/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/170425.mbx C L A S S A C T I O N R E P O R T E R Tuesday, April 25, 2017, Vol. 19, No. 82 Headlines 90 HADDON AVENUE: Court Grants Reed's Bid for Conditional Cert. ADVANCED EMISSIONS: Suit by Food Workers Union in Colo. Dismissed AIR METHODS: "Parshall" Suit Challenges Merger Deal ALLEN COUNTY, IN: Jordan Seeks to Certify Prisoners Class ALLIANCE HEALTHCARE: Suit Over Junk Fax in Discovery Phase ALLIANCE MMA: Rosen Law Firm Files Securities Class Action ALLIED INTERSTATE: Court Strikes Schafer's Bid to Certify Class ALPINE ACCESS: Certification of FLSA Class Sought in "Morse" Suit AMERICAN CHEMICALS: Judge Okays Junk Fax Settlement for $1.55MM AMETEK INC: Faces "Cox" Suit Over Groundwater Contamination ANZ SECURITIES: High Court Hears Oral Arguments in Class Action ANZ SECURITIES: Justice Gorsuch Less Sympathetic to Plaintiffs ANZ SECURITIES: S.C. Tackles Time Limits Issue Under Section 13 ANZ SECURITIES: Several Justices Sympathetic to CALPERS Arguments ANZ SECURITIES: Chief Justice Likely Swing Vote for Opt-Outs ANZ SECURITIES: SC Justices Divided on Statue of Repose Issue ASCEND FUNDING: Faces Class Action Over Solicitation Calls AURORA BULL: Faces "Gabryszak" Suit Over FLSA, IMWL Breach AVANGRID INC: Awaits Final Approval of Merger Suit Settlement BANK OF THE OZARKS: Class Suit in Pre-Trial Discovery BAXTER INT'L: Faces Saline Price Fixing Probe Amid Class Action BCB BANCORP: Awaits Order on Bids in Suit to Recover $1MM in Fees BERKS COUNTY, PA: Detained Immigrants File Class Action v. AG BERKSHIRE HILLS: Settlement in Hampden Investor Suit Has Final OK BERKSHIRE HILLS: Depositor's Class Action Underway BIG LOTS: Court Certifies Class of Stockholders in "Willis" Suit BIJOU-CENTURY: Faces "Carouba" Class Suit in California BIOLASE INC: "Shulruff" Class Suit Dismissed With Prejudice BLACKROCK INC: Faces "Baird" Suit over Retirement Plans CAESARSTONE LTD: Defends 85 Injury Suits in Israel as of March 1 CAESARSTONE LTD: Defends Suit in Israel Central District Court CAESARSTONE LTD: Settles Securities Class Suit in New York CANADA: Suit Filed on Behalf of Developmentally Disabled Adults CELESTICA INC: Consolidated Securities Class Suit Tossed CENTER FOR EXCELLENCE: Removed "Espinosa" Suit to S.D. California CENTRAL CREDIT: Class Certification Sought in "Czarnecki" Suit CITIBANK: Reed Smith Attorney Discusses Arbitration Issue Ruling COGNIZANT TECHNOLOGY: Court Consolidated 3 Class Suits COLLIER COUNTY, FL: Immigrant Students to Join Class Action CONAGRA: Judge Tosses Crunch 'N Munch Trans Fat Class Action CREATIVE AIR: Faces Class Action in Calif. Over TCPA Violation CURADEN AG: Faces "Lyngaas" Suit Over TCPA Violation DELOITTE: Ontario Court Certifies Doc Reviewers' Class Action DOMINO'S PIZZA: Driver Sues for Vehicle Expense Compensation DYNAVAX TECHNOLOGIES: Continues to Defend Securities Suit in Cal. DYNAVAX TECHNOLOGIES: Court Tosses Consolidated Securities Suit EL POLLO LOCO: Awaits OK of Settlement in Orange Cty., Cal. Suit EL POLLO LOCO: Wins More Time to Respond to "Turocy" Amended Suit ENRICH FINANCIAL: Aleksanian Sues Over False Advertisement ENVISION HEALTHCARE: To Pay $300,000 to Plaintiffs' Counsel EXPEDIA INC: Texas Cities Awarded $25MM in Hotel Tax Class Action FBR & CO: Briefing on Bids to Dismiss "Gaynor" Suit to End in 2Q FBR & CO: Waterford Appeals Denial of Bid to Amend Complaint FCA US: "Sebastian" Suit Consolidated in MDL 2777 FCA US: "Warren" Suit Consolidated in MDL 2777 FEDERAL-MOGUL: To Defend Against Delaware Shareholder Action FEDERAL-MOGUL: To Defend Against Michigan Shareholder Suit FEDERAL WAY, WA: Faces Class Action Over Illegal School Zone FIAT CHRYSLER: Seeks Dismissal of Clutch Defect Class Action FIRSTENERGY CORP: Faces Class Action Over Coal Waste Dump FORD MOTOR: Kinnunen Sues Over Faulty Door Lock FRESHLY INC: Removed "Johnson" Suit to East. District California FRIENDS OF FREDDIE: Faces Class Action Over Sick Dogs GENVEC INC: Rigrodsky & Long Files Securities Class Action GOOGLE INC: Settles AdWords Advertisers' Class Action for $22.5MM HEALTH NET: Blumenthal, Nordrehaug & Bhowmik Files Class Action HSBC MORTGAGE: Judge Tosses Claims in Default Servicing Suit HUGOTON ROYALTY: Pretrial Discovery Continues in Chieftain Suit HUGOTON ROYALTY: Royalty Suit by Roderick Trust Now Concluded IMPAX LABORATORIES: Discovery Underway in Solodyn Antitrust Suit IMPAX LABORATORIES: Discovery Underway in Opana ER Antitrust Suit IMPAX LABORATORIES: Motion to Dismiss Plumbers' Suit Underway IMPAX LABORATORIES: 2 Junk Fax Suit Pending in Alabama INTERNATIONAL PAPER: Flooding Suit Obtains Class Action Status INTERNATIONAL PAPER: Must Face Price-Fixing Class Action J2 GLOBAL: Class Certification Bid in Paldo Suit Underway J2 GLOBAL: Appeal in Multi-District Litigation Underway J2 GLOBAL: Final Class Action Settlement Approval Pending J2 GLOBAL: Motion for Judgment on Pleadings Pending JPMORGAN CHASE: 2nd Circuit Reinstates Claims in Investors' Case JPMORGAN CHASE: Judge Grants Class Certification in 401(k) Suit LANNETT COMPANY: Faces FWK Holdings Suit in E.D. Pennsylvania LAMI AEROSPACE: Faces "Benchabane" Suit Over Sale to Sonaca LION BIOTECHNOLOGIES: Faces Securities Class Action MAJOR LEAGUE: Players' Attorneys Want Antitrust Exemption Nixed MARINA ST VINCENT: Wirrina Cove Berth Owners Files Class Action MAZDA MOTOR: Traffic Alerts in Cars Don't Work, Lewand Says MDL 2724: No Trial Yet in Generic Drug Pricing Antitrust Suit MDL 2724: Operating Engineers' Suit Consolidated for Pre-Trial MEMPHIS, TN: 6 More Victims Join Class Action Over Rape Kits Case MIDLAND STATES: Faces "Rader" Suit Over Centrue Acquisition MKS INSTRUMENTS: Motion to Dismiss Class Suit Underway NASHVILLE, TN: Immigrant Detentions Illegal, Abriq Claims NATURAL HEALTH: Discovery Cut-Off Date in "Ford" Extended NL INDUSTRIES: Appeal in Santa Clara Action Remains Pending NL INDUSTRIES: Continues to Defend "Lewis" Class Suit in Illinois NL INDUSTRIES: Still Defends Suits Over Use of Lead Pigments NUVASIVE INC: Wants Judge to Stay Investor Class Action O'CONNELL PROTECTION: Faces "Harris" Suit Over Failure to Pay OT ODWALLA INC: Faces "Wilson" Class Suit in C.D. California OMEGA FLEX: Missouri District Court Dismisses "George" Class Suit P&M LIVE: Faces "Pino" Suit Over Failure to Pay Overtime Wages PACIFIC COAST: Final Hearing on "Welch" Accord Continued June 12 PACIFIC CONTINENTAL: Wins Final Approval of Deal in Suit vs. Bank PATH INC: May 25 Hearing for Initial Approval of $5.3M Accord PROMETHEUS GLOBAL: Faces "Sullivan" Suit Over ADA Violation QUANTA SERVICES: To Appeal Ruling in "Benton" Class Suit SALEM COUNTY, NJ: Stevenson et al. Sue Over Inmates' Velcro Suits SAN FRANCISCO: Transport Sys. Sued over Disability Discrimination SANTANDER CONSUMER: SCOTUS Hears Oral Arguments in Class Action SCYNEXIS INC: Defends "Gibson" Stockholder Suit in New Jersey SEAWORLD PARKS: Customers' Motion for Summary Judgment Granted SOUTHERN COPPER: "Lacey" Class Action in Discovery ST. BERNARD'S: "Citizen" Not Synonymous to "Resident", Court Says STELLAR MANAGEMNENT: 60 Tenants File Class Action Over J-51 Fraud STRAIGHT PATH: Says Zacharia Deal Subject to Definitive Agreement TETRAPHASE PHARMACEUTICALS: Awaits Ruling on Bid to Dismiss Suit TAKE-TWO INTERACTIVE: GTA Gamers Have Until May 8 to Amend Suit THERANOS: Court Upholds Fraud Claims in Investor Class Action THERAPEUTICSMD INC: Faces Securities Class Action in Florida TRIPLE-S MANAGEMENT: Discovery Still Ongoing in Blue Cross MDL TRIPLE-S MANAGEMENT: Procedures Ongoing in Suit vs. JUA and TSP U.S. METALS: Motion to Dismiss Smelter Class Action Challenged UBER TECH: Shortchanged Drivers, "Van" Suit Claims UBER TECH: Can't Compel Arbitration in Cancellation Fees Action UBER TECHNOLOGIES: Faces Class Action Over Contractor Status UFP TECHNOLOGIES: Has Gained $2.1MM From Polyurethane Foam Deal UNITED STATES: Army Veterans Sue Over PTSD Discharge Status UNITED STATES: Trump Administration Wants Visa Class Action Nixed US COMMODITY: Suit by N.J. Carpenters Health Fund Remains Pending US GASOLINE: Forex Class Suits vs. RBC Pending in U.S. and Canada VERIFONE SYSTEMS: Continues to Defend Shareholder Suit in Israel VOX MEDIA: Sued Over Americans with Disabilities Act Violation WEIGHT WATCHERS: Appeal in "Roberts" Suit Underway WELLS FARGO: $50MM Mortgage Fees Class Action Settlement Okayed WESTERN HEALTH: Plaintiffs' Lawyers to Conduct Discoveries WESTERN RANGE: Judge Dismisses Shepherds' Wage Class Action YAHOO! INC: 43 Consumer Actions Filed over Security Incidents ZAFGEN INC: Appeal From "Bessler" Suit Dismissal Heard in March * Lanier-Hosted Fundraiser Casts Doubt About Tort Reform Bill * Mintz Levin Attorneys Discuss Class Arbitration Issues * Morningstar Explores Ways to Avert Class Action Liability ********* 90 HADDON AVENUE: Court Grants Reed's Bid for Conditional Cert. --------------------------------------------------------------- The Hon. Noel L. Hillman grants the Plaintiffs' motion for conditional collective action certification filed in the lawsuit captioned WILLIAM REED, et al. v. 90 HADDON AVENUE RESTAURANT INCORPORATED d/b/a KEG & KITCHEN, Case No. 1:16-cv-06226-NLH-JS (D.N.J.). The case seeks to proceed as a collective action under the Fair Labor Standards Act of 1938 for alleged unpaid overtime compensation and minimum wages to servers, bartenders, bussers, and food runners, who worked at Keg & Kitchen. The Court authorizes the mailing of the proposed notice to all persons employed by Keg & Kitchen in positions of server, bartender, busser, and food runner within three years of the date of the mailing of the notice. The Court directs Keg & Kitchen to produce to the Plaintiffs a computer-readable data file (Microsoft Word/Excel) containing the names, addresses, social security numbers and available telephone numbers of all potential opt-in Plaintiffs within 10 days of the date of this Order. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=OzhTTiO8 ADVANCED EMISSIONS: Suit by Food Workers Union in Colo. Dismissed ----------------------------------------------------------------- Advanced Emissions Solutions, Inc., disclosed in its Form 10-K filed with the Securities and Exchange Commission on March 13, 2017, for the fiscal year ended December 31, 2016, that the securities lawsuit titled United Food and Commercial Workers Union v. Advanced Emissions Solutions, Inc., No. 14-cv-01243-CMA-KMT (U.S. District Court, D. Colo.), has been dismissed following final approval of a settlement. A class action lawsuit against ADES and certain of its current and former officers was filed in May 2014 in the federal court in Denver, Colorado alleging that ADES and other defendants misrepresented to the investing public the Company's financial condition and its financial controls to artificially inflate and maintain the market price of ADES's common stock. In May 2016, the parties reached an agreement in principle to settle this litigation, and on June 30, 2016, the parties entered into a Stipulation and Agreement of Settlement to resolve the action in its entirety. On February 10, 2017, the Company received an order and final judgment that the lawsuit was settled, and the entire case has been dismissed with prejudice. The settlement agreement for this case contains no admission of liability, and all of the defendants in this litigation have expressly denied, and continue to deny, all allegations of wrongdoing or improper conduct. The Company's insurance carriers funded the full settlement in November 2016. Advanced Emissions Solutions, Inc., is the holding entity for a family of companies that provide emissions solutions to customers in the coal-fired power generation and industrial boiler processes. Through its subsidiaries and joint ventures, the Company is a leader in emissions control technologies and associated equipment, chemicals and services. AIR METHODS: "Parshall" Suit Challenges Merger Deal --------------------------------------------------- Courthouse News Service reported that challenging a merger valued at $2.5 billion, Air Methods shareholders claim in a federal class action in Wilmington, Del. that the offer of $43 a share by American Securities is inadequate consideration. Air Methods has three divisions, one of which "is the largest provider of air medical transport services in the United States," according to the April 5 complaint. The case is captioned, PAUL PARSHALL, On Behalf of Himself and All Others Similarly Situated, Plaintiff, v. AIR METHODS CORPORATION, AARON D. TODD, C. DAVID KIKUMOTO, JOSEPH WHITTERS, RALPH J. BERNSTEIN, MARK D. CARLETON, JEFFREY A. DORSEY, JOHN J. CONNOLLY, MORAD TAHBAZ, CLAIRE M. GULMI, JESSICA GARFOLA WRIGHT, AMERICAN SECURITIES LLC, ASP AMC INTERMEDIATE HOLDINGS, INC., and ASP AMC MERGER SUB, INC., Defendants. Case 1:17-cv-00383-UNA (D. Del., April 5, 2017). Attorneys for Plaintiff: Seth D. Rigrodsky, Esq. Brian D. Long, Esq. Gina M. Serra, Esq. RIGRODSKY & LONG, P.A. 2 Righter Parkway, Suite 120 Wilmington, DE 19803 Tel.: (302) 295-5310 Facsimile: (302) 654-7530 Email: sdr@rl-legal.com Email: bdl@rl-legal.com Email: gms@rl-legal.com - and - Richard A. Maniskas, Esq. RM LAW, P.C. 1055 Westlakes Drive, Suite 3112 Berwyn, PA 19312 Tel.: (484) 324-6800 ALLEN COUNTY, IN: Jordan Seeks to Certify Prisoners Class --------------------------------------------------------- The Plaintiffs in the lawsuit styled ROLANDO JORDAN, RONALD WARD, and KENNETH ROLLINGCLOUD, individually and on behalf of all others similarly situated v. DAVID GLADIEUX, ALAN COOK, and CHARLES HART, Case No. 1:16-cv-00335-TLS-SLC (N.D. Ind.), ask the Court to certify this proposed class: All individuals held at the Allen County Jail between October 2014 and September 2016 practicing a Muslim or traditional Native American faith who have been forbidden from engaging in Muslim or traditional Native American communal worship and/or have been forbidden from keeping an article of Muslim or traditional Native American religious devotion. David Gladieux is the Sheriff of Allen County, Indiana. The action alleges unlawful and unconstitutional religious discrimination against inmates practicing Muslim and traditional Native American faiths at the Allen County Jail in Fort Wayne, Indiana. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=KmiNoVzL The Plaintiffs are represented by: Christopher C. Myers, Esq. David W. Frank, Esq. CHRISTOPHER C. MYERS & ASSOCIATES 809 South Calhoun Street, Suite 400 Fort Wayne, IN 46802-2307 Telephone: (260) 424-0600 Facsimile: (260) 424-0712 E-mail: cmyers@myers-law.com dfrank@myers-law.com ALLIANCE HEALTHCARE: Suit Over Junk Fax in Discovery Phase ---------------------------------------------------------- The purported class action lawsuit alleging violations of the Junk Fax Prevention Act is currently in the discovery phase, Alliance HealthCare Services, Inc., said in its Form 10-K filed with the Securities and Exchange Commission on March 10, 2017, for the fiscal year ended December 31, 2016. In November 2015, the Company was served with a lawsuit in the U.S. District Court for the Northern District of Ohio by Todd S. Elwert, DC, Inc. The Complaint alleges violations of the Junk Fax Prevention Act for allegedly sending an unsolicited advertisement to Plaintiff which promoted commercial availability and/or quality of the Company's services. The Plaintiff further alleges that it is part of a class of similarly situated chiropractors who received the blast fax, and as such, requested class certification. The Company filed its response on December 17, 2015 and is currently in the discovery phase of the lawsuit. The Company says it intends to vigorously defend itself against the lawsuit and currently believes the ultimate disposition of these matters will not have a material adverse effect on its consolidated financial statements. Alliance HealthCare Services, Inc., is a national provider of outsourced medical services, including radiology, oncology and interventional. The Company provides a full continuum of services from mobile to comprehensive service line management and joint venture partnerships, which can include one or more of the following depending on the customer's needs: systems, technologists to operate the systems, sales and marketing, patient scheduling and pre-authorization, billing and payer management, equipment maintenance and upgrades, overall management of services and fixed-site operations, including outpatient clinics and Ambulatory Surgical Centers. ALLIANCE MMA: Rosen Law Firm Files Securities Class Action ---------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, on April 18 disclosed that it has filed a class action lawsuit on behalf of purchasers of Alliance MMA, Inc. securities (AMMA) pursuant and/or traceable to Alliance MMA's initial public offering on or about October 6, 2016. The lawsuit seeks to recover damages for Alliance MMA investors under the federal securities laws. To join the Alliance MMA class action, go to http://www.rosenlegal.com/cases-1102.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, defendants in connection with Alliance MMA's initial public offering made false and/or misleading statements and/or failed to disclose that: (1) the condensed consolidated financial statements for the three months ended June 30, 2016 could not be relied upon because of an error in recognizing as compensation transfers of common stock by an affiliate of Alliance MMA to individuals who were at the time of transfer, or subsequently became, officers, directors or consultants of Alliance MMA; (2) the condensed consolidated financial statements for the six months ended June 30, 2016 could not be relied upon because of an error in recognizing as compensation transfers of common stock by an affiliate of Alliance MMA to individuals who were at the time of transfer, or subsequently became, officers, directors or consultants of Alliance MMA; and (3) as a result, defendants' statements about Alliance MMA's business, operations, and prospects were materially false and misleading and/or lacked a reasonable basis at all relevant times. 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 June 16, 2017. If you wish to join the litigation, go to http://www.rosenlegal.com/cases-1102.htmlor to discuss your rights or interests regarding this class action, please contact Phillip Kim or Kevin Chan of Rosen Law Firm toll free at 866-767- 3653 or via email at pkim@rosenlegal.com or kchan@rosenlegal.com. Follow us for updates on LinkedIn: https://www.linkedin.com/company/the-rosen-law-firm or on Twitter: https://twitter.com/rosen_firm. Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. View source version on businesswire.com: http://www.businesswire.com/news/home/20170417005666/en/ ALLIED INTERSTATE: Court Strikes Schafer's Bid to Certify Class --------------------------------------------------------------- The Hon. Janet T. Neff entered an order in the lawsuit titled LISA J. SCHAFER individually and on behalf of similarly situated persons v. ALLIED INTERSTATE LLC, et al., Case No. 1:17-cv-00233- JTN-ESC (W.D. Mich.), striking the Plaintiff's motion for class certification. Plaintiff's Motion for Class Certification shall be stricken from the record for the reason that Plaintiff has failed to comply with this Court's Information and Guideline Practice for Civil Cases, which requires a pre-motion conference before filing any dispositive motions, Judge Neff opines. In addition, the Court finds that the Motion is premature. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=I2H9rF7o ALPINE ACCESS: Certification of FLSA Class Sought in "Morse" Suit ----------------------------------------------------------------- The Plaintiffs in the lawsuit styled CAROL MORSE, BECKY NELLOS, SANDY MOROWITZ, and other similarly situated individuals v. ALPINE ACCESS, INC., and SYKES ENTERPRISES, INC., jointly and severally, Case No. 5:17-cv-00235-BKS-ATB (N.D.N.Y.), submit to the Court their pre-discovery motion for conditional collective certification and Court-supervised notice to potential opt-in plaintiffs. Pursuant to the Fair Labor Standards Act, the Plaintiffs move to certify this class: All current and former hourly at-home customer service representatives employed by Alpine Access, Inc. and/or Sykes Enterprises, Inc. ("Defendants") at any time from February 28, 2014 through the date of judgment in this case (the proposed "Collective"). A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=bfmCvAmb The Plaintiffs are represented by: Jason T. Brown, Esq. Nicholas Conlon, Esq. JTB LAW GROUP, L.L.C. 155 2nd Street, Suite 4 Jersey City, NJ 07302 Telephone: (877) 561-0000 Facsimile: (855) 582-5297 E-mail: jtb@jtblawgroup.com nicholasconlon@jtblawgroup.com - and - Kevin J. Stoops, Esq. Charles R. Ash, IV, Esq. SOMMERS SCHWARTZ, P.C. One Towne Square, Suite 1700 Southfield, MI 48076 Telephone: (248) 355-0300 E-mail: kstoops@sommerspc.com crash@sommerspc.com AMERICAN CHEMICALS: Judge Okays Junk Fax Settlement for $1.55MM --------------------------------------------------------------- Celia Ampel, writing for Daily Business Review, reports that junk faxes may sound like a problem from the '90s -- but they can still lead to large payouts for plaintiffs. A Miami federal judge gave final approval to a $1.55 million nationwide class action settlement for thousands of schools that complained about receiving reams of unsolicited faxes advertising Gorilla Glides, felt pads that go underneath chairs and tables to protect floors. The allegations came under the Telephone Consumer Protection Act, which also covers robocalls and spam text messages. Lawsuits under the TCPA have increased dramatically in recent years, with 44 TCPA lawsuits filed in 2009 and 4,860 filed last year, according to the Wall Street Journal. The law provides for recovery of up to $500 per fax. Gorilla Glides maker American Chemicals & Equipment Inc. sent the faxes every couple of weeks for more than a year, according to class lawyer Arturo Martinez. While most people probably don't look at paper faxes nowadays, that doesn't make spam less of a bother, he said. "On the receiving end, people have it set up so you get them through email, so you don't know what you're getting until you actually open the email up and see that it's junk," said Mr. Martinez of Wallen Hernandez Lee Martinez in Coral Gables. "So the basis of all of this is the annoyance that people have to go through to determine whether this is business-related or not." The plaintiffs class, which includes nearly 14,000 school districts and about 90,000 schools and companies, negotiated a settlement in September just as the trial was set to begin. The case had been "fully litigated," Wallen Hernandez partner Eric Hernandez -- eric@whlmlegal.com -- said, including a contentious discovery battle. Because mass fax records are constantly purged, plaintiffs counsel had to act quickly to get the information they needed. "In this type of lawsuit, the biggest challenge discovery-wise is getting evidence of the transmissions," Mr. Martinez said. "Faxes nowadays are sent electronically and the entities that actually send the faxes do so in batches of thousands at a time." Defense lawyers moved to stay discovery because of two pending U.S. Supreme Court rulings, which they argued would lead to the dismissal of the case: one on whether the plaintiffs suffered actual injuries and one on offers of judgment. The defense made a $7,500 offer of judgment to the lead plaintiff, a Miami bartending school that allegedly received five faxes, but the offer was declined. U.S. District Judge Kathleen Williams denied the motion to stay in December 2015, just four months after the case was filed, and plaintiffs counsel started digging into the records. They found the Colorado-based company hired to send the faxes, WestFax, and received from it all the invoices for transmissions. American Chemicals & Equipment also produced its own fax logs, and plaintiffs counsel contacted a third company responsible for handling opt-out requests from fax recipients. "That reflected people opting out and sending notices to the defendants requesting not to be sent further faxes," Martinez said. Just before the trial was set to start, Judge Williams directed the parties to try to negotiate one last time, and they reached a settlement that includes an injunction against sending unsolicited faxes and a $1.55 million payout over five years. The settlement resolves two lawsuits, one filed in Miami and the other in Alabama. Each class member will receive $500 per copy of a qualifying fax, or up to $325 for claims submitted without copies. Judge Williams approved about $517,000 in attorney fees and $42,000 in costs for Martinez, Hernandez, their colleague Jermaine Lee and New York co-counsel Aytan Bellin of Bellin & Associates, and Jeffrey Eilender of Schlam Stone & Dolan. The payouts resulting from TCPA lawsuits led defense attorneys to tell the Wall Street Journal that the law's name should stand for "Total Cash for Plaintiffs' Attorneys," arguing no one should receive such high sums just because they received a handful of faxes a year. But recipients say the faxes are a nuisance, and the Federal Communications Commission has logged more than 10,000 consumer complaints about junk faxes since late 2014, according to the Journal's March article. Defense attorneys in the Gorilla Glides case did not immediately respond to a request for comment. The case was defended by Blank Rome attorneys Ana Tagvoryan -- ATagvoryan@BlankRome.com -- in Los Angeles, Paul Sodhi in Fort Lauderdale and Jeffrey Rosenthal in Philadelphia; Robert Brochin and Brian Ercole of Morgan, Lewis & Bockius in Miami and David Guin of Guin, Stokes & Evans in Birmingham, Alabama. AMETEK INC: Faces "Cox" Suit Over Groundwater Contamination ----------------------------------------------------------- The Plaintiff in the case captioned, Adam Cox and Ronald Cos, on behalf of himself and others similarly situated, Plaintiffs v. Ametek, Inc., Thomas Deeney, Senior Operations LLC and Does 1 through 100, inclusive, Defendants, Case No. 3:17-cv-00597-BAS-NLS (S.D. Cal., March 27, 2017), brings this lawsuit on behalf of himself and all others who resided in or owned a mobile home at Greenfield, Starlight, and/or Villa Cajon, specifically: "All persons who have resided or do now reside, and/or all persons who have owned or do now own a mobile home, situated above the contaminated groundwater plume, at Greenfield, Villa Cajon, and/or Starlight mobile home parks." The Plaintiff and the members of the Class have all suffered injury in fact as a result of the exposure to harmful toxins to their person and their property, which was the result of Defendants' unlawful, intentional, and grossly negligent conduct, says the complaint. Despite knowledge of groundwater contamination at extremely high levels, AMETEK made a cold, calculated business decision to simply walk away without any effort to clean up or remediate the groundwater contamination, the complaint adds. Ametek is an American global manufacturer of electronic instruments and electromechanical devices. The Plaintiffs are represented by: Scott Summy, Esq. John P. Fiske, Esq. Celeste Evangelisti, Esq. BARON & BUDD, P.C. 603 Coast Hwy, Suite G Solana Beach, CA 92075 Telephone: (214) 521-3605 E-mail: Fiske@BaronBudd.com - and - John H. Gomez, Esq. Deborah Dixon, Esq. GOMEZ TRIAL ATTORNEYS 655 West Broadway, Suite 1700 San Diego, CA 92101 Telephone: (619) 237-3490 E-mail: DDixon@GomezTrialAttorneys.com ANZ SECURITIES: High Court Hears Oral Arguments in Class Action --------------------------------------------------------------- Antoinette Gartrell, writing for Bloomberg BNA, reports that justices asked about the impact of a class action timeliness rule on both investors and the lower courts during an April 17 oral argument at the U.S. Supreme Court (Calif. Pub. Emp. Ret. Sys. v. ANZ Securities, Inc., U.S., No. 16-373, 4/17/17). The district courts could be flooded with "make-work" under the defendant investment bank's argument, Justice Elena Kagan said. The dispute concerns whether the filing of a class action stops the clock on a three-year time limit set out in securities law provisions governing when lawsuits must be filed. The issue is important to institutional investors who often opt out of securities class litigation to bring their own individual suits. The resolution depends on whether the high court's previous tolling decision-- that the commencement of a class action suspends the applicable statute of limitations as to all would-be class members -- applies. The justices agreed to tackle the topic two years ago in an unrelated case, but the parties settled their differences before oral argument. California Public Employees' Retirement System (CalPERS) opted out of a class action and brought an individual suit in 2011 claiming that the underwriters of $31 billion in Lehman Brothers Holdings' debt offerings didn't disclose risks related to Lehman's exposure to subprime mortgages in the years before its demise. During arguments, CalPERS' attorney Thomas C. Goldstein of Goldstein & Russell PC, Bethesda, Md., told the court that his client's suit was, in essence, the same action as the class suit because it involved the same allegations. "The class action complaint, in the passive voice, brought the action on our behalf, and then we just took control of it when we opted out," he said. "All that happens is we have different lawyers," Mr. Goldstein said. "There's no additional surprise," he said in assuring the justices that it was a mere formality that "just involves more paperwork." The April 17 oral argument took place on Justice Neil Gorsuch's first day on the job. During the arguments, Gorsuch focused on the proper meaning of the term "action" found in the provision and why the court shouldn't follow the traditional interpretation of the word. ANZ Securities Inc.'s attorney, Paul Clement -- paul.clement@kirkland.com -- a former U.S. solicitor general and partner at Kirkland & Ellis, Washington, said that statutes of repose, which limit civil liability, aren't subject to tolling. It's only when investors wish to go outside of the class action to get a "better deal," that they have to concern themselves with the timeliness issue, he said. "I'm sorry, 2011 is too late under the plain terms of the statute," Clement said. Washington lawyer Daniel S. Sommers -- dsommers@cohenmilstein.com -- Cohen Milstein Sellers & Toll PLLC, who represents investors in class actions, told Bloomberg BNA that it's too difficult to predict how the justices will rule, but said that it was worth noting that five members of the court -- Justices Kagan, Ruth Bader Ginsburg, John Roberts, Stephen Breyer and Sonia Sotomayor - - "expressed significant concerns about the practical implications on investors of ANZ's position that investors must file a separate action within three years of the issuance of a security in order to protect their rights." Mark R.S. Foster -- mfoster@mofo.com -- of Morrison & Foerster LLP, San Francisco, who represents public companies in securities class actions, said in a statement that no matter how the justices decide, it's unlikely that it will have a significant effect on securities litigation over the long term. ANZ SECURITIES: Justice Gorsuch Less Sympathetic to Plaintiffs -------------------------------------------------------------- Tony Mauro, writing for The National Law Journal, reports that New Justice Neil Gorsuch's first foray into securities class action law on the U.S. Supreme Court came on his first day on the bench on April 17. Though he did not tip his hand explicitly, he showed less sympathy for plaintiffs than for defendants. His predecessor, the late Antonin Scalia, usually expressed similar preferences, so the court may be ready to take on class action reforms again. The case before the court, California Public Employees' Retirement System v. ANZ Securities, dealt with a narrow issue of deadlines for initiating litigation. But it comes up when investors seek to opt out of settlements and sue issuers individually for false information in registrations. The Securities Act of 1933 states that lawsuits cannot be filed more than three years after the securities offering. But citing a 1974 Supreme Court precedent American Pipe & Construction v. Utah, CalPERS claims that deadline can be tolled or delayed while class actions are under way. "All manner of satellite litigation" could proliferate if statutory deadlines are interpreted too strictly, Tom Goldstein of Goldstein & Russell told the justices on behalf of the California pension fund, the largest in the nation. Because of the complexity of securities litigation, a three-year "statute of repose" limit advocated by defendants is too short, Goldstein argued, and would compel investor groups to file separate litigation early to protect their rights to opt out of class actions. But Paul Clement of Kirkland & Ellis disputed Goldstein's "parade of horribles," noting that the three-year statute of repose has been in place for several years in the Second Circuit, without an avalanche of new litigation. Justice Anthony Kennedy seemed especially hostile to Goldstein's position, suggesting it was "an attack on statutes of repose generally." Justice Gorsuch asked Goldstein "where is the ambiguity" in the Securities Act provision, suggesting he did not think tolling should apply to the three-year limit. Justice Gorsuch's views may not be surprising, given Justice Gorsuch's description -- albeit years ago -- of class actions as a "free ride to fast riches" for plaintiffs that needed to be reined in. Justice Gorsuch asked only one set of questions --fewer than during the other two arguments earlier in the day. "Securities fraud litigation imposes an enormous toll on the economy," Justice Gorsuch wrote in a column for Legal Times while in private practice in 2005. Justice Elena Kagan, for her part, seemed sympathetic toward plaintiffs on April 17, suggesting that the three-year limit could stifle class action opt-outs. "We're used to thinking that the opt-out right is a very important part of class actions," Justice Kagan said. "It's what saves them from a due process problem, that people actually do get to say, 'I don't want any part of this.'" The case before the court stems from the financial crisis of 2008. CalPERS sued the bankrupt Lehman Brothers and ANZ Securities, one of its underwriters, claiming false statements in registration documents. The pension fund had been part of a class action, but it opted out after a settlement was reached. The timeline resulted in a conflict between statutory provisions that impose a deadline on when such lawsuits must be filed. The U.S. Court of Appeals for the Second Circuit ruled that the three- year deadline could not be put off. But the Second Circuit ruling also said the issue was "ripe for resolution by the Supreme Court" because of a circuit split over the issue. The U.S. Chamber of Commerce warned the high court that if the Second Circuit is overruled, "the statute of repose in the Securities Act, and presumably any other federal or state statute of repose, may be circumvented by the simple expedient of filing a complaint on behalf of a putative class." That would expose business defendants to liability long after "they are entitled to peace," the brief added. William Jay of Goodwin Procter was counsel of record on the brief. But Public Citizen, in a brief by Scott Nelson, said that imposing a strict "statute of repose" would "significantly impair opt-out rights of absent class members." ANZ SECURITIES: S.C. Tackles Time Limits Issue Under Section 13 --------------------------------------------------------------- Carmen Germaine, writing for Law360, reports that the U.S. Supreme Court on April 17 wrestled with language in a statutory time limit on securities class actions, with the liberal members of the court also expressing concerns about the policy implications of applying a hard deadline to class members' opt-out claims. A full bench of nine justices heard arguments over whether a three-year time limit on certain securities claims can be tolled by the filing of a class action. The appeal involves California Public Employees' Retirement System, which had opted out of a settlement class to pursue its own claims against several banks that underwrote Lehman Brothers bond offerings, only to have its claims dismissed on timeliness grounds. The justices predictably focused on how to interpret time limits set forth in Section 13 of the Securities Act of 1933. That section requires investors to bring claims over a securities offering or a registration statement within one year of discovering an alleged violation, but says that "in no event shall any action" be brought more than three years after the security was offered. The defendant banks have argued that the three-year bar qualifies as a statute of repose that can't be tolled, while CalPERS says otherwise. "When I see the word 'action', I think of lawsuit, traditionally, and 'claim' as the claims within the lawsuit. And the laws often distinguish between actions and claims. The securities laws do, routinely," said newly minted Justice Neil Gorsuch, according to a transcript of the arguments. "Here, why -- why shouldn't we follow the plain language and the traditional understanding of the term 'action?'" The CalPERS case stems from a class action filed by another retirement fund in June 2008 alleging that several dozen financial firms -- including ANZ Securities Inc., Citigroup Global Markets Inc. and HSBC Securities (USA) Inc. -- involved in underwriting debt offerings from global investment bank Lehman Brothers Holdings Inc. were liable for false and misleading statements in Lehman's registration statements. When the litigation stalled, class member CalPERS filed its own suit in 2011, which was later consolidated with the class claims. When the proposed class reached a settlement later that year and was certified for settlement purposes, CalPERS opted out to pursue its claims individually. But the district court dismissed the pension fund's claims as untimely because they were not brought within three years of the debt offerings. CalPERS argued on appeal that the decision conflicted with the Supreme Court's 1974 ruling in American Pipe & Construction Co. v. Utah, which established that the filing of a putative class action tolls the statute of limitations for all members of a proposed class who make timely motions to intervene after a court denies class certification. The Second Circuit, however, found that the three-year time limit in Section 13 constitutes a statute of repose and therefore American Pipe tolling does not apply. In the April 17 oral arguments, many justices focused on the language of the statute, questioning, as Justice Gorsuch did, whether Section 13's time limits apply to any lawsuit, even an opt-out party bringing claims that were raised in a class action, or if they merely apply to claims that could be common to both a class action and individual litigation. "Well, what does the term 'such action' mean?" Justice Samuel Alito asked an attorney for CalPERS, Thomas C. Goldstein of Goldstein & Russell PC. Mr. Goldstein responded that the petitioners believe "action" refers to "an action that is otherwise subject to the discovery rule," requiring would-be plaintiffs to file actions within one year of discovering a violation. Some liberal justices posed similar questions to Kirkland & Ellis LLP partner and famed appellate lawyer Paul D. Clement as he argued for the underwriters. Justice Sonia Sotomayor asked Mr. Clement whether under his theory, action would refer to a new complaint, "even though it's asking for the same relief . . . by the same party?" Mr. Clement replied that it would, but said the statute wouldn't block claims from parties who filed motions to intervene in the class action, as long as those motions were timely filed. The liberal justices also probed Clement on the practical consequences of interpreting Section 13 as a statute of repose that can't be tolled. Justice Elena Kagan suggested that adopting that interpretation would harm small investors who wouldn't have "the faintest idea" that they would need to file a timely motion to intervene in order to protect their claims. "So this is a rule that's kind of guaranteed to create make-work for district courts, to be essentially irrelevant for large investors, and for small investors to lose their claims," Justice Kagan said. But Mr. Clement disputed that such a ruling would create a "parade of horribles," saying that in "almost four years of experience with this rule in the Second Circuit," courts have seen few opt- outs and limited practical consequences. Not every justice appeared concerned with the policy implications of the case. As many predicted, Justice Gorsuch signaled he would likely be keeping his focus on the statutory text when Goldstein said that he didn't think courts would say a second complaint is "a new action" if bilateral securities litigation is split into two cases. "Why not?" Justice Gorsuch asked. "I mean, I don't like the policy consequences, but as a matter of plain language, why wouldn't we?" But the case may not split evenly along the court's usual ideological fault lines. Chief Justice John Roberts said at the end of Mr. Clement's argument that there are "different levels of repose," and suggested that as long as a claim is filed within Section 13's time limit, the statute wouldn't give certainty to companies facing litigation. "I mean, the liability is the same if you have the class action, including CalPERS, and, as it is, if you then have -- you're facing the class action without CalPERS, but another CalPERS suit," Chief Justice Roberts said. "I'm not, you know, sure that that increases your liability." Mr. Clement disagreed, responding that both he and his clients were "absolutely sure" it would increase liability "because they know from experience that the only thing worse than having a class action against you is having a class action and some individual actions against you." Lyle Roberts -- lroberts@cooley.com -- a partner at Cooley LLP who provided pro bono assistance on an amicus brief in the case for the Washington Legal Foundation, said Justice Roberts' questions to Mr. Clement were perhaps the most interesting moment of the arguments, and seemed to suggest that the chief justice was sympathetic to the notion that there wouldn't be a burden on the defendants if the time limit weren't enforced against opt-out claims. "My impression is it's going to be a close call either way," Lyle Roberts said. "It certainly looks like the justices were largely showing their cards in their questions." CalPERS is represented by Thomas C. Goldstein and Tejinder Singh - - tsingh@goldsteinrussell.com -- of Goldstein & Russell PC and Darren J. Robbins, Joseph D. Daley -- joed@rgrdlaw.com -- and Thomas E. Egler -- tome@rgrdlaw.com -- of Robbins Geller Rudman & Dowd LLP. The underwriters are represented by Paul D. Clement, Jeffrey M. Harris and Matthew D. Rowen of Kirkland & Ellis LLP, and Victor L. Hou and Jared Gerber of Cleary Gottlieb Steen & Hamilton LLP. The case is California Public Employees' Retirement System v. ANZ Securities Inc. et al., case number 16-373, in the Supreme Court of the United States. ANZ SECURITIES: Several Justices Sympathetic to CALPERS Arguments ----------------------------------------------------------------- Hazel Bradford, writing for Pensions & Investments, reports that the Supreme Court heard arguments on April 17 in a case brought by CalPERS seeking to uphold a legal precedent on how much time investors have to join or opt out of class-action lawsuits. Related Content Several justices seemed sympathetic to arguments raised by Thomas C. Goldstein -- tgoldstein@goldsteinrussell.com -- partner at Goldstein & Russell, attorney for the $316 billion California Public Employees' Retirement System, Sacramento, that enforcing strict deadlines for investors to file actions separate from related class lawsuits on the same issues will "amount to a huge amount of pointless paperwork" if investors feel the need to file separate lawsuits. "There are practical implications," Justice Sonia Sotomayor said. "From the perspective of institutional investors, this case is of enormous importance," said Daniel S. Sommers, partner and co- chairman of Cohen Milstein law firm's securities group, in an interview. If the Supreme Court agrees with the defendants -- underwriters of Lehman Brothers debt offerings -- as well as the 2nd U.S. Circuit Court of Appeals in New York, which in 2013 interpreted securities law to mean strict deadlines, "investors are going to have become much more proactive to protect their rights." A Supreme Court decision will be issued before the session ends in late June. ANZ SECURITIES: Chief Justice Likely Swing Vote for Opt-Outs ------------------------------------------------------------ Alison Frankel, writing for Reuters, reports that at oral arguments on April 17 at the U.S. Supreme Court in California Public Employees' Retirement System v. ANZ Securities, the justices seemed to fall into predictable camps -- with one crucial -- and potentially dispositive -- exception. The case, as you probably recall, presents the question of whether the filing of a securities class action extends the statute of repose as well as the statute of limitations. Justices Samuel Alito and Anthony Kennedy seemed skeptical that the time limitation specified in the Securities Act of 1933 -- which says that "in no event shall any such action be brought . . . more than three years after the security was bona fide offered to the public" -- can be read as anything but a defendant's right to be free from new lawsuits after three years. Justice Neil Gorsuch suggested strict adherence to the text of the statute. (Justice Clarence Thomas was silent.) On the court's liberal wing, Justice Stephen Breyer was tough to read, but Justices Elena Kagan, Ruth Ginsburg and Sonia Sotomayor appeared to support a loose reading of the Securities Act's time limitation. The practical consequences of a strict three-year time limit, they suggested, could be a flood of protective filings that would swamp trial judges' dockets or else an unintended restriction on the rights of shareholders who thought they were covered in class actions. Justices Ginsberg and Kagan said it's not even clear that the Securities Act provision is meant to be a statute of repose. You've surely noted which justice I haven't yet mentioned. Yep: the Chief, John Roberts. With the usual caveat that oral arguments are not necessarily a reliable indicator of how cases will be decided, Chief Justice Roberts could well be the swing vote to extend time limits for class members who want to sue on their own. The chief justice was mostly quiet when CalPERS lawyer Thomas Goldstein of Goldstein & Russell argued that because a class action against Lehman debt underwriters asserted the same Securities Act claims as a separate CalPERS suit filed more than three years after the debt offerings, "the class complaint . . . which was filed within a year, brought the action on our behalf." Goldstein told the justices that if they held otherwise, big pension funds like his client would be forced to file placeholder complaints or motions to intervene in pending class actions in order to protect their right to opt out later on. The only reason there hasn't already been a flood of protective filings, Mr. Goldstein said, is that investors' lawyers tend not to file Securities Act suits in a rising stock market. Chief Justice Roberts asked him to explain; Mr. Goldstein said that investors can only recover damages for securities that lose value after their public offering. That scenario, Goldstein said, has been rare in recent years. The chief justice stayed out of the fray when Justices Ginsburg, Kagan and Sotomayor peppered underwriters' counsel Paul Clement of Kirkland & Ellis with questions about whether the Securities Act time limit is really a statute of repose and, if so, exactly what actions it bars. Mr. Clement reiterated his central point: The Supreme Court said in 1991's Lampf, Pleva v. Gilbertson that the three-year Securities Act time limit is a statute of repose and said in 2014's CTS v. Waldburger that statutes of repose cannot be tolled -- so, under the court's own precedent, CalPERS can't get around the absolute three-year time bar. "A statute of repose means repose," Clement said. "Its defining feature is that it's not subject to tolling or estoppel rules." That statement got the chief justice's attention. "No," he said. "There's different levels of repose." Goldstein's theory, Chief Justice Roberts said, is that a statute of repose gives defendants a right to be free from unannounced liability -- but because a class action already exposes the defendant to liability to future opt-outs, the statute of repose doesn't bar later-filed individual suits by putative class members. When a class action has been filed, Roberts said to Clement, "There aren't going to be any more surprises. You know what's on the table. That's repose." Mr. Clement responded that repose means no new actions and no exposure to additional liability. The chief justice countered that it's not clear to him that opt-outs from a class action subject defendants to new liability. This late exchange between Justice Roberts and Mr. Clement could be the most important moment of the case -- assuming that the Supreme Court wants to answer the big question of whether class actions extend the statute of repose for investors who are part of the class. Interpreting repose as the right to be free from additional exposure, rather than additional lawsuits, would allow the Supreme Court to bypass complications like the interplay between the Rules Enabling Act and the federal civil procedure rules for class actions and competing due process rights of plaintiffs and defendants. Of course, Justice Roberts could just have been livening up the last quarter-hour of a long day at the Supreme Court. Justice Roberts could end up agreeing with the conservative justices that the statutory language of the Securities Act bars individual suits filed outside of the three-year time window, regardless of whether a class action is on file. Or the court could decide the case on the specific facts and hold CalPERS suit was untimely because it was not, strictly speaking, an opt-out from the class action. But if the chief justice sides with the liberal wing to preserve plaintiffs' rights, we may have to start to revise conventional wisdom about the Roberts Court. ANZ SECURITIES: SC Justices Divided on Statue of Repose Issue ------------------------------------------------------------- Joshua D. Yount, Esq. -- jdyount@mayerbrown.com -- of Mayer Brown, in an article for Mondaq, reports that on April 17, the Supreme Court heard oral argument in CalPERS v. ANZ Securities, a case that asks whether a plaintiff asserting violations of Section 11 of the Securities Act of 1933 can file suit after the three-year outer limit for such suits has passed, if a class action encompassing the plaintiff's claims was timely filed and remained pending. The answer to that important question, which has divided the federal courts of appeals, will tell defendants facing suit over the issuance of securities whether the Securities Act's three-year repose period is a real protection against belated lawsuits or simply a limited protection that dissolves once a timely class action is filed. The April 17 argument suggested the Court, too, may be divided about how to resolve this debate. CalPERS is an individual suit by a state pension fund against underwriters for certain debt securities issued by Lehman Brothers. The suit was brought more than three years after the issuance of the securities. But, at the time, a timely putative class action asserting similar claims was pending. CalPERS was dismissed, and the dismissal was affirmed, because the suit was filed outside the three-year period of repose established by Section 13 of the Securities Act and Second Circuit precedent (Police & Fire Retirement System of Detroit v. IndyMac MBS, Inc., 721 F.3d 95 (2d Cir. 2013)) precluded any tolling of that repose period. In the Supreme Court, CalPERS challenged that ruling on several grounds. It argued that its suit was not barred because the class action was timely and its suit simply followed from the claims raised in the class action. CalPERS also contended that the class action tolling rule for statutes of limitations established in American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974), should apply to Section 13's restriction on suits filed more than three years after issuance of the relevant securities -- notwithstanding Supreme Court precedents holding that equitable tolling does not apply to statutes of repose (CTS Corp. v. Waldburger, 134 S. Ct. 2175 (2014)) and that the three-year restriction in Section 13 was a repose period inconsistent with tolling (Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350 (1991)). CalPERS finally asserted that, without tolling, opt-out rights would become illusory and courts would be flooded with suits by individual class members concerned about Section 13. Defendants pointed to the contrary Supreme Court precedent. They noted that courts in the Second Circuit have not been inundated with protective suits. And they explained that applying tolling would incentivize big investors to free-ride off of class actions for years and then opt-out of settlements to claim a greater recovery than other investors. Much of the oral argument focused on the meaning of the word "action" in the relevant part of Section 13--"In no event shall any such action be brought to enforce a liability created under [Section 11] more than three years after the security was bona fide offered to the public." Justices Gorsuch and Alito pressed counsel for CalPERS on the argument that its individual suit should not be treated as a new "action" for purposes of Section 13 because it mirrored the previously filed class action. Justice Gorsuch made the textual point that traditionally "action" means "lawsuit" and is not the same as "claim." Justice Alito seemed to doubt that Congress could have intended the less straightforward reading favored by CalPERS. Justice Breyer's questioning of both sides also concentrated on whether "action" could somehow refer to a timely class action encompassing claims presented in a later individual suit by a class member. Justice Kagan, meanwhile, suggested that the term "action" might have multiple meanings, making it appropriate to consider the practical consequences of defendants' position. Chief Justice Roberts similarly asked about different "levels of repose," raising the possibility that the repose period established by Section 13 merely precludes "new liability." Based on this approach, an individual suit might not add to the potential liability asserted by the class action when the individual claims were part of the class action. As counsel for defendants pointed out, the approaches described by Justice Kagan and the Chief Justice cannot be squared with the text of Section 13, Supreme Court precedents in this area, or the reality that individual suits like the one filed by CalPERS are new suits by new parties that increase a defendant's potential liability. Another big topic focused on the practical consequences of enforcing Section 13's repose period against individual suits despite a timely filed class action. Justices Sotomayor, Breyer, and Ginsburg all expressed concern about how defendants' approach would work in practice. Of particular concern was the burden that lower courts might face when numerous individual putative class members file papers to protect themselves from the repose period. Counsel debated whether those concerns had merit, with respondents' counsel noting that courts in the Second Circuit have not seen an epidemic of such filings. Perhaps of greatest interest to class action observers more generally, Justice Kennedy worried that CalPERS's position would invoke Rule 23 to override a legal right to repose (i.e., a substantive defense) in violation of the Rules Enabling Act. Justice Kagan, by contrast, worried that defendants' position could undermine the opt-out right created by Rule 23. Justice Kagan also probed whether Section 13 actually is a statute of repose rather than a discovery-rule cut-off. And Justice Ginsburg asked whether American Pipe tolling was really equitable tolling. With oral argument suggesting that the Justices could be closely divided, a confident prediction of how the Court will rule is not possible. But it would seem difficult for the Court to rule for CalPERS unless it departs from the plain meaning of Section 13 and retreats from its prior decisions in Waldburger and Lampf. We will see in June. Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe -- Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions. ASCEND FUNDING: Faces Class Action Over Solicitation Calls ---------------------------------------------------------- Noddy A. Fernandez, writing for Northern California Record, reports that a Huntington Beach man has filed a class-action against a business funding company over allegations of unwanted solicitation calls. Joseph Menichiello, individually and on behalf of all others similarly situated, filed a complaint on April 4 in the U.S. District Court for the Central District of California against Ascend Funding LLC and Does 1 through 10 alleging that they violated the Telephone Consumer Protection Act. According to the complaint, the plaintiff alleges that in November 2016, he started receiving calls from the defendant to his cellular telephone attempting to promote its services without his consent. The plaintiffs holds Ascend Funding LLC, and Does 1 through 10 responsible because the defendants allegedly used an automatic telephone dialing system and called the plaintiff even though his number has been registered on the National Do-Not-Call List. The plaintiff requests a trial by jury and seeks up to $1,500 in damages for each call and any other relief that the court deems just and proper. He is represented by Todd M. Friedman, Adrian R. Bacon and Meghan E. George of Law Offices of Todd M. Friedman PC in Woodland Hills. U.S. District Court for the Central District of California Case number 8:17-cv-00609 AURORA BULL: Faces "Gabryszak" Suit Over FLSA, IMWL Breach ---------------------------------------------------------- Dmitri Gabryszak and Julie Carlock, on behalf of themselves and all others plaintiffs similarly situated, Plaintiffs v. Aurora Bull Dog Co., Defendant, Case No. 1:17-cv-02224 (N.D. Ill., March 22, 2017), seeks to recover wages and overtime for violation of the Fair Labor Standard Act and Illinois Minimum Wage Law. The Defendant misclassified Plaintiffs as a tip-credit employee, says the complaint. Plaintiffs were employed as servers for Aurora Bull Dog. Defendant Aurora Bull Dog Co. is an Illinois corporation owning and operating several restaurants known as "Bulldog Ale House".[BN] The Plaintiffs are represented by: David Fish, Esq. Kimberly Hilton, Esq. John Kunze, Esq. The Fish Law Firm 200 E 5th Ave Suite 123 Naperville, IL 60563 AVANGRID INC: Awaits Final Approval of Merger Suit Settlement ------------------------------------------------------------- Avangrid, Inc., awaits final approval of its settlement to resolve a purported class action lawsuit challenging its acquisition of UIL Holdings Corporation, according to the Company's March 10, 2017, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2016. The Company said: "On February 27, 2015, a complaint was filed in Connecticut state court against us, UIL, its board of directors and others related to our acquisition of UIL. The complaint is a class action filed on behalf of all UIL shareowners. The complaint generally alleges that UIL's directors breached their fiduciary duties by failing to maximize shareowner value in negotiating and approving the acquisition, and that we, UIL, and/or Morgan Stanley aided and abetted the UIL Board's alleged breaches." "On November 30, 2015, the plaintiffs and the defendants executed a binding Memorandum of Understanding, or MOU, that sets forth the terms on which the parties have agreed to settle the consolidated action. The settlement terms do not include any change in the acquisition consideration but only additional disclosures relating to information included in our Registration Statement on Form S-4 filed with the SEC, which was declared effective on November 12, 2015, additional confirmatory discovery, and plaintiffs' counsel fees. The parties have agreed on the fees and submitted the unopposed settlement and dismissal to the Court on August 26, 2016." On November 4, 2016, the Court issued its preliminary approval of the settlement, there were no objections to the settlement, and on January 30, 2017, the Court held a final settlement hearing. A final decision is pending. The Company says it cannot predict the ultimate outcome of this matter. Avangrid, Inc., formerly Iberdrola USA, Inc., is a New York corporation headquartered in New Haven, Connecticut. AVANGRID is a diversified energy and utility company with more than $30 billion in assets and operations in 26 states. The Company operates regulated utilities and electricity generation through two primary lines of business. Avangrid Networks includes eight electric and natural gas utilities, serving 3.1 million customers in New York and New England. Avangrid Renewables operates 6.5 gigawatts of electricity capacity, primarily through wind power, in states across the United States. BANK OF THE OZARKS: Class Suit in Pre-Trial Discovery ----------------------------------------------------- Bank of the Ozarks, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on March 1, 2017, for the fiscal year ended December 31, 2016, that the parties in a class action lawsuit are now engaged in pre-trial discovery and have agreed to participate in non-binding mediation regarding the plaintiff's claims. On December 19, 2011, the Company and Bank were named as defendants in a purported class action lawsuit filed in the Circuit Court of Lonoke County, Arkansas, Division III, styled Robert Walker, Ann B. Hines and Judith Belk vs. Bank of the Ozarks, Inc. and Bank of the Ozarks. On December 20, 2012, the Bank was named as a defendant in a purported class action lawsuit filed in the Circuit Court of Pulaski County, Arkansas, Ninth Division, styled Audrey Muzingo v. Bank of the Ozarks. Subsequently, counsel for the plaintiffs in the Walker case and counsel for the plaintiff in the Muzingo case have reached an agreement whereby Ms. Muzingo is now considered a member of the class in the Walker case. The complaint challenges the manner in which overdraft fees were charged and the policies related to the posting order of payments. In addition, the complaint alleges violations of the Arkansas Deceptive Trade Practices Act. The complaint seeks to have the case certified by the court as a class action for all Bank account holders located in the State of Arkansas similarly situated, and seeks (1) a declaratory judgment as to the wrongful nature of the Bank's overdraft fee policies, (2) restitution of overdraft fees paid by the plaintiffs and the putative class as a result of the actions cited in the complaint, (3) disgorgement of profits as a result of the alleged wrongful actions, (4) unspecified compensatory and statutory or punitive damages, and (5) pre-judgment interest, costs, and plaintiffs' attorneys' fees. The Company and the Bank filed a motion to dismiss and to compel arbitration pursuant to the terms of the consumer deposit account agreement, which was denied by the trial court. The Company and the Bank appealed the trial court's ruling to the Arkansas Supreme Court on an interlocutory basis. The Arkansas Supreme Court recently affirmed the trial courts' decision to deny the Company and Bank's motion to compel arbitration, finding that there was no mutual agreement or obligation to arbitrate under the terms of the subject deposit account agreement. The Company and Bank filed a Petition for Writ of Certiorari with the Supreme Court of the United States requesting that the Supreme Court of the United States review the Arkansas Supreme Court's decision, but that request was denied. The parties are now engaged in pre-trial discovery and have agreed to participate in non-binding mediation regarding the plaintiff's claims. Bank of the Ozarks provides a wide range of retail and commercial banking services. BAXTER INT'L: Faces Saline Price Fixing Probe Amid Class Action --------------------------------------------------------------- Lauren Thomas, writing for CNBC.com reports that Baxter International said one of its employees received a grand jury subpoena in a case about intravenous saline pricing and sales. Baxter said on April 14 the subpoena, obtained by federal investigators, is "pursuant to a criminal investigation." It calls for the employee to produce documents and testimony related to pricing, shortages of Baxter's intravenous solutions "and communications with competitors regarding the same," the company said. Baxter disclosed in February that the New York attorney general had asked for information about its business practices in the IV saline industry, and a class action lawsuit filed last year accused the pharmaceutical company of participating in a conspiracy of sorts to "fix" saline solution prices. Revenues in the company's so-called fluid systems segment, which includes the intravenous saline sales being called into question, was $2.3 billion last year, representing slightly more than 25 percent of total sales. The health-care company said in the April 14 SEC filing that it is cooperating with this latest criminal investigation. BCB BANCORP: Awaits Order on Bids in Suit to Recover $1MM in Fees ----------------------------------------------------------------- BCB Bancorp, Inc., awaits decisions on the parties' motions for summary judgment pending in the lawsuit seeking to recover $1,000,000 in fees from insurance carriers, according to the Company's March 13, 2017, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2016. The Company, as the successor to Pamrapo Bancorp, Inc., and in its own corporate capacity, was a named defendant in a shareholder class action lawsuit, Kube v. Pamrapo Bancorp, Inc., et al., filed in the Superior Court of New Jersey, Hudson County, Chancery Division, General Equity (the "Action"). On September 21, 2015, the court entered an Order and Final Judgment ("Judgment"), whereby the Stipulation of Settlement ("Stipulation") agreed to by the plaintiff class, the Company and the remaining defendants was approved. Pursuant to the Stipulation, the plaintiff class's counsel reserved the right to seek an award of counsel fees and litigation expenses ("Fees Motion"). The maximum amount which may be awarded as a result of the Fees Motion is $1,000,000.00. The plaintiff class's counsel has made a Fee Motion to the court seeking a final award of counsel fees and litigation expenses of approximately $1,000,000.00. The Company and the remaining defendants have vigorously opposed that motion. It is anticipated that the court will schedule a hearing date for the Fee Motion in March 2017. The Company and the other defendants in the Action ("Plaintiffs") brought an action ("Carrier Suit") against Progressive Insurance Company ("Progressive"), the Directors' and Officers' Liability insurance carrier for Pamrapo Bancorp, Inc., at the time of its merger with the Company on July 6, 2010, and Colonial American Insurance Company ("Colonial"), the Directors' and Officers' Liability insurance carrier for the Company at the time of the merger. The Carrier Suit seeks, among other claims, indemnification, payment of and/or contribution toward the above settlement, payment of and/or contribution toward the above award of interim attorney's fees to the plaintiff class's counsel, payment of and/or contribution toward any future award of attorney's fees to the plaintiff class's counsel, and reimbursement of the attorney's fees and defense costs incurred by the Plaintiffs in defending the Action and pursuing the Carrier Suit. Progressive made a motion to dismiss the Carrier Suit in 2014. The Plaintiffs opposed that motion. That motion was administratively terminated by Order of the court, dated December 3, 2014. By Order of the court, dated December 3, 2014, the Plaintiffs' motion to file an Amended Complaint was granted. On or about January 6, 2015, Progressive again made a motion to dismiss the Carrier Suit. The Plaintiffs opposed that motion. That motion was denied by oral decision on October 22, 2015, and by written Order, dated January 20, 2016. A Mediation session ("Mediation") was held on March 11, 2015, among the parties. Following the Mediation, the Plaintiffs and Colonial agreed to settle the Plaintiffs' claims against Colonial for $1,750,000.00. A Settlement Agreement and Release, dated June 30, 2015, was entered into by the Plaintiffs and Colonial. The Plaintiffs received the settlement amount of $1,750,000.00 from Colonial on July 9, 2015. The Plaintiffs and Progressive did not settle their respective claims at the Mediation. The Carrier Suit continues with respect to these parties. Initial discovery has been exchanged between the parties. By Order of the court, dated August 10, 2016, the parties were granted permission to serve and file motions for summary judgment by November 9, 2016. Prior to consideration of these motions, a Settlement Conference was scheduled before the court on November 16, 2016. The Plaintiffs and Progressive did not settle their respective claims at that Settlement Conference. The parties have filed motions for summary judgment. These motions were returnable before the court on December 5, 2016. A decision on these motions has not been received from the court to date. All discovery has been stayed until disposition of these motions. The Company says the Plaintiffs are vigorously pursuing full recovery. BCB Bancorp, Inc., is a New Jersey corporation established in 2003, and is the holding company parent of BCB Community Bank. The Company has not engaged in any significant business activity other than owning all of the outstanding common stock of BCB Community Bank. The Company's executive office is located in Bayonne, New Jersey. BERKS COUNTY, PA: Detained Immigrants File Class Action v. AG ------------------------------------------------------------- Mark Dent, writing for Billy Penn, reports that a judge granted a temporary restraining order, which means the women and children in this lawsuit cannot be deported while they wait for a hearing that has been scheduled for May 19. With options dwindling and deportation considered "imminent," four families being held for nearly two years at the infamous Berks Family Residential Center have filed a class action lawsuit against U.S. Attorney Jeff Sessions, seeking release based on a special immigration status granted to their children. The lawsuit, filed on April 17 in the Eastern District Court of Pennsylvania by Philly lawyer Michael Edelman and Berks County lawyers Bridget Cambria and Carol Anne Donohoe, is to some extent a last-ditch option in a saga dating back 20 months -- with at least one child who's learned to walk and talk while in custody there. It comes immediately after legal action concerning the families' asylum requests was denied US Supreme Court review, potentially opening them up for the completion of deportation hearings. The women and children in the lawsuit, as well as dozens of others held at the Berks County detention center, came to America in fall 2015 from Central American countries like El Salvador and Honduras, seeking asylum. They were originally held in Texas and then transported to Berks County, which has one of just three federal detention centers in the nation for undocumented women and children. The four mothers and their children in the lawsuit have asked for and been denied new asylum hearings, with a court ruling last year they didn't even have the right to sue. As they've waited for the court process -- and had their deportation proceedings stayed -- the children have been able to apply for Special Immigrant Juvenile (SIJ) status. Four children, unnamed in the lawsuit, have been granted the status, which aids in the process of getting a green card. Ms. Cambria said it's unheard of for children with SIJ status to be deported. But a petition for Immigrations and Customs Enforcement (ICE) to rescind the deportation hearing against the children was denied in February. ICE, according to the lawsuit, claimed the children had been subject to "expedited removal" when they entered the country, and the application to rescind doesn't hold up. "We've hit a point where removal is imminent," Ms. Cambria said. In addition to granting release of the children, the lawsuit also seeks to release the mothers, who would then be allowed to stay in the country as their children continue to go through the legal process. Meanwhile, the detention center remains controversial. A federal judge in 2015 in California ruled children couldn't be held in detention centers for more than 20 days. Governor Tom Wolf has said he wants it to be closed, and the center has had licensing issues. The New York Times did a story on the center when several women being held underwent a hunger strike last fall. According to the lawsuit, one of the children, who is 3 years old, came to America from Honduras with his mother, Wendy Amparo Osorio-Martinez, fleeing gang violence and sexual violence. Ms. Osorio-Martinez's son has spent half his life in the detention center and learned to walk and talk there. The other children and mothers in the lawsuit have similar stories. "You wouldn't send them back to a country where they've dealt with this harm," Ms. Cambria said. "In these cases, these four children all have approved status. They're just simply waiting for their green cards. And Immigration has said they want to deport them." BERKSHIRE HILLS: Settlement in Hampden Investor Suit Has Final OK ----------------------------------------------------------------- Berkshire Hills Bancorp, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on March 1, 2017, for the fiscal year ended December 31, 2016, that the trial court has entered an Order and Final Judgment in the Hampden Bancorp, Inc shareholder litigation giving final approval to a settlement agreed to among all parties. On February 12, 2015, Berkshire Hills was served with a complaint in a putative class action lawsuit filed in the Superior Court of the Commonwealth of Massachusetts for Hampden County against Hampden Bancorp, Inc. ("Hampden"), the Directors of Hampden and the Company, in connection with a pending transaction through which Hampden was acquired by Berkshire Hills on April 17, 2015 (the "Hampden shareholder litigation"). The complaint was filed by an individual Hampden shareholder and alleged that (i) the directors of Hampden breached their fiduciary duties to its stockholders by, among other things, failing to take steps necessary to obtain a fair and adequate price for Hampden's common stock, (ii) Hampden and its directors failed to disclose material facts in its proxy solicitation materials for its shareholder vote to approve the transaction set forth in the Merger Agreement, and (iii) the Company knowingly aided and abetted Hampden's directors' breach of fiduciary duty. On December 14, 2016, the trial court entered an Order and Final Judgment in the Hampden shareholder litigation giving final approval to a settlement agreed to among all parties. Pursuant to this settlement, all claims on behalf of all possible class action claimants against all defendants have been dismissed with prejudice and the Hampden shareholder litigation has been fully resolved. No portion of any settlement consideration to be distributed to class action claimants in the Hampden shareholder litigation has been contributed by Berkshire Hills or any insurer on its behalf. BERKSHIRE HILLS: Depositor's Class Action Underway -------------------------------------------------- Berkshire Hills Bancorp, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on March 1, 2017, for the fiscal year ended December 31, 2016, that the Company continues to defend a class action lawsuit by a depositor in the District of Massachusetts. On April 28, 2016, Berkshire Hills and Berkshire Bank were served with a complaint filed in the United States District Court, District of Massachusetts, Springfield Division. The complaint was filed by an individual Berkshire Bank depositor, who claims to have filed the complaint on behalf of a purported class of Berkshire Bank depositors, and alleges violations of the Electronic Funds Transfer Act and certain regulations thereunder, among other matters. On July 15, 2016, the complaint was amended to add purported claims under the Massachusetts Consumer Protection Act. The complaint seeks, in part, compensatory, consequential, statutory, and punitive damages. Berkshire Hills and Berkshire Bank deny the allegations contained in the complaint and are vigorously defending this lawsuit. Berkshire Hills Bancorp, Inc. is headquartered in Pittsfield, Massachusetts. Berkshire is a Delaware corporation and the holding company for Berkshire Bank and Berkshire Insurance Group, Inc. BIG LOTS: Court Certifies Class of Stockholders in "Willis" Suit ---------------------------------------------------------------- The Hon. Michael H. Watson entered an opinion and order in the lawsuit titled Alan Willis v. Big Lots, Inc., et al., Case No. 2:12-cv-00604-MHW-KAJ (S.D. Ohio), granting the Plaintiffs' motion for class certification and certifying this class: All persons who purchased the common stock of Big Lots, Inc. between March 2, 2012 and August 23, 2012, and who were damaged thereby. Excluded from the Class are defendants, the officers and directors of the Company, members of their immediate families and their legal representatives, heirs, successors or assigns and any entity in which defendants have or had a controlling interest. City of Pontiac General Employees' Retirement System and Teamsters Local 237 Additional Security Benefit Fund are appointed as class representatives and Robbins Geller Rudman & Dowd LLP is appointed as class counsel. The Defendants' motion for leave to file a sur-reply is denied. The Court directs the parties to submit an agreed-upon form of notice, a joint proposal for dissemination of the notice and the timeline for opting out of the action within 21 days of the date of entry of the Opinion and Order. The Plaintiffs must bear the costs of the notice. Judge Watson also advised the counsel for both parties that citations in all further briefing must include a reference to the ECF entry where the exhibit can be found. A copy of the Opinion and Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=Nu7ruDAv BIJOU-CENTURY: Faces "Carouba" Class Suit in California ------------------------------------------------------- A class action lawsuit has been commenced against Bijou-Century, LLC. The case is captioned Joseph Carouba, Olivia Doe, and Does 1 - 100, on behalf of herself and all those similarly situated v. Bijou-Century, LLC, Case No. CGC 17 558142 (Cal. Super. Ct., April 12, 2017). Bijou-Century, LLC operates an adult entertainment club located at 816 Larkin St, San Francisco, California, 94109. [BN] BIOLASE INC: "Shulruff" Class Suit Dismissed With Prejudice ----------------------------------------------------------- Dr. Charles Shulruff has dismissed with prejudice his claims against BIOLASE, Inc., according to the Company's March 10, 2017, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2016. On February 24, 2016, a purported class action lawsuit entitled Dr. Charles Shulruff v. Biolase, Inc., Case No. 1:16-cv-02533, was filed in the United States District Court for the Northern District of Illinois. The case alleged that the Company violated the federal Telephone Consumer Protection Act (TCPA) and other related Illinois state statutes, by sending unsolicited marketing communications via fax machine to a Chicago dentist, Dr. Shulruff. The plaintiff and his counsel sought to certify a nation-wide class of comprised of other dentists who received the same or similar faxes from BIOLASE. BIOLASE responded to the case on April 14, 2016 and denied liability on all claims. BIOLASE also denied that class certification was appropriate. After initial document discovery and fact gathering, BIOLASE filed a petition with the Federal Communications Commission ("FCC") for "retroactive waiver" of some of the TCPA violations alleged by Shulruff. The FCC granted the petition, which significantly weakened plaintiff's case. BIOLASE then demonstrated to plaintiff's counsel the individualized nature of the fax messages at issue, arguing that class certification was highly unlikely from the data. Based on these events, BIOLASE and Dr. Shulruff entered into a nominal settlement agreement, and in December 2016 Dr. Shulruff dismissed his claims with prejudice. The potential class action claims were dismissed without prejudice, and BIOLASE is unaware of any remaining viable class allegations on these facts. BIOLASE, Inc., is a medical device company that develops, manufactures, markets and sells laser systems in dentistry and medicine and also markets, sells, and distributes dental imaging equipment, including cone beam digital x-rays and CAD/CAM intra- oral scanners. BLACKROCK INC: Faces "Baird" Suit over Retirement Plans ------------------------------------------------------- Matthew Renda, writing for Courthouse News Service, reported that a former employee of the largest private money manager in the world says in a federal class action in San Francisco, that the company violated ethics rules by putting employees' investments into company-run funds to rack up fees and boost profits. In a class action filed in the Northern District of California on April 5, Charles Baird says BlackRock placed its employees' retirement money into layers of funds managed by BlackRock, racking up fees and costing retirees an estimated $60 million. "Plan participants were subjected to higher hidden fees through excessive fund layering, where one BlackRock fund invests in a rabbit hole of other BlackRock funds," Baird says in the complaint. "In this layering scheme, each BlackRock fund charges additional fees to employee investors and those unnecessary layers of fees cannibalize the returns of the employee." Blackrock is relatively new to the asset-management sector, but it has quickly ascended to a prominent position in the industry with about $5.1 trillion in assets under its purview -- making it the world's largest asset manager. Guided by its CEO and founder Larry Fink, BlackRock began organically and through acquisitions and savvy investing grew quickly over 25 years into one of the more formidable Wall Street firms. Baird worked at Barclays, a major multinational bank headquartered in London, from 2000 until 2009. In 2009, BlackRock acquired Barclays Global Investors unit for about $13.5 billion. The unit included the exchange trade fund unit, I Shares, which has become increasingly popular as an investment tool. Baird continued working for BlackRock through 2016, according to the complaint. Shortly before filing the class action, Baird says he investigated the BlackRock Retirement Savings Plan and discovered that it was underperforming funds of a similar caliber offered by Vanguard and other similar financial institutions. "For example, despite charging a 500 to 871 percent premium, BlackRock's Low Duration Bond Fund has underperformed Vanguard's alternative over ten, five, three, and one year horizons," Baird says in the complaint. The reason for this is not poor money management, according to Baird, but because BlackRock wants to funnel their own employees' investments through a series of their funds so it can charge fees that drive company revenues. This practice amounts to corporate self-dealing and is a violation of the Employee Retirement Income Security Act of 1974, Baird says in the 43-page complaint. Baird seeks orders to require BlackRock to set up a trust where the ill-gotten gains are placed to the benefit of retirees; an end to BlackRock using its funds as part of its retirement savings package; and the removal of those responsible for implementing the program. BlackRock did not return an email seeking comment by press time. Baird is represented by Nina Wasow of Feinberg, Jackson, Worthman and Wasow based in Oakland, California. Charles Baird, individually, and on behalf of all others similarly situated, and on behalf of the BlackRock Retirement Savings Plan, Plaintiffs, vs. BlackRock Institutional Trust Company, N.A.; BlackRock, Inc.; The BlackRock, Inc. Retirement Committee; Jason Herman, named Plan Sponsor; John and Jane Does 1-40, Members of the BlackRock Retirement Committee; The Administrative Committee of the Retirement Committee; John and Jane Does 1-20, Members of the Administrative Committee of the Retirement Committee; The Investment Committee of the Retirement Committee; John and Jane Does 21-40, Members of the Investment Committee of the Retirement Committee; each an individual, and John and Jane Does 41-60, each an individual, Defendants, Case No. 3:17-cv-01892-SK (N.D. Cal., April 5, 2017). Counsel for Plaintiff: Nina Wasow, Esq. Todd Jackson, Esq. FEINBERG, JACKSON, WORTHMAN & WASOW, LLP 383 4th Street, Suite 201 Oakland, CA 94607 Tel: (510) 269-7998 Fax: (510) 269-7994 E-mail: nina@feinbergjackson.com todd@feinbergjackson.com - and - Karen L. Handorf, Esq. Michelle C. Yau, Esq. COHEN MILSTEIN SELLERS & TOLL, PLLC 1100 New York Avenue, N.W. Suite 500, West Tower Washington, D.C. 20005 Tel: (202) 408-4600 Fax: (202) 408-4699 E-mail: khandorf@cohenmilstein.com myau@cohenmilstein.com CAESARSTONE LTD: Defends 85 Injury Suits in Israel as of March 1 ---------------------------------------------------------------- As of March 1, 2017, Caesarstone Ltd. was a party to 85 pending bodily injury lawsuits in Israel alleging exposure to silica dust, according to the Company's March 13, 2017, Form 20-F filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2016. The Company said: "Since 2008 and through March 1, 2017, 110 claims were filed against us in Israel with respect to alleged bodily injuries caused to 107 fabricators as a result of their exposure to silica dust during the fabrication of our products: one claim was filed in 2008, two in 2009, four in 2010, seven in 2011, seven in 2012, eight in 2013, 28 in 2014 (representing 29 injured persons), 19 in 2015 (representing 16 injured persons), 31 in 2016 (representing 30 injured persons and include one lawsuit filed by NII [Israeli National Insurance Institute] with respect to a settled lawsuit) and 3 in 2017 through March 1, 2017. We were named by these lawsuits directly or as third-party defendants by fabricators or their employees in Israel, by the injured successors, by the State of Israel, by the NII or by others." "As of March 1, 2017, we were party to 85 pending bodily injury lawsuits in Israel out of these claims. Such pending lawsuits were filed with respect to 85 persons alleged to be injured and include lawsuits filed by the NII for subrogation of compensation paid or to be paid by the NII to certain injured persons, one lawsuit where the claimant applied for class certification, and one appeal that was filed in connection with a judgment granted in one of the lawsuits, as further detailed below." "As of March 1, 2017, three lawsuits that were filed against us in Israel since 2008 have been dismissed, five lawsuits have been settled between us, the claimants, their employer, if any, and the State of Israel, and 16 lawsuits were settled between us and other defendants and the claimants but are still pending between us and the distributors." "We have received one pre litigation notice in Australia, as further detailed below. We have also received six demand letters on behalf of certain other fabricators in Israel or their employees alleging that they contracted illnesses as a result of fabricating our products. Each of the claims in Israel named other defendants, such as fabricators that employed the plaintiffs, the State of Israel -- the Labor Supervision Department, distributors of our products and insurance companies and insurance brokers. Various arguments are raised in the claims, including, among others, product liability arguments and failure to provide warnings regarding the risks associated with silica dust generated by the fabrication of our products." "Most of the claims in Israel do not specify a total amount of damages sought, as the plaintiff's future damages are intended to be determined at trial. A claim filed with the Magistrate's Court in Israel is limited to a maximum of NIS 2.5 million (approximately $650,000) plus any fees, and among the 85 pending claims filed against us as of March 1, 2017 in Israel, 60 claims were filed in the Magistrate's Court. A claim filed in the District Court in Israel is not subject to such limitation. As a result, there is uncertainty regarding the total amount of damages that may ultimately be claimed." "In November 2015 we entered into an agreement with the State of Israel, with the consent of our insurance carriers, under which we agreed with the State to cooperate, subject to certain terms, with respect to the management of the individual claims that have been filed and claims that may be submitted during a certain time period (other than NII claims) and on the apportionment between us of the total liability of us and the State, if found, in such claims. The initial term of this agreement expired and we expect it to be renewed. We are also seeking to enter into agreements with most of our distributors in Israel with respect to their participation in compensation to claimants." "Israeli law, as well as the law of other jurisdictions, recognizes joint and several liability among co-defendants in civil suits. In cases where co-defendants are found liable the plaintiff is entitled to collect all damages from only one of the liable defendants. Thus, even if we are found only partially liable for a plaintiff's damages, the plaintiff may seek to collect all their damages from us, requiring us to collect separately from our co-defendants their allocated portion of the damages. If defendants are insolvent or we are unsuccessful in collecting their portion of the damages for any other reason (for instance, if they are not insured), we may incur damages beyond the damages for which we are liable." Caesarstone Ltd. is a manufacturer of high-quality engineered quartz surfaces sold under its premium Caesarstone brand. Although the use of quartz is relatively new, it is the fastest growing material in the countertop industry and continues to take market share from other materials, such as granite, manufactured solid surfaces and laminate. CAESARSTONE LTD: Defends Suit in Israel Central District Court -------------------------------------------------------------- Caesarstone Ltd. continues to defend itself against a class action lawsuit pending in the Central District Court in Israel, the Company said in its Form 20-F filed with the Securities and Exchange Commission on March 13, 2017, for the fiscal year ended December 31, 2016. The Company said: "A lawsuit by a single plaintiff and a motion for its class certification were filed against us in April 2014 in the Central District Court in Israel. The plaintiff claims to be the owner of a fabrication plant and to have contracted silicosis as a result of fabricating our products. In connection therewith, the plaintiff claims that we did not provide adequate warnings regarding the risks and protection measures required with respect to fabrication of our products, which he claims to be greater than the risk associated with the fabrication of natural stones, and that we intentionally or negligently hid and did not warn about the high risk and irreversible damages that may occur to the persons processing our products and misled the fabricators in Israel by comparing the hazards related to the fabrication of our products to those associated with the fabrication of natural stones. The plaintiff claims that we did not act as a reasonable manufacturer, violated applicable laws and Israeli standards, committed an assault, acted negligently and are liable under the Israeli Law for Liability for Defective Products, 1980. The plaintiff also claims that our products are a 'dangerous item' under the Israeli Tort Ordinance, 5728-1968 and, therefore, the plaintiff claims that the burden of proof falls on us to prove that there was no carelessness for which we are liable in connection with our products. The plaintiff claims that by our wrongful conduct we violated the plaintiff's freedom to choose whether to be exposed to the risks associated with the fabrication of our products." "The plaintiff alleges that, if the lawsuit is recognized as a class action, the claim against us is estimated to be NIS 216 million (approximately $56 million), calculated by claiming damages of NIS 18,000 ($4,668) for each individual who worked in fabrication workshops in Israel in fabrication or administrative roles and who have been exposed to dust generated by the fabrication of our products. The plaintiff claims that there are 12,000 such individuals who worked at 400 fabrication workshops in Israel, each of which employed 10 fabricators and five administrative persons, with one rotation during the relevant period. In addition, such claim includes an unstated sum in compensation for special and general damages, such as medical disability, functional disability, pain and suffering, medical expenses, medical and nursing assistance, which will require proof and quantification for each injured person in the purported class action. The plaintiff seeks, among other things, to compel us to notify the alleged group (and potential members of the group) and each individual about the risks, recommending that they undertake a medical examination and assert their rights." No further updates were provided in the Company's SEC report. Caesarstone Ltd. is a manufacturer of high-quality engineered quartz surfaces sold under its premium Caesarstone brand. Although the use of quartz is relatively new, it is the fastest growing material in the countertop industry and continues to take market share from other materials, such as granite, manufactured solid surfaces and laminate. CAESARSTONE LTD: Settles Securities Class Suit in New York ---------------------------------------------------------- Caesarstone Ltd. enters into an agreement to settle a putative class action lawsuit brought in New York on behalf of purchasers of its securities, according to the Company's March 13, 2017, Form 20-F filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2016. The Company said: "On August 25, 2015, a purported purchaser of our ordinary shares filed a proposed class action in the United States District Court for the Southern District of New York asserting, among other things, that we and two of our officers violated Sections 10(b) and 20(a) of the Exchange Act, and Rule 10b-5 promulgated under the Exchange Act, by allegedly making false and misleading statements about our business. The complaint seeks an unspecified amount of damages on behalf of purchasers of our securities between March 25, 2013 and August 18, 2015. On January 15, 2016, the court-appointed lead plaintiffs filed an amended complaint that asserted similar claims, but that seeks damages on behalf of purchasers of our securities between February 12, 2014 and August 18, 2015. On February 26, 2016, we filed a motion to dismiss the amended complaint. On July 20, 2016, the court issued an opinion granting in part our motion to dismiss." On January 30, 2017, the company entered into an agreement in principle with the lead plaintiffs to settle the case. The settlement is subject to the completion of definitive documentation and approval of the court. The Company's insurance carriers have agreed to pay the settlement amount and the related expenses. Caesarstone Ltd. is a manufacturer of high-quality engineered quartz surfaces sold under its premium Caesarstone brand. Although the use of quartz is relatively new, it is the fastest growing material in the countertop industry and continues to take market share from other materials, such as granite, manufactured solid surfaces and laminate. CANADA: Suit Filed on Behalf of Developmentally Disabled Adults --------------------------------------------------------------- Randy Richmond, writing for The London Free Press, reports that a class-action suit launched on behalf of developmentally disabled Ontario residents is targeting a social service system that's run like a game of chance, the lead lawyer says. "Sometimes it is like a lottery. It is no way to run a system of care," Jody Brown -- jbrown@kmlaw.ca -- of Koskie Minsky in Toronto said on April 18. "Families' lives are on hold." The law firm has launched a class action suit on behalf of developmentally disabled adults in Ontario awaiting services funded by the province, an issue that has suddenly come under the spotlight in Southwestern Ontario. The lawsuit is another sign the Liberal government isn't listening, London West New Democrat MPP Peggy Sattler said. "It seems that the only way the citizens of Ontario can get action is to basically shame them," Ms. Sattler said. The suit seeks $100 million from the province in damages for negligence and another $10 million in punitive damages for the lack of services. Wait lists for services are "indeterminate and administered in an ad-hoc, inconsistent and unreasonable manner, denying eligible recipients statutory benefits which are necessary for their basic daily human needs and safety," says the statement of claim that contains allegations not yet debated in court. "Adults may spend years on the . . . wait lists, requiring family members or other caregivers to provide the necessary services or supports, or going without such services," the statement of claim says. The delays and denial of service can cause developmentally disabled adults pain, suffering, loss of enjoyment of life, loss of the basic necessities of life, damage to their dignity and physical health, depression and new disorders, the statement of claim says. The legal pressure for action comes on the heels of recent political and public pressure on the province. In late March, Ms. Sattler raised similar issues in the legislature about Ontario adults with complex medical needs and held a news conference in London highlighting four cases. One of those cases involved Alex Cha, a London man with cerebral palsy, on the wait list at Participation House for more than 10 years and reliant on his aging mother for most of his care. A story in The London Free Press on April 18 detailed the family's struggles and worries. "I'm open to anything that gets more attention from the government. If it helps people, I'm all for it," Jin Cha, Alex's sister, said about the lawsuit for developmentally disabled adults on April 18. It's unknown how many adults in Ontario would be represented by the lawsuit, Brown said. The representative plaintiff in the claim is Briana Leroux, a 19- year-old Timmins resident who needs help 24 hours a day, seven days a week. Until she turned 18, the province provided services through the Ministry of Children and Youth Services, the statement of claim says. On her 18th birthday, "all services . . . were arbitrarily and unreasonably discontinued." She was approved for developmental services by a regional office and put on a wait list without any estimate of how long she would wait. CELESTICA INC: Consolidated Securities Class Suit Tossed -------------------------------------------------------- The consolidated securities class action lawsuits were dismissed in January 2017, according to Celestica Inc.'s March 13, 2017, Form 20-F filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2016. The Company said: "Commencing in 2007, securities class action lawsuits were brought against us and certain of our officers, a director and Onex in the United States District Court for the Southern District of New York (the "District Court"), alleging violations of United States federal securities laws. In 2015, a settlement of the consolidated class action lawsuits was reached and the District Court granted final approval of the settlement in July 2015. The settlement payment to the plaintiffs was paid by our liability insurance carriers in 2015. In 2007, parallel class proceedings were initiated against us and our former Chief Executive and Chief Financial Officers in the Ontario Superior Court of Justice." These proceedings were finally dismissed on January 16, 2017, with no payments by the defendants. Celestica Inc. was incorporated in Ontario, Canada. Prior to its incorporation, the Company is an IBM manufacturing unit that provided manufacturing services to IBM for more than 75 years. In 1993, the Company began providing electronics manufacturing services to non-IBM customers. In October 1996, the Company was purchased from IBM by an investor group led by Onex Corporation. The Company delivers innovative supply chain solutions globally to customers in the Communications (comprised of enterprise communications and telecommunications), Consumer, Diversified (comprised of aerospace and defense, industrial, healthcare, smart energy and semiconductor equipment), Servers and Storage end markets. CENTER FOR EXCELLENCE: Removed "Espinosa" Suit to S.D. California ----------------------------------------------------------------- The class action lawsuit captioned Charish Espinosa, individually and on behalf of others similarly situated v. Does 1 through 100 inclusive and Center for Excellence in Higher Education Inc. d/b/a California College of San Diego, Inc., Case No. 37-02017-00006352- CU-OE-CTL, filed on April 12, 2017, was removed on April 13, 2017, from the Superior Court of California County of San Diego to the U.S. District Court for the Southern District of California (San Diego). The District Court Clerk assigned Case No. 3:17-cv-00744- MMA-KSC to the proceeding. The Plaintiff asserts labor-related claims. Center for Excellence in Higher Education Inc. is an Indiana-based nonprofit organization that supports free-market ideas in higher education. [BN] The Plaintiff is represented by: Matthew R. Bainer, Esq. CAPSTONE LAW APC 1875 Century Park East, Suite 1000 Los Angeles, CA 90067 Telephone: (310) 556-4811 Facsimile: (310) 943-0396 E-mail matthew.bainer@capstonelawyers.com The Defendant is represented by: Aaron T. Winn, Esq. DUANE MORRIS LLP 750 B Street, Suite 2900 San Diego, CA 92101 Telephone: (619) 744-2200 Facsimile: (619) 744-2201 E-mail atwinn@duanemorris.com CENTRAL CREDIT: Class Certification Sought in "Czarnecki" Suit -------------------------------------------------------------- Sally Czarnecki moves the Court to certify the class described in the lawsuit entitled SALLY CZARNECKI, Individually and on Behalf of All Others Similarly Situated v. CENTRAL CREDIT SERVICES, LLC, and SYNCHRONY BANK, Case No. 2:17-cv-00400 (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, 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 asks to be appointed as class representative and further asks the Court to 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=N4KjeSIE 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 CITIBANK: Reed Smith Attorney Discusses Arbitration Issue Ruling ---------------------------------------------------------------- Ashley L. Shively, Esq., of Reed Smith, in an article for Mondaq, wrote that in a unanimous decision released April 6, 2017, the California Supreme Court held an arbitration agreement that waives the right to public injunctive relief in any forum is contrary to state public policy and therefore unenforceable. McGill v. Citibank, No. S224086 (April 7, 2017). The Court also held that public injunctive relief remains a remedy available to a private plaintiff under the state's consumer protection statutes. CASE BACKGROUND In 2011, Plaintiff Sharon McGill filed a putative class action against her credit card company alleging causes of action for violations of California's Consumer Legal Remedies Act, Civil Code Sec. 1750 et seq. ("CLRA"), Unfair Competition Law, Business and Professions Code Sec. 17200 et seq. ("UCL"), and the False Advertising law, Business and Professions Code Sec. 17500 et seq. ("FAL"). She sought money damages, restitution, and injunctive relief. Applying an arbitration provision in her Citibank account agreement, the California Court of Appeal had held that the lender was entitled compel the plaintiff to arbitrate all claims -- including claims for injunctive relief under the CLRA and UCL. The California Supreme Court reversed on April 13, and remanded to the Court of Appeal the question of whether the remainder of the arbitration provision was enforceable. THE CALIFORNIA SUPREME COURT'S HOLDINGS AND RATIONAL Arbitration Agreements That Waive Right To Pursue Public Injunctive Relief In Any Forum Are Unenforceable In oral argument, the parties agreed that McGill's arbitration provision "purports to preclude [her] from seeking public injunctive relief in arbitration, in court, or in any forum." McGill, No. S224086, slip op at 8 (Cal. April 6, 2017). The question before the California Supreme Court was thus "whether the arbitration provision is valid and enforceable insofar as it purports to waive McGill's right to seek public injunctive relief in any forum." Id. (emph. orig.). The Supreme Court rejected Citibank's argument that a California rule precluding enforcement of McGill's right to request public injunctive relief in any forum would be preempted by the FAA. The FAA requires courts to place arbitrations agreements on "equal footing with other contracts." Id. at 15 (quoting Concepcion, 563 U.S. at 339)). The U.S. Supreme Court qualified that statement, however, with a "savings clause," which "permits arbitration agreements to be declared unenforceable 'upon such grounds as exist in law or in equity for the revocation of any contract.'" Id. Under the savings clause, the California Supreme Court found, a law established for a public reason cannot be contravened by a private agreement and arbitration agreements which purport to do so may be invalidated. Id. (citing Civ. Code Sec. 3513). "A provision in any contract . . . that purports to waive, in all fora, the statutory right to seek public injunctive relief under the UCL, the CLRA, or the [FAL] is invalid and unenforceable under California law. The FAA does not require enforcement of such a provision, in derogation of this generally applicable contract defense, merely because the provision had been inserted into an arbitration agreement. To conclude otherwise would, contrary to Congress's intent, make arbitration agreements not merely 'as enforceable as other contracts, but . . . more so." Id. at 16 (citing Prima Paint, 338 U.S. at 404 n.12). Proposition 64 Does Not Apply To Claims For Public Injunctive Relief The Court also appears to have found that a plaintiff who otherwise meets the standing requirements of California's Proposition 64 -- a private individual who as "suffered injury in fact and has lost money or property as a result of" a violation of the CLRA, UCL, or FAL -- may seek public injunctive relief without satisfying the statutory requirements for class certification. Voters passed Proposition 64 in 2004 to amend California's Business and Professions Code and limit lawsuits under the statute to members of the public who have suffered injury and lost money or property due to the alleged statutory violation. See, e.g., Bus. & Prof. Code Sec. 17204. Proposition 64 additionally authorized injured individuals to "pursue representative claims or relief on behalf of others only if [he or she] meets the standing requirements . . . and complies with" California's class action requirements found in Section 382 of the Code of Civil Procedure. See, e.g., id. Sec. 17203. In McGill, the Court found that "requests to enjoin future wrongful business practices that will injure the public" need not satisfy the requirements for class certification. McGill, slip op at 13. The Court reasoned that "representative claims" do not include claims that seek public injunctive relief, but rather include only claims that seek monetary remedies, such as disgorgement or restitution, on behalf of others. Id. The Court relied on its 2000 opinion in Kraus v. Trinity Management Services, which defined a "representative action" to mean a "UCL action that is not certified as a class action in which a private person is the plaintiff and seeks disgorgement and/or restitution." Id. (citing 23 Cal.4th 116, 121 (2000)). In light of that definition, the Court reasoned voters who passed Proposition 64 just a few years later likely interpreted "representative claims" to mean those claims seeking monetary relief on behalf of others. Voters were not attempting to limit claims like McGill's that seek public injunctive relief. Id. WHAT'S NEXT The ramifications of the decision will play out over the next several years as we wait to see whether federal courts in California will fall in line with the state Supreme Court or separately find that the FAA preempts claims for public injunctive relief. Regardless, the Court's decision in McGill raises immediate questions as to the validity and enforceability of arbitrations provisions contained in consumer contracts and will almost certainly result in an expansion of consumer litigation. Businesses will need to review the language of consumer contracts to determine whether arbitration provisions waive the right to pursue public injunctive relief altogether. COGNIZANT TECHNOLOGY: Court Consolidated 3 Class Suits ------------------------------------------------------ Cognizant Technology Solutions Corporation said in its Form 10-K Report filed with the Securities and Exchange Commission on March 1, 2017, for the fiscal year ended December 31, 2016, that the United States District Court for the District of New Jersey issued an order, dated February 3, 2017, consolidating three putative securities class actions. The Company said, "On October 5, 2016 and October 27, 2016, two putative securities class action complaints were filed in the United States District Court for the District of New Jersey on behalf of a putative class of stockholders who purchased our common stock during the period between February 25, 2016 and September 30, 2016. On November 18, 2016, a different plaintiff filed a third putative securities class action complaint in the United States District Court for the District of New Jersey on behalf of a putative class of stockholders who purchased our common stock during the period between February 27, 2015 and September 30, 2016. The complaints collectively name us and certain of our current and former officers as defendants and allege violations of the Securities Exchange Act of 1934, as amended, based on allegedly false or misleading statements related to potential violations of the FCPA, our business, prospects and operations, and the effectiveness of our internal control over financial reporting and our disclosure controls and procedures. The plaintiffs collectively seek awards of compensatory damages, among other relief, and their costs and attorneys' and experts' fees." Cognizant is one of the world's leading professional services companies, transforming customers' business, operating and technology models for the digital era. COLLIER COUNTY, FL: Immigrant Students to Join Class Action ----------------------------------------------------------- Brett Murphy, writing for Naples News, reports that two students will join six other immigrant children whose federal lawsuit claims that Collier County schools illegally kept them and hundreds of others from enrolling in high schools. In a federal court hearing on April 18, senior staff lawyer for the Southern Poverty Law Center Michelle Lapointe told a judge she plans to add the two to the complaint as soon as possible. Both sides met in the Fort Myers courthouse to set deadlines for evidence sharing. The lawsuit accuses the Collier County school system of preventing immigrant children from enrolling in high schools because of their place of birth. The suit claims the students were directed to an English language program that costs money and offers no credits toward a diploma. The school system violated federal and state laws by denying access to public education to recently arrived immigrant teenagers with limited English skills, according to the complaint filed on behalf of the six immigrant children who said they were not allowed to enroll last year. Federal and state law mandate that schools offer children in their jurisdiction, regardless of immigration status, access to free public education. Neither side has specified whether the students in this case are undocumented, nor does that have any bearing on the case. The school district has argued in past filings that students were not blocked but were redirected to comparable programs in the school system that would provide better educational opportunities than regular high school. The SPLC, an Alabama-based national civil rights advocacy group, filed the lawsuit a year ago. Ms. Lapointe is seeking class- action status for the case. She has said in past court filings that at least 300 students have been negatively affected by the school board's policy. These latest two additions, who as of now, like the other plaintiffs, are anonymous, give credence to the class certification, she said after the April 18 hearing. "It shows the district has an ongoing policy of denying (English language learners) enrollment in high school," Ms. Lapointe said. "That's significant and troubling." But attorneys for the school district say there's little to suggest these two additional students will have any bearing on whether a class action will be approved. "We don't know if they're 5 (years old) or 25," said Jim Fox, a lawyer for the schools, after the hearing on April 18. "It's so abstract at this point." CONAGRA: Judge Tosses Crunch 'N Munch Trans Fat Class Action ------------------------------------------------------------ Suevon Lee and Steven Trader, writing for Law360, report that a California federal judge on March 31 tossed a putative class action against ConAgra alleging its Crunch 'n Munch popcorn violates California's unfair competition law by containing artificial trans fat, ruling the claims are preempted by federal law. As the U.S. Food and Drug Administration and Congress have determined partially hydrogenated oil -- a food additive with artificial trans fat content -- can be used and marketed in food products, Troy Walker's putative class claims under California law are preempted by federal statute, U.S. District Judge Jeffrey S. White said. The judge dismissed the case with prejudice and denied leave to amend, saying Mr. Walker already received the opportunity to file a first amended complaint and that further amendment would be futile. "Here, ConAgra has carried that burden" of showing how the state laws are preempted, Judge White said, citing two recent decisions from his district involving ConAgra and Nestle USA Inc. that held similar trans fat "use" claims were barred by conflict preemption. Mr. Walker in his April 2016 first amended complaint alleged that the use of partially hydrogenated oil in Crunch 'n Munch was unfair within the meaning of California's unfair competition law because it allows ConAgra to reap more profits than if it used safer natural fats, and also unlawful since PHO is generally considered unsafe. Mr. Walker, a frequent consumer of the caramel popcorn, alleged that partially hydrogenated oil is an extremely harmful food additive that causes heart disease and cancer, among other illnesses. He sought to represent a class of people who bought Crunch 'n Munch on or after Jan. 1, 2008. The California resident first brought suit in June 2015, alleging ConAgra falsely markets Crunch 'n Munch as free of trans fat by using the phrase "0g trans fat per serving" on its label, deceiving consumers into buying a product that harms their health. He said that although there are safe, low-cost alternatives to partially hydrogenated oil, ConAgra chose not to use safe alternatives in Crunch 'n Munch in order to drive up profits at the expense of consumers' health. In March 2016, the court had dismissed with prejudice Mr. Walker's mislabeling claims as preempted by the Food, Drug and Cosmetic Act and also said he failed to state a claim for his use claims but allowed him to amend those. In its motion to dismiss the amended suit, ConAgra argued that the amended claims can't hold under controlling federal law. The FDA has said partially hydrogenated oil can be used and marketed in food products until June 18, 2018, while the Consolidated Appropriations Act precludes claims based on PHO use, it argued. Judge White was convinced by the preemption argument, noting the recent Northern District decisions in Backus v. ConAgra Foods and Backus v. Nestle USA Inc. "In particular, despite the guidance provided by those prior cases, plaintiffs still have provided no basis for this court to conclude that 'the FDA meant to reference general, broadly applicable state laws, such as those on which [plaintiff's] use claims are predicated, as opposed to statutory provisions specifically applicable to PHOs,'" he wrote. Representatives for Mr. Walker and ConAgra didn't immediately return requests for comment on April 17. Mr. Walker is represented by Gregory Weston -- greg@westonfirm.com -- and David Elliott of The Weston Firm. ConAgra is represented by Allen Brooks Gresham II -- bgresham@mcguirewoods.com -- Angela M. Spivey -- aspivey@mcguirewoods.com -- Laura E. Coombe and Richard Trent Taylor of McGuireWoods LLP. The case is Troy Walker v. ConAgra Foods Inc., case number 4:15- cv-02424 in the U.S. District Court for the Northern District of California. CREATIVE AIR: Faces Class Action in Calif. Over TCPA Violation -------------------------------------------------------------- Noddy A. Fernandez, writing for Northern California Record, reports that a Huntington Beach consumer claims an air solution company unlawfully contacted her for marketing purposes. Denise Menichiello, individually and on behalf of all others similarly situated, filed a complaint on April 5 in the U.S. District Court for the Central District of California against Creative Air Solutions Inc. and Does 1 through 10 alleging that they violated the Telephone Consumer Protection Act. According to the complaint, the plaintiffs allege that she received numerous calls from the defendant within a 12-month period soliciting its services beginning in October 2016. She claims she did not have an established business relationship nor gave prior written consent to defendants to administer such calls. She alleges her privacy was invaded. The plaintiffs hold Creative Air Solutions Inc. and Does 1 through 10 responsible because the defendants allegedly failed to establish and implement reasonable practices and procedures to advertise its products to effectively prevent telephone solicitation. The plaintiff requests a trial by jury and seeks up to $1,500 in damages for each call and any other relief that the court deems just and proper. S he is represented by Todd M. Friedman and Adrian R. Bacon of Law Offices of Todd M. Friedman PC in Woodland Hills. U.S. District Court for the Central District of California Case number 8:17-cv-00613 CURADEN AG: Faces "Lyngaas" Suit Over TCPA Violation ---------------------------------------------------- Brian Lyngaas, D.D.S., individually and as the representative of a class of similarly situated persons, Plaintiff v. Curaden AG, Curaden USA Inc and John Does 1-12, Defendants, Case No. 2:17-cv- 10910-MAG-MKM (E.D. Mich., March 22, 2017), seeks statutory damages, injunctive relief, compensation and attorney's fees for violation of the Telephone Consumer Protection Act. Plaintiff did not expressly invite or give permission to anyone to send any advertisement from Defendants through facsimile, says the complaint. Curaden is engaged in selling oral care products.[BN] The Plaintiff is represented by: Phillip A. Bock, Esq. Robert M. Hatch, Esq. Bock, Hatch, Lewis & Oppenheim, LLC 134 N. La Salle Street, Suite 100 Chicago, IL 60602 Tel: (312) 658-5500 - and - Richard Shenkan, Esq. Shenkan Injury Lawyers, LLC 6550 Lakeshore St. West Bloomfield, MI 48323 Tel: (248) 562-1320 Email: rshenkan@shenkanlaw.com DELOITTE: Ontario Court Certifies Doc Reviewers' Class Action ------------------------------------------------------------- Monkhouse Law on April 18 disclosed that a class action against Deloitte involving document reviewers has been certified by the Ontario Superior Court of Justice, subject to Court approval of amendments to the proposed class definition and the replacement of the representative plaintiff. The action alleges that document reviewers working for Deloitte were misclassified as independent contractors and are employees. The claim seeks compensation for unpaid vacation, unpaid statutory holiday pay and unpaid overtime. The proposed class consists of 418 lawyers who were doing document review at Deloitte since Deloitte purchased the document review company ATD Inc. The decision is a significant step forward for misclassified workers who do not have the same protections as employees. Justice Belobaba considered the changing employment landscape noting that companies are increasingly labelling employees as self-employed in an effort to reduce operating costs. Justice Belobaba also clarified that having two jobs does not mean that a worker is not an employee. Putative Class Counsel seeks a new representative plaintiff for this action to be viable. If you worked as a document reviewer for Deloitte and are interested in becoming a representative plaintiff please contact Andrew Monkhouse at -- andrew@monkhouselaw.com -- or David Fogel at -- dfogel@lmkalwyers.com If a new representative Plaintiff is not found by June 12, 2017, the action will be dismissed. "This certification motion shows that employers who misclassify employees as contractors can have substantial liability towards those workers, no matter what the contract says," said Andrew Monkhouse. "The case is a reminder that even the largest companies in Canada are subject to the same laws relating to the treatment of their workers." Sam Marr and David Fogel said that the decision "reflects the economic realities of workers in today's economic climate" and "it would be a loss to all workers if a new representative plaintiff is not found resulting in the dismissal of this action." None of the allegations have been proven in court, and Deloitte denies liability. A copy of the decision of Justice Belobaba dated April 13, 2017, is available at https://is.gd/kvpbbt A copy of the Amended Statement of Claim is available at https://is.gd/2q0dK1 DOMINO'S PIZZA: Driver Sues for Vehicle Expense Compensation ------------------------------------------------------------ Noddy A. Fernandez, writing for Madison-St Clair Record, reports that a Domino's Pizza delivery driver has filed a class action lawsuit alleging his employer did not compensate delivery drivers for vehicular wear and tear or gas. Shiloh resident Jesse Tourville, for himself and all others similarly situated, filed a complaint on April 11 in the U.S. District Court for the Southern District of Illinois against MBR Management Corporation. He alleges the Domino's Pizza franchisee, which operates 80 Domino's franchises in Illinois and Missouri, violated the Fair Labor Standards Act, Illinois Minimum Wage Law and Illinois Wage Payment and Collection Act. According to the complaint, the plaintiffs allege he and other delivery drivers were not compensated for vehicular wear and tear, gas and other driving-related expenses. Mr. Tourville, who worked at the Troy location, alleges he and others paid "out-of-pocket" expenses of $13.38 per hour to provide, operate and maintain their vehicles, losing approximately $1.43 each hour they worked on-the- road. The plaintiffs allege MBR Management failed to compensate at least the tipped minimum wage rate for each hour worked on-the-road and failed to properly reimburse delivery drivers' expenses including cost for gasoline, vehicle depreciation, insurance, maintenance and repairs. The plaintiffs request a trial by jury and seek all available compensatory damages, liquidated damages, attorneys' fees, cost and any further relief the court deems just, necessary and proper. They are represented by Jeremiah Frei-Pearson -- jfrei- pearson@fbfglaw.com -- Todd S. Garber and Chantal Khalil -- ckhalil@fbfglaw.com -- of Finkelstein, Blankinship, Frei-Pearson and Garber LLP in White Plains, N.Y., and C. Ryan Morgan of Morgan and Morgan PA in Orlando, Fla. U.S. District Court for the Southern District of Illinois case number 3:17-cv-00373 DYNAVAX TECHNOLOGIES: Continues to Defend Securities Suit in Cal. ----------------------------------------------------------------- Dynavax Technologies Corporation continues to defend itself against a consolidated securities lawsuit in California, according to the Company's March 13, 2017, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2016. On November 18, 2016, two substantially similar securities class action complaints were filed in the U.S. District Court for the Northern District of California against the Company and two of its executive officers, in Soontjens v. Dynavax Technologies Corporation et al., ("Soontjens") and Shumake v. Dynavax Technologies Corporation et al., ("Shumake"). The Soontjens complaint alleges that between March 10, 2014 and November 11, 2016, the Company and certain of its executive officers violated Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 promulgated thereunder, in connection with statements related to HEPLISAV-B. The Shumake complaint alleges violations of the same statutes related to the same subject, but between January 7, 2016 and November 11, 2016. The plaintiffs in both actions are seeking an unspecified amount of damages and attorneys' fees and costs. On January 17, 2017, these two actions and all related actions that subsequently may be filed in, or transferred to, the District Court were consolidated into a single case entitled In re Dynavax Technologies Securities Litigation. On January 31, 2017, the court appointed lead plaintiff and lead counsel. Lead plaintiff's deadline to file a consolidated amended complaint was March 17, 2017. Dynavax Technologies Corporation is a clinical-stage immunotherapy company focused on leveraging the power of the body's innate and adaptive immune responses through toll-like receptor stimulation. The Company's current product candidates are being investigated for use in multiple cancer indications, as a vaccine for the prevention of hepatitis B and as a disease modifying therapy for asthma. DYNAVAX TECHNOLOGIES: Court Tosses Consolidated Securities Suit --------------------------------------------------------------- Dynavax Technologies Corporation disclosed in its Form 10-K filed with the Securities and Exchange Commission on March 13, 2017, for the fiscal year ended December 31, 2016, that the U.S. District Court for the Northern District of California approved the settlement and entered a final order and judgment dismissing with prejudice a consolidated securities lawsuit. On June 18, 2013, the first of two substantially similar securities class action complaints was filed in the U.S. District Court for the Northern District of California against the Company and certain of its former executive officers. The second was filed on June 26, 2013. On August 22, 2013, these two complaints and all related actions that subsequently may be filed in, or transferred to, the District Court were consolidated into a single case entitled In re Dynavax Technologies Securities Litigation. On September 27, 2013, the Court appointed a lead plaintiff and lead counsel. On November 12, 2013, lead plaintiff filed his consolidated class action complaint (the "consolidated complaint"), which named a former director of the Company as a defendant in addition to the Company and the former executive officers identified in the two prior complaints (collectively, the "defendants"). The consolidated complaint alleged that between April 26, 2012 and June 10, 2013, the Company and certain of its executive officers and directors violated Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 promulgated thereunder, in connection with statements related to the Company's product, HEPLISAV-B, an investigational adult hepatitis B vaccine. The consolidated complaint sought unspecified damages, interest, attorneys' fees, and other costs. On September 7, 2016, the parties signed the Stipulation of Settlement, which provides for a payment of $4.5 million by the defendants, of which the Company is responsible for $4.1 million, and results in the dismissal and release of all claims against the defendants in connection with the securities class action, upon final court approval. The settlement will be paid for by the Company's insurance carriers. On February 6, 2017, the Court approved the settlement and entered a Final Order and Judgment dismissing the case with prejudice. Dynavax Technologies Corporation is a clinical-stage immunotherapy company focused on leveraging the power of the body's innate and adaptive immune responses through toll-like receptor stimulation. The Company's current product candidates are being investigated for use in multiple cancer indications, as a vaccine for the prevention of hepatitis B and as a disease modifying therapy for asthma. EL POLLO LOCO: Awaits OK of Settlement in Orange Cty., Cal. Suit ---------------------------------------------------------------- El Pollo Loco Holdings, Inc., awaits approval of its settlement of a putative class action lawsuit commenced in the Superior Court of the State of California, County of Orange, according to the Company's March 10, 2017, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 28, 2016. On or about February 24, 2014, a former employee filed a class action in the Superior Court of the State of California, County of Orange, against El Pollo Loco, Inc., on behalf of all putative class members (all hourly employees from 2010 to the present) alleging certain violations of California labor laws, including failure to pay overtime compensation, failure to provide meal periods and rest breaks, and failure to provide itemized wage statements. The putative lead plaintiff's requested remedies include compensatory and punitive damages, injunctive relief, disgorgement of profits, and reasonable attorneys' fees and costs. No specific amount of damages sought was specified in the complaint. The parties have executed a Stipulation of Class Settlement and Release which has been submitted for court approval. The Company says purported class actions alleging wage and hour violations are commonly filed against California employers, and the Company fully expects to have to defend against similar lawsuits in the future. El Pollo Loco Holdings, Inc., is a Delaware corporation headquartered in Costa Mesa, California. The Company's activities are conducted principally through its indirect wholly-owned subsidiary, El Pollo Loco, Inc., which develops, franchises, licenses and operates quick-service restaurants under the name El Pollo Loco(R). The restaurants, which are located principally in California but also in Arizona, Nevada, Texas, and Utah, specialize in flame-grilled chicken in a wide variety of contemporary Mexican-influenced entrees, including specialty chicken burritos, chicken quesadillas, chicken tortilla soup, Pollo Bowls and Pollo Salads. EL POLLO LOCO: Wins More Time to Respond to "Turocy" Amended Suit ----------------------------------------------------------------- In the case, Daniel Turocy v. El Pollo Loco Holdings, Inc. et al., Case No. 8:15-cv-01343 (C.D. Cal.), Judge David O. Carter granted the Stipulation for Extension of Time to File Response To Consolidated Third Amended Complaint and Set Briefing Schedule, filed by Defendants El Pollo Loco Holdings, Inc., Freeman Spogli & Co., Laurance Roberts, Stephen J. Sather, Trimaran Capital Partners, Trimaran Pollo Partners, L.L.C., Edward J. Valle. Plaintiffs Dr. Richard Levy, Peter Kim, Ron Huston, Robert W. Kegley, Sr., Samuel Tanner filed the Consolidated Third Amended Complaint for Violations of the Federal Securities Laws on April 17. El Pollo Loco Holdings, Inc., continues to defend itself against a consolidated securities lawsuit pending in California, the Company said in its Form 10-K filed with the Securities and Exchange Commission on March 10, 2017, for the fiscal year ended December 28, 2016. Daniel Turocy, et al. v. El Pollo Loco Holdings, Inc., et al. (Case No. 8:15-cv-01343) was filed in the United States District Court for the Central District of California on August 24, 2015, and Ron Huston, et al. v. El Pollo Loco Holdings, Inc., et al. (Case No. 8:15-cv-01710) was filed in the United States District Court for the Central District of California on October 22, 2015. The two lawsuits have been consolidated, with co-lead plaintiffs and class counsel. A consolidated complaint was filed on January 29, 2016, on behalf of co-lead plaintiffs and others similarly situated, alleging violations of federal securities laws in connection with Holdings common stock purchased or otherwise acquired and the purchase of call options or the sale of put options, between May 1, 2015 and August 13, 2015 (the "Class Period"). The named defendants are Holdings; Stephen J. Sather, Laurance Roberts, and Edward J. Valle (collectively, the "Individual Defendants"); and LLC, Trimaran Capital Partners, and Freeman Spogli & Co. (collectively, the "Controlling Shareholder Defendants"). Among other things, Plaintiffs allege that, in 2014 and early 2015, Holdings suffered losses due to rising labor costs in California and, in an attempt to mitigate the effects of such rising costs, removed a $5 value option from our menu, which resulted in a decrease in value-conscious store traffic. Plaintiffs further allege that during the Class Period, Holdings and the Individual Defendants made a series of materially false and misleading statements that concealed the effect that these factors were having on store sales growth, resulting in Holdings stock continuing to be traded at artificially inflated prices. As a result, Plaintiffs and other members of the putative class allegedly suffered damages in connection with their purchase of Holdings' stock during the Class Period. In addition, Plaintiffs allege that the Individual Defendants and Controlling Shareholder Defendants had direct involvement in, and responsibility over, the operations of Holdings, and are presumed to have had, among other things, the power to control or influence the transactions giving rise to the alleged securities law violations. In both cases, Plaintiffs seek an unspecified amount of damages, as well as costs and expenses (including attorneys' fees). On July 25, 2016, the Court issued an order granting, without prejudice, Holdings' Motion to Dismiss plaintiff's complaint for failure to state a claim. Plaintiffs were granted leave to amend their complaint, and filed an amended complaint on August 22, 2016. Defendants intend to vigorously defend against the claims asserted. El Pollo Loco Holdings, Inc., is a Delaware corporation headquartered in Costa Mesa, California. The Company's activities are conducted principally through its indirect wholly-owned subsidiary, El Pollo Loco, Inc., which develops, franchises, licenses and operates quick-service restaurants under the name El Pollo Loco(R). The restaurants, which are located principally in California but also in Arizona, Nevada, Texas, and Utah, specialize in flame-grilled chicken in a wide variety of contemporary Mexican-influenced entrees, including specialty chicken burritos, chicken quesadillas, chicken tortilla soup, Pollo Bowls and Pollo Salads. ENRICH FINANCIAL: Aleksanian Sues Over False Advertisement ---------------------------------------------------------- Lolita Aleksanian and Alen Issagholian, individually and on behalf of all others similarly situated, Plaintiffs v. Enrich Financial, Inc., Defendant, Case No. 2:17-cv-02359 (C.D. Cal., March 27, 2017), is brought against the Defendant to stop Defendant's practice of falsely advertising its services and to obtain redress for a nationwide class of consumers who changed position, within the applicable statute of limitations period, as a result of Defendant's false and misleading advertisements. Defendant is a corporation with principal place of business in Connecticut and state of incorporation in California and is engaged in the business of providing credit repair services, credit card and loan settlement, and representation for collection matters. Defendant represents that it will provide credit repair services, credit card and loan settlement, and representation for collection matters when this is in fact false. Defendant misrepresented and falsely advertised to Plaintiff and others similarly situated consumers these services. Plaintiff and others similarly situated purchased or attempt to purchase these services. In so doing, Defendant has violated California consumer protection statutes, the complaint asserts. [BN] The Plaintiff is represented by: Todd M. Friedman, Esq. Meghan E. George, Esq. Law Offices of Todd M. Friedman, P.C. 21550 Oxnard St., Suite 780 Woodland Hills, CA 91367 Tel: 877-206-4741 Fax: 866-633-0228 Email: tfriedman@toddflaw.com mgeorge@toddflaw.com abacon@toddflaw.com ENVISION HEALTHCARE: To Pay $300,000 to Plaintiffs' Counsel ----------------------------------------------------------- Envision Healthcare Corporation said in its Form 8-K filed with the Securities and Exchange Commission on March 10, 2017, that the information contained in the Current Report is being furnished pursuant to an order of the Court of Chancery of the State of Delaware, providing notice of certain payments (for a total of $300,000) made by the Company to plaintiffs' counsel in satisfaction of claims related to the Merger. On December 14, 2016, the Delaware Court entered an order, pursuant to a stipulation, dismissing with prejudice as to the named plaintiff only the action entitled Brian Anderson v. William A. Sanger, et al., C.A. No. 12561-CB (the "Delaware Action"), in which certain stockholders of Envision Healthcare Holdings, Inc. ("Envision Holdings") had asserted claims of breach of fiduciary duty against the former directors of Envision Holdings, and claims of aiding and abetting those breaches of fiduciary duty against Barclays PLC, in connection with the merger of Envision Holdings and AmSurg Corp. (the "Merger"). The claims had been asserted on behalf of a purported class of all stockholders of Envision Holdings excluding the defendants and their relatives, representatives and affiliates (the "Proposed Class"), but the Delaware Court made no ruling on certification of the Proposed Class, and any claims of members of the Proposed Class (other than the named plaintiffs) were dismissed without prejudice by the same order. The Delaware Court retained jurisdiction to determine an anticipated application by plaintiff in the Delaware Action for an award of attorneys' fees and expenses in connection with claims that plaintiff believed were mooted by disclosures made in a supplemental Form S-4 filed on October 7, 2016 and the definitive joint proxy statement/prospectus filed on October 21, 2016. On February 7, 2017, plaintiffs in the Delaware Action and in another action entitled Eric Voth, et al. v. Envision Healthcare Holdings, Inc., et al., Civil Action No. 1:16-cv-02213-MEH, filed in the U.S. District Court for the District of Colorado (the "Federal Court"), asserting federal disclosure claims in connection with the Merger, which had also been dismissed with prejudice as to the named plaintiffs only and without prejudice as to all members of the proposed class in that action, agreed with defendants that Envision Healthcare Corporation, as successor to Envision Holdings, would pay a total of $300,000 to plaintiffs' counsel in both actions in satisfaction of all plaintiffs' claims for attorneys' fees and expenses. On March 2, 2017, the Delaware Court entered an order, pursuant to a stipulation, providing that notice of these payments be given through the filing of this Form 8-K. Neither the Delaware Court nor the Federal Court has been asked to review, and neither court will pass judgment on, the agreed payment of plaintiffs' attorneys' fees and expenses. EXPEDIA INC: Texas Cities Awarded $25MM in Hotel Tax Class Action ----------------------------------------------------------------- Vidya Kauri, writing for Law360, reports that online travel companies including Expedia Inc. and Hotels.com that were slapped with an $84 million judgment for underpaying hotel occupancy taxes in various Texas cities should now pay an additional $25 million to attorneys representing the cities, a magistrate judge recommended on April 17. In a report to a Texas federal court, U.S. Magistrate Judge Elizabeth Chestney recommended awarding less than the $43 million in fees that attorneys for more than 170 Texas municipalities requested shortly after their victory in April 2016. That win came in a class action initiated by San Antonio a decade earlier, which the cities say resulted in "the largest judgment" that any local government has won to recover hotel occupancy taxes. The fee request represented a base "lodestar" amount of approximately $10.8 million with a multiplier of four, as permitted by the Texas Rules of Civil Procedure for class counsel. The 16 online travel companies in the suit contested the fees sought, arguing that the lodestar should be should be lower and not increased by a multiplier, that a large portion of paralegal time being claimed was really clerical in nature, and that the class counsel's hourly rates far exceeded prevailing rates. However, Judge Chestney said that even though the plaintiffs' paralegals did perform "many purely clerical tasks," the travel companies were overstating the amount of time attributed to such activities. The court should reduce plaintiffs' paralegal time by 15 percent and, based on the "extraordinary results" and substantial monetary award that class counsel obtained, the court should grant a lodestar amount of just a little more than $10 million with a multiplier of 2.5, Judge Chestney recommended. "Hotel-occupancy litigation is a specialized type of litigation, as evidenced by the fact that there are only a handful of Texas published opinions in this area," she said. "The court takes judicial notice of lead and co-counsel's exceptional qualifications." The decadelong class action has involved extensive discovery, more than 80 witnesses, lengthy motions for cross-judgment and a monthlong jury trial. The parties also spent years filing post- trial motions and calculating unpaid taxes owed before the court's final judgment was entered, and then they engaged in further "considerable . . . motion practice" until the final judgment was amended, according to court records. Judge Chestney also recommended that the court grant most of the class counsel's request for $1.77 million in expenses from the common fund for photocopying charges, postage, messenger services, the cost of travel to deposition locations and fees for experts and consultants. Many of these expenses, except those incurred for meals, were reasonable and necessary, Judge Chestney said, recommending that each plaintiff bear equally the award for $1.75 million in nontaxable litigation expenses. Counsel for the plaintiffs declined to comment. A representative for the online travel companies could not be reached for comment. The cities are represented by Ferdinand F. Fischer III of the Law Office of Trey Martinez Fischer, Gary Cruciani, Michael P. Fritz and Steven D. Wolens of McKool Smith PC, Michael Debs Bernard of Bracewell LLP, Frank Herrera Jr. of The Herrera Law Firm Inc. and Patrick J. O'Connell of O'Connell & Soifer LLP. The travel companies are represented by Deborah S. Sloan, Emmanuel E. Ubinas -- eeubinas@jonesday.com -- and James Paul Karen of Jones Day, Leslie J. Strieber III, Ricardo G. Cedillo and Mark W. Kiehne of Davis Cedillo & Mendoza Inc., Elizabeth B. Herrington -- beth.herrington@morganlewis.com -- and Tedd M. Warden -- tedd.warden@morganlewis.com -- of Morgan Lewis & Bockius LLP, Jeffrey A. Rossman -- jrossman@freeborn.com -- of Freeborn & Peters LLP, Stacy R. Horth-Neubert of Skadden Arps Slate Meagher & Flom LLP, and Brian S. Stagner and Stacy S. Russell -- stacy.horth-neubert@skadden.com -- of Kelly Hart & Hallman PC. The case is City of San Antonio, Texas, et al. v. Hotels.com LP, case number 5:06-cv-00381, in the U.S. District Court for the Western District of Texas. FBR & CO: Briefing on Bids to Dismiss "Gaynor" Suit to End in 2Q ---------------------------------------------------------------- Briefing on the Defendants' motions to dismiss a consolidated securities lawsuit involving a subsidiary is expected to be completed by the second quarter of 2017, FBR & Co. disclosed in its Form 10-K filed with the Securities and Exchange Commission on March 13, 2017, for the fiscal year ended December 31, 2016. On January 5, 2017, the complaints filed in November 2015 and May 2016 naming MLV & Co. LLC (a Company subsidiary) as a defendant in putative class action lawsuits alleging claims under the Securities Act in connection with the offerings of Miller Energy Resources, Inc. ("Miller") have been consolidated. The Master Consolidated Complaint, styled Gaynor v. Miller et al., is pending in the United States District Court for the Eastern District of Tennessee, and, like its predecessor complaints, continues to allege claims under Sections 11 and 12 of the Securities Act against nine underwriters for alleged material misrepresentations and omissions in the registration statement and prospectuses issued in connection with six offerings (February 13, 2013; May 8, 2013; June 28, 2013; September 26, 2013; October 17, 2013 (as to MLV only) and August 21, 2014) with an alleged aggregate offering price of approximately $151 million. The plaintiffs seek unspecified compensatory damages and reimbursement of certain costs and expenses. Although MLV is contractually entitled to be indemnified by Miller in connection with this lawsuit, Miller filed for bankruptcy in October 2015 and this likely will decrease or eliminate the value of the indemnity that MLV receives from Miller. Briefing on the defendants' motions to dismiss is ongoing and expected to be completed by the second quarter of 2017. FBR & Co. is a full-service investment banking and institutional brokerage firm with a deep expertise and focus on the equity capital markets. Since the founding of certain predecessor companies, the Company has grown from a boutique investment bank with primary expertise in financial institutions into a full- service U.S. investment bank for middle-market companies. FBR & CO: Waterford Appeals Denial of Bid to Amend Complaint ------------------------------------------------------------ The Plaintiffs appeal the denial of their motion to file a third amended complaint in the lawsuit styled Waterford Township Police & Fire, Retirement System v. Regional Management Corp., et al., FBR & Co. said in its Form 10-K filed with the Securities and Exchange Commission on March 13, 2017, for the fiscal year ended December 31, 2016. On January 30, 2017, the Court in the previously disclosed putative class action lawsuit of Waterford Township Police & Fire, Retirement System, vs. Regional Management Corp. et al. denied the Plaintiffs' motion to file a third amended complaint, which would have revived claims previously dismissed on March 30, 2016. On March 1, 2017, plaintiffs filed a notice of appeal. Regional Management continues to indemnify all of the underwriters, including FBR Capital Markets & Co., pursuant to the operative underwriting agreement. FBR & Co. is a full-service investment banking and institutional brokerage firm with a deep expertise and focus on the equity capital markets. Since the founding of certain predecessor companies, the Company has grown from a boutique investment bank with primary expertise in financial institutions into a full- service U.S. investment bank for middle-market companies. FCA US: "Sebastian" Suit Consolidated in MDL 2777 ------------------------------------------------- The class action lawsuit entitled Albert Sebastian individually, and on behalf of himself and all others similarly situated v. FCA U.S., LLC, Fiat Chrysler Automobiles N.V., Robert Bosch GmbH, and Robert Bosch LLC, Case No. 3:17-cv-00085 filed on January 13, 2017, was transferred on April 11, 2017, from the District of California Southern to the U.S. District Court for the Northern District of California (San Francisco). The District Court Clerk assigned Case No. 3:17-cv-02027-EMC to the proceeding. The Case is consolidated in multidistrict litigation No. 2777. Plaintiff Albert Sebastian alleges violations of the Racketeer Influenced and Corrupt Organizations Act (RICO). The Defendants operate the American subsidiary of Fiat Chrysler Automobiles N.V., an Italian controlled automobile manufacturer. [BN] The Plaintiff is represented by: David S. Casey Jr., Esq. Ethan T. Litney, Esq. Gayle Meryl Blatt, Esq. Jeremy Keith Robinson, Esq. Wendy M. Behan, Esq. CASEY GERRY SCHENK FRANCAVILLA BLATT AND PENFIELD LLP 110 Laurel Street San Diego, CA 92101 Telephone: (619) 238-1811 Facsimile: (619) 544-9232 E-mail: dcasey@cglaw.com elitney@cglaw.com gmb@cglaw.com jrobinson@cglaw.com wbehan@cglaw.com FCA US: "Warren" Suit Consolidated in MDL 2777 ---------------------------------------------- The class action lawsuit entitled R.D. Warren, individually, and on behalf of himself and all others similarly situated v. FCA U.S., LLC, Fiat Chrysler Automobiles N.V., Robert Bosch GmbH, and Robert Bosch LLC, Case No. 7:17-cv-00059 filed on January 13, 2017, was transferred on April 11, 2017 from the District of Northern Alabama to the U.S. District Court for the Northern District of California (San Francisco). The District Court Clerk assigned Case No. 3 3:17-cv-02026-EMC to the proceeding. The Case is consolidated in multidistrict litigation No. 2777. Plaintiff Albert Sebastian alleges violations of the Racketeer Influenced and Corrupt Organizations Act (RICO). The Defendants operate the American subsidiary of Fiat Chrysler Automobiles N.V., an Italian controlled automobile manufacturer. [BN] The Plaintiff is represented by: Christopher B. Hood, Esq. Taylor Christopher Bartlett, Esq. Travis Edward Lynch, Esq. William Lewis Garrison Jr., Esq. HENINGER GARRISON DAVIS LLC 2224 1st Avenue North Birmingham, AL 35203 Telephone: (205) 326-3336 Facsimile: (205) 326-3332 E-mail: chood@hgdlawfirm.com taylor@hgdlawfirm.com tlynch@hgdlawfirm.com lewis@hgdlawfirm.com - and - K Stephen Jackson, Esq. JACKSON AND TUCKER, P.C. 2229 First Avenue North Birmingham, AL 35203-4203 Telephone: (205) 252-3535 Facsimile: (205) 252-3536 FEDERAL-MOGUL: To Defend Against Delaware Shareholder Action ------------------------------------------------------------ Icahn Enterprises L.P. and Icahn Enterprises Holdings L.P. said in their Form 10-K Report filed with the Securities and Exchange Commission on March 1, 2017, for the fiscal year ended December 31, 2016, that Federal-Mogul intends to defend against the stockholder litigation in Delaware. On September 6, 2016, Icahn entered into an agreement and plan of merger with Federal-Mogul pursuant to which, and upon the terms and subject to the conditions thereof, Icahn commenced a cash tender offer (the "Federal-Mogul Tender Offer") to acquire all of the issued and outstanding shares of Federal-Mogul's common stock not already owned by Icahn for a purchase price of $9. On September 29, 2016, September 30, 2016, October 12, 2016 and October 19, 2016, respectively, four putative class actions, captioned Skybo v. Ninivaggi et al., C.A. No. 12790, Lemanchek v. Ninivaggi et al., C.A. No. 12791, Raul v. Ninivaggi et al., C.A. No. 12821 and Mercado v. Ninivaggi et al., C.A. No. 12837, were filed in the Court of Chancery of the State of Delaware against the Board, Icahn Enterprises L.P. and certain of its affiliates, including Parent and the Offeror (the "Icahn Defendants"), and, in the case of Raul, Federal-Mogul. The complaints allege that, among other things, the Board breached its fiduciary duties by approving the proposed Merger Agreement, that the Icahn Defendants breached their fiduciary duties to the minority stockholders and/or aided and abetted the Board's breaches of its fiduciary duties, as well as alleging certain material misstatements and omissions in the Schedule 14D-9. The complaints allege that, among other things, the then-Offer Price was inadequate and, together with that the Merger Agreement, was the result of a flawed and unfair sales process and conflicts of interest of the Board and the Special Committee, alleging that the Special Committee and Federal-Mogul's management lacked independence from the Icahn Defendants. In addition, the complaints allege that the Merger Agreement contains certain allegedly preclusive deal protection provisions, including a no-solicitation provision, an information rights provision and a matching rights provision. Among other things, the complaints sought to enjoin the transactions contemplated by the Merger Agreement, as well as award costs and disbursements, including reasonable attorneys' and experts' fees. The Raul and Mercado complaints further seek to rescind the transaction or award rescissory damages, or (in the case of Raul) award a quasi- appraisal remedy in the event that the transaction was consummated, as well as award money damages. On October 28, 2016, all four actions were consolidated under the caption In re Federal-Mogul Holdings, Inc. Stockholder Litigation, C.A. No. 12790-CB (the "Delaware Action"). On February 3, 2017, an order was entered requiring plaintiffs to file their amended complaint by March 6, 2017. Federal-Mogul believes that the claims in the Delaware Action are without merit and intends to defend against them vigorously. FEDERAL-MOGUL: To Defend Against Michigan Shareholder Suit ---------------------------------------------------------- Icahn Enterprises L.P. and Icahn Enterprises Holdings L.P. said in their Form 10-K Report filed with the Securities and Exchange Commission on March 1, 2017, for the fiscal year ended December 31, 2016, that Federal-Mogul intends to defend against the stockholder litigation in Michigan. On September 6, 2016, Icahn entered into an agreement and plan of merger with Federal-Mogul pursuant to which, and upon the terms and subject to the conditions thereof, Icahn commenced a cash tender offer (the "Federal-Mogul Tender Offer") to acquire all of the issued and outstanding shares of Federal-Mogul's common stock not already owned by Icahn for a purchase price of $9. On October 5, 2016, a putative class action captioned Sanders v. Federal-Mogul Holdings Corporation et al., C.A. No. 16-155387 was filed in the Circuit Court for Oakland County of the State of Michigan against the Company, the Board and the Icahn Defendants (the "Michigan Action"). The complaint alleges, among other things, that the Board breached its fiduciary duties and that Federal-Mogul and the Icahn Defendants aided and abetted the Board's breaches of its fiduciary duties, as well as alleging certain material misstatements and omissions in the Schedule 14D- 9. The complaint alleges that, among other things, the then-Offer Price was unfair and the result of an unfair sales process that included conflicts of interest. In addition, the complaint alleges that the Merger Agreement contains certain allegedly preclusive deal protection provisions, including a no-solicitation provision, an information rights provision and a matching rights provision. Among other things, the complaint sought to enjoin the transactions contemplated by the Merger Agreement, or, in the event that the transactions were consummated, rescind the transactions or award rescissory damages, as well as award money damages and costs, including reasonable attorneys' and experts' fees. On February 10, 2017, an order was entered providing that plaintiff shall have through March 6, 2016, to file his First Amended Complaint. Federal-Mogul believes that the claims in the Michigan Action are without merit and intends to defend against them vigorously. FEDERAL WAY, WA: Faces Class Action Over Illegal School Zone ------------------------------------------------------------ Raechel Dawson, writing for Federal Way Mirror, reports that one company, two Tacoma residents and a Federal Way resident are suing the city of Federal Way in a class-action lawsuit for ticketing drivers in a school zone they say is illegal for a span of seven years. Attorney Alexander S. Kleinberg -- akleinberg@eisenhowerlaw.com -- with Eisenhower Carlson PLLC, claims the city owes an estimated $3.9 million to the plaintiffs and others affected. Approximately 9,000 people were ticketed between 2009-13, according to a past report. It is unknown how many were ticketed between 2014 and present day. The lawsuit was filed in December with declarations being made this month. The plaintiffs listed in the suit, Jimmy Dewberry and Todd Scheidegger of Tacoma, Marilyn P. Gary of Federal Way, and Dickson Company, each received speeding tickets in the Saghalie school zone for going more than 20 mph. Their tickets were issued by photo enforcement cameras or police officers. Each had to pay between $210-$250 for the tickets. Mr. Kleinberg wrote the school zone is illegal because it is more than 300 feet from Saghalie Middle School. Citing Washington state law, RCW 46.61.440(2), he states the law limits where school zones can be created and that they "(a) may be created on a highway bordering a marked school; and (b) may extend three hundred (300) feet from the border of the closest school property." The Saghalie school zone, however, extends two blocks from the school, or approximately 1,000 feet. It is located on 21st Avenue Southwest. "The payments that plaintiffs and the class members made to the defendants . . . for speeding in the Saghalie school zone were induced by fraud and deceit and/or by misrepresentations of rights available to citizens," the lawsuit states. "Plaintiffs and members of the class lacked knowledge of facts upon which to protest payment and/or made these payments under duress, compulsion, or mistake." City spokeswoman Cathy Schrock said the city does not comment on pending litigation and that city officials believe the Saghalie school zone is legal and are "participating in litigating that fact." This isn't the first time city officials have had to defend the Saghalie school zone. In 2014, municipal court judges Dave Larson and Rebecca Robertson ruled the area in question was a legal school zone after seven defendants challenged their tickets. The defendants brought a 2013 Federal Way Mirror article with them that reported the city dropped the speeding ticket of Stephen Cramer after he showed the then-pro tem judge a map. The map showed that the middle school was, in fact, more than 1,000 feet from where Cramer was ticketed. But the judges in the 2014 case said it was legal under state law RCW 46.61.440(1), as there is no provision requiring that the school speed zone be within 300 feet of a school boundary. In fact, they said the crosswalk was built in 1995 after a child was struck and killed by a car in that area. In addition to the monetary restitution, the plaintiffs request an injunction ordering the city of Federal Way remove all school zone signs, markings and photo enforcement cameras from the "school zone," as well as prohibit calling the area a school zone "absent a change in controlling state law that provides for such." FIAT CHRYSLER: Seeks Dismissal of Clutch Defect Class Action ------------------------------------------------------------ John Kennedy and Suevon Lee, writing for Law360, report that Fiat Chrysler on April 17 urged a California federal judge to rule in its favor in a lawsuit over an alleged clutch defect in certain Dodge Dart vehicles, saying that the proposed class has provided no evidence of an actual defect. All the car owners' claims focus on an alleged defect in the clutch system of manual transmission Darts for model years 2013 and 2014, but the two named plaintiffs have only managed to show that their vehicles needed repairs after about two years of driving. Just because part of a car needs to be fixed after being driven tens of thousands of miles doesn't mean there's a defect, FCA US LLC said in its summary judgment motion. "The failure of a product to last forever is not a defect because to hold otherwise would mean that 'a manufacturer would no longer be able to issue limited warranties, and product defect litigation would become as widespread as manufacturing itself,'" the company said, citing the Ninth Circuit's decision earlier this year in Williams v. Yamaha Motor Co. The two named plaintiffs, Carlos Victorino and Adam Tavitian, have said that the alleged defect makes the internal and external seals in the clutch master cylinder ineffective at keeping debris from prematurely wearing down the seals. They've also said that the alleged defect might cause other problems, such as an inability to shift gears and difficulty bringing vehicles to a stop. Mr. Victorino bought a 2014 Dart in March of that year, and in January 2016, he noticed that the gears weren't "catching" properly when he attempted to shift. He took his vehicle to a local dealership, where technicians determined that the clutch was "worn out" and attributed the problem to "normal wear and tear." They did not note a defect, contamination or degraded seals. At the time, Mr. Victorino's Dart had been driven 34,351 miles, FCA said. The repairs cost Mr. Victorino $1,165, which he asked FCA to cover. He claimed it should be covered by a January 2016 voluntary customer service action that covered repairs related to plasticizer leaching from a hose. FCA denied the request because the repair was done because the clutch was worn out, not due to an issue with the seals or hose. Mr. Tavitian bought his 2013 Dart in November 2012 and took it to a local dealership in July 2014, complaining that the clutch was sticking and his vehicle was failing to shift gears. While his Dart was at the dealership, it was discovered that he had removed its odometer and replaced it with one that showed 28,697 fewer miles than it should've. The actual mileage was 42,075 miles. He paid $298 for the fix and sought reimbursement, claiming it was covered by the January 2016 customer service action. FCA denied his application only because of the odometer tampering, since without that, the repair would've been covered. All the evidence shows is that the two men drove their Darts for almost two years before experiencing a problem with the clutch, FCA said. When asked for evidence and facts to back up their argument, Messrs. Tavitian and Victorino only said that the clutch needed repairs, the company added. In November, U.S. District Judge Gonzalo P. Curiel refused to dismiss the case, saying that there was a "plausible inference" that FCA knew about the alleged defect and tried to hide it. The plaintiffs could not be reached for comment on April 18. FCA is represented by Edwin M. Boniske and William M. Low of Higgs Fletcher & Mack LLP and by Kathy W. Wisniewski, Stephen A. D'Aunoy and Thomas L. Azar Jr. of Thompson Coburn LLP. The plaintiffs are represented by Jordan L. Lurie, Tarek H. Zohdy, Cody R. Padgett and Karen L. Wallace of Capstone Law APC. The case is Victorino, et al., v. FCA US LLC, case number 3:16-cv- 01617, in the U.S. District Court for the Southern District of California. FIRSTENERGY CORP: Faces Class Action Over Coal Waste Dump --------------------------------------------------------- Scott Beveridge, writing for Observer-Reporter, reports that residents of a Fayette County village have filed a federal class- action lawsuit against FirstEnergy Corp. and others claiming they are being subjected to dangerous chemicals from fugitive dust that leaves a large coal waste dump along the Monongahela River. The plaintiffs from LaBelle filed the lawsuit on April 14 seeking relief in the form of health monitoring from the corporation, as well as NRG Energy Inc. and Matt Canestrale Contraction Inc. of Belle Vernon, the court record indicates. "I think the people that live there in LaBelle are being completely ignored and have been poisoned for some time, and it's not going to stop," said their attorney, Louise R. Caro of Philadelphia. "That dust is not contained, and with the weather, wind, LaBelle is always getting inundated with this dust." The lawsuit claims the residents have been subjected to dust from the 506.7-acre site that includes lead, arsenic, cadmium and chromium. The site dates to 1903, when it was owned by Vesta Coal Co., a subsidiary of Jones & Laughlin Steel Corp. It quickly became the largest coal-preparation processing site in the world, the lawsuit states. The owners of the site went bankrupt in the 1990s before Canestrale entered into a contract in 1995 to purchase the processing company's assets. Canestrale also entered into a consent agreement with the state Department of Environmental Protection in 1997 that outlined its duties to reclaim and close the site, the lawsuit contends. Canestrale reclaimed the site with coal ash generated at power plants operated by First Energy of Akron, Ohio, and NRG Energy of Princeton, N.J., Caro stated in the lawsuit. "The pile covers a large hill that looms high over the town of LaBelle, Pennsylvania," she stated in the records. "The coal ash is sent by open, uncovered barge to the prep site and then by open, uncovered truck up to the refuse site." Caro said such an operation should not have been conducted so close to homes. FirstEnergy spokeswoman Stephanie Walton said Pennsylvania promotes the use of coal ash to close and reclaim legacy mine property, and that thousands of acres of land have been successfully reclaimed with the material across the state. "No material from FirstEnergy power plants is currently being beneficially used at LaBelle," Ms. Walton said. She said FirstEnergy is reviewing the lawsuit. Material from the Mitchell Power Plant in Union Township and Hatfield's Ferry Power Station in Greene County were used in LaBelle. The plaintiffs are identified in the lawsuit as Holly Rice and children, Rudolf and Yma Smith, Gary J. and Kimberly Kuklish, George and Ursula Markish and Darrel and Gina Redman. They are seeking more than $5 million in damages. FORD MOTOR: Kinnunen Sues Over Faulty Door Lock ----------------------------------------------- Courthouse News Service reported that faulty door-lock assemblies prevent Ford Edge and Flex drivers from locking any doors and pose a significant safety risk for those models as well as the Lincoln MKT and MKX, a class claims in Detroit federal court. The lead plaintiff is Roger Kinnunen, and the defendant is Ford Motor Co. The case is captioned, ROGER KINNUNEN, on behalf of himself and all others similarly situated, Plaintiff, v. FORD MOTOR COMPANY, Defendant. Case No. 2:17-cv-11053-AC-EAS(E.D. Mich. April 4, 2017). Counsel for Plaintiff: E. Powell Miller, Esq. Sharon S. Almonrode, Esq. Dennis A. Lienhardt, Esq. THE MILLER LAW FIRM, P.C. 950 W. University Dr., Suite 300 Rochester, MI 48307 Telephone: (248) 841-2200 E-mail: epm@millerlawpc.com ssa@millerlawpc.com dal@millerlawpc.com - and - Joseph G. Sauder, Esq. Matthew D. Schelkopf, Esq. Joseph B. Kenney, Esq. MCCUNEWRIGHT AREVALO LLP 555 Lancaster Avenue Berwyn, PA 19312 Telephone: (610) 200-0581 - and - Richard D. McCune, Esq. David C. Wright, Esq. MCCUNEWRIGHT AREVALO LLP 3281 East Guasti Road, Suite 100 Ontario, CA 91761 Telephone: (909) 557-1250 FRESHLY INC: Removed "Johnson" Suit to East. District California ---------------------------------------------------------------- The class action lawsuit styled Kyle Johnson, individually and on behalf of all others similarly situated v. Freshly, Inc., Case No. SCV0039098 filed on April 12, 2017, was removed on April 13, 2017, from the Placer County Superior Court to the U.S. District Court for the Eastern District of California (Sacramento). The District Court Clerk assigned Case No. 2:17-cv-00773-MCE-CKD to the proceeding. Freshly, Inc. provides freshly prepared meals online. [BN] The Plaintiff is represented by: Scott J. Ferrell, Esq. PACIFIC TRIAL ATTORNEYS 4100 Newport Place Drive, Suite 800 Newport Beach, CA 92660 Telephone: (949) 706-6464 Facsimile: (949) 706-6469 E-mail: sferrell@pacifictrialattorneys.com The Defendant is represented by: Steven A. Ellis, Esq. GOODWIN PROCTER LLP 601 S. Figueroa St., 41st Floor Los Angeles, CA 90017 Telephone: (213) 426-2500 Facsimile: (213) 623-1673 E-mail: sellis@goodwinlaw.com FRIENDS OF FREDDIE: Faces Class Action Over Sick Dogs ----------------------------------------------------- Lisa Irizarry, writing for Newsday, reports that a Middle Island pet rescue under investigation by the state attorney general's office was hit with a lawsuit on April 17 alleging that sick dogs are being put up for adoption and that fake pet medications are being distributed. Miller Place attorney Vesselin Mitev said in a telephone interview that he filed the suit on April 17 against Friends of Freddie Pet Rescue in State Supreme Court in Suffolk, on behalf of himself and three other Long Islanders. Mr. Mitev said that soon after he and the other plaintiffs adopted dogs there, the canines were found to have illnesses and problems ranging from pneumonia to parasites. One of their animals died, according to the lawsuit. A representative from Friends of Freddie was not immediately available for comment on April 17. Mr. Mitev, who adopted his Lab mix, Percival, from Friends of Freddie, stated in the lawsuit that the Middle Country Road facility is a "public nuisance" that should be closed because some of the health problems are contagious. The lawsuit, which seeks class-action status, claims that to "induce" adoptions, prospective "parents" were provided phony preventive medications to guard against certain health issues. Mr. Mitev said that when Percival came down with a cough, Mr. Mitev was given purported medicine by workers at the facility. He said he learned through his vet that the medicine was actually a mixture of herbs and water. Another plaintiff, Kenneth Harsch Jr., 28, of Medford, said in a telephone interview on April 17 that he adopted his Chiweenie -- a Chihuahua-Dachsund mix -- around Thanksgiving of last year when the dog was 6 months old. "When I got him home, he was coughing and would have to lay down a lot," Mr. Harsch said. He said he got the same medication from the facility and added, "My vet didn't even know what it was." Mr. Harsch said the dog was diagnosed by the vet with advanced pneumonia, kennel cough and parasites. Unspecified damages are being sought in the lawsuit, and Mr. Mitev said he is seeking others who have had problems with the facility to join the legal action. Friends of Freddie Rescue also is the subject of an investigation by the state attorney general's office. A spokeswoman for the AG's office said the probe was ongoing. She has declined to provide information about the nature of the investigation or when it started. Two of the plaintiffs in the lawsuit -- Kristen Addiss, 27, of Port Jefferson, and Kim Kondak, 39, of Shirley -- said in interviews with Newsday that they reported to the attorney general's office their experience with sick dogs they adopted from the rescue. After the attorney general's investigation was revealed, Beth Matthews, a volunteer at Friends of Freddie, said she was aware of the probe but said it had to do with paperwork and questions about whether the facility has kept proper records as a nonprofit operation. Ms. Matthews, who said there were about 70 dogs being housed at the shelter, acknowledged there had been complaints of sick animals but she said such reports come with taking in rescue dogs that could come from all over the country. She said they can appear healthy and have an illnesses develop weeks later. She said it was also possible some of the new owners did not take care of their dogs properly after they left the shelter. GENVEC INC: Rigrodsky & Long Files Securities Class Action ---------------------------------------------------------- Rigrodsky & Long, P.A. on April 17 disclosed that it has filed a class action complaint in the United States District Court for the District of Delaware on behalf of holders of GenVec, Inc. ("GenVec") (NASDAQ:GNVC) common stock in connection with the proposed acquisition of GenVec by Intrexon Corporation and Intrexon GV Holding, Inc. (collectively, "Intrexon") announced on January 24, 2017 (the "Complaint"). The Complaint, which alleges violations of the Securities Exchange Act of 1934 against GenVec, its Board of Directors (the "Board"), and Intrexon, is captioned Parshall v. GenVec, Inc., Case No. 1:17-cv-00338-GMS (D. Del.). If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel, Seth D. Rigrodsky or Gina M. Serra at Rigrodsky & Long, P.A., 2 Righter Parkway, Suite 120, Wilmington, DE 19803, by telephone at (888) 969-4242; by e-mail at info@rl- legal.com; or at http://rigrodskylong.com/contact-us/. On January 24, 2017, GenVec entered into an agreement and plan of merger (the "Merger Agreement") with Intrexon. Pursuant to the Merger Agreement, GenVec shareholders will receive 0.297 shares of Intrexon common stock, plus one contingent payment right (the "Proposed Transaction"). Among other things, the Complaint alleges that, in an attempt to secure shareholder support for the Proposed Transaction, defendants issued materially incomplete disclosures in a registration statement (the "Registration Statement") filed with the United States Securities and Exchange Commission on March 17, 2017. The Registration Statement, which recommends that GenVec stockholders vote in favor of the Proposed Transaction, omits material information necessary to enable shareholders to make an informed decision as to how to vote on the Proposed Transaction, including material information with respect to GenVec's financial projections, the analyses performed by GenVec's financial advisor, and potential conflicts of interest. The Complaint seeks injunctive and equitable relief and damages on behalf of holders of GenVec common stock. If you wish to serve as lead plaintiff, you must move the Court no later than June 16, 2017. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. 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 an absent class member. With offices in Wilmington, Delaware and Garden City, New York, Rigrodsky & Long, P.A. -- http://www.rigrodskylong.com-- regularly prosecutes securities fraud, shareholder corporate, and shareholder derivative litigation on behalf of shareholders in state and federal courts throughout the United States. GOOGLE INC: Settles AdWords Advertisers' Class Action for $22.5MM ----------------------------------------------------------------- Schubert Jonckheer & Kolbe LLP on April 18 disclosed that Google Inc. and a proposed class of AdWords advertisers, represented by the law firm of Schubert Jonckheer & Kolbe LLP, on April 18 disclosed that they have reached a proposed $22.5 million settlement of claims related to Google's placement of their ads on parked domains and error pages. Plaintiffs alleged that from July 11, 2004 through March 31, 2008, Google failed to disclose to its AdWords customers that it placed their ads on websites known as parked domains and error pages. Parked domains are websites with little or no content, and error pages are websites that users visit when they enter an unregistered address into their web browser. Google denied these allegations. "We are gratified by this excellent result for millions of AdWords advertisers," said Noah Schubert of Schubert Jonckheer & Kolbe, Lead Counsel for the Class, "It has been a hard-fought nine-year case including an important victory in the Ninth Circuit." On March 9, 2017, U.S. District Court Judge Edward J. Davila granted preliminary approval of the proposed settlement. If the settlement is finally approved, Google will pay $22.5 million into a settlement fund. Under its terms, class members who submit claims will receive payment in proportion to the amount they spent on ads on parked domains and error pages during the class period. If, during the period from July 11, 2004 through March 31, 2008, you were a United States resident who had a Google AdWords account and were charged for clicks on advertisements appearing on parked domains or error pages, you are a class member and may be entitled to a settlement payment. For additional information about the settlement and to claim your payment, visit the settlement website at www.AdWordsClassAction.com or contact the settlement administrator toll-free by phone at 844-798-3628 or by email at claims@adwordsclassaction.com Class Counsel may also be reached by contacting Noah Schubert at the law firm of Schubert Jonckheer & Kolbe by phone at 415-788- 4220 or by email at adwords.settlement@sjk.law. About Schubert Jonckheer & Kolbe Schubert Jonckheer & Kolbe has extensive experience prosecuting claims on behalf of shareholders, employees, and consumers against corporate defendants across the nation. It also represents investors in shareholder derivative actions against corporate directors and officers. HEALTH NET: Blumenthal, Nordrehaug & Bhowmik Files Class Action --------------------------------------------------------------- The Sacramento employment law lawyers at Blumenthal, Nordrehaug & Bhowmik filed a class action complaint alleging that Health Net of California failed to pay their California hourly employees the correct amount of overtime wages and allegedly failed to provide their California employees with meal and rest periods as required by California law. The Health Net of California class action lawsuit, Case No. 34-2017-00210560, is currently pending in the Sacramento County Superior Court for the State of California. According to the lawsuit filed in Sacramento County Superior Court, Health Net of California allegedly paid their hourly employees non-discretionary incentive wages. The class action lawsuit further alleges the incentive wages earned by health insurance company's employees should have been included in the employees' hourly rates for the purposes of paying their employees the correct overtime pay during their employment with the company. As a result of the allegedly illegal overtime calculations conducted by Health Net of California, the class action complaint alleges other hourly employees working for the company in California were also not correctly paid all their overtime wages. The Complaint seeks an unspecified amount of backpay for Health Net's California hourly employees. Additionally, the lawsuit also seeks payment relating to alleged missed meal and rest breaks because allegedly Health Net of California did not have a policy to provide their hourly employees thirty (30) minute uninterrupted meal breaks prior to their fifth (5th) hour of work. If you would like to know more about the Health Net of California lawsuit, please contact Attorney Nicholas J. De Blouw today by calling (800) 568-8020. Blumenthal, Nordrehaug & Bhowmik is an employment law firm with offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside and Chicago that dedicates its practice to helping employees, investors and consumers fight back against unfair business practices, including violations of the California Labor Code and Fair Labor Standards Act. If you need help in collecting unpaid overtime wages, unpaid commissions, being wrongfully terminated from work, and other employment law claims, contact one of their attorneys today. HSBC MORTGAGE: Judge Tosses Claims in Default Servicing Suit ------------------------------------------------------------ JDSupra reports that on March 30, 2017, Judge Karas of the Southern District of New York dismissed multiple claims in a putative nationwide class action challenging default servicing activities. In the case, Tardibuono-Quigley v. HSBC Mortgage Corp., the plaintiff sued her lender (HSBC) and mortgage servicer (PHH) to contest charges she claimed were wrongly assessed to her. Tardibuono-Quigley v. HSBC Mortgage Corp., 2017 WL 1216925 (S.D.N.Y. Mar. 30, 2017). The Court dismissed all claims against PHH, but permitted one state statutory claim and one contract claim to continue against HSBC. After the plaintiff defaulted on her monthly payment obligations, PHH began ordering property inspections and periodic broker price opinions (BPOs) as permitted by her security agreement. The plaintiff alleged that PHH and HSBC colluded to charge her for these services when they were not needed, misled her by presenting monthly mortgage statements that omitted material information and by presenting a security agreement that mislead her as to when charges would be levied, breached the security agreement, and were unjustly enriched through collection of the allegedly unnecessary fees. HSBC and PHH filed separate motions to dismiss. The court first dismissed the plaintiff's RICO claims as to both defendants. It held that the substantive RICO claim was deficient for failure to allege actionable predicate acts of mail or wire fraud: the plaintiff alleged no misrepresentation in any monthly statements she received, and her contention that property inspection and BPO services were not needed amounted only to a breach of contract claim, not one for fraud. Because plaintiff's substantive RICO claim failed, the court dismissed her RICO conspiracy claim along with it. With respect to the plaintiff's cause of action for deceptive conduct under New York General Business Law Sec. 349, the court held that no claim was stated as to allegedly misleading monthly statements, concluding as a matter of law that no reasonable consumer would be misled by the monthly statements (which separately described the property inspections as "AUTO PPTY INSPEC" and the BPOs as "Assessed Expense - BPO COST"). The court allowed the plaintiff's claim that the security agreement was misleading to continue against HSBC, but dismissed the claim against PHH because it was not a party to the agreement. The court found that the plaintiff stated a cognizable claim against HSBC for ordering property inspections and BPOs that were not necessary, but again dismissed the claim against PHH because it was not a party to the contract. Finally, because it concluded that a written contract governed the dispute, the court dismissed the plaintiff's unjust enrichment claim against both HSBC and PHH. Goodwin partners Tom Hefferon and Joe Yenouskas represent PHH in the Tardibuono-Quigley case. HUGOTON ROYALTY: Pretrial Discovery Continues in Chieftain Suit --------------------------------------------------------------- Pretrial discovery continues in the class action lawsuit initiated by Chieftain Royalty Company, according to Hugoton Royalty Trust's March 10, 2017, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2016. In December 2010, a royalty class action lawsuit was filed against XTO Energy styled Chieftain Royalty Company v. XTO Energy Inc. in Coal County District Court, Oklahoma. XTO Energy removed the case to federal court in the Eastern District of Oklahoma. The plaintiffs allege that XTO Energy wrongfully deducted fees from royalty payments on Oklahoma wells, failed to make diligent efforts to secure the best terms available for the sale of gas and its constituents, and demand an accounting to determine whether they have been fully and fairly paid gas royalty interests. The case was certified as a class action in April 2012. XTO Energy filed an appeal of the class certification to the 10th Circuit Court of Appeals on April 26, 2012, which was granted on June 26, 2012. The court reversed the certification of the class and remanded the case back to the trial court for further proceedings. A non-binding mediation occurred September 1, 2016, but was unsuccessful. Pretrial discovery continues. XTO Energy has informed the trustee that it believes that XTO Energy has strong defenses to the Chieftain lawsuit and intends to vigorously defend its position. However, XTO Energy has informed the trustee that it is cognizant of other, similar litigation. As these cases develop, XTO Energy will assess its legal position accordingly. If XTO Energy ultimately makes any settlement payments or receives a judgment against it in Chieftain, XTO Energy has advised the trustee that it believes that the terms of the conveyances covering the Trust's net profits interests require the Trust to bear its 80% share of such settlement or judgment related to production from the underlying properties. Additionally, if the judgment or settlement increases the amount of future payments to royalty owners, XTO Energy has informed the trustee that the Trust would bear its proportionate share of the increased payments through reduced net proceeds. In the event of any such settlement or judgment, the trustee intends to review any claimed reductions in payment to the Trust based on the facts and circumstances of such settlement or judgment. Hugoton Royalty Trust is an express trust created under the laws of Texas pursuant to the Hugoton Royalty Trust Indenture entered into on December 1, 1998 between XTO Energy Inc. (formerly known as Cross Timbers Oil Company), as grantor, and NationsBank, N.A., as trustee. Southwest Bank is now the trustee of the Trust. HUGOTON ROYALTY: Royalty Suit by Roderick Trust Now Concluded ------------------------------------------------------------- The class action lawsuit captioned Wallace B. Roderick Revocable Living Trust, et al. v. XTO Energy Inc. is now concluded, Hugoton Royalty Trust said in its Form 10-K filed with the Securities and Exchange Commission on March 10, 2017, for the fiscal year ended December 31, 2016. In September 2008, a royalty class action lawsuit was filed against XTO Energy styled Wallace B. Roderick Revocable Living Trust, et al. v. XTO Energy Inc. in the District Court of Kearny County, Kansas. The case was removed to federal court in Wichita, Kansas. The plaintiffs allege that XTO Energy has improperly taken post production costs from royalties paid to the plaintiffs from wells located in Kansas, Oklahoma, and Colorado; later reduced to Kansas. The case was certified as a class action in March 2012. XTO Energy filed an appeal of the class certification to the 10th Circuit Court of Appeals on April 11, 2012, which was granted on June 26, 2012. The court reversed the certification of the class and remanded the case back to the trial court for further proceedings. The case was previously stayed pending a final decision from the Kansas Supreme Court on the Fawcett v. OPIK appeal. Following the decision in Fawcett, the Judge in Roderick ordered new briefing on the pending motions. In its pleadings, the plaintiff had alleged damages in excess of $40 million. On June 22, 2016, plaintiffs' Second Motion for Class Certification was denied. In light of the denied certification, the plaintiff moved to dismiss the case. A dismissal order has been signed and the case is now concluded. Hugoton Royalty Trust is an express trust created under the laws of Texas pursuant to the Hugoton Royalty Trust Indenture entered into on December 1, 1998 between XTO Energy Inc. (formerly known as Cross Timbers Oil Company), as grantor, and NationsBank, N.A., as trustee. Southwest Bank is now the trustee of the Trust. IMPAX LABORATORIES: Discovery Underway in Solodyn Antitrust Suit ---------------------------------------------------------------- Impax Laboratories, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on March 1, 2017, for the fiscal year ended December 31, 2016, that discovery is ongoing in the Solodyn(R) Antitrust Class Actions and trial is set for March 22, 2018. From July 2013 to January 2016, 18 complaints were filed as class actions on behalf of direct and indirect purchasers, as well as by certain direct purchasers, against manufacturers of the brand drug Solodyn(R) and its generic equivalents, including the Company. On July 22, 2013, Plaintiff United Food and Commercial Workers Local 1776 & Participating Employers Health and Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On July 23, 2013, Plaintiff Rochester Drug Co-Operative, Inc., a direct purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On August 1, 2013, Plaintiff International Union of Operating Engineers Local 132 Health and Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Northern District of California on behalf of itself and others similarly situated. On August 29, 2013, this Plaintiff withdrew its complaint from the United States District Court for the Northern District of California, and on August 30, 2013, re-filed the same complaint in the United States Court for the Eastern District of Pennsylvania, on behalf of itself and others similarly situated. On August 9, 2013, Plaintiff Local 274 Health & Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On August 12, 2013, Plaintiff Sheet Metal Workers Local No. 25 Health & Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On August 27, 2013, Plaintiff Fraternal Order of Police, Fort Lauderdale Lodge 31, Insurance Trust Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On August 29, 2013, Plaintiff Heather Morgan, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On August 30, 2013, Plaintiff Plumbers & Pipefitters Local 178 Health & Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On September 9, 2013, Plaintiff Ahold USA, Inc., a direct purchaser, filed a class action complaint in the United States District Court for the District of Massachusetts on behalf of itself and others similarly situated. On September 24, 2013, Plaintiff City of Providence, Rhode Island, an indirect purchaser, filed a class action complaint in the United States District Court for the District of Arizona on behalf of itself and others similarly situated. On October 2, 2013, Plaintiff International Union of Operating Engineers Stationary Engineers Local 39 Health & Welfare Trust Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the District of Massachusetts on behalf of itself and others similarly situated. On October 7, 2013, Painters District Council No. 30 Health and Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the District of Massachusetts on behalf of itself and others similarly situated. On October 25, 2013, Plaintiff Man-U Service Contract Trust Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On March 13, 2014, Plaintiff Allied Services Division Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the District of Massachusetts on behalf of itself and others similarly situated. On March 19, 2014, Plaintiff NECA-IBEW Welfare Trust Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the District of Massachusetts on behalf of itself and others similarly situated. On February 25, 2014, the United States Judicial Panel on Multidistrict Litigation ordered the pending actions transferred to the District of Massachusetts for coordinated pretrial proceedings, as In Re Solodyn (Minocycline Hydrochloride) Antitrust Litigation. On March 26, 2015, Walgreen Co., The Kruger Co., Safeway Inc., HEB Grocery Company L.P., Albertson's LLC, direct purchasers, filed a separate complaint in the United States District Court for the Middle District of Pennsylvania. On April 8, 2015, the Judicial Panel on Multi-District Litigation ordered the action be transferred to the District of Massachusetts, to be coordinated or consolidated with the coordinated proceedings. The original complaint filed by the plaintiffs asserted claims only against defendant Medicis. On October 5, 2015, the plaintiffs filed an amended complaint asserting claims against the Company and the other generic defendants. On April 16, 2015, Rite Aid Corporation and Rite Aid Hdqtrs. Corp, direct purchasers, filed a separate complaint in the United States District Court for the Middle District of Pennsylvania. On May 1, 2015, the Judicial Panel on Multi-District Litigation ordered the action be transferred to the District of Massachusetts, to be coordinated or consolidated with the coordinated proceedings. The original complaint filed by the plaintiffs asserted claims only against defendant Medicis. On October 5, 2015, the plaintiffs filed an amended complaint asserting claims against the Company and the other generic defendants. On January 25, 2016, CVS Pharmacy, Inc., a direct purchaser, filed a separate complaint in the United States District Court for the Middle District of Pennsylvania. On February 11, 2016, the Judicial Panel on Multi-District Litigation ordered the action to be transferred to the District of Massachusetts to be coordinated or consolidated with the coordinated proceedings. The consolidated amended complaints allege that Medicis engaged in anticompetitive schemes by, among other things, filing frivolous patent litigation lawsuits, submitting frivolous Citizen Petitions, and entering into anticompetitive settlement agreements with several generic manufacturers, including the Company, to delay generic competition of Solodyn(R) and in violation of state and federal antitrust laws. Plaintiffs seek, among other things, unspecified monetary damages and equitable relief, including disgorgement and restitution. On August 14, 2015, the Court granted in part and denied in part defendants' motion to dismiss the consolidated amended complaints. Discovery is ongoing. Trial is set for March 22, 2018. Impax is a specialty pharmaceutical company applying formulation and development expertise, as well as our drug delivery technology, to the development, manufacture and marketing of bioequivalent pharmaceutical products, commonly referred to as "generics," in addition to the development, manufacture and marketing of branded products. IMPAX LABORATORIES: Discovery Underway in Opana ER Antitrust Suit ----------------------------------------------------------------- Impax Laboratories, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on March 1, 2017, for the fiscal year ended December 31, 2016, that discovery is ongoing in the Opana ER(R) Antitrust Class Actions and no trial has been scheduled. From June 2014 to April 2015, 14 complaints were filed as class actions on behalf of direct and end-payor (indirect) purchasers, as well as by certain direct purchasers, against the manufacturer of the brand drug Opana ER(R) and the Company. On June 4, 2014, Plaintiff Fraternal Order of Police, Miami Lodge 20, Insurance Trust Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On June 4, 2014, Plaintiff Rochester Drug Co-Operative, Inc., a direct purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On June 6, 2014, Plaintiff Value Drug Company, a direct purchaser, filed a class action complaint in the United States District Court for the Northern District of California on behalf of itself and others similarly situated. On June 26, 2014, this Plaintiff withdrew its complaint from the United States District Court for the Northern District of California, and on July 16, 2014, re- filed the same complaint in the United States District Court for the Northern District of Illinois, on behalf of itself and others similarly situated. On June 19, 2014, Plaintiff Wisconsin Masons' Health Care Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Northern District of Illinois on behalf of itself and others similarly situated. On July 17, 2014, Plaintiff Massachusetts Bricklayers, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On August 11, 2014, Plaintiff Pennsylvania Employees Benefit Trust Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Northern District of Illinois on behalf of itself and others similarly situated. On September 19, 2014, Plaintiff Meijer Inc., a direct purchaser, filed a class action complaint in the United States District Court for the Northern District of Illinois on behalf of itself and others similarly situated. On October 3, 2014, Plaintiff International Union of Operating Engineers, Local 138 Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Northern District of Illinois on behalf of itself and others similarly situated. On November 17, 2014, Louisiana Health Service & Indemnity Company d/b/a Blue Cross and Blue Shield of Louisiana, an indirect purchaser, filed a class action complaint in the United States District Court for the Middle District of Louisiana on behalf of itself and others similarly situated. On December 19, 2014, Plaintiff Kim Mahaffay, an indirect purchaser, filed a class action complaint in the Superior Court of the State of California, Alameda County, on behalf of herself and others similarly situated. On January 27, 2015, the Defendants removed the action to the United States District Court for the Northern District of California. On January 12, 2015, Plaintiff Plumbers & Pipefitters Local 178 Health & Welfare Trust Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Northern District of Illinois on behalf of itself and others similarly situated. On December 12, 2014, the United States Judicial Panel on Multidistrict Litigation ordered the pending actions transferred to the Northern District of Illinois for coordinated pretrial proceedings, as In Re Opana ER Antitrust Litigation. On March 26, 2015 Walgreen Co., The Kruger Co., Safeway Inc., HEB Grocery Company L.P., Albertson's LLC, direct purchasers, filed a separate complaint in the United States District Court for the Northern District of Illinois. On April 23, 2015, Rite Aid Corporation and Rite Aid Hdqtrs. Corp, direct purchasers, filed a separate complaint in the United States District Court for the Northern District of Illinois. In each case, the complaints allege that Endo engaged in an anticompetitive scheme by, among other things, entering into an anticompetitive settlement agreement with the Company to delay generic competition of Opana ER(R) and in violation of state and federal antitrust laws. Plaintiffs seek, among other things, unspecified monetary damages and equitable relief, including disgorgement and restitution. Consolidated amended complaints were filed on May 4, 2015 by direct purchaser plaintiffs and end-payor (indirect) purchaser plaintiffs. On July 3, 2015, defendants filed motions to dismiss the consolidated amended complaints, as well as the complaints of the "Opt-Out Plaintiffs" (Walgreen Co., The Kruger Co., Safeway Inc., HEB Grocery Company L.P., Albertson's LLC, Rite Aid Corporation and Rite Aid Hdqtrs. Corp.). On February 1, 2016, CVS Pharmacy, Inc. filed a complaint in the United States District Court for the Northern District of Illinois. The parties agreed that CVS Pharmacy, Inc. would be bound by the court's ruling on the defendants' motion to dismiss the Opt-Out Plaintiffs' complaints. On February 10, 2016, the court granted in part and denied in part defendants' motion to dismiss the end-payor purchaser plaintiffs' consolidated amended complaint, and denied defendants' motion to dismiss the direct purchaser plaintiffs' consolidated amended complaint. The end-payor purchaser plaintiffs have filed a second consolidated amended complaint and the Company has moved to dismiss certain state law claims. On February 25, 2016, the court granted defendants' motion to dismiss the Opt-Out Plaintiffs' complaints, with leave to amend. The Opt-Out Plaintiffs and CVS Pharmacy, Inc. have filed amended complaints and the Company has filed its answer. Impax is a specialty pharmaceutical company applying formulation and development expertise, as well as our drug delivery technology, to the development, manufacture and marketing of bioequivalent pharmaceutical products, commonly referred to as "generics," in addition to the development, manufacture and marketing of branded products. IMPAX LABORATORIES: Motion to Dismiss Plumbers' Suit Underway ------------------------------------------------------------- Impax Laboratories, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on March 1, 2017, for the fiscal year ended December 31, 2016, that defendants' joint motion to dismiss the complaint in the case filed by Plumbers' Local Union No. 690 Health Plan remains pending. On December 30, 2015, Plumbers' Local Union No. 690 Health Plan and others similarly situated filed a class action against several generic drug manufacturers, including the Company, in the Court of Common Pleas of Philadelphia County, First Judicial District of Pennsylvania, Civil Trial Division, alleging that the Company and others violated the law, including the Pennsylvania Unfair Trade Practices and Consumer Protection law, by inflating the Average Wholesale Price ("AWP") of certain generic drugs. The case has since been removed to federal court in the United States District Court for the Eastern District of Pennsylvania. By virtue of an amended complaint filed on March 29, 2016, the suit has been amended to comprise a nationwide class of third party payors that allegedly reimbursed or purchased certain generic drugs based on AWP and to assert causes of action under the laws of other states in addition to Pennsylvania. On May 17, 2016, this case was stayed. On January 18, 2017, the Company, along with the other defendants, filed a joint motion to dismiss the complaint. On February 5, 2016, Delaware Valley Health Care Coalition filed a lawsuit based on substantially similar allegations in the Court of Common Pleas of Philadelphia County, First Judicial District of Pennsylvania, Civil Trial Division that seeks declaratory judgment. On May 20, 2016, this case was stayed pending resolution of the federal court action. Impax is a specialty pharmaceutical company applying formulation and development expertise, as well as our drug delivery technology, to the development, manufacture and marketing of bioequivalent pharmaceutical products, commonly referred to as "generics," in addition to the development, manufacture and marketing of branded products. IMPAX LABORATORIES: 2 Junk Fax Suit Pending in Alabama ------------------------------------------------------ Impax Laboratories, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on March 1, 2017, for the fiscal year ended December 31, 2016, that on January 31, 2017, Plaintiff Family Medicine Pharmacy LLC filed a class action complaint in the United States District Court for the Southern District of Alabama on behalf of itself and others similarly situated against the Company alleging violation of the Telephone Consumer Protection Act, as amended by the Junk Fax Prevention Act of 2005 (the "Telephone Consumer Protection Act"). On February 14, 2017, Plaintiff Medicine To Go Pharmacies, Inc. filed a class action complaint in the United States District Court for the District of New Jersey on behalf of itself and others similarly situated against the Company alleging violation of the Telephone Consumer Protection Act. Impax is a specialty pharmaceutical company applying formulation and development expertise, as well as our drug delivery technology, to the development, manufacture and marketing of bioequivalent pharmaceutical products, commonly referred to as "generics," in addition to the development, manufacture and marketing of branded products. INTERNATIONAL PAPER: Flooding Suit Obtains Class Action Status -------------------------------------------------------------- Emma Kennedy, writing for Pensacola News Journal, reports that a judge has granted class action status to a lawsuit filed by Cantonment residents against International Paper Co. over flooding in 2014. The lawsuit stems from claims that residents in the Bristol Park, Bristol Woods, Bristol Creek and Ashbury Hills neighborhoods were inundated with excessive floodwaters during the April 29, 2014, storm that damaged much of Escambia and Santa Rosa counties. The plaintiffs claim IP failed to remediate an unused dam that burst during the storms and caused widespread damage in the neighborhoods, according to court filings. IP spokeswoman Janice Holmes said the company's policy is to not comment on ongoing litigation. The plaintiffs' lead attorney, James Kauffman with Washington, D.C., firm Bailey and Glasser, said neither he nor his plaintiffs had comments on the proceedings. The most recent court filings in the case show that Judge M. Casey Rodgers approved class status certification in late March, meaning the case is now considered class action. Lawyers for IP filed a motion asking the court to reconsider. Class action lawsuits allow a group of plaintiffs with similar complaints to sue the defendant as a single group. The plaintiffs' claims center on the Kingsfield Road Dam, which court documents show sits on IP property. The documents state the company stopped using the dam in 2012 and instead routed wastewater through a pipeline to wetlands around Perdido Bay. The plaintiffs claim the company failed to maintain the dam after it discontinued using it. During flooding in 2014, the dam overflowed and burst, rushing water into Elevenmile Creek and around homes in the plaintiffs' neighborhoods, which are about 2 miles downstream. Eight plaintiffs are named in court filings, but the affected area includes 317 homes that could be brought into the lawsuit under a class action case, according to testimony from one of the plaintiffs' expert witnesses, a property appraiser in the area. The order making the suit class action came after a three-day hearing in which both sides presented expert testimony and evidence related to the case. IP took issue with the class ruling on the basis that each plaintiff's issues were different, saying one ruling would not encompass all of the issues. The company's attorneys also claim there is no way to prove the dam breaking caused the damage to the homes since much of the rest of the county also sustained damages in what the Federal Emergency Management Agency has called a 500-year flood. INTERNATIONAL PAPER: Must Face Price-Fixing Class Action -------------------------------------------------------- Andrew Chung, writing for Reuters, reports that the U.S. Supreme Court on April 17 declined to halt a class action lawsuit against several containerboard manufacturers, which could now face trial on claims of price fixing by tens of thousands of buyers and nearly $12 billion in potential damages. The justices left in place a federal judge's certification of the antitrust class action against manufacturers including International Paper Co, Weyerhaeuser Co, and Georgia-Pacific LLC. The companies argued that individually negotiated pricing regimes with the buyers should preclude class action certification. The defendants make containerboard, a heavy stock paper used to produce a variety of cardboard products, from shipping containers to takeout pizza boxes. Several containerboard or cardboard product buyers, including Minnesota-based floor care product maker Kleen Products LLC, filed suit in Chicago federal court in 2010 alleging the manufacturers violated U.S. antitrust law. J2 GLOBAL: Class Certification Bid in Paldo Suit Underway --------------------------------------------------------- j2 Global, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on March 1, 2017, for the fiscal year ended December 31, 2016, that the Northern District of Illinois has not yet addressed class certification in the lawsuit by Paldo Sign and Display Co. On January 18, 2013, Paldo Sign and Display Co. filed an amended complaint adding two j2 Global affiliates and a former employee as additional defendants in an existing putative class action pending in the U.S. District Court for the Northern District of Illinois (the "Northern District of Illinois") (No. 1:13-cv-01896). The amended complaint alleged violations of the TCPA, the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA"), and common law conversion, arising from an indirect customer's alleged use of a j2 Global affiliate's systems to send unsolicited facsimile transmissions. The j2 Global affiliates filed a motion to dismiss the ICFA and conversion claims, which was granted. The Northern District of Illinois also dismissed the former employee for lack of personal jurisdiction. On August 23, 2013, a second plaintiff, Sabon, Inc. was added. On March 7, 2016, the j2 Global affiliates moved for summary judgment on all remaining claims. The summary judgment motions are pending. The Northern District of Illinois has not yet addressed class certification. j2 Global, Inc., together with its subsidiaries, is a provider of Internet services. J2 GLOBAL: Appeal in Multi-District Litigation Underway ------------------------------------------------------- j2 Global, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on March 1, 2017, for the fiscal year ended December 31, 2016, that the appeal in a multi- district litigation pending in the Northern District of Illinois remains pending. On October 16, 2013, a j2 Global affiliate entered an appearance as a plaintiff in a multi-district litigation pending in the Northern District of Illinois (No. 1:12-cv-06286). In this litigation, Unified Messaging Solutions, LLC ("UMS"), a company with rights to assert certain patents owned by the j2 Global affiliate, has asserted five j2 Global patents against a number of defendants. While claims against some defendants have been settled, other defendants have filed counterclaims for, among other things, non-infringement, unenforceability, and invalidity of the patents-in-suit. On December 20, 2013, the Northern District of Illinois issued a claim construction opinion and, on June 13, 2014, entered a final judgment of non-infringement for the remaining defendants based on that claim construction. UMS and the j2 Global affiliate filed a notice of appeal to the Federal Circuit on June 27, 2014 (No. 14- 1611). The appeal is pending. j2 Global, Inc., together with its subsidiaries, is a provider of Internet services. J2 GLOBAL: Final Class Action Settlement Approval Pending --------------------------------------------------------- j2 Global, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on March 1, 2017, for the fiscal year ended December 31, 2016, that the Los Angeles court will consider final approval of a class action settlement in early 2017. On June 23, 2014, Andre Free-Vychine ("Free-Vychine") filed a putative class action against two j2 Global affiliates in the Superior Court for the State of California, County of Los Angeles ("Los Angeles Superior Court") (No. BC549422). The complaint alleged two California statutory violations relating to late fees levied in certain eVoice(R) accounts. Free-Vychine sought, among other things, damages and injunctive relief on behalf of himself and a purported nationwide class of similarly situated persons. On August 26, 2014, Law Enforcement Officers, Inc. ("LEO") and IV Pit Stop, Inc. ("IV Pit Stop") filed a separate putative class action against the same j2 Global affiliates in Los Angeles Superior Court (No. BC555721). The complaint alleged three California statutory violations, negligence, breach of the implied covenant of good faith and fair dealing, and various other common law claims relating to late fees levied on any of the j2 Global affiliates' customers, including those with eVoice(R) and Onebox(R) accounts. LEO and IV Pit Stop sought, among other things, damages and injunctive relief on behalf of themselves and a purported nationwide class of similarly situated persons. On September 29, 2014, the Los Angeles Superior Court related and consolidated both cases for discovery purposes. On March 13, 2015, a third amended complaint was filed in the case brought by LEO, which no longer included IV Pit Stop as a plaintiff but added Christopher Dancel ("Dancel") as a plaintiff. On June 26, 2015, the case filed by Free-Vychine was dismissed pursuant to a settlement agreement. On October 7, 2015, the parties in the case brought by LEO and Dancel reached a tentative class-based settlement. On September 12, 2016, the Los Angeles Superior Court certified the class for settlement purposes only and provided its preliminary approval of the settlement. The court will consider final approval of the settlement in early 2017. j2 Global, Inc., together with its subsidiaries, is a provider of Internet services. J2 GLOBAL: Motion for Judgment on Pleadings Pending --------------------------------------------------- j2 Global, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on March 1, 2017, for the fiscal year ended December 31, 2016, that the motion for judgment on the pleadings in the lawsuit by Davis Neurology, P.A. is fully briefed and pending before the court. On January 21, 2016, Davis Neurology, P.A. filed a putative class action against two j2 Global affiliates in the Circuit Court for the County of Pope, State of Arkansas (58-cv-2016-40), alleging violations of the TCPA. The case was ultimately removed to the U.S. District Court for the Eastern District of Arkansas (No. 4:16-cv-00682). On June 6, 2016, the j2 Global affiliates filed a motion for judgment on the pleadings. That motion is fully briefed and pending before the court. j2 Global, Inc., together with its subsidiaries, is a provider of Internet services. JPMORGAN CHASE: 2nd Circuit Reinstates Claims in Investors' Case ---------------------------------------------------------------- William Gorta, writing for Law360, reports that investors asked the Second Circuit to reinstate class allegations on April 18 that JPMorgan Chase & Co. employees aided and abetted Bernie Madoff's Ponzi scheme, saying even though the investors were net winners in the fraud, they had legitimate claims that were not time-barred. U.S. District Judge John G. Koeltl had tossed the 2014 proposed class action by Richard Friedman and Carla Hirschorn in May 2016, saying their claims were barred under a five-year statute of repose that expired in December 2013. The investors said at a hearing on April 18 that JPMorgan turned a blind eye to Madoff's shenanigans and instead of shutting Madoff down, joined in for its own enrichment. Lance Gotthoffer of Chaitman LLP told the three-judge panel that JPMorgan was "one of the few profiteers" in Madoff's massive swindle, saying there was a "20-year criminal alliance between America's largest bank and America's largest crook." "JPMorgan profited greatly from the amounts of money Madoff and his collaborators kept in the bank, and JPMorgan actually took steps to further what Madoff was doing, and Madoff made statements publicly that senior people at JPMC knew exactly what he, Madoff, was doing," Mr. Gotthoffer said. "If you look at all the facts, there is a control relationship between JPMorgan, which was Madoff's lender, Madoff's clearinghouse . . . We sought to hold JPMorgan liable as a control person." When asked whether the lower court tossed the claims because the plaintiffs were net winners, Mr. Gotthoffer said the case was not dismissed on damages grounds since his clients still had valid claims -- although subordinate to those of net losers -- to payments for loss of beneficial use of their money. John F. Savarese -- JFSavarese@wlrk.com -- of Wachtell Lipton Rosen & Katz, arguing for JPMorgan, told the panel that there is no allegation JPMorgan "somehow directed the fraud or ran the fraud" or any federal claim. Mr. Savarese said the untimely complaint seeks damages based on numbers that were recorded on account statements from Madoff invented to convince clients they were making money. Mr. Savarese said that an earlier class action based only on actual losses put the plaintiffs on notice in 2010 or 2011 that they were not similarly situated to the net-loser class. "What my friend [Gotthoffer] is trying to do is give legal force and effect, and indeed to insist that JPMorgan must give legal force and effect, to completely made-up numbers that were arbitrarily and fictitiously invented by Madoff," Mr. Savarese said. An operative complaint, lodged in New Jersey federal court in October 2014, claims JPMorgan "deliberately turned a blind eye to Madoff's and [his defunct brokerage's] crimes and, instead of shutting Madoff down in the early 1990s . . . made the institutional decision, for its own enrichment, to join in Madoff's crimes." The 10-count suit includes claims for securities law violations, embezzlement, negligence, breach of fiduciary duty, and racketeering under federal and New Jersey law. The complaint names bank executive John Hogan and retired client relationship manager Richard Cassa as individual defendants alongside JPMorgan. U.S. District Judge Susan D. Wigenton affirmed a magistratical ruling that "the bulk" of the many-headed Madoff legal controversy took place in New York, and granted JPMorgan's request to transfer the suit. In its motion to change venue, the bank characterized the plaintiff investors as "net winners" in the Madoff fiasco who "already profited from the fraud and are now seeking to recover additional fake profits that they claim they are owed." The bank also argued the investors had filed in New Jersey to avoid Second Circuit precedent that would bar their suit. In September 2015, the bank moved to dismiss the suit, doubling down on its arguments that the investors were seeking to recover more fake profits and that there was an "array" of Second Circuit decisions holding the claims are governed by the Exchange Act's statute of repose, which cannot be tolled, making the claims are time-barred. In their opposition, the investors argued that the judge should instead look to Third Circuit precedent and allow tolling of the statute of repose under the 1974 U.S. Supreme Court ruling in American Pipe & Construction Co. v. Utah. Judge Koeltl sided with the bank, ruling that the court was not obligated to apply the law of the filing court when it comes to federal claims. Arguments in the Second Circuit began about an hour on April 18, after an evacuation sent attorneys, judges, staff and spectators tramping down the fire stairs and outside to mill about in sun- filled Foley Square for 20 minutes or so. The district executive told Law360 that the evacuation was a fire drill. The Fire Department City of New York confirmed there were no calls to the building on April 18. Counsel for JPMorgan declined to comment outside court. Mr. Gotthoffer, representing the investors, said simply, "We shall see." U.S. Circuit Judges Rosemary S. Pooler, Richard C. Wesley and Susan L. Carney sat on the panel for the Second Circuit. The investors are represented by Helen Davis Chaitman and Lance Gotthoffer of Chaitman LLP. JPMorgan is represented by John F. Savarese, Stephen R. DiPrima -- SRDiPrima@wlrk.com -- Emil A. Kleinhaus -- EAKleinhaus@WLRK.com -- and Noah B. Yavitz of Wachtell Lipton Rosen & Katz. The case is Friedman et al. v. JPMorgan Chase & Co. et al., case number 16-1913, in the U.S. Court of Appeals for the Second Circuit. JPMORGAN CHASE: Judge Grants Class Certification in 401(k) Suit --------------------------------------------------------------- Dena Aubin, writing for Reuters, reports that a federal judge in Manhattan has granted class certification to a lawsuit by JPMorgan Chase & Co employees accusing the bank of breaching its duties by mismanaging workers' 401(k) retirement funds. In a decision posted on April 17, U.S. District Judge Vernon Broderick said plaintiffs have shown that a class action would be superior to individual lawsuits and that essential questions in the case can be resolved on a group basis. LANNETT COMPANY: Faces FWK Holdings Suit in E.D. Pennsylvania ------------------------------------------------------------- A class action lawsuit has been commenced against Lannett Company, Inc., Mylan Pharmaceuticals Inc., Sandoz, Inc., and Novartis AG. The case is captioned FWK Holdings, L.L.C., 1199SEIU National Benefit Fund, American Federation Of State, County And Municipal Employees District Council 37 Health & Security Plan, Cesar Castillo, Inc., Plumbers & Pipefitters Local 178 Health & Welfare Trust Fund, and Cesar Castillo, Inc., on behalf of itself and all others similarly situated v. Lannett Company, Inc., Mylan Pharmaceuticals Inc., Sandoz, Inc., and Novartis AG, Case No. 2:17-cv-01665-CMR (E.D. Penn., April 12, 2017). The Defendants own and operate a pharmaceutical company in the United States. [BN] The Plaintiff FWK Holdings, L.L.C.is represented by: David P. Germaine, Esq. Joseph M. Vanek, Esq. VANEK VICKERS & MASINI PC 55 West Monroe St Ste 3500 Chicago, IL 60603 Telephone: (312) 224-1500 Facsimile: (312) 224-1510 E-mail: dgermaine@vaneklaw.com jvanek@vaneklaw.com - and - David S. Nalven, Esq. HAGENS BERMAN SOBOL SHAPIRO LLP One Main Street 4th Fl. Cambridge, MA 02142 Telephone: (617) 482-3700 E-mail: davidn@hbsslaw.com - and - Hae Sung Nam, Esq. Joshua Saltzman, Esq. Richard J. Kilsheimer, Esq. Robert N. Kaplan, Esq. KAPLAN FOX & KILSHEIMER, LLP 850 Third Avenue, 14th Floor New York, NY 10022 Telephone: (212) 687-1980 E-mail: hnam@kaplanfox.com jsaltzman@kaplanfox.com rkilsheimer@kaplanfox.com rkaplan@kaplanfox.com - and - Jeffrey Campisi, Esq. SHARKEY & CAMPISI 188 Eagle Rock Ave., P.O. Box 419 Roseland, NJ 07068 Plaintiffs 1199seiu National Benefit Fund; American Federation of State, County And Municipal Employees District Council 37 Health & Security Plan; Plumbers & Pipefitters Local 178 Health & Welfare Trust Fund are pro se plaintiffs. The Plaintiff Cesar Castillo, Inc. is represented by: Linda P. Nussbaum, Esq. NUSSBAUM LAW GROUP PC 1211 Avenue of the Americas, 40th Floor New York, NY 10036 Telephone: (917) 438-9189 E-mail: lnussbaum@nussbaumpc.com The Defendant Lannett Company, Inc. is represented by: Gerald E. Arth, Esq. Ryan T. Becker, Esq. FOX ROTHSCHILD O'BRIEN & FRANKEL LLP 2000 Market St., 10th Fl. Philadelphia, PA 19103-3291 Telephone: (215) 299-2000 Facsimile: (215) 299-2150 E-mail: garth@foxrothschild.com rbecker@foxrothschild.com - and - Chul Pak, Esq. Jeffrey C. Bank, Esq. WILSON SONSINI GOODRICH & ROSATI PC 1301 Ave of Americas 40th Fl. New York, NY 10019-6022 Telephone: (212) 999-5800 E-mail: cpak@wsgr.com jbank@wsgr.com The Defendant Sandoz, Inc. is represented by: Laura S. Shores, Esq. ARNOLD & PORTER KAYE SCHOLER LLP 601 Massachusetts Avenue, NW Washington, DC 20001 Telephone: (202) 942-5000 E-mail: laura.shores@apks.com - and - Margaret A. Rogers, Esq. Saul P. Morgenstern, Esq. ARNOLD & PORTER KAYE SCHOLER LLP 250 West 55th Street New York, NY 10019 Telephone: (212) 836-7830 E-mail: margaret.rogers@apks.com saul.morgenstern@apks.com LAMI AEROSPACE: Faces "Benchabane" Suit Over Sale to Sonaca ----------------------------------------------------------- Madjid Benchabane, individually and on behalf of all others similarly situated, Plaintiff v. Lami Aerospace, Inc., et al., Defendants, Case No. 4:17-cv-01100 (E.D. Mo., March 27, 2017) is brought against the Defendant for violation of the Securities Exchange Act arising out of the Board's attempt to sell the Company to Sonaca S.A. through its subsidiaries Sonaca USA Inc. The complaint says Defendants' acts were flawed because (1) LMI's actual enterprise value was much higher than the final agreed upon $14.00 per share; (2) conflicts of interest infested the Board's deliberations; (3) Defendant Daniel G. Korte orchestrated the entire transaction with Bernard Delvaux and then recused himself to try to dispel the appearance of impropriety; (4) the hollow go- shop period was designed to be and was purposefully ineffective. Defendant Daniel G. Korte ("Korte") has served as a Director of the Company since August 2014 and had originally joined the Company as Chief Executive Officer in March 2014. Bernard Devlaux is the representative of Sonaca S.A. Hollow go-shop period is a "No Solicitation" provision barring the Board and any Company personnel from attempting to procure a price in excess of the amount offered by Sonaca, after the ending of the thirty day go-shop period. LMI Aerospace, Inc., headquartered in St. Charles, Missouri, is a supplier of structural assemblies, kits, and components and a provider of design engineering services for the aerospace and defense markets. [BN] The Plaintiff is represented by: James J. Rosemergy, Esq. Carey, Danis & Lowe 8235 Forsyth Blvd., Suite 1100 St. Louis, MO 63105 Tel: (314) 678-1064 Fax: (314) 721-0905 Email: jrosemergy@careydanis.com - and - Shane T. Rowley, Esq. Stephanie A. Bartone, Esq. Levi & Korsinsky LLP 733 Summer Street, Suite 304 Stamford, CT 06901 Tel: (212) 363-7500 Fax: (212) 363-7171 LION BIOTECHNOLOGIES: Faces Securities Class Action --------------------------------------------------- Goldberg Law PC, a national shareholder rights litigation firm, on April 18 announced the filing of a class action lawsuit against Lion Biotechnologies, Inc. ("Lion Biotechnologies" or the "Company") (LBIO). Investors who purchased the Company's shares between November 14, 2013 and April 10, 2017 inclusive (the "Class Period") are encouraged to contact the firm in advance of the June 13, 2017 lead plaintiff motion deadline. If you are a shareholder who suffered a loss during the Class Period, click https://is.gd/BfA0ZT to participate. In addition, we encourage you to contact Michael Goldberg or Brian Schall, of Goldberg Law PC, 1999 Avenue of the Stars, Suite 1100, Los Angeles, CA 90067, at 800-977-7401, to discuss your rights free of charge. You can also reach us through the firm's website at http://www.goldberglawpc.com/,or by email at info@goldberglawpc.com. The class in this case has not yet been certified, and until certification occurs, you are not represented by an attorney. If you choose to take no action, you can remain an absent class member. The Complaint alleges that during the Class Period, Lion Biotechnologies violated federal securities laws by making materially false and misleading public statements. On April 10, 2017, the U.S. Securities and Exchange Commission found that between September 2013 and March 2014, the Company's former CEO, Manish Singh, misled investors by commissioning over 10 internet publications and 20 widely distributed emails promoting Lion Biotechnologies to potential investors that purported to be independent from the Company, when they were actually paid promotions. When this news was announced to the public, the stock price of Lion Biotechnologies dropped, causing investors harm. Goldberg Law PC represents shareholders around the world and specializes in securities class actions and shareholder rights litigation. MAJOR LEAGUE: Players' Attorneys Want Antitrust Exemption Nixed --------------------------------------------------------------- Courthouse News Service reports that a panel of Ninth Circuit judges on April 18 appeared unwilling to reject Supreme Court precedent deeming Major League Baseball exempt from antitrust laws, despite arguments that the exemption is based on a lie. Fighting the dismissal of a suit alleging a conspiracy to fix Minor League players' pay, attorney Samuel Kornhauser argued the judicial branch's invented antitrust exemption for baseball is based on the false premise that the league is not engaged in interstate commerce. "It's not 1922 when baseball was struggling," Mr. Kornhauser told three Ninth Circuit judges on April 18. "We are not bound by that decision if circumstances have changed." Mr. Kornhauser was referring to the 1922 Supreme Court ruling, Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs, which declared professional baseball exempt from the Sherman Antitrust Act. Subsequent Supreme Court rulings blindly followed that precedent despite its obvious flaws, Mr. Kornhauser argued, adding the Sherman Antitrust Act contains no specific carve-out for baseball, as it did for labor unions, farm coops and insurance. "How are we not constrained by that?" U.S. Circuit Judge Mary Murguia asked, referring to high court rulings upholding the exemption. "The Supreme Court decision saying otherwise is not to be recognized?" Mr. Kornhauser replied by quoting 18th-century British Justice William Blackstone, a historian of common law, who wrote judges should not uphold precedential rulings that are "most evidently contrary to reason" when the prior decisions are "manifestly absurd or unjust." Mr. Kornhauser represents a class of Minor League players looking to overturn a 2015 ruling dismissing their antitrust class action against MLB team owners and Commissioner Bud Selig. Lead plaintiff Sergio Miranda sued MLB in December 2014, claiming the teams conspire to suppress Minor League players' pay and restrict their ability to work for other teams in violation of antitrust laws. Representing MLB and its clubs, attorney John Keker -- jkeker@keker.com -- of Keker & Van Nest said U.S. District Judge Haywood Gilliam got it right when he dismissed the class action in September 2015. "There is no reasonable dispute that the antitrust exemption applies to the business of baseball," Mr. Keker said. In his 2015 ruling, Judge Gilliam acknowledged the Minor Leaguers' persuasive argument that MLB teams "should not be afforded carte blanche to restrict the pay and mobility of Minor League players," but he found only Congress and the Supreme Court possess the power to alter baseball's "singular and historic exemption from antitrust laws." Judge Gilliam also concluded that he was bound by the Ninth Circuit's January 2015 ruling in City of San Jose v. Comm'r of Baseball, which held the antitrust exemption applies broadly to the "business of providing public baseball games for profit between clubs of professional baseball players." Mr. Kornhauser contended that case involved a separate issue -- the attempted relocation of the Oakland A's -- and did not address uniform player contracts that suppress Minor League players' wages and limit their mobility. The class attorney cited massive profits for MLB team owners as evidence of the league's unfair practices. It earned nearly $10 billion in revenue in 2016, and each of its 30 teams was valued on average at $744 million in 2013, according to Forbes. "You don't need to protect billionaires when you've got tens of thousands of Minor League baseball players living on $3,000 a year," Mr. Kornhauser said. The average Major League player earns more than $4 million per year, according to a 2015 study by the Associated Press. Meanwhile, most Minor Leaguers earn $3,000 to $7,500 annually and receive no overtime pay, despite routinely working 50 to 75 hours a week during the five-month championship season, according to Miranda's class action complaint. Responding to Mr. Kornhauser's contention that no Supreme Court ruling has explicitly dealt with the issue of Minor League players, Chief Ninth Circuit Judge Sidney Thomas asked, "Why aren't those activities part of the game of baseball?" Mr. Kornhauser cited a 2014 ruling from the Southern District of New York, Laumann v. National Hockey League, which held that because broadcasting games on TV is an interstate industry by nature, it falls outside of baseball's antitrust exemption. In his brief, Mr. Kornhauser called that ruling an example of how some courts "continue to nibble away at the supposed all- encompassing business of baseball exemption." "The Federal Baseball decision was the wrong law," Mr. Kornhauser concluded. "There's not a single word saying 'baseball' in the Sherman Antitrust Act." The three circuit judges -- Thomas, Murguia and Ferdinand Fernandez -- took the arguments under submission, giving no signal of their willingness to deviate from Supreme Court precedent on baseball's antitrust exemption. MARINA ST VINCENT: Wirrina Cove Berth Owners Files Class Action --------------------------------------------------------------- Renato Castello, writing for The Advertiser, reports that Berth owners at the Wirrina Cove marina have launched a class action against its operator questioning the expenditure of more than $1 million and accusing its owner of using their money for "its own benefit". The District Court ordered the owner of the Marina St Vincent to submit new audited financial statements after about 30 berth owners lodged civil action claiming a breach of contract over alleged failings of the company to account for its spending. At the centre of their concerns -- lodged in a March 17 statement of claim sighted by The Advertiser -- is that controlling company New Wave Aerospace has used money for purposes "other than" operating and maintaining the marina as per the lease agreements. They also claim that it had not provided audited statements of its expenditure. Their claim catalogues $1.08 million in disputed expenditure, including $280,000 on marina dredging, $240,000 for "major works", $91,500 for landscaping, and $225,000 in management fees. "The defendant has had and received to its own use and benefit amounts paid by the plaintiffs as outgoings," the claim says. "The amounts were paid by the plaintiffs in the mistaken belief that the defendant would apply them to outgoings in accordance with the provisions of the underleases. "The outgoings collected by the defendant must be used for the purposes of the operation and maintenance of the marina and not for any other purpose. "The defendant has and continues to be in breach of its underleases and has evinced an unequivocal intention not to be bound by the underleases." The berth owners have long-term leases and pay a proportion of expenses based on the size of the berths. New Wave Aerospace took over management of the marina in September 2014 after the collapse of previous operator ICA (SA). It has no connection with the Wirrina Cove Resort, which is independently operated. Berth owners state that New Wave Aerospace "has not at any time" produced financial statements for the marina expenditure "which comply with accounting standards". Among remedies sought are an order for the release of all documents relating to Marina's operation for the past three financial years not including 2016/17, for New Wave Aerospace to pay back money it "wrongly received", damages for breach of contract and court costs. Head plaintiff Trevor Gadd and New Wave Aerospace director Steve Marks declined to comment. MAZDA MOTOR: Traffic Alerts in Cars Don't Work, Lewand Says ----------------------------------------------------------- Robert Kahn, writing for Courthouse News Service, reported that Mazda sells 2016 models with real-time, live traffic alerts that don't work, consumers claim in a federal class action in Santa Ana, Calif. The case is captioned, EDWARD LEWAND, individually and on behalf of all others similarly situated, Plaintiff, v. MAZDA MOTOR OF AMERICA, INC., a California corporation, Defendant. Case 8:17-cv- 00620(C.D. Cal., April 5, 2017). Counsel for Plaintiff and the Putative Class: Tina Wolfson, Esq. Bradley K. King, Esq. AHDOOT & WOLFSON, PC 1016 Palm Avenue West Hollywood, CA 90069 Tel: (310) 474-9111 Fax: (310) 474-8585 E-mail: twolfson@ahdootwolfson.com bking@ahdootwolfson.com MDL 2724: No Trial Yet in Generic Drug Pricing Antitrust Suit ------------------------------------------------------------- Impax Laboratories, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on March 1, 2017, for the fiscal year ended December 31, 2016, that no trial has been scheduled in the case, In re Generic Digoxin and Doxycycline Class Action. From March 2016 to October 2016, 21 complaints were filed as class actions on behalf of direct and indirect purchasers against manufacturers of generic digoxin and doxycycline and the Company alleging a conspiracy to fix, maintain and/or stabilize prices of these generic products. On March 2, 2016, Plaintiff International Union of Operating Engineers Local 30 Benefits Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. The plaintiff filed an amended complaint on June 9, 2016. On March 25, 2016, Plaintiff Tulsa Firefighters Health and Welfare Trust, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On March 25, 2016, Plaintiff NECA-IBEW Welfare Trust Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On April 4, 2016, Plaintiff Pipe Trade Services MN, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On April 25, 2016, Plaintiff Edward Carpinelli, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On April 27, 2016, Plaintiff Fraternal Order of Police, Miami Lodge 20, Insurance Trust Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On May 2, 2016, Plaintiff Nina Diamond, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On May 5, 2016, Plaintiff UFCW Local 1500 Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On May 6, 2016, Plaintiff Minnesota Laborers Health and Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On May 12, 2016, Plaintiff The City of Providence, Rhode Island, an indirect purchaser, filed a class action complaint in the United States District Court for the District of Rhode Island on behalf of itself and others similarly situated. On May 18, 2016, Plaintiff KPH Healthcare Services, Inc. a/k/a Kinney Drugs, Inc., a direct purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On May 19, 2016, Plaintiff Philadelphia Federation of Teachers Health and Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On June 8, 2016, Plaintiff United Food & Commercial Workers and Employers Arizona Health and Welfare Trust, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On June 17, 2016, Plaintiff Ottis McCrary, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On June 20, 2016, Plaintiff Rochester Drug Co-Operative, Inc., a direct purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On June 27, 2016, Plaintiff C‚sar Castillo Inc., a direct purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On June 29, 2016, Plaintiff Plumbers & Pipefitters Local 33 Health and Welfare Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On July 1, 2016, Plaintiff Plumbers & Pipefitters Local 178 Health and Welfare Trust Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On July 15, 2016, Plaintiff Ahold USA, Inc., a direct purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On September 7, 2016, Plaintiff United Here Health, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On September 20, 2016, Plaintiff Valerie Velardi, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated. On May 19, 2016, several indirect purchaser plaintiffs filed a motion with the Judicial Panel on Multidistrict Litigation to transfer and consolidate the actions in the United States District Court for the Eastern District of Pennsylvania. The Judicial Panel ordered the actions consolidated in the Eastern District of Pennsylvania and ordered that the actions be renamed "In re Generic Digoxin and Doxycycline Antitrust Litigation". On January 27, 2017, plaintiffs filed two consolidated class action complaints. With respect to doxycycline, the plaintiffs dropped their allegations against the Company. The Company's response to the digoxin class action complaint was due on March 28, 2017. No trial date has been scheduled. Impax is a specialty pharmaceutical company applying formulation and development expertise, as well as our drug delivery technology, to the development, manufacture and marketing of bioequivalent pharmaceutical products, commonly referred to as "generics," in addition to the development, manufacture and marketing of branded products. MDL 2724: Operating Engineers' Suit Consolidated for Pre-Trial -------------------------------------------------------------- In the case, INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 30 BENEFITS FUND v. IMPAX LABORATORIES, INC. et al., Case No. 2:17- cv-00205 (E.D. Pa.), the Hon. Cynthia M Rufe on April 10 entered Pretrial Order No. 12 that the cases, already assigned to this court's calendar, shall be made part of in re: Generic Pharmaceuticals Pricing Antitrust Litigation, 16-md-2724, for coordinated and consolidated pretrial proceedings. It is further ordered that, effective this date, all cases that are filed directly into the MDL pursuant to Pretrial Order No. 1 shall list on the civil cover sheet with the related case designation the generic drug(s) upon which suit is brought. Impax Laboratories, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on March 1, 2017, for the fiscal year ended December 31, 2016, that the Company is defending against the class action lawsuit captioned as, International Union of Operating Engineers Local 30 Benefits Fund v. Impax Laboratories, Inc. et al. On January 13, 2017, Plaintiff International Union of Operating Engineers Local 30 Benefits Fund, an indirect purchaser, filed a class action complaint in the United States District Court for the Eastern District of Pennsylvania on behalf of itself and others similarly situated against manufacturers of generic lidocaine/prilocaine and the Company alleging a conspiracy to fix, maintain and/or stabilize prices of this generic drug. Impax is a specialty pharmaceutical company applying formulation and development expertise, as well as our drug delivery technology, to the development, manufacture and marketing of bioequivalent pharmaceutical products, commonly referred to as "generics," in addition to the development, manufacture and marketing of branded products. MEMPHIS, TN: 6 More Victims Join Class Action Over Rape Kits Case ----------------------------------------------------------------- Jerry Askin, writing for WMC Action News 5, reports that six more rape victims have joined the class action lawsuit against City of Memphis over the backlog of rape kits. The Sexual Assault Task Force said progress is being made to end the backlog. "The whole thing has been a disaster, and the city needs to stop and recognize that these victims are hurting," attorney Daniel Lofton said. Lofton represents several rape victims still fighting for justice after more than 12,000 rape kits were left on shelves untested for years. He said there are now more than 40 women who have joined the class action lawsuit against the city for $10 million. He said more women are still considering joining the suit. "For each one of them, it's kind of a slap in the face to find out that hey, all this time, they've waited and they were kind of waiting for nothing," Lofton said. City leaders and advocates said progress is being made. "12,375 is what we started with, and of those so far, 62 percent have been to the lab," Deborah Clubb, Sexual Assault Task Force, said. That means the city still needs to ship off 625 rape kits to a lab for testing. Ms. Clubb said police and prosecutors have been meeting every week to discuss progress on the project. "With the DNA, police and prosecutors have been able to take 42 of these rapist to court," Ms. Clubb said. She said they're seeing numerous convictions. For example, Jacquet Moore was convicted in December for raping a woman 17 years ago. Lofton said he is working to try to have a hearing regarding the lawsuit sometime next month. MIDLAND STATES: Faces "Rader" Suit Over Centrue Acquisition ----------------------------------------------------------- Midland States Bancorp, Inc., is facing a putative class action lawsuit challenging its proposed acquisition of Centrue Financial Corporation, according to the Company's March 10, 2017, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2016. On January 26, 2017, the Company announced that it entered into a merger agreement with Centrue Financial Corporation, pursuant to which the Company has agreed to acquire Centrue and its banking subsidiary, Centrue Bank. Centrue, Midland, Merger Sub and the individual members of the Centrue board of directors have been named as defendants in a putative class action lawsuit filed by an alleged shareholder of Centrue in the Circuit Court of LaSalle County, Illinois: Rader v. Battles, et al., Case No. 17L16 (filed February 3, 2017). The complaint alleges, among other things, that the directors of Centrue breached their fiduciary duties in connection with entering into the merger agreement and that Centrue, Midland and Merger Sub aided and abetted those alleged fiduciary breaches. Plaintiffs claim, among other things, that Centrue's board of directors failed to ensure that Centrue's shareholders would receive maximum value for their shares, utilized preclusive corporate and deal protection terms to inhibit an alternate transaction and failed to conduct an appropriate sale process, and that Centrue's largest shareholder and its representative on Centrue's board of directors exerted undue influence to force a sale of Centrue at an unfair price. The action seeks a variety of equitable and injunctive relief including, among other things, enjoining the consummation of the merger, directing the defendants to exercise their fiduciary duties to obtain a transaction that is in the best interests of Centrue shareholders and awarding plaintiff its costs and attorneys' fees. The defendants believe that the claims in these lawsuits are wholly without merit and intend to defend them vigorously. It is possible other potential plaintiffs may file additional lawsuits challenging the proposed transaction. The Company says the outcome of the pending and any additional future litigation is uncertain. If any case is not resolved, the lawsuit(s) could prevent or delay completion of the merger and result in substantial costs to Midland and Centrue, including any costs associated with the indemnification of directors and officers that are not covered by insurance. One of the conditions to each party's obligation to close the merger is that no order, injunction or decree issued by any court or agency of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the merger or any of the other transactions contemplated by the merger agreement shall be in effect. As such, if plaintiffs are successful in obtaining an injunction prohibiting the completion of the merger or the bank merger on the agreed-upon terms, then such injunction may prevent the merger from being completed, or from being completed within the expected timeframe. The defense or settlement of any lawsuit or claim that remains unresolved at the time the merger is completed may adversely affect the combined company's business, financial condition, results of operations and cash flows. Midland States Bancorp, Inc., an Illinois corporation formed in 1988, is a diversified financial holding company headquartered in Effingham, Illinois. The Company's banking subsidiary, Midland States Bank, an Illinois state-chartered bank formed in 1881, has branches across Illinois and in Missouri and Colorado, and provides a broad array of traditional community banking and other complementary financial services, including commercial lending, residential mortgage origination, wealth management, merchant services and prime consumer lending. MKS INSTRUMENTS: Motion to Dismiss Class Suit Underway ------------------------------------------------------ MKS Instruments, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on March 1, 2017, for the fiscal year ended December 31, 2016, that the Defendants' motion to dismiss the complaint in the Newport Corporation Shareholder Litigation, remains pending. The Company said, "On March 9, 2016, a putative class action lawsuit captioned Dixon Chung v. Newport Corp., et al, Case No. A- 16-733154-C, was filed in the District Court, Clark County, Nevada on behalf of a putative class of stockholders of Newport for claims related to the Merger Agreement between us, Newport, and by and among the Company, PSI Equipment, Inc., a wholly owned subsidiary of the Company ("Merger Sub"). The complaint, filed on March 9, 2016, named as defendants us, Newport and Merger Sub, and certain then-current and former members of Newport's former board of directors. The complaint alleges that the named directors breached their fiduciary duties to Newport's stockholders by agreeing to sell Newport through an inadequate and unfair process, which led to inadequate and unfair consideration, and by agreeing to unfair deal protection devices. The complaint also alleges that we, Newport, and Merger Sub aided and abetted the named directors' alleged breaches of their fiduciary duties. The complaint seeks injunctive relief, including to enjoin or rescind the Merger Agreement, monetary damages, and an award of attorneys' and other fees and costs, among other relief. On March 25, 2016, the plaintiff in the Chung action filed an amended complaint, which adds certain allegations, including that the preliminary proxy statement filed by Newport on March 15, 2016 (the "Proxy") omitted material information. The amended complaint also names as defendants us, Newport, Merger Sub, and then-current members of Newport's board of directors." "Also on March 25, 2016, a second putative class action complaint captioned Hubert C. Pincon v. Newport Corp., et al., Case No. A- 16-734039-B, was filed in the District Court, Clark County, Nevada, on behalf of a putative class of Newport's stockholders for claims related to the Merger Agreement. The complaint names as defendants us, Newport, and Merger Sub and the then-current members of Newport's former board of directors. It alleges that the named directors breached their fiduciary duties to Newport's stockholders by agreeing to sell Newport through an inadequate and unfair process, which led to inadequate and unfair consideration, by agreeing to unfair deal protection devices, and by omitting material information from the Proxy. The complaint also alleges that we, Newport, and Merger Sub aided and abetted the named directors' alleged breaches of their fiduciary duties. The complaint seeks injunctive relief, including to enjoin or rescind the Merger Agreement, and an award of attorneys' and other fees and costs, among other relief. "On April 14, 2016, the Court granted plaintiffs' motion to consolidate the Pincon and Chung actions and appointed counsel in the Pincon action as lead counsel. Also on April 14, 2016, the Court granted plaintiffs' motion for expedited discovery and scheduled a hearing on plaintiffs' anticipated motion for a preliminary injunction for April 25, 2016. On April 20, 2016, plaintiffs filed a motion to vacate the hearing on their anticipated motion for a preliminary injunction and notified the Court that they did not presently intend to file a motion for a preliminary injunction regarding the Merger Agreement. On April 22, 2016, the Court vacated the hearing on plaintiffs' anticipated motion for a preliminary injunction. In August, plaintiffs completed the expedited discovery that the Court ordered. "On October 19, 2016, plaintiffs filed an amended complaint captioned In re Newport Corporation Shareholder Litigation, Case No. A-16-733154-B, in the District Court, Clark County, Nevada, on behalf of a class of Newport's stockholders for claims related to the Merger Agreement. The complaint names as defendants us, Newport, and the then-current members of Newport's former board of directors. It alleges that the named directors breached their fiduciary duties to Newport's stockholders by agreeing to sell Newport through an inadequate and unfair process, which led to inadequate and unfair consideration, by agreeing to unfair deal protection devices, and by omitting material information from the Proxy. The complaint also alleges that we and Newport aided and abetted the named directors' alleged breaches of their fiduciary duties. The complaint seeks monetary damages, including pre- and post-judgment interest. On December 9, 2016, both we and the Newport defendants filed motions to dismiss. Plaintiffs filed an opposition to the motions to dismiss on January 13, 2017. On February 3, 2017, we and the Newport defendants filed their reply briefs in support of their motions to dismiss. A hearing on the motions to dismiss was held on February 15, 2017. "We believe that the claims asserted in the amended complaint have no merit and we intend to defend vigorously against these claims." MKS Instruments, Inc. is a global provider of instruments, subsystems and process control solutions that measure, control, power, deliver, monitor and analyze critical parameters of advanced manufacturing processes to improve process performance and productivity. NASHVILLE, TN: Immigrant Detentions Illegal, Abriq Claims --------------------------------------------------------- Kevin Lessmiller, writing for Courthouse News Service, reported that a class claims in a federal lawsuit in Nashville, Tenn., that the Nashville-area government and sheriff are illegally detaining hundreds of immigrants in exchange for cash payments from Immigration and Customs Enforcement. Lead plaintiff Abdullah Abriq says in a lawsuit filed on April 7, in Nashville federal court that he immigrated to the United States on a student visa and has never been arrested or convicted of a crime, but was nevertheless taken into custody by ICE agents on April 6. "On April 6, 2017, ICE took custody of the plaintiff pending civil removal proceedings," the complaint states. "On April 6, 2017, ICE transferred custody of the plaintiff to the defendants at the Davidson County Jail location on Harding Place in Nashville, Tennessee." Abriq sued Davidson County Sheriff Daron Hall and the Metropolitan Government of Nashville and Davidson County on behalf of a proposed class of immigrants illegally held there, alleging violations of Fourth Amendment and due process rights. "For the past five years, the defendants have illegally used Davidson County facilities to detain at least detain hundred, and likely thousands, of immigrants in return for monetary payments from the U.S. Department of Homeland Security Immigration and Customs Enforcement," the lawsuit states. "The defendants' unlawful seizure of ICE administrative detainees is unconstitutional and poses serious and continuing harms to the detainees." According to the complaint, the Metro Nashville government contracted with ICE from 2007 to 2012 for "pre-custodial law enforcement functions and post-custodial immigration detention functions." Under the deal, the Davidson County Sheriff's Office allegedly agreed to take custody of ICE administrative detainees for $61 per day for each detainee. After a backlash that included a lawsuit against the local government, its Metro Council allowed the agreement to expire in 2012, but Abriq claims Sheriff Hall has continued to hold administrative detainees for ICE in exchange for federal dollars. "The defendants have taken custody of, and detained, thousands of administrative detainees over the past five years. This reflects an ongoing custom, policy, and practice of the DCSO to take custody of administrative detainees illegally for ICE in return for cash payments, despite actual knowledge that no lawfully approved [agreement] has been in place since 2012," the complaint states. Abriq claims himself and other class members are "being held against their will in a local jail without any written contractual standards in place to protect them." "It is not a crime for a removable alien to be present in the United States. Accordingly, removal proceedings are a civil matter, not a criminal one," the lawsuit states. Abriq seeks a court order stopping the Metro Nashville government and Sheriff Hall from continuing to hold ICE administrative detainees without lawful authority, like the agreement that expired in 2012. The proposed class is represented by Anthony Orlandi of Branstetter Stranch and Elliot Ozment, both in Nashville. "The defendants had no power to seize these plaintiff[s] in the first place. They have no power to hold them now," the complaint states. The sheriff's department said in a statement that it believes its actions are lawful. "The Nashville-Davidson County Sheriff's Office has been housing ICE/federal inmates since an Inter-Governmental Service Agreement (IGSA) was approved by the Metropolitan Council more than 20 years ago (1996)," it said. "We believe this gives the sheriff's office authority to continue the practice of housing ICE/federal inmates. If the plaintiff's lawsuit is successful, it will result in the immediate removal of ICE inmates from Davidson County; it will not stop removals. This will create an even greater hardship on local immigrant families." NATURAL HEALTH: Discovery Cut-Off Date in "Ford" Extended --------------------------------------------------------- In the case, Robert Ford v. Natural Health Trends Corp. et al., Case No. 2:16-cv-00255 (C.D. Cal.), Judge Terry J Hatter, Jr., approved a Stipulation to Extend Discovery Cut-Off Date. The Court set these dates: Deadline to amend pleadings 06/16/2017 Plaintiffs' motion for class certification 06/30/2017 Defendants' opposition to motion for class certification 08/25/2017 Plaintiffs' reply in support of motion for class certification 10/20/2017 Fact discovery deadline 05/04/2018 Expert opening reports 06/15/2018 Expert rebuttal reports 07/18/2018 Expert discovery deadline 08/15/2018 Summary judgment motions 09/16/2018 Opposition to summary judgment motions 11/14/2018 Replies in support of summary judgment motions 12/14/2018 The final pre-trial conference scheduled for August 21, 2017 at 10:00 a.m. is vacated and rescheduled for August 31, 2018 at 10:00 a.m. Natural Health Trends Corp. has filed an answer to the consolidated securities lawsuit pending in California, according to the Company's March 10, 2017, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2016. The Company said: "In January 2016, two putative securities class action complaints were filed against us and our top executives in the United States District Court for the Central District of California: Ford v. Natural Health Trends Corp. and Li v. Natural Health Trends Corp. On March 29, 2016, the court consolidated these actions, appointed two Lead Plaintiffs, Messrs. Dao and Juan, and appointed the Rosen Law Firm and Levi & Korsinsky LLP as co-Lead Counsel for the purported class. Plaintiffs filed a consolidated complaint on April 29, 2016. The consolidated complaint purports to assert claims on behalf of all persons who purchased or otherwise acquired our common stock between March 6, 2015 and March 15, 2016 under (i) Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder against Natural Health Trends Corp., Chris T. Sharng, and Timothy S. Davidson, and (ii) Section 20(a) of the Securities Exchange Act of 1934 against Chris T. Sharng, Timothy S. Davidson, and George K. Broady." "The consolidated complaint alleges, inter alia, that we made materially false and misleading statements regarding the legality of our business operations in China, including running an allegedly illegal multi-level marketing business. The consolidated complaint seeks an indeterminate amount of damages, plus interest and costs. We filed a motion to dismiss the consolidated complaint on June 15, 2016 and a reply in support of our motion to dismiss on August 22 2016. On December 5, 2016, the Court denied our motion to dismiss. On February 17, 2017, we filed an answer to the consolidated complaint." The Company believes that these claims are without merit and intends to vigorously defend against them. Natural Health Trends Corp. is an international direct-selling and e-commerce company headquartered in Rolling Hills Estates, California. Subsidiaries controlled by the Company sell personal care, wellness, and "quality of life" products under the "NHT Global" brand. The Company's wholly-owned subsidiaries have an active physical presence in these markets: North America; Greater China, which consists of Hong Kong, Taiwan and China; South Korea; Singapore; Malaysia; Japan; and Europe. The Company also operates in Russia and Kazakhstan through its engagement with a local service provider. NL INDUSTRIES: Appeal in Santa Clara Action Remains Pending ----------------------------------------------------------- NL Industries, Inc.'s appeal from the denial of its motion for a new trial in the Santa Clara Action remains pending, according to the Company's March 10, 2017, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2016. The Company said: "In one of these lead pigment cases, in April 2000 we were served with a complaint in County of Santa Clara v. Atlantic Richfield Company, et al, (Superior Court of the State of California, County of Santa Clara, Case No. 1-00-CV-788657) brought by a number of California government entities against the former pigment manufacturers, the LIA and certain paint manufacturers. The County of Santa Clara sought to recover compensatory damages for funds the plaintiffs had expended or would in the future expend for medical treatment, educational expenses, abatement or other costs due to exposure to, or potential exposure to, lead paint, disgorgement of profit, and punitive damages. In July 2003, the trial judge granted defendants' motion to dismiss all remaining claims. Plaintiffs appealed and the intermediate appellate court reinstated public nuisance, negligence, strict liability, and fraud claims in March 2006." "A fourth amended complaint was filed in March 2011 on behalf of The People of California by the County Attorneys of Alameda, Ventura, Solano, San Mateo, Los Angeles and Santa Clara, and the City Attorneys of San Francisco, San Diego and Oakland. That complaint alleged that the presence of lead paint created a public nuisance in each of the prosecuting jurisdictions and sought its abatement. In July and August 2013, the case was tried. In January 2014, the Judge issued a judgment finding us, The Sherwin Williams Company and ConAgra Grocery Products Company jointly and severally liable for the abatement of lead paint in pre-1980 homes, and ordered the defendants to pay an aggregate $1.15 billion to the people of the State of California to fund such abatement. In February 2014, we filed a motion for a new trial, and in March 2014 the court denied the motion. Subsequently in March 2014, we filed a notice of appeal with the Sixth District Court of Appeal for the State of California and the appeal is proceeding with the appellate court. NL believes that this judgment is inconsistent with California law and is unsupported by the evidence, and we will defend vigorously against all claims." "The Santa Clara case is unusual in that this is the second time that an adverse verdict in the lead pigment litigation has been entered against NL (the first adverse verdict against NL was ultimately overturned on appeal). We have concluded that the likelihood of a loss in this case has not reached a standard of "probable" as contemplated by ASC 450, given (i) the substantive, substantial and meritorious grounds on which the adverse verdict in the Santa Clara case will be appealed, (ii) the uniqueness of the Santa Clara verdict (i.e. no final, non-appealable verdicts have ever been rendered against us, or any of the other former lead pigment manufacturers, based on the public nuisance theory of liability or otherwise), and (iii) the rejection of the public nuisance theory of liability as it relates to lead pigment matters in many other jurisdictions (no jurisdiction in which a plaintiff has asserted a public nuisance theory of liability has ever successfully been upheld). In addition, liability that may result, if any, cannot be reasonably estimated, as NL continues to have no basis on which an estimate of liability could be made, as discussed above. However, as with any legal proceeding, there is no assurance that any appeal would be successful, and it is reasonably possible, based on the outcome of the appeals process, that NL may in the future incur some liability resulting in the recognition of a loss contingency accrual that could have a material adverse impact on our results of operations, financial position and liquidity." NL Industries, Inc., was organized as a New Jersey corporation in 1891 and is headquartered in Dallas, Texas. The Company is primarily a holding company and operates in the component products industry through its majority-owned subsidiary, CompX International Inc. The Company operates in the chemicals industry through its noncontrolling interest in Kronos Worldwide, Inc. NL INDUSTRIES: Continues to Defend "Lewis" Class Suit in Illinois ----------------------------------------------------------------- NL Industries, Inc., continues to defend itself against a class action lawsuit initiated by Lewis, et al., in Illinois, according to the Company's March 10, 2017, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2016. In June 2000, a complaint was filed in Illinois state court, Lewis, et al. v. Lead Industries Association, et al (Circuit Court of Cook County, Illinois, County Department, Chancery Division, Case No. 00CH09800.) Plaintiffs seek to represent two classes, one consisting of minors between the ages of six months and six years who resided in housing in Illinois built before 1978, and another consisting of individuals between the ages of six and twenty years who lived in Illinois housing built before 1978 when they were between the ages of six months and six years and who had blood lead levels of 10 micrograms/deciliter or more. The complaint seeks damages jointly and severally from the former pigment manufacturers and the LIA to establish a medical screening fund for the first class to determine blood lead levels, a medical monitoring fund for the second class to detect the onset of latent diseases and a fund for a public education campaign. In April 2008, the trial court judge certified a class of children whose blood lead levels were screened venously between August 1995 and February 2008 and who had incurred expenses associated with such screening. In March 2012, the trial court judge decertified the class. In June 2012, the trial court judge granted plaintiffs the right to appeal his decertification order, and in August 2012 the appellate court granted plaintiffs permission to appeal. In March 2013, the appellate court agreed with the trial court's rationale regarding legislative requirements to screen children's blood lead levels and remanded the case for further proceedings in the trial court. In July 2013, plaintiffs moved to vacate the decertification. In October 2013, the judge denied plaintiffs' motion to vacate the decertification of the class. In March 2014, plaintiffs filed a new class certification motion. In April 2015, a class was certified consisting of parents or legal guardians of children who lived in certain "high risk" areas in Illinois between August 18, 1995 and February 19, 2008, and incurred an expense or liability for having their children's blood lead levels tested. NL Industries, Inc., was organized as a New Jersey corporation in 1891 and is headquartered in Dallas, Texas. The Company is primarily a holding company and operates in the component products industry through its majority-owned subsidiary, CompX International Inc. The Company operates in the chemicals industry through its noncontrolling interest in Kronos Worldwide, Inc. NL INDUSTRIES: Still Defends Suits Over Use of Lead Pigments ------------------------------------------------------------ NL Industries, Inc., said in its Form 10-K filed with the Securities and Exchange Commission on March 10, 2017, for the fiscal year ended December 31, 2016, that it continues to defend lawsuits arising from use of lead-based paints. The Company said: "Our former operations included the manufacture of lead pigments for use in paint and lead-based paint. We, other former manufacturers of lead pigments for use in paint and lead- based paint (together, the "former pigment manufacturers"), and the Lead Industries Association (LIA), which discontinued business operations in 2002, have been named as defendants in various legal proceedings seeking damages for personal injury, property damage and governmental expenditures allegedly caused by the use of lead- based paints. Certain of these actions have been filed by or on behalf of states, counties, cities or their public housing authorities and school districts, and certain others have been asserted as class actions. These lawsuits seek recovery under a variety of theories, including public and private nuisance, negligent product design, negligent failure to warn, strict liability, breach of warranty, conspiracy/concert of action, aiding and abetting, enterprise liability, market share or risk contribution liability, intentional tort, fraud and misrepresentation, violations of state consumer protection statutes, supplier negligence and similar claims." The plaintiffs in these actions generally seek to impose on the defendants responsibility for lead paint abatement and health concerns associated with the use of lead-based paints, including damages for personal injury, contribution and/or indemnification for medical expenses, medical monitoring expenses and costs for educational programs. To the extent the plaintiffs seek compensatory or punitive damages in these actions, such damages are generally unspecified. In some cases, the damages are unspecified pursuant to the requirements of applicable state law. A number of cases are inactive or have been dismissed or withdrawn. Most of the remaining cases are in various pre-trial stages. Some are on appeal following dismissal or summary judgment rulings or a trial verdict in favor of either the defendants or the plaintiffs. The Company said: "We believe that these actions are without merit, and we intend to continue to deny all allegations of wrongdoing and liability and to defend against all actions vigorously. We do not believe it is probable that we have incurred any liability with respect to all of the lead pigment litigation cases to which we are a party, and liability to us that may result, if any, in this regard cannot be reasonably estimated, because: * we have never settled any of the market share, intentional tort, fraud, nuisance, supplier negligence, breach of warranty, conspiracy, misrepresentation, aiding and abetting, enterprise liability, or statutory cases, * no final, non-appealable adverse verdicts have ever been entered against us, and * we have never ultimately been found liable with respect to any such litigation matters, including over 100 cases over a twenty-year period for which we were previously a party and for which we have been dismissed without any finding of liability." "Accordingly, we have not accrued any amounts for any of the pending lead pigment and lead-based paint litigation cases filed by or on behalf of states, counties, cities or their public housing authorities and school districts, or those asserted as class actions. In addition, we have determined that liability to us which may result, if any, cannot be reasonably estimated because there is no prior history of a loss of this nature on which an estimate could be made and there is no substantive information available upon which an estimate could be based." NL Industries, Inc., was organized as a New Jersey corporation in 1891 and is headquartered in Dallas, Texas. The Company is primarily a holding company and operates in the component products industry through its majority-owned subsidiary, CompX International Inc. The Company operates in the chemicals industry through its noncontrolling interest in Kronos Worldwide, Inc. NUVASIVE INC: Wants Judge to Stay Investor Class Action ------------------------------------------------------- Martin O'Sullivan, Kat Greene and Jeff Overley, writing for Law360, report that NuVasive Inc. has urged a California federal judge to pause an investor class action alleging that the surgical device developer damaged shareholders by concealing a kickback scheme, saying discovery should stop until the Ninth Circuit rules on the company's bid to decertify the class of investors. U.S. District Judge Jeffrey T. Miller in March certified a class of NuVasive investors alleging the company falsely claimed compliance with federal laws on Medicare and Medicaid reimbursements. NuVasive, which is appealing the order to the Ninth Circuit, on April 17 said that the appellate court would not issue its ruling and potentially decertify the investor class until after discovery had ended in district court, posing a possible waste of time and money. "In order to avoid the very real potential that the parties will expend an exorbitant amount of money conducting discovery in a case that may well not proceed, and to avoid tying up the time of dozens of individuals, an immediate stay should be issued pending resolution of the petition," NuVasive said. The complaint, originally filed in August 2013, accused NuVasive and its officers -- CEO and Chairman of the Board of Directors Alexis V. Lukianov and former CFO Michael J. Lambert -- of violating the Securities Exchange Act of 1934 by making deceptive statements to investors and the public. The suit claimed the company repeatedly assured investors it was complying with federal laws about claims to Medicare and Medicaid reimbursements. But the company revealed in a quarterly report that it had been subpoenaed by the U.S. Department of Justice for alleged fraud on its Medicare and Medicaid claims. The news of the investigation spurred a 12 percent drop in the stock's price, dropping it $3.28 to $22.84 by the market's close July 31, 2013. Investors allegedly bought the stock at prices that were artificially inflated by the company's repeated assurances that it was complying with federal reimbursement laws. NuVasive in July 2015 announced that it would pay nearly $14 million to the DOJ to settle claims that it had violated the False Claims Act by promoting off-label uses of spinal fusion products for Medicare patients and dispensing kickbacks through a supposedly independent medical society. Judge Miller's certification order covers a class of investors who bought NuVasive securities between Oct. 22, 2008, and July 30, 2013. Counsel for the investors did not immediately respond to requests for comment. NuVasive and Lambert are represented by Robert W. Brownlie -- robert.brownlie@dlapiper.com -- Noah A. Katsell -- noah.katsell@dlapiper.com -- and Kellin M. Chatfield -- kellin.chatfield@dlapiper.com -- of DLA Piper. Lukianov is represented by Christopher H. McGrath and Raymond W. Stockstill -- beaustockstill@paulhastings.com -- of Paul Hastings LLP. The investors are represented by Michele S. Carino, Jeremy A. Lieberman, Jennifer Pafiti, Cheryl D. Hamer and Emma Gilmore of Pomerantz LLP and Lionel Z. Glancy of Glancy Prongay & Murray LLP. The district court case is Brad Mauss et al. v. NuVasive Inc. et al., case number 3:13-cv-02005, in the U.S. District Court for the Southern District of California. The appeal is Popov et al. v. NuVasive Inc., case number 17-80055, in the U.S. Court of Appeals for the Ninth Circuit. O'CONNELL PROTECTION: Faces "Harris" Suit Over Failure to Pay OT ---------------------------------------------------------------- Joseph Harris, individually, and on behalf of all others similarly-situated v. O'Connell Protection Services, LLC and James O'Connell, Case No. 2:17-cv-02226 (E.D.N.Y., April 12, 2017), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standards Act. The Defendants are in the business of providing intelligence and expert advice. [BN] Joseph Harris is a pro se plaintiff. ODWALLA INC: Faces "Wilson" Class Suit in C.D. California --------------------------------------------------------- A class action lawsuit has been commenced against Odwalla, Inc., The Coca-Cola Company, and Does 1 through 10, inclusive. The case is captioned Stephen Wilson, individually, and on behalf of a class of similarly situated individuals v. Odwalla, Inc., The Coca-Cola Company, and Does 1 through 10, inclusive, Case No. 2:17-cv-02763 (C.D. Cal., April 11, 2017). The Defendants own and operate a beverages company in California. [BN] Stephen Wilson is a pro se plaintiff. OMEGA FLEX: Missouri District Court Dismisses "George" Class Suit ----------------------------------------------------------------- The U.S. District Court for the Western District of Missouri dismissed the putative class action lawsuit entitled George v. Powercet Corporation, et al., Omega Flex, Inc. said in its Form 10-K filed with the Securities and Exchange Commission on March 13, 2017, for the fiscal year ended December 31, 2016. A putative class action case had been filed against the Company and other parties in U.S. District Court in the Western District of Missouri, titled George v. Powercet Corporation, et al. However, that case was dismissed by the court in December 2016. Omega Flex, Inc. is a leading manufacturer of flexible metal hose, and is currently engaged in a number of different markets, including construction, manufacturing, transportation, petrochemical, pharmaceutical and other industries. P&M LIVE: Faces "Pino" Suit Over Failure to Pay Overtime Wages -------------------------------------------------------------- Juan Carlos Pino, On behalf of himself and others similarly situated v. P&M Live Poultry Inc., Mike Lee, Tsuan Ching Lee, and Doe Peter, Case No. 1:17-cv-02206 (E.D.N.Y. April 11, 2017), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standards Act. The Defendants own and operate a poultry farm located at 13162 Avery Ave, Flushing, NY 11355. [BN] Juan Carlos Pino is a pro se plaintiff. PACIFIC COAST: Final Hearing on "Welch" Accord Continued June 12 ---------------------------------------------------------------- The final hearing for the approval of Pacific Coast Oil Trust's settlement of a consolidated class action lawsuit filed by Thomas Welch and Ralph Berliner is continued until June 12, 2017, the Trust said in its Form 10-K filed with the Securities and Exchange Commission on March 10, 2017, for the fiscal year ended December 31, 2016. On July 1, 2014, Thomas Welch, individually and on behalf of all others similarly situated, filed a putative class action complaint in the Superior Court of California, County of Los Angeles, against the Trust, PCEC, PCEC (GP) LLC, Pacific Coast Energy Holdings LLC, certain executive officers of PCEC (GP) LLC and others. The complaint asserts federal securities law claims against the Trust and other defendants and states that the claims are made on behalf of a class of investors who purchased or otherwise acquired Trust securities pursuant or traceable to the registration statement that became effective on May 2, 2012 and the prospectuses issued thereto and the registration statement that became effective purportedly on September 19, 2013 and the prospectuses issued thereto. The complaint states that the plaintiff is pursuing negligence and strict liability claims under the Securities Act of 1933 and alleges that both such registration statements contained numerous untrue statements of material facts and omitted material facts. The plaintiff seeks class certification, unspecified compensatory damages, rescission on certain of plaintiff's claims, pre-judgment and post-judgment interest, attorneys' fees and costs and any other relief the Court may deem just and proper. On October 16, 2014, Ralph Berliner, individually and on behalf of all others similarly situated, filed a second putative class action complaint in the Superior Court of California, County of Los Angeles, against the Trust, PCEC, PCEC (GP) LLC, Pacific Coast Energy Holdings LLC, certain executive officers of PCEC (GP) LLC and others. The Berliner complaint asserts the same claims and makes the same allegations, against the same defendants, as are made in the Welch complaint. In November 2014, the Welch and Berliner actions were consolidated into a single action. On December 8, 2015, the parties agreed in principle to settle the consolidation action. On September 14, 2016, the Court entered an order granting preliminary approval of the settlement, and set a hearing for March 2, 2017 to determine whether to grant final approval of the settlement and enter final judgment. On March 2, 2017, the final approval hearing was continued until June 12, 2017. The Trust believes that it is fully indemnified by PCEC against any liability or expense it might incur in connection with the consolidated action. Pacific Coast Oil Trust is a statutory trust formed in January 2012 under the Delaware Statutory Trust Act pursuant to a Trust Agreement among Pacific Coast Energy Company LP, as trustor, The Bank of New York Mellon Trust Company, N.A., as Trustee, and Wilmington Trust, National Association, as Delaware Trustee. The Trust was created to acquire and hold net profits and royalty interests in certain oil and natural gas properties located in California for the benefit of the Trust unitholders. On May 8, 2012, the Trust and PCEC entered into a Conveyance of Net Profits Interests and Overriding Royalty Interest (the "Conveyance"), pursuant to which PCEC conveyed to the Trust the net profits interests ("Net Profits Interests") and a royalty interest ("Royalty Interest"), which are collectively referred to herein as the "Conveyed Interests," in certain oil and natural gas properties located onshore in California (the "Underlying Properties"). PACIFIC CONTINENTAL: Wins Final Approval of Deal in Suit vs. Bank ----------------------------------------------------------------- The Circuit Court of the State of Oregon gave final approval of the settlement of the class action lawsuit involving the Pacific Continental Bank, according to Pacific Continental Corporation's March 13, 2017, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2016. On August 23, 2013, a putative class action lawsuit ("Class Action") was filed in the Circuit Court of the State of Oregon for the County of Multnomah on behalf of individuals who placed money with Berjac of Oregon and Berjac of Portland (collectively, "Berjac"). The Berjac entities merged and the surviving company, Berjac of Oregon, is currently in Chapter 7 bankruptcy. The Class Action complaint, which has been amended several times, currently asserts three claims against PCB, Fred "Jack" W. Holcomb, Holcomb Family Limited Partnership, Jones & Roth, P.C., and Umpqua Bank, as defendants. The lawsuit asserts that PCB is jointly and severally liable for materially aiding or participating in Berjac's sales of securities in violation of the Oregon Securities Law. Claimants seek the return of the money placed with Berjac of Oregon and Berjac of Portland, plus interest, and costs and attorneys' fees. The current version of the complaint seeks $100 million in damages from all defendants. On August 28, 2015, the court-appointed bankruptcy trustee for Berjac of Oregon filed an adversary complaint ("Trustee's Lawsuit") in the U.S. Bankruptcy Court for the District of Oregon alleging that The Company, The Bank, Umpqua Bank, Century Bank and Summit Bank provided lines of credit that enabled continuation of the alleged Ponzi scheme operated by Berjac of Oregon and the two partners of the pre-existing Berjac general partnerships, Michael Holcomb and Gary Holcomb. The Company acquired Century Bank on February 1, 2013. The Trustee's Lawsuit was transferred from the U.S. Bankruptcy Court to the U.S. District Court for the District of Oregon (Eugene Division). In addition to seeking an award of punitive damages, the trustee is asserted fraudulent transfer law and unjust enrichment in an effort to recover payments made by Berjac to Century Bank and PCB. Among other claims for relief, the trustee is sought the disgorgement of monies advanced to the Holcomb Family Limited Partnership by Century Bank and returned to the estate by court order following the post-petition cash collateral hearing, and of monies received by PCB from the proceeds of the sale of stock held by the Holcomb Family Limited Partnership and securing one of the lines of credit previously held by Century Bank. The trustee also asserted a claim for alleged aiding and abetting of breaches of duties owed to Berjac. The complaint in the Trustee's Lawsuit indicated the range of damages sought by the trustee which included, among other claims for relief, an award of punitive damages not to exceed $10 million, recovery of payments associated with allegedly fraudulent transfers totaling up to approximately $55.3 million, including up to $20.7 million from Century Bank and up to $7.7 million from PCB. On November 16, 2016, the U.S. District Court judge stayed all deadlines in the Trustee's Lawsuit and all parties were ordered to participate in a judicial settlement conference. The judicial settlement conference sessions were held on February 18, 2016 and April 20, 2016. At the April 20, 2016, settlement conference, PCB reached a tentative settlement of the Class Action and the Trustee's Lawsuit. Per the December 2, 2016 Trustee's Motion and Notice of Intent to Settle and Compromise Adversary Proceeding ("Motion"), and subsequently ordered by District Court Judge Aiken on December 6, the settlement and compromise between PCB and the Trustee was to be deemed effective without further order within 23 days unless a written objection to the Trustee's Motion was filed and served on the Trustee. No written objection was filed, and PCB is informed that no written objection was served on the Trustee. Accordingly, final approval of the settlement of the Trustee's Action was effective December 29, 2016. The state Circuit Court gave final approval of the settlement of the Class Action at a hearing on January 6, 2017. The Company says the settlement is not expected to have a material adverse effect on PCC's financial condition. Pacific Continental Corporation is an Oregon corporation and registered bank holding company headquartered in Eugene, Oregon. The Company was organized on June 7, 1999, pursuant to a holding company reorganization of Pacific Continental Bank, its wholly owned subsidiary. The Company's principal business activities are conducted through the Bank, an Oregon state-chartered bank with deposits insured by the Federal Deposit Insurance Corporation. PATH INC: May 25 Hearing for Initial Approval of $5.3M Accord ------------------------------------------------------------- Nicholas Iovino, writing for Courthouse News Service, reported that Twitter, Instagram and other app makers look likely to pay $5.3 million to settle class action in San Francisco, that they uploaded Apple device users' personal data without consent. A motion for preliminary approval of the consolidated class action settlement was filed on April 3, night. The five-year-old litigation stretches back to March 2012 when lead plaintiff Marc Opperman sued Apple and 17 app developers for allegedly letting companies swipe users' address book data from iPhones and other devices without permission. The eight settling app makers include Twitter, Instragram, Yelp, Foursquare, Foodspotting, Gowalla, Kik Interactive and Kong Technologies, which acquired the social media app Path. The settlement does not resolve claims against Apple, which denied culpability for allowing apps to access users' contact lists during a hearing in November 2016. A ruling on Apple's motion for summary judgment is still pending. Last July, U.S. District Judge Jon Tigar certified a nationwide class of 480,000 Apple device users for claims against Apple and Path. In September, Tigar refused to dismiss claims against Yelp, finding the crowd-sourcing business review app failed to explicitly disclose its intent to upload users' contact data. The proposed $5.3 million fund will cover all aspects of the settlement, including administering claims, incentive awards for class representatives and attorneys' fees, according to the motion for preliminary settlement approval. Class members will receive payments as electronic credits for Amazon.com, or as physical postcard checks for individuals who do not shop on Amazon "because sending physical checks to all claimants would be cost prohibitive," according to the motion. Potential class members will be notified of the settlement through a website, direct emails and "promoted tweet" advertisements on Twitter, according to the motion for tentative approval. Lead class counsel David Given, of Phillips Erlewine Given & Carlin, did not immediately return a phone call seeking comment on April 4. A hearing on the motion for preliminary settlement approval is scheduled for May 25 in San Francisco. The case is captioned, MARC OPPERMAN, et al., Plaintiffs, v. PATH, INC., et al., Defendants. Case 3:13-cv-00453-JST (N.D. Cal. April 3, 2017). Interim Co-Lead Counsel for Plaintiffs: David M. Given, Esq. Nicholas A. Carlin, Esq. PHILLIPS, ERLEWINE, GIVEN & CARLIN LLP 39 Mesa Street, Suite 201 The Presidio San Francisco, CA 94129 Tel: 415-398-0900 Fax: 415-398-0911 Email: dmg@phillaw.com nac@phillaw.com - and - James M. Wagstaffe, Esq. Michael J. von Loewenfeldt, Esq. Frank Busch, Esq. KERR & WAGSTAFFE LLP 100 Spear Street, 18th Floor San Francisco, CA 94105 Tel: 415-371-8500 Fax: 415-371-0500 Email: wagstaffe@kerrwagstaffe.com myl@kerrwagstaffe.com busch@kerrwagstaffe.com Plaintiffs' Liaison Counsel: Carl F. Schwenker, Esq. LAW OFFICES OF CARL F. SCHWENKER The Haehnel Building 1101 East 11th Street Austin, TX 78702 Tel: (512) 480-8427 Fax: (512) 857-1294 Plaintiffs' Steering Committee: Jeff Edwards, Esq. EDWARDS LAW The Haehnel Building 1101 East 11th Street Austin, TX 78702 Tel: (512) 623-7727 Fax: (512) 623-7729 - and - Jennifer Sarnelli, Esq. GARDY & NOTIS, LLP Tower 56 126 East 56th Street, 8th Floor New York, NY 10022 Tel: (212) 905-0509 Fax: (212) 905-0508 PROMETHEUS GLOBAL: Faces "Sullivan" Suit Over ADA Violation ----------------------------------------------------------- Phillip Sullivan Jr., on behalf of himself and all others similarly situated v. Prometheus Global Media LLC, Case No. 1:17- cv-02582 (S.D.N.Y., April 11, 2017), is brought against the Defendants for violation of the Americans with Disabilities Act. Prometheus Global Media LLC operates a media company located at 340 Madison Avenue, 6th Floor, New York, NY 10173. [BN] The Plaintiff is represented by: C.K. Lee, Esq. LEE LITIGATION GROUP, PLLC 30 East 39th Street, 2nd Floor New York, NY 10016 Telephone: (212) 465-1188 Facsimile: (212) 465-1181 E-mail: cklee@leelitigation.com QUANTA SERVICES: To Appeal Ruling in "Benton" Class Suit -------------------------------------------------------- Quanta Services, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on March 1, 2017, for the fiscal year ended December 31, 2016, that Quanta is in the process of appealing a ruling in the case, Lorenzo Benton v. Telecom Network Specialists, Inc., et al. In June 2006, plaintiff Lorenzo Benton filed a class action complaint in the Superior Court of California, County of Los Angeles, alleging various wage and hour violations against Telecom Network Specialists (TNS), a former subsidiary of Quanta. Quanta retained liability associated with this matter pursuant to the terms of Quanta's sale of TNS in December 2012. Benton seeks to represent a class of workers that includes all persons who worked on certain TNS projects, including individuals that TNS retained through numerous staffing agencies. The plaintiff class in this matter is seeking damages for unpaid wages, penalties associated with the failure to provide meal and rest periods and overtime wages, interest and attorneys' fees. In September 2015, the trial court certified the class as to workers from the various staffing companies at issue. In January 2017, the trial court granted a summary judgment motion filed by the plaintiff class and found that TNS was a joint employer of the class members and that it failed to provide adequate meal and rest breaks and failed to pay overtime wages. Quanta believes this decision is not in line with controlling law, is in the process of appealing and continues to contest liability in this matter. Quanta Services, Inc. (Quanta) is a leading provider of specialty contracting services, offering infrastructure solutions primarily to the electric power and oil and gas industries in the United States, Canada and Australia and select other international markets. SALEM COUNTY, NJ: Stevenson et al. Sue Over Inmates' Velcro Suits ----------------------------------------------------------------- Barbara Leonard, writing for Courthouse News Service, reported that four people who spent time at the county jail in Salem, New Jersey, claim in a federal class action in Camdem, N.J. that their genitals were routinely exposed during their stays because they were unnecessarily strip-searched or classified as suicidal. The April 6 complaint says Salem County routinely classifies detainees as suicidal "for no apparent reason." When this happens, the detainee is given what the complaint calls a "turtle suit," held together with Velcro instead of zippers, buttons, belts or buckles. But the onetime detainees suing Salem say the Velcro on these suits is so worn out that they are useless at keeping the suits closed. Any person wearing such a garment thus has their breasts or genitals on full display, according to the complaint. The class says Salem denies privacy to its detainees for no penological purpose, strip-searching them multiple times per day, and conducting these searches in public settings or locations where cameras broadcast the searches to other locations in the jail. In the case of the female lead plaintiff, a camera in her cell "transmitted images of her exposed in her turtle suit." She says her twice- or three-times daily strip searches also "occurred in her cell, which had a glass window where other detainees and male COs could view her being subject to these cavity/strip searches." One of the male lead plaintiffs says he was transferred to the Salem jail from a stint at Cumberland County that was without incident. He says he was forced to stand completely naked in front of 10 other supposedly suicidal detainees while being admitted to a closed custody unit. Just one of the four named plaintiffs does not describe improper placement on suicide watch. This man says he faced very public cavity searches, however, for each of the 10 times he was brought to court and whenever he reported for kitchen duty. The kitchen searches occurred, according to the complaint, despite the fact that all kitchen utensils were secured such that they could not be removed from the kitchen. Representing the class is William Riback of Haddonfield. The case is captioned, Dana Clark Stevenson and Mark Hendricks and Kenneth Fuqua and Darius Snead, individually and on behalf of a class of others similarly situated, Plaintiffs, v. The County of Salem, Defendant, Case No. 1:33-av-00001 (D. N.J., April 6, 2017). Attorneys for Plaintiffs and Proposed Class: Carl D. Poplar, Esq. 1010 Kings Highway S. Building One Cherry Hill, NJ 08034 Phone 856.216.9979 Fax 856.216.9970 - and - Kevin P. McCann, Esq. Shanna McCann, Esq. CHANCE & MCCANN, LLC 201 W. Commerce St Ext Bridgeton, NJ 08302 Phone 856 451 9100 Fax 856 455 5227 - and - William Riback, Esq. WILLIAM RIBACK, LLC 132 Haddon Avenue Haddonfield, NJ 08033 Tel: 856-857-0008 SAN FRANCISCO: Transport Sys. Sued over Disability Discrimination ----------------------------------------------------------------- Nicholas Iovino, writing for Courthouse News Service, reported that a class in San Francisco accused the Bay Area's public transit system on April 5, of denying disabled persons full and equal access by failing to properly maintain, repair and clean elevators "soiled" with human waste. Lead plaintiff Senior and Disability Action says the Bay Area Rapid Transit District, or BART, has for decades provided "vastly inferior" service to disabled riders. "This class action seeks to end the systemic civil rights violations committed by the San Francisco Bay Area Rapid Transit District (BART) against people with mobility disabilities who use wheelchairs, walkers, and other mobility aids, and who rely on elevators or escalators in order to access BART's stations and services," the 34-page complaint states. The suit claims disabled riders constantly encounter broken and soiled elevators, out-of-order escalators and non-functioning accessible fare gates. It also accuses BART of failing to provide adequate notice of elevator outages, accessible paths of travel, transportation alternatives and evacuation plans for those with mobility challenges. BART responded in a statement on April 5, that it shares in the goal of ensuring accessible public services and understands hardships faced by disabled riders. The transit agency cited a $16.3 million escalator and elevator improvement program currently underway, adding it has also devoted $190 million to improve access for downtown San Francisco stations. Since October 2015, BART has had more than 2,500 elevator outages during normal operating hours, according to agency data cited in the complaint. The disability rights advocates say the vast majority of outages are due to a "consistent failure to adequately maintain the accessible features" and that the agency also fails to provide "effective, reliable, or well-publicized alternate accessible transportation" for disabled riders. BART claims most elevator outages are due to an ongoing floor replacement project, set to be completed in May 2017. It says the project, "while time-consuming, results in a much more sanitary environment and prolongs the period of time between outages and major overhauls." But the disabled rights advocates say that when elevators do function properly, they are often contaminated by the presence of human feces or urine. This forces disabled riders to go to another station or "roll through human waste" to reach their final destination, the plaintiffs claim. "This is an especially repugnant prospect for users of manual wheelchairs, whose hands, arms, and clothes inevitably come in contact with the wheels of their wheelchairs," the complaint states. Despite hiring extra crews and offering overtime to help keep stations clean, BART said its riders "continue to unacceptably experience the impact of the homeless crisis." BART is working with local agencies to address the issue, adding that it is one of the only transit systems in the nation with a full-time crisis intervention training coordinator and community outreach liaison to work on those issues. The transit agency also says it provides a shuttle service for disabled patrons when station elevators are out of service. But the plaintiffs argue that the service is not well publicized, and that riders are not informed how long they will have to wait for it. In 1998, BART settled a previous disability rights class action -- Cupolo v. BART -- by vowing to replace or rehab defunct elevators, perform regular maintenance and repairs, distribute reliable information on elevator outages and execute a rigorous system for elevator inspections and cleanings. Under that plan, elevators were to be cleaned twice per day, and janitors were to clean fouled elevators within 30 minutes of being informed of a problem. "Although conditions temporarily improved following this settlement, BART has since allowed the condition of its elevators and other accessibility features, as well as its policies and practices regarding access for people with mobility disabilities, to return to their pre-Cupolo conditions," the complaint states. BART does offer a text alert service for elevator outages, but the agency often fails to provide updated and accurate information, which forces disabled riders to be late for work meetings, appointments and social engagements, according to the suit. The lawsuit accuses the public transit system of violating the Americans with Disabilities Act, Rehabilitation Act and state anti-discrimination laws. The plaintiffs seek a permanent injunction to place BART under the supervision of an independent monitor to ensure full and adequate implementation of a plan to maintain accessible accommodations for disabled passengers. Other plaintiffs named in the suit include the Independent Living Resource Center of San Francisco, Concord resident Pi Ra, and Oakland resident Ian Smith. The plaintiffs are represented by Rebecca Williford of Disability Rights Advocates in Berkeley and Jimmy Kim of Legal Aid At Work in San Francisco. "We share the frustration of the Disability Rights Advocates legal group, but are disappointed our program of capital improvement is being met with litigation," BART said in a statement. "Nonetheless, we hope to again work together in the future as we value the perspective of people with disabilities both from within our own employee community and the cities we serve." With a $1.24 billion operating budget and an average of 440,000 rides a week, BART manages 46 stations and more than 100 miles of above-ground and subterranean train tracks, including the Transbay Tube, which runs under and across the San Francisco Bay. The case is captioned, SENIOR AND DISABILITY ACTION, on behalf of its members and all others similarly situated; INDEPENDENT LIVING RESOURCE CENTER OF SAN FRANCISCO; PI RA, on behalf of himself and all others similarly situated; and IAN SMITH, on behalf of himself and all others similarly situated, Plaintiffs v. SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT and GRACE CRUNICAN, in her official capacity as General Manager of the San Francisco Bay Area Rapid Transit District, Defendants. Case 3:17-cv-01876-VC (N.D. Cal. April 5, 2017). Attorneys for Plaintiffs: Michelle Caiola, Esq. DISABILITY RIGHTS ADVOCATES 675 Third Avenue, Suite 2216 New York, New York 10017 Telephone: (212) 644-8644 Facsimile: (212) 644-8636 E-mail: mcaiola@dralegal.org - and - Rebecca Williford, Esq. Sean Betouliere, Esq. DISABILITY RIGHTS ADVOCATES 2001 Center Street, Fourth Floor Berkeley, California 94704-1204 Telephone: (510) 665-8644 Facsimile: (510) 665-8511 E-mail: rwilliford@dralegal.org sbetouliere@dralegal.org - and - Jinny Kim, Esq. Rachael Langston, Esq. LEGAL AID AT WORK 180 Montgomery Street, Suite 600 San Francisco, California 94104 Telephone: (415) 864-8848 Facsimile: (415) 593-0096 E-mail: jkim@legalaidatwork.org rlangston@legalaidatwork.org SANTANDER CONSUMER: SCOTUS Hears Oral Arguments in Class Action --------------------------------------------------------------- Andrew Chung, writing for Reuters, reports that the U.S. Supreme Court on April 18 appeared skeptical of widening the scope of who can be subject to a federal law targeting debt collectors' abusive practices by including those who buy debt, sometimes for pennies on the dollar. The justices heard oral arguments in a proposed consumer class action lawsuit against Santander Consumer USA Holdings Inc over allegations it violated the Fair Debt Collection Practices Act. A lower court had dismissed the case brought by four Maryland residents who had defaulted on car loans. That law typically applies to entities whose primary purpose is debt collection for others, not to lenders who give out and collect their own loans, such as banks or full-service finance companies. The justices, both liberal and conservative, appeared concerned that players in the debt collection industry could evade the law merely by buying the debt, but suggested that the statute is not as elastic as the plaintiffs in the case view it. "Just look at the language," liberal Justice Elena Kagan told the plaintiffs' lawyer, Kevin Russell. "Can you come up with a sentence that points to your reading?" "I acknowledge that may not be the first interpretation that leaps to mind," Russell replied. Companies that buy delinquent debt from the original lenders and then try to collect it from the borrowers are becoming a fast- growing segment of the multibillion-dollar debt collection industry. Debt buyers made $4.4 billion in revenue in 2015, according to legal papers. The plaintiffs filed the class action in 2012 in federal court accusing Santander of violations of the debt collection law including misrepresenting debt loads and bypassing debtors' lawyers. Their debts had been sold to Santander, a Dallas-based consumer finance company specializing in car loans, owned in part by a subsidiary of Banco Santander, the euro zone's second-largest bank by market value. Santander then tried to collect on the loans. The Richmond, Virginia-based 4th U.S. Circuit Court of Appeals upheld the lawsuit's dismissal last March, saying the law applied only to debt collectors, and Santander became a creditor when it purchased the loans. The U.S. Congress enacted the law in 1977 to regulate debt collectors, who might be less concerned about future business with the customer than original lenders and therefore willing to use abusive practices or harassment to recoup the money. When conservative Chief Justice John Roberts suggested that as a debt collector Santander has less incentive to maintain goodwill, Santander's attorney Kannon Shanmugam countered that the company is not the kind of "fly-by-night" operation the law targets, and it might seek to sell other financial products to the clients. Russell told the justices that the 4th Circuit decision could be used by companies that service debt to avoid the law by buying the defaulted loans. In court papers, the plaintiffs also said that increasingly common large debt buyers might try to evade the law by diversifying their businesses to ensure their primary purpose is not debt collection. The plaintiffs were supported by a group of 28 states, including Oregon and Florida, and the District of Columbia, which said in legal papers that consumers see no difference between debt buyers and debt collectors and should be protected from unscrupulous tactics by both. SCYNEXIS INC: Defends "Gibson" Stockholder Suit in New Jersey ------------------------------------------------------------- SCYNEXIS, Inc., is defending a purported stockholder class action lawsuit initiated in New Jersey, according to the Company's March 13, 2017, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2016. On March 8, 2017, a purported stockholder class action lawsuit was filed in the United States District Court for the District of New Jersey against SCYNEXIS and certain of its current and former officers, captioned Gibson v. Scynexis, Inc., et al. The action was filed on behalf of a putative class of all persons who purchased or otherwise acquired the Company's securities (1) pursuant or traceable to its IPO, or (2) on the open market between May 2, 2014, and March 2, 2017. It asserts claims for violation of Sections 11 and 15 of the Securities Act of 1933 and Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. The complaint seeks, among other things, compensatory damages and attorneys' fees and costs on behalf of the putative class. The Company believes that the claims lack merit and intends to defend the litigation vigorously. SCYNEXIS, Inc., is a drug development company committed to the development and commercialization of novel anti-infectives to address significant unmet therapeutic needs. The Company is developing its lead product candidate, SCY-078, as a novel oral and intravenous (IV) drug for the treatment of several fungal infections, including serious and life-threatening invasive fungal infections. SCY-078 is a novel and structurally distinct triterpenoid glucan synthase inhibitor that has been shown to be effective in vitro and in vivo against a broad range of Candida and Aspergillus species, including drug-resistant strains. Candida and Aspergillus species are the fungi responsible for approximately 85% of all invasive fungal infections in the United States (U.S.) and Europe. SEAWORLD PARKS: Customers' Motion for Summary Judgment Granted -------------------------------------------------------------- Nathan Hale, Braden Campbell, Emily Field, Joyce Hanson and Matthew Perlman, writing for Law360, report that a Florida federal court on April 17 ruled against SeaWorld in a class action over its automatic renewal of annual passes, finding the theme park breached the contracts and violated the Electronic Funds Transfer Act by renewing during the one-year term and collecting unauthorized payments after the contracts expired. Tampa-based U.S. District Judge Mary S. Scriven, who last month granted class certification to a class of customers from Florida, Texas, Virginia and California, where SeaWorld Parks & Entertainment Inc. operates theme parks, found in a 15-page order in favor of the customers' motion for summary judgment, while denying SeaWorld's motion for partial summary judgment on the breach of contract claim. In reaching her decision, she rejected SeaWorld's arguments that either it committed no "act" because the EZ Pay contracts "automatically" renewed or, alternatively, that it could not have committed a breach because the contracts had expired by the time the disputed payments were collected. She also found that the company's various affirmative defenses did not preclude a finding of liability. "SeaWorld's failure to terminate the contract unquestionably goes to the 'essence' of the contract," Judge Scriven said. "Plaintiffs bargained for a one-year pass, not a pass of indefinite duration. And it is undisputed that plaintiffs suffered damages in the form of unauthorized charges. Although those charges may have occurred after the contract expired, they are 'damages flowing from the breach.'" In his December 2014 complaint, lead plaintiff Jason Herman said he bought two one-year passes to SeaWorld Orlando and Busch Gardens in Tampa in March 2013. After 11 subsequent monthly payments, he noticed that SeaWorld was still charging his credit card in March 2014. The suit included claims for breach of contract and for violations of the Electronic Funds Transfer Act, based on SeaWorld's automatic withdrawal of payments. According to Herman, SeaWorld's contract -- which wasn't available on his initial email receipt or the pass -- specified that it would only automatically renew and continue charging for yearly passes that weren't paid in full in less than a year, but he finished paying for the tickets by February. SeaWorld's move for partial summary judgment argued that if the court sided with the theme park's interpretation of the contract, then the customers' claim failed because they were obligated to make the additional monthly payments, and if the court sided with the customers' interpretation, the claim failed because the contract had terminated by the time the alleged breach occurred. The customers filed a summary judgment motion of their own in September, arguing their interpretation of the renewal provision. Then, in their Oct. 6 response to SeaWorld's bid for partial summary judgment, they renewed that stance and also argued that the contract was still in effect when the alleged breaches took place. "The EZ Pay contract's payment period began with a down payment on the date of purchase and, if the customer timely made all payments, concluded on the date 11 months later when the customer made the 12th and final payment the contract required," the response said. "Automatic renewal therefore took place approximately 11 months into the life of the contract, while it was still in effect." SeaWorld countered that the customers have ignored material facts in asserting that the theme park automatically renewed their one- year EZ Pay passes. Disputing this supposed fact, SeaWorld objected that the customers repeatedly misstate the terms of the contract because the EZ Pay contract says the contract will renew automatically and does not say that SeaWorld has a unilateral right to renew. "Only the plaintiffs -- and not SeaWorld -- have the contractual right to terminate the contract's auto-renewal provision," SeaWorld argued. Judge Scriven said SeaWorld was right that, under contract law, it could not have renewed the contracts without the customers' consent, but she also said the customers accurately pointed out that "is precisely why SeaWorld breached the renewal provision. "A breach, by definition, is an unauthorized act," the judge said. She also said that with its claim that it had not committed an act, SeaWorld overlooked that a contract can be breached by a failure to perform. Class counsel declined comment on April 18, and a representative for SeaWorld did not immediately respond to an inquiry. SeaWorld is represented by Colin C. Deihl -- colin.deihl@FaegreBD.com -- Ann E. Prouty -- ann.prouty@FaegreBD.com -- and Thomas W. Carroll -- thomas.carroll@FaegreBD.com -- of Faegre Baker Daniels LLP and Christopher T. Hill of Hill Rugh Keller & Main PL. The plaintiffs are represented by Paul R. Fowkes and Ryan C. Hasanbasic -- Ryan@DispartiLaw.com -- of Disparti Fowkes & Hasanbasic PA and James E. Felman and Katherine E. Yanes -- kyanes@kmf-law.com -- of Kynes, Markman & Felman PA. The case is Herman et al. v. SeaWorld Parks & Entertainment Inc., case number 8:14-cv-03028, in the U.S. District Court for the Middle District of Florida. SOUTHERN COPPER: "Lacey" Class Action in Discovery -------------------------------------------------- The case captioned, Carla Lacey and Barbara Siegfried, on behalf of themselves and all other similarly situated stockholders of Southern Copper Corporation, and derivatively on behalf of Southern Copper Corporation, is in discovery, Southern Copper Corporation said in its Form 10-K Report filed with the Securities and Exchange Commission on March 1, 2017, for the fiscal year ended December 31, 2016. A purported class action derivative lawsuit filed in the Delaware Court of Chancery was served on the Company and its Directors in February 2016 relating to the 2012 capitalization of 99.999% of MGE by Controladora de Infraestructura Energetica Mexico, S.A. de C.V., an indirect subsidiary of Grupo Mexico (the "CIEM Capitalization"), the Company's entry into a power purchase agreement with MGE in 2012 (the "MGE Power Purchase Agreement"), and the 2012 restructuring of a loan from the Company's Mexican Operations to MGE for the construction of two power plants to supply power to the Company's Mexican operations (the "MGE Loan Restructuring"). The action purports to be brought on behalf of the Company and its common stockholders. The complaint alleges, among other things, that the CIEM Capitalization, the MGE Power Purchase Agreement and the MGE Loan Restructuring were the result of breaches of fiduciary duties and the Company's charter. The Company has filed a response denying these allegations and is currently in the discovery process. Southern Copper Corporation is one of the largest integrated copper producers in the world. ST. BERNARD'S: "Citizen" Not Synonymous to "Resident", Court Says ----------------------------------------------------------------- Amy Jonker, Esq. -- ajonker@mauricewutshcer.com -- of Maurice Wutscher LLP, in an article for Lexology, reports that the U.S. Court of Appeals for the Eighth Circuit recently held that "citizen" is not synonymous with "resident" under the Class Action Fairness Act (CAFA), 28 U.S.C. 1332(d), such that the class action lawsuit at issue could not be remanded to state court under CAFA's "local controversy" exception but rather should remain in federal court. A copy of the opinion in Tammy Hargett v. St. Bernard's Hospital Inc, et al is available at: http://media.ca8.uscourts.gov/opndir/17/04/171339P.pdf The plaintiff was injured in a car accident and received treatment at a hospital, which required her to assign her Medicaid beneficiary rights to it. The hospital later contracted with a service provider to pursue any claims the plaintiff may have had against the responsible driver in lieu of collecting a reduced but certain payment from Arkansas Medicaid. The plaintiff sued the hospital and the service provider on behalf of a class of "Arkansas-Medicaid beneficiaries," asserting that their attempt to recover under an assignment of the plaintiff's rights violated Arkansas law and that thousands who had been treated across the state of Arkansas had been similarly damaged. The defendants removed the case to federal court under CAFA. The plaintiff moved to remand under CAFA's local controversy exception, 28 U.S.C. 1332(d)(4), and the trial court agreed that more than two-thirds of the proposed class were citizens of the state. The trial court noted that the plaintiff should amend to the complaint to assert that the class consisted of citizens rather than residents. The plaintiff amended the complaint as instructed and the trial court ordered the case remanded to state court. The defendants sought permission to appeal, which was granted. On appeal, the Eighth Circuit noted that the CAFA issue at hand was novel: how does the "resident" versus "citizen" distinction that appears in 28 U.S.C. 1332 play out in the local controversy exception? The Appellate Court provided its five guiding principles behind its reasoning. First, the Eighth Circuit noted, CAFA provides broad diversity jurisdiction over class actions and the local controversy exception is narrow so that, once the defendant establishes the CAFA jurisdictional requirements, it is the plaintiff's burden to establish the local controversy requirements and any doubt should be resolved against the plaintiff. Second, the Eight Circuit held, the terms "citizen" and "resident" must be differentiated as citizenship requires permanency and residency does not require "an intent to make a place a home." A person can be a resident of multiple states but a citizen of only one. Thus, the Court held, residency is insufficient to establish citizenship for diversity jurisdiction. Third, the Appellate Court noted, a court must assume that Congress intended to apply the accumulated, settled meanings of terms under common law unless the statute states otherwise. Here, the Eighth Circuit assumed Congress intended to use the common law meaning of the term "citizen" in CAFA. Fourth, at least one other ruling in the Seventh Circuit had addressed the issue of the meaning of "citizen" versus "resident" and had reached the same conclusion. Fifth, the Eighth Circuit noted, citizenship may be established by either defining the class as citizens (as opposed to residents) or by providing sound evidence of citizenship during class discovery, but cannot be based on "guesswork." The Appellate Court explained that the trial court erred by allowing the plaintiff to amend her class definition, which the Eighth Circuit deemed "guesswork," and wrongly resolved the doubt in the plaintiff's favor. The Appellate Court further pointed out that the trial court did not have the authority to permit the plaintiff to amend the complaint as the class definition prior to removal must include only local citizens in order for the local controversy exception to apply, and cited to section 1332(d)(7) which requires that for the local-controversy exception to apply, "class citizenship must be determined as of the date of the pleading giving federal jurisdiction." The Eighth Circuit concluded by pointing out that the plaintiff's lack of citizenship allegations did not defeat the district court's jurisdiction because the defendants pleaded in the notice of removal that the plaintiff was an Arkansas citizen, which was sufficient for federal jurisdiction. Accordingly, the trial court's remand order was reversed and the appeal was returned to the trial court for further proceedings. STELLAR MANAGEMNENT: 60 Tenants File Class Action Over J-51 Fraud ----------------------------------------------------------------- Julia Marsh, writing for New York Post, reports that nearly 60 tenants of the major Manhattan landlord Stellar Management have filed a class-action lawsuit saying the company has reaped millions in tax breaks while illegally gouging residents. The Manhattan Supreme Court suit says Stellar claims tax benefits under the J-51 program but then doesn't abide by rent- stabilization limits. "In one especially heinous example, Stellar Management re- stabilized an illegally deregulated unit at a rental amount 257 percent higher than at which it had previously been registered," according to a press release by the nonprofit Housing Rights Initiative. The group says Gov. Cuomo should do more to crack down on J-51 fraud. The program gives developers tax benefits in exchange for updating apartment buildings. A spokesman for Stellar said, "We have serious concerns about the validity of both the merits and motivations underlying this suit and will vigorously defend against these claims." STRAIGHT PATH: Says Zacharia Deal Subject to Definitive Agreement ----------------------------------------------------------------- Straight Path Communications Inc. said in its Form 10-Q filed with the Securities and Exchange Commission on March 10, 2017, for the quarter period ended January 31, 2017, that its $9.45 settlement of the Zacharia Action remains subject to entering in a definitive agreement and court approval. On November 13, 2015, a putative shareholder class action was filed in the federal district court for the District of New Jersey against Straight Path Communications Inc., and Davidi Jonas and Jonathan Rand (the "individual defendants"). The case is captioned Zacharia v. Straight Path Communications, Inc. et al., No. 2:15- cv-08051-JMV-MF, and is purportedly brought on behalf of all those who purchased or otherwise acquired the Company's common stock between October 29, 2013, and November 5, 2015. The complaint alleges violations of (i) Section 10(b) of the Exchange Act of 1934, as amended (the "Exchange Act") and Rule 10b-5 of the Exchange Act against the Company for materially false and misleading statements that were designed to influence the market relating to the Company's finances and business prospects; and (ii) Section 20(a) of the Exchange Act against the individual defendants for wrongful acts by controlling persons. The allegations center on the claim that the Company made materially false and misleading statements in its public filings and conference calls during the relevant class period concerning the Company's spectrum licenses and the prospects for its spectrum business. The complaint seeks certification of a class, unspecified damages, fees, and costs. The case was reassigned to Judge John Michael Vasquez on March 3, 2016. On April 11, 2016, the court entered an order appointing Charles Frischer as lead plaintiff and approving lead plaintiff's selection of Glancy Prongay & Murray LLP as lead counsel and Schnader Harrison Segal & Lewis LLP as liaison counsel. On June 17, 2016, lead plaintiff filed his amended class action complaint, which alleges the same claims. The defendants filed a joint motion to dismiss the complaint on August 17, 2016; the plaintiff opposed that motion on September 30, 2016, and the defendants filed their reply brief in further support of their motion to dismiss on October 31, 2016. On March 7, 2017, the Company and lead plaintiff in Zacharia v. Straight Path Communications Inc. et al., No. 2:15-cv-08051-JMV-MF (D.N.J.), entered into a binding memorandum of understanding to settle the putative shareholder class action and dismiss the claims that were filed against the defendants in that action. Under the agreed terms, the Company will provide for a $2.25 million initial payment (the "Initial Payment") and a $7.2 million additional payment (the "Additional Payment"). The Initial Payment will be paid into an escrow account within 15 days following preliminary court approval of the settlement, and will be fully covered by insurance policies maintained by the Company. The Additional Payment of $7.2 million will be paid within 60 days after the closing of a transaction to sell the Company's spectrum licenses as specified in the Consent Decree with the Federal Communications Commission dated January 11, 2017 (the "Consent Decree"), or, in the event that the Company pays the non-transfer penalty specified in the Consent Decree, within 60 days after that payment is paid. In any event, the Additional Payment will be payable no later than December 31, 2018. The settlement remains subject to entering in a definitive agreement and court approval. Straight Path Communications Inc., a Delaware corporation, was incorporated in April 2013. Straight Path owns 100% of Straight Path Spectrum, Inc. and Straight Path Ventures, LLC, and 84.5% of Straight Path IP Group, Inc. Straight Path Spectrum, LLC, holds fixed and mobile wireless spectrum. Straight Path Ventures is developing next generation wireless technology for 39 GHz. Straight Path IP Group owns intellectual property primarily related to communications over the Internet, and the licensing and other businesses related to this intellectual property. TETRAPHASE PHARMACEUTICALS: Awaits Ruling on Bid to Dismiss Suit ---------------------------------------------------------------- Tetraphase Pharmaceuticals, Inc., awaits ruling on its motion to dismiss a consolidated class action lawsuit pending in Massachusetts, according to the Company's March 13, 2017, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2016. The Company said: "In January 2016 and March 2016, two securities class action lawsuits were filed against us, our chief executive officer, our former chief operating officer and our former chief financial officer, in the United States District Court for the District of Massachusetts. In May 2016, the court consolidated the two lawsuits and appointed lead plaintiffs and lead counsel. The lead plaintiffs filed a consolidated amended complaint in July 2016 and filed a second consolidated amended complaint in August 2016. The second amended complaint is brought on behalf of an alleged class of those who purchased our common stock between March 5, 2015 and September 8, 2015, and alleges claims arising under Sections 10 and 20 of the Exchange Act of 1934, as amended. The complaint generally alleges that the defendants violated the federal securities laws by, among other things, making material misstatements or omissions concerning IGNITE2. The complaint seeks, among other relief, unspecified compensatory damages, attorneys' fees, and costs." "In October 2016, we filed a motion to dismiss the second amended complaint in its entirety, which plaintiffs have opposed. That motion is pending. We believe we have valid defenses against these claims, and will engage in a vigorous defense of such litigation." Tetraphase Pharmaceuticals, Inc., is a clinical-stage biopharmaceutical company using our proprietary chemistry technology to create novel antibiotics for serious and life- threatening multidrug-resistant infections. The Company is developing its lead product candidate, eravacycline, a fully synthetic fluorocycline, as an intravenous, or IV, and oral antibiotic for use as a first-line empiric monotherapy for the treatment of resistant and multidrug-resistant infections, including multidrug-resistant Gram-negative infections. TAKE-TWO INTERACTIVE: GTA Gamers Have Until May 8 to Amend Suit --------------------------------------------------------------- Daniel Siegal, Brian Amaral and Brandon Lowrey, writing for Law360, report that a California federal judge on April 17 again dismissed a putative class action alleging gamers were tricked into buying "Grand Theft Auto V" before its online multiplayer mode launched, ruling the alleged delay didn't harm gamers' wallets, but allowed "one final amendment" of the suit. Before a hearing in downtown Los Angeles, U.S. District Judge Virginia A. Phillips issued a written tentative ruling granting Take-Two Interactive Software Inc.'s motion to dismiss named plaintiffs Bruce McMahon and Christopher Bengston's proposed class action alleging the company falsely touted GTA V's online functionality the day it hit the market, even though it knew the feature wouldn't be available for two weeks. Judge Phillips had previously dismissed the suit with prejudice only to see the Ninth Circuit award the plaintiffs an extra life and revive the claims. Judge Phillips wrote on April 17 that the plaintiffs' complaint itself acknowledged that the price of the game did not drop from its $59.99 launch price until over a month after it was on sale -- and so even if the plaintiffs had waited to buy the game until the multiplayer mode was available, they wouldn't have saved any money. The judge noted that the plaintiffs had alleged they "perhaps" wouldn't have bought the game if they knew the true multiplayer launch date, but rejected the "speculative, half-hearted allegation" as not plausible. Nonetheless, Judge Phillips wrote she would allow an amended complaint to be filed. At the hearing, Rex Sofonio -- rex@sofoniolaw.com -- of Sofonio & Associates, representing the plaintiffs, told the judge his clients would take the opportunity to amend their complaint to flesh out their claims that had they known the multiplayer wouldn't be immediately available, they would have held off on buying the game entirely due to a new generation of gaming consoles -- the Playstation 4 and Xbox One -- being released only months after GTA V. Jeffrey S. Jacobson -- jjacobson@kelleydrye.com -- of Kelley Drye & Warren LLP, representing Take-Two, told Judge Phillips that GTA V wasn't even available on those new consoles for a full year after it was released. "If these plaintiffs want to allege they would have waited a year, that's fine, but I've been troubled by the class aspect of this . . . They plead themselves further and further into idiosyncrasy," he said. "It will never be a class action; it can't be given the way they've alleged it." Judge Phillips made her tentative ruling her final ruling, and ordered the plaintiffs to file their amended complaint by May 8. Messrs. McMahon and Bengston filed suit in Riverside County Superior Court in October 2013, weeks after GTA V was released. They alleged that the game's package, which included a thick white center stripe with the phrase "Featuring Grand Theft Auto Online" in black all-capital letters, led them and other gamers to believe they'd be able to play online immediately. The duo alleged that had they known otherwise, they wouldn't have paid $59.99 or possibly even bought the game at all. Not only did the package include false advertising, but Take-Two acted negligently and breached its warranty, according to the complaint. In January 2014 Judge Phillips dismissed the suit, finding the game's packaging never specifically promised the online feature would be available immediately or guaranteed a date by which the feature would be ready. In February 2016, the Ninth Circuit revived the case, finding that Judge Phillips abused her discretion by failing to give the gamers a chance to amend their complaint. The plaintiffs are represented by Jeffrey Lawrence of The Law Offices of Jeffrey R. Lawrence, Rex Sofonio of Sofonio & Associates and James R. Hawkins of James Hawkins PC. Take-Two is represented by Lee. S. Brenner -- lbrenner@kelleydrye.com -- Jeffrey S. Jacobson, James B. Saylor -- jsaylor@kelleydrye.com -- and Michael C. Lynch -- mlynch@kelleydrye.com -- of Kelley Drye & Warren LLP. The case is Bruce McMahon et al. v. Take-Two Interactive Software Inc. et al., case number 5:13-cv-02032, in the U.S. District Court for the Central District of California. THERANOS: Court Upholds Fraud Claims in Investor Class Action ------------------------------------------------------------- Hagens Berman disclosed that a U.S. District Judge on April 19 upheld fraud claims brought in an investor class-action lawsuit against Theranos, Elizabeth Holmes and Ramesh "Sunny" Balwani, allowing the lawsuit to continue for the proposed class of Theranos investors represented by Hagens Berman. The order given on Apr. 18, 2017, by U.S. Magistrate Judge Nathanael M. Cousins stated, "Here, plaintiffs list the specific newspaper articles that were part of the advertising campaign touting Theranos' technology . . . The Court finds these allegations to be reasonably specific and plausibly state a claim for fraud." Defendants have 14 days to answer the complaint. "We're pleased that the court saw through the smoke and mirrors of Theranos' extensive marketing tactics that duped investors into placing their bets on Holmes and her company," said Steve Berman, managing partner of Hagens Berman. "Theranos' promises were built on false statements, and we look forward to bringing this case on behalf of the thousands of investors who believed what they were told." If you purchased Theranos securities, directly or through a third- party, from July 29, 2013 through Oct. 5, 2016, contact Hagens Berman Sobol Shapiro LLP. For more information visit: https://www.hbsslaw.com/cases/Theranos or contact Reed Kathrein, one of the firm's partners on the case, by calling 510-725-3000 or emailing Theranos@hbsslaw.com. The complaint filed Nov. 28, 2016, in the U.S. District Court for the Northern District of California, states that Theranos and its officers set in motion a publicity campaign to raise billions of dollars for Theranos and themselves, and to induce investors to invest in Theranos, all the while knowing that its "revolutionary" blood test technology was essentially a hoax. Rather than being ready for commercial use, the finger-prick technology had not passed regulatory or other third-party scrutiny, was inaccurate and could only be run on a few of the hundreds of promised tests, the suit states. Theranos has now shut down all of its laboratories, and Walgreens has severed its ties to the company. As a result, investments of more than half a billion dollars raised since 2013 appear to have been lost, according to the firm. At the crux of the court's decision of upholding the investor case against Theranos was a finding that while plaintiffs did not directly purchase their securities from defendants, claims made by Theranos, Holmes and Balwani constituted fraud. "The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or 'scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage," the order cites. About Hagens Berman Hagens Berman Sobol Shapiro LLP -- http://www.hbsslaw.com-- is a consumer-rights class-action law firm with offices in 10 cities. The firm has been named to the National Law Journal's Plaintiffs' Hot List eight times. THERAPEUTICSMD INC: Faces Securities Class Action in Florida ------------------------------------------------------------ Shareholder rights law firm Robbins Arroyo LLP on April 18 disclosed that a class action complaint was filed against TherapeuticsMD, Inc. (NYSE MKT: TXMD) in the U.S. District Court for the Southern District of Florida. The complaint is brought on behalf of all purchasers of TherapeuticsMD securities between July 7, 2016 and April 9, 2017, for alleged violations of the Securities Exchange Act of 1934 by TherapeuticsMD's officers and directors. TherapeuticsMD operates as a women's health care product company. One of the company's lead product candidates is known as TX-004HR. View this information on the law firm's Shareholder Rights Blog: www.robbinsarroyo.com/shareholders-rights-blog/therapeuticsmd-inc TherapeuticsMD Accused of Misleading Investors About Its Clinical Program According to the complaint, on July 7, 2016, the company announced that it had filed its New Drug Application ("NDA") for TX-004HR with the U.S. Food and Drug Administration ("FDA") seeking approval of TX-004HR for the treatment of moderate to severe dyspareunia. The company subsequently stated that it was making excellent progress and that it was encouraged by its positive pivotal Phase 3 Rejoice Trial designed to assess the safety and efficacy of TX-004HR. The complaint alleges that the company failed to inform investors that its NDA submission was deficient and was not supported by the complete TX-004HR clinical program, which would likely cause a delay of the FDA's potential approval of the NDA. On April 10, 2017, TherapeuticsMD issued a press release revealing that, as part of its ongoing review of the NDA, the FDA "identified deficiencies that preclude discussion of labeling and postmarketing requirements/commitments at this time." The company further stated that the letter did not specify the deficiencies and that the company was not aware of the nature of the deficiencies. TherapeuticsMD noted that the FDA had previously set a target date of April 9, 2017, for communicating to the company proposed labeling and postmarketing requirements and commitments. On this news, TherapeuticsMD's stock fell $1.50 per share, or nearly 20%, to close at $6.20 per share on April 10, 2017. TherapeuticsMD Shareholders Have Legal Options Concerned shareholders who would like more information about their rights and potential remedies can contact attorney Leonid Kandinov at (800) 350-6003, LKandinov@robbinsarroyo.com, or via the shareholder information form on the firm's website. Robbins Arroyo LLP -- http://www.robbinsarroyo.com-- is a nationally recognized leader in shareholder rights law. The firm represents individual and institutional investors in shareholder derivative and securities class action lawsuits, and has helped its clients realize more than $1 billion of value for themselves and the companies in which they have invested. TRIPLE-S MANAGEMENT: Discovery Still Ongoing in Blue Cross MDL -------------------------------------------------------------- Discovery is still ongoing in an antitrust multidistrict litigation against Blue Cross Blue Shield, Triple-S Management Corporation said in its Form 10-K filed with the Securities and Exchange Commission on March 10, 2017, for the fiscal year ended December 31, 2016. Triple-S Salud, Inc. ("TSS"), is a co-defendant with multiple Blue Plans and the Blue Cross Blue Shield Association (BCBSA) in a multi-district class action litigation entitled In re Blue Cross Blue Shield Association Antitrust Litigation, filed on July 24, 2012. The plaintiffs allege that the exclusive service area (ESA) requirements of the Primary License Agreements with the Blue Plans violate antitrust laws. The plaintiffs in these suits seek monetary awards and, in some instances, injunctive relief barring ESAs. Those cases have been centralized in the United States District Court for the Northern District of Alabama. Prior to centralization, motions to dismiss were filed by several plans, including TSS. The parties have filed several pleas and presented their position in argumentative hearings before the court in connection with the motion to dismiss, which was ultimately dismissed without prejudice by the court. On April 6, 2015, plaintiffs filed suit in the United States District Court of Puerto Rico, which the Company believes does not preclude TSS' jurisdictional arguments. The Company has joined BCBSA in vigorously contesting these claims. Discovery is ongoing. No further updates were provided in the Company's SEC report. Triple-S Management Corporation is one of the most significant players in the managed care industry in Puerto Rico, serving approximately 1,017,000 members, with a 25% market share in terms of premiums written in Puerto Rico for the nine-month period ended September 30, 2016. The Company has the exclusive right to use the Blue Cross and Blue Shield name and mark throughout Puerto Rico, the U.S. Virgin Islands, Costa Rica, the British Virgin Islands and Anguilla and over 50 years of experience in the managed care industry. The Company offers a broad portfolio of managed care and related products in the Commercial, Medicaid and Medicare markets. TRIPLE-S MANAGEMENT: Procedures Ongoing in Suit vs. JUA and TSP --------------------------------------------------------------- Procedures are ongoing in a matter involving the Joint Underwriting Association in Puerto Rico and involving a subsidiary of Triple-S Management Corporation, according to the Company's March 10, 2017, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2016. On August 19, 2011, plaintiffs, purportedly a class of motor vehicle owners, filed an action in the United States District Court for the District of Puerto Rico against the Puerto Rico Joint Underwriting Association (JUA) and 18 other defendants, including Triple-S Propiedad (TSP), alleging violations under the Puerto Rico Insurance Code, the Puerto Rico Civil Code, the Racketeer Influenced and Corrupt Organizations Act (RICO) and the local statute against organized crime and money laundering. JUA is a private association created by law to administer a compulsory public liability insurance program for motor vehicles in Puerto Rico (CLI). As required by its enabling act, JUA is composed of all the insurers that underwrite private motor vehicle insurance in Puerto Rico and exceed the minimum underwriting percentage established in such act. TSP is a member of JUA. In this lawsuit, entitled Noemi Torres Ronda, et al v. Joint Underwriting Association, et al., plaintiffs allege that the defendants illegally charged and misappropriated a portion of the CLI premiums paid by motor vehicle owners in violation of the Puerto Rico Insurance Code. Specifically, they claim that because the defendants did not incur in acquisition or administration costs allegedly totaling 12% of the premium dollar, charging for such costs constitutes the illegal traffic of premiums. Plaintiffs also claim that the defendants, as members of JUA, violated RICO through various inappropriate actions designed to defraud motor vehicle owners located in Puerto Rico and embezzle a portion of the CLI premiums for their benefit. Plaintiffs seek the reimbursement of funds for the class amounting to $406,600 treble damages under RICO, and equitable relief, including a permanent injunction and declaratory judgment barring defendants from their alleged conduct and practices, along with costs and attorneys' fees. Discovery has been completed. Since 2011, TSP has been defending this claim and, jointly with other defendants, has filed several pleas in connection with the certification of the class and the dismissal of the claim. On December 17, 2015, three defendants filed a joint motion informing the court that said defendants are conducting negotiations to settle the claim and requested a 60-day period in other to continue the negotiations. Subsequently, the term to continue negotiations was extended until April 17, 2016. On April 22, 2016, plaintiff and the negotiating defendants filed a stipulation of settlement and release which is subject to approval of the court. TSP and the non-settling defendants have objected the filed settlement. Procedures are ongoing. Triple-S Management Corporation is one of the most significant players in the managed care industry in Puerto Rico, serving approximately 1,017,000 members, with a 25% market share in terms of premiums written in Puerto Rico for the nine-month period ended September 30, 2016. The Company has the exclusive right to use the Blue Cross and Blue Shield name and mark throughout Puerto Rico, the U.S. Virgin Islands, Costa Rica, the British Virgin Islands and Anguilla and over 50 years of experience in the managed care industry. The Company offers a broad portfolio of managed care and related products in the Commercial, Medicaid and Medicare markets. U.S. METALS: Motion to Dismiss Smelter Class Action Challenged -------------------------------------------------------------- Bill Wichert, writing for Law360, reports that Carteret, New Jersey, residents on April 16 shot back at three companies looking to sink a putative class action in New Jersey federal court accusing them of causing environmental contamination at a defunct smelting plant, rejecting their argument that the lawsuit failed to put each business on notice of the claims against it. The residents urged the court to deny a motion to dismiss from U.S. Metals Refining Co., Freeport-McMoRan Inc. and Amax Realty Development Inc., saying that the complaint is "sufficiently specific" as to what each company allegedly did and that detailed factual allegations are not required at such an early stage of the litigation. "The complaint reasonably suggests that all of the defendants owned land and operated the smelter from which pollutants were released," according to the residents' brief. "When read sensibly, and as a whole, the complaint adequately notifies the defendants of the claims against them. "Notice pleading standards do not require plaintiffs to articulate with precision 'how each defendant was involved in smelting, processing, refining, casting,' etc., as defendants demand," the brief states. "The details of defendants' processes are the subject of fact and/or expert discovery, and it cannot realistically be expected for plaintiffs to know such details of defendants' inner workings at this stage of the litigation." The lawsuit -- filed on Jan. 30 in New Jersey state court and later removed to federal court by the defendants -- alleges that the residents and their properties have been exposed to toxic and hazardous substances as a result of the smelting operations. Those materials include lead, arsenic and other contaminants, the lawsuit states. The contamination causes a decline in the residents' property values, deprives them of the free use and enjoyment of their properties and puts them at an increased risk of developing serious health problems, according to the lawsuit. The named plaintiffs are Leroy and Betty Nobles, and Juan and Betsy Duarte and their minor child, identified in the lawsuit as N.D. According to the defendants' corporate disclosure statements filed in the case, U.S. Metals Refining is a wholly owned subsidiary of Cyprus Amax Minerals Co., which also owns 100 percent of the stock of Amax Realty Development. Cyprus Amax is a wholly owned subsidiary of Freeport-McMoRan Corp., which in turn is a wholly owned subsidiary of Freeport-McMoRan Inc., according to the statements. In their motion to dismiss, the three companies asserted that the lawsuit fails to specify the alleged conduct of each business and instead lumps the parties together. The businesses claimed that each company is in a different position with respect to the facility and the alleged acts span more than 100 years, but the factual allegations and the legal theories in the complaint are improperly asserted against "Defendants" as a group. The companies argued that the complaint only differentiates between the defendants in a section titled "Parties." That section states that U.S. Metals Refining operated the plant from the early 1900s until about 1991 and that Freeport-McMoRan acquired U.S. Metals Refining and its smelter operations. The section also claims that Amax owned or operated a portion of the site during the time in which the contaminants were released. "Such a 'group pleading,' which 'lumps defendants together,' fails to provide each defendant fair notice of the claims asserted against it," according to the companies' brief. But the residents countered on April 16, saying that the defendants' "group pleading" argument lacks merit because they are related entities that each allegedly caused the contamination. "'Group pleading' is only disfavored when unrelated defendants are 'lumped' together with resulting confusion as to which parties are responsible for which actions. However, parties may be grouped into terms such as 'defendants' and still have proper notice under Rule 8(a) when plaintiffs assert their claims against all 'defendants' for their related conduct," according to residents' brief. "Here there is no basis at all for confusion amongst the defendants," the residents said. "Plaintiffs have pled that a mere three interrelated entities each owned and operated a particular piece of land and a smelter which caused the release of harmful contaminants into one contiguous class area, thereby giving rise to plaintiffs' claims." If the court identifies a defect in the complaint, however, the residents asked that they be allowed to amend the pleadings. Counsel for the parties could not immediately be reached for comment on April 17. The residents are represented by Steven J. German -- SGerman@germanrubenstein.com -- of German Rubenstein LLP. The companies are represented by David R. Kott -- dkott@mccarter.com -- of McCarter & English LLP. The case is Juan Duarte et al. v. U.S. Metals Refining Co., case number 2:17-cv-01624, in the U.S. District Court for the District of New Jersey. UBER TECH: Shortchanged Drivers, "Van" Suit Claims -------------------------------------------------- Helen Christophi, writing for Courthouse News Service, reported that in the latest in a string of lawsuits over the way Uber does business, a Los Angeles driver has accused the company of lining its pockets after it charges users more and pays drivers less for rides. In the federal class action filed on April 3, Uber driver Sophono Van claims that Uber manipulates the software in its app to calculate the "upfront" fare prices it displays to users based on a longer and slower route to a user's destination. Meanwhile, Uber displays a shorter and quicker route to drivers. This results in Uber charging users more than it lets on to drivers, so that it can keep the extra money instead of paying it out to them, according to Van. "This case represents a shocking example of an active, extensive, methodical scheme implemented worldwide specifically to defraud drivers," he said in his 23-page complaint. Uber's upfront pricing system, which it launched last year, calculates a user's total fare before, instead of after, a ride. According to Van, Uber assures both users and drivers that the upfront fare price is calculated using a base fare plus a per-mile and per-minute charge for the estimated time and distance of the ride. The company, he says, makes it seem as though the full fare is paid to drivers, minus service and booking fees. Van says that he and his fellow drivers wouldn't have worked for Uber had they known they weren't getting paid according to the actual fare, or would have demanded higher pay based on those fares. But they had no way of knowing that Uber was bilking them out of money that rightfully belonged to them, he says. "The manipulation of prices . . . is clever and sophisticated," he said in his complaint. "It is clear that the Uber defendants' deception was a purposeful, well-planned scheme to deceive drivers and users." Van seeks to certify a class of all Uber drivers who have worked in California, including those for UberPool, UberX, Uber Select, Uber Black and Uber SUV. He wants unspecified damages, and temporary and permanent restraining orders barring the company from charging deceptive upfront fare prices. He is represented by Daniel Miller of the Wilshire Law Firm in Los Angeles. Miller could not be reached for comment on April 5. An Uber spokesperson declined to comment. The case is captioned, SOPHANO VAN, individually and on behalf of all others similarly situated, Plaintiffs, vs. RASIER, LLC., a Limited Liability Company; RASIER-CA, LLC., a Limited Liability Company; and UBER TECHNOLOGIES, INC., a corporation; DOES 1 through 50, inclusive, Defendants. Case 2:17-cv-02550-DMG-JEM (C.D. Cal., April 4, 2017). Attorneys for Plaintiff Sophano Van: Bobby Saadian, Esq. Daniel B. Miller, Esq. WILSHIRE LAW FIRM 3055 Wilshire Blvd., 12th Floor Los Angeles, California 90010 Tel: (213) 381-9988 Fax: (213) 381-9989 UBER TECH: Can't Compel Arbitration in Cancellation Fees Action --------------------------------------------------------------- Helen Christophi, writing for Courthouse News, reports that denying Uber's motion to compel arbitration of phony cancellation fees it charges riders, a federal judge called the company's notice process of waiving the right to sue "deficient." U.S. District Judge Richard Seeborg found on April 17 that lead plaintiff Julian Metter showed he never agreed to Uber's terms of service and its arbitration agreement, because the terms of service alert was blocked by the keypad on Metter's smartphone. "Although the terms of service alert seems designed to put a registrant on inquiry notice of Uber's terms of service and to alert the registrant that registration will amount to affirmative assent to those terms, the keypad obstruction is a fatal defect to the alert's functioning," Judge Seeborg wrote in a 13-page order. "That defect turns what would be a sufficient notice process into a deficient one." Mr. Metter sued in November 2016 on behalf of a proposed class of Uber riders, claiming the company doesn't tell riders it might charge a cancellation fee. Uber sought to compel arbitration, claiming Mr. Metter agreed to its terms of service and waived his right to sue when he registered his account. Mr. Metter replied that a pop-up keypad prompting him to enter his credit card information obstructed the terms of service alert. Uber countered that Metter would have seen the alert had he scrolled to the bottom of the screen. Judge Seeborg didn't buy that argument, noting that Uber "never explains why Metter would have scrolled down to find a terms of service alert he was not otherwise aware of, especially when the registration and payment screen neither instructed him to scroll down nor presented any reason for him to do so." "Uber's assertions . . . are not sufficient to obviate any dispute of fact as to whether Metter was on notice of Uber's terms of service and thereby assented to them," Judge Seeborg wrote. "Metter's declaration that he never saw the terms of service alert is credible and consistent with the functioning of the Uber app." Mr. Metter's attorney Glenn Danas -- Glenn.Danas@CapstoneLawyers.com -- of Capstone Law in Los Angeles, said in an email on April 18 that he is pleased with the ruling. "We look forward to litigating our client's claims in court," he added. Judge Seeborg's ruling contrasts with a ruling he issued in January in a similar case, Michael Cordas v. Uber Technologies, Inc., which claimed that users had their rides automatically canceled and were charged cancellation fees for them. Michael Cordas, the lead plaintiff, also claimed he never saw the terms of service alert when he signed up for Uber. But Judge Seeborg took issue with Mr. Cordas' failure to identify a reason why he hadn't seen it and granted Uber's motion to force arbitration, finding the company's notice process sufficient. Uber is represented by William Stern -- wstern@mofo.com -- with Morrison & Foerster in San Francisco, who did not return a request for comment late on April 17. An Uber representative declined to comment. UBER TECHNOLOGIES: Faces Class Action Over Contractor Status ------------------------------------------------------------ Fatima Hussein, writing for IndyStar, reports that Uber Technologies can add another class-action lawsuit to its growing list of legal entanglements. In this case, a Hamilton County Uber driver challenges the notion that he is a contractor, as opposed to an employee of the San Francisco-based tech firm. Clinton Price, an Uber driver since 2014, claims that the company "has taken, and continues to take, unfair advantage of financially struggling Uber Drivers by misclassifying them as "Independent Transportation Providers" (i.e., independent contractors), when they are employees." Being classified as an employee over a contract worker would give Uber drivers such as Price the right to a minimum wage, overtime and benefits. The lawsuit is before a federal judge in the Southern District of Indiana. Uber has filed a motion to dismiss Price's case. Judge Sarah Evans Barker has yet to rule on the motion. Company officials have declined to comment on the suit. Mr. Price alleges, in a 43-page complaint filed in March, that Uber should treat its drivers as employees since it requires them to submit banking, residence, background and Social Security information. It also requires drivers to register their vehicle with the company. "If you tally up all the time," said Paul B. Maslo, the plaintiff's attorney, "these workers are not even making minimum wage." "Uber controls in terms and conditions of employment from what to wear to what route to take, to setting customer fares and Uber's fee. Uber has the authority to hire, fire and discipline Uber Drivers," according to court documents. Compounding legal troubles Mr. Price's lawsuit is one of an increasing number of complaints against the $60 billion company, ranging from claims of routinely tolerated sexual harassment, to claims that the company is spying on drivers for its competitor, Lyft. Among other employment violations, Mr. Price alleges that he and other Uber drivers qualify as employees under the federal Fair Labor Standards Act's six-factor test determining employment, which includes: the degree of control exercised by the alleged employer, the extent of the investments of the worker, the degree to which the worker's opportunity for profit and loss is determined by the alleged employer, the skill required of the job, the permanency of the relationship and the extent to which work performed is integral to the alleged employer's business. Mr. Price's lawyer states that he earned an effective wage of $4.52 an hour, and "when expenses are taken into account, Mr. Price's hourly wage is significantly lower." He also states that Uber is deceptive in its tipping policy. He is not alone in that sentiment. Most recently, the New York City Taxi and Limousine Commission granted a petition by the city's Independent Drivers Guild to create a rule that would require ride-hailing services to add in- app tipping. Also in a recent proposed class-action federal lawsuit filed in the Central District of California, plaintiffs claim Uber has devised a "clever and sophisticated" scheme in which it manipulates navigation data used to determine "upfront" rider fare prices while secretly short-changing the driver. Locally, another lawsuit was filed in the Southern District against Uber last June by William Scroggins over the company's lack of a tipping mechanism. Mr. Maslo represented Scroggins in his case, which was ultimately dismissed. Robert Brookins, a professor of labor law at Indiana University Robert H. McKinney School of Law, said there are an increasing number of lawsuits being filed by contract workers, namely Uber drivers, alleging that they are employees. The problem, he says, is that there is not a concrete legal precedent on the issue. "There are cases out there that give general standards," Mr. Brookins said, "but that issue is decided on a case-by-case basis considering the circumstances." Mr. Brookins added that while contract workers like Uber drivers could benefit from unionization efforts, it is an inherently difficult task when drivers largely work part time and have other forms of work to make ends meet. In 2015, Seattle passed an ordinance forcing drivers of the ride- sharing app to join the Teamsters union. Uber and Lyft both filed lawsuits, along with the Chamber of Commerce, arguing that the National Labor Relations Act does not allow independent contractors the right to unionize. District Judge Robert Lasnik issued the temporary restraining order, siding with Uber and Lyft. Economic impacts of contract work These cases point to a larger issue of worker rights in the future, as more work becomes contract or "gig" based, says Timothy Bond, a labor economics professor at Purdue University. Mr. Bond says that Uber's business model relies on circumventing cab rules that make taxi rides so expensive. "One of main ways they (Uber) are more successful is in undercutting prices, keep wages low and providing no benefits -- so those price savings are going to be passed back onto the consumer," Mr. Bond said. A Harvard Business Review story exploring the benefits and downsides of gig economy work states that "there are many more people willing to be Uber drivers than taxi drivers, in part because they can control when and how much they work." "Stay-at-home parents, retired people, the elderly, students, and people with disabilities now have more options to work as much as they want, and when, where, and how they want, in order to generate income, develop skills, or pursue a passion." Mr. Bond added that it would be exceptionally difficult for Uber drivers and gig workers to unionize, since "there are a whole bunch of people who are willing to jump in full time." He says the economy will see an increase in gig work as skilled workers depart the workforce and are not being replaced. "It's not a rosy picture," he said. Mr. Maslo, Price's attorney, said he hopes that as more people take on driving for Uber, they consider opting out of the company's arbitration agreement. "It must be done in the first 30 days of signing up and requires one email," he said. "It's absolutely critical that they opt out if they want to challenge the company." UFP TECHNOLOGIES: Has Gained $2.1MM From Polyurethane Foam Deal --------------------------------------------------------------- UFP Technologies, Inc., has recorded a gain of $2.1 million, which represents the full settlement amount it received from a class action lawsuit filed against polyurethane foam suppliers, according to the Company's March 10, 2017, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2016. The Company was a participant in a class action lawsuit against a number of polyurethane foam suppliers ("Defendants") that recently reached settlement. The suit was filed to recover damages and obtain injunctive relief for Defendants' alleged violations of the federal antitrust laws with respect to the fixing of prices of polyurethane foam sold from January 1, 1999 through August 2010. The Company recorded a gain of approximately $2.1 million during the year ended December 31, 2016, which represents the full settlement amount received. The settlement amount is recorded as "Material overcharge settlement" in the operating income section of the Consolidated Statements of Income. UFP Technologies, Inc., is an innovative designer and custom converter of foams, plastics, composites and natural fiber materials, providing solutions to customers primarily within the medical, automotive, consumer, electronics, industrial, and aerospace and defense markets. The Company converts these materials using laminating, molding, and fabricating manufacturing technologies. The Company's raw materials primarily consist of polyethylene and polyurethane foams, sheet plastics, pulp fiber, cross-linked polyethylene and reticulated polyurethane foams, fabric and foam laminates, and natural fiber materials. UNITED STATES: Army Veterans Sue Over PTSD Discharge Status ----------------------------------------------------------- Kent Pierce, writing for WTNH, reports that Iraq and Afghanistan combat veterans deserve a chance to change their discharge status if they suffered from Post Traumatic Stress Disorder, according to a lawsuit. That class-action suit was filed in federal court on April 17 against the Secretary of the Army. "I spent 14 months in Iraq, expecting that I was going to be blown up," said Army veteran Stephen Kennedy at the April 17 press conference announcing the suit. He came home from his deployment in one piece, "but that feeling never went away. I was still waiting for the I.E.D. with my name on it to go off and I was always on the lookout." That feeling led to drinking, cutting, fighting, and thoughts of suicide. The Army told him it did not have the resources to treat him, so it kicked him out with a less-than-honorable discharge. The trouble with that kind of discharge from the Army is that it means Mr. Kennedy was denied access to benefits, like the help needed to deal with what he now knows was PTSD. Mr. Kennedy is now part of a class action lawsuit brought by Yale Law School's Jerome N. Frank Legal Services Organization. "We are here to demand that the Army finally grant Mr. Kennedy and thousand of other like him the honorable discharge he's earned," said Yale Law student Catherine McCarthy. The same group filed a similar suit a couple years ago on behalf of Vietnam veteran Conley Monk of West Haven. His PTSD symptoms got him a less-than-honorable discharge from the Marines. The Yale suit got then-Secretary of Defense Chuck Hagel to write a memo changing the discharge status for Mr. Monk and 4 other veterans. "The Hagel memo worked for me," said Mr. Monk. "I am a prime example. My discharge was changed after 45 years." The Yale students studied lots of cases of soldiers trying to get their discharges upgraded and they found the Hagel memo was mentioned in a few of them, but they say it was not applied as it was supposed to be. This lawsuit is intended to fix that. "These veterans developed complications as a direct result of their service, and we're using the symptoms as a justification for taking away their benefits and labeling their service as less than honorable," Mr. Kennedy said. Mr. Kennedy is one of only two named plaintiffs, but the law students think this lawsuit could affect as many as 60,000 veterans of Iraq and Afghanistan. UNITED STATES: Trump Administration Wants Visa Class Action Nixed ----------------------------------------------------------------- Kelcee Griffis, writing for Law360, reports that President Donald Trump's administration has asked to shake off a suit over his now- halted travel bans brought by immigrants who said the executive orders unnecessarily and unconstitutionally disadvantaged them by disrupting visa processing. The government told a Washington federal court on April 14 that the proposed class of immigrants can't prove the orders hurt them and that they aren't entitled to relief, especially because the immigrants weren't visa holders. "The nonresident, unadmitted alien plaintiffs are not entitled to judicial review, and their petitioning relatives cannot demonstrate any cognizable injury fairly traceable to the Order unless and until their alien relatives have been found eligible for a visa and denied a waiver," the motion said. The case is just one of many related to Trump's now-revoked Jan. 27 executive order, which suspended the entry of travelers and immigrants from seven Muslim countries -- Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen -- for 90 days and froze the U.S. refugee program, among other measures. Its successor, issued on March 6 after the Ninth Circuit struck down the ban's first version, was put on hold due to other court rulings The immigrants had argued that the government wrongly revoked visas and stopped visa processing pursuant to the first order, which they said kept families apart and created physical hardships as well as emotional anguish. "Plaintiffs and proposed class members are suffering both emotionally and financially from these separations and from the existing lack of certainty and transparency in the immigrant visa process" caused by the executive order, according to an earlier motion by the plaintiffs. However, the government contended in its April 14 motion to dismiss that the president has been given broad authority to regulate immigration and that the now-halted bans were narrowly tailored for a national security interest. "That suspension enables this Administration to most effectively review the Nation's screening and vetting procedures to ensure they adequately detect terrorists," the filing said. The immigrants previously characterized the measures as a "blanket ban" and said the president exceeded his power that should have been constrained within "constitutional limits." Trump is allowed to regulate immigration regarding any individual alien or a subset of aliens but not an entire nationality, according to a February motion by the plaintiffs. A spokeswoman for the Department of Justice declined to comment on April 17. Counsel for the plaintiffs could not be immediately reached for comment on April 17. The plaintiffs are represented Glenda Melinda Aldana Madrid and Matt Adams of the Northwest Immigrant Rights Project, among others. The government is represented by Chad A. Readler and Stacey I. Young of the U.S. Justice Department. The case is Ali, et al. v. Trump, et al., case number 17-cv-00135, in U.S. District Court for the Western District of Washington. US COMMODITY: Suit by N.J. Carpenters Health Fund Remains Pending ----------------------------------------------------------------- The putative class action lawsuit titled New Jersey Carpenters Health Fund v. NovaStar Mortgage, ET AL., remains pending, the United States Commodity Index Funds Trust said in its Form 10-K filed with the Securities and Exchange Commission on March 10, 2017, for the fiscal year ended December 31, 2016. NEW JERSEY CARPENTERS HEALTH FUND V. NOVASTAR MORTGAGE, ET AL., is a putative class action lawsuit involving six different NovaStar offerings in which Wachovia Capital Markets, LLC served as one of the underwriters. Plaintiff alleges that the offering documents were materially misleading because they failed to disclose that NovaStar, which originated or acquired the loans backing the certificates, "systematically disregarded" its lending guidelines. In rulings in March 2011 and March 2012, the district court dismissed the action with prejudice, but in 2013, the 2nd Circuit reversed in part and vacated in part those rulings, reviving the action. In a ruling in February of 2015, the lower court further ruled that all six offerings are now at issue, and ordered the Plaintiff to file a third amended complaint. The amount of losses or potential liability in these matters is not known. The United States Commodity Index Funds Trust is a Delaware Statutory Trust formed on December 21, 2009. The Trust is a series trust formed pursuant to the Delaware Statutory Trust Act and is organized into four separate series. As of December 31, 2016, the Trust includes the United States Commodity Index Fund, a commodity pool formed on April 1, 2010 and first made available to the public on August 10, 2010, the United States Copper Index Fund, a commodity pool formed on November 26, 2010 and first made available to the public on November 15, 2011, the United States Agriculture Index Fund, a commodity pool formed on November 26, 2010 and first made available to the public on April 13, 2012, and the USCF Canadian Crude Oil Index Fund, which is currently in registration, and has not commenced operations. US GASOLINE: Forex Class Suits vs. RBC Pending in U.S. and Canada ----------------------------------------------------------------- Several putative class actions regarding foreign exchange trading involving RBC Capital Markets, LLC, are pending in the U.S. and Canada, United States Gasoline Fund, LP, and United States 12 Month Oil Fund, LP, said in their Form 10-K filed with the Securities and Exchange Commission on March 10, 2017, for the fiscal year ended December 31, 2016. On October 8, 2013, the Companies' general partner, United States Commodity Funds LLC ("USCF"), entered into a Futures and Cleared Derivatives Transactions Customer Account Agreement with RBC Capital Markets, LLC ("RBC Capital" or "RBC") to serve as UGA's and USL's futures commission merchant ("FCM"), effective October 10, 2013. This agreement requires RBC Capital to provide services to UGA and USL, as of October 10, 2013, in connection with the purchase and sale of Futures Contracts and Other Gasoline-Related Investments that may be purchased or sold by or through RBC Capital for UGA's and USL's accounts. For the period October 10, 2013 and after, the Companies pay RBC Capital commissions for executing and clearing trades on behalf of UGA and USL. Various regulators are conducting inquiries regarding potential violations of law by a number of banks and other entities, including RBC, regarding foreign exchange trading. Since 2015, RBC is a named defendant, along with many other entities, in pending putative class actions in the U.S. and Canada regarding foreign exchange trading. Based on the facts currently known, the Company says the ultimate resolution of these collective matters is not expected to have a material adverse effect on RBC. The United States Gasoline Fund, LP ("UGA") is a Delaware limited partnership with its main business office in Oakland, California. UGA is a commodity pool that issues limited partnership interests traded on the NYSE Arca, Inc. UGA operates pursuant to the terms of the Second Amended and Restated Agreement of Limited Partnership dated as of March 1, 2013 (as amended from time to time, the "LP Agreement"), which grants full management control to its general partner, United States Commodity Funds LLC ("USCF"). VERIFONE SYSTEMS: Continues to Defend Shareholder Suit in Israel ---------------------------------------------------------------- VeriFone Systems, Inc., continues to defend itself against a purported shareholder class action lawsuit pending in Israel, according to the Company's March 10, 2017, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended January 31, 2017. The Company said: "On May 12, 2015, a new class action complaint was filed against us in Israel alleging similar claims as the dismissed Israeli class action and alleging that Israeli shareholders were deprived of due process in the U.S. class action settlement proceedings. We are opposing the new class action and plaintiff's class certification motion on substantially the same grounds on which the previous case was dismissed. The court held a pretrial hearing on that motion on May 19, 2016 at which it requested additional information including expert reports, a position paper from the Israel Securities Authority ("ISA") and further briefing. In July 2016, the ISA submitted a position paper supporting our position regarding applicable law. Other requested information has also now been submitted, but the court has not yet ruled." VeriFone Systems, Inc., is a global leader in payments and commerce solutions. The Company provides expertise and solutions that add value at the retail point-of-sale and enable innovative forms of commerce. For 35 years, the Company has been a leader in designing, manufacturing, marketing and supplying a broad range of innovative payment solutions, including customer payments acceptance, connectivity between merchants and financial institutions, as well as security and comprehensive payment and commerce services. VOX MEDIA: Sued Over Americans with Disabilities Act Violation -------------------------------------------------------------- Phillip Sullivan Jr., on behalf of himself and all others similarly situated v. Vox Media, Inc., Case No. 1:17-cv-02581 (S.D.N.Y., April 11, 2017), is brought against the Defendants for violation of the Americans with Disabilities Act of 1990. Vox Media, Inc. operates a digital media company in New York. [BN] The Plaintiff is represented by: C.K. Lee, Esq. LEE LITIGATION GROUP, PLLC 30 East 39th Street, 2nd Floor New York, NY 10016 Telephone: (212) 465-1188 Facsimile: (212) 465-1181 E-mail: cklee@leelitigation.com WEIGHT WATCHERS: Appeal in "Roberts" Suit Underway -------------------------------------------------- An appeal in the case, Raymond Roberts v. Weight Watchers International, Inc., remains pending, Weight Watchers International, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on March 1, 2017, for the fiscal year ended December 31, 2016. On January 7, 2016, an OnlinePlus member filed a putative class action complaint against the Company in the Supreme Court of New York, New York County, asserting class claims for breach of contract and violations of the New York General Business Law. On February 5, 2016, the Company removed the case to the United States District Court, Southern District of New York. On March 18, 2016, the plaintiff filed an amended complaint, alleging that, as a result of the temporary glitches in the Company's website and app in November and December 2015, the Company has: (1) breached its Subscription Agreement with its OnlinePlus members; and (2) engaged in deceptive acts and practices in violation of Section 350 of the New York General Business Law. The plaintiff is seeking unspecified actual, punitive and statutory damages, as well as his attorneys' fees and costs incurred in connection with this action. The Company filed a motion to dismiss on May 6, 2016. The plaintiff filed his opposition papers on June 9, 2016 and the Company filed its reply papers on June 23, 2016. The Court granted the Company's motion to dismiss on November 14, 2016. On November 16, 2016, the plaintiff filed a timely notice of appeal of the Court's decision and on January 31, 2017, the plaintiff filed its brief in support of appeal. The Company's opposition brief was due to be filed on April 5, 2017. The Company believes that the plaintiff's appeal is without merit and will be denied in due course. Weight Watchers is a commercial provider of weight management services, operating globally through a network of Company-owned and franchise operations. WELLS FARGO: $50MM Mortgage Fees Class Action Settlement Okayed --------------------------------------------------------------- Ben Lane, writing for Housing Wire, reports that borrowers who had a mortgage serviced by Wells Fargo between May 6, 2005 and July 1, 2010 will soon receive their share of a $50 million settlement stemming from allegations that Wells Fargo overcharged borrowers for Broker Price Opinions during that period. The settlement, which was initially announced in October, stems from a class action lawsuit against Wells Fargo that claimed that the bank violated the law by charging borrowers more than the amount Wells Fargo paid for BPOs. The lawsuit claimed that Wells Fargo charged certain borrowers between $95 and $125 for the BPOs, instead of the typical cost of $50 or less. According to details provided by the plaintiffs' attorneys, the lawsuit is now finalized, as the settlement received final approval from U.S. District Judge Yvonne Gonzalez Rogers in the Northern District of California. Now that the settlement is finalized, each of the nearly 290,000 members of the class will automatically receive a check for their portion of the settlement within 60 days. According to the law firm of Baron & Budd, which represented the plaintiffs, the average payout per borrower will be roughly $120 - - more than double the fee markup each plaintiff paid. Wells Fargo said in October, and again in a statement to HousingWire on April 17, that it believes it did nothing wrong, but chose to settle the suit anyway. "We believe our practices related to Broker Price Opinions were proper and disagree with the claims in the lawsuit, but we agreed to settle the matter to avoid further litigation," a Wells Fargo spokesperson said in a statement to HousingWire. The settlement applies to any borrower who had a mortgage serviced by Wells Fargo during the time period referenced and paid the elevated price for the BPO, the lawyers said. Borrowers who qualify do not need to make a claim for their share of the settlement funds. A check will be mailed to class members at their last known address in Wells Fargo's records, the attorneys state. "For nearly five years, our partners Dan Alberstone and Roland Tellis and their team, worked tirelessly to secure this considerable settlement," said Russell Budd, president and managing shareholder of Baron & Budd. "The settlement they secured sends a powerful message that class action cases can provide meaningful, tangible recovery to hundreds of thousands of class members. I'm very pleased to know that our plaintiffs will receive compensation soon." WESTERN HEALTH: Plaintiffs' Lawyers to Conduct Discoveries ---------------------------------------------------------- Diane Crocker, writing for The Western Star, reports that lawyers representing the 1,043 people who had their medical records inappropriately accessed by a former Western Health employee will conduct discoveries with some managers at the health authority. The people, part of a class-action lawsuit against the health authority, had their files accessed between June 2011 and May 2012. The breach was made public in August 2012. It's been over two years since Newfoundland Supreme Court Justice William Goodridge, case management judge on the lawsuit, ruled the plaintiffs had grounds to proceed to a class action. The plaintiffs are represented by Bob Buckingham Law and Brothers and Associates Law Office. On April 17, Bob Buckingham said while there's not a lot to report on the case, it is proceeding. "It's not that we're just sitting there at all," he said by phone from his St. John's office. Mr. Buckingham said the lawyers for both sides are committed to moving the matter forward, but class actions can take some time to complete. Mr. Buckingham said both sides have retained experts, who are working on reports, and there has been an exchange of documentation and material. He added some discoveries with Western Health managers have already been completed. Mr. Buckingham said the discoveries are a "fact-finding process." The closed interviews take place outside of the courtroom and allow the lawyers to ask questions on certain issues, as to what transpired and what may be important to the case. Mr. Buckingham said the next step in the case will be the exchange of the expert reports and then discovery of the experts. There has still been no indication from the plaintiffs what they are seeking in damages. Mr. Buckingham said that is still being explored and the people involved have been asked to summarize their issues and experiences and what they consider damages. This could vary from one to another and could see the plaintiffs being put into categories. There has also been no discussion on whether or not the matter can be settled out of court. Mr. Buckingham said it's likely to be a while before the matter returns to court. Timeline Aug. 1, 2012 Western Health goes public with the information that 1,043 people's medical records had been inappropriately accessed between June 2011 and May 2012 and an employee had been fired. Aug. 18, 2012 Barbara Hynes files a class-action lawsuit against Western Health in the Supreme Court of Newfoundland and Labrador in Corner Brook. Aug. 24, 2012 A second class action is filed naming both Western Health and Donna Colbourne, the employee responsible for the privacy breach, as defendants. Valerie Dyke and Catherine Allen-Vater are listed as the representative plaintiffs. Feb. 8, 2013 A case management meeting is held in Newfoundland Supreme Court in Corner Brook. April 25, 2013 Donna Colbourne is charged under the Personal Health Information Act. Sept. 12, 2013 Donna Colbourne is removed as a defendant in the class action, and the two lawsuits are combined into one. Nov. 29, 2013 Donna Colbourne pleads not guilty and the matter is set for trial in provincial court. Dec. 5, 2013 A certification hearing on the class action is postponed. Feb. 6 and 7, 2014 The certification hearing on the class action is heard by Justice William Goodridge in Newfoundland Supreme Court in Corner Brook. April 30, 2014 Donna Colbourne changes her plea to guilty and a sentencing hearing is set for Aug. 26. Sept. 11, 2014 Donna Colbourne is fined $5,000. Nov. 17, 2014 Justice William Goodridge rules the matter can proceed as a class- action lawsuit. WESTERN RANGE: Judge Dismisses Shepherds' Wage Class Action ----------------------------------------------------------- Mike Heuer, writing for Courthouse News Service, reports that Peruvian shepherds who claim that they are woefully underpaid must amend their claims against a sheep company and the Western Range Association, a federal judge ruled. U.S. Magistrate Judge Robert Jones granted the' motions to dismiss on April 13, finding lead plaintiff Abel Cantaro Castillo's class action is not subject to federal jurisdiction. Mr. Cantaro and Alcides Inga Ramos, both of Peru, both working legally with visas, filed suit last year against the Western Range Association, El Tejon Sheep Company, and its owner, Melchor Gragirena. The association hired Mr. Cantaro through the H-2A visa program in 2007, and paid him and his fellow shepherds an average of only $1 to $2 per hour, far less than minimum wage, he said in the lawsuit. Mr. Cantaro says he and other shepherds were on call 24 hours a day seven days a week and subject to state and federal minimum wage laws. The Nevada minimum wage is $7.35 an hour, Mr. Cantaro says the shepherds were paid an adverse effect wage rate each month, in violation of Nevada law. The monthly adverse effect wage rate is a weighted hourly average for field and livestock workers that the U.S. Department of Agriculture publishes each year. The average is based on the department's quarterly wage survey. The Western Range Association and the El Tejon and Gragirena ranches in California and Nevada all moved to dismiss the federal claims. In response, Mr. Cantaro filed an amended complaint that addressed only Nevada's minimum wage laws, plus failure to pay wages due upon termination, breach of contract and unjust enrichment. Mr. Cantaro originally sought more than $10 million in unpaid wages for the class over six years, but Jones ruled that Nevada's two-year statute of limitations applies. In the amended complaint, Mr. Cantaro said the shepherds were owed $3.3 million over two years, but Jones said that amount does not meet the requirements of the U.S. Class Action Fairness Act. The Western Range Association and its co-defendants subsequently filed motions to dismiss the federal class action, for failure to state a claim. Jones granted the motions due to a lack of subject matter, and gave Mr. Cantaro 30 days to file an amended complaint. Mr. Cantaro is represented by Alexander Hood of Denver-based Towards Justice, which did not respond to email and phone requests for comment on April 17. YAHOO! INC: 43 Consumer Actions Filed over Security Incidents ------------------------------------------------------------- Yahoo! Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on March 1, 2017, for the fiscal year ended December 31, 2016, that approximately 43 putative consumer class action lawsuits have been filed to date against the Company in U.S. federal and state courts, and in foreign courts, relating to the security incidents. The Company said, "On September 22, 2016, we disclosed that a copy of certain user account information for approximately 500 million user accounts was stolen from Yahoo's network in late 2014 (the "2014 Security Incident"). The Company believes the user account information was stolen by a state-sponsored actor. The user account information taken included names, email addresses, telephone numbers, dates of birth, hashed passwords (the vast majority with the "bcrypt" hashing algorithm) and, in some cases, encrypted or unencrypted security questions and answers. Our forensic investigation indicates that the stolen information did not include unprotected passwords, payment card data, or bank account information. Payment card data and bank account information are not stored in the system that the investigation found to be affected. We have no evidence that the state-sponsored actor is currently in or accessing the Company's network." "On December 14, 2016, we disclosed that, based on our outside forensic expert's analysis of data files provided to the Company in November 2016 by law enforcement, we believe an unauthorized third party stole data associated with more than one billion user accounts in August 2013 (the "2013 Security Incident"). We have not been able to identify the intrusion associated with this theft, and we believe this incident is likely distinct from the 2014 Security Incident. For potentially affected accounts, the user account information stolen included names, email addresses, telephone numbers, dates of birth, hashed passwords (using the MD5 algorithm) and, in some cases, encrypted or unencrypted security questions and answers. The stolen information did not include passwords in clear text, payment card data, or bank account information. "In November and December 2016, we disclosed that our outside forensic experts were investigating the creation of forged cookies that could allow an intruder to access users' accounts without a password. Based on the investigation, we believe an unauthorized third party accessed the Company's proprietary code to learn how to forge certain cookies. The outside forensic experts have identified approximately 32 million user accounts for which they believe forged cookies were used or taken in 2015 and 2016 (the "Cookie Forging Activity"). We believe that some of this activity is connected to the same state-sponsored actor believed to be responsible for the 2014 Security Incident. The forged cookies have been invalidated by the Company so they cannot be used to access user accounts. "To date, approximately 43 putative consumer class action lawsuits have been filed against the Company in U.S. federal and state courts, and in foreign courts, relating to the Security Incidents. The plaintiffs, who purport to represent various classes of users, generally claim to have been harmed by the Company's alleged actions and/or omissions in connection with the Security Incidents and assert a variety of common law and statutory claims seeking monetary damages or other related relief. In addition, a putative stockholder class action has been filed against the Company, and certain current officers of the Company, asserting claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and seeking class certification, unspecified damages, interest, and an award of attorney's fees and costs. Four stockholder derivative actions have also been filed purportedly on behalf of the Company against current and former directors and officers. Additional lawsuits and claims related to the Security Incidents may be asserted by or on behalf of users, partners, shareholders, or others seeking damages or other related relief. Yahoo! Inc., together with its consolidated subsidiaries, is a guide to digital information discovery, focused on informing, connecting, and entertaining users through its search, communications, and digital content products. ZAFGEN INC: Appeal From "Bessler" Suit Dismissal Heard in March --------------------------------------------------------------- The hearing on the Plaintiffs' appeal from the dismissal of the lawsuit styled Aviad Bessler v. Zafgen, Inc. and Thomas E. Hughes, was held in March, according to the Company's March 10, 2017, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2016. On October 21, 2015, a purported stockholder of the Company filed a putative class action lawsuit in the U.S. District Court for the District of Massachusetts, against the Company and Thomas E. Hughes, captioned Aviad Bessler v. Zafgen, Inc. and Thomas E. Hughes, No. 1:15-cv-13618. An amended complaint was filed on February 22, 2016. The amended complaint alleges violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and SEC Rule 10b-5 based on allegedly false and misleading statements and omissions regarding the Company's clinical trials for its drug beloranib. The lawsuit seeks, among other things, unspecified compensatory damages in connection with the Company's allegedly inflated stock price between June 19, 2014 and October 16, 2015, as a result of those allegedly false and misleading statements, as well as punitive damages, interest, attorneys' fees and costs. On April 7, 2016, the Company filed a motion to dismiss the amended complaint. On August 9, 2016, the District Court granted the motion to dismiss and dismissed the amended complaint with prejudice. On August 12, 2016, plaintiffs filed a notice of appeal to the First Circuit Court of Appeals and, on January 5, 2017, the parties completed briefing in connection with the appeal. The hearing on the plaintiffs' appeal was held on March 7, 2017. The Company says it is unable to predict the ultimate outcome of this action and therefore cannot estimate possible losses or ranges of losses, if any. Zafgen, Inc., is a biopharmaceutical company dedicated to significantly improving the health and well-being of patients affected by metabolic diseases including type 2 diabetes and obesity. The Company is focused on developing novel therapeutics that treat the underlying biological mechanisms through the methionine aminopeptidase 2, or MetAP2, pathway. * Lanier-Hosted Fundraiser Casts Doubt About Tort Reform Bill ------------------------------------------------------------- Daniel Fisher, writing for Forbes, reports that a party scheduled in Houston is spreading anguish among tort-reform supporters who worry that Sen. Lindsey Graham of South Carolina will split with fellow Republicans to block bills designed to diminish the power of class-action lawyers, curb medical malpractice suits and open the books on asbestos settlements. Texas attorney Mark Lanier is co-hosting a fundraiser for Graham on April 20, spreading talk among conservatives that Graham has allied himself with plaintiff attorneys who have a huge financial incentive to block bills that sailed through the House of Representatives earlier this year. Sen. Graham sits on the Senate Judiciary Committee, which is split 11-9 between Republicans and Democrats. If he defects -- or even leads Chairman Chuck Grassley to think he's going to defect -- the committee would be stuck in a tie and the bills could die in committee. It's not an outlandish scenario. Sen. Graham is a former Air Force attorney who worked as a trial lawyer before being elected to the Senate in 2002. He boasts in his memoir about convincing a jury to award $5 million to a college student who was left paralyzed after a drunken car accident. "A courtroom is where the lowliest victim should find justice and the highest wrongdoer receive just punishment," Sen. Graham wrote. "That's what makes the law a noble profession, its impartiality and fairness." Trial lawyers also are an important economic force in South Carolina, and Sen. Graham has accepted large donations from firms including $33,551 from Motley Rice and $43,350 from Harrison White, according to Opensecrets.org. The House last month passed the Fairness in Class Action Litigation Act, which would make it harder for lawyers to win quick settlements by tightening the requirements for certifying a class of plaintiffs and pegging legal fees to the amount of money distributed instead of the theoretical value of a settlement. Another bill would make it easier to obtain sanctions against lawyers for pursuing frivolous cases. A third would require bankruptcy trusts that pay benefits to asbestos plaintiffs to open their records to the public, making it harder for lawyers to obtain money by suing companies under conflicting theories about how their client was exposed to asbestos. By sponsoring a fundraiser for Graham in Texas, Mr. Lanier raises questions about whether the South Carolina Republican will support these bills in the Senate. Mr. Lanier describes himself as a "lifelong Republican" but has won billions of dollars in jury verdicts over Vioxx, hip implants and other products. He told Texas Lawyer he "may better be positioned than a lot of plaintiff lawyers to catch the ear of Republicans" and convince them litigation rules should be left to state and local courts. An invitation for the event says seats are priced from $100 to $5,400. It is co-hosted by Kenneth Starr, the former special prosecutor who bedeviled President Bill Clinton but who also has worked on high-profile plaintiff cases. The event also features Texas Republican Congressmen Ted Poe and Mike McCaul. Plaintiff lawyers are working hard to portray the reform bills as undermining trial by jury, even though they address practices lawyers use almost exclusively to obtain larger settlements and fees in federal courts. Class actions rarely go to trial, for example, and the bulk of asbestos payments are also worked out in settlements and through bankruptcy trusts. In an e-mail to potential attendees reported by Texas Lawyer, Lanier said "no Republican is as solid on the right to a fair jury trial as Senator Lindsey Graham." Graham nevertheless voted in favor of the Class Action Fairness Act of 2005, a major reform that pushed many class actions into federal court where corporate defendants feel procedures are more in their favor. But Graham's memoir leaves little doubt about how he feels about jury trials generally. "Justice isn't delivered by an elite, by experts, by the high and mighty," he wrote. "A jury of your peers decides. Courtrooms are sacred places in a free society, where every citizen stands equal under the law." * Mintz Levin Attorneys Discuss Class Arbitration Issues -------------------------------------------------------- Gilbert A. Samberg, Esq., -- GASamberg@mintz.com -- of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., in an article for The National Law Review, reports that "Class arbitration" -- the utilization of a class action mechanism in an arbitration proceeding -- is considered by some to be the unicorn of ADR; desirable but elusive. Another view is that it is the Frankenstein's monster of ADR -- an anomalous hybrid of disparate parts that comprise a disconcerting and ultimately nonviable creation. And so let us ask, is "class arbitration" an oxymoron? Should it be viable given the essential nature of arbitration? And whither the emperor's jurisprudential clothes? We will explore various questions concerning "class arbitration" in a series of posts concerning the concept, its theoretical roots, the current state of the law, implementation of the mechanism, the significance and effects of a class arbitration award, etc. The United States Supreme Court has noted certain difficulties in trying to graft the codified and procedurally demanding judicial class action mechanism onto the relatively informal, flexible and presumably streamlined private dispute resolution process of arbitration. And the Justices have voiced reservations concerning the nature of "class arbitration." But the Supreme Court has not squarely addressed the question of whether a class arbitration mechanism is fundamentally fatally incompatible with the private contractual nature of arbitration or otherwise nonviable. The Dilemmas Every arbitration is essentially the creation of a private bilateral agreement. As such, one wonders how a group of non- contracting persons can be made parties to a private proceeding if they have not, or the contracting adverse party has not, or both have not, agreed to that. Conversely, how can a contracting party, who agreed to arbitrate certain disputes between it and a contract counter-party, be compelled to do so also against non- contracting, non-participating "class" members? Moreover, what would be the effect of an eventual arbitral award in such circumstances? Would it bind non-contracting parties, non- participating parties, and non-consenting (unwilling) parties? And would it be subject to vacatur under FAA Sec. 10(a)(4) because the arbitrator will have exceeded his power, which derives solely from the underlying arbitration agreement? 1. The Class Action Mechanism is a Creature of Codified Public Law A class action is a complex litigation protocol, created and described by Fed. R. Civ. P. 23 (and 28 U.S.C. ch. 114, Secs. 1711-15.) The principal purpose of the class action mechanism is "the efficiency and economy of litigation." Gen. Tel. Co. v. Falcon, 457 U.S. 147, 159 (1982). In addition to judicial economy, other justifications for it have included the following: (i) it provides a convenient and economical means of disposing of similar lawsuits; (ii) it spreads litigation costs among numerous litigants with similar claims; and (iii) protects a defendant from inconsistent obligations. U.S. Parole Comm'n v. Geraghty, 445 U.S. 338, 402-03 (1980). The class action rules may cause persons to become members of a litigating class, and thus parties to a litigation, without their affirmative consent and without the consent of their adversary. "Federal Rule of Civil Procedure 23 . . . was 'designed to allow an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.' Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979)." American Express Co. v. Italian Colors Restaurant, 133 S.Ct. 2304, 2309 (2013). And, as the law of the land, all litigants and potential litigants are subject ab initio to the potential employment of this mechanism; it is part of the judicial litigation landscape. However, neither Rule 23 nor any codified law like it applies to arbitrations. 2. Commercial Arbitration is a "Creature of Contract" It is an "overarching principle" that "[commercial] arbitration is a matter of contract." Italian Colors, 133 S.Ct. at 2309; AT&T Mobility v. Concepcion, 563 U.S. 333, 131 S.Ct. 1740, 1745 (2011); see, Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 67, 130 S.Ct. 2772 (2010). The Federal Arbitration Act ("FAA") requires the enforcement of such private contractual arrangements. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 625 (1985). And the courts are required to "rigorously enforce" arbitration agreements according to their terms, Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 221 (1985), "including terms that 'specify with whom [the parties] choose to arbitrate their disputes,' Stolt-Nielsen, v. Animal Feeds Int'l Corp. 559 U.S. 662 683 [(2010)]. . . ." Italian Colors, 133 S.Ct. 2309. Hence, an agreement to arbitrate can in principle be invoked only by and among persons who are mutually bound by it. On the premise that commercial arbitration is an ADR method whose wellspring is a bilateral agreement, in principle, only (a) the parties to an arbitration agreement and (b) others who are deemed by law to be bound by that agreement, may be compelled or permitted to arbitrate. Indeed, the mutual promises that comprise a bilateral arbitration agreement establish the jurisdiction of the arbitral panel with respect to the parties and the subject matter of the proceeding, identify the procedures to be employed, and constitute the basis for enforcing any resulting award. For example, "it is the language of the contract that defines the scope of disputes subject to arbitration." EEOC v. Waffle House, Inc., 534 U.S. at 289, citing Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 57 (1995). Yet "class arbitration," by its nature, (a) would give arbitrators jurisdiction over persons who are not parties to or deemed bound by that agreement, (b) would compel a contracting party to engage in a private dispute resolution proceeding against strangers to the agreement on which the proceeding is founded, and (c) would bind both the contracting parties and such strangers to an award, and the preclusive effects of that award, issued in a proceeding in which some or all did not agree to participate and from which there are few practical means of appeal. The Supreme Court Has Reservations Regarding "Class Arbitration" The Supreme Court has occasionally noted reservations concerning the compatibility of the class action mechanism with the arbitration process. See, e.g., Concepcion, 563 U.S. at 343, 131 S.Ct. at 1748; Stolt-Nielsen, 559 U.S. at 686; Italian Colors, 133 S.Ct. at 2319. For example, Justice Scalia observed that "requiring the availability of class-wide arbitration interferes with fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA." Concepcion, 131 S.Ct. at 1748. Indeed, the Court has indicated that the notion of "class arbitration" is confounding, in part because of the inconsistencies between the formalities and public aspects of class actions and the informality and privacy of arbitration. See, e.g., Concepcion, 131 S.Ct. at 1750-51; Stolt-Nielsen, 559 U.S. at 687. Thus, while considering the enforceability of a class action waiver in an arbitration clause, the Supreme Court has noted various characteristic differences between a bilateral arbitration and a class action. See, e.g., Concepcion, 131 S.Ct. at 1750-51; Stolt- Nielsen, 559 U.S. at 687; Italian Colors, 133 S.Ct. 2304 (2013). For example, while one of the attractive aspects of arbitration is that the parties are free to create an ADR process of their own choosing in an arbitration agreement, see, e.g., Mastrobuono, 514 U.S. at 57, a class action is necessarily formulaic and strictly follows prescribed procedural rules. The Court has also implied in dictum that it was concerned that "the arbitrator's award no longer purports to bind just the parties to a single arbitration agreement, but adjudicates the rights of absent parties as well." Stolt-Nielsen, 559 U.S. at 686. (But the Court did not elaborate on this, nor make it the basis for decision.) Unanswered Questions Recent decisions by the Supreme Court have largely concerned the enforceability of a purported waiver of class arbitration in a contractual arbitration clause. While expressing reservations about the notion of "class arbitration," the Court has not grappled with the question of whether it is ultimately an untenable oxymoron. Perhaps ideally, the question would be presented to the Court in the form of a challenge to the enforceability of a class arbitration award. But the Court has not been presented with such a case, and it has not had occasion to address the question of the jurisprudential viability of class arbitration. Accordingly, the Court's pertinent decisions thus far have implicitly assumed that class arbitration is indeed a viable mechanism. But many questions require judicial answers before we can confidently conclude whether "class arbitration" indeed has jurisprudential clothes and is sustainable. * Morningstar Explores Ways to Avert Class Action Liability ----------------------------------------------------------- Nevin E. Adams, Esq., in an article for NAPA, reports that Morningstar's response to the Labor Department's request for proposal contains an intriguing proposal of its own -- one that it says "could promote a best interest standard in lieu of using a private right of action framework." In addition to comments largely supportive of the fiduciary regulation and its implications for investors and the industry, Morningstar took advantage of the opportunity to comment on the Labor Department's proposed delay of the applicability date of the fiduciary rule to put forth a notion of a better way to ensure that financial institutions comply with the new standards, "instead of using a private right of action." Specifically, Morningstar has pitched the notion of: -- collecting data on all clients' portfolios across several objective factors; -- quantifying whether these portfolios aligned with a best interest standard of advice; and -- using this large set of data to identify and remediate issues. For example, Morningstar says that each client's portfolio could be scored on key factors such as: -- Investment quality, which could be measured using a quantitative fund rating, and expenses at the security, portfolio, and plan level. -- Asset allocation and "fit to goal," which could be evaluated based on portfolio efficiency and distance from a risk-based benchmark. -- The value of advice, which could be evaluated based on key factors such as whether an advisor considered risk tolerance and capacity, human capital, goals, other income sources, and dynamic withdrawal strategies in designing a client's investment strategy. Big Data The proposal explains that a third party that evaluated the aggregate data from thousands of portfolios could ensure that a financial institution's advisors consistently acted in clients' best interests. Moreover, that "prudent process such as the one described, combined with aggregate account-level data, could show that each investment, each portfolio, and each plan is within acceptable bounds for every investor advised by a firm," and could also validate that any investment, portfolio, or plan that is "out of bounds" has been brought into compliance through corrective action. Morningstar goes on to explain that systems such as this could ". . . replace the likely or potentially skewed samples used in lawsuits or standard audits, which sample a subset of accounts" and provide, via a "big-data audit," a positive affirmation of compliance. "That is, instead of having a financial institution responding to a lawsuit by 1) proving that the class of plaintiffs did not receive conflicted advice and 2) that if so, their experience was an exception, the financial institution would pre- emptively prove full compliance." The proposal states that using such data and analytics, every investor's account would be scored to identify those that are outliers or nonconforming to investor needs in terms of investment quality, portfolio fit and planning value. "Provided there was a standard of prudence and reasonableness, a financial institution could at any time provide that its entire book of business was either compliant or being brought into compliance." Litigation Costs Indeed, whatever benefits may result from the new fiduciary regulation, expanded litigation is a near certainty. Morningstar has estimated that the expenses from class action lawsuits stemming from the Best Interest Contract Exemption could range from approximately $70 million to $150 million annually, "adding an increase in compliance costs of about 5%-10% using the department's estimates," while noting that they "could be quite a bit higher in the near term as firms adjust to the rule and set up systems to determine, demonstrate, and document best interest recommendations." "The idea of substituting an audit for the potential class action liability is an idea definitely worth exploring," noted American Retirement Association CEO Brian Graff. "Frankly, any idea that is a substitute for the likely crippling impact of class action liability is worth exploring." ********* 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 * * *