/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/170518.mbx C L A S S A C T I O N R E P O R T E R Thursday, May 18, 2017, Vol. 19, No. 99 Headlines ADELPHIA SUPPLY: Judge Tosses TCPA Class Certification Motion ALDRIDGE PITE: Certification of Class Sought in "Defalico" Suit ALEXION PHARMA: Erste & PERSI Granted Lead Plaintiff Status AMERICAN AIRLINES: Unit Still Defends Antitrust CID Lawsuit AMERICAN AIRLINES: Private Party Antitrust Action Ongoing AMGEN INC: District Court Okays ERISA Class Action Suit Accord BANK OF NEW YORK: Beverly Appeals C.D. Cal. Ruling to 9th Circuit BANKERS LIFE: Third Circuit Appeal Filed in "Davis" Class Suit BAPTIST HEALTH: Seeks 8th Cir. Review of Order in "Whitley" Suit BAYER HEALTHCARE: Wins Order Closing Phillips Colon Health Suit BB&T: Class Action Over Unpaid Overtime Wages Can Proceed BLUENRGY: Texas Court Approves Class Action Settlement BOCA WEST: Country Club Residents File Class Action Over Loss BRIDGEPOINT EDUCATION: To Seek Dismissal of 3rd Amended Suit BRIDGEPOINT EDUCATION: "Nieder" Class Suit in Discovery BUDGET RENT-A-CAR: BCCA Reaffirms Principles of Preferability CATALYST CAPITAL: "Emerson" Sues Over Fund Mismanagement CATHOLIC GUARDIAN: "Fernandez" Suit Seeks Unpaid Wages, Damages CELGENE CORP: Feb. 2018 Completion of Fact Discovery in IUB Suit CHARTER COMMUNICATIONS: Merger Suit Settlement Has Final Approval CHARTER COMMUNICATIONS: Motion to Dismiss Merger Suit Pending CHEMICAL AND MINING: Court Narrows Claims in Securities Suit CHEMOURS CO: Third Circuit Appeal Filed in "Girardot" Class Suit CITIZENS INC: Gamboa's Securities Class Action Suit Underway COMMUNITY HEALTH: Expects Settlement Approval by June 30 COMMUNITY HEALTH: Oral Argument Held in Class Action Appeal CONAGRA BRANDS: Case to Test Gorsuch's Class Action Stance CONSOL ENERGY: Certification Order in Hale Suit Under Appeal CONSOL ENERGY: Class Certification Denied in Addison Litigation CONSOL ENERGY: Amended Complaint Filed in Fitzwater Litigation CR BARD INC: Continues to Face Various Hernia Product Claims CR BARD INC: Still Defends Women's Health Product Lawsuits CR BARD INC: Still Faces Various Filter Product Claims, Lawsuits CVS PHARMACY: Lowe Moves for Certification of Three TCPA Classes DAIKIN APPLIED: Park-Kim Appeals C.D. Cal. Ruling to 9th Circuit DOW CHEMICAL: Had US$130MM Liability in Rocky Flats Class Action DOW CHEMICAL: Levine Suit in Mich. District Court Has Concluded EQT PRODUCTION: Seeks 4th Cir. Review of Ruling in "Adkins" Suit EQUITY RESIDENTIAL: Can't Arbitrate Employees' Wage Class Action EXPEDIA INC: Hotels Consolidate Bait-and-Switch Scheme Case FEDERAL SIGNAL: Still Faces Firefighters Hearing Loss Cases FIELD & TECHNICAL: "Close" Sues Over Unpaid Wages Under FLSA FLAGSHIP CREDIT: Faces Class Action Over Unwanted Robocalls FLETCHER BUILDING: Faces Probe Over Non-Compliant Steel Mesh FMS INC: Vega Moves for Class Certification Under Campbell-Ewald FORD MOTOR CREDIT: Appeal in "Agrawal" Class Action Underway FREDDIE MAC: Ohio Public Employees' Suit Still Pending FREDDIE MAC: Appeals Court Wants Response to Panel Rehearing Bids FREDDIE MAC: Moved to Dismiss Jacobs and Hindes Suit GLOBALTRANZ ENTERPRISES: "Delnoce" Seeks Unpaid Overtime Pay GRAMERCY PROPERTY: Baltimore County Suit Dismissed GT ADVANCED: Must Face Shareholders' Class Action HERTZ GLOBAL: NJ Court Dismisses Securities Class Action HONGLI CLEAN: Rosen Law Firm Files Securities Class Action IDAHO: Correction Dep't Sued Over Failure to Provide Kosher Meals INDEPENDENT BANK GROUP: Unit Still Defends BOH-Related Lawsuit INTEL CORP: Still Defends McAfee Shareholder Class Litigation INVESTOR INCOME: Appeals Decision in "He" Suit to Sixth Circuit ITC HOLDINGS: May 25 Hearing on Preliminary Settlement Approval JOEL CARDIS: Faces Class Action Over Unsolicited Autodialed Calls LIONBRIDGE TECHNOLOGIES: Faces Securities Class Action LIVING ESSENTIALS: ABC Appeals N.D. Cal. Ruling to Ninth Circuit LLR INC: Wins Bid to Deny Webster's Class Certification Motion LOUISIANA: Class Action Over Lapsed Auto Coverage Fine Okayed LTD FINANCIAL: Certification of Class Sought in "Machnik" Suit LUSH INTERNET: Hite Appeals D. New Jersey Ruling to Third Circuit MADISON COUNTY, MS: Faces Class Action Over "Top-Down Program" MDL 2020: Aetna Still Defends Remaining Claims MASTERCARD INC: Accrued $705 Million Liability as Reserve MASTERCARD INC: Parties in Canadian Suit Negotiating Accord MASTERCARD INC: Still Defends ATM Surcharge Complaints MASTERCARD INC: Late 2017 Trial in U.S. Liability Shift Suit MICHIGAN: Sued Over Driver's License Suspensions Policy MICROSOFT CORP: Antitrust Class Suit in British Columbia Ongoing MICROSOFT CORP: Canadian Cell Phone Class Action Still Dormant MIDLAND FUNDING: Small Claims Court Case Waived Arbitration Right NATIONAL BOARD: Hutton Appeals From Md. Ct. Ruling to 4th Cir. NATIONAL BOARD: Mizrahi Appeals From D. Md. Ruling to 4th Cir. NATURAL HEALTH TRENDS: Consolidated Securities Action Underway NAVIENT CORP: Student Loan Borrower Class Action Settled in 2016 NAVIENT CORP: Consolidated Securities Class Lawsuit Underway NAVIENT CORP: TCPA Class Suit Settlement Hearing Set for July NOVOCURE LTD: Consolidated Securities Class Action Suit Underway NRG ENERGY: Plaintiffs Appeal Denial of Class Certification NRG ENERGY: Class Certification Hearings on June 19 and Aug. 21 NRG ENERGY: Opposition to Demurrers Due June 15 in "Braun" Suit NRG ENERGY: Oral Argument Set for June 20 in "Ahmed" Suit NRG ENERGY: Unit Defending Against "Griffoul" Suit NRG ENERGY: Defending Against "Rice" Suit in W.D. Pa. OASIS LEGAL: "Davis" Usury Case Removed to S.D. Ga. OHIO, USA: Palladeno's Certification Bid Denied; May Amend Suit PARKLANCE FINANCIAL: Ontario Court Approves Settlement Deal PAYPAL HOLDINGS: Still Defends Putative Securities Class Action PENNSYLVANIA, USA: Long Appeals Decision in Class Suit vs. SEPTA PEPPERIDGE FARM: Seeks 9th Cir. Review of Order in "Alfred" Suit PESEK INC: Hagaman Moves for Certification of Servers Class POLARIS INDUSTRIES: Still Faces Securities Class Action in Minn. PUMA BIOTECHNOLOGY: July 7 Lead Plaintiff Motion Deadline Set RICHARD FEARON: Graham Appeals Ruling; Mediation Call Today RE GAS DEVELOPMENT: Pa. Sup. Ct. Ruling in "Cardinale" Appealed RS&H INC: Class of Terminated Workers Certified in "Jones" Suit RWDT FOODS: Unpaid Overtime Sought in "Bottley" Labor Suit SAMSUNG ELECTRONICS: Seeks Dismissal of Overheating Phone Suit SAN JOSE, CA: Class of Firefighters Certified in "Wallace" Suit SCOTTRADE INC: Faces Class Action in Florida Over Data Breach SERVICE CORP: Vasquez Lawsuit on Units' Labor Practices Ongoing SERVICE CORP: Plaintiffs to Appeal Dismissal of "Moulton" Suit SERVICE CORP: Still Faces Class Action Alleging TCPA Violations SPROUTS FARMERS: Appeals Ruling in PERS of MS Suit to 9th Circuit ST. CHARLES: Class Action Settlement Gets Preliminary Court Okay TILE SHOP HOLDINGS: Court to Hear Class Suit Settlement in May 3 TOTAL GAS & POWER: 2nd Circuit Appeal Filed in "Anastasio" Suit UNITIL CORP: Individual Claims in Bellermann Case Remain Pending US BANCORP: Class Action Settlement Gets Preliminary Court OK US STEEL: Rosen Law Firm Files Securities Class Action USG CORP: Still Faces Wallboard Price Fixing Conspiracy Claims VALEANT PHARMACEUTICALS: Allergan Investors' Class Action Looms VINCE HOLDINGS: July 5 Lead Plaintiff Motion Deadline Set WASHINGTON: Settles State Patrol Troopers' Class Action for $15MM WASTE MANAGEMENT: Stony Hollow Landfill Fined Amid Class Action WESTERN UNION: Awaits Final Approval of "Douglas" Case Settlement WESTERN UNION: "Pincus" Class Action in Preliminary Stage WESTERN UNION: Bids to Consolidate 3 Suits Filed WHITE OAK: Class of Abattoir Workers Certified in "Taylor" Suit WW GRAINGER: Davies Complaint on TCPA Violations Still Ongoing * NC General Assembly Enacts Class Action Appeals Amendment ********* ADELPHIA SUPPLY: Judge Tosses TCPA Class Certification Motion ------------------------------------------------------------- Sam Reisman and Shayna Posses, writing for Law360, report that a proposed telemarketing class action against medical supply company Adelphia Supply Inc. was dealt a setback in Illinois federal court when a Chicago pharmacy's bid for class certification was denied without prejudice as premature. In a minute order U.S. District Judge Manish S. Shah tossed Bolling Prescription Lab Inc.'s motion for certification after it tried to initiate a class action against Adelphia for allegedly spamming the drug store and others with unsolicited fax advertisements in violation of the Telephone Consumer Protection Act of 1991. Bolling, which does business as Roseland Pharmacy, claimed that Adelphia submitted 20 unsolicited faxed advertisements from September to January touting discounted medical supplies and other pharmaceutical products, such as a '"Hot Deal!!' on blood pressure monitors and states," according to the complaint filed on Feb. 27. "Plaintiff and the other class members owe no obligation to protect their fax machines from defendants," Bolling said in its complaint. "Their fax machines are ready to send and receive their urgent communications, or private communications about patients' medical needs, not to receive defendants' unlawful advertisements." The TCPA, which was amended in 2005 by the Junk Fax Prevention Act, permits businesses to transmit unsolicited advertisements by fax to companies with whom they have no previous relationship provided that the ads prominently feature opt-out notices instructing the recipient on how to avoid receiving future ads. The statute requires that the opt-out notice must include language indicating "that failure to comply, within the shortest reasonable time, as determined by the Commission" is unlawful. According to an FCC consumer information webpage, a sender has 30 days to honor an opt-out request. Bolling claims that Adelphia violated the telemarketing statute by not including an opt-out notice compliant with this provision and other provisions mandating that the notice include two contact numbers for opting out, including one that must be toll-free. The proposed class membership was intended to extend to anyone who received the allegedly unsolicited Adelphia faxed ads after Feb. 27, 2013. The pharmacy said it filed its motion for class certification jointly with its original complaint to forestall any attempt from Adelphia to moot individual claims. In addition to the TCPA claim the pharmacy also brought a conversion claim, alleging that Adelphia unlawfully took over potential class members' machines for its own use. The pharmacy had requested statutory damages, trebled damages, injunctive relief, compensation and attorneys' fees. The parties did not respond on May 8 to requests for comment. Bolling is represented by Phillip A. Bock, Robert M. Hatch, Tod A. Lewis and David M. Oppenheim of Bock Hatch Lewis & Oppenheim LLC. Counsel information for Adelphia was not available on May 8. The case is Bolling Prescription Lab Inc. v. Adelphia Supply USA Inc., et al., case number 1:17-cv-01485, in the U.S. District Court for the Northern District of Illinois. [GN] ALDRIDGE PITE: Certification of Class Sought in "Defalico" Suit --------------------------------------------------------------- Lee Defalico moves the Court to certify the class described in the complaint of the lawsuit captioned LEE DEFALICO, Individually and on Behalf of All Others Similarly Situated v. ALDRIDGE PITE HAAN, LLP, Case No. 2:17-cv-00568-JPS (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. Dicta in the Supreme Court's decision in Campbell-Ewald Co. v. Gomez, 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 individual claim with the court and having the court enter judgment in the plaintiff's favor prior to the filing of a class certification motion, the Plaintiff asserts, citing Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion. Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), overruled on other grounds, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of that motion [for class certification] protects a putative class from attempts to buy off the named plaintiffs."). The Plaintiff is obligated to move for class certification to protect the interests of the putative class, the Plaintiff contends. More than one defendant has already attempted the scheme contemplated in Campbell-Ewald. See Severns v. Eastern Account Systems of Connecticut, Inc., Case No. 15-cv-1168, 2016 U.S. Dist. LEXIS 23164 (E.D. Wis. Feb. 24, 2016). Judge Randa denied the defendant's request to deposit funds on grounds that a class certification motion was pending. As the Motion to certify a class 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 short motion to certify and stay should suffice until an amended motion is filed, the Plaintiff argues. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=kqr1ZYgy 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 ALEXION PHARMA: Erste & PERSI Granted Lead Plaintiff Status ----------------------------------------------------------- Alexion Pharmaceuticals, Inc. disclosed in its Form 10-Q filed with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2017 that the U.S. District Court for the District of Connecticut awarded lead plaintiff status to Erste- Sparinvest KapitalanLagegesellschaft mbH (Erste) and the Public Employee Retirement System of Idaho (PERSI) on April 12, 2017 in securities class action lawsuits against the Company. In the fourth quarter 2016, several securities class action lawsuits were filed against the Company and its former officers in federal district court alleging violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. Section 78j(b), and Rule 10b-5, promulgated thereunder, alleging that defendants made misstatements and/or omissions concerning the Company's sales of Soliris. Erste and PERSI filed its shareholder putative class action with the Court on December 29, 2016, alleging that defendants made misrepresentations and omissions about Soliris between February 10, 2014 and December 9, 2016. The Company stated, "The litigation is in the early stages, and defendants have not yet responded to the complaint. Given the early stages of this litigation, management does not currently believe that a loss related to this matter is probable or that the potential magnitude of such loss or range of loss, if any, can be reasonably estimated." Alexion Pharmaceuticals, Inc., a biopharmaceutical company, develops and commercializes life-transforming therapeutic products. The Company serves distributors, pharmacies, hospitals, hospital buying groups, and other health care providers, as well as governments and government agencies in the United States, Europe, the Asia Pacific, and internationally. Alexion Pharmaceuticals, Inc. has agreements with X-Chem Pharmaceuticals (X-Chem) to identify novel drug candidates from X-Chem's proprietary drug discovery engine; and Moderna Therapeutics, Inc. (Moderna) that provides the option to purchase drug products for the development and commercialization of Moderna's messenger RNA therapeutics to treat rare diseases. The Company was founded in 1992 and is headquartered in New Haven, Connecticut. AMERICAN AIRLINES: Unit Still Defends Antitrust CID Lawsuit ----------------------------------------------------------- American Airlines Group Inc. (AAG) disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2017 that wholly-owned subsidiary American Airlines, Inc. (American) still defends itself in a consolidated class action suit related to an antitrust civil investigative demand by the United States Department of Justice (DOJ). In June 2015, American received a Civil Investigative Demand (CID) from the United States Department of Justice (DOJ) as part of an investigation into whether there have been illegal agreements or coordination of air passenger capacity. The CID seeks documents and other information from American, and other airlines have announced that they have received similar requests. American is cooperating fully with the DOJ investigation. In addition, subsequent to announcement of the delivery of CIDs by the DOJ, American, along with Delta Air Lines, Inc., Southwest Airlines Co., United Airlines, Inc. and, in the case of litigation filed in Canada, Air Canada, have been named as defendants in approximately 100 putative class action lawsuits alleging unlawful agreements with respect to air passenger capacity. The U.S. lawsuits have been consolidated in the Federal District Court for the District of Columbia. On October 28, 2016, the Court denied a motion by the airline defendants to dismiss all claims in the class actions. AAG said, "Both the DOJ investigation and these lawsuits are in their relatively early stages and American intends to defend these matters vigorously." American Airlines Group Inc., through its subsidiaries, operates as a network air carrier. It provides scheduled air transportation services for passengers and cargo. The company was formerly known as AMR Corporation and changed its name to American Airlines Group Inc. in December 2013. American Airlines Group Inc. was founded in 1934 and is headquartered in Fort Worth, Texas. AMERICAN AIRLINES: Private Party Antitrust Action Ongoing --------------------------------------------------------- American Airlines Group Inc. (AAG) said in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2017 that wholly-owned subsidiary American Airlines, Inc. (American) "intends to vigorously defend against the allegations" in an antitrust action filed by Carolyn Fjord, among other private parties. On December 9, 2013, a subsidiary of AMR Corporation (AMR) merged with and into US Airways Group, Inc. (US Airways Group), a Delaware corporation, which survived as a wholly-owned subsidiary of AAG, and AAG emerged from Chapter 11 (the Merger). Upon closing of the Merger and emergence from Chapter 11, AMR changed its name to American Airlines Group Inc. On December 30, 2015, in order to simplify AAG's internal corporate structure, US Airways, Inc. (US Airways), a wholly-owned subsidiary of US Airways Group, merged with and into American, with American as the surviving corporation. Prior to the Merger, a lawsuit captioned Carolyn Fjord, et al., v. US Airways Group, Inc., et al., was filed on July 2, 2013 in the United States District Court for the Northern District of California. The complaint named as defendants US Airways Group and US Airways, alleged that the effect of the Merger may be to create a monopoly in violation of Section 7 of the Clayton Antitrust Act, and sought injunctive relief and/or divestiture. On August 6, 2013, the plaintiffs re-filed their complaint in the Bankruptcy Court, adding AMR and American as defendants. On November 27, 2013, the Bankruptcy Court denied plaintiffs' motion to preliminarily enjoin the Merger. On August 19, 2015, after three previous largely unsuccessful attempts to amend their complaint, plaintiffs filed a fourth motion for leave to file an amended and supplemental complaint to add a claim for damages and demand for jury trial, as well as claims similar to those in the putative class action lawsuits regarding air passenger capacity. Thereafter, plaintiffs filed a request with the Judicial Panel on Multidistrict Litigation to consolidate the Fjord matter with the putative class action lawsuits, which was denied on October 15, 2015. A scheduling order setting deadlines for fact and expert discovery and the parties' summary judgment briefing (if any) was entered by the court on February 22, 2017. AAG said, "American believes this lawsuit is without merit and intends to vigorously defend against the allegations." American Airlines Group Inc., through its subsidiaries, operates as a network air carrier. It provides scheduled air transportation services for passengers and cargo. The company was formerly known as AMR Corporation and changed its name to American Airlines Group Inc. in December 2013. American Airlines Group Inc. was founded in 1934 and is headquartered in Fort Worth, Texas. AMGEN INC: District Court Okays ERISA Class Action Suit Accord -------------------------------------------------------------- Amgen Inc. disclosed in its Form 10-Q filed on April 27, 2017 with the U.S. Securities and Exchange Commission that, on April 5, 2017, the U.S. District Court for the Central District of California entered a final order approving the settlement of an Employee Retirement Income Security Act (ERISA) class action lawsuit against the Company, among others. On August 20, 2007, the ERISA class action lawsuit of Harris v. Amgen Inc., et al., was filed in the California Central District Court and named Amgen, Kevin W. Sharer, Frank J. Biondi, Jr., Jerry Choate, Frank C. Herringer, Gilbert S. Omenn, David Baltimore, Judith C. Pelham, Frederick W. Gluck, Leonard D. Schaeffer, Jacqueline Allred, Raul Cermeno, Jackie Crouse, Lori Johnston, Michael Kelly and Charles Bell as defendants. Plaintiffs claim that Amgen and the individual defendants breached their fiduciary duties and their duty of loyalty by continuing to offer the Amgen stock fund as an investment option in the Amgen Retirement and Savings Plan and the Retirement and Savings Plan for Amgen Manufacturing, Limited (the Plans) despite the alleged off-label promotion of both Aranesp(R) and EPOGEN(R) and despite a number of allegedly undisclosed study results that allegedly demonstrated safety concerns in patients using ESAs. Plaintiffs also allege that defendants breached their obligations under ERISA by not disclosing to plan participants the alleged off-label marketing and study results. On February 4, 2008, the California Central District Court dismissed the complaint with prejudice as to plaintiff Harris, who had filed claims against Amgen. The claims alleged by the second plaintiff, Ramos, were also dismissed but the court granted the plaintiff leave to amend his complaint. On February 1, 2008, the plaintiffs appealed the decision by the California Central District Court to dismiss the claims of both plaintiffs Harris and Ramos to the U.S. Court of Appeals for the Ninth Circuit (the Ninth Circuit Court). On May 19, 2008, plaintiff Ramos in the Harris v. Amgen Inc., et al., action filed another lawsuit captioned Ramos v. Amgen Inc., et al., in the California Central District Court. The lawsuit is another ERISA class action. The Ramos v. Amgen Inc., et al., matter names the same defendants in the Harris v. Amgen Inc., et al., matter plus four new defendants: Amgen Manufacturing, Limited; Richard Nanula; Dennis Fenton; and the Fiduciary Committee of the Plans. On July 14, 2009, the Ninth Circuit Court reversed the California Central District Court's decision in the Harris matter and remanded the case back to the California Central District Court. In the meantime, a third ERISA class action was filed by Don Hanks on June 2, 2009 in the California Central District Court alleging the same ERISA violations as in the Harris and Ramos lawsuits. On August 10, 2009, the Harris, Ramos and Hanks matters were consolidated by the California Central District Court into one action captioned Harris, et al. v. Amgen Inc. Plaintiffs filed an amended complaint on November 11, 2009 and added two additional plaintiffs, Jorge Torres and Albert Cappa. Amgen filed a motion to dismiss the amended/consolidated complaint, and on March 2, 2010, the California Central District Court dismissed the entire lawsuit without prejudice. Plaintiffs filed an amended complaint on March 23, 2010. Amgen then filed another motion to dismiss on April 20, 2010. On June 16, 2010, the California Central District Court entered an order dismissing the entire lawsuit with prejudice. On June 24, 2010, the plaintiffs filed a notice of appeal with the Ninth Circuit Court. On June 4, 2013, the Ninth Circuit Court reversed the decision of the California Central District Court and remanded the case back to the California Central District Court for further proceedings. On June 18, 2013, Amgen petitioned the Ninth Circuit Court for rehearing and/or rehearing en banc. The Ninth Circuit Court issued an amended opinion and denied Amgen's petition for rehearing and rehearing en banc on October 23, 2013. On June 30, 2014, the U.S. Supreme Court granted a petition for certiorari filed by Amgen and the other named defendants, vacated the judgment of the Ninth Circuit Court and remanded this case to the Ninth Circuit Court for reconsideration in light of the U.S. Supreme Court's decision in Fifth Third Bancorp v. Dudenhoeffer, decided June 25, 2014. On October 23, 2014, the Ninth Circuit Court reaffirmed its earlier decision of June 4, 2013. On November 13, 2014, Amgen filed a petition for rehearing en banc with the Ninth Circuit Court. On May 26, 2015, the Ninth Circuit Court denied Amgen's petition for rehearing en banc. On January 25, 2016, the U.S. Supreme Court granted Amgen's petition for certiorari, reversed the judgment of the Ninth Circuit Court and remanded the case back to the California Central District Court for further proceedings. On June 27, 2016, the parties reached an agreement in principle to settle this case for an immaterial amount. On November 29, 2016, the California Central District Court entered an order granting preliminary approval of the settlement. Amgen Inc. discovers, develops, manufactures, and delivers human therapeutics worldwide. It offers products for the treatment of illness in the areas of oncology/hematology, cardiovascular, inflammation, bone health, nephrology, and neuroscience. The company's products include Evenity to treat osteoporosis in postmenopausal women; Prolia to treat postmenopausal women with osteoporosis; Xgeva for the prevention of skeletal-related events; Repatha to treat coronary artery diseases; Enbrel to treat plaque psoriasis, rheumatoid arthritis, and psoriatic arthritis; Parsabiv to treat secondary hyperparathyroidism (sHPT); and Erenumab for the prevention of chronic migraine. Amgen Inc. was founded in 1980 and is headquartered in Thousand Oaks, California. BANK OF NEW YORK: Beverly Appeals C.D. Cal. Ruling to 9th Circuit ----------------------------------------------------------------- Plaintiff Patricia Beverly filed an appeal from a court ruling in the lawsuit styled Patricia Beverly v. The Bank of New York Mellon, et al., Case No. 8:16-cv-01928-DOC-KES, in the U.S. District Court for the Central District of California, Santa Ana. As previously reported in the Class Action Reporter, the lawsuit alleges violation of the Homeowner Bill of Rights, wrongful foreclosure, violation of the Rosenthal Fair Debt Collection Practices Act, violation of the Unfair Competition Law, and Violation of the Unfair Competition Law. The appellate case is captioned as Patricia Beverly v. The Bank of New York Mellon, et al., Case No. 17-55557, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Appellant Patricia Beverly's opening brief is due on October 2, 2017; -- Appellees Ditech Financial LLC, Does and The Bank of New York Mellon's answering brief is due on October 31, 2017; and -- Appellant's optional reply brief is due 14 days after service of the answering brief.[BN] Plaintiff-Appellant PATRICIA BEVERLY, individually and on behalf of all others similarly situated, is represented by: Christopher Ridout, Esq. ZIMMERMAN REED, LLP 2381 Rosecrans Avenue, Suite 328 Manhattan Beach, CA 90245 Telephone: (877) 500-8780 Facsimile: (877) 500-8781 E-mail: christopher.ridout@zimmreed.com Defendants-Appellees THE BANK OF NEW YORK MELLON, a New York corporation, as Trustee for the Certificateholders of The CWABS, Inc. Asset-Backed Certificates, Series 2005-16, FKA The Bank of New York, and DITECH FINANCIAL LLC, a Delaware limited liability company, FKA Green Tree Servicing, are represented by: Erik W. Kemp, Esq. SEVERSON & WERSON APC One Embarcadero Center San Francisco, CA 94111 Telephone: (415) 398-3344 Facsimile: (415) 956-0439 E-mail: ek@severson.com BANKERS LIFE: Third Circuit Appeal Filed in "Davis" Class Suit -------------------------------------------------------------- Plaintiff John J. Davis filed an appeal from a court ruling in the lawsuit titled John Davis v. Bankers Life & Casualty Co., et al., Case No. 2-15-cv-03559, in the U.S. District Court for the District of New Jersey. The lawsuit arose from insurance-related disputes. The appellate case is captioned as John Davis v. Bankers Life & Casualty Co., et al., Case No. 17-1919, in the United States Court of Appeals for the Third Circuit.[BN] Plaintiff-Appellant JOHN J. DAVIS, Individually and on behalf of all others similarly situated, is represented by: John A. Avery, Esq. David L. Menzel, Esq. KRAEMER BURNS MYTELKA LOVELL & KULKA 675 Morris Avenue, 3rd Floor Springfield, NJ 07081 Telephone: (973) 912-8700 Facsimile: (973) 912-8602 E-mail: javery@kraemerburns.com dmenzel@kraemerburns.com - and - David M. Hoffman, Esq. 28 Countryside Drive Baskin Ridge, NJ 07920 Telephone: (908) 608-0333 E-mail: dhoffman@david-hoffman-esq.com Defendant-Appellee BANKERS LIFE & CASUALTY CO. is represented by: Joseph L. Buckley, Esq. SILLS CUMMIS & GROSS PC One Riverfront Plaza Newark, NJ 07102 Telephone: (973) 643-7000 jbuckley@sillscummis.com - and - Adam J. Kaiser, Esq. ALSTON & BIRD LLP 90 Park Avenue, 15th Floor New York, NY 10016 Telephone: (212) 210-9465 Facsimile: (212) 210-9444 E-mail: adam.kaiser@alston.com Defendants-Appellees BANKERS LIFE & CASUALTY CO. and ASMA NORRIS are represented by: Richard H. Epstein, Esq. SILLS CUMMIS & GROSS PC One Riverfront Plaza Newark, NJ 07102 Telephone: (973) 643-7000 E-mail: repstein@sillscummis.com BAPTIST HEALTH: Seeks 8th Cir. Review of Order in "Whitley" Suit ---------------------------------------------------------------- Defendants Baptist Health and Baptist Health Hospitals filed an appeal from a court ruling in the lawsuit styled Brian Whitley v. Baptist Health, et al., Case No. 4:16-cv-00624-DPM, in the U.S. District Court for the Eastern District of Arkansas - Little Rock. As previously reported in the Class Action Reporter, the Plaintiff alleges unjust enrichment, breach of contract and violation of the Arkansas Deceptive Trade Practices Act. The appellate case is captioned as Brian Whitley v. Baptist Health, et al., Case No. 17-8020, in the United States Court of Appeals for the Eighth Circuit.[BN] Respondent Brian Whitley, Individually and on Behalf of All Others Similarly Situated, is represented by: Frank H. Bailey, Esq. BAILEY LAW FIRM 506 Hospital Drive Mountain Home, AR 72653-0000 Telephone: (479) 202-5200 E-mail: fbailey@baileyoliverlawfirm.com - and - Donald K. Campbell, III, Esq. BRAD HENDRICKS LAW FIRM 500 Pleasant Valley Drive, Suite C Little Rock, AR 72227-0000 Telephone: (501) 313-4967 - and - Kendel Grooms, Esq. CAMPBELL & GROOMS 8500 W. Markham Street Little Rock, AR 72205 Telephone: (501) 313-4967 E-mail: kendel@campbellgrooms.com - and - Geoff Hamby, Esq. Timothy Ryan Scott, Esq. BAILEY & OLIVER 3606 W. Southern Hills Boulevard Rogers, AR 72758 Telephone: (479) 202-5200 E-mail: ghamby@baileyoliverlawfirm.com rscott@baileyoliverlawfirm.com - and - Sach D. Oliver, Esq. BAILEY & OLIVER 2000 S.E. 14th Street Bentonville, AR 72712 Telephone: (479) 273-1445 Facsimile: (479) 657-6758 E-mail: soliver@baileyoliverlawfirm.com - and - Erik S. Heninger, Esq. Jeffrey P. Leonard, Esq. HENINGER & GARRISON 2224 First Avenue N. Birmingham, AL 35203 Telephone: (205) 326-3336 Facsimile: (205) 326-3332 E-mail: erik@hgdlawfirm.com jleonard@hgdlawfirm.com Petitioners Baptist Health and Baptist Health Hospitals are represented by: Robert L. Henry, III, Esq. James D. Robertson, Esq. BARBER LAW FIRM 425 W. Capitol Avenue, Suite 3400 Little Rock, AR 72201-3414 Telephone: (501) 372-6175 E-mail: rhenry@barberlawfirm.com jrobertson@barberlawfirm.com BAYER HEALTHCARE: Wins Order Closing Phillips Colon Health Suit --------------------------------------------------------------- The Hon. John Michael Vazguez entered an order in the consolidated lawsuit captioned In Re: Bayer Phillips Colon Health Probiotics Sales Practices Litigation, Case No. 2:11-cv-03017-JMV-MF (D.N.J.): -- granting Bayer Healthcare, LLC's motion for summary judgment; -- denying as moot the Plaintiffs' motion for class certification and motion to strike; and -- directing the Clerk of the Court to close the matter. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=ZZjKDjyh BB&T: Class Action Over Unpaid Overtime Wages Can Proceed --------------------------------------------------------- Richard Craver, writing for Winston-Salem Journal, reports that a federal judge has approved allowing a former employee's class- action lawsuit against BB&T Corp. to proceed on a conditional basis. Judge Terrence Boyle ruled in the case involving Ruby Sheffield, who had worked in the bank's Lumberton call center as a special assets collection employee from March 23, 2015, to March 9, 2016. She was paid $12.50 an hour. The lawsuit was filed Sept. 23 in the Eastern District of N.C. Ms. Sheffield's complaint said more than 100 collection or customer service employees work at the Lumberton center. The complaint centers on Sheffield's claims that employees are required to report to their work stations 10 minutes before each scheduled shift begins to log on and get their computer programs and application ready to function. Those duties are considered essential to the job. She claimed BB&T does not compensate employees for those 10 minutes, which she said was worth $15.63 in weekly compensation to her. She said she was paid for scheduled overtime at time and a half. The complaint requests overtime for all off-the-clock time past 40 hours per week. BB&T declined on May 8 to comment on pending litigation. In its complaint response filed Nov. 23, the bank denied Ms. Sheffield's off-the-clock payment claims and sought dismissal of the case without the option to refile. The complaint claims BB&T benefits from the off-the-clock practice "because it provides uninterrupted coverage and shorter hold times when a customer calls a customer service representative or when a representative calls a customer." "It also permits BB&T to provide the same service with fewer employees." The class-action lawsuit is pursuing: compensatory wage damages, including overtime; interest on the wages; a declaration of willful violation of the Fair Labor Standards Act; and an incentive award for Sheffield. Boyle wrote that both parties have agreed that the statute of limitations for the class-action period is three years prior to the date that a court-ordered motion is sent. Affected employees will be contacted by personal email or at their home address by mail. Employees will have 60 days upon the notice being sent out to opt-in to the complaint. [GN] BLUENRGY: Texas Court Approves Class Action Settlement ------------------------------------------------------ The Rosen Law Firm, P.A., disclosed that the United States District Court for the Southern District of Texas has approved the following announcement of a proposed class action settlement that would benefit purchasers of common stock of BlueNRGY Group Limited, f/k/a CBD Energy Limited (OTCMKTS:CBDEF): SUMMARY NOTICE OF PENDENCY AND PROPOSED CLASS ACTION SETTLEMENT TO: ALL PERSONS WHO PURCHASED OR OTHERWISE ACQUIRED BLUENRGY GROUP LIMITED, F/K/A CBD ENERGY LIMITED COMMON STOCK FROM JUNE 13, 2014 THROUGH OCTOBER 24, 2014, INCLUSIVE. YOU ARE HEREBY NOTIFIED, pursuant to an Order of the United States District Court for the Southern District of Texas, that a hearing will be held on July 27, 2017, at 9:00 a.m. before the Honorable Gray H. Miller, United States District Judge of the Southern District of Texas, 515 Rusk Street, Court Room 9-D, Houston, Texas 77002, for the purpose of determining: (1) whether the proposed Settlement of the claims in the above-captioned Action for consideration including the sum of $1,500,000 should be approved by the Court as fair, reasonable, and adequate; (2) whether the proposed plan to distribute the Settlement proceeds is fair, reasonable, and adequate; (3) whether the application of Lead Counsel for an award of attorneys' fees of up to one-third of the Settlement Amount, reimbursement of expenses of not more than $35,000, and an incentive payment to Lead Plaintiffs of no more than $10,000 in aggregate, should be approved; and (4) whether this Action should be dismissed with prejudice as set forth in the Stipulation and Agreement of Settlement dated April 14, 2017 (the "Settlement Stipulation"). If you purchased BlueNRGY Group Limited, f/k/a CBD Energy Limited ("CBD") common stock during the period from June 13, 2014 through October 24, 2014, both dates inclusive (the "Settlement Class Period"), your rights may be affected by this Settlement, including the release and extinguishment of claims you may possess relating to your ownership interest in CBD common stock. If you have not received a detailed Notice of Pendency and Proposed Settlement of Class Action ("Notice") and a copy of the Proof of Claim and Release Form, you may obtain copies by writing to or calling the Claims Administrator: CBD Energy Limited Litigation, c/o Strategic Claims Services, P.O. Box 230, 600 N. Jackson St., Ste. 3, Media, PA 19063; (Tel) (866) 274-4004; (Fax) (610) 565- 7985; info@strategicclaims.net, or going to the website, www.strategicclaims.net. If you are a member of the Settlement Class, in order to share in the distribution of the Net Settlement Fund, you must submit a Proof of Claim and Release Form postmarked no later than June 29, 2017 to the Claims Administrator, establishing that you are entitled to recovery. Unless you submit a written exclusion request, you will be bound by any judgment rendered in the Action whether or not you make a claim. If you desire to be excluded from the Settlement Class, you must submit to the Claims Administrator a request for exclusion so that it is received no later than July 6, 2017, in the manner and form explained in the Notice. All members of the Settlement Class who have not requested exclusion from the Settlement Class will be bound by any judgment entered in the Action pursuant to the Settlement Stipulation. Any objection to the Settlement, Plan of Allocation, or Lead Counsel's request for an award of attorneys' fees and reimbursement of expenses and award to Lead Plaintiffs must be in the manner and form explained in the detailed Notice and received no later than July 6, 2017, by each of the following: Clerk of the Court United States District Court Southern District of Texas 515 Rusk Street Houston, Texas 77002 LEAD COUNSEL: Phillip Kim, Esq. THE ROSEN LAW FIRM, P.A. 275 Madison Avenue, 34th Floor New York, NY 10016 COUNSEL FOR DEFENDANTS PILLINGER, BARLOW, MORRO, AND BOTTO: Gerard G. Pecht NORTON ROSE FULBRIGHT US LLP 1301 McKinney, Suite 5100 Houston, TX 77010-3095 COUNSEL FOR DEFENDANTS NATIONAL SECURITIES CORPORATION AND NORTHLAND SECURITIES, INC.: Paul R. Bessette KING & SPALDING LLP 401 Congress Avenue, Suite 3200 Austin, Texas 78701 If you have any questions about the Settlement, you may call or write to Lead Counsel: Phillip Kim, Esq. THE ROSEN LAW FIRM, P.A. 275 Madison Avenue, 34th Floor New York, NY 10016 (212) 686-1060 PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING THIS NOTICE. Dated: April 20, 2017 BY ORDER OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS [GN] BOCA WEST: Country Club Residents File Class Action Over Loss ------------------------------------------------------------- Dorothy Atkins, writing for Law360, reports that a proposed class of country club residents has hit a Boca Raton country club with a lawsuit in Florida federal court, alleging the club and its board's mismanagement lost residents $17 million and decimated property values in violation of state consumer protection statutes. Lead plaintiff Frank Calmes filed on May 3 putative class action against Boca West Country Club Inc., its attorney Larry Corman, and its board members Jerold Glassman and Philip Kupperman. Mr. Calmes alleges the trio's professional negligence caused the club to lose millions. [GN] BRIDGEPOINT EDUCATION: To Seek Dismissal of 3rd Amended Suit ------------------------------------------------------------ Bridgepoint Education, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 2, 2017, for the quarterly period ended March 31, 2017, that the defendants intend to file a third motion to dismiss Plaintiffs' third amended complaint in the case, Zamir v. Bridgepoint Education, Inc., et al. On February 24, 2015, a securities class action complaint was filed in the U.S. District Court for the Southern District of California by Nelda Zamir naming the Company, Andrew Clark and Daniel Devine as defendants. The complaint asserts violations of Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 promulgated thereunder, claiming that the defendants made false and materially misleading statements and failed to disclose material adverse facts regarding the Company's business, operations and prospects, specifically regarding the Company's improper application of revenue recognition methodology to assess collectability of funds owed by students. The complaint asserts a putative class period stemming from August 7, 2012 to May 30, 2014 and seeks unspecified monetary relief, interest and attorneys' fees. On July 15, 2015, the Court granted plaintiff's motion for appointment as lead plaintiff and for appointment of lead counsel. On September 18, 2015, the plaintiff filed a substantially similar amended complaint that asserts a putative class period stemming from March 12, 2013 to May 30, 2014. The amended complaint also names Patrick Hackett, Adarsh Sarma, Warburg Pincus & Co., Warburg Pincus LLC, Warburg Pincus Partners LLC, and Warburg Pincus Private Equity VIII, L.P. as additional defendants. On November 24, 2015, all defendants filed motions to dismiss. On July 25, 2016, the Court granted the motions to dismiss and granted plaintiff leave to file an amended complaint within 30 days. Plaintiffs subsequently filed a second amended complaint and the Company filed a second motion to dismiss on October 24, 2016, which was granted by the Court with leave to amend. Plaintiffs filed a third amended complaint on April 19, 2017 and the defendants intend to file a third motion to dismiss. Bridgepoint is a provider of postsecondary education services through its regionally accredited academic institutions, Ashford University(R) and University of the RockiesSM. Ashford University offers associate's, bachelor's and master's programs, and University of the Rockies offers master's and doctoral programs. BRIDGEPOINT EDUCATION: "Nieder" Class Suit in Discovery ------------------------------------------------------- Bridgepoint Education, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 2, 2017, for the quarterly period ended March 31, 2017, that the case, Nieder v. Ashford University, LLC, is in discovery. On October 4, 2016, Dustin Nieder filed a purported class action against Ashford University in the Superior Court of the State of California in San Diego. The complaint is captioned Dustin Nieder v. Ashford University, LLC and generally alleges various wage and hour claims under California law for failure to pay overtime, failure to pay minimum wages and failure to provide rest and meal breaks. The lawsuit seeks back pay, the cost of benefits, penalties and interest on behalf of the putative class members, as well as other equitable relief and attorneys' fees. The Company filed an answer denying the claims and the case is currently in discovery. Bridgepoint is a provider of postsecondary education services through its regionally accredited academic institutions, Ashford University(R) and University of the RockiesSM. Ashford University offers associate's, bachelor's and master's programs, and University of the Rockies offers master's and doctoral programs. BUDGET RENT-A-CAR: BCCA Reaffirms Principles of Preferability ------------------------------------------------------------- Sara D.N. Babich, Esq. -- sbabich@mccarthy.ca -- of McCarthy Tetrault LLP, in an article for Lexology, wrote that the BC Court of Appeal recently reaffirmed the principles of preferability in class action certification proceedings in the case of Vaugeois v Budget Rent-A-Car, wherein the certification judge had determined that a class proceeding was not the preferable forum to decide the disputes between vehicle renters who had allegedly been improperly charged for vehicle repairs. While the Court of Appeal indicated that the standard of review with respect to the preferability question was determinative of the appeal, Willcock JA's reasons illuminated several key points. First, the Court of Appeal restated that the standard of review is very high when an appeal court is reviewing a certification judge's decision on preferability. Willcock JA stated that special deference should be paid to the weighing of factors by the chambers judge and the appeal court must determine whether any errors in principle are present which are directly relevant to the conclusions reached. Second, where the certification judge considers the relevant elements of the three principal advantages of class proceedings, there will generally be no appealable error. In this case, the certification judge considered the three elements as follows: 1. Judicial economy While the difficulty in assessing individual claims factored heavily in the analysis, it was also clear to the Court of Appeal that the certification judge had considered the value of resolution of the common issues. The Court of Appeal also pointed out that the certification judge properly recognized that success for the class would fail to advance the cause of any individual plaintiff and the dismissal of the class action would not finally determine the claim of any class member. The Court of Appeal emphasized at para. 14 that the "fact the litigation would not finally determine the claims either way, must be weighed in assessing whether certification will serve the end of judicial economy" (emphasis in original). 2. Access to justice The Court of Appeal noted the arguments of the proposed class members that a class proceeding is the only way for most members to obtain any remedy and in particular the relief sought from the BC Supreme Court (rather than in Provincial Court proceedings). However, the certification judge concluded that individual trials would have been inevitable in this case since individual trials would have been required to determine liability for each claimant even if the common issue of conspiracy was proven. Few plaintiffs would have been spared the expense and risk of trial. The Court of Appeal also stated that the possibility that claims will not be advanced at all if the class action is not certified is a factor that should be considered at the certification stage. However, this depends on the respondents being inclined to settle claims if the common issues are determined in favour of the class and in this case it was apparent that the respondents would be unlikely to do so. 3. Behaviour modification The Court of Appeal also deferred to the reasoning of the certification judge that behaviour modification could be achieved by obtaining relief in Provincial Court for those claims which were not statute barred. The Court of Appeal also concluded that it was not a reviewable error for the certification judge to place weight on the ability of the Director to bring an action pursuant to the Business Practices and Consumer Protection Act [BPCPA]. The Court of Appeal in this case approved of certification judges drawing certain assumptions in assessing the preferability of class action proceedings. In particular, Willcock JA held that the certification judge did not err: in assuming that the Provincial Court would fairly use the tools at its disposal to resolve the disputes of claimants including the discretion available to judges pursuant to the Small Claims Rules to determine evidence required and procedure to be followed including with respect to the production of relevant information; and in assuming that the officers of the Legislature would use the available tools to protect consumers and effect behaviour modification, including the ability of the Director to bring an action pursuant to the BPCPA even where, as in this case, there is no indication that the Director will in fact take up the cause. This decision opens up the possibility of further permissible assumptions with respect to the preferability analysis, including where proposed class members may have alternate but uncertain avenues of relief. Case Information Vaugeois v Budget Rent-A-Car of B.C. Ltd., 2017 BCCA 111 Docket: CA42857 Date of Decision: March 8, 2017 [GN] CATALYST CAPITAL: "Emerson" Sues Over Fund Mismanagement -------------------------------------------------------- Roger Emerson, Mary Emerson and Martha J. Goodlett, individually and on behalf of all others similarly situated, Plaintiff, v. Mutual Fund Series Trust, Catalyst Capital Advisors LLC, Northern Lights Distributors LLC, Jerry Szilagyi, Tobias Caldwell, Tiberiu Weisz, Bert Pariser, Erik Naviloff and Edward Walczak, Defendants, Case No. 2:17-cv-02565 (E.D. N.Y., April 28, 2017) seeks damages and interest, rescission and/or a rescissory measure of damages, reasonable costs, including attorneys' fees and such equitable/injunctive or other relief for violation of the Securities Exchange Act of 1934. Plaintiffs purchased shares of the Catalyst Futures Fund between November 1, 2014 and April 28, 2017. They claim that the Fund's prospectuses and registration statements were inaccurate and did not disclose that the Catalyst Futures Fund took massive directional bets against U.S. stock market indexes through complex derivative instruments, thereby exposing investors to the heightened risk of loss of capital. [BN] Plaintiff is represented by: Samuel H. Rudman, Esq. Evan J. Kaufman, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 58 South Service Road, Suite 200 Melville, NY 11747 Tel: (631) 367-7100 Fax: (631) 367-1173 Email: srudman@rgrdlaw.com ekaufman@rgrdlaw.com - and - David C. Walton, Esq. Brian E. Cochran, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101-8498 Telephone: (619) 231-1058 Fax: (619) 231-7423 Email: davew@rgrdlaw.com bcochran@rgrdlaw.com - and - Frank J. Johnson, Esq. JOHNSON & WEAVER, LLP 600 West Broadway, Suite 1540 San Diego, CA 92101 Telephone: (619) 230-0063 Fax: (619) 255-1856 Email: frankj@johnsonweaver.com - and - W. Scott Holleman, Esq. JOHNSON & WEAVER, LLP 99 Madison Avenue, 5th Floor New York, NY 10016 Telephone: (212) 802-1486 Fax: (212) 602-1592 Email: scotth@johnsonweaver.com CATHOLIC GUARDIAN: "Fernandez" Suit Seeks Unpaid Wages, Damages --------------------------------------------------------------- Thania Fernandez, on behalf of herself, individually, and on behalf of all others similarly-situated, Plaintiff, v. Catholic Guardian Services f/k/a Catholic Guardian Society and Home Bureau and Craig Longley, individually, Grace Poppe, individually and Dolorez Ortiz, individually, Defendants, Case No. 1:17-cv-03161, (S.D. N.Y., April 28, 2017), seeks damages sustained as a result of unpaid wages, liquidated damages and any other statutory penalties, damages resulting from failure to provide accurate wage statements, compensation for lost wages, benefits and all other remuneration, whether back pay or front pay, whether legal or equitable, emotional distress damages and punitive damages, costs and disbursements incurred in connection with this action, including reasonable attorneys' fees, expert witness fees, and other costs and expenses, pre-judgment and post-judgment interest as provided by the fair Labor Standards Act and New York Labor Laws. Catholic Guardian is a New York non-profit corporation that places undocumented children with foster care sponsors where Plaintiff worked for Defendants as a foster care case planner, finalizing the custody process and monitoring children's health and well- being while under their parents' care. Plaintiff is represented by: Joan B. Lopez, Esq. Alexander T. Coleman, Esq. Michael J. Borrelli, Esq. BORRELLI & ASSOCIATES, P.L.L.C. 1010 Northern Boulevard, Suite 328 Great Neck, NY 11021 Tel. (516) 248-5550 Fax. (516) 248-6027 CELGENE CORP: Feb. 2018 Completion of Fact Discovery in IUB Suit ---------------------------------------------------------------- Celgene Corporation disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2017 that the completion of fact discovery in the class action lawsuit by the International Union of Bricklayers and Allied Craft Workers Local 1 Health Fund (IUB) is scheduled for February 1, 2018. Completion of expert discovery is set for July 15, 2018. On November 7, 2014, the International Union of Bricklayers and Allied Craft Workers Local 1 Health Fund (IUB) filed a putative class action lawsuit against the Company in the United States District Court for the District of New Jersey alleging that the Company violated various antitrust, consumer protection, and unfair competition laws by (a) allegedly securing an exclusive supply contract with Seratec S.A.R.L. so that Barr Laboratories (Barr) allegedly could not secure its own supply of thalidomide active pharmaceutical ingredient; (b) allegedly refusing to sell samples of the Company's THALOMID(R) and REVLIMID(R) brand drugs to various generic manufacturers for the alleged purpose of bioequivalence testing necessary for ANDAs to be submitted to the FDA for approval to market generic versions of these products; and (c) allegedly bringing unjustified patent infringement lawsuits against Barr and Natco Pharma Limited in order to allegedly delay those companies from obtaining approval for proposed generic versions of THALOMID(R) and REVLIMID(R). IUB, on behalf of itself and a putative class of third party payers, is seeking injunctive relief and damages. On February 6, 2015, the Company filed a motion to dismiss IUB's complaint. On March 3, 2015, the City of Providence filed a similar putative class action making similar allegations. Both IUB and Providence, on behalf of themselves and a putative class of third party payers, are seeking injunctive relief and damages. Providence agreed that the decision in the motion to dismiss IUB's complaint would apply to the identical claims in Providence's complaint. A supplemental motion to dismiss Providence's state law claims was filed on April 20, 2015. On October 30, 2015, the court denied the Company's motion to dismiss on all grounds. The Company stated, "Celgene filed its Answer to the IUB and Providence complaints on January 11, 2016. The completion of fact discovery and expert discovery is scheduled for February 1, 2018 and July 15, 2018, respectively. No trial date has been set. We intend to vigorously defend against IUB and Providence's claims." Celgene Corporation discovers, develops, and commercializes therapies to treat cancer and inflammatory diseases worldwide. The Company was founded in 1980 and is headquartered in Summit, New Jersey. CHARTER COMMUNICATIONS: Merger Suit Settlement Has Final Approval ----------------------------------------------------------------- Charter Communications, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 2, 2017, for the quarterly period ended March 31, 2017, that the court has granted final approval of the settlement in the merger class action lawsuit. On May 18, 2016, the transactions contemplated by the Agreement and Plan of Mergers dated as of May 23, 2015 (the "Merger Agreement"), by and among Time Warner Cable Inc. ("Legacy TWC"), Charter Communications, Inc. prior to the closing of the Merger Agreement ("Legacy Charter"), CCH I, LLC, previously a wholly owned subsidiary of Legacy Charter and certain other subsidiaries of CCH I, LLC were completed (the "TWC Transaction," and together with the Bright House Transaction described below, the "Transactions"). As a result of the TWC Transaction, CCH I, LLC became the new public parent company that holds the operations of the combined companies and was renamed Charter Communications, Inc. As of the date of completion of the Transactions, the total value of the TWC Transaction was approximately $85 billion, including cash, equity and Legacy TWC assumed debt. In 2014, following an announcement by Comcast and Time Warner Cable Inc. ("Legacy TWC"), of their intent to merge, Breffni Barrett and others filed suit in the Supreme Court of the State of New York for the County of New York against Comcast, Legacy TWC and their respective officers and directors. Later five similar class actions were consolidated with this matter (the "NY Actions"). The NY Actions were settled in July 2014, however, such settlement was terminated following the termination of the Comcast and TWC merger in April 2015. In May 2015, Charter and TWC announced their intent to merge. Subsequently, the parties in the NY Actions filed a Second Consolidated Class Action Complaint (the "Second Amended Complaint"), removing Comcast as a defendant and naming TWC, the members of the TWC board of directors, Charter and the merger subsidiaries as defendants. The Second Amended Complaint generally alleged, among other things, that the members of the TWC board of directors breached their fiduciary duties to TWC stockholders during the Charter merger negotiations and by entering into the merger agreement and approving the mergers, and that Charter aided and abetted such breaches of fiduciary duties. The complaint sought, among other relief, injunctive relief enjoining the stockholder vote on the mergers, unspecified declaratory and equitable relief, compensatory damages in an unspecified amount, and costs and attorneys' fees. In September 2015, the parties entered into a memorandum of understanding ("MOU") to settle the action. Pursuant to the MOU, the defendants issued certain supplemental disclosures relating to the mergers on a Form 8-K, and plaintiffs agreed to release with prejudice all claims that could have been asserted against defendants in connection with the mergers. The settlement is conditioned on, among other things, approval by the New York Supreme Court. That court gave preliminary approval to the settlement in October 2016 and granted final approval in March 2017. CHARTER COMMUNICATIONS: Motion to Dismiss Merger Suit Pending ------------------------------------------------------------- Charter Communications, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 2, 2017, for the quarterly period ended March 31, 2017, that the Court has not yet ruled upon Charter's motion to dismiss a merger class action lawsuit. On May 18, 2016, Legacy Charter and Advance/Newhouse Partnership ("A/N"), the former parent of Bright House Networks, LLC ("Bright House"), completed their previously announced transaction, pursuant to a definitive Contribution Agreement (the "Contribution Agreement"), under which Charter acquired Bright House (the "Bright House Transaction") for approximately $12.2 billion consisting of cash, convertible preferred units of Charter Holdings and common units of Charter Holdings. Pursuant to the Bright House Transaction, Charter became the owner of the membership interests in Bright House and the other assets primarily related to Bright House (other than certain excluded assets and liabilities and non-operating cash). In August 2015, a purported stockholder of Charter, Matthew Sciabacucchi, filed a lawsuit in the Delaware Court of Chancery, on behalf of a putative class of Charter stockholders, challenging the transactions between Charter, TWC, A/N, and Liberty Broadband announced by Charter on May 26, 2015 (collectively, the "Transactions"). The lawsuit names as defendants Liberty Broadband, Charter, the board of directors of Charter, and New Charter. Plaintiff alleged that the Transactions improperly benefit Liberty Broadband at the expense of other Charter shareholders, and that Charter issued a false and misleading proxy statement in connection with the Transactions. Plaintiff requested, among other things, that the Delaware Court of Chancery enjoin the September 21, 2015 special meeting of Charter stockholders at which Charter stockholders were asked to vote on the Transactions until the defendants disclosed certain information relating to Charter and the Transactions. The disclosures demanded by the plaintiff included (i) certain unlevered free cash flow projections for Charter and (ii) a Form of Proxy and Right of First Refusal Agreement ("Proxy") by and among Liberty Broadband, A/N, Charter and New Charter, which was referenced in the description of the Second Amended and Restated Stockholders Agreement, dated May 23, 2015, among Charter, New Charter, Liberty Broadband and A/N. On September 9, 2015, Charter issued supplemental disclosures containing unlevered free cash flow projections for Charter. In return, the plaintiff agreed its disclosure claims were moot and withdrew its application to enjoin the Charter stockholder vote on the Transactions. Charter has filed a motion to dismiss this litigation but the court has not yet ruled upon it. Charter denies any liability, believes that it has substantial defenses, and intends to vigorously defend this suit. CHEMICAL AND MINING: Court Narrows Claims in Securities Suit ------------------------------------------------------------ Chemical and Mining Company of Chile Inc. a/k/a Sociedad Quimica y Minera de Chile S.A. (SQM) disclosed in its Form 20-F filed with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2016, that the United States District Court for the Southern District of New York issued an opinion and order on March 28, 2017 denying in part and granting in part the Company's motion to dismiss a consolidated class action lawsuit. Specifically, the district court denied the motion to dismiss under the doctrine of forum non conveniens; denied the motion to dismiss for failure to state a claim with respect to the statements concerning legal compliance, internal controls, and financial reporting and accounting; and granted the motion to dismiss for failure to state a claim with respect to the statements concerning the Company's code of ethics and the status of the Corfo litigation. Since October 2015, the consolidated class action lawsuit has been pending against the Company in federal district court in the United States, alleging violations of the U.S. securities laws in connection with the subject matter of the investigations in Chile. The complaint alleges that certain statements made by the Company between June 30, 2010 and June 18, 2015, principally in the Company's SEC filings and press releases, were materially false and/or misleading in violation of Section 10(b) of the Securities Exchange Act of 1934 (the "Exchange Act") and Rule 10b-5 promulgated thereunder. Specifically, the complaint challenges certain of the Company's statements concerning its compliance with applicable laws and regulations; the effectiveness of its internal controls; its adoption of a code of ethics consistent with SEC requirements; its revenues and taxes owed; and its compliance with applicable accounting standards. The complaint also alleges that the Company made inadequate disclosures concerning the status of the Corfo litigation. The lead plaintiff seeks to represent a putative class consisting of all persons who purchased SQM ADSs between June 30, 2010 and June 18, 2015, and seeks damages of an undetermined amount to recover the economic losses allegedly suffered by the class as a result of the challenged statements. On March 30, 2016, the Company filed a motion to dismiss the complaint under the doctrine of forum non conveniens or, alternatively, pursuant to Rules 9(b) and 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim under Section 10(b) of the Exchange Act. Briefing on that motion to dismiss was completed on June 29, 2016. Chemical and Mining Company of Chile Inc. a/k/a Sociedad Quimica y Minera de Chile S.A. produces and sells specialty plant nutrients, industrial chemicals, iodine and derivatives, lithium and derivatives, potassium, and other products and services. The Company sells its products through sales offices and a network of distributors worldwide. Chemical and Mining Company of Chile Inc. was founded in 1968 and is headquartered in Santiago, Chile. CHEMOURS CO: Third Circuit Appeal Filed in "Girardot" Class Suit ---------------------------------------------------------------- Plaintiffs Peter Butler, Mark Girardot and Gerhard R. Wittreich filed an appeal from a court ruling in the lawsuit styled Mark Girardot, et al. v. Chemours Co., Case No. 1-16-cv-00263, in the U.S. District Court for the District of Delaware. As previously reported in the Class Action Reporter, the lawsuit is brought against the Defendant for alleged failure to pay former employees a lump sum severance benefit of one week of base pay for each full year of service, with both a minimum benefit of two weeks of base pay and a cap of 26 weeks base pay, and additional sum payment equal to the costs of three months of COBRA medical coverage. The Chemours Company operates a chemical company headquartered in Wilmington, Delaware. The appellate case is captioned as Mark Girardot, et al. v. Chemours Co., Case No. 17-1894, in the United States Court of Appeals for the Third Circuit.[BN] Plaintiffs-Appellants MARK GIRARDOT, GERHARD R. WITTREICH and PETER BUTLER, on behalf of themselves and all others similarly situated, are represented by: Robert K. Beste Jr., Esq. COHEN SEGLIAS PALLAS GREENHILL & FURMAN PC Nemours Building, Suite 1130 1007 North Orange Street Wilmington, DE 19801 Telephone: (302) 425-5089 E-mail: rbeste@cohenseglias.com - and - Jonathan Landesman, Esq. COHEN SEGLIAS PALLAS GREENHILL & FURMAN PC 30 South 17th Street, 19th Floor Philadelphia, PA 19103 Telephone: (215) 564-1700 E-mail: jlandesman@cohenseglias.com Defendant-Appellee CHEMOURS CO is represented by: Jeremy P. Blumenfeld, Esq. Bradley J. Crowell, Esq. Brian T. Ortelere, Esq. MORGAN, LEWIS & BOCKIUS, LLP 1701 Market Street Philadelphia, PA 19103 Telephone: (215) 963-5761 Facsimile: (215) 963-5001 E-mail: jblumenfeld@morganlewis.com bradley.crowell@morganlewis.com bortelere@morganlewis.com - and - Kathleen F. McDonough, Esq. Stephanie E. O'Byrne, Esq. POTTER ANDERSON & CORROON LLP 1313 North Market Street, 6th Floor Wilmington, DE 19801 Telephone: (302) 984-6000 Facsimile: (302) 658-1192 E-mail: kmcdonough@potteranderson.com sobyrne@potteranderson.com CITIZENS INC: Gamboa's Securities Class Action Suit Underway ------------------------------------------------------------ Citizens, Inc. is facing a putative class action lawsuit filed on or about March 16, 2017 by Juan Gamboa in the United States District Court, Western District of Texas against the Company and five of its current and former directors and executive officers, according to the Company's Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2016. The lawsuit alleges the defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder by making false and/or misleading statements, as well as failing to disclose material adverse facts about the Company's business, operations and prospects. The complaint seeks an award of damages in an unspecified amount on behalf of a putative class consisting of persons who purchased the Company's common stock between March 11, 2015 and March 8, 2017, inclusive. Citizens said, "The Company believes that the lawsuit is without merit, and it intends to vigorously defend against all claims asserted. At this time, the Company is unable to reasonably estimate the outcome of this litigation." Citizens, Inc., through its subsidiaries, provides life insurance products in the United States and internationally. The Company's Life Insurance segment offers ordinary whole-life, burial insurance, pre-need, and accident and health related policies in the Midwest and southern United States, as well as ordinary whole- life policies and endowment policies to non-U.S. residents. This segment offers its products through third-party marketing organizations and independent marketing consultants. Its Home Service Insurance segment provides final expense, ordinary, and industrial life insurance services; and annuities, as well as limited liability property policies to middle and lower income individuals in Louisiana, Mississippi, and Arkansas. This segment markets its products through funeral homes and independent agents, as well as through a home service marketing distribution system. Citizens, Inc. was founded in 1969 and is based in Austin, Texas. COMMUNITY HEALTH: Expects Settlement Approval by June 30 -------------------------------------------------------- Community Health Systems, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 2, 2017, for the quarterly period ended March 31, 2017, that the Company expects the trial court to approve the settlement in the case, Lopez v. Yakima Regional Medical & Cardiac Center and Toppenish Community Hospital, on June 30, 2017. This class action lawsuit arose out of alleged conduct at these hospitals prior to the HMA acquisition. The suit alleges the hospitals' charity care policies did not comply with Washington state law. The trial court has certified a class and granted partial summary judgment in favor of the plaintiffs. This matter has now been settled, and the Company expects the trial court to approve the settlement on June 30, 2017. The Company recorded an estimate of the probable liability at December 31, 2016 based on the settlement of this matter. Community Health is one of the largest publicly traded hospital companies in the United States and an operator of general acute care hospitals and outpatient facilities in communities across the country. COMMUNITY HEALTH: Oral Argument Held in Class Action Appeal ----------------------------------------------------------- Community Health Systems, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 2, 2017, for the quarterly period ended March 31, 2017, that oral argument on the appeal in the shareholder federal securities class action was scheduled for May 3, 2017. Three purported class action cases have been filed in the United States District Court for the Middle District of Tennessee; namely, Norfolk County Retirement System v. Community Health Systems, Inc., et al., filed May 9, 2011; De Zheng v. Community Health Systems, Inc., et al., filed May 12, 2011; and Minneapolis Firefighters Relief Association v. Community Health Systems, Inc., et al., filed June 21, 2011. All three seek class certification on behalf of purchasers of the Company's common stock between July 27, 2006 and April 11, 2011 and allege that misleading statements resulted in artificially inflated prices for the Company's common stock. In December 2011, the cases were consolidated for pretrial purposes and NYC Funds and its counsel were selected as lead plaintiffs/lead plaintiffs' counsel. In lieu of ruling on the Company's motion to dismiss, the court permitted the plaintiffs to file a first amended consolidated class action complaint, which was filed on October 5, 2015. The Company's motion to dismiss was filed on November 4, 2015 and oral argument was held on April 11, 2016. The Company's motion to dismiss was granted on June 16, 2016 and on June 27, 2016, the plaintiffs filed a notice of appeal to the Sixth Circuit Court of Appeals. The matter is fully briefed, and oral argument was scheduled for May 3, 2017. The Company believes this consolidated matter is without merit and will vigorously defend this case. Community Health is one of the largest publicly traded hospital companies in the United States and an operator of general acute care hospitals and outpatient facilities in communities across the country. CONAGRA BRANDS: Case to Test Gorsuch's Class Action Stance ---------------------------------------------------------- Alison Frankel, writing for Reuters, reports that Justice Neil Gorsuch of the U.S. Supreme Court doesn't have much of a record on class actions. As a private lawyer at Kellogg Huber Hansen Todd Evans & Figel between 1995 and 2005, Justice Gorsuch wrote a couple of amicus briefs for the U.S. Chamber of Commerce, asking to tighten requirements in securities class actions. He wrote a handful of opinions in class action cases in his last job, as a judge on the 10th U.S. Circuit Court of Appeals, none espousing an overarching policy on class actions as a vehicle of justice. Both friends and foes of the newest justice consider Justice Justice Gorsuch to be pro-business, but the truth is that we don't know yet if he will prod his fellow justices to revive Justice Antonin Scalia's years- long campaign to rein in class actions. An important early indicator arrived last month at the Supreme Court. Conagra Brands is petitioning the justices to review a 9th Circuit opinion certifying a class of Wesson cooking oil purchasers who claim they were deceived by the product's "all natural" labeling. Conagra, represented at the Supreme Court by Jones Day and McGuireWoods, contends that the justices must step in to resolve a deep circuit split on whether lead plaintiffs in class actions must show a feasible way to identify absent class members in order to be certified to litigate as a class. Ascertainability, as this issue is known, has been a particularly hot controversy since 2015, when the 7th Circuit roundly rejected the 3rd Circuit's conclusion that classes cannot be certified unless plaintiffs offer a "reliable and administratively feasible" way to determine who's in the class. The 3rd Circuit said in 2013's Carrera v. Bayer that plaintiffs' affidavits are not sufficient to establish class membership. The 7th Circuit said they were in 2015's Mullins v. Direct Digital. The division has since deepened amongst the federal circuits, as Conagra's brief points out. The 2nd, 4th and 11th Circuits use ascertainability tests in line with the 3rd Circuit's. The 6th Circuit -- and the 9th Circuit in the Conagra case -- agree with the 7th Circuit. "This disagreement is intolerable," Conagra said in its petition for certiorari. "Class certification is the most important decision in any class action, and now it turns on venue in many, many cases. This case -- involving those who bought '100% Natural' Wesson Oil in 11 states over the past decade or so -- provides this court with the perfect opportunity to finally end the dispute over this fundamental question of class-action law." An intractable circuit split on an issue affecting scores of defendants and thousands of consumers might seem to be a no- brainer for Supreme Court review, but in 2016, the justices declined to grant certiorari to defendants in the 7th Circuit case that first created the division in federal appellate courts, as well as a 6th Circuit case that widened the divide. Those denials both came after Scalia's death in February 2016. Conagra's petition argues that its 9th Circuit case presents the ascertainability issue more cleanly than the 6th and 7th Circuit class actions the justices decided not to review. In the previous cases, Conagra said, plaintiffs actually had ways to identify class members through existing records. In contrast, the company said, there is truly no feasible way to figure out who bought low- cost Wesson cooking oil years ago. And meanwhile, according to Conagra, it's become increasingly evident that certification of consumer class actions depends on geography. "Courts that require plaintiffs to propose a reliable, feasible method of identification have routinely denied class certification," Conagra said. "By contrast, classes like these sail through in jurisdictions where courts ask only for an objectively defined class." The cert petition lists nearly a dozen trial court rulings in each category to prove Conagra's point. "This has to stop," the brief said. "There is no question that class certification matters, that courts disagree about whether a class of impossible-to- identify plaintiffs can be certified, or that this disagreement leads to conflicting outcomes in indistinguishable cases. This case -- the paradigmatic consumer class action at the heart of this disagreement -- gives the court an ideal vehicle through which to end the confusion." The plaintiffs suing Conagra, represented at the 9th Circuit by Grant & Eisenhofer and Milberg, have brought in New York University law professor Samuel Issacharoff to oppose Conagra's cert petition. That's undoubtedly a smart move: Issacharoff fended off Supreme Court review in the two previous ascertainability cases before the justices and has become a kind of human firewall between consumers and corporations bent on restricting class actions through appellate litigation. Mr. Issacharoff's opposition brief in the Conagra case isn't due until mid-June, according to the Supreme Court docket, but he hinted at one of his arguments at a class action conference I attended last week. Mr. Issacharoff was moderating a panel on using social media to expand class members' participation in class actions. He hypothesized that Big Data could moot the debate over ascertainability by providing class counsel a means of identifying purchasers of even the humblest, least expensive products. If data collectors such as store loyalty programs, credit card records and point-of-sale inventory systems can pinpoint who bought which products, there's no need for the Supreme Court to wade into the policy morass. Conference goers seemed to think the Supreme Court will once again decide not to grant review of the ascertainability issue. When Bethany Lukitsch -- blukitsch@mcguirewoods.com -- of McGuireWoods, moderating a panel on consumer class actions, asked the audience if it expected the justices to take the Conagra case, only a few people raised their hands. Conventional wisdom among class action cognoscenti is that the Supreme Court will leave it to Congress to decide whether to clarify the class action rules. (As you know, the Advisory Committee on the Rules of Civil Procedure recently approved tweaks to Rule 23, which governs class actions, but the rule changes do not address ascertainability; the House of Representatives' Fairness in Class Action Litigation Act, passed in March, includes an ascertainability requirement adopting the 3rd Circuit's language.) "If Justice Scalia were alive, I bet he'd be pushing for the Supreme Court to take the Conagra case. I'm sure the business lobby is hoping Justice Gorsuch picks up right where his predecessor left off," Ms. Frankel says. [GN] CONSOL ENERGY: Certification Order in Hale Suit Under Appeal ------------------------------------------------------------ CONSOL Energy Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 2, 2017, for the quarterly period ended March 31, 2017, that CNX has filed an appeal from the Court order on Plaintiffs' Renewed Motion for Class Certification in the Hale Litigation. This class action lawsuit was filed on September 23, 2010 in the U.S. District Court in Abingdon, Virginia. The putative class consists of force-pooled unleased gas owners whose ownership of the coalbed methane (CBM) gas was declared to be in conflict with rights of others. The lawsuit seeks a judicial declaration of ownership of the CBM and damages based on allegations CNX Gas Company failed to either pay royalties due to conflicting claimants or deemed lessors or paid them less than required because of the alleged practice of improper below market sales and/or taking alleged improper post-production deductions. On September 30, 2013, the District Judge entered an Order certifying the class, and CNX Gas Company appealed the Order to the U.S. Fourth Circuit Court of Appeals. On August 19, 2014, the Fourth Circuit agreed with CNX Gas Company, reversed the Order certifying the class and remanded the case to the trial court for further proceedings consistent with the decision. On April 23, 2015, Plaintiffs filed a Renewed Motion for Class Certification, which CNX opposed. On March 29, 2017, the Court issued an Order certifying four issues for class treatment: (1) allegedly excessive deductions; (2) royalties based on purported improperly low prices; (3) deduction of severance taxes; and (4) Plaintiffs' request for an accounting. On April 13, 2017, CNX filed a Petition for Allowance of Appeal with the Fourth Circuit seeking review of the Order and on April 24, 2017, Plaintiffs filed its answer to the Petition. CONSOL Energy continues to believe this action cannot properly proceed as a class action in any form, believes the case has meritorious defenses, and intends to defend it vigorously. The Company has established an accrual to cover its estimated liability for this case. This accrual is immaterial to the overall financial position of CONSOL Energy and is included in Other Accrued Liabilities on the Consolidated Balance Sheets. CONSOL ENERGY: Class Certification Denied in Addison Litigation --------------------------------------------------------------- CONSOL Energy Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 2, 2017, for the quarterly period ended March 31, 2017, that the Court has denied class certification in the Addison Litigation. This class action lawsuit was filed on April 28, 2010 in the U.S. District Court in Abingdon, Virginia. The putative class consists of gas lessors whose gas ownership is in conflict. The lawsuit seeks a judicial declaration of ownership of the CBM and damages based on the allegations that CNX Gas Company failed to either pay royalties due to these conflicting claimant lessors or paid them less than required because of the alleged practice of improper below market sales and/or taking alleged improper post-production deductions. On September 30, 2013, the District Judge entered an Order certifying the class, and CNX Gas Company appealed the Order to the U.S. Fourth Circuit Court of Appeals. On August 19, 2014, the Fourth Circuit agreed with CNX Gas Company, reversed the Order certifying the class and remanded the case to the trial court for further proceedings consistent with the decision. On April 23, 2015, Plaintiffs filed a Renewed Motion for Class Certification, which CNX opposed. On March 29, 2017, the Court issued an Order denying class certification in this matter. CONSOL Energy believes the case has meritorious defenses, and intends to defend it vigorously. The Company has established an accrual to cover its estimated liability for this case. This accrual is immaterial to the overall financial position of CONSOL Energy and is included in Other Accrued Liabilities on the Consolidated Balance Sheets. CONSOL ENERGY: Amended Complaint Filed in Fitzwater Litigation -------------------------------------------------------------- CONSOL Energy Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 2, 2017, for the quarterly period ended March 31, 2017, that an amended complaint has been filed in the Fitzwater Litigation. Three nonunion retired coal miners have sued CONSOL Energy Inc., Fola Coal Company, Consolidation Coal Company and CONSOL of Kentucky Inc. (COK) in West Virginia Federal Court alleging ERISA violations in the termination of retiree health care benefits. The Plaintiffs contend they relied to their detriment on oral statements and promises of "lifetime health benefits" allegedly made by various members of management during Plaintiffs' employment and that they were allegedly denied access to Summary Plan Documents that clearly reserved to the Company the right to modify or terminate the CONSOL Energy Inc. Retiree Health and Welfare Plan. Pursuant to plaintiffs amended complaint filed on April 24, 2017, plaintiffs request that retiree health benefits be reinstated and seek to represent a class of all nonunion retirees who were associated with AMVEST and COK areas of operation.The Company believes it has meritorious defense and intends to vigorously defend this suit. CR BARD INC: Continues to Face Various Hernia Product Claims ------------------------------------------------------------ C.R. Bard, Inc. disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2017 that approximately 25 federal and 80 state lawsuits involving individual claims by approximately 105 plaintiffs, as well as one putative class action in the United States, are currently pending against the company with respect to its Composix(R) Kugel(R) and certain other hernia repair implant products (collectively, the "Hernia Product Claims") as of March 31, 2017. The Company voluntarily recalled certain sizes and lots of the Composix(R) Kugel(R) products beginning in December 2005. In June 2007, the Composix(R) Kugel(R) lawsuits and, subsequently, other hernia repair product lawsuits, pending in federal courts nationwide were transferred into one Multidistrict Litigation ("MDL") for coordinated pre-trial proceedings in the United States District Court for the District of Rhode Island. The MDL stopped accepting new cases in the second quarter of 2014 and was terminated in November 2016, at which time the remaining federal lawsuits were remanded to their courts of original jurisdiction for trial. As of March 31, 2017, all but one of the putative class actions pending against the company was dismissed. The remaining putative class action pending against the company has not been certified and seeks: (i) medical monitoring; (ii) compensatory damages; (iii) punitive damages; (iv) a judicial finding of defect and causation; and/or (v) attorneys' fees. In April 2014, a settlement was reached with respect to the three putative Canadian class actions within amounts previously recorded by the company. Approximately 70 of the state lawsuits, involving individual claims by approximately 70 plaintiffs, are pending in the Superior Court of the State of Rhode Island, with the remainder in various other jurisdictions. The Hernia Product Claims also generally seek damages for personal injury resulting from use of the products. The Company has resolved the majority of its historical Hernia Product Claims, including through agreements or agreements in principle with various plaintiffs' law firms to settle their respective inventories of cases. Each agreement involving the settlement of a firm's inventory of claims was subject to certain conditions, including requirements for participation in the proposed settlements by a certain minimum number of plaintiffs. C.R. Bard said, "The Company continues to engage in discussions with other plaintiffs' law firms regarding potential resolution of unsettled Hernia Product Claims, and intends to vigorously defend Hernia Product Claims that do not settle, including through litigation. The Company expects additional trials of Hernia Product Claims to take place over the next 12 months. The Company cannot give any assurances that the resolution of the Hernia Product Claims that have not settled, including asserted and unasserted claims and the putative class action lawsuit, will not have a material adverse effect on the company's business, results of operations, financial condition and/or liquidity." C. R. Bard, Inc., together with its subsidiaries, designs, manufactures, packages, distributes, and sells medical, surgical, diagnostic, and patient care devices worldwide. The Company sells its products directly to hospitals, individual healthcare professionals, extended care facilities, and alternate site facilities through hospital/surgical supply and other medical specialty distributors. C. R. Bard, Inc. was founded in 1907 and is headquartered in Murray Hill, New Jersey. CR BARD INC: Still Defends Women's Health Product Lawsuits ---------------------------------------------------------- C.R. Bard, Inc. disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2017 that product liability lawsuits involving individual claims by approximately 5,305 plaintiffs are currently pending against the Company as of March 31, 2017 in various federal and state jurisdictions alleging personal injuries associated with the use of certain of the company's surgical continence products for women. These products include those manufactured by both the company and two subsidiaries of Medtronic plc (as successor in interest to Covidien plc) ("Medtronic"), each a supplier of the Company. Medtronic has an obligation to defend and indemnify the company with respect to any product defect liability for products its subsidiaries had manufactured. In July 2015, the Company reached an agreement with Medtronic regarding certain aspects of Medtronic's indemnification obligation. In addition, five putative class actions in the United States and five putative class actions in Canada have been filed against the company, and a limited number of other claims have been filed or asserted in various non-U.S. jurisdictions. The foregoing lawsuits, unfiled or unknown claims, putative class actions and other claims, together with claims that have settled or are the subject of agreements or agreements in principle to settle, are referred to collectively as the "Women's Health Product Claims". The Women's Health Product Claims generally seek damages for personal injury resulting from use of the products. The putative class actions, none of which has been certified, seek: (i) medical monitoring; (ii) compensatory damages; (iii) punitive damages; (iv) a judicial finding of defect and causation; and/or (v) attorneys' fees. In April 2015, the Ontario Superior Court of Justice dismissed the plaintiffs' motion for class certification in one Canadian putative class action. In March 2016, the Company reached an agreement in principle to resolve all Canadian putative class actions, with the exception of a Quebec class action, within amounts previously recorded by the company, which settlement was finalized in September 2016. In January 2017, the court approved the discontinuance of the proposed Quebec class action. C. R. Bard, Inc., together with its subsidiaries, designs, manufactures, packages, distributes, and sells medical, surgical, diagnostic, and patient care devices worldwide. The Company sells its products directly to hospitals, individual healthcare professionals, extended care facilities, and alternate site facilities through hospital/surgical supply and other medical specialty distributors. C. R. Bard, Inc. was founded in 1907 and is headquartered in Murray Hill, New Jersey. CR BARD INC: Still Faces Various Filter Product Claims, Lawsuits ---------------------------------------------------------------- C.R. Bard, Inc. disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2017 that product liability lawsuits involving individual claims by approximately 1,755 plaintiffs are currently pending as of March 31, 2017 against the company in various federal and state jurisdictions alleging personal injuries associated with the use of the Company's vena cava filter products. In August 2015, the Judicial Panel for Multi-District Litigation ("JPML") ordered the creation of a Multi-District Litigation for all federal Filter Product Claims (the "IVC Filter MDL") in the District of Arizona. There are approximately 1,705 Filter Product Claims that have been, or shortly will be, transferred to the IVC Filter MDL, including one medical monitoring class action. The remaining approximately 45 Filter Product Claims are pending in various state courts. In March 2016, a putative Canadian class action was filed against the company in Quebec. In April 2016 and May 2016, putative Canadian class actions were filed in Ontario and British Columbia, respectively. In November 2016, a putative Canadian class action was filed in Saskatchewan. The Company said, "The approximate number of lawsuits set forth above does not include approximately 25 claims that have been threatened against the company but for which complaints have not yet been filed. In addition, the company has limited information regarding the nature and quantity of these and other unfiled or unknown claims. The Company continues to receive claims and lawsuits and may in future periods learn additional information regarding other unfiled or unknown claims, or other lawsuits, which could materially impact the Company's estimate of the number of claims or lawsuits against the company. The Company expects that trials of Filter Product Claims may take place over the next 12 months. While the Company intends to vigorously defend Filter Product Claims that do not settle, including through litigation, it cannot give any assurances that the resolution of these claims will not have a material adverse effect on the Company's business, results of operations, financial condition and/or liquidity." C. R. Bard, Inc., together with its subsidiaries, designs, manufactures, packages, distributes, and sells medical, surgical, diagnostic, and patient care devices worldwide. The Company sells its products directly to hospitals, individual healthcare professionals, extended care facilities, and alternate site facilities through hospital/surgical supply and other medical specialty distributors. C. R. Bard, Inc. was founded in 1907 and is headquartered in Murray Hill, New Jersey. CVS PHARMACY: Lowe Moves for Certification of Three TCPA Classes ---------------------------------------------------------------- The Plaintiffs in the lawsuit captioned CARL LOWE and KEARBY KAISER, on behalf of themselves and others similarly situated v. CVS PHARMACY, INC., MINUTECLINIC, LLC, and WEST CORPORATION, Case No. 1:14-cv-03687 (N.D. Ill.), ask the Court to certify three classes pursuant to the Telephone Consumer Protection Act: (1) The first money-damage class, with Kearby Kaiser as proposed class representative, consists only of persons called where CVS included a message offering a coupon or gift card for consumer purchases at its brick-and-mortar stores. The class is defined as: Telemarketing Class -- All persons in the United States whose cell phone CVS called using an unattended message on or after May 20, 2010, where the message played, or intended to be played, included reference to a gift card or coupon; (2) The second money-damage class, with Kearby Kaiser as proposed class representative, is defined as: Caller ID Class -- All persons with Illinois area code landline or cell phones, for whom MinuteClinic's records also show an Illinois address, who were called as part of CVS' 2013 MinuteClinic robocall campaign during which CVS blocked the caller ID; and (3) The third class is an injunctive class with Carl Lowe as the proposed class representative. The injunctive class is defined as: Wrong Person Injunctive Class -- All persons in the United States whose cell phone CVS, or West on behalf of CVS, called or might call in the future, using unattended message technology, where such call was directed at some person other than the recipient. The Plaintiffs ask the Court to certify the proposed classes, designate them as class representatives, and appoint their attorneys as class counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=0g29FY7l The Plaintiffs are represented by: Alexander H. Burke, Esq. Daniel J. Marovitch, Esq. BURKE LAW OFFICES, LLC 155 N. Michigan Ave., Suite 9020 Chicago, IL 60601 Telephone: (312) 729-5288 Facsimile: (312) 729-5289 E-mail: aburke@burkelawllc.com dmarovitch@burkelawllc.com - and - Edward A. Broderick, Esq. Anthony I. Paronich, Esq. BRODERICK LAW, P.C. 125 Summer St., Suite 1030 Boston, MA 02110 Telephone: (617) 738-7080 Facsimile: (617) 830-0327 E-mail: ted@broderick-law.com anthony@broderick-law.com - and - Matthew P. McCue, Esq. LAW OFFICE OF MATTHEW P.MCCUE 1 South Ave., 3rd Floor Natick, MA 07160 Telephone: (508) 655-1415 Facsimile: (508) 319-3077 E-mail: mmccue@massattorneys.net - and - Brian K. Murphy, Esq. MURRAY MURPHY MOUL BASIL LLP 1114 Dublin Road Columbus, OH 43215 Telephone: (614) 488-0400 Facsimile: (614) 488-0401 E-mail: murphy@mmmb.com DAIKIN APPLIED: Park-Kim Appeals C.D. Cal. Ruling to 9th Circuit ---------------------------------------------------------------- Plaintiffs Joanna Park-Kim and Maria Cecilia Ramos filed an appeal from a court ruling in their lawsuit titled Joanna Park-Kim, et al. v. Daikin Applied Americas, Inc., et al., Case No. 2:15-cv- 09523-CAS-KK, in the U.S. District Court for the Central District of California, Los Angeles. As previously reported in the Class Action Reporter, the lawsuit was filed in the Superior Court of the State of California for the County of Los Angeles (Case No. BC600497), but was later removed to the District Court. The appellate case is captioned as Joanna Park-Kim, et al. v. Daikin Applied Americas, Inc., et al., Case No. 17-55566, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by May 24, 2017; -- Transcript is due on August 22, 2017; -- Appellants Joanna Park-Kim and Maria Cecilia Ramos' opening brief is due on October 2, 2017; -- Appellees Daikin Applied Americas, Inc. and Does' answering brief is due on October 31, 2017; and -- Appellant's optional reply brief is due 14 days after service of the answering brief.[BN] Plaintiffs-Appellants JOANNA PARK-KIM, individually and on behalf of all others similarly situated, and MARIA CECILIA RAMOS, individually and on behalf of all others similarly situated, are represented by: Graham B. LippSmith, Esq. KASDAN LIPPSMITH WEBER TURNER LLP 500 S. Grand Avenue, Suite 1310 Los Angeles, CA 90071 Telephone: (213) 254-4800 Facsimile: (213) 254-4801 E-mail: glippsmith@klwtlaw.com Defendant-Appellee DAIKIN APPLIED AMERICAS, INC., FKA McQuay International, is represented by: Frederick L. McKnight, Esq. JONES DAY 555 South Flower Street Los Angeles, CA 90071 Telephone: (213) 489-3939 E-mail: fmcknight@jonesday.com - and - Louis A. Chaiten, Esq. JONES DAY 901 Lakeside Avenue Cleveland, OH 44114 Telephone: (216) 586-7244 E-mail: lachaiten@jonesday.com - and - Theodore M. Grossman, Esq. JONES DAY 250 Vesey Street New York, NY 10281-1047 Telephone: (212) 326-3480 E-mail: tgrossman@jonesday.com - and - Charlotte S. Wasserstein, Esq. KATTEN MUCHIN ROSENMAN LLP 2029 Century Park East Los Angeles, CA 90067 Telephone: (310) 788-4400 Facsimile: (310) 788-4471 E-mail: charlotte.wasserstein@kattenlaw.com DOW CHEMICAL: Had US$130MM Liability in Rocky Flats Class Action ---------------------------------------------------------------- The Dow Chemical Company disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2017 that it had a liability of US$130 million at March 31, 2017 related to a class action lawsuit involving property owners in Rocky Flats, Colorado. The Company and Rockwell International Corporation ("Rockwell") (collectively, the "defendants") were defendants in a class action lawsuit filed in 1990 on behalf of property owners ("plaintiffs") in Rocky Flats, Colorado, who asserted claims for nuisance and trespass based on alleged property damage caused by plutonium releases from a nuclear weapons facility owned by the U.S. Department of Energy ("DOE") (the "facility") but operated by Dow and Rockwell. The plaintiffs tried their case as a public liability action under the Price Anderson Act ("PAA"). Dow and Rockwell litigated this matter in the United States District Court for the District of Colorado ("District Court"), the U.S. Tenth Circuit Court of Appeals and then filed a petition for writ of certiorari in the United States Supreme Court. On May 18, 2016, Dow, Rockwell and the plaintiffs entered into a settlement agreement for US$375 million, of which US$131 million will be paid by Dow. The DOE authorized the settlement pursuant to the PAA and the nuclear hazards indemnity provisions contained in Dow's and Rockwell's contracts. The District Court granted preliminary approval to the class settlement on August 5, 2016. At March 31, 2017, the Company had a liability of US$130 million related to this matter, having already paid US$1 million towards class notice costs, included in "Accrued and other current liabilities" in the consolidated balance sheets (US$130 million at December 31, 2016). A fairness hearing on the class settlement was scheduled for April 28, 2017. On December 13, 2016, the United States Civil Board of Contract Appeals unanimously ordered the United States government to pay the amounts stipulated in the settlement agreement. On January 17, 2017, the Company received a full indemnity payment of US$131 million from the United States government for Dow's share of the class settlement. On January 26, 2017, the Company funded an escrow account for the settlement payment owed to the plaintiffs, which will remain in escrow until the settlement is approved and finalized by the District Court. At March 31, 2017, US$130 million remained in escrow and is included in "Other current assets" in the consolidated balance sheets (US$131 million at December 31, 2016 and included in "Accounts and notes receivable - Other" in the consolidated balance sheets). The Dow Chemical Company manufactures and supplies products that are used as raw materials in the manufacture of customer's products and services worldwide. It operates in five segments: Agricultural Sciences, Consumer Solutions, Infrastructure Solutions, Performance Materials & Chemicals, and Performance Plastics segments. The Company was founded in 1897 and is based in Midland, Michigan. DOW CHEMICAL: Levine Suit in Mich. District Court Has Concluded --------------------------------------------------------------- The Dow Chemical Company disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2017 that Stephen Levine's lawsuit filed in the United States District Court for the Eastern District of Michigan related to urethanes antitrust class action litigation, among other things, "is now concluded." In April 2016, Stephen Levine, purportedly in the name of and on behalf of the Company, served the Company with a complaint filed with the Eastern Michigan District Court against certain officers and directors of the Company (the "Defendants") alleging, among other things, that Defendants breached certain fiduciary obligations with respect to the urethanes antitrust class action litigation and the underlying conduct alleged therein, and the use of corporate assets. Defendants and the Company moved to dismiss the complaint on July 13, 2016, arguing that Levine had not alleged sufficient facts to establish his ability to assert claims on the Company's behalf and that the allegations were not sufficient to state a legal claim. On October 19, 2016, the Court entered an order granting Defendants' motion to dismiss and entering judgment for the Defendants. In November 2016, the shareholder appealed the Court's judgment to the United States Court of Appeals for the Sixth Circuit. Levine voluntarily withdrew the appeal in connection with a resolution of the shareholders request to inspect certain corporate books and records. This matter is now concluded. The Dow Chemical Company manufactures and supplies products that are used as raw materials in the manufacture of customer's products and services worldwide. It operates in five segments: Agricultural Sciences, Consumer Solutions, Infrastructure Solutions, Performance Materials & Chemicals, and Performance Plastics segments. The Company was founded in 1897 and is based in Midland, Michigan. EQT PRODUCTION: Seeks 4th Cir. Review of Ruling in "Adkins" Suit ---------------------------------------------------------------- Defendant EQT Production Company filed an appeal from a court ruling in the lawsuit titled EVA MAE ADKINS, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED v. EQT PRODUCTION COMPANY, Case No. 1:10-cv-00041-JPJ-PMS, in the U.S. District Court for the Western District of Virginia at Abingdon. As previously reported in the Class Action Reporter on April 28, 2017, the Hon. James P. Jones granted the renewed motion for class certification and the action is certified as a class action with respect to these claims: a. The claims for conversion, excluding the issue of the applicability of the First Marketable Product Rule; and b. The claims for breach of contract, excluding the issues of the Defendant's allegedly improper deductions and applicability of the First Marketable Product Rule, and conditional upon a motion being filed within 30 days requesting the substitution of an appropriate class representative and an order thereafter being duly entered by the Court granting such substitution. Two subclasses are also certified as to: (1) the claims for conversion (the "Conversion Class"), and (2) the claims for breach of contract (the "Breach of Contract Class"). The appellate case is captioned as EQT Production Company v. Eva Adkins, Case No. 17-211, in the United States Court of Appeals for the Fourth Circuit.[BN] Plaintiff-Respondent EVA MAE ADKINS, on behalf of herself and all others similarly situated, is represented by: Elizabeth A. Alexander, Esq. LIEFF CABRASER HEIMANN AND BERNSTEIN LLP 150 Fourth Avenue North One Nashville Place Nashville, TN 37219 Telephone: (615) 313-9000 E-mail: ealexander@lchb.com - and - Elizabeth Joan Cabraser, Esq. LIEFF, CABRASER, HEIMANN & BERNSTEIN LLP 275 Battery Street San Francisco, CA 94111-0000 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 E-mail: ecabraser@lchb.com - and - Daniel Edward Seltz, Esq. David S. Stellings, Esq. LIEFF CABRASER HEIMANN & BERNSTEIN LLP 250 Hudson Street New York, NY 10013 Telephone: (212) 355-9500 Facsimile: (212) 355-9592 E-mail: dseltz@lchb.com dstellings@lchb.com - and - Charles F. Barrett, Esq. CHARLES BARRETT, PC 6518 Highway 100, Suite 210 Nashville, TN 37205 Telephone: (615) 515-3393 Facsimile: (615) 515-3395 E-mail: charles@cfbfirm.com - and - Don Barrett, Esq. BARRETT LAW OFFICES P. O. Box 927 Lexington, MS 39095-0000 Telephone: (662) 834-2488 Facsimile: (662) 834-2628 E-mail: dbarrett@barrettlawgroup.com - and - David Malcom McMullan, Jr., Esq. DON BARRETT PA 404 Court Square North Lexington, MS 39095 Telephone: (662) 834-2488 Facsimile: (662) 834-2628 E-mail: dmcmullan@barrettlawgroup.com - and - Jennifer Lindsey Shaver, Esq. P. O. Box 2032 Abingdon, VA 24212 Telephone: (276) 525-1103 - and - Jackson Stuart White, Jr., Esq. WHITE LAW OFFICE P. O. Box 286 Abingdon, VA 24212-0000 Telephone: (276) 619-3831 Defendant-Petitioner EQT PRODUCTION COMPANY is represented by: Mark Edward Frye, Esq. PENN, STUART & ESKRIDGE 804 Anderson Street Bristol, TN 37620-2009 Telephone: (423) 793-4815 E-mail: mfrye@pennstuart.com - and - Stephen McQuiston Hodges, Esq. Seth Michael Land, Esq. Wade Wallihan Massie, Esq. PENNSTUART 208 East Main Street P. O. Box 2288 Abingdon, VA 24212-2288 Telephone: (276) 628-5151 Facsimile: (276) 628-4918 E-mail: shodges@pennstuart.com sland@pennstuart.com wmassie@pennstuart.com EQUITY RESIDENTIAL: Can't Arbitrate Employees' Wage Class Action ---------------------------------------------------------------- Vin Gurrieri, writing for Law360, reports that a property management company can't arbitrate a proposed class action alleging that it didn't pay employees for off-the-clock work, a New York federal judge ruled, saying the company lost its chance when it refused the lead plaintiff's pre-suit attempt to abide by the terms of an arbitration agreement. U.S. District Judge Vincent L. Briccetti rejected a motion by Equity Residential Properties Management Corp. to compel arbitration in a proposed class action brought by Janice Nadeau alleging that she and other ERPM employees were not paid for off- the-clock work in violation of the Fair Labor Standards Act. Although Ms. Nadeau had signed a mandatory arbitration agreement when she was hired that required her to resolve any disputes related to her employment before the American Arbitration Association, Judge Briccetti said that agreement was broken by ERPM when it refused to pay the cost of the proceeding as required after Nadeau tried to initiate such a proceeding. "Under New York law, when a party to a contract materially breaches that contract, it cannot then enforce that contract against a nonbreaching party," the judge said. "The court agrees defendant materially breached the arbitration agreement and therefore cannot use the agreement to compel arbitration. To hold otherwise 'would set up a perverse incentive scheme,' contrary to the [Federal Arbitration Act] and common sense." Citing precedent from a 2005 Ninth Circuit ruling known as Brown v. Dillard's Inc., Judge Briccetti said that incentive would be for businesses to refuse to arbitrate claims brought by employees in the hope that those frustrated workers would simply abandon their claims. Ms. Nadeau worked for ERPM as a customer support assistant for about 16 months beginning in February 2015. The arbitration agreement she signed when she was hired required the company to pay for any proceeding before the AAA. In her October complaint, Ms. Nadeau claimed that her employer regularly required her to respond to text messages and phone calls both before and after her scheduled shift without recording or properly compensating her for that time. In May 2016, Ms. Nadeau alleged that her supervisor sent her a text telling her to attend a company event off-the-clock. To express her dissatisfaction about having to attend without pay, she replied using vulgar language, which in turn prompted ERPM to write her up for purportedly violating company policy, according to court documents. Ms. Nadeau then filed an arbitration demand with the American Arbitration Association as required under the arbitration agreement. In June 2016, however, AAA informed Nadeau that it hadn't received ERPM's filing fees for the arbitration. About a week later, the company fired Nadeau, according to court documents. About three days after she was fired, Ms. Nadeau spoke with Lisa Leib, a vice president in ERPM's legal department, and discussed the arbitration demand. Ms. Nadeau ultimately rejected several offers from Leib to settle the case, asking instead that the case be sent to arbitration and that ERPM pay the required fees. In July 2016, Ms. Nadeau received a letter from AAA saying that because ERPM didn't pay the fees, the arbitration case file would have to be closed, according to court documents. Ms. Nadeau's October complaint alleged violation of FLSA and various New York state laws and included claims that the company retaliated against her for seeking arbitration. She sought to represent all nonexempt ERPM employees during the class period who received or responded to off-the-clock messages from the company. In response, ERPM asked the court to compel arbitration of the lawsuit. In rejecting that request, Judge Briccetti turned aside ERPM's argument that it didn't breach the arbitration agreement since Nadeau's arbitration demand itself was flawed. The company had argued that she failed to sign and date the arbitration and that she didn't check a box regarding whether her claims involved statutorily protected rights. "Defendant provides no authority for the proposition that plaintiff was required to satisfy various technical pleading conditions to initiate arbitration," the judge said. "Further, the court is not aware of anything in the arbitration agreement, defendant's employee handbook, the AAA's Employment Arbitration Rules and Mediation Procedures, the FAA or any other law imposing such requirements. Indeed, to the extent these sources address the requirements of pleadings in arbitration demands, these sources suggest the opposite conclusion." Moreover, Judge Briccetti rejected ERPM's argument that Ms. Nadeau's claims either weren't arbitrable or fell outside the scope of the arbitration agreement, saying the agreement's "expansive definition" of arbitrable disputes "unambiguously encompasses" Ms. Nadeau's claims regarding discipline for complaining about the terms and conditions of her employment. As a result of the ruling, the parties were ordered to attend mediation sessions. "Ms. Nadeau is pleased with Judge Briccetti's decision that Equity cannot use arbitration as a sword and a shield," said Jeremiah Frei-Pearson, counsel for the plaintiff. "She looks forward to vindicating her rights and the rights of other workers who were victimized by Equity's unlawful wage practices." Counsel for the employer was not immediately available for comment late on May 8. Ms. Nadeau is represented by Jeremiah Frei-Pearson, D. Greg Blankinship, John D. Sardesai-Grant and Difie M. Osborne of Finkelstein Blankinship Frei- Pearson & Garber LLP. ERPM is represented by Amy J. Traub -- atraub@bakerlaw.com -- and John C. McIlwee -- jmcilwee@bakerlaw.com -- of BakerHostetler. The case is Janice Nadeau v. Equity Residential Properties Management Corp., case number 7:16-cv-07986, in the U.S. District Court for the Southern District of New York. [GN] EXPEDIA INC: Hotels Consolidate Bait-and-Switch Scheme Case ----------------------------------------------------------- Joyce Hanson, Dorothy Atkins, Cara Bayles and Melissa Daniels, writing for Law360, report that a group of hotels consolidated their suit against several Expedia Inc. travel-booking websites in California federal court, reasserting their claim that the sites lure in consumers with false advertisements and then divert them to reservations at hotels where they get a cut of the booking. The proposed class action that now includes California-based Buckeye Tree Lodge and Sequoia Village Inn LLC and The Mansion on O Street in Washington, D.C., slams Expedia's sites for allegedly running "a classic bait and switch marketing scheme" worldwide that offers rooms at hotels unaffiliated with the sites or at affiliated hotels where there are no more vacancies in Expedia's allotment of rooms. "Expedia baits consumers with online deals for vacation and hotel stays at the plaintiffs' and other class members' hotels, even though these hotels are not affiliated with Expedia or do not reveal their vacancy rate to Expedia. In fact, Expedia has no way to book these hotels," the hotels said. In making their case that Expedia's deception is worldwide, the hotels on May 5 cited European proceedings from 2011 in which the French Directorate General for Competition, Consumption and Repression of Fraud found the company had used unfair business practices on its Expedia.fr site. "Expedia is well aware of the deceptive nature of its marketing practices," the hotels said. "In 2011, Expedia was fined EUR367,000 . . . for engaging in misleading marketing practices related to a French hotel and restaurant association. The entities sued Expedia, alleging that the company advertised reduced rates at hotels without their consent, showed available rooms as booked and drove traffic to third-party bookers." On March 15, U.S. District Judge Vince Chhabria ruled that another case, 2020 O Street Mansion Corp. v. Expedia, is related to the Buckeye Tree Lodge case and ordered that the case should be reassigned to him. Judge Chhabria's order followed a March 9 request by Expedia entities Expedia Inc., Hotels.com LP, Hotels.com GP LLC, Orbitz LLC, Venere Net S.r.l., and Expedia Australia Investments Pty Ltd. to consider whether the cases should be related. Judge Chhabria on Jan. 12 said he would give the proposed class of hotels one more chance to preserve some claims that Expedia cost them business by erroneously listing them as having no vacancies, saying lead plaintiff Buckeye Tree Lodge based in Three Rivers, California, must offer evidence Expedia prevented a customer from booking there. The judge granted Expedia's Nov. 10 motion to dismiss in an order trimming claims of unjust enrichment as well as intentional and negligent interference with prospective economic advantage from the suit, but gave the class leave to amend, which he said at a hearing earlier on Jan. 12 was the hotels' "last chance" to preserve the claims. The suit can still proceed on violations of the Lanham Act and California business profession code, and claims of unfair competition, false advertising, false affiliation and trademark infringement. The original complaint filed in August and amended on Sept. 16 alleges that Expedia and associated travel sites lure customers in through social media and search engines by advertising the plaintiffs' properties, then telling site visitors the hotels are booked, diverting them to reservations at Expedia member hotels, which give the company a 10 percent cut of the booking. Expedia -- whose network of online services includes Hotels.com, Orbitz, Trivago, Venere and Wotif -- targets social media advertisements for hotels it cannot book to those consumers and then diverts them to class member hotels, Buckeye Tree Lodge alleges. Buckeye Tree Lodge seeks an injunction, disgorgement of income, damages and restitution of income, saying that it and other hotels have had their reputations damaged by Expedia's actions and misrepresentations in violation of the Lanham Act. The suit doesn't specify exactly how large the class could be, but the suit estimates it comprises a national class of more than 100 hotels, motels and overnight accommodations. Legal counsel for Buckeye Tree Lodge and Expedia did not immediately respond on May 8 to requests for comment. Buckeye Tree Lodge is represented by James R. Patterson, Allison H. Goddard and Elizabeth A. Mitchell of Patterson Law Group. Expedia is represented by Emily Johnson Henn -- ehenn@cov.com -- Megan L. Rodgers -- mrodgers@cov.com -- Simon J. Frankel and Cortlin H. Lannin of Covington & Burling LLP. The case is Buckeye Tree Lodge and Sequoia Village Inn LLC v. Expedia Inc. et al., case number 3:16-cv-04721, in the U.S. District Court for the District of Northern California. [GN] FEDERAL SIGNAL: Still Faces Firefighters Hearing Loss Cases ----------------------------------------------------------- Federal Signal Corporation remains a defendant in complaints filed by firefighters alleging hearing impairment due to the Company's sirens, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2017. The Company has been sued for monetary damages by firefighters who claim that exposure to the Company's sirens has impaired their hearing and that the sirens are therefore defective. There were 33 cases filed during the period of 1999 through 2004, involving a total of 2,443 plaintiffs, in the Circuit Court of Cook County, Illinois. These cases involved more than 1,800 firefighter plaintiffs from locations outside of Chicago. In 2009, six additional cases were filed in Cook County, involving 299 Pennsylvania firefighter plaintiffs. During 2013, another case was filed in Cook County involving 74 Pennsylvania firefighter plaintiffs. The trial of the first 27 of these plaintiffs' claims occurred in 2008, whereby a Cook County jury returned a unanimous verdict in favor of the Company. An additional 40 Chicago firefighter plaintiffs were selected for trial in 2009. Plaintiffs' counsel later moved to reduce the number of plaintiffs from 40 to nine. The trial for these nine plaintiffs concluded with a verdict against the Company and for the plaintiffs in varying amounts totaling US$0.4 million. The Company appealed this verdict. On September 13, 2012, the Illinois Appellate Court rejected this appeal. The Company thereafter filed a petition for rehearing with the Illinois Appellate Court, which was denied on February 7, 2013. The Company sought further review by filing a petition for leave to appeal with the Illinois Supreme Court on March 14, 2013. On May 29, 2013, the Illinois Supreme Court issued a summary order declining to accept review of this case. On July 1, 2013, the Company satisfied the judgments entered for these plaintiffs, which has resulted in final dismissal of these cases. A third consolidated trial involving eight Chicago firefighter plaintiffs occurred during November 2011. The jury returned a unanimous verdict in favor of the Company at the conclusion of this trial. Following this trial, on March 12, 2012 the trial court entered an order certifying a class of the remaining Chicago Fire Department firefighter plaintiffs for trial on the sole issue of whether the Company's sirens were defective and unreasonably dangerous. The Company petitioned the Illinois Appellate Court for interlocutory appeal of this ruling. On May 17, 2012, the Illinois Appellate Court accepted the Company's petition. On June 8, 2012, plaintiffs moved to dismiss the appeal, agreeing with the Company that the trial court had erred in certifying a class action trial in this matter. Pursuant to plaintiffs' motion, the Illinois Appellate Court reversed the trial court's certification order. Thereafter, the trial court scheduled a fourth consolidated trial involving three firefighter plaintiffs, which began in December 2012. Prior to the start of this trial, the claims of two of the three firefighter plaintiffs were dismissed. On December 17, 2012, the jury entered a complete defense verdict for the Company. Following this defense verdict, plaintiffs again moved to certify a class of Chicago Fire Department plaintiffs for trial on the sole issue of whether the Company's sirens were defective and unreasonably dangerous. Over the Company's objection, the trial court granted plaintiffs' motion for class certification on March 11, 2013 and scheduled a class action trial to begin on June 10, 2013. The Company filed a petition for review with the Illinois Appellate Court on March 29, 2013 seeking reversal of the class certification order. On June 25, 2014, a unanimous three-judge panel of the First District Illinois Appellate Court issued its opinion reversing the class certification order of the trial court. Specifically, the Appellate Court determined that the trial court's ruling failed to satisfy the class-action requirements that the common issues of the firefighters' claims predominate over the individual issues and that there is an adequate representative for the class. During a status hearing on October 8, 2014, plaintiffs represented to the Court that they would again seek to certify a class of firefighters on the issue of whether the Company's sirens were defective and unreasonably dangerous. On January 12, 2015, plaintiffs filed motions to amend their complaints to add class action allegations with respect to Chicago firefighter plaintiffs as well as the approximately 1,800 firefighter plaintiffs from locations outside of Chicago. On March 11, 2015, the trial court granted plaintiff's motions to amend their complaints. Plaintiffs have indicated that they will now file motions to certify classes in these cases. On April 24, 2015, the cases were transferred to Cook County chancery court, which will decide all class certification issues. Federal Signal stated, "The Company intends to continue its objections to any attempt at certification." The Company has also filed motions to dismiss cases involving firefighters who worked for fire departments located outside of the state of Illinois based on improper venue. On February 24, 2017, the Circuit Court of Cook County entered orders dismissing the cases of 1,770 such firefighter plaintiffs from the jurisdiction of the state of Illinois. These cases may be refiled in jurisdictions where these firefighters are located. FIELD & TECHNICAL: "Close" Sues Over Unpaid Wages Under FLSA ------------------------------------------------------------ Johnny Close, individually and on behalf of all similarly situated individuals, Plaintiff, v. Field & Technical Services, LLC, Defendant, Case No. 2:17-cv-00556, (W.D. Pa., April 28, 2017), seeks to recover unpaid wages and damages owed under the federal Fair Labor Standards Act. Field & Technical Services, LLC provides nationwide environmental technical services where Plaintiff worked as an Operation Maintenance and Monitoring Technician to provide light construction work, including installation of equipment or driving/operating equipment for Defendant's customers. Plaintiff is represented by: David S. Senoff, Esq. ANAPOL WEISS 130 North 18th Street, Suite 1600 Philadelphia, PA 19103 Telephone: (215) 790-45 50 Fax: (215) 875-7733 Email: dsenoff@anapo1weiss.com - and - David H. Grounds, Esq. Molly E. Nephew, Esq. JOHNSON BECKER, PLLC 444 Cedar Street, Suite 1800 Saint Paul, MN 55101 Telephone: (612) 436-1800 Fax: (612) 436-1801 Email: dgrounds@johnsonbecker.com mnephew@johnsonbecker.com FLAGSHIP CREDIT: Faces Class Action Over Unwanted Robocalls ----------------------------------------------------------- Joyce Hanson, writing for Law360, reports that an auto loan financier was hit in Pennsylvania federal court with a proposed class action that claims more than $5 million in damages and alleges the company used an automatic telephone dialing system to illegally "bombard" unsuspecting consumers with unwanted robocalls and prerecorded messages. Lead plaintiff Robert Ward of College Park, Georgia, accused Chadds Ford, Pennsylvania-based Flagship Credit Acceptance LLC of knowingly and willfully placing automated calls to his cell phone in violation of the Telephone Consumer Protection Act of 1991, claiming that he is not a company customer and did not give his prior consent for the calls. "Flagship is an automobile loan financier which specializes in the acquisition, issuance and servicing of prime to subprime automotive retail installment contracts," Mr. Ward said. "As part of its acquisition and servicing of automotive retail installment contracts, it uses robo-dialing systems to bombard unsuspecting consumers who have no relationship with it with robocalls and prerecorded messages." The TCPA prohibits any call using an automatic telephone dialing system or an artificial or prerecorded voice to a cellular phone without prior express consent by the person being called, unless the call is for emergency purposes, according to Mr. Ward. But Flagship has repeatedly placed ATDS calls to his cell phone from four different company numbers, he said. When Ward answered the calls from Flagship, which were looking for a man named "Charles Walker," he heard an extended period of silence before the calls were routed to a live agent, a practice that Ward alleges is indicative of Flagship's use of a "predictive dialer," an autodialer under the TCPA. "When plaintiff answered the Flagship call, the autodialer played a prerecorded and/or artificial message which said, 'Please wait for the next available agent,'" Mr. Ward alleged. "After a period of time, the call was then routed to a live agent. This . . . is indicative of a predictive dialer which is waiting for a live agent to become available to whom the call can be routed." When Mr. Ward did speak with a live Flagship agent after waiting on the line, he advised the agent that he wasn't Charles Walker and that he wanted Flagship to stop calling him, according to the suit. On multiple occasions the agent said no further calls would occur, but the calls didn't cease, the suit said. Mr. Ward seeks up to $500 in damages for each violation of the TCPA, which when aggregated among the proposed class of more than 1,000 members exceeds the $5 million threshold for federal court jurisdiction. He also alleges a national class that will result in at least one class member residing in a different state. Legal counsel for Mr. Ward declined to comment on May 8. Representatives for Flagship declined to comment. Mr. Ward is represented by Sergei Lemberg of Lemberg Law LLC. Legal counsel information for Flagship was unavailable. The case is Ward v. Flagship Credit Acceptance LLC, case number 2:17-cv-02069, in the U.S. District Court for the Eastern District of Pennsylvania. [GN] FLETCHER BUILDING: Faces Probe Over Non-Compliant Steel Mesh ------------------------------------------------------------ Auckland lawyer Adina Thorn says that the Commerce Commission's latest investigation into the supply of allegedly non-compliant steel by Fletcher Building shows that problems with the importing of poor quality steel into New Zealand are greater than previously suspected. Adina Thorn Lawyers is putting together a class action against Steel and Tube Limited and other steel manufacturers and suppliers, after a previous investigation by the Commission raised concerns about the ability of some steel mesh to comply with earthquake standards. Adina says the issue emerged in March last year when it was reported that a significant number of potentially non-compliant steel mesh sheets had been supplied to builders throughout Canterbury from mid-2012. The Commission's further investigation, revealed by Radio New Zealand, relates to rectangular hollow steel (RHS) that was imported and sold by Fletcher subsidiary, Easysteel, in the year to March 2016. RHS is thought to be widely used in construction in this country. The unnamed complainant is reported as saying that its independent testing found that samples of the Australian-sourced steel differed markedly from the certification tests undertaken by the Tonghua Iron and Steel Testing Centre in China. Adina Thorn says that it is critical that steel used in construction complies with the relevant standards -- particularly in regards to its performance in the event of an earthquake. Adina says that people who have concerns about the steel in their buildings (including RHS) should register their interest at www.steelclassaction.co.nz, where they will be asked to complete a simple no-obligation form for evaluation purposes. "We are having a steady level of response to our work on a funded steel mesh class action, details of which are on our website. There is also a list of question and answers there." A funded class action would not cost the participants anything; in return, the funder receives a share of any proceeds. Adina Thorn Lawyers is also leading the NZ$200 million plus funded class "faulty cladding" action against the James Hardie Group of companies. This separate action involves more than 1,000 separate properties and the owners have allegedly suffered significant losses and health issues arising from the use of non-performing cladding materials. That action is funded by the UK's largest litigation funder. [GN] FMS INC: Vega Moves for Class Certification Under Campbell-Ewald ---------------------------------------------------------------- Amy Vega moves the Court to certify the class described in the complaint of the lawsuit titled AMY VEGA, Individually and on Behalf of All Others Similarly Situated v. FMS, INC., Case No. 2:17-cv-00567-NJ (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. Dicta in the Supreme Court's decision in Campbell-Ewald Co. v. Gomez, 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 individual claim with the court and having the court enter judgment in the plaintiff's favor prior to the filing of a class certification motion, the Plaintiff contends, citing Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion. Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), overruled on other grounds, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of that motion [for class certification] protects a putative class from attempts to buy off the named plaintiffs."). The Plaintiff is obligated to move for class certification to protect the interests of the putative class, the Plaintiff asserts. More than one defendant has already attempted the scheme contemplated in Campbell-Ewald. See Severns v. Eastern Account Systems of Connecticut, Inc., Case No. 15-cv-1168, 2016 U.S. Dist. LEXIS 23164 (E.D. Wis. Feb. 24, 2016). Judge Randa denied the defendant's request to deposit funds on grounds that a class certification motion was pending. As the Motion to certify a class 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 short motion to certify and stay should suffice until an amended motion is filed, the Plaintiff contends. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=RrMEtAPG 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 FORD MOTOR CREDIT: Appeal in "Agrawal" Class Action Underway ------------------------------------------------------------ Ford Motor Credit Company LLC disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2017 that it plans to file a response to an appeal pending in the Supreme Court of Ohio related to a class certification ruling in the case Ford Motor Credit Company v. Sudesh Agrawal. On January 18, 2011, a state trial court judge in Cuyahoga County, Ohio, certified a nationwide class action with an Ohio subclass in a counterclaim arising out of a collection action. Class claimants allege breach of contract, fraud, and statutory violations for Ford Credit's lease-end wear and use charges. Class claimants allege that the standard applied by Ford Credit in determining the condition of vehicles at lease-end is different than the standard set forth in claimants' leases. The Court of Appeals of Ohio, Eighth Appellate District, affirmed nationwide class certification and certification of an Ohio subclass. The Company appealed, and on December 17, 2013, the Supreme Court of Ohio reversed the Court of Appeals and remanded the case for further proceedings. On March 13, 2014, the Court of Appeals reversed the trial court order certifying the classes and remanded the case for further proceedings. On September 28, 2015, the trial court re-certified a nationwide class action with an Ohio subclass. The Company appealed, and on September 22, 2016, the Court of Appeals reversed the trial court order certifying the classes and remanded the case for further proceedings. On April 24, 2017, the claimant filed an appeal to the Supreme Court of Ohio. Ford Motor Credit Company LLC, through its subsidiaries, provides various automotive financing products to and through automotive dealers worldwide. It offers retail financing products, such as retail installment sale contracts for new and used vehicles, as well as direct financing leases for new vehicles to retail and commercial customers, including leasing companies, government entities, daily rental companies, and fleet customers. The Company was founded in 1959 and is headquartered in Dearborn, Michigan. Ford Motor Credit Company LLC is a subsidiary of Ford Holdings LLC. FREDDIE MAC: Ohio Public Employees' Suit Still Pending ------------------------------------------------------ Federal Home Loan Mortgage Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 2, 2017, for the quarterly period ended March 31, 2017, that the company continues to defend against the case, Ohio Public Employees Retirement System vs. Freddie Mac, Syron, et al. This putative securities class action lawsuit was filed against Freddie Mac and certain former officers on January 18, 2008 in the U.S. District Court for the Northern District of Ohio purportedly on behalf of a class of purchasers of Freddie Mac stock from August 1, 2006 through November 20, 2007. FHFA later intervened as Conservator, and the plaintiff amended its complaint on several occasions. The plaintiff alleged, among other things, that the defendants violated federal securities laws by making false and misleading statements concerning our business, risk management, and the procedures we put into place to protect the company from problems in the mortgage industry. The plaintiff seeks unspecified damages and interest, and reasonable costs and expenses, including attorney and expert fees. In October 2013, defendants filed motions to dismiss the complaint. In October 2014, the District Court granted defendants' motions and dismissed the case in its entirety against all defendants, with prejudice. In November 2014, plaintiff filed a notice of appeal in the U.S. Court of Appeals for the Sixth Circuit. On July 20, 2016, the Court of Appeals reversed the District Court's dismissal and remanded the case to the District Court for further proceedings. The Company said, "At present, it is not possible for us to predict the probable outcome of this lawsuit or any potential effect on our business, financial condition, liquidity, or results of operations. In addition, we are unable to reasonably estimate the possible loss or range of possible loss in the event of an adverse judgment in the foregoing matter due to the following factors, among others: the inherent uncertainty of pre-trial litigation and the fact that the District Court has not yet ruled upon motions for class certification or summary judgment. In particular, absent the certification of a class, the identification of a class period, and the identification of the alleged statement or statements that survive dispositive motions, we cannot reasonably estimate any possible loss or range of possible loss." Freddie Mac is a GSE chartered by Congress in 1970. Its public mission is to provide liquidity, stability, and affordability to the U.S. housing market. It purchases residential mortgage loans originated by lenders. In most instances, it packages these loans into mortgage-related securities, which are guaranteed by Freddie Mac and sold in the global capital markets. It also invests in mortgage loans and mortgage-related securities. It does not originate loans or lend money directly to borrowers. FREDDIE MAC: Appeals Court Wants Response to Panel Rehearing Bids ----------------------------------------------------------------- Federal Home Loan Mortgage Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 2, 2017, for the quarterly period ended March 31, 2017, that in the case, In re Fannie Mae/Freddie Mac Senior Preferred Stock Purchase Agreement Class Action Litigations, an appeals court ordered a response to petitions for panel rehearing. This case is the result of the consolidation of three putative class action lawsuits: Cacciapelle and Bareiss vs. Federal National Mortgage Association, Federal Home Loan Mortgage Corporation and FHFA, filed on July 29, 2013; American European Insurance Company vs. Federal National Mortgage Association, Federal Home Loan Mortgage Corporation and FHFA, filed on July 30, 2013; and Marneu Holdings, Co. vs. FHFA, Treasury, Federal National Mortgage Association and Federal Home Loan Mortgage Corporation, filed on September 18, 2013. (The Marneu case was also filed as a shareholder derivative lawsuit.) A consolidated amended complaint was filed in December 2013. In the consolidated amended complaint, plaintiffs allege, among other items, that the August 2012 amendment to the Purchase Agreement breached Freddie Mac's and Fannie Mae's respective contracts with the holders of junior preferred stock and common stock and the covenant of good faith and fair dealing inherent in such contracts. Plaintiffs sought unspecified damages, equitable and injunctive relief, and costs and expenses, including attorney and expert fees. The Cacciapelle and American European Insurance Company lawsuits were filed purportedly on behalf of a class of purchasers of junior preferred stock issued by Freddie Mac or Fannie Mae who held stock prior to, and as of, August 17, 2012. The Marneu lawsuit was filed purportedly on behalf of a class of purchasers of junior preferred stock and purchasers of common stock issued by Freddie Mac or Fannie Mae over a not-yet-defined period of time. Arrowood Indemnity Company vs. Federal National Mortgage Association, Federal Home Loan Mortgage Corporation, FHFA and Treasury. This case was filed on September 20, 2013. The allegations and demands made by plaintiffs in this case were generally similar to those made by the plaintiffs in the In re Fannie Mae/Freddie Mac Senior Preferred Stock Purchase Agreement Class Action Litigations case described above. Plaintiffs in the Arrowood lawsuit also requested that, if injunctive relief were not granted, the Arrowood plaintiffs be awarded damages against the defendants in an amount to be determined including, but not limited to, the aggregate par value of their junior preferred stock, the total of which they stated to be approximately $42 million. American European Insurance Company, Cacciapalle and Miller vs. Treasury and FHFA. This case was filed as a shareholder derivative lawsuit, purportedly on behalf of Freddie Mac as a "nominal" defendant, on July 30, 2014. The complaint alleged that, through the August 2012 amendment to the Purchase Agreement, Treasury and FHFA breached their respective fiduciary duties to Freddie Mac, causing Freddie Mac to suffer damages. The plaintiffs asked that Freddie Mac be awarded compensatory damages and disgorgement, as well as attorneys' fees, costs and other expenses. FHFA, joined by Freddie Mac and Fannie Mae, moved to dismiss the In re Fannie Mae/Freddie Mac Senior Preferred Stock Purchase Agreement Class Action Litigations case and the other related cases in January 2014. Treasury filed a motion to dismiss the same day. In September 2014, the District Court granted the motions and dismissed the plaintiffs' claims. In October 2014, plaintiffs in the In re Fannie Mae/Freddie Mac Senior Preferred Stock Purchase Agreement Class Action Litigations case filed a notice of appeal of the District Court's decision. The scope of this appeal includes the American European Insurance Company shareholder derivative lawsuit. In October 2014, Arrowood filed a notice of appeal of the District Court's decision. On February 21, 2017, the U.S. Court of Appeals for the District of Columbia Circuit affirmed in part and remanded in part the appealed decision granting the motions to dismiss. The Court of Appeals affirmed dismissal of all claims except certain claims seeking monetary damages for breach of contract and breach of implied duty of good faith and fair dealing. On March 24, 2017, institutional plaintiffs including Arrowood filed a petition for panel rehearing, and on March 31, 2017, the class plaintiffs in the American European Insurance Company litigation also filed a petition for panel rehearing with respect to certain of the claims. On April 18, 2017, the court ordered a response to both petitions from the Appellees. Freddie Mac is a GSE chartered by Congress in 1970. Its public mission is to provide liquidity, stability, and affordability to the U.S. housing market. It purchases residential mortgage loans originated by lenders. In most instances, it packages these loans into mortgage-related securities, which are guaranteed by Freddie Mac and sold in the global capital markets. It also invests in mortgage loans and mortgage-related securities. It does not originate loans or lend money directly to borrowers. FREDDIE MAC: Moved to Dismiss Jacobs and Hindes Suit ---------------------------------------------------- Federal Home Loan Mortgage Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 2, 2017, for the quarterly period ended March 31, 2017, that the FHFA, Freddie Mac, Fannie Mae, and Treasury each moved to dismiss the amended complaint in the case, Jacobs and Hindes vs. FHFA and Treasury. This case was filed on August 17, 2015 as a putative class action lawsuit purportedly on behalf of a class of holders of preferred stock or common stock issued by Freddie Mac or Fannie Mae. The case was also filed as a shareholder derivative lawsuit, purportedly on behalf of Freddie Mac and Fannie Mae as "nominal" defendants. The complaint alleges, among other items, that the August 2012 amendment to the Purchase Agreement violated applicable state law and constituted a breach of contract, as well as a breach of covenants of good faith and fair dealing. Plaintiffs seek equitable and injunctive relief (including restitution of the monies paid by Freddie Mac and Fannie Mae to Treasury under the net worth sweep dividend), compensatory damages, attorneys' fees, costs and expenses. The case was stayed pending resolution of FHFA's motion to the U.S. Judicial Panel on Multidistrict Litigation to transfer this case to the U.S. District Court for the District of Columbia. This motion was denied on June 2, 2016, and the stay was lifted on July 13, 2016. Plaintiffs filed an application for certification of a question to the Delaware and Virginia Supreme Courts, which was denied on September 12, 2016. On September 7, 2016, plaintiffs filed a motion to amend the complaint, which the Court granted on February 24, 2017. On April 17, 2017, FHFA, Freddie Mac, Fannie Mae, and Treasury each moved to dismiss the amended complaint. Freddie Mac is a GSE chartered by Congress in 1970. Its public mission is to provide liquidity, stability, and affordability to the U.S. housing market. It purchases residential mortgage loans originated by lenders. In most instances, it packages these loans into mortgage-related securities, which are guaranteed by Freddie Mac and sold in the global capital markets. It also invests in mortgage loans and mortgage-related securities. It does not originate loans or lend money directly to borrowers. GLOBALTRANZ ENTERPRISES: "Delnoce" Seeks Unpaid Overtime Pay ------------------------------------------------------------ Sean Delnoce, Colin Russell, Brian Zimmerman and Austin Edwards, Plaintiffs, v. GlobalTranz Enterprises, Inc., Andrew J. Leto and Jane Doe Leto, a married couple, Michael Leto and Jane Doe Leto II, a married couple, and Marty Sinicrope and Jane Doe Sinicrope, a married couple, Defendants, Case No. 2:17-cv-01278 (D. Ariz., April 28, 2017) seeks equitable relief, overtime pay, liquidated damages, attorneys' fees, costs, and interest under the Fair Labor Standards Act. Plaintiffs are all current and former Logistics Specialists and Carrier Representatives who were employed by Defendants' logistics company, GlobalTranz, headquartered in Scottsdale, Arizona, that facilitates domestic transportation and functions as a broker connecting companies that need to ship freight with carriers to ship that freight. [BN] Plaintiff is represented by: Clifford P. Bendau II, Esq. Christopher J. Bendau, Esq. THE BENDAU LAW FIRM PLLC P.O. Box 97066 Phoenix, AZ 85060 Telephone: (480) 382-5176 Email: cliffordbendau@bendaulaw.com GRAMERCY PROPERTY: Baltimore County Suit Dismissed -------------------------------------------------- Gramercy Property Trust said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 2, 2017, for the quarterly period ended March 31, 2017, that plaintiffs in a Maryland lawsuit filed a notice of dismissal with prejudice with the Circuit Court for Baltimore County, Maryland, which the court entered on April 11, 2017. Legacy Gramercy, its board of directors, and Chambers were named as defendants in various putative class action lawsuits brought by purported Legacy Gramercy stockholders challenging the Merger. The lawsuits were consolidated into a New York state court action, or the New York Action, and a Maryland state court action, or the Maryland Action. On March 1, 2017, the court entered a Final Order and Judgment approving the settlement, awarding plaintiffs' attorney fees and expenses, and dismissing the New York Action with prejudice. On March 22, 2017, pursuant to the stipulation of settlement, plaintiffs in the Maryland Action filed a notice of dismissal with prejudice with the Circuit Court for Baltimore County, Maryland, which the court entered on April 11, 2017. Prior to December 17, 2015, the Company was known as Chambers Street Properties, or Chambers. On December 17, 2015, Chambers completed a merger, or the Merger, with Gramercy Property Trust Inc. While Chambers was the surviving legal entity, immediately following consummation of the Merger, the Company changed its name to "Gramercy Property Trust" and its New York Stock Exchange, or NYSE, trading symbol to "GPT." GT ADVANCED: Must Face Shareholders' Class Action ------------------------------------------------- Bob Sanders, writing for NH Business Review, reports that a U.S. District Court judge in Concord has refused to dismiss shareholders' class action lawsuit against tech giant Apple and the former executives and board members of GT Advanced Technologies, though underwriters of GTAT stock offerings have settled with them. This increases the likelihood that the lawsuit -- which charges that both companies misled investors that GTAT's deal to supply Apple with sapphire for its iPhone was intact when it was actually falling apart -- will go to trial, if it's not settled beforehand. It also mean that assets of the world's wealthiest company are still in play, but just barely. U.S. District Court Joseph N. Laplante ruled May 4 that Apple could be on the hook because it might have controlled GTAT, even though he said such allegations are "thin." The allegations, he said "are just barely sufficient to withstand Apple's motion to dismiss," he wrote. The class action suit is a consolidation of 13 shareholder suits filed after GTAT's disastrous deal with Apple collapsed, resulting in Merrimack-based company going bankrupt in October 2014 with $1.3 billion in debt about a year after it was signed. The suit names former CEO Thomas Gutierrez, the ex-chief operating officer, Daniel W. Squiller, ex-CFOs Richard J. Gaynor and Raja Bal, ex-general counsel Hoil Kim, Apple and three underwriters, Canaccord Genuity Inc., Goldman, Sachs & Co. and Morgan Stanley & Co. LLC. Judge Laplante said that the parties asked him not to rule on the underwriters because they have reached a settlement, the details of which were not released. Judge Laplante dismissed most, but not all, of the charges against Mr. Kim. But he upheld all the charges against the other executives Although GTAT has since sold off most of its assets to private investors who are now running the downsized legacy company, the bankruptcy trustee is sorting out $50 million in leftover assets to distribute to creditors, and trying to collect more through litigation. Bankruptcy trustee's suit Just two weeks ago, the bankruptcy trustee launched a lawsuit against Messrs. Gutierrez and Squiller, echoing many of the same charges as the class action. Indeed, the federal judge proposed a consolidation of both lawsuits. But in the trustee suit, the board members -- defendants in the shareholders' suit -- are considered duped by the executives, and the trustee suit cites CFO Gaynor, a securities suit defendant, as having tried to warn his superiors about the Apple deal, even resigning because of it. But both lawsuits describe the same situation. GTAT, which started out manufacture equipment to make material for solar panels and cellphones, agreed to produce sapphire to toughen Apple's iPhone screen in a deal financed by Apple. The suits claim officials did this even though they were warned by their own employees that GTAT was not even close to developing the technology to do so. Officials said they felt the deal was "onerously and massively one-sided," since GTAT was a supplier, with production, exclusivity and non-confidentiality agreements, that swallowed all the risk. Meanwhile, the officials presented an optimistic front to investors, saying that the deal was on track when it was coming off the rails, both lawsuits claim. Mr. Laplante seemed to back up some of the suits' allegations, but he was more skeptical about claims against Apple, which had urged the judge to dismiss plaintiffs' claims against it, arguing that they "represent an unprecedented, unwarranted and unsupportable expansion of liability under the federal securities laws." Even so, this was good news for investors like Tom Ragatz, who had taken $146,000 -- nearly all his 401(k) and his children's college savings -- while working at a factory outside of Wichita, Kan., to buy GTAT stock. He said h made the purchase because he believed in the assurance from company officials that everything was proceeding well. "It hadn't occurred to me that that people would be dishonest, and I didn't think it would be so abrupt," said Mr. Ragatz. He had to take a second mortgage on his home to get his kids through college, and he has slowly been rebuilding his retirement. He doesn't expect to get all his money back, "but even a penny on the dollar is something. To hear the judge say that it's plausible -- that is an exciting development." [GN] HERTZ GLOBAL: NJ Court Dismisses Securities Class Action -------------------------------------------------------- Shearman & Sterling LLP, in an article for JDSupra, reports that on April 27, 2017, Judge Madeline Cox Arleo of the United States District Court for the District of New Jersey dismissed a putative securities fraud class action against Hertz Global Holdings, Inc. and certain of its executives, in which plaintiffs alleged that the company knew or consciously disregarded that statements made in multiple financial reports between 2011 and 2013 were false, in violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 ("Exchange Act"). In re Hertz Global Holdings, Inc. Sec. Litig., 2017 WL 1536223 (D.N.J. Apr. 27, 2017). The Court had already dismissed this case twice without prejudice. This time the Court dismissed the claims with prejudice. Hertz operates a global car and equipment rental business. In March 2014, the company disclosed that it had identified accounting errors in the amount of $46.3 million that might require adjustments to its 2011-2013 results. Over the ensuing years, the magnitude of the adjustments increased. In July 2015, after two internal investigations, the company issued a final restatement of financials for portions of the 2011-2014 periods. According to the restatement, Hertz had overstated its 2011-13 net income by approximately $132 million. Based on Hertz's investigations and restatement, Plaintiffs asserted that Hertz had made a series of false historical and forward-looking statements during ten quarters leading up to the July 2015 disclosure. The Court first held that many of the allegedly false statements were non-actionable puffery. Plaintiffs alleged that statements about the company's "strong" and "record" results and growth were false. The Court concluded that these were not determinate, verifiable statements upon which reasonable investors could rely. The Court dismissed plaintiffs' remaining claims because plaintiffs failed to adequately plead fraudulent intent. While the Court agreed with plaintiffs that a restatement of financial results can be probative of scienter, the fact of a restatement was not alone sufficient. Here, the Court found that Hertz executives may not have known the challenged statements were false due to the diffuse nature of the company's accounting problems. There was no one precipitous error in Hertz's accounting; rather, the restatements identified a combination of errors in over fifteen areas of the company that resulted in the misstated financials. The Court also rejected plaintiffs' allegation that management's admittedly "inappropriate tone at the top" led to material weakness in the company's internal controls and supported a strong inference of scienter. The Court found that allegations of mismanagement, without more, cannot support a strong inference of fraudulent intent. For that, plaintiffs needed to provide additional allegations of wrongdoing -- such as specific red flags that management ignored. Here, they did not. This case serves as a reminder that a strong inference of fraudulent intent is not established by financial restatements (even large ones) or mismanagement alone. [GN] HONGLI CLEAN: Rosen Law Firm Files Securities Class Action ---------------------------------------------------------- Rosen Law Firm, a global investor rights law firm, on May 8 disclosed that it has filed a class action lawsuit on behalf of purchasers of Hongli Clean Energy Technologies Corp. securities (NASDAQ:CETC) from October 13, 2015 through April 7, 2017, inclusive (the "Class Period"). The lawsuit seeks to recover damages for Hongli investors under the federal securities laws. To join the Hongli class action, go to http://www.rosenlegal.com/cases-1121.htmlor call Phillip Kim, Esq. or Kevin Chan, Esq. toll-free at 866-767-3653 or email pkim@rosenlegal.com or kchan@rosenlegal.com for information on the class action. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY ALSO REMAIN AN ABSENT CLASS MEMBER AND DO NOTHING AT THIS POINT. YOU MAY RETAIN COUNSEL OF YOUR CHOICE. According to the lawsuit, throughout the Class Period defendants made false and/or misleading statements and/or failed to disclose that: (1) Hongli did not properly record the impairment of its assets; and (2) as a result, Hongli's public statements were materially false and misleading 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 July 7, 2017. If you wish to join the litigation, go to http://www.rosenlegal.com/cases-1121.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. Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. [GN] IDAHO: Correction Dep't Sued Over Failure to Provide Kosher Meals ----------------------------------------------------------------- Idaho State Journal reports that the ACLU of Idaho and Boise civil rights law firm Ferguson Durham PLLC have filed a class action lawsuit seeking a kosher diet for Jewish prisoners incarcerated in Idaho. The lawsuit comes after the ACLU's unsuccessful efforts to obtain religious accommodations for Jewish prisoners without the need for litigation. Filed in federal court in Idaho, the case asks for a ruling, called a preliminary injunction, requiring the Idaho Department of Correction to provide kosher meals immediately. "We hear a lot about religious freedom in Idaho," said ACLU of Idaho Legal Director Richard Eppink. "Religious freedom is one of the most fundamental rights guaranteed under the First Amendment, whether you are incarcerated or not. Instead of upholding the religious freedoms of all in Idaho, the State is forcing Jewish prisoners to defile themselves every time they eat, compelling them to choose between starvation and violating their core religious beliefs." The class action is brought by four Jewish prisoners incarcerated by IDOC. The prisoners represent a variety of Jewish practice, ranging from Orthodox to Reform, but all need kosher food to follow the basic dietary requirements of their religion. The case is filed just weeks after the end of Passover, during which two of the plaintiffs in the new lawsuit starved on only fruit and matzo because of IDOC's refusal to provide meals that were kosher for Passover. "Religion is a powerful motivator towards an improved life, and it is especially important to many prisoners in their path to rehabilitation," said plaintiffs' attorney Craig Durham of Ferguson Durham, PLLC, co-counsel with the ACLU of Idaho in the new case. "The State of Idaho's religious discrimination is not just unconstitutional, but counterproductive to the goal of corrections." The class action lawsuit claims that IDOC has violated the prisoners' constitutional rights to free exercise of religion and to equal protection, pointing out that IDOC provides meals that meet the dietary requirements of all but the Jewish religion. The lawsuit also claims that the State is violating federal and Idaho state laws that liberally protect religious freedom.[GN] A copy of the complaint is available online at: https://is.gd/a2903E INDEPENDENT BANK GROUP: Unit Still Defends BOH-Related Lawsuit -------------------------------------------------------------- Independent Bank Group, Inc. (IBG) disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2017 that its subsidiary continues to defend itself in a class action complaint related to Bank of Houston. IBG, through subsidiary Independent Bank, a Texas state banking corporation (Bank) (collectively known as the Company), provides a full range of banking services to individual and corporate customers in the North Texas, Central Texas and Houston areas through its various branch locations. Independent Bank is a party to a legal proceeding inherited in connection with its acquisition of BOH Holdings, Inc. and its subsidiary, Bank of Houston (BOH) that was completed on April 15, 2014. Several entities related to R. A. Stanford including Stanford International Bank, Ltd. (SIBL), had deposit accounts at BOH. Certain individuals who had purchased certificates of deposit from SIBL filed a class action lawsuit against several banks, including BOH, on November 11, 2009 in the U.S. District Court Northern District of Texas, Dallas Division, alleging, among other things, that the plaintiffs were victims of fraud by SIBL and other Stanford Entities and seeking to recover damages and alleged fraudulent transfers by the defendant banks. On May 1, 2015, the plaintiffs filed a motion requesting permission to file a Second Amended Class Action Complaint in this case, which motion was subsequently granted. The Second Amended Class Action Complaint asserted previously unasserted claims, including aiding and abetting or participation in a fraudulent scheme based upon the large amount of deposits that the Stanford Entities held at BOH and the alleged knowledge of certain BOH officers. Given the new allegations, Independent Bank notified its insurance carriers of the claims made in the Second Amended Class Action Complaint. The insurance carriers have initially indicated that a "loss" has not yet occurred or that the claims are not covered by the policies. However, Independent Bank is continuing to pursue insurance coverage for these claims, as well as for the reimbursement of defense costs, through the initiation of litigation and other means. IBG stated: "Independent Bank believes that the claims made in this lawsuit are without merit and is vigorously defending this lawsuit. This is complex litigation involving a number of procedural matters and issues. As such, Independent Bank is unable to predict when this matter may be resolved and, given the uncertainty of litigation, the ultimate outcome of, or potential costs or damages arising from, this case." Independent Bank Group, Inc. operates as the bank holding company for Independent Bank that provides a range of commercial banking products and services to businesses, professionals, and individuals in the United States. It offers various deposit products, including checking and savings accounts, demand accounts, money market accounts, and certificates of deposit, as well as individual retirement accounts. Independent Bank Group, Inc. was founded in 1988 and is headquartered in McKinney, Texas. INTEL CORP: Still Defends McAfee Shareholder Class Litigation ------------------------------------------------------------- Intel Corporation continues to defend itself in a consolidated class action suit related to its acquisition of McAfee common stock, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended April 1, 2017. On August 19, 2010, the Company announced that it had agreed to acquire all of the common stock of McAfee, Inc. for US$48.00 per share. Four McAfee shareholders filed putative class-action lawsuits in Santa Clara County, California Superior Court challenging the proposed transaction. The cases were ordered consolidated in September 2010. Plaintiffs filed an amended complaint that named former McAfee board members, McAfee, and Intel as defendants, and alleged that the McAfee board members breached their fiduciary duties and that McAfee and Intel aided and abetted those breaches of duty. The complaint requested rescission of the merger agreement, such other equitable relief as the court may deem proper, and an award of damages in an unspecified amount. In June 2012, the plaintiffs' damages expert asserted that the value of a McAfee share for the purposes of assessing damages should be US$62.08. In January 2012, the court certified the action as a class action, appointed the Central Pension Laborers' Fund to act as the class representative, and scheduled trial to begin in January 2013. In March 2012, defendants filed a petition with the California Court of Appeal for a writ of mandate to reverse the class certification order; the petition was denied in June 2012. In March 2012, at defendants' request, the court held that plaintiffs were not entitled to a jury trial and ordered a bench trial. In April 2012, plaintiffs filed a petition with the California Court of Appeal for a writ of mandate to reverse that order, which the court of appeal denied in July 2012. In August 2012, defendants filed a motion for summary judgment. The trial court granted that motion in November 2012, and entered final judgment in the case in February 2013. In April 2013, plaintiffs appealed the final judgment. Intel, McAfee, and McAfee's board of directors filed an opposition to plaintiff's appeal in December 2014. The Company said, "Because the resolution of the appeal may materially impact the scope and nature of the proceeding, we are unable to make a reasonable estimate of the potential loss or range of losses, if any, arising from this matter. We dispute the class-action claims and intend to continue to defend the lawsuit vigorously." Intel Corporation designs, manufactures, and sells computer, networking, and communications platforms worldwide. It operates through Client Computing Group, Data Center Group, Internet of Things Group, Non-Volatile Memory Solutions Group, Intel Security Group, Programmable Solutions Group, and All Other segments. The company was founded in 1968 and is based in Santa Clara, California. INVESTOR INCOME: Appeals Decision in "He" Suit to Sixth Circuit --------------------------------------------------------------- Defendants Assets Unlimited, LLC, IIP Ohio, LLC, Investor Income Properties, LLC and Davor Rom filed an appeal from a court ruling in the lawsuit entitled Rui He, et al. v. Davor Rom, et al., Case No. 1:15-cv-01869, in the U.S. District Court for the Northern District of Ohio at Cleveland. As previously reported in the Class Action Reporter, Plaintiffs Rui He, Xiaoguang Zheng, and Zhenfen Huang represent a putative class of investors based in China, who invested in, and claimed to have been scammed by, American real estate investor Davor Rom and his companies Investor Income Properties, LLC, IIP Ohio, IIP Management, IIP Cleveland Regeneration, LLC, IIP Cleveland Regeneration 2, LLC, Assets Unlimited, LLC, and IIP Akron, LLC. The appellate case is captioned as Rui He, et al. v. Davor Rom, et al., Case No. 17-3411, in the United States Court of Appeals for the Sixth Circuit.[BN] Plaintiffs-Appellees RUI HE, XIAOGUANG ZHENG and ZHENFEN HUANG, on behalf of themselves and all others similarly situated, are represented by: Lei Jiang, Esq. LEI JIANG LLC 26943 Westwood Road Westlake, OH 44145 Telephone: (440) 835-2271 Facsimile: (440) 835-2817 E-mail: ljiang@leijianglaw.com - and - David J. Kovach, Esq. LICATA & ASSOCIATES 6480 Rockside Woods Boulevard, S., Suite 390 Independence, OH 44131-0000 Telephone: (216) 573-6000 E-mail: djk@licatalaw.com Defendants-Appellants DAVOR ROM, ASSETS UNLIMITED, LLC, INVESTOR INCOME PROPERTIES, LLC, and IIP OHIO, LLC, are represented by: Jeffrey W. Krueger, Esq. CONDENI LAW 19038 Stony Point Drive Cleveland, OH 44136 Telephone: (216) 403-7806 E-mail: jeffk@condenilaw.com ITC HOLDINGS: May 25 Hearing on Preliminary Settlement Approval --------------------------------------------------------------- ITC Holdings Corp. said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 2, 2017, for the quarterly period ended March 31, 2017, that the court has scheduled a hearing on preliminary settlement approval for May 25, 2017. On February 9, 2016, ITC Holdings entered into the Merger Agreement with Fortis, FortisUS and Merger Sub. On April 20, 2016, Fortis reached a definitive agreement with GIC for GIC to acquire an indirect 19.9% equity interest in ITC Holdings upon completion of the Merger. On October 14, 2016, ITC Holdings and Fortis completed the Merger contemplated by the Merger Agreement. On the same date, the common shares of ITC Holdings were delisted from the NYSE and the common shares of Fortis were listed and began trading on the NYSE. Fortis continues to have its shares listed on the Toronto Stock Exchange. As a result of the Merger, Merger Sub merged with and into ITC Holdings with ITC Holdings continuing as the surviving corporation and becoming a majority owned indirect subsidiary of FortisUS. In the Merger, ITC Holdings shareholders received $22.57 in cash and 0.7520 Fortis common shares for each share of common stock of ITC Holdings. Following the announcement of the Merger, four putative state class action lawsuits were filed by purported shareholders of ITC Holdings on behalf of a purported class of ITC Holdings shareholders. Initially, the four actions (Paolo Guerra v. Albert Ernst, et al., Harvey Siegelman v. Joseph L. Welch, et al., Alan Poland v. Fortis Inc., et al., Sanjiv Mehrotra v. Joseph L. Welch, et al.) were filed in the Oakland County Circuit Court of the State of Michigan. The complaints name as defendants a combination of ITC Holdings and the individual members of the ITC Holdings board of directors, Fortis, FortisUS and Merger Sub. The complaints generally allege, among other things, that (1) ITC Holdings' directors breached their fiduciary duties in connection with the Merger Agreement, (including, but not limited to, various alleged breaches of duties of good faith, loyalty, care and independence), (2) ITC Holdings' directors failed to take appropriate steps to maximize shareholder value and claims that the Merger Agreement contains several deal protection provisions that are unnecessarily preclusive and (3) a combination of ITC Holdings, Fortis, FortisUS and Merger Sub aided and abetted the purported breaches of fiduciary duties. The complaints sought class action certification and a variety of relief including, among other things, enjoining defendants from completing the Merger, unspecified damages, and costs, including attorneys' fees and expenses. The Siegelman case was voluntarily dismissed by the plaintiff on March 22, 2016. On March 23, 2016, the state court entered an order directing that the related cases be consolidated under the caption In re ITC Holdings Corporation Shareholder Litigation. On April 8, 2016, Poland filed an amended complaint to add derivative claims on behalf of ITC Holdings. On March 14, 2016, the Guerra state court action was dismissed by the plaintiff and refiled in the United States District Court, Eastern District of Michigan, as Paolo Guerra v. Albert Ernst, et al. The federal complaint named the same defendants (plus FortisUS), asserted the same general allegations and sought the same types of relief as in the state court cases. On March 25, 2016, Guerra amended his federal complaint. The amended complaint dropped Fortis US, Fortis and Merger Sub as defendants and added claims alleging that the defendants violated Sections 14(a) and 20(a) of the Exchange Act because the preliminary proxy statement/prospectus, filed with the SEC in connection with the special meeting of shareholders to approve the Merger Agreement, was allegedly materially misleading and allegedly omitted material facts that were necessary to render it non-misleading. Another lawsuit was filed on April 8, 2016 in the United States District Court, Eastern District of Michigan captioned Harold Severance v. Joseph L. Welch et al. against the individual members of the ITC Holdings board of directors, Fortis, FortisUS and Merger Sub, asserting the same general allegations and seeking the same type of relief as Guerra. On April 22, 2016, the Mehrotra state court action was dismissed by the plaintiff and refiled in the United States District Court, Eastern District of Michigan, as Sanjiv Mehrotra v. Joseph L. Welch, et al. With the exception of Fortis, the federal complaint named the same defendants and asserted the same general allegations as the other federal complaints. On June 8, 2016, the Oakland County Circuit Court of the State of Michigan denied a motion for summary disposition filed by ITC Holdings and the individual members of the ITC Holdings board of directors. ITC Holdings voluntarily made supplemental disclosures related to the Merger in response to certain allegations, which are set forth in a Form 8-K filed with the SEC on June 13, 2016. Nothing in those supplemental disclosures shall be deemed an admission of the legal necessity or materiality under applicable laws of any of the disclosures set forth therein. On July 6, 2016, the federal actions were voluntarily dismissed by the federal plaintiffs. The federal plaintiffs reserved the right to make certain other claims, and ITC Holdings and the individual members of the ITC Holdings board of directors reserved the right to oppose any such claim. On July 8, 2016, the plaintiffs in Poland filed a motion for class certification. On July 13, 2016, ITC Holdings and the individual members of the ITC Holdings board of directors filed their respective answers to the amended complaint in Poland. On July 19, 2016, the Poland state court issued a scheduling order, which, among other things, requires the parties to complete discovery by March 10, 2017, and sets a trial date for June 5, 2017. On July 25, 2016, the Poland state court issued an order allowing a new plaintiff, Washtenaw County Employees' Retirement System, to intervene in the Poland case. On January 20, 2017, the defendants filed an additional motion for summary disposition, which was expected to be heard by the Poland state court in March 2017. A hearing on class certification was held on February 9, 2017. In March 2017, the parties reached an agreement in principle to settle the case, subject to formal documentation and court approval. The court stayed the matter, except for settlement- related proceedings, and scheduled a hearing on preliminary settlement approval for May 25, 2017. ITC Holdings does not expect the settlement, if approved, to have a significant impact on its financial condition or results of operations. Through its Regulated Operating Subsidiaries, ITC operates high- voltage systems in Michigan and portions of Iowa, Minnesota, Illinois, Missouri, Kansas and Oklahoma that transmit electricity from generating stations to local distribution facilities connected to its systems. JOEL CARDIS: Faces Class Action Over Unsolicited Autodialed Calls ----------------------------------------------------------------- Shayna Posses, writing for Law360, reports that The Law Offices of Joel Cardis LLC was hit with a proposed class action in Florida federal court alleging that the debt collector bombarded cellphone owners with unsolicited, autodialed calls in violation of the Telephone Consumer Protection Act and the Fair Debt Collection Practices Act. Alycia A. Germond's complaint alleges that she received hundreds of calls from the Pennsylvania-based company trying to collect on a debt throughout 2016, even though the Saint Lucie County, Florida, resident wasn't a customer and had asked that the calls cease. "Defendants caused plaintiff's telephone to ring continuously with intent to annoy, abuse, and harass plaintiff," the complaint says. "Defendants' conduct caused plaintiff worry, frustration, aggravation, distress and lost time." The suit -- which also names company owner Joel Cardis -- says Ms. Germond has had the same phone number for at least two years. But in 2016, she started receiving calls from the company using an automatic telephone dialing system and an artificial or prerecorded voice, the complaint alleges. These calls occurred regularly over the course of the year, averaging three to five times a week, two to three times per day, according to the suit. The company ultimately called her cellphone hundreds of times last year, the complaint says. Ms. Germond, who is not a Cardis customer and didn't agree to receive autodialed calls from the company, repeatedly asked that the calls stop to no avail, the complaint alleges. The company acted willfully and made the calls with full knowledge that its actions were unlawful, Ms. Germond claims. The calls caused Ms. Germond a number of injuries, including filling up her voicemail, invading her privacy, draining her cellphone battery, wasting her time, distracting her and causing her aggravation and annoyance, the suit says. The consumer is far from alone, the complaint alleges, saying the proposed class consists of far more than 50 people. Ms. Germond seeks to represent all people in Florida whose cellphones the company called using an autodialer or an artificial or prerecorded voice without receiving consent over the past four years. The suit seeks damages for the TCPA and FDCPA violations, injunctive relief barring such conduct in the future, and attorneys' fees and costs. Craig B. Sanders, who represents Ms. Germond, told Law360 on May 8 that this suit raises a terrible fact pattern sometimes found in debt-collection cases, in which a company just won't stop calling despite being told numerous times it has the wrong number. But this situation is particularly bad, Sanders said, adding, "I haven't seen a case that involved a consumer receiving hundreds of calls in years." Representatives for the debt collector didn't immediately respond to requests for comment on May 8. Ms. Germond is represented by Craig B. Sanders of Barshay Sanders PLLC. Counsel information for the company wasn't immediately available on May 8. The suit is Germond v. Law Offices of Joel Cardis LLC, suit number 2:17-cv-14152, in the U.S. District Court for the Southern District of Florida. [GN] LIONBRIDGE TECHNOLOGIES: Faces Securities Class Action ------------------------------------------------------ Poonkulali Thangavelu, writing for Chief Investment Officer, reports that an institutional investor, Laborers' Local #231 Pension Fund, has filed a class action lawsuit alleging that Lionbridge Technologies has violated the Securities Exchange Act by misleading shareholders in order to accomplish a "going private" merger with H.I.G. Capital. Lionbridge has described itself as a globalization company, providing translation, online marketing, global content management, and application testing solutions to major brands. According to Robbins Geller Rudman & Dowd, the plaintiff's lawyer, the December 2016 merger called for cash payments of $5.75 per share to Lionbridge shareholders. The lawsuit alleges that Lionbridge misled shareholders about "the company's prospects and value" in a bid to get them to vote for the merger, even though the price offered was not adequate. Management had projected growth in the company's revenues of less than 3.9% a year for several years, a forecast that did not match Lionbridge's average revenue growth of about 7% per year between 2011 and 2015, and also was inconsistent with management's actual strategic plan for the company, the lawsuit alleges. Subsequently, most of Lionbridge's shareholders voted for the merger in February 2017, and the merger was completed. Lionbridge CEO Rory Cowan actually had plans to grow the company into a $1 billion brand, though the merger valued the company at about $356 million, with acquisitions being a key growth factor. The company announced at least one major acquisition just days after the H.I.G deal closed, the complaint alleges. Thus, "while the company planned a series of acquisitions that would boost the company's growth, earnings, and ultimate value, the defendants pitched the merger as if stockholders were being asked to choose between accepting the $5.75 per share and holding shares in a standalone company that would do nothing but muddle along with no growth through acquisitions," the lawsuit alleges. Cowan was also able to roll over a part of his Lionbridge stake into equity in the post-merger company, allowing him to get the benefit of the low purchase price, the lawsuit alleges. At the time of the merger announcement, Ms. Cowan stated, "The acquisition will allow Lionbridge to continue to focus on providing the most innovative language and technology solutions to more than 800 world-leading brands, while accelerating our proven leadership in global content and communications. Our board of directors believes this transaction is in the best interest of our stockholders and affirms Lionbridge's tremendous value and market leadership." Other Lionbridge officers and directors, also defendants in the lawsuit, were able to cash in on their equity awards that had not vested, and also cash out of their illiquid Lionbridge stock holdings, according to the lawsuit. The complaint also states that the Lionbridge financial advisor for the deal, Union Square Advisors, benefited by receiving millions of dollars in fees related to the merger. Lionsbridge declined the opportunity to comment. [GN] LIVING ESSENTIALS: ABC Appeals N.D. Cal. Ruling to Ninth Circuit ---------------------------------------------------------------- Plaintiffs ABC Distributing, Inc., Elite Wholesale, Inc., and Tonic Wholesale, Inc., filed an appeal from a court ruling in their lawsuit styled ABC Distributing, Inc., et al. v. Living Essentials, LLC, et al., Case No. 5:15-cv-02064-NC, in the U.S. District Court for the Northern District of California, San Jose. As previously reported in the Class Action Reporter on April 20, 2017, the Court denied the Defendants' motion to strike the expert testimony of Dr. McDuff and denied the Plaintiffs' motion for class certification. The appellate case is captioned as ABC Distributing, Inc., et al. v. Living Essentials, LLC, et al., Case No. 17-80073, in the United States Court of Appeals for the Ninth Circuit.[BN] Plaintiffs-Petitioners ABC DISTRIBUTING, INC., on behalf of themselves and all others similarly situated, ELITE WHOLESALE, INC., on behalf of themselves and all others similarly situated, and TONIC WHOLESALE, INC., on behalf of themselves and all others similarly situated, DBA Ace Wholesale, are represented by: Mark Poe, Esq. Randolph Gaw, Esq. Victor Meng, Esq. Samuel S. Song, Esq. GAW & POE LLP 4 Embarcadero, Suite 1400 San Francisco, CA 94111 Telephone: (415) 766 7451 Facsimile: (415) 7370642 E-mail: mpoe@gawpoe.com rgaw@gawpoe.com vmeng@gawpoe.com ssong@gawpoe.com Defendants-Respondents LIVING ESSENTIALS, LLC, and INNOVATION VENTURES LLC are represented by: Edward C. Duckers, Esq. STOEL RIVES, LLP 555 Montgomery Street San Francisco, CA 94111 Telephone: (415) 617-8900 E-mail: ed.duckers@stoel.com - and - Bryan L. Hawkins, Esq. STOEL RIVES LLP 500 Capitol Mall Sacramento, CA 95814 Telephone: (916) 447-0700 E-mail: bryan.hawkins@stoel.com - and - Daryl Marc Crone, Esq. Gerald Edward Hawxhurst, Esq. CRONE HAWXHURST LLP 10880 Wilshire Boulevard Los Angeles, CA 90024 Telephone: (310) 893-5150 E-mail: dcrone@bmchlaw.com jerry@cronehawxhurst.com LLR INC: Wins Bid to Deny Webster's Class Certification Motion -------------------------------------------------------------- The Hon. David Stewart Cercone entered an order in the lawsuit entitled RACHAEL WEBSTER, individually and on behalf of all others similarly situated v. LLR, INC., d/b/a LuLaRoe, Case No. 2:17-cv- 00225-DSC (W.D. Pa.): -- granting the Defendant's motion to deny the Plaintiff's motion for class certification as premature; and -- denying as premature the Plaintiff's motion to certify class. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=LRostjsu The Plaintiff is represented by: Kelly K. Iverson, Esq. Alex M. Lacey, Esq. COHEN & GRIGSBY, PC 625 Liberty Avenue, 5th Floor Pittsburgh, PA 15222-3152 Telephone: (412) 297-4900 Facsimile: (412) 209-0672 E-mail: kiverson@cohenlaw.com alacey@cohenlaw.com - and - R. Bruce Carlson, Esq. Gary F. Lynch, Esq. CARLSON LYNCH SWEET KILPELA & CARPENTER 1133 Penn Avenue, 5th Floor Pittsburgh, PA 15222 Telephone: (412) 322-9243 Facsimile: (412) 231-0246 E-mail: bcarlson@carlsonlynch.com glynch@carlsonlynch.com The Defendant is represented by: Timothy P. Ryan, Esq. Thomas E. Sanchez, Esq. ECKERT SEAMANS CHERIN & MELLOTT, LLC 600 Grant St., 44th Floor Pittsburgh, PA 15219 Telephone: (412) 566-5990 Facsimile: (412) 566-6099 E-mail: tryan@eckertseamans.com tsanchez@eckertseamans.com - and - Tiffanny Brosnan, Esq. Steven T. Graham, Esq. SNELL & WILMER L.L.P. Plaza Tower, Suite 1400 600 Anton Boulevard Costa Mesa, CA 92626-7689 Telephone: (714) 427-7000 Facsimile: (714) 427-7799 E-mail: tbrosnan@swlaw.com sgraham@swlaw.com LOUISIANA: Class Action Over Lapsed Auto Coverage Fine Okayed ------------------------------------------------------------- Joe Gyan Jr., writing for The Advocate, reports that a New Orleans woman's lawsuit challenging the amount of money she had to pay the state to reinstate her driver's license after her auto insurance lapsed can move forward, a judge in Baton Rouge ruled. Shawn Noell Holliday is seeking to have the suit she filed last October certified as a class action on behalf of the hundreds of thousands of Louisiana motorists who, like her, received collection letters in October 2015 imposing fines for their lapsed insurance coverage. The state is seeking an estimated $444 million from those motorists. Critics have labeled the effort a money grab by the cash-strapped state. Some of the alleged insurance violations date back to 1986. Some drivers said they were being improperly accused of expired insurance on vehicles they've sold or on vehicles now registered in other states where they've moved. Ms. Holliday's class certification motion is pending before state District Judge Janice Clark. Judge Clark decided on May 8 that Ms. Holliday's suit, which the judge said needs some amending to add specificity, can proceed -- despite objections from the state's attorneys who argued the woman lost her right to sue because she did not respond to three letters sent to her by the state. One of her attorneys told Judge Clark she did not receive the first letter sent to her by the Office of Motor Vehicles. Ms. Holliday's lapse in auto insurance coverage occurred prior to June 30, 2014, and lasted between 30 and 90 days, according to her suit. At that time, state law provided for a reinstatement fee of $50 for a lapse in auto insurance coverage up to 30 days, $150 for a lapse between 30 and 90 days, and $250 for a lapse of 90 days or more. As of July 1, 2014, those fees increased to $125 for a lapse of coverage up to 30 days, $275 for a lapse between 31 and 90 days, and $525 for a lapse of 91 days or more. Ms. Holliday was expecting to have to pay $187.50, or $150 for a pre-July 2014 lapse of 30 to 90 days plus a 25 percent administrative fee, her suit says. But instead, she had to pay $656.25, or $525 plus a $131.25 administrative fee. Ms. Holliday claims the reinstatement fine she was forced to pay amounted to a $468.75 overpayment, which she describes in her suit as improper and illegal. Michael Adams, one of OMV's attorneys, argued on May 8 that Ms. Holliday's delinquent debt is final because she did not request an administrative hearing that was mentioned in the first letter sent to her. The woman failed to timely object to the fines, he said. "Whatever happened to the access to the court . . . for all persons," Judge Clark said during the hearing. "She lost the right to bring this matter forward," Mr. Adams replied. "She didn't do anything." Matthew Sherman, an attorney for the state Department of Revenue and the Office of Debt Recovery, pointed out that the first letter sent to Ms. Holliday said she could request an administrative hearing within 10 days of the date of the letter. Maria Stephenson, one of Ms. Holliday's attorneys, said the letters are not certified or sent by registered mail. "If that's not a violation of due process, I don't know what is," she argued. Mr. Adams said state law doesn't say the letters have to be sent via certified mail. "There were so many opportunities and ways for her to resolve this and she failed to do so," Mr. Adams told the judge. Ms. Stephenson said after the hearing that the state, through either negligence or technology, has overcharged many Louisiana motorists. "It could be a lot of money for a lot of people," she said. Attorneys for the defendants declined comment afterward. [GN] LTD FINANCIAL: Certification of Class Sought in "Machnik" Suit -------------------------------------------------------------- Audrey Machnik moves the Court to certify the class described in the complaint of the lawsuit styled AUDREY MACHNIK, Individually and on Behalf of All Others Similarly Situated v. LTD FINANCIAL SERVICES, LP, Case No. 2:17-cv-00566-NJ (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. Dicta in the Supreme Court's decision in Campbell-Ewald Co. v. Gomez, 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 individual claim with the court and having the court enter judgment in the plaintiff's favor prior to the filing of a class certification motion, the Plaintiff asserts, citing Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (2016). To avoid the risk of a defendant mooting a putative class representative's individual stake in the litigation, the Seventh Circuit instructed plaintiffs to file a certification motion with the complaint, along with a motion to stay briefing on the certification motion. Damasco v. Clearwire Corp., 662 F.3d 891, 896 (7th Cir. 2011), overruled on other grounds, Chapman v. First Index, Inc., 796 F.3d 783, 787 (7th Cir. 2015) ("The pendency of that motion [for class certification] protects a putative class from attempts to buy off the named plaintiffs."). The Plaintiff is obligated to move for class certification to protect the interests of the putative class, the Plaintiff contends. More than one defendant has already attempted the scheme contemplated in Campbell-Ewald. See Severns v. Eastern Account Systems of Connecticut, Inc., Case No. 15-cv-1168, 2016 U.S. Dist. LEXIS 23164 (E.D. Wis. Feb. 24, 2016). Judge Randa denied the defendant's request to deposit funds on grounds that a class certification motion was pending. As the Motion to certify a class 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 short 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 for the appointment of Ademi & O'Reilly, LLP, as class counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=tlS5QBFj 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 LUSH INTERNET: Hite Appeals D. New Jersey Ruling to Third Circuit ----------------------------------------------------------------- Plaintiff Norris Hite filed an appeal from a court ruling in the lawsuit titled Norris Hite v. Lush Internet Inc., Case No. 1-16- cv-01533, in the U.S. District Court for the District of New Jersey. The appellate case is captioned as Norris Hite v. Lush Internet Inc., Case No. 17-1907, in the United States Court of Appeals for the Third Circuit.[BN] Plaintiff-Appellant NORRIS HITE, Individually and on behalf of all others similarly situated, is represented by: Gerald H. Clark, Eq. CLARK LAW FIRM, PC 811 Sixteenth Avenue Belmar, NJ 07719 Telephone: (732) 443-0333 Facsimile: (732) 894-9647 E-mail: gclark@clarklawnj.com Defendant-Appellee LUSH INTERNET INC. is represented by: Geoffrey W. Castello, III, Esq. KELLEY DRYE & WARREN LLP One Jefferson Road, 2nd Floor Parsippany, NJ 07054 Telephone: (973) 503-5900 E-mail: gcastello@kelleydrye.com MADISON COUNTY, MS: Faces Class Action Over "Top-Down Program" -------------------------------------------------------------- Arielle Dreher, writing for Jackson Free Press, reports that ten black Madison County residents joined the ACLU of Mississippi on May 8 to announce a new federal class-action lawsuit against Madison County and Sheriff Randall Tucker. The sheriff's department exposed these and other African Americans to "unconstitutional racially discriminatory policing tactics," the 80-plus-page lawsuit alleges. Paloma Wu, the legal director of the ACLU of Mississippi, said the lawsuit is a result of a year-long investigation made possible by the help of dozens of Madison County residents who came forward to share their stories, as well as hundreds of pages of public records from the sheriff's department. The lawsuit says Madison County Sheriff's Department's policing program includes vehicular roadblocks, pedestrian checkpoints, warrantless searches of homes and "jump-out" patrols in predominantly black communities in the county. Ms. Wu dismissed the idea that the case at the department is due to a few "bad apples," and said the policies have been in place for decades. "When you read the complaint and you look at all of the stories . . . you'll get a feeling . . . that the bad-apple theory is not a theory -- it's a fantasy dreamed up by people who are afraid of the facts and afraid of change more than they love justice," Ms. Wu said. "We do challenge everyone in this community to open their minds to the stories and statistics and to be ready because change is coming." Jonathan Youngwood -- jyoungwood@stblaw.com -- an attorney with Simpson Thacher & Bartlett LLP, which is serving as co-counsel on the case, told reporters that data show that black people in Madison County are almost five times more likely to be arrested than their white counterparts in the county, despite African Americans making up only 38 percent of the total county population. "Almost 81 percent of roadblock arrests in Madison County between May and September of 2016 were of black individuals," the complaint says. Mr. Youngwood said the plaintiffs are seeking an injunction from the federal court to stop the sheriff's department from using roadblocks, pedestrian checkpoints and warrantless searches, as well as establish an independent civilian complaint review board and increase training and monitoring of officers. The suit is brought under 4th and 14th Amendment claims, Youngwood said. Quinnetta Manning, a Canton resident and one of the plaintiffs, shared part of her story with reporters on May 8. The lawsuit states that six white male officers "forcibly entered the family home" of Manning and her husband last summer, with no search warrant. The deputies "attempted to coerce Mr. Manning (Quinnetta's husband) to write a false witness statement against a neighbor's boyfriend," the complaint states. When he refused, "one of the deputies handcuffed him, choked him, and beat him in the back seat of an MCSD law enforcement vehicle." Mrs. Manning recounted those events to reporters this morning and said she is still afraid to this day that the sheriff's department will come into her home and threaten to arrest her or her husband. "I should not be treated differently just because I'm black or a black woman -- I deserve to be treated with respect," she told reporters this morning. Steven Smith, another plaintiff in the class-action suit, was arrested and at a pedestrian checkpoint outside his apartment complex, the complaint says. Mr. Smith was arrested and incarcerated for 29 days, the complaint says, after officers ran his ID and found that he owed the county overdue fines and court fees. "It was very difficult for my family to have me away and not being able to work," he said at the offices of the ACLU of Mississippi this morning. Gov. Phil Bryant vetoed legislation last month that would have prevented Mississippians from being thrown in jail just because they cannot pay fines and fees, among other criminal-justice reforms. Beyond the injunction, plaintiffs are asking the Madison County Sheriff's Department to update its policies, make data publicly available and award the Mannings compensatory damages as well as pay the plaintiffs' attorney and court fees. Several calls to Heath Hall, whom the secretary at the Madison County Sheriff's Department referred the Jackson Free Press to for comment, went unanswered this morning. Secretary of State records show that Hall is the president of a marketing group based in Madison, Strategic Marketing Group. [GN] MDL 2020: Aetna Still Defends Remaining Claims ---------------------------------------------- Aetna Inc. continues to defend the remaining claims in the Out-of- Network Benefit Proceedings, the Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 2, 2017, for the quarterly period ended March 31, 2017. The Company said, "We are named as a defendant in several purported class actions and individual lawsuits arising out of our practices related to the payment of claims for services rendered to our members by health care providers with whom we do not have a contract ("out-of-network providers"). Among other things, these lawsuits allege that we paid too little to our health plan members and/or providers for these services, among other reasons, because of our use of data provided by Ingenix, Inc., a subsidiary of one of our competitors ("Ingenix"). Other major health insurers are the subject of similar litigation or have settled similar litigation." "Various plaintiffs who are health care providers or medical associations seek to represent nationwide classes of out-of- network providers who provided services to our members during the period from 2001 to the present. Various plaintiffs who are members in our health plans seek to represent nationwide classes of our members who received services from out-of-network providers during the period from 2001 to the present. Taken together, these lawsuits allege that we violated state law, the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), the Racketeer Influenced and Corrupt Organizations Act ("RICO") and federal antitrust laws, either acting alone or in concert with our competitors. The purported classes seek reimbursement of all unpaid benefits, recalculation and repayment of deductible and coinsurance amounts, unspecified damages and treble damages, statutory penalties, injunctive and declaratory relief, plus interest, costs and attorneys' fees, and seek to disqualify us from acting as a fiduciary of any benefit plan that is subject to ERISA. Individual lawsuits that generally contain similar allegations and seek similar relief have been brought by health plan members and out-of-network providers. "The first class action case was commenced on July 30, 2007. The federal Judicial Panel on Multi-District Litigation (the "MDL Panel") has consolidated these class action cases in the U.S. District Court for the District of New Jersey (the "New Jersey District Court") under the caption In re: Aetna UCR Litigation, MDL No. 2020 ("MDL 2020"). In addition, the MDL Panel has transferred the individual lawsuits to MDL 2020. On May 9, 2011, the New Jersey District Court dismissed the physician plaintiffs from MDL 2020 without prejudice. The New Jersey District Court's action followed a ruling by the United States District Court for the Southern District of Florida (the "Florida District Court") that the physician plaintiffs were enjoined from participating in MDL 2020 due to a prior settlement and release. The United States Court of Appeals for the Eleventh Circuit has dismissed the physician plaintiffs' appeal of the Florida District Court's ruling. "On December 6, 2012, we entered into an agreement to settle MDL 2020. Under the terms of the proposed nationwide settlement, we would have been released from claims relating to our out-of- network reimbursement practices from the beginning of the applicable settlement class period through August 30, 2013. The settlement agreement did not contain an admission of wrongdoing. The medical associations were not parties to the settlement agreement. "Under the settlement agreement, we would have paid up to $120 million to fund claims submitted by health plan members and health care providers who were members of the settlement classes. These payments also would have funded the legal fees of plaintiffs' counsel and the costs of administering the settlement. In connection with the proposed settlement, the Company recorded an after-tax charge to net income attributable to Aetna of $78 million in the fourth quarter of 2012. "The settlement agreement provided us the right to terminate the agreement under certain conditions related to settlement class members who opted out of the settlement. Based on a report provided to the parties by the settlement administrator, the conditions permitting us to terminate the settlement agreement were satisfied. On March 13, 2014, we notified the New Jersey District Court and plaintiffs' counsel that we were terminating the settlement agreement. Various legal and factual developments since the date of the settlement agreement led us to believe terminating the settlement agreement was in our best interests. As a result of this termination, we released the reserve established in connection with the settlement agreement, net of amounts due to the settlement administrator, which reduced first quarter 2014 other general and administrative expenses by $103 million pretax. "On June 30, 2015, the New Jersey District Court granted in part our motion to dismiss the proceeding. The New Jersey District Court dismissed with prejudice the plaintiffs' RICO and federal antitrust claims; their ERISA claims that are based on our disclosures and our purported breach of fiduciary duties; and certain of their state law claims. The New Jersey District Court also dismissed with prejudice all claims asserted by several medical association plaintiffs. The plaintiffs' remaining claims are for ERISA benefits and breach of contract. We intend to defend ourselves vigorously against the plaintiffs' remaining claims." Aetna is one of the nation's leading diversified health care benefits companies, serving an estimated 44.9 million people. MASTERCARD INC: Accrued $705 Million Liability as Reserve --------------------------------------------------------- Mastercard Incorporated said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 2, 2017, for the quarterly period ended March 31, 2017, that as of March 31, 2017, Mastercard had accrued a liability of $705 million as a reserve for both the merchant class litigation and the filed and anticipated opt-out merchant cases. In June 2005, the first of a series of complaints were filed on behalf of merchants (the majority of the complaints were styled as class actions, although a few complaints were filed on behalf of individual merchant plaintiffs) against Mastercard International, Visa U.S.A., Inc., Visa International Service Association and a number of financial institutions. Taken together, the claims in the complaints were generally brought under both Sections 1 and 2 of the Sherman Act, which prohibit monopolization and attempts or conspiracies to monopolize a particular industry, and some of these complaints contain unfair competition law claims under state law. The complaints allege, among other things, that Mastercard, Visa, and certain financial institutions conspired to set the price of interchange fees, enacted point of sale acceptance rules (including the no surcharge rule) in violation of antitrust laws and engaged in unlawful tying and bundling of certain products and services. The cases were consolidated for pre-trial proceedings in the U.S. District Court for the Eastern District of New York in MDL No. 1720. The plaintiffs filed a consolidated class action complaint that seeks treble damages. In July 2006, the group of purported merchant class plaintiffs filed a supplemental complaint alleging that Mastercard's initial public offering of its Class A Common Stock in May 2006 (the "IPO") and certain purported agreements entered into between Mastercard and financial institutions in connection with the IPO: (1) violate U.S. antitrust laws and (2) constituted a fraudulent conveyance because the financial institutions allegedly attempted to release, without adequate consideration, Mastercard's right to assess them for Mastercard's litigation liabilities. The class plaintiffs sought treble damages and injunctive relief including, but not limited to, an order reversing and unwinding the IPO. In February 2011, Mastercard and Mastercard International entered into each of: (1) an omnibus judgment sharing and settlement sharing agreement with Visa Inc., Visa U.S.A. Inc. and Visa International Service Association and a number of financial institutions; and (2) a Mastercard settlement and judgment sharing agreement with a number of financial institutions. The agreements provide for the apportionment of certain costs and liabilities which Mastercard, the Visa parties and the financial institutions may incur, jointly and/or severally, in the event of an adverse judgment or settlement of one or all of the cases in the merchant litigations. Among a number of scenarios addressed by the agreements, in the event of a global settlement involving the Visa parties, the financial institutions and Mastercard, Mastercard would pay 12% of the monetary portion of the settlement. In the event of a settlement involving only Mastercard and the financial institutions with respect to their issuance of Mastercard cards, Mastercard would pay 36% of the monetary portion of such settlement. In October 2012, the parties entered into a definitive settlement agreement with respect to the merchant class litigation (including with respect to the claims related to the IPO) and the defendants separately entered into a settlement agreement with the individual merchant plaintiffs. The settlements included cash payments that were apportioned among the defendants pursuant to the omnibus judgment sharing and settlement sharing agreement described above. Mastercard also agreed to provide class members with a short-term reduction in default credit interchange rates and to modify certain of its business practices, including its "no surcharge" rule. The court granted final approval of the settlement in December 2013, and objectors to the settlement appealed that decision to the U.S. Court of Appeals for the Second Circuit. In June 2016, the court of appeals vacated the class action certification, reversed the settlement approval and sent the case back to the district court for further proceedings. The court of appeals' ruling was based primarily on whether the merchants were adequately represented by counsel in the settlement. Prior to the reversal of the settlement approval, merchants representing slightly more than 25% of the Mastercard and Visa purchase volume over the relevant period chose to opt out of the class settlement. Mastercard had anticipated that most of the larger merchants who opted out of the settlement would initiate separate actions seeking to recover damages, and over 30 opt-out complaints have been filed on behalf of numerous merchants in various jurisdictions. Mastercard has executed settlement agreements with a number of opt-out merchants. Mastercard believes these settlement agreements are not impacted by the ruling of the court of appeals. The defendants have consolidated all of these matters (except for two state court actions) in front of the same federal district court that approved the merchant class settlement. In July 2014, the district court denied the defendants' motion to dismiss the opt-out merchant complaints for failure to state a claim. Deposition discovery commenced in December 2016. As of March 31, 2017, Mastercard had accrued a liability of $705 million as a reserve for both the merchant class litigation and the filed and anticipated opt-out merchant cases. As of March 31, 2017 and December 31, 2016, Mastercard had $543 million in a qualified cash settlement fund related to the merchant class litigation and classified as restricted cash on its consolidated balance sheet. Mastercard believes the reserve for both the merchant class litigation and the filed and anticipated opt-out merchants represents its best estimate of its probable liabilities in these matters at March 31, 2017. The portion of the accrued liability relating to both the opt-out merchants and the merchant class litigation settlement does not represent an estimate of a loss, if any, if the matters were litigated to a final outcome. Mastercard cannot estimate the potential liability if that were to occur. MASTERCARD INC: Parties in Canadian Suit Negotiating Accord ----------------------------------------------------------- Mastercard Incorporated said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 2, 2017, for the quarterly period ended March 31, 2017, that the parties in the Canadian class action are negotiating a settlement agreement that, if finalized, will need to be approved in each applicable province. In December 2010, a proposed class action complaint was commenced against Mastercard in Quebec on behalf of Canadian merchants. The suit essentially repeated the allegations and arguments of a previously filed application by the Canadian Competition Bureau to the Canadian Competition Tribunal (dismissed in Mastercard's favor) concerning certain Mastercard rules related to point-of- sale acceptance, including the "honor all cards" and "no surcharge" rules. The Quebec suit sought compensatory and punitive damages in unspecified amounts, as well as injunctive relief. In the first half of 2011, additional purported class action lawsuits were commenced in British Columbia and Ontario against Mastercard, Visa and a number of large Canadian financial institutions. The British Columbia suit sought compensatory damages in unspecified amounts, and the Ontario suit sought compensatory damages of $5 billion on the basis of alleged conspiracy and various alleged breaches of the Canadian Competition Act. Additional purported class action complaints were commenced in Saskatchewan and Alberta with claims that largely mirror those in the other suits. In March 2017, Mastercard entered into a term sheet reflecting an agreement in principle to resolve all of the Canadian class action litigation. The parties are negotiating a settlement agreement that, if finalized, will need to be approved in each applicable province. During the first quarter of 2017, the Company recorded a provision for litigation of $15 million related to the proposed settlement. MASTERCARD INC: Still Defends ATM Surcharge Complaints ------------------------------------------------------ Mastercard Incorporated continues to defend against the ATM Non- Discrimination Rule Surcharge Complaints, Mastercard said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 2, 2017, for the quarterly period ended March 31, 2017. In October 2011, a trade association of independent Automated Teller Machine ("ATM") operators and 13 independent ATM operators filed a complaint styled as a class action lawsuit in the U.S. District Court for the District of Columbia against both Mastercard and Visa (the "ATM Operators Complaint"). Plaintiffs seek to represent a class of non-bank operators of ATM terminals that operate in the United States with the discretion to determine the price of the ATM access fee for the terminals they operate. Plaintiffs allege that Mastercard and Visa have violated Section 1 of the Sherman Act by imposing rules that require ATM operators to charge non-discriminatory ATM surcharges for transactions processed over Mastercard's and Visa's respective networks that are not greater than the surcharge for transactions over other networks accepted at the same ATM. Plaintiffs seek both injunctive and monetary relief equal to treble the damages they claim to have sustained as a result of the alleged violations and their costs of suit, including attorneys' fees. Plaintiffs have not quantified their damages although they allege that they expect damages to be in the tens of millions of dollars. Subsequently, multiple related complaints were filed in the U.S. District Court for the District of Columbia alleging both federal antitrust and multiple state unfair competition, consumer protection and common law claims against Mastercard and Visa on behalf of putative classes of users of ATM services (the "ATM Consumer Complaints"). The claims in these actions largely mirror the allegations made in the ATM Operators Complaint, although these complaints seek damages on behalf of consumers of ATM services who pay allegedly inflated ATM fees at both bank and non- bank ATM operators as a result of the defendants' ATM rules. Plaintiffs seek both injunctive and monetary relief equal to treble the damages they claim to have sustained as a result of the alleged violations and their costs of suit, including attorneys' fees. Plaintiffs have not quantified their damages although they allege that they expect damages to be in the tens of millions of dollars. In January 2012, the plaintiffs in the ATM Operators Complaint and the ATM Consumer Complaints filed amended class action complaints that largely mirror their prior complaints. In February 2013, the district court granted Mastercard's motion to dismiss the complaints for failure to state a claim. On appeal, the Court of Appeals reversed the district court's order in August 2015 and sent the case back for further proceedings. In March 2016, certain of the plaintiffs in the ATM Operators Complaint filed a motion seeking a preliminary injunction enjoining the enforcement of the nondiscrimination rules pending the outcome of the litigation. MASTERCARD INC: Late 2017 Trial in U.S. Liability Shift Suit ------------------------------------------------------------ Mastercard Incorporated said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 2, 2017, for the quarterly period ended March 31, 2017, that trial is scheduled for late 2017 in the U.S. Liability Shift Litigation. In March 2016, a proposed U.S. merchant class action complaint was filed in federal court in California alleging that Mastercard, Visa, American Express and Discover (the "Network Defendants"), EMVCo, and a number of issuing banks (the "Bank Defendants") engaged in a conspiracy to shift fraud liability for card present transactions from issuing banks to merchants not yet in compliance with the standards for EMV chip cards in the United States (the "EMV Liability Shift"), in violation of the Sherman Act and California law. Plaintiffs allege damages equal to the value of all chargebacks for which class members became liable as a result of the EMV Liability Shift on October 1, 2015. The plaintiffs seek treble damages, attorney's fees and costs and an injunction against future violations of governing law, and the defendants have filed a motion to dismiss. In September 2016, the court denied the Network Defendants' motion to dismiss the complaint, but granted such a motion for EMVCo and the Bank Defendants. The plaintiffs have filed a motion for class certification, and oral argument on that motion is scheduled for mid-May 2017. A trial is scheduled for late 2017. MICHIGAN: Sued Over Driver's License Suspensions Policy ------------------------------------------------------- David Wells, writing for Courthouse News, reports that Michigan's practice of suspending driver's licenses for unpaid court fees is unconstitutional and traps low-income residents into a cycle of poverty, citizens claim in a class action. According to the complaint filed on May 4 in Flint federal court, the state has collected over $40 million in "driver responsibility" fees in the last three years and has suspended over 100,000 licenses since 2010, in a practice the lawsuit calls an "unconstitutional wealth-based suspension scheme." Michigan law requires that its state department suspend the licenses of residents who have unpaid court fees. This practice unduly harms residents who simply cannot pay their court costs, as being unable to drive hampers their ability to earn a living and thus pay their fees, the lawsuit says. "Without driver's licenses, people already facing the harsh realities of owing court debt while living in poverty face additional hurdles of being unable to drive to and from work, get their children to daycare, keep medical appointments, and care for their family members," the complaint states. The class-action lawsuit lists Michigan Secretary of State Ruth Johnson as the lone defendant, and seeks to have the license suspending practice deemed unconditional. One of the named plaintiffs, 31-year-old Adrian Fowler, owes $2,121 to courts in Ferndale, Eastpointe and Oak Park. Ms. Fowler says her license was suspended in 2012 for unpaid Georgia traffic tickets that she had been unable to pay prior to moving to Michigan. The next year, Ms. Fowler was cited for driving on a suspended license after being pulled over by an officer while she was trying to rush her young daughter to the hospital during inclement weather, according to the complaint. The lawsuit claims that the officer was sympathetic to Ms. Fowler's plight and let her continue to the hospital despite her suspended license, but not before writing a $600 ticket. "When Ms. Fowler went to the Ferndale courthouse to tell them that she would not be able to pay the $600, she was told that if she did not return in three weeks with the full amount, a warrant would be issued for her arrest," the complaint states. The other named plaintiff, 25-year-old Kitia Harris, says she was charged with a $150 traffic ticket that she can't afford to pay on her disability income. After she did not pay the fee, Ms. Harris' license was suspended and she now owes the courts a total of $276, according to the complaint. Ms. Fowler and Ms. Harris seek to represent a class of Michigan residents whose driver's licenses are suspended, or will be suspended, based solely on their inability to pay court debts. They are represented by Phil Telfeyan and other attorneys with Equal Justice Under Law in Washington, D.C., and by John Philo with Maurice & Jane Sugar Law Center for Economic & Social Justice in Detroit. While not commenting directly on the pending litigation, Michigan Secretary of State spokesperson Fred Woodhams told Courthouse News that "the department does suspend a person's driver's license as required by state law after a court notifies it that a traffic ticket was not paid. Traffic tickets are paid to the local court district." Michigan is not the only state facing such a challenge. In Virginia, a similar lawsuit was filed last summer by the nonprofit Legal Aid Justice Center, and also claimed that drivers were unfairly losing their licenses due to unpaid court courts. The United States Department of Justice weighed in on the Virginia lawsuit in November, siding with the affected drivers. "Suspending the driver's licenses of those who fail to pay fines or fees without inquiring into whether that failure to pay was willful or instead the result of an inability to pay may result in penalizing indigent individuals solely because of their poverty, in violation of the due process and equal protection clauses of the Fourteenth Amendment," the DOJ wrote in a statement of interest in the case. However, despite the vote of confidence from the federal government, the Virginia case is mired in court proceedings after U.S. District Judge Norman Moon dismissed the case for lack of jurisdiction in March. According to the Richmond-Times Dispatch, the plaintiffs appealed Judge Moon's dismissal in April. [GN] MICROSOFT CORP: Antitrust Class Suit in British Columbia Ongoing ---------------------------------------------------------------- A six-month oral hearing in an antitrust class action proceeding in British Columbia against Microsoft Corporation is set to start in September 2017, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2017. Antitrust and unfair competition class action lawsuits were filed against the Company in British Columbia, Ontario, and Quebec, Canada. All three have been certified on behalf of Canadian indirect purchasers who acquired licenses for Microsoft operating system software and/or productivity application software between 1998 and 2010. The trial of the British Columbia action commenced in May 2016. The plaintiffs filed their case in chief in August 2016, setting out claims made, authorities, and evidence in support of their claims. A six-month oral hearing is scheduled to commence in September 2017, consisting of cross examination on witness affidavits. The Ontario and Quebec cases are inactive. Microsoft Corporation, a technology company, develops, licenses, and supports software products, services, and devices worldwide. The Company markets and distributes its products through original equipment manufacturers (OEM), distributors, and resellers, as well as through online and Microsoft retail stores. Microsoft Corporation was founded in 1975 and is headquartered in Redmond, Washington. MICROSOFT CORP: Canadian Cell Phone Class Action Still Dormant -------------------------------------------------------------- Microsoft Corporation disclosed in its Form 10-Q filed with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2017 that a Canadian cell phone class action has been dormant for more than two years. Nokia, along with other handset manufacturers and network operators, is a defendant in a 2013 class action lawsuit filed in the Supreme Court of British Columbia by a purported class of Canadians who have used cellular phones for at least 1,600 hours, including a subclass of users with brain tumors. Microsoft was served with the complaint in June 2014 and has been substituted for the Nokia defendants. Microsoft Corporation, a technology company, develops, licenses, and supports software products, services, and devices worldwide. The Company markets and distributes its products through original equipment manufacturers (OEM), distributors, and resellers, as well as through online and Microsoft retail stores. Microsoft Corporation was founded in 1975 and is headquartered in Redmond, Washington. MIDLAND FUNDING: Small Claims Court Case Waived Arbitration Right ---------------------------------------------------------------- Liz Kramer, Esq. -- liz.kramer@stinson.com -- of Stinson Leonard Street LLP, in an article for Lexology, wrote that it is not uncommon for lenders to exempt small claims actions from their arbitration provisions. The question confronted by the Court of Appeals of Maryland in a recent case was: when a lender opts for small claims court, does that waive any later right to enforce the arbitration clause? The court's answer was yes, if the claims are related. In Cain v. Midland Funding, LLC, __ A.3d__, 2017 WL 1101804 (Md. Mar. 24, 2017), the lender pursued its collection action against the credit card holder in small claims court in 2009. It obtained a default judgment for $4,520. In 2013, that same credit card holder filed a class action complaint against the lender, arguing the lender had been an unlicensed collection agency. The lender moved to compel arbitration. The trial court compelled arbitration, finding the lender had not waived its right to arbitrate by bringing the 2009 case, and the intermediate appellate court agreed. A five-member majority of Maryland's highest court applied a de novo standard of review and reversed on the issue of waiver (two judges dissented). It applied Maryland case law that holds participating in a judicial proceeding only constitutes a waiver of the right to arbitrate issues raised in that proceeding, but not "unrelated issues." Therefore, the court looked at whether the lender could have arbitrated its collection action, and if so, whether that was related to the licensing issue raised in 2013. The arbitration agreement at issue states that "claims filed in a small claims court are not subject to arbitration, so long as the matter remains in such court and advances only an individual. . . Claim." The court found that language, along with the broad language that "all Claims . . . are subject to arbitration," gave the lender the choice to litigate or arbitrate the collection issue. The court also found the 2009 and 2013 claims were sufficiently related to apply the waiver doctrine. "Put simply, if Midland had not pursued its 2009 collection action, Cain's current claims would not exist." The majority noted that 2016 cases from both Nevada and Utah had reached similar conclusions. Finally, the court refused to require a showing of prejudice: "Cain does not have to demonstrate that he will suffer prejudice if the arbitration clause is enforced." This issue is an important one for lending institutions. If the small claims court option is generally efficient, it may be worthwhile adding a clause to those arbitration provisions that pursuit of a claim in small claims court does not waive the right to raise arbitration as a defense in any later action. Maryland did not make my list of 5 states most hostile to arbitration last summer (and still wouldn't) . BUT, some of the states on that list have recently issued surprisingly pro arbitration decisions. Check these out: WEST VIRGINIA recently reversed a lower court's refusal to enforce arbitration. It found the employee had failed to show the arbitration provision was unconscionable. It wasn't all sunshine and arbitration butterflies, though. One justice wrote a concurring opinion asking Congress to take action. "We can only hope that . . . Congress will implement better safeguards to the FAA to ensure that the legal rights of unsophisticated employees are protected." Employee Resource Group, LLC v. Harless, 2017 WL 1371287 (W.Va. April 13, 2017). WEST VIRGINIA also enforced an arbitration clause waiving class actions in Citizens Telecommunications Co. v. Sheridan, 2017 WL 1457006 (W.Va April 20, 2017). In that case, the class action waiver had been added via notice to all consumers pursuant to a modification clause in the original terms of the agreement. Because the new terms and conditions were distributed with a paper billing statement and "accepted" via continued use of the internet service, the court found they were a valid unilateral contract, just like an employee handbook. Therefore, the court enforced individual arbitration of the claims. HAWAII confirmed an arbitration award in RT Import v. Torres, 2017 WL 1366999 (Ha. April 13, 2017), although reversed the trial court's additional award of additional costs above the award. The court did get a jab in at arbitration in a footnote, though. It noted that the arbitrator awarded damages for emotional distress to a corporation. After commenting that there is no legal authority allowing such damages, the opinion states: "parties who submit their claims to binding arbitration assume all the hazards of the arbitration process, including the risk that the arbitrator may make mistakes in the application of law and in their findings of fact." ALABAMA found the arbitration agreement between a family and a funeral home was not unconscionable in Newell v. SCI Alabama Funeral Services, LLC, 2017 WL 1034469 (March 17, 2017). [GN] NATIONAL BOARD: Hutton Appeals From Md. Ct. Ruling to 4th Cir. -------------------------------------------------------------- Plaintiffs Rhonda L. Hutton and Tawny P. Kaeochinda filed an appeal from a court ruling in their lawsuit styled Rhonda Hutton v. National Board of Examiners, Case No. 1:16-cv-03025-JKB, in the U.S. District Court for the District of Maryland at Baltimore. As previously reported in the Class Action Reporter on April 7, 2017, Judge James K. Bredar granted dismissal of the cases captioned, RHONDA L. HUTTON, O.D., et al. v. NAT'L BD. OF EXAM'RS IN OPTOMETRY, INC., and NICOLE MIZRAHI v. NAT'L BD. OF EXAM'RS IN OPTOMETRY, INC., Case Nos. JKB-16-3025, JKB-16-3146 (D. Md.). Two cases before the Court rest upon similar allegations by different Plaintiffs, and they are the subjects of nearly identical defense motions. Both cases seek to represent the same class of similarly situated individuals. The causes of action overlap between the cases, with some differences in state-law theories of recovery. Plaintiffs have asserted causes of action for negligence, breach of contract, and breach of implied contract. The appellate case is captioned as Rhonda Hutton v. National Board of Examiners, Case No. 17-1506, in the United States Court of Appeals for the Fourth Circuit.[BN] Plaintiffs-Appellants RHONDA L. HUTTON, O.D., and TAWNY P. KAEOCHINDA, O.D., on behalf of themselves and all others similarly situated, are represented by: Norman E. Siegel, Esq. Barrett Jay Vahle, Esq. STUEVE SIEGEL HANSON, LLP 460 Nichols Road Kansas City, MO 64112 Telephone: (816) 714-7100 Facsimile: (816) 714-7101 E-mail: siegel@stuevesiegel.com vahle@stuevesiegel.com - and - Hassan A. Zavareei, Esq. TYCKO & ZAVAREEI LLP 1828 L Street NW Washington, DC 20036 Telephone: (202) 973-0900 Facsimile: (202) 973-0950 E-mail: hzavareei@tzlegal.com Defendant-Appellee NATIONAL BOARD OF EXAMINERS IN OPTOMETRY, INC., is represented by: Cynthia Maskol, Esq. WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP 500 East Pratt Street Baltimore, MD 21202-0000 Telephone: (410) 962-5285 Facsimile: (410) 962-8758 E-mail: cynthia.maskol@wilsonelser.com NATIONAL BOARD: Mizrahi Appeals From D. Md. Ruling to 4th Cir. -------------------------------------------------------------- Plaintiff Nicole Mizrahi filed an appeal from a court ruling in the lawsuit entitled Nicole Mizrahi v. National Board of Examiners, Case No. 1:16-cv-03146-JKB, in the U.S. District Court for the District of Maryland at Baltimore. As previously reported in the Class Action Reporter on April 7, 2017, Judge James K. Bredar granted dismissal of the cases captioned, RHONDA L. HUTTON, O.D., et al. v. NAT'L BD. OF EXAM'RS IN OPTOMETRY, INC., and NICOLE MIZRAHI v. NAT'L BD. OF EXAM'RS IN OPTOMETRY, INC., Case Nos. JKB-16-3025, JKB-16-3146 (D. Md.). Two cases before the Court rest upon similar allegations by different Plaintiffs, and they are the subjects of nearly identical defense motions. Both cases seek to represent the same class of similarly situated individuals. The causes of action overlap between the cases, with some differences in state-law theories of recovery. Plaintiffs have asserted causes of action for negligence, breach of contract, and breach of implied contract. The appellate case is captioned as Nicole Mizrahi v. National Board of Examiners, Case No. 17-1508, in the United States Court of Appeals for the Fourth Circuit.[BN] Plaintiff-Appellant NICOLE MIZRAHI, individually and on behalf of all others similarly situated, is represented by: Donald James Enright, Esq. LEVI & KORSINSKY LLP 1101 30th Street, NW Washington, DC 20007 Telephone: (202) 524-4290 E-mail: denright@zlk.com - and - Michael Liskow, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP 270 Madison Avenue New York, NY 10016 Telephone: (212) 545-4600 Facsimile: (212) 545-4677 E-mail: liskow@whafh.com - and - Carl Malmstrom, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP One South Dearborn Street Chicago, IL 60603 Telephone: (312) 984-0000 E-mail: malmstrom@whafh.com Defendant-Appellee NATIONAL BOARD OF EXAMINERS IN OPTOMETRY, INC., is represented by: Cynthia Maskol, Esq. WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP 500 East Pratt Street Baltimore, MD 21202-0000 Telephone: (410) 962-5285 Facsimile: (410) 962-8758 E-mail: cynthia.maskol@wilsonelser.com NATURAL HEALTH TRENDS: Consolidated Securities Action Underway -------------------------------------------------------------- Natural Health Trends Corp. disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2017 that it has filed an answer on February 17, 2017, to a consolidated securities class action complaint. In January 2016, two putative securities class action complaints were filed against the Company and its top executives. 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 the Company's 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 the Company made materially false and misleading statements regarding the legality of its 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. The Company filed a motion to dismiss the consolidated complaint on June 15, 2016 and a reply in support of its motion to dismiss on August 22, 2016. On December 5, 2016, the Court denied the Company's motion to dismiss. Natural Health Trends stated, "The Company believes that these claims are without merit and intends to vigorously defend against them." Natural Health Trends Corp., a direct-selling and e-commerce company, provides personal care, wellness, and lifestyle products under the NHT Global brand in North America, Greater China, South Korea, Singapore, Malaysia, Japan, Europe, Russia, and Kazakhstan. The Company sells its products directly to consumers through an e- commerce retail platform. Natural Health Trends Corp. was founded in 1988 and is headquartered in Rolling Hills Estates, California. NAVIENT CORP: Student Loan Borrower Class Action Settled in 2016 ---------------------------------------------------------------- Navient Corporation disclosed in its Form 10-Q filed with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2017 that it has agreed to a settlement in principle in the fourth quarter of 2016 that would resolve a class action filed by a student loan provider against the Company. On March 18, 2011, an education loan borrower filed a putative class action complaint against an old SLM Corporation in the U.S. District Court for the Northern District of California. The complaint was captioned Tina M. Ubaldi v. SLM Corporation et al. The plaintiff brought the complaint on behalf of a putative class consisting of other similarly situated California borrowers. The complaint alleged, among other things, that Old SLM's practice of charging late fees that were proportional to the amount of missed payments constituted liquidated damages in violation of California law and that Old SLM engaged in unfair business practices by charging daily interest on private educational loans. Plaintiffs subsequently amended their complaint to include usury claims under California state law and to seek restitution of late charges and interest paid by members of the putative class, injunctive relief, cancellation of all future interest payments, treble damages as permitted by law, as well as costs and attorneys' fees, among other relief. In the fourth quarter of 2016, the parties reached a settlement in principle that would resolve the Ubaldi matter, as well as the related lawsuit of Marlene Blyden v. Navient Corporation, et al. The Company states: "While we cannot provide any assurances that we will be able to finalize the proposed settlement on terms that are acceptable to the Company or if the Court will ultimately approve of the proposed settlement, we do not believe that the financial impact of the final settlement, if any, will be material." The Company agreed to settle these matters to avoid the burden, expense, risk, and uncertainty of continued litigation. A reserve was established for this matter as of December 31, 2016. Navient Corporation provides asset management and business processing services to education, health care, and government clients at the federal, state, and local levels in the United States. The Company operates in three segments: Federal Family Education Loan Program (FFELP) Loans, Private Education Loans, and Business Services. Navient Corporation is headquartered in Wilmington, Delaware. NAVIENT CORP: Consolidated Securities Class Lawsuit Underway ------------------------------------------------------------ Navient Corporation remains a defendant in a consolidated securities class action lawsuit filed on behalf of certain investors in Navient stock or Navient unsecured debt, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2017. During the first quarter of 2016, the Company, certain of its officers and directors, and the underwriters of certain Navient securities offerings were sued in three putative securities class action lawsuits filed in the U.S. District Court for the District of Delaware. These three cases were consolidated by the District Court, with Lord Abbett Funds appointed as Lead Plaintiff. The caption of the consolidated case is Lord Abbett Affiliated Fund, Inc., et al. v. Navient Corporation, et al. The plaintiffs filed their amended and consolidated complaint in September 2016. The Navient defendants intend to vigorously defend against the allegations in this lawsuit, and filed a Motion to Dismiss the Consolidated Amended Class Action Complaint in November 2016. Plaintiffs filed an Opposition in December 2016. The Company said: "At this stage in the proceedings, we are unable to anticipate the timing of resolution or the ultimate impact, if any, that the legal proceedings may have on the consolidated financial position, liquidity, results of operations or cash-flows of Navient and its affiliates. As a result, it is not possible at this time to estimate a range of potential exposure, if any, for amounts that may be payable in connection with these matters and reserves have not been established. It is possible that an adverse ruling or rulings may have a material adverse impact on the Company." Navient Corporation provides asset management and business processing services to education, health care, and government clients at the federal, state, and local levels in the United States. The Company operates in three segments: Federal Family Education Loan Program (FFELP) Loans, Private Education Loans, and Business Services. Navient Corporation is headquartered in Wilmington, Delaware. NAVIENT CORP: TCPA Class Suit Settlement Hearing Set for July ------------------------------------------------------------- Navient Corporation said in its Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2017 that court hearing on the approval of an agreement to settle a class action regarding Telephone Consumer Protection Act ("TCPA") violations is scheduled for July 2017. The Company has been named as defendant in a number of putative class action cases alleging violations of various state and federal consumer protection laws. One of these putative class action suits is Randy Johnson v. Navient Solutions, Inc. ("NSI"). On May 4, 2015, Randy Johnson filed a putative class action in the United States District Court for the Southern District of Indiana alleging violations of the Telephone Consumer Protection Act ("TCPA"). During the fourth quarter of 2016, the parties entered into a settlement agreement and, on December 23, 2016, filed a Motion to Approve the Class Action Settlement with the Court. The Court preliminarily approved the settlement on January 26, 2017. NSI denied all claims asserted, but agreed to settle the case to avoid the burden, expense, risk and uncertainty of continued litigation. A reserve was established for this matter as of December 31, 2016. The proposed settlement is subject to Court approval with a hearing currently scheduled for July 2017. Navient Corporation provides asset management and business processing services to education, health care, and government clients at the federal, state, and local levels in the United States. The Company operates in three segments: Federal Family Education Loan Program (FFELP) Loans, Private Education Loans, and Business Services. Navient Corporation is headquartered in Wilmington, Delaware. NOVOCURE LTD: Consolidated Securities Class Action Suit Underway ---------------------------------------------------------------- NovoCure Limited is facing a consolidated class action lawsuit on alleged violation of the federal securities laws, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2017. The plaintiffs will be filing a consolidated complaint on May 31, 2017. In January 2017, two putative class action lawsuits were filed against the Company, its directors and certain of its officers, as well as the underwriters in the Company's October 2015 initial public offering. The complaints, which purport to be brought on behalf of a class of persons and/or entities who purchased or otherwise acquired ordinary shares of the Company pursuant and/or traceable to the registration statement and prospectus issued in connection with the Company's initial public offering, allege material misstatements and/or omissions in the Company's initial public offering materials in alleged violation of the federal securities laws and seek compensatory damages, among other remedies. The two actions have been consolidated. NovoCure stated, "The Company believes that the actions are without merit and plans to defend the lawsuits vigorously. The Company has not accrued any amounts in respect of these lawsuits, as a liability is not probable and the amount of any potential liability cannot be reasonably estimated." NovoCure Limited engages in the development, manufacture, and commercialization of tumor treating fields (TTFields) for the treatment of solid tumors. The Company markets its proprietary therapy, TTFields delivery system under the Optune name for use as a monotherapy treatment for adult patients with glioblastoma brain cancer. It is also involved in conducting clinical trials for the use of TTFields in brain metastases, non-small cell lung cancer, pancreatic cancer, ovarian cancer, and mesothelioma. The company markets its products in the United States, Germany, Switzerland, Japan, and other countries. NovoCure Limited was founded in 2000 and is based in Saint Helier, the Channel Islands. NRG ENERGY: Plaintiffs Appeal Denial of Class Certification ----------------------------------------------------------- NRG Energy, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 2, 2017, for the quarterly period ended March 31, 2017, that plaintiffs in the Natural Gas Litigation have petitioned the Ninth Circuit for interlocutory review of the order denying class certification. GenOn is party to several lawsuits, certain of which are class action lawsuits, in state and federal courts in Kansas, Missouri, Nevada and Wisconsin. These lawsuits were filed in the aftermath of the California energy crisis in 2000 and 2001 and the resulting FERC investigations and relate to alleged conduct to increase natural gas prices in violation of state antitrust law and similar laws. The lawsuits seek treble or punitive damages, restitution and/or expenses. The lawsuits also name as parties a number of energy companies unaffiliated with NRG. In July 2011, the U.S. District Court for the District of Nevada, which was handling four of the five cases, granted the defendants' motion for summary judgment and dismissed all claims against GenOn in those cases. The plaintiffs appealed to the U.S. Court of Appeals for the Ninth Circuit, or the Ninth Circuit, which reversed the decision of the District Court. GenOn along with the other defendants in the lawsuit filed a petition for a writ of certiorari to the U.S. Supreme Court challenging the Ninth Circuit's decision and the U.S. Supreme Court granted the petition. On April 21, 2015, the U.S. Supreme Court affirmed the Ninth Circuit's holding that plaintiffs' state antitrust law claims are not field-preempted by the federal Natural Gas Act and the Supremacy Clause of the U.S. Constitution. The U.S. Supreme Court left open whether the claims were preempted on the basis of conflict preemption. The U.S. Supreme Court directed that the case be remanded to the U.S. District Court for the District of Nevada for further proceedings. On March 7, 2016, class plaintiffs filed their motions for class certification. Defendants filed their briefs in opposition to class plaintiffs' motions for class certification on June 24, 2016. On March 30, 2017, the court denied the plaintiffs' motions for class certification. On April 13, 2017, the plaintiffs petitioned the Ninth Circuit for interlocutory review of the court's order denying class certification. NRG Energy, Inc., is an integrated power company. NRG ENERGY: Class Certification Hearings on June 19 and Aug. 21 --------------------------------------------------------------- NRG Energy, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 2, 2017, for the quarterly period ended March 31, 2017, that Class certification hearings are scheduled on August 21, 2017 and June 19, 2017 in the Telephone Consumer Protection Act class action lawsuits in New Jersey and California cases respectively. Three purported class action lawsuits have been filed against NRG Residential Solar Solutions, LLC -- one in California and two in New Jersey. The plaintiffs generally allege misrepresentation by the call agents and violations of the TCPA, claiming that the defendants engaged in a telemarketing campaign placing unsolicited calls to individuals on the "Do Not Call List." The plaintiffs seek statutory damages of up to $1,500 per plaintiff, actual damages and equitable relief. On July 8, 2016, NRG filed a Rule 11 Motion seeking dismissal of NRG from the California case. The Rule 11 Motion was denied on August 16, 2016. Class certification hearings are scheduled on August 21, 2017 and June 19, 2017 in the New Jersey and California cases respectively. NRG Energy, Inc., is an integrated power company. NRG ENERGY: Opposition to Demurrers Due June 15 in "Braun" Suit --------------------------------------------------------------- NRG Energy, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 2, 2017, for the quarterly period ended March 31, 2017, that in the case, Braun v. NRG Yield, Inc., plaintiffs' opposition to Defendants' demurrers and motion challenging jurisdiction is due on June 15, 2017. On April 19, 2016, plaintiffs filed a putative class action lawsuit against NRG Yield, Inc., the current and former members of its board of directors individually, and other parties in California Superior Court in Kern County, CA. Plaintiffs allege various violations of the Securities Act due to the defendants' alleged failure to disclose material facts related to low wind production prior to the NRG Yield, Inc.'s June 22, 2015 Class C common stock offering. Plaintiffs seek compensatory damages, rescission, attorney's fees and costs. On August 3, 2016, the court approved a stipulation entered into by the parties. The stipulation provided that the plaintiffs would file an amended complaint by August 19, 2016, which they did on August 18, 2016. The Defendants filed demurrers and a motion challenging jurisdiction on October 18, 2016. On February 24, 2017, the court approved the parties' stipulation which provides the plaintiffs' opposition is due on June 15, 2017 and defendants' reply is due on August 14, 2017. NRG Energy, Inc., is an integrated power company. NRG ENERGY: Oral Argument Set for June 20 in "Ahmed" Suit --------------------------------------------------------- NRG Energy, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 2, 2017, for the quarterly period ended March 31, 2017, that oral argument is scheduled for June 20, 2017, in the case, Ahmed v. NRG Energy, Inc. and the NRG Yield Board of Directors. On September 15, 2016, plaintiffs filed a putative class action lawsuit against NRG Energy, Inc., the directors of NRG Yield, Inc., and other parties in the Delaware Chancery Court. The complaint alleges that the defendants breached their respective fiduciary duties with regard to the recapitalization of NRG Yield, Inc. common stock in 2015. The plaintiffs generally seek economic damages, attorney's fees and injunctive relief. The defendants filed a motion to dismiss the lawsuit on December 21, 2016. Plaintiffs filed their objection to the motion to dismiss on February 15, 2017. The Defendants' reply was filed on March 24, 2017. Oral argument is scheduled for June 20, 2017. NRG Energy, Inc., is an integrated power company. NRG ENERGY: Unit Defending Against "Griffoul" Suit -------------------------------------------------- NRG Energy, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 2, 2017, for the quarterly period ended March 31, 2017, that the Company is defending against the case, Griffoul v. NRG Residential Solar Solutions. On February 28, 2017, plaintiffs, consisting of New Jersey residential solar customers, filed a purported class action lawsuit in New Jersey state court. Plaintiffs allege violations of the New Jersey Consumer Fraud Action and Truth-in-Consumer Contracts, Warranty and Notice Act with regard to certain provisions of their residential solar contracts. The plaintiffs seek damages and injunctive relief as to the proper allocation of the solar renewable energy credits. NRG Energy, Inc., is an integrated power company. NRG ENERGY: Defending Against "Rice" Suit in W.D. Pa. ----------------------------------------------------- NRG Energy, Inc. is defending against the case, Rice v. NRG, the Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 2, 2017, for the quarterly period ended March 31, 2017. On April 14, 2017, plaintiffs filed a purported class action lawsuit in the U.S. District Court for the Western District of Pennsylvania against NRG, First Energy Corporation and Matt Canastrale Contracting, Inc. Plaintiffs generally claim personal injury, trespass, nuisance and property damage related to the disposal of coal ash from the Elrama Power Plant and First Energy's Mitchell and Hatfield Power Plants. Plaintiffs generally seek monetary damages, medical monitoring and remediation of their property. NRG Energy, Inc., is an integrated power company. OASIS LEGAL: "Davis" Usury Case Removed to S.D. Ga. --------------------------------------------------- The case captioned Lizzie Davis, Pamela Davis, Dennis Green, Johnny Moody, John Suber, And Shirley Williams, individually and on behalf of all others similarly situated, Plaintiffs, v. Oasis Legal Finance Operating Company, LLC; Oasis Legal Finance, LLC; Oasis Legal Finance Holding Company, LLC; and THL Credit, Inc., Defendants, Case No. 2017-CG-0061, (Ga. Sup., February 2, 2017), was removed to the United States District Court for the Southern District of Georgia on April 28, 2017, and assigned Case No. 3:17- cv-00022. Plaintiffs entered into loan agreements with Oasis. They claim that said agreements are void because they are deemed usurious under Georgia Law. [BN] Plaintiff is represented by: Robert Bartley Turner, Esq. SAVAGE, TURNER, PINCKNEY & SAVAGE P.O. Box 10600 102 East Liberty Street, 8th Floor Savannah, GA 31401 Tel:(912) 231-1140 Toll Free: (800) 626-1975 Fax: (912) 232-4212 Email: bturner@savagelawfirm.net - and - Jeremy S. McKenzie, Esq. C. Dorian Britt. Esq. KARSMAN, MCKENZIE & HART Tel: (912) 335-4977 (912) 289-0166 21 West Park Avenue Savannah, GA 31401 Email: jeremy@kmtrial.com dorian@kmtrial.com Oasis Legal Finance Operating Company, LLC, Oasis Legal Finance, LLC, and Oasis Legal Finance Holding Company, LLC represented by: Abby Vineyard, Esq. BARNES & THORNBURG LLP 3475 Piedmont Road, N.E., Suite 1700 Atlanta, GA 30305 Telephone: (404) 264-4085 Facsimile: (404) 265-4033 E-mail: abby.vineyard@btlaw.com - and - William M. McErlean, Esq. Christine Skoczylas, Esq. BARNES & THORNBURG LLP One North Wacker Drive, Suite 4400 Chicago, IL 60606 Telephone: (312) 357-1313 Facsimile: (312) 759-5646 E-mail: william.mcerlean@btlaw.com christine.skoczylas@btlaw.com THL Credit, Inc. is represented by: Timothy Mungovan, Esq. PROSKAUER ROSE LLP One International Place Boston, MA 02110 Tel: (617) 526-9412 Fax: (617) 526-9899 Email: tmungovan@proskauer.com OHIO, USA: Palladeno's Certification Bid Denied; May Amend Suit --------------------------------------------------------------- The Hon. Michael H. Watson entered an opinion and order adopting and affirming Magistrate Judge Jolson's report and recommendation in the lawsuit entitled Ted Palladeno v. Gary C. Mohr, et al., Case No. 2:16-cv-01126-MHW-KAJ (S.D. Ohio). Gary C. Mohr is director of the Ohio Department of Rehabilitation and Correction. Ted Palladeno brings the prisoner civil rights case pro se. He moves the Court to certify the case as a class action, and for preliminary injunction and prisoner release orders. The Complaint deplores numerous conditions in various protective control units in various institutions. The Complaint asks the Court to enjoin certain practices with respect to those protective control units, to require an overhaul of the prison grievance procedure, and to overhaul the ODRC parole procedures. Upon initial screen, Magistrate Judge Jolson issued a report and recommendation ("R&R") recommending the Court dismiss all claims brought on behalf of all putative plaintiffs other than the Plaintiff, deny the Plaintiff's motion to certify, and deny the Plaintiff's motion for preliminary injunction and prisoner relief orders. The R&R concluded that the Plaintiff cannot represent, pro se, other prisoners in federal court. The R&R also found that the Complaint, as filed, was pervaded by class allegations to the point that it was impossible to decipher the Plaintiff's individual claims. Mr. Palladeno objects to the R&R's recommendation that the Court deny his motion to certify a class, dismiss all class allegations, and deny his motion for a preliminary injunction and for prisoner release orders. He also objects to Magistrate Judge Jolson's denial of his motion to appoint class counsel. Several putative class members have written the Court in what Plaintiff calls "supplemental objections" to the R&R. The Plaintiff moves the Court to file these letters under seal for the protection of the putative class members. Judge Watson also denied the Plaintiff's motion to seal because as non-parties to the case, the putative class members had no right to object to the R&R. Judge Watson, however, allows the Plaintiff to file an amended complaint within 30 days. A copy of the Opinion and Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=9djpy0hl PARKLANCE FINANCIAL: Ontario Court Approves Settlement Deal ----------------------------------------------------------- The Hon. Justice E. Belobaba of the Ontario Superior Court of Justice has approved the settlement agreement dated March 17, 2017, entered into between Michael Cannon and the defendants Parklane Financial Group Limited, Trafalgar Associates Limited, Trafalgar Trading Limited, and Appleby Services Bermuda Ltd., as trustee for the Bermuda Longtail Trust nka Estera Services (Bermuda) Limited as trustee for the Bermuda Longtrail Trust. All claims, counterclaims, cross-claims and Third Party Claims have been dismissed. The settlement provides for the payment of $17.5 million. After payment of legal fees, the class proceedings Fund levy and administrative costs, the balance will be distributed to all class members who submit a valid claim form by July 31, 2017, which is the claim deadline. claims submitted after that date will not be accepted. A notice respecting the settlement approval, and explaining how to make a claim will be sent to the last known addresses for all class members. Prepopulated claim forms will be accessible by internet using a unique identifier which the claims administrator will include with the notice. Blank claim forms will be posted on the administrator's website at parklanesettlement.ca. Questions about how to make a claim or the claims process should be directed to the claims administrator at parklane@nptricepoint.com or 1-888-663-7194. Details of the settlement including a long form notice settlement, the settlement agreement, and court order approving the settlement can be accessed on the websites of class counsel at http://www.parklaneclassaction.comor http://www.thetorontolawyers.ca/class_actions.htm. PAYPAL HOLDINGS: Still Defends Putative Securities Class Action --------------------------------------------------------------- PayPal Holdings, Inc. continues to defend itself in a putative securities class action regarding alleged deception or unfair practices, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2017. On December 28, 2016, the putative securities class action captioned Cho v. PayPal Holdings, Inc., et al., Case No. 3:16-cv- 07371 (the "Securities Case"), was filed in the U.S. District Court for the Northern District of California (the "Court"). The Securities Case asserts claims relating to the Company's disclosure in its Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2016, that on March 28, 2016, the Company received a Civil Investigative Demand from the FTC as part of its investigation to determine whether it, through its Venmo service, have been or are engaged in deceptive or unfair practices in violation of the Federal Trade Commission Act. The Securities Case purports to be brought on behalf of purchasers of eBay's stock on or after December 19, 2013 who subsequently received the Company's stock pursuant to eBay's spin-off of the Company, effective as of July 17, 2015, and/or purchasers of the Company's stock between July 20, 2015 and April 28, 2016, and asserts claims for violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") against the Company, its Chief Executive Officer, Chief Financial Officer, and former interim Chief Financial Officer, and eBay and certain of its former officers, including the Chairman of the Company's Board of Directors. The Securities Case alleges that defendants made materially false and misleading statements or omissions regarding the Company's compliance with applicable laws and regulations, including the failure to disclose that the Company was purportedly engaging in unfair trade practices through its Venmo service and that as a result of alleged false and misleading statements or omissions, the Company's stock traded at artificially inflated prices. The Securities Case seeks unspecified compensatory damages on behalf of the putative class members. On March 23, 2017, the Court appointed a lead plaintiff and lead counsel to represent the putative class. Pursuant to the Court's scheduling order, lead plaintiff was given until May 12, 2017 to file an amended complaint. The Amended Complaint against Patrick L.A. Dupuis, PayPal Holdings, Inc., John D. Rainey, Daniel H. Schulman was filed on May 11. The Company stated: "We believe the claims and allegations in the Securities Case are without merit and intend to defend the action vigorously." PayPal Holdings, Inc. operates as a technology platform company that enables digital and mobile payments on behalf of consumers and merchants worldwide. It enables businesses of various sizes to accept payments from merchant Websites, mobile devices, and applications, as well as at offline retail locations through a range of payment solutions, including PayPal, PayPal Credit, Braintree, Venmo, Xoom, and Paydiant products. The Company's platform allows consumers to shop by sending payments, withdraw funds to their bank accounts, and hold balances in their PayPal accounts in various currencies. PayPal Holdings, Inc. was founded in 1998 and is headquartered in San Jose, California. PENNSYLVANIA, USA: Long Appeals Decision in Class Suit vs. SEPTA ---------------------------------------------------------------- Plaintiffs Frank Long, Joseph Shipley and Michael White filed an appeal from a court ruling in their lawsuit entitled Frank Long, et al. v. SEPTA, Case No. 2-16-cv-01991, in the U.S. District Court for the Eastern District of Pennsylvania. As previously reported in the Class Action Reporter, the lawsuit alleges that the Southeastern Pennsylvania Transportation Authority (SEPTA) "willfully" violated the federal Fair Credit Reporting Act and state laws when conducting criminal background checks on job applicants. The complaint alleges that SEPTA violated the federal FCRA during procurement of background checks for employment purposes by failing to provide job applicants with a required "clear and conspicuous" or "stand alone" written disclosure that SEPTA may obtain background checks to ensure accuracy and prevent job applicants from being distracted by unrelated information. The appellate case is captioned as Frank Long, et al. v. SEPTA, Case No. 17-1889, in the United States Court of Appeals for the Third Circuit.[BN] Plaintiffs-Appellants FRANK LONG, JOSEPH SHIPLEY and MICHAEL WHITE, Individually and on Behalf of All Others Similarly Situated, are represented by: Cheryl-Lyn D. Bentley, Esq. Adam T. Klein, Esq. Christopher M. McNerney, Esq. Ossai Miazad, Esq. Lewis M. Steel, Esq. OUTTEN & GOLDEN LLP 685 Third Avenue, 25th Floor New York, NY 10017 Telephone: (212) 245-1000 E-mail: cbentley@outtengolden.com atk@outtengolden.com cmcnerney@outtengolden.com om@outtengolden.com lms@outtengolden.com Defendant-Appellee SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY is represented by: Michael A. Cognetti, Esq. Candidus K. Dougherty, Esq. Jeffrey B. McCarron, Esq. SWARTZ CAMPBELL LLC 50 South 16th Street Two Liberty Place, 28th Floor Philadelphia, PA 19102 Telephone: (215) 564-5190 Facsimile: (215) 299-4301 E-mail: mcognetti@swartzcampbell.com cdougherty@swartzcampbell.com jmccarron@swartzcampbell.com - and - Elizabeth A. Malloy, Esq. Samantha L. Southall, Esq. BUCHANAN INGERSOLL & ROONEY PC 50 South 16th Street Two Liberty Place, Suite 3200 Philadelphia, PA 19102 Telephone: (215) 665-8700 Facsimile: (215) 665-8760 E-mail: elizabeth.malloy@bipc.com samantha.southall@bipc.com PEPPERIDGE FARM: Seeks 9th Cir. Review of Order in "Alfred" Suit ---------------------------------------------------------------- Defendant Pepperidge Farm Inc. filed an appeal from a court ruling in the lawsuit entitled Raymond Alfred, et al. v. Pepperidge Farm Inc., Case No. 2:14-cv-07086-JAK-SK, in the U.S. District Court for the Central District of California, Los Angeles. The appellate case is captioned as Raymond Alfred, et al. v. Pepperidge Farm Inc., Case No. 17-80074, in the United States Court of Appeals for the Ninth Circuit.[BN] Plaintiffs-Respondents RAYMOND ALFRED and MARVIN BARRISH, individually and on behalf of all others similarly situated, are represented by: Valerie Brender, Esq. Peter Rukin, Esq. RUKIN HYLAND DORIA & TINDALL LLP 100 Pine Street San Francisco, CA 94111 Telephone: (415) 421-1800 Facsimile: (415) 421-1700 E-mail: vbrender@rhdtlaw.com peterrukin@rhdtlaw.com - and - Wilmer J. Harris, Esq. Schonbrun DeSimone Seplow Harris Hoffman & Harrison, LLP 715 Fremont Avenue, Suite A South Pasadena, CA 91030 Telephone: (626) 441-4129 Facsimile: (626) 283-5770 E-mail: wharris@sdshhlaw.com - and - Thomas V. Urmy, Esq. SHAPIRO, GRACE, HABER & URMY 75 State Street Boston, MA 2109 Telephone: (617) 439-3939 Facsimile: (617) 439-0134 E-mail: turmy@shulaw.com Defendant-Petitioner PEPPERIDGE FARM INC. is represented by: Galen Bascom, Esq. Paul D. Clement, Esq. KIRKLAND & ELLIS LLP 655 Fifteenth Street, N.W. Washington, DC 20005 Telephone: (202) 879-5000 Facsimile: (202) 879-5200 E-mail: galen.bascom@kirkland.com paul.clement@kirkland.com - and - Paul C. Evans, Esq. MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103-2921 Telephone: (215) 963-5431 Facsimile: (215) 963-5001 E-mail: pevans@morganlewis.com - and - Carrie A. Gonell, Esq. MORGAN, LEWIS & BOCKIUS LLP 600 Anton Boulevard, Suite 1800 Costa Mesa, CA 92626 Telephone: (714) 830-0600 Facsimile: (212) 752-5378 E-mail: carrie.gonell@morganlewis.com - and - John David Hayashi, Esq. MORGAN, LEWIS & BOCKIUS LLP 5 Park Plaza Irvine, CA 92614 Telephone: (949) 399-7124 E-mail: john.hayashi@morganlewis.com - and - Allyson Newton Ho, Esq. MORGAN LEWIS & BOCKIUS LLP 1717 Main Street Dallas, TX 75201 Telephone: (214) 466-4180 Facsimile: (214) 466-4001 E-mail: allyson.ho@morganlewis.com - and - Judd E. Stone, II, Esq. MORGAN, LEWIS & BOCKIUS LLP 2020 K Street, N.W. Washington, DC 20006 Telephone: (202) 739-5531 Facsimile: (202) 739-3001 E-mail: judd.stone@morganlewis.com PESEK INC: Hagaman Moves for Certification of Servers Class ----------------------------------------------------------- The Plaintiff in the lawsuit titled SCOTT HAGAMAN, individually and on behalf of those similarly situated v. PESEK, INC., NICKOLIVIA, LLC and GEORGE PESEK, Case No. 3:17-cv-00289-JD-MGG (N.D. Ind.), moves for conditional certification and for notice to potential plaintiffs. In his complaint, Mr. Hagaman seeks payment of alleged unpaid minimum wages owed to him and others similarly situated due to violations of the Fair Labor Standards Act. He seeks conditional certification of his collective action and authorization to send initial and subsequent Court-supervised Notices to all of the Defendants' current and former servers (or their functional equivalents) who worked for the Defendants at Corndance Tavern and/or Evil Czech Brewery during the three-year time period prior to the date the Court approves the Motion. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=KDXRL7cC The Plaintiff is represented by: Robert J. Hunt, Esq. THE LAW OFFICE OF ROBERT J. HUNT, LLC 3091 E. 98th Street, Suite 280 Indianapolis, IN46280 Telephone: (317) 743-0614 Facsimile: (317) 743-0615 E-mail: rob@indianawagelaw.com POLARIS INDUSTRIES: Still Faces Securities Class Action in Minn. ---------------------------------------------------------------- Polaris Industries Inc. continues to defend itself in a securities class action lawsuit relating to certain of its off-road vehicle (ORV) products and product recalls, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2017. In September and October 2016, investors filed two purported class action complaints in the United States District Court for the District of Minnesota naming the Company and two of its executive officers as defendants. On December 12, 2016, the District Court consolidated the two actions and appointed a lead plaintiff and lead counsel. In a later order, the court set a date of March 14, 2017, for the lead plaintiff to file a consolidated amended complaint or to designate one of the filed complaints as the operative pleading. On March 14, 2017, the lead plaintiff filed a consolidated amended complaint against the Company and six current or former executives for alleged violations of the federal securities laws. The lead plaintiff seeks to represent a class of persons who purchased or acquired Polaris securities during the time period from February 20, 2015 through September 11, 2016. The amended complaint alleges that, during the proposed class period, defendants made materially false or misleading public statements about the Company's business, operations, forecasts, and compliance policies relating to certain of its ORV products and product recalls. The amended complaint asserts claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and seeks damages in an unspecified amount, pre-judgment and post- judgment interest, and an award of attorneys' fees and expenses. Polaris Industries said, "The Company intends to vigorously defend the action." Polaris Industries Inc. designs, engineers, manufactures, and markets power sports vehicles worldwide. It operates through four segments: Off-Road Vehicles (ORVs)/Snowmobiles, Motorcycles, Global Adjacent Markets, and Other. Polaris Industries Inc. was founded in 1954 and is headquartered in Medina, Minnesota. PUMA BIOTECHNOLOGY: July 7 Lead Plaintiff Motion Deadline Set ------------------------------------------------------------- Pomerantz LLP disclosed that a class action lawsuit has been filed against Puma Biotechnology, Inc. ("Puma" or the "Company") (NASDAQ:PBYI) and certain of its officers. The class action, filed in United States District Court, Central District of California, and docketed under 17-cv-03455, is on behalf of a class consisting of investors who purchased or otherwise acquired Puma securities, seeking to recover compensable damages caused by defendants' violations of the Securities Exchange Act of 1934. If you are a shareholder who purchased Puma securities between February 29, 2016 and May 4, 2017, both dates inclusive, you have until July 7, 2017 to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at www.pomerantzlaw.com. To discuss this action, contact Robert S. Willoughby at rswilloughby@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll free, ext. 9980. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and number of shares purchased. Puma Biotechnology, Inc. is a development-stage pharmaceutical company that is primarily focused on acquiring and developing drug products. At all relevant times, Puma's primary focus has been the development of the drug PB272 ("neratinib"). Neratinib was initially developed by the pharmaceutical companies Wyeth and Pfizer Inc. ("Pfizer"), and Puma acquired the rights to license the drug in 2011. Complaint alleges that throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business, operational and compliance policies. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) the Company did not anticipate that the U.S. Food and Drug Administration's ("FDA") would ultimately approve neratinib for the treatment of breast cancer; (ii) as such, Puma had overstated the drug's approval prospects and/or commercial viability; and (iii) as a result, Puma's public statements were materially false and misleading at all relevant times. On May 4, 2017, post-market, Puma disclosed the resignation of Dr. Robert Charnas, the Company's Senior Vice President, Regulatory Affairs, citing "health reasons." Dr. Charnas' resignation will be effective as of May 15, 2017, nine days before the FDA scheduled review of Puma's breast cancer drug neratinib on May 24. On this news, Puma's share price fell $5.85, or 16.01%, to close at $30.70 on May 5, 2017. On May 5, 2017, Fox Business published an online article entitled "Why Puma Biotechnology Shares are Crashing 18.2% Today." With offices in New York, Chicago, Florida, and Los Angeles, The Pomerantz Firm -- http://www.pomerantzlaw.com-- concentrates its practice in the areas of corporate, securities, and antitrust class litigation. Founded by the late Abraham L. Pomerantz, known as the dean of the class action bar, the Pomerantz Firm pioneered the field of securities class actions. Today, more than 80 years later, the Pomerantz Firm continues in the tradition he established, fighting for the rights of the victims of securities fraud, breaches of fiduciary duty, and corporate misconduct. The Firm has recovered numerous multimillion-dollar damages awards on behalf of class members. [GN] RICHARD FEARON: Graham Appeals Ruling; Mediation Call Today ----------------------------------------------------------- Plaintiffs Todd Graham, Paul Johnson and Russ Poptanycz filed an appeal from a court ruling in their lawsuit titled Todd Graham, et al. v. Richard Fearon, et al., Case No. 1:16-cv-02366, in the U.S. District Court for the Northern District of Ohio at Cleveland. The appellate case is captioned as Todd Graham, et al. v. Richard Fearon, et al., Case No. 17-3407, in the United States Court of Appeals for the Sixth Circuit. As previously reported in the Class Action Reporter on April 11, 2017, Judge Patricia A. Gaughan granted the Defendants' motion to dismiss the case. Eaton Corporation PLC is an Ireland-based manufacturer of engineered products marketed to customers in the industrial, agricultural, construction, aerospace, and vehicle markets. Eaton's stock shares trade on the New York Stock Exchange Inc. Defendants Richard Fearon, Ken D. Semelsberger, Trent Meyerhoefer, and Mark McGuire are officers of Eaton and fiduciaries of the Eaton Savings Plan. Plaintiffs Todd Graham, Paul Johnson, and Russ Poptanycz are former employees of Eaton, and are participants in the Eaton Savings Plan and in particular, the Eaton Company Stock Fund, an employee stock ownership plan that invests primarily in Eaton common stock. The Plaintiffs allege that they each purchased and held shares of Eaton stock through the Eaton Stock Fund in their plan retirement savings account from November 13, 2013, through July 28, 2014, the class period. The Plaintiffs allege that the Company's stock became artificially inflated as a result of Eaton executives' false and misleading representations. The Plaintiffs claim that plan participants, who chose to purchase the Eaton Stock Fund paid fraudulent, excessive prices for the stock during the class period and suffered financial harm to their retirement savings by over- paying for Eaton stock. A Telephone Mediation conference has been scheduled for today, May 18, 2017, at 9:30 a.m. (ET) with Paul Calico.[BN] Plaintiffs-Appellants TODD GRAHAM, PAUL JOHNSON and RUSS POPTANYCZ, Individually and on behalf of all others similarly situated, are represented by: Samuel E. Bonderoff, Esq. ZAMANSKY LLC 50 Broadway, 32nd Floor New York, NY 10004 Telephone: (212) 742-1414 Facsimile: (212) 742-1177 E-mail: samuel@zamansky.com - and - David R. Grant, Esq. SMITH & CONDENI 1801 E. Ninth Street, Suite 900 Cleveland, OH 44114-0000 Telephone: (216) 771-1760 Defendants-Appellees RICHARD FEARON, KEN D. SEMELSBERGER, TRENT MEYERHOEFER and MARK MCGUIRE are represented by: Joseph A. Castrodale, Esq. BENESCH, FRIEDLANDER, COPLAN & ARONOFF, LLP 2300 BP Tower 200 Public Square Cleveland, OH 44114 Telephone: (216) 363-4500 Facsimile: (216) 363-4588 E-mail: jcastrodale@beneschlaw.com RE GAS DEVELOPMENT: Pa. Sup. Ct. Ruling in "Cardinale" Appealed --------------------------------------------------------------- Defendants R.E. Gas Development, LLC, and Rex Energy Corporation filed an appeal from a court ruling relating to the lawsuit entitled Lucinda A. Cardinale and Iola Hugney, on behalf of themselves and onbehalfof all those similarly situated v. R.E. Gas Development, LLC, and Rex Energy Corporation, Case No. 2011-1791- CD, in the Clearfield County Court of Common Pleas. The appellate case is captioned as Cardinale v. R.E. Gas Development, LLC, Case No. 150-WAL-2017, in the Supreme Court of Pennsylvania.[BN] RS&H INC: Class of Terminated Workers Certified in "Jones" Suit --------------------------------------------------------------- The Hon. Susan C. Bucklew granted in part and denied in part the Plaintiff's motion for conditional certification filed in the lawsuit styled BRADLEY JONES, on behalf of himself and others similarly situated v. RS&H, INC., Case No. 8:17-cv-00054-SCB-JSS (M.D. Fla.). On January 6, 2017, the Plaintiff filed an age discrimination complaint under the Age Discrimination in Employment Act and the Florida Civil Rights Act. In his complaint, Mr. Jones states that he worked for the Defendant from August 1991 through June 2015, when he was terminated as part of a reduction-in-force. He believes that he was terminated due to his age. He was 53 years old at the time of his termination. The Motion is granted to the extent that the Court conditionally certifies a class consisting of the five individuals, who were over 40 years old at the time of their termination and were terminated from the Tampa location during the June 2015 RIF. Otherwise, the Plaintiff's motion is denied. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=asHrORW2 RWDT FOODS: Unpaid Overtime Sought in "Bottley" Labor Suit ---------------------------------------------------------- Latanya Bottley, individually, and on behalf of all others similarly situated, Plaintiffs, v. RWDT Foods, Inc. d/b/a Denny's Restaurants, Ronald Wooten and Donnell Thompson, Defendants, Case No. 1:17-cv-01516 (N.D. Ga., April 28, 2017), seeks minimum wage and overtime compensation, monetary and liquidated damages, prejudgment interest and costs, including reasonable attorney's fees for violation of the Fair Labor Standards Act. RWDT owns and operates 11 "Denny's" restaurants with principal office located at 2160 Scenic Highway N, Snellville, GA, 30078. Plaintiff worked for Defendants as a server and shift lead from July 2016 to October 2016 at Denny's located at 2925 Lawrenceville Suwanee Rd., Suwanee, GA 30024. The Plaintiff is represented by: Roger W. Orlando, Esq. ORLANDO LAW FIRM PC 315 W Ponce de Leon Ave #400 Decatur, GA 30030 Phone: (404) 373-1800 Fax: (404) 373-6999 - and - Jason T. Brown, Esq. Zijian Guan, Esq. JTB LAW GROUP, L.L.C. 155 2nd Street, Suite 4 Jersey City, NJ 07302 Phone: (877) 561-0000 Email: jtb@jtblawgroup.com cocozguan@jtblawgroup.com SAMSUNG ELECTRONICS: Seeks Dismissal of Overheating Phone Suit -------------------------------------------------------------- Cara Bayles and Kyle Jahner, writing for Law360, report that Samsung Electronics America Inc. asked a New York federal judge on May 5 to dismiss a putative class action over overheating Galaxy phones, arguing consumers agreed to terms and conditions that dictate such disputes must go to arbitration on an individual basis. The cellphone maker said in a motion to dismiss that named plaintiff Claire Gilligan didn't opt out of the arbitration agreement in spite of several labels and documents putting her on notice of its existence. A warning on the phone's box told her the device was "subject to additional Samsung terms and conditions." Its health and safety warranty booklet warned customers on the first page that they had 30 days to opt out of the arbitration agreement contained in those terms. The booklet also included the terms of the arbitration agreement, which said disputes over the sale, condition or performance of the phone would be resolved out of court, and that claims couldn't be consolidated into a class action. The arbitration agreement was also available on the phones themselves, on Samsung's website and in the phone's user manual. Ms. Gilligan -- who filed suit in December saying her S7 and three of her four replacement phones overheated and broke -- lives in Pennsylvania and filed suit in New York. But neither state requires a party's signature on a consumer contract, since using the phone was "sufficient to manifest assent," Samsung's motion said, and both states find such shrink-wrapped terms valid. "It does not matter whether plaintiff in fact read the guidebooks and saw the arbitration language," the motion said. "Plaintiff cannot reasonably claim that she never noticed the guidebook and its terms and conditions, given that she received it five separate times (with each of her original and replacement phones), alleges that she experienced repeated problems and actually brings a breach of express warranty claim in this case." Ms. Gilligan seeks to represent a nationwide class of cellphone users who allege Samsung has ignored overheating dangers in models other than the Galaxy Note 7, which was recalled after dozens burst into flames. She is suing Samsung for breach of contract and unjust enrichment, as well as a Pennsylvania consumer protection law claim for a subclass from that state. But Samsung's May 5 motion said its terms expressly forbid customers' claims from being combined and that such contractual class waivers have been found to be enforceable in the U.S. Supreme Court's 2011 Concepcion and 2013 Italian Colors Restaurant decisions. Samsung also argued that the arbitration agreement's scope and applicability to Ms. Gilligan's case should be determined by an arbitrator, not the court. But it also set forth arguments for why the suit fell under the arbitration clause, pointing out that the contract is compliant with the American Arbitration Association, and it has a broad reach, applying to disputes "arising in any way" from Samsung's limited warranty on the "sale, condition or performance" of its phones. Nor could the putative class prove that the arbitration agreement was inapplicable or invalid, Samsung said. The provision of the contract that assigned questions of arbitrability to the arbitrator covered issues of unconscionability as well. And Samsung argued the contract was "extremely fair and consumer- friendly," since it included a penalty-free opt out, limited fees for customers and a provision that only allowed customers -- not Samsung -- to pursue attorneys' fees. Samsung also anticipated Gilligan would cite the Ninth Circuit's Norcia decision and the Third Circuit's Noble ruling, both of which found earlier this year that Samsung arbitration contracts on older devices were unenforceable. In Norcia, the court found California law hadn't changed since Hill v. Gateway 2000 Inc., a Seventh Circuit decision that found shrink-wrapped agreements are binding, Samsung said, but New York and Pennsylvania do recognize such contracts. The company also pointed out the arbitration notices in those cases weren't as conspicuous as the labeling for the phones at issue in Gilligan's suit. Attorneys and representatives for Samsung and the class were not immediately available for comment on May 8. Kenneth L. Chernof, Robert J. Katerberg, Elisabeth S. Theodore, Daniel F. Jacobson and Ingo W. Sprie of Arnold & Porter Kaye Scholer LLP. Ms. Gilligan is represented by Lori G. Feldman and Courtney E. Maccarone of Levi & Korsinsky LLP and Janine L. Pollack of Wolf Haldenstein Adler Freeman & Herz LLP. The case is Gilligan v. Samsung Electronics America Inc., case number 1:16-cv-09803, in the U.S. District Court for the Southern District of New York. [GN] SAN JOSE, CA: Class of Firefighters Certified in "Wallace" Suit --------------------------------------------------------------- U.S. Magistrate Judge Howard R. Lloyd grants the Plaintiffs' motion for conditional certification in the lawsuit styled DARREN WALLACE, et al. v. CITY OF SAN JOSE, Case No. 5:16-cv-04914-HRL (N.D. Cal.). The FLSA collective class is defined as: All current and former employees (a) employed as a fire recruit, firefighter, fire engineer, fire captain, fire prevention inspector, arson investigator or battalion chief at any time on or after March 11, 2013 (for willful FLSA violations) or March 11, 2014 (generally) and (b) who have opted-in or will opt-in on or before April 25, 2017. The lawsuit is brought as a putative collective action for alleged violations of the Fair Labor Standards Act, as well as California Labor Code. The Plaintiffs are San Jose firefighters, who allege that the City of San Jose has not correctly calculated overtime for Fire Department employees. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=66a41F43 The Plaintiffs are represented by: Carol Lynn Koenig, Esq. Christopher Eugene Platten, Esq. WYLIE, MCBRIDE, PLATTEN & RENNER 2125 Canoas Garden Avenue, Suite 120 San Jose, CA 95125 Telephone: (408) 979-2920 Facsimile: (408) 979-2934 E-mail: ckoenig@wmprlaw.com cplatten@wmprlaw.com The Defendant is represented by: Kathryn Jennifer Zoglin, Esq. SAN JOSE CITY ATTORNEY'S OFFICE 200 E Santa Clara St., 16th Floor San Jose, CA 95113 Telephone: (408) 535-1900 E-mail: Katie.Zoglin@sanjoseca.gov SCOTTRADE INC: Faces Class Action in Florida Over Data Breach ------------------------------------------------------------- Shayna Posses, writing for Law360, reports that discount brokerage firm Scottrade Inc. failed to take appropriate steps to protect customers' sensitive data, opening the door to a data breach that compromised more than 4.6 million people's personal information, according to a proposed class action that landed in Florida federal court on May 5. Angela Lynn Martin's complaint alleges that Scottrade's lax data security practices made its databases an easy target for hackers who accessed millions of customers' personally identifiable information -- including Social Security numbers and contact information -- from September 2013 to around February 2014 without detection, using the data for a variety of schemes that resulted in the loss of millions of dollars. "Scottrade owed a legal duty to plaintiff and the other class members to maintain reasonable and adequate security measures to secure, protect, and safeguard the personal information stored on its network," the complaint says. "Scottrade breached that duty by failing to design and implement appropriate firewalls and computer systems, failing to properly and adequately encrypt data, and unnecessarily storing and retaining plaintiff's and the other class members' personal information on its inadequately protected network." Ms. Martin alleges that Scottrade promises to use "industry leading security technologies" to protect the personal and financial information it requires customers to provide, including employment information, credit history and investment experience. In reality, Scottrade's security practices were far from adequate, Martin claims, saying the breach that forms the basis of her suit wasn't the first time the firm discovered that its cybersecurity was insufficient. Previously, the firm's network was hacked by criminals who used customer account information to conduct fraudulent stock trades, according to the complaint. Government regulators had even fined Scottrade because of its inadequate cybersecurity procedures and oversight, the suit alleges. Nonetheless, Ms. Martin says, Scottrade failed to take reasonable measures to safeguard customers' personally identifiable information, leading a hacker to correctly predict that the firm's databases would be "a simple hit." After scoring the login credentials for one account, the hackers were able to access and export the data without detection for several months, according to the complaint. The hackers used the information for a number of schemes, including a stock price manipulation plot that amassed millions of dollars, the suit alleges. The firm's cybersecurity measures were so lacking that it didn't realize the theft had occurred until the Federal Bureau of Investigation notified Scottrade in August 2015, the suit alleges. Scottrade finally informed affected customers in October of that year, offering one year of credit monitoring and identity theft insurance, the complaint says. However, this was far from sufficient, Ms. Martin says, claiming that the notice was materially misleading and the mitigation services offered weren't enough -- especially considering the breach had happened years earlier. The following month, the U.S. Department of Justice unsealed two indictments revealing that the Scottrade data breach was part of an "orchestrated massive" scheme to hack the firm and other financial institutions with large customer databases, the complaint says. Ms. Martin seeks to represent all Florida residents whose personal or financial information was compromised as a result of the breach first disclosed by Scottrade on Oct. 2, 2015. She brings claims for breach of contract -- or, in the alternative, breach of implied contract -- unjust enrichment, declaratory relief and violations of the Florida Deceptive and Unfair Trade Practices Act. The consumer originally filed her complaint in March in Pasco County court, and Scottrade removed the action to federal court on May 5. According to the firm, Ms. Martin had first filed suit in Florida federal court in December 2015, making the same allegations she makes now. She agreed to transfer her case to Missouri federal court, where it was consolidated with several similar actions, according to Scottrade. The consolidated complaint was dismissed in July 2016, and one of her co-plaintiffs appealed to the Eighth Circuit, the firm said. Ms. Martin didn't join the appeal and later filed the present action in state court, according to Scottrade. Representatives for Ms. Martin and Scottrade didn't immediately return requests for comment on May 8. Ms. Martin is represented by the Dogali Law Group PA, Blood Hurst & O'Reardon LLP, Siprut PC, Cohelan Khoury & Singer and Spreter Law Firm APC. Scottrade is represented by Niels P. Murphy -- nmurphy@murphyandersonlaw.com -- and Lawton R. Graves -- lgraves@murphyandersonlaw.com -- of Murphy & Anderson PA and Thomas E. Douglass -- tdouglass@thompsoncoburn.com -- Chris Hohn - - chohn@thompsoncoburn.com -- and Brandi L. Burke -- bburke@thompsoncoburn.com -- of Thompson Coburn LLP. The suit is Angela Lynn Martin v. Scottrade Inc., suit number 8:17-cv-01042, in the U.S. District Court for the Middle District of Florida. [GN] SERVICE CORP: Vasquez Lawsuit on Units' Labor Practices Ongoing --------------------------------------------------------------- Service Corporation International's subsidiaries still defend themselves in the lawsuit captioned Adrian Mercedes Vasquez, an individual and on behalf of others similarly situated, v. California Cemetery and Funeral Services, LLC, et al; Case No. BC58837, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission the quarterly period ended March 31, 2017. The claims have been ordered to arbitration, with the arbitrator to determine whether the claims will proceed as a class or individual claims. The lawsuit was filed in the Superior Court of the State of California for the County of Los Angeles in July 2015 against SCI subsidiaries and purports to be brought on behalf of current and former non-exempt California employees of defendants during the four years preceding the filing of the complaint. The plaintiff alleges numerous causes of action for alleged wage and hour pay violations. The plaintiff seeks unpaid wages, compensatory and punitive damages, attorneys' fees and costs, interest, and injunctive relief. In addition, the plaintiff filed an unfair labor practice charge against defendants with the National Labor Relations Board alleging that by enforcing a mandatory arbitration provision, defendants allegedly violated the National Labor Relations Act. "We cannot quantify our ultimate liability, if any, in this lawsuit," the Company said. Service Corporation International, together with its subsidiaries, provides deathcare products and services in the United States and Canada. The Company operates through Funeral and Cemetery segments. The Company was founded in 1962 and is headquartered in Houston, Texas. SERVICE CORP: Plaintiffs to Appeal Dismissal of "Moulton" Suit -------------------------------------------------------------- Service Corporation International disclosed in its Form 10-Q filing with the U.S. Securities and Exchange Commission the quarterly period ended March 31, 2017, that plaintiffs have filed documents indicating that they are appealing the dismissal of the class action filed in connection with the Company's proposed acquisition of Stewart Enterprises, Inc. The case, Karen Moulton, Individually and on behalf of all others similarly situated v. Stewart Enterprises, Inc., Service Corporation International and others ; Case No. 2013-5636; in the Civil District Court Parish of New Orleans, was filed as a class action in June 2013 against SCI and its subsidiary. The plaintiffs allege that SCI aided and abetted breaches of fiduciary duties by Stewart Enterprises and its board of directors in negotiating the combination of Stewart Enterprises with a subsidiary of SCI. The plaintiffs seek damages concerning the combination. The Company filed exceptions to the plaintiffs' complaint that were granted in June 2014. Thus, subject to appeals, SCI will no longer be party to the suit. The case has continued against the Company's subsidiary Stewart Enterprises and its former individual directors. However, in October 2016, the court entered a judgment dismissing all of plaintiffs' claims. The Company stated, "We cannot quantify our ultimate liability, if any, for the payment of damages." Service Corporation International, together with its subsidiaries, provides deathcare products and services in the United States and Canada. The Company operates through Funeral and Cemetery segments. The Company was founded in 1962 and is headquartered in Houston, Texas. SERVICE CORP: Still Faces Class Action Alleging TCPA Violations --------------------------------------------------------------- A Service Corporation International continues to defend itself in a class action lawsuit related to Telephone Consumer Protection Act violations, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission the quarterly period ended March 31, 2017. The case, Linda Allard, on behalf of herself and all others similarly situated v. SCI Direct, Inc., Case No 16-1033; In the United States District Court, Middle District of Tennessee, was filed in June 2016 as a class action. Plaintiff alleges she received telemarketing telephone calls that were made with a prerecorded voice or made by an automatic telephone dialing system in violation of the Act. Plaintiff seeks actual and statutory damages, as well as attorney's fees and costs. The Company stated, "We cannot quantify our ultimate liability, if any, in this lawsuit." Service Corporation International, together with its subsidiaries, provides deathcare products and services in the United States and Canada. The Company operates through Funeral and Cemetery segments. The Company was founded in 1962 and is headquartered in Houston, Texas. SPROUTS FARMERS: Appeals Ruling in PERS of MS Suit to 9th Circuit ----------------------------------------------------------------- Defendants AP Sprouts Holdings (Overseas), L.P., AP Sprouts Holdings, LLC, Barclays Capital Inc., Donna Berlinski, Shon Boney, Joseph Fortunato, Andrew S. Jhawar, Amin N. Maredia, Lawrence P. Molloy, Morgan Stanley & Co. LLC, J. Douglas Sanders, Sprouts Farmers Market Inc. and Steven H. Townsend filed an appeal from a court ruling in the lawsuit titled PERS of MS v. Sprouts Farmers Market Inc., et al., Case No. 2:16-cv-00815-ROS, in the U.S. District Court for the District of Arizona, Phoenix. The lawsuit alleges violations of securities laws. The appellate case is captioned as PERS of MS v. Sprouts Farmers Market Inc., et al., Case No. 17-15818, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Opening brief of Appellants AP Sprouts Holdings (Overseas), L.P., AP Sprouts Holdings, LLC, Barclays Capital Inc., Donna Berlinski, Shon Boney, Joseph Fortunato, Andrew S. Jhawar, Amin N. Maredia, Lawrence P. Molloy, Morgan Stanley & Co. LLC, J. Douglas Sanders, Sprouts Farmers Market Inc. and Steven H. Townsend is due on July 31, 2017; -- Appellee Public Employees' Retirement System of Mississippi's answering brief is due on August 29, 2017; and -- Appellant's optional reply brief is due 14 days after service of the answering brief.[BN] Plaintiff-Appellee PUBLIC EMPLOYEES' RETIREMENT SYSTEM OF MISSISSIPPI, Individually and on Behalf of All Others Similarly Situated, is represented by: James W. Johnson, Esq. Michael H. Rogers, Esq. LABATON SUCHAROW LLP 140 Broadway New York, NY 10005-1108 Telephone: (212) 907-0700 Facsimile: (212) 818-0477 E-mail: jjohnson@labaton.com mrogers@labaton.com - and - Hart L. Robinovitch, Esq. ZIMMERMAN REED, LLP 14646 N. Kierland Blvd. Scottsdale, AZ 85254 Telephone: (480) 348-6400 Facsimile: (480) 648-6415 E-mail: hart.robinovitch@zimmreed.com Defendants-Appellants SPROUTS FARMERS MARKET INC., J. DOUGLAS SANDERS, AMIN N. MAREDIA, DONNA BERLINSKI, ANDREW S. JHAWAR, SHON BONEY, JOSEPH FORTUNATO, LAWRENCE P. MOLLOY and STEVEN H. TOWNSEND are represented by: Maureen Beyers, Esq. BEYERS FARRELL PLLC 99 East Virginia Avenue, Suite 220 Phoenix, AZ 85004-1195 Telephone: (602) 603-1521 Facsimile: (602) 664-2053 E-mail: mbeyers@omlaw.com - and - Susan Felice DiCicco, Esq. Brian Andrew Herman, Esq. MORGAN, LEWIS & BOCKIUS LLP 101 Park Avenue New York, NY 10178 Telephone: (212) 309-6000 Facsimile: (212) 752-5378 E-mail: susan.dicicco@morganlewis.com Defendants-Appellants AP SPROUTS HOLDINGS, LLC, and AP SPROUTS HOLDINGS (OVERSEAS), L.P., are represented by: Seth Alben Aronson, Esq. O'MELVENY & MYERS, LLP 400 South Hope Street, 15th Floor Los Angeles, CA 90071-2899 Telephone: (213) 430-7486 Facsimile: (213) 430-6407 E-mail: saronson@omm.com - and - Jonathan Rosenberg, Esq. Abby F. Rudzin, Esq. O'MELVENY & MYERS LLP Seven Times Square New York, NY 10036 Telephone: (212) 326-2000 Facsimile: (212) 326-2061 E-mail: jrosenberg@omm.com arudzin@omm.com - and - Maureen Beyers, Esq. BEYERS FARRELL PLLC 99 East Virginia Avenue, Suite 220 Phoenix, AZ 85004-1195 Telephone: (602) 603-1521 Facsimile: (602) 664-2053 E-mail: mbeyers@omlaw.com Defendants-Appellants BARCLAYS CAPITAL INC. and MORGAN STANLEY & CO. LLC are represented by: Agnes Dunogue, Esq. Adam Selim Hakki, Esq. SHEARMAN & STERLING, LLP 599 Lexington Avenue New York, NY 10022-6069 Telephone: (212) 848-4000 Facsimile: (212) 848-5257 E-mail: Agnes.Dunogue@Shearman.com ahakki@shearman.com - and - Jesse B. Simpson, Esq. LEWIS ROCA ROTHGERBER CHRISTIE LLP 201 E. Washington Street Phoenix, AZ 85004-2595 Telephone: (602) 262-5387 Facsimile: (602) 734-3741 E-mail: jsimpson@lrlaw.com ST. CHARLES: Class Action Settlement Gets Preliminary Court Okay ---------------------------------------------------------------- Tara Bannow, writing for The Bulletin, reports that a U.S. District Court judge has issued preliminary approval of a $9.5 million class-action settlement in a case that alleged St. Charles Health System has not paid employees for mandatory training. Carol Lynn Giles, a registered nurse at what was then Pioneer Memorial Hospital in Prineville, filed the lawsuit in January 2013. The complaint alleged St. Charles violated the Fair Labor Standards Act by failing to reimburse Giles and other hourly nurses and respiratory therapists for mandatory training. The settlement means neither party concedes the merit of its case. Anyone entitled to settlement compensation will be notified. According to court documents, there are 50 named plaintiffs in the case in addition to Giles, who maintains an active nursing license. The settlement includes current and former employees who worked between Dec. 12, 2005, and the present and were required to take certifications that covered things such as basic life support, advanced life support, neonatal resuscitation, trauma evaluation and management and more. It accounts for time spent in classes, completing assignments, reading and studying. It includes employees at all four hospitals managed by the health system: St. Charles Bend, St. Charles Redmond, St. Charles Madras (formerly Mountain View Hospital) and St. Charles Prineville (formerly Pioneer Memorial Hospital). It also includes Air Life of Oregon. The lawsuit said St. Charles failed to pay employees for training time or overtime when the training pushed their work hours past 40 hours per week or 12 hours per day. It also alleged St. Charles did not pay employees who ended their employment their final paycheck wages within the lawful time frame. The settlement money is being administered by Beaverton-based Epiq Class Action & Claims Solutions Inc. Anyone who believes they may be entitled to settlement proceeds and didn't receive notice can call Roxanne Farra, the attorney representing current and former St. Charles employees, at 541-385-3017. Neither Farra nor St. Charles returned calls seeking comment on May 5. [GN] TILE SHOP HOLDINGS: Court to Hear Class Suit Settlement in May 3 ---------------------------------------------------------------- A hearing on the final approval of an agreement to settle a consolidated class action lawsuit against Tile Shop Holdings, Inc., among other defendants, is set for May 3, 2017, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2017. The Company, two of its former executive officers, three of its outside directors, two of its former directors, and certain companies affiliated with the directors, are defendants in a consolidated class action brought under the federal securities laws and now pending in the United States District Court for the District of Minnesota under the caption Beaver County Employees' Retirement Fund, et al. v. Tile Shop Holdings, Inc., et al. Several related actions were filed in 2013 and subsequently consolidated. The plaintiffs are three investors who represent classes consisting of (1) all purchasers of Tile Shop common stock between August 22, 2012 and January 28, 2014 (the "class period"), seeking to pursue remedies under the Securities Exchange Act of 1934; and (2) all purchasers of Tile Shop common stock pursuant and/or traceable to the Company's December 2012 registration statement, seeking to pursue remedies under the Securities Act of 1933. Six firms who were underwriters in the December 2012 secondary public offering are also named as defendants. The plaintiffs allege that during the class period, defendants failed to disclose certain related party transactions in the Company's SEC filings and press releases. The plaintiffs assert claims under Sections 11, 12(a)(2), and 15 of the Securities Act of 1933, and under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. In addition to attorneys' fees and costs, the plaintiffs seek to recover damages on behalf of class members. Subsequent to December 31, 2016, the parties entered into a Stipulation of Settlement ("Stipulation") dated January 13, 2017 to settle all claims. Pursuant to the Stipulation, US$9.5 million was paid on behalf of all defendants. The Company has agreed to pay US$5.0 million of that amount and the insurance company providing coverage for the initial tier of the Company's directors and officers liability insurance policy has agreed to pay US$4.5 million of that amount. The Company and the insurance provider subsequently deposited money into an escrow account that had been established to hold the settlement fund. The settlement is subject to court approval. The court has scheduled a hearing on whether to grant final approval of the settlement for May 3, 2017. Additional information on the case is available at: http://www.tileshopsecuritiessettlement.com/ Class Counsel for Plaintiffs: Matthew L. Mustokoff, Esq. Kimberly A. Justice, Esq. Michelle M. Newcomer, Esq. Margaret E. Onasch, Esq. Nathan Hasiuk, Esq. KESSLER TOPAZ MELTZER & CHECK, LLP 280 King of Prussia Road Radnor, PA 19087 Telephone: (610) 667-7706 Facsimile: (610) 667-7056 E-mail: mmustokoff@ktmc.com kjustice@ktmc.com nnewcomer@ktmc.com monasch@ktmc.com nhasiuk@ktmc.com - and - Stacey M. Kaplan, Esq. Paul A. Breucop, Esq. KESSLER TOPAZ MELTZER & CHECK, LLP One Sansome Street, Suite 1850 San Francisco, CA 941904 Telephone: (415) 400-3000 Facsimile: (415) 400-3001 E-mail: skaplan@ktmc.com pbreucop@ktmc.com - and - Samuel H. Rudman, Esq. Joseph Russello, Esq. Francis P. Karam, Esq. William J. Geddish, Esq. Christopher T. Gilroy, Esq. ROBBINS GELLER RUDMAN & DOWD, LLP 58 South Service Road, Suite 200 Melville, NY 11747 Telephone: (631) 367-7100 Facsimile: (631) 367-1173 E-mail: srudman@rgrdlaw.com jrussello@rgrdlaw.com fkaram@rgrdlaw.com wgeddish@rgrdlaw.com cgilroy@rdgrdlaw.com - and - JEFFREY D. LIGHT, Esq. ROBBINS GELLER RUDMAN & DOWD, LLP 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: 619/231-1058 Facsimile: 619/231-7423 E-mail: jeffl@rgrdlaw.com Liaison Counsel for Plaintiffs: Karl L. Cambronne, Esq. Jeffrey D. Bores, Esq. Bryan L. Bleichner, Esq. CHESTNUT CAMBRONNE, PA 17 Washington Avenue North, Suite 300 Minneapolis, MN 55401-2048 Telephone: (612) 339-7300 Facsimile: (612) 336-2940 E-mail: kcambronne@chestnutcambronne.com jbores@chestnutcambronne.com bbleichner@chestnutcambronne.com Tile Shop Holdings, Inc. operates as a specialty retailer of manufactured and natural stone tiles, setting and maintenance materials, and related accessories in the United States. It offers approximately 4,000 products, including ceramic, porcelain, glass, cement, wood look, and metal tiles; and marble, granite, quartz, sandstone, travertine, slate, and onyx tiles primarily under the Rush River and Fired Earth brand names. The Company also manufactures setting and maintenance materials, such as thinset, grout, and sealers under the Superior brand name. The Company also sells its products through its Website, tileshop.com. Tile Shop Holdings, Inc. was founded in 1985 and is headquartered in Plymouth, Minnesota. TOTAL GAS & POWER: 2nd Circuit Appeal Filed in "Anastasio" Suit --------------------------------------------------------------- Plaintiffs Alan Harry, Levante Capital, LLC and Public Utility District No. 1 of Clark County, Washington, filed an appeal from the District Court's opinion and judgment, both dated March 27, 2017, entered in the lawsuit titled Anastasio v. Total Gas & Power North America, Inc., Case No. 15-cv-9689, in the U.S. District Court for the Southern District of New York (New York City). As previously reported in the Class Action Reporter, the lawsuit seeks damages, relief and attorneys' fees in connection with the Defendants' alleged violation of the Commodity Exchange Act and Section 2 of the Sherman Act. The Plaintiffs allege that the Defendants engaged in manipulating bid-week prices to advantage their derivative natural gas positions resulting in artificial prices and price trends. The appellate case is captioned as Anastasio v. Total Gas & Power North America, Inc., Case No. 17-1199, in the United States Court of Appeals for the Second Circuit.[BN] Plaintiffs-Appellants Alan Harry, Levante Capital, LLC, and Public Utility District No. 1 of Clark County, Washington, DBA Clark Public Utilities, are represented by: David E. Kovel, Esq. KIRBY MCINERNEY LLP 825 Third Avenue, 16th Floor New York, NY 10022 Telephone: (212) 317-2300 Facsimile: (212) 751-2540 E-mail: dkovel@kmllp.com Defendants-Appellees Total Gas & Power North America, Inc., Total S.A., and Total Gas & Power Limited are represented by: David J. Debold, Esq. GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, NW Washington, DC 20036 Telephone: (202) 955-8200 Facsimile: (202) 530-9682 E-mail: ddebold@gibsondunn.com UNITIL CORP: Individual Claims in Bellermann Case Remain Pending ---------------------------------------------------------------- Individual claims in a putative class action captioned Bellermann et al v. Fitchburg Gas and Electric Light Company remain pending, according to Unitil Corporation's Form 10-Q filed with the U.S. Securities and Exchange Commission on April 27, 2017. The Massachusetts Supreme Judicial Court had denied class certification status in the case in July 2016. In early 2009, the putative class action complaint was filed against Unitil's Massachusetts based utility, Fitchburg, in Massachusetts' Worcester Superior Court. The Complaint seeks an unspecified amount of damages, including the cost of temporary housing and alternative fuel sources, emotional and physical pain and suffering and property damages allegedly incurred by customers in connection with the loss of electric service during the ice storm in Fitchburg's service territory in December 2008. The Massachusetts Supreme Judicial Court issued an order denying class certification status in July 2016, though the plaintiffs' individual claims remain pending. Unitil stated, "The Company continues to believe that this suit is without merit and will continue to defend itself vigorously." The Town of Lunenburg filed a separate action in the Court arising out of the December 2008 ice storm. The Court granted the Company's Motion for Summary Judgment on all counts in December 2016 and dismissed the Town's complaint. The Court's decision remains subject to a potential motion for reconsideration and appeal. Unitil said, "The Company believes, based upon information furnished by counsel and others, that the ultimate resolution of these suits will not have a material impact on its financial position, operating results or cash flows." Unitil Corporation, a public utility holding company, engages in the distribution of electricity and natural gas in the United States. It operates through three segments: Utility Gas Operations, Utility Electric Operations, and Non-Regulated. Unitil Corporation was incorporated in 1984 and is headquartered in Hampton, New Hampshire. US BANCORP: Class Action Settlement Gets Preliminary Court OK ------------------------------------------------------------- Suevon Lee, writing for Law360, reports that a California federal judge preliminarily approved a $7 million class action settlement between U.S. Bancorp and workers who claimed the bank stiffed them on meal break periods and itemized wage statements, bringing the more than three-year-old litigation closer to an end. The preliminary approval pertains to a deal struck between the Minneapolis, Minnesota-based parent company of U.S. Bank and roughly 25,000 potential class members who allege meal break and wage statement violations under the California Labor Code and Private Attorneys General Act. "The risk of future motions for summary judgment, for class certification and eventual appeals weighs in favor of settlement at this stage of the proceedings," U.S. District Judge Cynthia Bashant wrote in her order. Named plaintiff Monica Wert filed suit in November 2013, alleging that U.S. Bank failed to provide wage statements to California employees showing total hours worked or deductions from wages, among other things, amending her suit a year later to tack on the claim that she and other non-exempt workers were forced to work more than five hours without meal breaks. The proposed settlement establishes four various subclasses that relate to alleged paystub violations spanning the time frame of Nov. 13, 2012 to July through December 2014; alleged meal period premium payment violations spanning November 2012 to December 2016 and alleged meal period pay computation violations spanning November 2009 and December 2016, according to the order. Class counsel will request 30 percent of the settlement, or $2.1 million, as well as costs not to exceed $25,000. That on top of payments to the Labor and Workforce Development Agency at 75 percent of the fund means the net settlement will be $4.2 million, according to the order. In defense of the allegations, U.S. Bank argued that employees had access to required information under an electronic system and that the omission of any information in wage statements resulted in no injury. Nevertheless, the bank, which declined comment on May 8, has agreed to make changes to its payroll system. Judge Bashant held in her preliminary approval that common questions in the suit include whether itemized wage statements omitted or misreported information and whether U.S. Bank had a policy of not providing meal periods to class members. She set a final approval hearing for September 25. The plaintiffs are represented by Matthew S. Dente and Diane E. Richard of Dente Richard LLP, George C. Aguilar and Brian Robbins of Robbins Arroyo LLP and London D. Meservy of Meservy Law PC. U.S. Bancorp is represented by Joan B. Tucker Fife of Winston & Strawn LLP and Emilie C. Woodhead of Winston & Strawn LLP. The case is Monica R. Wert v. U.S. Bancorp et al., case number 3:13-cv-03130 in the U.S. District Court for the Southern District of California. [GN] US STEEL: Rosen Law Firm Files Securities Class Action ------------------------------------------------------ Rosen Law Firm, a global investor rights law firm, on May 8 announced the filing of a class action lawsuit on behalf of purchasers of United States Steel Corporation securities (NYSE:X) from November 1, 2016 through April 25, 2017, inclusive (the "Class Period"). The lawsuit seeks to recover damages for U.S. Steel investors under the federal securities laws. To join the U.S. Steel class action, go to http://rosenlegal.com/cases-1123.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. The complaint alleges that defendants during the Class Period issued false and misleading statements and/or failed to disclose that: (1) while U.S. Steel was implementing its Carnegie Way program, it was focused on cutting costs and was not making investments necessary to position U.S. Steel so that it could respond to improved market conditions; (2) defendants' failure to invest in improving capital assets during the industry downturn, in order to report apparent financial improvements, meant that U.S. Steel had higher production costs than its competitors, even in the face of improved pricing, which would negatively impact its financial results; and (3) defendants were forestalling expensive capital equipment upgrades in order to boost U.S. Steel's short- term financial results at the expense of long-term financial performance, leaving U.S. Steel in need of accelerated, costly equipment upgrades that would leave U.S. Steel years away from generating improved financial performance. 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 July 3, 2017. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to join the litigation, go to http://rosenlegal.com/cases-1123.htmlor to discuss your rights or interests regarding this class action, please contact Phillip Kim, Esq. or Kevin Chan, Esq. of Rosen Law Firm toll free at 866-767- 3653 or via e-mail at pkim@rosenlegal.com or kchan@rosenlegal.com. Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. [GN] USG CORP: Still Faces Wallboard Price Fixing Conspiracy Claims -------------------------------------------------------------- USG Corporation continues to defend itself in litigations, including a class action in Canada, related to a conspiracy in fixing wallboard prices, according to Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2017. In the first quarter of 2015, USG, United States Gypsum Company, L&W Supply Corporation, and 7 other wallboard manufacturers were named as defendants in a lawsuit filed in federal court in California by 12 homebuilders alleging that since at least September 2011, U.S. wallboard manufacturers conspired to fix and raise the price of gypsum wallboard sold in the United States and to effectuate the alleged conspiracy by ending the practice of providing job quotes on wallboard. The lawsuit was transferred to the United States District Court for the Eastern District of Pennsylvania under the title In re: Domestic Drywall Antitrust Litigation, MDL No. 2437. In the second quarter of 2016, the Court dismissed with prejudice the portions of the homebuilders' complaint alleging a conspiracy in 2014 and 2015, ruling that there were insufficient factual allegations to allow such a claim to go forward. The homebuilders' claims alleging a conspiracy prior to 2014 have not been dismissed, and the case proceeds as to those claims. USG is retaining the liability with respect to L&W Supply Corporation. Beginning in the third quarter of 2013, class action lawsuits making similar allegations with regard to Canada were filed in Quebec, Ontario and British Columbia courts on behalf of purchasers of wallboard in Canada and naming USG Corporation, United States Gypsum Company, CGC Inc., and other wallboard manufacturers as defendants. The Company stated, "We believe that the cost, if any, of resolving the homebuilders' lawsuit and Canadian class action litigation will not have a material effect on our results of operations, financial position or cash flows." USG Corporation, through its subsidiaries, manufactures and sells building materials worldwide. The Company distributes its products through building material dealers, home improvement centers and other retailers, specialty wallboard distributors, and contractors. USG Corporation was founded in 1901 and is headquartered in Chicago, Illinois. VALEANT PHARMACEUTICALS: Allergan Investors' Class Action Looms --------------------------------------------------------------- Cynthia Koons and Edvard Pettersson, writing for Bloomberg News, report that when Bill Ackman unceremoniously dumped his Valeant stock in March, it looked like he was done with the formerly high- flying drugmaker. Now, a common foe may turn the sudden breakup into a drawn-out, messy divorce. Ackman and Valeant Pharmaceuticals International Inc. are co-defendants in a $2 billion lawsuit brought in December 2014 by former investors in Botox-maker Allergan Inc. The plaintiffs allege they were conned by Ackman when they sold him their Allergan shares in 2014, not knowing that the billionaire was teaming up with Valeant in a hostile takeover bid that would send Allergan's stock soaring. For Valeant, which carries about $30 billion in debt, a legal judgment that could total hundreds of millions of dollars would dent the company's already shaky finances. Ackman, meanwhile, could face further tarnishing of his reputation. The 50-year-old head of Pershing Square Capital Management has already apologized to his investors after losing $4 billion on his Valeant bet, calling it a "huge mistake." One way to make the case go away -- and quickly -- is for Ackman and Valeant to reach a settlement with the former shareholders, who allege that both parties knew their deal would trigger a bidding war for Allergan. Should the case progress, the defendants face the unappealing option of eventually going to trial. "As you get closer and closer to trial, I suspect the settlement value of the case goes up somewhat," said Lawrence Hamermesh, a professor at Widener University's Delaware Law School. Ackman's wealth and fame might make him "not an appealing figure to a jury," he said. The case is moving forward. In March, a federal judge in Santa Ana, California, denied a request from Ackman and Valeant to dismiss the suit and allowed it to proceed as a class action. That gives the shareholders added leverage to either secure a settlement or bring their allegations to trial. Read more: Ackman must face Allergan shareholders as class action The defendants may be emboldened by the fact that the U.S. Securities and Exchange Commission hasn't filed any case against Ackman for securities violations. That leaves the shareholders to prove what the SEC hasn't pursued. The SEC declined to comment. "If it were really egregious, you'd have to wonder why they didn't devote some of their budget to an enforcement case," Hamermesh said of the SEC. Still, he said, "It's not at all uncommon to have a private case when there's no public-enforcement case." Ackman might be tempted to settle before November, when a deal with Valeant that would restrict his potential losses is set to expire. The drugmaker said in a February filing that it had agreed to pay 60 percent of any settlement so long as both the company and the activist investor agree to the terms. Valeant declined to comment on the lawsuit, as did a spokesman for Pershing Square. Pershing Square has set aside $75 million for the case, according to its annual report. If that's intended to cover about 40 percent of a settlement, it suggests the defendants believe they can settle for less than $200 million. That might not cut it with the shareholders. "I wouldn't settle for 10 cents on the dollar," said Reed Kathrein -- reed@hbsslaw.com -- a lawyer with Hagens Berman Sobol Shapiro LLP who represents investors in securities-fraud lawsuits. Kathrein isn't involved in the case. Bitter Pill Because the plaintiffs' claim that Ackman's insider trades cost them $2 billion, a settlement totaling about $500 million would be more plausible, according to Mr. Kathrein. That wouldn't be easy to swallow for Valeant, which was set to release its first-quarter earnings on May 9. The drugmaker's fortunes have been declining, and its cash position was $542 million at the end of 2016, down from $928 million four years earlier. The stock has fallen by more than 90 percent over the past 18 months following scandals related to Valeant jacking up the price of old drugs and its relationship with a mail-order pharmacy that allegedly boosted the company's sales. The company is also the subject of federal investigations and shareholder lawsuits unrelated to Allergan. With it high debt load and no legal reserves as of the end of 2016, Valeant doesn't have much room to maneuver. "Just like the government investigations, it's a bit of a black hole, it is something that should give one pause when looking at the stock," said David Amsellem, a Piper Jaffray analyst. Ackman and Valeant have turned to a federal appeals court to overturn the designation as a class action, saying the shareholders' claims are unprecedented. In their March 28 petition, they said the suit, should it be successful, would "revolutionize" insider-trading law and the regulation of tender offers. Lawyers with Bernstein Litowitz Berger & Grossmann LLP who represent the Allergan shareholders declined to comment. Takeover Attempt The case stems from a period in early 2014 when Pershing Square was quietly accumulating a 9.7 percent stake in Allergan. On April 21, Valeant and Pershing Square disclosed that they were partnering on a $42.4 billion bid to merge Valeant with Allergan. The next day, Allergan shares rose to $163.65, up from $125.54 on Feb. 25, when Ackman began his buying spree. Allergan resisted the bid, calling the price "grossly inadequate" and saying it had concerns about Valeant's business model. In June 2014, Valeant filed a $54 billion tender offer, saying Allergan was refusing to act in the interest of its shareholders. The takeover battle ended in November of that year when Actavis Plc stepped in as a so-called white knight to buy Allergan for $219 a share, topping Valeant's bid of about $180 a share. According to the plaintiffs, Ackman walked away with a $2.2 billion profit on his Allergan shares, while Valeant netted around $400 million. Tender Offer Ackman, famous for his public battle with Herbalife Ltd., was able to generate such outsized profits only by "taking advantage of insider information provided by Valeant and acquiring a very significant stake in Allergan ahead of the broader market," according to one plaintiff who said in the lawsuit that he sold his shares before Valeant announced its takeover bid. A similar lawsuit was filed by Allergan, which dropped the case in 2015 after its takeover by Actavis. The shareholder suit hinges on an obscure part of the law. To win, shareholders must prove that Ackman and Valeant were taking "substantial steps" toward a tender offer -- rather than a merger -- before the investor amassed his stake, said Stavros Gadinis, a law professor at the University of California, Berkeley. The law under which the shareholders are suing specifically pertains to trading on material nonpublic information in the context of a tender offer. The defendants argue that a Feb. 25, 2014, relationship agreement between Valeant and Pershing Square made clear that neither party had taken any steps toward a tender offer. Ackman's lawyer, Mark Holscher -- mark.holscher@kirkland.com -- said at a Feb. 14 court hearing in Santa Ana, California, that what the plaintiffs believe is their "smoking gun" on a tender offer is actually a document that shows otherwise. The case is In re: Allergan Inc. Proxy Violation Securities Litigation, 14-cv-02004, U.S. District Court, Central District of California (Santa Ana). [GN] VINCE HOLDINGS: July 5 Lead Plaintiff Motion Deadline Set --------------------------------------------------------- Khang & Khang LLP (the "Firm") on May 8 announced the filing of a class action lawsuit against Vince Holdings Corp. ("Vince" or the "Company") (NYSE: VNCE). Investors who purchased or otherwise acquired shares between December 8, 2016 and April 27, 2017, inclusive (the "Class Period"), are encouraged to contact the Firm in advance of the July 5, 2017 lead plaintiff motion deadline. If you purchased Vince shares during the Class Period, please contact Joon M. Khang, Esquire, of Khang & Khang LLP, 18101 Von Karman Avenue, 3rd Floor, Irvine, CA 92612, by telephone: (949) 419-3834, or by e-mail at joon@khanglaw.com. There has been no class certification in this case yet. Until certification occurs, you are not represented by an attorney. You may choose to take no action and remain a passive class member. The Complaint alleges that during the Class Period, Vince made false and/or misleading statements and/or failed to disclose that during the transition from legacy Kellwood systems, the Company experienced issues related to integrating its new enterprise resource planning systems; and thus, Vince's statements about its business, operations and prospects were materially false and misleading and/or lacked a reasonable basis at all relevant times. When this information was released to the public, Vince shares dropped in value materially, which harmed investors according to the Complaint. If you wish to learn more about this lawsuit, or if you have any questions concerning this notice or your rights, please contact Joon M. Khang, a prominent litigator for almost two decades, by telephone: (949) 419-3834, or by e-mail at joon@khanglaw.com. [GN] WASHINGTON: Settles State Patrol Troopers' Class Action for $15MM ----------------------------------------------------------------- Outten & Golden LLP disclosed that a historic class action settlement was reached between the State of Washington and plaintiffs in a class action lawsuit that will benefit at least 887 Washington State Patrol Troopers and applicants who served in the military but were denied a veterans' preference, lawyers for the troopers from four law firms said on May 8. This settlement, consisting of $13 million in cash and an estimated $2 million worth of retirement benefits, is the largest settlement in the history of the federal veterans' employment rights law, which is known as the Uniformed Services Employment and Reemployment Rights Act (USERRA). This class action challenges the Washington State Patrol's (WSP) failure to give qualified veterans hiring and promotion preference as required by state law, RCW 41.04.010. The plaintiffs who represent the class are current and former troopers Christina Martin, Jason Longoria, Charles Arnold, John Sager, Darrel Nash, Erick Thomas, Darin Foster, and Luis Gonzalez. These troopers and the class are represented by Peter Romer- Friedman of Outten & Golden LLP, and R. Joseph Barton of Block & Leviton LLP, prominent class action employment lawyers based in Washington, D.C.; and the Law Office of Thomas G. Jarrard PLLC, and Crotty & Son Law Firm PLLC, Spokane-based firms that are owned and operated by veterans who focus their practices on assisting veterans and service members. Under the settlement, the State of Washington will pay $13 million dollars to compensate WSP employees and applicants who were denied veterans' preference in the hiring and promotion process. Out of the $13 million, current and former troopers will receive back pay and benefits for the time they were denied employment. Payments also will be made to veterans who applied but were not hired by WSP. Additionally, hiring and seniority dates will be corrected for numerous current and former troopers. Plaintiffs' expert estimates that correcting the seniority dates will increase the collective retirement benefits of current and former troopers by an estimated $2 million. Finally, the WSP has agreed to institute procedures to ensure that the veterans' preference is available at the time of promotion for troopers who are called to military service and return to the WSP. Tina Martin, a lead plaintiff, said, "I am excited about this settlement and I appreciate that the State has corrected this problem. I believe that in the future all veterans' preference points will be properly handled." Thomas G. Jarrard -- tjarrard@att.net -- plaintiffs' counsel and a retired U.S. Marine, said, "These men and women served their country with honor and distinction, so it was an honor for me to serve those veterans in this case." Matthew Z. Crotty -- matt@crottyandson.com -- a veteran, said, "I appreciate the courage that Tina Martin showed in coming forward with this case and inspiring others to do the same. It is not easy to sue your current employer. But Tina Martin, Charles Arnold, Darrel Nash, Luis Gonzalez, Erick Thomas, Jason Longoria, John Sager, and Darin Foster banded together to do just that. Nearly 900 veterans will be better off because of it." Peter Romer-Friedman -- prf@outtengolden.com -- counsel at Outten & Golden LLP, said, "We are excited to announce the largest settlement in the history of USERRA. Federal law prohibits workplace discrimination against veterans. We will not rest until all employers treat our veterans with the respect and dignity they deserve." R. Joseph Barton -- joe@blockesq.com -- a partner at Block & Leviton, said, "I am honored to have represented these veterans in their efforts in obtaining a favorable resolution of these claims on behalf of their fellow veterans. I commend Washington State for resolving these claims and correcting these issues." The case is Tina Martin v. State of Washington, Case No. 2014-02- 000016-7, in the Superior Court of the State of Washington, Spokane County. [GN] WASTE MANAGEMENT: Stony Hollow Landfill Fined Amid Class Action --------------------------------------------------------------- Nick Blizzard, writing for Dayton Daily News, reports that the Ohio EPA has issued a $16,000 fine to a Dayton landfill as one of several orders the site must comply with stemming from odor complaints from several surrounding communities in the past year. The civil penalty, documents show, is among 19 orders the Stony Hollow Landfill must follow in seeking to resolve odor issues that have led to hundreds of complaints from Trotwood to Miami Twp. and several cities in between since April 2016. Operations at the Waste Management Inc.-owned landfill have also led to the city of Dayton barring Stony Hollow from discharging waste into its system, a class-action lawsuit and Montgomery County investigating alternative sites for solid waste disposal. The landfill on South Gettysburg Avenue plans to comply with the guidelines established by the Ohio EPA, according to Waste Management officials. "We agree with these orders and will continue to work closely with the Ohio EPA and other regulators to make sure Stony Hollow Landfill completes all action items on schedule and adheres to the standards outlined in the plan," Waste Management Senior Public Affairs Manager Kathy Trent said via email. [GN] WESTERN UNION: Awaits Final Approval of "Douglas" Case Settlement ----------------------------------------------------------------- The Western Union Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 2, 2017, for the quarterly period ended March 31, 2017, that the parties await final approval of the settlement in the class action lawsuit by Jason Douglas. On March 12, 2014, Jason Douglas filed a purported class action complaint in the United States District Court for the Northern District of Illinois asserting a claim under the Telephone Consumer Protection Act, 47 U.S.C. Sec. 227, et seq., based on allegations that since 2009, the Company has sent text messages to class members' wireless telephones without their consent. During the first quarter of 2015, the Company's insurance carrier and the plaintiff reached an agreement to create an $8.5 million settlement fund that will be used to pay all class member claims, class counsel's fees and the costs of administering the settlement. The agreement has been signed by the parties and, on November 10, 2015, the Court granted preliminary approval to the settlement. The Company accrued an amount equal to the retention under its insurance policy in previous quarters and believes that any amounts in excess of this accrual will be covered by the insurer. However, if the Company's insurer is unable to or refuses to satisfy its obligations under the policy or the parties are unable to reach a definitive agreement or otherwise agree on a resolution, the Company's financial condition, results of operations, and cash flows could be adversely impacted. As the parties have reached an agreement in this matter, the Company believes that the potential for additional loss in excess of amounts already accrued is remote. The Western Union Company is a leader in global money movement and payment services, providing people and businesses with fast, reliable and convenient ways to send money and make payments around the world. WESTERN UNION: "Pincus" Class Action in Preliminary Stage --------------------------------------------------------- The Western Union Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 2, 2017, for the quarterly period ended March 31, 2017, that the class action lawsuit by Caryn Pincus is in a preliminary stage. On February 10, 2015, Caryn Pincus filed a purported class action lawsuit in the United States District Court for the Southern District of Florida against Speedpay, Inc. ("Speedpay"), a subsidiary of the Company, asserting claims based on allegations that Speedpay imposed an unlawful surcharge on credit card transactions and that Speedpay engages in money transmission without a license. The complaint requests certification of a class and two subclasses generally comprised of consumers in Florida who made a payment through Speedpay's bill payment services using a credit card and were charged a surcharge for such payment during the four-year and five-year periods prior to the filing of the complaint through the date of class certification. On April 6, 2015, Speedpay filed a motion to dismiss the complaint. On April 23, 2015, in response to the motion to dismiss, Pincus filed an amended complaint that adds claims (1) under the Florida Civil Remedies for Criminal Practices Act, which authorizes civil remedies for certain criminal conduct; and (2) for violation of the federal Racketeer Influenced and Corrupt Organizations Act ("RICO"). On May 15, 2015, Speedpay filed a motion to dismiss the amended complaint. On October 6, 2015, the Court entered an order denying Speedpay's motion to dismiss. On October 20, 2015, Speedpay filed an answer to the amended complaint. On December 1, 2015, Pincus filed a second amended complaint that revised her factual allegations, but added no new claims. On December 18, 2015, Speedpay filed an answer to the second amended complaint. On May 20, 2016, Speedpay filed a motion for judgment on the pleadings as to Pincus' Florida Civil Remedies for Criminal Practices Act and federal RICO claims. On June 7, 2016, Pincus filed an opposition to Speedpay's motion for judgment on the pleadings. On June 17, 2016, Speedpay filed a reply brief in support of the motion. On October 28, 2016, Pincus filed a motion seeking class certification. The motion seeks the certification of a class consisting of "All (i) persons in Florida (ii) who paid Speedpay, Inc. a fee for using Speedpay, Inc.'s electronic payment services (iii) during the five year period prior to the filing of the complaint in this action through the present." Pincus also filed a motion to file her motion under seal. On November 4, 2016, the Court denied Pincus' motion for class certification without prejudice and motion to seal and ordered her to file a new motion that redacts proprietary and private information. Later that day, Pincus filed a redacted version of the motion. On November 7, 2016, Speedpay filed a motion for summary judgment on Pincus' remaining claims. On December 15, 2016, Speedpay filed an opposition to Pincus' class certification motion. The same day, Pincus filed an opposition to Speedpay's summary judgment motion and requested summary judgment on her individual and class claims. On January 12, 2017, Speedpay filed a reply in support of its summary judgment motion and Pincus filed a reply in support of her class certification motion. On March 28, 2017, the Court granted Speedpay's motion for judgment on the pleadings as to Pincus' Florida Civil Remedies for Criminal Practices Act and federal RICO claims. As this action is in a preliminary stage, the Company is unable to predict the outcome, or the possible loss or range of loss, if any, which could be associated with this action. Speedpay intends to vigorously defend itself in this matter. The Western Union Company is a leader in global money movement and payment services, providing people and businesses with fast, reliable and convenient ways to send money and make payments around the world. WESTERN UNION: Bids to Consolidate 3 Suits Filed ------------------------------------------------ The Western Union Company said in its Form 10-Q Report filed with the Securities and Exchange Commission on May 2, 2017, for the quarterly period ended March 31, 2017, that the plaintiffs in the Martin Herman, Lawrence Henry Smallen and Laura Anne Smallen Revocable Living Trust, and UA Local 13 Pension Fund actions filed motions to consolidate the three cases and to be appointed lead plaintiff. On January 26, 2017, Martin Herman filed a purported class action complaint in the United States District Court for the Central District of California against the Company, its President and Chief Executive Officer, its Chief Financial Officer, and a former executive officer of the Company, asserting claims under sections 10(b) of the Exchange Act and Securities and Exchange Commission rule 10b-5 against all defendants and a claim under section 20(a) of the Exchange Act against the individual defendants. The complaint alleges that, during the purported class period, February 24, 2012 through January 19, 2017, defendants made false or misleading statements or failed to disclose adverse material facts known to them, including those regarding: (1) the effectiveness of the Company's fraud prevention program and the program's compliance with applicable law and best practices; (2) the development and enhancement of the Company's global compliance policies and AML program; and (3) the Company's compliance with regulatory requirements. On March 6, 2017, the defendants filed a motion to transfer venue of the case to the United States District Court for the District of Colorado. The Court granted that motion on March 30, 2017, and transferred the case. This action is in a preliminary stage and the Company is unable to predict the outcome, or the possible loss or range of loss, if any, which could be associated with this action. The Company and the named individuals intend to vigorously defend themselves in this matter. On February 22, 2017, Lawrence Henry Smallen and Laura Anne Smallen Revocable Living Trust filed a purported class action complaint in the United States District Court for the District of Colorado. The defendants, class period, claims and bases are the same as those in the purported class action complaint filed by Martin Herman described above. This action is in a preliminary stage and the Company is unable to predict the outcome, or the possible loss or range of loss, if any, which could be associated with this action. The Company and the named individuals intend to vigorously defend themselves in this matter. On February 22, 2017, UA Local 13 Pension Fund filed a purported class action complaint in the United States District Court for the Middle District of Pennsylvania. The alleged factual bases are similar to and the defendants, class period and claims are the same as those in the purported class action complaints filed by Martin Herman and Lawrence Henry Smallen and Laura Anne Smallen Revocable Living Trust described above, except that the plaintiff's claim under section 20(a) of the Exchange Act is against all of the defendants. On March 10, 2017, the defendants filed an unopposed motion to transfer venue to the United States District Court for the District of Colorado. The Court granted the motion and transferred the case. This action is in a preliminary stage and the Company is unable to predict the outcome, or the possible loss or range of loss, if any, which could be associated with this action. The Company and the named individuals intend to vigorously defend themselves in this matter. On March 27, 2017, plaintiffs in the Martin Herman, Lawrence Henry Smallen and Laura Anne Smallen Revocable Living Trust, and UA Local 13 Pension Fund actions filed motions to consolidate the three cases and to be appointed lead plaintiff. The Western Union Company is a leader in global money movement and payment services, providing people and businesses with fast, reliable and convenient ways to send money and make payments around the world. WHITE OAK: Class of Abattoir Workers Certified in "Taylor" Suit --------------------------------------------------------------- The Hon. Leslie J. Abrams granted in part and denied in part the Plaintiff's renewed motion for conditional certification of collective action and issuance of court-approved notice submitted in the lawsuit titled TRAVIS TAYLOR, on behalf of himself and all others similarly situated v. WHITE OAK PASTURES, INC., Case No. 1:15-cv-00156-LJA (M.D. Ga.). Mr. Taylor alleged violations of the overtime compensation provision of the Fair Labor Standards Act of 1938. Specifically, the Plaintiff alleged that: (1) he was formerly employed as a meat cutter by Defendant from October 2010 through October 2014; (2) he regularly worked in excess of 40 hours each week; and (3) he "was not paid the overtime wage differential." Judge Abrams conditionally certifies a 29 U.S.C. Section 216(b) class of plaintiffs who: (1) are or were employed by Defendant White Oak Pastures, Inc. from April __ 2014 [three years prior to the mailing date of the notice] to April ___ 2017 [the mailing date]; 1 (2) worked in the Red Meat Abattoir or in support of the Red Meat Abattoir, specifically on the kill floor, in the cut room, in the grinding room, in order fulfillment, or on the loading docks of the Red Meat Abattoir; (3) were paid an hourly rate; and (4) worked more than forty hours in a work week without being paid overtime compensation. The Court appoints Travis Taylor as class representative. The Court directs the Defendant to disclose to the Plaintiff the names, last known addresses, and job titles of all potential class members employed by the Defendant during the three years preceding the Order in electronic, importable, and searchable format. The Court approves the Plaintiff's proposed Notice and Opt-in form. The Court also approves a second Notice of the lawsuit to be sent to those potential class members whose notices are returned as undeliverable. The Plaintiff's request to post the Notice at the workplace is denied. A copy of the Order is available at no charge at http://d.classactionreporternewsletter.com/u?f=MaRCWVEM WW GRAINGER: Davies Complaint on TCPA Violations Still Ongoing -------------------------------------------------------------- W.W. Grainger, Inc. continues to face a lawsuit filed by David Davies related to violations of Telephone Consumer Protection Act, according to the Company's Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period ended March 31, 2017. On April 5, 2013, David Davies filed a putative class action lawsuit in the Circuit Court of Cook County, Illinois under the Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Prevention Act of 2005 (the "TCPA"), and sought certification of a class of persons who may have received one or more of approximately 400,000 faxes Grainger sent in connection with a 2009 marketing campaign. The TCPA provides for penalties of US$500 to US$1,500 for each noncompliant individual fax. On May 13, 2013, the Company removed the case to the Federal District Court for the Northern District of Illinois (the "District Court"). On June 27, 2014, the District Court found that Davies was not an adequate class representative. The United States Court of Appeals for the Seventh Circuit denied Davies' petition for immediate review of the ruling. Davies subsequently moved the District Court for reconsideration of its ruling and his motion was denied on September 28, 2016. Davies may seek to pursue an appeal of the ruling at the conclusion of the District Court proceeding. On April 4, 2016, the District Court denied the Company's motion to dismiss Davies' individual claims and subsequently the parties filed cross-motions for summary judgment. The District Court entered judgment for Grainger on Davies' common law claim for conversion while granting partial summary judgment for Grainger on Davies' TCPA claim. On November 21, 2016, the District Court denied Grainger's motion for summary judgment which argued that Davies lacks standing to bring his TCPA claim and held that the issue of whether Grainger's opt-out notice is clear and conspicuous was a contested issue of fact to be resolved by a jury at trial. Trial is currently set for February 5, 2018. Grainger stated, "The Company believes it has strong legal and factual defenses and intends to continue defending itself vigorously in the pending lawsuit. While the Company is unable to predict the outcome of this proceeding, the Company believes that the ultimate outcome of this matter will not have a material adverse effect on the Company's consolidated financial position or results of operations." W.W. Grainger, Inc. distributes maintenance, repair, and operating (MRO) supplies; and other related products and services that are used by businesses and institutions in the United States, Canada, Europe, Asia, and Latin America. It operates through two segments, U.S. and Canada. W.W. Grainger, Inc. was founded in 1927 and is based in Lake Forest, Illinois. * NC General Assembly Enacts Class Action Appeals Amendment ----------------------------------------------------------- Joseph Dowdy, Esq. -- JDowdy@kilpatricktownsend.com -- and Phillip Harris Jr., Esq. -- PHarris@kilpatricktownsend.com -- of Kilpatrick Townsend & Stockton LLP, in an article for JDSupra, wrote that on April 26, 2017, the North Carolina General Assembly overrode a gubernatorial veto to enact N.C. Session Law ch. 2017-7 (formerly HB-239) (the "Act"). The Act arose from a power struggle between the state's democratic governor and its republican legislature regarding who should make judicial appointments. The legislature sought to revoke the governor's longstanding power to fill pre-election judicial vacancies by eliminating seats on the North Carolina Court of Appeals. To prevent opposition from the business community, the legislature included in the Act a potentially beneficial reform of state class action procedural law. The Class Action Appeals Amendment. The Act amends N.C. Gen. Stat. Sec. 7A-27 by adding a new subsection (subsection (a)(4)), which provides: "[an] [a]ppeal lies of right directly to the Supreme Court in any of the following cases: Any trial court's decision regarding class action certification under . . . Rule 23 [of the North Carolina Rules of Civil Procedure]." This short amendment implements at least four significant changes to North Carolina class action practice. First, the Act grants to a class action defendant the right to appeal an order certifying a class. Prior to the Act, a plaintiff could appeal from the denial of class certification, but a defendant could not appeal a grant of class certification. Fisher v. Flue-Cured Tobacco Coop. Stabilization Corp., 794 S.E.2d 699, 705 (N.C. 2016). North Carolina's appellate courts had concluded that, although either ruling was interlocutory, a denial of class certification affected a substantial right "because it determines the action as to the unnamed plaintiffs," whereas the allowance of certification does not. Frost v. Mazda Motor of Am., Inc., 540 S.E.2d 324, 327 (N.C. 2000). Thus, an unsuccessful defendant seeking immediate review had to petition for certiorari in the North Carolina Court of Appeals or otherwise show a substantial right beyond the certification decision itself. Now, plaintiffs and defendants stand on equal footing in terms of their right to appeal an adverse decision. Second, the Act specifies that the direct appeal is directly to the North Carolina Supreme Court. Under prior law, a party appealing from a class certification decision was required to first seek review in the Court of Appeals, pursuant to N.C. Gen. Stat. Secs. 7A-27(b). If the Court of Appeals issued a unanimous decision, that decision generally was subject only to discretionary review in the Supreme Court, and an appeal of right existed only when a Court of Appeals judge issued a dissenting opinion. N.C. Gen. Stat. Secs. 7A-30 & 31. As the Supreme Court seldom granted discretionary review and dissents were somewhat rare, review in the Supreme Court as a practical matter was unlikely. Further, the Supreme Court had the right, but not the obligation, to take an appeal under N.C. Rule of Appellate Procedure 15. Now all class certification decisions will receive a full, direct appeal in the state's highest court. Third, the Act potentially broadens the types of orders that a party can appeal. By its terms the Act applies not only to the denial or allowance of certification, but to "[a]ny trial court's decision regarding class action certification." In most instances, parties probably will limit their appeals to grant and denial orders, but it is plausible that other rulings will give rise to appeals as well, such as an order to strike class action allegations. Fourth, any appeal under the Act will give rise to an automatic stay of proceedings in the trial court. Under North Carolina law, the filing of a notice of appeal divests a trial court of jurisdiction of "all matters embraced within or affected by the order or judgment being appealed." Lowder v. All Star Mills, Inc., 273 S.E.2d 247, 259 (N.C. 1981). Under prior law, a defendant appealing from an adverse certification decision had to persuade the trial court to issue a discretionary stay of further proceedings. See N.C. R. App. P. 8(a) (governing stays on appeal generally). Now, a stay is automatic. As a result of this amendment, North Carolina procedural law now provides greater appellate rights in class action cases than Federal Rule of Civil Procedure 23(f). The federal rule allows a party to seek permission from a circuit court to appeal "an order granting or denying class-action certification," and in federal court, there is no stay of proceedings unless the district court or the appellate court so orders. Key Takeaways. Businesses facing possible class action liability in North Carolina now have enhanced protections under the Act. In negotiating class action settlements, businesses should be mindful that an adverse certification decision in state court may have less weight than it formerly did as a result of the direct right of appeal, at least if the order is vulnerable to attack. In pending cases in which an arguably erroneous class certification order has been entered, the defendant should consider whether to move for decertification or reconsideration, to prompt a ruling that may give rise to a direct appeal to the North Carolina Supreme Court under N.C. Gen. Stat. Sec. 7A- 27(a)(4). In class certification cases presently pending in the North Carolina Court of Appeals, the defendant should consider whether to make a motion to transfer the case to the North Carolina Supreme Court if such a transfer is not otherwise ordered by the Court of Appeals (the Act's impact on existing appeals is unclear). Businesses served with new class action cases should carefully consider whether to remove the cases to federal court or whether the Act's appeal rights make proceeding in state court more desirable. Businesses should consider engaging appellate counsel at the class certification stage to ensure that they have the best chance of obtaining appellate relief if they receive an unfavorable decision. Appeals of North Carolina state court class certification decisions are more economical, given there will no longer be proceedings in the intermediate appellate court, and any litigation in the trial court would be subject to an automatic stay. [GN] ********* 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. 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