Practices Act, based on the Defendant's alleged practice of sending collections communications regarding mortgage debts that were discharged in bankruptcy to numerous consumers. The Plaintiff asks that the Court certify this class: All individuals who: (1) filed a Chapter 7 or Chapter 13 bankruptcy in the Middle District of Florida, (2) surrendered their home in the bankruptcy proceedings, (3) obtained a discharge, and (4) after they received the discharge, received communications related to the discharged mortgage from or on behalf of Servis One, Inc., d/b/a BSI Financial Services, Inc., on or after May 6, 2014. Mr. McCamis further asks that he be designated as representative of the Class and his Counsel be named Class Counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=l1ULogzN The Plaintiff is represented by: Katherine Earle Yanes, Esq. KYNES, MARKMAN & FELMAN, P.A. Post Office Box 3396 Tampa, FL 33601-3396 Telephone: (813) 229-1118 Facsimile: (813) 221-6750 E-mail: kyanes@kmf-law.com - and - Gus M. Centrone, Esq. Brian L. Shrader, Esq. CENTRONE & SHRADER, LLC 612 W. Bay Street Tampa, FL 33606 Telephone: (813) 360-1529 E-mail: gcentrone@centroneshrader.com bshrader@centroneshrader.com The Defendant is represented by: J. Kirby McDonough, Esq. S. Douglas Knox, Esq. Zachary S. Foster, Esq. QUARLES & BRADY LLP 101 East Kennedy Boulevard, Suite 3400 Tampa, FL 33602 Telephone: (813) 384-6711 Facsimile: (813) 384-6862 E-mail: Kirby.McDonough@quarles.com Doug.Knox@quarles.com Zachary.Foster@quarles.com SOLERA HOLDINGS: Chancellor Grants Motion to Dismiss Class Action ----------------------------------------------------------------- Joanna Diakos, Esq., and Max E. Kaplan, Esq., of K&L Gates, in an article for The National Law Review, report that by memorandum- opinion dated January 5, 2017, Chancellor Bouchard granted defendants' motion to dismiss a putative class action complaint in In re Solera Holdings, Inc. Stockholder Litigation. Specifically, the Court held that absent allegations specifically identifying material deficiencies in the operative disclosure documents, ratification by a majority of disinterested stockholders rendered defendant-directors' approval of a merger subject to the business judgment rule. In Re Solera Holdings, Inc. Stockholder Litig., C.A. No. 10485-CB (Del. Ch. Jan. 5, 2017). Plaintiffs, former stockholders of Solera Holdings, Inc. ("Solera") brought this action for breach of fiduciary duty against the eight directors of Solera, seven of whom were outside directors, alleging that the board improperly favored the interests of the company's founder and upper management in approving its merger with a private equity firm, failed to establish an effective Special Committee or to obtain the highest price possible for Solera, implemented preclusive deal protection devices, and failed to disclose material information about the value of Solera's stock. Facing dismissal, plaintiffs argued that the defendants' actions throughout the merger process- -including while eliciting stockholder approval--called for enhanced scrutiny under Revlon and its progeny. Relying on the Supreme Court of Delaware's decision in Corwin v. KKR, 125 A.3d 304 (Del. 2015), Chancellor Bouchard rejected plaintiffs' broad application of Revlon. Instead, the Court held that, Revlon was "primarily designed to give stockholders and the Court of Chancery the tool of injunctive relief to address important M&A decisions in real time, before closing and was not a tool designed with post-closing money damages in mind." Absent special circumstances subject to the "entire fairness" standard, a completed merger approved by a "fully informed, uncoerced vote of disinterested stockholders" is always subject to the business judgment rule. Further, while a board hoping to "secure the cleansing effect" of a stockholder vote must eventually show the vote was fully informed, "a plaintiff challenging the decision to approve a transaction must first identify a deficiency in the operative disclosure document." In other words, to survive a motion to dismiss, a stockholder-plaintiff must allege specific and material omissions or misstatements tainting the stockholder ratification. Once the plaintiff has done so the burden falls on the defendants to establish that the alleged deficiency fails as a matter of law in order to secure the cleansing effect of the vote. In this case, the Court rejected plaintiffs' alleged deficiencies in the directors' disclosures. Under Delaware law, information is material only if a reasonable stockholder would conclude it significantly alters the "total mix" of information made available--alleged "troubling facts" regarding the directors' behavior is wholly insufficient. Applying this standard, Chancellor Bouchard concluded that in each case the alleged deficient information was either directly disclosed in the pertinent proxy statement, incorporated therein by reference, or otherwise wholly immaterial. While the Chancery Court's decision reinforces the cleansing power of stockholder ratification, a less comprehensive proxy statement could have lost the Solera directors the protection of the business judgment rule. Above all else, In re Solera is a lesson in how proper drafting of disclosure statements can lessen litigation exposure following a merger. SQUIP INC: Certification of Rule 23 Class Sought in Freed Suit -------------------------------------------------------------- The Plaintiff in the lawsuit styled DR. WILLIAM FREED d/b/a FREED CHIROPRACTIC CENTER, a Connecticut individual, individually and as the representative of a class of similarly-situated persons v. SQUIP, INC., a New Jersey corporation, and JOHN DOES 1-5, Case No. 3:17-cv-00013-SRU (D. Conn.), moves the Court for an order: A. taking the motion under submission and deferring further activity on it until after the discovery cutoff date to be set in the Court's upcoming scheduling order under Rule 23 of the Federal Rules of Civil Procedure, or alternatively; B. granting the Plaintiff's motion for class certification pursuant to Rule 23 of the Federal Rules of Civil Procedure. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=PvuMZ94H The Plaintiff is represented by: Aytan Y. Bellin, Esq. BELLIN & ASSOCIATES LLC 85 Miles Avenue White Plaines, NY 10606 Telephone: (914) 358-5345 Facsimile: (212) 571-0284 E-mail: Aytan.Bellin@bellinlaw.com - and - Brian J. Wanca, Esq. ANDERSON + WANCA 3701 Algonquin Road, Suite 500 Rolling Meadows, IL 60008 Telephone: (847) 368-1500 Facsimile: (847) 368-1501 E-mail: bwanca@andersonwanca.com STAPLES: Settles Class Action Over Deceptive Rewards Program ------------------------------------------------------------ Ronald R. Urbach, Esq. -- rurbach@dglaw.com -- and Paavana L. Kumar, Esq. -- pkumar@dglaw.com -- of Davis & Gilbert, in an article for Mondaq, report that Staples has agreed to pay $2 million to end a class action filed in California federal court alleging that the company engaged in deceptive rewards program practices. In particular, the class action alleged that Staples misled consumers with respect to how (and how many) rewards points will be accrued when consumers apply coupons to their transactions. The high value settlement for the retailer illustrates the importance of having clear and transparent terms and conditions in place for rewards programs, and the need to align actual rewards redemption practices with both the terms as well as general advertising for the program. Rewards Programs Rewards programs -- generally, programs that reward consumers with incentives or other benefits for remaining a consumer and continuing to make purchases or bookings -- are an increasingly popular mechanism to earn and retain consumer loyalty. The most "traditional" types of loyalty programs, such as recurring discount or point programs whereby consumers can earn credit toward future purchases, are not expressly regulated by state or federal laws. Instead, these types of programs are largely governed by contract law (the terms and conditions of the program typically serve as the contract between the participant and the brand or sponsor) and truth-in-advertising law (whereby the laws would require what is being said about the program be fair and non-deceptive). As such, the best practices for such programs typically include taking steps to make it clear and transparent to the consumer as to how the rewards will be earned and further, how they can be redeemed. The terms and conditions of such programs should generally outline the terms of the program and the rights and obligations of the company and consumer. The Staples Settlement The program at issue in this class action, Staples Rewards, is a customer incentive program that allows customers to build credit towards future purchases by buying certain qualifying items. Credit is calculated as a percentage of the dollar amount of qualifying purchases. However, plaintiff Neil Torczyner alleged on behalf of the class that when consumers used coupons for purchases, Staples spread out the value of the coupon over the entire transaction on a pro rata basis, rather than applying the coupon only to the item the coupon was intended for. This therefore limited the number of points the consumer could collect in Staples Rewards credit for qualifying items not impacted by the coupon. For example, when Mr. Torczyner used a coupon for a package of water bottles, the coupon took $1.50 off the cost of the water itself, making it a non-qualifying purchase for rewards points purposes. Those points, Mr. Torczyner alleged, should have been eligible for future purchases at Staples stores, as implied by the company's advertising for the rewards program and the terms of the program. As a result of the action, Staples has agreed to change its terms and conditions for product-specific coupons to make it clear how they impact the rewards program. Further, under the terms of the proposed preliminary settlement, Staples will make a payment of $10 to each affected class member who filed a valid claim (a high value per claimant, with actual damages estimated at $2 per class member). Best Practices The case and ensuing settlement are a key illustration of the importance of establishing clear, comprehensive and consistent terms for rewards programs that effectively communicate to the consumer any limits on how the rewards can be redeemed. Regulatory guidance (such as guidance from the National Association of Attorneys General on frequent flyer programs, which is often cited as the reasonable model for rewards programs) emphasizes that the terms for any such program must include conspicuous disclosures for restrictions on use and redemption, and that the terms themselves must be clearly and conspicuously disclosed prior to consumer enrollment. It is also important to have clear consumer- facing terms and conditions in place, and to abide by those terms and conditions, to avoid claims arising out of federal and state false advertising and consumer protection laws. STARBUCKS CORP: Sued Over Failure to Provide Proper Meal Periods ---------------------------------------------------------------- Jenie Mallari-Torres, writing for Northern California Record, reports that a former Starbucks employee claims she was denied proper meal periods and has filed a class action. Kileigh Carrington filed a complaint on behalf of individually and on behalf of other members of the general public similarly situated on Dec. 21 in the U.S. District Court for the Southern District of California against Starbucks Corp. and Does 1-10 alleging violation of state labor codes. According to the complaint, the plaintiffs allege that she was employed by the defendants and continuously worked beyond five hours without being provided any meal and rest periods or an additional hour of pay as meal period penalty. As a result, the plaintiff alleges she suffered injury, loss and harm. The plaintiffs hold Starbucks Corp. and Does 1-10 responsible because the defendants allegedly denied proper meal periods or meal period penalties and denied wages earned and the right to collect unemployment insurance benefits. The plaintiffs request a trial by jury and seek enjoin defendants from pursuing their fraudulent policies, acts and practices; maintain "opt-out" class action; compensatory and statutory damages; penalties and restitution; attorney's fees and costs; interest and further relief as the court deems just. She is represented by William B. Sullivan, Erick K. Yaeckel -- Yaeckel@sullivanlawgroupapc.com -- and Clint S. Engleson of Sullivan Law Group in San Diego. U.S. District Court for the Southern District of California Case number 3:16-cv-03074 STONEMOR PARTNERS: Lead Plaintiff Bid Deadline Set for Jan. 20 -------------------------------------------------------------- Faruqi & Faruqi, LLP, a leading national securities law firm, reminds investors in StoneMor Partners L.P. of the January 20, 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 Eastern District of Pennsylvania on behalf of all those who purchased StoneMor stock or options between January 19, 2012 and October 27, 2016. The case, ANDERSON v. STONEMOR PARTNERS, L.P. et al, No. 16-cv-06111 was filed on November 23, 2016, and has been assigned to Judge Eduardo Robreno. The lawsuit focuses on whether the Company and its executives violated federal securities laws by making and providing financial statements based on misleading non-GAAP financial presentations in order to falsely mislead investors into purchasing the Company's equity units. First, on October 27, 2016, StoneMor was forced to materially cut its distribution in half since no new capital had been infused into the Company. This came after an announcement on September 2, 2016, in which the Company stated that it would have to correct various errors in its financial statements due to using potentially financially misleading metrics. After the announcement, StoneMor's share price fell from $24.82 per share on October 27, 2016 to a closing price of $13.74 on October 28, 2016 -- a $11.08 or a 44.6% drop. Then, on November 9, 2016, StoneMor filed a Form 8-K with the Securities and Exchange Commission ("SEC") announcing that it would have to amend its "Form 10-K for [the] fiscal year ended December 31, 2015, and its Forms 10-Q for the quarterly periods ended June 30, 2016 and March 31, 2016." As a reason for the amendments, the Company cited the SEC's review which required the Company to discontinue the use of non-GAAP measures, such as Adjusted EBITDA, as performance metrics in its financial statements. After the announcement, StoneMor's share price fell from $9.03 per share on November 8, 2016 to a closing price of $8.57 on November 9, 2016 -- a $0.46 or a 5.1% drop. Request more information now by clicking here: www.faruqilaw.com/STON. There is no cost or obligation to you. Take Action If you invested in StoneMor stock or options between January 19, 2012 and October 27, 2016 and would like to discuss your legal rights, visit www.faruqilaw.com/STON. 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 StoneMor'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. Attorney Advertising. The law firm responsible for this advertisement is Faruqi & Faruqi, LLP (www.faruqilaw.com). Prior results do not guarantee or predict a similar outcome with respect to any future matter. We welcome the opportunity to discuss your particular case. All communications will be treated in a confidential manner. FARUQI & FARUQI, LLP 685 Third Avenue, 26th Floor New York, NY 10017 Attn: Richard Gonnello, Esq. E-mail: rgonnello@faruqilaw.com Telephone: (877) 247-4292 or (212) 983-9330 SYNUTRA INTERNATIONAL: TheGrantLawFirm Files Class Action --------------------------------------------------------- TheGrantLawFirm, PLLC on Jan. 10 disclosed that it filed a class action complaint ("Complaint") on behalf of all public stockholders of Synutra International, Inc. ("Synutra" or the "Company") who are or will be damaged by a vote approving a proposed transaction (the "Proposed Transaction", the "Class") pursuant to which Synutra will be acquired by Liang Zang ("Zang"), its founder, the chairman of its board and its controlling shareholder, through Beams Power Investment Limited ("Beams"), an entity owned by his wife. Excluded from the Class are defendants, and any person, firm, trust, corporation or other entity related or affiliated with any of the defendants. The Complaint asserts claims pursuant to Section 14(a) of the 1934 Act and for breaches of fiduciary duty alleging that the Preliminary Proxy Statement (the "Proxy") filed with the SEC on December 9, 2016, a final version of which will be used to solicit shareholder approval of the Proposed Transaction, contains materially false and misleading statements and omissions of material fact. Specifically, the Complaint asserts that the Proxy omits material information concerning the Company's projections, its operating income, its unlevered free cash flow, its earnings per share, and its free cash flow per share, and that the description of the fairness analysis performed by the Company's investment advisor fails to disclose certain material information and is based upon a market multiples analysis of companies which purport to be peer companies, but are not traded on a U.S. exchange, unlike the Company which trades on the NASDAQ. If you are a member of the Class described above, you may, no later than March 13, 2017, move the Court to serve as lead plaintiff. In order to serve as lead plaintiff, you must meet certain legal requirements. A lead plaintiff is a representative party that acts on behalf of other class members in directing the litigation. In order to be appointed lead plaintiff, the Court must determine that the class member's claim is typical of the claims of other class members, and that the class member will adequately represent the class. Under certain circumstances, one or more class members may together serve as "lead plaintiff." Your ability to share in any recovery is not, however, affected by the decision whether or not to serve as a lead plaintiff. You may retain the TheGrantLawFirm, PLLC, or other counsel of your choice, to serve as your counsel in this action. Lynda J. Grant of TheGrantLawFirm, PLLC has been actively representing shareholders for over 30 years. If you wish to discuss this action or have any questions concerning this notice or your rights or interests with respect to these matters, please contact Lynda J. Grant at 212-292-4441 or via e-mail at lgrant@grantfirm.com. You can also visit our website at www.grantfirm.com TD BANK: $20 Overdraft Charge Sparks Class Action ------------------------------------------------- Greg Adomaitis, writing for NJ.com, reports that a lawsuit filed earlier this month is challenging the sustained overdraft charge of $20 that's imposed on TD Bank customers after an initial $35 overdraft fine itself. The class action lawsuit filed Jan. 4 on behalf of Shaina Dorsey by Marlton-based lawyer Stephen DeNittis claims the fee exceeds the limit permitted by the National Bank Act. TD Bank, which has its U.S. headquarters in Cherry Hill, declined to comment on Jan. 10 on the pending litigation. TENNESSEE: Groups Challenge Driver's License Law ------------------------------------------------ The Daily News reports that justice reform groups are challenging a Tennessee law they say unfairly punishes the poor by revoking driver's licenses due to unpaid court fines. The National Center for Law and Economic Justice and other groups filed a lawsuit in Nashville federal court against Gov. Bill Haslam, Attorney General Herbert Slatery and other state officials, The Tennessean reported. The lawyers are seeking class-action status and name two Nashville men, James Thomas and David Hixon, as lead plaintiffs. Thomas, who is homeless and disabled, is barred from getting a driver's license because he has been unable to pay $290 in court fines, the lawsuit said. Davidson County court records show he owes about $470 more for a dismissed theft charge and second trespassing conviction. "These are not people who are running out on their debts," said Claudia Wilner -- info@nclej.org -- an attorney with the National Center for Law and Economic Justice. "It's people who can't afford to pay, and it's not their fault they can't." Since the law went into effect in 2012, only 7 percent of people who lost their licenses because of unpaid fines have been able to get them back, the lawsuit said. Republican Sen. Jack Johnson, of Franklin, said he sponsored the bill at the request of court clerks who were struggling to collect fines. The issue has spawned similar lawsuits in other states, including Virginia and California, according to Wilner. But she said Tennessee's law is unique in that it requires no notice to an individual whose license is being revoked. The lawsuit asks U.S. District Judge Aleta Trauger in Nashville to declare the law unconstitutional, reinstate licenses that have been revoked under the statute and waive reinstatement fees. A spokesman for Slatery said the attorney general's office is reviewing the lawsuit. TIBET PHARMACEUTICALS: June 6 Settlement Fairness Hearing Set ------------------------------------------------------------- The Rosen Law Firm, P.A. on Jan. 9 disclosed that the United States District Court for the District of New Jersey has approved the following announcement of a proposed class action settlement that would benefit purchasers of common stock of Tibet Pharmaceuticals, Inc. (TBET): LEGAL NOTICE If you bought Tibet Pharmaceuticals, Inc. stock between January 24, 2011 and April 3, 2012, you could get a payment from a class action settlement. A settlement has been proposed in a class action lawsuit about the price of Tibet Pharmaceuticals, Inc. ("Tibet" or the "Company") common stock. The settlement will pay $2,075,000 to pay claims from Tibet investors who bought the Company's common stock pursuant or traceable to Tibet's Registration Statements and Prospectus issued in connection with Tibet's Initial Public Offering of Stock ("IPO") on or about January 24, 2011 or 2) purchased or otherwise acquired Tibet common stock from January 24, 2011 to April 3, 2012, both dates inclusive. If you qualify, you may send in a claim form to get benefits, or you can exclude yourself to the settlement, or object to it. The United States District Court for the District of New Jersey authorized this notice. Before any money is paid, the Court will have a hearing to decide whether to approve the settlement. If You submitted a valid and timely proof of claim form in the Settlement with Anderson & Strudwick, You are automatically eligible for recovery in this case without needing to submit another proof of claim and release form. To find out if you previously submitted a valid proof of claim form in the Anderson & Strudwick Settlement, Contact the Claims Administrator at (866) 274-4004. WHO'S INCLUDED? You are a class member and could get benefits if you bought shares of Tibet stock from January 24, 2011 through April 3, 2012. You are a Class Member only if you bought shares of Tibet stock individually not simply through a mutual fund. Tibet's officers and directors, as well as immediate family members of directors of Tibet are not Class Members. Contact your broker to see if you had shares of Tibet stock. If you're not sure you are included you can get more information, including a detailed notice, at www.strategicclaims.net or by calling toll free 866-274-4004. WHAT'S THIS ABOUT? The lawsuit claims that Tibet solicited investors for its IPO with a registration statement and prospectus that contained false financial information about Tibet, because, among other reasons, Tibet was insolvent at the time of the IPO, the lawsuit alleges that Tibet's auditor Acquavella, Chiarelli, Shuster & Berkower, LLP ("ACSB") failed to conduct a proper audit of Tibet's financial statements contained in the Registration Statement. ACSB denies that it did anything wrong. The Court did not decide which side was right. But both ACSB and Plaintiffs agreed to the settlement to resolve the case as to ACSB and get benefits to investors. Plaintiffs and ACSB, disagree on how much money could have been won if the investors had won at a trial. WHAT DOES THE SETTLEMENT PROVIDE? ACSB agreed to create a fund of $2.075 million to be divided among all Class Members who send in valid claim forms. A Stipulation of Settlement, available at www.strategicclaims.net, describes all of the details about the proposed settlement. Your share of the fund will depend on the number of valid claim forms that Class Members send in, how many shares of Tibet stock you bought, and when you bought and sold them. Generally, if you bought more shares and have more Recognized Losses (as explained in the detailed notice), you will get more money. If you bought fewer shares and have fewer Recognized Losses, you will get less. All of the $2.075 million will be paid out. If every eligible Class Member sends in a valid claim form the average payment will be $0.14 per share for each share of Tibet stock outstanding as of April 3, 2012, before deduction of attorneys' fees, and expenses and approximately $0.08 per share after deduction of attorneys' fees and expenses. The number of claimants who send in claims varies widely from case to case. If less than 100% of the Class sends in a claim form, you could get more money. Read More HOW DO YOU ASK FOR A PAYMENT? A detailed notice and claim form package contains everything you need. Just call 866-274-4004 or visit www.strategicclaims.net to get one. To qualify for a payment, you must send in a claim form unless you submitted one in the Anderson & Strudwick settlement. Claim forms must be submitted to the Claims Administrator by February 27, 2017. WHAT ARE YOUR OTHER OPTIONS? If you don't want to be legally bound by the settlement, you must exclude yourself by May 16, 2017, or you won't be able to sue or continue to sue ACSB about the legal claims in this case. If you exclude yourself, you can't get money from this settlement. If you stay in the settlement, you may object to it by May 23, 2017. The detailed notice explains how to exclude yourself or object. The Court will hold a hearing in this case (Dartell v. Tibet Pharmaceuticals, Inc. et al., Case No. 14-cv-3620) on June 6, 2017 to consider whether the approve the settlement and a request by the lawyers representing all Class Members (The Rosen Law Firm, PA, of New York, NY) for attorneys' fees of not more than one third of the Settlement Amount or $691,667, reimbursement of total litigation expenses of no more than $150,000, and an award to the Class Plaintiffs not to exceed $30,000 (or $5,000 for each of the six Class Plaintiffs). Collectively, the attorneys' fees and expenses are estimated to average $0.058 per share of Tibet Stock. You may ask to appear at the hearing but you don't have to. For more information, call toll free 866-274-4004, visit the website at www.strategicclaims.net., or write to Dartell v. Tibet Pharmaceuticals, Inc. et al, c/o Strategic Claims Services, P.O. Box 230, 600 N. Jackson St., Ste. 3, Media, PA 19063. TILE SHOP: Excessive Deduction Class Certified in "Osorio" Suit --------------------------------------------------------------- The Hon. Matthew F. Kennelly grants in part and denies in part the Plaintiff's motion for class certification filed in the lawsuit styled ADRIEL OSORIO, on behalf of himself and all similarly situated persons v. THE TILE SHOP, LLC, Case No. Case No. 15 C 15 (N.D. Ill.). Adriel Osorio worked for The Tile Shop, LLC as a sales associate in its Skokie, Illinois retail store. He alleges that Tile Shop failed to pay overtime wages in violation of the Fair Labor Standards Act and the Illinois Minimum Wage Law. He also alleges that Tile Shop made excessive deductions from its employees' wages in violation of the Illinois Wage Payment and Collection Act. The Court declines to certify the proposed unpaid overtime class proposed by the Plaintiff but certifies the proposed excessive deduction class under Rule 23(b)(3) of the Federal Rules of Civil Procedure, defined as: All persons employed in a Tile Shop retail store in the State of Illinois, except store managers, who had a deduction made to a paycheck received at any time from January 2, 2005 up to and including the date of trial, in order to recoup a cash advance where the deduction was in excess of 15% of the gross pay received in that paycheck. Judge Kennelly appoints Mark Bulgarelli, Esq., and Ilan Chorowsky, Esq., as counsel for the plaintiff class. A copy of the Memorandum Opinion and Order is available at no charge at https://goo.gl/VII39Z from Leagle.com. The Plaintiff is represented by: Mark Anthony Bulgarelli, Esq. Ilan Chorowsky, Esq. PROGRESSIVE LAW GROUP, LLC 1 N. LaSalle St. Chicago, IL 60602 Telephone: (312) 787-2717 Facsimile: (888) 574-9038 E-mail: markb@progressivelaw.com ichorowsky@gmail.com The Defendant is represented by: Jonathan Hale Claydon, Esq. Michael Dean Karpeles, Esq. GREENBERG TRAURIG, LLP 77 West Wacker Drive, Suite 3100 Chicago, IL 60601 Telephone: (312) 456-8400 Facsimile: (312) 456-8435 E-mail: claydonj@gtlaw.com karpelesm@gtlaw.com - and - Joseph Michael Sokolowski, Esq. Krista A.P. Hatcher, Esq. FREDRIKSON & BYRON, P.A. 200 South Sixth Street, Suite 4000 Minneapolis, MN 55402 Telephone: (612) 492-7714 Facsimile: (612) 492-7077 E-mail: jsokolowski@fredlaw.com khatcher@fredlaw.com TIMBERCORP GROUP: High Court Rules on Anshun Estoppel Issue ----------------------------------------------------------- John Emmerig, Esq. -- jemmerig@jonesday.com -- and Michael Legg, Esq. -- mlegg@jonesday.com -- of Jones Day, in an article for Lexology, report that the High Court of Australia in Timbercorp Finance Pty Ltd (in liq) v Collins [2016] HCA 44 determined that a class member in an unsuccessful class action, who later raised individual defences against a claim from a defendant to the original class action, was not precluded from raising them by reason of Anshun estoppel, nor were the defences an abuse of process. The statutory class action regimes in Australia are structured so that a representative party represents class members only with respect to the claim that is the subject of the class action -- the common issues -- but not with respect to their individual claims. The decision highlights the importance of framing the common questions in the class action, as they will determine the scope and extent of any claims that may survive the determination of a class action proceeding. Background A class action proceeding was brought against members of the Timbercorp Group in the Supreme Court of Victoria under Part 4A of the Supreme Court Act 1986 (Vic), following the collapse of that group in 2009. The class action was brought on behalf of about 18,500 investors who had invested in horticultural and forestry managed investment schemes ("MISs") operated by the Timbercorp Group during the relevant period. The claims in the class action proceeding concerned allegations of false or misleading statements and breaches of disclosure obligations under the Corporations Act 2001 (Cth). A member of the Timbercorp Group, Timbercorp Finance Pty Ltd ("Timbercorp Finance"), had made loans to some, but not all, of the investors who later comprised members of the class action so that they could invest in the MISs during the relevant period. After being placed into liquidation, the liquidators of Timbercorp Finance commenced proceedings against some borrowers to recover the loan amounts. Modest progress was made before the class action was filed. Timbercorp Finance then filed a counterclaim against the representative party in the class action for the recovery of loan amounts. Before hearings began, that Court directed that the counterclaim be tried separately and after the determination of the issues the subject of the class action proceeding. The class action proceeding was unsuccessful at first instance and on appeal. In 2014, with the counterclaim still unresolved, Timbercorp Finance commenced proceedings in the Supreme Court of Victoria against other borrowers, including Mr and Mrs Collins and Mr Tomes, to recover alleged loan amounts and interest. Mr and Mrs Collins and Mr Tomes had been members of the class action proceeding (but neither were the representative party or "lead plaintiff"). In the proceedings brought by Timbercorp Finance, Mr and Mrs Collins and Mr Tomes each sought to raise claims and defences challenging the validity and enforceability of the loan agreements that had not been raised in the class action proceeding. By order of the Court, the question whether Mr and Mrs Collins and Mr Tomes were precluded from raising any, and if so which, defences pleaded by them by reason of their participation as class members in the class action proceeding, was heard as a separate question. At first instance, Robson J held that the defendants were not precluded, by reason of Anshun estoppel, abuse of process or otherwise, from raising those defences. His Honour's decision was confirmed on appeal, but for different reasons. By grant of special leave, Timbercorp Finance appealed to the High Court of Australia. Reasoning The primary question for the High Court was whether an Anshun estoppel arose to prevent Mr and Mrs Collins and Mr Tomes from raising their respective defences. An Anshun estoppel "preclude[s] the assertion of a claim or of an issue of law or fact if the claim or issue was so connected to the subject matter of the first proceeding as to make it unreasonable, in the context of the first proceeding, for the claim or issue not to have been made or raised in it". It is an extension of "cause of action estoppel" (which operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment) and "issue estoppel" (which operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment). Neither cause of action estoppel nor issue estoppels was raised. Neither Mr and Mrs Collins nor Mr Tomes had been primary participants in the class action proceeding. However, a "person (the "second party") who seeks to make a claim in a later proceeding may be bound by the actions of a party in earlier proceedings if the party in those proceedings represented the second party such that they could be described as the privy in interest of the second party". The High Court had previously observed, albeit obiter, that a representative party and other members of a class in class action proceedings may be privies in interest for the purposes of estoppels. Nonetheless, the Court held that it still remained to be determined "the extent to which the plaintiff [representative party] in [class action] proceedings may be taken to represent the legal interest of the [class] members". The Court looked to the legislative scheme for class actions provided under Part 4A of the Supreme Court Act 1986 (Vic). In general, the Court observed that the statutory regime for class actions contemplated delineation of common and individual issues. The Court noted that sections 33C(1) and 33H provide a process for bringing class actions by which essential commonalities, including questions of law and fact common to the claims of the class members, needed to be specified. The Court also referred to another of its decisions, in which the Court held that "it was not necessary for a [class action] proceeding to be likely to resolve wholly, or even to any significant degree, the claims of all [class] members". The Court further noted that Part 4A recognises that class members may have other individual claims which do not form part of the subject matter of the class action. In that regard, the Court observed ss 33Q, 33R and other provisions provide for situations where there are non-common issues. The Court also remarked that Part 4A "creates its own kind of statutory estoppel" by which "[class] members are bound by the determination of the claims giving rise to the common questions". Accordingly, the Court held: The provisions of Pt 4A therefore confirm that a plaintiff in [class action] proceedings represents [class] members only with respect to the claim the subject of that proceeding, but not with respect to their individual claims. The lead plaintiff is not a privy in interest with respect to the respondents' [Mr and Mrs Collins' and Mr Tomes'] claims. This is so regardless of whether they should have been raised in the [class action] proceeding. That leaves for consideration the question whether the respondents themselves are estopped from raising them in these proceedings. Throughout the judgment, the Court was also minded by the relative lack of control that could be exercised by class members over the course of a class action proceeding. The Court went on to conclude that there was not the required connection between the common issues in the class action proceeding and the loan agreements the subject of Timbercorp Finance's recovery actions. The fact that directions were made at the beginning of the class action proceeding removing Timbercorp Finance's cross-claim for later determination served to reinforce the separateness of the issues the subject of each proceeding. As such, Mr and Mrs Collins and Mr Tomes were not privies in interest with the representative party in the class action proceeding in respect of their defences and were therefore not precluded from raising them by reason of Anshun estoppel. There was no need for them to have opted out of the class action or to have raised them separately in the course of the class action under s 33R at their own risk of cost. Finally, the Court briefly addressed Timbercorp Finance's submissions made in the alternative that the defences constituted an abuse of process. Consistently with the Court's reasoning regarding estoppel, the Court held that the statutory scheme for class actions contemplated the separation of common and individual issues and in doing so, efficiency in the court's processes was achieved. Accordingly, hearing of individual claims did not stand in the way of achieving judicial economy so as to act as a "damage to the administration of justice", and there was no abuse of process. The High Court dismissed the appeals with costs. Ramifications The High Court's decision in Timbercorp Finance Pty Ltd (in liq) v Collins [2016] HCA 44 highlights the significance of the common questions in a class action proceeding to both sides of the dispute and the class members. For the representative party, the common questions need to be adequately framed in order for it to satisfy the requirements for the commencement of a class action in ss 33C and 33H. The importance of the common questions, at least to the representative party, has been reiterated many times. For class members, the common issues will define the extent to which the representative party is their privy and the extent to which they will be bound by the judgment in the class action. The significance for the class members is mirrored by the significance for the defendant; the common questions will define the claims or issues on which the defendant loses or wins, which in turn informs liability. Courts may play a role in defining the common questions and can determine which issues are common. However, it will be in the interests of both sides of the dispute that the questions are properly framed. TRUEVISIONS: FongDi to Launch Class Action on Behalf of Customers ----------------------------------------------------------------- Kaewta Ketbungkan, writing for Khaosod English, reports that for dropping a bomb on its customers by announcing they could no longer get HBO and its affiliates on short notice, TrueVisions could be the first company to face a class-action lawsuit brought through recently launched legal startup FongDi. Winter came ahead of season for Thailand's "Game of Thrones" fans Jan. 1 when the satellite television operator replaced its 6 HBO channels with Warner TV, Paramount Channel HD, Celestial Classic Movies, Food Network, Fox Action Movies HD, Sony Channel and True Film HD 2 after it failed to renegotiate its licensing deals. The news was broken Dec. 26 by the National Broadcasting and Telecommunications, which gave TrueVisions the green light despite the fact it violated regulations by not giving 30 days notice. "Unlike Office of the Consumer Protection Board or Change.org, FongDi.com allows people to take concrete action," said Peerapat Foithong, lawyer and co-founder. "If people are affected from the same case, they can sue as a group through our site." Meant to increase consumer protections by providing a platform for people to come together for class-action suits, FongDi has made TrueVisions its first case. There, subscribers unsatisfied with TrueVision's service can put their names toward suing the company. More than 1,000 people have signed on so far. Peerapat was to attend a meeting on Jan. 10 between TrueVisions and the commission to request fee deductions of 200 baht to 500 baht per month for subscribers. They want the company to compensate those who canceled their subscriptions with money, not "True rewards" points. Depending on how that goes, a lawyer may be hired to take the case to court. "Class action lawsuits will save a lot of time and procedures in court, in cases where there are many people affected, such as this," Peerapat said. "Plus, we provide the service free of charge." Although class action lawsuits were made possible in 2015, not a single case has been taken to court so far. Peerapat said he wants the case to increase awareness of their legal rights. FongDi.com is a startup began by two lawyers, a programmer and marketing pro. Inspired by Peerapat's master's thesis and his experience once suing an auto company, FongDi is meant to help people fight for their rights and increase their knowledge about the law. On the site users will find information and illustrations featuring "Buddy" a dog in black suit. FongDi said the TrueVisions case has generated a lot of interest, and it is developing an English version of the page for all the expats who have been visiting the site looking to participate. Meanwhile, feel free to contact them via Facebook. UNITED RECOVERY: Class Certification Sought in "Merkovich" Suit --------------------------------------------------------------- Patricia Merkovich moves the Court to certify the class described in the lawsuit captioned PATRICIA MERKOVICH, Individually and on Behalf of All Others Similarly Situated v. UNITED RECOVERY SYSTEMS, LP, Case No. 2:17-cv-00005-DEJ (E.D. Wisc.), and further asks that the Court both stay the motion for class certification and to grant the Plaintiff (and the Defendant) relief from the Local Rules setting automatic briefing schedules and requiring briefs and supporting material to be filed with the Motion. Damasco and decisions like it imposed significant burdens on the Court and on Plaintiff's Counsel, the Plaintiff asserts, citing Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. 2011),zoverruled, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit in Damasco instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion until discovery could commence, Ms. Merkovich states. She contends that she is obligated to move for class certification to protect the interests of the putative class. The Supreme Court's decision in Campbell-Ewald Co. v. Gomez, 2016 U.S. LEXIS 846 *14-15 (U.S. Jan. 20, 2016) (internal citations omitted) and Chapman should have put a stop to this practice. Unfortunately, they have not, the Plaintiff notes. In dicta, the Supreme Court left open the possibility that a defendant facing a class action complaint could moot a class representative's case by depositing funds equal to or in excess of the maximum value of the plaintiff's claim with the court and having the court enter judgment in the plaintiff's favor prior to a class certification motion. Campbell-Ewald Co., 2016 U.S. LEXIS 846 *19 ("We need not, and do not, now decide whether the result would be different if a defendant deposits the full amount of the plaintiff's individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount."). As the Motion is a placeholder motion as described in Damasco, the parties and the Court should not be burdened with unnecessary paperwork and the resulting expense when a one paragraph, single page motion to certify and stay should suffice until an amended motion is filed, the Plaintiff contends. Ms. Merkovich also asks the Court to appoint her as class representative and appoint Ademi & O'Reilly, LLP as class counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=0mihXfU3 The Plaintiff is represented by: Shpetim Ademi, Esq. John D. Blythin, Esq. Mark A. Eldridge, Esq. Denise L. Morris, Esq. ADEMI & O'REILLY, LLP 3620 East Layton Avenue Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: sademi@ademilaw.com jblythin@ademilaw.com meldridge@ademilaw.com dmorris@ademilaw.com UNITED RESOURCE: Wins Final Approval of "Kopchak" Suit Settlement ----------------------------------------------------------------- The Hon. Mitchell S. Goldberg entered a final approval order granting the parties' joint motion for final approval of class settlement agreement and release in the lawsuit captioned KIMBERLY KOPCHAK, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED v. UNITED RESOURCE SYSTEMS, et al., Case No. 5:13-cv-05884-MSG (E.D. Pa.). This Settlement Class is certified pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure: All consumers in the Commonwealth of Pennsylvania to whom URS mailed an initial written communication in connection with its attempt to collect a debt, which failed to inform consumers they must dispute their debts in writing to be considered valid, during the period beginning October 4, 2012, and ending May 8, 2015. Judge Goldberg ordered the Clerk of Court to mark the case closed. Upon the Effective Date of the Agreement, URS will, among other things, make these payments: (a) URS will create a class settlement fund of $7,500 ("Class Recovery"), which the Settlement Administrator will distribute pro rata among those Class Members, who received the notice and did not exclude themselves; (b) URS will pay the Plaintiff $2,500; and (c) URS will pay Class Counsel $25,000 for their attorneys' fees and costs incurred in the action. A copy of the Final Approval Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=YxNMgn4U UNITED STATES: Files Motion to Dismiss H-2b Visa Case in Guam ------------------------------------------------------------- Ken Quintanilla at Kuam News reports that with just a week remaining until a class action lawsuit over the denial of H-2b visas is heard in the District Court of Guam, the federal government has filed a motion to dismiss the plaintiffs amended complaint entirely, essentially closing the case. The Guam Contractors Association and about one dozen local companies are taking the feds to court over the denial of foreign work visas. The Guam Department of Labor has experienced a nearly-100% denial rate over the past year. As of November, DOL reports a drop in H- 2b workers from 1,200 to about 470 workers. The numbers are expected to drop even more one December figures are finalized. Meanwhile, the hearing on the case is set for January 17 at 12:30pm before Magistrate Judge Joaquin Manibusan. US BANK: Status Hearing in "Snyder" Class Suit Set for March 8 -------------------------------------------------------------- The Hon. Thomas M. Durkin scheduled a status hearing for March 8, 2017, at 9:00 a.m., in the lawsuit entitled Keith Snyder, et al. v. U.S. Bank, et al., Case No. 1:16-cv-11675 (N.D. Ill.). A joint status report is to be filed on or before March 2, 2017. Judge Durkin urged counsel for the parties to undertake serious settlement efforts before the scheduled Status Hearing when no major investment in counsel's time (and client's money) has yet taken place. "If such efforts are unsuccessful, counsel should be prepared to attend the scheduled Status Hearing to discuss briefly their proposed discovery plan and other subjects appropriate for inclusion in the scheduling order as referred to in Rule 16(b)," Judge Durkin stated. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=OAWpSKoM VOLKSWAGEN: Faces Suit From British Motorists Over Dieselgate ------------------------------------------------------------- Rob Davies at The Guardian reports that thousands of British motorists have launched a lawsuit against Volkswagen over the "dieselgate" emissions scandal, in a claim that could end up costing the carmaker billions of pounds. The group of 10,000 VW owners has filed a class action lawsuit against the German car firm, seeking GBP30 million, or GBP3,000 each. The chair of a parliamentary committee on the environment and consumer group Which? both welcomed the claim, which VW said it would "robustly" contest. If the company had to pay GBP3,000 to each of the 1.2 million people who own affected cars, including its Skoda, Audi and Seat marques, it would cost about GBP3.6bn. The German firm has yet to reach a settlement with British and European owners affected by the scandal, in which the company admitted using "defeat devices" to cheat emissions tests, making its cars appears greener than they were. It has not compensated British owners despite reaching a GBP15bn settlement with 500,000 US drivers, offering instead to fix affected vehicles. The class action suit, which is being led by law firm Harcus Sinclair, is expected to claim that drivers should be compensated because they paid extra for what they thought were clean diesel cars. In fact, Harcus Sinclair alleged in a statement on its website that the cars emitted far higher levels of NOx -- a mixture of pollutants nitrogen oxide and nitrogen dioxide -- than stated. According to the Department for Environment, Food and Rural Affairs, NOx emissions cause 23,000 premature deaths in the UK each year. The law firm's application for group litigation, which is free for claimants to join, will be heard in the high court on 30 January. Damon Parker, Esq. -- damon.parker@harcus-sinclair.co.uk -- the head of litigation at Harcus Sinclair, told the Daily Mail claimants were "angry and believe that VW might get away with it". "They feel that they have been left with no choice but to take legal action. We have paved the way for consumers who trusted but were let down by VW, Audi, Seat and Skoda to seek redress through our courts," he said. "It it only right that UK car owners affected by the scandal have the opportunity to seek compensation. We have secured funding so that those affected can bring this claim against VW at no cost to themselves. "The group action aims to ensure that, if VW is found to have misled consumers about the environmental damage caused by their cars, they are penalised accordingly so as to discourage this sort of behaviour from happening again." Parker criticised VW's offer to fix cars affected by the scandal without offering compensation. He said: "Consumers are doubtful that the fixes will lower toxic emissions. But getting their cars fixed is not enough. The damage to the environment has been done." A VW spokesman said: "We have been notified that Harcus Sinclair intends to bring proceedings against Volkswagen on behalf of 77 claimants in the English high court.We intend to defend such claims robustly." Vickie Sheriff, director of campaigns and communications at Which?, said: "Which? agrees that VW must not be let off the hook. Volkswagen customers in the UK will rightly question why US consumers are getting compensation and there is still nothing on the table for the 1.2 million owners affected in this country. "The UK government also has a responsibility to ensure that UK customers are treated fairly. It simply has not done enough to hold VW to account throughout this scandal." Harcus Sinclair is collaborating on the case with other law firms, including Slater & Gordon. Jacqueline Young, jyoung@slatergordon.co.uk, head of group litigation at Slater and Gordon, said: "VW has shown utter contempt, not just for the rights and health of their UK consumers but also for the environment. This legal action is the best opportunity that British customers will have for holding VW to account over this scandal." Mary Creagh MP, a Labour politician and chair of the House of Commons environmental audit committee, said: "In the US Volkswagen faces multibillion-dollar payouts to drivers in environmental fines and in compensating motorists who purchased vehicles with cheat devices. "Last July the Commons environmental audit committee called on the transport secretary to measure the contribution that Volkswagen's cheat devices made to meeting UK emissions standards, and use the results with a view to pursuing court action in the UK. "In the absence of government action, it is inevitable that motorists would take matters into their own hands and pursue private action in the courts." The mayor of London, Sadiq Khan, has previously called for the capital's drivers to be compensated, including GBP2.5m for Transport for London in lost congestion charge payments. VOLKSWAGEN AG: Harcus Sinclair Applies for Group Litigation Order ----------------------------------------------------------------- Fleet News reports that Harcus Sinclair UK has applied for a group litigation order in claims against Volkswagen, Audi, Seat and Skoda arising out of the emissions scandal. It is the first group litigation order sought in relation to the scandal on behalf of consumers in England and Wales. Damon Parker, head of litigation at Harcus Sinclair, said: "We have paved the way for consumers who trusted but were let down by VW, Audi, Seat and Skoda to seek redress through our Courts. "It is only right that UK car owners affected by the scandal have the opportunity to seek compensation. "We have secured funding so that those affected can bring this claim against VW at no cost to themselves. "The group action aims to ensure that, if VW is found to have misled consumers about the environmental damage caused by their cars, they are penalised accordingly so as to discourage this sort of behaviour from happening again." A group litigation order is the Court's mechanism for handling claims involving a large number of claimants who share the same complaint. The application for the group litigation order will be heard in the High Court on January 30, 2017. The key allegation is that the affected cars should not have been certified as fit for sale because it is alleged that they produced higher levels of NOx emissions than the rules allowed. It is also alleged that the affected vehicles only passed official emissions tests because their engines were fitted with a "defeat device" which reduces NOx emissions under test conditions. In the interest of securing the best outcome for as many car owners in England and Wales who have been affected by the scandal, Harcus Sinclair is collaborating with law firms including Slater and Gordon. Harcus Sinclair will be the lead solicitor on the record at Court and responsible for instructing Counsel and preparing and filing of court documents, directing overall litigation strategy and reporting to claimants on the progress of the claim. Jacqueline Young, head of group litigation at Slater and Gordon, said: "VW has shown utter contempt, not just for the rights and health of their UK consumers but also for the environment. This legal action is the best opportunity that British customers will have for holding VW to account over this scandal." Current or previous owners of cars affected by the scandal can seek redress by joining the legal action at www.vwemissionsaction.com. Affected cars include VW, Audi, SEAT and Skoda vehicles with 1.2, 1.6 and 2.0 EA 189 diesel engines manufactured between 2009 and 2015. The value of the compensation sought is estimated to be in the region of several thousand pounds per car. There is no cost to joining the legal action. VOLKSWAGEN AG: Jan. 30 Hearing Set on UK-Based Motorists' GLO ------------------------------------------------------------- Kathryn Higgins, writing for Global Legal Post, reports that a group of 10,000 UK-based motorists are pursuing legal action against VW over the company's use of 'defeat devices' to cheat emissions tests. The claimants are seeking GBP3,000 each, bringing the total value of the claim to GBP30 million. However, should the action be extended to the 1.2 billion UK motorists who own VW vehicles, it could end up costing VW upwards of $3 billion. The carmaker has already reached a GBP15 billion settlement with around 500,000 US drivers in relation to the scandal. However, an equivalent settlement has not been reached with drivers in the United Kingdom and Europe, with the company instead offering to fix affected vehicles. However, the class action lawsuit will argue that UK motorists are due financial compensation for the extra money they paid for what they then believed were 'greener' diesel cars. Harcus Sinclair is leading the litigation effort with assistance from Slater and Gordon, Irwin Mitchell and Leigh Day. The firm's head of litigation Damon Parker said in a statement: 'The group action aims to ensure that, if VW is found to have misled consumers about the environmental damage caused by their cars, they are penalised accordingly so as to discourage this sort of behaviour from happening again.' He added: 'Getting their cars fixed is not enough . . . the damage to the environment has been done.' Harcus Sinclair lodged an application for a group litigation order (GLO) on January 9, with the application set to be heard by the High Court on January 30. Volkswagen has instructed a Freshfields Bruckhaus Deringer team led by partner John Blain to contest the GLO. WALDMAN & KAPLAN: Files Joint Bid to Certify Class in O'Brien Suit ------------------------------------------------------------------ The parties in the case captioned CHRISTINE O'BRIEN and JOHN O'BRIEN, individually and on behalf of all others similarly situated v. WALDMAN & KAPLAN, P.A. and JOHN DOES 1-25, Case No. 3:15-cv-07429-BRM-LHG (D.N.J.) jointly move the Court for an order certifying the case to proceed as a class action and granting preliminary approval of the Parties' class settlement agreement. The class is defined as: All New Jersey consumers who were sent an initial collection letter and/or notice from WKPA during the period of October 13, 2014 to present, that included the following language: "You may contact a representative at FCI Lender Services, Inc., with a mailing address P.O. Box 27370, Anaheim, CA 92809-0112 toll free at 1-800-931-2424 between the hours of 8:00am to 6:00pm PST if you disagree with the Lender's assertion that a default has occurred or the correctness of the mortgage lender's calculation of the amount required to cure the default within thirty (30) days of this Letter." The Plaintiffs filed the class action lawsuit pursuant to the Fair Debt Collection Practices Act, alleging that WKPA violated the FDCPA by sending consumers written collection communications that overshadowed Plaintiffs' validation notice. A copy of the Joint Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=HUG1ySCI The Plaintiffs are represented by: Ari H. Marcus, Esq. MARCUS & ZELMAN, LLC 1500 Allaire Avenue, Suite 101 Ocean, NJ 07712 Telephone: (732) 695-3282 Facsimile: (732) 298-6256 E-mail: Ari@MarcusZelman.com The Defendant is represented by: Farha Ahmed, Esq. WALDMAN & KAPLAN, PA 174 Nassau Street, Suite 313 Princeton, NJ 08542 Telephone: (844) 899-4162 Facsimile: (844) 882-4703 E-mail: farha@dwaldmanlaw.com WASHINGTON, DC: Developmental Disabilities Class Action Settled --------------------------------------------------------------- Martin Austermuhle, writing for WAMU, reports that a federal judge on Jan. 10 dismissed a four-decade-old class-action lawsuit against D.C. over its treatment of residents with intellectual and developmental disabilities, freeing the city from court oversight and ending one of the country's longest-running legal battles over what services and opportunities residents with disabilities are entitled to. It is not necessary for this court to remain a supervisor any longer. "Though much is left to be done, it is not necessary for this court to remain a supervisor any longer," said U.S. District Court Judge Ellen Huvelle during a hearing in which attorneys and advocates spoke of the progress -- albeit slow -- D.C. had made since the days when it regularly sent residents with disabilities to live at Forest Haven, an institution located 22 miles north of the city outside Laurel, Maryland. The Evans lawsuit -- named after Joy Evans, one of the children who lived at Forest Haven -- was filed on Feb. 23, 1976. In it, a half-dozen families said that the institution offered "only the most meager custodial care," violating a number of constitutional rights of the more than 1,000 people institutionalized there. A four-part WAMU series published last year tracked the 40-year history of the lawsuit. Two years after the lawsuit was filed, a federal judge ordered Forest Haven closed and its residents sent to homes in the city. But that victory was short-lived, as it took until 1991 to actually shutter the sprawling institution. And even after it was closed, its former residents ended up in group homes that in some cases were no better than the institution they had just left. In 1999, The Washington Post reported that more than 100 people with intellectual and developmental disabilities died while in group homes paid for and overseen by the city. The legal fight continued for another two decades, during which the city slowly rebuilt the agency that provides services for residents with disabilities and increased the amount of federal funding it took in to pay for services. In 2010, the court set out 70 conditions that would have to be met to end the Evans lawsuit; the city met the last of those late last year. "I remember the days when there was Forest Haven, and people were routinely institutionalized because parents had so few options. But you look at where we are today, there are large numbers of community services," says D.C. Council member Vincent Gray (D-Ward 7), who visited Forest Haven when it was open and later became an advocate for people with disabilities. During the Jan. 10 hearing, various attorneys and advocates spoke of the improvements that have been made, notably in the last 15 years. Judge Huvelle, who took over the case in 2001, noted that in United Cerebral Palsy's annual report ranking how well states serve residents with developmental disabilities, D.C. jumped 41 spots from 2007 to 2015, going from one of the worst states in the country (49th place in 2007) to one of the best (8th in 2015). It is critical that all that was gained is not lost when we leave this courtroom. But the air of optimism was tempered by caution, as attorneys for the former residents of Forest Haven -- of the original 1,050, 479 remain alive today -- spoke of the need to protect and perpetuate the progress they say has been made. "It is critical that all that was gained is not lost when we leave this courtroom," said Sandy Bernstein, an attorney with University Legal Services who represents the former residents. That's a point that's critical for Tina Campanella, who heads the Quality Trust for Individuals With Disabilities, an organization created by court order in 2001 with funding from the D.C. government to advocate for residents with intellectual and developmental disabilities. "There's a lot of work to be done. A lot of people coming into the system now have hopes and dreams we're not very good at meeting now, so we need new services, we need continued evolution of the service system that it will continue to grow and continue to set higher expectation and create new opportunities," she says. Those opportunities include further community integration and access to jobs, an issue Judge Huvelle herself cited before adjourning the hearing. "We need to increase employment opportunities," she said, noting that of the 479 former residents of Forest Haven who remain alive, 58 are employed. Around 12 percent of D.C. residents with intellectual and developmental disabilities are either in a job or working towards getting one, below the national average of 19 percent. We cannot let 40 years of work be derailed by bureaucratic inertia. "These commitments will be sustained and improved upon," promised Thomas Jared Morris, the deputy director of the D.C. Department on Disability Services. "We will continue to raise the bar a little higher." And though Judge Huvelle called the end of the Evans lawsuit a "joyous occasion," she issued one last warning to a crowd that included Mayor Muriel Bowser. "We cannot let 40 years of work be derailed by bureaucratic inertia," she said. After that, she invited the audience to her chambers for cake, a celebration of the end of the case. WINFIELD MURDOCK: Faces Class Action Over Unpaid Overtime Wages --------------------------------------------------------------- Jenie Mallari-Torres, writing for Florida Record, reports that a Brevard County man employed in sales and marketing alleges his costume design services employer did not pay overtime or minimum wages. He has filed a class-action suit. Edward Scott Blanford filed a complaint on behalf of himself and others similarly situated on Dec. 22 in the U.S. District Court for the Middle District of Florida, Orlando Division against Winfield Murdock Creative Works LLC, Roger A. Agness and George J. Pereira citing the Fair Labor Standards Act. According to the complaint, the plaintiff alleges that during his entire employment he has regularly worked well in excess of 40 hours per week, but was deprived of minimum wages and overtime compensation. The plaintiff holds Winfield Murdock Creative Works LLC, Mr. Agness and Mr. Pereira responsible because the defendants allegedly denied plaintiff of his rights to receive minimum wages for every hour worked and overtime wages for hours worked in excess of 40. The plaintiffs request a trial by jury and seek judgment against defendants, damages for unpaid wages, expenses, liquidated damages, attorney's fees, costs and further relief as the court deems appropriate. He is represented by N. James Turner of Law Offices of N. James Turner in Orlando. U.S. District Court for the Middle District of Florida, Orlando Division Case number 6:16-cv-02191 YAHOO! INC: Illinois Court Certifies TCPA Class Action ------------------------------------------------------ Keogh Law, LTD. on Jan. 11 disclosed that on January 4, 2016, the United States District Court for the Northern District of Illinois certified a class action against Yahoo, claiming that it violated the Telephone Consumer Protection Act ("TCPA") by using an automatic telephone dialing system to send "Welcome" text messages regarding its Yahoo Messenger program without prior express consent. The lawsuit, Johnson v. Yahoo! Inc., Case No. 14-cv- 2028, is pending in the United States District Court for the Northern District of Illinois. On December 12, 2016, the court approved Johnson's notice plan and ordered that notice be sent to the class. The lawsuit alleges that Yahoo used automated dialing systems to send the following "Welcome" text message to the class members in order to promote its Yahoo Messenger program: "A Yahoo! user has sent you a message. Reply to that SMS to respond. Reply INFO to this SMS for help or go to y.ahoo.it/imsms." The Plaintiff claims that this text message violates the TCPA, which prohibits the use of an "automatic telephone dialing system" to send text messages without the "prior express consent" of the called party. Yahoo denies violating the TCPA and the use of an automatic telephone dialing system, and claims some class members may have provided consent. The lawsuit seeks $500-$1500 per text message for the class members. The class includes all persons within the United States who used a cellular telephone number to which Yahoo! sent the Welcome Message from March 1, 2013 through March 31, 2013, while the cellular number was assigned to Sprint and was not associated with a Yahoo! user in Yahoo!'s records. The Court has not yet ruled on the merits of the case. Class members may stay in the class or request to be excluded by March 13, 2017. For a detailed notice, instructions, and other documents about this lawsuit and your rights, go to www.YahooTCPAClass.com, call 1-866-726-1092, email info@yahootcpaclass.com, or write to Yahoo Text Message Class Action Notice Administrator c/o KCC Class Action Services PO Box 30227 College Station, TX 77842-3227. YOUR WIRELESS: Jackson Moves for Certification of TCPA Class ------------------------------------------------------------ Brian Jackson and Melissa Kivo ask the Court to enter an order determining that the action styled BRIAN JACKSON and MELISSA KIVO, individually and on behalf of the classes defined herein v. YOUR WIRELESS INC.; PLAINVIEW: CLASS CERTIFICATION WIRELESS INC., and DOES 1-10, Case No. 2:15-cv-07067-JMA-SIL (E.D.N.Y.), may proceed as a class action against the Defendants. The Plaintiffs bring Count I of the action, alleging violation of the Telephone Consumer Protection Act, on behalf of a class consisting of (a) all persons (b) who, on or after December 11, 2011, (c) were sent text message calls by or on behalf of Defendants (d) with respect to whom defendants have no evidence of express consent. With respect to Count II, alleging violation of New York General Business Law, the Plaintiffs seek certification of a class of (a) all persons with telephone numbers in New York area codes (b) who, on or after December 11, 2009, (c) were sent text message calls by or on behalf of defendant Your Wireless Inc. (d) with respect to whom defendants have no evidence of express consent. The Plaintiffs further ask that Kleinman LLC and Edelman, Combs, Latturner & Goodwin, LLC be appointed counsel for the class. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=TtDzEpSk The Plaintiffs are represented by: Tiffany N. Hardy, Esq. EDELMAN, COMBS, LATTURNER & GOODWIN, LLC 20 S. Clark Street, Suite 1500 Chicago, IL 60603-3593 Telephone: (312) 739-4200 Facsimile: (312) 419-0379 E-mail: thardy@edcombs.com - and - Abraham Kleinman, Esq. KLEINMAN, LLC 626 RXR Plaza Uniondale, NY 11556-0626 Telephone: (516) 522-2621 Facsimile: (888) 522-1692 E-mail: akleinman@kleinmanllc.com * Enforceability of Mandatory Arbitration Agreements Challenged --------------------------------------------------------------- A. Michael Weber, writing for New York Law Journal, reports that with the explosion of employment litigation -- in particular, wage and hour lawsuits -- many employers are turning to arbitration agreements as a strategy to keep defense costs down and avoid class actions. But as more and more companies make mandatory arbitration a condition of employment, the controversy surrounding the legality of such agreements escalates, with employee advocates questioning the fairness of prohibiting employees from airing their grievances to a jury or seeking class-wide relief. And as employers seek to enforce arbitration agreements, the debate over enforceability of such provisions, including the class-action waivers that are often included in such agreements, has moved to the National Labor Relations Board and the courts. The surge in arbitration agreements is not surprising, as arbitration presents some benefits over traditional litigation. As the cost of defending employment claims has skyrocketed, particularly given the length and formality of the litigation process and the broad scope of permissible discovery and potential class-wide relief, employers often agree to pay out settlements for even the most meritless claims, simply to avoid the higher cost of defending themselves and exposure, as well as the significant costs associated with e-discovery. Many employers view arbitration as a quicker and more cost- efficient way of resolving employment disputes, especially avoiding the significant cost burden and risk associated with defending class actions, which allow a single employee to file suit on behalf of many, causing an employer to consider settlement even when the underlying claim is dubious. Employers also are attracted to arbitration's increased predictability; in arbitration, the parties rely on a trained legal professional to decide employment disputes rather than rolling the dice with a jury. In addition, because arbitrations are private, the proceedings and ultimate outcome ordinarily are confidential, reducing both the risk of copycat plaintiffs and damage to the company's brand and reputation. Arbitration also has its advantages for employees. It provides a cost-effective and accessible way for an employee to address a dispute with his or her employer. Generally, individual arbitrations are likely to reach resolution more quickly than litigation. Further, while arbitration may not, in the eyes of the plaintiffs' bar, as frequently produce windfall damage awards that juries sometimes render, the expeditious and informal nature of arbitration gives more employees an opportunity to effectively resolve their workplace disputes. In addition, individual arbitration affords the employee the right to decide when and for what amount the case may be settled instead of allowing plaintiffs' class action attorneys to settle for pennies on the dollar when the underlying claim for an individual plaintiff may be valued at a greater amount. Many judges also favor arbitration, as it helps relieve an already overburdened court system. Of course, the increased use of arbitration agreements is not without controversy. Detractors may claim that damages awarded to successful employees at arbitration are substantially lower than jury awards, but these claims cannot be fully evaluated; given the privacy of most arbitration proceedings, hard and comprehensive data are not readily available. Likewise, arbitrators may be less likely to grant dispositive motions than their judicial counterparts and more likely to present "split the baby" outcomes. Opponents also allege there is an unequal bargaining power between employers and employees, which can result in agreements containing more employer-friendly provisions, such as class-action waivers. Some employers also have been criticized for "burying" arbitration clauses in lengthy, unrelated documents, arguably causing employees to inadvertently sign away their right to litigate claims in court. Finally, because arbitration awards are entitled to great deference from the courts, even erroneous arbitral awards (both those awarding relief to a plaintiff, as well as those denying relief) are nearly impervious to judicial oversight and review. Court Decisions For its part, the U.S. Supreme Court has long held that the Federal Arbitration Act mandates enforcement of arbitration agreements in all but the most unusual circumstances. See Moses S. Cone Memorial Hospital v. Mercury Construction Corporation , 460 U.S. 1, 22 (1983); Dean Witter Reynolds v. Byrd , 470 U.S. 213, 218 (1985); Nitro-Lift Technologies v. Howard , 133 S. Ct. 500, 503-04 (2012); DirecTV v. Imburgia , 136 S. Ct. 463, 471 (2015). Those decisions have not stopped plaintiffs' attorneys from working to stem the tide of arbitration, however. One initially successful approach was to attack the inclusion of class-action waivers in arbitration agreements, which require employees to individually arbitrate their employment claims rather than having the option to bring them on a class-wide basis on behalf of all similarly situated employees. Nevertheless, in 2013, the U.S. Supreme Court in American Express v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013), held that the FAA permits waiver of the class action procedure, so long as the arbitral process would allow redress of an individual claim, as the FAA's "command to enforce arbitration agreements trumps any interest in ensuring the prosecution of low value claims." Nonetheless, life remains in the fight against class action waivers. In In re D.R. Horton, 357 NLRB No. 184 (Jan. 3, 2012), the National Labor Relations Board ruled that mandatory class waivers violate an employee's right to engage in concerted protected activity under the National Labor Relations Act. Although D.R. Horton was ultimately overturned by the U.S. Circuit Court of Appeals for the Fifth Circuit, the NLRB maintains its stance that class action waivers violate the NLRA, and continues to rule that an employer who uses such waivers has committed an unfair labor practice. In the meantime, plaintiffs have relied on D.R. Horton to attack mandatory arbitration provisions though the NLRB, hoping that a favorable board ruling will open the door to class litigation. While the U.S. Supreme Court has held that mandatory arbitration agreements are generally enforceable, plaintiffs' attorneys continue to creatively challenge enforceability, and some judges find opportunities to chip away at the Supreme Court's rulings. * France Adopts Class Action Regime for Data Protection Violation ----------------------------------------------------------------- Sara Susnjar, Esq., and Liisa M. Thomas, Esq., of Winston & Strawn LLP, in an article for Lexology, report that France recently passed a "21st Century Modernization of the Judiciary Law," creating a new general framework for class actions in France to include data protection violations, regardless of industry sector. Class actions have previously only been limited to consumer actions. Pursuant to the new law, data protection class actions may be brought by the following groups: (i) associations whose purpose is the protection of personal data and privacy; (ii) specific national consumer protection associations; and (iii) trade unions. These groups can file class actions before civil or administrative courts. * IoT Security Vulnerabilities May Spark Legal Risks ---------------------------------------------------- Bob Violino, writing for ZDNet, reports that as the Internet of Things (IoT) becomes more of a fact of daily life for many people and businesses, securing the data and devices involved has emerged as the single biggest IoT challenge. This isn't surprising, given that security incidents related to connected devices will likely rise -- as will legal action related to product and service vulnerabilities. A prime example came earlier this month, when the United States Federal Trade Commission (FTC) filed a lawsuit against D-Link, a maker of networked devices for business users and consumers, claiming the company put thousands of customers at risk of unauthorized access by failing to secure its IP cameras and routers. Security vulnerabilities in the products had been discovered last year. The lawsuit claims that D-Link failed to take reasonable software testing and remediation measures to protect its routers and IP cameras against well-known and easily preventable software security flaws. The case against D-Link is the latest of many recent FTC actions brought against consumer-facing technology companies for allegedly failing to implement reasonable data security, said Jeremy Goldman, a data security law expert and a partner in the litigation, privacy and data security groups at law firm Frankfurt Kurnit Klein & Selz. "D-Link has just been made the poster child for IoT security, and similar actions are likely," Mr. Goldman said. "However, the key question is whether the incoming administration will continue to prioritize data security and interpret the FTC's powers as broadly as the current commission." The legal action should grab the attention of any company that is developing IoT and other Internet-enabled consumer or business products. "The FTC is sending a clear message to manufacturers of IoT and other connected devices: you have to think seriously about the technical controls built into your products," Mr. Goldman said. "Innovation has to include reasonable security designed to protect consumer data and privacy. What does that mean? Among other things, default passwords simply will not fly." In the current political climate, Mr. Goldman thinks it is unlikely the U.S. government will enact any new legislation setting minimum security standards for IoT or other connected devices. "It is more likely that the FTC and other federal regulators will continue to try and fill the gaps using their authority under existing laws," Mr. Goldman said. "States have become increasingly active in the data security space, both in terms of cyber-policing by state [prosecutors] as well as state legislatures passing new cyber security laws." In addition to the FTC, and depending on the functionality and intended users of an IoT product, legal action might arise from other federal regulators such as the FCC as well as state attorneys general charged with protecting consumers, Goldman said. "The other major source of legal action is class action lawyers, who have been very aggressive and creative in the privacy and data security space," Mr. Goldman said. "Companies that market products abroad also may face action from foreign data protection regulators." As technology evolves and new exploits are discovered, what constitutes a reasonable level security is going to change over time, Mr. Goldman noted. "That said, there is helpful guidance out there," he said. For example, the FTC published a detailed report recommending a series of concrete steps that IoT developers can take to enhance the security of their products. "While not binding, companies that follow the FTC's recommendations would have a strong argument that they acted reasonably in protecting the privacy and data security of their consumers," he said. * TCPA-Related Class Actions Dominate Filings During Fall 2016 -------------------------------------------------------------- Amy Byrd, Esq. -- abyrd@orrick.com -- and Elliott Henry, Esq. -- ehenry@orrick.com -- of Orrick, Herrington & Sutcliffe LLP, in an article for JDSupra, report that class action filings during the fall of 2016 continued to be dominated by Telephone Consumer Protection Act ("TCPA") cases. As of October 1, 2016, nearly 150 cases have been filed; these filings are both daily in frequency and nationwide in scope. Whereas prior monthly trends have shown a similarity of defendants, this fall's targeted companies run the gambit from food service providers to commercial insurers. Given the mass proliferation of these cases at both a state and federal level nationwide, it is clear that TCPA filings are not a short- lived trend. Despite the September 2016 decision in Brazil v. Dole, No. 14- 17480 (9th Cir. Sept. 30, 2016), "All Natural" litigation continues to be prevalent throughout the United States. While there appears to have been a slight decline in the volume of cases filed in the 9th Circuit, litigation elsewhere is on the rise, particularly in New York -- where 9 cases were been last quarter. "Slack-fill" litigation, which saw a rise beginning in roughly the summer of 2015, has continued through the last quarter. Although these cases do not generally result in success for the plaintiffs because of the number of valid justifications manufacturers can rely on for the slack (see Bautista v. CytoSport Inc., Case No. 7:15-cv-09081 (S.D.N.Y.); 21 C.F.R. Sec 100.100), they continue to drive up litigation costs for food, beverage, and cosmetics manufacturers. There has also been an uptick in false advertising litigation as it pertains to products touted as being eco-friendly in some fashion. With the rise in environmental awareness and the availability of these supposedly eco-friendly options, this ilk of litigation may become a mainstay. A high volume of these cases target automobile manufacturers; representations pertaining both to emissions compliance and to fuel efficiency are under fire. Given California's notoriously stringent emissions standards, it should come as no surprise that 13 out of the 18 cases filed in the past 3 months were all filed in California. Similar allegedly false energy efficiency claims are also being aimed at electronics manufacturers who have represented that their products are compliant with Energy Star standards or may otherwise reduce energy use. A total of 4 such cases were filed in the last quarter. Change on the Horizon? Given the publicly reported mass data breaches against Yahoo! in September of 2016, data breach class actions are also increasingly a trend to watch. Repeated lawsuits against Yahoo! based on the 2014 data breach continue to be filed. Perhaps more interestingly, similarly structured claims are being filed elsewhere -- notably in Colorado, where allegedly relaxed security measures caused hundreds of thousands of bank cards routed through financial institutions to be compromised in a large scale security hack. In a similar vein, lawsuits against smart phone app developers are cropping up based on allegations that the apps misused, distributed, or transmitted personal data without authorization. While the relative percentage of these data breach class actions may be low, such claims may become more prolific in 2017. A number of cases with important implications for the viability of data breach class actions -- particularly focused on the issue of standing requirements -- will come up for decision in the coming months. The Fourth Circuit heard oral argument in Beck v. McDonald, Case No. 15-1395/15-1715 related to issues surrounding standing in September 2016 in connection with a case concerning the theft of a hospital laptop containing medical information pertaining to the plaintiffs. Alleruzzo v. Supervalu, Case No. 16-2378/16-2528, a case involving hacked payment card information, has been fully briefed in the Eighth Circuit and will be argued in 2017. Again, one of the primary issues on appeal is standing. Lastly, Attias v. CareFirst, Case No. 16-7108, a class action involving a data breach in connection with a health care insurer, is pending in the District of Columbia Circuit and will be briefed in early 2017. In the coming months, Spokeo may become a smaller part of standing analysis it comes to data breach class actions. A Note on Data Compilation As part of an ongoing effort to monitor, track, and anticipate trends in class action litigation, Orrick has been tracking all class action filings throughout the United States, including both those cases filed at the state and the federal level. Using Courthouse News Service, Orrick receives daily notifications for each case designated as a class action. Orrick then individually reviews and categorizes the information gleaned and the cases are filtered down to a subset of cases of interest, specifically excluding securities class actions, Fair Debt Collection and Fair Credit Reporting Act class actions, Americans with Disabilities Act and Employee Retirement Income Security Act class actions, low value labor & employment cases filed against individual restaurants, salons, or small entities, and TCPA lawsuits filed specifically against collection agencies. This quarterly update is a high level summary of trends noted across those cases, and the numbers of filings are only representative of such trends. * Ticket-Fighter to Launch Suit Challenging Photo Radar Ticketing ----------------------------------------------------------------- CBC News reports that a Winnipeg traffic ticket-fighter says he's making moves to launch a class-action lawsuit by the spring on behalf of all individuals who received tickets based on photo radar evidence. Todd Dube, founder of ticket-fighting group Wise Up Winnipeg, said he hopes to file a statement of claim by the end of March, arguing photo radar evidence used to support the tickets is hearsay. Inconsistent radar testing casts doubt on validity of millions of speeding tickets "We would make one claim, in that all photo enforcement cases are not supported by proper evidence criteria," Dube said of the potential lawsuit. "This program should have been challenged in this way years ago." Last November, a Quebec judge ruled in favour of a driver who challenged a $1,160 ticket on the grounds information from a fixed photo radar machine is not enough to support a ticket. Quebec court decision means thousands of photo radar tickets could be tossed, lawyer says Quebec Crown won't appeal rejection of photo radar evidence In his ruling, Justice of the Peace Serge Cimon called photo radar evidence "hearsay" because no officer directly witnessed the violation. A Montreal man is currently seeking permission to launch a class- action lawsuit similar to the one Dube has planned. Quebec photo radar tickets could be reimbursed under proposed class-action lawsuit Legal action underway Dube said he has already contacted legal counsel to prepare the action. They are still in the process of naming parties but he said the City of Winnipeg and the Province of Manitoba will both be listed as defendants. Dube said Wise Up Winnipeg had previously considered a lawsuit challenging photo radar technology, but the Quebec decision "compelled us to put it at the top of our list of things to do." Ticket-fighter to sue City of Winnipeg over Know Your Zone School zone speeding tickets on holiday frustrate Winnipeg drivers "We always thought it was most appropriate for this challenge to happen in Manitoba," Dube said, citing the age and size of Winnipeg's photo radar program, which was introduced in pilot form in 2001 and formally rolled out in 2003. Dube and Wise Up Winnipeg have also criticized the city's Know Your Zone program and school zone speed limits. Impact on Tickets The Quebec case applies specifically to intersection cameras, but Dube argues the logic can be applied to the mobile units, too. He argues the operators in mobile units can't know for sure if their equipment is working and he doesn't think they always see the vehicles as they pass. Dube said that if the lawsuit is successful, millions of dollars worth of traffic tickets might be thrown into question. The City of Winnipeg has safety cameras stationed at around 50 intersections across the city in addition to 10 mobile units armed with photo radar equipment. According to statistics on the Winnipeg Police Service website, the city's 10 mobile units issued more than 108,000 tickets in 2015. In that same year, intersection cameras captured more than 38,000 offenses. ********* 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. Agravantefor, Valerie Udtuhan, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2017. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000 or Nina Novak at 202-362-8552. * * * End of Transmission * * *