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C L A S S A C T I O N R E P O R T E R
Thursday, October 30, 2014, Vol. 16, No. 216
Headlines
ACCURATE PERSONNEL: Sued Over Breach of Fair Labor Standards Act
AMERICAN ELECTRIC: Continues to Defend Wage & Hour Suit v. PSO
AMERICAN ELECTRIC: Seeks to Dismiss Gavin Landfill Case
AMERICAN ELECTRIC: Faces National Do Not Call Registry Lawsuit
AMERICAN HOME: Denial of Matrix Benefits to Holleyhead Upheld
AMREIT INC: Faces Stockholders' Suit in Harris County, Texas
ARS NATIONAL: "Nunn" Suit Seeks to Recover Unpaid Overtime Wages
ASSETMARK INC: Dismissal of Breach of Fiduciary Duty Claim Stands
B&G FOODS: Bid to Dismiss Claims Filed in Six Class Actions
B&G FOODS: Not Yet Served With "Alduey" Complaint
BANK OF AMERICA: Faces Montgomery Suit Over ISDAfix Manipulation
BANK OF AMERICA: Faces Genesee Suit Over ISDAfix Manipulation
BRISTOL-MYERS: Still a Defendant in Average Wholesale Price Suits
BRISTOL-MYERS: 6,300+ Injury Claims Filed Over Plavix Drug
BRISTOL-MYERS: Still a Defendant in Injury Suits Over Reglan Drug
BRISTOL-MYERS: 400+ Injury Suits Still Pending Over Byetta Drug
CHATTEM INC: Fights Motion to Certify Class in Mouthwash Suit
COLGATE-PALMOLIVE: Retirement Income Plan Settled Class Action
COMCAST CORP: Counsel Wants Boston Cluster Cases Transferred
COMCAST CORP: Comprehensive Settlement for 23 Cases Withdrawn
DAKOTA GROWERS: Obtains Final OK of $5MM False Ad Suit Settlement
DELPHI AUTOMOTIVE: Not Named as Defendant in GM Recall Suits
DUPONT: Tree-Cutting Begins At Peninsula Park After Settlement
EDUCATION MANAGEMENT: Pomerantz Files Securities Class Action
ELNA CO: Faces "Sound" Suit Over Tantalum Capacitors-Price Fixing
ENDEAVOUR ENERGY: Home Owners Pay for Bushfire Hazard Reduction
EZCORP INC: Bernstein Litowitz Files Securities Class Action
FLOUNDERDAWG LLC: Faces "Clay" Suit Over Failure to Pay Overtime
GLAXOSMITHKLINE LLC: Dismissal of Express Warranty Claim Upheld
GREENWAY HEALTH: TCPA Suit Class Cert. Denied Without Prejudice
GT ADVANCED: Gainey McKenna Files Securities Class Action
GT ADVANCED: Faces Deerhaven Capital Suit Over False Fin'l Report
GYRODATA INC: "Wall" Suit Seeks to Recover Unpaid Wages & Damages
HERTZ CORP: Judge Grants Attorneys' Fees in "Sobel" Class Suit
IMPERIAL OIL: Price Fixing Plaintiffs Case Use Wiretap Evidence
INFINEON TECHNOLOGIES: DRAM Price-Fixing Class Action Settled
INGRAM MICRO: Received Additional $6.6 Million From Settlement
INTERNATIONAL LOGGING: Tex. Suit Seeks to Recover Unpaid OT Wages
INTUITIVE SURGICAL: Plaintiffs Decline to Seek Review of Decision
INTUITIVE SURGICAL: Plaintiffs in "Abrams" Did Not Amend Suit
INTUITIVE SURGICAL: Faces 93 Suits Over da Vinci Surgical System
INTUITIVE SURGICAL: Plaintiff Appeals Judgment in "Taylor" Case
J.C. PENNEY: Judge Denies Bid to Dismiss "Anjum" Labor Suit
JACK RABBIT: Has Refused to Pay Minimum & OT Wages, Action Claims
KEURIG GREEN: SEC Ends Four-Year Investigation Into Bookkeeping
LEE PUBLICATIONS: $3.2MM Dalton Case Settlement Gets Initial OK
LOGMEIN INC: Facing Unfair Competition Lawsuit in California
M&T BANK: Financial Regulator Wants to Intervene in Class Action
MEDGUARD LLC: Faces "Rosado" Suit Over Failure to Pay Overtime
MEDTRONIC INC: 9th Cir. Dismisses Sultan Labor Law Class Action
MEMORIAL HOSPITAL: Faces Class Action Over Florida PIP Fees
MERCANTIL COMMERCEBANK: Does Not Pay Workers Properly, Suit Says
MICHIGAN PETROLEUM: Claims vs. Consumers Energy to be Dismissed
MILLENNIAL MEDIA: Pomerantz Law Firm Files Securities Class Action
MONTICELLO CITY, MN: Issues Bond to Cover Class Action Costs
NATIONAL COLLEGIATE: Sued Over Breach of Fair Labor Standards Act
NEENAH JOINT: Claims Dismissal in Teachers' Class Action Reversed
NMJ INC: Faces "Ruiz" Suit Over Failure to Pay Overtime Wages
NORTHROP GRUMMAN: "Carlson" Case Plaintiffs May Amend Complaint
NOVA SCOTIA: Class Action Lawyer Won't Appeal Attorney Fee Ruling
OHIO: Claimants' Response Rate in BWC Class Action Settlement Low
OMNICARE INC: Files Answer to "Lee" Class Action
OMNICARE INC: 6th Cir. Affirmed District Court Dismissal Order
OMNICARE INC: Nov. 3 Oral Argument at US Supreme Court
OSI SYSTEMS: Nov. 3 Hearing on Bid to Dismiss Amended Suit
PDL BIOPHARMA: Pomerantz Law Firm Files Securities Class Action
PEPSICO: Aunt Jemima's Heirs File $2-Bil. Royalty Class Action
PROGRESSIVE DIRECT: Court Rules in Unfair Practices Case
RED BULL: Class Action Settlement Raises "Ascertainability" Issue
RETROPHIN INC: Sued in S.D.N.Y. Over Misleading Financial Reports
REXALL SUNDOWN: Falsely Marketed Biloba Products, Suit Claims
ROYAL CARIBBEAN: SC Denied Request to Review Arbitration Order
RUSSELL E. BURKETT: Chesapeake's Motions to Vacate Rulings Denied
SHAC LLC: Court Tosses Bid to Dismiss "Luna" TCPA Class Action
SMARTHEAT INC: Had Difficulty Retaining CFO Due to Class Action
SMARTHEAT INC: To Vigorously Defend Against "Leshinsky" Suit
SMURFIT-STONE CONTAINER: Mehtas' Claim vs. Rock-Tenn Sub Survives
SOUTH AFRICA: George Dickerson School Gets Reimbursement
SYNGENTA CROP: Faces "McCorkle" Suit Damages Caused by Corn
SYNGENTA CROP: Faces "Nixon" Suit Over Damages Caused by Corn
TRANS UNION: Court Denies Bid to Narrow Claims in "Dennis" Suit
TRUMP MODEL: Model Files Class Action Over Salary
USAA LIFE: "Saunders" Case Transferred to W.D. Texas Court
VALDEZ AND TEPI: "Rosas" Suit Seeks to Recover Unpaid Overtime
WAL-MART STORES: Drivers File Suit Over Alleged Wage-Theft
WEATHERFORD INTERNATIONAL: Approval of Settlement Pending
WELLS FARGO: W. Stonhaus' Contract Breach Claim Is Time-Barred
WELLS FARGO: Calif. Appeals Court Affirms TRO in "Lofton" Case
WELLS FARGO: Sued in N.D. California Over Illegal Debt Inquiry
WEST BANCORPORATION: Appeal Should Be Decided in 2015
WORLDGATE GROUP: "Hoyos" Suit Seeks to Recover Unpaid Overtime
YELP INC: Ninth Circuit Affirmed Class Action Dismissal
YELP INC: Facing Two Securities Class Action Lawsuits
YRC INC: Wins Favorable Ruling in Mitchell's Discrimination Case
*********
ACCURATE PERSONNEL: Sued Over Breach of Fair Labor Standards Act
----------------------------------------------------------------
Kenneth McDowell, Elma Pelaez and Maria Ortegon, on behalf of
themselves and all other persons similarly situated v. Accurate
Personnel, LLC, Case No. 1:14-cv-08211 (N.D. Ill., October 20,
2014), is brought against the Defendant for violation of the Fair
Labor Standards Act.
Accurate Personnel, LLC is engaged in the business of employing
day or temporary laborers to provide services, for a fee, to third
party clients companies pursuant to contracts between itself and
the third party client companies.
The Plaintiff is represented by:
Alvar Ayala, Esq.
Jenee Gaskin, Esq.
Christopher J. Williams, Esq.
WORKERS' LAW OFFICE, P.C.
401 S. LaSalle, Suite 1400
Chicago, IL 60605
Telephone: (312) 795-9121
Facsimile: (312) 929-2207
E-mail: aayala@wagetheftlaw.com
jgaskin@wagetheftlaw.com
cwilliams@wagetheftlaw.com
AMERICAN ELECTRIC: Continues to Defend Wage & Hour Suit v. PSO
--------------------------------------------------------------
Management will continue to defend the wage and hours lawsuit
against Public Service Company of Oklahoma, American Electric
Power Company, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 23, 2014, for the
quarterly period ended September 30, 2014.
In August 2013, PSO received an amended complaint filed in the
U.S. District Court for the Northern District of Oklahoma by 36
current and former line and warehouse employees alleging that they
have been denied overtime pay in violation of the Fair Labor
Standards Act. Plaintiffs claim that they are entitled to
overtime pay for "on call" time. They allege that restrictions
placed on them during on call hours are burdensome enough that
they are entitled to compensation for these hours as hours worked.
Plaintiffs also filed a motion to conditionally certify this
action as a class action, claiming there are an additional 70
individuals similarly situated to plaintiffs. Plaintiffs seek
damages in the amount of unpaid overtime over a three-year period
and liquidated damages in the same amount.
In March 2014, the federal court granted plaintiffs' motion to
conditionally certify the action as a class action. Notice was
given to all potential class members and an additional 43
individuals opted in to the class, bringing the plaintiff class to
79 current and former employees. Management will continue to
defend the case. Management is unable to determine a range of
potential losses that are reasonably possible of occurring.
AMERICAN ELECTRIC: Seeks to Dismiss Gavin Landfill Case
-------------------------------------------------------
American Electric Power Company, Inc. said in its Form 10-Q Report
filed with the Securities and Exchange Commission on October 23,
2014, for the quarterly period ended September 30, 2014, that in
August 2014, a complaint was filed in the Mason County, West
Virginia Circuit Court against AEP, American Electric Power
Service Corporation, Ohio Power Company, and an individual
supervisor alleging wrongful death and personal injury/illness
claims arising out of purported exposure to coal combustion by-
product waste at the Gavin Plant landfill. The lawsuit was filed
on behalf of 77 plaintiffs, consisting of 39 current and former
contractors of the landfill and 38 family members of those
contractors. Eleven of the family members are pursuing personal
injury/illness claims and the remainder are pursuing loss of
consortium claims. The plaintiffs seek compensatory and punitive
damages, as well as medical monitoring. In September 2014,
management filed a motion to dismiss the complaint, contending the
case should be filed in Ohio. That motion is pending. Management
will continue to defend against the claims. Management is unable
to determine a range of potential losses that are reasonably
possible of occurring.
AMERICAN ELECTRIC: Faces National Do Not Call Registry Lawsuit
--------------------------------------------------------------
American Electric Power Company, Inc. said in its Form 10-Q Report
filed with the Securities and Exchange Commission on October 23,
2014, for the quarterly period ended September 30, 2014, that in
May 2014, AEP Energy was served with a complaint filed in the U.S.
District Court for the Northern District of Illinois, alleging
violations of the Telephone Consumer Protection Act (TCPA). The
plaintiff alleges that he received telemarketing calls on behalf
of AEP Energy despite having registered his telephone number on
the National Do Not Call Registry. Plaintiff seeks to represent a
class of persons who allegedly received such calls. Plaintiff
seeks statutory damages under the TCPA on behalf of himself and
the alleged class as well as injunctive relief.
"We will continue to defend this case. We believe the provision we
have is adequate. We are unable to determine the amount of
potential additional losses that are reasonably possible of
occurring," the Company said.
AMERICAN HOME: Denial of Matrix Benefits to Holleyhead Upheld
-------------------------------------------------------------
In IN RE: DIET DRUGS (PHENTERMINE/FENFLURAMINE/DEXFENFLURAMINE)
PRODUCTS LIABILITY LITIGATION. THIS DOCUMENT RELATES TO: SHEILA
BROWN, et al., v. AMERICAN HOME PRODUCTS CORPORATION, CIVIL ACTION
NO. 99-20593, NO. 2:16 MD 1203, (E.D. Penn.), James P. Holleyhead,
a class member under the Diet Drug Nationwide Class Action
Settlement Agreement with Wyeth, seeks benefits from the AHP
Settlement Trust. Based on the record developed in the show cause
process, the court must determine whether the claimant has
demonstrated a reasonable medical basis to support his claim for
Matrix Compensation Benefits.
Under the Settlement Agreement, only eligible claimants are
entitled to Matrix Benefits. A claimant is considered eligible for
Matrix Benefits if he or she is diagnosed with mild or greater
aortic and/or mitral regurgitation by an echocardiogram performed
between the commencement of Diet Drug use and the end of the
Screening Period.
"As claimant has not established a reasonable medical basis for
finding that he had at least mild aortic regurgitation between the
commencement of Diet Drug use and the end of the Screening Period,
the Settlement Agreement requires that his claim be denied," ruled
District Judge Harvey Bartle, III, in a memorandum dated October
16, 2014. "Therefore, we will affirm the Trust's denial of Mr.
Holleyhead's claim for Matrix B-1, Level III benefits," he added.
A copy of the ruling is available at http://is.gd/PSeOoYfrom
Leagle.com.
GREGORY P. MILLER, Special Master, represented by GREGORY P.
MILLER -- gregory.miller@dbr.com -- DRINKER BIDDLE & REATH LLP.
AMREIT INC: Faces Stockholders' Suit in Harris County, Texas
------------------------------------------------------------
AmREIT, Inc. said in its Form 10-Q/A Report (Amendment No. 1)
filed with the Securities and Exchange Commission on October 23,
2014, for the quarterly period ended June 30, 2014, that two of
the Company's alleged stockholders, filed on July 14, 2014, a
stockholder derivative petition and purported class action in the
Harris County, Texas District Court, seeking injunctive relief in
connection with alleged breach of fiduciary duty claims against
each of the Company's directors in connection with the board's
consideration of an unsolicited proposal from Regency Centers
Corporation, announced on July 10, 2014, to acquire all of the
outstanding shares of the Company's common stock. The complaint
also names the Company as a nominal defendant in connection with
the shareholder derivative claim. There have been no further
pleadings in this action since the filing of the complaint. The
Company believes these claims are without merit and intends to
defend against the claims vigorously.
ARS NATIONAL: "Nunn" Suit Seeks to Recover Unpaid Overtime Wages
----------------------------------------------------------------
Danielle Nunn, individually, and on behalf of all others similarly
situated, who consent to their inclusion in a collective action v.
ARS National Services, Inc., A Foreign Limited Liability
Corporation, Case No. 3:14-cv-01260 (M.D. Fla., October 17, 2014),
seeks to recover unpaid overtime compensation and other relief
under the Fair Labor Standards Act.
ARS National Services, Inc. is a financial services company that
provides national debt and accounts receivable collections
services.
The Plaintiff is represented by:
Mitchell L. Feldman, Esq.
FELDMAN & MORGADO, PA
501 N Reo St
Tampa, FL 33609
Telephone: (813) 639-9366
Facsimile: (813) 639-9376
E-mail: mfeldman@ffmlawgroup.com
ASSETMARK INC: Dismissal of Breach of Fiduciary Duty Claim Stands
-----------------------------------------------------------------
Michael J. Goodman, Clarice Yassick, Steven Yoelin, Martin Wasser,
and Edward Schiller commenced a securities fraud class action
against defendants AssetMark, Inc., Genworth Holdings, Inc., and
Gurinder S. Ahluwalia on December 22, 2009. They allege that
defendants violated Section 10(b) of the Securities Exchange Act
of 1934, 15 U.S.C. Section 78j(b), and Securities and Exchange
Commission Rule 10b-5, 17 C.F.R. Section 240.10b-5, and breached
their fiduciary duties to plaintiffs.
In an oral ruling on March 30, 2011, the Honorable Leonard D.
Wexler granted defendants' motion to dismiss the breach of
fiduciary duty claim pursuant to the Securities Litigation Uniform
Standards Act of 1998 (SLUSA), which states that "[n]o covered
class action based upon the statutory or common law of any State
. . . may be maintained in any State or Federal court by any
private party alleging . . . a misrepresentation or omission of a
material fact in connection with the purchase or sale of a covered
security."
On April 15, 2014, after the case was reassigned to District Judge
Joseph F. Bianco, the Court denied plaintiffs' motion for class
certification of the federal securities law claims. Now, as the
first step in their effort to attain class certification of their
previously dismissed breach of fiduciary duty claim, plaintiffs
move for reconsideration of Judge Wexler's order dismissing that
claim in light of the Supreme Court's recent decision in
Chadbourne & Parke LLP v. Troice, 134 S.Ct. 1058 (2014).
Judge Bianco, however, denies the motion for reconsideration and
concluded that Judge Wexler's decision remains good law.
The case is MICHAEL J. GOODMAN, ET AL., Plaintiffs, v. ASSETMARK,
INC., ET AL., Defendants, NO. 09-CV-5603 (JFB)(GRB), (E.D. N.Y.).
A copy of the Court's October 17, 2014 memorandum and order
is available at http://is.gd/IedorYfrom Leagle.com.
Defendants are represented by Mark S. Mulholland --
mmulholland@rmfpc.com -- of Ruskin Moscou Faltischek, P.C.,
Uniondale, NY, and by Reid L. Ashinoff --
reid.ashinoff@dentons.com -- Brendan E. Zahner --
brendan.zahner@dentons.com -- and Sandra Denise Hauser --
sandra.hauser@dentons.com -- of Dentons US LLP, Avenue of the
Americas, New York, NY, and by Joshua Seth Akbar --
joshua.akbar@dentons.com -- of Dentons US LLP, Suite Phoenix, AZ.
B&G FOODS: Bid to Dismiss Claims Filed in Six Class Actions
-----------------------------------------------------------
B&G Foods, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 23, 2014, for the
quarterly period ended September 27, 2014, that no discovery has
commenced in any of six class action lawsuits filed against Pirate
Brands, and a motion to dismiss the claims is pending.
Pirate Brands has been named as a defendant in six duplicative
putative class action lawsuits filed in United States District
Courts, two of which were filed prior to our ownership of Pirate
Brands. The cases allege that Pirate Brands' products are
improperly labeled as "natural" because they contain "genetically
modified" and "highly processed" ingredients. Each case was filed
on behalf of a plaintiff and purported similarly situated
individuals. The first case was filed in December 2012 in the
Eastern District of New York by Milana Vasquez. A duplicative
case was then filed in February 2013 in the Northern District of
California by Michael Hill, which case has been transferred to the
Eastern District of New York. Identical actions were then filed
in July 2013 in the Southern District of Florida (by Janelle
Ruffino), the Western District of Washington (by Victoria
Molinarolo), the Central District of California (by Nicolle
DiSimone) and the District of New Jersey (by Randy Goldberg).
Each complaint seeks monetary damages, injunctive relief and
attorneys' fees. Pirate Brands was successful in its efforts to
have all six cases transferred to the Eastern District of New York
to be coordinated before a single judge.
"We intend to vigorously defend these lawsuits and believe that
the plaintiffs' claims are without merit. No discovery has
commenced in any of the cases, and a motion to dismiss the claims
is pending. Based upon information currently available, we do not
believe the ultimate resolution of these actions will have a
material adverse effect on B&G Foods' consolidated financial
position, results of operations or liquidity," the Company said.
B&G FOODS: Not Yet Served With "Alduey" Complaint
-------------------------------------------------
B&G Foods, Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 23, 2014, for the
quarterly period ended September 27, 2014, that B&G Foods has been
named as a defendant in two putative class action lawsuits that
allege that certain of the Company's products are improperly
labeled as "natural" because they contain "genetically modified"
and/or and "highly processed" ingredients.
The first case was filed in the United States District Court for
the Southern District of Florida in September 2014 by Bonnie Jo
Pettinga, Caleb Johnson, Shawn Teufel and Joseph Grey,
individually and purportedly on behalf of similarly situated
individuals. This action was voluntarily dismissed without
prejudice by the plaintiffs on or about October 17, 2014.
The second case was filed in the United States District Court for
the Southern District of New York in October 2014 by Carolina
Alduey, purportedly on behalf of herself and similarly situated
individuals. Each complaint seeks monetary damages, injunctive
relief and attorneys' fees. B&G Foods has yet to be served with
the complaint.
"We intend to vigorously defend these lawsuits and believe that
the plaintiffs' claims are without merit. Based upon information
currently available, we do not believe the ultimate resolution of
these actions will have a material adverse effect on B&G Foods'
consolidated financial position, results of operations or
liquidity," the Company said.
BANK OF AMERICA: Faces Montgomery Suit Over ISDAfix Manipulation
----------------------------------------------------------------
County of Montgomery, Pennsylvania, individually, and on behalf
of all those similarly situated v. Bank of America Corporation, et
al., Case No. 2:14-cv-06427 (D.N.J., 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:
James E. Cecchi, Esq.
CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO, P.C.
5 Becker Farm Road
Roseland, NJ 07068
Telephone: (973) 994-1700
Facsimile: (973) 994-1744
E-mail: jcecchi@carellabyrne.com
BANK OF AMERICA: Faces Genesee Suit Over ISDAfix Manipulation
-------------------------------------------------------------
Genesee County Employees' Retirement System, individually and on
behalf of all others similarly situated v. Bank of America
Corporation, et al., Case No. 1:14-cv-08365 (S.D.N.Y., October 20,
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:
Gregory S. Asciolla, Esq.
Jay L. Himes, Esq.
David J. Goldsmith
Robin A. Van Der Meulen
Matthew J. Perez
LABATON SUCHAROW LLP
140 Broadway
New York, NY 10005
Telephone: (212) 907-0700
Facsimile: (212)818-0477
E-mail: gasciolla@labaton.com
jhimes@labaton.com
dgoldsmith@labaton.com
rvandermeulen@labaton.com
mperez@labaton.com
BRISTOL-MYERS: Still a Defendant in Average Wholesale Price Suits
-----------------------------------------------------------------
Bristol-Myers Squibb Company said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 24, 2014,
for the quarterly period ended September 30, 2014, that the
Company, together with a number of other pharmaceutical
manufacturers, has been a defendant in a number of private class
actions as well as suits brought by the attorneys general of
various states. In these actions, plaintiffs allege that
defendants caused the Average Wholesale Prices (AWPs) of their
products to be inflated, thereby injuring government programs,
entities and persons who reimbursed prescription drugs based on
AWPs. The Company remains a defendant in two state attorneys
general suits pending in state courts in Pennsylvania and
Wisconsin. Beginning in August 2010, the Company was the defendant
in a trial in the Commonwealth Court of Pennsylvania (Commonwealth
Court), brought by the Commonwealth of Pennsylvania. In September
2010, the jury issued a verdict for the Company, finding that the
Company was not liable for fraudulent or negligent
misrepresentation; however, the Commonwealth Court judge issued a
decision on a Pennsylvania consumer protection claim that did not
go to the jury, finding the Company liable for $28 million and
enjoining the Company from contributing to the provision of
inflated AWPs. The Company appealed the decision to the
Pennsylvania Supreme Court and oral argument took place in May
2013. In June 2014, the Pennsylvania Supreme Court vacated the
Commonwealth judge's decision and remanded the matter back to the
Commonwealth Court.
BRISTOL-MYERS: 6,300+ Injury Claims Filed Over Plavix Drug
----------------------------------------------------------
Bristol-Myers Squibb Company said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 24, 2014,
for the quarterly period ended September 30, 2014, that the
Company and certain affiliates of Sanofi are defendants in a
number of individual lawsuits in various state and federal courts
claiming personal injury damage allegedly sustained after using
Plavix*. Currently, over 6,300 claims involving injury plaintiffs
as well as claims by spouses and/or other beneficiaries, are filed
in state and federal courts in various states including
California, Illinois, New Jersey, Delaware and New York. In
February 2013, the Judicial Panel on Multidistrict Litigation
granted the Company and Sanofi's motion to establish a
multidistrict litigation to coordinate Federal pretrial
proceedings in Plavix* product liability and related cases in New
Jersey Federal Court. It is not possible at this time to
reasonably assess the outcome of these lawsuits or the potential
impact on the Company.
Bristol-Myers Squibb Company is a global biopharmaceutical
company.
BRISTOL-MYERS: Still a Defendant in Injury Suits Over Reglan Drug
-----------------------------------------------------------------
Bristol-Myers Squibb Company said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 24, 2014,
for the quarterly period ended September 30, 2014, that the
Company is one of a number of defendants in numerous lawsuits, on
behalf of approximately 3,000 plaintiffs, including injury
plaintiffs claiming personal injury allegedly sustained after
using Reglan* or another brand of the generic drug metoclopramide,
a product indicated for gastroesophageal reflux and certain other
gastrointestinal disorders, as well as claims by spouses and/or
other beneficiaries. The Company, through its generic subsidiary,
Apothecon, Inc., distributed metoclopramide tablets manufactured
by another party between 1996 and 2000. It is not possible at this
time to reasonably assess the outcome of these lawsuits. The
resolution of these pending lawsuits, however, is not expected to
have a material impact on the Company.
Bristol-Myers Squibb Company is a global biopharmaceutical
company.
BRISTOL-MYERS: 400+ Injury Suits Still Pending Over Byetta Drug
---------------------------------------------------------------
Bristol-Myers Squibb Company said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 24, 2014,
for the quarterly period ended September 30, 2014, that Amylin, a
former subsidiary of the Company, and Lilly are co-defendants in
product liability litigation related to Byetta*. To date, there
are over 400 separate lawsuits pending on behalf of over 1,900
plaintiffs, which include injury plaintiffs as well as claims by
spouses and/or other beneficiaries, in various courts in the U.S.
The Company has agreed in principle to resolve over 510 of these
claims. The majority of these cases have been brought by
individuals who allege personal injury sustained after using
Byetta*, primarily pancreatic cancer and pancreatitis, and, in
some cases, claiming alleged wrongful death. The majority of cases
are pending in Federal Court in San Diego in a recently
established multidistrict litigation, with the next largest
contingent of cases pending in a coordinated proceeding in
California Superior Court in Los Angeles. Amylin has product
liability insurance covering a substantial number of claims
involving Byetta* and any additional liability to Amylin with
respect to Byetta* is expected to be shared between the Company
and AstraZeneca. It is not possible to reasonably predict the
outcome of any lawsuit, claim or proceeding or the potential
impact on the Company.
Bristol-Myers Squibb Company is a global biopharmaceutical
company.
CHATTEM INC: Fights Motion to Certify Class in Mouthwash Suit
-------------------------------------------------------------
Sindhu Sundar and Carolina Bolado, writing for Law360, report that
Chattem Inc. urged a Florida federal judge on Oct. 16 not to
certify a proposed class of consumers accusing the toiletry and
dietary supplement maker of making misleading claims that its ACT
mouthwash rebuilds tooth enamel, arguing that the plaintiff has
shown no injury.
Chattem fought plaintiff Lauren Foster's motion to certify a class
in the suit, disputing her claim that she paid a premium for the
ACT Restoring Mouthwash, and arguing that she neither knew the
price of the product when she purchased it nor compared it to the
price of other similar products.
Chattem also argued that its product's claim to "rebuild" tooth
enamel is accurate, calling it a "simple way" to describe the
complex process by which the mouthwash helps to fix weaknesses in
the enamel, according to its filing.
"Plaintiff takes an unreasonably narrow view of the term 'rebuilds
tooth enamel,' claiming to believe that the use of this phrase
means that the ACT Restoring 'rebuilds the tooth to its original
structure,'" Chattem said in its filing. "In other words, she
claims to have believed that after using ACT Restoring, she would
have more tooth enamel, that the product would replace it. Of
course, the claim at issue is that ACT Restoring 'rebuilds'
enamel, not replaces it."
Ms. Foster is seeking to certify a class of consumers in Florida
who have purchased the mouthwash since 2010, according to court
documents. Chattem argued the proposed class includes consumers
who bought the product before and after the disputed marketing
claim was on the label.
Ms. Foster's suit makes allegations under the Florida deceptive
and unfair trade practices act, according to court documents.
In July, U.S. District Judge Roy Dalton dismissed Ms. Foster's
breach of implied warranty claims, ruling that they could not
survive because Foster had no privity, or contractual relationship
or legal link, to Chattem, according to his order. The ruling
partly granted Chattem's motion to dismiss, while leaving the rest
of the claims intact.
Products from the ACT line of mouthwashes have previously been
targeted by consumers over its plaque-fighting claims, according
to court documents. In a 2011 suit in California, plaintiffs said
they had paid a premium of 25 percent or more for ACT Total Care
Fluoride Mouthwash after Chattem boasted the mouthwash provided
comprehensive oral health benefits and would fight both cavities
and unsightly plaque.
The plaintiff in the current suit is represented by Joshua H.
Eggnatz of the The Eggnatz Law Firm PA.
Chattem is represented by Amanda E. Reagan, Frederick H.L. McClure
-- fredrick.mcclure@dlapiper.com -- Christopher Young --
christopher.young@dlapiper.com -- of DLA Piper LLP.
The case is Foster v. Chattem Inc., case number 6:14-cv-00346,
U.S. District Court for the Middle District of Florida.
COLGATE-PALMOLIVE: Retirement Income Plan Settled Class Action
--------------------------------------------------------------
Colgate-Palmolive Company said in its Form 10-Q Report filed with
the Securities and Exchange Commission on October 24, 2014, for
the quarterly period ended September 30, 2014, that in July 2014,
the Colgate-Palmolive Company Employees' Retirement Income Plan
(the "Plan") settled a putative class action alleging improper
calculation of lump sum distributions and failure to satisfy
minimum accrual requirements under the Plan. Under the settlement
agreement, the Plan agreed to pay approximately $40 million after
application of certain offsets to resolve the litigation.
COMCAST CORP: Counsel Wants Boston Cluster Cases Transferred
------------------------------------------------------------
Comcast Corporation and NBCUniversal Media LLC said in their Form
10-Q Report filed with the Securities and Exchange Commission on
October 23, 2014, for the quarterly period ended September 30,
2014, that they are defendants in two purported class actions
originally filed in December 2003 in the United States District
Courts for the District of Massachusetts and the Eastern District
of Pennsylvania. The potential class in the Massachusetts case,
which has been transferred to the Eastern District of
Pennsylvania, is the Companies' customer base in the "Boston
Cluster" area, and the potential class in the Pennsylvania case is
the customer base in the "Philadelphia and Chicago Clusters," as
those terms are defined in the complaints. In each case, the
plaintiffs allege that certain customer exchange transactions with
other cable providers resulted in unlawful horizontal market
restraints in those areas and seek damages under antitrust
statutes, including treble damages.
Classes of Chicago Cluster and Philadelphia Cluster customers were
certified in October 2007 and January 2010, respectively.
The Company said, "We appealed the class certification in the
Philadelphia Cluster case to the Third Circuit Court of Appeals,
which affirmed the class certification in August 2011. In June
2012, the U.S. Supreme Court granted our petition to review the
Third Circuit Court of Appeals' ruling and in March 2013, the
Supreme Court ruled that the class had been improperly certified
and reversed the judgment of the Third Circuit. The matter has
been returned to the District Court for action consistent with the
Supreme Court's opinion. In August 2013, the plaintiffs in the
Philadelphia Cluster case moved to certify a new, smaller class,
which we opposed in January 2014. The parties have been discussing
possible resolution of the Philadelphia Cluster case.
"Accordingly, in February 2014, the plaintiff filed an unopposed
motion to stay the case, which the District Court granted. In
April 2014, the District Court granted our unopposed motion to de-
certify the Chicago Cluster class and the plaintiffs' unopposed
motion to amend the Pennsylvania case so as to dismiss claims
relating to the Chicago Cluster. In April 2014, lead counsel for
the Boston Cluster cases withdrew, and in June 2014, new counsel
requested the Boston Cluster cases be transferred to the federal
court in Boston, which we have opposed."
COMCAST CORP: Comprehensive Settlement for 23 Cases Withdrawn
-------------------------------------------------------------
Comcast Corporation and NBCUniversal Media LLC said in their Form
10-Q Report filed with the Securities and Exchange Commission on
October 23, 2014, for the quarterly period ended September 30,
2014, that they are the defendant in 22 purported class actions
filed in federal district courts throughout the country. All of
these actions have been consolidated by the Judicial Panel on
Multidistrict Litigation in the United States District Court for
the Eastern District of Pennsylvania for pre-trial proceedings.
Comcast said, "In a consolidated complaint filed in November 2009
on behalf of all plaintiffs in the multidistrict litigation, the
plaintiffs allege that we improperly "tie" the rental of set-top
boxes to the provision of premium cable services in violation of
Section 1 of the Sherman Antitrust Act, various state antitrust
laws and unfair/deceptive trade practices acts in California,
Illinois and Alabama. The plaintiffs also allege a claim for
unjust enrichment and seek relief on behalf of a nationwide class
of our premium cable customers and on behalf of subclasses
consisting of premium cable customers from California, Alabama,
Illinois, Pennsylvania and Washington."
"In January 2010, we moved to compel arbitration of the
plaintiffs' claims for unjust enrichment and violations of the
unfair/deceptive trade practices acts of Illinois and Alabama. In
September 2010, the plaintiffs filed an amended complaint alleging
violations of additional state antitrust laws and unfair/deceptive
trade practices acts on behalf of new subclasses in Connecticut,
Florida, Minnesota, Missouri, New Jersey, New Mexico and West
Virginia. In the amended complaint, plaintiffs omitted their
unjust enrichment claim, as well as their state law claims on
behalf of the Alabama, Illinois and Pennsylvania subclasses.
"In June 2011, the plaintiffs filed another amended complaint
alleging only violations of Section 1 of the Sherman Antitrust
Act, antitrust law in Washington and unfair/deceptive trade
practices acts in California and Washington. The plaintiffs seek
relief on behalf of a nationwide class of our premium cable
customers and on behalf of subclasses consisting of premium cable
customers from California and Washington.
"In July 2011, we moved to compel arbitration of most of the
plaintiffs' claims and to stay the remaining claims pending
arbitration. The West Virginia Attorney General also filed a
complaint in West Virginia state court in July 2009 alleging that
we improperly "tie" the rental of set-top boxes to the provision
of digital cable services in violation of the West Virginia
Antitrust Act and the West Virginia Consumer Credit and Protection
Act. The Attorney General also alleges a claim for unjust
enrichment/restitution.
"We removed the case to the United States District Court for West
Virginia, and it was subsequently transferred to the United States
District Court for the Eastern District of Pennsylvania and
consolidated with the multidistrict litigation.
"Although a comprehensive settlement agreement for all 23 cases
that had been submitted to the District Court for preliminary
approval in June 2013 was withdrawn in October 2014, we do not
expect these cases to have a material effect on our results of
operations, cash flows or financial position."
DAKOTA GROWERS: Obtains Final OK of $5MM False Ad Suit Settlement
-----------------------------------------------------------------
District Judge Joel A. Pisano granted final approval of a
settlement in JOSEPH MIRAKAY, LOUIS MESSINA, MICHAEL ELEFTERAKIS &
JOHN GEMBINSKI, on behalf of themselves and others similarly
situated, Plaintiffs, v. DAKOTA GROWERS PASTA COMPANY, INC.,
GLENCORE XSTRATA, and VITERRA, INC., Defendants, CIVIL ACTION NO.
13-CV-4429 (JAP), (D. N.J.).
The Plaintiffs alleged that Dakota Growers, et al. deceptively
markets, advertises, and sells Dreamfields pasta product as a
healthy alternative to traditional pasta, that it has a lower
glycemic index than traditional pasta, and that it contains only
five grams of digestible carbohydrates.
Under the terms of the settlement, the parties agreed that
Defendant would pay $5,000,000, inclusive of notice and
administration costs, for distribution to class members who submit
a valid claim form. In addition to the monetary aspects of the
settlement, Defendant also agreed to injunctive provisions which
remove the advertising at issue. The Defendant further agreed to
pay the proposed class representatives, Jesse Weiss from the
Minnesota action, Joseph Mirakay, Louis Messina, Michael
Elefterakis and John Gembinski an aggregate incentive award of
$20,000 collectively for their efforts in this litigation and the
risks they assumed.
The Court also approved plaintiffs' motion for attorneys' fees of
$2,900,000 and reimbursement of $43,046.70 in litigation expenses.
The Objectors' -- Nanette Forte-Gerst, Chrissie Greatrex, Emily
Greatrex, George Greatrex, William Polouze, and Keith Rothman --
motion for leave to file a sur-reply brief was denied as moot.
A copy of the Court's October 20, 2014 opinion is available at
http://is.gd/0TO3Bpfrom Leagle.com.
DAKOTA GROWERS PASTA COMPANY, INC., Defendant, represented by
LORNA A. DOTRO -- ldotro@coughlinduffy.com -- COUGHLIN DUFFY LLP.
DELPHI AUTOMOTIVE: Not Named as Defendant in GM Recall Suits
------------------------------------------------------------
Two consolidated amended class action complaints were filed on
October 14, 2014, connection with General Motors' product recall
and Delphi Automotive Plc was not named as a defendant in either
complaint, Delphi said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 24, 2014, for the
quarterly period ended September 30, 2014.
In the first quarter of 2014, General Motors, Delphi's largest
customer, initiated a product recall related to ignition switches.
Delphi has received requests for information from, and is
cooperating with, various government agencies related to this
ignition switch recall. In addition, Delphi has been named as a
co-defendant along with GM (and in certain cases other parties) in
class action and product liability lawsuits related to this
matter.
During the second quarter of 2014, all of the class action cases
were transferred to the United States District Court for the
Southern District of New York (the "District Court") for
coordinated pretrial proceedings. Two consolidated amended class
action complaints were filed in the District Court on October 14,
2014. Delphi was not named as a defendant in either complaint.
Delphi believes the allegations contained in the product liability
cases are without merit, and intends to vigorously defend against
them. Although no assurances can be made as to the ultimate
outcome of these or any other future claims, Delphi does not
believe a loss is probable and, accordingly, no reserve has been
made as of September 30, 2014.
Delphi is a global vehicle components manufacturer and provide
electrical and electronic, powertrain, safety and thermal
technology solutions to the global automotive and commercial
vehicle markets.
DUPONT: Tree-Cutting Begins At Peninsula Park After Settlement
--------------------------------------------------------------
Ramelle Bintz, writing for Green Bay Press Gazette, reports that
more than 100 dead or dying pine trees are being removed from Door
County's Peninsula State Park Golf Course. Peninsula State Park
superintendent Kelli Bruns recently announced the removal of 139
trees that recently started and will continue over the next month.
The golf course will remain open through Nov. 2. At times certain
holes or fairways may be temporarily closed to allow for tree
removal.
The trees are coming down because of a broad leaf herbicide
application in 2011 that affected pine trees on the course. None
of the colorful deciduous trees that frame a beautiful backdrop to
the course were affected, Bruns said. Tree mortality resulted
from an application of the trade name product "Imprelis."
At the time, the herbicide was approved by the U.S. Environmental
Protection Agency for golf course applications. It was later
determined the herbicide was damaging evergreen trees, and the EPA
stopped the sale of the product.
"The data focused on coniferous trees -- not deciduous trees," she
said.
Those affected locally include white pine, Norway pine and white
cedar.
"In its entirety with all of the trees on the golf course, many
are hardwood so the golf course's beautiful fall colors are not
affected," she said. "Those slated to be removed are smaller
pines and they are scattered throughout the course."
The golf course dates back to 1921 and some of larger signature
trees, more than 60 years old, are affected, she said.
The Peninsula Golf Associates manages the state-owned golf course
under contract with the Department of Natural Resources. DNR and
Peninsula Golf Associates staff followed all protocols provided by
DuPont, the company that introduced the product, regarding site
visits and remediation to the golf course.
Through a class-action lawsuit, the DNR reached a settlement with
DuPont that addresses the remediation of the Peninsula State Park
Golf Course. This includes removal of Imprelis-affected dead and
dying trees, a tree care program for trees showing signs of stress
due to chemical application, and funds allocated for the
replacement of all impacted trees.
The Davey tree company of Milwaukee, contracted through DuPont,
started to bring in equipment on Oct. 13, Ms. Bruns said. All of
the trees slated for removal are tied with orange ribbons.
"We may not replace every tree, but remediation will include tree
planting," she said, "and we will look at the best areas to
replant."
The tree replacement will be done over a period of to allow staff
time to replant. Remediation funding included money for new
topsoil, turf, root fertilization and treatment for mites or
borers, and care for trees. It also included funding for another
100 trees included on watch list.
Imprelis is a herbicide also used by private individuals and
landscapers to control dandelions, herbicide and some private
landowners were aware.
"We've been pleased with the response from DuPont here," Ms. Bruns
said. "They've been good to work with, and we brought outside
foresters to advise us. To date we've been happy. Davey is
handling our needs. Moving forward, I feel very comfortable with
the response."
Peninsula Park's concern is for the public's safety as trees are
being removed, she said. They also want to ensure there is tree
diversity when they replant.
"It's an unfortunate product," she said. "But we've taken our
steps and we're moving forward."
EDUCATION MANAGEMENT: Pomerantz Files Securities Class Action
-------------------------------------------------------------
Pomerantz LLP on Oct. 17 disclosed that it has filed a class
action lawsuit against Education Management Corporation and
certain of its officers. The class action, filed in United States
District Court, Western District of Pennsylvania, and docketed
under 14-cv-01287, is on behalf of a class consisting of all
persons or entities who purchased EDMC securities between August
8, 2012 and September 16, 2014, inclusive. This class action
seeks to recover damages against Defendants for alleged violations
of the federal securities laws under the Securities Exchange Act
of 1934.
If you are a shareholder who purchased EDMC securities during the
Class Period, you have until November 18, 2014 to ask the Court to
appoint you as Lead Plaintiff for the class. A copy of the
Complaint can be obtained at www.pomerantzlaw.com
To discuss this action, contact Robert S. Willoughby at
rswilloughby@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll
free, x237. Those who inquire by e-mail are encouraged to include
their mailing address, telephone number, and number of shares
purchased.
Education Management Corporation is a publicly traded, for-profit
education company.
The Complaint alleges that throughout the Class Period, Defendants
made materially false and misleading statements regarding the
Company's business, operational and compliance policies.
Specifically, defendants made false and/or misleading statements
and/or failed to disclose that: (1) EDMC was overstating revenue
by not properly increasing its bad debt reserve upon student
withdrawals; (2) EDMC was overstating goodwill; (3) EDMC
manipulated federal student loan and grant programs in order to
appear to be in compliance with new federal regulations enacted in
June 2011; (4) EDMC's predatory and deceptive recruiting and
enrollment practices violated federal regulations enacted
beginning in June 2011 and (5) as a result of the foregoing,
EDMC's public statements were materially false and misleading at
all relevant times.
On July 30, 2012, Senator Tom Harkin, chairman of the Health,
Education, Labor and Pensions Committee (the "HELP Committee")
completed a two-year investigation of the for-profit college
industry, and issued a report (the, "Harkin Report") filled with
troubling statistics and findings regarding the for profit college
industry, and specifically about EDMC. After the Harkin Report
was published, the Company's shares fell almost 8% or $0.32, to
close at $3.77 on July 30, 2012.
On June 20, 2013, after the close of trading, the Company issued a
press release and filed a Form 8-K with the SEC, announcing the
termination of John M. Mazzoni, the President of The Art
Institutes. On this news, the Company's shares fell over 10% or
$0.71, to close at $6.22 on June 21, 2013. On the next trading
day, the Company's shares fell over 12% or $0.75, to close at
$5.47 on June 24, 2013. The total drop over two trading days was
over 21% or $1.46.
On November 1, 2013, after the close of trading, the Company filed
a Form 8-K with the SEC, announcing the termination of its
Chairman, Todd S. Nelson. On this news, the Company's shares fell
almost 5.5% or $0.80, to close at $13.78 on November 4, 2013.
On January 24, 2014, the Company filed a Form 8-K with the SEC,
announcing that it received inquiries from twelve states regarding
the Company's business practices. On this news, the Company's
shares fell over 10% or $0.97, to close at $8.70 on January 27,
2013.
On September 16, 2014, after the close of trading, the Company
filed a Form 12b-25 with the SEC, notifying the SEC that it would
delay the filing of its Annual Report on Form 10-K for the period
ended June 30, 2014. As a result of this news, shares of EDMC
fell $0.12 or almost 10%, to close at $1.10 on September 17, 2014.
With offices in New York, Chicago, Florida, and San Diego, The
Pomerantz Firm -- http://www.pomerantzlaw.com-- concentrates its
practice in the areas of corporate, securities, and antitrust
class litigation. Founded by the late Abraham L. Pomerantz, known
as the dean of the class action bar, the Pomerantz Firm pioneered
the field of securities class actions. Today, more than 70 years
later, the Pomerantz Firm continues in the tradition he
established, fighting for the rights of the victims of securities
fraud, breaches of fiduciary duty, and corporate misconduct. The
Firm has recovered numerous multimillion-dollar damages awards on
behalf of class members.
ELNA CO: Faces "Sound" Suit Over Tantalum Capacitors-Price Fixing
-----------------------------------------------------------------
Cae Sound, on behalf of itself and all others similarly situated
v. Elna Co., Ltd., et al., Case No. 1:14-cv-01710 (S.D. Ind.,
October 20, 2014), is brought against the Defendant for engaging
in a massive conspiracy to unlawfully fix and artificially raise
the prices of aluminum and tantalum electrolytic capacitors.
Elna Co., Ltd. is a Japanese corporation with its principal place
of business in Yokohama, and is considered one of the world's
leading manufacturers of capacitors.
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 -
Guido Saveri, Esq.
R. Alexander Saveri, Esq.
Lisa Saveri, Esq.
Melissa Shapiro, Esq.
SAVERI & SAVERI, INC.
706 Sansome Street
San Francisco, CA 94111
Telephone: (888) 787-8681
Facsimile: (415) 217-6813
E-mail: guido@saveri.com
rick@saveri.com
lisa@saveri.com
melissa@saveri.com
ENDEAVOUR ENERGY: Home Owners Pay for Bushfire Hazard Reduction
---------------------------------------------------------------
Kirsty Needham, writing for The Sydney Morning Herald, reports
that electricity companies will be able to access private property
to remove fire hazards, and bill the home owners, under legal
changes designed to prevent a repeat of the devastating Springwood
and Port Stephens bushfires.
"The fires last year identified that existing measures in place to
minimize the risks of bushfires started by electricity
infrastructure, quite frankly, are not sufficient," Energy
Minister Anthony Roberts said.
A AU$200 million class action against Endeavour Energy involving
400 Blue Mountains residents is before the Supreme Court, amid
allegations the company failed to ensure a dangerous tree on
Linksview Road in Springwood was removed.
Endeavour had served a notice to tenants at the property earlier
in the year to prune the tree, which other residents allege
sparked the bushfire.
The company denies it is responsible, claiming the law does not
impose an obligation on electricity companies to clear trees
interfering with power wires on private land.
Proposed changes to the law introduced to the NSW Parliament will
give a clear time limit of 60 days for a hazard to be removed from
privately owned power lines.
Energy companies will issue a notice to tenants or property owners
detailing the exact work to be carried out. Property owners will
have 30 days to respond, and can choose to organize for the work
to be done by a contractor, or have the electricity supply
disconnected.
If the property owner fails to respond, the electricity company
can enter the property and undertake work to make the electricity
assets safe.
The government believed electricity companies should not bear the
cost of bushfire hazard reduction work on private electricity
assets, because the expense would be passed on to consumers across
the state, Mr. Roberts said.
"Importantly, the amendments require network operators to have in
place a financial hardship policy for people who have difficulty
paying the cost of the work," he said.
"This means the safety of the landholder, the community and
property is not compromised by financial considerations."
The notice will include the contact details for the Electricity
and Water Ombudsman, to handle complaints. The property owners,
not the tenants, will be liable for the charges.
Only bushfire prone areas will be covered by the new law, which
will also exempt home owners who have been issued with a notice
from complying with land clearing and environmental planning laws
to do the work.
This would allow the 60-day time limit to be met, Mr. Roberts
said.
"When removing threats of bushfire, time is of the essence," he
said.
The ombudsman, Local Government NSW, and NSW Farmers had been
consulted on the bill.
The class action against Endeavour Energy will return to the
Supreme Court for a directions hearing on October 31. The court
case alleges the company had a duty of care to make sure the
network was safe, and failed to remove or trim the tree on
Linksview Road at its own expense, which was allowed in an
emergency under the present law.
The case alleges the fire was caused by a large gum tree falling
onto a service cable on October 17 last year.
EZCORP INC: Bernstein Litowitz Files Securities Class Action
------------------------------------------------------------
Bernstein Litowitz Berger & Grossmann LLP on Oct. 17 disclosed
that it has filed a securities class action lawsuit on behalf of
the Automotive Machinists Pension Plan against EZCORP, Inc., as
well as certain of the Company's officers, and its controlling
shareholder, Phillip Ean Cohen and MS Pawn Limited Partnership.
The action asserts claims under the Securities Exchange Act of
1934 on behalf of investors in EZCORP common stock during the
period of April 19, 2012 through October 6, 2014, inclusive. A
copy of the Complaint is available on BLB&G's website at
www.blbglaw.com
The Complaint expands the class period that was asserted in a
related action against EZCORP, captioned Close v. EZCORP, Inc.,
No. 14-cv-6834 (S.D.N.Y.), which is the first-filed securities
class action in this matter and is presently pending before the
Honorable Andrew L. Carter, Jr. Pursuant to the notice published
on August 22, 2014 in connection with the filing of the Close
action, as required by the Private Securities Litigation Reform
Act of 1995, investors wishing to serve as lead plaintiff are
required to file a motion for appointment as lead plaintiff by no
later than October 21, 2014. The filing of the Complaint by BLB&G
does not alter that deadline.
The Complaint alleges that beginning on April 19, 2012 and
throughout the Class Period, EZCORP and certain of its senior
executives violated provisions of the Exchange Act by
disseminating false and misleading press releases, financial
statements, filings with the Securities and Exchange Commission
and statements during investor conference calls. As alleged in
the Complaint, throughout the Class Period, EZCORP and certain of
its senior executives misrepresented significant facts concerning
EZCORP's business and operations, including that the Company and
its Cash Genie business complied with all relevant regulations
governing its businesses. The Complaint also alleges that the
Defendants misrepresented the nature of EZCORP's consulting
relationship with an entity owned by Cohen, the Company's
controlling shareholder.
In a series of corrective disclosures, EZCORP revealed drastic
changes to the Company's senior leadership, a significant decline
in growth, and admitted that its Cash Genie business appeared to
have committed "serious" violations of consumer protection laws.
On the last day of the Class Period, the Company revealed a
reorganization of its business, explaining that it was exiting its
online businesses in both the United Kingdom (its "Cash Genie"
operations) and the United States, that these changes would result
in approximately $110 million in goodwill impairments and other
charges, and that it was lowering its guidance. As a result of
these disclosures, the price of EZCORP stock declined
dramatically, damaging the members of the class.
The action asserts claims under Sections 10(b) and 20(a) of the
Exchange Act against EZCORP and the Officer Defendants, and
asserts claims under Section 20(a) of the Exchange Act against the
Officer Defendants, Cohen and MS Pawn as control persons of
EZCORP.
The deadline for filing a motion for appointment as lead plaintiff
is October 21, 2014. Any member of the proposed Class may move
the Court to serve as lead plaintiff through counsel of their
choice, or may choose to do nothing and remain a member of the
proposed Class. If you wish to discuss this action or have any
questions concerning this notice or your rights or interests,
please contact Avi Josefson of BLB&G at 212-554-1493, or via e-
mail at avi@blbglaw.com
Founded in 1983, BLB&G -- http://www.blbglaw.com-- specializes in
securities fraud, corporate governance, shareholders' rights,
employment discrimination, and civil rights litigation, among
other practice areas, BLB&G prosecutes class and private actions
on behalf of institutional and individual clients worldwide.
Unique among its peers, BLB&G has obtained several of the largest
and most significant securities recoveries in history, recovering
billions of dollars on behalf of defrauded investors.
FLOUNDERDAWG LLC: Faces "Clay" Suit Over Failure to Pay Overtime
----------------------------------------------------------------
Ismael Clay, on behalf of himself and all others similarly
situated v. Flounderdawg, LLC, Case No. 5:14-cv-00923 (W.D. Tex.,
October 20, 2014), is brought against the Defendant for failure to
pay overtime wages for work in excess of 40 hours per week.
Flounderdawg, LLC provides catering services to oil and gas
producers and other businesses and individuals in south and
central Texas.
The Plaintiff is represented by:
Charles Anthony Riley, Esq.
RILEY & RILEY, ATTORNEYS AT LAW
320 Lexington Avenue
San Antonio, TX 78215-1913
Telephone: (210) 225-7236
Facsimile: (210) 227-7907
E-mail: charlesriley@rileylawfirm.com
GLAXOSMITHKLINE LLC: Dismissal of Express Warranty Claim Upheld
---------------------------------------------------------------
Richard V. D'Apuzzo, who suffers from Type 2 diabetes mellitus,
filed suit alleging GlaxoSmithKline LLC (GSK) caused him economic
harm by misrepresenting the safety and efficacy of its diabetes
drug Avandia. D'Apuzzo filed his initial class action complaint
on July 13, 2007, and his first amended complaint on October 24,
2007, both in the U.S. District Court for the District of New
Jersey. The case was then transferred to the U.S. District Court
for the Eastern District of Pennsylvania as part of MDL No. 1871
pursuant to an order from the Judicial Panel on Multidistrict
Litigation. On June 6, 2010, D'Apuzzo filed his second amended
complaint, alleging violations of the New Jersey Consumer Fraud
Act and unjust enrichment. On September 7, 2011, on GSK's motion,
the District Court dismissed D'Apuzzo's second amended complaint
without prejudice. On October 25, 2011, D'Apuzzo filed his third
amended complaint, alleging violations of the New Jersey Consumer
Fraud Act, breach of express warranty, breach of implied warranty,
fraud, negligent misrepresentation, negligence, and unjust
enrichment. GSK moved to dismiss the third amended complaint
under Rule 12(b)(6).
On October 15, 2013, the District Court granted GSK's Rule
12(b)(6) motion to dismiss the entire complaint with prejudice,
concluding it would be inequitable to permit D'Apuzzo a fourth
opportunity to state a claim. The District Court dismissed all but
one of D'Apuzzo's claims -- for violations of the New Jersey
Consumer Fraud Act, breach of implied warranty, fraud, negligent
misrepresentation, negligence, and unjust enrichment -- as barred
by the New Jersey Products Liability Act (PLA), N.J. Stat. Ann.
Sections 2A:58C-1 et seq., which is the exclusive basis for any
New Jersey products liability action, except for express warranty
and environmental tort actions. D'Apuzzo does not appeal the
dismissal of those claims.
The District Court also dismissed D'Apuzzo's express warranty
claim -- which is explicitly exempt from the ambit of the PLA --
for failure to allege the "exact text of the warranties, or the
precise time periods these warranties were in effect." D'Apuzzo
filed this timely appeal, in which the only ruling he challenges
is the dismissal of his express warranty claim.
The United States Court of Appeals, Third Circuit, on October 21,
2014, held that because D'Apuzzo has not stated a claim for breach
of express warranty under New Jersey law, it will affirm the
District Court's dismissal of D'Apuzzo's express warranty claim
under Federal Rule of Civil Procedure 12(b)(6). A copy of the
ruling is available at http://is.gd/W8OUYafrom Leagle.com.
The case is IN RE: AVANDIA MARKETING SALES PRACTICES & PRODUCTS
LIABILITY LITIGATION RICHARD V. D'APUZZO, on behalf of himself and
all others similarly situated, Appellant, NO. 13-4323.
Counsel for Appellee is:
Anthony C. Vale, Esq.
Gabriel J. Vidoni, Esq.
PEPPER HAMILTON
18th & Arch Streets
3000 Two Logan Square
Philadelphia, PA 19103
E-mail: valea@pepperlaw.com
GREENWAY HEALTH: TCPA Suit Class Cert. Denied Without Prejudice
---------------------------------------------------------------
District Judge James S. Moody, Jr. denied without prejudice,
a motion for class certification as premature in the case
captioned PHYSICIANS HEALTHSOURCE, INC., Plaintiff, v. GREENWAY
HEALTH, LLC and JOHN DOE 1-10, Defendants, CASE NO. 8:14-CV-2593-
T-30AEP, (M.D. Fla.). The Plaintiff's request for status
conference was also denied as moot.
Physician Health Source, Inc. commenced this putative class action
on October 14, 2014, alleging violation of the Telephone Consumer
Protection Act of 1991, as amended by the Junk Fax Prevention Act
of 2005, 47 USC Section 227 based on the Defendants' unsolicited
facsimiles.
A copy of Judge Moody's October 20, 2014 order is available at
http://is.gd/TxjuyRfrom Leagle.com.
Physicians Healthsource, Inc., an Ohio corporation, individually
and as the representative of a class of similarly-situated
persons, Plaintiff, represented by Ryan M. Kelly --
RKelly@andersonwanca.com -- Anderson & Wanca.
GT ADVANCED: Gainey McKenna Files Securities Class Action
---------------------------------------------------------
Gainey McKenna & Egleston on Oct. 17 disclosed that is has filed a
class action lawsuit on behalf of purchasers of all securities of
GT Advanced Technologies Inc. The lawsuit has been filed in the
United States District Court for the District of New Hampshire, on
behalf of all persons who purchased or otherwise acquired GT
securities during the period between November 5, 2013 through
October 6, 2014, inclusive. The class action is also brought on
behalf of all persons who purchased or otherwise acquired the
Company's public offering of 3.00% Convertible Senior Notes due
2020 and GT's public offering of 9,942,196 shares of its common
stock both conducted on or around December 4, 2013 as well as all
options, puts and other GTAT securities. This class action seeks
to recover damages against Defendants for alleged violations of
the federal securities laws under the Securities Exchange Act of
1934 and the Securities Act of 1933 on behalf of investors that
purchased securities pursuant or traceable to the Offerings.
Gainey McKenna & Egleston's Complaint alleges that during the
Class Period, Defendants misrepresented and/or concealed the
Company's (i) cash position; (ii) expected cash position and
revenues; (iii) ability to meet the milestones under a critical
agreement with Apple for the production of sapphire material; and
(iv) the progress that the Company was making developing the
facility that would produce the sapphire material.
On October 6, 2014, the Company 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 the Company 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, you must move the Court no
later than December 8, 2014. A lead plaintiff is a representative
party acting on behalf of other class members in directing the
litigation. If you wish to join the litigation, or to discuss
your rights or interests regarding this class action, please
contact Thomas J. McKenna, Esq. or Gregory M. Egleston, Esq. of
Gainey McKenna & Egleston at (212) 983-1300, or via e-mail at
tjmckenna@gme-law.com or gegleston@gme-law.com
GT ADVANCED: Faces Deerhaven Capital Suit Over False Fin'l Report
-----------------------------------------------------------------
Deerhaven Capital LLC, Individually and on Behalf of All Others
Similarly Situated v. Thomas Gutierrez, Kanwardev Raja Singh Bal,
and Richard J. Gaynor, Case No. 1:14-cv-00463 (D.N.H., October 20,
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
E-mail: mark@malloryandfriedman.com
- and -
Robert V. Prongay, Esq.
GLANCY BINKOW & GOLDBERG LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
- and -
Brian P. Murray, Esq.
GLANCY BINKOW & GOLDBERG LLP
122 E 42nd Street, Suite 2920
New York, NY 10168
Telephone: (212) 682-5340
Facsimile: (212) 884-0988
GYRODATA INC: "Wall" Suit Seeks to Recover Unpaid Wages & Damages
-----------------------------------------------------------------
Christian Wall, individually and on behalf of all others similarly
situated v. Gyrodata, Inc., Case No. 2:14-cv-00425 (S.D. Tex.,
October 20, 2014), seeks to recover the unpaid wages and other
damages pursuant to the Fair Labor Standards Act.
Gyrodata, Inc. provides directional well survey services to the
oil and gas industry.
The Plaintiff is represented by:
Michael A. Josephson, Esq.
Andrew Dunlap, Esq.
Lindsay R. Itkin, Esq.
FIBICH, LEEBRON, COPELAND, BRIGGS & JOSEPHSON
1150 Bissonnet St.
Houston, TX 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, P.L.L.C.
8 Greenway Plaza, Suite 1500
Houston, TX 77046
Telephone: (713) 877-8788
Facsimile: (713) 877-8065
E-mail: rburch@brucknerburch.com
HERTZ CORP: Judge Grants Attorneys' Fees in "Sobel" Class Suit
--------------------------------------------------------------
District Judge Larry R. Hicks entered orders granting attorneys'
fees in the class action commenced by Janet Sobel, et al., against
The Hertz Corporation in an Oct. 9, 2014 Order available at
http://is.gd/35pf94from Leagle.com.
The class action was filed on behalf of persons who rented cars
from Hertz at the Reno and Las Vegas, Nevada airports, seeking
restitution of any airport concession recovery fees they paid to
Hertz between Oct. 13, 2003 and Sept. 20, 2009. Since then, the
District Court has held that class members are entitled to recover
airport concession fees they paid. In June 2014, Plaintiffs and
Objectors filed Motions for Attorney Fees.
In his ruling, Judge Hicks ordered that:
1. Plaintiffs' Motion for Attorney Fees is GRANTED in part and
DENIED in part. Plaintiffs shall be awarded attorney's fees
in the amount of $3,135,269 to be paid by Hertz under the
fee-shifting statute, and $3,135,269 to be paid from the
common fund under the common fund doctrine. Plaintiffs shall
also be awarded $432,211 in expenses to be assessed against
Hertz. Finally, named Plaintiffs Sobel and Dugan shall each
receive incentive awards of $10,000 to be assessed against
the common fund. The Court grants leave to Plaintiffs to file
additional fee and/or expense petitions if further appeals or
challenges are undertaken by Hertz.
2. William Andrews and Walter Weber's Motion for Attorney Fees
is GRANTED in part and DENIED. Andrews and Weber shall be
awarded attorney's fees in the amount of $88,901.95, expenses
in the amount of $1,098.05, and incentive awards in the
amount of $1,500 for both Andrews and Weber, all to be paid
from the common fund.
3. Scott Schutzman's Motion for Attorney's Fees is GRANTED in
part and DENIED. Schutzman shall be awarded attorney's fees
in the amount of $103,333.75, expenses in the amount of
$4,221.68, and an incentive award of $1,500.00, all to be
paid from the common fund.
The case is JANET SOBEL and DANIEL DUGAN, Ph.D., individually and
on behalf of all others similarly situated, Plaintiffs, v. THE
HERTZ CORPORATION, a Delaware corporation, Defendant, Case NO.
3:06-CV-00545-LRH-RAM (D. Nev.).
Weber Walter, Objector, is represented by David A Hornbeck, Esq.
-- davidhornbecklaw@msn.com -- of the Law Offices of David A.
Hornbeck and Daniel Greenberg of Greenberg Legal Services.
IMPERIAL OIL: Price Fixing Plaintiffs Case Use Wiretap Evidence
---------------------------------------------------------------
Drew Hasselback, writing for Financial Post, reports that the
Supreme Court of Canada says plaintiffs in a Quebec price fixing
class action should be allowed to use wiretap evidence gathered in
a Competition Bureau criminal investigation on gasoline price
fixing.
"When all is said and done . . . there is no factual or legal
impediment to disclosure of the documents requested by the
respondents," wrote justices Louis LeBel and Richard Wagner in
joint reasons.
The so-called "Octane" price fixing investigation intercepted and
recorded more than 220,000 private communications and resulted
against charges against 54 persons. Some of those criminal actions
are still before the courts.
Six justices were in favor of disclosing the material to civil
litigants. They also upheld controls the trial court put in place
to protect privacy rights and the rights of those accused still
facing criminal charges. Justices LeBel and Wagner wrote joint
reasons, with Justices Marshall Rothstein, Thomas Cromwell and
Michael Moldaver concurring. Chief Justice Beverley McLachlin
wrote her own concurring reasons. Justice Rosalie Silberman
Abella dissented.
Justices LeBel and Wagner wrote that trial judges have control
over the evidence used in civil proceedings. They must balance
several interests. A judge must limit unnecessary invasions of
privacy, but also ensure parties get access to relevant documents.
The policy goals are to ensure proceedings remain fair, the search
for truth is not obstructed and the proceedings are not
unjustifiably delayed, they said.
In the Quebec case, the court held that a provision of the
province's civil code gives a trial judge the power to decide
whether civil litigants can use documents obtained in a criminal
investigation. This analysis can look at the impact the
disclosure of the evidence might have on the rights of third
parties. "A judge may not refuse to order disclosure solely
because it is argued that fundamental rights were violated in
obtaining the requested evidence," Justices LeBel and Wagner
wrote.
The evidence in the Quebec case was collected as part of a
Competition Act investigation. In her concurring reasons, Chief
Justice McLachlin said she would not approve the disclosure of
wiretap information collected in Criminal Code investigations.
"Assuming that my colleagues' reasons can be read as
characterizing s. 193(2) (a) of the Criminal Code, R.S.C. 1985, c.
C-46, as empowering Canadian authorities to disclose intercepted
private communications for use in civil proceedings (an assumption
that I do not share), I must respectfully disagree."
Justice Abella dissented. She wrote that electronic surveillance
should have no role in civil proceedings unless it has already
been made public in a criminal trial or unless the targets of the
wiretaps have waived their privacy rights. Neither of those
exceptions makes an appearance in the Quebec case, she wrote.
"It seems to me to be ironic to say that communications sedulously
protected from disclosure in the criminal justice system can
somehow shed those protections by crossing over to the civil
justice side of the street," Justice Abella wrote.
The case was argued before the Supreme Court on April 24.
Bernier Beaudry disclosed that in a historic class action ruling
rendered on Oct. 17, the Supreme Court of Canada allowed
plaintiffs Simon Jacques, Marcel Lafontaine and the Automobile
Protection Association (APA) and their expert access to thousands
of recorded telephone conversations stemming from wiretaps
recorded by the Competition Bureau of Canada as part of their
Octane investigation.
APA President George Iny and the plaintiffs' attorneys say they
are very happy with the decision rendered by the Supreme Court,
which will accelerate the proceedings in the price fixing class
action, and favor protection of the many consumers who overpaid
for gasoline due to the activities of the cartel revealed by the
Competition Bureau.
This decision is available on the Supreme Court of Canada's
website -- http://www.scc-csc.gc.ca
This important judgment supports the decision rendered in October
2010 by the Honourable Dominique Belanger, then judge of the
Superior Court of Quebec allowing plaintiffs and their attorneys
to have access to all documentation contained in the disclosure of
evidence communicated to the accused in the criminal proceedings
undertaken by the Director of Criminal and Penal Prosecutions of
Canada.
INFINEON TECHNOLOGIES: DRAM Price-Fixing Class Action Settled
-------------------------------------------------------------
Jill Yates, Esq. of McCarthy Tetrault LLP, in an article for
Lexology, reports that the final settlements were approved on Oct.
15 in a series of settlements that represent the second-largest
recovery in Canadian competition class action history. Pro-sys
Consultants Ltd. v. Infineon Technologies AG et al, 2014 BCSC 1936
alleged a price-fixing conspiracy among international
manufacturers of dynamic random access memory (DRAM), a
semiconductor memory product that provides high speed storage and
retrieval of information found in computers, servers and other
electronic equipment. The class includes purchasers at all levels
of the distribution chain. Analogous proceedings were also
brought in Ontario and Quebec.
The Oct. 15 settlement approval left the total national settlement
amount achieved in the class actions, inclusive of accrued
interest, at $80 million. Class counsel has developed and
implemented an innovative protocol to distribute the net proceeds
of the settlement, based on:
-- public consultation with class members;
-- retaining an economist to address distribution of loss as a
result of overcharge;
-- retaining a former Supreme Court of Canada judge to advice
on process;
-- assigning different members of the class counsel team
responsibility for sub-groups of the class and adopting an
adversarial role to ensure the interests of groups at different
levels of the distribution chain are protected; and
-- a review of the expert evidence and allocation plan approved
in the parallel US proceeding.
The result is a distribution protocol dividing the net proceeds of
the settlement in three parts: half to the end consumers, who
purchased DRAM/computer or electronic equipment for their own use
and not for resale; 30% to electronic manufacturers; and 20% to
other DRAM purchasers. The claims are being administered by a
third party professional administrator.
The court also approved plaintiff's counsel contingency fee of 30%
of the settlement funds, just under $23 million (for docketed time
of just under $8 million), as fair and reasonable in the
circumstances.
Mr. DeRoche said the claims filed so far exceed $150 million.
INGRAM MICRO: Received Additional $6.6 Million From Settlement
--------------------------------------------------------------
Ingram Micro Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 24, 2014, for the
quarterly period ended September 27, 2014, that on July 12, 2013,
the federal district judge overseeing the proceeding issued a
preliminary order approving a plan of distribution to the class
claimants. In July 2013, the Company received a distribution of
$29,500,000, net of all attorney fees and expenses, which was
reflected as a reduction of selling, general and administrative
expenses in the third quarter of 2013. In January 2014, the
federal district judge overseeing the proceeding issued an order
for the final distribution of the settlement fund. Accordingly, in
February 2014, the Company received an additional $6,600,000 from
the remaining escrowed settlement fund, which it recorded as a
reduction of selling, general and administrative expenses in the
first quarter of 2014.
Ingram Micro Inc. and its subsidiaries are primarily engaged in
the distribution of information technology ("IT") products, supply
chain services and mobile device lifecycle services worldwide.
INTERNATIONAL LOGGING: Tex. Suit Seeks to Recover Unpaid OT Wages
-----------------------------------------------------------------
Paul Romanick, individually and on behalf of all others similarly
situated v. International Logging, Inc. and Weatherford
International, LLC, Case No. 4:14-cv-02968 (S.D. Tex., October 17,
2014), seeks to recover the unpaid overtime wages and other
damages pursuant to the Fair Labor Standards Act.
International Logging, Inc. is an oilfield services company
providing surface logging, or mud logging services to operators,
as well as formation evaluation and drilling related services at
well sites.
Weatherford International, LLC is one of the largest oil and
natural gas service companies in the world, providing products and
services for drilling, evaluation, completion, production and
intervention of oil and natural gas wells, along with pipeline
construction and commissioning.
The Plaintiff is represented by:
Michael A. Josephson, Esq.
FIBICH, HAMPTON, LEEBRON, BRIGGS & JOSEPHSON, LLP
1150 Bissonnet St
Houston, TX 77005
Telephone: (713) 751-0025
Facsimile: (713) 751-0030
E-mail: mjosephson@fibichlaw.com
INTUITIVE SURGICAL: Plaintiffs Decline to Seek Review of Decision
-----------------------------------------------------------------
Intuitive Surgical, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on October 23, 2014, for
the quarterly period ended September 30, 2014, that plaintiffs in
a shareholder class action declined to seek any further review of
the Ninth Circuit decision, and the matter is now at an end.
On August 6, 2010, a purported class action lawsuit entitled
Perlmutter v. Intuitive Surgical et al., No. CV10-3451, was filed
against seven of the Company's current and former officers and
directors in the United States District Court for the Northern
District of California. The lawsuit sought unspecified damages on
behalf of a putative class of persons who purchased or otherwise
acquired the Company's common stock between February 1, 2008 and
January 7, 2009. The complaint alleged that the defendants
violated federal securities laws by making allegedly false and
misleading statements and omitting certain material facts in
filings with the Securities and Exchange Commission.
On February 15, 2011, the Police Retirement System of St. Louis
was appointed lead plaintiff in the case pursuant to the Private
Securities Litigation Reform Act of 1995. An amended complaint
was filed on April 15, 2011, making allegations substantially
similar to the allegations described above. On May 23, 2011, a
motion was filed to dismiss the amended complaint. On August 10,
2011, that motion was granted and the action was dismissed; the
plaintiffs were given 30 days to file an amended complaint. On
September 12, 2011, plaintiffs filed their amended complaint. The
allegations contained therein were substantially similar to the
allegations in the prior complaint. The Company filed a motion to
dismiss the amended complaint on October 13, 2011.
A hearing occurred on February 16, 2012, and on May 22, 2012, the
court granted the Company's motion. The complaint was dismissed
with prejudice, and a final judgment was entered in the Company's
favor on June 1, 2012. On June 20, 2012, plaintiffs filed a notice
of appeal with the United States Court of Appeals for the Ninth
Circuit. The appeal was styled Police Retirement System of St.
Louis v. Intuitive Surgical, Inc. et al., No. 12-16430.
Plaintiffs filed their opening brief on September 28, 2012. The
Company filed an answering brief on November 13, 2012, and
plaintiffs filed a reply brief on December 17, 2012.
Oral argument was held on March 14, 2014, and the matter was taken
under submission. On July 16, 2014, the Ninth Circuit published an
opinion affirming the district court's order dismissing the
amended complaint with prejudice. Plaintiffs declined to seek any
further review of the decision, and the matter is now at an end.
Based on currently available information, the Company does not
believe the resolution of this matter will have a material adverse
effect on the Company's business, financial position or future
results of operations.
INTUITIVE SURGICAL: Plaintiffs in "Abrams" Did Not Amend Suit
-------------------------------------------------------------
Intuitive Surgical, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on October 23, 2014, for
the quarterly period ended September 30, 2014, that the Company's
motion to dismiss the amended complaint in the Abrams class action
lawsuit was granted in part and denied in part, and the plaintiffs
have elected not to further amend their complaint. The case will
move forward on the claims that remain.
On April 26, 2013, a purported class action lawsuit entitled
Abrams v. Intuitive Surgical, et al., No. 5-13-cv-1920, was filed
against several of the Company's current and former officers and
directors in the United States District Court for the Northern
District of California. A substantially identical complaint,
entitled Adel v. Intuitive Surgical, et al., No. 5:13-cv-02365,
was filed in the same court against the same defendants on May 24,
2013. The Adel case was voluntarily dismissed without prejudice on
August 20, 2013.
On October 15, 2013, plaintiffs in the Abrams matter filed an
amended complaint. The case has since been re-titled In re
Intuitive Surgical Securities Litigation, No. 5:13-cv-1920. The
plaintiffs seek unspecified damages on behalf of a putative class
of persons who purchased or otherwise acquired the Company's
common stock between February 6, 2012, and July 18, 2013. The
amended complaint alleges that the defendants violated federal
securities laws by making allegedly false and misleading
statements and omitting certain material facts in the Company's
filings with the Securities and Exchange Commission. On November
18, 2013, the Court appointed Employees' Retirement System of the
State of Hawaii as lead plaintiff and appointed lead counsel.
The Company filed a motion to dismiss the amended complaint on
December 16, 2013, which was granted in part and denied in part on
August 21, 2014. The plaintiffs have elected not to further amend
their complaint, and the case will move forward on the claims that
remain. The Company does not believe the resolution of this matter
will have a material adverse effect on the Company's business,
financial position or future results of operations.
INTUITIVE SURGICAL: Faces 93 Suits Over da Vinci Surgical System
----------------------------------------------------------------
Intuitive Surgical, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on October 23, 2014, for
the quarterly period ended September 30, 2014, that the Company is
currently named as a defendant in approximately 93 individual
product liability lawsuits filed in various state and federal
courts by plaintiffs who allege that they or a family member
underwent surgical procedures that utilized the da Vinci Surgical
System and sustained a variety of personal injuries and, in some
cases, death as a result of such surgery. The Company has also
received a large number of product liability claims from
plaintiffs' attorneys that are part of certain tolling agreements.
In addition, the Company has been named as a defendant in a
purported class action filed in Louisiana state court, and removed
to federal court, seeking damages on behalf of all patients who
were allegedly injured by the da Vinci Surgical System at a single
hospital in Louisiana. The Company has also been named as a
defendant in a multi-plaintiff lawsuit filed in Missouri state
court, seeking damages on behalf of 17 patients who had da Vinci
surgeries in 11 different states.
The cases raise a variety of allegations including, to varying
degrees, that plaintiffs' injuries resulted from purported defects
in the da Vinci Surgical System and/or failure on the Company's
part to provide adequate training resources to the healthcare
professionals who performed plaintiffs' surgeries. The cases
further allege that the Company failed to adequately disclose
and/or misrepresented the potential risks and/or benefits of the
da Vinci Surgical System. Plaintiffs also assert a variety of
causes of action, including for example, strict liability based on
purported design defects, negligence, fraud, breach of express and
implied warranties, unjust enrichment, and loss of consortium.
Plaintiffs seek recovery for alleged personal injuries and, in
many cases, punitive damages.
The Company has reached confidential settlements in a small number
of filed cases. With certain exceptions, including the Taylor
case, the remaining filed cases generally are in the early stages
of pretrial activity.
Plaintiffs' attorneys have engaged in well-funded national
advertising efforts seeking patients dissatisfied with da Vinci
surgery. Among the allegations, a substantial number of claims
relate to alleged complications from surgeries performed with
certain versions of Monopolar Curved Scissor ("MCS") instruments
that included an MCS tip cover accessory that was the subject of a
market withdrawal in 2012 and MCS instruments that were the
subject of a recall in 2013. The Company has received a
significant number of claims from plaintiffs' attorneys that it
believes are as a result of these advertising efforts. In an
effort to avoid the expense and distraction of defending multiple
lawsuits, the Company entered into tolling agreements to pause the
applicable statutes of limitations for the claims, and engaged in
confidential mediation efforts. The attorneys for the patients
agreed to collect and supply medical records, operative notes and
other necessary information from these patients to the Company.
Each claim was individually investigated. The collection and
evaluation of the patients' medical information was laborious. For
hundreds of the asserted claims, the Company has never received
medical records.
As of September 30, 2014, approximately 2,600 sets of patient
records have been received and evaluated. To evaluate these
claims, the Company, assisted by independent medical consultants,
reviewed and analyzed the large volumes of medical information
that began to arrive in the fall of 2013. The completion of the
legal and medical evaluation of a significant number of these
claims occurred during the first quarter of 2014 and continued
throughout the second and third quarters of 2014.
During the nine months ended September 30, 2014, the Company
recorded pre-tax charges of $77.0 million, of which $67.4 million
was recorded in the first quarter of 2014 and $9.6 million in the
second quarter of 2014, to reflect the estimated cost of settling
a number of the product liability claims covered by the tolling
agreements. After an extended confidential mediation process with
legal counsel for many of the claimants covered by the tolling
agreements, the Company determined during the first quarter of
2014 that, while it denies any and all liability, in light of the
costs and risks of litigation, settlement of certain claims may be
appropriate. The Company's estimate of the anticipated cost of
resolving these claims is based on negotiations with attorneys for
patients who have participated in the mediation process.
To date, approximately 4,700 claims have been added to the tolling
agreements and/or submitted into the mediation program. Of those,
however, over 2,800 claims have voluntarily been removed from the
tolling agreement and/or mediation program and plaintiffs'
counsels have indicated to the Company that they no longer intend
to pursue these claims. Nonetheless, the claimants that have been
removed from the tolling agreement remain free to pursue lawsuits
against the Company and it is also possible that more claims will
be made by additional individuals who have undergone da Vinci
surgery and allege that they suffered injuries. It is further
possible that the claimants who participate in the mediations, as
well as those claimants who have not participated in negotiations,
will choose to pursue greater amounts in a court of law.
Consequently, the final outcome of these claims is dependent on
many variables that are difficult to predict and the ultimate cost
associated with these product liability claims may be materially
different than the amount of the current estimate and accruals and
could have a material adverse effect on the Company's business,
financial position, and future results of operations. Although
there is a reasonable possibility that a loss in excess of the
amount recognized exists, the Company is unable to estimate the
possible loss or range of loss in excess of the amount recognized
at this time. As of September 30, 2014, a total of $56.7 million
of the charges recorded during 2014 was included in other accrued
liabilities in the accompanying Condensed Consolidated Balance
Sheets related to the tolled product liability claims.
INTUITIVE SURGICAL: Plaintiff Appeals Judgment in "Taylor" Case
---------------------------------------------------------------
Intuitive Surgical, Inc. said in its Form 10-Q Report filed with
the Securities and Exchange Commission on October 23, 2014, for
the quarterly period ended September 30, 2014, that plaintiff in
the product liability action Josette Taylor, as Personal
Representative of the Estate of Fred E. Taylor, deceased; and on
behalf of the Estate of Fred E. Taylor v. Intuitive Surgical,
Inc., No. 09-2-03136-5, has filed a notice of appeal of the
judgment was entered in the Company's favor.
In February 2011, the Company was named as a defendant in a
product liability action that had originally been filed in
Washington State Superior Court for Kitsap County against the
healthcare providers and hospital involved in plaintiff's
decedent's surgery (Josette Taylor, as Personal Representative of
the Estate of Fred E. Taylor, deceased; and on behalf of the
Estate of Fred E. Taylor v. Intuitive Surgical, Inc., No. 09-2-
03136-5).
In Taylor, plaintiff asserted wrongful death and product liability
claims against the Company, generally alleging that the decedent
died four years after surgery as a result of injuries purportedly
suffered during the surgery, which was conducted with the use of
the da Vinci Surgical System. The plaintiff in Taylor asserted
that such injuries were caused, in whole or in part, by the
Company's purported failure to properly train, warn, and instruct
the surgeon. The lawsuit sought unspecified damages for past
medical expenses, pain and suffering, loss of consortium as well
as punitive damages.
A trial commenced in the action on April 15, 2013. On May 23,
2013, the jury returned a defense verdict, finding that the
Company was not negligent. Judgment was entered in the Company's
favor on June 7, 2013. Plaintiff has filed a notice of appeal.
J.C. PENNEY: Judge Denies Bid to Dismiss "Anjum" Labor Suit
-----------------------------------------------------------
District Judge Raymond J. Dearie held that J.C. Penney
Corporation's offer to settle labor claims of Afza Anjum and three
other plaintiffs did not extend all the relief plaintiffs could
possibly recover in a class action complaint in an Oct. 9, 2014
Memorandum of Decision available at http://is.gd/hWfB9Ufrom
Leagle.com.
The judge denied J.C. Penny's motion to dismiss Anjum, et al.'s
class action complaint for lack of a justiciable controversy.
The case is AFZA ANJUM, JANET TERRANA, VERONICA MONAHAN and
CAMILLE FOREST, on behalf of themselves and all others similarly
situated, Plaintiffs, v. J.C. PENNEY COMPANY, INC., J.C. PENNEY
CORPORATION, INC., Defendants, Case No. 13 CV 0460 (RJD) (RER)
(E.D.N.Y.). The four named plaintiffs filed their complaint
against J.C. Penny in January 2013, alleging violations of New
York Labor Law and non-receipt of full compensation for work
rendered before and after their scheduled shifts and on lunch
breaks. J.C. Penney subsequently extended an offer of settlement
to the four plaintiffs, to which the plaintiffs rejected.
About five months after the case was filed, about 50 individuals
signaled their intent to join the action by filing opt-in consent
forms through the named plaintiffs' attorneys.
Also in his Oct. 9 Decision, Judge Dearie denied J.C. Penny's move
to strike the opt-in consent forms, without prejudice to any
future motion to dismiss the claims of an individual opt-in
plaintiff or motion to decertify the class.
J.C. Penney Corporation, Inc., Defendant, is represented by Jed L.
Marcus, Esq. -- jmarcus@bressler.com -- and Tracey Salmon Smith,
Esq. -- tsmith@bressler.com -- of Bressler Amery & Ross, PC.
JACK RABBIT: Has Refused to Pay Minimum & OT Wages, Action Claims
-----------------------------------------------------------------
Joseph Jolivette, individually and on behalf of all others
similarly situated v. Jack Rabbit USA, LLC, a Florida limited
liability company, Jack Rabbit Services, LLC, a Kentucky limited
liability company, 888 Dispatching Services, LLC, a Florida
limited liability company, Melissa Wehrle, an individual, David
Hain, an individual, and Theodore Kaufman, an individual; jointly
and severally, Case No. 3:14-cv-04670 (N.D. Cal., October 20,
2014), alleges that the Defendants willfully refused to pay a
minimum wage and overtime and reduced employee wages through
unlawful deductions.
The Defendants provide roadside assistance services to customers
in at least 50 markets in multiple states across the United
States.
The Plaintiff is represented by:
Andrew Scott Williams, Esq.
SIMMONS HANLY CONROY, LLC
One Court Street
Alton, IL 62002
Telephone: (618) 259-2222
Facsimile: (618) 259-2251
E-mail: awilliams@simmonsfirm.com
KEURIG GREEN: SEC Ends Four-Year Investigation Into Bookkeeping
---------------------------------------------------------------
Hilary Niles, writing for VTDigger, reports that Keurig Green
Mountain, Inc., announced on Oct. 17 that the U.S. Securities and
Exchange Commission had closed a four-year investigation into the
company's bookkeeping. No charges were filed, and the Waterbury-
based coffee and beverage company faces no enforcement actions.
The firm had been under scrutiny for improper accounting and
disclosures, after hedge fund manager David Einhorn publicly
questioned its practices. A class-action lawsuit was later
dismissed. The company (since renamed Keurig Green Mountain, but
still holding onto its traditional ticker symbol GMCR) said an
internal investigation found no wrongdoing.
"Since 2010, we have voluntarily cooperated with the government in
an open and fulsome manner and we are very pleased to have this
matter closed," said Brian Kelley, Keurig's president and CEO.
"Throughout this time, every Keurig employee stayed focused on
delivering innovative beverage solutions that consumers embrace as
part of their daily routines."
Kelley, former president of Coca-Cola Refreshments, joined GMCR in
2012. Coca-Cola has since acquired 16 percent ownership of the
company's stock.
LEE PUBLICATIONS: $3.2MM Dalton Case Settlement Gets Initial OK
---------------------------------------------------------------
District Judge Gonzalo P. Curiel granted preliminary approval of a
settlement in the class action captioned YVONNE DALTON, DIAN
GARZA, ARMINDA GUZMAN, SHARON HUGHEN, ETELVINA SALGADO, HECTOR
MIGUEL SALGADO, REFUGIO SANCHEZ and LUISA RAMIREZ FLORES,
individually and on behalf of all others similarly situated,
Plaintiffs, v. LEE PUBLICATIONS, INC., a Delaware Corporation, dba
NORTH COUNTY TIMES, and DOES 1 through 50, Defendants, CASE NO.
08-CV-1072 GPC NLS, (S.D. Cal.).
The Court preliminarily approved a $3,200,000 settlement as fair,
reasonable and adequate for members of the Class.
The Court certified the case as a class action on behalf of the
following Class Members: All individuals who signed written
agreements with Defendant to provide newspapers to home delivery
subscribers of The North County Times, owned by Defendant, Lee
Publications, Inc. as publisher of The North County Times, during
the time period April 17, 2004 through November 1, 2012.
The Court continued the appointment of Plaintiffs Yvonne Dalton,
Dian Garza, Arminda Guzman, Sharon Hughen, Etelvina Salgado,
Hector Miguel Salgado, Refugio Sanchez, and Luisa Ramirez Flores
as Class Representatives and LAW OFFICES OF GREER & ASSOCIATES (C.
Keith Greer, Esq.) and LAW OFFICES OF MARCY KAYE (Marcy E. Kaye,
Esq.) as Class Counsel.
Any Class Member who desires to opt-out of the Class must send,
within 60 days of the postmark of the Notice, a letter requesting
exclusion from the settlement to the Claims Administrator.
Any Class Member who intends to object to the fairness of the
Settlement must, within 60 days of the postmark of the Notice,
send a letter to the Court stating that he or she objects to the
settlement, including the Class Member's name, address, telephone
number, email address, signature, case information (name and
number).
The Court will conduct a final fairness hearing on February 20,
2015, at 1:30 p.m., at 221 West Broadway, Courtroom 2D, San Diego,
CA 92101.
Any applications for an award of attorney's fees, costs, and/or a
Class-representative incentive award must be filed with the Court
and served within 30 days from the postmark of the Notice. After
filing, any applications will be posted on the Settlement Website
for review by Class Members.
The preliminary approval hearing that was set for October 17, 2014
at 1:30 p.m. was vacated.
A copy of the Court's October 17, 2014 ruling is available at
http://is.gd/FJXmn0from Leagle.com.
Lee Publications, Inc., Defendant, represented by Camille A. Olson
-- colson@seyfarth.com -- Seyfarth Shaw LLP, David D Kadue --
dkadue@seyfarth.com -- Seyfarth Shaw, Dean A. Martoccia --
dmartoccia@seyfarth.com -- Seyfarth Shaw LLP & Richard B. Lapp --
rlapp@seyfarth.com -- Seyfarth Shaw LLP.
LOGMEIN INC: Facing Unfair Competition Lawsuit in California
------------------------------------------------------------
LogMeIn Inc. said in its Form 10-Q Report filed with the
Securities and Exchange Commission on October 24, 2014, for the
quarterly period ended September 30, 2014, a putative class action
complaint was filed on August 28, 2014, against the Company in the
U.S. District Court for the Eastern District of California (Case
No. 1:14-cv-01355) by an individual on behalf of himself and on
behalf of all other similarly situated individuals, or
collectively, the Plaintiffs. The complaint includes claims made
under California's Unfair Competition Law and Business and
Professions Code and relates to the Company's sale of its
perpetually licensed Ignition for iOS application, or the App, and
the Plaintiffs' continued use of the App. The Plaintiffs'
complaint seeks damages in an unspecified amount and injunctive
relief. Given the inherent unpredictability of litigation and the
fact that this litigation is still in its early stages, the
Company is unable to predict the outcome of this litigation or
reasonably estimate a possible loss or range of loss associated
with this litigation at this time.
LogMeIn, Inc. provides a portfolio of secure, easy-to-use cloud-
based offerings aimed at transforming the way people work and live
through secure connections to the computers, devices, data and
people that make up their digital world.
M&T BANK: Financial Regulator Wants to Intervene in Class Action
----------------------------------------------------------------
Zachary Zagger, Linda Chiem and Jeff Sistrunk, writing for Law360,
report that Pennsylvania's financial regulator on Oct. 17 sought
to intervene in a consolidated class action alleging Wilmington
Trust Corp. misled investors about a precarious loan portfolio
that fueled the bank's downfall and hasty merger with M&T Bank
Corp., asserting that it needs to protect privileged, confidential
communications with Wilmington Trust.
The Pennsylvania Department of Banking and Securities said in a
motion filed in Delaware federal court that it should be allowed
to intervene to oppose the investors' efforts to force Wilmington
Trust to produce documents the bank has been withholding by
claiming they purportedly contain "confidential supervisory
information" and are protected from disclosure by the bank
examination privilege.
PaDOBS said it was notified late last month that confidential
information stemming from its examinations and supervision of
Wilmington Trust was subject to the plaintiffs' Aug. 5 motion to
compel. The department has conducted independent examinations of
Wilmington Trust, as well as joint examinations of the bank with
the Federal Reserve Bank of Philadelphia, according to Friday's
brief.
"PaDOBS files this intervention in order to assert the bank
examiner privilege in furtherance of the public policy supporting
open and candid communications between financial institutions and
their regulators necessary to maintain the safety and soundness of
depository institutions," the brief said.
PaDOBS' motion comes a week after U.S. Attorney Charles M. Oberly
III sought to join the suit, asking the court to stay discovery
pending a criminal investigation. The court has yet to rule on the
U.S. attorney's motion.
Mr. Oberly asked the court to stop fact discovery in the suit
until March 1, 2015, because it "would, if permitted to move
forward, have a substantial negative impact on the government's
ongoing investigation of the Wilmington Trust Corp. and its
employees, which overlaps substantially with the private
securities lawsuit."
The government has been investigating Wilmington Trust and its
officers on allegations they made materially false statements and
omissions in public securities filings, including underreporting
hundreds of millions of dollars in past-due loans, according to
court documents.
The investigation has resulted in criminal charges against three
former Wilmington Trust employees and three former bank customers,
the government has said. Two of the high-ranking employees are
now cooperating with the government and have agreed to delay their
sentencing hearings until their cooperation is over.
In March, a Delaware federal judge denied most of the defendants'
motions to dismiss the consolidated class action, holding that the
group of shareholders had provided adequate evidence that
Wilmington Trust and its executives were less than forthright in
U.S. Securities and Exchange Commission filings, quarterly
conference calls and other disclosures to allow the plaintiffs'
securities fraud claims to proceed.
The suit accuses Wilmington Trust of concealing information about
its fiscal health in its filings with the SEC in 2008 and 2009,
even as the credit crisis toppled other top financial
institutions. The statements allegedly concealed a raft of
problems with the bank's lending and accounting practices, its
procedures for managing credit risk, and the amount of money it
had set aside to cover potential losses on shoddy loans, according
to court documents.
Wilmington Trust had sought to have the suit dismissed by arguing
that the SEC filings and other communications provided
shareholders with adequate descriptions of its overall credit
health, and that no investors would have been unreasonable to base
decisions on the allegedly inaccurate data. The suit also names
former bank executives, former auditor KPMG LLP, and the
securities arm of JPMorgan Chase & Co. as defendants.
The Pennsylvania Department of Banking and Securities is
represented by Deputy Chief Counsel Linda Carroll and Senior
Deputy Chief Counsel Begene A. Bahl.
The lead plaintiffs are represented by Steven B. Singer, Hannah G.
Ross -- hannah@blbglaw.com -- John Rizio-Hamilton --
johnr@blbglaw.com -- Lauren McMillen Ormsbee --
laurenm@blbglaw.com -- Stefanie J. Sundel, Adam D. Hollander and
Blair A. Nicholas of Bernstein Litowitz Berger & Grossmann LLP and
Maya S. Saxena, Joseph E. White III, Lester R. Hooker and Brandon
T. Grzandziel -- bgrzandziel@saxenawhite.com -- of Saxena White
PA.
Wilmington Trust is represented by Thomas J. Allingham II --
thomas.allingham@skadden.com -- Stephen D. Dargitz --
stephen.dargitz@skadden.com -- Daniel R. Ciarrocki and Robert S.
Saunders -- rob.saunders@skadden.com -- of Skadden Arps Slate
Meagher & Flom LLP. JPMorgan is represented by Stephen C. Norman
-- snorman@potteranderson.com -- and Matthew D. Stachel of Potter
Anderson & Corroon LLP.
The U.S. is represented by U.S. Attorney Charles M. Oberly III of
the District of Delaware, Assistant U.S. Attorneys Robert F.
Kravetz and Lesley F. Wolf, and Brent Wible and William Johnston
of the U.S. Department of Justice.
The case is In re: Wilmington Trust Securities Litigation, case
number 1:10-cv-00990, in the U.S. District Court for the District
of Delaware.
MEDGUARD LLC: Faces "Rosado" Suit Over Failure to Pay Overtime
--------------------------------------------------------------
Hector Rosado and other similarly-situated individuals v.
Medguard, LLC, a Florida Limited Liability Company and Patricia
Lavelle, individually, Case No. 1:14-cv-23870 (S.D. Fla., October
17, 2014), is brought against the Defendant for failure to pay
overtime wages for worked in excess of 40 hours per week.
Medguard, LLC manufactures and distributes water proof bath
guards.
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
MEDTRONIC INC: 9th Cir. Dismisses Sultan Labor Law Class Action
---------------------------------------------------------------
The United States Court of Appeals for the Ninth Circuit issued a
memorandum on October 20, 2014, dismissing the case captioned
JONATHAN SULTAN, an individual, on behalf of himself and all
others similarly situated, Plaintiff-Appellant, v. MEDTRONIC,
INC., a Minnesota Corporation, Defendant-Appellee, NO. 12-57072.
Jonathan Sultan filed a labor law class action suit in which he is
the sole proposed representative on behalf of a putative class
against Medtronic, Inc., his former employer. The district court
denied class certification and dismissed some of Sultan's overtime
claims. Shortly thereafter, Sultan entered into a Fed. R. Civ. P.
Rule 68 Judgment with Medtronic -- effectively settling the case.
Although Sultan now says he intended this settlement agreement to
cover only his remaining individual claims, the Order of Judgment,
to which Sultan agreed, reads: "[T]he total amount paid by
defendant is paid on account of any liability claimed in this
action, including all costs of suit, interest, and attorney's fees
otherwise recoverable in this action by plaintiff. . . ."
According to the Ninth Circuit ruling, if a putative class
representative wishes to settle his own claims while preserving
his right to appeal the denial of class certification, it is
incumbent upon him to include language to that effect in the
settlement. Sultan agreed to this broad language. As a result,
any individual and class claims Sultan alleged in the action
merged into the Rule 68 Judgment and have been exhausted. The
language of that judgment controls on the jurisdictional question.
Sultan retains no "personal stake" in the class claims he is
attempting to appeal, and no other named plaintiff is present to
argue the class certification question, rendering this case moot,
the Ninth Circuit concluded.
A copy of the Ninth Circuit Opinion is available at
http://is.gd/9miBuWfrom Leagle.com.
MEMORIAL HOSPITAL: Faces Class Action Over Florida PIP Fees
-----------------------------------------------------------
Memorial Hospital Jacksonville and North Florida Regional Medical
Center, Inc., of Gainesville, Fla., along with JFK Medical Center
and parent company HCA, Inc., have been charged with violations of
Florida's Deceptive and Unfair Practices Act in an amended class
action complaint filed in a federal court by Cohen Milstein
Sellers & Toll PLLC.
Two Florida residents, Nicholas Acosta and Penny Wollmen, have
joined Marisela Herrera and Luz Sanchez as named plaintiffs in the
amended class action lawsuit, which was filed Oct. 15, 2014, in
U.S. District Court Middle District of Florida, Tampa Division.
The complaint challenges the Florida medical centers and HCA,
their Nashville, Tenn., based parent company, with billing
exorbitant and unreasonable fees for emergency radiological
services covered in part by the plaintiffs' Florida Personal
Injury Protection (PIP) insurance.
Under Florida's No Fault Car Insurance Law, drivers are required
to have $10,000 in PIP insurance.
"In many cases the rates charged PIP-covered patients were up to
65 times higher than the hospitals' usual and customary charges
and or payments for similar radiological services to non-PIP
patients," said plaintiffs' lead attorney Theodore J. Leopold of
Cohen Milstein's Palm Beach Gardens office. "Patients who show up
at the emergency room following a motor vehicle accident not only
have to pay their 20 percent co-pay, but then are billed far more
for their tests, which clearly violates the PIP law that requires
'customary and reasonable' pricing."
First filed in U.S. District Court, Southern District of Florida,
in July 2014, the lawsuit was brought by Marisela Herrera and Luz
Sanchez, both of whom were PIP-covered patients who were treated
through JFK Medical Center's emergency department after their
automobile accidents in April 2013 and May 2013, respectively.
Ms. Herrera and Ms. Sanchez each received a CT of the brain for
$6,404, a CT scan of the spine for $5,900, and a thoracic spine X-
ray for $2,222. Ms. Herrera also received a lumbar spine X-ray
for $3,359.
Plaintiffs Nicholas Acosta and Penny Wollmen had similar
experiences. Following an Oct. 11, 2013, automobile accident,
Acosta received treatment in the emergency department of Memorial
Hospital Jacksonville. There he was charged $6,965 for a CT scan
of his spine, and $6,277 for a CT scan of his brain. Ms. Wollmen,
who was treated at North Florida Regional Medical Center following
a Feb. 5, 2014, auto accident, was charged $6,853 for the CT scan
of her cervical spine, $6,140 for the CT scan of her brain, and
$1,454 for the X-ray of her thoracic spine.
The complaint charges that because of the exorbitant rates, each
of the plaintiff's $10,000 PIP coverage was prematurely exhausted
and all four were billed thousands of dollars for radiological
services not paid for by their PIP insurers. In terms of
radiological services alone, Ms. Herrera has been billed more than
$6,500, Sanchez has been billed more than $2,500, and Acosta has
been billed more than $13,000. Ms. Wollmen has been paying out-
of-pocket for other medical services, such as regular chiropractic
care that would have been covered in full or in part by her PIP
insurance had it not been exhausted.
The complaint also charges breach of contract since all four
plaintiffs entered into a "Condition of Admission" contract that
provides that patients must pay their accounts at the rates stated
in the hospital's price list. None of the plaintiffs were
provided a price list at the time of medical treatment.
In addition to Cohen Milstein Sellers & Toll PLLC, the plaintiffs
are represented by Boldt Law Firm, of Hollywood, Fla., and
Gonzalez & Cartwright, P.A., of Lake Worth, Fla. For more
information about the lawsuit, visit Herrera and Sanchez et al v.
JFK Medical Center Limited Partnership and HCA, Inc.,
http://www.cohenmilstein.com/cases/350/hca
Founded in 1969, Cohen Milstein Sellers & Toll PLLC --
http://www.cohenmilstein.com-- is a national leader in plaintiff
class action lawsuits and litigation. As one of the premier firms
in the country handling major complex cases, Cohen Milstein, with
80 attorneys, has offices in Washington, D.C., New York,
Philadelphia, Chicago, Palm Beach Gardens, Fla., and Denver, Colo.
For more information, visit http://www.cohenmilstein.comor call
(202) 408-4600.
MERCANTIL COMMERCEBANK: Does Not Pay Workers Properly, Suit Says
----------------------------------------------------------------
Aracellys Morales, and other similarly situated individuals v.
Mercantil Commercebank Florida Bancorp, Inc. and John Does 1-10,
Case No. 1:14-cv-23881 (S.D. Fla., October 20, 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. owns 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
MICHIGAN PETROLEUM: Claims vs. Consumers Energy to be Dismissed
---------------------------------------------------------------
In GREGORY TAYLOR and JAMES NIEZNAJKO, Plaintiffs-Appellees, v.
MICHIGAN PETROLEUM TECHNOLOGIES, INC., Defendant-Appellee, and
CONSUMERS ENERGY COMPANY, Defendant-Appellant, NO. 314534, which
is a class action suit to recover damages related to an explosion
and fire, Consumers Energy appealed by leave granted the trial
court's order denying its motion to dismiss the claims alleged
against it by plaintiffs, Gregory Taylor and James Nieznajko. On
appeal, Consumers Energy argued that Messrs. Taylor and Nieznajko
amended their complaint to include claims against Consumers Energy
after the expiration of the applicable period of limitations.
Although Messrs. Taylor and Nieznajko filed their amended
complaint after Michigan Petroleum indicated its belief that
Consumers Energy was a third-party at fault, Consumers Energy
maintains, because Michigan Petroleum did not comply with the
requirements applicable to a notice of non-party at fault, Messrs.
Taylor and Nieznajko could not rely on MCL 600.2957(2) to extend
the period of limitations and the trial court should have
dismissed the claims as untimely.
The Court of Appeals of Michigan concludes that the trial court
erred when it determined that the identification of Consumers
Energy as a potential third-party at fault met the notice
requirements stated under MCR 2.112(K). Because the
identification did not satisfy the notice requirements, Messrs.
Taylor and Nieznajko could not rely on MCL 600.2957(2) to avoid
application of the three-year period of limitations and the trial
court, accordingly, should have dismissed the claims against
Consumers Energy under MCR 2.116(C)(7).
For these reasons, the Michigan Appeals Court reverses the trial
court ruling and remands the case for entry of an order dismissing
the claims against Consumers Energy. A copy of the Court's
October 14, 2014 ruling is available at http://is.gd/c2R5TDfrom
Leagle.com.
MILLENNIAL MEDIA: Pomerantz Law Firm Files Securities Class Action
------------------------------------------------------------------
Pomerantz LLP on Oct. 17 disclosed that it has filed a class
action lawsuit against Millennial Media, Inc. and certain of its
officers. The class action, filed in United States District
Court, Southern District of New York, and docketed under
14-cv-8330, is on behalf of a class consisting of all persons or
entities who purchased Millennial Media securities between March
28, 2012 and May 7, 2014, inclusive. This class action seeks to
recover damages against Defendants for alleged violations of the
federal securities laws under the Securities Exchange Act of 1934.
If you are a shareholder who purchased Millennial Media securities
during the Class Period, you have until December 1, 2014 to ask
the Court to appoint you as Lead Plaintiff for the class. A copy
of the Complaint can be obtained at www.pomerantzlaw.com
To discuss this action, contact Robert S. Willoughby at
rswilloughby@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll
free, x237. Those who inquire by e-mail are encouraged to include
their mailing address, telephone number, and number of shares
purchased.
Millennial Media 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 Complaint alleges that prior to Millennial Media's IPO and
throughout the Class Period, the Company touted its proprietary
technology and data platform, referred to as "MYDAS," as a
solution for both application developers and advertisers insofar
as MYDAS and its component services allowed for both: (1) the easy
and effective integration of Millennial Media advertising into
mobile applications by developers; and (2) the flexible targeting
and accurate reporting of advertising campaigns for advertisers.
Millennial Media also claimed that the features and performance of
its MYDAS platform were drawing customers and that its strategic
acquisitions were enhancing the Company's existing capabilities.
On February 19, 2013, after the close of the markets, the Company
issued a press release announcing revenue for the fourth quarter
of 2012 of $58 million-sharply below analysts' expectations of
$62.9 million. Millennial Media also gave disappointing revenue
guidance for 2013 and disclosed that it would acquire Metaresolver
Inc. Millennial Media's poor results, weak guidance, and its need
to acquire Metaresolver arose out of ongoing problems with the
Company's then-existing technologies, such as the MYDAS platform's
inability to provide accurate and reliable records of end-users
clicks and actions, which were driving clients away. In response
to this partial disclosure of the true state of the Company's
proprietary software and related technologies, Millennial Media's
stock price fell $5.38 per share, or 37.54 percent, to close at
$8.95 per share on February 20, 2013.
On May 7, 2014, after the markets had closed, Millennial Media
issued a press release reporting revenue for the first quarter of
2014 below analysts' projections and dour revenue guidance for the
coming quarter of between $70 million and $75 million, well below
analysts' projections of $96.4 million. Additionally, the Company
revealed that its Chief Financial Officer, Michael B. Avon, would
step down from his role as of July 1, 2014 to "pursue other career
interests." In response to the disclosure of the true state of
the Company's competitive position, low revenue visibility, poor
outlook for growth and the deleterious effects of its weak and
underdeveloped technology on its prospects, Millennial Media's
stock price fell $1.99 per share, or 37.20 percent, to close at
$3.36 per share following the next trading session on May 8, 2014.
With offices in New York, Chicago, Florida, and San Diego, The
Pomerantz Firm -- http://www.pomerantzlaw.com-- concentrates its
practice in the areas of corporate, securities, and antitrust
class litigation. Founded by the late Abraham L. Pomerantz, known
as the dean of the class action bar, the Pomerantz Firm pioneered
the field of securities class actions. Today, more than 70 years
later, the Pomerantz Firm continues in the tradition he
established, fighting for the rights of the victims of securities
fraud, breaches of fiduciary duty, and corporate misconduct. The
Firm has recovered numerous multimillion-dollar damages awards on
behalf of class members.
MONTICELLO CITY, MN: Issues Bond to Cover Class Action Costs
------------------------------------------------------------
Tim Hennagir, writing for Monticello Times, reports that
Monticello council members approved the issuance of a $6.51
million general obligation bond on Oct. 13 that will cover a $5.75
million lawsuit.
Finance Director Wayne Oberg and Tammy Omdal, manager of Northland
Strategies and senior vice president, Northland Securities, Inc.,
provided additional background about the two-part bond issue,
which was unanimously approved.
On Sept. 15, a federal court approved the settlement of a class
action suit between the city and FiberNet bond holders. The
judgment settles the city's $26.4 million revenue bond obligation
for $5.75 million, Mr. Oberg stated in a memo.
The bond issue contains two portions: judgment and equipment. The
$6 million judgment bond portion of the issue includes $5.75
million for the settlement and $250,000 for issuance, capitalized
interest and 1 percent underwriter's discount.
The $510,000 equipment portion includes $500,000 for a fire truck
and plow truck and $10,000 for issuance costs and a 1 percent
underwriter's discount, Oberg said.
The bonds are general obligations of the city of Monticello backed
by a pledge of the city's full faith, credit and unlimited taxing
ability.
The principal and interest on the bonds is expected to be paid 100
percent by taxes levied, first levy to be made in 2015 for
collection in 2016.
According to Mr. Oberg, this annual debt service levy can be
canceled or adjusted by resolution if other resources (i.e. liquor
store) become available.
The first payment on the judgment portion of the bonds is due on
Dec. 1, 2015.
This payment is made from capitalized interest, which essentially
means the city will borrow its first payment. The first payment
on the equipment portion of the bonds is an interest only payment
due on the same day, Oberg stated in his council memo.
Lease payments from the general fund to the central equipment fund
will provide funds for equipment debt service.
According to Mr. Oberg, the FiberNet Monticello judgment bonds
come with a unique extraordinary redemption feature that gives the
city greater flexibility with FiberNet operations and is estimated
to have an interest rate impact of one-tenth of 1 percent, about
$65,000 over the life of the bonds.
The bonds will be rated by Moody's Investor Services. The city's
current G.O. bond rating is A2.
During discussion, Messrs. Oberg and Omdal answered city council
questions about the redemption feature after the bond sale
resolution was pulled from the consent agenda for further
discussion.
"The clock started ticking on the 30-day appeal [timeline]
Sept. 15," Mr. Oberg said. "We don't anticipate there being an
appeal, so we want to press ahead with the sale of the bonds."
Mr. Oberg said the projected sale date for the bonds would be
Nov. 10. "That's because we want to keep the sale under our $10
million qualified bank ceiling for the year."
Councilmember Brian Stumpf wanted to know about the total cost of
the fire truck. Oberg said that cost totaled $334,000.
"We have the resources in our central fund to purchase the fire
truck right now, but this bond helps us replenish a portion of
that. It's not coming out the city's general fund. It's coming
from central," Mr. Oberg said.
Over the next 10 years, the general fund, via a lease arrangement,
will receive a $41,300 payment to replace another fire truck,
Oberg told the city council.
"The reason that I do it this it way is because equipment
expenditures have to compete with all other expenditures on an
annual basis for funding," Mr. Oberg said. "If we put off
equipment purchases to years where there is money to make
purchase, if we let that slide, if we do that on an annual basis,
we make those capital expenditures compete with normal operating
expenditures. We are getting interest on money that's in the
central fund and paying the interest," he said.
Councilmembers Tom Perrault and Lloyd Hilgart wanted to know more
about the possible impact of the unique extraordinary redemption
feature. Mr. Hilgart asked about a hypothetical sale scenario
involving the FiberNet telecommunication's system. No such sale is
currently being planned by the city.
"Many times when you sell bonds, you have an optional call date,"
Mr. Omdal explained on Oct. 13. "These bonds are priced that way.
The extraordinary redemption covers the city if you decide to sell
the enterprise or to lease it out. That would cause a taxable
event," she said. "You would be able to to call in the bonds and
refund them. The reason that's in this public offering statement
is because when the original fiber system bonds were sold, they
were priced to provide flexibility."
Mr. Omdal said the city council could make a decision to not make
the bonds taxable in the future. "My advice to you, is that for
this cost, you leave that language in as you did last time," she
said. "That way, you would not tie your hands with the way you
would manage, own or lease that facility."
Mr. Hilgart asked about a potential sale scenario.
"Let's just say three years from now, something were to happen and
it got sold," Mr. Hilgart said. "At that point, if we didn't have
the extraordinary redemption feature in there, we could not pay
the bonds off early? Is that correct?"
Mr. Omdal said Hilgart was correct. "You could not call in those
bonds [if you did that.]"
NATIONAL COLLEGIATE: Sued Over Breach of Fair Labor Standards Act
-----------------------------------------------------------------
Samantha Sackos, on her own behalf and on behalf of similarly
situated persons v. National Collegiate Athletic Association a/k/a
NCAA and NCAA Division 1 Member Schools, et al., Case No. 1:14-cv-
01710 (S.D. Ind., October 20, 2014), is brought against the
Defendants for violation of the Fair Labor Standards Act.
National Collegiate Athletic Association operates federal and non-
federal work study programs to promote part time employment of
students.
The Plaintiff is represented by:
Paul L. McDonald, Esq.
PL MCDONALD LAW LLC
1800 JFK Boulevard, Suite 300
Philadelphia, PA 19103
Telephone: (267) 238-3835
Facsimile: (267) 238-3801
E-mail: paul@plmcdonaldlaw.com
NEENAH JOINT: Claims Dismissal in Teachers' Class Action Reversed
-----------------------------------------------------------------
A lawsuit was brought by teachers in the Neenah Joint School
District concerning the District's decision to amend the teachers'
retirement plan. In April 2013, six teachers employed by the
District filed a complaint "on behalf of themselves and all other
persons similarly situated" asserting legal claims for damages
arising out of changes to the District's retirement plan. The
teachers alleged that changes to the retirement plan in 2012
"effectively terminated the [prior retirement plan] and, in its
place, provided a retirement benefit that is wholly insignificant
in comparison." The teachers asserted that before filing the
lawsuit, they served the District with notice of their claims as
required by WIS. STAT. Section 893.80(1d) (2011-12). They
attached a copy of their notice of claim to the complaint, along
with a copy of the District's letter denying the claim.
The District moved to dismiss the lawsuit on several grounds,
including that the notice of claim was defective. The District
asserted that of the six plaintiffs in the lawsuit, only two,
Townsend and Moriarty, were "identified" in the notice of claim.
The District acknowledged that the notice "included" an attached
exhibit listing the names and amounts of "purported class
members." The District asserted, however, that nowhere in the
notice of claim did Townsend and Moriarty assert "authority to
file the notice of claim on behalf of the purported class members"
or "efforts . . . to contact the individual potential class
members to receive such necessary authority." The District cited
WIS. STAT. Section 893.80 and case law requiring that the notice
of claim must "at the minimum identify the claimants and show that
the claims are being made by their authority." Hicks v. Milwaukee
Cnty., 71 Wis.2d 401, 407, 238 N.W.2d 509 (1976). The District
argued that Section 893.80 bars the actions of any of the
plaintiffs who were not the named claimants in the notice of claim
(i.e., everyone other than Townsend and Moriarty).
The trial court denied the motion to dismiss the claims of
Townsend and Moriarty but dismissed without prejudice the claims
of the rest of the plaintiffs. The court stated that WIS. STAT.
Section 803.08, under Hicks, "has no application to the procedure
in making claims against the [S]chool [D]istrict." The court
asserted that "no claim has been filed by anyone other than" the
two claimants named as representatives of the class and that
"nothing contained in the notice of claim and notice of
circumstances [states] that claims on behalf of the other
claimants is made by their authority." The plaintiffs appealed.
On October 22, 2014, the Court of Appeals of Wisconsin, District
II reversed the trial court ruling saying no court of which it is
aware has ever dismissed on "authority" grounds the claims of
claimants whose names, addresses, and claim amounts were itemized
in a notice of claim. It said the class actions dismissed by
Hicks and its progeny were claims by unnamed, unidentified
claimants. Where the notice identified the claimants, their
addresses, and their claim amounts, and was signed by an attorney
asserting that he represented all of the claimants, it was error
for the trial court to dismiss claims on the grounds that "nothing
contained in the notice of claim and notice of circumstances
[showed] that claims on behalf of the other claimants [were] made
by their authority," it added.
A copy of the Appeals Court's opinion is available at
http://is.gd/dCsa3Mfrom Leagle.com.
The case is ROBERT B. TOWNSEND AND BRUCE P. MORIARTY, PLAINTIFFS,
TIMOTHY HOPFENSPERGER, JEFFREY L. MARTIS, MONICA SCHOEN AND DAVID
E. MCCARTHY, PLAINTIFFS-APPELLANTS, v. NEENAH JOINT SCHOOL
DISTRICT, DEFENDANT-RESPONDENT, APPEAL NO. 2013AP2839.
NMJ INC: Faces "Ruiz" Suit Over Failure to Pay Overtime Wages
-------------------------------------------------------------
Oscar Alvarez Ruiz, Individually and On Behalf of All Others
Similarly Situated v. NMJ, Inc., d/b/a The Falls Management, Falls
of Town Park, LP, FTP GP, LLC, AND Rao J. Polavarapu, indivually,
Case No. 4:14-cv-02954 (S.D. Tex., October 17, 2014), is brought
against the Defendant for failure to pay overtime wages for worked
in excess of 40 hours per week.
The Defendants own and operate apartment complexes within Texas.
The Plaintiff is represented by:
Melissa Moore, Esq.
MOORE & ASSOCIATES
Lyric Center
440 Louisiana Street, Ste 675
Houston, TX 77002
Telephone: (713) 222-6775
Facsimile: (713) 222-6739
E-mail: melissa@mooreandassociates.net
NORTHROP GRUMMAN: "Carlson" Case Plaintiffs May Amend Complaint
---------------------------------------------------------------
Magistrate Judge Maria Valdez allowed plaintiffs to file a first
amended complaint in the case captioned ALAN CARLSON and PETER
DELUCA, Plaintiffs, v. NORTHROP GRUMMAN CORPORATION and the
NORTHROP GRUMMAN SEVERANCE PLAN, Defendants, NO. 13 C 2635, (N.D.
Ill.). The Plaintiffs asked permission from the court to amend
their complaint to include claims for class-wide relief.
"The Plaintiffs must file their amended complaint no later than
fourteen days from the date of this order," wrote Mag. Judge
Valdez in her memorandum opinion and order dated October 20, 2014,
a copy of which is available at http://is.gd/4EiquRfrom
Leagle.com.
Northrop Grumman Corporation, Defendant, represented by Nancy G.
Ross -- nross@mayerbrown.com -- Mayer Brown LLP & Sam P Myler --
smyler@mayerbrown.com -- Mayer Brown LLP.
NOVA SCOTIA: Class Action Lawyer Won't Appeal Attorney Fee Ruling
-----------------------------------------------------------------
Eva Hoare at Herald News reports that the lawyer who spearheaded a
class action lawsuit against the province and the Nova Scotia Home
for Colored Children, says he won't appeal a court decision
cutting his firm's fees. And a spokesman for the home's former
residents said on Oct. 17 that his group is "offended" by the
decision because their case wouldn't have been settled without
Wagners taking it on pro bono.
Nova Scotia Supreme Court Justice Arthur LeBlanc on Oct. 16
reduced Wagners' proposed C$6.6 million fee to about C$5.7
million.
Ray Wagner said appealing the decision would harm his clients
more. Wagners had asked for 19.4 per cent of the combined C$34
million settlement won on behalf of the residents, but was given
17 per cent by the judge. (The home settled for C$5 million and
the province for C$29 million.)
"Although we feel the decision is wrong at law, we're also very
concerned about the claimants," Wagner said in an interview
Friday.
"We said we would do nothing that would cause additional harm to
the residents. They've suffered enough."
Residents had claimed they suffered severe abuse at the hands of
former staffers at the home for decades and no one did anything to
help.
Wagners, which represented two sets of claimants who were
eventually rolled into the class action in 2007-08, took the case
on a contingency basis nearly 17 years ago.
Mr. Wagner pegged his firm's losses in the case around C$1
million, but said battling Justice LeBlanc's decision would
further delay the class-action payout. Disbursement of the C$34
million was set to start on Oct. 10, but Justice LeBlanc's
requests for more information from Wagners about billing and court
precedents caused a delay.
In a decision released to the lawyers on Oct. 16, Justice LeBlanc
said he had problems with a lack of record keeping on the part of
Wagners when it took on about 61 individual claimants' cases
against the province and the home starting in the late 1990s.
Those claimants were ultimately rolled into the class action, and
after that more exacting records of time and billings were kept,
Wagners said.
The firm, in addition to the C$6.6 million, had asked for
C$500,000 in invoices for representing the early cases that were
ultimately absorbed into the class. But Justice LeBlanc refused
all but 20 per cent of those costs, and gave lawyers about five
more per cent for other associated fees.
Tony Smith, a co-chairman for the group VOICES, which represents
the former residents, said he was very disturbed by the judge's
ruling.
"I'm truly offended by this decision," Mr. Smith said. "It
doesn't make sense to us."
Mr. Smith said VOICES feels the decision put Mr. Wagner "in a
corner."
Mr. Smith was one of the early claimants who launched an
individual action against the government and the home. Wagner took
his and the others on contingency.
"I'm quite upset that a person like Ray Wagner, who took the risk
(is) to now be tainted with the brush of somehow trying to be
weasling money out of us," said Smith.
He said he and other co-chairs of VOICES urged Wagner to appeal.
Overall Justice LeBlanc's decision serves to make especially the
early claimants feel "invisible" all over again because it would
have forced them to pay hefty legal bills if Wagners hadn't
absorbed them, said Mr. Smith.
The decision was "basically punishing the people who pioneered"
the cause, said Smith. "It's denying us access to justice. Why is
this case being ruled differently?"
"We don't understand because we're not complaining about the
fees."
Mr. Wagner said unfortunately the decision places a pall on future
class actions and will make lawyers in Nova Scotia think twice
about taking cases on a contingency basis.
OHIO: Claimants' Response Rate in BWC Class Action Settlement Low
-----------------------------------------------------------------
Jay Miller, writing for Crain's Cleveland Business, reports that
with less than a week to go before the filing deadline, only 7% of
the 300,000 firms entitled to a portion of a $420 million
settlement with the Ohio Bureau of Workers' Compensation have made
claims for a refund of their overpayment.
Eligible employers must make a claim postmarked by Oct. 22, to
receive a share of the settlement.
In a class action case that has been winding through the courts
for seven years, a group of small businesses successfully argued
that the bureau illegally charged excessive rates to small
businesses that couldn't qualify for a group and reason a group
discount.
In May, a state appeals court concurred with a lower court ruling
that the bureau had granted unreasonably steep discounts -- as
much as 90% -- to employers who annually could join groups.
To avoid an appeal, the two sides agreed to a settlement this
summer that created the $420 million pool and notified the firms
eligible that they had to file a claim or an objection to the
proposed settlement by the deadline.
"For a class action case, the response is not actually that low,"
said Christopher Ernst, a partner in the Cleveland office of the
Bricker & Eckler law firm that has been appointed the settlement's
special master. "It's not at all unusual to have a single-digit
response."
Mr. Ernst said the vast majority of claims owed are under $25,000.
He said that any money unclaimed will revert to the BWC.
What makes this case atypical, however, is the size of the
settlement pool and the fact that the class is what is called a
closed class. A closed class is one where all the members were
easily identified -- in this case because all were paying into the
state's workers' compensation fund.
It's typical in a class action case that members of the class
don't respond, either because they've moved and can't be reached
or their piece of the settlement is too small to bother with,
sometimes only a few dollars. As a result, the company sued may
pay out only a small portion of the settlement pool.
The claims in this case, though, may be more substantial.
James DeRoche, one of the attorneys for the class-action group,
said many of the larger claimants already have filed, and he
expects that low response rate to grow significantly in the last
days before the deadline.
"Everybody waits to the last minute to file," he said. "I have
been on the phone nonstop helping class members get their claims
in. So we expect a substantial uptick."
Mr. DeRoche said the claims filed so far exceed $150 million.
Ohio employers who received a "Notice of Class Action and Proposed
Settlement" by mail must complete a claim form and submit it,
postmarked no later than Oct. 22. Employers that believe they
meet the eligibility requirements but were not contacted should
call the settlement administrator at 844-322-8230.
Details of these procedures can be found at www.OhioBWCLawsuit.com
or by contacting Bricker & Eckler at 216-523-5405.
OMNICARE INC: Files Answer to "Lee" Class Action
------------------------------------------------
Omnicare Inc. has filed an answer to the class action complaint
filed by Charles Lee, the Company said in its Form 10-Q Report
filed with the Securities and Exchange Commission on October 24,
2014, for the quarterly period ended September 30, 2014.
On June 2, 2014, a complaint captioned Charles Lee on behalf of
himself and all others similarly situated v. Omnicare, Inc., No.
14-CIV-1335 was filed against the Company in the U.S. District
Court for the Southern District of California. The plaintiff
brought the action individually and on behalf of a similarly
situated class of plaintiffs. The plaintiff alleges that the
Company violated the Telephone Consumer Protection Act ("TCPA") by
improperly calling cellular telephone numbers using an automatic
telephone dialing system. On July 11, 2014, the Company filed an
answer to the complaint. The Company denies the allegations in the
complaint and intends to vigorously defend itself in this action.
Omnicare is a healthcare services company that specializes in the
management of complex pharmaceutical care.
OMNICARE INC: 6th Cir. Affirmed District Court Dismissal Order
--------------------------------------------------------------
The Court of Appeals for the Sixth Circuit affirmed the District
Court's dismissal with prejudice of a class action against
Omnicare Inc., the Company said in its Form 10-Q Report filed with
the Securities and Exchange Commission on October 24, 2014, for
the quarterly period ended September 30, 2014.
On August 24, 2011, a class action complaint entitled Ansfield v.
Omnicare, Inc., et al. was filed on behalf of a putative class of
all purchasers of the Company's common stock from January 10, 2007
through August 5, 2010 against the Company and certain of its
current and former officers in the U.S. District Court for the
Eastern District of Kentucky, alleging violations of federal
securities laws in connection with alleged false and misleading
statements with respect to the Company's compliance with federal
and state Medicare and Medicaid laws and regulations.
On October 21, 2011, a class action complaint entitled
Jacksonville Police & Fire Pension Fund v. Omnicare, Inc. et al.
was filed on behalf of the same putative class of purchasers as is
referenced in the Ansfield complaint, against the Company and
certain of its current and former officers, in the U.S. District
Court for the Eastern District of Kentucky. Plaintiffs allege
substantially the same violations of federal securities law as are
alleged in the Ansfield complaint. Both complaints seek
unspecified money damages.
The court has appointed lead counsel and a consolidated amended
complaint was filed on May 11, 2012. The Company filed a motion to
dismiss on July 16, 2012. On March 27, 2013, the court granted the
Company's motion to dismiss and dismissed all claims with
prejudice.
On April 26, 2013, the plaintiffs filed a notice of appeal to the
U.S. Court of Appeals for the Sixth Circuit appealing the District
Court's order dismissing the complaint with prejudice. The parties
completed oral argument before the Sixth Circuit on January 30,
2014.
On October 10, 2014, the Court of Appeals for the Sixth Circuit
affirmed the District Court's dismissal with prejudice.
Omnicare is a healthcare services company that specializes in the
management of complex pharmaceutical care.
OMNICARE INC: Nov. 3 Oral Argument at US Supreme Court
------------------------------------------------------
Oral argument at the United States Supreme Court is scheduled for
November 3, 2014, in a class action lawsuit against Omnicare Inc.,
the Company said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 24, 2014, for the quarterly
period ended September 30, 2014.
In February 2006, two substantially similar putative class action
lawsuits were filed in the U.S. District Court for the Eastern
District of Kentucky, and were consolidated and entitled Indiana
State Dist. Council of Laborers & HOD Carriers Pension & Welfare
Fund v. Omnicare, Inc., et al., No. 2:06cv26. The amended
consolidated complaint was filed against Omnicare, three of its
officers and two of its directors and purported to be brought on
behalf of all open-market purchasers of Omnicare common stock from
August 3, 2005 through July 27, 2006, as well as all purchasers
who bought shares of Omnicare common stock in the Company's public
offering in December 2005.
The complaint contained claims under Sections 10(b) and 20(a) of
the Securities Exchange Act of 1934 (and Rule 10b-5 thereunder)
and Section 11 of the Securities Act of 1933 and sought, among
other things, compensatory damages and injunctive relief.
Plaintiffs alleged that Omnicare (i) artificially inflated its
earnings (and failed to file GAAP-compliant financial statements)
by engaging in improper generic drug substitution, improper
revenue recognition and overvaluation of receivables and
inventories; (ii) failed to timely disclose its contractual
dispute with UnitedHealth Group Inc.; (iii) failed to timely
record certain special litigation reserves; and (iv) made other
allegedly false and misleading statements about the Company's
business, prospects, and compliance with applicable laws and
regulations.
The defendants filed a motion to dismiss the amended complaint on
March 12, 2007, and on October 12, 2007, the district court
dismissed the case. On November 9, 2007, plaintiffs appealed the
dismissal to the U.S. Court of Appeals for the Sixth Circuit. On
October 21, 2009, the Sixth Circuit Court of Appeals generally
affirmed the district court's dismissal, dismissing plaintiff's
claims for violation of Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 and Rule 10b-5 thereunder. However, the
appellate court reversed the dismissal for the claim brought for
violation of Section 11 of the Securities Act of 1933, and
returned the case to the district court for further proceedings.
On July 14, 2011, the district court granted plaintiffs' motion to
file a third amended complaint. This complaint asserts a claim
under Section 11 of the Securities Act of 1933 on behalf of all
purchasers of Omnicare common stock in the December 2005 public
offering. The new complaint alleges that the 2005 registration
statement contained false and misleading statements regarding
Omnicare's policy of compliance with all applicable laws and
regulations with particular emphasis on allegations of violation
of the federal Anti-Kickback Statute in connection with three of
Omnicare's acquisitions, Omnicare's contracts with two of its
suppliers, and its provision of pharmacist consultant services.
On August 19, 2011, the defendants filed a motion to dismiss the
plaintiffs' most recent complaint and on February 13, 2012 the
district court dismissed the case and struck the case from the
docket. On March 12, 2012, the plaintiffs filed a notice of appeal
in the U.S. Court of Appeals for the Sixth Circuit. On May 23,
2013, the U.S. Court of Appeals affirmed in part and reversed and
remanded in part the dismissal of the plaintiffs' complaint.
On June 6, 2013, the Company petitioned the Court of Appeals for a
rehearing en banc. The petition for rehearing en banc was denied
on July 23, 2013. On October 4, 2013, the Company filed a petition
for writ of certiorari in the United States Supreme Court.
On March 3, 2014, the United States Supreme Court granted the
Company's petition for writ of certiorari. On June 5, 2014, the
Company filed its Brief in Support of Appeal in the United States
Supreme Court. Oral argument at the United States Supreme Court
is scheduled for November 3, 2014.
Omnicare is a healthcare services company that specializes in the
management of complex pharmaceutical care.
OSI SYSTEMS: Nov. 3 Hearing on Bid to Dismiss Amended Suit
----------------------------------------------------------
OSI Systems, Inc.'s Motion to Dismiss an amended class action
complaint is scheduled to be heard on November 3, 2014, the
Company said in its Form 10-Q Report filed with the Securities and
Exchange Commission on October 24, 2014, for the quarterly period
ended September 30, 2014.
On December 12, 2013, a putative class action complaint was filed
against the Company and certain of its officers in the United
States District Court for the Central District of California
("Court") captioned Roberti v. OSI Systems, Inc., et al., Case No.
2:13-cv-09174-MWF-VBK (the "Securities Class Action"). The Amended
Complaint, filed on May 20, 2014, alleges that the Company and the
individual defendants violated the Securities Exchange Act of 1934
by misrepresenting or failing to disclose facts concerning the
status of Rapiscan's efforts to develop Automated Threat
Recognition software and the alleged use of unapproved parts in
its baggage scanning systems in violation of its contract with the
U.S. Transportation Security Administration (TSA). The Amended
Complaint also asserts that the individual defendants allegedly
sold stock based on material non-public information. Plaintiff
demands a jury trial and seeks class certification, unspecified
damages, an award of pre-judgment and post-judgment interest,
attorneys' and experts' fees, costs, and other unspecified relief.
On July 18, 2014, the Company filed a Motion to Dismiss the
Amended Complaint. The Motion is scheduled to be heard on November
3, 2014.
OSI Systems is a vertically integrated designer and manufacturer
of specialized electronic systems and components for critical
applications. The Company sells its products and provides related
services in diversified markets, including homeland security,
healthcare, defense and aerospace.
PDL BIOPHARMA: Pomerantz Law Firm Files Securities Class Action
---------------------------------------------------------------
Pomerantz LLP on Oct. 17 disclosed that it has filed a class
action lawsuit against PDL BioPharma, Inc. and certain of its
officers. The class action, filed in United States District
Court, District of Nevada, and docketed under 14-cv-01526, is on
behalf of a class consisting of all persons or entities who
purchased PDL BioPharma securities between November 6, 2013 and
September 16, 2014, inclusive. This class action seeks to recover
damages against Defendants for alleged violations of the federal
securities laws under the Securities Exchange Act of 1934.
If you are a shareholder who purchased PDL BioPharma securities
during the Class Period, you have until November 17, 2014 to ask
the Court to appoint you as Lead Plaintiff for the class. A copy
of the Complaint can be obtained at www.pomerantzlaw.com
To discuss this action, contact Robert S. Willoughby at
rswilloughby@pomlaw.com or 888.476.6529 (or 888.4-POMLAW), toll
free, x237. Those who inquire by e-mail are encouraged to include
their mailing address, telephone number, and number of shares
purchased.
PDL BioPharma manages a portfolio of patents and royalty assets.
The Company is involved in the humanization of monoclonal
antibodies and the discovery of a new generation of targeted
treatments for cancer and immunologic diseases. The Company was
formerly known as Protein Design Labs, Inc. and changed its name
to PDL BioPharma, Inc. in 2006.
The Complaint alleges that throughout the Class Period, Defendants
made false and/or misleading statements, and failed to disclose
material adverse facts about the Company's business, operations,
prospects and performance. Specifically, during the Class Period,
Defendants made false and/or misleading statements and/or failed
to disclose that: (1) the Company was overstating its: (i) total
revenues; (ii) royalty revenues; (iii) net income; and (iv) net
cash provided by operating activities; (2) the Company was
understating its operating expenses; (3) the Company failed to
properly classify royalty and milestone payments due under an
agreement with Depomed; and (4) as a result of the above, the
Company's financial statements were materially false and
misleading at all relevant times.
On August 8, 2014, the Company issued a press release announcing
that it had filed a Form 12b-25 Notification of Late Filing with
the SEC allowing for a five-day extension to file its Quarterly
Report on Form 10-Q for the period ended June 30, 2014. According
to the press release, the Company could not finalize its financial
statements for the quarter ended June 30, 2014, due to additional
time necessary to address SEC comments and finalize its review
related to the change in the accounting treatment of the
acquisition of Depomed royalty rights. As a result of the delay
in filing the quarterly report, PDL BioPharma postponed its second
quarter earnings release call, originally scheduled for Monday,
August 11, 2014.
On September 16, 2014, after the market closed, the Company filed
a Form 8-K with the SEC announcing that on September 11, 2014, PDL
BioPharma was orally notified by its independent registered
accounting firm, Ernst & Young LLP that it was resigning effective
September 11, 2014. The resignation was confirmed in a letter
delivered to the Company on September 15, 2014.
On this news, PDL BioPharma's stock plummeted $1.17 per share to
close at $8.48 per share on September 17, 2014, a one-day decline
of over 12% on heavy trading volume.
With offices in New York, Chicago, Florida, and San Diego, The
Pomerantz Firm -- http://www.pomerantzlaw.com-- concentrates its
practice in the areas of corporate, securities, and antitrust
class litigation. Founded by the late Abraham L. Pomerantz, known
as the dean of the class action bar, the Pomerantz Firm pioneered
the field of securities class actions. Today, more than 70 years
later, the Pomerantz Firm continues in the tradition he
established, fighting for the rights of the victims of securities
fraud, breaches of fiduciary duty, and corporate misconduct. The
Firm has recovered numerous multimillion-dollar damages awards on
behalf of class members.
PEPSICO: Aunt Jemima's Heirs File $2-Bil. Royalty Class Action
--------------------------------------------------------------
According to an artice posted by Hasson Rashid at Cambridge
Community Television, Tom Huddleston, Jr. reports that the great-
grandchildren of the woman who once served as Aunt Jemima filed a
class action suit seeking royalty back payments.
The great-grandchildren of Anna Short Harrington, the woman whose
likeness was used for the "Aunt Jemima" logo, are seeking what
they say are their just desserts, along with at least $2 billion,
in a class action lawsuit brought recently against a group of
companies, led by PepsiCo and its subsidiary The Quaker Oats
Company, in federal court in Illinois.
The suit, which also names as defendants Pinnacle Foods and its
former suitor Hillshire Brands, accuses the companies of failing
to pay Harrington and her heirs an "equitable fair share of
royalties" from the pancake mix and syrup brand that uses her
likeness and recipes. According to the lawsuit, Quaker Oats took
control of "64 of [Harrington's] recipes and 22 complete menus"
and marketed them to the public.
Filed by Ms. Harrington's great-grandson, D.W. Hunter, who is
representing himself, the lawsuit alleges that Chicago-based
Quaker Oats hired Ms. Harrington to take over the pre-existing
Aunt Jemima role in 1935 -- a role she continued to serve when the
company first registered the brand's trademark two years later --
and that the company also reproduced Harrington's own pancake
recipe on a mass scale. The suit claims that Harrington had
entered into a "written contractual agreement to play the actress
role of Aunt Jemima" that entitled her to royalties, including a
percentage of the proceeds, accumulated by the brand over the
years.
Mr. Hunter's lawsuit accuses the companies of lying to cover up
Quaker Oats' employment of Harrington, adding that the heirs
determined they were owed royalties when they say they discovered
last October that the company had trademarked the image of their
great-grandmother with the U.S. Patent and Trademark Office in
1937 and after they found a death certificate for Harrington that
named the company as her employer. Mr. Hunter has accused the
companies of breach of contract, conspiracy, and fraud, among
other charges, while alleging that Quaker Oats engaged in
"industrial espionage" to procure Harrington's trade secrets
before failing to compensate her estate on an annual basis
following her death.
The lawsuit estimates that Pinnacle has sold roughly $300 million
worth of frozen pancakes, waffles, and other products from the
Aunt Jemima line without providing Harrington's family with any
royalties. Hillshire HSH had agreed to buy Pinnacle earlier this
year in a $4.2 billion deal that was later called off to free up
the former to be bought by Tyson Foods for $8.6 billion.
Mr. Hunter's 108-page complaint also alleges that PepsiCo PEP,
Pinnacle PF , and Quaker Oats engaged in a pattern "of racial
discrimination towards Anna S. Harrington's heirs . . . reflecting
an innate form of disrespect towards African American people,"
which the lawsuit claims is evidenced in its treatment of
Ms. Harrington and other women who stepped into the Aunt Jemima
role over the years.
A Quaker Oats spokeswoman declined to discuss details of pending
litigation, but added that the company feels the lawsuit is
without merit. "People associate the Aunt Jemima brand with
warmth, hospitality, and comfort, and we stand by this heritage as
well as the ways in which we do business," the company said.
PROGRESSIVE DIRECT: Court Rules in Unfair Practices Case
--------------------------------------------------------
WANDA ESTRADA, WALTER ESTRADA, J.E, NATALIE ESTRADA, CARMEN
BADILLO, and JOSE BURGOS, individually and on behalf of all other
persons similarly situated, Plaintiffs, v. PROGRESSIVE DIRECT
INSURANCE COMPANY, Defendant, CIVIL NO. 12-30020-FDS, (D. Mass.),
is a putative class action alleging unfair and deceptive practices
in the online sale of automobile-insurance policies. Plaintiffs
Wanda Estrada, Walter Estrada, J.E., Natalie Estrada, Carmen
Badillo, and Jose Burgos purchased automobile insurance from
defendant Progressive Direct Insurance Company. Plaintiffs were
all denied personal-injury-protection (PIP) benefits by defendant
after they were involved in automobile accidents because they
purchased insurance policies with an $8,000 PIP deductible.
Plaintiffs have brought suit against Progressive, contending that
they only purchased policies with a deductible because of
defendant's unfair and deceptive practices. The complaint alleges
violations of Mass. Gen. Laws chapters 93A, 176D, and 175.
Jurisdiction is based on diversity of citizenship.
The Defendant filed two motions for summary judgment: one against
plaintiffs who purchased their insurance by telephone and one
against plaintiffs who purchased their insurance through
defendant's website.
District Judge F. Dennis Saylor, IV, on October 20, 2014, granted
the motion for summary judgment against the telephone plaintiffs,
and granted in part and denied in part the motion for summary
judgment against the website plaintiffs.
"Defendant's motion for summary judgment is granted as to the
claims of plaintiffs based on telephone transactions; is granted
as to Counts 2 through 6; and otherwise denied," Judge Saylor
held.
Count 1 alleges a claim for unfair or deceptive business practices
in violation of Mass. Gen. Laws ch. 93A, Section 2. Counts 2
through 5 allege claims for unfair or deceptive business practices
in violation of four subsections of Mass. Gen. Laws ch. 176D,
Section 3. Count 6 alleges a claim for unfair or deceptive
business practices in violation of Mass. Gen. Laws ch. 175,
Section 181.
Progressive Direct Insurance Company, Defendant, represented by A.
Hugh Scott -- hscott@choate.com -- Choate, Hall & Stewart & Peter
B. Moores.
RED BULL: Class Action Settlement Raises "Ascertainability" Issue
-----------------------------------------------------------------
Michelle Gillette, Esq. and Joshua Foust, Esq. of Mintz, Levin,
Cohn, Ferris, Glovsky and Popeo, P.C., in an article for The
National Law Review, report that a recent class action settlement
has brought fresh attention to two age-old questions. The first:
does Red Bull actually give you wings? The second: how carefully
should courts screen out bogus claimants from proposed classes of
refund-seeking consumers?
Earlier this month, a federal court in Manhattan conditionally
approved a settlement in two related class actions brought against
Red Bull North America and Red Bull GmbH, makers of the eponymous
-- and ubiquitous-energy drink. The class actions allege that Red
Bull falsely advertised the energy benefits of its products
through advertising claims such as the slogan "Red Bull Gives You
Wings."
According to the plaintiffs, Red Bull's advertisements violate a
panoply of state consumer protection statutes by touting its
effects on "performance, concentration and reaction speed" without
any scientific support that its ingredients provide "any more
benefit to consumers than a caffeine tablet or cup of coffee."
Red Bull consumers have suffered harm, they claim, by paying a
higher price for Red Bull products instead of "simpler and less
expensive caffeine-only products."
Red Bull has agreed to settle these twin suits by creating a
settlement fund that will pay a $10 refund (or Red Bull products
up to the value of $15) to any purchaser who files a valid claim.
All a Red Bull consumer needs to do is (a) mail in a signed, dated
claim form listing her name and address and confirming that she
purchased at least one Red Bull product since 2002, or (b) submit
an online claim form with the same information -- no receipts or
other proof of purchase required.
The catch, at least for Red Bull drinkers, is that the size of the
settlement fund ($13 million) is set in stone, irrespective of how
many class members apply for a refund. If fewer purchasers than
expected claim their refund, each may receive more than the
allotted $10; but if too many submit claims, each will have his
refund "reduced proportionately" to ensure there is enough of the
finite settlement pool to go around. The number of claimants to
date is not public, but media reports indicate that the claims
website crashed under a deluge of hits soon after the settlement
was announced.
At first glance, the benefits of the settlement for each side seem
obvious. For the plaintiffs' counsel, the settlement ensures a
return on what was likely to be a challenging lawsuit full of
thorny issues. Red Bull, for its part, made the business decision
to obtain a settlement that admits no wrongdoing and is not
binding in other cases.
As the shrinking refund in the Red Bull settlement illustrates,
though, the question can be much more complicated for actual
members of the class. The reason: what many courts have come to
call the "ascertainability" problem. And it's an issue that any
manufacturer or retailer in the consumer products space should be
aware of.
Simply put, "ascertainability" boils down to one question that
courts must answer before approving a class: have the plaintiffs'
lawyers put forth a set of objective, reliable criteria -- a
checklist, so to speak -- that the court can use to ascertain who
is, and who is not, a qualifying class member? Consumer products
companies have likely encountered a version of this problem in
administering product recalls and refunds: with a finite budget
allocated for such programs, how does a company ensure that only
bona fide buyers are taking advantage of the refunds offered to
incentivize returns and implement a recall?
Both legally and practically speaking, this issue is deceptively
complex, and federal courts have reached strikingly different
stances on the question. Some have found that prospective class
members need simply "self-identify" by submitting a sworn
statement confirming they purchased one of the products at
Issue -- at least in class actions involving inexpensive consumer
products. Their reasoning: since purchasers so rarely retain
receipts for inexpensive products like Red Bull, a higher bar to
membership would have the practical effect of making such class
actions unfeasible.
But others have taken a stricter approach to ascertainability, and
one key reason is exactly the danger posed by the Red Bull
settlement -- dilution of each member's recovery due to unverified
claims:
Under no circumstances . . . will [the defendant] pay any amount
other than $1[3] million, even if a significant number of
inaccurate claims are submitted and paid out. For example, if
claims are made for more than $1[3] million, and inaccurate or
false claims cannot be screened out, claimants will simply receive
less than they are entitled to. . . . It is unfair to absent class
members if there is a significant likelihood their recovery will
be diluted by fraudulent or inaccurate claims. In this case,
. . . there is the possibility that [the plaintiff's] proposed
method for ascertaining the class via [self-identification] will
dilute the recovery of true class members.
That's how the Third Circuit explained the problem in Carrera v.
Bayer, a seminal decision from 2013 that has divided other
circuits. While Carrera may be destined for Supreme Court review,
even its tougher critics have begun to take a firmer stance on
verifying class membership. Just this July, for example, the
Ninth Circuit upheld a denial of class certification because the
proposed class relied on self-identification and was not
ascertainable.
Ascertainability rarely becomes a major issue in class actions
that settle, as opposed to those heading to trial, because it is
inherently easier for courts to manage the former. In either
context, though, the dilution problem should give defendants more
ammunition for contesting class proposals with weak mechanisms for
screening out false claims -- especially when extremely popular or
visible consumer products like Red Bull are involved. And despite
the preliminary approval of the Red Bull settlement, look for the
court to revisit its decision at the final approval hearing in May
2015 if claimants find their promised refunds have mysteriously
taken flight.
RETROPHIN INC: Sued in S.D.N.Y. Over Misleading Financial Reports
-----------------------------------------------------------------
Grachya Kazanchyan, individually and on behalf of all others
similarly situated v. Retrophin, Inc., Martin Shkreli, Marc L.
Panoff, and Jeffrey Paley, Case No. 1:14-cv-08376 (S.D.N.Y.,
October 20, 2014), alleges that the Defendants made false and
misleading statements, and failed to disclose material adverse
facts about the Company's business, operations, prospects and
performance.
The Defendants own and operate a biopharmaceutical company, which
focuses on the development, acquisition, and commercialization of
therapies for the treatment of serious, catastrophic, or rare
diseases.
The Plaintiff is represented by:
Jeremy A. Lieberman, Esq.
Francis P. McConville, Esq.
600 Third Avenue, 20th Floor
New York, NY 10016
Telephone: (212)661-1100
Facsimile: (212)661-8665
Email: jalieberman@pomlaw.com
fmcconville@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
REXALL SUNDOWN: Falsely Marketed Biloba Products, Suit Claims
-------------------------------------------------------------
Paige Petkevicius, on behalf of herself and all others similarly
situated v. Rexall Sundown, Inc., a Florida Corporation and Does
1-20, Case No. 3:14-cv-02482 (S.D. Cal., October 17, 2014), arises
out of the Defendant's deceptive advertising and false claims
regarding the efficacy of its Ginkgo Biloba products.
Rexall Sundown, Inc. distributes, markets and sells Sundown
Naturals Ginkgo Biloba 60 mg Standard Extract, a line of ginkgo
biloba-based supplements that purportedly provide a variety of
health benefits centered around improving mild memory problems and
supporting healthy brain function.
The Plaintiff is represented by:
Todd D. Carpenter, Esq.
CARPENTER LAW GROUP
402 West Broadway, 29th Floor
San Diego, CA 92101
Telephone: (619) 756-6994
Facsimile: (619) 756-6991
E-mail: todd@carpenterlawyers.com
- and -
James R. Patterson, Esq.
PATTERSON LAW GROUP
402 West Broadway, 29th Floor
San Diego, CA 92101
Telephone: (619) 756-6990
Facsimile: (619) 756-6991
E-mail: jim@pattersonlawgroup.com
ROYAL CARIBBEAN: SC Denied Request to Review Arbitration Order
--------------------------------------------------------------
Royal Caribbean Cruises Ltd. said in its Form 10-Q Report filed
with the Securities and Exchange Commission on October 23, 2014,
for the quarterly period ended September 30, 2014, that the United
States Supreme Court has denied the class action plaintiffs'
request to review the order compelling arbitration.
A class action complaint was filed in June 2011 against Royal
Caribbean Cruises Ltd. in the United States District Court for the
Southern District of Florida on behalf of a purported class of
stateroom attendants employed onboard Royal Caribbean
International cruise vessels. The complaint alleged that the
stateroom attendants were required to pay other crew members to
help with their duties and that certain stateroom attendants were
required to work back of house assignments without the ability to
earn gratuities, in each case in violation of the U.S. Seaman's
Wage Act.
The Company said, "In May 2012, the district court granted our
motion to dismiss the complaint on the basis that the applicable
collective bargaining agreement requires any such claims to be
arbitrated. The United States Court of Appeals, 11th Circuit,
affirmed the district court's dismissal and denied the plaintiffs'
petition for re-hearing and re-hearing en banc. In October 2014,
the United States Supreme Court denied the plaintiffs' request to
review the order compelling arbitration."
"Shortly thereafter, in excess of 450 crew members submitted
demands for arbitration. The demands make substantially the same
allegations as in the federal court complaint and are similarly
seeking damages, wage penalties and interest in an indeterminate
amount. Unlike the federal court complaint, the demands for
arbitration are being brought individually by each of the crew
members and not on behalf of a purported class of stateroom
attendants. At this time, we are unable to estimate the possible
impact of this matter on us. However, we believe the underlying
claims made against us are without merit, and we intend to
vigorously defend ourselves against them."
RUSSELL E. BURKETT: Chesapeake's Motions to Vacate Rulings Denied
-----------------------------------------------------------------
In CHESAPEAKE APPALACHIA, LLC, Plaintiff, v. RUSSELL E. BURKETT
and GAYLE BURKETT, Defendants, CIVIL ACTION NO. 3:13-3073, (M.D.
Penn.), pending before the court were: (1) Chesapeake's motion to
vacate an order of the American Arbitration Association, (AAA),
panel dated January 28, 2014, finding that the panel had the
authority to decide in the first instance whether the action can
proceed as a class arbitration; and (2) Chesapeake's motion to
vacate an order of the AAA panel dated September 11, 2014, finding
again that the panel had the authority to determine class
arbitrability in the first instance and that the arbitration
clause at issue did not preclude arbitration from proceeding on a
class basis.
The Burketts filed their putative class arbitration before the AAA
on April 1, 2013, asserting claims arising from Chesapeake's
royalty payments to Pennsylvania landowners who had leased their
oil and gas rights to Chesapeake. The issue arose as to who must
decide class arbitrability, the court or the AAA panel. The
Burketts argued that the matter should be decided by the AAA
panel. Chesapeake argued that the court, not an arbitrator,
should decide the issue of class arbitrability and, as such, the
Burketts should not be allowed to proceed with their arbitration
on a class basis.
In a memorandum entered October 17, 2014, a copy of which is
available at http://is.gd/ul2yq3from Leagle.com, District Judge
Malachy E. Mannion denied Chesapeake's motions saying the court
cannot find that the AAA panel exceeded its authority. The panel
considered the language of the arbitration clause at issue and
relied upon basic contract interpretation principles in coming to
its conclusion, he added.
Gayle Burkett, Defendant, represented by Francis P. Karam --
frank@fkaramlaw.com -- Frances P. Karam, Esq. PC, Rachel Schulman,
Rachel Schulman, Esq. PLLC, Douglas A. Clark & Gerard M. Karam,
Mazzoni and Karam.
SHAC LLC: Court Tosses Bid to Dismiss "Luna" TCPA Class Action
--------------------------------------------------------------
Magistrate Judge Howard R. Lloyd denied a motion to dismiss a
first amended complaint in JOHN LUNA, Plaintiff, v. SHAC, LLC, dba
SAPPHIRE GENTLEMEN'S CLUB; et al., Defendants, NO. C14-00607 HRL,
(N.D. Cal.). The First Amended Complaint asserts one claim
against all Defendants: violation of the Telephone Consumer
Protection Act (TCPA).
This action was filed in February 2014. CallFire filed a motion
to dismiss on September 11, 2014.
A copy of the October 17, 2014 ruling is available at
http://is.gd/tIGLu5from Leagle.com.
CallFire, Inc., Defendant, represented by Imran A. Khaliq --
imran.khaliq@arentfox.com -- Arent Fox LLP & Michael Brian Hazzard
-- michael.hazzard@arentfox.com -- Arent Fox LLP.
SMARTHEAT INC: Had Difficulty Retaining CFO Due to Class Action
---------------------------------------------------------------
SmartHeat Inc. said in its Form 10-K/A (Amendment No. 1) Report
filed with the Securities and Exchange Commission on October 24,
2014, for the fiscal year ended December 31, 2013, that the
Company has had difficulty in retaining a suitable replacement for
Michael Wilhelm due to a class action lawsuit.
On February 23, 2013, Michael Wilhelm resigned from his position
as our Chief Financial Officer due to being "named personally in a
groundless shareholder suit, where the alleged (unproven) actions
in question are alleged to have taken place long before his
involvement with the company." Mr. Wilhelm was added as a
defendant to the class action lawsuit filed against the Company,
its directors, and certain of its former officers, originally
captioned Steven Leshinsky v. James Wang, et. al, now captioned
Stream Sicav, Dharanedra Rai et al. v. James Jun Wang, Smartheat
Inc. et al., in an amended complaint filed by the Rosen Law Firm
on January 28, 2012.
In the interim, and so as to have a principal accounting officer
that could sign the certifications under Sections 302(a) and 906
of the Sarbanes Oxley Act of 2002 necessary to complete and file
this Annual Report on Form 10K, the Company appointed Yangkai Wang
as our Acting Chief Accountant on June 7, 2013. While Mr. Yingkai
Wang has served as a financial manager to its subsidiaries since
2007, he has limited relevant education and training in U.S. GAAP
and related SEC rules and regulations.
SmartHeat is a U.S. holding company with no material assets other
than the ownership interests of its foreign subsidiaries that
design, manufacture and sell PHEs and related systems in the
People's Republic of China ("PRC") and Germany. A PHE is a device
that transfers heat from one fluid to another fluid across large
metal plates. PHE products are used in the industrial, residential
and commercial sectors to make energy use more efficient and to
reduce pollution by reducing the need for coal fired boilers.
SMARTHEAT INC: To Vigorously Defend Against "Leshinsky" Suit
------------------------------------------------------------
A putative class action lawsuit, Steven Leshinsky v. James Wang,
et. al., which purported to allege federal securities law claims
against SmartHeat Inc. and certain of its former offers and
directors, was filed on August 31, 2012, in the United States
District Court for the Southern District of New York. Thereafter,
two plaintiffs filed competing motions to be appointed lead
plaintiff in the proceeding.
A lead plaintiff was appointed and an amended complaint was filed
on January 28, 2013, by the Rosen Law Firm. The amended complaint
included Oliver Bialowons, the Company's President, and Michael
Wilhelm, the Company's former Chief Financial Officer, as
defendants in the proceeding though they were not officers of the
Company during the alleged class period.
A second amended complaint was filed on April 8, 2013, under the
caption Stream Sicav, Dharanendra Rai et al. v. James Jun Wang ,
Smartheat, Inc. et al., removing Messrs. Wilhelm and Bialowons as
defendants. The second amended complaint alleges two counts
against the Company, both for violations of the federal securities
laws arising from alleged insider sales or management sales of
securities and alleged false disclosures relating to those sales.
On May 8, 2013, the Company filed a motion to dismiss the second
amended complaint on the grounds that the plaintiffs did not, in
fact, allege that a member of the senior management team had sold
their shares. The motion to dismiss was subsequently denied and
the court set a discovery and class briefing schedule.
On March 17, 2014, the court denied the lead plaintiff's motion
for class certification, without prejudice to move again for such
certification pending (1) the resolution of Halliburton Co. v.
Erica P. John Fund, Inc., No. 13-317 (U.S. 2014) by the Supreme
Court of the United States regarding the viability of the
efficient market theory andthe plaintiffs' claim that reliance,
and therefore injury, can be determined on a classwide basis and
(2) defendants' compliance with their discovery obligations.
"In the event the motion to dismiss is not successful, we intend
to vigorously defend this action, as we believe the allegations
against us are without merit," SmartHeat said in its Form 10-K/A
(Amendment No. 1) Report filed with the Securities and Exchange
Commission on October 24, 2014, for the fiscal year ended December
31, 2013.
SmartHeat is a U.S. holding company with no material assets other
than the ownership interests of its foreign subsidiaries that
design, manufacture and sell PHEs and related systems in the
People's Republic of China ("PRC") and Germany. A PHE is a device
that transfers heat from one fluid to another fluid across large
metal plates. PHE products are used in the industrial, residential
and commercial sectors to make energy use more efficient and to
reduce pollution by reducing the need for coal fired boilers.
SMURFIT-STONE CONTAINER: Mehtas' Claim vs. Rock-Tenn Sub Survives
-----------------------------------------------------------------
Ram Mehta and Neena Mehta owned common stock of Smurfit-Stone
Container Corporation. In their lawsuit captioned RAM MEHTA AND
NEENA MEHTA, Plaintiffs, v. SMURFIT-STONE CONTAINER CORPORATION,
AND ITS OFFICIALS, ROCK-TENN COMPANY, AND ITS OFFICIALS,
Defendants, C.A. NO. 6891-VCL, they challenge (i) decisions
leading up to the Company's bankruptcy, along with steps taken in
connection with its exit from bankruptcy, (ii) the Company's
subsequent merger with and into Rock-Tenn CP, LLC, a wholly owned
acquisition subsidiary of Rock-Tenn Company, and (iii) Rock-Tenn
Sub's failure to provide them with the merger consideration after
their demand for appraisal lapsed. The defendants moved to dismiss
the complaint for failure to state a claim on which relief can be
granted.
In a memorandum opinion dated October 20, 2014, the Honorable J.
Travis Laster, Vice Chancellor of the Court of Chancery of
Delaware, ruled that the challenges to the stock distribution and
the merger are dismissed, but a claim against Rock-Tenn Sub for
failing to provide the Mehtas with their share of the merger
consideration survives.
"Except for the claim for non-payment of merger consideration,
this action is dismissed," ruled Vice Chancellor Laster. A copy
of the ruling is available at http://is.gd/SRb6Qpfrom Leagle.com.
William M. Lafferty -- wlafferty@mnat.com -- MORRIS, NICHOLS,
ARSHT & TUNNELL LLP, Wilmington, Delaware; Attorneys for
Defendants.
SOUTH AFRICA: George Dickerson School Gets Reimbursement
--------------------------------------------------------
Nolubabalo Yantolo and Sibonelo Gamnca, writing for Grocott's
Mail, report that relief has come to George Dickerson Primary
School, which was reimbursed about R80 000 through the class
action suit led by Grahamstowns' Legal Resource Centre.
Principal Melville Meiring told Grocott's Mail that the education
department had paid back the money to the school, which had been
paying teachers out of its own pockets. The ongoing class action
came to a head Oct. 1 when seven luxury cars used by Basic
Education Minister Angie Motshekga, her director general and staff
were attached.
This came after the LRC sent writs of execution to the sheriffs of
the courts in King William's Town and Pretoria in a bid to secure
the teachers' salaries on behalf of 32 Eastern Cape schools that
were owed more than R28 million.
The Department of Basic Education failed to implement a court
order made in March in favor of the 32 schools that had been
promised 132 teachers and reimbursement of the costs of hiring
temporary staff.
There are thousands of vacant teaching posts in the Eastern Cape,
which last year recorded the lowest matric pass rate in the
country, at 64.9%.
LRC representative Sarah Sephton told Grocott's Mail that
according to the state liability act the consensus is that if the
department does not pay the debt the schools are allowed to attach
state assets to satisfy their debts.
The LRC is expected to appear in the Grahamstown High Court 30
October on behalf of the schools that have filed a contempt of
court order against over the failure to pay up in the time period
stipulated in the Collective Agreement No 1 of 2014.
This sees the department collaborating with teachers unions
working towards appointing temporary teachers to vacant posts.
Its purpose is to provide a procedure for the permanent
appointment of temporary educators in vacant substantive posts.
To date, 30 schools have been reimbursed.
The LRC said it will only release the attached assets once the
other two schools have been paid.
SYNGENTA CROP: Faces "McCorkle" Suit Damages Caused by Corn
-----------------------------------------------------------
Vance McCorkle, individually and on behalf of a Class of all
others similarly situated v. Syngenta Crop Protection, LLC,
Syngenta Corporation, and Syngenta Seeds, Inc., Case No. 4:14-cv-
00263 (M.D. Ga., 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
- and -
J. Benjamin Finley, Esq.
R. Walker Garrett, Esq.
THE FINLEY FIRM, P.C.
200 13th Street
Columbus, GA 31901
Telephone: (706) 322-6226
E-mail: bfinley@thefinleyfirm.com
SYNGENTA CROP: Faces "Nixon" Suit Over Damages Caused by Corn
-------------------------------------------------------------
Paul Nixon, individually and on behalf of a Class of all others
similarly situated v. Syngenta Crop Protection, LLC, Syngenta
Corporation, and Syngenta Seeds, Inc., Case No. 1:14-cv-00397
(S.D. Miss., October 20, 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 Ashley Shaul, Esq.
BEASLEY, ALLEN, CROW, METHVIN, PORTIS & MILES, P.C.
P. O. Box 4160
Montgomery, AL 36103-4160
Telephone: (334) 269-2343
Facsimile: (334) 954-7555
E-mail: roman.shaul@beasleyallen.com
TRANS UNION: Court Denies Bid to Narrow Claims in "Dennis" Suit
---------------------------------------------------------------
District Judge Ronald Buckwalter denied defendant's motion to
dismiss count one of the complaint captioned DEIDRE L. DENNIS, on
behalf of herself and all others similarly situated, Plaintiff, v.
TRANS UNION, LLC Defendant, CIVIL ACTION NO. 14-2865, (E.D.
Penn.).
Trans Union is a consumer reporting agency which, for several
years, obtained its public records information about bankruptcies,
civil judgments, and tax liens from LexisNexis Risk & Information
Analytics Group, Inc., First Advantage Corporation, a Symphony
Technology Group Company, and/or other private business known as
"vendors," which furnish such information to national Credit
Reporting Agencies.
Count One of the complaint alleges that Defendant is liable to
Plaintiff for failure to accurately and completely disclose the
true source of its public records information about her in her
consumer file disclosure, in violation of 15 U.S.C. Section
1681g(a)(2).
In his memorandum entered October 20, 2014, Judge Buckwalter found
that the Plaintiff has set forth a viable claim for willful
violation of section 1681g(a)(2). "As such, Defendant's Motion to
Dismiss Count One of Plaintiff's Complaint will be denied and
Defendant shall be required to file an Answer to the Complaint
within twenty days," he added. A copy of the ruling is available
at http://is.gd/FSt4Frfrom Leagle.com.
TRANS UNION, LLC, Defendant, represented by ALISA M. TAORMINA --
ataormina@stroock.com -- STROOCK & STROOCK & LAVAN LLP, ANDREW M.
LEHMANN -- alehmann@schuckitlaw.com -- SCHUCKIT & ASSOCIATES PC,
BRIAN C. FRONTINO -- bfrontino@stroock.com -- STROOCK & STROOCK &
LAVAN LLP, CAMILLE R. NICODEMUS -- cnicodemus@schuckitlaw.com --
SCHUCKIT & ASSOCIATES PC, ROBERT J. SCHUCKIT --
rschuckit@schuckitlaw.com -- SCHUCKIT & ASSOCIATES PC, STEPHEN J.
NEWMAN -- snewman@stroock.com -- STROOCK STROOCK & LAVAN LLP,
WILLIAM R. BROWN -- wbrown@schuckitlaw.com -- SCHUCKIT &
ASSOCIATES PC, CASEY GREEN -- cg@greatlawyers.com -- SIDKOFF,
PINCUS & GREEN, P.C. & WADE D. ALBERT -- walbert@greatlawyers.com
-- SIDKOFF PINCUS & GREEN PC.
TRUMP MODEL: Model Files Class Action Over Salary
-------------------------------------------------
Barbara Ross and Larry McShane, writing for New York Daily News,
report that Alexis Palmer, a model, filed a class action against
Trump Model Management. Ms. Palmer claims she was promised a
$75,000 annual salary by Trump Model Management -- but received
just $3,380.75 for 21 modeling gigs between January 2011 and
December 2013.
Trump Model Management was founded in 1999 by billionaire Donald
Trump.
According to the Manhattan Federal Court papers, TMM took a 20%
cut of her modeling income as an agency fee and saddled Ms. Palmer
with a variety of "obscure expenses" that ate up the rest of her
money.
TMM was founded in 1999 by billionaire Donald Trump, and a lawyer
for the mogul predicted the case would be dismissed.
The agency sent Ms. Palmer to a dermatologist and to take walking
lessons, while deducting expenses both small (postage fees) and
grand (limousine rides), the papers charged. But Trump attorney
Alan Garten said the facts in the lawsuit were more than a little
airbrushed.
"The complaint is bogus and completely frivolous," he said.
USAA LIFE: "Saunders" Case Transferred to W.D. Texas Court
----------------------------------------------------------
District Judge Edward J. Davila granted USAA Life Insurance
Company's motion to transfer the case captioned RICHARD SAUNDERS,
et al., Plaintiffs, v. USAA LIFE INSURANCE COMPANY, Defendant,
CASE NO. 5:14-CV-01868 EJD, (N.D. Cal.) to the U.S. District Court
for the Western District of Texas, San Antonio Division.
"On balance, the convenience and fairness considerations
applicable to an analysis under [28 U.S.C. 1404(a)] weigh in favor
of transferring this action to Texas," ruled Judge Davila on
October 17, 2014. A copy of the ruling is available at
http://is.gd/Ox66Kffrom Leagle.com. The Court ordered the Clerk
to transfer the case and close the file.
USAA Life Insurance Company, Defendant, represented by Carol Lynn
Thompson -- cthompson@sidley.com -- Sidley Austin LLP, Eric
Stephen Mattson -- emattson@sidley.com -- Sidley Austin LLP, Joel
Steven Feldman -- jfeldman@sidley.com -- Sidley Austin LLP,
Michael Douglas Mulvaney -- mmulvaney@maynardcooper.com -- Maynard
Cooper and Gale & Thomas Julian Butler -- tbutler@wdklaw.com --
Whatley Drake & Kallas LLC.
VALDEZ AND TEPI: "Rosas" Suit Seeks to Recover Unpaid Overtime
--------------------------------------------------------------
Benito Tepi Rosas, on behalf of himself and all others similarly
situated v. Valdez and Tepi, Inc. d/b/a La Nortena Bar &
Restaurant, Isauro Valdez, Yolanda Valdez, and Braulio Valdez,
Case No. 1:14-cv-06119 (E.D.N.Y., October 20, 2014), seeks to
recover unpaid overtime wages.
The Defendants own and operate an authentic Mexican cuisine bar
and restaurant located at 102-14 Roosevelt Ave., Corona, NY 11368.
The Plaintiff is represented by:
Brian Scott Schaffer, Esq.
FITAPELLI & SCHAFFER LLP
475 Park Avenue South, 12th Floor
New York, NY 10016
Telephone: (212) 300-0375
Facsimile: (212) 564-5468
E-mail: bschaffer@fslawfirm.com
WAL-MART STORES: Drivers File Suit Over Alleged Wage-Theft
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Pablo Lopez, writing for The Fresno Bee, reports that a small
Fresno law firm is taking on Wal-Mart, accusing the retail giant
of chiseling its drivers in a wage-theft case that will affect
hundreds of truckers in the Valley and elsewhere.
"What Wal-Mart is doing is basically stealing," says Fresno
attorney Nicholas "Butch" Wagner, who won a federal court ruling
last month that allows his firm to represent more than 800 Walmart
drivers -- past and present -- throughout California.
The legal fight won't be easy.
Wagner, Jones, Kopfman & Artenian has eight lawyers. Wal-Mart has
hired Gibson Dunn & Crutcher, which has more than 1,100 attorneys
working in 18 offices worldwide, including Hong Kong, London,
Brussels and New York. The firm's Los Angeles office, which was
founded in 1890, is handling the Wal-Mart litigation against
Wagner's firm.
Wal-Mart has California distribution centers in Porterville, Apple
Valley and Red Bluff.
The lawsuit accuses Wal-Mart of violating a number of California
labor laws, including failing to pay its drivers minimum wage and
failing to give them meal and rest breaks. Wal-Mart contends in
court papers that its truck drivers are well-paid and even get
paid when they sleep in their cabs.
Mr. Wagner says Wal-Mart truckers are employees of the company who
get paid by the mile. It can add up to about $80,000 or more a
year because Wal-Mart drivers are on the road so much, Mr. Wagner
says -- good money, but not all that they're owed, he says. They
don't get paid for waiting in line to load or unload their cargo.
They also don't get paid for the time spent filling out mandated
federal Department of Transportation trip slips or for washing and
fueling their trucks, he says.
"In other states, Wal-Mart can get away with this," Mr. Wagner
says. "But in California, the laws are strict."
In general, Mr. Wagner says, "the law states that a truck driver
must be paid for all of the duties performed to get the job done."
He lists time spent doing pre- and post-trip inspections,
completing mandatory paperwork, washing the truck, fueling the
truck and waiting at the weigh scales.
Mr. Wagner says these unpaid duties, when applied to an entire
group of drivers over a period of years, can add up to millions of
dollars for Walmart. In his calculation of the case, Wagner
contends Wal-Mart has stiffed its drivers for about $140 million
in the past 10 years.
"Simply put, it's called wage theft," he says. Mr. Wagner says
Wal-Mart is in the minority: Most trucking companies pay their
employees by the hour.
Wal-Mart picked the U.S. District Court in the Northern District
of California in San Francisco to settle the civil dispute. In a
Sept. 10 ruling, Judge Susan Illston certified the class-action
case. But Judge Illston says it will be up to a jury to determine
whether Wal-Mart violated the law and whether its drivers are
entitled to payment of at least minimum wage for all hours worked
and damages.
Wal-Mart spokesman Randy Hargrove said on Oct. 17 the mega-
retailer disagrees with Judge Illston's ruling.
"We plan to fully contest that Wal-Mart drivers have not been paid
at least a minimum wage," Mr. Hargrove said. "Wal-Mart is a great
place to work as demonstrated by the fact that our drivers'
average time with the company exceeds 12 years. We are proud that
our drivers are among the highest paid in the industry, earning,
on average, between $80,000 to over $100,000 per year."
Professor finds case quite interesting
Catherine Fisk, a law professor at the University of California at
Irvine, says that while she's not familiar with the lawsuit, she
finds some issues in the case quite interesting. She says paying
truckers by the mile is similar to the age-old American concept of
"piecework pay," where garment workers get paid by the item they
make and farm workers are paid by the amount of crops they pick.
"The motivation was to create efficiency, and prevent slacking,
which I s good," she says.
But she says that system can't really evaluate whether a trucker
is efficient. What happens if one truck driver gets a short route
with lots of traffic and another driver gets a long haul on an
open road? It would be hard to find out which trucker is more
productive, she says.
Worse, she says, it could be a recipe for trouble.
"It could create an incentive for them to speed and drive long
hours, which would put the public at risk." It could also could
contribute to pollution and traffic congestion, the professor
says.
"I don't know why Wal-Mart would do it this way," she says.
In its argument, Wal-Mart contends the extra duties truckers
perform are "included as part of the driver's trip pay," court
records say. Wal-Mart also says class-action certification
wouldn't be fair to the retailer: "The plaintiffs' questions are
not capable of classwide resolution because the question of
whether drivers were paid for various tasks required individualize
inquiries." The Arkansas-based corporation also contends its
truckers "have sufficient monetary incentive to pursue their own
claims."
In addition, Wal-Mart says it pays its drivers $42 to remain in
the cab during the required 10-hour layover period.
Mr. Wagner says Wal-Mart is being disingenuous. "Forty-two
dollars for 10 hours isn't even minimum wage," he says, arguing
that Walmart offers this bonus so truckers can live in their truck
and act as security guards so no one breaks into it.
The California Trucking Association in Sacramento doesn't comment
on legal matters, said communication coordinator Christina
Medders.
Mr. Wagner says Wal-Mart's financial might and its massive legal
teams don't scare his firm, which he says has prevailed in wage-
theft cases against corporate giants including 7 Up, Coca-Cola and
PepsiCo.
In 2006, Mr. Wagner jumped into a national controversy when he
accused three telecommunication giants of violating privacy laws
by providing the National Security Agency with customers' phone
records.
"The damages could reach into the billions," he said back then
when he filed a class-action lawsuit against AT&T, BellSouth and
Verizon in Fresno County Superior Court. His case was gutted, he
says, when Congress and the Obama Administration gave immunity to
telecommunication companies that have complied with government
orders to hand over customers' data.
In 2008, Wagner took on the Walmart trucking case. He says it's
far from going to trial because he expects Wal-Mart to appeal
Judge Illston's ruling. Until then, Walmart truck drivers, past
and present, will have to wait.
Ex-trucker's view: 'tough question for lawyers to answer'
Dan Thatcher, one of the lead plaintiffs, says driving for Wal-
Mart "was a good job," noting that some drivers made $90,000 to
$100,000 a year.
Do they deserve more, as the class-action lawsuit suggests?
"That's a tough question for lawyers to answer," Mr. Thatcher
says. "All I know is that I didn't get paid until my tires hit
the road."
Mr. Thatcher, 59, of Modesto, says he began driving trucks at age
18. He worked as a Wal-Mart trucker for about a dozen years
before he retired in 2007.
The frustrating part of the job was waiting to get the truck
loaded and unloaded, he says. "If there was a truck in front of
you it could take hours." He also had to wait at weigh stations
and when he got fuel for the truck. "They never paid me for all
that down time."
Mr. Thatcher says he drove a minimum of 2,850 miles a week and
made about $60,000 a year. But it cam e at a cost -- he often
lived in his truck and was often away from his wife and children.
"I knew the rules going in," he says.
But he also knew if he didn't take the Walmart job there was a
line of truckers ready to take over.
"All I know is I did a lot of things for Walmart," he says. "The
law says I should have been paid for it."
WEATHERFORD INTERNATIONAL: Approval of Settlement Pending
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A final fairness hearing on the motion for approval of a class
action settlement was held on September 15, 2014, and that motion
is pending, Weatherford International public limited company said
in its Form 10-Q Report filed with the Securities and Exchange
Commission on October 24, 2014, for the quarterly period ended
September 30, 2014.
The Company said, "In March 2011, a purported shareholder class
action captioned Dobina v. Weatherford International Ltd., et al.,
No. 1:11-cv-01646-LAK (SDNY), was filed in the U.S. District Court
for the Southern District of New York, following our announcement
on March 1, 2011 of a material weakness in our internal controls
over financial reporting for income taxes, and restatement of our
historical financial statements (the "2011 Class Action"). The
lawsuit alleged violation of the federal securities laws by us and
certain current and former officers. During the three months ended
December 31, 2013, we entered into negotiations to settle the 2011
Class Action. As a result of these negotiations, settlement became
probable and a settlement agreement was signed on January 29,
2014. The settlement agreement was submitted to the court for
approval and notice to the class. A final fairness hearing on the
motion for approval of the settlement was held on September 15,
2014. That motion is pending. The settlement agreement required
payments totaling approximately $53 million which was entirely
funded by our insurers."
Weatherford International provides equipment and services to the
oil and natural gas exploration and production industry, both on
land and offshore, through its two product service line groups:
(1) Formation Evaluation and Well Construction and (2) Completion
and Production, which together comprise a total of 15 service
lines.
WELLS FARGO: W. Stonhaus' Contract Breach Claim Is Time-Barred
--------------------------------------------------------------
A California district court ruled that former Wells Fargo
financial advisor William Stonhaus' eighth claim for relief for
breach of contract is time barred under California Civil Code Sec.
3426.4 because Wells Fargo & Company forfeited his deferred
compensation before September 26, 2009.
The action KENNISON WAKEFIELD, et al., Plaintiffs, v. WELLS FARGO
& COMPANY, et al., Defendants, Case No. C 13-05053 LB, was brought
on behalf of similarly situated Wells Fargo financial advisors in
California and North Dakota. Plaintiffs lost their unvested
deferred compensation from Wells Fargo when they left to work for
competitors. In the lawsuit, Plaintiffs alleged that the
forfeiture of their unvested deferred compensation violation
statutes that prohibit unlawful restraints of competition.
The parties have since them settled their case except for the
issue of when California's four-year statute of limitations for
breach of contract claims begins to run. Wells Fargo contends
that it begins to run when the financial advisor learns of the
forfeiture. Plaintiffs counter that Wells Fargo knew that the
forfeiture provision was illegal and concealed the illegality by
drafting a plan that looked legitimate and by representing that it
was legitimate. They assert that their reasonable reliance on
Wells Fargo's misrepresentations tolled the statute of limitations
until November 2011, when Mr. Wakefield learned from an attorney
who he consulted on a different matter that the forfeiture was
illegal.
Magistrate Judge Laurel Beeler holds that the contract claims
accrued at the time of forfeiture and that California's equitable
tolling and equitable estoppel doctrines do not change this
outcome. The District Court thus grants Wells Fargo's motion for
partial summary judgment.
A copy of Judge Beeler's Oct. 9, 2014 Order is available for free
at http://is.gd/zXCLo4from Leagle.com.
Wells Fargo Advisors Financial Network., L.L.C., Defendant, is
represented by Terry Edward Sanchez, Esq. -- Terry.Sanchez@mto.com
; Malcolm A. Heinicke, Esq., -- Malcolm.Heinicke@mto.com ; and
Marja-Liisa Overbeck, Esq. -- Mari.Overbeck@mto.com -- of Munger,
Tolles & Olson LLP & Puneet Kaur Sandhu of Munger Tolles and
Olson.
WELLS FARGO: Calif. Appeals Court Affirms TRO in "Lofton" Case
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DAWN LOFTON et al., Plaintiffs, v. WELLS FARGO HOME MORTGAGE,
Defendant; DAVID MARK MAXON, Intervener and Respondent; INITIATIVE
LEGAL GROUP, APC, Objector and Appellant, NO. A136626 was brought
on behalf of home mortgage consultants working for Wells Fargo
Home Mortgage seeking damages for unpaid wages. It was filed by
class counsel in 2005. In 2006, Appellant Initiative Legal Group,
APC, (ILG) filed a similar action in the Los Angeles Superior
Court.
The litigation proceeded on different tracks. In the San Francisco
case discovery proceeded apace. In the Los Angeles case, a class
that was originally certified was decertified in 2010, and the
case was broken up into several different lawsuits asserting
identical individual claims on behalf of 600 plaintiffs. But in
one critical respect, the actions were joined as a practical
matter. They were coordinated for mediation of a settlement, and
agreements to resolve all claims were reached before the same
mediator on the same day. A common fund was agreed upon to
resolve the class action and a separate common fund was agreed
upon to resolve the many individual actions filed on behalf of
ILG's clients. At the preliminary approval hearing for the class
action settlement, the court was told that ILG's clients would opt
out of the class action. Moreover, ILG informed the trial judge
who presided over the class action that ILG was concerned that if
the class settlement were approved, its clients would in effect
become represented by class counsel and ILG would be unable to
communicate directly with them about the class action case.
But contrary to the explanation of the settlement that had been
provided to the court, ILG assisted its class member clients in
securing the benefits of the class action settlement rather than
in opting out of the class and thereby seek recompense from the $6
million common fund ILG had obtained. The question thus arises as
to what was the import of the common fund settlement obtained by
ILG if its clients participated in the class settlement?
According to ILG, the settlement was for its attorney fees for
services ILG performed on the aborted class action and the 600
individual cases. ILG explained to its clients that while it
"thought" the $6 million it obtained in settlement represented
attorney fees, it was willing to pay from the settlement $750 to
each plaintiff for a claim it said was arguably not resolved in
the class action. ILG later increased the amount payable to its
clients to $1,750 after intervenor David Maxon objected to ILG's
final proposed allocation of the settlement proceeds.
The trial court in this class action issued a temporary
restraining order requiring ILG to, among other things, deposit
into a secure escrow account under the control and supervision of
the court the settlement proceeds it contends represent attorney
fees for the actions it brought against Wells Fargo on behalf of
its approximately 600 former clients, one of whom is intervenor
David Maxon. ILG argues that the court lacked jurisdiction to
issue the TRO, abused its discretion in issuing the TRO and relied
on inadmissible evidence in issuing the TRO.
The Court of Appeals of California, First District, Division Three
found that the trial court presiding over the class action
properly enjoined ILG from distributing or taking action to
distribute the proceeds of its settlement to itself. It added
that the court presiding over the class action had concurrent
exclusive jurisdiction to consider the propriety of the settlement
of class member claims, even for those class members represented
by ILG on class or related claims. Moreover, the trial court had
a duty to ensure the fees claimed by ILG were reasonable in light
of the overall result ILG achieved. The TRO is, therefore,
affirmed, ruled the Calif. Appeals Court. A copy of the October
22, 2014 ruling is available at http://is.gd/vh75Vzfrom
Leagle.com.
Mark A. Chavez -- mark@chavezgertler.com -- Nance F. Becker --
nance@chavezgertler.com -- CHAVEZ & GERTLER LLP, Richard Zitrin,
ZITRIN LAW OFFICE, David C. Anderson, ANDERSON LAW, Counsel for
Intervener and Respondent.
WELLS FARGO: Sued in N.D. California Over Illegal Debt Inquiry
--------------------------------------------------------------
Sumit Roy, individually and on behalf of all others similarly
situated v. Wells Fargo Bank, N.A., Case No. 4:14-cv-04661 (N.D.
Cal., October 20, 2014), arises out of the Defendant's
unauthorized and unlawful credit inquiry.
Wells Fargo Bank, N.A. is a financial services company that
provides secure online banking, investments, and consumer checking
and savings accounts.
The Plaintiff is represented by:
Abbas Kazerounian, Esq.
Matthew M. Loker, Esq.
KAZEROUNI LAW GROUP, APC
245 Fischer Avenue, Unit D1
Costa Mesa, CA 92626
Telephone: (800) 400-6808
Facsimile: (800) 520-5523
E-mail: ak@kazlg.com
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
- and -
Jose Garay, Esq.
JOSE GARAY, APLC
9861 Irvine Center Drive
Irvine, CA 92618
Telephone: (949) 208-3400
Facsimile: (949) 713-0432
E-mail: jgaray@garaylaw.com
WEST BANCORPORATION: Appeal Should Be Decided in 2015
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West Bank's appeals in a class action lawsuit should be decided
sometime in 2015, West Bancorporation, Inc. said in its Form 10-Q
Report filed with the Securities and Exchange Commission on
October 24, 2014, for the quarterly period ended September 30,
2014.
On September 29, 2010, West Bank was sued in a class action
lawsuit that, as amended, asserts nonsufficient funds fees charged
by West Bank to Iowa resident customers on debit card transactions
are usurious under the Iowa Consumer Credit Code, rather than
allowable fees, and that the sequence in which West Bank formerly
posted debit card transactions for payment violated various
alleged duties of good faith and ordinary care. Plaintiffs are
seeking alternative remedies that include injunctive relief,
damages (including treble damages), punitive damages, refund of
fees and attorney fees. West Bank believes it has substantial
defenses and is vigorously defending the action.
The trial court entered orders on preliminary motions on March 4,
2014. It dismissed one of the Plaintiffs' claims and found that
factual disputes precluded summary judgment in West Bank's favor
on the remaining claims. In addition, the court certified two
classes for further proceedings.
West Bank appealed the adverse rulings. The appeals should be
decided sometime in 2015.
The amount of potential loss, if any, cannot be reasonably
estimated now because of the unresolved legal issues and because,
among other things, the multiple alternative claims involve
different time periods, burdens of proof, defenses and potential
remedies, the Company said.
WORLDGATE GROUP: "Hoyos" Suit Seeks to Recover Unpaid Overtime
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Caroline Hoyos, and other similarly situated individuals v.
Worldgate Group, LLC, a Florida limited liability company, Harlan
Pomeroy, and Gabriel Mersan, individually, Case No. 1:14-cv-23865
(S.D. Fla., October 17, 2014), seeks to recover unpaid overtime
wages under the Fair Labor Standards Act.
Worldgate Group, LLC is a technology consulting firm.
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
YELP INC: Ninth Circuit Affirmed Class Action Dismissal
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Yelp Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 24, 2014, for the quarterly
period ended September 30, 2014, that the Company was sued in
February and March 2010, in two putative class actions on behalf
of local businesses asserting various causes of action based on
claims that the Company manipulated the ratings and reviews on its
platform to coerce local businesses to buy its advertising
products. These cases were subsequently consolidated in an action
asserting claims for violation of the California Business and
Professions Code, extortion and attempted extortion based on the
conduct the plaintiffs allege and seeking monetary relief in an
unspecified amount and injunctive relief. In October 2011, the
court dismissed this consolidated action with prejudice. The
plaintiffs appealed to the U.S. Court of Appeals for the Ninth
Circuit, which affirmed the dismissal of the consolidated action
on September 2, 2014. The plaintiffs have petitioned the Ninth
Circuit for a rehearing. Accordingly, the Company is currently
unable to reasonably estimate either the probability of incurring
a loss or an estimated range of such loss, if any, from this
appeal.
Yelp connects people with great local businesses. Its users have
contributed a total of approximately 66.6 million cumulative
reviews of almost every type of local business, from restaurants,
boutiques and salons to dentists, mechanics, plumbers and more.
These reviews are written by people using Yelp to share their
everyday local business experiences, giving voice to consumers and
bringing "word of mouth" online.
YELP INC: Facing Two Securities Class Action Lawsuits
-----------------------------------------------------
Yelp Inc. said in its Form 10-Q Report filed with the Securities
and Exchange Commission on October 24, 2014, for the quarterly
period ended September 30, 2014, that a putative class action
lawsuit alleging violations of federal securities laws was filed
on August 6, 2014, in the U.S. District Court for the Northern
District of California, naming as defendants the Company and
certain of the Company's officers. An additional lawsuit
containing similar claims was filed in the same court on August
25, 2014. The lawsuits allege violations of the Securities
Exchange Act of 1934, as amended, by the Company and the Company's
officers for making allegedly materially false and misleading
statements regarding the Company's business and operations between
October 29, 2013 and April 3, 2014. The plaintiffs seek
unspecified monetary damages and other relief.
Yelp connects people with great local businesses. Its users have
contributed a total of approximately 66.6 million cumulative
reviews of almost every type of local business, from restaurants,
boutiques and salons to dentists, mechanics, plumbers and more.
These reviews are written by people using Yelp to share their
everyday local business experiences, giving voice to consumers and
bringing "word of mouth" online.
YRC INC: Wins Favorable Ruling in Mitchell's Discrimination Case
----------------------------------------------------------------
Amos Mitchell alleges in his two-count complaint that his former
employer, YRC Inc., violated 42 U.S.C. Section 1981 by terminating
him on the basis of his race, African-American, (Count I) and by
retaliating against him because of his complaints about racial
discrimination (Count II). YRC filed a motion for summary
judgment on both counts. Mitchell also filed a "Motion to Strike
Documents Relied Upon in Defendant's Rule 56.1 Statement of Facts
and Referenced in Defendant's Memorandum in Support of Summary
Judgment."
On October 20, 2014, District Judge James F. Holderman denied in
its entirety Mitchell's motion to strike, and granted YRC's motion
for summary judgment on both Counts I and II of Mitchell's
complaint. Judgment was granted in favor of defendant YRC Inc. on
all of plaintiff Mitchell's claims. The Civil case was
terminated.
A copy of the Court's memorandum opinion and order is available at
http://is.gd/CcUfDjfrom Leagle.com.
The case is AMOS MITCHELL, Plaintiff, v. YRC INC., Defendant, NO.
13 C 2542, (N.D. Ill.).
YRC Inc., a Foreign Corporation, Defendant, represented by Carol
A. Poplawski -- carol.poplawski@ogletreedeakins.com -- Ogletree,
Deakins, Nash, Smoak & Stewart, P.C. & Matthew S. Levine --
matthew.levine@odnss.com -- Ogletree, Deakins, Nash, Smoak &
Stewart, P.C.
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S U B S C R I P T I O N I N F O R M A T I O N
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