/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/141028.mbx C L A S S A C T I O N R E P O R T E R Tuesday, October 28, 2014, Vol. 16, No. 214 Headlines 168 FIRST AVE: Fails to Pay Overtime Hours, "Andrade" Suit Says AGFEED INDUSTRIES: December 8 Settlement Fairness Hearing Set AIRWAIR INTERNATIONAL: Sued Over Failure to Protect Costumers ALLEGIANT HOME: Faces "Marte" Suit Over Failure to Pay Overtime AMERICAN HEALTH: Has Sent Unsolicited Advertisements, Suit Claims ARIZONA: Judge Weighs on Injunction Bid in Workplace Raid Suit AVANQUEST NORTH: Fix-It Does Not Detect or Fix Threats, Suit Says BANK OF AMERICA: Sued Over Illegal Manipulation of ISDAfix Rate BANK OF AMERICA: 3rd Cir. Affirms Dismissal of Class Action BANYON INVESTMENTS: SEC Enters Into Prelim. Settlement With Levin BERKOT LTD: Faces "Corbett" Suit Seeks to Recover Unpaid OT Wages BLACK BOX: Faces "Sierra" Suit Over Failure to Pay Overtime Wages BLT FISH: Does Not Properly Pay Employees, "Angel" Suit Claims BLUE SHIELD: Loses Bid to Nix Reconstructive Surgery Class Action CEC ENTERTAINMENT: "Wright" Suit Seeks to Recover Unpaid Overtime CGGVERITAS LAND: "Sharp" Suit Seeks to Recover Unpaid OT Wages CHESAPEAKE APPALACHIA: Judges Split on Class Arbitrability Issue CHRYSLER GROUP: Judge Certifies Class in Jeep Liberty Suit CLARK COUNTY: Illegally Collects Debt, "Blankenship" Suit Says CLP RESOURCES: Suit Seeks to Recover Unpaid Wages & Penalties COBRA CONSTRUCTION: "Lopez" Suit Seeks to Recover Unpaid Overtime COMPETITOR GROUP: Faces Class Action Over Labor Law Violation DAHILL OFFICE: Sued Over Breach of Fair Credit Reporting Act DIAMOND FOODS: Faces "McGee" Suit Over Unlawful Use of PHVO DIVERSEGY LLC: Faces "Anderson" Suit Over Failure to Pay Overtime EASTERN MUSHROOM: Reconsideration Bid in Antitrust Suit Tossed ELNA CO: Sued in Cal. Over Electrolytic Capacitors-Price Fixing EVERYWARE GLOBAL: Faces Investor Class Action in Pennsylvania FIRSTENERGY CORP: Sued Over Retiree Health-Care Subsidies GENERAL MOTORS: Sued Over Mishap Caused by Ignition Switch Defect GENERAL MOTORS: Class Suit Lawyers Broadens Ignition Switch Case GEORGIA: AG Mulls Appeal in Class Action Over Insurance Plan GLAXOSMITHKLINE: Judge Rejects Thalidomide Class Action GT ADVANCED: Faces "Favalora" Suit Over Misleading Fin'l Reports GT ADVANCED: Sued in D.N.H. Over Misleading Financial Reports GT ADVANCED: Wolf Popper Files Securities Class Action GT ADVANCED: Berger & Montague Files Securities Class Action GUAM: Faces Class Action Over Uncompensated Land Takings GUAM: Calvo Administration Reacts to Property Class Action HEALTH NET: Wants Judge to Seal Information on ERISA Settlement HOME DEPOT: Faces Anchor Bank Suit in Over Alleged Data Breach INDIANA: BMV Denies Allegations of Being Secretive on Overcharges ISSA NAILS: Faces "Ye" Suit Over Failure to Pay Overtime Wages JACKSON CIRTUS: Fla. Suit Seeks to Recover Unpaid Wages & Damages JEFFERSON CAPITAL: Sued in C.D. California Over Violation of TCPA LONDON SILVER: Sued in S.D. New York Over Silver-Price Fixing LUZERNE COUNTY, PA: Juvenile Victim Lawyers Want Windfall Frozen M-I LLC: "Shaffer" Suit Seeks to Recover Unpaid Wages & Damages MARC JACOBS: Suit Seeks to Recover Unpaid Minimum Wages and OT MARYLAND LIVE!: Faces Class Action Over Dealer Training MERCANTIL COMMERCEBANK: Sued Over Failure to Pay Overtime Wages MICROSOFT CORPORATION: Sued Over Manipulation of Workers Salary MILLENNIAL MEDIA: Sued Over Illegal Inflation of Stock Price MOTT'S LLP: Judge Trims "No Sugar Added" Class Action Claims NBCUNIVERSAL INC: Enters Into Deal to Resolve Intern Class Action NORCOLD INC: Judge Refuses to Approve Class Action Settlement NOVA SCOTIA: Class Action Lawyers Entitled to 17% of Settlement OCEAN CC: "Alonso" Suit Seeks to Recover Unpaid Overtime Wages OCWEN LOAN: Faces "Fox" Suit Over Illegal Collection of Plan Fees OXBOW CONSTRUCTION: Sup. Ct. Defends Ruling in Construction Suit PEAK CAMPUS: Has Sent Unsolicited Text Messages, Action Claims PITA HOUSE: Faces "Gonzalez" Suit Over Failure to Pay Overtime PLY GEM: Judge Appoints Robbins Geller as Class Action Counsel PRANA HOSPITALITY: Suit Seeks to Recover Unpaid Wages & Damages REDBUMPER LLC: Has Made Unsolicited Calls, "Zilberman" Suit Says REGENCY MANAGEMENT: Suit Seeks to Recover Unpaid Wages & Damages REGUS PLC: Can't Escape Class Action Over Undisclosed Fees SESAC: Settles Antitrust Class Action for $58.5 Million SOSH BRANDS: Sued in New York Over FLSA Violations SYNGENTA CORPORATION: Sued Over Damages Caused by Viptera Corn TRUMP MODEL: "Palmer" Suit in N.Y. Seeks to Recover Unpaid Wages WELLBENDERS DIRECTIONAL: Sued Over Failure to Pay Overtime Wages WEST VIRGINIA: Teachers' Retirement Fund Class Action Can Proceed WESTCONSIN CREDIT: Unlawfully Disclosed Personal Info, Suit Says WYNDHAM WORLDWIDE: Newark Judge Dismisses Shareholder Suit * Top Plaintiffs' Law Firms Show Higher Chances of Case Success ********* 168 FIRST AVE: Fails to Pay Overtime Hours, "Andrade" Suit Says --------------------------------------------------------------- Julio Andrade, Leobardo Rodriguez, and Luis Alberto Juarez, individually and on behalf of others similarly situated v. 168 First Ave Restaurant Ltd. (d/b/a Lanza's), Jose Alonso, Aristizabal Edilson and John Doe, Case No. 1:14-cv-08268 (S.D.N.Y., October 16, 2014), is brought against the Defendant for failure to pay overtime wages for work in excess of 40 hours per week. The Defendants own, operate, or control an Italian restaurant located at 168 First Avenue, New York, New York 10009 under the name Lanza's. The Plaintiff is represented by: Michael Antonio Faillace, Esq. MICHAEL FAILLACE & ASSOCIATES, P.C. 60 East 42nd Street, Suite 2020 New York, NY 10165 Telephone: (212) 317-1200 Facsimile: (212) 317-1620 E-mail: faillace@employmentcompliance.com AGFEED INDUSTRIES: December 8 Settlement Fairness Hearing Set ------------------------------------------------------------- Pomerantz LLP on Oct. 16 issued a statement in regards to the announcement of a proposed class action settlement. UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION LAWRENCE BLITZ, Individually and On Behalf of All Others Similarly Situated, No. 3:11-cv-0992 Plaintiff, v. CONSOLIDATED CLASS ACTION AGFEED INDUSTRIES, INC., JOHN A. STADLER, GERARD DAIGNAULT, CLAY MARSHALL, EDWARD PAZDRO, ARNOLD STALOFF, FREDERIC RITTEREISER, IVAN GOTHNER, SONGYAN LI, SELINA JIN, LIANGFAN YAN, JUNHONG XIONG, GOLDMAN KURLAND & MOHIDIN, LLP, AND MCGLADREY & PULLEN LLP Chief Judge Todd J. Campbell Magistrate Judge E. Clifton Knowles SUMMARY NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION AND SETTLEMENT HEARING Defendants. EXHIBIT 2 SUMMARY NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION, MOTION FOR ATTORNEYS' FEES AND EXPENSES, AND FINAL APPROVAL HEARING TO: ALL PERSONS AND ENTITIES THAT PURCHASED OR OTHERWISE ACQUIRED AGFEED INDUSTRIES, INC. ("AGFEED") SECURITIES (STOCK SYMBOL: FEED) DURING THE PERIOD FROM MARCH 16, 2009 THROUGH AND INCLUDING SEPTEMBER 29, 2011, BOTH DATES INCLUSIVE (THE "CLASS PERIOD"). Excluded from the Class are Defendants, all current and former directors and officers of AgFeed during the Class Period, members of their families and their legal representatives, heirs, successors or assigns and any entity in which Defendants have or had a controlling interest. YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules of Civil Procedure and an Order of the United States District Court for the Middle District of Tennessee, that a settlement of the above-captioned class action has been proposed. A hearing will be held on December 8, 2014, at 12:00 p.m., before the Honorable Todd J. Campbell, United States District Judge, at the courthouse for the United States District Court, Middle District of Tennessee, Nashville Division, Courtroom 874, 801 Broadway, Nashville, Tennessee 37203 for the purpose of determining, among other things: (1) whether a Settlement Class should be certified for purposes of the Settlement and whether Class Plaintiffs and their counsel have adequately represented the Class Members; (2) whether the proposed Settlement of the Class's claims against the Defendants for Seven Million Dollars ($7,000,000) should be approved as fair, reasonable and adequate; (3) whether the proposed Plan of Allocation is fair, just, reasonable, and adequate; (4) whether the Court should permanently enjoin the assertion of any claims that arise from or relate to the subject matter of the Action; (5) whether the Action should be dismissed with prejudice against the Defendants as set forth in the Stipulation of Settlement filed with the Court; (6) whether the application by Lead Counsel for an award of attorneys' fees and expenses should be approved; and (7) whether the Lead Plaintiffs' application for reimbursement of costs and expenses should be granted. If you purchased or otherwise acquired AgFeed Securities between March 16, 2009 through and including September 29, 2011, your rights may be affected by this Action and the Settlement thereof. If you have not received the detailed Notice Of Proposed Settlement Of Class Action, Motion For Attorneys' Fees And Expenses, And Final Approval Hearing (the "Notice") and Proof of Claim and Release Form, you may obtain them free of charge by contacting the Claims Administrator, by mail at: Blitz v. AgFeed, Industries, Inc., c/o Claims Administrator, P.O. Box 3207, Portland, OR. 97208-3207; by telephone at: 800-625-7675; or by visiting the Settlement website www.AgFeedSecuritiesLitigation.com If you are a member of the Class and wish to share in the Settlement money, you must submit a Proof of Claim no later than December 31, 2014 establishing that you are entitled to recovery. As further described in the Notice, you will be bound by any judgment entered in the Action, regardless of whether you submit a Proof of Claim, unless you exclude yourself from the Class in accordance with the procedures set forth in the Notice by no later than November 23, 2014. Any objections to the Settlement, Plan of Allocation or attorney's fees and expenses must be filed and served in accordance with the procedures set forth in the Notice no later than November 24, 2014. Inquiries, other than requests for the Notice, may be made to Lead Counsel for the Class: Joshua B. Silverman, Esq. Pomerantz LLP 10 South La Salle Street, Ste. 3505 Chicago, IL 60603 E-mail: jbsilverman@pomlaw.com INQUIRIES SHOULD NOT BE DIRECTED TO THE COURT, THE CLERK'S OFFICE, THE DEFENDANTS, OR DEFENDANTS' COUNSEL DATED: October 2, 2014 BY ORDER OF THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE, NASHVILLE DIVISION AIRWAIR INTERNATIONAL: Sued Over Failure to Protect Costumers ------------------------------------------------------------- Jason Vasquez, on behalf of himself and others similarly situated v. Airwair International, Ltd., R. Griggs Group, Ltd. and Dr. Martens Airwair USA LLC, Case No. 1:14-cv-08304 (S.D.N.Y., October 16, 2014), is brought against the Defendants for failure to protect the Plaintiff against identity theft and credit card and debit card fraud by continuing to print the expiration date on paper receipts that they provided to the Plaintiff at the point of sale. The Defendants manufacture and sell shoes and sandals for men and women. The Plaintiff is represented by: Alexander Todd Coleman, Esq. Michael John Borrelli, Esq. LAW OFFICES OF BORRELLI & ASSOCIATES 1010 Northern Blvd., St. 328 Great Neck, NY 11021 Telephone: (516) 248-5550 Facsimile: (516) 248-6027 E-mail: atc@employmentlawyernewyork.com mjb@employmentlawyernewyork.com ALLEGIANT HOME: Faces "Marte" Suit Over Failure to Pay Overtime --------------------------------------------------------------- Saida Marte v. Allegiant Home Care, LLC, and David Jones, individually, Case No. 1:14-cv-06090 (E.D.N.Y., October 17, 2014), is brought against the Defendants for failure to pay overtime wages for work in excess of 40 hours per work week. The Defendants own and operate a home health care facility located at 369 East 148th Street, Lower Level, Bronx, New York, 10455. The Plaintiff is represented by: Jodi Jill Jaffe, Esq. JAFFE GLENN LAW GROUP, P.A. Building 2, Suite 220 168 Franklin Corner Road Lawrenceville, NJ 08648 Telephone: (201) 687-9977 Facsimile: (201) 595-0308 E-mail: jjaffe@jaffeglenn.com AMERICAN HEALTH: Has Sent Unsolicited Advertisements, Suit Claims ----------------------------------------------------------------- J. Barrett Company, an Illinois corporation, individually and as the representative of a class of similarly situated persons v. American Health Service Sales Corporation and John Does 1-10, Case No. 1:14-cv-08158 (N.D. Ill., October 17, 2014), is brought against the Defendant for sending facsimile transmissions of unsolicited advertisements to the Plaintiff and the Class. American Health Service Sales Corporation is engaged in wholesale distribution of surgical and other medical instruments, apparatus, and equipment. The Plaintiff is represented by: Brian J. Wanca, Esq. ANDERSON & WANCA 3701 Algonquin Road, Suite 760 Rolling Meadows, IL 60008 Telephone: (847) 368-1500 E-mail: buslit@andersonwanca.com ARIZONA: Judge Weighs on Injunction Bid in Workplace Raid Suit -------------------------------------------------------------- D.S. Woodfill and Megan Cassidy, writing for The Republic, report that a U.S. District Court judge is weighing a request for injunction that would prevent Sheriff Joe Arpaio from conducting his workplace raids and the Maricopa County Attorney's Office from prosecuting them. Judge David G. Campbell said he would issue a ruling as quickly as possible following arguments on Oct. 16. Attorneys representing immigrant-rights group Puente, the American Civil Liberties Union and several other plaintiffs filed the motion for a preliminary injunction shortly after filing a class- action lawsuit in June, which seeks to eliminate the last legal footing Sheriff Arpaio has to conduct his own brand of immigration enforcement using workplace raids. The motion sought to preclude the Maricopa County Sheriff's Office and County Attorney's Office from enforcing two state provisions in identity-theft laws that critics say are intended to target undocumented immigrants, at least until a judge decides whether to strike down those laws for good. Immigration advocates said the state statutes, passed in 2007 and 2008, were written in such a way to make life so difficult on undocumented immigrants that they decide to "self-deport." They also allege that the state statutes cracking down on identity theft are preempted by federal law. Attorneys representing the offices of Sheriff Arpaio and County Attorney Bill Montgomery have argued that the class-action suit should be dismissed, in part because those who filed the case lack legal standing. They additionally opposed the motion for a preliminary injunction, saying that the plaintiffs were not likely to succeed on the merits of their claims and haven't shown sufficient, irreparable injury to the plaintiffs. Arizona lawmakers added new language to identity-theft laws that criminalized the use of the information of "another person, including real or fictitious person, with the intent to obtain employment." Workplace raids soon became one of Sheriff Arpaio's trademark operations, and scenes of deputies swarming Valley establishments became a fixture on local news stations. Absent court intervention, the plaintiffs' attorneys said their clients faced "imminent arrest and prosecution under the challenged provisions, and ongoing fear and distress." Annie Lai, a lawyer from the University of California-Irvine School of Law's Immigrant Rights Clinic, said the ulterior motive of the legislators was to target undocumented immigrants. She cited a comment by former state Sen. Tom O'Halleran, R-Sedona, stating his intent was to make sure those committing fraud would be charged with a crime that was so serious, it would keep them locked up while the case was pending and until they were deported. Lawyers for the defendants -- Sheriff Arpaio, Montgomery and Arizona Attorney General Tom Horne -- challenged the motion on several fronts, arguing that nowhere in the legislation does it mention anything about immigrants or immigration enforcement. The law is simply to crack down on any worker who steals another person's identity to obtain employment. Both sides were optimistic and upbeat about their chances following last week's hearing. "I thought we did great," said ACLU attorney Dan Pochoda. "I thought that we were very well-prepared. I thought that the judge showed great interest. He showed that he had read the papers, understood the issues. I'm optimistic." Deputy Chief Jack MacIntyre of the Sheriff's Office also expressed confidence and said the state would prevail. "This is clearly a statute that is enacted that goes across the board," Mr. MacIntyre said. "It is not pre-empted by federal immigration law because it's a state criminal statute that applies to everyone." AVANQUEST NORTH: Fix-It Does Not Detect or Fix Threats, Suit Says ----------------------------------------------------------------- Amy Joseph, individually, and on behalf of all others similarly situated v. Avanquest North America, Inc., and Avanquest Software, S.A., Case No. 2014-CH-16729 (Ill. Cir. Ct., Cook Cty., Oct. 15, 2014) arises from the Defendants' sale of Fix-It Utilities. The Defendants are computer software companies that develop and distribute the software known as "Fix-It Utilities." Fix-It is intended to protect users' computers from security risks, remove harmful software errors, and improve computer performance and speed. However, the Plaintiff contends, Fix-It does not actually detect nor fix any real security threats. Instead, it identifies commonly occurring and benign lines of computer code and erroneously marks them as harmful. Avanquest North America is a California corporation headquartered in Calabasas, California. Avanquest Software S.A. is a French company with its principal place of business located in La Garenne Colombes, France. Avanquest does business in the state of Illinois, Cook County, and nationwide. The Plaintiff is represented by: Thomas A. Zimmerman Jr., Esq. Adam M. Tamburelli, Esq. Frank J. Stretz, Esq. ZIMMERMAN LAW OFFICES, P.C. 77 West Washington St., Suite 1220 Chicago, IL 60602 Telephone: (312) 440-0020 Facsimile: (312) 440-4180 BANK OF AMERICA: Sued Over Illegal Manipulation of ISDAfix Rate --------------------------------------------------------------- Magnolia Regional Health Center, on behalf of itself and all others similarly situated v. Bank of America Corporation, et al., Case No. 1:14-cv-08342 (S.D.N.Y., October 17, 2014), arises out of the Defendant's multi-year conspiracy to manipulate ISDAfix, a scheme that caused billions of dollars damages to the Plaintiff and other members of the proposed Class. ISDAfix is a published interest rate that was intended to serve as a transparent and reliable benchmark for the marketplace -- a snapshot of average fixed interest rates for swaps of various terms. Bank of America Corporation is a Delaware corporation, with its principal place of business in Charlotte, North Carolina, and with branch locations in New York, New York. The Plaintiff is represented by: Shelly L. Friedland, Esq. TRIEF & OLK 150 East 58th Street 34th Floor New York, NY 10155 Telephone: (212)486-6060 Facsimile: (212)317-2946 E-mail: sfriedland@triefandolk.com - and - Michael Dell'Angelo, Esq. BERGER & MONTAGUE, P.C. 1622 Locust Street Philadelphia, PA 19103 Telephone: (215)875-3000 Facsimile: (215)875-4604 E-mail: mdellangelo@bm.net - and - R. Bryant McCulley, Esq. McCULLEY McCLUER PLLC 2113 Middle Street, Suite 208 Sullivan's Island, SC 29482 Telephone: (205)238-6757 Facsimile: (662)368-5806 E-mail: bmcculley@mcculleymccluer.com - and - Stuart H. McCluer, Esq. 1223 Jackson Avenue East, Suite 200 Oxford, MS 38655 Telephone: (662)550-4511 Facsimile: (662)368-5806 E-mail: smccluer@mcculleymccluer.com - and - Matthew Duncan, Esq. FINE, KAPLAN AND BLACK, R.P.C 1 South Broad St., 23rd Floor Philadelphia, PA 19107 Telephone: (215)567-6565 Facsimile: (215)568-5872 E-mail: md@finekaplan.com BANK OF AMERICA: 3rd Cir. Affirms Dismissal of Class Action ----------------------------------------------------------- Paul DeBenedetto, writing for Law360, reports that the Third Circuit on Oct. 15 affirmed the dismissal of a class action against Bank of America NA alleging the company made millions off of illegal referrals from private insurance companies, affirming a lower court's opinion that the claims brought under the Real Estate Settlement Procedures Act were time-barred. The Third Circuit opinion held that the two putative class plaintiffs who appealed the decision, Thomas Riddle and Marilyn Fischer, did not exercise sufficient diligence in investigating potential claims that BofA took a hefty cut of homeowners' insurance premiums while taking on little risk. Although the plaintiffs argued that they had no reason to suspect wrongdoing between closing on their homes in 2005 and being contacted by attorneys in 2012, the Third Circuit held that they had a responsibility to take action in determining whether reinsurance arrangements with BofA were legal. "They simply accepted the defendants' representation that the arrangement was legal, and went about their lives for the next seven years, conducting no investigation at all during that time," the opinion said. "Taking the defendants' representations at face value without asking a single question for seven years is insufficient diligence to toll the statute of limitations in these circumstances." The opinion comes two years after the original complaint, which alleged that BofA participated in a pay-to-play scheme in which the lending giant referred the plaintiffs to insurers in return for a portion of their reinsurance premium payments, taking on little risk in the process. According to the complaint, BofA received a $285 million cut of the premiums while paying out just $39 million. A separate but nearly identical class action brought one day later by the same attorneys against Fifth Third Bank NA alleged that the bank made $54 million while paying less than $5 million. By placing only a small amount of capital into the trusts backing the reinsurance contracts, the insurers took on essentially all of the risk, according to the suits. The actions of both banks violated the Real Estate Settlement Procedures Act, reduced competition and boosted premiums, according to the suits. "Amounts paid to lenders as unlawful kickbacks have become a part of the cost of doing business for private mortgage insurers," the suits said. "As a result, private mortgage insurance premiums incorporate the payment of such kickbacks -- to the detriment of consumers and in contravention of the stated purpose of RESPA." In April 2013, BofA tried to escape the suit by arguing that the 2012 complaint missed the RSPA's one-year statute of limitations because its claims were from between 2005 and 2007. But U.S. District Judge Berle M. Schiller said the statute could be tolled if the plaintiffs could prove that the bank engaged in fraudulent concealment that the plaintiffs unknowingly relied on. After discovery in November, Judge Schiller found that the plaintiffs offered up no such evidence, and dismissed the case against BofA and insurance companies United Guaranty Residential Insurance Co. and Genworth Mortgage Insurance Corp. "The clock has run on plaintiffs' RESPA claims and despite ample opportunity, they are unable to create a triable fact that they are entitled to equitable tolling," Judge Schiller wrote. The plaintiffs are represented by Terence S. Ziegler -- Edward W. tziegler@ktmc.com -- Ciolko Edward W. Ciolko -- eciolko@ktmc.com -- and Michael K. Yarnoff of Kessler Topaz Meltzer & Check LLP by Alan R. Plutzik -- aplutzik@bramsonplutzik.com -- of Bramson Plutzik Mahler & Birkhaeuser LLP and Andre L. Berke of Berke Berke & Berke. Genworth Mortgage Insurance Corp. is represented by Nicholas M. Centrella -- ncentrella@conradobrien.com -- and Aya M. Salem -- asalem@conradobrien.com -- of Conrad O'Brien PC and Reid L. Ashinoff and Benito Delfin Jr. of Dentons. United Guaranty Residential Insurance Co. is represented by David E. Edwards -- edwardsd@whiteandwilliams.com -- of White and Williams LLP. BofA defendants are represented by David L. Permut -- dpermut@goodwinprocter.com -- and Matthew S. Sheldon -- msheldon@goodwinprocter.com -- of Goodwin Procter LLP and by Martin C. Bryce Jr. -- bryce@ballardspahr.com -- and Daniel J.T. McKenna -- mckennad@ballardspahr.com -- of Ballard Spahr Andrews & Ingersoll LLP. The case is Thomas J. Riddle et al. v. Bank of America Corp. et al., case number 2:12-cv-01740, in the United States District Court for the Eastern District of Pennsylvania. BANYON INVESTMENTS: SEC Enters Into Prelim. Settlement With Levin ----------------------------------------------------------------- John Pacenti, writing for Daily Business Review, reports that the Securities and Exchange Commission announced on Oct. 21 that it has reached a preliminary settlement with George Levin, who ran the main feeder fund for Scott Rothstein's $1.2 billion Ponzi scheme. SEC attorney Amie Berlin told U.S. District Judge Ursula Ungaro in Miami that an agreement had been reached but must be approved by SEC officials. Judge Ungaro issued a stay in the trial scheduled to start Oct. 22 for the leader of Banyon Investments LLC. It would only have been the third jury trial associated with a Ponzi scheme that has seen convictions against 26 lawyers, professionals and others for crimes directly or indirectly associated with Mr. Rothstein's criminal activities. Mr. Rothstein is serving a 50-year prison sentence. The Ponzi scheme run from the Fort Lauderdale law firm of Rothstein Rosenfeldt Adler peddled a scheme where investors supposedly bought confidential lawsuit settlements at a discount, but the settlements didn't exist. The SEC's announcement in court came after the parties met on Oct. 18 for a final mediation at the urging of Ungaro. The deal follows a settlement by Frank Preve, Banyon's chief executive officer who was also named in the SEC complaint. He agreed to testify against Mr. Levin at trial. Banyon allegedly lost $775 million in Mr. Rothstein's fraud. Mr. Preve also pleaded guilty to criminal charges that he swindled Rothstein investors out of $20 million and is awaiting sentencing. The sticking point for negotiations with Levin was the agency's demand for a $157 million disgorgement plus a civil fine. After the Ponzi imploded five years ago, Mr. Levin and Banyon filed for bankruptcy protection. Mr. Levin's attorney, Daniel L. Rashbaum, a partner at Marcus Neiman & Rashbaum in Miami, said he could not comment about the details of any settlement between the SEC and his client. BERKOT LTD: Faces "Corbett" Suit Seeks to Recover Unpaid OT Wages ----------------------------------------------------------------- Joni L. Corbett, Individually and on behalf of other similarly situated individual employees of Berkot, Ltd. d/b/a Berkot's Super Foods v. Berkot, Ltd. d/b/a Berkot's Super Foods, an Illinois Limited Liability Company and Does I through XX, inclusive, Case No. 1:14-cv-08071 (N.D. Ill., October 16, 2014), seeks to recover unpaid overtime compensation, liquidated damages, costs, attorneys' fees pursuant to the Fair Labor Standards Act. The Defendants own and operate a grocery retail store in Illinois. The Plaintiff is represented by: Betty Tsamis, Esq. TSAMIS LAW FIRM, P.c. 1509 W. Berwyn, Suite 201e Chicago, IL 60640 Telephone: (866) 703-5509 E-mail: btsamis@tsamislaw.com BLACK BOX: Faces "Sierra" Suit Over Failure to Pay Overtime Wages ----------------------------------------------------------------- Victor Sierra, Individually and on behalf of all others similarly situated v. Black Box Corporation of Pennsylvania d/b/a Black Box Network Services, Black Box Network Services, Inc. - Government Solutions, and Black Box Corporation, Case No. 1:14-cv-23776 (S.D. Fla., October 14, 2014), is brought against the Defendant for failure to pay overtime compensation. That Defendants are engaged in the business of providing communications lifecycle services, unified communications, structured cabling, video/AV services, in-building wireless and data center services. The Plaintiff is represented by: Mitchell Lloyd Feldman, Esq. FELDMAN MORGADO, P.A. 501 North Reo Street Tampa, FL 33609 Telephone: (813) 639-9366 Facsimile: (813) 639-9376 E-mail: mfeldman@ffmlawgroup.com BLT FISH: Does Not Properly Pay Employees, "Angel" Suit Claims -------------------------------------------------------------- Uriel Angel, on behalf of himself and others similarly situated v. BLT Fish, LLC d/b/a BLT Fish and BLT Fish Shack, Eduard Petrescu, and John Does 1-10, Case No. 1:14-cv-08318 (S.D.N.Y., October 17, 2014), is brought against the Defendant for failure to pay proper overtime compensation under the Fair Labor Standards Act. The Defendants own and operate a full service restaurant and event space accommodating corporate meetings, luncheons, bridal parties, and large and small private events. The Plaintiff is represented by: Giustino Cilenti, Esq. CILENTI & COOPER, P.L.L.C. 708 Third Avenue, 6th Flr New York, NY 10017 Telephone: (212) 209-3933 Facsimile: (212) 209-7102 E-mail: jcilenti@jcpclaw.com BLUE SHIELD: Loses Bid to Nix Reconstructive Surgery Class Action ----------------------------------------------------------------- Daniel Siegal and Jeff Sistrunk, writing for Law360, report that a California judge on Oct. 15 said evidence was needed to determine if state law required Blue Shield of California to have a reconstructive surgeon review any denial of a request for reconstructive surgeries, rebuffing the insurer's bid for a quick win in a putative class action over coverage denials. Blue Shield had moved to strike the plaintiff's claim that the insurer was violating A.B. 1621, a state law requiring health insurance providers to cover reconstructive surgery where the procedure would resolve a functional problem or create a normal appearance, by not having reconstructive surgeons review any denial of a request for a reconstructive surgery. During the Oct. 15 hearing, Gregory Pimstone -- gpimstone@manatt.com -- of Manatt Phelps & Phillips LLP, representing Blue Shield, urged Los Angeles Superior Court Judge Jane L. Johnson to change her tentative ruling partially denying the motion to strike, arguing that the statute does not actually require that a reconstructive surgeon review denials and that such a requirement would run counter to the state's standards for insurance review. "It has never been the case in the industry, the [state] regulator has never required . . . a health plan to look at every request that comes in, and if it's in a particular specialty, have the request decided in the first instance by a specialist in that specialty," he said. "That would be creating a separate and different rule just for reconstructive surgery that is not applied anywhere else in the industry." Judge Johnson, however, said that until evidence could be submitted on the prior interpretation of the statute and other aspects, it was too early to rule on the matter. Named plaintiffs Sabra Akmal and Deborah Portillo filed suit in March, alleging Blue Shield violated California's Unfair Competition Law by failing to comply with A.B. 1621. The statute requires that decisions regarding normal appearance be made by a reconstructive surgeon, according to the complaint. Both Ms. Akmal and Ms. Portillo developed "disfiguring" excess skin due to significant weight loss, according to the complaint. Both sought coverage from Blue Shield for reconstructive surgery to correct their conditions but were denied on the grounds that the procedures were not "medically necessary," the suit said. Blue Shield didn't consider in either case whether the proposed surgery would return the patient to a normal appearance, as required by law, and the decisions to deny coverage were not made with the input of a reconstructive surgeon, according to the complaint. When Ms. Portillo appealed the denial of coverage, Blue Shield upheld the decision on the grounds that her condition didn't meet the "medically necessary" criteria under its policy because her medical records didn't show that she had filled prescriptions to treat her persistent skin infections, according to the suit. Blue Shield has deemed that certain forms of reconstructive surgery, such as brachioplasty and blepharoplasty, are never to be eligible for coverage, regardless of whether abnormal skin conditions are causing a functional problem or can be returned to a normal appearance, the suit says. According to the plaintiffs, even when Blue Shield has surgeons weigh in on requests for reconstructive surgery, it fails to provide them with the appropriate standard for determining whether a procedure falls under the law. Ms. Akmal and Ms. Portillo are seeking to represent a class of all California residents who have had requests for reconstructive surgery denied under Blue Shield health plans within the applicable four-year statute of limitations. The class excludes individuals covered under Employee Retirement Income Security Act, Federal Employees Health Benefits Act and Medi-Cal plans. On Oct. 15, Judge Johnson did dismiss the plaintiffs' claim that Blue Shield is liable when a medical center, not the insurer, denies a Blue Cross insured's request for reconstructive surgery, but she granted leave to amend so the plaintiffs could try to show that Blue Cross' policy was directly responsible for those rejections. The plaintiffs are represented by Robert S. Gianelli and Adrian Barro of Gianelli & Morris and Ronald A. Marron. Blue Shield is represented by Gregory Pimstone of Manatt Phelps & Phillips LLP. The case is Sabra Akmal et al. v. California Physicians' Service d/b/a Blue Shield of California, case number BC540033, in the Superior Court of the State of California, County of Los Angeles. CEC ENTERTAINMENT: "Wright" Suit Seeks to Recover Unpaid Overtime ----------------------------------------------------------------- Wiley Wright, individually and on behalf of all others similarly situated v. C.E.C. Entertainment, Inc. d/b/a Chuck E. Cheese's, and Apollo Global Management, LLC, Case No. 1:14-cv-06110 (E.D.N.Y., October 17, 2014), seeks to recover unpaid overtime compensation. The Defendants own and operate Chuck E. Cheese's restaurant throughout New York. The Plaintiff is represented by: Rachel M. Bien, Esq. Juno Turner, Esq. OUTTEN & GOLDEN LLP 3 Park Avenue, 29th Floor New York, NY 10016 Telephone: (212) 245-1000 Facsimile: (212) 977-4005 E-mail: rmb@outtengolden.com jturner@outtengolden.com CGGVERITAS LAND: "Sharp" Suit Seeks to Recover Unpaid OT Wages -------------------------------------------------------------- R. Dane Sharp, individually and on behalf of all similarly situated v. Cggveritas Land (U.S.) Inc., Case No. 4:14-cv-00614 (N.D. Okla., October 14, 2014), seeks to recover overtime compensation, liquidated damages, attorneys' fees and costs under the Fair Labor Standards Act. Cggveritas Land (U.S.) Inc. gathers and provides seismic data for exploration sites. The Plaintiff is represented by: Jess Vince Hightower, Esq. J. VINCE HIGHTOWER LAW OFFICE 410 W 7th St Ste 1125 Tulsa, OK 74119 Telephone: (918) 232-3573 E-mail: jvh255@aol.com CHESAPEAKE APPALACHIA: Judges Split on Class Arbitrability Issue ---------------------------------------------------------------- Gina Passarella, writing for The Legal Intelligencer, reports that in the wake of a Third Circuit ruling as to whether the court or the arbitrator determines if a case is suitable for class arbitration, two district judges in the Middle District of Pennsylvania split on how to apply the ruling to separate putative class cases involving the same energy company. Chesapeake Appalachia sought declaratory judgment in two cases -- one against proposed class representatives Russell and Gayle Burkett and another against proposed lead plaintiff Scout Petroleum -- that the court and not an arbitration panel can determine whether the underlying cases can proceed as class arbitrations under the parties' oil and gas lease agreements. Within a day of one another, Chesapeake received two different rulings, both interpreting a July opinion from the U.S. Court of Appeals for the Third Circuit in Opalinski v. Robert Half International. According to the two district court rulings from U.S. District Judges Matthew W. Brann and Malachy E. Mannion, Opalinski was a game-changer on the "who decides" issue and held that the court decides the issue of class arbitrability unless the parties' contract includes a clear agreement that the arbitrator will decide the issue. The U.S. Supreme Court has yet to rule on the "who decides" issue, the district judges noted. In both Burkett v. Chesapeake Appalachia and Scout Petroleum v. Chesapeake Appalachia, the arbitration panels determined they had the authority to decide whether the cases should be arbitrated as a class and, subsequently, both decided the cases could be arbitrated as a class. Chesapeake filed declaratory judgment actions in the district court both for a determination that the court decides whether class arbitration is appropriate and that, in these two cases, class arbitration was not appropriate. On Oct. 16, Judge Brann said he was ready to rule in Scout Petroleum back in July when Opalinski was decided and caused him to have to revise his memorandum opinion on the "who decides" issue. "During this time, however, the parties, without either contacting the court or waiting for the court to act, proceeded before the arbitration panel on the questions of both who decides and the question of arbitrability," Judge Brann said, noting the arbitration panel ruled it had the authority to decide and would accept the case as a class. Judge Brann said he thought that ruling was in contradiction to Opalinski. "The court had every expectation of crafting a detailed opinion as to why Opalinski was clearly controlling precedent that it would follow in rendering its decision on this matter," Judge Brann said in a four-page memorandum. "However, given the parties' extreme sense of urgency in resolving the underlying issue, the calculation of royalty payments pursuant to the terms of certain gas leases, together with the fact parties seem unwilling to permit the court time to fully detail and explain its decision, the instant order shall be entered without further commentary." Judge Brann went on to say the court would decide whether class arbitration was permissible pursuant to the terms of the leases. He vacated the arbitration panel's finding on the issue. One day later, on Oct. 17, Judge Mannion rejected Chesapeake's argument in Burkett that the arbitration agreement with the Burketts is silent with respect to class arbitration. Judge Mannion ruled the parties' failure to put into exact words that they intend to have an arbitrator decide the issue of class arbitrability does not preclude the court from finding there is unmistakable evidence that such was their intent. The Burketts argued their lease provision incorporated the rules of the American Arbitration Association, which, when the lease was signed in 2008, included by reference the AAA's adoption of supplementary rules for class arbitration. "Indeed, virtually every circuit court to have considered the issue has found that incorporation of the AAA rules into an agreement constitutes clear and unmistakable evidence that the parties agreed to arbitrate issues of arbitrability," Judge Mannion said. Judge Mannion said the AAA rules give the arbitrator the authority to decide his or her own jurisdiction, and therefore gives the arbitrator the ability to decide questions of arbitrability. Judge Mannion noted that the parties in Opalinski signed their agreement before the supplemental rules for class arbitration went into effect, allowing the Opalinski court to determine the parties did not expressly note that they wanted an arbitrator to decide the question of arbitrability. "The court finds that incorporation of the AAA rules into the lease at issue, which grants the arbitrators the power to decide their own jurisdiction, vested the arbitrators with the authority in this case to decide issues of arbitrability, including the issue of 'who decides' class arbitrability," Judge Mannion said in denying Chesapeake's motion for summary judgment on the "who decides" issue. In a separate memorandum issued the same day, Judge Mannion addressed Chesapeake's motion to vacate the arbitration panel's determination that Burkett could proceed as a class arbitration. Judge Mannion said the arbitration panel did not exceed its authority in determining the parties' lease allowed for class arbitration. He said that panel's ruling must be given considerable deference. Daniel T. Brier -- dbrier@mbklaw.com -- of Myers Brier & Kelly in Scranton, and Daniel T. Donovan -- daniel.donovan@kirkland.com -- and Ragan Naresh of Kirkland & Ellis in Washington, D.C., are representing Chesapeake in both cases. Francis P. Karam in New York, along with Rachel Schulman of Great Neck, N.Y., Douglas A. Clark of Peckville, Pa., and Gerard M. Karam of Mazzoni, Karam, Petorak & Valvano in Scranton, are representing the Burketts. Francis Karam declined to comment on the rulings. Scout Petroleum is represented by a number of lawyers at Cohen, Placitella & Roth. Alessandra C. Phillips of Cohen Placitella declined to comment on pending litigation. CHRYSLER GROUP: Judge Certifies Class in Jeep Liberty Suit ---------------------------------------------------------- Lisa Hoffman, writing for The National Law Journal, reports that because a lead plaintiff sold her vehicle before joining a putative class action against Chrysler Group LLC, a California federal judge sanctioned the woman for effectively destroying evidence and refused to certify a class of Maryland Jeep Liberty owners she had intended to represent. U.S. District Judge James Selna of the Central District of California on Oct. 9 agreed with Chrysler's counsel that plaintiff Robin Allen was not a proper class representative in the proposed action. The suit alleges replacement window regulators in 2002 to 2007 Jeep Liberties are defective, rendering the windows prone to crashing to the bottom of the doors or freezing in place. At the same time, Judge Selna certified a California class of plaintiffs in the same action, Doyle v. Chrysler, who allege the company violated California's Consumer Legal Remedies Act and its Unfair Competition Law. Some Liberty owners allege they have spent hundreds of dollars attempting to fix the problem, only to find that replacement regulators were defective. The problem was identified as stemming from weak plastic window brackets, according to the complaint, filed in April 2013. The defense alleged that plaintiff Ms. Allen, of Baltimore, Md., engaged in spoliation of evidence when she traded in her 2006 Liberty on Oct. 11, 2013. Ms. Allen had contended that she did so before conversing with an attorney or even considering seeking legal advice regarding joining the proposed class action. But Chrysler and the judge challenged that account. The judge, in his order on class certification, gave this timeline: In July 2013, Ms. Allen, who said she had replaced window regulators four times, submitted her contact information on a website related to an investigation of defective Jeep window regulators. An attorney responded with a short introductory email on Sept. 24, 2013. Ms. Allen traded in her Liberty on Oct. 11, 2013. Nine days later, she was contacted by counsel, and retained the attorney that day. Judge Selna granted Chrysler's request that, at trial, the judge may instruct the jury that it can draw an adverse inference about Ms. Allen's claim because of the destruction of evidence. Along with approving evidentiary sanctions, Judge Selna also deemed Allen no longer representative of a Maryland class. "When one is contemplating making a claim that a vehicle is defective, it takes no special training or particular sophistication to recognize the potential relevance of that vehicle as evidence of one's claim," Judge Selna wrote. Chrysler is represented by Thompson Coburn, LLP, and Sedgwick, LLP. The plaintiffs are represented by Goldenberg Schneider; Arias Ozzello and Gignac; and Foley Bezek Behle & Curtis. CLARK COUNTY: Illegally Collects Debt, "Blankenship" Suit Says -------------------------------------------------------------- Clay Blankenship, individually and on behalf of all others similarly situated v. Clark County Collection Service, LLC, Case No. 5:14-cv-02147 (C.D. Cal., October 17, 2014), arises out of the Defendant's unlawfully and abusively collection of debt allegedly owed by the Plaintiff. Clark County Collection Service, LLC is a debt collection agency in California. The Plaintiff is represented by: Abbas Kazerounian, Esq. Matthew M. Loker, Esq. KAZEROUNI LAW GROUP, APC 245 Fisher Avenue, Unit D1 Costa Mesa, CA 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 E-mail: ak@kazlg.com ml@kazlg.com - and - Joshua B. Swigart, Esq. HYDE & SWIGART 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 E-mail: josh@westcoastlitigation.com CLP RESOURCES: Suit Seeks to Recover Unpaid Wages & Penalties ------------------------------------------------------------- Zachary Christensen, Cole Berman, Leonard Puga, and Rob Vincent individually and on behalf of all others similarly situated v. CLP Resources, Inc., First Solar, Inc., Trueblue, Inc. and Does 1 to 20, Case No. 2:14-cv-08073 (C.D. Cal., October 17, 2014), seeks to recover unpaid wages, overtime, damages, penalties, and attorneys' fees and costs under the Fair Labor Standards Act. The Defendants own and operate a skilled trades-staffing company providing skilled trades-people to a broad range of customers in commercial, industrial, energy, government, and residential sectors. The Plaintiff is represented by: Alan Harris, Esq. Priya Mohan, Esq. Rebecca Lee, Esq. HARRIS & RUBLE 4771 Cromwell Avenue Los Angeles, CA 90027 Telephone: (323) 962-3777 Facsimile: (323) 962-3004 E-mail: aharris@harrisandruble.com pmhan@harrisandruble.com rlee@harrisandruble.com COBRA CONSTRUCTION: "Lopez" Suit Seeks to Recover Unpaid Overtime ----------------------------------------------------------------- Edward Lopez, and other similarly-situated individuals v. Ronald M. Spada, individually and Cobra Construction, Inc., a Florida Profit Corporation, Case No. 0:14-cv-62388 (S.D. Fla., October 17, 2014), seeks to recover unpaid overtime wages under the Fair Labor Standards Act. The Defendants own and operate a construction company in Florida. The Plaintiff is represented by: Anthony Maximillien Georges-Pierre, Esq. REMER & GEORGES-PIERRE, PLLC Court House Tower 44 West Flagler Street, Suite 2200 Miami, FL 33130 Telephone: (305) 416-5000 Facsimile: (305) 416-5005 E-mail: agp@rgpattorneys.com COMPETITOR GROUP: Faces Class Action Over Labor Law Violation ------------------------------------------------------------- Deadspin.com's Fittish reports that Competitor Group, Inc., which owns the nationwide Rock 'n' Roll Marathon and Half Marathon series, has had a class-action suit brought against it for an alleged violation of federal and state labor practices. The plaintiff claims she and others across the country volunteered because they thought CGI was a hearts-and-rainbows non-profit instead of the Walmart of distance running. The suit, filed September 23, tells the story of Yvette Joy Liebesman, cyclist and associate professor at the Saint Louis University School of Law. Ms. Liebesman got up really early on the morning of October 21, 2012, and rode her bike at the front of the St. Louis Rock 'n' Roll Half Marathon as an official escort for the lead runners. She was required to provide her own cellphone and a hands-free device, she says. It was a position for which she volunteered. In the suit, Ms. Liebesman's attorneys argue that CGI, a for- profit company, recruits volunteers like Ms. Liebesman by obscuring its status in its marketing and communication. It does this by selling "Official Charity" sponsorships, the suit alleges, paid for in the form of a minimum 10 runners at $165 each. The charity names are then further used to help recruit volunteers, who believe they are part of Something Bigger Than Themselves instead of unpaid labor used to drive profits up. Profits are up. Estimated to have drawn $125 million in revenue in 2012, CGI was sold to Calera Capital for $250 million later that year. While Rock 'n' Roll races are only one of the company's products, the series has grown into 27 cities across the U.S. and abroad, with an estimated 420,000 participants this year alone. Ms. Liebesman, a lawyer and college professor, is claiming ignorance: "Plaintiff, and all those similarly situated, were ignorant of the fact that Defendant's races had no charitable purpose and that instead, all volunteers and charitable organizations were providing Defendant with free labor for which it should have to pay, increased participation, and hence increased revenue. More simply, Plaintiff and those similarly situated did not, and had no way of knowing, that their role was to increase Defendant's profit margins in a way not allowed under federal and state law." Because of this "veneer of charitable or not-for-profit purpose," Ms. Liebesman is seeking unpaid minimum wages for her and everyone else that's volunteered at races since 2012. The suit openly admits that its lawyers have no idea how many people this is -- one more benefit of not paying for employees. Competitor Group, Inc., released the following statement: "A lawsuit was recently filed against Competitor Group. We believe the allegations are completely baseless and we are confident that once the facts are analyzed it will be resolved quickly. It will not impact this weekend's event in St. Louis, which will continue just as planned. While we cannot comment any further on the pending litigation, we are proud of the Rock 'n' Roll Marathon's four year history in St. Louis and we will continue to build upon our strong relationships with our community partners." Wolf Popper LLP Files Class Action Lawsuit Against Officers of GT Advanced Technologies, Inc. DAHILL OFFICE: Sued Over Breach of Fair Credit Reporting Act ------------------------------------------------------------ Blake Kalana, individually and on behalf of all others similarly situated v. Dahill Office Technology Corporation, Case No. 5:14- cv-00916 (W.D. Tex., October 17, 2014), is brought against the Defendant for violations of the Federal Fair Credit Reporting Act. Dahill Office Technology Corporation provides printing equipment and software to businesses. The Plaintiff is represented by: Michael A. Caddell, Esq. Cynthia B. Chapman, Esq. Craig C. Marchiando, Esq. CADDELL & CHAPMAN 1331 Lamar, Suite 1070 Houston, TX 77010-3027 Telephone: (713) 751-0400 Facsimile: (713) 751-0906 E-mail: mac@caddellchapman.com cbc@caddellchapman.com ccm@caddellchapman.com DIAMOND FOODS: Faces "McGee" Suit Over Unlawful Use of PHVO ----------------------------------------------------------- Jacquelyn McGee, on behalf of herself and all others similarly situated v. Diamond Foods, Inc., Case No. 3:14-cv-02446 (S.D. Cal., October 14, 2014), is brought against the Defendant for manufacturing and selling a variety of popcorn products containing partially hydrogenated vegetable oil ("PHVO"), despite the fact that it is banned in many parts of the world because it is the only dietary source of artificial trans fat, a toxic carcinogen. Diamond Foods, Inc., owns, manufactures, and sells the Trans Fat Popcorns under the brand name Pop Secret. The Plaintiff is represented by: Gregory S. Weston, Esq. Melanie Persinger, Esq. Paul K. Joseph, Esq. THE WESTON FIRM 1405 Morena Blvd., Suite 201 San Diego, CA 92110 Telephone: (619) 798-2006 Facsimile: (480) 247-4553 E-mail: greg@westonfirm.com mel@westonfirm.com paul@westonfirm.com DIVERSEGY LLC: Faces "Anderson" Suit Over Failure to Pay Overtime ----------------------------------------------------------------- Alexander Anderson, Tara Bell, and Brekiscus Jackson, individually and on behalf of all others similarly situated v. Diversegy, LLC and Alex Rodriguez, Case No. 3:14-cv-03734 (N.D. Tex., October 17, 2014), is brought against the Defendants for failure to pay overtime compensation. The Defendants own and operate a retail energy brokerage company, which provides brokerage and advisory services in the United States. The Plaintiff is represented by: Joel Benjamin Flowers III, Esq. THE FLOWERS LAW FIRM 1776 Yorktown, Ste. 600 Houston, TX 77056 Telephone: (832) 301-4945 Facsimile: (866) 620-4378 E-mail: attyjbf@gmail.com EASTERN MUSHROOM: Reconsideration Bid in Antitrust Suit Tossed -------------------------------------------------------------- The Capper-Volstead Act provides certain agricultural cooperatives with a limited exemption from antitrust laws. In their consolidated amended class action complaint, plaintiffs in IN RE MUSHROOM DIRECT PURCHASER ANTITRUST LITIGATION. MASTER FILE NO. 06-0620, NO. 06-0638., 06-0657, 06-0677, 06-0861, 06-0932, 06- 1464, 06-1854, (E.D. Penn.) allege that: (1) certain defendants were members of defendant EMMC but were not engaged in agricultural production; (2) defendants entered into multiple agreements with persons or entities not engaged in agricultural production; and (3) defendants engaged in anticompetitive and predatory practices that fall outside of the legitimate objects of an agricultural cooperative. Any of these allegations, if proved, would place defendants outside the Capper-Volstead exemption. On March 26, 2009, District Judge Thomas N. O'Neill, Jr., denied certain defendants' motions for summary judgment and plaintiffs' cross motion for summary judgment on the issue of Capper-Volstead immunity. Judge O'Neill found that the inclusion of a non-grower distributor, M. Cutone, in the EMMC's membership was sufficient to destroy defendants' Capper-Volstead immunity. He also found that, even if all EMMC members had satisfied the requirements to qualify the cooperative for Capper-Volstead immunity, the Act's exemption did not extend to protect cooperatives that conspire with entities not engaged in agricultural production as such was the case with Kaolin/South Mill and its distribution entities and LRP- M/Manfredini Enterprises. Judge O'Neill's two separate findings constituted independent grounds for denial of the Capper-Volstead Act's exemption to defendants. Judge O'Neill further denied defendants' request pursuant to 28 U.S.C. Section 1292(b) to certify his Order for appeal. Defendants then filed an interlocutory appeal that the Court of Appeals dismissed on August 23, 2011. The Court of Appeals held that a prejudgment order denying the protections of the Capper-Volstead Act was not a collateral order subject to interlocutory appeal. Moving Defendants -- individual members and affiliates of the former EMMC -- now argue that the Supreme Court's decision in American Needle, Inc. v. National Football League et al., 560 U.S. 183 (2010) and the Court of Appeals' decision in Deutscher Tennis Bund v. ATP Tour, Inc., 610 F.3d 820 (3d Cir. 2010), have created an intervening change in the law relating to the single entity enterprise defense, warranting reconsideration of Judge O'Neill's March 26, 2009 decision with respect to the South Mill mushroom distributors, Manfredini Enterprises and M. Cutone on the availability of the Capper-Volstead exemption. The Defendants also contend that reconsideration of Judge O'Neill's prior decision is warranted on the basis of an issue that his prior opinion did not specifically address: whether individual members of the EMMC should lose their Capper-Volstead antitrust exemption when they acted under a good faith belief that the EMMC was properly constituted. In a memoranda dated October 14, 2014, copies of which are available at http://is.gd/RnEl2tand http://is.gd/mK4Cd2from Leagle.com, Judge O'Neill denied the Moving Defendants' request for reconsideration. He also certified his Order for appeal. BASCIANI FOODS, INC., Movant, represented by BRIAN DEAN BOREMAN -- bboreman@utbf.com -- UNRUH, TURNER, BURKE & FREES, P.C. & STEPHEN P. LAGOY -- slagoy@utbf.com -- UNRUH TURNER BURKE & FREES, PC. BASCIANI FOODS, INC., Movant, represented by LISANNE L. MIKULA -- lmikula@dioriosereni.com -- DIORIO SERENI, MARK A. SERENI -- mas@dioriosereni.com -- DIORIO & SERENI, LLP & THOMAS K. SCHINDLER, SCHINDLER LAW GROUP LLC. * * * Saranac Hale Spencer, writing for The Legal Intelligencer, reports that the unsettled question of whether an agricultural collective's accidental inclusion of a non-agricultural member would cut through the collective's shield from certain antitrust laws has been certified to the U.S. Court of Appeals for the Third Circuit. U.S. District Judge Thomas N. O'Neill Jr. of the Eastern District of Pennsylvania certified his order in an antitrust class action that was brought by direct purchasers against the members of the former Eastern Mushroom Marketing Cooperative. The judge had ruled in 2009 that the cooperative, sometimes called EMMC for short, wouldn't be covered by the exemptions from some antitrust laws made available to agricultural collectives through the Capper-Volstead Act because M. Cutone, a distributor of mushrooms, was a member of EMMC. "I also found that, even if all EMMC members had satisfied the requirements to qualify the cooperative for Capper-Volstead immunity, the act's exemption did not extend to protect cooperatives that conspire with entities not engaged in agricultural production as such was the case with Kaolin/South Mill and its distribution entities and LRP-M/Manfredini Enterprises," O'Neill said. The defendants asked the judge earlier this year for reconsideration of that 2009 opinion, citing two opinions -- the U.S. Supreme Court's 2010 opinion in American Needle v. National Football League and the Third Circuit's opinion in Deutscher Tennis Bund v. ATP Tour, which was also issued in 2010 -- and arguing that they are intervening case law. Although those opinions were issued three-and-a-half years ago, the motion is timely because Judge O'Neill had entered an order requiring the parties to hold their substantive motions until all fact and expert discovery was finished, the defendants had argued. The suit, originally filed in 2006, alleged that "(1) certain defendants were members of defendant EMMC but were not engaged in agricultural production; (2) defendants entered into multiple agreements with persons or entities not engaged in agricultural production; and (3) defendants engaged in anti-competitive and predatory practices that fall outside of the legitimate objects of an agricultural cooperative," Judge O'Neill summarized in his opinion. "Any of these allegations, if proved, would place defendants outside the Capper-Volstead exemption," he said. In 2009, he found that Capper-Volstead immunity wouldn't apply to EMMC. The defendants now argue that the two intervening decisions have changed the single-entity enterprise defense and the earlier opinion should be reconsidered, according to the opinion. "Defendants previously argued that there cannot be an unlawful conspiracy between EMMC grower members and their affiliated distributors because the members and distributors constitute a single economic unit under Copperweld v. Independence Tube and Sunkist Growers v. Winckler & Smith Citrus Products," Judge O'Neill said, referring to the U.S. Supreme Court's opinions from 1984 and 1962. "Therefore, defendants argue, EMMC price-fixing is permissible at the distribution level because the plurality of actors required for a conspiracy is absent. Defendants now make the same argument relying on American Needle and Deutscher Tennis Bund which I do not find persuasive." Although the judge wasn't convinced to revisit his earlier decision, he did send the order to the Third Circuit for review. "I previously declined to grant certification of an appeal from my order of March 26, 2009, which denied defendants the protections of the Capper-Volstead immunity," Judge O'Neill said, referring to the defendants' previous effort to appeal his decision. "I found that the defendants who requested certification had not shown 'that this is an "exceptional case" where it would be appropriate to permit a piecemeal appeal,'" he said, quoting from his denial of their first motion for reconsideration. "Defendants nevertheless took an appeal from my order. The court of appeals then dismissed their appeal for lack of jurisdiction and did 'not opine on the validity of [my] holding that [the] EMMC was not properly formed under the Capper-Volstead Act because one of its members [M. Cutone] was not a grower of agricultural produce.' In doing so, however, the court of appeals explained that 'there is no dispute that the question, whether the arguably inadvertent inclusion of an ineligible member strips an agricultural cooperative of Capper-Volstead protection, is both serious and unsettled,'" Judge O'Neill said. He decided now to certify the question for appeal. Because there is a controlling question of law and, at this point, a decision from the appellate court could hasten the end of the case, the judge certified his order to the Third Circuit. "A determination by the court of appeals with respect to the applicability of the Capper-Volstead immunity may either expedite the resolution of certain of the plaintiffs' claims or facilitate a settlement, saving the parties the needless expenditure of time and money in litigating issues that the court of appeals may vacate or reverse upon ultimate appeal," Judge O'Neill said. ELNA CO: Sued in Cal. Over Electrolytic Capacitors-Price Fixing --------------------------------------------------------------- Toy-Knowlogy Inc., on behalf of itself and all others similarly situated v. Elna Co., Ltd., et al., Case No. 3:14-cv-04657 (N.D. Cal., October 17, 2014), alleges that the Defendants and other co- conspirators agreed, combined and conspired to fix, raise, maintain and stabilize prices, and to allocate market shares for aluminum and tantalum electrolytic capacitors. Elna Co. manufactured, marketed, and sold aluminum and tantalum electrolytic capacitors in and into the United States. The Plaintiff is represented by: Joseph W. Cotchett, Esq. Steven N. Williams, Esq. Elizabeth Tran, Esq. COTCHETT, PITRE & MCCARTHY, LLP 840 Malcolm Road, Suite 200 Burlingame, CA 94010 Telephone: (650) 697-6000 Facsimile: (650) 697-0577 E-mail: jcotchett@cpmlegal.com swilliams@cpmlegal.com etran@cpmlegal.com - and - Richard M. Heimann, Esq. Eric B. Fastiff, Esq. Brendan P. Glackin, Esq. Dean M. Harvey, Esq. Lin Y. Chan, Esq. LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 275 Battery Street, 29th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 E-mail: rheimann@lchb.com efastiff@lchb.com bglackin@lchb.com dharvey@lchb.com lchan@lchb.com EVERYWARE GLOBAL: Faces Investor Class Action in Pennsylvania ------------------------------------------------------------- Tom Knox, writing for Columbus Business First, reports that Anchor Hocking's parent company is being targeted in a class-action lawsuit that claims executives were mum about the company's flailing operations. The suit seeks to recover losses for investors after EveryWare Global Inc. temporarily idled its plants in Lancaster and Pennsylvania. The suit comes on the heels of EveryWare reporting it lost $38.3 million on revenue of nearly $93.3 million during its first quarter. Scott & Scott, a New York law firm that files similar suits to recover investment losses, sued last week in federal court in Columbus. Investors who held EveryWare shares between June 18, 2013 and May 16 are eligible to join the suit. EveryWare said in a regulatory filing that it planned to "vigorously defend these claims," and declined to comment further. The suit says the reported loss and accompanying plant shutdown "surprised the market," resulting in a 90 percent drop in EveryWare's stock price from a high of $13.24. The share price was trading around $1.50 in a turbulent market on Oct. 15. Former executives made misleading comments about EveryWare's financial health, the lawsuit alleges. Former CEO John Sheppard, who left in February, said in a conference call that "we are off to a very solid start in 2013 and expect the second half of the year to be even stronger," the suit said citing an example, EveryWare makes kitchen and housewares products. Its plant in Lancaster is one of the city's biggest employers and has been party to an operational roller coaster since May. EveryWare Global obtained a $20 million investment in July to keep its businesses, which include the Oneida brand, running. FIRSTENERGY CORP: Sued Over Retiree Health-Care Subsidies --------------------------------------------------------- Betty Lin-Fisher, writing for Beacon Journal, reports that a FirstEnergy Corp. retiree has filed a federal class-action lawsuit that seeks to prevent the company from ending its subsidies for retiree health benefits at the end of this year. Elbert White, of East Liverpool, filed in U.S. District Court in Youngstown on Sept. 29, asking for class-action status for what are believed to be 140 retired workers of the Bruce Mansfield coal plant in Shippingport, Pa. Mr. White was a member of the International Brotherhood of Electrical Workers Local 272 when he worked from 1977 to Feb. 1, 2005. Beginning in 2009, FirstEnergy began notifying its employees that it would be ending subsidies of health care for retirees as of Dec. 31 of this year. Local 272 has been arguing with FirstEnergy about eliminating its retirees' health care and has action pending with the National Labor Relations Board, union President Herman Marshman Jr. said on Oct. 14. The union believes that eliminating retiree health care is unfair for all, he said. The intent of Mr. White's lawsuit is to help the retirees from the plant, said Mr. Marshman, but that doesn't mean other unions or retirees couldn't ask to join the suit. "All retirees, that includes management and union, should band together and take action against this company," said Mr. Marshman, adding that the company had promised its employees over the years that they always would be provided health care. FirstEnergy spokeswoman Stephanie Walton said the company believes its decision to cease health-care subsidies for all retirees "is consistent with contracts we've negotiated with our unions. It's important to note we understand the concerns caused by this announcement and we're committed to providing health-care consultants to help retirees examine their options." Ms. Walton said the company has been communicating with its employees and retirees since announcing the decision in 2009. "This is a difficult challenge that's facing companies nationwide, and it's a decision we don't take lightly, but something that had to be done," she said. Ms. Walton said 8,500 FirstEnergy retirees receive some sort of subsidy for health care. Those retirees could stay on the FirstEnergy plan without a subsidy, qualify for Medicare or find a new plan using the federal marketplace, she said. GENERAL MOTORS: Sued Over Mishap Caused by Ignition Switch Defect ----------------------------------------------------------------- Dennis R. Ward v. General Motors LLC, Case No. 1:14-cv-08317 (S.D.N.Y. Oct 17, 2014), arises out of a motor vehicle accident due to the design defect in the General Motor vehicle's ignition switch. General Motors LLC designs, manufactures, markets and distributes vehicles and vehicle parts and sells financial services. The Plaintiff is represented by: Robin L. Greenwald, Esq. James J. Bilsborrow, Esq. WEITZ & LUXENBERG, P.C. 700 Broadway New York, NY 10003 Telephone: (212) 558-5000 Facsimile: (646) 293-7937 E-mail: rgreenwald@weitzlux.com jbilsborrow@weitzlux.com GENERAL MOTORS: Class Suit Lawyers Broadens Ignition Switch Case ---------------------------------------------------------------- Hilary Stout, writing for The New York Times, reports that lawyers in sweeping class-action litigation against General Motors have significantly broadened their case against the embattled automaker, claiming that the company disregarded and concealed safety issues far beyond the defective ignition switch that is now linked to 27 deaths. In a strongly worded complaint, filed late on Oct. 14 in Federal District Court in Manhattan, the lawyers contend that the "new G.M." that emerged from bankruptcy in 2009 so valued cost-cutting that it "produced an inordinate number of vehicles with serious safety defects," which it has sought to remedy only this year with the recall of about 27 million vehicles in the United States. The 700-page filing serves as a "master complaint" for a consolidation of 68 cases seeking class-action status that have been brought around the country on behalf of owners of newer-model G.M. cars seeking compensation for the lost value of their vehicles in light of the safety issues. It is the latest volley in a complex game of legal maneuvering, centering on the ignition switch defect, that could continue for years. While the complaint offered little new evidence of a vast cover- up, it heightened an already bitter confrontation -- even suggesting that the company's chief executive, Mary T. Barra, knew about one of the safety problems in a previous job. "The array of concealed defects is astounding," the plaintiffs' lawyers wrote in the complaint. They added: "The defects affected virtually every safety system in G.M.-branded vehicles, including but by no means limited to the air bags, seatbelts, brakes, brake lights, electronic stability control, windshield wipers, sensing and diagnostic modules, and warning chimes." In an emailed statement, G.M. said that it "intends to vigorously defend against plaintiff's claims that G.M. vehicles have reduced resale value." The complaint was made as part of so-called multidistrict litigation that is being overseen by Judge Jesse M. Furman, and was submitted by the three lawyers whom Judge Furman has appointed to serve as the lead lawyers for all plaintiffs -- Steve W. Berman, Elizabeth J. Cabraser and Robert C. Hilliard. It drew much of its damaging material from the report prepared by the former United States attorney Anton R. Valukas for G.M.'s board and senior management. That report was sharply critical of G.M.'s culture and described instances in which the company's engineers, product developers and legal department overlooked or failed to act on safety concerns. Based on documents and communications with the federal safety regulators, the complaint cited a number of cases in which it contended that recalls for a documented safety problem were limited or late, or warranty claims were ignored -- as with recalls for axle shafts that could break and a defect in a shift cable that could cause cars to roll out of park and crash. The complaint used a previously disclosed email to Ms. Barra to suggest the company's knowledge of safety problems stretched to the highest levels. "New G.M.'s claims that the defects were known only to lower-level engineers is false. For example, current C.E.O. Mary Barra, while head of product development, was informed in 2011 of a safety defect in the electronic power steering of several models. Despite 4,800 consumer complaints and more than 30,000 warranty repairs, G.M. waited until 2014 to disclose this defect," the complaint read. That passage apparently referred to a 2011 email that was made public during a congressional investigation of the ignition switch issue, informing Ms. Barra of power steering problems in Saturn Ions similar to a defect in other cars that had been recalled in 2010. The complaint also displayed many examples of advertisements in which the company emphasized its attention to safety and suggested that it had misled consumers in doing so. Citing a filing the company made to the Securities and Exchange Commission in 2010, the complaint said that "New G.M. admitted that 'Product recalls can harm our reputation and cause us to lose customers, particularly if those recalls cause consumers to question the safety or reliability of our products. Any costs incurred or lost sales caused by future product recalls could materially adversely affect our business.' " The complaint covers only economic loss cases that involve cars bought or leased after July 10, 2009, the day G.M. emerged from bankruptcy. The bankruptcy distinction is significant because the company's restructuring agreement protects it from liability claims that stem from incidents before that date. G.M. has asked Judge Robert E. Gerber, who presided over the bankruptcy proceedings, to uphold that provision and order the pre-bankruptcy cases dismissed. Judge Gerber has not yet ruled, partly because he is reviewing whether G.M. committed fraud during the bankruptcy proceedings by not disclosing potential liabilities from the ignition defect. The company has acknowledged that some of its engineers were aware of the problem for more than a decade before the recalls began. The defect can cause unexpected stalling in moving cars and the sudden loss of power can disable the air bags and other safety systems like power steering and power brakes. While Judge Gerber deliberates, lawyers are pushing ahead with the pre-bankruptcy class actions for economic loss, and they submitted a master complaint for those cases to Judge Furman on Oct. 14 as well. That complaint focused only on the faulty ignition switch. At the same time, lawyers are pressing ahead with another type of litigation, also before Judge Furman, as part of the multidistrict consolidation effort -- cases involving personal injury and wrongful deaths. Against objections from G.M.'s lawyers, Judge Furman recently approved the beginning of discovery in post- bankruptcy cases and to date, G.M. has turned over more than four million pages of documents, lawyers said. "We continue to push G.M. to provide substantive discovery that will allow us to figure out entirely who is responsible and how long they covered the problem up," Mr. Hilliard, one of the three lead lawyers, said in an interview. In its statement, G.M. noted that the cases had yet to receive official class-action status. "The court has not determined whether it is appropriate to treat these matters as class actions and G.M. intends to vigorously defend against plaintiff's claims that G.M. vehicles have reduced resale value," it said. GEORGIA: AG Mulls Appeal in Class Action Over Insurance Plan ------------------------------------------------------------ Kathleen Baydala Joyner, writing for Daily Report, reports that the state attorney general's office is deciding whether to appeal a judge's decision to allow a potential class action to move forward against the Georgia Department of Community Health in which a government employee alleges she was duped into buying a more expensive health insurance plan. Fulton County Superior Court Judge Cynthia Wright on Oct. 9 rejected the state's main argument to dismiss, which was that the lawsuit is barred by sovereign immunity. In her order Wright cited statutory and constitutional waivers of sovereign immunity in contract disputes involving state agencies or departments. Law Department officials declined to comment on Oct. 15 on the ruling but pointed to its July motion to dismiss, which argued that the plaintiff failed to show the existence of a written contract needed to waive sovereign immunity. The state's motion said that neither health plan materials provided to government employees by the community health department nor the online enrollment process constituted a written contract. Judge Wright also disagreed with the state on this issue. "Although DCH contends that no valid contract ever existed between DCH and plaintiff (and other members of the putative class), the court finds no merit in this argument," the judge wrote in her order. The plaintiff, Trecia Neal, who works for the DeKalb County school system, filed her potential class action in May seeking reimbursement of premiums and other damages. In it, she alleges the state's health benefit plan, which is administered by the Department of Community Health, failed to provide the enhanced benefits it promised her and others who enrolled and paid for higher-priced health care packages. One of Ms. Neal's lawyers, A. Lee Parks of Parks, Chesin & Walbert, said the state used "bait-and-switch tactics to lure over 200,000 members into buying high-priced health care packages." Parks said employees were presented with three coverage options -- gold, silver and bronze -- that each carried different premiums, deductibles and percentages of coinsurance. Ms. Neal chose the gold option, which was the most expensive but carried the lowest deductible and highest percentage of coinsurance. The open enrollment period ended in early November 2013 and took effect on Jan. 1. On Jan. 27, the department eliminated the three-tier system without giving employees prior notice and applied the changes retroactively to Jan. 1, Mr. Parks said. The department also did not change what it was charging employees who chose the more expensive plans, he said, adding that the department prohibited employees from switching to the lowest-cost option. That meant top tier policy holders, including his client, continued to pay higher premiums -- in some instances up to twice as much -- for benefits they were no longer receiving, Mr. Parks argued. A representative with the Department of Community Health did not respond to a request for comment. Mr. Parks said that, during a Sept. 29 hearing on the motion to dismiss, the attorney general's office essentially argued "that people who buy their health insurance do so at their own peril and there is no recourse for that." Mr. Parks also said he has been notified by the attorney general's office that it plans to appeal. "This just puts off the case and increases the liability of the plan," Mr. Parks said. "You have to remember that somebody has got to pay this back, and every month that goes by they are collecting significant amounts of money they won't be able to keep." But a representative with the Law Department said on Oct. 15 it is still weighing its options. Ms. Neal also is being represented by M. Travis Foust of Parks, Chesin & Walbert, solo practitioner Jeffrey Berhold and Andrew Lampros -- alampros@hallandlampros.com -- of Hall & Lampros. Senior Assistant Attorney General Robin Leigh is the lead counsel for the Department of Community Health. Other lawyers on the case are Senior Assistant AG Julie Adams Jacobs and Assistant AG Stephanie Burnham. GLAXOSMITHKLINE: Judge Rejects Thalidomide Class Action ------------------------------------------------------- Saranac Hale Spencer, writing for The Legal Intelligencer, reports that the time for Edmund Andre to bring a suit against the maker of thalidomide has long since passed, a federal judge in Philadelphia has ruled, rejecting Mr. Andre's expert and the argument that the company's initial cover-up of the drug's effect on babies born to women who took it would extend the statute of limitations. Andre, who was born in 1957 with severe birth defects, was among about 50 plaintiffs who brought claims against GlaxoSmithKline in recent years. They are all represented by the Seattle class- action law firm Hagens Berman Sobol Shapiro, according to the opinion from U.S. District Judge Paul S. Diamond of the Eastern District of Pennsylvania. "After some three years of litigation, it is plain that critical allegations made by Edmund Andre -- allegations that I was compelled to accept as true at the Rule 12 stage -- have no evidentiary support," Judge Diamond said. The "plaintiff offers no valid basis to conclude that the two-year limitations clock was tolled after February 1957, when plaintiff was born with horrific injuries. I am now compelled to conclude that the clock expired decades ago and that this 2011 personal injury action is time- barred." The suit, like the others similar to it, had originally been filed in the Philadelphia Court of Common Pleas and removed to federal court by GSK, which claimed diversity jurisdiction since, it said, it is a Delaware corporation. District court judges split on whether the pharmaceutical giant is a citizen of Pennsylvania, where it has its offices and 1,800 employees, or Delaware, where it is incorporated and rents an office. In 2012, Judge Diamond agreed with GSK that its corporate "nerve center," a term taken from the U.S. Supreme Court's 2010 opinion in Hertz v. Friend, is located in Delaware. But he noted the split among district court judges, some of whom ruled in opposite ways when presented with nearly identical facts, and urged the U.S. Court of Appeals for the Third Circuit to settle what he called an "extremely troubling" uncertainty in the law. In a highly anticipated ruling with far-reaching effects, the appeals court last year upheld his ruling that GSK's "nerve center" is in Delaware and diversity jurisdiction would apply. The thalidomide cases were then consolidated in Judge Diamond's court, according to his opinion issued on Oct. 16 in Johnson v. SmithKline Beecham. Earlier this year, Judge Diamond said, GSK had "asked me to order plaintiffs to comply with discovery requests respecting plaintiffs' thalidomide-related online and social media communications and research." He granted the motion. But, "on June 12, defendants presented compelling evidence that, contrary to my orders (and plaintiffs' discovery obligations), several plaintiffs had failed to produce highly probative, relevant evidence, including online and social media posts revealing that some plaintiffs have known for decades that thalidomide caused their birth defects." The plaintiffs responded that they didn't remember making the posts and suffered short-term memory loss, among other things. GSK argued that the suits should be dismissed. Instead of dismissing, Diamond appointed William T. Hangley to serve as special master for discovery. As to the issue of the statute of limitations, Judge Diamond applied Pennsylvania law, which has a two-year limit from the infliction of harm. The clock would have started running in 1957 for Mr. Andre, the judge said. "The gravamen of plaintiff's complaint is that defendants' fraudulent concealment of both thalidomide's extensive distribution in the United States and the drug's dangerousness tolled the running of the two-year limitations clock," Judge Diamond said, but the plaintiff failed to prove that claim. Mr. Andre knew as early as 1969 that his mother had taken thalidomide while she was pregnant with him and he made no significant effort until recently to investigate and bring a case, Judge Diamond said. "In arguing that the two-year limitations clock was stopped for some 50 years, plaintiff offers the expert affidavit of Trent Stephens," Judge Diamond said. Dr. Stephens had said "that before Oct. 25, 2009, (exactly two years before the instant complaint was filed) medical science mistakenly understood that thalidomide caused only 'bilateral' limb defects, not the 'unilateral' defects from which plaintiff suffers," according to the opinion. That view is based on a study from 1964, though, Judge Diamond said. "Dr. Stephens also avers that data from a 1969 study shows thalidomide resulted in 'significant unilateral defects,'" Judge Diamond said, quoting from Stephens' declaration. "It thus appears that Dr. Stephens himself acknowledges that any 'sea change' in medical thought on thalidomide occurred some 45 years before the date Dr. Stephens came to 'appreciate' its significance." The judge wasn't convinced that the statute of limitations should be tolled to allow for Mr. Andre's case. Ari Brown -- ari@hbsslaw.com -- of Hagens Berman represented Mr. Andre, and Michael Scott -- mscott@reedsmith.com -- of Reed Smith in Philadelphia represented GSK. Neither could be reached for comment. GT ADVANCED: Faces "Favalora" Suit Over Misleading Fin'l Reports ---------------------------------------------------------------- John J. Favalora, Jr. individually and on behalf of all others similarly situated v. Thomas Gutierrez, Richard J. Gaynor, Raja Bal, J. Michael Conaway, Kathleen A. Cote, Ernest L. Godshalk, Matthew E. Massengill, Mary Petrovich, Robert E. Switz, Noel G. Watson, Thomas Wroe, Jr., Morgan Stanley & Co. LLC, Goldman, Sachs & Co., and Canaccord Genuity Inc., Case No. 1:14-cv-00460 (D.N.H., October 17, 2014), alleges that the Defendants made materially false and misleading statements with respect to GTAT's relationship with Apple, as well as GTAT's capital position. GT Advanced Technologies Inc. is a diversified technology company producing advanced materials and innovative crystal growth equipment for the global consumer electronics, power electronics, solar and LED industries. The Individual defendants are directors and officers of GT Advanced Technologies Inc. The Corporate defendants are underwriters of the Initial Public Offering Statements of GT Advanced Technologies Inc. The Plaintiff is represented by: Jamie N. Hage, Esq. Kathleen A. Davidson, Esq. HAGE HODES, PA 1855 Elm Street Manchester, NH 03104 Telephone: (603) 668-2222 ext. 111 Facsimile: (603) 641-6333 E-mail: jhage@hagehodes.com kdavidson@hagehodes.com - and - Thomas J. McKenna, Esq. Gregory M. Egleston, Esq. GAINEY McKENNA & EGLESTON 440 Park Avenue South, 5th Floor New York, NY 10016 Telephone: (212) 983-1300 Facsimile: (212) 983-0383 Email: tjmckenna@gme-law.com gegleston@me-law.com GT ADVANCED: Sued in D.N.H. Over Misleading Financial Reports ------------------------------------------------------------- Frank S. Impagliazzo and Tami Fitzkoff, on behalf of themselves and all others similarly situated v. Thomas Gutierrez, Richard J. Gaynor, and Raja Bal, Case No. 1:14-cv-00458 (D.N.H., October 16, 2014), made materially false and misleading statements with respect to GTAT's relationship with Apple, as well as GTAT's capital position. GT Advanced Technologies Inc. is a diversified technology company producing advanced materials and innovative crystal growth equipment for the global consumer electronics, power electronics, solar and LED industries. The Plaintiff is represented by: Mark L. Mallory, Esq. MALLORY & FRIEDMAN, PLLC 3 North Spring Street Concord, NH 03301 Telephone: (603) 228-2277 Facsimile: (603) 228-2275 E-mail: mark@malloryandfriedman.com - and - Sherrie R. Savett, Esq. Michael T. Fantini, Esq. Glen Abramson, Esq. BERGER & MONTAGUE, P.C. 1622 Locust Street Philadelphia, PA 19103 Telephone: (215) 875-3000 Facsimile: (215) 875-5715 E-mail: ssavett@bm.net mfantini@bm.net gabramson@bm.net GT ADVANCED: Wolf Popper Files Securities Class Action ------------------------------------------------------ Wolf Popper LLP on Oct. 16 disclosed that it has filed a class action lawsuit against officers of GT Advanced Technologies, Inc. (NASDAQ: GTAT), in the United States District Court for the District of New Hampshire, on behalf of all persons who purchased GTAT's publicly traded securities between November 5, 2013 and October 6, 2014, and were damaged thereby. The class action is also brought on behalf of all persons who purchased GTAT's public offering of 3.00% Convertible Senior Notes due 2020 and GTAT's public offering of common stock, both conducted on or around December 4, 2013. This action alleges claims for violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934. If you are a member of the Class, you may file a motion no later than December 8, 2014 to be appointed a lead plaintiff. A lead plaintiff is a representative party acting on behalf of other class members in directing the litigation. Investors who purchased GTAT during the Class Period and suffered losses are urged to contact Wolf Popper to discuss their rights. The Complaint charges that Defendants made materially false and/or misleading statements with respect to GTAT's relationship with Apple, and that GTAT was in a "good capital position." However, Defendants failed to disclose, among other things, that GTAT: (i) would not be able to meet the requirements of its multi- year agreement with Apple to supply sapphire materials; (ii) was facing a liquidity crisis given its failure to meet the requirements of its supply agreement with Apple; (ii) revenue guidance for 2014 was inflated because Apple would not be using its sapphire materials in the new iPhone; and (iv) would not be ending the year with $400 to $450 million in cash. On October 6, 2014, GTAT announced that it was experiencing a liquidity crisis and filed for bankruptcy. On this news, the price of GTAT shares plummeted $10.25 per share, or nearly 93%, to close at $0.80 per share. Wolf Popper -- http://www.wolfpopper.com-- has successfully recovered billions of dollars for defrauded investors. The firm's reputation and expertise have been repeatedly recognized by the courts, which have appointed the firm to major positions in securities litigation. See www.wolfpopper.com For more information, please contact: Robert C. Finkel, Esq. Tel.: 877.370.7703 Fax: 877.370.7704 E-mail: irrep@wolfpopper.com Web site: http://www.wolfpopper.com GT ADVANCED: Berger & Montague Files Securities Class Action ------------------------------------------------------------ Berger & Montague, P.C. on Oct. 16 disclosed that it has filed a securities class action lawsuit against certain of the executive officers of GT Advanced Technologies Inc. The action, which is captioned Impagliazzo, et al. v. Gutierrez, 1:14-cv-00458 (D.N.H.), asserts claims under the Securities Exchange Act of 1934 on behalf of investors in GT securities during the period of November 5, 2013 to 9:40 am Eastern Standard Time on October 6, 2014, inclusive. The Complaint alleges that during the Class Period defendants made statements which misrepresented and/or concealed GT's cash position, expected cash position and revenues, ability to meet certain milestones under a critical agreement with Apple for the production of sapphire material, and the Company's development of a facility that would produce the sapphire material. These false and misleading statements were made to the market in public statements and in the offering materials for GT's offerings of 3.00% Convertible Senior Notes due 2020 and public offering of common stock, both conducted on or around December 4, 2013. On October 6, 2014, the Company suddenly reversed course and announced that it was experiencing a liquidity crisis and filed for bankruptcy in the United States Bankruptcy Court for the District of New Hampshire. On this news, the price of GT stock declined from $11.05 per share to $0.80 per share, or almost 93%. Similarly, the price of the Company's 3.00% Convertible Senior Notes due 2020, which had a face value of $1,000 per note, declined from $1,083 per note to $315 per note, or almost 71%. If you wish to serve as Lead Plaintiff for the Class, you must file a motion with the Court no later than December 8, 2014. This class action case involves all persons who: purchased GT's publicly traded securities between November 5, 2013 and 9:40 am Eastern Standard Time on October 6, 2014; purchased securities in or traceable to the Company's public offering of $214 million in principal amount of 3.00% Convertible Senior Notes due 2020 conducted on or around December 4, 2013; purchased securities in or traceable to GT's public offering of 9,942,196 shares of its common stock conducted on or around December 4, 2013. Any member of the proposed Class may move the Court to serve as Lead Plaintiff through counsel of their choice, or may choose to do nothing and remain a member of the proposed Class. Based in Philadelphia, PA, Berger & Montague, P.C. -- http://www.bergermontague.com-- represents plaintiffs in complex and class action litigation and is consistently ranked as one of the top plaintiffs' law firms in the United States by many publications. Berger & Montague, P.C. has extensive experience representing investors, homeowners, consumers and borrowers in class action litigation, and the firm has played lead roles in major cases for over 40 years resulting in recoveries of many billions of dollars for their clients and the classes they represent. If you wish to discuss this Action or have any questions concerning this notice or your rights or interests, GUAM: Faces Class Action Over Uncompensated Land Takings -------------------------------------------------------- Krystal Paco, writing for KUAM News, reports that the Calvo Administration could face a major bump in GovGuam's road to financial recovery, as a multimillion dollar class action law suit has been filed with the Superior Court of Guam dealing with private property taken for public easements and utilities. "This law has never been rescinded and it shouldn't be rescinded because the government has wronged these real property owners. So we, on behalf of the estate of Rita Aquino Salas and there may be some others added as named plaintiffs, are suing the government," asserted Attorney Curtis Van De Veld In reference to Public Law 22-73. The bill was originally vetoed by then-governor Joseph Ada but overridden by the 22nd Guam Legislature. The public law required the Governor of Guam within 120 days of its passage to develop a list of landowners whose lands had been taken or used for public access and public utilities in Guam without being compensated. It further mandated that rev and tax refrain to remove those properties from real estate tax rolls and refrain from collecting real property taxes on public utilities and access easements. According to Mr. Van De Veld, the law was a result of report out of the Department of the Interior back in 1992. In the audit, DOI addressed that GovGuam must remedy uncompensated land takings. He said, "The Office of the Inspector General determined that the Government of Guam had taken people's property for roadways and other easements and had not compensated them for that money that they should be paid when their property is taken by the government and also that they continued to tax people on the real property for the segments of the real property that were taken." But what's the damage? According to Van De Veld, in excess $73 million is owed to such property owners. The class action lawsuit Van De Veld filed on Oct. 16 seeks to have the court issue a writ of mandamus to the Government of Guam to compel GovGuam to perform what it's obligated to do. "In that public law it requires that the Government of Guam, the Executive Branch will determine which people they taxed improperly and how much they improperly taxed them for the real property and will also determine all persons whose property has been taken and used by the public and place a value on it which they believed should be restored to," he stated. When Ada vetoed the bill in 1994 he wrote, "Although this measure proposes to compensate landowners whose lands were taken and others who agreed to let the government take or use their land, it is in fact nothing more than a raid on the treasury and a recipe for bankruptcy for the Government of Guam, the Public Utility Agency of Guam, the Guam Power Authority, the Guam Telephone Authority and the Territorial Highway Fund." The Governor's Office had not yet seen the lawsuit and declined to comment at this time. GUAM: Calvo Administration Reacts to Property Class Action ---------------------------------------------------------- Krystal Paco, writing for KUAM, reports that the Calvo Administration reacted to a class action lawsuit filed at the superior court. Attorney Curtis Van De Veld represents the estate of Rita Aquino Salas who alleges GovGuam failed to comply with Public Law 22-73. The legislation requires GovGuam compensate real property owners for land that was taken for public roadways and easements. On Oct. 17, Governor Eddie Calvo tells KUAM its too soon to predict ramifications of the lawsuit. "This lawsuit has just been put out in the past 24 hours. I've instructed our staff at the administration and our lawyers let's review the complaint and we'll move from there. Of course there will be discussions with the Attorney General's Office as well." In a 1992 report out of the Department of the Interior it's estimated in excess of $73 million is owed to such property owners. Although the law was originally vetoed by then-governor Joseph Ada, it was overridden by the 22nd Guam Legislature. The public law requires that the governor of Guam within 120 days of its passage to develop a list of landowners whose lands had been taken or used for public access and public utilities on Guam without being compensated. It further mandated that rev and tax remove those properties from real estate tax rolls and refrain from collecting real property taxes. HEALTH NET: Wants Judge to Seal Information on ERISA Settlement --------------------------------------------------------------- Mary Pat Gallagher, writing for New Jersey Law Journal, reports that Health Net Inc., which provides and administers medical benefits to millions of people around the United States, is asking a federal judge in Newark to seal information related to a $215 million class-action settlement of claims that it under-reimbursed out-of-network health-care providers. The company's motion, filed Oct. 7 in Wachtel v. Health Net, seeks to prevent disclosure of portions of a special master's report and some of the exhibits to its own liability insurers, who it is battling in California state court over coverage for the Wachtel litigation. The 241-page report, submitted to the court for approval Sept. 12, was aimed at determining why it was taking so long to get the settlement funds to class members and who, if anyone, was to blame for the delay. Special master Paul Zoubek found some fault for the delay on the part of Health Net, class counsel and the claims administrator but saw no bad faith, according to the report. Mr. Zoubek also found no justification for sanctions or discipline or for removing class counsel or taking back their $70 million fee. The Wachtel caption refers to three consolidated class actions brought under the Employee Retirement Income Security Act against the Los Angeles-based Health Net dating back to 2001. The other cases are McCoy v. Health Net and Scharfman v. Health Net. In July 2008, U.S. District Judge Faith Hochberg of the District of New Jersey approved a settlement that covered all of them, resolving claims on behalf of more than 2.5 million Health Net insureds. In Judge Hochberg's words, it was "among the largest ERISA health insurance settlements on record." The $215 million settlement had three components. A $40 million "prove up" fund was for class members who could show they were balance-billed on the underpayments. Unclaimed amounts would revert to Health Net, while those whose claims were rejected could seek payment from a $160 million "cash settlement" fund, which was to be distributed pro rata. That fund was also tapped for about $69.7 million in legal fees, more than $1.725 million in expenses and $60,000 in incentive awards for the named plaintiffs. Another $15 million went to the New Jersey Department of Banking and Insurance to reimburse small employer plan members. Health Net also agreed to change its practices, most significantly by no longer using the Ingenix database with the problematic reimbursement rates. In 2012, class counsel got Health Net to kick in an additional $6.25 million for the class. The parties were waiting for Judge Hochberg's approval of that new portion when the judge issued an ultimatum instead. In March 2013, with $90 million not yet distributed, she gave class counsel -- Wilentz, Goldman & Spitzer in Woodbridge, N.J., and Pomerantz LLP of New York -- two days to certify what monies had been paid out, what fees they had collected and any other disbursements they had made. They responded that $132,396 had been paid to balance-billed class members, about $72.4 million for their legal fees and expenses and $600,000 for taxes and banking- related costs. They also informed Judge Hochberg that the $94 million that would be left after the claims administrator was paid could be distributed quickly once she approved the $6.25 million. Dealing with the $40 million fund had "proved to be much more difficult and time-consuming than anticipated," they wrote. Judge Hochberg then issued an order to show cause why she should not appoint a special master and on June 3, 2013, ordered that at least half the monies be distributed "forthwith." The parties reported June 19, 2013, that by the end of the following week, more than 95,000 checks comprising 56 percent of the settlement account would be mailed, in sums averaging $530.75, with one check over $207,000. They did not oppose a special master and jointly suggested Mr. Zoubek, a former first assistant attorney general for New Jersey who is now with Montgomery McCracken Walker & Rhoads in Cherry Hill, N.J. Judge Hochberg appointed Mr. Zoubek, whose fees were to be split evenly between Health Net and class counsel and were not to come out of class funds. Mr. Zoubek was tasked with examining how the settlement has been administered and whether Health Net's rejection of claims was legitimate and in good faith, in part by conducting a statistical sampling of claims that were denied. Judge Hochberg further directed Mr. Zoubek to recommend whether class counsel should be replaced or ordered to repay all or part of the nearly $70 million in fees they were paid and to consider whether there should be sanctions or disciplinary action against either Health Net or class counsel. The class, Health Net and Berdon Claims Administration have all asked Judge Hochberg to adopt or affirm Mr. Zoubek's report. Health Net's Oct. 7 motion asked the court to seal portions of the report and exhibits regarding the mediation process that led to the $215 million settlement, before Eric Green of Resolutions LLC in Boston, as well as the subsequent mediation in 2012 before retired U.S. Magistrate Judge John Hughes that resulted in the extra $6.25 million. The company contends the materials are privileged under the law of California, where it is litigating with its liability carriers over coverage for Wachtel, McCoy and Scharfman in Health Net v. American International Specialty Lines Insurance in the Superior Court of Los Angeles County. Kevin Roddy of Wilentz Goldman said, "We don't have any position" on the motion, as did Berdon's lawyer, Thomas Quinn -- thomas.quinn@wilsonelser.com -- of the Florham Park, N.J., office of Wilson Elser Moskowitz Edelman & Dicker. Gretchen Carner -- gcarner@wcb-law.com -- of Waxler Carner Brodsky in El Segundo, Calif., who represents American International Specialty Lines Insurance, said the carriers' position was that the unpaid benefits in the underlying class actions were contractual damages not covered by the professional liability policies. Health Net's lawyer, Jay Calvert -- jcalvert@morganlewis.com -- of Morgan, Lewis & Bockius in Philadelphia, declined comment, as did Michael Davisson of Sedgwick's Los Angeles office, who represents RLI Insurance Co. Counsel for Certain Underwriters at Lloyd's, Paul K. Schrieffer -- pks@pksllp.com -- of P.K. Schrieffer in West Covina, Calif., did not return calls seeking comment. HOME DEPOT: Faces Anchor Bank Suit in Over Alleged Data Breach -------------------------------------------------------------- Anchor Bank, N.A., individually and on behalf of all others similarly situated v. The Home Depot, Inc., Case No. 1:14-cv-03333 (N.D. Ga., October 16, 2014), is brought against the Defendant for 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: Kenneth S. Canfield Everette L. Doffermyre DOFFERMYRE, SHIELDS, CANFIELD & KNOWLES, LLC 1355 Peachtree Street, N.E., Suite 1600 Atlanta, GA 30309 Telephone: (404) 881-8900 Facsimile: (404) 881-3017 E-mail: kcanfield@dsckd.com edoffermyre@dsckd.com - and - Vincent J. Esades, Esq. David R. Woodward, Esq. HEINS MILLS & OLSON P.L.C. 310 Clifton Avenue Minneapolis, MN 55403 Telephone: (612) 338-4605 Facsimile: (612) 338-4692 E-mail: vesades@heinsmills.com dwoodward@heinsmills.com - and - Brian M. Sund, Esq. Jackson D. Bigham, Esq. MORRISON SUND PLLC 5125 County Road 101, #200 Minnetonka, MN 55345 Telephone: (952) 975-0050 Facsimile: (952) 975-0058 E-mail: bsund@morrisonsund.com jbigham@morrisonsund.com INDIANA: BMV Denies Allegations of Being Secretive on Overcharges ----------------------------------------------------------------- Tony Cook, writing for IndyStar, reports that the Indiana Bureau of Motor Vehicles is denying allegations that it's being secretive about its release of videos and other documents related to a lawsuit over the agency's overcharges. Two issues were central to the dispute at a contentious hearing on Oct. 15 in Marion Superior Court: whether video depositions about the motorist overcharges should be withheld from the public and whether the BMV should be held in contempt for missing a deadline for producing documents related to the case. Wayne Turner, an attorney representing the BMV, said the video depositions should not be released because the media only publishes clips in their reports, which he said provides a distorted view of the information. "This is not a request for a gag order," he said, but rather a "matter of protecting" current and former BMV employees. The agency took its stance in September, several months after The Indianapolis Star and other media published a recorded deposition of former BMV Deputy Director Matthew Foley. In the video, Mr. Foley testifies under oath that top agency officials knew they were improperly charging Hoosiers for years, but secretly continued the practice to avoid budget troubles. However, Attorney Irwin Levin, who is representing motorists in the lawsuit, asked Judge John Hanley at the Oct. 15 hearing not to involve the court in telling the press how to cover a story, adding that the BMV's "entire argument is that the BMV doesn't like the way the story is being told." The BMV's efforts to keep the videos secret is just the latest wrinkle in the lawsuit, which seeks to recoup $30 million to $40 million that the BMV overcharged Indiana motorists for personalized license plates, vehicle registrations and dozens of other services. The overcharges may date back to at least the early 2000s and have been estimated to be as much as $60 million to $80 million. The BMV admitted last June that it had overcharged drivers for operator licenses. Then in November, it agreed to refund $30 million to motorists in a separate class action lawsuit involving those excessive charges. The agency also said earlier this month that it has begun sending out claim forms to 180,000 Hoosiers who were overcharged an estimated $29 million in vehicle excise taxes, the agency said on Oct. 15. The overcharges date back to 2004 and are just the latest multimillion dollar mistake at the troubled agency. BMV attorneys at the hearing say written transcripts would still be available, just not video. They argued that the video depositions should be secret because of "the magnitude of the mis- disclosure." The agency's attorneys also argued that they needed more time to produce written records because they said there were more than 260,000 pages to collect. The documents that were sought by the plaintiffs included meeting minutes, emails, and spreadsheets. The agency said it did turn those records over on Oct. 14, but it missed last month's deadline set by the court. The plaintiffs believe those documents will show BMV knew about overcharges years ago, but did nothing to correct them. Mr. Levin said at the meeting that the agency's failure to release the records in a timely manner "is beyond understanding." Mr. Levin held up a small stack of documents, before saying to the judge: "Why are we here so often? Because this is what they've produced in a year." Carl Hayes, an attorney for BMV, countered that he had nine attorneys, three paralegals and one law clerk working on producing the requested documentation. But Hayes also said that the lead plaintiff in the case never paid "at least 28 of 29 fees" at issue in the lawsuit. It is for that reason, he said, that they've asked that the case be dismissed and also have filed a motion to allow them to stop releasing documents to the plaintiff. A hearing on those issues is scheduled for December. At the end of the hearing, Mr. Levin accused BMV attorneys of a "commitment to delay and obfuscation." BMV attorney Hayes responded: "That's simply not the case." The judge did not rule on Oct. 15, instead taking the BMV issues under advisement. But he also admonished the attorneys on both sides, saying that the courts aren't "particularly eager to involve themselves in discovery disputes." The BMV announced earlier this month that it has hired accounting and advisory firm BKD to review how the agency calculates and charges taxes and fees. The agency also has admitted overcharging for dozens of other fees. The overcharges acknowledged by BMV ranged from $11 on antique vehicle registrations to 50 cents on motorcycle endorsements for operator licenses. Those overcharges are the target of pending class action lawsuits filed by Mr. Levin of the Indianapolis firm Cohen & Malad LLP. ISSA NAILS: Faces "Ye" Suit Over Failure to Pay Overtime Wages -------------------------------------------------------------- Ming Ye, individually and on behalf of all other employees similarly situated v. Issa Nails Salon Inc., d/b/a Issa Nails Salon, Lisa He, Min Ling Lee, John Does and Jane Does #1-10, Case No. 1:14-cv-08191 (S.D.N.Y., October 14, 2014), is brought against the Defendants for failure to pay overtime wages in violation of the Fair Labor Standards Act. The Defendants own and operate a beauty salon in New York. The Plaintiff is represented by: Jian Hang, Esq. HNAG & ASSOCIATES, PLLC 136-18 39th Avenue Suite 1003 Flushing, NY 11354 Telephone: (718) 353-8588 Facsimile: (718) 353-6288 E-mail: jhang@hanglaw.com JACKSON CIRTUS: Fla. Suit Seeks to Recover Unpaid Wages & Damages ----------------------------------------------------------------- Damian Santos-Garcia, Simon Guzman-Romero, Tomas Hernandez- Silverio, and Guillermo Martinez-Hernandez, individually and on behalf of all other persons similarly situated v. Jackson Cirtus, Inc., Case No. 2:14-cv-00603 (M.D. Fla., October 17, 2014), seeks to recover unpaid wages, overtime, damages, penalties, and attorneys' fees and costs under the Fair Labor Standards Act. Jackson Cirtus, Inc. is an agricultural employer headquartered in La Belle, Florida. The Plaintiff is represented by: Gregory Scott Schell, Esq. Victoria Mesa, Esq. MIGRANT FARMWORKER JUSTICE PROJECT 508 Lucerne Ave Lake Worth, FL 33460 Telephone: (561) 582-3921 Facsimile: (561) 582-4884 E-mail: Greg@Floridalegal.Org victoria@floridalegal.org JEFFERSON CAPITAL: Sued in C.D. California Over Violation of TCPA ----------------------------------------------------------------- Justin Barshaw, individually and on behalf of all others similarly situated v. Jefferson Capital Systems, LLC, Case No. 5:14-cv-02137 (C.D. Cal., October 17, 2014), is brought against the Defendant for violation of the Telephone Consumer Protection Act. Jefferson Capital Systems, LLC provides traditional and unique recovery services for consumer charged-off accounts. The Plaintiff is represented by: Todd M. Friedman, Esq. Suren N. Weerasuriya, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 324 S. Beverly Dr. #725 Beverly Hills, CA 90212 Telephone: (877) 206-4741 Facsimile: (866)633-0228 E-mail: tfriedman@attorneysforconsumers.com sweerasuriya@attorneysforconsumers.com LONDON SILVER: Sued in S.D. New York Over Silver-Price Fixing ------------------------------------------------------------- Modern Settings LLC (a New York limited liability company), and Modern Settings LLC (a Florida limited liability company), on behalf of himself and all others similarly situated v. The London Silver Market Fixing Ltd., Deutsche Bank AG, HSBC Bank U.S.A., N.A., HSBC Holdings PLC; HSBC Bank PLC, and The Bank of Nova Scotia, Case No. 1:14-cv-08311 (S.D.N.Y., October 16, 2014), alleges that the Defendants conspired, or agreed with one another to restrain trade through collusively manipulating prices of silver and silver derivatives contracts. The Defendants are financial institutions and are member of the Silver Price Fixing Limited. The Plaintiff is represented by: Erica Stone, Esq. Laurence Rosen, Esq. Phillip Kim, Esq. THE ROSEN LAW FIRM, P.A. 275 Madison Avenue, 34th Floor New York, NY 10016 Telephone: (212) 686-1060 Facsimile: (212)202-3827 E-mail: estone@rosenlegal.com lrosen@rosenlegal.com pkim@rosenlegal.com LUZERNE COUNTY, PA: Juvenile Victim Lawyers Want Windfall Frozen ---------------------------------------------------------------- Bob Kalinowski, writing for citizensvoice.com, reports that attorneys representing thousands of juveniles victimized by Luzerne County's infamous "Kids for Cash" scandal asked a federal judge on Oct. 16 to freeze a multimillion-dollar windfall that is soon due to one of the key players in the corruption scheme. They worry disgraced attorney Robert Powell will spend or hide his potential $200 million pay day before he's held liable in court for his role in the juvenile justice scandal. "We're willing to present evidence that Mr. Powell is a mastermind at moving around money and hiding it from those who should have it," said attorney Sol H. Weiss -- sweiss@anapolschwartz.com -- who represents a large group of the juveniles who are part of a class action lawsuit. Mr. Weiss and other attorneys representing the juveniles are asking U.S. District Judge A. Richard Caputo to grant an injunction to prevent Mr. Powell from accessing the approximately $200 million his law firm is owed for representing Avoca residents in a national environmental contamination lawsuit that recently settled. Judge Caputo, who heard testimony on Oct. 16 in federal court in Wilkes-Barre, said he'll issue a written opinion by Oct. 21. Mr. Powell served 18 months in federal prison for paying bribes during the kids-for-cash case, which saw two Luzerne County judges conspire to funnel juveniles to for-profit detention centers owned and operated by Powell and a business partner. Mr. Powell, who lives in Florida and didn't appear in court on Oct. 16, remains the lone defendant who hasn't settled or defaulted in a class action lawsuit brought by the juveniles. "As this court is acutely aware, the underlying case involves the most corrupt dealings of the judiciary in the history of the commonwealth of Pennsylvania," Mr. Weiss said. "The conduct that was committed in Luzerne County is outrageous. He bought the courthouse. He bought judges." Powell's attorney, Stephen M. Sinaiko, said the class action lawsuit has nothing to do with Powell's work in the environmental case. "We think the motion is inappropriate," Mr. Sinaiko said. The Powell Law Group represented a group of Avoca residents who were plaintiffs in a national class action lawsuit against Anadarko Petroleum Corp. regarding environmental contamination from toxic waste that injured thousands. Its subsidiary, Kerr- McGee Corp., once had a wood-treatment plant in Avoca that used creosote, a distilled coal tar. In April, Anadarko agreed to pay $5.15 billion to settle the claims in the case nationwide. For its work, the Powell Law Group is owed somewhere between $150 million and $200 million in attorneys fees, or 40 percent of the local share of the settlement, according to a lawsuit filed against Powell by his former business partner, Allegheny County investment banker Gregory Zappala. Mr. Zappala has filed a civil racketeering lawsuit against Powell in federal court in western Pennsylvania. He filed a similar injunction request there as well. Attorneys for Mr. Zappala came to court on Oct. 16 seeking to join the motion by the kids-for-cash attorneys to request an injunction against Powell. "They have the money and we have to stop them. The money is going to be gone," Mr. Zappala's attorney Bernard M. Schneider said. "We believe all the money was earned illegally by Mr. Powell by his bribing of the judges." Mr. Schneider accused Mr. Powell of using money from companies he co-owned with Mr. Zappala to fund the litigation in the Avoca case. "He stole all the money from us in order to put on his Avoca case -- to prepare and present the case in Avoca," Mr. Schneider said. In 2002, Mr. Powell teamed with Mr. Zappala to build their first juvenile detention center, Pennsylvania Child Care, in Pittston Township. They later built a second center in Butler County called Western PA Child Care. They also formed Gladstone Partners, which had planned to create a cargo airport in the Hazleton area. Mr. Zappala, son of a former state Supreme Court chief justice and brother of the Allegheny County district attorney, abruptly ended his partnership with Powell in June 2008 after The Citizens' Voice reported the FBI was investigating financial ties between Powell and two Luzerne County judges. Mr. Zappala, who appeared in court on Oct. 16, was never accused of any wrongdoing and has maintained he was kept in the dark regarding Mr. Powell's illegal acts. Judges Mark A. Ciavarella Jr. and Michael T. Conahan, were charged in January 2009 with taking $770,000 in kickbacks from Powell and failing to report $2.1 million in finder's fees paid by the developer, whose construction company built the facilities. Ciavarella is serving 28 years in federal prison, while Judge Conahan is jailed for 17« years. The builder of the facility, Robert Mericle, who pleaded guilty in September 2009 to failing to report a felony in the case, reached a $17.75 million settlement in the class action lawsuit in 2012. PA Child Care and Western PA Child Care settled last year for $2.5 million. The former judges defaulted and attorneys aren't expecting to ever recoup damages from them. "Powell is the only one with money," said attorney Mike Cefalo, who represents a group of the juveniles and attended the Oct. 16 hearing. "We filed a request for an injunction so Powell doesn't spend all his money." M-I LLC: "Shaffer" Suit Seeks to Recover Unpaid Wages & Damages --------------------------------------------------------------- Jason Shaffer, individually and on behalf of others similarly situated v. M-I, LLC d/b/a MI Swaco, Case No. 4:14-cv-02966 (S.D. Tex., October 17, 2014), seeks to recover the unpaid wages and other damages pursuant to the Fair Labor Standards Act. M-I, LLC offers drilling fluid products that address the full gamut of specific downhole problems. The Plaintiff is represented by: Michael A. Josephson, Esq. Andrew Dunlap, Esq. Lindsay R. Itkin, Esq. FIBICH, LEEBRON, COPELAND, BRIGGS & JOSEPHSON, L.L.P. 1150 Bissonnet Houston, Texas 77005 Telephone: (713) 751-0025 Facsimile: (713) 751-0030 E-mail: mjosephson@fibichlaw.com adunlap@fibichlaw.com litkin@fibichlaw.com - and - Richard J. (Rex) Burch, Esq. BRUCKNER BURCH PLLC 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Telephone: (713) 877-8788 Facsimile: (713) 877-8065 E-mail: rburch@brucknerburch.com MARC JACOBS: Suit Seeks to Recover Unpaid Minimum Wages and OT -------------------------------------------------------------- Linney Warren, individually and on behalf of other persons similarly situated who were employed by Marc Jacobs International, LLC, or any other entities affiliated with or controlled by Marc Jacobs International LLC v. Marc Jacobs International, LLC, or any other entities affiliated with or controlled by Marc Jacobs International, LLC, Case No. 160107/2014 (N.Y. Sup. Ct., New York Cty., October 15, 2014) is brought pursuant to New York Labor Law to recover unpaid minimum wages and overtime compensation owed to the Plaintiff and the class. Marc Jacobs International, LLC is a foreign limited liability company organized in Delaware headquartered in New York. The Plaintiff is represented by: Lloyd R. Ambinder, Esq. Kara S. Miller, Esq. VIRGINIA & AMBINDER, LLP 40 Broad St, 7th Floor New York, NY 10004 Telephone: (212) 943-9080 E-mail: lambinder@vandallp.com kmiller@vandallp.com - and - Jeffrey K. Brown, Esq. Michael A. Tompkins, Esq. Brett R. Cohen, Esq. LEEDS BROWN LAW, P.C. One Old Country Road, Suite 347 Carle Place, NY 11514 Telephone: (516) 873-9550 E-mail: jbrown@leedsbrownlaw.com * * * Michael Lipkin, Jessica Corso, Ben James and Scott Flaherty, writing for Law360, report that a former Marc Jacobs International LLC intern accused the high-end clothing company in New York court of failing to pay interns in a putative class action, part of a wave of employment suits brought by former fashion and entertainment industry interns. Plaintiff Linney Warren claims the company illegally classified interns as exempt from minimum wages and overtime since October 2008 while having them do work that would otherwise require more paid workers. The internship didn't have any academic or vocational training, according to the complaint. "Marc Jacobs's unlawful conduct had been pursuant to a corporate policy or practice of minimizing labor costs by denying the named plaintiff and the putative class compensation," Ms. Warren said in the complaint. The plaintiff said she had worked from April to June 2009, transporting raw materials between various studios, organizing fabrics, correcting patterns, sewing and picking up coffee. She often worked 70-hour weeks in May, according to the suit, which said the alleged lack of payment had violated New York Labor Law. At least 50 former interns would be part of the putative class, which stretches back to 2008, according to the complaint. Warren is seeking unspecified damages. The case is the latest in a flurry brought by unpaid interns who allege the entertainment industries are using them for cheap labor, including a recently dropped class action by a former "Late Show with David Letterman" intern who said her attorneys had pushed her into filing it. A former "Wendy Williams Show" intern earlier this month also sued the show's distributor, Lions Gate Entertainment Corp., for failing to pay him wages. Additionally, Interns at Coach Inc. sued the company in July, while former interns with one of the world's largest talent agencies, International Creative Management Partners LLC, are currently battling for conditional certification in a collective action suit. The U.S. Department of Labor has thrown its hat in on the side of the interns via an amicus brief filed with the Second Circuit in July, saying that Fox Entertainment Group Inc.'s use of unpaid interns does not fall under Fair Labor Standards Act exemptions for trainees. Ms. Warren is represented by Lloyd Ambinder of Virginia & Ambinder LLP and Jeffrey K. Brown, Michael A. Tompkins and Brett R. Cohen of Leeds Brown Law PC. The suit is Linney Warren v. Marc Jacobs International LLC, case number 160107/2014, in the Supreme Court of the State of New York, County of New York. MARYLAND LIVE!: Faces Class Action Over Dealer Training ------------------------------------------------------- Don Rush, writing for Delmarva Public Radio, reports that attorneys are pursuing a class-action lawsuit against Maryland Live! Casino in Hanover, accusing its operators of using a dealer school as a prop for job training to avoid paying the minimum wage. The lawsuit was filed on Oct. 14 in federal court by three people who underwent months of training to become dealers at the casino last year. Attorneys say hundreds more qualify as plaintiffs in the lawsuit and can join the litigation. The lawsuit accuses Maryland Live! of disguising job training as a school in partnership with Anne Arundel County Community College, and telling potential dealers they were fortunate the training courses were free. Casino spokeswoman Carmen Gonzales says the lawsuit is "wholly without merit" and that the casino will vigorously fight its claims. MERCANTIL COMMERCEBANK: Sued Over Failure to Pay Overtime Wages --------------------------------------------------------------- Claudia Betancourt, and other similarly situated individuals v. Mercantil Commercebank Florida Bancorp, Inc., Case No. 1:14-cv- 23863 (S.D. Fla., October 17, 2014), is brought against the Defendant for failure to pay proper overtime compensation in violation of the Fair Labor Standards Act. Mercantil Commercebank Florida Bancorp, Inc. own and operates 19 banking centers in Florida, New York, and Texas. The Plaintiff is represented by: Anthony Maximillien Georges-Pierre, Esq. REMER & GEORGES-PIERRE, PLLC Court House Tower, 44 West Flagler Street, Suite 2200 Miami, FL 33130 Telephone: (305) 416-5000 Facsimile: (305) 416-5005 E-mail: agp@rgpattorneys.com MICROSOFT CORPORATION: Sued Over Manipulation of Workers Salary --------------------------------------------------------------- Deserae Ryan, and Trent Rau, individually and on behalf of all others similarly situated v. Microsoft Corporation, a Washington corporation, Case No. 5:14-cv-04634 (N.D. Cal., October 16, 2014), alleges that the Defendant and numerous other companies entered into an Anti-Solicitation Agreements and Restricted Hiring Agreements to fix and suppress the compensation of its employees. Microsoft Corporation is an American multinational corporation that develops, manufactures, licenses, supports and sells computer software, consumer electronics and personal computers and services, and is best known for its software products such as the Microsoft Windows line of operating systems, Microsoft Office, Internet Explorer web browser, Bing, its Xbox game console and the Microsoft Surface series of tablets. The Plaintiff is represented by: David R. Markham, Esq. Malgorzata K. Realin, Esq. Peggy J. Reali, Esq. Janine Renee Menhennet, Esq. THE MARKHAM LAW FIRM 750 B Street, Ste. 1950 San Diego, CA 92101 Telephone: (619) 399-3995 E-mail: dmarkham@markham-law.com mrealin@markham-law.com preali@ck-lawfirm.com jmenhennet@markham-law.com MILLENNIAL MEDIA: Sued Over Illegal Inflation of Stock Price ------------------------------------------------------------ Travis Ostroviak, Individually and on Behalf of All Others Similarly Situated v. Millennial Media, Inc., Paul J. Palmieri, Michael B. Avon, Andrew J. Jeanneret, and Michael Barrett, Case No. 1:14-cv-08330 (S.D.N.Y., October 17, 2014), alleges that the Defendants engaged in a fraudulent scheme to artificially inflate the price of Millennial Media's stock during the Class Period. Millennial Media, Inc. is a digital advertising company that provides advertising services focused on the mobile computing segment, such as smartphones that run Apple, Inc.'s iOS operating system, Google, Inc.'s Android operating system, or other operating systems. The Plaintiff is represented by: Francis Paul McConville, Esq. Jeremy Alan Lieberman, Esq. POMERANTZ LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (212) 661-8665 E-mail: fmcconville@pomlaw.com jalieberman@pomlaw.com - and - Patrick V. Dahlstrom, Esq. POMERANTZ LLP 10 South La Salle Street, Suite 3505 Chicago, IL 60603 Telephone: (312)377-1181 Facsimile: (312)377-1184 Email: pdahlstrom@pomlaw.com MOTT'S LLP: Judge Trims "No Sugar Added" Class Action Claims ------------------------------------------------------------ Emily Field and Lance Duroni, writing for Law360, report that a California federal judge on Oct. 15 pared a bulk of the claims from a proposed class action alleging Mott's LLP mislabeled its apple juice but ruled a trial should determine whether the plaintiff had relied on the juice's "no sugar added" label. U.S. District Judge Susan Illston granted in part Mott's motion for summary judgment on the suit, which had survived two previous bids for dismissal. The decision allows plaintiff Mohammed Rahman's proposed class action against Mott's to proceed on the claim that the juice company violated the unlawful prong of California's Unfair Competition Law. In January, the company won a partial victory when the judge dismissed Mr. Rahman's claims relating to Mott's applesauce. The judge allowed Mr. Rahman to amend his complaint, which then survived Mott's second motion to dismiss completely intact in April. This time, Judge Illston granted Mott's motion for summary judgment on claims that the company violated California's False Advertising Law, Consumer Legal Remedies Act and the fraud and unfair prongs of the Unfair Competition Law, ruling that Mr. Rahman had failed to show that the "no sugar added" label is misleading to a reasonable consumer. An expert witness for Mott's testified that a survey had showed that consumers did not rely on the "no sugar added" claim when purchasing its apple juice, according to the opinion. The judge ruled that the plaintiff's expert testimony, on the other hand, was unpersuasive since he criticized the study but did not assert any independent facts or data. "[The expert] concedes that 'the appropriate methodology for reaching valid and reliable answers to these questions is to conduct a survey,' yet he has apparently failed to follow his own advice," Judge Illston wrote. The judge also granted Mott's summary judgment on Mr. Rahman's negligent misrepresentation claims. However, Judge Illston rejected Mott's argument that Mr. Rahman had failed to show he relied on the "no sugar added" label on the company's apple juice when he decided to buy the juice, saying the plaintiff's testimony had contained enough conflicting evidence to create a triable issue of fact. "[Rahman] also admits that he continued to purchase Mott's even when the 'No Sugar Added' statement was not present on the label," the judge wrote. "However, Rahman also gave testimony tending to show he did in fact rely on the 'No Sugar Added' statement. For example, he testified that it caused him to believe there were fewer calories than comparable apple juice products." Judge Illston also rejected Mott's argument that Mr. Rahman did not suffer damages from purchasing and consuming its apple juice since his testimony on how much he spent on apple juice was sufficient to show evidence of damages. "He testified that he was buying two to three bottles of Mott's 100% Apple Juice every two weeks, but began purchasing three to four bottles every two weeks upon noticing the "No Sugar Added" statement on the label," the judge said. "Rahman further testified that he typically paid between three to five dollars per bottle." But the judge did find that Mr. Rahman had lacked standing for injunctive relief since he testified that he would still buy the juice in the future if the label is removed, even though the juice would still have as much natural sugar as before. Mr. Rahman is represented by Jordan L. Lurie -- Jordan.Lurie@CapstoneLawyers.com -- Mark S. Greenstone, Tarek H. Zohdy and Cody R. Padgett --Cody.Padgett@capstonelawyers.com -- of Capstone Law APC. Mott's is represented by Kevin Marshall Sadler -- kevin.sadler@bakerbotts.com -- Ryan Lee Bangert -- ryan.bangert@bakerbotts.com -- and Van H. Beckwith -- van.beckwith@bakerbotts.com -- of Baker Botts LLP. The case is Rahman v. Mott's LLP, case number 3:13-cv-03482, in the U.S. District Court for the Northern District of California. NBCUNIVERSAL INC: Enters Into Deal to Resolve Intern Class Action ----------------------------------------------------------------- Ben James, writing for Law360, reports that NBCUniversal Inc. has struck a deal to resolve a putative class and collective action filed by former unpaid interns at MSNBC and Saturday Night Live who claimed they should have been compensated, according to a letter filed in New York federal court on Oct. 15. Counsel for named plaintiff Monet Eliastam, who said she was employed as an unpaid intern on the staff of Saturday Night Live in 2012, wrote to U.S. Magistrate Judge Ronald L. Ellis to ask for more time to file a motion for preliminary approval of the pact. "Although the parties met on Aug. 26, 2014, and resolved all outstanding issues, defendant has not yet completed its review of the final settlement agreement and accompanying documents. A brief extension is therefore necessary to enable the defendant to complete its review and for the parties to execute the final version of the agreement," said the letter from Outten & Golden LLP partner Justin Swartz. When Ms. Eliastam and Jesse Moore -- a former unpaid intern at MSNBC who was dismissed from the suit in April -- filed suit in July 2013, they added NBCUniversal to the list of media and entertainment companies which had been targeted in a wave of cases brought by interns over wages. Their complaint pointed out that U.S. District Judge William Pauley had granted class certification and held that two ex- interns were employees protected by the Fair Labor Standards Act and New York Labor Law the month before. That ruling is currently on appeal to the Second Circuit. Ms. Eliastam's duties on "Saturday Night Live" included obtaining and completing paperwork for extras, filing, going on errands to get props, food and coffee, and "locking down" sets to make sure no one disturbed the shooting of scenes, the suit said. From January 2012 through May 2012 she spent about two days a week working a total of approximately 25 hours, and from September 2012 through December 2012 she spent about 3 days and 27 hours per week on the alleged internship, she said. "A key part of NBCUniversal's success are the hundreds of unpaid or underpaid interns who work for it as production assistants, researchers and delivery people, but receive no or very little compensation for their work," the plaintiffs alleged. "Unpaid and underpaid interns are becoming the modern-day equivalent of entry- level employees, except that employers are not paying them or underpaying them for the many hours they work." The plaintiffs are represented by Justin M. Swartz and Juno Turner of Outten & Golden LLP. NBCUniversal is represented by Sam Shaulson -- sshaulson@morganlewis.com -- and Russell Bruch -- rbruch@morganlewis.com -- of Morgan Lewis & Bockius LLP and in- house lawyer Hilary Lane. The case is Moore v. NBCUniversal Inc., case number 1:13-cv-04634, in the U.S. District Court for the Southern District of New York. NORCOLD INC: Judge Refuses to Approve Class Action Settlement ------------------------------------------------------------- David Siegel and Kat Greene, writing for Law360, report that a California federal judge refused on Oct. 14 to grant preliminary approval for a $33 million settlement in a proposed class action against Norcold Inc., Thetford Corp. and Dyson-Kissner-Moran Corp. involving allegedly defective refrigerators, saying more information is needed on incentives provided to named plaintiffs. U.S. District Judge Josephine L. Stanton denied the plaintiffs' motion for approval of the settlement terms without prejudice, saying the court lacks adequate information to determine the incentive amounts for named plaintiffs, who would receive $100 per hour for their assistance, with a suggested $5,000 minimum award. "Because settling plaintiffs have not provided the court with any estimates of the number of hours the proposed class representatives have expended, the court cannot determine whether or not the incentive awards corrupt the proposed class representatives," Judge Stanton wrote. "Consequently, the court cannot conditionally certify the class." The class action was initially filed in December 2012 by a series of plaintiffs who claimed the refrigerators in their recreational vehicles had a design defect in the boiler tubing of the cooling unit. The defect caused the tubes to prematurely corrode, releasing flammable gas into the air, causing the refrigerators to fail and putting the RV owners at risk of fires, according to court records. The defendants launched recalls to repair the refrigerators by retrofitting them with tubing that wasn't defective, but the repairs and retrofitting didn't fix the actual problem, the plaintiffs alleged in their suit. Norcold, Thetford and Dyson-Kissner-Moran agreed in September to pay the $33 million sum, which then would be divided among the would-be class members depending on which refrigerator they purchased and whether they already paid for repairs or replacements, according to the plaintiffs' motion. Judge Stanton noted that eight of the proposed class representatives are receiving payments in addition to their incentive awards in the agreement for the release of their reserved claims, for amounts ranging from $500 to $68,744.60. She compared that to the payments ranging from $7.02 to $175.40 other settling plaintiffs would receive if all class members participated in the settlement. Judge Stanton said there is nothing inherently improper about a class representative settling an individual claim with a defendant, but added the agreement here provides that consideration for the release of reserved claims will be paid only in the event the entire settlement is approved. "There is no compelling reason to link the two settlements, and doing so provides those plaintiffs releasing their reserved claims with a substantial reason to support the settlement separate and apart from any interest they have solely as members of the settlement class," Judge Stanton wrote. "This conflict destroys the adequacy of those eight plaintiffs releasing their reserved claims." The law firms of Ridout Lyon Ottoson LLP and Zimmerman Reed PLLP can't be appointed lead counsel, Judge Stanton said, because they represent both the eight plaintiffs in question and the entire putative class, and would thus be simultaneously representing clients with conflicting interests. Judge Stanton also noted that some class representatives owned a different model refrigerator than the majority of the proposed class. Because those models allowed owners to take advantage of more favorable settlement terms, Judge Stanton said the settlement class could not be certified. The plaintiffs were given 60 days to file an amended motion addressing the deficiencies outlined in Judge Stanton's order. Caleb Marker of Ridout Lyon Ottoson LLP, who represents the plaintiffs, told Law360 that nothing in the court's order raised any questions about the fundamental fairness of the actual settlement or the proposed relief to class members, but instead dealt with the "intricacies of class action law and practice." "We plan on resubmitting our motion for preliminary approval in the coming weeks," Marker said. Robert Bodzin -- rbodzin@burnhambrown.com -- of Burnham Brown PC, who represents Norcold, told Law360 his client supports the efforts to obtain approval of the settlement, and that he expects the plaintiffs will be able to correct the "technical issues which factored into Judge Stanton's decision." The plaintiffs are represented by Hart L. Rabinovich and Bradley C. Buhrow -- Brad.Buhrow@zimmreed.com -- of Zimmerman Reed PLLP and Christopher P. Ridout of Ridout Lyon & Ottoson LLP. The defendants are represented by Robert M. Bodzin, Gregory D. Brown -- gbrown@burnhambrown.com -- Melissa A. Horst and Brian Robert Thompson -- bthompson@burnhambrown.com -- of Burnham Brown PC. The case is Jeffrey Etter et al. v. Thetford Corp. et al., case number 8:13-cv-00081, in the U.S. District Court for the Central District of California. NOVA SCOTIA: Class Action Lawyers Entitled to 17% of Settlement --------------------------------------------------------------- Brett Ruskin, writing for Global News, reports that the Nova Scotia Supreme Court has ruled lawyers representing victims of the Nova Scotia Home for Colored Children are entitled to 17 percent of the overall class action settlement, not 19 percent as they had requested. The court ruling was released to Wagners law firm on Oct. 16, and Global News obtained a copy of the 27-page decision. The document stated the legal fee requested by Wagners was $6.6 million, or 19.4 per-cent of the C$34 million class action settlement. Justice Arthur LeBlanc cited two cases with lower proportional fee ranges paid to lawyers for class action lawsuits and wrote: "I conclude that a reasonable class counsel fee in this case is 17 percent of the total recovery." That means Wagners will be paid approximately C$5.78 million for his team's work over the past 16 years, representing the home's victims. In July 2013, the victims of the home were awarded a settlement valued at C$5 million. An additional C$29 million was awarded this year. Premier Stephen McNeil publicly apologized on behalf of the provincial government for the mistreatment and abuse suffered at the Nova Scotia Home for Colored Children. OCEAN CC: "Alonso" Suit Seeks to Recover Unpaid Overtime Wages -------------------------------------------------------------- Marco Alonso, in his own behalf and those similarly situated v. Ocean CC, LLC., a Florida limited liability company, Stefano Melis, Giovanni Angiulli, and Davide Gulglielmini, individually, Case No. 1:14-cv-23869 (S.D. Fla., October 17, 2014), seeks to recover unpaid overtime wages, liquidated damages and other relief in violation of the Fair Labor Standards Act. The Defendants own and operate a restaurant in Miami Dade, Florida. The Plaintiff is represented by: Richard Bernard Celler, Esq. RICHARD CELLER LEGAL, P.A. 7450 Griffin Road, Suite 230 Davie, FL 33314 Telephone: (954) 243-4295 Facsimile: (954) 337-2771 E-mail: richard@floridaovertimelawyer.com OCWEN LOAN: Faces "Fox" Suit Over Illegal Collection of Plan Fees ----------------------------------------------------------------- Meghan Fox, individually and on behalf of all others similarly situated v. Ocwen Loan Servicing, LLC, Ocwen Financial Corporation, and Cross Country Home Services, Inc., Case No. 2:14- cv-06404 (D.N.J., October 16, 2014), arises out of the Defendants' deceptive, unlawful, and unfair conduct of collecting unauthorized fees associated with their home warranty and similar home service and maintenance plans. Ocwen Financial Corporation is a financial services holding company that is one of the largest mortgage companies in the United States, and is the fourth largest mortgage servicer in the United States. Ocwen Loan Servicing, LLC and Cross Country Home Services, Inc. are wholly-owned subsidiary of Ocwen Financial Corporation. The Plaintiff is represented by: Nicholas E. Chimicles, Esq. Benjamin F. Johns, Esq. Joseph B. Kenney, Esq. CHIMICLES & TIKELLIS LLP One Haverford Centre, 361 West Lancaster Avenue Haverford, PA 19041 Telephone: (610) 642-8500 Facsimile: (610) 649-3633 E-mail: Nick@chimicles.com BFJ@chimicles.com JBK@chimicles.com OXBOW CONSTRUCTION: Sup. Ct. Defends Ruling in Construction Suit ---------------------------------------------------------------- Amaris Elliott-Engel, writing for The National Law Journal, reports that the Nevada Supreme Court has ruled it neither arbitrary nor capricious for a trial judge to decline to perform a class-action analysis in a lawsuit filed by a homeowners' association against a general contactor over alleged defects. Justice Michael Douglas, writing for the court, said that Nevada Rule of Civil Procedure 23 does not require a class-action analysis when the homeowners association alleges construction defects on behalf of unit owners. "The district court was not required to conduct that analysis at this point in the litigation because nothing in the record indicates that the association sought to proceed as a class action," Justice Douglas said. The Regent at Town Centre Homeowners' Association has sued the contractor that built its built 274 residential units, 10 commercial units and an "office and recreation building." The association alleges Oxbow Construction LLC caused defects in the buildings' exterior walls, exterior stairs, exterior decks, interior walls and ceilings and sloped roofs. The general contractor argued that Nevada's construction defect law -- under which plaintiffs can sue over defects in the common areas of buildings -- does not apply because the development's units were no longer new residences once they were rented as apartments. But the justices said that the association can pursue its lawsuit for construction defects in common elements owned by multiple units as long as one unit is a new residence. The justices also upheld another of the lower court's holdings. Units occupied before their original sale can't be classified as new and can't independently qualify for remedies under Nevada's construction defect law, Justice Douglas said. PEAK CAMPUS: Has Sent Unsolicited Text Messages, Action Claims -------------------------------------------------------------- Evan Greene, individually and on behalf of a class of those similarly situated v. Peak Campus Management, LLC, a Delaware limited liability company, John Doe Nos. 1-10, Case No. 1:14-cv- 08167 (N.D. Ill., October 17, 2014), is brought against the Defendant for sending illegal unsolicited marketing text messages on the Plaintiff's cellular telephones. Peak Campus Management, LLC manages, leases to residents, and operates at least 66 residential properties in at least 24 states, including the residential rental property known as Tailor Lofts, located at 315 S. Peoria St., Chicago, IL, 60607. The Plaintiff is represented by: James Patrick Batson LAW OFFICE OF JAMES P. BATSON 180 North Jefferson Street, #1010 Chicago, IL 60661 Telephone: (914) 523-2278 E-mail: jamespbatsonlegal@gmail.com PITA HOUSE: Faces "Gonzalez" Suit Over Failure to Pay Overtime -------------------------------------------------------------- Alfredo Gonzalez, individually and on behalf of other employees similarly situated v. Pita House, Inc., Kamel Tbakhi, and Ashraf Tbakhi individually, Case No. 1:14-cv-08178 (N.D. Ill., October 18, 2014), is brought against the Defendants for failure to pay overtime wages for hours worked in excess of 40 hours in a week. Pita House, Inc. owns and operates a restaurant within the State of Illinois. The Plaintiff is represented by: Raisa Alicea, Esq. CONSUMER LAW GROUP 6232 N. Pulaski Rd, Ste. 200 Chicago, IL 60646 Telephone: (312) 878-1263 E-mail: ralicea@yourclg.com PLY GEM: Judge Appoints Robbins Geller as Class Action Counsel -------------------------------------------------------------- Cara Salvatore, writing for Law360, reports that a New York federal judge on Oct. 14 appointed Robbins Geller Rudman & Dowd LLP as class counsel and consolidated a set of class actions against siding and window maker Ply Gem Holdings Inc., JPMorgan Securities LLC, Goldman Sachs & Co. and others over Ply Gem's IPO, which the plaintiffs say excluded crucial info about a damaging supply deal with The Home Depot. U.S. District Judge J. Paul Oetken named Robbins Geller, the counsel for three of the pension funds that were vying to be appointed class representative under the Private Securities Litigation Reform Act, as class counsel. And the judge named the Strathclyde Pension Fund, the fund with the highest claimed losses, as class rep. "Appointing the lead plaintiff on the basis of financial interest, rather than first come first serve, was intended [under the PSLRA] to ensure that investors would control the litigation, not lawyers," Judge Oetken said. "The court will appoint the single entity with the largest financial stake in the litigation as lead plaintiff. . . . Strathclyde wins." Strathclyde's individual claimed losses are more than $500,000. It had joined with two other funds, the Electrical Workers Pension Trust Fund of IBEW Local Union No. 58 and the Oklahoma Firefighters Pension and Retirement System, in an effort to be appointed lead plaintiff as a group. That group of three was competing with the Macomb County Employees' Retirement System, represented by Labaton Sucharow LLP, for class rep status. But Judge Oetken said that the group of three, which he called the Triumvirate, couldn't be class rep all together, and so picked Strathclyde alone. Ply Gem was hit with the suits -- which also name Credit Suisse Securities (USA) LLC, UBS Securities LLC, Deutsche Bank Securities Inc., Zelman Partners LLC, BB&T Capital Markets and Stephens Inc. -- earlier this year. They claim that the company's $381 million IPO in May 2013 was marred by a failure to disclose a financially damaging deal with The Home Depot that mandated inventory buybacks and unprofitable high-volume wholesaling. According to the complaint, the $21.00 IPO price quickly melted down to $15.26 per share in August 2013 and $9.90 per share in May. Also named as defendants were Ply Gem CEO Gary Robinette, CFO Shawn Poe, and board members Frederick Iseman, Robert Ferris, Steven Lefkowitz, John Roach, Michael Haley, Timothy Hall and Jeffrey Barber. The financial company defendants were all underwriters of the IPO. The plaintiffs are represented by David Avi Rosenfeld of Robbins Geller Rudman & Dowd LLP and Michael Walter Stocker -- mstocker@labaton.com -- of Labaton Sucharow LLP. Ply Gem and its executives and board members are represented by Alexandra Walsh -- awalsh@paulweiss.com -- of Paul Weiss Rifkind Wharton & Garrison LLP. JPMorgan, Credit Suisse, Goldman Sachs, UBS, Deutsche Bank, Zelman, BB&T and Stephens are represented by Peter Eric Kazanoff -- pkazanoff@stblaw.com -- Thomas Rice -- trice@stblaw.com -- Sara Ann Ricciardi, and Sarah Emily Phillips of Simpson Thacher & Bartlett LLP. The consolidated case is In re: Ply Gem Holdings Inc. Securities Litigation, case number 1:14-cv-03577, in the U.S. District Court for the Southern District of New York. PRANA HOSPITALITY: Suit Seeks to Recover Unpaid Wages & Damages --------------------------------------------------------------- Joel Villar, Primitivo Martinez, Juan Carlos Elores, Edwin Sanchez, Rene Peralta, Edgar Cazarez, and Lisa Brown, on behalf of themselves and other similarly situated v. Prana Hospitality, Inc. and Rajiv Sharma, Case No. 1:14-cv-08211 (S.D.N.Y., October 14, 2014), seeks to recover unpaid wages, liquidated damages lost interest, attorneys' fees and costs, as well as all other legal and equitable relief pursuant to the Fair Labor Standards Act. The Defendants own and operate Pranna Restaurant in New York, New York. The Plaintiff is represented by: Jeffrey Risman, Esq. RISMAN & RISMAN, PC 30 Vesey Street, 6th Floor New York, NY Telephone: (212) 223-6400 Facsimile: (212) 233-6406 E-mail: jrisman@risman-law.com - and - Steven Seltzer, Esq. YUEN ROCCANOVA SELTZER & SVERD P.C. 11 Hanover Square, 13lh Floor New York, NY 10005 Telephone: (212) 608-1178 Facsimile: (212) 608-2913 E-mail: sseltzert@yrsslaw.com REDBUMPER LLC: Has Made Unsolicited Calls, "Zilberman" Suit Says ---------------------------------------------------------------- Victor Zilberman, individually and on behalf of all others similarly situated v. Redbumper, LLC, a Delaware limited liability company, Case No. 1:14-cv-06091 (E.D.N.Y., October 17, 2014), is brought against the Defendant for making unsolicited robocalls to consumer's telephones without prior express written consent. Redbumper, LLC operates a website and mobile application calles Caroffer which is a service that purports to match consumers who are looking to sell their vehicles with interested third party dealership. The Plaintiff is represented by: Matthew Wurgaft, Esq. KARVIS & FILE, PC 1 Meadowlands Plaza, Suite 200 East Rutherford, New Jersey 07073 Telephone: (973) 216-0011 Facsimile: (973) 216-0011 E-mail: mattwurgaft@gmail.com - and - Rafey S. Balabania, Esq. Ari J. Scharg, Esq. John C. Ochoa, Esq. EDELSON PC 350 North La Salle Street, Suite 1300 Chicago, IL Telephone: (312) 589-6370 Facsimile: (312) 589-6378 E-mail: rbalabania@edelson.com ascharg@edelson.com jochoa@edelson.com REGENCY MANAGEMENT: Suit Seeks to Recover Unpaid Wages & Damages ---------------------------------------------------------------- Terry Anistead and Jeff Bailey v. Regency Management Services, LLC, Regency Furniture, Inc., and Regency Furniture of Brandywine, Inc., and Adbu Layyad Case No. 8:14-cv-03242 (D. Md., October 16, 2014), seeks to recover unpaid wages, liquidated damages and attorneys' fees under the Fair Labor Standards Act. The Defendants own, operate, and manage numerous furniture stores located throughout Maryland, Virginia and the District of Columbia. The Plaintiff is represented by: Devan Michael Wae Wang, Esq. Richard P. Neuworth, Esq. LEBAU AND NEUWORTH LLC 606 Baltimore Ave Ste 201 Towson, MD 21204 Telephone: (410) 296-3030 Facsimile: (410) 296-8660 E-mail: dw@joblaws.net rn@joblaws.net REGUS PLC: Can't Escape Class Action Over Undisclosed Fees ---------------------------------------------------------- Natalie Rodriguez, writing for Law360, reports that a California federal judge has refused to free Regus PLC from a putative class action that alleges the office space rental company and its American affiliates failed to disclose certain fees, after finding the company had significant involvement with the affiliates and a website advertising the rental spaces. Pointing to evidence that Regus PLC had significant involvement in the website regus.com and with the U.S. companies, Judge Samuel Conti on Oct. 14 rejected Regus' motion to dismiss for lack of personal jurisdiction. The court noted that during the relevant periods, Regus PLC held the copyright to the website and was named as the owner and operator in a terms and conditions section, among other references. "In response, Regus plc bleats again that [Regus Management Group LLC] handled the interactive features of the website. The only evidence of RMG's involvement, though, is the declaration of Tim Regan, Regus plc's corporate secretary," the court said. "Those assertions directly contradict the text of the website that existed during the relevant time period." Furthermore, the court found prima facie evidence for an agency relationship between Regus PLC and RMG. "Even if RMG actually owned and operated the website, RMG used Regus plc's name and logo," the court said. "The intermingling of the corporate identities was so complete that RMG was not even mentioned in the website's text or terms of use." The plaintiffs, who entered into agreement to rent office space in California and New York during 2011 and 2012, allege that the Regus entities deceived them and others into believing all terms and conditions for office space rentals had been disclosed, but that they were subsequently charged numerous additional fees for office restoration, kitchen amenities, nonuse of telephone services and a "wear and tear" fee. This is the second time the court has tossed Regus' motion to dismiss over lack of personal jurisdiction. The first came in January 2013. Regus, however, argued that during the motion's first rejection, the court said the plaintiffs had failed to make a prima facie case for direct personal jurisdiction and that that barred the plaintiffs from reasserting those theories. The court rejected this view. "Both of those holdings were determinations that plaintiffs had failed to make a prima facie case for jurisdiction at that point. Neither holding precludes plaintiffs from reasserting those theories now," the court said on Oct. 14. Last year, Judge Conti did trim the suit, tossing rackateering and false advertising claims. The court left alive new claims for fraudulent practices and unfairness under the Unfair Competition Law, as well as a violation of a California Public Utilities Code provision that refers to telephone bills. The plaintiffs are represented by Ali A. Aalaei -- ali@arilaw.com -- of Ari Law PC. Regus is represented by Daniel Thomas Rockey -- daniel.rockey@bryancave.com -- Meryl Macklin -- meryl.macklin@bryancave.com -- Christopher John Schmidt, Kenneth Lee Marshall and Stephanie A. Blazewicz -- stephanie.blazewicz@bryancave.com -- of Bryan Cave LLP. The suit is Circle Click Media LLC et al. v. Regus Management Group LLC et al., case number 12-cv-0400-sc, in the U.S. District Court for the Northern District of California. SESAC: Settles Antitrust Class Action for $58.5 Million ------------------------------------------------------- Ed Christman, writing for Billboard, reports that SESAC has agreed to pay $58.5 million to TV stations as part of a settlement with the Television Music License Committee, which was part of a class- action suit filed against the privately-owned performance right organization in 2009 that alleged antitrust behavior by the PRO. The suit was filed by Meredith Corp., E.W. Scripps Co. and Hoak Media LLC (now part of Gray Television Group Inc.) on behalf of local television broadcasters, with TMLC footing the legal bills. Weil, Gotshal & Manges LLP represented the plaintiffs in the suit. The settlement will reimburse stations for about $42.5 million in excess fees from 2008-2014; and reimburse the TMLC's legal fees of $16 million. The settlement was filed on Oct. 15 with Judge Paul A. Engelmayer of the U.S. District Court for the Southern District of New York, who must approve the agreement. The settlement will be funded from an escrow account created when 75% of SESAC was sold to Rizvi Traverse for $591 million. That means that the sellers -- Allen & Co.; entertainment lawyer Freddie Gershon, CEO of Music Theatre International; Ira Smith, former CEO of Music Theatre International and SESAC chairman/CEO Stephen Swid -- will see their payment for selling SESAC reduced to $533 million. "Unlike ASCAP and BMI, the two largest music performing rights organizations, SESAC is not subject to an antitrust consent decree with the U.S. Department of Justice," TMLC chairman Charles Sennet said in a statement. "We were compelled to file this suit to seek some limits on SESAC's ability to charge whatever it wanted for its pool of music copyrights . . . We are pleased that SESAC and the Committee have agreed to a plan spanning more than two decades that we hope will establish a sound business relationship between SESAC and its television station customers." Going forward, SESAC has agreed to negotiate industrywide agreements with the TLMC for 20 years and, if it is unable to agree upon rates, will submit the dispute to binding arbitration. Moreover, the "per program" license will be restored in the 2016 agreement. "Stations will once again be able to rely on the TMLC to provide industrywide licenses and will also have the opportunity to competitively purchase SESAC performance rights for local programming directly from composers and publishers under the per program license," TMLC executive director Will Hoyt said in a statement. "In addition, stations will be able to appeal to a third party to establish reasonable rates if the TMLC and SESAC cannot reach agreement, a benefit not currently available." The settlement came about because Judge Engelmayer denied SESAC's motion for summary judgment and ordered the parties to try and negotiate a settlement. After reviewing the evidence, the court held that it "would comfortably sustain a finding that SESAC . . . engaged in an overall anti-competitive course of conduct designed to eliminate meaningful competition to its blanket license." In agreeing to settle the case, SESAC denied any wrongdoing or violations of antitrust law. SESAC issued a statement on the settlement: "We are happy to announce that SESAC has reached a resolution with the Television Music Licensing Committee (TMLC), allowing us to create fair and equitable agreements on behalf of our songwriters, stakeholders and clients. With this settlement behind us, we look forward to achieving our strategic goals and continuing our focus on the expansion of SESAC's technological innovation and music licensing initiatives allowing us to enhance monetary opportunities for our affiliated songwriters, composers and publishers." With the ending of the TMLC lawsuit, SESAC still has an antitrust lawsuit against it still pending. The Radio Music License Committee (RMLC) filed the suit in October 2012 in U.S. Eastern District Court of Pennsylvania. On Dec. 23, 2013, a magistrate greenlighted that suit for a trial to be heard by Judge C. Darnell. SOSH BRANDS: Sued in New York Over FLSA Violations -------------------------------------------------- Rachel Wind, on behalf of herself and all others similarly situated v. Sosh Brands, Inc. d/b/a The Whales Tale and Sosh Andriano, individually, Case No. 2:14-cv-06113 (E.D.N.Y., October 18, 2014), is brought against the Defendant for violation of the Fair Labor Standards Act. The Defendants own and operate a restaurant located at 81 Fort Salonga Road, Northport, New York 11768. The Plaintiff is represented by: Jose G. Santiago, Esq. THE SANTIAGO LAW FIRM, P.C. 201 Moreland Road, Suite 10 Hauppauge, NY 11788 Telephone: (631) 240-4355 Facsimile: (631) 406-4911 E-mail: jose@santiagolawfirm.com SYNGENTA CORPORATION: Sued Over Damages Caused by Viptera Corn -------------------------------------------------------------- D & C Thornton Farms, Denny Cullen Thornton, Jr., Rodney Duncan, Brunson Bend Farms and Huett Brunson, individually and on behalf of a Class of all others similarly situated v. Syngenta Corporation, Syngenta Crop Protection, LLC, and Syngenta Seeds, Inc., Case No. 3:14-cv-01997 (N.D. Ala., October 17, 2014), is brought against the Defendants for failure to provide an 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 commercial seed business, developing, producing, and selling, through dealers and distributors or directly to growers, a wide range of agricultural products throughout the United States, including corn seed with certain genetically modified traits. The Plaintiff is represented by: Roman A. Shaul, Esq. Wilson Daniel Miles III, Esq. BEASLEY ALLEN CROW METHVIN PORTIS & MILES PC PO Box 4160 Montgomery, AL 36103-4160 Telephone: (334) 269-2343 Facsimile: (334) 954-7555 E-mail: roman.shaul@beasleyallen.com dee.miles@beasleyallen.com TRUMP MODEL: "Palmer" Suit in N.Y. Seeks to Recover Unpaid Wages ---------------------------------------------------------------- Alexia Palmer, individually and on behalf of all others similarly situated v. Trump Model Management, LLC, Corrine Nicolas, individually, and Jane or John Doe, individually, Case No. 1:14- cv-08307 (S.D.N.Y. Oct 15, 2014), seeks to recover unpaid wages, actual, incidental, consequential, and compensatory damages, pre- and post-judgment interest, and attorneys' fees and costs pursuant to the Fair Labor Standards Act. The Defendants own and operate a modeling agency in New York. The Plaintiff is represented by: Naresh M. Gehi, Esq. LAW OFFICES OF N.M. GEHI, P.C. 118-21 Queens Boulevard, Ste. 411 Forest Hills, NY 11375 Telephone: (718) 263-5999 Facsimile: (718) 263-1685 E-mail: nmgehi@gmail.com WELLBENDERS DIRECTIONAL: Sued Over Failure to Pay Overtime Wages ---------------------------------------------------------------- Alex Ramirez, individually and on behalf of others similarly situated v. Wellbenders Directional Services, LLC, Case No. 4:14- cv-02971 (S.D. Tex., October 17, 2014), is brought against the Defendant for failure to pay overtime compensation. Wellbenders Directional Services, LLC is an oilfield service company providing Measuring While Drilling and directional drilling services to the oil and gas industry. The Plaintiff is represented by: Richard J. Burch, Esq. BRUCKNER BURCH PLLC 8 Greenway Plaza, Suite 1500 Houston, TX 77046 Telephone: (713) 877-8788 Facsimile: (713) 877-8065 E-mail: rburch@brucknerburch.com WEST VIRGINIA: Teachers' Retirement Fund Class Action Can Proceed ----------------------------------------------------------------- Amanda Bronstad, writing for The National Law Journal, reports that West Virginia's public school teachers are going to trial over losses to their retirement plans after a judge refused to toss out a class action filed on their behalf. Kanawha County, W.Va., Circuit Court Judge Carrie Webster denied summary judgment to the West Virginia Consolidated Public Retirement Board, which administers the state's retirement plans, and The Variable Annuity Life Insurance Co., or VALIC. The class action, filed in 2008 by a teacher in Wheeling, alleges that VALIC misrepresented to teachers and other school employees the financial risk of an annuity that ended up stripping them of their retirement benefits. The defendants moved for summary judgment in 2011 on statute of limitation grounds. In her ruling on Oct. 16, Judge Webster noted that the plaintiffs were teachers and school employees, not financial experts. "As plaintiff's counsel points out, these teachers and school employees were accustomed to simply having a portion of their gross income withheld from their paycheck with the promise from the State of West Virginia that when they retired they would receive a monthly payment consistent with a statutory formula," Judge Webster wrote. A class certification hearing is set for January 2015 and a trial later next year, said plaintiffs attorney Harry Bell, managing partner of The Bell Law Firm in Charleston. He estimated that between 3,400 and 15,000 teachers could comprise the class. "We're getting into and having a very heavy level of discovery this November and December on the class certification and underlying case," Mr. Bell said. Charleston attorney Gary Pullin -- gpullin@pffwv.com -- a member of Pullin, Fowler, Flanagan, Brown & Poe who represents the West Virginia Consolidated Public Retirement Board, did not respond to a request for comment. VALIC, an American International Group Inc. company, is represented by Thomas Hurney -- thurney@jacksonkelly.com -- a member of Jackson Kelly in Charleston. Rick Sdao, associate general counsel of Houston-based VALIC, said the plaintiff had purchased the investment in 1992. "We believe the limitations period had run," he said. "The court has disagreed with us, and we'll have to review our options going forward." The case dates to the early 1990s, when the state's teachers and school employees were offered investment options for their retirement portfolios, including VALIC's annuity, as part of a shift away from the state's pension fund to a defined-contribution plan. The class action alleges that VALIC and the state's retirement board breached their fiduciary duties to teachers and other school employees. Mr. Bell called it a "smoke and mirrors scheme" that started out when representatives aggressively showed up in school break rooms to pitch the annuity to teachers. "They go in there and think they're talking to somebody at the consolidated public retirement board and, instead, it's somebody from VALIC with all their information, all their details, telling them the state will go under and you need to switch to this plan," he said. "VALIC basically made an absolute fortune on this." The case has jumped back and forth twice from the U.S. District Court in the Southern District of West Virginia to Kanawha County Circuit Court. The class seeks millions of dollars in damages, plus punitive damages. Meanwhile, the retirement board and the West Virginia Investment Management Board, which invests teacher retirement savings, have sued VALIC to get their money back. After losing rulings on summary judgment last year, the boards petitioned the West Virginia Supreme Court of Appeals, which heard oral arguments on Sept. 30. WESTCONSIN CREDIT: Unlawfully Disclosed Personal Info, Suit Says ---------------------------------------------------------------- Patrick McDonough, on behalf of himself and all others similarly situated v. WESTconsin Credit Union, Case No. 3:14-cv-00705 (W.D. Wis., October 16, 2014), alleges that the Defendant unlawfully disclosed the driver's license number and social security number of the Plaintiff while filing an action against the Plaintiff for recovery of an unpaid loan balance. WESTconsin Credit Union is engaged in the business of lending of money and subsequent collection of debt. The Plaintiff is represented by: Thomas J. Lyons, Sr., Esq. LYONS LAW FIRM, P.A. 367 Commerce Court Vadnais Heights, MN 55127 Telephone: (651) 770-9707 E-mail: tlyons@lyonslawfirm.com - and - Eric L. Crandall, Esq. CRANDALL LAW OFFICES, SC 1237 Knowles Avenue North, PO Box 27 New Richmond, WI 54017 Telephone: (715) 246-1010 E-mail: consumerlaw@frontiernet.net - and - Thomas J. Lyons, Jr., Esq. CONSUMER JUSTICE CENTER P.A. 367 Commerce Court Vadnais Heights, MN 55127 Telephone: (651) 770-9707 E-mail: tommycjc@aol.com WYNDHAM WORLDWIDE: Newark Judge Dismisses Shareholder Suit ---------------------------------------------------------- Charles Toutant, writing for New Jersey Law Journal, reports that a federal judge in Newark has dismissed a shareholder suit claiming hotel operator Wyndham Worldwide failed to fend off breaches of its computer networks and then declined to litigate against the employees responsible for allowing the breaches based on advice from conflicted counsel. The judge rejected the plaintiff's claim that the law firm representing Wyndham in the shareholder suit, Kirkland & Ellis, had a conflict of interest because it also represented the company in a separate suit related to the hacking incidents that was filed by the Federal Trade Commission. The case stems from three attacks on the company's data network -- one in 2008 and two in 2009 -- in which hackers obtained personal and financial data from 619,000 of the company's customers. The shareholder who filed the suit, Dennis Palkon of Reading, Pa., claimed the company failed to establish adequate security measures to prevent the cyber-attacks. Before filing the suit, he sent the company directors a letter, demanding an investigation into which company employees are responsible for failing to safeguard customer data. Mr. Palkon's letter to the board, dated June 11, 2013, called upon Wyndham to file a suit for breach of fiduciary duty, indemnification and contribution against any current or former employee identified as being responsible for failing to prevent the attacks. Wyndham considered the demand and discussed it with counsel but declined to file any such suit, according to court documents. The FTC sued Wyndham over the data breaches in March 2013. In June of this year, a federal judge denied Wyndham's motion to dismiss the FTC suit, and the company has appealed that ruling to the U.S. Court of Appeals for the Third Circuit. Mr. Palkon filed the shareholder suit Feb. 25. His suit asserted that, in addition to failing to establish mechanisms to prevent the theft of customers' data, the company failed to timely disclose the breaches after they occurred. He claimed the breaches hurt the company's reputation and cost it significant legal fees. He also claimed the board's decision to refuse his litigation demand was improper, in part because the firm that advised it to do so had a conflict of interest. Wyndham, which is based in Parsippany, N.J., and operates hotel chains such as Days Inn and Howard Johnson, moved to dismiss Mr. Palkon's suit, arguing that the board's refusal to carry out his litigation demand was a good-faith exercise of business judgment. The company also argued that the complaint failed to state a claim upon which relief can be granted, and that the alleged damages are unripe. U.S. District Judge Stanley Chesler of the District of New Jersey said a shareholder seeking to rebut the presumption that a company's decision was made on an informed basis and in the company's best interests must demonstrate the company directors acted in bad faith or without conducting a reasonable investigation. Mr. Palkon failed to meet that burden, Judge Chesler said. In an attempt to demonstrate Wyndham's directors acted in bad faith, Mr. Palkon claimed that the company wrongly refused his litigation demand based on advice from conflicted counsel. He relied on Stepak v. Addison, an Eleventh Circuit case from 1994. In that case, a company's outside counsel was found incapable of evaluating a shareholder demand because the same firm had represented the company in related criminal proceedings. The panel in Stepak found the law firm had divided loyalties to the client because its continuing duty to preserve the confidences of its clients in the criminal case hampered its investigation of the subsequent shareholder allegations. But Judge Chesler said Kirkland & Ellis did not face the same conflict as the firm in the Stepak case because its obligations were to act in Wyndham's best interest in both the FTC case and the shareholder case, Judge Chesler said. In addition, Mr. Palkon claimed that Wyndham general counsel Scott McLester was conflicted when he advised the board on the demand letter, because he faced personal liability in connection with the cyber-attacks. But Mr. Palkon did not provide any support for his assertion that Mr. McLester was exposed to any personal liability because of the demand letter, Judge Chesler said. Judge Chesler also rejected Mr. Palkon's claim that the board's investigation of the demand letter was predetermined and unreasonable. Finding no prescribed procedure for boards to follow when investigating such a letter, Judge Chesler said the numerous steps the board took in response to the letter indicated the plaintiff failed to make a showing of gross negligence. Mr. Palkon's lawyers, David Wollmuth and Frederick Kessler of Wollmuth, Maher & Deutsch in Newark, did not return calls for comment. James Gillespie -- james.gillespie@kirkland.com -- of Kirkland & Ellis in Washington, D.C., who represented Wyndham, said he and his client were pleased with the decision. "In our view, the court was exactly on point in its legal analysis," Mr. Gillespie said. * Top Plaintiffs' Law Firms Show Higher Chances of Case Success --------------------------------------------------------------- Jim Patterson, in an article for Vanderbilt University, reports that top five plaintiffs' law firms achieve the best results for shareholders in class action mergers and acquisitions litigation because they aggressively litigate their cases, instead of adopting more passive strategies favored by less well-known firms, according to new research. "We find that the presence of a top plaintiffs' law firm is significantly and positively associated with a higher probability of lawsuit success," said Randall S. Thomas, John S. Beasley II Professor of Law and Business at Vanderbilt Law School and his fellow researchers in the paper "Zealous Advocates or Self- interested Actors? Assessing the Value of Plaintiff's Law Firms in Merger Litigation." "These results hold even after controlling for selection bias -- the likelihood that top law firms get to pick better cases that have higher chances of success." The paper, being prepared for submission to a peer-reviewed publication, was written by Thomas along with C. N. V. Krishnan of the Weatherhead School of Management at Case Western Reserve University and Steven Davidoff Solomon from UC Berkeley School of Law. The research The researchers examined 1,739 class actions that challenged the fairness of mergers and acquisitions transactions from 2003 to 2012. Plaintiff law firms were categorized into top 10 and non-top 10 firms based on various reputational measures. They were further pared to a top five list based on their popularity with informed plaintiffs and ability to obtain large attorneys' fees awards. In 2013, 97.5 percent of larger mergers and acquisitions transactions were targeted by a lawsuit. Law firms that specialize in bringing shareholder class actions that challenge the terms of mergers and acquisitions deals are often characterized as "leeches" that have a strategy of filing lawsuits in hopes of generating a quick settlement and avoiding the expense of a trial. These settlements many times are believed to profit the law firms more than their clients. But the top law firms in the study do not pursue that strategy, according to the study. "We find that top plaintiffs' law firms do engage in more vigorous litigation and produce statistically significantly superior results," the study says. "Adjusting for . . . selection bias, we still find that topmost five law firms file more documents, have fewer cases dismissed, win more procedural motions and obtain more substantive settlements." Reform The researchers suggest that their findings be "grist for pursuing any reform effort of shareholder litigation generally, such as judicial involvement in the appointment of lead plaintiffs' counsel in shareholder class action litigation." "In other words, not all plaintiffs' law firms are alike and lawmakers, judges and regulators should act accordingly," they say. ********* 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 202-362-8552. * * * End of Transmission * * *