/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/140122.mbx C L A S S A C T I O N R E P O R T E R Wednesday, January 22, 2014, Vol. 16, No. 15 Headlines 860 RIVER ROAD: Fails to Pay Employees' Overtime Wages, Suit Says ARIZONA: Faces Class Action Over Same-Sex Marriage Ban BEST BUY: "Chea" FLSA Violation Suit Removed to N.D. California CIBA VISION: Consumers Report Clear Care-Related Eye Injuries CLOVERDALE FOODS: Recalls 2,664 Pounds of Beef Franks COLUMBIA SPORTSWEAR: "Hurst" Suit Removed to C.D. California CUBIC CORP: Overcharges Consumers for Single Fare, Suit Says DOCTORS CLINIC: Suit Seeks to Recover Unpaid Wages and Damages EQUINOX HOLDINGS: Compels Customers to Renew Contract, Suit Says EXPRESS INC: Fails to Have POS Devices Usable by Blind, Suit Says EXXONMOBIL OIL: McGuireWoods Discusses Class Action Settlement FAIRFAX, VA: Sued by Fire Investigators & Captains Over Unpaid OT FORD MOTOR: Faces Class Suit Over Defective MyFord Touch Systems FRISCO BAKING: Removed "Sale" Suit to C.D. Cal. Court FUNDS FOR CANADA: Ontario Judge Rules on Class Counsel Fees GANNETT CO: Class Seeks to Stop Unsolicited Calls to Consumers GLOBAL RESPONSE: Faces "Estevez" Suit Over Unpaid Overtime Wages GNC CORP: "Howard" Suit Transferred From New York to Maryland GUSANO'S CHICAGO: Owes Minimum Wage for Hours Worked, Suit Says HYUNDAI MOTOR: Sued Over Vehicle Repurchase or Replacement Offer JOSEPH BRANT: C. Difficile Plaintiffs Get Settlement Checks LEGALCLUB.COM INC: Removed "Merritt" Class Suit to S.D. Florida MICHAEL ZIMET: Security Guard Seeks to Recover Unpaid OT Wages MIDLAND FUNDING: Removed "Italiano" Class Suit to E.D. New York NAM TAI ELECTRONICS: Class Action Voluntarily Dismissed NOEL CANNING: NRLB Case to Impact Presidential Recess Appointments PENNSYLVANIA: Same-Sex Couples Challenge "Mini-DOMA" PINCURLS LLC: Illegally Contacts Class on Cellphones, Suit Claims PRO GRANITE: Refused to Pay Overtime Wages, "Rodriguez" Suit Says SNAPCHAT: Delayed Apology Over Data Breach May Have Repercussions TAC INC: "Whitehead" Suit Seeks Unpaid Wages & Damages Under FLSA TARGET CORP: Faces "Salvador" Suit Over Stolen Personal Info TARGET CORP: Faces "Layton" Suit Over Security Breach TARGET CORP: Faces "Cullen" Suit Over Data Breach TARGET CORP: Holiday Data Breach Affects Up to 70 Million People TARGET CORP: U.S. Senators Seek Answers on Recent Data Breach TARGET CORP: Offers Free Credit Card Monitoring After Data Breach TIME WARNER: "Campbell" Class Suit Removed to C.D. California TOYOTA MOTOR: In Talks to Settle Remaining Injury, Death Claims UNITED STATES: Cuccinelli to Assist Sen. Paul in NSA Class Action UNITED STATES: Secret Court Greenlights Call Log Collections UNITED STATES: Sen. Paul Expresses Support for Edward Snowden UNIVERSAL PROTECTION: Sued for Failing to Pay Non-Exempt Employees URBAN OUTFITTERS: "Perez" Suit Transferred From S.D. to N.D. Cal. VARIETY CHILDREN'S: Class Seeks Unpaid Overtime Wages and Damages WELLS FARGO: Cleverly Conceals Auto Finance Charges, Suit Claims * Boilers, Weight-Lifting Benches Among Recently Recalled Products * FDA Seeks Consumer Reports Related to Defective Tobacco Products * Recent Canada Supreme Court Decisions Clarify Certification Test * SCOTUS Limits Jurisdiction of Courts Over Dirty War Case v. MNCs * Seyfarth Shaw Releases Annual Workplace Class Action Report ********* 860 RIVER ROAD: Fails to Pay Employees' Overtime Wages, Suit Says ----------------------------------------------------------------- Jesus Escobar, individually and on behalf of others similarly situated v. 860 River Road Corp., d/b/a Anthony's Italian Bistro, Anthony MacKenna, and Manny Garcia, Case No. 2:14-cv-00020-FSH-MAH (D.N.J., January 2, 2014) arises from the Defendants' alleged failure to pay overtime compensation to the Plaintiff and similarly situated employees, who worked in excess of 40 hours per week. The Plaintiff also brings the lawsuit to challenge the Defendant's practice of disability discrimination in violation of the New Jersey Law Against Discrimination. 860 River Road Corp., d/b/a Anthony's Italian Bistro, is a New Jersey domestic profit corporation headquartered in Edgewater, New Jersey. The Company is engaged in the restaurant business. Anthony MacKenna owns and operates Anthony's Italian Bistro. Manny Garcia was employed by Anthony's Italian Bistro as a chef and exercised supervisory authority over the Plaintiff. The Plaintiff is represented by: Jeffrey D. Catrambone, Esq. SCIARRA & CATRAMBRONE, LLC 1130 Clifton Avenue Clifton, NJ 07013 Telephone: (973) 242-2442 E-mail: jcatrambone@sciarralaw.com ARIZONA: Faces Class Action Over Same-Sex Marriage Ban ------------------------------------------------------ The Associated Press reports that four couples have filed a class-action lawsuit seeking to make same-sex marriage legal in Arizona. The suit filed on Jan. 6 claims a voter-approved ban on gay marriage is unconstitutional. It seeks to allow same-sex couples to be married and recognize same-sex marriages conducted in other states. The suit names Gov. Jan Brewer and Attorney General Tom Horne among the defendants. The lawsuit claims certain rights and benefits are denied to gay couples because Arizona doesn't recognize their marriages. Some of the couples who filed the lawsuit are legally married in other states. Shawn Aiken, who filed the suit, said the suit involves three male couples and one female couple. All are long-time Arizona residents and two of the couples have adopted children, he said. Should the plaintiffs win the case, Arizona would become the 19th state to recognize same-sex marriages. BEST BUY: "Chea" FLSA Violation Suit Removed to N.D. California --------------------------------------------------------------- The class action lawsuit styled Chea v. Best Buy Stores, L.P., Case No. CIV525561, was removed from the Superior Court of the state of California for the County of San Mateo to the U.S. District Court for the Northern District of California (San Francisco). The District Court Clerk assigned Case No. 3:14-cv- 00020-JSC to the proceeding. The lawsuit alleges violation of the federal Fair Labor Standards Act because the Defendant allegedly failed to pay the Plaintiff and putative class members hourly wages for all time worked, including minimum and overtime wages. The Plaintiff is represented by: Chaim Shaun Setareh, Esq. Adrienne Alayne Herrera, Esq. SETAREH LAW GROUP 9454 Wilshire Boulevard, Suite 711 Beverly Hills, CA 90212-2937 Telephone: (310) 888-7771 Facsimile: (310) 888-0109 E-mail: shaun@setarehlaw.com adrienne@setarehlaw.com The Defendant is represented by: Barbara J. Miller, Esq. MORGAN, LEWIS & BOCKIUS LLP 5 Park Plaza, Suite 1750 Irvine, CA 92614 Telephone: (949) 399-7000 Facsimile: (949) 399-7001 E-mail: barbara.miller@morganlewis.com - and - Stephen L. Taeusch, Esq. Andrew Frederick, Esq. MORGAN, LEWIS & BOCKIUS LLP One Market, Spear Street Tower San Francisco, CA 94105-1126 Telephone: (415) 442-1000 Facsimile: (415) 442-1001 E-mail: staeusch@morganlewis.com afrederick@morganlewis.com CIBA VISION: Consumers Report Clear Care-Related Eye Injuries ------------------------------------------------------------- Michael Cohen, writing for Philly.com's Check Up, reports that in December 2010 and again in May 2012, Check-Up warned consumers who wear contact lenses about Clear Care, a lens cleaning product from Ciba Vision (a Novartis company) that contains hydrogen peroxide. The product must only be used to soak contact lenses within a special lens case that deactivates the hydrogen peroxide prior to placing the lenses back in the eyes. Unfortunately, the product has repeatedly been used by mistake without the special lens case, causing severe pain and, all too often, an eye injury. Many patients wind up in the hospital emergency room. There are also less expensive generic versions available. One of the most recent cases was reported by a woman whose college-age daughter was spending the night at a friend's home. The student realized she'd forgotten her contact lens solution so her friend located a roommate's solution and the contact lenses were soaked in it for the night. It was Clear Care. The next morning, her daughter put her right contact lens in her eye and immediately started to scream out in pain. She removed the contact and, after no relief with flushing the eye with water, she went to a hospital ER. Her eye was flushed with no abatement of symptoms. Staining the eye with a special dye showed corneal damage had occurred. The hospital gave her some antibiotic eye drops and referred her to an eye doctor whom she visited the next day. The eye doctor prescribed an even stronger medication and advised her to return for a follow-up. This young woman joins hundreds of others who've sent reports after they experienced severe pain and/or eye injuries when using Clear Care. There are many more who've complained about the product on the Internet. Unknown is how many actual cases there are that have not been reported. Mr. Cohen said "Based on my research on this topic I believe that there are likely hundreds of thousands of people who have experienced burning by getting this product or the generic directly in their eyes. Ask any group of 100 or so people and 3 or 4 will be contact lens wearers who will tell you they've done this. I have conducted this experiment multiple times in pharmacy school classrooms or during talks to health professionals. Several people in my office have done this (including pharmacists and nurses), as has my own daughter. Given the number of lens wearers, it could even be millions who've had this happen over the years. It's beyond being careless." The product is poorly designed and sets people up for making errors. It is not supposed to be used to wet or soak lenses in the usual manner that other lens cleaning products are used. Clear Care has a special lens case with a built-in neutralizer -- a ring of platinum that reacts with hydrogen peroxide -- that causes the hydrogen peroxide to turn into water. The entire process takes about 6 hours. After this, the lenses can be placed in the eyes. The product label includes several statements to use only the lens case provided, and to not rinse lenses with Clear Care prior to insertion. But for many, the statements have not been noticed given their impaired vision without their lenses in place. For others, the statement may not be a clear warning. Some may think, "Why use the special lens case when I have my own case." Also, those who do not routinely rinse their lenses with saline prior to insertion may simply ignore this statement, thinking it doesn't apply to them. CLOVERDALE FOODS: Recalls 2,664 Pounds of Beef Franks ----------------------------------------------------- The Associated Press reports that a North Dakota company has recalled more than a ton of beef franks due to misbranding. The United States Department of Agriculture's Food Safety and Inspection Service says Cloverdale Foods Co. in Mandan recalled 2,664 pounds of beef franks. The agency says the hot dogs were made with milk, which was not declared on the product label. Milk is a known allergen. There have no reports of illness from the recalled products. The items identified in the recall were "Seattle Mariners Beef Franks." The products were produced on Nov. 23 and Dec. 13, 2013. The franks can be identified by the establishment number "Est. 7603" inside the USDA mark of inspection. The products were sold to retailers in Montana, North Dakota and Washington. COLUMBIA SPORTSWEAR: "Hurst" Suit Removed to C.D. California ------------------------------------------------------------ The class action lawsuit captioned Talia Hurst, individually and on behalf of all others similarly situated v. Columbia Sportswear Company, et al., Case No. BC529555, was removed from the Superior Court of California for the County of Los Angeles to the United States District Court for the Central District of California (Los Angeles). The District Court Clerk assigned Case No. 2:14-cv- 00075-DDP-JEM to the proceeding. The Plaintiff is represented by: David W. Reid, Esq. Richard H. Hikida, Esq. Scott J. Ferrell, Esq. Victoria C. Knowles, Esq. NEWPORT TRIAL GROUP 4100 Newport Place, Suite 800 Newport Beach, CA 92660 Telephone: (949) 706-6464 Facsimile: (949) 706-6469 E-mail: dreid@trialnewport.com rhikida@trialnewport.com sferrell@trialnewport.com vknowles@trialnewport.com The Defendants are represented by: James G. Snell, Esq. John Anthony Polito, Esq. BINGHAM MCCUTCHEN LLP 1117 South California Avenue Palo Alto, CA 94304-1106 Telephone: (650) 849-4400 Facsimile: (650) 849-4800 E-mail: james.snell@bingham.com john.polito@bingham.com CUBIC CORP: Overcharges Consumers for Single Fare, Suit Says ------------------------------------------------------------ Stacy Allen, on behalf of herself and all others similarly situated v. Cubic Corp., a Delaware corporation, Cubic Transportation Systems, Inc., a California corporation, Cubic Transportation Systems Chicago, Inc., an Illinois corporation, and Chicago Transit Authority, an Illinois municipal corporation, Case No. 1:14-cv-00059 (N.D. Ill., January 4, 2014) targets the Defendants' alleged practice of charging unsuspecting consumers multiple times for a single fare on CTA trains and buses. Shortly after the launched of Ventra, CTA's fare system, scores of irate consumers reported that they were frequently being charged twice -- and sometimes three or four times -- for a single fare, Ms. Allen says. Hence, she seeks to enjoin the Defendants from overcharging her and the Class and from continuing their alleged unfair business practices. Cubic Corp. is a Delaware corporation headquartered in San Diego, California. Cubic Transportation Systems, Inc. is a California corporation headquartered in San Diego, California. Cubic Transportation Systems, Inc. is a subsidiary of Cubic Corp. and focuses on Cubic Corp.'s transportation systems business segment. Cubic Transportation Systems Chicago, Inc. is an Illinois corporation headquartered in San Diego, California. Cubic Transportation Systems Chicago, Inc. is a subsidiary of Cubic Transportation Systems, Inc. and a sub-subsidiary of Cubic Corp. The primary purpose of Cubic Transportation Systems Chicago, Inc. is to implement and operate Ventra. CTA is a municipal corporation organized in and existing under the laws of the state of Illinois. CTA operates a public transportation system in Chicago, Illinois, and the surrounding suburbs. The Plaintiff is represented by: Joseph J. Siprut, Esq. Gregg M. Barbakoff, Esq. Ismael T. Salam, Esq. SIPRUT PC 17 N. State Street, Suite 1600 Chicago, IL 60602 Telephone: (312) 236-0000 Facsimile: (312) 470-6588 E-mail: jsiprut@siprut.com gbarbakoff@siprut.com isalam@siprut.com DOCTORS CLINIC: Suit Seeks to Recover Unpaid Wages and Damages -------------------------------------------------------------- Angel Gancerez v. Doctors Clinic Family Health Center LLC, Rennae Sweda and Dr. Stanley Sweda, Case No. 2:14-cv-14004-DMM (S.D. Fla., January 3, 2014) is brought to recover unpaid wages, compensation and damages. During one or more workweeks, the Defendants did not pay the Plaintiff time and one half the Plaintiff's regular rate of pay for overtime hours worked, according to the complaint. The Plaintiff is represented by: Todd W. Shulby, Esq. TODD W. SHULBY, P.A. 4705 Volunteer Road, Suite 102 Southwest Ranches, FL 33330-2123 Telephone: (954) 530-2236 Facsimile: (954) 530-6628 E-mail: tshulby@shulbylaw.com EQUINOX HOLDINGS: Compels Customers to Renew Contract, Suit Says ---------------------------------------------------------------- Lesley McCarthy and Kim Kennedy on behalf of themselves and all others similarly situated v. Equinox Holdings, Inc., John Does 1-25, Case No. 2:14-cv-00037-FSH-JBC (D.N.J., January 3, 2014) is brought on behalf of similarly situated New Jersey consumers relating to the Defendants' alleged violations of the Health Club Services Act, the Consumer Fraud Act, the Retail Installment Sales Act, the Truth in Lending Act and the Truth-in-Consumer Contract, Warranty and Notice Act. The Defendants have violated the HCSA by using Membership Agreements, which, among other things, obligate their customers to automatically and perpetually renew their contracts by imposing unreasonable and unduly onerous requirements to cancel their gym memberships, the Plaintiffs allege. The Plaintiffs add that the Defendants have violated the CFA by their cancellation policies and billing practices, which have the primary and sole purpose of discouraging and impeding their customers from canceling what are otherwise perpetual and automatically self-renewing monthly memberships. Equinox Holding, Inc. is a Delaware corporation headquartered in New York. Equinox owns and operates fitness and health clubs in the United States. The identities of the Doe Defendants will be disclosed in discovery. The Plaintiffs are represented by: Joseph K. Jones, Esq. LAW OFFICES OF JOSEPH K. JONES, LLC 375 Passaic Avenue, Suite 100 Fairfield, NJ 07004 Telephone: (973) 227-5900 Facsimile: (973) 244-0019 E-mail: jkj@legaljones.com EXPRESS INC: Fails to Have POS Devices Usable by Blind, Suit Says ----------------------------------------------------------------- Robert Jahoda, individually and on behalf of all others similarly situated v. Express, Inc., Case No. 2:14-cv-00012-LPL (W.D. Pa., January 3, 2014) alleges violations of the Americans with Disabilities Act and its implementing regulations. Mr. Jahoda, a blind individual, accuses the Defendant of failing to design, construct, and own or operate Point Of Sale Devices that are fully accessible to, and independently usable by, blind people. Express, Inc. is headquartered in Columbus, Ohio. The Company owns and operates over 600 retail stores throughout the United States. The Plaintiff is represented by: R. Bruce Carlson, Esq. Stephanie K. Goldin, Esq. Carlos Diaz, Esq. CARLSON LYNCH LTD PNC Park 115 Federal Street, Suite 210 Pittsburgh, PA 15212 Telephone: (412) 322-9243 Facsimile: (412) 231-0246 E-mail: bcarlson@carlsonlynch.com sgoldin@carlsonlynch.com cdiaz@carlsonlynch.com EXXONMOBIL OIL: McGuireWoods Discusses Class Action Settlement -------------------------------------------------------------- Andrew J. Trask, Esq., at McGuireWoods LLP, reports that ExxonMobil recently attempted to settle a class action involving the payment of gas royalties. As part of that settlement, it agreed to a provision that would impose a severe appeal bond on any objectors who might wish to appeal an unsuccessful objection. The clause read: Because any appeal by an objecting Class Member would delay the payment under the Settlement, each Class Member that appeals agrees to put up a cash bond to be set by the district court sufficient to reimburse Class Counsel's appellate fees, Class Counsel's expenses, and the lost interest to the Class caused by the delay. This provision imposed greater costs on appealing objector than the requirements of Federal Rule of Appellate Procedure 7, which usually govern the posting of appeal bonds. ExxonMobil lost nothing by agreeing to this provision, but its real benefit was for plaintiffs' counsel, who often cannot be paid while the case is still ongoing. The settlement did draw objectors, and they did not prevail in front of the district court. When they appealed, the parties invoked the settlement agreement's appeal bond provision. As a result, the Tenth Circuit was faced with the question posed by Hershey v. ExxonMobil Oil Corp: what rule controlled the appeal bond, FRAP 7, or the settlement clause? The court held that FRAP 7 was not exclusive, and so the parties could decide on additional requirements. (The objectors, as class members, would be bound by the agreement unless they opted out, at which point they would lose standing as objectors.) The objectors argued that this would functionally deprive them of a right to appeal. The Tenth Circuit disagreed. Appellants tell McGuireWoods the appeal rights of objectors to a settlement agreement can henceforth be extinguished in every class action by the simple expedient of including in the settlement agreement an appeal-bond provision such as the one presented here. Not so! Had Appellants made their present argument to the district court in a timely fashion, there would be a genuine issue as to whether they had actually agreed to -- and were therefore bound to honor -- the appeal-bond provision. The decision is logical enough, as far as it goes. But it is essentially a one-time victory for settlement parties. From this point forward, it is a safe bet that any settlement agreement that includes an appeal bond clause like this will draw objections, if for no other reason than to preserve any objectors' appellate rights. Much like the quick-pay provision, McGuireWoods would argue that the appellate bond provision has likely just become a red flag for objectors and courts alike. FAIRFAX, VA: Sued by Fire Investigators & Captains Over Unpaid OT ----------------------------------------------------------------- Gerard Morrison, et al. v. County of Fairfax, VA, Case No. 1:14- cv-00005-CMH-JFA (E.D. Va., January 3, 2014) is brought on behalf of those who are employed as Fire Investigators, Captain I and Captain II in the Fairfax County Fire and Rescue Department and are or were assigned to the Operations Bureau in one or more of the County's 38 fire stations. The Plaintiffs allege that they were unlawfully paid only the straight time rate of pay, as opposed to time and one-half their regular rate of pay, for any and all hours worked in excess of 40 hours per week, in violation of the Fair Labor Standards Act. County of Fairfax, Virginia, is an employer and a public agency within the meaning of the FLSA. The Plaintiffs are represented by: Molly Ann Elkin, Esq. WOODLEY & MCGILLIVARY (DC) 1101 Vermont Ave. NW, Suite 1000 Washington, DC 20005 Telephone: (202) 833-8855 E-mail: mae@wmlaborlaw.com FORD MOTOR: Faces Class Suit Over Defective MyFord Touch Systems ---------------------------------------------------------------- Sandra Storto, individually and as the representative of a class of similarly-situated persons v. Ford Motor Company, Case No. 1:14-cv-00037 (N.D. Ill., January 3, 2014) challenges Ford's alleged unlawful practices relating to its sale of vehicles equipped with "MyFord Touch," "MyLincoln Touch," and "MyMercury Touch" systems in Ford manufactured vehicles beginning with the 2011 model year. The MyFord Touch system consists of three display interfaces that are powered by the "SYNC" operating system designed by Microsoft and provides integrated functionality: a) to operate the sound systems, b) to use the GPS navigation system, c) to operate a Bluetooth device, d) to operate the climate control systems, and e) to operate and manage various other systems, including safety and security systems in Class Vehicles. Although Ford has advertised the MyFord Touch system as a next generation and revolutionary feature in its Class Vehicles and charges a significant premium for a vehicle equipped with the system, the MyFord Touch System does not perform as intended, advertised or promised by Ford, Ms. Storto alleges. She argues that as a result of Ford's unfair, deceptive and fraudulent practices, and its failure to disclose defects in the My Ford Touch system, owners and lessees of Class Vehicles have suffered losses in money and property. Ford is a publicly traded Delaware corporation with its principal place of business in Dearborn, Michigan. Ford has marketed, distributed and sold Class Vehicles in Illinois, as well as nationwide. The Plaintiff is represented by: Alexander I. Arezina, Esq. LAW OFFICE OF ALEXANDER I. AREZINA 728 W. Grand Ave. Chicago, IL 60610 Telephone: (312) 437-1982 E-mail: alex@arezinalaw.com - and - Vincent L. DiTommaso, Esq. Peter S. Lubin, Esq. DITOMMASO LUBIN, PC 17W 220 22nd Street, Suite 410 Oakbrook Terrace, IL 60181 Telephone: (630) 333-0000 E-mail: vdt@ditommasolaw.com psl@ditommasolaw.com FRISCO BAKING: Removed "Sale" Suit to C.D. Cal. Court ----------------------------------------------------- The purported class action lawsuit entitled Thomas Sale v. Frisco Baking Company Inc., et al., Case No. BC529131, was removed from the Superior Court of California for the County of Los Angeles to the United States District Court for the Central District of California (Los Angeles). The District Court Clerk assigned Case No. 2:14-cv-00043-JAK-MAN to the proceeding. The lawsuit alleges labor law violations. The Plaintiff is represented by: Shadie Latae Berenji, Esq. LAW OFFICE OF SHADIE L. BERENJI 633 West 5th Street, 28th Floor Los Angeles, CA 90071 Telephone: (310) 855-3270 Facsimile: (310) 855-3751 E-mail: slb@berenjiemploymentlaw.com The Defendant is represented by: Robert F. Tyson, Jr., Esq. Regina Silva, Esq. English R. Bryant, Esq. TYSON AND MENDES LLP 5661 La Jolla Boulevard La Jolla, CA 92037 Telephone: (858) 459-4400 Facsimile: (858) 459-3864 E-mail: rtyson@tysonmendes.com rsilva@tysonmendes.com ebryant@tysonmendes.com FUNDS FOR CANADA: Ontario Judge Rules on Class Counsel Fees ----------------------------------------------------------- Michael McKiernan, writing for Law Times, reports that class action plaintiffs' counsel are welcoming a Superior Court judge's call to afford presumptive validity to one-third contingency fee agreements. Ontario Superior Court Justice Edward Belobaba initially approved legal fees of 25 per cent after a partial settlement in a case arising out of a charity tax receipt scheme "because frankly, that's what other judges were doing" and asked for written submissions to convince him that the 33-per-cent fee agreed to in the retainer agreement was fair and reasonable. But after reviewing decisions that capped legal fees in the 20- to 25-per-cent range, Justice Belobaba said he was unconvinced by their discussion of "arguably irrelevant or immeasurable metrics such as docketed time (irrelevant) or risks incurred (immeasurable.)" "If the settlement is in the best interests of the class and the retainer agreement provided for, say, a one-third contingency fee, and was fully understood and agreed to by the representative plaintiff, why should the court be concerned about the time that was actually docketed? This only encourages docket-padding and over-lawyering, both of which are already pervasive problems in class action litigation," Justice Belobaba wrote in his Dec. 19 decision in Cannon v. Funds for Canada Foundation. "In my view, it would make more sense to identify a percentage- based legal fee that would be judicially accepted as presumptively valid. This would provide a much-needed measure of predictability in the approval of class counsel's legal fees and would avoid all of the mind-numbing bluster about the time-value of work done or the risks incurred." The court certified the class action two years ago after representative plaintiff Michael Cannon sued on behalf of 10,000 taxpayers who invested in the Donations For Canada gift program between 2005 and 2009. The $144-million program promised charitable tax credits worth four times the cash donation received, but donors ultimately ended up out of pocket after the Canada Revenue Agency reassessed their returns and demanded repayment plus interest. In October, the court approved a partial settlement with several defendants, including prominent Nova Scotia tax lawyer Edwin Harris, whose biography and comfort letter appeared in the program materials. The partial settlement was worth $28.2 million with counsel for the plaintiffs claiming one-third, or $9.4 million, based on their contingency-fee agreement. Justice Belobaba suggested legal fees of one-third of a settlement would be a fair level for presumptive validity since it falls in line with percentages traditionally charged and accepted in the personal injury field. Paliare Roland Rosenberg Rothstein LLP's Margaret Waddell -- marg.waddell@paliareroland.com -- who with co-counsel Sam Marr -- smarr@lmklawyers.com -- of Landy Marr Kats LLP represented the plaintiffs in Cannon, says the decision brings Ontario in line with other provinces where judges have been much less reticent to sanction legal fees of more than 25 per cent. Jonathan Ptak -- jptak@kmlaw.ca -- a partner with Toronto's Koskie Minsky LLP, calls Justice Belobaba's decision a "sensible and refreshing" approach to class action legal fees. Justice Belobaba found the presumption of validity is rebuttable but only "in clear cases based on principled reasons." They include: Where there is a lack of full understanding or true acceptance on the part of the representative plaintiff. "Settlement agreement notices should bold-face or highlight the legal fees portion in order to focus class members' attention on the amount being requested. Affidavits from the representative plaintiffs or class members supporting the legal fees request would certainly be relevant," wrote Justice Belobaba. Where the agreed-to contingency amount is excessive. "If class counsel seek higher amounts, say 40 or 50 per cent, they should be prepared to provide a detailed justification because these higher amounts fall outside the penumbra of what, in my view, is currently acceptable," wrote Justice Belobaba. Where the application of the presumptively valid one-third contingency fee results in a legal fees award that's so large as to be unseemly or otherwise unreasonable. According to Mr. Ptak, these "safety mechanisms" offer protection to the public and the class while simplifying the process for approving counsel fees. He says presumptive validity would improve access to justice by giving lawyers a level of certainty about their potential return on a particular case. Justice Belobaba also predicts presumptive validity would also "take the pressure off certification-motion costs awards as a method for forward-financing the class action" as well as hasten the demise of "multipliers" in class action retainer agreements. GANNETT CO: Class Seeks to Stop Unsolicited Calls to Consumers -------------------------------------------------------------- Richard Casagrand and Dylan Schlossberg individually and on behalf of all others similarly situated v. Gannett Co., Inc., a Delaware corporation, and Marketing Plus, Inc. a New Jersey corporation, Case No. 2:14-cv-00022-SRC-CLW (D.N.J., January 2, 2014) seeks to stop the Defendants' practice of making unsolicited calls to the telephones of consumers nationwide, and to obtain redress for all persons injured by their conduct. Gannett Co., Inc. is a Delaware corporation based in McLean, Virginia. Gannett is a media and marketing company with a portfolio of broadcast, digital, mobile and publishing companies. Gannett's 82 daily newspapers, including USA TODAY, reach over 10 million readers nationwide. Marketing Plus, Inc. is a New Jersey corporation headquartered in Woodbridge, New Jersey. Marketing Plus is a full service telemarketing company that specializes in newspaper promotion. Marketing Plus is the primary telemarketer for Defendant Gannett and works closely with Gannett to promote its stable of newspaper properties. The Plaintiffs are represented by: Jay Edelson, Esq. Rafey S. Balabanian, Esq. Benjamin H. Richman, Esq. Christopher L. Dore, Esq. EDELSON PC 350 North LaSalle Street, Suite 1300 Chicago, IL 60654 Telephone: (312) 589-6370 Facsimile: (312) 589-6378 E-mail: jedelson@edelson.com rbalabanian@edelson.com brichman@edelson.com cdore@edelson.com - and - Stefan L. Coleman, Esq. LAW OFFICES OF STEFAN COLEMAN, LLC 1072 Madison Avenue, Suite 1 Lakewood, NJ 08701 Telephone: (877) 333-9427 E-mail: law@stefancoleman.com GLOBAL RESPONSE: Faces "Estevez" Suit Over Unpaid Overtime Wages ---------------------------------------------------------------- Bolivar Estevez, on his own behalf and others similarly situated v. Global Response Corporation, a Florida corporation, Case No. 0:14-cv-60015-RNS (S.D. Fla., January 3, 2014) is brought to recover from the Defendant overtime compensation, liquidated damages, and the costs and reasonable attorney's fees. Mr. Estevez alleges that he and other similarly situated employees worked overtime hours, but the Defendant failed to compensate them for all of the overtime hours they worked. Global Response Corporation, is a Florida corporation headquartered in Margate, Broward County, Florida. The Company operates call centers in Florida and Michigan. The Plaintiff is represented by: Camar Ricardo Jones, Esq. THE SHAVITZ LAW GROUP, P.A. 1515 South Federal Hwy., Suite 404 Boca Raton, FL 33432 Telephone: (561) 447-8888 Facsimile: (561) 447-8831 E-mail: cjones@shavitzlaw.com GNC CORP: "Howard" Suit Transferred From New York to Maryland ------------------------------------------------------------- The purported class action lawsuit entitled Howard v. GNC Corporation, Case No. 6:13-cv-06490, was transferred from the U.S. District Court for the Western District of New York to the U.S. District Court for the District of Maryland (Baltimore). The Maryland District Court Clerk assigned Case No. 1:14-cv-00002-JFM to the proceeding. GUSANO'S CHICAGO: Owes Minimum Wage for Hours Worked, Suit Says --------------------------------------------------------------- Jacqueline L. Conners, individually and on behalf of all others similarly situated v. Gusano's Chicago Style Pizzeria; Catfish Pies, Inc.; Crazy Pies, Inc; Fayetteville Pies, Inc.; Gusano's Chicago Style Pizzeria Of Bella Vista, Inc.; Hendrix Brands, Inc.; Pizza Profits, Inc.; Show Me Pies, Inc.; and Ben Biesenthal, Case No. 4:14-cv-00002-BSM (E.D. Ark., January 2, 2014) is a collective action under the Fair Labor Standards Act for wages owed. Ms. Conners asserts that she and all other similarly-situated employees are entitled to the return of his or her tips and wages and compensation based on the standard minimum wage for all hours worked. Gusano's Chicago Style Pizzeria is a bar-and-restaurant chain with locations in Arkansas and Missouri. Gusano's Chicago Style Pizzeria of Bella Vista, Inc. is an Arkansas. Gusano's is controlled by its president and founder, Ben Biesenthal. Catfish Pies, Inc. is an Arkansas corporation. Catfish Pies, Inc. owns Gusano's restaurants located in Conway and Bella Vista. Crazy Pies, Inc. is an Arkansas corporation, which owns the Gusano's restaurant located in Bella Vista. Fayetteville Pies, Inc. is an Arkansas corporation. Fayetteville Pies, Inc., owns the Gusano's restaurant located in Fayetteville. Hendrix Brands, Inc. is an Arkansas corporation. Hendrix Brands, Inc., owns the Gusano's restaurant located in Little Rock. Pizza Profits, Inc. is an Arkansas corporation. Pizza Profits, Inc., owns the Gusano's restaurant located in Bentonville. Show Me Pies, Inc. is an Arkansas Corporation. Show Me Pies, Inc., owns the Gusano's restaurant located in Joplin, Missouri. Each of the Corporate Defendant was operated as a single enterprise with the other Defendants. Ben Biesenthal is the President or Principal of all of the Gusano's entities. The Plaintiff is represented by: John T. Holleman, Esq. Maryna O. Jackson, Esq. Timothy A. Steadman, Esq. HOLLEMAN & ASSOCIATES, P.A. 1008 West Second Street Little Rock, AR 72201 Telephone: (501) 975-5040 Facsimile: (501) 975-5041 E-mail: jholleman@johnholleman.net maryna@johnholleman.net tim@johnholleman.net HYUNDAI MOTOR: Sued Over Vehicle Repurchase or Replacement Offer ---------------------------------------------------------------- Lori Robbins, on behalf of herself and all others similarly situated v. Hyundai Motor America and Hyundai Motor Company, Case No. 8:14-cv-00005-JLS-AN (C.D. Cal., January 2, 2014) is brought on behalf of persons in the United States, who purchased or leased any model year Hyundai motor vehicle in California and received a vehicle repurchase or replacement offer. Ms. Robbins contends that Hyundai knew or should have known that it has systematically violated California law by repurchasing or replacing defective vehicles (i) without reimbursing or crediting the buyer for certain statutory damages, including registration fees for each year that the vehicle is registered, GAP insurance, full-coverage insurance for each year the vehicle is insured, extended service contracts, and (ii) while improperly mandating certain deductions from the vehicles' statutorily mandated repurchase prices, like deductions for "any condition beyond normal wear and tear," or alternatively, requiring consumers to pay for repairs at their own expense before Hyundai agrees to repurchase or replace the defective vehicles. Hyundai Motor America is a California corporation headquartered in Fountain Valley, Orange County, California. Hyundai Motor Company is a South Korean multinational automaker headquartered in Seoul, South Korea. Hyundai is engaged in the business of manufacturing, designing, marketing, distributing, and selling automobiles and other motor vehicles and motor vehicle components in California and throughout the United States of America. The Plaintiff is represented by: Payam Shahian, Esq. Karen Nakon, Esq. Larry Chae, Esq. STRATEGIC LEGAL PRACTICES, APC 1875 Century Park East, Suite 700 Los Angeles, CA 90067 Telephone: (310) 277-1040 Facsimile: (310) 943-3838 E-mail: pshahian@slpattorney.com knakon@slpattorney.com lchae@slpattorney.com - and - Mark D. O'Connor, Esq. Steve B. Mikhov, Esq. O'CONNOR & MIKHOV LLP 640 S. San Vicente, Suite 350 Los Angeles, CA 90048 Telephone: (323) 936-2274 Facsimile: (323) 939-7973 E-mail: marko@omlawllp.com stevem@omlawllp.com JOSEPH BRANT: C. Difficile Plaintiffs Get Settlement Checks ----------------------------------------------------------- Joan Walters, writing for TheSpec.com, reports that checks have gone out to all patients and families for the $9-million settlement of a class-action lawsuit launched after a deadly outbreak of the superbug C. difficile at Joseph Brant Hospital in Burlington. Stanley Tick, the Hamilton lawyer for the action launched in 2008, said on Jan. 6 it was a welcome closure for plaintiffs after so many years. He also noted the hospital was co-operative, ultimately, in ensuring the process worked. The checks were sent just before Christmas, and must be cashed by June, under settlement rules. It was a year ago last week that Superior Court Justice Deena Baltman approved the settlement as fair and reasonable following two years of hard-fought negotiations in what she called a "risky and complicated case." Justice Baltman said the suit accomplished "behavior modification" at Jo Brant, where 91 patients infected with the virulent bacteria died and more than 200 were infected in a 2007 outbreak that was longer and deadlier than anyone originally knew. The settlement with patients who contracted the infection -- and the families of those who died -- apportions money according to the length of time claimants were affected by C. diff. The bulk of claims were in the category where patients died, or had symptoms of the intestinal infection for more than 90 days. The surviving patient or the estate receives $15,000 and the patient's family receives $21,000. Other categories of claimants receive between $1,000 and $10,000, depending on severity. Settlement documents filed in court say the hospital does not admit wrongdoing or liability. LEGALCLUB.COM INC: Removed "Merritt" Class Suit to S.D. Florida --------------------------------------------------------------- The putative class action lawsuit styled Merritt v. LegalClub.Com, Inc., et al., Case No. CACE-13-026331-12, was removed from the 17th Judicial Circuit in and for Broward County, Florida, to the U.S. District Court for the Southern District of Florida (Ft. Lauderdale). The District Court Clerk assigned Case No. 0:14-cv- 60022-RNS to the proceeding. The Plaintiff is represented by: Richard Alan Russell, Esq. WOLPOFF & ABRAMSON LLP 5355 Town Center Road, Suite 1002 Boca Raton, FL 33486 Telephone: (702) 279-0824 E-mail: rqr@wolpofflaw.com The Defendants are represented by: Jeffrey Aaron Backman, Esq. Richard Wayne Epstein, Esq. Scott M. Wellikoff, Esq. GREENSPOON MARDER, P.A. 200 East Broward Blvd., Suite 1500 Fort Lauderdale, FL 33301 Telephone: (954) 491-1120 Facsimile: (954) 213-0140 E-mail: jeffrey.backman@gmlaw.com richard.epstein@gmlaw.com scott.wellikoff@gmlaw.com MICHAEL ZIMET: Security Guard Seeks to Recover Unpaid OT Wages -------------------------------------------------------------- Jasha Bennet, on behalf of himself and others similarly situated v. Michael Zimet, LLC, and Michael Zimet, Case No. 7:14-cv-00015- KMK (S.D.N.Y., January 2, 2014) alleges that pursuant to the Fair Labor Standards Act, the Plaintiff is entitled to recover from the Defendants unpaid overtime wages, liquidated damages pre-judgment and post-judgment interest and attorneys' fees and costs. The Plaintiff was employed by the Defendants to work as a security guard at a horse farm. Michael Zimet, LLC, is a New York domestic limited liability company headquartered in Bronx, New York. Michael Zimet is an owner, officer, director or managing agent of the Company. The Plaintiff is represented by: Peter Hans Cooper, Esq. CILENTI & COOPER, P.L.L.C. 708 Third Avenue, 6th Floor New York, NY 10017 Telephone: (212) 209-3933 Facsimile: (212) 209-7102 E-mail: pcooper@jcpclaw.com MIDLAND FUNDING: Removed "Italiano" Class Suit to E.D. New York --------------------------------------------------------------- The class action lawsuit titled Italiano, et al. v. Midland Funding, LLC, et al., Case No. 13-064184, was removed from the Supreme Court of the State of New York, County of Suffolk, to the U.S. District Court for the Eastern District of New York (Central Islip). The District Court Clerk assigned Case No. 2:14-cv-00018- LDW-ARL to the proceeding. The Plaintiffs are represented by: Leland L. Greene, Esq. LAW OFFICE OF LELAND L. GREENE 1565 Franklin Avenue, 2nd Floor Mineola, NY 11501 Telephone: (516) 746-3800 Facsimile: (516) 222-6577 E-mail: lgreenelaw@aol.com The Defendants are represented by: Richard David Lane, Jr., Esq. Marshall, Dennehey, Warner, Coleman & Goggin 88 Pine Street, 21st Floor New York, NY 10005 Telephone: (212) 376-6400 Facsimile: (212) 376-6490 E-mail: rdlane@mdwcg.com NAM TAI ELECTRONICS: Class Action Voluntarily Dismissed ------------------------------------------------------- Nam Tai Electronics, Inc. disclosed that on January 6, 2014, the class action lawsuit filed against the Company and two of its executives by several shareholders of Nam Tai on May 17, 2013 in the United States District Court for the Southern District of New York, was voluntarily dismissed by the plaintiffs, with prejudice. No payment or consideration of any kind was made by any of the defendants in connection with the dismissal. "We are pleased to put this matter behind us," commented Mr. Koo, Executive Chairman and Chief Financial Officer. "With this resolution, we can move forward and continue to focus on our new corporate development." NOEL CANNING: NRLB Case to Impact Presidential Recess Appointments ------------------------------------------------------------------ Rebekah Mintzer, writing for Corporate Counsel, reports that a case argued before the U.S. Supreme Court Jan. 13 will have important implications for the validity of presidential recess appointments. In the process, NLRB v. Noel Canning Corp. could have a huge impact in the labor and employment world by rendering hundreds of National Labor Relations Board decisions null and void. "It'll certainly be a case that will go down in the constitutional law textbooks in the future," Ronald Meisburg -- rmeisburg@proskauer.com -- cohead of Proskauer Rose's Labor- Management Relations practice group and a former general counsel of the NLRB, told CorpCounsel.com In Noel Canning, the Supreme Court will review a January 2013 decision by the D.C. Circuit Court of Appeals, which overturned an NLRB ruling against the Yakima, Wash., bottling company. Teamsters Union 760 alleged Noel Canning committed unfair labor practices by failing to appropriately implement a pay raise it had negotiated with the union and brought the case to the NLRB, which ruled in the union's favor. The circuit court determined that the NLRB decision was invalid because, through his Jan. 4, 2012, appointment of three NLRB board members, President Barack Obama overstepped his constitutional powers under the Recess Appointments Clause, which allows the executive to make appointments by himself that would normally need Senate confirmation, if the Senate is in recess. Noel Canning argued that because the recess was a break within a session, not between sessions, it would not qualify as an appropriate "recess" to carry out executive appointments under the clause. Plus, some Senate Republicans were meeting "pro forma" throughout January 2012 in an attempt to prevent President Obama for making these appointments. Since the appointments were not valid under the Recess Appointments Clause, the company's argument goes, the board has not had the full quorum necessary to make its decisions for quite a while. NLRB v. Noel Canning will have implications for the balance of powers between executive and legislative branches, and may invalidate all of the NLRB's rulings from Jan. 4, 2012, to the present. The Third Circuit Court of Appeals has even rejected NLRB decisions dating back to 2010, due to a separate recess appointment it deemed invalid. A ruling favorable to Noel Canning would keep the board busy revisiting hundreds of past decisions, said Mr. Meisburg. "If they affirm the D.C. Circuit, it means the board will probably have a greater workload, which may slow down some of the other things they want to do because they only have a limited number of people and a limited amount of time to deal with all of this," he noted. Ken Yerkes, partner at Barnes & Thornburg and chairman of the firm's Labor and Employment Department, cautioned that just because the Supreme Court's decision may throw out recent NLRB cases, and the precedents they've established might no longer be binding, doesn't mean attorneys who are advising clients should disregard what the board was up to during this time. "So as you give advice, even in a particular case, if it's social media or rulemaking and elections, the fact of that matter is that those cases provide a road map for how this board will evaluate issues," said Mr. Yerkes. Both Messrs. Yerkes and Meisburg said they believe that it's likely the decision by the D.C. Circuit will be upheld. Mr. Meisburg said that oral arguments indicated that the justices "understand it may be a big burden" for the board to revisit hundreds of cases, but they also indicated that the burden shouldn't trump compliance with the letter of the law as interpreted. PENNSYLVANIA: Same-Sex Couples Challenge "Mini-DOMA" ---------------------------------------------------- Saranac Hale Spencer, writing for The Legal Intelligencer, reports that Pennsylvania's "mini-DOMA" has the same discriminatory purpose and effect as the federal Defense of Marriage Act on which it was based, plaintiffs in one of the challenges to the state's ban on same-sex marriage argued in their opposition to the Corbett administration's objections to their suit. The state's law restricting the definition of marriage as being between one man and one woman should be struck for the same reason the U.S. Supreme Court struck it from the federal law, lawyers in the case, led by Robert Heim of Dechert, argued in Ballen v. Corbett. The case, brought by same-sex couples who were granted marriage licenses by a Montgomery County clerk before he was ordered to stop last summer, is in the Commonwealth Court. The administration is represented by lawyers from Lamb McErlane, as it is in the other challenges to the state's marriage law. "Crucially, the Supreme Court of the United States recently held that the federal Defense of Marriage Act . . . was unconstitutional under 'basic due process and equal protection principles' because the law had the avowed purpose 'to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages,'" Mr. Heim said in the brief, referring to the high court's opinion in United States v. Windsor that was issued in June. "Pennsylvania's marriage law -- its own version of DOMA -- is no different," he said. Mr. Heim also countered the argument that Gov. Tom Corbett should be dismissed from the suit since he isn't a proper party, saying that the governor is responsible for enforcing all of the state's laws. Beyond that, he said in the brief that his clients plan to "seek discovery from a wide range of executive departments and officials" and "dismissing the governor could impact plaintiffs' ability to obtain the discovery they need to prove their case, and thus would impose an undue and unfair burden on plaintiffs." The couples who brought the suit in September filed a joint petition with Attorney General Kathleen Kane last month seeking to dismiss her as a defendant since she "is an unnecessary party," according to the short petition filed with the Commonwealth Court. The Corbett administration fired back, saying in a response filed this month, "Joint petitioners argue that a discontinuance of the action against the attorney general would not cause unreasonable inconvenience, vexation, harassment, expense or prejudice to the governor. This is completely untrue." The lawyers for Corbett, a Republican, argued that dismissing only Kane, who is a Democrat, "implies a motive to inconvenience, harass and/or prejudice the governor with no legitimate justification." Mr. Corbett, Ms. Kane and Michael Wolf, the state's secretary of health, are named as defendants in the action. Mr. Heim argued in the most recent brief that Corbett and his office function as an all-encompassing defendant, thereby keeping the complexity of the case at a minimum. "Without Corbett as a defendant, plaintiffs may need to amend their petition to sue all of the inferior executive officers implicated by the marriage law," Mr. Heim argued. "By retaining the governor as a defendant, however, plaintiffs can reach all inferior executive departments or officers for purposes of discovery or ultimate relief." The month after the U.S. Supreme Court issued its opinion in Windsor, Kane announced that she wouldn't defend the state's marriage law in the first suit to challenge the law that was filed in federal court in July. That move prompted sparring between the Attorney General's Office and the Office of General Counsel, which is an extension of the executive branch. Ms. Kane called Pennsylvania's marriage law "wholly unconstitutional." "Although Windsor did not directly address the constitutionality of any state law restricting same-sex marriage like Pennsylvania's marriage law, the Supreme Court's reasoning supports the conclusion that such laws are unconstitutional," Mr. Heim argued in the brief. The Montgomery County clerk, D. Bruce Hanes, started issuing marriage licenses to same-sex couples soon after Ms. Kane's announcement. Mr. Wolf's Department of Health in August filed a mandamus action to compel Hanes to stop, which was granted in September. Mr. Hanes is appealing that case. Also among the Corbett administration's objections was the plaintiffs' claim of sex discrimination is invalid since both men and women are treated equally under the marriage law. "Both a man and a woman are equally prohibited from marrying someone of the same sex under the marriage law. There is no distinction in the treatment of a man or a woman under the law," lawyers for the administration argued in the objections filed last month. However, Mr. Heim answered that argument in the most recent brief, saying, "Half a century of case law from the Supreme Court of the United States and the Pennsylvania courts shows defendants' 'equal application' theory is without merit and should be rejected." PINCURLS LLC: Illegally Contacts Class on Cellphones, Suit Claims ----------------------------------------------------------------- Matthew M. Loker; individually and on behalf of all others similarly situated v. Pincurls, LLC; and Demandforce, Inc., Case No. 2:14-cv-00051-SJO-PJW (C.D. Cal., January 3, 2014) is brought for damages, injunctive relief and other equitable remedies, resulting from the Defendants' alleged illegal actions in negligently contacting the Plaintiff on his cellular telephone, in violation of the Telephone Consumer Protection Act. Pincurls, LLC, is a limited liability company based in Illinois. Pincurls operates as a hair salon business. Demandforce, Inc., is a corporation whose primary corporate address is in San Francisco, California and whose principal place of business is in the state of California. Demandforce created an application to connect small local businesses, its clients, to consumers via text messaging and online services. The Plaintiff is represented by: Todd M. Friedman, Esq. Nicholas J. Bontrager, Esq. LAW OFFICES OF TODD M. FRIEDMAN PC 369 South Doheny Drive, Suite 415 Beverly Hills, CA 90211 Telephone: (877) 206-4741 Facsimile: (866) 633-0228 E-mail: tfriedman@attorneysforconsumers.com NBontrager@attorneysforconsumers.com PRO GRANITE: Refused to Pay Overtime Wages, "Rodriguez" Suit Says ----------------------------------------------------------------- Santos Bruno Sanchez Rodriguez and all others similarly situated under 29 U.S.C. 216(B) v. Pro Granite & Marble, Inc. and Nicolae Mihalcea, Case No. 0:14-cv-60021-WJZ (S.D. Fla., January 3, 2014) alleges that the Defendants willfully and intentionally refused to pay the Plaintiff's overtime wages as required by the Fair Labor Standards Act. The Plaintiff requests double damages and reasonable attorney fees from the Defendants, pursuant to the FLSA, to be proven at the time of trial for all overtime wages still owing from the Plaintiff's entire employment period with the Defendants or as much as allowed by the FLSA along with court costs. Pro Granite & Marble, Inc. is a corporation that regularly transacts business within Broward County. Nicolae Mihalcea is a corporate officer, owner or manager of the Company. The Plaintiff is represented by: Jamie H. Zidell, Esq. J.H. ZIDELL, P.A. 300 71st Street, Suite 605 Miami Beach, FL 33141 Telephone: (305) 865-6766 Facsimile: (305) 865-7167 E-mail: ZABOGADO@AOL.COM SNAPCHAT: Delayed Apology Over Data Breach May Have Repercussions ----------------------------------------------------------------- Marlisse Silver Sweeney, writing for Law Technology News, reports that Snapchat's failure to apologize to its customers for a massive data breach has done its own disappearing act. The app has backtracked and issued an apologetic blog post sorry. The attack which exposed 4.6 million users' phone numbers was not malicious, reports Lexblog's Anna Gallegos. Instead, it was done to expose a security vulnerability that the company had been warned about as early as last August. The app has also been fortuitous in that no customers have filed suits against it, in the wake of the breach. Target, who exposed over 70 million customers' personal identification and banking information to hackers, has not had the same string of good fortune. However, it's possible for the delayed apology to have its own repercussions. Forty-six states have laws requiring a timely notification of data breach, says Ms. Gallegos. And "Congress is pushing for legislation and hearings to protect consumers against future hacks," she says. "Instead of waiting for a data disaster, mobile apps like Snapchat need a well-written privacy policy to protect them from legal action and keep users on what is happening to their information,' says Ms. Gallegos. TAC INC: "Whitehead" Suit Seeks Unpaid Wages & Damages Under FLSA ----------------------------------------------------------------- Tahir Whitehead v. TAC, Inc., Case No. 3:14-cv-00001-TCB (N.D. Ga., January 3, 2014) seeks payment for unpaid wages, overtime wages, liquidated damages, actual damages and compensatory damages for the Defendant's alleged violation of the Fair Labor Standards Act of 1938. As an hourly employee, he and other similarly situated employees were entitled to full pay for each hour worked and overtime for any time worked over 40 hours per week, Mr. Whitehead contends. TAC, Inc., is a Georgia domestic corporation based in Peachtree City, Georgia. The Company is a discount furniture retailer, offering customers in the Atlanta metropolitan area brand name furniture at discount prices. The Plaintiff is represented by: Christopher D. Vaughn, Esq. A. Brian Henson, Esq. THE VAUGHN LAW FIRM, LLC 246 Sycamore Street, Suite 150 Decatur, GA 30030 Telephone: (404) 378-1290 Facsimile: (404) 378-1295 E-mail: cvaughn@thevaughnlawfirm.com bhenson@thevaughnlawfirm.com - and - Frank DeMelfi, Esq. DEMELFI LAW GROUP, LLC 4651 Woodstock Road, Suite 208-103 Roswell, GA 30075 Telephone: (678) 948-7808 Facsimile: (866) 674-7808 E-mail: fdemelfi@gmail.com TARGET CORP: Faces "Salvador" Suit Over Stolen Personal Info ------------------------------------------------------------ Simone Salvador and Ariana Barbosa, on behalf of themselves and all others similarly situated v. Target Corporation, Case No. 0:14-cv-00022-JRT-JJG (D. Minn., January 3, 2014) is a class action against Target on behalf of approximately 40 million Target store customers whose personally identifiable information was stolen in what is the second largest consumer data security breach in retail history. The Plaintiffs seek relief under Minnesota law on behalf of all consumers in the United States, who shopped at Target stores in the United States between November 27 and December 15, 2013. Simone Salvador also seeks relief under California law on behalf of the hundreds of thousands of Target store customers, who shopped at Target stores in California between November 27 and December 15, 2013. Target Corporation is a Minnesota Corporation, and maintains its headquarters in Minneapolis, Minnesota. Target is a discount consumer retailer, and as of the end of November 2013, Target maintained almost 1,990 stores globally. The Plaintiffs are represented by: Vincent J. Esades, Esq. Renae D. Steiner, Esq. David Woodward, Esq. HEINS MILLS & OLSON, P.L.C. 310 Clifton Avenue Minneapolis, MN 55403 Telephone: (612) 338-4605 Facsimile: (612) 338-4692 E-mail: vesades@heinsmills.com rsteiner@heinsmills.com dwoodward@heinsmills.com - and - Jayne A. Goldstein, Esq. POMERANTZ LLP 1792 Bell Tower Lane, Suite 203 Weston, FL 33326 Telephone: (954) 315-3454 Facsimile: (954) 315-3455 E-mail: jagoldstein@pomlaw.com - and - Gustavo F. Bruckner, Esq. POMERANTZ LLP 600 3rd Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661-1100 Facsimile: 212 (661) 8665 E-mail: gfbruckner@pomlaw.com - and - Mark B. Goldstein, Esq. POMERANTZ LLP 10 South LaSalle Street, Suite 3505 Chicago, IL 60603 Telephone: (312) 377-1181 Facsimile: (312) 377-1184 E-mail: mbgoldstein@pomlaw.com TARGET CORP: Faces "Layton" Suit Over Security Breach ----------------------------------------------------- Robert Layton and Krishanti Wahla, on their own behalf and on behalf of all others similarly situated v. Target Corporation, a Minnesota Corporation, Case No. 3:14-cv-00053-EDL (N.D. Cal., January 3, 2014) is brought on behalf of all persons, who used credit or debit cards at Target Corporation stores in the United States from November 27, 2013, through December 15, 2013. The Plaintiffs allege that the Company failed to disclose the breach of security of its system "in the most expedient time possible and without unreasonable delay" as required by the California Civil Code. The Plaintiffs contend that although Target was aware of the security breach before the news broke to the public, Target did not immediately inform its customers and the public at large. Target Corporation is a Minnesota corporation with its headquarters and principal place of business in Minnesota. Target is one of the largest retailers in the United States, operating over 1,700 stores in the United States. The Plaintiffs are represented by: Alan Harris, Esq. Priya Mohan, Esq. HARRIS & RUBLE 4771 Cromwell Avenue Los Angeles, CA 90027 Telephone: (323) 962-3777 Facsimile: (323) 962-3004 E-mail: aharris@harrisandruble.com pmohan@harrisandruble.com TARGET CORP: Faces "Cullen" Suit Over Data Breach ------------------------------------------------- Jacqueline Cullen, on behalf of herself and all others similarly situated v. Target Corporation, a Minnesota corporation; and Does 1 to 10, inclusive, Case No. 2:14-cv-00003-BRO-SH (C.D. Cal., January 2, 2014) arises from the data breach on Target's point-of- sale systems that occurred between November 27, 2013, and December 15, 2013. The Defendants failed to implement and maintain reasonable security procedures and practices appropriate to the nature and scope of the information compromised in the data breach, Ms. Cullen alleges. She asserts that she had $1,578 stolen from her personal bank account due to the Defendants' negligence. Target Corporation is a Minnesota corporation headquartered in Minneapolis, Minnesota. Target is the second largest discount retailer in the United States, operating over 1,500 retail stores in the United States. The Plaintiff does not know the true names or capacities of the Doe Defendants. The Plaintiff is represented by: Kevin T. Barnes, Esq. Gregg Lander, Esq. LAW OFFICES OF KEVIN T. BARNES 5670 Wilshire Boulevard, Suite 1460 Los Angeles, CA 90036-5664 Telephone: (323) 549-9100 Facsimile: (323) 549-0101 E-mail: lander@kbarnes.com Barnes@kbarnes.com TARGET CORP: Holiday Data Breach Affects Up to 70 Million People ---------------------------------------------------------------- Paul Ziobro and Danny Yadron at The Wall Street Journal report that Target Corp.'s holiday data breach was bigger than the company had previously said, penetrating more systems and compromising a new set of personal information affecting up to 70 million people. Target, which operators nearly 1,800 U.S. stores, said the data included a mix of names, mailing addresses, phone numbers and email addresses -- information that is semipublic but which law- enforcement officials said is valued by thieves who could use it to lure victims with fake emails or hack into other accounts. Target said the information was stored separately from the 40 million credit and debit card accounts that the company had previously said were affected. There was some overlap between the two sets of stolen data, but Target didn't say how extensive it was. The entry point for the attack has been identified and closed, spokeswoman Molly Snyder said. Target said just before Christmas that apparent thieves had broken into its point of sale system and stolen credit and debit card data in a hack that went on for two weeks including the crucial Black Friday weekend. The company, the Secret Service, the U.S. Justice Department and a forensic unit of Verizon Communications Inc. continue to investigate the breach. A number of states are also investigating the incident and Target's response. The company held a conference call lasting about 45 minutes with several state attorneys general on Jan. 10 to discuss the new details of the breach, a person familiar with the call said. New York Attorney General Eric Schneiderman said the new Target disclosure was "deeply troubling." The company had said the data breach, which ran from Nov. 27 and Dec. 15, involved malicious software installed in the system where cards are swiped at cash registers. In late December, the company added that encrypted debit card PIN data also was stolen in the breach. Now, it says the breach went beyond that system to one that stored the personal data. Target wouldn't say which other system was affected. The new disclosure came just as Target said it was starting to see a recovery in recent days from the damage done to sales by the original news of the breach. The retailer hasn't provided any estimate of costs related to the breach, which could include reimbursements to card networks to cover fraud and the cost of issuing new cards, lawsuits, and legal costs associated with the various investigations. The costs could significantly hurt results, Target said. Target is offering a year of free monitoring and identity theft protection to anyone who shops in its U.S. stores -- a number the company puts at 30 million people weekly. Card customers aren't responsible for unauthorized charges on their accounts. Tort Lawyers Seek to Profit From Class Actions Dennis Wyatt, Managing Editor for Manteca Bulletin, reports that on the day the security breach was announced, seven suits seeking class-action status against Target were filed in federal court. The number swelled to 40 by year's end. Seven people alleged financial damages from the data swiped from Target's point-of-sale terminals even before there was any proof that they had incurred any loss. Twelve days later as 2013 came to a close and 33 others joined them again without any proof that anyone has even incurred a loss of a penny via the data breach. Behind all of this is greed practiced by a handful of lawyers that have a special place reserved for them in Hades -- class-action lawsuit attorneys. They operate on the assumption that any wrong is the Mother Lode and can be justified by emphasizing that the law was broken and therefore the firm in question must be punished. The problem with many tort attorneys is every alleged wrongdoing is Mt. Everest. What happened at Target is no asbestos case. There isn't even evidence that anyone has been financially damaged except for the banks scrambling to replace cards and Target itself. The plaintiffs seeking class-action status demand Target provide credit monitoring services to anyone suffering bogus charges due to the data theft. Only one problem: Target has already said it will do that. What the class-action suit filings are all about is tort lawyers profiting off Target. In the end, guess who will pick up the tab for Target's legal costs and if for some chance they are forced into a settlement? Those who shop at Target will pay the price. TARGET CORP: U.S. Senators Seek Answers on Recent Data Breach ------------------------------------------------------------- Jim Spencer, writing for Star Tribune, reports that in a Jan. 10 letter, Sens. Jay Rockefeller, D-W.Va., and Claire McCaskill, D- Mo., asked Target Corp. CEO Gregg Steinhafel to brief the Senate Commerce, Science and Transportation Committee to explain how information from so many customer accounts was stolen. "It has been three weeks since the data breach was discovered and new information continues to come out," they wrote. "We expect your security experts have had time to fully examine the cause and impact of the breach and will be able to provide the committee with detailed information." On Jan. 15, a Target spokeswoman said the company had received the senators' letter and was "continuing to work with them and other elected officials to keep them informed and updated as our investigation continues." She did not say when Target officials might meet with Commerce Committee members. Rockefeller of West Virginia, who chairs the committee, and Minnesota's McCaskill, who chairs its Consumer Protection, Product Safety and Insurance subcommittee, have backed legislation for better security of consumer data and prompter corporate disclosures of security breaches. Target waited four days after learning that its database had been hacked to announce the theft of customer information. "Target's recent incident demonstrates the need for such federal legislation," Rockefeller and Ms. McCaskill wrote to Mr. Steinhafel. The company initially reported that 40 million customer accounts were compromised by data thefts between Nov. 27 and Dec. 13. But earlier this month Target said names, addresses and other information from as many as 70 million customers were compromised. Rockefeller and Ms. McCaskill called it "one of the nation's biggest data breaches in recent memory." Mr. Steinhafel and Target have undertaken a national campaign of apologies and offers to monitor the credit ratings and ensure no injury to customers affected by the crime. TARGET CORP: Offers Free Credit Card Monitoring After Data Breach ----------------------------------------------------------------- John Ewoldt, writing for Star Tribune, reports that Target's efforts to regain customers' trust after a massive data breach include an offer of daily credit card monitoring, identity theft insurance and access to a fraud resolution agent. Any Target customer who shopped in one of its U.S. stores is eligible for a year of free credit monitoring and identity theft protection, Target announced this week. The service is called ProtectMyID from Experian, a credit monitoring company. Those who sign up before April 23 and enroll with a code by April 30 will receive a free copy of their credit report along with the other services. Target's free offer is typical of those offered by most retailers after a security breach, said Dianne Cutter, CEO of Asurency Protection in Chaska, an identity theft and fraud protection company. "It's a good idea to take them up on it," she said. "But consumers should still look at their credit report to look for any changes." Dan Hendrickson, spokesman for the Better Business Bureau of Minnesota and North Dakota, also recommends getting the free coverage, even if a person hasn't noticed unauthorized charges. "It makes sense to sign up regardless. Often there's a period of two to three months without any fraudulent activity and something pops up." Target revealed last week that the data theft was even bigger than originally thought, with up to 110 million people at risk by the exposure of credit and debit card numbers, as well as mailing addresses and other personal information. Consumers who want the credit monitoring can start the process at https://creditmonitoring.target.com An e-mail address and name is required to sign up. Target will e-mail an activation code within one to five days to enroll. Then consumers will complete the process with the code at www.protectmyid.com/target Name, address, date of birth and Social Security number are required. Jacqui DuBois of Plymouth has already taken Target up on its free offer. "I signed up for it because I don't have time to monitor my accounts as closely as I would like to," she said. Consumers without computer access can call 1-866-852-8680 to start the process. ProtectMyID does not include a credit score or reports from other credit reporting agencies such as Equifax or TransUnion, although enrollees are given the opportunity to purchase extra services at their own expense. The free monitoring and identity theft protection will end one year after the consumer registers with Experian. At that point, customers can pay for the protection but there will be no automatic enrollment, according to the credit monitoring FAQs on Target's website. The cost of credit monitoring services varies from $120 to $300 per year for consumers, according to Consumer Reports, but Target is probably paying much less. "They get it for a really cheap price," Ms. Cutter said. TIME WARNER: "Campbell" Class Suit Removed to C.D. California ------------------------------------------------------------- The class action lawsuit captioned Mark Campbell v. Time Warner NY Cable LLC, et al., Case No. CIVDS1207269, was removed from the San Bernardino County Superior Court to the United States District Court for the Central District of California (Riverside). The District Court Clerk assigned Case No. 5:14-cv-00005-VAP-DTB to the proceeding. In his complaint, Mark Campbell seeks to recover unpaid minimum and overtime wages for off-the-clock work. The Plaintiff is represented by: Gregory E. Mauro, Esq. James R. Hawkins, Esq. JAMES HAWKINS APLC 9880 Research Drive Suite 200 Irvine, CA 92618 Telephone: (949) 387-7200 Facsimile: (949) 387-6676 E-mail: greg@jameshawkinsaplc.com james@jameshawkinsaplc.com The Defendants are represented by: Jeffrey N. Williams, Esq. Mark L. Block, Esq. WARGO & FRENCH LLP 1888 Century Park East, Suite 1520 Los Angeles, CA 90067 Telephone: (310) 853-6300 Facsimile: (310) 853-6333 E-mail: jwilliams@wargofrench.com mblock@wargofrench.com - and - J. Scott Carr, Esq. WARGO & FRENCH LLP 999 Peachtree Street, N.E., 26th Floor Atlanta, GA 30309 Telephone: (404) 853-1500 Facsimile: (404) 853-1501 E-mail: scarr@wargofrench.com TOYOTA MOTOR: In Talks to Settle Remaining Injury, Death Claims --------------------------------------------------------------- Amanda Bronstad, writing for The National Law Journal, reports that an attorney for Toyota Motor Corp. said on Jan. 14 that the automaker is in negotiations with attorneys for nearly one-third of the 450 remaining wrongful-death and personal injury cases filed over sudden-acceleration defects. UNITED STATES: Cuccinelli to Assist Sen. Paul in NSA Class Action ----------------------------------------------------------------- Rachel Weiner, writing for The Washington Post, reports that outgoing Virginia Attorney General Ken Cuccinelli II (R) will assist U.S. Sen. Rand Paul (R-Ky.) with a class-action suit against the National Security Agency over its surveillance of Americans' phone records. Mr. Cuccinelli will serve as a legal adviser to Mr. Paul, a spokesman said, but not as the lead counsel in the lawsuit. Mr. Paul's suit has been in the works since the summer. He has been collecting signatures for the past six months, saying that anyone with a cellphone can join in. Mr. Paul announced his intention to go ahead with the suit on Fox News on Jan. 3 and revealed that Mr. Cuccinelli would be part of the legal team. In 2010, Mr. Cuccinelli was the first attorney general in the nation to sue over President Obama's health-care law. UNITED STATES: Secret Court Greenlights Call Log Collections ------------------------------------------------------------ Aliya Sternstein, writing for Nextgov.com, reports that a secret federal court has greenlighted the government's continued collection of call logs from millions of Americans, Director of National Intelligence James Clapper disclosed on Jan. 3 as demands for the program's abolishment reached new heights. Later on Jan. 3, Sen. Rand Paul, R-Ky., a potential 2016 presidential contender, said he will file a class action lawsuit against the government to stop the surveillance. DNI officials had attempted to preempt such blowback when they announced the court's blessing. They made promises to declassify the court order and consider a recommendation to shift data collection to private companies. Mr. Paul announced his lawsuit on Fox News later in the day and posted a signup sheet on his Senate campaign website for aggrieved citizens. Basically anyone in the United States with a cell phone would be eligible to participate in the litigation, he claims. Under the National Security Agency program, records detailing citizen and foreign national calls, including phone numbers, time stamps and durations of conversations, are harvested to detect possible plots and conspirators. So much data is being gathered that NSA needs to open at least two more data centers in Maryland and Utah for storage and backup. Last month, a White House-appointed review panel called for an end to the hoarding, citing the program's potential to chill free speech and invade privacy. The panel members advised officials to outsource collection activities to phone companies or a private entity. As part of yet another fight against phone monitoring, the American Civil Liberties Union on Jan. 2 appealed a Dec. 27 decision by U.S. District Judge William Pauley that upheld the program. His opinion described the effort as a "counter-punch" to al-Qaeda's terror network that is continuously monitored by the secret court. The court reviews it every 90 days. The Obama administration remains committed to the effort, based on recent comments. Mr. Turner on Jan. 3 said the Justice Department has contested a separate Dec. 16 ruling by U.S. District Judge Richard Leon that found the call log program unlawful, haphazard and intrusive. But Mr. Turner signaled the White House's willingness to make some adjustments in line with the panel's suggestions. UNITED STATES: Sen. Paul Expresses Support for Edward Snowden ------------------------------------------------------------- Whitney Larkins, writing for State Column, reports that Senator Rand Paul (R-K.Y.), a libertarian and potential 2016 Presidential candidate, appeared on the Jan. 5 edition of Meet the Press and expressed his unequivocal support for Edward Snowden, former U.S.- government employee who is now living in exile due to his role in alleged crimes in violation of the Espionage Act. Should Mr. Snowden return to the U.S., he faces death penalty or life in prison. Despite recent calls for clemency and a reduced punishment, Mr. Snowden faces stiff punishment if convicted. Mr. Snowden is currently in Russia and has not been seen on U.S. soil since mid-2013. Despite the fact that months have passed since Mr. Paul initially announced his plans to file a class action lawsuit against the National Security Agency reports surfaced in various news outlets over the weekend confirming that the lawsuit will be filed in the immediate future. Analysts suggest that Mr. Paul's lawsuit will add credence to Mr. Snowden's cause and bring surveillance to the forefront of national discourse. However, critics suggest that Mr. Snowden should be punished for releasing information that is potentially a danger to national security. The Hill reported that Mr. Paul will file the lawsuit as a private citizen in the District Court of Washington. His office did not give the specific timeline for when the senator would file the suit but its potential impact could reverberate among Snowden's staunchest supporters. Mr. Paul's website already encourages individuals to "please sign below and join my class-action lawsuit and help stop the government's outrageous spying program on the American people." The most recent estimates show that tens of thousands of supporters will be potentially named as plaintiffs in the suit. Senator Chuck Schumer (D-N.Y.) disagrees with Mr. Paul and expressed concerns that if Mr. Snowden does not stand trial that the matter of free speech may not be as effectively addressed. UNIVERSAL PROTECTION: Sued for Failing to Pay Non-Exempt Employees ------------------------------------------------------------------ Michael Parnow and Shawn Lisenby and Bob Andrade and Gabriel Bautista and Saiy Az Abdul, on behalf of themselves and all others similarly situated v. Universal Protection Service LP, a California Limited Partnership; Universal Services of America, LP, a California Limited Partnership; Universal Services of America, Inc., a California Corporation and Does 1-10, Case No. 2:14-cv- 00064-DSF-RZ (C.D. Cal., January 3, 2014) arises out of Universal Protection Service LP's alleged systematic failure to pay its California non-exempt employees, including the Plaintiffs and the Class, as required by state law. The violations alleged in the complaint include failure to pay all regular wages owed and failure to indemnify employees for all necessary expenditures or losses incurred in direct consequence of the discharge of duties. Universal Protection Service LP is a privately-held company incorporated under the laws of the state of California. The Company's principal place of business is at Santa Ana, California. The Company is registered to do business in California, and, along with its parent, does business under the names Universal Protection Service LP, Universal Protection Service GP, Inc., Universal Protection Security Systems GP, Inc., Universal Services of America GP, Inc., Universal Services of America, Inc., and Universal Building Maintenance. The true names and capacities of the Doe Defendants are unknown to the Plaintiffs. The Plaintiffs are represented by: Robert W. Mills, Esq. Joshua D. Boxer, Esq. Corey B. Bennett, Esq. Robert Wade Mills, Esq. THE MILLS LAW FIRM 880 Las Gallinas Avenue, Suite 2 San Rafael, CA 94903 Telephone: (415) 455-1326 Facsimile: (415) 455-1327 E-mail: rwm@millslawfirm.com josh@millslawfrrm.com corey@millslawfirm.com lorna@millslawfirm.com - and - James A. Clark, Esq. Jonathan R. Gonzales, Esq. Renee N. Parras, Esq. TOWER LEGAL GROUP 1510 J Street, Suite 125 Sacramento, CA 95814 Telephone: (916) 361-6009 Facsimile: (916) 361-6019 E-mail: james.c1ark@towerlegalgroup.com jonathan.gonzales@towerlegalgroup.com renee.parras@towerlegalgroup.com URBAN OUTFITTERS: "Perez" Suit Transferred From S.D. to N.D. Cal. ----------------------------------------------------------------- Urban Outfitters, Inc., removed the purported class action lawsuit titled Perez v. Urban Outfitters, Inc., et al., Case No. 3:13-cv- 02870-BEN-RBB, from the United States District Court for the Southern District of California to the U.S. District Court for the Northern District of California (San Francisco). The Northern District of California Court Clerk assigned Case No. 3:14-cv- 00024-JSC to the proceeding. Jasmin Perez originally filed the lawsuit in the San Diego Superior Court, Central Division, and was assigned Case No. 37- 2013-00073549-CU-OE-CTL. According to a statement released by the Plaintiff's counsel, Blumenthal, Nordrehaug & Bhowmik, Urban Outfitters required their employees to submit to mandatory security searches before exiting the store for lunch breaks and at the end of their shifts, but while these employees had already timed out of Urban Outfitter's timekeeping system. The Complaint claims that the employees were subjected to Urban Outfitter's control during the mandatory loss prevention inspections, and as a result, should have been compensated for the time spent during the security searches. The Plaintiff is represented by: Norman B. Blumenthal, Esq. BLUMENTHAL, NORDREHAUG & BHOWMIK 2255 Calle Clara La Jolla, CA 92037 Telephone: (858) 551-1223 Facsimile: (858) 551-1232 E-mail: norm@bamlawlj.com The Defendants are represented by: Cheryl D. Orr, Esq. DRINKER BIDDLE & REATH LLP 50 Fremont Street, 20th Floor San Francisco, CA 94105 Telephone: (415) 591-7500 Facsimile: (415) 591-7510 E-mail: cheryl.orr@dbr.com VARIETY CHILDREN'S: Class Seeks Unpaid Overtime Wages and Damages ----------------------------------------------------------------- Daniel Severino v. Variety Children's Hospital, a Florida corporation, Arnoldo Pino, individually, and Carlos Duran, individually, Case No. 1:14-cv-20014-MGC (S.D. Fla., January 2, 2014) seeks unpaid overtime wages, liquidated damages or pre- judgment interest, post-judgment interest, reasonable attorney's fee and costs from the Defendants. Mr. Severino says he regularly worked in excess of 40 hours in one or more work weeks during his employment with the Defendants. However, he contends, the Defendants did not pay time and a half wages for all of the overtime hours he and other similarly situated employees worked for the Defendants. Variety Children's Hospital is a Florida corporation. Arnoldo Pino and Carlos Duran are residents of the state of Florida, who owned and operated Variety, where the Plaintiff was employed. The Plaintiff is represented by: Brian J. Militzok, Esq. MILITZOK & LEVY, P.A. The Yankee Clipper Law Center 3230 Stirling Road, Suite 1 Hollywood, FL 33021 Telephone: (954) 727-8570 Facsimile: (954) 241-6857 E-mail: bjm@mllawfl.com WELLS FARGO: Cleverly Conceals Auto Finance Charges, Suit Claims ---------------------------------------------------------------- James Okumu, an individual, on behalf of himself and all others similarly situated v. SW Corporation dba Cypress Motors, Wells Fargo Bank, N.A., a California corporation formerly known as Wells Fargo Dealer Services, Case No. 8:14-cv-00009-JLS-JPR (C.D. Cal., January 3, 2014) arises from Wells Fargo's alleged improper and deceptive financing practices. The Plaintiff alleges that Wells Fargo cleverly conceals finance charges within the terms of the Retail Installments Sales Contract during consumers' purchases of automobiles. SW Corporation, doing business as Cypress Motors, is engaged in the business of buying, repairing and re-selling used vehicles to the general public, and taking vehicles in trade. Wells Fargo Bank, N.A., formerly known as Wells Fargo Dealer Services, is a South Dakota Corporation registered to do business in California. Wells Fargo is a financial institution engaged in the business of acquiring and holding conditional sale contracts and collecting payments made by consumers pursuant to the contracts. The Plaintiff is represented by: Louis A. Liberty, Esq. Ian P. Otto, Esq. Alexander A. Guillen, Esq. LIBERTY & ASSOCIATES, A PLC 553 Pilgrim Drive, Suite A-1 Foster City, CA 94404 Telephone: (650) 341-0300 Facsimile: (650) 341-0302 E-mail: lou@carlawyer.com iotto@carlawyer.com alexguillen@carlawyer.com * Boilers, Weight-Lifting Benches Among Recently Recalled Products ------------------------------------------------------------------ The Associated Press reports that two lines of boilers that can emit excessive amounts of carbon monoxide were among last week's recalled consumer products, along with a free-weight bench that can collapse. Here's a more detailed look: BOILERS DETAILS: U.S. Boiler models ESC, PVG and SCG models. They are cast iron hot water boilers that use natural gas or liquid petroleum to heat water for residential space heating. The boilers are light blue in color with black trim, about 40 inches tall, about 26 inches deep and range from 12 to 31 inches wide. The model name and U.S. Boiler logo are on the front cover of the boiler. The front cover of the boiler is vented. Recalled boilers were made between December 2005 and February 2013. The model number, serial number and manufacturing date are located on a silver label on the top panel of ESC models and on the inside of PVG and SCG models on the right side panel. The manufacturing date appears in the upper right corner of the silver label in the MM/YYYY format. They were sold at Plumbing and heating wholesale distributors nationwide from December 2005 through February 2013. The following model numbers and serial number ranges are included in the recall: model numbers ESC3 through ESC9 with serial numbers 65249110 through 65382278, model numbers PVG3_P, PVG4_P and PVG5 through PVG9 with serial numbers 64870666 through 65385748; 97939433, and model numbers SCG3 through SCG9 with serial numbers35200197 and 65283322 through 65858729. WHY: The air pressure switch can fail to shut down the burners when there is a blockage in the vent system, allowing the boiler to emit excessive amounts of carbon monoxide and posing a CO poisoning hazard to the consumer. INCIDENTS: None reported. HOW MANY: About 26,000 in the U.S. and about 310 in Canada. FOR MORE: Call U.S. Boiler at 888-432-8887 or visit www.usboiler.net and click on CPSC Product Recall Announcement for more information. BOILERS DETAILS: New Yorker Boiler model PVCGA. They are cast iron hot water boilers that use natural gas or liquid petroleum to heat water for residential space heating. The boilers are green in color, about 38 inches tall and about 26 inches deep and range from 11 to 30 inches wide. The front cover of the boiler is vented and has the New Yorker Boiler logo. Recalled boilers were made between May 2012 and February 2013. The model number, serial number and manufacturing date are located on a silver label on the inside panel. The manufacturing date appears in the upper right corner of the silver label in the MM/YYYY format. They were sold at plumbing and heating wholesale distributors nationwide from July 2012 through Feb. 2013. The following model numbers and serial number ranges are included in this recall: model numbers PVCG50ANI, PVCG60ANI, PVCG70ANI, PVCG80ANI, PVCG90ANI, PVCG30API, PVCG40API, and PVCG50API. WHY: The air pressure switch can fail to shut down the burners when there is a blockage in the vent system, allowing the boiler to emit excessive amounts of carbon monoxide and posing a CO poisoning hazard to the consumer. INCIDENTS: None reported. HOW MANY: About 191. FOR MORE: Call New Yorker Boiler at 800-535-4679 or visit www.newyorkerboiler.com and click on CPSC Product Recall Announcement for more information. FREE WEIGHT BENCHES DETAILS: Olympic Decline free weight bench with model numbers 16060, 16061, and 16062. The model numbers can be found on the bottom of the tube near where the feet are placed with serial numbers C1208 through H0913 which stand for the manufacture dates, December 2008 through September 2013. They were sold by Cybex or its distributors directly to gyms from December 2008 through September 2013. WHY: The frame of the bench can collapse forward onto the user, posing fall and injury hazards. INCIDENTS: Nine reports of frames fatiguing near the weld point. No injuries were reported. HOW MANY: About 234. FOR MORE: Call Cybex at 888-678-3846 or visit www.cybexintl.com and click on Support for more information. * FDA Seeks Consumer Reports Related to Defective Tobacco Products ------------------------------------------------------------------ United Press International reports that officials at the U.S. Food and Drug Administration say they want to hear from people if they think a tobacco product is defective or causes a health issue. The Department of Health and Human Services' Safety Reporting Portal was revised to add a new category for tobacco products. It provides a standardized way for consumers and healthcare professionals to let the FDA know when they suspect that there is an unexpected health or safety issue with a specific tobacco product, officials said. Dr. Ii-Lun Chen, medical branch chief in the Office of Science at FDA's Center for Tobacco Products, said a new online tool can help report a problem. Until now, consumers reported problems with tobacco products to FDA via MedWatch, the FDA Safety Information and Adverse Event Reporting Program, a system that does not ask questions specific to tobacco products. "There is no known safe tobacco product, but FDA can play a role in helping prevent certain unexpected health consequences from tobacco products, such as those that occur from defective tobacco products, or health or safety problems beyond those normally associated with tobacco product use," Dr. Chen said in a statement. The FDA is interested in reports from consumers about tobacco products that are damaged, defective or contaminated, such as cigarettes containing mold. It could also be that a tobacco product just smells or tastes wrong Dr. Chen said. FDA also wants to know if tobacco product users have experienced an unexpected health or other safety problem that they believe has been caused by use of a particular tobacco product. These could include reports of fire caused by tobacco product use, burns or other injuries, accidental or unintended exposure of children, allergic reactions, poisonings and other toxicities, or an unusual reaction in a longtime user. * Recent Canada Supreme Court Decisions Clarify Certification Test ------------------------------------------------------------------ Matthew Fleming, Esq., and Ara Basmadjian, Esq., at Dentons Canada LLP, report that the Supreme Court of Canada's recent decisions in Pro-Sys Consultants Ltd v Microsoft Corporation,(1) Sun-Rype Products Ltd v Archer Daniels Midland Company(2) and Infineon Technologies AG v Option consommateurs(3) constitute a watershed moment in competition law in particular, and in class proceedings in general. This trilogy of decisions established that indirect purchasers -- that is, consumers who did not purchase products directly from the price fixer, but who purchased them indirectly from a reseller or other intermediary -- have a right of action against the alleged price fixer at the top of the distribution chain. The Supreme Court recognized indirect purchasers' "offensive" use of passing on, notwithstanding its rejection of the passing-on defense. However, the Supreme Court also established important limitations -- namely that: the plaintiffs must be able to 'self-identify' as a purchaser of the product subject to price-fixing; and the plaintiffs must demonstrate, likely through expert evidence, that damages can be proven on a class-wide basis. In addition, the Supreme Court also settled the question of the evidentiary burden on plaintiffs at the certification stage in class proceedings. The Supreme Court rejected a higher threshold based on an assessment of the merits of the claim in favor of a consideration of whether there is some basis in fact for the relevant elements of the certification test. Background In Pro-Sys the representative plaintiffs brought a class action against Microsoft Corporation and some of its affiliates claiming that the defendant unlawfully overcharged consumers for its Intel- compatible PC operating systems and related software. The proposed class consisted entirely of indirect purchasers. The British Columbia Supreme Court certified the action as a class proceeding, but a majority of the British Columbia Court of Appeal set aside the certification order and dismissed the claim on the basis that indirect purchasers had no cause of action. In Sun-Rype the proposed class members included both indirect and direct purchasers. The claim involved allegations that Archer Daniels Midland Company had participated in an illegal conspiracy to fix the price of high-fructose corn syrup (HFCS) -- a common sweetener used in soft drinks and baked goods. The British Columbia Supreme Court certified the action by direct and indirect purchasers as a class proceeding. The British Columbia Court of Appeal upheld the certification order in respect of direct purchasers, but overturned the order in respect of the indirect purchasers, holding that their pleadings did not disclose a valid cause of action. In Infineon the class members consisted of both indirect and direct purchasers. The plaintiffs brought an action against the respondent manufacturers based on allegations that they had engaged in a global anti-competitive conspiracy to inflate the price of the dynamic random-access memory chip used in a variety of electronic devices (eg, computers, mobile phones and digital cameras). The Quebec Superior Court dismissed the motion for authorization to institute a class action. The Quebec Court of Appeal overturned the decision of the motion judge and authorized the class action to proceed to trial. Analysis Rejection of passing-on defense The key question in each of the Supreme Court's decisions was whether the passing-on defense prohibited indirect purchasers from asserting claims. In price-fixing cases, the passing-on defense is often asserted by the defendant at the top of the distribution chain. As the Supreme Court noted in Pro-Sys: "it was invoked under the proposition that if the direct purchaser who sustained the original overcharge then passed that overcharge on to its own consumers, the gain conferred on the overcharger was not at the expense of the direct purchaser because the direct purchaser suffered no loss."(4) Therefore, the defendants to indirect purchaser claims argued that if the overcharge was simply passed on to subsequent consumers, the direct purchaser had no claim against the party responsible for the initial overcharge. The passing-on defense was rejected by the US Supreme Court in Hanover Shoe, Inc. v United Shoe Machinery Corp.(5) That decision precluded parties who were responsible for illegal overcharges from relying on the passing-on defense as a method of escaping liability in lawsuits commenced against them by direct purchasers. The Supreme Court of Canada also rejected the passing-on defense in Kingstreet Investments Ltd v New Brunswick (Finance),(6) which involved a claim for the recovery of ultra vires taxes charged on alcohol levied by the provincial government against the corporate operators of several nightclubs. In that case, the Supreme Court held that the province of New Brunswick could not reduce its liability for the illegal overcharge by demonstrating that the overcharge had been passed on to the corporate taxpayers' customers. The Supreme Court underscored three problems with the passing-on defense: "first, that it is inconsistent with the basic premise of restitution law; second, that it is economically misconceived; and third, that the task of determining the ultimate location of the burden of a tax is exceedingly difficult and constitutes an inappropriate basis for denying relief".(7) In Pro-Sys the Supreme Court confirmed that the passing-on defense was rejected in the context of all restitutionary cases and was not limited to the facts in Kingstreet.(8) Offensive use of passing on In Pro-Sys Microsoft argued that the indirect purchasers' use of passing on as the basis for their claim should be precluded as a "necessary corollary" of the rejection of the passing on defense.(9) In this regard, Microsoft relied on the decision of the US Supreme Court in Illinois Brick Co v Illinois .(10) In that case, the US Supreme Court prohibited the offensive use of passing on since "whatever rule [was] to be adopted regarding pass-on in antitrust damages actions, it must apply equally to plaintiffs and defendants".(11) The Supreme Court of Canada did not consider this argument to be persuasive. The Supreme Court concluded that although passing on as a defense is unavailable because of the policy objectives of restitution law, it does not follow that, for the purposes of symmetry, indirect purchasers are prohibited from claiming losses passed on to the chain of distribution.(12) The Supreme Court summarized its reasons as follows: "(1) The risks of multiple recovery and the concerns of complexity and remoteness are insufficient bases for precluding indirect purchasers from bringing actions against the defendants responsible for overcharges that may have been passed on to them. (2) The deterrence function of the competition law in Canada is not likely to be impaired by indirect purchaser actions. (3) While the passing-on defense is contrary to basic restitutionary principles, those same principles are promoted by allowing passing on to be used offensively. (4) Although the rule in Illinois Brick remains good law at the federal level in the United States, its subsequent repeal at the state level in many jurisdictions and the report to Congress recommending its reversal demonstrate that its rationale is under question. (5) Despite some initial support, the recent doctrinal commentary favors overturning the rule in Illinois Brick."(13) Thus, in the trilogy of decisions, the Supreme Court recognized that indirect purchasers have a claim against the price fixer that effectuated an overcharge even if the overcharge was passed on through the channels of distribution. Certification of class action The Supreme Court also took the opportunity to re-affirm important evidentiary principles at the certification stage of a class action. For the most part, the Canadian class actions regime is governed by provincial class proceedings legislation.(14) In recent years, the certification stage has generally become the most critical part of a class proceeding. This is where battle is squarely joined between the parties. Despite minor variations between some of the provinces, the courts will certify a class proceeding where: the pleadings disclose a cause of action; there is an identifiable class of two or more persons; the claims of the class members raise common issues; a class action is the preferable procedure for resolution of the dispute; and there is a valid representative plaintiff.(15) Once the pleadings disclose a valid cause of action, the remaining certification requirements set out above are subject to the standard of proof articulated by the Supreme Court in Hollick v Toronto (City)(16) -- that is, there must be "some basis in fact" for each element of the test.(17) This inquiry does not require determination of conflicting factual and evidentiary issues and does not involve consideration of the merits of the action. In Pro-Sys Microsoft argued that plaintiffs must establish that the proposed class action raises common issues and is the preferable procedure on a balance of probabilities standard. Microsoft also argued that the Supreme Court should adopt the US approach of making factual determinations at the certification stage on a preponderance of the evidence and should require judges to weigh the evidence, even if this overlaps with a determination of the merits. However, the Supreme Court re-affirmed that "Canadian courts have resisted the U.S. approach of engaging in a robust analysis of the merits at the certification stage".(18) In Canada, certification is a screening device to ensure that there are sufficient facts to persuade the applications judge that the claim should continue on a class basis.(19) In the context of indirect purchaser class actions, assessing whether the commonality issues meet the requisite standard can be a challenging endeavor, which often involves the use of expert evidence. At the certification stage, the Pro-Sys decision confirmed that the "expert methodology must be sufficiently credible or plausible" to offer "a realistic prospect of establishing loss on a class-wide basis so that, if the overcharge is eventually established at the trial of the common issues, there is a means by which to demonstrate that it is common to the class".(20) In both Pro-Sys and Infineon the Supreme Court permitted the actions by the indirect purchasers to continue as class proceedings. However, the Supreme Court refused to certify the class proceeding in Sun-Rype on the basis that an identifiable class of two or more persons could not be established. A majority of the Supreme Court determined that "there is insufficient evidence to show some basis in fact that two or more persons will be able to determine if they are in fact a member of the class".(21) The proposed class definition was inadequate because it was impossible to confirm whether the indirect purchasers acquired products containing HFCS as opposed to liquid sugar. Prominent direct purchasers, including The Coca-Cola Company and Pepsico, use both HFCS and liquid sugar interchangeably. Yet, the labels on the products sold by these direct purchasers often did not indicate which sweetener was used.(22) As the majority indicated, "[t]he problem in this case lies in the fact that indirect purchasers, even knowing the names of the products affected, will not be able to know whether the particular item that they purchased did in fact contain HFCS."(23) Thus, the Supreme Court established an important limitation on competition class actions by requiring plaintiffs to self-identify as purchasers of the actual product that has been subjected to price fixing. Comment In its trilogy of decisions, the Supreme Court confirmed that indirect purchasers have a cause of action against parties that engage in price-fixing schemes provided that they can self- identify as purchasers of the relevant product. Parties that engage in anti-competitive conduct now face potential class proceedings from both direct and indirect purchasers, thereby expanding the scope of their liability. In addition, the Supreme Court confirmed that the evidentiary burden on plaintiffs at the certification stage remains relatively low. The cases therefore represent a victory for consumers and plaintiff-side class action lawyers. * SCOTUS Limits Jurisdiction of Courts Over Dirty War Case v. MNCs ------------------------------------------------------------------ Marcia Coyle, writing for The National Law Journal, reports that in a case arising out of Argentina's "dirty war," the U.S. Supreme Court on Jan. 14 significantly limited the general jurisdiction of federal courts over injured victims' lawsuits against corporations doing business in the United States. The decision, according to legal observers on both sides of the case, means that a corporation, in effect, may be sued primarily where it is incorporated or in its principal place of business. For foreign corporations operating here, they added, the decision likely means never. Although the court did not shut the door on the possibility that general jurisdiction could be available somewhere other than the place of incorporation or principal place of business, "The burden is very high: proof of operations that are 'so substantial and of such a nature as to render the corporation at home in that State' and that are much more significant than the corporation's operations in other states or countries," said Andrew Pincus of Mayer Brown, amicus counsel on behalf of foreign banks supporting Daimler A.G. The justices unanimously ruled in Daimler v. Bauman that Daimler, headquartered in Stuttgart, Germany, may not be sued in California, where its Mercedes-Benz USA subsidiary operates, by Argentine victims of alleged human rights violations in Argentina 30 years ago. The victims alleged that a wholly owned subsidiary of Daimler -- Mercedes-Benz Argentina -- collaborated with state security forces during the "dirty war" in Argentina in the 1970s and 1980s. Under the country's military dictatorship, thousands of Argentines disappeared or were kidnapped, tortured or killed, among them the plaintiffs or their relatives. The federal district court dismissed their lawsuit for lack of jurisdiction. However, the U.S. Court of Appeals for the Ninth Circuit reversed, holding that Mercedes-Benz USA (MBUSA) was Daimler's "agent" for jurisdictional purposes and the court attributed the MBUSA's California contacts to Daimler. Writing for the high court, Justice Ruth Bader Ginsburg said that in deciding Goodyear Dunlop Tires v. Brown in 2011, the justices examined whether foreign subsidiaries of a U.S. parent corporation could be sued in state court for claims unrelated to any activity of the subsidiaries in the forum state. That case stemmed from a bus accident outside of Paris that killed two boys from North Carolina. The boys' parents sued in North Carolina and alleged that the bus' tire was defectively manufactured. A small percentage of tires manufactured by Goodyear's foreign subsidiaries were distributed in North Carolina. The Goodyear decision, she said, held that a court may assert general jurisdiction over a foreign corporation only when the corporation's contacts with the state in which the suit is brought are so constant and pervasive "as to render it essentially at home in the forum state." Instructed by Goodyear, she said, Daimler was not "at home" in California. "Here, neither Daimler nor MBUSA is incorporated in California, nor does either entity have its principal place of business there," she wrote. "If Daimler's California activities sufficed to allow adjudication of this Argentina-rooted case in California, the same global reach would presumably be available in every other State in which MBUSA's sales are sizable." Daimler's high court counsel, Thomas Dupree -- tdupree@gibsondunn.com -- of Gibson, Dunn & Crutcher, had urged the court during oral arguments in October to adopt the "at home" standard as a "clear, workable" rule for general jurisdiction. Some lawyers who followed the case closely called the high court decision "broad" and "dramatic," even though Judge Ginsburg said the standard may not apply in the "exceptional case" -- which she did not define. Justice Sonia Sotomayor concurred only in the judgment, writing that the decision was wrong as to both process and substance. "The problem, the Court says, is not that Daimler's contacts with California are too few, but that its contacts with other forums are too many," she wrote. "In recent years, Americans have grown accustomed to the concept of multinational corporations that are supposedly 'too big to fail'; today the Court deems Daimler 'too big for general jurisdiction.' " She chided the court for deciding the case on a ground that had neither been argued nor decided by the lower court and was raised for the first time by Daimler in a footnote to its brief. And, as for substance, she said, the court's focus on Daimler's operations outside of California "ignores the lodestar of our personal jurisdiction jurisprudence: A State may subject a defendant to the burden of suit if the defendant has sufficiently taken advantage of the State's laws and protections through its contacts in the State; whether the defendant has contacts elsewhere is immaterial." Justice Sotomayor said the "far simpler" ground for deciding the case was that, "no matter how extensive Daimler's contacts with California, that State's exercise of jurisdiction would be unreasonable given that the case involves foreign plaintiffs suing a foreign defendant based on foreign conduct, and given that a more appropriate forum is available." * Seyfarth Shaw Releases Annual Workplace Class Action Report ------------------------------------------------------------- Rebekah Mintzer, writing for Corporate Counsel, reports that the year 2013 has come and gone, but the trends that emerged in workplace class and collective action litigation during those 12 months probably won't be going anywhere fast. Experts at Seyfarth Shaw have released the latest version of an annual study that tracks these trends and provides detailed information on relevant litigation. The 2014 edition of Seyfarth Shaw's Annual Workplace Class Action Litigation Report, the only compendium of its kind published in the U.S., covers 1,123 class action rulings falling under numerous workplace laws. Among many of the important trends covered, the report revealed that in 2013, wage and hour class actions were on the rise and are expected to continue increasing in the new year. "Right now, that is where I think corporate compliance ought to be focusing its efforts, because that will have the greatest impact in terms of keeping a corporation out of harm's way when it comes to workplace-type exposures and liabilities," Gerald Maatman Jr., cochair of the Class Action Litigation Practice Group at Seyfarth Shaw, told CorpCounsel.com. Mr. Maatman is general editor of the report. In 2013, the report revealed, wage and hour class actions increased over 2012, while other categories of class actions remained flat. The number of class actions filed under the Fair Labor Standards Act (FLSA) jumped from 7,672 in 2012 to 7,882 in 2013. In contrast, Employee Retirement Income Security Act (ERISA) class actions dropped from 7,908 in 2012 to 7,279 in 2013. This increase in wage and hour litigation versus other areas of workplace law is likely caused in no small part by the troubled economy. However Mr. Maatman said another contributing factor is the interpretations of a landmark pro-employer ruling from 2011 -- the Wal-Mart Stores Inc. v. Dukes decision from the U.S. Supreme Court -- which has discouraged class action suits in other areas of employment law, but has had less weight in wage and hour cases. "The Dukes ruling and other key class action rulings aren't being applied as consistently and defensive-mindedly in the wage and hour area," said Mr. Maatman. The report explains that Dukes has cast a long shadow over the workplace class action environment since the decision was handed down in June 2011. The decision concluded that female employees of Wal-Mart stores across the U.S. could not bring a gender discrimination class action against the retailer, because the class could not be certified under Rule 23 of the Federal Rules of Civil Procedure. According to the report, as of the end of 2013, the decision had been cited 561 times over the course of the year in lower federal and state court rulings. Mr. Maatman noted that employers should also keep a close eye on growing enforcement actions from the government in the employment space, particularly from the U.S. Equal Employment Opportunity Commission (EEOC). More charges were filed with the commission in 2013, the report said, than in all but three years since the EEOC was founded in 1964. The commission has also expanded its systemic investigation program, which targets large groups of potential plaintiffs. Although the plaintiffs bar continues to pursue plenty of class action employment discrimination claims, Mr. Maatman said that the government is often more emboldened to fight for the "the biggest numbers possible" in employment discrimination settlements due to a strong drive for positive press. Another theme in the workplace class action arena during 2013 that was cited by the report was class arbitration and the use of arbitration agreements by employers to prevent employees from bringing class action suits. Several federal courts, along with the Supreme Court in American Express Co. v. Italian Colors Restaurant and AT&T Mobility v. Concepcion, handed down decisions that support the use of carefully written arbitration agreements. Mr. Maatman said he believes that with these developments in the courts, employers who used to think the agreements were "too risky" just a few years ago will be more likely to consider implementing their own in 2014. * * * Daniel Fisher, writing for Forbes, reports that employers used recent Supreme Court rulings to shrink employment-discrimination lawsuits and settlements in 2013, but plaintiff lawyers are busy retooling their strategies to win class-action status for their suits -- and the rich payouts that almost always follow. New plaintiff strategies, combined with the Obama administration's aggressive litigation agenda, mean employers may face an expensive 2014 as they battle wage-and-hour suits by private attorneys and mass discrimination complaints filed by the Labor Department. A report by employment lawyers Seyfarth Shaw found that discrimination suits fell 14% to 12,311 in 2013, and settlements, while up from 2012, were inflated by a single mass settlement that Merrill Lynch paid out after losing a crucial appeals-court ruling. Absent Merrill's $160 million settlement, payouts would have been the second-lowest since 2006. "Settlements are smaller across the board," said Gerald Maatman, a partner in Seyfarth's Chicago office. "Nationwide mega-cases where employers would spend $20 million to $60 million, those just don't exist anymore." The main reason is a series of Supreme Court rulings that have made it harder for plaintiff lawyers to gain court certification of a class of employees who supposedly all suffered from the same discriminatory practices. Another line of cases has reaffirmed the power of companies to block class actions with agreements requiring customers and employees to settle their complaints in arbitration. Combined, they remove a lot of the leverage plaintiff lawyers had to negotiate settlements with companies long before cases ever go to trial. Class-action lawyers have suffered mightily at the Supreme Court in recent years, and many shifted to employment litigation after securities and consumer class actions became tougher to pursue. They've rebooted their strategy in the wake of Wal-Mart and Comcast, Mr. Maatman said, focusing on wage-and-hour suits under the Fair Labor Standards Act, which has different class- certification procedures that can in some cases be easier to navigate. They also won a huge victory with McReynolds v. Merrill Lynch, in which the Seventh Circuit Court of Appeals sidestepped Wal-Mart to allow a class trial on the question of whether Merrill's companywide policies fostered racial discrimination against African-American brokers. Plaintiff lawyers still would have been forced to prove damages for each individual plaintiff, but facing years of expensive litigation, Merrill settled. Mr. Maatman said plaintiff lawyers will seize upon the Seventh Circuit's reasoning to hone their cases in search of some issue that can be tried on a classwide basis. The strategy is to "certify something, and then hold on for dear life." How can companies defend themselves? Arbitration clauses prohibiting class actions are useful, and employers can encourage them by paying employees a bonus to sign, Mr. Maatman said. But nationwide employers should model their contracts on California law, which is more employee-friendly, because lawyers will gravitate to the states that are the most hospitable for suit. Employers also must wrestle with the implications of technology on wage-and-hour suits. Some are prohibiting employees from using company e-mail after hours, for example, to try and prevent overtime lawsuits. The problem for employers is determining who can work on their own schedule and who must be restricted to an 8-hour day. ********* 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 G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2014. 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 * * *