/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/141222.mbx C L A S S A C T I O N R E P O R T E R Monday, December 22, 2014, Vol. 16, No. 253 Headlines A & S ENTERTAINMENT: "Masso" Suit Seeks to Recover Unpaid OT AKORN INC: Delaware Court Dismisses HT Merger Class Action AKORN INC: California Court Dismissed "Hoover" Class Action AKORN INC: Settlement in Sinus Buster Action Has Initial OK AMERICAN REALTY: Faces Securities Suit Over Cole Acquisition ANHEUSER-BUSCH INBEV: Overtime Class Action Heads to Arbitration APPLE INC: Decade-Old Antitrust Battle Comes to IPods' Ownership APPLE INC: Last Lead Plaintiff in IPod Antitrust Suit Dismissed APPLE INC: Counsel Says iTunes Antitrust Suit Have Sub Plaintiffs APPLE INC: Plaintiffs Introduce New Class Rep in iPod Suit APPLE INC: Appeals Panel Hear Arguments in E-Book Antitrust Suit B & M GENERAL: Suit Seeks to Recover Unpaid OT Wages & Damages BFC FINANCIAL: Litigation Over BBX Merger Dismissed BFC FINANCIAL: Provides Updates on Bluegreen Shareholder Case BFC FINANCIAL: Provides Updates on BBX Capital Shareholder Suit BFC FINANCIAL: Updates on NJ Tax Sales Certificate Antitrust Suit BOLT TECHNOLOGY: Has MOU to Settle Teledyne Merger Class Suits BUDDY BEE: "Masso" Suit Seeks to Recover Unpaid Overtime Wages CALIFORNIA: Dismissal of Supervisory Engineers' Suit Affirmed CANADA: Loses Bid to Dismiss "60s Scoop" Class Action CHRISTIAN BROTHERS: 2nd Cir. Affirms Dismissal of Slavery Claim COBALT INT'L: Faces Shareholder Class Action Over Alleged Bribery COMCAST CORP: Used Routers for Public Wi-Fi Network, Suit Says COSTCO WHOLESALE: Falsely Marketed TruNature Products, Suit Says CVB FINANCIAL: Appeals Court to Set Oral Argument Within 6-9 Mos. DART CHEROKEE: Obtains Favorable Ruling in Royalties Class Action DIRECT ENERGY: Faces Class Action Over Deceptive Practices DIRECT SOURCE: Has Made Unsolicited Calls, "Pacleb" Suit Claims DOJI INC: Faces "Skiba" Suit Over Failure to Pay Overtime Wages DUCK WALK: Faces "Cardona" Suit Over Failure to Pay OT Wages ELECTRONIC ARTS: Must Pay $4.86-Mil. for Infringing Uniloc Patent ESB FINANCIAL: Faces "Elliott" Suit Over Illegal Sale of Company FACEBOOK INC: Lemberg Law Firm Sues Over Unwanted Text Messages FACEBOOK INC: Attempts to Preserve Rulings in Ad-Click Suits FIRST COMMONWEALTH: Jan. Trial in Market Rate Savings IRA Case FIRST COMMONWEALTH: Discovery Starts Three Class Actions FRANKLIN FINANCIAL: Bank Unit Participating in PLMBS Class Action FOREST OIL: 6 Class Suits Filed in NY Court Over Sabine Merger FOREST OIL: Colorado Court Administratively Closed Class Action FOREST OIL: Date for Oral Arguments Not Yet Set in Appeal GARDEN FRESH: Faces "Lopez" Suit Over Failure to Pay Overtime GENERAL MOTORS: Fla. Court Allows "Carriuolo" Suit to Proceed HHH MOTORS: Appeals Court Affirms Denial of Arbitration HILLMAN GROUP: Faces "Santos" Suit in Cal. Over Violation of ADA HOME DEPOT: Faces First Financial Suit Over Alleged Data Breach HOME DEPOT: Faces Prepaid Technologies Suit Over Data Breach INTEGRITY STAFFING: May Not Pay Time Spent for Security Checks JIDD MOTORS: Faces "Hood" Suit Over Failure to Pay Overtime Wages KATHARYN B. DAVIS: Missouri Court Dismisses "Janson" Suit KEYSTONE MERCY: Court Remands Flash Drive Suit to Trial Court KWLT LLC: Faces "Alvarez" Suit Over Failure to Pay Overtime LAZZARI FUEL: To Pay $4.6-Mil. to Settle Federal Antitrust Suit LVNV FUNDING: Illinois Court Certifies "Casso" Suit MARS INC: Calif. Court Grants Bid to Stay "Gustavson" Suit MID-ATLANTIC HEALTH: Fails to Pay Workers Overtime, Suit Claims MIDAMAR CORP: Sued Over Beef Product False Advertising NACOGDOCHES COUNTY: Faces "Manis" Suit Over Failure to Pay OT NAT'L FOOTBALL: CVS Subpoenaed in Drug Misuse Class Action NEW YORK: NY AG Warns Police on Killing Unarmed Black Man NISSAN NORTH AMERICA: Sued Over Defective Vehicle Transmissions NORTH CAROLINA: Inmate Suit Dismissed for Failure to State Claim OVERSEAS SHIPHOLDING: Securities Class Action Fully Resolved PARTNERS REAL ESTATE: Faces Class Suit in Ontario Superior Court PHOTOMEDEX INC: Mediation Set to Resolve Class Action PHOTOMEDEX INC: Discovery Conducted in LCA-Vision Merger Suits PHOTOMEDEX INC: Mediation Scheduled in D.C. Class Action PHOTOMEDEX INC: Discovery Commenced in Calif. State Court Action PHOTOMEDEX INC: Plaintiffs' Counsel Appeals Israeli Court Ruling POPULAR INC: BPNA Opposes Motion for Leave to Amend Complaint POPULAR INC: Discovery Ongoing in "Quiles" Class Action POPULAR INC: Motion to Transfer "Fernandez" Case Remains Pending POPULAR INC: Settlement in "Alvarez" Case Being Discussed POPULAR INC: Faces "Valle" Class Action Lawsuit PORCAO GRILL: "Pinckney" Suit Seeks to Recover Unpaid Overtime PTZ INSURANCE: Has Made Unsolicited Calls, "Legg" Suit Claims PYOD LLC: Court Grants Stay & Permits Interlocutory Appeal QUALITY RESOURCES: Loses Bid to Dismiss TCPA Class Action REDCO GROUP: Faces "Miller" Suit Over Failure to Pay Overtime RES-CARE INC: Settlement Payments Expected Through Early 2015 RLI INSURANCE: NY Court Affirms "Stecko" Class Certification ROCK CREEK: Trial Date in Class Actions Set in May 2015 ROCK CREEK: Bid to Dismiss Consumer Class Action Under Advisement ROOSEVELT FIESTA: Faces "Saucedo" Suit Over Failure to Pay OT SAKS FIFTH: Sued Over Failure to Properly Display Return Policy SANOFI: Pomerantz LLP Files Securities Class Action in New York SCE GROUP: "Gaskin" Suit Seeks to Recover Unpaid Overtime Wages SILVERCORP METALS: February 9 Settlement Fairness Hearing Set SIRIUS XM: To Pay $3.8-Mil. to Settle Suits Over Subscription SONY PICTURES: Faces "Corona" Suit Over Alleged Data Breach SOUTH STATE: Court Approves Settlement & Dismisses Rational Suit SOUTH STATE: Court Okays Settlement & Dismisses FFHI Litigation SOUTH STATE: Court Okays Deal & Dismisses 2nd Rational Action TAKATA CORP: Faces Defective Airbag Class Action in Canada TOYOTA MOTOR: Bid to Transfer Venue of "Emerson" Suit Granted UNITED STATES: Judge Approves SSA Class Action Settlement UNITEDHEALTH GROUP: Provides Updates on Endoscopy Center Case US POSTAL: Slapped With Interest on Underpaid Life Insurance VISA INC: Sued in Texas by 93 Merchants for Imposing Excess Fees WESTERN POWER: Parkerville Bushfire Victims Mull Class Action WHIRLPOOL CORP: Judge Rejects TCE Class Action Certification WINDERMERE COURT: Settles Apartment Fire Class Action for $4.75MM WINDSOR WINDOW: Faces "Ritchie" Suit Over Defective Windows XL SPECIALITY: CA Seeks Guidance From Georgia Supreme Court YAHOO INC: 9th Cir. Adopts Correction Theory in Securities Suit ZIMMER INC: 5th Cir. Remands Implant Case for Evidentiary Hearing ********* A & S ENTERTAINMENT: "Masso" Suit Seeks to Recover Unpaid OT ------------------------------------------------------------ Karina Masso, and other similarly situated individuals v. A & S Entertainment, LLC d/b/a The Office a/k/a Jim's Catering, Inc., a Florida corporation, and Claudette M. Pierre, Case No. 1:14-cv- 24730 (S.D. Fla., December 15, 2014), seeks to recover unpaid overtime wages and damages in violation of the Fair Labor Standard Act. The Defendants own and operate a catering business in Miami-Dade County, Florida. The Plaintiff is represented by: Ruben Martin Saenz, Esq. SAENZ & ANDERSON, PLLC 20900 N.E. 30th Avenue, Suite 800 Aventura, FL 33180 Telephone: (305) 503-5131 Facsimile: (888) 270-5549 E-mail: msaenz@saenzanderson.com AKORN INC: Delaware Court Dismisses HT Merger Class Action ---------------------------------------------------------- Akorn Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2014, for the quarterly period ended September 30, 2014, that a Delaware court entered judgment, granted final settlement approval, and dismissed the class action related to the Agreement and Plan of Merger (the "HT Merger Agreement") to acquire Hi-Tech Pharmacal Co. On August 27, 2013, the Company entered into the HT Merger Agreement. In connection with the HT Merger Agreement, a putative class action lawsuit was filed in the Court of Chancery of the State of Delaware on August 30, 2013, captioned Karant v. Hi-Tech Pharmacal Co., Inc., et al., C.A. No. 8854-VCP, alleging, among other things, that Hi-Tech and Hi-Tech's board of directors breached their fiduciary duties and that the Company aided and abetted the alleged breaches. The Karant complaint sought, among other things, injunctive relief enjoining the defendants from completing the merger and directing the defendants to account to the plaintiff and the purported class for damages allegedly sustained, and an award of fees, expenses and costs. In addition, a putative class action lawsuit was filed in Suffolk County, New York, captioned Wackstein v. Hi-Tech Pharmacal Co., Inc., et al., Index No. 063450/2013, similarly alleging, among other things, that Hi-Tech and Hi-Tech's board of directors breached their fiduciary duties and that the Company aided and abetted the alleged breaches. The Wackstein complaint sought, among other things, injunctive relief enjoining the defendants from completing the Merger and directing the defendants to account to the plaintiff and the purported class for damages. The defendants entered into a memorandum of understanding with plaintiff's counsel, dated November 26, 2013, in connection with the Karant and Wackstein actions, pursuant to which Hi-Tech, the Company, the other named defendants and Wackstein agreed to dismiss the Wackstein action with prejudice effective with the settlement and dismissal of the Karant lawsuit. On July 30, 2014 the Delaware Court entered judgment, granted final settlement approval, and dismissed the action. Akorn, Inc. and its wholly-owned subsidiaries through its Prescription Pharmaceuticals reportable segment manufactures and markets a full line of diagnostic, therapeutic and disease specific ophthalmic pharmaceuticals, antidotes, anti-allergics, anti-infectives, vaccines, and controlled substances for pain management and anesthesia as well as niche hospital drugs of various dosage forms and injectable pharmaceuticals. Through its Consumer Health reportable segment, the Company manufactures and markets a line of over-the-counter ("OTC") ophthalmic products for the treatment of dry eye under the TheraTears(R) brand name, as well as a portfolio of private label OTC ophthalmic products and other consumer health products. AKORN INC: California Court Dismissed "Hoover" Class Action ----------------------------------------------------------- Akorn Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2014, for the quarterly period ended September 30, 2014, that a California court entered judgment, granted final settlement approval, and dismissed the class action lawsuit by Linda Hoover. On December 12, 2012, plaintiff Linda Hoover, on behalf of herself and all others similarly situated, brought a class action lawsuit against Hi-Tech Pharmacal Co., in the Superior Court for the State of California, which Hi-Tech removed to the U.S. District Court for the Central District of California, Civil Action No. 5:2013- 0097, alleging that Hi-Tech's marketing and sales of its Nasal Ease(R) product is a violation of various state statutes, including the Consumer Legal Remedies Act, California's False Advertising Law and Unlawful, Fraudulent & Unfair Business Practices Act. Hi-Tech answered the complaint on January 14, 2013. The parties have reached a settlement in this action as set forth in the Class Action Settlement Agreement, dated as of August 15, 2013. On April 8, 2014 the Court entered judgment, granted final settlement approval, and dismissed the action. Akorn, Inc. and its wholly-owned subsidiaries, through its Prescription Pharmaceuticals reportable segment manufactures and markets a full line of diagnostic, therapeutic and disease specific ophthalmic pharmaceuticals, antidotes, anti-allergics, anti-infectives, vaccines, and controlled substances for pain management and anesthesia as well as niche hospital drugs of various dosage forms and injectable pharmaceuticals. Through its Consumer Health reportable segment, the Company manufactures and markets a line of over-the-counter ("OTC") ophthalmic products for the treatment of dry eye under the TheraTears(R) brand name, as well as a portfolio of private label OTC ophthalmic products and other consumer health products. AKORN INC: Settlement in Sinus Buster Action Has Initial OK ----------------------------------------------------------- Akorn Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2014, for the quarterly period ended September 30, 2014, that the U.S. District Court for the Eastern District of New York has preliminarily approved a settlement by a revised Order dated February 4, 2014, in the class action lawsuit over the Sinus Buster products. On June 8, 2012, plaintiff Mathew Harrison filed a class action lawsuit, Civil Action No. 12-2897, in the U.S. District Court for the Eastern District of New York, against Wayne Perry, Dynova Laboratories, Inc., Sicap Industries, LLC, Walgreens Co. and Hi- Tech. On May 16, 2012, plaintiff David Delre filed a class action lawsuit, Civil Action No. 12-2429, in the U.S. District Court for the Eastern District of New York, against Wayne Perry, Dynova Laboratories, Inc., Sicap Industries, LLC, and Hi-Tech. Each complaint alleges, among other things, that their Sinus Buster(R) products are improperly marketed, labeled and sold as homeopathic products, and that these allegations support claims of fraud, unjust enrichment, breach of express and implied warranties and alleged violations of various state and federal statutes. Hi-Tech answered the complaints and asserted cross-claims against the other defendants. The Court consolidated these two cases into one action entitled Sinus Buster Products Consumer Litigation. Dynova has filed for bankruptcy. The case has now been settled by Hi-Tech with plaintiffs by Agreement dated December 16, 2013 and the Court has preliminarily approved the settlement by a revised Order dated February 4, 2014. Akorn, Inc. and its wholly-owned subsidiaries, through its Prescription Pharmaceuticals reportable segment manufactures and markets a full line of diagnostic, therapeutic and disease specific ophthalmic pharmaceuticals, antidotes, anti-allergics, anti-infectives, vaccines, and controlled substances for pain management and anesthesia as well as niche hospital drugs of various dosage forms and injectable pharmaceuticals. Through its Consumer Health reportable segment, the Company manufactures and markets a line of over-the-counter ("OTC") ophthalmic products for the treatment of dry eye under the TheraTears(R) brand name, as well as a portfolio of private label OTC ophthalmic products and other consumer health products. AMERICAN REALTY: Faces Securities Suit Over Cole Acquisition ------------------------------------------------------------ Gary Wunsch, Individually on Behalf of Himself and All Others Similarly Situated v. American Realty Capital Properties, Inc., Nicholas S. Schorsch, David S. Kay, Peter M. Budko, Brian S. Block, Lisa E. Beeson, William M. Kahane, Edward M. Weil, Jr., Leslie D. Michelson, Edward G. Rendell and Scott J. Bowman, Case No. 03C14012816 (Md. Cir. Ct., Baltimore Cty., November 25, 2014) seeks to pursue remedies under the Securities Act of 1933. The lawsuit is brought on behalf of all persons, who acquired the common stock of the Company pursuant or traceable to the alleged false and defective Registration Statement issued in connection with the Company's acquisition of Cole Real Estate Investments, Inc. American Realty Capital Properties, Inc., is a Maryland corporation headquartered in New York City. The Company is a self-managed commercial real estate investment trust focused on investing in single tenant freestanding commercial properties subject to net leases with high credit quality tenants. The Individual Defendants are directors and officers of the Company. The Plaintiff is represented by: Patrick C. Smith, Esq. DEHAY & ELLISTON L.L.P. 36 South Charles Street, Suite 1300 Baltimore, MD 21201 Telephone: (410) 783-7019 Facsimile: (410) 783-7221 E-mail: psmith@dehay.com - and - Brian J. Robbins, Esq. Stephen J. Oddo, Esq. Edward B. Gerard, Esq. Justin D. Rieger, Esq. ROBBINS ARROYO LLP 600 B St., Suite 1900 San Diego, CA 92101 Telephone: (619) 525-3990 Facsimile: (800) 350-6003 E-mail: brobbins@robbinsarroyo.com soddo@robbinsarroyo.com egerard@robbinsarroyo.com jrieger@robbinsarroyo.com ANHEUSER-BUSCH INBEV: Overtime Class Action Heads to Arbitration ---------------------------------------------------------------- Angela Mueller, writing for St. Louis Business Journal, reports that a class action lawsuit filed against Anheuser-Busch InBev over allegedly unpaid overtime has been sent to an arbitrator. Two truck drivers filed the class action lawsuit against A-B InBev in California in August, alleging the brewer did not pay them for overtime and denied paid breaks. A California federal judge has ruled that the drivers were bound by an arbitration agreement, despite their claims that they did not receive copies of the agreement in the mail, and has granted A-B InBev's motion to have the suit sent to an arbitrator to decide whether the agreement applies to the plaintiffs, Law360 reports. St. Louis-based Anheuser-Busch is part of Belgium-based Anheuser- Busch InBev, which reported 2013 revenue of US$43.2 billion. APPLE INC: Decade-Old Antitrust Battle Comes to IPods' Ownership ---------------------------------------------------------------- Writing for Courthouse News Service, Arvin Temkar reports that a decade-old antitrust class action against Apple could come down to who actually owns a pair of iPods bought by the lead plaintiff. The lawsuit, filed in 2005, accuses Apple of keeping iPods from playing music purchased from competing music stores through a series of updates to its iTunes platform. At trial, which finally began on the first week of December, Apple defended the updates as necessary to fix flaws and bolster security against hackers. On December 5, Apple filed a motion to dismiss the suit because lead plaintiff Marianna Rosen allegedly did not buy one of the iPod models relevant to the case. Apple said the purchases Rosen claims to have made during the 2006 to 2009 class period were actually made using a credit card belonging to the law firm of Rosen's ex-husband, where Rosen worked for several years. In a response filed Dec. 6, attorneys for Rosen argued that the woman does in fact have title to devices purchased in 2008. "Ms. Rosen paid for the iPods with a credit card that she frequently used during the time for personal purchases," plaintiffs' attorneys said in the response. "The credit card had her name on it and she was authorized to use it for such purchases." Rosen gave one of the devices to her son and kept the other one for her own personal use, the motion stated. And the purchase of a third iPod in 2006 -- within the class period -- further cements Rosen's right to be in the lawsuit, according to the filing. But Apple shot back on December 8 with its own filed response, saying "this $1 billion case is now about one-half of two iPods." "The sole remaining named plaintiff, Marianna Rosen, concedes that this case, in which Ms. Rosen seeks a judgment for more than $1 billion, now turns entirely on her purported marital property interest in two iPods purchased on the corporate credit card of her former husband's law firm," Apple stated. "Whatever Ms. Rosen's motivation or practice, use of the law firm's credit card to make purchases means that the corporation, not Ms. Rosen, was the purchaser of the iPods," the response continued. Previously, attorneys for the class agreed to dismiss Melanie Tucker, the second lead plaintiff, from the case for a similar reason. That move left Rosen as the only person representing an estimated 8 million consumers and 500 businesses. Lawyers briefly discussed the issue with U.S. District Judge Yvonne Gonzalez Rogers this morning, but the judge has not made a decision and allowed the trial to resume. Apple Inc. is represented by: William A. Isaacson, Esq. Karen L. Dunn, Esq. Martha L. Goodman, Esq. BOIES, SCHILLER & FLEXNER LLP 5301 Wisconsin Ave, NW Washington, DC 20015 Telephone: (202) 237-2727 Facsimile: (202) 237-6131 E-mail: wisaacson@bsfllp.com kdunn@bsfllp.com mgoodman@bsfllp.com - and - John F. Cove, Jr., Esq. Kieran P. Ringgenberg, Esq. Meredith R. Dearborn, Esq. Maxwell V. Pritt, Esq. BOIES, SCHILLER & FLEXNER LLP 1999 Harrison Street, Suite 900 Oakland, CA 94612 Telephone: (510) 874-1000 Facsimile: (510) 874-1460 E-mail: jcove@bsfllp.com kringgenberg@bsfllp.com mdearborn@bsfllp.com mpritt@bsfllp.com - and - David C. Kiernan, Esq. JONES DAY 555 California Street, 26th Floor San Francisco, CA 94104 Telephone: (415) 626-3939 Facsimile: (415) 875-5700 E-mail: dkiernan@jonesday.com The case is Apple iPod iTunes Antitrust Litigation, Case No. 4:05- cv-00037-YGR, in the U.S. District Court for the Northern District of California, Oakland Division. APPLE INC: Last Lead Plaintiff in IPod Antitrust Suit Dismissed --------------------------------------------------------------- Arvin Temkar at Courthouse News Service reports that in a ruling late December 8, U.S. District Judge Yvonne Gonzalez Rogers dismissed lead plaintiff Marianna Rosen from the iTunes antitrust case against Apple, according to The Associated Press. The decade-old class action centers around claims that Apple's updates to its iTunes platform kept iPod users from playing music purchased from competing music services. Days into the trial -- which began on the first week of December -- attorneys for the class agreed to dismiss one of the lead plaintiffs from the case, since she did not actually purchase an iPod within the 2006 to 2009 class period. Apple then moved to dismiss Rosen for the same reason. In a response filed over the first weekend of December, class attorneys said Rosen had in fact bought two iPods -- one for herself and one for her son -- using a credit card issued to her ex-husband's law firm, where she worked at the time. Apple responded on December 8 by saying the devices belonged to the law firm and not Rosen. During December 8's proceedings, Rogers ordered Rosens' attorneys to find a new plaintiff by December 9, despite Apple's argument that it's too late to find a new one, the AP said. In court this afternoon plaintiffs' attorney Bonnie Sweeney said her team has received "a number of inquiries" from class members regarding the case, and that attorneys "certainly have another plaintiff." APPLE INC: Counsel Says iTunes Antitrust Suit Have Sub Plaintiffs ----------------------------------------------------------------- Arvin Temkar at Courthouse News Service reports that the two lead plaintiffs in a decade-old antitrust class action against Apple are gone, but class attorneys told a federal judge on December 9 that they have backups. Class attorneys submitted five replacement options for new lead plaintiff last night and early this morning in the antitrust case that accuses Apple of using updates to its iTunes platform to bar iPod users from playing music purchased from competing music services. Days into the trial -- which began on the first week of December -- attorneys for the class agreed to dismiss one of the lead plaintiffs from the case, since she did not actually purchase an iPod within the 2006 to 2009 class period. Apple then moved to dismiss the remaining lead plaintiff, Marianna Rosen, for the same reason. But in a response filed over the weekend, class attorneys said Rosen had in fact bought two iPods -- one for herself and one for her son -- using a credit card issued to her ex-husband's law firm, where she worked at the time. Apple responded on December 8 by saying the devices belonged to the law firm and not Rosen. During December 8's proceedings, U.S. District Judge Yvonne Gonzalez Rogers ordered Rosens' attorneys to find a new plaintiff by December 8, despite Apple's argument that it's too late to find a new one. On December 8, class attorneys informed Rogers of five replacement candidates. "We believe these people will satisfy all the requirements to be adequate class representatives," attorney Patrick Coughlin, of the firm Robbins Gellar Rudman & Dowd, told Rogers in court. But Apple attorney William Isaacson, of the firm Boies, Schiller & Flexner, asked Rogers to dismiss two of the potential replacements because they weren't submitted until this morning. "There's no excuse for this," Isaacson said. Rogers denied the request, but appeared frustrated at the situation. "I will consider the additional two, but it is done," Rogers said. "There is no one else." The trial could be delayed for a few days while attorneys vet the potential plaintiffs. APPLE INC: Plaintiffs Introduce New Class Rep in iPod Suit ---------------------------------------------------------- Marisa Kendall, writing for The Recorder, reports that plaintiffs seemed to salvage their monopoly case against Apple Inc. on Dec. 9 with the introduction of an ice skating class representative and her red iPod Nano. Barbara Ragan Bennett swears she bought the iPod during the class period, resolving the crisis that faced plaintiffs after three class representatives before her either were withdrawn or rejected. U.S. District Judge Yvonne Gonzalez Rogers struck the last named plaintiff on Dec. 8, midway through the two-week trial in Oakland federal court. She ordered plaintiffs lawyers with Robbins Geller Rudman & Dowd to present a substitute or forsake the case. Apple lawyers William Isaacson and Karen Dunn of Boies, Schiller & Flexner have yet to vet Bennett, but unless they can dig up a reason why she shouldn't represent the class, the trial will proceed as scheduled. Ms. Bennett was the first of five possible substitutes plaintiffs lawyers had lined up on Dec. 9. But Judge Gonzalez Rogers said she was satisfied with Ms. Bennett and found no need to call the others. "I've got someone here who's made a purchase during the relevant time period with her own funds," the judge said, "has some experience, at least from what I can tell is intelligent and concerned, and doesn't have any relationship to the lawyers, and reached out on her own accord." Plaintiffs lawyers, led by Bonny Sweeney and Patrick Coughlin of Robbins Geller, finished their case on Dec. 9, and Apple was set to open on Dec. 10 with testimony from a series of experts. Though Ms. Bennett is single-handedly holding plaintiffs' case together, the jury will likely never hear from her. The trial is expected to wrap up early this week. Lawyers representing the class of more than 8 million iPod consumers and 500 retailers are asking for $1 billion in damages as compensation for technical changes they say Apple made to secure its grip on the MP3 market. They argue a pair of 2006 and 2007 iTunes updates illegally excluded competition by preventing iPods from playing songs purchased from other music stores. Apple's lawyers say the updates were needed to fix security holes. Bennett lives in the Boston area and works as a consultant, she told the court on Dec. 9 after the jury was excused. She has a background in finance and technology. Ms. Bennett said she uses iPods to provide musical accompaniment while she ice skates, a hobby she picked up as an adult. She bought a red iPod Nano in 2006, and over the years has built a large collection of MP3 songs. But Ms. Bennett recounted that she ran into problems when trying to download certain rare pieces of music -- "not your standard Lady Gaga or Madonna" -- that were not available on iTunes. Ms. Bennett says when she bought the music from other music stores, she had to burn it to CDs and then upload it to her computer before she could play it on her iPod. "It was very cumbersome," she said. "And some of it didn't work at all because of the file format." Apple's team was not happy with the plaintiffs' last-minute move to save their case. Mr. Isaacson complained his team hadn't receive a complete list of the proposed class representatives until just before 8:00 a.m. on Dec. 9. "This is becoming a circus," he said. Judge Gonzalez Rogers conceded Apple has been inconvenienced, but said she is trying to minimize the harm. She offered Mr. Isaacson some consolation: "You have an appellate issue now." APPLE INC: Appeals Panel Hear Arguments in E-Book Antitrust Suit ---------------------------------------------------------------- The Associated Press reports that a federal appeals panel is trying to decide whether Apple Inc. or Amazon.com Inc. was the bigger bully when price wars over electronic books heated up a few years ago. Three judges listened to arguments on Dec. 15 after Apple appealed a judge's finding. The earlier ruling concluded that the Cupertino, California company colluded with book publishers in 2010 to raise e-book prices. One judge questioned how unfair it was for Apple to bust Amazon.com's one-time monopoly of the e-book market. Other judges also found possible flaws with the case brought by the Justice Department against Apple and various publishers. The lower-court judge appointed a monitor to review Apple's compliance with antitrust laws. That judge also ordered the company to modify its contracts with publishers. B & M GENERAL: Suit Seeks to Recover Unpaid OT Wages & Damages -------------------------------------------------------------- Rafael Morales, on behalf of himself and all others similarly- situated v. B & M General Renovation Inc., d/b/a B&M General Renovation, and Michael Luong, in his individual and professional capacities, and Theresa Luong, in her individual and professional capacities, Case No. 1:14-cv-07290 (E.D.N.Y., December 15, 2014), seeks to recover unpaid overtime compensation and liquidated damages under the Fair Labor Standard Act. B&M General Renovation Inc. is a remodeling contractor operating in Brooklyn, New York. The Plaintiff is represented by: Todd Dickerson, Esq. BORRELLI & ASSOCIATES 1010 Northern Boulevard, Suite 328 Great Neck, NY 11021 Telephone: (516) 248-5550 Facsimile: (516) 248-6027 E-mail: td@employmentlawyernewyork.com BFC FINANCIAL: Litigation Over BBX Merger Dismissed --------------------------------------------------- Fort Lauderdale, Florida-based BFC Financial Corporation (OTCQB: BFCF; BFCFB) and BBX Capital Corporation (NYSE: BBX), formerly BankAtlantic Bancorp, Inc., in November unveiled the dismissal with prejudice of the In Re: BBX Capital Corporation Litigation. This litigation, a purported class action against BFC, BBX Capital and the members of BBX Capital's Board of Directors, was brought challenging the fairness of the proposed merger between BFC and BBX Capital and seeking an injunction to block the transaction. The Circuit Court of the 17th Judicial Circuit for Broward County, Florida denied plaintiff's motion for class certification and dismissed the case with prejudice on November 5, 2014. Approximately 97% of the BBX Capital shareholders and 86% of the minority shareholders represented at the shareholders' meeting to approve the transaction voted in favor of the merger. The merger remains subject to certain closing conditions, including the listing of BFC's Class A Common Stock on a national securities exchange (or interdealer quotation system of a registered national securities association). BFC and BBX Capital do not currently anticipate that the merger will be consummated prior to the first quarter of 2015. BFC (OTCQB: BFCF; BFCFB) is a holding company whose principal holdings include a 51% ownership interest in BBX Capital Corporation (NYSE: BBX) and its indirect ownership interest in Bluegreen Corporation. BFC owns a 54% equity interest in Woodbridge, the parent company of Bluegreen. BBX Capital owns the remaining 46% equity interest in Woodbridge. Bluegreen manages, markets and sells the Bluegreen Vacation Club, a flexible, points- based, deeded vacation ownership plan with more than 180,000 owners, over 60 owned or managed resorts, and access to more than 4,000 resorts worldwide. BBX Capital, a New York Stock Exchange listed company, is involved in the acquisition, ownership, management, joint ventures and investments in real estate and real estate development projects, as well as acquisitions, investments and management of middle market operating businesses. BBX Capital also has a 46% equity interest in Bluegreen. BFC FINANCIAL: Provides Updates on Bluegreen Shareholder Case ------------------------------------------------------------- BFC Financial Corporation, in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2014, for the quarterly period ended September 30, 2014, provided updates on the In re Bluegreen Corporation Shareholder Litigation. Between November 16, 2011 and February 13, 2012, seven purported class action lawsuits related to the previously proposed stock- for-stock merger between BFC, which at that time was the sole member of Woodbridge, and Bluegreen were filed against Bluegreen, the members of Bluegreen's board of directors, BFC and BXG Florida Corporation, a wholly-owned subsidiary of Woodbridge formed for purposes of the merger ("BXG Merger Sub"). Four of these lawsuits have been consolidated into a single action in Florida, and the other three lawsuits have been consolidated into a single action in Massachusetts and stayed in favor of the Florida action. The four Florida lawsuits, captioned and styled Ronald Kirkland v. Bluegreen Corporation et al. (filed on November 16, 2011); Richard Harriman v. Bluegreen Corporation et al. (filed on November 22, 2011); Alfred Richner v. Bluegreen Corporation et al. (filed on December 2, 2011); and BHR Master Fund, LTD et al. v. Bluegreen Corporation et al. (filed on February 13, 2012), were consolidated into an action styled In Re Bluegreen Corporation Shareholder Litigation. On April 9, 2012, the plaintiffs filed a consolidated amended class action complaint which alleged that the individual director defendants breached their fiduciary duties by (i) agreeing to sell Bluegreen without first taking steps to ensure adequate, fair and maximum consideration, (ii) engineering a transaction to benefit themselves and not the shareholders, and (iii) failing to protect the interests of Bluegreen's minority shareholders. In the complaint, the plaintiffs also alleged that BFC breached its fiduciary duties to Bluegreen's minority shareholders and that BXG Merger Sub aided and abetted the alleged breaches of fiduciary duties by Bluegreen's directors and BFC. In addition, the complaint included allegations relating to claimed violations of Massachusetts law. The complaint sought declaratory and injunctive relief, along with damages and attorneys' fees and costs. The three Massachusetts lawsuits were filed in the Superior Court for Suffolk County in the Commonwealth of Massachusetts and styled as follows: Gaetano Bellavista Caltagirone v. Bluegreen Corporation et al. (filed on November 16, 2011); Alan W. Weber and J.B. Capital Partners L.P. v. Bluegreen Corporation et al. (filed on November 29, 2011); and Barry Fieldman, as Trustee for the Barry & Amy Fieldman Family Trust v. Bluegreen Corporation et al. (filed on December 6, 2011). In their respective complaints, the plaintiffs alleged that the individual director defendants breached their fiduciary duties by agreeing to sell Bluegreen without first taking steps to ensure adequate, fair and maximum consideration. The Fieldman and Weber actions contained the same claim against BFC. In addition, the complaints included claims that BXG Merger Sub, in the case of the Fieldman action, BFC and BXG Merger Sub, in the case of the Caltagirone action, and Bluegreen, in the case of the Weber action, aided and abetted the alleged breaches of fiduciary duties. On January 17, 2012, the three Massachusetts lawsuits were consolidated into a single action styled In Re Bluegreen Corp. Shareholder Litigation, which is presently stayed in favor of the Florida action. Following the public announcement of the termination of the stock- for-stock merger agreement and the entry into the Bluegreen- Woodbridge Cash Merger Agreement during November 2012, the plaintiffs in the Florida action filed a motion for leave to file a supplemental complaint in order to challenge the structure of, and consideration received by Bluegreen's shareholders in, the Bluegreen-Woodbridge Cash Merger. On November 30, 2012, the Florida court granted the plaintiffs' motion and the supplemental complaint was deemed filed as of that date. The supplemental complaint alleges that the merger consideration remained inadequate and continued to be unfair to Bluegreen's minority shareholders. On January 25, 2013, the plaintiffs in the Florida action filed a Second Amended Class Action Complaint that set forth more fully their challenge to the Bluegreen-Woodbridge Cash Merger. The Second Amended Class Action Complaint asserts claims for (i) breach of fiduciary duties against the individual director defendants, BFC, and Woodbridge, (ii) aiding and abetting breaches of fiduciary duties against Bluegreen, BFC, Woodbridge, and BXG Merger Sub, and (iii) a violation of the section of the Massachusetts Business Corporation Act regarding the approval of conflict of interest transactions. During December 2013, class action certification was granted to the plaintiffs in the Florida action. The Bluegreen-Woodbridge Cash Merger was consummated on April 2, 2013. However, the actions related to the transaction remain pending, with the plaintiffs seeking to recover damages in connection with the transaction. BFC and Bluegreen believe that these lawsuits are without merit and intend to defend against them vigorously. BFC FINANCIAL: Provides Updates on BBX Capital Shareholder Suit --------------------------------------------------------------- BFC Financial Corporation, in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2014, for the quarterly period ended September 30, 2014, provided updates on the In re BBX Capital Corporation Shareholder Litigation. On May 30, 2013, Haim Ronan filed a purported class action against BFC, BBX Merger Sub, BBX Capital and the members of BBX Capital's board of directors seeking to represent BBX Capital's shareholders in a lawsuit challenging the currently proposed merger between BFC and BBX Capital. In this action, styled Haim Ronan, On Behalf of Himself and All Others Similarly Situated, v. Alan B. Levan, John E. Abdo, Jarett S. Levan, Steven M. Coldren, Bruno L. Di Giulian, Charlie C. Winningham, II, David A. Lieberman, Willis N. Holcombe, Anthony P. Segreto, BBX Capital Corporation, BFC Financial Corporation and BBX Merger Sub, LLC filed in the Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida, Mr. Ronan asserted as a cause of action that the individual defendants breached their fiduciary duties of care, loyalty and good faith, in part, by failing to obtain a high enough price for the shares of BBX Capital's Class A Common Stock to be acquired by BFC in the merger. Mr. Ronan also asserted a cause of action against BFC and BBX Merger Sub for aiding and abetting the alleged breaches of fiduciary duties. Mr. Ronan sought an injunction blocking the proposed merger. On May 31, 2013, in an action styled John P. Lauterbach, on Behalf of Himself and All Others Similarly Situated, v. BBX Capital Corporation, John E. Abdo, Norman H. Becker, Steven M. Coldren, Bruno L. Di Giulian, John K. Grelle, Willis N. Holcombe, Alan B. Levan, Jarett S. Levan, David A. Lieberman, Anthony P. Segreto, Charlie C. Winningham II, Seth M. Wise, BFC Financial Corporation and BBX Merger Sub, LLC and filed in the Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida, John P. Lauterbach filed a purported class action against all of the defendants named in Mr. Ronan's complaint, which challenged the currently proposed merger for substantially the same reasons as set forth in Mr. Ronan's complaint, but asserted an additional, direct cause of action for breach of fiduciary duties against BFC, Alan B. Levan and John E. Abdo. Mr. Lauterbach also added as defendants Norman H. Becker, who was appointed to BBX Capital's board of directors on May 7, 2013, as well as Seth M. Wise, who serves as an executive officer and director of BFC and as an executive officer of BBX Capital, and John K. Grelle, who serves as an executive officer of BFC and BBX Capital. On September 4, 2013, the Ronan and Lauterbach actions were consolidated into a single action styled In Re BBX Capital Corporation Shareholder Litigation, with the complaint filed in the Lauterbach action being the operative complaint in the consolidated action. On October 11, 2013, the plaintiffs filed an amended complaint in the consolidated action. In the amended complaint, which included the same causes of action set forth in the Lauterbach complaint, the plaintiffs: (i) alleged that the merger, including the exchange ratio and other terms and conditions of the merger agreement, is unfair to BBX Capital's minority shareholders and is the product of unfair dealing on the part of the defendants; (ii) alleged that the defendants initiated, timed, negotiated and structured the merger for the benefit of BFC and to the detriment of BBX Capital's minority shareholders, including that BFC and its and BBX Capital's management caused BBX Capital to engage in transactions which had the effect of reducing BBX Capital's intrinsic value; (iii) challenged the independence of the members of BBX Capital's special committee and the process pursuant to which BBX Capital's special committee engaged its legal and financial advisors, and negotiated and approved the merger agreement, including limitations on its ability to pursue alternative transactions; (iv) asserted that BBX Capital's shareholders' rights to appraisal do not constitute an adequate remedy; and (v) alleged that the joint proxy statement/prospectus relating to the merger contains material misrepresentations and does not contain adequate disclosure regarding the merger and specifically the value of BBX Capital and the shares of its Class A Common Stock, and fails to provide the plaintiffs and BBX Capital's minority shareholders the information necessary to determine whether the merger consideration is fair. On November 8, 2013, defendants filed a motion to dismiss the amended complaint arguing that plaintiffs' remedies were limited to an action for appraisal under Florida law. On April 8, 2014, the Court denied defendants' motion to dismiss. On April 11, 2014, plaintiffs filed a motion for class certification and on April 18, 2014, plaintiffs filed a Second Amended Class Action Complaint. The Second Amended Class Action Complaint added allegations with respect to BBX Capital's March 21, 2014 definitive proxy statement. Specifically, plaintiffs alleged that the definitive proxy statement failed to provide full and accurate disclosure regarding: (i) the timing of the merger, (ii) the status of the listing of the shares of BFC's Class A Common Stock to be issued in the merger; (iii) transactions impacting valuation following the negotiation of the exchange ratio; (iv) the per share value of shares held by BBX Capital's minority shareholders and (v) the fundamental assumptions underlying the opinion of BBX Capital's financial advisor. On November 5, 2014, the Court denied Plaintiffs' motion for class certification and dismissed the case with prejudice. The Plaintiffs have the right to appeal this ruling. BBX Capital and BFC believe the claims to be without merit and intend to vigorously defend the action. BFC FINANCIAL: Updates on NJ Tax Sales Certificate Antitrust Suit ----------------------------------------------------------------- BFC Financial Corporation, in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2014, for the quarterly period ended September 30, 2014, provided updates on the New Jersey Tax Sales Certificates Antitrust Litigation. On December 21, 2012, plaintiffs filed an Amended Complaint in an existing purported class action filed in Federal District Court in New Jersey adding BBX Capital and Fidelity Tax, LLC, a wholly- owned subsidiary of CAM, among others, as defendants. The class action complaint is brought on behalf of a class defined as "all persons who owned real property in the State of New Jersey and who had a Tax Certificate issued with respect to their property that was purchased by a Defendant during the Class Period at a public auction in the State of New Jersey at an interest rate above 0%." Plaintiffs allege that beginning in January 1998 and at least through February 2009, the defendants were part of a statewide conspiracy to manipulate interest rates associated with tax certificates sold at public auction. During this period, Fidelity Tax was a subsidiary of BankAtlantic. Fidelity Tax was contributed to CAM in connection with the sale of BankAtlantic in the BB&T Transaction. BBX Capital and Fidelity Tax filed a Motion to Dismiss in March 2013 and on October 23, 2013, the Court granted the Motion to Dismiss and dismissed the Amended Complaint with prejudice as to certain claims, but without prejudice as to plaintiffs' main antitrust claim. Plaintiffs' counsel filed a Consolidated Amended Complaint on January 6, 2014. BBX Capital believes the claims to be without merit and intends to vigorously defend the action. BOLT TECHNOLOGY: Has MOU to Settle Teledyne Merger Class Suits -------------------------------------------------------------- Bolt Technology Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2014, for the quarterly period ended September 30, 2014, that the Company, the members of the Company's board of directors, Teledyne Technologies Incorporated, and Merger Sub entered into a memorandum of understanding ("MOU") with the plaintiffs in the three pending class action lawsuits providing for the settlement of all claims in the cases. On September 3, 2014, the Company entered into an agreement and plan of merger (the "Merger Agreement"), pursuant to which Teledyne Technologies Incorporated ("Teledyne") will acquire the Company (the "Merger"). Between September 10, 2014 and September 24, 2014, five substantially similar putative class action complaints were filed in the Superior Court of the State of Connecticut naming the Company, the members of the Company's board of directors, Teledyne, and a Teledyne merger subsidiary ("Merger Sub") as defendants. The complaints alleged that the members of the Company's board of directors breached their fiduciary duties to Bolt's shareholders by agreeing to sell Bolt for inadequate and unfair consideration and pursuant to an inadequate and unfair process, and that Teledyne and/or Merger Sub aided and abetted those alleged breaches. Teledyne and/or Merger Sub removed all five cases to Federal Court. On October 23, 2014, amended complaints were filed in four of the cases. On October 16, 2014, the court consolidated all of the cases identified above into Armin Walker v. Bolt Technology Corporation et al., C.A. No. 3:14- cv-01406, (the "Action"). On October 31, 2014, one of the five plaintiffs voluntarily dismissed her case, leaving four consolidated cases in the Action. On November 3, 2014, the Federal Court remanded the Action to state court in Connecticut, which also had the effect of returning the cases to four separate cases (the "Cases"). On November 10, 2014, one of the remaining four plaintiffs withdrew his case, leaving a total of three separate Cases. On November 10, 2014, the Company, the members of the Company's board of directors, Teledyne, and Merger Sub entered into a memorandum of understanding ("MOU") with the plaintiffs in the three pending Cases providing for the settlement of all claims in the Cases. Under the MOU, and subject to conditions, including court approval and further definitive documentation, the plaintiffs on behalf of the putative class they represent have agreed to settle and release, against the defendants and their affiliates and agents, all claims in the Action and Cases and any potential claim related to (i) the Merger and/or the Merger Agreement, or any amendment thereto; (ii) the adequacy of the consideration to be paid to the Company's shareholders in connection with the Merger; (iii) the fiduciary obligations of any of the defendants or other released parties in connection with the Merger and/or the Merger Agreement, or any amendment thereto; (iv) the negotiations in connection with and process leading to the Merger and/or the Merger Agreement, or any amendment thereto; and (v) the disclosures or disclosure obligations of any of the defendants or other released parties in connection with the Merger and/or the Merger Agreement. The settlement provides for the Company to file additional disclosures supplementing its Definitive Proxy Statement, which disclosures will be filed as soon as the MOU is executed by all of the parties. The settlement will be subject to approval by the Connecticut Superior Court, after a hearing at which dissenting stockholders can object. The settlement application to the court will include an application for payment by defendants of plaintiffs' legal fees. The amount of such legal fees is undetermined at this time. The Company anticipates that its D&O insurance will cover any such payments, subject to any applicable deductible. BUDDY BEE: "Masso" Suit Seeks to Recover Unpaid Overtime Wages -------------------------------------------------------------- Karina Masso, and other similarly situated individuals v. Buddy Bee Corp. d/b/a Take One Lounge, a Florida corporation, and Karen Raley, Case No. 1:14-cv-24720 (S.D. Fla., December 15, 2014), seeks to recover unpaid overtime wages and damages in violation of the Fair Labor Standard Act. The Defendants own and operate a bar and restaurant on Miami, Florida. The Plaintiff is represented by: Ruben Martin Saenz, Esq. SAENZ & ANDERSON, PLLC 20900 N.E. 30th Avenue, Suite 800 Aventura, FL 33180 Telephone: (305) 503-5131 Facsimile: (888) 270-5549 E-mail: msaenz@saenzanderson.com CALIFORNIA: Dismissal of Supervisory Engineers' Suit Affirmed ------------------------------------------------------------- A California appellate court affirmed the trial court's judgment of dismissal in the case captioned JOHN PROKOP et al., Plaintiffs and Appellants, v. EDMUND G. BROWN, JR., et al., Defendants and Respondents, No. B247393 (Cal. App.). Plaintiffs are supervisory engineers employed by the State of California. Their claim concerns pay raises on behalf of themselves and all persons similarly situated. They argued they were entitled to a 10.1 percent pay raise from 2008 to the present, as initially allocated in the 2008 Budget Act, which the Department of Human Resources (CalHR) failed to pay in violation of the pay parity provisions of Government Code section 19826. The trial court sustained the demurrers of defendant government officials and entered a judgment of dismissal. On appeal, plaintiffs have limited their claim to the contention that they are entitled to compensation appropriated and approved in the 2008 Budget Act. In its petition for writ of mandate, Plaintiffs alleged that defendants have a clear, present, mandatory and ministerial duty to pay their equal salaries to rank-and-file engineers with comparable duties. Plaintiffs contend that the payment of compensation approved by CalHR and appropriated by the Legislature is a ministerial act subject to a writ of mandate. Further, Plaintiffs contend that their action is not subject to the one- year statute of limitations contained in section 19815.8 because it is not related to any law administered by CalHR. However, the Appellate Court ruled that their action is time- barred by virtue of Government Code Section 19815.8. The code provides that an action or proceeding shall commence within one year after the cause of action or complaint or ground for issuance of any writ or legal remedy first arose. Plaintiffs were required to initiate their action within one year of the date that they failed to receive the additional compensation. Plaintiffs' complaint in 2012 was filed long after the one-year limitations period ran on deficient payments made under the 2008 Budget Act. Hence, the trial court properly found the complaint barred under section 19815.8. A copy of the Order dated October 22, 2014, is available at http://bit.ly/1nLVDHRfrom Leagle.com. CANADA: Loses Bid to Dismiss "60s Scoop" Class Action ----------------------------------------------------- Diana Mehta, writing for The Canadian Press, reports that an Ontario court has dismissed an appeal by the federal government that sought to quash a class action lawsuit which claims a devastating loss of cultural identity was suffered by Ontario children caught in the so-called "60s scoop." The scoop refers to a period of time between the 1960s and the 1980s when thousands of aboriginal children were taken from their homes and placed with non-native families by child welfare services. The Divisional Court ruling finds that the case deals with a person's connection to their aboriginal culture "as a whole." "It is difficult to see a specific interest that could be of more importance to aboriginal peoples than each person's essential connection to their aboriginal heritage," Justice Ian Nordheimer writes in the decision on the case which was heard by a panel of three judges in Toronto last month. "The importance of aboriginal rights cannot be disputed." An Ontario court certified the class action lawsuit in July last year, but the federal government then sought, and was granted, leave to appeal that decision. The ruling on that appeal, released on Dec. 3, explained that the issue of whether a proper cause of action was pleaded was the matter in dispute. The panel of judges found that aboriginal claims are ones which are "particularly undeveloped and fluid, consequently, greater latitude should be accorded to them." The period covered by the lawsuit stretches from December 1965 -- when the federal government signed an agreement with Ontario known as the Canada-Ontario Welfare Services Agreement -- until December 1984, when aboriginality was made an important factor in child protection and placement practices through the Child and Family Services Act. The lawsuit alleges many children suffered emotional, psychological and spiritual harm as a result of a loss of connection to their aboriginal culture. The case's representative plaintiff, Marcia Brown Martel, has claimed her loss of cultural identity left her feeling like she didn't belong in aboriginal or mainstream society. She was taken by child welfare services from her home on an Ontario First Nations reserve as a young child. She was adopted into a non-indigenous family at the age of nine, at which point her aboriginal name was changed. Ms. Martel cut ties with her adoptive family after she turned 18 and eventually returned to the reserve where she had been born. After years of slow and often painful re-integration, she is now the chief of the Beaverhouse First Nation in northern Ontario's Kirkland Lake region. In a statement released on Dec. 3, Ms. Martel and her lawyer called the ruling an "unprecedented" one which "sets the standards for protecting cultural rights of all peoples." The plaintiffs in the lawsuit are seeking a declaration that Canada breached its fiduciary obligation and is seeking $85,000 in damages for each class member. Ms. Martel's lawyer has said there are believed to be 16,000 surviving children of the 60s scoop in Ontario. None of the claims in the suit have been proven in court. CHRISTIAN BROTHERS: 2nd Cir. Affirms Dismissal of Slavery Claim --------------------------------------------------------------- Once ripped from their families after World War II to populate Australia with "pure white stock," Maltese children described "shocking violations of internationally accepted norms" in a federal lawsuit four years ago. But Supreme Court precedent and the statute of limitations means that the Catholic orders that treated them "essentially as slaves" will never see a federal jury, reports Adam Klasfeld at Courthouse News Service, citing a 2nd Circuit ruling entered on December 8. Emmanuel Ellul says that he was 14 years old when the Congregation of Christian Brothers told his parents that he and his brothers would be able to return to Malta following his education in Australia. Instead, the Roman Catholic order forced them into physical labor from morning until nightfall and told them his parents were dead, Ellul alleged. Now 68, Ellul became the first of three named plaintiffs in a class action lawsuit filed on behalf of as many as 10,000 former child migrants, some as young as three years old, sent from Britain or its former colony Malta to Australia on cheap labor schemes between 1947 and 1967. The children allegedly worked "essentially as slaves, for long hours without pay, and were subjected to extreme physical and, in some cases, sexual abuse," the appellate court noted. The Australian government acknowledged the existence of the program in 2001, and former Prime Minister Kevin Rudd issued a former apology for the abuse they suffered in 2009. The next year, the former child migrants sought to hold the Congregation of Christian Brothers, Order of the Sisters of Mercy, Catholic Religious Order and Mercy International liable for violating the Alien Tort Statute, a 1789 law that was briefly reanimated toward the turn of the 20th century to sue companies for overseas atrocities. The use of this statute to redress corporate wrongs committed abroad has been all but gutted in the wake of last year's Supreme Court's decision in the case of Kiobel v. Royal Dutch Petroleum. Writing for a unanimous three-judge panel, U.S. Circuit Judge Gerard Lynch ruled on December 8 that the alleged victims had no case because of the Kiobel precedent and the statute of limitations. Lawyers for the former child migrants and the Catholic orders did not immediately respond to a request for comment. Plaintiffs-Appellants Emmanuel Ellul, Valerie Carmack, and Hazel Goulding are represented by: Neal A. Deyoung, Esq. H. Rajan Sharma, Esq. SHARMA & DEYOUNG LLP 555 Fifth Avenue, 17th Floor New York, NY 10017 Telephone: (212) 856-7236 E-mail: neal@sharmadeyoung.com rajan@sharmadeyoung.com Defendant-Appellee Congregation of Christian Brothers is represented by: Timothy James O'Shaughnessy, Esq. Matthew W. Naparty, Esq. MAURO LILLING NAPARTY LLP 130 Crossways Park Drive, Suite 100 Woodbury, NY 11797 Telephone: (516) 487-5800 Facsimile: (516) 487-5811 Toll Free: 1-888-487-5800 E-mail: mnaparty@mlnappeals.com Defendant-Appellee Order of the Sisters of Mercy is represented by: Thomas Edward Wack, Esq. Michael Gordon Biggers, Esq. BRYAN CAVE LLP One Metropolitan Square 211 North Broadway, Suite 3600 St. Louis, MO 63102-2750 Telephone: (314) 259-2000 Facsimile: (314) 259-2020 E-mail: tewack@bryancave.com mgbiggers@bryancave.com The case is Emmanuel Ellul, et al. v. Congregation of Christian Brothers, Order of the Sisters of Mercy, Catholic Religious Order, Does 1-10, Defendants-Appellees; Mercy International Association, Defendant, Case No. 11-1682-cv, in the United States Court of Appeals for the Second Circuit. COBALT INT'L: Faces Shareholder Class Action Over Alleged Bribery ----------------------------------------------------------------- Legal Newsline reports that a class action lawsuit alleges an oil company violated federal law by engaging in bribery with foreign officials. The St. Lucie County, Fla., Fire District Firefighters' Pension Trust Fund and Fire and Police Retiree Health Care Fund filed the suit against Cobalt International Energy. The plaintiffs are seeking class status for those who purchased Cobalt securities between Feb. 21, 2012, and Nov. 4. The lawsuit alleges Cobalt secured permission to drill in Angolan wells through bribery and partnerships with shell corporations that were partially owned by "high-level Angolan officials." The lawsuit alleges the company violated the Foreign Corrupt Practices Act (FCPA) by paying foreign officials through third parties or shell companies. Cobalt denied any wrongdoing when the U.S. Securities and Exchange Commission announced in February 2012 that it was investigating the company for potential violations of the FCPA. Additionally, the company allegedly lied about the amount of oil and natural gas that was in the Angolan wells. The falsified information artificially inflated the value of the company, the lawsuit said. The company eventually admitted one of the wells in Angola contained more natural gas than originally estimated. Cobalt's stock fell from $22.23 to $17.51 over a recent four-day span, the lawsuit said. The plaintiffs are represented by Gerald Drought -- gdrought@mdtlaw.com -- of Martin & Drought P.C.; Gerald Silk, Avi Josefson and Adam Wierzbowski -- adam@blbglaw.com -- of the Bernstein Litowitz Berger & Grossmann LLP; and Robert Klausner -- bob@robertdklausner.com -- and Bonni Jensen -- bonni@robertdklausner.com -- of Klausner Kaufman Jensen & Levinson. United States District Court for the Southern District of Texas case number 4:14-cv-03428. COMCAST CORP: Used Routers for Public Wi-Fi Network, Suit Says -------------------------------------------------------------- A federal class action accuses Comcast of surreptitiously making its residential customers bear the cost of using their wireless routers to set up a secondary public wi-fi network, reports Katherine Proctor at Courthouse News Service. Lead plaintiff Toyer Grear sued Comcast on Dec. 4. He claims that Comcast saw its millions of residential customers as an opportunity to compete with major cellular carriers such as AT&T and Verizon. Though Comcast does not have cellular towers, its customers' households "could be used as infrastructure for a national wi-fi network," the complaint states. So Comcast supplied its residential customers with new wireless routers equipped to broadcast their home wi-fi signals and additional wi-fi signals for the public, selectively activating the routers to broadcast the secondary public network (the "Xfinity wifi hotspot") across the country, with the goal of enabling 8 million hotspots by the end of 2014, according to the lawsuit. "Public" in this case does not mean "free," but that access is available to anyone who pays to use a particular wi-fi hotspot. Grear claims that Comcast does not request customers' authorization to use their residential equipment and networks for public use. "Indeed, Comcast's contract with its customers is so vague that it is unclear as to whether Comcast even addresses this practice at all," the lawsuit claims. In using its customers' home networks to build a national network, Comcast "has externalized the costs of its national wi-fi network onto its customers," Grear says in the complaint. He claims that the new routers use much more electricity than regular routers, and that this is "a cost borne by the unwitting customer." Engineers at Speedify, a technology company that increases Internet connection speeds, ran tests on Comcast's new routers and determined that "Comcast will be pushing tens of millions of dollars per month of the electricity bills needed to run their nationwide public wi-fi network onto consumers," the complaint states. Based on the results of this study, Grear claims, Comcast's residential customers can expect electricity cost increases as great as 30 to 40 percent. In addition, Grear claims, the Xfinity hotspots slow down the speed of customers' home wi-fi networks, since these home networks are available for use by strangers. They also expose Comcast's residential customers' data to increased privacy and security risks, according to the complaint. Comcast declined to comment. Grear seeks certification of a class of all households in the United States that have subscribed to Comcast's Xfinity Internet Service, and a subclass of all California households that have subscribed to the service. He also seeks declaratory judgment, an injunction, restitution and damages for violations of the Computer Fraud and Abuse Act, the Comprehensive Computer Data Access and Fraud Act and California's Unfair Competition Law. The Plaintiff is represented by: Gillian Wade, Esq. Sara Avila, Esq. MILSTEIN ADELMAN, LLP 2800 Donald Douglas Loop N Santa Monica, CA 90405 Telephone: (310) 396-9600 Facsimile: (310) 396-9635 E-mail: gwade@milsteinadelman.com savila@milsteinadelman.com COSTCO WHOLESALE: Falsely Marketed TruNature Products, Suit Says ---------------------------------------------------------------- Tatiana Korolshteyn, on behalf of herself and all others similarly situated v. Costco Wholesale Corporation, Case No. 3:14-cv-05447 (N.D. Cal., December 15, 2014), alleges that the Defendant falsely represents on the front of each and every TruNature Ginkgo label that the Product supports alertness & memory and on the side of each and every label that Ginkgo Biloba can help with mental clarity and memory and it also helps maintain healthy blood flow to the brain to assist mental clarity and memory, especially occasional mild memory problems associated with aging. Costco Wholesale Corporation is an American membership-only warehouse club that provides a wide selection of merchandise. The Plaintiff is represented by: Elaine A. Ryan, Esq. Patricia N. Syverson, Esq. Lindsey M. Gomez-Gray, Esq. BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C. 2325 E. Camelback Rd. Suite 300 Phoenix, AZ 85016 Telephone: (602) 274-1100 E-mail: eryan@bffb.com psyverson@bffb.com - and - Manfred P. Muecke, Esq. BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C. 600 W. Broadway, Suite 900 San Diego, CA 92101 Telephone: (619) 756-7748 E-mail: mmuecke@bffb.com - and - Stewart M. Weltman, Esq. STEWART M. WELTMAN, LLC 53 W. Jackson Suite 364 Chicago, IL 60604 Telephone: (312) 588-5033 E-mail: sweltman@weltmanlawfirm.com CVB FINANCIAL: Appeals Court to Set Oral Argument Within 6-9 Mos. ----------------------------------------------------------------- CVB Financial Corp. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2014, for the quarterly period ended September 30, 2014, that a court of appeals is expected to schedule oral argument at some point within the next six to nine months, and would then issue its opinion at some point six to nine months thereafter in an appeal in a class action lawsuit. The Company said, "On July 26, 2010, we received a subpoena from the Los Angeles office of the SEC regarding the Company's allowance for loan loss methodology, loan underwriting guidelines, methodology for grading loans, and the process for making provisions for loan losses. In addition, the subpoena requested information regarding certain presentations Company officers have given or conferences Company officers have attended with analysts, brokers, investors or prospective investors. We have fully cooperated with the SEC in its investigation, and we will continue to do so if and to the extent any further information is requested, although we have not been contacted by the SEC in connection with this matter since October 2011. We cannot predict the timing or outcome of the SEC investigation or if it is still continuing." "In the wake of the Company's disclosure of the SEC investigation, on August 23, 2010, a purported shareholder class action complaint was filed against the Company, in an action captioned Lloyd v. CVB Financial Corp., et al., Case No. CV 10-06256- MMM, in the United States District Court for the Central District of California. Along with the Company, Christopher D. Myers (our President and Chief Executive Officer) and Edward J. Biebrich, Jr. (our former Chief Financial Officer) were also named as defendants. On September 14, 2010, a second purported shareholder class action complaint was filed against the Company, in an action originally captioned Englund v. CVB Financial Corp., et al., Case No. CV 10- 06815-RGK, in the United States District Court for the Central District of California. The Englund complaint named the same defendants as the Lloyd complaint and made allegations substantially similar to those included in the Lloyd complaint. On January 21, 2011, the District Court consolidated the two actions for all purposes under the Lloyd action, now captioned as Case No. CV 10-06256-MMM (PJWx). "That same day, the District Court also appointed the Jacksonville Police and Fire Pension Fund (the "Jacksonville Fund") as lead plaintiff in the consolidated action and approved the Jacksonville Fund's selection of lead counsel for the plaintiffs in the consolidated action. On March 7, 2011, the Jacksonville Fund filed a consolidated complaint naming the same defendants and alleging violations by all defendants of Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder and violations by the individual defendants of Section 20(a) of the Exchange Act. Specifically, the complaint alleges that defendants misrepresented and failed to disclose conditions adversely affecting the Company throughout the purported class period, which is alleged to be between October 21, 2009 and August 9, 2010. The consolidated complaint sought compensatory damages and other relief in favor of the purported class. "Following the filing by each side of various motions and briefs, and a hearing on August 29, 2011, the District Court issued a ruling on January 12, 2012, granting defendants' motion to dismiss the consolidated complaint, but the ruling provided the plaintiffs with leave to file an amended complaint within 45 days of the date of the order. On February 27, 2012, the plaintiffs filed a first amended complaint against the same defendants, and, following filings by both sides and another hearing on June 4, 2012, the District Court issued a ruling on August 21, 2012, granting defendants' motion to dismiss the first amended complaint, but providing the plaintiffs with leave to file another amended complaint within 30 days of the ruling. On September 20, 2012, the plaintiffs filed a second amended complaint against the same defendants, the Company filed its third motion to dismiss on October 25, 2012, and following another hearing on February 25, 2013, the District Court issued an order dismissing the plaintiffs' complaint for the third time on May 9, 2013. "Although the District Court's most recent order of dismissal provided the plaintiffs with leave to file a third amended and restated complaint within 30 days of the issuance of the order, on June 3, 2013, counsel for the plaintiffs instead filed a Notice of Intent Not to File an Amended Complaint, along with a request that the District Court convert its order to a dismissal with prejudice, so that plaintiffs could proceed straight to appeal at the U.S. Court of Appeals for the Ninth Circuit. On September 30, 2013, the District Court entered its order dismissing the plaintiffs' second amended complaint with prejudice, and the plaintiffs filed their notice of appeal on October 24, 2013. "With respect to the appeal, the plaintiffs' opening brief was filed on June 7, 2014, the Company's reply brief was filed on July 7, 2014, and the plaintiff's rebuttal brief was filed on August 20, 2014. It is expected that the Court of Appeals will schedule oral argument at some point within the next six to nine months, and would then issue its opinion at some point six to nine months thereafter. "The Company intends to continue to vigorously contest the plaintiff's allegations in this case." DART CHEROKEE: Obtains Favorable Ruling in Royalties Class Action ----------------------------------------------------------------- The Associated Press reports that the Supreme Court won't make it tougher for defendants in class-action lawsuits to transfer cases from state courts to more business-friendly federal court. The justices on Dec. 15 ruled 5-4 in favor of a Michigan energy company that wanted to move a class-action case from Kansas state court to federal court without showing evidence that damages in the case would exceed $5 million. That is the minimum amount required for transferring such cases. The case involved a group of royalty owners who sued Dart Cherokee Basin Operating Co. alleging they were underpaid royalties on oil and gas wells. A federal judge refused to transfer the case without evidence of damages. A federal appeals court declined to consider an appeal, but the Supreme Court said the law does not require such evidence. The case is, DART CHEROKEE BASIN OPERATING COMPANY, LLC, ET AL., PETITIONERS, v. BRANDON W. OWENS, NO. 13-719 (U.S.). GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, C. J., and BREYER, ALITO, and SOTOMAYOR, JJ., joined. SCALIA, J., filed a dissenting opinion, in which KENNEDY and KAGAN, JJ., joined, and in which THOMAS, J., joined as to all but the final sentence. THOMAS, J., filed a dissenting opinion. A copy of the decision is available at http://is.gd/taFey0from Leagle.com. DIRECT ENERGY: Faces Class Action Over Deceptive Practices ---------------------------------------------------------- Doug Stewart and John Charlton, writing for Fox CT, report that a law firm has filed class action lawsuits against four electric suppliers for deceptive practices. The four companies accused of over-charging customers are Direct Energy, North American Power and Gas, Viridian Energy, and Discount Power. The filing attorney, Robert Izard, of Izard Nobel, said the companies claim in their contracts that their variable rates go up and down with the wholesale price of electricity. But the lawsuits allege that the rates per kilowatt hour actually stay high when wholesale prices go down. Izard argued state paperwork shows that rates can be as high as five times the wholesale price. Consumers have a choice of which company supplies the power in their homes. Many choose to stay with CL&P. Others were lured by the promise of lower rates and have switched suppliers. The suppliers act as a broker, buying and reselling the energy at a higher price. Mr. Izard claimed customers sign up with certain electric suppliers when the original fixed rate is good. "What you often get is a 'teaser rate,' it will last for three, four, five months," Mr. Izard said. "And then when that teaser rate expires, it automatically shifts to a variable rate and that's when people are seeing the big price jumps." Fox CT reached out to the companies being sued for comment, but only North American Power provided a statement that the lawsuit is absolutely without merit and that the company provides written notices to customers when their fixed rates are becoming variable rates. DIRECT SOURCE: Has Made Unsolicited Calls, "Pacleb" Suit Claims --------------------------------------------------------------- Florencio Pacleb, individually and on behalf of all others similarly situated v. Direct Source Mortgage Services, Ltd., an Ohio Limited Liability Company, Case No. 2:14-cv-09592 (C.D. Cal., December 15, 2014), is brought against the Defendant for negligently, knowingly, and willfully contacting the Plaintiff on the cellular telephone in violation of the Telephone Consumer Protection Act. Direct Source Mortgage Services, Ltd. is a loan and mortgage service company. The Plaintiff is represented by: Arvin Ratanavongse, Esq. Todd M. Friedman, Esq. THE LAW OFFICES OF TODD M FRIEDMAN PC 324 S Beverly Drive Suite 725 Beverly Hills, CA 90212 Telephone: (877) 206-4741 Facsimile: (866) 633-0228 E-mail: aratanavongse@toddflaw.com tfriedman@attorneysforconsumers.com DOJI INC: Faces "Skiba" Suit Over Failure to Pay Overtime Wages --------------------------------------------------------------- Frank Skiba, individually, and on behalf of all others similarly situated v. Doji, Inc., d/b/a Demos' Steak & Spaghetti House, and Peter Demos, Case No. 3:14-cv-02355 (M.D. Tenn., December 15, 2014), is brought against the Defendants for failure to pay overtime wages for work in excess of 40 hours per week. The Defendants own and operate a restaurant located at 1119 NW Broad St., Murfreesboro, TN 37129. The Plaintiff is represented by: Randall W. Burton, Esq. LAW OFFICE OF RANDALL W. BURTON 144 Second Avenue, North, Suite 212 Nashville, TN 37201 Telephone: (615) 620-5838 Facsimile: (615) 620-5837 E-mail: rburtonlaw@gmail.com DUCK WALK: Faces "Cardona" Suit Over Failure to Pay OT Wages ------------------------------------------------------------ Efren Cardona, individually and on behalf of other employees similarly situated v. Duck Walk, Inc. and Worrachi Nusphayoon, Case No. 1:14-cv-10056 (N.D. Ill., December 15, 2014), is brought against the Defendants for failure to pay overtime wages for hours worked in excess of 40 in a week. The Defendants own and operate a vineyard within the State of Illinois. The Plaintiff is represented by: David Erik Stevens, Esq. CONSUMER LAW GROUP, LLC 6232 N. Pulaski, Suite 200 Chicago, IL 60646 Telephone: (312) 624-8958 E-mail: Dave@StevensLawLLC.com ELECTRONIC ARTS: Must Pay $4.86-Mil. for Infringing Uniloc Patent ----------------------------------------------------------------- David Lee at Courthouse News Service reports that video game giant Electronic Arts must pay over $4.86 million for infringing on a computer security firm's anti-software piracy patent, a federal jury concluded. Plano, Texas-based Uniloc USA Inc. and Uniloc Luxembourg S.A. sued in 2013, claiming EA's SecuROM video game activation system infringes on U.S. Patent No. 5,490,216. The system allows EA customers to activate and register their video games and is aimed at reducing piracy and "casual copying," Uniloc alleged. SecuROM restricts the number of devices a customer can simultaneously activate a game on with the same key. EA games that use the system include "Alice: Madness Returns," "Dragon Age II" and "Darkspore: Limited Edition," the complaint stated. Uniloc asked the court to for compensatory damages and "a reasonable, on-going, post judgment royalty." A federal jury agreed with Uniloc and awarded over $4.86 million in compensatory damages on December 5. EA and Uniloc did not immediately respond to requests for comment on December 8 morning. Redwood City, California-based EA has faced previous lawsuits over its use of SecuROM. Players of "Spore" filed a class action in San Jose Federal Court in Sept. 20008, claiming SecuROM was installed onto their computers as a separate, free-standing program without their authorization. They claimed the program was "uninstallable" that "remains a fixture in their computer unless and until the consumer completely wipes their hard drive through reformatting or replacement of the drive." A second class action with similar allegations was filed one month later by players of "Mass Effect." ESB FINANCIAL: Faces "Elliott" Suit Over Illegal Sale of Company ---------------------------------------------------------------- James Elliott, on behalf of himself and all others similarly situated v. ESB Financial, Inc., Herbert S. Skuba, Charlotte A. Zuschlag, James P. Wetzel, Jr., Mario J. Manna, William B. Salsgiver and Wesbanco, Inc., Case No. 2:14-cv-01689 (W.D. Pa., December 15, 2014), arises out of the attempt to sell the ESB Financial, Inc. to WesBanco, Inc. by means of an unfair process and for an unfair price. ESB Financial, Inc. operates as a thrift holding company for ESB Bank that provides various retail and commercial financial products and services in Western Pennsylvania in the United States. Wesbanco, Inc. operates as a holding company for WesBanco Bank, Inc. that provides retail banking, corporate banking, personal and corporate trust services, and mortgage banking and insurance services in the Unites States. The Individual Defendants are officers and directors of ESB Financial, Inc. The Plaintiff is represented by: Alfred G. Yates Jr., Esq. LAW OFFICES OF ALFRED G. YATES, JR. 429 Forbes Avenue, 519 Allegheny Building Pittsburgh, PA 15219 Telephone: (412) 391-5164 E-mail: Yateslaw@aol.com FACEBOOK INC: Lemberg Law Firm Sues Over Unwanted Text Messages --------------------------------------------------------------- On behalf of Noah Duguid, Lemberg Law filed a class action lawsuit against Facebook, Inc., alleging that the social media behemoth violated the Telephone Consumer Protection Act by sending unwanted text messages to consumers' cell phones using an automated telephone dialing system. According to consumer attorney Sergei Lemberg, "We're pleased to be able to help Mr. Duguid get the justice he deserves." In Duguid v. Facebook (U.S. District Court, Southern District of New York), Mr. Duguid alleges that Facebook "negligently, knowingly, and/or willfully sent unauthorized automated text messages to [his] cellular phone in violation of the Telephone Consumer Protection Act." The suit alleges that, beginning in January 2014, "Facebook placed repeated text messages to [Duguid]." The complaint reproduced the messages, which were variations of, "Your Facebook account was accessed from an unknown browser at 2:16 p.m. Log in for more info." The complaint states that, in April, Mr. Duguid "sent Facebook a detailed email complaining of the unauthorized text messages to his cell phone and requesting that the text messages cease." Facebook responded with an automated email directing Mr. Duguid "to log on to the Facebook website to report problematic 'content.'" The complaint further outlines that Mr. Duguid replied, again explaining the issue, and noting, "A human needs to read this email and take action." According to the complaint, "In response, Facebook sent the same automated email as received in response to the first email." The legal filing outlines the next in a sequence of events. It notes that, in October, Mr. Druguid "responded to a text message form Facebook with the word 'off'. Facebook responded: 'Facebook texts are now off. Reply on to turn them back on.'" Nevertheless, according to the complaint, ". . . the very same day, Facebook sent Plaintiff another text message. [Druguid] once again responded 'off' and 'all off.' Again, Facebook responded, 'Facebook texts are now off. Reply on to turn them back on.' Again, still in the same day, Facebook sent [Druguid] another text message." The complaint seeks to represent two classes of consumers. The first class consists of those who didn't provide Facebook with their cell phone number and who received text messages from Facebook within the past four years. The second class consists of those how notified Facebook that they no longer wanted to receive text messages, and received a confirmation from Facebook, but still received a text message from the company. Spam text messages are all-too-common. The complaint noted, ". . . the Pew Research Center found that 69% of texters reported receiving unwanted spam text messages, while 25% reported receiving spam texts weekly." The lawsuit went on to say, "Servicing over a billion Facebook accounts worldwide, Facebook's automated systems are powerful and, when used improperly, capable of extreme invasions into the privacy of American consumers . . . . Facebook operates a sloppy system and in doing so shows complete disregard for the privacy of consumers." This release references Duguid v. Facebook (U.S. District Court, Southern District of New York, Case No. 1:14-cv-09456-SAS). About Lemberg Law The attorneys at Lemberg Law represent consumers in Fair Debt Collection Practices Act, Telephone Consumer Protection Act, and lemon law cases, among others. Sergei Lemberg can brief you about the Telephone Consumer Protection Act, remedies available to consumers who are victims of spam text messages, and other relevant issues. FACEBOOK INC: Attempts to Preserve Rulings in Ad-Click Suits ------------------------------------------------------------ Ross Todd, writing for The Recorder, reports that in back-to-back arguments before an appellate panel on Dec. 9, lawyers for Facebook Inc. and Google Inc. attempted to preserve rulings denying class certification in cases challenging the companies' fees for online advertising. Plaintiffs firms accuse Facebook of charging for invalid clicks in its pay-per-click advertising system and claim Google's Adwords keyword advertising program inappropriately charged to place ads on error pages and so-called parked domains. The lawsuits, which target major revenue streams at the web giants, met similar fates in district court in 2012. In January of that year, U.S. District Judge Edward Davila of the Northern District of California declined to certify a class in the Google case, concluding Google's dynamic pricing model made the calculation of restitution too individualized for class treatment. Judge Davila's Northern District colleague Phyllis Hamilton reached a similar conclusion in the Facebook pay-per-click cases in March 2012. Ms. Hamilton found there was no way to parse the millions of clicks in the purported class to sort allegedly invalid clicks from the valid ones and wrote that plaintiffs failed to establish that contract terms allegedly breached by Facebook were part of all the underlying contracts. Circuit judges A. Wallace Tashima and Richard Paez of the U.S. Court of Appeals for the Ninth Circuit heard arguments on Dec. 9 challenging the two class-certification rulings. They were joined by U.S. District Judge Gordon Quist of the Western District of Michigan, sitting by designation. Judge Tashima directed his most skeptical question to Facebook's lawyer, Kristin Myles -- Kristin.Myles@mto.com -- of Munger, Tolles & Olson. "Facebook's case seems to come down to this," he said. "This subject is so technical and so complicated and we've purposely made our contract so ambiguous that no one's ever going to be able to file a class action on this. Isn't that what it comes down to?" Ms. Myles responded that company faces a "conundrum." Laying out exactly how the company determines which clicks are valid would lead people to find ways to work around the company's filters, making them ineffective. "What comes across clearly in the record is people acting in good faith" to try to provide service to advertising customers, she said. Arguing for plaintiffs in Fox Test Prep v. Facebook, 12-16601, Seeger Weiss' Jonathan Shub -- jshub@seegerweiss.com -- said nothing in Facebook's argument showed that claims would be unique to any single advertiser. "[Myles] didn't say that Coca-Cola has a different filter. If that were the case, we wouldn't be here," he said. In Levitte v. Google, 12-16752, Schubert Jonckheer & Kolbe's Miranda Kolbe argued that Google served ads to sites its own employees considered "illegitimate, spammy, shady, garbage websites." Judge Davila's ruling inappropriately based his class- certification decision on the difficulty of calculating restitution for individual plaintiffs. Google's lawyer, Cooley partner Michael Rhodes -- rhodesmg@cooley.com -- responded that Judge Davila considered three proposed formulas from the plaintiffs and found that some advertisers actually profited from ad placement on the sites in question. The plaintiffs claims showed "too many individual issues rather than common issues," Rhodes argued, adding that Judge Davila's factual findings are subject to deference. FIRST COMMONWEALTH: Jan. Trial in Market Rate Savings IRA Case -------------------------------------------------------------- First Commonwealth Financial Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2014, for the quarterly period ended September 30, 2014, that the Market Rate Savings IRA Litigation is scheduled for trial on January 20, 2015. McGrogan v. First Commonwealth Bank was filed as a class action on January 12, 2009, in the Court of Common Pleas of Allegheny County, Pennsylvania. The action alleges that First Commonwealth Bank (the "Bank") promised class members a minimum interest rate of 8% on its IRA Market Rate Savings Account for as long as the class members kept their money on deposit in the IRA account. The class asserted that the Bank committed fraud, breached its modified contract with the class members, and violated the Pennsylvania Unfair Trade Practice and Consumer Protection Law ("UTPCPL") when it resigned as custodian of the IRA Market Rate Savings Accounts in 2008 and offered the class members a roll-over IRA account with a 3.5% interest rate. Plaintiffs sought monetary damages for the alleged breach of contract, punitive damages for the alleged fraud and Unfair Trade Practice and Consumer Protection Law violations and attorney's fees. The court ruled that the IRA contract only guaranteed the 8% return until the 90-day or 18-month maturity of each instrument. The court granted class certification as to the breach of modified contract claim and denied class certification as to the fraud and Pennsylvania Unfair Trade Practice and Consumer Protection Law claims. The breach of contract claim was predicated upon a letter sent to customers in 1998 which reversed an earlier decision by the Bank to reduce the rate paid on the accounts. The letter stated, in relevant part, "This letter will serve as notification that a decision has been made to re-establish the rate on your account to eight percent (8)%. This rate will be retroactive to your most recent maturity date and will continue going forward on deposits presently in the account and on annual additions." On August 30, 2012, the Court entered an order granting the Bank's motion for summary judgment and dismissed the class action claims. The Court found that the Bank retained the right to resign as custodian of the accounts and that the act of resigning as custodian and closing the accounts did not breach the terms of the underlying IRA contract. On appeal, the Superior Court affirmed the denial of class certification to the claims of fraud in the execution and violation of the UTPCPL. The Superior Court found that none of the other issues were ripe for appeal. Jurisdiction was returned to the Court of Common Pleas where the individual fraud and UTPCPL claims of Mr. and Mrs. McGrogan are pending. Plaintiffs filed their pretrial statement on June 16, 2014, seeking $0.5 million in damages for the McGrogans and $0.8 million for their adult children beneficiaries. The Bank considers these damage claims exaggerated and otherwise invalid. The Bank has filed a motion for summary judgment, which was granted as to the claims of the adult children beneficiaries. The case is scheduled for trial on January 20, 2015. FIRST COMMONWEALTH: Discovery Starts Three Class Actions -------------------------------------------------------- First Commonwealth Financial Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2014, for the quarterly period ended September 30, 2014, that discovery in three class actions is beginning. In December 2013, three new complaints were filed by 34 former members of the McGrogan class: (1) Jarrett et al. v. First Commonwealth Bank - An action filed by eight plaintiffs on December 2, 2013 in the Westmoreland County Court of Common Pleas asserting claims for fraud in the inducement, fraud in the execution, violation of the UTPCPL, breach of fiduciary duty and promissory estoppel. (2) Young et al. v. First Commonwealth Bank - An action filed by 12 plaintiffs on December 2, 2013 in the Westmoreland County Court of Common Pleas asserting claims for fraud in the inducement, fraud in the execution, violation of the UTPCPL, breach of fiduciary duty and promissory estoppel. (3) Fisanik et. al. v. First Commonwealth Bank - An action filed by 14 plaintiffs on December 9, 2013 in the Cambria County Court of Common Pleas asserting claims for fraud in the inducement, fraud in the execution, violation of the UTPCPL, and breach of fiduciary duty. The 36 plaintiffs who have filed individual actions held Market Rate Savings IRA balances totaling approximately $4 million at the time of the Bank's resignation as custodian of the IRAs in 2008- 09. The average age of the plaintiffs at that time was 62. The Bank filed preliminary objections to the three new complaints. On July 22, 2014 the court issued an order permitting the three new cases to proceed only on theories of fraud in the execution and violation of the UTPCPL based on fraud in the execution and dismissing the claims for fraud in the inducement, breach of fiduciary duty and promissory estoppel with prejudice. Discovery in the three actions is beginning. At this time, the Bank believes the claims are without merit. FRANKLIN FINANCIAL: Bank Unit Participating in PLMBS Class Action ----------------------------------------------------------------- Franklin Financial Services Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2014, for the quarterly period ended September 30, 2014, that Farmers and Merchants Trust Company of Chambersburg (the Bank) is currently participating in a class-action lawsuit against one PLMBS servicer that centers on defective warranties and representations made as part of the underwriting process. FOREST OIL: 6 Class Suits Filed in NY Court Over Sabine Merger -------------------------------------------------------------- Forest Oil Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2014, for the quarterly period ended September 30, 2014, that the six putative shareholder class action complaints have been filed in the Supreme Court of the State of New York by purported Forest common shareholders related to the merger transaction with Sabine Oil & Gas LLC. On May 5, 2014, Forest entered into an Agreement and Plan of Merger with Sabine Oil & Gas LLC ("Sabine"), under which Forest and Sabine will combine their businesses in an all-stock transaction. Since the announcement of the Sabine transaction, six putative shareholder class action complaints have been filed in the Supreme Court of the State of New York by purported Forest common shareholders. These actions are captioned Stourbridge Investments LLC v. Forest Oil Corp., et al., Index No. 651418/2014, filed May 7, 2014; Raul, et al. v. Carroll, et al., Index No. 651446/2014, filed May 9, 2014; Rothenberg v. Forest Oil Corp., et al., Index No. 651499/2014, filed May 15, 2014; Gawlikowski v. Forest Oil Corp., et al., Index No. 651506/2014, filed May 16, 2014; Edwards v. Carroll, et al., Index No. 651523/2014, filed May 16, 2014; and Jabri v. Forest Oil Corp., et al., Index No. 651551/2014, filed May 20, 2014. On July 8, 2014, the New York Court consolidated the New York actions and captioned the case In re Forest Oil Corporation Shareholder Litigation, Index No. 651418/2014, and on July 17, 2014, the New York plaintiffs filed an amended consolidated complaint (the "New York Action"). The New York Action names as defendants each of the current directors of Forest, as well as Sabine Oil & Gas LLC and certain of its affiliates and investors, and seeks, among other things, to enjoin the combination transaction or, in the event the combination transaction is consummated, to recover damages. The action alleges, among other things, that the members of the Forest board of directors breached their fiduciary duties to Forest shareholders by agreeing to the original transaction announced by Forest and Sabine on May 6, 2014 for inadequate consideration and pursuant to an inadequate process, that the revised transaction structure announced by Forest and Sabine on July 10, 2014 was structured to deprive Forest shareholders of their right to vote on the combination transaction, and that the disclosures made by Forest in the Schedule 14A proxy statement filed on July 16, 2014 were inadequate. The New York Action also includes allegations challenging the company's sale of its Texas Panhandle assets to Templar Energy, which closed on November 25, 2013. The New York Action further alleges that Sabine Oil & Gas LLC and certain of its affiliates aided and abetted these alleged breaches. The parties are currently engaged in expedited discovery in connection with the claims. Forest Oil is an independent oil and gas company engaged in the acquisition, exploration, development, and production of oil, natural gas, and natural gas liquids ("NGLs") primarily in North America. FOREST OIL: Colorado Court Administratively Closed Class Action --------------------------------------------------------------- Forest Oil Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2014, for the quarterly period ended September 30, 2014, that a shareholder class action was administratively closed by a court in Colorado. One putative shareholder class action complaint has been filed in the United States District Court for the District of Colorado by two purported Forest common shareholders (the "Colorado Action"), captioned Olinatz v. Forest Oil Corp., et al., Case No. 1:14-cv- 01409, filed May 19, 2014. The plaintiffs in the Colorado Action filed an amended complaint on June 13, 2014. The Colorado action names as defendants each of the current directors of Forest, as well as Forest, Sabine Oil & Gas Holdings LLC, and certain of their respective affiliate entities. The action seeks, among other things, to enjoin the original transaction or, in the event the original transaction is consummated, to recover damages. The action alleges, among other things, that the members of the Forest board of directors breached their fiduciary duties to Forest shareholders by agreeing to sell Forest transaction for inadequate consideration and pursuant to an inadequate process, and that certain of the entity defendants, including Sabine Holdings and certain of its affiliates, aided and abetted these alleged breaches. In addition, the Colorado Action further alleges violations of the federal securities laws in connection with Forest's disclosures in the Form S-4 registration statement filed by Forest on May 29, 2014. Plaintiff in the Colorado Action is coordinating with the plaintiffs in the New York Action, and there have been no separate substantive proceedings in the Colorado Action. On October 14, 2014, the Colorado Action was administratively closed by the Colorado Court. Forest Oil is an independent oil and gas company engaged in the acquisition, exploration, development, and production of oil, natural gas, and natural gas liquids ("NGLs") primarily in North America. FOREST OIL: Date for Oral Arguments Not Yet Set in Appeal --------------------------------------------------------- Forest Oil Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2014, for the quarterly period ended September 30, 2014, that a date for oral arguments has not yet been set in an appeal related to the lawsuit styled In re Lone Pine Resources Inc. On March 26, 2014, the judge overseeing the lawsuit styled In re Lone Pine Resources Inc. (formerly referenced as Augenbaum v. Lone Pine Resources Inc. et al.), granted defendants' motion to dismiss, with prejudice, for failure to state a claim upon which relief may be granted. The original claim was brought on May 25, 2012, as a purported class action in the Supreme Court of the State of New York, New York County against Forest, Lone Pine, certain of Lone Pine's current and former directors and officers (the "Individual Defendants"), and certain underwriters (the "Underwriter Defendants") of Lone Pine's initial public offering (the "IPO"), which was completed on June 1, 2011. The class action was subsequently removed to the United States District Court for the Southern District of New York. The complaint alleged that Lone Pine's registration statement and prospectus issued in connection with the IPO contained untrue statements of material fact or omitted to state material facts relating to forest fires that occurred in Northern Alberta in May 2011, the rupture of a third- party oil sales pipeline in Northern Alberta in April 2011, and the impact of those events on Lone Pine, that the alleged misstatements or omissions violated Section 11 of the Securities Act of 1933 (the "Securities Act"), and that Lone Pine, the Individual Defendants, and the Underwriter Defendants are liable for such violations. (The complaint was subsequently amended to drop the allegation regarding the forest fires.) The complaint further alleged that the Underwriter Defendants offered and sold Lone Pine's securities in violation of Section 12(a)(2) of the Securities Act, and the putative class members sought rescission of the securities purchased in the IPO that they continued to own and rescissionary damages for securities that they had sold. Finally, the complaint asserted a claim against Forest under Section 15 of the Securities Act, alleging that Forest was a "control person" of Lone Pine at the time of the IPO. The complaint alleged that the putative class, which purchased shares of Lone Pine's common stock pursuant and/or traceable to Lone Pine's registration statement and prospectus, was damaged when the value of the stock declined in August 2011. Lone Pine's obligation to indemnify Forest, the Individual Defendants, and the Underwriter Defendants, was extinguished in Lone Pine's bankruptcy proceedings. Plaintiffs appealed the decision on April 28, 2014, and briefing was completed on August 5, 2014, and appellate briefs have been submitted. A date for oral arguments has not yet been set. Forest Oil is an independent oil and gas company engaged in the acquisition, exploration, development, and production of oil, natural gas, and natural gas liquids ("NGLs") primarily in North America. GARDEN FRESH: Faces "Lopez" Suit Over Failure to Pay Overtime ------------------------------------------------------------- Yendira Lopez, individually and on behalf of other employees similarly situated v. Garden Fresh Mundelein, LLC, and Adi Mor, Case No. 1:14-cv-10058 (N.D. Ill., December 15, 2014), is brought against the Defendants for failure to pay overtime wages for hours worked in excess of 40 hours in a workweek. The Defendants own and operate a grocery store within the State of Illinois. The Plaintiff is represented by: Raisa Alicea, Esq. CONSUMER LAW GROUP, LLC 6232 N Pulaski Rd., Ste. 200 Chicago, IL 60646 Telephone: (312) 800-1017 E-mail: ralicea@yourclg.com GENERAL MOTORS: Fla. Court Allows "Carriuolo" Suit to Proceed ------------------------------------------------------------- Geri Siano Carriuolo, et al., sued General Motors, LLC, for misrepresentations made in connection with their purchase of new cars. The Plaintiffs allege that they bought new 2014 Cadillac CTS sedans from third-party General Motors dealerships. The Defendant filed a motion to dismiss, which Judge James I. Cohn of the U.S. District Court for the Southern District of Florida denied in an order dated Dec. 11, 2014. The case is GERI SIANO CARRIUOLO, et al., Plaintiffs, v. GENERAL MOTORS LLC, Defendant, CASE NO. 14-61429-CIV-COHN/SELTZER (S.D. Fla.). A full-text copy of Judge Cohn's Decision is available at http://is.gd/eCtHAZfrom Leagle.com. Geri Siano Carriuolo, Plaintiff, represented by Donald R. Fountain, Jr., Esq. -- dfountain@clarkfountain.com -- at Clark, Fountain, La Vista, Prather, Keen & Littky-Rubin, LLP & Jeffrey M. Liggio, Esq. -- jliggio@liggiolaw.com -- at Liggio Benrubi. Peter Bracchi, Plaintiff, represented by Jeffrey M. Liggio, Liggio Benrubi. General Motors LLC, Defendant, represented by David G. Radlauer, Esq. -- dradlauer@joneswalker.com -- Jones Walker Waechter Poitevent Carrere & Denegre LLP, Laurie Michele Riley, Esq. -- lriley@joneswalker.com -- Jones Walker Waechter Poitevent Carrere & Denegre LLP, & Thomas A. Casey, Jr., Esq. -- tcaseyjr@joneswalker.com -- at Jones Walker Waechter Poitevent Carrere & Denegre LLP. HHH MOTORS: Appeals Court Affirms Denial of Arbitration ------------------------------------------------------ Nathan Hale, writing for Law360, reports that a Florida appeals court on Dec. 3 affirmed a lower court's determination that a putative class action brought against a car dealership is not subject to arbitration on the grounds that a sales contract superseded a retail purchasing agreement with an arbitration clause signed just before. The per curiam opinion from the First District denied a motion for rehearing and certification from appellant HHH Motors LLP, which does business as Hyundai of Orange Park, while granting its motion for a written opinion. Customers Jenny Lee Holt and Kristopher P. Holt filed the class action alleging violations of Florida's Deceptive and Unfair Trade Practice Act in regard to electronic titling/registration filing fees charged by HHH Motors, according to the opinion. HHH Motors moved to compel arbitration based on a provision in the retail purchase agreement signed in 2010 for the Holts' purchase of a 2007 Dodge Ram truck, but the trial court denied the motion, concluding that a retail installment sales contract containing a merger clause and signed immediately after the purchase agreement constituted the formation of a new contract. The installment contract, to finance the purchase and which lacked an arbitration clause, superseded the purchase agreement, the opinion says. "And because the [financing contract] appeared facially complete, no parol evidence could be considered to address alleged ambiguities," the court added. Public Justice Executive Director Paul Bland, who argued the plaintiffs' case, said the ruling rightly held that there must be an agreement between the parties to submit to arbitration and that the court, not an arbitrator, must make that determination. "The car dealer here wants to skip over these basic protections -- they want to jump right into forcing people into arbitration whether there is an agreement or not," Bland told Law360. HHH Motors had argued that it met all of the elements needed to compel arbitration, holding that its right to arbitration vested when the purchase agreement was signed and was not affected by any subsequent pacts. As in the trial court's decision, however, the appeals panel points to language in the financing agreement that said, "[B]y signing this contract, you choose to buy the vehicle on credit under the agreements on the front and back of this contract." It agreed with the trial court's conclusion that the financing agreement and its merger clause was "sufficiently unequivocal" to negate the purchase agreement's arbitration clause. "HHH Motors is being held to the language of its own concurrently signed documents," the First District's opinion said. "If it intended for credit buyers to be subject to the arbitration clause, then it could have said so in the [financing agreement], but did not." The appeals panel did not dispute HHH Motors' argument that two or more documents executed concurrently by the same parties in the same transaction should be read and construed together, but it said there was no dispute that the financing agreement was signed second and found no legal error in the trial court's conclusions. The First District also rejected HHH Motors' argument in its motion for rehearing that its ruling conflicts with the Fourth District's decision in Morse Operations Inc. v. Sonar Radio Corp., noting that the financing agreement in that case did not feature a merger clause. "The absence of a merger clause justified a different result, there being 'no support in the record for the trial court's conclusion that the financing agreement superseded the underlying contract for this transaction,' "the appeals panel said. Seeing no conflict, the First District declined to certify the matter as a question of great public importance, but said it was providing its opinion to explain its reasoning for potential future use in that area of the law. Judges Bradford L. Thomas, Simone Marstiller and Scott Makar sat for the First District. HHH Motors is represented by Jon Michael Lindell of Lindell & Farson PA and Michael J. Korn -- mkorn@kornzehmer.com -- of Korn & Zehmer PA. The plaintiffs are represented by William C. Bielecky, Deanna L. Blair of Jacksonville Area Legal Aid, Paul Bland of Public Justice and Brian W. Warwick of Varnell & Warwick PA. The case is HHH Motors LLP v. Holt et al., case number 1D13-4397, in the First District Court of Appeal of Florida. HILLMAN GROUP: Faces "Santos" Suit in Cal. Over Violation of ADA ---------------------------------------------------------------- Maria Santos, on behalf of herself and all others similarly situated v. The Hillman Group, Inc. and Wal-Mart Stores, Inc., Case No. 2:14-cv-09571 (C.D. Cal., December 15, 2014), is brought against the Defendants for violations of the Americans With Disabilities Act. The Hillman Group, Inc. owns, operates and maintains Hillman Group key duplicating kiosks at thousands of places of public accommodation, including Wal-Mart's supermarkets, nationwide. Wal-Mart Stores, Inc. owns, operates, and maintains over 4,900 stores and clubs nationwide and has approximately 298 total retail units in California. The Plaintiff is represented by: Michael T. Harrison, Esq. THE SANTA CLARITA FIRM 25876 The Old Road, #304 Stevenson Ranch, CA 91381 Telephone: (661) 257-2854 Facsimile: (661) 257-3068 E-mail: Mharrison30@aol.com HOME DEPOT: Faces First Financial Suit Over Alleged Data Breach --------------------------------------------------------------- First Financial Credit Union, individually and on behalf of a class of similarly situated financial institutions v. The Home Depot, Inc., Case No. 1:14-cv-03975 (N.D. Ga., December 15, 2014), is brought against the Defendant for failure to provide adequate security and protection for its computer systems containing customers' financial and personal data. The Home Depot, Inc. operates a chain of retail stores that sell a wide variety of merchandise, including tools, home goods, and construction supplies. The Plaintiff is represented by: Thomas A. Withers, Esq. GILLEN WITHERS & LAKE, LLC 8 East Liberty Street Savannah, GA 31412 Telephone: (912) 447-8400 Facsimile: (912) 233-6584 E-mail: twithers@gwllawfirm.com - and - Anthony C. Lake, Esq. GILLEN WITHERS & LAKE, LLC One Securities Centre 3490 Piedmont Road, N.E., Suite 1050 Atlanta, GA 30305 Telephone: (770) 842-9700 Facsimile: (404) 842-9750 - and - Gary F. Lynch, Esq. Edwin J. Kilpela, Esq. Jamisen Etzel, Esq. CARLSON LYNCH SWEET & KILPELA, LLP PNC Park 115 Federal Street, Suite 210 Pittsburgh, PA 15212 Telephone: (412) 322-9243 Facsimile: (412) 231-0246 E-mail: glynch@carlsonlynch.com ekilpela@carlsonlynch.com jetzel@carlsonlynch.com HOME DEPOT: Faces Prepaid Technologies Suit Over Data Breach ------------------------------------------------------------ Prepaid Technologies LLC, individually, and on behalf of all others similarly situated v. Home Depot U.S.A., Inc., a Delaware corporation, Case No. 1:14-cv-03983 (N.D. Ga., December 15, 2014), is brought against the Defendant for failure to provide adequate security and protection for its computer systems containing customers' financial and personal data. The Home Depot, Inc. operates a chain of retail stores that sell a wide variety of merchandise, including tools, home goods, and construction supplies. The Plaintiff is represented by: Ranse M. Partin, Esq. CONLEY GRIGGS PARTIN LLP 1380 West Paces Ferry Road, N.W., Suite 2100 Atlanta, GA 30327 Telephone: (404) 467-1155 Facsimile: (404) 467-1166 E-mail: Ranse@conleygriggs.com - and - Robert N. Kaplan, Esq. Frederic S. Fox, Esq. KAPLAN FOX & KILSHEIMER LLP 850 Third Avenue, 14th Floor New York, NY 10022 Telephone: (212) 687-1980 Facsimile: (212) 687-7714 E-mail: rkaplan@kaplanfox.com ffox@kaplanfox.com - and - Laurence D. King, Esq. Linda M. Fong, Esq. KAPLAN FOX & KILSHEIMER LLP 350 Sansome Street, Suite 400 San Francisco, CA 94104 Telephone: (415) 772-4700 Facsimile: (415) 772-4707 E-mail: lking@kaplanfox.com lfong@kaplanfox.com - and - R. Bryant McCulley, Esq. Stuart H. McCluer, Esq. MCCULLEY MCCLUER PLLC 2113 Middle Street, Suite 208 Sullivan's Island, SC 29482 Telephone: (205) 238-6757 Facsimile: (662) 236-1401 E-mail: bmcculley@mcculleymccluer.com smccluer@mcculleymccluer.com INTEGRITY STAFFING: May Not Pay Time Spent for Security Checks -------------------------------------------------------------- Warehouse workers who filled Amazon orders do not deserve payment for time spent undergoing security checks, the Supreme Court ruled on December 9, reports Barbara Leonard at Courthouse News Service. Jesse Busk and Laurie Castro hoped to represent a class in the federal complaint they brought against Integrity Staffing Solutions in 2010. Both worked in Integrity's Las Vegas-area warehouses where they filled orders for Amazon.com. Every day at quitting time, Integrity forced the workers to wait in a long line to undergo a thorough search and metal-detector scan. Integrity said that the searches were necessary to cut down on employee theft. The checks could take nearly half an hour at the end of the working day and the employees were not paid for the time. Employees also were not paid for 30-minute lunches, 10 minutes of which include walking to and from a cafeteria and going through a security check. Though Busk and Castro claimed that the unpaid security sweeps violated the Fair Labor Standards Act (FLSA), U.S. District Judge Roger Hunt found that the plaintiffs failed to state a valid claim for compensation. Though the Portal-to-Portal Act amended FLSA to generally preclude compensation for activities that are "preliminary" or "postliminary" to the "principal activity or activities" that the employee "is employed to perform," the 9th Circuit found last year that Integrity's screenings may be compensable. Integrity petitioned the Supreme Court for a writ of certiorari, winning a unanimous and summary reversal on December 9. The security screenings at issue here are noncompensable postliminary activities. To begin with, the screenings were not the "principal activity or activities which [the] employee is employed to perform." 29 U.S.C. Section 254(a)(1). Integrity Staffing did not employ its workers to undergo security screenings, but to retrieve products from ware-house shelves and package those products for shipment toAmazon customers. "The security screenings also were not 'integral and indispensable' to the employees' duties as warehouse workers," Justice Clarence Thomas wrote for the court. The decision continues that "an activity is not integral and indispensable to an employee's principal activities unless it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform those activities." "The screenings were not an intrinsic element of retrieving products from warehouse shelves or packaging them for shipment," Thomas added. "And Integrity Staffing could have eliminated the screenings altogether without impairing the employees' ability to complete their work." Justice Elena Kagan joined Justice Sonia Sotomayor in a brief concurring opinion. "As both Department of Labor regulations and our precedent make clear, an activity is 'indispensable' to another, principal activity only when an employee could not dispense with it without impairing his ability to perform the principal activity safely and effectively," Sotomayor wrote. "Thus, although a battery plant worker might, for example, perform his principal activities without donning proper protective gear, he could not do so safely; likewise, a butcher might be able to cut meat without having sharpened his knives, but he could not do so effectively. Here, by contrast, the security screenings were not 'integral and indispensable' to the employees' other principal activities in this sense. The screenings may, as the Ninth Circuit observed below, have been in some way related to the work that the employees performed in the warehouse, but the employees could skip the screenings altogether without the safety or effectiveness of their principal activities being substantially impaired." Sotomayor also agreed that Integrity's searches qualified as "preliminary or postliminary" activities rather than principal. "The searches were part of the process by which the employees egressed their place of work, akin to checking in and out and waiting inline to do so -- activities that Congress clearly deemed to be preliminary or postlimininary," she wrote. The case is Integrity Staffing Solutions, Inc. v. Busk, et al., Case No. 13-433, in the United States Court of Appeals for the Ninth Circuit. JIDD MOTORS: Faces "Hood" Suit Over Failure to Pay Overtime Wages ----------------------------------------------------------------- Christopher Hood, on behalf of himself and all other similarly situated persons, known and unknown v. Jidd Motors, Inc., Case No. 1:14-cv-10024 (N.D. Ill., December 15, 2014), is brought against the Defendant for failure to pay overtime wages for hours worked in excess of 40 in a week. Jidd Motors, Inc. is a pre-owned car dealer in Des Plaines, Illinois. The Plaintiff is represented by: Maureen Ann Salas, Esq. Sarah Jean Arendt, Esq. Zachary Cole Flowerree, Esq. Douglas M. Werman, Esq. WERMAN SALAS P.C. 77 W. Washington, Suite 1402 Chicago, IL 60602 Telephone: (312) 419-1008 E-mail: msalas@flsalaw.com sarendt@flsalaw.com zflowerree@flsalaw.com dwerman@flsalaw.com KATHARYN B. DAVIS: Missouri Court Dismisses "Janson" Suit --------------------------------------------------------- Magistrate Judge Noelle C. Collins of the U.S. District Court for the Eastern District of Missouri, Eastern Division, granted defendant Katharyn B. Davis, LLC's motion to dismiss the purported class action complaint filed by Christopher F. Janson pursuant to the Fair Debt Collection Practices Act. The Plaintiff alleges that Section 1692e of the FDCPA prohibits false, deceptive, or misleading representations in connection with the collection of a debt, and Section 1692f prohibits unfair or unconscionable means to collect or attempt to collect a debt; that Mo. Rev. Stat. Section 535.020 requires that rent-and-possession lawsuits be verified by affidavit; that Defendant Katharyn B. Davis, LLC, a law firm, filed a false affidavit when filing a rent-and-possession lawsuit in State court against Janson; and that, therefore, the Law Firm violated the FDCPA. Magistrate Janson ruled that the Plaintiff has failed to allege facts, which plausibly could establish that the affidavit was misleading within the purview of the FDCPA and that the affidavit effectively conveyed inaccurate facts. Given that the Plaintiff has failed to state a claim in Count 1, the court additionally found that Court 2, seeking class certification, is moot and that, therefore, Count 2 should be dismissed. The case is CHRISTOPHER F. JANSON, Plaintiff, v. KATHARYN B. DAVIS, LLC, Defendant, CASE NO. 4:14CV709NCC (E.D. Mo.). A full- text copy of Magistrate Janson's Decision is available at http://is.gd/4a3d3Hfrom Leagle.com. Christopher F. Janson, Plaintiff, represented by James J. Simeri, Esq. -- james.simeri@simerilaw.com -- at SIMERI LAW LLC. Katharyn B. Davis LLC, Defendant, represented by Terrance J. Good, Esq. -- tjgood@lashlybaer.com -- at LASHLY AND BAER, P.C.. KEYSTONE MERCY: Court Remands Flash Drive Suit to Trial Court ------------------------------------------------------------- Max Mitchell, writing for The Legal Intelligencer, reports that the state Superior Court has vacated a judge's decision not to grant class certification on claims under the Unfair Trade Practices and Consumer Protection Law to people whose information was stored on an insurance carrier's unencrypted flash drive that was lost in 2010. A unanimous three-judge panel of the court sent the matter back to the trial court to properly consider whether the certification could be approved under the catch-all provision of the UTPCPL. The panel determined, meanwhile, that the trial judge properly denied certification on negligence claims due to a lack of typicality of claims of potential class members. Relying on a 2013 Superior Court decision, now pending before the state Supreme Court, Judge Sallie Updyke Mundy, who wrote the opinion in Baum v. Keystone Mercy Health Plan, said that, under the UTPCPL claim, the lead plaintiffs did not need to show justifiable reliance to the extent that fraud and deceptive conduct was alleged. The complaint, Judge Mundy said, "specifically alleged both fraudulent and deceptive conduct." She said the trial court's conclusion, that the lead plaintiff's "motion to certify his UTPCPL claim as a class action failed due to issues regarding reliance, was not correct to the extent deceptive conduct was alleged." Because the court dismissed the claim based on the lack of justifiable reliance, Judge Mundy remanded the case for further findings and conclusions regarding Pennsylvania Rule of Civil Procedure 1702, which addresses the prerequisites to a class action. According to Judge Mundy, Avrum M. Baum, whose daughter is Chaya Baum, a special-needs minor, sued the insurance carrier Keystone Mercy Health Plan after an unencrypted flash drive containing data from Keystone's computer was misplaced and never found. The flash drive had private health information about Chaya Baum that was protected from disclosure under the company's practices, as well as federal and state laws and privacy rules. The drive, according to Judge Mundy, contained partial Social Security numbers of 801 people and seven complete Social Security numbers. It also contained medical identification numbers, clinical health screening information, and names and addresses of more than 283,000 people, Mundy said. Keystone sent out notices regarding the loss to more than 285,000 people. Judge Mundy said while Keystone had offered credit monitoring to some of the people involved, it did not offer the service to the Baums. The Baums also never followed up with Keystone regarding the notice, Judge Mundy said. Along with an alleged violation of the UTPCPL, Avrum Baum's suit included allegations of negligence and negligence per se. He filed a motion for class certification in October 2012. During a hearing on the class certification issue, Baum called Murali Krishna Chemuturi, a computer software expert, who testified that, using Chaya Baum's member ID, he was able to access her health information from database files. However, on cross-examination, Mundy said, Mr. Chemuturi said he was only able to obtain Baum's member ID through counsel, as he was given a photocopy of her identity card, which contained her ID number and other health information. Avrum Baum, Judge Mundy added, also admitted that neither his nor his daughter's Social Security information was on the flash drive. Concluding that the expert testimony showed that the loss of the flash drive created no risk of identity theft, and that Baum failed to show reliance in his UTPCPL claim, the trial court denied class certification, Judge Mundy said. On appeal, Judge Mundy found that the Baums failed to satisfy the typicality requirement for class certification under the negligence claims. The expert, she said, did not show that someone finding the lost drive would be able to identify Chaya Baum or the vast majority of people's information on the drive. However, regarding the UTPCPL claim, Judge Mundy said the trial court failed to take into account the Superior Court's 2013 decision in Grimes v. Enterprise Leasing Co. of Philadelphia regarding justifiable reliance. Although that case is currently on appeal to the Supreme Court and was argued before the justices in September, Judge Mundy said the Superior Court's holding indicated that Baum did not need to show reliance regarding the fraud and deceptive conduct claims. "This court has recently held that, to the extent a complaint alleges deceptive conduct under the catch-all provision of the UTPCPL, a plaintiff need not show justifiable reliance to recover," she said. Judge Mundy vacated the trial court's decision regarding the UTPCPL claim. "It is not for this court in the first instance to make findings and conclusions regarding this or the other Rule 1702 factors," Judge Mundy said. "Therefore, we conclude the best course of action is to vacate in part and remand to the trial court." Mark D. Smilow -- msmilow@weisslawllp.com -- of Weiss Law in New York said he thought the plaintiffs were "very pleased with the reversal." Rawle & Henderson attorney William C. McGovern -- wmcgovern@rawle.com -- said one of the most important aspects of the case was that there is no indication anyone's privacy was ever compromised. "There's no indication the missing thumb drive was used by anyone unauthorized to have it," Mr. McGovern said. KWLT LLC: Faces "Alvarez" Suit Over Failure to Pay Overtime ----------------------------------------------------------- Elaine Alvarez, on behalf of herself and similarly situated individuals v. KWLT, LLC d/b/a Platinum Plus, Case No. 5:14-cv- 07075 (E.D. Pa., December 15, 2014), is brought against the Defendant for failure to pay overtime wages in violation of the Fair Labor Standard Act. KWLT, LLC owns and operates a nightclub located at 1251 Airport Road, Allentown, PA 18109. The Plaintiff is represented by: R. Andrew Santillo, Esq. WINEBRAKE & SANTILLO, LLC Twining Office Center Suite 211, 715 Twining Road Dresher, PA 19025 Telephone: (215) 884-2491 Facsimile: (215) 884-2492 E-mail: asantillo@winebrakelaw.com LAZZARI FUEL: To Pay $4.6-Mil. to Settle Federal Antitrust Suit --------------------------------------------------------------- Courthouse News Service reports that three mesquite charcoal companies will pay $4.6 million to settle a federal antitrust suit accusing them of overcharging restaurants for lump charcoal. U.S. District Judge William Alsup on December 4 tentatively granted a settlement in Il Fornaio (America) Corp. et al. v. Lazzari Fuel Co. et al. The defendants, and their owners, were accused of overcharging customers more than $8 million on millions of pounds of mesquite charcoal. Under the settlement, Chef's Choice Mesquite Charcoal will pay $2.2 million, California Charcoal and Firewood $1.55 million, and Lazzari Fuel $825,000 -- for a total of $4,575,000. The class accused the defendants of overcharging them a combined $8.26 million on 306 million pounds of mesquite charcoal. The lower penalty for Lazzari Fuel is due its "weak financial condition" and equals more than 82 percent of its total equity, Alsup wrote. The defendants must deposit all of the settlement funds into a trust account by Dec. 15, 2015. Lazzari Fuel and Chef's Choice can make several payments over the next year while California Charcoal must pay its settlement within 90 days of the preliminary approval, Alsup ruled. Once the companies pay their settlements, they no longer will be liable for any class, individual or other claims regarding the sale of mesquite lump charcoal, Alsup said. The tentative settlement saves money on the substantial "risk, expense, and complexity of continued litigation and trial" and enables about 1,500 class members to collect settlement money sooner and avoid the cost and risk of going to trial, Alsup said. The class action commenced in November 2013 on behalf of "all persons and entities in the United States who, between Jan. 1, 2000, and Sept. 30, 2011, directly purchased mesquite lump charcoal from any defendant." The class defines mesquite lump charcoal as charcoal derived from the mesquite tree and sold for food-service or restaurant use. Named plaintiffs were Il Fornaio, Oliveto Partners and The Famous Enterprise Fish Company of Santa Monica. Named as defendants are the three companies and their owners Richard Morgen, Robert Colbert, Marvin Ring and William W. Lord. Lord, who owns Chef's Choice, in 2012 pleaded guilty to violating the Sherman Act, paid a $100,000 fine and served time in prison, according to Alsup's ruling. The case is Il Fornaio (America) Corporation, Oliveto Partners, Ltd. and The Famous Enterprise Fish Company of Santa Monica, Inc., on behalf of themselves and all others similarly situated v. Lazzari Fuel Company, LLC, California Charcoal and Firewood, Inc., Chef's Choice Mesquite Charcoal, Richard Morgen, Robert Colbert, Marvin Ring, and William W. Lord, Case No. C 13-05197 WHA, in the U.S. District Court for the Northern District of California. The case is Il Fornaio (America) Corporation, Oliveto Partners, Ltd. and The Famous Enterprise Fish Company of Santa Monica, Inc., on behalf of themselves and all others similarly situated v. Lazzari Fuel Company, LLC, California Charcoal and Firewood, Inc., Chef's Choice Mesquite Charcoal, Richard Morgen, Robert Colbert, Marvin Ring, and William W. Lord, Case No. C 13-05197 WHA, in the United States District Court for the Northern District of California. A copy of the Court's Dec. 4 Tentative Order is available at http://is.gd/BGbF5Hfrom Leagle.com. LVNV FUNDING: Illinois Court Certifies "Casso" Suit --------------------------------------------------- Plaintiff, Pamela Casso, brought an action against Defendants, LVNV Funding, LLC, Resurgent Capital Services LP, and Alegis Group LLC, for alleged violations of the Fair Debt Collection Practices Act, 15 U.S.C. Section 1692(e). Casso moves for class certification. In a memorandum opinion and order dated Dec. 10, 2014, Judge John W. Darrah of the U.S. District Court for the Northern District of Illinois, Eastern Division, granted Casso's Motion, after finding that Casso has satisfied the requirements of Fed. R. Civ. P. 23(a). The case is PAMELA CASSO, on behalf of plaintiff and class, Plaintiff, v. LVNV FUNDING, LLC; RESURGENT CAPITAL SERVICES LP; and ALEGIS GROUP LLC, Defendants, CASE NO. 12-CV-7328 (N.D. Ill.). A full-text copy of Judge Darrah's Decision is available at http://is.gd/rhvAtCfrom Leagle.com. Pamela Casso, on behalf of plaintiff and a class, Plaintiff, represented by Daniel A. Edelman, Edelman, Combs, Latturner & Goodwin LLC, Cathleen M. Combs, Edelman, Combs, Latturner & Goodwin LLC, James O. Latturner, Edelman, Combs, Latturner & Goodwin LLC, Rebecca A. Cohen, Edelman, Combs, Latturner & Goodwin LLC, Sharon Goott Nissim, Edelman, Combs, Latturner & Goodwin, Llc & Tiffany Nicole Hardy, Edelman, Combs, Latturner & Goodwin LLC. LVNV Funding, LLC, Defendant, represented by James A. Rolfes, Esq. -- jrolfes@reedsmith.com -- Reed Smith LLP, David Ackland Maas, Esq. -- dmaas@reedsmith.com -- Reed Smith Llp & Timothy Robert Carraher, Esq. -- tcarraher@reedsmith.com -- at Reed Smith LLP. Resurgent Capital Services LP, Defendant, represented by James A. Rolfes, Reed Smith LLP, David Ackland Maas, Reed Smith Llp & Timothy Robert Carraher, Reed Smith LLP. Alegis Group LLC, Defendant, represented by James A. Rolfes, Reed Smith LLP, David Ackland Maas, Reed Smith Llp & Timothy Robert Carraher, Reed Smith LLP. MARS INC: Calif. Court Grants Bid to Stay "Gustavson" Suit ---------------------------------------------------------- Defendant Mars, Inc., filed a motion to stay the putative action lawsuit styled PHYLLIS GUSTAVSON, Plaintiff, v. MARS, INC., et al., Defendant, CASE NO. 13-CV-04537-LHK (N.D. Calif.), pending the Ninth Circuit's decision in Jones v. ConAgra Foods, Inc., No. 14-16327 (9th Cir. filed July 14, 2014). In an order dated Dec. 10, 2014, Judge Lucy H. Koh of the U.S. District Court for the Northern District of California granted the Defendant's motion to stay the proceeding, concluding that it would best serve the interests of the parties and judicial economy to grant the Defendant's motion to stay these proceedings. A full-text copy of Judge Koh's Decision is available at http://is.gd/eDb10Cfrom Leagle.com. Phyllis Gustavson, Plaintiff, represented by J. Price Coleman, Coleman Law Firm & Ben F. Pierce Gore, Pratt & Associates. Mars, Inc., Defendant, represented by Stephen David Raber, Esq. -- sraber@wc.com -- Williams & Connolly LLP, David Michael Horniak, Esq. -- dhorniak@wc.com -- Williams & Connolly, LLP, Joelle Sue Perry, Esq. -- jperry@wc.com -- Williams & Connolly LLP & Richmond T Moore, Esq. -- rtmoore@wc.com -- at Williams and Connolly LLP. MARS CHOCOLATE NORTH AMERICA, LLC, Defendant, represented by Stephen David Raber, Williams & Connolly LLP, David Michael Horniak, Williams & Connolly, LLP, Joelle Sue Perry, Williams & Connolly LLP & Richmond T Moore, Williams and Connolly LLP. MID-ATLANTIC HEALTH: Fails to Pay Workers Overtime, Suit Claims --------------------------------------------------------------- Aiah Komba, on behalf of himself and those similarly situated v. Mid-Atlantic Health Care, LLC, County of Montgomery, and John Does 1-10, Case No. 2:14-cv-07104 (E.D. Pa., December 15, 2014), is brought against the Defendants for failure to pay proper overtime compensation in violation of the Fair Labor Standard Act. Mid-Atlantic Health Care, LLC owns and operates a skilled nursing and rehab facility. County of Montgomery is a municipality in Pennsylvania. The Plaintiff is represented by: Matthew D. Miller, Esq. SWARTZ SWIDLER LLC 1101 Kings Highway North, Suite 402 Cherry Hill, NJ 08034 Telephone: (856) 685-7420 E-mail: mmiller@swartz-legal.com MIDAMAR CORP: Sued Over Beef Product False Advertising ------------------------------------------------------ Ryan J. Foley, writing for The Associated Press, reports that federal prosecutors say a food supplier falsely marketed beef products to Muslims around the world as meeting strict halal standards of slaughter. An indictment alleges the Midamar Corporation in Cedar Rapids, Iowa, sold $4.9 million in beef to customers in Malaysia, Kuwait, and elsewhere that didn't follow the practices promised in its labeling and advertising. Midamar and its directors, brothers Jalel and William Aossey, are charged with conspiring to make and use false statements and documents, sell misbranded meat and commit mail and wire fraud. Also indicted is another company the brothers controlled, Islamic Services of America, one of the few organizations approved by Malaysia, Indonesia, Kuwait, and other countries to certify beef for import. Midamar is calling the charges a violation of the separation of church and state. NACOGDOCHES COUNTY: Faces "Manis" Suit Over Failure to Pay OT ------------------------------------------------------------- Leigh Manis v. Nacogdoches County Hospital District d/b/a Nacogdoches Memorial Hospital, Case No. 2:14-cv-01120 (E.D. Tex., December 15, 2014), is brought against the Defendant for failure to properly pay overtime compensation in violation of the Fair Labor Standard Act. Nacogdoches County Hospital District owns and operates a hospital located at 1204 N. Mound Street, Nacogdoches, Texas 75961-4061. The Plaintiff is represented by: Scott Coleman Skelton, Esq. SKELTON SLUSHER BARNHILL WATKINS WELLS PLLC 1616 South Chestnut Lufkin, TX 75901 Telephone: (936) 632-3381 Facsimile: (936) 632-6545 E-mail: sskelton@skeltonslusher.com NAT'L FOOTBALL: CVS Subpoenaed in Drug Misuse Class Action ---------------------------------------------------------- GoLocalProv News reports that CVS has been subpoenaed in a class action suit by former NFL players. CVS has been subpoenaed in a class action lawsuit involving over 1,300 former National Football League players regarding the use of prescription painkillers, according to the Washington Post. On November 27, the Washington Post's Sally Jenkins and Rick Maese wrote about the ongoing federal investigation into NFL painkilling practices that was "triggered by the class action lawsuit filed in federal court in May, in which more than 1,300 former players said NFL medical staffs routinely violated federal and state laws in plying them with powerful narcotics to mask injuries on game days." CVS Cited In the article Jenkins and Maese noted, "On Oct. 24, lawyers for the plaintiffs filed a discovery motion that included reference to a subpoena issued to CVS Pharmacy, seeking information about alleged irregularities in prescriptions filled for the Miami Dolphins "in the name of team trainer(s) as the 'patient(s)" and that a CVS corporate spokesperson "declined to comment or furnish any additional information on the subpoena." Jenkins and Maese continued, "According to law enforcement sources, investigators are focused less on individuals than on a broad range of alleged illegal dispensation practices in the NFL, which may facilitate addictions, abuses and pill trafficking." NEW YORK: NY AG Warns Police on Killing Unarmed Black Man --------------------------------------------------------- New York state Attorney General Eric Schneiderman won't reopen the case of Eric Garner's fatal chokehold, or look into the stairway shots that ended Akin Gurley's life. But the next time police kill an unarmed black man, Schneiderman wants that case on his desk, reports Adam Klasfeld at Courthouse News Service. Such authorization would apply only to future police killings of unarmed civilians, but not any of the infamous New York City ones that have sparked massive, daily protests for nearly a week. Thousands of people have snarled New York City streets, highways, bridges, shops and landmarks every day since a Staten Island grand jury's refusal on Dec. 3 to indict the cop who placed a fatal chokehold on Eric Garner, an unarmed black man. Millions around the world have seen a bystander's video of Garner repeating his final words, "I can't breathe," 11 times before he died, in what the city's medical examiner ruled a homicide by chokehold and compression to the chest. Although the NYPD has banned chokeholds for more than a decade, officer Daniel Pantaleo dodged charges on the first week of December for using the maneuver. Outraged New Yorkers reacted by spilling onto the streets by the thousands in protests that have not abated. Schneiderman announced December 8 that he sent New York Gov. Andrew Cuomo a letter seeking permission to probe all future police killings of unarmed civilians and, "if necessary," criminally prosecute the officers involved. "Nothing could be more critical for both the public and the police officers who work tirelessly to keep our communities safe than acting immediately to restore trust and confidence in the independence of reviews in any case involving an unarmed civilian killed by a law enforcement officer," Schneiderman said in a statement. "While several worthy legislative reforms have been proposed, the Governor has the power to act today to solve this problem. I strongly encourage him to take action now." St. Louis University law professor emeritus Roger Goldman, an expert on licensing related to police misconduct, said in a phone interview that a state sovereign has the lawful authority to empanel multiple grand juries because the principle of double- jeopardy applies only once a jury has been sworn in after an indictment. Schneiderman would not empanel another grand jury for Pantaleo for "practical" reasons, however, because a federal investigation is still pending, the attorney general's spokesman Matt Mittenthal said in a phone interview. Nor would Schneiderman's office second-guess the Brooklyn grand jury investigating the police shooting that killed the unarmed Akai Gurley in the stairwell of a housing development, Mittenthal said. Schneiderman's two-page letter to Cuomo notes that state legislators have long called for special prosecutors to handle police-brutality cases, rather than trust county prosecutors who work closely with the police they are supposed to probe. "One such bill, first introduced by Assemblyman Keith Wright in 1999 and most recently sponsored in the Senate by Senator Gustavo Rivera, would vest power in my office to investigate and prosecute any crime allegedly committed by a police officer," the letter states. "A similar measure, applicable only to offenses allegedly committed by New York City police officers, was recently introduced by Senator Kevin Parker. A third bill, sponsored by Assemblyman Nick Perry, would amend County Law section 701 to allow a judge to appoint another District Attorney or the Attorney General to act as a 'special district attorney' in criminal matters where the judge finds that the county prosecutor is 'disqualified." While Schneiderman framed his proposal around "public confidence," rather actual prosecutorial conflict-of-interest, several of the public officials quoted in Schneiderman's statement said that district-attorney bias in police-brutality cases is real. "Recent national events have raised serious questions about the ability of local prosecutors to bring charges against police officers," New York City public advocate Letitia James said in a statement. "It is unrealistic to expect district attorneys who regularly rely on local police to make cases to be absolutely impartial when investigating police misconduct." New York City Comptroller Scott Stringer, U.S. Rep. Jerrold Nadler, Brooklyn Borough President Eric Adams, Manhattan Borough President Gale Adams, and more than a dozen other city, state, and federal legislators supported the measure in separate statements. Also applauding Schneiderman's announcement, the Center for Constitutional Rights (CCR) noted that the attorney general's proposal would build upon their recent legal victory against racially biased policing. "The proposed investigation is an important complement to the Joint Remedial Process ordered by a federal court in CCR's successful class action lawsuit, Floyd v. City of New York, to reform the NYPD's racially discriminatory stop-and-frisk policing," executive director Vince Warren said in a statement. Cuomo's office did not immediately respond to a request for comment. Hours after Schneiderman's announcement, U.S. Attorney General Eric Holder amended law enforcement profiling guidance to prohibit discrimination based on "national origin, gender, gender identity, religion, and sexual orientation." The changes apply "a uniform standard to all law enforcement, national security, and intelligence activities conducted by the department's law enforcement components," Holder said. The prior guidance, from 2003, applied only to race and ethnicity in federal investigations. "The new guidance also applies to state and local law enforcement law officers who participate in federal law enforcement task forces," the Department of Justice said in a statement. NISSAN NORTH AMERICA: Sued Over Defective Vehicle Transmissions --------------------------------------------------------------- Kenai Batista, individually and on behalf of those similarly situated v. Nissan North America, Inc., Case No. 1:14-cv-24728 (S.D. Fla., December 15, 2014), arises from the sale or lease of more than one hundred thousand 2013 - 2014 Nissan Pathfinders that are equipped with defective transmissions. Nissan North America, Inc. designs, develops, manufactures, and markets Nissan vehicles in the United States, Canada, and Mexico. The Plaintiff is represented by: Ronald P. Weil, Esq. Mary Olszewska, Esq. WEIL QUARANTA MCGOVERN, P.A. 200 S. Biscayne Blvd. Suite 900 Miami, FL 33131 Telephone: (305) 372-5352 Facsimile: (305) 372-5355 E-mail: ronald@wqmlaw.net mary@wqmlaw.net - and - Richard C. Newsome, Esq. NEWSOME MELTON LLP 201 S. Orange Ave. Suite 1500 Orlando, FL 32801-3482 Telephone: (407) 648-5977 Facsimile: (407) 648-5282 E-mail: newsome@newsomelaw.com - and - F. Jerome Tapley, Esq. Hirlye R. "Ryan" Lutz III, Esq. Adam W. Pittman, Esq. CORY WATSON, P.C. 2131 Magnolia Avenue Birmingham, AL 35205 Telephone: (205) 328-2200 Facsimile: (205) 324-7896 E-mail: jtapley@cwcd.com rlutz@cwcd.com apittman@cwcd.com NORTH CAROLINA: Inmate Suit Dismissed for Failure to State Claim ---------------------------------------------------------------- Chief District Judge Frank D. Whitney dismissed the Plaintiff's complaint for failure to state a claim in OMAR R. DUNN, Plaintiff, v. LARRY DUNSTON, et al., Defendants. Plaintiff is a prisoner of the State of North Carolina, currently incarcerated at Lanesboro Correctional Institution. Plaintiff filed a class action on behalf of himself and other similarly situated prisoners at Lanesboro contending that, among others, Defendants discriminated against him by housing him on a unit that imposes standard operating procedures that are not imposed upon similarly situated inmates and that prison officials at Lanesboro violates their constitutional rights, equal protection and procedural due process rights which create conditions amounting to cruel and unusual punishment under the Eighth Amendment. Upon review of Plaintiff's complaint, Judge Whitney dismissed with prejudice Dunn's class action for failure to state a claim upon which relief may be granted and denied other requests as being moot. A copy of the Order dated October 20, 2014, is available at http://bit.ly/10wrfXQfrom Leagle.com. OVERSEAS SHIPHOLDING: Securities Class Action Fully Resolved ------------------------------------------------------------ Overseas Shipholding Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2014, for the quarterly period ended September 30, 2014, that the Company has fully and finally resolved all potential direct claims by members of the putative class of securities claimants through a settlement effectuated through the Equity Plan, which became effective on August 5, 2014. Under the terms of that settlement, the Equity Plan provides for full satisfaction of the claims of the putative class through (i) $7,000 in cash, which was paid on August 5, 2014, (ii) 15% of the net litigation recovery in the action against Proskauer, described below, (iii) $5,000 in cash, payable following the entry of a final order resolving the Proskauer action, (iv) $3,000 in cash, payable by the reorganized Company on August 5, 2015, (v) proceeds of any residual interest the Company has in certain director and officer insurance policies, and (vi) any remaining cash in the class E1 disputed claims reserve established by the Equity Plan following resolution of all other class E1 claims. The settlement proceeds will be held in escrow pending allocations and distributions to members of the putative class to be determined by the district court overseeing the Exchange Act claims. The settled claims stem from the Company's filing of a Form 8-K on October 22, 2012 disclosing that on October 19, 2012 the Audit Committee of the Board of Directors of the Company, on the recommendation of management, concluded that the Company's previously issued financial statements for at least the three years ended December 31, 2011 and associated interim periods, and for the fiscal quarters ended March 31, 2012 and June 30, 2012, should no longer be relied upon. Shortly thereafter several putative class action suits were filed in the United States District Court for the Southern District of New York (the "Southern District") against the Company, its then President and Chief Executive Officer, its then Chief Financial Officer, its then current and certain former members of its Board of the Directors, its current independent registered public accounting firm, and underwriters of the Company's public offering of notes in March 2010 (the "Offering"). The Company's former independent registered public accounting firm was later added as a defendant. Subsequent to the Company's filing for relief under Chapter 11, these suits were consolidated and the plaintiffs filed an amended complaint that does not name the Company as a defendant. The consolidated suit is purportedly on behalf of purchasers of Company securities between March 1, 2010 and October 19, 2012 and purchasers of notes in the Offering. The plaintiffs allege that documents that the Company filed with the SEC were defective, inaccurate and misleading, that the plaintiffs relied on such documents in purchasing the Company's securities, and that, as a result, the plaintiffs suffered losses. The plaintiffs assert claims under the Securities Act against all defendants and claims under the Securities Exchange Act of 1934 (the "Exchange Act") against the then former President and former Chief Financial Officer of the Company. Following additional amendments on plaintiffs' Exchange Act claims and motion to dismiss briefing, on April 28, 2014, the Southern District denied the motion to dismiss the Exchange Act claims filed by the then former President and former Chief Financial Officer on the third amended complaint. On July 2, 2014, the Southern District issued a scheduling order for discovery, and discovery has now commenced. Under the terms of the scheduling order, all discovery is to be completed by July 22, 2015. On October 21, 2014, plaintiffs moved to file a Fourth Consolidated Amended Complaint adding claims under the Exchange Act against the Company's current and former independent registered public accounting firms. At the request of plaintiffs, the Southern District adjourned the schedule related to class certification and class discovery pending resolution of the motion to file the Fourth Consolidated Amended Complaint and any motion directed against the Fourth Consolidated Amended Complaint. The plaintiffs in the Southern District action filed a proof of claim against the Company in the Bankruptcy Court. Pursuant to a settlement with such plaintiffs and the putative class on whose behalf their claim is filed, their direct claims against the Company are fully and finally resolved based on the Equity Plan treatment. Separately, certain of the defendants in the Southern District have filed claims in the Bankruptcy Court against the Company for indemnification or reimbursement based on potential losses incurred in connection with such action. Certain of those indemnification claims, asserted by former directors of the Company, have been released pursuant to the Equity Plan. In addition, the indemnification claims asserted by the Company's former underwriters have been capped at no more than $1,500, pursuant to orders of the Bankruptcy Court. All claims of the defendants in the Southern District against the Company are subordinated pursuant to Section 510(b) of the Bankruptcy Code and are classified in Class E1. Under the Equity Plan, subordinated claims against the Company are limited to recoveries from a segregated reserve of $2,000 to be funded by the Company pursuant to the Equity Plan. The Equity Plan and related confirmation order do not permit any recoveries by the defendants beyond this $2,000 cap. Any amounts remaining following full and complete satisfaction of all Class E1 claims, including claims of defendants in the Southern District, will be distributed to members of the putative class pursuant to the terms of the settlement described above. The Equity Plan and confirmation order foreclose the defendants in the Southern District from pursuing any other or further remedies against the Company. As such, management estimates the amount of its exposure with respect to the actions pending before the Southern District described above at between zero and $2,000. PARTNERS REAL ESTATE: Faces Class Suit in Ontario Superior Court ---------------------------------------------------------------- Partners Real Estate Investment Trust has been notified that a Statement of Claim dated November 28, 2014 has been issued in the Ontario Superior Court seeking certification of a class action on behalf of persons who held units of the REIT on April 1, 2014 against the former interim CEO, Ron McCowan and several other parties, including certain trustees of the REIT. Partners REIT itself has not been named as a defendant in the legal proceedings which allege that the conduct of the defendants in connection with the acquisition by the REIT of three properties from Holyrood Holdings Ltd. in April 2014 caused harm to the plaintiffs. The Holyrood transaction was rescinded by the REIT and Holyrood in October 2014. Partners has certain indemnify obligations to its trustees and officers (current and former) with respect to this claim, subject to exceptions including where it is determined that there has been a failure to act honestly and in good faith. The REIT has insurance which it expects to be applicable in these circumstances. Given that the REIT has not been named in the litigation, the REIT does not believe it will be material to its business and affairs. About Partners REIT Partners REIT is a growth-oriented real estate investment trust focused on the expansion and management of a portfolio of 36 retail and mixed-use community and neighborhood shopping centers. These properties are located in both primary and secondary markets across British Columbia, Alberta, Manitoba, Ontario, and Quebec, and comprise a total of approximately 2.5 million square feet of leasable space. PHOTOMEDEX INC: Mediation Set to Resolve Class Action ----------------------------------------------------- Photomedex, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2014, for the quarterly period ended September 30, 2014, that a mediation was scheduled for November 10, 2014, on possible settlement of the class action lawsuit filed in the United States District Court for the Eastern District of Pennsylvania against the Company and its two top executives, Dolev Rafaeli, Chief Executive Officer, and Dennis M. McGrath, President and Chief Financial Officer. On December 20, 2013, PhotoMedex, Inc. was served with a putative class action lawsuit filed in the United States District Court for the Eastern District of Pennsylvania against the Company and its two top executives, Dolev Rafaeli, Chief Executive Officer, and Dennis M. McGrath, President and Chief Financial Officer. The suit, filed by Mr. Guy Ratz, a former employee of Radiancy (Israel) Ltd., a wholly-owned subsidiary of the Company, alleges various violations of the Federal securities laws between November 7, 2012 and November 14, 2013, including that the Company and its officers made false and misleading statements or failed to disclose material facts concerning the Company's business. Two other shareholders filed suit through other firms; the Asbestos Workers Local 14 Pension Fund was appointed the lead plaintiff in this case. An amended complaint was filed by the plaintiffs on April 15, 2014. The Company filed a motion to dismiss the case in its entirety; briefing continues on that motion. The complaint seeks certification of the putative class as well as an unspecified amount of monetary damages, pre-and post-judgment interest and attorneys' fees, expert witness fees and other costs. The Company and its officers intend to vigorously defend themselves against this lawsuit. A mediation on possible settlement of this action has been scheduled for November 10, 2014. At this time, the amount of any loss, or range of loss, cannot be reasonably estimated as the cases have only been initiated and no discovery has been conducted to determine the validity of any claim or claims made by plaintiffs. Therefore, the Company has not recorded any reserve or contingent liability related to these particular legal matters. However, in the future, as the cases progress, the Company may be required to record a contingent liability or reserve for these matters. PhotoMedex, Inc. (and its subsidiaries) (the "Company") is a Global Health products and services company providing integrated disease management and aesthetic solutions to dermatologists, professional aestheticians, ophthalmologists, optometrists, consumers and patients. PHOTOMEDEX INC: Discovery Conducted in LCA-Vision Merger Suits -------------------------------------------------------------- Photomedex, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2014, for the quarterly period ended September 30, 2014, that little discovery has been conducted to determine the validity of any claim or claims made by plaintiffs in the class-action lawsuits in connection with PhotoMedex's proposed acquisition of LCA-Vision, Inc. Six putative class-action lawsuits were filed in connection with PhotoMedex's proposed acquisition of LCA-Vision, Inc. Two of those suits were filed in the Court of Chancery of the State of Delaware and four were filed in the Court of Common Pleas of Hamilton County, Ohio. All cases assert claims against LCA-Vision, Inc., and a mix of other defendants, including LCA's chief executive officer and directors, PhotoMedex, and Gatorade Acquisition Corp., a wholly owned subsidiary of PhotoMedex. The complaints generally allege that the proposed acquisition undervalued LCA and deprived LCA's shareholders of the opportunity to participate in LCA's long-term financial prospects, that the "go shop" and "deal- protection" provisions of the Merger Agreement were designed to prevent LCA from soliciting or receiving competing offers, that LCA's Board breached its fiduciary duties and failed to maximize that company's stockholder value, and that LCA, PhotoMedex, and Gatorade aided and abetted the LCA defendants' alleged breaches of duty. The complaints seek injunctive relief, unspecified damages, and other relief. The Ohio plaintiffs agreed to consolidate their suits and take the lead on this matter, although the Ohio Court did not formally consolidate the suits until April 24, 2014. The Delaware suits were consolidated on March 25, 2014; on or around that same date, the parties reached an agreement by which LCA and the other defendants agreed to produce certain discovery to the plaintiffs on an expedited basis. On April 30, 2014, the Ohio plaintiffs (with the Delaware plaintiffs' concurrence) agreed to withdraw their motion for a preliminary injunction and not seek to enjoin the stockholder vote or the consummation of the merger in return for LCA's agreement to make certain supplemental disclosures related to the merger. Those supplemental disclosures were filed by LCA under a Form 8-K on April 30, 2014. This agreement did not affect the terms of the Merger Agreement or the amount of consideration LCA stockholders would be entitled to receive in the merger. The Company intends to continue to vigorously defend itself in the lawsuits if the parties cannot enter into a formal stipulation of settlement. At this time, the amount of any loss, or range of loss, cannot be reasonably estimated, as the cases have only been recently initiated and little discovery has been conducted to determine the validity of any claim or claims made by plaintiffs. Therefore, the Company has not recorded any reserve or contingent liability related to these particular legal matters. However, in the future, as the cases progress, the Company may be required to record a contingent liability or reserve for these matters if the cases cannot be resolved. PhotoMedex, Inc. (and its subsidiaries) (the "Company") is a Global Health products and services company providing integrated disease management and aesthetic solutions to dermatologists, professional aestheticians, ophthalmologists, optometrists, consumers and patients. PHOTOMEDEX INC: Mediation Scheduled in D.C. Class Action -------------------------------------------------------- Photomedex, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2014, for the quarterly period ended September 30, 2014, that mediation was scheduled for November 24, 2014 in the class action lawsuit filed in the United States District Court for the District of Columbia against the Company's subsidiary, Radiancy, Inc. and Dolev Rafaeli, Radiancy's President. On April 25, 2014, a putative class action lawsuit was filed in the United States District Court for the District of Columbia against the Company's subsidiary, Radiancy, Inc. and Dolev Rafaeli, Radiancy's President. The suit was filed by Jan Mouzon and twelve other customers residing in ten different states who purchased Radiancy's no!no! Hair products. It alleges various violations of state business and consumer protection codes including false and misleading advertising, unfair trade practices, and breach of express and implied warranties. The complaint seeks certification of the putative class, or, alternatively, certification as subclasses of plaintiffs residing in those specific states. The complaint also seeks an unspecified amount of monetary damages, pre-and post-judgment interest and attorneys' fees, expert witness fees and other costs. Dr. Rafaeli was served with the Complaint on May 5, 2014; to date, Radiancy, has not been served. The Company has filed a motion to dismiss this case; that motion is pending before the Court. A mediation has been scheduled in this matter for November 24, 2014. Radiancy and its officers intend to vigorously defend themselves against this lawsuit. At this time, the amount of any loss, or range of loss, cannot be reasonably estimated as the case has only been initiated and no discovery has been conducted to determine the validity of any claim or claims made by plaintiffs. Therefore, the Company has not recorded any reserve or contingent liability related to these particular legal matters. However, in the future, as the cases progress, the Company may be required to record a contingent liability or reserve for these matters. PhotoMedex, Inc. (and its subsidiaries) (the "Company") is a Global Health products and services company providing integrated disease management and aesthetic solutions to dermatologists, professional aestheticians, ophthalmologists, optometrists, consumers and patients. PHOTOMEDEX INC: Discovery Commenced in Calif. State Court Action ---------------------------------------------------------------- Photomedex, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2014, for the quarterly period ended September 30, 2014, that discovery has now commenced in the class action lawsuit filed in the Superior Court in the State of California, County of Kern. On June 30, 2014, the Company's subsidiary, Radiancy, Inc., was served with a putative class action lawsuit filed in the Superior Court in the State of California, County of Kern. The suit was filed by April Cantley, who purchased Radiancy's no!no! Hair products. It alleges various violations of state business and consumer protection codes including false and misleading advertising, breach of express and implied warranties and breach of the California Legal Remedies Act. The complaint seeks certification of the putative class, which consists of customers in the State of California who purchased the no!no! Hair devices. The complaint also seeks an unspecified amount of monetary damages, pre-and post-judgment interest and attorneys' fees, expert witness fees and other costs. Radiancy and its officers intend to vigorously defend themselves against this lawsuit. Discovery has now commenced in this action. At this time, the amount of any loss, or range of loss, cannot be reasonably estimated as the case has only been initiated and no discovery has been conducted to determine the validity of any claim or claims made by plaintiffs. Therefore, the Company has not recorded any reserve or contingent liability related to these particular legal matters. However, in the future, as the cases progress, the Company may be required to record a contingent liability or reserve for these matters. PhotoMedex, Inc. (and its subsidiaries) (the "Company") is a Global Health products and services company providing integrated disease management and aesthetic solutions to dermatologists, professional aestheticians, ophthalmologists, optometrists, consumers and patients. PHOTOMEDEX INC: Plaintiffs' Counsel Appeals Israeli Court Ruling ---------------------------------------------------------------- Photomedex, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2014, for the quarterly period ended September 30, 2014, that a class action plaintiffs' counsel filed an appeal of an Israeli Court's decision. The Company was served on July 29, 2014 with an application to certify a class action, filed in Israel District Court for Tel Aviv against the Company and its two top executives, Dolev Rafaeli, Chief Executive Officer, and Dennis M. McGrath, President and Chief Financial Officer. Under Israeli procedures, an application is filed with the Court, the Company had 90 days to submit its response, and then the Court reviews the application and the response and determines whether to certify the application as a class action. The application, served by a shareholder of the Company, alleges various violations of the Israeli Securities Law 5728-1968, including that the Company and its officers made false and/or misleading statements or failed to disclose material facts in its public reports concerning the Company's business, and therefore influenced the Company's share price. The plaintiff seeks class action status to include all purchasers of the Company's stock between May 3, 2012 and November 6, 2013, specifying an amount in monetary damages of 145 Million New Israeli Shekels or $42,050,000. The plaintiff also seeks pre-and post-judgment interest and attorneys' fees and other costs. The Israeli Court has rejected the service of process by plaintiffs, noting that the agency upon whom service was effected was not authorized to receive service for any of the defendants, and that both Dr. Rafaeli and Mr. McGrath were not residents of Israel for purposes of service of process. The Court also held that the plaintiffs were in violation of key procedural rules governing the filing and prosecution of such matters. Plaintiffs' counsel filed an appeal of the Court's decision on or about October 6, 2014. The Company and its officers are already parties to a lawsuit containing similar allegations filed in the United States District Court for the Eastern District of Pennsylvania on December 20, 2013, and intend to vigorously defend themselves against both actions. At this time, the amount of any loss, or range of loss, cannot be reasonably estimated as the case has only been initiated and no discovery has been conducted to determine the validity of any claim or claims made and any damages stated by plaintiffs. Therefore, the Company has not recorded any reserve or contingent liability related to these particular legal matters. However, in the future, as the cases progress, the Company may be required to record a contingent liability or reserve for these matters. PhotoMedex, Inc. (and its subsidiaries) (the "Company") is a Global Health products and services company providing integrated disease management and aesthetic solutions to dermatologists, professional aestheticians, ophthalmologists, optometrists, consumers and patients. POPULAR INC: BPNA Opposes Motion for Leave to Amend Complaint ------------------------------------------------------------- Banco Popular North America ("BPNA") filed a motion in opposition to plaintiffs' motion for leave to amend a class action complaint, Popular, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2014, for the quarterly period ended September 30, 2014. On November 21, 2012, BPNA was served with a putative class action complaint captioned Josefina Valle, et al. v. Popular Community Bank, filed in the New York State Supreme Court (New York County). Plaintiffs, existing BPNA customers, allege among other things that BPNA has engaged in unfair and deceptive acts and trade practices in connection with the assessment of overdraft fees and payment processing on consumer deposit accounts. The complaint further alleges that BPNA improperly disclosed its consumer overdraft policies and, additionally, that the overdraft rates and fees assessed by BPNA violate New York's usury laws. The complaint seeks unspecified damages, including punitive damages, interest, disbursements, and attorneys' fees and costs. BPNA removed the case to federal court (S.D.N.Y.) and plaintiffs subsequently filed a motion to remand the action to state court, which the Court granted on August 6, 2013. A motion to dismiss was filed on September 9, 2013. On October 25, 2013, plaintiffs filed an amended complaint seeking to limit the putative class to New York account holders. A motion to dismiss the amended complaint was filed in February 2014. In August 2014, the Court entered an order granting in part BPNA's motion to dismiss. The sole surviving claim relates to BPNA's item processing policy. On September 10, 2014, plaintiffs filed a motion for leave to file a second amended complaint to correct certain deficiencies noted in the court's decision and order. On October 21, 2014, BPNA filed a motion in opposition to plaintiffs' motion for leave to amend the complaint. Popular, Inc. (the "Corporation") is a diversified, publicly-owned financial holding company subject to the supervision and regulation of the Board of Governors of the Federal Reserve System. POPULAR INC: Discovery Ongoing in "Quiles" Class Action ------------------------------------------------------- Popular, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2014, for the quarterly period ended September 30, 2014, that discovery is ongoing in the putative class action complaint captioned Neysha Quiles et al. v. Banco Popular de Puerto Rico et al. Between December 2013 and January 2014, Banco Popular de Puerto Rico ("BPPR"), Banco Popular North America ("BPNA") and Popular, Inc., along with two executive officers, were served with a putative class action complaint captioned Neysha Quiles et al. v. Banco Popular de Puerto Rico et al. Plaintiffs essentially alleged that they and others, who have been employed by the Defendants as "bank tellers" and other similarly titled positions, were generally paid only for scheduled work time, rather than time actually worked. The Complaint sought to maintain a collective action under the Fair Labor Standards Act ("FLSA") on behalf of all individuals who were employed or were currently employed by the Defendants in Puerto Rico, the Virgin Islands, New York, New Jersey, Florida, California, and Illinois as hourly paid, non- exempt, bank tellers or other similarly titled positions at any time during the past three years and alleged the following claims under the FLSA against all Defendants: (i) failure to pay overtime premiums; and (ii) that the failure to pay was willful. Similar claims were brought under Puerto Rico law on behalf of all individuals who were employed or are currently employed by BPPR in Puerto Rico as hourly paid, non-exempt, bank tellers or other similarly titled positions at any time during the past three years. On January 31, 2014, the Popular defendants filed an answer to the complaint. On February 24, 2014, the parties reached an agreement to dismiss the complaint against BPNA and the named BPNA executive officer without prejudice. The parties recently submitted briefs for and against class certification, which are currently pending resolution. Discovery is ongoing. Popular, Inc. (the "Corporation") is a diversified, publicly-owned financial holding company subject to the supervision and regulation of the Board of Governors of the Federal Reserve System. POPULAR INC: Motion to Transfer "Fernandez" Case Remains Pending ---------------------------------------------------------------- Popular, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2014, for the quarterly period ended September 30, 2014, that the motion demanding that the case Nora Fernandez, et al. v. UBS, et al., be transferred back to the United States District Court for the Southern District of New York remains pending to date. On May 5, 2014, a putative class action captioned Nora Fernandez, et al. v. UBS, et al. was filed in the United States District Court for the Southern District of New York on behalf of investors in 23 Puerto Rico closed-end investment companies against various UBS entities, BPPR and Popular Securities. UBS Financial Services Incorporated of Puerto Rico is the sponsor and co-sponsor of all 23 funds, while BPPR was co-sponsor, together with UBS, of nine (9) of those funds. The plaintiffs allege breach of fiduciary duties, aiding and abetting breach of fiduciary duty and breach of contract against all defendants. The complaint seeks unspecified damages, including disgorgement of fees and attorneys' fees. On May 30, 2014, plaintiffs requested the voluntary dismissal of their class action in the SDNY and on that same date, they filed a virtually identical complaint in the US District Court for the District of Puerto Rico (USDC-PR) and requested that the case be consolidated with the matter of In re: UBS Financial Services Securities Litigation, a class action currently pending before the USDC-PR in which neither BPPR nor Popular Securities are parties. Recently, the UBS defendants filed an opposition to the consolidation request and demanded that the case be transferred back to the SDNY on the ground that the relevant agreements between the parties contain a clear and unambiguous choice of forum clause, with New York as the selected forum. The Popular defendants joined this motion. The motion remains pending to date. Popular, Inc. (the "Corporation") is a diversified, publicly-owned financial holding company subject to the supervision and regulation of the Board of Governors of the Federal Reserve System. POPULAR INC: Settlement in "Alvarez" Case Being Discussed --------------------------------------------------------- Popular, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2014, for the quarterly period ended September 30, 2014, that the settlement terms in the case David Alvarez, et al. v. Banco Popular North America, are currently being discussed. On May 6, 2014, a putative class action captioned David Alvarez, et al. v. Banco Popular North America was filed in the Superior Court of the State of California for the County of Los Angeles. Plaintiffs generally assert that BPNA has engaged in purported violations of Sec. 2954.8(a) of the California Civil Code and Sec. 17200 et seq. of the California Business Professions Code, which allegedly require financial institutions that make loans secured by certain types of real property located within the state of California to pay interest to borrowers on impound account deposits at a statutory rate of not less than two percent (2%). Plaintiffs maintain that BPNA has not paid interest on such deposits and demand that BPNA be enjoined from engaging in further violations of these provisions and pay an unspecified amount of damages sufficient to repay the unpaid interest on these deposits. PHH Corporation, which acquired the loans at issue in this complaint, has tentatively agreed to indemnify and tender a defense on behalf of BPNA. The court recently entered an order staying all substantive activity, including any responsive pleading, until the initial conference scheduled for August 22, 2014. The parties have subsequently reached an agreement in principle. The settlement terms -- which do not contemplate a payment by BPNA -- are currently being discussed. Popular, Inc. (the "Corporation") is a diversified, publicly-owned financial holding company subject to the supervision and regulation of the Board of Governors of the Federal Reserve System. POPULAR INC: Faces "Valle" Class Action Lawsuit ----------------------------------------------- Popular, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2014, for the quarterly period ended September 30, 2014, that Banco Popular North America on October 7, 2014, was served with a putative class action complaint captioned Josefina Valle, et al. v. BPNA, filed in the United States District Court for the Southern District of New York. The complaint names the same plaintiffs who filed the above-described overdraft fee class action suit. Plaintiffs allege, among other things, that BPNA engages in unfair and deceptive acts and trade practices relative to the assessment of ATM fees on ATM transactions initialed at Allpoint branded ATMs. The complaint further alleges that BPNA is in violation of the Electronic Fund Transfer Act and Regulation E with respect to ATM fees. BPNA is investigating the allegations and will respond to the complaint as appropriate. Popular, Inc. (the "Corporation") is a diversified, publicly-owned financial holding company subject to the supervision and regulation of the Board of Governors of the Federal Reserve System. PORCAO GRILL: "Pinckney" Suit Seeks to Recover Unpaid Overtime -------------------------------------------------------------- Michael Pinckney, and other similarly situated individuals v. Porcao Grill Miami, LLC d/b/a Porcao, a Florida Limited Liability Company, Grimpa, LLC, a Florida Limited Liability Company, Porcao Manager, Inc., a Florida Corporation, Grimpa Holdings, LLC, a Florida Limited Liability Company, and Christophe L. Difalco, an individual, Case No. 1:14-cv-24719 (S.D. Fla., December 15, 2014), seeks to recover unpaid overtime premium pay and liquidated damages pursuant to the Fair Labor Standards Act. The Defendants own and operate Porcao restaurant in Miami, Florida. The Plaintiff is represented by: Ruben Martin Saenz, Esq. SAENZ & ANDERSON, PLLC 20900 N.E. 30th Avenue, Suite 800 Aventura, FL 33180 Telephone: (305) 503-5131 Facsimile: (888) 270-5549 E-mail: msaenz@saenzanderson.com PTZ INSURANCE: Has Made Unsolicited Calls, "Legg" Suit Claims ------------------------------------------------------------- Christopher Legg, individually and on behalf of all others similarly situated v. PTZ Insurance Agency, Ltd. an Illinois Corporation, and Pethealth, Inc., Case No. 1:14-cv-10043 (N.D. Ill., December 15, 2014), alleges that the Defendants made unsolicited calls to the cell phones of the Plaintiff and others using an artificial or prerecorded voice, as well as for marketing calls made to persons who have registered their telephone number on the National Do Not Call List. The Defendants are insurance agencies with a principle place of business at 3315 Algonquin Road, Suite 450, Rolling Meadows, IL 60008. The Plaintiff is represented by: Katherine Marie Bowen, Esq. Michael S. Hilicki, Esq. Timothy J. Sostrin, Esq. Keith James Keogh, Esq. KEOGH LAW, LTD 55 W. Monroe, Ste 3390 Chicago, IL 60603 Telephone: (312) 726-1092 Facsimile: (312) 726-1093 E-mail: kbowen@keoghlaw.com MHilicki@KeoghLaw.com tsostrin@keoghlaw.com Keith@Keoghlaw.com PYOD LLC: Court Grants Stay & Permits Interlocutory Appeal ---------------------------------------------------------- Chief District Judge Richard L. Young granted the Defendant's motion for leave to file an interlocutory appeal and for stay pending that appeal filed in STACY PATRICK, formerly known as COMPTON, individually and on behalf of all others similarly situated, Plaintiff, v. PYOD, LLC, a Delaware LLC, and RESURGENT CAPITAL SERVICES, LP a Delaware limited partnership, Defendants. Defendant cited the criteria when the court may certify a case for interlocutory appeal as follows: (1) it involves a controlling question of law, (2) there is substantial ground for difference of opinion, and (3) an immediate appeal from the order may materially advance the ultimate termination of the litigation. Judge Richard L Young granted Pyod's motion upon showing that all the criteria to certify the case for interlocutory appeal have been met and fully satisfied. In addition, the request for stay pending review was also granted since Plaintiff raises no objection on the matter. A copy of the Order dated October 20, 2014, is available at http://bit.ly/1wGykCmfrom Leagle.com. STACY PATRICK, Plaintiff, represented by Angie K. Robertson, PHILIPPS AND PHLIPPS, LTD., John Thomas Steinkamp, JOHN T. STEINKAMP AND ASSOCIATES, Mary E. Philipps, PHILIPPS & PHILIPPS, LTD & David J. Philipps, PHILIPPS & PHILIPPS LTD. Defendants PYOD LLC and RESURGENT CAPITAL SERVICES LP represented by Jeanine R. Kerridge, BARNES & THORNBURG LLP & John P. Boyle -- John.Boyle@lawmoss.com -- MOSS & BARNETT, P.A.. QUALITY RESOURCES: Loses Bid to Dismiss TCPA Class Action --------------------------------------------------------- Kyla Asbury, writing for Legal Newsline, reports that a federal judge refused to dismiss a class action lawsuit against Quality Resources for allegedly violating the Telephone Consumer Protection Act. U.S. District Judge Amy J. St. Eve denied the motion of Quality Resources to dismiss the complaint or for summary judgment. Sarah Toney filed the class action lawsuit against the defendants on Jan. 3, 2013. Quality Resources filed its motion to dismiss on Aug. 21 for failure to state a claim. Ms. Toney claimed on Dec. 8, 2012, she ordered three pairs of Stompeez children's slippers as Christmas presents and made the order via the website Stompeez.com. The web order form required Ms. Toney's telephone number "for questions about order," and Ms. Toney filled out the web order form. However, she claimed she did not consent to receiving telemarketing calls advertising other Stompeez services. On Dec. 10, 2012, and Dec. 11, 2012, Ms. Toney received calls from a number that she did not recognize and when she answered it, "started with a distinctive click and pause prior to someone being on the line, indicating it came from an automatic dialer that dialed plaintiff's phone number and routed the call to a sales agent when plaintiff answered." Ms. Toney claimed when someone calls the numbers that called her, they are directed to Quality Resources. "Quality argues that Toney fails to state a claim for violations of the TCPA because her allegations are 'conclusory and entirely inadequate' and 'impermissibly lump the defendants together,'" the order states. St. Eve said in the order that Quality simply ignores the 16 pages of allegations in the complaint. "Those allegations adequately describe plaintiff's theories of liability and each defendant's alleged role in the TCPA violations," the order states. "These allegations sufficiently put the defendants on notice of plaintiff's claims and the grounds upon which they rest." St. Eve granted the motion to dismiss regarding Provell, finding that under Delaware law Ms. Toney's claims against a dissolved company cannot be allowed to continue. The third amended complaint contains sufficient factual allegations to plead a plausible basis for holding Sempris vicariously liable for the alleged misconduct of Quality Resources under a formal agency theory, but not under theories of apparent authority or ratification, according to the order. Ms. Toney is represented by Alexander Burke of Burke Law Offices LLC in Chicago; Anthony Paronich of Broderick Law PC in Boston; and Matthew McCue of the Law Office of Matthew McCue in Natick, Mass. Quality Resources is represented by Jeffrey Backman and Richard W. Epstein of Greenspoon Marder PA in Ft. Lauderdale, Fla.; and Timothy A. Hudson -- thudson@tdrlawfirm.com -- of Tabet DiVito Rothstein in Chicago. A status hearing is set for Dec. 9 to set a date for the close of discovery. U.S. District Court for the Northern District of Illinois case number: 1:13-cv-00042 REDCO GROUP: Faces "Miller" Suit Over Failure to Pay Overtime ------------------------------------------------------------- Keisha Miller and Rahmese McKee, on behalf of themselves and those similarly situated v. The Redco Group, Inc. d/b/a Developmental Support Services, Case No. 5:14-cv-07068 (E.D. Pa., December 15, 2014), is brought against the Defendant for failure to pay overtime wages for violation of the Fair Labor Standard Act. The Redco Group, Inc. owns and operates a residential facility located at 2201 Ridgewood Rd., Ste. 310, Wyomissing, Pennsylvania 19610. The Plaintiff is represented by: David M. Koller, Esq. KOLLER LAW PC 2043 Locust St Ste 1B Philadelphia, PA 19103 Telephone: (215) 545-8917 Facsimile: (215) 575-0826 E-mail: davidk@phillyhometownlawyer.com RES-CARE INC: Settlement Payments Expected Through Early 2015 ------------------------------------------------------------- Res-Care, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2014, for the quarterly period ended September 30, 2014, that pre-tax charges recorded in connection with legal and administrative matters, including settlements in 2014 of communication practices and wage/hour class-action lawsuits, as well as accrual of the Company's best estimate of the anticipated settlement cost for the Iowa matter, increased by $15.6 million during the nine months ended September 30, 2014, compared to the same period in 2013. Court approval and payment of certain settlements are expected in late 2014 through early 2015. RLI INSURANCE: NY Court Affirms "Stecko" Class Certification ------------------------------------------------------------ The Appellate Division of the Supreme Court of New York unanimously affirmed the order granting Plaintiffs' motion for class certification in the case CHRISTOPHER STECKO, ET AL., Plaintiffs-Respondents, v. RLI INSURANCE COMPANY, Defendant- Appellant, THREE GENERATIONS CONTRACTING, INC., ETC., ET AL., Defendants. Plaintiffs allege that defendant Three Generations Contracting, Inc. failed to pay the required prevailing wage and supplemental benefits owed to them. They further states in their affidavit that they recalled working with at least fifty other workers and established that the class is so numerous that joinder of all members is impracticable. In its ruling against RLI's contention, the Supreme Court held that the commonality prerequisite for a class certification is met since all members of the class allege that defendant Three Generations Contracting, Inc. failed to pay the required prevailing wage and supplemental benefits owed to them. A class action is the "superior vehicle" for resolving wage disputes since the damages allegedly suffered by an individual class member are likely to be insignificant, and the costs of prosecuting individual actions would result in the class members having no realistic day in court. Plaintiffs have also satisfied the additional factors set forth in CPLR 902 for class certification. A copy of the Decision and Order dated October 21, 2014, is available at http://bit.ly/1nLUxM8from Leagle.com. Dreifuss, Bonacci & Parker PC, Florham Park, NJ (David C. Dreifuss of the bar of the State of New Jersey, admitted pro hac vice, of counsel), for appellant. Virginia & Ambinder, LLP, New York (James E. Murphy of counsel), for respondents. ROCK CREEK: Trial Date in Class Actions Set in May 2015 ------------------------------------------------------- Rock Creek Pharmaceuticals, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2014, for the quarterly period ended September 30, 2014, that the Court set a trial date for May 18, 2015 in class actions by Francis J. Reuter, Charles Boravian and Marty Cole. Three individuals, Francis J. Reuter, Charles Boravian and Marty Cole, filed separate similar purported class actions on behalf of putative classes of persons or entities collectively encompassing those who purchased or otherwise acquired shares of the Company's common stock between October 31, 2011 and March 18, 2013. The first action was filed on or about March 25, 2013 in the United States District Court for the Eastern District of Virginia, Francis J. Reuter v. Star Scientific, Inc. et al., E.D. Va. Richmond Division, 13-00183-JAG (the "Reuter Action"). The Reuter Action named as defendants the Company, its subsidiary, Rock Creek Pharmaceuticals, Inc. (which is now known as RCP Development, Inc.), and certain of the Company's current or former officers and/or employees. The second action was filed on or about March 26, 2013 in the United States District Court for the District of Massachusetts, Boravian v. Star Scientific, Inc. et al. D. Mass. 13-1-695-DJC (the "Boravian Action"). The Boravian Action named as defendants the Company and Jonnie R. Williams, Sr. and was voluntarily dismissed by the plaintiff. The third action was filed on or about May 7, 2013 in the United States District Court for the Eastern District of Virginia, Cole v. Star Scientific, Inc. et al., E.D. Va. Richmond Division, 13-00287-JAG (the "Cole Action"). The Cole Action named as defendants, the Company, its subsidiary, Rock Creek Pharmaceuticals, Inc. (which is now known as RCP Development, Inc.), and certain of its officers and employees. In general, the complaints collectively allege that the Company and the individual defendants violated Section 10(b) under the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder as related to statements made regarding its past and future prospects and certain scientific data relating to its products, as well as related to unspecified private placements and related party transactions engaged in since 2006. The Reuter Action and the Cole Action have been consolidated and a lead plaintiff was appointed by the Court in the consolidated cases on June 21, 2013. Pursuant to a joint scheduling order in place in these cases, plaintiff filed a consolidated operative complaint on September 5, 2013 and defendants filed a motion to dismiss the consolidated operative complaint on October 25, 2013. Following full briefing and argument on January 7, 2014, the Court indicated that it would not grant the motion at that time and would allow the case to proceed to discovery, but ordered additional briefing. Also, the Court entered a scheduling order for discovery and an order directing the parties to participate in mediation before a Magistrate Judge. Defendants thereafter filed answers. Subsequently, the United States, on January 28, 2014, moved to stay discovery in the case pending the completion or other disposition of the criminal trial of former Governor McDonnell and his wife. That motion was granted by the Court on January 28, 2014. On February 12, 2014, the Court granted a joint motion by the parties to stay all deadlines other than a court sponsored mediation session and the issuance of the Court's opinion on the motion to dismiss. On March 11, 2014, defendants filed a motion for leave to submit new authority in support of their motion to dismiss. On March 13, 2014, the Court granted defendants' motion and ordered the submission of additional supplemental briefs by the parties. Those briefs were filed on March 19, 2014 and March 26, 2014. On June 11, 2014, a mediation conference was held before Magistrate Judge David J. Novak. On July 29, 2014, the parties participated in a private mediation and are in the final stages of a settlement dependent on certain material conditions within the control of third-parties. There is no assurance that such conditions will be satisfied to enable the parties to consummate a settlement. If settled upon the discussed terms, it is anticipated that the settlement will be funded with insurance proceeds and accordingly will not impact the Company's financial position. Following a status conference on October 10, 2014, which the court ordered since the parties have not yet been able to finalize the contingent settlement, the court lifted the discovery stay, set a trial date for May 18, 2015, and ordered briefing on class certification and for the defendants to refile their motion to dismiss. Efforts to attempt to finalize the settlement remain ongoing. If settled upon the discussed terms, it is anticipated that the settlement will be funded with insurance proceeds and accordingly will not impact the Company's financial position. ROCK CREEK: Bid to Dismiss Consumer Class Action Under Advisement ----------------------------------------------------------------- Rock Creek Pharmaceuticals, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2014, for the quarterly period ended September 30, 2014, that the Court has taken the motion to dismiss the Consumer Class Action under advisement. On January 27, 2014, Howard T. Baldwin filed a purported class action naming the Company, Rock Creek Pharmaceuticals, Inc. and GNC Holding, Inc., or "GNC," as defendants. The case was filed in the United States District Court for the Northern District of Illinois. Generally, the complaint alleges that claims made for the Company's Anatabloc(R) product have not been proven and that individuals purchased the product based on alleged misstatements regarding characteristics, uses, benefits, quality and intended purposes of the product. The complaint purports to allege claims for violation of state consumer protection laws, breach of express and implied warranties and unjust enrichment. The Company has agreed to indemnify and defend GNC pursuant to the terms of the purchasing agreement between RCP Development and GNC. Consistent with that commitment, the Company has agreed to assume the defense of this matter on its own behalf as well as on behalf of GNC. The defendants filed a motion to dismiss the complaint on March 24, 2014, and the Court heard oral argument on the motion on May 15, 2014. The Court has taken the motion under advisement. The Company intends to vigorously defend against these claims. However, at the present time, it cannot predict the possible outcome of these claims. Accordingly, no amount has been accrued in the consolidated financial statements. ROOSEVELT FIESTA: Faces "Saucedo" Suit Over Failure to Pay OT ------------------------------------------------------------- Ricardo Saucedo, individually and on behalf of all similarly situated employees v. Roosevelt Fiesta Grill, Inc., and Carlos Quezada, Case No. 1:14-cv-10057 (N.D. Ill., December 15, 2014), is brought against the Defendants for failure to pay overtime wages for work in excess of 40 hours per week. The Defendants own and operate a restaurant within the State of Illinois. The Plaintiff is represented by: David Erik Stevens, Esq. CONSUMER LAW GROUP, LLC 6232 N. Pulaski, Suite 200 Chicago, IL 60646 Telephone: (312) 624-8958 E-mail: Dave@StevensLawLLC.com SAKS FIFTH: Sued Over Failure to Properly Display Return Policy --------------------------------------------------------------- Jennifer Shaouli, individually and on Behalf of all others similarly situated v. Saks Fifth Avenue, Inc., a Massachusetts corporation, Case No. 2:14-cv-09590 (C.D. Cal., December 15, 2014), is brought against the Defendant for failure to properly display and post its return policy as required by California Civil Code. Saks Fifth Avenue, Inc. owns and operates retail stores throughout the United States. The Plaintiff is represented by: L. Paul Mankin IV, Esq. LAW OFFICES OF L. PAUL MANKIN, IV 8730 Wilshire Blvd., Suite 310 Beverly Hills, CA 90211 Telephone: (310) 776-6336 Facsimile: (323) 207-3885 E-mail: pmankin@paulmankin.com SANOFI: Pomerantz LLP Files Securities Class Action in New York --------------------------------------------------------------- Pomerantz LLP on Dec. 4 disclosed that it has filed a class action lawsuit against Sanofi and certain of its officers. The class action, filed in United States District Court, Southern District of New York, and docketed under 14-cv-9624, is on behalf of a class consisting of all persons or entities who purchased Sanofi securities between February 7, 2013 and December 3, 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 Sanofi securities during the Class Period, you have until February 2, 2015 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. Sanofi is a global pharmaceutical company that researches, develops and manufactures prescription pharmaceuticals and vaccines. 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) Sanofi was making improper payments to healthcare professionals in connection with the sale of pharmaceutical products in violation of federal law; (2) Sanofi lacked adequate internal controls over financial reporting; and (3) as a result of the foregoing, Sanofi's public statements were materially false and misleading at all relevant times. On October 6, 2014, the Company's media relations department issued a statement announcing that the Company was investigating allegations related to improper payments to healthcare workers. On October 29, 2014, the Company issued a press release and filed a Form 6-K with the SEC, announcing that its Board of Directors had decided to terminate Christopher A. Viehbacher from his position as Chief Executive Officer of Sanofi. As a result of this news, shares of Sanofi fell as much as $2.85 or almost 6%, in unusually heavy volume, to close at $45.22 on October 29, 2014. On December 3, 2014, it was reported by Bloomberg and other media outlets that a whistleblower lawsuit against Sanofi has been filed in New Jersey by former Sanofi paralegal Diane Ponte. The suit alleges that Christopher Viehbacher, the recently ousted CEO of Sanofi, and other executives at the Company conducted a scheme in violation of federal law to funnel tens of millions of dollars in kickbacks and other incentives to get the company's diabetes drugs prescribed and sold. The lawsuit also claims that Viehbacher was fired by the company's board in October "in part, because Defendant Viehbacher was involved in the aforesaid illegal and/or fraudulent activity," which allegedly went on "over the course of many years." Lastly, the suit alleges that Ponte was fired as a result of whistleblowing activity in retaliation for bringing the scheme to light. These allegations come two years after the drug company reached an agreement with the Justice Department and several states to pay $109 million to settle claims that it engaged in kickbacks by giving doctors free samples of an arthritis drug as a means of encouraging them to buy and prescribe the medication. 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. SCE GROUP: "Gaskin" Suit Seeks to Recover Unpaid Overtime Wages --------------------------------------------------------------- Kieara Gaskin, Denise Miller and Tenia Stuckey, individually, on behalf of all others similarly situated and on behalf of the proposed Rule 23 Class v. SCE Group Inc. d/b/a Sin City Cabaret, Konstantine ("Gus") Drakopoulos and Kevin Wells, Case No. 1:14-cv- 09877 (S.D.N.Y., December 15, 2014), seeks to recover unpaid overtime premium pay and liquidated damages pursuant to the Fair Labor Standards Act. The Defendants own and operate Sin City Cabaret located at 2520 Park Avenue, Bronx, New York. The Plaintiff is represented by: David A. Robins, Esq. Lizabeth Schalet, Esq. Robert David Lipman, Esq. LIPMAN & PLESUR, L.L.P. The Jericho Atrium 500 North Broadway, Suite 105 Jericho, NY 11753-2131 Telephone: (516) 931-0050 E-mail: robins@lipmanplesur.com schalet@lipmanplesur.com lipman@lipmanplesur.com SILVERCORP METALS: February 9 Settlement Fairness Hearing Set ------------------------------------------------------------- Lead Counsel for Plaintiffs hereby gives Notice, pursuant to Rule 23 of the Federal Rules of Civil Procedure and an Order of the United States District Court of the Southern District of New York that a Settlement has been preliminarily approved by the Court in the class action, In re Silvercorp Metals, Inc. Securities Litigation. THE PROPOSED SETTLEMENT CLASS WILL CONSIST OF ALL PERSONS AND ENTITIES THAT PURCHASED OR OTHERWISE ACQUIRED SILVERCORP METALS, INC. COMMON STOCK (stock symbol:SVM) PURCHASED OR OTHERWISE ACQUIRED BETWEEN MAY 20, 2009, AND SEPTEMBER 13, 2011 INCLUSIVE, ON THE NEW YORK STOCK EXCHANGE. Excluded from the Class are Defendants, all current and former directors and officers of Silvercorp during the Settlement Class Period, and any family member, trust, company, entity or affiliate controlled or owned by any of the excluded persons or entities referenced above. YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules of Civil Procedure and an Order of the United States District Court for the Southern District of New York, that a hearing will be held on February 9, 2015, at 4:00 p.m., before the Honorable Jed S. Rakoff, United States District Judge, at the courthouse for the United States District Court, Southern District of New York, Courtroom 14B, Daniel Patrick Moynihan United States Courthouse, 500 Pearl St., New York, New York 10007-1312, for the purpose of determining, among other things,: (1) whether the proposed Settlement of the Class claims against the Defendants for fourteen million U.S. dollars (USD$14,000,000.00) should be approved as fair, reasonable and adequate; (2) whether the Plan of Allocation is fair and reasonable, and should be approved; (3) whether the application by Lead Counsel for an award of attorneys' fees and expenses should be approved; (4) whether the Lead Plaintiffs' application for reimbursement of costs and expenses should be granted; (5) whether the Lead Plaintiffs' request for an incentive award should be granted; and (6) whether the Action should be dismissed with prejudice against the Settling Defendants as set forth in the Stipulation filed with the Court. If you purchased or otherwise acquired Silvercorp common stock between May 20, 2009, and September 13, 2011, both dates inclusive, on the NYSE, your rights may be affected by this Action and the Settlement thereof. If you have not received the detailed Notice of Proposed Settlement of Class Action, Motion For Attorneys' Fees and Expenses, and Settlement Fairness Hearing and Proof of Claim and Release Form, you may obtain them free of charge by contacting the Settlement Administrator, by mail at: Silvercorp Metals, Inc. Securities Litigation, c/o Berdon Claims Administration LLC, P.O. Box 9014, Jericho, NY 11753-8914; by Toll-free Telephone at: 800-766-3330; or by visiting the Website: www.berdonclaims.com If you are a member of the Settlement Class and wish to share in the Settlement proceeds, you must submit a Proof of Claim no later than February 4, 2015 establishing that you are entitled to recovery. As further described in the Notice, you will be bound by any Judgment entered in the Action, regardless of whether you submit a Proof of Claim, unless you exclude yourself from the Settlement Class, in accordance with the procedures set forth in the Notice, by no later than January 19, 2015. Any objections to the Settlement, Plan of Allocation or attorneys' fees and expenses must be filed and served, in accordance with the procedures set forth in the Notice, no later than January 19, 2015. Inquiries, other than requests for the Notice, may be made to Lead Counsel for the Settlement Class: Matthew L. Tuccillo, Esq.; Pomerantz LLP; 600 Third Avenue; New York, NY 10016; Telephone: 212-661-1100; Toll-free Telephone: 888-476-6529. INQUIRIES SHOULD NOT BE DIRECTED TO THE COURT, THE CLERK'S OFFICE, THE DEFENDANTS, OR DEFENDANTS' COUNSEL DATED: December 3, 2014 BY ORDER OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK SIRIUS XM: To Pay $3.8-Mil. to Settle Suits Over Subscription ------------------------------------------------------------- Sirius XM Radio will pay $3.8 million and change its policies on automatic subscription renewals to settle to class actions filed by 45 states and the District of Columbia, according to Mike Heuer, writing for Courthouse News Service. In Nevada's filing for Assurance of Voluntary Compliance, Attorney General Catherine Cortez Masto says 45 states and the District of Columbia will share the $3.8 million settlement for Sirius's "misleading, unfair and deceptive trades or practices" that, without customers' consent of knowledge: * Automatically renewed subscriptions; * Billed, charged debit or credit cards or withdrew money from bank accounts; * Did not honor cancellation requests; * Made it difficult to cancel services; * Refused to refund or make timely refunds of cancellation requests for automatically renewed services; and * misrepresented that services would be canceled and refunds issued. Sirius did not have to acknowledge that it did anything wrong. It claims that it disclosed the terms of its automatic renewal policy and properly billed and obtained payment for service renewals. The settlement applies only to Sirius XM's "self-pays subscription plans" for individual consumers, and establishes several compliance provisions. The compliance provisions govern Sirius XM's policies regarding free-trial and promotional subscription plans; advertising and point-of-sale disclosures; automatic renewals; customer cancellation requests; and complaint resolution. The settlement also requires Sirius XM to select a facilitator with expertise in consumer protection law who will that ensure complaints and other issues are handled in a "timely manner." The facilitator will be removed after six months or if a majority of states' attorneys general from an executive committee overseeing the settlement say removal is necessary. Sirius XM also must create and maintain a record of eligible complaints and regularly report on the resolution process to each participating state. The report must include information on the type of complaint filed by each consumer; the consumer's contact information along with any identifiable loss; and any resolution made. The attorneys generals of the 45 states and the District of Columbia conducted an investigation of Sirius XM's automatic renewal activities in 2010 and determined the company violated consumer protection laws. SONY PICTURES: Faces "Corona" Suit Over Alleged Data Breach ----------------------------------------------------------- Michael Corona and Christina Math is, individually and on behalf of others similarly situated v. Sony Pictures Entertainment, Inc., Case No. 2:14-cv-09600 (C.D. Cal., December 15, 2014), is brought against the Defendant for failure to secure its computer systems, servers, and data base that contain over 47,000 Social Security numbers, employment files including employees' salaries, medical information. Sony Pictures Entertainment, Inc. is the American entertainment subsidiary of Japanese multinational technology and media conglomerate Sony. The Plaintiff is represented by: Matthew J. Preusch, Esq. Khesraw Karmand, Esq. KELLER ROHRBACK LLP 1129 State Street Suite 8 Santa Barbara, CA 92101 Telephone: (805) 456-1496 Facsimile: (805) 456-1497 E-mail: mpreusch@kellerrohrback.com kkarmand@KellerRohrback.com - and - Lynn Lincoln Sarko, Esq. Gretchen Freeman Cappio, Esq. Cari Campen Laufenberg, Esq. Amy N.L. Hanson, Esq. KELLER ROHRBACK L.L.P. 1201 Third Ave., Suite3200 Seattle, WA 98101 Telephone: (206) 623-1900 Facsimile: (206) 623-3384 E-mail: lsarko@kellerrohrback.com gcappio@kellerrohrback.com claufenberg@kellerrohrback.com ahanson@kellerrohrbak.com SOUTH STATE: Court Approves Settlement & Dismisses Rational Suit ---------------------------------------------------------------- South State Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2014, for the quarterly period ended September 30, 2014, that the court issued an Order and Final Judgment approving the settlement and dismissing the case Rational Strategies Fund v. Robert H. Demere, Jr. et al., with prejudice. On October 11, 2012, a purported shareholder of Savannah filed a lawsuit in the Supreme Court of the State of New York captioned Rational Strategies Fund v. Robert H. Demere, Jr. et al., No. 653566/2012 (the "Rational Lawsuit"), naming Savannah, members of Savannah's board of directors and South State as defendants. This lawsuit is purportedly brought on behalf of a putative class of Savannah's common shareholders and seeks a declaration that it is properly maintainable as a class action with the Plaintiff as the proper class representative. The Rational Lawsuit alleges that Savannah, Savannah's directors and South State breached duties and/or aided and abetted such breaches by failing to disclose certain material information about the proposed merger between Savannah and South State. Among other relief, the Complaint seeks to enjoin the merger. The Company believes that the claims asserted in the Complaint are without merit and that the proceeding will not have any material adverse effect on the financial condition or operations of South State. On November 23, 2012, South State, Savannah and the other named defendants entered into a memorandum of understanding (the "Rational MOU") with the Plaintiff regarding a settlement of the Rational Lawsuit. Pursuant to the Rational MOU, Savannah made available additional information concerning the Savannah merger to Savannah shareholders in a Current Report on Form 8-K. On March 20, 2014, the parties entered into and filed with the court a stipulation of settlement. On August 4, 2014, the court issued an Order and Final Judgment approving the settlement and dismissing the action with prejudice. SOUTH STATE: Court Okays Settlement & Dismisses FFHI Litigation --------------------------------------------------------------- South State Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2014, for the quarterly period ended September 30, 2014, that the court issued an Order and Final Judgment approving the settlement and dismissing the FFHI Litigation with prejudice. On March 5, 2013, a purported shareholder of First Financial filed a lawsuit in the Court of Chancery of the State of Delaware captioned Arthur Walter v. R. Wayne Hall et al., No. 8386-VCN. On March 25, 2013, another purported shareholder of FFHI filed a lawsuit in the same court captioned Emmy Moore v. R. Wayne Hall et al., No. 8434-VCN. Each complaint named FFHI, members of FFHI's board of directors and South State as defendants. The complaints were purportedly brought on behalf of a putative class of FFHI's common shareholders and sought a declaration that the lawsuits are properly maintainable as a class action with the named plaintiffs as the proper class representatives. Each complaint alleged that FFHI's board of directors breached their fiduciary duties to FFHI shareholders by attempting to sell FFHI to South State by means of an unfair process and for an unfair price and that South State aided and abetted these alleged breaches of fiduciary duty. Among other relief, each complaint sought declaratory and injunctive relief to prevent the proposed merger between FFHI and South State. On April 18, 2013, the Court of Chancery issued an order consolidating the two lawsuits into one action captioned In re First Financial Holdings, Inc. Shareholder Litigation, No. 8386- VCN, and requiring the plaintiffs to file a single consolidated amended complaint as soon as practicable. On May 7, 2013, the plaintiffs filed a consolidated amended complaint, which generally alleges that FFHI's board of directors breached their fiduciary duties to FFHI shareholders by attempting to sell FFHI to South State by means of an unfair process and for an unfair price and by failing to disclose certain material information about the proposed merger. On July 16, 2013, South State, FFHI and the director defendants entered into a memorandum of understanding (the "FFHI MOU") with plaintiffs regarding the settlement of the action, subject to the approval of the court. Pursuant to the terms of the FFHI MOU, South State and FFHI agreed to make available additional information to FFHI shareholders regarding the FFHI merger. In return, the plaintiffs agreed to the dismissal of the lawsuit with prejudice and not to seek any interim relief in favor of the alleged class of FFHI stockholders. On October 30, 2013, the parties entered into and filed with the Delaware court a stipulation of settlement. On January 24, 2014, the court issued an Order and Final Judgment approving the settlement and dismissing the action with prejudice. SOUTH STATE: Court Okays Deal & Dismisses 2nd Rational Action ------------------------------------------------------------- South State Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2014, for the quarterly period ended September 30, 2014, that the court issued an Order and Final Judgment approving the settlement and dismissing the action Rational Strategies Fund v. Robert R. Hill Jr. et al., with prejudice. On May 3, 2013, a purported shareholder of South State filed a lawsuit in the Supreme Court of the State of New York in the County of New York captioned Rational Strategies Fund v. Robert R. Hill Jr. et al., No. 651625/2013, naming South State and members of its board of directors as defendants. This lawsuit is purportedly brought on behalf of a putative class of South State's common shareholders and seeks a declaration that it is properly maintainable as a class action with the Plaintiff as the proper class representative. The lawsuit alleges that South State and members of its board of directors breached duties by failing to disclose certain material information about the proposed merger between FFHI and South State. Among other relief, the Complaint seeks to enjoin the merger. On July 18, 2013, the court granted a temporary injunction enjoining South State from certifying the vote of its shareholders at its special meeting on July 24, 2013 to consider and vote upon the FFHI merger, pending a hearing scheduled for the same date on the defendants' motion to vacate that temporary injunction. On July 19, 2013, South State entered into a memorandum of understanding (the "Rational/FFHI MOU") with plaintiff regarding the settlement of the action. Pursuant to the Rational/FFHI MOU, South State agreed to make available additional information to South State shareholders regarding the FFHI merger, and the plaintiff agreed to jointly request with South State that the temporary injunction be lifted so that the results of the special meeting could be certified without any delay or impediment. Under the terms of the Rational/FFHI MOU, South State, the South State director defendants and the plaintiff have agreed to settle the lawsuit and release the defendants from all claims made by the plaintiff relating to the FFHI merger. On February 20, 2014, the parties entered into a stipulation of settlement that was later filed with the court. On June 3, 2014, the court issued an Order and Final Judgment approving the settlement and dismissing the action with prejudice. TAKATA CORP: Faces Defective Airbag Class Action in Canada ---------------------------------------------------------- Merchant Law Group disclosed that class action litigation has been launched on Dec. 4 with the Courts against the Takata Corporation and its subsidiaries seeking financial compensation for all Canadians whose vehicles may contain defective airbags. On December 3, 2014, U.S. lawmakers openly chastised the Takata Corporation for resisting a call by regulators to expand a nationwide recall of vehicles containing the defective airbags. Over 8 million vehicles have been recalled in the U.S. and an estimated 400,000 have been recalled in Canada. "This class action seeks Canada-wide compensation for vehicle owners against Takata in relation to its defective and dangerous airbags," said Tony Merchant, Q.C. "Hiding safety information as alleged in this litigation has no part of responsible corporate behavior." Anyone who wishes to obtain further information about the Takata class action should provide their contact information at https://www.merchantlaw.com/classactions/takata.php Merchant Law Group LLP has twelve offices across Canada, from Montreal to Victoria. Merchant Law Group is well known for involvement in mass tort and class action cases in Canada, which include successful class action lawsuits involving Toyota Sudden Acceleration, Honda Civic Tires, Winners, Residential Schools, Hollinger, Maple Leaf Foods, and many other class actions. National class action lawsuits were launched against Takata Corporation by Merchant Law Group on December 1 in Ontario, and December 4 in Saskatchewan. For further information: For media seeking actuality or comment, please call Tony Merchant, Q.C. at 403-225-7777 or 306-539-7777. For French media inquiries, please contact our Merchant Law Group's Montreal office at 514-248-7777. TOYOTA MOTOR: Bid to Transfer Venue of "Emerson" Suit Granted ------------------------------------------------------------- Judge Jon S. Tigar of the U.S. District Court for the Northern District of California, in an order dated Dec. 9, 2014, granted Toyota Motor North American, Inc., and Toyota Motor Sales, U.S.A., Inc.'s motion to transfer venue in the putative class action lawsuit styled ANNITA EMERSON, et al., Plaintiffs, v. TOYOTA MOTOR NORTH AMERICA, INC., et al., Defendants, CASE NO. 14-CV-02842-JST (N.D. Calif.). In the putative class action, which was originally filed in the Central District of California, the Plaintiff alleges that certain Highlander vehicles designed, marketed, and sold by Toyota possess defective power lift gates. In support of his order, Judge Tigar said that although many of the factors that courts apply when considering a motion to transfer under 28 U.S.C. Section 1404(a) are neutral in this case, the Court is troubled by the appearance of judge-shopping arising from the Plaintiff's voluntary dismissal of the Central District action and immediate re-filing in the Northern District. Judge Tigar, accordingly, transferred the action back to the Central District. A full-text copy of Judge Tigar's Decision is available at http://is.gd/cm13oCfrom Leagle.com. Annita Emerson, Petitioner, represented by John A Yanchunis, Morgan and Morgan Complex Litigation Group, Robert Ahdoot, Esq. -- RAhdoot@ahdootwolfson.com -- Ahdoot and Wolfson PC, Theodore W Maya, Esq. -- tmaya@ahdootwolfson.com -- Ahdoot and Wolfson PC & Tina Wolfson, Esq. -- twolfson@ahdootwolfson.com -- at Ahdoot and Wolfson APC. Juan Carlos Rivera, Petitioner, represented by Jack Samuel Feltscher, Law Office of Jack S Feltscher. Toyota Motor North America Inc, Respondent, represented by Christopher Chorba, Gibson Dunn and Crutcher LLP, Chelsea V Norell, Gibson Dunn and Crutcher LLP & Timothy William Loose, Gibson Dunn and Crutcher LLP. TOYOTA MOTOR SALES U.S.A. INC, Respondent, represented by Christopher Chorba, Esq. -- cchorba@gibsondunn.com -- Gibson Dunn and Crutcher LLP, Chelsea V Norell, Esq. -- cnorell@gibsondunn.com -- Gibson Dunn and Crutcher LLP & Timothy William Loose, Esq. -- tloose@gibsondunn.com -- at Gibson Dunn and Crutcher LLP. UNITED STATES: Judge Approves SSA Class Action Settlement --------------------------------------------------------- Attorneys at Passman & Kaplan, P.C., in an article for FEDweek, report that an administrative judge with the EEOC recently approved a settlement of a nearly decade-old class action claim against the Social Security Administration. The suit against the SSA alleged that the agency had inappropriately pursued a policy that limited the ability of workers with certain "targeted" disabilities to obtain promotions and advance their careers. The settlement provides for payment of $9.98 million by SSA, including $6.6 million in payouts to eligible class members. Class members in the suit include current and former SSA employees with blindness, deafness, missing extremities, complete or partial paralysis, seizure disorders and mental disabilities, who applied for a promotion and made the best qualified list but did not receive a promotion. In addition to substantial monetary payouts to class members, the settlement also provides for a number of programmatic and policy changes with an estimated value of $20 million. These changes will include increased training for SSA supervisors and centralization of the reasonable accommodation process. First-line supervisors will have the authority to independently approve reasonable accommodation requests, but not to deny them. Only the agency's central office will be able to handle accommodations that an immediate supervisor cannot approve. SSA will also ensure that new technology is accessible to disabled employees. Additionally, the agreement provides for the institution of a new board to oversee the implementation of the changes to SSA policy and practice. The board members will consist of representatives from the agency and from the group of class members, and will be charged with ensuring that the goals of the settlement to improve work opportunities for disabled employees are promoted effectively. This important settlement comes after many years of litigation. The administrative judge originally certified the class in 2008; however, the agency appealed the class certification, which the EEOC ultimately upheld. The final hearing for approval of the agreement will take place in March 2015. The settlement not only represents a major victory for a large group of disabled federal workers at SSA, but also provides a template for other agencies to voluntarily improve their programs and practices to better serve their own disabled employees. Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman& Kaplan, P.C., go to http://www.passmanandkaplan.com UNITEDHEALTH GROUP: Provides Updates on Endoscopy Center Case ------------------------------------------------------------- UnitedHealth Group Incorporated, in its Form 10-Q Report filed with the Securities and Exchange Commission on November 10, 2014, for the quarterly period ended September 30, 2014, provides updates on Endoscopy Center of Southern Nevada Litigation. In April 2013, a Las Vegas jury awarded $24 million in compensatory damages and $500 million in punitive damages against a Company health plan and its parent corporation on the theory that they were negligent in their credentialing and monitoring of an in-network endoscopy center owned and operated by independent physicians who were subsequently linked by regulators to an outbreak of hepatitis C. The trial court reduced the overall award to $366 million. The Company is appealing the case. Company plans are party to 18 additional individual lawsuits and two class actions, at various procedural stages, relating to the outbreak. In July 2014, the Nevada Supreme Court held that claims brought by Medicare Advantage plan members are preempted by the Medicare Act, which the Company anticipates will result in the dismissal of seven of the individual lawsuits. The Company cannot reasonably estimate the range of loss, if any, that may result from these matters given the likelihood of reversal on appeal, the availability of statutory and other limits on damages, the novel legal theories being advanced by the plaintiffs, the various postures of the remaining cases, the availability in many cases of federal defenses under Medicare law and the Employee Retirement Income Security Act of 1974, and the pendency of certain relevant legal questions before the Nevada Supreme Court. The Company is vigorously defending these lawsuits. US POSTAL: Slapped With Interest on Underpaid Life Insurance ------------------------------------------------------------ Because it "dawdled" for decades on paying beneficiaries, a federal judge slapped the U.S. Postal Service with interest on underpaid life insurance benefits, reports Jeff D. Gorman at Courthouse News Service. An arbitrator first ruled in 1986 that the U.S. Postal Service had underpaid thousands of families of its deceased workers by failing to calculate their salaries with cost-of-living adjustments (COLA). Nevertheless it was not until 2008 that USPS paid Pamela McKinney, the daughter of a USPS worker who died in 1982. In a federal class action for interest, McKinney alleged that the USPS' payment delays amounted to a violation of the arbitration award and its union contract. So far, the USPS has paid over $70 million in COLA-adjusted benefits to 16,575 survivors of deceased employees using the addresses it had on file, the phone book and a commercial database. Since the USPS could not locate another 1,142 survivors, however, it argued that the delayed payments did not violate the collective bargaining agreement because no time frame was specified for the payments. U.S. District Judge Christopher Cooper called this "plainly wrong" in a Dec. 4 ruling. "When life insurance initially became due and the postal service did not adjust payment for the deferred COLA, it breached the CBA," the ruling out of Washington, D.C., states. Beneficiaries who were paid late, like McKinney, are also entitled to interest, according to the order. "The delay of years or decades harmed the paid beneficiaries by depriving them of the use of the money over that extended period," Cooper wrote. "Interest here is simply the damages owed for the Postal Service's breach-by-delay." The case is Pamela McKinney v. United States Postal Service, Case No. 1:11-cv-00631 (CRC), in the U.S. District Court for the District of Columbia. VISA INC: Sued in Texas by 93 Merchants for Imposing Excess Fees ---------------------------------------------------------------- Cameron Langford, writing for Courthouse News Service, reports that Visa and MasterCard abuse their market power to impose excess fees on business owners, adding millions of dollars to their operating costs, 93 merchants claim in a federal antitrust lawsuit. More than 80 percent of debit card purchases are made with a Visa or MasterCard, lead plaintiff Bass Pro Group claims in the 92-page lawsuit. "Visa and MasterCard have adopted nearly identical rules, which their member banks agree to and impose on merchants that accept cards issued by those banks," the complaint states. The lawsuit takes aim at interchange fees that, according to Bass Pro, "are generally one of a merchant's largest operating expense items." "Interchange fees are imposed on merchants by Visa and MasterCard for the privilege of accepting the issuing bank's card from a consumer as a means of payment. These fees are collected from the merchant and paid to the issuer of the card," the complaint states. Nearly all card-issuing banks are members of Visa and MasterCard, and they all accept the card companies' "default" interchange fees that fix the fees at an excessive level, Bass Pro says in the complaint. Business owners are stuck paying the high fees, given that it would not make sense for them not to accept Visa and MasterCard. Though banks benefit from the high interchange fees, Bass Pro says, the banks should be able to "independently" compete for merchant acceptance of bank cards without having to abide by Visa and MasterCard's anti-competitive rules. "In competitive markets, interchange fees would move to competitive levels," Bass Pro claims. This would be a boon for consumers as well, Bass Pro says, because the "high interchange fees levied on plaintiffs lead to increased merchandise prices for consumers." But University of Houston law professor Richard Alderman told Courthouse News that he doubts a competitive market would have the effect that Bass Pro imagines. "I am somewhat doubtful that eliminating the contractual limitations on pricing and terms will result in substantial competition among issuers (all of whom reap substantial profits under the current system), but there should not be restraints imposed on those who want to offer different terms or lower costs," Alderman wrote in an e-mail. He directs the university's Center for Consumer Law. "I also don't see merchants lowering prices to consumers as a result of any savings achieved through the resulting competition," Alderman added. The merchants seek class certification and treble damages for Sherman Act violations and for their losses from the interchange fees. Plaintiffs are a motley band of businesses, including Ross Dress For Less, 1-800-CONTACTS, Joe's Crab Shack, Love's Travel Stops & Country Stores and Scandinavian Airlines of North America. Professor Alderman noted that the lawsuit was filed in East Texas, which is known as a plaintiff-friendly jurisdiction. Neither Visa nor MasterCard responded to a request for comment. The Plaintiffs are represented by: Richard E. Norman, Esq. CROWLEY NORMAN LLP Three Riverway, Suite 1775 Houston, TX 77056 Telephone: (713) 651-1771 Facsimile: (713) 651-1775 E-mail: rnorman@crowleynorman.com WESTERN POWER: Parkerville Bushfire Victims Mull Class Action ------------------------------------------------------------- The Australian Associated Press reports that Parkerville bushfire victims may pursue a class action against Western Power following the release of a report into the blaze that devastated Perth's Hills region. Fifty-seven homes, seven outbuildings and about 392ha of bushland were burned after a rotten and termite-damaged privately-owned power pole toppled over in Parkerville in mid-January this year. A further six homes were partially damaged. The EnergySafety report found Western Power contractors should have observed clay deposits in the jarrah pole earlier that month, indicating extensive and prolonged termite activity. Some were near the top of the pole and would have been visible to contractors who connected a new cable to it in July 2013. The report says Western Power should have spotted the damage and notified the resident responsible for maintaining the pole. But Western Power says four of its contractors used visual and non- intrusive methods -- using a pick to estimate the depth of good wood -- to ensure the pole was safe to connect to the network, and had deemed it sound. Slater and Gordon lawyer Kevin Banks-Smith said it was clear that had Western Power implemented suitable testing methods when maintenance was performed, the extensive damage done by the fire could have been prevented. Mr. Banks-Smith said several property owners whose homes were lost or damaged had engaged the firm, which was investigating whether Western Power could be held legally responsible. Stoneville and Parkerville Progress Association chairman Greg Jones said many people were still suffering emotionally and financially from the fire but the report would help victims start thinking about compensation. "We've always believed that Western Power and its contractors have a case to answer to and the report shows who is largely to blame," Mr. Jones told AAP. Opposition spokesman for state development Bill Johnston said a thorough review into how private poles were managed was needed because the government had still not responded to the problem. "This accident may happen again tomorrow," Mr. Johnston said. WHIRLPOOL CORP: Judge Rejects TCE Class Action Certification ------------------------------------------------------------ 5News reports that a federal judge has rejected the certification of a class action lawsuit against Whirlpool Corporation, wiping out a proposed settlement between the company and nearby Fort Smith neighbors who had filed complaints against Whirlpool. Fort Smith property owners filed a class action lawsuit last year against Whirlpool because of the company's contamination of nearby groundwater with the chemical TCE. The two sides agreed on a settlement in July and have been trying to get the court to certify it ever since. U.S. District Court Judge P.K. Holmes rejected the settlement on Dec. 3 because the case does not qualify as class action, according to court records. Because the case does not meet the requirements of a class action suit, no class action settlement can be approved, Holmes said in his order. Environmental activist Erin Brockovich came to Fort Smith and spoke with nearly 300 people on March 26 about contaminated groundwater following the chemical spill at the Whirlpool plant. The TCE leaked from the plant and spread north to the neighboring residences. TCE was used as a degreasing solvent at the plant between the late 1960s and early 1980s. Multiple lawsuits were filed against Whirlpool seeking damages for harm caused by the leaked chemical. Some of the lawsuits were gathered together last year and earlier this year as part of a class action lawsuit. The settlement reached in that lawsuit included the following stipulations: * Property owners inside the area bounded by Ingersoll Ave, Brazil Ave., Jenny Lind Rd., and Ferguson St. will receive either an amount equal to the devaluation estimated by the County assessor or the devaluation as determined by an independent property appraiser. * Class members outside this area will receive $5,000, and possibly more in the future, if TCE is detected above threshold levels in groundwater beneath their property. * Property owners agree to allow access to their property for testing and remediation activities, record a deed restriction prohibiting new wells on their property, and release Whirlpool from property damage claims. * Each class member will receive formal notice of the resolution, as well as an opportunity to opt out of the agreement. A federal Court will be required to approve the agreement. Whirlpool has agreed to pay court approved fees and costs incurred by the class members. WINDERMERE COURT: Settles Apartment Fire Class Action for $4.75MM ----------------------------------------------------------------- P.J. D'Annunzio, writing for The Legal Intelligencer, reports that the parties in a class action composed of tenants whose possessions were destroyed during an apartment building fire and subsequent demolition have reached a $4.75 million settlement, attorneys in the case have said, pending approval from the court. The plaintiffs in Schall v. Windermere Court Apartments sued the building's owners, New Jersey-based brothers Sam, David and Aron Ginsberg, and their property management companies over the Windermere apartment blaze that occurred in West Philadelphia on Jan. 10, 2012. The settlement was reached three days into trial in Philadelphia Court of Common Pleas Judge Mary Colins' courtroom. According to the Ginsberg brothers' court papers, the defendants previously offered to settle with the 100-plus class members for $1.5 million. Thomas More Marrone and Ronald L. Greenblatt of Philadelphia-based Greenblatt, Pierce, Engle, Funt & Flores represented the class members. "It was an incredible honor to prepare this case over the past four years and to try in front of a jury on behalf of these wonderful people," Mr. Marrone said. "They were put out on the street with nothing but the clothes on their backs. They lost everything they owned, but most importantly they lost their peace of mind . . . now they have justice." Andrew S. Kessler -- kessler@litchfieldcavo.com -- of Litchfield Cavo, an attorney representing the defendants, declined to comment beyond confirming that a court transcript reflected the settlement agreement. The plaintiffs alleged in court papers that the Ginsbergs did not install a fire suppression sprinkler system in the apartment building, against the city's fire code, nor did they identify vertical air shafts in the building that purportedly caused the fire to spread throughout the structure. Additionally, the class members blamed the Ginsberg brothers for failing to properly train a Windermere employee who silenced the fire alarm by cutting power to it when it first sounded. By deactivating the alarm, court papers said, the employee shut off the alarm's zone feature that directs firefighters to the origin of the fire. According to court papers, fire crews fought the blaze all night and into the early morning hours of Jan. 11, 2012. The burnt-out Windermere remained untouched for weeks, without repairs or stabilization, court papers said, adding the Ginsbergs made no effort to recover their tenants' property. "Instead, they chose to destroy the building along with all of the class members' possessions which remained inside, except for the very few items (no more than half-a-dozen in most instances)," court papers said. "As a result, the class members lost virtually everything they owned." The defendants' papers noted the building's fire alarm sounded and all of its occupants were evacuated safely. Defense papers also said the Windermere building complied with the fire code and a sprinkler system was not required. "As the fire originated in concealed spaces and spread throughout these hidden areas, the presence of sprinklers would not have had any impact on the ability to extinguish this fire," defense papers added. Responding to the class members' claims that the Ginsbergs should have recovered the tenants' property, the defendants claimed the city's Department of Licenses & Inspections declared the building "imminently dangerous," making it illegal to enter. L&I also ordered the building's owners to demolish it within 10 days of the fire. The class members claimed the Ginsbergs, as the owners of Windermere, were allowed to enter the property despite L&I warnings. The defendants responded in their papers that "even if entry into the building was legal, the building had still been declared 'imminently dangerous' by L&I," which indicated a risk to "life and limb." "The defendants are not aware of a single decision by this commonwealth, or the enactment of any legislation, imposing duty on an actor that would require him to 'place life and limb in peril,'" defense papers said. Based on that, the defendants reasoned they had no responsibility to salvage the class members' property. WINDSOR WINDOW: Faces "Ritchie" Suit Over Defective Windows ----------------------------------------------------------- Cathy L. Ritchie, individually and on behalf of all others similarly situated v. Windsor Window Company d/b/a Windsor Windows and Doors, and Woodgrain Millwork, Inc., Case No. 9:14-cv-04734 (D.S.C., December 15, 2014), arises out of the defective windows designed, manufactured, marketed, advertised, distributed, and sold by the Defendants. The Defendants are engage in the business of designing, developing, manufacturing, marketing, and selling windows for residential use. The Plaintiff is represented by: Michael Todd Harrison, Esq. THE SANTA CLARITA FIRM 25876 The Old Road Suite 304 Stevenson Ranch, CA 91381 Telephone: (661) 257-2854 Facsimile: (661) 257-3068 E-mail: mharrison30@aol.com XL SPECIALITY: CA Seeks Guidance From Georgia Supreme Court ----------------------------------------------------------- The United States Court of Appeals sought guidance from the Supreme Court of Georgia on how to frame or answer the issues in PEDMONT OFFICE REALTY TRUST, INC., f.k.a. Wells Real Estate Investment Trust, Inc., Plaintiff-Appellant, v. XL SPECIALTY INSURANCE COMPANY, Defendant-Appellee, Case No. NO. 14-11987, NON- ARGUMENT CALENDAR, DOCKET NO. 1:13CV-02128-WSD. Piedmont was named as a defendant in a federal securities class- action suit. Plaintiffs in the Underlying Suit and Piedmont agreed to mediate the dispute. In anticipation of mediation, Piedmont sought XL's consent to settle the Underlying Suit but XL agreed to contribute no more than $1 million towards settlement. Despite XL's position on the settlement amount -- and without further notice to XL and without XL's consent -- Piedmont agreed to settle the Underlying Suit for $4.9 million. Piedmont filed a civil action against XL for breach of contract and for bad-faith failure to settle, pursuant to O.C.G.A. Sec. 33- 4-6. On the other hand, XL filed a motion to dismiss arguing that Piedmont was barred from filing suit by the plain terms of the Excess Policy which contains "Consent-to-Settle" provision and by the Georgia Supreme Court's decision in Trinity Outdoor case. In per curiam, the Appellate Court seeks guidance about Georgia Law and certified questions to the Supreme Court of Georgia. The entire record of the case and the briefs of the parties were transmitted along with this certification to the Supreme Court of Georgia. A copy of the Decision and Order dated October 21, 2014, is available at http://bit.ly/1FRRR5Bfrom Leagle.com. YAHOO INC: 9th Cir. Adopts Correction Theory in Securities Suit --------------------------------------------------------------- Marisa Kendall, writing for The Recorder, reports that a U.S. Court of Appeals for the Ninth Circuit panel on Dec. 10 seemed open to holding company executives to a higher standard in their communications with investors -- a precedent-setting change that could give plaintiffs securities lawyers grounds to celebrate. Federal securities law prohibits company executives from making false or misleading financial statements, but current Ninth Circuit case law doesn't impose on executives who unknowingly misspeak a duty to later correct what they said. That could change if plaintiffs prevail in a securities suit against Yahoo Inc. that accuses executives of failing to correct false statements about their investment in Chinese company Alibaba Group Holding Ltd. Plaintiffs argue that executives misled investors in 2011, allowing them to believe Yahoo still controlled shares of Alipay -- a lucrative Alibaba company similar to PayPal -- when in reality, the shares had been sold for far less than they were worth. Plaintiffs say Yahoo admits executives knew by March of that year they no longer owned the stock but never corrected prior false statements. Judges Alex Kozinski, Johnnie Rawlinson and Mary Murguia heard arguments Dec. 10 from Robbins Geller Rudman & Dowd partner Susan Alexander for plaintiffs, and Morrison & Foerster partner Jordan Eth -- jeth@mofo.com -- for Yahoo. Judge Kozinski pointed out that several circuit courts, including the First, Second and Seventh, have adopted what he called "this new-fangled correction theory." "It seems to me there's something to be said in following something like this, to have federal law be uniform," Judge Kozinski said. "We have to either follow these other circuits, or create a circuit split." Mr. Eth, arguing for Yahoo, countered that the U.S. Supreme Court has never ruled executives have a duty to correct false statements. But even if that were the law of the land, he said, it wouldn't apply in Yahoo's case. Eth argued the statements in question were mere corporate puffery and included comments that the Alibaba CEOs were running the companies well, and that Yahoo was interested in Alipay's long-term value. Yahoo acquired 46 percent of Alibaba Group in 2005, which also gave Yahoo significant interest in Alipay. For years, Yahoo executives consistently touted the value of Alipay to investors, according to plaintiffs. But in 2010, new Chinese regulations made it more difficult for foreign entities to own companies such as Alipay. As a result, Alibaba sold its shares of Alipay for $46 million -- an asset plaintiffs say was worth closer to $5 billion or $6 billion. Plaintiffs sued Yahoo in June 2011 in the U.S. District Court for the Northern District of California. A year later Judge Charles Breyer dismissed the case, agreeing with Yahoo that the statements in question were vague and generalized claims, or puffery. And Judge Breyer ruled other Yahoo statements were not actionable because the executives never actually mentioned Alipay by name. On April 19, 2011, Yahoo's then-chief financial officer, Timothy Morse, announced Yahoo's financial results for the first quarter of 2011 to investors on a conference call. Those Alibaba valuations did "not include estimates of the value of Alibaba's privately held businesses," Mr. Morse said, according to the complaint. Plaintiffs argue that Alipay was one of the "privately held businesses," and Morse had neglected to mention Yahoo no longer owned any company shares. Judge Murguia suggested Breyer might be right, and Yahoo might be in the clear, because Morse didn't specifically mention Alipay. Alexander, arguing for plaintiffs, conceded Morse didn't name Alipay on that occasion, but he had named the company in that same context many times before. "By then," she said, "a reasonable investor would have known exactly what they were talking about because they had said it so many times." Mr. Eth scoffed at that argument. "There's no case, no case in the Ninth Circuit or anywhere, that supports that theory," he said. Mr. Eth continued to say that Morse was not touting Alipay, by name or otherwise, during that call. Judge Kozinski challenged Mr. Eth. "Why on God's earth would they say this does not include these assets, unless it was to imply to investors this is something pretty good?" Judge Kozinski asked. "Why is that not touting? What could it possibly be other than touting?" ZIMMER INC: 5th Cir. Remands Implant Case for Evidentiary Hearing ----------------------------------------------------------------- Laura Castro, writing for The National Law Journal, reports that the Fifth Court of Appeals in Texas has ruled a trial court erred when it decided medical company Zimmer Inc. must retry a metal implant suit because of alleged juror misconduct. The Texas appellate court held that the trial judge in the 366th Judicial District Court in Collin County, Texas, incorrectly granted a new trial in this product liability suit, In Re Zimmer Inc., brought by implant recipient Don Gustafson claiming faulty implants in his leg left him permanently disable. Writing for the court, Justice Molly Francis said it was granting Zimmer's request for mandamus relief because it concluded the trial court abused its discretion in ordering a new trial based only on affidavit purporting to show evidence of juror misconduct. Mr. Gustafson sued Zimmer alleging that the company's metal plates put in his fractured leg after a motorcycle accident were defective in design because they broke and caused him further injury. Mr. Gustafson requested a new trial after jury returned a 10-2 verdict in Zimmer's favor. In doing so, Mr. Gustafson asserted that the jury had engaged in misconduct and the jury's finding the Zimmer plate was not defective was against the great weight and preponderance of the evidence. In support of his motion, Mr. Gustafson provided affidavits from the two dissenting jurors alleging several incidents of purported juror misconduct. The appellate court ruled the trial court should have held an evidentiary hearing in open court with Mr. Gustafson arguing that the misconduct occurred, was material, and probably caused injury. "A trial judge ruling on a motion for new trial based on affidavits of juror misconduct alone cannot perform the critical function of assessing the credibility of the affiants, who are making serious charges about the manner in which their fellow jurors have discharged their duties," Justice Francis said. The court added it would not remand the case for an evidentiary hearing. The appeals court instructed the trial judge to vacate its April 2014 order granting the plaintiff's motion for a new trial. "A trial court has considerable discretion in granting a new trial, but that discretion has limits. Its 'discretion should not, and does not, permit a trial judge to substitute his or her own views for that of the jury without a valid basis,'" Justice Francis wrote. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Ma. Cristina Canson, Noemi Irene A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo, Christopher G. Patalinghug, and Peter A. Chapman, Editors. Copyright 2014. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000 or Nina Novak at 202-362-8552. * * * End of Transmission * * *