/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/141015.mbx C L A S S A C T I O N R E P O R T E R Wednesday, October 15, 2014, Vol. 16, No. 205 Headlines ADOBE SYSTEMS: $10MM Loss Contingency Related to Antitrust Suit ALIMENTS PROLIMER: Recalls Aliments Prolimer Seafood Stuffing AMERICAN TRAFFIC: Washington Included in Traffic Camera Accord APPLE INC: Judge Won't Seal Docs in iTunes Class Action ARUBA NETWORKS: Court Dismissed "Mazzafero" Case BAXTER CORPORATION: Recalls Infusor & Intermate Products BAYER: Faces Civil Contempt Case Over Colon Health Marketing BECKMAN COULTER: Recalls UniCel DxC 600I Access Clinical Analyzer BERNARD L MADOFF: Judge Approves $2.45-Mil. Fraud Settlement BETTER BRANDS: Suit Seeks to Recover Unpaid OT Wages & Penalties BHP BILLITON: Appeal Filed Over Dismissal of Tutela Action BHP BILLITON: "Choles" Class Action Remains in Discovery Phase BIANCA AMOR: Recalls Various Styles of Children Sleepwear BOEHRINGER INGELHEIM: Recalls Buscopan Tablets BP PLC: Colombian Farmers Sue Over Damage Caused by Oil Pipeline CABRINHA: Recalls Kiteboarding 1X & Overdrive 1X Control Systems CANADIAN TIRE: Expands Recall to Cuisinart Electric Smoker CHAMPION TELECOM: Fails to Pay OT Hours, "Rodriguez" Suit Claims COSTCO WHOLESALE: Recalls Kirkland Signature Stuffed Salmon COSTCO WHOLESALE: Recalls About 18,000 Chair & Table Sets COUCHE-TARD: Recalls Circle K Squares Due to Undeclared Peanut COUCHE-TARD: Recalls Circle K Chocolate Chip Cookies CRACKER BARREL: Faces "Hill and Hernandez" & "Perzan et al" Cases DIRECTV LLC: Has Made Unsolicited Calls, "Oliver" Suit Claims DOLE PACKAGED: Falsely Marketed Fruit Products, "Mahan" Suit Says EBAY INC: Files Motion to Dismiss Data Breach Class Action ELEKTA INSTRUMENTS: Recalls Leksell Gamma Knife Perfexion EPL OIL: Defendants' Date to Answer Suit Indefinitely Extended FAIR TRADING: Recalls Pei Tien Konjac Brown Rice Rolls FEDEX GROUND: Disagrees With Kansas Supreme Court Ruling FISKARS CANADA: Recalls Fiskars 32-inch Bypass Lopper Shears FOODFEST INTERNATIONAL: Recalls Next by Nature Chocolate Cherries FRUITS DE MER: Recalls Madeleine Tomalley Spread HAR MASPETH: Recalls Jinga "Pan Fried Anchovies" HOFFMANN-LAROCHE: Judge Dismisses 4 Bellwether Accutane Cases HOME DEPOT: Faces "Hernandez" Suit in N.D. Ga. Over Data Breach HORIBA ABX: Recalls ABX PENTRA Magnesium RTU HOSPIRA: Recalls 1 Lot of Vancomycin Hydrochloride for Injection IKEA: Recalls Pastaalgar FullkorN and Pastaalgar Over Soy IMPAX LABORATORIES: Formally Resolved Securities Class Action INDIANA: BMV Commissioner Fails to Provide Class Action Documents INFOBLOX INC: Calif. Securities Class Action Consoldated INTEGRITY STAFFING: Court to Weigh on Suit Over Security Checks J&B EUROPEAN: Recalls Kupiec Rice Cakes With Dark Chocolate KOHL'S CORPORATION: Sued in Pennsylvania Over Violation of ADA KRAFT CANADA: Recalls Double Cheddar Shredded Natural Cheese LUMBER LIQUIDATORS: Disgruntled Investors File Lawsuit M & A INTERIOR: "Martinez" Suit Seeks to Recover Unpaid OT NAT'L FOOTBALL: Concussion Accord to Serve as Template NAT'L FOOTBALL: Settlement Opt-Out Deadline Won't Be Extended NEIMAN MARCUS: Appeals in "Pinela" and "Monjazeb" Cases Pending NEIMAN MARCUS: No Date Set for Oral Argument in Tanguilig Appeals NEIMAN MARCUS: Settlement in "Monjazeb" Case Has Final Approval NEIMAN MARCUS: Court Approves Settlement in "Newton" Case NEIMAN MARCUS: Faces "Rubenstein" Case Over Pricing Strategy NEIMAN MARCUS: 3 Cyber-Attack Class Actions Voluntarily Dismissed NEIMAN MARCUS: "Remijas" Cyber-Attack Class Action Dismissed NEW ORIENTAL EDUCATION: Final Approval Hearing Set for Nov. 14 NEW ZEALAND: Seeka Supports Kiwifruit Growers' Class Action ONE FIFTY: "Zamora" Suit Seeks to Recover Unpaid Overtime Wages OVERLAND STORAGE: Plaintiffs File Consolidated Amended Complaint PRIMARY FINANCIAL: Has Made Unsolicited Calls, "McLean" Suit Says PROTECTIVE LIFE: Court Dismisses "Edelman" Class Action PROTECTIVE LIFE: MOU Reached in Delaware Class Action RADIANT LOGISTICS: Files Answer in "Barahona" Class Action RADIOSHACK CORP: Class Action Threatens Fluctuating Workweek S & K VEGETABLES: Suit Seeks to Recover Unpaid Minimum & OT Wages SALLIE MAE: Faces "Schultz" Suit for Making Unsolicited Calls SAMSUNG ELECTRONICS: Judge Tosses Disk Drive Price-Fixing Suits SUPERIOR AIRCRAFT: "Mobley" Suit Seeks to Recover Unpaid Overtime SWS GROUP: Plaintiffs Drop Bids for Preliminary Injunction SYNGENTA CORPORATION: Sued Over Dangers Caused by Viptera Corn TEXAS HEALTH: Potential Ebola Suits May Face Legal Challenges TOTAL TENNIS: Faces "Poblete" Suit Over Failure to Pay Overtime TOYOTA MOTOR: Court Affirms $15.6-Mil. Verdict in Dealership Suit TRUNKBOW INT'L: No Hearing Date Yet on Settlement Approval TRUNKBOW INT'L: Federal Action Stayed Pending Settlement Approval VAN LOC: Faces "Valdez" Suit in Texas for Payment of OT Work VENDINI INC: $3 Mil. Settlement Gets Final Court Approval * Courts Leave Privacy Breach Victims Largely Powerless * Disgraced Class Action Lawyer Sells Home, Art Collections ********* ADOBE SYSTEMS: $10MM Loss Contingency Related to Antitrust Suit --------------------------------------------------------------- Adobe Systems Incorporated said in its Form 10-Q Report filed with the Securities and Exchange Commission on September 25, 2014, for the quarterly period ended August 29, 2014, that the Company accrued a loss contingency of $10.0 million associated with In Re High-Tech Employee Antitrust Litigation during the first quarter of fiscal 2014. Between May 4, 2011 and July 14, 2011, five putative class action lawsuits were filed in Santa Clara Superior Court and Alameda Superior Court in California. On September 12, 2011, the cases were consolidated into In Re High-Tech Employee Antitrust Litigation ("HTEAL") pending in the United States District Court for the Northern District of California, San Jose Division. In the consolidated complaint, Plaintiffs alleged that Adobe, along with Apple, Google, Intel, Intuit, Lucasfilm and Pixar, agreed not to recruit each other's employees in violation of Federal and state antitrust laws. Plaintiffs claim the alleged agreements suppressed employee compensation and deprived employees of career opportunities. Plaintiffs seek injunctive relief, monetary damages, treble damages, costs and attorneys fees. All defendants deny the allegations and that they engaged in any wrongdoing of any kind. On October 24, 2013, the court certified a class of all persons who worked in the technical, creative, and/or research and development fields on a salaried basis in the United States for one or more of the following: (a) Apple from March 2005 through December 2009; (b) Adobe from May 2005 through December 2009; (c) Google from March 2005 through December 2009; (d) Intel from March 2005 through December 2009; (e) Intuit from June 2007 through December 2009; (f) Lucasfilm from January 2005 through December 2009; or (g) Pixar from January 2005 through December 2009, excluding retail employees, corporate officers, members of the boards of directors, and senior executives of all defendants. During the second quarter of fiscal 2014, the parties reached a settlement to resolve this lawsuit, subject to the Court's approval. On August 8, 2014, the Court rejected the settlement agreement jointly submitted by the parties. Trial in this matter is currently scheduled for January 2015. We accrued a loss contingency of $10.0 million associated with this matter during the first quarter of fiscal 2014. Founded in 1982, Adobe Systems Incorporated is one of the largest and most diversified software companies in the world. Adobe Systems offers a line of products and services used by creative professionals, marketers, knowledge workers, application developers, enterprises and consumers for creating, managing, delivering, measuring, optimizing and engaging with compelling content and experiences across multiple operating systems, devices and media. ALIMENTS PROLIMER: Recalls Aliments Prolimer Seafood Stuffing ------------------------------------------------------------- Starting date: October 1, 2014 Type of communication: Recall Alert sub-type: Notification Subcategory: Extraneous Material Hazard classification: Class 2 Source of recall: Canadian Food Inspection Agency Recalling firm: Aliments Prolimer Inc. Distribution: National Extent of the product distribution: Warehouse CFIA reference number: 9285 Affected products: 11.2 kg. Aliments Prolimer Inc. Seafood Stuffing with Lot#:14119 and best before date of Meilleur Avant 10-27-2014 AMERICAN TRAFFIC: Washington Included in Traffic Camera Accord -------------------------------------------------------------- The Missourian reports that Washington is one of 27 Missouri communities included in a settlement agreement reached in a class action lawsuit over the use of red light traffic cameras. Plaintiffs in the lawsuit and American Traffic Solutions (ATS) have agreed, subject to court approval, to resolve all pending class action lawsuits on behalf of its Missouri municipal customers, according to a press release from ATS. The terms of the settlement were reached following an extensive mediation before former Missouri Court of Appeals Judge Booker T. Shaw and additional discussions following the mediation. The settlement extends to and releases claims against all 27 Missouri municipalities currently or formerly under contract with ATS. "This settlement will allow us and our customers to put these issues in the rear-view mirror," said George Hittner, ATS general counsel. "Assuming the court approves the settlement, this resolves all class action claims against ATS and any similar claims against the Missouri cities we serve, including those not previously included in the current class action lawsuits." Washington was not a defendant in any of the class action lawsuits. The city implemented red light traffic cameras in early 2008 and terminated its contract with ATM in January 2011 following a three-year "experiment" with the automated cameras. The cameras were stationed on Highway 100 at Highway A/Jefferson Street and Highway 47. "After many years of litigation, notable appellate court decisions, and the uncertainty of continued litigation, this settlement puts these civil class action claims to rest statewide and we believe offers the class members a partial refund that is fair, adequate and reasonable under the circumstances. This is especially true in light of the court rulings that significantly limit the class members' ability to recover a refund for fines that have been paid," said the plaintiffs' attorneys Ryan Keane and Russ Watters. Under the terms of the agreement, ATS and its municipal customers have not admitted to any of the allegations made by plaintiffs. Once the class is certified, participants in the class will be eligible for a partial refund of their paid violation. This settlement applies to paid violations going back to 2005. Other communities included in the settlement are: Arnold, Bellerive, Bel-Nor, Beverly Hills, Brentwood, Bridgeton, Calverton Park, Clayton, Country Club Hills, Creve Coeur, Dellwood, Ellisville, Excelsior Springs; Ferguson, Florissant, Grandview, Hazelwood, Kansas City, Moline Acres, Northwoods, Richmond Heights, St. Ann, St. John, St. Joseph, St. Louis and Sugar Creek. APPLE INC: Judge Won't Seal Docs in iTunes Class Action ------------------------------------------------------- Beth Winegarner and Kat Greene, writing for Law360, report that a California federal judge scolded Apple Inc. for its "wholly unjustified" request to seal information in the run-up to a class action trial accusing the tech titan of monopolizing the digital- music market, saying she wouldn't redact public information such as iPod prices and the names of retail sellers. U.S. District Court Judge Yvonne Gonzalez Rogers, who is presiding over the November trial, told Apple's attorneys they would need to refile all its requests to seal and redact documents, saying she wasn't going to seal Best Buy's name or any damages amounts. In an order late last month, she called Apple's request to seal damages or iPod prices "wholly unjustified" and accused Apple of overreaching. The judge also grilled Apple for seeking to redact expert analysis. "How that can be considered an Apple trade secret is beyond me," she said. "Sealing is the court's job . . . We think seriously about the fact that this is a public forum," Judge Gonzalez Rogers said. Apple, in motions to seal filed over the past year, has asked the court to seal portions of reports from the plaintiffs' damages expert, Roger Noll, as well as iPod pricing information, Apple's reseller and direct sales policies, and Apple transaction information. Many of those documents contained information marked confidential, Apple argued in its filings. David C. Kiernan of Jones Day, representing Apple, told Judge Gonzalez Rogers on Oct. 3 that the company would refile its sealing requests and would only seek to keep a few items confidential, including source code and the contact information for customers who may be part of the case. Much of the Oct. 3 hearing was devoted to planning the trial, which is slated to begin Nov. 17 and scheduled to run through late November. The judge proposed separating issues of liability and damages into separate trial phases, but neither side favored the idea, leading her to drop it. Judge Gonzalez Rogers said, however, that the parties would not be allowed to exclude potential jurors during jury selection on the grounds that they own an Apple product -- or even an iPod. "If we did that, we'd never be able to find a jury," she said. "Maybe if they hate everything about every Apple product ever produced, that might be a disqualifying factor." The consolidated antitrust case dates back to 2007 and accuses Apple of violating federal and California antitrust laws. The suit seeks unspecified damages for iPods sold from late 2006 through early 2009 based on claims that Apple's software update for the music players was designed to stop the iPods from playing music bought from Apple's competitors so Apple could raise its own prices. Apple, however, claims the updates instead were a way to improve the user experience by "ensuring an improved and seamless customer experience in using Apple products, stopping corruption of iPods caused by the use of third-party applications and encouraging product innovation," according to the joint statement. The company also claims the software updates didn't affect the price of its iPods. Late last month, Judge Gonzalez Rogers rejected Apple's bid for summary judgment in the case and refused to exclude testimony from Noll. The plaintiffs are represented by Alexandra Senya Bernay, Bonny E. Sweeney -- bonnys@rgrdlaw.com -- Carmen A. Medici -- cmedici@rgrdlaw.com -- and others at Robbins Geller Rudman & Dowd LLP. Apple is represented by Robert A. Mittelstaedt -- ramittelstaedt@jonesday.com -- Craig E. Stewart -- cestewart@jonesday.com -- David C. Kiernan -- dkiernan@jonesday.com -- and others at Jones Day; and William A. Isaacson -- wisaacson@bsfllp.com -- Karen L. Dunn -- kdunn@bsfllp.com -- Martha L. Goodman -- mgoodman@bsfllp.com -- and Meredith R. Dearborn -- mdearborn@bsfllp.com -- of Boies Schiller & Flexner LLP. The case is The Apple iPod iTunes Antitrust Litigation, case number 4:05-cv-00037, in the U.S. District Court for the Northern District of California. ARUBA NETWORKS: Court Dismissed "Mazzafero" Case ------------------------------------------------ The Court dismissed the case Mazzafero v. Aruba Networks, Inc., et al., but granted leave to amend, the Company said in its Form 10-K Report filed with the Securities and Exchange Commission on September 24, 2014, for the fiscal year ended July 31, 2014. On May 23, 2013, a purported stockholder class action lawsuit captioned Mazzafero v. Aruba Networks, Inc., et al., was filed in the United States District Court for the Northern District of California against the Company and certain of its officers. The purported class action alleges claims for violations of the federal securities laws, and seeks unspecified compensatory damages and other relief. The Company believes that it has meritorious defenses to these claims and intends to defend the litigation vigorously. On August 1, 2014, the Court dismissed the case but granted leave to amend. Based on information currently available, the Company has determined that the amount of any possible loss or range of possible loss is not reasonably estimable. Aruba Networks, Inc. is a global provider of enterprise mobility solutions. BAXTER CORPORATION: Recalls Infusor & Intermate Products -------------------------------------------------------- Starting date: September 26, 2014 Posting date: October 9, 2014 Type of communication: Medical Device Recall Subcategory: Medical Device Hazard classification: Type II Source of recall: Health Canada Issue: Medical Devices Audience: General Public, Healthcare Professionals, Hospitals Identification number: RA-41699 Recalled Products: Infusor, Intermate Baxter corporation is initiating a lot-specific recall due to complaints for particulate matter in the fluid path. Companies: Manufacturer Baxter Healthcare SA Zurich 8010 Switzerland BAYER: Faces Civil Contempt Case Over Colon Health Marketing ------------------------------------------------------------ Charles Toutant, writing for New Jersey Law Journal, reports that Bayer is being held to a "novel and erroneous" legal standard in civil contempt proceedings by the federal government over the marketing of its Phillips' Colon Health product, the company said in court papers. The U.S. Department of Justice, on behalf of the Federal Trade Commission, has accused Bayer of violating a 2007 consent order barring unsubstantiated claims about its dietary supplements. But Bayer said in court documents filed Oct. 3 that the government is wrongly penalizing it for failure to conduct randomized, placebo- controlled and double-blind human clinical trials of Phillips' Colon Health. The consent order requires only that marketing claims for Bayer supplements be supported by "competent and reliable scientific evidence," which may include animal testing, in vitro testing or extrapolation from other research, the company said. Bayer made the assertions in response to an order to show cause filed by the Justice Department on Sept. 12 in federal court in Newark. The government said Bayer's promotion of Phillips' Colon Health made claims about the product's purported benefits without having evidence to support those claims. The government said Bayer should be found in contempt because its claims that Phillips' Colon Health can "defend against" occasional constipation, diarrhea, gas and bloating implies that the product can treat those conditions, even though the company lacks competent and reliable scientific evidence to back up those claims. The government claimed the marketing of Phillips' Colon Health violated a 2007 agreement in a dispute over Bayer's One-A-Day WeightSmart. In that case, the government filed a civil complaint accusing Bayer of making unsubstantiated claims that One-A-Day WeightSmart helped prevent weight gain associated with declining metabolism in persons over the age of 30. Bayer also paid a $3.2 million civil penalty in connection with that case. The government's 2007 complaint against Bayer, in turn, alleged that the company's unsubstantiated claims about One-A-Day WeightSmart violated a 1991 order issued by the FTC against Bayer's predecessor, Miles Inc., requiring all claims about the benefits of One-A-Day vitamins to be substantiated by competent and reliable scientific evidence. In its answer to the government's motion concerning Phillips' Colon Health, the company said other FTC consent decrees with supplement makers have specifically required randomized, controlled clinical trials but no such requirement was made in the 2007 Bayer consent decree. Bayer also asserted that the government's contempt action violates the Dietary Supplement Health and Education Act of 1994, which says that dietary supplements are not drugs. Under that act, dietary supplements are not subject to the stringent clinical- trial standard applicable to drugs, and manufacturers' statements about them need only be "truthful and not misleading," Bayer said. The government's contempt action also violates the First Amendment by subjecting Bayer to heightened scrutiny even though the manufacturer's statements about the product are not false or misleading, the company said. What's more, Bayer cannot be held in contempt of the consent decree because it "substantially complies" with the order and any violation was "inadvertent," the company said. And principles of equity prohibit a finding of contempt because the action targets only Bayer even though "no one in the industry meets the government's novel standard," the company said. Bayer said in a statement that the company "strongly disagrees with the FTC's motion against the company for claims made in support of Phillips' Colon Health. The government's motion is based on an erroneous standard -- one that the government advances in this litigation but has never articulated previously to Bayer or anyone else in the dietary supplement industry. The government asserts that Bayer lacks scientific substantiation for PCH because the company has not conducted 'randomized, placebo-controlled, and double-blind' 'human clinical trials' on the 'specific product,' using the precise 'population[s]' and 'methods' chosen by the government. This is not and has never been the standard for dietary supplement claims such as those at issue. "Claims about Phillips' Colon Health are fully substantiated by numerous clinical, animal and genetic studies, among other things, and satisfy all applicable legal standards," the statement said. Bayer is represented in the case by lawyers from Sidley Austin in Washington, D.C., and Coughlin Duffy in Morristown, N.J. A spokeswoman for the Justice Department, Nicole Navas, said the department would file a response to Bayer's filing but did not have any comment. BECKMAN COULTER: Recalls UniCel DxC 600I Access Clinical Analyzer ----------------------------------------------------------------- Starting date: September 28, 2014 Posting date: October 9, 2014 Type of communication: Medical Device Recall Subcategory: Medical Device Hazard classification: Type II Source of recall: Health Canada Issue: Medical Devices Audience: General Public, Healthcare Professionals, Hospitals Identification number: RA-41711 Recalled Products: A) UniCel DxC 600I Synchron Access Clinical Analyzer B) Access 2 Immunoassay Systems- Analyzer Class III C) Access 2 Immunoassay Systems- Analyzer Class II D) Access 2 Immunoassay Systems Beckman coulter has determined that the Access 2 console PC (B23083) may experience an "MFC exception" error during normal operation. If this error occurs, the system will exit the Access 2 user interface (UI) screen and display a window that notifies the user of a "0==I tubes can count" event. If the UI is re- launched, the system will prevent access to the sample manager screen to request samples for processing and the same "MFC exception" error will occur. Companies: Manufacturer Beckman Coulter Inc. 250 S. Kraemer Blvd. Brea 92821 California United States BERNARD L MADOFF: Judge Approves $2.45-Mil. Fraud Settlement ------------------------------------------------------------ Andrew Keshner, writing for New York Law Journal, reports that in shareholder derivative suits connected to investments with Bernard L. Madoff Investment Securities LLC, a judge has signed off on a $2.45 million dollar settlement between investment funds and an auditing firm. Nassau County Supreme Court Justice Stephen Bucaria approved the settlement in Sacher v. Beacon Associates Management Corp., 5424/2009, calling the accord a "fair and reasonable consideration for the compromise of all the claims asserted" against Friedberg, Smith & Co. Jordan Group LLC and Joel and Susan Sacher were investors in Beacon Associates LLC I and Beacon Associates LLC II. The funds invested about 75 percent of assets, valued at approximately $350 million, with Madoff before the firm fell apart in December 2008. In the wake of the exposure of Madoff's Ponzi scheme, the investors filed two Nassau County suits derivatively on behalf of investment funds, against the funds' manager and its principals, the funds' investment consultant and its independent auditor, Friedberg Smith, based in Bridgeport, Conn. In February 2013, Justice Bucaria and other judges approved a $219 million global settlement that involved some of the parties in this case. Justice Bucaria's Sept. 30 settlement approval closes the Jordan Group and Sacher litigation in front of him. The funds have been made almost entirely whole from the settlements and distributions from Irving Picard, trustee for the Liquidation of Bernard Madoff Investment Securities, according to plaintiffs attorneys at Wolf Haldenstein Adler Freeman & Herz. Charles Hecht -- hecht@whafh.com -- Daniel Krasner -- krasner@whafh.com -- partners at Wolf Haldenstein and Daniel Tepper -- tepper@whafh.com -- an associate, were lead plaintiffs counsel. Stephen Jacobs -- sjacobs@lcbf.com -- of Landman Corsi Ballaine & Ford represented Friedberg, Smith & Co. BETTER BRANDS: Suit Seeks to Recover Unpaid OT Wages & Penalties ---------------------------------------------------------------- Cindy Zubak, on behalf of herself and others similarly situated v. Better Brands Distributing Company and Danny Harlow, individually, Case No. 2:14-cv-02779 (W.D. Tenn., October 6, 2014), seeks to recover unpaid overtime compensation, liquidated damages, declaratory relief and other relief under the Fair Labor Standards Act. Better Brands Distributing Company provides healthcare services for individuals who may suffer from chronic illness, recovery from surgery or hospital stay, or are simply in need of help with daily needs in the home. The Plaintiff is represented by: Christopher W. Espy, Esq. MORGAN & MORGAN 188 E. Capitol Street, Suite 777 Jackson, MS 39201 Telephone: (601) 718-2087 Facsimile: 601-862-398 E-mail: cespy@forthepeople.com BHP BILLITON: Appeal Filed Over Dismissal of Tutela Action ---------------------------------------------------------- BHP Billiton Limited said in its Form 20-F filed with the Securities and Exchange Commission on September 25, 2014, for the fiscal year ended June 30, 2014, that an appeal has been filed against the dismissal of a tutela action. The Company said that the non-government organization, Corporacion Colombia Transparente (CCT), brought three separate class actions (Popular Actions 1,029, 1,032 and 1,048) against various defendants in connection with the privatization of 50 per cent of the Cerrej¢n Zona Norte (CZN) mining complex in Colombia in 2002. The mining complex is currently owned by CZN and Carbones del Cerrej¢n Limited (CDC). Our subsidiary Billiton Investment 3 BV owns a 33 per cent share in CDC, and our subsidiaries Billiton Investment 3 BV and Billiton Investment 8 BV (BHP Billiton Shareholders) collectively own a 33.33 per cent share in CZN. CCT alleges, in part, that the defendants failed to comply with the privatisation process, and that the offer price for shares in CZN between Stages 1 and 2 of the privatisation process was not correctly adjusted for inflation. "Our share of the alleged adjustment of the CZN share price would be approximately US$4.41 million. In the alternative, CCT seeks declaration that the privatisation is null and void and forfeiture of the transfer price paid, of which our share would be approximately US$147.14 million. In both instances, CCT also seeks unquantified sanctions, including payment of stamp taxes, an award of 15 per cent of all monies recovered by the defendants, together with interest on all amounts at the maximum rate authorised by law," the Company said. Popular Action 1,048 was dismissed in December 2008. Popular Action 1,032, the CZN action, was originally dismissed on 18 February 2011, the Court determining that there were no irregularities in the privatisation of the Cerrej¢n Zona Norte mining complex. CCT's request for a reconsideration of the judgment was denied. In March 2011, CCT filed an appeal against the dismissal. This appeal was dismissed in February 2013 and the plaintiff filed for a revision of the judgment. Revision of judgment is a new avenue of review introduced by the Columbian Administrative Code that applies to the last instance judgments and may be used when the plaintiff believes certain issues were not considered in the decision. In January 2014, the request for revision was denied and the action is therefore concluded. Popular Action 1,029 was dismissed in December 2008. Despite the fact that this dismissal was final, the plaintiff filed a tutela action at the Council of State challenging the dismissal and obtained from the Council of State a decision ordering the first instance judge to continue with the action. Neither CZN nor BHP Billiton shareholders were informed of this action. In August 2013, at the request of the defendants, the Council of State annulled the steps that had been taken in the proceeding and the defendants filed a reply to the action. The tutela action was then subsequently dismissed; however, an appeal has been filed against the dismissal. BHP Billiton is among the world's top producers of major commodities, including iron ore, metallurgical and energy coal, conventional and unconventional oil and gas, copper, aluminium, manganese, uranium, nickel and silver. BHP BILLITON: "Choles" Class Action Remains in Discovery Phase -------------------------------------------------------------- BHP Billiton Limited said in its Form 20-F filed with the Securities and Exchange Commission on September 25, 2014, for the fiscal year ended June 30, 2014, that a class action arising out of the privatization of the Cerrej¢n Zona Norte (CZN) mining complex has been brought by Mr Mart¡n Nicol s Barros Choles, against various defendants including Carbones del Cerrej¢n Limited (CDC). Mr Choles claims that the transfer of rights by CDC to CZN was ineffective because it only involved a transfer of shares and not the transfer of the underlying rights in the properties and assets used in the CZN mining complex. Consequently, he is seeking orders that CDC pays for the use and lease of the properties and assets until November 2009, and that from that date the properties and assets of the Cerrej¢n project revert to the State. This action remains in the discovery phase. BHP Billiton is among the world's top producers of major commodities, including iron ore, metallurgical and energy coal, conventional and unconventional oil and gas, copper, aluminium, manganese, uranium, nickel and silver. BIANCA AMOR: Recalls Various Styles of Children Sleepwear --------------------------------------------------------- Starting date: September 28, 2014 Starting date: September 30, 2014 Posting date: September 30, 2014 Type of communication: Consumer Product Recall Subcategory: Children's Products, Clothing and Accessories Source of recall: Health Canada Issue: Flammability Hazard Audience: General Public Identification number: RA-41597 Affected products: Various Styles of Children's Sleepwear The recall involves various styles and brands of 100% cotton children's sleepwear sold at Bianca Amor's Liquidation Supercentres. All colours and patterns of the sleepwear are included in this recall. The recalled sleepwear does not meet the design and flammability requirements for children's sleepwear under Canadian law. Loose-fitting children's sleepwear can contact ignition sources such as stove elements, candles, and matches more readily than tight-fitting sleepwear, and once ignited will burn rapidly, potentially resulting in severe burns to large areas of the child's body. For this reason, cotton is not permitted in loose- fitting sleepwear. Neither Health Canada nor Bianca Amor's has received reports of consumer incidents or injuries related to the use of these sleepwear items. For information on what makes safe sleepwear, visit the Healthy Canadians children's sleepwear page. Approximately 2,382 of the recalled children's sleepwear items were sold from Bianca Amor's Liquidation Supercentre locations in British Columbia, Alberta, Saskatchewan and Manitoba. The recalled items were manufactured in China and sold from Jan. 2014 to Sept. 2014. Companies: Importer Bianca Amor's Calgary Alberta Canada Consumers are advised to stop using the recalled sleepwear and can return the recalled product(s) to the Bianca Amor's store where it was purchased to receive a store credit. Otherwise, the recalled products should be disposed of in regular household garbage. BOEHRINGER INGELHEIM: Recalls Buscopan Tablets ---------------------------------------------- Starting date: October 2, 2014 Posting date: October 10, 2014 Type of communication: Drug Recall Subcategory: Drugs Hazard classification: Type II Source of recall: Health Canada Issue: Product Safety Audience: General Public, Healthcare Professionals, Hospitals Identification number: RA-41757 Recalled products: Buscopan Tablets 10 mg Out of specification dissolution result obtained during routine stability studies. Companies: Recalling Firm Boehringer Ingelheim (Canada) Ltd 5180 South Service Road Burlington L7L 5H4 Ontario Canada Marketing Authorization Holder Boehringer Ingelheim (Canada) Ltd 5180 South Service Road Burlington L7L 5H4 Ontario Canada BP PLC: Colombian Farmers Sue Over Damage Caused by Oil Pipeline ---------------------------------------------------------------- Jane Croft, writing for The Financial Times, reports that BP is being sued for environmental damage that Colombian farmers allege the oil group caused to their land by building a pipeline. The case, which opens at the High Court last week, is being brought by 73 peasant farmers known as "campesinos", who are seeking about GBP18 million in compensation from the oil group. They claim that the British company Equion Energia (formerly BP Exploration (Colombia) Limited) negligently managed the construction of the Ocensa oil pipeline in Colombia during the mid-1990s -- causing serious damage to their land. The case is being vigorously defended by BP. The trial is likely to be one of the largest environmental legal cases in recent years. It also comes weeks after a US court ruled that BP acted with gross negligence in the 2010 Deepwater Horizon disaster. A number of the Colombian farmers are due to travel to London to give evidence in the case that was first filed in 2008 and is due to last three months. The Ocensa oil pipeline was a project undertaken by BP Exploration (Colombia) Limited (BPXC) in the mid-1990s in partnership with Colombia's national oil company and four other multinational companies after BP discovered more crude oil in the Cusiana- Cupiagua oilfields. BPXC entered into contracts with the farmers to lay the pipeline through their private land. The farmers, who are being represented by law firm Leigh Day, allege that the construction of the pipeline caused severe soil erosion, reduced vegetation coverage and blocked up or reduced vital water sources, thereby significantly reducing the productivity of their farms. They claim that BPXC played a key part in the design, implementation and management of the project and the construction process and that it is therefore liable for the damage to their land. The claims will be argued with reference to contractual and extra-contractual liability under Colombian law. In 2010 BPXC changed its name to Equion after BP sold off its shares in BPXC. Shubhaa Srinivasan, partner at Leigh Day representing the farmers, said: "At last the farmers are going to have a chance to tell their stories and to have their case decided." BP said in a statement it was confident in its legal position and was defending the case vigorously. "The Ocensa pipeline project in Colombia involved significant steps being taken at the time of construction to engage with local communities, make appropriate compensation payments and ensure that the land the pipeline traversed suffered no material damage," it said. "BP believes that these measures were effective and that the construction of the pipeline was carried out to a high standard." Leigh Day is also representing a number of Nigerian farmers and fishermen who are suing fellow oil company Shell in relation to oil spills in the Bodo Delta in 2008 and 2009. About 15,000 villagers in the Bodo community -- who are mostly subsistence fishermen and farmers -- are seeking compensation for two oil spills in the Niger Delta. The spills, in late 2008, were caused by failures in the Bomu-Bonny pipeline. Shell admitted liability but continues to dispute the amount of oil spilled and the extent of the environmental damage caused. The case is due to come to trial next year. CABRINHA: Recalls Kiteboarding 1X & Overdrive 1X Control Systems ---------------------------------------------------------------- Starting date: October 8, 2014 Posting date: October 8, 2014 Type of communication: Consumer Product Recall Subcategory: Sports/Fitness Source of recall: Health Canada Issue: Physical Hazard Audience: General Public Identification number: RA-41751 Affected products: Cabrinha Kiteboarding 1X and Overdrive 1X Control Systems The recall involves the Cabrinha Kiteboarding 1X and Overdrive 1X control systems. These control systems are both comprised of: -- a light-weight control bar to control and depower the kite; -- a set of flying lines; and -- a harness loop/quick release (QR) mechanism Both products have an orange and black EVA grip and a new QuickLoopTM harness loop/QR. The RecoilTM spring mounted along the depower mainline is used to maintain the position of the trim adjusters. The Recoil spring on the control mechanism can jam, leading to a loss of control, which poses a risk of injury. In the United States, Cabrinha has received two reports of the spring jamming. No injuries were reported. No injuries were reported from Canada. Health Canada has not received any reports of consumer incidents or injuries related to the use of this product. Approximately 109 units were sold at specialty water sports stores across Canada. The recalled products were manufactured in China and sold from July 15, 2014 to August 26, 2014. Companies: Manufacturer Neil Pryde Ltd Hong Kong China Importer Adventure Sports Inc dba Pryde Group Americas Miami Florida United States Consumer should immediately stop using the recalled control system and contact a Cabrinha authorized dealer to obtain a free replacement binding. A list of authorized dealers can be found at Cabrinha's website. CANADIAN TIRE: Expands Recall to Cuisinart Electric Smoker ---------------------------------------------------------- Starting date: October 6, 2014 Posting date: October 6, 2014 Type of communication: Consumer Product Recall Subcategory: Household Items Source of recall: Health Canada Issue: Improper Safety Mechanisms, Product Safety Audience: General Public Identification number: RA-41683 Affected products: Cuisinart Electric Smoker The voluntary recall involves all units of the Cuisinart electric smoker identified by product number 85-1153. All batch codes are affected. The electric smokers are black with the name "Cuisinart" printed on the stainless steel door. The product has five cooking racks and a thermostat to control the temperature. The affected Cuisinart electric smokers are being recalled as a precautionary measure due to safety concerns that gas may build up within the unit causing the door on the smoker to open while the unit is in use. Canadian Tire has received ten reports of the door on the smoker opening while in use. No injuries have been reported. Health Canada has received two reports of consumer incidents related to the use of these electric smokers. No injuries have been reported. Approximately 9,238 units of the Cuisinart electric smokers were sold at Canadian Tire stores across Canada. The recalled Cuisinart electric smokers were manufactured in China and sold between Feb. 2012 and Sept. 2014. Companies: Importer Canadian Tire Corporation, Limited Toronto Ontario Canada Consumers should immediately stop using the affected Cuisinart electric smokers and return them to their local Canadian Tire store for a refund. CHAMPION TELECOM: Fails to Pay OT Hours, "Rodriguez" Suit Claims ---------------------------------------------------------------- Norwin Rodriguez and Class Plaintiffs v. Eddy Dominguez, Andrew Scott, Champion Telecom Inc., and Does 1 Through 10, Case No. 3:14-cv-04467 (N.D. Cal., October 6, 2014), is brought against the Defendants for failure to pay overtime wages for work in excess of 40 hours per work week. The Defendants are engaged in the business of building and installing cell phone towers in the western United States. The Plaintiff is represented by: James Dal Bon, Esq. LAW OFFICES OF JAMES DAL BON 95 South Market Street, 3rd Floor San Jose, CA 95113 Telephone: (408) 977-7710 E-mail: jdb@wagedefenders.com COSTCO WHOLESALE: Recalls Kirkland Signature Stuffed Salmon ----------------------------------------------------------- Starting date: October 1, 2014 Type of communication: Recall Alert sub-type: Notification Subcategory: Extraneous Material Hazard classification: Class 2 Source of recall: Canadian Food Inspection Agency Recalling firm: Costco Wholesale Canada Inc. Distribution: National Extent of the product distribution: Retail CFIA reference number: 9301 Affected products: Kirkland Signature Stuffed Salmon purchased between June 10, 2014 to Sept. 29, 2014 COSTCO WHOLESALE: Recalls About 18,000 Chair & Table Sets --------------------------------------------------------- The Associated Press reports that nearly 300,000 shears that can break are among this week's recalled consumer products. Others include potentially faulty helmets and hanging lamps. SHEARS DETAILS: Fiskars 32-Inch Bypass Lopper Shears with model number 6954. They were sold at The Home Depot Inc. stores nationwide and online at HomeDepot.com from May 2011 through June 2014 for about $40. WHY: The handles can break when cutting branches and cause injuries. INCIDENTS: 11 reports of the handles breaking, which caused bruising and cuts to some users. Some needed stitches on their head and face. HOW MANY: About 277,000. FOR MORE: Call Friskars at 855-544-0151 or go to www2.fiskars.com and click on product notifications on the bottom of the page. CHAIR AND TABLE SET DETAILS: A three-piece cafe set sold at Costco Wholesale Stores. The set includes two aluminum swivel chairs and a rectangular table with a tabletop made from porcelain tile. They were sold from December 2013 to May 2014 for about $400. WHY: The recalled chairs can break due to a missing metal washer plate and might cause a customer to fall. INCIDENTS: None reported. HOW MANY: About 18,000. FOR MORE: Call Dimension, the distributor, at 800-598-6532 or go online at www.costco.com BED BUG HEAT TREATMENT SYSTEMS DETAILS: ThermalStrike Expedition bed bug heat treatment system. Customers use them by placing items inside to kill bed bugs. They were sold at Bedbug Central, Bedbug Supply, Protect-a-Bed, Univar and other pest control sellers nationwide between December 2011 and May 2014 for between $189 and $199. They were also sold online at Amazon.com. WHY: A flexible, electrical conducting strip at the top of the device can break, posing a fire risk. INCIDENTS: Four reports of an electrical strip breaking. There is one report of a fire and three reports of units sparking. No injuries were reported. HOW MANY: About 1,700. FOR MORE: Call PAB Two at 866-470-1755 or go online at www.thermalstrike.com ALL-TERRAIN VEHICLES DETAILS: Kymco MXU 700 ATVs that came in black, camouflage, gold, green, red and silver. The recall is for model years 2013, 2014 and 2015. They were sold at Kymco dealers nationwide from April 2013 to August 2014 for about $9,000. WHY: The fuel cap may not vent properly, causing the fuel to heat up and pressure to build up in the tank and may cause it to rupture and burn the rider or start a fire. INCIDENTS: None reported. HOW MANY: About 540. FOR MORE: Call Kymco at 888-235-3417 or go online www.kymcousa.com HANGING LAMPS DETAILS: Hanging lamps that were sold at Rejuvenation stores nationwide from July to September for between $250 and $325. WHY: The cord holding the pendant can fail, causing it to fall from the ceiling. INCIDENTS: One report of the pendant falling. No injuries have been reported. HOW MANY: About 85. FOR MORE: Call Rejuvenation at 888-401-1900 or go online at www.rejuvenation.com BICYCLE HELMETS DETAILS: Louis Garneau P-09 aerodynamic bicycle helmets with model number 1405362. They were sold at bicycle dealers nationwide and online at Louisgarneau.com from January through September for between $280 and $350. WHY: The helmet may not protect the wearer from impact in cold weather. INCIDENTS: None reported. HOW MANY: About 1,180. FOR MORE: Call Louis Garneau USA at 800-448-1984 or go online at www.louisgarneau.com/us-en/ COUCHE-TARD: Recalls Circle K Squares Due to Undeclared Peanut -------------------------------------------------------------- Starting date: September 26, 2014 Type of communication: Recall Alert sub-type: Food Recall Warning (Allergen) Subcategory: Allergen - Peanut Hazard classification: Class 3 Source of recall: Canadian Food Inspection Agency Recalling firm: Couche-Tard Inc. Distribution: New Brunswick, Nova Scotia, Newfoundland and Labrador Extent of the product distribution: Retail CFIA reference number: 9286 Affected products: Circle K Chocolate Chip Confetti Squares and Confetti Square Butterscotch with all codes where peanut is not declared on the label COUCHE-TARD: Recalls Circle K Chocolate Chip Cookies ---------------------------------------------------- Starting date: October 3, 2014 Type of communication: Recall Alert sub-type: Food Recall Warning (Allergen) Subcategory: Allergen - Peanut Hazard classification: Class 3 Source of recall: Canadian Food Inspection Agency Recalling firm: Couche-Tard Inc. Distribution: New Brunswick, Nova Scotia, Newfoundland and Labrador Extent of the product distribution: Retail CFIA reference number: 9309 Affected products: Circle K Confetti Square Chocolate Chip Cookies with all codes where peanut is not declared on the label CRACKER BARREL: Faces "Hill and Hernandez" & "Perzan et al" Cases ----------------------------------------------------------------- Cracker Barrel Old Country Store, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on September 25, 2014, for the fiscal year ended August 1, 2014, a putative collective action under the Fair Labor Standards Act ("FLSA") was filed on April 11, 2014, in the United States District Court for the Northern District of New York, Proper v. Cracker Barrel Old Country Store, Inc., in which the named plaintiffs are challenging the Company's classification of associate managers as being exempt from the minimum wage and overtime requirements. Two other putative collective action suits alleging claims under the FLSA, Hill and Hernandez v. Cracker Barrel and Perzan et al. v. Cracker Barrel, were filed in the United States District Courts for the Middle District of Florida in August 2014 and for the District of Massachusetts in September 2014, respectively. The plaintiffs in these lawsuits seek an unspecified amount of alleged back wages, liquidated damages, and attorneys' fees. Unlike a class action, a collective action requires potential class members to "opt in" rather than "opt out". If any of these putative collective actions is conditionally certified, the Company would have an opportunity to seek to have the class de- certified and/or seek to have the case dismissed on its merits. "We believe that we have meritorious defenses to all of the claims raised in these three lawsuits, and accordingly, plan to defend them vigorously. All of these proceedings remain in the early stages with significant uncertainty as to factual issues, outcome of legal proceedings (including certification of the collective action), and likely number of opt-in plaintiffs and/or damages claimed. At this time, the Company cannot reasonably estimate the likely results or the economic effects on the Company of any of these lawsuits," the Company said. DIRECTV LLC: Has Made Unsolicited Calls, "Oliver" Suit Claims ------------------------------------------------------------- Kevin J. Oliver, individually and on behalf of all others similarly situated v. DirecTV, LLC, Case No. 1:14-cv-07794 (N.D. Ill., October 6, 2014), alleges that the Defendant made one or more unauthorized calls to the Plaintiff's cell phone using an automatic telephone dialing system. DirecTV, LLC is a direct broadcast satellite service provider and broadcaster. The Plaintiff is represented by: W. Craft Hughes, Esq. Jarrett L. Ellzey, Esq. Brian B. Kilpatrick, Esq. HUGHES ELLZEY, LLP 2700 Post Oak Blvd., Ste. 1120, Galleria Tower I Houston, TX 77056 Telephone: (713) 554-2377 Facsimile: (888) 995-3335 E-mail: craft@hughesellzey.com jarrett@hughesellzey.com brian@hughesellzey.com - and - Douglas M. Werman, Esq. Maureen A. Salas, Esq. Sarah J. Arendt, Esq. Zachary C. Flowerree, Esq. WERMAN SALAS P.C. 77 West Washington, Suite 1402 Chicago, IL 60602 Telephone: (312) 419-1008 E-mail: dwerman@flsalaw.com msalaes@flsalaw.com sarendt@flsalaw.com zflowerree@flsalaw.com DOLE PACKAGED: Falsely Marketed Fruit Products, "Mahan" Suit Says ----------------------------------------------------------------- Benjamin Mahan, individually, and on behalf of all others similarly situated v. Dole Packaged Foods, LLC, Case No. 1:14-cv- 13796 (D. Mass., October 6, 2014), arises out of the Defendant's marketing its fruit products as all natural and free of artificial ingredients, synthetic additives and chemical preservatives when, in fact, they are not all natural. Two of the listed ingredients in this product are ascorbic acid and citric acid. Both ascorbic acid and citric acid are added, artificial, synthetic chemical preservatives. Dole Packaged Foods, LLC provides retail food products, including Mandarin oranges and substantially similar products. The Plaintiff is represented by: Erica C. Mirabella, Esq. MIRABELLA LAW, LLC 132 Boylston Street, 5th Floor Boston, MA 02116 Telephone: (617) 580-8270 Facsimile: (617) 583-1905 E-mail: emirabella@gnemlaw.com - and - Charles J. LaDuca, Esq. Bonnie J. Prober, Esq. CUNEO GILBERT & LADUCA, LLP 8120 Woodmont Avenue, Suite 810 Bethesda, MD 20814 Telephone: (202) 789-3960 Facsimile: (202) 589-1813 E-mail: charles@cuneolaw.com bprober@cuneolaw.com - and - Charles Barrett, Esq. CHARLES BARRETT, P.C. 6518 Highway 100, Suite 210 Nashville, TN 37205 Telephone: (615) 515-3393 Facsimile: (615) 515-3395 E-mail: charles@cfbfirm.com - and - Don Barrett, Esq. DON BARRETT, P.A. P.O. Box 927, 404 Court Square North Lexington, MS 39095 Telephone: (662) 834-2488 Facsimile: (662) 834-2628 E-mail: donbarrettpa@gmail.com - and - Robert A. Clifford, Esq. CLIFFORD LAW OFFICES, PC 120 North LaSalle, 31st Floor Chicago, IL 60602 Telephone: (312) 899-9090 Facsimile: (312) 251-1160 E-mail: chd@cliffordlaw.com - and - Zona Jones, Esq. PROVOST UMPHREY LAW FIRM, LLP 490 Park Street Beaumont, TX 77701 Telephone: (409) 835-6000 Facsimile: (409) 813-8618 E-mail: zjones@pulf.com - and - Keith M. Fleischman, Esq. THE FLEISCHMAN LAW FIRM, PLLC 565 Fifth Avenue, Seventh Floor New York, NY 10017 Telephone: (212) 880-9571 Facsimile: (917) 591-5245 E-mail: keith@fleischmanlawfirm.com - and - Dewitt M. Lovelace, Esq. LOVELACE AND ASSOCIATES, LLC 12870 U.S. Hwy 98 West, Suite 200 Miramar Beach, FL 32550 Telephone: (850) 837-6020 Facsimile: (850) 837-4093 E-mail: dml@lovelacelaw.com - and - Ben F. Pierce Gore, Esq. PRATT & ASSOCIATES 1871 The Alameda, Suite 425 San Jose, CA 95126 Telephone: (408) 429-6506 Facsimile: (408) 369-0752 E-mail: pgore@prattattorneys.com EBAY INC: Files Motion to Dismiss Data Breach Class Action ---------------------------------------------------------- Jeffrey Roman, writing for Bank Info Security, reports that eBay has filed a motion to dismiss a class action lawsuit filed against the company in July following a breach earlier this year that resulted in 145 million customers having their personal information compromised. The plaintiff named in the case "does not allege that he has been injured by misuse of the stolen information," eBay says in its motion to dismiss the lawsuit, which was filed Sept. 30. "He does not allege that anyone has used his password, or that anyone has even tried to commit identity fraud with his information -- let alone that anyone has actually succeeded in doing so -- and that he has thereby suffered harm." Instead, eBay argues, the plaintiff "relies on vague, speculative assertions of possible future injury -- that maybe at some point in the future, he might be harmed." In addition, eBay argues the plaintiff failed to state a claim upon which relief can be granted. eBay alleges the plaintiff has taken a "shotgun" approach to pleading his claims, "asserting no fewer than 10 causes of action, including one under a statute that does not provide a private right of action and another under a statute that was repealed before the complaint was filed." Lawsuit Details The lawsuit, filed on behalf of Collin Green and all customers of eBay, contends that the breach was the result of the company's "inadequate security" for protecting identity information of its millions of customers. "eBay was aware of the value of the personal information it held, and threat to the security of that information long before the 2014 security breach," the lawsuit says, citing eBay's first quarter 2014 SEC filing, where the company acknowledged that security breaches were a constant threat. The lawsuit asserts that e-Bay violated state privacy laws, the Gramm-Leach-Bliley Act and the Federal Stored Communications Act. It also alleges a violation of Louisiana R.S. 51:3072, which states that "expeditious notification of possible misuse of a person's personal information is imperative." The suit doesn't specify instances of fraud or identity theft, but says class members "must be vigilant for many years in checking for fraud in their name, and be prepared to deal with the steep costs associated with identity fraud." It seeks compensatory damages, consequential damages, injunctive relief and costs of the suit, including attorneys' fees. Breach Background The breach, which eBay revealed in May, occurred between late February and early March. It began after a small number of employee log-in credentials were compromised, which allowed cyber- attackers to gain access to eBay's corporate network. Compromised information included encrypted passwords, customer names, e-mail addresses, mailing addresses, phone numbers and dates of birth, according to the company. The exposed database did not contain financial information, eBay says. The company urged 145 million customers to reset their passwords. ELEKTA INSTRUMENTS: Recalls Leksell Gamma Knife Perfexion --------------------------------------------------------- Starting date: October 6, 2014 Posting date: October 10, 2014 Type of communication: Medical Device Recall Subcategory: Medical Device Hazard classification: Type II Source of recall: Health Canada Issue: Medical Devices Audience: General Public, Healthcare Professionals, Hospitals Identification number: RA-41739 Recalled Products: Leksell Gamma Knife Perfexion Health Canada has got a report that the latches may be locked before they have been fully turned, resulting in a poorly locked frame. Investigations show that it may be possible to have a situation where the adapter latches can get stuck just above the coordinate frame surface and as a result the coordinate frame will not be fixed properly. Companies: Manufacturer Elekta InstrumentS AB Kungstensgatan 18, Stockholm 10393 Sweden EPL OIL: Defendants' Date to Answer Suit Indefinitely Extended -------------------------------------------------------------- EPL Oil & Gas, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on September 24, 2014, for the transition period from January 1, 2014 to June 30, 2014, that in March and April, 2014, three alleged stockholders filed three separate class action lawsuits in the Court of Chancery of the State of Delaware on behalf of the Company's stockholders against the Company, its directors, Energy XXI, EGC, and Clyde Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of EGC ("Merger Sub"). The Court of Chancery of the State of Delaware consolidated these lawsuits on May 5, 2014. The consolidated lawsuit is styled In re EPL Oil & Gas Inc. Shareholders Litigation, C.A. No. 9460-VCN, in the Court of Chancery of the State of Delaware (the "lawsuit"). The Company said, "Plaintiffs allege a variety of causes of action challenging the Agreement and Plan of Merger between Energy XXI, EGC, Merger Sub, and EPL (the "Merger Agreement"), including that (a) our directors have allegedly breached fiduciary duties in connection with the Merger and (b) we along with Energy XXI, EGC, and Merger Sub, allegedly aided and abetted in these alleged breaches of fiduciary duties. Plaintiffs' causes of action are based on their allegations that (i) the Merger allegedly provided inadequate consideration to our stockholders for their shares of our common stock; (ii) the Merger Agreement contained contractual terms -- including, among others, the (A) "no solicitation," (B) "competing proposal," and (C) "termination fee" provisions -- that allegedly dissuaded other potential acquirers from making competing offers for shares of our common stock; (iii) certain of our officers and directors allegedly received benefits -- including (A) an offer for one of our directors to join the Energy XXI board of directors and (B) the triggering of change-in-control provisions in notes held by our executive officers -- that were not equally shared by our stockholders; (iv) Energy XXI required our officers and directors to agree to vote their shares of our common stock in favor of the Merger; and (v) we provided, and Energy XXI obtained, non-public information that allegedly allowed Energy XXI to acquire us for inadequate consideration. Plaintiffs also allege that the Registration Statement filed on Form S-4 by us and Energy XXI on April 1, 2014 omits information concerning, among other things, (i) the events leading up to the Merger, (ii) our efforts to attract offers from other potential acquirors, (iii) our evaluation of the Merger; (iv) negotiations between us and Energy XXI, and (v) the analysis of our financial advisor. Based on these allegations, plaintiffs seek to have the Merger agreement rescinded. Plaintiffs also seek damages and attorneys' fees." "Defendants date to answer, move to dismiss, or otherwise respond to the lawsuit has been indefinitely extended. We cannot predict the outcome of the lawsuit or any others that might be filed subsequent to the date of the filing of this Transition Report; nor can we predict the amount of time and expense that will be required to resolve the lawsuit. The defendants intend to vigorously defend the lawsuit." FAIR TRADING: Recalls Pei Tien Konjac Brown Rice Rolls ------------------------------------------------------ Starting date: October 1, 2014 Type of communication: Recall Alert sub-type: Food Recall Warning (Allergen) Subcategory: Allergen - Milk Hazard classification: Class 3 Source of recall: Canadian Food Inspection Agency Recalling firm: Fair Trading Co. Ltd. Distribution: Ontario Extent of the product distribution: Retail CFIA reference number: 9276 Affected products: 160 g. Pei Tien Konjac Brown Rice Roll (Egg) and 160 g. Pei Tien Konjac Brown Rice Roll (Seaweed) FEDEX GROUND: Disagrees With Kansas Supreme Court Ruling -------------------------------------------------------- Erik Sherman, writing for Forbes.com, reports that a major labor class action lawsuit targeting FedEx Ground just cleared a major hurdle. The Kansas Supreme Court just ruled that Kansas drivers for the service had been employees, not independent contractors as FedEx claimed, as the published decision says. The result will have a major impact on a set of class action suits alleging FedEx Ground had misclassified its workers. The decision had been sought by the Court of Appeals for the Seventh Circuit in July, according to Bloomberg BNA. Judges Frank H. Easterbrook, Ilana Diamond Rovner, and John Daniel Tinder said that the Kansas court "is in a better position than we to say what Kansas law is." A decision that the Kansas drivers were not employees could have put the suit into jeopardy. The appeals court had been considering 21 appealed decisions in lawsuits alleging that FedEx Ground had incorrectly treated its drivers as owners of independent businesses rather than as employees. The difference could mean whether the drivers could continue to see back compensation as well as expenses that had been pushed onto them by the classification. In a statement sent by FedEx Ground, the company said: "We fundamentally disagree with this ruling and are committed to protecting the rights of thousands of independent business owners to continue owning and operating their own businesses." However, the suits were brought by some of those people that the company insisted were independent business owners. FedEx Ground also notes that in 2011 it stopped using the business model the court reviewed. In the 2000s, FedEx Ground drivers in multiple states filed suit, leading to a consolidated action that charged the company with falsely categorizing many of them as independent contractors. FedEx lost a three-judge panel appeals hearing in the Ninth Circuit in early September, reversing one district court decision. According to Beth Ross, lead counsel for the California plaintiffs and a partner with labor law firm Leonard Carder, "A conservative estimate of FedEx's exposure would be $250 million to $300 million excluding the mandatory attorney fees," just in California alone. In a statement at the time, FedEx Ground Senior Vice President and General Counsel Cary Blancett said, "We fundamentally disagree with these rulings, which run counter to more than 100 state and federal findings -- including the U.S. Court of Appeals for the D.C. Circuit -- upholding our contractual relationships with thousands of independent businesses." The company had planned to appeal to a full bench hearing at the Ninth Circuit. The Seventh Circuit was considering a separate number of cases, including claims by 479 Kansas plaintiffs. The appeals court asked the Kansas Supreme Court to rule on two issues. The first was whether the drivers would have been considered employees of FedEx under the Kansas Wage Payment Act, which was passed "to protect low income workers who were shorted, docked, or cheated out of pay for services performed." The second was if the answer would change if drivers had more than one service area. The Kansas Supreme Court said that the drivers were employees and that the answer did not change if the drivers were responsible for more than one delivery area. The deciding factor was that FedEx Ground exercised significant control over the drivers. Although the Kansas Supreme Court decision does not decide the outcome of the suits under consideration by the Seventh Circuit, the answer means the cases can now proceed. It is unclear whether FedEx has any additional legal step it can take at this point. The case is, 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. A copy of Kansas Supreme Court's Opinion is available at http://bit.ly/1qfPn5Rfrom Leagle.com. FISKARS CANADA: Recalls Fiskars 32-inch Bypass Lopper Shears ------------------------------------------------------------ Starting date: October 8, 2014 Posting date: October 8, 2014 Type of communication: Consumer Product Recall Subcategory: Household Items Source of recall: Health Canada Issue: Laceration Hazard Audience: General Public Identification number: RA-41719 Affected products: Fiskars 32-inch Bypass Lopper Shears, model 6954 The recall involves Fiskars Titanium bypass lopper shears with model number 6954. The lopper shears have 32-inch (81-centimetre) dark orange steel handles and black rubber grips with a gray strip. Plastic gears connected to the pruning blades allow the consumers to open and close the pruning blades by moving the handles. "FISKARS" is printed on one handle and product identification information, including model number 6954, is printed on a label on the opposite handle above the barcode. The UPC is 4656116954. The recall does not apply to any other Fiskars loppers. The lopper handles can break when attempting to cut branches, posing a risk of serious injury and laceration. Fiskars has received 11 reports of incidents in the United States involving lopper handles breaking, including reports of bruising and lacerations, some required stitches to the head and face. The company has not received any reports of incidents in Canada. Health Canada has not received any reports of consumer incidents or injuries related to the use of this product. Approximately 11,000 of the recalled loppers were sold in Canada exclusively at Home Depot. About 277,000 products were distributed in the United States. The recalled loppers were manufactured in China and sold from Jan. 2012 to June 2014 in Canada and from May 2011 to June 2014 in the United States. Companies: Manufacturer Green Guard Industry Co. Ltd. Tanzhou Town China Distributor Fiskars Canada Inc. Markham Ontario Canada Retailer The Home Depot of Canada Inc. Toronto Ontario Canada Consumers should immediately stop using the recalled 32-inch bypass lopper shears and contact Fiskars to receive a replacement lopper. To identify the 6954 lopper, look at the handle label for the model number ("Model 6954") above and left of the UPC barcode graphic. FOODFEST INTERNATIONAL: Recalls Next by Nature Chocolate Cherries ----------------------------------------------------------------- Starting date: October 2, 2014 Type of communication: Recall Alert sub-type: Food Recall Warning (Allergen) Subcategory: Allergen - Peanut Hazard classification: Class 1 Source of recall: Canadian Food Inspection Agency Recalling firm: Foodfest International 2000 Inc. Distribution: Ontario Extent of the product distribution: Retail Foodfest International 2000 Inc. is recalling next by Nature brand Dark Chocolate Cherries from the marketplace because they may contain peanuts which are not declared on the label. People with an allergy to peanuts should not consume the recalled product. Check to see if you have recalled product in your home. Recalled product should be thrown out or returned to the store where it was purchased. If you have an allergy to peanuts, do not consume the recalled product as it may cause a serious or life-threatening reaction. There have been no reported reactions associated with the consumption of this product. The recall was triggered by a recall in another country. The Canadian Food Inspection Agency (CFIA) is conducting a food safety investigation, which may lead to the recall of other products. If other high-risk products are recalled, the CFIA will notify the public through updated Food Recall Warnings. The CFIA is verifying that industry is removing recalled product from the marketplace. Affected products: 85 g. Next by Nature Dark Chocolate Cherries FRUITS DE MER: Recalls Madeleine Tomalley Spread ------------------------------------------------ Starting date: October 3, 2014 Type of communication: Recall Alert sub-type: Updated Food Recall Warning Subcategory: Microbiological - Clostridium botulinum Hazard classification: Class 1 Source of recall: Canadian Food Inspection Agency Recalling firm: Fruits de Mer Madeleine Inc. Distribution: Quebec Extent of the product distribution: Retail CFIA reference number: 9308 The food recall warning issued on Sept. 26, 2014 has been updated to include additional product information. This additional information was identified during the Canadian Food Inspection Agency's (CFIA) food safety investigation. Fruits de Mer Madeleine Inc. is recalling Madeleine brand Tomalley Spread (lobster paste) from the marketplace because it may permit the growth of Clostridium botulinum. Consumers should not consume the recalled product described below. Check to see if you have recalled product in your home. Recalled product should be thrown out or returned to the store where it was purchased. Food contaminated with Clostridium botulinum toxin may not look or smell spoiled but can still make you sick. Symptoms can include nausea, vomiting, fatigue, dizziness, blurred or double vision, dry mouth, respiratory failure and paralysis. In severe cases of illness, people may die. There have been no reported illnesses associated with the consumption of this product. The recall was triggered by the CFIA's inspection activities. The CFIA is conducting a food safety investigation, which may lead to the recall of other products. If other high-risk products are recalled, the CFIA will notify the public through updated Food Recall Warnings. The CFIA is verifying that industry is removing recalled product from the marketplace. Affected products: 80 g. Madeleine Tomalley Spread which was also sold without a label and is also known locally as "lobster paste" HAR MASPETH: Recalls Jinga "Pan Fried Anchovies" ------------------------------------------------ HAR Maspeth Corp. of Maspeth, NY, is recalling its 2 ounce and 4 ounce packages of Jinga "Pan Fried Anchovies" due to contamination with Listeria monocytogenes, an organism which can cause serious and sometimes fatal infections in young children, frail or elderly people and others with weakened immune systems. Although healthy persons may suffer only short-term symptoms such as high fever, severe headache, stiffness, nausea, abdominal pain and diarrhea, Listeria infection can cause miscarriages and stillbirths among pregnant women. The recalled Jinga "Pan Fried Anchovies" were distributed nationwide in retail stores and through mail orders. The product comes in a 2 ounce and 4 ounce, clear plastic packages marked with an expiration date of "9/28/2014" stamped on the top. An alleged illness has been reported to date in connection with this problem. The recall was initiated after routine sampling by The Virginia Department of Agriculture and Consumer Services Food Inspectors and subsequent analysis of the product by Food Laboratory personnel revealed the presence of Listeria monocytogenes. Customers who have purchased 2 ounce and 4 ounce packages of Jinga "Pan Fried Anchovies" are urged to return them to the place of purchase for a full refund. Consumers with questions may contact the company at 1-718-706-9300. HOFFMANN-LAROCHE: Judge Dismisses 4 Bellwether Accutane Cases ------------------------------------------------------------- Mary Pat Gallagher, writing for New Jersey Law Journal, reports that in rulings likely to have repercussions that will reverberate through the 7,300-plus Accutane cases that are centralized in Atlantic County, N.J., Judge Nelson Johnson has dismissed four bellwether cases on statute of limitations grounds. Judge Johnson, a Superior Court judge who took over Atlantic's multi-county litigation docket Sept. 1, found that the four plaintiffs, one of whom is a lawyer, failed to show that they learned of their illnesses and the possible connection with Accutane within two years of filing their lawsuits against drugmakers Hoffmann-LaRoche and Roche Laboratories. Judge Johnson's Oct. 3 opinions explain that he decided to address the timeliness question because in reviewing 24 prospective bellwether cases that had been recommended by counsel, he observed that at least 13 of them would likely have to defend against a motion to dismiss based on the two-year limitations period. If the same proportion were to hold true over the entire Accutane docket -- 7,377 cases as of Aug. 30 -- the limitations issue would be a potential factor in almost 4,000 cases. Judge Johnson conducted a "Lopez hearing" -- so named after the 1973 N.J. Supreme Court decision in Lopez v. Swyer -- in four bellwether cases to determine whether the plaintiffs filed within two years of diagnosis and, if not, whether they were entitled to equitable tolling under the discovery rule. In determining that each of the plaintiffs knew or should have known enough to sue more than two years before the deadline, Johnson questioned the truthfulness of two of them, including attorney Danielle Kays, saying "her testimony regarding how and when she first linked her IBD [inflammatory bowel disease] to her use of Accutane strains credibility irreparably." Accutane was used to treat severe acne until Roche withdrew it from the market in 2009, according to court documents. Ms. Kays claimed she first made the connection between the drug and her illness Sept. 18, 2008, while doing research for her law firm, when she -- "fortuitously," Judge Johnson said -- came across a case that discussed claims for intestinal problems purportedly caused by Accutane. Judge Johnson noted that Ms. Kays was unclear about whether the case referred to inflammatory bowel disease or ulcerative colitis but she claimed that upon reading it she was able to understand for the first time the cause of her medical condition. She sued Sept. 16, 2010, which Johnson said was "conveniently two days shy" of the final day to file. Judge Johnson was skeptical about Ms. Kays' inability to explain how she remembered the precise date she saw the case. Judge Johnson said that in his experience as a judge and practicing attorney, people recall when things happened with reference to who they were with, the season, a particular event and so on but Kay had "no anchor for her memory" and had to refresh her recollection when deposed about it last December. Judge Johnson also questioned why Ms. Kays did not remember the name of the case that sparked her recognition. "The undersigned has been working with attorneys for more than four decades, and can imagine no attorney in the same or similar circumstances who would be unable to provide, at a minimum, the caption and/or citation," Judge Johnson said. He questioned why Ms. Kays "can't tell us the name," the jurisdiction or any of the facts of the case and why she did not print it out or download it. "To embrace Ms. Kays' testimony, one would have to believe her to be a singularly uncurious person," Judge Johnson said, adding, "Lawyers are curious by nature and training." He concluded that Ms. Kays had not met her burden of proof that she filed on time and was not entitled to equitable tolling and, thus, dismissed her case with prejudice. Judge Johnson reached the same result regarding Dennis Nance, saying Mr. Nance's medical records contain "history that he did his best to ignore and withhold from the pretrial discovery process." Mr. Nance sued in June 2011 and, like all Accutane plaintiffs, had to complete a Plaintiff's Fact Sheet, a lengthy court form that identifies their symptoms and lists all their doctors, among other information. Mr. Nance initially omitted Dr. Gary Hills of Tulsa, Okla., whom he saw many times between November 2004 and November 2006 for his ulcerative colitis, according to Judge Johnson. It was not until Mr. Nance's March 2013 deposition that he was able to recall Dr. Hills and Mr. Nance did not add Hills to his fact sheet until four days before the Lopez hearing, Judge Johnson said. Judge Johnson quoted Dr. Hills' November 2013 deposition testimony about being told by Mr. Nance that he was going to call a lawyer at a 1-800 number about the relationship between his colitis and Accutane. Dr. Hills said that conversation would have occurred no later than Mr. Nance's final visit, in November 2006. Judge Johnson observed that Mr. Nance was "visibly uncomfortable while testifying about Hills" and he made no serious effort to explain how he initially omitted him. Judge Johnson faulted a third plaintiff, Kristy Brecke, for her delay in obtaining a diagnosis after she experienced rectal bleeding within 90 days of starting to take Accutane. The bleeding was one of the known risks of Accutane that Ms. Brecke was told about beforehand, as part of what Judge Johnson described as an "elaborate warning system" used by Roche, which involved a brightly colored 50-plus-page brochure and counseling by a licensed medical professional about the 15 warnings, accompanied by a consent form and pre-prescription pregnancy testing for female patients. "A person would have to be either a child or an adult of limited mental capacity, not to appreciate that the use of this medication is associated with known, harsh side effects which cause unpleasant conditions," Judge Johnson said. Ms. Brecke told her doctor about the bleeding as early as December 2003 and the doctor suspected Accutane was the cause, according to Judge Johnson. Though the bleeding continued, she was not diagnosed with IBD until 2006, partly because instead of seeking a medical opinion she was away from home on 10 extended "high desert treks" in the United States over a one-and-a-half-year period, followed by a two-month backpacking trip to Southeast Asia, according to Judge Johnson. "While her adventuresome spirit is remarkable, reasonable people would consider her disregard for her health foolhardy," Judge Johnson said. The last dismissed plaintiff, Gregory Luongo, simply waited too long to sue -- more than eight years -- after being diagnosed with ulcerative colitis, despite brochure warnings that should have tipped him off to the Accutane connection, according to Judge Johnson. Roche responded to the dismissals with a statement that it was "gratified that the trial court recognized [its] extensive communication of safety information to Accutane patients through its 'elaborate warning system' rendered all four of the trial-set cases time-barred." The company also said it "will continue to defend the Accutane cases brought against it based both on the strength of these warnings and on the developing science that continues to rule out a link between Accutane and inflammatory bowel disease." None of the plaintiffs' lawyers returned a call: Steven D. Davis -- sdavis@torhoermanlaw.com -- of Tor Hoerman Law in Edwardsville, Ill., for Ms. Kays; Alan Sklarsky -- asklarsky@wcblegal.com -- of Philadelphia-based Williams Cuker Berezofsky, for Mr. Nance; Stephen Bolton -- sbolton@hookbolton.com -- of Hook Bolton in Pensacola, Fla., for Ms. Brecke; and Jeffrey Crawford -- jcrawford@bpblaw.com -- of Bailey Peavy Bailey in Houston, for Mr. Luongo. The dismissed cases were among the five slated for trial early next year and other bellwether cases must now be selected to replace them. HOME DEPOT: Faces "Hernandez" Suit in N.D. Ga. Over Data Breach --------------------------------------------------------------- Edda Hernandez, individually and on behalf of all others similarly situated v. The Home Depot, Inc., a Delaware corporation, Case No. 1:14-cv-03198 (N.D. Ga., October 6, 2014), failure to secure and safeguard its customers' personal financial data, personal identifying information and private information. The Home Depot, Inc. is the world's largest home improvement specialty retailer and fourth largest retailer in the United States, with stores in all 50 states, the District of Columbia, Puerto Rico, U.S. Virgin Islands, 10 Canadian provinces and Mexico. The Plaintiff is represented by: Joseph J. Siprut, Esq. Gregory W. Jones, Esq. SIPRUT PC 17 N. State Street, Suite 1600 Chicago, IL 60602 Telephone: (312) 236-0000 Facsimile: (312) 878-1342 E-mail: jsiprut@siprut.com gjones@siprut.com www.siprut.com - and - Rachel Soffin, Esq. MORGAN & MORGAN COMPLEX LITIGATION GROUP 191 Peachtree Street NE Suite 4200 Atlanta, GA 30303 Telephone: (404) 965-8811 E-mail: jsoffin@forthepeople.com - and - Katrina Carroll, Esq. Kyle A. Shamberg, Esq. LITE DEPALMA GREENBERG, LLC 211 W. Wacker Drive, Suite 500 Chicago, IL 60606 Telephone: (312) 750-1265 E-mail: kcarroll@litedepalma.com kshamberg@litedepalma.com HORIBA ABX: Recalls ABX PENTRA Magnesium RTU -------------------------------------------- Starting date: September 26, 2014 Posting date: October 10, 2014 Type of communication: Medical Device Recall Subcategory: Medical Device Hazard classification: Type III Source of recall: Health Canada Issue: Medical Devices Audience: General Public, Healthcare Professionals Identification number: RA-41755 Recalled Products: ABX PENTRA Magnesium RTU Potential that, customers running the Magnesium RTU Assay on the ABX PENTRA 400 Chemistry Analyzers that on-board stability has been updated. User will be unable to calibrate the Magnesium RTU Assay after 1 day of on-board (on instrument use), the control will be out of range at values lower than target values. The result reported using this failed calibration will be flagged "cal_error" displayed on the results with a "C". Companies: Manufacturer Horiba ABX, Parc Euromedecine rue Du Caducee - BP 7290, Cedex 4 Montpellier 34184 France HOSPIRA: Recalls 1 Lot of Vancomycin Hydrochloride for Injection ---------------------------------------------------------------- Hospira, Inc. (NYSE: HSP), announced it is initiating a voluntary nationwide user-level recall of one lot of Vancomycin Hydrochloride for Injection, USP, Equivalent to 1 g Vancomycin (Sterile Powder), NDC 0409-6533-01, Lot 35-315-DD with expiration date of 01 NOV 2015. This action is because the product may have experienced temperature excursions during shipment to a customer and then was further distributed by the customer. There have been no adverse events or complaints reported for the affected lot. Hospira is undertaking the recall out of an abundance of caution. Due to lack of information on the effect of uncontrolled temperatures on vancomycin and toxicological and clinical characterization of potential degradants, a meaningful medical risk assessment cannot be performed. Anyone with an existing inventory of the recalled lot should stop use and distribution and quarantine the product immediately. This recall is being carried out to the medical facility/retail level (both human and veterinary). Please notify all users in your facility. If you have further distributed the recalled product please notify any accounts or additional locations which may have received the recalled product from you and instruct them if they have redistributed the product to notify their accounts, locations or facilities to the medical facility/retail level. In addition, customers should inform potential users of this product in their organizations of this notification. Hospira will be notifying its direct customers via a recall letter and will arrange for impacted product to be returned to Stericycle. For additional assistance, call Stericycle at 1-844-861-6215 between the hours of 8am to 5pm ET, Monday through Friday. IKEA: Recalls Pastaalgar FullkorN and Pastaalgar Over Soy --------------------------------------------------------- If you have purchased Pastaalgar FullkorN, elk-shaped wholegrain pasta or Pastaalgar, elk-shaped pasta, in the Swedish Food Market at IKEA, please be aware that the product may contain soy, which is not declared on the product. As a precautionary measure, IKEA has decided to recall these products. Analyses of Pastaalgar Fullkorn and Pastaalgar have indicated presence of soy which is not declared on the product. Soy is an allergen and persons allergic to soy may experience an allergic reaction if eating the product. The product is safe for anyone not allergic or sensitive to soy. Customers allergic to soy or otherwise concerned are welcome to return Pastaalgar Fullkorn and Pastaalgar to the nearest IKEA store for a full refund. Ikea are sorry for any inconvenience this may cause. IMPAX LABORATORIES: Formally Resolved Securities Class Action ------------------------------------------------------------- Impax Laboratories, Inc. said in its Form 8-K Report filed with the Securities and Exchange Commission on September 24, 2014, that on September 22, 2014, the Company, together with certain current and former officers and directors of the Company, formally resolved the federal securities class action lawsuits filed against the Company and the other defendants in the United States District Court for the Northern District of California, captioned Mulligan v. Impax Laboratories, Inc., et al, No. 3:13-cv-01037-EMC (N.D. Cal.) (the "Securities Class Actions"). The settlement provides for the resolution of all the pending claims in the Securities Class Actions, without any admission or concession of wrongdoing or liability by the Company or the other defendants. The Company and other defendants agreed to the settlement to eliminate the uncertainty, distraction, burden and expense of further litigation. Pursuant to the settlement, the Company will pay $8.0 million for a full and complete release of all claims that were or could have been asserted against the Company or other defendants in the Securities Class Actions. The Company will not be taking any charges for the settlement as the settlement amount will be paid for and covered by the Company's insurance policy. The settlement remains subject to preliminary and final court approval and certain other conditions and does not resolve the related shareholder derivative litigations. INDIANA: BMV Commissioner Fails to Provide Class Action Documents ----------------------------------------------------------------- The Associated Press reports that the commissioner of the Indiana Bureau of Motor Vehicles faces possible charges of contempt for failing to provide documents in a class action law suit. A Marion County judge ordered Don Snemis on Oct. 1 to explain why the state agency hasn't handed over the documents by the court- ordered deadline of Sept. 29. The order followed a motion filed by an Indianapolis-based law firm two days prior that asked the judge to intervene. "A year ago, we asked for the very specific documents that implicated the BMV in the overcharging of millions of Hoosiers by millions of dollars. The BMV went a year without giving it to us. Finally, 60 days ago, the judge said no: You must give the plaintiffs all of these documents before September 29. They haven't done that," attorney Irwin Levin -- ilevin@cohenandmalad.com -- of Cohen & Malad LLP, which is representing the motorists involved in the lawsuit. The law firm alleges the BMV is concealing information that could prove it overcharged millions of motorists through unauthorized license fees. "Obviously the BMV thinks they can keep things secret even after the court has ordered them to produce them to the public," said Mr. Levin. "It is really outrageous conduct, especially when it's coming from our own government." The plaintiffs are seeking about 60,000 emails, meeting minutes and other records from the BMV. They hope the documents will confirm testimony from former director Matthew Foley, who said he warned top officials about the overcharges two years before they were acknowledged. An attorney for the BMV says it didn't violate the judge's court order and isn't trying to hide anything. He said the agency needs a few more weeks to finish compiling the documents. "The BMV is producing everything that is responsive and not privileged within that scope," said BMV attorney Wayne Turner. "But, the discovery called for 60,000 documents and hundreds of thousands of pages. It takes time to do that work. We're about 80 percent of the way done with that now. So, we requested additional time." INFOBLOX INC: Calif. Securities Class Action Consoldated -------------------------------------------------------- Infoblox Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on September 25, 2014, for the fiscal year ended July 31, 2014, that beginning on May 30, 2014, the first of three putative securities class action suits was filed in the United States District Court for the Northern District of California against the Company and two of its officers. The cases are Ansfield v. Infoblox Inc., et al., Case No. 3:14-cv-02500-VC (N.D. Cal.); Beqaj v. Infoblox Inc., et al., Case No. 3:14-cv-02564-VC (N.D. Cal.); and Achey, et al. v. Infoblox Inc., et al., Case No. 3:14-cv-02644-VC (N.D. Cal.). These suits, which have been deemed to be related cases, allege that defendants made materially false and misleading statements, or failed to disclose material facts, regarding the Company's financial results, business, operations and prospects. The various suits assert claims covering the period from September 5, 2013 through May 29, 2014, are purportedly brought on behalf of purchasers of the Company's securities during that period, and seek compensatory damages, interest, costs and expenses, as well as equitable or other relief. On July 29, 2014, various members of the putative class filed motions for appointment as lead plaintiff(s) and approval of lead counsel, and also moved for consolidation of the various actions. On September 25, 2014, the lead plaintiffs were appointed and the suits consolidated. The defendants do not need to respond to any of the existing complaints. Instead, the lead plaintiffs will be permitted to file an amended consolidated complaint and defendants will thereafter respond to that amended pleading. No discovery has yet occurred; pursuant to the provisions of the Private Securities Litigation Reform Act of 1995, all discovery and other proceedings are stayed until and unless a motion to dismiss is denied (or until defendants choose to answer rather than filing a motion to dismiss). "Due to the inherent uncertainties of litigation, we cannot accurately predict the ultimate outcome of this matter. We are unable at this time to determine whether the outcome of the litigation would have a material impact on our results of operations, financial condition or cash flows," the Company said. Infoblox Inc. is a leader in network control, network automation and domain name system (DNS) security though appliance-based solutions that enable and secure dynamic networks and next- generation data centers. INTEGRITY STAFFING: Court to Weigh on Suit Over Security Checks --------------------------------------------------------------- Steven Greenhouse, writing for The New York Times, reports that after his 12-hour shifts at an Amazon warehouse in Las Vegas, Jesse Busk says, he and 200 other workers typically waited in line for 25 minutes to undergo a security check to see whether they had stolen any goods. Upset that the temp agency that employed him refused to pay workers for that time, Mr. Busk sued. On Oct. 1, the Supreme Court was set hear oral arguments about this hotly contested issue. The nation's retailers are paying close attention because such security checks are common. The Supreme Court is to determine whether the check and related waiting time were part of Mr. Busk's regular, compensable workday or, as the temp agency argues, were time after his workday and not compensable. "It was unfair not being paid for those 25 minutes," said Mr. Busk, who was laid off from the Amazon warehouse job and now works as a boxing instructor. "The job was exhausting -- we would sometimes walk 20 miles a night -- and I was eager to go home and get some sleep." Mr. Busk, who made $12.35 an hour, and a second worker filed a class action in 2010, asserting that wage and overtime laws were being violated. In friend-of-the-court briefs filed with the Supreme Court, retailers' groups pointed to a study that found that 63 percent of stores checked bags and performed other antitheft checks at the end of the workday. The retailers expressed concern that if the court ruled for Mr. Busk, they would have to pay employees for that time. In its brief, the temp agency, Integrity Staffing Solutions, argues that the security check and the related waiting time are part of the "preliminary" or "postliminary" activities that are not compensable under the Portal-to-Portal Act, which Congress passed in 1947. Integrity Staffing pointed to a 1956 Supreme Court case, Steiner v. Mitchell, involving the donning and doffing of work clothes at a battery-making plant. The court wrote that compensation was required for tasks that were "integral and indispensable" to workers' "principal activities." Integrity Staffing wrote in its brief, "Time spent passing through a security screening is a paradigmatic example of an activity that is noncompensable" because it is "postliminary to employees' principal job activities." Its counsel of record is Paul D. Clement, one of the nation's foremost Supreme Court practitioners. Mr. Busk's lawyer, Mark R. Thierman, disagreed. "The antitheft check is integral and indispensable because the company said you have to do it," he said. "If the company tells you to do it, it doesn't matter whether it's related to what else you do on the job." Mr. Thierman said that if an employer ordered a worker to do something, that work should be compensable, whether or not it was integral and indispensable to primary work activities. He cited a 2005 Supreme Court case, IBP v. Alvarez, which said that if a company required its employees to arrive at a particular time to begin waiting, even if there was no work to be done at that time, the waiting time would be compensable and not just preliminary. "It's by definition a principal activity because you were told to do it," Mr. Thierman said. He argued that under Integrity Staffing's logic, if the company ordered an employee to mow the lawn outside the Amazon warehouse for 25 minutes after his 12-hour shift, the company would not have to pay for that work because it would not be considered "integral and indispensable" to his principal activity of tracking down goods ordered online. Integrity Staffing declined to comment, as did Amazon, which is not a defendant in the case. In several similar lawsuits involving workers at other Amazon warehouses, plaintiffs have sued not just temp agencies but also Amazon, asserting that it should be held accountable as a joint employer. Integrity Staffing is appealing a ruling by the United States Court of Appeals for the Ninth Circuit, which held that Mr. Busk had stated a legitimate wage claim. That court found that the security check at the Amazon warehouse was "necessary to the principal work performed," was "done for the benefit of the employer" and was therefore "integral and indispensable." The Obama administration has filed a brief backing Integrity Staffing. Signed by lawyers from the Labor and Justice Departments, the administration's brief said the Ninth Circuit's focus on whether antitheft checks were done for the employer's benefit was "an insufficient proxy for determining" whether they were integral and indispensable to a principal activity. The administration argued that the security check at the Amazon warehouse was little different from a security check at an airport that construction workers must go through on their way to a project at the airport. The 11th Circuit has ruled that the time spent in that airport security check was not compensable and not integral to the job, on the grounds that it was ordered by the Federal Aviation Administration, not the employer, and was not of particular benefit to the employer. Some pro-labor groups voiced surprise that the administration was backing Integrity Staffing. "The administration says it's time to put more money in the pockets of workers who work long hours with low pay," said Catherine Ruckelshaus, general counsel for the National Employment Law Project, an advocacy group for workers. "Their position in this case is contrary to what they've been saying." Edward A. Brill, who filed a supporting brief for the Retail Litigation Center, the U.S. Chamber of Commerce and other business groups, voiced concern that if the Supreme Court ruled for Mr. Busk, it would encourage a wave of lawsuits and force many retailers to spend a lot of money revamping their security checks and clock-out procedures. "It's important to have a bright-line test," he said, "so that it's not enough to allege in a complaint that you had to wait 25 or 30 minutes." J&B EUROPEAN: Recalls Kupiec Rice Cakes With Dark Chocolate ----------------------------------------------------------- J&B European Distribution Inc. of Brooklyn, NY is recalling 40 cases of Kupiec brand Rice Cakes with Dark Chocolate, net wt. 3.1 OZ. (90g), UPC # 5 906747 171742, because they may contain undeclared milk. People who have an allergy to milk run the risk of serious or life-threatening allergic reaction if they consume this product. Kupiec brand Rice Cakes with Dark Chocolate, net wt. 3.1 oz. (90g) were distributed to retail outlets throughout NY, NJ, and PA, and to one retail location in North Carolina. The product was shipped between 6/24/2014 and 7/23/2014. Kupiec brand Rice Cakes with Dark Chocolate, NET WT. 3.1 oz., UPC # 5 906747 171742, are packed in a white oval plastic package picturing a stack of the rice cakes topped with chocolate. There are 6 rice cakes per package. The product was imported from Poland. J&B European Distribution is not aware of any confirmed illnesses to date in its distribution area; however the FDA has confirmed one such case in the Chicago, IL area. The recall was initiated after it was discovered that product containing milk was distributed in packaging that did not reveal the presence of milk. Subsequent investigation indicates the problem was caused by an inadvertent omission on the label by the producer during the revision of the packaging process. Consumers who have purchased Kupiec brand Rice Cakes with Dark Chocolate, net wt. 3.1 oz., UPC # 5 906747 171742, are urged to return it to the place of purchase for a full refund. Consumers with questions may contact J&B European Distribution at 1-718-782- 3712, Monday - Friday, 8am - 4pm, ET. KOHL'S CORPORATION: Sued in Pennsylvania Over Violation of ADA -------------------------------------------------------------- Sarah Heinzl, individually and on behalf of all others similarly situated v. Kohl's Corporation, Case No. 2:14-cv-01353 (W.D. Pa., October 6, 2014), is brought against the Defendant for violations of Title III of the Americans with Disabilities Act. Kohl's Corporation owns and operates a department store retail chain. The Plaintiff is represented by: R. Bruce Carlson, Esq. CARLSON LYNCH 115 Federal Street, Suite 210 Pittsburgh, PA 15212 Telephone: (412) 322-9243 E-mail: bcarlson@carlsonlynch.com KRAFT CANADA: Recalls Double Cheddar Shredded Natural Cheese ------------------------------------------------------------ Starting date: October 7, 2014 Type of communication: Recall Alert sub-type: Notification Subcategory: Extraneous Material Hazard classification: Class 2 Source of recall: Canadian Food Inspection Agency Recalling firm: Kraft Canada Inc. Distribution: National Extent of the product distribution: Retail CFIA reference number: 9310 Affected products: 180 g. Kraft Double Cheddar Shredded Natural Cheese LUMBER LIQUIDATORS: Disgruntled Investors File Lawsuit ------------------------------------------------------ Tim McGlone, writing for The Virginian-Pilot, reports that top executives at Toano-based Lumber Liquidators were greeted recently with a new lawsuit filed by disgruntled investors who claim the company misled them by touting high expected earnings when, in fact, profits were about to plummet. The company has been battered over the past year by lawsuits, a federal criminal investigation and financial results that fell short of expectations. Its stock price, which reached nearly $120 a share, recently traded below $53 before closing at $54.29. On Sept. 26, Robert Lynch, Lumber Liquidators' CEO, and Daniel Terrell, its chief financial officer, were served with a lawsuit filed by the city of Hallandale, Fla., Police Officers' and Firefighters' Personal Retirement Trust. Lawyers for the retirement fund say in court papers that Mr. Lynch and Mr. Terrell misled investors by failing to report that the company was having supply chain problems and product shortages, which affected earnings. While the trust filed its lawsuit in the Alexandria federal court, it is also seeking to intervene in a suit in the Newport News federal court filed by two investors who made similar allegations. About a year ago, an environmental group issued a report that said it had evidence that the company was importing illegally harvested wood from protected Russian forests that are home to the endangered Siberian tiger and the Far East leopard. That led to a raid on the company's headquarters and its Richmond warehouse in an ongoing federal investigation. The company faces other suits across the U.S. over allegations of illegal fax solicitations, violations of the Fair Credit Reporting Act, and selling formaldehyde-tainted products. M & A INTERIOR: "Martinez" Suit Seeks to Recover Unpaid OT ---------------------------------------------------------- Israel Martinez, on behalf of himself and all others similarly- situated v. M. & A. Interior Painting & Tiling, Inc., Muneshwar Singh, and Shafi "Doe," in their individual and professional capacities, Case No. 1:14-cv-08047 (S.D.N.Y., October 6, 2014), seeks to recover unpaid overtime compensation pursuant to the Fair Labor Standards Act. M. & A. Interior Painting & Tiling, Inc. owns and operates a general construction company in New York. The Plaintiff is represented by: Alexander L. Gastman, Esq. Alexander T. Coleman, Esq. Michael J. Borrelli, Esq. BORRELLI & ASSOCIATES, P.L.L.C. 655 Third Avenue, Suite 1821 New York, NY 10017 Telephone: (212)679-5000 Facsimile: (212)679-5005 NAT'L FOOTBALL: Concussion Accord to Serve as Template ------------------------------------------------------ Charles Anzalone, in an article for the University of Buffalo's Buffalo.edu, reports that the $765 million class action settlement of concussion claims for retired NFL players that won preliminary approval in the U.S. Court of Appeals is a "potential template" for other professional athletes, says University at Buffalo Law School faculty member Christine P. Bartholomew, who is an expert on class action and antitrust litigation. "This is a settlement to watch," says Ms. Bartholomew, who was a class action attorney specializing in antitrust and consumer class actions before joining the Law School faculty in 2006. "It has potential implications far beyond the NFL retirees involved," she says. "This case demonstrates how collective action can be a successful avenue for highlighting the dangers facing professional athletes." The $765 million lawsuit brought by retired NFL players won approval from a Philadelphia federal judge, the first hurdle before the settlement is finalized. The players appealed the pending settlement to the Third Circuit, asking the court to expand benefits. The Third Circuit rejected the challenge. The Brain Injury Association of America recently filed a brief questioning the eligibility definitions in the proposed settlement. Both challenges will be decided as part of the final approval process, Ms. Bartholomew says. Players had until Oct. 12 to decide whether to participate in the settlement. Final approval for the settlement is scheduled for Nov. 19. More than 5,000 football players have sued the league for damages for head injuries. The retirees accuse the NFL of failing to inform players of the link between repeated traumatic head impact and long-term brain injuries. Ms. Bartholomew says the settlement does provide "very real, significant compensation," even though it is hard putting a dollar amount on future potential health problems. "It is hard not to see this case -- and its potential settlement - - as a potential template for other professional athletes," she says. "This is particularly true for the pending NHL concussion case. I wouldn't be surprised to see similar claims brought by, say, professional basketball or baseball players in the near future." Ms. Bartholomew says the significance of this case goes beyond professional athletes. "Class action practitioners and scholars are also closely monitoring this settlement," she says. "My guess is the players who challenged the settlement plan to appeal the settlement all the way to the Supreme Court. This court, in particular, has been pretty hostile to class actions. Whether even a settlement that is well-structured and significant, like this one, would survive Supreme Court review is anyone's guess these days." After spending 10 years as a class action attorney, Ms. Bartholomew's academic scholarship builds on her extensive real-world experience. Her research now focuses on civil procedure and, in particular, class actions and antitrust. Her most current scholarship explores the tension between class actions' enforcement potential and heightened procedural and evidentiary rules. "I am currently examining the procedural and evidentiary rules governing class actions and how new interpretations of these rules limit plaintiffs' abilities to bring aggregate claims," she says. Ms. Bartholomew's scholarship has been published in leading law reviews, including Cardozo Law Review, Brooklyn Law Review and Fordham Law Review. NAT'L FOOTBALL: Settlement Opt-Out Deadline Won't Be Extended ------------------------------------------------------------- Saranac Hale Spencer, writing for The Legal Intelligencer, reports that the deadline for former players to opt out of the proposed settlement with the National Football League won't be moved back, the federal judge handling the case has ruled. Lawyers for some of the players had asked U.S. District Judge Anita Brody of the Eastern District of Pennsylvania to push the deadline back from Oct. 14 to a date beyond the fairness hearing for the settlement, which is scheduled for Nov. 19. Thomas Demetrio -- TAD@CorboyDemetrio.com -- of Corboy & Demetrio in Chicago and several other lawyers who are representing former players allege that they've been left in the dark about the particulars of the accord and can't properly advise their clients as to whether they should take part in the class settlement or opt out and pursue their own case against the National Football League. Judge Brody had granted preliminary approval in early July to a settlement agreed to by the NFL and co-lead counsel for the plaintiffs. The judge had rejected the first deal in January because she was troubled by the lack of empirical support for the total amount of the settlement -- which was $760 million -- and that she was unsure that there would be enough money to cover all of the players with potential claims because the portion of the settlement from which injured players could draw was capped at $675 million. She ordered the NFL and the co-lead counsel for the plaintiffs to submit to the court the documentation on which they based that settlement, but that information wasn't made available to the other lawyers representing clients in the case. Last month, actuarial reports commissioned by co-lead counsel for the plaintiffs and the NFL were made public. Although each report took a different route to get to its conclusion, each found that with the amount of interest likely to accrue on the bulk of the original settlement, there would have been enough to last for the 65-year expected life of the fund. Mr. Demetrio's primary concern about the settlement is that it doesn't sufficiently compensate players and their families for chronic traumatic encephalopathy, or CTE. That's an argument to be raised at the fairness hearing, Judge Brody told Mr. Demetrio during a telephone conference about his motion on Oct. 7. The issue before her now is the length of the opt-out period, which was set to be 90 days from when she granted preliminary approval to the settlement in July. A recording of the call was posted on the docket shortly after the call ended. "We believe that at the end of the day, you are going to see that CTE must be included in the settlement going forward," Mr. Demetrio had said. As for the length of the opt-out period, Mr. Demetrio said, "I don't believe it is sufficient because we don't know what we're opting out of." He asked that it be moved to a date after the fairness hearing. Christopher Seeger, co-lead counsel for the plaintiffs who has done much of the negotiating with the NFL for the two settlements, vehemently defended the agreement during the call on Oct. 7. "Mr. Demetrio doesn't need to know what I thought while I was negotiating. He doesn't need to know what the drafts of certain documents looked like. He doesn't need to understand the research that I've done, which encompasses my own experience and the research I've done in negotiating settlement values," Mr. Seeger had said. All Mr. Demetrio must decide is whether to advise his client to opt out of the settlement, Mr. Seeger said, "and I don't think Mr. Demetrio could argue he doesn't understand what the offer is." Brody issued a one-page order on Oct. 9 denying the motion to extend the opt-out period. During the call on Oct. 7, she had said she expected to make a ruling quickly and issue a memorandum later. "That may very well be at the time of the fairness hearing," she had said. NEIMAN MARCUS: Appeals in "Pinela" and "Monjazeb" Cases Pending --------------------------------------------------------------- Neiman Marcus Group LTD LLC said in its Form 10-K Report filed with the Securities and Exchange Commission on September 25, 2014, for the fiscal year ended August 2, 2014, that the appeal with respect to the Pinela class action has been fully briefed and awaits the setting of a date for oral argument, and the appeal with respect to the Monjazeb class action will be dismissed once final approval of a class action settlement is granted. On April 30, 2010, a Class Action Complaint for Injunction and Equitable Relief was filed against the Company, Newton Holding, LLC, TPG Capital, L.P. and Warburg Pincus LLC in the United States District Court for the Central District of California by Sheila Monjazeb, individually and on behalf of other members of the general public similarly situated. On July 12, 2010, all defendants except for the Company were dismissed without prejudice, and on August 20, 2010, this case was dismissed by Ms. Monjazeb and refiled in the Superior Court of California for San Francisco County. This complaint, along with a similar class action lawsuit originally filed by Bernadette Tanguilig in 2007, alleges that the Company has engaged in various violations of the California Labor Code and Business and Professions Code, including without limitation, by (1) asking employees to work "off the clock," (2) failing to provide meal and rest breaks to its employees, (3) improperly calculating deductions on paychecks delivered to its employees and (4) failing to provide a chair or allow employees to sit during shifts. The Monjazeb and Tanguilig class actions have been deemed "related" cases and are pending before the same trial court judge. On October 24, 2011, the court granted the Company's motion to compel Ms. Monjazeb and Juan Carlos Pinela (a co-plaintiff in the Tanguilig case) to arbitrate their individual claims in accordance with the Company's Mandatory Arbitration Agreement, foreclosing their ability to pursue a class action in court. However, the court's order compelling arbitration did not apply to Ms. Tanguilig because she is not bound by the Mandatory Arbitration Agreement. Further, the court determined that Ms. Tanguilig could not be a class representative of employees who are subject to the Mandatory Arbitration Agreement, thereby limiting the putative class action to those associates who were employed between December 2003 and July 15, 2007 (the effective date of our Mandatory Arbitration Agreement). Following the court's order, Ms. Monjazeb and Mr. Pinela filed demands for arbitration with the American Arbitration Association (AAA) seeking to arbitrate not only their individual claims, but also class claims, which the Company asserted violated the class action waiver in the Mandatory Arbitration Agreement. This led to further proceedings in the trial court, a stay of the arbitrations, and a decision by the trial court, on its own motion, to reconsider its order compelling arbitration. The trial court ultimately decided to vacate its order compelling arbitration due to a recent California appellate court decision. Following this ruling, the Company timely filed two separate appeals, one with respect to Mr. Pinela and one with respect to Ms. Monjazeb, with the Court of Appeal, asserting that the trial court did not have jurisdiction to change its earlier determination of the enforceability of the arbitration agreement. The appeal with respect to Mr. Pinela has been fully briefed and awaits the setting of a date for oral argument. The appeal with respect to Ms. Monjazeb will be dismissed once final approval of the class action settlement is granted. Neiman Marcus is one of the largest luxury, multi-branded, omni- channel fashion retailers in the world. NEIMAN MARCUS: No Date Set for Oral Argument in Tanguilig Appeals ----------------------------------------------------------------- Neiman Marcus Group LTD LLC said in its Form 10-K Report filed with the Securities and Exchange Commission on September 25, 2014, for the fiscal year ended August 2, 2014, that no date has been set for oral argument in the appeals related to the Tanguilig class action. The Company said the trial court decided to set certain civil penalty claims asserted by Bernadette Tanguilig for trial on April 1, 2014. In these claims, Ms. Tanguilig sought civil penalties under the Private Attorneys General Act based on the Company's alleged failure to provide employees with meal periods and rest breaks in compliance with California law. On December 10, 2013, the Company filed a motion to dismiss all of Ms. Tanguilig's claims, including the civil penalty claims, based on her failure to bring her claims to trial within five years as required by California law. After several hearings, on February 28, 2014, the court dismissed all of Ms. Tanguilig's claims in the case and vacated the April 1, 2014 trial date. The court has awarded the Company its costs of suit in connection with the defense of Ms. Tanguilig's claims, but denied its request of an attorneys' fees award from Ms. Tanguilig. Ms. Tanguilig filed a notice of appeal from the dismissal of all her claims, as well as a second notice of appeal from the award of costs, both of which are pending before the Court of Appeal. Should the Court of Appeal reverse the trial court's dismissal of all of Ms. Tanguilig's claims, the litigation will resume, and Ms. Tanguilig will seek class certification of the claims asserted in her Third Amended Complaint. If this occurs, the scope of her class claims will likely be reduced by the class action settlement and release in the Monjazeb class action case; however, that settlement does not cover claims asserted by Ms. Tanguilig for alleged Labor Code violations from approximately December 19, 2003 to August 20, 2006 (the beginning of the settlement class period in the Monjazeb case). No date has been set for oral argument in Ms. Tanguilig's appeals. Neiman Marcus is one of the largest luxury, multi-branded, omni- channel fashion retailers in the world. NEIMAN MARCUS: Settlement in "Monjazeb" Case Has Final Approval --------------------------------------------------------------- Neiman Marcus Group LTD LLC said in its Form 10-K Report filed with the Securities and Exchange Commission on September 25, 2014, for the fiscal year ended August 2, 2014, that in the Monjazeb class action, a settlement was reached at a mediation held on January 25, 2014. After several hearings, the trial court granted preliminary approval of the settlement on May 6, 2014 and directed that notice of settlement be given to the settlement class. The deadline for class members to opt out of the settlement was August 11, 2014. The final approval hearing was held on September 18, 2014. The court stated that final approval of the settlement would be granted, but required plaintiff's counsel to submit additional information to support plaintiff's motion for attorney's fees. Neiman Marcus is one of the largest luxury, multi-branded, omni- channel fashion retailers in the world. NEIMAN MARCUS: Court Approves Settlement in "Newton" Case --------------------------------------------------------- Neiman Marcus Group LTD LLC said in its Form 10-K Report filed with the Securities and Exchange Commission on September 25, 2014, for the fiscal year ended August 2, 2014, that a putative class action was filed on December 6, 2013, against the Company in the San Diego Superior Court by a former employee. The case is entitled Marisabella Newton v. Neiman Marcus Group, Inc., et al., and the complaint alleges claims similar to those made in the Monjazeb case. After filing an answer to the complaint in the Newton case and responding to discovery, the Company reached a settlement of Ms. Newton's individual claims and a dismissal of her class allegations, subject to court approval. The court approved the settlement and dismissed the case on August 25, 2014. Neiman Marcus is one of the largest luxury, multi-branded, omni- channel fashion retailers in the world. NEIMAN MARCUS: Faces "Rubenstein" Case Over Pricing Strategy ------------------------------------------------------------ Neiman Marcus Group LTD LLC said in its Form 10-K Report filed with the Securities and Exchange Commission on September 25, 2014, for the fiscal year ended August 2, 2014, that a putative class action complaint was filed on August 7, 2014, against The Neiman Marcus Group LLC in Los Angeles County Superior Court by a customer, Linda Rubenstein, in connection with the Company's Last Call stores in California. Ms. Rubenstein alleges that the Company has violated various California consumer protection statutes by implementing a marketing and pricing strategy that suggests that clothing sold at Last Call stores in California was originally offered for sale at full-line Neiman Marcus stores when allegedly, it was not, and is allegedly of inferior quality to clothing sold at the full-line stores. "On September 12, 2014, we removed the case to the United States District Court for the Central District of California. We will vigorously defend our interests in this matter. We will continue to evaluate this matter based on subsequent events, new information and future circumstances," the Company said. Neiman Marcus is one of the largest luxury, multi-branded, omni- channel fashion retailers in the world. NEIMAN MARCUS: 3 Cyber-Attack Class Actions Voluntarily Dismissed ----------------------------------------------------------------- Neiman Marcus Group LTD LLC said in its Form 10-K Report filed with the Securities and Exchange Commission on September 25, 2014, for the fiscal year ended August 2, 2014, that three class actions relating to the Cyber-Attack were filed in January 2014 and later voluntarily dismissed by the plaintiffs between February and April 2014. The plaintiffs had alleged negligence and other claims in connection with their purchases by payment cards. Melissa Frank v. The Neiman Marcus Group, LLC, et al., was filed in the United States District Court for the Eastern District of New York on January 13, 2014 but was voluntarily dismissed by the plaintiff on April 15, 2014, without prejudice to her right to re- file a complaint. Donna Clark v. Neiman Marcus Group LTD LLC was filed in the United States District Court for the Northern District of Georgia on January 27, 2014 but was voluntarily dismissed by the plaintiff on March 11, 2014, without prejudice to her right to re-file a complaint. Christina Wong v. The Neiman Marcus Group, LLC, et al., was filed in the United States District Court for the Central District of California on January 29, 2014, but was voluntarily dismissed by the plaintiff on February 10, 2014, without prejudice to her right to re-file a complaint. Neiman Marcus is one of the largest luxury, multi-branded, omni- channel fashion retailers in the world. NEIMAN MARCUS: "Remijas" Cyber-Attack Class Action Dismissed ------------------------------------------------------------ Neiman Marcus Group LTD LLC said in its Form 10-K Report filed with the Securities and Exchange Commission on September 25, 2014, for the fiscal year ended August 2, 2014, that the Court granted the Company's motion to dismiss the Remijas class action on the grounds that the plaintiffs lacked standing due to their failure to demonstrate an actionable injury. Three new putative class actions relating to the Cyber-Attack were filed in March and April 2014, also alleging negligence and other claims in connection with plaintiffs' purchases by payment cards. Two of the cases, Katerina Chau v. Neiman Marcus Group LTD, Inc., filed in the United States District Court for the Southern District of California on March 14, 2014, and Michael Shields v. The Neiman Marcus Group, LLC, filed in the United States District Court for the Southern District of California on April 1, 2014, were voluntarily dismissed, with prejudice as to Chau and without prejudice as to Shields. The third case, Hilary Remijas v. The Neiman Marcus Group, LLC, was filed on March 12, 2014 in the Northern District of Illinois. On June 2, 2014, an amended complaint in the Remijas case was filed, which added three plaintiffs (Debbie Farnoush and Joanne Kao, California residents; and Melissa Frank, a New York resident) and asserted claims for negligence, implied contract, unjust enrichment, violation of various consumer protection statutes, invasion of privacy and violation of state data breach laws. The Company moved to dismiss the Remijas amended complaint on July 2, 2014. On September 16, 2014, the court granted the Company's motion to dismiss the Remijas case on the grounds that the plaintiffs lacked standing due to their failure to demonstrate an actionable injury. Neiman Marcus is one of the largest luxury, multi-branded, omni- channel fashion retailers in the world. NEW ORIENTAL EDUCATION: Final Approval Hearing Set for Nov. 14 -------------------------------------------------------------- New Oriental Education & Technology Group Inc. said in its Form 20-F Report filed with the Securities and Exchange Commission on September 25, 2014, for the fiscal year ended May 31, 2014, that a final approval hearing is set for November 14, 2014, on the settlement reached in the Consolidated Class Action and the Tardio Action. On July 23, 2012, a putative shareholder class action lawsuit against our company, Michael Minhong Yu and Louis T. Hsieh, Wong v. New Oriental Education & Technology Group Inc., No. 2:12-cv- 06316-MMM-JEM, was filed in the United States District Court for the Central District of California. Shortly thereafter, three more putative shareholder class action suits against the same defendants were filed in the United States District Court for the Southern District of New York: Sax v. New Oriental Education & Technology Group, Inc., No. 1:12-cv-05724-JGK (S.D.N.Y. filed July 25, 2012); Gabel v. New Oriental Education & Technology Group, Inc., No. 1:12-cv-05963-JGK (S.D.N.Y. filed Aug. 3, 2012); and Tardio v. New Oriental Education & Technology Group, Inc., No. 1:12-cv-06619-JGK (S.D.N.Y. filed Aug. 29, 2012). The four actions contain similar factual allegations, allege virtually the same class period, are brought against the same defendants, and advance the same theories of liability. These actions seek to represent a class of persons who suffered damages as a result of their trading activities related to our ADSs from July 21, 2009 to July 23, 2012. All four actions allege violations of section 10(b) of the Exchange Act and Rule 10b-5 promulgated thereunder, 17 C.F.R. 240.10b-5 (2012), and section 20(a) of the Exchange Act, 15 U.S.C. Sections 78j(b), 78t(a). The complaints allege that various press releases, financial statements and other related disclosures made by our company during the class period contained material misstatements and omissions, in violation of the federal securities laws, and that the press releases, financial statements and other related disclosures artificially inflated the value of our company's ADSs and affected the trading prices of our ADSs. The complaints generally seek monetary damages on behalf of the class of persons who suffered losses during the class period. On September 17, 2012, the Company moved the Judicial Panel on Multi-District Litigation ("MDL") to have the four actions transferred and consolidated for pretrial purposes in a single jurisdiction before a single judge. On September 21, 2012, various plaintiffs filed separate motions to be appointed lead plaintiff and, in some instances, for consolidation of the lawsuits. Plaintiffs subsequently submitted a stipulation seeking to consolidate the actions pending in the Southern District of New York ("SDNY") and appoint a lead plaintiff. On October 12, 2012, the Wong action in the Central District of California was voluntarily dismissed, rendering the Company's MDL motion moot and leaving the remaining three actions pending in the Southern District of New York. On October 25, 2012, Plaintiffs' actions were consolidated as a single action in the SDNY and a lead plaintiff was appointed. On December 10, 2012, the lead plaintiff filed a Consolidated Amended Class Action Complaint ("CAC"), which is the operative complaint in the consolidated action. Defendants moved to dismiss the CAC on January 25, 2013. Defendants' motion to dismiss has been fully briefed and currently remains pending before the Court. The action otherwise remains at its preliminary stages. On March 8, 2013, Plaintiff Julio Tardio, the named plaintiff in Tardio v. New Oriental Education & Technology Group Inc., No. 1:12-cv-06619-JGK (S.D.N.Y. filed Aug. 29, 2012) (the "Tardio Action"), which was ultimately consolidated into the Consolidated Class Action, filed a motion to be appointed co-lead plaintiff in the Consolidated Class Action. Plaintiff Tardio sought to represent the interests of New Oriental options traders who were excluded from the putative class proposed in the CAC. After a round of briefing from all parties, the Court ordered that the Tardio Action be severed from the Consolidated Class Action so that Plaintiff Tardio can bring an individual or class action lawsuit on behalf of New Oriental options traders. The Court ordered, however, that any answer to Plaintiff Tardio's complaint be stayed until the Court resolves the pending motion to dismiss in the Consolidated Class Action. Plaintiff Tardio subsequently filed an Amended Class Action Complaint on June 6, 2013. Defendants' motion to dismiss the Consolidated Class Action remains pending before the Court. On December 23, 2013, the Court entered an order granting in part, and denying in part Defendants' motion to dismiss the CAC. Specifically, the Court dismissed the allegations regarding alleged misstatements concerning the company's ownership of our schools and learning centers. The Court denied the motion as to the remaining allegations. In April 2014, parties in both the Consolidated Class Action and the Tardio Action reached a settlement of both actions. The parties submitted an executed settlement agreement and accompanying papers to the Court on May 23, 2014. On June 10, 2014, the Court entered an order preliminarily approving both settlement agreements. A final approval hearing is set for Friday, November 14, 2014. "We did not admit to any wrongdoing and continue to deny the allegations made in both actions," the Company said. NEW ZEALAND: Seeka Supports Kiwifruit Growers' Class Action ----------------------------------------------------------- David Porter, writing for Bay of Plenty Times, reports that leading post-harvest company and kiwifruit grower Seeka has confirmed it will be supporting class action being brought against the Government by a group of kiwifruit growers over damages caused by the Psa vine infestation. The decision puts it at odds with the positions outlined by the New Zealand Kiwifruit Growers Inc. (NZKGI) and single-desk export marketing organization Zespri, which have cautioned growers against joining the action. Michael Franks, chief executive of the Te Puke-headquartered NZX-listed post-harvest operator, said in a letter to its 500-odd growers on Oct.4 that the company had become aware of inaccurate statements regarding Seeka circulating in the industry, and had decided to make a statement about its position. "Having fully considered the financial and human impacts on Seeka and its people of the alleged biosecurity breach and the loss of wealth by our shareholders, Seeka has taken the decision to join the class action," said Mr. Franks. "Seeka considers the right place for the issue to be considered is in the courts rather than under the vines. "Seeka has seen the legal opinions both for and against and offers no opinion on their merits other than to say, in our opinion there is merit in having them tested. Seeka respects the rights of every grower to make their own decision in relation to this matter and offers no guidance to any grower." Mr. Franks told the Bay of Plenty Times Weekend Seeka would be claiming in respect of 105ha of leases it had control over, as well as significant losses suffered as a post-harvest operator, conservatively estimated at more than $45million. "We support the class-action claim, but we were not responsible for bringing it," he said. NZKGI earlier strongly advised growers not to join the claim until it had finished due diligence on the agreement growers were being asked to sign when they joined the claim. "A key concern for NZKGI is ensuring growers are not exposed to large financial costs in the event the claim is unsuccessful," said NZKGI vice-president Doug Brown. "We believe this claim may damage the kiwifruit industry's relationship with the New Zealand Government." Mr. Franks said in his letter to growers Seeka rejected any argument that the action would put at risk the single-desk system. "The single desk is not involved in this action. We understand the group of growers seeking support for this action considers it to be a matter of accountability and compensation." ONE FIFTY: "Zamora" Suit Seeks to Recover Unpaid Overtime Wages --------------------------------------------------------------- Franklin Zamora and Arturo Caravantes on behalf of themselves, FLSA Collective Plaintiffs and the Class Members v. One Fifty Fifty Seven Corp. d/b/a Russian Tea Room, RTR Funding Group, Inc., Gerald Lieblich, Ken Biberaj and Hasan Biberaj, Case No. 1:14-cv- 08043 (S.D.N.Y., October 6, 2014), seeks to recover unpaid minimum and overtime wages, unlawfully retained tips, liquidated damages, and attorneys' fees and costs pursuant to the Fair Labor Standards Act. The Defendants own and operate a Russian Tea Room restaurant with a principal place of business at 150 W 57th Street, New York, New York. The Plaintiff is represented by: Anne Melissa Seelig, Esq. C.K. Lee, Esq. LEE LITIGATION GROUP, PLLC 30 East 39th Street, 2nd Floor New York, NY 10016 Telephone: (212) 465-1124 Facsimile: (212) 465-1181 E-mail: anne@leelitigation.com cklee@leelitigation.com OVERLAND STORAGE: Plaintiffs File Consolidated Amended Complaint ---------------------------------------------------------------- Overland Storage, Inc. said in its Form 10-K Report filed with the Securities and Exchange Commission on September 24, 2014, for the fiscal year June 30, 2014, that in May 2014, the Company announced that it had signed an agreement and plan of merger with Sphere 3D. Since the merger was announced, four separate putative shareholder class action lawsuits were filed against the Company, all of its directors, and Sphere 3D in the California Superior Court in and for the County of San Diego. Three of the lawsuits also named Cyrus Capital Partners, the majority shareholder of the Company, as a defendant. The Company said, "On June 25, 2014, the Superior Court entered an order providing for the consolidation of all cases relating to our decision to enter into the merger agreement with Sphere 3D. These cases have been consolidated before a single judge and are referred to as In re Overland Storage Inc., Shareholders Litigation, Lead Case No. 37-2014-00016017-CU-SL-CTL. On July 30, 2014, the plaintiffs filed their consolidated amended complaint." "The lawsuit alleges breaches of fiduciary duties and conflicts of interest against our directors relating to the merger process, the terms of the merger agreement, and the consideration to be received our shareholders under the terms of the merger agreement. The lawsuit alleges that the other defendants aided and abetted the purported breaches of fiduciary duties by our directors. The relief sought includes an injunction prohibiting the consummation of the proposed merger, rescission of the merger to the extent already implemented or rescissory damages, damages, and an award of attorneys' fees and costs. "We believe the lawsuit to be without merit and intend to vigorously defend against the action. However, if the plaintiffs are successful in preventing the merger, or are awarded significant damages, it could materially and adversely affect our business, financial condition, liquidity, and the market price of its common stock." Overland Storage is a trusted global provider of unified data management and data protection solutions across the data lifecycle. PRIMARY FINANCIAL: Has Made Unsolicited Calls, "McLean" Suit Says ----------------------------------------------------------------- Ashaunte McLean, on behalf of himself and others similarly situated v. Primary Financial Services, LLC, an Arizona limited liability company, Case No. 1:14-cv-07789 (N.D. Ill., October 6, 2014), arises out of the Defendant's illegal conduct in making calls using an automatic telephone dialing system and an artificial or prerecorded voice to the cellular telephone numbers of Plaintiff and others. Primary Financial Services, LLC is a collection agency, which regularly conducts debt collection business activity in the State of Illinois and throughout the country. The Plaintiff is represented by: Alexander Holmes Burke, Esq. BURKE LAW OFFICES, LLC 155 N. Michigan Ave., Suite 9020 Chicago, IL 60601 Telephone: (312) 729-5288 E-mail: ABurke@BurkeLawLLC.com PROTECTIVE LIFE: Court Dismisses "Edelman" Class Action ------------------------------------------------------- Protective Life Corporation said in its Form 8-K Report filed with the Securities and Exchange Commission on September 25, 2014, that with respect to the putative class action lawsuit filed in the Circuit Court of Jefferson County, Alabama, captioned Edelman v. Protective Life Corporation, et al., Case No. 01-CV-2014-90247400, on September 5, 2014, the court held a hearing to address motions to dismiss the lawsuit filed on behalf of the Company, the members of the Company's Board, and DL Investment (Delaware), Inc. On September 19, 2014, the court granted those motions and dismissed the lawsuit in its entirety and with prejudice, pending a possible appeal by the plaintiff. PROTECTIVE LIFE: MOU Reached in Delaware Class Action ----------------------------------------------------- Protective Life Corporation said in its Form 8-K Report filed with the Securities and Exchange Commission on September 25, 2014, that with respect to the three putative class action lawsuits filed in the Court of Chancery for the State of Delaware, captioned Martin v. Protective Life Corporation, et al., Civil Action No. 9794-CB, Leyendecker v. Protective Life Corporation, et al., Civil Action No. 9931-CB, and Hilburn v. Protective Life Corporation, et al., Civil Action No. 9937-CB, on August 1, 2014, the Delaware Court of Chancery granted an order of consolidation and appointment of co- lead counsel, consolidating the three lawsuits for all purposes under the caption In re Protective Life Corporation Stockholders Litigation, C.A. No. 9794-CB, and designating the Hilburn Complaint as the operative complaint (the "Delaware Action"). On September 24, 2014, the Company, each of the members of the Company's Board, Dai-ichi, and DL Investment (Delaware), Inc. entered into a Memorandum of Understanding (the "MOU") with the plaintiffs in the Delaware Action, which sets forth the parties' agreement in principle for a settlement of the Delaware Action. As set forth in the MOU, the Company, the members of the Company's Board, Dai-ichi, and DL Investment (Delaware), Inc. have agreed to the settlement solely to eliminate the burden, expense, distraction, and uncertainties inherent in further litigation, and without admitting any liability or wrongdoing. The MOU contemplates that the parties will seek to enter into a stipulation of settlement providing for the certification of a mandatory non opt-out class, for settlement purposes only, that includes any and all record and beneficial owners of shares (excluding the members of the Company's Board and their immediate family members, any entity in which any member of the Company's Board has a controlling interest, and any successors in interest thereto) who held shares at any time during the period beginning on June 3, 2014, through the date of consummation or termination of the proposed merger, including any and all of their respective successors in interest, successors, predecessors in interest, representatives, trustees, executors, administrators, heirs, assigns, or transferees, immediate and remote, and any person or entity acting for or on behalf of, or claiming under, any of them, together with their predecessors, successors and assigns, and a global release of claims relating to the Merger as set forth in the MOU. The claims in the Delaware Action will not be released until such stipulation of settlement is approved by the Court of Chancery of the State of Delaware. There can be no assurance that the parties will ultimately enter into a stipulation of settlement or that the court will approve such settlement even if the parties were to enter into such stipulation. The settlement will not affect the consideration to be received by the Company stockholders in connection with the Merger. In the Agreement and Plan of Merger, dated as of June 3, 2014, The Dai-ichi Life Insurance Company, Limited, a kabushiki kaisha organized under the laws of Japan ("Dai-ichi"), and DL Investment (Delaware), Inc., a Delaware corporation and wholly-owned subsidiary of Dai-ichi, pursuant to which DL Investment (Delaware), Inc. will merge into and with the Company (the "Merger"), with the Company surviving the Merger as a wholly owned subsidiary of Dai-ichi. RADIANT LOGISTICS: Files Answer in "Barahona" Class Action ---------------------------------------------------------- Radiant Logistics, Inc. filed an Answer in the case Radiant Global Logistics, Inc. and DBA Distribution Services, Inc. (Ingrid Barahona California Class Action), Los Angeles County Superior Court, Case No. BC525802, the Company said in its Form 10-K Report filed with the Securities and Exchange Commission on September 24, 2014, for the fiscal year ended June 30, 2014. On October 25, 2013, plaintiff Ingrid Barahona filed a purported class action lawsuit against Radiant Global Logistics, Inc. ("Radiant"), DBA Distribution Services, Inc. ("DBA"), and two third-party staffing companies (collectively, the "Staffing Defendants") with whom Radiant and DBA contracted for temporary employees. In the lawsuit, Ms. Barahona seeks damages and penalties under California law alleging that she and the putative class were the subject of unfair and unlawful business practices, including certain wage and hour violations relating to, among others, failure to provide certain rest and meal periods, as well as failure to pay minimum wages and overtime. Ms. Barahona alleges that she was jointly employed by the staffing companies and Radiant and DBA. "Radiant and DBA deny Ms. Barahona's allegations in their entirety, deny that they are liable to Ms. Barahona or the putative class members in any way, and are vigorously defending against these allegations based upon our preliminary evaluation of applicable records and legal standards," the Company said. "In addition, we believe that the plaintiff's class definition is overly broad and cannot meet California's class action certification requirements. On August 28, 2014, we filed an Answer to Ms. Barahona's First Amended Complaint, and the case remains in the early stages of litigation. We are unable to express an opinion as to the final outcome of the matter." Radiant Logistics, Inc. is a non-asset based transportation and logistics services company providing domestic and international freight forwarding services and truck brokerage services through a network of Company-owned and strategic operating partner locations operating under the Radiant, Airgroup, Adcom, DBA and On Time network brands located throughout North America and an integrated service partner network serving other markets around the globe. RADIOSHACK CORP: Class Action Threatens Fluctuating Workweek ------------------------------------------------------------ Jonathan Randles, Igor Kossov and Kurt Orzeck, writing for Law360, report that the U.S. Chamber of Commerce and National Federation of Independent Businesses on Oct. 2 urged the Second Circuit to strike down an appeal seeking to revive a proposed class action against RadioShack Corp., arguing the revived case could threaten businesses that use "fluctuating workweek" schedules. The Chamber and NFIB filed an amicus brief asking the appeals court to affirm U.S. District Judge Paul Engelmayer's dismissal of lead plaintiff Jaime Wills' suit against the electronics retailer. The appeal challenges RadioShack's use of the fluctuating workweek method to calculate performance-based bonuses for managers. The brief argues that Judge Engelmayer correctly determined that RadioShack's methodology conforms with federal and New York labor laws, and said Mr. Wills' suit is a veiled attack on the fluctuating workweek itself. It is not the first time RadioShack's labor practices have been questioned. The company has also faced similar litigation in Pennsylvania over its use of the fluctuating workweek method. Ordinarily, employees who work overtime must receive 1.5 times the pay they get for regular hours. But under a fluctuating workweek schedule, nonexempt employees get paid a fixed amount per week and receive half their hourly wage for each hour of overtime. The Chamber said the lawsuit threatens the flexibility afforded employers under the Fair Labor Standards Act for putting together a fluctuating workweek system. "The payment of a fixed salary for variable hours is lawful, as is the payment of bonuses, and the FLSA does not prohibit employers from combining the two," the brief said. "The district court recognized (correctly) that an employer who pays employees a fixed salary for variable hours is not prohibited from also paying 'performance-based bonuses' that are not based on the number of hours worked." Mr. Wills claimed the U.S. Department of Labor decided in 2011 that performance-based bonuses were incompatible with the fluctuating workweek method, which allows employers to pay workers a reduced overtime rate amounting to half their hourly pay. But Judge Engelmayer determined that the 2011 decision only applied to hourly bonuses, not performance-based ones. Mr. Wills worked as a manager of the company's store in Tonawanda, New York, from October 2008 to December 2011. Earlier in 2011, the DOL ruled that bonuses were incompatible with the fluctuating workweek method, his suit alleged. The lawsuit was filed against RadioShack in April 2013, alleging the company should have compensated its workers for overtime with pay at time-and-a-half from the date of the DOL decision forward. The Chamber and NFIB are represented by Tammy McCutchen -- tmccutchen@littler.com -- Robert Pritchard -- rpritchard@littler.com -- and Daniel Thieme -- dthieme@littler.com -- of Littler Mendelson PC. Mr. Wills is represented by Joshua Cohen -- jcohen@crklaw.com -- and Jason Bristol -- jbristol@crklaw.com -- of Cohen Rosenthal & Kramer LLP and Anthony Lazzaro of The Lazzaro Law Firm LLC. RadioShack is represented by Charles Bird -- cbird@mckennalong.com -- of McKenna Long & Aldridge LLP. The case is Jaime Wills v. RadioShack Corp., case number 13-4661, in the U.S. Court of Appeals for the Second Circuit. S & K VEGETABLES: Suit Seeks to Recover Unpaid Minimum & OT Wages ----------------------------------------------------------------- Jesus Alberto Zelaya Martinez, individually and in behalf of all other persons similarly situated v. S & K Vegetables Corp. d/b/a Apna Bazar Cash and Carry and Desh Deepak Bhardwaj, jointly and severally, Case No. 1:14-cv-05844 (E.D.N.Y., October 6, 2014), seeks to recover unpaid minimum wages, overtime compensation, and such other relief under the Fair Labor Standards Act. The Defendants own and operate a supermarket or grocery store known as Apna Bazar Cash and Carry and located at 7220 37th Avenue, Jackson Heights, New York. The Plaintiff is represented by: John Gurrieri, Esq. Brandon D. Sherr , Esq. LAW OFFICE OF JUSTIN A. ZELLER 277 Broadway Suite 408 New York, NY 10007 Telephone: (212) 229-2249 Facsimile: (212) 229-2246 E-mail: jmgurrieri@zellerlegal.com bsherr@zellerlegal.com SALLIE MAE: Faces "Schultz" Suit for Making Unsolicited Calls ------------------------------------------------------------- Lisa Schultz, on behalf of herself and others similarly situated v. Sallie Mae, Inc., Case No. 1:14-cv-07808 (N.D. Ill., October 6, 2014), is brought against the Defendant for negligently, knowingly, and willfully contacting the Plaintiff on the cellular telephone without their prior express consent. Sallie Mae, Inc. offers education loans to students or their families. The Plaintiff is represented by: Alexander Holmes Burke, Esq. BURKE LAW OFFICES, LLC 155 N. Michigan Ave., Suite 9020 Chicago, IL 60601 Telephone: (312) 729-5288 E-mail: ABurke@BurkeLawLLC.com SAMSUNG ELECTRONICS: Judge Tosses Disk Drive Price-Fixing Suits --------------------------------------------------------------- Marisa Kendall, writing for The Recorder, reports that defense lawyers for several electronics companies accused of a price- fixing conspiracy scored a victory when a federal judge refused to certify classes of purchasers to pursue claims against the makers of optical disk drives. U.S. District Judge Richard Seeborg of the Northern District of California ruled reports by plaintiffs' expert witnesses failed to measure up to the "rigorous analysis" demanded by evolving class certification standards. Plaintiffs' expert testimony pinpoints individual examples of bid rigging, but falls short of showing an overarching conspiracy carried out by makers of the disk readers used in computers and game consoles. Judge Seeborg added that he sees a "troubling disconnect" between plaintiffs' narrowly tailored expert reports and their lawyers' sweeping arguments. "The [direct purchaser plaintiffs] simply have not shown they possess a viable methodology for proving with generalized evidence, that all, or nearly all members of the class suffered damage as a result of defendants' alleged anti-competitive conduct," Judge Seeborg wrote. The judge, who denied motions to certify classes of both direct and indirect purchasers, added that plaintiffs' model "makes no attempt to establish, but instead simply assumes, class-wide impact." Optical disk drives, used in a variety of consumer electronic products, allow data to be read from and written to disks, such as CDs and DVDs. The antitrust class actions follow a U.S. Department of Justice investigation into bid rigging said to have affected bulk purchases made by Dell Inc., Hewlett-Packard Co. and Microsoft Corp. Hitachi-LG Data Storage Inc., a joint venture of Japan's Hitachi Ltd. and Korea's LG Electronics Inc., pleaded guilty and agreed to pay a $21.1 million fine in 2011. Other defendants in the civil action include Samsung Electronics Co. and Toshiba Corp. The suits allege that makers of the disk drives colluded between 2004 and 2009 to stabilize a decline in prices. Ropes & Gray represents the Hitachi partnership; O'Melveny & Myers represents Samsung; Latham & Watkins represents Toshiba; and Boies, Schiller & Flexner represents Sony Corp. Following Judge Seeborg's order, plaintiffs lawyers are weighing their options, said Richard Saveri -- jsaveri@saverilawfirm.com -- of Saveri & Saveri, lead counsel for the direct purchasers. Possible responses include filing a petition for appeal, asking Judge Seeborg for leave to modify the proposed class, proceeding with individual plaintiff suits or settling. Judge Seeborg didn't make clear whether he would consider certifying a modified class. He mandated that both sides have 20 days to submit a joint report detailing how they think the litigation should proceed. "I still think it's a good case, and I think there's a good class in here," Mr. Saveri said. "It may not include everybody, but that's the way it is in all these cases." Jeff Friedman and Steve Berman of Hagens Berman Sobol Shapiro represent the indirect purchaser plaintiffs. Judge Seeborg also questioned whether a class action is the best vehicle to bring claims against the disk drive manufacturers. Several of the plaintiffs with the strongest claims and largest purchases, including Dell, have preemptively opted out of the class litigation and filed individual suits. Even if plaintiffs were able to demonstrate classwide impact, "substantial questions would remain as to whether a class action would be the superior method of proceeding," Judge Seeborg wrote. Mr. Saveri said parallel opt-out litigation supports the case for class certification. "Obviously, if there's a company like Dell, who's out there filing lawsuits," he said, "it must mean that these are very good lawsuits and that people have been injured." Seeborg also pointed to recent case law that has imposed stricter requirements on plaintiffs in the class certification stage, citing U.S. Supreme Court cases Comcast v. Behrend and Wal-Mart Stores v. Dukes. O'Melveny partner Ian Simmons -- isimmons@omm.com -- who is defending Samsung in the disk drive litigation, said courts are taking a closer look at class certification motions. "After Comcast, assumptions and presumed impact have no place in the analysis," he said. "Rather, courts have to take a hard look at the evidence and the economic evidence that is put before them in deciding the class certification question." SUPERIOR AIRCRAFT: "Mobley" Suit Seeks to Recover Unpaid Overtime ----------------------------------------------------------------- Phillip Mobley, and other similarly situated individuals v. Superior Aircraft Services, Inc. and Barry Kornman, Case No. 0:14- cv-62299 (S.D. Fla., October 6, 2014), seeks to recover unpaid overtime compensation under the Fair Labor Standards Act. Superior Aircraft Services, Inc. owns and operates an airline service company in Florida. The Plaintiff is represented by: Darren Jeffery Rousso, Esq. DARREN J. ROUSSO, P.A. 9350 South Dixie Highway, Suite 1200 Miami, FL 33156 Telephone: (305) 670-6669 Facsimile: (305) 670-6666 E-mail: Roussolaw@aol.com SWS GROUP: Plaintiffs Drop Bids for Preliminary Injunction ---------------------------------------------------------- SWS Group, Inc. said in its Form 10-K/A Amendment No. 1 filed with the Securities and Exchange Commission on September 25, 2014, for the fiscal year ended June 30, 2014, that plaintiffs in a class action withdrew motions for preliminary injunction prohibiting the consummation of the merger of the Company and Peruna LLC, a wholly-owned subsidiary of Hilltop Holdings Inc. ("Hilltop"). Two putative class actions on behalf of purported stockholders of the Company challenging the proposed merger of the Company and Peruna are pending in the Court of Chancery of the State of Delaware. Both lawsuits name as defendants the Company, the members of the BOD, Hilltop, and Peruna, (Joseph Arceri v. SWS Group, Inc. et al and Chaile Steinberg v. SWS Group, Inc. et al filed April 8, 2014 and April 11, 2014, respectively). On May 13, 2014, the Delaware Chancery Court consolidated the two actions for all purposes. On June 10, 2014, plaintiffs filed a consolidated amended complaint. The complaint generally alleges, among other things, that the BOD breached its fiduciary duties to stockholders by failing to take steps to maximize stockholder value or to engage in a fair sale process before approving the merger, and that the other defendants aided and abetted such breaches of fiduciary duty. The complaint alleges, among other things, that the BOD labored under conflicts of interest, and that certain provisions of the Merger Agreement unduly restrict the Company's ability to negotiate with other potential bidders, and that the Form S-4 filed by Hilltop on May 29, 2014 omits or misstates certain material information. The complaint seeks relief that includes, among other things, an injunction prohibiting the consummation of the merger, rescission to the extent the merger terms have already been implemented, damages for the alleged breaches of fiduciary duty, and the payment of plaintiffs' attorneys' fees and costs. On June 16, 2014, plaintiffs moved for a preliminary injunction prohibiting the consummation of the merger, and for expedited proceedings in connection therewith. Pursuant to negotiations between the parties to the lawsuit, plaintiffs subsequently withdrew those motions. The Company believes the claims are without merit and intends to defend against them vigorously. There can be no assurance, however, with regard to the outcome of this lawsuit. Currently, a loss resulting from these claims is not considered probable or reasonably estimable in amount. SYNGENTA CORPORATION: Sued Over Dangers Caused by Viptera Corn -------------------------------------------------------------- Munson Brothers Farm, Aryl Sondgeroth, Matthew Sondgeroth and Union Line Farms, Inc. v. Syngenta Corporation, Syngenta Crop Protection, LLC, Syngenta Seeds, Inc., Case No. 1:14-cv-07806 (N.D. Ill., October 6, 2014), is brought against the Defendants for failure to provide adequate warning to farmers, grain elevators, grain exporters, and the general public regarding the dangers of planting, growing, harvesting, transporting, or otherwise using Viptera corn at the time Viptera corn was sold. The Defendants are engaged in the business of developing and selling, in interstate commerce, corn seed which includes certain genetically engineered traits. The Plaintiff is represented by: Edmund S. Aronowitz, Esq. Adam J. Levitt, Esq. GRANT & EISENHOFER, P.A. 30 North LaSalle Street, Suite 1200 Chicago, IL 60602 Telephone: (312) 214-0000 E-mail: earonowitz@gelaw.com alevitt@gelaw.com - and- Richard S. Lewis, Esq. James J. Pizzirusso, Esq. Mindy B. Pava, Esq. HAUSFELD LLP 1700 K St. N.W. Suite 650 Washington, D.C. 20006 Telephone: (202) 540-7200 E-mail: rlewis@hausfeldllp.com jpizzirusso@hausfeldllp.com mpava@hausfeldllp.com - and - Thomas V. Bender, Esq. WALTERS BENDER STROHBEHN & VAUGHAN, P.C. 2500 City Center Square, 1100 Main Street Kansas City, MO 64105 Telephone: (816) 421-6620 E-mail: tbender@wbsvlaw.com - and - Klint Bruno, Esq. THE BRUNO FIRM 134 North LaSalle Street, Suite 425 Chicago, IL 60602 Telephone: (312) 286-4915 E-mail: kb@brunolawchicago.com - and - Kim Stephens, Esq. Jason T. Dennett, Esq. TOUSLEY BRAIN STEPHENS PLLC 1700 Seventh Avenue, Suite 2200 Seattle, WA 98101 Telephone: (206) 682-5600 Facsimile: (206) 682-2992 E-mail: kstephens@tousley.com jdennett@tousley.com * * * Tom Meersman, writing for Star Tribune reports, that Minnetonka- based Syngenta Seeds is facing a potential billion-dollar backlash from farmers over a new variety of corn seed that producers in Minnesota and elsewhere grew and that China has refused to buy. Farmers filed class-action lawsuits in Minnesota, Illinois, Iowa, Missouri, Kansas and Nebraska federal courts against Syngenta Corp. and its seed and crop protection companies. The complaints claim that Syngenta "crippled" the U.S. corn export market to China and lowered domestic corn prices for all farmers. Minnetonka-based Cargill also sued Syngenta in September in a similar case. Syngenta issued a statement calling the latest lawsuits "without merit," and said it "strongly upholds the right of growers to have access to approved new technologies that can increase both their productivity and their profitability." At issue is corn seed that contains a genetically engineered trait, MIR 162, to protect corn against damage from more than a dozen insect species such as the corn borer and corn rootworm. Syngenta spent five to seven years and $200 million developing the trait, according to court documents. The company began selling it commercially to U.S. growers in 2011 as Agrisure Viptera, after approval by the U.S. Department of Agriculture in 2010. The issue is not that farmers object to Syngenta's right to manufacture genetically modified seed products, also known as GMOs. The problem, according to the lawsuits, is that Syngenta sold Viptera corn -- and farmers grew it -- before the product had been approved by China, one of the largest importers of U.S. corn in recent years. "The vast majority of U.S. corn has been effectively excluded from what was previously the third largest export market for U.S. corn," the complaints said, and U.S. farmers have lost sales and income of more than $1 billion. China is also the largest market overall for Minnesota agricultural exports, especially soybeans, according to federal and state reports. Last November, Chinese authorities turned away U.S. corn shipments that Cargill was delivering because the cargoes contained traces of the Viptera corn. Cargill was able to sell the GMO corn to other countries that have approved Viptera, but it claimed $90 million in damages from the Chinese rejections. Trans Coastal Supply Co. of Decatur, Ill., a major exporter of livestock feed products, also sued Syngenta in September. China has not decided yet whether to approve Viptera corn for import, and until then has adopted a zero-tolerance policy for accepting the product -- either in corn, or in dried distillers grain, a valuable byproduct of ethanol production used as animal feed. Minnesota farmer John Mages, who grows about 800 acres of corn and soybeans near Belgrade in Stearns County, said that he planted Viptera corn in 2013, but not in 2014. He said most of his Viptera corn was sold to a local ethanol plant, and he's not likely to join any class-action lawsuit. Even though Viptera was planted by a minority of U.S. farmers, the lawsuits said, it has been mixed with other corn in grain elevators, rail hopper cars, barges and oceangoing ships, effectively contaminating them with a product that China will not accept. The plaintiff in the Minnesota lawsuit, filed on Oct. 9, is Marlen Greer, a producer near Zumbro Falls. He grows non-GMO corn and claims that a recent crop was rejected by a terminal elevator because it tested positive for a GMO corn trait, according to the complaint, which "could only be as a result of cross-pollination from nearby fields." The National Grain and Feed Association estimated earlier this year that Chinese rejection of U.S. shipments also lowered domestic corn prices by 11 cents per bushel, leading to a projected loss of $1.14 billion for the last nine months of the marketing year that ended on August 31, 2014. Rather than waiting for China to approve Viptera corn, the lawsuits said, Syngenta "pushed its product on farmers" to enhance its profit margins, and is still doing so with plans to keep selling Viptera and Duracade, a similar product that was introduced and grown for the first time in 2014 and that also does not have China's approval. In its statement, Syngenta noted that the genetic trait in Viptera was approved by U.S. agencies in 2010, commercialized "in full compliance with regulatory and legal requirements," and approved for import in several major corn importing countries. "Farmers can have confidence in planting this innovative technology," the company stated on its website, because hybrids containing the Agrisure Viptera trait have been sold and planted in multiple countries. Japan and Mexico have been the top two importers of U.S. corn in recent years. Doug Albin, who grows corn and soybeans near Clarkfield in western Minnesota, said he has not purchased or grown Viptera corn, but he is troubled by the lawsuits. "I'm always concerned about what my customer wants," Mr. Albin said. "But on the flip side we can't allow foreign governments to dictate our technology and how we grow food in the United States." He called the situation a "dilemma," with all sides hiring attorneys. "Everybody's looking for someone to blame," Mr. Albin said. China is not against genetically modified crops, and in recent weeks has been promoting them in a media campaign, according to reports. China allows some GMO seeds to be cultivated, and has imported millions of tons of GMO soybeans in the past decade. China's interest in importing corn is more recent, and it purchased an estimated 5 million tons of foreign corn in 2012- 2013, up from 47,000 tons in 2008, according to the USDA. Michael Swanson, agricultural economist for Wells Fargo, said he's skeptical about China's zero-tolerance policy for Viptera corn. "It seems unusual given all the food safety issues that are occurring in China to believe that they have a better regulatory framework than we do," he said. Mr. Swanson said that in the past decade, China has made a habit of raising concerns about U.S. shipments at just the times when prices were changing significantly. "Typically it was when the market had peaked in price and was starting to come down, which allowed them to repurchase those same products much cheaper after the issue had been resolved," he said. Besides corn, he said, China had issues with U.S. cotton that fit the same pattern. "It always works out to their advantage," he said. "It's never the case where they have to end up paying more after they've made a decision." In the latest case, U.S. corn futures had soared to $8 a bushel in the summer of 2013, but had dropped almost 50 percent by the end of the year. Mr. Swanson said it's impossible to prove that China was using concerns about Viptera as a ploy to exit contracts for pricey corn, but it could be interpreted that way. "I call it the Wal-Mart effect," he said. "When someone becomes that big a part of your sales base, they have enormous leverage over you." TEXAS HEALTH: Potential Ebola Suits May Face Legal Challenges ------------------------------------------------------------- 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. 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. TOTAL TENNIS: Faces "Poblete" Suit Over Failure to Pay Overtime --------------------------------------------------------------- Hugo Carlos Poblete and Ofelia Armas Balderas, on behalf of themselves and others similarly situated v. Total Tennis Saugerties N.Y. LLC, Edward J. Fondiller, in his individual capacity, and Ellen Neilly in her individual capacity, Case No. 1:14-cv-01216 (N.D.N.Y., October 6, 2014), is brought against the Defendants for failure to pay overtime compensation. The Defendants own and operate a company that provides tennis and paddle training services to individuals in New York State. The Plaintiff is represented by: Andrea L. Callan, Esq. WORKER JUSTICE CENTER OF NEW YORK 9 Main Street Kingston, NY 12401 Telephone: (845) 331-6615 Facsimile: (845) 331-6617 E-mail: acallan@wjcny.org TOYOTA MOTOR: Court Affirms $15.6-Mil. Verdict in Dealership Suit ----------------------------------------------------------------- P.J. D'Annunzio, writing for The Legal Intelligencer, reports that the state Superior Court has affirmed a $15.6 million verdict awarded to a driver and passengers in a Toyota van who were injured when the vehicle malfunctioned and careened into a ravine. A three-judge panel in Lewis v. Toyota Motor upheld a Philadelphia jury's award of roughly $11.3 million to Dr. Noreen Lewis, the driver of the rented Toyota Sienna minivan, and roughly $4.3 million to the five passengers who rode with her. The verdict was rendered against the Center City Toyota and Ardmore, Pa., Toyota dealerships, which the plaintiffs claimed did not properly inspect the van for problems. Center City Toyota and Ardmore Toyota, referred to collectively as CCT by the court, requested a new trial, claiming the testimony of one of its expert witnesses was unfairly limited because he could not testify about the specifics of the accident. However, Judge Anne Lazarus wrote in a memorandum decision that CCT's auto mechanic expert, Timothy Hilsey, was not qualified to testify on the manner in which the accident occurred. "Hilsey was presented as an automotive mechanic, and, accordingly, the trial court qualified him only as an automotive mechanic expert. Additionally, Hilsey did not inspect the vehicle involved in the instant accident," Judge Lazarus said. "For these reasons, the trial court found that Hilsey's testimony regarding the speed of the car, the movement the tire made, or damage to the vehicle would have been purely speculative and outside his realm of expertise." On March 8, 2008, Dr. Lewis was driving the van from Philadelphia to Vestal, N.Y., accompanied by five family members. According to the trial court's summary, Dr. Lewis heard a "jerk" and shortly thereafter the steering wheel locked and the brakes failed. The van went off the road and rolled several times down a ravine. Dr. Lewis suffered a concussion, several fractured bones, lacerations to her face, ripped muscles, contusions to the lungs and heart, and disc and vertebrae injuries. Dr. Lewis' mother's injuries included a punctured lung and broken wrist while the other passengers suffered broken bones and back and neck pain. Dr. Lewis sued Toyota Motor Corp. for design defects in the van and CCT for failing to maintain the van, according to Lazarus. The passengers filed a separate suit. Toyota was dismissed from the litigation after its motion for summary judgment was granted. The plaintiffs alleged the van's steering wheel locked because of a separation from the ball joint, which occurred prior to the accident. According to Judge Lazarus, the plaintiffs further alleged that CCT improperly inspected the vehicle roughly three months before the accident by failing to follow the instructions in the Toyota Sienna maintenance manual. The jury rendered its verdict March 19, 2013, and was followed shortly thereafter by CCT's appeal. In addition to asserting that Mr. Hilsey should have been able to testify as to the nature of the accident, CCT argued that he should not have been prohibited from testifying about a particular page of the van's service manual, Lazarus said. At trial, Judge Lazarus said, the plaintiffs used a page from the manual to show that CCT had not followed the recommended maintenance procedure to inspect the van. The page was used during redirect examination of Mr. Hilsey and CCT sought to introduce an additional page to show that the procedure was optional. Judge Lazarus said the trial court disallowed introduction of the additional page because it had not been mentioned and was outside the scope of the redirect examination. "The page CCT sought to introduce indicated that the service method in the manual is 'very effective to perform repair and service' and provides warnings in the event other methods are used," Judge Lazarus said. "Even if this page demonstrates that other procedures might exist for inspection purposes, the information does not detract from plaintiffs' argument that the manual contains the recommended procedure." CCT also argued that the trial court erroneously prevented another expert, Lee Carr, to respond to plaintiffs' mechanic expert Dennis DeWane's testimony on the van's ball joint, ruling Mr. Carr's testimony was outside the scope of his pretrial report. Judge Lazarus said the trial court should have accepted Carr's expert testimony as "fair rebuttal." However, "although the trial court should have permitted Carr to testify in response to DeWane's testimony, its failure to do so was harmless error. Most of the substance of Carr's proposed testimony was admitted into evidence, either through Carr's testimony, or the testimony of CCT's other experts," Judge Lazarus said. John J. Hare -- jjhare@mdwcg.com -- of Marshall Dennehey Warner Coleman & Goggin represented the defendants and declined to comment. Thomas Duffy of Duffy + Partners represented Dr. Lewis and did not return a call seeking comment. TRUNKBOW INT'L: No Hearing Date Yet on Settlement Approval ---------------------------------------------------------- Trunkbow International Holdings Limited said in its Form 10-K Report filed with the Securities and Exchange Commission on September 25, 2014, for the fiscal year ended December 31, 2013, that the Court has not yet set a date for a hearing on the final approval of the Proposed Settlement in the Consolidated State Action. On November 8, 2012, a putative class action lawsuit was filed by a purported Trunkbow shareholder in District Court, Clark County, Nevada, captioned Hansen v. Trunkbow, et al., Case No. A-12- 671652-C (the "Hansen Action"). The complaint named as defendants several directors and officers of Trunkbow, namely, Wanchun Hou, Qiang Li, Jihong Bao, Xin Wang, Albert Liu, Regis Kwong, Kokhui Tan, Iris Geng, Tingjie Lv, Zhaoxing Huang and Dong Li (the "Individual Defendants"). Although Trunkbow was included among the defendants listed in the caption, the complaint did not assert a cause of action against the Company. The plaintiff in the Hansen Action sought recovery on behalf of all Trunkbow shareholders for alleged breaches of fiduciary duties by the Individual Defendants in connection with the proposed "going-private" transaction involving the acquisition of all of the outstanding shares of our common stock not beneficially owned by the Consortium Members at a price of US$1.46 per share in cash (the "Proposed Transaction"). On November 14, 2012, another putative class action lawsuit was filed by a purported Trunkbow shareholder in District Court, Clark County, Nevada, captioned Robert Davis v. Hou, et al., Case No. A- 12-671946-C (the "Davis Action"). Trunkbow was named as a defendant in this action, along with each of the Individual Defendants named in the Hansen complaint. The plaintiff in the Davis Action sought recovery on behalf of all Trunkbow shareholders for alleged breaches of fiduciary duties by the Individual Defendants in connection with the Proposed Transaction, and for aiding and abetting such alleged breaches by Trunkbow. The plaintiffs in both actions alleged that the share price proposed by Hou and Li was inadequate in light of the Company's intrinsic value and anticipated future growth. Among other things, the plaintiffs in both actions sought to enjoin the Proposed Transaction until such time as the Individual Defendants have acted in accordance with their fiduciary duties. Only the Company was served in the actions, but it had no obligation to respond to the complaints until after a transaction agreement had been signed and an amended complaint had been filed. After the Company announced that it had entered into a Merger Agreement with Parent on December 10, 2013 and filed a Preliminary Proxy Statement and Notice of Special Meeting of Stockholders on Schedule 14A with respect to the Merger on December 20, 2013 (the "Preliminary Proxy Statement") with the SEC, five additional putative class action lawsuits were filed between December 20, 2013 and January 7, 2014 in District Court, Clark County, Nevada, purportedly on behalf of all stockholders of the Company, other than the named defendants and their respective affiliates, asserting claims against Trunkbow, Parent, Merger Sub, Hou, Li and other members of the Board. The five actions are captioned as follows: Jason Lines v. Trunkbow Int'l Holdings Ltd., et al., Case No. A-13-693474-C, filed on December 20, 2013 (the "Lines Action"); William Morgan v. Hou, et al., Case No. A-13-693613-C, filed on December 26, 2013 (the "Morgan Action"); Troy Hertel v. Trunkbow Int'l Holdings Ltd., et al., Case No. A-13-693654-C, filed on December 27, 2013 (the "Hertel Action"); Lu Sun v. Trunkbow Int'l Holdings Ltd., et al., Case No. A-14-694023-C, filed on January 6, 2014 (the "Sun Action"); and Jean Fontaine v. Trunkbow Int'l Holdings Ltd. et al., Case No. A-14-694147-C, filed on January 7, 2014 (the "Fontaine Action"). The complaints generally alleged that the Merger Agreement was entered into as a result of an unfair process and for an unfair price and that the defendants breached, or aided and abetted the breach of, fiduciary duties to the Company's stockholders. In addition, the Morgan, Hertel, Sun and Fontaine Actions alleged that the Preliminary Proxy Statement omitted information necessary for it not to be materially misleading and asserted claims for violation of the duty of candor. On January 9, 2014, counsel for all the named plaintiffs in the Hansen, Lines, Morgan, Hertel, Sun and Fontaine Actions filed a motion seeking consolidation of all the filed actions (as well as any similar actions that may be filed) into a single proceeding, and for the appointment of lead plaintiffs, co-lead counsel, co- liaison counsel, and a plaintiffs' counsels' executive committee to oversee the litigation of a consolidated action. On January 10, 2014, the plaintiff in the Davis Action voluntarily dismissed the action without prejudice. On March 13, 2014, the Court entered an Order of Consolidation and Appointment of Lead Counsel, consolidating the remaining six actions under the caption In re Trunkbow International Holdings Limited Shareholders Litigation, No. A-12-671652-B (the "Consolidated State Action"), and appointing co-lead counsel, co- liaison counsel, and a plaintiffs' counsels' executive committee (collectively, the "Plaintiffs' Counsel"). The parties in the Consolidated State Action have reached a proposed settlement of those claims (the "Proposed Settlement"). On April 7, 2014, the Company filed a supplement to the Preliminary Proxy Statement with the SEC containing supplemental disclosures (the "Supplemental Disclosures") which form the basis for the Proposed Settlement. On April 11, 2014, the parties executed a Memorandum of Understanding (the "MOU") with respect to the Proposed Settlement. On August 6, 2014, the parties entered into a Stipulation of Settlement and Release (the "Settlement Stipulation") based on the terms in the MOU. In entering into the Proposed Settlement, the defendants expressly denied and continue to deny each and all of the claims and contentions alleged by the named plaintiffs in the Consolidated State Action, including but not limited to any allegation of wrongdoing, fault, liability, or damage to any of the named plaintiffs or the purported class, or that the disclosures and materials provided to Trunkbow shareholders regarding the Merger were incomplete or in any way misleading, that any additional disclosure was required under the SEC rules or any applicable legal principle, and that the Supplemental Disclosures were material. The defendants are entering into the Proposed Settlement solely to eliminate the distraction, burden, and expense of further litigation, and to fully and finally resolve all claims relating to the Merger. The defendants believe that they acted properly and fully complied with their fiduciary and other legal obligations at all times, believe the Consolidated State Action has no merit, and maintain that they have committed no disclosure violations or any other breach of duty whatsoever in connection with the Merger or any public disclosures. The Proposed Settlement is subject to the final approval of the court. Plaintiffs' Motion for Preliminary Approval of Proposed Settlement, Class Certification and Notice to Class Members (the "Proposed Settlement Motion") was filed on August 20, 2014. A hearing on the Proposed Settlement Motion was held on September 22, 2014, at which time, the Proposed Settlement was preliminarily approved. The Court has not yet set a date for a hearing on the final approval of the Proposed Settlement. TRUNKBOW INT'L: Federal Action Stayed Pending Settlement Approval ----------------------------------------------------------------- Trunkbow International Holdings Limited said in its Form 10-K Report filed with the Securities and Exchange Commission on September 25, 2014, for the fiscal year ended December 31, 2013, that the Court has not yet set a date for a hearing on the final approval of the Proposed Settlement in the Consolidated State Action. On January 22, 2014, a putative class action lawsuit was filed by a purported stockholder of the Company in the United States District Court for the District of Nevada, captioned Bornet Olivier v. Wanchun Hou et al., Case No. 2:14-cv-00106 (the "Federal Action"). Trunkbow and each of the Individual Defendants named in the Hansen complaint were named as defendants in the Federal Action. The plaintiff in the Federal Action sought recovery on behalf of all Trunkbow shareholders for alleged violations of Section 14(a) of the Securities Exchange Act of 1934 and Rule 14a-9 promulgated thereunder by the Company and the Individual Defendants, alleged violations of Section 20(a) of the Securities Exchange Act of 1934 by the Individual Defendants, and alleged breaches of fiduciary duties by the Individual Defendants in connection with the Proposed Transaction. The plaintiff in the Federal Action alleged that the share price proposed by Hou and Li was inadequate in light of the Company's intrinsic value and anticipated future growth and that the Preliminary Proxy Statement omitted information necessary for it not to be materially misleading. Among other things, the plaintiff sought to enjoin the Proposed Transaction until such time as the Company has implemented a process to obtain the highest possible value and provide all material disclosures in connection with the Proposed Transaction. Only the Company was served in the action. On May 30, 2014, the plaintiff in the Federal Action entered into a stipulation with the Company to stay the Federal Action pending final approval of the Proposed Settlement in the Consolidated State Action. VAN LOC: Faces "Valdez" Suit in Texas for Payment of OT Work ------------------------------------------------------------ Jose Valdez, Pedro Argueta, Francisco Navarette, Eduardo Guox, Doroteo Lasaro, and Oscar Martinez v. Van Loc Restaurant, Inc., and Kim Johnson, Case No. 4:14-cv-02842 (S.D. Tex., October 6, 2014), is brought against the Defendants for failure to pay overtime wages for worked in excess of 60 hours per week. The Defendants own and operate a Vietnamese restaurant in Houston, Texas. The Plaintiff is represented by: David I. Moulton, Esq. BRUCKNER BURCH PLLC 8 Greenway Plaza, Ste 1500 Houston, TX 77046 Telephone: (713) 877-8788 E-mail: dmoulton@brucknerburch.com VENDINI INC: $3 Mil. Settlement Gets Final Court Approval --------------------------------------------------------- Beth Winegarner and Andrew Scurria, writing for Law360, report that a California judge on Oct. 3 gave final approval to Vendini Inc.'s $3 million settlement in a class action accusing the ticket seller of compromising customer information when its servers were breached in 2013, including close to $1 million in attorneys' fees to plaintiffs' counsel. Santa Clara Superior Court Judge Peter Kirwan noted in his tentative ruling that the plaintiffs, Vendini customers who claim their information may have been at risk, faced an uphill battle given the fact that the ticket seller had adopted industry standard security protocols and had not made any agreements with customers regarding the use of their information. "Balanced against this reality is the $3 million settlement fund, which is not insubstantial," Judge Kirwan said. "The court finds that the settlement amount, balanced against the strength of plaintiffs' claims, is facially reasonable and fair." Under the deal, Vendini will pay $3 million into a settlement fund for the class. Plaintiffs' attorneys with Counselone PC will receive 30 percent of the pot plus up to $25,000 in costs. Lead plaintiffs Lanie Lim and John Lewert will receive $2,500 each, and class members may make claims for unreimbursed identity theft losses for up to $3,000 or for unreimbursed expenses of up to $1,000, according to the ruling. Judge Kirwan adopted his tentative ruling approving the settlement on Oct. 3. Ms. Lim and Mr. Lewert sued Vendini in January, seeking to represent a class of customers whose data was involved in the security breach. They received notice from Vendini in May of 2013 that the company's databases had been hacked in April by a third party who may have been able to access customers' personal information, including names, mailing address, email addresses, phone numbers, credit cards and expiration dates, court documents said. They accused Vendini of failing to implement and maintain policies and procedures that would protect customer data or to detect and prevent hackers from accessing it, according to the tentative ruling. The plaintiffs claimed they lost time and expenses dealing with the aftermath of the breach and suffered anxiety and fear of identity theft and fraud. Their lawsuit accused Vendini of false advertising under California law, violating the Consumer Legal Remedies Act, breach of contract, invasion of privacy and violating the Stored Communications Act and the Computer Fraud and Abuse Act, court documents said. The parties soon entered settlement talks, which included Vendini's insurer, St. Paul Fire & Marine Insurance Co., which sued the ticket seller not long after the breach. St. Paul asked a California federal court to declare $7 million in liability insurance off-limits to Vendini because it was facing the impending class action in state court. U.S. District Judge Susan Illston stayed St. Paul's case in March pending the outcome of settlement talks, court records show. The plaintiffs are represented by Justin Kachadoorian and Anthony J. Orshansky of Counselone PC and by Joseph Siprut of Siprut PC. Vendini is represented by Nancy Harris -- nharris@orrick.com -- of Orrick Herrington & Sutcliffe LLP. The case is Lim, et al. v. Vendini, Inc., case number 1-14-cv- 259897, in the Superior Court of California, County of Santa Clara. * Courts Leave Privacy Breach Victims Largely Powerless ------------------------------------------------------- Rabeh M. A. Soofi, writing for The Recorder, reports that so far, 2014 has been the year of the data breach. But despite the rise in privacy violations nationwide, state and federal courts are leaving victims of privacy breaches largely powerless. Recent court decisions addressing data breach cases have resulted in dismissals at the pleadings stage in favor of the facility or organization involved in the breach, slowly eroding consumer privacy protections and rendering the patchwork of applicable U.S. privacy laws toothless. The tide against privacy breach actions began turning after the U.S. Supreme Court's decision last year in Clapper v. Amnesty International (133 S. Ct. 113 (2013)). In Clapper, the court essentially ruled that in order to have standing in claims involving privacy violations, class action plaintiffs must show tangible financial damages, like the cost of credit monitoring services and unauthorized charges. Going on the Offensive After the case was decided, defendants involved in mass data breaches used Clapper to stave off plaintiffs' class action claims. Their efforts were successful. Since 2013, federal courts have tossed nearly all mass data breach cases out on 12(b) motions, on the basis that the putative plaintiffs failed to allege financial loss and thereby had no standing. This includes class actions in connection with breaches involving Trustwave Holdings' 2012 breach of 3.6 million Social Security numbers and other records on the South Carolina Department of Revenue and an Adobe Systems 2013 breach involving 38 million users. Almost every federal judge presented with the arguments in Clapper has granted the motion to dismiss, at least in part. The problem with Clapper is that it is basically impossible for plaintiffs to prove they suffered "actual financial injury" when it comes to privacy claims. Unless plaintiffs discover unauthorized charges on their credit cards or billing statements or receive bills or invoices for unordered products or services, Clapper ensures consumers have few if any avenues of recourse when made the subject of a mass data breach. Financial damages suffered by a putative class plaintiff are often not automatically imputed to all members of the class, and the lack of commonality between class members' alleged damages can destroy class certification. In July, the California Court of Appeal dismissed what may have been the largest health data breach class action in history. In a case involving the disclosure of 4.2 million patient records held by northern California-based Sutter Health, the court ruled that plaintiffs alleging breaches of medical information must allege their private medical information was actually "accessed" and not merely "possessed" by the unauthorized person, in order to be actionable as a data breach. The Sutter Health case came after two earlier, similar state Court of Appeal data breach decisions. Then in May, the court ruled in the matter involving Eisenhower Medical Center, holding that Eisenhower was not liable for a data breach involving the private information of more than 500,000 patients. The case arose following a theft of computers from Eisenhower's facilities containing the ages, birth dates, Social Security numbers, medical record numbers and names of patients. The court in Eisenhower ruled the disclosure of patient medical record numbers and demographic information did not constitute "medical" information and therefore was not actionable. Several months earlier, the California Court of Appeal issued a similar opinion, this time involving UCLA Health System in connection with a 2011 data breach of medical information belonging to 16,000 patients stored on a hard drive. The hard drive was apparently stolen from a physician's home during a robbery, causing the court to dismiss the claims on the grounds that there was no allegation or proof the stolen patient data was actually accessed or viewed by a third party. Holding Victims to a Higher Standard All three decisions heighten the type and nature of allegations required from victims of data breaches, despite the clear and unambiguous language of the governing state law -- in California's case, the Confidentiality of Medical Information Act, which permits nominal damages of $1,000 to be pursued in the event of a privacy breach involving patient records, in the absence of actual financial damage. As with Clapper, requirements that a litigant allege and prove negligently-stored information was actually released into the hands of a third party is close to impossible. Are consumers required to hunt down the privacy thief -- assuming the perpetrator is even located in the United States, which would be a rarity -- to determine what was done with the privacy information, whether it was "accessed" and how? From a practical perspective, the new requirements seem excessive and unnecessary; after all, individuals who are victims of regular theft do not have to prove what was actually done with their stolen goods. Why should victims of privacy breaches be held to higher standards? In privacy breach actions, the cases are brought because the entity charged with responsibility for the safekeeping of confidential information was not successful in preserving its confidentiality, and should be held responsible. Why then have recent court rulings on data breach cases been so unfavorable to consumers? The holdings handed down by federal and state courts seem to imply consumer data or private information has zero intrinsic value, given the consistent determination that a mere breach of data or private information, without resulting collateral or consequential financial harm, does not confer standing, as no cognizable injury has allegedly been sustained. These policy arguments, however, seem to be out of tune with reality. In February, the BBC confirmed a memory stick containing the personal data of 2,000 Barclay's customers was stolen and sold "as worth millions on the black market." Then, in June, a review of YouTube revealed dozens of videos selling stolen credit card information pilfered through the various data breaches involving blue chip companies earlier in the year. According to research by Javelin Strategy and Research, selling stolen customer data netted $18 billion in 2014. So if consumer data is being sold on the black market for millions and billions of dollars, why are state and federal courts coming to the conclusion the disclosure of private information does not automatically result in damage to the consumer? Government Enforcement The courts' proliferation of that value proposition -- that data breaches themselves result in no cognizable injury, absent proof of "financial harm" to the consumer -- has only impaired consumer civil redress. State and governmental agencies with enforcement power to pursue administrative actions in connection with privacy breaches have been totally unaffected. So far in 2014, the Office of Civil Rights and the Department of Health and Human Services has investigated 4,463 breaches involving medical information, which resulted in 3,470 corrective actions, compared with 339 investigations and 260 corrective actions in 2004. In the past year, OCR/HHS has obtained at least $10 million from investigating and fining facilities involved with the breaches of medical information. Jerome Meites, chief regional civil rights counsel at HHS, spoke at a recent American Bar Association conference in Chicago, saying the last year of enforcement will "pale in comparison" to enforcement actions planned for the next 12 months. There is no doubt consumer data has value, and mass privacy breaches of consumer financial or medical information do result in measurable damages to the consumer. Antitrust violations, securities fraud claims, false advertising and similar claims all allow injured individuals to bring civil claims against the perpetrators, independent and in spite of governmental enforcement action that may be brought in connection with the perpetrator's negligent or wrongful practices. Yet privacy breaches, on the other hand, seem to be treated differently. Privacy breaches have become an all-too-common occurrence. Personal consumer information is big business not only on the black market, but among companies in the U.S. and abroad, some of whom sell this information as their most valuable or only product. The state and federal governmental agencies charged with enforcing privacy laws place great emphasis on the importance of regulatory compliance -- but the real emphasis that must be made is on the consumer's right to seek redress for the violation of their private information. The stolen financial or medical information belongs to the consumer -- so should the right to pursue claims for its unauthorized disclosure. * Disgraced Class Action Lawyer Sells Home, Art Collections ----------------------------------------------------------- Nathalie Pierrepont, The Am Law Daily, reports that the former securities class action titan Melvyn Weiss is downsizing. The 79-year-old, Bronx-born Weiss, who pleaded guilty to participating in a kickback scheme six years ago, is selling a collection of more than 140 lithographs, etchings and figures by Pablo Picasso, according to a New York state regulatory filing and first reported by Bloomberg. His waterfront home in Oyster Bay Cove on Long Island's Gold Coast is also on the market for a cool $18.8 million. In 2008, Weiss, along with the three other partners behind New York-based Milberg Weiss Bershad & Schulman, one of the country's largest class action law firms, admitted to a racketeering conspiracy that allowed them to file legal actions on behalf of professional plaintiffs. From 1979 to 2005, the firm made an estimated $250 million in attorney fees, prosecutors said. Weiss was sentenced to two-and-a-half years in a minimum-security federal prison and was ordered to pay nearly $10 million in forfeitures and $250,000 in fines. Three of his former partners, William Lerach, David Bershad and Steven Schulman, were also implicated. Milberg Weiss, now known as Milberg, paid $75 million to settle federal charges. "I'm going to be 80 years old -- I'm downsizing," Mr. Weiss told The Am Law Daily in a phone interview on Oct. 7 when asked why he was selling his art collection and home. Mr. Weiss says he plans to continue spending time in Oyster Bay. He and his wife Barbara have seven grandchildren and Mr. Weiss notes that he is supporting his 104-year-old mother. Though Mr. Weiss was automatically disbarred after his guilty plea in 2008, The New York Times and others reported in 2011 that he was trying to edge his way back into the legal arena by working as a mediator. But on Oct. 7, Mr. Weiss says his involvement is limited. "Every now and then somebody calls me and I help them out," he says, adding that he's on the board of directors for the Israel Policy Forum, which promotes a two-state solution in the Arab- Israeli conflict. (A 2012 tax filing by the organization shows that Weiss averaged about seven hours per week working for the New York-based nonprofit.) Mr. Weiss maintains that he's "still charitable," although he did not disclose which organizations he supports. "I keep myself busy," he says. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Ma. Cristina Canson, Noemi Irene A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2014. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000 or Nina Novak at 202-241-8200. * * * End of Transmission * * *