/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/141229.mbx C L A S S A C T I O N R E P O R T E R Monday, December 29, 2014, Vol. 16, No. 258 Headlines AFFIRMATIVE INSURANCE: La. Supreme Court Denies Writ to Appeal AFNI INC: Violates Fair Debt Collection Act, Class Suit Claims AMERICAN ADJUSTMENT: Sued for Violating Fair Debt Collection Act AMERICAN APPAREL: Faces "Doncouse" Suit Alleging ADA Violations APOLLO GROUP: 9th Cir. Affirms Dismissal of Investor's Class Suit APPLE INC: Five Sub Plaintiffs in iTunes Antitrust Suit Submitted APPLE INC: Seeks to End Decade-Old iTunes Antitrust Class Suit APPLE INC: Wins Jury Verdict in iTunes Antitrust Class Suit BANK OF AMERICA: Wis. Judge Denies Class Cert. in FCRA Suit BLUE EARTH: Faces "Cianci" Class Action in C.D. Calif. BLUE SHIELD: Sued for Not Amending Error That Overcharged Members BOSTON MARKET: W.D. Pa. Judge Denies Bid to Dismiss ADA Suit BROOKFIELD DTLA: Parties to Merger Suit in Settlement Talks CAFEPRESS INC: Desmarais and Jinnah Lawsuits Consolidated CANNAVEST CORP: Court Has Not Appointed Lead Plaintiff CARGILL INC: Agrees to Pay $6.1-Mil. to Settle Sweetener Dispute CAVALRY SPV: Accused of Violating Fair Debt Collection Act CB FINANCIAL: Hearing Date Not Yet Set in Notice of Appeal CHANTICLEER HOLDINGS: Settlement in "Howard" Action Now Final CHILDREN'S CREATIVE: Calif. Court OKs "Hernandez" Settlement CITIZENS FINANCIAL: Defending Against TCPA Litigation CITIZENS FINANCIAL: Defending Against LIBOR Litigation CONTINENTAL CASUALTY: Court Clarifies Coverage in Policy Claims CUBIST PHARMACEUTICALS: Being Sold for Too Little, Suit Claims DARDEN RESTAURANTS: Accused of Sending Unsolicited Fax Adverts DIALOGIC INC: Faces "Bushansky" Class Action in NJ State Court DINEEQUITY INC: 3d Cir. Affirms Dismissal of "Watkins" Suit DOLE PACKAGED: Dismissed From Frozen Berries and Fruit Cups Suit EL PALACIO DE LA COMIDA: Removes "Subiaurt" Suit to S.D. Florida ELDORADO RESORTS: Plaintiffs in Merger Suit to Dismiss Claims ENOVA INT'L: Nev. Court Has Not Ruled on Summary Judgment Motion EXAMSOFT WORLDWIDE: "Rangi" Suit Stayed Pending Global Mediation FLINT, MI: Judge Declines Retirees' Bid to Revise Prior Order FOOT LOCKER: Court Amends Class Cert. Ruling in "Osberg" Suit FOUR OAKS: Class Action in N.D. Georgia Dismissed G&S PORT: Violates Americans with Disabilities Act, Suit Claims GEICO INDEMNITY: Removes "Perez" Suit to Florida District Court GENTIVA HEALTH: Seeks to Drop Bailey Plaintiffs for Misjoinder GENTIVA HEALTH: Status Conference in "Wilkie" Case Set for June GENTIVA HEALTH: Lead Plaintiff Files Cert. Bid in Securities Suit HOOPER HOLMES: Objects to Judge's Recommendation to Certify Class HOOPER HOLMES: Settled Individual Claim With Named Plaintiff HOUSTON AMERICAN: Parties Reach Agreement to Settle Class Suit IBIO INC: Faces "Pena" Class Action in Delaware IMH FINANCIAL: Completes Issuance of Settlement Notes INDIANAPOLIS: Summary Judgment Order in "Cox" Suit Reversed ITT EDUCATIONAL: Parties in Securities Case Engaged in Discovery ITT EDUCATIONAL: Defending Against "Banes" Securities Class Suit ITT EDUCATIONAL: Defending Against "Tarapara" Class Action ITT EDUCATIONAL: Defending Against "Jindal" Class Action ITT EDUCATIONAL: Defending Against "Gallien" Class Action JOE'S CRAB: Employees' Suit Can Proceed as Class Action JUMEI INTERNATIONAL: Faces Suit Over Initial Public Offering KINDRED HEALTHCARE: Notice of Class Action Certification Mailed KINDRED HEALTHCARE: Paid $0.7 Million to Settle Class Action KINDRED HEALTHCARE: Faces Pines Nursing Home Class Action MABVAX THERAPEUTICS: Reached Settlement in Merger Class Action MANDALAY DIGITAL: Appeal in Class Action Now Under Review MCCABE WEISBERG: SDNY Court Narrows "Jones-Bartley" FDCPA Suit MEDTRONIC INC: Removes "Lane" Suit to Tennessee District Court MEDTRONIC INC: Removes "Miller" Suit to Tennessee District Court MEKKA MIAMI: Removes "Abarca" Suit to Florida District Court NATIONAL WATER: NJ Court Approves $250,000 Deal in "Mulroy" Suit MICHAEL HAINES: Tenn. App. Affirms Ruling in "Haiser" Suit NY COMMUNITY BANCORP: E.D.N.Y. Judge Narrows "Garnet-Bishop" Suit NYC HOUSING AUTHORITY: Settlement in "Shepard" Suit Has Final OK ONE ON ONE MARKETING: Faces Suit in S.C. for Violating TCPA OVERLAND STORAGE: Entered Into MOU to Settle Consolidated Action P.F. CHANG'S: Court Dismisses Two Suits Over Security Breach PENNSYLVANIA: Doctor's Bid to Dismiss "Sanchez" Suit Granted PLASMATECH BIOPHARMA: 3rd Circuit Remands Case to District Court PLASTIC2OIL INC: Further Briefing Okayed to Support Settlement QC HOLDINGS: North Carolina Supreme Court Refused to Hear Appeal QC HOLDINGS: Settlement of British Columbia Case to be Finalized QC HOLDINGS: Trial in Calif. Case Scheduled for Early 2016 RALPHS GROCERY: Appeals Court Flips Ruling on Arbitration Bid RCS CAPITAL: Final Approval Hearing Set for January 9 RCS CAPITAL: Lead Plaintiffs File Direct Class Action Complaint REMINGTON ARMS: M.D.N.C. Judge Dismisses "Maxwell" Suit RIVERSIDE, CA: Sued for Seizing Newborn Baby Without Reason ROCKET FUEL: Faces Two Class Actions Over Public Offering SAFEWAY INC: Court Grants Summary Judgment in "Rodman" Suit SCORES HOLDING: Has $59,084 Class Action Settlement Receivable SKLAR-MARKIND: "Brown" FDCPA Suit to Proceed in Arbitration SKYPEOPLE FRUIT: Paid $2,200,000 to Settle "Lewy" Class Action SONY COMPUTER: Court Refuses to Dismiss Suit Over 'Killzone' Game SPENDSMART NETWORKS: Expects Discovery to be Completed This Month STATE FARM: Crawford's Auto Center Suit Moved to M.D. Fla. SWS GROUP: Parties Reach MOU to Settle Consolidated Action TRAVELERS PROPERTY: 3d Cir. Flips in Part Ruling in "Judon" Suit TREMOR VIDEO: Files Reply in Support of Case Dismissal Bid UNI-PIXEL INC: Agrees to Settle Shareholder Litigation UNITED HEALTHCARE: Court Trims Suit Over Employee Benefit Plan US HEALTH DEPARTMENT: Sued by Arapaho Tribe Over Obamacare Issues USI INC: Faces "P & S" Class Suit in Connecticut District Court VERIZON NEW YORK: Removes "Weider" Class Suit to E.D. New York WALGREEN CO: Accused of Hiding Malfeasance Claims Made by Ex-CFO WEST ASSET: Sued in N.Y. for Violating Fair Debt Collection Act WILSHIRE CONSUMER: Has Invaded Class Members' Privacy, Suit Says ********* AFFIRMATIVE INSURANCE: La. Supreme Court Denies Writ to Appeal -------------------------------------------------------------- Affirmative Insurance Holdings, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that Plaintiff in a class action lawsuit filed a writ to appeal to the Louisiana Supreme Court, which was denied on October 3, 2014, rendering a Third Circuit's decision in the Company's favor final. On March 20, 2013, the Company was served with a Class Action Petition for Damages and Penalties for Arbitrary and Capricious Behavior filed in the 13th Judicial District Court, Parish of Evangeline, Louisiana against USAgencies Casualty Insurance Company (USAgencies), a wholly-owned subsidiary of AIC. The named plaintiffs allege that the denial of their first-party property damage claim based on USAgencies' policy exclusion for driving under the influence of alcohol was arbitrary and capricious, and that USAgencies' enforcement of the subject policy exclusion violates Louisiana public policy. On August 2, 2013, the Court ruled that USAgencies' policy exclusion violated Louisiana public policy and was unenforceable. USAgencies pursued an appeal of this ruling in the Louisiana Third Circuit Court of Appeal. On June 4, 2014, the Louisiana Third Circuit Court of Appeal entered its opinion reversing the lower court ruling and finding in favor of USAgencies on all claims. Plaintiff filed a writ to appeal to the Louisiana Supreme Court, which was denied on October 3, 2014, rendering the Third Circuit's decision in the Company's favor final. This matter is now closed. AFNI INC: Violates Fair Debt Collection Act, Class Suit Claims -------------------------------------------------------------- Joseph Schwartz, on behalf of himself and all similarly situated consumers v. AFNI, Inc., Case No. 1:14-cv-07339-ENV-RML (E.D.N.Y., December 17, 2014) alleges violations of the Fair Debt Collection Practices Act. The Plaintiff is represented by: Adam Jon Fishbein, Esq. ADAM J. FISHBEIN, ATTORNEY AT LAW 483 Chestnut Street Cedarhurst, NY 11516 Telephone: (516) 791-4400 Facsimile: (516) 791-4411 E-mail: fishbeinadamj@gmail.com AMERICAN ADJUSTMENT: Sued for Violating Fair Debt Collection Act ---------------------------------------------------------------- Kevin Jackson, on behalf of himself and all others similarly situated v. American Adjustment Bureau, Inc., and John Does 1-25, Case No. 2:14-cv-07852-ES-MAH (D.N.J., December 17, 2014) arises from the Defendants' alleged violation of the Fair Debt Collection Practices Act, which prohibits debt collectors from engaging in abusive, deceptive and unfair practices. American Adjustment Bureau, Inc., is a foreign corporation with its principal executive office located in Waterbury, Connecticut. AAB is a corporation that uses the mail, telephone, and facsimile and regularly engages in business the principal purpose of which is to attempt to collect debts alleged to be due another. The Doe Defendants are currently unknown. The Plaintiff is represented by: Joseph K. Jones, Esq. Benjamin J. Wolf, Esq. LAW OFFICES OF JOSEPH K. JONES, LLC 375 Passaic Avenue, Suite 100 Fairfield, NJ 07004 Telephone: (973) 227-5900 Facsimile: (973) 244-0019 E-mail: jkj@legaljones.com bwolf@legaljones.com AMERICAN APPAREL: Faces "Doncouse" Suit Alleging ADA Violations --------------------------------------------------------------- Graciela Bretschneider Doncouse v. American Apparel Retail, Inc., a California Corporation, d/b/a American Apparel, and The Andrews Organization, Inc., a New York Corporation, Case No. 1:14-cv- 09986-PGG (S.D.N.Y., December 18, 2014) is brought for injunctive relief, attorneys fees and costs pursuant to the Americans with Disabilities Act, the New York City Human Rights Law, and the New York State Human Rights Law. Ms. Doncouse suffers from a disability causing her to be a paraplegic. She is wheelchair-bound and uses a wheelchair for mobility. The Defendants are authorized to conduct, and are conducting business within the state of New York. American Apparel Retail, Inc., is the lessee and operator of the real property, and the owner of the improvements where the Subject Facility is located. The Plaintiff is represented by: Bradly Gurion Marks, Esq. THE MARKS LAW FIRM, PC 175 Varick Street, 3rd Floor New York, NY 10014 Telephone: (646) 770-3775 Facsimile: (646) 867-2639 E-mail: Brad@markslawfirm.net APOLLO GROUP: 9th Cir. Affirms Dismissal of Investor's Class Suit ----------------------------------------------------------------- Claims that the for-profit education company Apollo Group inflated its worth with lies and sketchy recruitment tactics failed to impress the 9th Circuit on December 16, reports Tim Hull at Courthouse News Service. The ruling comes more than four years after the U.S. General Accountability Office embarrassed 15 for-profit colleges with a report detailing how they encouraged undercover investigators posing as potential students to falsify financial aid information, or supplied inaccurate information about tuition costs and accreditation. Investors in Arizona-based Apollo, which owns the ubiquitous University of Phoenix, brought a deluge of class actions that false financial reports and inflated student-recruitment numbers were to blame for the $46 million in stock sold between May 2007 and October 2010. U.S. District Judge James Teilborg consolidated the actions in Phoenix but ultimately dismissed them after finding that the investors had failed state a valid claim for securities fraud. In affirming December 16, the 9th Circuit found that the statements and misrepresentations in question were mere "business puffing." The investors' complaint lacked sufficient detail to meet the relatively high bar for pleadings in such securities actions, the court found, also citing the failure to show that Apollo acted with an evil mind, misstated financial numbers, or used deceptive recruiting tactics as a general, companywide rule. "'Puffing' concerns expressions of opinion, as opposed to knowingly false statements of fact," Judge Milan Smith wrote for a three-judge panel. "The statements the plaintiffs allege Apollo made are inherently subjective 'puffing' and would not induce the reliance of a reasonable investor." The evidence of wrongdoing that the plaintiffs offered meanwhile did not show "widespread deception" on the part of the company, the court found. "The plaintiffs rely on statements by various anonymous employees and executives who suggest that they personally witnessed faulty recruiting or attended meetings where Apollo representatives discussed marketing to unfit students," Smith wrote. "The plaintiffs do not provide specificity about these meetings and do not discuss what made students unfit. Instead, the plaintiffs rely on generalizations about groups of people, such as the homeless or veterans, who were supposedly unreliable students. At best, the plaintiffs' allegations reveal isolated instances of faulty recruitment, rather than widespread deception, which would be necessary to establish fraudulent intent or reckless ignorance based on a holistic analysis." The Plaintiffs-Appellants are represented by: Stuart M. Grant, Esq. GRANT & EISENHOFER P.A. 123 Justison Street Wilmington, DE 19801 Telephone: (302) 622-7000 Facsimile: (302) 622 7100 E-mail: sgrant@gelaw.com The Defendants-Appellees are represented by: Linda T. Coberly, Esq. William P. Ferranti, Esq. Benjamin L. Ellison, Esq. WINSTON & STRAWN LLP 35 W. Wacker Drive Chicago, IL 60601-9703 Telephone: (312) 558-5600 Facsimile: (312) 558-5700 E-mail: lcoberly@winston.com bferranti@winston.com - and - David B. Rosenbaum, Esq. OSBORN MALEDON, P.A. 2929 North Central Avenue, 21st Floor Phoenix, AZ 85012-2793 Telephone: (602) 640-9345 Facsimile: (602) 640-9050 E-mail: drosenbaum@omlaw.com The appellate case is Oregon Public Employees Retirement Fund, et al. v. Apollo Group Incorporated, et al., Case No. 12-16624, in the United States Court of Appeals for the Ninth Circuit. The trial court case is Oregon Public Employees Retirement Fund, et al. v. Apollo Group Incorporated, et al., Case No. 2:10-cv-01735- JAT, in the United States District Court for the District of Arizona. APPLE INC: Five Sub Plaintiffs in iTunes Antitrust Suit Submitted ----------------------------------------------------------------- Attorneys suing Apple in a decade-old antitrust case lost two lead plaintiffs in the middle of trial -- but they have backups, they told a federal judge on December 9, reports Arvin Temkar at Courthouse News Service. Class attorneys submitted five replacement options for a new lead plaintiff on December 8 night and early December 9 morning. "We believe these people will satisfy all the requirements to be adequate class representatives," attorney Patrick Coughlin told U.S. District Judge Yvonne Gonzalez Rogers. The class action claims that certain iTunes updates prevented iPod users from playing music bought from competing music services. The trial, on its seventh day, could be delayed for a few days as attorneys vet the potential plaintiffs. The plaintiff dilemma began on the first week of December, when class attorneys dismissed one of the lead plaintiffs because she didn't purchase an iPod within the 2006 to 2009 class period. On December 8 Rogers dismissed the remaining plaintiff for the same reason, and told class attorneys to find a replacement by Dec. 9. On December 9, Apple's attorney William Isaacson, with Boies, Schiller & Flexner, asked Rogers to dismiss two of the potential replacements because they were not submitted until December 9 morning. "There's no excuse for this," he said. Rogers denied the request, but appeared frustrated at the situation. "I will consider the additional two, but it is done," she said. "There is no one else." APPLE INC: Seeks to End Decade-Old iTunes Antitrust Class Suit -------------------------------------------------------------- Apple took yet another tack December 10 to end an antitrust class action accusing the giant of monopolizing the music download market, reports Arvin Temkar at Courthouse News Service. In a motion for judgment as a matter of law filed December 10, Apple argued that class attorneys haven't made a case with enough legal basis to convince the jury that the company violated antitrust laws. The suit claims that certain iTunes updates between 2006 and 2009 prevented iPod users from playing music bought from competing music services. Much of the case centers around a program called Harmony, which allowed songs purchased from the RealPlayer Music Store -- an Apple competitor -- to be played on iPods, bypassing Apple's music protection code. Updates to iTunes later made it impossible for those songs to work on iPods. In its new motion, the company argued that plaintiffs haven't offered any evidence to show the iTunes updates weren't actual improvements. Apple personnel have testified at trial that the updates were necessary to fix security flaws. At the beginning of the trial U.S. District Judge Yvonne Gonzalez Rogers instructed jurors to decide whether the updates were "genuine product improvements," and Apple pointed to several of the benefits the updates provided in its motion. "iTunes 7.0 and 7.4 added numerous valuable features, such as full length movies, downloadable games for iPods, and the ability to transfer songs from iPods to one's desktop computer," Apple attorneys wrote. The company also argued that an economics expert called by the plaintiffs during trial didn't make a sufficient argument that there was an iPod price increase due to Apple's alleged monopoly. Furthermore, Apple lawyers said, "it is the law of this case that Apple's decision to design the iPod to work exclusively with iTunes instead of interoperating with other software was lawful, and that Apple had no duty to assist RealNetworks or others in enabling or maintaining interoperability with the iPod." Meanwhile, plaintiffs' attorneys were scrambling to find a new class representative when two lead plaintiffs were dismissed from the case during the trial for not having purchased an iPod during the class period. Rogers told class attorneys at the beginning of the week to find a replacement by December 9. The Associated Press reported December 10 that class attorneys have proposed adding Barbara Bennett, a 65-year-old business consultant from Massachusetts, as the new named plaintiff. 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 The 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: Wins Jury Verdict in iTunes Antitrust Class Suit ----------------------------------------------------------- Writing for Courthouse News Service, Arvin Temkar reports that a jury sided with Apple in a decade-long antitrust class action that accused the tech giant of monopolizing the digital player market and overcharging for iPods. The verdict came December 16 morning after only three hours of deliberation following a two-week trial, which included appearances by Apple execs and a much-anticipated video deposition by late Apple co-founder Steve Jobs. Closing arguments in the case ended December 15 afternoon. Plaintiffs representing a class of an estimated 8 million consumers and 500 businesses accused Apple of using an iTunes update to prevent iPods from playing music purchased from competing music stores. Attorneys for consumers said the update kept users locked into Apple products, allowing the company to sell iPods for inflated prices between 2006 and 2009. But Apple argued that the update allowed iTunes to play movies and show album art, and bolstered security in a system that "had flaws everywhere," according to an expert who testified for the company. The plaintiffs claimed $350 million in damages, which could have amounted to a potential $1 billion award. The jury found that iTunes update 7.0 was a genuine product improvement, which federal antitrust law allows even if it hurts rivals. The case is known as The Apple iPod iTunes Antitrust Litigation, Case No. 05-CV-0037 YGR, in the U.S. District Court for the Northern District of California. * * * Arvin Temkar, writing for Courthouse News Service, reported attorneys gave closing arguments December 15 afternoon, the final day of a two-week trial over whether Apple iTunes updates between 2006 and 2009 kept iPods from playing music purchased from competing music stores. Attorneys for consumers say the updates kept users locked in to using Apple products, allowing the company to sell iPods for inflated prices. The decade-old case has gone through a number of twists since beginning on Dec. 4. In the middle of the trial, the two class representatives who brought the suit were dismissed because they did not purchase iPods during the class period. Class attorneys substituted a new class representative, Barbara Bennett, in the second week of December. She represents an estimated eight million consumers and 500 businesses. In another shift, U.S. District Judge Yvonne Gonzalez Rogers instructed jurors to focus on only one software update to iTunes, iTunes 7.0. Initially, the case revolved around both the 7.0 and 7.4 software updates. Nevertheless, the heart of the case remains the same -- jurors must determine whether the update in question was a "genuine product improvement." Rogers reminded jurors that under antitrust law a "genuine product improvement" cannot be considered anticompetitive, regardless of its impact on a competitor. "A company has no general legal duty to assist its competitors, including by making products interoperable, licensing to competitors, or sharing information," Rogers told the jury. Much of the case centers around a program called Harmony, which allowed songs purchased from the RealPlayer Music Store -- an Apple competitor -- to be played on iPods by bypassing Apple's music protection code. Updates to iTunes later made it impossible for those songs to work on iPods. In closing arguments, Apple attorney William Isaacson, of the firm Boies, Schiller & Flexner, maintained that iTunes 7.0 was the single most significant update since iTunes launched in 2001. It included a variety of features including a cover-art gallery and the ability to play movies, as well as sorely needed security upgrades, he said. But class attorney Patrick Coughlin, of Robbins Geller Rudman & Dowd, used an analogy to remind jurors the real issue rests in coding that prevented access to music from third parties. "If a Snickers bar came out and it had more chocolate would it be better? Naturally you'd say 'yes.' But if that Snickers bar had a preservative in it that was toxic, that would not be an improved Snickers bar," Coughlin said. Isaacson countered that there is no evidence that Harmony users ever complained about how songs interacted with the iPod. "This is all made up at this point," the Apple attorney said. "It's lawyer argument, that's what it is." BANK OF AMERICA: Wis. Judge Denies Class Cert. in FCRA Suit ----------------------------------------------------------- District Judge Barbara B. Crabb of the Western District of Wisconsin granted defendant's motion for summary judgment and denied plaintiffs' motion for class certification in the case entitled JON GERMAIN and AMBER RHY, on behalf of themselves and all others similarly situated, Plaintiff, v. BANK OF AMERICA, N.A., Defendant., No. 13-CV-676-BBC (W.D. Wis.) Plaintiffs Jon Germain and Amber Rhy contended that defendant Bank of America, N.A. violated the Fair Credit Reporting Act, 15 U.S.C. Sections 1681-1681 by obtaining their consumer reports without a permissible purpose after plaintiffs had discharged their mortgages with defendants in bankruptcy. Plaintiffs argue that because their credit relationship ended with defendant as soon as their mortgages were discharged, defendant had no legitimate reason to obtain their consumer reports. Bank of America maintained three policies in obtaining review on consumer reports: -- it obtained consumer reports from a consumer reporting agency, for all customers who had adjustable rate mortgages to see how extended such customers were on credit and to determine their ability to pay their mortgages. Defendant did this without regard to whether the consumer's debt had been discharged in bankruptcy. -- defendant obtained consumer reports on an "ad hoc" basis with respect to individuals for whom it did not have a recent credit score; these individuals included customers whose mortgages had been discharged in bankruptcy. Defendant included these individuals so that it could determine their eligibility for loan modification and loss mitigation programs. -- defendant reviewed the consumer reports of customers whose mortgages had been discharged but who were in "loss mitigation" and attempting to avoid foreclosure through measures such as a deed in lieu of foreclosure. Plaintiffs seek to certify three classes under Fed. R. Civ. P. 23(b)(3), corresponding to the three different reasons defendant asserts as authority for its review of plaintiffs' consumer reports: (1) a class of plaintiffs who had adjustable rate mortgages but whose debts had been discharged in bankruptcy; (2) a class of plaintiffs who were subject to defendant's "ad hoc" policy of reviewing all accounts for which it lacked recent consumer report data; and (3) a class of plaintiffs who undertook post discharge "loss mitigation" activities such as seeking a deed in lieu of foreclosure. Defendant contends that it did have a legal purpose for each review it made of plaintiffs' consumer reports and, for that reason, was not in violation of plaintiffs' rights under the Act. Defendant moved for summary judgment. Judge Crabb granted defendant's motion for summary judgment, expressing that plaintiffs have failed to show that defendant obtained plaintiffs' consumer reports without legal purpose. Plaintiffs' motion for class certification is denied since plaintiffs' claims lack of merit, which means plaintiffs are not proper class representatives. A copy of Judge Crabb's opinion and order dated November 7, 2014 is available at http://is.gd/OLJBWqfrom Leagle.com. Plaintiffs represented by: Eric Leighton Crandall, Esq CRANDALL LAW OFFICES, SC 251 S Knowles Ave. New Richmond, WI 54017 Telephone: 715-246-1010 - and - Thomas John Lyons, Jr., Esq. CONSUMER JUSTICE CENTER, P.A. 367 Commerce Court Vadnais Heights, MN 55127 Telephone: 612-200-1495 Facsimile: 651-704-0907 - and - Thomas John Lyons, Sr. LYONS LAW FIRM PA 367 Commerce Court Vadnais Heights, MN 55127 Telephone: 651-770-9707 or 1-800-477-6910 Facsimile: 651-704-0907 Bank of America, N.A., Defendant, represented by David S. Reidy -- dreidy@reedsmith.com -- Marc Albert Lackner -- mlackner@reedsmith.com -- at Reed Smith LLP; and Rachel Anne Graham -- rachel.graham@quarles.com -- Valerie L. Bailey-Rihn -- val.bailey@quarles.com -- at Quarles & Brady LLP BLUE EARTH: Faces "Cianci" Class Action in C.D. Calif. ------------------------------------------------------ Blue Earth, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that a class action lawsuit, captioned "Jordan Cianci, individually and on behalf of all others similarly situated v. Blue Earth, Inc., Johnny R. Thomas (an executive officer), Brett Woodard (an executive officer) and John Francis (a non-executive officer)", was filed on October 24, 2014, in United States District Court Central District of California (Case No. 2:14-cv-08263) against Blue Earth, Inc. and the aforementioned officers of the Company. The complaint is based, in large part, on the allegations contained in an anonymous article posted on October 21, 2014 on the website "SeekingAlpha.com". The Company has previously responded to the "SeekingAlpha" allegations in a press release dated October 21, 2014 and refuted the veracity of the claims made in the article. The Company believes the claims contained in the complaint are without merit and will vigorously defend this matter. BLUE SHIELD: Sued for Not Amending Error That Overcharged Members ----------------------------------------------------------------- Blue Shield of California knew a computer glitch overcharged members for prescription drugs but failed to inform customers or correct the errors, according to a class action lawsuit, reports Jamie Ross, writing for Courthouse News Service. Lead plaintiff David Hoffman on December 12 sued California Physician's Service dba Blue Shield of California, in Superior Court. Hoffman claims that Blue Shield's computer system failed in late September, affecting its members' prescription-drug benefit. As a result of this error, when insured members bought a brand- name prescription drug, "Blue Shield's computer system treated the member's applicable prescription-drug deductible as if it had been completely unsatisfied," Hoffman claims. "In addition, the system thereafter failed to allow any further purchases of prescription drugs to accumulate toward the deductible for members." Hoffman claims that Blue Shield learned of the computer problem shortly after it occurred -- that members who had satisfied their prescription-drug deductible would be overcharged, and that it would take weeks to repair the problem. But Blue Shield chose not to inform members about the error, the complaint states. "It did not notify members that they had been overcharged for brand-name prescriptions that had been filled after the problem manifested in its computer system," Hoffman claims. "Nor did it warn them that, until the problem was rectified, they would be overcharged when they filled brand-name prescriptions." As a result of the error, Hoffman says he paid $245.82 for Nexium in October instead of $70, and paid $320 for Celebrex in October instead of $70. "Hundreds of thousands of Blue Shield members have been similarly affected by the computer-system error and have been overcharged for their prescriptions because Blue Shield's computer system failed to recognize that their deductibles had been satisfied," Hoffman says in the complaint. Blue Shield declined to comment December 15. Hoffman seeks class certification, restitution, an injunction, and damages and punitive damages for breach of contract, tortious breach of faith, fraudulent concealment, and business code violations. The Plaintiff is represented by: Jeffrey Ehrlich, Esq. THE EHRLICH LAW FIRM 16130 Ventura Blvd., Suite 610 Encino, CA 91436 Telephone: (818) 905-3970 Facsimile: (818) 905-3975 E-mail: jehrlich@ehrlichfirm.com BOSTON MARKET: W.D. Pa. Judge Denies Bid to Dismiss ADA Suit ------------------------------------------------------------ Magistrate Judge Robert C. Mitchell denied defendant's motion to dismiss in the case SARAH HEINZL, individually and on behalf of all others similarly situated, Plaintiff, v. BOSTON MARKET CORPORATION, Defendant, Civil Action No. 14-997 (W.D. Pa.). Plaintiff Sarah Heinzl has a mobility disability and is limited in the major life activity of walking, causing her to be dependent upon a wheelchair for mobility. Plaintiff frequently visited defendant Boston Market property. During one of her visit, she experienced unnecessary difficulty and risk due to excessive slopes in a purportedly accessible parking space and access aisle. Plaintiff brought an action against defendant alleging violations of Title III of the Americans With Disabilities Act, 42 U.S.C. Sections 12181 to 12189. Specifically, she alleges that Boston Market's facilities are not fully accessible to and independently usable by individuals who use wheelchairs for mobility, as she does, because of various barriers in the parking lot. Defendant filed a motion to dismiss for lack of jurisdiction, challenging plaintiff's standing to bring the action. Plaintiff then filed an amended complaint. Defendant again filed a motion to dismiss plaintiff's amended complaint. Magistrate Judge Mitchell denied defendant's motion to dismiss the amended complaint expressing that plaintiff has satisfied the requirements of standing, both under the intent to return test and under the deterrent effect test. A copy of Magistrate Judge Mitchell's Memorandum Opinion and Order dated November 7, 2014, is available at is http://is.gd/ghws64 from Leagle.com. Plaintiff Sarah Heinzl represented by: Benjamin J. Sweet, Esq. R. Bruce Carlson, Esq. CARLSON LYNCH LTD PNC Park 115 Federal Street, Suite 210 Pittsburgh, PA 15212 Telephone: 412-322-9243 Facsimile: 412-231-0246 Defendant Boston Market Corporation represented by: Julie R. Trotter, Esq. Melinda Evans, Esq. Michael S. Orr, Esq. CALL & JENSEN, A PROFESSIONAL CORPORATION 610 Newport Center Drive, Suite 700 Newport Beach, CA 92660 Telephone: 949-717-3000 Facsimile: 949-717-3100 E-mail: jtrotter@calljensen.com mevans@calljensen.com BROOKFIELD DTLA: Parties to Merger Suit in Settlement Talks ----------------------------------------------------------- Brookfield DTLA Fund Office Trust Investor Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that the parties to the merger-related litigation sent a joint letter to the Maryland State Court stating that since the June 18 meeting, the parties have commenced discussions towards a possible resolution of the lawsuit, requesting that the court temporarily refrain from deciding the pending motion to dismiss to facilitate the discussions, and stating that the parties will report to the court within 45 days of the October 21 letter regarding the status of their discussions. Following the announcement of the execution of the Agreement and Plan of Merger dated as of April 24, 2013, as amended (the "Merger Agreement"), seven putative class actions were filed against Brookfield Office Properties Inc. ("BPO"), Brookfield DTLA, Brookfield DTLA Holdings LLC, Brookfield DTLA Fund Office Trust Inc., Brookfield DTLA Fund Properties (collectively, the "Brookfield Parties"), MPG Office Trust, Inc., MPG Office, L.P., and the members of MPG Office Trust, Inc.'s board of directors. Five of these lawsuits were filed on behalf of MPG Office Trust, Inc.'s common stockholders: (i) two lawsuits, captioned Coyne v. MPG Office Trust, Inc., et al., No. BC507342 (the "Coyne Action"), and Masih v. MPG Office Trust, Inc., et al., No. BC507962 (the "Masih Action"), were filed in the Superior Court of the State of California in Los Angeles County (the "California State Court") on April 29, 2013 and May 3, 2013, respectively; and (ii) three lawsuits, captioned Kim v. MPG Office Trust, Inc. et al., No. 24- C-13-002600 (the "Kim Action"), Perkins v. MPG Office Trust, Inc., et al., No. 24-C-13-002778 (the "Perkins Action") and Dell'Osso v. MPG Office Trust, Inc., et al., No. 24-C-13-003283 (the "Dell'Osso Action") were filed in the Circuit Court for Baltimore City, Maryland on May 1, 2013, May 8, 2013 and May 22, 2013, respectively (collectively, the "Common Stock Actions"). Two lawsuits, captioned Cohen v. MPG Office Trust, Inc. et al., No. 24-C-13-004097 (the "Cohen Action") and Donlan v. Weinstein, et al., No. 24-C-13-004293 (the "Donlan Action"), were filed on behalf of MPG Office Trust, Inc.'s preferred stockholders in the Circuit Court for Baltimore City, Maryland on June 20, 2013 and July 2, 2013, respectively (collectively, the "Preferred Stock Actions," together with the Common Stock Actions, the "Merger Litigations"). In each of the Common Stock Actions, the plaintiffs allege, among other things, that MPG Office Trust, Inc.'s board of directors breached their fiduciary duties in connection with the merger by failing to maximize the value of MPG Office Trust, Inc. and ignoring or failing to protect against conflicts of interest, and that the relevant Brookfield Parties named as defendants aided and abetted those breaches of fiduciary duty. The Kim Action further alleges that MPG Office, L.P. also aided and abetted the breaches of fiduciary duty by MPG Office Trust, Inc.'s board of directors, and the Dell'Osso Action further alleges that MPG Office Trust, Inc. and MPG Office, L.P. aided and abetted the breaches of fiduciary duty by MPG Office Trust, Inc.'s board of directors. On June 4, 2013, the Kim and Perkins plaintiffs filed identical, amended complaints in the Circuit Court for Baltimore City, Maryland. On June 5, 2013, the Masih plaintiffs also filed an amended complaint in the Superior Court of the State of California in Los Angeles County. The three amended complaints, as well as the Dell'Osso Action complaint, allege that the preliminary proxy statement filed by MPG Office Trust, Inc. with the SEC on May 21, 2013 is false and/or misleading because it fails to include certain details of the process leading up to the merger and fails to provide adequate information concerning MPG Office Trust, Inc.'s financial advisors. In each of the Preferred Stock Actions, which were brought on behalf of MPG Office Trust, Inc.'s preferred stockholders, the plaintiffs allege, among other things, that, by entering into the Merger Agreement and tender offer, MPG Office Trust, Inc. breached the Articles Supplementary, which governs the issuance of the MPG preferred shares, that MPG Office Trust, Inc.'s board of directors breached their fiduciary duties by agreeing to a merger agreement that violated the preferred stockholders' contractual rights and that the relevant Brookfield Parties named as defendants aided and abetted those breaches of contract and fiduciary duty. On July 15, 2013, the plaintiffs in the Preferred Stock Actions filed a joint amended complaint in the Circuit Court for Baltimore City, Maryland that further alleged that MPG Office Trust, Inc.'s board of directors failed to disclose material information regarding BPO's extension of the tender offer. The plaintiffs in the seven lawsuits sought an injunction against the merger, rescission or rescissory damages in the event the merger has been consummated, an award of fees and costs, including attorneys' and experts' fees, and other relief. On July 10, 2013, solely to avoid the costs, risks and uncertainties inherent in litigation, the Brookfield Parties and the other named defendants in the Common Stock Actions signed a memorandum of understanding (the "MOU"), regarding a proposed settlement of all claims asserted therein. The parties subsequently entered into a stipulation of settlement dated November 21, 2013 providing for the release of all asserted claims, additional disclosures by MPG concerning the merger made prior to the merger's approval, and the payment, by defendants, of an award of attorneys' fees and expenses in an amount not to exceed $475,000. After a hearing on June 4, 2014, the California State Court granted plaintiffs' motion for final approval of the settlement, and entered a Final Order and Judgment, awarding plaintiffs' counsel's attorneys' fees and expenses in the amount of $475,000, which was paid by MPG Office LLC on June 18, 2014. BPO is seeking reimbursement for the settlement payment from MPG's insurers. In the Preferred Stock Actions, at a hearing on July 24, 2013, the Maryland State Court denied plaintiffs' motion for preliminary injunction seeking to enjoin the tender offer. The plaintiffs filed a second amended complaint on November 22, 2013 that added additional arguments in support of their allegations that the new preferred shares do not have the same rights as the MPG preferred shares. The defendants moved to dismiss the second amended complaint on December 20, 2013, and briefing on the motion concluded on February 28, 2014. At a hearing on June 18, 2014, the Maryland State Court heard oral arguments on the defendants' motion to dismiss and reserved judgment on the decision. On October 21, 2014, the parties sent a joint letter to the Maryland State Court stating that since the June 18 meeting, the parties have commenced discussions towards a possible resolution of the lawsuit, requesting that the court temporarily refrain from deciding the pending motion to dismiss to facilitate the discussions, and stating that the parties will report to the court within 45 days of the October 21 letter regarding the status of their discussions. While the final outcome with respect to the Merger Litigations cannot be predicted with certainty, in the opinion of management after consultation with external legal counsel, any liability that may arise from such contingencies would not have a material adverse effect on the financial position, results of operations or liquidity of Brookfield DTLA. CAFEPRESS INC: Desmarais and Jinnah Lawsuits Consolidated --------------------------------------------------------- CafePress Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that the Desmarais and Jinnah class action lawsuits were consolidated into one litigation matter. The Company said, "On July 10, 2013, a complaint captioned Desmarais v. CafePress Inc., et al. CIV-522744 was filed in the Superior Court of California, County of San Mateo naming as defendants the Company, certain of our directors, our former chief executive officer, our former chief financial officer and certain underwriters of our IPO. The lawsuit purports to be a class action on behalf of purchasers of shares issued in the IPO and generally alleges that the registration statement for the IPO contained materially false or misleading statements. The complaint purports to assert claims under the Securities Act of 1933, as amended, and seeks unspecified damages and other relief." On July 14, 2013 a similar compliant making substantially identical allegations and captioned Jinnah v. CafePress Inc., et al. CIV-522976 was filed in the same court against the same defendants. In the second quarter of 2014, the cases were consolidated into one litigation matter. CANNAVEST CORP: Court Has Not Appointed Lead Plaintiff ------------------------------------------------------ CannaVEST Corp. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that as of November 3, 2014, the Court has not issued a ruling appointing a lead plaintiff in the class action lawsuits and the Company has not yet answered the Complaint, but management intends to vigorously defend the allegations. On April 23, 2014, Tanya Sallustro filed a purported class action complaint (the "Complaint") in the Southern District of New York (the "Court") alleging securities fraud and related claims against the Company and certain of its officers and directors and seeking compensatory damages including litigation costs. Ms. Sallustro alleges that between March 18-31, 2014, she purchased 325 shares of the Company's common stock for a total investment of $15,791.00. The Complaint refers to Current Reports on Form 8-K and Current Reports on Form 8-K/A filings made by the Company on April 3, 2014 and April 14, 2014, in which the Company amended previously disclosed sales (sales originally stated at $1,275,000 were restated to $1,082,375 -- reduction of $192,625) and restated goodwill as $1,855,512 (previously reported at net zero). Additionally, the Complaint states after the filing of the Company's Current Report on Form 8-K on April 3, 2014 and the following press release, the Company's stock price "fell $7.30 per share, or more than 20%, to close at $25.30 per share." Subsequent to the filing of the Complaint, six different individuals have filed a motion asking to be designated the lead plaintiff in the litigation. The Court scheduled a hearing on August 14, 2014 to consider the motions for designation as lead plaintiff. The other individuals seeking lead plaintiff designation are: Wayne Chesner; Anamaria Schelling; Mark Williams; Otilda LaMont; Jane Ish and Steve Schuck. After a hearing held on August 14, 2014, the Court took the matter under submission. As of November 3, 2014, the Court has not issued a ruling appointing a lead plaintiff. Accordingly, the Company has not yet answered the Complaint, but management intends to vigorously defend the allegations. An estimate of the possible loss cannot be made at this time. CARGILL INC: Agrees to Pay $6.1-Mil. to Settle Sweetener Dispute ---------------------------------------------------------------- Philip A. Janquart, writing for Courthouse News Service, reports that Cargill agreed to pay $6.1 million to settle a class action accusing it of falsely advertising its synthetic Truvia sweetener as natural. U.S. District Judge Leslie Kobayashi approved the settlement on December 8, which includes $1.83 million in attorneys' fees. Four lawsuits were brought against Cargill in 2013, claiming the agribusiness behemoth intentionally misled consumers by advertising Truvia as a natural sweetener primarily manufactured from the stevia plant. Truvia, however, is "largely a synthetic and chemically produced" product, according to the May 2014 consolidated complaint. "As part of a scheme to make Truvia more attractive to consumers, boost its sales and ultimately increase its profits, Cargill uses terms such as 'Nature's Calorie-Free Sweetener' and 'Truvia sweetener comes from nature,' and natural imagery such as the leaves of stevia plants in labeling, advertising and marketing," according to the 52-page complaint. Cargill teamed up with Coca-Cola to develop the sweetener, unveiling Truvia in 2008 and revealing that it was made with an extract of the stevia plant, Rebaudioside A, according to lead plaintiff Denise Howerton. "Reb A is not the natural crude preparation of stevia, but rather is a highly chemically processed and purified form of stevia leaf extract," the complaint states. "Cargill describes the process of obtaining stevia leaf extract as 'similar to making tea,' but does not tell the consumer that Cargill adds ethanol, methanol, or rubbing alcohol to this so called 'tea' in a patented multi-step process to purify it." Howerton sued Cargill for fraud, unjust enrichment and breach of implied and express warranty under Hawaii, California and Florida state laws. The class sought preliminary and permanent injunctions, corrective advertising and information campaigns, restitution, disgorgement and damages. The parties agreed on a preliminary settlement in June this year, and were granted final approval Dec. 8. Aside from the $6.1 million settlement fund, Cargill has 90 days from the date of Kobayashi's order to change its Truvia labeling and provide more information to consumers about the product's ingredients. "The court has reviewed the memoranda, the objections and the applicable law and finds the settlement agreement fair, reasonable and adequate," Kobayashi wrote. The consolidated lawsuit is Denise Howerton, et al. v. Cargill, Inc., Case No. 1:13-cv-00336-LEK-BMK, in the U.S. District Court for the District of Hawaii. CAVALRY SPV: Accused of Violating Fair Debt Collection Act ---------------------------------------------------------- Melanie Ridgeway, individually and as Class Representative for all others similarly situated v. Cavalry SPV I, LLC and Cavalry Portfolio Services, LLC, Case No. 1:14-cv-04025-LMM-WEJ (N.D. Ga., December 18, 2014) accuses the Defendants of violating the Fair Debt Collection Practices Act. The Plaintiff is represented by: James W. Hurt, Jr., Esq. HURT, STOLZ, LLC 345 West Hancock Avenue Athens, GA 30601 Telephone: (706) 395-2750 Facsimile: (866) 766-9245 E-mail: jhurt@hurtstolz.com - and - Steven Howard Koval, Esq. THE KOVAL FIRM, LLC 3575 Piedmont Road Building 15, Suite 120 Atlanta, GA 30305 Telephone: (404) 350-5900 Facsimile: (404) 549-4654 E-mail: shkoval@aol.com CB FINANCIAL: Hearing Date Not Yet Set in Notice of Appeal ---------------------------------------------------------- CB Financial Services, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that defendants in a class action complaint filed a Notice of Appeal to appeal the dismissal ruling. A hearing date has not been set. On April 21, 2014, a class action complaint, captioned Sutton v. FedFirst Financial Corp., et al., was filed under Case No. 24C14002331, the Circuit Court in Baltimore City, Maryland, against FedFirst Financial, each of Fed First Financial's directors, and CB Financial Services, Inc. The complaint alleges, among other things, that the FedFirst Financial directors breached their fiduciary duties to FedFirst Financial and its stockholders by agreeing to sell to CB Financial without first taking steps to ensure that FedFirst Financials stockholders would obtain adequate, fair and maximum consideration under the circumstances, by agreeing to terms with CB Financial that benefit themselves and/or CB Financial that discouraged other bidders. The plaintiff also alleges that CB Financial aided and abetted the FedFirst Financial directors' breeches of fiduciary duties. The complaint seeks, among other things, an order enjoining the defendants from consummating the merger, as well as attorneys' fees and certain other damages. On June 20, 2014, the Company and the individual defendants filed a Motion to Dismiss the complaint. On July 29, 2014, the plaintiff filed an amended complaint adding an additional claim that the Form S-4 filed by CB Financial in connection with the merger contains material misstatements and omissions. FedFirst Financial and CB Financial amended their Motion to Dismiss to address the additional claims. A hearing was held on the Motion to Dismiss on September 19, 2014, and the court dismissed all claims to all defendants with prejudice. On October 17, 2014, the defendants filed a Notice of Appeal to appeal the dismissal ruling. A hearing date has not been set. CB Financial believes the factual allegations in the complaint, as amended, are without merit and is defending vigorously against the allegations in the complaint. CHANTICLEER HOLDINGS: Settlement in "Howard" Action Now Final ------------------------------------------------------------- Chanticleer Holdings, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that the Court approved the settlement, which is now final, in the class action lawsuit filed by Francis Howard. On October 12, 2012, Francis Howard ("Howard"), individually and on behalf of all others similarly situated, filed a lawsuit against the Company, Michael D. Pruitt, Eric S. Lederer, Michael Carroll, Paul I. Moskowitz, Keith Johnson (the "Individual Defendants"), Merriman Capital, Inc., Dawson James Securities, Inc. (the "Underwriter Defendants"), and Creason & Associates P.L.L.C. ("Creason"), in the U.S. District Court for the Southern District of Florida. The class action lawsuit alleges violations of Section 11 of the Securities Act against all Defendants, violations of Section 12(a)(2) of the Securities Act against only the Underwriter Defendants, and violations of Section 15 against the Individual Defendants. On February 19, 2013, Plaintiff filed an Amended Complaint alleging similar claims to those previously asserted. On March 17, 2014, the parties signed a settlement agreement for a total of $850,000, with $837,500 to be paid on behalf of the Company by its insurance carrier, and $12,500 to be paid by Creason. On August 14, 2014, the Court approved the settlement, which is now final. As a result, all claims against the Company have been dismissed with prejudice. CHILDREN'S CREATIVE: Calif. Court OKs "Hernandez" Settlement ------------------------------------------------------------ Judge Lucy H. Koh of the U.S. District Court for the Northern District of California, in an order dated Dec. 11, 2014, granted final approval of a settlement in the class action lawsuit styled MARIA HERNANDEZ, Plaintiff on behalf of herself and all others similarly situated, Plaintiff, v. CHILDREN'S CREATIVE LEARNING CENTERS; KNOWLEDGE LEARNING CORPORATION; and DOES 1 through 100, inclusive, Defendants, CASE NO. CV 13-02246 LHK (N.D. Calif.). The Plaintiff Class includes all current and former employees of Defendants Children's Creative Learning Center, Inc., and Knowledge Universe Education LLC (formerly known as Knowledge Learning Corporation) who worked as Head Teachers, Co-Teachers, Floater Teachers, Assistant Teachers, and Program Specialists at Defendants' San Jose (Cisco) Facility or Mountain View Facility at any time between August 13, 2008, and May 16, 2014. The Settlement provides a definite, immediate financial benefit of $700,000, with an average net settlement payment of approximately $2,190 per Plaintiff Class Member for all of the 232 Class Members who have not chosen to opt out of the Settlement. The Court also granted the Plaintiff's motion for an award of $168,750 in attorneys' fees and $5,000 in litigation costs, and granted the Plaintiff's motion for a class representative service payment in the amount of $7,500. A full-text copy of Judge Koh's Decision is available at http://is.gd/vYSF7Cfrom Leagle.com. STEVEN M. TINDALL, Esq. -- stindall@rhdtlaw.com -- and ROSHA K. JONES, Esq. -- rjones@rhdtlaw.com -- at RUKIN HYLAND DORIA & TINDALL LLP, San Francisco, California, ARTHUR A. NAVARETTE, Law Offices of Arthur A. Navarette, San Jose, CA, Attorneys for Individual and Representative Plaintiff Maria Hernandez. CITIZENS FINANCIAL: Defending Against TCPA Litigation ----------------------------------------------------- Citizens Financial Group, Inc. said in its Form 10-Q/A (Amendment No. 1) filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that the Company is a defendant in a purported class action complaint filed in December 2013 in the United States District Court for the Southern District of California pursuant to the Telephone Consumer Protection Act. The named plaintiff purports to represent a "national class" of customers who allegedly received automated calls to their cell phones from the bank or its agents, without customer consent, in violation of the Telephone Consumer Protection Act. The Company is vigorously defending this matter. CITIZENS FINANCIAL: Defending Against LIBOR Litigation ------------------------------------------------------ Citizens Financial Group, Inc. said in its Form 10-Q/A (Amendment No. 1) filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that the Company is a defendant in lawsuits in which allegations have been made that its parent company, RBS Group, manipulated U.S. dollar LIBOR to the detriment of the Company's customers. The lawsuits include a purported class action on behalf of borrowers of the Company whose interest rates were tied to U.S. dollar LIBOR. The plaintiffs in these cases assert various theories of liability, including fraud, negligent misrepresentation, breach of contract, and unjust enrichment. The Company is vigorously defending these matters. CONTINENTAL CASUALTY: Court Clarifies Coverage in Policy Claims --------------------------------------------------------------- Judge George Jarrod Hazel of the District Court of Maryland granted defendant's motion for judgment on the pleadings and denied plaintiff's motion for summary judgment in the case entitled W.C. AND A.N. MILLER DEVELOPMENT COMPANY, Plaintiff, v. CONTINENTAL CASUALTY COMPANY, Defendant Case No. GJH-14-00425 (D. Md.) International Benefits Group (IBG) instituted a bankruptcy proceeding in 2006. During IBG's bankruptcy proceeding, IBG's Bankruptcy Trustee commenced an adversary proceeding in the United States Bankruptcy Court for the District of New Jersey, naming as defendants, among others: Haymount Limited Partnership (HLP); the two general partners of HLP - Westminster and Haymount; Edward J. Miller, Jr., president of Haymount and chairman of Miller; and John A. Clark, vice president of Westminster and president of The John A. Clark. Judgment was entered in favor of the Trustee against HLP and others in the amount of $4,469.158.00. Miller purchased a Policy from Continental Casualty Company sometime in 2010. The Policy provided coverage for claims made between November 1, 2010 and November 1, 2011. On October 29, 2010, the same Trustee initiated a second action in the United States District Court for the District of New Jersey naming as defendants several of the same parties named in the 2006 Adversary Proceeding, including HLP, Edward J. Miller Jr., and John A. Clark. The complaint goes on to describe a number of actions allegedly taken by the defendants that, according to the Trustee, were done to transfer HLP's assets in order to make them unavailable to satisfy the $4,469,158 judgment from the 2006. On November 10, 2010, Miller provided notice to Continental -- its insurer -- of the 2010 Lawsuit and informed Continental that it believed it was entitled to coverage under its Policy. Despite Miller's demand, however, Continental advised Miller that it believed the Policy did not provide coverage for the 2010 Lawsuit. According to Continental, Miller's Policy only provided coverage for those "Claims" first made during the Policy Period of November 1, 2010 to November 1, 2011. Because, as Continental contends, the "Claim" serving as the basis for the 2010 Lawsuit was first made on March 17, 2006, the date on which the 2006 Adversary Proceeding was commenced, prior to the inception of the Policy, the 2010 Lawsuit did not trigger coverage. As such, Continental informed Miller that it would not provide a defense or defense costs to Miller or any of its affiliated persons or entities named as defendants in the 2010 Lawsuit. Miller filed a suit against Continental claiming that Continental violated its insurance contract with Miller by refusing to provide coverage to reimburse Miller for costs associated with the defense of the 2010 Lawsuit. Continental filed a motion for judgment on the pleadings while Miller filed a motion for summary judgment. Judge Hazel granted Continental's motion for judgment on the pleadings. Miller's motion for summary judgment is denied. He explains that the 2006 Adversary Proceeding and the 2010 Lawsuit are logically and causally connected by the common scheme to avoid paying monies to IBG for its role in the Haymount Project, the two events are "Interrelated Wrongful Acts" that must be treated as a single "Claim" which is deemed made on the date on which the earliest such Claim was first made. The earlier "Claim" -- the 2006 Adversary Proceeding -- was made in 2006 when the adversary complaint was served on Mr. Miller and HLP. As such, the 2010 Lawsuit is not covered under the Policy because it constitutes a "Claim" that was made four years prior to the inception of the Policy on November 1, 2010. A copy of Judge Hazel's Memorandum Opinion dated November 7, 2014 is available at http://is.gd/iOsnrRfrom Leagle.com W.C. and A.N. Miller Development Company, Plaintiff and Counter Defendant, represented by Paul J Kiernan -- paul.kiernan@hklaw.com -- at Holland and Knight LLP Continental Casualty Company, Defendant and Counter Claimant, represented by Ashley Eiler -- aeiler@wileyrein.com -- Richard A Simpson -- rsimpson@wileyrein.com -- Theodore A Howard -- toward@wileyrein.com -- at Wiley Rein LLP CUBIST PHARMACEUTICALS: Being Sold for Too Little, Suit Claims -------------------------------------------------------------- Courthouse News Service reports that Cubist Pharmaceuticals is selling itself too cheaply through an unfair process to Merck, for $102 a share or $8.4 billion, shareholders claim in a class action in Delaware Chancery Court. DARDEN RESTAURANTS: Accused of Sending Unsolicited Fax Adverts -------------------------------------------------------------- Helping Hand Caregivers Ltd., an Illinois corporation, individually and as the representative of a class of similarly- situated persons v. Darden Restaurants, Inc., a Florida corporation, Mid Wilshire Consulting, Inc. d/b/a Social Wellness, a California corporation, Brian J. Kang, an individual, and John Does 1-12, Case No. 1:14-cv-10127 (N.D. Ill., December 17, 2014) seeks statutory damages and injunctive relief arising out of unsolicited advertisements sent by fax. The Plaintiff alleges that the Defendants sent advertisements by fax to promote catered seminars about "wellness" in the workplace, including the fax for a "Lunch N Learn" seminar." The Plaintiff contends that the federal Telephone Consumer Protection Act prohibits a person from sending an advertisement by fax without the recipient's prior express invitation or permission. Helping Hand Caregivers Ltd. is an Illinois corporation with its principal place of business in Lake County, Illinois. Darden Restaurants, Inc. is a Florida corporation with its principal place of business in Orange County, Florida. Mid Wilshire Consulting, Inc., doing business as Social Wellness, is a California Corporation with its principal place of business in Los Angeles County, California. Brian J. Kang is a resident of Santa Clara County, California. The Doe Defendants are currently unknown. The Plaintiff is represented by: Phillip A. Bock, Esq. James M. Smith, Esq. Christopher P.T. Tourek, Esq. BOCK & HATCH, LLC 134 N. La Salle St., Suite 1000 Chicago, IL 60602 Telephone: (312) 658-5500 Facsimile: (312) 658-5555 E-mail: phil@bockhatchllc.com DIALOGIC INC: Faces "Bushansky" Class Action in NJ State Court -------------------------------------------------------------- Dialogic Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that on or around October 28, 2014, a purported stockholder of the Company filed a putative class action lawsuit in the Superior Court of New Jersey, Morris County, against the Company, its directors, Parent and Sub, captioned Stephen Bushansky v. Dialogic Inc., et al. The lawsuit alleges that the Company's directors breached their fiduciary duties to the Company's stockholders, and that the other defendants aided and abetted those breaches, by seeking to sell the Company through an allegedly unfair process for an unfair price on unfair terms. The lawsuit seeks, among other things, equitable relief that would enjoin the consummation of a merger transaction, rescission of the Merger Agreement (to the extent it already is implemented), and attorneys' fees and costs. Additional stockholders of the Company may file additional lawsuits that seek similar relief based on similar allegations. The Company is unable to estimate any possible loss or range of loss at this early stage in the case. DINEEQUITY INC: 3d Cir. Affirms Dismissal of "Watkins" Suit ----------------------------------------------------------- The United States Court of Appeals for the Third Circuit affirmed an order by the New Jersey district court dismissing a class action lawsuit brought by Candice Watkins against DineEquity, Inc. et al. DineEquity is the parent company of Applebee's International, Inc. and International House of Pancakes, LLC. The menus on defendants' restaurants contain lists of drinks and beverages but do not have prices on it. Candice Watkins filed a putative class action in New Jersey state court on behalf of a proposed class consisting of all customers who purchased beverages with undisclosed prices at Defendants' restaurants in the State of New Jersey. Watkins's state court complaint alleged that omitting beverage prices from restaurant menus violates both the New Jersey Consumer Fraud Act (CFA), N.J. Stat. Ann. Section 56:8-2, et seq., and Truth-in-Consumer Contract, Warranty and Notice Act or TCCWNA. Defendants removed the case to federal court. Watkins then filed a first amended complaint and dropped her CFA claim, leaving only a single count under the TCCWNA. The District Court granted Defendants' motion under Fed.R.Civ.Proc. Rule 12(b)(6) to dismiss the First Amended Complaint, without prejudice, finding that Watkins failed to state a viable claim for relief. In response, Watkins filed both a motion for reconsideration and a Second Amended Complaint. Defendants again moved to dismiss. In an order and accompanying opinion, the District Court denied the motion for reconsideration of its order dismissing the First Amended Complaint, and granted Defendants' motion to dismiss, with prejudice, the Second Amended Complaint, observing that "the Second Amended Complaint contains no new factual allegations that plausibly present a claim for liability under the TCCWNA." Watkins appealed. She contends that the District Court erred in holding that the omission of beverage prices from restaurant menus could not give rise to liability under the TCCWNA. Judge Thomas I. Vanaskie, who wrote the Third Circuit decision, rejected Watkins' arguments and affirmed for substantially the same reasons set forth by the District Court. The appellate case is entitled CANDICE WATKINS, on behalf of herself, and all others similarly situated, v. DINEEQUITY, INC.; APPLEBEE'S INTERNATIONAL, INC., d/b/a Applebee's Neighborhood Bar and Grill, d/b/a International House of Pancakes, Inc., and INTERNATIONAL HOUSE OF PANCAKES, LLC, d/b/a IHOP, No. 13-1359 (3d Cir.). A copy of Judge Vanaskie's opinion dated November 7, 2014 is available at http://is.gd/xqk3Effrom Leagle.com. Counsel to Watkins: Sander D. Friedman, Esq. Wesley Hanna, Esq. LAW OFFICE OF SANDER D. FRIEDMAN, LLC West Berlin, NJ Tel: (856) 988-7777 DineEquity et al. are represented by John B. Kearney -- kearneyj@ballardspahr.com -- Christopher N. Tomlin - tomlinc@ballardspahr.com -- at -- Ballard Spahr LLP, Cherry Hill, NJ -- Robert N. Hochman -- rhochman@sidley.com -- Theodore R. Scarborough -- tscarborough@sidley.com -- Matthew D. Taksin -- mtaksin@sidley.com -- at Sidley Austin LLP, Chicago, IL, Counsel for Appellee The Third Circuit Panel consists of Judges Joseph A. Greenaway, Thomas I. Vanaskie and Jane Richards Roth. DOLE PACKAGED: Dismissed From Frozen Berries and Fruit Cups Suit ---------------------------------------------------------------- Writing for Courthouse News Service, Jonny Bonner reports that a federal judge rejected a narrowed class action against Dole, which allegedly touted frozen berries and fruit cups as "all natural." Lead plaintiff Chad Brazil sued Dole Packaged Foods in San Jose Federal Court, in 2012. Brazil claimed that 38 Dole products labeled as "all natural fruit" contained "synthetic ingredients," including ascorbic and citric acid. Companies must refrain from the "all natural" tag under Food and Drug Administration regulations, Brazil said, if a product contains "unnatural ingredients such as added color, [or] synthetic and artificial substances." Brazil claimed Dole's products were mislabeled because they contained ingredients that precluded use of the term "natural." Brazil cited a 12-ounce bag of Dole mixed fruit, which used "the phrase 'all natural fruit' even though this product contains the following artificial ingredients: ascorbic acid, citric acid, malic acid and added flavors." Dole filed motions to dismiss original and amended complaints. Dole Food Co. was removed from the lawsuit as a result. Dole's frozen blueberries and smoothie shaker products, which Brazil testified that he never purchased, were also dismissed. The narrowed lawsuit cited 10 products: "(1) Tropical Fruit (can), (2) Mixed Fruit (cup), (3) Diced Peaches, (4) Diced Apples, (5) Diced Pears, (6) Mandarin Oranges, (7) Pineapple Tidbits, (8) Red Grapefruit Sunrise, (9) Tropical Fruit (cup), (10) Mixed Fruit (bag)." U.S. District Judge Lucy Koh granted Brazil's request for class certification in part, in June. Koh allowed a plaintiff class of Californians who purchased Dole fruit products bearing the "all natural fruit" label, from April 11, 2008, and denied Brazil's request for a nationwide class. "Dole does not dispute that a class action is superior to other available methods for the fair and efficient adjudication of this controversy," Koh wrote. "Here, the value of each individual claim is likely small, such that the only practical way for this case to proceed is as a class action. Moreover, neither party has raised any issues related to efficiency, and the court finds that this dispute is more efficiently resolved as a class action." On December 8, Koh granted Dole's request for summary judgment, ruling the company's "all natural fruit" label was not misleading to reasonable consumers under California's Unfair Competition Law (UCL). Brazil "has confirmed that his UCL unlawful claim requires a finding that Dole's 'all natural fruit' label violated the Sherman Law by misleading reasonable consumers," the 13-page ruling states. "Because the court has found no genuine dispute as to whether Dole's 'all natural fruit' label statement was misleading to reasonable consumers, the court necessarily must find no genuine dispute as to whether the Sherman Law was violated on that very basis. With no predicate violation on which to rely, Brazil's UCL unlawful claim must fail." (Citation omitted.) Koh said that when allowed the opportunity to offer evidence in response to Dole's interrogatories, Brazil declined the invitation, vowing to do so later in expert reports. "Those expert reports have come and gone, and they contain no evidence of a likelihood of deception," the ruling states. "Furthermore, the only survey evidence Brazil cites is in Brazil's opposition to the instant summary judgment motion and relates to the issue of materiality of food labels." Dole said, and Koh agreed, that Brazil offered no evidence that citric acid and ascorbic acid, the two allegedly synthetic ingredients found in the challenged products, "would not normally be expected to be in" those products, as FDA definition requires. "As binding Ninth Circuit precedent makes clear, 'a few isolated examples of actual deception are insufficient' to survive summary judgment," Koh wrote. "Where, as here, a plaintiff offers one isolated example of deception -- i.e., Brazil's -- summary judgment must be granted." The case is Chad Brazil, an individual, on his own behalf and on behalf of all others similarly situated v. Dole Packaged Foods, LLC, Case No. 5:12-cv-01831-LHK, in the U.S. District Court for the Northern District of California, San Jose Division. EL PALACIO DE LA COMIDA: Removes "Subiaurt" Suit to S.D. Florida ---------------------------------------------------------------- The class action lawsuit styled Subiaurt v. El Palacio de la Comida LLC, et al., Case No. 14-29637 CA 01, was removed from the 11th Judicial Circuit in and for Miami-Dade, Florida, to the U.S. District Court for the Southern District of Florida (Miami). The District Court Clerk assigned Case No. 1:14-cv-24747-JLK to the proceeding. The lawsuit is brought pursuant to the Fair Labor Standards Act. The Plaintiff is represented by: Edilberto O. Marban, Esq. 1600 Ponce De Leon Boulevard, Suite 902 Coral Gables, FL 33134 Telephone: (305) 448-9292 Facsimile: (305) 448-9477 E-mail: marbanlaw@gmail.com The Defendants are represented by: Miguel Armenteros, Esq. MIGUEL ARMENTEROS, P.A. 1000 Brickell Avenue, Suite 600 Miami, FL 33131 Telephone: (305) 377-0086 Facsimile: (305) 397-1136 E-mail: miguel@pbyalaw.com ELDORADO RESORTS: Plaintiffs in Merger Suit to Dismiss Claims ------------------------------------------------------------- Eldorado Resorts, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that plaintiffs in a merger class action separately moved to voluntarily dismiss their claims. In connection with the merger of Eldorado Resorts LLC ("Resorts"), and MTR Gaming Group, Inc. ("MTR Gaming"), three class action lawsuits were filed by purported stockholders of MTR challenging the Merger. All three cases were filed in the Delaware Court of Chancery. The first case was filed on September 23, 2013 and is captioned Harris v. MTR Gaming Group, Inc., et al., Case No. 8937- VCG (the "Harris Case"); the second case was filed on September 27, 2013 and is captioned Julian v. MTR Gaming Group, Inc., et al., Case No. 8950-VCG (the "Julian Case"); and the third case was filed on October 14, 2013 and is captioned Morse v. MTR Gaming, Inc., et al., Case No. 9001 (the "Morse Case"). These cases, which purported to be brought as class actions on behalf of all MTR stockholders, excluding the members of MTR's board of directors, alleged, among other things, that the consideration to be received by MTR stockholders in connection with the merger was inadequate and that MTR's directors breached their fiduciary duties to stockholders in negotiating and approving the Merger Agreement. On August 25, September 17, and October 9, 2014 Plaintiffs separately moved to voluntarily dismiss their claims. ENOVA INT'L: Nev. Court Has Not Ruled on Summary Judgment Motion ---------------------------------------------------------------- Enova International, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that the Company filed a motion for summary judgment, and the court in Nevada has not yet ruled on this motion in the class action filed by Flemming Kristensen. On March 8, 2013, Flemming Kristensen, on behalf of himself and others similarly situated, filed a purported class action lawsuit in the U.S. District Court of Nevada against the Company and other unaffiliated lenders and lead providers. The lawsuit alleges that the lead provider defendants sent unauthorized text messages to consumers on behalf of the Company and the other lender defendants violation of the Telephone Consumer Protection Act. The complaint seeks class certification, statutory damages, an injunction against "wireless spam activities," and attorneys' fees and costs. The Company filed an answer to the complaint denying all liability. On March 26, 2014, the Court granted class certification. On October 24, 2014, the Company filed a motion for summary judgment, and the court has not yet ruled on this motion. The Company believes that the plaintiff's claims in the complaint are without merit and intends to vigorously defend this lawsuit. EXAMSOFT WORLDWIDE: "Rangi" Suit Stayed Pending Global Mediation ---------------------------------------------------------------- District Judge William B. Shubb of the Eastern District of California granted the parties' joint motion to stay proceedings in the case RAVINDER RANGI and MELISSA C. MACIAS, individually and on behalf of all others similarly situated, Plaintiffs, v. EXAMSOFT WORLDWIDE, INC., Defendants, CIV. No. 2:14-01919 WBS AC (E.D. Cal.) Plaintiffs Ravinder Rangi and Melissa Macias brought this putative class action lawsuit against Examsoft, asserting various causes of action including breach of contract and negligence in connection with the alleged failure of defendant's testing software. The parties filed a joint motion to stay proceedings in light of an agreement between them and other plaintiffs in various related cases around the country to engage in global mediation. The parties request a stay of proceedings until February 13, 2015. Judge Shubb in his order dated November 6, 2014, which is available at http://is.gd/GHGiezfrom Leagle.com, granted the parties' joint motion to stay proceedings and the proceedings in the action is also stayed until February 13, 2015. The parties shall file a joint status report pursuant to Local Rule 240 with this court no later than February 13, 2015, including a report on the status of their mediation efforts. If the action is not finally resolved at the conclusion of the stay, a Status Conference pursuant to Federal Rule of Civil Procedure 16 and Local Rule 240 shall be held on March 2, 2015, at 2:00 p.m. in Courtroom 5. Ravinder Rangi and Melissa C. Macias represented by Daniel P. Mensher -- dmensher@kellerrohback.com -- Gretchen Freeman Cappio - - gcappio@kellerrohback.com -- Havila C. Unrein -- hunrein@kellerrohback.com -- Lynn Lincoln Sarko -- lsarko@kellerrohback.com; and Matthew J. Preusch -- mreusch@kellerrohback.com -- at Keller Rohrback, LLP. ExamSoft Worldwide, Inc., a Florida Corporation, Defendant, represented by Ashley E. Littlefield -- Ashley.littlefield@kirkland.com -- at Kirkland & Ellis FLINT, MI: Judge Declines Retirees' Bid to Revise Prior Order ------------------------------------------------------------- Senior District Judge Arthur J. Tarnow of the Eastern District of Michigan, Southern Division, denied plaintiffs' emergency motion to amend a prior order in the case JOHN WELCH, ET AL., Plaintiffs, v. MICHAEL BROWN, ET AL., Defendants, Case No. 12-13808 (E.D. Mich.) Plaintiffs filed a class action on behalf of retirees whose health benefits have been altered by a plan proposed by the Emergency Manager of the City of Flint. Flint filed a motion to modify preliminary injunction, which the court granted in part, allowing the Flint Emergency Manager to make limited changes to retirees' health benefits. Plaintiffs have filed an Emergency Motion to Amend/Correct the Court's Order. They request the court to add the following language to each paragraph of its previous order: "Nothing in this order shall be construed to permit the City of Flint to change or modify the City of Flint's obligations under the permanent injunction issued in the case of Yurk et al. V. City of Flint and Dicks, et al. v. City of Flint, being Case No. 01- 71149-NZ and Case No. 00-69878-NZ before the Honorable Judge Archie L. Hayman of the Seventh Circuit Court for the County of Genesee, Michigan. Nothing in this order shall be construed to permit the City of Flint to change or modify the City of Flint's obligations under the consent judgment entered in the consolidated cases of Menosky, et al. v. City of Flint and Ashley, et al. v. City of Flint,being Case No. 10-CV-11894 and Case No. 11-cv-12588 before the Honorable Judge Mark A. Goldsmith of the Eastern District of Michigan." Judge Tarnow denied plaintiffs' Emergency Motion to Amend Order, expressing that federal district courts lack jurisdiction to modify state-court orders, and he is unaware of any authority granting the Court the power to modify an order of another sitting United States District Judge. Granting Plaintiffs' Motion would be, at best, redundant and, at worst, unauthorized. "If Plaintiffs wish to enforce the orders they reference in Yurk, Dicks, Menosky, or Ashley, they must pursue whatever remedies are available to them before the appropriate courts and judges, Judge Tarnow said. A copy of Judge Tarnow's order dated November 6, 2014, is available at http://is.gd/sL8MLofrom Leagle.com. Counsel for Plaintiffs: Alec S. Gibbs, Esq. Gregory T. Gibbs, Esq. LAW OFFICES OF GREGORY T. GIBBS 717 S. Grand Traverse Street Flint, MI 48502 Telephone: (810) 239-9470 Facsimile: (810) 235-2468 Email: gibbsale@gmail.com greggibs51@sbcglobal.net Counsel for Defendants: John C. Clark, Esq. Stephen J. Hitchcock, Esq. GIARMARCO, MULLINS & HORTON, P.C. 101 West Blg Beaver Road, 10th Floor Troy, MI 48084-5280 Telephone: (248) 457-7000 Facsimile: (248) 457-7001 Email: jclark@gmhlaw.com sjh@gmhlaw.com - and - Brian M. Schwartz, Esq. Michael A. Alaimo, Esq. Richard Warren, Esq. MILLER, CANFIELD 840 W. Long Lake Road, Suite 150 Troy, MI 48098 Telephone: 248-879-2000 Facsimile: 248-879-2001 E-mail: schwartzb@millercanfield.com alaimo@millercanfield.com warren@millercanfield.com - and - Peter M. Bade, Esq. CITY OF FLINT LEGAL DEPARTMENT Room M307 3rd Floor 1101 S. Saginaw Street Telephone: (810)766-7146 Facsimile: (810)232-2114 FOOT LOCKER: Court Amends Class Cert. Ruling in "Osberg" Suit ------------------------------------------------------------- District Judge Katherine B. Forrest of the Southern District of New York granted plaintiff's motion to amend a prior class certification ruling in the case entitled, GEOFFREY OSBERG, on behalf of himself and on behalf of all others similarly situated, Plaintiff, v. FOOT LOCKER, INC., et al., Defendants., No. 07-CV- 1358 (KBF) (S.D.N.Y.) Plaintiff Geoffrey Osberg initiated a suit against defendant Foot Locker Inc., alleging violations of the Employee Retirement Income Security Act. Of the four causes of action only two remain -- the alleged violation of ERISA Section 102(a); and the alleged violations of Section 404(a). These allegations seek plan reformation on the basis that defendant made false and material misstatements and omissions in its adoption of the 1995 pension plan amendment. Defendant asserts that for claims based on misrepresentation, plaintiffs must prove individualized reliance. Plaintiffs argue that reliance is not a required element of either claim. On September 24, 2014, the Court certified a class in the ERISA action. After further briefing, including submission of materials to the Second Circuit in connection with a petition for review under Fed.R.Civ.P. Rule 23(f), the Court notified the parties that it would reconsider its prior decision -- but in doing so, it was not suggesting that it would necessarily alter its initial determination. In addition, plaintiffs have separately moved for the Court to amend its class certification ruling to include Count Three, the Section 102 "Summary Plan Description" claim, in such certification. Judge Forrest granted plaintiff's motion and the following class is certified: "All persons who were participants in the Foot Locker Retirement Plan as of December 31, 1995, who had at least one Hour of Service on or after January 1, 1996 (as defined under the Plan), and who were either paid a benefit from the Plan after December 31, 1995, or are still entitled to a benefit from the Plan; and the beneficiaries and estates of such persons and alternate payees under a Qualified Domestic Relations Order." A copy of Judge Forrest's Opinion and Order dated November 7, 2014 is available at http://is.gd/LYGbI0from Leagle.com. Geoffrey Osberg, Plaintiff, is represented by: Eli Gottesdiener, Esq. GOTTESDIENER LAW FIRM, PLLC 498 7th Street Brooklyn, NY 11215 Telephone: (718) 788-1500 Facsimile: (718) 788-1650 Email: info@gottesdienerlaw.com Foot Locker, Inc. and Foot Locker Retirement Plan, Defendant, are represented by: Michael Todd Mobley, Esq. Myron D. Rumeld, Esq. Howard Shapiro, Esq. Nichole A. Eichberger, Esq. Page Griffin, Esq. Robert W. Rachal, Esq. PROSKAUER ROSE LLP Eleven Times Square Eighth Avenue & 41st Street New York, NY 10036-8299 Telephone: 212-969-3000 Facsimile: 212-969-2900 Email: mmobley@proskauer.com mrumeld@proskauer.com howshapiro@proskauer.com neichberger@proskauer.com rrachal@proskauer.com FOUR OAKS: Class Action in N.D. Georgia Dismissed ------------------------------------------------- Four Oaks Fincorp, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that the class action lawsuit in the Northern District of Georgia was voluntarily dismissed by the plaintiff prior to a ruling on the Bank's motion to dismiss and the class action lawsuit in the Southern District of Florida has been stayed pending arbitration of the plaintiff's claims against the Bank's co-defendants. In October 2013, multiple putative class action lawsuits were filed in United States district courts across the country against a number of different banks based on the banks' alleged role in "payday lending". Four of these lawsuits, pending in the Northern District of Georgia, the Middle District of North Carolina, the District of Maryland, and the Southern District of Florida, name the Bank as one of the defendants. The lawsuits allege that, by processing Automated Clearing House transactions indirectly on behalf of "payday lenders," the Bank is illegally participating in an enterprise to collect unlawful debts and is therefore liable to plaintiffs for damages under the federal Racketeer Influenced and Corrupt Organizations Act. The lawsuits also allege a variety of state law claims. The Bank moved to dismiss each of these lawsuits. The District of Maryland granted the motion and dismissed the case; that ruling is on appeal to the United States Court of Appeals for the Fourth Circuit. The Middle District of North Carolina granted the motion in part and denied it in part. The lawsuit in the Northern District of Georgia was voluntarily dismissed by the plaintiff prior to a ruling on the Bank's motion to dismiss. The lawsuit in the Southern District of Florida has been stayed pending arbitration of the plaintiff's claims against the Bank's co-defendants. G&S PORT: Violates Americans with Disabilities Act, Suit Claims --------------------------------------------------------------- Katarzyna Cichon v. G&S Port Chester LLC, G&S Port Chester Retail 1 LLC, G&S Port Chester Retail Management 1, Inc., Panera, LLC and Take Home The Bread, LLC, Case No. 1:14-cv-09981 (S.D.N.Y., December 18, 2014) opposes the alleged pervasive, ongoing and inexcusable disability discrimination by the Defendants. The Plaintiff seeks declaratory, injunctive and equitable relief, as well as monetary damages and attorneys' fees, costs and expenses to redress the Defendants' unlawful disability discrimination against the Plaintiff, in violation of the Americans with Disabilities Act. G&S Port Chester LLC, G&S Port Chester Retail 1 LLC and G&S Port Chester Retail Management 1, Inc. own or lease the properties located at 1 Westchester Avenue and 10 Westchester Avenue in Westchester County, New York. Panera, LLC and Take Home the Bread, LLC are licensed to do and do business in New York. They operate and lease the Property located at 10 Westchester Avenue from the Defendants. The Plaintiff is represented by: Glen H. Parker, Esq. Adam S. Hanski, Esq. Robert G. Hanski, Esq. PARKER HANSKI LLC 40 Worth Street, 10th Floor New York, NY 10013 Telephone: (212) 248-7400 Facsimile: (212) 248-5600 E-mail: ghp@parkerhanski.com ash@parkerhanski.com GEICO INDEMNITY: Removes "Perez" Suit to Florida District Court --------------------------------------------------------------- The class action lawsuit styled Perez, et al. v. GEICO Indemnity Company, et al., Case No. 14-004053 CA 01, was removed from the Circuit Court of the Eleventh Judicial Circuit in and for Miami Dade County, Florida, to the United States District Court for the Southern District of Florida, Miami Division. The District Court Clerk assigned Case No. 1:14-cv-24781-MGC to the proceeding. According to the Plaintiffs, GEICO has not complied with Florida Statutes Sections 627.727(1)-(9), in that GEICO does not "fully advise" purchasers of motor vehicle insurance about UM/UIM coverage prior to their purported selection of the lowest limits of UM/UIM coverage or rejection of that coverage. Plaintiff Ricardo Perez contends that he and each of the putative class members are entitled to significantly higher coverage limits, i.e., stacked UM/UIM coverage limits equal to the bodily injury coverage limits that he and each member of the putative class selected. The Plaintiffs are represented by: Gregg Alan Silverstein, Esq. SILVERSTEIN, SILVERSTEIN, SILVERSTEIN, P.A. 20801 Biscayne Blvd., Suite 504 Aventura, FL 33180 Telephone: (305) 935-2500 Facsimile: (305) 935-3214 E-mail: gsilverstein@ssspa-law.com The Defendants are represented by: Francis Augustine Zacherl, III, Esq. SHUTTS & BOWEN LLP Miami Center, Suite 1500 201 S Biscayne Boulevard Miami, FL 33131 Telephone: (305) 347-7305 Facsimile: (305) 347-7705 E-mail: fzacherl@shutts.com - and - James P. Terpening, III, Esq. SHUTTS & BOWEN LLP 4301 W. Boy Scout Blvd., Suite 300 Tampa, FL 33607 Telephone: (813) 227-8156 Facsimile: (813) 227-8256 E-mail: jterpening@shutts.com GENTIVA HEALTH: Seeks to Drop Bailey Plaintiffs for Misjoinder -------------------------------------------------------------- Gentiva Health Services, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that the Company filed its answer and a motion to drop the Bailey plaintiffs for misjoinder in a class action lawsuit. On May 10, 2010, a collective and class action complaint entitled Lisa Rindfleisch et al. v. Gentiva Health Services, Inc. was filed in the United States District Court for the Eastern District of New York against the Company in which five former employees ("Plaintiffs") alleged wage and hour law violations. The former employees claimed they were paid pursuant to "an unlawful hybrid" compensation plan that paid them on both a per visit and an hourly basis, thereby voiding their exempt status and entitling them to overtime pay. Plaintiffs alleged continuing violations of federal and state law and sought damages under the Fair Labor Standards Act ("FLSA"), as well as under the New York Labor Law and North Carolina Wage and Hour Act ("NCWHA"). On October 8, 2010, the Court granted the Company's motion to transfer the venue of the lawsuit to the United States District Court for the Northern District of Georgia. On April 13, 2011, the Court granted Plaintiffs' motion for conditional certification of the FLSA claims as a collective action. On May 26, 2011, the Court bifurcated the FLSA portion of the suit into a liability phase, in which discovery closed on January 15, 2013, and a potential damages phase, to be scheduled pending outcome of the liability phase. Following a motion for partial summary judgment by the Company regarding the New York state law claims, Plaintiffs agreed voluntarily to dismiss those claims in a filing on December 12, 2011. Plaintiffs filed a motion for certification of a North Carolina state law class for NCWHA claims on January 20, 2012. On August 29, 2012, the Court denied Plaintiffs' motion for certification of a North Carolina state law class. The Company filed a motion for partial summary judgment on Plaintiffs' claims under the NCWHA on March 22, 2012, which the Court granted on January 16, 2013. On February 14, 2013, the Company filed two motions for partial summary judgment with regard to the Company's liability for Plaintiffs' FLSA claims. On the same day, Plaintiffs filed a motion for partial summary judgment in their favor with regard to the Company's liability. On July 26, 2013, the Court denied the Company's motion for summary judgment with regard to the Company's liability for Plaintiffs' FLSA claims and granted Plaintiffs' motion for summary judgment. On November 4, 2013, the Court denied the Company's motion to amend the District Court's July 26 Order to certify two legal issues for immediate interlocutory appeal to the Eleventh Circuit Court of Appeals. In its Order, the Court established a 30-day deadline for the Company to file its motion for decertification of the FLSA collective action class, which the Company then filed on December 4, 2013. On April 18, 2014, the Court issued an Order granting the Company's motion for decertification and dismissing the opt-in plaintiffs from the lawsuit without prejudice. On the same day, Plaintiffs filed a motion to amend the Court's Order to delay the effective date of the dismissal of the opt-in plaintiffs' claims for 60 days, until June 17, 2014. On May 8, 2014, the Court entered an Order granting Plaintiffs' motion to amend, thereby extending the effective date of dismissal through June 17, 2014. On June 17, 2014, approximately 194 of the former 999 opt-in plaintiffs who had been dismissed from this case filed a new Complaint against the Company in the United States District Court for the Northern District of Georgia as a separate, follow-on lawsuit with identical claims captioned Cynthia Bailey et al. v. Gentiva Health Services, Inc. Plaintiffs amended their Complaint on July 30, 2014 to add an additional 217 plaintiffs to the lawsuit. These were individuals who had been dismissed from the Rindfleisch lawsuit and who wished to continue to pursue their claims. Given the filing of the follow-on lawsuit, at the June 19, 2014 settlement conference in the Rindfleisch lawsuit, it was determined that this case would be stayed and administratively closed pending the outcome of global mediation of both lawsuits, which took place on September 12, 2014. The parties were unable to resolve the Rindfleisch and Bailey matters at the September 12 global mediation; however, they continue to engage in settlement negotiations notwithstanding. If there is no settlement which resolves all issues in the Rindfleisch lawsuit, this lawsuit will be re-opened upon the request of either party, so long as the request is made within 90 days following the September 12, 2014 mediation. The Company filed its answer and a motion to drop the Bailey plaintiffs for misjoinder on October 10, 2014. Plaintiffs in this lawsuit are seeking attorneys' fees, back wages and liquidated damages going back three years from the filing of the complaint under the FLSA. GENTIVA HEALTH: Status Conference in "Wilkie" Case Set for June --------------------------------------------------------------- Gentiva Health Services, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that a status conference is scheduled for June 22, 2015, in the class action complaint entitled Catherine Wilkie, individually and on behalf of all others similarly situated v. Gentiva Health Services, Inc. On June 11, 2010, a collective and class action complaint entitled Catherine Wilkie, individually and on behalf of all others similarly situated v. Gentiva Health Services, Inc. was filed in the United States District Court for the Eastern District of California against the Company in which a former employee alleged wage and hour violations under the FLSA and California law. The complaint alleged that the Company paid some of its employees on both a per visit and hourly basis, thereby voiding their exempt status and entitling them to overtime pay. The complaint further alleged that California employees were subject to violations of state laws requiring meal and rest breaks, overtime pay, accurate wage statements and timely payment of wages. The plaintiff sought class certification, attorneys' fees, back wages, penalties and damages going back three years on the FLSA claim and four years on the state wage and hour claims. The Company denies the plaintiff's allegations but, following a March 2012 mediation, agreed to pay a total settlement amount of $5 million to settle the collective and class action claims. The federal district court granted final approval of the settlement on March 26, 2013, and funds were disbursed to the participating class members, 99 percent of whom timely negotiated their settlement checks. The unclaimed wages will escheat to the State of California, and any balance remaining will be distributed to a cy pres beneficiary at the conclusion of the escheat process. A status conference is scheduled for June 22, 2015, at which time the parties will present a final accounting of the settlement fund, and the court is expected to approve distribution of the residual to the cy pres beneficiary and dismiss the case. GENTIVA HEALTH: Lead Plaintiff Files Cert. Bid in Securities Suit ----------------------------------------------------------------- Gentiva Health Services, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that the lead plaintiff filed a motion for class certification in the Federal Securities Class Action Litigation. Between November 2, 2010 and October 25, 2011, five shareholder class actions were filed against Gentiva and certain of its current and former officers and directors in the United States District Court for the Eastern District of New York. Each of these actions asserted claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the "1934 Act") in connection with the Company's participation in the Medicare Home Health Prospective Payment System ("HH PPS"). Following consolidation of the actions and the appointment of Los Angeles City Employees' Retirement System as lead plaintiff, on April 16, 2012, a consolidated shareholder class action complaint, captioned In re Gentiva Securities Litigation, Civil Action No. 10-CV-5064, was filed in the United States District Court for the Eastern District of New York. The complaint, which named Gentiva and certain current and former officers and directors as defendants, asserted claims under Sections 10(b) and 20(a) of the 1934 Act, as well as Sections 11 and 15 of the Securities Act of 1933 (the "1933 Act"), in connection with the Company's participation in the HH PPS. The complaint alleged, among other things, that the Company's public disclosures misrepresented and failed to disclose that the Company improperly increased the number of in-home therapy visits to patients for the purposes of triggering higher reimbursement rates under the HH PPS, which caused an artificial inflation in the price of Gentiva's common stock during the period between July 31, 2008 and October 4, 2011. On June 15, 2012, defendants filed a motion to dismiss the complaint. On March 25, 2013, the court granted defendants' motion to dismiss with leave to amend the complaint in accordance with the court's rulings as set forth in its March 25 order. On May 10, 2013, lead plaintiff filed a consolidated amended class action complaint, and, on June 24, 2013, defendants filed a motion to dismiss. On September 19, 2013, the court granted in part and denied in part defendants' motion to dismiss. As a result of the court's decision, the named current officers and directors were dismissed from the action, and certain claims against Gentiva and a former officer and a former officer/director remained. On October 3, 2013, the remaining defendants moved for partial reconsideration of the court's September 19 order. On December 10, 2013, the court granted in part and denied in part the remaining defendants' motion for partial reconsideration. As a result of the court's decision, Gentiva and the former officer were dismissed from the action, and only a Section 10(b) claim against the former officer/director remains. On January 9, 2014, the former officer/director filed an answer to the consolidated amended class action complaint. On January 28, 2014, lead plaintiff filed a motion for the entry of final judgment under Rule 54(b) of the Federal Rules of Civil Procedure. On March 3, 2014, the court granted in part and denied in part lead plaintiff's motion under Rule 54(b), granting the motion to the extent lead plaintiff sought final judgment for the claims brought pursuant to the 1933 Act as to all defendants, and denying the motion to the extent lead plaintiff sought final judgment for the claims brought pursuant to the 1934 Act as to all defendants other than the former officer/director. As a result of the court's decision, on March 6, 2014, the court entered final judgment in favor of all defendants on lead plaintiff's claims under Sections 11 and 15 of the 1933 Act. On October 17, 2014, lead plaintiff filed a motion for class certification. Given the preliminary stage of the action, the Company is unable to assess the probable outcome or potential liability, if any, arising from the action on the business, financial condition, results of operations, liquidity or capital resources of the Company. The Company does not believe that an estimate of a reasonably possible loss or range of loss can be made for the action at this time. The defendants intend to defend themselves vigorously in the action. HOOPER HOLMES: Objects to Judge's Recommendation to Certify Class ----------------------------------------------------------------- Hooper Holmes, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that the Company submitted its objections to the Report and Recommendation of the Magistrate Judge to conditionally certify the class of all contract examiners. On May 24, 2012, a complaint was filed against the Company in the United States District Court for the District of New Jersey alleging, among other things, that the Company failed to pay overtime compensation to a purported class of certain independent contractor examiners who, the complaint alleges, should be treated as employees for purposes of federal law. The complaints seek award of an unspecified amount of allegedly unpaid overtime wages to certain examiners. The Company filed an answer denying the substantive allegations therein. On August 1, 2014, the Magistrate Judge issued a Report and Recommendation to conditionally certify the class of all contract examiners from August 16, 2010 to the present. On August 29, 2014, the Company submitted its objections to the Report and Recommendation of the Magistrate Judge. If the Magistrate's decision stands, notice will be sent to contractors who performed work for the Company within this time period. The claim is not covered by insurance, and the Company is incurring legal costs to defend the litigation which are recorded in continuing operations. This matter relates to the former Portamedic service line for which the Company retained liability. HOOPER HOLMES: Settled Individual Claim With Named Plaintiff ------------------------------------------------------------ Hooper Holmes, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that a complaint was filed on July 30, 2013, against the Company in the California Superior Court, San Bernadino County, on behalf of a putative class of employees alleging, among other things, that the Company failed to pay wages and other compensation as required by state law. The complaint seeks award of an unspecified amount of damages and penalties. The Company has denied all of the allegations in the case and believes them to be without merit. The Company settled the individual claim with the named plaintiff in July 2014 with prejudice. As a part of the settlement, the named plaintiff agreed to dismiss the class claims, without prejudice. HOUSTON AMERICAN: Parties Reach Agreement to Settle Class Suit -------------------------------------------------------------- Houston American Energy Corp. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that the parties in the shareholder class action suit reached an agreement in principle to settle the consolidated lawsuit. On April 27, 2012, a purported class action lawsuit was filed in the U.S. District Court for the Southern District of Texas against the Company and certain of its executive officers: Steve Silverman v. Houston American Energy Corp. et al., Case No. 4:12-CV-1332. The complaint generally alleges that, between March 29, 2010 and April 18, 2012, all of the defendants violated Sections 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5 and the individual defendants violated Section 20(a) of the Exchange Act in making materially false and misleading statements including certain statements related to the status and viability of the Tamandua #1 well on the Company's CPO 4 prospect. Two additional class action lawsuits were filed against us in May 2012. The complaints seek unspecified damages, interest, attorneys' fees, and other costs. On September 20, 2012, the court consolidated the class action lawsuits and appointed a lead plaintiff and on November 15, 2012 the lead plaintiffs filed an amended complaint. The amended complaint, among other things, expanded the putative class period to November 9, 2009 to April 18, 2012 and added allegations challenging a November 2009 estimate concerning the CPO 4 prospect. On January 14, 2013, the Company filed a motion to dismiss and, on August 22, 2013, the court granted the motion and dismissed the complaint. The plaintiffs subsequently filed a Notice of Appeal of the dismissal of the complaint. On July 15, 2014, the U.S. Court of Appeals for the Fifth Circuit reversed the dismissal of the case. The appellate court ruling focused on the sufficiency of the pleadings in the case, made no determination regarding the merits of the factual allegations, and remanded the case to the District Court for further proceedings. In October 2014, the parties reached an agreement in principle to settle the consolidated lawsuit. The settlement, which provides for a $7,000,000 payment, is expected to be fully funded by the Company's insurance and is subject to preliminary and final approval of the court. Some discovery will continue prior to preliminary and final court approval. The Company believes it is probable that the court will approve the settlement and related $7,000,000 payment. As a result, the Company has recorded a litigation settlement payable as of September 30, 2014 of $7,000,000. "Though the Company believes the likelihood of approval of the settlement is probable, we cannot predict with certainty the outcome of the litigation, and if the settlement is not finally approved by the Court, we believe that we have meritorious defenses to the claims in the amended complaint," the Company said. Based on the agreement in principal to settle the case and the Company's anticipated receipt of insurance proceeds to fully fund the settlement, the Company recorded on its balance sheet a contingent liability in the amount of $7,000,000 and an offsetting contingent asset of $7,000,000 to reflect the anticipated receipt of insurance proceeds to cover the settlement. For statement of operations purposes, the contingent loss and contingent gain were netted resulting in no gain or loss. IBIO INC: Faces "Pena" Class Action in Delaware ----------------------------------------------- iBio, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that a putative class action captioned Juan Pena, Individually and on Behalf of All Others Similarly Situated vs. iBio, Inc. and Robert B. Kay was filed on October 24, 2014, in the United States District Court for the District of Delaware. The action alleges that the Company and its Chief Executive Officer made certain statements in violation of federal securities laws and seeks an unspecified amount of damages. The plaintiff and its counsel solicit shareholders of the Company to join the action and also seek to have the plaintiff appointed lead plaintiff. Neither defendant has been served with the Complaint and therefore no response to the Complaint has been made. The Company has advised its insurers of this activity and intends to vigorously defend against any claims if this action continues. The Company is unable to predict the outcome of this Complaint and therefore cannot determine the likelihood of loss nor estimate a range of possible loss. IMH FINANCIAL: Completes Issuance of Settlement Notes ----------------------------------------------------- IMH Financial Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that the during the nine months ended September 30, 2014, the Company completed the issuance of certain subordinated unsecured notes payable to participating shareholders in exchange for 1,268,675 shares of Common Stock pursuant to the legal settlement of a shareholder class action lawsuit, and recorded this treasury stock purchase at $4.9 million, representing the estimated fair value of such shares at the date of the transaction. The Company said, "At December 31, 2013, we presented this amount in the accompanying condensed consolidated balance sheet as the fair value of puttable shares pursuant to legal settlement in mezzanine equity, with an offsetting reduction of paid-in capital. The amounts of shares redeemed were recorded in treasury stock when the notes were formally issued and stock acquired in the second quarter of 2014." "Also, during the nine months ended September 30, 2014, we completed the purchase of 319,484 shares of Class B Common Stock held by an affiliate of NW Capital at a purchase price of $2.5 million, or $8.02 per share, in connection with the restructure and partial refinancing of the NW Capital note payable described in note 7. We recorded $0.5 million of the total purchase price as treasury stock based on the fair value of the common stock as of the purchase date, and $2.0 million as a component of the debt termination charge in the condensed consolidated statement of operations during the nine months ended September 30, 2014." INDIANAPOLIS: Summary Judgment Order in "Cox" Suit Reversed ----------------------------------------------------------- The Court of Appeals of Indiana reversed an order granting summary judgment in favor of Owen and Evelyn Cox in their lawsuit against the City of Indianapolis. Owen Cox and Evelyn Cox initiated a class action against the City of Indianapolis, claiming that the City acted illegally in the course of changing its method for financing sanitary sewer improvement projects. The trial court entered summary judgment for the plaintiffs and awarded damages and prejudgment interest. The City financed neighborhood sewer improvements under the "Barrett Law," which authorizes municipalities to recover the costs of sewer projects by dividing the costs among the properties that benefit and imposing assessments on the owners. In January 2001, the City determined that the Coxes would be assessed $9,075 for a sewer improvement project in their neighborhood of which the latter paid in two payments. The City then developed a new financing plan called the Septic Tank Elimination Program (STEP). As the City prepared to launch STEP, it had to decide what to do about installment payments not yet payable under the Barrett Law system. It chose to forego these future payments. On October 31, 2005, the City-County Council passed General Ordinance No. 107- 2005, which enacted STEP. On December 7, 2005, the City's Board of Public Works passed a resolution forgiving Barrett Law debts due and owing from the date of November 1, 2005 forward. The Coxes learned that their neighbors who had been paying on installment plans had been relieved from doing so. A year later, in December 2006, the Coxes sent the City a demand for refund with interest of "all payments which they made, which were required to be made on or after November 1, 2005." The City denied their request. The Coxes subsequently filed a "Claim Form" with the Marion County Auditor requesting a "partial refund" in the amount of $4,537.50. The Auditor notified the Coxes that they should direct their claim to the Department of Public Works (DPW). The Coxes then sent the form to DPW, but the record does not indicate what response it gave, if any. The Coxes filed suit on April 30, 2007, in the Marion Superior Court. They alleged that the City's refusal to refund a portion of their assessment violated Indiana Code section 36-9-39-17. They requested a pro rata refund comparable to the forgiveness provided to those with unpaid installment plan debts. They requested certification of a class of similarly-situated property owners, and the trial court agreed to certify the class. The Coxes moved for partial summary judgment, asserting a claim under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The City removed the case to the U.S. District Court for the Southern District of Indiana, which eventually granted summary judgment to the Coxes on their constitutional claim but found against them on their claim under Indiana Code section 36-9- 39-17. Meanwhile, a similar case styled as City of Indianapolis v. Armour wended its way through the appellate process in Indiana's courts. The U.S. Supreme Court eventually resolved that case, concluding that the City did not violate the Equal Protection Clause by refusing to grant pro rata refunds to citizens who had paid their assessments in lump sums while forgiving installment payments due after STEP's enactment. After the Supreme Court handed down Armour, the District Court vacated its previous grant of summary judgment to the Coxes on their Equal Protection claim. The court further vacated its grant of summary judgment to the City on Indiana Code section 36-9-39-17 and remanded that claim back to state court. On remand, the parties again filed cross-motions for summary judgment. The court granted the Coxes' motion for summary judgment and denied the City's cross-motion. It determined that the City violated Indiana Code section 36-9-39-17 or, in the alternative, violated an "implied contract," by failing to refund a pro rata share of the Coxes' payments. The court also ordered the City to pay the class $2,783,702.59 as damages plus prejudgment interest at 8% per annum, starting on November 1, 2005. Indianapolis appealed. The appellate court concluded that Cox's claims are barred. She is not entitled to summary judgment on her statutory and Indiana constitutional claims. The appellate court reversed the trial court's grant of summary judgment to Cox and remanded with instructions to grant the City's Cross-Motion for Summary Judgment. The appellate case is entitled THE CITY OF INDIANAPOLIS, INDIANA, and THE INDIANAPOLIS DEPARTMENT OF PUBLIC WORKS, Appellants- Defendants, v. EVELYN COX, Appellee-Plaintiff., No. 49A02-1309-PL- 792 (Ind. App.). A copy of Judge Shepard's opinion dated November 7, 2014 is available at http://is.gd/31DDPdfrom Leagle.com. Attorneys for Indianapolis et al. are: Alexander P. Will, Esq. Maggie L. Smith, Esq. FROST BROWN TODD LLC 201 North Illinois Street, Suite 1900 Indianapolis, IN 46204-4236 Tel: 317-237-3800 Fax: 317-237-3900 E-mail: awill@fbtlaw.com mlsmith@fbtlaw.com - and - Andrew P. Seiwert Office of Corporation Counsel City-County Building, 1601 200 E. Washington St. Indianapolis, IN 46204 Tel: (317)327-4055 Attorneys for the Coxes: William T. Rosenbaum, Esq. ROSENBAUM LAW, P.C. 8555 River Road, Suite 310 Indianapolis, IN 46240 Tel: (317) 660-4402 - and - Stephen J. Hyatt, Esq. HYATT & ASSOCIATE 6100 North Keystone, Suite 203 Indianapolis, IN 46220 Tel: 317-259-6600 The Panel for the Court of Appeals of Indiana consists of Judges Randall T. Shepard, Paul D. Mathias and Rudolph R. Pyle III. ITT EDUCATIONAL: Parties in Securities Case Engaged in Discovery ---------------------------------------------------------------- ITT Educational Services, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that the Company filed its answer to the second amended complaint in the ITT Educational Services, Inc. Securities Litigation denying all of the plaintiffs' claims and the parties are currently engaged in discovery. The Company said, "On March 11, 2013, a complaint in a securities class action lawsuit was filed against us and two of our current executive officers in the United States District Court for the Southern District of New York under the caption: William Koetsch, Individually and on Behalf of All Others Similarly Situated v. ITT Educational Services, Inc., et al. (the "Koetsch Litigation"). On April 17, 2013, a complaint in a securities class action lawsuit was filed against us and two of our current executive officers in the United States District Court for the Southern District of New York under the following caption: Massachusetts Laborers' Annuity Fund, Individually and on Behalf of All Others Similarly Situated v. ITT Educational Services, Inc., et al (the "MLAF Litigation"). On July 25, 2013, the court consolidated the Koetsch Litigation and MLAF Litigation under the caption: In re ITT Educational Services, Inc. Securities Litigation (the "Securities Litigation"), and named the Plumbers and Pipefitters National Pension Fund and Metropolitan Water Reclamation District Retirement Fund as the lead plaintiffs." "On October 7, 2013, an amended complaint was filed in the Securities Litigation, and on January 15, 2014, a second amended complaint was filed in the Securities Litigation. The second amended complaint alleges, among other things, that the defendants violated Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 promulgated thereunder by: * our failure to properly account for the 2007 RSA, 2009 RSA and PEAKS Program; * employing devices, schemes and artifices to defraud; * making untrue statements of material facts, or omitting material facts necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; * making the above statements intentionally or with reckless disregard for the truth; * engaging in acts, practices, and a course of business that operated as a fraud or deceit upon lead plaintiffs and others similarly situated in connection with their purchases of our common stock; * deceiving the investing public, including lead plaintiffs and the purported class, regarding, among other things, our artificially inflated statements of financial strength and understated liabilities; and * causing our common stock to trade at artificially inflated prices and causing the plaintiff and other putative class members to purchase our common stock at inflated prices." The putative class period in this action is from April 24, 2008 through February 25, 2013. The plaintiffs seek, among other things, the designation of this action as a class action, an award of unspecified compensatory damages, interest, costs and expenses, including counsel fees and expert fees, and such equitable/injunctive and other relief as the court deems appropriate. According to the Company, "On July 22, 2014, the district court denied most of our motion to dismiss all of the plaintiffs' claims for failure to state a claim for which relief can be granted. On August 5, 2014, we filed our answer to the second amended complaint denying all of the plaintiffs' claims and the parties are currently engaged in discovery. All of the defendants have defended, and intend to continue to defend, themselves vigorously against the allegations made in the second amended complaint." ITT EDUCATIONAL: Defending Against "Banes" Securities Class Suit ---------------------------------------------------------------- ITT Educational Services, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that a complaint in a securities class action lawsuit was filed on September 30, 2014, against the Company and two of its current executive officers in the United States District Court for the Southern District of Indiana under the caption: David Banes, Individually and on Behalf of All Others Similarly Situated v. Kevin M. Modany, et al. (the "Banes Litigation"). The Company said, "The complaint alleges, among other things, that the defendants violated Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 promulgated thereunder by: * misleading investors regarding the integrity of our financial reporting, including the reporting of the PEAKS Trust; * knowingly or recklessly making materially false and/or misleading statements and/or failing to disclose material adverse facts about our business operations and prospects, including that: * our financial statements contained errors related to the accounting of the PEAKS Trust and the PEAKS Program; and * we lacked adequate internal controls over financial reporting; * knowingly or recklessly engaging in acts, transactions, practices and courses of business that operated as a fraud or deceit upon the plaintiff and the purported class; * employing devices, schemes and artifices to defraud in connection with the purchase and sale of our common stock; * deceiving the investing public, including the plaintiff and the purported class; and * artificially inflating and maintaining the market price of our common stock and causing the plaintiff and other putative class members to purchase our common stock at artificially inflated prices." The putative class period in this action is from April 26, 2013 through September 19, 2014. The plaintiff seeks, among other things, the designation of this action as a class action, an award of unspecified damages, interest, costs and expenses, including counsel fees and expert fees, and such other relief as the court deems proper. All of the defendants have defended, and intend to continue to defend, themselves vigorously against the allegations made in the complaint. ITT EDUCATIONAL: Defending Against "Tarapara" Class Action ---------------------------------------------------------- ITT Educational Services, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that a complaint in a securities class action lawsuit was filed on October 3, 2014, against the Company and two of its current executive officers in the United States District Court for the Southern District of Indiana under the caption: Babulal Tarapara, Individually and on Behalf of All Others Similarly Situated v. ITT Educational Services, Inc., et al. (the "Tarapara Litigation"). The Company said, "The complaint alleges, among other things, that the defendants violated Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 promulgated thereunder by knowingly or recklessly making false and/or misleading statements and failing to disclose material adverse facts about our business, operations, prospects and financial results. In particular, the complaint alleges that: * we failed to consolidate the PEAKS Trust in our consolidated financial statements; * our consolidated financial statements contained errors related to the accounting of the PEAKS Trust and PEAKS Program; * we improperly accounted for our guarantee obligations under the PEAKS Guarantee; * our financial results were overstated; * we lacked adequate internal and financial controls; * our consolidated financial statements were materially false and misleading at all relevant times; * we artificially inflated and maintained the market price of our common stock, causing the plaintiff and other putative class members to purchase our common stock at artificially inflated prices; * we deceived the investing public, including the plaintiff and the purported class; and * we employed devices, schemes and artifices to defraud in connection with the purchase and sale of our common stock." The putative class period in this action is from February 26, 2013 through September 18, 2014. The plaintiff seeks, among other things: * the designation of this action as a class action; * an award of unspecified compensatory damages, including interest; * an award of reasonable costs and expenses, including counsel fees and expert fees; and * such other relief as the court deems proper. All of the defendants have defended, and intend to continue to defend, themselves vigorously against the allegations made in the complaint. ITT EDUCATIONAL: Defending Against "Jindal" Class Action -------------------------------------------------------- ITT Educational Services, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that a complaint in a securities class action lawsuit was filed on October 9, 2014, against the Company and two of its current executive officers in the United States District Court for the Southern District of Indiana under the caption: Kumud Jindal, Individually and on Behalf of All Others Similarly Situated v. Kevin M. Modany, et al. (the "Jindal Litigation"). The Company said, "The complaint alleges, among other things, that the defendants violated Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 promulgated thereunder by knowingly or recklessly making false and/or misleading statements and failing to disclose material adverse facts about our business, operations, prospects and financial results. In particular, the complaint alleges that: * our financial statements contained errors related to the accounting of the PEAKS Trust and PEAKS Program; * we lacked adequate internal controls over financial reporting; * our financial statements were materially false and misleading at all relevant times; * we engaged in acts, transactions, practices and courses of business which operated as a fraud and deceit upon the plaintiff and the purported class; * we employed devices, schemes and artifices to defraud in connection with the purchase and sale of our common stock; and * we artificially inflated and maintained the market price of our common stock, causing the plaintiff and other putative class members to purchase our common stock at artificially inflated prices." The putative class period in this action is from April 26, 2013 through September 19, 2014. The plaintiff seeks, among other things, the designation of this action as a class action, an award of unspecified damages, interest, attorneys' fees, expert fees and other costs, and such other relief as the court deems proper. All of the defendants have defended, and intend to continue to defend, themselves vigorously against the allegations made in the complaint. On November 7, 2014, the parties in the Banes Litigation, Tarapara Litigation and Jindal Litigation filed a stipulation to consolidate the Tarapara Litigation and Jindal Litigation into the Banes Litigation. ITT EDUCATIONAL: Defending Against "Gallien" Class Action --------------------------------------------------------- ITT Educational Services, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that a complaint was filed on December 17, 2013, against the Company in a purported class action in the Superior Court of the State of California for the County of Los Angeles under the following caption: La Sondra Gallien, an individual, James Rayonez, an individual, Giovanni Chilin, an individual, on behalf of themselves and on behalf of all persons similarly situated v. ITT Educational Services, Inc., et al. (the "Gallien Litigation"). The Company said, "The plaintiffs filed an amended complaint on February 13, 2014. The amended complaint alleges, among other things, that under California law, we: * failed to pay wages owed; * failed to pay overtime compensation; * failed to provide meal and rest periods; * failed to provide itemized employee wage statements; * engaged in unlawful business practices; and * are liable for civil penalties under the California Private Attorney General Act. "The purported class includes recruiting representatives employed by us during the period of December 17, 2009 through December 17, 2013. The amended complaint seeks: * compensatory damages, including lost wages and other losses; * general damages; * pay for missed meal and rest periods; * restitution; * liquidated damages; * statutory penalties; * interest; * attorneys' fees, cost and expenses; * civil and statutory penalties; * injunctive relief; and * such other and further relief as the court may deem equitable and appropriate. "We have defended, and intend to continue to defend, ourselves vigorously against the allegations made in the amended complaint." JOE'S CRAB: Employees' Suit Can Proceed as Class Action ------------------------------------------------------- Presiding Justice Dennis M. Perluss of the Court of Appeals of California, Second District, Division Seven, reversed a lower court order that denied class certification in a lawsuit by employees of Joe's Crab Shack (JCS) restaurants. The appellate case is entitled, ROBERTO MARTINEZ et al., Plaintiffs and Appellants, v. JOE'S CRAB SHACK HOLDINGS et al., Defendants and Respondents, No. B242807 (Cal. App.). Roberto Martinez, Lisa Saldana, Craig Eriksen and Chanel Rankin- Stephens are current or former employees of different Joe's Crab Shack (JCS) restaurants in California. Martinez filed the original complaint seeking to represent a class of salaried managerial employees who worked at JCS restaurants in California, alleging they had been misclassified as exempt employees and were entitled to overtime pay. The trial court denied Martinez's motion for class certification on the ground he was not an adequate class representative. Martinez did not appeal that order. The trial court permitted Saldana, Eriksen and Rankin-Stephens to join the lawsuit as named plaintiffs. Plaintiffs moved for certification of a class consisting of all persons employed by Defendants in California as a salaried restaurant employee in a Joe's Crab Shack restaurant at any time since September 7, 2003. The trial court denied the motion for class certification on the grounds plaintiffs had failed to establish (1) their claims were typical of the class, (2) they could adequately represent the class, (3) common questions predominated the claims, and (4) a class action is the superior means of resolving the litigation. The first two findings were based on plaintiffs' inability to estimate the number of hours spent on individual exempt and nonexempt tasks and their admission the amount of time spent on particular tasks varied from day to day. As to the third and fourth findings, the court acknowledged the existence of common questions of law and fact, but concluded there remained significant individual disputed issues of fact relating to the amount of time spent by individual class members on particular tasks. Plaintiffs appealed. Presiding Justice Perluss, in his opinion dated November 10, 2014, which is available at http://is.gd/XNzIi6from Leagle.com, reversed the order denying class certification and remanded the cause for proceedings not inconsistent with the opinion. Counsel for Plaintiffs and Appellants: Matthew Righetti, Esq. John Glugoski, Esq. RIGHETTI GLUGOSKI, P.C. 456 Montgomery St., Ste. 1400 San Francisco, CA 94104 Telephone: 415-983-0900 Facsimile: 415-397-9005 Counsel for Defendants and Respondents Crab Addison, Inc. and Ignite Restaurant Group, Inc.: Michael S. Kun, Esq. Ted A. Gehring, Esq. EPSTEIN BECKER & GREEN 1925 Century Park East, Suite 500 Los Angeles, CA 90067-2506 Telephone: 310-556-8861 Facsimile: 310-553-2165 Counsel for Defendant and Respondent Landry's Restaurant, Inc. Mary E. Lynch, Esq. LAW OFFICES OF MARY E. LYNCH 18301 Von Karman Avenue, Suite 1060 Irvine, CA 92612 Telephone: (949) 229-5529 Facsimile: (949) 231-5810 - and - Charles F. Barker, Esq. Karin Dougan, Esq. SHEPPARD, MULLIN, RICHTER & HAMPTON 333 South Hope Street, 43rd Floor Los Angeles, CA 90071 Telephone: 213-620-1780 Facsimile: 213-620-1398 E-mail: cbarker@sheppardmullin.com kvogel@sheppardmullin.com The panel for the Court of Appeals of California, Second District for Division Seven consists of Presiding Justice Dennis M. Perluss, Justice Fred Woods and Judge John Segal of the Los Angeles Superior Court. JUMEI INTERNATIONAL: Faces Suit Over Initial Public Offering ------------------------------------------------------------ Barbara Leonard, writing for Courthouse News Service, reports that a failure by Chinese beauty company Jumei to divulge compliance concerns hurt investors, a federal class action alleges, pointing to a 38 percent nosedive in shares. When Leo Ou Chen's 3-year-old company launched its mobile application in 2012, it had a respectable $21.8 million in sales, the complaint filed on December 12 states. Shareholder Chao Lu says the number ballooned to $233.2 million the next year, and then to $483 million in 2013. Unknown to investors before Jumei's May 2014 initial public offering, however, was that Jumei had been benefitting from relatively lax regulation by the Chinese government, according to the complaint. Lu says this changed in the months leading up to the IPO as China's State Administration of Industry and Commerce (SAIC) instituted new and more stringent "measures for the administration of online commodities trading," and a new consumer-protection law took effect. The new requirements allegedly meant big changes for Jumei, where "the online distributors (sic) also acts as a marketplace platform that provides service to third-party merchants." Lu says Jumei told prospective investors in its registration statement that it was "currently in compliance with . . . regulations in all material aspects." While touting its strong base of 1,700 suppliers and third-party merchants, however, Jumei "failed to disclose that certain of those 'third-party merchants' were actually unauthorized 'brand distributors' and/or 'resellers' who Jumei could not continue to do business with once it became a publicly traded company," the complaint states. Also omitted was the credit for Jumei's past business successes "to purchasing counterfeit or fake product and knockoffs from dubious third-party distributors and resellers, which Jumei then sold at premium prices," the complaint states. Though Jumei boasted "strong 'steady'growth in China's beauty products industry and rapid growth in online sales in recent years . . . in reality the Chinese internet beauty industry was rife with counterfeit and fake product offerings and knockoffs that threatened the nascent industry by damaging the reputation of Chinese internet sellers like Jumei," the complaint continues. Jumei was "spending tens of thousands of dollars" in early 2014 on special equipment it needed to test for authenticity under the new regulations, but it kept that from shareholders as well, Lu says. The new regulations required Jumei to eliminate dubious third- party merchants and resellers from its marketplace, but the company concealed that it would thus "be forced to offer significant cash incentives to dump a lot of the dubious inventory," according to the complaint. In addition to "a reduced product selection" from the pared-down suppliers, Jumei was faced with increasing "product costs going forward, reducing the high gross margins the company had previously been able to achieve pre-IPO through sales of less legitimately sourced product," the complaint states. In the last full quarter before its IPO, Jumei made $154.9 million in sales, and the $280 proceeds of the IPO cast it as a success, according to the complaint. But Lu says the impact of the new regulations led to disappointing results thereafter, with the gross profit margin decreasing to 22 percent from 25.9 percent the year before. Lu says American Depository Shares in Jumei were trading at below $14 at the time of the complaint's filing, "an approximately 38 percent decline from the IPO price." Lu filed the complaint against Jumei, its executives and its board in Manhattan where the company's shares trade on the New York Stock Exchange. Also named as defendants are Goldman Sachs and other underwriters that Lu says "shared approximately $19.6 million in fees collectively. These underwriters, including Credit Suisse Securities (USA) LLC; J.P. Morgan Securities LLC; China Renaissance Securities (Hong Kong) Ltd.; Piper Jaffray & Co.; and Oppenheimer & Co. Inc.; conducted "drafting sessions" with Jumei's lawyers and conducted a roadshow in New York, the complaint states. The Plaintiff is represented by: Samuel H. Rudman, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 58 S Service Rd., Suite 200 Melville, NY 11747 Telephone: (631) 454-7724 Facsimile: (631) 367-1173 E-mail: srudman@rgrdlaw.com KINDRED HEALTHCARE: Notice of Class Action Certification Mailed --------------------------------------------------------------- Kindred Healthcare, Inc. said in its Form 8-K Report filed with the Securities and Exchange Commission on November 14, 2014, that notice of class action certification and class members' right to opt out of the lawsuit was mailed to all of the Company's current and former California hospital employees. Four wage and hour class action lawsuits are currently pending against the Company in federal district court for the Central District of California, and are being addressed together by the court. Each case pertains to alleged errors made by the Company with respect to regular pay and overtime pay calculations, waiting times, meal period waivers and wage statements under California law. On March 13, 2013, the court conditionally certified five classes of the seven total classes sought for certification for discovery purposes and declined to certify two others. Notice of class action certification and class members' right to opt out of the lawsuit was mailed to all of the Company's current and former California hospital employees. The Company intends to vigorously defend these claims. KINDRED HEALTHCARE: Paid $0.7 Million to Settle Class Action ------------------------------------------------------------ Kindred Healthcare, Inc. said in its Form 8-K Report filed with the Securities and Exchange Commission on November 14, 2014, that a wage and hour class action lawsuit against the Company alleging violations of federal and state wage and hour laws is pending in federal district court for the Northern District of Illinois. This lawsuit pertains to the Company's previous automatic meal break deduction practice for non-exempt employees in the Company's hospitals located outside California. The court granted conditional class certification in part on June 11, 2013. This lawsuit has been settled in principle by the Company's agreement to pay $0.7 million to claimants from the Company's five Illinois hospitals, plaintiffs' attorney's fees and certain administrative costs, subject to reaching a written settlement agreement and obtaining court approval. KINDRED HEALTHCARE: Faces Pines Nursing Home Class Action --------------------------------------------------------- Kindred Healthcare, Inc. said in its Form 8-K Report filed with the Securities and Exchange Commission on November 14, 2014, that a purported class action complaint was filed on January 6, 2014, in the United States federal district court for the Southern District of Florida, Miami Division, against the Company and one of its subsidiaries. The lawsuit, styled Pines Nursing Home, et al., v. Polaris and RehabCare Group, Inc., et al., alleges that one of the Company's subsidiaries sent "junk" faxes in violation of the Telephone Consumer Protection Act of 1991 and the Junk Fax Prevention Act of 2005. The complaint seeks damages, statutory fines and penalties, attorneys' fees and an injunction prohibiting such conduct in the future. The Company disputes the allegations in the complaint and will defend this lawsuit vigorously. MABVAX THERAPEUTICS: Reached Settlement in Merger Class Action -------------------------------------------------------------- MabVax Therapeutics Holdings, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that the Company and all other parties to the class action litigation entered into an agreement which, if consummated, will settle the litigation. The class action lawsuit was commenced on May 30, 2014, in Santa Clara County Superior Court, State of California, on behalf of Cadillac Partners and others similarly situated, naming as defendants, MabVax Therapeutics, the Company and the company's directors, Hudson Bay Capital Management LP, Bio IP Ventures LLC, Hudson Bay Master Fund Ltd., and Hudson Bay IP Opportunities Master Fund LP. The suit alleged the defendants breached certain fiduciary duties, or aided and abetted a breach of fiduciary duties, in connection with the Company's Merger with MabVax Therapeutics. In support of their purported claims, the plaintiff alleged, among other things, that the Company's board has historically failed to fulfill its fiduciary duty to its stockholders, and claiming with respect to the Series B Private Placement and the Merger, the such transactions involved an inadequate sales process and included preclusive deal protection devices, and that the Company's board of directors would receive personal benefits not available to its public stockholders as a result of the Merger. The plaintiff sought to enjoin the Merger and obtain damages as well as attorneys' and expert fees and costs. On June 29, 2014, the parties entered into a Stipulation and Settlement (the "Settlement"), pursuant to which the Company agreed to file with the SEC certain supplemental disclosures in connection with the Merger. The Settlement is subject to certain confirmatory discovery to be undertaken by the plaintiff and to the parties' agreement on the payment of the plaintiff's attorneys' fees and expenses. On July 16, 2014, the Company and all other parties to the litigation entered into an agreement which, if consummated, will settle the litigation (the "Proposed Settlement"). Among many other terms, under the Proposed Settlement the Company and all defendants will receive a broad release of any and all claims pertaining to the Series B Private Placement, the Merger, the prior disclosure and a wide variety of other matters. The Proposed Settlement also calls for the parties to ask the court to, among other things, enter orders enjoining other stockholders from bringing similar actions, certifying the putative settlement class, and approving the Proposed Settlement as a fair, final, and binding resolution of the litigation. Under the Proposed Settlement, the Company and the other defendants have expressly denied the allegations of the complaint and denied engaging in any other misconduct, nor will any of them make any payment or in any respect amend the negotiated terms of the since-consummated Series B Private Placement and Merger. Finally, under the Proposed Settlement, the Company and the other defendants have not agreed to pay any legal fees, or reimburse any expenses, allegedly incurred by the plaintiffs who filed the complaint; instead, the Company expects that counsel for those plaintiffs will present any such disputed claim for legal fees and expenses to the court for resolution. MANDALAY DIGITAL: Appeal in Class Action Now Under Review --------------------------------------------------------- Mandalay Digital Group, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that the appeal in a class action lawsuit is now under review and pending judgment. The Company said, "On May 30, 2013, a class action suit in the amount of NIS 19.2 million or $5.3 million was filed in the Tel- Aviv Jaffa District Court against Coral Tell Ltd. an Israeli company which owns and operates a website offering advertisements and Coral Tell Ltd is currently being sued in a class action lawsuit regarding phone call overages and has served a third party notice against Logia and two additional companies for our alleged involvement in facilitating the overages. The suit relates to a service offered by the Coral Tell website, enabling advertisers to display a virtual cellular number in the advertisement instead of their real cellular number. The plaintiff claims that calls were charged for the connection time between two segments of the call, instead of the second segment alone; that the caller was charged even if the advertiser did not answer the call (as the charge began upon initiation of the first segment); and that the caller was charged for text messages sent to the advertiser, although the service did not support delivery of text messages." "We have no contractual relationship with this company. We believe the lawsuit is without merits and a finding of liability on our part remote. After conferring with advisors and counsel, management believes that the ultimate liability, if any, in the aggregate will not be material to the financial position or results or operations of the Company for any future period; and no liability has been accrued. "On November 25, 2013, the Israeli Supreme Court ordered the parties to submit their position as to whether the defendant (applicant) has a right to appeal the Israeli District's Court decision or must request the Israeli Supreme Court to grant a right to appeal. "On December 25, 2013, after reviewing the parties' positions, the Israeli Supreme Court ordered the respondents (Cellcom, Logia, Ethrix) to submit their response to defendant's petition to grant the right to appeal, by January 26th, 2014. Appellant responded thereafter and the appeal is now under review and pending judgment. Usually, in petitions such as this the Israeli Supreme Court makes a judgment based on the parties' written responses. Such judgment may take between several weeks to several months." MCCABE WEISBERG: SDNY Court Narrows "Jones-Bartley" FDCPA Suit -------------------------------------------------------------- District Judge Kenneth M. Karas of the Southern District of New York granted in part and denied in part defendant's motion to dismiss the case, MUREEN JONES-BARTLEY, on behalf of herself and a class of similarly situated individuals, Plaintiff, v. McCABE, WEISBERG & CONWAY, P.C., Defendant., No. 13-CV-4829 (S.D.N.Y.). Defendant, on behalf of a third-party mortgage company, sent a letter to plaintiff regarding a residential mortgage debt that defendant has been attempting to collect from the plaintiff. Plaintiff filed a complaint and alleges that the letter fails to comply with the Fair Debt Collection Practices Act or FDCPA in four ways: -- the Complaint alleges that the letter violates 15 U.S.C. Section 1692g(a)(1) because the letter provides notice only of the total principal due as of the date of the notice, whereas the amount of the debt owed would include accrued but unpaid interest and other fees and charges, which generally amount to thousands of dollar; -- the Complaint alleges that the letter violates 15 U.S.C. Section 1692g(a)(2) because the letter completely fails to disclose who the current owner of the debt is; -- the Complaint alleges that the letter violates 15 U.S.C. Section 1692(e) because the letter does not specify that the debtor has 30 days after receipt of the letter to dispute the debt, but rather states that the recipient has 30 days to dispute the debt, making the most logical interpretation 30 days from the date of the letter; and -- the Complaint alleges that the letter violates 15 U.S.C. Section 1692g(a)(3) because the letter states that notification of a dispute within the 30-day period must state the nature of the dispute as to the amount due or any part thereof, despite the lack of a statutory requirement to do so. Plaintiff requested a promotion conference to discuss her anticipated motion for class certification, and motion to enter and continue her motion for class certification. Defendant submitted a two-part response to Plaintiff's letter. First, Defendant filed a document entitled "Offer of Judgment Pursuant to [Fed. R. Civ. P.] 68 and second defendant submitted a letter purporting to comply with the Court's order to respond to the substance of Plaintiff's pre-motion letter. Although defendant, in its letter, had previously agreed to plaintiff's request for a pre-motion conference, defendant opposed plaintiff's request. Specifically, defendant stated that it believed that plaintiff's proposed motion for class certification would not be necessary in light of the offer of judgment in an amount to compensate plaintiff for the maximum statutory damages and attorneys' fees and costs incurred to date. In defendant's view, the action is no longer justiciable because plaintiff's individual claim is moot as a result of the offer of judgment sufficient to make plaintiff, who admittedly suffered no actual damages and sought only to obtain statutory damages, whole. Defendant moves to dismiss Plaintiff's Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). With regard to the 12(b)(1) motion, defendant argues that the Court no longer has subject-matter jurisdiction over the complaint because the offer of judgment provides compensation to plaintiff for the maximum statutory damages, and therefore there is no longer a justiciable claim. In the alternative, defendant argues that, to the extent plaintiff's FDCPA claims are based on two of the four FDCPA violations alleged in the Complaint, the Court should dismiss the FDCPA claims pursuant to Rule 12(b)(6) because plaintiff has failed to state a claim upon which relief may be granted. Judge Karas denied defendant's motion to dismiss the complaint pursuant to Rule (12)(b)(1), and granted in part and denied in part defendant's motion to dismiss the complaint pursuant to Rule 12(b)(6). He said plaintiff may proceed in the case under the first, second and fourth theories of FDCPA liability identified in her complaint. A copy of Judge Karas's opinion and order dated November 6, 2014 is available at http://is.gd/qrUFibfrom Leagle.com. Counsel for Plaintiff: Abraham Kleinman, Esq. KLEINMAN LLC 626 RXR Plaza Uniondale, NY 11556-0626 Telephone: (516) 522-2621 Facsimile: (888) 522-1692 - and - Tiffany Nicole Hardy, Esq. EDELMAN, COMBS, LATTURNER & GOODWIN, LLC 20 South Clark Street, Suite 1500 Chicago, IL 60603 Telephone: 312-739-4200 Facsimile: 312-419-0379 Counsel for Defendant: Edmund Kean John, Esq. SWARTZ CAMPBELL LLC Two Liberty Place, 28th Flr. 50 S. 16th St. Philadelphia, PA 19102 Tel: 215-299-4319 MEDTRONIC INC: Removes "Lane" Suit to Tennessee District Court -------------------------------------------------------------- The lawsuit captioned Lane v. Medtronic, Inc., et al., Case No. CT-005310-14, was removed from the Circuit Court of Shelby County, Tennessee, for the Thirtieth Judicial District at Memphis to the United States District Court for the Western District of Tennessee. The District Court Clerk assigned Case No. 2:14-cv- 03001 to the proceeding. The Plaintiff alleges that she was injured by her physician's off- label use of Medtronic's Infuse Bone Graft/LT-CAGE Lumbar Tapered Fusion Device. Infuse is a Class III medical device whose design, manufacturing method, and labeling were specifically approved by the Food and Drug Administration pursuant to the agency's Premarket Approval process. The Plaintiff is represented by: Gregory J. Bubalo, Esq. Leslie M. Cronen, Esq. BUBALO GOODE SALES & BLISS PLC 9300 Shelbyville Road, Suite 215 Louisville, KY 40222 Telephone: (502) 753-1600 Facsimile: (502) 753-1601 E-mail: gbubalo@bubalolaw.com lcronen@bubalolaw.com - and - Laura Yaeger, Esq. MORGAN & MORGAN COMPLEX LITIGATION GROUP 201 N. Franklin Street, 7th Floor Tampa, FL 33602 Telephone: (813) 223-5505 Facsimile: (813) 222-4796 E-mail: LYaeger@forthepeople.com The Defendants are represented by: Leo M. Bearman, Esq. Robert F. Tom, Esq. BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC First Tennessee Building 165 Madison Avenue, Suite 2000 Memphis, TN 38103 Telephone: (901) 526-2000 Facsimile: (901) 577-0818 E-mail: lbearman@bakerdonelson.com rtom@bakerdonelson.com - and - Andrew E. Tauber, Esq. MAYER BROWN, LLP 1999 K Street, NW Washington, DC 20006 Telephone: (202) 263-3324 Facsimile: (202) 263-5324 E-mail: atauber@mayerbrown.com - and - Daniel L. Ring, Esq. MAYER BROWN, LLP 71 S. Wacker Drive Chicago, IL 60606 Telephone: (312) 701-8520 Facsimile: (312) 706-8675 E-mail: dring@mayerbrown.com - and - Sean P. Fahey, Esq. PEPPER HAMILTON, LLP 3000 Two Logan Square Eighteenth and Arch Streets Philadelphia, PA 19103-2799 Telephone: (215) 981-4000 Facsimile: (215) 981-4750 E-mail: faheys@pepperlaw.com MEDTRONIC INC: Removes "Miller" Suit to Tennessee District Court ---------------------------------------------------------------- The lawsuit captioned Miller v. Medtronic, Inc., et al., Case No. CT-005279-14, was removed from the Circuit Court of Shelby County, Tennessee, to the U.S. District Court for the Western District of Tennessee (Memphis). The District Court Clerk assigned Case No. 2:14-cv-02998 to the proceeding. The Plaintiff alleges that he was injured by his physician's off- label use of Medtronic's Infuse Bone Graft/LT-CAGE Lumbar Tapered Fusion Device. The Plaintiff is represented by: Gregory J. Bubalo, Esq. Leslie M. Cronen, Esq. BUBALO GOODE SALES & BLISS PLC 9300 Shelbyville Road, Suite 215 Louisville, KY 40222 Telephone: (502) 753-1600 Facsimile: (502) 753-1601 E-mail: gbubalo@bubalolaw.com lcronen@bubalolaw.com - and - Laura Yaeger, Esq. MORGAN & MORGAN COMPLEX LITIGATION GROUP 201 N. Franklin Street, 7th Floor Tampa, FL 33602 Telephone: (813) 223-5505 Facsimile: (813) 222-4796 E-mail: LYaeger@forthepeople.com The Defendants are represented by: Leo M. Bearman, Esq. Robert F. Tom, Esq. BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC First Tennessee Building 165 Madison Avenue, Suite 2000 Memphis, TN 38103 Telephone: (901) 526-2000 Facsimile: (901) 577-0818 E-mail: lbearman@bakerdonelson.com rtom@bakerdonelson.com - and - Andrew E. Tauber, Esq. MAYER BROWN, LLP 1999 K Street, NW Washington, DC 20006 Telephone: (202) 263-3324 Facsimile: (202) 263-5324 E-mail: atauber@mayerbrown.com - and - Daniel L. Ring, Esq. MAYER BROWN, LLP 71 S. Wacker Drive Chicago, IL 60606 Telephone: (312) 701-8520 Facsimile: (312) 706-8675 E-mail: dring@mayerbrown.com - and - Sean P. Fahey, Esq. PEPPER HAMILTON, LLP 3000 Two Logan Square Eighteenth and Arch Streets Philadelphia, PA 19103-2799 Telephone: (215) 981-4000 Facsimile: (215) 981-4750 E-mail: faheys@pepperlaw.com MEKKA MIAMI: Removes "Abarca" Suit to Florida District Court ------------------------------------------------------------ The class action lawsuit entitled Abarca v. Mekka Miami Group Corp., et al., Case No. 14-28612-CA-01, was removed from the 11th Judicial Circuit Court in Miami Dade, Florida, to the U.S. District Court for the Southern District of Florida (Miami). The District Court Clerk assigned Case No. 1:14-cv-24766-MGC to the proceeding. The complaint seeks damages pursuant to the Fair Labor Standards Act. The Plaintiff is represented by: Brody Max Shulman, Esq. Jason Saul Remer, Esq. REMER & GEORGES-PIERRE, PLLC Courthouse Tower, Suite 2200 44 West Flagler Street Miami, FL 33130 Telephone: (305) 416-5000 Facsimile: (305) 416-5005 E-mail: bshulman@rgpattorneys.com jremer@rgpattorneys.com The Defendants are represented by: Julie Wynne Allison, Esq. JULIE W. ALLISON PA 1814 NE Miami Gardens Drive, Suite 801 Miami, FL 33179 Telephone: (305) 792-2554 E-mail: julie@allisonlaw.net NATIONAL WATER: NJ Court Approves $250,000 Deal in "Mulroy" Suit ---------------------------------------------------------------- Plaintiff John Mulroy filed a lawsuit in May 2012 in the Superior Court of New Jersey, Law Division, Essex County, asserting claims under the New Jersey Wage and Hour Law, N.J.S.A. 34:11-56a, et seq. and the New Jersey Prevailing Wage Act, N.J.S.A. 34:11-56.25, et seq. on behalf of himself and a putative class. Specifically, the Plaintiff claimed that his former employer, Defendant -- National Water Main Cleaning Company of New Jersey -- had failed to pay its employees for travel time to various jobsites and that the Company paid an incorrect prevailing wage rate to its employees in New Jersey. The Defendant removed the case to the United States District Court for the District of New Jersey in June 2012. In March 2014, the parties entered into a Class Action Settlement, which provides for a maximum gross payment of $250,000, deposited into a segregated account for the benefit of the Class, in exchange for the release of all claims. The parties filed a motion for final approval of the class action settlement. The parties seek approval of: (1) the Class Action Settlement; (2) an attorneys' fee award in the amount of $100,000; and (3) an incentive award for the named Plaintiff in the amount of $10,000. A Fairness Hearing was held on October 23, 2014. Only one objection was received. In an opinion dated Dec. 12, 2014, Magistrate Judge Mark Falk of the U.S. District Court for the District of New Jersey approves the Settlement and grants Plaintiff's fee requests. The case is JOHN MULROY, on behalf of himself and all others similarly situated, Plaintiff, v. NATIONAL WATER MAIN CLEANING COMPANY OF NEW JERSEY, Defendant, CIVIL ACTION NO. 12-3669 (WJM) (MF)(D.N.J.). A full-text copy of Magistrate Falk's Decision is available at http://is.gd/4xaGmVfrom Leagle.com. JOHN MULROY, On behalf of himself and all others similarly situated, Plaintiff, represented by RAVI SATTIRAJU, THE SATTIRAJU LAW FIRM, P.C.. NATIONAL WATER MAIN CLEANING COMPANY OF NEW JERSEY, Defendant, represented by CHRISTOPHER H. LOWE, SEYFARTH SHAW, LLP. MICHAEL HAINES: Tenn. App. Affirms Ruling in "Haiser" Suit ---------------------------------------------------------- A group of property owners sued another group of property owners in the Chancery Court for Cumberland County. Both groups contested which was the legitimate Board of Directors for the community association. The Plaintiffs sought, among other things, declaratory relief as to the rights and responsibilities of the parties. The Plaintiffs filed a motion for class action certification. The Trial Court, finding that the Plaintiffs had failed to establish the requirements of typicality and adequacy of representation, denied the Plaintiffs' request for class certification. The Plaintiffs appeal the denial of class certification. Finding no abuse of discretion, the Court of Appeals of Tennessee, Knoxville, affirmed the Trial Court in an opinion dated Dec. 12, 2014. The appeals case is GARY HAISER, ET AL. v. MICHAEL HAINES, ET AL., NO. E2013-02350-COA-R3-CV (Tenn. App.). A full-text copy of the Decision is available at http://is.gd/CnFDpOfrom Leagle.com. Melanie E. Davis, Maryville, Tennessee, for the appellants, Gary Haiser, Joel Matchak, John Moore, Gerald Nugent, and Renegade Mountain Community Club, Inc. Gregory C. Logue and Lindy D. Harris, Knoxville, Tennessee, for the appellees, Michael McClung, Phillip Guettler, and Moy Toy, LLC. NY COMMUNITY BANCORP: E.D.N.Y. Judge Narrows "Garnet-Bishop" Suit ----------------------------------------------------------------- District Judge Arthur D. Spatt of the Eastern District of New York granted, in part, and denied, in part, defendants' partial motion to dismiss and denied defendants' motion to strike in the consolidated case entitled, NATALIE GARNET-BISHOP, et al., Plaintiffs, v. NEW YORK COMMUNITY BANCORP, INC., et al., Defendants, No. 12-CV-2285 (ADS)(ARL) (E.D.N.Y.) To evaluate its employees' job performance, New York Community Bank (NYCB) branch management allegedly used transactional surveys, which counted the number of transactions that each employee consummated while working at an NYCB branch, as well as performance ratings. These evaluations, together with an employee's disciplinary history, were used by the NYCB's human resources department to make personnel decisions. NYCB terminated more than 400 employees including plaintiffs' in this case. Following the termination, the Plaintiffs were told by NYCB management that their terminations were a result of poor past performance reviews. Thirty-one former NYCB employees, whose employment was terminated, filed a consolidated complaint. The consolidated complaint alleges, among other matters, that their terminations were the result of employment discrimination based on age, race, national origin, gender and/or disability and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e, et seq. ("Title VII"); the Age Discrimination in Employment Act, 29 U.S.C. Section 621, et seq.(the "ADEA"); and the American With Disabilities Act, 42 U.S.C. Section 12101, et seq. (the "ADA"). The Plaintiffs also assert a claim pursuant to the Worker Adjustment and Retraining Notification Act, 42 USC Section 2101, et seq. (the "WARN Act") and its New York state equivalent, New York Labor Law Section 860, et seq. (the "state WARN Act"). The Plaintiffs further assert state law causes of action against the Defendants for violation of the New York State Human Rights Law, N.Y. Exec. Law Section 296 (the "NYSHRL"), intentional infliction of emotional distress, and negligent infliction of emotional distress. Defendants moved to dismiss certain of the Plaintiffs' claims pursuant to Fed. R. Civ. P. 12(b)(5) and (6), including: (1) claims against the Individual Defendants; (2) the Title VII retaliation claims against the Corporate Defendants; (3) the intentional infliction of emotional distress and negligent infliction of emotional distress claims against the Corporate Defendants; (4) the Plaintiffs' NYSHRL claims against the Corporate Defendants; and (5) various federal and state law claims by some of the individual Plaintiffs against the Corporate Defendants. Defendants also moved to strike certain documents, which were appended to the plaintiffs' opposition brief. Judge Spatt granted in part and denied in part the defendants' partial motion to dismiss and denied defendants motion to strike certain documents. A copy of Judge Spatt's Memorandum and Order dated November 6, 2014 is available at http://is.gd/6LKIzHfrom Leagle.com Plaintiffs Natalie Garnett-Bishop, Kathleen Warshun and Lynette Tiger are represented by: Ann Willoughby, Esq. 245 Hillside Ave. Willston Park, NY 11596 Telephone: 516-739-0177 Plaintiffs Donana Cappello, Donna Berchiolli, Shannon Byrnes, Theresa Falco, Leslie Morency, Marie Alexander, Katia Page, Celeste McCormack, Audrey Zuckerman, Candice Petrancosta, and Addolorate Quiles are represented by: Patrick W. Johnson, Esq. PATRICK W. JOHNSON, P.C. 9118 3rd Ave. Brooklyn, NY 11209 Telephone: 718-748-5530 Plaintiffs Dee Cooper Jones, Claire Byrnes, Ilene Branfman, Geraldine Collins, Helen Arniotes, Gina Decrescenzo, Samantha Zielinski, and Diann Titus are represented by: Andrew G. Sfouggatakis, Esq. Theodore Pavlounis, Esq. THEODORE PAVLOUNIS, ESQ., P.C. 172 Gravesend Neck Road Brooklyn, NY, 11223 Telephone: (718) 787-1430 Defendants represented by: Amy Ventry-Kagan Esq. Robert M. Wolff, Esq. James P. Smith, Esq. LITTLER MENDELSON, P.C. Oswald Centre 1100 Superior Avenue East-20th Floor Cleveland, OH 44114 Telephone: (216) 696-7600 Facsimile: (216) 696-2038 Email: aventry@littler.com rwolff@littler.com jpsmith@littler.com NYC HOUSING AUTHORITY: Settlement in "Shepard" Suit Has Final OK ---------------------------------------------------------------- Magistrate Judge Ronald L. Ellis of the Southern District of New York granted plaintiffs' request for final approval of the class action settlement in the case JONELLE SHEPARD, YVETTE (GARCIA) VELEZ, AND SHAREMAH LAMOTTE, on behalf of themselves and all others similarly situated, Plaintiffs, v. JOHN B. RHEA, et al., Defendants, Case No. 12-CV-7220 (RLE) (S.D.N.Y.) Plaintiffs Jonelle Shepard, Yvette Garcia Velez, and Sharemah Lamotte are participants in the New York City Housing Authority ("NYCHA") Section 8 Housing Choice Voucher Program; they instituted this action as a putative class action under Federal Rule of Civil Procedure 23, on behalf of themselves and as representatives of all participants in the Program who have requested a Section 8 transfer voucher to be issued on an emergency basis and have not yet received NYCHA's approval to move into a new apartment. Plaintiffs claimed that NYCHA's failure to timely process Section 8 Housing Choice Voucher Program Participants' requests to transfer apartments violated the Due Process Clause of the Fourteenth Amendment of the United States Constitution, the United States Housing Act of 1937 and its implementing regulations, and NYCHA's own policies, and sought injunctive and declaratory relief. After exchanging document discovery and engaging in extensive negotiations, including negotiations mediated by the Court, the Parties reached a settlement. On January 31, 2014, the Court entered an Order preliminarily certifying the settlement class, preliminarily appointing the Legal Aid Society and Latham and Watkins, LLP as class counsel, scheduling a fairness hearing for March 20, 2014, and authorizing notice of hearing to be provided to members of the plaintiff class. The Court held a fairness hearing on April 21, 2014. Defendants did not appear at the fairness hearing. On April 12, 2014, Defendants informed the Court that they had failed to appear as a result of a calendaring error, and in any event, "agreer[d] with plaintiffs' counsel that the settlement is reasonable and fair to all members of the class." There were no objections at the fairness hearing. Plaintiff requested the court for final approval of the class action settlement. In granting final approval to the Settlement, the Court certified the following class under Federal Rule of Civil Procedure 23(a) and (b)(3) for settlement purposes: "(1) all participants in the Program ("Tenants") who request or have requested emergency transfers due to either an un-remedied life-threatening or designated hazardous housing quality standard ("HQS") violation or a holdover proceeding in Housing Court based on a landlord's choice not to renew a lease." The "Effective Date" of the settlement shall be five business days after the date of the Order if no party appeals the Order. If a party appeals the Order, the "Effective Date" of the settlement shall be the day after all appeals are finally resolved. The terms of the settlement include new policies and procedures with respect to emergency transfer requests to 1) un-remedied life-threatening hazardous HQS violations, or 2) holdover proceedings in Housing Court based on a landlord's choice not to renew a lease. The terms also provide for a monitoring by an independent auditor. A copy of Magistrate Judge Ellis's Opinion and Order dated November 7, 2014 is available at http://is.gd/1KZPwUfrom Leagle.com. Jonelle Shepard, Yvette (Garcia) Velez, Shareman Lamotte, Plaintiffs, represented by: Adriene L. Holder, Esq. Ellen Beth Davidson, Esq. Judith A. Goldiner, Esq. Sebastian Daniel Riccardi, Esq. THE LEGAL AID SOCIETY 199 Water Street New York, NY 10038 Telephone: 212-577-3300 Facsimile: 212-509-8761 - and - Christopher R. Harris, Esq. Gina Rose Gencarelli, Esq. Kathleen Moria Brennan, Esq. Paul Anthony Serritella, Esq. LATHAM & WATKINS LLP 885 Third Avenue New York, NY 10022-4834 Telephone: 1-212-906-1200 Facsimile: 1-212-751-486 Email: christopher.harris@lw.com Paul.serritella@lw.com John B. Rhea, and The New York City Housing Authority, Defendants, represented by: Steven Jay Rappaport Donna Marie Murphy New York City Housing Authority 250 Broadway New York NY 10007 Tel: 212-306-3000 ONE ON ONE MARKETING: Faces Suit in S.C. for Violating TCPA ----------------------------------------------------------- Mark Fitzhenry, individually and on behalf of all others similarly situated v. One on One Marketing LLC d/b/a Degree Search, Virginia College LLC and Education Corporation of America, Case No. 2:14- cv-04782-DCN (D.S.C., December 18, 2014) alleges violation of the Telephone Consumer Protection Act. The Plaintiff is represented by: Lance Shealy Boozer, Esq. BOOZER LAW FIRM 1331 Park Street Columbia, SC 29201 Telephone: (803) 608-5543 E-mail: lsb@boozerlawfirm.com OVERLAND STORAGE: Entered Into MOU to Settle Consolidated Action ---------------------------------------------------------------- Overland Storage, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that the plaintiffs and the Company Defendants entered into a memorandum of understanding (the "Memorandum of Understanding") to settle the Consolidated Action and Merger Actions. In May 2014, the Company announced that it had signed an agreement and plan of merger by and among the Company and Sphere 3D. Since the merger was announced, four separate putative shareholder class action lawsuits were filed against the Company, all of its directors, and Sphere 3D in the California Superior Court in and for the County of San Diego. Three of the lawsuits also named Cyrus Capital Partners, the majority shareholder of the Company, as a defendant. On June 25, 2014, the Superior Court entered an order providing for the consolidation of all cases relating to the Company's decision to enter into the merger agreement with Sphere 3D. These cases have been consolidated before a single judge and are referred to as In re Overland Storage Inc., Shareholders Litigation, Lead Case No. 37-2014-00016017-CU-SL-CTL. On July 30, 2014, the plaintiffs filed their consolidated amended complaint. The lawsuit alleges breaches of fiduciary duties and conflicts of interest against the Company's directors relating to the merger process, the terms of the merger agreement, and the consideration to be received by Company shareholders under the terms of the merger agreement. The lawsuit alleges that the other defendants aided and abetted the purported breaches of fiduciary duties by the Company's directors. The relief sought includes an injunction prohibiting the consummation of the proposed merger, rescission of the merger to the extent already implemented or rescissory damages, damages, and an award of attorneys' fees and costs. On October 13, 2014, the plaintiffs and the Company Defendants entered into a memorandum of understanding (the "Memorandum of Understanding") to settle the Consolidated Action and Merger Actions. The Memorandum of Understanding provides, among other things, that additional disclosures would be made concerning the analysis performed by the Company's financial advisor relating to the proposed merger, the Company's management projections, and the circumstances leading up to the proposed merger. While the Company believes that the lawsuits are without merit, and the Company specifically denies the allegations made in the lawsuits and maintains that it and the other defendants committed no wrongdoing whatsoever, to permit the timely consummation of the proposed merger, and without admitting the validity of any allegations made in the lawsuits, the Company concluded that it is desirable that the Consolidated Action and Merger Actions be resolved. The proposed settlement of the Consolidated Action and Merger Actions, which is subject to confirmatory discovery and court approval, provides for the release of all claims against the defendants relating to the proposed merger and the allegations in the Consolidated Action and Merger Actions. There can be no assurance that the settlement will be finalized or that the Superior Court will approve the settlement. P.F. CHANG'S: Court Dismisses Two Suits Over Security Breach ------------------------------------------------------------ Attempts by hackers to use credit card information stolen from P.F. Chang's does not demonstrate actual financial injury, reports Jack Bouboushian at Courthouse News Service, citing a federal court ruling. Two class actions filed earlier this year had claimed that lax security at P.F. Chang's China Bistro allowed hackers to steal the credit and debit card numbers of up to 7 million customers. Since the restaurant allegedly waited nine months to tell customers about the security breach, the class said they failed to take timely measures to protect their financial information, enabling hackers to make unauthorized purchases on their credit cards. U.S. District Judge John Darrah dismissed the complaints in the second week of December, however, based on the failure to connect the security breach to actual injury. "Plaintiffs claim they overpaid for the products and services purchased from defendant," Darrah wrote. "Plaintiffs argue that the cost of the food they purchased implicitly contained the cost of sufficient protection of PII [personal identity information]. As this court has held before, this argument is unpersuasive." Indeed, lead plaintiff John Lewert did not show that the credit card he used at P.F. Chang's incurred any fraudulent charges. Though four unauthorized charges totaling $61.89 were attempted using his card number, Lewert's bank, Chase, declined the charges and notified Lewert of the fraudulent activity, the court found. Lewert's fellow lead plaintiff, Lucas Kosner, similarly did not have any money taken out of his account after the theft of his debit card number, and did not pay any fees resulting from the attempted fraud, according to the ruling. "In order to have suffered an actual injury, plaintiffs must have had an unreimbursed charge on their credit or debit cards," Darrah said. "Plaintiffs do not allege any successful charges, let alone reimbursed charges." Kosner claimed that the breach deprived him of the ability to use his affected debit card for two to three days, but Darrah said that neither the status of "simply being without a debit card," nor the inability to accrue rewards points on the card, qualifies as an injury. While the theft of financial information from P.F. Chang's may expose customers to identity theft in the future, they cannot sue for a speculative future injury, according to the ruling. The cases are John Lewert v. P.F. Chang's China Bistro, Inc., Case No. 14-cv-4787, and Lucas Kosner v. P.F. Chang's China Bistro, Inc., Case No. 14-cv-4923, both in the U.S. District Court for the Northern District of Illinois, Eastern Division. PENNSYLVANIA: Doctor's Bid to Dismiss "Sanchez" Suit Granted ------------------------------------------------------------ Plaintiff Jose Sanchez, is an inmate who is currently confined in the custody of the Pennsylvania Department of Corrections in the State Correctional Institution at Fayette. The Plaintiff initiated a lawsuit on July 11, 2013, by the filing of a Motion for Leave to Proceed in forma pauperis, with an attached civil rights complaint. By Order entered July 12, 2013, the case was dismissed without prejudice as the Plaintiff had failed to provide the necessary financial paperwork required under 28 U.S.C. Section 1915(a)(2). The Plaintiff thereafter resubmitted a Motion for Leave to Proceed in forma pauperis attaching the required financial paperwork, and a new complaint. The motion was granted, the case was reopened on August 15, 2013, and the Complaint filed. Defendant Dr. Herbik filed a Motion to Dismiss For Failure to State A Claim, with brief in support, while defendants Susan Berrier, Brian V. Coleman, Pamela Filchek, Tom Hivanic, Rhonda House, K. Randolph, and Dorina Varner -- the "Commonwealth Defendants" -- filed a Motion To Dismiss For Failure to State a Claim, with brief in support. In a memorandum opinion and order dated Dec. 11, 2014, Magistrate Judge Cynthia Reed Eddy of the U.S. District Court for the Western District of Pennsylvania granted the Motion filed by Defendant Herbik, holding that the allegations in the Amended Complaint clearly demonstrate that the Plaintiff received medical treatment for his health needs, although he disagrees with the course of treatment. Magistrate Eddy granted the Commonwealth Defendants' Motion to the extent that the Plaintiff's claims of deliberate indifference to his medical needs will be dismissed. The case is JOSE SANCHEZ, Plaintiff, v. BRIAN V. COLEMAN, et al., Defendants, CIVIL ACTION NO. 2: 13-CV-0982 (W.D. Pa.). A full- text copy of Magistrate Eddy's Decision is available at http://is.gd/BMxZmOfrom Leagle.com. JOSE SANCHEZ, Plaintiff, Pro Se. BRIAN V. COLEMAN, Defendant, represented by Robert A. Willig, Office of Attorney General. K. RANDOLPH, Defendant, represented by Robert A. Willig, Office of Attorney General. RHONDA HOUSE, Defendant, represented by Robert A. Willig, Office of Attorney General. DOCINA VARNER, Defendant, represented by Robert A. Willig, Office of Attorney General. PLASMATECH BIOPHARMA: 3rd Circuit Remands Case to District Court ---------------------------------------------------------------- Plasmatech Biopharmaceuticals, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that the Third Circuit court remanded the class action by a former shareholder of Genaera Corporation to the District Court for further proceedings. Alan Schmidt, a former shareholder of Genaera Corporation ("Genaera"), and a former unitholder of the Genaera Liquidating Trust (the "Trust"), filed a purported class action in the United States District Court for the Eastern District of Pennsylvania in June 2012. The Company said, "The lawsuit named thirty defendants, including PlasmaTech, MacroChem Corporation, which was acquired by us in February 2009, Jeffrey Davis, our former CEO and a director of PlasmaTech, and Steven H. Rouhandeh and Mark Alvino, both of whom are our directors (the "PlasmaTech Defendants"). With respect to the PlasmaTech Defendants, the complaint alleged direct and derivative claims asserting that directors of Genaera and the Trustee of the Trust breached their fiduciary duties to Genaera, Genaera's shareholders and the Trust's unitholders in connection with the licensing and disposition of certain assets, aided and abetted by numerous defendants including the PlasmaTech Defendants. Schmidt seeks money damages, disgorgement of any distributions received from the Trust, rescission of sales made by the Trust, attorneys' and expert fees, and costs." "On December 19, 2012, Schmidt filed an amended complaint which asserted substantially the same allegations with respect to the PlasmaTech Defendants. On February 4, 2013, the PlasmaTech Defendants moved to dismiss all claims asserted against them. On August 12, 2013 the court granted PlasmaTech Defendants' motions to dismiss and entered judgment in favor of PlasmaTech Defendants on all claims. On August 26, 2013, Schmidt filed a motion for reconsideration. On September 10, 2013 Schmidt filed a Notice of Appeal with the District Court. On September 17, 2013, Schmidt filed his appeal with the U.S. Third Circuit Court of Appeals. On September 25, 2013, the District Court denied Schmidt's motion for reconsideration. On October 17, 2013, Schmidt amended his appeal to include the District court's denial of his motion for reconsideration. On March 20, 2014, Schmidt filed his Brief and Joint Appendix. On May 22, 2014, the PlasmaTech Defendants filed their Oppositions to Schmidt's Brief. On May 29, 2014, Schmidt was granted an extension of time until June 23, 2014 to file his Reply brief, and filed his Reply brief on that date. The Third Circuit held oral argument on September 12, 2014. On October 17, 2014, in a split decision, the Third Circuit reversed the District Court's decision holding, among other things, that the District Court's determination that the Amended Complaint was time-barred on statute of limitations grounds was premature. The Third Circuit did not rule upon any of the other grounds for dismissal advanced in the District Court and on appeal. The Third Circuit remanded the case to the District Court for further proceedings. "We intend to continue contesting the claims," the Company said. PLASTIC2OIL INC: Further Briefing Okayed to Support Settlement -------------------------------------------------------------- Plastic2Oil, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that a court has permitted further briefing to be submitted in support of the motion to approve a settlement of a class action lawsuit. On July 28, 2011, certain of the Company's stockholders filed a class action lawsuit against the Company and John Bordynuik, former Chief Executive Officer of the Company and a former member of the Company's Board of Directors, and Ronald C. Baldwin, former Chief Financial Officer of the Company on behalf of purchasers of its securities. In an amended complaint filed on July 10, 2012, these stockholders sought to represent such purchasers during the period from August 28, 2009 through January 4, 2012. The original and amended complaints in that case, filed in federal court in Nevada, allege that the defendants made false or misleading statements, or both, and failed to disclose material adverse facts about the Company's business, operations and prospects in press releases and filings made with the SEC. Specifically, the lawsuit alleges that the defendants made false or misleading statements or failed to disclose material information, or a combination thereof regarding: (1) that certain media credits ("Media Credits") were substantially overvalued; (2) that the Company improperly accounted for acquisitions; (3) that, as such, the Company's financial results were not prepared in accordance with Generally Accepted Accounting Principles; and (4) that the Company lacked adequate internal and financial controls . During the quarter ended June 30, 2012, a lead plaintiff was appointed in the case and an amended complaint was filed. The defendants' answer to the amended complaint was filed during the fourth quarter of 2012. On August 8, 2013, JBI, Inc., entered a stipulation agreement (the "Stipulation Agreement") in potential settlement of the class action lawsuit. Under the Stipulation Agreement, the Company would agree to issue shares of its common stock that will comprise a settlement fund. The number of shares to be issued will be dependent on the price per share of the Company's common stock during a period preceding the date of the Court's entry of final judgment in the case (the "Judgment Date"). If the price of the Company's common stock is less than $0.50 per share based upon the average closing price for the 90 trading days preceding the Judgment Date, the Company would issue 3 million shares of its common stock. If the price of the Company's common stock is between $0.50 and $0.70 per share, based upon the same 90-day average closing price, the Company would issue 2.5 million shares of its common stock. If the price of the Company's common stock is more than $0.70 per share based upon the same 90-day average closing price the Company will issue 1.75 million shares of its common stock. The shares will not be distributed to class members in kind. At any time after final approval by the Court, class counsel would have the option to sell all or any portion of such shares for the benefit of class members, subject to certain volume limitations. Plaintiff's counsel's attorneys' fees, subject to Court approval, would be paid out of the settlement fund. The Company would also pay settlement-related costs up to a maximum of $200,000. The plaintiffs and each of the class members who purchased the Company's common stock during the Proposed Class Period and alleged they were damaged would be deemed to have fully released all claims against the Company and other defendants upon entry of judgment. On September 10, 2013, that agreement was submitted to the Court, and class counsel moved for entry of an order granting preliminary approval of the settlement, including the mailing of a settlement notice that will include, among other things, the general terms of the settlement, proposed plan of allocation, and terms of plaintiff's counsel's fee application. On April 1, 2014, the Court issued an Order denying that motion. Additional briefing was submitted to the Court in support of the motion and, on August 14, 2014, the Court issued a second Order denying the motion. However, the Court has permitted further briefing to be submitted in support of the motion, and that additional briefing has been submitted. It is anticipated that the Court will once again reconsider its Order. The Company cannot predict the outcome of the class action litigation at this time. QC HOLDINGS: North Carolina Supreme Court Refused to Hear Appeal ---------------------------------------------------------------- QC Holdings, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that the Supreme Court of North Carolina refused to hear an appeal in a class action lawsuit. On February 8, 2005, the Company, two of its subsidiaries, including its subsidiary doing business in North Carolina, and Mr. Don Early, the Company's Chairman of the Board, were sued in Superior Court of New Hanover County, North Carolina in a putative class action lawsuit filed by James B. Torrence, Sr. and Ben Hubert Cline, who were customers of a Delaware state-chartered bank for whom the Company provided certain services in connection with the bank's origination of payday loans in North Carolina, prior to the closing of the Company's North Carolina branches in fourth quarter 2005. In July 2011, the parties completed a weeklong hearing on the Company's motion to enforce its class action waiver provision and its arbitration provision. In January 2012, the trial court denied the Company's motion to enforce its class action and arbitration provisions. The Company appealed that ruling to the North Carolina Court of Appeals. On February 4, 2014, the Court of Appeals ruled that the trial court erred, and ordered the trial court to dismiss the lawsuit and that the parties proceed to arbitration. On June 17, 2014, the Supreme Court of North Carolina refused to hear an appeal of this ruling. The Company and the two plaintiffs have since settled the two individual arbitration proceedings (including any right to seek class arbitration) for an immaterial amount and all proceedings have now been dismissed. QC HOLDINGS: Settlement of British Columbia Case to be Finalized ---------------------------------------------------------------- QC Holdings, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that it is expected that the settlement of a class action lawsuit in British Columbia will be finalized by the end of 2014, with execution of its requirements to continue into 2015. The Company's Direct Credit subsidiary is a defendant in a class action lawsuit filed on October 2011 in the Supreme Court of British Columbia. On March 19, 2014, the Supreme Court of British Columbia entered a judgment regarding certain procedural matters relating to the class action, including (i) a formal rule certifying the class (which Direct Credit had not opposed), (ii) setting a 10-year statute of limitation period for the covered claims from the date the complaint was filed on October 18, 2011, (iii) setting end dates for the class period, which varies from province and territory, (iv) providing that all class members that entered into loan agreements on or after June 20, 2009 will be class members unless they opt out of the class, (v) proving that all other class members must opt into the class within three months after the notice of class certification is issued, and (vi) certain related matters. The parties have executed a written settlement of this matter, subject to an audit verification of proposed settlement amounts and receipt of required court approval of the settlement terms. Our share of the settlement amount and ancillary expenses, net of indemnification from the prior owners of Direct Credit, is $500,000 (Canadian). In June 2014, the Company's share of the settlement and the indemnification amount due from the prior owners of Direct Credit were funded into a settlement trust held by an independent third party trustee. It is expected that the settlement will be finalized by the end of 2014, with execution of its requirements to continue into 2015. QC HOLDINGS: Trial in Calif. Case Scheduled for Early 2016 ---------------------------------------------------------- QC Holdings, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that a class action lawsuit in California is now in the discovery phase with a trial tentatively scheduled for early 2016. On August 13, 2012, the Company was sued in the United States District Court for the South District of California in a putative class action lawsuit filed by Paul Stemple. Mr. Stemple alleges that the Company used an automatic telephone dialing system with an "artificial or prerecorded voice" in violation of the Telephone Consumer Protection Act, 47 U.S.C. 227, et seq. The complaint does not identify any other members of the proposed class, nor how many members may be in the proposed class. On September 5, 2014, the district court granted Plaintiff's Motion for Class Certification. The certified class consists of persons and/or entities who were never customers of the Company, but whose 10-digit California area code cell phone numbers were listed by the Company's customers in the "Employment" and/or "Contacts" fields of their loan applications, and who the Company allegedly called using an Automatic Telephone Dialing System for the purpose of collecting or attempting to collect an alleged debt from the account holder, between August 13, 2008 and August 13, 2012. The case is now in the discovery phase with a trial tentatively scheduled for early 2016. RALPHS GROCERY: Appeals Court Flips Ruling on Arbitration Bid ------------------------------------------------------------- Justice Nora M. Manella of the Court of Appeals of California, for the Second District, Division Four, reversed a lower court decision that denied Ralphs Grocery Company's petition to compel arbitration in a class action lawsuit. The appellate case is, STEPHANIE RABB MAHMUD, Plaintiff and Respondent, v. RALPH GROCERY COMPANY, Defendant and Appellant, No. B237636 (Cal. App.) Plaintiff-Respondent Mahmud brought a suit alleging that Ralphs violated provisions of the State Labor Code. She sought certification of multiple classes of similarly situated Ralphs' employees, including a meal period class, a rest period class, and a final wages class. Ralphs petitioned to compel arbitration of the dispute and presented evidence that Mahmud had signed an application for employment which contains a dispute resolution program that included a Mediation & Binding Arbitration Policy. Mahmud opposed the petition citing the case, Gentry v. Superior Court (2007) 42 Cal.4th 443. She contended that the arbitration agreement was unenforceable under Gentry case, in which the California Supreme Court had held that where "the prohibition of class wide relief would undermine the vindication of the employees' unwaivable statutory rights and would pose a serious obstacle to the enforcement of the state's overtime laws," and where the trial court determines that class wide adjudication "would be a significantly more effective way of vindicating the rights of affected employees than individual arbitration," the class action waiver should not be enforced. Relying on Gentry, the trial court found the class action waiver unenforceable because there was no practical way to vindicate the potential claimants' statutory rights outside of class litigation, due to the large number of claimants with relatively small claims. Ralphs appealed. The appellate court affirmed the order denying Ralphs' petition and remanded the case back to the lower court. After remand, Ralphs filed a renewed petition to compel arbitration, contending that the United States Supreme Court's opinion in the case, AT&T Mobility LLC v. Concepcion (2011) 563 U.S. ___ [131 S.Ct. 1740], effectively overruled Gentry. The trial court denied the renewed motion. Ralphs took another appeal. The appellate court now holds that the order denying Ralphs' petition to compel arbitration must be reversed; the matter is remanded to the lower court for entry of an order granting the petition. A copy of Justice Manella's opinion dated November 10, 2014, is available at http://is.gd/24aWBxfrom Leagle.com. Ralphs is represented by Linda S. Husar, Esq. -- lhusar@reedsmith.com -- and Steven B. Katz, Esq. -- skatz@reedsmith.com -- at Reed Smith. The Plaintiff is represented by Gregory N. Karasik, Esq. -- greg@karasiklawfinrm.com -- at Karasik Law Firm. The appeals court panel consists of Presiding Justice Norman L. Epstein, Justices Nora M. Manella and Thomas L. Wilhite, Jr. RCS CAPITAL: Final Approval Hearing Set for January 9 ----------------------------------------------------- RCS Capital Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that a final approval hearing is set for January 9, 2015 to approve the settlement in the class action over the acquisition of Summit Financial Services Group, Inc. Summit, its board of directors, the Company and a wholly owned subsidiary formed by the Company in connection with the Summit acquisition are named as defendants in two purported class action lawsuits (now consolidated and amended) filed by alleged Summit shareholders on November 27, 2013 and December 12, 2013 in Palm Beach County, Florida challenging the Summit acquisition. The Company said, "These lawsuits alleged, among other things, that: (i) each member of Summit's board of directors breached his fiduciary duties to Summit and its shareholders in authorizing the Summit acquisition; (ii) the Summit acquisition did not maximize value to Summit shareholders; and (iii) we and our acquisition subsidiary aided and abetted the breaches of fiduciary duty allegedly committed by the members of Summit's board of directors." "On May 9, 2014, the plaintiff shareholders moved for leave to file an amended complaint under seal. The amended complaint asserted claims similar to those in the original complaint, added allegations relating to the amendment of the Summit merger agreement on March 17, 2014, and also challenged the adequacy of the disclosures in the registration statement related to the issuance of shares of our Class A common stock as consideration in the Summit acquisition, the background of the transaction, the fairness opinion issued to the Summit special committee, and Summit's financial projections. The consolidated lawsuits sought class-action certification, equitable relief, including an injunction against consummation of the Summit acquisition on the agreed-upon terms, and damages. "On May 27, 2014, the parties to the consolidated action entered into a Memorandum of Understanding setting forth their agreement in principle to settle the consolidated action and, on September 15, 2014, the parties signed a stipulation of settlement and the Company recorded a provision. The same day, plaintiffs filed a motion seeking preliminary approval of the settlement and, on October 6, 2014, the Court entered the preliminary approval order. A final approval hearing is set for January 9, 2015." RCS CAPITAL: Lead Plaintiffs File Direct Class Action Complaint --------------------------------------------------------------- RCS Capital Corporation said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that the lead plaintiffs in the Maryland state court action filed a "Consolidated Amended Derivative and Direct Class Action Complaint," asserting direct and derivative claims of aiding and abetting a breach of fiduciary duty against multiple defendants, including Realty Capital Securities. In connection with the proposed acquisition by Ventas, Inc. ("Ventas") of all the outstanding stock of the American Realty Capital Healthcare Trust, Inc. ("ARCH"), purported shareholders of ARCH have filed multiple class action lawsuits in the Circuit Court for Baltimore City, Maryland and other jurisdictions. Two of these actions named Realty Capital Securities among others, as a defendant. The actions are: Shine v. American Realty Capital Healthcare Trust, Inc. et al filed June 13, 2014 and Abbassi, et al. v. American Realty Capital Healthcare Trust, Inc. et al.filed July 9, 2014. The actions also assert derivative claims on behalf of ARCH against Realty Capital Securities. On October 10, 2014, lead plaintiffs in the Maryland state court action filed a "Consolidated Amended Derivative and Direct Class Action Complaint," asserting direct and derivative claims of aiding and abetting a breach of fiduciary duty against multiple defendants, including Realty Capital Securities, arising from its role providing services to ARCH in connection with the proposed acquisition of ARCH by Ventas and seek (i) to enjoin the proposed acquisition and (ii) recover damages if the proposed acquisition is completed. There have been no other material court filings involving Realty Capital Securities. Realty Capital Securities believes that such lawsuits are without merit, but the ultimate outcome of the matter cannot be predicted with certainty. Because the lawsuits are in their early stages, neither the outcome of the lawsuits nor an estimate of a probable loss or any reasonable possible losses are determinable at this time. No provisions for any losses related to the lawsuits have been recorded in the accompanying consolidated financial statements for the three and nine months ended September 30, 2014. An adverse judgment for monetary damages could have a material adverse effect on the operations and liquidity of the Company. All defendants believe that the claims are without merit and are defending against them vigorously. Additional lawsuits arising out of or related to the proposed acquisition of ARCH by Ventas may be filed in the future. REMINGTON ARMS: M.D.N.C. Judge Dismisses "Maxwell" Suit ------------------------------------------------------- District Judge James A. Beaty of the Middle District of North Carolina granted defendant's motion to dismiss and denied plaintiff's motion for extension in the case, RONNIE MAXWELL, Plaintiff, v. REMINGTON ARMS COMPANY, LLC, Defendant., No. 1:10CV918 (M.D.N.C.). Plaintiff Ronnie Maxwell purchased two of Remington Arms model number 597 17 HMR semi-automatic rifles. He learned that Remington recalled all 597 17 HMR due to safety and performance concerns and directed owners to immediately cease using any 597 17 HMR and corresponding ammunition. Plaintiff brought the case as a class action and asserted claims of breach of warranty under the Magnuson-Moss Warranty Act, unjust enrichment, unfair and deceptive conduct under the North Carolina Unfair and Deceptive Trade Practices Act. Defendant filed a motion to dismiss based upon plaintiff's amended complaint's failure to state a claim. Plaintiff filed a motion for extension of time to file class certification. Magistrate Judge Joe L. Webster issued an order consolidated plaintiff's case with other cases that involves a claim against defendant. Defendant filed a motion to dismiss in all three cases. In a memorandum opinion and recommendation, Judge Webster recommended that all three cases be dismissed. Plaintiff filed an objection to Judge Webster's recommendation. Judge Beaty affirmed and adopted the recommendation of the Magistrate Judge. Judge Beaty held that the objections do not alter the nature or substance of the Magistrate Judge's reasoning and conclusions. Judge Beaty granted defendant's motion to dismiss, and dismissed the case with prejudice. Judge Beaty also denied as moot plaintiff's motion for extension of time to file class certification. A copy of Judge Beaty's memorandum and opinion dated November 7, 2014 is available at http://is.gd/ATCOtTfrom Leagle.com. Ronnie Maxwell is represented by: Benjamin R. Bingham, Esq. BINGHAM & LEA LAW P.C. 319 Maverick Street San Antonio, TX 78212 Telephone: (210) 224-1819 Facsimile: (210) 224-0141 E-mail: info@binghamandlea.com - and - William Grainger Wright, Sr., Esq. Gary K. Shipman, Esq. SHIPMAN & WRIGHT, L.L.P. 575 Military Cutoff Road, Suite 106 Wilmington, NC 28405 Telephone: (910) 762-1990 Facsimile: (910) 762-6752 Remington Arms Co., Inc., is represented by: Frederick Rom, Esq. WOMBLE CARLYLE SANDRIDGE & RICE One Wells Fargo Center Suite 3500, 301 South College Street Charlotte, NC 28202-6037 Telephone: (704) 331-4900 Facsimile: (704) 331-4955 E-mail: from@wcsr.com - and - Andrew A. Lothson, Esq. James B. Vogts, Esq. MARTIN & BELL, LLP 330 N. Wabash, Suite 3300 Chicago, IL 60611 E-mail: alothson@smbtrials.com jvogts@smbtrials.com RIVERSIDE, CA: Sued for Seizing Newborn Baby Without Reason ----------------------------------------------------------- Rebekah Kearn at Courthouse News Service reports that Riverside County took a newborn baby from her mother without a reason or a warrant -- and it makes a habit of it, the mother and baby claim in a federal class action. Lead plaintiff A.A., the baby, sued Riverside County, Juvenile Dependency Investigator Karla Torres, Torres' supervisor Felicia M. Butler, and all similarly situated county social workers and investigators, in the Dec. 12 lawsuit. Plaintiffs' attorney Shawn McMillan told Courthouse News that his firm, which specializes in civil rights cases against child protection agencies, "uncovered an alarming trend" about a year ago during discovery for other cases. "County child welfare agencies regularly subvert the constitutional rights of parents and children by seizing children from their parents when there is no danger to the child, and in fact no need to seize the child at all," McMillan said. "The class action is designed to address a procedural problem. They [Riverside County social workers] as a matter of course don't get warrants before seizing kids. Deficient policies, deficient training and deficient supervision all lead to civil rights violations on a regular basis," McMillan said. "This lawsuit is designed to address the problem." The 27-page lawsuit claims that A.A. is one of thousands of children wrongfully taken from her mother by county social workers. "In February 2013, when she was three days old, plaintiff A.A. was snatched by an employee of the Riverside County Department of Public Social Services literally from the breast of her mother as they lay in the hospital recuperating from a successful, safe delivery," the complaint states. A.A. "was healthy and in no danger whatever; her mother has no history of drug, alcohol, or tobacco use nor any history of psychiatric treatment," according to the lawsuit. The county "had unlawfully seized (A.A.'s) four siblings months before and sent them into foster care," the complaint states. It claims "thousands of other children" have been seized by Riverside County employees "without any sort of warrant and without any risk of serious injury." According to the lawsuit, Tonita Rogers gave birth to A.A. by Caesarean section and spent the next few days recuperating and bonding with her baby. Rogers says she was "healthy and fully capable of taking care" of her baby. Three days later, Torres came to Rogers's hospital room at around 2:45 p.m. and saw that she was recovering well and that A.A. was healthy, according to the complaint. "Despite these facts, and solely because there had been an earlier dependency petition filed regarding plaintiffs' siblings, Torres seized the newborn baby plaintiff from her mother's care and custody," the complaint states. Rogers claims that Torres "did not bother to seek a warrant," which would have taken about two hours, nor did she seek an ex parte petition for non-custodial removal before taking the baby. McMillan told Courthouse News that A.A. was returned to her mother 5 to 10 days later. He said that many of the seized children are out of their mother's care for a year or more. He said that around half of his firm's cases involve African-American children like A.A., and that "a large portion" are from lower-income families. But McMillan said that white and upper-class parents were not "immune" to the problem and that some of his cases involve "medical doctors and investment bankers." McMillan said the social workers find the children they seize via two statewide databases: the CWS/CMS system and the Child Abuse Central Index. Anyone reported as being involved in suspected child abuse is likely to be in one or both systems, he said. "If you appear on one of them, you have an immediate black mark against you. The CWS/CMS system is largely kept a secret so that children, as they age into adulthood, and parents may not even know they are listed," McMillan said. "In any event, the databases are largely accessible to hospital and social workers and the like." The plaintiffs claim that Riverside County social workers know or should know that taking children from their families without a warrant is illegal and violates their civil rights. The county itself "turned a blind eye" to what its social workers do, and failed to train them on "child abuse and dependency type investigations and court proceedings," the complaint states. "The real problem here is that the county itself is at fault for not adequately training its workers and supervising them," McMillan said. "In addition, the county has failed -- for years, if not decades, to implement any policies or procedures to protect the 4th Amendment rights of children and the 14th Amendment rights of parents in circumstances similar to those presented in the present lawsuit." McMillan said that the constitutional violations are "a direct result of the deficient polices and practices of the county. For this reason, we anticipate that the discovery process will reveal the individually named workers were each involved in dozens, if not hundreds of unwarranted child seizures." According to the lawsuit, Riverside County "never investigates or disciplines its social workers," including Torres, who take children without reason. McMillan said he has sued Riverside County on behalf of a child seized without a warrant before. He said the county unofficially promised to fix the problem, but apparently never did. The county did not return requests for comment December 15. A.A. seeks class certification, an injunction and compensatory, statutory and punitive damages for civil rights violations. McMillan said that an injunction to stop the county from taking any more children is the most important thing. "Riverside is a test bed. The idea is to see what happens and to what extent we can establish accountability," he said. "This has the potential to affect the entire state." The Plaintiffs are represented by: Shawn Allen McMillan, Esq. LAW OFFICE OF SHAWN A. MCMILLAN 4955 Via Lapiz San Diego, CA 92122 Telephone: (858) 646-0069 Facsimile: (206) 600-4582 E-mail: attyshawn@netscape.net - and - Mark Daniel Ankcorn, Esq. ANKCORN LAW FIRM, PC 11622 El Camino Real, Suite 100 San Diego, CA 92130 Telephone: (619) 870-0600 Facsimile: (619) 684-3541 E-mail: mark@ankcorn.com ROCKET FUEL: Faces Two Class Actions Over Public Offering --------------------------------------------------------- Rocket Fuel Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that two purported class actions were filed on September 3, 2014 and September 10, 2014, respectively, in the Northern District of California against the Company and certain of the Company's officers and directors. The actions are Shah v. Rocket Fuel Inc., et al., Case No. 4:14- cv-03998, and Mehrotra v. Rocket Fuel Inc., et al., Case No. 4:14- cv-04114. The underwriters of the Company's initial public offering on September 19, 2013 (the "IPO") and its secondary offering on February 5, 2013 (the "Secondary Offering") are also named as defendants. The complaints allege that the defendants made false and misleading statements about the ability of the Company's technology to detect and eliminate fraudulent web traffic, and about the Company's future prospects. The complaints also allege that the Company's registration statements and prospectuses for the IPO and the Secondary Offering contained false and misleading statements on these topics. The complaints purport to assert claims for violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and SEC Rule 10b-5, and for violations of Sections 11 and 15 of the Securities Act of 1933, on behalf of those who purchased the Company's common stock between September 20, 2013 and August 5, 2014, inclusive, as well as those who purchased stock in the Company's initial public offering on September 19, 2013. The Mehrotra complaint also purports to assert a claim for violation of Section 12(a)(2) of the Securities Act of 1933. The complaints seek monetary damages in an unspecified amount. SAFEWAY INC: Court Grants Summary Judgment in "Rodman" Suit ----------------------------------------------------------- Plaintiff Michael Rodman and members of the certified class bring a single breach of contract action against Defendant Safeway, Inc., an online grocery delivery service on its website, safeway.com The Plaintiff argues that the Defendant breached the terms of the parties' agreement by charging higher prices for groceries on its online safeway.com delivery service than it charged in the stores where the groceries were selected. Both the Plaintiff and the Defendant have filed cross-motions for partial summary judgment on the Class's breach of contract claim. In an order dated Dec. 10, 2014, Judge Jon S. Tigar of the U.S. District Court for the Northern District of California granted the Plaintiff's motion for summary judgment, after determining that Safeway breached the contract by charging the Plaintiff and the Class more than the prices permitted under the terms of the contract and the Class is entitled to damages even for purchases which occurred after the Special Terms were amended on Nov. 15, 2011. Therefore, Judge Tigar held that Safeway is liable to the Plaintiff and the Class for the aggregate amount of the online mark-up from April 12, 2010, through the present. Judge Tigar also sets a case management conference for Jan. 21, 2015, at 2:00 p.m., at which time it will set the remaining dates in the action. The case is MICHAEL RODMAN, Plaintiff, v. SAFEWAY INC., Defendant, CASE NO. 11-CV-03003-JST (N.D. Calif.). A full-text copy of Judge Tigar's Decision is available at http://is.gd/xI3fKbfrom Leagle.com. Michael Rodman, Plaintiff, represented by James C Shah, Shepherd, Finkelman, Miller & Shah, LLP, Rosemary Farrales Luzon, Shepherd, Finkelman, Miller & Shah, LLP, Scott Rhead Shepherd, Shepherd, Finkelman, Miller Shah, LLP, Steven Alan Schwartz, Esq. -- SteveSchwartz@chimicles.com -- Chimicles & Tikellis, LLP & Timothy Newlyn Mathews, Esq. -- TimothyMathews@chimicles.com -- at Chimicles & Tikellis LLP. Safeway Inc., Defendant, represented by Brian R. Blackman, Esq. -- bblackman@sheppardmullin.com -- Sheppard Mullin Richter & Hampton LLP, Elizabeth Sarah Berman, Esq. -- ebarcohana@sheppardmullin.com -- Sheppard Mullin Richter & Hampton LLP & P. Craig Cardon, Esq. -- ccardon@sheppardmullin.com -- at Sheppard Mullin Richter & Hampton LLP. SCORES HOLDING: Has $59,084 Class Action Settlement Receivable -------------------------------------------------------------- Scores Holding Company, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that as of September 30, 2014, the settlement receivable in a class action lawsuit is $59,084. On September 26, 2011, the Company, Richard Goldring and Elliot Osher (Goldring and Osher were formerly two of the Company's principal shareholders) (collectively the "Defendants") and Sari Diaz et al. (the "Plaintiffs") entered into a Court approved Joint Stipulation of Settlement and Release (the "Settlement Agreement") relating to a purported class action and collective action on behalf of all tipped employees filed by Plaintiffs, pursuant to which Defendants agreed to make a settlement payment of $450,000 to resolve and settle awards to Plaintiffs and related Plaintiffs' attorneys' fees. Additionally, the Defendants agreed to pay the employer portion of payroll taxes on approximately $300,000 in distributions, approximately $15,600. In a settlement payment agreement among the Company, Goldring and Osher, the Company agreed to advance all of the Defendants' obligations under the Settlement Agreement and to pay $64,500 of Goldring's and Osher's legal fees to their designated attorney. In consideration for the Company's payment of these obligations, Goldring and Osher agreed, jointly and severally, to pay the Company $440,000 plus interest at the rate of 5% per annum on the unpaid balance of such amount, in 40 equal monthly payments of $11,965 per month. To secure his obligations under this agreement, Goldring agreed to assign to the Company a portion of his interests in a promissory note dated September 14, 2009 in the principal amount of $2,400,000 made by a third party to Goldring (the "Note") and to grant the Company a security interest in the Note, which will remain in effect until his obligations under this settlement payment agreement are paid in full. As of September 30, 2014, the settlement receivable is $59,084. On December 29, 2011 the Company entered into a Promissory Note with Goldring for $30,000 plus interest at the rate of 5% per annum on the unpaid balance. To secure his obligations under this agreement, Goldring agreed to assign to the Company a portion of his interests in a promissory note dated September 14, 2009 in the principal amount of $2,400,000 made by a third party to Goldring (the "Note") and to grant the Company a security interest in the Note, which will remain in effect until his obligations under this settlement payment agreement are paid in full. Three payments of $11,965 are due beginning March 2015. As of September 30, 2014, this promissory note balance is $34,412. SKLAR-MARKIND: "Brown" FDCPA Suit to Proceed in Arbitration ----------------------------------------------------------- Magistrate Judge Cynthia Reed Eddy of the Western District of Pennsylvania granted defendants' motion in the case entitled THOMAS MICHAEL BROWN, an individual; on behalf of himself and all others similarly situated, Plaintiffs, v. SKLAR-MARKIND a/k/a MARKIND LAW GROUP, P.C. a/k/a LAW OFFICES OF ANDREW SKLAR, P.C., ANDREW SKLAR, individually and in his official capacity, LLOYD MARKIND, individually and in his official capacity, JORDAN W. FELZER, individually and in his official capacity, and JOHN AND JANE DOES NUMBERS 1 THROUGH 25, Defendants., Civil Action No. 14- 0266 (W.D. Pa.) Plaintiff Thomas Michael Brown purchased a Ford Fiesta on February 2011 and entered into a Simple Interest Retail Installment Sales Contract with Woltz & Wind. Woltz & Wind assigned the Sales Contract to Ford Motor Credit Company. In October 2012, Brown defaulted on the contract. The Fiesta was ultimately repossessed, and FMCC retained Sklar-Markind to represent it in an action to recover the deficiency between the amount for which the repossessed vehicle was sold and the balance owed. Plaintiff filed a lawsuit, in his own behalf and on behalf of a putative class, stating a claim under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. Section 1692 et seq., for Defendants' allegedly improper debt collection tactics. He identifies defendants as debt collectors within the meaning of the FDCPA, and alleges that in their efforts to collect a debt he owed their client in a civil action filed in the Court of Common Pleas of Allegheny County, Pennsylvania, defendants made false or misleading representations with regard to the character and legal status of his debt and his obligation to reimburse the cost of the debt collectors' services. Defendants filed a Motion to Compel Arbitration and Stay Proceedings, attaching the Simple Interest Retail Installment Sales Contract. Among other things, the contract requires Plaintiff to arbitrate all claims arising out of or in relation to the application for credit, the contract, or any resulting transaction or relationship. Magistrate Judge Eddy granted defendants' motion to compel arbitration and stay the proceedings. A copy of Magistrate Judge Eddy's memorandum opinion dated November 7, 2014, is available at http://is.gd/j4jFw3from Leagle.com. THOMAS MICHAEL BROWN, an individual; on behalf of himself and all others similarly situated, Plaintiff, represented by Reed James Davis -- rd@davislawgroup.com -- at Davis Law Group, P.C. SKLAR - MARKIND, Defendant, represented by Danielle M. Vugrinovich -- dmvugrinovich@mdwcg.com -- at Marshall, Dennehey, Warner, Coleman & Goggin. Marshall Dennehey also represents defendant ANDREW SKLAR, individually and in his official capacity; and LLOYD MARKIND, individually and in his official capacity. SKYPEOPLE FRUIT: Paid $2,200,000 to Settle "Lewy" Class Action -------------------------------------------------------------- Skypeople Fruit Juice, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that the Company reached a settlement on the Zachary Lewy et al. consolidated securities fraud class action on January 27, 2014. The settlement amount of $2,200,000 has been paid in full to the settlement fund. SONY COMPUTER: Court Refuses to Dismiss Suit Over 'Killzone' Game ----------------------------------------------------------------- A class action lawsuit accusing Sony Computer Entertainment of embellishing how good the graphics are in its "Killzone: Shadow Fall" videogame will proceed, reports Arvin Temkar at Courthouse News Service, citing a federal court ruling. In the class action filed this past August, lead plaintiff Douglas Ladore claims that Sony's "Killzone: Shadow Fall" videogame -- pitched by the company as a "crowning achievement in the videogame industry" -- was advertised to have multiplayer mode graphics in full 1080p high-definition resolution, but didn't meet that bar. "Gamers quickly noticed and complained that Killzone's multiplayer graphics were blurry to the point of distraction," Ladore's complaint alleges. Sony moved to dismiss the complaint on several grounds. The company argued that its representations about the graphics weren't false, that Ladore didn't adequately plead reliance on any alleged misrepresentation, that the game doesn't fall under the California Consumer Legal Remedies Act and that the "economic loss rule" bars Ladore's tort claim for negligent misrepresentation. But on December 16, U.S. District Judge Edward Chen denied all but one of Sony's arguments, holding the company's motion was "premised on an unduly narrow reading of plaintiff's complaint." "The substantial majority of the arguments Sony raises in its motion to dismiss can be rejected for two simple reasons -- either Sony's arguments ignore important factual allegations that are well pleaded in Ladore's complaint, or Sony's arguments require this court to construe the complaint in the light most favorable to Sony, rather than Ladore, who is entitled to the benefit of all reasonable inferences at this stage of the proceedings," Chen wrote. On Ladore's negligent misrepresentation cause of action, however, Chen found the claim inadequately pleaded under the economic loss rule since Ladore hadn't asserted any noneconomic losses stemming from his purchase of the game. Ladore has 30 days to file an amended complaint. The Plaintiff is represented by: Mark Eisen, Esq. EDELSON PC 555 West Fifth Street, 31st Floor Los Angeles, CA 90013 E-mail: meisen@edelson.com The case is Douglas Ladore, individually and on behalf of all others similarly situated v. Sony Computer Entertainment America, LLC, Case No. 3:14-cv-03530-EMC, in the U.S. District Court for the Northern District of California. SPENDSMART NETWORKS: Expects Discovery to be Completed This Month ----------------------------------------------------------------- Spendsmart Networks, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that the Company expects discovery to be completed by December in a class action lawsuit at which point SMS Masterminds will renew its motion for summary judgment. On January 1, 2014, SMS Masterminds was named in a potential class-action lawsuit filed in the United States District Court Eastern District of New York relating to alleged violations of the Telephone Consumer Protection Act of 1991 (the "TCPA"). The plaintiff's lawsuit has sought the certification of a class, though as of the date of this Quarterly Report on Form 10-Q such class certification has not been approved by the court. Specifically, the complaint alleges that SMS Masterminds sent unsolicited text messages to the plaintiff and other recipients without the prior express invitation or permission of the recipients and such plaintiff is now seeking unspecified monetary damages, injunctive relief, costs and attorneys' fees. SMS Masterminds filed its motion for summary judgment in June. The briefing on the motion concluded on August 5th. "Plaintiff made numerous requests for discovery prior to filing his opposition to our motion and repeated these requests in his opposition. The hearing on the motion took place September 17th. The Court granted Plaintiff a brief window to conduct discovery limited to the issues raised in our motion for summary judgment. Class discovery remains stayed," the Company said. "We expect discovery to be completed by December at which point SMS Masterminds will renew its motion for summary judgment. We believe Plaintiff's allegations have no merit and will continue to vigorously defend against Plaintiff's claims." STATE FARM: Crawford's Auto Center Suit Moved to M.D. Fla. ---------------------------------------------------------- The class action lawsuit titled Crawford's Auto Center, Inc. v. State Farm Mutual Automobile Insurance Company, et al., Case No. 1:14-cv-03146, was transferred from the U.S. District Court for the Northern District of Illinois to the U.S. District Court for the Middle District of Florida (Orlando). The Florida District Court Clerk assigned Case No. 6:14-cv-06016-GAP-TBS to the proceeding. This nationwide class action seeks damages and additional relief under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), and other state laws, to remedy the Defendant insurers' alleged long-running unlawful conduct to suppress compensation to repair facilities for automotive collision repairs covered by insurance. Defendant insurers State Farm, Allstate, GEICO, Progressive, Farmers, Liberty Mutual and Nationwide, together with their three conspirator insurers, are the ten largest private passenger auto insurers in the United States, collectively holding 70% of the market, and control all aspects of collision repairs, including establishing the industry standards for compensation paid to repair facilities. The Plaintiff is represented by: Steven L. Bloch, Esq. David F. Sorensen, Esq. BERGER & MONTAGUE, PC 1622 Locust St. Philadelphia, PA 19103 Telephone: (215) 875-3000 Facsimile: (215) 875-5707 E-mail: sbloch@bm.net dsorensen@bm.net - and - John W. Barrett, Esq. BAILEY & GLASSER LLP 209 Capitol Street Charleston, WV 25301 Telephone: (304) 345-6555 E-mail: jbarrett@baileyglasser.com - and - Jennifer Winter Sprengel, Esq. CAFFERTY CLOBES MERIWETHER & SPRENGEL LLP 30 North LaSalle Street, Suite 3200 Chicago, IL 60602 Telephone: (312) 782-4880 E-mail: jsprengel@caffertyclobes.com Defendants State Farm Mutual Automobile Insurance Company, State Farm General Insurance Company, State Farm Indemnity Company, State Farm Guaranty Insurance Company, State Farm Fire and Casualty Company and State Farm County Mutual Insurance Company of Texas are represented by: Brent R. Austin, Esq. Michael L. McCluggage, Esq. EIMER STAHL LLP 224 S Michigan Avenue, Suite 1100 Chicago, IL 60604 Telephone: (312) 660-7684 E-mail: baustin@eimerstahl.com mmccluggage@eimerstahl.com - and - Elizabeth Helmer, Esq. Michael P. Kenny, Esq. Tiffany L. Powers, Esq. ALSTON & BIRD, LLP 1201 W Peachtree St., Suite 4200 Atlanta, GA 30309-3424 Telephone: (404) 881-4724 Facsimile: (404) 881-7777 E-mail: elizabeth.helmer@alston.com mike.kenny@alston.com tiffany.powers@alston.com Defendants Allstate Corporation, Allstate Insurance Company, Allstate County Mutual Insurance Company, Allstate Fire & Casualty Insurance Company, Allstate Indemnity Company, Allstate New Jersey Insurance, Allstate New Jersey Property and Casualty Insurance Company, Allstate Property & Casualty Insurance Company, Encompass Indemnity Company, Esurance Insurance Company and Esurance Property & Casualty Insurance Company are represented by: Richard L. Fenton, Esq. Mark L. Hanover, Esq. DENTONS US LLP 233 S Wacker Dr., Suite 7800 Chicago, IL 60606 Telephone: (312) 876-8000 Facsimile: (312) 876-7934 E-mail: richard.fenton@dentons.com mark.hanover@dentons.com Defendants Government Employee's Insurance Company, Geico Indemnity Company, GEICO General Insurance Company, Geico Casualty Company, GEICO Advantage Insurance Company, GEICO Choice Insurance Company, GEICO Secure Insurance Company and GEICO County Mutual Insurance Company are represented by: Dan W. Goldfine, Esq. Jamie L. Halavais, Esq. Joshua Grabel, Esq. SNELL & WILMER, LLP One Arizona Center 400 E Van Buren Phoenix, AZ 85004-2202 Telephone: (602) 382-6282 Facsimile: (602) 382-6070 E-mail: dgoldfine@swlaw.com jhalavais@swlaw.com jgrabel@swlaw.com - and - Jason H. Nash, Esq. John T. Williams, Esq. HINKHOUSE WILLIAMS WALSH, LLP 180 N Stetson Ave., Suite 3400 Chicago, IL 60601 Telephone: (312) 784-5416 Facsimile: (312) 784-5499 E-mail: jnash@hww-law.com jwilliams@hww-law.com Defendants The Progressive Corporation, Progressive American Insurance Company, Progressive Casualty Insurance Company, Progressive Gulf Insurance Company, Progressive Specialty Insurance Company, Progressive Classic Insurance Company, Progressive Michigan Insurance Company, Progressive Mountain Insurance Company, Progressive Northern Insurance Company, Progressive Northwestern Insurance, Progressive Preferred Insurance Company, Progressive Security Insurance Co, Progressive Southeastern Insurance Company, Progressive West Insurance Company, Progressive Advanced Insurance Company, Progressive Choice Insurance Company, Progressive Direct Insurance Company, Progressive Garden State Insurance, Progressive Marathon Insurance Company, Progressive Paloverde Insurance Company, Progressive Select Insurance Company, Progressive Premier Insurance of IL, Progressive Universal Insurance Company, Progressive County Mutual Insurance Company, Artisan & Truckers Casualty Company and United Financial Casualty Company are represented by: Christine A. Hopkinson, Esq. KING & SPALDING, LLP 1180 Peachtree St. NE Atlanta, GA 30309-3521 Telephone: (404) 572-3560 Facsimile: (404) 572-5139 E-mail: chopkinson@kslaw.com - and - Michael Brian Galibois, Esq. Elizabeth Doolin, Esq. CHITTENDEN, MURDAY & NOVOTNY, LLC 303 West Madison Street, Suite 1400 Chicago, IL 60606 Telephone: (312) 281-3600 E-mail: mgalibois@cmn-law.com edoolin@cmn-law.com - and - Michael R. Nelson, Esq. Kymberly Kochis, Esq. NELSON BROWN & CO 17 State Street, 29th Floor New York, NY 10004 Telephone: (215) 233-0130 Facsimile: (215) 233-0172 E-mail: mnelson@nelsonbrownco.com kkochis@nelsonbrownco.com Defendants Farmers Insurance Exchange, Truck Insurance Exchange, Farmers Insurance Company of Arizona, Farmers Insurance Company of Oregon, Farmers Insurance Company of Washington, Farmers Insurance Company, Inc., Farmers Texas County Mutual Insurance Company, Illinois Farmers Insurance Company, Mid-Century Insurance Company, Foremost County Mutual Insurance Company, Foremost Insurance Company Grand Rapids, Bristol West Insurance Company, Coast National Insurance Company, 21st Century Centennial Insurance Company, 21st Century Indemnity Insurance Company and 21st Century Insurance Company are represented by: Brian Ignatius Hays, Esq. Katherine Heid Harris, Esq. Randall Allan Hack, Esq. LOCKE LORD LLP 111 South Wacker Drive Chicago, IL 60606 Telephone: (312) 443-0700 E-mail: bhays@lockelord.com kharris@lockelord.com rhack@lockelord.com - and - David L. Yohai, Esq. Eric Hochstadt, Esq. John Mastando, Esq. WEIL, GOTSHAL & MANGES, LLP 767 Fifth Ave. New York, NY 10153 Telephone: (212) 310-8275 Facsimile: (212) 310-8007 E-mail: david.yohai@weil.com eric.hochstadt@weil.com john.mastando@weil.com Defendants Liberty Mutual Holding Company, Inc., Liberty Mutual Group Inc., The First Liberty Insurance Corporation, Liberty County Mutual Insurance Company, Texas, Liberty Mutual Fire Insurance Company, Liberty Mutual Insurance Company, LM General Insurance Company, Peerless Insurance Company, Safeco Insurance Company of America and Safeco Insurance Company of Illinois are represented by: Joseph Edward Ezzie, Esq. Trischa Snyder Chapman, Esq. BAKER & HOSTETLER, LLP Capital Square, Suite 2100 65 E State Street Columbus, OH 43215-4260 Telephone: (614) 462-4758 E-mail: jezzie@bakerlaw.com tchapman@bakerlaw.com - and - Michael E. Mumford, Esq. BAKER & HOSTETLER, LLP 3200 National City Center 1900 E 9th Street Cleveland, OH 44114-3485 Telephone: (216) 861-7578 Facsimile: (216) 696-0740 E-mail: mmumford@bakerlaw.com - and - William Kevin Kane, Esq. BAKER HOSTETLER LLP 191 N. Wacker Drive, Suite 3100 Chicago, IL 60606 Telephone: (312) 416-6211 Facsimile: (312) 832-4444 E-mail: wkane@bakerlaw.com Defendants Nationwide Mutual Insurance Company, Allied Property & Casualty Insurance Company, AMCO Insurance Company, Depositors Insurance Company, Nationwide Insurance Company of America, Colonial County Mutual Insurance Company, Nationwide Affinity Insurance Company Of America, Nationwide Agribusiness Insurance Company, Nationwide Property & Casualty Insurance Company and Nationwide Mutual Fire Insurance Company are represented by: Josh Goldberg, Esq. CARPENTER LIPPS & LELAND LLP 180 N. LaSalle Street, Suite 2640 Chicago, IL 60601 Telephone: (312) 777-4825 Facsimile: (312) 777-4839 E-mail: goldberg@carpenterlipps.com - and - Michael Beekhuizen, Esq. Michael Carpenter, Esq. CARPENTER LIPPS & LELAND LLP 280 North High Street, Suite 1300 Columbus, OH 43215 Telephone: (614) 365-4100 Facsimile: (614) 365-9145 E-mail: beekhuizen@carpenterlipps.com carpenter@carpenterlipps.com - and - Peter T. Snow, Esq. FARUKI, IRELAND & COX, PLL 500 Courthouse Plaza SW 10 N Ludlow St. Dayton, OH 45402 Telephone: (614) 365-4117 Facsimile: (614) 365-9145 E-mail: snow@carpenterlipps.com SWS GROUP: Parties Reach MOU to Settle Consolidated Action ---------------------------------------------------------- SWS Group, Inc., said in its Form 8-K Current Report filed with the Securities and Exchange Commission on November 14, 2014, that the parties to the consolidated class action lawsuit entered into a memorandum of understanding (the "MOU") reflecting the terms of an agreement, subject to final approval by the Court and certain other conditions, to settle the Consolidated Action. As disclosed in the definitive proxy statement/prospectus dated October 14, 2014 (the "Proxy Statement") relating to the proposed merger (the "Merger") of SWS Group, Inc. ("SWS" or the "Company") with and into Peruna LLC ("Merger Sub"), a wholly owned subsidiary of Hilltop Holdings Inc. ("Hilltop"), pursuant to the Agreement and Plan of Merger (the "Merger Agreement"), dated as of March 31, 2014, by and among the Company, Hilltop and Merger Sub, two purported shareholder class action complaints have been filed in the Delaware Court of Chancery (the "Court") against Hilltop, Merger Sub, the Company and the individual members of the Company's board of directors. On May 13, 2014, the Court consolidated the two actions for all purposes under the caption In re SWS Group, Inc. Stockholder Litigation (the "Consolidated Action"). The Consolidated Action generally alleges claims for breach of fiduciary duty by the individual directors of the Company, and claims against Hilltop for aiding and abetting that breach of fiduciary duty. The complaint further alleges that the proxy statement/prospectus filed by Hilltop on May 29, 2014 omits or misstates certain material information. The Consolidated Action requests, among other things, that the Merger be enjoined. On November 13, 2014, the parties to the Consolidated Action entered into a memorandum of understanding (the "MOU") reflecting the terms of an agreement, subject to final approval by the Court and certain other conditions, to settle the Consolidated Action. Pursuant to the MOU, and without admitting any wrongdoing or that these supplemental disclosures are material or required to be made, defendants agreed to make certain supplemental disclosures requested by plaintiffs in the Consolidated Action. The MOU further provides that, among other things, (a) the parties will negotiate a definitive stipulation of settlement (the "Stipulation") and will submit the Stipulation to the Court for review and approval; (b) the Stipulation will provide for dismissal of the Consolidated Action with prejudice; (c) the Stipulation will include a general release of defendants of claims relating to, among other things, the Merger and the Merger Agreement; and (d) the settlement is conditioned on, among other things, consummation of the Merger, completion of confirmatory discovery, class certification and final approval by the Court after notice to the Company's shareholders. Defendants believe that the allegations and claims in the litigation are without merit and, if the settlement does not receive final approval, intend to defend them vigorously. Defendants are entering into the settlement solely to eliminate the burden and expense of further litigation and to put the claims that were or could have been asserted to rest. The settlement will not affect the timing of the Merger or the amount of consideration to be paid in the Merger. In addition, Hilltop has agreed: (i) to forbear from asserting its right to a Termination Fee (as such term is defined in the Merger Agreement) in the event that the conditions precedent to payment of the Termination Fee pursuant to Section 8.3(b)(i) of the Merger Agreement are satisfied, to the extent that SWS consummates a Third Party Acquisition or enters into any Alternative Acquisition Agreement (as those terms are defined in the Merger Agreement) more than six (6) months after termination of the Merger Agreement; (ii) to forbear from asserting its right to payment of any portion of the Termination Fee to the extent that such Termination Fee exceeds $6,000,000 (notwithstanding the fact that the Merger Agreement currently provides for a Termination Fee equal to $8,000,000) in the event that Hilltop terminates the Merger Agreement pursuant to Section 8.1(c)(i) of the Merger Agreement and such Termination Fee is payable pursuant to Section 8.3(b)(ii) of the Merger Agreement; and (iii) to forbear from enforcing that portion of the covenant by SWS contained in Section 6.10(a) of the Merger Agreement that provides that SWS "shall not, and shall cause its subsidiaries not to, and shall use its reasonable best efforts to cause its or their respective officers, directors, employees, its representatives or agents not to, and shall not resolve or propose to, directly or indirectly . . . (ii) waive, terminate, modify or fail to enforce any provision of any contractual 'standstill' or similar obligation of any person other than Purchaser and Merger Sub." TRAVELERS PROPERTY: 3d Cir. Flips in Part Ruling in "Judon" Suit ---------------------------------------------------------------- The United States Court of Appeals for the Third Circuit, in an opinion dated Dec. 12, 2014, affirmed in part and vacated in part a lower court's ruling in the class action filed by Francine Judon against Travelers Property Casualty Co. of America, the insurer of Keystone Quality Transport Company, which owns the passenger vehicle that injured Judon in 2010. The case concerns the applicable burdens of proof for establishing jurisdiction in a removal action under the Class Action Fairness Act of 2005, 28 U.S.C. Sections 1332(d), 1453. The Defendant removed the case to the United States District Court for the Eastern District of Pennsylvania and the Plaintiff timely sought remand. The District Court found CAFA's numerosity and amount-in- controversy requirements to be in dispute and placed the burden of proof on Travelers to establish jurisdiction under CAFA by a preponderance of the evidence. Concluding that Travelers failed to meet its burden, the District Court issued an order remanding the case to state court. Travelers appealed. The Third Circuit held that as Judon's complaint unambiguously pleaded that the numerosity requirement was satisfied, the District Court should have placed the burden of proof on Judon to show, to a legal certainty, that the numerosity requirement was not satisfied. But the District Court correctly applied the preponderance of the evidence standard to the amount-in- controversy requirement. The appeals case is FRANCINE JUDON, INDIVIDUALLY AND ON BEHALF OF A CLASS OF SIMILARLY SITUATED PERSONS, v. TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, Appellant, NOS. 14-3406, 14-4099 (3d Cir.). A full-text copy of the Third Circuit's Decision is available at http://is.gd/kV4sr1from Leagle.com. Counsel for Appellee: James C. Haggerty, Esq. Suzanne T. Tighe, Esq. HAGGERTY, GOLDBERG, SCHLEIFER & KUPERSMITH 1835 Market Street, Suite 2700 Philadelphia, PA 19103 Email: jhaggerty@hgsklawyers.com stighe@hgsklawyers.com Counsel for Appellant: Matthew A. Goldberg, Esq. Joseph Kernen, Esq. Brian M. Robinson, Esq. DLA PIPER 1650 Market Street One Liberty Place, Suite 4900 Philadelphia, PA 19103 Email: matthew.goldberg@dlapiper.com joseph.kernen@dlapiper.com brian.robinson@dlapiper.com TREMOR VIDEO: Files Reply in Support of Case Dismissal Bid ---------------------------------------------------------- Tremor Video, Inc. said in its Form 10-Q Report filed with the Securities and Exchange Commission on November 14, 2014, for the quarterly period ended September 30, 2014, that the Company filed a reply in support of its motion to dismiss the amended class action complaint. The Company said, "In November 2013, a putative class action lawsuit was filed in the United States District Court for the Southern District of New York against us, our directors, and certain of our executive officers. The lawsuit alleges certain misrepresentations by us in connection with our IPO concerning our business and prospects. The lawsuit seeks unspecified damages." On February 7, 2014, the Court entered an order appointing lead plaintiffs and lead counsel. On April 22, 2014, lead plaintiffs filed an amended complaint. "On July 14, 2014, we filed a motion to dismiss the amended complaint. On August 28, 2014, lead plaintiffs filed their opposition to the motion to dismiss. On September 18, 2014, we filed a reply in support of the motion to dismiss the amended complaint," the Company said. "We intend to vigorously defend against these claims. Due to the early stage of these proceedings, we cannot predict the likely outcome of the lawsuit, and an adverse result could have a material effect on our financial statements." UNI-PIXEL INC: Agrees to Settle Shareholder Litigation ------------------------------------------------------ The Woodlands, Texas-based Uni-Pixel, Inc. (NASDAQ: UNXL), a provider of Performance Engineered Films(TM) to the touch screen, flexible printed electronics, lighting and display markets, has entered memorandums of understanding to settle the following previously disclosed lawsuits: * the securities class action lawsuit pending in the U.S. District Court for the Southern District of Texas, captioned Fitzpatrick, Charles J. v. Uni-Pixel, Inc., et. al. (Cause No. 4:13-cv-01649); and * the consolidated shareholder derivative lawsuit pending in the District Court of Harris County, Texas, captioned In re Uni- Pixel, Inc., Shareholder Derivative Litigation (Cause No. 2014- 08251). The proposed settlements would resolve for all defendants all of the issues that are pending in the class action and in the consolidated derivative action relating to Uni-Pixel's public statements regarding its licensing agreements and product development. Uni-Pixel determined to settle these matters to eliminate the burden, distraction, and expense of further litigation. If completed, the class action settlement would result in a payment of $2.35 million in cash to the settlement class, inclusive of fees and expenses. In addition, Uni-Pixel would issue $2.15 million in common stock to the settlement class. The proposed consolidated derivative settlement would result in a payment of $150,000 in cash, the issuance of $125,000 of Uni-Pixel common stock, and certain governance improvements. Uni-Pixel anticipates that the cash payment portions of both settlements, totaling $2.5 million, would be paid from insurance proceeds. "With these memorandums of understanding in place, we believe we are one step closer to resolving these suits," said Jeff Hawthorne, president and CEO of Uni-Pixel. "We are hopeful the courts will give final approval to the settlements." The settlements described in this press release are not yet consummated and are subject to a number of conditions. The terms outlined in the memorandums of understanding Uni-Pixel has entered into are subject to the parties concluding definitive settlement agreements. The proposed settlements are also subject to final approval by Uni-Pixel's insurance carrier and by the courts following completion of a fairness hearing. Hearing dates have not yet been set on final approval of the proposed settlements. Headquartered in The Woodlands, Texas, Uni-Pixel, Inc. (NASDAQ: UNXL) -- http://www.unipixel.com/-- delivers Performance Engineered Films to the Display and Flexible Electronics markets. UniPixel's high-volume roll-to-roll or continuous flow manufacturing process offers high-fidelity replication of advanced micro-optic structures and surface characteristics over large areas. A key focus for UniPixel is developing electronic conductive films for use in electronic sensors for consumer and industrial applications. The company's roll-to-roll electronics manufacturing process prints fine line conductive elements on thin films. The company is marketing its films for touch panel sensor, cover glass replacement, protective cover film, antenna and custom circuitry applications under the UniPixel label, and potentially under private label or Original Equipment Manufacturers (OEM) brands. UNITED HEALTHCARE: Court Trims Suit Over Employee Benefit Plan -------------------------------------------------------------- District Judge Katherine B. Forrest of the Southern District of New York granted in part and denied in part defendants' motion for summary judgment in, or dismissal of, the case MARIANNE GATES, individually and on behalf of all others similarly situated, Plaintiff, v. UNITED HEALTHCARE INSURANCE COMPANY; ALLIANCEBERNSTEIN L.P.; LIFE, AD&D, DISABILITY & MEDICAL PLAN FOR EMPLOYEES OF ALLIANCEBERNSTEIN L.P.; UNITED HEALTHCARE CHOICE PLUS COPAY PLAN FOR ALLIANCEBERNSTEIN L.P.; ALLIANCEBERNSTEIN L.P. RETIREE MEDICAL PLAN FOR EMPLOYEES OF ALLIANCEBERNSTEIN L.P.; and ALLIANCEBERNSTEIN L.P. UNITED HEALTHCARE INDEMNITY PLAN, Defendants., Case No. 11-CV-3487 (KBF) (S.D.N.Y.) Marianne Gates and the members of the classes that she seeks to represent, were or are participants in and/or beneficiaries of employee health care plans sponsored by private companies, including AllianceBernstein L.P. ("AB"), and partially or fully administered and/or insured by defendant United Healthcare Insurance Company ("URIC"). Plaintiff is a retired employee of AllianceBernstein L.P. (AB) and a participant in the Life, AD&D, Disability & Medical Plan for Employees of AllianceBernstein L.P., the AllianceBernstein L.P. Retiree Plan for Employees of AllianceBernstein L.P., and the AllianceBernstein L.P. United Healthcare Indemnity Plan. She was formerly a participant in the United Healthcare Choice Plus Co-pay Plan. Plaintiffs' complaint alleged the following causes of action: 1. First Claim for Relief (against AB defendants): to recover benefits pursuant to Section 502(a)(1)(B) and for injunctive relief pursuant to Section 502(a)(3); that claim includes an assertion of a breach of fiduciary duty for use of the Estimating Policy; 2. Second Claim for Relief (against UHIC): for injunctive relief pursuant to Section 502(a)(3) to bar UHIC's continued use of the Estimating Policy; 3. Third Claim for Relief (against AB Plans): for relief pursuant to Sections 502(a)(3) and 503 for breach of fiduciary duty for failure to comply with appropriate claims procedure; 4. Fourth Claim for Relief (against UHIC "derivatively on behalf of' the Plans for which UHIC serves as Claims Administrator): for relief pursuant to Sections 409(a), 502(a)(2), and 502(a)(3) for breach of fiduciary duty for failure to comply with appropriate claims procedure; 5. Fifth Claim for Relief (against AB): for relief pursuant to Sections 409(a) and 502(a)(2) for breach of fiduciary duty for failure to terminate UHIC as Claims Administrator and failure to prudently select and monitor the Claims Administrator. Gates' claims may be grouped into three categories: benefits claims (First and Second Claims for Relief), procedural claims (Third and Fourth Claims for Relief), and a monitoring claim (Fifth Claim for Relief). Defendants filed a motion for summary judgment on or dismissal of plaintiff's five causes of action. Judge Forrest denied defendants' motion as to the first claim for relief and granted as to the second, third, fourth, and fifth claims for relief. A copy of Judge Forrest's opinion and order dated November 7, 2014 is available at http://is.gd/TYZzaVfrom Leagle.com Marianne Gates, Plaintiff, represented by David Steven Preminger - - dpreminger@kellerrohrback.com -- Derek W. Loeser -- dloeser@kellerrohrbaack.com -- Erin M. Riley -- eriley@kellerrohrback.com -- Lynn Lincoln Sarko -- lsarko@kellerrohrback.com - and -- Sarah H. Kimberly -- skimberley @kellerrohrback.com -- at Keller Rohrback L.L.P. Defendants Alliancebernstein L.P., United Healthcare Choice Plus Copay Plan For Alliacebernstein L.P., and Alliancebernstein L.P. United Healthcare Indemnity Plan, represented by John D. Giansello -- jgiansello@orrick.com -- and -- Michael Delikat -- mdelikat@orrick.com -- at Orrick, Herrington & Sutcliffe LLP. United Healthcare Insurance Company, Defendant, represented by Nicholas James Pappas -- Nicholas.pappas@weil.com -- at Weil, Gotshal & Manges LLP. US HEALTH DEPARTMENT: Sued by Arapaho Tribe Over Obamacare Issues ----------------------------------------------------------------- Poverty stricken Native Americans in Wyoming are scrambling to protect their exemptions under Obamacare before the "large employer" mandate takes effect Jan. 1, 2015, reports Philip A. Janquart at Courthouse News Service. The Northern Arapaho Tribe sued the U.S. Department of Health & Human Services and the U.S. Department of the Treasury Secretary on December 8 in a federal class action. The 2010 Patient Protection and Affordable Care Act aka Obamacare provides Native Americans with an exemption from the individual and large employer mandates. But the Arapaho say the implementing regulations have "perhaps inadvertently, created unlawful barriers that block Native Americans from accessing the Premium Tax Credits and the Cost Sharing Exemption that Congress provided." The Arapaho claims the regulations "will deprive Native Americans of critical health care assistance by re-writing provisions of the ACA in violation of federal law." Roughly 24,000 Arapaho live on the 3,473-square-mile Wind River Indian Reservation in west central Wyoming. Their median income is about $16,000 per year -- just 31 percent of the $51,900 median income of the country as a whole. Arapaho enterprises employ about 600 people, at casinos, a grocery store, gas station and laundry service. Providing them with health insurance is difficult due to lack of bargaining power with health care providers and skyrocketing costs, the tribe says. The Affordable Care Act could have provided impoverished Native Americans access to "high quality," low-cost insurance, the tribe says, but the implementing regulations blocked it. "Contrary to the intent of Congress, when the cluster IRS regulation and rules implementing the ACA Large Employer mandate takes effect on Jan. 1, 2015, tribal employees will be deprived of the coverage currently in place under policies provided on the exchange," the complaint states. "Under the new IRS rules and regulations . . . tribal employees will be offered two inferior insurance options: 1) an exchange plan without the . . . premium tax credits and the cost sharing exemption; or 2) an employer plan that is more expensive and does not provide a cost sharing benefit." Either way, costs will increase and coverage will decrease, which is violates the purpose of the lie, the Arapaho say. "The IRS apparently considers the tribe and its enterprises to fall within its definition of a large employer," the complaint states. "If the tribe is subjected to the large employer mandate, defendants will effectively block tribal member employees between 100 percent and 400 percent of poverty from premium tax credits that subsidize insurance coverage available on the exchanges and nullify the statute by regulation," according to the complaint. Tribal employees below 300 percent of the poverty level -- i.e., those at the tribal median income level -- will be blocked from the cost-sharing exemption, the Arapaho say. "Congress did not intend to create special benefits in the ACA for working-class Native Americans, only to have defendants promulgate regulations that prevent working-class Native Americans who work for tribes from obtaining those benefits," the complaint states. The Arapaho want the court to declare the large employer mandate unlawful as applied to them, prohibit the government from fining the tribe for noncompliance and issue an injunction that allows them access health insurance as it currently exists. The Tribe is represented by: Andrew W. Baldwin, Esq. BALDWIN, CROCKER & RUDD, P.C. Post Office Box 1229 Lander, Wyoming 82520-1229 Telephone: (307) 332-3385 E-mail: andy@bcrattorneys.com USI INC: Faces "P & S" Class Suit in Connecticut District Court --------------------------------------------------------------- P & S Printing LLC d/b/a Minuteman Press, on behalf of itself and all other similarly situated v. U S I, Inc. d/b/a USI, Inc., Case No. 3:14-cv-01893 (D. Conn., December 17, 2014) seeks relief pursuant to the Telecommunications Act. The Plaintiff is represented by: Aytan Y. Bellin, Esq. BELLIN & ASSOCIATES LLC 85 Miles Avenue White Plains, NY 10606 Telephone: (914) 358-5345 Facsimile: (212) 571-0284 E-mail: aytan.bellin@bellinlaw.com VERIZON NEW YORK: Removes "Weider" Class Suit to E.D. New York -------------------------------------------------------------- The class action lawsuit entitled Weider, et al. v. Verizon New York Inc., Case No. 510881/2014, was removed from the Supreme Court of the State of New York, County of Kings, to the U.S. District Court for the Eastern District of New York (Brooklyn). The District Court Clerk assigned Case No. 1:14-cv-07378-SJ-JO to the proceeding. The action is a putative class action brought on behalf of all residential and business customers of Verizon, who paid Verizon a Municipal Construction Surcharge for high speed Internet and FiOS services. The Plaintiffs allege that Verizon improperly charged the Surcharge to its customers after it was advised by a May 16, 2013 Order of the New York Public Service Commission that it could not do so. The Plaintiffs further allege that Verizon misrepresented to its current and prospective customers that all of the charges set forth on their invoices would conform to authorized tariffs, and that the statements that Verizon made as to its rates and as to pre-order estimates of charges in unspecified advertising, marketing and promotional materials were intentionally false and misleading. The Plaintiffs are represented by: Joseph H. Weiss, Esq. Mark D. Smilow, Esq. WEISSLAW LLP 1500 Broadway New York, NY 10036 Telephone: (212) 682-3025 Facsimile: (212) 682-3010 E-mail: jweiss@weisslawllp.com msmilow@weisslawllp.com The Defendant is represented by: Philip R. Sellinger, Esq. GREENBERG TRAURIG, LLP 200 Park Avenue New York, NY 10166 Telephone: (212) 801-9200 Facsimile: (212) 801-6400 E-mail: sellingerp@gtlaw.com WALGREEN CO: Accused of Hiding Malfeasance Claims Made by Ex-CFO ---------------------------------------------------------------- Lorraine Bailey at Courthouse News Service reports that Walgreen's proposed reorganization plan fails to address the impact of allegations of malfeasance made against the company's highest officers by its former CFO, a class action claims. James Hays filed a class action against Walgreen Co., 14 of its corporate officers, and Walgreens Boots Alliance in federal court. The complaint stems from Walgreen's announcement on August 6, 2014, that it was reducing its 2016 projected pharmacy earnings by $1.1 billion, which caused its share price to fall nearly 15 percent. A short time later, former Walgreen CFO Wade Miquelon claimed in court that he was wrongly made the scapegoat for a "shocking" calculation error leading to the reduction. Miquelon claimed that he pushed CEO Gregory Wasson and director Steven Pessina to revise the forecast earlier, as market-related issues made the company unable to meet its goal, but activist investors threatened Miquelon if he did not recommend raising, rather than lowering, the forecast. The allegations became public shortly before Walgreen filed documents with the SEC ahead of its corporate reorganization in connection with the acquisition of Alliance Boots, a European pharmacy company. Despite the serious allegations in the defamation complaint leveled at Pessina, whose ownership stake in and influence over the company will increase significantly if the share issuance is consummated, neither the S-4 nor the proxy even address those allegations," Hays says. "In fact, both the S-4 and the proxy fail to even reference the existence of the pending lawsuit filed by the company's former CFO. Moreover, the S-4 and the proxy do not disclose the impact of the company's reorganization on any potential derivative liability arising from the allegations against Walgreen's directors and officers in the defamation complaint," he continues. Hays claims such information is material to shareholders' vote on the proposed reorganization plan, as is other missing information, such as the board's motivation to accelerate the acquisition of Alliance Boots, and Pessina's final ownership stake in the company upon completion of the reorganization. The complaint also seeks information regarding the Board's decision to add a representative of activist hedge fund JANA Partners to the Board, predicated on an agreement obligating JANA to support the accelerated acquisition. Hays asks the court to enjoin Walgreen from convening a shareholder special meeting until the company supplements its S-4 and proxy statement to remedy the missing or misleading information. He is represented by Patrick Dahlstrom with Pomerantz LLP in Chicago, Gutavo Bruckner and Ofer Ganot with Pomerantz's New York office, Jeremy Friedman and Spencer Oster with Friedman Oster in New York, and Alfred Yates in Pittsburgh. WEST ASSET: Sued in N.Y. for Violating Fair Debt Collection Act --------------------------------------------------------------- Mordechai Palace, on behalf of himself and all other similarly situated consumers v. West Asset Management, Inc., Case No. 1:14- cv-07344 (E.D.N.Y., December 17, 2014) alleges violations of the Fair Debt Collection Practices Act. The Plaintiff is represented by: Adam Jon Fishbein, Esq. ADAM J. FISHBEIN, ATTORNEY AT LAW 483 Chestnut Street Cedarhurst, NY 11516 Telephone: (516) 791-4400 Facsimile: (516) 791-4411 E-mail: fishbeinadamj@gmail.com WILSHIRE CONSUMER: Has Invaded Class Members' Privacy, Suit Says ---------------------------------------------------------------- Alu Banarji, individually and on behalf of all others similarly situated v. Wilshire Consumer Credit, Case No. 3:14-cv-02967-BEN- KSC (S.D. Cal., December 17, 2014) seeks damages and other available legal remedies resulting from the alleged illegal actions of Wilshire in negligently, knowingly, and willfully contacting the Plaintiff on her cellular telephone in violation of the Telephone Consumer Protection Act, thereby, invading her privacy. Wilshire Consumer Credit is a business that loans money to consumers. The Defendant was a company engaged, by use of the mails and telephone, in the business of collecting a debt from the Plaintiff, which qualifies as a "consumer debt." The Plaintiff is represented by: Todd M. Friedman, Esq. Suren N. Weerasuriya, Esq. Adrian R. Bacon, Esq. LAW OFFICES OF TODD M. FRIEDMAN, P.C. 324 S. Beverly Dr., #725 Beverly Hills, CA 90212 Telephone: (877) 206-4741 Facsimile: (866) 633-0228 E-mail: tfriedman@attorneysforconsumers.com sweerasuriya@attorneysforconsumers.com abacon@attorneysforconsumers.com ********* 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. 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