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/raid1/www/Hosts/bankrupt/CAR_Public/180110.mbx C L A S S A C T I O N R E P O R T E R Wednesday, January 10, 2018, Vol. 20, No. 8 Headlines 125 COURT STREET: 421-A Tenants Appeal Denial to 2nd Circuit 3M CO: Bair Hugger Plaintiffs Can Present Expert Witnesses 21ST CENTURY: Settles Class Action Over 2015 Data Breach ABBOTT LABS: 9th Cir. Affirms Dismissal of Class Action ABC CORP: "Castillo" Claims Unpaid Overtime, Spread-of-Hours Pay ACCOUNT CONTROL TECH: "Nolan" Action Disputes Collection Letter ADVANCED NEUROCARE: Faces Class Action Over Unsolicited Fax Ads ALL GREEN: "Hinnant" Seeks to Recover Minimum and Overtime Wages AMERICAN TRANSIT: Removes MSP Recovery Class Suit to S.D. Fla. AQUA METALS: "Heath" Sues Over Share Drop from Failed Process AT&T MOBILITY: 9th Cir. Refuses to Revive Broadband Class Action ATLANTA HAWKS: Feb. 8 Settlement Opt-Out Deadline Set AUSTRALIA: Manus Island Detainees to Get $70MM Settlement Payout BAR TACO: Faces Class Action Over Hepatitis A Outbreak BIG PHARMA: Randolph County Mulls Opioid Crisis Class Action BIG PHARMA: Williamson County to Join Opioid Crisis Class Action BIG PHARMA: Bloomington, Monroe County Join Opioid Class Action BIG PHARMA: Dale County Invited to Join Opioid Class Action BIG PHARMA: La Crosse County Weighing Options for Opioid Case BIG PHARMA: Arkansas Municipalities File Opioid Class Action CABLE & WIRELESS: Won't Delist Shares of Class Action Plaintiffs CHENG DU: Didn't Pay Minimum & Overtime Wages, "Liu" Suit Says CHICAGO, IL: Lawyer Objects to Red Light Camera Settlement CITIGROUP INC: Defendants Ask 2nd Cir. Review of "Leber" Ruling CITIZENS INC: Robbins Arroyo Investigates Fiduciary Duty Breach CITY OF REDONDO BEACH: "Arnold" Action Seeks Unpaid Overtime Pay COMBINED INSURANCE: Dolmage Appeals Ruling to Seventh Circuit COOK COUNTY, IL: Faces Another Class Action Over "Pop Tax" EDISON INT'L: Judge Says HR Reps Mishandled 401(k) Plans ELECTRICITY MAINE: Zurich Doesn't Want to Cover Litigation Claims EQUITY RESIDENTIAL: Judge Allows Tenants to Pursue Class Action ETHICON: Fails to Fully Inform Doctors of Vaginal Mesh Risks FACEBOOK INC: Gullen Moves for Certification of Non-User Class FELIDIA RESTAURANT: Jara Seeks to Recover Minimum and OT Wages FINISAR CORP: Shearman Comments on Denial of Class Certification FUJITSU TECHNOLOGY: Settles 401(k) Plan Class Action for $14MM GAP INC: Accused by "Kaible" of Sending Illegal Marketing Texts GARDANT MANAGEMENT: Faces Class Action Over BIPA Violation GARNETT STATION: "McGee" Seeks to Recover Wages for Shift Leaders GC SERVICES: Mails Misleading Collection Letters, Jaber Claims GENERAL MOTORS: Faces Class Action Over Salt Contamination GEO GROUP INC: Underpaid "Novoa" Claiming Minimum Wages GEORGIA: Retirees File Class Action Over Health Insurance Plan GLOBAL CREDIT: "Goethel" Suit Claims FDCPA Violations GOMEZ ENTERPRISES: Fails to Pay Overtime, "Calixto" Suit Alleges GOOGLE INC: Fails to Refund Advertisers for Invalid Clicks GOOGLE INC: Faces Class Action in B.C. Over Data Collection GUAM: Settlement Unlikely in H-2B Visa Program Class Action HILMER CONSTRUCTION: "Sandoval" Sues Over Unpaid Overtime HOFFMANN-LA ROCHE: NJ Sup. Court Adopts Daubert in Accutane Case HOME CAPITAL: West Face Files Suit Over Misleading Disclosures HOME POINT FINANCIAL: "Noroma" Suit to Recover Overtime Pay HYATT HOTELS: Livi Appeals E.D. Pa. Ruling to 3rd Circuit HYLAND'S HOMEOPATHIC: Consumers Sue Over Teething Tablets Recall INNATE INTELLIGENCE: Judge Dismisses TCPA Claims in Fax Case INVENTURE FOODS: Faruqi & Faruqi Files Securities Class Action JAMES HARDIE: Homeowners Have Until Jan. 30 to Join Cladding Case KIMBERLY-CLARK CORP: Wants Court to Block Flushable Wipes Law KINGSBRIDGE MARKETPLACE: Sued by "Estrada" Over Unpaid Overtime LANNETT CO: Law Firm Investigates Potential Fiduciary Duty Breach LULAROE CO: Accused of Operating Pyramid Scheme LYFT INC: Settles Class Action Over Toll Charges MARVELL TECHNOLOGY: Court Certifies Class in Shareholder Case MASSACHUSETTS MUTUAL: Vitale Appeals Judgment in "Bacchi" Suit MECTA CORPORATION: Riera Seeks Cert. of Patients, Spouses Classes MEDICAL DATA: "Patti" Suit Seeks Redress for Collection Letters MEDICIS PHARMA: March 12 Trial Set in Solodyn(R) Class Action MERIDIAN BIOSCIENCE: Faces Shareholder Class Actions MINED MINDS: Faces Class Action Over Fraudulent Training Program MONITRONICS INT'L: Settles Class Action Over Illegal Robocalls MONKEY CAPITAL: "Hodges" Claims Monkey Coin a Fraud NASPERS: Faces Three Investigations Amid Class Action NEW JERSEY: Faces Class Action Over Women's Prison Sexual Abuses NEW ORLEANS SAINTS: Fan's Anthem Demonstration Suit No Chance NEW YORK: Court OKs Inmates' Solitary Confinement Settlement NFL: Judge Brody Blocks Litigation Funding Agreements ONTARIO: Faces Class Action Over Abuse in Training Schools ONTARIO: Koskie Minsky, Watkins File Suit Over Schools Abuses OSI SYSTEMS: Bragar Eagel Files Securities Class Suit PENNSYLVANIA: Referees File Class Action Over Contractor Status PHARM-SAVE INC: W-2 Data Breach Class Action Can Proceed PURITAN'S PRIDE: Seeks Dismissal of BOGO Class Action QUDIAN INC: Faruqi & Faruqi Files Securities Class Action in NY R&R MATTRESS: Fails to Pay Right Overtime, "Koutroupis" Suit Says RANDHAWA INC: Faces "Pant" Suit in E.D. New York REALREAL INC: Faces Class Action Over Inflated Gemstone Weights RFR CAPITAL LLC: "Martin" Action Seeks Unpaid Overtime Pay RHODE ISLAND: Health Secretary Faces "Scherwitz" Class Suit SANOFI SA: Taxotere Label Didn't Warn of Hair Loss, Says "Dewees" SANOFI SA: "McGaughey" Suit Alleges Hair Loss From Taxotere SANTA BARBARA, CA: Class Action Seeks Reform at County Jail SCOTTRADE INC: Ninth Circuit Appeal Filed in "Hine" Class Suit SETERUS INC: "Corrigan" Sues Over Autodialed Collection Calls SHAUN'S TOWING: Faces Class Action Over Unpaid Overtime Wages SHREVEPORT, LA: Judge Tosses Non-Disclosure Contract Breach Case SIMMONS FOODS: Faces Class Actions Over Work Camp Programs SUNRUN INC: Slovin Moves for Certification of Seven Classes TABLEAU SOFTWARE: Law Firm Probes Potential Fiduciary Breach TAIWAN KAI: Feb. 16 Settlement Fairness Hearing Set TEACHERS HEALTH: Faces Insurance Fraud Class Action TEXAS: Judge Says Foster Care System "Broken" TOYS OUTLET: "Guzman" Claims Overtime Pay, Minimum Wage UBER TECHNOLOGIES: Settles Second US Lawsuit Over 2014 Rape UNITED AIR: Removes "Johnson" BIPA Violations Suit to N.D. Ill. UNITED STATES: Veterans File Class Action Over 1966 Bomb Accident UNITED STATES: Veterans Affairs Mum on Radiation Class Action US BANCORP: Tiran Appeals Ruling in "Wert" Suit to Ninth Circuit VIRGINIA CREDIT: McLamb Sues Over Collection of Overdraft Fees VOLVO CARS: Must Face Hybrid SUV False Marketing Class Action WOLVERINE WORLD: Brokovich Serves as Consultant in PFAS Case * Arbitrators Found to Have Significant Pro-Business Bias * Defense Bar Losing War in Securities Class Action Litigation ********* 125 COURT STREET: 421-A Tenants Appeal Denial to 2nd Circuit ------------------------------------------------------------ Plaintiffs 421-A Tenants Association Inc., Richard Lebed and Vinetta Scrivo filed an appeal from an order denying their motion for reconsideration in the lawsuit entitled 421-A Tenants Association Inc., et al. v. 125 Court Street LLC, et al., Case No. 1:17-cv-00563-AMD-SJB (E.D.N.Y.). The appellate case is captioned as 421-A Tenants Association Inc., et al. v. 125 Court Street LLC, et al., Case No. 17-3964, in the United States Court of Appeals for the Second Circuit. Judge Ann M. Donnelly on December 7, 2017, denied the Plaintiffs' motion for reconsideration of the November 2, 2017 Order and for leave to file a second amended complaint as to all claims. In her November 2 Order, Judge Donnelly granted the Defendants' motion to dismiss the lawsuit. As previously reported in the Class Action Reporter on Dec. 15, 2017, the Plaintiffs appealed the November 2 Order. That appellate case is captioned as 421-A Tenants Association Inc., et al. v. 125 Court Street LLC, et al., Case No. 17-3865. The lawsuit arises from alleged violations of the Racketeer Influenced and Corrupt Organizations Act.[BN] Plaintiffs-Appellants 421-A Tenants Association Inc., Vinetta Scrivo and Richard Lebed, on behalf of themselves and all others similarly situated, are represented by: Robert John Valli, Jr., Esq. Sara Wyn Kane, Esq. Matthew L. Berman, Esq. VALLI & KANE, LLP 600 Old Country Road, Suite 207 Garden City, NY 11530 Telephone: (516) 203-7180 Facsimile: (516) 706-0248 E-mail: rvalli@vkvlawyers.com skane@vkvlawyers.com mberman@vkvlawyers.com Defendants-Appellees 125 Court Street LLC, Two Trees Management Co. LLC, 30 Main LLC, DW Associates LP, David C. Walentas, Jed D. Walentas and 194 Atlantic LLC are represented by: Paul Shechtman, Esq. Rita Kathleen Maxwell, Esq. BRACEWELL LLP 1251 Avenue Of The Americas, 49th Floor New York, NY 10200 Telephone: (212) 508-6107 Facsimile: (800) 404-3970 E-mail: paul.shechtman@bracewelllaw.com rita.maxwell@bracewelllaw.com - and - David Shargel, Esq. BRACEWELL & GIULIANI LLP 1177 Avenue Of The Americas, 19th Floor New York, NY 10036 Telephone: (212) 508-6154 Facsimile: (212) 938-3854 E-mail: david.shargel@bgllp.com 3M CO: Bair Hugger Plaintiffs Can Present Expert Witnesses ---------------------------------------------------------- Joe Carlson, writing for Star Tribune, reports that 3M's legal strategy of winning thousands of hospital-infection lawsuits by undermining their scientific credibility failed on Dec. 13, as U.S. District Judge Joan Ericksen ruled that the plaintiffs can present their preferred expert witnesses to support their claims in court. Maplewood-based 3M sells a forced-air patient-warming device called the Bair Hugger, which is widely used in hospitals to keep patients warm during surgery as a way to promote healing and prevent infections. Thousands of people say the device caused their infections during joint-replacement surgery by blowing contaminated air on them and disrupting the normal flow of air that keeps contaminated particles out of the surgical field. "There is no evidence that the 3M Bair Hugger warming system causes infections," a 3M spokeswoman said. "Our product is a safe and effective tool for warming patients before, during and after surgery. 3M is eager to proceed to trial this year to defend the integrity of the 3M Bair Hugger warming system." The plaintiffs have no direct evidence of a bacteria-laden particle being stirred up by the Bair Hugger and landing in anyone's surgical incision. Rather, the plaintiffs have presented experts who testified that this likely happens, and a computer model showing how it would happen. 3M asked Judge Ericksen to exclude the plaintiffs' experts from the case and then grant summary judgment because of a lack of expert opinions. A three-day hearing was held in October. Judge Ericksen on Dec. 13 declined to exclude any of the experts from the case or grant the 3M motion for summary judgment. Rather, she ruled that both sides are free to cross-examine each other's experts and present rebuttal testimony before a jury. In a 30-page ruling that resolved 16 different pending motions to exclude experts on both sides, Judge Ericksen quoted past court rulings that found that judges must exclude experts only when the expert opinions are so fundamentally unsupported that they can't offer assistance to the jury. [GN] 21ST CENTURY: Settles Class Action Over 2015 Data Breach -------------------------------------------------------- Evan Sweeney, writing for FierceHealthcare, reports that after filing for bankruptcy in May, 21st Century Oncology has agreed to pay a $2.3 million fine to the Department of Health and Human Services for a 2015 data breach that impacted more than 2.2 million patients. The national cancer care provider headquartered in Fort Myers, Florida, has also agreed to class action lawsuits filed in 2016, according to court documents. 21st Century Oncology, which operates 179 treatment centers across 17 states, first learned it had been attacked from the FBI in November 2015. A subsequent internal investigation revealed the attacker had accessed a database through a remote desktop protocol. According to a settlement approved by the United States Bankruptcy Court in the Southern District of New York, in addition to paying a fine to the Office for Civil Rights, 21st Century Oncology has agreed to comply with a corrective action plan that requires the company to appoint a compliance representative, conduct a risk analysis, revise its cybersecurity policies and develop internal breach reporting procedures. The bankruptcy court also approved a settlement to resolve class action lawsuits filed in Florida shortly after the company announced the breach. The settlement allows data breach claimants to pursue and recover reimbursement from the company's cybersecurity insurance policy through the Florida court. According to court documents, there is approximately $4.2 million remaining under the policy. The company did not respond to a request for comment. 21st Century Oncology filed for Chapter 11 bankruptcy citing changes to reimbursement and political uncertainty, as well as the cost of complying with EHR regulations. But the company was also reeling from $55 million in settlements tied to allegations that it billed government programs for medically unnecessary services. Another settlement, also approved by the New York bankruptcy court, will add to those costs. The provider agreed to pay $26 million to settle recently unsealed allegations from a former vice president that the company paid bonuses to physicians based on patient referrals. [GN] ABBOTT LABS: 9th Cir. Affirms Dismissal of Class Action ------------------------------------------------------- Tina Bellon, writing for Reuters, reports that a federal appeals court on Dec. 12 affirmed the dismissal of a proposed class action against Abbott Laboratories Inc. over its Ensure nutritional shakes, saying the plaintiff insufficiently alleged the company made false advertising claims. The case before the U.S. 9th Circuit Court of Appeals stems from a 2012 lawsuit brought by a California resident Michael Otto, who alleged Abbott negligently misrepresented the health benefits of its "Muscle Health" and "Clinical Strength" shakes, by touting their ability to "rebuild" lost muscle and strength in normal, healthy adults without exercise. [GN] ABC CORP: "Castillo" Claims Unpaid Overtime, Spread-of-Hours Pay ---------------------------------------------------------------- Felix Castillo, individually and on behalf all other employees similarly situated, Plaintiff, v. ABC Corp. and George Santas, Defendants, Case No. 17-cv-07396, (E.D.N.Y., December 19, 2017), seeks overtime compensation, unpaid spread-of-hours premium, compensation for failure to provide wage notice at the time of hiring and failure to provide paystubs, liquidated damages, prejudgment and post-judgment interest and attorney's fees and costs under the provisions of the Fair Labor Standards Act, New York Wage Theft Prevention Act and New York Labor Law. ABC Corp. operates as Cozy Diner & Cafe located at 1409 150th St. 3, Whitestone, NY 11357 where Mr. Castillo worked as a dishwasher and food prepper from August 1, 2013 to October 15, 2017. Plaintiff is represented by: Jian Hang, Esq. HANG & ASSOCIATES, PLLC 136-18 39th Ave., Suite #1003 Flushing, New York 11354 Telephone: (718) 353-8588 E-mail: jhang@hanglaw.com ACCOUNT CONTROL TECH: "Nolan" Action Disputes Collection Letter --------------------------------------------------------------- Sondra Nolan, individually and on behalf of all others similarly situated, Plaintiff, v. Account Control Technology, Inc. and John Does 1-25, Defendant, Case No. 17-cv-01184 (W.D. Tex., December 19, 2017), seeks damages and declaratory and injunctive relief pursuant to the Fair Debt Collections Practices Act. Nolan owed an obligation to Capella University who contracted Defendant to collect the alleged debt. Account Control allegedly sent a letter that implied that Ms. Nolan's balance may increase if not paid immediately despite her contest that the debt should not be accruing interest. [BN] Plaintiff is represented by: Yaakov Saks, Esq. RC LAW GROUP, PLLC 285 Passaic Street Hackensack, NJ 07601 Phone: (201) 282-6500 Fax: (201) 282-6501 ADVANCED NEUROCARE: Faces Class Action Over Unsolicited Fax Ads --------------------------------------------------------------- Noddy A. Fernandez, writing for Madison - St. Clair Record, reports that a chiropractic and wellness center has filed a class action lawsuit against a Wyoming corporation for allegedly wrongfully sending advertisements over fax machines. Dr. Richard L. Thalman, doing business as Thalman Chiropractic & Wellness Center, on behalf of all similarly situated, filed a complaint on Dec. 7 in the U.S. District Court for the Southern District of Illinois against Advanced Neurocare Systems, LLC and John Does 1-10, alleging violation of the Telephone Consumer Protection Act. According to the complaint, the plaintiff alleges that on Oct. 22, Dr. Thalman received an unsolicited fax from the defendants advertising its products. Dr. Thalman claims he and the class were deprived of paper and ink or toner, use of their fax machine and loss of valuable time they would have spent on something else while receiving the unsolicited advertisements. The plaintiff alleges the defendants made unlawful use of any telephone facsimile machine, computer or other device to send an unsolicited advertisement to a telephone facsimile machine. The plaintiff requests a trial by jury and seeks judgment for appropriate damages, injunction, costs of suit, and such other or further relief as the court deems just and proper. They are represented by Daniel A. Edelman, Cathleen M. Combs, James O. Latturner and Heather Kolbus of Edelman, Combs, Latturner & Goodwin, LLC in Chicago. U.S. District Court for the Southern District of Illinois case number 3:17-cv-01318-JPG-RJD [GN] ALL GREEN: "Hinnant" Seeks to Recover Minimum and Overtime Wages ---------------------------------------------------------------- JERRY THOMAS HINNANT III, and all others similarly situated under 29 U.S.C. 216(b) v. ALL GREEN USA LAWN & MAINTENANCE, INC., a Florida corporation, and PIER PAOLO ZANELLO, individually, Case No. 1:17-cv-24437-KMW (S.D. Fla., December 7, 2017), seeks to recover unpaid minimum and overtime wage compensation, as well as an additional amount as liquidated damages, costs and reasonable attorney's fees pursuant to the Fair Labor Standards Act. All Green is a Florida corporation, conducting business in Miami- Dade County, Florida. Pier Paolo Zanello is an officer/director of All Green. All Green operated as an organization, which purchased equipment and products manufactured outside the state of Florida; provided services to or sold, marketed, or handled goods and materials to customers throughout the United States; and provided services for goods sold and transported from across state lines.[BN] The Plaintiff is represented by: Monica Espino, Esq. ESPINO LAW 2250 SW 3 Avenue, 4th Floor Miami, FL 33129 Telephone: (305) 704-3172 Facsimile: (305) 722-7378 E-mail: me@espino-law.com AMERICAN TRANSIT: Removes MSP Recovery Class Suit to S.D. Fla. -------------------------------------------------------------- The putative class action lawsuit titled MSP RECOVERY CLAIMS, SERIES LLC, a Delaware entity v. AMERICAN TRANSIT INSURANCE COMPANY, a Foreign Profit Corporation, Case No. 17-019505 CA 01, was removed on December 8, 2017, from the 11th Judicial Circuit, in Miami-Dade County, Florida, to the U.S. District Court for the Southern District of Florida. The District Court Clerk assigned Case No. 1:17-cv-24450-KMM to the proceeding. The complaint, filed August 10, 2017, is a single cause of action, asserting a violation of a federal statute, the Medicare Secondary Payer Act. The Plaintiff alleges that it was assigned the right of "numerous" or "several" Medicare Advantage Organizations ("MAOs"), which are insurers that the United States Government pays to provide Medicare benefits to Medicare participants. The Plaintiff alleges that the MAOs paid for "medical items and/or services" of an unspecified type, for an unspecified number of Medicare beneficiaries who "suffered injuries related to an accident." The Plaintiff further alleges that American Transit was obligated to reimburse the MAOs for those payments because the MAOs were secondary payers under the Medicare Second Payer Act and, therefore, entitled to reimbursement from American Transit, which the Plaintiff alleges was a primary payer under the statute.[BN] The Plaintiff is represented by: John H. Ruiz, Esq. MSP RECOVERY LAW FIRM 5000 S.W. 75th Ave., Suite 400 Miami, FL 33155 Telephone: (305) 614-2222 E-mail: serve@msprecovery.com The Defendant is represented by: Christopher E. Knight, Esq. Helaine S. Goodner, Esq. Alexandra L. Tifford, Esq. FOWLER WHITE BURNETT, P.A. Brickell Arch, Fourteenth Floor 1395 Brickell Avenue Miami, FL 33131 Telephone: (305) 789-9200 Facsimile: (305) 789-9201 E-mail: cknight@fowler-white.com hgoodner@fowler-white.com atifford@fowler-white.com AQUA METALS: "Heath" Sues Over Share Drop from Failed Process ------------------------------------------------------------- Grant Heath, Individually and on behalf of all others similarly situated, Plaintiff, v. Aqua Metals, Inc., Stephen R. Clarke, Thomas Murphy and Mark Weinswig, Defendants, Case No. 17-cv- 07196, (N.D. Cal., December 19, 2017), seeks compensatory damages, including interest, reasonable costs and expenses incurred in this action, including counsel fees and expert fees and such other and further relief under the Securities Exchange Act of 1934. Aqua Metals is engaged in the business of recycling lead, focusing on its efforts on developing and testing their "AquaRefining" process. Plaintiff claims that Defendants failed to disclose that their breaking and separating process was not operating reliably or efficiently and were negatively impacting their output. On this news, its stock price fell $0.08 per share, or 2.1%, to close at $3.71 per share on November 10, 2017. The stock price continued to decline on the following trading days, falling $0.13 per share (3.5%) on November 13, 2017, and $0.58 per share (16.2%) on November 14, 2017, to close at $3.00 per share. Heath is an investor who acquired Aqua Metals securities between May 19, 2016, and November 9, 2017 Plaintiff is represented by: Rosemary M. Rivas, Esq. LEVI & KORSINSKY, LLP 44 Montgomery Street, Suite 650 San Francisco, CA 94104 Telephone: (415) 291-2420 Facsimile: (415) 484-1294 E-mail: rrivas@zlk.com AT&T MOBILITY: 9th Cir. Refuses to Revive Broadband Class Action ---------------------------------------------------------------- Wendy Davis, writing for MediaPost, reports that siding with AT&T, a federal appeals court has refused to revive a class- action alleging that the company falsely advertised "unlimited data" but throttled wireless users who exceeded a monthly cap. The ruling, issued on Dec. 11 by a three-judge panel of the 9th Circuit Court of Appeals, upheld a trial judge's decision to send the matter to arbitration. The battle dates to 2014, when three California residents alleged in a class-action complaint that AT&T duped people by selling "unlimited" mobile broadband plans, and then throttling users who hit monthly caps ranging from 3 GB to 5 GB. From 2011 until 2015, AT&T allegedly throttled more than 3.5 million customers with "unlimited" data plans. (The company recently revised its throttling practices, and now only slows down customers who exceed 22 GB in a month, and only when the network is congested.) U.S. District Court Judge Edward Chen in the Northern District of California sent the lawsuit to arbitration on the grounds that AT&T's terms of service required arbitration of disputes. The consumers then asked the 9th Circuit Court to restore the lawsuit. Among other arguments, they said the Federal Arbitration Act -- which they contend enables companies to include arbitration agreements in contracts -- unconstitutionally deprives people of their right to petition the courts. The 9th Circuit rejected that argument, stating that the Supreme Court has already ruled that arbitration agreements are enforceable. "Plaintiffs disagree with this case law, but we are bound by it," the judges wrote. The Federal Trade Commission also sued AT&T over the mobile broadband slowdowns. A three-judge panel of the 9th Circuit dismissed the FTC's lawsuit last year, ruling that the agency lacks authority to sue common carriers like AT&T. The court later agreed to reconsider that ruling, but has not yet issued a decision. [GN] ATLANTA HAWKS: Feb. 8 Settlement Opt-Out Deadline Set ----------------------------------------------------- AJ Williams, writing for Michigan Chronicle City, reports that if you made a purchase or other transaction with your credit card or debit card at any of the Philips Arena Hawks Shops at any time during the period August 1, 2014 to January 24, 2016, a proposed class action settlement may affect your rights and you may be entitled to benefits. What's This About and Who's Included? A class action lawsuit has been filed against Atlanta Hawks, L.P. ("Hawks"). The lawsuit alleges that Hawks willfully violated a federal law by printing credit card and debit card expiration dates on receipts provided to customers at the Philips Arena Hawks Shops. The law which Hawks is alleged to have violated is the Fair and Accurate Credit Transactions Act ("FACTA"). What is a Class Action? In a class action, one or more people called Class Representatives sue on behalf of a group of people (referred to as the Class) who have similar claims. One court resolves the issues for all of the people who are a part of the Class (referred to as Class members), except for those people who exclude themselves from the Class. Am I a Class Member? You are a Class member if you are an individual who made a purchase or other transaction at any of the Philips Arena Hawks Shops (located at One Philips Drive, Atlanta, Georgia 30303) with your personal credit card or debit card at any time during August 1, 2014 to January 24, 2016. What Is Being Sought By This Lawsuit? The lawsuit seeks to recover statutory damages in the range of $100-$1,000 for each electronically printed customer receipt provided to Class members on which receipt their credit card or debit card expiration date was printed. The lawsuit also seeks other remedies such as attorneys' fees and costs. The Court has not yet decided in favor of either the Class or Hawks. Why Am I Receiving This Notice? Judge Paige Reese Whitaker, who is presiding over this lawsuit (entitled Moskowitz, v. Atlanta Hawks, L.P., Fulton County Superior Court, State of Georgia, Case No. 2017CV288354), approved a proposed class settlement. If you are part of the Class, your legal rights will be affected by this settlement unless you decide to exclude yourself. The Court authorized this notice to inform Class members about this settlement and their options. Do I Have a Lawyer in the Case? The Court appointed Chant Yedalian of Chant & Company A Professional Law Corporation and Charles A. Gower Jr. and Shaun P. O'Hara -- shaun@cagower.com -- of Charles A. Gower PC to represent you and other Class members, as Class Counsel. You will not be charged for these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense. What Are My Options? If you are a Class member, you have the following options: (1) remain in the Class and submit a claim for up to a $100 payment; (2) do nothing and do not receive any payment from this settlement but remain in the Class; (3) exclude yourself from the Class and settlement; (4) remain in the Class and object to the settlement; (5) remain in the Class and ask the Court for permission to speak at the fairness hearing. If you remain in the Class, you will be bound by all of the Court's orders and judgment. Staying in the Class also means that you can't sue or be part of any other lawsuit against the Hawks and certain other persons or entities about the issues involved in this lawsuit and settlement. You will not be responsible for any out-of-pocket costs or attorneys' fees concerning this lawsuit if you stay in the Class. If, however, you would like to exclude yourself from this lawsuit and settlement, you must send a request for exclusion postmarked no later than February 8, 2018. For further information about this lawsuit and settlement and your options, you may visit the website or call the toll-free number listed below. Please call 1-888-233-2228 or visit www.HawksSettlement.com [GN] AUSTRALIA: Manus Island Detainees to Get $70MM Settlement Payout ---------------------------------------------------------------- 9News reports that about 1700 former Manus Island detainees will start receiving their share of a $70 million compensation settlement over coming days. Slater and Gordon principal lawyer Andrew Baker says the payments were set begin on Friday, Dec. 15, and the majority of the funds should be paid to members of the class action group by the end of 2017. "The uncertainty and looming relocation issues that have faced a number of group members required a faster distribution time frame than ever before faced by a class action of this kind and size," Mr Baker said on Dec. 14. The individuals stand to receive anything from a few thousand dollars to close to $100,000 under Australia's largest human rights class action settlement, with most of the compensation for false imprisonment following a PNG court ruling. Hundreds of men have been moved, some forcibly, from the now- closed offshore immigration detention centre to alternative accommodation sites in Papua New Guinea. New Zealand's offer to take 150 refugees from Manus Island has been repeatedly rejected by the Turnbull government over concerns it might provide a back door into Australia. The class action, launched by Slater and Gordon three years ago, was settled by the Australian government and centre operators in June without any admission of liability. Many of the group members are now spread around the world. Mr Baker said once the payments start to be issued on Dec. 15, the 1698 detainees who registered to participate in the $70 million settlement scheme should receive their funds in the following days and weeks. He said further batches of payments will be distributed over coming weeks, noting regulatory compliance for some kinds of international transactions takes additional time. [GN] BAR TACO: Faces Class Action Over Hepatitis A Outbreak ------------------------------------------------------ News12 reports that a Yonkers couple is suing Port Chester's Bartaco restaurant after they contracted hepatitis A during an outbreak in October. Joan and Michael Reda say they contracted the infection after eating at Bartaco on Sept. 10. "I think it's fair to say that any person has a right to expect that the food they are being served is safe to eat," says the couple's attorney, Paul Nunes. Mr. Nunes says Bartaco was negligent in delivering contaminated food. The illness resulted in debilitated systems and even caused Michael to miss months of work without pay. "The action is a focus on their pain and suffering, their medical expenses and the unknown prognosis for their health going forward," Mr. Nunes says. Westchester County health officials say the hepatitis A outbreak started with an infected Bartaco employee, prompting the Health Department to vaccinate more than 3,000 residents. The department confirmed there were seven cases of hepatitis A related to the outbreak, and one of them caused a scare at the Sleepy Hollow Country Club. Shortly after the outbreak, some of the affected Bartaco customers jointly filed a class-action lawsuit. Mr. Nunes is also one of the attorneys on the case. News 12 reached out to Bartaco for comment but has not yet received a response. [GN] BIG PHARMA: Randolph County Mulls Opioid Crisis Class Action ------------------------------------------------------------ Larry Penkava, writing for The Courier-Tribune, reports that Randolph County could be taking legal action against manufacturers and distributors of prescription opioids coming into the county. County Manager Hal Johnson said the Opioid Advisory Council decided at its Dec. 6 meeting to recommend to commissioners that the county take such action due to the opioid crisis. The number of overdose victims has increased to the point that Randolph's per capita figures are comparable to Mecklenburg, the largest- population county in the state. He said any legal actions taken would be based on damage done to local citizens, including the number of overdose deaths, responses to overdose victims by Emergency Services and other impacts. Mr. Johnson stressed that the action would not be part of a class action suit but would "look at damages just to Randolph County." He said he would talk in more detail about the possible legal action at the commissioners' Jan. 2 meeting, when the Opioid Advisory Council makes its recommendations. If the commissioners agree to the legal action, Mr. Johnson said, the county will employ a national firm that specializes in this type of lawsuit to "go after companies that distribute and manufacture opioids." Several counties in North Carolina have already begun the process to take similar legal action in an effort to recover public costs and stop the opioid epidemic. By the numbers Mr. Johnson had given an update on the opioid crisis during the Dec. 4 meeting of the Randolph commissioners in preparation for the commissioners' January agenda. In August, the commissioners sponsored the first-ever "County Leadership Forum on Opioid Abuse" -- one of the largest-attended forums at that time held in North Carolina. "This forum had a major impact in alerting our citizens to the public health crisis stemming from the flood of opioids pouring into our county, state and nation," Mr. Johnson said. "Unfortunately, in Randolph County, the impact continues to increase. Our Emergency Services operations have responded from January 2017 to Nov. 12, 2017, to over 349 calls related to opioid or opioid-related drug overdose calls in all our jurisdictions. This included 25 deaths by suspected drug overdose. The numbers in Randolph County are almost equal, on a per capita basis, to Charlotte/Mecklenburg County." According to information from Randolph County Emergency Services, the breakdowns by jurisdiction are as follows: * County, 168; * Archdale, 36; * Asheboro, 77; * Franklinville, 4. * Liberty, 3. * Ramseur, 8. * Randleman, 29. * Seagrove, 3. * Staley, 1. * Trinity, 20. The youngest was a 16-year-old overdosing on an illegal substance. The oldest was an 84-year-old accidentally overdosing on prescribed medication. Of the 146 patients, 86 were male and 60 were female. Expanding program "We will soon begin the new budget cycle and our county agencies are already struggling with the increased budget costs related to the additional pressure on our resources that has been created by this opioid crisis. This includes our Emergency Services, law enforcement, Social Services, public health and many other county government agencies," Johnson told the commissioners in the December meeting. He said the health department and Emergency Services are working together to expand the Community Health Paramedic initiative. "This is a program where we will be sending out a special team, consisting of paramedics and a health educator, to meet with addicts and their families. T he addicts will be referred to the team by our paramedics who respond to overdose calls. This is a great partnership between Emergency Services and Public Health which will begin in January 2018." [GN] BIG PHARMA: Williamson County to Join Opioid Crisis Class Action ---------------------------------------------------------------- Brooke Wanser, writing for Brentwood Home, reports that in a special session of the Williamson County Commission, commissioners voted 20-1 to join a mass tort lawsuit against pharmaceutical companies and wholesale drug distributors in the wake of the national opioid crisis. "Many of you know that the highly addictive substance that we often refer to as prescription opioids are ravishing our country and our state, and they're also in our county," Williamson County Mayor Rogers Anderson said. During a closed session, Sheriff Long gave a presentation to the commission about the effects of the opioid epidemic on the local community. The commission then considered the proposition to contract with Jeffrey D. Moseley of Buerger, Moseley & Carson PLC., a Franklin- based health care lawyer and Archie Lamb, also a healthcare attorney from Pensacola, Florida with Levin Papantonio. The resolution passed with a vote of 20 to 1, with District 11 Commissioner Brandon Ryan dissenting. Mr. Lamb is part of a larger group of counsel, representing cities like Louisville, Kentucky and Cincinnati, Ohio. Mr. Moseley said the case filing had been consolidated in the district for Cleveland, Ohio, and that Williamson County would join 180 other communities which have already joined the suit. Mr. Lamb said other counties in Tennessee planned to join the litigation, and their announcement was "imminent." The county will not pay attorney's fees unless a settlement is reached, Mr. Moseley said. "Prescription drug manufacturers and distributors oversupplied prescription drugs which led to the heroin and fentanyl epidemic," Mr. Lamb said. "The prescription drugs were the catalyst." Mr. Lamb said the suit asserts that drug companies knew, through statistics, that they were addicting a population to drugs. The three companies names in the lawsuit are AmerisourceBergen, Cardinal Health and McKesson Corporation. According to Mr. Lamb, these companies control 85 to 90 percent of drugs being used illegally. Under the Controlled Substances Act, companies are required to monitor, investigate and halt excessive shipments. "This lawsuit seeks to get compensations for cities and counties for the excessive burdens on law enforcement, on health care, on the communities at large," he said. Mr. Lamb said no dollar figure has been determined yet. He said he expected it would be an amount to compensate for the past five years and the effects the opioid epidemic will leave in the next decade. "We're seeking to address what is the cost to the community of having to deal with these people that have been addicted as a result of misconduct of the companies." Mr. Lamb said the lawsuit, a mass tort, was different from a class action lawsuit. "A class action is when a bunch of people have been hurt exactly the same way. A mass tort is when a bunch of different people have been hurt differently," he said. In turn, Williamson County will have a different claim from other communities. Sheriff Long said there were 17 drug overdoses in the county, and two deaths due to overdose. However, he couldn't say whether the overdoses were from opioids. "It's a danger that we're seeing all the time," Long said, describing the resources being diverted to deal with drug addictions and overdoses. "That's a cost to our citizens, and it would be great to be able to recoup some of that cost," he said. [GN] BIG PHARMA: Bloomington, Monroe County Join Opioid Class Action --------------------------------------------------------------- Jesse Naranjo, writing for Indiana Daily Student, reports that the City of Bloomington and Monroe County announced on Dec. 13 they would be joining a class action lawsuit against opioid manufacturers and distributors. The suit, in part, claims false marketing by manufacturers and a failure to stop suspicious shipments by distributors. Bloomington Mayor John Hamilton and the Monroe County Board of Commissioners were joined at the press conference at the Monroe County Courthouse by attorney Richard Shevitz, an IU alumnus and partner at Indianapolis law firm Cohen & Malad. "In the past the view of the medical profession toward opioids was the view that we all hold -- they're dangerous and they're addictive," Mr. Shevitz said. "That medical approach left a very narrow market for these opioids. They were used for acute pain after surgery, or end-of-life care for people who had been suffering from cancer. But opioids were not used for common back pain, workplace injuries, sports injuries and that kind of thing." Opioid manufacturers realized that they could expand their market by promoting its use for treatment toward more common and chronic ailments, Mr. Shevitz said. This has been a large contributor to the nation's opioid epidemic. "These potential defendants spread the false message that opioids were safe for chronic pain, and not addictive," Mr. Hamilton said. A large portion of those who struggle with addiction became addicted from actual prescriptions. The Drug Enforcement Administration reported that in 2014 the top two opioid pharmaceuticals in the U.S., hydrocodone and oxycodone, accounted for a total of 12.7 billion pills prescribed. "The lawsuit is just one tool," commissioner Amanda Barge said. "In fact, in 2017 the commissioners pledged to all of you that we would do everything we could do to reverse this epidemic. We're tired of hearing about people dying." The lawsuit represents cities and counties all over the state. In September, Scott County filed its own suit against manufacturers. More than 100 cities, states and other public entities have filed opioid-related lawsuits in 2017 alone. The lawsuit Bloomington and Monroe County announced its plans to join implicates at least seven manufacturers and three distributors of opioid pharmaceuticals. Manufacturers included as potential defendants include Purdue Pharma and Teva Pharmaceuticals. Purdue is the manufacturer of Oxycontin, a brand name for oxycodone. The company has faced legal action for the better part of the last two decades for its role in producing these powerful opioids. The distributors implicated in this suit are McKesson, AmerisourceBergen and Cardinal Health. Manufacturers and distributors have faced fines in the past, but Mr. Shevitz said on Dec. 13 that these fines went to the federal government, not to the communities that have been affected by the epidemic. County Commissioner Patrick Stoffers said at the press conference that while there was no "magic bullet" solution to this issue, he was glad those present were taking action to fight for their citizenry. "One party that's not here right now, it seems, is the state of Indiana," Mr. Stoffers said. "I'm not sure what they're waiting on." [GN] BIG PHARMA: Dale County Invited to Join Opioid Class Action ----------------------------------------------------------- Michelle Mann, writing for The Southeast Sun, reports that two unrelated lawsuits were discussed at the Dale County Commission work session Dec. 5. Whether to participate in a class action lawsuit against pharmaceutical companies and an update on an unrelated school tax lawsuit were issues brought to the table by Dale County Commission Attorney Henry Steagall. Mr. Steagall said that he has been contacted by law firms participating in a class action lawsuit against the nation's drug distributors for their role in the increasing opioid addiction and abuse problem nationwide, charging negligence and aggressive sales tactics. Mr. Stegall said that his recommendation, should the commission vote to join the class action suit, is to work with the Montgomery-based Beasley Allen Law Firm. "I can't speak to whether it's a good lawsuit," Mr. Steagall said. "It's just one of those things where you join the class action and if there is a settlement one day you get a part of it." Dale County Commission Chairman Mark Blankenship said he had "a real problem with" the lawsuit. "People have got to take some personal responsibility for their actions," Blankenship said. "Even in the lawsuit, it talks about the fact that the doctors are the Number 1 writer of opioid prescriptions so it looks like the doctors are partly to blame. "I mean, the pharmaceutical company is creating a drug that helps people," Blankenship added. "Where is it going to stop? Are we going to include the folks that sell beer because people have become alcoholics?" Dale County Commissioner Charles "Chic" Mr. Gary disagreed with Blankenship. "The substance is so additive," Mr. Gary said. "The pharmaceutical companies need to take a degree of responsibility for what they present to the Federal Drug Administration. (Pharmaceutical companies) are partially involved in this thing because what they are putting out there is a highly addictive prescription versus what we've had in the past." Mr. Gary said he recommended that the county join the class action lawsuit "because it's going to continue to get worse. I think the state is also going to be involved in it." Mr. Steagall said his initial thought had been whether the opioid abuse issue had caused damage to the county. "But we do have to pay medical bills for the prisoners in jail," he said. Mr. Steagall said that he is also going to present information about the class action lawsuit to the other municipalities that he represents. Blankenship said the issue will be an agenda item at the next voting meeting. Neighboring Coffee County has approved an agreement for such a lawsuit with the Pensacola, Fla.-based Levin, Papantonio, Thomas, Mitchell, Rafferty and Proctor law firm. Enterprise Attorney Dale Marsh had presented information about the class action suit to the Coffee commissioners and will serve as the local liaison. Mr. Steagall also provided a brief update on an unrelated civil lawsuit about school tax distribution. That dispute centers on a directive from the State Department of Education to the Dale County Revenue Commissioner Eleanor Outlaw to include Enterprise and Dothan City Schools in the distribution of Dale County school taxes. Some 600 students attending Enterprise City Schools live in Dale County and 29 students attending Dothan City Schools live in Dale County. Thirty-third Judicial Circuit Judge Kimberly Clarke issued a restraining order prohibiting Outlaw from sending checks to Enterprise and Dothan schools pending the outcome of the litigation. Mr. Steagall said that the Association of County Commissions of Alabama has provided an attorney to represent Outlaw. If the parties cannot come to a resolution before then, a court hearing is set for Jan. 10, 2018. The next meeting of the Dale County Commission was scheduled for Tuesday, Dec. 19, at the Dale County Government Building in Ozark. A work session begins at 10 a.m. and is followed immediately by a voting meeting. Both meetings are open to the public. [GN] BIG PHARMA: La Crosse County Weighing Options for Opioid Case ------------------------------------------------------------- Randy Erickson, writing for Lacrosse Tribune, reports that nearly 50 of Wisconsin's 72 counties have filed suit against 14 pharmaceutical companies and individuals deemed responsible for the opioid drug epidemic that has put a monumental strain on many aspects of public service provided by counties. La Crosse County, however, is not ready to jump on the bandwagon yet. Representatives of the Wisconsin Counties Association made a strong pitch at a convention in September for counties to take legal action, arguing it was a "moral imperative." A coalition of three law firms has offered to represent counties in litigation against "big pharma" with no cost up front and no cost if the lawsuit isn't successful. While 48 counties already have filed lawsuits in federal court, La Crosse County has been cautious about jumping in, investigating issues and options, and that investigation will continue for another month or two. At the Dec. 13 meeting of the La Crosse County Board's Executive Committee, the panel directed the county's legal department to continue looking into a number of still unanswered questions. "We are thoughtful and deliberative and thorough in our investigation and the work that we do month in and month out," said Board Chair Tara Johnson, who objected to criticism the county is "dithering on the sidelines" while other counties take action. "The fact that we are talking about this in our December cycle is because this is how we do things." All the counties surrounding La Crosse County have either filed lawsuits or approved filings in the past two months, with the Monroe County Board voting 13-2 to sue. Crawford County is pursuing litigation, but not as part of the WCA-endorsed effort. County Administrator Steve O'Malley noted, however, that all but one of the state's most populous counties still are exploring their options. The action urged by the Wisconsin Counties Association involves the three legal firms filing individually on behalf of counties -- these aren't class-action suits. Megan DeVore, county corporation counsel, said about 90 percent of the proposed 75- page civil complaint will be the same for all the counties filing suit. The lawsuits filed so far target Purdue Pharma, Johnson & Johnson, Endo Health Solutions Inc. and subsidiaries of the companies as well as three doctors in California and Utah. The suits seek compensatory and punitive damages and legal costs, alleging that the plaintiffs' "nefarious and deceptive" marketing campaigns precipitated the nation's opioid overdose epidemic. The lawsuit asserts that county health and law enforcement services "have been strained to the breaking point" because of the overdose crisis, which has claimed thousands of lives. In Wisconsin alone in 2016 there were 827 drug overdose deaths, according to state Attorney General Brad Schimel, who has made combating the opioid crisis one of his offices central missions. More than two dozen states, cities and counties have filed similar lawsuits against pharmaceutical companies, accusing them of making false claims about the safety of their drugs to make a profit. "Defendants' goal was simple: to dramatically increase sales by convincing doctors that it was safe and efficacious to prescribe opioids to treat not only the kind of severe and short- term pain associated with surgery or cancer, but also for a seemingly unlimited array of less severe, longer-term pain, such as back pain and arthritis to name but two examples," the lawsuit alleges. Drug companies knew their "products were addictive, subject to abuse, and not safe or efficacious for long term use," the lawsuit says, claims that the plaintiffs have denied. "We vigorously deny these allegations and look forward to the opportunity to present our defense," Purdue Pharma said in a statement. Endo Health Solutions said its "top priorities include patient safety and ensuring that patients with chronic pain have access to safe and effective therapeutic options" while preventing opioid abuse. Johnson & Johnson said allegations in similar lawsuits are "legally and factually unfounded." The WCA endorsed legal action might seem on the surface like an easy win-win for counties, with no upfront legal costs and no obligation to pay anything if the litigation fails. But the county would likely face a significant cost and burden on staff time during the "discovery" process, the pretrial investigatory period when both sides can pursue any testimony and documents that might be germane to the case. Mr. O'Malley noted that a few years ago the county was involved as the lead county in a class-action lawsuit against a guardrail manufacturer. That case was a much simpler matter than the opioid case would be, but even so it required a lot of staff time to comply with the defendant's discovery demands, including taking up two full days of Highway Commissioner Ron Chamberlain's time. In the opioid case, Ms. DeVore said, "the issue that requires the most thought is the compensatory damage. . . .You have to prove that there was a cost to the county and what that cost was." Unraveling the cost to the county of the opioid crisis would be no easy feat. There's no box to check on out-of-home child placements, for example, to indicate that they were related to parental abuse of prescription painkillers or use of heroin that was precipitated by a previous addition to doctor-prescribed opioids. Ms. DeVore noted the county also would have to spend a lot of time blacking out names and private information in documents because there is no implied waiver of confidentiality for county records as there would be in a case of an individual suing the county. "We can't just make a copy of all the records and hand them over," she said. "They're going to require a significant amount of redaction." Counties are jumping in with opioid-related lawsuits now because of lessons learned when states took on tobacco companies. Counties expected to get a commensurate share of the tobacco litigation settlement, but Ms. DeVore said that never happened. Mr. Schimel noted in a guest column in the Dec. 13 La Crosse Tribune that Wisconsin is part of a multi-state investigation into the major opioid manufacturers. More than 40 other states are involved in the probe, and Mr. Schimel noted that similar multi-state investigations have led to "substantial recoveries" from defendants. "Needless to say, if the coalition of states determines a lawsuit is necessary, I will pursue this strategy," he wrote. "However, filing a lawsuit now will likely lead to delay tactics and endless litigation that could last many years." Ideally, the county would file a lawsuit and be offered a pretrial settlement before having to go through the laborious discovery process. Whether the county could better achieve that objective through the WCA-endorsed legal action or with another law firm is one of a number of questions the county's legal department will be researching over the next month or two. Executive committee members' comments indicated they are on the same page as Johnson in terms of taking a cautious and thoughtful approach. "I don't think taking our time and doing it deliberately is detrimental," committee member Dave Holtze said. "I'm not sure we have to address it [today] because it's not going to be solved tomorrow." [GN] BIG PHARMA: Arkansas Municipalities File Opioid Class Action ------------------------------------------------------------ Scott Carroll, writing for KATV, reports that a coalition of Arkansas municipalities has filed a federal lawsuit against some of the world's biggest opioid manufacturers and distributors, accusing the companies of creating a public health crisis in Arkansas and across the country by deceptively marketing painkillers and persuading doctors to over-prescribe the drugs. The Arkansas Municipal League filed the suit on Dec. 12 in U.S. District Court for the Eastern District of Arkansas. The suit accuses the companies of "borrowing a page from Big Tobacco's playbook" by downplaying the risks of using opioids -- addiction, in particular -- and overstating the benefits of using the drugs. The 13 listed defendants are some the biggest companies in a global multi-billion dollar industry. They include Johnson & Johnson; Purdue Pharma; Janssen Pharmaceuticals, which is based in Belgium; Cardinal Health; McKesson Corporation, and Activis Pharma, which is based in Ireland. The 72-page lawsuit says the defendants "formed an opioid marketing enterprise in violation of Arkansas law for the purpose of illegally promoting the widespread use of opioids for chronic pain." It continues: "Arkansas is now awash in opioids and engulfed in a public health crisis the likes of which have never been seen before." "This epidemic, fueled by opioids lawfully prescribed by doctors, has resulted in a flood of prescription opioids available for illicit use or sale (the supply), and a population of patients physically and psychologically dependent on them (the demand)," the suit says. "And when those patients can no longer afford or legitimately obtain opioids, they often turn to the street to buy prescription opioids or even heroin." Arkansas has the second-highest opioid prescription rate in the country, according to the U.S. Centers for Disease Control and Prevention. The agency reported the rate to be 114.6 opioid prescriptions per 100 people. The national average is 66.5 prescriptions per 100 people. There were about 108 opioid-related deaths in Arkansas in 2017, according to the Arkansas Department of Health. A rise in opioid overdoses has led law enforcement agencies across the state, from Benton police to Arkansas State Police, to start carrying naloxone, a anti-overdose drug better known by its brand name, Narcan. The state has also taken action. Gov. Asa Hutchinson announced in September that pharmacists would no longer be required to write a prescription to dispense naloxone. The Arkansas Municipal League lawsuit is the latest in a wave of litigation that cities and counties have filed against drug- makers as opioid overdoses and deaths have surged across the country. Chicago, Seattle and Indianapolis are among the cities that have sued on grounds similar to the municipal league's lawsuit, according to reports. Hospitals have also sued the drug-makers. In 2017, a man filed a federal class-action lawsuit in Fayetteville against several of the drug-makers named in the municipal league lawsuit. More than 400 cities and towns including North Little Rock, Fayetteville, Fort Smith and Jacksonville are part of the Arkansas Municipal League. The group's lawsuit seeks punitive damages, and for drug-makers' "scheme of false representations and concealments of material fact regarding the use of opioids" to be declared illegal. Little Rock attorney Brent Moss, along with North Little Rock attorneys John Wilkerson and Mark Hayes, filed suit on the group's behalf. They had not returned a call seeking comment late on Dec. 13. Spokesmen for the drug companies named as defendants could not be immediately reached for comment. [GN] CABLE & WIRELESS: Won't Delist Shares of Class Action Plaintiffs ---------------------------------------------------------------- Eric Smith, writing for Nation News, reports that Cable & Wireless (C&W) has agreed not to apply to de-list from the Barbados Stock Exchange, nor to cancel the shares held by the minority shareholders named in a class action suit against the company, until the case is determined. Queen's Counsel Garth Patterson of Lex Caribbean, had filed an application on behalf of the minority shareholders on November 22, seeking interim injunctions to prevent Cable & Wireless (Barbados) Ltd from taking such action. At the centre of the group's concern was a feeling that they were being "forced" to sell their shares as a result of a merger of C&W and Cable & Wireless Barbados, which traded as Flow. This amalgamation first came to light in July when C&W Barbados announced it had received a proposal from Cable & Wireless West Indies to acquire all shares it did not already own by means of an amalgamation. On Dec. 8, Patterson, Bartlett Morgan and Taylor Laurayne of Lex Caribbean, and counsel for Cable & Wireless, Barry Gale QC, acting in association with Sir Henry Forde QC, Laura Harvey-Read and Wendy Straker, appeared in the chambers of acting High Court judge Alrick Scott in Supreme Court No. 9 for hearing of the application. [GN] CHENG DU: Didn't Pay Minimum & Overtime Wages, "Liu" Suit Says -------------------------------------------------------------- YI CHING LIU, JI YUAN LIN, TECK KIM EU, and YUNGCHANG HSU, on behalf of themselves and others similarly situated v. CHENG DU 23 INC d/b/a Cheng Du 23, FU RESTAURANT LLC d/b/a Tsing Tao Restaurant d/b/a Shanghai 46, YONGYI JIANG a/k/a Robert Jiang, CHING XING LIN a/k/a Kevin Lin, and CINDY LIN, Case No. 2:17-cv- 12867 (D.N.J., December 10, 2017), accuses the Defendants of willfully and intentionally committing widespread violations of the Fair Labor Standards Act and the New Jersey State Wage and Hour Law by engaging in a pattern and practice of failing to pay their employees, including the Plaintiffs, the statutory minimum wage and overtime compensation for all hours worked over 40 each workweek. Cheng Du 23 Inc., doing business as Cheng Du 23, is a domestic business corporation organized under the laws of the state of New Jersey with a principal address in Wayne, New Jersey. Fu Restaurant LLC, doing business as Tsing Tao Restaurant, doing business as Shanghai 46, is a domestic business corporation organized under the laws of the state of New Jersey with a principal address in Fairfield, New Jersey. The Individual Defendants are officers, directors, managers, and/or majority shareholders or owners of the Corporate Defendants. The Defendants operate, manage and/or own Chinese restaurants, where the Plaintiffs work.[BN] The Plaintiffs are represented by: Aaron Schweitzer, Esq. John Troy, Esq. TROY LAW, PLLC 41-25 Kissena Boulevard, Suite 119 Flushing, NY 11355 Telephone: (718) 762-1324 E-mail: johntroy@troypllc.com CHICAGO, IL: Lawyer Objects to Red Light Camera Settlement ---------------------------------------------------------- Jonathan Bilyk, writing for Cook County Record, reports that saying the deal "reeks of a collusive settlement" that will give millions to lawyers and next to nothing for law-abiding residents who dutifully paid their $100 fines, an attorney, who is pressing his own class action case seeking to "dismantle" Chicago's red light camera program, has filed an objection asking a Cook County judge to undue a settlement Chicago city officials have said they hope will allow City Hall to bring class action litigation over the red light camera program to a relatively inexpensive end. On Dec. 11, attorney Patrick Keating, of the firm of Roberts McGivney Zagotta LLC, of Chicago, filed a motion on behalf of a woman, identified as Maureen P. Sullivan, objecting to the city's proposed $38 million settlement designed to end one of the class action lawsuits faced by the city over its controversy-plagued red light camera traffic enforcement program. "Class Counsel are selling a 'settlement' that lets the City administer its claim submission and payment process, that provides class members no data to determine, or even estimate, how much they will receive for their $100 ticket payments," Keating wrote in the motion. "The deal is evidently structured so that that the crowed-about refund of half of monies paid will only apply if a small fraction of class members, faced with an opaque notice and a disinterested class action administrator, submit their claim forms in the short time allowed, upon a single notice and using a non postage-paid return envelope. "With checks that go void in 60 days." (sic) In July, the Chicago City Council voted to approve the settlement. The deal had been described as an "unprecedented" win for Chicago residents and others who were made to pay fines of $100 per violation after receiving tickets for being photographed by a red light camera posted at various intersections throughout the city. City officials also hailed the deal as a way to minimize the potential blow to taxpayers, compared to how much the city may have been made to pay, should the case have proceeded to trial and a judgment had been entered against the city. That settlement had itself followed a ruling in late 2016 from a Cook County judge, who had determined the case, brought by attorneys Myron Cherry and Jacie Zolna, of Myron Cherry & Associates, of Chicago, should be expanded to include a class of additional plaintiffs numbering conservatively in the hundreds of thousands who had received a red light camera ticket, but had received only one violation notice, while the city ordinance had required a second notice be sent before the city began assessing additional fines and fees for unpaid tickets. Under the terms of the deal, the city pledged to pay $15 million into a fund to be used to refund up to half of the cost of the fines paid by those who had received red light tickets. The city also pledged to not use the tickets when determining whose vehicles to "boot" or tow for unpaid fines; the city estimated this aspect of the settlement, held out as a debt forgiveness package, would be worth an additional $12 million. And the city also agreed to not contest the Cherry firm's plan to ask the court to pay attorney fees of nearly $12 million more. As the deal moves toward final approval, Mr. Keating filed an objection asking the court to undo or rework the deal to make it more friendly to those who paid their fines. In the motion, Mr. Keating assails virtually every aspect of the deal, saying, on one hand, the deal goes "way too far" in allowing the city to essentially escape the litigation on the cheap, paying 10 percent or less of damages a court could have ordered, while also effectively short-circuiting other class actions now pending in Illinois courts over the red light camera program. Mr. Keating is representing a group of plaintiffs challenging not just procedural errors, but the very legal basis underlying the red light camera program. That case was dismissed by a Cook County judge, but has been appealed. Mr. Keating noted the Cherry firm lawyers were aware of his other case, saying they specifically asked the court to not consolidate their case with his, yet executed their deal, knowing the settlement could be used by the city to attempt to negate any other class actions, as most class members in other cases would be covered by the terms of the settled case. On the other hand, however, Keating said the deal doesn't go far enough, as it could leave potential class members with far less than refunds worth even half of the fines they paid -- potentially as little as $7 each, depending on how many ticket recipients file claims for refunds. And even those payments could be sidestepped under an "opaque" claims process overseen by the city, who would issue refunds using checks allowed to expire 60 days after issuance. But at the same time, Keating said the deal gives the Cherry firm nearly $12 million, which he said amounts to 43 percent of the total settlement amount, when the "nearly worthless debt extinguishment" estimate is excluded from the calculation. "Maureen Sullivan submits that the payments to class members would need to be much higher to support such a fee, if such a payment can ever be justified with reference to the lodestar in this case," Mr. Keating wrote in the objection. Specifically, in the objection, Keating asks the court to order the settlement be revised "clarifying the language . . . that might affect or limit the rights of her and thousands of others to pursue their remedies" in the other class action case, and order the settlement be "modified to be more substantively and procedurally adequate and fairer to Class Members." [GN] CITIGROUP INC: Defendants Ask 2nd Cir. Review of "Leber" Ruling --------------------------------------------------------------- Defendants Michael Carpenter, Paul Collins, James Costabile, Virgil Cumming, David Dodillet, Doe Defendants, Robert Grogan, William Heyman, Robin Leopold, Alan MacDonald, Michael Murray, Christine Simpson, Richard Tazik, The Benefit Plans Investment Committee of Citigroup, Inc., The Citigroup 401(K) Plan Investment Committee, Todd Thomson, Timothy Tucker, David Tyson, Ronald A. Walter, Guy Whittaker, Donald Young, James Zelter and Bruce Zimmerman filed an appeal from a court ruling in the lawsuit styled Leber, et al. v. CitiGroup, Inc., et al., Case No. 07-cv-9329, in the U.S. District Court for the Southern District of New York (New York City). As previously reported in the Class Action Reporter on Dec. 20, 2017, the District Court issued an Opinion and Order granting the Plaintiff's Motion for Class Certification. The action involves allegations of self-dealing and imprudent fiduciary conduct related to the administration of Citigroup's 401(k) Plan. The Plan is a defined contribution plan, within the meaning of 29 U.S.C. Section 1002(34). The three named plaintiffs -- Marya J. Leber, Sara L. Kennedy, and Sherri M. Harris -- are all participants in the 401(k) Plan, and claim that the committees responsible for overseeing the Plan during the putative class period, along with those committees' individual members and officers, breached their fiduciary duties of prudence and loyalty by persistently favoring certain investment options despite the fact that those options had higher management fees than comparable alternatives. In their Fourth Amended Complaint, plaintiffs bring three counts, reflecting three different ways in which defendants are alleged to have improperly favored Citigroup's proprietary funds and thereby breached their duties of prudence and loyalty, in violation of the fiduciary standards outlined in sections 404(a) and 405 of ERISA. The appellate case is captioned as Leber, et al. v. CitiGroup, Inc., et al., Case No. 17-3978, in the United States Court of Appeals for the Second Circuit.[BN] Plaintiffs-Respondents Marya J. Leber, and all others similarly situated, Sara L. Kennedy, Leslie Highsmith and Sherri M. Harris are represented by: James A. Moore, Esq. MCTIGUE LAW LLP 4530 Wisconsin Avenue, NW Washington, DC 20016 Telephone: (202) 364-6900 Facsimile: (202) 364-9960 E-mail: jmoore@mctiguelaw.com Defendants-Petitioners The Citigroup 401(K) Plan Investment Committee, James Costabile, Robert Grogan, Robin Leopold, Doe Defendants, 1-20, Christine Simpson, Richard Tazik, Timothy Tucker, Donald Young, The Benefit Plans Investment Committee of Citigroup, Inc., Michael Carpenter, Paul Collins, Virgil Cumming, David Dodillet, William Heyman, Alan MacDonald, Michael Murray, Todd Thomson, David Tyson, Guy Whittaker, James Zelter, Bruce Zimmerman and Ronald A. Walter are represented by: Lewis R. Clayton, Esq. PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019 Telephone: (212) 373-3215 E-mail: lclayton@paulweiss.com CITIZENS INC: Robbins Arroyo Investigates Fiduciary Duty Breach --------------------------------------------------------------- Shareholder rights law firm Robbins Arroyo LLP is investigating whether certain officers and directors of Citizens, Inc. (NYSE: CIA) breached their fiduciary duties to shareholders. Citizens, through its subsidiaries, provides life insurance products in the United States and internationally. Citizens Accused of Engaging in Ponzi Stock Scheme A securities class action complaint has been filed against Citizens. The complaint is brought on behalf of all purchasers of Citizens securities between March 11, 2015 and April 27, 2017, for alleged violations of the Securities Exchange Act of 1934 by Citizens' officers and directors. According to the complaint, Citizens uses deceptive marketing practices to lure clients into purchasing insurance policies. While Citizens' brokers masque themselves as financial advisors with international licenses, they permit Citizens' sales associates to input inaccurate stock projection information into marketing collateral distributed to their clients. Moreover, the multilevel marketing sales force has continuously marketed the policies as tax-exempt even after the company officially recognized that the majority of its policies are not tax-exempt. As a result, Citizens' stock price was artificially inflated until March 8, 2017, when it was reported that the company was under investigation by the U.S. Securities and Exchange Commission and Internal Revenue Service for its unlawful business practices. Citizens 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 is a nationally recognized leader in shareholder rights law. The firm represents individual and institutional investors in shareholder derivative and securities class action lawsuits, and has helped its clients realize more than $1 billion of value for themselves and the companies in which they have invested. [GN] CITY OF REDONDO BEACH: "Arnold" Action Seeks Unpaid Overtime Pay ---------------------------------------------------------------- David Arnold, Matthew Alston, John J. Anderson, John Banach, John Bruce, Christopher Bushman, Robert Carlborg, Mark Chafe, David M. Christian, Yesenia Contreras, Ryan Crespin, Clinton Daniel, Delvin Delery, Michael A. Diehr, Vincent Dileva, Justin Drury, Joseph Fonteno, Erik Frame, Salvador Garcia, Catherine Garcia, Daryn Glenn, Michael J. Green, Daniel Haley, Latoya Harris, Ryan Harrison, Wesley Hatfield, Frank Hernandez, Todd Heywood, Edward Jackson, Corey W. King, Patrick Knox, Richard A. Kochheim, Andrew Lewis, Brian Long, Brett Manis, Robert S. Martin, Michael Martinez, Timothy McFarland, Jonathan D. Naylor, Blake Nimmons, Aaron Plugge, Charles T. Prestia, Bryan Ridenour, Victor Salazar, Jason Sapien, Fabian Saucedo, Michael Snakenborg, Christopher Sosenko, Stephen M. Sprengel, Joshua Spry, Terrence Stevens, Michael Strosnider, William J. Turner, Keith Turner, Lou Velez, Brian Weiss, Wayne Windman, and Jenna Wolfinger, and other similarly-situated individuals, Plaintiffs, v. City of Redondo Beach, Defendants, Case No. 17-cv-09097 (C.D. Cal., Dec. 19, 2017), seeks to recover overtime compensation, liquidated damages, costs and reasonable attorney's fees under the provisions of Fair Labor Standards Act. City of Redondo Beach is a political subdivision of the State of California of which Plaintiffs are City employees. Plaintiffs are represented by: Michael A. McGill, Esq. ADAMS, FERRONE & FERRONE 4333 Park Terrace Drive, Suite 200 Westlake Village, CA 91361 Telephone: (805) 373-5900 Facsimile: (818) 874-1382 E-mail: mmcgill@adamsferrone.com COMBINED INSURANCE: Dolmage Appeals Ruling to Seventh Circuit ------------------------------------------------------------- Plaintiff Anne Dolmage filed an appeal from a court ruling in her lawsuit, styled Anne Dolmage v. Combined Insurance Company of America, Case No. 1:14-cv-03809, in the U.S. District Court for the Northern District of Illinois, Eastern Division. The appellate case is captioned as Anne Dolmage v. Combined Insurance Company of America, Case No. 17-3481, in the U.S. Court of Appeals for the Seventh Circuit. The briefing schedule in the Appellate Case states that appellant's brief is due on or before January 16, 2018, for Anne Dolmage. [BN] Plaintiff-Appellant ANNE DOLMAGE, individually and on behalf of all others similarly situated, is represented by: Ben Barnow, Esq. BARNOW & ASSOCIATES, P.C. One N. LaSalle Street Chicago, IL 60602-0000 Telephone: (312) 621-2000 Facsimile: (312) 641-5504 E-mail: b.barnow@barnowlaw.com Defendant-Appellee COMBINED INSURANCE COMPANY OF AMERICA, an Illinois Corporation, is represented by: Francis A. Citera, Esq. Brett Doran, Esq. GREENBERG TRAURIG, LLP 77 W. Wacker Drive Chicago, IL 60601-0000 Telephone: (312) 456-8400 Facsimile: (312) 456-8435 E-mail: citeraf@gtlaw.com doranb@gtlaw.com COOK COUNTY, IL: Faces Another Class Action Over "Pop Tax" ---------------------------------------------------------- Jonathan Bilyk, writing for Cook County Record, reports that on the day the controversial Cook County "pop tax" expired, one of the law firms behind the rash of class action lawsuits against area retailers and restaurants over the collection of the tax brought perhaps one final class action claim against an area retailer, saying a man was charged a few cents too much for club sodas he purchased at two local Jewel supermarkets. On Dec. 1, lawyers with the Zimmerman Law Offices P.C., of Chicago, filed suit in Cook County Circuit Court on behalf of named plaintiff Martin Vera against Albertsons Companies, parent company of local supermarket chain Jewel-Osco. The lawsuit asserts Vera purchased three bottles of Jarritos- brand club soda at two Cook County Jewel stores in November, yet the store added the Cook County sweetened beverage tax to the purchases, even though club soda contains no sugar or other added sweeteners, meaning the beverages should have been excluded from the tax. In all, the lawsuit alleges the store's decision to charge the tax cost Vera an additional 50 cents per bottle of club soda. The lawsuit further alleges Jewel likely did this to many other customers, and asks the court to expand the action to include anyone who bought any unsweetened beverage at any of Jewel-Osco's 54 stores in Cook County from Aug. 1 to Dec. 1 and was charged the sweetened beverage tax. The lawsuit comes as the latest -- and perhaps the last -- such class action filed against retailers operating in the county, alleging improper collection of the county's controversy-plagued, and now repealed sweetened beverage tax. The Cook County Board, at the urging of Cook County Board President Toni Preckwinkle, enacted the tax in late 2016, saying they expected the tax would bring in about $200 million per year to help the county maintain services while also helping to reduce consumption of soda pop and other beverages with added sweeteners, which public health officials have linked to obesity and other negative public health consequences. However, from the moment the tax was enacted, it was dogged by controversy, and in the days before the tax was scheduled to take effect on July 1, a group of retailers sued to challenge the tax as unwieldy and unconstitutional. A Cook County judge, however, while delaying the imposition of the tax by one month, rejected that legal challenge. In his dismissal, the judge, Daniel Kubasiak, also brushed aside concerns raised by the retailers over the risk of lawsuits, calling the retailers' worries "merely speculation." But within days of the tax taking effect, the first such lawsuit was filed, followed quickly by many others in ensuing weeks, against such retailers and restaurants as Walgreens, 7-Eleven, Subway, McDonald's, Circle K, KFC and even the Art Institute of Chicago. All of the lawsuits alleged those selling both sweetened and unsweetened beverages had at some point charged customers a few cents too much for an unsweetened beverage, allegedly in violation of the county ordinance and state consumer fraud laws. The lawsuits typically asked the courts to award compensatory damages and attorney fees. The Zimmerman firm brought several of the lawsuits, including against 7-Eleven, Subway, PepsiCo and KFC. However, as the lawsuits began to pile up, public anger at the tax built, and retailers complained their beverage sales had plunged by as much as half, with much of the business merely going to stores in surrounding Lake, Kane and Will counties and across the stateline into Indiana, where the tax wasn't charged. Under such mounting pressure, the county board voted in October to repeal the tax, effective Dec. 1. Vera then made the purchases at the local Jewel stores at the center of his Dec. 1 lawsuit, even as county officials wound down collection of the tax. And in October, plaintiffs began quickly and quietly to settle some of those pending lawsuits. The Zimmerman firm, for instance, settled the lawsuits against PepsiCo and 7-Eleven in October, within days of the pop tax repeal vote, according to court records. The firm's lawsuit against Subway is currently being contested by the company in Cook County court, after a federal judge rejected Subway's bid to take the lawsuit to federal court. In court filings in that case, Subway's parent company, Doctor's Associates, blasted the "opportunistic nature" of the lawsuit. And the case against KFC remains pending, according to Cook County court records. Cook County court records also indicate the Zimmerman firm still has a separate class action, which it filed in August, pending against Albertsons and Jewel on behalf of named plaintiff Antonia Morales. [GN] EDISON INT'L: Judge Says HR Reps Mishandled 401(k) Plans -------------------------------------------------------- Brian Menickella, writing for Forbes, reports that the vast majority of HR representatives likely have no idea of the significant liability they are exposed to in their duties regarding their company's 401(k). HR representatives are responsible for a number of duties, but one important task they should never overlook is the management of 401(k) plans. Although it might seem like a secondary role, it is their fiduciary duty to ensure that decisions regarding retirement plans are always made in the employees' best interests. Turning a blind eye or missing a small detail may result in significant legal consequences and personal liability -- potentially exposing their personal assets. One such example is the case Tibble v. Edison International. Through a series of unlikely events, this case eventually made its way to the U.S. Supreme Court, where the VP of human resources was found liable of a fiduciary breach. What went wrong in Tibble v. Edison? Former employees of Midwest Generation LLC, a subsidiary of Southern California Edison Company (SCE), filed a lawsuit against SCE, parent company Edison International, Edison International Trust Investment Committee, SCE Benefits Committee, SCE's vice president of human resources and others involved in overseeing the funds, alleging these parties breached their fiduciary duties. Led by former employee Glenn Tibble, the plaintiffs claimed the management of their 401(k) plans were mishandled, costing them more than $7 million. They pursued recourse under the Employee Retirement Income Security Act (ERISA) in a class action lawsuit. In the initial lawsuit, plaintiffs alleged plan administrators bought retail shares in March 1999 instead of institutional shares, which would have incurred lower fees. They also claimed SCE used monies from the retail shares to offset plan management costs charged by its record-keeper, Hewitt Associates, LLC. The district court ruled three of the funds invested after 2001 should have been purchased as institutional shares. However, it also ruled some of the plaintiffs' claims were barred by the statute of limitations, ERISA Section 1113. The plaintiffs appealed, and the statute of limitations ruling was heard by the U.S. Supreme Court. The high court determined the district court had erred in applying the statute of limitations because it did not consider the nature of the fiduciary duty that should have been followed. The case was remanded back to the district court . After a decade of legal activity, on August 16, 2017, the court ultimately found the HR vice president and plan administrators liable. Plaintiffs were awarded losses plus entitlement to additional damages, along with attorney fees. ERISA cases a growing trend The number of ERISA lawsuits has been growing over the past several years. One big case relating to neglecting fiduciary duties was recently initiated by employees of GE. They filed a lawsuit alleging GE violated ERISA and managed employees' 401(k) plan for its own benefit at the expense of the employees, costing them $300 million in potential gains. That is only one of the latest in a series of lawsuits relating to administrative mismanagement of retirement plans. Companies recently brought to court for ERISA violations and/or mismanagement of 401(k) funds include Nordstrom Inc., Lockheed Martin, Blue Cross Blue Shield, and several universities and colleges. In November, Bloomberg reported that these cases do not seem to be slowing down. What is the solution? What can organizations do to seek a solution to the problems associated with mismanagement of fiduciary duties? Hiring an actual "Investment Fiduciary" either ERISA 3(38) or ERISA 3(21) Fiduciary offers significant opportunities for Plan sponsors and HR professionals who are playing active roles in the management of their 401k plan to manage risk. Additional opportunities to address risk can be found in the proper creation of investment committees. A properly established committee can seek to prevent these disasters and also address the risk to some of the committee members from significant personal liability. An investment committee would be responsible for staying up-to- date on the law, industry news, responsibilities under ERISA and any other relevant information related to ERISA and other legal responsibilities. Other activities may include: -- Drafting a charter stating the purpose of committee and detailing how members are selected and what roles they play -- Establishing formal protocol for management of the plan's investment strategy -- Determining fiduciary and non-fiduciary members -- Creating an investment policy statement Members should be well-versed in the investment plan and strategy and work towards ensuring the plan is responsibly managed and adapted if necessary as legal precedents are set. While investment committees are not required under ERISA, they are a good risk management mechanism and enable plan sponsors to focus on the important issues that impact plan participants. Committees aim to ensure due diligence and fiduciary duties are always appropriately met and help avoid the types of decisions that lead to costly lawsuits. [GN] ELECTRICITY MAINE: Zurich Doesn't Want to Cover Litigation Claims ----------------------------------------------------------------- Jeff Sistrunk, writing for Law360, reports that Zurich American Insurance Co. on Dec. 8 urged a Maine federal judge to hold that it doesn't have to defend electricity supplier Electricity Maine LLC in a proposed class action alleging the company overbilled customers by about $35 million, contending that the underlying complaint doesn't allege any potentially covered claims. [GN] EQUITY RESIDENTIAL: Judge Allows Tenants to Pursue Class Action --------------------------------------------------------------- Aaron Glantz, writing for Reveal, reports that a federal district court judge in Oakland, California, has given the go-ahead for tenants of one of the largest landlords in America to pursue a class-action lawsuit alleging unlawful and excessive fees to renters who are late on payments. Notices to current and former tenants of Equity Residential's properties went out after U.S. District Court Judge Jeffrey S. White certified the class action, which argues that the company's practice of charging a fee of either $50 or 5 percent of the total delinquent rent when tenants are only one day late violates California anti-profiteering statutes. The company, founded and headed by billionaire Sam Zell, is the third largest private owner of apartments in the United States, with 78,000 units across six states, according to the National Multifamily Housing Council. Company filings show California is its largest market, with more than 36,000 units in 150 properties in Southern California and the San Francisco Bay Area. The tenants also argue that the company's practice of "stacking late fees" by charging an additional penalty when rent is current but an old late fee is outstanding is illegal under California law. In court papers, company attorneys had argued that the fees were legal and that the class action should not be certified because "individual issues predominate." A spokesman for Equity Residential did not return multiple calls seeking comment for this story. Among the plaintiffs is child care worker Javanni Munguia-Brown, who was raising three children in one of the company's East Palo Alto apartments. She said she paid her rent and all fees one day early in March 2014. However, the company assessed an automatic $50 late fee because she had a balance of $200 in previous late fees and $122 in city administrative fees and water and sewer charges. "They're making a profit off people who can least afford it, folks who are struggling to pay rent working in Silicon Valley in food and landscaping," said Jason Tarricone, directing attorney for the housing program at Community Legal Services in East Palo Alto, which brought the case together with two California law firms that specialize in class-action lawsuits. "It's worse than payday lending," he said. "We don't think of these late fees as usurious interest but that's what it is. And people will pay it because they don't want to lose their housing." Not all of Equity Residential properties are in poor neighborhoods. This reporter lived in one company's Palo Alto apartment complexes, the Southwood Apartments, while completing a journalism fellowship at Stanford University. The company also owns oceanside apartments in Santa Monica, a luxury tower on Park Avenue South in Manhattan and a complex on Massachusetts Avenue, a few blocks from the Capitol in Washington, D.C. Equity Residential is the latest large, corporate landlord to come under scrutiny over what critics say are exorbitant fees. In June, Reveal from The Center for Investigative Reporting exposed conditions at Colony Starwood Homes, a 35,000-house rental empire founded by Tom Barrack, one of President Donald Trump's oldest and closest friends. Among the tenants featured in the story was Evelyn Knights, a Los Angeles resident who received a three-day eviction notice over a $49.33 late fee. The company's stock filing showed it made $14 million in fees in 2016 and took in another $12 million tenant clawbacks, including seized security deposits. Mr. Barrack quit the company the day after Reveal's report and the firm rebranded itself as Starwood Waypoint. In November, ABC News confronted company chief operating officer Charles Young about the fees. "It's part of the business," Young said. [GN] ETHICON: Fails to Fully Inform Doctors of Vaginal Mesh Risks ------------------------------------------------------------ Harriet Marsden, writing for Independent, reports that a global medical company failed to fully inform doctors of the risks of vaginal mesh implants, a BBC Panorama investigation is set to reveal. The programme, which was set to air on Dec. 11, documents the conflicts of interest, improper trialling and weak regulatory system behind the vaginal mesh scandal, as reported in The Independent in 2017. The Panorama investigation reveals that Ethicon, which markets mesh in the UK under brand name Gynecare TVT, did not update doctors with the extent of risks for its leading mesh device. It also discovered that the product was only tested in 31 women - - and on sheep -- before being used in patients. It comes just over a week after the death of Chrissy Brajcic, the first woman reported to have died from mesh complications, and the publication of a study on vaginal mesh in BMJ open revealing the failures of the regulatory system and "weak evidence" used to support device approval. The transvaginal mesh procedure, which involves implanting a polypropylene netted device into the vaginal wall, is performed on at least 10,000 women in the UK every year to treat prolapse and incontinence. However, mounting evidence of higher risks, severe side effects and insufficient trialling, as well as allegations of corruption and whitewashing, have culminated in what's been branded "the biggest health scandal since thalidomide". Hundreds of thousands of women in the UK, US and Australia are currently involved in lawsuits against mesh producers; at least 800 in the UK are suing the NHS. Ethicon is a wholly-owned subsidiary of multibillion-dollar Johnson and Johnson, one of the main producers of mesh implants and currently the subject of multiple class-action lawsuits. The company produces "Instructions for Use" (IFU) leaflets to accompany mesh products, designed to explain to doctors how to insert the implants. They also explain the "adverse reactions", or risks, associated with surgery, to help doctors explain these to patients. In 2009, Panorama will reveal, an associate medical director at Ethicon warned, that the statements about side effects in the IFU leaflets were not sufficient, as side effects were described as "transitory". However, thousands of women have suffered permanent or chronic complications, sometimes manifesting years after the implant. In an email in January 2009, the associate medical director suggested that the wording be changed for three Ethicon Gynecare TVT mesh implants, explaining: "From what I see each day, these patient experiences are not 'transitory' at all." But Ethicon admits it did not update the IFUs at the time. The company's latest IFUs, updated in 2015, do make clear some effects may be permanent, but use incomplete and insufficient risk assessment data to do so. Dr Wael Agur, a consultant urogynaecologist, told Panorama: "It's so important for me as a surgeon to understand the full risks of a medical device I'm about to implant . . . and my first resource would be the IFU. "I would expect the manufacturer to have a comprehensive list of the adverse events and the risks within the instructions for use so I fully understand these and communicate them." The investigation also revealed that Ethicon's TVT-Secur implant -- sold worldwide, and designed to be the company's safest mesh product -- was launched in 2006 after only being tested on 31 women for five weeks, and some sheep. The product was withdrawn from the market in 2012. Ella Ebaugh, from Pennsylvania, was fitted with a TVT-Secur device in May 2007 to help cure mild incontinence. It was one of two mesh implants she had fitted; she later had surgery to try to remove them. She suffered chronic pain that left her needing a walking stick and mobility scooter. She sued Ethicon, and in September 2017 was awarded $57m (GBP42.6 million) by the court -- which Ethicon is currently appealing. In her first UK interview, she told Panorama: "If I was told that I would need a wheelchair to get around, if I was told that I was going to live with permanent disabilities for the rest of my life, I wouldn't have had a surgery for a simple stress urinary incontinence problem." She added: "The pain that I have I will have to live with for the rest of my life. There's nothing they can do to help me." Figures compiled for Panorama by NHS Digital and NHS Wales show that the NHS has implanted more than 130,000 mesh devices in the last decade. In that same period (2006-7 to 2016-17), there have been 6,000 procedures to remove or partially remove the implants. However, the real number could be much higher: these figures only relate to the NHS in England and Wales, and do not include women who have paid to have the device removed privately, or who received "partial snips" to stop the mesh cutting through the vagina. Doreen Day, aged 70, for example, had a TVT implanted in 2007 to treat pelvic organ prolapse. The surgery left her in acute pain, needing morphine and painkillers to function: "I was in sheer agony, as if I had a cheese grater inside me." In 2015 she travelled to Los Angeles to have her mesh partially removed at a cost of ú22,000, which she paid for out of her personal savings. She is still suffering from pelvic nerve damage. Mesh implants for prolapse have led to higher complication rates than mesh implants for incontinence. A spokesperson for Ethicon said: "While we empathise with those who have experienced complications, the vast majority of women with pelvic mesh see an improvement in their day-to-day lives. "All surgical pelvic floor procedures -- with and without mesh -- come with the risk of developing complications." Dr Linda Cardozo, from the Royal College of Obstetricians and Gynaecologists, echoed this, telling Panorama: "You cannot operate without complications occurring in a small minority of cases. You are never aware of complications that may occur years later, and that doesn't just occur with these tapes and meshes." She has previously described a ban as a "retrograde step", arguing: "If mesh is banned, there will be no more clinical trials. We will go back to how we were a century ago when we couldn't offer women a range of options." But Kath Sansom, founder of prominent anti-TVM campaign group Sling the Mesh, claims that Dr Cardozo speaks with "a heavy bias". She commented to The Independent: "It is a shame that Linda Cardozo has spoken out on this issue to Panorama without declaring her ties to industry." Dr Cardozo has previously admitted her ties to Ethicon, and also accepts research monies from Pfizer. In a 2012 study assessing colposuspensions for women with stress incontinence, which she co-authored, the "Conflicts of interests" section lists Dr Cardazo as a consultant for AdvaMed, Astellas, Ethicon and Pfizer, as well as a speaker honorarium and trial participant for Pfizer. According to Ms Sansom: "Dr Cardozo should have made it very clear that she is a consultant to four industry giants, and a consultant to a UK company that promotes pharmaceutical products and medical devices to the NHS. That means she speaks with a heavy bias." The MHRA, the UK medical devices regulator, told Panorama it recognises that some women develop serious complications, but maintains that many women gain benefit from these surgical procedures. It said: "We continue to work closely with NHS England, Nice and professional bodies, and we are all committed to helping address the serious concerns raised by women who have experienced complications. "Currently, from a regulatory perspective, these devices are acceptably safe when used as intended and as part of an appropriate treatment pathway." In October, a cross-party group took a debate to Parliament calling for a suspension pending full inquiry into the scandal, which the Government refused. Later this month, England's National Institute for Health and Care Excellence (Nice) are expected to recommend banning the mesh devices. [GN] FACEBOOK INC: Gullen Moves for Certification of Non-User Class -------------------------------------------------------------- The plaintiff in the lawsuit styled FREDERICK WILLIAM GULLEN, individually and on behalf of all others similarly situated v. FACEBOOK, INC., Case No. 3:16-cv-00937-JD (N.D. Cal.), moves for certification of this class: All individuals who have never subscribed to Facebook.com or any other Facebook, Inc. service and, while residing in Illinois, whose face was depicted in a photograph uploaded to Facebook.com from a device assigned an Illinois-based internet protocol address at any point in time between August 31, 2010 and the present (the "Non-User Class"). In his complaint, Mr. Gullen alleges individual and class claims against Facebook for collecting his and millions of other non- users' "scans of face geometry" -- personally identifying biometric data extracted from user-uploaded photographs -- in willful violation of Illinois' Biometric Information Privacy Act. Mr. Gullen also seeks his appointment as class representative and the appointment of Carey Rodriguez Milian Gonya, LLP, as class counsel. A copy of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=n11g7KF5 The Plaintiff is represented by: Frank S. Hedin, Esq. David P. Milian, Esq. CAREY RODRIGUEZ MILIAN GONYA, LLP 1395 Brickell Avenue, Suite 700 Miami, FL 33131 Telephone: (305) 372-7474 Facsimile: (305) 372-7475 E-mail: fhedin@careyrodriguez.com dmilian@careyrodriguez.com - and - Francis A. Bottini, Jr., Esq. Albert Y. Chang, Esq. Yury A. Kolesnikov, Esq. BOTTINI & BOTTINI, INC. 7817 Ivanhoe Avenue, Suite 102 La Jolla, CA 92037 Telephone: (858) 914-2001 Facsimile: (858) 914-2002 E-mail: fbottini@bottinilaw.com achang@bottinilaw.com ykolesnikov@bottinilaw.com FELIDIA RESTAURANT: Jara Seeks to Recover Minimum and OT Wages -------------------------------------------------------------- HECTOR JARA, on behalf of himself, FLSA Collective Plaintiffs and the Class v. FELIDIA RESTAURANT, INC., POLA RESTAURANT INC. d/b/a BECCO, IL POSTO LLC d/b/a DEL POSTO, PULPO LLC d/b/a ESCA, MARIO BATALI, JOSEPH BASTIANICH, and LIDIA BASTIANICH, Case No. 1:17- cv-09622 (S.D.N.Y., December 7, 2017), alleges that pursuant to the Fair Labor Standards Act, the Plaintiff and others similarly situated are entitled to recover from the Defendants: (1) unpaid minimum wages, including those resulting from the Defendants' alleged unlawful deduction of a tip credit; (2) unpaid overtime premium; (3) unpaid wages due to time shaving; (4) liquidated damages; and (5) attorneys' fees and costs. Felidia Restaurant, Inc., is a domestic business corporation organized under the laws of the state of New York with a principal place of business located in New York City. Pola Restaurant Inc., doing business as BECCO, is a domestic business corporation organized under the laws of the state of New York with a principal place of business located in New York City. Il Posto LLC, doing business as DEL POSTO, is a domestic limited liability corporation organized under the laws of the state of New York with a principal place of business located in New York City. Pulpo LLC, doing business as ESCA, is a domestic limited liability corporation organized under the laws of the state of New York with a principal place of business located in New York City. Each of the Corporate Defendants is a member of the Batali & Bastianich Hospitality Group ("B&B"), a restaurant group fully- owned by the Individual Defendants headquartered in New York City. The Individual Defendants are owners and principals of each of the Corporate Defendants. The Defendants collectively own and operate four high-end Italian restaurants in New York City: (a) "Felidia," located at 243 East 58th Street, in New York City; (b) "Becco," located at 355 West 46th Street, in New York City; (c) "Del Posto," located at 85 10th Avenue, in New York City; and (d) "Esca," located at 402 West 43rd Street, in New York City.[BN] The Plaintiff is represented by: C.K. Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 30 East 39th Street, Second Floor New York, NY 10016 Telephone: (212) 465-1188 Facsimile: (212) 465-1181 E-mail: cklee@leelitigation.com anne@leelitigation.com FINISAR CORP: Shearman Comments on Denial of Class Certification ---------------------------------------------------------------- Shearman & Sterling LLP, in an article for Lexology, reports that on December 5, 2017, the United States District Court for the Northern District of California denied class certification in a putative securities fraud class action against Finisar Corporation ("Finisar"), a technology company focused on fiber optic subsystems, and its current chairman/CEO and former CEO, in which plaintiffs alleged that defendants misled investors by denying that Finisar's revenue growth was the result of inventory build-up by customers. In re Finisar Corporation Securities Litigation, No. 5:11-cv-01252-EJD (N.D. Cal. Dec. 5, 2017). In denying plaintiffs' motion for class certification, the Court ruled that defendants successfully rebutted the fraud-on-the- market presumption of reliance by demonstrating that defendants' statements had no statistically significant impact on Finisar's stock price. Plaintiffs' allege that, prior to the class period, Finisar experienced six consecutive fiscal quarters of growth. During this growth phase, industry analysts opined that Finisar's growth was driven by customers building inventory rather than customers purchasing Finisar's products for immediate use. On a call with analysts and investors on December 2, 2010, Finisar's then-CEO allegedly responded to an analyst's question by assuring the analyst that there were no issues with inventory build-up. The day that Finisar's former-CEO made this comment, Finisar's stock price increased, and it continued to increase throughout the class period. On March 8, 2011, Finisar issued a press release, in which it disclosed that its revenues would be lower than projected due in part to "previously undisclosed inventory build- up." Following the issuance of the press release, Finisar's stock price dropped 39 percent. Plaintiffs filed a motion to certify a class of all persons and entities who purchased or otherwise acquired Finisar's common stock between December 2, 2010 (the date of the alleged misstatement) and March 8, 2011 (the date of the alleged corrective disclosure). With respect to Rule 23(b)(3)'s predominance requirement, plaintiffs contended that class-wide issues predominated over individualized issues with regard to the element of reliance because class members are entitled to a presumption of reliance based upon the fraud-on-the-market theory. The Court analyzed the predominance requirement in two steps. First, the Court ruled that, because Finisar's stocked traded on an open, well-developed, and efficient market, plaintiffs had made a sufficient showing to invoke the fraud-on- the-market presumption of reliance. Second, the Court ruled that defendants had rebutted the presumption of reliance by presenting evidence that the alleged misstatement did not impact Finisar's stock price. In reaching this result, the Court relied heavily on defendants' expert report, which showed that there was an increase in Finisar's stock price in the hours leading up to the alleged misstatement, but that there was not a statistically significant price increase immediately following the alleged misstatement. The Court also rejected plaintiffs' argument that price impact should be inferred from Finisar's stock price decline following the alleged corrective disclosure on March 8, 2011. While acknowledging that many courts have found price impact based on price movement following a corrective disclosure, the Court ruled that, under existing precedent, defendants are permitted to "sever the link" between the alleged misrepresentation and the price paid by the plaintiff by demonstrating a lack of price movement at the time of the misrepresentation. The Court also rejected plaintiffs' argument that defendants' expert's analysis was flawed because the three-hour timeframe he analyzed following the alleged misstatement was too limited. The Court ruled that the defendants' timeframe was reasonable because "an efficient market is said to digest or impound news to the stock price in a matter of minutes." This case highlights that, even when there is a significant decline in stock price following a corrective disclosure, defendants can still rebut the fraud-on-the-market presumption of reliance by demonstrating through expert evidence that there is no price impact at the time of the alleged misstatement. [GN] FUJITSU TECHNOLOGY: Settles 401(k) Plan Class Action for $14MM -------------------------------------------------------------- Rob Kozlowski, writing for Pensions & Investments, reports that Fujitsu has settled for $14 million a class-action lawsuit against its American subsidiary and 401(k) plan executives alleging the plan violated its ERISA duties by paying high fees for investment options. The lawsuit, Johnson et al. vs. Fujitsu Technology and Business of America Inc. et al., filed June 30, 2016, in U.S. District Court in San Francisco, alleged that plan executives "failed to utilize the least expensive share classes for many mutual funds with the plan," according to the original court filing. In the Dec. 6 settlement filing, the "defendants admit no wrongdoing or liability with respect to any of the allegation or claims in the complaint or amended complaint, any wrongdoing or liability being expressly denied by defendants and each of them." The original complaint alleged that plan executives paid record- keeping expenses "far in excess of what a prudent fiduciary would pay for those same services," and also argued that the plan had offered and implemented an "imprudently" designed custom target- date fund series. Until July 31, 2015, the lawsuit said defendant Shepherd Kaplan LLC, an investment adviser, was a "named investment fiduciary" that designed the custom target-date series. In March 2016, the Fujitsu 401(k) plan replaced the target-date series with a new series designed by Callan, the lawsuit added. As of Dec. 31, 2016, the Fujitsu Group Defined Contribution and 401(k) Plan had $1.35 billion in assets, according to the company's most recent Form 5500 filing. In a statement emailed by a spokesman, Fujitsu said: "The reporting we have seen so far has been based almost entirely on rote repetition of allegations in the amended complaint. Those allegations are denied in the answers filed by the defendants, to which we refer anyone interested in the real posture of this case at the time of settlement." "We are confident that, if this case had proceeded further, we would have prevailed against many or all of the claims against us. However, the history of cases of this nature is that they are complex and expensive to litigate, and that the resolution of them can take as long as a decade. Therefore, we came to conclude that this settlement at this time is in the best interests of everyone," the statement said. [GN] GAP INC: Accused by "Kaible" of Sending Illegal Marketing Texts --------------------------------------------------------------- ADRIANA KAIBLE, individually and on behalf of all others similarly situated v. THE GAP, INC., a Delaware corporation and OLD NAVY, LLC a Delaware limited liability company, Case No. 0:17-cv-62408-RNS (S.D. Fla., December 7, 2017), accuses the Defendants of making consumers' cellular phones ring by sending illegal marketing text messages providing different types of "deals," "discounts" and "savings" for goods sold by the Defendants without first obtaining express written consent to send such marketing text messages as required to do so under the Telephone Consumer Protection Act. The Gap, Inc., is a Delaware corporation whose principal office located in San Francisco, California. The Gap is the parent company for five apparel brands: Gap, Banana Republic, Old Navy, Athleta and Intermix. These brands are available in 90 countries, including the United States, through 3,300 company- operated stores as well as through an online presence. Old Navy, LLC, is a Delaware limited liability company headquartered in San Francisco. Old Navy is a member managed company whose sole managing member is Gap.[BN] The Plaintiff is represented by: Jibrael S. Hindi, Esq. THE LAW OFFICE OF JIBRAEL S. HINDI, PLLC. 110 SE 6th Street Ft. Lauderdale, FL 33301 Telephone: (954) 907-1136 Facsimile: (855) 529-9540 E-mail: jibrael@jibraellaw.com - and - Scott D. Owens, Esq. SCOTT D. OWENS, P.A. 3800 S. Ocean Dr., Suite 2345 Hollywood, FL 33019 Telephone: (954) 589-0588 Facsimile: (954) 337-0666 E-mail: scott@scottdowens.com GARDANT MANAGEMENT: Faces Class Action Over BIPA Violation ---------------------------------------------------------- Lhalie Castillo, writing for Madison - St. Clair Record, reports that three employees filed a class action lawsuit against biometric collectors for allegedly unlawfully collecting personal information. Stephanea Boyce, Evadne Denzmore and Nichole Holm, individually and on behalf of all others similarly situated, filed a complaint on Dec. 4, in the St. Clair County Circuit Court against Gardant Management Solutions Inc. and Does 1-100, alleging that they violated the Biometric Information Privacy Act. According to the complaint, the plaintiffs allege that the defendants illegally collected, stored and used their biometric identifiers and information without informed written consent. As a result of defendants' unlawful acts, Boyce, Denzmore and Holm suffered damages of less than $75,000 and fear and worry that their private information may be used illegally. The plaintiffs request a trial by jury and seek an order certifying this case as a class action and appointing plaintiffs' counsel as class counsel, injunctive relief to protect the plaintiffs' interest, statutory damages of $5,000 for intentional violation and $1,000 for negligent violation of the act, attorney's fees, costs and any further relief that the court deems appropriate. They are represented by John D. Driscoll of The Driscoll Firm PC in St. Louis. St. Clair County Circuit Court case number 17-L-719 [GN] GARNETT STATION: "McGee" Seeks to Recover Wages for Shift Leaders ----------------------------------------------------------------- DOROTHY McGEE and MARKEGIOUS POLK, Individually, and on behalf of themselves and other similarly situated current and former employees v. GARNETT STATION PARTNERS, LLC, A Delaware Limited Liability Company, CAMBRIDGE FRANCHISE HOLDINGS, LLC, a Delaware Limited Liability Company, MIRABILE INVESTMENT CORPORATION, a Tennessee Corporation, and, RAY MEEKS, TIM FURR, JOSEPH MIRABILE, MATT PERELMAN, ALEX SLOANE, and CHRIS SCHNIEPP, Individually, Case No. 2:17-cv-02884-JPM-dkv (W.D. Tenn., December 8, 2017), is a collective action for wage theft under the Fair Labor Standards Act, to recover unpaid minimum wages and unpaid overtime compensation and other damages owed to the Plaintiffs and other similarly situated current and former employees, classified as hourly-paid Shift Leaders by the Defendants. Garnett Station Partners, LLC, is a Delaware Limited Liability Company with its principal executive office located in Bartlett, Shelby County, Tennessee. Cambridge Franchise Holdings, LLC, is Delaware Limited Liability Company with its principal executive office located in Bartlett. Mirabile Investment Corporation, doing business as MIC, is a Tennessee Limited Liability Company with its principal executive office located in Bartlett. The Individual Defendants are partners, agents, employees, directors or officers of the Corporate Defendants. The Defendants own and operate approximately 120 Burger King Restaurants. The Defendants owned and operated Burger King franchised restaurants in several states across the U. S., including Tennessee, Mississippi, North Carolina, South Carolina, Virginia, Arkansas, Kentucky and Indiana.[BN] The Plaintiffs are represented by: Gordon E. Jackson, Esq. James L. Holt, Jr., Esq. J. Russ Bryant, Esq. Paula R. Jackson, Esq. JACKSON, SHIELDS, YEISER & HOLT 262 German Oak Drive Memphis, TN 38018 Telephone: (901) 754-8001 Facsimile: (901) 759-1745 E-mail: gjackson@jsyc.com jholt@jsyc.com rbryant@jsyc.com pjackson@jsyc.com GC SERVICES: Mails Misleading Collection Letters, Jaber Claims -------------------------------------------------------------- SABAH JABER, individually and as representative of a class of similarly situated persons v. GC SERVICES LIMITED PARTNERSHIP, a Delaware limited partnership, Case No. 2:17-cv-13971-VAR-SDD (E.D. Mich., December 8, 2017), challenges the Defendant's alleged policy and practice of mailing false, deceptive, and misleading collection letters to consumers whose credit card accounts have been placed for collection with the Defendant. GC Services is a limited partnership organized under the laws of the state of Delaware, and is authorized to conduct business in Michigan. The Defendant regularly collects or attempts to collect debts owed or due or asserted to be owed or due another.[BN] The Plaintiff is represented by: Nemer N. Hadous, Esq. HADOUS CO. PLLC 24725 W. 12 Mile Rd., Suite 110 Southfield, MI 48034 Telephone: (248) 663-5155 E-mail: nhadous@hadousco.com - and - Michael Jaafar, Esq. FAIRMAX LAW, PLLC 23400 Michigan Avenue, Suite 110 Dearborn, MI 48124 Telephone: (313) 846-6400 E-mail: mike@fairmaxlaw.com - and - Rex C. Anderson, Esq. REX ANDERSON, P.C. 9459 Lapeer Rd., Suite 101 Davison, MI 48423 Telephone: (810) 653-3300 E-mail: rex@rexandersonpc.net GENERAL MOTORS: Faces Class Action Over Salt Contamination ---------------------------------------------------------- Peter Chawaga, writing for Water Online, reports that residents living near General Motor's Michigan testing facility have come together to file a class action lawsuit against the manufacturer, claiming it has knowingly contaminated the local water supply since at least the 1980s. "The alleged source of the contamination, which includes high levels of sodium and chloride, is the Milford Proving Grounds, a 4,011-acre vehicle testing facilities that borders Livingston and Oakland counties," Michigan Live reported. "Opened in 1924, the Proving Grounds contains more than 100 miles of roads, 'numerous parking lots,' and more than 150 buildings, according to the lawsuit." The lawsuit points to the release of hundreds of thousands of tons of salt over the last 30 years as the contaminant at issue. "Prolonged exposure to unsafe amounts of sodium and chloride can have a negative effect on liver and kidney, as well causing hypertension and high blood pressure," per Michigan Live. The lawsuit charged GM with fraud, violation of the Michigan Environmental Protection Act, negligence, trespassing, and acting as a public and private nuisance. Plaintiffs are seeking a $25,000-plus award for each affected resident, a stop to the pollution, and a comprehensive cleanup. The manufacturer has a different take. "GM does not believe the suit has merit," the company said in a statement, reported by The Macomb Daily. "Salt deposits naturally occur in this area, and salt is also used on the many nearby public roads during winter. Nonetheless, acting as a good neighbor, salt usage at the Milford Proving Ground has been reduced by 60% over the last two decades." Residents claim that water tests conducted by the Michigan Department of Environmental Quality have found elevated levels of sodium chloride in their homes. Some have been drinking bottled water since 2005. According to The Macomb Daily, GM's 2013 Annual Salt Usage and Monitoring Report indicated that 18,414 tons of salt were used at the proving grounds between 2007 and 2013 and the lawsuit claims that water sources demonstrated contamination within that timeframe. In 2014, GM acknowledged contamination. "The suit alleges that until October 2014, when GM issued the migration notices to residents admitting contamination, and despite reports citing sodium chloride contamination for more than 30 years, GM actively concealed and ignored the level of pollutants leaching into neighboring groundwater and drinking water sources," per The Macomb Daily. [GN] GEO GROUP INC: Underpaid "Novoa" Claiming Minimum Wages ------------------------------------------------------- Raul Novoa, individually and on behalf of all others similarly situated, Plaintiff, v. The Geo Group, Inc., Defendant, Case No. 17-cv-02514 (C.D. Cal., December 19, 2017), seeks disgorgement of GEO's unjustly-acquired revenue, profits, declaratory and other equitable and injunctive relief, reasonable litigation expenses and attorneys' fees under the Fair Labor Standards Act. California's Adelanto Detention Center is a civil immigration detention facility owned and operated for profit by The GEO Group, Inc. From 2012 through 2015, Mr. Novoa was detained at the Adelanto Facility. During those three years, he was employed by GEO as a janitor and a barber. He was paid only $1 per day for his labor, regardless of how many hours he worked. [BN] Plaintiff is represented by: Warren T. Burns, Esq. Will Thompson, Esq. BURNS CHAREST, LLP 900 Jackson Street, Suite 500 Dallas, Texas 75202 Tel: (469) 904-4550 Fax: (469) 444-5002 E-mail: wburns@burnscharest.com wthompson@burnscharest.com - and - Korey A. Nelson, Esq. Lydia A. Wright, Esq. BURNS CHAREST LLP 365 Canal Street, Suite 1170 New Orleans, LA 70130 Telephone: (504) 799-2845 Facsimile: (504) 881-1765 E-mail: knelson@burnscharest.com lwright@burnscharest.com - and - R. Andrew Free, Esq. LAW OFFICE OF R. ANDREW FREE P.O. Box 90568 Nashville, TN 37209 Telephone: (844) 321-3221 Facsimile: (615) 829-8959 E-mail: andrew@immigrantcivilrights.com GEORGIA: Retirees File Class Action Over Health Insurance Plan -------------------------------------------------------------- James Salzer, writing for The Atlanta Journal-Constitution, reports that a state board's decision five years ago to change health insurance policies so that some recently retired educators would pay dramatically more for coverage is now the subject of a class-action lawsuit. Some of the retirees -- who have seen their rates about triple since they retired in 2017 -- argue in the lawsuit filed in Fulton County Superior Court that the Department of Community Health's board broke a contract with them to provide the same state-subsidized insurance as other retirees. "We just want to be treated fairly," said Chuck Trader, a second- career Camden County teacher who retired over the summer and is a plaintiff in the lawsuit. "They have taken away what we've earned. Had I known, I would have maybe not chosen to become a teacher." The lawsuit was filed about three weeks after The Atlanta Journal-Constitution first reported on the policy. A Department of Community Health spokeswoman was not available for comment. The policy was approved through a resolution a few weeks before Christmas in 2011. The resolution created a system that gave retirees -- teachers, school staffers, state employees -- insurance subsidies based on their years of service. Anyone with less than five years of service with the state or a school system on Jan. 1, 2012, would get relatively little subsidy after 10 years. But the subsidy would increase with more time working for the state or school system. While DCH officials sent out a memo in February 2012 to districts and agencies informing them about the decision -- aimed at saving the state plan money -- retirees and teachers contacted by the AJC said they didn't know about what they called the "retroactive effect." The issue came to a head this fall because teachers, school staffers and employees hired in the 2007-2008 school year became vested in the state retirement systems after 10 years over the summer. They began retiring, expecting to continue receiving state health insurance for the same premiums they were paying while they were working. They say they found out after they retired that they'd have to pay nearly the full freight on the health care plan because they didn't have five full years in the system as of January 2012. Mr. Trader had left a career in corporate finance to become a middle school math teacher. When he retired after 10 years, his family's insurance went from $540 a month to $1,611. That's almost double the $870 pension check he receives for his decade in the classroom In November DCH officials declined a request for an interview on the issue but said in written responses to questions that the policy was "a proactive step toward plan sustainability for current and future retirees." The "plan" that the DCH statement refers to is the $3 billion-a-year State Health Benefit Plan, which covers about 650,000 teachers, state employees, retirees and their dependents. DCH officials have often projected massive deficits in the program and have made several changes to it over the years to keep it solvent. In its written response to the AJC, the agency said it didn't know how many teachers and state employees would be affected, and it didn't answer a question asking how much the plan is projected to save. Besides the earlier memo, the DCH said the agency sent out a letter in December 2016 to State Health Benefit Plan members who had not been part of the plan as of Jan. 1, 2012, notifying them about the policy. Teachers and employees who retired in 2017 when they reached 10 years in the system said they weren't told about the issue when they talked with benefits managers this spring prior to leaving. Critics of the policy say it could put a damper on the plans of second-career teachers, those wanting to teach 10 to 12 years after successful careers in other fields with the incentive that they'll be able to retire with affordable health insurance. "This is going to affect the recruitment of teachers," Mr. Trader said. "And who is going to go to work for people who break their promises?" The lawsuit asks for damages and for the policy change to not affect those on the payroll when it was approved in 2011. [GN] GLOBAL CREDIT: "Goethel" Suit Claims FDCPA Violations ----------------------------------------------------- NANCY GOETHEL, individually and on behalf of all others similarly situated v. GLOBAL CREDIT & COLLECTION CORP. and John Does 1-25, Case No. 1:17-cv-08852 (N.D. Ill., December 8, 2017), seeks damages and declaratory and injunctive relief on behalf of a class of Minnesota consumers under the Fair Debt Collections Practices Act. Global Credit and Collection Corp. is a "debt collector" as the phrase is defined in the FDCPA. The Defendant is a company that uses the mail, telephone and facsimile and regularly engages in business the principal purpose of which is to attempt to collect debts alleged to be due another. The Doe Defendants are fictitious names of individuals and businesses alleged for the purpose of substituting names of the Defendants whose identities will be disclosed in discovery and should be made parties to this action.[BN] The Plaintiff is represented by: Yaakov Saks, Esq. RC LAW GROUP, PLLC 285 Passaic Street Hackensack, NJ 07601 Telephone: (201) 282-6500 E-mail: ysaks@rclawgroup.com GOMEZ ENTERPRISES: Fails to Pay Overtime, "Calixto" Suit Alleges ---------------------------------------------------------------- EMILIO JUAREZ CALIXTO, individually and on behalf of others similarly situated v. GOMEZ ENTERPRISES USA CORP. (d/b/a CAFE 37), Case No. 1:17-cv-09617 (S.D.N.Y., December 7, 2017), alleges that the Plaintiff has worked for the Defendant in excess of 40 hours per week, without receiving the applicable minimum wage or appropriate compensation for the hours over 40 per week that he has worked. Gomez Enterprises USA Corp. is a corporation organized and existing under the laws of the State of New York. It owns a restaurant under the name "Cafe 37" located at 47 West 37th Street, in New York City.[BN] The Plaintiff is represented by: Michael A. Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 4510 New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 E-mail: Michael@Faillacelaw.com GOOGLE INC: Fails to Refund Advertisers for Invalid Clicks ---------------------------------------------------------- Jim Edwards, writing for Business Insider, reports that a web advertising company named AdTrader, whose staff surreptitiously recorded a phone conversation with a Google executive, claims in a class-action lawsuit that Google does not refund money to advertisers when it discovers that those advertisers have spent money on fraudulent or invalid clicks. If the suit is successful it could put Alphabet, Google's parent company, under pressure to repay tens or hundreds of millions of dollars to advertisers whose money was spent on websites that Google later deemed broke its rules. The suit, citing a 2014 report, claims AdX generates $1 million per hour for its publishers. A Google spokesperson said, "We look forward to reviewing the specific complaint. From what we have read in the press, these allegations are without merit. We have a longstanding policy of refunding advertisers for invalid traffic. As we recently announced, this is currently being expanded to include ads purchased via DoubleClick Bid Manager." That announcement was made in September. Google is likely to fight the case. The company has an incentive to remove bad actors from its systems in order to make its sure its ad inventory is of high quality, to keep advertisers coming back for more. The search giant has suffered for years from unfounded rumours that it retains money spent through its ad placement systems on websites that break its rules. The company often has difficulty explaining publicly why it kicks publishers off its platforms because to do so would offer clues to nefarious operators on how to avoid Google's scam detection efforts. Google is also plagued by low-quality websites and advertisers who try to game its systems to their own advantage, and the company is known to be aggressive about removing them. Nearly $500,000 - gone About $80 billion of Google's $90 billion in annual revenue comes from advertising sales. Put very simply, Google provides a massive set of platforms through which advertisers pay to place their ads on thousands of available websites. Advertisers simply pick what type of people they want to target -- by gender or location, for instance -- and Google automatically places those ads on websites that fit the bill. Similarly, Google allows website publishers to offer their empty ad space for sale on those systems. That business is so lucrative, and so complicated, that ad management companies have sprung up to assist advertisers and publishers to get the best deals. New Jersey-based AdTrader is one of those companies. Its staff came to believe there was a financial discrepancy in their payments from Google, the US federal lawsuit claims, when they taped a phone call with Google's Dublin-based director of online partnerships, Anthony Nakache. In the call, Nakache allegedly says that $476,622 paid by advertisers that ran on sites that fell afoul of Google's rules would be refunded to AdTraders' advertising clients, according to the suit. What Nakache did not know, AdTrader claims, is that AdTrader was acting as both a buyer and a seller of ad space for its clients and was thus able to check whether that $476,622 actually arrived in its clients' accounts. The money was never received from Google by the clients, the suit claims, and AdTrader ended up reimbursing its clients for the sum. "Advertisers have long been promised that they would get refunds or credits if Google determined that impressions or clicks on their ads were invalid. It appears that Google never honored this promise, and this lawsuit is intended to force Google to pay back its advertisers what they are owed," said Randolph Gaw -- rgaw@gawpoe.com -- of the law firm Gaw Poe in San Francisco, the attorneys representing AdTrader in the case. The secretly recorded call On May 19, 2017, Google informed AdTrader in an email that its DoubleClick Ad Exchange (AdX) account was suspended, and $476,622 in ad sales accrued in it would be withheld. The company was also kicked off the AdX platform. Google's email was not specific as to why AdTrader was banned, but it mentioned that placing ads on sites with "misguided navigation" issues, such as "Linking to content that does not exist," as an example of the violations AdTrader could have committed. Over the next five days, AdTrader scrambled to find out why Google was withholding its cash. On May 24, 2017, someone on AdTrader's staff began recording a phone call with Google's Nakache. The Google employee was in Ireland and the AdTrader employee was out of the US at the time, so US privacy law did not apply to the call, the lawsuit states. According to a transcript prepared for the lawsuit, the conversation went like this: AdTrader: All of the money is going to be refunded to advertisers? Nakache: Yes. AdTrader: Does that mean that every single impression and every single click for all of our publishers has been? Nakache: Exactly. Everything in the account, the account is in violation of our policy, advertisers have been impacted, and as a result we have made the decision to refund all the advertisers and all the revshare from Google. *** AdTrader: So, every single advertisers who has bought a single impression for the past two months from any of our publishers will get their money back? Is that correct? Nakache: Yes. *** AdTrader: I see. OK, so we are not going to receive anything unless the appeal is successful we will not be paid anything. Nakache: No, the money is going to be paid back to the advertisers. AdTrader: So, whether the appeal is successful or not, we will still not receive the payment, is that correct? Nakache: Yes. Puzzled, AdTrader asked its other clients if they had ever received a refund from Google. None of them had received any money, the suit alleges. The plaintiffs do not say how much money they believe Google withholds from publishers each year. Google doesn't break out how much revenue runs through its various online ad products, which include DoubleClick Ad Exchange, DoubleClick Bid Manager, AdWords, AdSense, and others. So it is difficult to estimate how much money is at stake if Google loses or settles the case. What's at stake Google has hundreds of different apps and platforms that generate its sales, but it breaks down those revenues into only five large segments. Some products, such as AdX and Bid Manager, can be used to buy Google ads in more than one segment. Google earned $15.5 billion in 2017 from its "Google Network Members" segment, which includes web publishers, according to its annual report. It is not clear what percentage is spent through AdX, or what percentage is taken by Google in disputed circumstances. Brian Wieser, a senior research analyst at the Pivotal Research Group who has covered Google for years, believes $14 billion might run through the system that AdTrader was using. But he calls that a "crude guess" because "it's difficult to know with much precision." Separately, Google said in August that it would refund 7-10% of total purchases back to advertisers after it had discovered invalid clicks on ads bought in Q2 2017 through DoubleClick Bid Manager. Another suit has been granted class-action status The AdTrader allegations bear a resemblance to a similar set of allegations that surfaced in 2014, when Google was accused by at least seven web publishers of wrongly taking millions in ad fees their sites had earned using Google's AdSense program. The sites all claim they were following Google's strict advertising rules, and some say they were encouraged by Google's sales employees to continue what they were doing. But then their AdSense accounts were suddenly cancelled, and all the money in their accounts removed. Google denied their appeals and gave little detail on what prompted the cancellations. Three companies sued. One of them, Free Range Content Inc., persuaded a federal judge in Northern California to grant its lawsuit class-action status in July of 2017. That suit now covers all AdSense publishers in America from 2013 onwards who may be owed money, according to the ruling. The class likely includes thousands of customers. The case is ongoing. Google denies the allegations. Why would Google kick publishers and ad managers off its system, when it needs those companies to generate the ad inventory Google's own revenues are dependent on? AdTrader claims in the suit that it has discovered an answer. Balint Torok, a strategic partner manager based at Google in Dublin, told AdTrader that some companies appear on Google's radar when they reach a certain revenue run-rate, for instance $4-5 million, the suit claims. AdTrader's own employees believed that at that level, its clients might be creating enough revenue that Google would want to cut out the middleman and work directly with them, the suit alleges. A few days after Google terminated AdTrader on May 19, it contacted one of AdTrader's most important clients, a video game highlights company called DingIt, to begin a direct relationship, the suit claims. [GN] GOOGLE INC: Faces Class Action in B.C. Over Data Collection ----------------------------------------------------------- Business Vancouver reports that Vancouver resident Kipling Warner is suing Google LLC in a proposed class action for alleged privacy violations after news broke that Android smartphones collect location data on users even when "location services" are shut off and SIM cards are removed. Mr. Warner filed a notice of civil claim under the Class Proceedings Act on November 28 in BC Supreme Court. "Google collects, uses, retains and commercialises [sic] the location data it takes from users, and profits from it," the claim states. "Google's wrongful acts violated the Privacy Act . . . and unjustly enriched it at the expense of users. Through this suit, Canadian users seek to hold Google accountable for this unlawful conduct." Mr. Warner claims he owns a Samsung Galaxy S4 that runs Google's Android operating system and had the phone's location services feature disabled. He claims that in 2017, the internet behemoth "began a program of mass user surveillance." The data, according to the lawsuit, enabled Google to monitor and identify users' movements and locations. "Google's decision to collect the Location Data was planned and deliberate, and was made knowing that users had not consented to, and were not aware of, its collection," the claim states. In turn, Kipling claims, Android users' privacy was violated and the data collection could allegedly facilitate "surveillance by hackers or undesireable state actors" while people who need their locations kept secret such as victims of abuse, journalists and confidential sources, or undercover police officers, are under "increased risk of personal harm from disclosure," the claim states. Kipling seeks an order certifying the suit as a class proceeding, damages for breach of the Privacy Act, and "disgorgement of all benefits received by Google attributable to the unauthorised [sic] collection, retention, and use of the Location Data." The allegations have not been tested in court, and Google had not filed a response by press time. [GN] GUAM: Settlement Unlikely in H-2B Visa Program Class Action ----------------------------------------------------------- Haidee V Eugenio, writing for Pacific Daily News, reports that it is unlikely that a settlement will be reached in the case involving the use of skilled foreign labor on Guam, attorneys stated in documents filed on Dec. 13 in the U.S. District Court of Guam. The Guam Contractors Association and nearly a dozen local businesses that have used foreign labor under the federal H-2B visa program sued the federal government in October 2016 after immigration officials started denying nearly all visa applications under the program. A foreign work force that in recent years exceeded 1,000 on Guam under the program is now fewer than 50. None of the plaintiffs in the case have any H-2B workers remaining on the payroll. The impact is widespread, businesses have stated, resulting in the inability to take on new projects, with rising costs for any construction work that does manage to start. U.S. District Court Chief Judge Frances Tydingco-Gatewood on Dec. 11 held a day-long hearing on issues related to the case, including a motion to dismiss and a motion to certify the case as a class-action. She also must decide whether to issue a temporary injunction, as requested by the businesses. Magistrate Judge Joaquin Manibusan, who presided over preliminary issues in the case, has recommended that the request for an injunction be denied because he believes the plaintiffs are unlikely to win their case. Judge Tydingco-Gatewood ordered the parties to state, by noon on Dec. 13, whether settlement is a viable option, before she makes a decision on the pending motions. Settlement does not appear to be a viable option at this time, according to attorneys Jeff Joseph and Jennifer Davis, who are counsels for the plaintiffs. They stated that the plaintiffs had proposed two settlement options to the federal government, and both were rejected. They stated if there is to be a settlement, they expect the federal government to come up with a proposal. They said they received a Dec. 12 email from the federal government, indicating the government has no settlement proposal to offer. "As such, unless the defendants are willing to consider the plaintiffs' previous offers of settlement, it appears that settlement is not a viable option at this time," Joseph and Davis stated. President Trump signed the 2018 defense budget bill, which will allow as many as 4,000 H-2B visa workers on Guam each year, but only for military-related projects. [GN] HILMER CONSTRUCTION: "Sandoval" Sues Over Unpaid Overtime --------------------------------------------------------- Jaime Mosqueda Sandoval, individually and on behalf of all similarly situated persons, Plaintiff, v. Hilmer Construction Services LLC and Hilmer James Morgan, Defendants, Case No. 17-cv- 03804, (S.D. Tex., December 19, 2017), seeks to recover unpaid overtime compensation, liquidated damages and attorney's fees under the Fair Labor Standards Act of 1938. Hilmer Construction Services operates as Ace Construction Services where Mr. Sandoval was employed as a general construction worker. Mr. Sandoval regularly worked in excess of 40 hours in a workweek without overtime premium. [BN] Plaintiff is represented by: Josef F. Buenker, Esq. Vijay A. Pattisapu, Esq. THE BUENKER LAW FIRM 2030 North Loop West, Suite 120 Houston, Texas 77018 Tel: (713) 868-3388 Fax: (713) 683-9940 E-mail: jbuenker@buenkerlaw.com vijay@buenkerlaw.com HOFFMANN-LA ROCHE: NJ Sup. Court Adopts Daubert in Accutane Case ---------------------------------------------------------------- Michelle M. Bufano, Esq. -- mmbufano@pbwt.com -- and Louis M. Russo, writing for Law.com, wrote that causation is an essential element needed to prove a products liability claim and which often involves scientific and medical complexities. In such instances, expert testimony is required. It has been the position of many products liability lawyers that the New Jersey standard for admissibility of expert testimony needs to be more stringent and consistent with the federal standard set forth in Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993). Applying a strict standard to judicial gatekeeping of scientific evidence, Daubert is intended to ensure that "junk science" is not permitted to reach the jury. New Jersey, however, adheres to the Kemp standard, which, in practice, provides for less scrutiny of an expert witness's methodology than the approach followed in other courts. New Jersey's adherence to Kemp incentivizes litigation where the plaintiff's medical/scientific theory of the case may be less than sound -- and results in many of these cases being filed in New Jersey because of the more lenient standard of admissibility. Most recently, in In re Accutane Litig., 451 N.J. Super. 153 (App. Div. 2017), the Appellate Division applied an even more "relaxed standard," which accepted the arguments of plaintiffs' experts without addressing whether they employed a coherent methodology. As a result, the Accutane defendants have filed a petition for certification to the New Jersey Supreme Court, which seeks clarification of the New Jersey standard for expert admissibility and advocates for more stringent judicial gatekeeping. As a result, the New Jersey Supreme Court has been presented with the perfect opportunity to adopt Daubert and ensure that there are robust checks on the expert testimony presented in New Jersey courts, as well as to stop the proliferation of cases filed in New Jersey by out-of-state plaintiffs, who seek to take advantage of this less rigid standard. Expert Testimony in Pharma Products Liability Litigation As stated above, expert testimony is critical in pharmaceutical products liability cases. In fact, every jurisdiction requires expert testimony to prove medical causation -- that is proof that a medicine can cause a disease and that the medicine was the cause of plaintiff's disease. See, e.g., In re Accutane Litig., 451 N.J. Super at 191-92. Ultimately, a significant portion of products liability cases are won and lost based on proof (or lack thereof) of causation. Indeed, the admissibility of expert testimony on causation often means the difference between costly and protracted litigation and resolution at the summary judgment stage. Federal and State Standards At the federal level and in most states, the admissibility of expert testimony is governed by Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993), and Federal Rule of Evidence 702. Under Daubert, a party must show: (1) that the reasoning and methodology underlying their expert's testimony is scientifically valid; and (2) that the proffered opinion assists the trier of fact in understanding the evidence or determining a fact at issue. Daubert, 509 U.S. at 592-93; see also In re: Zoloft (Sertraline Hydrochloride) Prods. Liab. Litig., 858 F.3d 787, 792-93 (3d Cir. 2017). Under Daubert, trial courts "serve as gatekeepers for expert witness testimony." In re: Zoloft, 858 F.3d at 792. In that role, the court must first determine if a witness is qualified "by knowledge, skill, experience, training, or education," and then determine whether the offered testimony "is the product of reliable principles and methods[] and . . . the expert has reliably applied the principles and methods to the facts of the case." Daubert, 509 U.S. at 579. Under Daubert, courts conduct a robust review of an expert's opinion, considering "the testability of the hypothesis, whether it has been peer reviewed or published, the error rate, whether standards controlling the technique's operation exist, and whether the methodology is generally accepted." In re Zoloft, 858 F.3d at 792. The Daubert standard is codified in Federal Rule of Evidence 702, which permits expert opinion where: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. The Daubert standard applies in federal courts and 37 state courts. A minority of states, including New Jersey, apply what is referred to as the Frye standard -- named for Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). While called a standard, in practice, the states that do not apply Daubert apply a varying set of "relaxed" principles to the admissibility of expert testimony. The Kemp standard is New Jersey's articulation of Frye. These inconsistent and relaxed standards invite forum shopping and lead to inconsistent outcomes in cases involving similar products and plaintiffs. The Accutane appeal presents an opportunity for the New Jersey Supreme Court to adopt Daubert, and join the majority of states applying a uniform standard to the admissibility of expert testimony. This approach would bring New Jersey in line with the majority of courts and discourage forum shopping. The 'Kemp' Standard The New Jersey Supreme Court first enunciated a less rigorous standard for expert admissibility in toxic tort cases in Rubanick v. Witco Chem. Corp., 125 N.J. 421, 449 (1991). Expanding on Rubanick, the New Jersey standard for the admissibility of expert testimony in pharmaceutical products liability cases was announced in Kemp ex rel. Wright, 174 N.J. 412 (2002). In Kemp, the court acknowledged that it "relaxed the standard for admissibility of scientific evidence," due to what it called the "'extraordinary and unique burdens' plaintiffs faced when they sought to prove medical causation." Id. at 425 (quoting Rubanick, 125 N.J. at 433). Despite articulating a "relaxed" standard, the court cited Daubert favorably, acknowledging that "the inquiry is a 'flexible one,' and that its focus must be 'solely on principles and methodology, not on the conclusions that they generate.'" Id. at 426 (quoting Daubert, 509 U.S. at 594-95). Under Kemp and its progeny, and like Daubert, in exercising their gatekeeping function, trial courts are supposed to focus on the reliability of an expert's methodology. Id at 427. However, unlike Daubert, in Kemp, the Supreme Court specifically declined to adopt concrete guidelines, including fit, testability and error rate, which were adopted in Daubert. The failure to adopt these concrete guidelines ultimately results in a situation where parties litigating nearly identical cases can present tenuous and often misleading expert testimony in one courtroom, whereas the same testimony would never be permitted in a federal court just across the street. 'Kemp' as Applied in Accutane In In re Accutane, plaintiffs alleged that they developed Crohn's disease as a result of taking Accutane. Plaintiffs proffered the opinions of two experts, who both testified, inter alia, on the basis of epidemiological studies. In re Accutane Litig., 451 N.J. Super. at 162. Even though (1) plaintiff's experts acknowledged that none of the six studies was able to demonstrate statistically significant evidence of a correlation between Accutane and Crohn's disease; (2) plaintiff's experts relied on statistically insignificant evidence of a positive association between Accutane and Crohn's disease, while ignoring evidence of a negative association; and (3) plaintiffs relied on studies that reached opposite conclusions to support their opinion. Despite these flaws, the Appellate Division permitted the testimony because, in its words, it is the "jury's core function to weigh the credibility of expert witnesses, and the trial court should not use a Kemp hearing as a vehicle to dismiss a case the court perceives as weak." Id. at 212. Based on the Appellate Division's holding in In re Accutane, it is the jury's responsibility to identify and discredit junk science, a position contrary to Daubert, and Kemp for that matter. The Appellate Division usurped any gatekeeper role. Instead, it chose to relax the standard so far that the only meaningful considerations for a court are whether the expert is "qualified," employs the correct terminology, and looks at the right evidence, not whether the expert employed a methodology accepted by the scientific community. The result of that approach is that pharmaceutical companies must litigate cases whenever an expert can cabin a theory of causation into the words of the trade, regardless of whether their methodology is actually scientifically reliable. Why the More Stringent 'Daubert' Standard is Necessary in NJ There are three compelling reasons why New Jersey needs to adopt the more stringent standard articulated in Daubert. Daubert would ensure that: (1) juries are only presented with real and reliable science; (2) cases litigated in New Jersey are consistent with other courts; and (3) New Jersey courts are not a magnet for litigation based on dubious science. The essential holding of the Appellate Division in Accutane is that plaintiff's experts are permitted to disagree with the entire body of science, including not only the pharmaceutical companies themselves, but independent researchers and the FDA. At its most simple level, in New Jersey, the jury can credit an opinion that no scientist other than a litigation-hired expert agrees with. Daubert does not permit this sort of junk science. Courts that follow Daubert acknowledge that "the courtroom is not the place for scientific guesswork, even of the inspired sort. Law lags science; it does not lead it." Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 319 (7th Cir. 1996). In fact, federal and state courts have rejected the exact same evidence presented to the Appellate Division because Daubert requires courts to consider the particular degree of acceptance within a scientific community. Daubert, 509 U.S. at 594. Where the scientific and medical community does not agree that a medicine can cause an injury, Daubert ensures that a litigation-driven opinion that is, at best, ahead of that science is not permitted to reach the jury. The consequences of failing to adopt Daubert are profound. New Jersey is home to many of the largest pharmaceutical companies in the world. This fact is of particular importance given a recent U.S. Supreme Court precedent limiting where companies are subject to personal jurisdiction. New Jersey is a potential forum for major percentages of pharmaceutical products liability litigation. In fact, as it stands now approximately 93 percent of all cases filed against New Jersey-based pharmaceutical manufacturers are filed by non-New Jersey plaintiffs. 2013-2015 Report of the Supreme Court Committee on Rules of Evidence, Part II, at 15, 108 (Jan. 15, 2015), available at https://www.njcourts.gov/courts/assets/supreme/reports/2015/evide nce22015.pdf. The failure to adopt a more vigorous approach to expert testimony that is in line with the majority of jurisdictions will incentivize plaintiffs to continue to inundate New Jersey courts with cases that may be based on dubious scientific evidence. As it stands now, large plaintiffs firms have actually urged plaintiffs to file cases in New Jersey state court to take advantage of the more relaxed standards for expert testimony. Id. at 107. Adopting Daubert would help stem that tide. Mr. Bufano is a partner in the Litigation department of Patterson Belknap Webb & Tyler in New York, representing companies in complex products liability and mass tort litigation. Mr. Russo is an associate in the Litigation department, where his practice currently focuses on products liability defense and complex commercial litigation. [GN] HOME CAPITAL: West Face Files Suit Over Misleading Disclosures -------------------------------------------------------------- Barbara Shecter, writing for Financial Post, reports that alternative asset manager West Face Capital Inc. has formally filed a lawsuit against Home Capital Group Inc. and three former executives, seeking $70 million in damages over claims the mortgage lender's public disclosure was "inaccurate, incomplete and misleading." In a 17-page statement of claim filed in the Ontario Superior Court of Justice's Commercial List, West Face described taking a large short position in Home Capital in 2013, based on the investment thesis that the lender had "aggressive" growth targets and would have to take on more risk to achieve them. Between Apr. 30 and Aug. 2, 2013, West Face said it built the short position by borrowing and selling 2,586,800 shares of Home Capital, betting the share price would fall if Home Capital missed its "ambitious" growth targets, or "engaged in increasingly risky lending practices, with an inevitable deterioration in the quality of its loans." However, public disclosure in subsequent financial statements and on quarterly conference calls showed that Home Capital was achieving growth in its mortgage business, and was engaged in active risk management to prevent deterioration in the quality of the mortgage portfolio. At the same time, the document notes, Home Capital's share price continued to increase. "In reliance on these repeated public representations and in the absence of any disclosure of heightened risk in the mortgage portfolio or relaxed credit review standards, West Face reduced its position and ultimately abandoned its investment thesis," the asset manager says in the statement of claim filed on Dec. 7, 2017. Between October of 2013 and April of 2015, West Face purchased 2,586,800 shares of Home Capital to cover its short position, according to the court document. West Face alleges that it subsequently learned the public disclosures on which it had relied to buy those shares and close out its short position "were inaccurate, incomplete and misleading." In the court document, the asset manager points specifically to "corrective disclosures" issued by the company in July of 2015, and "a confidential report completed by KPMG for the Board of Directors of Home Capital . . . (that) was leaked on the Internet" in August of 2017. West Face alleges the KPMG report "revealed for the first time that Home Capital and the individual defendants had been misleading the market with respect to Home Capital's risk management practices since at least 2013." The statement of claim says West Face said it "would not have made the same investment decisions had Home Capital's disclosure been timely, accurate, and complete." What's more, it alleges "the price at which West Face purchased Home Capital's shares was inflated by virtue of the fact that market participants were unaware of the material information that Home Capital had withheld." None of the allegations have been proven in court. Home Capital disclosed in November that West Face had delivered what was, at the time, an un-filed claim seeking damages. The lender said then that it "believes it has valid defences" against the allegations, and pledged to "fully defend its conduct" if West Face filed its claims in court. The statement from Home Capital in November also said the lender would "investigate the conduct of various short sellers and the propriety of their actions whether acting alone or in concert with others." Home Capital's disclosure was the subject of settlements last summer with the Ontario Securities Commission and shareholders who had filed a class-action lawsuit. At issue was the company's public disclosure after it discovered in late 2014 and early 2015 that some mortgage brokers had submitted falsified income information for borrowers. Those problems, and the remedies undertaken to prevent a recurrence, including cutting ties with a number of brokers, caused mortgage originations to drop. The class-action lawsuit was settled in August for $29.5 million. The court document filed by West Face says the alternative asset manager opted out of the class-action settlement "on the basis that investors who purchased common shares of Home Capital to close out a short position were excluded from compensation under the settlement terms." A West Face spokesperson said the firm is raising its claim directly with Home Capital because it has a fiduciary duty to protect its investors "who were excluded from the class-action proceeds." [GN] HOME POINT FINANCIAL: "Noroma" Suit to Recover Overtime Pay ----------------------------------------------------------- Brandon Noroma, individually and on behalf of all others similarly situated, Plaintiff, Home Point Financial Corporation and Does 1 through 100, inclusive, Defendant, Case No. 17-cv- 07205, (N.D. Cal., December 19, 2017), seeks to recover unpaid wages and overtime compensation owed, liquidated damages, reasonable attorneys' fees and costs of the action as provided for by the Fair Labor Standards Act. Defendants are in the business of selling loans to consumers. Home Point operates its business throughout the country, including in the State of California where Noroma worked as a mortgage professional. [BN] Plaintiff is represented by: Matthew Righetti, Esq. John Glugoski, Esq. Michael Righetti, Esq. RIGHETTI GLUGOSKI, P.C. 456 Montgomery Street, Suite 1400 San Francisco, CA 94101 Telephone: (415) 983-0900 Facsimile: (415) 397-9005 E-mail: matt@righettilaw.com jglugoski@righettilaw.com mike@righettilaw.com - and - Reuben D. Nathan, Esq. NATHAN & ASSOCIATES, APC 600 W. Broadway, Suite 700 San Diego, CA 92101 Telephone: (619) 272-7014 Facsimile: (619) 330-1819 E-mail: rnathan@nathanlawpractice.com HYATT HOTELS: Livi Appeals E.D. Pa. Ruling to 3rd Circuit --------------------------------------------------------- Plaintiff Nancy Livi filed an appeal from a court ruling in the lawsuit titled Nancy Livi v. Hyatt Hotels Corp, et al., Case No. 2-15-cv-05371, in the U.S. District Court for the Eastern District of Pennsylvania. As previously reported in the Class Action Reporter on Nov. 29, 2017, the District Court had granted the Defendant's Motion for Summary Judgment. Nancy Livi brings suit on behalf of herself and a proposed class of banquet servers against four defendants: Hyatt Hotels Corporation, Hyatt Corporation d/b/a Hyatt at the Bellevue, Defendant Bellevue, Inc. and Bellevue Associates for violations of the Fair Labor Standards Act, the Pennsylvania Minimum Wage Act and the Pennsylvania's Wage Payment and Collection Law, and for Unjust Enrichment. Livi also brings suit on behalf of herself and a proposed sub-class of banquet servers against Hyatt for violation of the Philadelphia Administrative Code. The appellate case is captioned as Nancy Livi v. Hyatt Hotels Corp, et al., Case No. 17-3646, in the United States Court of Appeals for the Third Circuit. [BN] Plaintiff-Appellant NANCY LIVI, on behalf of herself and all others similarly situated, is represented by: Noah I. Axler, Esq. DONOVAN AXLER LLC 1845 Walnut Street, Suite 1100 Philadelphia, PA 19002 Telephone: (267) 534-7400 E-mail: naxler@donovanaxler.com - and - Marc A. Goldich, Esq. 1650 Market Street Philadelphia, PA 19103 Telephone: (267) 534-7400 Defendants-Appellees HYATT HOTELS CORP, HYATT CORP, DBA Hyatt at The Bellevue, BELLEVUE INC and BELLEVUE ASSOCIATES are represented by: Scott F. Cooper, Esq. BLANK ROME LLP 130 North 18th Street One Logan Square Philadelphia, PA 19103 Telephone: (215) 569-5487 E-mail: cooper@blankrome.com - and - Noah A. Finkel, Esq. Cheryl A. Luce, Esq. SEYFARTH SHAW LLP 233 South Wacker Drive, Suite 8000 Chicago, IL 60606 Telephone: (312) 460-5000 E-mail: nfinkel@seyfarth.com cluce@seyfarth.com HYLAND'S HOMEOPATHIC: Consumers Sue Over Teething Tablets Recall ---------------------------------------------------------------- Laurie Villanueva, writing for RX Injury Help, reports that a group of plaintiffs has filed a class action lawsuit against Hyland's Homeopathic which seeks refunds for consumers who purchased products included in a teething tablets recall conducted by the company in 2017. The complaint, which was filed on September 15th in the U.S. District Court, Southern District of New York, claims that Hyland's "falsely advertised its teething products as 'safe,'" leading the plaintiffs to buy the products, "which are now worthless to them and cannot be used given the FDA's concerns about the safety of this medicine." The teething tablets lawsuit also names Standard Homeopathic, Hyland's parent company, CVS Pharmacy and Target as defendants. FDA Teething Tablets Warning Standard Homeopathic Company recalled all lots of Hyland's Baby Teething Tablets and Hyland's Baby Nighttime Teething Tablets in April 2017, after the U.S. Food & Drug Administration (FDA) determined that the products contained inconsistent amounts of belladonna alkaloids that could differ from the calculated amount on the products' labels. Belladonna is often used in homeopathic medications due to its sedative effects. However, exposure to excessive amounts of this ingredient can prove toxic for children, leading to: -- Difficulty breathing -- Lethargy -- Excessive sleepiness -- Muscle weakness -- Skin flushing -- Constipation -- Difficulty urinating -- Agitation -- Seizures -- Death The FDA initially warned parents and caregiver not to give homeopathic teething tablets to children in September 2016, after such products had been tied to hundreds of injuries and 10 infant deaths. According to the agency, many of the reported incidents suggested belladonna poisoning. The FDA's warning prompted CVS, Target and several other retailers to remove homeopathic teething pills and gels from their store shelves. Hyland's Homeopathic also announced that it would stop selling its teething remedies in the U.S. However, the company declined to issue a recall at that time. Teething Tablets Recalls In November 2016, Raritan Pharmaceuticals announced a recall of its homeopathic teething tablets and ear pain remedies after testing confirmed that those products might contain inconsistent amounts of belladonna. Hyland's only agreed to issue its teething tablets recall after the FDA made a formal request. Despite agreeing to the recall, Hyland's and Standard Homeopathic have not acknowledged that the products are dangerous. In fact, the companies are trying to have the teething tablets class action lawsuit dismissed. "Speculation that the products 'may pose' a risk based on alleged inconsistent ingredient levels, or unproven anecdotal claims that a child had a seizure while taking the product, does not establish that the products are unsafe and therefore 'worthless,'" they argued in papers file with the court in December. [GN] INNATE INTELLIGENCE: Judge Dismisses TCPA Claims in Fax Case ------------------------------------------------------------ Sam Knef, writing for St. Louis Record, reports that U.S. District Judge Stephen Limbaugh has dismissed Telephone Consumer Protection Act claims against a number of defendants in a proposed class action. Levine Hat Co. filed its original complaint against Innate Intelligence LLC and Nepute Enterprises LLC in the U.S. District Court for the Eastern District of Missouri. In 2017, the plaintiff amended the complaint to add an additional nine defendants, identified as falling into three groups, some of whom argued for dismissal based on lack of personal jurisdiction. The claims against the defendants included allegations that "opt- out" notices contained in faxes that promoted things such as a "Free Lunch 'n Learn on Stress Management for your employees," did not comply with minimum requirements spelled out by federal statute. The plaintiff alleges that the defendants are directly liable for the alleged TCPA violations because faxes were sent on their behalf and "they are vicariously liable because defendant Innate was their alter ego and/or agent." Defendants in subgroups identified as the Bria, Eyler and Pure defendants argued that they did not have sufficient contacts with Missouri for the court to exercise personal jurisdiction consistent with Missouri's long-arm statute and the requirements of due process. Regarding Pure Family Chiropractic, the court had allowed the plaintiff to take discovery to try to establish that Pure was an alter ego of Innate, and thus subject to personal jurisdiction. "Plaintiff failed to take any discovery," Judge Limbaugh wrote in the Nov. 7 order. "Further, plaintiff's argument in favor of the 'alter ego' analysis is identical to its argument that was rejected by this Court in July. "Based on the foregoing, the Court finds that plaintiffs have failed to allege sufficient facts that the Court may assume personal jurisdiction over the Pure and Eyler defendants under Missouri's long-arm statute and the Due Process Clause," he ruled. [GN] INVENTURE FOODS: 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 Arizona, case no. 2:17-cv-04256, on behalf of shareholders of Inventure Foods, Inc. ("Inventure Foods" or the "Company") (NASDAQ:SNAK) who held Inventure Foods common stock and have been harmed by Inventure Foods' and its board of directors' (the "Board") alleged violations of Sections 14(e), 14(d)(4), and 20(a) of the Securities Exchange Act of 1934 (the "Exchange Act") and SEC Rule 14d-9 in connection with the proposed acquisition of the Company by Heron Sub, Inc., a direct and wholly-owned subsidiary of Utz Quality Foods, LLC (collectively, "Utz"). On October 26, 2017, the Company announced that it had entered into an agreement and plan of merger with Utz, by which Utz will acquire all outstanding shares of Inventure Foods common stock through an all-cash tender offer (the "Tender Offer"). The Tender Offer commenced on November 15, 2017 and is set to expire on December 13, 2017. If you wish to obtain information concerning this action, you can do so by clicking here: www.faruqilaw.com/SNAKnotice Pursuant to the terms of the Purchase Agreement, which was unanimously approved by the Board, Inventure Foods shareholders stand to receive $4.00 per share in cash for each share they own. The complaint claims that this offer is inadequate given Inventure Foods' recent financial performance and strong growth prospects and alleges that the Schedule 14D-9 (the "14D-9") provides materially incomplete and misleading information concerning Inventure Foods' financial projections and the valuation analyses performed by the Company's financial advisor, in violation of Sections 14(e), 14(d)(4), and 20(a) of the Exchange Act. 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, and Pennsylvania. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from December 11, 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: Nadeem Faruqi, Esq. James M. Wilson, Jr., Esq. FARUQI & FARUQI, LLP 685 3rd Avenue, 26th Floor New York, NY 10017 Tel.: (212) 983-9330 Fax: (212) 983-9331 E-mail: nfaruqi@faruqilaw.com jwilson@faruqilaw.com [GN] JAMES HARDIE: Homeowners Have Until Jan. 30 to Join Cladding Case ----------------------------------------------------------------- Times Online reports that East Auckland leaky homeowners have received good news -- their case will proceed as a class action. And others still have until January 30 2018 to join the legal fight against corporate giant and cladding manufacturer, James Hardie. A judgment released in November declined James Hardie's leave to appeal to the Supreme Court meaning the Court of Appeal decision stands, allowing the claim to proceed as a class action, with a final opt-in date of January 30. Leaky building owners represented by Wellington law firm Parker & Associates are encouraging people to move quickly. Thousands of properties were built using Harditex from 1987 until the early 2000s and Titan Board was widely used from 1995. The Howick-Pakuranga area greatly expanded during this time, as many new residential subdivisions were developed, the group's lawyer, Dan Parker said. Parker & Associates is aware there are many owners of properties clad in Harditex or Titan Board in the east Auckland region and have had many enquiries from property owners in this area. "The firm is dealing with a large number of enquiries, many from people who have seen and are responding to the claim for the first time. "A number of owners have approached us unaware of any problems with their properties until expert investigations identify issues. They have subsequently joined the claim," Mr Parker said. "We will be pushing forward now to deal with owner enquiries and to get as many owners signed on as possible. As it is a self- funded action, the bigger the group is, the lower the costs per owner. "The opt-in period will be the last chance for most affected owners to pursue any legal action for recovery of their losses. "If they join during the opt-in period they will not be affected by a 15-year limitation long-stop that will probably otherwise bar claims after the opt-in period expires," Mr Parker said. "Also, the Supreme Court confirmed in 2016 in the leaky schools litigation that the 10 year Building Act limitation long-stop does not apply to a product liability claim like this," The group first brought a product liability claim against James Hardie New Zealand Limited and James Hardie company, Studorp Limited, in negligence and for breach in the Fair Trading Act in 2015. Owners allege that leaks in their homes are attributable to inherent defects in cladding systems manufactured by James Hardie. They also claim James Hardie made misleading statements about its cladding systems in its technical literature. James Hardie denies the allegations. Thousands of properties were built using Harditex from 1987 until the early 2000s. Titan Board was widely used from 1995. Mr Parker urges owners of monolithic clad buildings constructed since 1987 using Harditex or Titan board to get in touch to find out how to opt in to join the claim. Experts can be arranged to investigate whether the materials in question have been used and whether damage has resulted. Because experts need to investigate to determine weather tight issues the law firm is urging people to get in touch sooner rather than later as time is running out to be able to join the class. For further information contact Parker & Associates, 04 499 390 OR www.parkerandassociates.co.nz. [GN] KIMBERLY-CLARK CORP: Wants Court to Block Flushable Wipes Law ------------------------------------------------------------- Amena Saiyid and Josh Block, writing for Bloomberg Law, report that Kimberly-Clark Corp., the leading global tissue maker, will try to persuade a federal judge Dec. 13 to block the District of Columbia from implementing the nation's first-ever law regulating flushable wipes. In seeking an injunction that would prevent the law from taking effect, the manufacturer of flushable wipes sold under the Cottonelle, Scott Naturals, and Pull-Ups Big Kid brands, contends the city's law will penalize the company as soon as it takes effect and argues that it violates the Commerce Clause. The law was supposed to take effect Jan. 1, 2018, but District of Columbia officials said Dec. 8 they wouldn't enforce the law until the D.C. Department of Energy and Environment has written rules to implement it and the associated compliance period expires. Judge James E. Boasberg of the U.S. District Court for the District of Columbia will hear arguments from Kimberly-Clark and the lawyers for the city. Kimberly-Clark wants to block the Nonwoven Disposable Products Act of 2016 until the court has resolved the underlying challenges. The law requires the D.C. Department of Energy and Environment working with the city's sewer and water agency, DC Water, to write rules ensuring that wipes labeled "flushable" are in fact what they claim. Disposable wipes are a big concern for wastewater utilities. Most varieties of disposable, nonflushable wipes, such as those used for makeup removal and baby care, are being flushed anyway, according to DC Water. Nonflushable wipes can gum up sewers and cause costly blockages. No Penalties for Local Retailers Kimberly-Clark claimed in a court filing that the law violates the Commerce Clause because it penalizes out-of-state manufacturers, but has no effect on local retailers who are selling their products. "Local retailers can continue to do whatever they want with flushable wipes -- including making the sales that trigger liability for Kimberly-Clark," the company told the court in a filing. "Defendants do not identify a single labeling law anywhere that works like this one -- by punishing out-of-state manufacturers for permitted sales rather than by controlling what may be bought or sold locally." The city's lawyers disagree with Kimberly-Clark's assertion that local retailers are off the hook. They also say the law has no teeth until the implementing regulations are issued. They point out that the agency hasn't even proposed the rules yet. The National Association of Clean Water Agencies, which represents publicly owned wastewater treatment plants, and the Water Environment Federation, a nonprofit providing education and training for water quality professionals, are backing the District of Columbia law because of the costly problems disposable wipes cause in sewer systems. The case is Kimberly Clark Corp. v. District of Columbia, D.D.C., No. 17-01901, oral arguments 12/13/17. The case in the video above is Kurtz v. Kimberly-Clark Corp., No. 14-CV-1142, 2017 BL 96204 (E.D.N.Y. Mar. 27, 2017) [GN] KINGSBRIDGE MARKETPLACE: Sued by "Estrada" Over Unpaid Overtime --------------------------------------------------------------- Javier Estrada, on behalf of himself and others similarly situated, Plaintiff, v. Kingsbridge Marketplace Corp., Vernon Marketplace, Inc. and Esmail Mobarak, Defendants, Case No. 17-cv- 09890 (S.D.N.Y., December 19, 2017), seeks unpaid wages for off- the-clock work caused by time shaving, unpaid spread-of-hours premium, liquidated damages, statutory penalties and attorneys' fees and costs under the Fair Labor Standards Act and New York Labor Law. Defendants own and operate "Foodtown" supermarkets located at 5555 Broadway, Bronx, NY 10463 where Estrada was employed by Defendants as a stocking clerk regularly working for 12 hours a day for a total of over 68 hours per work-week without overtime pay. [BN] Plaintiff is represented by: C.K. Lee, Esq. Anne Seelig, Esq. LEE LITIGATION GROUP, PLLC 30 East 39th Street, Second Floor New York, NY 10016 Tel: (212) 465-1188 Fax: (212) 465-1181 LANNETT CO: Law Firm Investigates Potential Fiduciary Duty Breach ----------------------------------------------------------------- Shareholder rights law firm Robbins Arroyo LLP is investigating whether certain officers and directors of Lannett Company, Inc. (NYSE: LCI) breached their fiduciary duties to shareholders. Lannett develops, manufactures, and distributes generic versions of brand pharmaceutical products in the United States. Lannett Accused of Colluding With its Peers to Fix Generic Drug Prices Investors of Lannett filed a securities class action complaint against the company's officers and directors for alleged violations of the Securities Exchange Act of 1934 between May 9, 2013 and November 3, 2016. According to the complaint, Lannett conspired with its industry peers to fix the prices of at least four of the company's generic drugs in order to reap higher profits and secure the financing needed to make a series of massive acquisitions. The extent of Lannett's fraud was first revealed on July 16, 2014, when Lannett disclosed that it received an inquiry from the Connecticut Attorney General regarding its pricing of Digoxin. Lannett officials maintained that the company had done nothing wrong while Lannett continued to become the focus of multiple government investigations. On November 3, 2016, Bloomberg reported that Lannett was being investigated by the U.S. Department of Justice for suspected price collusion, causing the company's stock to fall to $17.25 per share that day. Lannett's stock has yet to recover to its class period high of $71.15 per share. Lannett 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] LULAROE CO: Accused of Operating Pyramid Scheme ----------------------------------------------- David Pierson, writing for Los Angeles Times, reports that Betsy Stover was 17 when her mother asked her to help fax strangers, hawking a service that had the markings of a pyramid scheme. "I always felt like a creep sending unsolicited faxes," said Ms. Stover, who hated the chore, but knew the work required cold calls to succeed. Ms. Stover, now a 38-year-old comedian based in Los Angeles, had largely forgotten about the experience until about three years ago. That's when her Facebook feed started filling up with new direct sales posts touting cosmetics, jewelry and leggings. Unbeknownst to her, friends Ms. Stover hadn't seen in years had added her to private Facebook groups promoting body oils and makeup. She had little interest. It felt too similar to her mother's get-rich-quick schemes, which had more to do with recruiting new distributors than selling actual products. "It was super awkward," said Ms. Stover, who discreetly left the groups. "With these people, there was always a looming sales pitch in the background." Unsolicited calls and face-to-face pitches once defined multilevel marketing -- a $35-billion industry that recruits an ever expanding network of independent distributors to sell their products rather than rely on bricks-and-mortar stores. Instead, today's generation of multilevel marketing brands including Rodan + Fields, Stella & Dot and LipSense are often discovered on social media platforms such as Facebook, which gives distributors instant access to a vast network of potential customers and recruits with the swipe of a finger. Rather than suffer the humiliation of cold calling, adherents can blast sales pitches and promote their brands online with little effort, attracting increasingly distant acquaintances who would have been previously unreachable. It's why many women such as Stover have seen their news feeds transformed from a place to keep up with friends and family into a clutter of livestreamed sales events, invitations to trunk shows and incessant promotional threads about moisturizers and lipsticks. "This is what multilevel marketing has always done," said Robert FitzPatrick, president of watchdog group Pyramid Scheme Alert. "It is the only business that ignores the boundaries of private life and professional life. It simply follows where people are gathered, and now that people communicate on digital forums like Facebook, it has invaded social networks." No recent company exemplifies the industry's shift more fittingly -- and controversially -- than LuLaRoe, a Corona multilevel marketing brand that through Facebook developed a cult-like following for its patterned leggings and is now the target of five class-action lawsuits. One of those suits, filed in October, seeks $1 billion in damages and alleges LuLaRoe operated a pyramid scheme, enriching itself by primarily selling inventory to its distributors, or sales consultants, rather than its customers. The plaintiffs say the company did this by using social media to lure a sales force mostly made up of stay-at-home mothers into paying thousands of dollars to become consultants with dim hopes of turning a profit. "Defendants achieved such rapid growth by enticing consultants with social media posts boasting large bonus checks and other lavish material possessions," the suit says. Those rewards were celebrated with the hashtag #becauseofLLR. Another popular social media slogan, "Part-time work for full time pay," has been chided by critics as mostly untrue except for those lucky enough to get in on the business early. LuLaRoe, which was founded in 2012 and surpassed $2 billion in annual sales this year, called the lawsuits baseless. The company said it has given thousands of consultants the opportunity to earn income. And it rejected allegations it was a pyramid scheme, explaining it does not reward consultants for simply signing up new sellers, but instead offers bonuses based on a cut of retail sales achieved by a consultant's recruits. Only 27% of LuLaRoe's consultants received such bonus payments last year, which means about a quarter of the company's consultants were involved in recruiting and maintaining a sales team -- the multilevel part of multilevel marketing. "LuLaRoe has grown exponentially over the last four years. Our success has made us the target of orchestrated competitive attacks and predatory litigation. We take all litigation -- regardless of its lack of merit -- seriously," the company said in a statement. In addition to the pyramid scheme claims, LuLaRoe has been saddled with complaints about shoddy merchandise, an unfair return policy and unsympathetic leadership (consultants say the company pressured mothers to sell their breast milk to pay for more inventory). "It was an endless chain. They always wanted you to buy more," said Pamela Winkelman, a Minnesota consultant who was introduced to LuLaRoe over Facebook and is a member of the $1-billion class action. Before the lawsuits, LuLaRoe had built an ultra-loyal following thanks to its buttery soft leggings. The company's embrace of all body types positioned it as something of an anti-Lululemon, the maker of pricey yoga pants whose former chief executive once suggested its clothes weren't appropriate for bigger women. By 2015, LuLaRoe had become a social media sensation. Its clothes couldn't be found at stores or e-commerce sites. Instead, women had to join private Facebook groups run by the company's consultants. Once in, they had to hope the seller had their size and pattern -- not an easy task because consultants had no say over what pieces LuLaRoe would give them to sell. Those restrictions on supply sparked a frenzy. Women joined multiple Facebook groups scavenging for rare leggings -- known as unicorns -- with playful prints such as purple dragons or the solar system. Eventually, unicorns would show-up on EBay for double or triple their typical $25 sticker price. The clamor for leggings also boosted the ranks of consultants, who were charged a minimum of $5,000 for their initial batch of inventory. LuLaRoe had about 30,000 consultants by the middle of 2016. Since then, the number has grown to more than 80,000. "I never would have heard of LuLaRoe if it wasn't for Facebook," said a 31-year-old consultant in Southern California who didn't want to use her name for fear of reprisal from the company. (She is not a member of any of the lawsuits directed at LuLaRoe). "I saw how these women were buying these crazy prints left and right. I figured there was a lot of money to be made," she added. The mother of two signed-up as a LuLaRoe consultant in 2015 and initially made a tidy profit. But within months, her suburban neighborhood was saturated with rival consultants who cut her earnings by two-thirds. "Now I'm sitting on $22,000 of inventory in my spare bedroom that I can't move," she said. Consultants say new recruits were being minted each day, in no small part because of LuLaRoe's pervasiveness on Facebook. They say the company drove up engagement on the platform by encouraging consultants to post and comment as much as possible. It also urged consultants to launch Facebook business pages from which they could place ads. LuLaRoe says it was its consultants who pioneered the company's Facebook strategy. The brand adopted the strategy because it allowed consultants to interact more intimately with customers in a manner similar to salespeople in bricks-and-mortar stores. "[W]e want to help get you to a place where you are a Facebook diva and your Facebook group isn't just helping your business it's practically running it for you," the company says in a Facebook strategy tutorial posted on its website. The Facebook groups, which routinely had hundreds of members, had a culture of their own. Negative comments about the brand were frowned upon. Acronyms such as FSOT (for sale or trade) and DISO (desperately in search of) abounded. "Roe" became a blanket verb, said Jill Robbins, a San Antonio blogger who wrote about her observations as a member of several LuLaRoe Facebook groups. "I found a lot of people who drank the Kool-Aid," Robbins said. LuLaRoe rose as the number of people involved in all manner of direct selling in the U.S. grew to a record 20.5 million in 2016, up from 15.9 million in 2012, according to the Direct Selling Assn. Experts say economic insecurity born out of the Great Recession has pushed more Americans to multilevel marketing -- not unlike the way people have seized on the gig economy working for companies such as Uber. With her background in direct sales, LuLaRoe co-founder DeAnne Brady has said she started the company envisioning a sales force of mothers who could earn income while raising children. Jessica Wernz, a writer focused on family issues, says direct selling appeals to women in several ways: It offers a path to entrepreneurship and a promise of "sisterhood" to stay-at-home moms who otherwise struggle to find time for socializing. And it gives mothers in the workforce an alternative source of income that allows them to spend more time with their children. What troubles Ms. Wernz is that it perpetuates the idea that mothers are best suited at home, not in an office. "I love the idea of empowering women, but this is the exact opposite," she said. "These companies are selling them on the idea that they'll miss their kids' childhoods if they have to go into an office." Facebook has taken a hands-off approach to multilevel marketing, saying it has no reason to limit the industry's presence on the social network. A Facebook spokesman declined to share any data about LuLaRoe. The deluge of posts about direct sales can easily be removed by selected "hide post" next to any unwanted content, the spokesman added. Otherwise, posts about LuLaRoe and other multilevel marketing brands are subject to the whims of Facebook's algorithm like most other topics. The rules are different for paid ads. Facebook requires multilevel marketing brands to "fully describe the associated product or business model" and never to "promote business models offering quick compensation for little investment." However, LuLaRoe consultants interviewed for this story who placed ads on Facebook say they never disclosed such information. Facebook also prohibits ads and landing pages from containing "deceptive, false, or misleading content, including deceptive claims, offers, or methods." Even if Facebook decided to banish pyramid schemes from its networks, it would have a hard time determining which companies to target. Pyramid scheme isn't a legal term, and the nation's laws are notoriously vague about what it means. Most experts and industry officials, including those at the Direct Sales Assn, say the bar for a scam is when the majority of revenue is derived from recruiting new consultants rather than sales. But others say that's not enough. They argue the majority of multilevel marketing is predatory because it's founded on the false promise of quick returns, when in reality, the overwhelming majority of consultants lose money. "I've never once met a single person who earned income in multilevel marketing sustainably from retailing," said FitzPartick of Pyramid Scheme Alert. "The model is impossible." Mr. FitzPatrick said legal ambiguity and powerful lobbying has protected multilevel marketing, an industry with close ties to the Trump administration. Secretary of Education Betsy DeVos is married to former Amway CEO Dick DeVos, the son of Amway co- founder Richard DeVos. President Trump was once a paid promoter of direct sales firm ACN Inc. Some of the biggest names in the industry, including Amway, Avon and Mary Kay have survived scrutiny for decades. Other stalwarts such as Herbalife and Nu Skin have paid millions in settlements, while upstarts such as beverage distributor Vemma Nutrition were effectively shuttered by the Federal Trade Commission. LuLaRoe needs to take its consultants' concerns more seriously if it hopes to continue growing, said Terri Villasenor. The Whittier resident signed up with the brand in August 2016 and believes it expanded too fast. "The first three months were OK, but then it plateaued because they were saturating the market," said Ms. Villasenor, 55, who gave her middle and maiden names because she worried LuLaRoe would retaliate. She's now stuck with 200 pieces of clothing no one wants to buy. She has no intention of purchasing any more inventory. Though not a member of any of the lawsuits against LuLaRoe, Ms. Villasenor is encouraged that disgruntled consultants are fighting back. Dissenters are even exchanging ideas through private Facebook groups -- much like the ones they started to lure recruits and customers. The forums can feel liberating to consultants such as Ms. Villasenor, who were wary of questioning LuLaRoe's business until they saw others come forward. "I felt like I was stuck in a cult," she said. [GN] LYFT INC: Settles Class Action Over Toll Charges ------------------------------------------------ Sara McCleary, writing for Legal Newsline, reports that after receiving a positive ruling from a federal judge, ride share company Lyft has agreed to settle a lawsuit filed against it by a New York plaintiff who had sought class action certification for his suit over toll charges. In a June 26 opinion, the court granted Lyft's motion to compel arbitration. On Aug. 1, plaintiff Josh Applebaum and Lyft filed a stipulation of dismissal, agreeing to dismiss Applebaum's individual claims with prejudice and those of the other class members without prejudice. Mr. Applebaum had filed his case in the U.S. District Court for the Southern District of New York in 2016, alleging that Lyft overcharged customers by charging the full, non-discounted cash rate of tunnel and bridge tolls, rather than the discounted E-Z Pass rate that drivers actually pay. Mr. Applebaum claimed that Lyft misled consumers, making them believe they would only be charged the discounted rate. He sought reimbursement, disgorgement of profits, an injunction to stop the overcharging, attorneys' fees, and special damages. Though Mr. Applebaum sought a trial by jury, Lyft filed a motion to dismiss the case, or in the alternative, stay the action and compel arbitration as per its terms of use. The company argued that Mr. Applebaum had agreed to its Feb. 8, 2016, terms of service, which included a provision to arbitrate all disputes between himself and Lyft, by clicking a box confirming "I agree to Lyft's terms of service" when signing up. The court found that the presentation of the agreement -- that is, that the user could click the box without opening or reading the agreement and Lyft had not made clear the importance of the agreement -- meant that a reasonable consumer could not have been expected to be aware that they were accepting the arbitration agreement. Therefore, "the plaintiff cannot be bound by the arbitration provisions in that contract," reads Judge John G. Koeltl's June 26 decision. Lyft was successful, however, in its argument that Mr. Applebaum had agreed to its updated Sept. 30, 2016, Terms of Service, "which were presented to him as a scrollwrap agreement," according to Judge Koeltl. This time, the screen shown to users stated explicitly "Before you can proceed you must read & accept the latest terms of service" and required users to click on a bar that read "I accept." The court further addressed Mr. Applebaum's contention that his claims were outside the scope of the arbitration agreement. It pointed to agreement's provision that called for all disputes about the arbitrability of an issue to be decided by the arbitrator. [GN] MARVELL TECHNOLOGY: Court Certifies Class in Shareholder Case ------------------------------------------------------------- The following statement is being issued by Robbins Geller Rudman & Dowd LLP regarding the Marvell Technology Group, Ltd. Class Action: TO: ALL PERSONS AND ENTITIES WHO PURCHASED OR OTHERWISE ACQUIRED THE COMMON STOCK OF MARVELL TECHNOLOGY GROUP, LTD. DURING THE PERIOD FROM FEBRUARY 19, 2015 THROUGH DECEMBER 7, 2015, INCLUSIVE PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY. YOUR RIGHTS MAY BE AFFECTED BY A CLASS ACTION LAWSUIT PENDING IN THIS COURT. YOU ARE HEREBY NOTIFIED, pursuant to a Court Order dated October 27, 2017, that a Class has been certified in a class action entitled Luna v. Marvell Technology Group, Ltd., et al., No. 3:15-cv-05447-WHA (the "Action"), which is now pending before the United States District Court for the Northern District of California (the "Court"). The Action is brought on behalf of all persons and entities who purchased shares of Marvell Technology Group, Ltd. ("Marvell") common stock during the period from February 19, 2015 through December 7, 2015, inclusive (the "Class"). Lead Plaintiff, on behalf of the Class, alleges that Defendants made false and misleading statements and/or failed to disclose adverse information regarding Marvell's business, operations and prospects, including that Marvell reported revenue and earnings during the Class Period that were misleading as a result of undisclosed pull-in sales. Defendants deny any wrongdoing or having violated any provisions of the 1934 Act. The Court has certified the following Class of plaintiffs: All persons and entities who purchased or otherwise acquired the common stock of Marvell Technology Group, Ltd. ("Marvell" or the "Company") during the period from February 19, 2015 through December 7, 2015, inclusive (the "Class Period"), and were damaged thereby. Excluded from the Class are investors who sold all of their shares prior to September 11, 2015, and Defendants, present or former executive officers of Marvell and their immediate family members (as defined in 17 C.F.R. Sec. 229.404, Instructions (1)(a)(iii) and (1)(b)(ii)). On December 4, 2017, a Notice of Pendency of Class Action (the "Notice") was mailed to persons who purchased or otherwise acquired Marvell common stock during the Class Period, as reflected on the books and records of Marvell and its transfer agent. The Notice contains important information regarding the rights of Class members, including the right to seek exclusion from the Class and the deadline for doing so. If you believe you are a member of the Class as defined above, and if you have not received a copy of the Notice by mail, you are urged to request a copy free of charge by mailing your request to Luna v. Marvell Technology Group Ltd, et al., c/o Gilardi & Co. LLC, Post Office Box 404041, Louisville, KY 40233-4041. You may also download a copy of the Notice at www.MarvellSecuritiesClassAction.com Questions may also be directed to: SCOTT H. SAHAM ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, California 92101 [GN] MASSACHUSETTS MUTUAL: Vitale Appeals Judgment in "Bacchi" Suit -------------------------------------------------------------- Class member and interested party Francis Vitale filed before the First Circuit Court of Appeals an appeal from the memorandum and order, and judgment entered on November 8, 2017, in the lawsuit entitled Bacchi v. Massachusetts Mutual Life Insurance Company, Case No. 1:12-cv-11280-DJC (D. Mass.). The rulings granted final approval to the $37.5 million class settlement in the lawsuit. The appellate case is captioned as KAREN L. BACCHI, individually and on behalf of all persons similarly situated, Plaintiff - Appellee v. FRANCIS VITALE, Class Member, Interested Party - Appellant; MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, Defendant; BABSON CAPITAL MANAGEMENT LLC, Movant; and CHRISTINA CHAVEZ; MICHAEL D. MYERS; CAROLINE TUCKER, Interested Parties, Case No. 17-2190, in the United States Court of Appeals for the First Circuit. As previously reported in the Class Action Reporter on Dec. 11, 2017, interested party Caroline Tucker also filed an appeal from the ruling. On November 8, 2017, Judge Denise J. Casper granted final approval to the class settlement in the case. The settlement provides for a common fund of $37.5 million for class members, MassMutual will continue for at least ten years to provide safety fund calculations to the Massachusetts Division of Insurance and MassMutual will pay the costs and expenses for administrating and distributing the settlement funds to class members (an expense that Plaintiffs estimate to exceed $3 million). Over five years ago, Ms. Bacchi brought the action against MassMutual on behalf of a purported class of similarly situated MassMutual policyholders asserting claims regarding MassMutual's safety fund calculation, alleging that the company retained monies that it should have distributed to policyholders as dividends. After several years of hard fought litigation between the parties and a mediation that resulted in the proposed settlement, the Court preliminarily granted approval of that settlement agreement and certification of the class for this purpose, approved the procedure for providing notice to the class of same and scheduling a hearing for consideration of the final approval of the settlement and determination of any fee awards.[BN] Plaintiff-Appellee Karen L. Bacchi, Individually and on Behalf of all Persons Similarly Situated, is represented by: Jason B. Adkins, Esq. John P. Zavez, Esq. ADKINS, KELSTON AND ZAVEZ, P.C. 90 Canal St., Suite 500 Boston, MA 02114-0000 Telephone: (617) 367-1040 Facsimile: (617) 742-8280 E-mail: jadkins@akzlaw.com jzavez@akzlaw.com - and - Andrew S. Friedman, Esq. Francis J. Balint, Jr., Esq. BONNETT FAIRBOURN FRIEDMAN & BALINT, P.C. 2325 E. Camelback Road, Suite 300 Phoenix, AZ 85016 Facsimile: (602) 274-1199 Telephone: (602) 274-1100 E-mail: afriedman@bffb.com fbalint@bffb.com - and - F. Paul Bland, Esq. PUBLIC JUSTICE 1825 K Street NW, Suite 200 Washington, DC 20006 Telephone: (202) 797-8600 E-mail: pbland@publicjustice.net - and - Mark A. Chavez, Esq. CHAVEZ & GERTLER 42 Miller Avenue Mill Valley, CA 94941-5572 Telephone: (415) 381-5599 E-mail: mark@chavezgertler.com Defendant Massachusetts Mutual Life Insurance Company is represented by: James R. Carroll, Esq. Kurt Wm. Hemr, Esq. Alisha Quintana Nanda, Esq. SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 500 Boylston Street Boston, MA 02116 Telephone: (617) 573-4800 Facsimile: (617) 573-4822 E-mail: James.Carroll@skadden.com kurt.hemr@skadden.com Alisha.Nanda@skadden.com - and - Scott T. Lashway, Esq. MASSMUTUAL FINANCIAL GROUP 1295 State Street Springfield, MA 01111 Telephone: (413) 744-7383 E-mail: scott.lashway@hklaw.com Movant Babson Capital Management LLC is represented by: Kurt Wm. Hemr, Esq. SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 500 Boylston Street Boston, MA 02116 Telephone: (617) 573-4800 Facsimile: (617) 573-4822 E-mail: kurt.hemr@skadden.com Interested Party and Objector Christina Chavez is represented by: Mary T. Rahmes, Esq. Timothy Morris, Esq. GIANELLI & MORRIS, ALC 550 S. Hope St., Suite 1645 Los Angeles, CA 90071 Telephone: (213) 489-1600 E-mail: mary.rahmes@gmlawyers.com tim.morris@gmlawyers.com Interested Parties and Objectors Christina Chavez and M.D. Michael D. Myers are represented by: Mark F. Murphy, Esq. MARK MURPHY LAW OFFICES, LLC 30 Walpole Street Norwood, MA 02062 Telephone: (781) 762-0088 Facsimile: (781) 762-3133 E-mail: mmurphy@markmurphylaw.com Interested Party and Objector Caroline Tucker is represented by: Mardi Harrison, Esq. LAW OFFICE OF MARDI HARRISON 125 Edison Furlong Road Doylestown, PA 18901 Telephone: (267) 252-1035 E-mail: mardi@suetheboss.com - and - Elaine W. Sharp, Esq. WHITFIELD SHARP & SHARP 196 Atlantic Avenue Marblehead, MA 01945 Telephone: (781) 639-1862 Facsimile: (781) 639-1771 E-mail: elainesharp@sharplaw.net MECTA CORPORATION: Riera Seeks Cert. of Patients, Spouses Classes ----------------------------------------------------------------- The plaintiffs in the lawsuit titled JOSE RIERA; MICHELLE HIMES; DIANE SCURRAH; DEBORAH CHASE; MARCIA BENJAMIN and DANIEL BENJAMIN, individually, and on behalf of all others similarly situated v. MECTA CORPORATION; SOMATICS, LLC; and DOES 1 through 10, inclusive, Case No. 2:17-cv-06686-RGK-PJW (C.D. Cal.), ask the Court to certify these classes: (1) All individuals in the United States who received ECT treatment in California, and suffered resulting injuries from May 28, 1982 through to the date of judgment, where such treatment was administered by an ECT device manufactured, sold, and/or distributed by either Defendant, Mecta or Somatics, after May 28, 1982; and (2) The spouses of the patients who have suffered related loss of consortium damages. The Court will hold a hearing on the Motion on January 22, 2018, at 9:00 a.m. A copy of the Notice of Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=oPFSwxtm The Plaintiffs are represented by: David M. Karen, Esq. Kimberly K. Offenbacher, Esq. Connor M. Karen, Esq. DK LAW GROUP, LLP 3155 Old Conejo Road Thousand Oaks, CA 91320 Telephone: (805) 498-1212 Facsimile: (805) 498-3030 E-mail: dk@dk4law.com ko@dk4law.com cmk@dkylaw.com MEDICAL DATA: "Patti" Suit Seeks Redress for Collection Letters --------------------------------------------------------------- CANDICE PATTI v. MEDICAL DATA SYSTEMS, INC., d/b/a MEDICAL REVENUE SERVICE, Case No. 0:17-cv-62424-WPD (S.D. Fla., December 10, 2017), alleges violations of the Fair Debt Collection Practices Act and the Florida Consumer Collection Practices Act. On behalf of the putative classes, the Plaintiff seeks redress for the alleged unlawful conduct of the Defendant in dispatching thousands of unlawful collection letters to Florida consumers, whereby each such letter contains identical violations of Section 1692e(11) of the FDCPA. Medical Data Systems Inc. is a Florida corporation, with its principal place of business located in Vero Beach, Florida. It engages in interstate commerce by regularly using telephone and mail in a business whose principal purpose is the collection of debts.[BN] The Plaintiff is represented by: Jibrael S. Hindi, Esq. THE LAW OFFICES OF JIBRAEL S. HINDI 110 SE 6th Street, Suite 1744 Fort Lauderdale, FL 33301 Telephone: (954) 907-1136 Facsimile: (855) 529-9540 E-mail: jibrael@jibraellaw.com MEDICIS PHARMA: March 12 Trial Set in Solodyn(R) Class Action ------------------------------------------------------------- If you paid for Solodyn(R), a class action lawsuit may affect your rights You may be affected by a class action lawsuit against Medicis Pharmaceutical Corp., and Impax Laboratories, ("Defendants"). The lawsuit claims that Defendants unlawfully delayed the availability of allegedly less-expensive generic versions of Solodyn and that Defendants' conduct caused certain consumers and third-party payors to pay too much for Solodyn in these states and territories. Defendants deny any wrongdoing. ARE YOU AFFECTED? As a consumer, you may be a member of the End-Payor Class if after July 23, 2009 you purchased or paid for some or all of the purchase price for 45mg, 55mg, 65mg, 80mg, 90mg, 105mg, 115mg, and/or 135mg Solodyn and/or its generic versions of one or more of these dosages, in the United States and its territories, including Puerto Rico, in tablet form, for consumption by yourself or your family. Purchases made directly from Defendants, for resale purposes, for fixed dollar co-payments that do not vary between brand and generic drug, through Medicaid, or consumers who purchased Solodyn prior to July 23, 2009 are not included. YOUR RIGHTS AND OPTIONS DO NOTHING: If you do nothing you are choosing to stay in the End-Payor Class and you will be able to share in any money or benefits that may occur in this case. You will be bound by all orders and judgments of the Court and you will give up your right to sue the Defendants as part of any other lawsuit for the claim made in this case. EXCLUDE YOURSELF FROM THE END-PAYOR CLASS: If you exclude yourself from the End-Payor Class (i.e. opt out), you will not be entitled to money or benefits if they are awarded or obtained. You will be bound by all orders and judgments of the Court and you will give up your right to sue the Defendants as part of any other lawsuit for the claim made in this case. The deadline to exclude yourself from the End-Payor Class is February 10, 2018. THE TRIAL The Court will hold a trial in this case on March 12, 2018 at the United States District Court for the District of Massachusetts, 1 Courthouse Way Boston, Massachusetts 02210. You may hire your own lawyer at your own expense, but you do not have to. WANT MORE INFORMATION? Go to www.SolodynCase.com, call 1-800-332-7414, or write to In re Solodyn Antitrust Litigation (End-Payor Action), P.O. Box 173034, Milwaukee, WI 53217. [GN] MERIDIAN BIOSCIENCE: Faces Shareholder Class Actions ---------------------------------------------------- 360Dx reports that two class action lawsuits have been filed on behalf of Meridian Bioscience shareholders stemming from the recalls of lead poisoning tests and test systems by the company's Magellan Diagnostics subsidiary. The class action suits were filed by Rosen Law Firm and by the Klein Law Firm on Dec. 11 on behalf of purchasers of Meridian Bioscience securities between March 25, 2016 and July 13, 2017. Both suits allege that the defendants provided false or misleading statements related to lead test results that were inaccurate, and they seek to recover damages suffered by investors. Magellan Diagnostics announced in May 2017 that it was recalling lead poisoning tests and test system due to inaccurate test results, following a warning from the US Food and Drug Administration. Earlier that month, the FDA and the Centers for Disease Control and Prevention recommended retesting people who were tested for lead levels with Magellan's products, after data suggested inaccurate results from tests performed on blood drawn from a vein. The FDA and CDC both reported that data indicated results from tests might have been lower than the actual level of lead in the blood. Samples from finger pricks and heel sticks were not affected. In October, the FDA issued a warning letter to Magellan Diagnostics alleging several violations of federal law, including marketing "significantly modified versions" of two blood-based lead testing systems without the FDA's required clearance or approval. Both law firms said that shareholders have until January 16, 2018 to petition the court if they want to serve as lead plaintiff. Shareholders who do not petition the court may remain as absent class members and would still share in the recovery. The suit filed by Klein was filed in the US District Court for the Southern District of Oho, according to the firm's statement. It was not clear in which court Rosen Law Firm filed its suit. Attorneys at the firms did not return calls or emails. In afternoon trading on the Nasdaq, Meridian's shares were up more than 1 percent to $14.30. [GN] MINED MINDS: Faces Class Action Over Fraudulent Training Program ---------------------------------------------------------------- Annie Moore, writing for WVVA, reports that when Ty Cook and Tori Frame first heard about Mined Minds, Cook was a bank teller and Frame worked in the retail industry. They decided to take a chance on the non-profit claiming to re-train coal miners and others for high-paying coding jobs in the tech industry. Mr. Cook cut his hours at the bank from full-time to four-hours a week. Ms. Frame quit her job altogether. Both claimed they were promised minimum wage to participate. "We became suspicious on day one when we learned there was no pay. We were told to quit our jobs but come everyday to still study. Later on, we did research in the tech world and realized we don't have the skills people are asking for with these tech jobs," explained Cook. Mr. Cook quit the program in November and Ms. Frame followed suit. "We got more suspicious when we saw articles where there were issues in Pennsylvania and the company's problems there. That's when I became very concerned about my future with Minded Minds." Mr. Cook and Ms. Frame are have joined several others in a class- action lawsuit against Mined Minds filed on Dec. 7 by Beckley attorneys Adam Taylor and Stephen New. The suit seeks damages for fraud, breach of contract, and breach of fiduciary duty. "Based on the information we're getting, it was run very haphazardly," said Mr. Taylor. "The instructors were under- qualified. It was very unorganized. It was nothing to merit the devotion these students gave." In an interview with Minded Minds founder Amanda Laucher, she claimed the non-profit never promised pay. She said their first graduating class had four students who were hired internally, three hired in tech jobs outside the company, one who retired, and two who were let go during their apprenticeship for policy violations. "No student has ever received money from Mined Minds to attend our free training class and there has never been a mention of a stipend anywhere in Mined Minds documentation. The vast majority of Americans pay for their education. We are shocked and saddened that this young couple would believe that they deserve compensation in addition to free training." On Dec. 12, 2017, Ms. Laucher said the company graduated four more students, all of whom were offered jobs inside Mined Minds. "We expect four more graduates. All will have offers." According to a Pittsburgh CBS-affiliate KDKA story in November 2017, Mined Minds was forced to quit their operations in Pennsylvania because of a cease and desist letter from the state Department of Education demanding they be licensed as a school. Instead of requesting a hearing or applying for a license, Mined Minds folded their training operations there. Ms. Laucher confirmed their decision not to seek licensure on Dec. 12, saying "the associated fees are prohibitive to us obtaining that license." According to New, Mined Minds has built their operations in West Virginia in the last two years with considerable help from federal funds. "We have it on good authority that perhaps as high as 1.8 million in federal funding was used to start up these programs and bring jobs in the tech sector to West Virginia. But clearly they never intended to follow through on that promise." "It's a violation of the student's trust. It's a violation of the public's trust. The public gives that money to the Appalachia Regional Commission (ARC) to develop under privileged areas like Southern West Virginia. The program was marked to place coal miners in high-tech jobs. And the money wasn't used for that purpose." Ms. Laucher also fired back at those claims, saying the company has only spent $60,000 of a $700,000 grant awarded through the ARC, most of which was spent on teacher pay. As for Cook and Frame, Ms. Laucher said "Tori and Ty were both within days of completing the initial training and were to be offered a paid apprenticeship position upon completion. The dating couple both dropped out of class in support of Tori's mother, who was asked to leave the class because of unprofessional behavior, sexual harassment and sexual assault complaints from four different team members while traveling to a tech conference in Europe. We have written complains on file as well as the record of a detailed letter asking Stephanie not to return to class." But when pressed on whether any of the team members filed police reports, Ms. Laucher said the matter was handled internally. New responded to those allegations saying one of the team members Ms. Laucher is referring to denies he was sexually harassed or assaulted. In fact, he said he too has joined the class action suit seeking damages from Mined Minds. [GN] MONITRONICS INT'L: Settles Class Action Over Illegal Robocalls -------------------------------------------------------------- Al Vaughters, writing for WIVB, reports that when the phone rings at Gary Gotsch's home in the Town of Evans it is likely to be a telemarketing call he does not want, or an illegal robocall trying to sell him something he does not need. The retired safety manager's enrollment in the Do Not Call registry seems to be irrelevant. "I get approximately 70 to 80 phone calls a month -- unwanted phone calls, unknown phone calls -- from all over the country." So Gotsch can sense a scam when he sees it, and when he got a postcard in the mail, asking for personal information to claim a share of a class action settlement, Gary had his suspicions. "It tells me to send in the postcard, with my phone number, to get a check back as a settlement claim, or go on the website." Gary contacted Call 4 Action, and is now able to let his guard down -- the card is legitimate, the settlement is real. Millions of cards like Gotsch's are being sent to phone customers all over the country, informing them of a $26 million class action settlement, involving a company called Monitronics International. The lawsuit centers on complaints accusing Monitronics -- or marketing firms linked to Monitronics -- of initiating illegal robocalls to consumers, or unauthorized calls to consumers who, like Gary, are on the Do Not Call registry. Attorneys involved in the litigation estimate consumers' share of the settlement could range from $15 to $25. Gary feels it is better than nothing, "if they have a lump sum settlement, the lawyers are going to get their big share of it, but if everybody else can get something out of it, why not?" The retired Evans homeowner is relieved someone seems to be paying for violating the Telephone Consumer Protection Act, designed to protect consumers from bothersome telemarketers, but Gotsch would like to see the government step up its enforcement of the law. How does Gary feel about that class action settlement? "I've now got the postcard filled out, ready to send in to see what happens." Attorneys say the amount consumers receive from the class action settlement will depend on how many people return those cards. A federal judge in West Virginia will determine the final amount sometime next year. You can get more information on the class action lawsuit by logging onto the official settlement website at http://www.monitronicstcpalawsuit.com/[GN] MONKEY CAPITAL: "Hodges" Claims Monkey Coin a Fraud --------------------------------------------------- Andrew Hodges, Vladimir Cood, Gautam Desai, Jody Powell, Jeffrey Heberling and Shammi Nabukumar, individually and on behalf of all others similarly situated, Plaintiffs, v. Monkey Capital, LLC and Daniel Harrison, Defendants, Case No. 17-cv-81370 (S.D. Fla., December 19, 2017), seeks to enjoin Defendants from making further transfers or dissipations of the investment funds and assets raised in connection with the promoted cryptocurrency, or using such funds and assets in any further purchases or transactions, equitable restitution, including, without limitation, rescission of their investments in Monkey Capital, restoration of all cryptocurrency or fiat currency paid to Defendants, compensatory damages, punitive damages, incidental damages and consequential damages, prejudgment and post-judgment interest, attorneys' fees, expenses and the costs of this action in violation of the Securities and Exchange Act and Florida's Deceptive and Unfair Trade Practices Act. Defendants allegedly developed a unified network of data distribution with respect to virtual capital assets, as well as a private cryptocurrency exchange and decentralized hedge fund. Their cryptocurrency called Monkey Coin purportedly would skyrocket in demand and value once the Monkey Capital Market was launched on August 8, 2017. The launch never occurred and their fundraising website disappeared. Plaintiffs invested their bitcoin with Monkey Capital and claim returns for their investment. [BN] Plaintiffs are represented by: David C. Silver, Esq. Jason S. Miller, Esq. SILVER MILLER 11780 W. Sample Road Coral Springs, FL 33065 Telephone: (954) 516-6000 E-mail: DSilver@SilverMillerLaw.com JMiller@SilverMillerLaw.com NASPERS: Faces Three Investigations Amid Class Action ----------------------------------------------------- Ferial Haffajee, writing for Huffington Post, reports that "This company is aggressive and entrepreneurial. We often go with our gut," says a MultiChoice executive to explain revelations of the company's negotiating tactics, which have landed its parent company Naspers in a mighty pickle. Naspers is facing three investigations: a litigious class action by a US law firm is exploring the allegations; a parliamentary inquiry on the scale of the Eskom probe is being planned for early 2018; and MultiChoice's board is engaged in a probe to get to the bottom of the allegations. MultiChoice and Naspers are in the crosshairs of public opprobrium for playing tough tackle in their negotiations to protect their market dominance, but the company says this is standard lobbying. Here's a recap of what's bugging the global Internet and media company: An investigation by News24 into the #Guptaleaks emails revealed how a company regulatory affairs honcho wrote policy for government that landed up on the email servers of the Gupta family after being mailed through by former communications minister Faith Muthambi. A set of minutes, which the DA calls secret, but which MultiChoice says never was, alleges that MultiChoice tied an agreement to pay the SABC for digital channels to support for a position that excluded encryption and protected the company's position. MultiChoice's support and contracts with the National Association of Manufacturers in Electronics components in return for their lobbying against encryption. Analysts say industry incumbents who write policy for government engage in regulatory capture -- this is where private interests drive public policy. In mining, a similar trend is apparent. Special interests that are not immediately visible to the public motivate the writing of draft laws and practices such as aggressive inspections and work stoppages. Standard lobbying Executives at MultiChoice who spoke to HuffPost SA on condition of anonymity are taken aback at the allegations. The company would not formally respond as lobbying and regulatory affairs are part of the ongoing probe at the company. One said that companies often wrote draft policy positions for government as part of the lobbying process. Broadcasting is complex and the South African state's governance thereof has been sclerotic: there have been five communications ministers in the eight years that President Jacob Zuma's been in office. "In lobbying, we are saying what we think the law should say." As to how the email landed up on a Gupta company server, an executive said: "Faith Muthambi told us she didn't like those people [the Guptas] at all." The executive says only 10% of its recommended policy proposals ended up in the final law, which clarified what the respective functions would be of Telecommunications and Postal Services Minister Siyabonga Cwele and the communications minister after Zuma split the department in two. "[It's true], though, that we lobbied everyone and their dog on encryption," said an executive. This is a separate policy to the one that ended up in the hands of Gupta man Ashu Chawla. ANC MP and former communications minister Yunus Carrim says Naspers chairperson Koos Bekker ". . . almost saw himself as an adviser to me [on encryption] as somebody new to the sector. And yet, because of his vested profit and other interests in the pay-tv sector, he obviously couldn't play any such role." A DStv decoder for you, you and you As a young MP, Carrim sat on parliament's communications committee. One day, he remembers a furious Frene Ginwala, who was the National Assembly speaker, calling out MPs for taking MultiChoice's gifts of decoders for MPs. She said it was absurd because "we have to make policy impacting broadcasters". Carrim would like to see an end to gifting by MultiChoice and other government-facing companies, which depend on public regulation or licence to operate. He says the lobbying become more aggressive as certain members of the ANC study group were courted by MultiChoice to take positions against encryption, even though the ANC policy at the time was for conditional access to the set-top boxes that will enable converting old TVs for digital television. "Of course, business should lobby government as vigorously as they want, but they can't seek to buy government policy. Lobbying should be within reasonable limits and within a generally accepted framework of ethics," says Carrim. DA MP Phumzile van Damme says establishing a code of conduct for public policy lobbyists is essential and will be part of an investigation into state capture in the communications sector in the new year. MultiChoice responds "We note that your questions deal with the parameters of an acceptable level lobbying. We think it is inappropriate to deal with that at this time, as the MultiChoice Board's Audit and Risk committees are specifically and currently reviewing these matters. We don't want to pre-empt or influence the outcome of that process. The audit and risk committees are chaired by an independent non-executive Director. Their report will be submitted to the MultiChoice Board on completion of the review. When this process is concluded, we will communicate the outcome." We believe that no improper conduct took place in our meeting with the SABC. It was not a clandestine meeting. The meeting was held at the request of the SABC, on their premises and was recorded. Top management and board members of both parties were represented. No kickbacks were paid. It was a negotiation meeting and the final decision on our proposal lay with the SABC Board. As you know, the Constitutional Court has found in favour of the Minister's policy. Ultimately, the SABC considered its position and decided to enter into the agreement. Our position on encryption of set-top box for digital migration was well known and had been in the public domain. We have a long-standing relationship with the SABC dating back to the early 1980s. The parties have bought and sold content from and to each other for many years and will continue to do so." NEW JERSEY: Faces Class Action Over Women's Prison Sexual Abuses ---------------------------------------------------------------- Ted Sherman, writing for NJ.com, reports that New Jersey's women's prison was hit with a class action lawsuit on Dec. 11, charging state officials with closing their eyes for years to rampant sexual harassment and assaults by guards on inmates. The civil action comes a week after two inmates at the prison in Hunterdon County lodged a separate lawsuit charging they were the victims of repeated assaults or abuse by at least four guards, and faced retaliation when they complained. Attorney Mark Frost of Philadelphia, one of the lawyers in both cases, said the class-action litigation on behalf of all inmates, and anyone who has been released since 2014, was far-reaching. "Prison administrators have had a long history of turning a blind eye and ignoring complaints of sexual harassment by female inmates, which has fostered a climate of systemic sexual discriminatory acts by correction officers at the Edna Mahan Correctional Facility," said Frost. There are currently 613 women incarcerated at the prison in Union Township, where Frost said at least 16 women have been assaulted by prison officers in the past five years. The class-action lawsuit, filed in state Superior Court in Mercer County, charged a pattern of sexual discriminatory acts, alleging the "systematic, inappropriate and illegal treatment of plaintiffs and the other women" being held at the prison, resulting from "a long-standing, prison-wide culture of abuse within the institution," which it claimed was fostered and endorsed by New Jersey Department of Corrections. Named were Gary Lanigan, the commissioner of the department, along with the prison's administrators and at least 10 corrections officers or supervisors at the prison. The lawsuit questioned why male correction officers were allowed "unfettered physical access to female prisoners and their belongings, including permitting them to observe females in a state of undress, in showers, in their living space, and/or permitting male officers to 'pat down' or conduct strip searches of female prisoners, without reason and/or restrictions to their 'private' body parts." A spokesman for the Department of Corrections declined to respond to the allegations in lawsuit. "We do not have a comment; the department does not comment on pending litigation," said Patrick Lombardi. Three inmates were named as plaintiffs on behalf of all women who may have been assaulted at Edna Mahan. One said a corrections officer grabbed her crotch through her clothes and then pressed up against her from behind. She said the officer repeatedly saw her naked after showering. Another penetrated her sexually with his finger. A second woman alleged she had been repeatedly sexually harassed, and then was the target of retaliation after she complained. A third inmate said she was similarly harassed. The prison, which for years reported no cases, or under-reported cases of sexual abuse, has come under growing scrutiny. An NJ Advance Media special report in 2017 documented abuse claims at the women's prison, reporting that officials had fired three officers in 2010 after one was accused of abusing more than a dozen inmates, and tried to keep the disciplinary actions confidential. At the same time, at least five corrections officers and once civilian employee at Edna Mahon have been criminally charged with sexually abusing inmates over the past three years. Bonnie Kerness, who heads the Prison Watch program for the American Friends Service Committee in Newark, said the administrators at Edna Mahan have had a long history of ignoring complaints. "In the over 25 years of monitoring, my experience has been that men in prison will call, write, have families let us and others know exactly what is going on. The women rarely do," she said. "Sometimes this is complete fear, sometimes its the quid pro quo." In the lawsuit filed in state Superior Court, also by Mr. Frost, two other inmates -- both serving lengthy sentences for robbery --said they were forced into sexual acts with a number of corrections officers. They included two officers who have already been criminally charged in cases involving other women incarcerated. Contact between an inmate and an officer is considered sexual assault under state law, which recognizes that prisoners cannot consent to sexual relationships with those charged with overseeing them. [GN] NEW ORLEANS SAINTS: Fan's Anthem Demonstration Suit No Chance ------------------------------------------------------------- Eric Macramalla, writing for Forbes, reports that a New Orleans Saints season-ticket holder is suing the team over players' national anthem demonstrations. The plaintiff, Lee Dragna, is requesting a refund of his ticket costs plus attorney fees. As part of the claim, Mr. Dragna is alleging that he bought the tickets for "entertainment" and "enjoyment" and would never have purchased the tickets had he known that Saints players would use the games as a "platform for protest." Mr. Dragna also claims the players have been "disrespecting the flag, the anthem, the USA and those who have served and are serving the USA in our military." Also according to the claim, Mr. Dragna hasn't been to a game since Week 2 (which is a shame since he's missed out on the live version of Alvin Kamara). As far as the merits of the lawsuit, Mr. Dragna doesn't have a chance. A ticket to a game is a revocable license that grants you access to a sports venue and lets you sit in your seat and use the stadium facilities. Effectively, fans are not entitled to much else beyond access. In addition, that license may be revoked by the team for any reason. Back in 2009, Jets fan Carl J. Mayer launched a class-action lawsuit against the New England Patriots, Coach Bill Belichick and the NFL on behalf of New York Jets season-ticket holders over the Spygate scandal. The lawsuit alleged that by videotaping signals from the Jets' coaches, the Patriots had rigged the games against the Jets, thereby defrauding fans. Both the district and appellate courts dismissed the case. Basically, the courts found that by virtue of his ticket, Mr. Mayer possessed nothing more than a contractual right to a seat from which to watch an NFL game between the Jets and the Patriots, and this right was clearly honored. The District Court wrote that "the uniform weight of established case law holds that a failure to satisfy the subjective expectations of spectators at a sporting event is not actionable under law." The U.S. Supreme Court declined to hear the case. Bottom line is, courts don't care about a fan's expectations going into a sporting event. The only certainty in sports is uncertainty, and to allow this type of lawsuit to get traction would be to open the floodgates to an endless stream of lawsuits filed by disappointed fans. [GN] NEW YORK: Court OKs Inmates' Solitary Confinement Settlement ------------------------------------------------------------ Ashley Southall, writing for New York Times, reports that for years, it was a rule in New York City's jail system: If an inmate at Rikers Island who had been serving a stretch in solitary confinement before release returned to the jail, the person would be forced back into solitary no matter how much time had passed. The city dropped the rule, called the old time policy, in 2015, in response to a lawsuit, but by then hundreds of people had served long stints in solitary confinement at the notorious jail complex. On Dec. 11, a federal magistrate judge in Brooklyn gave preliminary approval to a class-action settlement in which the city agreed to pay a total of $5 million to 470 people who were put in solitary confinement under the policy between Nov. 23, 2012, and Sept. 16, 2015. The lawsuit that prompted the settlement, Roy Parker et al. v. the City of New York, alleged that the practice was inhumane and violated pretrial detainees' due process rights. Judge Cheryl L. Pollak, in her order, said the settlement was "fair and reasonable." Her decision gives the plaintiffs' lawyers, Alexander A. Reinert and Eric Hecker, the green light to start notifying clients to file claims or objections. Under the terms of the settlement agreement, each eligible plaintiff will receive $175 for each day in solitary, and those who were under 18 or had been found to have a serious mental illness will receive $200 per day. "The conditions in solitary confinement at Rikers are awful, and these men and women should not have been there," Mr. Hecker, a lawyer at Cuti Hecker Wang L.L.P., said. "We're happy they are getting some compensation for what they went through." Mr. Reinert, a law professor at the Benjamin N. Cardozo School of Law at Yeshiva University, said he believed this was the first case in the country in which a court awarded compensation to a class of pretrial detainees wrongfully held in solitary confinement. The number of people covered by the class action was limited by a three-year statute of limitations, he said. The settlement comes amid a continuing debate over the use of solitary confinement. While jail and prison authorities and unions have argued that it is a necessary tool to maintain safety and order, former prisoners, researchers and reform advocates say it is overused and harms inmates. Inmates are often sent to solitary confinement as punishment for violating rules, such as by fighting guards or bringing in contraband. Under Mayor Bill de Blasio, who has outlined a plan to close Rikers, the city has moved away from solitary confinement. Nick Paolucci, a spokesman for the city's Law Department, said the agency was "pleased" with the settlement's approval. Rescinding the old policy was one of several reforms adopted by the city and the Department of Correction over the last four years, "which have reduced punitive segregation use by more than 85" percent, he noted. According to the Correction Department, the number of inmates housed daily in "punitive segregation," the term officials use for solitary confinement, decreased to 114 in 2017 from 874 in 2013. [GN] NFL: Judge Brody Blocks Litigation Funding Agreements ----------------------------------------------------- John Freund, writing for Litigation Finance Journal, reports that Judge Anita Brody has issued a ruling in the heavily-scrutinized NFL Concussion Case. The underlying case involves thousands of ex-NFL players who settled with the NFL for $1B over concussion- related injuries sustained during their careers. Numerous claimants sought litigation funding from roughly a dozen Consumer Legal Funders while waiting for their payout from the NFL. NFL class counsel, led by co-lead counsel Christopher Seeger, has been accusing those funders of 'predatory' behavior, claiming they preyed on cognitively impaired athletes by issuing usurious lending agreements. Mr. Seeger has been seeking to block the funding agreements, and in a shock ruling, U.S. District Judge Anita Brody of the Eastern District of Pennsylvania agreed with Seeger's position, and has voided the litigation funding agreements. As LFJ reported, class counsel in the NFL Concussion Case settlement has been seeking to void the litigation funding agreements between ex-players and a litany of Consumer Legal funders, including Atlas Funding, RD Legal, and Cash4Cases. Seeger argued that the funders preyed on cognitively impaired ex- players, and that the settlement agreement's anti-assignment language barred any such funding from taking place. The Consumer Legal Funders shot back that their funding agreements do not violate the settlement agreement because no interest in plaintiffs' claims were acquired. Instead, funders purchased an interest in plaintiffs' settlement proceeds -- and those were not specifically addressed in the anti-assignment clause of the class action settlement. For example, RD Legal advanced 7 NFL retirees $1.63 million in exchange for rights to $3.43 million of the cash they are expected to receive in the settlement (that's out of a total $11.7 million those 7 players are slated to receive). None of the players, funders, or individual lawyers for the players have contested these funding agreements. Therefore RD Legal is claiming that their agreements can in no way be considered 'predatory.' What's more, Atlas Legal funding recently filed an accusation against Seeger that he failed to disclose his past ties to litigation funder Esquire Bank, which funded mass tort and class action claims, including those in the NFL concussion case itself. Yet despite the accusation, Judge Brody has sided with Seeger's position. She declared all funding contracts void, referencing section 30.1 of the settlement agreement, which states: "Neither the Settlement Class nor any Class or Subclass Representative or Settlement Class Member has assigned, will assign, or will attempt to assign, to any person or entity other than the NFL Parties any rights or claims relating to the subject matter of the Class Action Complaint. Any such assignment, or attempt to assign, to any person or entity other than the NFL Parties any rights or claims relating to the subject matter of the Class Action Complaint will be void, invalid, and of no force and effect and the Claims Administrator shall not recognize any such action." In a copy of the Judge's Order obtained by Litigation Finance Journal, Judge Brody concludes that: "To the extent that any Class Member has entered into an agreement that assigned or attempted to assign any monetary claims, that agreement is void, invalid and of no force and effect. Class Members receiving awards are, by definition, cognitively impaired. A Third-Party funder entering an agreement with a Class Member would obviously know that simple fact. Additionally, the anti-assignment language in the Settlement Agreement clearly states the intent that Class Members are unable to make assignments. Thus, the Court has little sympathy for a Third-Party Funder that will not receive a return on its "investment." Nevertheless, under the principle of rescission, Class Members should return to the Third-Party Funder the amount already paid to them. Accordingly, if the Third-Party Funder is willing to accept rescission and execute a valid waiver relinquishing any claims or rights under the entire agreement creating the assignment or attempted assignment, then the Claims Administrator will be authorized to withhold -- from the Class Member's monetary award -- the amount already paid to the Class Member under the agreement and return it to the Third-Party Funder." Attorney Raul Sloezen, who represents Cash4Cases and Atlas Legal Funding, expressed his disappointment with the ruling, and claims the issue should be decided in arbitration. He noted that neither Cash4Cases, nor Atlas Legal were involved in the motion, which was expressly issued against RD Legal and its funding agreements. Though clearly this decision now puts Atlas and Cash4Cases -- as well as the other Consumer Legal Funders involved in the NFL Concussion Case -- directly in Seeger's crosshairs. "We still have to make a decision about how to proceed," Mr. Sloezen said. Jeffrey Hammer of Boies Schiller Flexner, who is representing RD Legal, has yet to comment. [GN] ONTARIO: Faces Class Action Over Abuse in Training Schools ---------------------------------------------------------- Kenyon Wallace, writing for Toronto Star, reports that a proposed class action lawsuit has been launched against the Ontario government alleging horrific sexual, physical and psychological abuse perpetrated on former students of the province's "training schools" between 1931 and 1984. The schools were residential institutions operated by the province to house children between the ages of 8 and 16 who were deemed by the courts to be "incorrigible" or difficult to control. Children could be sent to training school without having committed any crime. Truancy, running away from home, or even begging could land a child at any one of the province's more than a dozen institutions. "The repercussions (of training school) were unreal in my life," said representative plaintiff Kirk Keeping, who was sent at age 15 to a training school in Bowmanville, where he says he was forced into sexual acts with male and female staff members and suffered frequent beatings. The two years he spent in training school had a profound effect on his life, said Mr. Keeping, 64. "I just spiralled down for many years in my life. It was a roller-coaster ride trying to hold down jobs, trying to have a family and live normal. It was a hard thing." The lawsuit, filed in Thunder Bay, where Mr. Keeping lives, is seeking $500 million in damages for negligence, breach of fiduciary duty and vicarious liability, as well as $100 million in punitive damages. Lawyers who filed the claim believe there could be thousands of class members. "Training schools contained a toxic environment in which degrading and humiliating treatment of children in the Crown's care was the norm, physical, sexual, and psychological abuse was rampant, and residents of training schools were systematically denied their dignity and basic human rights," reads the claim, filed in court on Dec. 8, which lists 14 training institutions operated by the province. "Through the Crown's systemic negligence and breach of fiduciary duty, this improper conduct continued for decades." A spokesperson for the Ministry of Attorney General said it would be inappropriate to comment "as this matter is subject to litigation." A recent Star investigation found that the province has secretly settled 220 lawsuits launched by individual former training school residents. As a condition of settlement, victims had to sign confidentiality agreements -- "gag orders," as some former residents called them -- to receive financial compensation. The Star also found that two provincial officials warned of student mistreatment at the hands of training school staff and teachers, but that the province appeared to have ignored these warnings. Mr. Keeping, the representative plaintiff, told the Star a judge sent him to Pine Ridge training school in Bowmanville in 1968, not for committing any crime, but for simply for being a "wild boy with a slingshot in his pocket." The statement of claim alleges that he was assigned to work in Pine Ridge's kitchen, where he was taken into a back room by a female staffer who performed oral sex on him and touched his genitals. The staffer then allegedly took Keeping, who was a virgin, into a large cooler and had sex with him. The claim also states that he was sent to work at the school's dairy farm to milk cows. After a few weeks, a male employee known only as "Jake" became friendly with Mr. Keeping, giving him tobacco, rolling papers and matches. One night, Jake called Keeping down to the farm and performed oral sex on him, the claim alleges. Jake then told Keeping he would show him "how girls got pregnant," and then jumped on Keeping and "performed simulated sex." The sexual abuse continued for the next several weeks, Keeping alleges. He also says he saw Jake touch the genitals of other residents. Mr. Keeping also alleges that staff would put him in a locker and hit him with running shoes when he misbehaved. He says he is participating in the class action because he wants to hold the government to account for "the damage that was done to a lot of us." "(The staff) had too much authority . . . we were very vulnerable. We were wide open for them to do as they chose," Mr. Keeping said. Among the other abuses against training school residents that the lawsuit alleges: lengthy punishments in solitary confinement, known as "the hole"; being denied access to the washroom, thus forcing residents to soil themselves; and, being made to scrub floors with toothbrushes. In addition, the claim alleges that staff members were unqualified and improperly supervised. Jonathan Ptak, a partner at the firm Koskie Miskie and the lead lawyer on the claim, said it could take as long as a year for a judge to hear evidence and make a decision on whether to certify the case as a class action proceeding. "We hope to be able to shine a light on this chapter in history, which is really a shameful one in respect of how Ontario has treated its most vulnerable children in its care," Mr. Ptak said. "And we're hoping for institutional change and behavioural change with respect to these kinds of circumstances and places in the future as well." If the suit is certified, Mr. Ptak said, notice will be then given to the class in various forms, such as ads in newspapers and other media so that former students can opt out of the class action if they wish. But some lawyers who practise in sexual assault law have raised concerns that class action lawsuits may not be the best vehicles for survivors. Loretta Merritt, a Toronto lawyer who focuses on sexual and physical abuse law, said the requirement for victims to "opt out" of a class action lawsuit is problematic. "If class members don't opt out by a date specified by the court, they are deemed to be included, even if they don't know about the lawsuit or don't feel ready to come forward with their experiences," said Ms. Merritt, who has filed dozens of individual lawsuits on behalf of former training school residents alleging sexual abuse. "Once a class action finishes, the law states that those who did not opt out and didn't participate are now barred from pursuing an individual claim." She noted that the requirement to come forward by a specific time in class actions runs counter to the province's decision in March 2016 to eliminate limitation periods for civil sexual assault claims. "It's a conflict in the law that denies abuse survivors access to justice." [GN] ONTARIO: Koskie Minsky, Watkins File Suit Over Schools Abuses ------------------------------------------------------------- Koskie Minsky LLP in Toronto, and Watkins Law, P.C., in Thunder Bay, Ontario, have commenced a class action against the Province of Ontario on behalf of survivors of abuse at Ontario Training Schools. The Training Schools were juvenile detention facilities for children that were established the Province of Ontario from the 1930s to 1984. The claim seeks $600 million from the Province of Ontario in damages for negligence, breach of fiduciary duty and vicarious liability. It is estimated that there are as many as 10,000 survivors of the Ontario Training Schools. The Statement of Claim alleges that in establishing and operating the Training Schools, the Province of Ontario created a toxic environment in which physical, sexual and psychological abuse of children in its care was frequent and widespread. It further alleges that cruel and degrading punishment perpetrated on children in the care of the Province was common. For example, staff disciplined residents for alleged misbehaviour using the "blanket treatment" whereby a blanket was placed over the resident and the resident was beaten by staff members and peers. Although the Province of Ontario has already entered into settlements with survivors of St. Joseph's Training School for Boys, St. John's Training School for Boys, and Grandview Training School, survivors of Ontario's additional twelve Training Schools were left out. The representative plaintiff in this class action is Kirk Keeping. Kirk was sent to Pine Ridge School when he was 15 years old. While at Pine Ridge, Kirk was repeatedly sexually abused by employees of the Province of Ontario. "I was just a kid," says the representative plaintiff Kirk Keeping. "What happened to me at Pine Ridge, I have had to live with that for the rest of my life." "Ontario's most vulnerable children were locked away in geographically isolated communities where they were preyed upon and abused," says Jonathan Ptak, lead counsel at Koskie Minsky LLP. "The legacy of Ontario Training Schools is still being felt to this day." "It's time these historic wrongs are righted," says Christopher Watkins, counsel at Watkins Law P.C. If you were a resident of: (1) Reception and Assessment Centre - Oakville; (2) Reception and Diagnostic Centre for Girls - Galt (Reception, Diagnostic, and Treatment Centre - Galt); (3) Ontario Training School for Girls - Lindsay (Kawartha Lakes School); (4) Trelawney House - Port Bolster; (5) Reception Centre for Boys - Bowmanville (Reception Centre, Bowmanville); (5) Ontario Training School for Boys - Simcoe (Glendale School); (6) Ontario Training School for Boys, Hagersville Junior School (White Oaks Village); (7) Ontario Training School for Boys, Hagersville Senior School (Sprucedale School); (8) Ontario Training School for Boys, Bowmanville (Pine Ridge School); (9) Ontario Training School for Boys, Cobourg (Brookside School); (10) Ontario Training School for Boys, Guelph (Hillcrest School); (11) Coldsprings Forestry Camp; (12) Cecil Fraser School; or Project D.A.R.E., please call 1 866 860 9364, visit https://kmlaw.ca/cases/ontario-training- schools or email trainingschoolsclassaction@kmlaw.ca Koskie Minsky LLP, based in Toronto, is one of Canada's foremost class action, pension, labour, employment and litigation firms. Its class actions group has been a leader in class actions since 1992 and has prosecuted many of the leading cases in the area. For example, Koskie Minsky LLP was counsel in Cloud v. Canada, the first Indian Residential Schools class action certified in Canada which was settled for $5 billion. Koskie Minsky LLP was also counsel in Dolmage v. Ontario and three other related cases against the province of Ontario on behalf of thousands of people with disabilities which were settled for more than $107 million. Koskie Minsky LLP is also counsel in the recently settled class actions on behalf of survivors of the Sixties Scoop and the LGBT Purge in the Canadian military and public service. Christopher Watkins of Watkins Law PC, based in Thunder Bay, bring extensive courtroom and trial experience in the areas of personal injury, criminal and class action litigation. [GN] OSI SYSTEMS: Bragar Eagel Files Securities Class Suit ----------------------------------------------------- Bragar Eagel & Squire, P.C., disclosed that a class action lawsuit has been filed in the U.S. District Court for the Central District of California on behalf of all persons or entities who purchased or otherwise acquired OSI Systems, Inc. (NASDAQ:OSIS) securities between August 16, 2013 and December 6, 2017 (the "Class Period"). Investors have until February 5, 2018 to apply to the Court to be appointed as lead plaintiff in the lawsuit. On December 6, 2017, Carson Block, the founder of Muddy Waters Capital, alleged in a video documentary that OSI Systems, the maker of Rapiscan airport metal detectors is "rotten to the core" and further alleged that there was corruption in the 2013 award of OSI's Albania concession. Following this news, the stock price of OSI Systems, Inc. fell $24.55 per share, or 29%, to close at $59.52 on December 6, 2017. The Complaint alleges that Defendants failed to disclose: (1) that OSI acquired the Albania concession through bribery or other illicit means; (2) that OSI transferred 49% of its project company associated with the Albania concession, S2 Albania SHPK, an entity purportedly worth millions, for consideration of less than $5.00; (3) that OSI engaged in other illegal acts, including improper sales and cash payments to government officials; (4) that these practices caused the Company to be vulnerable to potential civil and criminal liability, and adverse regulatory action; and (5) that, as a result of the foregoing, Defendants statements about OSI's business, operations, and prospects, were materially false and/or misleading and/or lacked a reasonable basis. If you purchased or otherwise acquired OSI Systems securities during the Class Period and suffered a loss, continue to hold shares purchased prior to the Class Period, have information, would like to learn more about these claims, or have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Brandon Walker or Melissa Fortunato by email at investigations@bespc.com, or telephone at (212) 355-4648, or by filling out this contact form. There is no cost or obligation to you. Bragar Eagel & Squire, P.C. --http:/www.bespc.com -- is a New York-based law firm concentrating in commercial and securities litigation. For additional information concerning the OSI Systems, Inc. lawsuit, please go to http://www.bespc.com/osis [GN] PENNSYLVANIA: Referees File Class Action Over Contractor Status --------------------------------------------------------------- Dan Packel, writing for Law360, reports that two Western Pennsylvania referees filed a federal class action suit on Dec. 8 accusing the organization that oversees high school sports in the state of improperly categorizing them as independent contractors and shorting them on wages. Charles Ruslavage and Mario Seneca, both of Washington County, say the Pennsylvania Interscholastic Athletic Association required them to work off the clock without any pay and also to work overtime without receiving time-and-a-half wages. [GN] PHARM-SAVE INC: W-2 Data Breach Class Action Can Proceed -------------------------------------------------------- Michael E. Nitardy, Esq., and Jane Hils Shea, Esq., of Frost Brown Todd LLC, in an article for Lexology, wrote that the fallout from the seemingly endless W-2 phishing scams continues to be felt. On December 1, 2017, a federal court in Louisville, Kentucky, in Savidge v. Pharm-Save, Inc., 2017 WL 5986972, *1 (W.D.Ky. Dec. 1, 2017) determined that former employees could proceed with certain claims against their former employer arising from the improper disclosure of W-2's as a result of a phishing scam suffered by the employer. The underlying facts of the Savidge case involve a 2016 phishing email scheme that resulted in defendant Pharm-Save, Inc. (and, as alleged in the Complaint under alter-ego theories, co-defendant Neil Medical Group, Inc.) disclosing employee W-2s to the criminal perpetrators. The plaintiffs are former employees who filed suit in a class action against Defendants on behalf of all current and former employees who were impacted by the breach. The Complaint included counts for negligence, negligence per se, breach of implied contract, breach of privacy, intentional infliction of emotional distress, and negligent infliction of emotional distress. The Defendants moved to dismiss the complaint as to all counts, but the Court agreed to permit the case to proceed on two of the claims. In doing so, it provided insight into how courts may analyze such data breach cases. The Negligence Claim For the "duty" and "breach" elements of a negligence claim, while the Court admitted the allegations in the Complaint were "scant," the Court accepted that a reasonable inference that, because Plaintiffs' information was released to unauthorized individuals, Defendants breached their duties to safeguard that information. While a number of data breach cases have failed on the damages element due to the speculative nature in which damages in this area have been pled, the Court in Savidge found sufficient pleading of damages to maintain the negligence action -- though it noted that the mere attempted filing of a fraudulent tax return in one of the Plaintiffs' name alone was not enough to cause cognizable injury. Instead, the Court found persuasive the Plaintiffs' allegations of damages from out-of-pocket expenses incurred and lost productivity time spent in monitoring activity to prevent and address possible fraudulent tax returns, damages which other courts have deemed too speculative to withstand a motion to dismiss. The Court relied upon a growing number of federal district and appellate courts that have recognized as "injury-in-fact" the expense incurred in purchasing credit monitoring services and the costs expended to deal with fraudulent activity following the theft of PII, particularly where such stolen PII has already been used by the perpetrators. For example, the Court found the perpetrators' attempted filing of a tax return for Plaintiff Savidge compelling on this point. In addition, the Court found a sufficient "nexus" between the data breach and the alleged fraudulent activity to satisfy the "causation" element. In so finding, the Court relied on the fact that the Defendant itself warned its employees and former employees of possible attempts by the criminals to file fraudulent tax returns. The Court stated that because that was precisely what happened in Plaintiff Savidge's case, a sufficient nexus had been established. Breach of Implied Contract Claim The Court had no problem finding an implied promise by the Defendant to keep confidential the personal information of the Plaintiffs necessary to create the W-2 forms, and a breach of that promise by their unauthorized release of that information to the perpetrators. It cited the involuntary nature of the requirement that employees provide employers with their sensitive information, such as Social Security numbers, and that that requirement gave rise to an implied agreement by the Defendants to protect the Plaintiffs' information. Takeaways Although the two claims that survived Defendants' Motion to Dismiss are based on different legal theories, they both are based on an employer's obligation to protect employees' personal information. As a result, Savidge continues the movement of courts towards finding that if sensitive employee personal information is disclosed to third-parties without the employee's consent, it is not unreasonable to assert at the pleading stage that such disclosure was the result of a breach of an employer's duty or an employer's promise. This has consequences not only for employers, but also for all individuals and entities that use or control personal information. Given the ever-increasing number of breaches and scams, and the increasing likelihood for organizations that a breach is not a matter of "if" but "when," being able to demonstrate that the breach or scam was not the result of any duty or promise that was breached by the organization becomes incredibly important. Potential ways to demonstrate that no duty was breached include providing regular training of employees on potential phishing threats and maintaining an up-to-date IT system. Failure to perform these tasks may make organizations vulnerable to class action suits should they find themselves victimized by hackers and scammers. In addition, Savidge also supports the concept that pleading additional out-of-pocket costs incurred with the reasonable threat of harm as a result of the breach or disclosure will meet a plaintiff's requirement to sufficiently plead damages in a data breach case. Given that many companies currently provide credit monitoring of some type for at least a year after a data breach, companies may rightly wonder if such a provision will be enough to ward off future claims for damages. [GN] PURITAN'S PRIDE: Seeks Dismissal of BOGO Class Action ----------------------------------------------------- John Revak, writing for Legal Newsline, reports that Puritan's Pride and The Nature's Bounty have asked a federal judge dismiss a class action lawsuit over a buy-one-get-one-free deal. A hearing on the case was expected for Dec. 14 in the U.S. District Court for the Northern District of California in San Francisco with Judge James Donato presiding. The claim, originally brought in Mendocino County Superior Court in October 2016 before being removed to federal court was brought against the company and its subsidiaries over a buy-one-get-one- free alleged marketing scheme. Plaintiffs Darcey Sharp and Ludolph-Aliaga contended that the scheme was fraudulent because the cost of the second free product allegedly was accounted for in the first product's price. They also allege the promotion was labeled as being for a "limited time only" despite the fact that it has gone on indefinitely. The complaint, filed as a class action on behalf of wronged consumers in California and New York, alleges violations of a slew of different consumer protection and false advertising statutes, including the Consumer Legal Remedies Act and New York consumer protection statutes. "Plaintiffs and members of the class would not have believed that they were obtaining the same value for their purchases had they known that the price for purchased products included the price for the purportedly 'free' products, such that they were not receiving a deal or price reduction at all," the class action complaints states. The defendants allege the lawsuit should be dismissed because the court lacks jurisdiction, plaintiffs lack standing and the complaint fails to state a claim for relief. According to the defendants' motion, they allege that the plaintiffs have failed to establish necessary facts regarding the false advertising claim and how the advertising was deceptive. Additionally, the defendants argue the plaintiffs claim that the only relief available under the California Unfair Competition Law and False Advertising Law is restitution. For restitution, the plaintiffs must prove that the price they paid for the product exceeded the products' value, and according to the defendants; the defendants allege the plaintiffs have failed to do this. The motion alleges that the plaintiff's other claims for unjust enrichment and consumer protection statutes violations fail due to lack of standing, personal jurisdiction, and failure to establish price/value differential. "The complaint alleges no facts showing any entitlement to monetary relief under the UCL, FAL or CLRA. The court should accordingly dismiss all monetary claims for relief under these statutes," the motion to dismiss reads. [GN] QUDIAN INC: Faruqi & Faruqi Files Securities Class Action in NY --------------------------------------------------------------- Faruqi & Faruqi, LLP, a national securities law firm, on Dec. 12 disclosed that it has filed a class action lawsuit on behalf of all those who purchased Qudian Inc. ("Qudian" or the "Company") (NYSE:QD) American Depository Shares ("ADSs") pursuant to the Company's initial public offering on or about October 18, 2017 (the "IPO"), seeking to recover damages for alleged violations of Sections 11 and 15 of the Securities Act of 1933 (the "Securities Act"). The case, Ramnath v. Qudian Inc., et al., No. 1:17-cv- 9741, was filed on December 12, 2017 in the United States District Court for the Southern District of New York. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from December 12, 2017. If you invested in Qudian ADSs pursuant to the Company's IPO and would like to discuss your legal rights, click here: http://www.faruqilaw.com/QD There is no cost or obligation to you. You can also contact us by calling Richard Gonnello toll free at 877-247-4292 or at 212-983-9330 or by sending an e-mail to rgonnello@faruqilaw.com Qudian is a Chinese provider of online micro-lending credit products. The complaint charges Qudian, certain of its officers and directors, and the underwriters (collectively, the "Defendants") of the IPO with violations of the Securities Act. On or about September 18, 2017, Qudian filed with the Securities and Exchange Commission ("SEC") its Registration Statement on Form F-1, which would later be utilized in the IPO following multiple amendments on Form F-1/A--the last of which was filed on October 13, 2017--and being declared effective by the SEC on October 17, 2017. On October 17, 2017, the Defendants priced the IPO at $24.00 per ADS. Then, on or about October 18, 2017, Qudian filed the final prospectus for the IPO, which forms part of the Registration Statement. That same day, Qudian ADSs began trading on the NYSE under the ticker symbol "QD." The lawsuit focuses on whether the Defendants violated federal securities laws by making false and/or misleading statements in the IPO's Registration Statement by failing to disclose that: (i) Qudian's loan collection practices were materially deficient and/or nonexistent as the Company treated bad loans as welfare, and (ii) Qudian's data systems and procedures were materially inadequate to safeguard sensitive borrower data against breach, and that breaches had occurred. At the time of the filing of the lawsuit, Qudian's ADSs were trading at $13.19, which is approximately 45% lower than the $24.00 IPO price. The court-appointed lead plaintiff is the investor with the largest financial interest in the relief sought by the class who is adequate and typical of class members who directs and oversees the litigation on behalf of the putative class. Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. Your ability to share in any recovery is not affected by the decision to serve as a lead plaintiff or not. Faruqi & Faruqi, LLP -- http://www.faruqilaw.com-- also encourages anyone with information regarding Defendants' conduct to contact the firm, including whistleblowers, former employees, shareholders and others. [GN] R&R MATTRESS: Fails to Pay Right Overtime, "Koutroupis" Suit Says ----------------------------------------------------------------- SHARON KOUTROUPIS, Individually and on behalf of all others similarly situated v. R&R MATTRESS INVESTMENTS, LLC d/b/a MATTRESS DEPOT, R&B MATTRESS STORES PARTNERSHIP LLC, R M DEPOT, INC., RTL MATTRESS INVESTMENTS, LLC d/b/a MATTRESS DEPOT, and KM FURNITURE DEPOT INVESTMENTS, LLC d/b/a FURNITURE DEPOT, Case No. 2:17-cv-00373 (S.D. Tex., December 7, 2017), alleges that the Defendants knowingly and deliberately failed to compensate the Plaintiff and the putative class members overtime of at least one and one-half times their regular rates for all hours worked in excess of 40 hours per workweek. R M Depot, Inc., is a Texas For-Profit Corporation. R&R Mattress Investments, LLC, is a Texas Limited Liability Corporation. R&B Mattress Stores Partnership LLC, RTL Mattress Investments, LLC, and KM Furniture Depot Investments, LLC, are Texas Limited Liability Companies. Headquartered in Corpus Christi, Texas, the Defendants sell mattresses and home furniture throughout South Texas.[BN] The Plaintiff is represented by: Clif Alexander, Esq. Austin W. Anderson, Esq. Lauren E. Braddy, Esq. Carter T. Hastings, Esq. ANDERSON2X, PLLC 819 N. Upper Broadway Corpus Christi, TX 78401 Telephone: (361) 452-1279 Facsimile: (361) 452-1284 E-mail: clif@a2xlaw.com austin@a2xlaw.com lauren@a2xlaw.com carter@a2xlaw.com RANDHAWA INC: Faces "Pant" Suit in E.D. New York ------------------------------------------------ A class action lawsuit has been filed against Randhawa Inc. The case is styled as Shantaji Pant, individually and on behalf of all others similarly situated, Plaintiff v. Gurdip Singh, Harpreet Kaur Randhawa and Randhawa Inc., Defendants, Case No. 1:18-cv-00015 (E.D. N.Y., January 2, 2018). Randhawa, Inc. is an architectural and construction firm that specializes in designing and building high end quality homes in the Washington DC metropolitan area.[BN] The Plaintiff appears PRO SE. The Defendant appears PRO SE. REALREAL INC: Faces Class Action Over Inflated Gemstone Weights --------------------------------------------------------------- The Fashion Law reports that The RealReal might not be so real after all, or at least not according to a new $5 million-plus lawsuit filed against it in December. According to the complaint, which filed by Gaby Basmadjian in a federal court in Northern California, the San Francisco-based luxury consignment website has "systematically inflated the total weights of small uncertificated gemstones knowing that the average consumer would have no way to know that the weights were inflated." Novi, Michigan-based Basmadjian alleges that on August 30, 2017, she purchased a ring from TheRealReal.com for $982.62. She asserts that "the ring was represented [as containing] 2.10 carats of diamonds. At the time of the purchase, [Basmadjian] had no way to know whether the diamond weight listed on the description was accurate and was entitled to assume that the label was accurate." Ms. Basmadjian further states, "After receiving the ring for which the purchase was not returnable, she had the ring inspected to measure the total weight of the diamonds. Through detailed measurements performed by a gemologist, the ring was found to contain approximately 1.2 carats of diamonds. This is a discrepancy of approximately 0.9 carats," or an "overstatement of 75 percent." This difference in carats, per Ms. Basmadjian, is particularly problematic for two reasons. One reason being that The RealReal "held [itself] out as an expert in the field of gemology." Due to its authentication process -- which The RealReal advertises as including "a team of authentication experts, horologists, and gemologists" -- the site "guarantees that every item sold on their website and in stores is '100% the real thing.'" Secondly, the discrepancy runs afoul of federal law, as "the Federal Trade Commission requires that [advertised] diamond weights be accurate to the last decimal place." Ms. Basmadjian asserts that according to the Federal Trade Commission's standard, "the allowable range of weights [for the 1.2 carat ring she purchased] based upon the description was 2.0955 to 2.1055 carats." By "intentionally overstating the weight of the gemstones in [its] jewelry," Ms. Basmadjian claims that The RealReal has "charged [her and the other potential plaintiffs] a higher price than they should have been charged." As for who those other potential plaintiffs are, in addition to seeking monetary damages of upwards of $5 million in connection with The RealReal's alleged fraud, negligent misrepresentation, and violations of various California state laws, Ms. Basmadjian has asked the court to approve her proposed class action lawsuit in order to enable others to join her suit. The class of individuals eligible to join the case, should the court approve the class action, include, "All persons who, in the United States after December 1, 2013, purchased from [The RealReal]: (1) one or more pieces of jewelry where the weight of gemstones indicated on the product label exceeded the actual weight of the gemstones in the jewelry by more than 1/100 of a carat (1 point, 2mg)." A spokesman for The RealReal told TFL, "The RealReal is committed to the highest standards in everything we do. All gemstones sold by consignors on our website are evaluated by our team of skilled gemologists consistent with industry standards. The lawsuit is without merit and The RealReal will aggressively defend itself against these baseless claims. We have no further comment on the lawsuit." The case is Gaby Basmadjian, individually and others similarly situated, v. The RealReal, Inc., 3:17-cv-06910 (N.D.Cal). [GN] RFR CAPITAL LLC: "Martin" Action Seeks Unpaid Overtime Pay ---------------------------------------------------------- Addison N. Martin, on behalf of himself and all others similarly situated, Plaintiff, v. RFR Capital, LLC, Defendant, Case No. 17- cv-00560 (S.D. Ala., December 19, 2017), seeks damages and other legal and equitable remedies resulting from violations of the Telephone Consumer Protection Act and the Alabama Telephone Solicitations Act. RFR placed allegedly calls to the Plaintiff using an automatic telephone dialing system for marketing Defendant's money lending services. Martin registered his cellular telephone number with the National Do Not Call Registry for the express purpose of avoiding unwanted telemarketing calls. [BN] Plaintiff is represented by: Earl P. Underwood, Jr. UNDERWOOD & RIEMER, P.C. 21 South Section Street Fairhope, AL 36532 Telephone: (251) 990-5558 Facsimile: (251) 990-0626 E-mail: epunderwood@alalaw.com RHODE ISLAND: Health Secretary Faces "Scherwitz" Class Suit ----------------------------------------------------------- A class action lawsuit has been filed against Eric Beane. The case is styled as Christopher Scherwitz and John E Figuried, on behalf of himself and all others similarly situated, Plaintiffs v. Eric Beane in His Official Capacity as Secretary of RI Executive Office of Health and Human Services, Defendant, Case No. 1:18-cv-00005-WES-LDA (D. R.I., January 2, 2018). The Defendant is a government representative.[BN] The Plaintiff is represented by: Ellen M. Saideman, Esq. 7 Henry Drive Barrington, RI 02806 Tel: (401) 258-7276 Email: esaideman@gmail.com SANOFI SA: Taxotere Label Didn't Warn of Hair Loss, Says "Dewees" ----------------------------------------------------------------- TAMMY DEWEES v. SANOFI S.A.; AVENTIS PHARMA S.A; SANOFI U.S. SERVICES INC. F/K/A SANOFI-AVENTIS, U.S. LLC; SANOFI-AVENTIS U.S. LLC, separately, and doing business as WINTHROP U.S.; SANDOZ, INC.; HOSPIRA WORLDWIDE, LLC F/K/A HOSPIRA WORLDWIDE, INC.; HOSPIRA INC.; PFIZER, INC. ACTAVIS LLC F/K/A ACTAVIS INC.; ACTAVIS PHARMA, INC.; and MCKESSON CORPORATION D/B/A MCKESSON PACKAGING, Case No. 2:17-cv-15874 (E.D. La., December 8, 2017), alleges that the warning and precautions in the Taxotere Label do not warn against permanent hair loss, and the adverse reactions do not state that use of Taxotere could cause permanent hair loss. The lawsuit is part of the multidistrict litigation styled In Re: TAXOTERE (DOCETAXEL) PRODUCTS LIABILITY LITIGATION, MDL No. 2:16- md-02740-KDE-MBN. The actions in the litigation involve product liability suits alleging, inter alia, that Defendants Sanofi S.A., Aventis Pharma S.A. and Sanofi-Aventis U.S. LLC manufactured, marketed, distributed, supplied, promoted and sold Taxotere(R), which is defective and unreasonably dangerous in that it causes permanent hair loss (alopecia); that Sanofi knew or should have known of the risk of alopecia associated with Taxotere(R) usage; that Sanofi marketed, distributed and/or sold Taxotere(R) without adequate warnings concerning its risks; and that as a direct and proximate result of using Taxotere(R), women across the nation have suffered serious injuries, physical and mental pain and suffering, as well as economic loss. Based in Paris, France, Sanofi S.A. is a global healthcare company, focused on patient needs and engaged in the research, development, manufacture and marketing of therapeutic solutions. Based in Antony, France, Aventis Pharma S.A. manufactures and markets pharmaceutical products under various brands such as NUXEPTIL. Based in Princeton, New Jersey, Sandoz, Inc., a subsidiary of Novartis AG, develops, produces and markets generic pharmaceuticals, including generic Clobetasol, throughout the United States. Based in Lake Forest, Illinois, Hospira is in the business of manufacturing and selling prescription drugs and medical devices. Based in New York, Pfizer Inc. is engaged in the business of research, designing, testing, formulating, inspecting, labeling, manufacturing, packaging, marketing, distributing, producing, processing, promoting, and selling drugs. Based in Parsippany-Troy Hills, New Jersey, Actavis Generics develops, manufactures, and commercializes generic and branded pharmaceutical products, and biologics and medical devices for patients worldwide. Actavis offers products in central nervous system, eye care, medical aesthetics, gastroenterology, women's health, urology, cardiovascular, and anti-infective therapeutic categories. McKesson Corporation, based in San Francisco, California, provides pharmaceuticals and medical supplies in the United States and internationally.[BN] The Plaintiff is represented by: Lydia Murphy, Esq. BARON & BUDD, P.C. 3102 Oak Lawn Avenue, Suite 1100 Dallas, TX 75219 Telephone: (214) 521-3605 Facsimile: (214) 520-1181 E-mail: lymurphy@baronbudd.com SANOFI SA: "McGaughey" Suit Alleges Hair Loss From Taxotere ----------------------------------------------------------- DEBORAH MCGAUGHEY v. SANOFI S.A.; AVENTIS PHARMA S.A; SANOFI U.S. SERVICES INC. F/K/A SANOFI-AVENTIS, U.S. LLC; SANOFI-AVENTIS U.S. LLC, separately, and doing business as WINTHROP U.S.; SANDOZ, INC.; ACCORD HEALTHCARE, INC.; PFIZER INC.; EAGLE PHARMACEUTICAL, INC. and NORTHSTAR RX, LLC, Case No. 2:17-cv-15967 (E.D. La., December 8, 2017), alleges that the warning and precautions in the Taxotere Label do not warn against permanent hair loss, and the adverse reactions do not state that use of Taxotere could cause permanent hair loss. The lawsuit is part of the multidistrict litigation styled In Re: TAXOTERE (DOCETAXEL) PRODUCTS LIABILITY LITIGATION, MDL No. 2:16- md-02740-KDE-MBN. The actions in the litigation involve product liability suits alleging, inter alia, that Defendants Sanofi S.A., Aventis Pharma S.A. and Sanofi-Aventis U.S. LLC manufactured, marketed, distributed, supplied, promoted and sold Taxotere(R), which is defective and unreasonably dangerous in that it causes permanent hair loss (alopecia); that Sanofi knew or should have known of the risk of alopecia associated with Taxotere(R) usage; that Sanofi marketed, distributed and/or sold Taxotere(R) without adequate warnings concerning its risks; and that as a direct and proximate result of using Taxotere(R), women across the nation have suffered serious injuries, physical and mental pain and suffering, as well as economic loss. Based in Paris, France, Sanofi S.A. is a global healthcare company, focused on patient needs and engaged in the research, development, manufacture and marketing of therapeutic solutions. Based in Antony, France, Aventis Pharma S.A. manufactures and markets pharmaceutical products under various brands such as NUXEPTIL. Based in Princeton, New Jersey, Sandoz, Inc., a subsidiary of Novartis AG, develops, produces and markets generic pharmaceuticals, including generic Clobetasol, throughout the United States. Based in Lake Forest, Illinois, Hospira is in the business of manufacturing and selling prescription drugs and medical devices. Accord Healthcare, Inc., a generic pharmaceutical company, provides products in the areas of oncology, cardiology, neurology, nephrology, urology, psychiatry, diabetology, pain management, and gastroenterology. Based in New York, Pfizer Inc. is engaged in the business of research, designing, testing, formulating, inspecting, labeling, manufacturing, packaging, marketing, distributing, producing, processing, promoting, and selling drugs. With headquarters in Woodcliff Lake, New Jersey, Eagle Pharmaceuticals Inc. develops and distributes injectable products, primarily in the critical care and oncology areas. Based in Memphis, Tennessee, Northstar Rx LLC is a subsidiary of McKesson Corporation. McKesson provides pharmaceuticals and medical supplies in the United States and internationally.[BN] The Plaintiff is represented by: Lydia Murphy, Esq. BARON & BUDD, P.C. 3102 Oak Lawn Avenue, Suite 1100 Dallas, TX 75219 Telephone: (214) 521-3605 Facsimile: (214) 520-1181 E-mail: lymurphy@baronbudd.com SANTA BARBARA, CA: Class Action Seeks Reform at County Jail ----------------------------------------------------------- Janene Scully, writing for Noozhawk North County, reports that a federal class-action lawsuit claims the Santa Barbara County Jail fails to provide basic mental-health and medical care, misuses solitary confinement, discriminates against people with disabilities, and provides "inhumane, unsanitary, and unsafe living conditions." The lawsuit, naming inmates Clay Martin Burt Murray, David Franco, Shareen Winkle, Maria Tracy and Eric Brown as plaintiffs, lists Santa Barbara County and the Sheriff's Department as defendants. "This is a system with critical deficiencies that have not been addressed for too long," said Aaron Fischer, litigation counsel at Disability Rights California. "These issues put people with disabilities at risk of harm every day." The inmates are represented by Disability Rights California, the Prison Law Office, and King & Spalding, which is handling the matter on a pro bono basis. The 91-page complaint recounts a litany of physical and operational flaws due to the 50-year-old jail facility often referred to as "Franken-Jail. Modifications made over the years created a facility that is "haphazard, substandard, and riddled with architectural barriers, deficiencies, and limitations," the complaint claims. Inmates, including those with serious health conditions and disabilities, sleep on the floor, and many, including mentally ill inmates, are kept in solitary confinement, the plaintiffs' attorneys say. Suicide attempts are common among those in solitary-confinement settings, the complaints said, with 12 prisoners attempting suicide in a 5-month period. One man died. The jail is designed to house approximately 818 people, but its population typically exceeds 1,100, or 120 percent of the capacity. "Defendants have been deliberately indifferent to the substantial risk of pain and suffering and harm to prisoners, including serious injury, clinical deterioration, and death, caused by their inadequate, unlawful, and unconstitutional policies and practices," the complaints said. Sheriff Bill Brown noted the county has made efforts to improve conditions for inmates. "The Sheriff's Office takes seriously the treatment of all inmates in our custody, especially the most vulnerable," Brown said in a written statement. "We take these allegations seriously and remain committed to the proper care and treatment of those under our watch." Many of these deficiencies have been cited through the years in Santa Barbara County Grand Jury reports. To ease overcrowding, the county's new Northern Branch Jail is under construction at the corner of Betteravia and Black roads near Santa Maria, with opening scheduled for 2019. Brown presided over the groundbreaking ceremony last fall. But the inmates' attorneys say some of the problems won't go away once the new jail opens since the county plans to continue to use the existing jail facility. "This is a county jail that has clearly been dealing with overcrowding, insufficient staffing, and crumbling infrastructure for years," said Joshua Toll -- jtoll@kslaw.com -- pro bono partner at King & Spalding, "and it is our hope that this case will lead to significant reforms." The inmates allege jail conditions violate their constitutional rights under the Eighth Amendment banning cruel and unusual punishment. They also allege violations of the Fourteenth Amendment, which forbids restricting the basic rights of citizens or other persons. Other flaws cited in the civil lawsuit include a severe shortage of correctional deputies. Also, the lawsuit criticized the policy of punishing prisoners by serving them a "disciplinary diet" described as "a tasteless and disgusting 'meatloaf' with two slices of bread served twice daily "Serving this sort of disciplinary diet as punishment is banned in many jail and prison systems," the complaint said. Conditions for disabled inmates violate the Americans with Disabilities Act, the claim said, noting Murray, who uses a wheelchair, can't easily access rooms for confidential meetings with his attorney. The complaint asks a judge to order county jail staff to immediately provide adequate medical and mental-health care, including sufficient intake screening, timely access to appropriate clinicians, timely prescription and distribution of appropriate medications and supplies, timely access to specialty care, and timely access to adequate therapy, inpatient treatment, and suicide prevention. Additionally, the lawsuit seeks equal access to programs, services and activities for people with disabilities. Because of where they are housed in the jail, many with disabilities miss out on programs other inmates can access, the inmates attorneys said. Santa Barbara County Public Defender Tracy Macuga said her office supports efforts seeking to improve inmate health care and living conditions. "As defenders of the public, our attorneys and staff will continue vigorously fighting to protect and restore clients' lives, including advocating for the humane treatment of those in our local jail," the Public Defender's Office said in response the lawsuit. Santa Barbara County is expected to file a response within 60 days. [GN] SCOTTRADE INC: Ninth Circuit Appeal Filed in "Hine" Class Suit -------------------------------------------------------------- Plaintiff Stephen Hine filed an appeal from a court ruling in the lawsuit entitled Stephen Hine v. Scottrade, Inc., Case No. 3:17- cv-01796-JM-JLB (S.D. Cal.). The appellate case is captioned as Stephen Hine v. Scottrade, Inc., Case No. 17-80249, in the United States Court of Appeals for the Ninth Circuit.[BN] As previously reported in the Class Action Reporter, the lawsuit was filed in the Superior Court of the State of California, County of San Diego (Case No. 37-201600035493-CU-MC-CTL), and was later removed to the District Court. Scottrade, Inc. is a securities brokerage firm based in St. Louis, Missouri, that provides brokerage and other financial services to its customers. In his complaint, inter alia, the Plaintiff alleged that he and a putative class of "[a]ll California residents whose personal or financial information was compromised as a result of the data breach first disclosed by Scottrade on or about October 2, 2015" are entitled to monetary and other damages from Scottrade due to Scottrade's alleged failure to maintain adequate cybersecurity measures, which he alleges resulted in the cybersecurity incident at issue. Plaintiff-Petitioner STEPHEN HINE, on Behalf of Himself and All Others Similarly Situated, is represented by: Timothy G. Blood, Esq. BLOOD HURST & O'REARDON LLP 501 West Broadway San Diego, CA 92101 Telephone: (619) 338-1100 Facsimile: (619) 338-1101 E-mail: tblood@bholaw.com - and - Timothy Douglas Cohelan, Esq. J. Jason Hill, Esq. COHELAN KHOURY & SINGER 605 C Street San Diego, CA 92101-5305 Telephone: (619) 595-3001 Facsimile: (619) 595-3000 E-mail: tcohelan@ckslaw.com jhill@ckslaw.com - and - Joseph Siprut, Esq. SIPRUT, PC 17 North State Street, Suite 1600 Chicago, IL 60602 Telephone: (312) 236-0000 Facsimile: (312) 427-1850 E-mail: jsiprut@siprut.com Defendant-Respondent SCOTTRADE, INC., a Missouri Corporation, is represented by: Helen B. Kim, Esq. THOMPSON COBURN LLP 2029 Century Park East Los Angeles, CA 90067 Telephone: (310) 282-2500 Facsimile: (310) 282-2501 E-mail: hkim@thompsoncoburn.com SETERUS INC: "Corrigan" Sues Over Autodialed Collection Calls ------------------------------------------------------------- Sandra Corrigan, individually and on behalf of others similarly situated, Plaintiff, v. Seterus, Inc., Defendant, Case No. 17-cv- 02348 (M.D. Pa., December 19, 2017), seeks actual damages, statutory damages, injunctive relief, attorneys' fees and costs and other relief in violation of the Federal Telephone Consumers Protection Act. Seterus is a loan servicing company and debt collector attempting to collect unpaid mortgage payments from Corrigan using auto- dialed telephone calls. Plaintiff is represented by: Stefan Coleman, Esq. LAW OFFICES OF STEFAN COLEMAN, P.A. 201 s. Biscayne Blvd., 28th floor Miami, FL 33131 Tel: (877) 333-9427 Fax: (888) 498.8946 E-mail: law@stefancoleman.com - and - David S. Senoff, Esq. ANAPOL WEISS 130 N 18TH Street, Suite 1600 Philadelphia, PA 19103 Telephone: (215) 790-4550 Fax: (215) 875-7733 E-mail: dsenoff@anapo1weiss.com - and - Benjamin H. Richman, Esq. EDELSON PC 350 N. LaSalle, 13th Floor Chicago, IL 60654 Tel: (312) 589-6370 E-mail: brichman@edelson.com SHAUN'S TOWING: Faces Class Action Over Unpaid Overtime Wages ------------------------------------------------------------- Rick Carroll, writing for The Aspen Times, reports that a class- action suit is brewing against Shaun's Towing and Recovery, a valley wide service that stands accused of not paying overtime wages to its employees. A former employee filed suit in Denver federal court "on behalf of all others similarly situated" who have worked for Shaun's Towing. Shaun Healy, the owner of the business and also a defendant, said he pays his employees "just like everybody else" but declined to comment further about the allegations. Mr. Healy said he was unaware of the suit's filing until notified of it by a reporter. Shaun's Towing, which started in 2005, serves the entire Roaring Fork Valley. The city of Aspen also reached a deal with Shaun's in October to handle its towing work in 2018. Under the agreement, the city will pay Shaun's $185 to tow vehicles to the impound lot at the Pitkin County Landfill, while the violator will pay the city $200. Shaun's will receive $145 to impound cars in town, with the violator paying the city $160, according to city records. Spurring the suit is former Shaun's Towing employee Joseph Durrant, who said in an affidavit, which is part of the complaint, that he will proceed with the case individually if it does not achieve class-action status. The suit is seeking employees who worked for the service since Dec. 6, 2014, "and were paid hourly plus commission, but did not receive overtime for all hours worked over 12 in a day and/or 40 in a week." The suit was filed under the Fair Labor Standards Act, the Colorado Wage Claim Act and the Colorado Minimum Wage Act. Its goal is to "recover all unpaid overtime and other damages allowed under the FLSA" to Mr. Durrant and others who possibly join the suit. Mr. Durrant worked as a driver for Shaun's Towing from August 2015 until February 2016, earning $13 an hour plus a 30 percent commission payment for each tow, says the suit, which alleges he "did not receive overtime compensation at the required rate of time-and-one-half for all hours worked over 40 each workweek." The suit adds that Mr. Durrant and other employees "worked long hours," often more than 50 a week. Shaun's Towing engaged in an "illegal pay practice" that violated state and federal labor laws, the suit argues. "Shaun's is a sophisticated party and employer, and therefore knew (or should have known) its policies were in violation of the FLSA," the suit says. "(Durrant) and the FLSA Collective Members (potential future plaintiffs), on the other hand, are (and were) unsophisticated laborers who trusted Shaun's to pay overtime in accordance with the law." The lead law firm representing Mr. Durrant is Anderson2X PLLC, which is based in Corpus Christi, Texas. The firm did not return messages seeking comment on Dec. 12. SHREVEPORT, LA: Judge Tosses Non-Disclosure Contract Breach Case ---------------------------------------------------------------- Nancy Cook, writing for ArkLaTex, reports that Caddo Parish Judge Ramone Lafitte on Dec. 11 dismissed the lawsuit against the City of Shreveport and City officials that claimed the City breached a non-disclosure contract signed by the City Attorney. However, the class action lawsuit claiming the City has been over-billing customers for more than 10 years is continuing to make its way through the courts. The lawsuit dismissed on Dec. 11 was filed by Scott Pernici and Michael Wainwright in October 2016, after they found errors in the City's water billing software and devised a plan to correct the errors. They notified the City of their findings, and asked for a fee to fix the problem. But the City asked to see their plan, which they agreed to do, providing the officials seeing it signed a non- disclosure agreement. As soon as City officials were shown the plan, the lawsuit alleged they immediately began implementing the changes. According to the press release, "The Court found that no confidential information was disclosed and that the City of Shreveport had the right to correct billing errors without paying Pernici and Wainwright $1.8 million." Shreveport Mayor Ollie Tyler said, "I am very grateful the Court ruled in the City' favor." The class action lawsuit is on the Caddo Parish Civil Court docket for a Jan. 22, 2018 hearing. [GN] SIMMONS FOODS: Faces Class Actions Over Work Camp Programs ---------------------------------------------------------- Brianna Bailey, writing for NewsOK, reports that OK Foods, owned by the Mexican transnational corporation Bachoco, is using workers bussed in from a Muskogee drug recovery program at its Muldrow poultry plant. A worker told The Oklahoman he was required to turn his whole paycheck over to the recovery program to stay out of jail. Arkansas-based OK Foods' parent company Bachoco is one of the largest integrated poultry producers in the world. The company's chicken products are sold at fast-food restaurants and grocery stores across North America. Ray's House is a faith-based program based out of a cluster of trailers and a few metal buildings just off a state highway in Muskogee. It is not licensed by the Oklahoma Department of Mental Health and Substance Abuse Services. John Jamel Thompson, 25, who graduated from Ray's House in October, said Ray's House sent him to work full time at OK Foods' poultry processing plant, an hour's drive away in Muldrow. Mr. Thompson said Ray's House forced him and several other program participants to quit their fast food and other various unskilled jobs in order to be bussed to the poultry plant -- where they could earn higher wages. Thompson said he made $600 a week working at the poultry plant, first on a production line and then as a forklift operator. Thompson said he was required to hand over all of his paycheck to Ray's House in order to stay in the program and out of jail. In a statement, OK Foods said it does not have any contract with Ray's House to provide workers at the Muldrow plant. "We have not had any contract for services agreement with Ray's House, or any other similar rehabilitation group," OK Foods said. "Individual employees earn an equitable wage based on their job skills and are free to direct their earnings to any individual or entity they wish." Mr. Thompson said the men's dormitory at Ray's House was infested with bedbugs and Ray's House sent him to work with two bologna sandwiches every day and nothing else. Ray's House founder Ray Welch, a recovering drug addict with multiple felony convictions, created the Ray's House program in 2009. "This is a faith-based operation," Mr. Welch said. "If you don't get the good Lord in your life, you will be back doing the same old thing." The program requires participants to work and attend services at Choices Church, which is also on the Ray's House campus. Many Ray's House participants are sent to the program through the state court system after probation violations or as a condition for receiving suspended sentences. "He knows you are court ordered there and he throws it in your face all the time," Mr. Thompson said. "That man is hiding behind God and using people to get their paycheck." Mr. Thompson said he sometimes put in 12-hour days at the OK Foods plant, but never saw any of his wages. After graduating from Ray's House, Mr. Thompson said he tried to keep working at the OK Foods plant, but the job was just too far of a drive and he had to quit. Mr. Welch says the bulk of Ray's House clients, about 30 people, now work at OK Foods. Requiring participation strengthens their work ethic and helps bring stability to their lives, he said. "OK Foods has been a blessing to them," Mr. Welch said. One recent graduate from the Ray's House program has even decided to stay at the program so he can continue to keep getting a ride to work each day to the OK Foods plant, he said. "We look for that to be the same way with a few other clients and we will continue to get them back and forth to work. That way they can continue to save money," Mr. Welch said. Ray's House participant Leslie Watson, 58, works cleaning and gutting chickens for OK Foods at the Muldrow plant and said she loves the job. Wearing her OK Foods shirt and smoking a cigarette in front of the women's dorm at Ray's House, Watson said OK Foods treats her well. She works about 35 to 38 hours a week, she said. "I made a choice to be here to try and help myself," Mr. Watson said, "I prefer to work." Similar work camp programs that send court-ordered clients to work gutting chickens for the company Simmons Foods in Arkansas are now facing multiple class-action lawsuits over the practice. The lawsuits accuse those recovery programs and Simmons Foods of using the court system to funnel workers into dangerous, unpaid manual labor jobs. The programs named in the lawsuits are Christian Alcoholics and Addicts in Recovery in Jay and the DARP Foundation in Tahlequah. [GN] SUNRUN INC: Slovin Moves for Certification of Seven Classes ----------------------------------------------------------- The plaintiffs in the lawsuit entitled LYNN SLOVIN, an individual, on her own behalf and on behalf of all others similarly situated v. SUNRUN, INC., a California corporation, CLEAN ENERGY EXPERTS, LLC, a California limited liability company doing business as SOLAR AMERICA, and DOES 1-5, inclusive, Case No. 4:15-cv-05340-YGR (N.D. Cal.), move to certify these classes for both damages and injunctive relief: * CEE ATDS Cellular Class: All natural persons in the United States who received a non-emergency call from CEE to their cellular telephone number through the use of an automatic telephone dialing system at any time from November 20, 2011 through the date the Court certifies the class. The CEE ATDS Cellular Class is limited to Direct Calls made by CEE through its Twillio dialer. This proposed class will include calls by CEE made through Callfire dialer when CallFire completes its production of call records. * Sunrun ATDS Cellular Class: All natural persons in the United States who received a non-emergency call from Sunrun to their cellular telephone number through the use of an automatic telephone dialing system at any time from November 20, 2011 through the date the Court certifies the class. The Sunrun ATDS Cellular is limited to Direct Calls through the Five9 and InContact dialers. * Defendants National Do Not Call Class: All natural persons in the United States whose telephone number was registered with the national Do-Not-Call registry for at least thirty days, who received more than one telephone call by or on behalf of Defendants that promoted solar energy products or services within any 12-month period at any time from November 20, 2011 through the date the Court certifies the class. This proposed class includes Direct Calls by Defendants and will include calls by Defendants through Skype and Callfire when additional records are received in the future. With respect to Sunrun, this class is limited to direct calls by Sunrun and live transfers to Sunrun where the call was transferred by SMT, Media Mix (for calls made up through May 11, 2016) or The Lead Tree. With respect to CEE, this class is limited to Direct Calls by CEE and live transfers to CEE where the call was transferred by Epath, SMT or Lead Tree, or with respect to VTDs, such transfers by Epath to CEE. * Defendants Internal Do Not Call Class: All natural persons in the United States who received more than one call during a 12-month period by or on behalf of Defendants, after requesting that their telephone numbers be placed on Defendants' do-not-call list, at any time from November 20, 2011 through the date the Court certifies the class. This class is limited to Direct Calls by Defendants and live transfers to Defendants where the transfer was from Media Mix, Solar Media Team, The Lead Tree or Epath. "By or on behalf" is defined to mean calls live transferred to Defendants by Media Mix, SMT, The Lead Tree or Epath, or where Epath sent a VTD to Defendants, and with respect to Solar Media Team, where there was more than one direct call by Solar Media Team. * SMT National Do Not Call Class: All natural persons in the United States whose telephone number was registered with the national Do-Not-Call registry for at least thirty days, who received more than one telephone call from Solar Media Team, with the exception of any calls which were live transferred to Sunrun or CEE, on behalf of Defendants that promoted solar energy products or services within any 12-month period, whose telephone number appear in dialer logs produced by Solar Media Team, at any time from November 20, 2011 through the date the Court certifies the class. This proposed class is limited to calls found in SMT's dialer logs, with the exception of calls live transferred to Defendants. * SMT ATDS Cellular Class: All natural persons in the United States who received a non-emergency call from Solar Media Team to their cellular telephone number through the use of an automatic telephone dialing system, with the exception of any calls which were live transferred to Sunrun or CEE, on behalf of Defendants that promoted solar energy products or services, whose cellular number appear in dialer logs produced by Solar Media Team, at any time from November 20, 2011 through the date the Court certifies the class. This proposed class is limited to the calls found in SMT's dialer logs, with the exception of any calls transferred to Defendants. * California Class (Injunctive Relief Only): All natural persons in California who received a call from or on behalf of Defendants which played a prerecorded message(s) without an unrecorded, natural voice first informing the person answering of the name and organization of the caller and either the address or telephone number of the caller, and such call occurred at any time from November 20, 2011 through the date the Court certifies the class. The Plaintiffs also ask the Court to appoint plaintiffs Samuel Katz, Justin Birkhofer, Lynn Slovin and Jeffery Price as class representatives, and to appoint Parisi & Havens LLP and Parasmo Lieberman Law as counsel for the proposed classes. The Plaintiffs further propose a form of notice. The Court will commence a hearing on February 13, 2018, at 2:00 p.m., to consider the Motion. A copy of the memorandum of points and authorities filed in support of the Motion is available at no charge at http://d.classactionreporternewsletter.com/u?f=rfw52jXT The Plaintiffs are represented by: David C. Parisi, Esq. Suzanne Havens Beckman, Esq. PARISI & HAVENS LLP 212 Marine Street, Suite 100 Santa Monica, CA 90405 Telephone: (818) 990-1299 Facsimile: (818) 501-7852 E-mail: dcparisi@parisihavens.com shavens@parisihavens.com - and - Yitzchak H. Lieberman, Esq. Grace E. Parasmo, Esq. PARASMO LIEBERMAN LAW 7400 Hollywood Blvd., #505 Los Angeles, CA 90046 Telephone: (917) 657-6857 Facsimile: (877) 501-3346 E-mail: ylieberman@parasmoliebermanlaw.com gparasmo@parasmoliebermanlaw.com - and - Ethan Preston, Esq. PRESTON LAW OFFICES 4054 McKinney Avenue, Suite 310 Dallas, TX 75204 Telephone: (972) 564-8340 Facsimile: (866) 509-1197 E-mail: ep@eplaw.us - and - Alan Himmelfarb, Esq. THE LAW OFFICES OF ALAN HIMMELFARB 80 W. Sierra Madre Blvd. # 304 Sierra Madre, CA 91024 Telephone: (626) 325-3104 E-mail: consumerlaw1@earthlink.net TABLEAU SOFTWARE: Law Firm Probes Potential Fiduciary Breach ------------------------------------------------------------ Shareholder rights law firm Robbins Arroyo LLP is investigating whether certain officers and directors of Tableau Software, Inc. (NYSE: DATA) breached their fiduciary duties to shareholders. Tableau provides business analytics software products. "I'll close where I began, which is we don't see it fundamentally changing the competitive dynamic for Tableau." Tableau Accused of Concealing Competitive Threats Purchasers of Tableau filed a securities class action complaint against the company's officers and directors for alleged violations of the Securities Exchange Act of 1934 between June 3, 2015 and February 4, 2016. According to the complaint, Tableau failed to disclose that product launches and upgrades by its competitors were negatively impacting the company's profitability. In fact, during the company's November 5, 2015 earnings call, Tableau's Chief Executive Officer Christian Chabot stated: "I'll close where I began, which is we don't see it fundamentally changing the competitive dynamic for Tableau." Then, just a few months later, on February 4, 2016, Tableau's Chief Financial Officer finally admitted that "the competitive dynamic has become more crowded and difficult." As news of the true effects competition was having on Tableau's growth and outlook for profitability reached the market, Tableau's stock fell $73.54 per share, or over 64%, to close at $36.60 per share on February 9, 2016. The stock has yet to recover to its class period high of $114.87. Tableau 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 is a shareholder rights law firm. The firm represents individual and institutional investors in shareholder derivative and securities class action lawsuits. [GN] TAIWAN KAI: Feb. 16 Settlement Fairness Hearing Set --------------------------------------------------- Stueve Siegel Hanson, LLP, and Heins Mills & Olson, P.L.C., disclosed that all persons and entities in the United States, and it territories and possessions, which purchased Aftermarket Automotive Sheet Metal Products ("AMSM") directly from Taiwan Kai Yih Industrial Co., Ltd., Tong Yang Industry Co., Ltd., TYG Products, L.P., Jui Li Enterprise Company, Ltd., Gordon Auto Body Parts Co. Ltd., Auto Parts Industrial, Ltd., or Cornerstone Auto Parts, LLC between January 1, 2003 and May 14, 2015 (the "Settlement Class" or "Class"), may be affected by a class action settlement with Jui Li Enterprise Company, Ltd. Direct Purchaser Plaintiffs claim that Defendants violated the United States federal antitrust laws by agreeing to fix prices and limit supply for AMSM. AMSM includes hoods, doors, bumpers, fenders, bonnets, floor panels, trunk assemblies, trunk lids, tailgates, roof panels and reinforcement parts. Defendants have denied and continue to deny each and all of the claims and contentions alleged by Direct Purchaser Plaintiffs, as well as all charges of wrongdoing or liability. The Court has not decided in favor of either Party. A proposed Settlement has been reached with Jui Li Enterprise Company, Ltd. for USD$3,350,000 in cash, which, after Taiwan taxes, will net USD$2,680,000 in a settlement fund ("Settlement Fund"). Prior settlements were reached with Tong Yang Industry Co., Ltd., Taiwan Kai Yih Industrial Co., Ltd., and TYG Products, L.P., and Gordon Auto Body Parts Co. Ltd. After deducting costs, fees and expenses, the balance of the Jui Li Settlement Fund will be distributed to the Class on a pro-rata basis depending on how much you spent on AMSM during the Class Period from all the Defendants. The lawsuit will continue against the Non-Settling Defendants -- Auto Parts Industrial, Ltd. and Cornerstone Auto Parts, LLC. You are included in the Court certified Settlement Class if you fit the following description: All persons and entities in the United States, and its territories and possessions, that purchased Aftermarket Automotive Sheet Metal Products directly from any of the Defendants between January 1, 2003 and May 14, 2015. You are included in the Court certified Litigation Class if you fit the following description: All persons and entities in the United States, and its territories and possessions, that purchased AM Sheet Metal Parts directly from a Defendant between at least as early as January 1, 2003, and September 4, 2009. If you are included in the Court certified Settlement Class and you submitted a valid Claim Form in 2015, you will automatically receive a payment from this Settlement if it is approved and becomes final. If you are included you may object to all or any part of the Settlement and give reasons why you think the Court should not approve it. Your written objection must be mailed to the Settlement and Litigation Administrator, Class Counsel, Counsel for Jui Li, and the Court and must be postmarked no later than January 11, 2018. You may also request to appear and speak at the Final Approval Hearing. You may have your own attorney attend, at your own expense, but are not required to. If you are included in the Court certified Settlement Class and Court certified Litigation Class you may ask to be excluded from the Settlement and Litigation. To do so, you must send a letter by mail to the Settlement and Litigation Administrator stating that you want to be excluded from Fond du Lac Bumper Exchange, Inc., et al. v. Jui Li Enterprise Co. Ltd., et al., 2:09-cv-00852 (E.D. Wis.) postmarked no later than January 11, 2018. More information regarding how to object to the Settlement, request to appear at the Final Approval Hearing, and request how to exclude yourself from the Settlement Class and Litigation Class can be found in the Long Form Notice available at www.AftermarketSheetMetalSettlement.com The Court will hold the Final Approval Hearing beginning at 11:30 a.m. February 16, 2018, at the United States District Court for the Eastern District of Wisconsin. At this hearing, the Court will listen to any objections and consider whether to approve the Settlement as fair, reasonable, and adequate; a request by Class Counsel for attorneys' fees and expenses; and a service award of $5,000 to each of the Class Representatives (Fond du Lac Bumper Exchange Inc. and Roberts Wholesale Body Parts, Inc.). Class Counsel is requesting attorneys' fees in the amount of no more than 33% of the Net Settlement Fund (that is, the Settlement Fund amount after deduction of Taiwan taxes) and payment of litigation costs and expenses. These costs and expenses include each law firm's reported expenses and common costs to date. As the litigation continues, Class Counsel will incur more expenses and may ask the Court for an additional payment. Class Counsel's motion for attorneys' fees and costs and service awards will be available at www.AftermarketSheetMetalSettlement.com on or about December 28, 2017. For more information go to www.AftermarketSheetMetalSettlement.com or call 1-866-413-5892. [GN] TEACHERS HEALTH: Faces Insurance Fraud Class Action --------------------------------------------------- Darcy Spears, writing for KTNV, reports that we count on them to teach and care for our children every day. But in many cases, they cannot care for themselves. "Medication is not affordable and access to care is not available," Clark County School District teacher Sheri DeBartolo told Darcy Spears in May. DeBartolo has since left CCSD in order to get more reliable health insurance. "And it's very difficult and it's very frustrating," said former CCSD school psychologist Diana Goodsell, who also quit CCSD over inadequate healthcare. Goodsell, DeBartolo and CCSD Special Education Facilitator Paul Feaker are spearheading the lawsuit against Teachers Health Trust, its administrator, WellHealth, and its board of directors for negligence, fraud and deception. "When you purchase a product, especially a health insurance product, you expect to have your medical claims paid," said Attorney Matthew Callister, whose firm is representing the plaintiffs. According to the lawsuit, Teachers Health Trust routinely denies valid medical claims and charges sky high co-pays. CCSD educators often have to choose between paying out of pocket or not getting care. After Diana Goodsell was side-swiped in a car accident, she was forced to delay a needed cervical spinal fusion surgery when her entire year's out-of-pocket expense was demanded up front. "It was $6,800 in one lump sum." She says she didn't find that out until the morning of the surgery when she was being admitted. "It was shocking to me that there would be any kind of average family that worked for the school district -- or even the average family in this valley -- that could afford to pay that much to have a needed surgery." The lawsuit also says teachers are being turned away by doctors, even "sued by providers WellHealth refused to pay." "I can't fathom the fact that we can treat people so poorly who do so much for the kids in this community, and do so little to make sure that they're taken care of, and really to the point of putting people and families on the brink of medical bankruptcy." The school district says it provided a $9 million-dollar bailout to the Teachers Health Trust in 2016, but the trust paid 100,000 fewer claims in 2016 than the year before. The class action could cover an estimated 30,000 people. [GN] TEXAS: Judge Says Foster Care System "Broken" --------------------------------------------- Michael Marks, writing for Texas Public Radio, reports that a six-year-old class action lawsuit over the system of foster care in Texas may be reaching a climax. It's the case in which a federal judge found Texas' foster care system to be so dangerous to foster kids as to be unconstitutional. U.S. District Judge Janis Graham Jack has called the system that cares for some 10,700 kids "broken." Now, court special masters are making recommendations that are sure to attract pushback from the state of Texas, which has been aggressively privatizing the foster care system. Robert Garrett of the Dallas Morning News reports Texas could be forced by the court to recruit thousands of foster parents, as the crisis in child protective services continues. Garrett says private agencies took over recruiting foster parents in Texas some 25 years ago, and the state has continued to privatize the system since then. In the 2000s, a number of children died in foster care, and what Garrett calls "bad operators" were exposed. "There has been a push for seven or eight years now by the state to further privatize [foster care] as the way to solve it," he says, "by putting one company in charge in a region." The deaths and abuses of children in the system resulted in the 2011 case, which is now close to an end, as court-appointed special masters are set to release a roadmap for foster care reform, that requires the state to find more foster parents. The court says the state also needs to hire more case workers, known as conservatorship workers, who interact with foster children directly, and provide information to the court. The court also wants the state to create an electronic case file for each foster child. Mr. Garrett says the distribution of families available to take on foster children in Texas uneven. Some areas have a surplus of families, while others have too few. He says the latest foster care bill passed by the Legislature amounts to "privatization on steroids." The legislation calls for a community-based care model, with a lead agency managing foster care services in a large region, and hiring contractors and subcontractors to handle local cases. Mr. Garrett says Child Protective Services, or CPS, the state agency charged with implementing the Legislature's plan, isn't in sync with the court's special masters and their plan. "The CPS is basically saying, 'We're improving the system on our own, thank you, and we don't need a federal judge to monitor us.' But it's not clear whether the state is going to be able to win at the Fifth Circuit, and get rid of this judge looming over everything it does in child welfare for the next few years," he says. [GN] TOYS OUTLET: "Guzman" Claims Overtime Pay, Minimum Wage ------------------------------------------------------- Jorge Bolivar Guzman, individually and on behalf of others similarly situated, Plaintiff, v. Toys Outlet Inc., Izzy Furniture Inc. and Israel Aboutboul, Defendants, Case No. 17-cv- 09901, (S.D.N.Y., December 19, 2017), seeks to enjoin defendants and all persons acting in concert with them from proceeding with, consummating, or closing the proposed merger between Deltic and a subsidiary of Potlatch 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. Defendants own, operate, or control two furniture stores, located at 410 East 149th Street, Bronx, New York 10455 under the name "Furniture Express" and at 385 East 149th Street, Bronx, New York 10455 under the name "Izzy Furniture," where Guzman was employed as general laborer and claims to have worked in excess of 40 hours per week, without appropriate minimum wage and overtime compensation. Plaintiff alleges that Defendants failed to maintain accurate recordkeeping of the hours worked, failed to pay him appropriately for any hours worked, either at the straight rate of pay or for any additional overtime premium. 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 E-mail: Faillace@employmentcompliance.com UBER TECHNOLOGIES: Settles Second US Lawsuit Over 2014 Rape ----------------------------------------------------------- Aroon Deep, writing for Medianama, reports that Uber has settled the second US lawsuit filed by the victim of a widely covered 2014 rape that pit the company against Indian police, reports Reuters. The victim withdrew her first lawsuit, a class-action demanding $15 million, in 2015. She filed her second lawsuit after it emerged that Eric Alexander, a then-top Uber Asia- Pacific executive, flew down to India and got his hands on her confidential medical records. A toxic culture This marks a turbulent reversal of Uber's culture, which was marked by the firing of Travis Kalanick, the company's founding CEO. His firing came in the heels of increasing shareholder pressure on the company to fix the toxic culture it had fostered. This culture problem started getting attention after a blog post by a former Uber engineer, Susan Fowler. Fowler detailed systematic gender discrimination and harassment by the company's employees and executives. Dara Khosrowshahi was hired away by Uber's board from the travel website Expedia to replace Kalanick as CEO. Since his appointment as CEO, he has taken a more let's-fix-this approach to dealing with regulators and law enforcement around the world. This is in contrast with what happened before Kalanick's ousting, when Uber tried to make sure regulators couldn't even get on an Uber. After the service was banned in London, for instance, Mr. Khosrowshahi wrote a letter apologising to the city's residents and vowed to make things right. Later, Mr. Khosrowshahi ordered that a security breach that had taken place under Kalanick be made public. T he breach affected over 57 million riders and drivers. It was hushed up by top Uber management at that time, and the hackers were paid off to delete copies of the stolen data (it's not clear if they deleted that data). The security officials who dealt with the breach resigned soon after. Moving on Mr. Khosrowshahi faces the daunting task of reforming a work culture where a reliability team was said to have just around 3% women; one where its previous CEO privately accused its competitor Ola of fabricating the Delhi rape case against it. While Mr. Khosrowshahi's course correction atones for its past mistakes -- perhaps settling the rape victim's lawsuit is part of moving on -- it remains to be seen how much of its global growth and dominance can withstand these changes. Uber also faces a potentially damaging lawsuit from Google's Waymo self-driving car company. The suit alleges that an employee poached from the latter had stolen several files from Google before leaving. The company is now being investigated by the US's Justice Department. Closer to home, both Uber and Ola face discontent from drivers, some of whom say they are facing financial ruin as the companies' incentives for drivers reduce from what they used to be. [GN] UNITED AIR: Removes "Johnson" BIPA Violations Suit to N.D. Ill. --------------------------------------------------------------- The putative class action lawsuit styled DAVID JOHNSON, individual and on behalf of similarly situated individuals v. UNITED AIR LINES, INC., a Delaware corporation, and UNITED CONTINENTAL HOLDINGS, INC., a Delaware corporation, Case No. 2017-CH-14832, was removed on December 8, 2017, from the Circuit Court of Cook County, Illinois, to the U.S. District Court for the Northern District of Illinois. The District Court Clerk assigned Case No. 1:17-cv-08858 to the proceeding. On November 7, 2017, Mr. Johnson filed a class-action complaint against the Defendants, alleging that they have violated the Illinois Biometric Information Privacy Act by implementing a timekeeping system that relied on the collection, storage, and usage of employees' fingerprints and biometric information without informed consent. The Plaintiff further alleges that the Defendants violated BIPA by not making available a written policy addressing retention and destruction of such information and not obtaining consent for any transmission of such information to third parties.[BN] The Plaintiff is represented by: Myles McGuire, Esq. Evan M. Meyers, Esq. MCGUIRE LAW, P.C. 55 W. Wacker Drive, 9th Floor Chicago, IL 60601 Telephone: (312) 893-7002 Facsimile: (312) 275-7895 E-mail: mmcguire@mcguirelaw.com emeyers@mcguirelaw.com The Defendants are represented by: Gerald L. Pauling, Esq. Ada W. Dolph, Esq. Thomas E. Ahlering, Esq. Abigail Cahak, Esq. SEYFARTH SHAW LLP 233 S. Wacker Drive, Suite 8000 Chicago, IL 60606-6448 Telephone: (312) 460-5000 Facsimile: (312) 460-7000 E-mail: gpauling@seyfarth.com adolph@seyfarth.com tahlering@seyfarth.com acahak@seyfarth.com UNITED STATES: Veterans File Class Action Over 1966 Bomb Accident ----------------------------------------------------------------- Dave Collins, writing for The Associated Press, reports that veterans who say they responded to a 1966 accident involving U.S. hydrogen bombs in Spain and then became ill from radiation exposure asked a federal appeals court on Dec. 11 to allow a class action lawsuit against the U.S. Department of Veterans Affairs. Yale Law School students in Connecticut filed the request with the U.S. Court of Appeals for Veterans Claims on behalf of veterans who sought disability benefits from the VA but were denied. The students represent Air Force veteran Victor Skaar, of Nixa, Missouri, and want to include other veterans who believe they deserve VA benefits. The motion names Veterans Affairs Secretary David Shulkin as the defendant. The VA said on Dec. 11 it hadn't seen the filing and couldn't address it. On Jan. 17, 1966, a U.S. B-52 bomber and a refueling plane crashed into each other during a refueling operation near the southern Spanish village of Palomares, killing seven of 11 crew members but no one on the ground. At the time, the U.S. was keeping nuclear-armed warplanes in the air near the Soviet border as the Cold War was in full swing. The midair collision resulted in the release of four U.S. hydrogen bombs. None of the bombs exploded, but the plutonium- filled detonators on two went off, scattering 7 pounds (3 kilograms) of highly radioactive plutonium 239 across the landscape. The 1,600 servicemen who were sent to the crash site area to recover the weapons and clean up the contamination were exposed to dangerous levels of radiation daily for weeks or months at a time, according to the court motion filed on Dec. 11. Many of the servicemen later developed various forms of cancer, blood disorders, heart and lung dysfunction and other sicknesses but were denied disability benefits by the Department of Veterans Affairs. "This class action seeks to compel the VA to acknowledge that veterans at Palomares participated in a radiation-risk activity that would make any radiogenic conditions they developed presumptively service-connected," said Derek Mraz, one of the Yale students working on the case. "The VA acknowledges this service connection for many other atomic veterans." Mr. Skaar, the Air Force veteran, said he suffers from a blood disorder and developed melanoma and prostate cancer, which were successfully treated. He said he believes his ailments were related to his service in Palomares. Mr. Skaar, 81, said he and other military members responded quickly to the Palomares accident and did not wear protective clothing or masks as they determined the scope of the contamination and "cleaned" it up. The cleanup involved removing topsoil in some areas and hosing down buildings with water. Mr. Skaar said he and his fellow servicemen did what they were ordered to do without complaint at Palomares and now feel betrayed by their government. "It's absolutely ridiculous to see how we have been treated," he said. "We're all hurt. We were ignored, absolutely ignored." The Yale students said they believe this is the first federal appeals court case involving Palomares veterans. The Court of Appeals for Veterans Claims, which hears appeals of VA denials of benefits, only recently was given authority to hear class action cases, they said. The law school students also sued the Department of Defense in October on behalf of veterans groups seeking to compel it to release records relating to the Palomares accident, including environmental testing data and urine testing results. A department spokesman said he could not comment on pending litigation. The Yale students said original testing showed that many Palomares veterans were exposed to dangerously high levels of radiation, but a 2001 report commissioned by the VA concluded those results were "unreasonably high." And in 2013, VA officials used the 2001 report to conclude the veterans' exposure to radiation wasn't high enough to qualify them for free VA medical care and other benefits. The students said the report and the 2013 conclusion are flawed. U.S. Sen. Richard Blumenthal, D-Connecticut, said the VA needs to take another look at the veterans' claims. "These veterans were exposed to dangerous radiation while they faithfully served our nation in the cleanup of the hydrogen bomb accident," he said in a statement. "They deserve a fair and consistent process for determining veterans benefits related to such exposure." [GN] UNITED STATES: Veterans Affairs Mum on Radiation Class Action ------------------------------------------------------------- The Associated Press reports that the U.S. Department of Veterans Affairs says it can't comment on a class action lawsuit being sought by veterans who say they responded to a 1966 accident involving U.S. hydrogen bombs in Spain and then became ill from radiation exposure. Yale Law School students in Connecticut on Dec. 11 filed a request with the Court of Appeals for Veterans Claims on behalf of veterans denied VA disability benefits. A VA spokesman says the VA has not seen the filing and can't address it. On Jan. 17, 1966, a U.S. B-52 bomber and a refueling plane crashed into each other near the Spanish village of Palomares, releasing four hydrogen bombs and scattering highly radioactive plutonium 239. Servicemen sent to clean the contamination say they developed cancers and blood disorders but were denied disability benefits. A federal appeals court has been asked to allow a class-action lawsuit against the Veterans Affairs Department by veterans who say they became ill from radiation exposure after responding to a 1966 accident involving U.S. hydrogen bombs in Spain. Yale Law School students in Connecticut filed the request on Dec. 11 with the U.S. Court of Appeals for Veterans Claims on behalf of veterans who sought disability benefits from the VA but were denied. The students represent Air Force veteran Victor Skaar, of Nixa, Missouri, and want to expand the lawsuit to include other veterans. VA officials did not immediately return messages on Dec. 11. Radioactive plutonium was released near Palomares, Spain, in January 1966, after a U.S. B-52 bomber and refueling plane crashed. Four hydrogen bombs crashed, but there were no nuclear explosions. [GN] US BANCORP: Tiran Appeals Ruling in "Wert" Suit to Ninth Circuit ---------------------------------------------------------------- Objector Lonnie Tiran filed an appeal from a court ruling in the lawsuit titled Monica Wert, et al. v. U.S. Bancorp, et al., Case No. 3:13-cv-03130-BAS-AGS, in the U.S. District Court for the Southern District of California, San Diego. As previously reported in the Class Action Reporter, District Judge Cynthia Bashant granted the Parties' Motion for Final Approval of Class Action Settlement. Ms. Wert, on behalf of herself and other class members, filed claims against the Defendants, claiming they failed to provide compliant itemized wage statements in violation of California Labor Code Section 226, and the Plaintiff was entitled to the recovery of civil penalties for this violation under the Private Attorneys General's Act. Additionally, the Plaintiff requested civil penalties under the PAGA, alleging that Defendants violated California Labor Code Section 512 when they failed to comply with California's meal period requirements. The appellate case is captioned as Monica Wert, et al. v. U.S. Bancorp, et al., Case No. 17-56849, in the United States Court of Appeals for the Ninth Circuit. The briefing schedule in the Appellate Case is set as follows: -- Transcript must be ordered by January 8, 2018; -- Transcript is due on February 5, 2018; -- Appellant Lonnie Tiran's opening brief is due on March 19, 2018; -- Appellees Does, U.S. Bancorp, U.S. Bank National Association and Monica R. Wert's answering brief is due on April 19, 2018; and -- Appellant's optional reply brief is due 21 days after service of the answering brief. Objector-Appellant Lonnie Tiran, of San Diego, California, appears pro se.[BN] Plaintiff-Appellee MONICA R. WERT, Individually and on Behalf of Other Members of the Public Similarly Situated, is represented by: George C. Aguilar, Esq. ROBBINS ARROYO LLP 600 B Street, Suite 1900 San Diego, CA 92101 Telephone: (619) 525-3990 E-mail: gaguilar@robbinsarroyo.com Defendants-Appellees U.S. BANCORP and U.S. BANK NATIONAL ASSOCIATION are represented by: Joan Fife, Esq. WINSTON & STRAWN LLP 101 California Street San Francisco, CA 94111 Telephone: (415) 591-1513 E-mail: jfife@winston.com - and - Emily Claire Schuman, Esq. Emilie Consuelo Woodhead, Esq. WINSTON & STRAWN LLP 333 South Grand Avenue Los Angeles, CA 90071 Telephone: (213) 615-1737 E-mail: ewoodhead@winston.com VIRGINIA CREDIT: McLamb Sues Over Collection of Overdraft Fees -------------------------------------------------------------- VERONICA MCLAMB v. VIRGINIA CREDIT UNION, Case No. 3:17-cv-00812- MHL (E.D. Va., December 8, 2017), is a purported class action lawsuit seeking monetary damages, restitution and declaratory relief from the Defendant arising from the unfair and unconscionable assessment and collection of "Overdraft Fees" on accounts that were never actually overdrawn. VACU is a credit union with approximately $3.5 billion in assets. VACU is one of the 55 largest credit unions in the country. VACU is headquartered in Richmond, Virginia, and does business across the state of Virginia.[BN] The Plaintiff is represented by: Kristi C. Kelly, Esq. Andrew J. Guzzo, Esq. Casey S. Nash, Esq. KELLY & CRANDALL, PLC 3925 Chain Bridge Road, Suite 202 Fairfax, VA 22030 Telephone: (703) 424-7572 Facsimile: (703) 591-0167 E-mail: kkelly@kellyandcrandall.com aguzzo@kellyandcrandall.com casey@kellyandcrandall.com - and - Jeffrey D. Kaliel, Esq. KALIEL PLLC 1875 Connecticut Ave. NW, 10th Floor Washington, DC 20009 Telephone: (202) 350-4783 E-mail: jkaliel@kalielpllc.com - and - Jeff Ostrow, Esq. Jonathan M. Streisfeld, Esq. KOPELOWITZ OSTROW FERGUSON WEISELBERG GILBERT 1 West Las Olas Blvd., 5th Floor Ft. Lauderdale, FL 33301 Telephone: (954) 525-4100 E-mail: ostrow@kolawyers.com streisfeld@kolawyers.com VOLVO CARS: Must Face Hybrid SUV False Marketing Class Action ------------------------------------------------------------- Dee Thompson, writing for Cook County Record, reports that a federal judge has ruled that a couple who were upset over their hybrid Volvo's ability to hold a charge have legitimate claims against Volvo, turning aside the automaker's attempt to again pull the plug on the couple's class action lawsuit. In April 2016, Xavier Laurens and Khadija Laurens filed their suit against Volvo Cars of North America LLC and Volvo Car USA LLC, maintaining the twin-engine gas-electric Volvo XC90 T8 they had purchased had not performed as advertised. Specifically, it wouldn't go the advertised 25-mile range on a full battery charge. The opinion was issued by U.S. District Judge Harry D. Leinenweber in November in the U.S. District Court for the Northern District of Illinois. Judge Leinenweber noted he had previously dismissed the case in October 2016, after Volvo filed a motion arguing the case was moot because Volvo had offered to refund the Laurens' purchase price. However, the couple appealed, and the U.S. Seventh Circuit Court of Appeals overturned Judge Leinenweber's decision and sent the case back to him for further proceedings. According to their lawsuit, the Laurens purchased their Volvo after reading it could go about 25 miles on electric battery power alone. They claimed they wanted to purchase the car because of environmental concerns and to save money on gas. After the purchase, however, they found the car could only go eight to 10 miles on a single charge. They returned the car to the dealer so the reason for that mileage discrepancy could be discovered. "The dealer initially pointed out to them that the 'sticker' on the new Volvo claimed that the T8 had only a 13-mile electric driving range rather than the 25-mile range promised in the advertising material," Judge Leinenweber said in the decision. "The dealer [then] sought to test drive the T8 but was only able to travel 10 miles in electric mode under normal driving conditions. The dealer then tested the T8 by driving at no more than 40 mph, with all safety features and the heat turned off, and was able to achieve a distance of between 14 and 18 miles." Based on that, the Laurens brought a four-count putative class action suit for alleged violation of the Illinois Consumer Fraud Act (CFA), common law fraud, breach of express warranty and unjust enrichment. Volvo argued that a CFA claim can't stand if the representations are not false. The company claimed that the press release the Laurens' read spoke of mileage in kilometers, and stated that "vehicle specifications may vary from one country to another and may be altered without prior notification," according to the court decision. The plaintiffs countered that the defendants were ignoring the advertising materials, and that "all of these marketing materials contain mileage claims that [the] plaintiffs' Volvo dealer was unable to come close to matching. They also point out that it does not take a genius to convert 40 kilometers to 25 miles," according to Judge Leinenweber's decision. Judge Leinenweber dismissed all of the counts of the defendants' motion, except the CFA count against Volvo Cars of North America LLC. "If, in fact, the T8 could only achieve 8 to 10 miles, as opposed to 25, this could be considered a violation of an express warranty, and the allegation clearly rises above the speculative level," Judge Leinenweber said in the decision. The Laurenses were represented in the matter by attorneys with the firm of Siprut P.C., Chicago. Volvo was defended by the firm of Reed Smith LLP, of Chicago. [GN] WOLVERINE WORLD: Brokovich Serves as Consultant in PFAS Case ------------------------------------------------------------ Mark Tower, writing for MLive, reports that environmental and consumer advocate Erin Brockovich was set to join a team of attorneys at a meeting with local residents impacted by water contamination tied to the dumping of toxic chemicals by Rockford- based Wolverine World Wide. Ms. Brockovich is working as a consultant for one of three legal firms pursuing a class action lawsuit against Wolverine World Wide, 3M and Waste Management. The case centers around the per- and polyfluoroalkyl substances named PFAS (or PFCs) in 3M Scotchgard that Wolverine used for decades to make Hush Puppies shoes at the company's former Rockford tannery, demolished in 2010. The lawsuit, filed on Dec. 1 in the U.S. District Court Western District, alleges the companies dumped toxic waste and polluted groundwater in Belmont, Rockford and other areas of Kent County. It seeks blood testing, monitoring, and damages for residents harmed by the dumping. Ms. Brockovich and representatives from the three law firms plan to meet directly with area residents. The complaint filed against the three companies was announced Dec. 5 in a press release from the law firms, which were Michigan-based The Miller Law Firm, California's Robbins Geller Rudman & Dowd and New York's Weitz & Luxenberg. The lawsuit initially named eight plaintiffs, each identified as a current or former resident affected by the contamination of drinking water in the area. It claims the federal court has jurisdiction in the case under the Class Action Fairness Act because the total claims of class members exceed $5 million. Rediscovery of a forgotten 1960s-era landfill on House Street NE in Belmont in 2017 sparked an ever-expanding investigation into Wolverine's waste disposal around the northern Grand Rapids suburbs. Next door to the House Street dump, drinking water wells are polluted at levels far above the EPA's health level advisory level for PFOS and PFOA. The Michigan Department of Environmental Quality is also investigating Wolverine's dumping in Plainfield Township in connection to PFAS chemicals found at low levels in the township municipal water system, which serves 40,000 people. Ms. Brockovich, who works as a consultant for Weitz & Luxenberg on certain projects, issued a statement in advance of the upcoming community meeting. "The scope of this contamination is alarming, and thousands in Kent County are now faced with unsafe drinking water and increased health risks," Ms. Brockovich said in the statement. "This lawsuit puts these corporations on notice that they will be held accountable for their actions and should make it clear to other corporate polluters that they can't get away with poisoning our water." Ms. Brockovich first signaled her interest in the Kent County issue in an Oct. 24 Facebook post. Ms. Brockovich has also taken on the issue of PFAS contamination elsewhere in Michigan, assisting a group of veterans who say they've been poisoned the toxic chemicals found in firefighting foam used at Wurtsmith Air Force Base in Oscoda. In response to the news of the new class action lawsuit, Wolverine said in a statement it does not comment on ongoing litigation. William A. Brewer III -- wab@brewerattorneys.com -- partner at Brewer, Attorneys & Counselors and counsel for 3M, responded on the company's behalf. "Under Michigan law, we believe 3M has no liability for any damages allegedly caused by Wolverine's manufacturing and waste disposal practices," Brewer said in a statement. "3M never manufactured or disposed of PFC-containing materials in Michigan. We believe this lawsuit lacks merit." The class action lawsuit accuses Waste Management of failing to properly maintain the State Disposal Landfill it owns through a subsidiary. The landfill, located at 3954 East Beltline Ave. NE, is a Superfund site and a known Wolverine dump site. A Waste Management spokesperson responded by saying the company is aware of the lawsuit and will "respond accordingly via the court system." The lawsuit filed in federal court is not the first legal action taken by local residents. Three complaints were filed against the company in Kent County Circuit Court on Tuesday, Nov. 28. [GN] * Arbitrators Found to Have Significant Pro-Business Bias --------------------------------------------------------- Nicholas Lindseth, writing for Brown Political Review, reports that the Equifax hack shocked Americans in both its scope and preventability. The Social Security numbers of over 143 million citizens were exposed, despite the fact that a patch for the exploited vulnerability had been available for months prior to the breach. As customers attempted to secure their exposed information using Equifax's reparation offer of one free year of credit monitoring, they came up against a roadblock in their pursuit of accountability. Using the one-year service required consumers to sign a mandatory arbitration clause. This meant that any disputes raised against the company would have to be resolved outside the court system through individual arbitration. Unfortunately, arbitrators often have incentives to side with corporations, and payouts for individuals often pale in comparison to the filing fee. Massive public outcry forced Equifax to clarify that this clause applied only to claims arising from the one year of monitoring, as opposed to the breach, but further public pressure pushed the company to waive it entirely. All this commotion shined a light on an issue little-known to the public, but one continually rehashed among lawmakers and regulators. A 2015 survey conducted by the Consumer Financial Protection Bureau (CFPB) revealed that 75 percent of Americans did not know whether they had signed an arbitration clause with a financial company, despite the ubiquity of such clauses within the industry. Most recently, the CFPB issued a regulation in July banning arbitration clauses that restrict a consumer's right to pursue class-action lawsuits. In late October, however, the Senate repealed the rule, meaning that, although it seems unlikely, broad legislative action is sorely needed. The arguments in favor of mandatory arbitration clauses are narrow and cater to business interests at the expense of consumers and employees. From the perspective of business owners, arbitration clauses allow cases to be settled cheaply, privately, and expediently. Most importantly, arbitration clauses often prohibit class action suits, meaning that businesses are insulated from large damages and consumers are disincentivized from even pursuing their claims in the first place. Many argue that such clauses help protect small business from frivolous lawsuits, which significantly burden economic growth, and ensure that cases avoid juries, where many tend to side against the corporation even without adequate evidence of wrongdoing. The drawbacks of such a system directly target consumers and employees. In the case of the 2016 Wells Fargo scandal, which revealed that the bank encouraged, and sometimes coerced, employees to open millions of additional accounts for preexisting customers without consumer authorization in order to meet sales quotas, consumers had raised claims against such practices in arbitration venues. Yet the private nature of these proceedings and the inability of customers to form a class action suit kept this behavior out of the public eye and prevented a suit from taking place earlier. In the case of Fox News, the inclusion of an arbitration clause in Gretchen Carlson's employment contract meant that her sexual harassment suit against Roger Ailes would be kept behind closed doors and the details of the network's work environment had to be hidden from the public. As a result of such clauses, large firms insulate themselves from any real accountability and incentives to change malicious behavior. Bad practices are simply not exposed. Further compounding the problem, arbitrators have been found to have a significant pro-business bias. According to the advocacy group Public Citizen, a four-year survey of California arbitration claims involving banks and credit card companies revealed that arbitrators ruled in favor of consumers only six percent of the time. Arbitrators have a financial incentive to side with businesses, because they can become repeat customers. At every step of the way, mandatory arbitration clauses systemically favor businesses in ways that disproportionately harm consumers and employees. Prior to 1925 -- and even continuing into the mid-century -- arbitration clauses were met with hostility in the court system, making their rise all the more confusing. But in 1925, the Federal Arbitration Act (FAA) laid the groundwork for mandatory arbitration as we see it today. Though not intended to open the floodgates of mandatory arbitration, the bill has since been interpreted by the Supreme Court as creating "a national policy favoring arbitration" that governs both federal and state courts, setting a very arbitration-friendly modern precedent. Challenges to this standard have been placed before the Supreme Court in recent years, most notably with the 2013 case of AT&T Mobility LLC v. Concepcion regarding arbitration clauses in consumer contracts. According to California state law, any arbitration clause that included a class action waiver was unenforceable since it protected one of the parties from recourse taken against them for their wrongful behavior. In a 5-4 decision, the Court ruled that "individualized proceedings are an inherent and necessary element of arbitration that do not permit blanket rules banning class action waivers." In effect, this rejected any sort of state law that would attempt to preempt and avoid the mandates of the FAA. At the state level, there have been moderately successful attempts at decreasing the power of mandatory arbitration clauses. In New Jersey, the state's Superior Court in the cases of Dispenziere v. Kushner Companies and Atalese v. United States Legal Services Corp held that the arbitration clauses in subject were unenforceable as they lacked "clear and unambiguous language" that the "plaintiff is waiving her right to seek relief in court for a breach of her statutory rights." By relying on the principle of mutual consent -- the requirement that parties agree on the basic facts of a contract when agreeing to one -- the New Jersey court used the exception permitted by the FAA that allows courts to void arbitration clauses "upon such grounds as exist at law or in equity for the revocation of any contract." Nevertheless, these rulings provide little hope for widespread change since arbitration clauses could easily be amended to include the necessary language. With legal precedent well established -- the Supreme Court is expected to reaffirm the validity of mandatory arbitration clauses in employee contracts in 2017 -- and the FAA still on the books, the only way forward is through regulatory or legislative action that would rewrite the rules governing arbitration clauses. The Senate's repeal of the CFPB's ruling was a step in the wrong direction. For consumers in the financial industries under the agency's purview, the rule would have allowed them to form class actions that would more easily and effectively recover damages resulting from corporate malfeasance. Given the larger payments that corporations would theoretically be doling out, this would have undoubtedly changed practices within the industry and created strong deterrents against misbehavior. In the wake of the CFPB regulation's repeal, broader action, which can only be achieved through legislation overruling the FAA, must be taken. In 2016, Democratic Senators Patrick Leahy of Vermont and Al Franken of Minnesota introduced a bill dubbed the Restoring Statutory Rights Act, which would have, according to George Slover of Consumers Union, "restore[d] the Federal Arbitration Act to what Congress intended, arbitration as a way for businesses to decide to handle their business disputes, but not as a way to insulate their misconduct from accountability to consumer." Unfortunately, it died in Congress before being put to a vote. With Republican majorities in both chambers of Congress, any similar bills in the near future are likely to suffer the same fate. The need for pressure from advocacy groups so that this issue becomes a legislative priority in the next Democratic Congress is even more critical in light of this bleak prognosis. The Equifax hack provided a timely reminder of the ways that mandatory arbitration clauses serve business interests while failing to protect consumers and employees. By keeping proceedings in private and preventing class-action lawsuits, the current system insulates companies from accountability and perpetuates bad behavior. In their mandate that parties pursue claims individually -- often at exorbitant expense -- arbitration clauses prevent claimants from doing so in the first place. And even in cases where claims are pursued, a pro-business bias distorts proceedings. At a time when consumer and employee rights are slowly eroding, banning mandatory arbitration clauses provides a chance to restore balance and justice to a system which is sorely lacking both. [GN] * Defense Bar Losing War in Securities Class Action Litigation -------------------------------------------------------------- John F. Nucci, Esq. -- JFNucci@mintz.com -- and Peter M. Saparoff, Esq. -- PMSaparoff@mintz.com -- of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., in an article for The National Law Review, report that Douglas Greene, one of the United States' most well-known securities litigators -- on either side of the bar -- recently wrote a four-part treatise, titled Who is Winning the Securities Class Action War -- Plaintiffs or Defendants?, in which he discussed the various ways in which the defense bar is losing the "securities class action war." Mr. Greene's thorough analysis is well-worth reading in full, but we will briefly summarize and comment on his piece. In part I, Mr. Greene notes that, while defendants often win battles (such as the passing of the Private Securities Litigation Reform Act of 1995 and several victories at the U.S. Supreme Court), they are "losing the war." Mr. Greene posits that this is due to several key differences between the plaintiffs' bar and the defense bar. For example, while the plaintiffs' bar is relatively small, the defense bar is highly splintered and filled with attorneys who may not be qualified or specialized enough to deal with the specific issues that arise in a securities class action lawsuit. He also points to the plaintiffs' bar's contingent-fee structure, which arguably incentivizes efficiency, in contrast to the defense bar's arguably inefficient structure due to hourly billing and the safety net of D&O insurance reimbursement. Mr. Greene goes on to explain the series of factors which he believes led to the plaintiffs' bar's current position as the industry leader. He notes cases such as the stock options backdating scandal giving valuable experience and cash windfalls to plaintiffs' firms that filed options backdating cases. The same result occurred in the wake of the credit crisis, during which "the plaintiffs' bar had a war chest and was ready for battle." He also notes that the Chinese reverse-merger scandal created a new breed of securities class action plaintiffs' firms when smaller plaintiffs' firms inherited these cases while the larger firms were dealing with credit-crisis cases for higher damages. All of this combined to allow smaller firms to expand the cases they initiate beyond "lawsuit blueprint cases," leading to the current landscape, which "now clearly consists of a combination of two different types of cases: smaller cases brought by a set of smaller plaintiffs' firms on behalf of retail investors, and largest cases pursued by the larger plaintiffs' firms on behalf of retail investors" (the larger cases may also benefit institutional investors). In other words, the plaintiffs' bar is now relatively small, but it is experienced and centralized when compared to the defense bar.[1] In part II, Mr. Greene discusses the splintering of the defense bar. Unlike the relatively small plaintiffs' bar, the defense bar is enormous. "Every firm in the AmLaw 200 has a securities class action defense group and conceivably could be hired to defend a securities class action." However, these firms generally do not specialize and do not consist of attorneys who work exclusively on securities litigation. Mr. Greene estimates that the number of actual securities litigation senior partners on the defense bar is about 10% of the "so-called securities defense bar." Thus, because the defense bar is busy with non- securities matters, "the average defense lawyer handles far fewer -- and a narrower range of -- cases than the average plaintiffs' lawyer." The problem, according to Mr. Greene, is that this structure results in sub-optimal defense, which is compounded by the rising rates of litigation defense. This results in the possibility that a company's D&O insurance program will be unable to cover the fees, which Mr. Greene feels may be "the biggest risk directors and officers face from securities litigation." Mr. Greene of course adds that the defense bar wins a lot of dismissals at the pleading stage. However, this is tempered by the fact that those victories usually result in a dismissal without prejudice, allowing the plaintiff to replead. Mr. Greene posits that, given "skyrocketing" defense costs, most cases settle at this stage to avoid the danger that their D&O insurance policy would be unable to cover the fees of a strong defense and later settlement. This means that "motions to dismiss are the whole ballgame these days," and Greene argues that they are not always being argued effectively. Mr. Greene's solution to this problem: use the D&O insurer representatives already associated with defending the litigation and give them a bigger voice in the defense process. He argues that "D&O insurers see the big picture in securities class action in a way no defense lawyer ever could, and could easily provide input that would help solve these problems." Mr. Greene expands on this and other solutions in part III, in which he discusses the reasons why his proposal should be considered. He lists several possible paths forward, outlining the pros and cons of each option. First, Greene discusses proposals to eliminate or otherwise reforming securities class actions. He states that this would be "an enormous error," given that eliminating securities class actions would allow plaintiffs to file non-class securities actions that would be far less manageable for defendants than class action lawsuits. Second, he mentions the possibility of forming industry groups (like the accounting profession) to oversee securities class actions. He posits that public companies probably could not adopt this approach, since the types of companies sued in securities class actions have far more numerous and diverse issues than the accounting firms. Finally, Mr. Greene turns to the possibility of giving D&O insurers greater control, which he states is "the only clear path." He argues that D&O insurers are "the only repeat players on the defense side," and that they have the greatest economic interest in the outcome. Mr. Greene also argues that these insurers have the experience and the motivation to work for an advantageous outcome for class action defendants at the lowest possible price. While the defense bar is filled with talented and hardworking attorneys, it is true that they do not always experience the sheer volume of specialized cases that the plaintiffs' bar does. That is why it is important that the defense attorney involved in the case actually has extensive experience with the types of issues involved in the case. In contrast, by creating new theories in novel areas, plaintiffs' attorneys are gaining knowledge of the issues involving new areas more quickly. Giving a greater role to D&O insurers could help fill that experience gap. As Mr. Greene correctly points out, they have a vested interest in obtaining a positive outcome for defendants. Of course, this is not to suggest that defense attorneys do not have the same interest; they clearly do. Mr. Greene's point is simply that D&O insurers should be given a greater seat at the table in order to ensure the best possible defense and result for defendants in securities class actions. [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, Jessenius Pulido, Noemi Irene A. Adala, Rousel Elaine T. Fernandez, Joy A. Agravante, Psyche Maricon Castillon-Lopez, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2018. All rights reserved. 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