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/raid1/www/Hosts/bankrupt/CAR_Public/140526.mbx C L A S S A C T I O N R E P O R T E R Monday, May 26, 2014, Vol. 16, No. 103 Headlines ACHILLION PHARMACEUTICALS: Consolidated Case in Conn. Now Closed AMERICAN APPAREL: July 28 Settlement Fairness Hearing Set AMERISOURCEBERGEN CORP: Gains $22.7MM from Antitrust Settlements AUTOZONE INC: Ninth Circuit Revives Overtime Class Action BCB BANCORP: Pamrapo Bancorp Seeks to Resolve "Kube" Litigation BP PLC: Appeals Court Refuses to Reconsider Settlement Ruling BRIDGESTONE RETAIL: 8th Cir. Affirms Fee Class Action Dismissal BURGER KING: Court Tosses Motion to Dismiss "Clogg" Suit CARRIAGE SERVICES: June 23 Hearing Set on "Leathermon" Settlement CITIBANK NA: Sued for Violating Telephone Consumer Protection Act CLIENT SERVICES: Accused of Violating FDCPA in E.D. New York CLIFFS NATURAL: Two Law Firms File Securities Class Action CME GROUP: $550MM Bankruptcy Trustee Guaranty to be Extinguished COGENT COMMUNICATIONS: Faces Overtime Class Action in California COMMUNITY HEALTH: Tenn. Court Mulls Motion to Junk Stock Lawsuit COMMUNITY HEALTH: Awaits Ruling on Motion to Dismiss Suit v. HMA COMMUNITY HEALTH: Court Dismisses Lawsuit by HMA Stockholders CONNECTICUT GENERAL: Renewed Class Cert. Bid in "Franco" Denied CRANE CO: Appeals Court Affirms Jury Verdict in Asbestos Suit CROWDFLOWER INC: Bid for Approval of FLSA Suit Settlement Denied DELTA APPAREL: No Certification Yet for Cal. Wage & Hour Suit DETOUR GOLD: To Vigorously Defend Securities Class Action DIAMOND FOODS: Removed "Hall" Suit to Northern District of Cal. DOCTOR REHAB: Removed "Rodriguez" Class Suit to S.D. Florida DUN & BRADSTREET: Discovery Ongoing in O&R Antitrust Suit DUN & BRADSTREET: Files Motion to Transfer Die-Mension Lawsuit DUN & BRADSTREET: Response in Suit Over CreditBuilder Due May 27 FIRST SOLAR: Certified Securities Lawsuit Continues in Arizona FIVE STAR CARTING: Suit Seeks to Recover Unpaid Overtime Wages FORD MOTOR: Causation Theory Doesn't Apply in Asbestos Suit FOSTER WHEELER: Faces Shareholder Lawsuits in Texas, New Jersey FTS USA: Suit Seeks to Recover Unpaid Overtime Wages and Damages GENERAL MOTORS: Faces "Emerson" Suit Over Ignition Switch Defect GENERAL MOTORS: Has Invaded Class Members' Privacy, Suit Claims GENERAL MOTORS: Livingston Woman Files Ignition Switch Class Suit GENERAL MOTORS: Gets $35MM Fine Over Ignition Switch Defect GOODMAN GLOBAL: Faces Class Action Over Defective Air Conditioners GOOGLE INC: Unit Recalls 440,000 Smoke Detectors in U.S. ICAHN ENTERPRISES: N.Y. Court Grants Motion to Dismiss "Silsby" INTERNATIONAL PAPER: Bristol Park Community Sue Over Flooding HEARTLAND PAYMENT: July Hearing Set in Bid to Junk Customer Suit KBR INC: Faces "Kohut" Suit Alleging Securities Law Violations KERR MCGEE: Removed "Whisenant" Class Suit to W.D. Oklahoma LADENBURG THALMANN: Dismissal of Securities Lawsuit Under Appeal LADENBURG THALMANN: Inks MoU to Settle Calif. Securities Suit MARRIOTT VACATIONS: Removed "Desantis" Suit to M.D. Florida METHODIST HOSPITAL: Sued for Failing to Properly Pay Employees MORTGAGE ELECTRONIC: Dist. Ct. Ruling in "Curtone" Suit Reversed NATIONAL SPORTS: Has Sent Unsolicited Text Messages, Suit Says NBN COMMERCIAL: Has Refused to Pay Overtime Wages, Suit Claims NEVADA: To Discuss Class Action Over Health Insurance Exchange OPPENHEIMER CALIFORNIA: July 31 Settlement Fairness Hearing Set PAIN THERAPEUTICS: Certified Securities Suit Continues in Texas PEPCO HOLDINGS: Faces Suit Over Proposed Merger with Exelon PLIMUS INC: Renewed Class Cert. Motion in "Yordy" Suit Denied POWER BALANCE: Case Mgmt. Conf. in CFC Suit Reset to June 2014 QEP RESOURCES: Appeal Court Reinstates Claims in Gatti v. La. QEP RESOURCES: "Gagne" Plaintiffs Pursue Class Status QUICKEN LOANS: Faces Class Action in Florida Over TCPA Violations SEALED AIR: Grace Suit Over Asbestos-Containing Products Junked SELECTION MANAGEMENT: Removed "Greco" Suit to S.D. California SPRINT CORP: 3rd Cir. Affirms Ruling in Sales Practices Case TASTEE KREME: Does Not Pay Delivery Drivers Overtime, Class Says TELEXFREE INC: Gardy & Notis Files Class Action in Massachusetts TELLABS INC: Faruqi & Faruqi Files Class Action in Illinois TRANSWORLD SYSTEMS: Court Denies Motion to Dismiss FDCPA Suit UDREN LAW: Faces Suit Over Violations of Fair Debt Collection Act ULTIMATE SOFTWARE: Sued by Class of UPMC Workers Over Data Breach UMPQUA HOLDINGS: Uncertain on Effect of Antitrust Suit Accord UMPQUA HOLDINGS: Bank Reaches Settlement in "Hawthorne" Lawsuit UMPQUA HOLDINGS: Has MoU to Settle Suit Over Sterling Merger UMPQUA HOLDINGS: Sterling Moves to Dismiss Wash. Securities Suit UNITED HEALTHCARE: Removed "Roberts" Suit to C.D. California WELLS FARGO: Court Stays "Heinrichs" Class Action * Automakers More Sensitive to Safety Issues After GM Recalls * Number of Securities Class Action Rises, Lockton's Report Says ********* ACHILLION PHARMACEUTICALS: Consolidated Case in Conn. Now Closed ---------------------------------------------------------------- The United States District Court for the District of Connecticut closed the consolidated class action lawsuit against Achillion Pharmaceuticals, Inc., according to the company's May 7, 2014, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2014. On May 5, 2014, the lead plaintiffs in the previously disclosed consolidated class action lawsuit originally filed in October 2013 against the Company and certain of its current and former officers in the United States District Court for the District of Connecticut voluntarily dismissed all of their claims without prejudice. The Court approved the Notice and closed the case on May 6, 2014. A dismissal without prejudice does not prevent the litigation of the same claims in a subsequent action. AMERICAN APPAREL: July 28 Settlement Fairness Hearing Set --------------------------------------------------------- The following statement is being issued by Kessler Topaz Meltzer & Check, LLP regarding the American Apparel Securities Litigation: IN RE AMERICAN APPAREL, INC. SHAREHOLDER LITIGATION Case No. CV-10-6352 MMM (JCG) (Consolidated) This Document Relates To: All Actions SUMMARY NOTICE OF PENDENCY AND PROPOSED SETTLEMENT OF CLASS ACTION, MOTION FOR ATTORNEYS' FEES AND LITIGATION EXPENSES, AND SETTLEMENT FAIRNESS HEARING TO: ALL PERSONS AND ENTITIES WHO PURCHASED OR OTHERWISE ACQUIRED THE PUBLICLY TRADED COMMON STOCK OF AMERICAN APPAREL, INC. BETWEEN NOVEMBER 28, 2007 AND AUGUST 17, 2010, INCLUSIVE (THE "CLASS"). YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules of Civil Procedure and Order of the Court, that the above- captioned action has been certified as a class action for purposes of settlement only and that a settlement for Four Million Eight Hundred Thousand Dollars ($4,800,000) has been proposed. A hearing will be held before the Honorable Margaret M. Morrow in the United States District Court for the Central District of California, U.S. Courthouse, 255 East Temple Street, Los Angeles, California 90012, Courtroom 780, at 10:00 a.m., on July 28, 2014 to determine whether: (1) the proposed Settlement should be approved as fair, reasonable and adequate; (2) the proposed Plan of Allocation should be approved as fair and reasonable; (3) Lead Counsel's application for an award of attorneys' fees and reimbursement of Litigation Expenses should be approved; (4) Lead Plaintiff's application for reimbursement of reasonable costs and expenses (including lost wages) in connection with representing the Class should be approved; and (5) the Action should be dismissed with prejudice against Defendants, and the releases specified and described in the Stipulation and Agreement of Settlement dated January 17, 2014 should be granted. IF YOU ARE A MEMBER OF THE CLASS DESCRIBED ABOVE, YOUR RIGHTS WILL BE AFFECTED AND YOU MAY BE ENTITLED TO SHARE IN THE SETTLEMENT FUND. If you have not yet received the full printed Notice of Pendency and Proposed Settlement of Class Action, Motion for Attorneys' Fees and Litigation Expenses, and Settlement Fairness Hearing (the "Notice") and Proof of Claim and Release form ("Claim Form"), you may obtain copies of these documents by contacting the Claims Administrator: American Apparel, Inc. Shareholder Litigation, c/o Gilardi & Co, LLC, P.O. Box 8040, San Rafael, CA 94912-8040, (877) 263-8642. Copies of the Notice and Claim Form can also be downloaded from the website, www.americanapparelshareholdersettlement.com. If you are a Class Member, in order to be eligible to receive a payment under the proposed Settlement, you must submit a Claim Form postmarked no later than September 2, 2014. If you are a Class Member and do not submit a proper Claim Form, you will not be eligible to share in the distribution of the net proceeds of the Settlement but you will nevertheless be bound by any judgments entered by the Court in this Action. If you are a Class Member, you have the right to object to the proposed Settlement, the proposed Plan of Allocation, the request by Lead Counsel for an award of attorneys' fees and Litigation Expenses and/or Lead Plaintiff's request for reimbursement of costs and expenses. Any objections must be filed with the Court and delivered to Lead Counsel and Defendants' Counsel such that they are received no later than July 7, 2014, in accordance with the instructions set forth in the Notice. If you are a Class Member, you also have the right to exclude yourself from the Class. Requests for exclusion must be submitted to the Claims Administrator such that they are received no later than July 7, 2014, in accordance with the instructions set forth in the Notice. If you are a Class Member and do not exclude yourself from the Class, you will be bound by any judgments entered by the Court in this Action. PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING THIS NOTICE. Inquiries, other than requests for the forms of the Notice and Claim Form, may be made to Lead Counsel: Eli R. Greenstein, Esq. Stacey M. Kaplan, Esq. Kessler Topaz Meltzer & Check, LLP One Sansome Street, Suite 1850 San Francisco, CA 94104 Jennifer L. Enck, Esq. Kessler Topaz Meltzer & Check, LLP 280 King of Prussia Road Radnor, PA 19087 Further information may also be obtained by directing your inquiry in writing to the Claims Administrator, Gilardi & Co, LLC, at the address listed above, or by visiting the website, www.americanapparelshareholdersettlement.com Dated April 16, 2014 BY ORDER OF THE COURT UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA AMERISOURCEBERGEN CORP: Gains $22.7MM from Antitrust Settlements ---------------------------------------------------------------- During the three and six months ended March 31, 2014, Amerisourcebergen Corporation recognized gains of $0.8 million and $21.9 million, respectively, as member of the direct purchasers' class that settled a suit against pharmaceutical manufacturers, according to the company's May 7, 2014, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2014. Numerous class action lawsuits have been filed against certain brand pharmaceutical manufacturers alleging that the manufacturer, by itself or in concert with others, took improper actions to delay or prevent generic drugs from entering the market. The Company has not been named a plaintiff in any of these class actions, but has been a member of the direct purchasers' class (i.e., those purchasers who purchase directly from these pharmaceutical manufacturers). None of the class actions have gone to trial, but some have settled in the past with the Company receiving proceeds from the settlement funds. During the three and six months ended March 31, 2014, the Company recognized gains of $0.8 million and $21.9 million, respectively, relating to the class action lawsuits. During the three and six months ended March 31, 2013, the Company recognized gains of $3.5 million and $15.8 million, respectively, relating to the class action lawsuits. These gains, which are net of attorney fees and estimated payments due to other parties, were recorded as reductions to cost of goods sold in the Company's consolidated statements of operations. AUTOZONE INC: Ninth Circuit Revives Overtime Class Action --------------------------------------------------------- Allissa Wickham and Beth Winegarner, writing for Law360, report that the Ninth Circuit on May 12 revived a class action accusing car parts company AutoZone Inc. of misclassifying store managers as exempt from overtime pay, finding that the case contained conflicting evidence about the importance of the employees' managerial duties. The three-judge appeals panel found that an Arizona district court court had improperly granted summary judgment to AutoZone because the case was still plagued by factual disputes over the significance of the plaintiffs' management tasks, relative to their customer service and manual labor duties. "Given that factual disputes remain as to whether the primary duty of [store managers] is management . . . we reverse the ruling of the lower court and remand for further determination of these issues," the appeals court wrote. The panel, which included U.S. District Judge Barbara Lynn sitting by designation, also said the suit contained conflicting evidence about the difference in pay given to store managers and nonexempt employees, as well as the extent to which store managers are supervised. The finding reverses a grant of summary judgment to AutoZone in 2012 by U.S. District Judge Frederick Martone, who ruled that although the store managers spent significant time on nonexempt tasks, their primary duty was still management. The store managers therefore qualified as "bona fide executives" who are exempted from overtime under the Fair Labor Standards Act, the judge ruled. "Lack of creativity and overwork may be an undesirable by-product of working for a national chain in a struggling economy, but this does not entitle plaintiffs to overtime pay if AutoZone properly classified the [store manager] position as exempt," Judge Martone wrote. The case was brought in Arizona federal court in July 2010 by AutoZone store manager Michael Taylor, who alleged that managers regularly worked more than 50 hours a week but weren't deemed eligible for overtime, despite having duties very similar to nonexempt employees. Prior to granting judgment to Autozone, Judge Martone conditionally certified an opt-in class of all AutoZone store managers employed outside of California from May 24, 2008, to May 24, 2011. Approximately 1,400 current and former AutoZone store managers opted in to the class, according to the plaintiffs' attorneys. On appeal, the plaintiffs claimed that the district court had stumbled by drawing factual inferences in AutoZone's favor, since the auto parts company was the moving party for summary judgment. The plaintiffs also argued that store managers could not be classified as exempt because they were closely monitored by district managers with more hiring and firing power, were responsible more for customer service and manual labor than management and received payments that were the same or less than nonexempt employees when their salaries were divided by actual hours worked. "The district court construed these facts as 'an undesirable by- product of working for a national chain in a struggling economy,' but this ignores evidence that AutoZone's treatment of [store managers] is not incidental at all but rather a 'core business strategy,'" the plaintiffs argued in their opening brief to the Ninth Circuit. At oral arguments in November, an attorney for AutoZone shot back that store managers are "first and foremost" responsible for a store's operation, even if they do regularly work with customers. "They're directing and managing staff. If we didn't have a manager in those stores, we wouldn't achieve corporate goals," said Andrew Voss of Littler Mendelson PC, on behalf of AutoZone. Mr. Voss also emphasized that store managers are eligible for bonuses that other employees aren't. But the Ninth Circuit remained unconvinced, finding there was conflicting evidence as to the frequency with which store managers make hiring and firing recommendations, and the extent to which their supervisors rely on those suggestions. The appeals court's decision comes on the heels of a newly filed U.S. Equal Opportunity Employment Commission suit against AutoZone, which accused the auto parts retailer of violating the Americans with Disabilities Act by firing employees who took too much time off related to their disabilities. U.S. Circuit Judges John T. Noonan and Paul J. Watford and U.S. District Judge Barbara Lynn sat on the panel for the Ninth Circuit. The plaintiffs are represented by Thomas David Copley -- dcopley@kellerrohrback.com -- Mark Dudley Samson -- msamson@kellerrohrback.com -- and Ryan McDevitt -- rmcdevitt@kellerrohrback.com -- of Keller Rohrback LLP and by Samuel Solomon Deskin of Deskin Law Offices. AutoZone Inc. is represented by Laurent R.G. Badoux of Greenberg Traurig LLP and Andrew James Voss of Littler Mendelson PC. The case is Michael Taylor et al. v. AutoZone Inc. et al., case number 12-15378, in the U.S. Court of Appeals for the Ninth Circuit. BCB BANCORP: Pamrapo Bancorp Seeks to Resolve "Kube" Litigation --------------------------------------------------------------- The parties in the suit Kube v. Pamrapo Bancorp, Inc. have conferenced in an effort to resolve this case, according to BCB Bancorp, Inc.'s May 7, 2014, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2014. The Company, as the successor to Pamrapo Bancorp, Inc., and in its own corporate capacity, is a named defendant in a shareholder class action lawsuit, Kube v. Pamrapo Bancorp, Inc., et al., filed in the Superior Court of New Jersey, Hudson County, Chancery Division, General Equity. On May 9, 2012, the Company obtained partial summary judgment, dismissing three of the five Counts of the Complaint. On May 9, 2012, plaintiff's counsel was awarded interim legal fees of approximately $350,000. The Company's obligation to pay that amount has been stayed. By Order, dated December 10, 2013, the court denied the plaintiff's initial motion for class certification. The plaintiff thereafter filed a motion seeking certification for a substantially reduced class. That motion was granted on February 6, 2014. The Company filed a motion for summary judgment, seeking the dismissal of the remaining two Counts of the Complaint. That motion was denied on February 19, 2014. The parties have conferred in an effort to resolve this case. A final resolution is being pursued. The Company is vigorously defending its interests in this litigation. BP PLC: Appeals Court Refuses to Reconsider Settlement Ruling ------------------------------------------------------------- Amanda Bronstad, writing for The National Law Journal, reports that a federal appeals court's decision not to reconsider its previous decisions in appeals involving the Deepwater Horizon oil- spill settlement means that BP PLC must pin its hopes on the U.S. Supreme Court. An en banc panel of the U.S. Court of Appeals for the Fifth Circuit on May 19 refused to rehear a pair of appeals involving administration of the agreement, which BP now pegs at $9.2 billion. BP alleges that claims administrator Patrick Juneau has misinterpreted the settlement's terms so that businesses with no economic damages tied to the 2010 spill are collecting billions of dollars. The Fifth Circuit, ruling on both appeals, concluded that both sides had agreed upon specific criteria in the settlement's terms -- such as claimants' proximity to the spill and certain mathematical formulas -- to determine who gets paid. Mr. Juneau's policies, the panel found, are in line with those terms. Those criteria, Circuit Judge Leslie Southwick wrote, were "the compromise reached by the parties on how an extremely difficult part of the claims process was to be handled." Mr. Juneau's policies interpreting those terms clarified "that the compromise still controls even when its accuracy as a substitute for direct evidence of causation as to a particular claim is questionable." BP spokesman Geoff Morrell said in a written statement: "BP is disappointed that the full Fifth Circuit will not be considering the divided panel decisions relating to the compensation of claims for losses that have no apparent connection to the spill. The company is considering its legal options." BP, which has three months to petition the U.S. Supreme Court, found some support in dissents written by Justice Edith Brown Clement in both appeals. Of the 13 judges on the en banc court, she and four others voted to rehear both appeals. "While our en banc court had the opportunity to address and clarify this issue for our circuit, confused as it was by two separate panel opinions on one essential, constitutional issue, it has declined to do so," she wrote. "Admittedly, even this articulation would not have been enough for our sister circuits considering the deep split on this issue. Another court surely must resolve this." Although the U.S. Supreme Court has been inclined to review cases dealing with class certification, a potential petition by BP would be a long shot, said David Logan, dean of Roger Williams University School of Law in Bristol, R.I., who specializes in torts. "It would be an unusual case to end up before the U.S. Supreme Court, even though clearly there's a robust group of judges on the Fifth Circuit who think the case was decided incorrectly," he said. "In the end, the chances are BP is going to swallow hard and recognize the contract they entered into was a bad one and they have to live with it." If the Supreme Court doesn't take the case, the claims process moves forward. In a written statement, plaintiffs lawyers Stephen Herman of Herman Herman & Katz in New Orleans and James Roy -- jimmyd@wrightroy.com -- of Domengeaux Wright Roy & Edwards of Lafayette, La., co-lead counsel for the class members in the settlement, said: "We are pleased that the court of appeals agreed that BP must honor its contract." BRIDGESTONE RETAIL: 8th Cir. Affirms Fee Class Action Dismissal --------------------------------------------------------------- Kira Lerner, writing for Law360, reports that the Eighth Circuit on May 13 upheld the dismissal of a putative class action alleging tire company Bridgestone Retail Operations LLC deceived customers by charging them an additional supply fee, finding that at least a portion of the fee pays for supplies. The appeals court panel affirmed the Missouri district court's summary judgment order in favor of Bridgestone in plaintiff Patricia Toben's suit alleging the company violated the Missouri Merchandising Practices Act by charging a supply fee that is actually for profit and not supplies, according to the order. "The undisputed evidence shows that the fee covers costs for a variety of shop supplies," the order said. "The fee, therefore, is not an unfair or deceptive practice under the MMPA." Ms. Toben's complaint alleged that Bridgestone charged her a $1.20 shop supply fee when she brought her vehicle to its store for a tire replacement. The fee was explained on placards in the store, but Ms. Toben alleged the fee is still misleading because the money is used for profit. In its motion for summary judgment, Bridgestone argued that Ms. Toben did not review the shop supply fee disclosures before Bridgestone serviced her vehicle and the company did not misrepresent its fees because they were adequately disclosed, according to the order. Bridgestone also said charging a shop supply fee is not illegal, nor is it illegal to make a profit off the fee if that information is disclosed. The court granted Bridgestone's motion, but Ms. Toben argued on appeal that the district court erred in granting the motion before discovery. "Because Bridgestone discloses that the fee is intended partly for profit, the court found additional discovery unnecessary," the Eight Circuit order said. According to the appeals court order, Bridgestone identified over 70 examples of shop supplies covered by the fee, and Ms. Toben has not proven that she'd be able to contradict the company given additional discovery. Further discovery would be a waste of judicial resources, the appeals court said. The appeals court also shot down Ms. Toben's argument that it erred in granting Bridgestone's summary judgment motion before ruling on her motion for class certification. Ms. Toben is represented by Alicia A. Campbell, John E. Campbell and Erich Vieth of Campbell Law LLC. Bridgestone is represented by Simon B. Auerbach -- simon.auerbach@hklaw.com -- Martin G. Durkin Jr. -- martin.durkin@hklaw.com -- and Colin P. Smith -- colin.smith@hklaw.com -- of Holland & Knight LLP and Kurt A. Schmid -- kschmid@bjpc.com -- and Joseph R. Swift -- jswift@bjpc.com -- of Brown & James PC. The case is Patricia Toben et al. v. Bridgestone Retail Operations LLC, case number 13-3329, in the U.S. Court of Appeals for the Eight Circuit. BURGER KING: Court Tosses Motion to Dismiss "Clogg" Suit -------------------------------------------------------- Jay Clogg Realty Group, Inc. brought a purported class action under the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. Section 227, alleging that Defendant Burger King Corp. sent improper and unsolicited facsimile advertisements to members of the purported plaintiff class. Defendant moved to dismiss the complaint or to strike the class allegations, arguing that Plaintiff has failed to state a claim and that, in any event, claims under the TCPA are not amenable to class relief. "Because I find that there is nothing in the TCPA that precludes a class action, the motion to dismiss is denied," District Judge Paul W. Grimm ruled in his a memorandum opinion dated April 16, 2014, a copy of which is available at http://is.gd/u1cuf0from Leagle.com. Judge Grimm further held that Defendant's Motion to Dismiss or Strike Plaintiff's Class Allegations is denied. The Plaintiff's Motion for Class Certification is denied with leave to refile once Plaintiff obtains adequate factual support for its motion. The Defendant must answer the Plaintiff's Complaint within the time required by Fed. R. Civ. P. 12, he added. The case is JAY CLOGG REALTY GROUP, INC., Plaintiff, v. BURGER KING CORP., Defendant, CASE NO. PWG-13-662, (D. Md.). Jay Clogg Realty Group, Inc, Plaintiff, represented by Edward A Broderick -- ted@broderick-law.com -- Broderick Law PC, Matthew P McCue -- mmccue@massattorneys.net -- The Law Office of Matthew P McCue & Stephen Howard Ring -- shr@ringlaw.us -- Stephen H Ring PC. Burger King Corporation, Defendant, represented by Daniel Scott Blynn -- dblynn@kelleydrye.com -- Kelley Drye and Warren LLP. CARRIAGE SERVICES: June 23 Hearing Set on "Leathermon" Settlement ----------------------------------------------------------------- A final hearing is scheduled to take place on June 23, 2014 to reject or approve a settlement reached in Leathermon, et al. v. Grandview Memorial Gardens, Inc., et al., Case No. 4:07-cv-137, pending in the United States District Court, Southern District of Indiana, according to Carriage Services, Inc.'s May 7, 2014, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2014. On August 17, 2007, five plaintiffs filed a putative class action against the current and past owners of Grandview Cemetery in Madison, Indiana, including the company's subsidiaries that owned the cemetery from January 1997 until February 2001, on behalf of all individuals who purchased cemetery and burial goods and services at Grandview Cemetery. Plaintiffs are seeking monetary damages and claim that the cemetery owners performed burials negligently, breached Plaintiffs' contracts and made misrepresentations regarding the cemetery. The Plaintiffs also allege that the claims occurred prior, during and after the company owned the cemetery. On October 15, 2007, the case was removed from Jefferson County Circuit Court, Indiana to the Southern District of Indiana. On April 24, 2009, shortly before the Defendants had been scheduled to file their briefs in opposition to Plaintiffs' motion for class certification, Plaintiffs moved to amend their complaint to add new class representatives and claims, while also seeking to abandon other claims. The company, as well as several other Defendants, opposed Plaintiffs' motion to amend their complaint and add parties. In April 2009, two Defendants moved to disqualify Plaintiffs' counsel from further representing Plaintiffs in this action. On June 30, 2010, the Court granted Defendants' motion to disqualify Plaintiffs' counsel. On May 6, 2010, Plaintiffs filed a petition for writ of mandamus with the Seventh Circuit Court of Appeals seeking relief from the trial court's order of disqualification of counsel. On May 19, 2010, the Defendants responded to the petition of mandamus. On July 8, 2010, the Seventh Circuit denied Plaintiffs' petition for writ of mandamus. Thus, pursuant to the trial court's order, Plaintiffs were given 60 days from July 8, 2010 in which to retain new counsel to prosecute this action on their behalf. Plaintiffs retained new counsel and Plaintiffs' counsel moved for leave to amend both the class representatives and the allegations stated within the complaint. Defendants filed oppositions to such amendments. The Court issued an order permitting the Plaintiffs to proceed with amending the class representatives and a portion of their claims; however, certain of Plaintiffs' claims have been dismissed. The parties have now reached a proposed class settlement and the Court has granted its preliminary approval of such settlement by order dated March 19, 2014. As such, notice of the class settlement shall be provided pursuant to the Preliminary Order Approving Class Action Settlement. The final approval hearing is scheduled to take place on June 23, 2014. Except for those actions necessary to carry out the parties' contemplated settlement, the lawsuit has been stayed pending determination of the final approval of the settlement. CITIBANK NA: Sued for Violating Telephone Consumer Protection Act ----------------------------------------------------------------- Mohammad Sarabi, Individually and On Behalf of All Others Similarly Situated v. Citibank, N.A., and Best Buy Co., Inc., Case No. 8:14-cv-00727 (C.D. Cal., May 9, 2014), accuses the Defendants of violating the Telephone Consumer Protection Act. Citibank, N.A., is a national banking association based in New York. Best Buy is a global retailer and developer of technology products and services. The Plaintiff is represented by: Seyed Abbas Kazerounian, Esq. Assal Hashemi Assassi, Esq. KAZEROUNI LAW GROUP, APC 245 Fischer Avenue Unit D1 Costa Mesa, CA 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 E-mail: ak@kazlg.com assal@kazlg.com - and - Joshua B. Swigart, Esq. HYDE & SWIGART 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 E-mail: josh@westcoastlitigation.com CLIENT SERVICES: Accused of Violating FDCPA in E.D. New York ------------------------------------------------------------ Joel Kornfeld, individually and all other similarly situated consumers v. Client Services, Inc., Case No. 1:14-cv-02955-WFK-LB (E.D.N.Y., May 9, 2014) is brought pursuant to the Fair Debt Collection Practices Act. The Plaintiff is represented by: David Palace, Esq. 383 Kingston Avenue, #113 Brooklyn, NY 11213 Telephone: (347) 651-1077 Facsimile: (347) 464-0012 E-mail: davidpalace@gmail.com CLIFFS NATURAL: Two Law Firms File Securities Class Action ---------------------------------------------------------- Bernstein Litowitz Berger & Grossmann LLP and Lowenstein Sandler LLP on May 12 disclosed that they have filed a securities class action lawsuit on behalf of the Department of the Treasury of the State of New Jersey and its Division of Investment against Cliffs Natural Resources Inc. and certain of its senior executives. The action, which is captioned The Department of the Treasury of the State of New Jersey and Its Division of Investment v. Cliffs Natural Resources Inc., Case No. 1:14-cv-01031 (N.D. Ohio), asserts claims under the Securities Exchange Act of 1934 on behalf of investors in Cliffs' common stock during the period of March 14, 2012 and March 26, 2013, inclusive. The Complaint alleges that during the Class Period, Cliffs misrepresented to investors that one of its most important assets, an iron ore mine known as Bloom Lake, was a premium asset and that production at the mine could be increased even as production costs decreased. Defendants also repeatedly misled investors regarding the testing and sustainability of the Company's dividend, which Cliffs dramatically increased by 123% on the first day of the Class Period. Once investors learned the complete truth regarding the massive problems at Bloom Lake and that the Company's dividend was neither adequately tested nor sustainable, the price of Cliffs' stock dropped significantly, damaging plaintiff and the class. If you wish to serve as Lead Plaintiff for the Class, you must file a motion with the Court no later than 60 days from May 12, 2014. Accordingly, the deadline for filing a motion for appointment as Lead Plaintiff is July 11, 2014. Any member of the proposed Class may move the Court to serve as Lead Plaintiff through counsel of their choice, or may choose to do nothing and remain a member of the proposed Class. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact James A. Harrod of BLB&G at 212-554-1502, or via e-mail at jim.harrod@blbglaw.com or Michael T.G. Long of Lowenstein Sandler at 973-422-6726, or via e-mail at mlong@lowenstein.com. CME GROUP: $550MM Bankruptcy Trustee Guaranty to be Extinguished ---------------------------------------------------------------- In connection with settlements between CME Group Inc., the bankruptcy trustee for MF Global and its customers, CME's $550.0 million financial guarantee to the trustee to cover any shortfall in MF Global's bankruptcy will be extinguished, according to CME's May 7, 2014, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2014. A number of lawsuits were filed in federal court in New York on behalf of all commodity account holders or customers of MF Global who had not received a return of 100% of their funds. These matters have been consolidated into a single action in federal court in New York, and a consolidated amended class action complaint was filed on November 5, 2012. On November 6, 2013, CME announced that it has reached an agreement in principle to resolve the class action litigation. In an agreement between the trustee and CME, CME will be allowed to assert a $29.0 million claim against MF Global based on expenses incurred by CME as a result of MF Global's bankruptcy. In a separate agreement between CME and the customer representatives, CME has agreed to deliver $14.5 million, one-half of the distribution that it will receive from the trustee, to the customer representatives for distribution to MF Global's former customers. In connection with the settlements between the company and the trustee and the customers, the company's $550.0 million financial guarantee to the bankruptcy trustee to cover any shortfall in the bankruptcy will be extinguished. The company believes that the likelihood of payment to the trustee is very remote. As a result, the guarantee liability is estimated to be immaterial at March 31, 2014. COGENT COMMUNICATIONS: Faces Overtime Class Action in California ---------------------------------------------------------------- Caroline Simson, writing for Law360, reports that Cogent Communications Inc. unlawfully withheld overtime payments from its California employees and purposely kept them in the dark on the state's labor laws, according to a proposed class action lodged against the Internet service provider in California federal court on May 12. The suit, brought by 16 former employees, alleges that they and other account managers were routinely required to work more than eight hours per day and 40 hours per week, but received the same salary regardless of the hours worked. Cogent knew that none of these employees could be properly classified as exempt from overtime under California law, but did nothing to stop the practice, the complaint says. The former employees also accuse Cogent of violating California's unfair competition statute by lying and by omitting relevant facts as part of the company's scheme to withhold overtime pay and deceive employees. "As a result of [Cogent's] unlawful, unfair and fraudulent conduct, plaintiffs and class members suffered injury in fact and lost money and property, including, but not limited to loss of monies and wages earned," the complaint alleges. The company is also accused of acting in direct contravention of the unfair competition statute, which protects employers who comply with the law from those who attempt to gain an advantage at their employees' expense, according to the complaint. The proposed class includes hundreds of Cogent's former employees, according to the suit, which also accuses the ISP of having a companywide policy of denying certain wages due to employees once they quit or were fired. The plaintiffs are asking the court to certify a class that will include all account managers who worked for the company in California during the last four years prior to the complaint's filing, who were not paid overtime. They are also requesting that their claim brought under the Fair Labor Standards Act proceed as a collective action. The former employees are seeking prejudgment interest of 10 percent on the allegedly unpaid overtime compensation, which the suit sets at up to twice the former employees' hourly rate for all the overtime hours worked, as well as attorneys' fees. Cogent is a multinational Internet and network service provider that offers Internet access, data transport, and colocation services to customers ranging from small businesses and multinational corporations, to carriers and service providers whose businesses rely on Internet access, according to Cogent's website. The plaintiffs are represented by Thomas E. Duckworth -- tom@dplolaw.com -- and Monique Olivier -- monique@dplolaw.com -- of Duckworth Peters Lebowitz Olivier LLP; and M. Todd Slobin, Daryl J. Sinkule, Sidd Rao and Dorian Vandenberg-Rodes of Shellist Lazarz Slobin LLP. The case is Ambrosia et al. v. Cogent Communications Inc., case number 3:14-cv-02182, in the U.S. District Court for the Northern District of California. COMMUNITY HEALTH: Tenn. Court Mulls Motion to Junk Stock Lawsuit ---------------------------------------------------------------- The motion of Community Health Systems, Inc. to dismiss a consolidated securities case against it has been fully briefed and is pending before the United States District Court for the Middle District of Tennessee, according to the company's May 7, 2014, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2014. Three purported class action cases have been filed in the United States District Court for the Middle District of Tennessee; namely, Norfolk County Retirement System v. Community Health Systems, Inc., et al., filed May 9, 2011; De Zheng v. Community Health Systems, Inc., et al., filed May 12, 2011; and Minneapolis Firefighters Relief Association v. Community Health Systems, Inc., et al., filed June 21, 2011. All three seek class certification on behalf of purchasers of the Company's common stock between July 27, 2006 and April 11, 2011 and allege that misleading statements resulted in artificially inflated prices for the Company's common stock. In December 2011, the cases were consolidated for pretrial purposes and NYC Funds and its counsel were selected as lead plaintiffs/lead plaintiffs' counsel. The Company's motion to dismiss this case has been fully briefed and is pending before the court. The Company believes this consolidated matter is without merit and will vigorously defend this case. COMMUNITY HEALTH: Awaits Ruling on Motion to Dismiss Suit v. HMA ---------------------------------------------------------------- The defendants' motion to dismiss the second amended complaint in In Re: Health Management Associates, Inc., et al. was fully briefed and awaiting the decision of the U.S. District Court for the Middle District of Florida, according to Community Health Systems, Inc.'s May 7, 2014, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2014. On April 30, 2012, two class action lawsuits that were brought against Health Management Associates, Inc. and certain of its then executive officers, one of whom was at that time also a director, were consolidated in the U.S. District Court for the Middle District of Florida under the caption In Re: Health Management Associates, Inc., et al. and three pension fund plaintiffs were appointed as lead plaintiffs. On July 30, 2012, the lead plaintiffs filed an amended consolidated complaint purportedly on behalf of stockholders who purchased HMA's common stock during the period from July 27, 2009, through January 9, 2012. The amended consolidated complaint (i) alleges that HMA made false and misleading statements in certain public disclosures regarding its business and financial results and (ii) asserts claims for violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended. Among other things, the plaintiffs claim that HMA inflated its earnings by engaging in fraudulent Medicare billing practices that entailed admitting patients to observation status when they should not have been admitted at all and to inpatient status when they should have been admitted to observation status. The plaintiffs seek unspecified monetary damages. On October 22, 2012, the defendants moved to dismiss the plaintiffs' amended consolidated complaint for failure to state a claim or plead facts required by the Private Securities Litigation Reform Act. The plaintiffs filed an unopposed stipulation and proposed order to suspend briefing on the defendants' motion to dismiss because they intended to seek leave of court to file a proposed second amended consolidated complaint. On December 15, 2012, the court entered an order approving the stipulation and providing a schedule for briefing with respect to the proposed amended pleadings. On February 25, 2013, the plaintiffs filed a second amended consolidated complaint, which asserts substantially the same claims as the amended consolidated complaint. As of August 15, 2013, the defendants' motion to dismiss the second amended complaint for failure to state a claim and plead facts required by the Private Securities Litigation Reform Act was fully briefed and awaiting the Court's decision. COMMUNITY HEALTH: Court Dismisses Lawsuit by HMA Stockholders ------------------------------------------------------------- The Court of Chancery of the State of Delaware entered a stipulation and order regarding the dismissal of the action Town of Davie Police Officers' Pension Plan v. Dauten, et al., according to Community Health Systems, Inc.'s May 7, 2014, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2014. On July 23, 2013, an action entitled Town of Davie Police Officers' Pension Plan v. Dauten, et al., was filed in the Court of Chancery of the State of Delaware. This action purportedly was brought as a class action on behalf of all of HMA's stockholders, as well as derivatively on behalf of HMA, against HMA's then- directors (the "Former Directors") and Wells Fargo Bank, National Association, Wells Fargo Securities, LLC (collectively, "Wells Fargo"), and Deutsche Bank Securities Inc. ("Deutsche Bank"). The complaint alleged, among other things, that the Former Directors breached their fiduciary duties by (i) approving a credit agreement in 2011 that contained a change of control covenant that plaintiff contended would have coerced shareholders into supporting their re-election and (ii) not approving the individuals nominated by Glenview Capital Management LLC ("Glenview") for election to HMA's board of directors (the "Nominees") for the purpose of avoiding the triggering of similar but distinct change of control provisions contained in certain of HMA's indentures. The complaint further alleged that Wells Fargo and Deutsche Bank aided and abetted such breaches by permitting the Former Directors to embed the change of control covenant in the credit agreement. The complaint sought declaratory and injunctive relief, including (i) a declaration that the Former Directors breached their fiduciary duties by entering into the credit agreement and (ii) an order permanently enjoining the Former Directors from invoking or enforcing the change of control covenant in the credit agreement. Plaintiff also sought unspecified damages and an award of attorneys' fees and costs. Simultaneously with filing its complaint, plaintiff filed a Motion for a Temporary Restraining Order and Expedited Proceedings. As disclosed in the preliminary and definitive proxy statements filed by the Company with the SEC on September 25, 2013, and November 22, 2013, respectively, before plaintiff filed this action, HMA already had determined and taken steps both to seek a waiver of the change in control covenant in its 2011 credit agreement and to interview Glenview's Nominees for the purpose of approving them to avoid triggering an acceleration of the debt due under certain of its indentures if the Nominees were elected to HMA's board of directors. Specifically, (i) representatives of HMA contacted representatives of Wells Fargo on July 18, 2013, to inquire about the necessary steps for obtaining a waiver under the credit agreement, and obtained such a waiver on July 29, 2013, so that a merger agreement with the Company could be executed on that date; and (ii) after interviews of all of the Glenview Nominees, HMA's Former Directors approved those individuals on August 1, 2013, for the limited purpose of avoiding the acceleration of the debt due under certain of its indentures. On August 12, 2013, Glenview delivered to HMA sufficient consents to elect its Nominees to HMA's board, replacing the Former Directors. On August 16, 2013, HMA announced that the Nominees had replaced the Former Directors on HMA's Board. Thus, plaintiff's class action claims were mooted by actions commenced by HMA before plaintiff filed its complaint on July 23, 2013, and plaintiff withdrew its request for injunctive relief. On September 20, 2013, the defendants moved to dismiss this action. After HMA's stockholders approved the HMA merger on January 8, 2014, plaintiff moved to voluntarily dismiss its mooted class action claims, as well as its derivative claim (which plaintiff recognized it would lose standing to pursue after the HMA merger closed on January 27, 2014), and requested an award of attorneys' fees and costs. Had plaintiff not moved to voluntarily dismiss its claims, defendants would have filed a brief in support of their motion to dismiss seeking dismissal of the complaint on a variety of grounds, including, but not limited to, mootness, lack of standing, laches, and failure to state a claim upon which relief may be granted. On April 15, 2014, the Court entered a stipulation and order (the "Order") regarding dismissal of the action. As required by the Order, the Company is hereby notifying stockholders that the derivative claim is being discontinued for lack of HMA stockholder standing, the action is being dismissed as moot, and HMA has agreed to pay plaintiff's counsel $115,000 in full satisfaction of plaintiff's pending request for attorneys' fees and costs in the action. The action will be dismissed as moot without further action by the parties or the Court unless another stockholder of HMA submits a written objection to the Court within thirty days of this notice. CONNECTICUT GENERAL: Renewed Class Cert. Bid in "Franco" Denied --------------------------------------------------------------- DARLERY FRANCO, Plaintiff, v. CONNECTICUT GENERAL LIFE INSURANCE CO., et al., Defendants, CIVIL ACTION NO. 07-6039 (SRC), (D. N.J.) is before the Court upon the renewed motion for class certification filed on September 9, 2013 by Plaintiffs Darlery Franco, David Chazen and Camilo Nelson (the "Subscriber Plaintiffs"). Cigna has opposed the motion. The Court denied Subscriber Plaintiffs' first motion for class certification by Order dated January 16, 2013. District Judge Stanley R. Chesler denied the Subscriber Plaintiffs' renewed motion for class certification in its entirety in an opinion dated April 14, 2014, a copy of which is available at http://is.gd/sVsB81from Leagle.com. "This motion fails to satisfy the requirements for certification of a Rule 23(b)(3) class as to either the proposed ERISA Class or the proposed RICO Class," ruled Judge Chesler. "Subscriber Plaintiffs have not demonstrated that they could litigate their claims through evidence that is common to the class. Moreover, issue certification, as permitted by Rule 23(c)(4), would not advance the resolution of the claims, and thus this action does not warrant exercise of the Court's discretion to certify certain issues," he further ruled. Barry M. Epstein, Esq. -- bepstein@eqlawoffice.com -- Barbara G. Quackenbos, Esq. -- bquackenbos@eqlawoffice.com -- EPSTEIN & QUACKENBOS, P.C., Roseland, New Jersey, Bruce H. Nagel, Esq. -- bnagel@nagelrice.com -- Randee M. Matloff, Esq. -- rmatloff@nagelrice.com -- NAGEL RICE, LLP, Roseland, New Jersey, James E. Cecchi -- jcecchi@carellabyrne.com -- CARELLA BYRNE BAIN GILFILLAN CECCHI STEWART & OLSTEIN, PC, Roseland, New Jersey, Stephen A. Weiss -- sweiss@seegerweiss.com -- Christopher A. Seeger -- cseeger@seegerweiss.com -- SEEGER WEISS, Newark, New Jersey, Christopher Burke, Esq. -- cburke@scott-scott.com -- Joseph Guglielmo, Esq. -- jguglielmo@scott-scott.com -- Amanda Lawrence, Esq. -- alawrence@scott-scott.com -- SCOTT + SCOTT, New York, New York, Attorneys for Plaintiffs DARLERY FRANCO, DAVID CHAZEN AND CAMILO NELSON. Brian J. McMahon, Esq. -- bmcmahon@gibbonslaw.com -- E. Evans Wohlforth, Jr., Esq. -- ewohlforth@gibbonslaw.com -- William P. Deni, Jr., Esq. -- wdeni@gibbonslaw.com -- GIBBONS P.C., Newark, New Jersey, William H. Pratt, Esq., Frank M. Holozubiec, Esq., Joshua B. Simon, Esq., Katherine L. McDaniel, Esq., Warren Haskel, Esq., KIRKLAND & ELLIS LLP, New York, New York, Attorneys for Defendants. CRANE CO: Appeals Court Affirms Jury Verdict in Asbestos Suit ------------------------------------------------------------- Heather Isringhausen Gvillo, writing for Legal Newsline, reports that a California appeals court has affirmed a jury's verdict in favor of a former boiler worker's asbestos claims, finding that the claimant presented sufficient evidence showing design defect. Justice Jim Humes delivered the unpublished opinion on April 16. Justices Ignazio Ruvolo and Timothy Reardon concurred. Defendant Crane Co. appealed to California's First District Court of Appeals after a jury found it liable for plaintiff James Hellam's mesothelioma injury. Mr. Hellam sued several defendants, but only Crane Co. remained at the time of trial. The jury was instructed to consider four claims, including strict liability for design defect, strict liability for failure to warn, negligence and punitive damages. Ultimately, it entered a special verdict in favor of Mr. Hellam on the design defect claim and in favor of Crane Co. on remaining claims, awarding Mr. Hellam $937,882.56 in economic damages and $4.5 million in noneconomic damages. The jury also allocated seven percent of the fault to Crane, 75 percent to MBS and the remaining 18 percent to three other named parties and "all others." The trial court entered judgment against Crane in December 2012, requiring the defendant to pay the entire economic damages award, although the court noted that the figure "may be adjusted following the court's determination of a motion for allocation of settlement credits," Justice Humes wrote. The court also reduced the noneconomic damages to $315,000 to reflect Crane's proportionate liability and reserved issuing a ruling on costs. Crane moved for a judgment notwithstanding the verdict and moved to vacate the judgment because it was "premature and incomplete" by failing to account for settlement credits. Both motions were denied in January 2013. In regards to court costs, Mr. Hellam sought roughly $101,000 in costs but Crane moved to tax several items. In May 2013, the court taxed $16,000 of the costs and awarded Mr. Hellam about $85,000. Crane appealed the orders, which were consolidated by the appellate court. In its appeal, Crane contended Mr. Hellam presented insufficient evidence that its products had both a design defect and were a "substantial factor" in causing the claimant's mesothelioma. Crane also argued the judgment improperly failed to apply settlement credits and was not final, in addition to Mr. Hellam's allegedly improperly awarded costs in a post-judgment order. However, the appeals court affirmed the judgment and concluded that the issues involving settlement credits are moot. The court also affirmed the order awarding certain costs, but remanded to the trial court the limited issue whether costs for pretrial transcripts should be taxed. Justice Humes explained that Mr. Hellam alleged he developed mesothelioma at age 64 after working with Crane Co.'s asbestos- containing products off-and-on from 1962 to 1966. In the summer months during high school and college, Mr. Hellam claims he worked full-time for his grandfather, Harvey Waugh, at Mr. Waugh's boiler business, Monterey Boiler Service, or MBS. MBS primarily specialized in refurbishing boilers, which involved applying an insulating material that Messrs. Hellam and Waugh referred to as 'asbestos,' the opinion states. Mr. Hellam recalled during testimony that the insulating material came packaged in bags labeled with "asbestos." Mr. Hellam further alleges that about half of the insulating cement Waugh purchased came from Crane Supply, saying the two would visit the supply house to restock when MBS ran out of the material. As part of his job, Mr. Hellam would open a bag and empty it into a trough, releasing "quite a bit" of dust into to the air, Justice Humes wrote. After mixing the dusty cement with water, he and Waugh applied the resulting "mud" to the boiler. Justice Humes added that refurbishing a boiler typically required one to two bags of insulating cement. Mr. Hellam was also responsible for cleaning up the boilers by chipping away excess mud that had hardened onto the trough, as well as disposing of the empty cement bags, which would release more visible dust. Mr. Hellam estimated that the process of mixing and applying the cement to each boiler took 15 to 20 minutes and that MBS refurbished 12 to 15 boilers per summer. Mr. Hellam also fabricated gaskets for the boilers, which were used to create a seal between pipes and flanges. He added that Waugh purchased sheet gasket material called Cranite at Crane Supply. Cranite, which was trademarked by the defendant, is believed to contain between 75 and 85 percent asbestos, a Crane corporate representative testified. The gasket-making process involved tapping an outline of each gasket with a hammer and cutting it out, which resulted in material fibers being released into the air, Mr. Hellam testified. Mr. Hellam added that each gasket took between 10 and 20 minutes to make. "Hellam indicated that during the time he worked at MBS he never believed that the cement or gasketing 'were in any way hazardous to his health' or 'were anything more than a nuisance dust,'" Justice Humes wrote. Mr. Hellam added that because he didn't suspect any risks associated with the asbestos-containing products, he did not take any safety precautions when handling the insulation cement and gasket materials. Appellate decision Addressing the design defect claim that the products were not as safe as ordinary customers expected, Justice Humes wrote that the court found substantial evidence was presented to support the jury's decision. "A manufacturer, distributor or retailer is liable in tort if a defect in the manufacture or design of its product causes injury while the product is being used in a reasonably foreseeable way," Justice Humes wrote. Crane argued there was insufficient evidence proving design defect or the elements of liability under the consumer expectations test. It added that the jury imposed "absolute liability" for "the mere presence of asbestos in the products at issue." Crane contended that the verdict on the design defect claim was only supported by evidence that its products lacked warnings. According to Crane, this evidence cannot sustain the design defect claim because the jury specifically rejected the failure-to-warn claim. However the appellate court disagreed, saying evidence was also presented that the products had "propensity to emit toxic asbestos fibers during ordinary use." Justice Humes explained that Mr. Hellam's testimony that visible dust was released while working with the products coupled with expert testimony from industrial hygienist Philip John Templin that Mr. Hellam inhaled asbestos fibers each time he worked with the materials constituted evidence of a design defect. Crane claims that "characterizing the defect as the products' propensity to emit asbestos fibers, rather than the products' asbestos content, is a 'distinction . . . without a difference.'" However, Justice Humes wrote that Mr. Hellam presented evidence that asbestos fibers were routinely emitted while mixing insulating cement and cutting gaskets, successfully providing sufficient evidence of design defect. Crane also argued that Mr. Hellam failed to satisfy the consumer expectations test required for proving a design defect claim. Justice Humes explained that the consumer expectations test asks whether the product performed as safely as an ordinary consumer would expect when used in an intended and reasonably foreseeable manner. "Crane argued the test was inapplicable here because Hellam's testimony alone was insufficient to establish the expectations of 'plumbing and heating contractors working in the boiler repair industry,' since he was a self-described 'gofer' who 'didn't know . . . much about the business,'" Justice Humes wrote. However, the appeals court rejected the argument, referring to Justice Hellam's testimony that he did not believe the products or the resulting dust posed any health risk. Justice Humes added that because Mr. Hellam routinely used the products for work, his statements were sufficient to establish safety expectations of ordinary consumers. Even if Crane were correct that the claimant must present evidence showing a boiler professional's expectations, Justice Humes continued, Mr. Hellam testified that Waugh required safety precautions during other activities but did not instruct him to take precautions with any other asbestos products. "The jury could have relied on this evidence to conclude that the products did not perform as safely as ordinary consumers expected," the opinion states. Crane contended that Mr. Hellam also failed to present enough evidence that its products were a substantial factor in causing his mesothelioma. However, Justice Humes wrote that Mr. Hellam only had to prove that the defendant's product was a substantial factor contributing to the illness in reasonable medical probability, which the court found he successfully proved through expert testimony. Templin testified that Mr. Hellam's exposure levels greatly exceeded ambient, or background, levels of asbestos. Dr. Barry Horn and Dr. Allan Smith both testified that each exposure increased Mr. Hellam's risk of developing mesothelioma. Horn added that "'there is unequivocally a dose-dependent relationship' between asbestos and mesothelioma, which means that the more asbestos one is exposed to, the higher one's risk of developing the disease." "As Templin's testimony established, those exposures were at levels significantly greater than ambient levels. Moreover, Hellam's testimony established that he was exposed to the products dozens of times over his employment at MBS," Justice Humes wrote. "As a result, the jury could reasonably conclude based on Dr. Horn's testimony that the products were a substantial factor in increasing Hellam's risk of developing mesothelioma." Addressing Crane's appeal based on awarded costs and requested taxes, the appeals found that the awarded costs were proper, but remand is necessary for the trial court to consider in the first instance whether Mr. Hellam is entitled to recover his costs for transcripts of pretrial proceedings. Mr. Hellam sought $101,092.40 in costs. The trial court granted in part Crane's motion to tax costs, subtracted $16,000 to account for "daily transcript fees" that the court determined were not recoverable and awarded Mr. Hellam the remaining $85,092.40. Crane argued the trial court erred when it failed to tax costs Mr. Hellam incurred during litigation against other defendants, claiming the costs were "not integrally associated with Mr. Hellam's claims against Crane Co." and were therefore not "reasonably necessary to pursuit of those claims," the opinion states. However, the appellate court disagreed, saying Mr. Hellam's mesothelioma was caused by his cumulative exposure to asbestos, making it difficult to separate issues according to defendant. "Here, the trial court recognized that costs must be both reasonably necessary and reasonable in amount, but it declined to prorate the costs awarded to account for other defendants," Justice Humes wrote. "In doing so, it observed that Crane was the only defendant remaining at trial and indicated its concern that apportionment could deny Mr. Hellam costs to which he was entitled." Lastly, Crane argued that the trial court erred by not taxing all of the costs attributable to transcripts. Justice Humes wrote that the record is unclear and remanded the question back to the trial court to consider whether costs for pretrial transcripts are recoverable. CROWDFLOWER INC: Bid for Approval of FLSA Suit Settlement Denied ---------------------------------------------------------------- CHRISTOPHER OTEY, et al., Plaintiffs, v. CROWDFLOWER, INC., et al., Defendants, CASE NO. 12-CV-05524-JST, (N.D. Cal.), is a conditionally certified collective action for violations of the Fair Labor Standards Act. Plaintiffs moved for approval of their stipulated settlement agreement, pursuant to which the parties seek the release of Plaintiffs' collective action claims, as well as their Rule 23 class action claims for violations of Oregon labor laws. In an order dated April 15, 2014, a copy of which is available at http://is.gd/TUGq0ffrom Leagle.com, District Judge Jon S. Tigar denied the motion for approval of settlement, without prejudice. Judge Tigar said the Court cannot conclude that the requested awards are reasonable because Plaintiffs do not provide any information as to how much money each class member is expected to receive, or what the average recovery for each class member will be. Plaintiffs may file a new motion that addresses the deficiencies identified within 90 days of the date the order, the Court held. To provide for the further management of the case in the event that a new motion is not forthcoming, the Court set a case management conference on August 20, 2014 at 2:00 p.m. A Joint Case Management Statement must be filed at least ten court days beforehand. If Plaintiffs file a new motion for settlement approval by July 14, 2014, they may also request the Court to vacate the August case management conference. Christopher Otey, Plaintiff, represented by William Thomas Payne -- wpayne@stemberfeinstein.com -- Stember Feinstein Doyle Payne & Kravec, LLC, Edward J. Feinstein -- efeinstein@stemberfeinstein.com -- Feinstein Doyle Payne & Kravec, LLC, Ellen Mary M. Doyle -- edoyle@fdpklaw.com -- Feinstein Doyle Payne & Kravec, LLC, Jennifer Lynn Connor -- jennifer@spirolawcorp.com -- Spiro Law Corp., Justin F. Marquez, Spiro Law Corp., Mark Alan Potashnick -- markp@wp-attorneys.com -- Weinhaus & Potashnick & Robert Ira Spiro -- ira@spiromoore.com -- Spiro Law Corp.. Mary Greth, Plaintiff, represented by William Thomas Payne, Stember Feinstein Doyle Payne & Kravec, LLC, Edward J. Feinstein, Feinstein Doyle Payne & Kravec, LLC, Ellen Mary M. Doyle, Feinstein Doyle Payne & Kravec, LLC, Jennifer Lynn Connor, Spiro Law Corp., Justin F. Marquez, Spiro Law Corp., Mark Alan Potashnick, Weinhaus & Potashnick & Robert Ira Spiro, Spiro Law Corp. Crowdflower, Inc., Defendant, represented by Tracy Thompson -- tt@millerlawgroup.com -- Miller Law Group, Brian Maschler -- bmaschler@gordonrees.com -- Gordon & Rees, LLP & M. Michael Cole -- mmc@millerlawgroup.com -- Miller Law Group. Lukas Biewald, Defendant, represented by Tracy Thompson, Miller Law Group, Brian Maschler, Gordon & Rees, LLP & M. Michael Cole, Miller Law Group. Chris Van Pelt, Defendant, represented by Tracy Thompson, Miller Law Group, Brian Maschler, Gordon & Rees, LLP & M. Michael Cole, Miller Law Group. DELTA APPAREL: No Certification Yet for Cal. Wage & Hour Suit ------------------------------------------------------------- The discovery process in a suit by a former employee of Delta Apparel, Inc.'s Delta Activewear business unit at the company's Santa Fe Springs, California distribution facility is ongoing and the issue of class certification remains pending, according to the company's May 7, 2014, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 29, 2014. The company was served with a complaint in the Superior Court of the State of California, County of Los Angeles, on or about March 13, 2013, by a former employee of the company's Delta Activewear business unit at the company's Santa Fe Springs, California distribution facility alleging violations of California wage and hour laws and unfair business practices with respect to meal and rest periods, compensation and wage statements, and related claims (the "Complaint"). The Complaint is brought as a class action and seeks to include all of the company's Delta Activewear business unit's current and certain former employees within California who are or were non-exempt under applicable wage and hour laws. The Complaint also names as defendants Junkfood, Soffe, an independent contractor of Soffe, and a former employee, and seeks to include all current and certain former employees of Junkfood, Soffe and the Soffe independent contractor within California who are or were non-exempt under applicable wage and hour laws. The Complaint seeks injunctive and declaratory relief, monetary damages and compensation, penalties, attorneys' fees and costs, and pre- judgment interest. The discovery process in this matter is ongoing and the issue of class certification remains pending. While the company will continue to vigorously defend this action and believe it has a number of meritorious defenses to the claims alleged, it believes a risk of loss is probable. Based upon current information, it believes there is a range of likely outcomes between approximately $15,000 and $975,000. During the quarter ended September 28, 2013, the company recorded a liability for the most likely outcome within this range. However, depending upon the scope and size of any certified class and whether any of the claims alleged ultimately prevail at trial, the company could be required to pay amounts exceeding $975,000. DETOUR GOLD: To Vigorously Defend Securities Class Action --------------------------------------------------------- Detour Gold Corporation disclosed that on May 13, 2014, a proposed securities class action claiming, among other things, special and general damages in the amount of $80 million, was commenced against the Company and its former CEO, Gerald Panneton, in relation to the Company's public disclosure concerning its Detour Lake Mine operations. The Company is investigating the allegations, and intends to vigorously defend the claims. About Detour Gold Detour Gold is an emerging mid-tier gold producer in Canada. In 2014, the Company is completing the ramp-up its 100% owned Detour Lake mine to a long life, large scale open pit operation. Detour Gold Corporation, Royal Bank Plaza, South Tower, 200 Bay Street, Suite 2200, Toronto, Ontario M5J 2J1 DIAMOND FOODS: Removed "Hall" Suit to Northern District of Cal. --------------------------------------------------------------- The purported class action lawsuit titled Richard Hall v. Diamond Foods, Inc., Case No. CGC-14-538387, was removed from the Superior Court of San Francisco County to the U.S. District Court for the Northern District of California (San Francisco). The District Court Clerk assigned Case No. 3:14-cv-02148-JCS to the proceeding. The lawsuit seeks to certify two classes: (1) "all consumers in the United States within four years of the filing of this lawsuit who have purchased Defendants' Kettle Brand Chips and/or Tias! Tortilla chips," which the Complaint refers to as the [allegedly] "Misbranded Products"; (2) "a class of all persons in the United States or, alternatively, California who purchased the [allegedly] Misbranded All-Natural Products from four years prior to the filing of the Complaint and continuing to the present"; and (3) "a class of all persons in the United States or, alternatively, California who purchased the [allegedly] Misbranded Reduced Fat Products from four years prior to the filing of the Complaint and continuing to the present." The Plaintiff is represented by: Anthony Joshua Orshansky, Esq. COUNSELONE, PC 9301 Wilshire Boulevard, Suite 650 Beverly Hills, CA 90210 Telephone: (310) 277-9945 Facsimile: (424) 277-3727 E-mail: anthony@counselonegroup.com The Defendants are represented by: Amanda L. Groves, Esq. Sean D. Meenan, Esq. WINSTON & STRAWN LLP 101 California Street, Suite 3900 San Francisco, CA 94111-5894 Telephone: (415) 591-1409 Facsimile: (415) 591-1400 E-mail: agroves@winston.com smeenan@winston.com DOCTOR REHAB: Removed "Rodriguez" Class Suit to S.D. Florida ------------------------------------------------------------ The class action lawsuit styled Rodriguez v. Doctor Rehab Center, Inc., et al., Case No. 14-008456 CA 01, was removed from the 11th Judicial Circuit in and for Miami-Dade, Florida, to the U.S. District Court for the Southern District of Florida (Miami). The District Court Clerk assigned Case No. 1:14-cv-21722-MGC to the proceeding. Plaintiff Barbara Rodriguez seeks to recover unpaid wages under the Fair Labor Standards Act, and seeks damages for alleged unlawful, retaliatory discharge pursuant to Florida's private sector Whistleblower's Act. The Plaintiff is represented by: Jason Saul Remer, Esq. REMER & GEORGES-PIERRE, PLLC Court House Tower, Suite 2200 44 West Flagler Street Miami, FL 33130 Telephone: (305) 416-5000 Facsimile: (305) 416-5005 E-mail: jremer@rgpattorneys.com The Defendants are represented by: Christopher Wayne Wadsworth, Esq. WADSWORTH KING & HUOTT LLP 200 SE 1st Street, Suite 1100 Miami, FL 33131 Telephone: (305) 777-1000 Facsimile: (305) 777-1001 E-mail: cw@wadsworth-law.com - and - Ronnie Guillen, Esq. WADSWORTH KING & HUOTT LLP 14 N.E. 1st Avenue, 10th Floor Miami, FL 33132 Telephone: (305) 777-1000 Facsimile: (305) 777-1001 E-mail: rg@wadsworth-law.com DUN & BRADSTREET: Discovery Ongoing in O&R Antitrust Suit --------------------------------------------------------- Discovery is ongoing in the suit O&R Construction, LLC v. Dun & Bradstreet Credibility Corporation, et al., No. 2:12 CV 02184 (W.D. Wash.), according to The Dun & Bradstreet Corporation's May 7, 2014, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 29, 2014. On December 13, 2012, plaintiff O&R Construction LLC filed a putative class action in the United States District Court for the Western District of Washington against D&B and an unaffiliated entity. The complaint alleged, among other things, that defendants violated the antitrust laws, used deceptive marketing practices to sell the CreditBuilder credit monitoring products and allegedly misrepresented the nature, need and value of the products. The plaintiff purports to sue on behalf of a putative class of purchasers of CreditBuilder and seeks recovery of damages and equitable relief. On February 18, 2013, the Company filed a motion to dismiss the complaint. On April 5, 2013, plaintiff filed an amended complaint in lieu of responding to the motion. The amended complaint dropped the antitrust claims and retained the class action and deceptive practices allegations. The Company filed a new motion to dismiss the amended complaint on May 3, 2013. On August 23, 2013, the Court heard the motion and granted it. Specifically, the Court dismissed a contract claim with prejudice, and dismissed all the remaining claims without prejudice. On September 23, 2013, plaintiff filed a Second Amended Complaint ("SAC"). The SAC alleges claims for negligence, defamation and unfair business practices under Washington state law against the Company for alleged inaccuracies in small business credit reports. The SAC also alleges liability against the Company under a joint venture or agency theory for practices relating to CreditBuilder. The Company filed a motion to dismiss the SAC. On January 9, 2014, the Court heard argument on the Company's motion and dismissed with prejudice the claims based on a joint venture or agency liability theory brought against the Company. The Court denied the motion with respect to the negligence, defamation and unfair practices claims. On January 23, 2014, the Company answered the SAC. On May 2, 2014, plaintiff filed a Notice Regarding Scope of Class Definition, noting its intention to revise its class definition to exclude small businesses from the states of Ohio and California from its motion for class certification. The parties exchanged initial disclosures and completed the initial case management process in March 2013. Discovery in the case is ongoing, and the Company is continuing to investigate the allegations. In accordance with ASC 450, the company does not have sufficient information upon which to determine that a loss in connection with this matter is probable, reasonably possible or estimable, and thus no reserve has been established nor has a range of loss been disclosed. DUN & BRADSTREET: Files Motion to Transfer Die-Mension Lawsuit -------------------------------------------------------------- The Dun & Bradstreet Corporation filed a Joint Motion to Transfer the litigation Die-Mension Corporation v. Dun & Bradstreet Credibility Corporation et al., No. 1:14-cv-392 (N.D. Oh.) to the Western District of Washington, according to the company's May 7, 2014, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 29, 2014. On February 20, 2014, plaintiff Die-Mension Corporation ("Die- Mension") filed a putative class action in the United States District Court for the Northern District of Ohio against the Company and DBCC, an unaffiliated entity, Die-Mension purporting to sue on behalf of a putative class of all purchasers of a CreditBuilder product in the United States or in such state(s) as the Court may certify. The complaint alleged that DBCC used deceptive marketing practices to sell the CreditBuilder credit monitoring products. As against the Company, the complaint alleged a violation of Ohio's Deceptive Trade Practices Act, defamation, and negligence. The complaint alleged deceptive trade practices, negligent misrepresentation and concealment against DBCC. On March 4, 2014, in response to a direction from the court, Die-Mension withdrew its original complaint and filed an amended complaint. The amended complaint contains the same substantive allegations as the original complaint, but limits the purported class to small businesses in Ohio that purchased the CreditBuilder product. On March 13 2014, the Company agreed to waive service of the amended complaint. On May 5, 2014, the Company and DBCC filed a Joint Motion to Transfer the litigation to the Western District of Washington. The parties also filed a stipulated motion extending the Company and DBCC's time to file a motion to dismiss or otherwise answer the amended complaint until 20 days after the Court decides the Joint Motion to Transfer. In accordance with ASC 450, the company therefore does not have sufficient information upon which to determine that a loss in connection with this matter is probable, reasonably possible or estimable, and thus no reserve has been established nor has a range of loss been disclosed. DUN & BRADSTREET: Response in Suit Over CreditBuilder Due May 27 ---------------------------------------------------------------- The response of The Dun & Bradstreet Corporation to a lawsuit alleging it used deceptive marketing practices to sell CreditBuilder credit monitoring products is due May 27, 2014, according to the company's May 7, 2014, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 29, 2014. The suit is Vinotemp International Corporation and CPrint, Inc. v. Dun & Bradstreet Credibility Corporation, et al., No. 8:14-cv- 00451 (C.D. Cal). On March 24 2014, plaintiffs Vinotemp International Corporation ("Vinotemp") and CPrint, Inc. ("CPrint") filed a putative class action in the United States District Court for the Central District of California against the Company and DBCC, an unaffiliated entity. Vinotemp and CPrint purport to sue on behalf of all purchasers of DBCC's CreditBuilder product in the state of California. The complaint alleges that DBCC used deceptive marketing practices to sell the CreditBuilder credit monitoring products, in violation of Section 17200 and Section 17500 of the California Business and Professions Code. The complaint also alleges negligent misrepresentation and concealment against DBCC. As against the Company, the complaint alleges that the Company entered false and inaccurate information on credit reports in violation of Section 17200 of the California Business and Professions Code, and also alleges negligence and defamation claims. On March 31, 2014, the Company agreed to waive service of the complaint. The Company's response is due May 27, 2014. The Company is in the initial stages of investigating the allegations. FIRST SOLAR: Certified Securities Lawsuit Continues in Arizona -------------------------------------------------------------- First Solar, Inc. continues to face a certified securities class action in the United States District Court for the District of Arizona, according to the company's May 7, 2014, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 29, 2014. On March 15, 2012, a purported class action lawsuit titled Smilovits v. First Solar, Inc., et al., Case No. 2:12-cv-00555- DGC, was filed in the United States District Court for the District of Arizona (hereafter "Arizona District Court") against the Company and certain of the company's current and former directors and officers. The complaint was filed on behalf of purchasers of the Company's securities between April 30, 2008, and February 28, 2012. The complaint generally alleges that the defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 by making false and misleading statements regarding the Company's financial performance and prospects. The action includes claims for damages, and an award of costs and expenses to the putative class, including attorneys' fees. The Company believes it has meritorious defenses and will vigorously defend this action. On July 23, 2012, the Arizona District Court issued an order appointing as lead plaintiffs in the class action the Mineworkers' Pension Scheme and British Coal Staff Superannuation Scheme (collectively "Pension Schemes"). The Pension Schemes filed an amended complaint on August 17, 2012, which contains similar allegations and seeks similar relief as the original complaint. Defendants filed a motion to dismiss on September 14, 2012. On December 17, 2012, the court denied Defendants' motion to dismiss. On February 26, 2013, the court directed the parties to begin class certification discovery, and ordered a further scheduling conference to set the merit discovery schedule after the issue of class certification has been decided. On June 21, 2013, the Pension Schemes filed a motion for class certification. On October 8, 2013, the Arizona District Court granted the Pension Schemes' motion for class certification. FIVE STAR CARTING: Suit Seeks to Recover Unpaid Overtime Wages -------------------------------------------------------------- Marco Antonio Flores, Individually and on Behalf of All Others Similarly Situated v. Five Star Carting, LLC, Five Star Carting, Inc., Workforce Cleaning Services, LLC, Anthony Tristani and Nino Tristani, Jointly and Severally, Case No. 2:14-cv-02970 (E.D.N.Y., May 9, 2014) is brought to recover unpaid overtime premium wages owed to the Plaintiff pursuant to the Fair Labor Standards Act and the New York Labor Law. The Plaintiff is a former demolition and labor employee for the Defendants' demolition and waste removal business. Five Star Carting LLC and Five Star Carting, Inc. are New York corporations headquartered in Maspeth, New York. Workforce Cleaning Services, LLC is a New York corporation headquartered in Brooklyn, New York. The Corporate Defendants operated together as a single integrated business enterprise. The Individual Defendants are officers, directors or managing agents of Five Star Carting. The Plaintiff is represented by: Brent E. Pelton, Esq. Taylor B. Graham, Esq. Alison G. Lobban, Esq. PELTON & ASSOCIATES PC 111 Broadway, Suite 1503 New York, NY 10006 Telephone: (212) 385-9700 Facsimile: (212) 385-0800 E-mail: pelton@peltonlaw.com graham@peltonlaw.com lobban@peltonlaw.com FORD MOTOR: Causation Theory Doesn't Apply in Asbestos Suit ----------------------------------------------------------- P.J. D'Annuznio, writing for The Legal Intelligencer, reports that despite a plaintiffs expert's testimony that minimal exposure to asbestos can cause mesothelioma, the state Superior Court has ruled that prohibition of "any exposure" causation theories did not apply in an asbestos case against Ford Motor Co. In Rost v. Ford Motor on May 19, a three-judge panel denied Ford's request for a new trial, reasoning that the state Supreme Court's decision in Betz v. Pneumo Abex was not applicable in Rost. In denying a new trial, the court upheld a $994,800 jury award out of the Philadelphia Court of Common Pleas to plaintiff Richard Rost and his wife. Judge Jack A. Panella wrote in the court's opinion that Mr. Rost's experts gave sufficient evidence showing that Rost's exposure to Ford's asbestos-containing brakes was a substantial factor in the development of his mesothelioma, contrary to Ford's assertions. "While it is true that the 'every exposure' theory does not, by itself, meet the standard for establishing substantial causation in a legal sense, this record is more than sufficient to establish its general scientific legitimacy," Judge Panella said. "As we have already determined that the rest of the certified record is sufficient to establish a triable issue on whether Richard Rost's exposure at the garage was a substantial cause of his mesothelioma, this defect in the 'every exposure' theory is not sufficient to warrant reversal in this case." Mr. Rost filed suit in 2009 alleging that his exposure to various products from Ingersoll-Rand, General Electric, Westinghouse (all of which settled with the plaintiff) and Ford contributed to his development of mesothelioma, according to Jugdge Panella. Mr. Rost testified that he worked at a Ford dealership in 1950 for several months. According to Judge Panella, Mr. Rost said the Ford brakes the dealership serviced in its garage contained 40 to 60 percent asbestos by weight. Mr. Rost's duties included cleaning the garage and removing brake linings -- activities that generated dust that Rost inhaled. Judge Panella added that the exhaust system in the garage was also very limited. One of Mr. Rost's experts, Dr. Arthur Frank, testified that there were case studies that showed individuals who were exposed to asbestos for only a day developed mesothelioma, Judge Panella said. Frank also said certain animal studies showed that any exposure from one day to one month doubles the risk of developing mesothelioma. Ford argued on appeal that Mr. Rost did not offer "competent expert opinion in demonstrating that the exposure to asbestos attributable to Ford was sufficient to qualify as a substantial factor" in causing Rost's mesothelioma, Judge Panella said. Ford pointed to Betz and the Supreme Court's opinion in Gregg v. V-J Auto Parts as similar cases. However, Judge Panella said, "Clearly, neither of these opinions required the dismissal of the plaintiff's cause of action merely due to the problems with the plaintiff's expert's opinion on causation." Additionally, Judge Panella said Ford misinterpreted the Supreme Court's ruling in Betz, explaining that the Betz decision does not require judges to reject the opinion of any expert who testifies as to the amount of asbestos to which a person can be safely exposed. "Rather, the Betz court held that, based upon the record before it, the trial court did not abuse its discretion in determining that the expert in that case had not established the legitimacy of his legal conclusion that any exposure was a substantial cause of the plaintiff's disease," Judge Panella said. Judge Panella said despite Frank's every-exposure theory, when taken in context with the other evidence and testimony on regularity of exposure given by Mr. Rost's other expert witnesses, "the record is more than sufficient to support the verdict reached by the jury." Ford also argued that Mr. Rost should have been made to prove that the asbestos brakes he came into contact with were defective under products liability law, Judge Panella said. Citing the Superior Court's 2010 decision in the asbestos case of Moore v. Ericsson, Judge Panella noted, "With respect to asbestos cases, what renders the product unsafe for its intended use is the presence of asbestos in the product, or the dangers from inhalation of asbestos fibers." As in Ericsson, Judge Panella said, the issue in Rost was not whether a product was defective because it contained asbestos, but whether the defendant's product contained asbestos, whether the plaintiff was exposed to it and whether that exposure caused the plaintiff's mesothelioma. Duane Morris attorney Robert Byer -- rlbyer@duanemorris.com -- represented Ford and declined to comment. Mr. Rost's lawyer, Robert Paul of Paul, Reich & Myers, did not return a call seeking comment. FOSTER WHEELER: Faces Shareholder Lawsuits in Texas, New Jersey --------------------------------------------------------------- Foster Wheeler AG faces shareholder lawsuits in Texas state court and in the United States District Court for the District of New Jersey, according to the company's May 7, 2014, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 29, 2014. Four putative class action lawsuits have been filed on behalf of Foster Wheeler AG shareholders against Foster Wheeler AG, or the Company, and the Board of Directors of Foster Wheeler AG, or the Board, seeking to enjoin the proposed acquisition of the Company by AMEC from proceeding. The first of such lawsuits was filed on March 4, 2014. Two of the lawsuits are pending in Texas state court and the other two lawsuits are pending in the United States District Court for the District of New Jersey. AMEC is named as a co-defendant in the two Texas state court lawsuits. The complaints contain similar, standardized allegations. Plaintiffs allege that the directors breached fiduciary duties owed to plaintiff and the Company's other shareholders in pursuing the plan to sell the Company, and that the Company aided and abetted the defendant directors in committing such breach. In particular, plaintiffs allege that AMEC's per share exchange offer to acquire all of the Company's shares does not adequately compensate the Company's shareholders for their investment and significantly undervalues the Company's prospects as a standalone entity, that the consideration fails to take into account the value expected to be realized by AMEC as a result of the proposed acquisition, that the Board permitted Company management to lead the negotiations with AMEC when management was improperly incentivized to pursue the proposed acquisition, and that the Implementation Agreement improperly contains a number of deal protection devices designed to preclude any competing bids from emerging during the period following the announcement of the proposed acquisition in the Company's Form 8-K filing. Plaintiffs are in the process of serving summonses and complaints upon the Company and its Board. No class has been constituted yet. The Company believes that the allegations are without merit and intends to vigorously oppose the lawsuits on behalf of itself and on behalf of its Board. FTS USA: Suit Seeks to Recover Unpaid Overtime Wages and Damages ---------------------------------------------------------------- Jose Viera, on behalf of himself and those similarly situated v. FTS USA, LLC, a Foreign For Profit Limited Liability Company, Case No. 6:14-cv-00734-JA-GJK (M.D. Fla., May 9, 2014) is brought for unpaid overtime compensation, liquidated damages or interest, and fees and costs under the Fair Labor Standards Act. FTS USA, LLC, is a Foreign For Profit Limited Liability Company located in Pennsylvania but operates and conducts business in Orange County, Florida. The Plaintiff is represented by: Carlos V. Leach, Esq. MORGAN & MORGAN, PA 20 N Orange Ave., Suite 1600 PO Box 4979 Orlando, FL 32801 Telephone: (407) 420-1414 Facsimile: (407) 245-3341 E-mail: cleach@forthepeople.com GENERAL MOTORS: Faces "Emerson" Suit Over Ignition Switch Defect ---------------------------------------------------------------- Jonathan Emerson, Melinda Barbiaux, Carter Brown Davis, Dawn Garrett, Thomas Hicks, Barb Lawson, Carlton Moore, and Janet Perkins, individually and on behalf of all others similarly situated v. General Motors LLC, Delphi Automotive PLC, and Delphi Automotive Systems, LLC, Case No. 1:14-cv-21713-UU (S.D. Fla., May 9, 2014) arises from GM's recent string of recalls, the culmination of GM and Delphi's alleged scheme to defraud GM consumers through their unconscionable failure to disclose and active concealment of a defect in certain GM vehicles that renders them unsafe to drive and has killed at least 13 innocent victims and possibly hundreds more. The defect involves the vehicles' ignition switch system, which is dangerously susceptible to failure during normal and foreseeable driving conditions, the Plaintiffs contend. Delphi manufactured and supplied the alleged defective ignition switches. GM is a limited liability company formed and headquartered in Michigan. GM acquired substantially all the assets and assumed certain liabilities of General Motors Corporation through a sale under the U.S. Bankruptcy Code. Delphi Automotive PLC is a foreign corporation based in the United Kingdom. Delphi Automotive Systems, LLC is a foreign corporation organized in Delaware with its principal place of business in Michigan. Once a subsidiary of Old GM, Old Delphi spun-off in 1999 and became an independent publicly held corporation. The Plaintiffs are represented by: Harley S. Tropin, Esq. Adam M. Moskowitz, Esq. Thomas A. Tucker Ronzetti, Esq. Tal J. Lifshitz, Esq. Robert Neary, Esq. KOZYAK, TROPIN, & THROCKMORTON P.A. 2525 Ponce de Leon Blvd., 9th Floor Coral Gables, FL 33134 Telephone: (305) 372-1800 Facsimile: (305) 372-3508 E-mail: hst@kttlaw.com amm@kttlaw.com tr@kttlaw.com tjl@kttlaw.com rn@kttlaw.com - and - Gregory O. Wiggins, Esq. Kevin W. Jent, Esq. WIGGINS, CHILDS, QUINN & PANTAZIS, LLC The Kress Building 301 19th Street North Birmingham, AL 35203 Telephone: (205) 314-0500 E-mail: gwiggins@wcqp.com kjent@wcqp.com GENERAL MOTORS: Has Invaded Class Members' Privacy, Suit Claims --------------------------------------------------------------- Monique Perez, Individually and On Behalf of All Others Similarly Situated v. General Motors Financial Company, Inc., Case No. 8:14- cv-00735-JLS-DFM (C.D. Cal., May 9, 2014) is brought for damages and injunctive, resulting from the Defendant's alleged illegal actions in negligently and willfully contacting the Plaintiff on her cellular telephone, in violation of the Telephone Consumer Protection Act, thereby, invading her privacy. Plaintiff General Motors Financial Company, Inc., is a business corporation headquartered in Fort Worth, Texas. The Company conducted business in the state of California and in the County of Orange. The Plaintiff is represented by: Todd M. Friedman, Esq. Nicholas J. Bontrager, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 324 S. Beverly Dr. #725 Beverly Hills, CA 90212 Telephone: (877) 206-4741 Facsimile: (866) 633-0228 E-mail: tfriedman@attorneysforconsumers.com nbontrager@attorneysforconsumers.com - and - Abbas Kazerounian, Esq. Jason A. Ibey, Esq. KAZEROUNI LAW GROUP, APC 245 Fischer Avenue, Unit D1 Costa Mesa, CA 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 E-mail: ak@kazlg.com jason@kazlg.com - and - Joshua B. Swigart, Esq. Jessica R. K. Dorman, Esq. HYDE & SWIGART 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108-3551 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 E-mail: josh@westcoastlitigation.com Jessica@westcoastlitigation.com GENERAL MOTORS: Livingston Woman Files Ignition Switch Class Suit ----------------------------------------------------------------- Taylor Knox, writing for Clickondetroit.com, reports that a Livingston county woman has requested a class action lawsuit against General Motors in regard to the ignition switch recall. The woman drives a 2004 Saturn Ion and claims she has experienced problems related to the recall such as the vehicle stalling while driving. She is upset because the car is unsafe and now greatly devalued because of the recall. The class action lawsuit is seeking more than $5 million in damages. GENERAL MOTORS: Gets $35MM Fine Over Ignition Switch Defect ----------------------------------------------------------- Ben Klayman, Bernie Woodall, Richard Cowan, Eric Beech and Jessica Dye, writing for Reuters, report that General Motors Co. was slapped on May 16 with a $35 million U.S. fine for its delayed response to an ignition switch defect in millions of vehicles, as federal regulators accused a long line of company officials of concealing a problem that is linked to at least 13 deaths. U.S. Transportation Secretary Anthony Foxx announced the fine, which is the maximum the agency can impose. Other investigations into the automaker's handling of the recall are being conducted by the federal government and could come with more severe punishments. It was unclear how those additional probes might be influenced by the May 16 actions by the Obama administration, especially after Foxx declared: "What GM did was break the law . . . They failed to meet their public safety obligations." The ignition-switch defect was originally noticed by the largest U.S. automaker more than a decade ago. But the first recalls began only in February of this year, despite years of consumer complaints. Furthermore, the acting chief of the National Highway Traffic Safety Administration (NHTSA), David Friedman, told reporters that GM employees ranging from engineers "all the way up through executives" were aware of the information years before the recall of 2.6 million vehicles. He did not name the executives, and said there was no information that Chief Executive Officer Mary Barra had earlier knowledge about the problems. Ms. Barra took over as CEO in mid-January, becoming the first female to head a major automaker. Mr. Friedman also slammed GM's "corporate philosophy" and pointed to internal training documents that discouraged engineers from using the words "safety" and "defect" when identifying product risks. CLOSER SCRUTINY Besides announcing the $35 million fine, officials said that GM will come under closer scrutiny by federal regulators. The automaker will be required to hold regular meetings with NHTSA to report on efforts to catch safety problems and it also must give the agency monthly reports on any emerging defect issues. Democratic Senator Richard Blumenthal of Connecticut criticized NHTSA for failing to spot the defect earlier. "There is no question NHTSA bears part of the blame, a large part," he said. The faulty ignition switches on Chevrolet Cobalts, Saturn Ions and other GM vehicles can cause their engines to stall, which in turn prevents air bags from deploying during crashes. Also, power steering and power brakes do not operate when the ignition switch unexpectedly moves from the "on" position to the "accessory" position. The fine is far from the end of GM's problems. Congress, the Department of Justice, the U.S. Securities and Exchange Commission and several states are conducting their own investigations, and GM's internal probe is expected to be completed within the next two weeks. The company is also weighing whether and how to broadly compensate victims. Carl Tobias, who teaches tort and product liability law at the University of Richmond School of Law, said that while the NHTSA probe is separate from the ongoing criminal investigation, "I think it plays back on the DOJ investigation and I'm sure they will take it into account." He added that GM's admission that it failed to make a timely report of the ignition defect could increase the company's exposure to civil lawsuits "principally because people could have gotten hurt in the interim when GM wasn't making sufficient and timely reports to NHTSA." The consumer group Center for Auto Safety called the $35 million fine a "slap on the wrist to a hundred billion dollar corporation." It called on the Justice Department to impose a fine of at least $1 billion on GM. SHAKEUP GM in recent months has been trying to demonstrate that it is taking quality issues seriously, shaking up its internal safety team and taking other steps that it says will help protect consumers. But consumer advocates have accused GM of resisting moves such as urging owners of the recalled cars to park them immediately until they are repaired. Under the steps announced by the government on May 16, GM also agreed to take part in "unprecedented oversight requirements," including providing full access to its internal investigation and notifying the government of any changes to GM's effort to make repair parts, the government said. Transportation Secretary Foxx and NHTSA also used the May 16 announcement to push Congress to reset the maximum financial penalty to $300 million from $35 million. Prospects for passage of such legislation this year are uncertain. In a statement, GM confirmed it would pay the fine. "We are working hard to improve our ability to identify and respond to safety issues," said Jeff Boyer, vice president of Global Vehicle Safety, who is assigned to integrate safety policies across the company. The May 16 announcement on GM came a day after the automaker announced five separate recalls covering nearly 3 million vehicles worldwide because of tail lamp malfunctions and potential faulty brakes. GOODMAN GLOBAL: Faces Class Action Over Defective Air Conditioners ------------------------------------------------------------------ Lorenzo B. Cellini, Esq., at Tycko & Zavareei LLP reports that a class action lawsuit filed against Goodman Global, Inc., and certain affiliated companies, alleges that central air conditioning units and heat pumps sold under the Goodman(R) and Amana(R) brands since 2007 are defective. In particular, the plaintiff contends in his lawsuit that these units have defective evaporator coils. Evaporator coils are generally located inside a consumer's home and they are essential to the proper functioning of any central air conditioning system or heat pump. According to the lawsuit, Goodman and Amana central air conditioning and heat pump systems contain defective evaporator coils that improperly and prematurely leak refrigerant (a.k.a. Freon(R)). The defect allegedly renders the systems inoperable because the cooling cycle will not work without refrigerant. Although Goodman sells these units with a warranty, that warranty is limited in a way that provides insignificant protection to owners of the units. In particular, the Goodman warranty, by its terms, covers replacement parts, but not the labor costs associated with the replacement. According to the lawsuit, the result is that, when a defective evaporator coil fails, Goodman provides the owner with a replacement coil, but does not pay to have the old coil removed or the replacement coil installed. As alleged in the lawsuit, those labor costs typically run in the hundreds of dollars, and in some cases, thousands of dollars. Thus, in at least some instances, the owner is forced to spend as much or more to replace the defective evaporator coil as the cost to purchase a new Goodman unit. The complaint also alleges that Goodman has known that its units sold since 2007 contained defective evaporator coils, but the company failed to inform consumers about the problem or issue a recall. Indeed, according to the lawsuit, Goodman continued to tout the quality of its air conditioning systems -- claiming they were durable, dependable, and long lasting -- even though it was aware that the defective evaporator coils would cause the units to fail prematurely and at rates far above the industry average. The lead plaintiff in the case acquired his Goodman unit when he purchased his new house in September 2011. According to the lawsuit, in or about July 2013, after only one summer of use, the unit stopped cooling the plaintiff's home. A service technician allegedly found that the unit was low on refrigerant and added four pounds of refrigerant, which immediately leaked out of the system. After observing this, the technician determined that the evaporator coil was leaking and needed to be replaced. According to the complaint, the service technician returned the old defective evaporator and replaced it with a new one, charging plaintiff approximately $650 for this service. The civil action was filed in North Carolina state court on behalf of all consumers in North Carolina that purchased a central air conditioning unit or heat pump bearing the trade names Goodman(R) and Amana(R) from 2007 to the present. GOOGLE INC: Unit Recalls 440,000 Smoke Detectors in U.S. -------------------------------------------------------- Alexei Oreskovic, writing for Reuters, reports that Google Inc.'s Nest Labs is recalling 440,000 smoke detectors, according to a U.S. government notice on May 21 that provides the first public revelation of how many of the smart home appliances have shipped since sales started in November. Nest, which Google acquired earlier this year for $3.2 billion, shipped 440,000 of its smoke alarms in the United States between Nov. 15 and April, according to figures contained in a notice by the Consumer Product Safety Commission. Nest halted sales of the smoke alarms in April after it discovered a defect that could cause users to turn it off unintentionally. The notice said the recall affected roughly 440,000 units of the $130 Nest Protect sold in the United States at retailers and on the Nest website between Nov. 15 and April 3. Nest spokesperson Ha Thai said the company does not disclose sales figures and said that the Protect product will be available again "in a few weeks." Nest has provided few details about sales of its Protect smoke and carbon monoxide alarm or its 2-year-old smart thermostat, which has earned positive reviews for its sleek look and its ability to help consumers reduce their energy bills. Tony Fadell, the company's founder, was quoted in media reports in December saying that "tens of thousands" of the Protect devices had been activated in the first nine days of its availability in the United States, Canada and Britain. Carl Purvis, a spokesman with the Consumer Product Safety Commission, said the number of units cited in the recall referred to the full production run, including products sold to consumers as well as products shipped to retailers. Nest said in April that a special feature in its Protect alarm, which allows a user to switch off the device with a wave of the hand, could be inadvertently activated under certain circumstances. The company said it would immediately deactivate the feature on all smoke alarms that are WiFi-connected while it worked on a software update to fix the defect. The company also halted all sales of the smoke alarms to prevent customers from buying a device that would need an immediate patch. The Consumer Product Safety Commission notice said Nest has received no reports of incidents, injuries or property damage. Google's January acquisition of Nest represented the second- largest deal in the Internet search company's history. The deal positioned Google to play a bigger role in the market for smart home appliances at a time when an increasing array of electronic devices are being designed to connect to the Internet. According to The Associated Press, government regulators on May 21 said that they have approved Nest Labs' plans to fix a feature in its smoke alarms that could prevent them from sounding immediately. Nest says the device must be connected to the Internet and linked to an account for an automatic update. Consumers whose devices are already connected should confirm receipt of the update by going to "Nest Sense" on their account and ensuring the button for "Nest Wave" is set to off and grayed out. Those who have not connected their devices to a wireless network and a Nest account should do so. The devices will then be automatically updated and consumers should take the aforementioned steps to ensure the update is complete. ICAHN ENTERPRISES: N.Y. Court Grants Motion to Dismiss "Silsby" --------------------------------------------------------------- The U.S. District Court for the Southern District of New York granted defendants' motion to dismiss the case Silsby v. Icahn et al., according to Icahn Enterprises L.P.'s's May 7, 2014, Form 10- Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 29, 2014. On March 28, 2012 an action was filed in the U.S. District Court, Southern District of New York (the "Court"), entitled Silsby v. Icahn et al. Defendants include Carl C. Icahn and two officers of Dynegy Inc. ("Dynegy") and certain of its directors. As initially filed, the action purports to be brought as a class action on behalf of Dynegy shareholders who acquired their shares between September 2011 and March 2012. The complaint alleges violations of the federal securities laws by defendants' allegedly making false and misleading statements in securities filings which statements artificially inflated the price of Dynegy stock. The individual defendants are alleged to have been controlling persons of Dynegy. Plaintiff is seeking damages in an unspecified amount. Subsequent to the filing of this action, Dynegy filed for bankruptcy, and a U.S. bankruptcy court has approved a Plan of Reorganization. Plaintiff is proceeding with the action and has filed an amended complaint that purports to be a class action on behalf of Dynegy shareholders who acquired their securities between July 10, 2011 and March 9, 2012. the company believe that it has meritorious defenses to the claims and filed a motion to dismiss on July 19, 2013. On April 30, 2014, the Court granted defendants' motion to dismiss and the case was dismissed with prejudice. Plaintiff has 30 days in which to file an appeal. INTERNATIONAL PAPER: Bristol Park Community Sue Over Flooding ------------------------------------------------------------- NorthEscambia.com reports that several homeowners in the Bristol Park neighborhood have filed suit against International Paper over the severe flooding in their neighborhood. The class action lawsuit, filed on May 13, claims that a breach in an International Paper levee on Eleven Mile Creek sent a rush of water down the creek, making the flooding far worse. "We've heard stories from people of a large rush of water. When you talk to more and more people there was a sudden increase of water that came into their neighborhoods people were not expecting this and it was rushing through their houses and rushing over their cars," attorney J.J. Talbott said. The lawsuit claims that between 10:30 and 11:30 p.m., a large "swell" or "wave" of water breached and overflowed into Eleven Mile Creek, including the Bristol Park and Ashbury Hills subdivisions, Devine Farms Road and other surrounding areas, as a result of International Paper's dam or levee. Both residential areas are located in "Flood Zone X" on flood insurance maps, meaning they are not in special flood hazard areas and require no mandatory flood insurance. The failure, the lawsuit asserts, was the result of IP's negligence in maintaining the Eleven Mile Creek Dam and levee, failure to counteract continued development, failed to control debris buildup in and around the dam, and of a failure to notify those downstream of the potential or ultimate failure of the levee system. The lawsuit seeks damages for loss and damage to personal and real property, diminished property values, loss of enjoyment, mental anguish, loss of income and additional expenses due to the flooding in the neighborhoods. International Paper responded to the lawsuit in a written statement released on May 13 to NorthEscambia.com: "On April 29, 2014, the Pensacola Mill experienced the storm/flood event that the rest of the county experienced. There was significant erosion and wash-out of an inactive erosion control structure near Kingsfield Road. The structure was previously used to control erosion at this now abandoned outfall point, but it has been out of service since the mill completed transition to the pipeline in October of 2012. "Our heartfelt thoughts and prayers go out to all those who have been directly affected by the area floods. Many of our team members were impacted by this event. On April 29, record storm water flows from across the entire 48-square mile watershed of Elevenmile creek rapidly exceeded the capacity of the creek. During and after the storm, the Pensacola mill continued to discharge to our pipeline, which bypasses the Elevenmile creek watershed. No part of the mill's waste treatment facility failed or collapsed during or after the storm event. We have fully communicated with both state and local agencies regarding the impacts of the storm on the Pensacola mill." HEARTLAND PAYMENT: July Hearing Set in Bid to Junk Customer Suit ---------------------------------------------------------------- Motions to dismiss or for summary judgment in In re Heartland Payment Systems, Inc. Customer Data Security Breach Litigation, MDL No. 2046, 4:09-md-2046 are to be fully briefed by June 27, 2014 and heard by the District Court on July 29, 2014, according to the company's May 7, 2014, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 29, 2014. On June 10, 2009, the Judicial Panel on Multidistrict Litigation entered an order centralizing the class action cases for pre-trial proceedings before the United States District Court for the Southern District of Texas, under the caption In re Heartland Payment Systems, Inc. Customer Data Security Breach Litigation, MDL No. 2046, 4:09-md-2046. On August 24, 2009, the court appointed interim co-lead and liaison counsel for the financial institutions. On September 23, 2009, the financial institution plaintiffs filed a Master Complaint in the MDL proceedings, which the company moved to dismiss on October 23, 2009. On December 1, 2011, the Court entered an order granting in part the company's motion to dismiss the financial institution plaintiffs' master complaint against us, but allowing the plaintiffs leave to amend to re-plead certain claims. Plaintiffs elected not to file an amended complaint. The parties then jointly moved for the entry of final judgment on those claims in the master complaint that the Court had dismissed. On August 16, 2012, the Court entered final judgment on the dismissed claims and, on September 17, 2012, Plaintiffs filed a notice of appeal from that final judgment to the United States Court of Appeals for the Fifth Circuit. On September 12, 2012, Plaintiffs stipulated to dismissal with prejudice of the remaining claims pending before the District Court. Briefing on Plaintiffs' appeal was complete on February 8, 2013. On September 3, 2013, the United States Court of Appeals for the Fifth Circuit reversed the District Court, holding that the economic loss doctrine under New Jersey law does not preclude the financial institution plaintiffs' negligence claim at the motion to dismiss stage, but declined to address in the first instance Heartland's other arguments for affirming the District Court. The Fifth Circuit remanded to the District Court for further proceedings. On March 14, 2014, the District Court set a schedule for further proceedings. Limited discovery on choice-of-law issues is to be completed by May 16, 2014. Motions to dismiss or for summary judgment are to be fully briefed by June 27, 2014 and heard by the District Court on July 29, 2014. KBR INC: Faces "Kohut" Suit Alleging Securities Law Violations -------------------------------------------------------------- Joseph Kohut, Individually and on Behalf of All Others Similarly Situated v. KBR, Inc., William P. Utt, Brian Ferraioli, and Susan K. Carter, Case No. 4:14-cv-01287 (S.D. Tex., May 9, 2014) is brought on behalf of purchasers of KBR securities between April 25, 2013, and May 5, 2014, seeking to pursue remedies under the Securities Exchange Act of 1934. KBR is a Delaware corporation headquartered in Houston, Texas. KBR is a global engineering, construction and services company supporting the energy, hydrocarbons, power, minerals, civil infrastructure, government services, industrial and commercial market segments. KBR offers services through its Gas Monetization, Hydrocarbons, Infrastructure, Government and Power, Services and other business segments. The Individual Defendants are directors and officers of the Company. The Plaintiff is represented by: Sammy Ford IV, Esq. ABRAHAM, WATKINS, NICHOLS, SORRELS, AGOSTO & FRIEND 800 Commerce Street Houston, TX 77002 Telephone: (713) 222-7211 Facsimile: (713) 225-0827 E-mail: sford@abrahamwatkins.com - and - Lionel Z. Glancy, Esq. Michael Goldberg, Esq. Robert V. Prongay, Esq. Elaine Chang, Esq. GLANCY BINKOW & GOLDBERG LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 Facsimile: (310) 201-9160 E-mail: lglancy@glancylaw.com mmgoldberg@glancylaw.com rprongay@glancylaw.com echang@glancylaw.com - and - Howard G. Smith, Esq. LAW OFFICES OF HOWARD G. SMITH 3070 Bristol Pike, Suite 112 Bensalem, PA 19020 Telephone: (215) 638-4847 Facsimile: (215) 638-4867 E-mail: howardsmith@howardsmithlaw.com KERR MCGEE: Removed "Whisenant" Class Suit to W.D. Oklahoma ----------------------------------------------------------- The class action lawsuit styled Whisenant v. Kerr McGee Oil & Gas Onshore LP, et al., Case No. CJ-2014-13, was removed from the District Court of Beaver County to the U.S. District Court for the Western District of Oklahoma (Oklahoma City). The Oklahoma District Court Clerk assigned Case No. 5:14-cv-00475-W to the proceeding. The Plaintiff is represented by: Rex A. Sharp, Esq. GUNDERSON SHARP & WALKE LLP 5301 W 75th St. Prairie Village, KS 66208 Telephone: (913) 901-0500 Facsimile: (913) 901-0419 E-mail: rsharp@midwest-law.com The Defendants are represented by: Patrick M. Ryan, Esq. Phillip G. Whaley, Esq. RYAN WHALEY COLDIRON SHANDY PC 119 N Robinson St., Suite 900 Oklahoma City, OK 73102 Telephone: (405) 239-6040 Facsimile: (405) 239-6766 E-mail: pryan@ryanwhaley.com pwhaley@ryanwhaley.com LADENBURG THALMANN: Dismissal of Securities Lawsuit Under Appeal ---------------------------------------------------------------- The plaintiff in a securities suit against Ladenburg Thalmann Financial Services Inc. in the U.S. District Court for the Southern District of Florida filed a notice of appeal against the dismissal of the case, according to the company's May 7, 2014, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 29, 2014. In December 2011, a purported class action suit was filed in the U.S. District Court for the Southern District of Florida ("District Court") against FriendFinder Networks, Inc. ("FriendFinder"), various individuals, Ladenburg and another broker-dealer as underwriters for the May 11, 2011 FriendFinder initial public offering. On June 20, 2013, the plaintiff filed its second amended complaint, alleging that the defendants, including Ladenburg, are liable for violations of federal securities laws. The amended complaint did not specify the amount of damages sought. In September 2013, FriendFinder filed a voluntary petition under Chapter 11 of the U.S. Bankruptcy Code in federal bankruptcy court in Delaware, and in December 2013, the bankruptcy court confirmed the FriendFinder plan of reorganization. As a result, the plaintiff is precluded from pursuing claims against FriendFinder. On March 18, 2014, the District Court granted the remaining defendants,' including Ladenburg's motions to dismiss and dismissed the complaint with prejudice. On April 15, 2014, the plaintiff filed a notice of appeal. LADENBURG THALMANN: Inks MoU to Settle Calif. Securities Suit ------------------------------------------------------------- Ladenburg Thalmann Financial Services Inc. entered into a memorandum of understanding to settle a securities suit filed in the Superior Court of California for San Mateo County, according to the company's May 7, 2014, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 29, 2014. In December 2012, a purported class action suit was filed in the Superior Court of California for San Mateo County against Worldwide Energy & Manufacturing, Inc. ("WEMU"), certain individuals, and Ladenburg as placement agent for a 2010 offering of WEMU securities. The complaint alleges that the defendants, including Ladenburg, are liable for violations of state securities laws, and does not specify the amount of damages sought. On January 27, 2014, the parties entered into a memorandum of understanding that, once memorialized in a settlement agreement would be subject to court approval, resolve all claims in the complaint. The amount expected to be paid by Ladenburg in settlement was accrued at December 31, 2013. MARRIOTT VACATIONS: Removed "Desantis" Suit to M.D. Florida ----------------------------------------------------------- The purported class action lawsuit titled Desantis v. Marriott Vacations Worldwide Corp., et al., Case No. 2014-CA-003283-O, was removed from the Orange County Circuit Court to the U.S. District Court for the Middle District of Florida (Orlando). The District Court Clerk assigned Case No. 6:14-cv-00733-GAP-KRS to the proceeding. The lawsuit seeks damages and relief from Marriott for using alleged unfair, deceptive and unconscionable means to impair the value and rights of Marriott Vacation Club members' timeshare interests to extract more money for an "upgraded plan." Marriott Vacations Worldwide Corp. is a publicly traded corporation headquartered in Orlando, Florida. Marriott Vacations owns and runs Marriott Vacation Club, Grand Residences by Marriott and the Ritz-Carlton Destination Club. The Plaintiff is represented by: Janet R. Varnell, Esq. Brian W. Warwick, Esq. Steven Thomas Simmons, Jr., Esq. VARNELL & WARWICK, PA P.O. Box 1870 Lady Lake, FL 32158 Telephone: (352) 753-8600 Facsimile: (352) 753-8606 E-mail: jvarnell@varnellandwarwick.com bwarwick@varnellandwarwick.com ssimmons@varnellandwarwick.com - and - Stephen J. Fearon, Jr., Esq. Caitlin Duffy, Esq. Raymond Barto, Esq. SQUITIERI & FEARON, LLP 32 East 57th Street, 12th Floor New York, NY 10022 Telephone: (212) 421-6492 Facsimile: (212) 421-6553 E-mail: stephen@sfclasslaw.com caitlin@sfclasslaw.com - and - Jeff Korek, Esq. GERSOWITZ LIBO & KOREK, P.C. 111 Broadway, 12th Floor New York, NY 10006 Telephone: (212) 285-4410 Facsimile: (212) 385-4417 E-mail: jkorek@lawyertime.com The Defendants are represented by: Dawn Ivy Giebler-Millner, Esq. GREENBERG TRAURIG, LLP 450 S Orange Ave., Suite 650 PO Box 4923 Orlando, FL 32802-4923 Telephone: (407) 420-1000 Facsimile: (407) 420-5909 E-mail: gieblerd@gtlaw.com METHODIST HOSPITAL: Sued for Failing to Properly Pay Employees -------------------------------------------------------------- Joy Corcione, Individually, and On Behalf of All Others Similarly Situated v. Methodist Hospital d/b/a Houston Methodist, Houston Methodist Hospital, Houston Methodist-Texas Medical Center, Methodist Hospital-Houston, Methodist Hospital-Texas Medical Center, and Methodist Hospital System, Case No. 3:14-cv-00160 (S.D. Tex., May 9, 2014) implicates the alleged longstanding policy of Methodist Hospital, which fails to properly compensate non-exempt employees for work performed. Methodist Hospital is a domestic, non-profit corporation. The Defendants operate a chain of hospitals that provides healthcare services. The Plaintiff is represented by: David W. Hodges, Esq. Galvin B. Kennedy, Esq. KENNEDY HODGES, L.L.P. 711 West Alabama St. Houston, TX 77006 Telephone: (713) 523-0001 Facsimile: (713) 523-1116 E-mail: dhodges@kennedyhodges.com gkennedy@KennedyHodges.com MORTGAGE ELECTRONIC: Dist. Ct. Ruling in "Curtone" Suit Reversed ---------------------------------------------------------------- BRIAN CUTRONE AND JESSICA CERVONE, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiffs-Appellees, v. MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., Defendant-Appellant, NO. 14-455-CV is an appeal from an order of the United States District Court for the Eastern District of New York, holding the defendant- appellant's notice of removal untimely and remanding this putative class action to state court. The district court concluded that the plaintiffs' complaint contained sufficient information to put MERS on notice of the size of the putative class and amount in controversy to establish subject matter jurisdiction pursuant to 28 U.S.C. Section 1332(d), and that MERS's notice of removal, filed more than 30 days after receipt of the complaint, was therefore untimely under 28 U.S.C. Section 1446(b)(1). The United States Court of Appeals, Second Circuit, on April 17, 2014, reversed and held that, in Class Action Fairness Act cases, the 30-day removal periods of 28 U.S.C. Sections 1446(b)(1) and (b)(3) are not triggered until the plaintiff serves the defendant with an initial pleading or other paper that explicitly specifies the amount of monetary damages sought or sets forth facts from which an amount in controversy in excess of $5,000,000 can be ascertained. The Second Circuit, therefore, vacated the district court's order remanding the case to state court and remanded the case for proceedings consistent with its opinion, a copy of which is available at http://is.gd/uHldwifrom Leagle.com. CHARLES C. MARTORANA -- cmartorana@hblaw.com -- Hiscock & Barclay, LLP, Buffalo, NY, for Defendant-Appellant. ANDREW S. LOVE -- alove@rgrdlaw.com -- (Samuel H. Rudman, Mark S. Reich, William J. Geddish, Susan K. Alexander, on the brief), Robbins Geller Rudman & Dowd LLP, San Francisco, CA, and Melville, NY, for Plaintiffs-Appellees. NATIONAL SPORTS: Has Sent Unsolicited Text Messages, Suit Says -------------------------------------------------------------- Raymond S. Tolson IV, individually and on behalf of all others similarly situated v. National Sports Services, Inc., and Concordia Media Services, Case No. 1:14-cv-00442-LY (W.D. Tex., May 9, 2014) is brought to secure redress relating to the Defendants' alleged willful violation of the Telephone Consumer Protection Act by causing to be made unsolicited text message calls to cellular telephones. According to the complaint, the Defendants harvest cellular telephone numbers for the purpose of transmitting SMS advertisements to large groups of cellular subscribers. National Sports Services, Inc., and Concordia Media Services are Nevada corporations headquartered in Las Vegas, Nevada. The Plaintiff is represented by: W. Craft Hughes, Esq. Jarrett L. Ellzey, Esq. Brian B. Kilpatrick, Esq. HUGHES ELLZEY, LLP 2700 Post Oak Blvd., Suite 1120 Galleria Tower I Houston, TX 77056 Telephone: (713) 554-2377 Facsimile: (888) 995-3335 E-mail: craft@crafthugheslaw.com jarrett@crafthugheslaw.com brian@hughesellzey.com NBN COMMERCIAL: Has Refused to Pay Overtime Wages, Suit Claims -------------------------------------------------------------- Gerardo Gonzalez Perez and all others similarly situated under 29 U.S.C. 216(B) v. NBN Commercial Group, LLC, Jagjit S Hilvi a/k/a Jagjit Nilvi, Case No. 3:14-cv-01726-P (N.D. Tex., May 9, 2014) alleges that the Defendants willfully and intentionally refused to pay the Plaintiff's overtime wages as required by the Fair Labor Standards Act. NBN Commercial Group, LLC, is a company that regularly transacts business within Dallas County. Jagjit S Hilvi, also known as Jagjit Nilvi, is a corporate officer, owner or manager of the Company. The Plaintiff is represented by: Jamie Harrison Zidell, Esq. J.H. ZIDELL, P.C. 6310 LBJ Freeway, Suite 112 Dallas, TX 75240 Telephone: (972) 233-2264 Facsimile: (972) 386-7610 E-mail: zabogado@aol.com NEVADA: To Discuss Class Action Over Health Insurance Exchange -------------------------------------------------------------- The Associated Press reports that a state board overseeing Nevada's bungled health insurance exchange was set to discuss options to minimize the state's exposure in a class-action lawsuit, including invoking a contract provision that could put the legal onus on Xerox. The board was on May 20 scheduled to discuss the lawsuit filed in Clark County on behalf of hundreds of consumers who claim they paid for health insurance but didn't receive coverage and were left with big medical bills. Discussion comes as the Las Vegas lawyer who filed the lawsuit said on May 14 he'll seek a court order requiring the state or Xerox to provide immediate coverage for several people struggling with serious illness. "These patients are suffering life-and-death consequences now," attorney Matthew Callister said. Mr. Callister, a former Las Vegas councilman and Democratic lawmaker who served in both the state Assembly and Senate, said about 200 people have joined the lawsuit so far. Xerox was awarded a $75 million contract to build and operate Nevada's online exchange, Nevada Health Link, which has been plagued by billing and computer errors since it went live Oct. 1. Xerox is paid as it meets performance benchmarks and to date has received about $12 million, most of it related to a Henderson call center. A provision in the contract states that to the fullest extent permitted by law, Xerox "shall indemnify, hold harmless and defend" the state from liability. "The board is going to request that Xerox provide defense and indemnify the state of any consequences stemming from the class action lawsuit filed in Clark County," exchange spokesman CJ Bawden said on May 14. Xerox, when asked for comment, issued a statement staying it will "await the appropriate legal venue to respond to any of the matters raised by Mr. Callister." "We will let the facts of these matters come out at the appropriate time and place. In the meantime, we continue focusing our energies and resources on getting all aspects of the Nevada Health Link system right and helping as many Nevadans as possible get health insurance," the statement said. Because of myriad website problems, the state authorized a special enrollment period for anyone who attempted but failed to successfully complete their application by the March 31 deadline. That grace period ends May 30. As of May 10, the exchange said 47,245 Nevadans have selected plans and about 35,034 have paid premiums. Those enrollment numbers are far fewer than the 118,000 initially projected. The board could also decide at the meeting whether to keep Xerox as the operator and fix the system in time for the next open enrollment period this fall; go with a successful system used in another state; solicit a new bid; or join the federal health exchange. But that last option would require action by the state Legislature, which doesn't convene until February -- after the next enrollment period closes. Steve Fisher, interim director of the exchange, and others were meeting with federal officials in Washington, D.C., to discuss Nevada's alternatives. OPPENHEIMER CALIFORNIA: July 31 Settlement Fairness Hearing Set --------------------------------------------------------------- The following release was issued on May 13 by The Shuman Law Firm: IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Master Docket No. 09-md-02063-JLK-KMT IN RE: OPPENHEIMER ROCHESTER FUNDS GROUP SECURITIES LITIGATION This Document Relates To: All Actions Except Those Involving: The Oppenheimer California Municipal Fund SUMMARY NOTICE OF PENDENCY AND PROPOSED SETTLEMENTS OF CLASS ACTIONS AND SUMMARY NOTICE OF MOTION FOR AWARDS OF ATTORNEYS' FEES AND REIMBURSEMENT OF EXPENSES TO: All Persons Who Purchased or Acquired Shares of One or More of the Following Oppenheimer or Rochester Mutual Funds (collectively, the "Funds"): 1. Oppenheimer AMT-Free Municipals Fund (the "AMT-Free Fund") between May 13, 2006 and October 21, 2008, inclusive; 2. Oppenheimer AMT-Free New York Municipal Fund (the "AMT-Free New York Fund") between May 21, 2006 and October 21, 2008, inclusive; 3. Oppenheimer Rochester National Municipal Fund (the "National Fund") between March 13, 2006 and October 21, 2008, inclusive; 4. Oppenheimer New Jersey Municipal Fund (the "New Jersey Fund") between April 24, 2006 and October 21, 2008, inclusive; 5. Oppenheimer Pennsylvania Municipal Fund (the "Pennsylvania Fund") between September 27, 2006 and November 26, 2008, inclusive; and 6. Rochester Fund Municipals (the "Rochester Fund") between February 26, 2006 and October 21, 2008, inclusive. You Could Receive a Payment from One or More of the Six Class Action Settlements Relating to These Funds (Collectively, the "Settlements"). YOU ARE HEREBY NOTIFIED, pursuant to an Order of the United States District Court for the District of Colorado, that a hearing will be held on July 31, 2014 at 10 a.m. before the Honorable John L. Kane at the Alfred A. Arraj United States Courthouse, 901 19th Street, Denver, Colorado, for the purpose of determining, among other things: (1) whether the proposed Settlements of the claims in the six separate actions involving the Oppenheimer Rochester Funds listed above (the "Actions") for the total sum of $89,500,000 in cash should be approved by the Court as fair, reasonable and adequate (see the table below for the settlement amounts for each Fund); (2) whether the Actions should be dismissed with prejudice pursuant to the terms and conditions of the Settlements; (3) whether the Distribution Plan for distributing the proceeds of the Settlements should be approved; and (4) whether the applications of Lead Counsel for the payment of attorneys' fees and reimbursement of expenses incurred in connection with the Actions, including awards to the representative class plaintiffs in the Actions, should be approved. Your rights may be affected by the Settlements of these Actions if you purchased or acquired any of the following classes of shares from the Funds listed below during the applicable time periods: Fund & Settlement Amount AMT-Free Fund $17,109,000 AMT-Free New York Fund $4,241,000 National Fund $26,850,000 New Jersey Fund $3,374,000 Pennsylvania Fund $4,341,000 Rochester Fund $33,585,000 Share Classes & Ticker Symbols A, B, or C shares (OPTAX, OTFBX or OMFCX) A, B, or C shares (OPNYX, ONYBX or ONYCX) A, B, or C shares (ORNAX, ORNBX, or ORNCX) A, B, or C shares (ONJAX, ONJBX or ONJCX) A, B, or C shares (OPATX, OPABX or OPACX) A, B, C, or Y shares (RMUNX, RMUBX, RMUCX, or RMUYX) Time Period May 13, 2006 through October 21, 2008, inclusive May 21, 2006 through October 21, 2008, inclusive March 13, 2006 through October 21, 2008, inclusive April 24, 2006 through October 21, 2008, inclusive September 27, 2006 through November 26, 2008, inclusive February 26, 2006 through October 21, 2008, inclusive If you have not already received a copy of the Notice of Pendency and Proposed Settlements of Class Actions and Notice of Motion for Awards of Attorneys' Fees and Reimbursement of Expenses (the "Notice"), go to www.oppenheimersettlement.com or write to: Oppenheimer Rochester Funds Group Securities Litigation, Claims Administrator, P.O. Box 3518, Portland, OR 97208-3518. The Notice contains additional important information. To qualify for a payment, you must be an eligible Class Member. NOTE: Class Members who held shares in the Funds directly through Oppenheimer do not need to submit a Proof of Claim form ("Proof of Claim"). Class Members who invested in the Funds through a broker-dealer or other intermediary must submit a Proof of Claim, postmarked no later than August 28, 2014, to the address contained in the Proof of Claim. If you are a member of one of the classes and do not submit a valid Proof of Claim, where required, then you may not receive a payment from the Settlements, but nevertheless, you will be bound by the final judgment(s) entered by the Court in connection with the Settlements, and claims that you might have will be dismissed or released, unless you take the steps necessary to exclude yourself from the Classes. Any objection to the Settlements or the motion for the award of attorneys' fees and reimbursement of expenses, including awards to the representative class plaintiffs, must be postmarked no later than July 2, 2014 and mailed to the following persons: 1. Clerk of the Court Alfred A. Arraj United States Courthouse Room A105 901 19th Street Denver, Colorado 80294-3589 Plaintiffs' Liaison Counsel: 2. Kip B. Shuman The Shuman Law Firm 885 Arapahoe Avenue Boulder, CO 80302 Defendants' Counsel: 3. Matthew L. Larrabee Dechert LLP 1095 Avenue of the Americas New York, NY 10036 Defendants' Counsel: 4. Arthur H. Aufses III Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas New York, NY 10036 If you do not want to be legally bound by the Settlements, you must exclude yourself by July 2, 2014, or you will not be able to sue, or continue to sue, Defendants about the legal claims in the Actions. If you exclude yourself, you cannot get money from the Settlements. The detailed Notice explains how to exclude yourself or to object. Any request for exclusion from the Classes must be postmarked no later than July 2, 2014 and mailed to: Oppenheimer Rochester Funds Group Securities Litigation EXCLUSIONS Claims Administrator P.O. Box 3518 Portland, OR 97208-3518 PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING THIS NOTICE. If you have any questions about the Settlements, you may contact Lead Counsel for Plaintiffs at the addresses listed in the Notice or the Claims Administrator at the toll free number (877) 273-9532 or via email at info@oppenheimersettlement.com or visit www.oppenheimersettlement.com for more information. By Order of the Court United States District Court District of Colorado PAIN THERAPEUTICS: Certified Securities Suit Continues in Texas --------------------------------------------------------------- The certified securities suit KB Partners I, L.P., Individually and On Behalf of All Others Similarly Situated v. Pain Therapeutics, Inc., Remi Barbier, Nadav Friedmann and Peter S. Roddy continues in the U.S. District Court for the Western District of Texas, according to the company's May 7, 2014, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 29, 2014. On December 2, 2011, a purported class action was filed against the company and the company's executive officers in the U.S. District Court for the Western District of Texas. This complaint alleges, among other things, violations of Section 10(b), Rule 10b-5, and Section 20(a) of the Exchange Act arising out of allegedly untrue or misleading statements of material facts made by the company regarding REMOXY's development and regulatory status during the purported class period, February 3, 2011 through June 23, 2011. The complaint states that monetary damages are being sought, but no amounts are specified. On June 3, 2013, the Court certified a class consisting of all purchasers of the company's common stock and a class period of December 27, 2010 through June 26, 2011. PEPCO HOLDINGS: Faces Suit Over Proposed Merger with Exelon ----------------------------------------------------------- Pepco Holdings, Inc. is facing a lawsuit filed on behalf of public stockholders challenging its proposed merger with Exelon Corporation, according to the company's May 7, 2014, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 29, 2014. Pending or potential future litigation against PHI and its directors challenging the proposed Merger may prevent the Merger from being completed within the anticipated timeframe. PHI and its directors have been named as defendants in a purported class action lawsuit filed by a plaintiff on behalf of herself and other public stockholders challenging the proposed Merger and seeking, among other things, to enjoin the defendants from consummating the Merger on the agreed-upon terms. If a plaintiff in this or any other litigation that may be filed in the future is successful in obtaining an injunction prohibiting the parties from completing the Merger on the terms contemplated by the Merger Agreement, the injunction may prevent the completion of the Merger in the expected timeframe or altogether. While PHI believes that this lawsuit is without merit and will not succeed, and intends to vigorously defend itself in this matter, the pending litigation creates additional uncertainty relating to the consummation of the Merger. PLIMUS INC: Renewed Class Cert. Motion in "Yordy" Suit Denied ------------------------------------------------------------- District Judge Thelton E. Henderson denied a renewed motion for class certification in the case captioned KIMBERLY YORDY, Plaintiff, v. PLIMUS, INC., Defendant, CASE NO. 12-CV-00229-THE, (N.D. Cal.). A copy of the April 15, 2014 ruling is available at http://is.gd/RJzrALfrom Leagle.com. Judge Henderson found that Ms. Yordy failed to establish that there is a common contention that "is central to the validity of each of the claims" and that can be resolved across the class. She has failed to establish Rule 23(a)'s commonality requirement, he added. Kimberly Yordy, Plaintiff, represented by Mark Stephen Eisen -- meisen@edelson.com -- Edelson PC, Benjamin Harris Richman -- brichman@edelson.com -- Edelson PC, Christopher Dore, Edelson PC, Christopher Lillard Dore -- cdore@edelson.com -- Edelson PC & Rafey S. Balabanian -- rbalabanian@edelson.com -- Edelson PC. Plimus, Inc, a California corporation, Defendant, represented by Nickolas Alexander Kacprowski -- nickolas.kacprowski@kirkland.com -- Kirkland & Ellis LLP, Jeffrey L. William, Kirkland & Ellis LLP, Jordan Mitchell Heinz -- jordan.heinz@kirkland.com -- Kirkland & Ellis LLP & Sylvia Nichole Winston -- sylvia.winston@kirkland.com -- Kirkland & Ellis LLP. POWER BALANCE: Case Mgmt. Conf. in CFC Suit Reset to June 2014 -------------------------------------------------------------- District Judge Edward M. Chen ruled on a request to vacate a case management conference in the lawsuit captioned C.F.C., minor, by and through CHRISTINE F., his parent and guardian, on behalf of himself and all others similarly situated, Plaintiff, v. POWER BALANCE LLC; a Delaware Limited Liability Company. Defendants, CASE NO. 3:11-CV-00487-EMC, (N.D. Cal.) in light of ongoing automatic stay under 11 U.S.C. Power Balance, LLC has filed a voluntary Chapter 11 petition for relief in the United States Bankruptcy Court for the Central District of California. It also filed a Notice of Pending Chapter 11 Bankruptcy and Notice of Automatic Stay in this court. In light of the ongoing automatic stay under Bankruptcy Code Section 362(a) and the Plaintiff's intent to dismiss the case, the Plaintiff requested that the Court vacate the Case Management Conference that was scheduled for April 24, 2014, and reset it to a date in June 2014. "It is so ordered," ruled Judge Chen in his April 21, 2014 order, a copy of which is available at http://is.gd/gmSgdUfrom Leagle.com. LEXINGTON LAW GROUP, Mark N. Todzo -- mtodzo@lexlawgroup.com -- Howard Hirsch, San Francisco, CA. Christopher M. Burke -- cburke@scott-scott.com -- SCOTT + SCOTT LLP, San Diego, CA, Attorneys for Plaintiff, C.F.C., a minor, by and through Christine F., his parent and guardian. QEP RESOURCES: Appeal Court Reinstates Claims in Gatti v. La. ------------------------------------------------------------- The Louisiana First Circuit Court of Appeal reversed and reinstated plaintiffs' claims in the suit Gatti et al v. State of Louisiana et al, 589,350, according to QEP Resources, Inc.'s May 7, 2014, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 29, 2014. Gatti et al v. State of Louisiana et al, 589,350, 19th JDC, Parish of East Baton Rouge, Louisiana. In this putative class action arising out of the unitization practices and orders of the Louisiana Commissioner of Conservation (Commissioner), plaintiffs seek to represent a class of all Haynesville Shale mineral owners (alleged to be over 50,000 in number) against the Commissioner and all Haynesville Shale unit operators. Plaintiffs filed their complaint on April 8, 2010, and claim that the Commissioner exceeded his statutory authority in creating and perpetuating units larger than the area that can be efficiently and economically drained by a single well. They seek declaratory relief that would nullify all such improper orders, along with an unspecified amount of monetary damages from the unit operators sufficient to compensate the putative class members for the alleged dilution of their true interest in unit production as a result of "oversized" units and the "cloud on title" caused by having excessive and improperly sized units purport to hold their mineral leases via unit operations. All defendants filed exceptions to the plaintiffs' petition on the primary ground that plaintiffs had failed to comply with the exclusive statutory judicial review procedure (Louisiana Revised Statutes 30:12), which the trial court granted, dismissing the action in its entirety. On January 15, 2014, the Louisiana First Circuit Court of Appeal reversed and reinstated plaintiffs' claims. Defendants intend to seek review of the Louisiana Supreme Court, which review is discretionary. QEP RESOURCES: "Gagne" Plaintiffs Pursue Class Status ----------------------------------------------------- The fourth amended motion to bring as a class action, the suit Yannick Gagne and others similarly situated v. QEP Resources, Inc., No. 480-06-1-132 pending in the Superior Court, Province of Quebec, Canada, was filed on February 19, 2014, according to the company's May 7, 2014, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 29, 2014. Plaintiffs seek to represent a class of all persons who sustained damages as a result of the July 6, 2013 train derailment in Lac- Megantic, Quebec, which resulted in substantial loss of life and property. The fourth amended motion to authorize the bringing of a class action was filed on February 19, 2014, and names numerous defendants. The plaintiffs contend that QEP, and other producer defendants, sold Bakken crude oil to third-party purchasers in North Dakota, who resold the oil and transported it on the derailed train. The allegations are that QEP and the producer defendants, among other things, failed to ensure that the oil was adequately processed to remove volatile gases and vapors, knowingly added volatile light end petroleum liquids and/or vapors or blended the crude with condensate, failed to conduct adequate well site testing to determine the proper hazard classification of the oil, failed to properly classify the shipping requirements for the oil, failed to take reasonable care to ensure that the oil was properly labeled and shipped, failed to identify the risk of the train derailment and take action to prevent it, and failed to adopt, implement and enforce rules and procedures pertaining to the safe shipment of the oil. The plaintiffs seek damages, but specific monetary damages are not asserted. QUICKEN LOANS: Faces Class Action in Florida Over TCPA Violations ----------------------------------------------------------------- Andrew Westney, writing for Law360, reports that a Florida man on May 11 brought a class action against home mortgage lender Quicken Loans Inc. in Florida federal court, saying the company repeatedly called his cellphone using contact information purchased from a credit reporting bureau in violation of the Telephone Consumer Protection Act. Christopher Legg claims that Quicken acquired "trigger leads" -- contact information for people who recently had their credit history investigated by rival mortgage lenders -- and then violated the TCPA by calling them using an autodialer, which can randomly and sequentially generate telephone numbers and dial them by itself. Mr. Legg says Quicken called him several times in January and February 2013 without his prior consent using an autodialer, playing a prerecorded message or both. The company made cold calls to more than 100 people who were not customers of the company in January 2013, using an autodialer after obtaining phone numbers from sources other than the recipients, such as Experian PLC and other credit reporting agencies that advertise the sale of trigger leads, the complaint alleges. "Many of these individuals were called more than once, and Defendant lacks a sufficiently adequate system for limiting the number of autodialed or prerecorded calls to cellular phones for which it does not have prior express permission to call," the complaint states. The caller ID numbers for the calls usually showed up differently, with various area codes, but each of them linked to Quicken, the complaint says. The calls, which numbered in the thousands, would sometimes involve Quicken employees attempting to sell the company's products, according to the complaint. Mr. Legg is seeking treble damages per knowing or willful violation of the TCPA for each member of the putative class or $1,500 per violation. The class would comprise all U.S. residents who received a cellphone call, without having given out their numbers, within the past four years from Quicken that was made with an autodialer or played an artificial or prerecorded voice message. A Quicken spokesman slammed the lawsuit, saying the claims are meritless. "Quicken Loans has always followed all applicable laws related to contacting our clients. We believe this claim is completely baseless," the spokesman said. "This is simply another case of 'gotcha' that greedy class action attorneys spring on job- producing companies in hopes of extorting a settlement. . . . We plan to vigorously defend this case and expect it to be quickly dismissed." The plaintiff is represented by Scott David Owens and Patrick Christopher Crotty of The Law Office of Scott D. Owens and Alexander H. Burke of Burke Law Offices LLC. The case is Christopher Legg v. Quicken Loans Inc., case number 0:14-cv-61116, in the U.S. District Court for the Southern District of Florida. SEALED AIR: Grace Suit Over Asbestos-Containing Products Junked --------------------------------------------------------------- The Manitoba Court of Queen's Bench dismissed putative class proceedings filed as a result of W. R. Grace & Co.'s marketing, selling, processing, manufacturing, distributing and/or delivering asbestos or asbestos-containing products in Canada, according to Sealed Air Corporation's May 7, 2014, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 29, 2014. In November 2004, the Company's Canadian subsidiary Sealed Air (Canada) Co./Cie learned that it had been named a defendant in the case of Thundersky v. The Attorney General of Canada, et al. (File No. CI04-01-39818), pending in the Manitoba Court of Queen's Bench. Grace and W. R. Grace & Co. - Conn. were also named as defendants. The plaintiff brought the claim as a putative class proceeding and sought recovery for alleged injuries suffered by any Canadian resident, other than in the course of employment, as a result of Grace's marketing, selling, processing, manufacturing, distributing and/or delivering asbestos or asbestos-containing products in Canada prior to the Cryovac Transaction. A plaintiff filed another proceeding in January 2005 in the Manitoba Court of Queen's Bench naming the Company and specified subsidiaries as defendants. The latter proceeding, Her Majesty the Queen in Right of the Province of Manitoba v. The Attorney General of Canada, et al. (File No. CI05-01-41069), sought the recovery of the cost of insured health services allegedly provided by the Government of Manitoba to the members of the class of plaintiffs in the Thundersky proceeding. In October 2005, the company learned that six additional putative class proceedings had been brought in various provincial and federal courts in Canada seeking recovery from the Company and its subsidiaries Cryovac, Inc. and Sealed Air (Canada) Co./Cie, as well as other defendants including W. R. Grace & Co. and W. R. Grace & Co. - Conn., for alleged injuries suffered by any Canadian resident, other than in the course of employment (except with respect to one of these six claims), as a result of Grace's marketing, selling, manufacturing, processing, distributing and/or delivering asbestos or asbestos-containing products in Canada prior to the Cryovac transaction. Grace and W. R. Grace & Co. - Conn. agreed to defend, indemnify and hold harmless the Company and its affiliates in respect of any liability and expense, including legal fees and costs, in these actions. In April 2001, Grace Canada, Inc. had obtained an order of the Superior Court of Justice, Commercial List, Toronto (the "Canadian Court"), recognizing the Chapter 11 actions in the United States of America involving Grace Canada, Inc.'s U.S. parent corporation and other affiliates of Grace Canada, Inc., and enjoining all new actions and staying all current proceedings against Grace Canada, Inc. related to asbestos under the Companies' Creditors Arrangement Act. That order has been renewed repeatedly. In November 2005, upon motion by Grace Canada, Inc., the Canadian Court ordered an extension of the injunction and stay to actions involving asbestos against the Company and its Canadian affiliate and the Attorney General of Canada, which had the effect of staying all of the Canadian actions. The parties finalized a global settlement of these Canadian actions (except for claims against the Canadian government). That settlement, which has subsequently been amended (the "Canadian Settlement"), will be entirely funded by Grace. The Canadian Court issued an Order on December 13, 2009 approving the Canadian Settlement. The company does not have any positive obligations under the Canadian Settlement, but it is a beneficiary of the release of claims. The release in favor of the Grace parties (including us) became operative upon the effective date of a plan of reorganization in Grace's United States Chapter 11 bankruptcy proceeding. As filed, the PI Settlement Plan contemplates that the claims released under the Canadian Settlement will be subject to injunctions under Section 524(g) of the Bankruptcy Code. As indicated, the Bankruptcy Court entered the Bankruptcy Court Confirmation Order on January 31, 2011 and the Clarifying Order on February 15, 2011 and the District Court entered the Original District Court Confirmation Order on January 30, 2012 and the Amended District Court Confirmation Order on June 11, 2012. The Canadian Court issued an Order on April 8, 2011 recognizing and giving full effect to the Bankruptcy Court's Confirmation Order in all provinces and territories of Canada in accordance with the Bankruptcy Court Confirmation Order's terms. The PI Settlement Plan became effective on February 3, 2014. In accordance with the December 31, 2009 order of the Canadian court, on the Effective Date the actions became permanently stayed until they are amended to remove the Grace parties as named defendants. The actions in the Manitoba Court of Queen's Bench were dismissed by the Manitoba court as against the Grace parties on February 19, 2014 and it is anticipated that the remaining actions will now also be dismissed. SELECTION MANAGEMENT: Removed "Greco" Suit to S.D. California ------------------------------------------------------------- The class action lawsuit captioned Greco v. Selection Management Systems, Inc., et al., Case No. 37-2014-00085074-CU-BT-CTL, was removed from the Superior Court of the State of California for the County of San Diego to the U.S. District Court for the Southern District of California (San Diego). The District Court Clerk assigned Case No. 3:14-cv-01174-JM-NLS to the proceeding. The case asserts personal injury claims. The Plaintiff is represented by: Jeffrey Spencer, Esq. THE SPENCER LAW FIRM 903 Calle Amanecer, Suite 220 San Clemente, CA 92673 Telephone: (949) 240-8595 Facsimile: (949) 240-8515 E-mail: jps@spencerlaw.com The Defendants are represented by: Tim Jude Vanden Heuvel, Esq. LEWIS BRISBOIS BISGAARD & SMITH, LLP 701 B Street, Suite 1900 San Diego, CA 92101 Telephone: (619) 233-1006 Facsimile: (619) 233-8627 E-mail: tim.vandenheuvel@lewisbrisbois.com SPRINT CORP: 3rd Cir. Affirms Ruling in Sales Practices Case ------------------------------------------------------------ In IN RE: SPRINT PREMIUM DATA PLAN MARKETING AND SALES PRACTICES LITIGATION Michael Peggins; James Hanks; David Salvatierra, Appellants, NO. 12-4628, Michael Peggins, James Hanks, and David Salvatierra appealed a district court's order enjoining them from continuing an action filed in California state court, captioned Michael Peggins and James Hanks v. Sprint Solutions, et al., Case No. 37-2012-00097719-CU-MC-CTL, Superior Court of the State of California, County of San Diego. The order was entered pursuant to the All Writs Act, 28 U.S.C. Section 1651, and the Anti-Injunction Act, 28 U.S.C. Section 2283. The United States Court of Appeals, Third Circuit, on April 16, 2014, affirmed the district court's ruling and found that the district court, in its thorough and thoughtful December 5, 2012, Opinion in support of its Order granting the injunction, fully and completely explained why the injunction it issued pursuant to the All Writs Act and the Anti-Injunction Act was necessary in aid of its jurisdiction. A copy of the Third Circuit's decision is available at http://is.gd/JVpvJBfrom Leagle.com. TASTEE KREME: Does Not Pay Delivery Drivers Overtime, Class Says ---------------------------------------------------------------- Marcos Daniel Esparza and Salomon Cortez, Individually and on behalf of other employees similarly situated v. Tastee Kreme #2, Inc., Case No. 4:14-cv-01293 (S.D. Tex., May 9, 2014) alleges that Tastee Kreme does not pay its ice cream delivery drivers overtime. Tastee Kreme's delivery drivers, including the Plaintiffs, deliver pre-ordered ice cream shipments to retail vendors and collect the payment for same. Tastee Kreme #2, Inc. is a Texas corporation doing business in the state of Texas. The Plaintiffs are represented by: Trang Q. Tran, Esq. Andrew H. Iwata, Esq. TRAN LAW FIRM, L.L.P. 3050 Post Oak Blvd., Suite 1720 Houston, TX 77056 Telephone: (713) 223-8855 Facsimile: (713) 623-6399 E-mail: ttran@tranlawllp.com ahi@tranlawllp.com - and - Steven E. Petrou, Esq. LAW OFFICE OF STEVEN PETROU 11107 McCracken Lane, Suite A Cypress, TX 77429 Telephone: (281) 970-8555 Facsimile: (281) 970-8559 E-mail: petrou101@aol.com TELEXFREE INC: Gardy & Notis Files Class Action in Massachusetts ---------------------------------------------------------------- Gardy & Notis, LLP on May 14 disclosed that it has filed a class action lawsuit in the United States District Court for the District of Massachusetts, Case No. 14-CV-12058, on behalf of Samuel E. Griffith, and all similarly-situated persons and entities who purchased TelexFree "memberships" between January 1, 2012 and the present. The action is brought against the management and top promoters of TelexFree, Inc., TelexFree LLC, TelexFree Financial, Inc., and Telex Mobile Holdings, Inc. (collectively, "TelexFree"), and alleges that the "memberships" offered and sold to Plaintiff and the Class were unregistered securities, the selling of which violated Section 12(a)(1) of the Securities Act of 1933. The action alleges that TelexFree was an illegal pyramid scheme whereby Defendants offered and/or sold "memberships" that promised investment returns of over 200% per year and did not require investors to perform any actual work or sell any TelexFree product. On April 14, 2014, TelexFree filed for Chapter 11 bankruptcy, admitting that it cannot meet its obligations to its members and sought authority to reject all its current obligations to Class members. On April 15, 2014, the United States Securities and Exchange Commission filed an action in the District of Massachusetts against TelexFree and the same Defendants for securities fraud in violation of Section 10(b) of the Securities Exchange Act of 1934, fraud in the offer or sale of securities, in violation of Section 17(a) of the Securities Act of 1933 (the "Securities Act"), and for the offer or sale of unregistered securities, in violation of Section 5 of the Securities Act. On the same day, the Massachusetts Securities Division Enforcement Section filed an administrative complaint against TelexFree and Common Cents Communications, Inc., a predecessor of TelexFree, for securities fraud and for the sale of unregistered securities. Plaintiff seeks rescission and damages on behalf of the Class. The plaintiff is represented by Gardy & Notis, LLP, which has expertise in prosecuting investor class actions and extensive experience in actions involving financial fraud. If you purchased a TelexFree membership and you wish to serve as lead plaintiff, you may move the Court no later than 60 days from May 14, 2014 (no later than July 14, 2014). Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain a member of the proposed class. If you wish to discuss this action or have any questions concerning this notice, please contact: Orin Kurtz, Gardy & Notis, LLP 126 East 56th Street New York, New York 10022 Telephone: (212) 905-0509 E-mail: okurtz@gardylaw.com Web site: http://www.gardylaw.com TELLABS INC: Faruqi & Faruqi Files Class Action in Illinois ----------------------------------------------------------- Faruqi & Faruqi, LLP on May 14 disclosed that it has filed a class action lawsuit in the United States District Court for the Northern District of Illinois, case no. 1:13-cv-07945, on behalf of stockholders of Tellabs, Inc. who held (and continue to hold) Tellabs securities acquired on or before October 21, 2013, the day the Company agreed to be acquired, via a tender offer, by Marlin Equity Partners, and its affiliates Blackhawk Holding Vehicle, LLC and Blackhawk Merger Sub Inc. (collectively, "Marlin"). If you wish to obtain information concerning this action or view a copy of the complaint, you can do so by clicking here: http://www.faruqilaw.com/tellabs The complaint charges Tellabs, its board of directors, and Marlin with violations of the Securities Exchange Act of 1934 (the "Exchange Act") and breaches of fiduciary duties under state law. On October 21, 2013, Tellabs announced that it had entered into a definitive agreement whereby Marlin would acquire all of Tellabs's outstanding stock, pursuant to a tender offer, for $2.45 per share in cash (the "Tender Offer"). The Tender Offer closed at 11:59 p.m., New York City time on December 2, 2013 and was followed by a short-form merger, which paid the shareholders who had not previously tendered the $2.45 per share. The complaint alleges that defendants breached their fiduciary duties and/or aided and abetted such breaches in connection with the Tender Offer by conducting a flawed sales process designed to deliver the Company to Marlin and provide material benefits to Company insiders. Further, in an attempt to secure shareholder support for the Tender Offer, on November 1, 2013, Tellabs filed a materially false and misleading recommendation statement (the "Recommendation Statement") with the Securities and Exchange Commission. The Recommendation Statement, which recommended that Tellabs' stockholders tender their shares, omitted and/or misrepresented material information in contravention of Sections 14(e) and 20(a) of the Exchange Act. The omitted information was material to the impending decision of Tellabs shareholders on whether or not to tender their shares and/or whether to seek appraisal for their shares. Plaintiff is represented by Faruqi & Faruqi, LLP, a law firm with extensive experience in prosecuting class actions, and significant expertise in actions involving corporate fraud. Faruqi & Faruqi, LLP, was founded in 1995 and the firm maintains its principal office in New York City, with offices in Delaware, California, and Pennsylvania. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from May 14, 2014. Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. If you wish to discuss this action, or have any questions concerning this notice or your rights or interests, please contact: Juan E. Monteverde, Esq. FARUQI & FARUQI, LLP 369 Lexington Ave, 10th Floor New York, NY 10017 Telephone: (877) 247-4292 (212) 983-9330 E-mail: jmonteverde@faruqilaw.com TRANSWORLD SYSTEMS: Court Denies Motion to Dismiss FDCPA Suit ------------------------------------------------------------- Denise Harlan, individually and on behalf of all others similarly situated, has sued North Shore Agency, Inc., for alleged violation of the provision of the Fair Debt Collection Practices Act, 15 U.S.C. Sections 1692-1692p, that requires debt collectors to provide a notice of validation rights -- i.e., notice of the consumer's right to challenge the claimed debt, and how -- in certain debt collection communications. North Shore filed a Motion to Dismiss. In an amended memorandum dated April 14, 2014, a copy of which is available at http://is.gd/UR80tFfrom Leagle.com, District Judge Gene E.K. Pratter denied North Shore's Motion to Dismiss saying Ms. Harlan has moved for no relief. Given, additionally, the class action components of her Complaint, the Court can take no further action at this time, he said. North Shore shall answer the Complaint within the time required by the Federal Rules of Civil Procedure, Judge Pratter added. The case is DENISE HARLAN, individually and on behalf of all others similarly situated, Plaintiff, v. TRANSWORLD SYSTEMS, INC., d/b/a, NORTH SHORE AGENCY, INC., Defendant, CIVIL ACTION NO. 13- 5882, (E.D. Penn.). DENISE HARLAN, Plaintiff, represented by: ANDREW M. MILZ, Esq. CARY L. FLITTER, Esq. FLITTER LORENZ, P.C. 450 N Narberth Ave. Narberth, PA 19072 Telephone: (610) 266-7863 TRANSWORLD SYSTEMS, INC., Defendant, represented by AARON R. EASLEY -- aeasley@sessions-law.biz -- SESSIONS FISHMAN NATHAN & ISRAEL LLC. UDREN LAW: Faces Suit Over Violations of Fair Debt Collection Act ----------------------------------------------------------------- Claudette Pollock, on behalf of herself and others similarly situated v. Udren Law Offices, P.C., Case No. 1:14-cv-21711-PAS (S.D. Fla., May 9, 2014) alleges violations of the Fair Debt Collection Practices Act. The Plaintiff is represented by: Yechezkel Rodal, Esq. LOAN LAWYERS, LLC 377 N. State Rd. 7, Suite 202 Plantation, FL 33317 Telephone: (954) 523-4357 E-mail: chezky@floridaloanlawyers.com The Defendant is represented by: Darla Lynn Grondin, Esq. UDREN LAW OFFICES, P.C. 2101 West Commercial Blvd., Suite 5000 Fort Lauderdale, FL 33309 Telephone: (954) 378-1768 E-mail: dgrondin@udren.com ULTIMATE SOFTWARE: Sued by Class of UPMC Workers Over Data Breach ----------------------------------------------------------------- Alice Patrick, individually and on behalf of all others similarly situated v. The Ultimate Software Group, Inc., and UPMC d/b/a The University of Pittsburgh Medical Center, UPMC McKeesport, Case No. 2:14-cv-00602-MBC (W.D. Pa., May 9, 2014) is brought on behalf of all UPMC workers, whose personal and financial information was allegedly stolen from the computer systems of UPMC or Ultimate, the vendor to which UPMC outsourced its human resources operations during the Class Period. Headquartered in Weston, Florida, The Ultimate Software Group, Inc. is a provider of cloud-based human capital management solutions. Ultimate Software's "UltiPro" solution is a cloud- based platform that delivers human capital management to organizations across all industries. UltiPro provides Ultimate's customers with a system of record for human resources, payroll, and talent management. UPMC, doing business as the University of Pittsburgh Medical Center, is an integrated global health enterprise, and one of the leading nonprofit health systems in the United States. UPMC is headquartered in Pittsburgh, Pennsylvania. UPMC is the parent corporation of approximately 35 subsidiaries, including UPMC McKeesport and various other subsidiary hospital entities. UPMC outsources its payroll and human resources operations to Ultimate. The Plaintiff is represented by: Michael L. Kraemer, Esq. David M. Manes, Esq. Elizabeth Pollock-Avery, Esq. KRAEMER, MANES & ASSOCIATES LLC US Steel Tower 600 Grant Street, Suite 660 Pittsburgh, PA 15219 Telephone: (412) 626-5626 Facsimile: (412) 637-0232 E-mail: m@lawkm.com david@lawkm.com elizabeth@lawkm.com - and - Gary F. Lynch, Esq. Edwin J. Kilpela, Jr. , Esq. Benjamin J. Sweet, Esq. Sunshine R. Fellows, Esq. Jamisen A. Etzel, Esq. CARLSON LYNCH LTD PNC Park 115 Federal Street, Suite 210 Pittsburgh, PA 15212 Telephone: (412) 322-9243 Facsimile: (412) 231-0246 E-mail: glynch@carlsonlynch.com ekilpela@carlsonlynch.com bsweet@carlsonlynch.com sfellows@carlsonlynch.com jetzel@carlsonlynch.com UMPQUA HOLDINGS: Uncertain on Effect of Antitrust Suit Accord ------------------------------------------------------------- The effect of a proposed settlement to resolve In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation on the value of Umpqua Bank's Class B common stock is unknown at this time, according to Umpqua Holdings Corporation's May 7, 2014, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2014. Umpqua Bank owns 468,659 shares of Class B common stock of Visa Inc. which are convertible into Class A common stock at a conversion ratio of 0.4206 per Class A share. As of March 31, 2014, the value of the Class A shares was $215.86 per share. Utilizing the conversion ratio, the value of unredeemed Class A equivalent shares owned by the Bank was $42.5 million as of March 31, 2014, and has not been reflected in the accompanying financial statements. The shares of Visa Inc. Class B common stock are restricted and may not be transferred. Visa member banks are required to fund an escrow account to cover settlements, resolution of pending litigation and related claims. If the funds in the escrow account are insufficient to settle all the covered litigation, Visa Inc. may sell additional Class A shares and use the proceeds to settle litigation, thereby reducing the conversion ratio. If funds remain in the escrow account after all litigation is settled, the Class B conversion ratio will be increased to reflect that surplus. On July 13, 2012, Visa Inc. announced that it had entered into a memorandum of understanding obligating it to enter into a settlement agreement to resolve the multi-district interchange litigation brought by the class plaintiffs in the matter styled In re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation, Case No. 5-MD-1720 (JG) (JO) pending in the U.S. District Court for the Eastern District of New York. The claims originally were brought by a class of U.S. retailers in 2005. The settlement was approved by the Court on December 13, 2013. However, the decision of the Court which granted approval to settlement is currently being appealed. Visa's share of the settlement to be paid is estimated to be approximately $4.4 billion. However, certain trade associations and merchants are actively opposing the proposed settlement and it is unknown when or if the proposed settlement will be approved. A fairness hearing was held on September 12, 2013 to determine if the settlement will be finally approved. It is not known when the Court will issue an order related to the motion for final approval of the settlement. The effect of this proposed settlement on the value of the Bank's Class B common stock is unknown at this time. UMPQUA HOLDINGS: Bank Reaches Settlement in "Hawthorne" Lawsuit --------------------------------------------------------------- Umpqua Bank reached a settlement in a suit filed in the U.S. District Court for the Northern District of California by Amber Hawthorne, according to Umpqua Holdings Corporation's May 7, 2014, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2014. In its Form 10-K for the period ending December 31, 2011, the company initially reported on a class action lawsuit filed in the U.S. District Court for the Northern District of California against Umpqua Bank by Amber Hawthorne relating to overdraft fees and the posting order of point of sale and ACH items. In March 2014, the parties reached an agreement in principle to settle the case on a class basis, subject to execution of a comprehensive written settlement agreement. Once executed, the settlement agreement will be presented to the court for preliminary approval. Settlement of this matter on the agreed terms will have no material adverse effect on the Company's consolidated financial position, results of operations or cash flows. UMPQUA HOLDINGS: Has MoU to Settle Suit Over Sterling Merger ------------------------------------------------------------ Umpqua Holdings Corporation executed a Memorandum of Understanding that contains the essential terms of a settlement and dismissal of the consolidated cases over the Sterling Financial Corporation merger, according to Umpqua's May 7, 2014, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2014. In the company's Form 10-K for the period ending December 31, 2013, the company initially reported on two separate class action lawsuits filed in Spokane County, Washington, Superior Court against the Company and other defendants arising from the proposed Sterling merger. The court consolidated the cases before a single judge for further administration. The consolidated litigation generally alleges that directors of Sterling breached their duties to the Sterling shareholders by approving the Merger, failing to take steps to maximize shareholder value, engaging in a flawed sales process, and agreeing to deal protection provisions in the Merger agreement that are alleged to unduly favor the Company. The Company is alleged to have aided and abetted the alleged breaches of duty. The consolidated litigation also alleges that the disclosures approved by the Sterling board in connection with the Merger and the vote thereon are false and misleading in various respects. As relief, the complaints sought to enjoin the Merger and seek, among other things, damages in an unspecified amount and payment of plaintiffs' attorneys' fees and costs. The defendants believe that the lawsuits are without merit. On January 16, 2014, the parties executed a Memorandum of Understanding (the "MOU") that contains the essential terms of a settlement and dismissal of the consolidated cases. The MOU does not call for the payment of any money damages, but required the defendants to make certain additional disclosures relating to the Merger and to pay the attorney fees, costs, and expenses of plaintiffs' counsel incurred in connection with the action. The agreed additional disclosures were made and included in the joint proxy statement/prospectus filed January 22, 2014. The MOU further provides that if the parties cannot agree on the amount of fees, costs, and expenses to be paid by the defendants to plaintiffs' counsel, such amount shall be decided by the court. There has been no significant activity in the cases since the MOU was executed. UMPQUA HOLDINGS: Sterling Moves to Dismiss Wash. Securities Suit ---------------------------------------------------------------- Sterling Financial Corporation moved to dismiss an amended consolidated securities complaint pending in the United States District Court for the Eastern District of Washington, according to Umpqua Holdings Corporation's May 7, 2014, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2014. On December 11, 2009, a putative securities class action complaint, captioned City of Roseville Employees' Retirement System v. Sterling Financial Corp., et al., No. CV 09-00368-EFS, was filed in the United States District Court for the Eastern District of Washington against Sterling and certain of its current and former officers. The Court appointed City of Roseville Employees' Retirement System as lead plaintiff on March 9, 2010. On June 18, 2010, lead plaintiff filed a consolidated complaint alleging that the defendants violated sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and SEC Rule 10b-5 by making false and misleading statements concerning the company's business and financial results. The consolidated complaint purported to be brought on behalf of a class of persons who purchased or otherwise acquired Sterling's stock during the period from July 23, 2008 to October 15, 2009. The consolidated complaint alleged that defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 by failing to disclose the extent of Sterling's delinquent commercial real estate, construction and land development loans, properly record losses for impaired loans, and properly reserve for loan losses, thereby causing Sterling's stock price to be artificially inflated during the purported class period. Plaintiffs sought unspecified damages and attorneys' fees and costs. On August 30, 2010, Sterling moved to dismiss the Complaint. On March 2, 2011, after complete briefing, the court held a hearing on the motion to dismiss. On August 5, 2013, the court granted the motion to dismiss without prejudice. On October 11, 2013, the lead plaintiff filed an amended consolidated complaint. The amended consolidated complaint names the same defendants, specifies the same class period, alleges the same violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and seeks the same relief. The amended consolidated complaint contains similar allegations of improper disclosure regarding Sterling's lending practices, status of loans and reserving and accounting for loans. On January 24, 2014, Sterling moved to dismiss the amended consolidated complaint. UNITED HEALTHCARE: Removed "Roberts" Suit to C.D. California ------------------------------------------------------------ The class action lawsuit titled Edward J. Roberts v. United Healthcare Services Inc., et al., Case No. BC540910, was removed from the Superior Court of California for the County of Los Angeles to the U.S. District Court for the Central District of California (Los Angeles). The District Court Clerk assigned Case No. 2:14-cv-03606-GW-MAN to the proceeding. The Plaintiff is represented by: Brian S. Kabateck, Esq. Drew R. Ferrandini, Esq. Joshua H. Haffner, Esq. KABATECK BROWN KELLNER LLP 644 South Figueroa Street Los Angeles, CA 90017 Telephone: (213) 217-5000 Facsimile: (213) 217-5010 E-mail: bsk@kbklawyers.com df@kbklawyers.com jhh@kbklawyers.com The Defendants are represented by: Michael M. Maddigan, Esq. Poopak Nourafchan, Esq. HOGAN LOVELLS US LLP 1999 Avenue of the Stars, Suite 1400 Los Angeles, CA 90067 Telephone: (310) 785-4727 Facsimile: (310) 785-4601 E-mail: michael.maddigan@hoganlovells.com Poopak.nourafchan@hoganlovells.com WELLS FARGO: Court Stays "Heinrichs" Class Action ------------------------------------------------- District Judge William Alsup has stayed the case captioned MARK HEINRICHS, individually and on behalf of all others similarly situated, Plaintiff, v. WELLS FARGO BANK, N.A., Defendant, NO. C 13-05434 WHA, (N.D. Cal.). The putative class action was brought under the Telephone Consumer Protection Act. Wells Fargo moved to stay the action pending resolution of two dispositive petitions to the Federal Communications Commission. Both petitions -- one seeking declaratory ruling and the other formal rulemaking -- essentially ask the FCC to shield robocallers from liability if they intend to call persons who gave prior express consent to receive automated calls. In an order dated April 15, 2014, a copy of which is available at http://is.gd/temm0xfrom Leagle.com, Judge Alsup granted Wells Fargo's stay motion saying, "this action will be stayed until the sooner of six months or such closer time as the FCC decides to act or rule in such a way as to eviscerate the pending action." Judge Alsup further directed counsel to file a joint statement advising the Court of the status of the FCC petitions by noon on October 15, 2014. Mark Heinrichs, Plaintiff, represented by Seyed Abbas Kazerounian -- ak@kazlg.com -- Kazerouni Law Group, APC, Daniel M. Hutchinson -- dhutchinson@lchb.com -- Lieff Cabraser Heimann & Bernstein, LLP, Jeremy Mathew Glapion, Lieff Cabraser Heimann Bernstein LLP, Jonathan David Selbin -- jselbin@lchb.com -- Lieff Cabraser Heimann & Bernstein LLP, Joshua B. Swigart -- josh@westcoastlitigation.com -- Hyde & Swigart, Matthew Michael Loker, Kazerouri Law Group, APC, Matthew Ryan Wilson -- mwilson@meyerwilson.com -- Meyer Wilson Co., LPA, Michael J. Boyle -- mboyle@meyerwilson.com -- Meyer Wilson, LPA & Nicole Diane Sugnet -- nsugnet@lchb.com -- Lieff Cabraser Heimann & Bernstein, LLP. Wells Fargo Bank N.A., Defendant, represented by Eric John Troutman -- ejt@severson.com -- Severson & Werson, John B. Sullivan -- jbs@severson.com -- Severson & Werson & Mark Douglas Lonergan -- mdl@severson.com -- Severson & Werson. * Automakers More Sensitive to Safety Issues After GM Recalls ------------------------------------------------------------- Eric Beech, writing for Reuters, reports that Fiat Chrysler Automobiles Chief Executive Sergio Marchionne said on May 21 that the fallout from General Motors' delay in recalling millions of cars for faulty ignition switches has prompted automakers to be more sensitive to safety issues. "Given the nature of the events that we've seen in the last three or four months, I think it is more than likely automotive houses will now shift their attitude and be even more prudent than they would have been under normal circumstances. And probably beyond what is required," Mr. Marchionne told reporters. GM is under investigation by the Justice Department, Congress, the Securities and Exchange Commission and several states for waiting 10 years after first learning of the defective ignition switches to issue the recall. At least 13 deaths have been linked to the faulty part in 2.6 million Chevrolet Cobalts, Saturn Ions and other cars, which were recalled beginning in February. GM has issued a total of 29 recalls this year involving a record 11.8 million vehicles in the United States. "I just find the number of recalls that have come out to just be an astounding number, just in sheer size," Mr. Marchionne said of the industry after an event at Brookings Institution. "It can't be all of a sudden we woke up to these issues. There must be a change in attitude inside the (companies)," he said. Mr. Marchionne said if the frequency of recalls conducted by GM becomes the norm in the industry, the costs will be shifted to consumers in the form of higher-priced cars. The National Highway Traffic Safety Administration has fined GM a record $35 million for its delayed response to the ignition-switch recall. Mr. Marchionne said the NHTSA fine would not act as a deterrent to future safety problems. "The issue is a reputational issue associated with the brand," he said. "It has to do with what we do as professionals." Chrysler has recalled 1.7 million vehicles in the first three months of this year. It recalled 4.1 million in 2013. The automaker has hired outside consultants who have begun a review of the company's recall process, Mr. Marchionne said. "We going to look to see whether we're doing all the right things. To the best of my knowledge, I think the vehicle recall committee that is in place and all the work that's done by the technical staff is world class. If we can improve it, we will," he said. * Number of Securities Class Action Rises, Lockton's Report Says ---------------------------------------------------------------- Kyla Asbury, writing for Legal Newsline, reports that the world's largest privately owned independent insurance brokerage firm has released a report that assesses the current state of securities litigation and looks toward the future of lawsuit trends. Lockton's report, titled "The Next Big Thing: Predicting the Changing Securities Litigation Landscape," points to sources of future litigation and advises companies on how to protect themselves. The report was written by Vice President Mark Weintraub and Senior Vice President Rodger Laurite. As the number of public companies has decreased since 1997, the number of securities class actions has risen, according to the report. In 1997, there were approximately 8,900 public companies. In 2013, there were approximately 5,000, according to the report. The number of securities class actions remained robust "due to the emergence of certain novel litigation trends created by the credit crisis, Chinesee mergers and merger objection lawsuits," according to the report. "Today, however, credit crisis-related lawsuits are precluded by statute of limitations, Chinese reverse merger suits have largely run their course and merger objection suits . . . are depended on M&A activity, which was down in 2013," the report states. In short, securities plaintiffs firms that relied on litigation trends to supplement their caseloads over the last seven years will be facing unprecedented competition for cases at a time when there are fewer public companies to target, according to the report. The U.S. Supreme Court is expected to issue a ruling in Halliburton Co. v. Erica P. John Fund Inc. this summer, which could alter the course of future securities class actions. In Halliburton, the court will revisit a ruling from 1988 known as Basic Inc. v. Levinson, in which the court established the "fraud on the market" presumption. Because of the fraud on the market presumption, reliance on alleged misleading disclosures is presumed, and a class may be certified without having to prove that each and every stockholder relied on a specific disclosure. If Halliburton overturns Basic, each individual shareholder- plaintiff must show he or she relied on the allegedly misleading disclosure. As data increasingly becomes a company's most valuable asset, Messrs. Weintraub and Laurite note opportunities surrounding cyber risk. They point to the infamous Target breach as an example, as shareholders have filed two suits against the company's directors and officers, claiming breach of fiduciary duty and waste of corporate assets. "The lawsuit dynamics surrounding the Target cyber breach can easily develop into a new litigation trend as the foregoing pattern can be replicated whenever a company suffers a significant cyber event," Mr. Weintraub said. The specter of cyber risk is relatively new, but it is nevertheless casting a growing shadow over board rooms and could be the mother lode for future securities litigation, the report states. In the Target data breach lawsuits that have already been filed by shareholders, the plaintiffs allege that "company leaders knew the cyber risks but failed to protect customer data, and seek to hold the board accountable for cyber breach costs and any damages awarded in the related consumer class action lawsuits that have been filed." "The lawsuit dynamics surrounding the Target cyber breach can easily develop into a new litigation trend as the foregoing pattern can be replicated whenever a company suffers a significant cyber event," the report states. "Moreover, data is rapidly becoming a company's most valuable asset and, with the increase of mobile apps, digital processes are replacing more and more manual transactions." The report encourages companies to consistently review their policies and procedures surrounding data management and storage and follow the SEC guidelines for cyber-related disclosures. While most directors and officers liability policies cover claims against individuals, they only cover an entity for limited securities-related claims. To be fully protected, a company should ensure their policy includes a broad definition of "securities claim" and does not limit coverage for follow-on civil litigation, Lockton says. Lockton encouraged companies to pay attention to relevant, upcoming U.S. Supreme Court case outcomes; stay aware of emerging litigation trends based on SEC regulatory changes; and be sure directors and officers policy wording is broad. ********* 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. Ma. Cristina Canson, Noemi Irene A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 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 * * *