/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/141014.mbx C L A S S A C T I O N R E P O R T E R Tuesday, October 14, 2014, Vol. 16, No. 204 Headlines ADAMA AGRICULTURAL: Moshav Nir Residents Pursue Nuisance Lawsuit AMBIT ENERGY: S.D.N.Y. Has No Jurisdiction on "Simmons" Suit APPLE INC: Settles Two Suits in Cal. Over ITunes Double-Billing ARAMARK SERVICES: Removes "Medina" Bias Suit to D. Connecticut BANK OF AMERICA: Opt Out Cases in Interchange Fee Suit Remain BIO-MEDICAL APPLICATIONS: Removes "Rodriguez" Suit to S.D. Cal. BP PLC: Accuses Federal Judge of Blocking Review of Payments BRISTOL-MYERS SQUIBB: Judge Remands 57 Plavix Cases to California CHARDON POLICE: Judge Oliver Dismisses "Andrews" Lawsuit CHARLES I. TURNER: Accused of Violating Fair Debt Collection Act CHINA GREEN: Nevada Court Approves Securities Suit Settlement CHRYSLER GROUP: Suit Accuses Dodge Rams of Having Death Wobble CITIGROUP INC: Bid to Dismiss Leber Suit on Timeliness Basis Nixed COMCAST CORP: Plaintiffs File Motion for Spoliation Sanctions COMMAND TECHNOLOGIES: Suit Seeks to Recover Wages and Damages COOPER TIRE: "Bui" Suit on Apollo Merger Transferred to Del. Ct. CORRECTIONS CORP: Hawaiian Inmates Obtain Class Certification CROSSMARK INC: "Smith" Suit Moved From C.D. to N.D. California DOLLAR GENERAL: Georgia Class Suit Seeks to Collect Unpaid Wages DOW CHEMICAL: 10th Cir. Upholds $1-Bil. Polyurethane Class Action EL AHORRO SUPERMARKET: Fails to Pay Overtime Wages, Class Claims ESPN INC: Student-Athletes Sue in Tennessee Over Use of Likeness EXTREME NETWORKS: Seeks Indemnification in Suit v. Enterasys FANNIE MAE & FREDDIE MAC: FHFA Wins Dismissal of Perry et al Case FEDEX CORP: Still Faces Suits for Mandatory "Off the Clock" Work FEDEX CORP: Provides Updates on Independent Contractor Lawsuits FEDEX GROUND: Kansas High Court Clarifies Definition of Drivers GALAXY BOOKS: Fails to Pay Minimum & Overtime Wages, Laborer Says GARLOCK SEALING: Wants to Unseal Asbestos Plaintiffs' Files GHIRARDELLI CHOCOLATE: Got Prelim. OK of $5.25MM Class Settlement GLAXOSMITHKLINE: Can Transfer Paxil Birth-Defects Case to Ohio GOLD COAST CAR: Fails to Pay Overtime Wages Under FLSA, Suit Says HITACHI-LG DATA: Court Won't Certify Classes in ODD Antitrust MDL HOME DEPOT: Removes "Rogers" Suit to California District Court IEC ELECTRONICS: New York Court Dismisses Consolidated Stock Suit IFG MEDICAL: Sued for Violating Communications Act in New Jersey INTEGRATED TECH: Fails to Pay Back Wages Under FLSA, Suit Claims INTRALINKS: Dist. Court Certifies Class in "Wallace" Stock Suit IXIA: Individuals Seek to Dismiss Securities Suit in California JACKSONVILLE, FL: "Monaco" Case May Not Proceed as Class Action LA-Z-BOY INC: Accused of Sending Unsolicited Facsimiles in N.C. LORDEX INC: Sued for Sending Unsolicited Fax Messages LOS ANGELES CLIPPERS: Attorneys Get $287K in Fees in TCPA Suit MARICOPA, AZ: Court Tosses Bid to Terminate 3rd Amended Judgment MED-1 SOLUTIONS: Violates Fair Debt Collection Act, Suit Claims MEDICAL ACTION: Shareholders Seek Prelim. Injunction v. Merger MEDTRONIC INC: Removes "Greene" Suit to Tennessee District Court MEDTRONIC INC: Removes "Rozoff" Suit to Tennessee District Court MOFFETT'S CHICKEN: Sued in Cal. Over Disabilities Act Violations OMNIAMERICAN BANCORP: Inks MoU to Settle "McDougal" Suit in Md. NETSOL TECHNOLOGIES: Faces Rand-Heart Securities Suit in Cal. PDC ENERGY: Agrees to Settle Suit Over 2010 & 2011 Acquisitions PHIBRO ANIMAL: Still Faces Injury Lawsuit by Israeli Residents RIEXINGER & ASSOCIATES: Sued in M.D. Florida for Violating FDCPA ROYAL DENTAL: Faces Suit Alleging Communications Act Violations SAC ACQUISITION: Accused of Discriminating Against Ex-Design Lead SAMSUNG SDI: Court Refuses to Dismiss Battery Price-Fixing Suit SANTANDER CONSUMER: Faces Class Suit Over Initial Public Offering SAXON MORTGAGE: "Giordano" Class Suit Survives Dismissal Motion SPIRIT REALTY: Md. Court Approves Settlement in Merger Suit SYNGENTA CORP: Faces Class Suits for Ruining Corn Sales to China TELEXFREE LLC: "Ferrari" Suit Moved to Massachusetts District Ct. TEMPLETON RYE: Faces Third Class Action Over Whiskey Marketing TEXAS HEALTH: May Face Suits Over Ebola Exposure Risk THIRD FEDERAL: Faces "Berry" Class Suit Alleging RICO Violations THOMAS JUDE HENRY: Sued by Paralegals Over Unpaid Overtime Wages TIBCO SOFTWARE: Being Sold for Too Little to Balboa, Suit Claims TIBCO SOFTWARE: Investor Seek to Stop Going-Private Transaction TOYS R US: Removes "Rojas" Suit to Southern District of Florida US BUREAU OF PRISONS: Faces "Cooper" Class Suit in M.D. Florida WELLS FARGO: Removes "Eggers" Suit to Southern District of Iowa YAMAHA MOTOR: Court Narrows Claims in "Pitre" Class Action YURI SHEARER: Dist. Court Tosses Motion to Dismiss GGNSC Suit * "Proposition 46" to Lift Medical Malpractice Damages Ceiling * Three Orange County Schools Closed Over Asbestos Risk ********* ADAMA AGRICULTURAL: Moshav Nir Residents Pursue Nuisance Lawsuit ---------------------------------------------------------------- The plaintiffs alleging damages caused due to odor and noise nuisances in Moshav Nir Galim filed an appeal against the denial of certification to the case against Adama Agricultural Solutions Ltd., according to the company's Sept. 17, 2014, Amendment No. 1 to Form F-1 filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2014. On July 24, 2011, a financial claim and a request for approval of the claim as a class action were received in the offices of Agan, which were filed by two residents of Moshav Nir Galim and a resident of Ashdod alleging damages caused due to odor and noise nuisances. To the extent the claim will be approved as a class action, the plaintiffs assess that the amount claimed from Agan is about NIS 642 million ($185 million). On December 8, 2013, a decision was rendered by the District Court in Be'er Sheva rejecting the request for certification of the claim as a class action and charging the plaintiffs for expenses. Subsequent to the date of the statement of financial position, on February 10, 2014, the plaintiffs filed an appeal of the said court decision to the Supreme Court. In the Company's estimation, based on its legal advisors, the chances the appeal will be accepted are less than the chances it will be rejected. AMBIT ENERGY: S.D.N.Y. Has No Jurisdiction on "Simmons" Suit ------------------------------------------------------------ Upon review, District Judge Jesse M. Furman for the Southern District of New York concludes that the court lacks subject-matter jurisdiction over the case TAURSHIA SIMMONS et al., Plaintiffs, v. AMBIT ENERGY HOLDINGS, LLC et al., Defendants, Civil No. 13-CV- 6240 (JMF) (S.D.N.Y.). Accordingly, the judge granted the Defendants' motion to dismiss, without prejudice to Plaintiffs' refiling their suit in an appropriate state court. The putative class action was brought by Plaintiffs Taurshia Simmons and Navid Kalatizadeh against Defendants Jere W. Thompson and Chris Chambless, as well as Ambit Energy Holdings, LLC; Ambit Texas, LLC; Ambit Marketing, LLC; and Ambit New York LLC to recover damages for alleged violations of New York consumer protection laws and for unjust enrichment. A copy of Judge Furman's Opinion and Order dated Sept. 30, 2014 is available at http://is.gd/WRc8MJfrom Leagle.com. Defendant Ambit Marketing, LLC, is represented by Michael Warren Stockham, Esq. -- Michael.Stockham@tklaw.com -- of Thompson & Knight LLP. APPLE INC: Settles Two Suits in Cal. Over ITunes Double-Billing --------------------------------------------------------------- Apple will not have to face claims that it charged more than once for multiple iTunes downloads after the plaintiffs settled with the tech giant on October 7, 2014, in federal court, according to Chris Marshall at Courthouse News Service Robert Herskowitz and Phoebe Juel hoped to represent a class of customers who made repeated downloads of the same song from iTunes, only to discover that Apple charged them every time. Juel said Apple charged her when she downloaded a song from Apple that she had already downloaded but could not locate on her computer. Herskowitz alleged he was charged more than once for the same product. U.S. District Judge Lucy Koh found earlier this year that particular questions about each plaintiff in each case foreclose class certification. The judge dismissed the consolidated cases October 7 without leave to amend pursuant to a signed stipulation from both sides. The plaintiffs waived their right to appeal Koh's recent order denying class certification and agreed that both sides would bear their own attorney fees and costs, according to the stipulation. Apple is represented by Penelope Preovolos of Morrison & Foerster, who told Courthouse News, "You know you have to contact Apple's public relations department," which did not return a request for comment. The Plaintiffs are represented by: Joseph J. Tabacco, Jr., Esq. Christopher T. Heffelfinger, Esq. Anthony D. Phillips, Esq. BERMAN DEVALERIO One California Street, Suite 900 San Francisco, CA 94111 Telephone: (415) 433-3200 Facsimile: (415) 433-6382 E-mail: jtabacco@bermandevalerio.com cheffelfinger@bermandevalerio.com aphillips@bermandevalerio.com The Defendant is represented by: Penelope A. Preovolos, Esq. Sylvia Rivera, Esq. Suzanna P. Brickman, Esq. MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 94105-2482 Telephone: (415) 268-7000 Facsimile: (415) 268-7522 E-mail: PPreovolos@mofo.com SRivera@mofo.com SBrickman@mofo.com The cases are Robert Herskowitz, et al. v. Apple Inc., Case No. 12-CV-02131-LHK, and Phoebe Juel, et al. v. Apple Inc., Case No. 12-CV-03124-LHK, both in the U.S. District Court for the Northern District of California, San Jose Division. ARAMARK SERVICES: Removes "Medina" Bias Suit to D. Connecticut -------------------------------------------------------------- The lawsuit captioned Medina v. Aramark Services, Inc., Case No. HHD-CV-14-6053864-S, was removed from the Connecticut Superior Court, Judicial District of Hartford at Hartford, to the United States District Court for the District of Connecticut. The District Court Clerk assigned Case No. 3:14-cv-01474-RNC to the proceeding. The action seeks redress from alleged discrimination and wrongful termination based on the Plaintiff's physical disability, race and national origin. Aramark Services, Inc., is a foreign Delaware corporation with a principle place of business located in Philadelphia, Pennsylvania. The Company provides facilities management and employees custodial employees at Trinity College, in Hartford, Connecticut. The Plaintiff is represented by: Amanda DeMatteis, Esq. CICCHIELLO & CICCHIELLO, LLP 364 Franklin Avenue Hartford, CT 06114 Telephone: (860) 296-3457 Facsimile: (860) 296-0676 E-mail: adematteis@cicchielloesq.com The Defendant is represented by: Jonathan B. Orleans, Esq. Rachel L. Ginsburg, Esq. PULLMAN & COMLEY, LLC 850 Main Street P. O. Box 7006 Bridgeport, CT 06604 Telephone: (203) 330-2000 Facsimile: (203) 576-8888 E-mail: jborleans@pullcom.com rginsburg@pullcom.corn - and - Anna Kolontyrsky, Esq. MORGAN, LEWIS & BOCKIUS LLP 101 Park Avenue New York, NY 10178-0060 Telephone: (212) 309-6654 Facsimile: (212) 309-6001 E-mail: akolontyrsky@morganlewis.com BANK OF AMERICA: Opt Out Cases in Interchange Fee Suit Remain ------------------------------------------------------------- The U.S. District Court for the Eastern District of New York denied defendants' motion to dismiss the opt out complaints in the settlement of In Re Payment Card Interchange Fee and Merchant Discount Anti-Trust Litigation, including the complaint in the consolidated proceedings naming Bank of America Corporation as a defendant, according to BA Credit Card Funding, LLC's Sept. 19, 2014, Form 10-Q filing with the U.S. Securities and Exchange Commission for the year ended June 30, 2014. In 2005, a group of merchants filed a series of putative class actions and individual actions directed at interchange fees associated with Visa and MasterCard payment card transactions. These actions, which were consolidated in the U.S. District Court for the Eastern District of New York under the caption In Re Payment Card Interchange Fee and Merchant Discount Anti-Trust Litigation, named Visa, MasterCard and several banks and bank holding companies, including Bank of America Corporation, as defendants. Plaintiffs alleged that defendants conspired to fix the level of default interchange rates, which represent the fee an issuing bank charges an acquiring bank on every transaction. Plaintiffs also challenged as unreasonable restraints of trade under Section 1 of the Sherman Act certain rules of Visa and MasterCard related to merchant acceptance of payment cards at the point of sale. Plaintiffs sought unspecified damages and injunctive relief based on their assertion that interchange would be lower or eliminated absent the alleged conduct. On October 19, 2012, defendants, including Bank of America Corporation, entered an agreement to settle the class plaintiffs' claims. The defendants also separately agreed to resolve the claims brought by a group of individual retailers that opted out of the class to pursue independent litigation. The settlement agreements provide for, among other things, (i) payments by defendants to the class and individual plaintiffs totaling approximately $6.6 billion; (ii) distribution to class merchants of an amount equal to 10 basis points of default interchange across all Visa and MasterCard credit card transactions for a period of eight consecutive months, which period began on July 29, 2013, which otherwise would have been paid to Visa and MasterCard issuers, including Bank of America Corporation, and which effectively reduces credit interchange for that period of time; and (iii) modifications to certain Visa and MasterCard rules regarding merchant point of sale practices. The court granted final approval of the class settlement agreement on December 13, 2013. Several class members have appealed to the U.S. Court of Appeals for the Second Circuit. In addition, a number of the class members opted out of the settlement of their past damages claims. The cash portion of the settlement has been adjusted downward as a result of these opt outs, subject to certain conditions. A number of actions have been filed by merchant class members who opted out of the settlement. Bank of America Corporation has been named as a defendant in some of these opt out suits and, as a result of various sharing agreements from the main Interchange litigation, remains liable for any settlement or judgment in opt out suits where it is not named as a defendant. All but one of the opt out suits filed to date have been consolidated in the U.S. District Court for the Eastern District of New York. On July 18, 2014, the court denied defendants' motion to dismiss the opt out complaints, including the complaint in the consolidated proceedings naming Bank of America Corporation as a defendant. BIO-MEDICAL APPLICATIONS: Removes "Rodriguez" Suit to S.D. Cal. --------------------------------------------------------------- The class action lawsuit captioned Rodriguez v. Bio-Medical Applications of Fresno, Inc., et al., Case No. ECU08346, was removed from the Superior Court of the State of California for the County of Imperial, to the U.S. District Court for the Southern District of California (San Diego). The District Court Clerk assigned Case No. 3:14-cv-02381-H-NLS to the proceeding. The lawsuit arises from labor-related issues. The Plaintiff is represented by: Sepideh Ardestani, Esq. GAINES & GAINES, APLC 21550 Oxnard Street, Suite 980 Woodland Hills, CA 91367 Telephone: (818) 703-8985 Facsimile: (818) 703-8984 E-mail: sepideh@gaineslawfirm.com The Defendants are represented by: Bren Kenneth Thomas, Esq. LITTLER MENDELSON 5200 North Palm Avenue, Suite 302 Fresno, CA 93704-2225 Telephone: (559) 244-7500 Facsimile: (559) 244-7525 E-mail: bkthomas@littler.com BP PLC: Accuses Federal Judge of Blocking Review of Payments ------------------------------------------------------------ Sabrina Canfield at Courthouse News Service reports that attorneys for BP returned to a 5th Circuit hearing room on October 6, 2014, striving to claw back what the energy company claims have been hundreds of thousands of dollars in oil spill overpayments. Among the issues, from BP's perspective, are alleged overpayments accepted by non-profit organizations that suffered no actual harm from the oil spill and yet have received hundreds of thousands of dollars in oil spill money simply because of the way the settlement agreement was crafted. Thomas Hungar, a partner with the Washington D.C. firm of Gibson, Dunn & Crutcher LLP, told the three-judge appellate panel the district Court that approved the settlement is making it impossible for BP to seek review of payments. Hungar said BP has been barred from putting certain documents on the district court docket and said BP's documents exist in a "shadow docket" state, which keeps them off the public record and, without record, makes it impossible to seek appeal. In response, attorneys for several plaintiffs argued that it is up to BP to create its own docket. U.S. District Judge Carl Barbier, who is overseeing the consolidated oil spill litigation, has consistently ruled that because BP's own attorneys helped to create the 2011 settlement agreement, and because BP had ample opportunity to verify its various elements and make changes before it was signed, it is now too late for the company to dispute the agreement's payment terms or methods. Last month Barbier ruled against letting BP claw back certain oil spill overpayments. That ruling did not affect the overpayments BP argued over on October 6. In regard to Barbier's ruling, Hungar said that in the instances the judge allowed to be considered, BP was able to show it "undisputedly overpaid." Hungar said that one of class council's arguments was the oil company should have to pay because it failed to appeal the settlement or the amounts as they were initially approved. Hungar said BP could not appeal the payments because it has been denied appeals of that sort. U.S. Circuit Judge Edward Prado, "asking for selfish reasons," asked how many overpayments BP might appeal, assuming it could. Hungar said of the 200,000 claims that have been processed to date, BP has only appealed around 5,000, and of those, only a few have wound up before the 5th Circuit. Judge Prado said he remembered there being a release clause, or "something of the sort," attached to the settlement agreement, which prevents BP from appealing payments. Hungar said BP should nevertheless be entitled to appeal and indicated that only the claimants are "bound" by the terms of the settlement agreement. Arguing on behalf of plaintiffs, Samuel Issacharoff, a professor at New York University School of Law, told the judges that no 5th Circuit decision has ever addressed anything "so trivial" as BP's nitpicking its own settlement agreement. "I don't mean to minimize it," Issacharoff added. Issacharoff said seven different circuit judges have so far have had to address "some application" of this issue. Looking to U.S. Circuit Judge Jerry Smith's previous opinion, Issacharoff paraphrased Smith saying the 5th Circuit doesn't take up this sort of issue; it belongs to the district court. Issacharoff said, with regard to BP's overpayments to nonprofits, the particular facts of the case are "non-reviewable." He said the determination of settlement payments is "across the board" and has been used to calculate the losses of "thousands upon thousands upon thousands" of applicants. Issacharoff said appeals must be both "timely" and "important." He additionally argued that BP's claims it cannot enter docket or appeal are false. BP, he said, could enter documents into docket themselves and can enter notice of appeal without docketing. In his rebuttal, Hungar cited a previous order from the district court that he said was specifically intended to keep BP off the docket. BP wants to do away with the "gamesmanship" of the settlement agreement, Issacharoff said. Senior U.S. Circuit Court Judge Fortunato Benavides said of the settlement agreement and BP's complaints: "It's not the implementation, it's the interpretation." Issacharoff disagreed, saying "otherwise, everything becomes a matter of interpretation." Immediately after the hearing, BP issued a lengthy written statement amplifying its attorney's statements in the courtroom. "In the course of BP's challenge of those awards, on May 20, the District Court issued an order that denied judicial review of all awards by the settlement program that turn solely on specified policies issued by the Claims Administrator, improperly depriving BP of its appeal rights," said the statement, which was attributed to Geoff Morrell, the former Defense Department press secretary who joined BP in the wake of the April 2010 oil spill. "The order also improperly blocked the parties form filing requests for judicial review on the public court docket, thereby denying the public the opportunity to be informed about ongoing judicial proceedings and impermissibly interfering with BP's right to make an appropriate record for appeal. To uphold the District Court's order would violate federal rules, and conflict with the case law not only in the Fifth Circuit but in other judicial circuits as well. These important issues implicate awards involving tens of millions of dollars," the statement said. Class counsel declined comment. Last month Judge Barbier found BP grossly negligent for its part in the April 2010 Deepwater Horizon disaster that killed 11 and dumped 4.9 million barrels of oil and more than 1.8 million gallons of chemical dispersant into the Gulf of Mexico. The third phase of the trial over the spill is scheduled to begin in January, and will be heard in Judge Barbier's courtroom without a jury. This final phase is to determine exactly how much oil was spilled. BP could face up to $18 billion in Clean Water Act fines. BRISTOL-MYERS SQUIBB: Judge Remands 57 Plavix Cases to California ----------------------------------------------------------------- Charles Toutant, writing for New Jersey Law Journal, reports that a federal judge in Newark ordered 57 cases in the multidistrict litigation over blood-thinning drug Plavix remanded to California after rejecting claims that the plaintiffs fraudulently joined a distributor of the drug to defeat diversity jurisdiction. In litigation against Bristol-Myers Squibb and Sanofi-Aventis, the plaintiffs sought to return to California 60 cases that were filed in a state court in San Francisco and then removed by the defendants to the U.S. District Court for the Northern District of California. The cases were then transferred to New Jersey in June 2013 under an order of the Judicial Panel on Multidistrict Litigation. Bristol-Myers Squibb and Sanofi-Aventis, who manufactured and sold Plavix, claimed the plaintiffs added California-based drug distributor McKesson Co. as a defendant in the cases without a reasonable basis. Bristol-Myers Squibb and Sanofi-Aventis argued that federal law preempts application of the suits' failure-to-warn claims against McKesson, because it has no control over the content of the drug's safety label. They also claimed McKesson should not have been joined because no allegations were made that it actually distributed the Plavix pills taken by the plaintiffs. U.S. District Judge Freda Wolfson of the District of New Jersey denied the motion to remand three of the 60 cases, because McKesson had not yet been served with the complaint at the time Bristol-Myers Squibb and Sanofi-Aventis removed them to federal court. But Judge Wolfson allowed the other 57 cases to return to federal court in the Northern District of California for the purposes of remand to state court in San Francisco. Judge Wolfson said the question of whether the claims are preempted should be answered by a state judge in California. And she said the plaintiffs had demonstrated that they can bring a colorable claim against McKesson. In allowing three cases to remain in the MDL based on the failure to serve McKesson at the time of removal, Judge Wolfson noted that courts were split on whether the so-called forum defendant rule should apply in such circumstances. She said courts that have ruled that removal of cases where a properly joined forum defendant has not been served is improper have relied on putative congressional and legislative intent, rather than the "plain and unambiguous language" of the removal statute. But that approach goes against the U.S. Supreme Court's doctrine giving more authority to a statutory text than to extrinsic materials, she said. The California suits claim plaintiffs suffered heart attacks, strokes, internal bleeding, blood disorders or death after taking Plavix. They are bringing only state-law claims for failure to warn of the drug's dangers. Bristol-Myers Squibb is headquartered in New York; Sanofi-Aventis is a French company with headquarters in New Jersey, and subsidiary Sanofi-Synthelabo is a Delaware corporation with headquarters in New York. Besides rejecting the defendants' fraudulent joinder claim for 12 of the 57 California cases, Judge Wolfson also rejected the defendants' claims of fraudulent misjoinder in 45 other cases in which at least one plaintiff resides in New York, New Jersey or Delaware. In those cases, Bristol-Myers Squibb and Sanofi-Aventis argued that the fraudulent misjoinder doctrine applied in those cases because the nondiverse plaintiffs in the 45 cases fail to meet the minimum standards for joinder and called for those claims to be severed and dismissed. Judge Wolfson expressed "concerns with the manner in which seemingly unrelated plaintiffs and nondiverse plaintiffs have joined their claims in single, multi-plaintiff actions." However, she said the question of misjoinder should be decided by the state court as a matter of removal jurisprudence. The cases in question join claims of plaintiffs from different states who have nothing in common other than taking Plavix, Judge Wolfson said. Judge Wolfson said that in pharmaceutical cases like those before her, "courts should be steadfast in guarding against plaintiffs' attempts at forum shopping by employing questionable procedural mechanisms, including misjoinder of claims." While acknowledging that California has "particularly liberal" rules on joinder, she said that "the question of misjoinder remains in these cases, but will be left to the sound judgment of the state court." The 57 cases being remanded to California account for "a couple of thousand" individual plaintiffs, and the cases remaining in the MDL now account for about 600 plaintiffs, according to plaintiffs lawyer Hunter Shkolnik -- Hunter@NapoliBern.com -- of Napoli Bern Ripka Shkolnik & Associates in New York. The action follows a similar one in which another 600 cases that were removed from Illinois were returned to that state, and another one in which suits by attorneys general of several states were returned to their respective states of origin, Mr. Shkolnik said. "This is huge. We've been fighting this for two years," Mr. Shkolnik said. The MDL "is no longer the head of the dog, now it's the tail of the dog," he said. Anand Agneshwar -- Anand.Agneshwar@aporter.com -- of Arnold & Porter in New York, representing Bristol-Myers Squibb and Sanofi- Aventis, declined to comment on the ruling. CHARDON POLICE: Judge Oliver Dismisses "Andrews" Lawsuit -------------------------------------------------------- Chief District Judge Solomon Oliver, Jr., entered orders on Sept. 30, 2014 in the case ANDREWS, Plaintiffs v. FLAIZ, et al., Defendants, Case No. 1:14-CV-623 (N.D. Ohio). Plaintiffs are John Mark Andrews and Judee Andrews, whose claims pertain to John's arrest and prosecution. The Defendants are prosecutors of Geauga County and police officers of Chardon Police Station. The Plaintiffs allege that the Defendants, acting in their official and individual capacities, violated Plaintiff's federal constitutional rights to equal protection and due process under the First, Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments. Plaintiffs seek an order requiring Defendants to return their weapons, and awarding them monetary damages in the amount of $1,000,000. They also request class action certification. In his Sept. 30 Order available at http://is.gd/Mgfa5jfrom Leagle.com, the judge ruled that: -- Plaintiffs' Motion for Default Judgment is denied. -- Defendants' Motions to Dismiss are granted, Plaintiffs' Motion to Strike Defendants' Motions to Dismiss, Motion for Objection and to Strike Defendants' Motions to Dismiss, Motion to Show Cause, and Motion for Objection and to Strike Defendants' Motions to Dismiss are denied, and this action is dismissed. -- Plaintiffs' Motion for Preliminary Injunction and Motion for Extension of Time are denied as moot. The Court certifies that an appeal from this decision could not be taken in good faith. Defendant John Hiscox is represented by Jaclyn C. Staple, Esq. -- jstaple@mggmlpa.com -- Justin J. Eddy, Esq. -- jeddy@mggmlpa.com -- and Timothy T. Reid, Esq. -- treid@mggmlpa.com -- of Mansour Gavin. CHARLES I. TURNER: Accused of Violating Fair Debt Collection Act ---------------------------------------------------------------- Helena Casares, an individual; on behalf of herself and all others similarly situated v. Charles I. Turner, Esq., Case No. 2:14-cv- 05863-ADS-SIL (E.D.N.Y., October 7, 2014) alleges violations of the Fair Debt Collection Practices Act. The Plaintiff is represented by: Abraham Kleinman, Esq. KLEINMAN, LLC 626 RXR Plaza Uniondale, NY 11556-0626 Telephone: (516) 522-2621 Facsimile: (888) 522-1692 E-mail: akleinman@kleinmanllc.com CHINA GREEN: Nevada Court Approves Securities Suit Settlement ------------------------------------------------------------- The United States District Court for the District of Nevada entered an order and final judgment granting final approval to a settlement reached in a securities suit against China Green Agriculture, Inc., according to the company's Sept. 15, 2014, Form 10-K filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2014. On October 15, 2010, a class action lawsuit was filed against the company and certain of the company's current and former officers in the United States District Court for the District of Nevada (the "Court") on behalf of purchasers of the company's common stock between November 12, 2009 and September 1, 2010. The most recent version of the complaint alleges that the Company and certain current and former officers and directors violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Sections 11, 12(a)(2), and 15 of the Securities Act of 1933, as amended, by making material misstatements and omissions in the company's financial statements, securities offering documents, and related disclosures during the class period. On October 7, 2011, the defendants moved to dismiss the amended complaint and to strike portions of it. On November 2, 2012, the Court issued an order dismissing the claims for violation of sections 11, 12(a)(2) and 15 of the Securities Act of 1933 as to all defendants and dismissing two individual defendants from the complaint but allowing the claims for violations of section 10(b) and 20(a) of the Securities Exchange Act of 1934 to continue with respect to the Company and the remaining individual defendants. The Court also denied the defendants' motion to strike. The parties to the securities class action held a mediation on March 7, 2013, which led to an agreement in principle to settle the case for a payment of $2.5 million by the company's insurers in exchange for a release of all claims against all defendants. On August 12, 2014, the Court entered an order and final judgment granting final approval to the settlement and dismissing all claims in accordance with the settlement agreement. CHRYSLER GROUP: Suit Accuses Dodge Rams of Having Death Wobble -------------------------------------------------------------- Dodge Ram trucks from 2004 to 2012 model years have defective steering that makes them shake "uncontrollably when driven at high speeds," according to a federal class action, reports Matt Reynolds at Courthouse News Service. Lead plaintiff Richard Samuel claims that in early 2013 he was driving his 2007 Dodge Ram 3500 on the freeway when the truck began to shake so violently he thought he had had a blowout. When he got the truck under control and pulled over, Samuel claims, he found nothing wrong with his tires. He says he concluded that what had happened was a one-off. In fact, he says, he had experienced a "death wobble," caused by a defect in Dodge Rams that makes them shake violently and sometimes uncontrollably at high speeds. Samuel sued Chrysler Group on Oct. 3. He claims the defect occurs in "certain 2004-2012 Dodge Ram trucks." Samuel claims that if his truck hits minor bumps in the road or an uneven surface at faster than 50 mph the dreaded "death wobble" kicks in. To keep his truck under control he has to hold the wheel as firmly as he can, and the shaking stops only when he has brought the truck to a complete standstill, Samuel says. He says the problem is in the steering linkage system -- which should stabilize front wheels when trucks roll over bumps or other uneven surfaces at high speeds. In the defective Rams the front wheels do not properly stabilize when the trucks go over uneven surfaces, according to the complaint. Eventually, wear and tear results in uncontrollable shaking. Samuel says he discovered something might be up when a new alignment and tires did not stop the death wobble. An online search revealed that other drivers were dealing with the same problem, according to the complaint. Eventually, Samuel says, he received a recall notice for the tire rods in his truck. But a technician at a Chrysler dealership told him that his Ram did not include the recalled part. When he told the dealership about the death wobble, he says, the employees pleaded ignorance and "shrugged their shoulders." Samuel claims that Chrysler has known about the problem since the mid-2000s, and waited almost half a decade before "conducting a series of botched recalls." "The recalls omitted many affected vehicles and provided replacement parts that were themselves defective, forcing Chrysler to make additional recalls to remedy previous ones," Samuel says in the lawsuit. Demand for replacement parts has been so high, Samuel claims, that Chrysler has been unable to fix all trucks that have been brought into dealerships. He claims that five models of Dodge Rams have the dangerous defect: the 2004-2012 Dodge Ram 2500; 2004-2012 Dodge Ram 3500; the 2007-2012 Dodge Ram 3500 Cab Chassis trucks; 2008-2012 Dodge Ram 4500 and 5500; and 2006-2008 Dodge RAM 1500. He seeks class certification, wants Chrysler enjoined from unlawful business practices, plus disgorgement of profits, restitution, damages for unjust enrichment, negligence, negligent misrepresentation, failure to warn and unfair competition. The Plaintiff is represented by: Eric H. Gibbs, Esq. Dylan Hughes, Esq. GIRARD GIBBS LLP 601 California Street, 14th Floor San Francisco, CA 94108 Telephone: (415) 981-4800 Facsimile: (415) 981-4846 E-mail: ehg@girardgibbs.com dsh@girardgibbs.com - and - Gregory F. Coleman, Esq. GREG COLEMAN LAW PC Bank of America Center 550 Main Avenue, Suite 600 Knoxville, TN 37902 Telephone: (865) 247-0080 Facsimile: (865) 522-0049 E-mail: greg@gregcolemanlaw.com CITIGROUP INC: Bid to Dismiss Leber Suit on Timeliness Basis Nixed ------------------------------------------------------------------ In the action LEBER v. THE CITIGROUP 401(K) PLAN INVESTMENT COMMITTEE, District Judge Sidney H. Stein denied the Defendants' motion for summary judgment, opining that the Defendants have failed to demonstrate pursuant to 29 U.S.C. Sec. 1113 that plaintiffs had "actual knowledge" of the alleged breaches three years before commencing the action. Moreover, in the recent ruling, the parties are directed to submit an agreed upon schedule for the remaining discovery in the action on or before October 17, 2014. The Defendants' summary judgment asked the Court to dismiss as untimely plaintiffs' putative class action alleging violations of the Employee Retirement Income Security Act. The action is captioned MARYA J. LEBER, SARA L. KENNEDY, and all others similarly situated, Plaintiffs, v. THE CITIGROUP 401(k) PLAN INVESTMENT COMMITTEE, JAMES COSTABILE, ROBERT GROGAN, ROBIN LEOPOLD, GLENN REGAN, CHRISTINE SIMPSON, RICHARD TAZIK, TIMOTHY TUCKER, LEO VIOLA, DONALD YOUNG, MARCIA YOUNG, and DOE DEFENDANTS 1-20, Defendants, Case No. 07-CV-9329(SHS), (S.D.N.Y.). The Plaintiffs were Citigroup employees who participated in Citigroup's 401(k) retirement plan. The gravamen of the Second Amended Complaint is that defendants included in Citigroup's 401(k) retirement plan mutual funds offered and managed by subsidiaries of Citigroup (the Affiliated Funds) despite the fact that those Funds had "higher investment advisory fees than those of competing funds" with equal performance. A copy of Judge Stein's Sept. 30, 2014 Opinion and Order is available at http://is.gd/kVXtU2from Leagle.com. Defendant James Zelter is represented by Lewis Richard Clayton, Esq. of Paul, Weiss, Rifkind, Wharton & Garrison LLP. COMCAST CORP: Plaintiffs File Motion for Spoliation Sanctions ------------------------------------------------------------- Lisa Hoffman, writing for The National Law Journal, reports that plaintiffs in a proposed collective action alleging Comcast Corp. failed to pay overtime to certain employees have asked a Maryland federal judge to sanction the company for willful failure to keep records that would show how many hours the employees spent on the job. The records, which identify the times Comcast call center "customer account executives" logged into and out of their computers and telephones, are central to the allegations in Faust v. Comcast that the plaintiffs have not been compensated fully for all the time they worked, according to a motion for spoliation sanctions filed on Oct. 2 in U.S. District Court for the District of Maryland. Plaintiffs Joel Faust and Marshall Feldman allege that two months after they filed suit on Aug. 23, 2010, their attorneys put Comcast on notice to preserve the records, which ordinarily were overwritten on a rolling basis; the data typically were preserved for two to four months at a time. But it wasn't until April 2011 that Comcast began to preserve log- in times for workers at White March, Md., call centers, the motion alleges; older records, it says, "cannot be retrieved and (are) forever lost." The plaintiffs allege the employees regularly logged in and began working before their shifts officially began, but were not paid for the extra time. The plaintiffs allege Comcast has shown bad faith and breached its duty to preserve evidence. Comcast did not immediately respond to the allegations. The motion asks Senior U.S. District Court Judge William Nickerson to consider assessing attorneys' fees and costs; giving the jury an adverse-inference instruction; precluding Comcast's evidence; or granting a default judgment. In July, Nickerson denied the plaintiffs' motion for class certification, ruling that class-wide issues did not predominate and that there was not enough commonality among the plaintiffs' experiences. The plaintiffs had alleged Comcast violated the federal Fair Labor Standards Act and Maryland labor laws. The surviving collective action concerns alleged FLSA violations alone. Comcast's counsel are attorneys with Morgan Lewis and Bockius. Plaintiffs are represented by attorneys with Stephan Zouras and the Law Office Of Gary M. Gilbert and Associates. COMMAND TECHNOLOGIES: Suit Seeks to Recover Wages and Damages ------------------------------------------------------------- Brandy Sturtz, 7816 Harold Road, Baltimore, MD 21222 v. Command Technologies, Inc., 7505 Resource Court, Curtis Bay, MD 21226; and George R. Braswell, 7604 Energy Pkwy, Curtis Bay, MD 21226, Case No. 1:14-cv-03148 (D. Md., October 7, 2014) is brought to recover unpaid wages and statutory damages under the Federal Fair Labor Standards act of 1938, the Maryland Wage and Hour Law, the Maryland Wage Payment and Collection Law, and for retaliation. Command Technologies, Inc. is a Maryland corporation. George R. Braswell is the owner of Command Technologies. The Plaintiff is represented by: Ken C. Gauvey, Esq. THE LAW PRACTICE OF KEN C. GAUVEY 111 South Calvert Street, Suite 2700 Baltimore, MD 21202 Telephone: (410) 346-2377 Facsimile: (866) 487-1154 E-mail: kgauvey@gauveylaw.com COOPER TIRE: "Bui" Suit on Apollo Merger Transferred to Del. Ct. ---------------------------------------------------------------- District Judge James G. Carr, Sr., for the District of Ohio authorized the transfer venue of the case captioned David Bui, et al., Plaintiff, v. Roy V. Armes, et al., Defendants, Case No. 3:14CV428 (D.Ohio), to the District of Delaware. The case is a shareholder derivative action brought by plaintiffs David Bui and Henry Zwang against nominal defendant Cooper Tire & Rubber Company and several of its officers and directors: Roy Armes, Bradley Hughes, Thomas Capo, Steven Chapman, John Holland, John Meier, Cynthia Neikamp, John Shuey, Richard Wambold, and Robert Welding. Plaintiffs allege that defendants' breached their fiduciary duty in relation to a failed merger transaction. Cooper is a multi-national tire company incorporated in Delaware and headquartered in Findlay, Ohio. In 2013, the company attempted to merge with Apollo Tyres Ltd., an Indian company. Plaintiffs allege that Cooper's proxy statement to its shareholders downplayed Cooper Changshan Tire Company, Ltd (CCT)'s opposition and misled the shareholders on the viability of the proposed merger with Apollo. In his Oct. 6, 2014 Order available at http://is.gd/oeLgXefrom Leagle.com, Judge Carr Thus said he finds private and public interests strongly favor transfer of venue to the District of Delaware. Currently, a securities class action and a shareholder derivative action, both of which involve the same or substantially similar alleged facts and defendants -- -- OFI Risk Arbitrages, et al., v. Cooper Tire & Rubber Company, et al., No. 1:14-cv-0068 (D. Del.) and Fitzgeralad v. Armes, et al., No. 1:14-cv-0479 (D. Del.) -- are pending in the U.S. District Court for the District of Delaware. Cooper Tire & Rubber Company, Defendant, is represented by Amanda J. Martinsek, Esq. -- amartinsek@tmlpa.com , and Richard S. Walinski, Esq. -- rwalinski@tmlpa.com -- of Thacker Martinsek. CORRECTIONS CORP: Hawaiian Inmates Obtain Class Certification ------------------------------------------------------------- Lisa Hoffman, writing for The National Law Journal, reports that Hawaiian prisoners incarcerated in Arizona have won certification for their class action alleging they are unconstitutionally prohibited from practicing their native religion. On Sept. 30, U.S. District Leslie Kobayashi of the District of Hawaii certified Davis v. Abercrombie, a vigorously contested lawsuit that alleges hundreds of Native Hawaiian prisoners have been barred from daily outdoor religious rituals as well as access to sacred objects that are key to their faith. Hawaii contracts with Corrections Corp. of America to house many convicted of crimes in Hawaii in its for-profit mainland prisons; about 2,000 are in such custody now, according to the complaint. Among them are at least 179 registered as Native Hawaiian practitioners in the company's Arizona facilities. The lawsuit, filed in 2011 and led by the Native Hawaiian Legal Corp., alleges the company has violated the First Amendment's free exercise and establishment clauses, as well as the 14th Amendment's equal-protection clause, and the federal Religious Land Use and Institutionalized Persons Act. Also named as a defendant is Hawaii Gov. Neil Abercrombie. The plaintiffs allege the company unlawfully forbids participation in communal outdoor ceremonies during the October to February season of Makahiki, a harvest and New Year commemoration that requires gathering daily at sunrise outside. Plaintiffs also allege they are illegally denied access to such ritually essential objects as personal amulets, ohe hano ihu (bamboo nose flutes), coconut oil, and malo, kihei and pau (native garments). They also allege that they are subject to restrictions not imposed on other religious groups, such as Buddhists, who are permitted to gather outside from 7 a.m. to 8 a.m. Monday through Friday. Also discriminatory, according to the complaint, is the company's refusal to allow the wearing of amulets sent to them by kapuna, or spiritual advisers, while Christian inmates and those of other faiths are permitted to possess crucifixes and other pendants. CCA denies all allegations of wrongdoing and liability, and contends it accommodates a reasonable amount of religious practice for inmates of all faiths. The company says its accommodations for Native Hawaiian cultural practices are reasonable, given the security requirements of a correctional facility. Plaintiffs ask for declarative and other relief. Defendant's counsel are attorneys with the firms Struck Wieneke & Love and Roeca Luria Hiraoka. Along with the Native Hawaiian Legal Corp., plaintiffs' attorneys are with the firms Revere and Associates and Kawahito Shraga & Westrick. CROSSMARK INC: "Smith" Suit Moved From C.D. to N.D. California -------------------------------------------------------------- The class action lawsuit entitled Gayle Smith v. Crossmark Inc., et al., Case No. 2:13-cv-08624, was transferred from the U.S. District Court for the Central District of California to the U.S. District Court for the Northern District of California (San Francisco). The Northern District Court Clerk assigned Case No. 3:14-cv-04461-MEJ to the proceeding. The lawsuit arose from labor-related issues. The Plaintiff is represented by: Shawn C. Westrick, Esq. Karen L. Majovski, Esq. Timothy Patrick Hennessy, Esq. KAWAHITO SHRAGA AND WESTRICK LLP 1990 South Bundy Drive, Suite 280 Los Angeles, CA 90025 Telephone: (310) 746-5300 Facsimile: (310) 593-2520 E-mail: swestrick@kswlawyers.com kmajovski@kswlawyers.com thennessy@kswlawyers.com The Defendants are represented by: Allison C. Eckstrom, Esq. Lara Cardin de Leon, Esq. Rafael G. Nendel-Flores, Esq. OGLETREE DEAKINS NASH SMOAK AND STEWART PC 695 Town Center Drive Park Tower, Suite 1500 Costa Mesa, CA 92626 Telephone: (714) 800-7900 Facsimile: (714) 754-1298 E-mail: allison.eckstrom@ogletreedeakins.com lara.deleon@ogletreedeakins.com rafael.nendel-flores@ogletreedeakins.com DOLLAR GENERAL: Georgia Class Suit Seeks to Collect Unpaid Wages ---------------------------------------------------------------- Reba Gail Cleland and Terry W. Cleland v. Dollar General, Case No. 5:14-cv-00076-LGW-JEG (S.D. Ga., October 6, 2014) seeks to collect unpaid wages. The Plaintiffs are represented by: Joseph J. Segui, Jr., Esq. LAW OFFICE OF JOSEPH J. SEGUI, PC P.O. Box 699 Waynesville, GA 31566 Telephone: (912) 399-9922 Facsimile: (404) 671-8569 E-mail: jseguilaw@hotmail.com - and - Rita C. Spalding, Esq. LAW OFFICE OF RITA SPALDING 1522 Richmond Street Brunswick, GA 31520 Telephone: (912) 261-8686 Facsimile: (912) 261-8689 E-mail: rspaldinglaw@bellsouth.net DOW CHEMICAL: 10th Cir. Upholds $1-Bil. Polyurethane Class Action ----------------------------------------------------------------- Amaris Elliott-Engel, writing for The National Law Journal, reports that the U.S. Court of Appeals for the Tenth Circuit has upheld a $1 billion antitrust class action judgment against Dow Chemical Co. involving a conspiracy to fix prices for polyurethane products. The jury awarded $400 million against Dow for making purchasers pay more than they would have in a competitive market. The total judgment was $1.1 billion after damages were trebled and settlements by other defendants were deducted. Dow argued on appeal that common questions did not predominate and the case ran afoul of the U.S. Supreme Court's 2011 ruling in Walmart Stores Inc. v. Dukes and 2013 ruling in Comcast Corp. v. Behrend. What matters under Walmart is whether a class action can generate common answers that will resolve the litigation, Circuit Judge Robert Bacharach wrote. In this case, there were common questions that could yield answers at trial as to whether a conspiracy existed and whether the conspiracy harmed customers, he said. "Price-fixing affects all market participants, creating an inference of class-wide impact even when prices are individually negotiated," he said. The plaintiffs alleged that Dow and other chemicals companies fixed prices between Jan. 1, 1999, and Dec. 31, 2003, in violation of Sherman Act Section 1 by coordinating price-increase announcements and by trying "to make the price increases stick in individual contract negotiations." The other defendants -- Bayer A.G., Bayer Corp., Bayer Material Science, BASF Corp. , Huntsman International LLC and Lyondell Chemical Co., settled with the plaintiffs before trial. EL AHORRO SUPERMARKET: Fails to Pay Overtime Wages, Class Claims ---------------------------------------------------------------- Ignay Torrado, Juan Miguel Chacon Bermudez and all others similarly situated under 29 U.S.C. 216(b) v. El Ahorro Supermarket, Corp., Reynaldo Garcia, Juan C. Chavez and Wilder Padron, Case No. 1:14-cv-23705-JLK (S.D. Fla., October 7, 2014) arises from the Defendants' alleged violations of the Fair Labor Standards Act brought on behalf of their similarly situated employees, who have not been paid overtime and minimum wages for work performed in excess of 40 hours weekly. El Ahorro Supermarket, Corp. is a corporation that regularly transacts business within Dade County. The Individual Defendants are corporate officers, owners or managers of the Company. The Plaintiffs are represented by: J.H. Zidell, Esq. J.H. ZIDELL, P.A. 300 71st Street, Suite 605 Miami Beach, FL 33141 Telephone: (305) 865-6766 Facsimile: (305) 865-7167 E-mail: zabogado@aol.com ESPN INC: Student-Athletes Sue in Tennessee Over Use of Likeness ---------------------------------------------------------------- Kevin Lessmiller, writing for Courthouse News Service, reports that 10 former college football and basketball players, nine of them from Tennessee, have filed a class action lawsuit claiming their images were improperly used without their permission. The lawsuit comes on the heels of high profile victories for student-athletes in the courts, but also just days after the U.S. Supreme Court declined to take up the rights to publicity question this term. The lawsuit targets ESPN, the four major television networks and eight NCAA athletic conferences, and licensing companies with ties to the athletic conferences. The plaintiffs include former Vanderbilt, Tennessee, UT-Chattanooga and Washington football players as well as Tennessee State and Maryland Eastern Shore basketball players. In their complaint they argue that the television networks, athletic conferences and licensing agencies, conspired to exploit rules forbidding student athletes from "competing in the marketplace for the value of their rights to publicity." The plaintiff's claims are similar to those contained in a lawsuit filed by former UCLA basketball player Ed O'Bannon. In August a federal judge ruled in O'Bannon's favor, finding that NCAA limits on what players can receive for playing sports violates antitrust laws. The case is now on appeal before the 9th U.S. Circuit Court of Appeals. The lawsuit comes a month after a federal judge in San Francisco approved a $60 million settlement for student-athletes who appeared in NCAA-branded video games since 2003. In this case the plaintiff's contend that "[t]he alleged 'release' that the Student Athletes are forced to sign as a condition of playing football or basketball in college is void as a matter of public policy, unconscionable, and vague, and therefore void and/or unenforceable." Specifically, they take issue with wording on the form that purports to allow the NCAA to use the student-athlete's name or picture to "generally promote" its championships, events or programs. According to the plaintiff's, "The meaning of 'generally promote' is not defined, rendering Student Athletes uninformed as to what they are signing." "Defendants' use of student athletes' names, images, and likenesses is unauthorized because student athletes have not legally assigned their publicity rights to defendants, the NCAA, or third parties acting on behalf of the NCAA," the complaint states. "The waiver student athletes are required to sign . . . is the linchpin of defendants' unlawful conduct and is invalid or otherwise unenforceable." The plaintiffs say that "[t]he conspiracy between and among the broadcast defendants, licensing defendants, conference defendants and the NCAA has created a marketplace resembling a plantation type arrangement where defendants financially benefit in the collective amount of billions of dollars, while student athletes, the driving force of college sports, receive nothing more than their cost of attendance." "This conspiracy has created an anticompetitive marketplace in which all defendants commercially exploit the substantial value of each student athletes' images," the plaintiffs say. They are seeking unspecified general damages, treble damages, a disgorgement of all profits the defendants earned through the wrongful use of their likenesses, declarative and injunctive relief, and attorneys fees. The Supreme Court has denied video game-maker Electronic Art's bid to appeal a 9th Circuit ruling for a class of college athletes led by former Nebraska and Arizona State quarterback Sam Keller. Keller sued the NCAA and Electronic Arts (EA) in 2009 for using his image and likeness to increase profits for its NCAA-branded football and basketball video games. The Plaintiffs are represented by: Stephen J. Zralek, Esq. John P. Branham, Esq. BONE McALLESTER NORTON PLLC 511 Union Street, Suite 1600 Nashville, TN 37219 Telephone: (615) 259-5508 E-mail: szralek@bonelaw.com jbranham@bonelaw.com - and - Richard Manson, Esq. Ronald A. Stewart, Esq. STEWART JOHNSON CONNER & MANSON, LLP 215 2nd Ave. North, Suite 300 Nashville, TN 37201 Telephone: (615) 254-1600 Facsimile: (615) 891-2395 E-mail: richardmanson@comcast.net rstewart@stewartjohnsonlaw.com - and - Patrick D. McMurtray, Esq. McMURTRAY LAW FIRM, PLLC P.O. Box 80 Christiana, TN 37037 EXTREME NETWORKS: Seeks Indemnification in Suit v. Enterasys ------------------------------------------------------------ Extreme Networks, Inc. has made a claim for indemnification to Unify U.S. Holdings, Inc. in relation to a labor lawsuit filed against Enterasys Networks, Inc. in the Commonwealth of Kentucky, according to Extreme's Sept. 15, 2014, Form 10-K filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2014. On or about February 3, 2014, a class action lawsuit was filed in the Commonwealth of Kentucky against Enterasys Networks, Inc. and two other defendants. The complaint alleges that Enterasys and its subcontractor, TJL Information Technologies, Inc., d.b.a. Unbridled Information Technologies ("Subcontractor"), violated Kentucky's wage and hour laws and failed to pay the prevailing wage in violation of the Kentucky State Prevailing Wage Act (the "Act") on various public works projects for a number of Kentucky government agencies since January 2010. Plaintiffs also allege common law actions for quantum merit and unjust enrichment and they seek monetary damages, costs, expenses and attorney fees, although there was no quantified amount identified. One of the defendants, Integrated Facility Systems, LLC ("IFS"), has filed a cross-claim against Enterasys. The Company denies the claims and has filed answers to both the complaint and cross-claim on April 16, 2014. In addition, Company filed a cross-claim for indemnity against IFS and the Subcontractor. This litigation is in the early stages of discovery. Furthermore, the Company has made a claim for indemnification to Unify U.S. Holdings, Inc. (formerly known as Enterprise Networks Holdings, Inc.) ("Seller"), which claim arises pursuant to the stock purchase agreement between Seller and Extreme in connection with Extreme's purchase of Enterasys (the "Purchase Agreement"). Given the preliminary nature of the lawsuit, it is premature to assess the likelihood of a particular outcome. FANNIE MAE & FREDDIE MAC: FHFA Wins Dismissal of Perry et al Case ----------------------------------------------------------------- In the cases PERRY CAPITAL LLC, Plaintiff, v. JACOB J. LEW, et al, Defendants. FAIRHOLME FUNDS, INC., et al, Plaintiffs, v. FEDERAL HOUSING FINANCE AGENCY, et al., Defendants. ARROWOOD INDEMNITY COMPANY, et al., Plaintiffs, v. FEDERAL NATIONAL MORTGAGE ASSOCATION, et al., Defendants. In re Fannie Mae/Freddie Mac Senior Preferred Stock Purchase Agreement Class Action Litigations, CIVIL NOS. 13-1053 (RCL), 13-1439 (RCL), 13-1025 (RCL), (D.D.C.), the Court ruled on motions to dismiss or, in the alternative, for summary judgment, filed by the defendants United States Department of the Treasury (Treasury) and Federal Housing Finance Agency (FHFA), as well as a cross-motion for summary judgment on Administrative Procedure Act (APA) claims filed by the Perry, Fairholme, and Arrowood plaintiffs. District Judge E C. Lamberth, in a memorandum opinion dated September 30, 2014, a copy of which is available at http://bit.ly/1oPTfedfrom Leagle.com, granted the defendants' motions to dismiss the complaints for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim under Rule 12(b)(6). The Court also denied the individual plaintiffs' cross-motion for summary judgment. This matter was brought before the Court by both a class action lawsuit and a set of three individual lawsuits. These four lawsuits contain numerous overlapping, though not identical, claims. The purported class plaintiffs consist of private individual and institutional investors who own either preferred or common stock in the Federal National Mortgage Association (Fannie Mae) or the Federal Home Loan Mortgage Corporation (Freddie Mac). The individual plaintiffs comprise a collection of private investment funds and insurance companies. The Memorandum Opinion relates to all cases. FEDERAL HOUSING FINANCE AGENCY, Defendant, represented by Asim Varma -- Asim.Varma@aporter.com -- ARNOLD & PORTER LLP, David Block Bergman -- david_bergman@aporter.com -- ARNOLD & PORTER LLP & Howard Neil Cayne -- Howard.Cayne@aporter.com -- ARNOLD & PORTER LLP. FEDEX CORP: Still Faces Suits for Mandatory "Off the Clock" Work ---------------------------------------------------------------- Fedex Corporation continues to face a number of lawsuits containing various class-action allegations of wage-and-hour violations, according to the company's Sept. 18, 2014, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Aug. 31, 2014. The plaintiffs in these lawsuits allege, among other things, that they were forced to work "off the clock," were not paid overtime or were not provided work breaks or other benefits. The complaints generally seek unspecified monetary damages, injunctive relief, or both. FEDEX CORP: Provides Updates on Independent Contractor Lawsuits --------------------------------------------------------------- FedEx Ground is involved in numerous class-action lawsuits (including 26 that have been certified as class actions), individual lawsuits and state tax and other administrative proceedings that claim that the company's owner-operators should be treated as employees, rather than independent contractors, according to Fedex Corp.'s Sept. 18, 2014, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Aug. 31, 2014. Most of the class-action lawsuits were consolidated for administration of the pre-trial proceedings by a single federal court, the U.S. District Court for the Northern District of Indiana. The multidistrict litigation court granted class certification in 28 cases and denied it in 14 cases. On December 13, 2010, the court entered an opinion and order addressing all outstanding motions for summary judgment on the status of the owner-operators (i.e., independent contractor vs. employee). In sum, the court ruled on the company's summary judgment motions and entered judgment in favor of FedEx Ground on all claims in 20 of the 28 multidistrict litigation cases that had been certified as class actions, finding that the owner-operators in those cases were contractors as a matter of the law of 20 states. The plaintiffs filed notices of appeal in all of these 20 cases. The Seventh Circuit heard the appeal in the Kansas case in January 2012 and, in July 2012, issued an opinion that did not make a determination with respect to the correctness of the district court's decision and, instead, certified two questions to the Kansas Supreme Court related to the classification of the plaintiffs as independent contractors under the Kansas Wage Payment Act. The Kansas Supreme Court heard oral argument on November 5, 2013. The other 19 cases that are before the Seventh Circuit remain stayed pending a decision of the Kansas Supreme Court. The multidistrict litigation court remanded the other eight certified class actions back to the district courts where they were originally filed because its summary judgment ruling did not completely dispose of all of the claims in those lawsuits. Four of the cases remain pending in their respective district courts, but three of these four matters settled for immaterial amounts. The courts have granted final approval of two of the three settlements, while the other settlement remains subject to court approval. One of the cases is on appeal with the Court of Appeals for the Eleventh Circuit. The other three cases, which had been decided in the company's favor by the respective district courts in Oregon and California, were appealed to the Ninth Circuit Court of Appeals. On August 27, 2014, the Ninth Circuit reversed the district court decisions and held that the plaintiffs in California and Oregon were employees as a matter of law. While the company does not agree with the court's decision and will ask the court to reconsider and petition for en banc review by the full Ninth Circuit Court of Appeals, during the first quarter of 2015 the company established an accrual for the estimated probable loss in this case that was required to be recognized pursuant to applicable accounting standards. FEDEX GROUND: Kansas High Court Clarifies Definition of Drivers --------------------------------------------------------------- In CARLENE M. CRAIG, LEO RITTENHOUSE, JEFF BRAMLAGE, LAWRENCE LIABLE, and KENT WHISTLER, Appellants, v. FEDEX GROUND PACKAGE SYSTEM, INCORPORATED, Appellee, NO. 108,526, the United States Court of Appeals for the Seventh Circuit are seeking answers from the Supreme Court of Kansas to two certified questions regarding the proper classification of FedEx Ground Package System, Inc. (FedEx) delivery drivers under the provisions of the Kansas Wage Payment Act (KWPA), K.S.A. 44-313 et seq. Specifically, the Seventh Circuit inquires: "1. Given the undisputed facts presented to the district court in this case, are the plaintiff drivers employees of FedEx as a matter of law under the KWPA? "2. Drivers can acquire more than one service area from FedEx. . . . Is the answer to the preceding question different for plaintiff drivers who have more than one service area?" Craig v. FedEx Ground Package System, Inc., 686 F.3d 423, 431 (7th Cir. 2012). The Kansas Supreme Court, in an opinion dated October 3, 2014, answered "yes" to the first certified question. As applied to those drivers who are members of the certified class, i.e., those drivers who "'drive a vehicle on a full-time basis,'" the Supreme Court answered "no" to the second question, i.e., the answer to the first question remains the same. "[U]nder the undisputed facts presented, the FedEx delivery drivers are employees for purposes of the KWPA," ruled the Kansas Supreme Court. Given that the certified class only includes full- time drivers, the Supreme Court decline to opine on a driver's status with respect to any assigned service area for which he or she is not a full-time driver. A copy of Kansas Supreme Court's Opinion is available at http://bit.ly/1qfPn5Rfrom Leagle.com. Justin McFarland deputy general counsel, of Kansas Department of Labor, was on the brief for amicus curiae Lana Gordon, State of Kansas Secretary of Labor. * * * Ted Wheeler at Courthouse News Service reports that FedEx misclassified hundreds of drivers as independent contractors, the Kansas Supreme Court ruled, echoing a recent finding for California and Oregon workers. Aside from the far-reaching effects that the ruling could have on businesses that use independent contractors, there are dozens of pending cases against FedEx in the 7th Circuit that this decision shapes. FedEx has faced multiple class actions across the country by both current and former drivers who signed contracts with FedEx between 1998 and 2007. Drivers say that the shipping giant classified them as independent contractors, but forced them to buy their own uniforms and equipment, while also controlling minute details of their appearance and behavior, with specific guidelines for hygiene and body odor. In defending its classification, FedEx pointed out that drivers are allowed to set their own routes on deliveries. The Judicial Panel on Multidistrict Litigation consolidated more than 70 class actions in 2005 and transferred the matter to the U.S. District Court in South Bend, Ind. Craig v. FedEx, a 479-member class seeking relief under ERISA and the Kansas Wage Payment Act, was designated the lead case. Class members sought damages for all costs and expenses they incurred during their employment, along with overtime wages they were denied as a result of being improperly classified as independent contractors. U.S. District Judge Robert Miller ruled for FedEx and remanded the cases for separate proceedings. In 2011 the 7th Circuit affirmed the remand order, but in 2012 the federal appeals court declined to intervene on the merits of the lead case, saying the ruling turns on application of Kansas law. It certified certain questions to the Sunflower State's high court, and those justices unanimously found on October 3, 2014, that FedEx misclassified employee drivers in Kansas as independent contractors. "FedEx has established an employment relationship with its delivery drivers but dressed that relationship in independent contractor clothing," the unsigned opinion states. Citing stipulations of the Kansas Wage Payment Act, the court noted that "FedEx's control and micromanaging undermine the benefit that a driver should be able to reap from that arrangement." The court also reiterated that a driver's status as an employee is unchanged whether he covers one or more service areas. Important for the court was the fact that FedEx "carefully structured its drivers' operating agreements so that it could label the drivers as independent contractors in order to gain a competitive advantage," the justices said. The added that "this is a close case by design, not happenstance," noting that FedEx's "competitive advantage" came in part at the expense of its drivers. Federal regulations do not define the term independent contractor, thus leaving it to the court to decide if "the worker is economically dependent on the business to which he or she renders service or whether the worker, as a matter of economic fact, is in business for himself or herself." Here, FedEx drivers lacked independence to alter an operating agreement that "more closely resembles a unilaterally proffered, take-it-or-leave-it employment contract," the ruling states. The justices also emphasized that FedEx provides "manuals, handbooks, memoranda, training videos, and other means of communication that direct that manner and means of delivering packages." "In short, the plaintiff drivers are integrated into FedEx's business to the highest degree possible," the 49-page ruling states. The court noted that its ruling does not take into account the 9th Circuit's recent award of similar relief to FedEx drivers in Oregon and California. Justin McFarland, Esq., deputy general counsel, of Kansas Department of Labor, was on the brief for amicus curiae Lana Gordon, State of Kansas Secretary of Labor. The Appellants are represented by: Steve Six, Esq. STUEVE SIEGEL HANSON LLP 460 Nichols Road, Suite 200 Kansas City, MO 64112 Telephone: (816) 714-7100 E-mail: six@stuevesiegel.com - and - Beth A. Ross, Esq. Sandy N. Nathan, Esq. LEONARD CARDER, LLP 1330 Broadway, Suite 1450 Oakland, CA 94612 Telephone: (510) 272-0169 Facsimile: (510) 272-0174 E-mail: bross@leonardcarder.com - and - Robert I. Harwood, Esq. Matthew M. Houston, Esq. HARWOOD FEFFER, LLP 488 Madison Avenue, 8th Floor New York, NY 10022 Telephone: (212) 935-7400 Facsimile: (212) 753-3630 E-mail: rharwood@hfesq.com mhouston@hfesq.com - and - Susan E. Ellingstad, Esq. LOCKRIDGE GRINDAL NAUEN P.L.L.P. 100 Washington Avenue South, Suite 2200 Minneapolis, MN 55401-2159 Telephone: (612) 339-6900 Facsimile: (612) 339-0981 E-mail: seellingstad@locklaw.com - and - George A. Barton, Esq. Stacy A. Burrows, Esq. THE LAW OFFICES OF GEORGE A. BARTON, P.C. One Main Plaza 4435 Main Street, Suite 920 Kansas City, MO 64111 Telephone: (816) 300-6250 Facsimile: (816) 300-6259 The Appellee is represented by: James D. Oliver, Esq. FOULSTON SIEFKIN LLP 9225 Indian Creek Parkway, Suite 600 Overland Park, KS 66210-2000 Telephone: (913) 253-2145 Facsimile: (913) 498-2101 E-mail: joliver@foulston.com - and - Jonathan D. Hacker, Esq. O'MELVENY & MYERS LLP 1625 Eye Street, NW Washington, DC 20006 Telephone: (202) 383-5285 Facsimile: (202) 383-5414 E-mail: jhacker@omm.com - and - Robert M. Schwartz, Esq. O'MELVENY & MYERS LLP Los Angeles, California 1999 Avenue of the Stars, 7th Floor Los Angeles, CA 90067 Telephone: (310) 246-6835 Facsimile: (310) 246-6779 E-mail: rschwartz@omm.com - and - J. Timothy Eaton, Esq. SHEFSKY & FROELICH LTD. 111 East Wacker, Suite 2800 Chicago, IL 60601 Telephone: (312) 527-4000 Facsimile: (312) 527-4011 E-mail: teaton@taftlaw.com Amici Curiae American Trucking Associations, Inc. and Kansas Motor Carrier Association are represented by: Greg L. Musil, Esq. Amy E. Morgan, Esq. POLSINELLI PC 6201 College Boulevard, Suite 500 Overland Park, KS 66211 Telephone: (913) 451-8788 Facsimile: (913) 451-6205 E-mail: gmusil@polsinelli.com amorgan@polsinelli.com - and - James C. Sullivan, Esq. 900 W. 48th Place, Suite 900 Kansas City, MO 64112 Telephone: (816) 753-1000 Facsimile: (816) 374-0509 E-mail: jsullivan@polsinelli.com - and - Richard Pianka, Esq. ATA LITIGATION CENTER 950 N Glebe Rd., Suite 210 Arlington, VA 22203 Telephone: (703) 838-1889 E-mail: rpianka@trucking.org The case is Carlene M. Craig, Leo Rittenhouse, Jeff Bramlage, Lawrence Liable, and Kent Whistler, Appellants v. FedEx Ground Package System, Incorporated, Appellee, Case No. 108,526, in the Supreme Court of the State of Kansas. GALAXY BOOKS: Fails to Pay Minimum & Overtime Wages, Laborer Says ----------------------------------------------------------------- Heladio Duran-Hernandez, individually and on behalf of other employees similarly situated v. Galaxy Books and Video, Inc. and Joseph F. Annecca, individually, Case No. 1:14-cv-07838 (N.D. Ill., October 7, 2014) seeks redress for the Defendants' alleged willful violations of the Fair Labor Standards Act and the Illinois Minimum Wage Law for their failure to pay the Plaintiff and other similarly situated employees at least the Illinois mandated minimum wages for all hours worked in a workweek and overtime wages for hours worked in excess of 40 hours in a week. The Plaintiff has worked for the Defendants from September 1994 to present as general laborer doing maintenance for the Defendants. Galaxy Video & Books, Inc. is an entity doing business within the Court's judicial district. Joseph F. Annecca is the owner of Galaxy. The Plaintiff is represented by: Valentin T. Narvaez, Esq. CONSUMER LAW GROUP, LLC 6232 N. Pulaski, Suite 200 Chicago, IL 60646 Telephone: (312) 878-1302 Facsimile: (888) 270-8983 E-mail: vnarvaez@yourclg.com GARLOCK SEALING: Wants to Unseal Asbestos Plaintiffs' Files ----------------------------------------------------------- Amaris Elliott-Engel, writing for The National Law Journal, reports that Garlock Sealing Technologies LLC and two other related defendants are opposing motions to keep sealed the names of asbestos plaintiffs and the amounts of settlements they have reached with those plaintiffs. The judge presiding over the Garlock's bankruptcy proceedings has set up a process to unseal evidence that led him to make findings of alleged misrepresentation by plaintiffs. Garlock also wants to unseal questionnaires submitted by claimants in its bankruptcy case and submissions made by claimants to trusts formed out of other companies' asbestos-related bankruptcies. "A large portion of the asbestos claimants whose names appear in the estimation record have open claims and are therefore the putative creditors (and parties in interest) in this case," Garlock said. "The [U.S. Court of Appeals for the Fourth Circuit] has held that parties should be allowed to litigate anonymously only in 'extraordinary circumstances' justifying a 'rare dispensation.'" Claimants' names are routinely disclosed in asbestos tort litigation and in marketing materials disseminated by the law firms representing them, Garlock said. In a separate motion , the official committee of asbestos personal injury claimants objected to Garlock's request to seal some of the bankruptcy filings, including the major expense authorizations that memorialize the reasons Garlock settled mesothelioma cases for the amounts it did and trial evaluation forms completed by Garlock's outside counsel about cases going to trial. "Until now, the debtors have been enthusiastic advocates of disclosure, casting themselves as crusaders on the public's behalf," the committee said. "Now, without any sense of irony, the debtors maintain that their own documents -- critical pieces of the 'full story' -- should remain sealed and shielded from public scrutiny." Those documents cannot be shielded by attorney-client or work- product privilege because Garlock had its attorneys testify during the proceeding held to estimate its liability to asbestos plaintiffs about why they settled cases, the committee said. According to the committee, those "contemporaneous documents" are at odds with why Garlock says it settled its cases. Last winter, U.S. Bankruptcy Judge George Hodges of the Western District of North Carolina estimated that Garlock likely owes $125 million to asbestos plaintiffs. He rejected the plaintiffs' argument that Garlock's liability is around $1 billion to $1.3 billion after finding evidence of misrepresentation by plaintiffs' lawyers in several cases that Garlock settled in the past or in which Garlock lost jury verdicts. According to both sides, the parties agree that there should be redactions of most plaintiffs' Social Security numbers, birth dates, the identities of minors, account numbers and medical information except that related to asbestos exposure. GHIRARDELLI CHOCOLATE: Got Prelim. OK of $5.25MM Class Settlement ----------------------------------------------------------------- Nick McCann at Courthouse News Service reports that a federal judge tentatively approved a $5.25 million class action settlement that claims Ghirardelli's white chocolate chips do not contain any white chocolate. Lead plaintiff Scott Miller bought a package of Ghirardelli white chocolate chips in June 2012, and discovered the next day that they did not taste like white chocolate. "He reviewed the ingredients list on the packaging and noticed that the white chips contained no white chocolate, cocoa, or cocoa butter," according to U.S. Magistrate Judge Laurel Beeler's summary of the complaint. The class accused Ghirardelli of misrepresenting the white chocolate content in its chocolate chips, wafers, white chocolate flavor, mocha mix and frappes. It alleged violations of U.S. Food and Drug Administration regulations, and state-law infractions including false advertising, unfair competition and fraud. Miller, of Auburndale, Fla., sued in San Francisco, where Ghirardelli is based. The confectioner removed the case to Federal Court and sought dismissal, arguing that Miller lacks standing to sue over white chocolate products he did not buy. In April 2013, Beeler tossed all the allegations that did not pertain to white chocolate chips. The parties entered into mediation, and earlier this year told the court they had settled the case. Ghirardelli agreed to pay $5.25 million into a common fund to be distributed among the class and the plaintiffs' attorneys. Class members who make a claim will receive $1.50 for each purchase of the disputed white chocolate chips and 75 cents for each purchase of Ghirardelli products labeled "all natural." Judge Beeler appointed the law firm Gutride Safier for settlement purposes, and granted preliminary approval of the settlement. Evaluating the plaintiffs' case, Beeler noted that "there is a risk of continued, expensive litigation" and that the plaintiffs might find it difficult to obtain monetary relief from the confectioner because Ghirardelli claims that the disputed labels did not affect prices or sales volume. A $5,000 incentive award for the lead plaintiffs is also "within a range of reasonableness" for their work on the case, Beeler wrote. In total, the settlement proposed by the parties is "fair, adequate, and reasonable," and Beeler granted preliminary approval to it. Notice of the settlement will be published in a half-page advertisement in People Magazine, as well as in the Oakland Tribune, on Facebook, and on cooking and baking Web sites. A fairness hearing on the settlement is scheduled for Feb. 19, 2015 in Beeler's courtroom. The case is Scott Miller and Steve Leyton, individually and on behalf of themselves, the general public and those similarly situated v. Ghirardelli Chocolate Company, Case No. 3:12-cv-04936- LB, in the United States District Court for the Northern District of California, San Francisco Division. GLAXOSMITHKLINE: Can Transfer Paxil Birth-Defects Case to Ohio -------------------------------------------------------------- Saranac Hale Spencer, writing for The Legal Intelligencer, reports that GlaxoSmithKline has succeeded in getting a case filed against it in federal court in Philadelphia moved to the Southern District of Ohio. Kathryn Kiker -- who brought the suit on behalf of her son who was born with birth defects that she attributes to GSK's antidepressant drug Paxil, which she took while pregnant -- lives in Columbus, Ohio, with her son and she took the medication while she was pregnant in Hilliard, Ohio. U.S. District Judge Joel H. Slomsky of the Eastern District of Pennsylvania held that the weight of the factors that determine the suitability of transfer laid out by the U.S. Court of Appeals for the Third Circuit in its 1995 opinion in Jumara v. State Farm Insurance tips toward the Ohio venue. One of the most heavily weighted factors considers where the underlying circumstances that led to the claim arose. "In a products liability action involving a prescription drug -- such as the instant case -- the state with 'the most significant contacts and relationship to the liability issue is [the plaintiff's] home state,' where the drug was prescribed, ingested, and allegedly caused injuries," Judge Slomsky said, quoting from a 2007 opinion issued by the Eastern District of Pennsylvania in Blain v. SmithKline Beecham. GSK had argued that the whole of the case originated in Ohio, since that is where Ms. Kiker was prescribed Paxil and took Paxil. "The court does not adopt defendant's position that all of the operative facts of this case occurred in Ohio, because it is very likely that at least some decisions regarding Paxil took place at defendant's headquarters in Philadelphia," Judge Slomsky said. GSK is a Delaware corporation, but houses most of its operations in Pennsylvania. In a footnote, Judge Slomsky cited several similar cases: "In a series of opinions granting motions to transfer venue in Paxil- related products liability cases, the Honorable Timothy Savage, a judge of this court, held that 'even though some of the decisions may have taken place in the Philadelphia area, "the most significant contacts and relationship to the liability issue is [plaintiff's] home state."'" Also weighing heavily in favor of transfer was the location of witnesses who would be necessary for the case. GSK had argued that Mrs. Kiker's doctors would be critical witnesses, but they would be beyond the reach of subpoenas from Philadelphia. "These witnesses are, however, within the subpoena power of the Southern District of Ohio," Judge Slomsky said. "As such, defendant would be able to compel the live testimony of these physicians at trial in the Southern District of Ohio, but not in the Eastern District of Pennsylvania. Defendant submits that the testimony of Mrs. Kiker's prescribing physician, for instance, 'is necessary to establish why the physician decided to prescribe Paxil to Mrs. Kiker during her pregnancy with C.S. and what impact, if any, a change to the Paxil warnings would have had on that decision.'" Mrs. Kiker argued that moving the case to Ohio would only shift the burden of being unable to subpoena nonparty witnesses to her since she would want to call former GSK employees who worked on Paxil to testify. "There may be former employees of defendant who plaintiffs could compel to testify in the Eastern District of Pennsylvania but not the Southern District of Ohio. However, the reverse may also be true," Judge Slomsky said. "In addition, plaintiffs may not be able to compel the testimony of these individuals in either forum. In any case, plaintiffs have not provided any information showing that they would be prejudiced by their inability to call certain of defendant's former employees if venue is transferred to the Southern District of Ohio. As such, the court finds this argument largely speculative." The judge explained in a footnote that GSK contends that the former employees who would know about the labeling and warnings for Paxil live in various places, including the United Kingdom and North Carolina, so they wouldn't be compelled to testify in either forum. GSK had also argued that a choice-of-law analysis would dictate that Ohio law would apply to the case, so it would be preferable to have the case in front of a judge familiar with that state's law. "Specifically, defendant highlights that Ohio law recognizes a statutory cause of action in products liability cases that Pennsylvania law does not," Judge Slomsky said. "Defendant also notes that Ohio law, in certain circumstances, places limitations on the award of punitive damages against a pharmaceutical manufacturer that are not recognized under Pennsylvania law." Mrs. Kiker, however, called that argument a "red herring," Judge Slomsky said, since the court hasn't decided yet which state's law would apply. Judge Slomsky agreed. "It is therefore inappropriate, at this stage of the litigation, for the court to conclusively determine which law will apply to this case. Beyond that, the district court in either state is 'more than capable' of applying another state's law," the judge said. Altogether, of the nine Jumara factors, five weighed in favor of transferring the case, one weighed against it, and three were neutral, Judge Slomsky said. Bobby Bradford of Aylstock, Witkin, Kreis & Overholtz in Pensacola, Fla., represented Kiker and couldn't be reached for comment. Joseph O'Neil -- joneil@lavin-law.com -- of Lavin O'Neil Cedrone & DiSipio in Philadelphia represented GSK and referred a request for comment to the company. "GSK is pleased with Judge Slomsky's ruling on its motion to transfer venue finding that GSK had met its burden to show that the case should be transferred to the Southern District of Ohio, where the events giving rise to this lawsuit occurred," said Robert Perry, spokesman for GSK, in a prepared statement. GOLD COAST CAR: Fails to Pay Overtime Wages Under FLSA, Suit Says ----------------------------------------------------------------- Gustavo Hernandez-Jurado, Mario Perez-Tierrablanca, Ricardo Gutierrez, Carlos Martinez, Carlos Laguna, and Ramiro Feliciano, on behalf of themselves and all other similarly situated persons, known and unknown v. Gold Coast Car Services, Inc., and Bobby Sedghi, individually, Case No. 1:14-cv-07844 (N.D. Ill., October 7, 2014) accuses the Defendants of violating the Fair Labor Standards Act and the Illinois Minimum Wage Law in connection with their failure to pay the Plaintiffs and other similarly situated employees overtime wages for hours worked in excess of 40 hours in a week. The Plaintiffs worked for the Defendants as detailers and washers. Gold Coast Car Services, Inc. is an Illinois corporation. Bobby Sedghi is the president of the Company. The Plaintiffs are represented by: Valentin Narvaez, Esq. CONSUMER LAW GROUP, LLC 6232 N. Pulaski, Suite 200 Chicago, IL 60646 Telephone: (312) 878-1302 Facsimile: (888) 270-8983 E-mail: vnarvaez@yourclg.com HITACHI-LG DATA: Court Won't Certify Classes in ODD Antitrust MDL ----------------------------------------------------------------- Arvin Temkar, writing for Courthouse News Service, reports that a federal judge denied class certification for two groups of plaintiffs accusing major tech companies of fixing the prices of CD and DVD drives. U.S. District Judge Richard Seeborg ruled on Oct. 3 that plaintiffs did not have sufficient expert analysis to make the case for class certification. In the multidistrict lawsuit, two groups of plaintiffs -- one seeking to represent direct purchasers and another seeking to represent indirect purchasers -- argued that major companies, including Sony, LG Electronics and Toshiba, conspired to keep prices of optical disc drives from falling. They claimed that from 2004 to 2009, the tech companies colluded to create "alliances" and "supply arrangements." But Seeborg found that the plaintiff's experts did not present a viable methodology for establishing class-wide antitrust injury and damages. Seeborg also said the plaintiffs "have not proffered evidence or allegations that there were one or more instances in which the defendants' executive decision-makers entered into express agreements to fix prices across the board on an ongoing basis." However, Seeborg denied the defendants' motion to strike testimony from the plaintiff's experts. "Finding that plaintiffs fail to show the expert reports answer the critical questions is not equivalent to concluding the opinions are without reliable methods and principles, or are otherwise inadmissible," Seeborg wrote. "Within 20 days of the date of this order, the parties shall submit jointly a report as to their respective positions on how the litigation should proceed from this juncture." The case was transferred to San Francisco in 2010. The case is known as In Re Optical Disk Drive Antitrust Litigation, Case No. 3:10-md-2143 RS, in the United States District Court for the Northern District of California, San Francisco Division. HOME DEPOT: Removes "Rogers" Suit to California District Court -------------------------------------------------------------- The class action lawsuit titled Brian Rogers, et al. v. Home Depot, et al., Case No. CIVDS1410290, was removed from the Superior Court of the State of California for the County of San Bernardino to the U.S. District Court for the Central District of California. The District Court Clerk assigned Case No. 5:14-cv- 02069-JGB-SP to the proceeding. The lawsuit arises from labor-related issues. The Plaintiffs are represented by: Daren Lipinsky, Esq. BROWN AND LIPINSKY LLP 5811 Pine Avenue, Suite A Chino Hills, CA 91709 Telephone: (909) 597-2445 Facsimile: (909) 597-6199 E-mail: dlipinsky@aol.com - and - Richard E. Quintilone II, Esq. QUINTILONE AND ASSOCIATES 22974 El Toro Road, Suite 100 Lake Forest, CA 92630-4961 Telephone: (949) 458-9675 Facsimile: (949) 458-9679 E-mail: req@quintlaw.com The Defendants are represented by: Donna M. Mezias, Esq. Liz Kathryn Bertko, Esq. AKIN GUMP STRAUSS HAUER AND FELD LLP 580 California Street, Suite 1500 San Francisco, CA 94104 Telephone: (415) 765-9500 Facsimile: (415) 765-9501 E-mail: dmezias@akingump.com lbertko@akingump.com IEC ELECTRONICS: New York Court Dismisses Consolidated Stock Suit ----------------------------------------------------------------- The United States District Court for the Southern District of New York has dismissed in its entirety, without right to replead, the consolidated securities class action lawsuit originally filed June 28, 2013 against IEC Electronics Corp., its Chief Executive Officer and its Chief Financial Officer. The Company has received no indication as to whether the plaintiffs will appeal the decision. IEC Electronics Corporation is a premier provider of electronic manufacturing services ("EMS") to advanced technology companies primarily in the aerospace and defense, medical, industrial and communications sectors. IFG MEDICAL: Sued for Violating Communications Act in New Jersey ---------------------------------------------------------------- Richard Marcus, Individually and on behalf of all others similarly situated v. IFG Medical, Case No. 3:14-cv-06230-MAS-TJB (D.N.J., October 7, 2014) is brought pursuant to the Communications Act of 1934. The Plaintiff is represented by: Ross H. Schmierer, Esq. PARIS ACKERMAN & SCHMIERER LLP 103 Eisenhower Parkway Roseland, NJ 07068 Telephone: (973) 228-6667 Facsimile: (973) 629-1246 E-mail: ross@paslawfirm.com INTEGRATED TECH: Fails to Pay Back Wages Under FLSA, Suit Claims ---------------------------------------------------------------- Javier A. Negron v. Integrated Tech Group, LLC, Case No. 1:14-cv- 23687-CMA (S.D. Fla., October 6, 2014) seeks to recover back wages that the Defendant allegedly failed to pay in violation of the Fair Labor Standards Act of 1938. Integrated Tech Group is a Tennessee for-profit corporation that conducts its satellite-installation business throughout this District, with places of business in Miami-Dade County, Florida. The Company provides service, support, maintenance, troubleshooting, and installation of audio-visual, Internet, and phone services, products, and materials for Comcast (a multi- system operator). The Plaintiff is represented by: Brian H. Pollock, Esq. FAIRLAW FIRM 8603 S. Dixie Highway, Suite 408 Miami, FL 33143 Telephone: (305) 230-4884 Facsimile: (305) 230-4844 E-mail: brian@fairlawattorney.com INTRALINKS: Dist. Court Certifies Class in "Wallace" Stock Suit --------------------------------------------------------------- In an Opinion entered on Sept. 30, 2014, available at http://is.gd/QqYE8Afrom Leagle.com, District Judge Thomas P. Griesa certified the class and subclass in the case WILLIAM D. WALLACE ET AL., Plaintiffs, v. INTRALINKS ET AL., Defendants, Case No. 11-CIV. 8861 (S.D.N.Y.) Plaintiff Plumbers and Pipefitters National Pension Fund sought to certify a class of all who purchased defendant IntraLinks' stock between February 17, 2011 and November 11, 2011. Plaintiff also sought a subclass of those who purchased IntraLinks stock in the company's April 6, 2011 secondary offering. IntraLinks is a publicly traded provider of "virtual data rooms" ("VDRs"), which are software platforms that facilitate the secure exchange of information between organizations and departments. Defendant Pacific Crest Securities LLC is represented by Jonathan D Polkes, Esq. -- jonathan.polkes@weil.com-- and Eric Cullen Hawkins, Esq., eric.cullen@weil.com -- of Weil, Gotshal & Manges LLP. IXIA: Individuals Seek to Dismiss Securities Suit in California --------------------------------------------------------------- Individual defendants in a purported securities class action against Ixia are seeking to dismiss the case pending in the U.S. District Court for the Central District of California, according to the company's Sept. 15, 2014, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2014. On November 14, 2013, a purported securities class action complaint captioned Felix Santore v. Ixia, Victor Alston, Atul Bhatnagar, Thomas B. Miller, and Errol Ginsberg was filed against the company and certain of the company's current and former officers and directors in the U.S. District Court for the Central District of California. The lawsuit purports to be a class action brought on behalf of purchasers of the Company's securities during the period from April 10, 2010 through October 14, 2013. The complaint alleges that the defendants violated the Securities Exchange Act of 1934, as amended (the "Exchange Act"), by making materially false and misleading statements concerning the Company's recognition of revenues related to its warranty and software maintenance contracts and the academic credentials and employment history of the Company's former President and Chief Executive Officer, Vic Alston. The complaint also alleges that the defendants made false and misleading statements, and failed to make certain disclosures, regarding the Company's business, operations and prospects, including regarding the financial statements and internal financial controls that were the subject of the Company's April 2013 restatement of certain of its prior period financial statements. The complaint alleges that the Company lacked adequate internal financial controls and issued materially false and misleading financial statements for the fiscal years ended December 31, 2010 and 2011, and the fiscal quarters ended March 31, 2011, June 30, 2011, September 30, 2011, March 31, 2012, June 30, 2012 and September 30, 2012. The complaint, which purports to assert claims for violations of Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 promulgated thereunder, seeks, on behalf of the purported class, an unspecified amount of monetary damages, interest, fees and expenses of attorneys and experts, and other relief. On January 14, 2014, four sets of plaintiffs filed motions for appointment of lead plaintiff. On March 24, 2014, the court issued a minute order appointing Oklahoma Firefighters Pension & Retirement System and Oklahoma Law Enforcement Retirement System (the "Oklahoma Group") as lead Plaintiffs. On June 11, 2014, the Oklahoma Group filed an amended complaint, asserting claims against the same defendants under the same legal theories as were set forth in the initial complaint. The amended complaint also contains allegations that certain of the individual defendants increased their trading in the Company's stock during February, March, April and May of 2011 and during February and March of 2013, and that the defendants sought to inflate the Company's reported deferred revenues during the period of February 4, 2011 through April 3, 2013 (the "Class Period"). The amended complaint purports to be brought on behalf of purchasers of the Company's securities. On July 18, 2014, all named defendants moved to dismiss count I of the amended complaint, which purports to assert a claim against all named defendants for violation of Section 10(b) of the Exchange Act and its implementing regulation, Rule 10b-5. Additionally, the individual defendants separately filed motions to dismiss count II of the amended complaint, which purports to assert a claim for violation of Section 20(a) of the Exchange Act against only the individual defendants, as well as advancing certain additional arguments in support of dismissing count I against the individual defendants. The Oklahoma Group's omnibus opposition to the July 18, 2014 motions to dismiss was filed on August 18, 2014, while the defendants' replies were filed on September 8, 2014. A hearing on the motions to dismiss was scheduled for October 6, 2014. JACKSONVILLE, FL: "Monaco" Case May Not Proceed as Class Action --------------------------------------------------------------- Up to 2,000 employees of the City of Jacksonville filed a class action captioned SCOTT MONACO, et al., Plaintiffs, v. CITY OF JACKSONVILLE, Defendant, CASE NO. 3:09-CV-1169-J-32PDB, (M.D. Fla.), alleging that the City violated the Americans With Disabilities Act by excluding them from the City's Retirement System because of "pre existing medical conditions." At first, the City fell on its sword, agreeing to allow the case to proceed as a class action and enrolling all class members into the retirement system. Then, the City altered course and decided to contest the case, resulting in a protracted litigation. Following the City's change of heart, the case came before the Court on the parties' Cross-Motions for Summary Judgment and related filings. In a September 11, 2012 Order, the Court identified several significant and complex legal issues that required further argument. The Court directed the parties to participate in mediation, believing that they should reach a settlement. The parties mediated on December 4, 2012, and continued their settlement discussions for 10 months. However, on October 2, 2013, the mediator informed the Court that the parties were at an impasse. Accordingly, the Court reopened the case and directed the parties to rebrief the matter in light of the issues identified in the Court's prior Order and the current state of the law. The matter is now before the Court on the parties' renewed cross-motions for summary judgment. In an order entered September 30, 2014, a copy of which is available at http://bit.ly/10OtPbIfrom Leagle.com, District Judge Timothy J. Corrigan concluded that, while the City's process which resulted in excluding so many employees based on "pre-existing conditions" was, at best, haphazard, it did not violate the ADA on a class-wide basis. Thus, while some of these employees may seek to prosecute individual ADA actions against the City, the case may not proceed as a class action, ruled Judge Corrigan. Because the ADA is the only basis upon which the class has brought suit, the Court has no occasion to determine whether the City's actions violated some other local, state or federal law. However, nothing in the Order prevents the City from voluntarily offering a remedy to the employees who may have been unnecessarily excluded from the City's Retirement System, Judge Corrigan added. Lynette Clinch, Movant, represented by D. Marcus Braswell, Jr. -- mbraswell@sugarmansusskind.com -- Sugarman & Susskind, PA, Mark David Bogen -- mark@condolaw.com -- Bogen Law Group, PA, Mark S. Willis -- mwillis@srkw-law.com -- Spector, Roseman, Kodroff & Willis, PC, Robert A. Sugarman -- sugarman@sugarniansusskind.com -- Sugarman & Susskind, PA, Tanisha Nunn Gary, Gary, Williams, Parenti, Watson & Gary, PL & Willie Edward Gary, Gary, Williams, Parenti, Watson & Gary, PL. LA-Z-BOY INC: Accused of Sending Unsolicited Facsimiles in N.C. --------------------------------------------------------------- Keith Bunch Associates, LLC, a North Carolina limited liability company, individually and as the representative of a class of similarly-situated persons v. La-Z-Boy Incorporated, La-Z-Boy Global Limited, Michigan corporations, and Hydropool Inc., 2217044 Ontario Inc., Canadian corporations, Case No. 1:14-cv-00850-TDS- JLW (M.D.N.C., October 7, 2014) challenges the Defendants' alleged practice of sending unsolicited facsimiles, in violation of the Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Prevention Act of 2005. La-Z-Boy Incorporated and La-Z-Boy Global Limited are Michigan corporations headquartered in Monroe, Michigan. Hydropool Inc. and 2217044 Ontario Inc., are Canadian corporations with their principal place of business in Mississauga, in Ontario, Canada. The Plaintiff is represented by: John F. Bloss, Esq. HIGGINS BENJAMIN, PLLC 101 W. Friendly Ave., Suite 500 Greensboro, NC 27401 Telephone: (336) 273-1600 Facsimile: (336) 274-4650 E-mail: JBloss@greensborolaw.com - and - Brian J. Wanca, Esq. Ryan M. Kelly, Esq. ANDERSON + WANCA 3701 Algonquin Road, Suite 760 Rolling Meadows, IL 60008 Telephone: (847) 368-1500 Facsimile: (847) 368-1501 E-mail: bwanca@andersonwanca.com rkelly@andersonwanca.com LORDEX INC: Sued for Sending Unsolicited Fax Messages ----------------------------------------------------- Eric B. Fromer Chiropractic, Inc., a California corporation, individually and as the representative of a class of similarly- situated persons v. Lordex, Inc. and John Does 1-10, Case No. 2:14-cv-07771-RSWL-MAN (C.D. Cal., October 7, 2014) challenges the Defendants' alleged practice of sending unsolicited facsimiles, in violation of the Telephone Consumer Protection Act of 1991. Lordex, Inc., is a Texas corporation with its principal place of business in Brookshire, Texas. The identities of the Doe Defendants are not presently known. The Plaintiff is represented by: Mark J. Geragos, Esq. Ben J. Meiselas, Esq. GERAGOS & GERAGOS, A PROFESSIONAL CORPORATION LAWYERS Historic Engine Co. No. 28 644 South Figueroa Street Los Angeles, CA 90017-3411 Telephone: (213) 625-3900 Facsimile: (213) 625-1600 E-mail: mark@geragos.com meiselas@geragos.com - and - Brian J. Wanca, Esq. ANDERSON + WANCA 3701 Algonquin Road, Suite 760 Rolling Meadows, IL 60008 Telephone: (847) 368- 1500 Facsimile: (847) 368-1501 E-mail: bwanca@andersonwanca.com LOS ANGELES CLIPPERS: Attorneys Get $287K in Fees in TCPA Suit -------------------------------------------------------------- Elizabeth Warmerdam, writing for Courthouse News Service, reports that a federal judge awarded $287,000 in fees to attorneys for a class who settled with Los Angeles Clippers over text message solicitations. Lead plaintiff Ari Friedman attended a Clippers basketball game on Sept, 11, 2012. During the game, he sent a text message to a number that was broadcast by the home sports announcer, so he could have his personal message displayed on the scoreboard. In the following days, Friedman received text messages on his cell phone from an automated dialing system, though he never gave consent for such messages. Friedman filed a class action on behalf of 130,000 people who attended Clippers basketball games, claiming that the LAC Basketball Club, which owns and operates the NBA team, violated the Telephone Consumer Protection Act by sending the messages. The parties reached a settlement under which LAC Basketball Club agreed to compensate class members with either two vouchers to Clippers' basketball games or one voucher to a Clippers' game and one $20 coupon to purchase merchandise at the Clippers' store. Based on each ticket having a face value of $15 to $20, the total benefit for each class member was valued at approximately $40. A total of 751 people made valid claims, making the total redeemed value for class members $30,040. Class counsel is entitled to 25 percent of this redemption value as an attorney fee, or $7,510. Additionally, LAC Basketball Club agreed not to send any "non- confirmatory" autodialed text messages to fans' cell phones for 24 months. Class counsel is entitled to fees for obtaining this injunctive relief. Counsel submitted billing records for 438.7 hours spent on the case, which U.S. District Judge Consuelo Marshall found reasonable. Based on the hourly rates of the attorneys and paralegals, the lodestar amount for the injunctive relief is $185,841. Although class counsel requested a multiplier of 3.228 for a total fee of more than $599,900, Marshall determined that a more modest multiplier was appropriate, finding that the injunctive relief was not an "exceptional" benefit to the class to justify that sort of enhancement. A 1.5 multiplier to represent the risk counsel took in taking on the case is more appropriate, Marshall said, resulting in a total lodestar of $278,761. Adding in the coupon relief award, class counsel is entitled to $287,486 in fees. Friedman is also entitled to a $1,000 incentive fee for serving as the class representative. The case is Ari Friedman v. LAC Basketball Club, Inc., Case No. CV 13-00818 CBM (RZx), in the United States District Court for the Central District of California. MARICOPA, AZ: Court Tosses Bid to Terminate 3rd Amended Judgment ---------------------------------------------------------------- Fred Graves, Isaac Popoca, on their own behalf and on behalf of a class of all pretrial detainees in the Maricopa County Jails, Plaintiffs, v. Joseph Arpaio, Sheriff of Maricopa County; Andrew Kunasek, Mary Rose Wilcox, Denny Barney, Steve Chucri, and Clint L. Hickman, Maricopa County Supervisors, Defendants, NO. CV-77- 00479-PHX-NVW, (D. Ariz.) is class action that was brought in 1977 against the Maricopa County Sheriff and the Maricopa County Board of Supervisors alleging that the civil rights of pretrial detainees held in the Maricopa County, Arizona, jail system had been violated. It applies only to pretrial detainees, not to convicted inmates. On March 27, 1981, the parties entered into a consent decree that addressed and regulated aspects of the County jail operations as they applied to pretrial detainees. On January 10, 1995, the 1981 consent decree was superseded by an Amended Judgment entered by stipulation of the parties. On October 22, 2008, other provisions were modified or vacated, and the provisions remaining in effect, as originally written or as modified, were restated in the Second Amended Judgment. On April 24, 2012, Defendants moved to terminate certain provisions of the Second Amended Judgment. Those provisions of the Second Amended Judgment that remained in effect were restated in the Third Amended Judgment. Defendants Fulton Brock, Don Stapley, Andrew Kunasek, Max Wilson and Mary Rose Wilcox have filed a Motion to Terminate Third Amended Judgment on Behalf of Correctional Health Services. District Judge Neil V. Wake denied the Motion on September 30, 2014. A copy of Judge Wake's findings of fact and conclusions of law and order is available at http://bit.ly/1uAhZwPfrom Leagle.com. Todd Wilcox, Dr, Movant, represented by: Stephen C Clark, Esq. JONES WALDO HOLBROOK & MCDONOUGH 170 S. Main Street, Suite 1500 Salt Lake City, UT 84101-1644 Telephone: 801-534-7437 MED-1 SOLUTIONS: Violates Fair Debt Collection Act, Suit Claims --------------------------------------------------------------- Antonio Michimani and Alejandra Urquiza, individually and on behalf of all others similarly situated v. MED-1 Solutions, LLC, and MED-1 Solutions, LLC, Case No. 1:14-cv-01641-TWP-DML (S.D. Ind., October 7, 2014) accuses the Defendants of violating the Fair Debt Collection Practices Act. The Plaintiffs are represented by: Abraham Murphy, Esq. 22 E. Washington Street, Suite 610 Indianapolis, IN 46204 Telephone: (317) 248-5570 Facsimile: (317) 248-5571 E-mail: murphy@abrahammurphy.com MEDICAL ACTION: Shareholders Seek Prelim. Injunction v. Merger -------------------------------------------------------------- Plaintiffs in In re Medical Action Industries Inc. Shareholders Litigation seek preliminary injunction against a merger by Medical Action, according to the company's Sept. 15, 2014, Form 8-K filing with the U.S. Securities and Exchange Commission. As disclosed in the Definitive Proxy Statement on Schedule 14A filed with the Securities and Exchange Commission (the "SEC") by Medical Action on August 25, 2014 (the "definitive proxy statement"), two putative stockholder class action lawsuits challenging the proposed merger have been filed, both in Suffolk County Supreme Court in New York (the "court"): (i) Hilary Coyne v. Medical Action Industries Inc., et al. (Case No. 064930/2014); and (ii) Isaac Koll, et al. v. Medical Action Industries Inc., et al. (Case No. 065061/2014). Both of these cases name the Company, certain of the Company's current directors and officers, Owens & Minor, and Merger Sub as defendants. Each of the lawsuits has been brought by a purported stockholder of the Company, both individually and on behalf of a putative class consisting of public stockholders of the Company. The lawsuits generally allege, among other things, that certain of the directors and officers of the Company breached their fiduciary duties to stockholders of the Company by agreeing to a transaction with inadequate consideration and unfair terms pursuant to an inadequate process. The Hilary Coyne lawsuit alleges further that Owens & Minor and Merger Sub aided and abetted the directors and officers of the Company in the alleged breach of their fiduciary duties. The Isaac Koll lawsuit alleges further that the Company, Owens & Minor and Merger Sub aided and abetted the directors and officers of the Company in the alleged breach of their fiduciary duties. The lawsuits seek, in general, and among other things, (i) injunctive relief enjoining the transactions, (ii) in the event the proposed merger is consummated, rescission or an award of rescissory damages, (iii) an award of plaintiffs' costs, including reasonable attorneys' and experts' fees, (iv) an accounting by the defendants to plaintiffs for all damages caused by the defendants and (v) such further relief as the court deems just and proper. On July 14, 2014, the court granted the plaintiffs' motion to consolidate the Hilary Coyne lawsuit and the Isaac Koll lawsuit under the caption, In re Medical Action Industries Inc. Shareholders Litigation (the "Consolidated Action"). The court appointed Hilary Coyne and Isaac Koll as lead plaintiffs, Robbins Geller Rudman & Dowd LLP as lead counsel, and Gardy & Notis, LLP as liaison counsel. A Consolidated Amended Class Action Complaint was filed on July 21, 2014. On August 14, 2014, the court entered a scheduling order on consent providing for expedited discovery and a hearing date of September 16, 2014 for plaintiffs' motion for a preliminary injunction. The Consolidated Action generally includes the allegations from the Hilary Coyne and Isaac Koll lawsuits and alleges that Medical Action's board of directors breached their fiduciary duties in entering into the Merger Agreement by agreeing to allegedly inadequate consideration for Medical Action's stockholders, and by failing to disclose allegedly material information in Medical Action's preliminary proxy statement filed with the SEC on July 16, 2014. The lawsuit also alleges that Owens & Minor aided and abetted the directors in the alleged breaches of their fiduciary duties. On September 2, 2014, the plaintiffs filed a motion for preliminary injunction and opening brief in support thereof. On September 9, 2014, the defendants filed their papers in opposition to plaintiffs' motion. On September 12, 2014, the plaintiffs filed their reply papers in further support of their motion for preliminary injunction. In support of their motion for a preliminary injunction, plaintiffs argue, among other things, that the Company should be ordered to waive certain standstill provisions in the non-disclosure agreements entered into with Company A and Company B, notwithstanding that neither Company A nor Company B has requested such a waiver. The Company and the other defendants believe that plaintiffs' position is without merit. The court has scheduled a preliminary injunction hearing for September 16, 2014. The Company intends to continue to defend the Consolidated Action vigorously. MEDTRONIC INC: Removes "Greene" Suit to Tennessee District Court ---------------------------------------------------------------- The lawsuit titled Greene v. Medtronic, Inc., et al., Case No. CT- 004237-14, was removed from the Circuit Court of Shelby County, Tennessee, for the Thirtieth Judicial District at Memphis to the United States District Court for the Western District of Tennessee. The District Court Clerk assigned Case No. 2:14-cv- 02783-JTF-cgc to the proceeding. The Plaintiff alleges that she was injured by her physician's off- label use of Medtronic and Medtronic Sofamor Danek USA, Inc.'s Infuse Bone Graft/LT-CAGE Lumbar Tapered Fusion Device. Infuse is a Class III medical device whose design, manufacturing method, and labeling were specifically approved by the Food and Drug Administration pursuant to the agency's Premarket Approval process. The Plaintiff is represented by: Gregory J. Bubalo, Esq. Leslie M. Cronen, Esq. BUBALO GOODE SALES & BLISS PLC 9300 Shelbyville Road, Suite 215 Louisville, KY 40222 Telephone: (502) 753-1600 Facsimile: (502) 753-1601 E-mail: gbubalo@bubalolaw.com lcronen@bubalolaw.com - and - Laura Yaeger, Esq. MORGAN & MORGAN COMPLEX LITIGATION GROUP 201 N. Franklin Street, 7th Floor Tampa, FL 33602 Telephone: (813) 223-5505 Facsimile: (813) 222-4796 E-mail: LYaeger@forthepeople.com The Defendants are represented by: Leo M. Bearman, Esq. Robert F. Tom, Esq. BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC First Tennessee Building 165 Madison Avenue, Suite 2000 Memphis, TN 38103 Telephone: (901) 526-2000 Facsimile: (901) 577-0818 E-mail: lbearman@bakerdonelson.com rtom@bakerdonelson.com - and - Andrew E. Tauber, Esq. MAYER BROWN, LLP 1999 K Street, NW Washington, DC 20006 Telephone: (202) 263-3324 Facsimile: (202) 263-5324 E-mail: atauber@mayerbrown.com - and - Daniel L. Ring, Esq. MAYER BROWN, LLP 71 S. Wacker Drive Chicago, IL 60606 Telephone: (312) 701-8520 Facsimile: (312) 706-8675 E-mail: dring@mayerbrown.com - and - Sean P. Fahey, Esq. PEPPER HAMILTON, LLP 3000 Two Logan Square Eighteenth and Arch Streets Philadelphia, PA 19103-2799 Telephone: (215) 981-4000 Facsimile: (215) 981-4750 E-mail: faheys@pepperlaw.com MEDTRONIC INC: Removes "Rozoff" Suit to Tennessee District Court ---------------------------------------------------------------- The lawsuit styled Rozoff, et al. v. Medtronic, Inc., et al., Case No. CT-004236-14, was removed from the Circuit Court of Shelby County, Tennessee, for the Thirtieth Judicial District at Memphis to the United States District Court for the Western District of Tennessee. The District Court Clerk assigned Case No. 2:14-cv- 02782-JTF-cgc to the proceeding. The Plaintiffs allege that they were injured by the off-label use of Plaintiff Robert Rozoff's physician of Medtronic's Infuse(R) Bone Graft device. Infuse is a Class III medical device whose design, manufacturing method, and labeling were specifically approved by the Food and Drug Administration pursuant to the agency's Premarket Approval process. Medtronic, Inc. is a Minnesota corporation, with its principal place of business in Minneapolis, Minnesota. Medtronic Sofamor Danek USA, Inc., is a Tennessee corporation headquartered in Memphis, Tennessee. MSD is a wholly owned subsidiary of Medtronic Inc. The Plaintiffs are represented by: Gregory J. Bubalo, Esq. Leslie M. Cronen, Esq. BUBALO GOODE SALES & BLISS PLC 9300 Shelbyville Road, Suite 215 Louisville, KY 40222 Telephone: (502) 753-1600 Facsimile: (502) 753-1601 E-mail: gbubalo@bubalolaw.com lcronen@bubalolaw.com - and - Turner W. Branch, Esq. Margaret M. Branch, Esq. Adam T. Funk, Esq. BRANCH LAW FIRM 2025 Rio Grande Boulevard NW Albuquerque, NM 87104 Telephone: (505) 243-3500 Facsimile: (505) 243-3534 E-mail: tbranch@branchlawfirm.com mbranch@branchlawfirm.com afunk@branchlawfirm.com - and - Stuart L. Goldenberg, Esq. Marlene J. Goldenberg, Esq. GOLDENBERGLAW, PLLC 800 LaSalle Avenue, Suite 2150 Minneapolis, MN 55402 Telephone: (612) 333-4662 Facsimile: (612) 367-8107 E-mail: slgoldenberg@goldenberglaw.com mjgoldenberg@goldenberglaw.com The Defendants are represented by: Leo M. Bearman, Esq. Robert F. Tom, Esq. BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC First Tennessee Building 165 Madison Avenue, Suite 2000 Memphis, TN 38103 Telephone: (901) 526-2000 Facsimile: (901) 577-0818 E-mail: lbearman@bakerdonelson.com rtom@bakerdonelson.com - and - Andrew E. Tauber, Esq. MAYER BROWN, LLP 1999 K Street, NW Washington, DC 20006 Telephone: (202) 263-3324 Facsimile: (202) 263-5324 E-mail: atauber@mayerbrown.com - and - Daniel L. Ring, Esq. MAYER BROWN, LLP 71 S. Wacker Drive Chicago, IL 60606 Telephone: (312) 701-8520 Facsimile: (312) 706-8675 E-mail: dring@mayerbrown.com - and - Sean P. Fahey, Esq. PEPPER HAMILTON, LLP 3000 Two Logan Square Eighteenth and Arch Streets Philadelphia, PA 19103-2799 Telephone: (215) 981-4000 Facsimile: (215) 981-4750 E-mail: faheys@pepperlaw.com MOFFETT'S CHICKEN: Sued in Cal. Over Disabilities Act Violations ---------------------------------------------------------------- Sandra Davis v. Ralph Burton, dba Moffett's Chicken Pie Shoppe, Rosewood Investment of Arcadia, a California Limited Partnership, and Does One to Ten, inclusive, Case No. 2:14-cv-07721-JAK-MRW (C.D. Cal., October 6, 2014) is brought under the Americans with Disabilities Act of 1990. The Plaintiff is a "physically handicapped person," "physically disabled person," and a "person with a disability," as these terms are defined in the Disabilities Act. She alleges that the women's restroom stall at Moffett's Chicken is too small for a wheelchair, the clearance inside is insufficient for wheelchair maneuverability, and the door is inaccessible to wheelchair patrons. Moffett's Chicken Pie Shoppe is located in Arcadia, California. The restaurant is owned and operated by Defendants Ralph Burton, Rosewood Investment of Arcadia, and Does One to Ten. The Plaintiff is represented by: Jason K. Singleton, Esq. SINGLETON LAW GROUP 611 L Street, Suite A Eureka, CA 95501 Telephone: (707) 441-1177 Facsimile: (707) 441-1533 E-mail: jason@singletonlawgroup.com OMNIAMERICAN BANCORP: Inks MoU to Settle "McDougal" Suit in Md. --------------------------------------------------------------- Omniamerican Bancorp, Inc. entered into a memorandum of understanding (the "MOU") agreeing in principle to settle the Litigation McDougal v. OmniAmerican Bancorp, Inc., et al., Case No. 24-C-14-003920, according to the company's Sept. 16, 2014, Form 8-K filing with the U.S. Securities and Exchange Commission. As previously described in the joint proxy statement/prospectus under the heading "Litigation Relating to the Merger," a putative class action lawsuit was filed by a purported stockholder of OmniAmerican Bancorp, Inc., a Maryland corporation ("OmniAmerican"), against OmniAmerican, members of OmniAmerican's board of directors, Southside Bancshares, Inc., a Texas corporation ("Southside") and Omega Merger Sub, Inc., a Maryland corporation ("Merger Sub") and wholly owned subsidiary of Southside. The lawsuit, captioned McDougal v. OmniAmerican Bancorp, Inc., et al., Case No. 24-C-14-003920 (the "Litigation"), was filed in the Circuit Court for Baltimore City, Maryland (the "Court"), and alleges that OmniAmerican's directors breached their fiduciary duties and that OmniAmerican, Southside and Merger Sub aided and abetted those alleged breaches by, among other things, (a) failing to take steps to maximize stockholder value for OmniAmerican public stockholders; (b) failing to properly value OmniAmerican; (c) failing to protect against conflicts of interest; (d) failing to disclose material information necessary for OmniAmerican stockholders to make an informed vote on the first merger; and (e) agreeing to deal protection devices that preclude a fair sales process. Among other relief, the plaintiff sought to enjoin the mergers. After filing the Litigation and engaging in certain limited discovery, plaintiff's counsel indicated to defendants' counsel that they believed additional disclosures should be made available to the stockholders of OmniAmerican. On September 12, 2014, the defendants and the plaintiff in the Litigation entered into a memorandum of understanding (the "MOU") agreeing in principle to settle the Litigation in exchange for defendants' agreement to make certain supplemental disclosures. The MOU contemplates that the parties will prepare a definitive stipulation of settlement, which will be subject to Court approval. If approved by the Court, it is anticipated that the settlement will result in a release of the defendants from any and all claims that were or could have been asserted challenging any aspect of or otherwise relating to the mergers, the merger agreement or the disclosures made in connection therewith, and that the Litigation will be dismissed with prejudice. Pursuant to the terms of the MOU, OmniAmerican has agreed to make certain supplemental disclosures regarding the mergers in a supplement to the joint proxy statement/prospectus. The supplemental disclosures are contained in a proxy supplement filed with the Securities and Exchange Commission (the "SEC") on September 16, 2014 (the "Supplement"), which should be read in its entirety. In return, the plaintiff has agreed to the dismissal of the Litigation with prejudice and to withdraw and/or refrain from filing any and all motions seeking to enjoin the mergers. In addition, the MOU contemplates that the parties will negotiate in good faith to attempt to agree upon an amount of attorneys' fees and expenses and that plaintiff's counsel may petition the Court for an award of attorneys' fees and expenses, which if granted by the Court, would be paid by OmniAmerican or its insurers or successors. Should the parties fail to reach an agreement on attorneys' fees and expenses, the defendants may oppose the petition for an award of attorneys' fees and expenses. There can be no assurance that the parties will ultimately reach agreement on a definitive stipulation of settlement or that the Court will approve the proposed settlement, even if the parties were to enter into such stipulation of settlement. In such event, the proposed settlement as contemplated by the MOU may be terminated. The settlement will not affect the consideration to be paid to stockholders of OmniAmerican in connection with the proposed first merger or the timing of the special meeting of stockholders of OmniAmerican scheduled for Tuesday, October 14, 2014, at 10:00 a.m. local time, at OmniAmerican's headquarters located at 1320 South University Drive, Fort Worth, Texas to consider and vote upon the OmniAmerican merger proposal, among other things. NETSOL TECHNOLOGIES: Faces Rand-Heart Securities Suit in Cal. ------------------------------------------------------------- Netsol Technologies, Inc. is facing a securities lawsuit in the US District Court for the Central District of California, according to the company's Sept. 16, 2014, Form 10-K filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2014. On July 25, 2014, a Federal Securities class action lawsuit entitled Rand-Heart of New York, Inc. v. NetSol Technologies, Inc., Najeeb Ghauri, Naeem Ghauri, and Salim Ghauri was filed in Central District of California. The action generally alleges the Company violated certain federal securities laws by allegedly issuing false and misleading statements regarding the Company's product and business prospect of that product. Specifically, the complaint alleges the next generation product did not exist as of November 8, 2011 and there was no reasonable basis for stating that there was a growing interest or serious interest in the product; the product had been gaining momentum or that it had been well received. The plaintiff has alleged the class period to be between November 12, 2009 and November 8, 2013. The complaint initially alleges damages of $1,000,000. The Company has engaged counsel and believes the lawsuit to be meritless and intends to vigorously defend the action including but not limited to motions to dismiss. As of the date of this report, a class had not yet been established. PDC ENERGY: Agrees to Settle Suit Over 2010 & 2011 Acquisitions --------------------------------------------------------------- PDC Energy, Inc. announced on September 19, 2014 it has reached an agreement in principle to settle the class action pending against the Company and its wholly-owned merger subsidiary relating to the Company's acquisition of certain partnerships in 2010 and 2011 (the "Class Action"), according to the company's Sept. 19, 2014, Form 8-K filing with the U.S. Securities and Exchange Commission. Under the proposed settlement agreement, the Class Action will be dismissed with prejudice and all claims will be released. The Company's settlement obligation consists of two components: first, an up-front cash payment by PDC of approximately $11.5 million and second, a transfer of interests, primarily net profit interests, in certain Wattenberg wells to be drilled in 2015 and 2016. Beginning in 2027, plaintiffs would have the right to require that PDC repurchase such interests. The proposed settlement remains subject to the satisfaction of various conditions, including but not limited to the following: negotiation and execution of the necessary agreements, including a formal settlement agreement relating to the net profit interests; funding to plaintiffs by the Company's insurance carriers of $6 million in addition to the above Company payment; preliminary approval by the court; and final court approval following notice to members of the class. PHIBRO ANIMAL: Still Faces Injury Lawsuit by Israeli Residents -------------------------------------------------------------- Phibro Animal Health Corporation continues to face a lawsuit over alleged injury arising from industrial plants and sewage treatment facilities run by Israel's Industrial Local Council, according to the company's Sept. 18, 2014, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended June 30, 2014. The company is currently a defendant in a mass tort lawsuit commenced in 2007 by a class of approximately 100 citizens who live in the area of the Naot Hovav (formerly Ramat Hovav) Industrial Local Council in Israel, against the Industrial Council and the State of Israel, and including as additional defendants 18 manufacturers in the Industrial Council including the company's Koffolk subsidiary, based on alleged injury (including lung diseases, symptoms of cancer and miscarriages, from the Industrial Council's plants and the sewage treatment facilities run by the Industrial Council). In January 2013, the Be'er Sheva District Court rejected the plaintiffs' claims. The plaintiffs have appealed the judgment and the hearing is scheduled for September 2014. The plaintiffs initially requested damages against all defendants totaling NIS 184 million (or approximately US$54 million based on currency conversion rates as of June 30, 2014) when the lawsuit was commenced in 2007. RIEXINGER & ASSOCIATES: Sued in M.D. Florida for Violating FDCPA ---------------------------------------------------------------- Christine Adams, on behalf of herself and all others similarly situated v. Riexinger & Associates, LLC, a foreign limited liability company; and Bureaus Investment Group No. 15, LLC, a foreign limited liability company, Case No. 8:14-cv-02538-CEH-TGW (M.D. Fla., October 7, 2014) is brought for alleged violations of the Fair Debt Collection Practices Act. The Plaintiff is represented by: Aaron M. Swift, Esq. Ian Richard Leavengood, Esq. LEAVENGOOD, NASH, DAUVAL & BOYLE, PA 3900 First St. N, Suite 100 St. Petersburg, FL 33703 Telephone: (727) 327-3328 Facsimile: (727) 327-3305 E-mail: aswift@leavenlaw.com ileavengood@leavenlaw.com - and - J. Andrew Meyer, Esq. MORGAN & MORGAN, PA 201 N Franklin Street, 7th Floor Tampa, FL 33602 Telephone: (813) 223-5505 Facsimile: (813) 223-5402 E-mail: ameyer@forthepeople.com ROYAL DENTAL: Faces Suit Alleging Communications Act Violations --------------------------------------------------------------- Richard Marcus, Individually and on behalf of all others similarly situated v. Royal Dental Supply, Case No. 3:14-cv-06229-PGS-LHG (D.N.J., October 7, 2014) seeks relief under the Communications Act of 1934. The Plaintiff is represented by: Ross H. Schmierer, Esq. PARIS ACKERMAN & SCHMIERER LLP 103 Eisenhower Parkway Roseland, NJ 07068 Telephone: (973) 228-6667 Facsimile: (973) 629-1246 E-mail: ross@paslawfirm.com SAC ACQUISITION: Accused of Discriminating Against Ex-Design Lead ----------------------------------------------------------------- Joann Bateman v. SAC Acquisition LLC, Case No. 1:14-cv-08013 (S.D.N.Y., October 6, 2014) is an action for employment discrimination based on age and disability, in violation of the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the New York State Executive Law, and for unpaid wages and overtime premium pay owed to the Plaintiff and other similarly situated employees. The Plaintiff currently resides in Hawthorne, New York. She was 62 years old as of August 2013. For more than the last three decades, she has suffered from acute arthritis in various parts of her body, including her hands and arms. She was employed by the Defendant from May 2012 to October 2013 as a Design Lead. SAC Acquisition LLC is a Delaware business corporation headquartered in Stamford, Connecticut. SAC owns and operates Lovesac retail furniture stores located throughout the continental United States, including a Lovesac retail store in White Plains, New York. The Plaintiff is represented by: Robert L. Levy, Esq. Amos B. Blackman, Esq. BANTLE & LEVY LLP 817 Broadway New York, NY 10003 Telephone: (212) 228-9666 E-mail: Levy@civilrightsfirm.com Blackman@civilrightsfirm.com SAMSUNG SDI: Court Refuses to Dismiss Battery Price-Fixing Suit --------------------------------------------------------------- An antitrust suit accusing Japanese and Korean companies of conspiring to fix prices of rechargeable lithium-ion cells, the core components of batteries used in many consumer goods, may proceed, reports Arvin Temkar, citing a federal court ruling. The multidistrict lawsuit, transferred to San Francisco in 2013, accuses Samsung, Panasonic, Sanyo, Sony, Hitachi, Maxwell and other major electronics companies of price-fixing. U.S. District Judge Yvonne Rogers on Oct. 2 partially upheld the second consolidated amended complaint of a class seeking to represent municipal and regional governments. Rogers dismissed several proposed damages classes, including one for the state of Montana, but allowed California's governmental class to move forward. Rogers upheld the second consolidated amendment complaint of another class, which seeks to represent people who bought the batteries and battery products. Rogers, however, excepted City Circuit's purchases of Hitachi batteries and camcorders containing those batteries. Rogers also ruled that motions by GS Yuasa and Toshiba Corp raise issues that may warrant early summary judgment motions, after "limited, tailored discovery." The multidistrict litigation is known as In Re: Lithium Ion Batteries Antitrust Litigation, Case No. 13-MD-2420 YGR, in the U.S. District Court for the Northern District of California. A copy of the Court's Oct. 2 Omnibus Order is availble at http://tinyurl.com/q9dyo4dfrom Leagle.com. SANTANDER CONSUMER: Faces Class Suit Over Initial Public Offering ----------------------------------------------------------------- A U.S. subsidiary of Spanish banking giant Banco Santander failed to disclose in its initial public offering improper practices in its subprime car lending business that caused a drop in its stock price, shareholders claim in a class action, reports David Lee at Courthouse News Service. Lead plaintiff Karan Kumar sued Santander Consumer USA Holdings, its officers and directors and several investment banks that participated in the company's January IPO, including Citigroup Global Markets, J.P. Morgan Securities, Goldman Sachs and Morgan Stanley, on October 6 in Dallas County Court. Kumar claims the offering documents were "materially deficient." "The true facts, which were known by the defendants but were not disclosed to the investing public, were that: (i) Santander engaged in improper practices related to the company's subprime auto lending business; (ii) Santander misrepresented the quality of loans the company had underwritten; (iii) Santander misrepresented the company's underwriting standards; and (iv) Santander lacked a reasonable basis for its statements about its lucrative prospects in the subprime lending market," the 23-page complaint states. Kumar claims the public learned the truth when Santander disclosed on Aug. 7 that it received a civil subpoena from the U.S. Department of Justice. Federal prosecutors sought documents about underwriting and securitization of subprime car loans since 2007, according to the lawsuit. Shares dropped $17.95 the next day, a decline of more than 25 percent from the IPO price of $24. Based in Dallas, Santander is a consumer finance company that engages in unsecured consumer lending, including credit cards, personal loans and private student loans. It is also focuses on vehicle finance, with more than 14,000 franchised car dealers, according to the lawsuit. Santander spokeswoman Laurie W. Kight declined to comment on the lawsuit on October 7, 2014. Kumar seeks class certification and damages for violations of the Texas Securities Act. The Plaintiff is represented by: Joe Kendall, Esq. KENDALL LAW GROUP 3232 McKinney, Suite 700 Dallas, TX 75204 Telephone: (214) 744-3000 Facsimile: (214) 744-3015 E-mail: jkendall@kendalllawgroup.com - and - Brian J. Robbins, Esq. ROBBINS ARROYO LLP 600 B St., Suite 1900 San Diego, CA 92101 Telephone: (619) 525-3990 Facsimile: (800) 350-6003 E-mail: brobbins@robbinsarroyo.com SAXON MORTGAGE: "Giordano" Class Suit Survives Dismissal Motion --------------------------------------------------------------- The putative class action GIORDANO v. SAXON MORTGAGE SERVICES, INC, CIVIL ACTION NO. 12-7937 (MAS) (LHG) (D.N.J.), is one of the many cases across the country dealing with the loan modifications provided under the Home Affordable Modification Program (HAMP). Plaintiffs Stacey and Francesco Giordano allege Defendant Saxon Mortgage Services, Inc. failed to permanently modify their loan in breach of its Trial Period Plan (TPP) with the Plaintiffs. The Plaintiffs brought the action, on behalf of themselves and a Class consisting of: All New Jersey residential mortgage borrowers whose loans have been serviced by Saxon and who: (i) entered into a Trial Plan Contract with Saxon that is substantially similar to that of Plaintiffs' Trial Plan Contract and that Saxon counter- signed and returned to borrowers; (ii) made all monthly payments as required under their respective Trial Plan Contracts; and (iii) did not receive a permanent modification by the Modification Effective Date set forth in their respective Trial Plan Contracts. In a Memorandum Opinion dated Sept. 29, 2014 available at http://is.gd/V20aSifrom Leagle.com, District Judge Michael A. Shipp denied the Defendant's Motion to Dismiss the lawsuit. Defendant SAXON MORTGAGE SERVICES, INC. is represented by RICHARD A. O'HALLORAN, Esq. -- richard.ohalloran@dinsmore.com -- of Dinsmore & Shohl LLP. SPIRIT REALTY: Md. Court Approves Settlement in Merger Suit ----------------------------------------------------------- The Circuit Court for Baltimore City, Maryland approved a stipulation of settlement reached in the suit Kendrick, et al. v. Spirit Realty Capital, Inc., et al., according to the company's Sept. 16, 2014, Form 8-K filing with the U.S. Securities and Exchange Commission. In connection with the acquisition of Cole Credit Property Trust II, Inc. ("Cole II") through a transaction in which the Company's prior legal entity ("pre-Merger Spirit") merged into the Cole II legal entity (the "Merger") on July 17, 2013 and the surviving entity was renamed Spirit Realty Capital, Inc. (the "Merger") pursuant to an Agreement and Plan of Merger dated as of January 22, 2013 (the "Merger Agreement") between the Company, the Operating Partnership, Cole II and Cole Operating Partnership II, LP ("Cole Operating Partnership"), a putative class action and derivative lawsuit was filed in the Circuit Court for Baltimore City, Maryland against and purportedly on behalf of the Company captioned Kendrick, et al. v. Spirit Realty Capital, Inc., et al. The complaint named as defendants the Company, the members of the board of directors of the Company, the Operating Partnership, Cole II and the Cole Operating, and alleged that the directors of the Company breached their fiduciary duties by engaging in an unfair process leading to the Merger Agreement, failing to disclose sufficient material information for pre-merger Spirit stockholders to make an informed decision regarding whether or not to approve the Merger, agreeing to a Merger Agreement at an opportunistic and unfair price, allowing draconian and preclusive deal protection devices in the Merger Agreement, and engaging in self-interested and otherwise conflicted actions. The complaint alleged that the Operating Partnership, Cole II and the Cole Operating Partnership aided and abetted those breaches of fiduciary duty. The complaint sought a declaration that defendants had breached their fiduciary duties or aided and abetted such breaches and that the Merger Agreement was unenforceable, an order enjoining a vote on the transactions contemplated by the Merger Agreement, rescission of the transactions in the event they were consummated, imposition of a constructive trust, an award of fees and costs, including attorneys' and experts' fees and costs, and other relief. On June 4, 2013, solely to avoid the costs, risks and uncertainties inherent in litigation, the named defendants in the merger litigation signed a memorandum of understanding ("MOU") regarding a proposed settlement of all claims asserted therein. The MOU provided, among other things, that the parties would seek to enter into a stipulation of settlement providing for the release and dismissal of all asserted claims (the "Stipulation of Settlement"). The Stipulation of Settlement was filed with the court on January 22, 2014 for approval. On September 5, 2014, the court approved the Stipulation of Settlement, and all asserted claims were thereupon released and dismissed with prejudice. SYNGENTA CORP: Faces Class Suits for Ruining Corn Sales to China ---------------------------------------------------------------- Ted Wheeler and Lacey Louwagie, writing for Courthouse News Service, reports that seed giant Syngenta faces billion-dollar class actions in three states, claiming China is rejecting U.S. corn shipments because Syngenta released a genetically altered variety before the crop was approved for export to China. Syngenta "destroyed the export of U.S. corn to China and caused depressed prices for all domestic corn," Omaha-based Volnek Farms claims as lead plaintiff in a $1 billion claim in Omaha Federal Court. In Sioux City, Iowa, lead plaintiffs Cronin Inc. and Jim Ruba Jr. claim that they do not even use GM corn, but they have been hurt because of "(1) Syngenta's release of Viptera corn into the U.S. corn and corn seed supply, which has destroyed the export of U.S. corn to China and caused depressed prices for all domestic corn; (2) Syngenta's materially misleading statements relating to the approval status of MIR162 in China and the impact the lack of approval would have on the market; and (3) Syngenta's widespread contamination of the U.S. corn and corn seed supply with MIR162, which will continue to foreclose the U.S. export market to China in future years and will continue to lead to lower corn prices per bushel in the U.S. market, as a result." A third, similar class action was filed on October 3 in Springfield, Ill. Federal Court. Syngenta's MIR162 genetically modified corn also is known as Agrisure Viptera. All three class actions were filed October 3. Agrisure Viptera was released and distributed for planting in 2009, with a second generation version known as Agrisure Duracade distributed this year. MIR162 is engineered to protect against insects such as the corn borer and corn rootworm. It was approved for production for U.S. markets, but regulators in China have not yet approved it. Chinese regulators continue to reject shipments that contain traces of Syngenta's genetically altered varieties, Volnek Farms says in the Omaha complaint. Volnek cites a USDA report that estimated that 5 million tons of U.S. corn were sold to China in 2012-2013, and that "significant demand" and growth is expected in the Chinese market. But China "stopped importing U.S. corn when it detects traces of MIR162 in U.S. corn shipments" and has given no indication when or if approval will be given, Volnek says. While this specific variety of corn was planted on only about 3 percent of U.S. acres, there is no way of ensuring "that any shipments of U.S. corn will not be contaminated with trace amounts of MIR162," according to the Omaha class action. According to the Iowa class action, the release of Syngenta's GM seed led to an 85 percent drop in Chinese imports of U.S. corn. The National Grain and Feed Association estimates that Chinese rejection of U.S. corn has reduced corn prices by 11 cents per bushel, and it has asked Syngenta to stop selling the genetically modified corn varieties, according to the Iowa lawsuit. Syngenta's Web site downplays the importance of selling to China. In its "Plant with Confidence" fact sheet on Agrisure Viptera, checked October 6, 2014, Syngenta assures farmers that "the vast majority of corn produced in the U.S. is used domestically," and that in the past five years only 13 percent of U.S.-produced corn has been sold abroad, with China importing little more than 0.5 percent of it. The U.S. Department of Agriculture, however, on its Web site claims the United States exports 20 percent of its corn crop. The Iowa plaintiffs therefore accuse Syngenta of misrepresentation. The USDA acknowledges on its Web site that the United States' export relationship with China is "difficult to predict," due to China's fluctuating domestic corn production, which is tied to export subsidies and Chinese tax rebates. The United States is the world leader in corn production. According to the Omaha complaint, the corn is "harvested, gathered, commingled, consolidated, and otherwise shipped from thousands of farms" to distribution centers where it can be sold. "Syngenta's decision to bring Viptera to the market crippled the 2013-14 corn export market to China," according to the Omaha complaint. It claims that continuing cultivation of the variety would increase the damage already inflicted on farmers as a result of Syngenta's "reckless disregard" for the commodity market. Both lawsuits seek monetary damages and want Syngenta enjoined from cultivating and marketing the offending varieties of corn. This is not Syngenta's first such legal battle. In 2011, Syngenta sued Bunge North America, a grain elevator firm, for posting signs announcing it would not accept Viptera corn. Syngenta's request that Bunge remove the signs was denied in Federal Court. Other major grain handlers, such as Archer Daniels Midland and Cargill, also refuse to accept Viptera because "preventing commingling is essentially impossible," according to the Iowa complaint. Lead counsel for both plaintiffs is: Paul D. Lundberg, Esq. LUNDBERG LAW FIRM, P.L.C. 600 Fourth St., Suite 906 Sioux City, IA 51101 Telephone: (712) 234-3030 E-mail: paul@lundberglawfirm.com Hadden Farms is represented by: Adam Levitt, Esq. GRANT & EISENHOFER, P.A. 30 N. LaSalle Street Chicago, IL 60602 Telephone: (312) 214-0000 Facsimile: (312) 214-0001 E-mail: alevitt@gelaw.com TELEXFREE LLC: "Ferrari" Suit Moved to Massachusetts District Ct. ----------------------------------------------------------------- Putative Class Representative Paulo Eduardo Ferrari on behalf of himself and all others similarly situated, and Rafaela Serrano as Trustee of the TelexFree Settlement Trust, sought and obtained an order from the U.S. District Court for the District of Massachusetts granting their motion to withdraw reference to an adversary proceeding captioned Paulo Eduardo Ferrari, et al. v. TelexFree, Inc., f/k/a Common Cents Communications, Inc., et al., Case No. 14-04080, and transfer the action to the District Court. The District Court Clerk assigned Case No. 4:14-cv-40144-NMG to the proceeding. The case was filed in the U.S. Bankruptcy Court for the District of Massachusetts in the bankruptcy case known as In re Telexfree, LLC, Case No. Case No. 14-40987. Orestes Brown, Esq., at Metaxas Brown Pidgeon LLP, in Beverly, Massachusetts -- obrown@metaxasbrown.com -- informs the District Court that the action is one of seven substantively similar complaints: three adversary proceedings have been filed in the District Court and four actions have been filed in these various federal district courts: -- Ferguson et al. v. TelexElectric, LLLP et al., Civil Action No. 5:14-cv-00316-D (Eastern District of North Carolina); -- Cook, on behalf of himself and all other similarly situated v. TelexElectric, LLLP, et al., Civil Action No. 2:14-cv- 00134 (Northern District of Georgia); -- Reverend Jeremiah Githere, et al. v. TelexElectric,LLP, et al., Civil action No. 14-12825 (D. Mass.); and -- Guevara v. Merrill, et al., Civil Action No. 1:14-cv-22405 (Southern District of Florida). The complaints were filed by various plaintiffs seeking damages arising out of an alleged Ponzi pyramid scheme perpetrated by TelexFree, LLC, TelexFree, Inc., and TelexFree Financial, Inc. and related entities. All of the actions assert causes of action for, among others, fraud, intentional misrepresentation, federal and state securities violations, and violations of the Racketeering Influenced and Corrupt Organizations Act. Mr. Brown contends that all of the causes of action asserted in the lawsuit are non-core proceedings, and hence, the Bankruptcy Court is not empowered to finally adjudicate the action. Therefore, if this action remains in the Bankruptcy Court, he asserts, the District Court will be required to review and approve any findings or conclusions from the Bankruptcy Court prior to the entry of final judgment, which is not an efficient use of the Courts' nor the parties' resources. The Plaintiffs are represented by: Daniel S. Dullea, Esq. GOLDBERG & DULLEA 5 Briscoe Street Beverly, MA 01915 Telephone: (978) 922-4025 E-mail: scott@goldberganddullea.com - and - Orestes G. Brown, Esq. METAXAS BROWN PIDGEON LLP 900 Cummings Center, Suite 207T Beverly, MA 01915 Telephone: (978) 927-8000 Facsimile: (978) 922-6464 E-mail: obrown@metaxasbrown.com Defendant Global Payroll Gateway, Inc., is represented by: Monica P. Snyder, Esq. Thomas S. Vangel, Esq. MURTHA CULLINA LLP 99 High Street Boston, MA 02110 Telephone: (617) 457-4000 Facsimile: (617) 482-3868 E-mail: msnyder@murthalaw.com tvangel@murthalaw.com TEMPLETON RYE: Faces Third Class Action Over Whiskey Marketing -------------------------------------------------------------- Grant Rodgers, writing for The Des Moines Register, reports that a third class-action lawsuit has been filed against Templeton Rye, this one in Polk County District Court. The Carroll County-based whiskey company is already facing two other lawsuits filed by Chicago law firms in Illinois. Each of the lawsuits allege Templeton Rye's marketing deceived customers, including not disclosing on bottles that the spirit is made using a stock whiskey bought from an Indiana distillery. The company's owners, however, argued on Oct. 6 in a meeting with The Des Moines Register's editorial board that they can still claim locally made status, as they add their own ingredients at their Templeton facility. Those ingredients, recommended by a Kentucky flavor engineering company, help replicate the taste of the prohibition-era whiskey made by Alphonse Kerkhoff, the grandfather of co-founder Keith Kerkhoff. "Templeton Rye is very unique," Mr. Kerkhoff said on Oct. 6. "To say it's a stock whiskey made in Indiana that goes directly into the bottle is totally false. It couldn't be further from the truth." In an August interview with the Register, co-founder Scott Bush and the company's chairman disclosed that the base ingredient in Templeton Rye is a rye whiskey produced by Indiana-based MGP Ingredients. That admission led to the lawsuits, claiming violations of Iowa and Illinois consumer protection laws. In the most recent lawsuit, filed in Polk County, attorneys argue the company deceived customers with claims that the whiskey is distilled using a "prohibition-era recipe." The company's marketing materials highlight the whiskey's ties during prohibition to Chicago bootlegger Al Capone. Currently, the cap on each bottle is topped with a seal that reads "prohibition-era recipe." But, the original recipe handed down by Mr. Kerkhoff's grandfather could not legally have been called a "rye whiskey" due to its rye content being too low, Mr. Kerkhoff said. The decision to brand and market the whiskey was intended to capitalize on the national popularity of the illegally distilled rye whiskey made in Templeton during prohibition. "(Templeton Rye) was known in New York City, it was known in San Francisco," Mr. Kerkhoff said. "It had a real rich history. We wanted to stay with the name Templeton Rye . . . that's why we had to do what we did." Before the company rolled out its first bottles on store shelves in 2006, Messrs. Kerkhoff and Bush provided Louisville, Ky.-based Clarendon Flavor Engineering two samples: One of the stock MGP rye whiskey and another of the prohibition-recipe. The Kentucky company recommended a set of ingredients to achieve the prohibition-era flavor, though Mr. Kerkhoff would not disclose the ingredients in the Oct. 6 meeting. In labeling the bottle and producing the whiskey, the company also relied on approvals from the federal Alcohol and Tobacco Tax and Trade Bureau, Mr. Kerkhoff said. The bureau approved Templeton Rye's labels and twice completed audits of the company and its facilities without mentioning any concerns about consumer fraud, he said. The company is also taking steps to disclose more information about the whiskey's origins, Mr. Bush said. Though the words "prohibition era recipe" currently remain on the cap of each bottle, labels will now include that distillation is done in Indiana, he said. "We've come together and said, 'Fine, let's be the most transparent company in the whole industry then.' " TEXAS HEALTH: May Face Suits Over Ebola Exposure Risk ----------------------------------------------------- Jessica Dye, writing for Reuters, reports that potential suits against the Dallas, Texas hospital that sent home a patient later diagnosed with Ebola face long odds in the face of state medical malpractice laws. Texas tort-reform measures have made it one of the hardest places in the United States to sue over medical errors, especially those that occurred in the emergency room, according to plaintiffs' lawyers and legal experts. "It's one of the highest legal burdens of any state in the country," said Joanne Doroshow, executive director of New York Law School's Center for Justice and Democracy, who studies U.S. tort law. Although it appears no lawsuits have been filed in connection with the case, possible legal claims could be brought by Ebola patient Thomas Eric Duncan or his family, anyone he may have exposed to the disease, or hospital workers put at risk. Mr. Duncan, now in critical condition, first visited Texas Health Presbyterian Hospital's emergency room late at night on Sept. 25. Mr. Duncan told a nurse he had just returned from Liberia, where the disease is raging, but he was sent home with antibiotics. On Sunday, Sept. 28, he was admitted after his symptoms became worse, becoming the first patient to be diagnosed with Ebola in the United States. Texas Governor Rick Perry on Oct. 6 said that there had been "mistakes" handling the Ebola diagnosis, the latest in a series of officials and health experts questioning the initial response. The hospital on Oct. 3 said Mr. Duncan's travel history was "documented and available to the full care team," correcting its earlier statement that staff were not made aware of his recent travel to West Africa. A spokeswoman for the hospital, Candace White, did not immediately return a request for comment. Failure to properly diagnose a disease is a common basis for malpractice lawsuits, but each state has its own standards. To bring a civil claim in Texas over an emergency-room error, including malpractice, plaintiffs have to show staff acted in a way that was "willfully and wantonly negligent," meaning that the staff had to have consciously put Mr. Duncan or others at extreme risk by releasing him, rather just having made a mistake. Still, alarm bells about Ebola had been ringing in the media and among public health officials for several weeks before Mr. Duncan's diagnosis. In August, the U.S. Centers for Disease Control and Prevention issued guidelines for healthcare practitioners to identify signs of Ebola and warned them to be particularly vigilant about anyone who had traveled recently to West Africa. And it is possible that a communications breakdown at the hospital may have delayed the diagnosis, putting more members of the public at risk and creating a plausible claim for negligence, said Dallas plaintiffs' attorney Les Weisbrod. "In my opinion, it would be willful, or wanton, or conscious disregard to let somebody go like this," Mr. Weisbrod said. Most states use a more lenient negligence standard for emergency- room malpractice, according to lawyers and legal experts. Charles Silver, a professor at the University of Texas School of Law, co- authored a study in 2012 that showed the claim rate for malpractice in Texas had fallen an estimated 60 percent since 2003, when the tort reform began. Texas also caps non-economic damages -- which compensate for subjective injuries like pain and suffering and emotional distress, rather than past and future medical costs -- at $750,000. As a result of those and other tort-reform measures, medical malpractice lawsuits in Texas have "dried up to the point of disappearing," Mr. Silver said. U.S. health officials have identified 10 people who had definite contact with the patient, including family members and health workers, and are monitoring 38 additional people who may have been exposed. Should any of those individuals develop Ebola, the same "willful and wanton" standard would likely apply to a lawsuit they could bring against the hospital, lawyers and legal experts said. They would also face the additional hurdle of showing the hospital had a legal duty to them despite not being treated there. THIRD FEDERAL: Faces "Berry" Class Suit Alleging RICO Violations ---------------------------------------------------------------- John Berry, individually and on behalf of all others similarly situated v. Third Federal Savings and Loan Association of Cleveland and WNC Insurance Services, Inc., dba WNC First Insurance Services, Case No. 2:14-cv-14390-RLR (S.D. Fla., October 6, 2014) is brought pursuant to the Racketeer Influenced and Corrupt Organizations Act. The Plaintiff is represented by: Tod N. Aronovitz, Esq. ARONOVITZ LAW One Biscayne Tower, Suite 2630 2 South Biscayne Boulevard Miami, FL 33131 Telephone: (305) 372-2772 Facsimile: (305) 397-1886 E-mail: ta@aronovitzlaw.com THOMAS JUDE HENRY: Sued by Paralegals Over Unpaid Overtime Wages ---------------------------------------------------------------- Sarah Garza and Roberta Riley, Individually and on Behalf of all Others Similarly Situated v. Thomas Jude Henry, P.C. d/b/a Thomas J. Henry Injury Attorneys and Thomas Jude Henry, Case No. 5:14-cv- 00877 (W.D. Tex., October 7, 2014) is filed under the Fair Labor Standards Act to correct the Defendants' alleged unlawful employment practices and to recover unpaid overtime wages and other damages. The Plaintiffs were employed by the Defendants as paralegals. Thomas Jude Henry, P.C., doing business as Thomas J. Henry Injury Attorneys, is a Domestic Professional Corporation in Texas. The Company is a law firm in the business of providing professional legal services that an attorney and counselor at law, duly licensed under that state of Texas, is authorized to render. Thomas Jude Henry is an owner and officer of the Company. The Plaintiffs are represented by: Alfonso Kennard, Jr., Esq. KENNARD BLANKENSHIP ROBINSON P.C. 5433 Westheimer Road, Suite 825 Houston, TX 77056 Telephone: (713) 742-0900 Facsimile: (713) 742-0951 E-mail: alfonso.kennard@kennardlaw.com - and - Arnoldo J. Rodriguez, Esq. KENNARD BLANKENSHIP ROBINSON P.C. 85 N.E. Loop 410, Ste. 603 San Antonio, TX 78216 Telephone: (713) 742-0900 Facsimile: (713) 742-0951 E-mail: aj.rodriguez@kennardlaw.com TIBCO SOFTWARE: Being Sold for Too Little to Balboa, Suit Claims ---------------------------------------------------------------- Courthouse News Service reports that directors are selling Tibco Software too cheaply through an unfair process to Balboa Merger Sub, for $24 a share or $4 billion, shareholders claim in Delaware Chancery Court. TIBCO SOFTWARE: Investor Seek to Stop Going-Private Transaction --------------------------------------------------------------- Mike O'Connell, on behalf of himself and all others similarly situated v. Tibco Software Inc., Vivek Ranadive, Nanci Caldwell, Eric Dunn, Manuel A. Fernandez, Phil Fernandez, Peter Job, David J. West, Philip Wood, Balboa Intermediate Holdings, LLC, and Balboa Merger Sub, Inc., Case No. 1-14-CV-271601 (Cal. Super. Ct., Santa Clara Cty., October 7, 2014) is a shareholder class action brought on behalf of holders of the common stock of TIBCO to enjoin the acquisition of the publicly owned shares of TIBCO common stock in a going-private transaction by private equity firm Vista Equity Partners through its affiliate, Balboa. TIBCO is a Delaware corporation headquartered in Palo Alto, California. TIBCO is a global leader in infrastructure and business intelligence software. The Individual Defendants are directors and officers of the Company. Balboa is a Delaware limited liability company and an affiliate of Vista. Merger Sub is a Delaware corporation and a wholly owned subsidiary of Balboa. The Plaintiff is represented by: Evan J. Smith, Esq. BRODSKY & SMITH LLC 9595 Wilshire Boulevard, Suite 900 Beverly Hills, CA 90212 Telephone: (877) 534-2590 Facsimile: (310) 247-0160 E-mail: esmith@brodsky-smith.com TOYS R US: Removes "Rojas" Suit to Southern District of Florida --------------------------------------------------------------- The class action lawsuit styled Rojas v. TOYS R US-Delaware, Inc., Case No. CACE-14-018142 Div:05, was removed from the 17th Judicial Circuit in Broward County, Florida, to the U.S. District Court for the Southern District of Florida (Ft. Lauderdale). The District Court Clerk assigned Case No. 0:14-cv-62310-PCH to the proceeding. The lawsuit seeks relief under the Fair Labor Standards Act. The Plaintiff is represented by: Brody Max Shulman, Esq. Jason Saul Remer, Esq. REMER & GEORGES-PIERRE, PLLC Courthouse Tower 44 West Flagler Street, Suite 2200 Miami, FL 33130 Telephone: (305) 416-5000 Facsimile: (305) 416-5005 E-mail: bshulman@rgpattorneys.com jremer@rgpattorneys.com The Defendant is represented by: David Matthew Gobeo, II, Esq. Jenna Rinehart Rassif, Esq. JACKSON LEWIS, P.C. 2 South Biscayne Boulevard, Suite 3500 Miami, FL 33131 Telephone: (305) 577-7641 Facsimile: (305) 373-4466 E-mail: david.gobeo@jacksonlewis.com jenna.rassif@jacksonlewis.com US BUREAU OF PRISONS: Faces "Cooper" Class Suit in M.D. Florida --------------------------------------------------------------- Anthony L. Cooper, Head of Class Plaintiff's & Similarly situated all others inmates class members v. Federal Bureau of Prisons, Washington, D.C. and Director, Case No. 3:14-cv-01210-TJC-MCR (M.D. Fla., October 6, 2014) asserts claims under the Prisoner Civil Rights. The Plaintiff, an inmate at the Coleman Medium Federal Correctional Institution, in Coleman, Florida, is not represented by any law firm. WELLS FARGO: Removes "Eggers" Suit to Southern District of Iowa --------------------------------------------------------------- The class action lawsuit styled Eggers v. Wells Fargo Bank, N.A., Case No. LACL130539, was removed from the Iowa District Court in and for Polk County to the U.S. District Court for the Southern District of Iowa (Central). The District Court Clerk assigned Case No. 4:14-cv-00394-CRW-RAW to the proceeding. The lawsuit is brought under the Americans with Disabilities Act. The Plaintiff is represented by: Thomas Andrew Newkirk, Esq. Leonard E. Bates, Esq. NEWKIRK ZWAGERMAN, P.L.C. 515 East Locust, Suite 300 Des Moines, IA 50309 Telephone: (515) 883-2000 Facsimile: (515) 883-2004 E-mail: tnewkirk@newkirklaw.com lbates@newkirklaw.com The Defendant is represented by: Michael A. Giudicessi, Esq. Britt L. Teply, Esq. Emily Hildebrand Pontius, Esq. FAEGRE BAKER DANIELS, LLP 801 Grand Avenue, 33rd Floor Des Moines, IA 50309-8011 Telephone: (515) 248-9000 Facsimile: (515) 248-9010 E-mail: michael.giudicessi@faegrebd.com britt.teply@faegrebd.com emily.pontius@faegrebd.com YAMAHA MOTOR: Court Narrows Claims in "Pitre" Class Action ---------------------------------------------------------- JERRY PITRE, v. YAMAHA MOTOR CO., LTD., et al., Section: "G"(1), CIVIL ACTION NO. 13-5327, (E.D. La.) is a putative consumer class action in which Plaintiffs allege that Defendants Yamaha Motor Co., Ltd. (YM) and Yamaha Motor Corp., USA's (YMUSA) used a defective engine coating in outboard motors, causing corrosion and pitting in the exhaust systems of those motors. Pending before the Court are Yamaha Motor Corporation USA's "Motion Dismiss Plaintiffs' Complaint" and "Motion to Dismiss Plaintiffs' First Amending Class Action Complaint." In an Order and Reasons dated September 30, 2014, a copy of which is available at http://bit.ly/1rWc96Ffrom Leagle.com, District Judge Nannette Jolivette Brown denied denied-in-part and granted- in-part YMUSA's motion to dismiss the Plaintiffs' first amended class action complaint. The Motion was denied as to Plaintiffs' claims in redhibition and under the Magnuson-Moss Warranty Act, and granted as to Plaintiffs' negligence, unfair trade practices, fraudulent concealment, breach of implied warranties, breach of contract, or unjust enrichment claims. The Motion was also denied as to Plaintiffs' class allegations in redhibition and under the Magnuson-Moss Warranty Act, and granted as to Plaintiffs' class allegations under theories of negligence, unfair trade practices, fraudulent concealment, breach of implied warranties, breach of contract, or unjust enrichment. The Motion to Dismiss Plaintiffs' Complaint was denied as moot. Yamaha Motor Corporation, USA, Defendant, represented by: Andrew D. Weinstock, Esq. Joseph G. Glass, Esq. Philip G. Watson, Esq. DUPLASS, ZWAIN, BOURGEOIS, PFISTER & WEINSTOCK 3838 North Causeway Blvd. Three Lakeway Center Ste. 2900 Metairie, LA 70002 Telephone: 504-832-3700 Facsimile: 504-837-3119 YURI SHEARER: Dist. Court Tosses Motion to Dismiss GGNSC Suit ------------------------------------------------------------- The plaintiffs in GGNSC HOLDINGS, LLC, et al., Plaintiffs, v. YURI SHEARER, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF ALMA M. SHEARER, Defendant, CASE NO. 1:14-CV-00003-KGB, (E.D. Ark.) filed the lawsuit to compel Mr. Shearer, special administrator of the estate of Ms. Alma M. Shearer, to arbitrate claims brought by Mr. Shearer in the Circuit Court of Ouachita County, Arkansas. The Plaintiffs are unincorporated limited liability companies that collectively operate a nursing home in Arkansas. Mr. Shearer has filed suit in state court against GGNSC and others in a pending putative class action. Although the state court action commenced on June 3, 2011, Mr. Shearer did not appear in the state court action until September 9, 2013, when he and 44 other putative class representatives filed amended pleadings in the state court proceedings. GGNSC claims that Mr. Shearer, on behalf of the Estate of Alma Shearer, breached an arbitration agreement between GGNSC and Alma Shearer by filing suit against GGNSC in state court. GGNSC brings this diversity action pursuant to 28 U.S.C. Section 1332(a)(1) and asks the Court to enforce its arbitration agreement with Ms. Shearer under the Federal Arbitration Act, 9 U.S.C. Section 4. Before the Court is the defendant's motion to dismiss plaintiffs' complaint to compel arbitration. The Defendant moved to dismiss plaintiffs' complaint to compel arbitration pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. Alternatively, the defendant requested that the Court abstain from hearing the plaintiffs' action to compel arbitration, relying on Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976). District Judge Kristine G. Baker, in an opinion and order entered September 30, 2014, a copy of which is available at http://bit.ly/ZdjKDKfrom Leagle.com, denied Mr. Shearer's motion to dismiss pursuant to Rule 12(b)(1). Furthermore, the Court denied Mr. Shearer's motion pursuant to Colorado River abstention insofar as it requests the Court to dismiss this case. On its own motion, the Court will stay this action according to Colorado River abstention until resolution of the pending appeal of the state court decision in GGNSC Holdings, LLC, et al. v. Kathryn S. Chappel et al., CA 14-138, says Judge Baker. Yuri Shearer, Defendant, represented by Howard Gregory Campbell, Nichols & Campbell, P.A., Brian David Reddick, Reddick Moss PLLC, Deborah Truby Riordan -- deb@arklawoffice.com -- Riordan Law Firm & Gene A. Ludwig, Ludwig Law Firm, PLC. * "Proposition 46" to Lift Medical Malpractice Damages Ceiling -------------------------------------------------------------- Michael R. Blood, writing for The Associated Press, reports that voters could make California the first state to require many doctors to submit to random drug and alcohol tests, a safeguard that has long been in place for pilots, police officers and others who must stay clear-eyed on the job. While supporters are promoting that aspect of Proposition 46, it is not the initiative's most contentious provision. If approved by voters, it also would lift the ceiling on damages for pain and suffering caused by medical negligence, something that has been sought for decades by trial lawyers. Because of that, the campaign has become the most expensive in California this year. It matches the trial lawyers -- who are pushing for the cap on damages to be boosted to $1.1 million, from $250,000 -- against insurance companies, hospitals and physician groups that warn consumer costs will soar and doctors could flee to other states. "The economic stakes of the policy in question are so massive that almost any amount of political spending is worth it," said Thad Kousser, a professor of political science at the University of California, San Diego. A third provision of the initiative would require doctors to check a statewide database before prescribing painkillers and other powerful drugs in an attempt to curb pill shopping and other abuses. The proposal has become a marquee battle in a year when Californians will choose a governor and also vote on proposals ranging from funding water projects amid a record drought to how the state regulates insurance rates. Proposition 46 supporters include Democratic Sen. Barbara Boxer, who says, "Make sure impaired doctors don't treat someone you love." The long list of opponents ranges from the California Medical Association to the state Chamber of Commerce. Proponents say the proposition is about safety and point to cases in which addled doctors have harmed patients or overprescribed drugs. "I've treated thousands of patients, risked their lives, while high on prescription drugs. I was an addict," Dr. Stephen Loyd, who is now recovered, says in one video supporting the proposition. Insurance companies and doctors depict the proposition as a sugar- coated pill that's really about fattening attorneys' wallets. They say the provisions on mandatory testing were included in the proposal because it was the most popular question with test groups used by supporters to judge political appeal. In one ad, a narrator warns darkly that trial lawyers will make millions of dollars from larger jury awards with the bill paid by "the rest of us." The nonpartisan Legislative Analyst's Office has concluded that raising the cap on medical malpractice damages will increase government health care costs "from the tens of millions of dollars to several hundred million dollars annually." The higher costs could be offset to some extent by uncertain, but potentially significant, savings from prescription drug monitoring and doctor testing, the office found. Fundraising already has topped a cumulative $60 million. No one denies that doctors are vulnerable to the same addictions as the people they treat, and state records show dozens of physicians have been disciplined in recent years for abusing alcohol or drugs. Research has indicated the rates of drug and alcohol abuse for health care professionals are similar to the wider public, if not higher because of access to prescription narcotics. At issue is what should be done to identify addicts and abusers and steer them into treatment. Doctors "will never police themselves because they won't even acknowledge there is a problem," said Jamie Court, president of Consumer Watchdog, a group pushing the proposal with trial lawyers. Mandatory, random testing for doctors has been discussed for years. According to the proposal, doctors with hospital privileges would be tested randomly or when a physician is suspected of abusing alcohol or drugs or when a mistake occurs in treatment, such as surgery. Paul Phinney, a pediatrician and former president of the California Medical Association, said testing is a legitimate issue, but the proposal before voters is not the answer. Mr. Phinney and other opponents have pointed to the disclosure that the testing provision was included as a political sweetener, with the intent of making Proposition 46 more appealing. He said the initiative was designed to trick voters into supporting "something the consumer attorney lobby has wanted to do for a long time," lifting a ceiling on damages for clients that has been in place since the 1970s. The lawyers "stand to benefit, personally and financially," he added. Court, of Consumer Watchdog, said supporters recognized they would face tens of millions of dollars in ads from opponents "and need to go with what's popular" to win in November. "It was a no-brainer," he said, referring to the decision to pair the popular testing plan with the proposition. "It doesn't mean we are trying to hide something." Campaign finance records show insurance companies, doctors and pharmacists have contributed more than $57 million to the campaign, while supporters have raised a fraction of that, about $7 million through the end of September. * Three Orange County Schools Closed Over Asbestos Risk ------------------------------------------------------- The Associated Press reports that three Orange County elementary schools are being closed because asbestos was found on campus. Huntington Beach school officials announced on Oct. 8 that Hope View, Oak View and Lake View schools will be closed at least through Friday for cleaning and re-testing. Asbestos was found last summer at Oak View and Lake View during a renovation project and some parents are furious that their children were allowed to attend classes while it was being removed. Asbestos fibers were recently found again at Hope View and Lake View and they've been closed all week. Authorities say the schools had asbestos fire retardant that was installed in the 1960s and it may be deteriorating. Eight other campuses remain open but will be tested for asbestos. ********* 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. 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