/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/171219.mbx C L A S S A C T I O N R E P O R T E R Tuesday, December 19, 2017, Vol. 19, No. 250 Headlines ACORDA THERAPEUTICS: Jan. 17 Lead Plaintiff Motion Deadline Set ADVANCED ANALYTICAL: Korean Tillery Opposes Bid to Transfer Suit ADVANCED MICRO: February 27 Settlement Fairness Hearing Set ALCON LABS: Foley & Lardner Attorney Discusses 3rd Cir. Ruling ALKERMES PLC: Jan. 22 Lead Plaintiff Motion Deadline Set ALLERGAN INC: Faces Antitrust Class Action in Texas AMERADA HESS: Motion to Dismiss Gas Leak Class Action Pending ANGLO AMERICAN: Nears Silicosis Case Out-of-Court Settlement ANTHEM: AMA Mulls Suit Over Planned Physician Reimbursement Cuts ARRAY BIOPHARMA: Jan. 22 Lead Plaintiff Motion Deadline Set ARVEST BANK: 10th Cir. Revives Overdraft Fee Class Action ASSET RECOVERY: Faces "Hudson" Suit in E. Dist. New York AUSTRALIA: Darwin Residents Urged to Join PFAS Class Action AVANGRID INC: Responds to Class Action Over Electric Prices BANANA BOAT: Faces Class Action Over Sunscreen SPF 50+ Claims BANC OF CALIFORNIA: Potential Securities Claims Investigated BARCLAYS PLC: Wants 2d Cir. to Rehear Dark Pool Class Cert. BEAVER COUNTY, PA: Argument to Tackle Issues on Two Statues BLT RESTAURANT: Faces "Martinez" Suit in E.D. New York BMNY CONTRACTING: "Hernandez" Suit Seeks Unpaid Overtime Pay BMW BANK: Auto Finance Company Unable TO Shake TCPA Class Action BRITISH COLUMBIA: To Pay Back $5.5MM in Fees to Methadone Patients BROADSOFT INC: Monteverde & Associates Files Class Action CAFFBENE FRANCHISE: Faces "Young" Suit in S.D. New York CALGON CARBON: Faruqi & Faruqi Files Securities Class Action CANADA: No Date Yet for Class Action Lawyer Disciplinary Hearing CANADA: Strike-Hit College Students Balk at $500 Compensation CENTURYLINK: Overbilling Suits Consolidated Into Class Action COHN RESTAURANT: Faces Class Action Over Bill Surcharges COLLEGE SERVITE: Priest Suspended After Sexual Abuse Class Action DESJARDINS ENTITIES: Quebec Court of Appeal OKs Investor Suit DESJARDINS FINANCIAL: Court Lowers Threshold for Class Action DOCTORS CENTER: Faces "Araujo" Suit in District of New Jersey DOLLAR TREE: Wins Jury Verdict in Electronic Wage Settlement Suit DOLLAR TREE: Sheppard Mullin Attorneys Discuss Court Ruling EQUIFAX INC: Faces New Class Action Over Data Breach in Atlanta EQUIFAX INC: Hit with Suit by Windsor County Woman ERIN ENERGY: Obtains Favorable Ruling in Stockholders' Suit FORD MOTOR: WeirFoulds Discusses Ruling on Motion to Intervene FRANKLIN COUNTY, PA: Sheriff Dropped from Privacy Class Action FREDERIC I WEINBERG: Faces "Bouie" Suit in E. Dist. Penn. GIGAMON INC: Mur Files Suit Over Onerous Merger Deal GOLDEN STATE: Judge Denies Motion to Dismiss Privacy Class Action GOOGLE INC: Disputes Ex-Female Workers' Pay Discrimination Claims HANOVER GREEK: "Montes" Seeks Overtime, Spread-of-Hours Pay, Tips HOT SPRINGS, AR: Faces Class Action Over False Alarm Ordinance HSBC: Slammed for Failing to Flag Ponzi Schemer HULU: Faces Class Action in Massachusetts Over ADA Violation IEI PLASTICS: Faces Class Actions Over Parkersburg Fire INDIANA: Faces Class Action Over Illegal Trucking Fees IXYS CORP: Monteverde & Associates Files Securities Class Action KISLING NESTICO: Judge Recuses Herself in Class Action LITTLE ROCK, AR: Lawsuit Calls Rental Checks Unlawful LOUISIANA: Judge Recommends Dismissing Illegal Arrests Case LUMBER LIQUIDATORS: Plaintiffs' Attorneys Object to Settlement MAPLEBEAR INC: Set to Finalize OT Case Settlement in January 2018 MASSACHUSETTS: Contractors Suing State Over Full-Time Status MASTERCARD: Class Action Over Credit, Debit Card Fees Pending MCM PRODUCTS: Faces "Matzura" Suit in S.D. New York MGM RESORTS: Faces Negligence Cases Over Las Vegas Mass Shooting MGM RESORTS: New Lawsuits Filed Over Las Vegas Attack MICHAEL FOODS: Judge Approves $75MM Egg Antitrust Settlement MORRIS COLLEGE: Faces Class Action Over "Toxic" Mold MYER: Class Action Law Firms Mull Investor Suit NEW MOOSEJAW: Sued Over Wiretapping Activities NEW YORK: NYPD Faces Promotion Discrimination Class Action NEW YORK: Mayor Dead Wrong on 'No Harm' to Kids Exposed to Lead NEWFIT DALLAS: "Robinson" Suit Seeks Unpaid Overtime Wages NFL: Concussion Settlement Test of Judicial Power NRC HEALTH: Faces Class Actions Over Class B Stock Shares Buyback OCERA THERAPEUTICS: "Paulus" Sues Over Onerous Merger Deal OVASCIENCE INC: Scott+Scott Files Securities Class Action OXNARD, CA: Sued Over Illegal Special Education System PALATINE, IL: Ballard Spahr Attorney Discusses Ruling PARAGON COMMERCIAL: Franchi Files Suit Over Sale to Townebank PENNSYLVANIA: Justices Drop Sheriff from Concealed Weapon Lawsuit POWERSECURE INT'L: Securities Class Action Dismissal Affirmed PTTEP AUSTRALASIA: Seaweed Farmers' Class Action Given Go-Ahead QUDIAN: Investor Class Action Mulled Over Stock Price Drop RECEIVABLE COLLECTION: Faces "Daniels" Suit in E.D. New York REGENT CATERING: "Peralta" Suit Seeks OT, Spread-of-Hours Pay RUBY TUESDAY: Monteverde & Associates Files Class Action SAC CAPITAL: Reed Smith Loses Bid to Sue Co-Counsel Over Fees SCANA CORP: Bernstein Litowitz Files Securities Class Action SIGNATURE HEALTHCARE: "Hosein" Suit Seeks Overtime Pay, Damages SNAP INC: Judge May Send Class Action Back to State Court SONIC CORP: Faces "Dolembo" Suit in Northern District of Ohio SOUTH AFRICA: DHET Faces Class Action Over Certificates Backlog TENNESSEE: Sued for Suspending Licenses for Unpaid Court Debt TEXAS: Burns Charest Lawyers to Lead Hurricane Harvey Claims TEZOS: Hagens Berman Investigates Initial Coin Offering TRIANGLE CAPITAL: Gainey McKenna Files Securities Class Action TRIANGLE CAPITAL: Robbins Geller Files Class Action in New York TURZA: Baker & Hostetler Discusses 7th Cir. Ruling UBER TECHNOLOGIES: Seeks Dismissal of Pricing Model Class Action UBER TECHNOLOGIES: Paid Hackers to Delete Stone Customer Data UBER TECHNOLOGIES: Puts Profits Over Female Passenger Safety UBER TECHNOLOGIES: Five States to Investigate 2016 Data Breach UBER TECHNOLOGIES: Customer to Arbitrate Price-Fixing Claims UGL: Investor Class Action Over Ichthys Disclosure Can Proceed VODACOM: Faces Class Action Over "Disappearing Airtime" WEYERHAEUSER CO: Faces Class Action Suit Over Floor Joists WILBUR-ELLIS: Faces "Cisneros" Suit in California Super Court WILLIS TOWERS: Bernstein Litowitz Files Securities Class Action WOODFORD TRANSPORTATION Settlement Obtains Preliminary Approval ZWICKER & ASSOCIATES: Faces "Murdolo" Suit in E.D. of New York * Beer Manufacturers Face False Labeling Class Actions * Data Breach Class Action Settlements Getting Bigger * Number of CPLR Article 9 Class Actions Increases in New York * Saudi Arabian CMA Board Approves Class Action Regulations * Senate Votes to Nullify CFPB's Arbitration Rule ********* ACORDA THERAPEUTICS: Jan. 17 Lead Plaintiff Motion Deadline Set --------------------------------------------------------------- Bronstein, Gewirtz & Grossman, LLC, notified investors that a class action lawsuit has been filed against Acorda Therapeutics, Inc. ("Acorda" or the "Company") (NASDAQ: ACOR) and certain of its officers, on behalf of a class who purchased Acorda securities between April 18, 2016, and November 14, 2017, inclusive (the "Class Period"). Such investors are encouraged to join this case by visiting the firm's site: www.bgandg.com/acor. This class action seeks to recover damages against Defendants for alleged violations of the federal securities laws. Acorda is a biotechnology company with a focus on the identification, development, and commercialization of therapies for neurological disorders. On January 19, 2016, Acorda announced an agreement to acquire Biotie Therapies Corporation ("Biotie") for approximately $363 million (the "Biotie Acquisition"). In its press release announcing the Biotie Acquisition, Acorda advised investors, inter alia, that the Company "will obtain worldwide rights to tozadenant, an oral adenosine A2a receptor antagonist currently in Phase 3 development in Parkinson's disease (PD)." On April 18, 2016, Acorda acquired approximately 93% of the fully diluted capital stock of Biotie. In September 2016, Acorda completed the Biotie Acquisition. The Complaint alleges that throughout the Class Period, Defendants made materially false and misleading statements and/or failed to disclose that: (1) tozadenant entailed significant undisclosed safety risks; (2) accordingly, the Company had overstated tozadenant's approval prospects and commercial viability; (3) for the foregoing reasons, the Company had likewise overstated the benefits of the Biotie Acquisition; and (4) consequently, Acorda's shares traded at artificially inflated prices during the Class Period. On November 15, 2017, Acorda disclosed the deaths of several patients in the Company's final-stage studies of tozadenant. Acorda advised investors that it had paused new enrollment in the drug's long-term safety studies, pending further discussion with the independent Data Safety Monitoring Board and the U.S. Food and Drug Administration. Following this news, Acorda stock dropped $11.20 per share, or 39.72%, to close at $17.00 on November 15, 2017. A class action lawsuit has already been filed. If you wish to review a copy of the Complaint you can visit the firm's site: www.bgandg.com/acor or you may contact Peretz Bronstein, Esq. or his Investor Relations Analyst, Yael Hurwitz of Bronstein, Gewirtz & Grossman, LLC at 212-697-6484. If you suffered a loss in Acorda you have until January 17, 2018 to request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. Bronstein, Gewirtz & Grossman, LLC is a corporate litigation boutique. Its primary expertise is the aggressive pursuit of litigation claims on behalf of our clients. In addition to representing institutions and other investor plaintiffs in class action security litigation, the firm's expertise includes general corporate and commercial litigation, as well as securities arbitration. [GN] ADVANCED ANALYTICAL: Korean Tillery Opposes Bid to Transfer Suit ---------------------------------------------------------------- Heather Isringhausen Gvillo, writing for Madison - St. Clair Record, reports that in its response to Advanced Analytical's motion to dismiss or transfer, Korein Tillery argues that a forum clause written into a contract with the research contractor and two economists is voidable due to fraud in a suit involving a minor league baseball class action. In its complaint Korein Tillery argues that the defendants were hired to estimate the work hours of minor league baseball players and calculate their wage and hour damages by observing players entering and leaving their ballparks. The data was intended to be used in a class action wage dispute involving minor league baseball players. However, the plaintiff alleges that five weeks before the expert disclosure deadline, and after costing nearly $500,000, the defendants admitted that they were unable to determine between baseball players and other employees entering the ballparks. Defendants Advanced Analytical Consulting Group Inc., Daniel Levy and Audrius Girnius filed a motion to dismiss the complaint on Oct. 11 through attorney W. Jason Rankin -- jrankin@heplerbroom.com -- of HeplerBroom LLC in Edwardsville. Mr. Rankin argues that the parties agreed to a binding enforceable forum selection clause within the contract, which states that any action arising under the contract must be brought in a federal court or any Massachusetts court. After the case was originally filed in St. Clair County Circuit Court in March, it was removed to federal court on May 4 and then remanded to circuit court on Sept. 12. The defendants also argue that they were dealing with Korein Tillery attorneys from the St. Louis office and were unaware of the actions in St. Clair County. Citing the recent Bristol-Myers Squibb and Aspen decisions, Rankin also wrote that the court does not have jurisdiction over the defendants. Korein Tillery filed a response to the defendants' motion to dismiss on Oct. 23, through attorney Robert Sprague of Sprague and Urban in Belleville. "After one failed attempt to avoid this Court's jurisdiction by improperly removing the case to federal court, now they want it transferred or dismissed based on their claim they had no idea they were dealing with an Illinois law firm and the untimely assertion of a boilerplate forum selection clause that was obtained by their fraud," the response states. Recognizing the forum clause, Korein Tillery argues that the objections to venue were raised too late and the contract was "induced by Defendants' fraud." "Having held themselves out as experts in this field, Defendants knew or should have known that they could not perform as promised. This is a classic case of fraud in the inducement," the response states. "Accordingly, the contract is voidable and Defendants cannot enforce any part of it, including the forum selection clause," it adds. Korein Tillery also argues that the court has personal jurisdiction over all of the defendants. Girnius and Korein Tillery are Illinois residents, and Advanced Analytical and Levy's contacts with Illinois relate directly to the allegations of the complaint. Korein Tillery adds that the complaint adequately states all claims. It argues that the defendants made false statements in reckless disregard of the truth by repeatedly misrepresenting that they could perform the requested study. Further, Korein Tillery claims it adequately made claims for breach of contract and negligence because the defendants failed to complete the study after the plaintiff paid "very large" sums of money. "No expert acting in a prudent manner would continue to bill large sums of money while performing a study that the expert knew could not be performed as promised and without alerting the client to the fact that the study could not be performed," the response states. "Yet that is exactly what Defendants did to Korein Tillery." Korein Tillery also filed a separate response to the defendants' motion to transfer venue on Oct. 23. The firm argues that the defendants "failed to meet their burden to show St. Clair County is an improper venue for the parties' dispute, and they waived their objection to venue by failing to timely raise it." However, if the court intends to grant the motion to transfer, the plaintiff requests discovery prior to transferring the case "in order to develop a factual record on the venue issue." Korein Tillery argues that St. Clair County is the proper venue because negotiations and discussions as well as signing the agreement all took place there. "And these are the very facts that gave rise to Korein Tillery's asserted cause of action," the response states. As for the defendants' assertion that they were unaware that any of the actions took place in St. Clair County, the plaintiff says "it is no secret" where its offices are located and "any doubts should be resolved in favor of Korein Tillery." Korein Tillery also argues that the motion to transfer was filed almost a month late, waiving their objection. On Oct. 31, Circuit Judge Vincent Lopinot continued the defendants' motions. Associate Judge Chris Kolker previously presided over the case before it was reassigned to Lopinot on Oct. 17. St. Clair County Circuit Court case number 17-L-98 [GN] ADVANCED MICRO: February 27 Settlement Fairness Hearing Set ----------------------------------------------------------- TO: ALL PERSONS AND ENTITIES THAT, DURING THE PERIOD FROM APRIL 4, 2011 THROUGH OCTOBER 18, 2012, INCLUSIVE, PURCHASED OR OTHERWISE ACQUIRED THE PUBLICLY TRADED COMMON STOCK OF ADVANCED MICRO DEVICES, INC. YOU ARE HEREBY NOTIFIED, pursuant to an Order of the United States District Court for the Northern District of California, that Class Representatives Arkansas Teacher Retirement System and KBC Asset Management NV, on behalf of themselves and the certified Class, and Advanced Micro Devices, Inc., and the other named defendants (collectively, the "Defendants"), have reached a settlement in the above-captioned action (the "Action") in the amount of $29,500,000 in cash (the "Settlement Amount") that, if approved by the Court, will resolve all claims in the Action.1 A hearing will be held before the Honorable Yvonne Gonzalez Rogers of the United States District Court for the Northern District of California in Courtroom 1, Oakland Courthouse, 4th Floor, 1301 Clay Street, Oakland, CA 94612 at 2:00 p.m. on February 27, 2018 to, among other things, determine whether (1) the Settlement should be approved by the Court as fair, reasonable, and adequate; (2) the Plan of Allocation for distribution of the Settlement Amount, and any interest thereon, less Court-awarded attorneys' fees, Notice and Administration Expenses, Taxes, and any other costs, fees, or expenses approved by the Court (the "Net Settlement Fund") should be approved as fair, reasonable, and adequate; and (3) the application of Class Counsel for an award of attorneys' fees of no more than 30% of the Settlement Fund (or up to $8,850,000) and payment of expenses of no more than $3,000,000 from the Settlement Fund, which may include the expenses of Class Representatives pursuant to the Private Securities Litigation Reform Act of 1995, should be approved. The Court may change the date of the Settlement Hearing without providing another notice. You do NOT need to attend the Settlement Hearing in order to receive a distribution from the Net Settlement Fund. IF YOU ARE A MEMBER OF THE CLASS, YOUR RIGHTS WILL BE AFFECTED BY THE SETTLEMENT AND YOU MAY BE ENTITLED TO SHARE IN THE NET SETTLEMENT FUND. If you have not yet received the full Notice of Proposed Class Action Settlement and Motion for Attorneys' Fees and Expenses (the "Settlement Notice") and a Proof of Claim and Release form ("Claim Form"), you may obtain copies of these documents by contacting the Claims Administrator or visiting its website: Advanced Micro Devices, Inc. Securities Litigation Claims Administrator c/o Epiq Systems, Inc. P.O. Box 4349 Portland, OR 97208-4349 (844) 855-8569 info@AMDSecuritiesLitigation.com www.AMDSecuritiesLitigation.com Inquiries may also be made to Class Counsel: LABATON SUCHAROW LLP Jonathan Gardner, Esq. 140 Broadway New York, NY 10005 (888) 219-6877 www.labaton.com settlementquestions@labaton.com -or- MOTLEY RICE LLC James M. Hughes, Esq. 28 Bridgeside Blvd. Mt. Pleasant, SC 29464 (800) 768-4026 www.motleyrice.com If you are a Class Member, to be eligible to share in the distribution of the Net Settlement Fund, you must submit a Claim Form postmarked or electronically submitted no later than February 13, 2018. If you are a Class Member and do not timely submit a valid Claim Form, you will not be eligible to share in the distribution of the Net Settlement Fund, but you will nevertheless be bound by any judgments or orders entered by the Court in the Action. If you previously submitted a valid and timely request for exclusion from the Class in connection with the Notice of Pendency of Class Action ("Class Notice") and you wish to remain excluded, no further action is required. However if you did not, to exclude yourself from the Class now, you must submit a written request for exclusion in accordance with the instructions set forth in the Settlement Notice such that it is postmarked no later than February 6, 2018. If you are a Class Member and do not exclude yourself from the Class, you will be bound by any judgments or orders entered by the Court in the Action. If you previously submitted a request for exclusion from the Class in connection with the Class Notice but you want to opt-back into the Class now for the purpose of being eligible to receive a payment from the Net Settlement Fund, you may do so. In order to opt-back into the Class, you must submit a request in writing such that it is postmarked no later than February 6, 2018, in accordance with the instructions set forth in the Settlement Notice. Any objections to the Settlement, Plan of Allocation, and/or application for attorneys' fees and payment of expenses must be filed with the Court and mailed to counsel in accordance with the instructions set forth in the Settlement Notice such that they are postmarked no later than February 6, 2018. PLEASE DO NOT CONTACT THE COURT, DEFENDANTS, OR DEFENDANTS' COUNSEL REGARDING THIS NOTICE. ALL QUESTIONS ABOUT THIS NOTICE, THE SETTLEMENT, OR YOUR ELIGIBILITY TO PARTICIPATE IN THE SETTLEMENT SHOULD BE DIRECTED TO THE CLAIMS ADMINISTRATOR AT THE ADDRESS LISTED ABOVE. 1 The complete terms of the Settlement are in the Stipulation and Agreement of Settlement, dated October 9, 2017, which can be viewed at www.AMDSecuritiesLitigation.com. Dated: November 20, 2017 BY ORDER OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA [GN] ALCON LABS: Foley & Lardner Attorney Discusses 3rd Cir. Ruling -------------------------------------------------------------- Aaron R. Wegrzyn, Esq. -- awegrzyn@foley.com -- of Foley & Lardner LLP, in an article for The National Law Review, wrote that the Third Circuit issued a 2-1 decision in Cottrell v. Alcon Labs., reversing a district court's dismissal of a class action lawsuit on standing grounds. The putative class in Cottrell is comprised of consumers of prescription eye droplet medication used to treat glaucoma. In their complaint, the named plaintiffs allege that the manufacturers and distributors of the droplets engaged in unfair trade practices -- as prohibited by state consumer protection statutes -- by selling them in dispensers that discharge the medicine in doses that are too large (i.e., the bottle's dropper squirts out 15mL when an average consumer allegedly only requires 7mL). In its decision below, the district court granted the defendants' motion to dismiss on the grounds that the named plaintiffs lacked Article III standing, reasoning that the plaintiffs' theory of injury rested on speculation about hypothetical alternatives and generalized disagreements about dispenser design. However, the Third Circuit saw things differently, ruling that the named plaintiffs alleged a sufficient injury by claiming that the defendants caused them to waste money on medication that was effectively impossible for them to use. In its opinion, the court broadly interpreted the Supreme Court's phrase "invasion of a legally protected interest," to hold that any allegation of financial or economic injury -- regardless how hypothetical or speculative -- suffices for purposes of Article III. The appellate court stressed that the named plaintiffs had brought suit pursuant to state consumer protection statutes that prohibit "unfair" business practices in rejecting the argument that the complaint merely expressed "dissatisfaction" with available products. The Third Circuit chided the lower court's decision for improperly blending the merits issue of the validity of the named plaintiffs' claim with the jurisdictional issue of whether they possessed Article III standing to sue in federal court. In doing so, the Cottrell Court found the named plaintiffs' allegations that a better-designed droplet dispenser would have saved them money to be non-speculative and to have stated a concrete and particularized injury. Perhaps most interesting was that the Third Circuit consciously decided to split with the Seventh Circuit, which had ruled on the same issue in a nearly-identical case, called Eike v. Allergan, Inc., just six months earlier. In his short opinion in Eike, Judge Posner focused on the fact that the plaintiffs had not alleged any type of deception or misrepresentation on the defendants' part and the market pricing "assumptions" built into the plaintiffs' allegations of injury. But in the Third Circuit's estimation, the Eike decision failed to account for the fact that the alleged misconduct related to an entirely separate category of illegal business practices from fraudulent, deceptive, or misleading practices -- "unfair" business practices. More fundamentally, the Third Circuit stated that Judge Posner got the entire analysis backward for purposes of standing, beginning with his assessment of whether the plaintiffs had a cognizable claim as opposed to whether they alleged a cognizable injury. Yet, in maintaining its bright line between standing and merits issues, the Third Circuit's decision appears to overlook the plausibility of the alleged injury, such as whether it is plausible that an allegedly sub-optimal product design causes a plaintiff a concrete financial or economic injury. Judge Roth picked up this point in his dissent from the panel decision, characterizing the named plaintiffs' complaint as mere allegations about what the defendants might be able to do (i.e., design a better dispenser), rather than about any affirmative wrong they actually had done. His dissenting opinion also criticized the named plaintiffs' argument as speculative to the extent that its allegations of harm were premised on the assumption that no other aspect of product pricing would change after the dispenser was redesigned. Finally, Judge Roth expressed his concern that the pharmaceutical market was a particularly bad fit for this type of claim, given the regulatory approval necessary for any product redesign. The Cottrell case is a notable illustration of the division among the federal judiciary regarding the type of consumer harms that suffice for Article III standing purposes, even at the court of appeals level. Where some judges see speculation and assumptions about hypothetical alternative products and markets, others see allegations of a concrete and particularized financial loss in the form of a poorly-designed product. The Third Circuit's panel decision in Cottrell is concerning to the extent that it could be interpreted as holding that a consumer possesses federal standing to sue for unfair business practices whenever he or she alleges that a manufacturer's current product design is sub-optimal, which would appear to open the gates to a flood of class action litigation. The defendants in Cottrell filed a petition for rehearing en banc. [GN] ALKERMES PLC: Jan. 22 Lead Plaintiff Motion Deadline Set -------------------------------------------------------- Pomerantz LLP disclosed that a class action lawsuit has been filed against Alkermes plc ("Alkermes" or the "Company") (NASDAQ:ALKS) and certain of its officers. The class action, filed in United States District Court, for the Southern District of New York, and docketed under 17-cv-09178, is on behalf of a class consisting of investors who purchased or otherwise acquired Alkermes securities, seeking to recover compensable damages caused by defendants' violations of the Securities Exchange Act of 1934. If you are a shareholder who purchased Alkermes securities between February 24, 2015, and November 3, 2017, both dates inclusive, you have until January 22, 2018, 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 amount of shares purchased. Alkermes plc is a biopharmaceutical company focused on the development of treatments for central nervous system disorders such as addiction, schizophrenia, depression and diabetes. The Company's marketed products include Vivitrol (naltrexone for extended-release injectable suspension), a treatment for alcohol and opioid dependence. The 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) Alkermes systemically engaged in deceptive marketing campaigns to influence policymakers to use Vivitrol in addiction treatment programs over more scientifically proven and efficacious alternatives; (ii) the foregoing conduct, when disclosed, would foreseeably subject Alkermes to heightened regulatory and legislative scrutiny; (iii) accordingly, the Company's revenues derived from Vivitrol during the Class Period were unsustainable; and (iv) as a result of the foregoing, Alkermes shares traded at artificially inflated prices during the Class Period, and class members suffered significant losses and damages. On June 11, 2017, The New York Times published an article entitled "Seizing On Opioid Crisis, a Drug Maker Lobbies Hard for its Product." The article described Alkermes' aggressive efforts to market Vivitrol while denigrating the efficacy of other addiction treatments. On this news, Alkermes' share price fell $2.19, or 3.55%, to close at $59.47 on June 12, 2017. On November 6, 2017, U.S. Senator Kamala Harris announced the opening of an investigation into Alkermes' sales practices for Vivitrol. Senator Harris specifically stated that the Company "aggressively marketed" its medication, convincing judges and prison officials to use it rather than more proven addiction- treatment products, and spent hundreds of thousands of dollars lobbying policymakers. According to Harris, Alkermes promoted Vivitrol by using a "speaker's bureau composed of doctors paid to promote the drug." On this news, Alkermes' share price fell $2.23, or 4.37%, to close at $48.76 on November 6, 2017. 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] ALLERGAN INC: Faces Antitrust Class Action in Texas --------------------------------------------------- Dani Kass, writing for Law360, reports that a proposed class of Restasis buyers on Nov. 17 accused Allergan Inc. in Texas federal court of blocking low-cost generics for the dry-eye medication through improperly obtained patents, sham infringement suits and citizen petitions, and partnering with a Native American tribe to avoid patent challenges. The direct purchasers, led by FWK Holdings LLC, say if Allergan hadn't been allegedly gaming the system, there would have been generic drugs, which could have been purchased at a fraction of the cost, on the market as early as May 2014. Instead, Allergan has hurt consumers using a multifaceted approach to keep generics off the market, while making $3.9 billion off the drug over the last three years alone, the Sherman Act suit states. Much of the alleged misconduct stems from Allergan allegedly securing patents it knew were likely to be invalidated as obvious. Multiple generic-drug makers had already filed abbreviated new drug applications at the U.S. Food and Drug Administration when Allergan pushed for the first of those second-round patents. This slowed down the generics process, the suit says. At first, the generic-drug makers only had to file paragraph II or paragraph III certifications in their ANDAs, saying that they wouldn't infringe any patents because they wouldn't market any generics before the relevant patents expired in May 2014. When Allergan submitted its "eleventh-hour patent application," the generics companies had to file a paragraph IV certification, saying the drugs wouldn't infringe patents because the patents are invalid or unenforceable, the suit says. The latter certification opens generic-drug makers up to patent infringement litigation, which, when filed, leads to an automatic 30-month stay on ANDA approval. "Allergan filed those suits not to vindicate any legitimate patent infringement issues but to improperly use governmental process and the workings of the Hatch-Waxman act to delay generic competition to its Restasis monopoly," the complaint states. "If it filed even the most baseless of patent infringement suits, Allergan knew it would still obtain and immediately benefit from the automatic 30-month stay of FDA final approval of any generic Restasis product. For a $1.5 billion [per] year franchise, every extra month Allergan could postpone competition from generic Restasis added another $125 million to its revenues!" Allergan then filed citizen petitions debating how to properly test for bioequivalence, with the drugmaker arguing that the generics companies had to test the product on humans, instead of in a lab. The only result of the petitions was further delay, the suit says. Even though at least nine companies have filed ANDAs so far, no generics have come to market, in part because of the "resource drain, confusion and administrative delays" stemming from Allergan's conduct, the potential class said. The alleged issues culminate in Allergan's highly controversial decision to transfer its patents to the Saint Regis Mohawk Tribe and have the tribe license them back to Allergan. The tribe is immune from inter parties reviews at the Patent Trial and Appeal Board, and Allergan claims it now is, too. The potential class claims that Allergan has made it clear that the company had "subjective bad faith" in trying to avoid PTAB challenges and that the tribe had no reason to enter into such a deal beyond money, as it has shown no interested in pharmaceuticals before. "No objectively reasonable litigant could expect these shenanigans before PTAB to succeed," the complaint states. "Multiple cases have rejected similar schemes to game the law, including in the context of sovereign tribes where the only interest the tribe had was in being paid for the cover of immunity." In another suit in the same court, Senior U.S. Circuit Judge William Bryson invalidated some of the patent claims right after questioning whether the deal was a sham. In a related suit before PTAB, the tribe said the deal is legal, adding that there's been no "coherent legal theory" explaining otherwise, with generic drugmakers pointing to news stories to support their argument rather than the law. An Allergan representative didn't immediately respond to a request for comment on Nov. 20. "We hope to move the case along with reasonable dispatch in order to ensure a fair, prompt and successful result," plaintiff attorney Thomas M. Sobol of Hagens Berman Sobol Shapiro LLP said in an email. FWK Holdings is represented by S. Calvin Capshaw -- ccapshaw@capshawlaw.com -- and Elizabeth L. DeRieux -- ederieux@capshawlaw.com -- of Capshaw DeRieux LLP, Thomas M. Sobol and Kristen A. Johnson of Hagens Berman Sobol Shapiro LLP, Joseph M. Vanek and David P. Germaine of Vanek Vickers & Masini PC, Robert N. Kaplan and Matthew P. McCahill -- mmccahill@kaplanfox.com -- of Kaplan Fox & Kilsheimer LLP and John D. Radice and A. Luke Smith of Radice Law Firm PC. Counsel information for Allergan was not immediately available. The case is FWK Holdings, LLC v. Allergan, Inc., Case No. 2:17-cv- 00747 (E.D. Tex.). The case is assigned to Judge Rodney Gilstrap. The case was filed November 17, 2017. [GN] AMERADA HESS: Motion to Dismiss Gas Leak Class Action Pending ------------------------------------------------------------- Steve Whitmore, writing for SentinelSource.com, reports that a state representative is moving forward for a second time with legislation seeking to reduce the amount of a known carcinogen allowed in drinking water. The effort is a personal one for James W. McConnell, R-Swanzey, as he and others believe methyl tertiary butyl ether (MTBE), causes cancer and even death in the town's west and Westport villages. More than 20 residents and former residents of those villages have joined a class-action lawsuit seeking damages for what they say are illnesses and cancers linked to a gasoline leak at a nearby gas station decades ago. The leak caused MTBE to contaminate private wells in the area. The lawsuit lists several individuals and businesses, including petroleum corporations, as plaintiffs. Mr. McConnell's bill would reduce the amount of MTBE allowed in public water systems from 13 micrograms per liter to 0.5 micrograms per liter. MTBE, or MtBE, is a flammable and colorless liquid that was used as an additive in gasoline starting in 1979. The carcinogen was banned from being used in gasoline in New Hampshire in 2007. "Zero (micrograms) is what my constituents want," Mr. McConnell said. "But I'm trying to be practical. Our goal is to make progress." Mr. McConnell introduced legislation in 2015 that would have reduced the level to zero, but it never got out of committee, he said. This time, he said, he was going to put forth legislation that will pass. "This is going to make a difference and that's what's important," Mr. McConnell said. The bill will be assigned a committee in January, and if passed by the Legislature and signed into law, would go into effect July 1, 2018, according to James E. Rivers, director of communications for the N.H. House of Representatives. The bill's co-sponsor is Rep. Mindi Messmer, D-Rye. Although Mr. McConnell's bill is being applauded by many, at least one area resident says it's not enough. Patrick D. Short of West Swanzey has been fighting to eliminate MTBE contamination since 2011 to no avail, he said. Short is part of the class-action lawsuit filed in Cheshire County Superior Court in April 2016. The lawsuit alleges that seven major oil and chemical companies, along with current and previous owners of the Route 10 Mini-Mart at 968 West Swanzey Road, are liable for the water contamination. Mr. Short said he has documented more than 60 cases of cancer among people who live near the station. And he said there's a series of houses next to each other on the same side of the street whose occupants have gotten cancer. Mr. Short's father, Kenneth, died of non-small cell lung cancer in 2007. State health officials have looked into the matter, concluding in 2014 that "a further in-depth community level (cancer) cluster investigation is not warranted at this time." MTBE was in gasoline that leaked from underground storage tanks at the station more than two decades ago. The gas station and the convenience store are still in operation, Mr. Short said, and the tanks are no longer leaking. "But what about the groundwater?" Mr. Short asked. "It's still in the groundwater. I don't drink any of the water. I have a 5- year-old granddaughter, and she can't drink any of the water either." Mr. Short said he lives across the street from the Route 10 Mini- Mart, and drives about 17 miles, twice, every day to retrieve water for his family's use. "Don't get me wrong, I'm grateful for what McConnell is doing," Mr. Short said. "He's the voice behind all of this. He's working hard for us. I just want out. I've had enough. I want to be paid a fair price for my home, and I want out. My neighbors do too." The contaminated water has caused nearby property values to drop, and has caused severe health problems, including cancer, rashes, tumors and autism among people and animals who live or have lived in the area, the lawsuit alleges. A motion to dismiss the lawsuit is pending, according to Peter McGrath, the attorney handling the class-action lawsuit, which has 22 plaintiffs. Mr. McGrath, a former federal prosecutor, said the defendants are asking the judge to dismiss the case on a technicality. "They say we didn't file on time" Mr. McGrath said. "I don't think they will prevail, but it's a lot of lawyering right now. There are people that have died. This is a tragic story." The defendants named in the suit are Amerada Hess Corp.; ChevronTexaco Corp.; Chevron U.S.A. Inc.; Citgo Petroleum Corp.; ConocoPhillips Co.; Exxon Mobile Corp; Shri Ganech Corp. c/o Dharnem Patel; Faham and Shagugta Effendi; Joseph Hart; Richard Cartier; Peterborough Oil Co. Inc.; and Lyondell Chemical Co. "It wouldn't go in front of a jury for at least another year," he said. Mr. McGrath applauded McConnell's legislation, saying it's the right thing to do, and long overdue. "He's doing right by his constituents," Mr. McGrath said. "It won't affect the case, obviously, but he is doing the right thing." The Route 10 Mini-Mart was subject to an MTBE cleanup after gasoline was found in two catch basins near the property in 1990. Cleanup of the site included removing 440 tons of contaminated soil around the gas station. According to the N.H. Department of Environmental Services, 13 micrograms per liter of MTBE is a safe level "for ingestion exposure at an excess lifetime cancer risk of one in one million." Since then, the state tests 10 private wells twice a year in April and October, according to James P. Martin, spokesman for the N.H. Department of Environmental Services. In October, Short's private well tested 0.55 micrograms of MTBE per liter, well below the 13 micrograms per liter, Martin said. Mr. Martin said he was unaware of the legislation introduced by McConnell. "We need to talk with the people that are putting forth the legislation and have a dialogue to see if it's the right standard," Mr. Martin said. [GN] ANGLO AMERICAN: Nears Silicosis Case Out-of-Court Settlement ------------------------------------------------------------ Wendell Roelf, writing for Reuters, reports that lawyers acting for thousands of gold miners who contracted lung diseases at work in South African mines said on Nov. 22 an out-of-court settlement with their employers could be reached by December. A High Court ruling last year set the stage for protracted proceedings on cases dating back decades in the largest class action suit yet in Africa's most industrialised country. Many of the nearly half a million miners who contracted silicosis and tuberculosis, are from nearby countries who supplied labour to South African mines. Gold miners are appealing against that ruling while at the same time six of the firms, including Anglo American, AngloGold Ashanti, Sibanye and Harmony, are holding settlement talks with the workers. Richard Spoor and Charles Abrahams, lawyers for the workers, told parliament's mineral resources committee that significant progress had been made in those discussions. "The parties are reasonably confident that a settlement will be achieved in the course of this year," they said. In a separate presentation made later to the committee, the Working Group on Occupational Lung Disease which represents the six gold mining firms, said provision for a pre-tax nominal total of around 5 billion rand ($361 million) has been made. "Settlement will include not only amounts to be paid to claimants, but also ensuring as many as possible eligible claimants are located and adequate financial provision for administration of a trust," the mining firms said. Mr. Spoor said about half the number of afflicted miners had died since the legal process began a decade ago and that the longer the remainder wait for a settlement, the more would die. The suit, which has little precedent in South African law, has its roots in a landmark ruling given by the Constitutional Court in 2011 that for the first time allowed miners suffering from lung diseases to sue their employers for damages. Any settlement that is reached will have to be confirmed by the High Court, lawyers said. If allowed, it could cost gold firms billions of rand as the industry struggles with lower commodity prices, deeper ore bodies and labour strife curbing output. "We really do feel that in many ways we have a meeting of minds," said Charmane Russell, spokeswoman for the mines working group dealing with silicosis. Silicosis is a disease that causes shortness of breath, a persistent cough and chest pains and makes people highly susceptible to tuberculosis. It has no known cure. [GN] ANTHEM: AMA Mulls Suit Over Planned Physician Reimbursement Cuts ---------------------------------------------------------------- Ken Terry, writing for Medscape, reports that the American Medical Association (AMA), at its recent interim annual meeting, took a strong stand against Anthem, one of the largest health insurers. According to the AMA, Anthem plans to reduce physicians' reimbursement in eight states when they bill for a procedure and an evaluation-and-management (E/M) visit on the same day. A spokesman told Medscape Medical News that the association is considering the steps recommended by its members to stop Anthem from moving forward. According to a news release, physicians at the AMA meeting adopted a policy to "aggressively and immediately advocate through any legal means possible, including direct payer negotiations, regulations, legislation, or litigation, to ensure when an evaluation and management (E&M) code is appropriately reported with a modifier 25, that both the procedure and E&M codes are paid at the non-reduced, allowable payment rate." AMA President David O. Barbe, MD, said, "The AMA will work aggressively to prevent implementation of unfair health insurer rules that are detrimental to physicians who are trying to practice medicine according to the needs of their patients. Health insurers that deny E/M services associated with procedures performed on the same day are needlessly forcing patients into multiple visits and delaying the provision of necessary care." The new Anthem policy will go into effect January 1 in California, Connecticut, Kentucky, Maine, Nevada, New Hampshire, Ohio, and Wisconsin, the AMA said. In addition, Anthem's Missouri plan will implement the policy on February 1. Anthem is not the only insurer stirring the pot. According to an AMA spokesman, the association has heard from colleagues in state medical and specialty societies that several other plans have reduced payments by ignoring modifier 25s. Among them are Harvard Pilgrim Health Care (Massachusetts), Tufts Health Plan (Massachusetts), Blue Cross Blue Shield Rhode Island, Independence Blue Cross (Pennsylvania), AmeriHealth New Jersey, and Regence Blue Shield Idaho. According to the current procedural technology (CPT) description, the spokesman said, modifier 25 provides the means to report a significant, separately identifiable E/M service by the same physician on the same day of a procedure or other service. There is no requirement that the E/M service and procedure be for different conditions/diagnoses; the E/M code must be just for a significant, separately identifiable service, as reflected in documentation. Nevertheless, "health insurers frequently ignore modifier 25 and reimburse for just one service -- typically the service with the lowest cost," said the news release. The AMA and other medical societies have long battled the big insurance companies over their payment policies. Associations that represented 950,000 physicians brought two massive class action suits in 2002 and 2004, alleging that the plans violated federal racketeering laws and state laws by systematically reducing, denying, and delaying payments to doctors. The insurers eventually settled these suits with big payouts to doctors. Among the plans that settled were Aetna, for $470 million; 35 Blue Cross Blue Shield plans and the Blue Cross Blue Shield Association, $128 million; and Wellpoint (now Anthem), $498 million. Medscape Medical News couldn't determine at press time whether the modifier 25 was mentioned in these suits. Whether it was included or not, Anthem and the other plans appear to be taking a big risk by resuming their efforts to reduce physician payments through billing policies. Medscape Medical News reached out to Anthem for comment but, at press time, the company had no comment on the AMA's resolution or its new payment policy. [GN] ARRAY BIOPHARMA: Jan. 22 Lead Plaintiff Motion Deadline Set ----------------------------------------------------------- Federman & Sherwood disclosed that on November 20, 2017, a class action lawsuit was filed in the United States District Court for the District of Colorado against Array Biopharma, Inc. (NASDAQ:ARRY). The complaint alleges violations of federal securities laws, Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5, including allegations of issuing a series of material or false misrepresentations to the market which had the effect of artificially inflating the market price during the Class Period, which is December 16, 2015 through March 17, 2017. Plaintiff seeks to recover damages on behalf of all Array Biopharma, Inc. shareholders who purchased common stock during the Class Period and are therefore a member of the Class as described above. You may move the Court no later than Monday, January 22, 2018 to serve as a lead plaintiff for the entire Class. However, in order to do so, you must meet certain legal requirements pursuant to the Private Securities Litigation Reform Act of 1995. If you wish to discuss this action, obtain further information and participate in this or any other securities litigation, or should you have any questions or concerns regarding this notice or preservation of your rights, please contact: Robin Hester FEDERMAN & SHERWOOD 10205 North Pennsylvania Avenue Oklahoma City, OK 73120 Email to: rkh@federmanlaw.com Or, visit the firm's website at www.federmanlaw.com [GN] ARVEST BANK: 10th Cir. Revives Overdraft Fee Class Action --------------------------------------------------------- Dena Aubin, writing for Reuters, reports that a federal appeals court has declined to revive a large part of a proposed class action accusing Arkansas-based Arvest Bank of charging improper overdraft fees, but will allow customers' breach of contract claims to proceed. In a decision on Nov. 20, a unanimous three-judge panel for the 10th U.S. Circuit Court of Appeals said a lower court in Oklahoma City was correct in dismissing the bank customers' claims for fraud, unjust enrichment, and breach of a fiduciary duty. [GN] ASSET RECOVERY: Faces "Hudson" Suit in E. Dist. New York -------------------------------------------------------- A class action lawsuit has been filed against Asset Recovery Solutions, LLC. The case is styled Daryl Hudson, on behalf of himself and all others similarly situated, Plaintiff v. Asset Recovery Solutions, LLC, Defendant, Case No. 1:17-cv-07188-AMD-SMG (E.D. N.Y., December 11, 2017). Asset Recovery is a full service asset recovery management.[BN] The Plaintiff is represented by: Daniel C Cohen, Esq. Daniel Cohen, PLLC 407 Rockaway Avenue Brooklyn, NY 11212 Tel: (646) 645-8482 Fax: (347) 665-1545 Email: dancohenlaw@gmail.com AUSTRALIA: Darwin Residents Urged to Join PFAS Class Action ----------------------------------------------------------- Ashley Manicaros, writing for NT News, reports that Darwin residents are being asked to join a PFAS class action with a legal firm letterbox-dropping areas near the airport. Shine Lawyers special counsel Joshua Aylward has written to residents who live "within an area which has been identified by the department of Defence" as being subject to investigation inviting them to a community meeting . The NT News has obtained a letter sent to a Parap home, less than 2.5km from RAAF Base Darwin. In the letter, the Brisbane-based firm said it has a team of experienced solicitors who were presently running a class action for the people of Oakey, Queensland, who have suffered losses as a result of contamination of the "exact same toxic firefighting chemicals used by the Department of Defence". Mr Aylward was not available to talk to the NT News when contacted. There has been growing concern over the use of Poly-fluoroalkyl Substances (PFAS) and contamination in Katherine and other areas of the Territory. The Defence Department faces a clean-up bill in the billions over the use of potentially cancer-causing firefighting foams at air force bases around the nation. Test readings from water supplies in Katherine have shown "spikes" above the 0.07 microgram per litre guideline adopted by the Commonwealth Government. Gorge Health Services GP Dr PJ Spafford called on the federal and NT governments to fund research into the impacts of the contamination. He said his patients were very concerned about how exposure to the potentially toxic chemical may have affected their health. Contamination concerns have also lingered around Darwin's Rapid and Ludmilla Creeks. The community meeting was set to be held on Dec. 4 from 6.30pm at the Double Tree by Hilton on the Esplanade. [GN] AVANGRID INC: Responds to Class Action Over Electric Prices ----------------------------------------------------------- Andy O'Brien, writing for The Free Press, report that the Boston- based law firm Hagens Berman Sobol Shapiro LLP filed a class- action lawsuit in a U.S. District Court against Central Maine Power Company's parent company, Avangrid, and Eversource Energy for allegedly causing electricity customers to incur $3.6 billion in overcharges between 2013 and 2016. Citing a study by the Environmental Defense Fund (EDF), the suit alleges that the two companies were able to use their "unique monopolies" to artificially constrain natural gas pipelines during peak winter demand times when gas was being used for heating and electricity. As a result of the scheme, the suit alleges that electric rates went up 20 percent for 14.7 million people living in Maine, Massachusetts, Vermont, New Hampshire, Connecticut and Rhode Island. The law firm is inviting all New England residents to join the class action suit at no cost. "Eversource and Avangrid are two of the largest energy companies in New England, and we believe they chose to use their substantial market power to unlawfully jack up consumers' electric bills," said Tom Sobol -- tom@hbsslaw.com -- a partner at Hagens Berman, in a statement. "It appears these companies willfully engaged in this scheme for years, and we intend to help those affected reclaim their losses, and stop this behavior." In an analysis of data from the Algonquin pipeline, which delivers gas to New England through Connecticut and Massachusetts, EDF economists concluded that wholesale electric rates were 20 percent higher between 2013 and 2016 due to higher gas prices resulting from unused pipeline capacity. The researchers found that gas utilities owned by Avangrid and Eversource routinely reserved more pipeline capacity than they needed and then canceled the orders at the last minute, leaving no time for other companies to use the space to flow more gas. "Reduced natural gas supply, caused solely by the Defendants' last-minute downward order adjustments, resulted in spot market natural gas prices that were 38% higher than they would otherwise have been on average," the lawsuit states. "During the cold winter months, Defendants' conduct resulted in spot market natural gas prices that were nearly 70% higher than they otherwise would have been." EDF's report doesn't ascribe a motivation for the practice, but it noted that both Avangrid and Eversource own substantial interest in non-gas-fired electrical generators in the region, which could give them incentive to make it more expensive for their rival gas- fired generators to run. By restricting fuel to their competitors, the grid operator had to call on non-gas power plants -- like wind, coal and oil -- to ramp up, earning the two companies more money. Avangrid owns several utility and energy subsidiaries across New England, including Central Maine Power, Maine Natural Gas, Connecticut Natural Gas, Berkshire Gas and Avangrid Rewewables, which owns 6,000 megawatts of wind capacity and 636 MW of natural gas-fired generation. Eversource owns United Illuminating, Connecticut Light and Power Company, Western Massachusetts Electric Company, NSTAR Electric Company and Public Service Company of New Hampshire. While EDF does not accuse the two companies of breaking any laws, the Hagens Berman suit calls the practice the "largest market manipulation scheme . . . since Enron" -- the company responsible for the illegal price fixing that led to the California electricity crisis of 2000 and 2001. In response to the EDF report, Connecticut regulators opened an investigation into the allegations of market manipulation. Critics have argued that the report puts into question the need for electric customers to subsidize the construction of more natural gas pipelines into the region to relieve winter constraints. The Gas Industry Responds Both Eversource and Avangrid vigorously deny that they engaged in any impropriety. The Northeast Gas Association, which includes Avangrid and Eversource subsidiary members, issued a statement in October calling the EDF report "profoundly misleading and inaccurate." "Two utilities cited in their report (Avangrid and Eversource) did nothing irregular, improper, or legally questionable with their reservation of gas capacity on an interstate natural gas pipeline," the organization stated. "In fact, they were acting with the full approval of regulators and in the best interests of their customers and their communities. They planned prudently to ensure they had sufficient, reliable supplies of natural gas during some of the harshest cold weather New England experiences. For EDF to portray these public utilities' responsible planning and operations as nefarious only highlights the biased agenda of the report and its sponsors." The Northeast Gas Association also stated, "When weather predictions are uncertain, as they often are in New England, it is common sense to err on the side of caution in reserving gas supply and to have a safety margin or cushion to cover unexpected operational issues. That is what Avangrid and Eversource did. We can only imagine the outcry if they had failed to reserve enough gas supply and homeowners, schools, hospitals, nursing homes, businesses, and industry lost access to fuel." Hagens Berman Sobol Shapiro attorneys have successfully litigated several high-profile consumer class-action lawsuits, including a $216 billion settlement against the tobacco industry, a $27 billion anti-trust settlement against Visa-Masterard; the $1.6 billion settlement against Toyota for unintended acceleration in cars; and the $1.6 billion settlement against Volkswagen for cheating on emissions tests. [GN] BANANA BOAT: Faces Class Action Over Sunscreen SPF 50+ Claims ------------------------------------------------------------- Tony Ibrahim, writing for Choice, reports that seven Banana Boat sunscreens have failed to meet the advertised SPF 50+ claims by more than half, resulting in the potential filing of a class action lawsuit by a mother and her five children. Bannister Law is taking registrations against Edgewell Personal Care Australia, the manufacturer of popular sunscreen brand Banana Boat, after laboratory tests of its SPF50+ sunscreen sprays averaged ratings of SPF20 or less. "All seven aerosol varieties we tested fell well short of the marketed SPF 50+," says Charles Bannister -- charles@bannisterlaw.com.au -- founder and principle of Bannister Law. "To claim SPF 50+, products need to test greater that 60+." The best performing sunscreen achieved an average SPF rating of 20.2, while the worst performing scored 10.7. Each sunscreen spray was tested ten times according to international standards by the laboratory Eurofins Dermatest. Banana Boat SPF test results Sunscreen SPF* Banana Boat Kids Clear Sunscreen Spray SPF 50+ 20.2 Banana Boat Ultra Clear Sunscreen Spray SPF 50+ 17.7 Banana Boat Sport Clear Sunscreen Spray SPF 50+ 18.0 Banana Boat Everyday Clear Sunscreen Spray SPF 50+ 19.5 Banana Boat SunComfort Clear Sunscreen Spray SPF 50+ 10.7 Banana Boat Dry Balance Clear Sunscreen Spray SPF 50+ 13.5 Banana Boat Sport Coolzone Clear Sunscreen Spray SPF 50+ 16.1 Source: Bannister Law. Lab tests conducted by Eurofins Dermatest Pty Ltd according to Australian Standards, which necessitate following International Standard ISO 24444. *Average of 10 test results. Leading the class action is a mother and her five children, who Bannister Law claims were repeatedly burned despite using two Banana Boat products: its Ultra Clear Sunscreen Spray SPF 50+ and Kids Clear Sunscreen Spray 50+. All of her children are believed to be under the age of ten. Edgewell Personal Care rejected the test results, instead describing them as "anomalous". "All Banana Boat products meet the SPF claim as labelled on pack," a company spokesperson tells CHOICE. "These results are entirely inconsistent with the testing we have conducted at Edgewell's reputable labs, in accordance with the Australian mandatory standard as regulated by the TGA." The Therapeutic Goods Administration (TGA) -- the Department of Health body responsible for regulating sunscreens, as well as food packaging and medication -- says it began investigating aerosol sunscreens in May following widespread public concerns. "TGA undertook preliminary testing to investigate their delivery rates," a spokesperson tells us. "We found the amount of sunscreen delivered per second differed between brands. "It is important consumers . . .'apply liberally' to ensure proper coverage of the sunscreen." Such a class action, if filed, could yield similar results to the law firm's recent case against Nurofen, where a $3.5 million settlement was reached over misleading claims in August. But the class action against Banana Boat's manufacturer could result in exemplary damages, in addition to refunds. "At this stage, all options are open," says Bannister. The class action lawsuit is in early stages, but Charles Bannister says it will most likely go ahead. "I don't see any reason why this class action won't proceed," he tells CHOICE. "I would encourage the makers of Banana Boat to resolve any issues." Find out which everyday brands outrated the high-end ones in our user trial of face sunscreens and SPF moisturisers. Sunscreen SPF claims and the category's regulation were called into question earlier this year, as summer neared its end, after photos of people who were burned despite applying sunscreen went viral on social media. The category has come under continual scrutiny since 2015, after a CHOICE investigation found four out of six sunscreens did not meet advertised SPF50+ claims. [GN] BANC OF CALIFORNIA: Potential Securities Claims Investigated ------------------------------------------------------------ Shareholder rights law firm Robbins Arroyo LLP is investigating whether certain officers and directors of Banc of California (NYSE: BANC) breached their fiduciary duties to shareholders. On January 26, 2017, a securities class action complaint was filed against Banc of California in the U.S. District Court for the Central District of California for alleged violations of the Securities Exchange Act of 1934. The complaint alleged that Banc of California and certain of its executives had undisclosed ties to Jason Galanis, an individual with an extensive history of criminal securities fraud, which created a significant regulatory risk for the company. In a September 6, 2017 order, the Honorable Andrew J. Guilford of the U.S. District Court for the Central District of California denied in part Banc of California's motion to dismiss in In re Banc of California Securities Litigation. View this information on the law firm's Shareholder Rights Blog: www.robbinsarroyo.com/shareholders-rights-blog/banc-of-california- inc-nov-2017-2/ Banc of California Shareholders Have Legal Options Concerned shareholders who would like more information about their rights and potential remedies can contact attorney Leonid Kandinov at (800) 350-6003, LKandinov@robbinsarroyo.com, or via the shareholder information form on the firm's website. Robbins Arroyo LLP -- http://www.robbinsarroyo.com-- is a shareholder rights law firm. The firm represents individual and institutional investors in shareholder derivative and securities class action lawsuits, and has helped its clients realize more than $1 billion of value for themselves and the companies in which they have invested. [GN] BARCLAYS PLC: Wants 2d Cir. to Rehear Dark Pool Class Cert. ----------------------------------------------------------- Dunstan Prial, writing for Law360, reports that Barclays PLC asked a Second Circuit panel on Nov. 20 to partially rehear a decision granting class certification to investors suing the bank over losses tied to the bank's alleged misrepresentations about oversight of its dark pool market, saying the ruling is inconsistent with U.S. Supreme Court precedent. Barclays' new filing argues that the panel erroneously ruled that plaintiffs in class action fraud cases can make fraud claims against large, publicly traded companies without offering "direct evidence" that the company's stock moved due to misstatements made by the company, contrary to findings in the Supreme Court's 1988 Basic Inc. v. Levinson ruling. If allowed to stand, the Second Circuit's earlier decision would create a "rubber stamp" for any group of investors seeking class certification in a securities case against a large, publicly traded company, Barclays' lawyers said, asking for an en banc or panel rehearing. "Defendants will face the pressure of 'in terrorem' settlements over 'groundless claims' as plaintiffs flock to this circuit, where class certification is now a foregone conclusion," Barclays said. Plaintiffs' attorney Jeremy A. Lieberman, a co-managing partner at Pomerantz LLP, told Law360 he believes the Second Circuit's decision affirming class action status was "well considered and in consonance" with earlier, related Supreme Court rulings. "As such, we believe it highly likely that either an en banc panel, or the Supreme Court for that matter, will leave this decision undisturbed," he said. Barclays did not immediately respond to a request for comment. The Second Circuit panel upheld a lower court's ruling granting certification to a class of investors who say Barclays shares fell in the wake of a July 2015 announcement of a state investigation that revealed Barclays had allegedly committed fraud through a number of public assertions that the bank was policing its dark pool platform to prevent stock manipulation by high-frequency traders. In that ruling, the panel shot down Barclays' arguments that misstatements and omissions allegedly made by the bank regarding the safety of its dark pools had no "statistically significant" impact on the price of the London-based Barclays' American depository shares, which trade like regular stocks on U.S. markets. The plaintiffs, led by Barbara Strougo, sued Barclays, alleging the misstatements and omissions regarding the bank's dark pool, known as Liquidity Cross or LX, helped artificially inflate the price of the bank's shares, according to the shareholders' suit. Dark pools allow investors to trade mostly anonymously, which is attractive to big institutional investors who trade large blocks of securities and want to avoid being targeted by high-frequency traders who exploit large buy and sell orders through a tactic known as front-running. Barclays, according to the shareholder suit, made frequent public statements saying it took a number of measured precautions against abuses by high-frequency traders. Barclays has argued in past filings that the alleged misstatements cited by the investors weren't material, and besides, the bank said, its dark pool revenue amounted to about 0.1 percent of its total revenue, not enough to materially impact shareholders. Barclays' has also argued the Second Circuit's decision ran contrary to the Supreme Court's ruling in Halliburton II, which upheld an earlier high court ruling that placed the burden in putative class action stock fraud cases on defendants to prove that misstatements by a company had no impact on the company's stock price. The investors sought class status shortly after Barclays stock fell more than 7 percent on the day after New York Attorney General Eric Schneiderman announced his civil fraud suit. Barclays agreed in January 2016 to pay $70 million to settle claims by Schneiderman and the U.S. Securities and Exchange Commission related to operation of its dark pool. The shareholders are represented by Jeremy A. Lieberman, Emma Gilmore, Tamar A. Weinrib, Patrick V. Dahlstrom and Joshua B. Silverman of Pomerantz LLP. Barclays is represented by Jeffrey T. Scott -- scottj@sullcrom.com -- Matthew A. Schwartz -- schwartzmatthew@sullcrom.com -- Andrew H. Reynard --reynarda@sullcrom.com -- and Brent J. McIntosh of Sullivan & Cromwell LLP. The case is Strougo et al. v. Barclays PLC et al. Case No. 16-1912 (2nd Cir.). The underlying case is Strougo v. Barclays PLC, case number 1:14-cv-05797 (S.D.N.Y). [GN] BEAVER COUNTY, PA: Argument to Tackle Issues on Two Statues ----------------------------------------------------------- Ronald Mann, writing for SCOTUS Blog, reports that securities litigators have spent the last two decades working out the implications of two statutes Congress passed in the closing years of the last century, both designed to limit securities class actions. The first was the Private Securities Litigation Reform Act of 1995, known as the PSLRA. When that statute produced more of a flight to state courts than it did a decline in class actions, Congress responded with the Securities Litigation Uniform Standards Act of 1998, known as SLUSA. It is a testament both to the high stakes involved in securities litigation and to the sloppy drafting of both the PLSRA and SLUSA that the Supreme Court has faced numerous questions of interpretation under those statutes. Indeed, to the outsider the most remarkable thing about the argument in Cyan, Inc. v. Beaver County Employees Retirement Fund may be how many basic questions about the two statutes remain unsettled. Because Cyan does not involve any regulations, the Supreme Court confronts a pure question of statutory interpretation. And because the relevant statutes are so intricate, some considerable discussion of the contested provisions is necessary to elucidate the problem at hand. The first point to understand is the tradition of concurrent jurisdiction over securities claims. From the enactment of the Securities Act of 1933 during the Great Depression, Congress traditionally expected (and explicitly provided in the statute) that securities litigation would proceed in both state and federal courts. Thus, the statute always has stated (in 15 USC Sec. 77v) that the "district courts shall have jurisdiction, concurrent with State courts, of actions to enforce any liability created by [the Securities Act of 1933]." Responding to the PSLRA-driven flight of securities class actions from federal court to state court, SLUSA added a major qualification to Section 77v, which now provides that the state courts exercise concurrent jurisdiction "except as provided in section 77p . . . with respect to covered class actions." The question in this case is whether that proviso bars from state court both mixed class actions (those that present claims under both federal and state law) and pure federal class actions (those that assert claims only under the Securities Act), or only mixed class actions. That question, not surprisingly, depends on exactly what Congress "provided in section 77p . . . with respect to covered class actions." It turns out that Section 77p does several things of arguable relevance. One is that Subsection 77p(b) completely bars any state-court class action raising claims under state law (which would include a mixed class action), so long as the action is a "covered class action" and involves a "covered security." Section 77p also defines those terms, providing that a securities class action is "covered" if it involves 50 plaintiffs and that a security is "covered" if it is traded on a national exchange. The most that the Supreme Court can do then (because it doesn't sit to write report cards assessing the quality of Congress' literary craft) is decide whether it makes more sense to read the proviso as barring all covered actions or instead as barring only mixed class actions. On the one hand, the employees argue that interpreting the proviso as barring all covered actions confers a lot of important substantive content on a phrase that reads as if it is only cross-referencing substantive action that Congress took elsewhere. On the other hand, in Cyan's view, reading the proviso as barring concurrent jurisdiction only over mixed actions doesn't accomplish very much when Section 77p(b) already has barred them categorically. Much of the briefing, especially by the amici, raises policy questions about the merits of state court versus federal court resolution of securities class actions. Cyan's amici inveigh against the danger of permitting the wild and ungovernable state courts to torment our nation's large businesses, and the employees stress the longstanding routine of trusting state courts to play the major role in adjudicating commercial litigation in our federal system. In the past, the Supreme Court has shown a willingness to read SLUSA as a compromise statute designed to eradicate some, but clearly not all, state securities litigation. Oral argument should provide an indication of whether the parties' and amici's policy arguments will influence the justices' resolution of the statutory interpretation questions in this case. Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case. The author of this post, however, is not affiliated with the firm. The case is Cyan v. Beaver County Employees Retirement Fund. [GN] BLT RESTAURANT: Faces "Martinez" Suit in E.D. New York ------------------------------------------------------ A class action lawsuit has been filed against BLT Restaurant Group, LLC. The case is styled Pedro Martinez, individually and as the representative of a class of similarly situated persons, Plaintiff v. BLT Restaurant Group, LLC doing business as: BLT Restaurants and Esquared Hospitality, LLC doing business as: E2 Hospitality, Defendants, Case No. 21:17-cv-07196 (E.D. N.Y., December 11, 2017). BLT Restaurant Group, LLC is in the restaurant business.[BN] The Plaintiff is represented by: Dan Shaked, Esq. Shaked Law Group, P.C. 44 Court Street, Suite 1217 Brooklyn, NY 11217 Tel: (917) 373-9128 Fax: (718) 504-7555 Email: shakedlawgroup@gmail.com BMNY CONTRACTING: "Hernandez" Suit Seeks Unpaid Overtime Pay ------------------------------------------------------------ Mario J. Hernandez, on behalf of himself and all others similarly situated, Plaintiff, v. BMNY Contracting Corp., BMNY Construction Corp. and Benedetto Cupo, Defendants, Case No. 17-cv-09375 (S.D. N.Y., November 30, 2017), seeks unpaid minimum wages, overtime wages, liquidated damages and prejudgment and post-judgment interest, attorneys' fees and costs and such other relief for violation of the Fair Labor Standards Act and the New York Labor Law. Defendants are engaged in the construction business. The Plaintiff and similarly situated employees performed non-exempt work for them and regularly worked more than forty hours in a workweek, but were not paid overtime premium. [BN] Plaintiff is represented by: Peter A. Romero, Esq. LAW OFFICE OF PETER A. ROMERO PLLC 103 Cooper Street Babylon, NY 11702 Tel. (631) 257-5588 Email: promero@romerolawny.com BMW BANK: Auto Finance Company Unable TO Shake TCPA Class Action ---------------------------------------------------------------- Brooke Conkle and Alan D. Wingfield, writing for Mondaq, reports that the Third Circuit recently clarified in important ways its ascertainability standard for class actions under Rule 23 in a case that arose from the efforts of an auto finance company to generate business by marketing efforts directed at automobile dealers. The decision reflects two key findings: (1) that defendants who argue a class is not ascertainable -- i.e., that it is not administratively feasible to identify class members -- must produce information in their possession regarding putative class members during discovery; and (2) that affidavits from class members, by themselves, do not satisfy the ascertainability standard, but can suffice when combined with other records. The genesis of the dispute is a 2012 agreement between Creditsmarts, an internet-based "indirect business-to-business lending tree" that helps independent car dealers connect various lenders with potential customers, and BMW Bank of America, Inc. and BMW Financial Services, LLC. BMW offers automotive financing to customers through its "up2drive" division, which provides borrowers with financing at independent car dealers, regardless of make or model. The parties agreed that BMW would use the Creditsmarts system at participating independent dealers to offer up2drive loans to borrowers. Creditsmarts agreed "to establish electronic systems to permit customers to communicate with up2drive through mutually agreed secure lines of communication" and to "process all application forms using the minimum credit parameters established by up2drive and the information obtained ... from the application form including the customer's credit history, that will provide sufficient data to determine whether the customer may qualify for any loan programs offered ... by up2drive." In exchange, BMW would compensate Creditsmarts for customers referred through the up2drive system. In late 2012, Creditsmarts used a fax broadcaster, WestFax, Inc., to fax advertisements to independent dealers, touting the up2drive program. The advertisements included BMW's up2drive logo and identified BMW Bank of North America as the sender. Creditsmarts used WestFax to send 5,480 faxes in late November 2012, 5,107 faxes in early December, and another 10,402 faxes in late December, using a list created from Creditsmart's customer database. City Select Auto Sales, a recipient of one of the faxes, brought a putative class action against the three parties, arguing that the unsolicited faxes represented a violation of the Telephone Consumer Protection Act. The database formed the lynchpin of the parties' arguments on class certification. Class plaintiffs moved to compel production of the database, while Creditsmarts resisted, arguing that the database included more entries than the number of BMW faxes sent in 2012. Plaintiff's motion to compel production of the database was denied and the district court found that the plaintiff's proposed class failed to meet the ascertainability standard of Rule 23, because there was no reliable and administratively feasible way to determine whether putative class members received faxes during the three 2012 fax blasts. The Third Circuit vacated the district court's decision and remanded for further findings after production of the database. The court further found that none of its previous decisions foreclosed the possibility that the plaintiff could support a class with affidavits combined with information from the Creditsmarts database, and that the only factual determination necessary for class membership was whether a given dealership in the database received a fax from Creditsmarts on one of the three 2012 dates. The case is City Select Auto Sales, Inc. v. BMW Bank of North America, Inc., et al., Civil Action No. 1-13-cv-04595 (D.N.J.). [GN] BRITISH COLUMBIA: To Pay Back $5.5MM in Fees to Methadone Patients ------------------------------------------------------------------ CBC News reports that an application filed in the British Columbia Supreme Court says the provincial governments has agreed to pay back more than $5.5 million in fees deducted from the income- assistance cheques of methadone patients. Details of the agreement were filed by plaintiff Laura Shaver and outline how B.C. will reimburse 70 per cent of the $7.7 million, plus interest, collected from more than 11,700 methadone patients. A proposed class-action lawsuit was launched two years ago aimed at preventing private methadone-dispensing clinics from receiving $18.34 a month that the government allowed to be skimmed off their clients' income-assistance payments. The reimbursement applies to deductions made between November 2009 and July 2016, when the fees were suspended. The court notice says the settlement agreement was reached in May, while the B.C. Liberal government was still in power but was conditional on approval from the province's treasury board. The settlement is subject to court approval and will go before a judge on Friday. Shaver's lawyer, Jason Gratl, Esq. -- jason@gratlandcompany.com -- says the average settlement is between $400 and $500. The B.C. government has declined comment, saying it does not speak on matters before the courts. [GN] BROADSOFT INC: Monteverde & Associates Files Class Action --------------------------------------------------------- Monteverde & Associates PC disclosed that it has filed a class action lawsuit in the United States District Court for The District of Maryland, case no. 8:17-cv-03415, on behalf of shareholders of BroadSoft, Inc. ("BroadSoft" or the "Company") (NASDAQ: BSFT) who held BroadSoft securities and have been harmed by BroadSoft and its board of directors' (the "Board") for alleged violations of Sections 14(a), and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") in connection with the sale of the Company to Cisco Systems, Inc., through its subsidiary Brooklyn Acquisition Corp., (collectively "Cisco"). Under the terms of the agreement, BroadSoft shareholders will be entitled to receive $55.00 for each share of common stock they own (the "Merger Consideration). The complaint alleges that this offer is inadequate and alleges that the proxy statement on Schedule 14A (the "Proxy") provides materially incomplete and misleading information about the Company's financials and the transaction, in violation of Sections 14(a), and 20(a) of the Exchange Act. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from November 22, 2017. Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. If you wish to discuss this action, or have any questions concerning this notice or your rights or interests, please contact: Click here for more information: www.monteverdelaw.com/investigations/m-a/ It is free and there is no cost or obligation to you. Monteverde & Associates PC -- http://www.monteverdelaw.com-- is a boutique class action securities and consumer litigation law firm committed that has recovered millions of dollars and is committed to protecting shareholders and consumers from corporate wrongdoing. Contact: Juan E. Monteverde, Esq. MONTEVERDE & ASSOCIATES PC The Empire State Building 350 Fifth Ave, Suite 4405 New York, NY 10118 United States of America jmonteverde@monteverdelaw.com Tel: (212) 971-1341 [GN] CAFFBENE FRANCHISE: Faces "Young" Suit in S.D. New York ------------------------------------------------------- A class action lawsuit has been filed against Caffbene Franchise Corp. The case is styled as Lawrence Young, individually and on behalf of all other persons similarly situated, Plaintiffs v. Caffbene Franchise Corp., Caffbene Business Consulting Inc. and Caffbene Inc., Defendants, Case No. 1:17-cv-09716 (S.D. N.Y., December 11, 2017). Caffä Bene is a coffeehouse chain based in Seoul, South Korea.[BN] The Plaintiff is represented by: Douglas Brian Lipsky, Esq. Bronson Lipsky LLP 630 Third Avenue, 5th Floor New York, NY 10017 Tel: (212) 392-4772 Fax: (212) 444-1030 Email: dlipsky@bronsonlipsky.com CALGON CARBON: Faruqi & Faruqi Files Securities Class Action ------------------------------------------------------------ Faruqi & Faruqi, LLP, disclosed that it has filed a class action lawsuit in the United States District Court for the District of Delaware, case No. 1:17-cv-01572, on behalf of shareholders of Calgon Carbon Corporation ("Calgon" or the "Company") (NYSE: CCC) who have been harmed by Calgon's and its board of directors' (the "Board") alleged violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") in connection with the proposed merger of the Company with Kuraray Co., Ltd. ("Kuraray"). On September 21, 2017, the Board caused the Company to enter into an Agreement and Plan of Merger ("Proposed Transaction"), under which the Company's shareholders will stand to receive $21.50 in cash for each share of Calgon stock they own (the "Merger Consideration"). If you wish to obtain information concerning this action, you can do so by clicking here: www.faruqilaw.com/CCCnotice The complaint alleges that the Preliminary Proxy Statement on Schedule 14A (the "Proxy") filed with the Securities and Exchange Commission ("SEC") on October 27, 2017, violates Sections 14(a) and 20(a) of the Exchange Act because it provides materially incomplete and misleading information about the Company and the Proposed Transaction, including information concerning the Company's financial projections and analysis, on which the Board relied to recommend the Proposed Transaction as fair to Calgon shareholders. Take Action Plaintiff is represented by Faruqi & Faruqi, LLP, a law firm with extensive experience in prosecuting class actions, and significant expertise in actions involving corporate fraud. Faruqi & Faruqi, LLP, was founded in 1995 and the firm maintains its principal office in New York City, with offices in Delaware, California, Georgia, and Pennsylvania. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from November 22, 2017, the date of this notice. Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. If you wish to discuss this action, or have any questions concerning this notice or your rights or interests, please contact: Nadeem Faruqi, Esq. James M. Wilson, Jr., Esq. FARUQI & FARUQI, LLP 685 3rd Avenue, 26th Floor New York, NY 10017 Telephone: (877) 247-4292 or (212) 983-9330 E-mail: nfaruqi@faruqilaw.com jwilson@faruqilaw.com Website: http://www.faruqilaw.com[GN] CANADA: No Date Yet for Class Action Lawyer Disciplinary Hearing ---------------------------------------------------------------- CHCH reports that a lawyer in Caledonia says the clock is ticking for hundreds of people involved in the class action lawsuit following the 2006 protests at Douglas Creek Estates. If they hope to receive the remaining $1.5 million owed to them, a claim must be made to the Law Society. John Findlay, the lawyer who won the $20 million class action lawsuit and was handling the funds confessed that he spent the remaining $1.5 million that was expected to be handed out this year and faces disciplinary action. Peter Murray has been a lawyer for over 45 years and says the Law Society, which regulates licences and disciplines lawyers in Ontario, maintains a fund for situations like this. But there's a catch, clients have only 6 months to make a claim after notice of any wrong doing, that makes the deadline November 29th. Mr. Murray's firm is in Caledonia and he was a plaintiff in the class action lawsuit along with over 400 others who were affected by the unrest in 2006 where activists from Six Nations took over a housing development under construction to dispute land claims with the Federal government. He's offered to help those people regain the last of the funds owed to them with a fee of 25% of the amount recovered plus HST. More than half of the plaintiffs have signed on with Murray. Peter Murray says he doesn't believe the Law Society will process claims until John Findlay's final disciplinary hearing is held, a date has not been set. The Law Society says Findlay's law license remains suspended and the investigation is ongoing. [GN] CANADA: Strike-Hit College Students Balk at $500 Compensation ------------------------------------------------------------- Jennifer Bieman, writing for The London Free Press, reports that a $500 provincial payout for their five-week hardship? One strike- weary college student says it's nowhere near enough. As students at Ontario's 24 colleges returned to class on Nov. 21, Fanshawe College student Caitlin Foulon, who's leading the charge to take Ontario's colleges to court, said the potential class-action lawsuit that was recently launched is as important as ever. "A lot of us pay $500 just for rent," she said. "(The province's offer) hardly puts a dent in our costs . . . We've been laughing about that, because it's pretty much a joke." On Nov. 20, the province announced full-time and international students can apply for reimbursement of as much as $500 for unexpected costs, such as child-care fees, rebooked train or bus tickets, or rent, from funds of strike-related savings set aside by colleges. Students will be able to apply to their college for financial assistance, the province said -- a process Toronto-based Charney Lawyers, the firm handling the proposed class action, warns students to be wary of. "There's a number of unanswered questions," said senior partner Ted Charney, "including whether there'll be any additional compensation for those students who elect for a full tuition refund, or whether Ontario is going to require them to sign a full and final release of all claims in exchange (for the payout)." Mr. Charney is concerned students who apply for compensation may be asked to sign a document that would prevent them from filing future claims, including the potential class action. The planned lawsuit, which includes plaintiffs from each of the province's 24 public colleges, alleges students have paid for an education they didn't receive because of the work stoppage. It is seeking damages for breach of contract and breach of the Ontario Consumer Protection Act. Mr. Charney said, barring new information from the province or a more robust compensation offer, the law firm will file a statement of claim against the colleges by mid-December. "If it turns out to be a full compensation package that covers everything, then we won't need a class action, but right now it's only a piecemeal package," said Mr. Charney. Ms. Foulon wants to see compensation that's at least double what the province offered. "We want a firm number, not an 'up to' amount. The fact that it's 'up to' and you have to prove your financial need is ridiculous," she said. "I feel like we still aren't getting our full education that we paid up front for." The government is also offering a full tuition refund to students who choose to withdraw from the now-condensed fall term within two weeks of their return to class on Nov. 21. About 12,000 college faculty returned to campus on Nov. 20, one day after the provincial government passed back-to-work legislation despite opposition from the New Democrats. All outstanding issues between the Ontario Public Service Employees Union (OPSEU) and College Employer Council have been referred to binding mediation-arbitration. Both sides must mutually select an arbitrator. On Oct. 16, Fanshawe's 540 full-time and about 300 partial-load instructors walked off the job after talks broke down. Classes were cancelled at Fanshawe's Simcoe, Woodstock and St. Thomas campuses, Lambton College in Sarnia and St. Clair College's Windsor and Chatham campuses. [GN] CENTURYLINK: Overbilling Suits Consolidated Into Class Action ------------------------------------------------------------- Annette E. Becker, Esq., and William H. Smith, Esq., of K&L Gates, in an article for The National Law Review, wrote that CenturyLink customers across Central Florida complained to the Orlando Sentinel in August that their bills jumped higher every month, they were paying for services never ordered and they were quoted one price and billed another. Things are bad when the local newspaper writes about a company quoting frustrated and angry seniors waving their bills. They're worse when a pit bull of a lawyer steps in. Poor CenturyLink. The same attorney who got neighborhood watch volunteer George Zimmerman off on charges that he killed an unarmed black teen is taking on the communications giant, and he's got a whole pack of hungry dogs behind him. Orlando lawyer Mark O'Mara has spent recent months kvetching with about 25 other attorneys across the country who also have filed similar lawsuits against CenturyLink, many over high-pressure selling tactics and unpredictable bills. The result: All of these suits, ranging from Oregon to Florida, have been rolled into a single giant class-action suit with Mr. O'Mara as one of the lead attorneys. That's particularly fortuitous for fed up CenturyLink customers in Central Florida who will have easy access to one of the lawyers. Take, for example, Robin Brubaker, who was promised a price of $126.90 a month for internet and basic Prism TV when she and her husband moved into a development near The Villages in 2015. Her first bill was $341.83. After that, the amounts varied every month, but they never were the same twice. She and her neighbors howled their frustration to the newspaper and appeared in an August column detailing their problems. Since then? "Everybody involved here is just fine," Mr. Brubaker said. "My bill has not changed one iota. "It's like it never happened." Like it never happened . . . Ah, yes. Of course. Stung by bad press, CenturyLink sprung into action, immediately fixing bills so that angry customers forget their annoyance and choose not to get into a lawsuit. Too late. The cadre of lawyers already has 20 complainants and several thousand are expected to join the suit in the next three or four months. Already CenturyLink is fighting behind the scenes -- and Mr. O'Mara is growling over it. About three weeks ago, the company sent notices to customers advising them that if they have a dispute with the company they must go through arbitration rather than file a lawsuit. The notice, which probably ended up in the garbage of 99.99 percent of customers, gives them the opportunity to opt out of this requirement. Please raise your hand if you did so. Anybody see their neighbors waving? The arbitration requirement is the weak spot in the plaintiff's case, Mr. O'Mara said. CenturyLink's most vulnerable area is in its sales force. "I would tell you anecdotally that they have extraordinarily aggressive sales tactics upselling people stuff that they would never use," he said. CenturyLink spokesman Mark Molzen wrote in an email: "Our position is clear -- we aim to operate our business with honesty and integrity." He said the company will "vigorously defend ourselves." Many class-action suits against big businesses end up with the consumer getting useless coupons or a check for $4.33 or a deal on another item if they purchase something. Lawyers make money, and consumers are no farther ahead. Mr. O'Mara said his goal is to get several months of free internet -- maybe even a year -- for customers treated shabbily. CenturyLink's downfall, he predicted, will be the demographic of customers who typically don't complain or scrutinize their bills: seniors. "The very population that they thought they could abuse easily -- these senior citizens -- there is a percentage retired at home and paying really close attention to their bills," Mr. O'Mara said. "If my dad got a bill that was 18 cents off, he'd say ?It's the principle of it.' " First, however, the lawyers must begin collecting complainants. Have you had bills that are baffling? Whose amounts bounce all over even though the service hasn't changed? That contain charges for services never ordered? A consolidated complaint including customers from a variety of states is to be filed in Minnesota, likely in January, after the lawyers sort out various legal mumbo-jumbo. It will include complaints not only from consumers but from stockholders who say they have been harmed by CenturyLink's bad management practices. One thing Mr. O'Mara is learning as he listens to story after story of billing problems: "I think CenturyLink thought these people [would] never know." [GN] COHN RESTAURANT: Faces Class Action Over Bill Surcharges -------------------------------------------------------- Lori Weisberg, writing for San Diego Tribune, reports that lawsuits have been filed against more than a dozen San Diego restaurants and dining groups claiming they are defrauding their patrons by illegally tacking on a surcharge to customers' bills that many operators have been using to defray increasing labor costs. Named in the suits, which have been filed over the last eight months by a local consumer rights law firm, are some of San Diego's highest profile dining venues, from George's at the Cove and Mister A's to Sammy's Woodfired Pizza & Grill and the Cohn Restaurant Group, which has close to a couple dozen restaurants in the county. The surcharges, which can range from 2 percent to 4 percent of the cost of a meal, have become increasingly common since San Diego's minimum wage jumped to $11.50 an hour in January, which at the time was the second such hike in six months. The lawsuits allege that the surcharges violate multiple statutes of the state business code, among them false advertising and unfair competition. A section of the California Consumers Legal Remedies Act is also cited in some of the complaints to bolster their claim that the surcharges are unlawful. Specifically, the complaints assert that the restaurants are deceiving customers by not reflecting the surcharge in the pricing of the individual menu items. The suits, in addition to seeking class action status, are asking for a court order to halt the practice and that consumers be refunded. "Adding 3 percent to the bill or any percent is duplicitous," said attorney Robert Hyde, whose firm Hyde & Swigart has filed 15 suits so far on behalf of multiple clients, some of them other attorneys. The firm says it expects to have filed as many as 20 lawsuits by year's end. "We're saying, just be up front with people. Don't be deceptive. If the steak is $50, say it's $50, don't say it's $50 plus 3 percent. Otherwise, they find out at the end of the meal that the steak is really $51.50. They shouldn't have to sit there and figure out how much it costs." The surcharges also have been the target of a crackdown from the City Attorney's office. While City Attorney Mara Elliott's office has not deemed the charges themselves illegal, she has gone after restaurants that she says have not "clearly and conspicuously" forewarned diners that they are being charged an extra levy. Ms. Elliott filed a civil enforcement action against Barefoot Bar & Grill on Mission Bay for allegedly failing to disclose its menu surcharge and then adding it to menus in extremely small print after Elliott had sent an Aug. 30 warning letter. In a statement responding to the private lawsuits, Ms. Elliott said she thinks both her office's approach and that of the Hyde & Swigart firm are legitimate ways of handling consumer protection issues related to the surcharges. "The law provides different tactics for addressing deceptive restaurant pricing," Ms. Elliott's office said. "Our prosecutors have taken one approach, a private law firm has taken another. Both are valid and seek the same outcome, which is for restaurants to tell customers the truth about the price of a meal." She noted that since cracking down on restaurants who were not following the law, the office has seen fewer complaints. "We will watch these private lawsuits with interest, and hope they also lead to greater consumer protection," Ms. Elliott said. Several of the restaurateurs targeted in the lawsuits declined to comment because the litigation is still ongoing, but one attorney representing several of the restaurants, including George's at the Cove, rejected the legal claims as being meritless. "As their complaints are worded, their argument is that restaurants are not notifying customers up front of the charge, which is just an untrue statement," said attorney Lukas Clary, whose clients also include Galaxy Taco and Rockin' Baja Lobster. "And the statutes they cite don't prohibit the practice of a surcharge. If they did, no surcharges could be imposed. Surcharges are a long-established and lawful practice across many industries." The California Restaurant Association was more blunt in its assessment of the lawsuits, calling the legal action little more than a shakedown. "The lawsuits have been filed by a group of trial lawyers trying to extort small businesses," said Sharokina Shams, vice president for public affairs with the restaurant association. "These are the worst kind of shakedown lawsuits. They are not about standing up for the consumer but achieving a quick payday for a group of people made up of attorneys posing as everyday customers." Mr. Hyde and his associate Kevin Lemieux, who is handling the surcharge cases, acknowledged that the plaintiffs in a few of the cases are lawyers but noted that they, too, dined at restaurants where they were assessed a surcharge for their meal. Attorney Mary Livingstone, a plaintiff in lawsuits filed against Tom Ham's Lighthouse and the Bali Hai, said she did not want to discuss the legal action but said she had taken her children out to brunch at the Bali Hai and only noticed the surcharge after she got home. Said Mr. Hyde, "Oftentimes lawyers come to us and we talk to each other. Certainly, some of these people are people we knew. I understand that people are cynical about lawsuits and the motivations of attorneys, but we're just really trying to stop this and if they cooperate, we will not sue them. We're not looking to gouge anyone. They can pay us for our hours and we'll go away." Messrs. Hyde and Lemieux say they are not aware of any other lawsuits similar to theirs that are challenging the legality of the restaurant surcharges. Attorney Clary characterized the suits as a "novel challenge." Restaurateurs in Los Angeles were sued in a complaint last year related to surcharges put in place there to help cover health insurance costs, but the basis for the suit was different than that of the San Diego cases. The L.A. suit alleged the restaurant owners had conspired to violate price-fixing and collusion laws. When San Diego restaurateurs decided to implement surcharges this year, they said they did so to not only cover minimum wage increases but to narrow the pay gap between their kitchen staff and servers, who earn far more because they are tipped. Restaurant operators argued that a surcharge allows them to more fairly distribute those revenues to all their workers as the minimum wage continues to climb. Restaurateur Arsalun Tafazoli, whose firm Consortium Holdings operates a number of high profile restaurants in San Diego, has so far held off levying a surcharge or raising prices but knows he will have to do something to address rising costs. "I don't know if a surcharge is the right path or wrong path, but frankly, we're just procrastinators. I think the mentality of others was to try to get in front of it," said Tafazoli, whose most recent restaurant opening was the Born & Raised steakhouse in Little Italy. "One aspect of the surcharge I like is there's a more equitable distribution of the funds. But when I see operators in the industry I think are better at this who have rolled it out and then retracted it, it definitely gives us cold feet." [GN] COLLEGE SERVITE: Priest Suspended After Sexual Abuse Class Action ----------------------------------------------------------------- CBC News, Radio-Canada and CBC Montreal's Kate McKenna report that a priest who taught history at a Catholic boarding school in the Eastern Townships has been suspended after an application for a class-action lawsuit was filed alleging he sexually assaulted at least one of his students. In the document, a 57-year-old man accuses the College Servite in Ayer's Cliff, Que., and the religious Servite Order community of turning a blind eye to the alleged abuse he was a victim of between 1973 and 1975, at the hands of Father Jacques Desgrandchamps. The man was 12 at the time. He has chosen to remain anonymous, but his lawyer, Robert Kugler, says a class action lawsuit was chosen in order to allow other potential victims to come forward. Mr. Kugler and his client are waiting on the approval of Quebec's Superior Court to proceed with the lawsuit, and are asking for nearly $2 million in damages. No criminal charges have been laid. 'Nobody ever assisted him' Kugler says his client was given alcohol and repeatedly sexually abused in Desgrandchamps's bedroom in a wing off limits to students. "Nobody ever asked the question. Nobody ever intervened. Nobody ever assisted him," Kugler said, adding the man has had a difficult and lonely life since, suffering from anxiety, depression, problems with drugs and alcohol. The Servite Order says it immediately suspended Desgrandchamps from his functions at the St. Anthony of Padua church in Ottawa, when it received the lawsuit application. Priest admits to having sex with some students In an interview with Radio-Canada, Desgrandchamps said he was upset, shattered and panicked by the allegations. He confirmed he taught at the school in the 1970s, but doesn't know who filed the motion. He also admitted to having sex with some students when he was a teacher. "There was no violence, it was a search for consolation. It's also maybe, eventually, of being turned on by children," Desgrandchamps told Radio-Canada. He admitted to having done "silly things" but that he believed he was being targeted because of "representing a certain authority to them, a certain way of life and they'll try to ruin you," Desgrandchamps said of the allegations. Diocese commits to safe space In a statement, the Archdiocese of Ottawa said it is committed to establishing "a safe environment in the church for minors and other vulnerable persons." "The Archdiocese of Ottawa encourages Catholics and all members of society to protect minors and all vulnerable persons," the Archdiocese said. "And commit to rising to the height of their responsibilities and obligations towards the victims in their search for justice and truth." School no longer run by priests The College Servite is no longer run by priests, but its religious roots can be felt from its name to the symbols that endow its facade. The College's director, Franáois Leblanc, said on Nov. 21 the school has been made aware of the application and that it's taking it seriously. "It's very sad. For me, it was a big surprise," Mr. Leblanc said. [GN] DESJARDINS ENTITIES: Quebec Court of Appeal OKs Investor Suit ------------------------------------------------------------- Daniel Grodinsky, writing for Mondaq, reports that in Asselin v. Desjardins Cabinet de services financiers inc., the Quebec Court of Appeal authorized a class action against two Desjardins investment entities relating to two under-performing investment funds. The appeal court's decision continues its pattern of reversing Quebec Superior Court decisions that have refused to authorize class actions. In so doing, the Quebec Court of Appeal may have further lowered the threshold at the authorization stage. The proposed class action relates to allegedly under-performing securities marketed by Desjardins Financial Services Firm and Desjardins Global Assets Management. Two of the investment funds were allegedly marketed as very secure and low risk products but, in actuality, are alleged to have been highly leveraged, resulting in the liquidation of a significant part of the assets needed to produce returns. As a result, class members are alleged to have received no return on their investment for up to seven years. The Court of Appeal's may further lower the bar for the authorization of class actions by inviting judges to be flexible, to consider the substance of the allegations over its form and to "read between the lines" of the plaintiff's allegations. In the reasons, the Court of Appeal noted that in order to avoid class actions monopolizing an already large share of court resources, judges should consider whether the allegations meet a prima facie case and therefore avoid an in-depth analysis of the merits of potential grounds of defense. The Court of Appeal also may have raised the threshold for class action defendants to submit relevant evidence to resist authorization. The Court of Appeal criticized the lower court judge for permitting the parties to present a fairly substantial evidentiary record at the authorization stage as it led to a more detailed analysis than was appropriate at the authorization stage. [GN] DESJARDINS FINANCIAL: Court Lowers Threshold for Class Action ------------------------------------------------------------- Luis Millan, writing for The Lawyer's Daily, reports that the threshold for class action certification in Quebec, long considered a class action haven, has become even lower following a Quebec Court of Appeal ruling that advises trial judges to be flexible, "read between the lines," and assess substance over form when examining class action applications, according to class action experts. In overturning another decision by the Quebec Superior Court that did not certify a class action, the Appeal Court held that trial judges are far too often ruling on the merits of the case rather than simply conducting a summary assessment that is flexible, liberal and generous, as espoused by the Supreme Court of Canada in a series of class action rulings. "If we do not want class actions to monopolize an unwarranted amount of court resources, limited resources, it would be useful under the current state of law that we avoid at the certification stage what should in reality belong to the merits," said Quebec Court of Appeal Justice Marie-France Bich in a 73-page ruling in Asselin v. Desjardins Cabinet de services financiers inc. 2017 QCCA 1673. Justices Marie St-Pierre and Claude C. Gagnon concurred with the reasons. The decision did not take class action experts by surprise, with one Montreal lawyer going so far as to describe it as the "second chapter" of the Boiron decision. A year ago, in Charles v. Boiron Canada inc. 2016 QCCA 1716, Justice Bich invited the legislature to reconsider the usefulness of the authorization stage in its current form given that the SCC has imposed such a lax test for certification. She added that she wonders whether such a low threshold justifies the expensive, time-consuming resources that is expended on class action authorizations. "The Quebec Court of Appeal is stuck with the SCC's low thresholds," remarked Jean-Michel Boudreau -- jmboudreau@imk.ca -- a Montreal class action lawyer with IMK LLP. "We see very few cases where authorization is refused, and of those that are not authorized, many are reversed on appeal. What the Court of Appeal seems to be saying is: 'There is no purpose to the authorization process yet it exists. And it is clogging up the courts because the parties are still making this a big thing even though the outcome is sort of known.'" In 2011 Ronald Asselin launched a class action against Desjardins Financial Services Firm (DFSF) and Desjardins Global Asset Management (DGAM) that alleged that two investment funds, advertised as very secure and low risk, actually involved significant leverage that resulted in the liquidation of the part of the funds dedicated to producing returns. As a result, investors allegedly have not received any returns since 2008 and will not receive any at the maturity date of their investments. The class action seeks the reimbursement of the funds invested plus interest and damages. Superior Court Justice Claude Dallaire refused to certify the action. She found that the syllogism had no "colour of right" and that the issues raised were not appropriate for a class action. Justice Dallaire also found that the class action suit against DGAM was inadmissible because of the existence of a release that was accepted by Ontario Superior Court in 2008 and 2009 in the Canadian asset-backed commercial paper market restructuring file. The Appeal Court overturned the ruling and held that the trial judge "liberally authorized" the parties to present fairly substantial evidence, and that the analysis that ensued led it to drift toward the merits of the case. Moreover the exception to dismiss required evidence of the release, which the judge could not admit or consider, said Justice Bich. "The Quebec Appeal Court held that the release has a long reach but it is not at the certification stage that is the time to decide whether it is a valid argument or one destined to fail," noted Serge Letourneau of Letourneau Gagne LLP, one of four law firms behind the class action. "The case hinges not on whether the firms committed a fault by selling asset-backed commercial paper. It was putting them [in the investment funds] after they were no longer good." Heeding guidance from the Supreme Court in Infineon Technologies AG v. Option consommateurs [2013] 3 SCR 600, among others, Justice Bich noted that the authorization process does not amount to a trial on the merits. Applicants, she added, must only demonstrate they have a prime facie case in light of the facts and not show that they have a claim that will probably succeed. However, while an applicant's allegations of fact are assumed to be true, it must be accompanied by some evidence to form an arguable case. "On the one hand if it is true one must not be satisfied by vagueness, generalities or imprecisions, one cannot turn a blind eye to allegations that are perhaps not perfect, but one in which its true sense nevertheless emerges clearly," said Justice Bich. "One has to read between the lines." Montreal class action lawyer Jean Saint-Onge -- JSaintOnge@blg.com -- is uneasy with this finding. "The problem I have with that is that the legislator has made it easy for the class action plaintiff," said Mr. Saint-Onge, senior counsel at Borden Ladner Gervais LLP. "All they have to do is allege specific facts. That's all. If in addition to that, you reduce their obligation to a point where you can allege anything or allege something superficial but the judge must be able to read between the lines, it lightens the threshold for the plaintiff even more than it already is." Justice Bich also seems to have increased the threshold for class action defendants to submit "relevant evidence." Under article 574 of the Code of Civil Procedure, an application for authorization may only be contested orally and the court may allow relevant evidence to be submitted. Often, class action defendants use article 574 to examine the class action representative or to file evidence to counter the allegations made by the plaintiff, explained Mr. Saint-Onge. But Justice Bich now says that it should be "limited" to contest implausibilities or falsehoods. "In other words, the allegations must be flagrantly inexact and there must be incontestable certainty that that is the case," said Mr. Saint-Onge. "That I think increases the burden on defendant who wishes to submit relevant evidence by virtue of article 574. I'm pretty sure this is novel." The decision has the potential of spelling the end of out-of-court settlements, stated class action experts. "The real battle is going to be moving more and more in Quebec towards the trial on the merits," said Boudreau. "We were seeing a lot of cases settle after authorization, but one would now think that the true debate will be postponed to the actual trial." Mr. Saint-Onge concurred. He said there was a time when authorization "really" meant something. It was an incentive for defendants to sit down at the table and negotiate. But the flexible, liberal and generous approach espoused by the Quebec Appeal Court has diminished the leverage that class action plaintiffs used to have if they had their case certified, said Saint-Onge. Mr. Letourneau has said his client has not held any out-of-court negotiations. "The defendants do not seem to be open to that," remarked Letourneau. The threshold for class action certification in Quebec, long considered a class action haven, has become even lower following a Quebec Court of Appeal ruling that advises trial judges to be flexible, "read between the lines," and assess substance over form when examining class action applications, according to class action experts. [GN] DOCTORS CENTER: Faces "Araujo" Suit in District of New Jersey ------------------------------------------------------------- A class action lawsuit has been filed against Doctors Center Management Corporation. The case is styled Susy Araujo individually, and on behalf of all others similarly situated, Plaintiff v. Doctors Center Management Corporation and University Physician Associates of New Jersey, Inc., Defendants, Case No. 2:17-cv-12883 (D.N.J., December 11, 2017). Doctors Center Management Corporation is a management service located in Newark, New Jersey.[BN] The Plaintiff appears PRO SE. DOLLAR TREE: Wins Jury Verdict in Electronic Wage Settlement Suit ----------------------------------------------------------------- Stephen L. Taeusch and Reanne Swafford-Harris, writing for Mondaq, reports that on November 7, 2017, after a four-day trial, a federal jury in Los Angeles, California returned a verdict in favor of Dollar Tree Stores, Inc. in a class action filed against the company by former employee Francisca Guillen. The case was pending in the Central District of California before Hon. Michael W. Fitzgerald. The plaintiff did not dispute that Dollar Tree's wage statements included all of the information required by California Labor Code section 226(a), California's wage statement statute. Nor did she dispute that the paper wage statements accompanying Dollar Tree's paychecks complied with California law. Instead, she alleged that store employees who elected to receive their wages by direct deposit -- and who could only receive electronic wage statements - - did not have easy enough access to those wage statements because they could only be accessed from store cash registers. Labor Code section 226(a) requires that wage statements be issued "in writing" and that deductions be recorded "in ink or other indelible form." In 2006, California's Labor Commissioner issued an opinion letter regarding the circumstances in which employers can issue electronic wage statements while still complying with these requirements. According to the opinion letter, California employers may provide employees with electronic wage statements as long as: * Employees have the option to elect to receive wage statements on paper; * The electronic wage statements contain all of the information required by Labor Code section 226(a); * The employer retains pay records for at least three years and employees retain access to them; * Safeguards are in place to protect the confidentiality of employees' information; and * Employees who receive electronic wage statements have "the ability to easily access the information and convert the electronic statements into hard copies at no expense to the employee." The plaintiff contended that Dollar Tree failed to satisfy this last requirement because store employees paid by direct deposit could only access their wage statements through in-store cash registers and could not access them over the Internet, a limitation she claimed was particularly burdensome for employees who were away from work. In pre-trial briefing, the plaintiff conceded that there was "no hard and fast minimum standard for 'easy' access to electronic wage statements," but she contended that the "obvious takeaway" from the Labor Commissioner's opinion letter and earlier court rulings was that "the now-ubiquitous Internet by far is the most convenient, and likely only, means available to gain easy access to electronically delivered wage statements." She took the position that "any mode of delivery of electronic wage information that does not take advantage of the Internet simply cannot, from a comparative standpoint, be considered 'easy.'" Judge Fitzgerald's instructions to the jury explained that Dollar Tree could be liable for wage statement violations if "employees did not retain easy access" to their wage statements. The jury instructions also explained that the term "easy access" does not have any special legal meaning but that jurors should use their ordinary understanding of the term in deciding Dollar Tree's liability. Ruling in Dollar Tree's favor, the jury evidently concluded that the company provided its store employees with easy enough access to their wage statements by making them available through stores' cash registers. Although Dollar Tree prevailed at trial, this case is yet another reminder that employers' practices with respect to wage statements are highly scrutinized. Because wage statement claims are susceptible to class action treatment -- and because prevailing class action plaintiffs can recover up to $4,000 in penalties per affected employee (not to mention attorney's fees) -- even technical violations of California's wage statement requirements can create significant legal exposure. Employers should confirm that their wage statements contain all of the required information and should also ensure that employees who elect to receive electronic wage statements have easy access to them and the ability to print them. [GN] DOLLAR TREE: Sheppard Mullin Attorneys Discuss Court Ruling ----------------------------------------------------------- Stephen L. Taeusch, Esq. -- staeusch@sheppardmullin.com -- and Reanne Swafford-Harris, Esq. -- rswafford- harris@sheppardmullin.com -- of Sheppard, Mullin, Richter & Hampton LLP, in an article for The National Law Review, wrote that on November 7, 2017, after a four-day trial, a federal jury in Los Angeles, California returned a verdict in favor of Dollar Tree Stores, Inc. in a class action filed against the company by former employee Francisca Guillen. The case was pending in the Central District of California before Hon. Michael W. Fitzgerald. The plaintiff did not dispute that Dollar Tree's wage statements included all of the information required by California Labor Code section 226(a), California's wage statement statute. Nor did she dispute that the paper wage statements accompanying Dollar Tree's paychecks complied with California law. Instead, she alleged that store employees who elected to receive their wages by direct deposit -- and who could only receive electronic wage statements - - did not have easy enough access to those wage statements because they could only be accessed from store cash registers. Labor Code section 226(a) requires that wage statements be issued "in writing" and that deductions be recorded "in ink or other indelible form." In 2006, California's Labor Commissioner issued an opinion letter regarding the circumstances in which employers can issue electronic wage statements while still complying with these requirements. According to the opinion letter, California employers may provide employees with electronic wage statements as long as: -- Employees have the option to elect to receive wage statements on paper; -- The electronic wage statements contain all of the information required by Labor Code section 226(a); -- The employer retains pay records for at least three years and employees retain access to them; -- Safeguards are in place to protect the confidentiality of employees' information; and -- Employees who receive electronic wage statements have "the ability to easily access the information and convert the electronic statements into hard copies at no expense to the employee." The plaintiff contended that Dollar Tree failed to satisfy this last requirement because store employees paid by direct deposit could only access their wage statements through in-store cash registers and could not access them over the Internet, a limitation she claimed was particularly burdensome for employees who were away from work. In pre-trial briefing, the plaintiff conceded that there was "no hard and fast minimum standard for 'easy' access to electronic wage statements," but she contended that the "obvious takeaway" from the Labor Commissioner's opinion letter and earlier court rulings was that "the now-ubiquitous Internet by far is the most convenient, and likely only, means available to gain easy access to electronically delivered wage statements." She took the position that "any mode of delivery of electronic wage information that does not take advantage of the Internet simply cannot, from a comparative standpoint, be considered 'easy.'" Judge Fitzgerald's instructions to the jury explained that Dollar Tree could be liable for wage statement violations if "employees did not retain easy access" to their wage statements. The jury instructions also explained that the term "easy access" does not have any special legal meaning but that jurors should use their ordinary understanding of the term in deciding Dollar Tree's liability. Ruling in Dollar Tree's favor, the jury evidently concluded that the company provided its store employees with easy enough access to their wage statements by making them available through stores' cash registers. Although Dollar Tree prevailed at trial, this case is yet another reminder that employers' practices with respect to wage statements are highly scrutinized. Because wage statement claims are susceptible to class action treatment -- and because prevailing class action plaintiffs can recover up to $4,000 in penalties per affected employee (not to mention attorney's fees) -- even technical violations of California's wage statement requirements can create significant legal exposure. Employers should confirm that their wage statements contain all of the required information and should also ensure that employees who elect to receive electronic wage statements have easy access to them and the ability to print them. [GN] EQUIFAX INC: Faces New Class Action Over Data Breach in Atlanta --------------------------------------------------------------- Kenneth R. Harney, writing for Washington Post, reports that the scenario that personal finance and credit experts feared most about the heist of consumer data from Equifax may already be underway: Criminals are using the stolen information to apply for mortgages, credit cards and student loans, and tapping into bank debit accounts, filing insurance claims and racking up substantial debts, according to a major new class-action suit. The suit pulls together dozens of individual complaints from consumers in all 50 states plus the District and suggests that cybercriminals aren't wasting time using the Social Security numbers, credit card accounts, driver's license numbers and other sensitive personal information they siphoned out of the credit bureau's reputedly secure databases on 145.5 million Americans. Filed in federal district court in Equifax's home territory of Atlanta, the suit is intended to create a single, giant national class action against the company. It alleges violations of federal and state laws and cites claims by more than 50 individual plaintiffs whose information was hacked that significant financial damage already is occurring. A few examples: Bridgette Craney of Virginia says that since the Equifax breach, she has experienced "multiple fraudulent charges" on five of her credit card accounts and had two fraudulent store credit accounts opened in her name. Robert Hunt of Georgia claims that multiple "unauthorized mortgages" have been applied for using his stolen information. Jennifer Wise of Vermont says she has been getting dunned by collection agencies for "loans that she never opened." Manuel Lucero of Mississippi says criminals have applied for student loans using his identity; Kyoko Yamamoto of New York claims "at least two" unauthorized charges have been made using her debit card; and Jasmine Guess of Louisiana says fraudulent insurance claims have been made using her stolen identity information. The suit, Allen et al v. Equifax, charges that the company "failed spectacularly" in its legal responsibilities to protect consumers' confidential data. It also alleges that the company failed to take steps to upgrade its security protocols, such as installing a remedial patch provided by a software maker, and then delayed informing consumers about the breach, thereby preventing them from taking steps to minimize the damage. [Theft of Equifax data could lead to years of grief for home buyers and mortgage applicants] Through Equifax's negligence, according to the suit, cybercriminals gained access to data that now "permits thieves to create fake identities, fraudulently obtain loans, swipe tax refunds and destroy" consumers' creditworthiness. Among the most vulnerable potential and actual victims: home buyers and mortgage applicants, who "tend to have significant information on file with credit bureaus" and as a result are "especially at risk" for ID theft after the Equifax data breach. An Equifax representative had no comment on the litigation. Lawyers representing the individual plaintiffs also declined to comment. The potential size of the class represented by the suit is enormous -- "all residents of the United States whose personal information was compromised as a result of the data breach announced by Equifax." The allegations include violations of the federal Fair Credit Reporting Act, the Federal Trade Commission Act and state consumer protection laws as well as rules regarding deceptive practices and data breaches, all of which are recounted in the 323-page filing. The suit is particularly harsh in its criticism of Equifax's alleged failures to heed red flags indicating that its systems were not secure. In April 2017, according to the suit, cyber-risk analysis firm Cyence rated the probability of a security breach at Equifax at 50 percent in the next 12 months. Credit analytics firm FICO gave Equifax low marks on data protection: an enterprise security score around 550 on a scale of 300 to 850. In 2014, Equifax "left private encryption keys on its server," potentially allowing hackers to decrypt sensitive data, according to the suit. How might this suit affect you? If you own a home, have a mortgage or received information from Equifax that your files were accessed, you are probably part of the class. You needn't do anything to join. Keep in mind, though: The case may sound like a slam-dunk, but it might not be. Lawyers will need to demonstrate a link between plaintiffs' claims of identity theft and the Equifax breach, which may be challenging to prove. In the meantime, remember that it's not too late to get defensive. If you're like the vast majority of consumers who have not yet placed freezes on their files at Equifax, Experian, TransUnion and Innovis, consider doing so now. For information on how to proceed, go to consumer.ftc.gov/articles/0497-credit-freeze-faqs. [GN] EQUIFAX INC: Hit with Suit by Windsor County Woman -------------------------------------------------- Mike Donoghue, writing for Valley News, reports that a Windsor County woman has filed a federal lawsuit against Equifax over its massive data breach that put private financial records in peril for at least 143 million Americans that had their personal information stolen during the summer. Shirley Cole, who has lived in Ascutney for several years, along with Sandra Barrett, of Highgate Center, Vt., filed the lawsuit seeking unspecified compensatory damages and restitution from the massive consumer credit reporting agency. The Windsor and Franklin county women also are asking a judge in U.S. District Court in Rutland to declare the case a class action lawsuit to include all other Vermonters similarly affected by the breach. As of Sept. 30, there have been more than 240 class action lawsuits filed against the company since it reported the breach earlier in September. Vermonters have been placed "at an imminent, immediate and continuing increased risk of harm from identity theft and identity fraud," the two women note in the lawsuit. Equifax, including co-defendant Equifax Information Services, failed to alert millions of Americans about the data breach until Sept. 7 -- about six weeks after the company became aware of the major incident, the plaintiffs maintain. They said the breach began in May and was uncovered on July 29. The multi-billion dollar corporation based in Atlanta responded to the lawsuit with a statement through a spokeswoman last week. "We cannot comment on pending litigation, but want to reassure consumers that we are remaining focused on helping them to navigate this situation and provide the best customer support possible. We are listening to issues consumers have experienced and their suggestions, which are helping to further inform our actions as we continue to improve this process," the Equifax statement said. In a quarterly filing with the Securities and Exchange Commission on Sept. 30, Equifax painted a bleak picture. While the company is taking steps to remediate the breach, the problem could happen again, it said. The company, in the filing, wrote, "We cannot assure that all potential causes of the incident have been identified and remediated and will not occur again. Because our products and services involve the storage and transmission of personal information of consumers, we will continue to be routinely targeted by outside third parties, including technically sophisticated and well-resourced bad actors attempting to access or steal the data that we store." It goes on to say, "If we experience additional breaches of our security measures, sensitive data may be accessed, which could cause us significant additional legal and financial exposure and damage to our reputation that could have a material adverse effect on our business." The company will need to file a written response to the lawsuit by early next month. The stolen data included names, addresses, Social Security numbers, birth dates and in some instances, driver's license numbers, according to the 39-page lawsuit. It says credit card numbers for about 209,000 U.S. consumers, along with other personal identifying information for another 182,000 Americans were accessed. "The data breach was the inevitable result of Equifax's inadequate approach to data security and the protection of the (Personal Identifying Information) that it collected during the course of its business. Defendants knew and should have known of the inadequacy of their own data security," the lawsuit claims. The company also had three similar cybersecurity breaches on smaller scales in 2013, 2016 and in January of this year, the plaintiffs maintain. "Privacy researchers and fraud analysts have called this attack 'as bad as it gets,' " the lawsuit noted. It added that on a 1-to- 10 scale in terms of risk to consumers, "it is a 10." Cole and Barrett maintain they have invested considerable personal time monitoring accounts and taking other steps to protect their credit ratings and accounts from improper use of their stolen data. They said they had entrusted Equifax -- one of the three largest consumer credit reporting agencies in the United States -- with their personal information. "While defendants took no steps at that time to inform the public in the interim, defendants did not hesitate to protect themselves; at least three Equifax senior executives, including CFO John Gamble, upon information and belief, sold shares worth $1.8 million in the days following the data breach," the lawsuit said. The stolen information is in the hands of third parties that "now possess keys that unlock consumers' medical histories, bank accounts, employee accounts and more. Abuse of sensitive credit and personal information can result in considerable harm to victims of security breaches," the lawsuit said. "Criminals can take out loans, mortgage property, open financial accounts and credit cards in a victim's name, obtain government benefits, file fraudulent tax returns, obtain medical services and provide false information to police during an arrest, all under the victim's name," the filing noted. The seven-count lawsuit alleges Equifax had both willful and negligent violations of the Federal Fair Credit Reporting Act and violation of the Vermont Consumer Protection Act. The suit also outlines two counts of negligence and one of unjust enrichment by getting paid to protect information, but failing to provide the proper services. The women are represented by Woodstock lawyer Richard Windish with out-of-state assistance from attorney Kevin Sharp of Nashville, Tenn. The Nashville law firm has filed 35 Equifax lawsuits and plans to file a handful more in the coming weeks, said Jamie Moss, a spokesman for Sanford, Heisler Sharp. Because the cases are filed throughout the United States, the federal court is classifying its status as a multi-district litigation, which provides for a way to speed the process of handling complex cases, such as disasters and product liability situations. The first meeting of lawyers involved in the MDL is scheduled in St. Louis on Nov. 30, Moss said. The federal lawsuit is unrelated to a small claims suit filed in Orange County by Jessamyn West, a librarian from Randolph. The company has denied her allegations that it mishandled the recent data breach and a hearing is scheduled for Jan. 17 in Chelsea. [GN] ERIN ENERGY: Obtains Favorable Ruling in Stockholders' Suit ----------------------------------------------------------- Annette E. Becker, Esq., and William H. Smith, Esq., of K&L Gates, in an article for The National Law Review, wrote that in Lenois, et al. v. Lawal, et al., and Erin Energy Corporation, C.A. No. 11963-VCMR (Del. Ch. November 7, 2017), plaintiff Robert Lenois ("Plaintiff") on behalf of himself and other stockholders brought a class action for breach of fiduciary duty against controllers and the board of directors of Erin Energy Corporation ("Erin") for approving what was claimed to be an unfair transaction. The Delaware Court of Chancery dismissed the class action suit under Court of Chancery Rule 23.1, holding that the directors were protected by an exculpatory charter, and Plaintiff failed to meet the heightened pleading standard for demand futility set by the second prong of Aronson v. Lewis, 473 A.2d 805 (Del. 1984). Although Plaintiff pled with particularity that one director acted in bad faith, the complaint did not allege facts sufficient to establish that a majority of the board faced a substantial likelihood of liability for non-exculpated claims. This case arises out of transactions between an oil and gas exploration company Erin Energy Corporation ("Erin"), a Delaware corporation. Plaintiff was a stockholder of Erin. Defendant Lawal was Erin's Chairman and Chief Executive Officer. Lawal and CAMAC Energy Holdings Limited ("CEHL"), a holding company controlled by Lawal and his family, were Erin's controlling stockholders. The other defendant directors were members of Erin's board. In the contested transaction, Public Investment Corporation Limited ("PIC"), a third-party entity, invested in Erin in exchange for Erin stock. Erin then transferred to a different Lawal-affiliated company, Allied Energy Plc ("Allied"), the majority of PIC's cash investment, Erin stock, and other consideration in exchange for select Allied oil mining rights (the "Transactions"). The other Erin stockholders received additional shares. Plaintiff brought a derivative class action alleging breach of fiduciary duty claims against Lawal, CEHL, and the board of directors for approving the allegedly unfair Transactions. Before filing suit, Plaintiff did not make a demand on the board under Court of Chancery Rule 23.1. Instead, Plaintiff contended that demand was futile under the second prong of Aronson because Lawal acted in bad faith, or in the alternative, because the board was inadequately informed and breached its duty of care. In the complaint, Plaintiff claimed that Erin allegedly overpaid by between $86.2 million and $198.8 million for Allied's assets. In addition, Lawal not only initiated the transaction process and acted as Erin's sole negotiator with PIC, but also acted as Allied's sole negotiator with Erin as a counterparty. Lawal was a controller of both Erin and Allied at the time through CEHL, which had 100% ownership of Allied and 58.85% ownership of Erin before the Transactions. Plaintiff also asserted direct action for breach of fiduciary duties against the board and Lawal separately, arguing that Lawal aided and abetted the board's breach of the duty of disclosure through disclosure violations in the transaction proxy. The defendants agreed that the case fell under the second prong of Aronson. The defendants countered, however, that the Rule 23.1 demand requirement was not excused for futility merely because Lawal was an interested controller at the time the Transactions were approved. The defendants argued that a showing of demand futility requires a holistic assessment of the board's culpability in light of the exculpatory provision in Erin's charter. The defendants contended that Plaintiff failed to plead non-exculpated claims concerning a majority of the board, offering instead only non-exculpatory claims against a single director -- Lawal. The defendants also moved to dismiss the direct disclosure claims under Court of Chancery Rule 12(b)(6), arguing that the alleged disclosure claims damaged the Company, not the stockholders. The Court granted the defendants' motion to dismiss as to both the derivate and direct breach of fiduciary duty claims. The Court reached this conclusion by first clarifying the Court of Chancery's demand futility jurisprudence, including the Delaware Supreme Court's decisions in both Rales v. Blasband, 634 A.2d 927 (Del. 1993) and Aronson. The Court explained that the Aronson and Rales tests are complementary versions of the same inquiry: whether the board's capacity for impartiality was compromised by the threat of liability, more specifically, whether there was reason to doubt the directors' ability to exercise their business judgment in responding to a demand because those directors face a substantial likelihood of personal liability from litigation. In light of this analysis, the Court held first that where an exculpatory charter provision protects the board, demand futility must be established under the Aronson second prong by pleading that a majority of directors would have faced a substantial likelihood of liability for non-exculpated claims had they considered demand. Neither breach of fiduciary duties by the board nor a self-dealing and controlling stockholder alone is sufficient to establish demand futility. Applying this standard, the Court found that the complaint failed to plead particularized facts showing that a majority of individual directors could not consider demand impartially. Although the complaint sufficiently alleged that Lawal acted in bad faith, Plaintiff failed to raise a reason to doubt the honesty and good faith of the reaming defendant directors. The defendant directors established a special committee to push back on Lawal's timeline, hired and relied on the expert advice of an investment banker and legal counsel, and negotiated more favorable terms for the Erin stockholders at several points. In addition, the special committee sought approval from the entire Board (excluding the controller and a conflicted director), issued a proxy statement to stockholders, and received a majority-of-the-minority stockholder approval. The Court found that these actions did not evince conscious and intentional disregard of fiduciary duty rising to the level of bad faith. Because Plaintiff failed to plead bad faith violations by a majority of the Erin board, the Court dismissed the claims for failing to meet the demand futility threshold under Rule 23.1. The Court similarly dismissed the direct breach of fiduciary duty claims under Rule 12(b)(6). Plaintiff requested rescissory damages to be paid to the Erin stockholders for the alleged duty of disclosure violations. The Court denied the direct claim and ruled that the alleged injury and the damages belonged to Erin and not the Erin stockholders . The case is Robert Lenois, et al., v Kase Lukman Lawal, et al., and Erin Energy Corp. [GN] FORD MOTOR: WeirFoulds Discusses Ruling on Motion to Intervene -------------------------------------------------------------- Hayley Peglar, Esq. -- hpeglar@weirfoulds.com -- of WeirFoulds LLP, in an article for Lexology, wrote that in Romeo v. Ford Motor Co., a recent decision of the Ontario Superior Court of Justice, Justice E.M. Morgan considered the principles applicable to a motion to intervene in a certification motion in a class proceeding. This case offers a helpful reminder of first principles applicable to interventions under the Class Proceedings Act, S.O. 1992, c. 6 ("CPA"). The motion concerned two proposed multi-jurisdictional class actions -- one in Saskatchewan and another in Ontario -- on behalf of people in Canada who purchased or leased a Ford Focus or Ford Fiesta equipped with a dual-clutch transmission. The representative plaintiffs in the proposed class action in Saskatchewan (the "Moving Parties") sought leave to intervene in the certification motion in the proposed Ontario class action. Justice Morgan found that the proposed Saskatchewan class action raised "essentially the same claim" as the proposed Ontario class action. The representative plaintiffs in the proposed Ontario class action (the "Plaintiffs") had previously been granted standing to intervene in the Saskatchewan certification motion. The Saskatchewan certification motion was heard roughly six months before the motion to intervene in the Ontario certification motion, and was still under reserve at the time Justice Morgan heard the motion. The parties agreed that rule 13 of the Rules of Civil Procedure (which ordinarily governs intervenors) is inapplicable to a certification motion governed by the CPA. The case highlights a distinction between the Ontario and Saskatchewan class action regimes with respect to intervention. Subsection 6(2) of Saskatchewan's Class Actions Act, S.S. c. C- 12.01 expressly allows out-of-province parties to participate in a Saskatchewan certification hearing. In contrast, Ontario's CPA does not contain a parallel provision. Justice Morgan accepted the Plaintiffs' argument that it is for the respective legislatures of each province to determine on their own and for their own policy reasons how class certification is to proceed. The Moving Parties argued that the Court's obligation, under subsection 5(1)(d) of the CPA, to assess whether "the class proceeding would be the preferable procedure for the resolution of the common issues" incorporates a need to consider the position of claimants in an out-of-province action and requires an evaluation of the "comparative virtues" of the two proposed class actions. The Plaintiffs opposed the intervention on two grounds: (1) that the Moving Parties had no standing to seek leave to intervene; and (2) that the Moving Parties had nothing to add to the Ontario proceeding and would not play a productive role in contributing to the analysis on the question of certification. On the question of standing, Justice Morgan noted that the CPA does not contain a prohibition on a non-party having standing to intervene. Consequently, the broad inherent jurisdiction of the Superior Court of Justice to govern its own processes permits the Court to grant standing if it is just and equitable to do so. Justice Morgan concluded that he would be willing to exercise the Court's inherent jurisdiction to grant standing if the Moving Parties otherwise qualified as proper intervenors. However, Justice Morgan denied leave to intervene on the second ground raised by the Plaintiffs, i.e. that the Moving Parties would add nothing to the certification motion. In arguing that the Moving Parties had nothing to contribute to the certification proceedings, the Plaintiffs pointed to the fact that the Moving Parties did not indicate in their materials what position they would take on certification if they were permitted to intervene. The Moving Parties confirmed that they "were keeping their options open in terms of specific ruling sought". Citing Fairview Donut Inc. v. TDL Group Corp., Justice Morgan turned to a first principles analysis, noting that motions to intervene require not only a consideration of the proposed intervenor's interest in the issue between the parties, but also an evaluation of the likelihood that the intervenor can make a useful addition to the resolution of the issues before the Court without causing injustice to the parties. Justice Morgan concluded that because the Saskatchewan action had not yet been certified, the Moving Parties would potentially be arguing for the exclusion of some part of the class from a claim in either jurisdiction. As such, the proposed intervention was effectively aimed at potentially derailing the rights of a portion of the class, rather than advancing them. Moreover, he found that the intervenors had nothing to contribute on the question of certification because the opt-out provision of the CPA provides a complete remedy for any class members (including the Saskatchewan- based members) who might dissent from the proceeding being certified as a class action. Justice Morgan confirmed the holding in Fairview Donut that allowing dissenting putative class members to bypass the opt-out provision by instead intervening at the certification stage would cause undue delay and expense, and would be antithetical to the procedure contemplated under the CPA. [GN] FRANKLIN COUNTY, PA: Sheriff Dropped from Privacy Class Action -------------------------------------------------------------- Mark Scolforo, writing for Associated Press, reports that concealed weapon permit-holders cannot sue a central Pennsylvania sheriff over permit notices he sent out on postcards, which they say violated their privacy rights, the state Supreme Court ruled on Nov. 22. The justices unanimously dismissed the former sheriff of Franklin County from what could become a class-action case, although other defendants remain. The plaintiffs claim the postcards, informing people about permit approvals, denials, revocations and renewals, violate privacy rules in the Uniform Firearms Act which carry civil penalties for violations. The decision reverses a finding by the Commonwealth Court, which said last year that the sheriff was not protected from lawsuits by the concept of "high public official immunity." "We decline to hold the General Assembly implicitly abrogated immunity for the sheriff through the use of general, undefined terms," wrote Justice Kevin Dougherty. "We recognize permitting such implicit abrogation of high public official immunity would undermine the purpose and goal of the doctrine, the value of which has been consistently upheld and recognized by this court." A lawyer for the four anonymous people who are suing said they plan to ask the justices for reconsideration or re-argument about the constitutionality of high public official immunity. The decision released on Nov. 22 said explicitly it concerned the law and was not decided on constitutional grounds. Josh Autry, who represents the former sheriff, Franklin County and the sheriff's office, said the case will return to county court. Outstanding issues include whether the case will be certified as class-action and how far back the statute of limitations goes. At issue is state law that allows disclosure of concealed carry license applicants' information only to courts or criminal justice agencies. Violations carry civil damages of $1,000 per occurrence as well as legal fees, and triple damages for those who can show how the policy actually harmed them. The plaintiffs believe more than 10,000 licensees could be covered by the case. A county judge previously had dismissed the entire case before it was revived by Commonwealth Court. [GN] FREDERIC I WEINBERG: Faces "Bouie" Suit in E. Dist. Penn. --------------------------------------------------------- A class action lawsuit has been filed against The Law Offices of Frederic I. Weinberg & Associates, P.C. The case is styled Michael Bouie, individually and on behalf of all others similarly situated, Plaintiff v. The Law Offices of Frederic I. Weinberg & Associates, P.C., Frederic I. Weinberg, Jefferson Capital Systems, LLC, Defendants, Case No. 2:17-cv-05537-GEKP (E.D. Penn., December 11, 2017). The Law Offices of Frederic I. Weinberg & Associates, P.C. is engaged in law firm.[BN] The Plaintiff is represented by: CARY L. FLITTER, Esq. FLITTER MILZ, P.C. 450 N. NARBERTH AVE, SUITE 101 NARBERTH, PA 19072 Tel: (610) 822-0782 Fax: (610) 667-0552 Email: cflitter@consumerslaw.com GIGAMON INC: Mur Files Suit Over Onerous Merger Deal ---------------------------------------------------- Richard Sebastiaan Mur, individually and on behalf of all others similarly situated, Plaintiff, v. Gigamon Inc., Corey M. Mulloy, Paul A. Hooper, Michael C. Ruettgers, John H. Kispert, Paul J. Milbury, Ted C. Ho, Robert E. Switz, Joan A. Dempsey, Dario Zamarian, Arthur W. Coviello, Jr., Elliott Associates, L.P., Elliott Management Corporation, Elliott International, L.P., Elliott International Capital Advisors Inc., The Liverpool Limited Partnership, Evergreen Coast Capital, Ginsberg Holdco, Inc., And Ginsberg Merger Sub Inc., Defendants, Case No. 2017-0856, (D. Del., November 30, 2017), seeks to enjoin defendants and all persons acting in concert with them from proceeding with, consummating, or closing the acquisition of Gigamon Inc. by Ginsberg Holdco, Inc. and its wholly-owned subsidiary, Ginsberg Merger Sub, Inc., Elliott Management Corporation, rescinding it and setting it aside or awarding rescissory damages in the event defendants consummate the merger, costs of this action, including reasonable allowance for attorneys' and experts' fees and such other and further relief under the Securities Exchange Act of 1934. Pursuant to the terms of the merger agreement, Gigamon stockholders will receive $38.50 in cash for each share they own. Plaintiff is, and has been at all times relevant hereto, a continuous stockholder of Gigamon. Mur claims that the said price does not reflect Gigamon's intrinsic value or the value of the company as the target of a full and fair sales process. Defendants also agreed to certain deal protection devices in the merger agreement that will prevent other bidders from making successful competing offers, including a termination fee of up to $47.2 million if it terminates the proposed buyout. Gigamon develops innovative solutions that deliver visibility and control of data-in-motion traversing enterprise, federal, and service provider networks. [BN] Plaintiff is represented by: Juan E. Monteverde, Esq. Miles D. Schreiner, Esq. MONTEVERDE & ASSOCIATES PC The Empire State Building 350 Fifth Avenue, 59th Floor New York, NY 10118 Telephone: (212) 971-1341 Email: jmonteverde@monteverdelaw.com mschreiner@monteverdelaw.com - and - Michael J. Palestina, Esq. Christopher R. Tillotson, Esq. KAHN SWICK & FOTI, LLC 206 Covington Street Madisonville, LA 70447 Tel: (504) 455-1400 Fax: (504) 455-1498 Email: michael.palestina@ksfcounsel.com christopher.tillotson@ksfcounsel.com - and - Blake A. Bennett, Esq. COOCH AND TAYLOR, P.A. The Brandywine Building 1000 West Street, 10th Floor Wilmington, DE 19801 Tel: (302) 984-3800 GOLDEN STATE: Judge Denies Motion to Dismiss Privacy Class Action ----------------------------------------------------------------- Ross Todd, writing for The Recorder, reports that a federal judge in Oakland has breathed new life into a lawsuit against the Golden State Warriors and a company that it partnered with to deliver targeted advertising to fans via its Android app. U.S. District Judge Jeffrey White of the Northern District of California on Nov. 20 denied the National Basketball Association team's motion to dismiss a proposed privacy class action that claims the Warriors Android app acts essentially as a bug, recording fans' private conversations while it runs in the background. The Warriors app uses so-called proximity technology to serve location-specific ads and promotions on game days. The app accesses microphones on mobile devices to listen for unique audio signals produced by beacons placed around the team's home arena to determine fans' locations -- something the team has claimed in court papers nearly 90 percent of Major League Baseball teams and half of NBA teams do to serve up location-specific promotions in their home stadiums. Lawyers at Edelson PC sued the team in August 2016 alleging that the app intercepted fan communication in violation of the federal Wiretap Act, which carries statutory penalties of $10,000 per violation. Judge White in February largely sided with the team and co- defendants in an earlier motion to dismiss finding that Edelson lawyers had failed to offer details that would support their theory that the app used the content of LaTisha Satchell's conversations rather than her location to conjure targeted ads. But in the Nov. 20 order, Judge White found that Satchell's lawyers had put forward "at least four instances where she had her phone with her, the app was running, and she had conversations about private matters, including nonpublic information during a business meeting and private financial matters." Michael Rhodes -- rhodesmg@cooley.com -- of Cooley, who represents the team and co-defendant Sonic Notify Inc., which developed the app's underlying beacon technology, declined to comment when reached by email on Nov. 20. A spokesman for the Warriors didn't immediately respond to an email message. Likewise, representatives of Sonic Notify could not immediately be reached. Edelson's Rafey Balabanian said in a phone interview on Nov. 20 that plaintiff had amended her complaint to show that she had carried her phone into otherwise private areas such as business meeting and her bedside table. "The reality is that she's able to allege that the app was running in the background when she was having private conversations," he said. "The bottom line is it's being recorded. There's all types of things in this world where you don't think something is being recorded." Raymond Ridder, the team's vice president of communications, cited team policy in saying the Warriors would have no comment. [GN] GOOGLE INC: Disputes Ex-Female Workers' Pay Discrimination Claims ----------------------------------------------------------------- Erin Mulvaney, writing for Corporate Counsel, reports that lawyers for Google Inc. argue a class action that accuses the company of pay discrimination casts too wide a net with overbroad claims of alleged gender inequities and unfair promotion opportunities for women. Google's attorneys at Paul Hastings are asking a San Francisco judge not to certify the would-be class in Ellis v. Google and to dismiss the complaint. The lawsuit, filed in September in Superior Court, accuses the Mountain View-based company of paying women at all levels less than men in comparable positions and assigning women lower-tier jobs. The case is moving forward amid wider scrutiny of the technology industry, including a federal investigation into Google itself, and broad questions about whether Silicon Valley companies have created barriers for female employees. A Google engineer made headlines this summer when he wrote a widely shared memo suggesting, in part, that women were not biologically suited for the tech industry. Google's attorneys called the class claims "generic" and said the number of would-be class members was "a moving target." "The class spans Google's entire California workforce, top to bottom," the attorneys wrote in court documents made available on Nov. 20. "The plaintiff complaint makes clear they seek to compare women to men in entirely different positions, at different levels, in different ladders and departments. They do not identify which titles, levels, or ladders they seek to compare, let alone provide a factual basis for why they contend employees in completely different positions and departments perform substantially similar or equal work." The lawsuit was built on an investigation by the Labor Department's Office of Federal Contract Compliance Programs. The department's initial findings alleged pay discrimination among the 21,000 employees at the company's headquarters at every level. A Google spokeswoman in September said the company has "extensive systems in place to ensure that we pay fairly." The company has also disputed the Labor Department's findings. The purported class of former and current employees is represented by the law firms Altshuler Berzon and Lieff Cabraser Heimann & Bernstein. The lawsuit was filed on behalf of three former Google employees, Kelly Ellis, Holly Pease and Kelli Wisuri, who said they believe they received fewer opportunities and less pay than their male counterparts. "While Google has been an industry-leading tech innovator, its treatment of female employees has not entered the 21st century," Kelly Dermody of Lieff Cabraser said at the time the lawsuit was filed. "This case seeks to ensure fairness for women at Google." Google argued that the plaintiffs' approach is "infeasible, inherently unmanageable and unfair" to the company. The attorneys argued that compensation decisions are quintessentially the type of individual decisions that do not provide a basis for a class action. Google argued that with tens of thousands of Google employees working at different locations, in different departments with different qualifications, the claims in the lawsuit are amorphous. The attorneys for the former Google employees cited the Labor Department's investigation in making their case against the company. An administrative law judge earlier denied the agency's request for broad discovery in that investigation. Google argued in its court papers that the Labor Department investigation is insufficient to prove plaintiffs' claims. The agency's findings at the company's headquarters, Google's attorneys argued, would be only a subset of the class sought in the lawsuit. "Only in Alice's looking-glass world could an adjudication that broad discovery is not warranted be used to allow plaintiffs to initiate a class action to obtain even broader discovery here," Google's attorneys said. [GN] HANOVER GREEK: "Montes" Seeks Overtime, Spread-of-Hours Pay, Tips ----------------------------------------------------------------- Miguel Lopez Montes, Gerardo Carretero And Valentin Vivar Cruz, individually and on behalf of others similarly situated, Plaintiffs, v. 11 Hanover Group LLC, 11 Hanover Square Corp., DG Hanover 11, LLC, Liberatos Brothers, LLC, Gerasimos Liberatos, Aristomenis Mihalatos, Christos Liberatos, Panagioti Liberatos and Fotios Liberatos, Defendants, Case 17-cv-09376 (S.D. N.Y., November 30, 2017), seeks unpaid minimum wages, overtime compensation, liquidated damages, prejudgment and post-judgment interest, unpaid spread-of-hours premium, unpaid agreed-upon- wages, redress for unlawful retention of tips, compensation for failure to provide wage notice at the time of hiring and failure to provide paystubs in violation of the Fair Labor Standards Act and New York Labor Laws. Defendants own, operate, or control a chain of Mediterranean restaurants under the name "11 Hanover Greek" where Plaintiffs were employed as a food preparers and ostensibly as food runners, working in excess of 40 hours per week, without appropriate minimum wage or overtime compensation for the hours that they worked. The complaint says the Defendants failed to maintain accurate recordkeeping of the hours worked, failed to pay Plaintiffs appropriately for any hours worked, either at the straight rate of pay or for any additional overtime premium. [BN] Plaintiff is represented by: Michael Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Tel: (212) 317-1200 Email: Faillace@employmentcompliance.com HOT SPRINGS, AR: Faces Class Action Over False Alarm Ordinance -------------------------------------------------------------- David Showers, writing for The Sentine-Record, reports that hot Springs is one of three cities named as a defendant in class action claims asserting fines authorized by false alarm ordinances violate property and due process rights granted by the state Constitution. Newoods Inc., which does business at ABC Block & Brick, 907 Spring St., filed a lawsuit in Garland County Circuit Court seeking to invalidate the ordinance adopted by the Hot Springs Board of Directors in 2006. Newoods is also suing for a refund of all false alarm fines and fees the prospective class paid over the last three years, compensatory damages and attorney fees. The company, which has 12 locations in Arkansas, filed the same claim against the cities of Little Rock and Fayetteville. The complaint filed by attorney Chris Corbitt, who is listed as Newoods' vice president, said the ordinance imposes an undue burden on property owners, making them solely responsible for false alarms when installation and monitoring companies can also be the cause. "Nationwide, the reliability rate is almost 6 percent," the filing said. "This means 94 percent or higher of all alarm signals are false alarms. The problem with alarm reliability and false alarms has persisted for decades." The complaint said the ordinance is vague, allowing the police department, in the absence of a clear standard enshrined in the city code, to determine whether an alarm is false. In addition to installation and monitoring companies, the complaint said false alarms can also be caused "by acts of God." "What's to say what a false alarm is?" Mr. Corbitt said. "Maybe a perpetrator came by and shook the door. Maybe a storm or faulty equipment caused it to go off." A fine is levied after five false alarms, with property owners paying $25 each for false alarms six through 10, $50 each for false alarms 11 through 15 and $100 for every one after that. A spreadsheet the city compiled at the request of the lead plaintiff's attorneys, and that The Sentinel-Record obtained through an Arkansas Freedom of Information Act request, showed the city assessed 264 businesses, churches and residences false alarm fines totaling $25,200 in 2014. Billing records obtained by the newspaper showed Tractor Supply Co. at 2307 Albert Pike Road has been fined the most since 2015, with $9,525 in fines levied for 129 false alarms through July 2017. CHI St. Vincent Hot Springs was fined $1,275 for 24 false alarms at its 1 Mercy Lane facility last year. St. Mary's Catholic Church was fined $375 for 15 false alarms in 2015 and $575 for 17 false alarms last year. The KFC at 114 Airport Road was fined $975 for 21 false alarms in 2015, and Las Americas Supermarket was fined $875 for 20 false alarms last year. The city fined ABC Block $125 for 10 false alarms from April to August of this year. Mr. Corbitt said the city presumes an alarm is false if the subsequent response doesn't turn up an intruder, a standard he said other calls for service aren't held to. "Maybe the alarm did it's job and scared them off, or they've left by the time the police get there," he said. "If someone sees an unusual guy creeping around their neighborhood, or something weird going on, and they call the police, does that citizen get a fine or invoice in the mail if the cops show up and can't find anyone?" Mr. Corbitt said he's using billing information obtained from the city to identify potential co-plaintiffs. [GN] HSBC: Slammed for Failing to Flag Ponzi Schemer ----------------------------------------------- Jeremy Shepherd, writing for North Shore News, reports that if a bank had done its duty, investors could have kept their money away from a Ponzi scheme. That's the claim from Jastram Properties Ltd., a North Vancouver company spearheading a class action lawsuit in B.C. Supreme Court accusing HSBC of failing to investigate fraud. That fraud was perpetrated by Virginia Tan, a West Vancouver businesswoman who garnered more than $30 million from investors based on a bridge loan company and factoring businesses, both of which were non-existent between 2011 and 2015. However, Jastram Properties' lawsuit targets two bank accounts Tan operated at HSBC between 2011 and 2013. One of the accounts was under her name and the other was under a company she controlled: Letan Investments. According to the lawsuit, Tan was depositing and withdrawing $1 million per month from the accounts. The deposits were large amounts in round numbers. The withdrawals were smaller cheques, also in round numbers, written to individuals. "These kinds of transactions are hallmarks of a Ponzi scheme," the lawsuit charges. The scheme carried on until early 2013 when HSBC became "concerned" about the nature of the activity and conducted a review, according to the claim. "HSBC knew, or concluded that it was reasonably likely, that Tan was using the HSBC Tan Accounts for fraudulent purposes," according to the claim. In March 2013, Tan stopped using the HSBC accounts for her Ponzi scheme. "The particulars of the circumstances surrounding the termination of activity . . . are best known to HSBC," according to the claim. The claim blasts HSBC for failing to notify authorities or to warn other financial institutions whose customers' money was being deposited in Tan's accounts. The lawsuit notes that Jastram Properties invested $2,962,000 prior to March 2013 as well as $3.45 million after April 2013. The North Vancouver company received a total of$1,798,566 in interest payments from Tan, putting them $4.6 million in the hole. Had HSBC "properly discharged its duty," investors would likely not have suffered financial losses after March 2013, according to the lawsuit. Jastram Properties is suing HSBC for damages. Tan admitted to fraudulently raising at least $30 million as part of a Ponzi scheme in a settlement agreement with the B.C. Securities Commission in April. Prior to 2011, Tan raised money from investors for short-term high-interest loans. But beginning in 2011, Tan stopped using investors' money for loans, instead paying them interest with money contributed by new investors. Tan would pay her investors at rates ranging from 12 to 24 per cent a year while encouraging them to renew their investments, according to the lawsuit. By late 2015, Tan stopped making interest payments. Tan has been banned from dealing in securities or promoting any activities connected to the stock market. HSBC has not yet responded to the lawsuit. None of the claims have been proven in court. [GN] HULU: Faces Class Action in Massachusetts Over ADA Violation ------------------------------------------------------------ The American Council of the Blind on Nov. 20 disclosed that a coalition of blind and visually impaired individuals and advocacy groups filed a nationwide class action on Nov. 20 against Hulu to end the video streaming company's ongoing exclusion of blind and visually impaired Americans. The lawsuit -- filed in the U.S. District Court for the District of Massachusetts -- challenges Hulu's violation of the Americans with Disabilities Act. Hulu, one of the largest online-streaming services in the country, offers thousands of shows and movies, including award-winning original content, to most customers at the click of a mouse. However, the company fails to provide audio description -- a separate audio track that blind and visually impaired people need in order to access the exclusively visual content of a show or movie -- for any streaming videos. Because Hulu fails to include audio description tracks on any of its streaming content, blind and visually impaired individuals cannot independently enjoy Hulu's video streaming services. Audio description is a separate audio track that, when activated, provides a verbal description of visual elements on screen, especially in scenes with no dialogue. The audio description track plays between pauses in dialogue. Hulu boasts an extensive library of live TV and on-demand movies and series -- including its Emmy-award winning original series, "The Handmaid's Tale" -- but currently excludes customers who are blind and visually impaired. In addition, Hulu's website and applications are not accessible to blind and visually impaired individuals who use screen readers to navigate the internet. A screen reader is software that converts the visually displayed content on the screen into audible, synthesized speech or outputs that information on a digital braille display. The American Council of the Blind, Bay State Council of the Blind, and blind individuals brought this action to end Hulu's discriminatory business practices. Disability Rights Advocates (DRA), a national nonprofit legal center, and the Disability Law Center (DLC), Massachusetts's Protection and Advocacy system, represent these individuals and organizations. Kim Charlson, President of the American Council of the Blind, said, "Movies and television are pillars of American culture. As delivery of such media transitions to video streaming services, it is critical that these platforms be accessible in order to ensure the inclusion of blind and visually impaired individuals in contemporary society." Rebecca Williford, Senior Staff Attorney at DRA, said, "Hulu is owned by a collection of some of the most powerful companies in the entertainment business and is itself one of the nation's most popular online streaming services. Its utter failure to provide access to individuals who are blind and visually impaired is astonishing." "BSCB members have been expressing their concerns about Hulu's lack of audio description for years now," said Brian Charlson, President of Bay State Council of the Blind, "and it is time that Hulu join with other industry streaming services out there and meet its obligations under the Americans with Disabilities Act." "As forms of entertainment evolve, equal access must transition to meet industry innovation. Equal access means the ability to fully use and enjoy all aspects of entertainment, just like everyone else," said Christine Griffin, Executive Director of DLC. Plaintiffs do not seek monetary damages, but seek only to achieve equal access to Hulu's services. A copy of this press release and the Complaint can be found at http://dralegal.org/press/nationwide-class-action-challenges- hulus-discrimination-blind-visually-impaired-individuals/. About Disability Rights Advocates (DRA) Founded in 1993, DRA -- http://www.dralegal.org-- is a leading national nonprofit disability rights legal center. Its mission is to advance equal rights and opportunity for people with all types of disabilities nationwide. DRA represents people with the full spectrum of disabilities in complex, system-changing, class action cases. DRA's prior cases advocating for accessible entertainment include Blanks v. AMC Theaters (2017) (reaching a settlement to improve audio description in AMC theaters nationwide), and negotiations with Netflix in 2016 that resulted in a settlement to provide audio description for Netflix's streaming and disc rental libraries, including "Netflix Originals." About Disability Law Center (DLC) The DLC -- http://www.dlc-ma.org-- is the Protection and Advocacy system for Massachusetts and is authorized under federal law to protect and advocate for the legal rights of individuals with disabilities in Massachusetts. DLC worked with Bay State Council of the Blind in a series of negotiations with Fleet Bank, Sovereign Bank, and Citizens Bank to ensure that their ATMs, websites, and other banking services were fully accessible to individuals who are blind or visually impaired. About American Council of the Blind (ACB) ACB -- http://www.acb.org-- works to increase the independence, security, equality of opportunity, and quality of life, for all people who are blind or visually impaired. ACB advocates for policies that provide services, opportunities, infrastructure, and equipment that are necessary for an inclusive society, in federal, state, and local governments, and among service providers and industry. About Bay State Council of the Blind (BSCB) BSCB -- http://www.acbofma.org-- is a membership organization of blind, visually impaired, and sighted individuals committed to an enhanced quality of life for Massachusetts' residents who are blind or visually impaired. BSCB convenes meetings and conferences, organizes recreation activities, provides publications, radio programs, and information, and advocates for services and legislation that improve access for people who are blind. [GN] IEI PLASTICS: Faces Class Actions Over Parkersburg Fire ------------------------------------------------------- Brad McElhinny, writing for MetroNews, reports that three lawsuits over a massive warehouse fire in Parkersburg have been transferred to federal court. All three were originally filed in circuit court in Wood County. They have been moved to federal court in Charleston at the requests of the defendants, who are being represented by lawyers with Bailey & Glasser. Those who are suing say they represent a class of people who suffered injuries from the inhalation of smoke and suspended particulate matter that resulted from the fire, which started Oct. 21 and burned for the next eight days. The blaze at the 420,000-square-foot property, which was storing recyclable plastics for a company called IEI Plastics, sent a plume of smoke billowing over the city and across the Ohio border. The plaintiffs say they suffered respiratory ailments ranging from irritation to exacerbation of serious preexisting conditions. They also say they were injured as a result of soot, ash, and particulate matter, presenting an ongoing health risk from potential contact, inhalation, or ingestion. The class action lawsuits were filed against Surnaik Holdings, Sirnaik LLC, Saurabh Naik, International Export Import Inc., Polymer Alliance Services LLC and Green Sustainable Solutions LLC -- all entities with connections to the property that caught fire in Parkersburg. Defense attorneys say federal court is the proper venue because the plaintiff and proposed class are from West Virginia and Ohio. The proposed class in West Virginia and Ohio comprises a population center of about 90,000 people. The amount in dispute is more than $5 million, the defense lawyers say -- although one of their filings says that likely low-balls the amount. The lawyers wrote that is "just $60 per member of the alleged putative class, an amount easily dwarfed by any actual cleanup costs and/or medical damages." In a couple of the class action lawsuits, lawyers seek medical monitoring of all West Virginia residents who were exposed to the fire. "The medical monitoring allegations, standing alone, plainly exceed $5,000,000," the defense lawyers wrote. The cases have been assigned to U.S. Circuit Judge Thomas Johnston. [GN] INDIANA: Faces Class Action Over Illegal Trucking Fees ------------------------------------------------------ CDL Life reports that the state of Indiana is facing down a class action lawsuit handed down by a controversial figure in the trucking community who alleges that Indiana illegally collected approximately $1 billion in fees from truck drivers across the country. The lawsuit against the Indiana Department of Revenue (INDOR) was filed in the Marion County Superior Court on Nov. 17 by prominent conservative lawyer Jim Bopp on behalf of the Small Business in Transportation Coalition (SBTC). The lawsuit argues that the INDOR lacks the authority to collect annual Unified Carrier Registration fees from truck drivers, which it has been doing since 2008. According to the lawsuit, Indiana collects $100,000 in UCR fees from 400,000 truck drivers in 41 states every year. SBTC's lawsuit is based on the claim that there is no state law in place in Indiana "that authorizes the INDOR to enter into the UCR Agreement, to contract with the UCR Board to administer the UCR Plan, to register truckers under the UCR Plan, or to collect UCR- related fees. Thus the INDOR has been illegally collecting UCR- related fees since 2008" The lawsuit seeks to have the state of Indiana refund the fees to the truckers who paid them. Mr. Bopp told the Indianapolis Star, "I'm a conservative who does not want to see government overreaching, taxing people and collecting money unless the people authorize it through the legislature. What's important to me is that government stays within its bounds. This has got to be one of the most expensive violations of law that I've seen." Lawsuit Organizer Accused Of Duping Truckers By FTC SBTC founder and president James Lamb says that according to his calculations, many drivers could see hundreds of dollars coming their way if the suit is successful. Mr. Lamb, who also runs the "Trucker Lives Matter" Facebook page, also advocates for truck driver gun rights. The Federal Trade Commission has filed an injunction against Lamb for allegedly duping tens of thousands of truckers out of more than $17 million by impersonating a government agency. From the injunction: "By impersonating government agencies and misrepresenting themselves as having a government affiliation, Defendants deceive owners and operators of tractor-trailer trucks and other commercial vehicles ("consumers") into paying the fees that Defendants charge for filing federal and state motor carrier registrations. Many of the consumers harmed by Defendants' false representations are small businesses with only a few employees and fewer than five trucks. Since at least 2012, Defendants have taken in more than $17 million from tens of thousands of consumers throughout the United States using threatening emails, official- sounding telephone messages, and alarming texts from the "Compliance Unit" of UCRRegistration and DOTAuthority, for example." Lamb has counter-sued the FTC, claiming that his marketing materials made it clear that they were from a third party organization. According to a press release from the SBTC, "SBTC is a 501(c)(6) non-profit trade organization located in Washington, D.C. SBTC has over 8,000 members and represents, promotes, and protects the interests of small businesses in the transportation industry. SBTC is a watchdog group for the trucking industry that investigates government fraud, waste, mismanagement, and abuse. It is the policy of the SBTC to expose unlawful government activities and improprieties whenever discovered." [GN] IXYS CORP: Monteverde & Associates Files Securities Class Action ---------------------------------------------------------------- Monteverde & Associates PC disclosed that it has filed a class action lawsuit in the United States District Court For The Northern District California, case no. 17-cv-06441, on behalf of shareholders of IXYS Corporation, ("IXYS" or the "Company") (NasdaqGS: IXYS) who held IXYS securities and have been harmed by IXYS and its board of directors' (the "Board") for alleged violations of Sections 14(a), and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") in connection with the sale of the Company to Littelfuse, Inc. Under the terms of the agreement, IXYS shareholder will receive (i) 23.00 in cash (subject to applicable withholding tax), without interest (referred to as the cash consideration), or (ii) 0.1265 of a share of common stock, par value $0.01 per share, of Littelfuse (referred to as the stock consideration and together with the cash consideration, the merger consideration) (the "Merger Consideration"). The complaint alleges that this offer is inadequate and alleges that the Registration Statement in Form S-4 (the "Proxy") provides materially incomplete and misleading information about the Company's financials and the transaction, in violation of Sections 14(a), and 20(a) of the Exchange Act. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from November 21, 2017. Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. If you wish to discuss this action, or have any questions concerning this notice or your rights or interests, please contact: Click here for more information: www.monteverdelaw.com/investigations/m-a/ It is free and there is no cost or obligation to you. Monteverde & Associates PC -- http://www.monteverdelaw.com-- is a boutique class action securities and consumer litigation law firm committed that has recovered millions of dollars and is committed to protecting shareholders and consumers from corporate wrongdoing. Monteverde & Associates PC lawyers have significant experience litigating Mergers & Acquisitions and Securities Class Actions, whereby they protect investors by recovering money and remedying corporate misconduct. [GN] KISLING NESTICO: Judge Recuses Herself in Class Action ------------------------------------------------------ Cory Shaffer, writing for cleveland.com, reports that the judge overseeing a potential class-action lawsuit against personal injury law firm Kisling, Nestico and Redick unexpectedly removed herself from the case on Nov. 17. Summit County Common Pleas Court Judge Alison Breaux earlier this year successfully argued to stay on the case after lawyers representing three former KNR clients who are suing the law firm asked the Ohio Supreme Court to disqualify her. The first-term judge reversed course and recused herself without warning after she conducted her own review following the Supreme Court's decision. Judge Breaux wrote in her order that her own review turned up no evidence that she has any bias or prejudice for or against any parties in the suit, but she decided to step aside "out of an abundance of caution and in the best interest of all parties." Judge Breaux's staff attorney Catherine Loya provided cleveland.com a copy of the order, which was not yet available on the Summit County Clerk of Courts online docket. Ms. Loya said the judge declined to comment on whether any new information came to light to make her change her mind. A new judge will be randomly assigned to the case, according to the office of Administrative Judge Amy Corrigall Jones. The order came as a surprise to lawyers on both sides of the case. "We remain confident in the Ohio and Summit County court systems and that our clients will obtain justice no matter who the judge is going forward," said Peter Pattakos, the lawyer representing the three former KNR clients who filed the lawsuit. Jim Popson, who represents KNR, echoed Mr. Pattakos' sentiment. "We look forward to working with whoever is assigned," Mr. Popson said. The order follows Ohio Supreme Court Chief Justice Maureen O'Connor's June decision not to order Breaux off the case. Subodh Chandra, who at the time was acting as co-counsel with Mr. Pattakos, claimed that contributions from KNR and partner Rob Nestico, who is named as a defendant in the lawsuit, to Judge Breaux's 2016 election campaign may have swayed her opinions in several rulings against the plaintiffs. Judge Breaux responded by saying she had no bias in the case and noted that Nestico and KNR had also contributed to several other judicial candidates, including her opponent in that same race. Mr. Pattakos said on Nov. 20 that he and Mr. Chandra made the request to have Breaux removed from the case after they began looking into potential connections with KNR after she made two rulings against them that they believed were not based in law. Judge Breaux later reversed her decisions, and Mr. Pattakos said he was confident that she would be fair to them. Judge Breaux lifted her March order imposing a gag order prohibiting lawyers from either side from discussing the case publicly and preventing the Clerk of Courts from making any court filings available online. Cleveland.com and lawyers from the First Amendment and the Arts Project at the Spangenberg Center for Law, Technology and the Arts at the Case Western Reserve University School of Law challenged the order in appellate court in May. The lawsuit against KNR says the law firm, including partners Nestico and Robert Redick, intentionally deceived and defrauded clients with kickback schemes involving chiropractors and the now- defunct loan company Liberty Capital Funding. The law firm charged an "investigation fee" for work that was never performed, and for basic clerical services that are not legally chargeable to clients, the suit says. KNR has denied the allegations, and filed a countersuit against a their former lawyer who they say stole internal emails and gave them to Mr. Pattakos' clients. Mr. Pattakos calls the counterclaim an attempt to threaten the employee's livelihood and bully him into silence. [GN] LITTLE ROCK, AR: Lawsuit Calls Rental Checks Unlawful ----------------------------------------------------- Chelsea Boozer, writing for Arkansas Online, reports that a lawsuit filed in circuit court is challenging Little Rock's rental inspection code, calling the mandatory inspection of rental units every two years an "unlawful search." Rental house owner Robert Moore filed suit against the city and some of its employees at the beginning of November and is seeking class action status. Moore claims the city's inspections constitute unlawful searches, and neither property owners nor tenants are told by city inspectors that they have the right to refuse the inspection. "During these inspections, city officials search for evidence that can result in criminal charges, a declaration the property is a nuisance, or condemnation of the property," the lawsuit says. The city's code states that if a person refuses consent to these searches, this refusal "is deemed to constitute an imminent threat to the public health, safety and welfare of the citizens of Little Rock and may lead to a declaration by the city that the rental housing unit is a public nuisance." Buildings that are declared a nuisance are sometimes condemned, boarded up or have the utilities stripped. Moore said in his lawsuit that he has been approached numerous times for his rental property to be inspected and that he has refused. The lawsuit says the tenants have a constitutional right to privacy. The city threatened Moore with loss of his property and criminal charges as a consequence of his refusal, he said. Named as defendants are the city, Operations Supervisor Greg Massanelli, Code Enforcement Division Manager Ed Garland, Code Officer Morris Hunter and unknown code officers, currently listed as John Does. Moore's attorney, Chris Corbitt, said in the complaint that courts addressing similar ordinances in other cities have found them unconstitutional under federal standards. He points to Baker vs. City of Portsmouth, Ohio, in which a judge granted summary judgment for the property owner in 2015, and another case a year later against the city of Flint, Mich., where a property owner was granted a preliminary injunction. Corbitt said the class of property owners who have been subjected to Little Rock's inspections will likely exceed 1,000. Questions to be determined by the court include whether the inspections constitute unlawful searches, whether the inspection code violates due process, whether the code fails to provide adequate notice of the right to refuse, whether IT provides for excessive fines in violation of the state constitution, whether property owners are entitled to a refund of those fines, and whether they are entitled to compensation. "The Rental Inspection Code, and ordinances comprising that code, are unconstitutional on their face," the complaint says. Moore is seeking a jury trial. The complaint was filed Nov. 3, and the city has yet to respond. In Arkansas, renters have few rights under state law. It's the only state where landlords do not have to provide a habitable dwelling. Landlords also are not required to make repairs unless it is stated in the lease agreement. And renters cannot withhold rent for any reason. Corbitt represented Moore in 2016 in a lawsuit against Moore's tenants alleging failure to pay rent. The judge ruled in his favor. Within days of filing the rental code lawsuit, Corbitt had filed another suit against Little Rock seeking class action status over the city's false-alarm fees. The fees are charged to business and property owners after a certain number of times that alarms go off when there is no emergency, causing firetrucks to report to the scene. At the same time Corbitt also filed a class action suit against the city of North Little Rock, claiming its city-owned electric utility is a monopoly illegal under Arkansas law. [GN] LOUISIANA: Judge Recommends Dismissing Illegal Arrests Case ----------------------------------------------------------- Michael Kunzelman, writing for The Associated Press, reports that a federal investigation revealed last year that authorities in a rural Louisiana parish routinely used illegal "investigative holds" to arrest hundreds of people for questioning, secretly keeping them jailed for days on nothing more than a "hunch." But a federal judge's ruling could preclude most of these people from getting any class-action compensation for their ordeals. In a court filing on Nov. 17, U.S. Magistrate Judge Patrick Hanna recommended dismissing three people's claims because they were freed from jail more than a year before their lawyers sued the city of Ville Platte and Evangeline Parish Sheriff's Office over the arrests. A district court judge must decide whether to adopt Judge Hanna's recommendations. Plaintiffs' lawyers argued that a one-year statute of limitations shouldn't apply in this case because people were told to keep silent. And these unconstitutional arrests in Evangeline Parish were a "regular part of criminal investigations" for more than two decades, the Justice Department said in a December 2016 report. People often were strip-searched, held in cells without beds, toilets or showers and detained for at least three days -- sometimes much longer -- without getting a chance to talk to loved ones or contest their arrests, the department's report says. Detectives told federal investigators they used these investigative holds when they didn't have sufficient grounds for an arrest but had a "hunch" or "feeling" that somebody may be involved in criminal activity. One woman told federal investigators that police detained her and her family in 2014 after they went grocery shopping and may have witnessed an armed robbery and shooting. The woman wasn't a suspect, only a possible witness, but she said she was detained, strip-searched and jailed for roughly nine hours before police questioned her. The Justice Department, which began investigating in April 2015, counted a "staggering" number of investigative holds for such a sparsely populated community: Ville Platte police officers used the practice more than 700 times between 2012 and 2014; the sheriff's office made more than 200 such arrests over the same period. Evangeline Parish, approximately 80 miles west of Baton Rouge, has a population of roughly 34,000 residents. Ville Platte has approximately 7,300 residents, with blacks accounting for 64 percent of the city's population. Plaintiffs' attorneys said officers threatened people with more jail time if they discussed what happened to them. FBI agents who questioned some potential class members told them not to discuss the federal investigation until after the Justice Department released its findings, the lawyers said. On March 1, attorneys filed the class action on behalf of four named plaintiffs. Three of them had been released from investigative holds more than four years before the suit was filed, so Judge Hanna recommended dismissing their claims. Judge Hanna said nobody alleged that federal authorities questioned any of the four plaintiffs or told them not to discuss their claims. "Similarly, there is no allegation that anyone stopped the plaintiffs from attempting to file a lawsuit at any time," he wrote. Plaintiffs' lawyers also argued that their clients lacked the education or sophistication to know they could have viable claims, but Hanna said they had enough information to investigate that. Frank Schirripa, one of the plaintiffs' attorneys, said they likely will file an objection to Hanna's recommendations. A settlement agreement resolved a separate lawsuit that three people filed against the city of Ville Platte and its police chief, Neal Lartigue. The suit accused police of arresting the three people in 2014 and jailing them without explanation. Settlement terms haven't been disclosed, and an attorney for the city declined to comment on Nov. 21. In its report, the Justice Department said the police department and sheriff's office admitted that the holds are unconstitutional and took "laudable steps to begin eliminating their use." "More work remains to be done," the Justice Department said. "The agencies also must work to repair community trust, because many people may still be justifiably reluctant to provide information to law enforcement for fear that doing so could subject them to an unconstitutional detention." [GN] LUMBER LIQUIDATORS: Plaintiffs' Attorneys Object to Settlement -------------------------------------------------------------- Amanda Bronstad, writing for Law.com, reports that lawyers representing individual plaintiffs who say they became sick from exposure to formaldehyde gas in laminate flooring have asked a federal judge to spurn a $26 million class action settlement with Lumber Liquidators. The attorneys insist their clients were cut out of the deal, which was struck. The settlement resolved civil lawsuits brought on behalf of Lumber Liquidators consumers who claimed economic losses. Lumber Liquidators stopped selling the products in 2015. But attorneys Shawn Reed and Kevin Sullivan, who were appointed lead counsel in August for personal injury plaintiffs, said class counsel in charge of the multidistrict litigation cut them out of settlement talks, according to a Nov. 8 motion. They asked U.S. District Judge Anthony Trenga of the Eastern District of Virginia for a hearing and to reject the settlement so they could participate in negotiations. "Unfortunately, lead plaintiffs' counsel decided to freeze these lawyers out of the settlement process," they wrote. "Because these plaintiffs' claims have been negotiated by lawyers admittedly not representing their interests, these plaintiffs have been denied due process. Any purported settlement is a nullity as a result, and this case must proceed." A Lumber Liquidators spokesman and the company's attorney, Diane Flannery -- dflannery@mcguirewoods.com -- of McGuireWoods in Richmond, Virginia, did not respond to a request for comment. But in a response filed on Nov. 20, Ms. Flannery disputed many of the facts. She also said that Lumber Liquidators "has also offered to continue mediating with the personal injury plaintiffs before Judge Brinkema," referring to U.S. District Judge Leonie Brinkema of the Eastern District of Virginia, "but as of the time of this filing, the personal injury plaintiffs have not responded." Mr. Sullivan, of The Sullivan Law Firm in Seattle, declined to talk beyond the filings. But he insisted in an email that the settlement "was intended to include the claims of people who suffered personal injuries from the flooring in their homes." Not so, said Steve Toll -- stoll@cohenmilstein.com -- managing partner of Cohen Milstein Sellers & Toll in Washington, D.C., one of three attorneys appointed to lead the multidistrict litigation. "They wanted to be included in our mediation and we didn't want them there," he said. "None of us wanted them there." The response from Toll and the other lead attorneys, Steve Berman of Seattle's Hagens Berman Sobol Shapiro and Nancy Fineman -- nfineman@cpmlegal.com -- of Cotchett, Pitre & McCarthy in Burlingame, California, was due last week, as are the first settlement documents to be filed with the court. Attorney disputes over how to handle both consumer class actions and personal injury plaintiffs in the same MDL have arisen in other mass torts, such as in settlements with the National Collegiate Athletic Association and National Football League over concussion-related injuries. More than 100 lawsuits were filed against Lumber Liquidators after a "60 Minutes" expose in 2015 found that it mislabeled the safety of flooring, which violated California emissions standards. The news caused Lumber Liquidators shares to plummet, and its CEO resigned. In July, Reed, of Howard, Reed & Pedersen in Covington, Louisiana, and Sullivan appeared at a status conference on behalf of injured plaintiffs. They told Judge Trenga they were worried they wouldn't get a seat at the settlement table and filed a motion to create a separate track for injured plaintiffs to proceed with discovery. "For example, these plaintiffs should be allowed to participate in all settlement conferences, have an attorney appointed to represent their interests, and conduct settlement negotiations on their own behalf," they wrote. They initially estimated the number of injured plaintiffs be about 20, but revised it to about 75. Then, on Aug. 17, Judge Trenga halted discovery, which "came as a surprise," according to the motion. "The reason for the discovery stay was because a settlement mediation had occurred the day before," they wrote. "Neither Mr. Sullivan nor Ms. Reed had been told about the mediation or been invited to participate, although both lawyers had made this request in open court and in their pending motion." When Ms. Flannery emailed Reed and Sullivan about another mediation session on Sept. 20, she said Ms. Toll and another lead plaintiffs attorney, Alexander "Trey" Robertson of Robertson & Associates in Westlake Village, California, did not want them to be there, the motion says. The settlement includes $22 million cash and $14 million in store vouchers, according to a Lumber Liquidators press release. The deal also resolves claims that Lumber Liquidators flooring scratches too easily -- the subject of a second multidistrict litigation proceeding created last year that also was before Judge Trenga. [GN] MAPLEBEAR INC: Set to Finalize OT Case Settlement in January 2018 ----------------------------------------------------------------- Gordon Gibb, writing for LayersandSettlements.com, reports that a shopping service that found favor with busy urban professionals but vilified by some of its service personnel is set to finalize a settlement worth $4.6 million in January 2018, reports the San Francisco Business Times (05/24/17). The class action California overtime lawsuit was brought by employees and independent contractors of Maplebear Inc., doing business as Instacart, and will settle plaintiff's angst over various allegations, including a service fee that many users of the shopping service assumed was a built-in tip for drivers, but wasn't. Meanwhile, there are allegations that some Instacart workers collected earnings that translate to as low as $1 per hour. Such a stipend falls short of requirements entrenched in pay laws recognized by the State of California, as well as potential violations of overtime pay laws. This past January -- about a year before the proposed settlement is due to be finalized -- the Los Angeles Times (01/27/17) profiled Apoorva Mehta, a Canadian and alma mater of the University of Waterloo who spent his immediate post-graduate years working for tech companies such as Blackberry and Qualcomm before moving stateside, landing in Seattle and beginning a stint as a supply chain engineer at Amazon.com, where he was responsible for developing fulfillment systems. Mehta would eventually move on to trying his hand at various start-ups. He told the Los Angeles Times that his first 20 attempts failed to take hold. Instacart was Idea No. 21 that finally gained traction, aimed as it was at busy and tech-savvy professionals who would benefit from an on-demand grocery shopping platform. Orders would be placed through an app in much the same way as a commuter would hail a ride through Uber or Lyft, with either employees or independent contractors serving as 'shoppers' filling the orders and delivering them to the customer. Based in San Francisco, Instacart was targeted by a class action lawsuit in 2015 brought, the Los Angeles Times reports, by workers who alleged they were misclassified as independent contractors, rather than employees -- and thus were missing out on requisite rates of pay and overtime pay (Cobarruviaz et al. v. Maplebear, Inc. d/b/a Instacart, Case No. 3:15-cv-00697EMC, filed on January 9, 2015 and removed from the Superior Court for the County of San Francisco on February 13, 2015). The Los Angeles Times reports that Instacart eventually made its 'shoppers' part-time employees, with some qualifying for benefits such as health insurance. Today, according to the Los Angeles Times, the startup has 300 full-time employees and a posse of part-time shoppers that number into the tens of thousands. However, things are not all rosy. On February 28 of this year yet another proposed class action lawsuit was filed in the Superior Court for the County of Los Angeles (Camp, et al v. Maplebear, Inc. d/b/a Instacart, Case No. BC652216). According to Court documents various wage and hour violations are alleged including, but not limited to violations of the Fair Labor Standards Act, unpaid wages, failure to pay minimum wages, as well as unpaid overtime. Instacart has so far faced three class action lawsuits in its young history. The most recent lawsuit prior to the 2017 filing was Husting et al. v. Maplebear, Inc. d/b/a Instacart, Case No. 3:16-cv-06921-EMC filed on December 1, 2016 in California. [GN] MASSACHUSETTS: Contractors Suing State Over Full-Time Status ------------------------------------------------------------ David Abel, writing for Boston Globe, reports that Michael McHugh has spent the past 27 years protecting wetlands for the state Department of Environmental Protection. Like most other state employees, he works at least 37.5 hours a week and has his performance regularly reviewed by supervisors. But unlike a typical state employee, McHugh is one of thousands of long-term state contractors who have never received health insurance benefits, vacation days, or a pension. He can't join the union, and he's not protected by antidiscrimination laws. He only recently began receiving sick pay, and he has been ineligible for a range of promotions because his year-to-year contract doesn't allow him to supervise other employees. "It's as if I'm a second-class employee, separate and unequal to other state employees," said McHugh, 56, of Littleton, who once earned a commissioner's citation for outstanding work. McHugh and three other DEP employees have filed a class-action lawsuit against the state, accusing it of violating equal protection laws by denying them the same benefits and protections as other state employees. Their complaints reflect a growing problem in the workplace, as employers increasingly rely on part-timers and contractors, who are generally less expensive because companies often don't provide them with insurance or other benefits. The state contractors, classified as "03 employees," are asking a Suffolk Superior Court judge to reimburse them -- and as many as 10,000 other current and former contractors -- for years of lost benefits and compensation, an award that could cost the state hundreds of millions of dollars. While the contractors understood they were signing up for positions that lacked benefits and job security, many of them expected their positions would eventually lead to full-time work. They're now demanding that the state reclassify them as regular employees. But state Attorney General Maura Healey, Esq. has rejected their demands and has asked the court to dismiss the case. Healey contends that the contractors lack the standing to sue because the state has "sovereign immunity" from such claims, meaning that a private party can't take state agencies to court unless there's a specific waiver in the law. Stefan Jouret, Esq., a Boston lawyer representing the plaintiffs, disputed that argument in a 36-page response he submitted to the court last week. "The damage here to class members is immense, and justice requires that they be allowed to have their day in court," he said. "The doctrine of sovereign immunity is an outdated concept that is fundamentally unconstitutional." He also accused Healey of hypocrisy, noting that her office released an advisory on workplace protections in May that noted all workers in Massachusetts have "the right to be classified properly as an employee" under the state's labor and employment laws. "Healey is functionally endorsing the privatization of public- sector jobs," Jouret said. Emily Snyder, a spokeswoman for Healey, said the attorney general would not comment on the merits of the claims. Healey always advises agency officials to comply with the law, she said. It's unclear how many long-term contractors work for the state. In 2010, the state auditor's office found the state had employed 18,600 contractors, at a cost of about $386 million. Most were lecturers and other part-time faculty or student interns at the state's colleges and universities. Its audit reviewed a selection of contracts at six agencies and found more than half failed to comply with a range of requirements. The state defines contractors as "temporary employees," and forbids them from being used "as a permanent substitute for a state employee position." Yet the audit found that more than 40 percent of the contracts had lasted "an excessive length of time," or more than three years. At the Department of Environmental Protection, the audit found that 75 percent of the contracts reviewed lasted longer than three years -- more than the other agencies. "Some contract employees appeared to be working essentially as full-time substitutes for state employees without receiving full- time employment benefits," the report found. State environmental officials have been aware of the issue for years. In 2014, David Cash, the DEP commissioner at the time, said he tried to convert as many of the longtime contractors to full- time positions as possible. But complications arose, including union negotiations and a lack of state funding. His effort came as the agency was making substantial cuts to its staff. Between 2006 and 2016, the agency lost nearly one-third of its employees. There had also been good reasons to hire -- and retain -- many of the employees as contractors, Cash said. But the arrangement was never meant to serve as a long-term solution. "It became a trap and unfair," Cash said. "The whole system needs to be rethought." Since the suit was filed last spring, DEP officials have stepped up their efforts to make more of the contractors full-time employees. "MassDEP is working to integrate all 03 contractors into full-time positions," said Ed Coletta, a spokesman for the agency. As of last month, 14 of the agency's 18 remaining contractors had accepted offers to become full-time employees, while another contractor is finishing a short-term project, he said. They will become full-time employees at "salary levels that are commensurate with their years of experience," Coletta said. But McHugh and other contractors won't be eligible for back pay or other compensation for benefits they never received -- a loss equivalent to about $30,000 a year, they said. "It's a Hobson's choice: accept conversion on DEP's terms with no seniority or back benefits, or you're fired," Jouret said. He disputed that the contractors were being offered appropriate salaries and benefits. For example, as new employees, they would not accrue past sick or vacation time. The DEP is only taking action now "because the lawsuit serves as flame to its feet," Jouret said. "This should have been done decades ago." Mark Stinson, a 63-year-old environmental analyst who has been working at DEP as a contractor since 2005, worries he won't be able to retire. Stinson, who like McHugh earns about $90,000 a year, said more than a third of his wages have gone to pay for private health insurance. His expenses have been so high that he hasn't been able to take vacations, he said. "We always had to work harder than the regular employees because we had no protection, and they could fire us at any time," Stinson said. "This inequity has gone on long enough." [GN] MASTERCARD: Class Action Over Credit, Debit Card Fees Pending ------------------------------------------------------------- Nate Raymond, writing for Reuters, reports that an antitrust lawyer pleaded guilty on Nov. 20 to federal charges that she conspired with her husband to use two bogus vendors to defraud two New York law firms out of $7.8 million. Keila Ravelo, who prior to her 2014 arrest had been a partner at law firm Willkie Farr & Gallagher, pleaded guilty in federal court in Newark, New Jersey to conspiracy to commit wire fraud and tax evasion, prosecutors said. The Englewood Cliffs, New Jersey-resident's husband, Melvin Feliz, pleaded guilty in 2015. Ms. Ravelo, 52, is scheduled to be sentenced on March 5, prosecutors said. Ms. Ravelo's lawyers, Lawrence Lustberg and Steven Sadow, in a joint statement said that in pleading guilty, she accepted responsibility for failing to expose her husband's fraud on the law firms and MasterCard Inc, which was also defrauded. "Instead, and under intense emotional pressure to keep silent, she wrongfully covered up his fraud, and by doing so, allowed it to continue," her lawyers said. Prosecutors said Ms. Ravelo and Mr. Feliz set up two bogus vendors that from 2008 to 2014 billed the two New York law firms where she was a partner, Hunton & Williams and later Willkie, for litigation support services that were never performed. Many of the payments were authorized by Ms. Ravelo, who along with Mr. Feliz used the money for personal expenses and investments, including $250,000 in payments to a jewelry store, prosecutors said. Ultimately, the two law firms paid the vendors $7.8 million, prosecutors said. The law firms then in turn billed clients for the litigation support services, according to court papers. While undertaking an internal investigation following her arrest, Willkie discovered communications in Ms. Ravelo's files with a plaintiffs lawyer, Gary Friedman, who was representing retailers in a class action lawsuit against American Express. Those communications revealed that Mr. Friedman had shared confidential information from the American Express case with Ms. Ravelo, who was one of MasterCard's defense lawyers in a related class action. U.S. District Judge Nicholas Garaufis in Brooklyn in 2015 said Friedman's conduct "fatally tainted the settlement process." Jduge Garaufis as a result rejected a settlement that would have allowed merchants to impose a surcharge on American Express users and allowed Friedman's law firm and two others to receive $75 million in fees. MasterCard and Visa had at the time negotiated a $7.25 billion settlement with retailers that accused the card networks of improperly fixing credit and debit card fees. A U.S. appeals court tossed the deal in 2016. The litigation remains pending. The case is U.S. v. Ravelo, U.S. District Court, District of New Jersey, No. 15-cr-00576. [GN] MCM PRODUCTS: Faces "Matzura" Suit in S.D. New York --------------------------------------------------- A class action lawsuit has been filed against MCM Products USA Inc. The case is styled as Steven Matzura and on behalf of all other persons similarly situated, Plaintiff v. MCM Products USA Inc. and MCM Worldwide, LLC, Defendants, Case No. 1:17-cv-09702 (S.D. N.Y., December 11, 2017). McM Products USA Inc. is in the Women's Handbags and Purses business.[BN] The Plaintiff is represented by: Justin Alexander Zeller, Esq. The Law Office of Justin A. Zeller, P.C. 277 Broadway, Suite 408 New York, NY 10007 Tel: (212) 229-2249 Fax: (212) 229-2246 Email: Jazeller@zellerlegal.com MGM RESORTS: Faces Negligence Cases Over Las Vegas Mass Shooting ---------------------------------------------------------------- Ken Ritter, writing for The Associated Press, reports that attorneys who filed one of the first lawsuits after the Oct. 1 mass shooting that killed 58 concert-goers and left hundreds injured on the Las Vegas Strip filed four new negligence cases on Nov. 20 on behalf of more than 450 victims. This time, however, Houston-based lawyers Chad Pinkerton and Mo Aziz filed the cases in Los Angeles against companies including MGM Resorts International, the corporate owner of both the Mandalay Bay resort and the Route 91 Harvest Festival concert venue. Mr. Pinkerton said the intent was to get the cases before a jury less likely to be influenced by the size and clout of a casino company that is both an active political contributor in Nevada and the largest employer in the state. "Los Angeles is a better venue for fairness for our clients," Mr. Pinkerton said in a telephone interview ahead of a news conference announcing the filing of two wrongful death lawsuits, a third case stemming from a woman's head wound and a fourth on behalf of 450 people claiming injuries in the worst mass shooting in modern U.S. history. "There would be certain advantages for MGM to defend its case in Nevada," Mr. Pinkerton said, adding that a jury in MGM Resorts' hometown might include people with direct or indirect ties to the company and its more than 70,000 employees. The company has said through representatives it won't litigate shooting lawsuits in the media. In statements, it has blamed the massacre on the gunman, Stephen Paddock. Defendants in the new lawsuits also include Live Nation Entertainment, the concert promoter. In a statement, the Beverly Hills, California-based company expressed sorrow for "countless people forever impacted by this senseless act of violence" and said it was cooperating with an active FBI investigation. It declined to comment about the lawsuits. Documents submitted on Nov. 20 in Los Angeles also seek compensation from Mr. Paddock's estate. They included a refiling of a negligence claim originally filed Oct. 10 in Las Vegas on behalf of a wounded California woman, Paige Gasper, with four new plaintiffs added. Gasper's original case was dismissed on Nov. 17 in Nevada. "Most of our clients from California." Mr. Pinkerton said. "Most all are getting their treatment here." The lawsuits do not seek class-action status, but Aziz said he expects they will be consolidated during pretrial investigations and evidence exchanges. The new lawsuits followed a wave of cases filed in Nevada state court in Las Vegas on behalf of 14 concertgoers, including some who were shot, injured or say they were traumatized trying to escape. A Chicago law firm helped prepare those filings, involving plaintiffs from the Chicago area and a California man who was shot and wounded. Police and the FBI say the 64-year-old Mr. Paddock rained bursts of gunfire for 10 minutes from a 32nd-floor room at the Mandalay Bay into a crowd of 22,000 people in the concert venue across Las Vegas Boulevard. Mr. Paddock, a high-stakes video poker gambler with homes in Reno and the southern Nevada resort town of Mesquite spent several days amassing an arsenal of assault-style weapons and ammunition in a two-room suite. Authorities say he killed himself before officers reached his room. A motive for the deadly rampage has not been identified. Plaintiffs in mass-shooting lawsuits face a high legal bar to prove responsibility and liability by someone other than the shooter, and lawsuits can take years in court. But Mr. Pinkerton said he believes he can show that tragedy could have been avoided if hotel and corporate officials followed hotel weapon possession policies already in place and implemented recent safety recommendations. "We know in this day and age that evil does happen, and we have to protect against that," the lawyer said. "This was the largest venue security failure in U.S. history." [GN] MGM RESORTS: New Lawsuits Filed Over Las Vegas Attack ----------------------------------------------------- Polly Mosendz, writing for Bloomberg News, reports that a slew of new lawsuits have been filed by victims of the Las Vegas attack, which left almost 60 dead and more than 500 wounded. The alleged gunman, Stephen Paddock, shot attendees of the Route 91 Harvest country music festival from the 32nd floor of the Mandalay Bay Resort on the night of Oct. 1. The latest tide of litigation targets the entertainment company that put on the show and the hotel, alleging they acted negligently in the run up to the mass shooting. The first complaints were filed within days of the attack. Those initial cases ranged from victims seeking class action status and traditional negligence suits targeting the estate of Paddock -- who, authorities said, killed himself -- the hotel, the concert organizers and the venue. Las Vegas-based Titolo Law Office, along with the Chicago-based firm Romanucci & Blandin, filed 14 lawsuits in Clark County district court related to the shooting. The defendants in the new lawsuits include MGM Resorts International Inc., Mandalay Corp., Live Nation Entertainment Inc., Live Nation Group (doing business as OneNationGroup LLC), Paddock's estate, bump stock maker Slide Fire Solutions LP and several unidentified manufacturers and retailers. "We continue to be devastated by the tragedy at the Route 91 Festival, heartbroken for the victims, their families and the countless people forever impacted by this senseless act of violence and are cooperating fully with the active FBI investigation," Live Nation said in a statement. "We are, however, unable to comment specifically on pending litigation." (Other defendants didn't immediately reply to requests for comment.) Accused of breaching its "duty of reasonable care" Luca Iclodean, who attended the festival and was shot in the torso, is among the new plaintiffs. "MGM had a duty of reasonable care in the protection and safeguarding of persons on the Mandalay Bay and MGM premises," Mr. Iclodean alleged in the complaint. The lawsuit alleges that the hotel didn't maintain a safe environment for a litany of reasons, including failing to surveil those entering and leaving the premises, failing to monitor the closed- circuit television system, failing to record activity on the 32nd floor, and failing to discover Paddock's weapons arsenal in his hotel room. A final claim in the lawsuit cited the defendant's failure to "have gunshot detection devices in the hotel rooms." The new lawsuits seek unspecified damages, though the claims could easily total millions of dollars or more. LiveNation was accused of breaching its "duty of reasonable care" by failing to mark emergency exits at the festival, train staff in emergency preparedness, or hire security staff. Other plaintiffs, including Heather Gooze and Shawna Lott, alleged they were "severely injured" attempting to escape the area in which the event was held. Slide Fire Solutions, a bump stock manufacturer, is also named as a defendant in the new cases. The firearm accessory allows a semi- automatic weapon to fire more rapidly, mimicking a fully automatic weapon, and a dozen such devices were found in Paddock's room, though their manufacturer's name wasn't disclosed by authorities. The Texas-based company is also being sued by the Brady Center to Prevent Gun Violence. [GN] MICHAEL FOODS: Judge Approves $75MM Egg Antitrust Settlement ------------------------------------------------------------ P.J. Dannunzio, writing for Law.com, reports that a judge has signed off on a $75 million settlement from Michael Foods, a subsidiary of packaged food producing giant Post, to settle claims against it in the egg antitrust litigation in federal court. The settlement, reached nearly a year ago, was given final approval on Nov. 17 by U.S. District Judge Gene E.K. Pratter of the Eastern District of Pennsylvania, the presiding judge in the litigation. The class action, brought by direct purchasers and suppliers of eggs, continues against other defendants. "The proposed settlement agreement is fair, reasonable, and adequate. Accordingly, the court grants plaintiffs' motion for final approval of the class action settlement with defendant Michael Foods," Judge Pratter wrote in her opinion. The class, which Judge Pratter certified in September 2015, claims the nation's major egg producers were involved in a conspiracy to control and limit the supply of eggs in an effort to increase prices, allegedly through short-term production restrictions, such as slaughtering hens early, a pretextual animal welfare program and a "calculated" series of exports of eggs at below-market prices. "While we remain confident that our conduct has at all times been lawful and entirely appropriate, we believe this settlement is in the best interest of our shareholders, employees, customers and consumers because it effectively eliminates the distraction, expense, and exposure of this complex litigation," Rob Vitale, Post's president and CEO, said in a December 2016 statement. An attorney for the class members, Stephen Neuwirth -- stephenneuwirth@quinnemanuel.com -- of Quinn Emanuel Urquhart & Sullivan, said in December that the settlement was a step in the right direction. "This is a very important step toward ensuring compensation for the direct purchasers of eggs who were victims of this longtime conspiracy," he said then. The litigation saw settlements from other parties in July 2016. Defendant Midwest Poultry Services agreed to pay $2.5 million; National Food Corp. agreed to pay $1 million; United Egg Producers and United States Egg Marketers agreed to jointly pay $500,000; NuCal Foods agreed to pay $1.425 million; and Hillandale Farms agreed to pay $3 million, according to an opinion issued by Pratter at the time. In addition to the payments and agreeing to cooperate in the ongoing litigation, the six defendants were released from any and all claims from the direct purchasers. Earlier in the case, Judge Pratter had denied certification to the indirect purchaser plaintiffs -- those who purchased eggs produced by the defendants but sold elsewhere -- because their proposed class members were not easily categorized, did not have enough in common and were not manageable. As for the direct purchasers, Judge Pratter held in a September ruling that the plaintiffs had demonstrated there was commonality between the different proposed class members. "The court concludes that common issues predominate with respect to whether the alleged conspiracy had an impact on the members of the shell eggs subclass," Judge Pratter had said. "Plaintiffs can use common evidence to demonstrate that (a) defendants made efforts to reduce the supply of eggs and thereby raise the price of eggs; (b) the egg market was structured so that the alleged conspiracy to restrict the supply of eggs, if successful, would have caused all or virtually all direct purchaser plaintiffs to pay higher prices than they would have absent the conspiracy; and (c) the conspiracy was successful in raising prices." Those factors showed that the plaintiffs were affected by the defendants' alleged anti-competitive behavior, Judge Pratter said. Additionally, Judge Pratter said the direct purchaser plaintiffs have compiled detailed discovery supporting their claim that a class was warranted, relying heavily on the defendants' documents illustrating the supply reduction initiatives. The plaintiffs also argued that the lack of substitutes for eggs and high demand played a part in the defendants' alleged conspiracy, Judge Pratter said. "Because of the lack of close substitutes for eggs, class members could not have systematically avoided the effects of a lower supply of eggs by obtaining a substitute for eggs, but would instead have had to pay the increased prices of eggs," Judge Pratter said. [GN] MORRIS COLLEGE: Faces Class Action Over "Toxic" Mold ---------------------------------------------------- Bruce Mills, writing for the SumterITEM, reports that the litigation attorney who filed a class-action suit on behalf of five current and former Morris College students against the college says the mold issues on the campus are "toxic" and that he wants the college to step up and fix the problems. Attorney John Harrell of Harrell Law Firm, PA, in Charleston, made his comments on Nov. 20 concerning the case after the lawsuit was filed and the college was notified. Mr. Harrell said he first became aware of the alleged complaints of health issues related to mold infestation at the Morris campus about two months ago, when parents of students began to contact him in September. Since then, Mr. Harrell said he and his firm's representatives have been on the campus "multiple times" to interview prospective clients who have contacted his firm about the issues. Students have also supplied him photographs taken with their cellphones from their dormitories illustrating mold and other hazardous substances, he said. "The conditions at the college are toxic, and they're making people literally sick to the point of having to go to the doctor," Mr. Harrell said. The 17-page class-action complaint dates the mold problems at the college back to at least 2013, but Harrell said he thinks -- based on clients' testimony -- the problems date back to potentially 2007 or earlier. In 2007, Mr. Harrell said a Morris student who lived in one of the student dorms died from meningitis. According to Mr. Harrell and numerous medical sources, mold is a cause of meningitis. According to code statutes, the college must notify students of any threat or risk of contacting meningitis, but Mr. Harrell said it never did after the 2007 incident, to his knowledge. Dozens of students rallied at an area park to voice their frustration on the campus' mold problems and to bring about change. After the October rally, the college posted on social media that it had fixed the problems, Mr. Harrell said. He said that's not possible because he has obtained dormitory photos from students since the rally. The class-action complaint lists three campus dorms where mold has been identified by the five representative plaintiffs but makes reference to problems in other facilities on campus. Mr. Harrell said on Nov. 20 he thinks virtually every building on campus has mold problems, except for possibly the college's new administration building. He said he thinks some buildings have worse mold issues than others. He emphasized he is not against the college in any way but that he wants it "to rise to the level of its historical status, which it is not doing," he said. Morris is a historically black, coeducational, liberal arts college operated by the Baptist Educational and Missionary Convention of South Carolina. It was founded in 1908 by the state convention. On Nov. 20, college officials notified various members of its board of trustees and the state convention on issues raised in the complaint, according to the college's attorney, Thomas Levy of Thomas B. Levy Law Office in Columbia. The college has not issued an official statement yet, Mr. Levy said. Morris has 30 days from the time of being served to provide an answer to the complaint, which will be about mid-December according to Mr. Harrell. The plaintiffs are seeking at least $55 million in damages from the school. [GN] MYER: Class Action Law Firms Mull Investor Suit ----------------------------------------------- Sue Mitchell, writing Australian Financial Review, reports that billionaire retailer Solomon Lew's Premier Investments is considering taking legal action against Myer after losing almost $40 million on its $101 million stake in eight months. It is understood that Mr Lew is mulling his legal options after claiming in September that Myer misled investors about the pace of its turnaround under chief executive Richard Umbers' New Myer strategy. Mr Lew will decide his next move after Myer's annual meeting in Melbourne on Nov. 24, where the Myer board faces harsh criticism from shareholders following a 49 per cent fall in its share price this year. Premier Investments has called on shareholders to follow its lead and vote against all the resolutions at the annual meeting, including the election of chairman designate Garry Hounsell and two other non-executive directors. Premier has been inundated with proxy votes from aggrieved retail investors, many of whom bought into Myer at the time of its 2009 initial public offer, paying $4.10 a share compared with the Nov. 22 close of 70.5õ. However, Premier is not expected to garner enough support from retail and institutional investors to block the resolutions. Proxy advisers Ownership Matters, CGI Glass Lewis and IRI and the Australian Council of Superannuation Investors and the Australian Shareholders Association have effectively backed the Myer board by recommending shareholders vote in favour of Mr Hounsell, JoAnne Stephenson and Julie Anne Morrison. Mr Lew has reserved the right to call an extraordinary general meeting, at which Myer shareholders would have the opportunity to consider his nominees for the Myer board -- former Myer Grace Bros managing director Terry McCartney, former UBS banker Tim Antonie and Steven Sewell, chief investment officer of Abacus Property. However, it is understood that Premier may postpone calling an EGM until the new year, possibly after the release of Myer's first half results in March. Myer has rejected Mr Lew's request for board representation, saying that inviting Premier's nominees onto the board would give Mr Lew effective control without a full takeover bid and would create unmanageable conflicts of interest. Premier, which owns brands such as Portmans, Dotti, Just Jeans, Jays Jays and Smiggle, and Mr Lew's unlisted businesses, are major competitors to Myer, supplying about $200 million of goods every year. It is understood that the option of taking legal action is not necessarily dependent on the outcome of the annual meeting or the timing of an EGM. Class action law firms are also understood to be sounding out retail investors about a potential suit. This follows the launch of class action claims against Myer in December 2016 from former shareholder TPT Patrol Pty Ltd, trustee for the Amies Superannuation Fund, and in March 2015 by Melbourne City Investments. The MCI action was dismissed last December as an abuse of process. Premier acquired a 10.8 per cent stake in Myer in March at around $1.14 a share or $101 million and has since seen the value of its shares fall by more than $40 million. Premier shareholders such as Airlie Funds Management founder John Sevior are unhappy with the stake but are hoping the retailer eventually makes a return on its investment, pointing to Mr Lew's successful investment track record. Mr Lew has laid out a seven-point plan for reversing a 20-year slide in sales and earnings growth at Myer. The plan includes selling merchandise shoppers want; improving service levels, closing new clearance floors, improving Myer's omni-channel business and accelerating the closure of non-performing stores. [GN] NEW MOOSEJAW: Sued Over Wiretapping Activities ---------------------------------------------- Brady Cohen, individually and on behalf of all others similarly situated, Plaintiff, v. New Moosejaw, LLC and Navistone, Inc., Defendants, Case No. 17-cv-09391, (S.D. N.Y., November 30, 2017), seeks actual damages, disgorgement of any illegally-made profits, statutory damages, preliminary and other equitable or declaratory relief, punitive damages, reasonable attorney's fee and other litigation costs reasonably incurred, prejudgment interest on all amounts awarded, restitution and all other forms of equitable monetary relief and injunctive relief for violation of the Wiretap Act. New Moosejaw and NaviStone are accused of wiretapping the computers of visitors to the Moosejaw website, Moosejaw.com. NaviStone allegedly employs these wiretaps to observe visitors' keystrokes, mouse clicks and other electronic communications in real time for the purpose of gathering visitors' personally identifiable information. On several occasions, Cohen visited Moosejaw.com, but has never made any purchase from Moosejaw. During each of Plaintiff's visits, Moosejaw disclosed intercepted data to NaviStone in real time to attempt to learn his identity, postal address and other personal data. New Moosejaw, LLC is located at 32200 North Avis Suite 100, Madison Heights, Michigan. Moosejaw is an online seller of active outdoor equipment carrying more than 400 brands. NaviStone, Inc. is an online marketing company and data broker that deals in U.S. consumer data and is based in 1308 Race Street, Cincinnati, Ohio 45202. [BN] Plaintiff is represented by: Scott A. Bursor, Esq. Neal J. Deckant, Esq. Frederick J. Klorczyk, III, Esq. Alec M. Leslie, Esq. BURSOR & FISHER, P.A. 888 Seventh Avenue New York, NY 10019 Telephone: (212) 989-9113 Facsimile: (212) 989-9163 E-Mail: scott@bursor.com ndeckant@bursor.com fklorczyk@bursor.com aleslie@bursor.com NEW YORK: NYPD Faces Promotion Discrimination Class Action ---------------------------------------------------------- Eric Bachman, Esq. -- ebachman@zuckermanlaw.com -- of Zuckerman Law, in an article for The National Law Review, wrote that a class action case filed in federal court claims that African-American detectives in the New York Police Department (NYPD) are illegally excluded from higher-level promotions within the detective rank (aka the glass ceiling). The lawsuit asserts that the NYPD unlawfully denied promotions to African-American detectives within the Intelligence Division of the NYPD. The lead plaintiffs are Jon McCollum and Roland Stephens, as well as Sara Coleman, widow of Theodore Coleman. "I hit a brick wall when it came to my career in Intel," said Detective Stephens. "I came to the painful realization that my skin color mattered more than my skills and achievements." The case is Coleman, et al. v. The City of New York, et al., 1:17- cv-07265, (S.D.N.Y.). The plaintiffs are represented by Emery Celli Brinkerhoff & Abady LLP and the New York Civil Liberties Union. The NYPD is represented by the New York City Law Department. Glass ceiling/promotion discrimination Glass ceiling discrimination generally refers to an unfair, artificial barrier that prevents certain employees (women; people of color; LGBT) from fairly competing for upper management jobs. In practice, it keeps qualified employees from reaching their full potential and, depending on applicable law, illegally blocks them from occupying the best-paid and most powerful positions. The glass ceiling can be caused by, among other things: -- entrenched attitudes/stereotypes about what type(s) of people should get the "top" jobs; -- subjective/hard to define qualifications for promotions that introduce conscious or unconscious biases into decision-making; and/or -- a lack of networking and mentoring opportunities for women, people of color, and other underrepresented groups Title VII of the 1964 Civil Rights Act, as well as other federal and state laws, make it illegal for an employer to use promotion practices that create a glass ceiling. Background about the NYPD's alleged glass ceiling The crux of the case is laid out in the first paragraph of the complaint, which states, "[f]or well over a decade, the NYPD's Intelligence Division has implemented a secretive and unstructured promotions policy, administered by white supervisors who refuse to promote deserving African-Americans detectives." It continues that, "[a]s a result of these policies, Named Plaintiffs and other African-American detectives have been repeatedly denied well- deserved promotions -- even when recommended by their direct supervisors -- without explanation, while less qualified white detectives have been promoted above them." Each of the three named plaintiffs joined the Intelligence Division in 2001 and helped with the cleanup and investigation of the September 11 attacks. According to a press release, they "tracked hundreds of leads and suspects. In spite of their achievements and strong recommendations from their direct supervisors, they were repeatedly passed up for promotion because of their race." "I watched countless white detectives from my class move up in rank, but not me," recalled Detective McCollum. "Multiple supervisors told me if I were white I would have been promoted." The promotion selection process The complaint paints a picture of a highly subjective promotion process that occurs in a vacuum. For example, the plaintiffs claim that: "The NYPD does not publish when promotion decisions for Intelligence Division detectives will be made, who will participate in the decision-making process, or what weight, if any, supervisor recommendations will be given" "Candidates for promotion are not told how many vacancies there are, who else they are competing against, or what criteria will be used to decide promotions. Often, they are not even informed that they are being considered for promotion." "In practice, promotions are the result of a highly subjective decision-making process, with decisions about advancement made in secret by all-white high-level supervisors." African-American representation in the Intelligence Division The plaintiffs describe the Intelligence Division as "one of the most elite and prestigious divisions within the NYPD." As of 2013, the unit employed approximately 600 people, including about 280 detectives. As to the proportion of African-American employees, at the time the EEOC charge of discrimination was filed in 2011: African-Americans constituted 18% of all NYPD police officers and 16% of all NYPD detectives, but only 6% of Intelligence Division personnel and 7% of Intelligence Division detectives. White officers were substantially overrepresented in the Intelligence Division, constituting 80% of the Intelligence Division and 80% of Intelligence Division detectives but 50% of all NYPD officers and 57% of all detectives. "At higher levels of seniority, in 2011," the complaint says that "there were no African Americans above the rank of Sergeant -- in other words, no African American Lieutenants, Captains, or other high-level supervisory personnel -- in the entire Intelligence Division." These numbers have apparently improved since then, but plaintiffs assert that African-American detectives continue to lag behind their white counterparts. Class action versus an individual case An individual case involves one employee (Joe Smith) suing his employer for glass ceiling/promotion discrimination. The way the company treats its other employees will be relevant in an individual case. But the focus of the case and the available remedies will remain on what happened to Joe Smith. Individual lawsuits are far more common than class action lawsuits. Class action cases, on the other hand, involve a lead plaintiff(s) who, along with the lawyer for the class, represent the interests of a larger group of class members who have been harmed by the company in some common way. Class actions can range in size from 20-30 individuals to thousands of people. The NYPD glass ceiling case is filed as a class action and seeks to represent not only the three named plaintiffs but also, "[a]ll African-American detectives of the NYPD Intelligence Division who, as of December 14, 2008 or later, were not promoted or whose promotions were delayed based on race? . . ." Ultimately, the court will decide if the case can proceed as a class action under Federal Rule of Civil Procedure 23 or, instead, if the lawsuit must be broken up into a series of smaller cases. [GN] NEW YORK: Mayor Dead Wrong on 'No Harm' to Kids Exposed to Lead --------------------------------------------------------------- Melissa Russo, writing for NBC New York, reports that Mayor de Blasio said earlier children have not suffered as a result of his administration's failure to perform mandated annual lead paint inspections in thousands of NYC Housing Authority units throughout the city. But at least one family suing the city in federal court begs to differ. The class-action suit filed claims NYCHA knowingly and intentionally neglected its obligations to perform lead paint inspections, notify residents of hazards and remedy problems. It alleges that pattern disproportionately harms low-income families in violation of the Fair Housing Act and seeks unspecified compensatory, punitive and exemplary damages. Lead plaintiff Sherron Paige claims her son Kyan Dickerson was poisoned by lead in their home in the Red Hook East Houses. She says the boy was diagnosed with lead poisoning in July, after a routine blood test found elevated blood lead levels at 12 microgram per deciliter. Any reading greater than 5 micrograms per deciliter is considered dangerous, according to the Centers for Disease Control and Prevention. Kyan lived in his apartment for his entire life, but in the past two years his mother claims the housing authority saw and ignored a gaping hole in their walls after a pipe burst. Her attorney, Corey Stern, Esq. says that because Paige's building is known to have had lead paint in the past, the hole should have been a red flag that the apartment needed immediate inspection and abatement. It was not inspected. Documents obtained by the I-Team found that after Kyan's bloodwork came back with dangerous lead levels, NYCHA disputed the Department of Health's findings of lead hazards in the apartment, further delaying remediation. The lawsuit claims that "Kyan has suffered serious and permanent injury as a result of NYCHA's actions." Paige tells the I-Team her son has speech delays, difficulty focusing and behaves aggressively. "My son's not OK," she said. "My son has to suffer. And they need to take responsibility for that. My child deserves an apology." A recent report from the city's Department of Investigation found that NYCHA had stopped doing required annual inspections of all apartments where children age 6 and younger reside that are suspected of having lead contamination. The report said the mandated annual inspections stopped in 2012, under then-Mayor Michael Bloomberg. The de Blasio administration did not resume the inspections, but falsely claimed in federal paperwork that the city was in compliance with the law when it was not, the DOI report found. NYCHA has pledged sweeping changes in the wake of that report, and city officials said that childhood lead poisoning has declined by 90 percent since 2005. "The NYC Department of Health makes the final determination on abatement of all lead based paint hazards in both public or private housing," said Herminia Palacio, the deputy mayor for health and human services. Data on the number of lead poisoned children in NYCHA so far in 2017, when Kyan's mother says the boy was poisoned, are not yet available, the city says. At a news conference on Monday, de Blasio focused on a three-year period -- 2014, 2015 and 2016 -- and said only four children living in NYCHA apartments tested with elevated lead levels. His deputy mayor called the I-Team to say those numbers were incomplete -- that six children had been lead poisoned in NYCHA homes during that time. At that November 20 briefing, the mayor acknowledged NYCHA's failure to conduct required inspections on both Bloomberg's watch and his own. He said it never should have happened and should have been caught sooner. But he said the children who have been lead poisoned have not had medical consequences. "Thank God there has not been harm done to any child because of the mistakes that were made," he added. Research shows exposure to elevated lead levels can lead to problems with learning and reading, delayed growth and hearing loss, according to the American Academy of Child and Adolescent Psychiatry. High lead levels can cause permanent brain damage, the group says. And even small amounts of lead can cause children to appear inattentive, hyperactive and irritable. Paige wants to know how the mayor can say there's been no harm done. "How does he know that?" Paige asked. "How does he know the outcome of what the lead poisoning is gonna do to these kids?" Stern echoed his client's question. He said that if the apartments were never inspected, many families would never know to have their children tested for lead in the first place. "If I was his attorney, I would tell him to stop talking about it, " Stern said of de Blasio. "He's a frog in the well that's talking about the ocean. He has no idea what else is really out there, and he's going to have to live with the words he puts out there publicly." [GN] NEWFIT DALLAS: "Robinson" Suit Seeks Unpaid Overtime Wages ---------------------------------------------------------- Brenton Robinson, on behalf of himself and all others similarly situated, Plaintiff v. Newfit Dallas, Ltd, Defendant, Case No. 17- cv-03254, (N.D. Tex., November 30, 2017), seeks to recover actual and statutory damages, equitable relief, restitution, reimbursement of out-of-pocket losses, other compensatory damages, credit monitoring services with accompanying identity theft insurance and injunctive relief including an order requiring Equifax to improve its data security pursuant to the federal Fair Credit Reporting Act and the Wisconsin Deceptive Trade Practices Act. Newfit Dallas operates Fitness Connection, a chain of health and fitness clubs in the State of Texas where Robinson worked a general manager at their Carrollton TX location. Plaintiff's primary function was inside sales, making sales calls, conducting appointments with prospective customers for the purpose of selling them a membership or personal training, conducting tours of the club and getting referrals in order to sell memberships. Plaintiff routinely worked in excess of 40 hours but was not paid the mandatory overtime wages. [BN] Plaintiff is represented by: Richard C. Dalton, Esq. RICHARD C. DALTON, LLC 1343 W Causeway Approach Mandeville, LA 70471 Tel: (985) 778-2215 Fax: (985) 778-2233 Email: rick@rickdaltonlaw.com NFL: Concussion Settlement Test of Judicial Power ------------------------------------------------- Alison Frankel, writing for Reuters, reports that the $1 billion settlement of traumatic brain injury claims by retired NFL players is shaping up to be an important test of judicial power to regulate contracts between plaintiffs in multidistrict litigation and outside legal funders. There is, as you know, a booming industry in advancing cash to plaintiffs expecting payouts in personal injury cases. Funding deals can take a variety of shapes. Some litigation funders provide plaintiffs with non-recourse loans at relatively high interest rates. Other purchase an interest, or assignment, in settlement proceeds at a discount from the plaintiffs' anticipated payout. Either way, funding deals take place outside of the underlying personal injury case. They're private agreements between the funder and the plaintiff. The industry was once almost entirely unregulated, but that's changing. As Ms. Frankel reported, nearly a dozen states have recently enacted laws regulating some aspect of the business of advancing cash to plaintiffs. The federal Consumer Financial Protection Bureau has also claimed authority over lawsuit lenders, filing suits against two litigation financiers in 2016. One of those CFPB cases is against the New Jersey funder RD Legal, which has attacked the bureau's power to regulate its transactions, which are structured as assignments in which plaintiffs awaiting settlement payouts sell an interest in the proceeds they expect to collect. RD's lawyers at Boies Schiller Flexner contend those transactions are not in the CFPB's bailiwick. Among RD Legal's clients are seven plaintiffs in the NFL brain injury class. In total, an RD subsidiary advanced the seven NFL retirees $1.63 million in exchange for rights to $3.43 million of the cash they are expected to receive in the settlement. (The $3.43 million RD assignments are only a portion of the total $11.47 million these seven ex-players are slated to be paid.) The plaintiffs' lawyers leading the NFL multidistrict litigation, which was settled as a personal injury class action, filed an amicus brief in the CFPB case against RD Legal, arguing that RD's transactions with NFL retirees breached a provision of the settlement agreement that prohibits plaintiffs from assigning an interest in their claims to outside funders. Class counsel said they specifically included the no-assignment provision to stop litigation financiers from reaping a windfall at the expense of plaintiffs with cognitive impairments. RD responded that it hadn't taken advantage of anyone and hadn't violated the settlement agreement because it did not acquire an interest in plaintiffs' claims. Instead, RD argued, it purchased an interest in plaintiffs' settlement proceeds -- and those were not specifically addressed in the anti-assignment clause of the class action settlement. To interpret the scope of the anti-assignment provision, U.S. District Judge Loretta Preska of Manhattan, who is overseeing the CFPB's case against RD, turned to her counterpart in the NFL case, U.S. District Judge Anita Brody of Philadelphia. Judge Preska asked Judge Brody to determine if RD's agreements with its NFL clients violated the class action settlement. RD, class counsel and the CFPB (along with the New York attorney general) briefed that issue earlier this fall. That briefing dovetailed with Judge Brody's concern about funders and self-described claims service providers exploiting NFL retirees. In July, after The New York Times documented a "feeding frenzy" on ex-players covered by the settlement and class counsel requested injunctions to block unauthorized solicitations to class members, Judge Brody announced that she would hold a hearing on these financial pitches to class members. She ordered class counsel to conduct expedited discovery on outside claims facilitators and litigation financiers pitching their services to the NFL retirees. Based on that discovery -- and with the scope of the anti- assignment provision yet to be decided via the RD briefing -- class counsel from Seeger Weiss filed an extraordinary motion in the NFL case on Oct. 23. Seeger Weiss asked Judge Brody to issue a freeze on payouts to 15 third-party funders and claims service providers until the judge determined the validity of their claims. The claims administrator should continue to process settlement payouts to class members, Seeger Weiss said, but whatever portion of their recovery is supposedly owed to funders or facilitators should be placed in an escrow account. Seeger Weiss's motion included the stunning disclosure that at least 900 ex-players -- and possibly as many as 1,000 -- had entered deals with the two claims facilitators and 13 litigation funders named in the motion. It argued that unless Judge Brody acts prospectively to protect those 900 class members from "potentially unscrupulous third parties," it will be tough for class counsel to recoup any money the third parties weren't actually entitled to. The motion asserted three justifications for freezing payouts to facilitators and funders: the settlement agreement itself, which barred plaintiffs from assigning claims and granted Judge Brody continuing jurisdiction over class members and their lawyers; the federal rules for class actions, which invest Judge Brody with a responsibility to protect class members' interests; and the inherent power of the court to "go beyond the matters immediately underlying its equitable jurisdiction and decide whatever other issues and give whatever other relief may be necessary." It's entirely possible that just as many, or even more, plaintiffs in other big personal injury MDLs have entered funding arrangements. These deals don't usually come to light, as I mentioned, because they're private contracts struck outside of the underlying litigation. What's unusual about the NFL concussion case is that it's a class action, which puts every member of the class under the aegis of class counsel, and that Judge Brody ordered discovery on outside solicitations to class members. Such a broad inquiry into the propriety of funding agreements could be a watershed for the litigation finance industry, prompting other MDL judges to require plaintiffs to disclose post- settlement funding agreements for their own protection. But that can occur only if MDL judges actually have jurisdiction to monitor these private contracts. They don't, according to briefs in the NFL case from several of the entities on Seeger Weiss's no-pay list. The funders RD Legal and Walker Preston and the claims facilitators Case Strategies Group and Legacy Sports contend Judge Brody doesn't have authority over parties outside of the MDL. Among other things, they all pointed out that their clients, the NFL retirees, have not contested the third-party agreements. Nor have individual lawyers for the ex-players. So according to them, there's no case or controversy giving rise to federal court jurisdiction. "The requested relief manufactures disputes between third parties, class members, and their attorneys where none exist, and effectively rewrites the contracts of nonparties -- all without providing any admissible evidence of wrongdoing," wrote Case Strategies' lawyers from Montgomery McCracken Walker & Rhoads. "Class counsel attempts to have the court invoke its equitable powers to do what the law otherwise counsels against." The briefs also argue that Seeger Weiss is effectively asking for an injunction against paying the funders and facilitators without even trying to meet the high bar for injunctive relief. By its own concession, class counsel's brief doesn't actually allege the businesses on its no-pay list are not entitled to the money they contracted to be paid by class members, just that the payments may not be justified. That sort of speculation, said Case Strategies, Legacy and Walker Preston, falls way short of the persuasive evidence that would justify an injunction. (RD Legal said it does not oppose putting the contested payments in an escrow account; it also argued that the proliferation of funding deals by NFL class members proves RD's point that the settlement agreement's anti- assignment clause is, at best, unclear.) Nearly 40 percent of the civil cases on the federal court docket are in MDLs. As far as I'm aware, the NFL litigation will be the first to determine if MDL judges' authority extends to third-party funders who've entered deals with individual plaintiffs. This is one to watch. [GN] NRC HEALTH: Faces Class Actions Over Class B Stock Shares Buyback ----------------------------------------------------------------- Matt Olberding, writing for Lincoln Journal Star, reports that two shareholders have filed lawsuits seeking to stop NRC Health's plan to buy back and retire its Class B stock shares. Both lawsuits, filed in U.S. District Court, target CEO Michael Hays and members of the Lincoln company's board of directors. The suits, which are seeking class-action status, allege that the plan to buy back the Class B stock shares is a ploy to allow Hays to cash out of his Class B stock holdings while increasing his voting control over the company. One of the suits calls the plan an "extreme and illicit power grab" by Hays, while the other refers to it as "conflicted and self-serving." Mr. Hays founded NRC Health, which specializes in providing performance measurement and management software and services to healthcare companies, in 1981. The company became publicly traded in 1997 and moved to two classes of stock in 2013 after it said it wanted to increase flexibility and liquidity without diluting voting rights of existing shareholders. The recapitalization created Class A shares that were cheaper, and more-expensive Class B shares that carried six times the dividend rights and 100 times the voting rights of Class A shares. Before the split into two classes, the stock was very thinly traded and Mr. Hays owned more than half the shares. The move to two classes gave more people a chance to own shares without giving outsiders much power over company decisions. When it announced in September the plans to retire the Class B shares, NRC Health said investors found the dual-class share structure confusing. Both lawsuits claim that the plan to retire the Class B shares will unjustly enrich Hays while shortchanging other holders of Class B stock. According to the lawsuit, Mr. Hays' voting power will be increased from 54 percent to 92 percent. The suit also says the company's offer of $53.44 per Class B share is inadequate because it is lower than the price of the shares on the day it was announced. NRC Health has said buying back and retiring the Class B shares will cost more than $100 million, and it will have to borrow about $70 million to complete the transaction. The suit alleges that the plan violates Wisconsin law, which prohibits a stock repurchase if after the repurchase, the company's liabilities would exceed its assets. NRC Health is incorporated in Wisconsin. Though the plan does have to be approved by shareholders, the lawsuits say its approval is a foregone conclusion because Hays holds more than half the voting rights. Both lawsuits are seeking temporary and permanent injunctions to stop the plan from going forward. One of the suits also seeks more than $100 million in damages if the stock retirement is allowed to go forward. NRC Health officials declined to comment on the lawsuit. [GN] OCERA THERAPEUTICS: "Paulus" Sues Over Onerous Merger Deal ---------------------------------------------------------- William Paulus, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. Ocera Therapeutics, Inc., Eckard Weber, Linda S. Grais, Willard Dere, Steven P. James, Nina Kjellson, Anne M. Vanlent and Wendell Wierenga, Defendants, Case No. 17-cv-06876, (N.D. Cal., November 30, 2017), seeks to enjoin defendants and all persons acting in concert with them from proceeding with, consummating or closing the acquisition of Ocera by Mallinckrodt PLC, rescinding it in the event defendants consummate the merger, rescissory damages, costs of this action, including reasonable allowance for plaintiff's attorneys' and experts' fees and such other and further relief under the Securities Exchange Act of 1934. Each shareholder of Ocera common stock will receive $1.52 per share. Additionally, each Ocera share will be converted automatically into the right to receive one Contingent Value Right, estimated to be $2.58. The CVR together with the $1.52 in cash represent the transaction consideration. The Plaintiff says the merger documents omitted material information regarding Ocera's financial projections as projected free cash flows. Said disclosure of projected financial information is material because it provides stockholders with a basis to project the future financial performance of a company, and allows stockholders to better understand the financial analyses in support of its fairness opinion. Also the merger agreement contains a no solicitation provision that prohibits the company from taking any affirmative action to obtain a better deal for Ocera stockholders. [BN] Ocera is a clinical stage biopharmaceutical company focused on the development and commercialization of ornithine phenylacetate in both intravenous and oral formulations for the treatment of hyperammonemia and resultant hepatic encephalopathy in patients with acute liver failure and acute-on-chronic liver disease. Plaintiff is represented by: David E. Bower, Esq. MONTEVERDE & ASSOCIATES PC 600 Corporate Pointe, Suite 1170 Culver City, CA 90230 Tel: (213) 446-6652 Email: dbower@monteverdelaw.com - and - Juan E. Monteverde, Esq. MONTEVERDE & ASSOCIATES PC The Empire State Building 350 Fifth Avenue, 59th Floor New York, NY 10118 Telephone: (212) 971-1341 Email: jmonteverde@monteverdelaw.com OVASCIENCE INC: Scott+Scott Files Securities Class Action --------------------------------------------------------- Scott+Scott, Attorneys at Law, LLP ("Scott+Scott"), a national securities and consumer rights litigation firm, disclosed that it has filed a class action against OvaScience, Inc. ("OvaScience" or the "Company") (NASDAQ:OVAS) and certain of its senior executives and directors (collectively, "Defendants"). The action, which is filed in the U.S. District Court for the District of Massachusetts, asserts claims under Sections 11, 12(a), and 15 of the Securities Act of 1933 (the "Securities Act"), on behalf of investors who purchased OvaScience common stock directly in the Company's January 8, 2015 Secondary Offering and who were damaged thereby (the "Class"). OvaScience is a life science company that engages in the discovery, development, and commercialization of new treatments for infertility. The Company is attempting to develop various fertility treatment options purported to enhance egg health and revolutionize in vitro fertilization ("IVF"). The Company's Autologous Germline Mitochondrial Energy Transfer ("AUGMENT") treatment, designed to improve the energy and health of the woman's eggs by using mitochondria from a woman's egg precursor cells ("EggPCs"), is available in certain IVF clinics in select international regions. According to the complaint, Defendants violated provisions of the Securities Act by issuing false and misleading statements to investors, including in filings with the U.S. Securities and Exchange Commission ("SEC"). Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (1) the very science behind AUGMENT was untested and in doubt; (2) the patients that had received OvaScience's AUGMENT procedure in 2014 did not achieve a pregnancy success rate that was significantly higher than the rate achieved without the Company's AUGMENT procedure; (3) the Company had not chosen to undertake its studies outside of the United States, but was forced to as it did not want to meet stringent and expensive federal regulations; and (4) the Company was far from being profitable, or even approaching profitability. If you wish to serve as lead plaintiff, you must move the Court no later than January 22, 2018. Any member of the proposed class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain a member of the proposed class. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel, Rhiana Swartz of Scott+Scott at (844) 818- 6980, or via email at rswartz@scott-scott.com. About Scott+Scott, Attorneys at Law, LLP Scott+Scott has significant experience in prosecuting major securities, antitrust, and employee retirement plan actions throughout the United States. The firm represents pension funds, foundations, individuals, and other entities worldwide with offices in New York, London, Connecticut, California, and Ohio. [GN] OXNARD, CA: Sued Over Illegal Special Education System ------------------------------------------------------ Alexa D'Angelo, writing for VC Star, reports that a lawsuit seeking class-action status alleges the Oxnard School District has been operating with an illegal system for identifying children with special education needs, according to court records. "These cases are representative of a widespread, systematic failure by the district to ensure that it identifies students in possible need of services and accommodations, timely evaluates for such services, provides related procedural safeguards and ultimately provides needed services and accommodations so that these students can access their education in a meaningful way," the plaintiffs allege, according to court records. The lawsuit alleges the K-8 district has been using an informal system to identify students with potential disabilities instead of following the rules and guidelines required by law -- which spell out a formal assessment process for identifying students with potential disabilities. The informal system consists of "student success team" meetings where school staff members discuss a student's progress, or lack thereof, in school. The lawsuit alleges these meetings do not exist under any kind of education law and are provided instead of mandatory referrals for assessment. The main difference between the formal and informal system is that the formal one requires an assessment be made by a child psychologist, while the informal one is more of a discussion between teachers and school staff members, according to court records. Janeen Steel, the co-executive director and co-founder of the nonprofit Learning Rights Law Center, is one of three lawyers representing the plaintiffs. Ms. Steel, who is also the director of litigation and advocacy at the Learning Rights Law Center, said the lawsuit was originally filed in September and that she could not yet say how many parties are in the class. Ms. Steel is representing the plaintiffs with two other lawyers, Shawna Parks from the Law Office of Shawna L. Parks and Stuart Seaborn from Disability Rights California. The lawsuit names the Oxnard School District Board of Trustees and Superintendent Cesar Morales as defendants. "All children should have access to education," Ms. Steel said. "When you are taking away a child's trajectory in education . . . it's not fair. I have not seen (these cases) at this breadth before." Ms. Steel said it's not uncommon to see individual cases of this nature against districts, but the fact that there are many is cause for concern and suggests a problem with the system the district is operating in. The cases aren't centralized to one or two schools in the district, Steel said, but are at multiple locations. One of the students named in the lawsuit displayed obvious difficulties in school as early as first grade during the 2013-14 school year, according to the lawsuit. Despite those documented struggles, the district held seven of the informal student success team meetings over the course of four years before the student got a formal evaluation. When the student was formally evaluated, results showed that the student functioned academically below 99.9 percent of peers, according to the lawsuit. "Academically, it is as if (the student) has not received any education at all," the plaintiffs allege, according to court records. "She cannot consistently write her name and reads at a kindergarten level." Ms. Steel said she hopes the lawsuit will encourage the district to change its system and evaluate and provide services for students with disabilities. Morales said the district is utilizing its infrastructure for identifying students with potential disabilities and that there are "excellent systems in place." "I'm confident that the district's present systems in place are established to best meet the needs of students," Morales said. "Whenever there is concern brought forward staff is ready to problem-solve with parents and do that is in the best interest of the student." Mr. Morales said the student success teams are a "best practice" the district uses, but that the district also adheres to the law and operates using the formal assessment process. Mr. Morales also noted the district has many special education programs for specialized populations -- such as students with hearing difficulties or autism. "We are all committed to doing what is best for our students and what is best for their needs," Mr. Morales said. Ms. Steel and the other attorneys are filing a motion to certify the class. [GN] PALATINE, IL: Ballard Spahr Attorney Discusses Ruling ----------------------------------------------------- Burt M. Rublin, Esq. -- rublin@ballardspahr.com -- and Wesley S. Stevenson, Esq. -- stevensonw@ballardspahr.com -- of Ballard Spahr LLP, in an article for The National Law Review, report that addressing the often confusing issue of when class action tolling ends, in Collins v. Village of Palatine, the U.S. Court of Appeals for the Seventh Circuit announced the adoption of a simple and uniform rule: The statute-of-limitations clock resumes when a non- certified class action lawsuit is dismissed, regardless of whether an appeal is taken or the dismissal is with or without prejudice. In American Pipe & Construction Co. v. Utah, the U.S. Supreme Court held that filing a class action suit tolls the statute of limitations for each member of the putative class. Since American Pipe, federal courts have clarified that tolling ends when class action certification is denied, when class members opt out of a certified class, when the suit is dismissed for lack of subject matter jurisdiction or otherwise dismissed without prejudice, and when the class component is voluntarily dismissed. But what if the original suit was dismissed with prejudice and there is an appeal? Does tolling stop immediately upon dismissal, or does it continue until any and all appeals are exhausted? In Collins, Michael Collins brought a lawsuit in March 2016 alleging the Village of Palatine -- a small town in Cook County, Illinois -- violated his privacy rights under the Driver's Privacy Protection Act (DPPA) by displaying personal identification on a ticket left on his car in June 2007. Collins argued that his suit was timely, despite the DPPA's four-year statute of limitations, because an earlier class action suit, Senne v. Village of Palatine, tolled his limitations period. Jason Senne's proposed class action was filed in August 2010, and was dismissed with prejudice just one month later for failure to state a claim. However, over the next five years, Senne appealed -- until November 2, 2015 -- when the Supreme Court denied certiorari. The Seventh Circuit held that the tolling of the statute of limitations on Collins' claim stopped on September 20, 2010 -- when Senne's proposed class action was dismissed with prejudice. It grounded its holding in the same judicial efficiency concerns at the center of American Pipe, and stressed that extending tolling beyond the dismissal of a non-certified class action would expose defendants to stale claims. The Seventh Circuit reasoned that this primary function of statutes of limitations is best served by immediately resuming the limitations clock upon dismissal, regardless of the pendency of an appeal. [GN] PARAGON COMMERCIAL: Franchi Files Suit Over Sale to Townebank ------------------------------------------------------------- Anthony Franchi, individually and on behalf of all others similarly situated, Plaintiff, v. Paragon Commercial Corporation, Paragon Commercial Bank, Howard Jung, Robert C. Hatley, Curtis C. Brewer, III, K. Wesley M. Jones, Thomas B. Oxholm, Roy L. Harmon, F. Alton Russell, Townebank and TB Acquisition, LLC, Defendants, Case No. 17-cv-00591 (E.D. N.C., November 30, 2017), seeks to enjoin defendants and all persons acting in concert with them from proceeding with, consummating or closing the acquisition of the Paragon firms by Townebank and TB Acquisition, rescinding it in the event defendants consummate the merger, rescissory damages, costs of this action, including reasonable allowance for plaintiff's attorneys' and experts' fees and such other and further relief under the Securities Exchange Act of 1934. Pursuant to the terms of the Merger Agreement, shareholders of Paragon will receive 1.725 shares of Towne common stock for each share of Paragon common stock. According to the complaint, the merger documents omitted material information regarding Paragon's financial projections for years 2020 through 2022 as well as projected free cash flows as well as the valuation analyses performed by Raymond James & Associates. Said disclosure of projected financial information is material because it provides stockholders with a basis to project the future financial performance of a company, and allows stockholders to better understand the financial analyses in support of its fairness opinion, it adds. Paragon operates Paragon Bank, an independent, non-public bank based out of Raleigh NC. [BN] Plaintiff is represented by: RIGRODSKY & LONG, P.A. 2 Righter Parkway, Suite 120 Wilmington, DE 19803 (302) 295-5310 - and - RM LAW, P.C. 1055 Westlakes Dr., Ste. 3112 Berwyn, PA 19312 Tel: (484) 324-6800 - and - Janet Ward Black, Esq. Nancy Meyers, Esq. WARD BLACK LAW 208 W. Wendover Ave. Greensboro, NC 27401 Tel: (336) 333-2244 Fax: (336) 379-9415 Email: jwblack@wardblacklaw.com PENNSYLVANIA: Justices Drop Sheriff from Concealed Weapon Lawsuit ----------------------------------------------------------------- Mark Scolforo, writing for San Francisco Chronicle, reports that concealed weapon permit-holders cannot sue a central Pennsylvania sheriff over permit notices he sent out on postcards, which they say violated their privacy rights, the state Supreme Court ruled Wednesday. The justices unanimously dismissed the former sheriff of Franklin County from what could become a class-action case, although other defendants remain. The plaintiffs claim the postcards, informing people about permit approvals, denials, revocations and renewals, violate privacy rules in the Uniform Firearms Act which carry civil penalties for violations. The decision reverses a finding by the Commonwealth Court, which said last year that the sheriff was not protected from lawsuits by the concept of "high public official immunity." "We decline to hold the General Assembly implicitly abrogated immunity for the sheriff through the use of general, undefined terms," wrote Justice Kevin Dougherty. "We recognize permitting such implicit abrogation of high public official immunity would undermine the purpose and goal of the doctrine, the value of which has been consistently upheld and recognized by this court." A lawyer for the four anonymous people who are suing said they plan to ask the justices for reconsideration or re-argument about the constitutionality of high public official immunity. The decision released said explicitly it concerned the law and was not decided on constitutional grounds. Josh Autry, Esq. -- jautry@laverylaw.com -- who represents the former sheriff, Franklin County and the sheriff's office, said the case will return to county court. Outstanding issues include whether the case will be certified as class-action and how far back the statute of limitations goes. At issue is state law that allows disclosure of concealed carry license applicants' information only to courts or criminal justice agencies. Violations carry civil damages of $1,000 per occurrence as well as legal fees, and triple damages for those who can show how the policy actually harmed them. The plaintiffs believe more than 10,000 licensees could be covered by the case. A county judge previously had dismissed the entire case before it was revived by Commonwealth Court. [GN] POWERSECURE INT'L: Securities Class Action Dismissal Affirmed ------------------------------------------------------------- Shearman & Sterling LLP, in an article for Lexology, wrote that on November 15, 2017, the United States Court of Appeals for the Fourth Circuit affirmed the dismissal of a putative securities fraud class action against PowerSecure International, Inc. (the "Company" or "PowerSecure"), and Sidney Hinton, its president and CEO. Maguire Fin. LP v. PowerSecure Int'l Inc., No. 16-2163 (4th Cir. Nov. 15, 2017). Plaintiffs alleged that defendants defrauded investors by knowingly making misrepresentations about the renewal of a major contract in violation of Section 10(b) of the Securities Exchange Act of 1934. The district court dismissed the complaint after finding that plaintiffs failed to adequately allege scienter. The Fourth Circuit affirmed, stating that "[a] plaintiff may not stack inference upon inference" to satisfy the PSLRA's heightened pleading requirements for scienter. PowerSecure provides utility and energy solutions to electric utilities and their customers. One of the Company's major contracts was with Florida Power & Light ("FP&L"), the largest electric utility in Florida. In a press release in June 2013, the Company announced that it had "renewed and expanded three year utility infrastructure . . . award to serve one of the nation's largest investor owned utilities." Hinton reiterated this statement on an analyst call in August, stating that PowerSecure was "blessed to announce securing a $49 million three-year contract renewal, both the renewal and expansion with one of the largest investor [owned] utilities in the country." The following May, PowerSecure reported a first quarter loss of almost $4.3 million. It attributed the loss to substantial increases in operating expenses due to the fact that FP&L had changed the geographies the Company was serving from West Palm Beach to Ft. Myers. The Company also stated that it "probably underestimated the negativity [and] the complexity of basically starting from scratch in a new territory," including losing employees who did not want to commute over 100 miles to fulfill the new contract and hiring and training new workers at significant expense. PowerSecure's stock price fell more than 62% the following day, and shareholders filed suit. The Fourth Circuit affirmed the district court's dismissal of the complaint on the basis that plaintiffs failed to adequately allege scienter. In so doing, the Court rejected plaintiffs' primary argument that defendants' alleged knowledge that the statement was false was sufficient to show scienter. The Court explained that plaintiffs' "argument fuses an inference that Hinton knew enough to realize that his characterization was technically incorrect with an inference that he intended it to deceive." "Stacking inference upon inference," the Fourth Circuit held, "violates [the PSLRA's] mandate that the strong inference of scienter be supported by facts, not other inferences." The Fourth Circuit also found that the complaint, when taken as a whole, did not allow the Court to draw a strong inference of scienter. First, The Court found that the statement at issue did not support an inference that defendants intended to deceive investors into thinking that the Company could continue to serve the same region or otherwise maintain its profitability. Second, the Court declined to find intent to deceive from defendants' use of a "single possibly ambiguous word," noting that the fact of the contract's renewal "itself embraces the possibility that the new contract was not a renewal on identical terms." Finally, the Court rejected plaintiffs' attempt to establish scienter through Hinton's own sale and transfer of PowerSecure stock, observing that Hinton did not sell his shares when their value was at the highest and that the transfer of shares was made months after the alleged misstatement. This case highlights the difficulty of pleading scienter and further reinforces that, in order to do so, a plaintiff must plead facts that give rise to a strong inference that defendants intentionally or recklessly deceived, manipulated, or defrauded investors. [GN] PTTEP AUSTRALASIA: Seaweed Farmers' Class Action Given Go-Ahead --------------------------------------------------------------- Stephanie Zillman, writing for ABC News, reports that federal Court Justice David Yates granted the lead applicant in the class action, Indonesian seaweed farmer Daniel Sanda, an extension of time to bring the claim against PTTEP Australasia. Under Northern Territory law, class actions typically have to be lodged within three years of an incident, but Justice Yates waived that limitation. In 2009, thousands of litres of oil spewed into the Timor Sea for 70 days straight from an uncontrolled leak at PTTEP Australasia's Montara petroleum rig. The rig is in the Timor Sea, about 690 kilometres west of Darwin, and 250 kilometres southeast of Rote Island, Nusa Tenggara Timur, Indonesia -- where the majority of seaweed farmers live. The company had previously told the ABC the oil spill was contained and never reached the Indonesian coastline. PTTEP Australasia has been contacted for a comment on the Federal Court's decision to hear the class action. Lawyer Ben Slade, Esq. who is leading the class action on behalf of the 15,000 seaweed farmers, said their case would focus on the core issues of alleged wrongdoing and compensation. "We are now looking forward to presenting the farmers' evidence and having it heard and determined by Justice Yates," Mr Slade said. "This win means we can get on with the real business of securing appropriate redress for the thousands of Indonesian seaweed farmers who have had their lives severely impacted by the oil spill." [GN] QUDIAN: Investor Class Action Mulled Over Stock Price Drop ---------------------------------------------------------- Xie Yu and Jane Li, writing for South China Morning Post, report that Qudian, the Chinese online payday loan platform, could be facing a rash of class-action lawsuits in the US after its share price tumbled drastically on the New York Stock Exchange, triggering concerns over the integrity of the firm. New York-based law firm Faruqi & Faruqi, is now encouraging investors in Qudian to get in contact with it, as it is now "investigating potential claims against Qudian", it said in a statement. Qudian was unavailable for comment. Shares in the leading provider of online small consumer credit in China tumbled 5.28 per cent on Nov. 20 to close at US$20 in New York, 16.7 per cent down from its IPO price of US$24, and more than 40 per cent down from a historic intraday high of $35 reached on its trading debut on October 18. Qudian, which is backed by Alibaba Group affiliate Ant Financial, raised US$900 million -- the largest IPO in the US by a Chinese company this year. Its share price have already been experiencing wild swings since mainland social media reports accused the business of "exploiting" students and blue collar workers, particularly, with high interest rates, allegedly selling of customers' personal details, and that it is now facing regulatory tightening in China. Qudian on Nov. 21 denied the allegations that it had been selling any customer data. The investigation could prove another serious blow to the reputation of China's payday loan industry. Another P2P lender He Xin Dai, which launched a US$88 million IPO in New York in early November, also saw shares drop by 6.6 per cent on the Nasdaq on Nov. 20, after it had added more than 60 per cent on its debut. But when there is a lot of media coverage, or other public scrutiny of the company's activities underlying the allegations, it can be easier to file a lawsuit, and proceed quickly. Bringing a case and proving the case are two different things Meg Utterback, international partner at the law firm King & Wood Mallesons in Shanghai, said traditionally "it has been challenging to prove any wrongdoing from the relationship between a drop in stock value and any alleged problems" with each case having to be judged on their own merits. "But when there is a lot of media coverage, or other public scrutiny of the company's activities underlying the allegations, it can be easier to file a lawsuit, and proceed quickly, she added. "Bringing a case and proving the case are two different things. Chinese companies have listed on US stock exchanges in increasing numbers over the last decade, taking advantage of more readily available capital, less stringent listing criteria, and the greater recognition and prestige that comes with listing on the world's largest bourses, she added. "Stricter scrutiny, disclosure requirements, and weakness of some companies' governance are now making it easier to become class- action lawsuit targets. "However, the profiles of Chinese companies going public in the States have changed a lot too in the past few years with many improving their levels of corporate governance, and becoming more sophisticated about what are their listing requirements," she said. Qudian said revenue and profit rose more than 300 per cent in its third quarter from a year ago, in its first quarterly report following the IPO. The three-year-old company, which focuses on providing short-term loans to businesses and young adults who have a hard time getting bank loans, reported a profit of $97.8 million, up from $23.2 million, in the prior-year quarter. Chinese lawyer Wang Zhibin, from Shanghai-based Bright & Young Law Firm, which mainly represents China's retail investors, added: "The compensation scale of the class-action against Qudian could be much larger than in China, ranging from several millions of US dollars to even billions." He explained this is because of the difference between the two countries' law systems. While China adopts a "no prosecution, no compensation" principle which means only the investors who bring up the lawsuits against the companies they invest in can get compensation once the court finds the companies guilty, in the US, all investors who put money into a company, as long as they fulfil the requirements set by the court, are including. "The class actions could last two years in China, and might be longer in the US." he said. [GN] RECEIVABLE COLLECTION: Faces "Daniels" Suit in E.D. New York ------------------------------------------------------------ A class action lawsuit has been filed against Receivable Collection Services, LLC. The case is styled Tanisha Daniels, on behalf of herself and all others similarly situated, Plaintiff v. Receivable Collection Services, LLC, Defendant, Case No. 2:17-cv- 07206 (E.D. N.Y., December 11, 2017). Receivable Collection Services, LLC is engaged in debt collection.[BN] The Plaintiff is represented by: Craig B. Sanders, Esq. Sanders Law, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Tel: (516) 203-7600 Fax: (516) 281-7601 Email: csanders@sanderslawpllc.com REGENT CATERING: "Peralta" Suit Seeks OT, Spread-of-Hours Pay ------------------------------------------------------------- Jose Luis Peralta, on behalf of himself and all others similarly situated, Plaintiffs, v. Regent Catering, Inc., Tommy Kolitsopoulos and Francesca Kolitsopoulos (a/k/a Francesca Mulone), Defendants, Case No. 17-cv-06993, (E.D. N.Y., November 30, 2017), seeks unpaid minimum wages, overtime compensation, liquidated damages, prejudgment and post-judgment interest, unpaid spread-of-hours premium, unpaid agreed-upon-wages, redress for unlawful retention of tips, compensation for failure to provide wage notice at the time of hiring and failure to provide paystubs, liquidated damages, reasonable attorneys' fees, costs, prejudgment and post-judgment interest in violation of the Fair Labor Standards Act and New York Labor Laws. Plaintiff worked for Defendants as a food preparer for their coffee shop located at 3029 College Point Boulevard, Flushing, New York, 11354 from December 1, 2014 to on or about August 28, 2017. Defendants required Plaintiff to work a total of 80 hours per week without overtime pay. [BN] Plaintiff is represented by: Louis M. Leon, Esq. LAW OFFICES OF WILLIAM CAFARO 108 West 39th Street, Suite 602 New York, NY 10018 Tel: (212) 583-7400 Email: LLeon@Cafaroesq.com RUBY TUESDAY: Monteverde & Associates Files Class Action -------------------------------------------------------- Monteverde & Associates PC disclosed that it has filed a class action lawsuit in the United States District Court for the Eastern District of Tennessee Northern Division, case no. 3:17-cv-00478, on behalf of shareholders of Ruby Tuesday, Inc. ("Ruby Tuesday" or the "Company") (NYSE: RT) who held Ruby Tuesday securities and have been harmed by Ruby Tuesday and its board of directors' alleged violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") in connection with the merger of the Company to NRD Capital (the "Proposed Merger"). Under the terms of the merger agreement, Ruby Tuesday shareholders are only anticipated to receive $2.40 in cash in exchange for each share of Ruby Tuesday. The complaint alleges that the Proposed Merger is unfair to Ruby Tuesday shareholders and that the preliminary proxy statement regarding the Proposed Merger (the "Proxy") provides materially incomplete and misleading information about the Company's financials and the fairness of the Proposed Merger, in violation of Sections 14(a) and 20(a) of the Exchange Act. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from November 16, 2017. Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. If you wish to discuss this action, or have any questions concerning this notice or your rights or interests, please contact Monteverde & Associates PC: Click here for more information: http://monteverdelaw.com/investigations/m-a/. It is free and there is no cost or obligation to you. Monteverde & Associates PC is a boutique class action securities and consumer litigation law firm that has recovered millions of dollars and is committed to protecting shareholders and consumers from corporate wrongdoing. Monteverde & Associates lawyers have significant experience litigating Mergers & Acquisitions and Securities Class Actions, whereby they protect investors by recovering money and remedying corporate misconduct. Mr. Monteverde, who leads the legal team at the firm, has been recognized by Super Lawyers as a Rising Star in Securities Litigation in 2013 and 2017, an award given to less than 2.5% of attorneys in a particular field. [GN] SAC CAPITAL: Reed Smith Loses Bid to Sue Co-Counsel Over Fees ------------------------------------------------------------- Christine Simmons, writing for Law.com, reports that a federal judge has shot down Reed Smith's attempt to sue its former co-counsel, law firm Wohl & Fruchter, in state court for its share of fees from a class action against SAC Capital Advisors, finding Reed Smith was "seeking a mulligan." [GN] SCANA CORP: Bernstein Litowitz Files Securities Class Action ------------------------------------------------------------ Bernstein Litowitz Berger & Grossmann LLP ("BLB&G") disclosed that it filed a securities class action lawsuit on behalf of its client West Palm Beach Firefighters' Pension Fund against SCANA Corporation ("Scana" or the "Company") (NYSE: SCG), and certain of the Company's current and former senior executives (collectively, "Defendants"). The action, which is captioned West Palm Beach Firefighters' Pension Fund v. SCANA Corporation, No. 3:17-cv- 03141-MBS (D.S.C.), asserts claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act"), 15 U.S.C. Secs. 78j(b) and 78t(a), and SEC Rule 10b-5 promulgated thereunder, 17 C.F.R. Sec. 240.10b-5, on behalf of investors who purchased Scana's publicly traded securities from January 19, 2016 to October 30, 2017, inclusive (the "Class Period"). This case is substantially related to Norman v. SCANA Corporation, No. 3:17-cv-02616-MBS (D. S.C.) ("Norman"), the first-filed securities class action in this matter, which is presently pending before the Honorable Margaret B. Seymour. Pursuant to the notice published on September 28, 2017 in connection with the filing of the Norman action pursuant to the Private Securities Litigation Reform Act of 1995, investors wishing to serve as Lead Plaintiff are required to file a motion for appointment as Lead Plaintiff by no later than November 27, 2017. The Complaint alleges that during the Class Period, Defendants falsely stated that the construction of two nuclear reactors at the Company's Virgil C. Summer generating station was progressing well. The Complaint further alleges that Scana misrepresented that it was acting prudently when working on the nuclear project, and was therefore able to generate significant revenues to offset its costs by increasing customer rates. In truth, Defendants knew that the V.C. Summer project suffered from a host of fundamental issues that were far more serious than disclosed to investors, and that Scana was not acting prudently when managing product. Scana's misrepresentations regarding these facts have resulted in criminal investigations by the U.S. Attorney's Office in South Carolina and the FBI, culminating in former CEO Kevin Marsh's and Executive Vice President Stephen Byrne's resignations. The news of the resignations caused the price of Scana stock to decline from $46.50 per share on October 27, 2017 to $43.14 per share on October 31, 2017, or approximately 7%. West Palm Beach Firefighters' Pension Fund is represented by BLB&G, a firm of over 100 attorneys with offices in New York, California, Louisiana, and Illinois. If you wish to discuss this Action or have any questions concerning this notice or your rights or interests, please contact Avi Josefson of BLB&G at 212-554- 1493, or via e-mail at avi@blbglaw.com. Since its founding in 1983, BLB&G -- http://www.blbglaw.com-- specializes in securities fraud, corporate governance, shareholders' rights, employment discrimination, and civil rights litigation, among other practice areas, BLB&G prosecutes class and private actions on behalf of institutional and individual clients worldwide. [GN] SIGNATURE HEALTHCARE: "Hosein" Suit Seeks Overtime Pay, Damages --------------------------------------------------------------- Sourswatee Hosein, and other similarly situated individuals, Plaintiff, v. Signature Healthcare Consulting Services, LLC (d/b/a Golfcrest Nursing Home) and Signature Payroll Services, LLC, Defendants, Case No. 17-cv-62348 (S.D. Fla., November 30, 2017), seeks to recover money damages for unpaid minimum and overtime wages, liquidated damages, costs, and reasonable attorney's fees pursuant to the Fair Labor Standards Act and for violations of the Florida Private Whistleblower Statutes. Defendants operate 148 health care and rehabilitation facilities in 11 states. Hosein worked as a line cook working approximately 40-45 hours per week, usually rendering off the clock work and working through her lunch breaks. Plaintiff was fired on August 10, 2017, for complaining about the unsafe nature of certain tasks assigned to her, in particular, cleaning steaming tables while still hot. [BN] The Plaintiff is represented by: R. Martin Saenz, Esq. SAENZ & ANDERSON, PLLC 20900 NE 30th Avenue, Ste. 800 Aventura, FL 33180 Telephone: (305) 503-5131 Facsimile: (888) 270-5549 Email: msaenz@saenzanderson.com SNAP INC: Judge May Send Class Action Back to State Court --------------------------------------------------------- Melissa Daniels, writing for Law360, report that a California federal judge on Nov. 20 said she's inclined to send back to state court a putative class action from Snap Inc. investors accusing the company of understating the stock-based compensation incurred as part of its initial public offering by $300 million, while the tech giant urged her to retain jurisdiction for the purpose of sending a certified question to the Delaware Supreme Court. U.S. District Judge Virginia A. Phillips tentatively ruled to remand the suit, which was filed by named plaintiff Joseph Iuso. He says that Snap told investors it would incur $1.7 billion in stock-based compensation in connection with its IPO, but a subsequent securities filing said the expense was $2 billion. The suit was initially filed in California state court this August, but Snap removed it, pointing to a provision in its charter that says federal securities claims must be litigated in federal court. In a motion to remand the case, Judge Iuso urged the court to send the case back down, saying that provision is invalid under the law in Delaware, where Snap is incorporated. Snap's attorney, Boris Feldman -- Boris.Feldman@wsgr.com -- of Wilson Sonsini Goodrich & Rosati PC, urged Judge Phillips to reconsider her tentative ruling, saying that if the court holds onto the case, it can clear up whether the federal jurisdiction provision is valid. "You have the power to certify a question to the Delaware Supreme Court," whereas the California Superior Court does not, Mr. Feldman said. Mr. Feldman also requested that Judge Phillips stay the action until there is a ruling in Cyan Inc. et al. v. Beaver County Employees Retirement Fund et al., a U.S. Supreme Court case over whether it may be possible to remove class actions arising under the Securities Act of 1933 to state courts. That case is scheduled to be heard by the Judge, Mr. Feldman said. "I think it's more efficient to hold it here and see what way Cyan turns out," Mr. Feldman said. Judge Phillips took the matter under submission. The hearing took place in the third jurisdiction that the three-month-old case has been in so far -- it was first filed in San Mateo County, California, Court, then removed to the federal jurisdiction in the Northern District of California, then transferred to Judge Phillips in the Central District of California in June, court records show. The suit names a crop of Snap executives, including CEO Evan Spiegel and Chief Technology Officer Robert Murphy and other directors. Other defendants include multiple financial groups that were underwriters in Snap's IPO. Judge Iuso claims that Snap informed its investors that its stock- based compensation expense in connection with its IPO would be $1.7 billion, though it ended up incurring an expense of $2 billion. "When the truth was revealed, Snap's stuck plummeted, harming plaintiff and other investors," the suit said. The complaint said investors lost $700 million as a result of Snap shares' dropping from a close of $22.98 per share to $18.05 per share when the truth about its stock-based compensation came out. By August 11, 2017, Snap stock closed at $12.58 per share, the suit says. The complaint brings a claim under the Securities Act of 1933 for making allegedly untrue statements of material facts in the company's registration statement. The proposed class includes those who bought Snap common stock pursuant to its IPO on March 1, 2017. In the motion for remand, Judge Iuso argued that Snap cannot remove the case to federal court because the federal forum provision in its charter is invalid in Delaware. Judge Iuso also opposed Snap's argument that state courts can't hear federal securities law class actions under the Securities Litigation Uniform Standards Act of 1998. Jeffrey C. Block -- jeff@blockesq.com -- of Block & Leviton told Judge Phillips at the Nov. 20 hearing that the plaintiffs agreed with her tentative ruling to grant their motion to remand. Twenty- four other cases in the circuit have seen courts reject the same removal argument Snap is making regarding what the SLUSA allows, he said. "I think we're at 25-0," he said. He also said that the court can't stay the action as Snap requested. "You don't have the authority to stay it because you don't have jurisdiction," he said. Mr. Feldman countered that such an argument is "black-and-white wrong," saying a federal court can always have jurisdiction over a federal claim. He also reminded Judge Phillips that while the initial state court filing occurred in Northern California, Snap's headquarters are in Los Angeles County. Attorneys for the parties declined to comment. The plaintiffs are represented by Jeffrey C. Block -- jeff@blockesq.com -- Jacob A. Walker -- jake@blockesq.com -- and Joel Fleming -- joel@blockesq.com -- of Block & Leviton LLP. Snap Inc. and the individual defendants are represented by Boris Feldman and Ignacio E. Salceda -- ISalceda@wsgr.com -- of Wilson Sonsini Goodrich & Rosati PC. Seven of the underwriter defendants -- Morgan & Stanley Co. LLC, Goldman Sachs & Co., JP Morgan Securities LLC, Deutsche Bank Securities Inc., Barclays Capital Inc., Credit Suisse Securities (USA) LLC and Allen & Company LLC -- are represented by Matthew W. Close -- mclose@omm.com -- of O'Melveny & Myers LLP. Counsel for other underwriter defendants wasn't immediately available. The case is Iuso v. Snap Inc. et al., Case No. 2:17-cv-07176 (C.D. Cal.). The case is assigned to Judge Virginia A. Phillips. The case was filed September 28, 2017. [GN] SONIC CORP: Faces "Dolembo" Suit in Northern District of Ohio ------------------------------------------------------------- A class action lawsuit has been filed against Sonic Corp. The case is styled as John Stephen Dolembo and Denise Ramirez, on behalf of all others similarly situated, Plaintiffs v. Sonic Corp., Defendant, Case No. 1:17-md-02807 (N.D. Ohio, December 11, 2017). Sonic Corp. operates a fast food restaurant company in Oklahoma City, Oklahoma.[BN] The Plaintiffs are represented by: Sean N. Payne, Esq. Law Office of Sean Payne Ste. 253-A213 9550 South Eastern Avenue Las Vegas, NV 89123-7624 - and - David H. Krieger, Esq. Haines & Krieger 8985 South Eastern Avenue, Ste. 350 Henderson, NV 89123 Tel: (702) 880-5554 Fax: (702) 383-5518 - and - Mathew I. Knepper, Esq. Knepper & Clark 10040 West Cheyenne Avenue, Ste. 107-109 Las Vegas, NV 89129 Tel: (702) 805-6060 Fax: (702) 447-8048 - and - Miles N. Clark, Esq. Knepper & Clark 10040 West Cheyenne Avenue, Ste. 107-109 Las Vegas, NV 89129 Tel: (702) 825-6060 Fax: (702) 447-8048 - and - Carin L. Marcussen, Esq. Federman & Sherwood 10205 North Pennsylvania Avenue Oklahoma City, OK 73120 Tel: (405) 235-4560 Fax: (405) 239-2112 - and - Joshua D. Wells, Esq. Federman & Sherwood 10205 North Pennsylvania Avenue Oklahoma City, OK 73120 Tel: (405) 235-1560 Fax: (405) 239-2112 - and - William B. Federman, Esq. Federman & Sherwood 10205 North Pennsylvania Avenue Oklahoma City, OK 73120 Tel: (405) 235-1560 Fax: (405) 239-2112 Email: wbf@federmanlaw.com The Defendant is represented by: Craig Cardon, Esq. Sheppard Mullin Richter & Hampton 1901 Avenue of the Stars, Ste. 1600 Los Angeles, CA 90067 Tel: (310) 228-3749 - and - Kari M. Rollins, Esq. Sheppard, Mullin, Richter & Hampton - New York 30 Rockefeller Plaza New York, NY 10112 Tel: (212) 634-3077 Fax: (917) 438-6173 Email: krollins@sheppardmullin.com - and - Amy J. Pierce, Esq. Corbyn Hampton Barghols Pierce 211 North Robinson Avenue, Ste. 1910 Oklahoma City, OK 73102 Tel: (405) 239-7055 Fax: (405) 702-4348 - and - Joe M. Hampton, Esq. Corbyn Hampton Barghols Pierce 211 North Robinson Avenue, Ste. 1910 Oklahoma City, OK 73102 Tel: (405) 239-7055 Fax: (405) 702-4348 SOUTH AFRICA: DHET Faces Class Action Over Certificates Backlog --------------------------------------------------------------- Gert Coetzee, writing for news24, reports that after seven years of trying in vain to obtain a qualification certificate from the Motheo Technical and Vocational Education and Training (TVET) College, a Mangaung woman's tenacious calls for help has led to a class action against the Department of Higher Education and Training (DHET). The Pretoria-based firm of attorneys which has taken on the cause of Keneilwe Molawa (35), who hails from Thaba Nchu, is now looking for other former DHET students in the same quandary to join the group action. It has emerged that the DHET has a backlog of almost 200 000 certificates that should have been issued. Molawa studied Civil Engineering and Building Construction NQF Level 4 at the Thaba Nchu Campus of the Motheo College from 2008 to 2010. At that time she was 25. On her graduation day in 2011 she and fellow students were presented with toilet rolls covered in paper in lieu of a real graduation diploma. To her repeated appeals for a real graduation certificate, Motheo responded that the DHET had refrained from providing the certificates. Nothing has been forthcoming since, despite the DHET's Backlog Elimination Project, which should have been completed by early 2016. The lack of a certificate hampers Molawa --and others like her -- in her effort to get a job in line with her qualification. She is working 70 km away from home for less than R4 000 per month. If she had initially received a certificate, she would have gone on to university. Molawa had in the past years approached Motheo, the DHET, the Public Protector, the President's Office, the Department of Human Settlements (where she had hoped to get employment), the Chief Justice, Section 27, Parliament and the Mangaung mayor for help. The Pretoria-based firm Maluleke, Seriti, Makume and Matlala Inc. has now agreed to help take the DHET to court. Mmuso Matlala, spokesperson of the law firm, says thus far 12 affected students have replied. "We need more than the current number to proceed with the matter. It will be challenging if we have less than a hundred students, hence we are appealing to them to contact us so we can assist them," says Matlala. Molawa's correspondence includes the initial Motheo TVET College's recruitment advertisement, in conjunction with the DHET, looking for students who want to follow "vocational training as a career path". The advert proclaimed: "It's cool to be a 21st Century Artisan." Despite her successful study, Molawa (and others) are years later still stuck without certificates. "It is very frustrating to wait so long without any assistance. I have been taken from pillar to post with nobody telling the truth about what is actually happening. Given my treatment, I strongly maintain that TVET Colleges are worthy institutions to further education," says Molawa. For details on the class action, contact Mmuso Matlala at Maluleke, Seriti, Makume and Matlala Inc. on 087-232-1799, send a fax to 086-234-7306 or an email to mmuso@-msmminc.co.za, or see www.msmminc.co.za. [GN] TENNESSEE: Sued for Suspending Licenses for Unpaid Court Debt ------------------------------------------------------------- Beth Schwartzapfel, writing for The Marshall Project, reports that in April 2015, Ashley Sprague was making $2.13 an hour plus tips as a waitress at Waffle House when she was pulled over for speeding in a small city near her home outside Nashville. The speeding ticket, plus another citation for failure to have proof of insurance, totaled $477.50, a sum that might as well have been a million dollars. Over the course of the next 13 months, she was cited twice more for administrative infractions, including -- she was surprised to discover -- driving on a suspended license. Tennessee is one of 43 states, plus the District of Columbia, that suspends driver's licenses for people with unpaid court debt, according a recent report by the Legal Aid Justice Center, a Virginia-based organization that filed a lawsuit there challenging the practice. Although Tennessee says it gives drivers 30 days notice before suspending a license, Sprague and her lawyers say she was not told about her suspension and the state does not notify people in every case. Only four states require a hearing beforehand to determine whether the failure to pay is willful or simply a reflection of poverty, the report found. Almost a million people in Virginia and 150,000 in Tennessee currently have their licenses suspended for failure to pay, according to documents filed in lawsuits there. The lawsuits in Virginia and Tennessee are part of a nascent trend around the country: lawmakers are beginning to reconsider the practice, and lawsuits in at least five states are challenging it. They argue that suspending driver's licenses for unpaid court debt traps poor people in an unfair and counterproductive cycle: if they can't drive, they can't work; if they can't work, they can't pay; if they can't pay, they can't drive. Ms. Sprague and others made this argument in a class action suit filed this fall, and in a preliminary ruling in Nashville, U.S. District Judge Aleta Trauger agreed. She ordered the state to reinstate the licenses of Sprague and a co-plaintiff, Fred Robinson, writing that "no person can be threatened or coerced into paying money that she does not have and cannot get. "In court filings, the state of Tennessee argued that a license is a privilege and not a right, and that the state "has a compelling public interest in promoting public safety by enforcing its traffic laws and keeping serial violators off the road. "In addition to the ones in Virginia and Tennessee, similar lawsuits are pending in California, Michigan, and Montana. At least three states plus the District of Columbia are reconsidering the practice. Lawmakers in California this summer passed a bill ending driver's license suspensions for unpaid court debt. Instead, courts can arrange a payment plan, a reduced payment, or community service for those who cannot afford to pay but can no longer suspend driver's licenses for failure to pay. A package of bills has been introduced in the Michigan legislature that would help those with unpaid traffic debt to get their licenses back. This year the Mississippi Attorney General's office reached an agreement with local advocacy groups to end the practice, according to Sam Brooke, a lawyer at the Southern Poverty Law Center who participated in the meetings. The Attorney General's office declined to comment, referring questions to the Department of Public Safety. A spokesman there did not return phone calls or email messages. The mayor's office in Washington started a pilot program to allow district residents returning home from prison with unpaid traffic debt to have their licenses reinstated, noting that this is a vulnerable time when the mobility to look for work and attend appointments is crucial. "The No. 1 reason for recently released men and women being re- incarcerated . . . is for driving without a valid license, which also can lead to additional charges for failing to stop and other related crimes," Susana Castillo, a spokeswoman for Mayor Muriel Bowser, said in an email. The Washington program provides for those returning home from prison to defer payment for up to a year while they look for work, or to pay a significantly reduced amount up front, according to the mayor's office. The lawsuits tell the stories of people jailed for driving after having had their licenses suspended for failure to pay court debt -- a situation that critics liken to debtors' prison. Robert Taylor is a plaintiff in the Virginia case who was earning $9.62 per hour working for T-Mobile and was pulled over for running a red light. This set off a cycle of debt, license suspensions, and new convictions for driving with a suspended license, that landed him in jail for 20 days last year. He still owes more than $4,000 in court debt. "When you are faced with the uncertainty of potentially being pulled over and being incarcerated versus the certainty of losing your job and not being able to provide for your family, most people would choose to drive, and that's what most people choose," says Angela Ciolfi, a lawyer representing Taylor and the other plaintiffs in the Virginia suit. "We don't live in a society where most people can rely on public transportation and work and shop and meet their basic needs without driving. "Most of the movement on this issue began in the last two years, sparked by a Department of Justice investigation into the predatory practices of the Ferguson, Mo., municipal court. The report, issued in 2015, found that the local police and court system were run with an eye toward maximizing revenue, often on the backs of those who could least afford it. "Ferguson made it part of the national debate -- the way states coerce people into paying and deprive them of their livelihood," says Ms. Ciolfi. As for Ashley Sprague, facing $946 in traffic debt and $388 in reinstatement fees, she had no hope of getting her license back until the judge's October ruling. She had lost her job when a colleague who had been giving her a ride could no longer do so. Now she is back waiting tables at Waffle House and has plans to start nursing school in Nashville this spring -- a 30-mile trip that would have been impossible without a car. Having her license back means being able to get a job to provide for her children who have been living with relatives, Ms. Sprague says, because she could not afford to care for them. "To be able to save up money so I can have them back." [GN] TEXAS: Burns Charest Lawyers to Lead Hurricane Harvey Claims ------------------------------------------------------------ The U.S. Court of Federal Claims has appointed two attorneys from the firm of Burns Charest LLP to lead proposed class-action claims arising from flooding in Houston that resulted from Hurricane Harvey. Seasoned trial lawyers Daniel Charest -- dcharest@burnscharest.com -- and Larry Vincent -- lvincent@burnscharest.com -- of Burns Charest were appointed co-lead counsel, along with Charles Irvine of Irvine & Conner PLLC, to manage discovery and dispositive motions. Mr. Vincent was also appointed co-lead counsel for jurisdictional discovery and motions to dismiss. The plaintiffs in the case are Houston homeowners whose properties were ravaged by floodwater releases from the Addicks and Barker reservoirs, which were designed for flood control. During the massive rains that resulted from Hurricane Harvey, the Army Corps of Engineers performed controlled releases of floodwater from the reservoirs out of concern the dams would break. But the retention of flood water and subsequent releases inundated many neighborhoods, leading to hundreds of millions of dollars in damage both upstream and downstream of the reservoirs. The homeowners claim that by intentionally flooding the area, the government took their land without providing compensation in violation of the Fifth Amendment to the U.S. Constitution. "Our clients suffered enormous damages as a result of the government's design of the reservoirs and actions during Hurricane Harvey," said Mr. Charest. "We are committed to helping the people of Houston receive just compensation." Burns Charest represents homeowners whose properties are in the flood zone upstream of the reservoirs. There are currently hundreds of upstream lawsuits pending before the U.S. Court of Federal Claims, but the attorneys estimate that number could eventually grow to more than 15,000. The court has laid out an aggressive schedule, with dispositive motions due by June 15, 2018. "We are very pleased that the court recognizes the urgency in resolving these claims and the need to help residents who are desperate to move forward with plans to recover, rebuild or relocate," said Mr. Charest. Burns Charest has brought claims on behalf of American consumers and businesses in cases throughout the United States, and is currently leading the national class action litigation against EpiPen manufacturer Mylan, and against 3M Co., based on claims of defective dental crowns. The Houston case is In re Addicks and Barker (Texas) Flood-Control Reservoirs, Master Docket No. 17-3000L, U.S. Court of Federal Claims. Burns Charest -- http://www.burnscharest.com-- is a Dallas and New Orleans-based trial law firm with a national practice representing consumers and businesses. The firm represents clients in large, complex class actions; antitrust claims; oil and gas royalty disputes; environmental pollution cases; and asbestos exposure claims. [GN] TEZOS: Hagens Berman Investigates Initial Coin Offering ------------------------------------------------------- Hagens Berman Sobol Shapiro LLP is alerting crowdfund investors to the Tezos class action and the firm's investigation into recovering the bitcoins (BTC), Ethereum (ETH) or other consideration paid in the Tezos Initial Coin Offering ("ICO"). The SEC recently determined that those who engage in distributed ledger or blockchain-enabled means for raising capital tokens must take appropriate steps to ensure compliance with the U.S. federal securities laws. The "Tezzies" or "XTZ" token offering strongly resembles an offering of securities subject to the securities laws. The Tezos ICO is now subject to two securities class action lawsuits pending in the California Superior Court for the County of San Francisco and in the U.S. District Court for the Middle District of Florida with claims for securities law violations. If you purchased or otherwise acquired the right to purchase TEZOS currency in the July 2017 offering or crowdsale contact Hagens Berman Sobol Shapiro LLP. For more information visit: https://www.hbsslaw.com/cases/XTZ or contact Reed Kathrein, who is leading the firm's investigation, by calling 510-725-3000 or emailing XTZ@hbsslaw.com. Capitalizing on the recent enthusiasm for cryptocurrencies and blockchain technologies, the Tezos founders collected over $232 million worth of bitcoin and Ethereum from investors. Meanwhile, both bitcoin and Ethereum have seen significant gains since July. Even a timely delivery of the tokens investors paid for would have saved investors a significant amount of funds. Instead, the Tezos project has stalled, and it's now unclear that the investors will receive their Tezzies or XTZ any time soon, as Tezos founders and Dynamic Ledger Solutions, Inc. (DLS) are now engaged in a public fight for control over the Tezos Foundation, a Swiss foundation. Moreover, when the SEC announced that DAO tokens are securities within the meaning of the federal securities laws, and that DAO's or other distributed ledger or blockchain-enabled means for capital raising must comply with the U.S. federal securities laws, and that such tokens must be registered with the SEC or qualify for an exemption in July 2017, Defendants were put on notice that they had to comply with the securities laws, including, for instance, registering the Tezos tokens with the SEC as required. Nonetheless, during July 2017, Defendants conducted the Tezos ICO and sold over 607 million unregistered Tezzies to the public in exchange for digital currency worth approximately $232 million at the time. "Tezos investors have sustained significant damages by investing in the ICO. Not only did the Defendants disregard the SEC's registration requirements but the delay in the launch of Tezos token has forced investors to helplessly watch as their funds are tied up by people skirting the law," said Hagens Berman partner Reed Kathrein. Whistleblowers: Persons with non-public information regarding the Tezos ICO should consider their options to help in the investigation or take advantage of the SEC whistleblower program. Under the new program, whistleblowers who provide original information may receive rewards totaling up to 30 percent of any successful recovery made by the SEC. For more information, call Reed Kathrein at 510-725-3000 or email XTZ@hbsslaw.com. About Hagens Berman Hagens Berman -- http://www.hbsslaw.com-- is a national investor- rights law firm headquartered in Seattle, Washington with 70+ attorneys in 11 offices across the country. The firm represents investors, whistleblowers, workers and consumers in complex litigation. [GN] TRIANGLE CAPITAL: Gainey McKenna Files Securities Class Action -------------------------------------------------------------- Gainey McKenna & Egleston disclosed that a class action lawsuit has been filed against Triangle Capital Corporation ("Triangle Capital" or the "Company") (NYSE:TCAP) in the United States District Court for the Southern District of New York on behalf of a class consisting of investors who purchased or otherwise acquired Triangle Capital securities on the open market from May 7, 2014 through November 1, 2017, inclusive (the "Class Period"), seeking to recover compensable damages caused by Defendants' violations of the Securities Exchange Act of 1934. The Complaint alleges Defendants made materially false and/or misleading statements and/or failed to disclose that: (1) as early as 2013, Triangle Capital's investment professionals had internally recommended moving away from mezzanine loan deals due to market changes that no longer made these investments attractive risk-reward opportunities; (2) Triangle Capital's former CEO ignored the advice of Triangle Capital's investment professionals to chase higher short-term yields by causing Triangle Capital to invest in mezzanine debt; (3) as a result, Triangle Capital's entire vintage of 2014 and 2015 investments were at substantial risk of non-accrual due to the poor quality of the investments and deficient underwriting practices in place at the time of the investments; (4) consequently, Triangle Capital's business, prospects, and ability to maintain its dividend level were materially impaired. When the true details entered the market, the lawsuit claims that investors suffered damages. Investors who purchased or otherwise acquired shares during the Class Period should contact the Firm prior to the January 22, 2018 lead plaintiff motion deadline. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. If you wish to discuss your rights or interests regarding this class action, please contact Thomas J. McKenna, Esq. -- tjmckenna@gme-law.com -- or Gregory M. Egleston, Esq. -- gegleston@gme-law.com -- of Gainey McKenna & Egleston at (212) 983-1300. [GN] TRIANGLE CAPITAL: Robbins Geller Files Class Action in New York --------------------------------------------------------------- Robbins Geller Rudman & Dowd LLP ("Robbins Geller") on Nov. 21 disclosed that a class action has been commenced on behalf of purchasers of Triangle Capital Corporation ("Triangle") (NASDAQ:TCAP) common stock during the period between May 7, 2014 and November 1, 2017 (the "Class Period"). This action was filed in the Southern District of New York and is captioned Dagher v. Triangle Capital Corporation, et al., No. 17-cv-9102. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from November 21, 2017. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel, Samuel H. Rudman or Brian E. Cochran of Robbins Geller at 800/449-4900 or 619/231-1058, or via e-mail at djr@rgrdlaw.com. If you are a member of this class, you can view a copy of the complaint as filed at http://www.rgrdlaw.com/cases/triangle/. Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. The complaint charges Triangle and certain of its current and former officers and directors with violations of the Securities Exchange Act of 1934. Triangle is a business development company that provides customized financing to lower middle market companies located primarily in the United States. The complaint alleges that during the Class Period, defendants made false and misleading statements and failed to disclose adverse information regarding Triangle's business and prospects. Specifically, the complaint alleges that defendants failed to disclose that, as early as 2013, Triangle's investment professionals had internally recommended moving away from mezzanine loan deals due to changes in the market that no longer made these investments attractive risk-reward opportunities. As a result, the Company's entire vintage of 2014 and 2015 investments were at substantial risk of non-accrual because of the poor quality of the investments and deficient underwriting practices in place at the time of the investments. As a consequence, Triangle's business, prospects and ability to maintain its dividend level were materially impaired. As a result of defendants' false statements and omissions during the Class Period, the price of Triangle stock was artificially inflated, reaching a high of more than $28 per share. On August 2, 2017, Triangle announced its financial results for the quarter ended June 30, 2017, revealing that the amount of full non-accrual assets in the Company's portfolio had increased to 5.4% and 2.5% as a percentage of the Company's total portfolio at cost and at fair value, respectively. Moreover, the Company disclosed that it had moved two investments to payment-in-kind non-accrual status during the quarter. On this news, the price of Triangle stock declined nearly 15%, or $2.56 per share, to close at $14.63 per share by August 4, 2017. Then, on November 1, 2017, Triangle announced its financial results for the quarter ended September 30, 2017, revealing that the fair value of the Company's investment portfolio had declined nearly 7% from the prior quarter and that it had suffered $8.9 million in net realized losses and $65.8 million in net unrealized depreciation to its portfolio during the quarter. The Company also disclosed that it had moved seven investments to full non-accrual status during the quarter and that the amount of investments on non-accrual had ballooned to 13.4% and 4.7% of the Company's total portfolio at cost and at fair value, respectively. On this news, the price of Triangle stock declined nearly 21%, or $2.57 per share, to close at $9.68 per share by November 2, 2017. Plaintiff seeks to recover damages on behalf of all purchasers of Triangle common stock during the Class Period (the "Class"). The plaintiff is represented by Robbins Geller, which has extensive experience in prosecuting investor class actions including actions involving financial fraud. Robbins Geller -- http://www.rgrdlaw.com-- is a law firm advising and representing U.S. and international investors in securities litigation and portfolio monitoring. With 200 lawyers in 10 offices, Robbins Geller has obtained many of the largest securities class action recoveries in history. [GN] TURZA: Baker & Hostetler Discusses 7th Cir. Ruling -------------------------------------------------- Kristen N. Hawes, Esq. -- khawes@bakerlaw.com -- of Baker & Hostetler LLP, in an article for Lexology, reports that on November 14, 2017, the Seventh Circuit issued its third opinion ending a class action that was almost a decade old. Holtzman v. Turza, No. 17-2330, 2017 WL 5450484 (7th Cir. Nov. 14, 2017). The class action alleged that the defendant violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C. Sec. 227, by sending an "unsolicited facsimile advertisement" to the class. The district court certified the class of fax recipients in 2009, and later granted summary judgment in favor of the class, finding that the newsletter qualified as an unsolicited advertisement under the TCPA and ordering the defendant to pay $500 in statutory damages for each of the 8,430 faxes, totaling $4,215,000. The court stated it planned to distribute the sum to the class members and donate any remainder to a charity. In 2013, the Seventh Circuit issued its first published decision upholding summary judgment, but vacating and remanding the district court's order regarding the distribution of unclaimed money to charity. Holtzman v. Turza, 728 F.3d 682 (7th Cir. 2013). On remand, the district court ordered that class counsel receive one-third of the judgment (about $1.4 million) as compensation for legal services, while the remaining two-thirds (or $333 per fax) would be distributed to each class member. If there were unclaimed settlement funds, there would be a second distribution to the class members, with the total maximum paid out per fax to be $500. Any remaining funds would be returned to the defendant if counsel received $1.4 million and all members who could be located received $500 per fax. The defendant appealed. In its second and most notable opinion, the Seventh Circuit reversed, holding that the allocation was inconsistent in two ways with the American Rule on the allocation of fees -- that litigants must cover their own legal costs. Holtzman v. Turza, 828 F.3d 606 (7th Cir. 2016), cert. denied, 137 S. Ct. 1330, 197 L. Ed. 2d 517 (2017). First, the distribution was inconsistent because the order essentially awarded counsel attorneys' fees even if a recipient could not be located or did not claim the funds. The Seventh Circuit noted that "awarding counsel $167 per fax when the class member gets nothing would be equivalent to treating the [TCPA] as a fee-shifting statute." Next, the second round of distributions was held inconsistent with the American Rule because it would allow the class members to receive up to $500 per fax whereas the defendant would be required to pay separately for the class members' attorneys' fees. This would exceed the $500 statutory damages cap (absent a "willfull" or "knowing" violation) under the TCPA and would improperly shift the responsibility for those fees from the plaintiffs to the defendant. The Seventh Circuit remanded the case with instructions that the $4.215 million be allocated as follows: (1) class members are to receive a check for $333 per fax; (2) for every $333 that is cashed, class counsel will receive $167; and (3) any remaining funds will be returned to the defendant. After another appeal, the Seventh Circuit affirmed the trial court's order regarding class notice on November 14, 2017, thus ending the decade-long litigation. The Seventh Circuit's opinion is notable for class actions because it ties class counsel's recovery of attorneys' fees, in the context of a judgment, to the amount claimed by the class. Moreover, the opinion serves as a reminder that defendants should carefully scrutinize judgments that may have the effect of improperly shifting attorneys' fees. [GN] UBER TECHNOLOGIES: Seeks Dismissal of Pricing Model Class Action ---------------------------------------------------------------- Linda Chiem, writing for Law360, reports that Uber slammed a California driver's assertion it stiffs drivers on wages with a pricing model that deceptively charges passengers a higher fare based on a longer route, but requires drivers to take the shortest route, insisting the suit lobs "convoluted" breach of contract and other claims. Uber Technologies Inc. and its subsidiaries Rasier LLC and Rasier- CA LLC fired back in response to plaintiff Sophano Van's bid to keep alive his proposed class action challenging an "upfront" pricing model that Uber implemented sometime between June 2016 and September 2016, saying Van's breach of contract, conversion and fraud claims are all deficient. Mr. Van's lawsuit, first filed in April and amended in August, alleges the pricing model ended up stiffing drivers on full fares by giving prospective riders using the Uber app a fare estimate based on a longer-than-intended route, while the driver is directed to use the shortest direct route. Uber said in a reply backing up its motion to dismiss that Van still hasn't sufficiently pled the terms of the operative contract that was supposedly breached, and his claims against Rasier LLC and Uber Technologies fail because neither is a party to the December 2015 technology services agreement that Mr. Van agreed to when he started driving for Uber. "The convoluted and incomprehensible explanation of the TSA's terms that plaintiff provides in an effort to support his breach of contract claim is inconsistent with its plain and unambiguous terms," Uber said in a reply brief supporting its motion to dismiss. "Those terms clearly provide that the fare paid to drivers is based on a 'base amount' plus additional amounts based on the actual distance and/or time of the trip. As a result, plaintiff has not alleged sufficiently that Uber breached the TSA." Uber also tore into Mr. Van's other claims, saying he hasn't provided any specifics to back up his conversion, unfair competition or California Labor Code claims. "Plaintiff's fraud claim also fails because he has not identified the specific allegations giving rise to the 'who, what, when, and where' of Uber's supposed fraud or that confer a duty on Uber to disclose any information it allegedly concealed from him or other drivers," the company said. Mr. Van said drivers had no way of knowing the alleged upfront price was based on a route that was substantively different than the route provided to the Uber drivers, calling Uber's deception "a purposeful, well-planned scheme to deceive drivers and users." Mr. Van countered Uber's dismissal bid, insisting he laid out a sufficient cause of action for breach of contract. Mr. Van argued in a Nov. 9 opposition brief that a California federal court overseeing a similar class action challenging Uber's upfront pricing model, called Dulberg v. Uber Technologies Inc., has already examined this issue and concluded that a sufficient claim for breach of contract was asserted under substantively similar allegations. In that Dulberg case, U.S. District Judge William Alsup ruled July 31 that the allegations of Uber miscalculating driver pay were sufficient enough to move ahead at that stage of the litigation. "Defendants ask the court to ignore this ruling but the basis for this request is entirely unpersuasive," Mr. Van had said. "However, even ignoring the ruling in the Dulberg matter, to defeat Uber's claims Mr. Van must only demonstrate one thing: that he has provided a plausible interpretation of the parties' agreement." Mr. Van's interpretation -- i.e. that the fare that passengers pay with upfront pricing is the same fare defined in the agreement -- easily clears this hurdle, he said. Mr. Van's lawsuit claims Uber deliberately manipulated the navigation data used in determining the fare amount paid by its users and the amount reported and paid to its drivers. The software that calculates the upfront price that is displayed and charged to app users calculates the expected distance and time using a route that is often longer in both distance and time to the one shown in the driver's app, according to the suit. The complaint alleges that drivers like Van were deprived of the total fares collected from Uber app users and riders, minus the 20- to 25-percent service and booking fees Uber usually charges drivers. But Mr. Van goes further to allege the fare discrepancy is equivalent to workers being denied proper wages under California labor law. Although many Uber drivers are classified as independent contractors, they are actually employees based on the operating parameters Uber places on drivers using its app, the complaint alleges. "They are required to follow a litany of detailed requirements imposed on them by Uber and they are graded, and are subject to termination, based on their failure to adhere to these requirements (such as rules regarding their conduct with customers, the cleanliness of their vehicles, their timeliness in picking up customers and taking them to their destination, what they are allowed to say to customers, etc.)," the complaint says. Mr. Van's amended complaint asserted claims for breach of contract, conversion, fraud by concealment, unfair competition, independent contractor misclassification, and violation of California's Private Attorneys General Act. Mr. Van launched the suit on behalf of a proposed class of all Uber drivers, including all UberPool, UberX, Uber Select, Uber Black and Uber SUV drivers, who have worked for Uber in California. Mr. Van's attorneys were not immediately available for comment on Nov. 20. An Uber spokesman said the company had no additional comment beyond what is in the briefs. Mr. Van is represented by Bobby Saadian and Daniel B. Miller of Wilshire Law Firm. Uber and Rasier are represented by Molly M. Lane -- molly.lane@morganlewis.com -- Jason S. Mills -- jason.mills@morganlewis.com -- Joseph V. Marra III -- joseph.marra@morganlewis.com -- and Nicholas E. Frontera -- nicholas.frontera@morganlewis.com -- of Morgan Lewis & Bockius LLP. The case is Van v. Rasier LLC et al., case number 2:17-cv-02550, in the U.S. District Court for the Central District of California. The case is assigned to Judge Dolly M. Gee. The case was filed April 3, 2017. [GN] UBER TECHNOLOGIES: Paid Hackers to Delete Stone Customer Data ------------------------------------------------------------- Eric Newcomer and Erik Larson, writing for Bloomberg News, report that hackers stole the personal data of 57 million customers and drivers from Uber Technologies Inc., a massive breach that the company concealed for more than a year. Recently, the ride- hailing firm ousted its chief security officer and one of his deputies for their roles in keeping the hack under wraps, which included a $100,000 payment to the attackers. Compromised data from the October 2016 attack included names, email addresses and phone numbers of 50 million Uber riders around the world, the company told Bloomberg on Nov. 21. The personal information of about 7 million drivers was accessed as well, including some 600,000 U.S. driver's license numbers. No Social Security numbers, credit card information, trip location details or other data were taken, Uber said. "None of this should have happened, and I will not make excuses for it." At the time of the incident, Uber was negotiating with U.S. regulators investigating separate claims of privacy violations. Uber now says it had a legal obligation to report the hack to regulators and to drivers whose license numbers were taken. Instead, the company paid hackers to delete the data and keep the breach quiet. Uber said it believes the information was never used but declined to disclose the identities of the attackers. "None of this should have happened, and I will not make excuses for it," Dara Khosrowshahi, who took over as chief executive officer in September, said in an emailed statement. "We are changing the way we do business." After Uber's disclosure on Nov. 21, New York Attorney General Eric Schneiderman launched an investigation into the hack, his spokeswoman Amy Spitalnick said. The company was also sued for negligence over the breach by a customer seeking class-action status. Hackers have successfully infiltrated numerous companies in recent years. The Uber breach, while large, is dwarfed by those at Yahoo, MySpace, Target Corp., Anthem Inc. and Equifax Inc. What's more alarming are the extreme measures Uber took to hide the attack. The breach is the latest scandal Mr. Khosrowshahi inherits from his predecessor, Travis Kalanick. Mr. Kalanick, Uber's co-founder and former CEO, learned of the hack in November 2016, a month after it took place, the company said. Uber had just settled a lawsuit with the New York attorney general over data security disclosures and was in the process of negotiating with the Federal Trade Commission over the handling of consumer data. Mr. Kalanick declined to comment on the hack. Joe Sullivan, the outgoing security chief, spearheaded the response to the hack last year, a spokesman told Bloomberg. Sullivan, a onetime federal prosecutor who joined Uber in 2015 from Facebook Inc., has been at the center of much of the decision-making that has come back to bite Uber this year. Bloomberg reported that the board commissioned an investigation into the activities of Sullivan's security team. This project, conducted by an outside law firm, discovered the hack and the failure to disclose, Uber said. Here's how the hack went down: Two attackers accessed a private GitHub coding site used by Uber software engineers and then used login credentials they obtained there to access data stored on an Amazon Web Services account that handled computing tasks for the company. From there, the hackers discovered an archive of rider and driver information. Later, they emailed Uber asking for money, according to the company. A patchwork of state and federal laws require companies to alert people and government agencies when sensitive data breaches occur. Uber said it was obligated to report the hack of driver's license information and failed to do so. "At the time of the incident, we took immediate steps to secure the data and shut down further unauthorized access by the individuals," Mr. Khosrowshahi said. "We also implemented security measures to restrict access to and strengthen controls on our cloud-based storage accounts." Uber has earned a reputation for flouting regulations in areas where it has operated since its founding in 2009. The U.S. has opened at least five criminal probes into possible bribes, illicit software, questionable pricing schemes and theft of a competitor's intellectual property, people familiar with the matters have said. The San Francisco-based company also faces dozens of civil suits. U.K. regulators including the National Crime Agency are also looking into the scale of the breach. London and other governments have previously taken steps toward banning the service, citing what they say is reckless behavior by Uber. In January 2016, the New York attorney general fined Uber $20,000 for failing to promptly disclose an earlier data breach in 2014. After last year's cyberattack, the company was negotiating with the FTC on a privacy settlement even as it haggled with the hackers on containing the breach, Uber said. The company finally agreed to the FTC settlement three months ago, without admitting wrongdoing and before telling the agency about last year's attack. The new CEO said his goal is to change Uber's ways. Uber said it informed New York's attorney general and the FTC about the October 2016 hack for the first time on Nov. 21. Mr. Khosrowshahi asked for the resignation of Mr. Sullivan and fired Craig Clark, a senior lawyer who reported to Mr. Sullivan. The men didn't immediately respond to requests for comment. Mr. Khosrowshahi said in his emailed statement: "While I can't erase the past, I can commit on behalf of every Uber employee that we will learn from our mistakes." The company said its investigation found that Salle Yoo, the outgoing chief legal officer who has been scrutinized for her responses to other matters, hadn't been told about the incident. Her replacement, Tony West, will start at Uber on Nov. 22 and has been briefed on the cyberattack. Mr. Kalanick was ousted as CEO in June under pressure from investors, who said he put the company at legal risk. He remains on the board and recently filled two seats he controlled. Uber said it has hired Matt Olsen, a former general counsel at the National Security Agency and director of the National Counterterrorism Center, as an adviser. He will help the company restructure its security teams. Uber hired Mandiant, a cybersecurity firm owned by FireEye Inc., to investigate the hack. The company plans to release a statement to customers saying it has seen "no evidence of fraud or misuse tied to the incident." Uber said it will provide drivers whose licenses were compromised with free credit protection monitoring and identity theft protection. [GN] UBER TECHNOLOGIES: Puts Profits Over Female Passenger Safety ------------------------------------------------------------ Linda Bentley, writing for Sonoran News, reports that on Nov. 14, two women, identified as Jane Doe 1, a resident of Miami, Fla. and Jane Doe 2, a resident of Los Angeles, Calif., filed a class action complaint against Uber Technologies, Inc. claiming Uber's message to women is basically "Our profits over your safety." According to the complaint, "Since Uber launched in 2010, thousands of female passengers have endured unlawful conduct by their Uber drivers including rape, sexual assault, physical violence and gender-motivated harassment. Recently, the number of reported sexual assaults and rapes of female passengers by male Uber drivers has sky-rocketed." The lawsuit alleges Uber, over the past seven years, has utilized low-cost, "woefully inadequate" background checks for its drivers while failing to monitor drivers for any violent or inappropriate conduct after they're hired and states, "Nothing meaningful has been done to make rides safer for passengers -- especially women." In order to sidestep state and local regulatory scrutiny that taxi and limousine drivers are subjected to, Uber labels itself a "technology platform" company rather than a "transportation" company, allowing Uber to avoid spending more money on driver screening and to avoid regulatory measures directed at safety. The complaint suggests numerous safety measures Uber could implement to drastically reduce harm to female passengers, including: -- Bar registered sex offenders or individuals with assault or rape convictions (no time limit) from becoming Uber drivers; -- Require all Uber drivers nationwide to undergo in-person screening interviews and vehicle examinations; -- Install tamper-proof video cameras in all Uber vehicles which immediately set off alarms if they are disabled or malfunction; -- Perform national criminal background checks of all drivers every six months; -- Voluntarily submit driver information to states that wish to conduct their own screening through state maintained criminal databases, such as in Maryland and Massachusetts; -- Require drivers to inform Uber within 24 hours if they have been indicted or charged on any felony involving physical force, violence or weapons, including kidnapping, or misdemeanors involving physical or sexual conduct; -- Require drivers to inform Uber within 24 hours of physical restraining orders issued in domestic violence matters; and -- A number of other recommendations including the use of facial recognition software and/or fingerprinting, require GPS tracking systems in their cars that trigger alarms if turned off, disabling child-lock features, in-app panic buttons that send messages to Uber, local police and a designated safety contact, and more. Had these measures been in place, the complaint claims thousands of women would have been spared the pain and humiliation suffered at the hands of their Uber drivers. However, it claims Uber's goal to dominate and control the "ridehailing" market at the expense of consumer safety "is a calculated decision made by senior executives that continues through the present." The complaint not only details the sexual assaults Uber drivers committed against Jane Doe 1 and Jane Doe 2, it raises the Oct. 31, 2017 terrorist attack in lower Manhattan, where Sayfullo Saipov, 29, intentionally drove a rental truck into a crowded pedestrian and bicycle path, killing eight people and seriously injuring 11 others. Shortly after Saipov was arrested, Uber released a public statement disclosing he was a driver for Uber that same day. Uber said Saipov passed its background check to become a driver and had been actively driving on the Uber app for more than six months. The complaint asserts Uber's background checks of potential drivers is inherently flawed and the background checking methods used by Uber cannot assure passengers that the driver does not have a history of violence or other background information that would cause "a reasonable company to make further inquiries into a potential driver's history." The application process to become an Uber driver is entirely online and involves filling out a few short forms and uploading photos of a driver's license, vehicle registration and proof of insurance. However, drivers are not required to show that they own the vehicle that will be used to transport passengers. Additionally, at no point does Uber verify that the person applying to drive is uploading his or her own personal documents, including his or her own profile photo. As a result, the lawsuit contends, numerous drivers have registered to drive on the Uber app by using falsified identities, false social security numbers, false driver's licenses and false photos. Some of the systems Uber utilizes to perform background checks simply run potential drivers' social security numbers through record databases, similar to those held by credit agencies, which only go back seven years and do not capture all arrests and/or convictions. For example, if a potential driver was convicted of a violent crime ten years prior to applying, Uber would have no way of knowing such facts and turns a blind eye when it comes to any acts that may have occurred prior to the arbitrary seven-year cut-off. Uber also fails to conduct a seven-year review of any information for drivers who have resided in the United States for less than that time and ignores any period beyond the records it can obtain in the United States. The complaint points out Uber's faulty and defective screening of drivers' histories was recently exposed by the states of Massachusetts and Maryland. In January 2017, Uber and Lyft, a similar ridehailing app, were required to subject drivers to state-run background checks. This additional screening was intended for drivers that had already passed Uber's and Lyft's background checks. Out of the approximately 70,789 Uber and Lyft drivers checked, 8,206 drivers were rejected by the state's screening, of which 1,599 drivers were found to have a history of violent crime. Incredibly, the Uber and Lyft background checks also failed to identify 51 registered sex offenders. In Dec. 2016, the Maryland Public Service Commission (PSC) approved alternative background checks for Uber and Lyft drivers after both companies claimed that their background screening processes were more comprehensive than fingerprint-base checks. Maryland required more stringent background checks, including written confirmation that Uber and Lyft have verified the identity of the driver and extended the background checks to the applicant's entire adult life. In April 2017, figures released by the state since implementing the expanded background checks, revealed, of the 70,999 Uber applicants, 4,310 were rejected for reasons that included criminal convictions not caught by Uber's "more comprehensive" background checks. In October 2017, Maryland PSC reported, over the previous six months, nearly 15 percent of new ridehailing drivers were rejected and banned from driving in Maryland, despite passing Uber's and Lyft's background checks. Of those rejected, Maryland PCS reported 95 percent of the individuals rejected were drivers for Uber, including at least 460 drivers banned because of "disqualifying criminal histories." Other issues raised in the complaint had to do with insurance, whereas Uber drivers were surprised to learn their personal insurers disclaimed coverage once it determined the driver was providing transportation for Uber. Most insurers would require drivers to purchase commercial coverage, which could be cost prohibitive for an Uber driver. "For rapes, sexual assaults or other gender-motivated violence that takes place when the driver turns off his app or exits the vehicle and commits the violence outside the vehicle, on the street or even several hundred feet from the vehicle, Uber's policies state that the Company is not responsible for harm during this 'gap.'" Because Uber fails to address this concern, over thirty states have issued public consumer warnings about the lack of insurance coverage involved with rides on the Uber app. The relief sought in the complaint includes entry of a permanent injunction directing Uber to immediately implement stricter and more thorough screening of potential Uber drivers as well as subject existing Uber drivers to an immediate review of conduct engaged in by all drivers during the last 12 months; implement a policy to monitor driver conduct after they have been accepted to drive on the app; implement changes to provides a means to monitor rides during transport an centralize methods to quickly notify Uber when a driver has gone off the app during a ride or substantially driven off route during an ongoing ride; and implement adequate insurance coverage for all stages of a ride and clearly inform the public about its insurance coverage polices, and an award of damages to be determined at trial. Another complaint was filed in October 2015 by two women who were sexually assaulted by their Uber drivers. The complaint points out how Uber markets itself extensively as the best option for a safe ride home after a night of drinking. In fact, Uber commissioned a report with Mothers Against Drunk Driving (MADD) in which it declared, "When empowered with more transportation options like Uber, people are making better choices that save lives." Uber went on to claim, "Uber and MADD are working toward a world where a safe ride is always within reach and where drunk-driving is a thing of the past." Uber would even use taglines at concerts such as "Drink up & Uber on." The complaint goes on to state, "But what Uber does not share with riders is that making the choice to hail a ride after drinking also puts them in peril from Uber drivers themselves. By marketing heavily toward young women who have been drinking while claiming that rider safety is its #1 priority, Uber is instead putting women at risk." In that case, Jane Doe 1 was sexually assaulted by an Uber driver named Abderrahim Dakiri in Boston, Mass. It states, "The Uber app was used to arrange a ride to take Jane Doe 1 and several friends home. After dropping off her friends, Dakiri took Jane Doe 1 on an off-route detour to her destination, during which he took the opportunity to sexually assault her." Jane Doe 2 was sexually assaulted in Charleston, S.C. by an Uber Driver named Patrick Aiello. After dropping off her friend, under the guise of driving Jane Doe 2 home, Aiello instead took her on an off-route detour, during which he took the opportunity to viciously rape her. Uber settled that case for an undisclosed amount in November 2016. On Nov. 21, Uber CEO Dara Khosrowshahi announced he recently learned in late 2016 Uber became aware of a breach of user data stored on a third-party cloud-based service it uses. The information accessed included the names and driver license numbers of around 600,000 Uber drivers in the United States and some personal information of 57 million Uber users around the world, including names, email addresses and mobile phone numbers. In a statement released on Nov. 21, 2017, Khosrowshahi said, "You may be asking why we are just talking about this now, a year later. I had the same question, so I immediately asked for a thorough investigation of what happened and how we handled it. What I learned, particularly around our failure to notify affected individuals or regulators last year, has prompted me to take several actions: -- We are individually notifying the drivers whose driver's license numbers were downloaded. -- We are providing these drivers with free credit monitoring and identity theft protection. -- We are notifying regulatory authorities. While we have not seen evidence of fraud or misuse tied to the incident, we are monitoring the affected accounts and have flagged them for additional fraud protection." He also stated, "Effective Nov. 22, two of the individuals who led the response to this incident are no longer with the company." Mr. Khosrowshahi said even though none of this should have happened, he can't erase the past and can only commit to learning from their mistakes by changing the way they do business, putting integrity at the core of every decision they make and working hard to earn the trust of their customers. [GN] UBER TECHNOLOGIES: Five States to Investigate 2016 Data Breach -------------------------------------------------------------- Tony Romm and Johana Bhuiyan, writing for Recode, report that new revelations that Uber suffered a major security breach in 2016 -- and initially withheld details from drivers, riders and regulators alike -- is touching off another round of government probes and customer lawsuits targeting the ride-hailing giant. At least five states -- Illinois, Massachusetts, Missouri, New York and Connecticut -- told Recode that they would investigate the matter, after Uber revealed on Nov. 22 that the intrusion affected 57 million customers, compromising names, addresses and driver's license numbers in some cases. Meanwhile, Uber must contend with the possible threat of a new probe at the Federal Trade Commission. The agency, which acts as the U.S. government's top privacy and security watchdog, penalized Uber for its privacy and security practices just this August. But it may not have known that Uber had suffered a major security breach in 2016, even as they investigated the company at the same time for other, unrelated security missteps. For now, the agency merely said it's "closely evaluating the serious issues raised." And some affected customers are similarly taking action. On Nov. 22 -- hours after the breach became public -- an Uber user filed a lawsuit accusing the company of negligence and deceptive business practices. The plaintiff, Alejandro Flores, is seeking to represent a class of affected riders and drivers alike. Taken together, the repercussions for Uber's silence already seem vast. Once again, the ride-hailing company faces the threat of costly litigation and other stiff penalties or fines -- all at a time when the tech giant is battling back a slew of other civil and criminal probes. "We've been in touch with several state attorney general offices and the FTC to discuss this issue, and we stand ready to cooperate with them going forward," an Uber spokesperson said. Hackers set their sights on Uber in late 2016, according to the company, while Travis Kalanick still led the company. By accessing a public repository of Uber data, two individuals were able to see -- but perhaps not steal -- personal information for 57 million Uber users around the world. At the time, Uber suppressed information about the breach -- and it paid the hackers a $100,000 ransom to delete the data they had obtained. Roughly a year later, though, new Uber CEO Dara Khosrowshahi opted to make information about the security incident public, along with an apology and a promise to improve the company's digital defenses. But Mr. Khosrowshahi's mea culpa is unlikely to satisfy regulators. For one thing, 48 states maintain some version of a law that requires companies that suffer a data breach to communicate what happened to consumers. In most cases, companies must disclose a security incident if hackers steal very sensitive customer data -- such as driver's license numbers, which happened with Uber in late 2016. To that end, the attorneys general in Illinois, Connecticut and New York have said they are probing the breach at Uber -- perhaps with an eye on whether the company skirted state laws. The top prosecutors in other major states, like Pennsylvania and Florida, did not immediately respond to emails on Nov. 22 seeking comment. California's AG declined to comment. State laws also form the basis of an emerging class action suit, which alleges that Uber's failure to disclose the 2016 breach runs afoul of notification rules in California, Illinois, Hawaii and others. For some of these states, such as Illinois, the rider information that was exposed doesn't require disclosure but the 600,000 driver's license numbers accessed do. In the nation's capital, meanwhile, Uber faces the prospect of more pain. Months earlier, the company brokered a draft agreement with the FTC to settle charges dating back to 2014 that it mishandled customers' data. In that fight, the agency contended that Uber had "deceived consumers" by allowing its employees to access riders' most personal information, including the details of their trips. But Uber's settlement with the FTC isn't technically final; the commission still must vote on it. That opens the door for the agency perhaps to rethink the order, weigh new penalties or open another probe into Uber entirely as a result of the revelations. Some U.S. lawmakers explicitly urged the FTC on Nov. 22 to do precisely that. Perhaps complicating matters, the FTC in 2014 and 2015 specifically ordered Uber to preserve all documents and records related to privacy and security for investigators to review, according to copies of civil investigative demands sent to the company at the time and later obtained by Recode. Otherwise, the orders said, Uber could face additional civil or criminal liability. It is unclear how those demands might apply in a case like this one, where Uber did not disclose a breach in the midst of an unrelated investigation. Asked about the matter, a spokeswoman for the FTC confirmed the agency is "aware of press reports describing a breach in late 2016 at Uber and Uber officials' actions after that breach." While the aide said the agency is "closely evaluating the serious issues raised," she did not elaborate on whether that amounted to an investigation. Two sources, however, told Recode that Uber had briefed the agency on the matter in recent days. Even abroad, Uber faces immense criticism -- and perhaps additional scrutiny. A top regulator in the European Union on Nov. 22 highlighted Uber's handling of the breach to make the case for greater regulation of U.S. tech giants. Much of the responsibility for fixing Uber's new troubles now falls to Tony West, the company's new chief legal officer. A former PepsiCo executive who served as the assistant attorney general of the Department of Justice under President Barack Obama, West is also tasked with overseeing Uber's fights in a wide array of other regulatory woes -- including a federal probe on foreign bribery charges. [GN] UBER TECHNOLOGIES: Customer to Arbitrate Price-Fixing Claims ------------------------------------------------------------ Jonathan Stempel, writing for Reuters, reports that a U.S. judge ruled that Uber can force an unhappy Connecticut customer's price- fixing case against the ride-service company into arbitration, after the customer said the proposed class action belonged in court because he never agreed to arbitrate. In an order dated November 22, U.S. District Judge Jed Rakoff in Manhattan also dismissed claims by the customer, Spencer Meyer, against former Uber Technologies Inc. Chief Executive Travis Kalanick, unless Meyer wished to arbitrate. Rakoff, long a critic of mandatory arbitration, said he would explain his reasoning later. Reuters obtained a copy of his order, which was not available in online court records. "We are awaiting the court's opinion and will consider all options as to how to proceed," John Briody, a lawyer for Meyer, said in an email on November 23. Uber said in an email: "We are pleased with the court's decision." Lawyers for Kalanick did not immediately respond on November 23 to requests for comment. Arbitration clauses are often buried in lengthy terms of service that customers never see or would struggle to read. Critics say the clauses, which often forbid class actions, dissuade many people from pursuing claims at all. Meyer had accused San Francisco-based Uber and Kalanick of conspiring with drivers, whose earnings are shared with Uber, to charge "surge pricing" fares during peak demand periods. He said he never agreed to arbitrate because a keypad had obscured a hyperlink to Uber's terms of service, including the arbitration clause, when he signed up with his smartphone. Uber countered that Meyer had an unobstructed view of the hyperlink, and waived the keypad issue because he could have raised it sooner. The lawsuit began in December 2015. Kalanick said claims against him must be dismissed because he was no longer Uber's chief executive. He resigned in June after a shareholder revolt. On Aug. 17, the federal appeals court in Manhattan had reinstated the arbitration provision, overturning a July 2016 ruling by Rakoff that found it unenforceable. Later that month, the appeals court said Rakoff may consider new evidence about how long Uber customers could see the hyperlink, including when entering credit card information. Internet companies and the U.S. Chamber of Commerce have argued during the litigation that a loss by Uber could inhibit e-commerce and threaten the enforceability of online contracts. The case is Meyer v. Kalanick et al, U.S. District Court, Southern District of New York, No. 15-09796. [GN] UGL: Investor Class Action Over Ichthys Disclosure Can Proceed -------------------------------------------------------------- Jenny Wiggins and Katie Walsh, writing for Australian Financial Review, report that a class action alleging contractor UGL delayed informing investors about cost blowouts on a power plant contract for INPEX's Ichthys gas project in late 2014 will proceed with investment group Clime Capital as the representative applicant. The action, which has been under consideration for more than a year, will claim tens of millions of dollars for losses suffered by investors after UGL's stock slumped in November 2014 after it revealed problems with the power contract. Investors have previously asked the Australian Securities and Investments Commission (ASIC) to investigate UGL's failure to disclose the cost blowouts, given its joint venture partner CH2M Hill had said in a filing to the US Securities and Exchange Commission in August 2014 that it was worried about rising costs and the potential for liquidated damages. "We would welcome ASIC talking to us about the action and are a little bit perplexed why they haven't," said John Abernethy, chairman of Clime Capital. The class action was initially considered by Slater & Gordon in 2016, but was delayed by the departure of lawyers who established their own boutique firm, Phi Finney McDonald. IMF Bentham will fund the claim and Phi Finney McDonald will represent Clime Capital, which acquired several million shares in UGL before it announced it had taken a $US170 million ($222 million) provision on the power contract. UGL subsequently announced hundreds of millions of dollars of further writedowns. UGL is now owned by construction group CIMIC, which walked away from the power contract in February 2017 after buying the smaller contractor in a hostile takeover in late 2016. Former UGL chairman Kate Spargo is now a non-executive director on CIMIC's board. Participants in the class action believe they have a strong case against UGL, because other companies such as Credit Corp have been forced to settle actions alleging breaches of continuous disclosure obligations. Falling stock UGL was aware its American joint venture partner, CH2M Hill, was considering taking provisions on the troubled $550 million power plant contract at least a month before the Australian contractor informed shareholders on November 6, 2014, that it was facing cost blowouts due to delays. UGL's stock fell almost 15 per cent on November 6, losing $1.01 to $5.89 after it disclosed the additional costs. The stock fell further in subsequent days. The class action will allege that during the claim period, UGL failed to keep the market informed about problems on the power plant contract. Former UGL chief executive Richard Leupen had previously told analysts at a briefing following the company's annual results on August 24, 2014, that all costs related to the Ichthys gas project had been taken "into account" and that he was not aware of any problems. LIke UGL, CH2M Hill has subsequently been acquired by a bigger company, with US engineering group Jacobs buying the smaller American firm in August. Both CIMIC and Jacobs have strong balance sheets, enabling them to easily settle class actions. Phi Finney McDonald director Odette McDonald said shareholder class actions had played "an important role" in improving corporate governance practices of listed entities. "The willingness of Clime, an institutional investor, to take such an active role in this matter is a further positive step in the right direction," Ms McDonald said. The class action has not yet been filed in court. [GN] VODACOM: Faces Class Action Over "Disappearing Airtime" ------------------------------------------------------- MyBroadband reports that Vodacom is facing a class action lawsuit for tens of millions for "unauthorised fees" the company charged subscribers. The unauthorised charges, which are often experienced as disappearing airtime by users, come from wireless application service providers (WASPs). Vodacom supplies the WASPs with the ability to bill subscribers' accounts for services, which often happens without the consent of the subscriber, stated the complainants. It is up to subscribers to check their cellphone account to see if they are the victim of rogue WASPs. The problem of unauthorised billing by WASPs has existed for many years, with thousands of Vodacom subscribers falling victim to unauthorised billing. While Vodacom has put measures in place to prevent fraudulent billing by WASPs, companies find ways to bypass these measures. Many people have called on Vodacom to make WASP billing an opt-in option, but to date these calls have fallen on deaf ears. Bidvest executive taking action When Bidvest Car Rental executive William Douglas saw his Vodacom account was billed without his consent for "content services", he decided to take action. Noseweek reported that Douglas laid charges against Vodacom with the police, and is launching a class action lawsuit against the mobile operator. He feels that the way cellphone companies operate in this regard is "offensive and downright criminal". MyBroadband contacted Douglas for comment on his action against Vodacom, but he could not immediately provide details, as he was busy with an expose for Carte Blanche. Vodacom explains Vodacom confirmed that two WASP content aggregators -- both of which charged Douglas -- were in contravention of WASPA's code of conduct. "The WASPs have since been suspended while a further investigation is conducted," said Vodacom. Vodacom said Douglas has been fully refunded for the fraudulent activity on his account. "Pending the outcomes of the second investigation, Vodacom is committed to taking appropriate action that could include terminating services of WASPs and their affiliate content aggregators," it said. Vodacom did not state why it is unable to stop unlawful billing by WASPs, or why it does not make WASP services opt-in rather than opt-out. It did state it has zero tolerance for any illegal activity on its network and continuously adds security features to enhance its double-opt-in solution. "The next upgrade will come into effect in December. Additionally, we are actively implementing anti-fraud detection software." It is also developing a capability in the My Vodacom App that gives customers a view of content services subscribed to -- with the option to delete unwanted content. Customers can unsubscribe from WASP services by sending an SMS stating "STOP ALL" to 31050, said Vodacom. [GN] WEYERHAEUSER CO: Faces Class Action Suit Over Floor Joists ---------------------------------------------------------- Ryan J. Farrick, writing for Legal Reader, reports that Ohio attorneys are eyeing "toxic homes" for a potential class action lawsuit. Last year, ABC 6 and other media outlets reported problems with Weyerhaeuser floor joists. Thousands of units across the United States were marked as in need of remediation. A press release issued in July 2016 explained a change Weyerhaeuser had made to its joists. A chemical switch in its "Flak Jacket" fire-resistant coating contained a formaldehyde- based resin, which ABC 6 suggests was likely responsible for causing noxious odors in newly-constructed houses. In Central Ohio, 150 "Westport Homes" were identified as affected by the problem joists. Two Lithopolis, OH, residents interviewed by ABC 6 spelled out the problems they believe Weyerhaeuser joists caused their family. According to Michael and Courtney Walker, they'd planned to build a home after Michael returned from an Air Force posting in the island nation of Qatar. Not long after construction was complete and the Walkers moved in, Courtney began developing what seemed like bad allergies. Constantly sick and sneezing, Mrs. Walker figured the cause may come from dust or the atmosphere. "I chalked it up to really bad allergies," she said. "I was taking two allergy pills per day." Michael suffered similar symptoms, too, figuring into ABC 6's original coverage of the "toxic homes" last year. "I can't be in [the house] more than 5 minutes without having dry eyes, burning in my nose. So it's not a fun atmosphere to be in," Courtney said. The Walkers say they would never have built the house with Weyerhaeuser components if they'd known the company had switched its "Flak Jacket" chemical base to something as toxic as formaldehyde. While Weyerhaeuser has sponsored the cost of renovation -- ripping up and replacing the toxic joists -- the couple have reached out to attorneys in hopes of sparking a class action suit. They, along with others involved, say litigation isn't about a possible financial reward. Since last year's admission and press release, Weyerhaeuser has earmarked millions of dollars to repair the foul-smelling and eye- irritating wood. They've purportedly put aside between $50 to $60 million to rehabilitate affected homes. Weyerhaeuser and BizJournal statements and reportage don't indicate the "Flak Jacket" coating causing any physical irritation to customers -- rather, representatives for the company say it simply exudes a strong "pickle-like" odor. Most of the homes built with the noxious joists remain unoccupied and will be repaired before going back on the market. [GN] WILBUR-ELLIS: Faces "Cisneros" Suit in California Super Court ------------------------------------------------------------- A class action lawsuit has been filed against Wilbur-Ellis Company, LLC, an unknown entity. The case is styled as Javier Cisneros, individually, and on behalf of all others similarly situated, Plaintiff v. Wilbur-Ellis Company, LLC, an unknown entity, Defendant, Case No. BCV-17-102836 (Cal. Super. Ct., December 11, 2017). Wilbur-Ellis Company Inc. markets and distributes agricultural products, animal feed, and specialty chemicals and ingredients in the United States and internationally.[BN] The Plaintiff is represented by: Douglas Han, Esq. Justice Law Corporation 411 North Central Avenue Suite 500 Glendale, CA 91203 Tel: 818.230.7502 Fax: 818.230.7259 Email: dhan@justicelawcorp.com WILLIS TOWERS: Bernstein Litowitz Files Securities Class Action --------------------------------------------------------------- Bernstein Litowitz Berger & Grossmann LLP ("BLB&G") disclosed that it filed a securities class action lawsuit on behalf of its client Cambridge Retirement System ("Cambridge") against Willis Towers Watson plc (NasdaqGS: WLTW), Towers Watson & Co. ("Towers"), Willis Group Holding plc ("Willis"), ValueAct Capital Management, John J. Haley, Dominic Casserley, and Jeffrey W. Ubben (collectively "Defendants"). The action, which was filed in the United States District Court for the Eastern District of Virginia, asserts claims under Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act"), 15 U.S.C. Secs. 78n(a) and 78t(a), and U.S. Securities and Exchange Commission ("SEC") Rule 14a-9 promulgated thereunder, 17 C.F.R. Sec 240.14a-9, on behalf of all Towers shareholders of record as of October 2, 2015, the record date for Towers shareholders to be eligible to vote on the merger between Towers and Willis. This action arises from the merger between Towers and Willis (the "Merger"), which closed on January 4, 2016. The Complaint alleges that, in connection with the Merger, Defendants violated provisions of the Exchange Act by issuing false and misleading statements in proxy materials filed with the SEC. Prior to the Merger, Towers was a leading global consulting company that helped organizations improve performance through risk management, human resources, actuarial and investment services. Willis, which was based in London, was a multinational risk advisor, insurance brokerage, and reinsurance brokerage company. On June 30, 2015, Towers and Willis announced that they had entered into an agreement to merge, pursuant to which Towers stockholders would receive 2.649 shares of Willis stock and a $4.87 per share cash dividend in exchange for each Towers share. Under the agreement, Towers shareholders would own 49.9% of the combined entity, with Willis shareholders owning the remaining majority. The merger required the approval of a majority of Towers shareholders. Facing waning shareholder support for the merger, the Towers Board of Directors authorized Towers Chairman and CEO Haley to renegotiate the deal terms. Rather than negotiate in the best interests of Towers shareholders, Haley conspired with Willis executives and a major Willis shareholder, ValueAct, and not negotiate to maximize the value of Towers shares. Instead, Haley worked to persuade Towers' Board and Towers shareholders that a meager $5 increase in the special dividend was the most he could extract from Willis. Defendants made numerous misrepresentations to Towers shareholders to mislead them into accepting consideration from the Merger that was well below fair value for their Towers shares. If you wish to serve as lead plaintiff for the Class, you must file a motion with the Court no later than January 22, 2018, which is the first business day on which the United States District Court for the Eastern District of Virginia is open that is 60 days after November 22, 2017. Any member of the proposed class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain a member of the proposed class. Cambridge is represented by BLB&G, a firm of over 100 attorneys with offices in New York, California, Louisiana, and Illinois. If you wish to discuss this Action or have any questions concerning this notice or your rights or interests, please contact Avi Josefson of BLB&G at 212-554-1493, or via e-mail at avi@blbglaw.com. Since its founding in 1983, BLB&G -- http://www.blbglaw.com-- specializes in securities fraud, corporate governance, shareholders' rights, employment discrimination, and civil rights litigation, among other practice areas, BLB&G prosecutes class and private actions on behalf of institutional and individual clients worldwide. [GN] WOODFORD TRANSPORTATION Settlement Obtains Preliminary Approval --------------------------------------------------------------- The Register-Herald reports that Greenbrier County Judge Robert E. Richardson gave preliminary approval on Nov. 20 to a class action settlement agreement of $4 million in an action brought against Kenneth Pritt, Woodford Transportation and Woodford Oil Company following exposure to a diesel spill into a tributary that fed into the Anthony Creek in January 2015. The incident occurred on W.Va. 92 just south of Neola when a tanker truck left the roadway and entered into the tributary. The tanker separated from the truck portion when it went into the tributary where it started leaking, according to the suit. As a result of the spill, contaminants were introduced into the Greenbrier River, causing the city of Lewisburg to shut down its water treatment plants on Jan. 24, 2015. By the afternoon of Jan. 25, 2015, the water supplies in these areas were exhausted, leaving parts of the community with no water. Area businesses, restaurants, schools and daycares were ordered closed by the Greenbrier County Health Department; and individuals were left without potable water for drinking, bathing, cooking and cleaning. The Class includes all persons who resided in a dwelling that was supplied tap water by the Lewisburg Municipal Water System that was shut off on January 24, 2015, due to the diesel spill in Anthony Creek, and all owners of or persons who were hourly wage earning employees in a business supplied by the Lewisburg Municipal Water System that was shut off January 24, 2015. According to a press release, the settlement terms are to be distributed as follows: -- $250 for each residential household including one person, and $150 for each additional person in said residential household, which was provided tap water service from the water treatment plant operated by the City of Lewisburg on January 24, 2015, and who was without water as a result of the January 23, 2015, diesel spill into Anthony Creek. -- $240 for each person employed on January 24, 2015, at a business that was provided tap water service from the water treatment plant operated by the City of Lewisburg that shut down or partially shut down because it was without water as a result of the January 23, 2015, diesel spill into Anthony Creek and who was not paid wages as a result of that shut-down; and -- Payment of not more than $3,100 to each business that operated a property location provided tap water service from the water treatment plant operated by the City of Lewisburg. According to previous reports, Mr. Pritt was not charged or cited for the accident. [GN] ZWICKER & ASSOCIATES: Faces "Murdolo" Suit in E.D. of New York -------------------------------------------------------------- A class action lawsuit has been filed against Zwicker & Associates, P.C. The case is styled Frederico Murdolo, on behalf of himself and all others similarly situated, Plaintiffs v. Zwicker & Associates, P.C., Defendant, Case No. 2:17-cv-07208 (E.D. N.Y., December 11, 2017). Zwicker & Associates, P.C. is a law firm and Professional Corporation organized under the laws of Massachusetts in 1991.[BN] The Plaintiff is represented by: Craig B. Sanders, Esq. Sanders Law, PLLC 100 Garden City Plaza, Suite 500 Garden City, NY 11530 Tel: (516) 203-7600 Fax: (516) 281-7601 Email: csanders@sanderslawpllc.com * Beer Manufacturers Face False Labeling Class Actions ------------------------------------------------------ Alva C. Mather, Esq. -- matherac@pepperlaw.com -- of Pepper Hamilton, in an article for Law.com, wrote that following a trend for food and beverage manufacturers generally, beer manufacturers have seen an increasing number of class action lawsuits filed against them under state false labeling and consumer fraud statutes. 2017 has been no exception to this trend with plaintiffs in multiple lawsuits narrowing in on claims of deception advertising by beer manufacturers related to the perceived disconnect between where their advertising statements and related packaging suggest their beer is produced as opposed to its actual place of production. In a series of judicial decisions on defendant brewers' motions to dismiss it is clear that the legal landscape is a mixed case for both plaintiffs pursuing false labeling claims as well as brewers ability to defend their product advertising. Early Victories In early 2017, the U.S. District Court for the Eastern District of New York tackled and granted motions to dismiss false labeling claims related to the sale of "Australian" and "Japanese" beer. In the first case, Bowring v. Sappora, U.S.A., 234 F. Supp. 3d 386, 388 (E.D.N.Y. 2017), the plaintiff alleged that the defendant "created a misleading impression that Sapporo beer is a Japanese import, when in fact, it is produced in the United States and Canada." Reviewing the history of Sapporo beer, the court noted that "Sapporo beer was originally brewed in Japan in 1877, and first imported to the United States in 1964. In 1984, defendant Sapporo Inc. was established in the United States . . . All Sapporo now sold in the United States is brewed in La Cross, Wisconsin, or Guelph, Ontario, Canada." According to the complaint, the following advertisements and slogans caused the plaintiff to purchase and pay a premium for Sapporo beer based on the misleading impression that the beer was brewed in Japan and imported into the United States: "a television commercial with imagery of a 'Japanese landscape being traveled into American landscape,' ending with the slogan 'The Original Japanese Beer;'" "Slogans 'Sapporo-the Original Japanese Beer' and 'Japan's Oldest Brand;'" "Statements on the defendant's website that 'Sapporo is the original Japanese beer;'" and an "Image of the North Star, a 'symbol of pioneers in the area of Sapporo' on labels." Despite these slogans and statements, the beer labels themselves provided on each beer label either the statement "Imported by Sapporo U.S.A., Inc., New York, N.Y." followed by "Brewed and canned [or bottled] by Sapporo Brewing Company, Guelph, Ontario, Canada" if manufactured in Canada, or "Brewed and Bottled [or Canned] by Sapporo Brewing Company, La Cross, Wisconsin for Sapporo U.S.A., New York, N.Y." In considering whether plaintiffs adequately pleaded claims for false advertising under Illinois and New York state law, the court specifically considered whether these disclaimers as well as their font size, placement and emphasis were sufficient to alert a reasonable consumer that such products were not, in fact, brewed in Japan. After reviewing these factors, the court determined that Sapporo's conduct would not mislead a reasonable consumer. In particular, "the disclosure statement on Sapporo appears in contrasting, visible font, and states in clear language where the product is produced." Indeed, "the use of a trademarked start symbol and allusion to the company's historic roots in Japan are eclipsed by the accurate disclosure statement." Several months later, another judge in the same district, considered and granted defendant MillerCoors' motion to dismiss a similar lawsuit brought by the same plaintiffs' counsel related to the advertising of Foster's Beer. In Nelson v. MillerCoors, 246 F. Supp. 3d 666, 671 (E.D.N.Y. 2017), the plaintiff alleged that he purchased and paid a premium for Foster's Beer based on the misleading campaign and advertisements that Foster's was produced in Australia, rather than Fort Worth, Texas. In support, the plaintiff pointed to "the brand slogan 'Foster's-Australian for Beer," the 'How to Speak Australian' television ads 'depicting Foster's as being a product from Australia by using Australian accents and scenery' and the official website for Foster's Beer" which references the use of Australian hops and Australian imagery. In assessing the plaintiff's claims, the court again looked to the effectiveness and impact of MillerCoors disclaimers on an objectively reasonable consumer. Here, the court found that "Foster's Beer labels contain an explicit disclaimer as to the place of production -- 'Brewed and packaged under the supervision of Foster's Australia LTD, Melbourne, Australia by oil can breweries, Albany, Georgia and Fort Worth, Texas." Of particular significance to the court was the fact that these disclaimers were displayed on every bottle and can of Foster's and that MillerCoors used no exterior packaging that would obstruct the disclaimer. In the end, the court granted MillerCoors' motion finding that "every single representation the plaintiff pleaded reliance on, across every medium, is accompanied by language indicating the beer is brewed in the United States" and that "the images of a kangaroo and a constellation and allusion to the company's historic roots in [Australia] are eclipsed by the accurate disclosure statement." Recent Defeats After successfully defeating proposed class action claims in the Eastern District of New York, beer manufacturers sought similar results in two cases filed in the U.S. District Court for the Northern District and Central District of California. Unfortunately for these defendants, in both instances the plaintiffs were able to overcome similarly styled motions to dismiss to continue to pursue their claims. The first case, Broomfield v. Craft Brew Alliance, No. 17-cv- 01027-BLF, 2017 BL 310562 (N.D. Cal. Sept. 01, 2017), relates to allegations that Craft Brew Alliance (or CBA) misled consumers into believing that its Kona Brewing Company beer was exclusively brewed in Hawaii. In support of its claims, the plaintiff point to several factors including the fact that while Kona has a Hawaiian brewery that makes draft beer sold in Hawaii, all of the beer sold outside of Hawaii is produced in the states of Oregon, Washington, New Hampshire and Tennessee. Further, the plaintiff alleged that Kona beer was packaged and marketed with various images depicting Hawaiian-related images as well as an image of a map of Hawaii which marks the location of the Kona Brewing Co., statements that consumers are invited to visit the brewery and pubs in Hawaii, as well as including the specific Hawaiian address for the brewery. As with Sapporo and Foster's beer, CBA provided a disclaimer on its label that listed the five locations Kona beer is produced including "Kona, Hawaii, Portland, Oroegon, Woodinville, Washington, Portsmouth, New Hampshire and Memphis, Tennessee." However, in the end, this disclaimer did not overcome the plaintiff's allegations in the court's mind. Specifically, in denying CBA's motion to dismiss, the court found that if there were only "alleged pictures of surfboards and the vague phrase 'Liquid Aloha' on the beer packaging, the case would end there." Here, in contrast, the "Hawaiian address, the amp of Hawaii identifying Kona's brewery on the Big Island, and the statement 'visit our brewery and pubs whenever you are in Hawaii' are . . . specific and measurable representations of fact that could deceive a reasonable consumer into believing that . .. Kona beer was brewed in Hawaii." In distinguishing the New York cases, the court also noted that while the disclaimer was on beer label, the plaintiffs alleged that the packaging was deceptive which both did not include the disclaimer and obstructed the disclaimer language on the label. Given these findings the court denied CBA's motion to dismiss allowing the plaintiff's claims to go forward. Finally, in a decision in Shalikar v. Asahi Beer U.S.A., No. 17- cv-02713 (C.D. Cal. Oct. 16, 2017), Asahi Beer lost its motion to dismiss claims that it falsely led consumers into believing its beer was brewed in Japan rather than the United States and Canada. In support of its claims, the plaintiff pointed to the inclusion of Japanese script and related English translations on the label and packaging of Asahi beer. The plaintiff also alleged that in a recent survey of 1,000 representative adults, 86 to 87 percent of respondents believed that the beer was brewed in Japan based on the labels and packaging. As with the other brewers, Asahi Beer provided a disclaimer on its label and packaging that stated: "Brewed and bottled under Asahi's supervision by Molson Canada, Toronto, Canada, imported by Asahi Beer U.S.A., Inc., Torrance, California product of Canada. However, this disclaimer was not sufficient to defeat the plaintiff's claims. In deciding to deny Asahi's motion to dismiss, the court held that a motion "may be granted if a disclosure on the product concerning the challenged language does not contradict other representations or inferences on the packaging and labels . . ." Given the contradictions between the Japanese script, as well as the alleged survey results, the court determined that the existence of the disclaimer in-and-of-itself was not sufficient to dismiss the plaintiff's suit. Lessons Learned While it's difficult, in part, to determine a common thread between these four cases beyond jurisdictional distinctions a few points stand out. The first, is that any disclaimer needs to specifically identify where the beer is being brewed, not just where it could be produced The second, is that the disclaimer needs to be prominent in size and contrast and be visible to the consumer on the packaging as well as the beer label. The third, and final lesson, is that brewers should be particularly sensitive to specific statements or claims that suggest a beer styled as an import is actually manufactured outside of the United States (or Canada). Alva C. Mather is a partner in the health sciences department of Pepper Hamilton, resident in the Philadelphia office. She is chair of the firm's alcoholic beverage industry practice group and co-chair of the food and beverage industry practice group. [GN] * Data Breach Class Action Settlements Getting Bigger ----------------------------------------------------- Hanley Chew, Esq., and Tyler Newby, Esq. of Fenwick & West, in an article for Law.com, report that in June 2017, Anthem, Inc. agreed to pay a record $115 million to settle class action lawsuits stemming from a 2015 data breach that involved the personal information of nearly 80 million of Anthem's customers. Although the Anthem settlement appears to be an outlier, there have been a number of other notable data breach settlements in the past few years. In 2016 and 2017, Home Depot settled the class action lawsuits based on the breach it had suffered for $19.5 million. Similarly, in 2015 and 2016, Target paid $10 million to settle the data breach class action lawsuits. Are these settlements coincidental, or are they party of a trend that is likely to continue? Although each data breach class action arises out of its own particular circumstances, there are a number of factors that seem to be contributing to these large settlements. First, overall, more data breach class actions appear to be proceeding past challenges at the pleadings stage, although there are some exceptions in certain circuits. Prior to the last two years, the vast majority of courts dismissed data breach lawsuits for lack of subject matter jurisdiction because plaintiffs failed to allege concrete injuries that established Article III standing. Despite the breaches, many plaintiffs (and proposed class members) were not actual victims of identity theft. Instead, these plaintiffs relied on allegations that the breaches subjected them to an increased risk of becoming identity theft victims. The courts typically found such allegations too speculative to constitute harm sufficient to meet the constitutional requirements for standing. A few circuits with large population centers still adhere to this position. In 2017, the Second (Whalen v. Michaels Stores, Inc.,), Fourth (Beck v. McDonald) and Eighth (In re SuperValu, Inc. Customer Data Security Breach Litigation) Circuits all held that data breach plaintiffs must allege an actual injury in the form of successful fraudulent charges on their existing credit or debit card accounts or the opening of new fraudulent accounts based upon their stolen personal information to satisfy Article III's standing requirements to survive a motion to dismiss for lack of standing. In contrast, the Sixth (Galara v. Nat. Mut. Ins. Co.), Seventh (Lewert v. PF Chang's China Bistro, Inc.) and D.C. (Attias v. CareFirst, Inc.) Circuits have adopted a broader interpretation of what is required to establish standing in data breach cases. These Circuits have found that allegations that the personal information of plaintiffs was stolen in a data breach resulting in a heightened risk of future identity theft and that plaintiffs incurred mitigation costs in response to that increased risk establish an injury sufficient to establish Article III standing. The Sixth and Seventh Circuits have also found that an offer by a company or organization to provide free identity fraud protection and credit monitoring services following a data breach can create an inference that the company recognizes that the risk of future harm from that breach is substantial. In these circuits, data breach complaints are more likely to be able to survive a motion to dismiss for lack of standing. Second, the class sizes of persons affected by data breaches seems to have increased in recent years. Three of five largest data breaches of all time -- Yahoo (3 billion user accounts), Adult Friend Finder (412.2 million accounts), and Equifax (personal information of 143 million accounts) -- have occurred in the last two years. The more customer information that is involved in a breach will typically also increase the costs associated with that breach, including any settlement. There are numerous reasons why the potential size of data breaches have grown. The amount of data online has grown exponentially in the past few years. More than 3.8 billion people are currently using the Internet. A 2016 IBM Marketing Cloud report estimates that these people are generating 2.5 quintillion bytes of electronic data every day. This staggering amount of available data (much of which organizations collect and store) greatly increases the scope of potential data breaches. In addition, the potential sources of data breaches have also become more varied and advanced. Not only does the individual hacker continue to pose a threat, but the threat landscape has swelled to include criminal organizations, nation-states and ideologically-motivated hacktivists. Given the significant potential return from a data breach, many of these threats have devoted considerable resources to developing increasingly sophisticated hacking tools and techniques. Third, as data breaches have become larger, so have the number of parties seeking some type of redress for those breaches. A company that has suffered a data breach of its customer information must now face not only class action lawsuits from those customers but also potential investigations and enforcement actions from the Federal Trade Commission (FTC) and/or state attorney general and consumer protection offices. In settling investigations or actions based on data breaches, the FTC typically does not impose a monetary penalty on the company that has been breached. Instead, the company and FTC will agree to a consent order requiring the company to rectify any identified vulnerabilities or deficiencies, establish a comprehensive information security program and conduct annual or biannual assessments of its network security for a set period of time (which is usually 20 years). For example, after filing a complaint against Wyndham Worldwide Corp. for allegedly deficient security practices that purportedly led to three data breaches, the FTC did not fine Wyndham but instead settled the case with a consent order requiring Wyndham to establish a comprehensive security program designed to protect cardholder data, comply with Payment Card Industry (PCI) standards, and undergo third party security assessments for 20 years. In contrast, state attorney general and consumer protection offices typically seek monetary penalties in addition to remedial action on the part of the company that has suffered the breach. For instance, Hilton Worldwide recently settled an investigation by the New York and Vermont attorney general offices by agreeing to pay $700,000, improve its monitoring for potential threats and adhere to PCI standards. The settlement amount usually rises if more states are involved. In one of the largest settlements with state attorney general offices, Target agreed to pay $18.5 million to settle claims by 47 states and the District of Columbia and resolve a multi-state investigation into the 2013 data breach that it suffered. The latest entrant into the data breach settlement arena have been banks and credit unions, which have bring lawsuits to recoup the damages that they suffered from data breaches, such as the cost to issue new payment cards to customers. Target agreed to pay $39.4 million to resolve claims by banks and credit unions resulting from its 2013 data breach. Home Depot also agreed to pay $25 million to resolve a putative class action brought by financial institutions which were allegedly harmed by Home Depot's 2014 data breach. The presence of so many claimants may be producing pressure for companies to not only settle but settle for large dollar amounts. Given the potential growth in the size of data breaches and corresponding settlements, the best thing that companies can do is to take preventative measures to increase the likelihood that breaches do not occur: 1. Companies should conduct frequent risk/security assessments and vulnerability scans/penetration testing to discover the deficiencies in their network security. 2. Companies should keep the operating system and other software on their systems constantly updated with the latest patches. Unpatched vulnerabilities in operating systems and software are a common entry point for malware. 3. Companies should vet the security of vendors that have access to the companies IT systems. As the Target breach demonstrated, vendors can introduce vulnerabilities that allow malicious actors access to corporate networks. 4. Companies should employ up-to-date and multiple antivirus programs to maximize the likelihood of preventing a malware infection. 5. Organizations should educate all employees that unauthorized network intrusion often rely on malicious email attachments or links in phishing emails. Companies should train their employees to verify the legitimacy of an email before opening an attachment or clicking on a link in the email. They should also be trained to confirm any unusual instructions they might receive in what seems to be a legitimate email. 6. Organizations should not enable any macros that originate from email attachments. If a user opens an email attachment and enables a macro from the attachment, embedded code may execute malware. 7. Organizations should consider using an advanced email filtering solution to keep suspicious or malicious files in a "demilitarized zone" off the company's network. 8. Finally, organizations may wish to use application whitelisting, which lists the legitimate applications that may be run on a system but blocks other unauthorized programs. An ounce of prevention may go a long way to prevent the payment of a big settlement. Hanley Chew is Of Counsel in the Litigation Group with Fenwick & West. He focuses his practice on privacy and data security litigation, counseling and investigations, as well as intellectual property and commercial disputes affecting high technology and data driven companies. Tyler Newby is a Partner in the Litigation Group and Co-Chair of the Privacy & Cybersecurity Group with Fenwick & West. He focuses his practice on privacy and data security litigation, counseling and investigations, as well as intellectual property and commercial disputes affecting high technology and consumer-facing companies. [GN] * Number of CPLR Article 9 Class Actions Increases in New York -------------------------------------------------------------- Thomas A. Dickerson, writing for Law.com, reports that since the Court of Appeals' expansive decision in Borden v. 400 East 55th Street Associates, 24 N.Y. 3d 382 (2014), there has been a noticeable increase in the number of CPLR Article 9 class actions, particularly, those brought on behalf of consumers, tenants and employees. This year has been no exception. First, the Appellate Division, First Department sought to protect shareholder interests in "merger tax" litigation by enhancing the standards for the approval of disclosure-only class action settlements. Gordon v. Verison Communications, 148 A.D.3d 146 (1st Dept. 2017); Dickerson, "Disclosure-Only Settlements in State Courts," N.Y.L.J. (Sept. 14, 2017). Second, the First Department sought to protect employees by declining to enforce an arbitration agreement as violative of the National Labor Relations Act. Gold v. New York Life Insurance Company, 2017 N.Y. App. Div. LEXIS 5627 (1st Dept. 2017); Dickerson, "New York State Class Actions: Taking a Stand for Labor," N.Y.L.J. (Aug. 10, 2017). [GN] * Saudi Arabian CMA Board Approves Class Action Regulations ----------------------------------------------------------- The Saudi Arabian Capital Market Authority (CMA) issued a statement stating that the CMA board has issued its resolution to approve the Class Action Suit Regulations and to amend the Resolution of Securities Disputes Proceedings Regulations accordingly. A class action suit can be defined as "a suit filed by a group of plaintiffs against one or more defendants, where the group of plaintiffs' suit share the same legal bases, merits and the subject matter of the requests. Any decision made on the case shall affect all of its parties". The Chairman of the Board of the CMA, H.E Mohammed bin Abdullah Al-Quwaiz, said that the Authority, through enabling and regulating the Class Action in securities disputes, aims at protecting investors and facilitating the procedures of litigation for the participants in the capital market, especially in cases where the plaintiff is a large group of persons, who share the same legal bases, merits and the subject matter of the requests, which is appropriate to the nature of the listed companies and the size of their shareholders. Al-Quweiz added that the regulation of the Class Action would bring about a qualitative leap in securities disputes in the Kingdom, which in turn would enhance the attractiveness of the capital market and reduce the risk of investing in it, in addition to reducing the time required to resolve investors compensation cases and reducing litigation costs in this type of cases. Al-Quwaiz stressed that this project comes within the framework of the Authority's numerous initiatives aimed at protecting investors, such as the "Investor Protection Department", which was recently established within the Authority, and the electronic system for receiving and resolving reported violations of the Capital Market Law and its Implementing Regulations, In addition to mandating listed companies to make electronic voting available for shareholders in the general assemblies of such companies. Mr. Bader Bin Mohammed Balghonaim, the Deputy of Legal Affairs and Enforcement, stated that during the drafting of the Class Action Regulations, the Authority has taken into account the best relevant international practices, in accordance with the nature of the Saudi capital market and in conformity with the applicable and established rules of litigation in the Kingdom, where relevant legislations has been examined and studied in many developed markets such as the United States, the United Kingdom, Germany and Hong Kong. Balghonaim pointed out that the Authority, in line with its interest to communicate and consult with investors and government and private entities about the draft regulations prior to its issuance, has published earlier the draft of the Class Action Regulation for public consultation, praising the magnitude of interest that the project of Class Action Regulations received from the public, and appreciating all opinions, observations and suggestions received from various parties and individuals, all of which have been taken into account. Balghonaim added that the Authority intends to organize workshops on the Class Action Regulations in securities disputes, directed to legal advisors and interested parties in order to discuss the Class Action's provisions, mechanisms and objectives and, and the locations and times of these workshops will be announced at a later date. The regulations included several detailed provisions that were meant to clarify the mechanisms and procedures of the class actions and the rights of its parties. For example, it included the provisions of registering a class action suit, the conditions for accepting a request to register a claim as a class action suit, the addition of new plaintiffs after the suit was registered, the regulation of the representation of the plaintiffs and restrictions on them, the rights of the parties of the claim, the criteria for selecting the lead plaintiff and the lead appellant, in addition to regulating the procedures of withdrawing and settlement, and the role of the "Committee Resolution of Securities Disputes" in the management of the class action. In regards of the selection of the lead plaintiff, the regulation sets forth the criteria on which the members of the group of plaintiffs select the lead plaintiff, including the plaintiff's suitability to take actions related to the proceedings of the class action while taking into account the interests of the members of the group of plaintiffs, stating that the lead plaintiff shall be able to perform these functions at all stages of the proceedings, to adequately understand his obligations toward the group of plaintiffs and to be fully aware of the all details of the case and the facts relating thereto. The regulation also paid attention to regulating the relationship among members of the group of plaintiffs and toward each other by a written agreement between them that shall identify many relevant aspects, determining the lead plaintiff's obligations toward the suit and the group of plaintiffs, including the level of power vested in the lead plaintiff as whether to appoint a lawyer to follow up with class action suit, in addition to determining the compensations of the lead plaintiff and the lawyer (if any), and any other terms, restrictions or obligations that the group of plaintiffs deems fit. [GN] * Senate Votes to Nullify CFPB's Arbitration Rule ------------------------------------------------- The Associated Press reports that the Senate has voted to nullify a consumer-oriented rule that would let millions of Americans band together to sue their banks or credit card companies. Vice President Mike Pence has cast the tie-breaking vote to stop the rule from going into effect. Many consumers must go through an arbitrator to resolve financial disputes, but the Consumer Financial Protection Bureau finalized a rule that bans most types of mandatory arbitration clauses. The rule exposed banks to large class-action lawsuits. Supporters say that possibility would help ensure banks, credit card companies and other lenders treat consumers appropriately. The vote comes months after House action and reflects the effort of the Trump administration and congressional Republicans to undo regulations that the GOP argues harm the free market. [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. Agravante, Valerie Udtuhan, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2017. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000 or Joseph Cardillo at 856-381- 8268. * * * End of Transmission * * *