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/raid1/www/Hosts/bankrupt/CAR_Public/131031.mbx C L A S S A C T I O N R E P O R T E R Thursday, October 31, 2013, Vol. 15, No. 216 Headlines ADOBE SYSTEMS: Judge Certifies Class in "No-Poach" Suit AGROPUR DISTRIBUTION: Recalls Quebon Milk from Montreal Plant AMERICAN EQUITY: Reaches Prelim. Class Action Settlement Agreement ANHEUSER-BUSCH COS: Sued by Beck's Beer Consumers in Florida ATP OIL: "Stackhouse" Suit Transferred From Texas to Louisiana BANK OF AMERICA: Subprime Loan Suit Ruling May Spur Class Actions BIOSCRIP INC: Pomerantz Law Firm Files Class Action in New York BP PLC: Attorneys Linked to Settlement Payout Fraud Fight Back BRANCH BANKING: Judge Denies Motion to Dismiss ADA Class Action CANADIAN NATURAL: Recalls Mrs. Crimble's Macaroons Due to Allergen CLIC INTERNATIONAL: Recalls Flavored Marshmallow Due to Allergen COACH AMERICA: P/E Firm Ducks Bus Driver's Employment Suit DGSE COMPANIES: Class Action Settlement Gets Final Court Approval FAMILY DOLLAR: Ruling Highlights Lower-Court Rejection Trend FERRARINI USA: Recalls 15,118 Pounds of Salami Products FRITO-LAY: Judge Trims Class Action Over Nutrition Label GARDEN FRESH: Recalls Ready-to-Eat Chicken and Ham Products GOOGLE INC: Judge Okays Settlement in Shareholder Stock Split Suit HI-TECH PHARMACAL: Settles Misleading Advertising Class Action HOMEOLAB USA: Sued Over Misleading Marketing of Kids Relief Brand ITFC IMPORTERS: Recalls Aslan Chocolate Golbon Hazelnut JPMORGAN CHASE: Settles Residential MBS Suit for $5.1 Billion JUSTICE COMMISSIONED: Failed to Pay Overtime Wages, Suit Claims KAISER PERMANENTE: Faces Class Action Over Mental Health Care LOBLAW COMPANIES: Recalls Seaquest Frozen Bay Scallops LONE STAR WHEEL: Fails to Pay OT; Tells Employees to Use Aliases LOREAL USA: Models File Class Action Over Image Use in Ads LORILLARD TOBACCO: Florida Jury Awards $3.5MM Mesothelioma Damages LUMINA HEALTH: New Jersey Judge Refuses to Remand Class Action MCCABE ASSOCIATES: Faces Class Suit Over 2013 PGA Championship MERCK & CO: Incretin Products MDL Moves Forward in California MONDELEZ INT'L: Plaintiff Appealed Dismissal of "Manchouck" Suit NATROL INC: Health Benefit Claims Are False, Suit Says NOVO NORDISK: Recalls NovoMix30 FlexPen & Penfill Treatments NVIDIA CORP: Court Approves Class Action Settlement Over GPUs OKLAHOMA: Foster Home Recruitment Data Inaccurate, Experts Say PERDUE FARMS: Faces Second Class Action Over "Humane" Claims RESER'S FINE: Recalls Salad Products Over Listeria Risk RESER'S FINE: Recalls Additional Chicken, Ham and Beef Products RESER'S FINE FOODS: Expands Recall of Ready-to-Eat Foods RHYTHM & HUES: Gets Nod for $1 Million Workers Deal SSM HEALTH CARE: Judge Approves $3.5MM Class Action Settlement STONEBRIDGE LIFE: Faces Setback in Fight Against TCPA Class Action STRATASYS INC: Settles Stockholder Suit STRATEGIC REALTY: Faces Securities Class Action Over IPO TAYLOR FARMS: Recalls Broccoli Salad Kits THOMAS JEFFERSON SCHOOL: Judge Denies Class Certification TOYOTA MOTOR: Settles Sudden-Acceleration Case for $3 Million VECTOR GROUP: Enters Into Settlement on Engle Tobacco Litigation VERGER BELLIVEAU: Recalls Sweet Apple Cider Products * FDA Asks Pet Owners, Vets to Send Jerky Treat Samples, Info ********* ADOBE SYSTEMS: Judge Certifies Class in "No-Poach" Suit ------------------------------------------------------- Max Taves, writing for The Recorder, reports that in one of Silicon Valley's most closely watched cases, a federal judge on Oct. 24 certified a class of more than 60,000 skilled workers who accuse Adobe Systems Inc., Apple Inc., Google Inc. and Intel Corp. of illegally suppressing their pay through a conspiracy not to compete for each other's employees. "This court could not identify a case at the class certification stage with the level of documentary evidence plaintiffs have presented," wrote U.S. District Judge Lucy Koh of the Northern District of California. Her 86-page order is a victory for plaintiffs and their attorneys at Lieff Cabraser Heimann & Bernstein and the Joseph Saveri Law Firm, who have alleged an "overarching conspiracy" between 2005 and 2009 limiting competition for employees among the Valley's largest companies. "It's a significant milestone in our prosecution," Joseph Saveri said on Oct. 25, adding, "I think it's fair to say that everything we have said in our complaint we've been able to validate." Robert Van Nest -- rvannest@kvn.com -- who argued the motion for the defendants, declined to comment. Lieff Cabraser's Kelly Dermody and Mr. Saveri brought the suit a year after the U.S. Department of Justice's Antitrust Division filed a complaint in 2010 against the same four defendants as well as Intuit Inc., Lucasfilm and Pixar. The seven corporations settled the government suit without admitting wrongdoing but agreed to end coordination of their recruitment and hiring policies. Last month, Intuit, Lucasfilm and Pixar agreed to pay a combined $20 million to settle the civil antitrust claims. According to the plaintiffs' court filings, the four remaining corporate defendants employed about 92 percent of the class, with Intel workers representing the largest portion of the class. Plaintiffs' recent victory also marks a reversal of fortune for plaintiffs. In April, Judge Koh rejected their first push for certification, pointing to a lack of evidence that the so-called no poach pacts hurt salaries across a broad swath of employees, but she gave plaintiffs a chance to amend their motion using a trove of deposition testimony and internal company communications. Plaintiffs trimmed their class from about 100,000 employees to approximately 60,000, focusing on the most highly skilled workers -- the so-called technical class, consisting of employees from computer programmers and engineers to digital and graphic artists. At an August hearing on certification, Judge Koh said that the evidence in the case was stronger. Still, she seemed at least partially persuaded by arguments made by Google attorney Van Nest of Keker & Van Nest, who emphasized a wide variation in pay across the companies -- a fact, he argued, that showed signs of healthy competition for workers rather than the rigid pay structure plaintiffs had alleged. Ultimately, Judge Koh found the new evidence convincing, citing in her order declarations and depositions of executives and emails exchanged among the heads of those companies. The order makes several references to the role played by deceased Apple founder Steve Jobs, who emerges from her order as an aggressive enforcer, if not ringleader, of the conspiracy to suppress employee wages. Testimony that she cites depicts Mr. Jobs as "very adamant about protecting his employee force" from other defendants. In fact, according to a declaration by Edward Colligan, former president and CEO of Palm Inc., Mr. Jobs threatened Mr. Colligan that if he did not agree to the pact, "Palm could face lawsuits alleging infringement of Apple's many patents." Mr. Colligan refused, and Palm was not part of the alleged conspiracy. Referencing that declaration and similar allegations, Judge Koh wrote, "Plaintiffs' evidence suggests not only that the antisolicitation agreements eliminated a key tool of recruitment, cold calling, but also that the impact of this elimination affected the entire technical class." Judge Koh's order also emphasizes the class' satisfaction of new requirements imposed by recent U.S. Supreme Court cases, including Walmart v. Dukes, Comcast v. Behrend and Amgen v. Connecticut Retirement Plans. Kelly Dermody, a partner leading the case for Lieff Cabraser, called Judge Koh's review of those precedents "comprehensive and careful." "She needed to see evidence that we weren't just making inferences" about common harms across the class, said Ms. Dermody. Cohen Milstein partner Joseph Sellers -- jsellers@cohenmilstein.com -- who represented plaintiffs in Dukes, said he thought Judge Koh's order was "a fair interpretation of the legacy of the Walmart and Comcast decisions. I think she's wisely making reference to the Supreme Court's authority. And that this case found that those requirements were satisfied." Referencing Dukes and Comcast in light of Judge Koh's order granting certification, Sellers added, "They clearly do not spell the end of class actions, as some have predicted." AGROPUR DISTRIBUTION: Recalls Quebon Milk from Montreal Plant ------------------------------------------------------------- Starting date: October 25, 2013 Type of communication: Recall Alert sub-type: Notification Subcategory: Other Hazard classification: Class 3 Source of recall: Canadian Food Inspection Agency Recalling firm: Agropur Distribution: Quebec Extent of the product distribution: Retail Affected products: -- Quebon White Milk Carton formats: 150 ml, 200 ml, 473 ml, 1 litre, 2 litres and Bags formats: 4 litres, 10 litres, 20 litres, Products Skim, 1%, 2%, 3.25%; -- Quebon Chocolate Milk Carton formats: 200 ml, 473 ml, Products: Chocolate Milk; and -- Quebon White and Chocolate Milk Plastic formats: 473 ml, 2 litres Products: Skim, 1%, 2%, 3.25% Agropur cooperative advises consumers not to consume the Quebon brand white and chocolate milks produced at the Montreal plant (AGRT 2889) in all indicated formats, with the November 1st, 2nd and 3rd, 2013 expiry dates. These products do not meet Agropur's quality standards. Although complaints have been filed and products have been consumed for a few days, there have been no reported illnesses associated with the consumption of these products. Agropur asks consumers to return the products to their retailer for an exchange or refund. Consumers can also call the Agropur, Division Natrel, consumer help line at: 1-800-501-1150, www.quebon.ca. Agropur is sorry for the trouble and inconvenience this may cause. AMERICAN EQUITY: Reaches Prelim. Class Action Settlement Agreement ------------------------------------------------------------------ Maria Wood, writing for Life Health PRO, reports that a preliminary agreement has been reached in a class action lawsuit against American Equity Investment Life Insurance Co. involving the sale of deferred annuities to seniors. According to a statement from the Evans Law Firm, one of the law firms that represented the plaintiffs, the preliminary agreement was handed down last month in the U.S. District Court, Central District of California, Western Division. It involved two class actions suits brought against American Equity Investment Life Insurance Co. for alleged deceptive sales practices in regards to the sale of deferred annuity products to senior citizens. The suit contended that the products were marketed to seniors without disclosing all the costs and risks associated with the annuities. The case involved two separate class actions that were eventually combined into one. There is a California-only class that covered California residents at least 60 years old who purchased an American Equity deferred annuity between Jan. 3, 2000 and June 30, 2011. The second is a nationwide class consisting of non-California residents who purchased the product between Jan.3, 2000 and Dec. 31, 2009. Those plaintiffs were at least 65 years old at the time of purchase. All told, the proposed settlement encompasses more than 110,000 seniors, according to the Evans Law Firm. Ingrid Evans of the Evans Law Firm said the maximum payout by American Equity could reach $40 million. Other proposed settlement benefits may include: An annuitization bonus up to 10.75 percent of the annuity's accumulation value on the date of annuitization; a 1.75 percent enhancement of annuity payments to previously annuitized policies; up to a 67.5 percent refund of previously incurred surrender charges; or up to a 67.5 percent reduction of surrender charges incurred in the future. Executives from American Equity declined to give an official statement on the case. However, in the court document, the company denied any wrongdoing and said the settlement was agreed to in order not disrupt its ongoing business operations and to conclude a lengthy litigation. A final settlement is scheduled to be reached by late January, according to Elliot Wong, an attorney with the Evans Law Firm. ANHEUSER-BUSCH COS: Sued by Beck's Beer Consumers in Florida ------------------------------------------------------------ Francisco Rene Marty, on behalf of himself and all others similarly situated v. Anheuser-Busch Companies, LLC, Case No. 1:13-cv-23656-JAL (S.D. Fla., October 9, 2013) is brought on behalf of consumers of Beck's beer, who have allegedly been deceived that Beck's, a historically German beer, is manufactured in and imported from Germany. The Company, a subsidiary of Anheuser-Busch InBev SA/NV, is a Delaware limited liability company headquartered in St. Louis, Missouri. AB InBev is the world's largest producer of alcoholic beverages. The Plaintiff is represented by: Thomas A. Tucker Ronzetti, Esq. Adam M. Moskowitz, Esq. David R. Matz, Esq. KOZYAK TROPIN & THROCKMORTON 2525 Ponce de Leon Boulevard, Suite 900 Coral Gables, FL 33134-6036 Telephone: (305) 372-1800 Facsimile: (305) 372-3508 E-mail: TR@kttlaw.com AMM@kttlaw.com drm@kttlaw.com - and - Howard Mitchell Bushman, Esq. Lance August Harke, Esq. Allison Harke, Esq. HARKE CLASBY & BUSHMAN LLP 9699 NE Second Avenue Miami Shores, FL 33138 Telephone: (305) 536-8220 Facsimile: (305) 536-8229 E-mail: hbushman@harkeclasby.com lharke@harkeclasby.com aharke@harkeclasby.com - and - Robert W. Rodriguez, Esq. ROBERT W. RODRIGUEZ, P.A. 66 West Flagler Street, Suite 1002 Miami, FL 33130 Telephone: (305) 444-1446 Facsimile: (305) 907-5244 E-mail: RobertWRodriguez@gmail.com ATP OIL: "Stackhouse" Suit Transferred From Texas to Louisiana -------------------------------------------------------------- The class action lawsuit captioned Stackhouse v. Bulmahn, et al., Case No. 4:13-cv-2557 (S.D. Tex., August 30, 2013) was transferred to the U.S. District Court for the Eastern District of Louisiana (New Orleans) on October 9, 2013. The case is now captioned Stackhouse v. Bulmahn, et al., Case No. is 2:13-cv-06084 (E.D. La. Oct 09, 2013). The case is a federal securities class action brought on behalf of purchasers of the common stock of ATP Oil & Gas Corporation during the period from December 16, 2010, through the Company's bankruptcy filing on August 17, 2012. ATP Oil was not named as defendant. Following the explosion of the Deepwater Horizon in April 2010, the U.S. Department of the Interior issued two moratoria that essentially halted all drilling in water depths greater than 500 feet in the Gulf of Mexico, which also halted all or most of the Company's operations in the Gulf of Mexico. As a result of the alleged false and misleading misstatements and omissions by the Company relating to the Deepwater Horizon incident, the price of the Company's stock fell from $15.36 at the beginning of the Class Period to $0.30 at the time of the bankruptcy filing. The Defendants are directors and officers of the Company. The Plaintiff is represented by: Sammy Ford IV, Esq. ABRAHAM, WATKINS, NICHOLS, SORRELS, AGOSTO & FRIEND 800 Commerce Street Houston, TX 77002 Telephone: (713) 222-7211 Facsimile: (713) 225-0827 - and - Jeremy A. Lieberman, Esq. Lesley F. Portnoy, Esq. POMERANTZ GROSSMAN HUFFORD DAHLSTROM & GROSS LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (212) 661-8665 E-mail: jalieberman@pomlaw.com lfportnoy@pomlaw.com - and - POMERANTZ GROSSMAN HUFFORD DAHLSTROM & GROSS LLP Patrick V. Dahlstrom, Esq. 10 South La Salle Street, Suite 3505 Chicago, IL 60603 Telephone: (312) 377-1181 Facsimile: (312) 377-1184 E-mail: pdahlstrom@pomlaw.com The Defendants are represented by: Paul R. Bessette KING & SPALDING, LLP (AUSTIN) 401 Congress Avenue, Suite 3200 Austin, TX 78701 Telephone: (512) 457-2100 E-mail: pbessette@kslaw.com BANK OF AMERICA: Subprime Loan Suit Ruling May Spur Class Actions ----------------------------------------------------------------- Investor's Business Daily reports that the nation's largest bank has assured shareholders its mortgage liability is winding down. But it's just getting started, thanks to the feds' big trial win against it in New York. A jury on Oct. 23 agreed with the Justice Department that Bank of America defrauded government-chartered Fannie Mae and Freddie Mac when its Countrywide unit sold the mortgage giants subprime loans in the run-up to the financial crisis. Prosecutors have asked BofA to pay a nearly $1 billion fine. It's a major victory for Attorney General Eric Holder and his war on banks. In fact, the war has turned into a rout. The verdict will more than likely trigger an avalanche of class-action suits that could cost BofA and other major banks many billions in settlement payoffs. It opens the entire banking industry up to parasites. Unions, state pensions, community organizers and trial lawyers will all be bleeding the industry for years. BoA's acquisition of Countrywide has proved costly. It paid $4 billion for Countrywide, but it faces $50 billion in fines and settlements due to liabilities related to the subprime lender, and that figure will only grow larger. That's because the government has set up the subprime lender as the patsy for the crisis the government caused. It this case, it claims Countrywide misled bankrupt Fannie and Freddie, now in federal conservatorship, about the quality of the home loans sold to them. Prosecutors cite a program Countrywide used to churn out subprime loans, gleefully reported in the media as "the hustle." Sounds bad, but "hustle" merely stands for the program's initials, HSSL. Unreported is that Countrywide started the high-speed program to meet Fannie's demand for subprime loans. It began in 1995, when Fannie courted Countrywide to secure a steady supply of subprime loans to meet its ever-rising Affordable Housing Goals from HUD. If there was a subprime crime, they were partners in it. Fannie even discounted fees it charged to guarantee Countrywide loans sold to investors. In exchange, Countrywide sold huge volumes of subprime and other nonprime mortgages to Fannie. Countrywide soon became the biggest single seller of such loans to Fannie. One of the products Countrywide designed for Fannie was the Fast- N-Easy loan, which fit into Fannie's "Expanded Approval" portfolio. It was plainly subprime, designed for folks with low income and lousy credit, and everyone knew it, most of all Fannie and its regulators at HUD, which actually encouraged Fannie to dive deeper into the subprime market. In 2000, HUD demanded it blur the line between subprime and prime to erase the "stigma" of subprime. Countrywide didn't mislead or victimize Fannie. Countrywide was a Fannie clone and, in effect, a federal subcontractor. Countrywide actually signed subprime loan volume contracts with HUD. Separate 2011 lawsuits filed against Fannie and Freddie by the SEC allege it was Fannie and Freddie that defrauded Wall Street by selling subprime loans and securities disguised as prime. The government-chartered mortgage giants would report one thing to investors on Wall Street and another to their affordable-housing mission regulators in Washington. The fraud was a function of their dual mission. "We see it as part of our mission and our charter to make safe mortgages available to people who don't have perfect credit," Fannie's CEO testified in 2007. "We continued our careful entry into the subprime market, by and large supporting lenders, products and practices that met our standards, and which helped us meet our HUD affordable housing requirements." Those lenders included Countrywide. Those products included mainly Fast-N-Easy, which met the low standards Fannie set for the industry, as HUD ordered. That makes the government a co-conspirator in the subprime mortgage fraud. Yet it gets to prosecute and, in the case of BofA/Countrywide, convict private-sector partners to absolve itself and its social lending arms, Fannie and Freddie, of culpability in the worst financial scandal in U.S. history. BIOSCRIP INC: Pomerantz Law Firm Files Class Action in New York --------------------------------------------------------------- Pomerantz Grossman Hufford Dahlstrom & Gross LLP on Oct. 25 disclosed that it has filed a class action lawsuit against BioScrip, Inc. and certain of its officers. The class action, filed in United States District Court, Southern District of New York, and docketed under 13-cv-6922, is on behalf of a class consisting of all persons or entities who purchased or otherwise acquired securities of BioScrip between August 8, 2011 and September 20, 2013 both dates inclusive. This class action seeks to recover damages against the Company and certain of its officers and directors as a result of alleged violations of the federal securities laws pursuant to Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. If you are a shareholder who purchased BioScrip securities during the Class Period, you have until November 29, 2013 to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at http://www.pomerantzlaw.com To discuss this action, contact Robert S. Willoughby at rswilloughby@pomlaw.com or 888-476-6529 (or 888-4-POMLAW), toll free, x237. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and number of shares purchased. BioScrip is a pharmacy benefit management and specialty pharmaceutical organization that partners with managed care organizations and healthcare providers to control prescription drug costs. The Company provides pharmacy benefit products and services and mail order pharmacy services, and is the fulfillment center for online retailers offering prescription and OTC products. The Complaint alleges that throughout the Class Period, Defendants made false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (1) the Company improperly distributed the product Exjade through its specialty pharmacy operations; (2) the Company was in violation of certain federal and state laws and regulations; and (3) as a result of the foregoing, the Company's statements were materially false and misleading at all relevant times. On September 23, 2013, the Company announced in a Form 8-K, that it received a civil investigative demand issued by the United States Attorney's Office for the Southern District of New York and a subpoena from the New York State Attorney General's Medicaid Fraud Control Unit, regarding the distribution of the Novartis Pharmaceuticals Corporation product Exjade by the Company's legacy specialty pharmacy division. On this news, BioScrip securities declined $2.60 per share or 23% within two trading sessions, to close at $8.47 per share on September 24, 2013. The Pomerantz Firm, with offices in New York, Chicago, Florida, and San Diego, -- http://www.pomerantzlaw.com-- concentrates its practice in the areas of corporate, securities, and antitrust class litigation. BP PLC: Attorneys Linked to Settlement Payout Fraud Fight Back -------------------------------------------------------------- Amanda Bronstad, writing for The National Law Journal, reports that four attorneys targeted for potential fraud in the dispersal of BP PLC's $9.6 billion Deepwater Horizon oil spill settlement are fighting back, filing lawsuits, challenging court orders and alleging a conflict of interest. Former FBI director Louis Freeh, appointed by U.S. District Judge Carl Barbier as special master to investigate potential corruption in the settlement's claims process, in a September 6 report alleged improprieties in the claims process and referred four lawyers to federal authorities. Judge Barbier has ordered the attorneys to respond by November 15. All four allege that they have been denied materials that could exonerate them. U.S. Magistrate Judge Sally Shushan granted access to some of those materials on Oct. 24. One of the attorneys, Christine Reitano, has moved to dismiss Judge Barbier's order against her. "There's just no basis for the court to order her to come in and prove something," said Ms. Reitano's attorney, Mary Olive Pierson, a solo practitioner in Baton Rouge, La. Ms. Reitano, who was fired as senior attorney for claims administrator Patrick Juneau, also sued her former boss and BP on Oct. 21 in Orleans Parish, La., Civil District Court, seeking unspecified damages for defamation and breach of contract. Another attorney, Jonathan Andry, claims that Mr. Freeh, chairman of Pepper Hamilton's executive committee, has a conflict of interest with BP's law firm, Kirkland & Ellis. He is seeking documents related to that potential conflict to establish whether Freeh should be disqualified as special master in the BP case. "All these things should have been very detailed and set out precisely so that everyone involved could make a fair decision," said Mr. Andry's attorney, Lewis Unglesby -- lisa@unglesbylaw.com -- of Unglesby Law Firm in Baton Rouge. On Oct. 22, Mr. Freeh filed a response saying that he previously had disclosed six matters in which Pepper Hamilton "is adverse to BP." In his report, Mr. Freeh concluded that Mr. Reitano and her husband, Lionel "Tiger" Sutton, also a former senior attorney for Mr. Juneau, accepted fees for a client that they referred to The Andry Law Firm in New Orleans. Mr. Andry, part owner of The Andry Law Firm, and Glen Lerner, the fourth attorney, are principals of Andry Lerner in New Orleans. BRANCH BANKING: Judge Denies Motion to Dismiss ADA Class Action --------------------------------------------------------------- Arthur G. Boylan, Esq., and Katherine E. Devlaminck, Esq. at Leonard, Street and Deinard report that more than 100 nearly identical class action lawsuits alleging noncompliance with Americans with Disability Act accessibility standards for ATM machines have been filed against banks and credit unions since new standards went into effect in March 2012. The ADA requires ATMs to have certain accessibility features allowing visually impaired individuals to use the machines independently and with privacy. A recent decision demonstrates that these lawsuits may not be easy to dismiss. On October 16, a federal judge in Georgia denied a motion to dismiss a class action lawsuit alleging that the defendant bank failed to meet ADA standards for making its ATM machines accessible to the plaintiff and other visually impaired consumers. Thomas v. Branch Banking and Trust Co., No. 13-CV- 00656 (N.D. Ga. Oct. 16, 2013). The defendant made a facial (as opposed to factual) attack on the plaintiff's standing and argued that the plaintiff failed to allege a real and immediate threat of future injury. The Georgia court held that the plaintiff sufficiently alleged individual standing by pleading that she lives in close proximity to the allegedly noncompliant ATMs, used the ATMs in the past, plans to return to the ATMs in the future and frequently travels in the area where the ATMs are located. The court indicated that class standing issues would not be addressed until later in the litigation. The ADA requires financial institutions and other businesses housing ATM machines to ensure that at least one ATM in each location offers voice guidance, Braille instructions, keys with tactile buttons and other features for the visually impaired. The complete ADA Standards for Accessible Design are available here. Failure to comply with the ADA standards for ATMs can be costly for defendants. The Department of Justice may impose civil penalties up to $55,000 for a first violation and $110,000 for subsequent violations. Individual plaintiffs can recover injunctive relief, compensatory damages and attorney's fees. CANADIAN NATURAL: Recalls Mrs. Crimble's Macaroons Due to Allergen ------------------------------------------------------------------ Starting date: October 24, 2013 Type of communication: Recall Alert sub-type: Allergy Alert Subcategory: Allergen - Milk Hazard classification: Class 3 Source of recall: Canadian Food Inspection Agency Recalling firm: Canadian Natural & Specialty Brands Distribution: National Extent of the product distribution: Retail CFIA reference number: 8383 Affected products: -- 220 g. Mrs. Crimble's Macaroons with Chocolate Flavoured Coating with All codes where milk is not properly declared on the label. and UPC 6 26222 00012 5; and -- 70 g. Mrs. Crimble's Giant Chocolate Macaroon - Macaroon with Chocolate Flavoured Coating with All codes where milk is not properly declared on the label and UPC 5 010822 990682 CLIC INTERNATIONAL: Recalls Flavored Marshmallow Due to Allergen ---------------------------------------------------------------- Starting date: October 26, 2013 Type of communication: Recall Alert sub-type: Allergy Alert Subcategory: Allergen - Milk Hazard classification: Class 1 Source of recall: Canadian Food Inspection Agency Recalling firm: Clic International Inc. Distribution: National Extent of the product distribution: Retail CFIA reference number: 8423 Affected product: 250 g. Clic Strawberry Flavored Marshmallow with Best Before Date 17/01/2014 The Canadian Food Inspection Agency (CFIA) and Clic International Inc. are warning people with allergies to milk not to consume certain Clic brand Strawberry Flavored Marshmallow. The affected product may contain milk which is not declared on the label. Pictures of the recalled products are available at: http://is.gd/mY3HKK There has been one reported illness associated with the consumption of this product. Consumption of this product may cause a serious or life- threatening reaction in persons with allergies to milk. The importer, Clic International Inc., Montreal, Quebec, is voluntarily recalling the affected product from the marketplace. The CFIA is monitoring the effectiveness of the recall. COACH AMERICA: P/E Firm Ducks Bus Driver's Employment Suit ---------------------------------------------------------- Law360 reported that a Delaware bankruptcy judge on Oct. 23 tossed a putative class action against Fenway Partners LLC, finding claims brought on behalf of bus drivers once employed by bankrupt Coach America Inc. had no plausible connection to the private equity firm. According to the report, U.S. Bankruptcy Judge Kevin Gross dismissed the suit, which was filed as an adversary proceeding in Coach America's Chapter 11 case, finding its claims of alleged employment law violations lacked any viable connection to Fenway Partners. DGSE COMPANIES: Class Action Settlement Gets Final Court Approval ----------------------------------------------------------------- DGSE Companies, Inc., a wholesaler and retailer of jewelry, diamonds, fine watches, and precious metal bullion and rare coin products, on Oct. 24 disclosed that the United States District Court for the Northern District of Texas has granted final approval of the previously announced proposed settlement of class action and derivative litigation relating to the Company's previously disclosed accounting irregularities and subsequent restatement of financial results. The approved settlements resolve all issues which were pending before the United States District Court for the Northern District of Texas, in the two filed cases entitled Grant Barfuss, on behalf of himself and all others similarly situated vs. DGSE Companies, Inc.; L. S. Smith, John Benson and William Oyster (Civil Action No. 3:12-cv-3664), and Jason Farmer, Derivatively on Behalf of Nominal Defendant DGSE Companies, Inc., Plaintiff, v. William H. Oyster, James D. Clem, William Cordeiro, Craig Alan-Lee, David Rector, L. S. Smith, and John Benson, Defendants, and DGSE Companies, Inc., Nominal Defendant (Civil Action No. 3:12-cv- 3850). As previously disclosed, the defendants have agreed to pay $2 million to resolve all claims in both suits (including obligations to pay plaintiffs' attorneys' fees). The Company has also incurred its own attorneys' fees and expenses associated with finalizing the settlement. It is expected that approximately 90% of the total settlement amount and related expenses will be paid from insurance proceeds. "We are pleased to have this issue resolved and behind us," stated James Vierling, Chief Executive Officer and Chairman of the Board. "DGSE has experienced tremendous change in the last few years, and we are pleased to conclude this legacy issue from prior management enabling us to focus even more on the Company's going-forward operations. With a solid plan for sustainable, profitable growth, an experienced leadership team and strong strategic partner, we look optimistically to the future." About DGSE Companies DGSE Companies, Inc. wholesales and retails jewelry, diamonds, fine watches, and precious metal bullion and rare coin products through its Bullion Express, Charleston Gold & Diamond Exchange, Dallas Gold & Silver Exchange, and Southern Bullion Coin & Jewelry operations. DGSE also owns Fairchild International, Inc., one of the largest vintage watch wholesalers in the country. In addition to its retail facilities in Alabama, Florida, Georgia, Illinois, South Carolina, Tennessee and Texas, the Company operates Internet websites which can be accessed at www.bullionexpress.com, www.dgse.com, www.cgdeinc.com, and www.sbcoin.com. Real-time price quotations and real-time order execution in precious metals are provided on another DGSE website at www.USBullionExchange.com. Wholesale customers can access the full vintage watch inventory through the restricted site at www.FairchildWatches.com. The Company is headquartered in Dallas, Texas and its common stock trades on the NYSE MKT exchange under the symbol "DGSE." FAMILY DOLLAR: Ruling Highlights Lower-Court Rejection Trend ------------------------------------------------------------ The Wall Street Journal reports that elections have judicial consequences, and nowhere is that more evident than on the Fourth Circuit Court of Appeals, which brushed off a Supreme Court class- action ruling like a lapful of cracker crumbs. The case has damaging consequences for business and highlights a growing trend of lower-court rejection of High Court precedents. In Scott v. Family Dollar Stores, 51 current or former managers allege that the low-cost retail chain uses "subjectivity and gender stereotyping that causes disparate impact to compensation paid to female store managers." A Fourth Circuit panel by 2 to 1 overturned a lower court ruling and granted class certification despite clear rules set down in 2011 by the Supreme Court in Wal-Mart v. Dukes. Class certification typically means a big payday for lawyers because companies quickly settle rather than endure the costs of a trial with huge potential damages. The Family Dollar plaintiffs hang their case on varied judgments by a wide range of middle managers across the country, the kind of group that Wal-Mart made clear makes a class certification impermissible. As Judge J. Harvie Wilkinson writes in a dissent that blisters his colleagues for ignoring precedent, "in the majority's view, middle managers at Family Dollar are purely robotic with respect to those they supervise, but no American company operates in such a way." Judge Wilkinson, who was one of George W. Bush's finalists for the High Court, adds that "the fact that a company sets pay ranges or values prior experience or performance as factors in compensation is not sinister." And: "If centralized delegations of discretion such as these are enough for a nationwide class action to get rolling, then few companies will be exempt." The majority's logic, he concludes, "has drained" the Wal-Mart ruling "of meaning." This latest ruling continues a troubling trend of lower appellate courts ignoring Supreme Court precedents, perhaps on the assumption that the Justices can't take every case. Think of it as a war of attrition against lover-not-a-fighter Chief Justice John Roberts. Similar behavior was in evidence recently in the Sixth Circuit's Whirlpool v. Glazer and the Seventh Circuit's Sears v. Butler over whether to certify class actions among consumers with allegedly moldy washing machines. In Sears, Judge Richard Posner clearly disregarded the Supreme Court's certification guidelines. The High Court vacated those judgments and remanded them in light of their ruling in 2013's Comcast v. Behrend, but the lower courts simply reinstated their prior decisions. Both cases are now bidding for another High Court hearing. The Family Dollar majority was made up of Obama appointee Barbara Keenan and Clinton recess-appointee Roger Gregory, who was later renominated by George W. Bush as an olive branch to Senate Democrats. Democratic Presidents have appointed 10 of the 15 active Fourth Circuit judges, including six by President Obama. Consider this disdain for precedent a preview if Mr. Obama gets a new majority on the Supreme Court. Chief Justice Roberts and his colleagues need to deliver some remedial instruction in class- action law and legal hierarchy. FERRARINI USA: Recalls 15,118 Pounds of Salami Products ------------------------------------------------------- Ferrarini USA, Importer of Record in San Fernando, Calif., is recalling approximately 15,118 pounds of salami products that were not presented for import reinspection, the U.S. Department of Agriculture's Food Safety and Inspection Service (FSIS) announced. Import reinspection by FSIS is required before an imported product is eligible to enter commerce. The products subject to recall include: -- 7.7 lbs. Salame Emilia Ferrarini Log with Boxes of 5 logs weighing each and Package Code of 60516 3222 3208; -- 7.7 lbs. Salame Parma Ferrarini Log with Boxes of 5 logs weighing each. and Package Code of 60518 3224 3295; -- 7.7 lbs. Salame Parma Ferrarini Log with Boxes of 4 logs weighing each. and Package Code of 60518 2685 2686; and -- 250 g. Ferrarini Salame Parma with Boxes of 20 chubs weighing each and Package Code of 61082 3320 3320 Each box bears the code "IT G4279 CE" inside the Italian mark of inspection, though individual logs may not. The products were shipped to distributors in Arizona and California for further distribution to retailers. FSIS import inspection staff and the import house discovered the problem when the shipment was not presented for reinspection as scheduled. FSIS and the company have not received reports of illnesses due to consumption of these products. Anyone concerned about an illness should contact a healthcare provider. FSIS routinely conducts recall effectiveness checks to verify recalling firms notify their customers of the recall and that steps are taken to make certain that the product is no longer available to consumers. Consumers and media with questions about the recall should contact Grant Linebach at (818) 256-1622. Consumers with food safety questions can "Ask Karen," the FSIS virtual representative available 24 hours a day at AskKaren.gov or via smartphone at m.askkaren.gov. "Ask Karen" live chat services are available Monday through Friday from 10 a.m. to 4 p.m. ET. The toll-free USDA Meat and Poultry Hotline 1-888-MPHotline (1-888-674-6854) is available in English and Spanish and can be reached from l0 a.m. to 4 p.m. ET Monday through Friday. Recorded food safety messages are available 24 hours a day. To report a problem with a meat, poultry or processed egg product to FSIS at any time, visit: http://www.fsis.usda.gov/reportproblem FRITO-LAY: Judge Trims Class Action Over Nutrition Label -------------------------------------------------------- Juan Carlos Rodriguez and Sean McLernon, writing for Law360, report that a federal judge on Oct. 24 trimmed a proposed marketing class action accusing Frito-Lay North America Inc. of misrepresenting the nutritional content of its products, finding that claims based on products the plaintiffs did not buy should be dismissed. Plaintiffs Markus Wilson and Doug Campen claim Frito-Lay is deceiving customers by making false claims about certain brands of potato chips, corn chips and other snacks, including assertions that they are "all natural." The company contends that there is nothing illegal about the labels because they merely state that natural items such as potatoes and vegetable oil are among the ingredients. U.S. District Judge Samuel Conti said the plaintiffs failed to demonstrate standing by sufficiently pleading detailed facts that the 85 nonpurchased products are "substantially similar" to the purchased products, for which they have standing. "Plaintiffs do not plead to have bought these products. Instead they simply provide long lists of products that they flatly state contain unlawful or misleading statements," Judge Conti said. "The [second amended complaint] provides no other detail about these products . . . Plaintiffs have taken lists of snack foods, appended them to paragraphs of their SAC, and asserted in their briefs -- not in their pleadings -- that they are all basically the same." The judge said he previously instructed plaintiffs to be clear about why any of the nonpurchased products were similar enough to the purchased products for standing purposes, but they failed to do so. "The court cannot just assume that every one of the nonpurchased products' labels is actionable in the same way as the more fully described purchased products' labels are," he said. The judge also dismissed the plaintiffs' claims that Frito-Lay website content constituted "labeling." "It is true that statements not actually printed on a label itself can constitute 'labeling' for [Food, Drug and Cosmetic Act] purposes. What matters is whether the separate material serves the purpose of labeling, which is to supplement or explain the product," he said. The plaintiffs alleged that by printing "Visit our website @ fritolay.com" on the back of packaging, any language on the websites constituted misleading labeling under the FDCA. But the judge said the website address is printed underneath the physical address, not near the ingredients list or any nutritional facts, and nowhere on any product's packaging does the company direct consumers to its website for more facts about the labeled product. And the judge dismissed the plaintiffs' claims under California's Unfair Competition Law to the extent that the claim relies solely on Frito-Lay's alleged violation of the Sherman Law or FDA regulations because they failed to allege reliance under this theory. "Plaintiffs' argument that they were harmed because the allegedly misbranded products were 'legally worthless and had no economic value,' is insufficient to save this claim," the judge said. "Plaintiffs' SAC supports their allegations of having been harmed by being deceived into buying products whose ingredients they specifically wanted to avoid, not that they were harmed in some nonspecific way by purchasing products that they later learned were 'legally worthless.'" The judge said the plaintiffs did, however, plausibly allege violations of the California False Advertising Law and Consumer Legal Remedies Act, and he said the UCL unlawfulness claim survives to the extent that it is predicated on violations of those laws. The plaintiffs are represented by Ben F. Pierce Gore of Pratt & Associates. Frito-Lay is represented by Andrew S. Tulumello -- atulumello@gibsondunn.com -- Geoffrey M. Sigler -- gsigler@gibsondunn.com -- and Jason R. Meltzer -- jmeltzer@gibsondunn.com -- of Gibson Dunn & Crutcher LLP. The case is Wilson, et al. v. Frito-Lay North America Inc., et al., number 3:12-cv-01586 in the U.S. District Court for the Northern District of California. GARDEN FRESH: Recalls Ready-to-Eat Chicken and Ham Products ----------------------------------------------------------- Garden Fresh Foods, a Milwaukee, WI. establishment, is recalling approximately 103,080 additional pounds of ready-to-eat chicken and ham products due to possible contamination with Listeria monocytogenes, the U.S. Department of Agriculture's Food Safety and Inspection Service (FSIS) announced. The company is recalling these products in addition to the 25,748 pounds of similar products that were recalled on Sept. 25 and Oct. 17, 2013. The products are being recalled as part of this expansion: -- 5 lb.Garden-Fresh Crunchy Poppy Seed Chicken Salad Kit with Product Code 5001; -- 5 lb. Garden-Fresh Chicken Salad with Product code 5113; -- 12 oz. Garden-Fresh Chicken Salad with Product code: 6164; -- 5 lb. Garden-Fresh All White Meat Chicken Salad with Cranberries with Product code 5114; -- 5 lb. Garden-Fresh Greek Brand Pasta with Chicken with Product code: 5116; -- 5 lb. Garden-Fresh Ham Salad with Sweet Relish with Product code: 5121; -- 12 oz. Garden-Fresh Ham Salad with Product code: 6163; -- 5 lb. Garden-Fresh Creamy Ceasar Pasta with Breast of Chicken with Product code: 5133; -- 5 lb. Garden-Fresh Premium Chicken Salad with Product code: 5167; -- 5 lb. Garden-Fresh Sandwich Spread with Product code: 5190; -- 5 lb. Garden-Fresh Reduced Fat Chicken Salad with Product code: 5305; -- 10 lb. Garden-Fresh Chipotle Chicken Wrap Filling with Product code: 5319; -- 5 lb. Grandpa's Bacon Parmesan Dip with Product code: 5904; -- 6 oz. Archer Farms Rotisserie Chicken Breast Salad with Product code: 002216; -- 16 oz. Archer Farms Rotisserie Chicken Breast Salad with Product code: 402108; -- 11 oz. Archer Farms Bacon Parmesan Dip with Product code: 69017; -- 12 oz. Market Pantry All White Meat Chicken Salad with Product code: 24103; -- 6 oz. D'Amico & Sons Farfalle with Chicken, Bacon & Sun Dried Tomato with Product code: 100219; -- 14 oz. D'Amico & Sons Farfalle with Chicken, Bacon & Sun Dried Tomato with Product code: 100226; -- 6 oz. D'Amico & Sons Ranch Pasta Salad with Chicken, Spinach & Bacon with Product code: 100233; -- 14 oz. D'Amico & Sons Ranch Pasta Salad with Chicken, Spinach & Bacon with Product code: 100240; -- 14 oz. D'Amico & Sons Chicken & Dried Cherry Pasta Salad with Product code: 101216; -- 6 oz. D'Amico & Sons Chicken & Dried Cherry Pasta Salad with Product code: 101223; -- 14 oz. D'Amico & Sons Chicken Salad with Rosemary with Product code: 101254; and -- 6 oz. D'Amico & Sons Chicken Salad with Rosemary with Product code: 101261 The products being recalled bear the establishment number "EST. 17256" or "Est. P-17256" inside the USDA mark of inspection, and were distributed to retail and food service establishments nationwide. Although product included in this recall may be expired, FSIS is concerned that some product may be frozen in consumer or retail freezers. FSIS conducted a food safety assessment at the facility following the initial recall. Microbial testing and other findings as part of the food safety assessment indicated that additional product may have been contaminated due to harborage of Listeria monocytogenes within the facility. The products included in the expanded recall were produced between Sept. 6 and Oct. 10, 2013. FSIS and the company have not received reports of illnesses due to consumption of these products. Anyone concerned about an illness should contact a healthcare provider. FSIS routinely conducts recall effectiveness checks to verify recalling firms notify their customers of the recall and that steps are taken to make certain that the product is no longer available to consumers. When available, the retail distribution list(s) will be posted on the FSIS website at: http://www.fsis.usda.gov/recalls Consumers with questions regarding the recall should contact the company at (800) 645-3367. Media with questions about the recall should contact the company's Vice President of Sales, Steve Mueller at (414) 645-1000. Consumers with food safety questions can & quot Ask Karen,& quot the FSIS virtual representative available 24 hours a day at AskKaren.gov or via smartphone at m.askkaren.gov. "Ask Karen" live chat services are available Monday through Friday from 10 a.m. to 4 p.m. ET. The toll-free USDA Meat and Poultry Hotline 1-888- MPHotline (1-888-674-6854) is available in English and Spanish and can be reached from l0 a.m. to 4 p.m. (Eastern Time) Monday through Friday. Recorded food safety messages are available 24 hours a day. The online Electronic Consumer Complaint Monitoring System can be accessed 24 hours a day at: http://www.fsis.usda.gov/reportproblem. GOOGLE INC: Judge Okays Settlement in Shareholder Stock Split Suit ------------------------------------------------------------------ Randall Chase, writing for The Associated Press, reports that a Delaware judge on Oct. 28 approved a settlement in a shareholder lawsuit challenging Google Inc.'s plans to split its stock and issue a new class of nonvoting shares. The ruling by Chancellor Leo Strine Jr. clears the way for the Internet search leader to issue shares of "Class C" nonvoting stock for each share of existing stock. The judge approved the settlement despite noting that, while it is designed to ensure that co-founders Larry Page and Sergey Brin retain control of Mountain View, Calif.-based Google, the two are not being forced to give any concessions to other shareholders. Instead, like other shareholders, Page and Brin will receive Class C shares in an amount equal to their current Class B stock holdings -- more than 24 million shares each. "There's no economic sacrifice," Mr. Strine told Jeffrey Block, an attorney representing shareholders who filed the lawsuit in April 2012. At the same time, Mr. Strine noted that Google, under the leadership of Messrs. Page and Brin, has been "a rather astonishing market success," implying that there's currently no reason to second-guess the company's governance. "Not everybody can create a verb," the judge said, referring to the evolution of the company's name from a corporate label to the description of a ubiquitous online activity. Mr. Strine also noted that there was no guarantee that the plaintiffs could have won their lawsuit, and that the settlement includes important corporate governance protections and gives more authority to independent board directors. Messrs. Page and Brin own about 15 percent of Google's outstanding stock, but they hold 56 percent of shareholder voting power because their Class B stock gives them 10 votes per share, compared to one vote per share for Class A stock. Google argued that by creating a new class of nonvoting shares, the company could continue rewarding employees with stock and finance acquisitions without undermining the voting power of Messrs. Page and Brin. But in a class-action lawsuit led by the Brockton Retirement Board in Massachusetts and another Google shareholder, Philip Skidmore, other stockholders alleged that Messrs. Page and Brin engineered the stock split in a way that would unfairly benefit the two founders while shortchanging other Google shareholders. According to court documents, the proposed stock split was the subject of internal deliberations for more than a year before it was announced in April 2012. Shareholders approved the split in June 2012; the lawsuit has prevented Google from issuing the new nonvoting shares. Under the settlement, Google must provide a price support that compensates owners of the new nonvoting stock, including Messrs. Page and Brin, if it's worth less than the existing class of stock after one year of trading. HI-TECH PHARMACAL: Settles Misleading Advertising Class Action -------------------------------------------------------------- CPT Group, Inc. on Oct. 25 disclosed that a proposed settlement has been reached in the class action lawsuit Hoover v. Hi-Tech Pharmacal Co., Inc., No. EDCV 13-00097-JGB-OP, brought on behalf of the Class, and pending in the United States District Court for the Central District of California, Eastern Division relating to Hi-Tech Pharmacal Co., Inc.'s product Nasal Ease. The lawsuit claims advertising concerning the product was misleading. The manufacturer of Nasal Ease stands by its advertising and denies it did anything wrong. The settlement Class includes all persons who purchased Nasal Ease in the United States for personal use between April 1, 2010 and February 25, 2014 "Class Period," and were domiciled or resided in the U.S. at the time of purchase. The manufacturer of Nasal Ease has agreed to pay: refunds to eligible Class Members who submit a valid claim form; Class Counsel's attorneys' fees and expenses in an amount not to exceed $250,000; and an incentive award to Plaintiff for her effort in bringing the Action in an amount not to exceed $2,500. The manufacturer has also agreed to make certain changes to the manner in which it advertises Nasal Ease. Class Members seeking to secure a settlement benefit must mail a completed claim form and, if available, proof of purchase of Nasal Ease, to the Claims Administrator at the address below by no later than February 25, 2014. Those without a receipt must swear or affirm under penalty of perjury that they purchased Nasal Ease during the Class Period. Those filing timely and valid claims are eligible to receive a product refund. Those objecting to the settlement must file a written statement with the court and serve a copy on Class Counsel, Counsel for Defendants, and the Claims Administrator, postmarked by February 25, 2014. Those excluding themselves from the settlement must send a letter to the Claims Administrator, postmarked by February 25, 2014, at the address below requesting to be excluded and cannot receive a benefit from this Settlement. Those who do nothing will receive no payment from the Settlement, and will be barred from filing or participating in any lawsuit against Defendant and the Released Persons for any of the released claims. The United States District Court for the Central District of California, Eastern Division will hold a hearing on March 24, 2014 at 9 a.m. at the federal courthouse located at 3470 Twelfth St., Courtroom 1, Riverside, Calif. 92501, to consider final approval of the settlement, including payment of reasonable attorneys' fees and costs to Class Counsel related to obtaining settlement relief, an incentive award to the named Plaintiff, and related issues. Participating Class Members may appear at the hearing in person or through their attorney at their own cost, but are not required to do so. For more information on this lawsuit, including how to file a claim, object, or exclude yourself or to obtain a detailed notice, claim form, or other documents, visit -- http://www.NasalEaseSettlement.com -- call toll -free 1-(888) 699-8593, or write to Nasal Ease Settlement Claims Administrator, 16630 Aston, Irvine, Calif. 92606. HOMEOLAB USA: Sued Over Misleading Marketing of Kids Relief Brand ----------------------------------------------------------------- James R. Hood, writing for Consumer Affairs, reports that a class action lawsuit filed on behalf of disgruntled parents claims that a homeopathic medicine manufacturer targets children for its "worthless" products sold under the Kids Relief brand. The lawsuit claims that HomeoLab USA has "wrongfully taken millions of dollars" through misleading marketing. Lead plaintiff Jessica Medina and three other named plaintiffs allege that HomeoLab claims, falsely, that its Kids Relief products provide "safe, effective relief" for colds and flu, Courthouse News Service reported. "In fact," the lawsuit states, "HomeoLab's products are worthless, and HomeoLab unfairly, deceptively and unjustly enriches itself o[n] the backs of children to turn a corporate profit." The suit takes issue with the basis of homeopathy, a treatment philosophy that originated more than 300 years ago in Germany, before the era of modern chemistry and medicine. It is generally dismissed as, at best, ineffective by medical authorities. The National Institutes of Health (NIH) says that there is "little evidence to support homeopathy as an effective treatment for any specific condition" but warns that not all homeopathic drugs are harmless. In the lawsuit, the parents say that HomeoLab pushes its Kids Relief Flu by claiming that its ingredients -- "autolysate of the heart and liver of the duck" -- relieves flu-like symptoms in children 2 years and over." "But the heart and liver of a Muscovy duck, at least at the dilutions claimed, can be scientifically and mathematically shown to have no medical value, no biological effect on humans," the complaint states. The lawsuit, filed in federal court in Fort Lauderdale, Fla., was filed on behalf of the parents by attorneys Thomas O'Connell and Sheila Zolnoor. ITFC IMPORTERS: Recalls Aslan Chocolate Golbon Hazelnut ------------------------------------------------------- Starting date: October 24, 2013 Type of communication: Recall Alert sub-type: Allergy Alert Subcategory: Allergen - Gluten Hazard classification: Class 3 Source of recall: Canadian Food Inspection Agency Recalling firm: ITFC Importers & Distributors Distribution: Ontario Extent of the product distribution: Retail CFIA reference number: 8414 Affected products: 297 g. Aslan Chocolate Golbon Hazelnut with Exp. Date: 24.12.2013 and Lot Number: 4313 629045 161 066 JPMORGAN CHASE: Settles Residential MBS Suit for $5.1 Billion ------------------------------------------------------------- According to an article posted by Todd Ruger at The Blog of Legal Times, the Federal Housing Finance Agency reached settlements worth $5.1 billion with JPMorgan Chase & Co. in connection with residential mortgage-backed securities and single-family mortgages purchased by Fannie Mae and Freddie Mac, the agency announced on Oct. 25. JPMorgan agreed to pay $4 billion -- $1.26 billion to Fannie Mae and $2.74 billion to Freddie Mac -- to address claims that the company violated federal and state securities laws when it sold securities to the companies between 2005 and 2007. That settlement includes securities sold by JPMorgan, Bear Stearns Cos. Inc. and Washington Mutual. JPMorgan also agreed to pay $1.1 billion -- $670 million to Fannie Mae and $480 million to Freddie Mac -- to resolve representation and warranty claims related to single-family mortgage purchases by the two companies. The deal is reportedly part of a larger $13 billion settlement that JPMorgan is preparing to make with the U.S. Department of Justice. "The satisfactory resolution of the private-label securities litigation with J.P. Morgan Chase & Co. provides greater certainty in the marketplace and is in line with our responsibility for preserving and conserving Fannie Mae's and Freddie Mac's assets on behalf of taxpayers," FHFA Acting Director Edward DeMarco said in a written statement. "This is a significant step as the government and J. P. Morgan Chase move to address outstanding mortgage-related issues." In the deal with the FHFA, JPMorgan did not admit liability or wrongdoing. The terms also said the settlement was not an admission or concession from JPMorgan of any alleged liability of Washington Mutual Bank, which collapsed in 2008. JPMorgan is fighting allegations in Washington federal district court that the company is liable for WaMu's shoddy securities. The bank's lawyers at Sullivan & Cromwell are pointing fingers at the Federal Deposit Insurance Corporation. The plaintiff, Deutsche Bank, is suing JPMorgan and the FDIC. Alfred Pollard, the housing agency's general counsel, lauded the work of Quinn Emanuel Urquhart & Sullivan, which sued on behalf of the FHFA. Philippe Selendy -- philippeselendy@quinnemanuel.com -- who lead Quinn's securities and structured finance practice, said in a written statement the firm will continue to pursue FHFA's claims against the defendants in eleven remaining cases. "After more than two years of hard-fought litigation in the federal district and appellate courts, this landmark $4 billion settlement with J.P. Morgan is a clear victory for the integrity of the financial markets and the American taxpayer," Mr. Selendy said. Mr. Pollard also credited the "strong work" of the FHFA Office of General Counsel's litigation group under Stephen Hart and the legal and business teams at Freddie Mac and Fannie Mae. JUSTICE COMMISSIONED: Failed to Pay Overtime Wages, Suit Claims --------------------------------------------------------------- Muhammad Azfar Syed, and all others similarly situated v. Justice Commissioned Officer, LLC; and, Sirwan Hasan Muhammed, Case No. 4:13-cv-02982 (S.D. Tex., October 9, 2013) seeks equitable relief, compensatory and liquidated damages, attorney's fees, all costs of the action, and post-judgment interest for the Defendants' alleged willful failure to pay overtime to the Plaintiff and all others similarly situated, in the course of their employment with the Defendants. Defendant Justice Commissioned Officer, LLC, is a Texas limited liability company based in Austin. Sirwan Hasan Muhammed is the sole managing member and the sole director of Justice Commissioned Officer. The Plaintiff is represented by: Salar Ali Ahmed, Esq. ALI S. AHMED, P.C. One Arena Place 7322 Southwest Frwy., Suite 1920 Houston, TX 77074 Telephone: (713) 223-1300 Facsimile: (713) 255-0013 E-mail: aahmedlaw@gmail.com KAISER PERMANENTE: Faces Class Action Over Mental Health Care ------------------------------------------------------------- Rachel Raskin-Zrihen, writing for Times-Herald, reports that a lawsuit served at Kaiser Permanente's Oakland headquarters on Oct. 24 alleges that Kaiser Foundation Health Plan facilities, including Vallejo's, routinely deny its members timely access to mental health services. Kaiser officials call the suit a ploy in ongoing contract negotiations. The Oakland-based law firm of Siegel LeWitter Malkani that works closely with the National Union of Healthcare Workers (NUHW) -- which represents Kaiser's mental health professionals and optical workers -- filed the suit earlier this month on behalf of "three named plaintiffs and thousands of other Kaiser members who have been harmed" by this alleged practice, attorney Jonathan Siegel said on Oct. 24. The union represents some 70 members at Kaiser Permanente Vallejo Medical Center. The firm has sued Kaiser before, Mr. Siegel said. Kaiser officials called the suit the "NUHW's latest attempt to use inaccurate claims about our mental health care services to apply pressure in their protracted labor negotiations with Kaiser Permanente." The union's actions do "nothing to further the negotiations that should be taking place at the table," they said. The lawsuit alleges that Kaiser routinely violates state law by refusing to provide critical mental health services to its members within the time frame set by law. "As a result, Kaiser members have been denied urgent services, forced to wait for long periods of time to receive needed services, discouraged from seeking services altogether, or compelled to incur out-of-pocket expenses for treatment outside of the Kaiser system," according to the suit. The lead plaintiff, Point Richmond resident Susan Futterman, said her husband, Fred Paroutaud, killed himself after "desperate" requests for an urgent mental health appointment were delayed until his psychiatrist returned from vacation. Los Angeles area plaintiff Megan Mortensen wound up seeking an urgent mental health appointment outside the system after Kaiser allegedly "refused" her request for a timely appointment after the loss of her brother. The third plaintiff, Acianita Lucero of Oakland, allegedly "made repeated requests for Kaiser to provide her with an urgent mental health appointment but Kaiser refused to see her within the 48 hours required by law," according to the suit. The suit follows a report from earlier this year by the California Department of Managed Health Care which suggested Kaiser needed to reduce mental health appointment wait times. Kaiser was fined $ 4 million -- the second largest fine issued by the Department -- and issued a Cease and Desist Order to correct the problems, Siegel said. Kaiser officials say the report did not fault Kaiser's mental health care quality or member's ability to obtain urgent or emergency mental health care. "What was identified in the DMHC survey were some areas where our non-urgent appointment wait times and data tracking needed improvement," officials said. "We took the findings seriously, have submitted a corrective action plan to the DMHC, and have worked to correct the issues identified in the survey." The class action lawsuit seeks compensatory and statutory damages for class members as well as an injunction requiring Kaiser to comply with the law, Mr. Siegel said. "We're suing for Kaiser to clean up their act and provide mental health services to their clients that complies with the law," he said. "And we want damage compensation for the tens of thousands of Kaiser members who have been victimized by this." LOBLAW COMPANIES: Recalls Seaquest Frozen Bay Scallops ------------------------------------------------------ Starting date: October 24, 2013 Type of communication: Recall Alert sub-type: Notification Subcategory: Labelling Hazard classification: Class 3 Source of recall: Canadian Food Inspection Agency Recalling firm: Loblaw Companies Limited Distribution: National Extent of the product distribution: Retail CFIA reference number: 8401 Affected products: 454 g. Seaquest Frozen Bay Scallops with Best Before 2014 AL 01, 2014 AL 02, 2014 MR 31, 2014 MA 16, 2014 JN 03, 2014 JN 04and UPC 0 60383 69512 5 LONE STAR WHEEL: Fails to Pay OT; Tells Employees to Use Aliases ---------------------------------------------------------------- Acencion Adolfo Calderon Campos a/k/a Adolfo Calderon a/k/a Campos Acencion and all others similarly situated under 29 U.S.C. 216(B) v. Lone Star Wheel Components, Inc., Jerry L. Coffey, Case No. 3:13-cv-04088-N (N.D. Tex., October 9, 2013) is brought as a collective action on behalf of similarly situated employees, who have not been paid overtime and minimum wages for work performed in excess of 40 hours weekly. From January 17, 2012, through May 3, 2013, Mr. Campos relates that he worked an average of 94.5 hours per week and was paid an average of $8 per hour, but was never paid the extra halftime overtime rate for hours worked above 40 hours in a week as required by the Fair Labor Standards Act. He contends that the Defendants willfully and intentionally refused to pay his overtime wages as required by the FLSA. Specifically, he alleges that he was told by the Defendants to use two different names under the payroll because he worked too many hours for the Defendants. Mr. Campos was a resident of Dallas County, Texas, at the time that this dispute arose. Lone Star Wheel Components, Inc., is a company that regularly transacts business within Dallas County. Jerry L. Coffey, is a corporate officer and owner of the Defendant Company who runs the day-to-day operations of the Company. The Plaintiff is represented by: Jamie Harrison Zidell, Esq. J.H. ZIDELL, P.C. 6310 LBJ Freeway, Suite 112 Dallas, TX 75240 Telephone: (972) 233-2264 Facsimile: (972) 386-7610 E-mail: zabogado@aol.com LOREAL USA: Models File Class Action Over Image Use in Ads ---------------------------------------------------------- Kat Greene and Erin Coe, writing for Law360, report that a group of models on Oct. 24 filed a proposed class action in New York Supreme Court against at least seven agencies, two advertising firms, Loreal USA Inc. and the owner of Procter & Gamble, saying the companies had breached their contracts and cheated the models out of money with the repeated use of their photos. At least 10 models filed suit against the agencies, including Wilhemina Models Inc., Ford Models Inc. and Elite Model Management New York LLC, alleging they had collected checks from ad agencies and companies that used the models' likenesses on products such as hair color boxes and in television commercials but had not paid the models for that work, according to the complaint filed on Oct. 24. Photos of the respective models were used in advertisements for products such as toothpaste, hair color and tequila in the U.S. and abroad, but the models were never informed of this by their agencies, according to the suit. They are seeking payment for use of their images. "[The models] performed their obligations by providing their images," the models wrote in the Oct. 24 complaint. "The modeling agency defendants failed to perform when they failed to pay to the plaintiffs moneys received as agents on the plaintiffs' behalf." Louisa Raske, one of the named plaintiffs in the class action, said she was in a CVS drugstore in Miami in June 2012 when she spotted her face on Loreal hair color boxes. She had signed a contract with Next Management LLC's Miami and New York offices in 1997, when she was 16, according to the suit. The agency later dropped her but had apparently continued to sell her images to companies, Ms. Raske alleged. Ms. Raske said in the complaint that the agency tried to avoid her when she asked for a billing statement accounting for the use of her image. She turned instead to advertising agency McCann Erickson Corp., which she remembered having worked with during the booking for the boxes, she said. McCann provided her with an accounting of how much they'd spent for the use of her image, which Ms. Raske then took to Next, according to the suit. Next paid her $31,000 to match what McCann had told her but refused to provide her with an independent accounting of what it had earned off her image without paying her, according to the Oct. 24 complaint. Each model in the suit lodged similar complaints, adding up to claims of breach of contract and unjust enrichment for the modeling agencies and breach of two sections of New York's Civil Rights Law for the advertising agencies and companies. In a similar individual suit in 2011, model Ann Kirsten Kennis settled with the band Vampire Weekend over the use of her photo on the cover of their album "Contra." U.S. District Judge Valerie Fairbank Kennis' dismissed with prejudice her case against the band, commercial record label XL Recordings Ltd. and photographer Tod Brody after all of the parties except Brody entered into a settlement agreement. The judge on Oct. 25 also dismissed without prejudice Vampire Weekend and XL's cross claim against Mr. Brody. Ms. Kennis, who was a high-fashion model in New York City in the 1980s and 1990s, filed suit in July 2010 in state court claiming misappropriation of her likeness, unjust enrichment and other allegations, but it was removed a month later to federal court. The suit alleged that Vampire Weekend contracted Brody to produce a photograph for the cover of the album "Contra," and Mr. Brody submitted a photograph of Ms. Kennis wearing a yellow Polo monogrammed shirt standing against a wall, along with a forged photographic release signed by someone claiming to be "Kirsten Johnsen," who had the same address as Mr. Brody. Mr. Brody was paid $5,000 for the photograph and was set to receive additional payments if the CD album met certain sales thresholds, according to the complaint. Vampire Weekend and XL were accused by Ms. Kennis of failing to conduct any investigation to determine Mr. Brody's background or to verify the legitimacy of the sham release. Ms. Kennis claimed the band used her image during its concerts and in promotional posters, ads and merchandise, and after the album was released in January 2010, it debuted as No. 1 on the Billboard Top 200. The models are represented by Mark E. Seitelman -- mark@seitelman.com -- and S. Skip Taylor of Mark E. Seitelman Law Offices. Counsel information for the defendants could not be immediately determined. The case is Alex Shanklin et al. v. Wilhemina Models Inc. et al., case number 653702/2013, in the Supreme Court of the State of New York, County of New York. LORILLARD TOBACCO: Florida Jury Awards $3.5MM Mesothelioma Damages ------------------------------------------------------------------ Myron Levin, writing for FairWarning, reports that it's hard to think of anything more reckless than adding a deadly carcinogen to a product that already causes cancer -- and then bragging about the health benefits. That's what Lorillard Tobacco did 60 years ago when it introduced Kent cigarettes, whose patented "Micronite" filter contained a particularly virulent form of asbestos. Smokers puffed their way through 13 billion Kents from March, 1952 until May, 1956, when Lorillard changed the filter design. Six decades later, the legal fallout continues -- including last month when a Florida jury awarded record damages of more than $3.5 million. Lorillard and Hollingsworth & Vose, the company that supplied the asbestos filter material, have faced numerous lawsuits by victims of mesothelioma, an extremely rare and deadly asbestos-related cancer that typically shows up decades after initial exposure. Plaintiffs have included factory workers who produced the cigarettes or filter material, and former smokers who say they inhaled microscopic asbestos fibers through the filters (Lorillard says hardly any fibers escaped.). While there is no official count, records and interviews suggest that the number of mesothelioma claims filed against the companies since the 1980s is at least in the low hundreds. Lorillard filings with the Securities and Exchange Commission show the company settled 90 cases in a recent period of just over two years, and that 60 more cases are pending. Time is on the companies' side. Since factory workers and smokers with potential claims all are at least in their 70s and 80s, the strange saga of the asbestos filter should soon be coming to an end. Surprisingly, however, there has been a burst of new cases in the last few years, according to filings with the SEC. Growing awareness of the asbestos episode is probably the cause. Nowadays, a mesothelioma patient is almost certain to be asked by his doctor or lawyer: Did you happen to smoke Kents in the 1950s? Lorillard officials did not reply to emails and calls seeking comment. H&V also declined interview requests, though company lawyer Andrew McElaney noted that the companies have won most cases tried to verdicts. Kent was Lorillard's response to the health scare of the early 1950s, when the link between smoking and lung cancer began drawing wide attention. Tobacco companies scurried to roll out filters to calm jittery smokers and keep them from quitting in droves. The health benefits would prove illusory, but the switch to filters averted the potential loss of millions of customers. Lorillard named its first filter for Herbert A. Kent, briefly its president, and aggressively touted the superiority of the Kent Micronite filter. It was a blend of cotton, acetate, crepe paper and crocidolite asbestos -- sometimes called "African" or "Bolivian blue" asbestos because of its bluish tint. At the time, the risk of deadly lung disease to heavily exposed asbestos miners and plant workers was already well-documented. But asbestos also was known to be an effective filter material, dense enough to stop minute particles and gases, as long as it stayed put. Lorillard had learned of the use of crocidolite in gas masks made for the Army Chemical Corps. In contracting with H&V to supply the material, Lorillard agreed to be held solely responsible for any "harmful effects'' of the cigarette filters. The smokers' exposures were "very, very low. I don't believe it increased the risk." Lorillard launched Kent at a press conference at New York's Waldorf-Astoria, touting the Micronite filter as offering "the greatest health protection in cigarette history." Playing on the public's gee-whiz faith in science and technology, Kent ads told a glamorous, though vague, back story of how the quest for the new filter "ended in an atomic energy plant, where the makers of KENT found a material being used to filter air of microscopic impurities." "What is 'Micronite'?" another ad asked. "It's a pure, dust-free, completely harmless material that is so safe, so effective, it actually is used to help filter the air in operating rooms of leading hospitals." The marketing blitz included advertising in medical journals and mailing gift boxes of Kent to physicians, along with "Dear Doctor" letters talking up the advantages for "patients whom you have felt obliged to advise to cut down or cut out smoking." The filter material was produced at H&V plants in West Groton and Rochdale, Mass., and shipped to Lorillard cigarette plants in Louisville, Ky., and Jersey City, N.J. For H&V workers, the results were catastrophic, with whole families destroyed by asbestos disease. A woman named Elizabeth Jacobs buried her husband and brother, both H&V workers, who died of mesothelioma and asbestosis, respectively. Then Jacobs also died of mesothelioma in 1985 at the age of 54. Her only known exposure to asbestos came from laundering her husband's dusty work clothes. "Dust-creating monster" The plant was a "dust-creating monster," said Dr. James A. Talcott, an oncologist who co-authored a study of H&V filter workers. Published in the New England Journal of Medicine in 1989, it tracked the health status of 33 former employees of the West Groton plant. By then, 28 had died -- more than three times the expected number, based on average life spans -- including 18 from asbestos-related illnesses. Of the five surviving workers, four were suffering from asbestos diseases. Dozens of Lorillard plant workers also contracted mesothelioma. An exhibit in a court case in Louisville listed 34 victims by initials only, under the heading: "Lorillard Workers With Mesothelioma At Louisville And Jersey City Plants." How much asbestos Kent smokers inhaled has been a more contentious and ambiguous subject. Internal documents produced in lawsuits highlight Lorillard's deep anxieties that Kent smokers were breathing asbestos. For example, an April, 1954 letter from Lorillard research director Harris B. Parmele to company president W.J. Halley stated that researchers had found "traces of mineral fiber" in the smoke. "We are embarked upon a program of attempting to work out a method for the elimination of the presence of such fibers in the smoke," the letter said. A memo in September, 1954, H&V official Peter Breymeier discussed the need "to find a way of anchoring asbestos . . . All efforts are to be exerted to solve the asbestos-dust-in-Kent smoke problem." And H&V president A.K. Nicholson stated in a memo two months later: "It is Lorillard's belief that asbestos must be eliminated from the Kent cigarette as soon as possible because of a whispering campaign started by their competitors of the harmful effects of asbestos." As a result, the memo said, H&V would "discontinue that part of our research program devoted to the fixing of asbestos fibres and direct the entire attention of the program toward the complete elimination of asbestos." Even so, Lorillard continued using asbestos in the filters for the next 16 months, and continued to sell existing stocks of Kents for several more months. Litigating Hard The filter litigation is hardly Lorillard's biggest challenge. The company depends for nearly 90 percent of sales on its popular Newport menthol brand. The Food and Drug Administration is considering whether to restrict the use of menthol in cigarettes -- which would be a bigger blow to Lorillard than to its rivals. The company also faces some 4,500 lawsuits by individual smokers in Florida, thanks to a Florida Supreme Court ruling that made it easier to sue tobacco companies for smoking-related harms. Though the filter lawsuits are a fraction of that number, Lorillard fiercely defends the ones that go to trial. "They litigate hard," said Timothy F. Pearce, a lawyer with the Levin Simes firm in San Francisco who successfully tried a filter case in 2011. "It's no small undertaking to be in a trial with them," he said. "They had, like, 13 lawyers" working on the case. Lorillard and H&V have won 17 of 23 trials of filter cases. One of their six losses came last month in Broward County, Fla., when jurors ordered them to pay more than $3.5 million in damages to former Kent smoker and mesothelioma victim Richard Delisle. A key contention of the companies is that little or no asbestos leaked from Kent filters, so plaintiffs contracted mesothelioma in some other way. Despite the nervous tone of internal letters and memos, they say that tests of Kent smoke in the early '50s never found more than three fibers per cigarette. The smokers' exposures were "very, very low," Kevin H Reinert, Lorillard's director of regulatory science policy, testified in a deposition in April "I don't believe it increased the risk." Plaintiffs have found this hard to challenge, since Lorillard failed to preserve most of the original test reports. Plaintiff experts testing cigarettes from old packs of Kents have found abundant asbestos fibers in the smoke. Lorillard and H&V contend the tests were unreliable because the cigarettes had deteriorated with age. However, the companies' first line of defense has been to convince juries that plaintiffs didn't smoke Kents in the first place, and only say they did because they have a bad memory or are shading the truth. To undermine their credibility, defense lawyers and investigators fan out around the country to track down and interview family members, school chums, Army buddies -- anyone who might have known the plaintiff in the 1950s. It's hard to establish the brand of cigarette a person smoked decades ago, and the strategy has often proved successful. It failed in the case of Don Lenney, who not only won in court, but nearly four years after being diagnosed is still alive (Many mesothelioma victims die within a year.). Mr. Lenney, 76, a former insurance agent in Northern California, says he started smoking in high school, and soon switched from unfiltered brands to Kent. "The Kent Micronite filter was supposed to be the healthy alternative," he told FairWarning, "so I started smoking Kents." Diagnosed with mesothelioma in November, 2009, Mr. Lenney had his left lung removed and underwent chemotherapy and radiation treatments. He also sued Lorillard and H&V. "They attacked my credibility as far as whether I had actually smoked Kent cigarettes," Mr. Lenney recalled. Their investigators "were very pushy," Mr. Lenney said. "They would knock on somebody's door and just ask to interview them . . . without even calling first to set up an appointment," he said. "A number of people were put out with that kind of treatment." In March, 2011, Lorillard and H&V were found liable by a state court jury in San Francisco. The judge later awarded Lenney and his wife about $1.1 million in damages and costs. The companies appealed and the case was resolved in a confidential settlement. Dimitris O. Couscouris, a Los Angeles-area resident with mesothelioma, did not fare as well. Lorillard mounted a relentless attack on Mr. Couscouris' credibility, suggesting that during his teenage years in Australia he had evaded the draft, and had once improperly received unemployment benefits. Defense lawyers also seized on a statement by a plaintiff witness that Mr. Couscouris had become too sick to walk. They sent a private investigator to conduct surveillance at Mr. Couscouris' home, and videotaped him and his wife getting into their car and making a few stops, including at a restaurant and a shopping mall. In October, 2012, a Los Angeles jury found that Mr. Couscouris had failed to prove he'd smoked Kents, handing a victory to the defense. "The trial ended up being more of an attack on my client," said Mr. Couscouris' lawyer Trey Jones. "Almost like a 'blame the victim' type thing." LUMINA HEALTH: New Jersey Judge Refuses to Remand Class Action -------------------------------------------------------------- Linda Chiem, writing for Law360, reports that a New Jersey federal judge on Oct. 24 refused to remand to state court a proposed class action alleging Lumina Health Products Inc. misled consumers on the efficacy of its dietary supplement Cell Food, ripping the plaintiff's argument that the case is "non-class certifiable." U.S. District Judge Stanley R. Chesler denied plaintiff Harold M. Hoffman's motion to remand the case to New Jersey Superior Court, rejecting his argument that his putative class action didn't meet the $5 million damages threshold to warrant federal jurisdiction under the Class Action Fairness Act. Mr. Hoffman, who also is a Bergen County attorney who appointed himself lead counsel in the suit, had argued that his dual role as class counsel and class plaintiff rendered the suit "non-class certifiable" in the Third Circuit, and, as such, his alleged individual damages cannot be aggregated to satisfy CAFA's $5 million jurisdictional threshold, according to the opinion. "Plaintiff's argument is perplexing," Judge Chesler wrote. "To read his complaint, this case concerns the fraudulent marketing and distribution of defendant's Cell Food product to 'thousands of consumers throughout the United States'; Plaintiff, who himself has allegedly suffered at least $29.95 in damages from his purchase of Cell Food, just happens to be one of those consumers. According to the complaint, at least, this is exactly the type of case CAFA is intended to address." Mr. Hoffman essentially argued that the amount in controversy for his putative nationwide class action was just the $29.95 he paid for Cell Food and the amount in controversy would be $30 or $90, if trebled. Additionally, Mr. Hoffman's argument fails because CAFA expressly defines "class members" for purposes of the jurisdictional calculation to include those persons "who fall within the definition of the proposed or certified class," the judge said. "It would thus run contrary to the plain language of the statute to only aggregate, as plaintiff suggests, the claims of the members who might end up in the as-of-yet certified (or not certified) class, whatever that class may end up being (or not being)," Judge Chesler said. Furthermore, Lumina has submitted evidence that, in the two-year period covered by Judge Hoffman's complaint, it sold at least $5 million of its Cell Food nationwide, so the suit clearly falls within the federal court's jurisdiction under CAFA, according to the opinion. Mr. Hoffman launched suit in July alleging that Florida-based Lumina made "blatant misrepresentations" regarding the effectiveness of Cell Food, duping consumers nationwide into buying the product with the belief that it was "effective in delivering improved energy, endurance and health," in violation of the New Jersey Consumer Fraud Act. Lumina has argued that Mr. Hoffman's attempt to have his suit moved to state court is based on arguments that are absolutely devoid of legal merit, according to its brief opposing Hoffman's motion to remand. Furthermore, Lumina argued that Hoffman is something of a serial class action plaintiff who purchases products and subsequently sues merchants and manufacturers claiming consumer fraud violations. Since January 2011, Mr. Hoffman has filed at least 75 putative class actions in the New Jersey Superior Court, in which he purported to serve as both class representative and class counsel, pro se, according to Lumina. "But to avoid federal jurisdiction, Mr. Hoffman, though claiming to be a fiduciary for a putative class, has thrown the class 'under the bus' by arguing that a class could never be certified in federal court, because he has chosen a dual role for himself," Lumina said. Mr. Hoffman did not immediately respond to requests for comment on Oct. 25. Counsel for Lumina was not immediately available for comment. Mr. Hoffman represents himself. Lumina is represented by Michael R. McDonald -- mmcdonald@gibbonslaw.com -- and Jennifer Marino Thibodaux -- JMarino@gibbonslaw.com -- of Gibbons PC. The case is Hoffman v. Lumina Health Products Inc., case number 2:13-cv-04936, in the U.S. District Court for the District of New Jersey. MCCABE ASSOCIATES: Faces Class Suit Over 2013 PGA Championship -------------------------------------------------------------- Donald Recino, individually and on behalf of all others similarly situated v. McCabe Associates, Inc., Case No. 6:13-cv-06558-MAT (W.D.N.Y., October 9, 2013) arises from alleged violations of the Fair Labor Standards Act ("FLSA"). From August 5, 2013, through August 16, 2013, McCabe employed Mr. Recino as a security guard at the 2013 PGA Championship event at Oak Hill Country Club in Rochester, New York. The Plaintiff contends that he and others similarly situated were and are entitled to be paid at least one and one-half of their respective regular rates of pay for each hour in excess of 40 hours that they worked in any workweek pursuant to the FLSA. Mr. Recino alleges that the Defendant failed to pay him and the class all of their earned wages. Mr. Recino is a citizen of the state of New York. McCabe Associates, Inc., is a New York corporation headquartered in Rochester. McCabe provides security services in New York, Florida and internationally. The Plaintiff is represented by: Kenneth Joel Katz, Esq. Nicole D. Grunfeld, Esq. KATZ MELINGER PLLC 137 Fifth Avenue, 11th Floor New York, NY 10010 Telephone: (212) 460-0047 Facsimile: (212) 428-6811 E-mail: kjkatz@katzmelinger.com ndgrunfeld@katzmelinger.com MERCK & CO: Incretin Products MDL Moves Forward in California ------------------------------------------------------------- Cliff Rieders, Esq. at Rieders, Travis, Humphrey, Harris Waters & Waffenschmidt report that the federal litigation concerning products liability claims brought by users of Janvuia, Byetta, Janumet and Victoza is moving forward in a multi-district litigation (MDL) established in U.S. District Court for the Southern District of California. Attorneys for Plaintiffs submitted a Joint Status Report to the Court on October 7, 2013 which, among other things, proposes a Plaintiff Steering Committee leadership structure for the ongoing proceedings. The initial conference on the litigation will be held on October 17, 2103. The litigation is called In Re: Incretin Products Liability Sales and Marketing Litigation, MDL 2452. The lawsuits filed allege that plaintiffs developed pancreatic cancer, pancreatitis and thyroid cancer while taking Januvia, Byetta, Janumet and Victoza to regulate blood sugar to control Type 2 diabetes. There are approximately 60 lawsuits that have been consolidated into the California MDL involving the incretin mimetic class of drugs. In 2009, for example, the manufacturer of Januvia was ordered to add new warnings to the Januvia label about a possible association with pancreatitis, after the U.S. Food & Drug Administration (FDA) became aware of 88 cases of Januvia patients developing acute pancreatitis. However, there is no warning concerning development of pancreatic or thyroid cancer. A 2014 study published in the Journal of the American Medical Association (JAMA) showed that patients taking incretin mimetic drugs such as Januvia and Janumet are significantly more likely to develop pancreatic ailments and be hospitalized for acute pancreatitis, often a precurser to pancreatic cancer. A 2011 study published in the Journal of Gastroenterology showed that the incretin mimetic class of drugs increased the risk of pancreatic and thyroid cancer, as well as pancreatitis. This past March, the FDA announced a new review of the entire incretin mimetics class after a small study indicated that the drugs could cause dangerous changes in the cells of the pancreas. While the FDA recently announced it was unable to confirm this risk, the agency's review of the drugs is ongoing. MONDELEZ INT'L: Plaintiff Appealed Dismissal of "Manchouck" Suit ---------------------------------------------------------------- Monique Manchouck appealed to the U.S. Court of Appeals for the Ninth Circuit from an order dismissing her class action lawsuit against Mondelez International, Inc., an Illinois corporation, doing business as Nabisco. The lawsuit arose from Nabisco's labeling and advertising displayed on the front packaging of certain of its products stating that those products were "made with real fruit." In her complaint, Ms. Manchouck alleges four claims for relief: (1) unfair and fraudulent business practices; (2) unlawful business practices; (3) false and misleading advertising; and (4) violations of Section 1750 of the California Civil Code. She sought injunctive relief, disgorgement, restitution, actual and punitive damages, and attorney's fees and costs. On September 26, 2013, the Defendant's motion to dismiss the lawsuit was granted without leave to amend. The Plaintiff-Appellant is represented by: Benjamin Michael Lopatin, Esq. THE LAW OFFICES OF HOWARD W. RUBINSTEIN, P.A. One Embarcadero Center San Francisco, CA 94111 Telephone: (415) 494-7701 E-mail: blopatin@gmail.com The Defendant-Appellee is represented by: Kenneth K. Lee, Esq. JENNER & BLOCK, LLP 633 West 5th Street Los Angeles, CA 90071-2054 Telephone: (213) 239-5152 E-mail: KLee@jenner.com - and - Dean N. Panos, Esq. JENNER & BLOCK LLP 353 N. Clark Street Chicago, IL 60654 Telephone: (312) 923-2765 E-mail: dpanos@jenner.com The appellate case is Monique Manchouck v. Mondelez International, Inc., Case No. 13-17029 (9th Cir., October 9, 2013). The original case is Monique Manchouck v. Mondelez International, Inc., Case No. 3:13-cv-02148-WHA, in the U.S. District Court for the Northern District of California, San Francisco. NATROL INC: Health Benefit Claims Are False, Suit Says ------------------------------------------------------ Linda Dao, on behalf of herself and all others similarly situated v. Natrol, Inc. d.b.a. Delaware Natrol, Inc., a Delaware Corporation and Does 1 through 20, Case No. 3:13-cv-02433-BEN-WMC (S.D. Cal., October 9, 2013) relates to Natrol Glucosamine Chondroitin supplements ("Natrol GC"), a line of Glucosamine and Chondroitin based supplements that purportedly provides a variety of health benefits focused on improving joint health, mobility, flexibility, and lubrication. The Defendants distribute, market, and sell Natrol GC. These claimed health benefits are the only reason a consumer would purchase Natrol GC, Ms. Dao says. She alleges that the Defendants' advertising claims are false, misleading, and reasonably likely to deceive the public. She asserts that all available scientific evidence demonstrates that the Natrol GC products have no efficacy at all: that they are ineffective in the improvement of joint health, provide no benefits related to the reduction of pain in human joints, and they do not protect cartilage from breakdown. Linda Dao is a resident of San Diego County, California. In early March of 2013, she purchased one bottle of Natrol GC at a Ralph's grocery store in San Diego, California. Natrol, Inc. was incorporated in Delaware and is headquartered in Chatsworth, California. Natrol researches, develops, manufactures, distributes, markets, and sells its Natrol GC products to tens of thousands of consumers in California and throughout the United States. The true names and capacities of the Doe Defendants are currently unknown to the Plaintiff. The Plaintiff is represented by: Todd D. Carpenter, Esq. CARPENTER LAW GROUP 402 West Broadway, 29th Floor San Diego, CA 92101 Telephone: (619) 347-3517 E-mail: todd@carpenterlawyers.com - and - James R. Patterson, Esq. PATTERSON LAW GROUP 402 West Broadway, 29th Floor San Diego, California 92101 Telephone: (619) 398-4760 Facsimile: (619) 756-6991 E-mail: jim@pattersonlawgroup.com NOVO NORDISK: Recalls NovoMix30 FlexPen & Penfill Treatments ------------------------------------------------------------ Medical Xpress reports that batches of Novo Nordisk's diabetes treatments NovoMix 30 FlexPen and Penfill are being recalled, the European Medicines Agency said on Oct. 25. "In the affected cartridges the level of insulin may vary between 50 percent and 150 percent of the labelled insulin units, which could lead to hypoglycaemia or hyperglycaemia," the agency said in a statement. Only a small percentage of cartridges, 0.14 percent, contain the wrong amount, the Danish company said. Patients whose products were labeled with numbers from the affected batches should "make an appointment with their doctor or nurse for switching treatment as soon as it is feasible," the EU regulator said. A spokesperson for the company was not immediately available on Oct. 25. Novo Nordisk has almost half the global insulin market, which has grown rapidly in recent years following a rise in the number of people suffering from diabetes, estimated by the World Health Organization to stand at around 347 million. NVIDIA CORP: Court Approves Class Action Settlement Over GPUs ------------------------------------------------------------- NPT RicePoint Class Action Services on Oct. 25 disclosed that a settlement has been reached and approved by the Court whereby NVIDIA Corporation has agreed to pay CAD $1,900,000.00 in exchange for a full release of claims brought on behalf of Canadians who purchased a computer for use and not for resale equipped with a defective NVIDIA graphics card known as either a Graphics Processing Unit or a Media Communications Chip ("GPUs"). Consumers are eligible for compensation if they purchased certain laptop computers for use and not for resale made by Apple, Compaq, Dell, HP, or Sony that contain a defective GPU made by NVIDIA. For a full list of "Affected Computers", visit. http://www.canadiannvidiasettlement.com An Affected Computer is one that contains the defective NVIDIA GPU and which suffered or exhibited one or more of the following "Qualifying Symptoms": a. distorted or scrambled video; b. no video on the screen even when the computer is on; c. random characters, lines or garbled images; d. intermittent video issues; or e. failure to detect wireless adaptor or wireless networks. The Qualifying Symptoms vary by computer manufacturer. To view a list of the symptoms by computer, visit http://www.canadiannvidiasettlement.com Qualifying class members will receive cash compensation based on the severity of the Qualifying Symptoms experienced, the loss of use of the computer, the age of the Affected Computer, any out-of- pocket repair expenses, any loss of use, and other relevant factors. To submit a claim, class members can obtain a Claim Form at http://www.canadiannvidiasettlement.comor by regular mail by contacting the Administrator at 1-866-432-5534. In order to make a successful claim, class members should provide the following: * Proof they bought one or more Affected Computers; * Proof of the date of purchase of an Affected Computer; * A description of the Qualifying Symptoms experienced and when they were experienced; * A brief explanation of whether they lost the use of the computer permanently as a result of the Qualifying Symptoms or temporarily until there was a repair; and, * Proof of any out of pocket expenses paid for in connection with the Qualifying Symptoms (e.g. repair bills, external memory drives, cooling pads, computer rental, shipping costs). Cash payments will be made once satisfactory proof of purchase and a declaration respecting the experience of Qualifying Symptoms has been received by the Claims Administrator. Cash payments will be made for total loss of use based on the age of the computer; temporary loss of use having regard to the nature and duration of the loss of use; and reimbursement for out-of- pocket expenses. The amount of compensation will be determined by the Claims Administrator who will apply a compensation grid and settlement administration guidelines. To view the Distribution Protocol, visit http://www.canadiannvidiasettlement.com To receive compensation, class members must mail or otherwise submit a completed Claim Form and any supporting documents to the Administrator no later than February 25, 2014. OKLAHOMA: Foster Home Recruitment Data Inaccurate, Experts Say -------------------------------------------------------------- Randy Ellis, writing for The Oklahoman, reports that Oklahoma has gotten off to a rocky start in its initial efforts to implement child welfare reforms as part of a settlement agreement to a federal class-action lawsuit. State Department of Human Services officials have submitted inaccurate data concerning foster home recruitment and shelter stays by children in state custody, according to the initial report released on Oct. 23 by three out-of-state experts hired to monitor Oklahoma's compliance with the settlement agreement. The state also has jeopardized reform efforts by failing to fully deliver promised annual pay increases for child welfare workers and foster parents, the report said. "The report findings are troubling, and certainly call into question whether DHS is meeting its commitments to Oklahoma's children," said Marcia Robinson Lowry, executive director of Children's Rights, the national advocacy organization that filed the lawsuit against DHS. "In the face of acknowledged problems, DHS has been unable to supply adequate data and has adopted some seemingly questionable practices. Perhaps most detrimental, the state has failed to increase payments to foster parents or bolster caseworker salaries, both of which are critical to create lasting change." Ms. Lowry told The Oklahoman that her organization is so concerned by the report that it plans to file a formal complaint with the out-of-state monitors that could lead to the state being ordered to comply with its agreed upon reform plan. DHS Director Ed Lake called his agency's reform efforts "a work in progress." "It's not a sprint. It's a marathon," he said. The outside monitors found that DHS repeatedly overcounted the number of new foster and adoptive homes it had recruited in reports the agency submitted. DHS officials initially reported that 1,543 new foster and adoptive homes were recruited in fiscal year 2011, but that number was later lowered to 1,169 after the overseers identified numerous homes that had been double counted or otherwise should not have been included. DHS also initially reported it had recruited 796 new traditional foster homes during fiscal year 2013 -- 15 more that the agency's approved target. However, the monitors said 53 of those homes had been double counted. Mr. Lake said counting foster homes is more complicated than it sounds, because homes can be approved for various types of care. For example, the same home can be approved as both a foster home and an adoptive home, which can lead to it being mistakenly counted twice, depending upon how data is gathered. "We're not double counting homes on purpose," Mr. Lake said. "Nobody's trying to manipulate the data." Overseers' concerns The overseers expressed concerns that more than a fourth of the 1,744 resource homes that DHS reported as being open and available on June 30 had no children placed in them, even though the state has been keeping children in shelters while complaining of a shortage of available foster homes. Of the 456 foster homes with no children on the last day of June, 171 had not had a child in three months and 28 had not had a placement for more than a year, the report stated. The data raise "serious questions about DHS' foster home practices," as well at the process the agency uses for closing homes that are no longer accepting child placements, the report stated. Overseers said their review of cases also raised concerns that DHS workers have been pushing kinship homes that provide foster care for relatives to also provide foster care or emergency foster care for non-relatives -- even in cases where records indicate the providers had indicated they only wanted to care for relatives. Lowry called the tactic "extremely questionable" and said it can lead to children being bounced around among placements, which she said is harmful. Lowry joined the out-of-state monitors in voicing concern about the agency's high turnover rate and its backlog of 1,833 child welfare investigations. "The situation is quite dangerous to children," Ms. Lowery said, describing Oklahoma's backlog as the biggest she has seen in any state. Overseers said that after some initial success in reducing the number of infants and toddlers in state shelters, the numbers have increased in recent months as the agency has struggled with an increase in the number of children taken into state custody. The overseers did praise DHS for its progress in some areas, including its reorganization of the agency to create a Child Welfare Division and its appointment of a new leadership and management team. Mr. Lake said trying to make child welfare reforms while going through such a drastic overhaul has been a challenge. "In some cases, this is sort of like building a plane while you're flying a plane," Mr. Lake said. "We've made progress in a lot of areas, but the context is, unfortunately, we still feel like we're paddling upstream because of the influx in the number of children in custody. The increased numbers put more pressure on everything else we're trying to do." Mr. Lake said DHS has accelerated its hiring of child welfare workers, but it takes time to get employees trained and out in the field. "We're committed to funding and carrying out every initiative of this plan," Mr. Lake said. PERDUE FARMS: Faces Second Class Action Over "Humane" Claims ------------------------------------------------------------ The Poultry Site reports that the Humane Society of the United States (HSUS) on Oct. 25 announced the filing of a second class action lawsuit against the nation's fourth-largest poultry producer, Perdue Farms, Inc. over the company's alleged false advertising of factory farmed chicken products as "humane". The suit -- filed on behalf of Florida consumers who allegedly purchased Perdue's Harvestland chicken -- alleges that Perdue is deceptively marketing the chicken products as "Humanely Raised" even though the chickens are subject to standard mass-produced industry practices. According to HSUS, those practices include inhumane handling and shackling of live birds, the transport of birds on cramped trucks for long periods of time in extreme temperatures with no food or water, and inhumane slaughter of birds. "Animals in Perdue's factory farms suffer many of the same conditions found in other industrial facilities," said Jonathan Lovvorn, vice president and chief counsel of Animal Protection Litigation for The HSUS. "Perdue has apparently been exploiting the good intentions of its customers and selling them a factory-farmed product dressed up as 'humane'." The complaint allegedly seeks a jury trial and compensation for the class members. It also seeks to end Perdue's use of the "Humanely Raised" claim on Harvestland products. According to HSUS, earlier this year, a federal court in New Jersey rejected Perdue's attempt to have a similar case dismissed, paving the way for that action to proceed. Both lawsuits allege that Perdue's "humanely raised" labels mislead consumers. HSUS reports that public records obtained from USDA -- which Perdue fought to keep hidden from public view -- show that the standards upon which Perdue bases its "Humanely Raised" claim are the voluntary so-called "Animal Welfare Guidelines" of the National Chicken Council -- the trade group for the chicken industry. The suit alleges that those guidelines allow for mistreatment that no reasonable consumer would consider humane. The plaintiffs are being represented in the case by Tycko & Zavareei LLP, Kopelowitz Ostrow Ferguson Weiselberg Keechl and attorneys with The HSUS' Animal Protection Litigation Section. RESER'S FINE: Recalls Salad Products Over Listeria Risk ------------------------------------------------------- Starting date: October 26, 2013 Type of communication: Recall Alert sub-type: Updated Health Hazard Alert Subcategory: Microbiological - Listeria Hazard classification: Class 1 Source of recall: Canadian Food Inspection Agency Recalling firm: Reser's Fine Foods Inc. Distribution: National Extent of the product distribution: Retail CFIA reference number: 8426 The public warning issued on October 24, 2013 has been updated to include additional products and Best Before dates. The Canadian Food Inspection Agency (CFIA) and Reser's Fine Foods Inc. are warning the public not to consume the salad products described below, because they may be contaminated with Listeria monocytogenes. There have been no reported illnesses associated with the consumption of these products. Pictures of the recalled products are available at: http://is.gd/65LUfL The manufacturer, Reser's Fine Foods Inc., Beaverton, Oregon, USA, is voluntarily recalling the affected products from the marketplace. The CFIA is monitoring the effectiveness of the recall. The following products, marked with a Best Before Date followed by a plant identifier code of 20, are affected by this alert: Affected products -- 425 g. Market Pantry Coleslaw with Best Before Date(s) followed by plant identifier code 20 from 2013 OC 10 to 2013 NO 03; -- 454 g. Market Pantry Macaroni Salad with Best Before Date(s) followed by plant identifier code 20 from 2013 OC 20 to 2013 NO 11; -- 454 g. Market Pantry Potato & Egg Salad with Best Before Date(s) followed by plant identifier code 20 from 2013 NO 03 to 2013 NO 17; -- 454 g. Market Pantry Potato Salad with Best Before Date(s) followed by plant identifier code 20 from 2013 OC 20 to 2013 NO 14; -- 454 g. Reser's Fine Foods Creamy Spinach Dip with Best Before Date(s) followed by plant identifier code 20 from 2013 OC 17 to 2013 NO 14; -- 425 g. Reser's Fine Foods Crunchy Cole Slaw with Best Before Date(s) followed by plant identifier code 20 from 2013 OC 10 to 2013 NO 08; -- 1.25 kg. Reser's Fine Foods Crunchy Cole Slaw with Best Before Date(s) followed by plant identifier code 20 from 2013 OC 10 to 2013 NO 08; -- 1.81 kg. Reser's Fine Foods Gourmet Red Potato Salad with Best Before Date(s) followed by plant identifier code 20 from 2013 OC 12 to 2013 NO 15; -- 340 g Reser's Fine Foods Gourmet Red Potato Salad with Best Before Date(s) followed by plant identifier code 20 from 2013 OC 12 to 2013 NO 10; -- 454 g. Reser's Fine Foods Potato Salad with Deviled Egg with Best Before Date(s) followed by plant identifier code 20 from 2013 OC 12 to 2013 NO 15; -- 454 g. Reser's Fine Foods Potato Salad with Egg with Best Before Date(s) followed by plant identifier code 20 from 2013 OC 23 to 2013 NO 26; -- 1.25 kg. Reser's Fine Foods Potato Salad with Egg with Best Before Date(s) followed by plant identifier code 20 from 2013 OC 23 to 2013 NO 26; -- 425 g Reser's Fine Foods Traditional Cole Slaw with Oil & Vinegar with Best Before Date(s) followed by plant identifier code 20 from 2013 OC 10 to 2013 NO 07; -- 1.25 kg. Reser's Fine Foods Cheesy Macaroni Salad with Best Before Date(s) followed by plant identifier code 20 from 2013 OC 20 to 2013 NO 18; -- 454 g. Reser's Fine Foods Cheesy Macaroni Salad with Best Before Date(s) followed by plant identifier code 20 from 2013 OC 20 to 2013 NO 18 -- 454 g. Reser's Fine Foods Ranch Pasta Salad with Bacon with Best Before Date(s) followed by plant identifier code 20 from 2013 OC 11 to 2013 NO 07; -- 454 g. Reser's Fine Foods Potato Salad with Best Before Date(s) followed by plant identifier code 20 from 2013 OC 23 to 2013 NO 21; -- 1.25 kg. Reser's Fine Foods Potato Salad with Best Before Date(s) followed by plant identifier code 20 from 2013 OC 23 to 2013 NO 26; -- 454 g. Reser's Fine Foods Macaroni Salad with Best Before Date(s) followed by plant identifier code 20 from 2013 OC 23 to 2013 NO 26; -- 1.25 kg. Reser's Fine Foods Macaroni Salad with Best Before Date(s) followed by plant identifier code 20 from 2013 OC 23 to 2013 NO 21; -- 454 g. Reser's Fine Foods Homestyle Potato Salad with Best Before Date(s) followed by plant identifier code 20 from 2013 OC 10 to 2013 NO 07; -- 3.63 kg. Reser's Fine Foods Potato Salad* with Best Before Date(s) followed by plant identifier code 20 from 2013 OC 23 to 2013 NO 27. * These affected products were sold in bulk and may have been repacked at retail. Consumers who cannot determine the original product identity are advised to check with their retailer to determine if they have one of the affected products. -- 2.27 kg. Reser's Fine Foods Loaded Baked Potato Salad* with Best Before Date(s) followed by plant identifier code 20 from 2013 OC 08 to 2013 NO 10. * These affected products were sold in bulk and may have been repacked at retail. Consumers who cannot determine the original product identity are advised to check with their retailer to determine if they have one of the affected products. -- 3.18 kg. Reser's Fine Foods Cole Slaw* with Best Before Date(s) followed by plant identifier code 20 from 2013 OC 08 to 2013 NO 10 0 71117 15124 4 * These affected products were sold in bulk and may have been repacked at retail. Consumers who cannot determine the original product identity are advised to check with their retailer to determine if they have one of the affected products. -- 3.63 kg. Reser's Fine Foods Chicken Salad Dressing* with Best Before Date(s) followed by plant identifier code 20 from 2013 OC 24 to 2013 NO 20 * These affected products were sold in bulk and may have been repacked at retail. Consumers who cannot determine the original product identity are advised to check with their retailer to determine if they have one of the affected products. -- 3.63 kg. Reser's Fine Foods Macaroni Salad* with Best Before Date(s) followed by plant identifier code 20 from 2013 OC 25 to 2013 NO 20. * These affected products were sold in bulk and may have been repacked at retail. Consumers who cannot determine the original product identity are advised to check with their retailer to determine if they have one of the affected products. -- 3.63 kg. Reser's Fine Foods Four Bean Salad* with Best Before Date(s) followed by plant identifier code 20 from 2013 NO 24 to 2013 DE 15. * These affected products were sold in bulk and may have been repacked at retail. Consumers who cannot determine the original product identity are advised to check with their retailer to determine if they have one of the affected products. -- 3.63 kg. Reser's Fine Foods Diced Potato with Egg Salad* with Best Before Date(s) followed by plant identifier code 20 from 2013 OC 23 to 2013 NO 26. * These affected products were sold in bulk and may have been repacked at retail. Consumers who cannot determine the original product identity are advised to check with their retailer to determine if they have one of the affected products. -- 2.27 kg. Stonemill Kitchens Red Potato Salad with Dijon with Best Before Date(s) followed by plant identifier code 20 from 2013 OC 15 to 2013 NO 18 RESER'S FINE: Recalls Additional Chicken, Ham and Beef Products --------------------------------------------------------------- Reser's Fine Foods, a Topeka, Kan. establishment, is expanding its recall of chicken, ham and beef products to include all products produced between Sept. 5 and Oct. 9, 2013. This is in addition to the 22,800 pounds of product recalled on Oct. 22, 2013. The products are being recalled due to possible contamination with Listeria monocytogenes, the U.S. Department of Agriculture's Food Safety and Inspection Service (FSIS) announced. The company announced that these products are being recalled in conjunction with other foods regulated by the Food and Drug Administration (FDA). A full list of products being recalled can be found on FDA's website here. Products regulated by FSIS bear the establishment number "EST. 13520" or "P-13520" inside the USDA mark of inspection. Only products made at this Topeka, KS facility, also designated by the plant code #20 after the code date, are affected by this recall. No other Reser's facilities are involved in this action. Products subject to this expansion of the recall include the following: -- Block and Barrel Imperial Gourmet White Meat Chicken Salad with use by date of 10/5/13 - 11/17/13; -- Chef Solutions Cranberry Pecan White Meat Chicken Salad with use by date of 10/14/13 - 11/16/13; -- Dillons Ham Salad with use by date of 10/15/13 - 11/16/13; -- Cobble Street Market Chicken Salad with use by date of 10/12/13 - 11/15/13; -- Kroger BBQ Beans With Beef & Sauce with use by date of 10/17/13 - 11/14/13; -- Kroger BBQ Beans With Beef & Sauce with use by date of 10/20/13 - 11/12/13; -- Millers Bar-B-Que Beans with Beef with use by date of 10/16/13 - 11/18/13; -- Millers Bar-B-Que Beans with Beef with use by date of 10/20/13 - 11/19/13; -- Mrs. Weaver's Ham Salad with use by date of 10/18/13 - 11/14/13; -- Mrs. Weaver's Chicken Salad with use by date of 10/22/13 - 11/19/13; -- Reser's Fine Foods Chicken Salad with use by date of 9/19/13 - 11/12/13; -- Reser's Fine Foods Gourmet White Chicken Salad with use by date of 10/7/13 - 11/9/13; -- Reser's Fine Foods Smoked Chicken Salad with use by date of 10/8/13 - 11/9/13; -- Reser's Fine Foods White Meat Chicken Salad with Cranberries & Pecans with use by date of 10/11/13 - 11/13/13; -- Reser's Fine Foods White Meat Chicken Salad with use by date of 10/11/13 - 11/13/13; -- Reser's Fine Foods Chicken Salad with use by date of 10/12/13 - 11/15/13; -- Reser's Fine Foods White Chicken Salad Artificially Whitened with use by date of 10/15/13 - 11/17/13; -- Reser's Fine Foods Carolina BBQ Beans with Meat with use by date of 10/17/13 - 11/19/13; -- Reser's Fine Foods Classic Chicken Salad with use by date of 10/19/13 - 11/16/13; -- Reser's Fine Foods Shredded White Chicken Salad with use by date of 10/20/13 - 11/22/13; -- Reser's Fine Foods Ham Salad Supreme with use by date of 10/21/13 - 11/23/13; -- Reser's Fine Foods Ham Salad with use by date of 10/21/13 - 11/22/13; -- Reser's Fine Foods Ham Salad with use by date of 10/28/13 - 11/26/13; -- Reser's Fine Foods White Meat Chicken Salad with Rotisserie Seasoning with use by date of 11/3/2013 -- Sav-A-Lot Ham Salad with use by date of 10/16/13 - 11/17/13; -- Stonemill Kitchens Loaded Potato Salad with Bacon with use by date of 10/11/13 - 11/12/13; -- Stonemill Kitchens Low Fat White Chicken Salad with Agave and Cranberries with use by date of 11/6/2013; -- Stonemill Kitchens Cranberry Pecan White Chicken Salad with use by date of 11/7/2013; -- Essential Everyday White Meat Chicken Salad with use by date of 10/11/13 - 11/8/13; -- Classic Chicken Salad with use by date of 10/11/13 - 11/13/13; -- Cross Valley Farms Chicken Salad with use by date of 10/10/13 - 11/13/13; -- Cross Valley Farms Ham Salad with use by date of 10/25/13 - 11/23/13; -- CHICKEN MKTSDE SS with use by date of 10/11/13 - 11/12/13; -- Walmart Deli Chicken Salad with use by date of 10/11/13 - 11/8/13; -- Walmart Deli Ham Salad with use by date of 10/18/13 - 11/19/13; -- Yoder's Ham Salad with use by date of 10/17/13 - 11/17/13 The products were distributed to retailers and distributors nationwide. The problem was discovered through microbiological testing by the Canadian Food Inspection Agency. A traceback investigation and follow-up testing by FDA at the facility determined there was potential cross contamination of products with Listeria monocytogenes from product contact surfaces. Upon further review, the company determined that products produced on additional dates should be recalled. FSIS and the company have not received reports of illnesses due to consumption of these products. Anyone concerned about an illness should contact a healthcare provider. FSIS routinely conducts recall effectiveness checks to verify recalling firms notify their customers of the recall and that steps are taken to make certain that the product is no longer available to consumers. When available, the retail distribution list(s) will be posted on the FSIS website at: http://www.fsis.usda.gov/recalls Consumers and media with questions about the recall should contact the Reser's Fine Foods Consumer Hotline at 1-888-257-7913 (8 a.m. - 8 p.m. Eastern Time). Consumers with food safety questions can "Ask Karen," the FSIS virtual representative available 24 hours a day at AskKaren.gov or via smartphone at m.askkaren.gov. "Ask Karen" live chat services are available Monday through Friday from 10 a.m. to 4 p.m. ET. The toll-free USDA Meat and Poultry Hotline 1-888-MPHotline (1-888-674-6854) is available in English and Spanish and can be reached from l0 a.m. to 4 p.m. (Eastern Time) Monday through Friday. Recorded food safety messages are available 24 hours a day. To report a problem with a meat, poultry or processed egg product to FSIS at any time, visit: http://www.fsis.usda.gov/reportproblem. RESER'S FINE FOODS: Expands Recall of Ready-to-Eat Foods -------------------------------------------------------- JoNel Aleccia, writing for NBC News, reports that Reser's Fine Foods Inc. of Beaverton, Ore., has expanded a recall of refrigerated ready-to-eat foods including potato salad, cole slaw and salsa distributed in the U.S. and Canada because they may be contaminated with listeria, which can cause serious and sometimes fatal infections. Earlier, the firm recalled 109,000 cases of refrigerated foods and 22,800 pounds of chicken, ham and beef products produced at the company's Topeka, Kan., plant. In a recall notice issued earlier by the Food and Drug Administration, the firm had said there were no reports of illness tied to the recalls. On Oct. 26, the firm issued an expanded recall notice and said there were no "confirmed" reports of illness. That means consumers should check their refrigerators for any of the products sold widely at stores including Walmart, Safeway and Target. In healthy people, infections from listeria bacteria can cause symptoms such as high fever, severe headache, stiffness, abdominal pain and nausea. In children, the elderly or those with compromised immune systems, the infections can cause severe illness. They can also cause miscarriages and stillbirths in pregnant women and severe infections in newborns. The recalled products were manufactured at the Topeka salad manufacturing facility, the firm said. No other Reser's Fine Foods, Inc. manufacturing facilities are involved in this recall. Representatives for Reser's would not say what the volume of product was covered by the expanded recall or elaborate on the possible number or type of illnesses reported in connection with the original or expanded recalls. A company representative said consumers should check the list of potentially affected food products. The problem was discovered through microbiological testing by the Canadian Food Inspection Agency. A traceback investigation and follow-up testing by the FDA determined that there was potential cross-contamination of products with Listeria monocytogenes from contaminated surfaces, according to the U.S. Department of Agriculture Food Safety and Inspection Service. Consumers who purchased the product may take it back to the store for a refund or discard it. For more information please contact Reser's Fine Foods Consumer Hotline 1-888-257-7913 between 8:00 a.m. and 8:00 p.m. EST. Consumers concerned about illness should contact a healthcare provider. RHYTHM & HUES: Gets Nod for $1 Million Workers Deal --------------------------------------------------- Law360 reported that a Los Angeles federal bankruptcy judge on Oct. 23 approved a $1 million settlement for a class of workers that claims the now-bankrupt visual effects studio behind "Life of Pi" breached the Workers Adjustment and Retraining Notification Act when it didn't pay them after the company shut down. According to the report, the Oscar-winning Rhythm & Hues Inc. agreed to pay at least $1 million to the workers out of its bankruptcy estate, ending six months of adversary proceedings. Rhythm and Hues, Inc., aka Rhythm and Hues Studios Inc., filed its Chapter 11 petition in Los Angeles bankruptcy court on Feb. 13, 2013, estimating assets ranging from $10 million to $50 million and liabilities ranging from $50 million to $100 million. Judge Neil W. Bason oversees the case. R&H provided visual effects and animation for more than 150 feature films and has received Academy Awards for Babe and the Golden Compass, an Academy Award nomination for The Chronicles of Narnia and Life of Pi. R&H owned a 135,000 square-foot facility in El Segundo, California, and had more than 460 employees. Key clients Universal City Studios LLC and Twentieth Century Fox, a division of Twentieth Century Fox Film Corporation, provided DIP financing. They are represented by Jones Day's Richard L. Wynne, Esq., and Lori Sinanyan, Esq. At the end of March 2013, the Debtor sold the business to 34x118 Holdings Inc., an affiliate of competitor Prana Studios Inc. The buyer agreed to pay $1.2 million cash, take over payment of the loan financing the Chapter 11 effort, pay defaults on contracts going along with the sale, and assume liabilities to employees for as much as $5 million. On May 24, 2013, the Debtor obtained Court permission to change its corporate name to AWTR Liquidation, Inc. SSM HEALTH CARE: Judge Approves $3.5MM Class Action Settlement -------------------------------------------------------------- Ben James, writing for Law360, reports that a Wisconsin federal judge approved a $3.5 million settlement on Oct. 23, in a class and collective action brought against SSM Health Care of Wisconsin Inc. on behalf of approximately 1,400 nurses who allegedly had meal periods automatically deducted from their pay despite their having to remain on duty. U.S. District Judge William M. Conley gave the pact final approval and also signed off on a $1.16 million fees and costs award for plaintiffs' counsel Hawks Quindel SC and Habush Habush & Rottier SC, wrapping up the case a little more than two years after it was filed. "The court held a fairness hearing at which only the parties' counsel appeared. Based on their representations, the parties' written submissions, the lack of any objections, and the entire record in this case, the court concludes that the parties' settlement is fair, reasonable and adequate," Judge Conley said. The case was lodged in August 2011 by Roberta Fosbinder-Bittorf, who worked at SSM-operated St. Mary's Hospital from 2006 through July 2011. She said that she was denied wages for on-duty meal periods pursuant to an illegal pay policy. Her January 2012 amended complaint leveled minimum wage and overtime claims and proposed a Fair Labor Standards Act collective class and a Wisconsin state law class comprised of SSM-employed nurses at St. Mary's. The court granted Ms. Fosbinder-Bittorf's bid for conditional certification in March. Judge Conley certified the state-law class for settlement purposes on Oct. 23. The Oct. 23 order also approved a $15,000 enhancement payment for Ms. Fosbinder-Bittorf and 5,000 payouts to opt-ins Carolyn Mannina, Trisha Bratten and JoLynn Meyers. In an unopposed motion for final approval of the pact filed on Oct. 15, the plaintiffs said that none of the 1,416 class members had objected to the settlement and that only 27 had opted out. All but $60,301.45 of the settlement fund -- more than 98 percent -- had been claimed and would be paid out, the motion said. Hawks Quindel's William Parsons, an attorney for the plaintiffs, said on Oct. 24 that he was pleased with the settlement and that the average recovery per nurse was $1,625. There have been numerous other wage and hour suits over automatic deductions to hospital workers pay for meal breaks, and this deal appears to rank at or near the top of the heap in terms of class recovery, he added. "We took a pretty good look at it, and we think this is the largest recovery to date," Parsons said. An attorney for SSM could not be immediately reached for comment. The defendant, which is part of the St. Louis, Mo.-based Catholic nonprofit health system SSM Health Care, owns and operates three hospitals and two skilled nursing facilities in the Badger State. The plaintiffs are represented by William Parsons -- wparsons@hq-law.com -- David Zoeller -- dzoeller@hq-law.com -- Danielle Schroder -- dschroder@hq-law.com -- Summer Murshid -- smurshid@hq-law.com -- and Larry Johnson -- ljohnson@hq-law.com -- of Hawks Quindel SC; and Daniel Rottier -- rottier@habush.com -- Robert Habush -- rhabush@habush.com -- and Jason Knutson and Habush Habush & Rottier SC. SSM is represented by Kyle Petersen of Seyfarth Shaw LLP. The case is Fosbinder-Bittorf et al. v. SSM Health Care of Wisconsin Inc., case number 3:11-cv-00592, in the U.S. District Court for the Western District of Wisconsin. STONEBRIDGE LIFE: Faces Setback in Fight Against TCPA Class Action ------------------------------------------------------------------ Andrew Scurria, writing for Law360, reports that Stonebridge Life Insurance Co. faced a possible setback on Oct. 23 in its fight against a California text-spamming class action when its onetime marketing firm, a co-defendant, flipped and agreed to finger Stonebridge as a culprit. Trifecta Marketing Group LLC, which allegedly sent tens of thousands of unsolicited text messages to generate customer leads for Stonebridge, will escape the Telephone Consumer Protection Act litigation in exchange for helping a certified class of message recipients make their case, according to settlement documents entered on Oct. 23. Under the deal, Trifecta must "cooperate fully" with class counsel and provide documentary evidence and witness testimony pinning the blame on Stonebridge. The evidence will purportedly indicate that Stonebridge authorized Trifecta's outbound text messaging activities and disprove the insurer's long-standing position that it was unaware of any TCPA violations. "As Trifecta has confirmed through the settlement, Stonebridge's position in this case that they had 'no idea' text messages were being used to generate leads for its products is not grounded in fact," the plaintiffs' motion in support of the agreement said. "Instead, Stonebridge continued to accept leads generated from Trifecta with the full knowledge that Trifecta was using outbound text messaging to generate these leads." The evidence will corroborate documents Stonebridge itself was forced to cough up at a July discovery hearing indicating it had the chance to stop Trifecta's text-spamming but chose to look the other way, according to the filing. The plaintiffs purportedly consented to the deal after determining that Trifecta was essentially broke and had no insurance coverage that could pay class members. "Given Trifecta's financial insolubility . . . complete cooperation in providing documents and testimony to plaintiff is perhaps the most valuable benefit it could offer the class," the filing said. Lead plaintiff Jennifer Lee mounted the suit in 2011, contending she had received an unsolicited text message encouraging her to call a toll-free number and promising a free $100 Wal-Mart gift card if she did. The number listed in the text allegedly connected customers with a Trifecta call center operator who would offer a number of products and services, including the chance to enter a sweepstakes sponsored by Stonebridge, but no gift card. If a consumer showed any interest at all in the products, their number was transferred to Stonebridge so the insurer could reach out to the caller directly, according to the suit. As Ms. Lee argued, Trifecta was under contract to push Stonebridge insurance products, but Stonebridge inserted itself into the process by drafting the call-center scripts, obtaining access to the calls and controlling when its offers would be presented to those who called the text-message number back. Trifecta and Stonebridge also allegedly consulted on maximizing the number of callbacks and discussed how texts should be crafted, as well as the possibility of using so-called short messaging service traffic from third parties that could drive additional callbacks. But no one at Stonebridge ever advised Trifecta that using unsolicited texting to generate leads was forbidden under the TCPA, according to the complaint. Trifecta later allegedly built its own in-house messaging platform and sent 60,000 individuals short messages during a four-day span in late 2010 that are the subject of Lee's suit. U.S. District Judge Richard Seebord granted class certification to recipients of those messages in February. In addition to turning on Stonebridge, Trifecta agreed under Wednesday's settlement to swear off outbound text messages for the next four years and submit to an injunction. Representatives for the parties were not immediately available for comment on Oct. 24. The putative class is represented by Sean Reis -- sreis@edelson.com -- Ryan D. Andrews -- randrews@edelson.com -- and John C. Ochoa -- jochoa@edelson.com -- of Edelson LLC. Stonebridge is represented by Dan Marmalefsky -- dmarmalefsky@mofo.com -- and Tiffany Cheung -- tcheung@mofo.com -- of Morrison & Foerster LLP. Trifecta is represented by Stuart D. Kirchick of the Law Offices of Stuart D. Kirchick and Alexander E. Sklavos of the Law Offices of Alexander E. Sklavos PC. The case is Lee v. Stonebridge Life Insurance Co., case number 3:11-cv-00043, in the U.S. District Court for the Northern District of California. STRATASYS INC: Settles Stockholder Suit --------------------------------------- In June and July 2012, putative class action lawsuits were filed in the United States District Court for the District of Minnesota in Hennepin County and in the Delaware Court of Chancery challenging the transactions contemplated by the Agreement and Plan of Merger, dated as of April 13, 2012, among Stratasys, Inc., Objet Ltd., which is now Stratasys Ltd., Seurat Holdings Inc., and Oaktree Merger Inc. Under the Merger Agreement, Merger Sub agreed to merge with Stratasys, Inc., and Stratasys, Inc. would become the surviving corporation of the Merger and our indirect, wholly owned subsidiary. The plaintiffs in these lawsuits are purported holders of the common stock of Stratasys, Inc. and are purportedly acting on behalf of a putative class of Stratasys Stockholders. These suits name as defendants Stratasys, Inc., the former members of its Board of Directors, Holdco, Merger Sub, and in certain instances Objet. As disclosed in the Stratasys, Inc. Current Report on Form 8-K dated September 6, 2012, Stratasys, Inc. and the other defendants entered into a Memorandum of Understanding with the parties to the actions pending in the Chancery Court and the Minnesota Court, pursuant to which Stratasys, Inc. and such other parties agreed in principle, and subject to certain conditions, to settle those stockholder lawsuits. Pursuant to the terms of the MOU, the parties agreed, after arm's-length negotiations, that Stratasys, Inc. would file the September 6 Form 8-K amending and supplementing the applicable disclosure in our joint proxy statement/prospectus filed with the U.S. Securities and Exchange Commission in connection with the Merger. Plaintiffs' counsel also undertook and conducted confirmatory discovery as provided in the MOU. The Merger was approved by Stratasys, Inc. stockholders on September 14, 2012, and was consummated on December 1, 2012, which resulted in Stratasys, Inc. becoming our indirect, wholly owned subsidiary. In connection with the Merger, we changed our name from Objet Ltd. to Stratasys Ltd. On October 3, 2013, Stratasys, Inc. and the other defendants entered into a Stipulation and Agreement of Compromise, Settlement and Release with the plaintiffs in the two stockholder lawsuits. Under the terms of the Settlement Agreement, which is subject to approval by the Chancery Court, the plaintiffs agreed to a dismissal of the Delaware Action with prejudice, to voluntarily dismiss the Minnesota Action with prejudice and without costs, and to release all claims against the defendants, subject to certain conditions. The defendants agreed not to oppose an award of attorneys' fees, costs and expenses in an amount not to exceed $450,000. However, court approval of the settlement is not conditioned on court approval of such fees, costs and expenses. STRATEGIC REALTY: Faces Securities Class Action Over IPO -------------------------------------------------------- Girard Gibbs LLP and Peiffer Rosca Abdullah & Carr LLC on Oct. 23 announced that a class action has been commenced in the United States District Court for the Northern District of California on behalf of persons and entities who purchased or otherwise acquired Strategic Realty Trust, Inc.'s common stock in or traceable to the Company's initial public offering ("IPO") between September 23, 2010 and February 7, 2013, pursuant to a registration statement and prospectus filed with the U.S. Securities and Exchange Commission. Prior to August 23, 2013, the Company was known as TNP Strategic Retail Trust, Inc. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from October 23, 2013. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact Girard Gibbs attorney John Kehoe at (866) 981-4800 or (415) 981-4800, or via e-mail at jak@girardgibbs.com or Peiffer Rosca attorney Alan Rosca at (888) 998-0520, or via email at arosca@praclawfirm.com The complaint alleges that the Company, its former affiliates Thompson National Properties, LLC, TNP Strategic Retail Advisor, LLC and TNP Securities, LLC, and certain of the Company's current or former officers and directors violated Sections 11, 12(a)(2) and/or 15 of the Securities Act of 1933. Among other things, the complaint alleges that the offering materials provided to investors during the IPO contained material misrepresentations and omissions about the financial health of the Company and its affiliates and about the performance of earlier real estate programs sponsored by the Company's affiliates. On January 16, 2013, the Company revealed that it had defaulted on a $29 million loan that its CEO and Chairman had personally and unconditionally guaranteed and on its $45 million revolving credit facility. Then, on August 28, 2013, the Company issued a press release disclosing that a board-level "Special Committee" had been formed a year earlier "for the protection of shareholders" after one of the Company's affiliates was found to be paying fees to itself that had not been earned; and that its affiliates had defaulted on certain corporate debt obligations and had sustained significant corporate losses. In the wake of this disclosure, the Company replaced its CEO and Chairman and severed its relationship with its affiliates. If you are a member of this class, you can view a copy of the filed complaint or join this class action online at http://www.girardgibbs.com/strategic-realty-trust-investor- lawsuit/ 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. Girard Gibbs LLP -- http://www.GirardGibbs.com-- is a law firm that represents individual and institutional investors in securities fraud class actions and litigation to correct abusive corporate governance practices, breaches of fiduciary duty and proxy violations. Based in Louisiana with an office in Ohio, Peiffer Rosca -- http://www.praclawfirm.com/-- deals with complex and difficult legal and business matters, and has developed expertise in a variety of specialized areas of law to provide innovative solutions to its clients' various needs. TAYLOR FARMS: Recalls Broccoli Salad Kits ----------------------------------------- Taylor Farms, a Jessup, Md. establishment, is recalling approximately 5,084 pounds of broccoli salad kit products. The kits contain salad dressing in packets that are the subject of a Food and Drug Administration (FDA) recall due to concerns about possible Listeria monocytogenes contamination, the U.S. Department of Agriculture's Food Safety and Inspection Service (FSIS) announced. The salad kits were shipped to distributors and retail locations (delis) for consumer purchase in Connecticut, Delaware, Maryland, Massachusetts, New Jersey, New York and Vermont. The following products are subject to recall: -- 6.06-lb. boxes labeled "TAYLOR FARMS BROCCOLI CRUNCH WITH BACON AND DRESSING" with the case code 310151, produced on Oct. 21 and Oct. 22, 2013. -- 12.13-lb. boxes labeled "TAYLOR FARMS BROCCOLI CRUNCH WITH BACON AND DRESSING" with the case code 310153, produced Oct. 21 through Oct. 23, 2013. Case labels bear the establishment number "EST. 34522" inside the USDA mark of inspection. Retail consumers and the general public will not typically see the boxes and labels, because the product is typically unboxed by retailers (such as deli counters and restaurants) and the kit used to make salads for retail sale. The boxes and labels would be more likely to be seen by distributors and retailers. Taylor Farms informed FSIS that salad dressing subject to an FDA recall was contained in the salad kits produced on the dates listed above. FSIS, FDA and the company have received no reports of illnesses associated with consumption of these products. Anyone concerned about an illness should contact a healthcare provider. Consumption of food contaminated with L. monocytogenes can cause listeriosis, a serious infection that primarily affects older adults, persons with weakened immune systems, and pregnant women and their newborns. Less commonly, persons outside these risk groups are affected. Listeriosis can cause fever, muscle aches, headache, stiff neck, confusion, loss of balance and convulsions sometimes preceded by diarrhea or other gastrointestinal symptoms. An invasive infection spreads beyond the gastrointestinal tract. In pregnant women, the infection can cause miscarriages, stillbirths, premature delivery or life-threatening infection of the newborn. In addition, serious and sometimes fatal infections in older adults and persons with weakened immune systems. Listeriosis is treated with antibiotics. Persons in the higher-risk categories who experience flu-like symptoms within two months after eating contaminated food should seek medical care and tell the health care provider about eating the contaminated food. FSIS routinely conducts recall effectiveness checks to verify recalling firms notify their customers of the recall and that steps are taken to make certain that the product is no longer available to consumers. When available, the retail distribution list(s) will be posted on the FSIS website at http://www.fsis.usda.gov/recalls Media with questions regarding the recall can contact Garth Borman of Taylor Farms, at 209-830-3103. Consumers with questions regarding the recall can contact Taylor Farms Customer Service at 866-508-7048. Consumers with food safety questions can "Ask Karen," the FSIS virtual representative available 24 hours a day at AskKaren.gov. The toll-free USDA Meat and Poultry Hotline 1-888-MPHotline (1-888-674-6854) is available in English and Spanish and can be reached from l0 a.m. to 4 p.m. (Eastern Time) Monday through Friday. Recorded food safety messages are available 24 hours a day. The online Electronic Consumer Complaint Monitoring System can be accessed 24 hours a day at: http://www.fsis.usda.gov/reportproblem THOMAS JEFFERSON SCHOOL: Judge Denies Class Certification --------------------------------------------------------- Karen Sloan, writing for The National Law Journal, reports that Alaburda v. Thomas Jefferson School of Law was the class action that spawned a wave of suits brought by alumni claiming their law schools duped them with misleading post-graduate employment statistics. But the case, filed in 2011 by 2008 graduate Anna Alaburda, was dealt a major blow last week when a San Diego County Superior Court judge denied class certification. The four plaintiffs had sought to certify a class of all Thomas Jefferson law graduates from 2006 to 2013 who live in California and consulted U.S. News & World Report's law school rankings when deciding where to enroll. But Judge Joel Pressman ruled that there was no objective and reliable way to determine who turned to U.S. News. "In this case, determining membership rests exclusively on self-authentication, which seems in this case to be unreliable," he wrote in his order on Oct. 21. Moreover, the Thomas Jefferson graduates chose the law school for a variety of reasons and don't constitute a "well-defined community of interest," he added. "Given these vastly different reasons for attending TJSL and the differing weight placed upon the U.S. News & World Report article, there are significant individual issues with respect to reliance and causation," Judge Pressman wrote. Given that the plaintiffs had different employment outcomes, they should pursue individual actions rather than a class action, he ruled. Attorney Brian Procel, representing the Thomas Jefferson grads, did not respond to calls for comment on Oct. 24. Dean Thomas Guernsey, meanwhile, said administrators were pleased with the outcome. "The ruling supports our unwavering position that there never was any basis for a class action lawsuit of this nature against the Thomas Jefferson School of Law," he said in a prepared statement. The ruling raised questions about four similar suits pending against California law schools. Another 15 fraud suits filed against law schools across the country over the past two years have met little success. Cases in New York, Illinois and Michigan have since been dismissed, although the New Jersey case against the Widener University School of Law survived an initial challenge. But California and its more liberal state consumer protection laws had been a bright spot for plaintiffs. Cases against Thomas Jefferson; Golden Gate University School of Law; and the University of San Francisco School of Law all survived initial motions to dismiss. Attorney Jesse Strauss, who represents the plaintiffs in the Golden Gate and San Francisco cases, said Judge Pressman's ruling was little cause for concern. "These cases are very unpredictable and there has been no uniformity among the courts in how they address them," Mr. Strauss said. "While I would have liked the certification motion to be granted, I don't think the denial will have much impact as it will likely be up on appeal while the motions in my cases are determined." TOYOTA MOTOR: Settles Sudden-Acceleration Case for $3 Million ------------------------------------------------------------- Amanda Bronstad, writing for The National Law Journal, reports that Toyota Motor Corp. has agreed to settle allegations of sudden acceleration defects following a $3 million verdict in a case in which a jury that was scheduled to determine punitive damages today. On Oct. 24, Toyota lost the second major verdict over sudden acceleration defects when an Oklahoma state jury found in favor of an injured driver and the family of a passenger who was killed when their 2005 Camry accelerated at a highway exit ramp. The jury gave $1.5 million to each plaintiff. The panel was poised to take up punitive damages but Toyota settled the case before that. The terms were confidential. "While we strongly disagree with the verdict, we are satisfied that the parties reached a mutually acceptable agreement to settle this case," Toyota spokeswoman Carly Schaffner wrote in an emailed statement. "We remain committed to providing our customers with safe and reliable vehicles, and we will continue to defend our products vigorously at trial in other legal venues." The case, in Oklahoma County, Okla., District Court, was the first to present evidence that defects in the electronic throttle control system were responsible for sudden acceleration in Toyota vehicles. Beasley, Allen, Crow, Methvin, Portis & Miles of Montgomery, Ala., was the lead plaintiffs' team. "We are fully convinced that Toyota's conduct from the time the electronic throttle control system (ETCS) was designed has been shameful," Beasley Allen shareholder J. Cole Portis -- cole.portis@beasleyallen.com -- said in a prepared statement. "We appreciate that the jury had the courage to let Toyota and the public know that Toyota was reckless. Hopefully, Toyota will recall all of their questionable vehicles and install a computer that will be safe." Mr. Portis, who heads the firm's product liability and personal injury section, told The National Law Journal that the plaintiffs' team had sought between $3 million to $6 million for the driver and $5 million to $8 million for the family of the deceased passenger. Under Oklahoma law, punitive damages would have been capped at $3 million -- the amount of the compensatory damage award, he said. But founding shareholder Jere Beasley -- jere.beasley@beasleyallen.com -- said jurors, unaware of that statute, had been prepared to grant at least $15 million in punitive damages. His team met with jurors this morning. "They saw it as a monumental case, a landmark case, and one that would have an effect on Toyota going down the road in the future," he said. "Their intent was to come back this morning and award a very large punitive award." A jury in Los Angeles found on October 10 that Toyota's failure to install a brake override system did not contribute to an accident that killed Noriko Uno in 2009. That jury issued a $10 million verdict against the driver of another vehicle that hit Uno's 2006 Camry, which accelerated down a residential street and into a tree. The Oklahoma case was filed by Jean Bookout, who suffered internal bleeding and a broken ankle in the crash six years ago. Her friend, Barbara Schwartz, who was in the front seat, was killed. Trial began earlier this month. The case is an outlier in that it is not part of a coordinated proceeding, and lawyers have not selected it as a bellwether trial, defined as one whose outcome could guide the resolution of other cases against Toyota. But the trial was the second significant one against Toyota this year. Toyota faces a third trial -- the first bellwether in the multidistrict litigation pending in federal court in Santa Ana, Calif. -- on November 5. VECTOR GROUP: Enters Into Settlement on Engle Tobacco Litigation ---------------------------------------------------------------- Vector Group Ltd. On Oct. 23 disclosed that the Company and its Liggett Group tobacco subsidiary have reached a comprehensive settlement resolving substantially all of the individual Engle progeny tobacco litigation cases pending in Florida. Under the settlement, which does not require court approval, more than 4,900 of the approximately 5,300 individual Engle plaintiffs will be dismissing their claims against Vector Group and Liggett. The Company expects to incur an after-tax charge of $53 million in the third quarter of 2013 related to the settlement agreement. Pursuant to the terms of the agreement, Liggett will pay a total of $110 million (or a present value, net of income taxes, of $53 million), with approximately $61 million ($38 million, net of income taxes) to be paid in a lump sum, and the balance of approximately $49 million (or a present value, net of income taxes, of $15 million) to be paid over 15 years. The settlement is expected to be finalized within 90 days and is contingent upon delivery of the required settlement documents by plaintiffs' attorneys. Bennett S. LeBow, Chairman of Vector Group's Board of Directors, said, "We are pleased to reach this landmark settlement, which prudently resolves substantially all of the Engle progeny cases pending against us. The Engle progeny cases have been the biggest litigation overhang on our company in the last decade, and this settlement substantially reduces the ongoing litigation risks, as well as related legal fees and expenses, of these cases." As background, the Engle litigation was originally filed against Liggett Group and other cigarette manufacturers as a class action in Miami-Dade County, Florida in May 1994. The class consisted of all Florida residents who, by November 21, 1996, ". . . have suffered, presently suffer or have died from diseases and medical conditions caused by their addiction to cigarette smoking." In July 2006, after a multi-year trial, the Florida Supreme Court decertified the class action, but determined that certain jury findings from the class trial could be used in individual Engle progeny cases, including jury findings that smoking causes lung cancer, among other diseases, that nicotine in cigarettes is addictive, and that the cigarette companies concealed material information concerning the health effects or addictive nature of smoking. To date, the U.S. Supreme Court has declined to accept any appeals by Liggett and other tobacco companies of adverse verdicts in the Engle progeny cases. Vector Group -- http://www.VectorGroupLtd.com-- is a holding company that indirectly owns Liggett Group LLC and Vector Tobacco Inc. and directly owns New Valley LLC. VERGER BELLIVEAU: Recalls Sweet Apple Cider Products ---------------------------------------------------- Starting date: October 25, 2013 Type of communication: Recall Alert sub-type: Notification Subcategory: Chemical Hazard classification: Class 3 Source of recall: Canadian Food Inspection Agency Recalling firm: Verger Belliveau Orchard Distribution: New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and Labrador Extent of the product distribution: Retail CFIA reference number: 8415 Affected products: -- 375 ml. Verger Belliveau Orchard Sweet Apple Cider with Best Before dates from NO 30 13 to DE 20 13, inclusive; -- 1 L. Verger Belliveau Orchard Sweet Apple Cider with Best Before dates from NO 30 13 to DE 20 13; -- 2 L. Verger Belliveau Orchard Sweet Apple Cider with Best Before dates from NO 30 13 to DE 20 13; and -- 4 L. Verger Belliveau Orchard Sweet Apple Cider with Best Before dates from NO 30 13 to DE 20 13 * FDA Asks Pet Owners, Vets to Send Jerky Treat Samples, Info ------------------------------------------------------------- Natalie DiBlasio, Kim Painter and Calum MacLeod, writing for USA TODAY, report that the Food and Drug Administration is asking pet owners and veterinarians to help solve a mystery: Why have jerky treats coming mostly from China sickened more than 3,600 dogs and cats and killed at least 580 of them since 2007? The number of illnesses and deaths -- the vast majority of which have affected dogs -- has risen since January. "Much like us humans, these pets ought to be able to eat their food and not get sick from it," says Michael Blackwell, president of the Humane Society University. Mr. Blackwell says there is little the consumer can do. "It you are dealing with a contaminant or an adulterant, it's not going to show up on the label." The agency is not issuing a recall or naming brands of jerky treats. It says most have been made in China, but notes that manufacturers are not required to list the country of origin for ingredients on pet food labels. There was no comment on the allegations in Chinese media on Oct. 17. Poor food safety remains a major problem in China despite numerous recently publicized crackdowns on factories. Worries about food safety regularly tops surveys here of people's most pressing concerns, as some manufacturers continue to break the law by using fake, low-quality or toxic ingredients to boost profit margins. The FDA, in partnership with the USDA, makes sure that the food that is fed to animals in America is a safe and high-quality product. However, just as with human food, the FDA handles pet food complaints but doesn't pre-emptively study every product brought into the U.S. The FDA now needs details on more cases and more blood, tissue and urine samples from affected pets, according to an update posted on Oct. 22. The FDA will cover the cost of the tests to get to the bottom of the outbreak. Official Bernadette Dunham called the wave of pet illnesses "one of the most elusive and mysterious outbreaks we've encountered." The FDA says several jerky pet treats were removed from the market in January after testing found they contained "up to six drugs." The agency says it's unlikely the drugs caused the illnesses, but that the rate of illnesses dropped after that, probably because fewer of the products were available. The update says consumers should "be cautious about providing jerky treats" to pets. "If you do provide them and your pet becomes sick, stop the treats immediately, consider seeing your veterinarian and save any remaining treats and the packaging for possible testing." Tina Wismer, medical director of the ASPCA Animal Poison Control Center, says that this outbreak is different than those in the past because of how long it has lasted. "The fact that this has gone on for an extended period of time is different. In the past, all of the contaminated food has gone out at once, they figure out what it is, and there is a recall," Ms. Wismer says. "The earliest cases in this were reported years ago." What the pets have in common: They became ill, usually within hours, after consuming treats sold as jerky tenders or strips. The treats are made of chicken, duck, sweet potatoes or dried fruit. Typical symptoms include decreased appetite and activity, vomiting, diarrhea, increased water consumption and increased urination. Some affected pets suffer kidney failure. Dunham directs the FDA's Center for Veterinary Medicine, which says it has already conducted 1,200 tests and visited jerky manufacturers in China. "Americans value their pets as family members," says KC Theisen, director of pet care issues for the Humane Society of the United States. "An obvious answer is not jumping off the page. The FDA needs more data and more information, so they are turning to the public." Pet ownership has boomed in the past decade in China, a nation better known worldwide for its citizens' delight in eating all manner of animals. China's economic development has spurred social changes too, such as growing interest in keeping pets for companionship. The Chinese government has been faced with several scandals involving food for people, but pet food is also a target of illegal and often dangerous product adulteration. Beijing's promises to get tough on law-breakers have long been hampered by a highly fragmented regulatory system. The FDA opened its first overseas office in China in 2008 in response to increasing food and drug imports into the USA from China. The move followed a series of food safety scares ranging from pet food to powdered milk to candy. Chinese Internet users often post online their worries about the quality of Chinese pet food. In recent months some have posted details about pet deaths they blame on toxic products. Many blame the dog food they bought from individual sellers on the highly popular Internet shopping website Taobao. Some owners say they are now preparing their dogs' food by themselves and share online details of ingredients and recipes. ********* 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. Noemi Irene A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo, Christopher Patalinghug, Frauline Abangan and Peter A. Chapman, Editors. Copyright 2013. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000 or Nina Novak at 202-241-8200. * * * End of Transmission * * *